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GolTV, Inc. v. Fox Sports Latin America Ltd.

United States District Court, S.D. Florida

September 19, 2017

GOLTV, INC. and GLOBAL SPORTS PARTNERS, LLP, Plaintiffs,
v.
FOX SPORTS LATIN AMERICA LTD., et al., Defendants.

          ORDER

          CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE

          THIS CAUSE came before the Court on Defendants, Confederación Sudamericana de Fútbol (“Conmebol”), Full Play Group, S.A., and Alejandro Burzaco's Consolidated Jurisdictional Motion to Dismiss [ECF No. 203] Plaintiffs, GolTV, Inc. and Global Sports Partners LLP's Amended Complaint [ECF No. 78]. The Court has carefully considered the Amended Complaint, Motion, Plaintiffs' Memorandum of Law in Opposition (“Response”) [ECF No. 218], Defendants' Consolidated Reply [ECF No. 228], the affidavits and exhibits filed contemporaneously with the briefing, [1] and applicable law.

         I. BACKGROUND

         On October 20, 2016, Plaintiffs, GolTV, Inc. and Global Sports Partners, filed an initial Complaint [ECF No. 1], alleging 16 named Defendants were involved at various levels of bribery schemes to award and obtain exclusive television rights to Conmebol's international soccer club tournaments. The allegations relied extensively on a 92-count Superseding Indictment [ECF No. 1-3][2] from a parallel criminal case in the Eastern District of New York, which charged 27 individual defendants with crimes including racketeering, conspiracy, wire fraud, and money laundering offenses in connection with securing exclusive worldwide rights for international soccer tournaments. (See generally Compl.).

         Plaintiffs allege they are victims of bribery schemes spanning from roughly 2009 to 2015, [3] during which all Defendants plotted to enable Defendant, T&T Sports Marketing Ltd., to secure exclusive television rights to Conmebol's international soccer tournaments. (See generally Am. Compl.). While the Amended Complaint peoples the field with multiple players and details several aspects of this scheme, only the parties and factual allegations relevant to the Motion are discussed below.

         Conmebol is “one of the oldest and most prestigious soccer confederations in the world, ” and is exclusively authorized to direct and control soccer within the South American region by soccer's international governing body, the Fédération Internationale de Football Association. (Id. 32 (citation omitted)). It is organized as a confederation of national soccer associations from ten countries in South America. (See id.). Its Executive Committee is its permanent authoritative body and as of 2013 consists of one president, three vice presidents, a secretary general, a treasurer, and six directors. (See id.).

         GolTV is a Florida-based television channel that provides Spanish- and English-language soccer programming in the United States. (See Id. ¶ 14[4]). Global Sports Partners is an English partnership formed by GolTV's owners to acquire television rights to international soccer tournaments for GolTV. (See Id. ¶ 16).

         T&T Sports Marketing is a Cayman Islands company owned for much of 2005 through 2015 by Defendants, Fox Pan American[5] and Torneos y Competencias. (See Id. ¶ 17). Torneos has historically held exclusive agreements to produce and distribute television programming related to South American league soccer matches. (See Id. ¶ 24). Alejandro Burzaco, an Argentine citizen, had an ownership share in Torneos and variously served as the company's general manager, legal representative, and president of its board of directors between 2005 and 2015. (See Id. ¶ 29). GolTV and Fox are competitors within the market for professional soccer programming, although they also do business together. (See Id. ¶ 14). Full Play Group is a Uruguayan corporation and sports media and marketing business with its principal offices in Argentina and Uruguay, and Hugo and Mario Jinkis serve as its controlling officers. (See Id. ¶ 31).

         Among the greatest prizes these companies vie for are the broadcasting rights to the South American tournaments run by Conmebol. (See Id. ¶¶ 56-58). The tournaments relevant to the Amended Complaint include the Copa Libertadores, the Copa Sudamericana, and the Recopa Sudamericana. (See Id. ¶¶ 55-56). Only Conmebol, by decision of its Executive Committee, can award television rights for the tournaments. (See Id. ¶ 59).

         Between 2005 and 2015, Burzaco, Full Play, and the remaining Defendants allegedly engaged in several acts to further the schemes to bribe Conmebol officials in order to secure broadcasting rights to the club tournaments. (See generally Am. Compl.).

         Specifically, Burzaco, as majority owner of Torneos, which owned 25 percent of T&T Sports Marketing, caused T&T Sports Marketing to wire bribe and kickback payments to Conmebol officials. (See Id. ¶¶ 5, 42, 64, 66). In 2005, he took over day-to-day management of Torneos and learned of the annual bribe payments to Conmebol officials which had begun in 2000 under one of the Torneos founders, Luis Nofal. (See Id. ¶¶ 62, 67). Burzaco helped to continue the payment of bribes to Conmebol officials until 2014. (See Id. ¶ 67). Beginning in 2009, he also acceded to demands for bribes from officials at Conmebol's member associations, paying annual six-figure sums to secure these officials' support for T&T Sports Marketing's exclusive rights to the soccer tournaments. (See Id. ¶ 69). He oversaw increases in the bribe payments starting in 2010 and laundered money through intermediary entities, including Full Play. (See Id. ¶¶ 69, 95-96).

         Torneos and Fox also relied on Full Play to launder money through its own intermediary entities to pay additional bribes and kickbacks to Conmebol officials. (See Id. ¶¶ 72, 101-07). To avoid detection, some bribes were wired to Full Play bank accounts and held for periodic disbursement to the officials. (See Id. ¶ 76 (citation omitted)).

         Plaintiffs filed the Amended Complaint on March 6, 2017, after perfecting service of process and narrowing the list of Defendants. The Court entered an Order [ECF No. 156] providing for a period of jurisdictional discovery for Plaintiffs to defend any motion to dismiss on grounds of lack of jurisdiction or improper venue.

         Plaintiffs assert Conmebol's, Full Play's, and Burzaco's activities in the state of Florida are sufficient to subject them to the jurisdiction of this Court. (See Id. ¶¶ 38-50). Plaintiffs contend venue is proper in the Southern District of Florida because “a substantial part of the events, omissions, communications, and transactions giving rise to Plaintiffs' claims occurred in this judicial district, including wire transfers of bribes . . . and other criminal wrongdoing.” (Id. ¶ 51 (alteration added)). Plaintiffs' specific allegations, and Defendants' respective rebuttals, are more fully developed in the discussion as to each part of the Motion.

         II. PERSONAL JURISDICTION

         Conmebol and Full Play move to dismiss for lack of personal jurisdiction. (See generally Mot.). The Court reviews the legal standard before analyzing the jurisdictional allegations, first as to Conmebol and then as to Full Play.

         A. Legal Standard

         Under Federal Rule of Civil Procedure 12(b)(2), a defendant may move to dismiss a claim against it by asserting the defense of lack of personal jurisdiction. In the case of a nonresident defendant, a federal court may properly exercise personal jurisdiction only if the requirements of (1) the relevant state long-arm statute; and (2) the Due Process Clause of the Fourteenth Amendment to the United States Constitution are both satisfied. See Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1214 (11th Cir. 1999) (citing Sculptchair, Inc. v. Century Arts Ltd., 94 F.3d 623, 626 (11th Cir. 1996)).

         “A plaintiff seeking to obtain jurisdiction over a non-resident defendant initially need only allege sufficient facts to make out a prima face case of jurisdiction.” Id. (citing Electro Eng'g Prods. Co. v. Lewis, 352 So.2d 862, 864 (Fla. 1977)). “The district court must accept the facts alleged in the complaint as true, to the extent they are uncontroverted by the defendant's affidavits.” Peruyero v. Airbus S.A.S., 83 F.Supp.3d 1283, 1286 (S.D. Fla. 2014) (citing Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000)). If a plaintiff pleads sufficient facts to support the exercise of personal jurisdiction, the burden shifts to the defendant to make a prima facie showing of the inapplicability of the state's long-arm statute. See Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000) (per curiam) (quoting Prentice v. Prentice Colour, Inc., 779 F.Supp. 578, 583 (M.D. Fla. 1991)).

         If the defendant satisfies its burden, the burden then shifts back to the plaintiff to “substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and not merely reiterate the factual allegations in the complaint.” Id. (citation omitted). “The district court must construe all reasonable inferences in the light most favorable to the plaintiff when dealing with conflicting evidence.” Peruyero, 83 F.Supp.3d at 1287 (citing PVC Windoors, Inc. v. Babbitbay Beach Const., N.V., 598 F.3d 802, 810 (11th Cir.2010)) (other citation omitted).

         B. Specific Jurisdiction, Generally

         As stated, the Court may exercise personal jurisdiction over Conmebol and Full Play if the requirements of (1) the relevant state long-arm statute; and (2) the Due Process Clause of the Fourteenth Amendment to the United States Constitution are both satisfied. See Posner, 178 F.3d at 1214 (citing Sculptchair, Inc., 94 F.3d at 626). Florida's long-arm statute recognizes two kinds of personal jurisdiction over defendants: specific jurisdiction and general jurisdiction. See Fla. Stat. §§ 48.193(1)-(2). The Amended Complaint asserts only specific personal jurisdiction over Conmebol and Full Play. (See Am. Compl. ¶¶ 41, 44-46, 48-49).

         A non-resident defendant may be subject to specific personal jurisdiction under Florida's long-arm statute if the claim asserted against the defendant arises from its forum-related contacts and if those contacts fall in one of the nine enumerated categories listed under section 48.193(1)(a), Florida Statutes. See Wolf v. Celebrity Cruises, Inc., 683 F. App'x 786, 790 (11th Cir. Mar. 28, 2017) (per curiam) (quoting Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1203-04 (11th Cir. 2015)); Hard Candy, LLC v. Hard Candy Fitness, LLC, 106 F.Supp.3d 1231, 1239 (S.D. Fla. 2015).

         Plaintiffs broadly assert the Court has specific jurisdiction over all Defendants because they each committed tortious acts within Florida and/or committed tortious acts directed at Florida and caused injury to GolTV in Florida[6] (see Am. Compl. ¶ 41) - “[c]ommitting a tortious act” being one of the nine enumerated acts under section 48.193(1)(a), [7] FLA. STAT. § 48.193(1)(a)(2) (alteration added). Additionally, Plaintiffs allege the Court has specific jurisdiction over Conmebol and Full Play because section 48.193(1)(a)(2) supports personal jurisdiction over a defendant where co-conspirators commit acts in Florida in furtherance of a conspiracy even when the defendant did not commit any acts in or have any relevant contacts with Florida. (See Am. Compl. ¶ 46).

         A nonresident defendant can commit a tortious act within Florida even if he commits tortious acts outside the state, if those acts cause injury within Florida. See Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1353 (11th Cir. 2013) (citation omitted). “[T]he appropriate inquiry is whether the tort as alleged occurred in Florida, and not whether the alleged tort actually occurred.” Hard Candy, 106 F.Supp.3d at 1239 (alteration added; citations and internal quotation marks omitted). Further, the long-arm statute provides a defendant's contacts may be based not only on the defendant's personal activities, but also on the actions of the defendant's agents. See Fla. Stat. § 48.193(1)(a) (stating a person submits him or herself to personal jurisdiction under the statute when he/she “personally or through an agent does any of the acts enumerated in this subsection”).

         C. Imputing Jurisdictional Contacts

         Plaintiffs assert Conmebol and Full Play have contacts imputed to them under the tortious activity provision by virtue of their agents' and co-conspirators' actions in Florida.

         Agency-based personal jurisdiction is expressly contemplated by the long-arm statute. See Hard Candy, 106 F.Supp.3d at 1239 (citation omitted). Jurisdiction can apply to parent-subsidiary relationships as well as relationships between members of a limited liability company and the company itself. See Id. at 1241 (citations omitted). “[G]eneral agency principles apply when determining personal jurisdiction.” UnitedHealthcare of Fla., Inc. v. Am. Renal Assocs. Holdings, Inc., No. 16-81180-CIV-MARRA/Matthewman, 2017 WL 1832436, at *6 (S.D. Fla. May 8, 2017) (alteration added) (citing Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1272 (11th Cir. 2002); Taylor v. Phelan, 912 F.2d 429, 433 (10th Cir. 1990) (per curiam)).

         “In simple terms, agency may be defined as the relation which results where one person [or entity], called the principal, authorizes another, called the agent, to act for [it] with more or less discretionary power, in business dealings with third persons.” Econ. Research Analysts, Inc. v. Brennan, 232 So.2d 219, 221 (Fla. 4th DCA 1970) (alterations added; citation omitted). In the antitrust context, the test for finding an agency relationship is apparent authority. See Am. Soc'y Mech. Eng'rs v. Hydrolevel Corp., 456 U.S. 556, 565-66 (1982).

         Apparent authority “arises where a principal allows or causes others to believe the agent possesses . . . authority [to act for the principal], as where the principal knowingly permits the agent to assume such authority or where the principal by his actions or words holds the agent out as possessing it.” Jackson Hewitt, Inc. v. Kaman, 100 So.3d 19, 31 (Fla. 2d DCA 2011) (alterations added; citation omitted). “However, that principle of law is qualified by the added principle that under some circumstances a party seeking to rely upon the representations of an agent may have a duty to inquire further.” Palafrugell Holdings, Inc. v. Cassel, 940 So.2d 492, 494 (Fla. 3d DCA 2006) (citation omitted). That duty can arise where an agent acts “facially contrary” to the interests of his principal. Id.

         Plaintiffs also seek to extend jurisdiction to Conmebol based on its alleged co-conspirators acting and causing injury in Florida. The elements of civil conspiracy in Florida are: (1) an agreement between two or more parties (2) to do an unlawful act; (3) doing an overt act to further the conspiracy; and (4) damage to the plaintiff as a result of the acts done under the conspiracy. See Laterza v. JPMorgan Chase Bank, N.A., 221 F.Supp.3d 1347, 1352-53 (S.D. Fla. 2016) (quoting Raimi v. Furlong, 702 So.2d 1273, 1284 (Fla. 3d DCA 1997)). Florida's long-arm statute supports personal jurisdiction over an “alleged conspirator where any other co-conspirator commits an act in Florida in furtherance of the conspiracy, even if the defendant over whom personal jurisdiction is sought individually committed no act in, or had no relevant contact with, Florida.” United Techs. Corp. v. Mazer, 556 F.3d 1260, 1281-82 (11th Cir. 2009) (citations omitted) (citing cases); see also Execu-Tech Bus. Sys. v. New Oji Paper Co., 752 So.2d 582, 586 (Fla. 2000).

         D. Jurisdiction over Conmebol Under Florida Statute Section 48.193(1)(a)(2)

         1. Jurisdictional Allegations

         As Plaintiffs bear the initial burden of pleading allegations sufficient to establish a prima facie case of specific jurisdiction over Conmebol, the Court turns to the Amended Complaint. The Amended Complaint raises five claims against Conmebol: conspiracy in restraint of trade in the Americas television rights market in violation of section 1 of the Sherman Act (Count III); conspiracy in restraint of trade in the U.S. television programming market in violation of section 1 of the Sherman Act (Count IV); conspiracy in restraint of trade in the U.S. television advertising airtime market in violation of section 1 of the Sherman Act (Count V); conspiracy to monopsonize the Americas television rights market in violation of section 2 of the Sherman Act (Count VIII); and violation of the Florida Deceptive and Unfair Trade Practices Act, Florida Statutes section 501.201 et seq. (Count IX). (See generally Am. Compl.). Each count involves “tortious acts” under the Florida long-arm statute. (See Resp. 42 & n.17 (citing cases identifying antitrust, FDUTPA, and RICO claims as torts for the purposes of the Florida long-arm statute)).

         Plaintiffs allege Conmebol actively participated in the scheme to trade money payments to Conmebol officials for exclusive television rights to broadcast the soccer tournaments. (See generally Am. Compl.). For instance, Conmebol, through its agents, [8] Eugenio Figueredo and Juan Angel Napout, communicated and traveled to and from Florida in furtherance of the tournament bribes. (See Id. ¶ 45). Plaintiffs also allege Conmebol knew of and participated in a larger agreement among the Defendants to continue to provide kickbacks to Conmebol officials in exchange for Conmebol's awarding of broadcast rights for the tournaments to T&T Sports Marketing (see Id. ¶ 46); and at least some of the Defendants acted in furtherance of this conspiracy in Florida (see Id. ¶¶ 42-44).

         These allegations set forth a prima facie case of specific jurisdiction under the “committing a tortious act” provisions of Florida's long-arm statute. The burden shifts to ...


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