Amicus Curiae Brief — Ford Motor Company, Petitioner v. Montana Eighth Judicial District Court, et al.

Nos. 19-368 and 19-369

IN THE

Supreme Court of the United States

FORD MOTOR COMPANY, Petitioner,

v.

MONTANA EIGHTH JUDICIAL DISTRICT COURT, et al.,

Respondents.

FORD MOTOR COMPANY, Petitioner,

v.

ADAM BANDEMER, Respondent.

On Writs of Certiorari

to the Supreme Court of Montana

and the Supreme Court of Minnesota

BRIEF FOR THE ALLIANCE FOR AUTOMOTIVE

INNOVATION AND GENERAL AVIATION

MANUFACTURERS ASSOCIATION AS AMICI

CURIAE IN SUPPORT OF PETITIONER

DARRYL M. WOO

GOODWIN PROCTER LLP

Three Embarcadero Center

San Francisco, CA 94111

(415) 733-6000

JAIME A. SANTOS

Counsel of Record

STEPHEN R. SHAW

GOODWIN PROCTER LLP

1900 N St., NW

Washington, DC 20036

jsantos@goodwinlaw.com

(202) 346-4000

Counsel for Amici Curiae

March 6, 2020

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE ...................... 1

SUMMARY OF THE ARGUMENT ........................... 3

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

I.

The decisions of the Minnesota and

Montana Supreme Courts erase the

clear line between general and specific

personal jurisdiction. ................................... 6

II.

This Court should reject respondents’

unlimited stream-of-commerce theory. ..... 12

III.

Respondents’ no-causation rule will

create massive uncertainty and

increase litigation over threshold

jurisdictional issues. .................................. 22

IV.

Respondents’ rule would have a

particularly pernicious impact on

foreign manufacturers. .............................. 24

CONCLUSION ......................................................... 29

i

TABLE OF AUTHORITIES

Page(s)

Cases

Bristol-Myers Squibb Co. v. Superior Court of

Cal.,

137 S. Ct. 1773 (2017) ...................................passim

Burger King Corp. v. Rudzewicz,

471 U.S. 462 (1985) .......................................... 6, 12

Daimler AG v. Bauman,

571 U.S. 117 (2014) .................. 2, 5, 7, 8, 12, 26, 27

D’Jamoos ex rel. Estate of Weingeroff v.

Pilatus Aircraft Ltd.,

566 F.3d 94 (3d Cir. 2009) ....... 2, 16, 17, 18, 20, 21

Goodyear Dunlop Tires Operations, S.A. v.

Brown,

564 U.S. 915 (2011) ........................................ 6, 7, 8

Helicopteros Nacionales de Colombia, S.A. v.

Hall,

466 U.S. 408 (1984) .................................... 8, 11, 26

Int’l Shoe Co. v. Washington,

326 U.S. 310 (1945) ........................................ 6, 7, 8

J. McIntyre Mach., Ltd. v. Nicastro,

564 U.S. 873 (2011) .............................. 5, 13, 14, 20

Montgomery v. Airbus Helicopters, Inc.,

414 P.3d 824 (Okla. 2018)...................................... 2

Societe Nationale Industrielle Aerospatiale v.

U.S. Dist. Court for S. Dist. of Iowa,

482 U.S. 522 (1987) .............................................. 27

Walden v. Fiore,

571 U.S. 277 (2014) .......................... 6, 7, 11, 19, 20

World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286 (1980) ...................... 15, 19, 20, 21, 22

Other Authorities

14 C.F.R. pt. 21, subpt. D .......................................... 18

Joshua B. Arons, Tesla’s Right to Rise,

44 Transp. L.J. 133 (2017) ................................... 19

Associated Press, Driving an Older Car? You’re

Not Alone. Average Vehicle Age Sets a

Record, Autoblog (June 27, 2019, 8:30 a.m.),

https://www.autoblog.com/2019/06/27/recordaverage-age-cars-on-road/ .................................... 15

Julie Blackley, Longest-Lasting Cars to

Reach 200,000 Miles and Beyond,

iSeeCars (last visited Mar. 5, 2019),

https://www.iseecars.com/longest-lastingcars-study ............................................................. 16

Gerald R. Bodisch, Economic Effects of State

Bans on Direct Manufacturer Sales to Car

Buyers, Economic Analysis Group (May

2009), https://www.justice.gov/atr/economiceffects-state-bans-direct-manufacturersales-car-buyers ................................................... 19

Mark Cooper, Bringing New Auto Sales and

Service into the 21st Century, Consumer

Fed’n of Am. (Oct. 2002), https://consumer

fed.org/pdfs/InternetAutos102902.pdf ................ 19

General Aviation Manufacturers Association,

2019 Databook (Feb. 2020), https://gama.aero

/wp-content/uploads/GAMA _2019Databook_

ForWebFinal-2020-02-19.pdf ............................... 16

Geoffrey C. Hazard, Jr., Discovery and the Role

of the Judge in Civil Law Jurisdictions, 73

Notre Dame L. Rev. 1017 (1998) ......................... 27

Information Collection for Importation of OnHighway Vehicles and Motorcycles and

Nonroad Engines, Vehicles, and Equipment,

84 Fed. Reg. 63,653 (Nov. 18, 2019) .................... 25

Office of Transp. & Mach., U.S. Dep’t of

Commerce, U.S. Imports of Used Passenger

Vehicles Imports, Value and Units,

https://legacy.trade.gov/td/otm/assets/auto/

Used_Passenger_Imports.pdf (last visited

Mar. 6, 2020) ........................................................ 25

Purchase Planning Handbook, Business &

Commercial Aviation (May 2017),

http://assets.penton.com/digitaleditions/B

CA/BCA_201705.pdf ............................................ 16

Michael Schultz et al., U.S. Consumer & Economic Impacts of U.S. Automotive Trade Policies, Ctr. for Auto. Research (Feb. 2019),

https://www.cargroup.org/wp-content/uploads/2019/02/US-Consumer-Economic-Impacts-of-US-Automotive-Trade-Policies-.pdf....... 24

U.S. Dep’t of Commerce, The U.S. Litigation

Environment and Foreign Direct Investment:

Supporting U.S. Competitiveness by Reducing

Legal Costs and Uncertainty,

https://legacy.trade.gov/investamerica/Litiga

tion_FDI.pdf (Oct. 2008) ...................................... 28

U.S. EPA, Independent Commercial Importers

(ICIs), https://www.epa.gov/importing-vehiclesand-engines/independent-commercialimporters-icis (last visited Mar. 6, 2020) ............ 25

2 Waller, Antitrust & Am. Bus. Abroad

(4th ed. 2018)........................................................ 27

INTEREST OF THE AMICI CURIAE

The Alliance for Automotive Innovation (Auto Innovators) is the leading advocacy group for the auto

industry, representing 35 automobile manufacturers

and value chain partners who together produce nearly

99 percent of all light-duty vehicles sold in the United

States. 1 The members of Auto Innovators include (alphabetically) Aptiv PLC, Aston Martin, Robert Bosch

LLC, BMW Group, Byton, Cruise LLC, DENSO, Fiat

Chrysler Automobiles, Ferrari S.p.A., Ford Motor

Company, General Motors Company, Honda Motor

Company, Hyundai Motor America, Isuzu Motors

Ltd., Jaguar Land Rover, Karma Automotive, Kia Motors, Local Motors, Maserati, Mazda Motor Corporation, McLaren Automotive, Mercedes-Benz USA,

Mitsubishi Motors, Nissan Motor Company, NXP

Semiconductors, Panasonic Corporation, Porsche,

PSA North America, SiriusXM, Subaru, Suzuki,

Texas Instruments, Toyota Motor Company,

Volkswagen Group of America, and Volvo Car USA.

The General Aviation Manufacturers Association

(GAMA) is an international trade association representing over 120 of the world’s leading manufacturers

of general aviation aircraft, engines, avionics, and

components, as well as operators of maintenance facilities, fixed-base operators, aircraft fleets, and pilot

and technician training facilities. Throughout its

fifty-year history, GAMA has been dedicated to

1 The parties consented to the filing of this brief.

No counsel for

a party authored any part of this brief; no party or party’s counsel

made a monetary contribution intended to fund the preparation

or submission of this brief; and no person other than amici curiae, its members, or its counsel made a monetary contribution

to the brief’s preparation or submission.

2

fostering and advancing the welfare, safety, interests,

and activities of the global general aviation industry.

General aviation encompasses all civilian flying except scheduled commercial transport and includes

business travel, medical transport, aerial firefighting,

law enforcement, flight training, aerial agricultural

services, surveying, and search and rescue. GAMA’s

members make nearly all of the general aviation aircraft flying today, from small, single-engine propeller

plans to large jets to twin-turbine helicopters.

Automobile and general aviation manufacturers

are responsible for billions in economic outputs and

millions of jobs in the United States; moreover, they

are essential to the country’s transportation infrastructure. Amici aim to protect and promote the legal

and policy interests of its members and frequently file

amicus curiae briefs in cases such as this one that are

important to the automobile and aviation industries.

See, e.g., Avco Corp. v. Sikkelee, No. 18-1140 (U.S.);

Daimler AG v. Bauman, 571 U.S. 117 (2014).

Amici’s members include global companies that design, manufacture, and sell vehicles in various parts

of the country—indeed, the world. Because vehicles

like cars, trucks, and aircraft are durable and easily

portable by design, amici’s members frequently face

product litigation in forums throughout the United

States. Like Ford’s cases before this Court, specific

personal jurisdiction is a significant and recurring

question in vehicle accident litigation. See also, e.g.,

D’Jamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94 (3d Cir. 2009); Montgomery v.

Airbus Helicopters, Inc., 414 P.3d 824 (Okla. 2018).

The question presented is therefore of significant importance to amici’s members. Amici therefore write to

3

emphasize the potential impacts of the Court’s resolution of this question on the broader automotive industry (including foreign manufacturers) and beyond.

SUMMARY OF THE ARGUMENT

Specific personal jurisdiction cannot exist where

the “conduct giving rise” to the plaintiff’s claims occurred outside of the forum State. Bristol-Myers

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

1782 (2017) (“BMS”). That is what puts the “specific”

in “specific personal jurisdiction.” If this due-process

requirement means anything, it must mean that a

plaintiff may not hale a nonresident defendant into

court for its out-of-state conduct, based on forum contacts that are irrelevant to her claims.

But the Montana and Minnesota Supreme Courts

held exactly the opposite. Both courts acknowledged

that the plaintiffs’ design-defect claims against Ford

are based on out-of-state conduct—the plaintiffs’ vehicles were not designed, manufactured, or sold in these

States, and the only reason the vehicles ended up in

these States was through the unilateral decisions of

individuals who had purchased the vehicles “used” a

decade or more after the vehicles were initially manufactured and sold. But they concluded that Montana

and Minnesota courts could exercise jurisdiction over

Ford as a result of other contacts Ford had with those

States, such as advertising activities and the existence of Ford-franchised dealerships that had sold

other vehicles to non-parties in those States. Thus,

under a specific personal jurisdiction analysis, they

incorrectly held that the courts of these States could

adjudicate claims that would be exactly the same even

if the defendant’s forum activities had never occurred.

4

This error is of substantial importance to business,

particularly industries like amici’s. The no-causation

standard adopted by Montana and Minnesota exposes

automotive and general aviation manufacturers, as

well as other companies that manufacture durable

and easily movable products, to nationwide specific

personal jurisdiction on the basis of generalized connections they share with each and every State in the

country. These decisions erase the clear line that this

Court has maintained between general and specific

personal jurisdiction, eviscerating the due-process

protections on which the latter is premised. A core

principle driving specific personal jurisdiction is that

defendants’ own voluntary, affirmative actions directed at the forum and the lawsuit are what render

them liable to suit. The approach adopted by Montana and Minnesota upends this Court’s precedents

and puts plaintiffs in the personal-jurisdiction driver’s

seat.

Just as troubling, the no-causation, stream-of-commerce standard advocated by respondents creates

more questions than it provides answers, particularly

for long-life products, like automobiles and aircraft,

that are sold and resold for decades. If independent

dealers and general connections (like advertising and

sales), coupled with a mere expectation of in-state use,

are sufficient to confer jurisdiction over product-liability claims, are those connections assessed as of the

time of design and manufacture (which may have occurred over 30 years earlier), the time of plaintiffs’ injury, or the time the lawsuit was filed? How pervasive

must these contacts be and what types are sufficient?

Would nationwide advertising that happens to appear

in the State be enough? Attendance at in-state trade

5

shows? Sending federally mandated safety information to an aircraft owner wherever she happens to

live? And would relevant advertisements and sales be

limited to the product that is the subject of the product-liability lawsuit, or merely similar (or even dissimilar) products?

If respondents’ standard is adopted, these complicated questions will occupy state and federal courts

for decades, creating the very unpredictability the

personal-jurisdiction requirement is supposed to

avoid. This unpredictability is particularly acute for

foreign defendants. Under respondents’ rule, a plaintiff could force a foreign company to answer product

claims in U.S. courts so long as the plaintiff can identify some U.S. conduct by the defendant that is peripherally related to that product—even if the U.S. conduct had no impact whatsoever on the plaintiff’s

claims and even if the foreign company’s product entered the United States through the unilateral decision of a consumer or importer. That cannot be right.

As this Court has repeatedly emphasized, jurisdiction

over foreign entities must be grounded in their specific

activities related to the suit at issue and not generalized activities incidentally affecting the forum. See J.

McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 88687 (2011) (plurality opinion); Daimler AG v. Bauman,

571 U.S. 117, 127 (2014). Under principles of interstate federalism, this constitutional limit on a State’s

exercise of jurisdiction must stand even if the State

“has a strong interest in applying its law to the controversy” and “is the most convenient location for litigation.” BMS, 137 S. Ct. at 1780-81 (citation omitted).

This Court should reverse the judgments below, reaffirm these longstanding principles (most recently

6

reiterated in BMS), and hold that specific personal jurisdiction requires a causal link between a defendant’s

forum contacts and a plaintiff’s specific claims.

ARGUMENT

I.

The Decisions of the Minnesota and Montana Supreme Courts Erase the Clear

Line Between General and Specific Personal Jurisdiction.

The Due Process Clause “sets the outer boundaries

of a state tribunal’s authority to proceed against a defendant,” permitting States to exercise personal jurisdiction only where the defendant has “certain minimum contacts with [the State] such that the maintenance of the suit does not offend ‘traditional notions of

fair play and substantial justice.’” Goodyear Dunlop

Tires Operations, S.A. v. Brown, 564 U.S. 915, 923

(2011) (quoting Int’l Shoe Co. v. Washington, 326 U.S.

310, 316 (1945)). The relationship between a defendant and a State “must arise out of contacts that the

‘defendant himself’ creates with the forum,” because

“[d]ue process limits on the State’s adjudicative authority principally protect the liberty of the nonresident defendant—not the convenience of plaintiffs or

third parties.” Walden v. Fiore, 571 U.S. 277, 284

(2014) (quoting Burger King Corp. v. Rudzewicz, 471

U.S. 462, 475 (1985)).

This Court has recognized two varieties of personal

jurisdiction: “‘general’ (sometimes called ‘all-purpose’)

jurisdiction and ‘specific’ (sometimes called ‘caselinked’) jurisdiction.” BMS, 137 S. Ct. at 1780 (citation omitted). General jurisdiction derives from the

nature of the overall relationship between the

7

defendant and the State based on “continuous and

systematic” connections rising to the level of being “at

home” in the jurisdiction, Daimler, 571 U.S. at 137-38;

it enables a State to exercise jurisdiction over a defendant independent of any connection between the

defendant’s forum-related contacts and the suit at issue, Int’l Shoe, 326 U.S. at 317.

Specific jurisdiction, however, is predicated on an

“affiliatio[n] between the forum and the underlying

controversy,” and it primarily relies on suit-related

conduct that occurred in or was directed toward the

forum State. Goodyear, 564 U.S. at 919 (citation omitted). Specific jurisdiction “focuses on ‘the relationship

among the defendant, the forum, and the litigation,’”

with particular attention paid to “the defendant’s suitrelated conduct.” Walden, 571 U.S. at 284 (citation

omitted).

Courts have occasionally blended these disparate

doctrines into a hybrid analysis that allows them to

exercise jurisdiction over a defendant when neither

the general nor specific jurisdictional requirement is

satisfied. Just as often, this Court has rejected these

attempts, insisting on a clear demarcation between

general and specific jurisdiction. In Goodyear Dunlop

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

for example, this Court rejected a North Carolina

court’s approach that “[c]onfus[ed] or blend[ed] general and specific jurisdictional inquiries.” Id. at 91920. Even more recently, in BMS, this Court considered the California Supreme Court’s application of a

“sliding scale approach” to specific jurisdiction

whereby “the more wide ranging the defendant’s forum contacts, the more readily is shown a connection

between the forum contacts and the claim.” 137 S. Ct.

8

at 1778 (citation omitted). This Court categorically

rejected such an approach, calling it “a loose and spurious form of general jurisdiction” with “no support” in

the Court’s cases. Id. at 1781. Similarly, this Court

has expressed serious concern with any personal-jurisdiction test that would create “all-purpose jurisdiction” in any State in which a defendant sells a significant number of products. Daimler, 571 U.S. at 139.

In short, this Court has consistently maintained a

clear line between general and specific bases for personal jurisdiction. For general jurisdiction, a defendant’s general contacts with a forum State are relevant,

but they must be so continuous and systematic that

the defendant can be deemed “at home” there. Id. at

137. For specific jurisdiction, a defendant’s activities

within the forum State are relevant only if the causes

of action asserted in the complaint arise out of or relate to those activities. Goodyear, 564 U.S. at 923

(specific personal jurisdiction exists “where the corporation’s in-state activity is ‘continuous and systematic’

and that activity gave rise to the episode-in-suit” (citation omitted)); Daimler, 571 U.S. at 127 (in-state activities “may sometimes be enough to subject the corporation to jurisdiction in that State’s tribunals with

respect to suits relating to that in-state activity” (citation omitted)); Int’l Shoe, 326 U.S. at 320 (personal jurisdiction existed because the defendant engaged in

in-state activities, and “[t]he obligation which is here

sued upon arose out of those very activities”). Thus,

as this Court has explained, “even regularly occurring

sales of a product in a State do not justify the exercise

of jurisdiction over a claim unrelated to those sales.”

Goodyear, 564 U.S. at 930 n.6 (emphasis added); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466

9

U.S. 408, 418 (1984) (“mere purchases, even if occurring at regular intervals, are not enough to warrant a

State’s assertion of in personam jurisdiction over a

nonresident corporation in a cause of action not related to those purchase transactions” (emphasis

added)).

Here, all parties agree that Ford is not subject to

general jurisdiction in Montana or Minnesota. The

plaintiffs’ lawsuits are based on alleged defects in the

design or manufacture of their Ford vehicles. But

Ford did not design the plaintiffs’ vehicles in Montana

or Minnesota, manufacture the plaintiffs’ vehicles in

Montana or Minnesota, or even sell the plaintiffs’ vehicles in Montana or Minnesota. Nevertheless, the

Montana and Minnesota Supreme Courts held that

despite the cases being about the design and manufacture of the vehicles, the state courts could exercise

specific personal jurisdiction over Ford in these lawsuits because Ford sold other vehicles to other individuals, advertised in those States, partnered with dealerships in those States, offered repair or replacement

services in those States, and could reasonably have

foreseen its products being used in those States. 19368 Pet. App. 11a-12a, 16a-17a, 19a-20a; 19-369 Pet.

App. 9a-10a, 16a-17a.

The state high courts considered Ford’s forum activities sufficient to exercise specific personal jurisdiction even though those activities did not give rise to

the plaintiffs’ claims and the plaintiffs would have experienced the exact same injuries had Ford not engaged in any of those activities in Montana or Minnesota. This approach is similar to a general personaljurisdiction analysis, but without the critical due-process-protecting requirement that the defendant’s

10

forum-related contacts are so systematic and continuous that the defendant can be considered at home

there and thus can reasonably be expected to be haled

into court there for any dispute that arises.

By basing the exercise of personal jurisdiction on

acts for which there is no nexus to the claims, these

decisions resemble the sliding-scale approach that

this Court expressly rejected in BMS, 137 S. Ct. 1773.

There, California residents and nonresidents sued

Bristol-Myers Squibb in California, alleging that the

company’s drug Plavix had injured them. The company had research and laboratory facilities in California, employed hundreds of employees and sales representatives there, and sold 187 million Plavix pills in

the State. Applying the principle that “the more wide

ranging the defendant’s forum contacts, the more

readily is shown a connection between the forum contacts and the claim,” the court held that the company’s

“extensive contacts with California” warranted exercising jurisdiction over all of the plaintiffs’ claims. Id.

at 1778-79 (citations omitted). In particular, the court

relied upon the similarity of the residents’ and nonresidents’ claims, as they were “based on the same allegedly defective product and the assertedly misleading marketing and promotion of that product.” Id. at

1779 (citation omitted).

This Court rejected the California Supreme

Court’s approach, calling it a “loose and spurious form

of general jurisdiction. For specific jurisdiction, a defendant’s general connections with the forum are not

enough.” Id. at 1781. The Court stated that “[t]he

mere fact that other plaintiffs were prescribed, obtained, and ingested Plavix in California—and allegedly sustained the same injuries as did the

11

nonresidents”— did not allow plaintiffs whose claims

did not arise as a result of the defendant’s Californiarelated activities to sue Bristol-Myers Squibb in the

State because “a defendant’s relationship with a . . .

third party, standing alone, is an insufficient basis for

jurisdiction.” Id. (quoting Walden, 571 U.S. at 286).

The same is true here. Just as Bristol-Myers

Squibb’s sales of 187 million Plavix pills in California

did not permit every plaintiff to sue the company

there, Ford’s sales of similar—or even identical—vehicles to other Montana and Minnesota residents does

not mean that Ford can be haled into court there to

litigate claims over vehicles that the company sold in

Washington and North Dakota.

The Montana and Minnesota Supreme Courts both

said that BMS was distinguishable because the nonresident plaintiffs in BMS neither used nor were injured by Plavix in California, whereas here, the allegedly defective vehicles were used and caused injuries

in Montana and Minnesota. 19-368 Pet. App. 18a; 19369 Pet. App. 17a. But that disregards this Court’s

instruction that “mere injury to a forum resident” is

not enough. Walden, 571 U.S. at 290. That is because

a plaintiff’s or third party’s “unilateral” actions connecting the dispute to the forum are “not an appropriate consideration” when considering whether personal

jurisdiction exists over a defendant. Helicopteros, 466

U.S. at 417. This due-process limitation on a forum

State’s jurisdiction exists to protect defendants’

rights, not plaintiffs’. See Walden, 571 U.S. at 285

(“Put simply, however significant the plaintiff’s contacts with the forum may be, those contacts cannot be

‘decisive in determining whether the defendant’s due

process rights are violated.’” (citation omitted)).

12

The vehicles at issue in this case ended up in Montana and Minnesota not because of any action by Ford,

but because subsequent owners decided to move there

more than a decade after Ford sold the vehicles in

Washington and North Dakota. Because third parties, and not Ford, are responsible for the presence of

these vehicles in Montana and Minnesota, the fact

that the vehicles were used in these States cannot be

a jurisdictionally relevant contact with respect to

claims based on Ford’s out-of-state conduct.

The rule embraced by the Montana and Minnesota

Supreme Courts exposes manufacturers to jurisdiction based on actions that are entirely out of their control—consumers’ unilateral decisions about where to

transport products they purchase. It allows plaintiffs

whose claims are not based on a defendant’s in-state

contacts to piggyback off of the personal jurisdiction

that other plaintiffs might have, which is precisely

what BMS forbids. 137 S. Ct. at 1781. And because

it does not permit defendants “to structure their primary conduct with some minimum assurance as to

where that conduct will and will not render them liable to suit,” it creates precisely the type of nationwide

“all-purpose” jurisdiction that this Court has repeatedly eschewed. Daimler, 571 U.S. at 139 (quoting

Burger King, 471 U.S. at 472).

II.

This Court Should Reject Respondents’

Unlimited Stream-of-Commerce Theory.

Respondents’ no-causation test leans heavily upon

a stream-of-commerce theory of specific personal jurisdiction. Gullett Br. in Opp. 1, 3, 5, 6, 7, 8, 9, 10, 11,

14, 16, 17, 21, 22, 24. But this Court rejected this very

theory—or, as a plurality called it, this “metaphor”—

13

less than ten years ago in J. McIntyre Machinery, Ltd.

v. Nicastro, 564 U.S. 873, 886 (2011) (plurality opinion); see also id. at 889 (Breyer, J., concurring in the

judgment).

A. In J. McIntyre, a New Jersey resident was injured in New Jersey by a metal-shearing machine

manufactured in England. Id. at 878 (plurality opinion). The manufacturer (J. McIntyre) had engaged an

independent U.S. distributor to sell its machines in

the United States and did not directly sell its machines to buyers in this country. Id.

The New Jersey Supreme Court allowed suit in

New Jersey, relying on a hodgepodge of contacts with

no causal relationship to the plaintiffs’ claims to conclude that the “stream-of-commerce doctrine of jurisdiction” warranted calling J. McIntyre into New Jersey courts. Id. at 879 (citation omitted). Although the

New Jersey Supreme Court noted that it could “not

find that J. McIntyre had a presence or minimum contacts in this State . . . that would justify a New Jersey

court to exercise jurisdiction in this case,” it held that

personal jurisdiction was appropriate because J.

McIntyre “knew or reasonably should have known

that its products are distributed through a nationwide

distribution system that might lead to those products

being sold in any of the fifty states” and “failed to take

some reasonable step to prevent the distribution of its

products in [New Jersey].” Id. at 879, 886 (quotation

marks omitted).

This Court reversed, with six Justices rejecting the

stream-of-commerce argument advanced by the plaintiff. A plurality of the Court reaffirmed the “general

rule” that “the exercise of judicial power is not lawful

14

unless the defendant purposefully avails itself of the

privilege of conducting activities within the forum

State” and concluded that “the so-called ‘stream-ofcommerce’ doctrine cannot displace it.” Id. at 877-78

(plurality opinion) (citation and internal quotation

marks omitted). The plurality criticized the “deficiencies” of the malleable “stream of commerce” metaphor

and clarified that “[a] defendant’s actions, not his expectations, empower a State’s courts to subject him to

judgment.” Id. at 881, 883. Likewise, Justice Breyer,

joined by Justice Alito, noted in his concurring opinion

the Court’s longstanding skepticism about the notion

that placing one’s goods in the stream of commerce,

“fully aware (and hoping) that . . . a sale will take

place,” can constitute an adequate basis for jurisdiction. Id. at 888-89.

Respondents, however, would look to reprise the

stream-of-commerce theory as an independent basis

for personal jurisdiction—a position other courts have

rightly rejected. Under respondents’ theory, a defendant with some forum contacts can be subject to specific

personal jurisdiction by simply delivering its products

into the stream of commerce and manifesting a desire

or intention to reach consumers in any particular

State—even if the defendant’s forum contacts have no

relationship to the plaintiff’s specific claims. Gullett

Br. in Opp. 3, 5, 8. Indeed, both Ford vehicles in this

case were sold to respondents not by Ford or even an

independent Ford dealership, but on the used-vehicle

market (after being sold and resold four or five times).

Thus, not only were their design-defect claims not

causally related to any forum activities by Ford, the

purchase of their vehicles was not even causally related to any forum activities by Ford.

Under

15

respondents’ theory, however, taking actions to

“serv[e] a particular forum” is sufficient to confer specific personal jurisdiction over any product-litigation

claims that a plaintiff might want to assert as long as

a plaintiff happened to bring her vehicle (sold elsewhere) to that forum. Id. at 3. That theory deletes

the arise-out-of-or-relate-to requirement entirely in

favor of a purposeful-availment-only test.

B. If the stream-of-commerce “metaphor” has any

continuing viability, it is certainly not as an independent source of specific personal jurisdiction. At most, it

should be limited to allowing specific personal jurisdiction in the forum where the defendant places the

relevant product into the stream of commerce—not anywhere the product might end up, even years (or decades) down the line. The experience of automobile and

general aviation manufacturers demonstrates why.

Automobiles and aircraft are uniquely durable and

inherently mobile. As this Court has recognized, “the

very purpose of an automobile is to travel”; vehicles

frequently cross state lines with no notice given to

their manufacturers. World-Wide Volkswagen Corp.

v. Woodson, 444 U.S. 286, 298 (1980). And they do so

for decades: the average age of cars and light trucks

in this country exceeds 11 years, 2 and if properly

maintained, vehicles can easily last 200,000 miles or

2 Associated Press, Driving an Older Car?

You’re Not Alone. Average Vehicle Age Sets a Record, Autoblog (June 27, 2019, 8:30

a.m.), https://www.autoblog.com/2019/06/27/record-average-agecars-on-road/.

16

more. 3 The same is true for aircraft. The average age

of a single-engine piston aircraft is 46.8 years; for a

multi-engine piston aircraft, the average age is 44.7

years old; and the average age of the entire U.S. general aviation fleet is 38.1 years. 4 General aviation aircraft fly over 25.5 million flight hours annually. 5

Some small, single-engine piston aircraft can fly over

500 nautical miles in one flight; a jet may traverse the

entire country in a single flight over the course of a

few hours. 6

Moreover, both automobiles and aircraft are frequently sold second-hand, third-hand, and even

fourth-hand by private individuals or dealers unaffiliated with the manufacturer and even in a different

country than the product was manufactured or originally sold. The Third Circuit’s decision in D’Jamoos

ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566

F.3d 94 (2009), provides a useful illustration. There,

a plaintiff filed a product-liability lawsuit in Pennsylvania against the aircraft manufacturer, a Swiss company. Id. at 99. The aircraft had been designed and

manufactured in Switzerland and originally sold to a

French buyer, which resold it to another Swiss company, which resold it to a Massachusetts company,

which imported the plane into the United States and

3 Julie Blackley, Longest-Lasting Cars to Reach 200,000 Miles

and Beyond, iSeeCars (last visited Mar. 5, 2019),

https://www.iseecars.com/longest-lasting-cars-study.

4 General Aviation Manufacturers Association, 2019 Databook 25

(Feb. 2020), https://gama.aero/wp-content/uploads/GAMA _2019

Databook_ForWebFinal-2020-02-19.pdf (“GAMA Databook”).

5 GAMA Databook 20.

6 See, e.g., Purchase Planning Handbook 83, 94, Business & Commercial Aviation (May 2017), http://assets.penton.com/digitaleditions/BCA/BCA_201705.pdf.

17

sold it to a Rhode Island company. Id. The aircraft

was flown to Pennsylvania, where it tragically

crashed. Id. at 98.

Ford’s cases are similar. The two vehicles at issue

in these cases were 21 and 19 years old, respectively,

at the time they crashed. 19-368 Pet. App. 3a; 19-369

Pet. App. 3a. Both vehicles had been resold without

the manufacturers’ involvement, and brought into the

forum States by individuals who were not the original

purchasers of the vehicles and who were not the plaintiffs in either of these actions. 19-368 Pet. App. 24a;

19-369 Pet. App. 25a. And while the Montana and

Minnesota Supreme Courts suggested that jurisdiction was not the result of the plaintiffs’ unilateral decisions but rather Ford’s general in-state contacts, all

of the contacts between Ford and the forum States

that the Montana and Minnesota Supreme Courts relied upon to support specific personal jurisdiction are

present in exactly the same way in virtually every

State in the country, which means that the approach

taken by these courts would subject manufacturers

like Ford to “all-purpose” jurisdiction nationwide.

First, the courts noted that Ford sold vehicles and

parts in Minnesota and Montana, including the types

of vehicles at issue in these cases. 19-368 Pet. App.

12a, 17a, 19a; 19-369 Pet. App. 4a, 9a-10a. But there

are no local or regional automobile or aviation manufacturers in the United States. And this Court has

already stated that even millions of in-state sales do

not permit jurisdiction over manufacturers with respect to claims about even identical products the manufacturers sold elsewhere. See BMS, 137 S. Ct. at

1778, 1781-82. Thus, Ford’s sales of other vehicles

18

simply cannot justify the exercise of specific personal

jurisdiction over claims unrelated to those sales. 7

Second, the courts emphasized that Ford engaged

in regional and national marketing campaigns that

reach Minnesota and Montana residents. 19-368 Pet.

App. 11a, 17a, 29a-30a; 19-369 Pet. App. 4a, 9a, 10a,

17a. But even putting aside that the plaintiffs’ claims

did not arise from nor were related to Ford’s advertising, these same facts exist in every other State too.

Automobile and aviation manufacturers typically issue nationwide and regional advertisements across

the country because they distribute vehicles in every

State. And this Court has rejected efforts to premise

personal jurisdiction on these types of nationwide advertising efforts—even where the plaintiffs asserted

misleading-advertising claims. See BMS, 137 S. Ct.

at 1778; id. at 1784, 1786 (Sotomayor, J., dissenting).

Third, the courts focused on the existence of Ford

dealerships and certified mechanics in Montana and

Minnesota. 19-368 Pet. App. 11a, 12a; 19-369 Pet.

App. 4a, 9a, 16a-17a. But the courts’ reliance on instate Ford dealerships ignores that these dealerships

are independently owned and operated by franchisees.

Virtually every State in America prohibits automobile

manufacturers with franchisees from engaging in

7 Indeed, the courts’ erroneous analysis is particularly problematic for intensely regulated industries like amici’s. As the court

in Pilatus noted, aircraft are designed pursuant to federal design

standards, 566 F.3d at 103, which cannot be changed without

further federal approvals, see 14 C.F.R. pt. 21, subpt. D. Similarly, even without pre-market approval requirements, automotive vehicles are subject to extensive regulation, resulting in the

same product being sold in other states.

19

direct-to-consumer automobile sales. 8 Moreover, this

Court has repeatedly held that “a defendant’s relationship with a . . . third party, standing alone, is an

insufficient basis for jurisdiction,” Walden, 571 U.S. at

286; see BMS, 137 S. Ct. at 1783 (Bristol-Myers

Squibb’s relationship with an in-state pharmaceutical

distributor was not sufficient to establish specific personal jurisdiction in California). Thus, a vehicle manufacturer’s affiliation with non-parties (such as mechanics or dealerships) is simply irrelevant to the personal-jurisdiction analysis.

Fourth, the Montana and Minnesota Supreme

Courts relied heavily upon the foreseeability that the

plaintiffs’ vehicles could have been brought to these

States and Ford’s expectation that residents of these

States will purchase Ford vehicles. See 19-368 Pet.

App. 16a; id. at 13a & n.4, 17a; 19-369 Pet. App. 9a10a, 17a. But these vehicles reached Montana and

Minnesota through no act of Ford’s, and this Court

has previously expressed serious concern with any jurisdictional test that would allow personal jurisdiction

in a product-liability case to follow the product itself,

rather than hinge on the defendant’s contacts with the

forum State related to the specific claims at issue. As

the Court put it in World-Wide Volkswagen, “If

8 See Mark Cooper, Bringing New Auto Sales and Service into the

21st Century 3, Consumer Fed’n of Am. (Oct. 2002), https://consumerfed.org/pdfs/InternetAutos102902.pdf; Gerald R. Bodisch,

Economic Effects of State Bans on Direct Manufacturer Sales to

Car Buyers, Economic Analysis Group 1 (May 2009),

https://www.justice.gov/atr/economic-effects-state-bans-directmanufacturer-sales-car-buyers; see also Joshua B. Arons, Tesla’s

Right to Rise, 44 Transp. L.J. 133 (2017) (detailing Tesla’s efforts

to sell electric vehicles directly to consumers and the numerous

lawsuits these efforts have sparked under state franchise laws).

20

foreseeability were the criterion, . . . [e]very seller of

chattels would in effect appoint the chattel his agent

for service of process.” 444 U.S. at 296. This is particularly true for products like automobiles and aircraft: manufacturers often have no knowledge of

where products will wind up decades later.

Finally, the Montana and Minnesota Supreme

Courts’ decisions relied on general notions of fairness

and convenience. See, e.g., 19-368 Pet. App. 20a-21a;

19-369 Pet. App. 7a, 18a-20a. But this Court has rejected reliance on these considerations: “[d]ue process

limits on the State’s adjudicative authority principally

protect the liberty of the nonresident defendant—not

the convenience of plaintiffs or third parties.” Walden, 571 U.S. at 284. That is because, under the federalism principles that underlie these due-process

limits, “[f]reeform notions of fundamental fairness divorced from traditional practice cannot transform a

judgment rendered in the absence of authority into

law.” J. McIntyre, 564 U.S. at 880 (plurality opinion).

Thus, courts may not “excuse[]” these jurisdictional

prerequisites even if “the plaintiff would suffer substantial hardship if forced to litigate in a foreign forum.” Id. at 883.

Ultimately, the respondents’ stream-of-commerce

theory has no limiting principle—particularly for

manufacturers of inherently mobile and durable products, like automobiles and aircraft. If this Court endorses that theory at all as a viable basis for specific

personal jurisdiction, it should strictly limit it to the

forum in which the manufacturer actively participated within the stream of commerce. That is precisely the interpretation adopted by the Third Circuit

in Pilatus. The court held that specific personal

21

jurisdiction could not be exercised over the aircraft

manufacturer even though it had some contacts with

Pennsylvania (visits to the State to meet with suppliers and the purchase of more than $1 million in goods

or services from Pennsylvania suppliers), because the

plaintiff’s claims did not “arise out of or relate to”

those Pennsylvania contacts. 566 F.3d at 104. And

while the manufacturer knew and expected its planes

could end up in any State, the court held that the “socalled ‘stream of commerce’” theory upon which the

plaintiffs relied did not “provide a basis for jurisdiction” because the manufacturer did not direct the aircraft at issue through the stream of commerce to

Pennsylvania. Id. at 104-05. Because the aircraft

made it to Pennsylvania through the conduct of others, and not as a result of any actions by the manufacturer, the court held that the plaintiffs had pushed the

stream-of-commerce theory far beyond its reasonable

limits. Id. at 105-06. The court recognized that a contrary rule would confer specific personal jurisdiction

based on foreseeability alone, which “has never been

a sufficient benchmark for personal jurisdiction under

the Due Process Clause.” Id. at 105 (quoting WorldWide Volkswagen, 444 U.S. at 295). But that foreseeability standard is precisely what adoption of respondents’ theory would endorse.

Thus, if this Court endorses respondents’ streamof-commerce theory as a viable basis for specific personal jurisdiction, it should strictly limit it to the forum in which the manufacturer actively participated

within the stream of commerce (in many cases, where

the manufacturer first sells the product, as that is typically all that the manufacturer has control over). A

22

contrary rule improperly places plaintiffs, rather than

defendants, in the personal-jurisdiction driver’s seat.

III.

Respondents’ No-Causation Rule Will

Create Massive Uncertainty and Increase

Litigation over Threshold Jurisdictional

Issues.

The due-process protections underlying the purposeful availment test is intended to provide “predictability” to defendants so they can “structure their primary conduct with some minimum assurance as to

where the conduct will and will not render them liable

to suit.” World-Wide Volkswagen, 444 U.S. at 297.

But respondents’ no-causation, stream-of-commerce

rule does exactly the opposite: it simply replaces one

question (whether a causal relationship is required)

with many more.

First, if forum-state contacts not causally connected to the plaintiffs’ claims (such as unrelated marketing or sales to other individuals in the forum State)

suffice to establish specific personal jurisdiction, then

are those connections assessed as of the time of design

and manufacture (which may have occurred 30 years

earlier), the time of plaintiffs’ injury, or the time the

lawsuit was filed? If the relevant contacts are those

at the time of design and manufacture, then that

would mean a roving inquiry into activities and sales

completely unconnected to the claims at issue that are

potentially decades old. It would also mean that previous contacts, even deliberately discontinued, could

still support specific personal jurisdiction. Specific

personal jurisdiction would become a switch that, once

turned on, could never be turned off. This would make

“specific” personal jurisdiction even more persistent

23

and capacious than general jurisdiction, which may be

prospectively eliminated by abandoning all presence

and activities in a given forum. And if, in contrast,

the relevant contacts are those at the time of sale or

suit, that would mean that later actions (taken potentially by a different company, long after a merger or

acquisition) could confer jurisdiction over claims

about conduct that occurred decades earlier when the

forum contacts did not exist. Neither of these two formulations makes any sense.

Second, what quantum of unrelated evidence

would be sufficient to confer specific personal jurisdiction? Would advertisements run 10 years after the

relevant product was manufactured and 10 years before any injury occurred? Nationwide advertisements

that extend into the forum State? Advertisements

that reached a different part of the forum State than

where a plaintiff resides or the injury occurred? How

many advertisements would need to be shown?

Third, would the relevant forum contacts have to

relate to the precise product in question (e.g., the specific year, make, and model of the vehicle that is alleged defective)? Or would relation to other, similar

products (the make and model of that vehicle from a

different year—one that is not alleged to have the design defect) be enough? How about a different type of

vehicle? And if a different type of vehicle fits the bill,

then why not different products altogether?

These are just some of the myriad questions that

will occupy state and federal courts for decades (undoubtedly with inconsistent or even conflicting results) if respondents’ no-causation, stream-of-commerce theory is adopted. That would only exacerbate

24

the confusion and uncertainty that exists now in the

absence of a uniform nationwide rule.

IV.

Respondents’ Rule Would Have a Particularly Pernicious Impact on Foreign Manufacturers.

The implications of respondents’ position are even

more dramatic for the many foreign manufacturers

that sell vehicles abroad. The volume of foreign-manufactured cars that are imported to the United States

is substantial: according to the Center for Automotive

Research, 48 percent of all automobiles sold in the

United States were imported and more than $340 billion worth of imported light vehicles and parts were

sold in the United States in 2017. 9

These automobiles arrive in the United States in a

variety of ways. Sometimes foreign corporations manufacture automobiles in their home countries and export them for sale in the United States, most commonly through distributors or dedicated importers.

And they of course do so with the understanding that

if they export an automobile to Pennsylvania, they

could be subject to civil litigation in Pennsylvania for

claims arising out of that Pennsylvania conduct. But

other times, automobiles that are designed, manufactured, and sold in foreign countries are imported directly by consumers without any involvement by the

manufacturer itself. In fact, consumers even import

automobiles that were not designed or manufactured

9 Michael Schultz et al., U.S. Consumer & Economic Impacts of

U.S. Automotive Trade Policies 3, Ctr. for Auto. Research (Feb.

2019),

https://www.cargroup.org/wp-content/uploads/2019/02/

US-Consumer-Economic-Impacts-of-US-Automotive-Trade-Policies-.pdf.

25

to be legally operated in the United States—the Environmental Protection Agency (EPA) permits consumers to import nonconforming vehicles either by meeting one of several exemptions or by modifying them,

and EPA certifies Independent Commercial Importers

to modify, test, and certify vehicles for compliance

with U.S. emission standards. 10

In either event, importation of foreign-manufactured vehicles is a common occurrence—and not only

for new vehicles. In 2017, more than $1 billion in used

cars were imported to the United States. See Office of

Transp. & Mach., U.S. Dep’t of Commerce, U.S. Imports of Used Passenger Vehicles Imports, Value and

Units,

https://legacy.trade.gov/td/otm/assets/auto/

Used_Passenger_Imports.pdf (last visited Mar. 6,

2020). Indeed, EPA recently noted that it had underestimated the number of consumer-imported vehicles

by more than 1,000 percent. 11

10F

Under respondents’ rule, so long as a foreign corporation that manufactured a vehicle abroad has some

U.S. contacts, it risks being haled into state courts in

the United States even if those U.S. contacts had no

impact on the plaintiff’s claims, even if the vehicle

See U.S. EPA, Independent Commercial Importers (ICIs),

https://www.epa.gov/importing-vehicles-and-engines/independent-commercial-importers-icis (last visited Mar. 6, 2020).

11 See Information Collection for Importation of On-Highway Vehicles and Motorcycles and Nonroad Engines, Vehicles, and

Equipment, 84 Fed. Reg. 63,653 (Nov. 18, 2019). Due to a newly

centralized system for submission of forms, including those filed

by individuals importing their own automobiles, the EPA noted

that “we are now able to have a much more accurate count of the

number of forms that are being filed” amounting to “around

160,000 per year vs. the 12,000 we had been estimating” in the

past. Id. at 63,654.

10

26

entered the United States through no action of the foreign manufacturer, and even if the manufacturer did

not even design the vehicle to be legally operated in

the United States. This cannot be right: the “unilateral” action of a consumer or a commercial importer is

not supposed to be “an appropriate consideration

when determining whether a defendant has sufficient

contacts with a forum State to justify an assertion of

jurisdiction.” Helicopteros, 466 U.S. at 417 (discussing personal jurisdiction over a Colombian company).

Even if the defendant could ultimately prevail on

the merits, the respondents’ amorphous test means

that foreign manufacturers in this position at the very

least risk being subjected to protracted and expensive

jurisdictional battles in American courts. This risk is

particularly acute when such a foreign defendant

might be viewed as having deep pockets—even where

plaintiffs unquestionably could bring product-related

claims against a distributor or other defendant in U.S.

courts.

As this Court has recognized, such an “expansive

view” of personal jurisdiction poses “risks to international comity.” Daimler, 571 U.S. at 140. The United

States has expressed similar concerns. In BMS, the

United States argued if a company that conducts business nationwide—or worldwide—could be subject to

personal jurisdiction in any State where it arguably

does business bearing some peripheral relation to a

plaintiff’s claims, it “could exceed what some other nations would regard as reasonable.” U.S. Br. 27, BMS,

No. 16-466. Any personal-jurisdiction test permitting

such a result could “dissuade foreign companies from

doing business in the United States,” and risks American companies being “dissuaded from exporting

27

[their] products” for fear of a similar rule being applied against them. U.S. Br. 12, 31, Goodyear Luxembourg Tires, S.A. v. Brown, No. 10-76. The United

States has even warned that “foreign governments’

objections to some domestic courts’ expansive views of

[] jurisdiction have in the past impeded negotiations

of international agreements on the reciprocal recognition and enforcement of judgments.” Daimler, 571

U.S. at 141-42 (quoting U.S. Brief 2).

These warnings are anything but ill-founded given

the nature of American litigation. America’s partydriven style of discovery and litigation is generally

viewed by foreign companies as uniquely intrusive

and burdensome. See Societe Nationale Industrielle

Aerospatiale v. U.S. Dist. Court for S. Dist. of Iowa,

482 U.S. 522, 542 (1987) (“It is well known that the

scope of American discovery is often significantly

broader than is permitted in other jurisdictions . . . .”).

In contrast to “more restrictive and controlled” discovery rules that predominate in foreign jurisdictions,

“[t]he U.S. discovery process is unique in the liberality

of its rules, the hunger of its lawyers, and the passivity of its judiciary.” 2 Waller, Antitrust & Am. Bus.

Abroad § 15:15 (4th ed. 2018). 12 Indeed, in U.S. litigation, it is quite common for parties to engage in

wide-ranging discovery of any number of documents

12 In many foreign legal systems, a highly involved judge man-

ages disclosure between the parties so as to succinctly determine

the correct answer to the questions before her, unlike the American system of discovery by right. See generally Geoffrey C. Hazard, Jr., Discovery and the Role of the Judge in Civil Law Jurisdictions, 73 Notre Dame L. Rev. 1017, 1020-22 (1998) (describing

differences in development of evidence as between American and

foreign civil law systems, and the latter’s hostility to the former).

28

and facts for potentially years even during the early

stages of a case—and dueling experts are often par for

the course. These differences add up to real costs,

with the U.S. Department of Commerce observing

that “U.S. tort costs as a percentage of GDP are triple

that of France and the United Kingdom and at least

double that of Germany, Japan, and Switzerland.”

U.S. Dep’t of Commerce, The U.S. Litigation Environment and Foreign Direct Investment: Supporting U.S.

Competitiveness by Reducing Legal Costs and Uncertainty 1, https://legacy.trade.gov/investamerica/Litiga

tion_FDI.pdf (Oct. 2008). Thus, companies such as

amici’s international members that do not directly sell

to American customers but may engage with U.S. distributors to sell vehicles in the United States are

rightly chary of subjecting themselves and their employees to U.S. jurisdiction.

To be sure, foreign corporations do and should expect to be compelled to answer a complaint that arises

out of actions they have taken here. But it is one thing

to allow foreign companies to be haled into the courts

of a particular State for claims arising from their conduct in that State. It is another thing entirely to allow

foreign companies to be sued in any State in which

their products were brought as a result of the unilateral decision of consumers, importers, or other third

parties to bring them here—sometimes decades after

the product was manufactured.

29

CONCLUSION

The decisions of the Montana and Minnesota Supreme Courts should be reversed.

Respectfully submitted.

JAIME A. SANTOS

Counsel of Record

STEPHEN R. SHAW

GOODWIN PROCTER LLP

901 New York Ave., NW

Washington, DC 20036

jsantos@goodwinlaw.com

(202) 346-4000

DARRYL M. WOO

GOODWIN PROCTER LLP

Three Embarcadero Center

San Francisco, CA 94111

(415) 733-6000

March 6, 2020

Counsel for Amici Curiae