Opposition Brief — Align Corporation Limited, Petitioner v. Allister Mark Boustred, et al.

No. 17-1227

IN THE

Supreme Court of the United States

ALIGN CORPORATION LIMITED,

v.

Petitioner,

ALLISTER MARK BOUSTRED AND HORIZON

HOBBY INC. D/B/A/ HORIZON HOBBY,

Respondents.

On Petition for a Writ of Certiorari to the

Colorado Supreme Court

RESPONDENT BOUSTRED’S BRIEF IN

OPPOSITION

MICHAEL O’B KEATING

DEIRDRE E. OSTROWSKI

MELISSA A. HAILEY

1290 Broadway, Suite 600

Denver, Colorado 80203

(303) 534-0401

LESLIE A. BRUECKNER

(Counsel of Record)

PUBLIC JUSTICE, P.C.

475 14th Street, Suite 610

Oakland, CA 94612

lbrueckner@publicjustice.net

(510) 622-8205

i

QUESTIONS PRESENTED

1. Whether this Court has jurisdiction under 28

U.S.C. § 1257 to review an interlocutory state court

ruling on personal jurisdiction that remanded for further proceedings and expressly allows Petitioner to renew its challenge to personal jurisdiction at any time

before the end of trial.

2. Whether a case with an underdeveloped evidentiary record that was decided on a motion to dismiss, where Respondents were only required to make

a prima facie showing that Petitioner purposefully

availed itself of the forum state, is an appropriate vehicle to decide the proper approach to stream of commerce jurisdiction.

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................iv

INTRODUCTION AND SUMMARY ............... 1

COUNTERSTATEMENT OF THE CASE ....... 4

A. This Lawsuit ........................................ 4

B. Align's Motion to Dismiss ................... 4

C. The Limited Jurisdictional

Discovery.............................................. 5

D. Respondents' Oppositions ................... 5

E. Align's Reply ........................................ 7

F. The Trial Court's Ruling ..................... 7

G. The Court of Appeals' Decision ........... 9

H. The Petition for Review ..................... 10

I. The Colorado Supreme Court's

Decision .............................................. 11

REASONS FOR DENYING REVIEW ........... 12

I.

This Court Lacks Jurisdiction Over

This Case ................................................. 12

A. This Court's Jurisdiction is Limited

to Review of Final State Court

Decisions ............................................ 12

B. The State Court Has Not Issued a

Final Judgment or Decree................. 13

C. This Case Does Not Fit the Categories

in Cox Broadcasting Corp. Where this

Court Deemed a State Decision Final

on a Federal Issue ............................. 14

iii

II.

This Case is a Poor Vehicle for Review .. 18

III. There is No Urgent Need to Decide

Align's Question Presented .................... 22

IV. The Lower Court's Decision Was

Correct ..................................................... 24

CONCLUSION................................................ 30

iv

TABLE OF AUTHORITIES

Page(s)

Cases:

Ainsworth v. Moffett,

116 F.3d 174 (5th Cir.), cert. denied,

134 S. Ct. 644 (2013) ..................................... 22, 24

Archangel Diamond Corp. v. Lukoil,

123 P.3d 1187 (Colo. 2005) .................................... 5

Asahi Metal Industry Co. v. Superior Court,

480 U.S. 102 (1987) ......................................passim

Book v. DoubleStar Dongfeng Tyre Co.,

860 N.W.2d 576 (Iowa 2015) ............................... 22

Brown v. Meter,

681 S.E.2d 382 (N.C. App. 2009), rev’d

sub nom., Goodyear Dunlop Tires

Operations, S.A. v. Brown, 131 S. Ct.

2846 (2011) .......................................................... 21

Calder v. Jones,

465 U.S. 783 (1984) ............................................. 17

In re Chinese Drywall Prod. Liab. Litig.,

753 F.3d 521 (11th Cir. 2014) ....................... 22, 23

Cox Broadcasting Corp. v. Cohn,

420 U.S. 469 (1975) ................................. 14, 15, 16

Daimler AG v. Bauman,

571 U.S. 117 (2014) ............................................. 28

v

Ex parte Edgetech I.G., Inc.,

159 So.3d 629 (Ala. 2014) .................................... 22

State ex rel Ford Motor Co. v. McGraw,

788 S.E.2d 319 (W. Va. 2016).............................. 22

Goettman v. N. Fork Valley Rest.,

176 P.3d 60 (Colo. 2007) ...................................... 20

Int’l Shoe Co. v. Washington,

326 U.S. 310 (1945) ............................................. 28

J. McIntyre Machinery, Ltd., v. Nicastro,

564 U.S. 873 (2011) ......................................passim

Jefferson v. City of Tarrant, Alabama,

522 U.S. 75 (1997) ......................................... 12, 13

Johnson v. California,

541 U.S. 428 (2004) ............................................. 16

Kulko v. Superior Court of California,

436 U.S. 84 (1978) ......................................... 17, 18

Marks v. United States,

430 U.S. 188 (1977) ......................................... 9, 24

Nicastro v. McIntyre Mach. America, Ltd.,

987 A.2d 575 (N.J. 2010) ..................................... 17

Noll v. American Biltrite,

395 P.3d 1021 (Wash. 2017) ................................ 23

North Dakota State Bd. of Pharmacy v.

Snyder’s Drug Stores, Inc.,

414 U.S. 156 (1973) ....................................... 12, 13

vi

Polar Electro Oy v. Suunto Oy,

829 F.3d 1343 (Fed. Cir. 2016)............................ 22

Radio Station WOW, Inc. v. Johnson,

326 U.S. 120 (1945) ............................................. 13

Rilley v. Money Mutual,

884 N.W.2d 321 (Minn. 2016), cert.

denied, 137 S. Ct. 1331 (2017) ...................... 23, 24

Rush v. Savchuk,

444 U.S. 320 (1980) ............................................. 17

Russell v. SNFA,

987 N.E.2d 778 (Ill.), cert. denied,

134 S. Ct. 295 (2013) ..................................... 22, 24

Shaffer v. Heitner,

433 U.S. 186 (1977) ............................................. 17

State v. Atl. Richfield Co.,

142 A.3d 215 (Vt. 2016) ....................................... 22

State v. LG Electronics,

375 P.2d 1035 (Wash. 2016), cert. denied,

137 S. Ct. 648 (2017) ..................................... 23, 24

State v. NV Sumatra Tobacco Trading Co.,

403 S.W.3d 726 (Tenn. 2013) .............................. 23

Willemsen v. Invacare Corp.,

282 P.3d 867 (Ore. 2012) ..................................... 22

Williams v. Romarm, SA,

756 F.3d 777 (D.C. Cir. 2014) ............................. 23

vii

World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286 (1980) ......................................passim

Statutes:

28 U.S.C. § 1257 .............................................. 1, 12, 14

Colo. Rev. Stat. § 13-21-402(2) ................................... 6

Colo. R. Civ. P. 15(a) ................................................. 16

Other Authorities:

15A Charles Alan Wright et al., Fed. Prac.

& Proc. Juris. § 3914.6 ........................................ 13

Howard B. Stravitz, Personal Jurisdiction

in Cyberspace: Something More Is

Required on the Electronic Stream of

Commerce, 49 S.C. L. Rev. 925 (1998) ................ 18

Stephen M. Shapiro et al., Supreme Court

Practice (10th ed. 2013) ................................. 14, 15

1

INTRODUCTION AND SUMMARY

Petitioner Align Corporation Limited (“Align”) is a

foreign corporation located in Taiwan that avails itself

of the American marketplace by engaging U.S. distributors to sell its products to domestic retailers, which

in turn sell its products to American consumers.

Align manufactures remote controlled helicopters

and remote-controlled helicopter replacement parts.

One of Align’s replacement part products—a main motor rotor holder—was purchased by Respondent Allister Mark Boustred (“Boustred”) from a hobby store in

Colorado. This product malfunctioned in Colorado

and caused Boustred serious permanent injury there.

Boustred filed suit against Align in Colorado state

court, seeking damages for his injuries. Even though

Boustred purchased and was injured by Align’s product in Colorado, and even though Align’s distributors

have sold hundreds of thousands of dollars worth of

its products in Colorado, Align argues it would violate

due process to allow it to be sued in that state.

The Court should deny certiorari for three reasons:

First, the decision below is not final, leaving this

Court without jurisdiction. See 28 U.S.C. § 1257. The

Colorado’s Supreme Court’s decision is an interlocutory ruling, leaving multiple issues of state and federal law still to be litigated in state court. Beyond

that, the decision is not a final ruling even as to personal jurisdiction because, under Colorado law, Boustred was merely required to make a prima facie

showing to withstand Align’s motion to dismiss, and

the lower court specifically ruled that Align may renew its motion any time prior to the end of trial, in

which case Boustred will have to meet a higher burden of showing jurisdiction over Align. App. 21 n.5.

2

Second, and relatedly, this case is a poor vehicle

for addressing Align’s Question Presented because the

factual record is underdeveloped. Considering that

Boustred was required to make only a prima facie

showing to defeat jurisdiction, and the trial court was

required to construe all facts in Respondents’ favor,

Respondents took very limited jurisdictional discovery. As a result, although there is evidence that over

$350,000 of Align products made their way into Colorado during the relevant time period, the record is undeveloped as to the nature and extent of Align’s overall contact with the U.S. and Colorado, including its

marketing and advertising efforts and the degree of

control it asserted over its distributors and their sales

efforts.

To make matters even more complicated, Align

hotly contested Boustred’s interpretation of the facts

throughout the lower court proceedings, insisting—

based on its own documentary evidence—that Align

had “no contact whatsoever” with Colorado, save the

fact that one of its defective products happened to find

its way to Colorado via the allegedly unilateral actions

of an independent distributor.

Align argues this case is an “excellent vehicle” for

deciding its Question Presented (Pet. at 25) only by

ignoring both the dearth of evidence concerning its intent to sell products in Colorado and its consistent position that the lower court erred in its treatment of the

limited facts currently known to the parties. If review

is granted, this Court will be in the untenable position

of having to decide a tricky jurisdictional issue based

on an undeveloped and uncertain factual record. That

alone makes this case a poor vehicle to decide Align’s

Question Presented.

3

Moreover, granting review would likely not clarify

the proper approach to stream-of-commerce jurisdiction. In his concurring decision in J. McIntyre Machinery, Ltd., v. Nicastro, 564 U.S. 873 (2011) (“J. McIntyre”), Justice Breyer stated that, “because the incident at issue in this case does not implicate modern

concerns, and because the factual record leaves many

open questions, this is an unsuitable vehicle for making broad pronouncements that refashion basic jurisdictional rules.” Id. at 890.

This case is an “unsuitable vehicle” for exactly the

same reasons. Not only does the factual record leave

many open questions (as explained above), but it does

not implicate those “modern concerns” identified by

Justice Breyer, as the defective product did not make

its way to Colorado via an extensive internet marketing campaign or a web-based sale. Instead, the product was delivered to a retail store in the forum state

by Align’s American distributor. Accordingly, to use

Justice Breyer’s words, this is not a proper vehicle to

“refashion basic jurisdictional rules” rules on stream

of commerce jurisdiction. Id.

Third, and finally, putting aside any issues related to the incomplete record, the decision below was

correct. The lower court grounded its reasoning in

longstanding precedent from this Court recognizing

that a nonresident defendant that places its products

into the stream of commerce with the expectation they

will be sold in a particular state is subject to jurisdiction when a consumer is injured by a defective product

purchased in that forum. In reality, it is Align whose

proposed rule would represent a dramatic break from

this Court’s precedent, allowing foreign corporations

4

to evade liability for their illegal conduct by hiding behind their U.S. distributors. That is not and should

not be the law.

COUNTERSTATEMENT OF THE CASE

A. This Lawsuit. In 2012, Boustred, a Colorado

resident, purchased a replacement main rotor holder

for his radio-controlled helicopter from a retailer in

Fort Collins, Colorado. App. 3. The main rotor holder

was manufactured by Align, a Taiwanese corporation,

and distributed by Respondent Horizon Hobby, Inc.

(“Horizon”), a Delaware-based corporation. App. 3-4.

Boustred installed the rotor holder on his helicopter and was injured in Colorado when the blades held

by the rotor holder released and struck him in the eye,

which was destroyed and ultimately removed. In

2013, he filed strict liability and negligence claims

against Align and several of Align’s U.S. and Canadian distributors, including Respondent Horizon, in

Colorado state court. App. 4. 1

B. Align’s Motion to Dismiss. Align moved to

dismiss Boustred’s claims early in the case, prior to

any discovery, on the ground that Colorado lacked

personal jurisdiction over it. Based on the factual affidavits attached to its motion (which Respondents subsequently contested), Align argued the company “has

no contacts with the State of Colorado whatsoever,

save the fact that Align products may be sold in

Colorado through indirect means—hobby shop sales

––––––––––––––––––––––––

1 The other distributors were subsequently dismissed from

the suit, as it was discovered that Horizon had the exclusive right

to distribute the allegedly defective product.

5

to the public.” 2

C. The Limited Jurisdictional Discovery. In

response to a motion from Horizon, the district court

granted the parties a 10-week extension to allow for

limited jurisdictional discovery related to Align’s motion to dismiss. Because Respondents were required

to make just a prima facie showing of personal jurisdiction, see Archangel Diamond Corp. v. Lukoil, 123

P.3d 1187, 1192 (Colo. 2005), and the court was required to construe all jurisdictional allegations in

their favor, neither Horizon nor Boustred took any

discovery from Align itself, which is located in Taiwan. Respondents instead took discovery of two nonparty U.S. distributors of Align—Assurance and Align

Aerial—in order to bolster their contention that Align

has ample contacts with the United States and Colorado. 3

D. Respondents’ Oppositions. Based on this

discovery, both Horizon and Boustred filed oppositions to Align’s motion to dismiss, in which they con-

––––––––––––––––––––––––

2 Align’s Limited Mot. to Quash Service and to Dismiss for

Lack of Personal Jurisdiction (March 9, 2015), Case No.: 2013cv

03164 (D. Ct. Larimer Cty. Colo.), at 2.

3 Respondents’ approach of conducting discovery of only

Align’s U.S. distributors is consistent with Colorado procedure.

See Archangel, 123 P.3d at 1192 (quoting Foster–Miller, Inc. v.

Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st Cir.1995)) (“The

purpose of the light prima facie burden of proof at this early stage

of litigation is simply to screen out ‘cases in which personal jurisdiction is obviously lacking, and those in which the jurisdictional challenge is patently bogus.’”).

6

tested Align’s contention that it has no direct connection with the U.S. or Colorado. 4

Among other things, Horizon presented evidence

that, from 2006 to 2013, Horizon sold over $5 million

of Align products throughout the U.S. and over $350

thousand in Colorado in particular. Id. at 15. 5

––––––––––––––––––––––––

4 See Horizon’s Resp. to Align’s Mot. to Dismiss for Lack of

Personal Jurisdiction (June 4, 2015), Case No.: 2013cv03164 (D.

Ct. Larimer Cty. Colo.) (“Horizon Resp.”), at 8. Horizon was motivated to show the court it could exercise personal jurisdiction

over Align because Horizon believed such exercise might relieve

it of any liability. See Colo. Rev. Stat. § 13-21-402(2) (“If jurisdiction cannot be obtained over a particular manufacturer of a

product ... alleged to be defective, then that manufacturer’s principal distributor ... over whom jurisdiction can be obtained shall

be deemed, for the purposes of [Colorado’s Product Liability Act],

the manufacturer of the product.”).

5 Horizon further asserted, based on facts gleaned in discov-

ery, that throughout this period:

•

Align itself actively marketed its products throughout

the U.S. See Horizon Resp. at 15.

•

Align set a minimum advertised price for all its distributors. Id.

•

Align’s representatives attended trade shows throughout

the United States called “Fun Fly” events, where Align

employees market Align products to event attendees. Id.

•

Align advertises its products on a website that is operated in the U.S. by a Michigan company. Id. at 17.

•

Align’s team of professional remote-control helicopter pilots is “present at remote control fly events throughout

the U.S. and actively market[s] Align’s products at those

events and through social media in the U.S.” Id. at 16.

•

Align sells products to consumers throughout the U.S.,

including to consumers in Colorado, through Amazon.com. Id. at 17.

7

Boustred repeated many of the facts asserted by

Horizon. He argued that these facts, coupled with the

allegations in his complaint, were sufficient to establish jurisdiction over Align at this early stage of the

case.

E. Align’s Reply. In its reply, Align asked the

court to disregard Respondents’ facts and arguments

in favor of Align’s assertion that it “has never visited

Colorado, never marketed specifically to Colorado, nor

sold a product to a customer, dealer, or distributor located in Colorado.” 6 Align further argued that the

trial court should not accept Respondents’ contrary allegations as true, because they were “merely conclusory” and there was no “actual evidence to support exercising specific jurisdiction over Align.” Id. at 4.

Align ultimately argued that because it employs a distribution network that keeps it from directly selling

products to Colorado consumers, it “cannot be said to

have taken any action which could reasonably be interpreted as availing itself of the privilege of acting

within Colorado.” Id. (emphasis added).

F. The Trial Court’s Ruling. The trial court denied Align’s motion to dismiss, concluding that Boustred had made the requisite prima facie showing of

personal jurisdiction under Colorado’s long-arm statute and the U.S. Constitution. App. 46-55.

The court began by observing that due process requires that a defendant have sufficient minimum contacts with a forum state “such that maintenance of the

suit does not offend traditional notions of fair play and

substantial justice.” App. 50 (quoting Goettman v. N.

––––––––––––––––––––––––

6 Align’s Reply in Supp. of Motion to Quash Service and to

Dismiss for Lack of Personal Jurisdiction (June 26, 2015), Case

No.: 2013cv03164 (D. Ct. Larimer Cty. Colo.), at 2.

8

Fork Valley Rest., 176 P.3d 60, 67 (Colo. 2007) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316

(1945))). Under this standard, a determination of personal jurisdiction requires, among other things, a

finding that the defendant “purposely avail[ed]” itself

of the forum state. App. 51.

Citing this Court’s plurality opinion in Asahi Metal

Industry Co. v. Superior Court, 480 U.S. 102, 112

(1987) (O’Connor, J.), the trial court observed that “a

question remains as to what constitutes purposeful

availment in the context of non-resident manufacturers.” Id. The trial court noted that, although a majority of this Court held, in World-Wide Volkswagen

Corp. v. Woodson, 444 U.S. 286, 297-98 (1980), that

jurisdiction exists over a nonresident manufacturer

that injects “products into the stream of commerce

with the expectation that they will purchased by consumers in the forum state,” this Court subsequently

held, in Asahi, that “the defendant must indicate some

intent or purpose to serve the forum state in order for

personal jurisdiction to be proper.” App. 51 (citing

Asahi, 480 U.S. at 112 (O’Connor, J., plurality op.))

(emphasis in original).

Against this backdrop, the trial court appeared to

conclude that Colorado could exert jurisdiction over

Align under either World-Wide Volkswagen’s pure

stream of commerce test or the Asahi plurality’s

stricter “stream of commerce plus” test. It noted, first,

that “Boustred’s Second Amended Complaint alleges

that Align is in the business of designing, manufacturing, distributing, and marketing remote controlled

helicopters and components throughout the U.S. and

Colorado.” App. 52. These allegations, the trial court

further observed, “are supported by documents that

9

purportedly show that Align provided marketing materials to its distributors, attended trade shows in the

U.S. where Align actively marketed its products, and

established channels through which consumers could

receive assistance with their Align products.” App. 52.

All told, the trial court held: “Boustred’s allegations and supporting documents show that Align injected a substantial number of products into the

stream of commerce knowing that these products

would reach Colorado. Additionally, Align took steps

to market its products in the U.S. and Colorado.” App.

52-53.

G. The Court of Appeals’ Decision. A division

of the Colorado Court of Appeals accepted Align’s petition for interlocutory review and affirmed. App. 2431. On appeal, Align argued that the trial court improperly ignored J. McIntyre, 564 U.S. 873, where a

plurality of this Court found, subsequent to Asahi,

that placing a product into the stream of commerce

with awareness that it will reach the forum state is

insufficient to establish jurisdiction over a non-resident defendant; instead, the defendant must have specifically “targeted the forum.” J. McIntyre, 564 U.S.

at 882 (Kennedy, J., plurality op.). Rejecting that argument, the Court of Appeals determined that, under

Marks v. United States, 430 U.S. 188, 193 (1977), Justice Kennedy’s plurality opinion in J. McIntyre was

not binding on Colorado courts and that Justice

Breyer’s narrower concurrence instead controlled.

App. 32.

Interpreting that concurrence, as well as Justice

Brennan’s concurrence in Asahi (which was the narrowest of the Asahi rulings), the Court of Appeals held

that this Court’s decision in World-Wide Volkswagen,

10

444 U.S. at 297-98, remains the prevailing law

articulating the stream of commerce doctrine. App. 36.

Applying that doctrine, the Court of Appeals agreed

with the trial court that Boustred had made a sufficient prima facie showing of specific personal jurisdiction over Align in Colorado. App. 36-37. 7

H. The Petition for Review. Align sought review by the Colorado Supreme Court, arguing in its

Petition that “[i]rrespective of whether the ‘stream-ofcommerce’ or ‘stream of commerce-plus’ test is applicable, the facts presented in this case stand on all

fours with those of McIntyre[,] where the exercise of

jurisdiction was found to be in violation of the U.S.

Constitution even by the concurrence’s … application

of World-Wide Volkswagen’s holding.” Align Petition

for Certiorari (June 4, 2016), Case No. 2016-SC-448

(Colo.), at 14. This case is akin to J. McIntyre, argued

Align, because just like J. McIntyre, where only one of

the defendant’s machines was sold via a distributor in

the forum state (and thus jurisdiction was deemed

lacking by both the plurality and the concurrence),

“only one Align rotor holder is known to have been

placed in Colorado.” Id.

In opposing review, Respondents disputed that

this case “stands on all fours” with the facts of J.

McIntyre, pointing to the “millions of dollars of sales

––––––––––––––––––––––––

7 In so ruling, the court of appeals declined to decide whether

the trial court was correct in finding that the facts of this case

satisfy both the “stream-of-commerce” and the “stream-of-commerce-plus” approaches, ruling that “[b]ecause we conclude that

the proper analysis is the stream-of-commerce test articulated in

World-Wide Volkswagen …, and not Justice O’Connor’s ‘stream

of commerce plus test’ [in Asahi], we need not address this issue.”

App. 35-36.

11

of Align products by its distributors throughout the

U.S., including Colorado ($355,107.57 of sales of Align

products in Colorado by Horizon alone and with

Align’s knowledge),” as well as evidence that Align

“facilitat[es] sales of [its] products in Colorado.” 8

I. The Colorado Supreme Court’s Decision.

The Colorado Supreme Court granted review and

affirmed. The court held, first, that the Court of Appeals was correct in finding that World-Wide

Volkswagen supplies the governing approach to

stream-of-commerce jurisdiction. App. 16-17.

The court then affirmed the trial court’s factual

finding that Boustred made a sufficient prima facie

showing to withstand Align’s motion to dismiss. App.

18. In so doing, the Colorado Supreme Court placed

particular emphasis on Respondents’ allegations that

“Align placed no limitations on where Horizon could

distribute [its products] [a]nd specifically, over

$350,000 worth of Align products were sold in Colorado.” App. 20. “Given this,” the court concluded,

“Align should have reasonably anticipated being

haled into court in Colorado.” App. 21 (citing WorldWide Volkswagen¸444 U.S. at 297). 9

––––––––––––––––––––––––

8 Horizon’s Opp. to Petition for Certiorari (July 1, 2016), Case

No. 2016-SC-448 (Colo.), at 12. See also Boustred Opp. to Petition

for Certiorari (June 14, 2016), Case No. 2016-SC-448 (Colo.), at

4 (noting that “[t]he sale of Align products in the U.S. is both

consistent and voluminous.”).

9 Although the Colorado Supreme Court ruled that Respondents had alleged sufficient facts to support jurisdiction under the

stream-of-commerce test set forth in World-Wide Volkswagen, it

did not decide whether the facts as alleged would satisfy the

“stream of commerce plus” tests articulated in this Court’s more

recent, plurality decisions of Asahi and J. McIntyre.

12

The lower court was careful to note, however, that

“this showing only allows Boustred to survive Align’s

motion to dismiss.” App. 21 n.5. At a later stage of the

case, “the plaintiff must establish jurisdiction by a

preponderance of the evidence if the defendant raises

the challenge again prior to the close trial.” Id. (quoting Goettman, 176 P.3d at 66, n.3). Thus, “as the case

proceeds, Boustred may have to meet a higher burden

to definitely establish that Colorado may exercise jurisdiction over Align.” App. 21.

REASONS FOR DENYING REVIEW

I. This Court Lacks Jurisdiction Over This

Case.

This Court lacks jurisdiction to grant the writ because the state court decision is not a final judgment

or decree as required by 28 U.S.C. § 1257, and none of

the exceptions to the finality requirement applies.

A. This Court’s Jurisdiction is Limited to Review of Final State Court Decisions.

The finality requirement of 28 U.S.C. § 1257 limits

this Court’s review to final state court judgments. See

Jefferson v. City of Tarrant, Alabama, 522 U.S. 75, 81

(1997) (“To be reviewable by this Court, a state-court

judgment must be final in two senses: it must be subject to no further review or correction in any other

state tribunal; it must also be final as an effective determination of the litigation and not of merely interlocutory or intermediate steps therein.”) (internal

quotes and citation omitted). Finality serves to

“avoid[] piecemeal review of state court decisions,” to

“avoid[] giving advisory opinions in cases,” and to

“limit[] review of state court determinations of federal

constitutional issues to leave at a minimum federal

intrusion in state affairs.” North Dakota State Bd. of

13

Pharmacy v. Snyder’s Drug Stores, Inc., 414 U.S. 156,

159 (1973).

The finality requirement is especially critical

“when the jurisdiction of this Court is invoked to upset

the decision of a State court.” Radio Station WOW,

Inc. v. Johnson, 326 U.S. 120, 124 (1945). In such

cases, the Court is “in the realm of potential conflict

between the courts of two different governments.” Id.

B. The State Court Has Not Issued a Final

Judgment or Decree.

The Colorado state court’s decision is not final in

at least two respects. First, the decision is not “an effective determination of the litigation,” but rather decides “merely interlocutory or intermediate steps

therein.” Jefferson, 522 U.S. at 81. A ruling that a

court may assert personal jurisdiction is plainly interlocutory, as it merely allows the merits of the case to

proceed. See 15A Charles Alan Wright et al., Fed.

Prac. & Proc. Juris. § 3914.6 (2d ed. WL).

Second, the decision below does not finally resolve

even whether Colorado will assert personal jurisdiction over Petitioner because it is subject to “further

review or correction[.]” Jefferson, 522 U.S. at 81. In

affirming the trial court’s decision, the Colorado Supreme Court emphasized that Align could raise its jurisdictional defense at any time prior to the end of

trial, recognizing that, after further discovery of pertinent jurisdictional facts, the trial court may still reject personal jurisdiction over Align. App. 21 n.5.

14

C. This Case Does Not Fit the Categories in

Cox Broadcasting Corp. where this Court

Deemed a State Decision Final on a Federal Issue.

In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

(1975), this Court summarized four categories of cases

where a state court decision subject to further state

court proceedings is considered a final judgment on a

federal issue for jurisdictional purposes under 28

U.S.C. § 1257. Despite their obligation to address this

issue, Petitioner never explains how this case meets

one of these categories. 10 While it is prejudicial for

Boustred to have to address this issue before knowing

what Align will claim, it is clear that none of the Cox

exceptions applies.

1. The first Cox category concerns cases where

“further proceedings—even entire trials—[are] yet to

occur in the state courts but where … the federal issue

is conclusive or the outcome of further proceedings

preordained,” such that “the case is for all practical

purposes concluded.” Cox, 420 U.S. at 479 (emphasis

added). “In these circumstances,” the Cox Court

wrote, “because the case is for all practical purposes

concluded, the judgment of the state court on the federal issue is deemed final.” Id.

This case is nowhere near to being “for all practical purposes concluded” and the decision below does

render[ ] the outcome of the case “preordained.” Id.

––––––––––––––––––––––––

10 See Stephen M. Shapiro et al., Supreme Court Practice, 156

(10th ed. 2013) (“Supreme Court Practice”) (the petitioner is

“obliged by [Rule 14.1(g)(i)] to discuss such a finality problem in

the certiorari petition”).

15

Align not only remains free to challenge personal jurisdiction at any time before the end of trial (App. 21

n.5), it will also have the opportunity to litigate other

defenses and the underlying merits.

2. The second Cox category is where federal issues

are “finally decided by the highest court in the State”

but the issue “will survive and require decision regardless of the outcome of future state-court proceedings.” Cox, 420 U.S. at 480. This category applies

where further proceedings will not “foreclose or make

unnecessary decision on the federal question,” id., and

the federal issue is “separable and distinct from the

subsequent proceedings, so much so that the federal

issue will be unaffected and undiluted by the later

proceedings.” Supreme Court Practice at 165.

The opposite is true here. Align might prevail on

the merits or win in some other way that obviates any

need for this Court’s review. Indeed, after full jurisdictional discovery, Align might even prevail as to personal jurisdiction on a fuller record, obviating a need

to review the current decision on the sufficiency of the

allegations.

3. The third Cox category concerns cases “where

the federal claim has been finally decided, with further proceedings on the merits in the state courts to

come, but in which later review of the federal issue

cannot be had, whatever the ultimate outcome of the

case.” Cox, 420 U.S. at 481. That is obviously not this

case; under the lower court’s ruling, Petitioner can

raise the issue later in the case. App. 21 n.5. And if

Align ultimately prevails on jurisdiction in state

court, one or both Respondents can seek review.

4. The fourth Cox category concerns cases where

the state court has “finally decided” a federal issue,

16

where “reversal of the state court on the federal issue

would be preclusive of any further litigation on the

relevant cause of action,” and where “refusal immediately to review the state court decision might seriously erode federal policy[.]” Id. at 482-83. This category has no application for three reasons.

First, as shown above, the state courts have not “finally decided” the federal issue of whether personal

jurisdiction is appropriate.

Second, this Court’s review and reversal would not

necessarily be “preclusive of any further litigation.”

Id. For example, even if the Court reversed and articulated a standard for minimum contacts different

than the state court, Colorado law would allow Boustred to seek leave to amend its complaint to allege

facts consistent with that ruling. See Colo. R. Civ. P.

15(a) (leave to amend pleadings “shall be freely given

when justice so requires”). And Boustred would have

the right to take discovery of Align at that point to

support these allegations. Review at this stage would

merely result in an advisory ruling governing the almost inevitable further proceedings without actually

resolving the case.

Third, refusal to review the state court decision immediately would not seriously (or even partially)

erode federal policy. No federal policy requires rulings

on personal jurisdiction without full jurisdictional discovery. Treating this pleading-stage ruling as final

under Cox would “permit the fourth exception to swallow the rule.” Johnson v. California, 541 U.S. 428, 430

(2004) (internal quotation marks omitted).

* * *

17

This Court’s prior cases involving state court rulings on personal jurisdiction are distinguishable because there was no further state court review possible.

In J. McIntyre, for example, the trial court initially

dismissed for lack of personal jurisdiction and a New

Jersey intermediate appellate court reversed and remanded to allow discovery as to jurisdictional facts.

See Nicastro v. McIntyre Mach. America, Ltd., 987

A.2d 575, 578 (N.J. 2010). The defendant did not seek

certiorari after the first decision. Instead, it engaged

in discovery and renewed its challenge in the trial

court. Id. at 579. It was only after the New Jersey

Supreme Court reviewed that second decision—a decision that finally asserted personal jurisdiction based

on a developed record—that the defendant sought certiorari and this Court granted review. J. McIntyre,

564 U.S. 873. 11

––––––––––––––––––––––––

11 Align may invoke Calder v. Jones, 465 U.S. 783 (1984), but

that case is distinguishable. In Calder, the Court found jurisdiction to review a final state court ruling on personal jurisdiction

and noted that it had exercised jurisdiction to address personal

jurisdiction rulings in a handful of prior cases. Id. at 788 n.8.

The Court emphasized, however, that it was reviewing a state

decision on personal jurisdiction that was “plainly final” and “not

subject to further review in the state courts.” Id. (emphasis

added). Moreover, each example in Calder involves a state court

decision on personal jurisdiction not subject to further state court

review. See Shaffer v. Heitner, 433 U.S. 186, 195 n.12 (1977) (defendants whose property was seized were left with choice of “suffering a default judgment or entering a general appearance and

defending on the merits” if the state decision was not considered

final); Rush v. Savchuk, 444 U.S. 320, 325 (1980) (final state

court decision about assertion of quasi in rem jurisdiction);

World-Wide Volkswagen, 444 U.S. at 289 (final state court decision denying writ of prohibition to restrain lower court from exercising in personam jurisdiction); Kulko v. Superior Court of

18

Boustred is aware of no case where this Court exercised jurisdiction to review a state court ruling that

addresses the sufficiency of allegations of personal jurisdiction, but where the defendants had the right to

renew a challenge to personal jurisdiction after full jurisdictional discovery.

In short, given the Colorado Supreme Court’s definite statement that it has made no final ruling to assert personal jurisdiction, App. 21 n.5, the state court

decision is not final and this Court lacks jurisdiction.

II. This Case is a Poor Vehicle for Review.

Finality aside, this case is a poor vehicle for review

because it is akin to J. McIntyre in two pivotal respects. In his concurring decision in J. McIntyre, Justice Breyer stated that, “because the incident at issue

in this case does not implicate modern concerns, and

because the factual record leaves many open questions, this is an unsuitable vehicle for making broad

pronouncements that refashion basic jurisdictional

rules.” 564 U.S. at 890 (emphases added). 12

––––––––––––––––––––––––

California, 436 U.S. 84, 89 (1978) (review of a state court final

decision sustaining jurisdiction).

12 Justice Breyer highlighted his concern in applying the plu-

rality’s analysis to a number of web-related situations. See id.

He questioned the personal jurisdiction standard for a company

who markets its products through pop-up advertisements visible

in the forum. See id. Justice Breyer’s concern regarding websites and personal jurisdiction is shared by legal analysts who

argue that the case law is conflicting. See Howard B. Stravitz,

Personal Jurisdiction in Cyberspace: Something More Is Required on the Electronic Stream of Commerce, 49 S.C. L. Rev. 925,

939 (1998) (observing internet case law appears “irreconcilable”).

19

Both of these factors are present here. First, just

as in J. McIntyre, this case does not revolve around

internet sales or mass marketing via email. Instead,

Align shipped its products to Horizon in Illinois, which

in turn shipped them to retailers in Colorado. Thus,

this case does not involve the kind of “modern concerns” that were absent in J. McIntyre. 13

Moreover, this case presents many more “open

questions” than J. McIntyre when it comes to the factual record. As explained above, J. McIntyre reviewed

a final decision that was based on full discovery in the

state courts. But here, not only was the challenged

decision interlocutory and based on minimal discovery, but a host of facts this Court would likely deem

highly relevant remain unknown. Due to the early

posture of this litigation there are, for example, no

findings as to:

* the amount of control Align exerted over its U.S.

distributors and their sales efforts in Colorado;

* what business, if any, Align conducted with Colorado via its website or through Amazon.com; and

* whether any of Align’s advertising and marketing

efforts were specifically directed at Colorado. 14

––––––––––––––––––––––––

13 Although it appears that Align engages in some web-based

advertising and sales, the extent and nature of that activity has

not yet been fleshed out, and Boustred contends that he purchased the allegedly defective main rotor holder at a brick and

mortar hobby store in Fort Collins, Colorado.

14 Other as-yet unknown facts include:

* the total annual revenue derived from the sale of all Align replacement rotor holders in Colorado (by each distributor and collectively);

20

The lower court was not troubled by the absence of

evidence on these points because it was satisfied that

Respondents had raised a reasonable inference of specific jurisdiction over Align under the stream-of-commerce test of World-Wide Volkswagen. App. 19-21. 15

But this Court might disagree, either as to the appropriate test or as to the lower court’s application of the

facts to the law (or both), in which case the Court

might find itself frustrated by the same problems that

troubled the J. McIntyre Court. 16

––––––––––––––––––––––––

* whether Align had notice of specific sales of replacement rotor

holders or other recreational helicopter products in Colorado;

* whether Align ever places geographic restrictions on its distributors’ authority to sell replacement rotor holders or other recreational helicopter products in any of the 50 United States;

* why Align maintains an English language website that diverts

American users to the websites of its four U.S. distributors; and

* whether and to what extent Align retains any responsibility in

its distributor relationships for interfacing with American customers or handling returns or complaints.

15 “A prima facie showing exists where the plaintiff raises a

reasonable inference that the court has jurisdiction over the defendant.” Goettman, 176 P.3d at 66.

16 In World-Wide Volkswagen, 444 U.S. at 28, in contrast,

“Respondent’s counsel actually conceded at oral argument …

[that] there was no showing that any automobile sold by WorldWide or Seaway has ever entered Oklahoma with the single exception of the vehicle involved in the present case.” Likewise, in

Asahi, the Court knew exactly how many of Asahi tire valve assemblies were sold to the Taiwanese tire manufacturer who

sought indemnification from Asahi; exactly how many of these

valve assemblies were eventually sold in the forum state; and

even how many of the valve stems of the tire tubes sold in one

cycle store in Solano Country were manufactured by Asahi. See

Asahi, 480 U.S. at 106-07. And in another stream of commerce

21

Align cannot reasonably dispute this point, because it repeatedly contended below that this case is

“on all fours” with J. McIntyre. Thus, Align argued

that, just as in McIntyre, there is only evidence of a

“single isolated sale” of one of Align’s products in the

state. See J. McIntyre, 564 U.S. at 886-87 (Kennedy,

J., plurality op.); id. at 888 (Breyer, J., concurring).

Respondents vehemently dispute Align’s characterization of the record on this point and assert, as they

did below, that from 2006 to 2011, Align manufactured and Horizon purchased and distributed 11,216

packages of component parts for the subject helicopter, all of which contained motor rotor holders. Boustred furthermore disagrees that the prima facie burden requires knowledge of the number of rotor holders

sold in Colorado given the amount of revenue derived

from the state. But to the extent this Court were to

agree with Align, either on the facts or the law (or,

again, both), this case would be even more likely than

J. McIntyre to produce a splintered result.

To avoid this outcome and provide the maximum

amount of guidance to the lower courts, it would be far

better to select a case where this Court could issue a

definitive ruling on both the facts and the law.

––––––––––––––––––––––––

case decided the same year as J. McIntyre, although the jurisdictional issue was resolved on a motion to dismiss, the state court

made extensive factual findings after what appears to have been

full jurisdictional discovery. See Brown v. Meter, 681 S.E.2d 382,

385–87 (N.C. App. 2009), rev’d sub nom., Goodyear Dunlop Tires

Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011).

22

III.

There is No Urgent Need to Decide Align’s

Question Presented.

The only circumstance under which it might make

sense to grant review of such a flawed vehicle would

be if the lower courts were in urgent need of guidance

as to the proper approach to stream-of-commerce jurisdiction. Align suggests as much in its Petition, saying the lower courts are “crying out for this Court to

clarify the matter.” Pet. at 17. But in truth, they are

managing just fine.

Since J. McIntyre was decided in 2011, the majority of state high courts and federal courts of appeal to

decide the issue—including the Colorado Supreme

Court in this case—have agreed that the World-Wide

Volkswagen approach to stream-of-commerce jurisdiction is the appropriate standard. See Ainsworth v.

Moffett, 116 F.3d 174, 177 (5th Cir.), cert. denied, 134

S. Ct. 644 (2013); State v. Atl. Richfield Co., 142 A.3d

215, 223 (Vt. 2016); State ex rel Ford Motor Co. v.

McGraw, 788 S.E.2d 319, 342 (W. Va. 2016); Book v.

DoubleStar Dongfeng Tyre Co., 860 N.W.2d 576, 585

(Iowa 2015); Ex parte Edgetech I.G., Inc., 159 So.3d

629, 642 (Ala. 2014); Russell v. SNFA, 987 N.E.2d 778,

794 (Ill.), cert. denied, 134 S. Ct. 295 (2013). 17

A number of other courts have deemed it unnecessary to decide which stream of commerce test prevails,

either because: (1) jurisdiction would exist even under

the most stringent interpretation of this Court’s rulings, see Polar Electro Oy v. Suunto Oy, 829 F.3d 1343,

1350 (Fed. Cir. 2016); In re Chinese Drywall Prod.

––––––––––––––––––––––––

Cf. Willemsen v. Invacare Corp., 282 P.3d 867, 873-75 (Ore.

2012), cert. denied, 564 U.S. 1143 (2013) (holding that Justice

Breyer’s J. McIntyre concurrence controlled and finding jurisdiction based on fact-specific analysis).

17

23

Liab. Litig., 753 F.3d 521, 541 (11th Cir. 2014); or (2)

because jurisdiction would not exist under even the

most liberal version of the stream of commerce test.

See Williams v. Romarm, SA, 756 F.3d 777, 784 (D.C.

Cir. 2014); Noll v. American Biltrite, 395 P.3d 1021,

1028 (Wash. 2017); State v. NV Sumatra Tobacco

Trading Co., 403 S.W.3d 726, 764 (Tenn. 2013).

Notably, to our knowledge, only two post-J. McIntyre state high or federal appellate courts have disagreed as to the prevailing legal standard, but even

there the outcome did not hinge on that determination. In Rilley v. Money Mutual, 884 N.W.2d 321, 324

(Minn. 2016), cert. denied, 137 S. Ct. 1331 (2017), the

Minnesota Supreme Court looked to the Kennedy plurality in J. McIntyre as supplying the governing legal

standard, but went on to hold that the plaintiffs met

that standard based on the fact that defendant “sent

over 1,000 emails to known Minnesotans, soliciting

them to apply for payday loans.” Id. at 338. And in

State v. LG Electronics, 375 P.2d 1035 (Wash. 2016),

cert. denied, 137 S. Ct. 648 (2017), the Court viewed

Justice Breyer’s J. McIntyre concurrence as creating

its own unique “something-more” standard between

the Asahi plurality and concurrence, but seemed to

hold that the defendant’s activities would have satisfied even the most stringent standard. See id. at 18182 (noting that defendant “sold [its product] into international streams of commerce with the intent that

… large quantities would be sold in Washington.”).

In short, Align’s dramatic portrait of a host of

lower courts floundering under the uncertainty created by Asahi and J. McIntyre and in desperate need

of guidance does not square with reality. This Court

should wait until a better vehicle presents itself to decide, once and for all, the proper approach to stream

24

of commerce jurisdiction. Considering the number of

personal jurisdiction cases for which this Court has

received petitions for certiorari just since J. McIntyre

was decided, it certainly seems the Court has myriad

other (and presumably better) choices on this issue. 18

IV.

The Lower Court’s Decision Was Correct.

Finally, review should be denied because the lower

court’s decision was correct and faithful to this Court’s

precedents.

First, there is nothing radical or exotic about the

lower court’s holding that, under Marks v. United

States, 430 U.S. 188 (1977), World-Wide Volkswagen

“continues to bind this court in determining” personal

jurisdiction over a non-resident defendant. App. 1617. As stated above, many of the federal courts of appeals and state high courts to decide this issue since

J. McIntyre have found that World-Wide Volkswagen

is the governing standard. 19

Second, the lower court was careful and restrained

in its approach to World-Wide Volkswagen—and in its

––––––––––––––––––––––––

18 See, e.g., State v. LG Electronics, 375 P.2d 1035 (Wash.

2016), cert. denied, 137 S. Ct. 648 (2017); Rilley v. Money Mutual,

884 N.W.2d 321 (Minn. 2016), cert. denied, 137 S. Ct. 1331

(2017); Russell v. SNFA, 987 N.E.2d 778 (Ill.), cert. denied, 134 S.

Ct. 295 (2013); Ainsworth v. Moffett, 116 F.3d 174 (5th Cir.), cert.

denied, 134 S. Ct. 644 (2013).

Align is wrong in arguing that “the Colorado Supreme

Court reviewed the fractured opinions in Asahi and [J. McIntyre]

declined to follow any of them.” Pet. at 6. In truth, the court

properly followed the narrowest opinion from J. McIntyre—Justice Breyer’s concurrence—which expressly declined to “refashion basic jurisdictional rules.” 546 U.S. at 890. This led the lower

court to the narrowest of the Asahi opinions—Justice Brennan’s

concurrence—which, in turn, followed the stream-of-commerce

test of World-Wide Volkswagen. See 480 U.S. at 117-21.

19

25

application of the facts to the law. The Colorado Supreme Court recognized that “the mere possibility

that a product might end up in a given state cannot

constitute the purposeful availment necessary to support personal jurisdiction …” App. 10. Instead, for a

plaintiff to establish jurisdiction over a non-resident

defendant, it must show that “the presence of the allegedly defective [product in the forum] did not result

from ‘random, fortuitous, or attenuated’ contacts with

[the state] and instead was placed into the stream of

commerce with the expectation that the products will

be purchased [there].” App. 20 (quoting World-Wide

Volkswagen, 444 U.S. at 297-98) (emphasis in original). Then, based on this test, the court found that

plaintiff made an adequate prima facie showing of jurisdiction, placing particular emphasis on the fact

that “over $350,000 worth of Align products were sold

in Colorado.” App. 21.

Here too, there was nothing controversial or

ground-breaking about this conclusion. To the contrary, it would offend even the stingiest notions of substantial justice to find, as Align argued below, that its

contacts with four U.S. distributors (authorizing the

unlimited sale of products in all 50 states) and the derivation of $350,000 in Colorado-specific sales is not

enough to raise a reasonable inference that Align intended to avail itself of the benefits of doing business

in the forum state. 20

––––––––––––––––––––––––

20 Align badly mischaracterized the lower court’s holding

when it argued that the Court found personal jurisdiction based

solely on the fact that “Align’s plac[ed] its goods into the stream

of commerce and allow[ed] them to be sold in Colorado.” Pet. at

7. See also id. (arguing that, “[a]s in [J. McIntyre] itself, the state

court did not rely on anything other than limited sales, through

26

Align’s insistence that the lower court erred by

“adopting an expansive version of the stream-of-commerce theory of jurisdiction that goes beyond the opinions joined by at least six justices in [J. McIntyre] is

also patently incorrect. Pet. at 18. In making this

claim, Align repeatedly argued below that this case is

“on all fours with” J. McIntyre because “only one Align

rotor is known to have been placed in Colorado.” 21

Thus, in Align’s view, even Justice Kennedy and the

other members of the J. McIntrye plurality would

have rejected jurisdiction over Align.

This argument, once again, mischaracterizes the

record. Because Boustred was required to make only

a prima facie showing of jurisdiction, neither he nor

Horizon has yet taken discovery of Align. Based on

this barely developed record, Respondents know that

Horizon sold over $350,000 worth of Align’s products

in Colorado, but they do not yet know the exact com––––––––––––––––––––––––

a nationwide distributor, of the defendant’s products and component parts in the forum.”). In reality, in addition to noting Align’s

sizable sales in Colorado, App. 19, the Colorado Supreme Court’s

conclusion that the exercise of specific jurisdiction over Align is

reasonable was bolstered by: Align’s U.S.-based marketing and

advertising; Align’s attendance at trade shows in the U.S.; and

the fact that Align “established channels through which consumers could receive assistance with their products.” App. 20. The

lower court was careful to note, moreover, that “this showing only

allows Boustred to survive a motion to dismiss,” and made clear

that Align could renew its challenge at a later date, in which

event Boustred “may have to meet a higher burden to definitively

establish that Colorado may exercise jurisdiction over Align.”

App. 21 n.5.

21 Align Petition for Certiorari (June 4, 2016), Case No 2016-

SC-448 (Colo.), at 14.

27

position of those sales. It may well be that a substantial portion (or all) of those sales were made up of the

specific product that injured Boustred, but the exact

figure remains unknown. Align’s argument, based on

this incomplete record, that “only one Align rotor is

known to have been placed” in Colorado, is misleading, at best. 22

Align further distorts the record (and mischaracterizes the lower court’s ruling) in arguing that the

lower court “created a system of national jurisdiction”

by finding jurisdiction over Align based on its contacts

with the United States, rather than with Colorado. As

explained above, the lower court looked to a number

of factors, including Align’s $350,000-plus sales “in

Colorado.” App. 19 (emphasis added). See also id. at

20-21. While the lower court did consider Align’s national contacts, it did so only to support its initial conclusion that the regular course and flow of Align’s

products into the U.S. predictably carried those products to Colorado, where they injured Boustred. That

analysis

was

appropriate.

See

World-Wide

Volkswagen, 444 U.S. at 287 (if a manufacturer or distributor endeavors to develop a market for a product

in several states, it is reasonable “to subject it to suit

in any one of those States if its allegedly defective

[product] has been the source of injury.”).

Third, and finally, the lower court was correct in

rejecting Align’s argument that “selling its products

through a distributor somehow turns the distribution

––––––––––––––––––––––––

It is interesting to note, moreover, that although Align

pressed this “single-sale” argument in the proceedings below, it

did not raise it again in its Petition to this Court. This is undoubtedly because, as Align must recognize, if this case truly is

on fours with J. McIntyre, it makes a poor vehicle for review.

22

28

and sale of its products into the unilateral activity of

a third party that cannot properly be considered in the

minimum contacts analysis.” App. 21. As the lower

court stated, “[a]dopting such a position would render

foreign manufacturers immune from suit in the

United States so long as they sell their products in the

United States through separately incorporated U.S.

based distributors.” Id. That cannot be the proper

approach: it elevates form over substance in the worst

sort of way, encourages corporate gamesmanship, and

puts domestic companies (who are subject to jurisdiction at least in their home state, see Daimler AG v.

Bauman, 571 U.S. 117, 137 (2014)), at a serious disadvantage vis-à-vis their foreign competitors.

* * *

Stripped to its basics, Align’s premise is that foreign manufacturers who do business everywhere in

America can be held liable nowhere in America. Not

only would this approach require this Court to discard

the fact-based minimum contacts analysis embraced

in every one of this Court’s decisions since International Shoe, 326 U.S. at 310, it would obligate a court

to ignore the breadth of Align’s U.S. sales campaign

and attribute no weight to the fact that Align is a

large, sophisticated manufacturer, as opposed to a

small, independent business.

Notably, all of the Justices in J. McIntyre cautioned against overlooking just these types of facts in

favor of bright-line jurisdictional rules:

The conclusion that the authority to subject a

defendant to judgment depends on purposeful

availment, consistent with Justice O’Connor’s

opinion in Asahi, does not by itself resolve

many difficult questions of jurisdiction that

29

will arise in particular cases. The defendant’s

conduct and the economic realities of the market the defendant seeks to serve will differ

across cases, and judicial exposition will, in

common-law fashion, clarify the contours of

that principle.

J. McIntyre, 564 U.S. at 885 (Kennedy, J., plurality

op.). See also id. at 892 (Breyer, J., concurring)

(“[w]hat might appear fair in the case of a large manufacturer which specifically seeks … an equal-sized

distributor to sell its product in a distant State might

seem unfair in the case of a small manufacturer…who

sells his product … exclusively to a large distributor,

who resells a single item … to a buyer from a distant

State.”); id. at 910 (Ginsburg, J., dissenting) (“[a]s to

the parties, courts [examining personal jurisdiction]

would differently apprise two situations: (1) cases involving a substantially local plaintiff, like Nicastro,

injured by the activity of a defendant engaged in interstate or international trade; and (2) cases in which

the defendant is a natural or legal person whose economic activities and legal involvements are largely

home-based, i.e., entities without designs to gain substantial revenue from sales in distant markets.”) (internal quotes and citations omitted).

The present case most certainly involves the former of these two situations, and courts across the

country have properly considered a non-resident manufacturer defendant’s national contacts in order to

fairly characterize the nature and scope of that defendant’s American sales campaign to ensure the appropriate application of the minimum contacts analysis. See id. at 910-14 (Appendix to dissenting opinion

30

of Ginsburg, J.) (discussing 12 cases upholding jurisdiction over foreign or out-of-state corporation that,

through a distributor, targeted national market).

It would be antithetical to this case law to now conclude that a foreign manufacturer who engaged the

use of multiple U.S. distributors to sell its products in

every state is not amenable to suit in any state simply

because its marketing was part and parcel of a national effort, rather than specifically tailored to each

state individually. Here, it is relevant that Colorado

was but one of the 50 United States generally targeted

by Align, and the lower court committed no error in

considering this fact.

CONCLUSION

The petition for review should be denied.

Respectfully submitted,

Leslie A. Brueckner

(Counsel of Record)

Public Justice, P.C.

475 14th Street, Suite 610

Oakland CA 94612

(510) 622-8205

lbrueckner@publicjustice.net

May 1, 2018

Michael O’B Keating

Deirdre E. Ostrowski

Melissa A. Hailey

1290 Broadway, Suite 600

Denver CO 80203

(303) 534-0401