The trial court had dismissed NDTV’s Amended Complaint on March 4, 2013 on forum non conveniens grounds
BestMediaInfo Bureau | Delhi | May 23, 2013
NDTV has appealed to the Appellate Division of Supreme Court of the State of New York, First Judicial Department, and sought that the trial court’s dismissal of the suit as to Nielsen should be reversed. The trial court, which was hearing procedural arguments on jurisdiction, particularly whether the US or India was the appropriate forum for the case that NDTV has filed against Nielsen and Kantar – had dismissed NDTV’s Amended Complaint on March 4, 2013 on forum non conveniens grounds and said that India would be a more convenient forum than the USA.
In a pre-argument statement filed in the court, NDTV has said that the trial court erred in dismissing the Amended Complaint against Nielsen on forum non conveniens grounds because (i) it failed to accept as true the allegations in the Amended Complaint concerning the New York ownership and control of the Nielsen Process, Nielsen’s control over the implementation of the Nielsen Process by its licensees around the world, including in India, and Nielsen’s New York-led investigations of NDTV’s allegations; (ii) it disregarded that Nielsen’s headquarters and senior management (and several key witnesses and thus evidence) are located in New York; (iii) it wrongly concluded that a majority of defendants were foreign; and (iv) as the trial court itself found, NDTV has no ability to bring its claims against Nielsen in India because the India courts have no jurisdiction over New York-headquartered Nielsen.
NDTV further stated that the trial court erred in dismissing the Amended Complaint against Nielsen for failure to include an indispensable party (TAM) because (i) the court wrongly concluded that NDTV’s claims address TAM’s misconduct in India, when in fact NDTV’s claims are based solely of the conduct of New York-based Nielsen; (ii) NDTV lacks an “effective remedy” against Nielsen other than this action since (as the trial court itself recognised), the Indian courts likely lack jurisdiction over Nielsen; and (iii) the court failed to give due consideration as to whether a protective provision could be entered to avoid prejudice to any Indian non-party or to address whether a money judgement against Nielsen would be effective in the absence of any Indian non-party.
NDTV also added that the trial court erred in dismissing its claims against Nielsen for negligence after it had already determined that it would dismiss the claims on forum non conveniens grounds. In any event, contrary to the trial court’s rulings, the negligence claims properly pled that Nielsen breached a duty that it owed to NDTV and the breach resulted in compensable injury that is not barred by the economic loss rule.