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Sa v. T-Mobile USA Inc.

November 2, 2009

VIVENDI SA; VIVENDI HOLDING I CORP., PLAINTIFFS-APPELLANTS,
v.
T-MOBILE USA INC.; T-MOBILE DEUTSCHLAND GMBH T-MOBILE INTERNATIONAL AG; DEUTSCHE TELEKOM AG; ZYGMUNT SOLORZ-ZAK, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding. D.C. No. 2:06-cv-01524-JLR.

The opinion of the court was delivered by: Bea, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted August 3, 2009-Seattle, Washington

Before: Harry Pregerson, John T. Noonan, and Carlos T. Bea, Circuit Judges.

OPINION

This appeal concerns a French corporation's allegations that a German corporation and a Polish billionaire colluded fraudulently in Europe to wrest control of a Polish wireless telephone company from the French corporation. The French corporation sought a remedy*fn1 for these alleged wrongs in-of all places-the United States District Court for the Western District of Washington. The district court dismissed the case on the ground of forum non conveniens. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

The Parties

Vivendi S.A. and Vivendi Holding I Corp.*fn2 (Vivendi Holding) (collectively Vivendi) appeal the district court's order dismissing their complaint on forum non conveniens grounds. Vivendi S.A. is a French corporation. Vivendi Holding is a Delaware corporation.

Vivendi filed suit against Deutsche Telekom AG, T-Mobile International AG, T-Mobile Deutschland GmbH, T-Mobile USA, Inc. (collectively T-Mobile), and Zygmunt Solorz-Zak (Solorz) in the Western District of Washington, asserting a claim under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962, and a claim for common-law fraud. Deutsche Telekom, T-Mobile Deutschland, and T-Mobile International are German corporations. T-Mobile USA is a Delaware corporation with its principal place of business in Bellevue, Washington. Solorz is a Polish citizen.

Factual and Procedural Background

The facts in this case, spanning ten years of European business transactions and litigation, could be difficult to follow. Therefore, we relate here only those facts essential to the disposition of this appeal.*fn3

I. The Battle for Control of Polska Telefonia

In 1999, both T-Mobile Deutschland and Vivendi S.A. took an interest in the Polish wireless telephone company, Polska Telefonia Cyfrowa Sp. z o.o. (Polska Telefonia). At the time, Polish law precluded foreign investors from holding more than 49% of the shares of any Polish telecommunications company.*fn4 The German company T-Mobile Deutschland, which at the time held a 22.5% interest in Polska Telefonia, acquired an additional 26.5% interest from other shareholders, for a total of 49%.

While T-Mobile Deutschland was buying up shares, so was Vivendi S.A., a French corporation. To facilitate its intended takeover of Polska Telefonia, Vivendi S.A. partnered with a Polish company, Elektrim S.A. Vivendi S.A. and Elektrim established a joint venture that operated through a holding company called Telco. Over time, Vivendi S.A. invested $2.5 billion to acquire a 51% interest in Telco. Pursuant to the joint venture agreement, Elektrim transferred its 37.1% interest in Polska Telefonia to ...


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