Opposition Brief — Doe Company, Petitioner v. United States

No. 20-1141

In the Supreme Court of the United States

DOE COMPANY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELIZABETH B. PRELOGAR

Acting Solicitor General

Counsel of Record

NICHOLAS L. MCQUAID

Acting Assistant Attorney

General

WILLIAM A. GLASER

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether petitioner was entitled to interlocutory

appeal of the district court’s order denying its motion to

quash (and ordering enforcement of ) grand-jury subpoenas issued to a third party custodian, when petitioner does not claim that the documents sought are

privileged or otherwise legally protected from disclosure to the grand jury.

2. Whether a reasonable probability existed that the

grand jury would succeed in establishing facts necessary for the district court to exercise personal jurisdiction over petitioner, a foreign corporation, based on petitioner’s contacts with the United States.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 2

Argument....................................................................................... 7

Conclusion ................................................................................... 25

TABLE OF AUTHORITIES

Cases:

Application to Enforce Administrative Subpoenas

Duces Tecum of the SEC v. Knowles, 87 F.3d 413

(10th Cir. 1996) .............................................................. 23, 24

Berkley & Co., In re, 629 F.2d 548 (8th Cir. 1980) ............. 14

Blair v. United States, 250 U.S. 273 (1919) .................. 18, 19

Branzburg v. Hayes, 408 U.S. 665 (1972) ..................... 10, 18

Bristol-Myers Squibb Co. v. Superior Court,

137 S. Ct. 1773 (2017) ......................................................... 22

Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) ...... 12

Catlin v. United States, 324 U.S. 229 (1945)....................... 13

Church of Scientology v. United States, 506 U.S. 9

(1992) .......................................................................... 9, 11, 16

Cobbledick v. United States, 309 U.S. 323 (1940) ................. 8

Cohen v. Beneficial Industrial Loan Corp.,

337 U.S. 541 (1949)................................................................ 8

Faltico, In re, 561 F.2d 109 (8th Cir. 1977) ......................... 14

Gill v. Gulfstream Park Racing Association,

399 F.3d 391 (1st Cir. 2005) ............................................... 14

Gotham Holdings, LP v. Health Grades, Inc.,

580 F.3d 664 (7th Cir. 2009) ......................................... 14, 17

Grand Jury, In re, 619 F.2d 1022 (3d Cir. 1980) ................ 13

Grand Jury Proceedings, In re, 616 F.3d 1172

(10th Cir. 2010) .............................................................. 14, 16

(III)

IV

Cases—Continued:

Page

Grand Jury Subpoena Served on Meserve, Mumper

& Hughes, In re, 62 F.3d 1222 (9th Cir. 1995) ................. 10

Great Atlantic & Pacific Tea Co. v. Supermarket

Equipment Corp., 340 U.S. 147 (1950) ............................. 21

Gucci America, Inc. v. Weixing Li, 768 F.3d 122

(2d Cir. 2014) ....................................................................... 23

International Shoe Co. v. Washington, 326 U.S. 310

(1945) ................................................................................ 4, 19

J. McIntyre Machinery, Ltd. v. Nicastro,

564 U.S. 873 (2011).............................................................. 19

Kiobel v. Cravath, Swaine & Moore LLP, 895 F.3d

238 (2d Cir. 2018), cert. denied, 139 S. Ct. 852

(2019) .................................................................................... 18

Leibovitch v. Islamic Republic of Iran, 852 F.3d 687

(7th Cir. 2017) ...................................................................... 23

Marc Rich & Co., In re, 707 F.2d 663 (2d Cir.),

cert. denied, 463 U.S. 1215 (1983) ................... 4, 6, 7, 19, 20

McGee v. International Life Insurance Co.,

355 U.S. 220 (1957).............................................................. 20

Montgomery Ward & Co. v. Zenith Radio Corp.,

673 F.2d 1254, 1259 (C.C.P.A.), cert denied,

459 U.S. 943 (1982).............................................................. 14

Nelson v. United States, 201 U.S. 92 (1906) ....................... 17

Omni Capital International, Ltd. v. Rudolf Wolff &

Co., 484 U.S. 97 (1987) ........................................................ 19

Perlman v. United States, 247 U.S. 7 (1918) ................ 5, 8, 9

Sealed Case, In re:

832 F.2d 1268 (D.C. Cir. 1987) ......................................... 3

932 F.3d 915 (D.C. Cir. 2019) ................................... 19, 20

Societe Internationale Pour Participations

Industrielles Et Commerciales, S. A. v. Rogers,

357 U.S. 197 (1958).............................................................. 17

V

Cases—Continued:

Page

United States v. Beltramea, 831 F.3d 1022

(8th Cir. 2016) ...................................................................... 15

United States v. Calandra, 414 U.S. 338 (1974). ................ 10

United States v. First National City Bank,

396 F.2d 897 (2d Cir. 1968) ................................................ 18

United States v. MacDonald, 435 U.S. 850 (1978) ............. 12

United States v. Ryan, 402 U.S. 530 (1971) ............... passim

United States v. Williams, 504 U.S. 36 (1992) ................... 18

United States Catholic Conference v. Abortion

Rights Mobilization, Inc., 487 U.S. 72 (1988).................. 19

United States ex rel. Pogue v. Diabetes Treatment

Centers of America, Inc., 444 F.3d 462 (6th Cir.

2006) ..................................................................................... 15

Constitution, statutes, and rule:

U.S. Const.:

Amend. I ........................................................................... 14

Amend. IV ...................................................................... 5, 8

Amend V ......................................................................... 5, 8

28 U.S.C. 1291 ...................................................................... 5, 8

28 U.S.C. 1292(a) ..................................................................... 8

28 U.S.C. 1292(b) ..................................................................... 8

Fed. R. Civ. P. 45 ................................................................... 23

Sup. Ct. R. 10 ......................................................................... 18

Miscellaneous:

3 Wayne R. LaFave et al., Criminal Procedure

(4th ed. 2015) ....................................................................... 10

In the Supreme Court of the United States

No. 20-1141

DOE COMPANY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-18a)

is reported at 966 F.3d 991. The orders of the district

court (Pet. App. 19a-20a, 21a-23a, 24a-67a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

July 27, 2020. A petition for rehearing was denied on

September 2, 2020. (Pet. App. 69a). On March 19, 2020,

this Court extended the time within which to file any

petition for a writ of certiorari due on or after that date

to 150 days from the date of the lower-court judgment,

order denying discretionary review, or order denying a

timely petition for rehearing. The petition for a writ of

certiorari was filed on January 29, 2021. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

A grand jury in the United States District Court for

the Northern District of California issued subpoenas to

petitioner and one of its employees. The district court

denied petitioner’s motion to quash the subpoenas and

ordered their enforcement, Pet. App. 21a-23a, 24a-67a,

and later found petitioner in contempt for refusing to

comply with the subpoena directed to it, id. at 19a-20a.

The court of appeals dismissed petitioner’s interlocutory appeal relating to the employee’s subpoenas for

lack of jurisdiction and affirmed the enforcement and

contempt orders against petitioner. Id. at 1a-18a.

1. This case arises out of a grand jury investigation

into “the acquisition of one company by another” in

which the acquired company is alleged to have “provided fraudulently misleading information about its

true value, leading the acquiring company to pay a substantially inflated price.” Pet. App. 4a. “The grand jury

has so far issued two indictments” based on its investigation. Ibid.

Petitioner is a corporation “based outside the United

States” formed by former officers of the acquired company shortly after the acquisition, from which they personally profited, “us[ing] their personal funds.” Pet.

App. 14a-15a. Among other matters, see id. at 27a-28a,

the grand jury continues to investigate whether “money

from the acquisition may have been laundered through

[petitioner], and later laundered again through what

was initially a wholly owned subsidiary of [petitioner],”

id. at 16a.

The grand jury issued a subpoena to Pat Roe (a pseudonym), “a former officer at the acquired company and

a current partner at [petitioner].” Pet. App. 4a; see id.

at 28a. The subpoena instructed Roe to appear at a

3

grand jury proceeding and to bring “[a]ll documents relating in any way to” the acquired company, various former officers of that company, and the criminal investigation. Id. at 28a (citation omitted); see id. at 28a-30a.

Roe produced some documents in response to that subpoena but withheld other documents relating to her employment with petitioner. Id. at 29a; C.A. Supp. E.R.

153-154. The grand jury later served Roe with a second

subpoena requesting “all documents relating to” petitioner. Pet. App. 29a (brackets and citation omitted).

Roe has produced some responsive documents but has

withheld others at petitioner’s request. C.A. Supp. E.R.

154. The grand jury also issued a subpoena to petitioner

itself, seeking “any and all documents” related to the

acquisition, as well as the “hiring” of, “retention” of, or

“payment” to “any persons formerly employed by” the

acquired company. Pet. App. 29a-30a (citation omitted);

C.A. Supp. E.R. 339. Petitioner has not complied with

that subpoena. Pet. App. 17a.

2. Petitioner moved to quash the two grand jury

subpoenas issued to Roe. See Pet. App. 30a. As relevant here, petitioner argued that because those subpoenas sought documents that Roe held in her representative capacity, they required establishing personal jurisdiction over petitioner itself—but that the district court

lacked such jurisdiction. C.A. E.R. 282 (citing In re

Sealed Case, 832 F.2d 1268 (D.C. Cir. 1987)). The government moved to compel compliance with all three subpoenas. See Pet. App. 30a; C.A. Supp. E.R. 142-161.

The court denied petitioner’s motion to quash the Roe

subpoenas and ordered petitioner and Roe to comply

with the subpoenas. Pet. App. 22a, 48a. As relevant

here, the court determined that it had “specific personal

4

jurisdiction over [petitioner]” to support issuance of the

grand jury’s subpoenas. Id. at 34a.

The district court first explained that the proper test

for personal jurisdiction over a foreign corporation was

derived from International Shoe Co. v. Washington,

326 U.S. 310 (1945), but with a focus on “minimum contacts with the United States” rather than “minimum

contacts with a state.” Pet. App. 36a (citation omitted).

The International Shoe standard asks whether the

party has sufficient “minimum contacts” with the forum

such that exercise of jurisdiction would not “offend ‘traditional notions of fair play and substantial justice.’ ”

326 U.S. at 316 (citation omitted); see Pet. App. 36a.

The court explained that because the grand jury’s role

is to investigate, the government need not establish personal jurisdiction by a preponderance of the evidence,

but need only show “a reasonable probability that ultimately [the grand jury] will succeed in establishing the

facts necessary for the exercise of jurisdiction.” Id. at

42a (quoting In re Marc Rich & Co., 707 F.2d 663, 670

(2d Cir.), cert. denied, 463 U.S. 1215 (1983)).

Applying that standard, the district court found a

“ ‘reasonable probability’ that [petitioner] may have violated federal money laundering laws.” Pet. App. 44a

(citation omitted). The court observed that “several

people who had been involved with the fraud at [the acquired company], including at least one who has since

been convicted for his involvement, * * * invested personal funds in [petitioner].” Id. at 42a. The court further observed that “[a]ccording to a memorandum internal to [petitioner] in 2012, ‘the management team

will invest up to [a substantial amount] of its own money

in the fund.’ ” Ibid. (brackets and citation omitted). And

the court observed that petitioner did “not appear to

5

dispute” that if former employees of the acquired company created petitioner “with their own funds, and if

they obtained those funds from their previous work at

[the acquired company], there would be a reasonable

probability that the Grand Jury could return indictments on money laundering.” Id. at 44a. The court accordingly found a “reasonable probability that ultimately it will succeed in establishing the facts necessary

for the exercise of jurisdiction” and that the court therefore had “specific personal jurisdiction over [petitioner]

to issue the subpoenas.” Id. at 45a (citation omitted).

After petitioner refused to comply with the grandjury subpoena issued to it, the district court held petitioner in contempt. Pet. App. 19a-20a.

3. The court of appeals dismissed petitioner’s appeal

in part and affirmed in part. Pet. App. 1a-18a.

a. The court of appeals determined that it “lack[ed]

appellate jurisdiction to review the district court’s enforcement order directed to Roe” because that order

was not an appealable final decision under 28 U.S.C.

1291. Pet. App. 5a. The court rejected petitioner’s argument that Perlman v. United States, 247 U.S. 7

(1918), which held that the target of a grand jury investigation could immediately appeal his claim that documents held by a disinterested third party were protected by the Fourth and Fifth Amendments, supplied

a basis for appealing the indisputably nonfinal order.

See Pet. App. 7a-13a.

The court of appeals observed that under Perlman,

“a discovery order directed at a disinterested thirdparty custodian of privileged documents is immediately

appealable because the third party, presumably lacking

a sufficient stake in the proceeding, would most likely

6

produce the documents rather than submit to a contempt citation.” Pet. App. 7a-8a (citation omitted). The

court acknowledged that it had sometimes described

Perlman in “shorthand fashion,” omitting “the requirement that the challenged order seek[] privileged documents.” Id. at 8a. But the court explained that “[d]espite [its] abbreviated statements of the doctrine,” Perlman permits “interlocutory appeals from orders enforcing grand jury subpoenas only when they require

production of materials that are claimed to be privileged

or otherwise legally protected from disclosure” to the

grand jury. Id. at 8a-9a. Because petitioner had

“ma[de] no such claim,” the court determined that it

lacked jurisdiction over the interlocutory appeal. Id. at

11a.

b. The court of appeals also affirmed the order enforcing the subpoena against petitioner, declining to

disturb the district court’s determination that the record here supported its “in personam jurisdiction” over

petitioner to issue the subpoena. Pet. App. 15a; see id.

at 14a-16a. The court thus also affirmed the contempt

finding. Id. at 18a.

The court of appeals explained that in the grand-jury

subpoena context, the government must demonstrate a

“reasonable probability” that the grand jury’s investigation would “succeed in establishing the facts necessary for the exercise of jurisdiction.” Pet. App. 15a

(quoting Marc Rich, 707 F.2d at 670). The court further

explained that the “relevant forum” in the inquiry is

“not the state in which the grand jury is empaneled but

‘the entire United States,’ which is itself ‘injuriously affected’ by the criminal offense.” Ibid. (citation omitted).

And the court observed that the parties did “not dispute

that in the grand jury subpoena context, the ‘reasonable

7

probability’ test * * * governs a determination of in

personam jurisdiction.” Ibid. (citation omitted).

Applying that test, the court of appeals found no

clear error in the district court’s determination that a

reasonable probability existed that the government

could establish facts necessary to support personal jurisdiction. Pet. App. 15a-16a. The court of appeals observed that the district court had found that “several

people who had profited from the sale of the acquired

company used their personal funds shortly thereafter to

help found [petitioner].” Id. at 15a. The court of appeals also observed that the government alleged that

the funds from the acquisition “may have been laundered through [petitioner], and later laundered again

through what was initially a wholly owned subsidiary of

[petitioner],” and that record evidence showed that

“[petitioner] and the [subsidiary] at one time shared the

same office in the United States” and had “substantial

overlap” between their employees. Id. at 16a. The

court thus determined that “taken together, these [and

other] findings adequately support the district court’s

determination that it had in personam jurisdiction over

[petitioner].” Ibid.

ARGUMENT

Petitioner challenges (Pet. 11-22) the court of appeals’ determination that it lacked appellate jurisdiction

over petitioner’s interlocutory challenge to the Roe subpoenas, as well as the findings of both lower courts concerning the exercise of personal jurisdiction (Pet. 2234). Both contentions lack merit, and the decision below

does not conflict with any decision of this Court or another court of appeals. Further review is unwarranted.

8

1. The court of appeals correctly determined that it

lacked appellate jurisdiction over petitioner’s interlocutory challenge to the Roe subpoenas, and its determination does not conflict with any decision of this Court or

another court of appeals.

a. Federal courts of appeals generally have jurisdiction to review only “final decisions of the district

courts.” 28 U.S.C. 1291. Congress has created certain

express exceptions to that final-judgment rule, e.g.,

28 U.S.C. 1292(a); cf. 28 U.S.C. 1292(b), and this Court

has recognized other circumstances in which interlocutory review may be available, see, e.g., Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949). As

relevant here, an order compelling enforcement of a

grand jury subpoena ordinarily is not immediately appealable, and so the party subject to the subpoena must

either “obey its commands or refuse to do so and contest

the validity of the subpoena if he is subsequently cited

for contempt,” which would be immediately appealable.

United States v. Ryan, 402 U.S. 530, 532 (1971); see

Cobbledick v. United States, 309 U.S. 323, 327-328

(1940).

Perlman v. United States, 247 U.S. 7 (1918), recognized a limited exception to that rule. There, the district court had ordered that some of Perlman’s papers,

which were still in the clerk of court’s custody after a

previous lawsuit by Perlman’s company, be provided to

a grand jury that was investigating Perlman for perjury. Id. at 8-11. Perlman opposed the order, arguing

that the order would “constitute[] an unreasonable seizure” in violation of the Fourth Amendment and would

violate his privilege against self-incrimination under the

Fifth Amendment. Id. at 13. In a terse discussion, this

Court stated that Perlman could immediately appeal

9

because he “was powerless to avert the mischief of the

order.” Ibid. As the Court elaborated many decades

later, interlocutory appeal was justified in Perlman because the clerk of court “could hardly have been expected to risk a citation for contempt in order to secure

Perlman an opportunity for judicial review.” Ryan, 402

U.S. at 533; see Church of Scientology v. United States,

506 U.S. 9, 18 n.11 (1992). The Court thus summarized

Perlman’s holding as having recognized an exception to

the final-judgment rule to allow “immediate review of

an order directing a third party to produce exhibits

which were the property of appellant and, he claimed,

immune from production.” Ryan, 402 U.S. at 533.

b. The court of appeals correctly determined that in

order for Perlman’s exception to the final-judgment

rule to apply, the challenged order must both be directed at a “disinterested third-party custodian,” Pet.

App. 7a (citation omitted), and require production of

documents that the appellant claims are “privileged or

otherwise legally protected from disclosure” to a grand

jury, id. at 9a. Those requirements track this Court’s

own description of Perlman as involving documents

held by a third party “which were the property of appellant and, he claimed, immune from production.” Ryan,

402 U.S. at 533 (emphasis added).

The requirement that an appellant, before obtaining

interlocutory review, at least claim that the documents

at issue are privileged or otherwise legally protected

from disclosure to a grand jury makes sense in light of

the unique role of grand juries in our criminal justice

system. Grand juries have “wide latitude to inquire into

violations of criminal law,” and their “operation generally is unrestrained by the technical procedural and ev-

10

identiary rules governing the conduct of criminal trials.” United States v. Calandra, 414 U.S. 338, 343

(1974). A witness ordinarily “has no right of privacy before the grand jury” and “may not decline to answer on

the grounds that his responses might prove embarrassing or result in an unwelcome disclosure of his personal

affairs.” Id. at 353. This Court has thus observed that

“the longstanding principle that ‘the public has a right

to every man’s evidence,’ except for those persons protected by a constitutional, common-law, or statutory

privilege, is particularly applicable to grand jury proceedings.” Branzburg v. Hayes, 408 U.S. 665, 688

(1972) (citations and ellipsis omitted). As that principle

suggests, the grand jury may not “violate a valid privilege, whether established by the Constitution, statutes,

or the common law.” Calandra, 414 U.S. at 346. A limited class of other protections, including the work product doctrine and civil protective orders, also may shield

information from the grand jury. See 3 Wayne R.

LaFave et al., Criminal Procedure § 8.6(b), at 160-168

(4th ed. 2015); In re Grand Jury Subpoena Served on

Meserve, Mumper & Hughes, 62 F.3d 1222, 1223 (9th

Cir. 1995) (information protected by court order).

When such a protection is at issue, interlocutory review of a disclosure order thus makes sense, “for if a

document produced to the grand jury is later held to

have contained privileged information, protection provided by the privilege will have been irretrievably lost.”

Pet. App. 10a; see id. at 11a (“[A]n appeal after final

judgment would come too late to remedy that harm.”).

Accordingly, as this Court has explained, Perlman’s exception is premised on the observation that “[t]o have

denied [interlocutory] review would have left Perlman

‘powerless to avert the mischief of the order,’ ” Ryan,

11

402 U.S. at 533 (citation omitted), where the mischief in

question was the irreparable harm of disclosing exhibits

that were claimed to be “immune from production,”

ibid. But a disclosure order works no such “mischief ”

when the documents to be disclosed are not claimed to

be privileged or otherwise protected from disclosure to

the grand jury. In that circumstance, the appellant

would not suffer any irreparable harm from disclosure—

indeed, might not suffer any cognizable harm at all,

given both the grand jury’s historically broad investigatory power and that the physical burdens of disclosure

will fall on a third party.

Relying on a footnote in Church of Scientology, supra, petitioner suggests (Pet. 19) that “[t]he touchstone

of Perlman has always been the loss of a substantial interest absent an immediate appeal, not the type of interest being asserted.” That suggestion is mistaken.

For one thing, the portion of the footnote on which petitioner relies (Pet. 19-20) simply noted that “under the

so-called Perlman doctrine, a discovery order directed

at a disinterested third party is treated as an immediately appealable final order because the third party presumably lacks a sufficient stake in the proceeding to

risk contempt by refusing compliance.” Church of Scientology, 506 U.S. at 18 n.11 (citation omitted). That

footnote did not purport to define the specific circumstances in which Perlman might apply, let alone support petitioner’s contention (Pet. 19) that “the type of

interest being asserted” is irrelevant. Indeed, Perlman

was not even relevant to Church of Scientology, given

that the case involved an order that was indisputably final and thus not subject to Perlman in the first place.

See 506 U.S. at 18 n.11.

12

Petitioner’s overreading of that footnote also cannot

be squared with this Court’s admonition that it has “allowed exceptions” to the final-judgment rule “[o]nly in

the limited class of cases where denial of immediate review would render impossible any review whatsoever of

an individual’s claims.” Ryan, 402 U.S. at 533. As explained above, a person has no cognizable interest in

keeping documents from a grand jury unless they are

protected from disclosure by privilege or some other legal doctrine. If the documents enjoy such privilege or

legal protection, disclosure to the grand jury would irretrievably destroy that privilege or protection, making

it “impossible” for appellate review following a final

judgment to vindicate those interests. Cf. United

States v. MacDonald, 435 U.S. 850, 860 (1978) (explaining that interlocutory criminal appeals could be available only when “the legal and practical value” of the “asserted right” would “be destroyed if it were not vindicated before trial”). That is not true of other interests

in resisting grand-jury disclosure—including the dueprocess interest that petitioner asserts here.

Specifically, petitioner asserts (Pet. C.A. Br. 44-56)

that it would violate due process to enforce the grandjury subpoenas against Roe if the district court does not

have personal jurisdiction over petitioner. Whether or

not that assertion is correct, the interest protected by

due process in the personal-jurisdiction context is the

interest in “not being subject to the binding judgments

of a forum with which [the defendant] has established

no meaningful ‘contacts, ties, or relations.’ ” Burger

King Corp. v. Rudzewicz, 471 U.S. 462, 471-472 (1985)

(citation omitted). An interlocutory order is by definition not itself such a “binding judgment[],” id. at 471,

and this Court has long held that the “denial of a motion

13

to dismiss, even when the motion is based upon jurisdictional grounds, is not immediately reviewable,” Catlin

v. United States, 324 U.S. 229, 236 (1945). Unlike a

claim of privilege or other legal protection against disclosure, the due-process interests asserted by petitioner do not fall within the “limited class” of “claims”

that would be “impossible” to review on appeal following a final judgment. Ryan, 402 U.S. at 533.

c. Contrary to petitioner’s contention (Pet. 13-17),

the decision below does not conflict with the decisions

of any other courts of appeals. Petitioner identifies no

case allowing an interlocutory appeal under Perlman

based on the appellant’s challenge to personal jurisdiction. And each of the cases it cites as establishing a conflict involves materially different circumstances.

Petitioner principally relies (Pet. 13-14) on the Third

Circuit’s decision in In re Grand Jury, 619 F.2d 1022

(1980) (Schmidt), with which the decision below expressed disagreement, see Pet. App. 13a. But the fourdecade-old decision in Schmidt does not present a conflict warranting this Court’s review. There, the district

court denied a brewery’s motion to quash grand jury

subpoenas to its employees, where the brewery alleged

that the grand jury was “not investigating federal

crimes” and that “the investigation was being conducted in bad faith.” 619 F.2d at 1024. The Third Circuit found jurisdiction under Perlman to entertain the

brewery’s interlocutory appeal, on the theory that if the

grand jury ultimately did not issue an indictment, the

brewery “will have been subjected to the alleged harassment of having its records removed from its place of

business and its employees diverted from their business

tasks without an opportunity for appellate review.” Id.

at 1025. The court then denied relief on the merits. Id.

14

at 1027. Unlike the brewery in Schmidt, petitioner has

never alleged that the subpoenas will unduly burden petitioner’s business or employees, and petitioner identifies no decision of the Third Circuit applying Perlman

to an appeal asserting a lack of personal jurisdiction.

The other cases on which petitioner relies (Pet. 1416) likewise do not establish a conflict warranting this

Court’s review. Only three were about grand-jury subpoenas, as opposed to civil discovery subpoenas, and all

of them involved claims of privilege or other legal protection against disclosure. See In re Faltico, 561 F.2d

109, 110-111 & n.2 (8th Cir. 1977) (per curiam) (claim

that disclosure would violate First Amendment associational rights); In re Berkley & Co., 629 F.2d 548, 551

(8th Cir. 1980) (attorney-client privilege); In re Grand

Jury Proceedings, 616 F.3d 1172, 1179 (10th Cir. 2010)

(attorney-client privilege and work-product doctrine).

The court of appeals here expressly acknowledged that

such cases involving a “claim of evidentiary privilege”

or “other legal claim specifically protecting against disclosure to the grand jury” would fall within Perlman.

Pet. App. 14a.

The remaining four cases petitioner cites (Pet. 14-16)

are even further afield, as they involved not grand-jury

subpoenas, but subpoenas in civil lawsuits. Furthermore, three of them, like the cases above, involved

claims of privilege or other legal protection against disclosure. See Gill v. Gulfstream Park Racing Association, 399 F.3d 391, 393-394, 399 (1st Cir. 2005) (identity

of tipsters allegedly protected by informant’s privilege);

Gotham Holdings, LP v. Health Grades, Inc., 580 F.3d

664, 665 (7th Cir. 2009) (confidentiality condition in arbitration proceedings); Montgomery Ward & Co. v.

Zenith Radio Corp., 673 F.2d 1254, 1259 (C.C.P.A.),

15

cert. denied, 459 U.S. 943 (1982) (confidentiality of business information). And the fourth did not even involve

a disinterested third party, but instead was an appeal

by the party against whom the disclosure order was directed. See United States ex rel. Pogue v. Diabetes

Treatment Centers of America, Inc., 444 F.3d 462, 473474 & n.8 (6th Cir. 2006) (explaining that the appellant

could disobey and suffer contempt if it wished to appeal).

Not only are the decisions on which petitioner relies

inapposite, but as the court of appeals recognized (Pet.

App. 12a-13a), nearly all courts of appeals have in published opinions described Perlman as being applicable

to cases in which “the appellant has asserted a privilege” over the information at issue. United States v.

Beltramea, 831 F.3d 1022, 1024 (8th Cir. 2016); see Pet.

App. 12a-13a (citing additional cases from the First,

Second, Fourth, Fifth, Sixth, Seventh, Tenth, Eleventh,

and D.C. Circuits). Petitioner does not cite any of those

cases or attempt to explain how they can be squared

with petitioner’s assertion of a direct circuit conflict. At

a minimum, they illustrate that circuits’ views in this

area are sufficiently unsettled that this Court’s intervention is not warranted.

d. In any event, this case would be a poor vehicle in

which to review the first question presented for at least

three reasons.

First, the only ground on which petitioner has

challenged the Roe subpoenas relates to personal

jurisdiction—specifically, the assertion that because

the subpoenas directed to Roe involve corporate documents, the government must prove that the district

court had personal jurisdiction over petitioner (even if

the court indisputably has personal jurisdiction over

16

Roe herself ). See Pet. 18-19; Pet. C.A. Br. 44-56. But

obtaining interlocutory review of that issue is academic

when, as here, the court of appeals already has determined that the district court in fact has personal jurisdiction over petitioner. See Pet. App. 15a-16a. Enforcing the Roe subpoenas thus would be proper even under

petitioner’s theory that the court must establish personal jurisdiction over petitioner. More to the point, petitioner was able to obtain interlocutory review of the

personal-jurisdiction determination itself, and so did

not “los[e] its ability to pursue its personal jurisdiction

arguments on appeal ever.” Pet. 20. It pursued those

arguments and lost on the merits. Accordingly, even if

the first question presented were resolved in petitioner’s favor, it would make no practical difference to

the outcome here.

Second, to fall within Perlman’s exception to the

final-judgment rule, petitioner would have to show that

Roe was a “disinterested third party,” Church of Scientology, 506 U.S. at 18 n.11, who could not “have been

expected to risk a citation for contempt in order to secure [petitioner] an opportunity for judicial review,”

Ryan, 402 U.S. at 533. Although the court of appeals

did not reach the issue, the government argued below

that Roe was not a disinterested third party. See Gov’t

C.A. Br. 5-7. Roe is both a high-ranking employee and

(at least at some point) a part owner of petitioner, and

thus unlikely to be a truly disinterested third party in

the grand jury’s investigation. C.A. Supp. E.R. 151,

300, 305. And unlike a prototypical disinterested third

party, like the clerk of court in Perlman, Roe has not

demonstrated a willingness to fully comply with the

subpoenas. See Grand Jury Proceedings, 616 F.3d at

1179 (stating that Perlman applies when “the party

17

subject to the subpoena indicates that he or she will produce the records or testify rather than risk contempt”);

Gotham Holdings, 580 F.3d at 665 (applying Perlman

after observing that the documents’ custodian was “willing to hand them over”). Instead, Doe has withheld production at petitioner’s request. C.A. Supp. E.R. 154.

Under those circumstances, petitioner cannot show that

Roe is sufficiently disinterested that she could not be

expected to take a contempt citation on petitioner’s behalf. At a minimum, the Court would have to address

that antecedent factbound issue before it could address

the first question presented here.

Third, and at all events, the underlying contention of

which petitioner seeks interlocutory review—that personal jurisdiction over petitioner is required to enforce

the subpoenas against Roe—lacks merit. The relevant

subpoenas are directed to Roe, not to petitioner, and involve documents “stored on a laptop and cellphone

within her possession.” Pet. App. 50a. Petitioner has

never disputed that the district court had personal jurisdiction over Roe, and that the requested documents

are within Roe’s control. That is sufficient to enforce

the subpoenas, given petitioner’s lack of any other objection to them. See Nelson v. United States, 201 U.S.

92, 115 (1906) (rejecting as “untenable” the argument

that corporate-officer witnesses were entitled to refuse

to produce documents on the theory that “the possession of the witnesses was not personal, but was that of

the respective corporations of which they were officers”); cf. Societe Internationale pour Participations

Industrielles et Commerciales, S. A. v. Rogers, 357 U.S.

197, 204-205 (1958) (holding in a related context that a

person with control over corporate documents stored

overseas must produce them even if production would

18

violate the foreign sovereign’s law). Whether the district court had personal jurisdiction over not only Roe,

but petitioner as well, is therefore ultimately irrelevant.

See Kiobel v. Cravath, Swaine & Moore LLP, 895 F.3d

238, 244 (2d Cir. 2018) (rejecting the argument that a

“court cannot compel a law firm to produce a client’s

documents when (as here) the client is not subject to the

court’s personal jurisdiction”), cert. denied, 139 S. Ct.

852 (2019) (No. 18-706); United States v. First National

City Bank, 396 F.2d 897, 900-901 (2d Cir. 1968) (holding

that a federal court may require “production of documents located in foreign countries if the court has in

personam jurisdiction of the person in possession or

control of the material”) (emphasis omitted).

2. Petitioner also seeks this Court’s review of the

lower courts’ finding of personal jurisdiction over petitioner. The court of appeals applied the very test that

petitioner advocates here, and its factbound resolution

of the issue does not warrant further review. See Sup.

Ct. R. 10.

a. A grand jury “cannot compel the appearance of

witnesses and the production of evidence,” but instead

“must appeal to the court when such compulsion is required.” United States v. Williams, 504 U.S. 36, 48

(1992). The courts below thus accepted that the grand

jury’s compulsory subpoena power is limited by the district court’s jurisdictional reach. But given the nature

of a grand jury’s task—“to inquire into the existence of

possible criminal conduct” in the first place, Branzburg,

408 U.S. at 688 (emphasis added)—and the “historic”

and “essential” role that subpoenas play in fulfilling

that task, ibid., the facts required to establish jurisdiction need not be proved ex ante to support a grand-jury

subpoena. Instead, as this Court explained in Blair v.

19

United States, 250 U.S. 273 (1919), “the court and grand

jury have authority and jurisdiction to investigate the

facts in order to determine the question whether the

facts show a case within their jurisdiction.” Id. at 282283; cf. United States Catholic Conference v. Abortion

Rights Mobilization, Inc., 487 U.S. 72, 77, 79 (1988).

Although Blair addressed subject-matter jurisdiction, lower courts have recognized that those principles

also apply to personal jurisdiction. See, e.g., In re Marc

Rich & Co., 707 F.2d 663 (2d Cir.), cert. denied, 463 U.S.

1215 (1983). Those courts have therefore understood

that a grand-jury subpoena is enforceable against a person as long as “the Government shows that there is a

reasonable probability that ultimately it will succeed in

establishing the facts necessary for the exercise of [personal] jurisdiction” over that person. Id. at 670; see In

re: Sealed Case, 932 F.3d 915, 923 (D.C. Cir. 2019); Pet.

App. 15a.

Personal jurisdiction requires “sufficient contacts or

ties with the state of the forum to make it reasonable

and just, according to our traditional conception of fair

play and substantial justice,” to subject a person to the

court’s jurisdiction. International Shoe Co. v. Washington, 326 U.S. 310, 320 (1945). When that person is a

foreigner, and the court is a federal court, the relevant

contacts are those “with the entire United States, not

simply the state” in which the court is located. Marc

Rich, 707 F.2d at 667; see J. McIntyre Machinery, Ltd.

v. Nicastro, 564 U.S. 873, 884, 886 (2011); cf. Omni Capital International, Ltd. v. Rudolf Wolff & Co., 484 U.S.

97, 102 n.5 (1987). And a person generally establishes

the requisite contacts with the United States by “sufficiently caus[ing] adverse consequences within” the

20

country, such as through “the possible violation of federal” law. Marc Rich, 707 F.2d at 667; cf. McGee v. International Life Insurance Co., 355 U.S. 220, 223

(1957).

Accordingly, a federal grand-jury subpoena issued to

a foreign person is enforceable when the government

can demonstrate “a reasonable probability that ultimately it will succeed in establishing” that the person

has sufficient minimum contacts with the United States

as a whole, including because the person is involved in

possible violations of federal law, “to make it ‘reasonable and just, according to our traditional conception of

fair play and substantial justice’ to require [the person]

to respond to the grand jury’s inquiries.” Marc Rich,

707 F.2d at 670 (citation omitted); see Sealed Case, 932

F.3d at 923. Petitioner agreed with that standard in the

courts below, see Pet. App. 15a, and urges its use in this

Court as well, see Pet. 29-31. And the court of appeals

correctly applied it to determine that the subpoena

against petitioner was enforceable in the particular circumstances of this case, which stem from a grand-jury

investigation into the fraudulent inflation of the value of

an acquired company.

As the court of appeals observed (Pet. App. 15a-16a),

the district court correctly found a reasonable probability that the government would be able to establish the

following facts, all of which have support in the record,

demonstrating possible violations of federal law:

• “[S]everal people who had profited from the sale

of the acquired company used their personal

funds shortly thereafter to help found [petitioner].” Id. at 15a.

21

• “An internal memorandum stated that [petitioner’s] start-up team—which included senior officials from the acquired company whom the

grand jury has already indicted—would invest

substantial amounts of their own money in [petitioner].” Id. at 15a-16a.

• One of petitioner’s “employee[s] also submitted

an affidavit stating that [petitioner] was capitalized through equity contributions.” Id. at 16a.

• “ ‘[T]he financial structure of the entities at issue

was enough to create a likelihood of criminal conduct’ ” because “money from the acquisition may

have been laundered through [petitioner], and

later laundered again through what was initially a

wholly owned subsidiary of [petitioner].” Ibid.

• Petitioner and the subsidiary “at one time shared

the same office in the United States,” and “there

is substantial overlap between the employees of ”

the two companies. Ibid.

The court of appeals agreed that “taken together, these

findings adequately support the district court’s determination that it had in personam jurisdiction over” petitioner. Ibid. And this Court generally does not “undertake to review concurrent findings of fact by two

courts below.” Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 153 (1950)

(citation omitted).

Petitioner errs in suggesting that the court of appeals “effectively craft[ed] a ‘grand jury exception’ to

the Due Process Clause’s personal jurisdiction requirement,” Pet. 24, under which a district court supposedly

may “exercise personal jurisdiction over a corporation

regarding any matter” unrelated to its contacts with the

22

United States, Pet. 22. As the factual findings recounted above make clear, the court relied only on petitioner’s contacts with the United States and possible violations of federal criminal law that are the very focus

of the grand jury’s investigation—thereby satisfying

petitioner’s own requirement that “the subpoena derive[] from the ‘activity or occurrence that takes place

in the forum.’ ” Pet. 26 (brackets omitted) (quoting

Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct.

1773, 1780 (2017) (citation omitted)).

Moreover, the record supports a reasonable probability that the government would establish even more

such contacts:

• The acquiring company—the alleged victim

whose funds became the proceeds of the potential

offense under investigation—is incorporated in

the United States. C.A. Supp. E.R. 3-4.

• The acquired company maintained dual headquarters in the United States and a foreign country. Ibid.

• The grand jury is investigating possible laundering of funds through a wholly owned subsidiary of

petitioner that was headquartered in one State

and registered to do business in another State for

four years. Id. at 50-52, 136.

• Petitioner invested substantial sums in that

United States-headquartered subsidiary, and

sold shares of that subsidiary to investors in the

United States. Id. at 50-52, 89, 98, 107, 116, 125.

• Petitioner listed two United States addresses on

its website for months before service of the Roe

subpoenas, and a United States phone number

and State in the “contact” section of the website

23

for three years before service of those subpoenas.

Id. at 51, 82-84.

• One of petitioner’s founding partners sent an internal email stating that petitioner soon would

have five employees “in the US.” Id. at 51; see id.

at 50-51, 138.

• That same founding partner formatted a business

card with a United States address and phone

number, id. at 51, 86, and petitioner set up a

United States bank account from which that partner was paid, id. at 51.

Petitioner thus errs in suggesting (Pet. 23) that “the

contacts * * * giving rise to jurisdiction are unrelated

to the act that the court is being asked to take.” The

many contacts set forth above are precisely the matters

under investigation by the grand jury and about which

the grand jury’s subpoena sought information. See C.A.

Supp. E.R. 339 (copy of subpoena).

b. The decision below does not conflict with any decision of another court of appeals. Petitioner’s reliance

(Pet. 27-29) on decisions from the Second, Seventh, and

Tenth Circuits is misplaced. As a threshold matter,

none of those cases involved grand-jury subpoenas, and

thus could not conflict with the decision below. See

Gucci America, Inc. v. Weixing Li, 768 F.3d 122, 141

(2d Cir. 2014) (civil discovery subpoena under Federal

Rule of Civil Procedure 45); Leibovitch v. Islamic Republic of Iran, 852 F.3d 687, 689 (7th Cir. 2017) (same);

Application to Enforce Administrative Subpoenas Duces Tecum of the SEC v. Knowles, 87 F.3d 413, 416-417

(10th Cir. 1996) (administrative subpoena duces tecum).

Furthermore, petitioner cites those cases only for

the proposition that to enforce a subpoena, “there must

24

be a nexus between (1) the contacts giving rise to jurisdiction, (2) the claim or offense involved, and (3) the documents or testimony sought in the subpoena.” Pet. 26.

As explained above, that is exactly what both lower

courts found here, and those findings are consistent

with the outcomes in the cases on which petitioner relies. For example, in Knowles, the Tenth Circuit determined that the president of two Bahamian companies

had “purposefully directed his activities on behalf of

[the companies] toward the United States” by visiting

the United States to meet with clients and a shareholder, and by opening a brokerage trading account for

one of the companies in Florida. 87 F.3d at 418, see id.

at 417-418. The court explained that because the Securities and Exchange Commission (SEC) was investigating “whether bank accounts in the names of these two

companies were used to bribe brokers in the United

States * * * in violation of federal securities laws,” id.

at 415, the company president’s “activities [we]re directly related to matters in the underlying SEC investigation,” id. at 418.

Likewise here, petitioner purposefully directed its

activities toward the United States with respect to the

corporate acquisition and potential money-laundering

that the grand jury is investigating. Petitioner had a

wholly-owned subsidiary incorporated in the United

States for years, had officers who worked at times in the

United States, and is under investigation for laundering

funds obtained from the sale of one U.S.-based company

to another. See Pet. App. 15a-16a; see also pp. 20-23,

supra. Those actions “represent a deliberate affiliation

with the forum that render[ed] foreseeable the possibility of being haled into court in the United States at least

as to those specific contacts.” Knowles, 87 F.3d at 419.

25

In any event, all of the cases on which petitioner

relies—as petitioner itself tacitly acknowledges (Pet.

29-31)—apply the same legal framework as the decision

below. See Pet. App. 15a-16a. Petitioner’s challenge

thus ultimately reduces to the contention (Pet. 31) that

the court did not “faithfully apply[]” that uniform standard. That factbound contention does not warrant this

Court’s review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Acting Solicitor General

NICHOLAS L. MCQUAID

Acting Assistant Attorney

General

WILLIAM A. GLASER

Attorney

MAY 2021