Reply Brief — Doe Company, Petitioner v. United States

No. 20-1141

IN THE

Supreme Court of the United States

IN RE GRAND JURY INVESTIGATION,

USAO NO. 2018R01761

(GRAND JURY SUBPOENAS TO PAT ROE)

DOE COMPANY,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

REPLY BRIEF FOR PETITIONER

RICHARD M. STRASSBERG

JAMES D. GATTA

GOODWIN PROCTER LLP

620 8th Avenue

New York, NY 10018

EMILY M. NOTINI

GOODWIN PROCTER LLP

100 Northern Avenue

Boston, MA 02210

June 15, 2021

WILLIAM M. JAY

Counsel of Record

ANDREW KIM

GOODWIN PROCTER LLP

1900 N Street, N.W.

Washington, D.C. 20036

wjay@goodwinlaw.com

(202) 346-4000

Counsel for Petitioner

RULE 29.6 STATEMENT

The Rule 29.6 statement included in the petition for

a writ of certiorari remains accurate.

i

TABLE OF CONTENTS

PAGE

RULE 29.6 STATEMENT ........................................... i

I. This case is an ideal vehicle for resolving

the entrenched circuit split on the first

question presented. ..................................................... 2

II. This case also presents an important

question of personal jurisdiction on which the

circuits are divided. .................................................... 8

CONCLUSION ......................................................... 12

ii

TABLE OF AUTHORITIES

PAGE(S)

CASES

Application to Enforce Admin. Subpoena

Duces Tecum of SEC v. Knowles,

87 F.3d 413 (10th Cir. 1996) .................................. 9

Daimler AG v. Bauman,

571 U.S. 117 (2014) .............................................. 11

Estate of Ungar v. Palestinian Auth.,

412 F. Supp. 2d 328 (S.D.N.Y. 2006) ................... 10

Faltico, In re,

561 F.2d 109 (8th Cir. 1977) .................................. 3

Gill v. Gulfstream Park Racing Ass’n,

399 F.3d 391 (1st Cir. 2005) ................................... 4

Gotham Holdings, LP v.

Health Grades, Inc.,

580 F.3d 664 (7th Cir. 2009) .................................. 4

Grand Jury, In re,

111 F.3d 1066 (3d Cir. 1997) .................................. 3

Grand Jury (Schmidt), In re,

619 F.2d 1022 (3d Cir. 1980) .............................. 3, 6

Gucci Am., Inc. v. Weixing Li,

768 F.3d 122 (2d Cir. 2014) .................................... 9

Kiobel ex rel. Samkalden v.

Cravath, Swaine & Moore LLP,

895 F.3d 238 (2d Cir. 2018) .................................... 5

Leibovitch v. Islamic Republic of Iran,

852 F.3d 687 (7th Cir. 2017) .................................. 9

iii

Marc Rich & Co., A.G., In re,

707 F.2d 663 (2d Cir. 1983) ................................ 8, 9

Montgomery Ward & Co. v.

Zenith Radio Corp.,

673 F.2d 1254 (C.C.P.A. 1982) ............................... 4

Perlman v. United States,

247 U.S. 7 (1918) ............................ 1, 2, 3, 4, 6, 7, 8

RJR Nabisco, Inc. v. European Cmty.,

136 S. Ct. 2090 (2016) ............................................ 8

Sealed Case, In re,

107 F.3d 46 (D.C. Cir. 1997) .................................. 6

Sealed Case, In re,

832 F.2d 1268 (D.C. Cir. 1987) ........................ 5, 10

United States v.

First Nat’l City Bank,

396 F.2d 897 (2d Cir. 1968) .................................... 5

Walden v. Fiore,

571 U.S. 277 (2014) .............................................. 10

iv

REPLY BRIEF FOR PETITIONER

________________________

Tellingly, the government says little about the

certworthiness of the two questions presented.

The government tries to reframe the first question

presented to obscure the clear circuit split, using

reasoning that the court of appeals never adopted.

Contrary to the government’s argument, the Ninth

Circuit did not dismiss petitioner’s Perlman appeal

because it involved a question of personal jurisdiction; instead, the court dismissed the appeal because

it did not present a question of privilege. The Ninth

Circuit’s privilege-or-nothing approach to Perlman

conflicts directly with that of seven circuits.

Rather than confront the split, the government argues that it will win if certiorari is granted, or that

petitioner will lose on the merits of its appeal if this

Court reverses. Neither argument is correct, or a

reason not to resolve the split that this case implicates.

The government never addresses the most glaring

flaw with its position: without Perlman, petitioner

may never have the opportunity to seek appellate review of the underlying personal jurisdiction issues.

The government says that petitioner should wait for

a final judgment to appeal, but there may never be a

final judgment from which petitioner can appeal.

If this Court resolves the split and sustains appellate jurisdiction, there is no reason to assume that

petitioner would lose on the merits of personal jurisdiction. The Roe Subpoenas at issue are far more jurisdictionally intrusive than the Company Subpoena,

which undermines the government’s attempt to ar-

2

gue that the outcome on one foreordains the outcome

on the other.

On the second question, the government seeks to

obviate the relevant split by rewriting what the

Ninth Circuit said about the question presented.

Three circuits require a link between the relevant

jurisdictional contacts used to justify the subpoenas

and the evidence the subpoenas demand. The Ninth

Circuit requires no nexus; it lets the suspicion of offense alone dictate the scope of personal jurisdiction,

contravening this Court’s precedents.

This Court should grant certiorari on both questions presented.

I. This case is an ideal vehicle for resolving the

entrenched circuit split on the first question

presented.

A. The court of appeals thought it lacked jurisdiction under Perlman not because it thought personal

jurisdiction issues specifically were excluded, but because it believed Perlman allowed review of only

claims of privilege and nothing else. Indeed, the government argued below that Perlman required some

sort of privilege—not that personal jurisdiction issues were uniquely unsuited for Perlman review.

C.A. Gov’t Br. 8. The Ninth Circuit agreed, acknowledging the split. The government now argues (at 13)

that “the decision below does not conflict with the decisions of any other courts of appeals” on whether

personal jurisdiction, specifically, is suitable for a

Perlman appeal. But that is not the question presented, because the Ninth Circuit adopted the broader privilege-or-nothing reasoning as the government

asked.

3

On the question decided and presented, there

plainly is a split. The majority of circuits reject

privilege-or-nothing as the standard; the First,

Third, Sixth, Seventh, Eighth, Tenth, and Federal

Circuits understand Perlman as allowing appeals on

privilege and more. Pet. 13-16.

The Third Circuit, for example, has held that

Perlman review stretches beyond just property and

privilege interests. In re Grand Jury, 111 F.3d 1066,

1074-75 (3d Cir. 1997) (noting that the court “need

not characterize [appellants’] interests as [a privilege] in order to find standing,” given “Schmidt’s reasoning, and particularly its rejection of restricting

standing solely to property or privilege interests”).

That includes constitutional interests, such as the

associational rights at issue in In re Faltico, 561 F.2d

109 (8th Cir. 1977), and the due process interest

here. The government says that the Third Circuit

limits Perlman review to instances where “the subpoenas will unduly burden petitioner’s business or

employees,” Opp. 14, but the Third Circuit has explicitly said otherwise. In re Grand Jury (Schmidt),

619 F.2d 1022, 1026-27 (3d Cir. 1980) (noting that it

is “not [] viable” to limit Perlman just to cases involving invasions of “property interests or privileges,”

and explaining that infringements of liberty interests

may be covered as well); In re Grand Jury, 111 F.3d

at 1074 (Perlman “applies beyond [the] narrow factual and legal circumstances” presented in Schmidt).

And even if Schmidt said what the government says,

it would still conflict with the Ninth Circuit’s privilege-only bright-line rule.

The government also wrongly claims (at 14) that

the Seventh and Federal Circuit’s approach to Perl-

4

man is in harmony with the Ninth’s. In the Seventh

and Federal Circuits, a contractual or similar interest in confidentiality is sufficiently important for

immediate appellate review under Perlman. Gotham

Holdings, LP v. Health Grades, Inc., 580 F.3d 664,

665-66 (7th Cir. 2009) (Perlman appeal of disclosure

that would breach confidentiality provision in arbitration agreement); Montgomery Ward & Co. v. Zenith Radio Corp., 673 F.2d 1254, 1256, 1259 & n.1

(C.C.P.A. 1982) (Perlman appeal where a disclosure

would breach “guarantees of confidentiality”). Such

an interest would not satisfy the Ninth Circuit’s

Perlman standard, as contractual confidentiality is

merely a “preference for secrecy” that “does not create a legal bar to disclosure.” Gotham, 580 F.3d at

665.

Like the Ninth Circuit, the government mistakes

the frequency with which privilege appears in Perlman cases as a privilege requirement. Opp. 15 (citing Pet. App. 12a-13a). As the First Circuit, citing a

leading jurisdictional treatise, explains: Claims of

privilege are sufficient and “are by far the most

common,” but not necessary, as Perlman “requires

only that the appellant have ‘a significant interest in

the matters involved.’” Gill v. Gulfstream Park Racing Ass’n, 399 F.3d 391, 399 (1st Cir. 2005) (quoting

15B Charles Alan Wright et al., Federal Practice &

Procedure § 3914.23, at 156 (2d ed. 1991)).

B. The government’s two vehicle arguments are

unavailing. First, the government says (at 15-16)

this case is not a suitable vehicle because the court of

appeals has already determined that there is personal jurisdiction over petitioner, and that determination carries over to the merits of petitioner’s appeal

5

of the Roe Subpoenas. Not only are the merits irrelevant to the split over whether courts of appeals

should get to review the merits, the government’s

portrayal of the merits is wrong. The Ninth Circuit

never signaled how it would rule on the Roe Subpoenas. Nor is the court’s treatment of the narrower

Company Subpoena a valid proxy. The Second Roe

Subpoena asks for virtually everything that Roe has

on petitioner, Pet. App. 29a. Such a sweeping demand would effectively require general jurisdiction—

something the government has not argued, C.A.

Gov’t Br. 27, and cannot establish.

The government also argues that there is no need

to consider whether the district court had personal

jurisdiction over petitioner for the Roe Subpoenas.

According to the government, because Roe brought

her laptop and cell phone into the United States, it

can assert “tag” jurisdiction over those devices by

subpoenaing Roe in her personal capacity.1 Opp. 17.

But again, there is no reason to think that the Ninth

Circuit would agree with the government’s view on

the merits, considering that the only court to consider a comparable attempt to evade limits on personal

jurisdiction over a corporation has rejected the government’s position. In re Sealed Case, 832 F.2d

1268, 1273 (D.C. Cir. 1987) (observing that “service

1 Neither Kiobel ex rel. Samkalden v. Cravath, Swaine & Moore

LLP, 895 F.3d 238 (2d Cir. 2018), nor United States v. First National City Bank, 396 F.2d 897 (2d Cir. 1968), says otherwise.

Opp. 18. Kiobel involved documents that had already been produced in U.S. litigation by a company with an extensive U.S.

presence. Id. at 241. First National was a case involving

“American banks with branches or offices in foreign jurisdictions,” 396 F.2d at 898, not foreign corporations whose employees are served with process while visiting the United States.

6

of a subpoena duces tecum on a corporate officer vacationing in the United States would not allow the

Independent Counsel access to corporate records absent proof that a United States court had jurisdiction

over the corporation itself”), abrogated on other

grounds by Braswell v. United States, 487 U.S. 99

(1988); see also Pet. 19 n.6.

Second, the government argues that Perlman review is not available here because Roe is a “highranking employee” and not a disinterested third party who might produce petitioner’s documents for fear

of contempt. Opp. 16. The government even falsely

states that Roe “has not demonstrated a willingness

to fully comply with the subpoenas.” Opp. 16. That

is a misrepresentation, pure and simple.

Roe,

through her separate counsel, has repeatedly informed the district court that she intends to follow

its disclosure orders. C.A. ER 209. Indeed, after she

was threatened with contempt, Roe agreed to a production schedule, which would have obligated her to

produce all relevant, non-privileged documents in a

month’s time; she halted production only after petitioner obtained a stay of the district court’s order.

C.A. ER 11-12; C.A. ER 147-48.

Neither Roe’s employment nor her rank is dispositive as to whether she is sufficiently “disinterested”

to allow the company to assert its important interests in a Perlman appeal. Schmidt, 619 F.2d at

1024-25 (Perlman review may apply for “even an

employee”); e.g., In re Sealed Case, 107 F.3d 46, 48

(D.C. Cir. 1997) (considering the merits of a Perlman

appeal brought by a company challenging a subpoena

directed at the company’s vice president). Thus, despite full briefing on “disinterestedness,” the Ninth

7

Circuit did not adopt the government’s position. Instead, it deliberately chose to dismiss petitioner’s

Perlman appeal on a ground on which the circuits

are divided. Pet. App. 12a-13a.

C. Much of the government’s brief is devoted to

the merits of the first question presented. The government argues that pre-disclosure appellate review

under Perlman is appropriate only when “disclosure

to the grand jury would irretrievably destroy [a] privilege or protection.” Opp. 12. The government says

that petitioner, by contrast, faces no irretrievable

loss and thus should await final judgment before appealing. Id.

But as this Court pointed out in Perlman more

than a century ago, there may never be a final judgment, and the order of disclosure may prove to be effectively final. Perlman v. United States, 247 U.S. 7,

13 (1918) (rejecting the government’s position that

the appeal is interlocutory to a proceeding “not yet

brought and depending upon [the government] to be

brought”). The government says that petitioner’s opportunity to appeal will surely come, but it never

says when petitioner can appeal. Nor does it posit

that the grand jury can “unsee” evidence that was

improperly obtained from a foreign citizen.

The government claims that, because the grand jury has “historically broad investigative power,” ordering disclosure that skirts the usual rules of personal jurisdiction “works no . . . ‘mischief.’” Opp. 11.

But the government does not explain its conclusory

assertion, which is wrong in any event. The mischief

in cases like this one is two-fold. First, the grand jury can claim extraterritorial reach that violates the

Due Process Clause, compelling evidence about an

8

entirely foreign corporation from a foreign citizen

who happens to visit the United States while working for the corporation. Second, if the Ninth Circuit

is correct, the grand jury’s extraterritorial arrogation

is entirely insulated from any sort of meaningful appellate review. That insulation is exactly what

Perlman rejected. 247 U.S. at 13 (rejecting the argument that “Perlman was powerless to avert the

mischief of the order but must accept its incidence

and seek a remedy at some other time and in some

other way”). The power to seek “every man’s evidence” does not override the “basic premise of our legal system that, in general, ‘United States law governs domestically but does not rule the world.’” RJR

Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090,

2100 (2016) (quoting Microsoft Corp. v. AT&T Corp.,

550 U.S. 437, 454 (2007)). “Every man’s evidence”

does not encompass everyone in the world.

II. This case also presents an important question of personal jurisdiction on which the

circuits are divided.

A. The government does not deny that, in the

Second, Seventh, and Tenth Circuits, the relevant

inquiry for personal jurisdiction to enforce subpoenas

is whether there is “a nexus between (1) the contacts

giving rise to jurisdiction, (2) the claim or offensive

involved, and (3) the documents or testimony sought

in the subpoena.” Opp. 24. But the government incorrectly states that the Ninth Circuit followed the

same approach. To the contrary, the Ninth Circuit’s

position is that “the occurrence of the offense itself”

is enough to “support a claim of jurisdiction,” Pet.

App. 15a (quoting In re Marc Rich & Co., A.G., 707

F.2d 663, 667-68 (2d Cir. 1983)), and, because the

9

suspected offense, if proven, will link petitioner to

the United States, that suspicion allows the grand

jury’s investigative powers to go beyond the sparse

jurisdictional contacts.

There can be no dispute that the Company Subpoena does not ask about the contacts giving rise to

jurisdiction. The purported contacts on which the

Ninth Circuit relied concerned petitioner’s investment in a foreign corporation with U.S. activity, and

the sharing of office space with that foreign corporation. Pet. App. 16a. The Company Subpoena does

not seek any information about that relationship. In

the Second, Seventh, and Tenth Circuits, therefore,

the Company Subpoena would have been unenforceable for lack of relevant jurisdictional contacts.

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

689 (7th Cir. 2017); Gucci Am., Inc. v. Weixing Li,

768 F.3d 122, 141 (2d Cir. 2014); Application to Enforce Admin. Subpoena Duces Tecum of SEC v.

Knowles, 87 F.3d 413, 418 (10th Cir. 1996). Even

Marc Rich did not allow the suspicion of an offense

alone to justify the exercise of personal jurisdiction;

the subpoena in that case related to the foreign corporation’s relationship with its U.S. subsidiary. 707

F.2d at 665. Not so here. There is therefore a split

on this important jurisdictional issue.

B. The government tries to distinguish the conflicting decisions on which petitioner relies as decisions involving civil subpoenas. Opp. 23. But the

personal jurisdiction inquiry is the same whether the

subpoena is issued by a civil litigant or a grand jury;

only the burden of proof is different. Indeed, the

Second Circuit in Marc Rich borrowed from civil cases (including International Shoe) to assess the pro-

10

priety of a grand jury subpoena. And civil decisions

are likewise informed by criminal personal jurisdiction rulings; at least one court has cited a grand jury

subpoena case in deciding whether to enforce a civil

subpoena. Estate of Ungar v. Palestinian Auth., 412

F. Supp. 2d 328, 331 (S.D.N.Y. 2006) (citing Sealed

Case, 832 F.2d at 1272-73), aff’d, 332 F. App’x 643

(2d Cir. 2009).

C. In a transparent attempt to cloud the split

with case-specific issues, the government introduces

facts that are irrelevant to the jurisdictional inquiry

and, in any event, are not the facts on which the

courts of appeals relied. Opp. 22-23. The relevant

inquiry here is whether contacts relating to petitioner’s work with the Firm, a foreign corporation that

was formerly a subsidiary, are sufficient to establish

personal jurisdiction to enforce a subpoena that asks

nothing about that relationship, merely on the government’s suspicion that there may be some link between those contacts and offenses against the United

States. Pet. 26-31.

Most of the facts that the government offers are

not jurisdictionally relevant because (1) they are not

petitioner’s contacts,2 (2) there is no evidence that

those contacts occurred in the United States, or (3)

2 Opp. 20, 21 (discussing individuals who allegedly “used their

personal funds” “to help found [petitioner]” or “invest[ed] substantial amounts of their own money in [petitioner]”). But see

Walden v. Fiore, 571 U.S. 277, 284 (2014) (personal jurisdiction

“must arise out of contacts that the ‘defendant himself’ creates

with the forum State”).

11

they are not contacts at all, just the government’s

musings about whether a crime has occurred.3

The remaining contacts—all of which relate to the

activities of petitioner’s purported subsidiaries, and

on which the government principally relies—

demonstrate just how far the Ninth Circuit departed

from the fundamental personal jurisdiction principles applied by this Court and other circuits. The

government proposes to use a parent corporation’s

contacts with purported U.S.-affiliated subsidiaries

as a reason to pry into other aspects of the parent

corporation’s affairs that are not related to the contacts with subsidiaries.4 That prying cannot be done

under general jurisdiction, because this Court

squarely rejected the proposition that foreign corporations are subject to general jurisdiction “whenever

they have an in-state subsidiary or affiliate,” Daimler AG v. Bauman, 571 U.S. 117, 136 (2014), and the

government never argued alter ego or any other theory allowing for the imputation of contacts. And the

Ninth Circuit’s sister circuits would rule out specific

jurisdiction, as the Company Subpoena asks for

3 E.g., Opp. 21 (arguing “[t]he financial structure of the entities

at issue was enough to create a likelihood of criminal conduct”).

4 The government raises allegations about a different subsidiary of petitioner—not the Firm—that stopped operating in

2015, and went out of existence in 2017. See C.A. ER 235. The

alleged “five employees ‘in the US,’” “business card with a United States address and phone number,” and “United States bank

account” all relate to that subsidiary. Opp. 23. Critically, the

court of appeals makes no mention of that subsidiary in its jurisdictional analysis, likely because the government did not offer any coherent theory to link that subsidiary to the offenses

being investigated by the grand jury.

12

nothing related to the potential jurisdictional contacts.

This Court should grant certiorari to ensure that

the Ninth Circuit’s anomalous approach to personal

jurisdiction does not persist, and to confirm, as the

majority of circuits have done, that the same due

process rules apply to subpoenas (grand jury or otherwise) and every other form of process. The government’s inchoate suspicion is no basis to require a

foreign corporation to answer for matters that are

entirely unrelated to its presence in the United

States.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

RICHARD M. STRASSBERG

JAMES D. GATTA

GOODWIN PROCTER LLP

620 8th Avenue

New York, NY 10018

EMILY M. NOTINI

GOODWIN PROCTER LLP

100 Northern Avenue

Boston, MA 02210

June 15, 2021

WILLIAM M. JAY

Counsel of Record

ANDREW KIM

GOODWIN PROCTER LLP

1900 N Street, N.W.

Washington, D.C. 20036

wjay@goodwinlaw.com

(202) 346-4000

Counsel for Petitioner