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,

Petitioner,

v.

ALLISTER MARK BOUSTRED, et al.,

Respondents.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The Supreme Court Of Colorado

-----------------------------------------------------------------BRIEF IN OPPOSITION OF

RESPONDENT HORIZON HOBBY, INC.

-----------------------------------------------------------------CONOR P. BOYLE

Counsel of Record

KENNETH H. LYMAN

RYAN L. WINTER

HALL & EVANS, LLC

1001 17th Street, Suite 300

Denver, Colorado 80202

(303) 628-3300

boylec@hallevans.com

lymank@hallevans.com

winterr@hallevans.com

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

1. Does this Court have jurisdiction under 28

U.S.C. § 1257 to review an interlocutory state court ruling on a motion to dismiss related to personal jurisdiction, which was remanded for further proceedings and

expressly allows the Petitioner to renew its challenge

to personal jurisdiction when the burden is greater on

the plaintiff ?

2. Whether Petitioner has presented a compelling reason to grant the Petition where the trial court

determined on a motion to dismiss that the plaintiff

made a prima facie showing that the manufacturer

injected a substantial number of products into the

stream-of-commerce knowing that those products would

reach the forum state and the manufacturer took steps

to market its products in the U.S. and the forum state.

ii

CORPORATE DISCLOSURE STATEMENT

Horizon Hobby, Inc., now known as Horizon Hobby,

LLC’s (“Horizon”) parent corporation is HHI Group,

LLC. No publicly held company owns a 10% or more

interest in Horizon.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..................................

i

CORPORATE DISCLOSURE STATEMENT ........

ii

TABLE OF CONTENTS ........................................

iii

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

v

INTRODUCTION ...................................................

1

STATEMENT OF THE CASE ................................

3

I. Background ..................................................

3

II. Procedural History.......................................

4

REASONS THE COURT SHOULD DENY THE

PETITION ...........................................................

8

I. This Court Lacks Jurisdiction Because the

State Court’s Decision is Not Final .............

8

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

9

B. The Colorado Supreme Court has not

Issued a Final Judgment or Decree ...... 11

C. The Case does not Fit the Exceptions

to the Finality Rule Identified in Cox

Broadcasting Corp. ................................ 12

D. The Remaining Cases Cited by Petitioner in its Statement of Jurisdiction

are Distinguishable ............................... 17

iv

TABLE OF CONTENTS – Continued

Page

II. The Procedural Posture of the State Court

Action and the Incomplete Record Make

This Case a Poor Candidate for Determining Widespread Issues of Personal Jurisdiction................................................................ 20

III.

This Case is a Poor Vehicle Because the Allegations and Facts Presented to the Trial

Court Supported a Prima Facie Showing of

Jurisdiction Under the More Stringent Streamof-Commerce Plus Test from Asahi ............. 24

IV. The Colorado Supreme Court’s Decision

Does Not Conflict with the Decisions of this

Court............................................................. 31

V.

Petitioner Advocates for a Rule that Would

Insulate All Non-Resident Manufacturers

from Liability in the U.S. ............................. 33

CONCLUSION .......................................................

34

v

TABLE OF AUTHORITIES

Page

CASES

Ariz. v. Maricopa County Med. Soc., 457 U.S. 332

(1982) .......................................................................23

Asahi Metal Indus. Co. v. Superior Court, 480

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

BNSF Ry. v. Tyrrell, 137 S. Ct. 1549 (2017) ......... 17, 18

Brown v. Meter, 681 S.E.2d 382 (N.C. App. 2009) ......... 18

Burger King Corp. v. Rudzewicz, 471 U.S. 462

(1985) .......................................................................34

California v. Stewart, 384 U.S. 436 (1966) .................14

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

(1975) ............................................... 12, 13, 14, 15, 17

Goodyear Dunlop Tires Operations, S.A. v. Brown,

564 U.S. 915 (2011) .................................................17

Hanson v. Denckla, 357 U.S. 235 (1958) .....................25

In re Chinese Drywall Prod. Liab. Litig., 753

30F.3d 521 (11th Cir. 2014) .....................................30

J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S.

873 (2011) ........................................................ passim

Jefferson v. City of Tarrant, Ala., 522 U.S. 75

(1997) ................................................................... 9, 11

Local 438 Constr. & Gen. Laborers’ Union v.

Curry, 371 U.S. 542 (1963) ......................................17

Market Street R. Co. v. R.R. Comm’n of Cal., 324

U.S. 548 (1945) ........................................................10

Marks v. U.S., 430 U.S. 188 (1977)................................5

vi

TABLE OF AUTHORITIES – Continued

Page

Mills v. Alabama, 384 U.S. 214 (1966) .......................13

Minnick v. Cal. Dep’t of Corr., 452 U.S. 105 (1981) ......... 23

N.D. State Bd. of Pharm. v. Snyder’s Drug Stores,

Inc., 414 U.S. 156 (1973)..........................................10

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

A.2d 575 (N.J. 2010) ................................................19

Nike, Inc. v. Kasky, 539 U.S. 654 (2003) .....................16

Polar Electro Oy v. Suunto Oy, 829 F.3d 1343

(Fed. Cir. 2016) ........................................................30

Radio Station WOW, Inc. v. Johnson, 326 U.S.

120 (1945) ................................................................10

Russell v. SNFA, 987 N.E.2d 778 (Ill. 2013), cert.

denied, 134 S. Ct. 295 (2013) ..................................30

Southland Corp. v. Keating, 465 U.S. 1 (1984) ...........17

Tyrrell v. BNSF Ry. Co., 373 P.3d 1 (Mont. 2016) ......... 18

Walden v. Fiore, 134 S. Ct. 1115 (2014)................ 31, 32

World-Wide Volkswagen Corp. v. Woodson, 444

U.S. 286 (1980) .................................................... 6, 32

STATUTES

28 U.S.C. § 1257 .................................................... 1, 8, 9

28 U.S.C. § 344(a) ........................................................10

vii

TABLE OF AUTHORITIES – Continued

Page

RULES

C.A.R. 4.2 ......................................................................5

Colo. R. Civ. P. 12(b)(2) .............................................. 2, 4

Colo. R. Civ. P. 12(b)(5) .......................................... 13, 20

OTHER AUTHORITY

4 Charles Alan Wright et al., Fed. Prac. & Proc.

Civ. § 1067.4 (4th ed. 2015) .....................................23

1

INTRODUCTION

Petitioner Align Corporation Limited (“Petitioner”)

is a Taiwanese corporation that sells radio control

hobby products throughout the world through a series

of worldwide distributors. During all relevant times

Petitioner sold products throughout the U.S., including

the State of Colorado, through four U.S.-based distributors, one of which was Respondent Horizon Hobby

(“Horizon”). Now Petitioner asks this Court to grant

certiorari to give it what would amount to immunity

from suit in every jurisdiction in the U.S. The Court

should deny certiorari for four reasons: (1) the state

court decision below is not final, leaving this Court

without jurisdiction; (2) the procedural posture of the

state court action and the incomplete record make this

case a poor candidate for determining widespread issues of personal jurisdiction; (3) the case is a poor candidate because the allegations and documentation

submitted to the trial court supported a prima facie

showing of jurisdiction, even under the more stringent

stream-of-commerce plus test; and (4) the Colorado Supreme Court’s decision does not conflict with the decisions of this Court.

The first flaw in the Petition is a fatal jurisdictional defect. Congress limits this Court’s jurisdiction

over state court decisions to those that are final. 28

U.S.C. § 1257. The decision here is not final in two respects: (1) it is an interlocutory jurisdictional ruling,

leaving countless issues of law still to be litigated in

state court; and (2) it is not a final ruling even as to

personal jurisdiction because the Colorado Supreme

2

Court specifically stated that although the showing

made at the trial court level was sufficient to survive

Petitioner’s motion to dismiss, as the case proceeds, the

plaintiff may have to meet a higher burden to definitively establish that Colorado may exercise jurisdiction over Petitioner. Although this Court has adopted

some exceptions to the finality rule, none of them apply

here.

The second reason to deny the Petition is that the

procedural posture of the state court action and the

limited discovery at the trial court level make this case

a poor candidate for determining widespread issues of

personal jurisdiction. The appeal of this case concerns

the trial court’s denial of Petitioner’s motion to dismiss

under Colo. R. Civ. P. 12(b)(2) (lack of jurisdiction over

the person). At the trial court level, because of the very

low burden for defeating a jurisdictional defense on a

motion to dismiss, the parties conducted very limited

jurisdictional discovery, which included no discovery

directly on Petitioner, and the factual record is therefore very sparse. Moreover, because the trial court’s

ruling concerned a motion to dismiss determined on

documentary evidence, the plaintiff needed only to

make a prima facie showing of personal jurisdiction

to defeat the motion. The Colorado Supreme Court’s

decision determined only that the plaintiff made this

prima facie showing based on the limited factual record before it.

The third reason to deny the Petition is the allegations and documentation submitted to the trial court

supported a prima facie showing of jurisdiction, even

3

under the more stringent stream-of-commerce plus

test argued for by Petitioner. Thus, even if this Court

determines the Colorado Supreme Court was wrong to

adopt the pure stream-of-commerce test, the outcome

will remain unchanged, and the Court’s opinion will

essentially be an advisory opinion.

Finally, the decision below presents no conflict

with any decision of this Court. Petitioner claims that

the decision conflicts with the Court’s recent rulings on

personal jurisdiction. However, the decision cites and

relies on all this Court’s seminal decisions on personal

jurisdiction in product liability matters, while grounding its reasoning in longstanding precedent from this

Court.

The Court should deny the Petition.

------------------------------------------------------------------

STATEMENT OF THE CASE

I.

Background

Petitioner is a Taiwanese corporation that sells

radio control hobby products throughout the world

through a series of worldwide distributors. During all

relevant times Petitioner sold products throughout the

U.S., including the State of Colorado, through four

U.S.-based distributors, one of which was Respondent

Horizon.

This is a product liability case in which Respondent Allister Mark Boustred, M.D. (“Dr. Boustred”), alleges he was severely injured when a replacement part

4

of a radio control helicopter broke, resulting in part

of the blade of the helicopter striking him in the eye.

Dr. Boustred alleges that the cause of his injuries

was a design or manufacturing defect in the plastic

material of the replacement part. More particularly,

Dr. Boustred claims Petitioner manufactured the replacement part with air pockets or voids in the plastic/

polymer that weakened the part and caused it to

fracture, which in turn caused Plaintiff ’s injury. It is

undisputed that Petitioner designed, manufactured,

packaged, and sold both the helicopter and the replacement part.

II.

Procedural History

Dr. Boustred originally asserted claims in Colorado state court against Petitioner and several U.S.

distributors, including Horizon (the others were later

dismissed), under theories of strict liability and negligence. After being served in Taiwan, Petitioner immediately moved to dismiss the claims against it, under

Colo. R. Civ. P. 12(b)(2).

The trial court granted Horizon an additional 65

days to respond to Petitioner’s motion to dismiss, to

conduct limited discovery, including the depositions of

two other distributors of Petitioner, both headquartered in California. Horizon sought discovery from the

other distributors to rebut Petitioner’s contention that

it had insufficient contacts with the U.S. and Colorado. Following the limited discovery, Dr. Boustred and

5

Horizon filed responses to Petitioner’s motion to dismiss.

The trial court denied Petitioner’s motion to

dismiss, ruling that under Colorado law, because the

motion to dismiss was determined on documentary

evidence, Dr. Boustred needed only to make a prima

facie showing that personal jurisdiction was proper

to defeat the motion to dismiss. Pet. App. 48. The trial

court accepted the uncontroverted assertions contained in the complaint as true, and resolved otherwise disputed issues in the plaintiff ’s favor. Pet. App.

48. The trial court ultimately ruled that Dr. Boustred

had made a prima facie showing of jurisdiction under

the Colorado long-arm statute and the U.S. Constitution, ruling that Dr. Boustred’s allegations and supporting documents showed that Petitioner injected a

substantial number of products into the stream-ofcommerce knowing that those products would reach

Colorado and that Petitioner took steps to market its

products in the U.S. and Colorado. Pet. App. 52-53.

Petitioner then requested the trial court certify

the order denying the motion to dismiss for interlocutory appeal under Rule 4.2 of the Colorado Appellate

Rules. The trial court granted the certification request

and the Colorado Court of Appeals accepted jurisdiction. Pet. App. 40-45. The Colorado Court of Appeals, in

a unanimous decision, affirmed the trial court’s ruling,

holding under Marks v. U.S., 430 U.S. 188 (1977), it was

compelled to follow the narrowest of the Supreme

Court’s decisions on stream-of-commerce jurisdiction:

Justice Breyer’s concurrence in J. McIntyre Machinery,

6

Ltd. v. Nicastro, 564 U.S. 873 (2011) and Justice Brennan’s concurrence in Asahi Metal Indus. Co. v. Superior

Court, 480 U.S. 102, 109 (1987). Under those rulings,

the Court of Appeals held it was compelled to apply

this Court’s decision in World-Wide Volkswagen Corp.

v. Woodson, 444 U.S. 286 (1980), as it remains the prevailing decision articulating the stream-of-commerce

theory. Pet. App. 36. The Colorado Court of Appeals further held Dr. Boustred made a prima facie showing

of jurisdiction over Petitioner under World-Wide Volkswagen and the stream-of-commerce theory of jurisdiction. Pet. App. 36-39.1

Petitioner appealed to the Colorado Supreme

Court, which affirmed. Pet App. 23. The Colorado Supreme Court, in a unanimous decision, agreed that it was

bound by the concurring decisions in Asahi and J. McIntyre, both of which adopted the stream-of-commerce

test set forth in World-Wide Volkswagen. Pet. App. 1617. The Colorado Supreme Court therefore held:

To make a prima facie showing [of personal

jurisdiction] under World-Wide Volkswagen, a

plaintiff must allege sufficient facts to support a reasonable inference that a defendant

placed goods into the stream-of-commerce

with the expectation that the products will be

purchased in the forum state.

Pet. App. 19.

1

The Colorado Court of Appeals determined that it did not

need to address whether the trial court applied the more stringent

stream-of-commerce plus test because the Court of Appeals adopted

the stream-of-commerce test from World-Wide Volkswagen. Pet.

App. 35-36 n.2.

7

The Colorado Supreme Court held that Dr. Boustred

had carried his burden to make such a prima facie

showing, as he had alleged and shown with documentation obtained through limited discovery:



Petitioner manufactured the subject radio-controlled helicopter and subject allegedly defective main rotor holder in

Taiwan where the company is based;



Petitioner sells its products via an international distributorship network that includes four distributors in the United

States, one of which is Horizon;



The rotor holder at issue here was distributed by Horizon and purchased in Colorado; Horizon has sold over $350,000

worth of Petitioner’s products in Colorado;



Petitioner placed no limitations on where

Horizon could distribute products in the

United States;



Petitioner’s products are sold throughout the United States, including Colorado;



All four U.S. distributors have distributed

Petitioner’s products in Colorado;



All four distributors are promoted and

advertised by Petitioner, and in particular on Petitioner’s website;



Petitioner provided marketing materials

to all of its U.S. distributors;

8



Petitioner attended trade shows in the

U.S. where it actively marketed its products; and



Petitioner established channels through

which consumers could receive assistance

with Petitioner’s products.

Pet. App. 19-20. The Colorado Supreme Court ultimately determined that under the applicable precedent of this Court and the allegations and evidence

submitted to the trial court, Dr. Boustred made a

prima facie showing of jurisdiction over Petitioner and

it affirmed the judgment of the Colorado Court of Appeals. Pet. App. 20-21, 23.

------------------------------------------------------------------

REASONS THE COURT

SHOULD DENY THE PETITION

I.

This Court Lacks Jurisdiction Because the

State Court’s Decision is Not Final

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. § 1257.2 The decision

merely holds that Dr. Boustred made a prima facie

showing of jurisdiction sufficient to survive Petitioner’s

motion to dismiss. In fact, the Colorado Supreme Court

2

“Final judgments or decrees rendered by the highest court

of a State in which a decision could be had, may be reviewed by

the Supreme Court by writ of certiorari where the validity of a

treaty or statute of the United States is drawn in question. . . .”

9

specifically noted that the decision was only based on

the showing required to survive a motion to dismiss:

We note, however, that this showing only allows Boustred to survive Align’s motion to dismiss. As the case proceeds, Boustred may

have to meet a higher burden to definitively

establish that Colorado may exercise jurisdiction over Align. See Goettman, 176 P.3d at

66 n.3 (“Although a prima facie showing of

personal jurisdiction [over a non-resident defendant] is sufficient to overcome a motion to

dismiss for lack of jurisdiction when the court

rules on the motion on documentary evidence

alone, the plaintiff must establish personal jurisdiction by a preponderance of the evidence

if the defendant raises the challenge again

prior to the close of trial.”).

Pet. App. 21 n.5. The decision is therefore not final as

to jurisdiction, and none of the exceptions to the finality requirement apply here.

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

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

the Court’s review to final state court judgments. “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.’ ” Jefferson v. City of

10

Tarrant, Ala., 522 U.S. 75, 81 (1997) (quoting Market

Street R. Co. v. R.R. Comm’n of Cal., 324 U.S. 548, 551

(1945)). 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.” N.D.

State Bd. of Pharm. 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:

[I]n the realm of potential conflict between

the courts of two different governments. And

so, ever since 1789, Congress has granted this

Court the power to intervene in State litigation only after ‘the highest court of a State in

which a decision in the suit could be had’ has

rendered a ‘final judgment or decree.’ § 237 of

the Judicial Code, 28 U.S.C. § 344(a). This requirement is not one of those technicalities to

be easily scorned. It is an important factor in

the smooth working of our federal system.

Id.

11

B. The Colorado Supreme Court has not Issued a Final Judgment or Decree

The Colorado Supreme Court’s decision is not

final in at least two respects. First, it is not “an effective determination of the litigation” but rather is “of

merely interlocutory or intermediate steps therein.”

See Jefferson, 522 U.S. at 81. Similar to the circumstances present in Jefferson, the Colorado Supreme

Court’s decision here did not terminate the litigation,

but merely answered a single certified question. See

id.; Pet. App. 3. In fact, the underlying litigation is not

even at issue, as Petitioner has not yet filed an answer.

Following Petitioner’s answer, the parties will continue

with discovery, dispositive motions, and trial. “Absent

settlement or further dispositive motions, the proceedings on remand will include a trial on the merits. . . .”

Jefferson, 522 U.S. at 81. The Colorado Supreme Court’s

decision is therefore not a final judgment and does not

meet the first test in Jefferson.

Second, the decision below does not finally resolve

whether Petitioner is subject to personal jurisdiction

in Colorado’s courts because the issue is subject to “further review or correction.” See id. Because the motion

to dismiss was determined on documentary evidence,

Dr. Boustred needed only to make a prima facie showing that personal jurisdiction was proper to defeat the

motion to dismiss, and the trial court accepted the uncontroverted assertions contained in the complaint as

true, and resolved otherwise disputed issues in the

plaintiff ’s favor. Pet. App. 48. Dr. Boustred made the

necessary prima facie showing. However, the Colorado

12

Supreme Court noted that “this showing only allows

Boustred to survive Align’s motion to dismiss. As the

case proceeds, Boustred may have to meet a higher

burden to definitively establish that Colorado may exercise jurisdiction over Align.” Pet. App. 21 n.5. Thus,

not only is there not a final judgment in the state court

proceeding, the issue of personal jurisdiction has not

finally been determined.

C. The Case does not Fit the Exceptions

to the Finality Rule Identified in Cox

Broadcasting Corp.

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. Petitioner cites Cox Broadcasting Corp.

for the proposition that the issue of personal jurisdiction under the Due Process Clause of the Fourteenth

Amendment is not subject to further review in the Colorado courts, which, as demonstrated above, is not accurate. Pet. 1. Although Petitioner does not address the

finality problem in the Petition, it is clear that none of

the Cox exceptions applies here.

1. The first Cox exception 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

13

practical purposes concluded.” Cox, 420 U.S. at 479. For

this exception, the Cox Court cited Mills v. Alabama,

384 U.S. 214 (1966), in which the state supreme court

had rejected the petitioner’s only defense and remanded for a trial, to which the petitioner could not

prevail without the defense. The outcome was therefore “preordained.” See id. (citing Mills, 384 U.S. at

217-18). In contrast, the Colorado Supreme Court’s decision does not render the outcome of the case “preordained.” In fact, the Colorado Supreme Court left open

the possibility that the personal jurisdiction defense

may be raised at a later time in the case, for which the

burden may be higher on Dr. Boustred than it was on

the motion to dismiss under Colo. R. Civ. P. 12(b)(5). See

Pet. App. 21 n.5. Petitioner will likely raise several

other defenses to Dr. Boustred’s claims, further distinguishing this case from Mills. Therefore, the first Cox

exception does not apply.

2. The second Cox exception 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. Again, this exception does

not apply because Petitioner may prevail in the trial

court on the personal jurisdiction issue later in the

case or may prevail on the merits of Dr. Boustred’s

claims. Therefore, the issue of the trial court’s denial of

Petitioner’s motion to dismiss under Colo. R. Civ. P.

12(b)(5) (in which Dr. Boustred needed only to make a

prima facie showing of jurisdiction) will not necessarily

require a decision regardless of the outcome of future

14

state court proceedings. Thus, the second Cox exception does not apply.

3. The third Cox exception 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.” Id. at

481. This occurs in cases where “if the party seeking

interim review ultimately prevails on the merits, the

federal issue will be mooted; if he were to lose on the

merits, however, the governing state law would not

permit him again to present his federal claims for review.” Id. To illustrate this exception, the Cox Court

cites California v. Stewart, 384 U.S. 436 (1966), which

involved a state court decision that reversed a conviction on constitutional grounds and remanded for retrial. Id. The Stewart Court held that this state court

decision on the constitutional issue “was ‘final’ since an

acquittal of the defendant at trial would preclude, under state law, an appeal by the State.” Id. (citing Stewart, 384 U.S. at 498 n.71). These circumstances are not

present here. If Dr. Boustred prevails on personal jurisdiction later in the case (when the burden on Dr.

Boustred is higher), Petitioner can raise the issue following that determination, even if Dr. Boustred ultimately prevails on the merits. If Petitioner ultimately

prevails on personal jurisdiction in state court, Dr.

Boustred or Horizon can appeal that determination.

15

4.

The fourth Cox exception concerns cases:

[W]here the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking

review here might prevail on the merits on

nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court,

and where reversal of the state court on the

federal issue would be preclusive of any further litigation on the relevant cause of action

rather than merely controlling the nature and

character of, or determining the admissibility

of evidence in, the state proceedings still to

come. In these circumstances, if a refusal immediately to review the state-court decision

might seriously erode federal policy, the Court

has entertained and decided the federal issue,

which itself has been finally determined by

the state courts for purposes of the state litigation.

Id. at 482-83. This exception has no application here

for three reasons.

First, as shown above, the state court has not “finally decided” the federal issue of personal jurisdiction. Rather, the trial court, Colorado Court of Appeals,

and Colorado Supreme Court only held Dr. Boustred

made a prima facie showing of personal jurisdiction

sufficient to withstand Petitioner’s motion to dismiss,

and the Supreme Court specifically held that Petitioner can renew its motion at any time prior to the

end of trial. Pet. App. 21 n.5, 37, 53.

16

Second, the Court’s review would not be “preclusive of any further litigation” for similar reasons to

those present in Nike, Inc. v. Kasky, 539 U.S. 654 (2003).

In Nike, the Court determined that a state court decision addressing a First Amendment defense was not

final because the Court’s decision would not have necessarily ended the litigation. Similarly, here, review of

the personal jurisdiction issue will not preclude further

litigation. In fact, even if this Court grants certiorari

and accepts Petitioner’s argument that the stream-ofcommerce plus test should apply, the trial court’s ruling would be unchanged because the allegations and

documentation submitted to the trial court met both

the pure stream-of-commerce test as well as the more

stringent stream-of-commerce plus test:

Mr. Boustred’s allegations and supporting

documents show that Align injected a substantial number of products into the streamof-commerce knowing that those products

would reach Colorado. Additionally, Align allegedly took steps to market its products in

the U.S. and Colorado.

Pet. App. 52-53 (emphasis supplied). Thus, review

would merely result in an advisory ruling and would

not be preclusive of any further litigation.

Third, refusal to review the state court decision

immediately would not seriously erode federal policy.

No federal policy requires review of personal jurisdiction issues at the pleading stage, especially considering the parties have been without the benefit of discovery on Petitioner. This situation is a far cry from a

17

case like Southland Corp. v. Keating, 465 U.S. 1, 6-8

(1984), in which the Court reviewed a state court ruling that the Federal Arbitration Act did not preempt a

state law. There, failure to review immediately would

have eroded the federal policy in favor of enforcing

agreements to arbitrate. Id.; see also Local 438 Constr.

& Gen. Laborers’ Union v. Curry, 371 U.S. 542 (1963)

(final state court decision on whether a dispute is

within exclusive power of the National Labor Relations

Board). No similar federal policy concern exists here,

where the Colorado Supreme Court’s decision allows

the issue to be raised by Petitioner later in the case.

See Pet. App. 21 n.5. In fact, if issues of personal jurisdiction on motions to dismiss at the pleading stage fit

the fourth Cox exception, then the exception would

swallow the rule.

D. The Remaining Cases Cited by Petitioner in its Statement of Jurisdiction

are Distinguishable

Aside from Cox, Petitioner cites two cases in support of its argument for jurisdiction in this Court,

BNSF Ry. v. Tyrrell, 137 S. Ct. 1549 (2017) and Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S.

915 (2011). Both are distinguishable.

In BNSF there were two separate cases concerning general jurisdiction over BNSF in Montana. 137

S. Ct. at 1554. BNSF moved to dismiss both suits for lack

of personal jurisdiction, and its motion was granted in

one case and denied in the other. Id. After consolidating

18

the two cases, the Montana Supreme Court held that

Montana courts possess general personal jurisdiction

over BNSF. See Tyrrell v. BNSF Ry. Co., 373 P.3d 1, 9

(Mont. 2016). Unlike the case at bar, the Montana Supreme Court’s decision foreclosed BNSF from raising

the issue at later points in the litigations, as the decision was conclusive that Montana courts had general

jurisdiction over BNSF, and it could be sued in Montana with respect to matters unrelated to that state.

See id. Such is not the case here, as the Colorado Supreme Court’s decision is not conclusive as to jurisdiction over Petitioner and certainly does not stand for

the proposition that there is conclusively general jurisdiction and that Petitioner can be sued in Colorado in

any dispute. See Pet. App. 21 n.5.

In Brown, the issue also concerned general personal jurisdiction, this time over foreign subsidiaries of

The Goodyear Tire and Rubber Company (the North

Carolina Court of Appeals had determined the North

Carolina courts lacked specific jurisdiction over the

subsidiaries but held that general jurisdiction was

proper). See 564 U.S. at 919-20. Again, the underlying

appeals in Brown were conclusive as to general jurisdiction and did not merely hold that a prima facie

showing of specific jurisdiction had been made. See

generally Brown v. Meter, 681 S.E.2d 382, 388 (N.C.

App. 2009).

The decisions in BNSF and Brown, unlike the case

at bar, did not include rulings subject to further state

court review. Horizon is not aware of any case where

this Court has exercised jurisdiction to review a state

19

court ruling that addresses the sufficiency of allegations of personal jurisdiction, but where the defendant

retains the right to renew a challenge to personal

jurisdiction at a later point in the litigation. The J.

McIntyre case is instructive here. There, 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 at the

trial court level. See id. at 579. It was only after

the New Jersey Supreme Court reviewed the second

decision – a decision that finally asserted personal jurisdiction based on a developed record – that the defendant sought certiorari and this Court granted

review. See generally J. McIntyre, 564 U.S. 873.

Granting certiorari at this stage would result in

piecemeal review of a state court ruling on personal jurisdiction at the pleading stage, before state court remedies are exhausted. Because the state court decision

is not a final judgment, this Court lacks jurisdiction to

grant the writ. The Court should therefore deny the

Petition.

20

II.

The Procedural Posture of the State Court

Action and the Incomplete Record Make

This Case a Poor Candidate for Determining Widespread Issues of Personal Jurisdiction

The jurisdictional decision was determined at the

trial court level on a motion to dismiss under Colo. R.

Civ. P. 12(b)(5). Because the motion to dismiss was determined on documentary evidence, Dr. Boustred

needed only to make a prima facie showing that personal jurisdiction was proper to defeat the motion to

dismiss, and the trial court accepted the uncontroverted assertions contained in the complaint as true

and resolved otherwise disputed issues in Dr. Boustred’s favor. Pet. App. 48.

Although Dr. Boustred and Horizon were able to

depose representatives of U.S.-based distributors of Petitioner’s products, there was no discovery on Petitioner, which is located in Taiwan. Thus, there is a very

incomplete record before this Court, as there have been

no disclosures or discovery from the party with the

most information on the jurisdictional question.

Granting the Petition to review nonfinal rulings

would advance a poor vehicle for determining widespread issues of personal jurisdiction, which clearly

will affect countless cases going forward. For example,

there is nothing in the record showing how many units

Petitioner shipped to its U.S.-based distributors or

what amount of revenue Petitioner realized in its sales

to U.S.-based distributors. There is also nothing in the

21

record showing how many of Petitioner’s units were ultimately sold to retailers or consumers in the State of

Colorado.3

Additionally, although Petitioner argues there is

no evidence it targeted the State of Colorado, the trial

court was presented with evidence of occasions in

which Petitioner facilitated the sale of its products to

customers in Colorado, by referring Colorado retailers

directly to one of Petitioner’s U.S.-based distributors

for potential sales of Petitioner’s products.4 In both

cases, the customers stated they were located in Colorado. In one case, Petitioner’s representative even

stated to the Colorado retailer, “We do welcome you to

sell align [sic] products. And in order to save your delivery cost and time, please contact with [sic] our distributor in USA for further purchasing.” Although

these particular referrals took place after the subject

incident, they directly refuted the sworn affidavit of

Petitioner’s manager, which post-dated the referrals

and wrongly stated that Petitioner does not authorize,

approve, or endorse the distribution of its products

within Colorado.

3

The evidence reflected that Horizon, one of four U.S.-based

distributors, sold $4,911,143 of Petitioner’s products throughout

the U.S., including sales of Petitioner’s products in Colorado

amounting to $355,107.57.

4

These communications were produced by the U.S.-based

distributor Align Aerial, pursuant to a subpoena duces tecum, as

that distributor and Petitioner’s personnel were included on the

email chain.

22

Petitioner’s directly referring Colorado customers

to its distributor would certainly qualify as authorizing, approving, and endorsing the distribution of its

products to Colorado. Horizon suspects there are other

communications directly between Petitioner and Colorado consumers or retailers which predate the accident; however, Dr. Boustred and Horizon have not had

the chance to propound discovery directly on Petitioner

to obtain direct communications between Petitioner

and potential Colorado customers.

The trial court was also presented with evidence

showing that consumers can order Petitioner’s products directly from Amazon.com to Colorado, and such

orders are “shipped from and sold by Amazon.com.”

Because the parties have not had the opportunity

to propound discovery on Petitioner, it is unknown

whether Petitioner has a distribution contract with

Amazon.com or by what arrangement Amazon.com directly sells Petitioner’s products to the State of Colorado.

Due to the incomplete record and the procedural

posture of the case, any decision will be based on the

limited documentary evidence and allegations of Dr.

Boustred’s complaint and will turn on whether Dr.

Boustred made a prima facie showing of jurisdiction.

This low threshold will offer little guidance to future

courts in their attempts to address the personal jurisdiction question in a product liability context.

In contrast, a record after additional discovery

can show the quality and degree of contacts between

23

Petitioner, its distributors and affiliates, and the forum

state. Even if the Court has jurisdiction, it will take a

great risk in granting review prior to such discovery.

See generally 4 Charles Alan Wright et al., Fed. Prac.

& Proc. Civ. § 1067.4 (4th ed. 2015) (a “factual record

in any given case is likely to be particularly important”

to analysis of personal jurisdiction involving streamof-commerce, and parties “would be wise to seek all relevant discovery regarding the jurisdiction question”);

see also Minnick v. Cal. Dep’t of Corr., 452 U.S. 105, 127

(1981) (“[W]e should not address the constitutional issues until the proceedings in the trial court are finally

concluded and the state appellate courts have completed their review of the trial court record”); Ariz. v.

Maricopa County Med. Soc., 457 U.S. 332, 358 (1982)

(J. Powell, dissenting) (“I do not think today’s decision

on an incomplete record is consistent with proper judicial resolution of an issue of this complexity, novelty,

and importance to the public”).

Because the procedural posture of the state court

action and the incomplete record make this case a poor

candidate for determining widespread issues of personal jurisdiction, the Court should deny the Petition.

24

III. This Case is a Poor Vehicle Because the Allegations and Facts Presented to the Trial

Court Supported a Prima Facie Showing

of Jurisdiction Under the More Stringent

Stream-of-Commerce Plus Test from Asahi

This case does not present a good vehicle for resolving the competing opinions in Asahi and J. McIntyre.

The allegations and documentary evidence submitted

to the trial court supported a prima facie showing that

exceeded the “regular and anticipated” flow of commerce envisioned by Justice Brennan in Asahi as sufficing to assert personal jurisdiction and met Justice

O’Connor’s additional requirement of conduct showing

intent to serve the forum state’s market. Therefore, the

prima facie showing of jurisdiction would be made

whether or not this Court agrees with the Colorado Supreme Court’s analysis and the outcome would remain

unchanged.

In Asahi, the Court issued a fractured opinion addressing the stream-of-commerce theory. All justices

agreed that, given the facts of that case, traditional notions of fair play and substantial justice prevented the

assertion of personal jurisdiction. See 480 U.S. at 116,

121-22. However, they differed on the proper analysis

for the showing of minimum contacts required to show

that a defendant had purposefully availed itself of the

forum market. See id. at 111-12, 116-17.

Justice O’Connor wrote for four justices and concluded that placing a product into the stream-ofcommerce, without more, was insufficient to establish

25

personal jurisdiction even if the defendant knew that

the product may or will enter the forum state. See id.

at 112. In Justice O’Connor’s view, the mere placement

of a product into the stream-of-commerce did not necessarily show an intent by a manufacturer to serve a

particular market. Id. Instead, there must be some additional conduct of the defendant that showed such an

intent. Id.

Justice Brennan also wrote for four justices, explaining that the stream-of-commerce theory showed a

defendant’s purposeful availment of a market because

it “refers not to unpredictable currents or eddies, but

to the regular and anticipated flow of products from

manufacture to distribution to retail sale.” Id. at 117.

Justice Brennan would thus find purposeful availment

of a forum where a defendant “is aware that the final

product is being marketed in the forum State.” Id.

The fragmented decision in J. McIntyre also reflected competing views of the stream-of-commerce

test. Justice Kennedy wrote for the plurality that the

principal inquiry “is whether the defendant’s activities

manifest an intention to submit to the power of a

sovereign. In other words, the defendant must ‘purposefully avai[l] itself of the privilege of conducting

activities within the forum State, thus invoking the

benefits and protections of its laws.’ ” 564 U.S. at 882

(quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958))

(alterations in original). The plurality then concluded

that “[t]he defendant’s transmission of goods permits

the exercise of jurisdiction only where the defendant

can be said to have targeted the forum; as a general

26

rule, it is not enough that the defendant might have

predicted that its goods will reach the forum State.” Id.

Justice Breyer did not agree with the rule proposed by the plurality (and argued for by Petitioner),

but rather held that J. McIntyre could be resolved by

applying existing Supreme Court precedent:

In my view, the outcome of this case is determined by our precedents. . . .

None of our precedents finds that a single isolated sale, even if accompanied by the kind of

sales effort indicated here, is sufficient. Rather, this Court’s previous holdings suggest

the contrary. The Court has held that a single

sale to a customer who takes an accidentcausing product to a different State (where

the accident takes place) is not a sufficient basis for asserting jurisdiction. See World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286,

100 S. Ct. 559, 62 L. Ed. 2d 490 (1980). And

the Court, in separate opinions, has strongly

suggested that a single sale of a product in a

State does not constitute an adequate basis

for asserting jurisdiction over an out-of-state

defendant, even if that defendant places his

goods in the stream-of-commerce, fully aware

(and hoping) that such a sale will take place.

See Asahi Metal Industry Co. v. Superior

Court of Cal., Solano Cty., 480 U.S. 102, 111,

112, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987)

(opinion of O’Connor, J.) (requiring ‘something

more’ than simply placing ‘a product into

the stream-of-commerce,’ even if defendant is

‘awar[e]’ that the stream ‘may or will sweep

27

the product into the forum State’); id., at 117,

107 S. Ct. 1026, 94 L. Ed. 2d 92 (Brennan, J.,

concurring in part and concurring in judgment) (jurisdiction should lie where a sale in

a State is part of ‘the regular and anticipated

flow’ of commerce into the State, but not

where that sale is only an ‘edd[y],’ i.e., an isolated occurrence); id., at 122, 107 S. Ct. 1026,

94 L. Ed. 2d 92 (Stevens, J., concurring in part

and concurring in judgment) (indicating that

‘the volume, the value, and the hazardous

character’ of a good may affect the jurisdictional inquiry and emphasizing Asahi’s ‘regular course of dealing’).

...

I would not go further. 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 888-90.

Contrary to Petitioner’s assertions, this case does

not cleanly present the stream-of-commerce issue because the facts alleged here meet both tests advanced

in Asahi. With regard to the minimum contacts analysis, the trial court properly ruled that Dr. Boustred’s

allegations were sufficient to make a prima facie showing that Petitioner committed a tort in Colorado:

Colorado’s long-arm statute, C.R.S. 13-1-124,

grants personal jurisdiction over a non-resident

28

defendant under several circumstances, including when a defendant commits any tortious act within Colorado. But, the tortious act

and the injury do not need to both occur in

Colorado to satisfy the long-arm statute; rather, the statute is satisfied if either occurs in

Colorado. Classic Auto Sales, Inc. v. Schocket,

832 P.2d 233, 235-36 (Colo. 1992). Here, Mr.

Boustred alleges that Align committed multiple torts, including negligence and strict liability. Moreover, Mr. Boustred asserts that the

main helicopter rotor holder manufactured by

Align, which purportedly suffered both design

and manufacturing defects, injured him in

Colorado when it failed.

Accordingly, the Court finds that Mr. Boustred

has made a prima facie showing that Align

committed a tort in Colorado.

Pet. App. 49.

With regard to the due process element, the trial

court ruled that Dr. Boustred had made a prima facie

showing of jurisdiction, as the allegations and supporting documents showed that Petitioner injected

a substantial number of products into the stream-ofcommerce knowing that those products would reach

Colorado and that Petitioner took steps to market its

products in the U.S. and Colorado:

The Court has elected to rule on the instant

motion based solely on the documentary

evidence submitted to the Court. As such,

Mr. Boustred need only make a prima facie

showing that the Court has specific personal

29

jurisdiction over Align. Mr. Boustred’s allegations and supporting documents show that

Align injected a substantial number of products into the stream-of-commerce knowing

that those products would reach Colorado. Additionally, Align allegedly took steps to market its products in the U.S. and Colorado.

While Align submitted affidavits and other

materials to counter Mr. Boustred’s allegations, the Court must resolve any controverted facts in favor of Mr. Boustred. Thus, for

the purposes of the instant motion, the Court

finds that Align purposefully availed itself of

Colorado, and that Mr. Boustred’s injuries

arose out of Align’s contacts with Colorado.

See Etchieson v. Cent. Purchasing, LLC, 232

P.3d 301 (Colo. App. 2010). Accordingly, Mr.

Boustred has made a prima facie showing

that an assertion of specific personal jurisdiction over Align does not offend the due process

requirements of the U.S. Constitution.

Pet. App. 52-53 (emphasis supplied). Importantly, the

trial court considered the “additional” steps Petitioner

allegedly took after injecting a substantial number of

products into the stream-of-commerce to “market its

products in the U.S. and Colorado.” Id. This additional

conduct is the “plus” in the stream-of-commerce plus

analysis. Thus, the allegations and facts submitted to

the trial court were sufficient to make a prima facie

showing of jurisdiction under the more stringent test

from Justice O’Connor’s plurality in Asahi. The outcome therefore would remain unchanged whether this

30

Court agrees or disagrees with the Colorado Supreme

Court.

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

where jurisdiction would exist even under the most

stringent interpretation of this Court’s rulings. See,

e.g., Polar Electro Oy v. Suunto Oy, 829 F.3d 1343 (Fed.

Cir. 2016); In re Chinese Drywall Prod. Liab. Litig., 753

F.3d 521 (11th Cir. 2014); Russell v. SNFA, 987 N.E.2d

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

Petitioner attempts to liken the facts of this case

to those in J. McIntyre. Although Horizon vehemently

disputes that the facts in this case are similar to those

in J. McIntyre, even with the undeveloped record before the Court, Petitioner’s argument shows why this

case is not a good candidate for resolving the competing stream-of-commerce theories. Given that J. McIntyre was decided only seven years ago (on a more

complete record), there is nothing to suggest that if

the Court grants certiorari in the present case, it will

result in a majority opinion that resolves the split decisions in Asahi and J. McIntyre, especially given the

incomplete record and the fact that Dr. Boustred

needed only to make a prima facie showing of jurisdiction at the trial court level.

Furthermore, the allegations in Dr. Boustred’s

complaint and documentary evidence, construed liberally, as the trial court did in this case, satisfy either

stream-of-commerce test from Asahi. This case is thus

a deeply flawed vehicle for determining widespread

31

issues of personal jurisdiction, as this case would be

nothing more than an advisory opinion. The Court

should therefore deny the Petition.

IV. The Colorado Supreme Court’s Decision Does

Not Conflict with the Decisions of this Court

The Colorado Supreme Court properly applied

a stream-of-commerce analysis, requiring that Petitioner’s contacts be more than random, fortuitous, or

attenuated. Such a test is consistent with this Court’s

decisions.

Petitioner and amici claim that the decision below

runs contrary to this Court’s precedent. Pet. 20-24;

Amici Br. 10-13. Petitioner argues that its connection

to the State of Colorado through distributors amounts

to acts of third parties that cannot support personal

jurisdiction over Petitioner. Pet. 20-24. Petitioner cites

Walden v. Fiore, 134 S. Ct. 1115 (2014) for this proposition. Pet. 22-23. In Walden, this Court did not address

the stream-of-commerce theory at all, but reaffirmed

the principle that jurisdiction must be based on the

defendant’s connection with the forum as contrasted

with “random, fortuitous, or attenuated” contacts

made through a third party’s connection with the forum. Walden, 134 S. Ct. at 1123.

Petitioner’s argument misunderstands the streamof-commerce theory, which has never been an avenue

for avoiding the requirement that purposeful availment be based on the acts of the defendant; rather, the

stream-of-commerce theory is a tool by which the

32

Court can determine that a defendant who is not physically present in a forum state nevertheless is purposefully seeking to take advantage of its markets. See, e.g.,

World-Wide Volkswagen, 444 U.S. at 297 (defendant

who delivers its products into stream-of-commerce

with expectation that it will be purchased in forum

state seeks to take advantage of that market, even if

indirectly); accord Asahi, 480 U.S. at 117 (Brennan, J.,

concurring). Thus, when a manufacturer places its

products into the stream-of-commerce, knowing and

intending that the regular chains of commercial distribution will bring the product to a particular market, it

is seeking to serve that market and to avail itself of the

benefits and protections of the market.

The stream-of-commerce theory is perfectly consistent with this Court’s requirement that jurisdiction

be based on acts of the defendant’s purposefully availing itself of the subject market. Therefore, cases like

Walden (a non-stream-of-commerce case which underscores the importance of a defendant’s conduct) do

not impact the continued validity of the stream-ofcommerce principles.

The Colorado Supreme Court faithfully relied on

and applied longstanding precedent in World-Wide

Volkswagen, and applied this Court’s later divided

opinions conservatively by issuing a narrow decision

based on the standard for addressing Petitioner’s motion to dismiss at the pleading stage. The Colorado

33

Supreme Court’s decision poses no conflict with the

decisions of this Court.

The Court should therefore deny the Petition.

V.

Petitioner Advocates for a Rule that Would

Insulate All Non-Resident Manufacturers from

Liability in the U.S.

Petitioner and amici advocate a rule that would

effectively insulate all non-resident manufacturers

from suit within a forum state – at least those manufacturers sophisticated enough to structure their businesses to avoid such suits. As held by the Colorado

Supreme Court, “Adopting such a position would render foreign manufacturers immune from suit in the

U.S. so long as they sell their products in the U.S.

through separately incorporated U.S.-based distributors. Such a result would be inequitable, as it would

allow foreign manufacturers to receive the substantial

economic benefit from sales to the U.S. market without

incurring resulting liabilities and costs.” Pet. App. 2122.

Petitioner’s and amici’s view of what constitutes

an act of the defendant directed toward a forum state

(and what constitutes unilateral acts of third parties)

would allow sophisticated corporations such as Petitioner to choose for themselves whether and where

they will be subject to lawsuits in the U.S.. However,

as this Court held in Burger King, “where individuals

‘purposefully derive benefit’ from their interstate activities, it may well be unfair to allow them to escape

34

having to account in other States for consequences that

arise proximately from such activities[.]” Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 473-74 (1985) (internal citation omitted).

It would be antithetical to this Court’s precedent

to allow a sophisticated foreign manufacturer who engaged the use of multiple U.S.-based distributors to sell

its products in every state to escape liability simply because its marketing and sales efforts reflected a national focus rather than specific focus tailored to each

state individually.

------------------------------------------------------------------

CONCLUSION

For the reasons stated above, this Court should

deny Petitioner’s request for writ of certiorari.

Respectfully submitted,

CONOR P. BOYLE

Counsel of Record

KENNETH H. LYMAN

RYAN L. WINTER

HALL & EVANS, LLC

1001 17th Street, Suite 300

Denver, Colorado 80202

(303) 628-3300

boylec@hallevans.com

lymank@hallevans.com

winterr@hallevans.com