Hyewoong Yoon v. Seyeon Lee

Decision Date20 December 2019
Docket Number No. 19-10280-PBS,Consolidated Civil Actions No. 19-10278-PBS, No. 19-10281-PBS
Citation433 F.Supp.3d 18
Parties HYEWOONG YOON, Plaintiff, v. SEYEON LEE, Juhyung Lee, and Korean Broadcasting System, Defendants.
CourtU.S. District Court — District of Massachusetts

Bernard D. Posner, Furman Gregory Deptula, Boston, MA, Joseph Perl, Law Office of Joseph Perl, Watertown, MA, for Plaintiff.

Douglas S. Brooks, Joseph B. Hernandez, LibbyHoopes, P.C., Boston, MA, for Defendants.

MEMORANDUM AND ORDER

Hon. Patti B. Saris, Chief United States District Judge

INTRODUCTION

This dispute arises out of a television broadcast aired in South Korea and posted on the internet about Hyewoong Yoon and his father, who is the Chief Executive Officer of an international Korean restaurant company. Yoon alleges that Korean Broadcasting System ("KBS"), and its employees, Seyeon Lee and Juhyung Lee, unlawfully wiretapped him in Massachusetts and aired the recordings on various internet sites watched in the United States. He asserts claims for violation of the Massachusetts Wiretapping Statute (Count I), defamation (Count II), and commercial disparagement, injurious falsehood, and trade libel (Count III).

Yoon originally filed three separate lawsuits against KBS, Seyeon Lee, and Juhyung Lee. The Court consolidated all three cases into this action on June 3, 2019. Prior to the consolidation, Defendants individually filed motions to dismiss all three claims for lack of subject matter jurisdiction. All three motions sought to dismiss the claims based on the Foreign Sovereign Immunities Act and the doctrine of forum non conveniens. Juhyung Lee also moved to dismiss the claims on the basis that the Court lacks personal jurisdiction over him.

After hearing, the Court ALLOWS IN PART and DENIES IN PART Defendants' motions to dismiss.

FACTUAL BACKGROUND

The following factual background is drawn from the complaint and evidence presented by the parties. In deciding a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), the Court may consider evidence outside of the complaint. See Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363-64 (1st Cir. 2001).

I. The Parties

Yoon is a 22-year-old South Korean citizen, living temporarily in Massachusetts on an E-2 Visa.1 Yoon's father, HongGeun Yoon ("Yoon Sr."), is the Chief Executive Officer of BB.Q Chicken ("BB.Q"). BB.Q has approximately 300 restaurants in over 50 countries, including one location in Allston, Massachusetts.

KBS is the public broadcasting network of the Republic of Korea ("South Korea"). The South Korean government founded KBS, as its sole capital investor, pursuant to Article 43 of the Broadcasting Act. The Broadcasting Act established KBS to provide "a culture of fair and objective broadcasting in Korea," and to deliver effective broadcasting both at home and abroad. Dkt. No. 6 at 2. Though KBS functions much like a private media company, the South Korean government retains significant influence over its operations. KBS annually submits its operating budget and provides financial statements to the National Assembly (South Korea's legislative body). Additionally, the Broadcasting Act provides that the South Korean president shall appoint KBS's president. The president of South Korea also retains the final appointment power of KBS's Board of Directors, after the Korean Communications Commission nominates prospective appointees. Though KBS does receive government subsidies, it also generates revenue from the traditional sources relied on by private media companies. KBS accepts regular commercial advertisers, albeit subject to the government's pre-approval. KBS charges its advertisers fees that vary according to the visibility of the desired timeslot. KBS's Board of Directors determines the licensing fees, though these fees are ultimately subject to approval by the South Korean National Assembly.

KBS takes steps to limit potential political influence. For example, KBS prohibits its Board of Directors from being actively affiliated with political parties and, during the appointment process, anyone who has been active within the past three-years is subject to disqualification. While the company submits operational plans and financial accounting to the government, KBS formulates those plans independently.

Seyeon Lee is a news reporter for KBS, working in the Social Affairs Division 2, News and Sports Department. Juhyung Lee is her supervisor and the manager of that department.

II. The KBS Broadcast

Yoon moved to the United States in 2007. For approximately nine-years, he lived with a guardian, Hyunwook Joo ("Joo"), in New Jersey, until he moved to Massachusetts in 2016. At some point in 2018, KBS became aware of allegations that Yoon Sr. was involved in an embezzlement scheme, wherein Yoon Sr. allegedly misappropriated BB.Q funds to finance his son's education and living expenses. In an attempt to investigate this accusation, KBS dispatched Seyeon Lee to the United States on October 25, 2018.

She first visited New Jersey, where she interviewed Yoon's former guardian. In the interview, Joo discussed his experience caring for Yoon and relayed his familiarity with the alleged embezzlement scheme. After this interview, Seyeon Lee traveled to Boston, hoping to locate Yoon himself. While there, she visited Harvard University, where Yoon was once enrolled in its Extension School. In a recorded exchange with a school employee, she inquired into whether the school would have provided Yoon with a student visa. The school employee confirmed that Harvard University does not provide visas to Extension School students. Ultimately, KBS concluded that Yoon resides in the United States on an E-2 Visa. KBS reported that it had obtained this document, which listed Yoon as a "necessary" employee of BB.Q and referred to him as a full-time director of BB.Q.

Seyeon Lee visited BB.Q's Allston location on two consecutive days. Yoon was absent on both occasions. While there, Seyeon Lee recorded an interview with two employees, neither of whom had met Yoon or observed him at the restaurant. One of these employees did note, however, that he had previously heard about Yoon.

Seyeon Lee then called Yoon. During their conversation, Seyeon Lee confronted Yoon about his absence from work. She also probed a discrepancy between his E-2 Visa, which listed him as an employee in New Jersey, and his statements that he currently lives in Boston. Unbeknownst to Yoon, Seyeon Lee secretly recorded the entire phone call.

KBS later featured this recording, and the two other recorded interviews, as part of the first video in a two-part news special spotlighting the alleged embezzlement scheme. KBS broadcasted both videos online through several different websites, including its own site and YouTube. The first video, the one at issue before this Court, garnered approximately one million online views through various web outlets.

III. The Korean Litigation

On November 9, 2018, before KBS aired the first video, Yoon and Yoon Sr. applied for a preliminary injunction in South Korea to prevent the broadcast from airing. The Seoul Southern District Court granted a conditional injunction, which allowed KBS to broadcast its video provided the news special accurately reflected both parties' viewpoints. After the video aired on November 20, 2018, the Yoons filed a lawsuit in South Korea alleging that KBS had violated the conditional injunction ruling. The Seoul Southern District Court dismissed that suit, which the Yoons have contested in a pending appeal. On November 20, 2018, the Yoons also filed a defamation and libel suit in South Korea against all three Defendants in connection with the broadcast (the "South Korean Action"). As damages, they sought KRW 3 billion (approximately $2.5 million) from the defendants. In addition to their civil suit, the Yoons filed a separate defamation action against the defendants under the Korean Criminal Code. The criminal matter is currently under investigation by Korean authorities. Relatedly, Yoon Sr. is the subject of an ongoing South Korean criminal investigation for allegedly misappropriating BB.Q's funds.

DISCUSSION
I. The Foreign Sovereign Immunities Act

Defendants argue that this Court lacks subject matter jurisdiction under the Foreign Sovereign Immunities Act ("FSIA") because KBS is the public broadcasting network of South Korea and immune from suit in the United States.2

"[T]he FSIA provides the sole basis for obtaining jurisdiction over a foreign state in federal court." Argentine Republic v. Amerada Hess Shipping Co., 488 U.S. 428, 439, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). "It establishes a presumption of foreign sovereign immunity from the jurisdiction of the courts of the United States unless one of its enumerated exceptions to immunity applies." Universal Trading & Inv. Co. v. Bureau for Representing Ukr. Interests in Int'l and Foreign Courts, 727 F.3d 10, 16 (1st Cir. 2013). This immunity extends to foreign officers and agents when the foreign instrumentality is a required party or when the action against the agent in his official capacity should be treated as an action against the foreign state itself as the real party in the law. See Samantar v. Yousuf, 560 U.S. 305, 324-325, 130 S.Ct. 2278, 176 L.Ed.2d 1047 (2010). Although numerous circuits have addressed the burdens of the proof and production when a defendant raises and FSIA defense, the First Circuit has not yet done so. Still, it has suggested that a burden-shifting framework may be appropriate. See Universal Trading & Inv. Co., 898 F. Supp. 2d 301, 309 (D. Mass. 2012), aff'd, 727 F.3d 10 (1st Cir. 2013) (assuming, without deciding, that a burden-shifting framework applies.). Thus, the Court will use the burden-shifting framework set out in Virtual Countries, Inc. v. Republic of South Africa, 300 F. 3d 230, 242 (2d Cir. 2002).

Yoon does not dispute that KBS has presented a prima facie case that it is an...

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