United States District Court, D. Massachusetts
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Bernard D. Posner, Furman Gregory Deptula, Boston, MA, Joseph
Perl, Law Office of Joseph Perl, Watertown, MA, for
Douglas S. Brooks, Joseph B. Hernandez, LibbyHoopes, P.C.,
Boston, MA, for Defendants.
Patti B. Saris, Chief United States District Judge.
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
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
hearing, the Court ALLOWS IN PART
and DENIES IN PART Defendants'
motions to dismiss.
following factual background is drawn from the complaint and
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).
a 22-year-old South Korean citizen, living temporarily in
Massachusetts on an E-2 Visa. 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.
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.
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 ...