Amicus Curiae Brief — Exxon Mobil Corporation, Petitioner v. Maura Healey, Attorney General of Massachussetts

No. 18-311

IN THE

Supreme Court of the United States

EXXON MOBIL CORPORATION, PETITIONER,

v.

MAURA HEALEY, ATTORNEY GENERAL OF

MASSACHUSETTS, RESPONDENT.

ON A PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS

__________________________________________________________________________________________________

BRIEF OF AMICUS CURIAE DRI–THE VOICE

OF THE DEFENSE BAR IN SUPPORT OF

PETITIONER

__________________________________________________________________________________________________

JOHN F. KUPPENS

MATTHEW T. NELSON

President

Counsel of Record

DRI–THE VOICE OF THE ADAM T. RATLIFF

DEFENSE BAR

WARNER NORCROSS + JUDD LLP

55 West Monroe Street 900 Fifth Third Center

Chicago, IL 60603

111 Lyon Street N.W.

(615) 428-8638

Grand Rapids, MI 49503

john.kuppens@

(616) 752-2000

nelsonmullins.com

mnelson@wnj.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

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

INTEREST OF THE AMICUS CURIAE.................... 1

SUMMARY OF ARGUMENT ..................................... 4

ARGUMENT................................................................ 6

I.

The Court should grant the Petition

because the question presented has

plagued federal and state courts,

resulting in uneven application of

critical Due Process Clause protections ........ 6

II. The Court should also grant the

Petition

because

constitutional

personal jurisdiction requirements are

among the only boundaries on state

attorneys general’s authority to

investigate out-of-state residents ................ 11

CONCLUSION .......................................................... 15

ii

TABLE OF AUTHORITIES

Page(s)

Cases

American Dental Co-op v. Attorney General of

State of New York,

514 N.Y.S.2d 228 (N.Y. App. Div. 1987) ............14

Beydoun v. Wataniya Restaurant Holding, Q.S.C.,

768 F.3d 499 (6th Cir. 2014) ........................... 8, 10

Bristol-Myers Squibb Co. v. Superior Court of

California, 137 S. Ct. 1773 (2017) ........ 7, 9, 10, 14

Bristol-Myers Squibb Co. v. Superior Court,

377 P.3d 874 (Cal. 2016) .......................................9

Burger King Corp. v. Rudzewicz,

471 U.S. 462 (1985) ...............................................6

Carnival Cruise Lines, Inc. v. Shute,

499 U.S. 585 (1991) ...............................................7

Chew v. Dietrich,

143 F.3d 24 (2d Cir. 1998) ....................................9

Daimler AG v. Bauman,

571 U.S. 117 (2014) ...............................................2

Employers Mutual Casualty Co. v. Bartile Roofs,

Inc., 618 F.2d 1153 (10th Cir. 2010)................. 7, 8

Evans v. State,

963 P.2d 177 (Utah 1998) ...................................13

Everdry Marketing & Management v. Carter,

885 N.E.2d 6 (Ind. Ct. App. 2008) ......................14

Goodyear Dunlop Tires Operations, S.A. v.

Brown, 564 U.S. 915 (2011) .............................. 2, 6

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Hanson v. Denckla,

357 U.S. 235 (1958) ......................................... 2, 14

Helicopteros Nacionales de Colombia, S.A. v. Hall,

466 U.S. 408 (1984) ....................................... 3, 6, 7

International Shoe Co. v. Washington,

326 U.S. 310 (1945) ...............................................2

Jepsen v. Assured RX, LLC,

2017 WL 6417819 (Conn. Super. Ct. Nov. 14,

2017) ....................................................................14

Lanier v. American Board of Endodontics,

843 F.2d 901 (6th Cir. 1988) .................................8

Miller Yacht Sales, Inc. v. Smith,

384 F.3d 93 (3d Cir. 2004) ....................................7

Moki Mac River Expeditions v. Drugg,

221 S.W.3d 569 (Tex. 2007) ..................................8

Myers v. Casino Queen, Inc.,

689 F.3d 904 (8th Cir. 2012) .................................7

O’Connor v. Sandy Lane Hotel Co.,

496 F.3d 312 (3d Cir. 2007) .............................. 8, 9

Oklahoma Press Publishing Co. v. Walling,

327 U.S. 186 (1946) .............................................13

Oldfield v. Pueblo De Bahia Lora, S.A.,

558 F.3d 1210 (11th Cir. 2009) .............................9

People ex rel. Babbitt v. Herndon,

581 P.2d 688 (Ariz. 1978)....................................13

Pizarro v. Hoteles Concorde International, C.A.,

907 F.2d 1256 (1st Cir. 1990) ...............................8

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Prejean v. Sonatrach, Inc.,

652 F.2d 1260 (5th Cir. 1981) ...............................8

RAR, Inc. v. Turner Diesel, Ltd.,

107 F.3d 1272 (7th Cir. 1997) ....................... 10, 11

Robinson v. Harley-Davidson Motor Co.,

316 P.3d 287 (Ore. 2013) ......................................9

Shaffer v. Heitner,

433 U.S. 186 (1977) ...............................................7

Shoppers Food Warehouse v. Moreno,

746 A.2d 320 (D.C. 2000) ......................................9

Silverman v. Berkson,

661 A.2d 1266 (N.J. 1995) ..................................14

Southern Machine Co. v. Mohasco Industries, Inc.,

401 F.2d 374 (6th Cir. 1968) ...............................10

SPV Osus Ltd. v. UBS AG,

882 F.3d 333 (2d Cir. 2018) ................................10

Third National Bank in Nashville v. WEDGE

Group, Inc., 882 F.2d 1087 (6th Cir. 1989) .......10

uBID Inc. v. GoDaddy Group, Inc.,

623 F.3d 421 (7th Cir. 2010) .................................9

Vons Cos. v. Seabest Foods, Inc.,

926 P.2d 1085 (Cal. 1996) .....................................9

Walden v. Fiore,

571 U.S. 277 (2014) ...............................................2

World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286 (1980) ..................................... 3, 6, 10

v

TABLE OF AUTHORITIES—Continued

Page(s)

Other Authorities

Paul Nolette & Colin Provost, Change &

Continuity in the Role of State Attorneys

General in the Obama & Trump

Administrations,

28 J. of Federalism 469 (2018) ...........................12

1

BRIEF OF AMICUS CURIAE DRI–THE VOICE

OF THE DEFENSE BAR IN SUPPORT OF

PETITIONER

Amicus curiae, DRI–The Voice of the Defense

Bar, respectfully submits that the Petition for

Certiorari should be granted and the judgment of the

Supreme Judicial Court of Massachusetts should be

reversed.1

INTEREST OF THE AMICUS CURIAE

Amicus curiae DRI–The Voice of the Defense Bar

is an international organization of more than 22,000

attorneys involved in the defense of civil litigation.

DRI is committed to enhancing the skills, effectiveness, and professionalism of defense attorneys. In

furtherance of this commitment, DRI seeks to

promote the role of defense attorneys, to address

issues germane to defense attorneys and their

clients, and to improve the civil justice system. DRI

has long participated in the ongoing effort to make

the civil justice system fairer, more consistent, and

more efficient. To promote these objectives, DRI

participates as amicus curiae in cases that raise

issues important to its members, their clients, and

the judicial system. This is such a case.

1

In accordance with this Court’s Rule 37.6, amicus curiae

states that this brief was not authored in whole or in part by

counsel for any party, and that no person or entity other than

amicus curiae and its counsel made a monetary contribution to

the preparation or submission of this brief. All parties have

been timely notified of the filing of this brief, and both parties

have consented.

2

The issue in this case—the type of relationship

required between a plaintiff’s claims and a defendant’s contacts with a forum state to satisfy due

process—is a subject of fundamental importance to

DRI and the civil defense bar. The importance to

DRI and its members is only heightened by the

context in which the issue arises here: court-ordered

compliance with a state attorney general’s civil

investigative demand unrelated to the defendant’s

contacts with the forum state.

A state court’s assertion of personal jurisdiction

over nonresident defendants implicates the fairness

of the civil justice system, as this Court has

repeatedly noted. See Walden v. Fiore, 571 U.S. 277,

283 (2014) (quoting Int’l Shoe Co. v. Washington, 326

U.S. 310, 316 (1945)); Daimler AG v. Bauman, 571

U.S. 117, 126 (2014); Goodyear

Dunlop Tires

Operations, S.A. v. Brown, 564 U.S. 915, 918-19

(2011).

The “[d]ue process limits on the State’s

adjudicative authority” that promote this fairness

“principally protect the liberty of the defendant.”

Walden, 571 U.S. at 284. But restrictions on personal jurisdiction are also “a consequence of territorial

limitations on the power of the respective States.”

Hanson v. Denckla, 357 U.S. 235, 251 (1958).

The Supreme Judicial Court of Massachusetts’

decision tramples on Exxon Mobil’s liberty interests

and disregards the constitutional limits on state

court authority. That court enforced the Massachusetts Attorney General’s costly and intrusive civil

investigative demand because it concluded that the

Exxon Mobil’s franchise agreements with service

3

stations in Massachusetts were the but-for cause of

the Massachusetts Attorney General’s investigation.

It reached this conclusion even though the

investigation’s focus was on possible violations of

Massachusetts law stemming from a failure to

disclose the climate risks associated with burning

fossil fuels. App. 15a-16a. That nebulous connection

thwarts non-residents’ ability to “structure their

primary conduct with some minimum assurance as

to where that conduct will and will not render them

liable to suit.” World-Wide Volkswagen Corp. v.

Woodson, 444 U.S. 286, 297 (1980). And it flouts the

rule that an out-of-state resident is only subject to

the forum state’s judicial authority when “a

controversy is related to or ‘arises out of’ a

defendant’s contact with the forum.” Helicopteros

Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,

414 (1984).

The Massachusetts court’s but-for

approach to relatedness is so overinclusive as to be

no limit at all.

The context in which this case arises demonstrates the issue’s continued importance. Investigations by state attorneys general have been growing

in number and partisanship in recent years. The

coercive power of state attorneys general is formidable, and DRI’s members and their clients attest to

the disruption and expense associated with such

investigations. The limits on personal jurisdiction

imposed by the Due Process Clause provide a

significant check on the extra-territorial authority of

state law enforcement agencies, and are thus all the

more important to DRI, its constituents, and the

nation.

4

SUMMARY OF ARGUMENT

The Court should grant the Petition because the

purposes of the Due Process Clause are undermined

by the multiplicity of approaches to determining

whether a defendant’s contacts with a forum state

have a sufficient causal connection to the harm

suffered by a plaintiff to give rise to personal

jurisdiction. As the decision of the Supreme Judicial

Court of Massachusetts in this case and the

discussion below demonstrate, out-of-state residents

cannot have the minimum assurance as to where

their conduct will or will not render them liable to

suit in other states as required by the Constitution.

And this is all the more true in the context of prelitigation discovery by state attorneys general.

More than three decades ago, the Court

emphasized that personal jurisdiction requires more

than a showing that the defendant had sufficient

minimal contacts with the forum state. The Court

explained that constitutional due process also

requires that the plaintiff’s suit arises from or relate

to the defendant’s conduct. The Petitioner correctly

points out that the but-for relatedness test adopted

by the Supreme Judicial Court of Massachusetts has

been criticized and rejected by all but a handful of

state and federal courts because in hindsight, almost

any contact can be deemed to be a but-for cause

supporting a cause of action. But the confusion that

reigns among state and federal courts about what

level of relatedness is required by the Due Process

Clause is, if anything, understated by the Petition.

The federal courts of appeals have adopted no less

than four different approaches to relatedness, with

some courts adopting different standards in different

5

decisions without acknowledging the conflict. Indeed, the Sixth Circuit has seemingly adopted three

conflicting approaches. Nor has allowing the issue to

percolate in the state and lower federal courts

brought clarity—the conflict has only become more

entrenched with age.

The context in which the issue arises here

underlines the need for this Court’s review. State

attorneys general have become increasingly active in

pursuing investigations and actions against out-ofstate residents.

Such actions raise federalism

concerns as state attorneys general who seek to

make national policy are unaccountable to out-ofstate residents. The law of most states provides

attorneys general with wide-ranging power to

conduct pre-litigation discovery, as demonstrated by

the Massachusetts court’s decision requiring Exxon

Mobil to produce decades of information potentially

amounting to millions of pages with almost no

judicial oversight. In cases like this one, the only

real limitations on the power of state attorneys

general as to out-of-state residents is provided by the

Due Process Clause.

In 1991 and again last term, the Court heard

cases in which the issue of what level of relatedness

was required by the Due Process Clause was raised,

but in neither case was the issue squarely presented.

Here, the issue is squarely presented in a case where

requiring relatedness greater than but-for causation

is dispositive. Amicus respectfully submits that the

time has come for the Court to address this issue.

6

ARGUMENT

I. The Court should grant the Petition because

the question presented has plagued federal

and state courts, resulting in uneven application of critical Due Process Clause protections.

The requirement of personal jurisdiction protects

out-of-state residents from binding judgments in fora

with which they have no meaningful contacts.

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 47172 (1985). The Due Process Clause “gives a degree of

predictability to the legal system that allows

potential defendants to structure their primary

conduct with some minimum assurance as to where

that conduct will and will not render them liable to

suit.” World-Wide Volkswagen v. Woodson, 444 U.S.

286, 297 (1980). As the Petition demonstrates, this

due-process protection is being unevenly applied and

thus thwarted by the continued confusion in the

federal and state courts regarding what sort of

“affiliation between the forum and the underlying

controversy” must exist for a court to exercise

personal jurisdiction. See Goodyear Dunlop Tires

Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).

The Court specifically identified the need for a

connection between the controversy and a

defendant’s contacts with the forum state in

Helicopteros Nacionales de Colombia, S.A. v. Hall,

466 U.S. 408, 414-18 (1984). There, the Court

explained that its earlier decisions showed that when

“a controversy is related to or ‘arises out of’ a

defendant’s contact with the forum, . . . a

‘relationship among the defendant, the forum, and

the litigation’ is the essential foundation of in

personam jurisdiction.” Id. at 414 (quoting Shaffer v.

7

Heitner, 433 U.S. 186, 204 (1977)). But the Court

specifically reserved the question of “what sort of tie

between a cause of action and defendants’ contacts

with a forum is necessary.” Id. at 415 n.10.

The Court has not resolved the issue. It granted

certiorari on a question that raised this issue in

Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585,

589 (1991), but resolved the case on different

grounds. Last term, the Court rejected California’s

sliding-scale approach to relatedness. Bristol-Myers

Squibb Co. v. Superior Court of Cal., 137 S. Ct. 1773,

1781, 1784 (2017). But the case did not raise the

issue of what type of tie between a cause of action

and the defendants’ contacts with a forum is

constitutionally required.

In the nearly 35 years since Helicopteros, the

question of what level of relationship is necessary

“under the ‘arise out of or relate to’ requirement” has

“plagued” federal and state courts. Miller Yacht

Sales, Inc. v. Smith, 384 F.3d 93, 99-100 (3d Cir.

2004). It is frequently said that the federal and state

courts have adopted three divergent rules for

assessing relatedness. See, e.g., Myers v. Casino

Queen, Inc., 689 F.3d 904, 912-13 (8th Cir. 2012)

(discussing three tests); Employers Mut. Cas. Co. v.

Bartile Roofs, Inc., 618 F.2d 1153, 1161 (10th Cir.

2010) (same). The reality is even more anarchic.

Courts have adopted variations on the main tests

and used different terms to describe the same tests.

Indeed, some courts have applied different tests in

different cases (frequently without identifying the

conflict with earlier decisions).

The but-for relatedness test is the most readily

identifiable. As the Petitioner points out, the Ninth

Circuit, Massachusetts, and Washington all apply a

8

but-for test to assess the sufficiency of the connection

between the plaintiff’s claims and the defendant’s

contacts with the forum state. Pet. 13. This

approach had been applied by the Fifth and Sixth

Circuits, but both have since implemented other

approaches. Prejean v. Sonatrach, Inc., 652 F.2d

1260, 1270 n.21 (5th Cir. 1981); Lanier v. Am. Bd. of

Endodontics, 843 F.2d 901, 908-11 (6th Cir. 1988);

Moki Mac River Expeditions v. Drugg, 221 S.W.3d

569, 581 (Tex. 2007) (citing cases showing the Fifth

and Sixth Circuits’ movement away from the but-for

test).

As the Petition correctly notes, several courts

have concluded that something more than but-for

causation is required to support the relatedness

inquiry for personal jurisdiction. Pet. 14. The

second test is alternatively referred to as the

proximate-cause or substantive-relevance test.

O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312,

318-19 (3d Cir. 2007). This test “examines whether

any of the defendant’s contacts with the forum are

relevant to the merits of the plaintiff’s claim.” Id.

The test has been adopted in decisions by the First

and Sixth Circuits, as well as in various contract

disputes addressed by the Tenth Circuit. Beydoun v.

Wataniya Rest. Holding, Q.S.C., 768 F.3d 499, 50708 (6th Cir. 2014), Employers Mut., 618 F.3d at 1161

n.7; Pizarro v. Hoteles Concorde Int’l, C.A., 907 F.2d

1256, 1259 (1st Cir. 1990). And the Tenth Circuit

has said that it has not adopted a particular test

except in the context of contract disputes, suggesting

it might apply different personal jurisdiction

standards to different claims. See Employers Mut.,

618 F.3d at 1161 & n.7.

9

An intermediate test that resembles the

proximate-cause standard in many respects but uses

language adopted from but-for causation has also

arisen. This approach, dubbed the “but-for and

foreseeability of litigation test” by the Oregon

Supreme Court, applies a but-for test as a threshold

standard and then analyzes the defendant’s contacts

to objectively assess the foreseeability of the pending

litigation. Robinson v. Harley-Davidson Motor Co.,

316 P.3d 287, 298 (Ore. 2013). Variations on this

approach have been adopted by the Third, Seventh,

and Eleventh Circuits. Id. at 298-301 (discussing

O’Connor, 496 F.3d at 322-23; Oldfield v. Pueblo De

Bahia Lora, S.A., 558 F.3d 1210, 1223-24 (11th Cir.

2009)); uBID Inc. v. GoDaddy Grp., Inc., 623 F.3d

421, 430 (7th Cir. 2010).

Yet another frequently used relatedness test is

the substantial-connection or discernable-relationship test. See O’Connor, 496 F.3d at 319-20. The

sliding-scale approach adopted by California and

rejected by this Court last term was one variation on

this approach. See Vons Cos. v. Seabest Foods, Inc.,

926 P.2d 1085, 1094-99 (Cal. 1996); Bristol-Myers

Squibb Co. v. Superior Court, 377 P.3d 874, 878 (Cal.

2016) rev’d 137 S. Ct. 1773 (2017). But other

variations of this test have been adopted by Second

Circuit and District of Columbia courts. Chew v.

Dietrich, 143 F.3d 24, 29 (2d Cir. 1998) (where a

defendant has limited contacts, “it may be

appropriate” to require the plaintiff’s injury to be

proximately caused by the defendant’s contacts, but

where the defendant’s contacts are “more

substantial,” personal jurisdiction can exist in the

absence of proximate cause); Shoppers Food

Warehouse v. Moreno, 746 A.2d 320, 333-36 (D.C.

2000). The Second Circuit continues to apply its

10

version of the substantial-connection, even after this

Court’s decision in Bristol-Myers Squibb Co. v.

Superior Court of California, 137 S. Ct. 1773 (2017).

SPV Osus Ltd. v. UBS AG, 882 F.3d 333, 344 (2d Cir.

2018) (applying Chew).

The Sixth Circuit’s peripatetic implementation of

varying standards is a microcosm of the national

confusion in this area. It adopted a but-for standard.

Lanier, 843 F.2d at 908-11. Then it reiterated its

earlier standard, requiring that the cause of action

“‘have a substantial connection with the defendant’s

in-state activities.’” Third Nat’l Bank in Nashville v.

WEDGE Grp., Inc., 882 F.2d 1087, 1091 (6th Cir.

1989) (quoting Southern Machine Co. v. Mohasco

Indus., Inc., 401 F.2d 374, 384 n.27 (6th Cir. 1968)).

And most recently, the Sixth Circuit held that

proximate cause was necessary, albeit without

addressing its earlier decisions. Beydoun, 768 F.3d

at 507-08.

This Court has emphasized that the Due Process

Clause must be interpreted in such a way as to

provide “a degree of predictability to the legal

system” and thereby allow out-of-state individuals to

“structure their primary conduct with some minimum assurance as to where that conduct will and

will not render them liable to suit.” World-Wide

Volkswagen, 444 U.S. at 297. Due process should

ensure that out-of-state residents can go about their

business “confident that transactions in one context

will not come back to haunt them unexpectedly in

another.” RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d

1272, 1277-78 (7th Cir. 1997).

As the Petitioner explains, the splintering of the

relatedness standard has resulted in some defendants being subject to substantively different stan-

11

dards for personal jurisdiction in the same state

depending on the availability of a federal forum. Pet.

19 & n.7. That result cannot be squared with the

minimum requirements of due process identified by

this Court.

It may well be that the “line in this area will not

always be a bright one.” RAR, 107 F.3d at 1278. But

the line the Court has so far drawn is too faint to

serve the purposes of due process and has resulted in

a splintering of decisions on a national constitutional

standard. In the decades since Helicopteros, the

state and federal courts have not been able to

coalesce around a single, national relatedness

standard. The Court should grant the Petition to

resolve this long-standing constitutional dispute.

II. The Court should also grant the Petition

because constitutional personal jurisdiction

requirements are among the only boundaries on state attorneys general’s authority

to investigate out-of-state residents.

The context in which this case arises emphasizes

the importance of the due process limits on personal

jurisdiction. State attorneys general have been increasingly active in pursuing national policy goals

through multi-state and individual lawsuits. Indeed,

the Massachusetts Attorney General’s investigation

here arose in apparent collaboration with other state

attorneys general. See Pet. 5-6 (citing record). As

one commentator observed, the rise in state attorneys general’s activism has important implications

for democratic accountability and federalism. Paul

Nolette, State attorneys general are more and more

powerful. Is that a problem? Washington Post (Mar.

5, 2015) available at https://tinyurl.com/y7ndyefz.

12

Not least among these implications is the lessening

of democratic accountability—residents who are

affected by the investigations of another state’s

attorney general have little recourse. Id. The Due

Process Clause’s limits on personal jurisdiction

provide one of the few boundaries on the extraterritorial reach of state attorneys general.

State attorneys general have become much more

active, and their national activities are becoming

increasingly partisan. See Paul Nolette & Colin

Provost, Change & Continuity in the Role of State

Attorneys General in the Obama & Trump

Administrations, 28 J. of Federalism 469 (2018). To

be sure, the most partisan of this litigation activitism

involve challenges to the federal government. Id. at

471-72. But state attorneys general continue to

cooperatively pursue actions against businesses as

well. Id. at 480. Consumer-protection and healthcare-fraud actions tend to attract high levels of

bipartisan support, but environmental disputes like

this one are much more partisan. See id. at 471-79,

482-83. These broad, multi-state investigations often

result in broad civil investigative demands and

document subpoenas against out-of-state residents.

And as the Massachusetts court’s decision

demonstrates, state attorneys general can frequently

compel the production of vast quantities of

information, including highly confidential business

information, without any independent judicial

oversight as to the merits of the inquiry and minimal

oversight of the scope of the documentary demands.

Indeed, some states authorize the attorney general to

issue civil investigative demands with little, if any,

proof of wrongdoing. See, e.g., App. 35a-36a

(observing that the Massachusetts Attorney General

may initiate an investigation whenever “she believes

13

a person has engaged” in wrongdoing, without any

requirement that such a belief be “reasonable”

(emphasis in original)); Evans v. State, 963 P.2d 177,

182 (Utah 1998) (noting that the State can issue civil

investigative demands on less evidence than

required by the probable cause standard because

they are part of an investigation, not an enforcement

action); People ex rel. Babbitt v. Herndon, 581 P.2d

688, 692 (Ariz. 1978) (in challenge to the state

attorney general’s basis for a civil investigative

demand, the court could not weigh the veracity of the

attorney general’s allegations, but was required to

accept them as true).

This creates yet another problem. As this Court

has recognized, federal investigations can be

incredibly expensive to defend against, “so much so

that it eats up men’s substance. It can be time

consuming, clogging the processes of business. It can

become persecution when carried beyond reason.”

Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186,

213 (1946). The experience of Amicus’ members is

that state attorney general investigations bear those

same hallmarks. State attorney general investigations impose significant financial costs regardless of

whether the client cooperates with the investigation

or opposes it. Indeed, cooperation typically means

committing to being at the government’s disposal for

an indeterminate period. Investigations also have

other business consequences:

•

Loss of investor confidence: The United States

Attorney Manual acknowledges that protracted

government investigation can disrupt and depress

a company’s stock price. United States Attorney

Manual § 9-28.700, cmt. B. But an investigation

14

need not be protracted to have that effect – the

news of an investigation is frequently sufficient.

•

Customer uncertainty: Government investigations cast a pall over the perceived long-term

stability of the target with customers. Further,

business customers of the investigation’s target

may end the business relationship to avoid the

risk of being dragged into the investigation.

•

Talent flight: Investigations cause similar uncertainty in employees who may bolt to other

employers to avoid being drawn into the investigation or because of fears of their employer’s

demise.

The due process limitations on personal

jurisdiction are one of the only protections against

these expensive intrusions by out-of-state political

actors. Even these protections, however, are rarely

invoked and then with limited success by defendants.

See, e.g., Everdry Mktg. & Mgmt. v. Carter, 885

N.E.2d 6 (Ind. Ct. App. 2008); Jepsen v. Assured RX,

LLC, 2017 WL 6417819 (Conn. Super. Ct. Nov. 14,

2017); Silverman v. Berkson, 661 A.2d 1266 (N.J.

1995); American Dental Co-op v. Attorney Gen. of

State of N.Y., 514 N.Y.S.2d 228 (N.Y. App. Div.

1987).

The arguments made by the out-of-state

defendants in these cases and Exxon Mobil also

evoke the long-held understanding that personal

jurisdiction is “a consequence of territorial

limitations on the power of the respective States.”

Hanson v. Denckla, 357 U.S. 235, 251 (1958). This

federalism concern is of sufficient import that it can

be decisive in some cases. Bristol-Myers Squibb, 137

S. Ct. at 1780. And it is all the more important

15

where state attorneys general seek to impose their

police powers on out-of-state defendants, as is the

case here, which further emphasizes why the Court

should grant the Petition.

CONCLUSION

For the reasons given above, the Petition should

be granted and the judgment of the Supreme Judicial

Court of Massachusetts should be reversed.

Respectfully submitted,

JOHN F. KUPPENS

MATTHEW T. NELSON

President

Counsel of Record

DRI–THE VOICE OF THE ADAM T. RATLIFF

DEFENSE BAR

WARNER NORCROSS & JUDD LLP

55 West Monroe Street 900 Fifth Third Center

Chicago, IL 60603

111 Lyon Street N.W.

(615) 428-8638

Grand Rapids, MI 49503

john.kuppens@

(616) 752-2000

nelsonmullins.com

mnelson@wnj.com

Counsel for Amicus Curiae

October 11, 2018