Amicus Curiae Brief — Gurbir S. Grewal, Attorney General of New Jersey, Petitioner v. Defense Distributed, et al.
Supreme Court briefFeb 24, 2021
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No. 20-984
IN THE
Supreme Court of the United States
GURBIR S. GREWAL,
Attorney General of New Jersey,
Petitioner,
v.
DEFENSE DISTRIBUTED, et al.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
BRIEF FOR THE STATES OF NEW YORK, CALIFORNIA,
COLORADO, CONNECTICUT, DELAWARE, HAWAI‘I,
ILLINOIS, MAINE, MARYLAND, MASSACHUSETTS,
MICHIGAN, MINNESOTA, NEVADA, NEW MEXICO,
OREGON, PENNSYLVANIA, RHODE ISLAND,
VERMONT, VIRGINIA, AND WASHINGTON, AND
THE DISTRICT OF COLUMBIA AS AMICI CURIAE
IN SUPPORT OF PETITIONER
LETITIA JAMES
Attorney General
State of New York
BARBARA D. UNDERWOOD*
Solicitor General
ANISHA S. DASGUPTA
Deputy Solicitor General
PHILIP J. LEVITZ
Assistant Solicitor General
28 Liberty Street
New York, New York 10005
(212) 416-8020
barbara.underwood@ag.ny.gov
*Counsel of Record
(Counsel listing continues on signature pages.)
i
TABLE OF CONTENTS
Page
Table of Authorities ...................................................... ii
Introduction and Interests of Amici ..............................1
Summary of Argument ..................................................3
Argument ........................................................................5
I. Cease-and-Desist Letters Sent Out of State
Are a Critical Tool for States to Enforce
Their Own Laws and Protect Their Own
Citizens..................................................................5
II. Principles of State Sovereignty and
Federalism That This Court Has Recognized
Prohibit Courts from Exercising Personal
Jurisdiction Over Out-of-State Officials
Based Only on Cease-and-Desist Letters. .........11
A. State Officials Do Not Establish
Minimum Contacts with Another State
Merely by Sending a Cease-and-Desist
Letter to a Recipient in That State. ..............12
B. It Offends State-Sovereignty and
Federalism Principles for Courts to
Exercise Personal Jurisdiction over Outof-State Officials Who Are Enforcing
Their Own State’s Laws from Their Own
States. ............................................................14
Conclusion.....................................................................21
ii
TABLE OF AUTHORITIES
Cases
Page(s)
Agey v. American Liberty Pipe Line Co., 141 Tex.
379 (1943) ............................................................... 6
Bernhardt v. Polygraphic Co. of Am., 350 U.S.
198 (1956) ............................................................. 18
Bishop v. Wood, 426 U.S. 341 (1976) ........................ 17
Bristol-Myers Squibb Co. v. Superior Court of
Cal., San Francisco Cty., 137 S. Ct. 1773
(2017) .......................................................... 11,14,18
Charles Scribner’s Sons v. Marrs, 114 Tex. 11
(1924) ...................................................................... 7
Commonwealth v. Johnson, 423 S.W.3d 718 (Ky.
2014) ....................................................................... 5
Defense Distributed v. Attorney General of N.J.,
972 F.3d 193 (3d Cir. 2020).................................. 20
Disciplinary Counsel v. Dann, 134 Ohio St. 3d
68, 2012-Ohio-5337 ................................................ 6
Ex parte Young, 209 U.S. 123 (1908) .......................... 5
Exxon Mobil Corp. v. Attorney General, 479
Mass. 312 (2018)................................................... 17
In re Criminal Investigation No. 1, 75 Md. App.
589 (1988) ............................................................... 7
Secretary of Admin. & Fin. v. Attorney General,
367 Mass. 154 (1975).............................................. 6
Shepard v. Attorney General, 409 Mass. 398
(1991) ...................................................................... 7
Florida ex rel. Shevin v. Exxon Corp., 526 F.2d
266 (5th Cir. 1976) ................................................. 5
iii
Cases
Page(s)
Stroman Realty, Inc. v. Wercinski, 513 F.3d 476
(5th Cir. 2008) ........................................................ 8
Synanon Found., Inc. v. California, 444 U.S.
1307 (1979) ............................................................. 5
United States v. Hohri, 482 U.S. 64 (1987) .............. 17
Walden v. Fiore, 571 U.S. 277 (2014)........................ 13
World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286 (1980) ............................................. passim
Laws
Mass. Gen. Laws Ann. ch. 93A
§ 2 ............................................................................ 6
§ 4 ......................................................................... 6,7
§ 6 ......................................................................... 6,7
Me. Rev. Stat. Ann.
tit. 5
§§ 194-194K ........................................................... 6
§ 207 ...................................................................... 6
§ 209 ...................................................................... 7
§ 211 ................................................................... 6,7
tit. 10
§§ 1101-1110 ......................................................... 6
Miss. Code Ann.
§ 75-21-1 ................................................................. 6
§ 75-21-7 ................................................................. 6
N.J. Stat. Ann.
§ 2A:54A-1 .............................................................. 6
§ 2C:33-12 ............................................................... 6
N.M. Stat. Ann.
§ 57-12-3 ................................................................. 6
§ 57-12-8 ................................................................. 7
iv
Laws
Page(s)
N.M. Stat. Ann. (cont’d)
§ 57-12-11 ............................................................... 7
§ 57-12-12 ............................................................... 7
§ 57-22-9–57-22.9.2 ................................................ 6
§ 57-22-9.1 .............................................................. 7
N.Y. Exec. Law § 63(12) ........................................... 6,7
N.Y. Gen. Bus. Law
§§ 342-343 ............................................................... 6
§ 349 ..................................................................... 6,7
§ 352(2) ................................................................... 7
§ 353 ........................................................................ 7
N.Y. Not-for-Profit Corp. Law
§ 112 ........................................................................ 6
§ 115 ........................................................................ 6
§ 1101 ...................................................................... 6
Or. Rev. Stat. Ann. § 180.070...................................... 7
Tex. Bus. & Com. Code Ann.
§ 17.47 ..................................................................... 6
§ 17.58 ..................................................................... 6
§ 17.60 ..................................................................... 6
§ 17.61 .................................................................. 6,7
Tex. Civ. Prac. & Rem. Code Ann. ch. 125 ................. 6
Wash. Rev. Code Ann.
§ 19.86.020 .............................................................. 6
§ 19.86.040 .............................................................. 6
§ 19.86.080 .............................................................. 7
§ 19.86.100 .............................................................. 7
§ 19.86.110 ........................................................... 6,7
Rules
N.D. Tex. Local Civ. R. 83.10 .................................... 19
W.D. Tex. Local R. AT-2 ............................................ 19
v
Miscellaneous Authorities
Page(s)
Brendan J. Lyons, New York AG Has Sent 1,686
Cease and Desist Orders During Pandemic,
Albany Times Union (May 14, 2020),
https://www.timesunion.com/news/article/New
-York-AG-has-sent-1-686-cease-and-desist15270000.php ......................................................... 8
Cal. Office of Att’y Gen., Press Release, Attorney
General Becerra and Secretary of State
Padilla Send Cease and Desist Letters on
Ballot Drop Boxes (Oct. 12, 2020),
https://oag.ca.gov/news/press-releases/
attorney-general-becerra-and-secretary-statepadilla-send-cease-and-desist ................................ 8
D.C. Office of Att’y Gen., Press Release, AG
Racine and 33 Attorneys General Urge
Amazon, Craigslist, eBay, Facebook, and
Walmart to Crack Down on Online Price
Gouging (Mar. 25, 2020), https://oag.dc.gov/
release/ag-racine-and-33-attorneys-generalurge-amazon ......................................................... 10
Jeremy Kohler, St. Louis County Has Issued
Dozens of Cease-and-Desist Letters to
Restaurants Flouting County Health Order,
St. Louis Post-Dispatch (Nov. 24, 2020),
https://www.stltoday.com/news/local/govt-andpolitics/st-louis-county-has-issued-dozens-ofcease-and-desist-letters-to-restaurantsflouting-county/article_22f42cfa-a849-5ae5b727-e0baf6419e2b.html ........................................ 8
vi
Miscellaneous Authorities
Page(s)
Mich. Dep’t of Att’y Gen., Press Release, AG
Nessel Takes Action to Ensure Fair & Free
Elections (Nov. 13, 2020),
https://www.michigan.gov/ag/0,4534,7-35992297_47203-545014--,00.html ............................. 8
Mo. Office of Att’y Gen., Press Release, AG
Schmitt Sends Cease and Desist Letter to
Branson-Area Business for Inflated Mask
Prices (Apr. 15, 2020), https://ago.mo.gov/
home/news/2020/04/15/ag-schmitt-sendscease-and-desist-letter-to-branson-areabusiness-for-inflated-mask-prices ......................... 8
National Ass’n of Att’ys Gen., State Attorneys
General: Powers and Responsibilities (4th ed.
2018) .................................................................. 5,11
N.Y. Office of Att’y Gen., Press Release, Attorney
General James Orders Alex Jones to Stop
Selling Fake Coronavirus Treatments (Mar.
12, 2020), https://ag.ny.gov/press-release/2020/
attorney-general-james-orders-alex-jonesstop-selling-fake-coronavirus-treatments ........... 10
N.Y. Office of Att’y Gen., Press Release, Attorney
General James Orders Companies to Stop
Online Sale of E-Cigarettes to Minors and
New Yorkers (July 20, 2020),
https://ag.ny.gov/press-release/2020/attorneygeneral-james-orders-companies-stop-onlinesale-e-cigarettes-minors-and ............................... 10
vii
Miscellaneous Authorities
Page(s)
N.Y. Office of Att’y Gen., Press Release, Attorney
General James Orders Companies to Stop
Selling Fake Treatments for Coronavirus
(Mar. 11, 2020), https://ag.ny.gov/pressrelease/2020/attorney-general-james-orderscompanies-stop-selling-fake-treatmentscoronavirus ........................................................... 10
N.Y. Office of Att’y Gen., Press Release, Attorney
General James Orders Craigslist to Remove
Posts Selling Fake Coronavirus Treatments
and Exorbitantly-Priced Items (Mar. 20,
2020), https://ag.ny.gov/press-release/2020/
attorney-general-james-orders-craigslistremove-posts-selling-fake-coronavirus ................ 10
Pa. Office of Att’y Gen., Press Release, AG
Shapiro: Price Gouging Complaints Top 5,000
Tips (June 5, 2020),
https://www.attorneygeneral.gov/takingaction/covid-19/ag-shapiro-price-gougingcomplaints-top-5000-tips/ ...................................... 8
William P. Marshall, Break Up the Presidency?
Governors, State Attorneys General, and
Lessons from the Divided Executive, 115 Yale
L.J. 2446 (2006) ...................................................... 5
INTRODUCTION AND INTERESTS OF AMICI
The States of New York, California, Colorado,
Connecticut, Delaware, Hawai‘i, Illinois, Maine,
Maryland, Massachusetts, Michigan, Minnesota,
Nevada, New Mexico, Oregon, Pennsylvania, Rhode
Island, Vermont, Virginia, and Washington, and the
District of Columbia file this brief as amici curiae in
support of New Jersey Attorney General Gurbir
Grewal’s petition for a writ of certiorari. 1 Whether a
nonresident state official who is enforcing his own state
laws subjects himself to personal jurisdiction in another
State when he sends a single cease-and-desist letter
from his home State to a resident of the forum State—
the question presented here—is important to state and
local officials across the country. Amici submit this
brief to underscore that the Fifth Circuit failed to
account for critical state-sovereignty and federalism
considerations when it answered that question in the
affirmative in a decision that departs from the rulings
of this Court and multiple courts of appeals.
State Attorneys General like Attorney General
Grewal serve as the chief legal officers for their States,
protecting state residents and interests by enforcing
laws concerning consumer protection, antitrust, civil
rights, environmental protection, health care, employment, and public safety. In exercise of those functions,
they—like other state and local officials—routinely
send cease-and-desist letters. Moreover, in the internet
age, state and local officials increasingly must direct
such cease-and-desist letters out of State, to businesses
1 Pursuant to this Court’s Rule 37.2(a), all parties received
advance notice of the filing of this amicus brief. Respondents
consented to this filing on fewer than ten days’ notice.
2
and other entities like Defense Distributed that operate
online across state lines and may be simultaneously
violating the laws of many States.
This Court’s precedents—and the federalism principles underpinning them—do not permit the recipient of
a cease-and-desist letter from an out-of-state official to
sue the official in the recipient’s home State when the
letter was sent from the official’s home State, and the
official is simply enforcing his own State’s laws as
applied to the recipient’s activities in the official’s home
State. Permitting suits in such circumstances, as the
Fifth Circuit did here, forces a state official to risk
burdensome and expensive lawsuits in a foreign forum
as the cost of protecting his own State’s residents from
an entity that is reaching into the official’s State and
violating that State’s laws. Putting a state official to
that choice undermines state sovereignty and harms
the public interests of the official’s State by chilling
legitimate law-enforcement efforts or else dramatically
increasing the costs of those efforts, including by encouraging premature lawsuits against States in courts that
lack expertise and a stake in the relevant State’s law.
The amici States have a compelling interest in
protecting the traditional authority of their Attorneys
General and other state officials to investigate and
combat violations of state laws designed for the protection of their citizens. Respect for state sovereignty and
federalism dictates that the courts in foreign States
must not needlessly impede the core law-enforcement
functions of other States’ officials.
3
SUMMARY OF ARGUMENT
I. State Attorneys General are responsible for
enforcing the laws that their States have enacted for
the protection of their citizens. To ensure that Attorneys
General can fulfill this crucial state-law duty, States
vest their Attorneys General with discretion to use a
wide range of investigatory and enforcement tools.
Among the most common and cost-effective enforcement tools employed by Attorneys General are ceaseand-desist letters demanding that parties who appear
to be violating state law cease such violations. Other
state and local enforcement officials also routinely
utilize cease-and-desist letters. As businesses and
organizations increasingly operate across state lines—
particularly online—and entities in one State may
violate the laws of another State through their online
marketing or other practices, state and local officials
cannot adequately protect their residents from violations of their own laws without sending cease-anddesist letters to entities based in other States.
II. As “coequal sovereigns in a federal system,”
World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 292 (1980), States must be accorded “the sovereign
power to try causes in their courts,” id. at 293. Thus, a
court should not exercise personal jurisdiction over an
out-of-state official whose only contact with the forum
State is the sending of a cease-and-desist letter to
enforce the law of the official’s own State against an
entity that is reaching into the official’s State. In these
circumstances, the out-of-state official has not established the minimum contacts with the forum State that
the Due Process Clause requires. The official is not
availing herself of the privilege of conducting activities
in the State where the recipient of the letter happens
4
to be located—for example, by invoking the protections
or benefits of that other State’s laws. Instead, the state
official is simply executing her state-law duty to enforce
the laws of her own State.
In determining whether an exercise of personal
jurisdiction is consistent with due process, “the reasonableness of asserting jurisdiction over the defendant”
also “must be assessed in the context of our federal
system of government.” Id. (quotation marks omitted).
And principles of state sovereignty and federalism
make it unreasonable for courts to exercise personal
jurisdiction over an out-of-state official who is enforcing
her own State’s laws from her own State. Allowing such
suits would seriously impair the ability of state officials
to protect their residents from those who would violate
their laws from an out-of-state perch. If state officials’
mere communication with those potential lawbreakers
can cause the officials to be haled into court in a foreign
jurisdiction, they will become embroiled in burdensome
and costly suits that will take place in geographically
distant courts lacking expertise and an interest in the
relevant State’s law. And if, to avoid such litigation,
state officials refrain from communicating with out-ofstate lawbreakers, they will forego an important means
of protecting their residents from harms that originate
out of State. State-sovereignty and federalism interests
counsel strongly against imposing this choice on state
officials.
5
ARGUMENT
I.
Cease-and-Desist Letters Sent Out of State
Are a Critical Tool for States to Enforce Their
Own Laws and Protect Their Own Citizens.
State Attorneys General are charged with investigating and remediating matters of public concern
affecting their States. Carried over from English
common law, the office of state Attorney General has
existed since this country’s founding. 2
The specific contours of each state Attorney
General’s authority are a core matter of state concern
dictated by each State’s own common law, constitution,
and statutes. See, e.g., Florida ex rel. Shevin v. Exxon
Corp., 526 F.2d 266, 268-74 (5th Cir. 1976). Although
their powers vary, state Attorneys General traditionally serve as their State’s “chief law enforcement
officer,” with responsibility for safeguarding the public
interest through, among other things, investigations
and enforcement proceedings to halt violations of state
law. See, e.g., Synanon Found., Inc. v. California, 444
U.S. 1307, 1307 (1979) (Rehnquist, C.J., in chambers);
Ex parte Young, 209 U.S. 123, 176 (1908). 3 The work of
2 See William P. Marshall, Break Up the Presidency?
Governors, State Attorneys General, and Lessons from the Divided
Executive, 115 Yale L.J. 2446, 2449-50 (2006); see also Nat’l Ass’n
of Att’ys Gen., State Attorneys General: Powers and Responsibilities 1, 4-7 (4th ed. 2018) (NAAG, Attorneys General).
3 See also, e.g., Commonwealth v. Johnson, 423 S.W.3d 718,
724 (Ky. 2014) (Attorney General is Commonwealth’s “chief law
enforcement officer” whose power “is not limited to that which is
expressly conferred [by statute] but also includes that which is
necessary to accomplish the things which are expressly authorized”); Disciplinary Counsel v. Dann, 134 Ohio St. 3d 68, 2012-
6
Attorneys General “touches upon virtually all areas of
our state government.” Disciplinary Counsel v. Dann,
134 Ohio St. 3d 68, 2012-Ohio-5337, ¶ 23 (per curiam).
A principal responsibility of state Attorneys
General is protecting their State’s citizens from violations of state law by businesses and organizations
operating in the State. State laws charge Attorneys
General with guarding against a broad range of unfair
and illegal activities, such as fraud, 4 anticompetitive
conduct, 5 improper practices by charitable organizations, 6 and maintenance of a public nuisance. 7
To ensure that Attorneys General can fulfill these
important state-law duties, States have long vested
their Attorneys General with broad discretion to use a
Ohio-5337, ¶ 23 (per curiam) (Attorney General is “chief law officer
of the state”); Secretary of Admin. & Fin. v. Attorney General, 367
Mass. 154, 159 (1975) (Attorney General is “chief law officer of the
commonwealth”); Agey v. American Liberty Pipe Line Co., 141 Tex.
379, 382 (1943) (“The Attorney General is the chief law officer of
the State, and it is incumbent upon him to institute in the proper
courts proceedings to enforce or protect any right of the public that
is violated.”).
4 See, e.g., Me. Rev. Stat. Ann. tit. 5, §§ 207, 211; Mass. Gen.
Laws Ann. ch. 93A, §§ 2, 4, 6; N.M. Stat. Ann. § 57-12-3; N.Y. Exec.
Law § 63(12); N.Y. Gen. Bus. Law § 349; Tex. Bus. & Com. Code
Ann. §§ 17.47, 17.58, 17.60, 17.61; Wash. Rev. Code Ann.
§§ 19.86.020, 19.86.110.
5 See, e.g., Me. Rev. Stat. Ann. tit. 10, §§ 1101-1110; Miss.
Code Ann. §§ 75-21-1, 75-21-7; N.Y. Gen. Bus. Law §§ 342-343;
Wash. Rev. Code Ann. § 19.86.040.
6 See, e.g., Me. Rev. Stat. Ann. tit. 5, §§ 194-194K; N.M. Stat.
Ann. §§ 57-22-9–57-22-9.2; N.Y. Not-for-Profit Corp. Law §§ 112,
115(b), 1101.
7 See, e.g., N.J. Stat. §§ 2A:54A-1, 2C:33-12; Tex. Civ. Prac. &
Rem. Code Ann. ch. 125.
7
wide array of investigatory and enforcement tools. See,
e.g., Shepard v. Attorney General, 409 Mass. 398, 40103 (1991); Charles Scribner’s Sons v. Marrs, 114 Tex.
11, 27 (1924). For example, many States authorize their
Attorneys General to investigate and prosecute alleged
criminal wrongdoing, including by issuing subpoenas
for grand jury testimony. 8 State Attorneys General are
also often empowered to conduct civil investigations
and civil enforcement proceedings concerning potential
state-law violations, including by issuing subpoenas or
using civil investigative demands. 9 In addition,
Attorneys General generally have authority to use a
variety of further enforcement tools and remedies,
including through administrative proceedings. 10
Cease-and-desist letters are among the most
common and cost-effective enforcement tools for
Attorneys General who have identified likely violations
of their state laws. Such letters demand that those who
are apparently violating state law promptly stop doing
so; and, in many instances, the result is that the
violations do in fact promptly cease. In recent months,
state Attorneys General have sent thousands of ceaseand-desist letters to businesses that have attempted to
See, e.g., Or. Rev. Stat. Ann. § 180.070; In re Criminal
Investigation No. 1, 75 Md. App. 589, 594-95 (1988).
9 See, e.g., Me. Rev. Stat. Ann. tit. 5, § 211; Mass. Gen. Laws
ch. 93A, § 6; N.M. Stat. Ann. §§ 57-12-12, 57-22-9.1; N.Y. Exec.
Law § 63(12); N.Y. Gen. Bus. Law § 352(2); Tex. Bus. & Com. Code
Ann. § 17.61; Wash. Rev. Code Ann. § 19.86.110.
10 See, e.g., Me. Rev. Stat. Ann. tit. 5, § 209; Mass. Gen. Laws
ch. 93A, § 4; N.M. Stat. Ann. §§ 57-12-8, 57-12-11; N.Y. Exec. Law
§ 63(12); N.Y. Gen. Bus. Law §§ 349(b), 353; Wash. Rev. Code Ann.
§§ 19.86.080, 19.86.100.
8
8
exploit the COVID-19 pandemic by selling false treatments or gouging prices on critical products in high
demand. 11 State Attorneys General likewise recently
have sent cease-and-desist letters to prevent election
interference and to protect the integrity of their elections. 12 Cease-and-desist letters also are frequently
used by state and local enforcement officials other than
Attorneys General. 13
Because businesses and organizations today often
operate across state lines, state officials’ investigations
and enforcement efforts commonly involve entities that
11 See, e.g., Brendan J. Lyons, New York AG Has Sent 1,686
Cease and Desist Orders During Pandemic, Albany Times Union
(May 14, 2020) (internet); Pa. Office of Att’y Gen., Press Release,
AG Shapiro: Price Gouging Complaints Top 5,000 Tips (June 5,
2020) (internet) (Pennsylvania Attorney General sent 466 cease
and desist letters related to pandemic price gouging as of June
2020); Mo. Office of Att’y Gen., Press Release, AG Schmitt Sends
Cease and Desist Letter to Branson-Area Business for Inflated
Mask Prices (Apr. 15, 2020) (internet). (For authorities available on
the internet, URLs appear in the Table of Authorities.)
12 See, e.g., Mich. Dep’t of Att’y Gen., Press Release, AG Nessel
Takes Action to Ensure Fair & Free Elections (Nov. 13, 2020)
(internet) (Michigan Attorney General sent five cease and desist
letters to groups on both sides of the political aisle that posted
deceptive information regarding election); Cal. Office of Att’y Gen.,
Press Release, Attorney General Becerra and Secretary of State
Padilla Send Cease and Desist Letters on Ballot Drop Boxes (Oct.
12, 2020) (internet).
13 See, e.g., See, e.g., Stroman Realty, Inc. v. Wercinski, 513
F.3d 476 (5th Cir. 2008) (discussing cease-and-desist letter from
Commissioner of Arizona Department of Real Estate demanding
that realtors not licensed in Arizona cease business in the State);
Jeremy Kohler, St. Louis County Has Issued Dozens of Cease-andDesist Letters to Restaurants Flouting County Health Order, St.
Louis Post-Dispatch (Nov. 24, 2020) (internet).
9
operate in multiple States and that are incorporated or
headquartered in a State other than the State of the
investigating or enforcing official. That is especially so
in the internet age, when businesses and organizations
often operate online and offer products and services
through websites accessible across state lines.
As a result, an Attorney General or other officials
in one State frequently must send cease-and-desist
letters to entities that are based in other States, but
that operate in the official’s State in violation of the law
of that State. Here, for example, New Jersey Attorney
General Grewal sent a cease-and-desist letter to Defense
Distributed, which communicated with New Jersey
residents via its website while being physically located
in Texas. Attorney General Grewal’s letter demanded
that Defense Distributed cease the violations of New
Jersey public-nuisance and negligence law that it was
effecting through its publication of online instructions
allowing New Jersey residents to 3D-print untraceable
firearms. 14 Likewise, New York’s Attorney General has
recently sent cease-and-desist letters demanding that
a number of out-of-state companies that communicate
with New York residents through their websites cease
violating New York law through actions such as selling
14 See Am. Compl., Ex. E, Defense Distributed v. Grewal, No.
1:18-cv-637 (W.D. Tex.), Dkt. 23-5.
10
sham COVID-19 treatments in New York, 15 or selling
e-cigarettes to minors in New York. 16
In addition, state Attorneys General frequently
cooperate in investigating and combatting unlawful
activity that is occurring across state lines and violating the laws of multiple States. In such circumstances
they sometimes send joint cease-and-desist letters to
entities that are based outside some of the Attorneys
General’s States. For instance, thirty-four Attorneys
General sent joint letters urging Amazon, Craigslist,
eBay, Facebook, and Walmart to stop online price
gouging on their websites during the COVID-19 pandemic. 17 Such coordination allows States to pool scarce
resources and save taxpayer money, and it facilitates
coordinated negotiations and global settlements that
can more effectively protect the public. See NAAG,
Attorneys General, supra, at 250-52.
15 See N.Y. Office of Att’y Gen., Press Release, Attorney
General James Orders Craigslist to Remove Posts Selling Fake
Coronavirus Treatments and Exorbitantly-Priced Items (Mar. 20,
2020) (internet); N.Y. Office of Att’y Gen., Press Release, Attorney
General James Orders Alex Jones to Stop Selling Fake Coronavirus Treatments (Mar. 12, 2020) (internet); N.Y. Office of Att’y
Gen., Press Release, Attorney General James Orders Companies
to Stop Selling Fake Treatments for Coronavirus (Mar. 11, 2020)
(internet) (linked cease-and-desist letters indicate out-of-state
addressees).
16 See N.Y. Office of Att’y Gen., Press Release, Attorney
General James Orders Companies to Stop Online Sale of ECigarettes to Minors and New Yorkers (July 20, 2020) (internet)
(linked cease-and-desist letters indicate out-of-state addressees).
See also Pet. 26-28 (additional examples of cease-and-desist letters
sent by state and local officials to out-of-state recipients).
17 See D.C. Office of Att’y Gen., Press Release, AG Racine and
33 Attorneys General Urge Amazon, Craigslist, eBay, Facebook,
and Walmart to Crack Down on Online Price Gouging (Mar. 25,
2020) (internet).
11
II. Principles of State Sovereignty and Federalism
That This Court Has Recognized Prohibit
Courts from Exercising Personal Jurisdiction
Over Out-of-State Officials Based Only on
Cease-and-Desist Letters.
Attorney General Grewal’s petition for certiorari
explains how the Fifth Circuit misapplied this Court’s
precedents and created a conflict with several other
circuits when the Fifth Circuit allowed personal jurisdiction to be exercised over him for simply sending a
cease-and-desist letter to an entity that was reaching
into his State and violating his State’s laws. Amici
States have explained above the significance of such
cease-and-desist letters to state and local lawenforcement efforts, and highlight here one particular
error of the Fifth Circuit’s opinion that is especially
important for States: the Fifth Circuit’s failure to give
adequate weight to state-sovereignty and federalism
concerns.
As this Court has repeatedly emphasized, the
Constitution “ensure[s] that the States through their
courts, do not reach out beyond the limits imposed on
them by their status as coequal sovereigns in a federal
system.” World-Wide Volkswagen, 444 U.S. at 292. “Our
Federalism” requires respect not only for the role of
States in relation to the federal government, but also
for the coequal status of each State in relation to each
of its sister States, see id. at 293-94, and for “‘territorial
limitations on the power of the respective States,’”
Bristol-Myers Squibb Co. v. Superior Court of Cal., San
Francisco Cty., 137 S. Ct. 1773, 1780 (2017) (quoting
Hanson v. Denckla, 357 U.S. 235, 251 (1958)).
The Constitution reserves for States “many essential attributes of sovereignty, including, in particular,
12
the sovereign power to try causes in their courts.”
World-Wide Volkswagen, 444 U.S. at 293. And the
sovereignty of every State “implie[s] a limitation on the
sovereignty of all . . . sister States—a limitation express
or implicit in both the original scheme of the Constitution and the Fourteenth Amendment.” Id.
In light of these fundamental principles, courts
should not exercise personal jurisdiction over an out-ofstate official who merely sends a cease-and-desist letter
to enforce the law of the official’s own State against an
entity that is reaching into the official’s State. That is
so because the out-of-state official’s conduct does not
establish the requisite “minimum contacts” with the
forum State, and because exercising personal jurisdiction over the out-of-state official would unreasonably offend core principles of federalism and state
sovereignty.
A. State Officials Do Not Establish Minimum
Contacts with Another State Merely by
Sending a Cease-and-Desist Letter to a
Recipient in That State.
When an entity has reached into a State and is
violating that State’s law, a state official who merely
sends a cease-and-desist letter from her home State to
that entity does not thereby establish “minimum
contacts” with the entity’s State, such that the courts of
the entity’s State may exercise personal jurisdiction
over the official. In those circumstances, the state
official is not availing herself of the privilege of
conducting activities in the State where the recipient of
the letter happens to be located: the official is not
seeking to do anything in the recipient’s State, or to
invoke the protections or benefits of that other State’s
laws. Rather, the official is simply executing her state-
13
law duty to enforce the laws of her own State, for the
protection of her own State’s citizens. “[T]he mere fact
that [the official’s] conduct affected plaintiffs with
connections to the forum State does not suffice to
authorize jurisdiction.” Walden v. Fiore, 571 U.S. 277,
291 (2014).
The Due Process Clause’s limits on personal jurisdiction “allow[] potential defendants to structure their
primary conduct with some minimum assurance as to
where that conduct will and will not render them liable
to suit.” World-Wide Volkswagen, 444 U.S. at 297. State
officials cannot and should not be forced to structure
their law-enforcement conduct in a manner that is
designed to avoid suit in a foreign forum, if the only way
they can avoid such a suit is by refraining from
communications with those who are violating the law
of their State from out of State.
For instance, the New York Attorney General
recently sent cease-and-desist letters to websites based
in California, Texas, Arizona, Missouri, and Oklahoma
that were selling sham treatments for COVID-19 in
New York, in violation of New York law. 18 The New
York Attorney General was not thereby seeking to avail
herself of the privilege of conducting activities in
California, Texas, Arizona, Missouri, or Oklahoma. She
was merely enforcing New York law to protect New
York citizens, which in that case entailed cautioning
companies based in other States to stop selling their
products unlawfully in New York. She therefore should
be subject to personal jurisdiction only in New York, the
courts of which provide a sufficient forum for raising any
challenges to her law enforcement activities.
18 See supra at 9-10 & n.15.
14
B. It Offends State-Sovereignty and
Federalism Principles for Courts
to Exercise Personal Jurisdiction
over Out-of-State Officials Who Are
Enforcing Their Own States’ Laws
from Their Own States.
In determining whether an exercise of personal
jurisdiction is consistent with due process, “the reasonableness of asserting jurisdiction over the defendant”
also “must be assessed in the context of our federal
system of government.” World-Wide Volkswagen, 444
U.S. at 292 (quotation marks omitted). And “this
federalism interest may be decisive.” Bristol-Myers, 137
S. Ct. at 1780.
Here, for example, principles of state sovereignty
and federalism make it unreasonable for a court to exercise personal jurisdiction over an out-of-state official
whose only connection with the forum State is the
sending of a cease-and-desist letter to an entity in the
forum State that is violating the official’s state laws in
the official’s State. Allowing such suits, as the Fifth
Circuit did in this case, will chill state officials from
enforcing their own laws against out-of-state businesses and organizations that offer products and
services to residents of the officials’ States, by potentially subjecting the officials to jurisdiction in foreign
States’ courts. The Fifth Circuit’s rule allows a scofflaw
to use out-of-state presence as both a sword and a
shield: that is, the scofflaw can drag an out-of-state
official into court in the scofflaw’s own chosen forum,
and may be able to use that litigation to keep the
dispute out of a State where the scofflaw has chosen to
operate. This result defies the States’ fundamental
“sovereign power to try causes in their [own] courts,”
World-Wide Volkswagen, 444 U.S. at 293.
15
Under the circumstances presented here, allowing
the exercise of personal jurisdiction over out-of-state
officials is unreasonable for additional federalismrelated reasons too. Specifically, the exercise of such
jurisdiction will encourage costly, burdensome, and
premature lawsuits against state officials in courts that
lack expertise and an interest in the relevant State’s
law. Out-of-state law violators will be incentivized to
rush to court in their favored forum before a state lawenforcement official brings any dispute in the official’s
own state courts. This will harm not only the officials
forced to litigate costly and burdensome lawsuits in
faraway fora, but also the people of the official’s State.
Those citizens will ultimately bear the costs of any
lawsuits, including the costs of retaining required local
counsel. The citizens also will bear the costs if officials
forego the cost-effective remedy of cease-and-desist
letters—which often successfully put an end to lawbreaking without litigation—and instead immediately
sue in their own State’s courts to ensure that jurisdiction is established there. The result in either case
will be that state officials cannot enforce their state
laws and protect their own citizens as efficiently and
effectively.
Here, for example, Attorney General Grewal sent
respondent Defense Distributed a cease-and-desist
letter on July 26, 2018. 19 Just three days later, Defense
Distributed filed this lawsuit against Grewal in the
United States District Court for the Western District of
Texas, challenging the constitutionality of the New
19 Am. Compl., Ex. E, Defense Distributed, No. 1:18-cv-637
(W.D. Tex.), Dkt. 23-5.
16
Jersey law Grewal’s letter threatened to enforce. 20 In
other words, Defense Distributed rushed to its favored
forum before Grewal took any action beyond sending
the cease-and-desist letter. And although Attorney
General Grewal subsequently brought a suit in New
Jersey for an injunction prohibiting Defense Distributed’s unlawful activity, 21 Defense Distributed has for
two-and-a-half years persisted in its attempt to have
the dispute decided in Texas, resulting in duplicative
litigation that has burdened New Jersey and New
Jersey’s chief law enforcement officer.
In another recent example, the New York Attorney
General and the Massachusetts Attorney General each
sent civil investigative demands to ExxonMobil in
Texas, as part of an investigation of potential violations
of New York and Massachusetts laws prohibiting investor and consumer fraud. Exxon then sued the Attorneys
General of Massachusetts and then New York, in the
United States District Court for the Northern District
of Texas, seeking to block enforcement of the civil
investigative demands as an alleged infringement of
Exxon’s constitutional rights. 22 Exxon pursued the lawsuit in Texas notwithstanding the pendency of proceedings to supervise enforcement of the civil investigative
demands in the state courts of New York 23 and
(W.D. Tex.),
Dkt. 1; Am. Compl., Dkt. 23.
21 See Notice of Removal, Grewal v. Defense Distributed, No.
2:18-cv-13248 (D.N.J.), Dkt. 1.
22 See First Am. Compl., Exxon Mobil Corp. v. Healey, No.
4:16-cv-00469 (N.D. Tex.), Dkt. 100.
23 See People by Schneiderman v. PriceWaterhouseCoopers
LLP, Index No. 451962/16 (N.Y. Sup. Ct. N.Y. Cty.).
20 Compl., Defense Distributed, No. 1:18-cv-637
17
Massachusetts 24—fora where Exxon could raise any
challenges to the civil investigative demands.25 Although
Exxon’s federal lawsuit was eventually transferred out
of Texas, the transfer came only after months of wasteful litigation. 26
Permitting plaintiffs to challenge state lawenforcement actions in an out-of-state court also puts
States in the disadvantageous position of having their
laws and their law-enforcement actions examined by
courts that lack expertise and an interest in the relevant State’s law. As this Court has repeatedly recognized, the judges located in a State—including federal
judges—“are likely to be familiar with the applicable
state law.” United States v. Hohri, 482 U.S. 64, 74 n.6
(1987). Federal judges sitting in a particular State face
issues of state law and enforcement by state officials
every day, and typically previously practiced in that
State. Moreover, the federal courts in a State have a
special interest in opining on state law and the
propriety of state law-enforcement efforts that other
States’ courts do not have. 27
24 See Pet. of Exxon Mobil Corp., In re Civil Investigative
Demand No. 2016-EPD-36, No. 16-1888F (Mass. Super. Ct.,
Suffolk Cty.).
25 See, e.g., Exxon Mobil Corp. v. Attorney General, 479 Mass.
312 (2018), cert. denied sub nom. Exxon Mobil Corp. v. Healey, 139
S. Ct. 794 (2019).
26 See Order, Exxon Mobil, No. 4:16-cv-00469 (N.D. Tex.), Dkt.
180.
27 For these reasons, a “district judge’s determination of a
state-law question” under the law of the State where the judge sits
“usually is reviewed with great deference.” See Hohri, 482 U.S. at
74 n.6; see also, e.g., Bishop v. Wood, 426 U.S. 341, 346 & n. 10
(1976) (“[T]his Court has accepted the interpretation of state law
in which the District Court and the Court of Appeals have
18
Here, for example, respondents’ challenge to the
law-enforcement efforts of Attorney General Grewal
would be best addressed not in Texas, but in New
Jersey, where the federal courts have expertise and a
stake in New Jersey law. And because there is pending
parallel litigation in New Jersey in which respondents
could raise any of the issues they have raised in
Texas, 28 respondents’ Texas lawsuit appears to be an
attempt to interfere with the examination of New Jersey
law and law-enforcement efforts by the federal courts
in New Jersey.
Where the forum State has “little legitimate
interest in the claims in question,” due process does not
permit the State’s courts to exercise their “coercive
power” over a different State’s officials. See BristolMyers, 137 S. Ct. at 1780. Indeed, “even if the forum
State has a strong interest in applying its law to the
controversy”—which is not the case here—“the Due
Process Clause, acting as an instrument of interstate
federalism, may sometimes act to divest the State of its
power to render a valid judgment.” Id. at 1780-81
(quoting World-Wide Volkswagen, 444 U.S. at 294).
Allowing suits against state officials in faraway
courts imposes substantial burdens and expenses on
state officials that the officials would not face in their
own State’s courts. Many federal courts do not permit
concurred even if an examination of the state-law issue without
such guidance might have justified a different conclusion.”);
Bernhardt v. Polygraphic Co. of Am., 350 U.S. 198, 204 (1956)
(“Since the federal judge making those findings is from the Vermont
bar, we give special weight to his statement of what the Vermont
law is.”).
28 See Defense Distributed v. Grewal, No. 3:19-cv-4753 (D.N.J.);
see also Grewal v. Defense Distributed, No. 2:18-cv-13248 (D.N.J.).
19
attorneys from the offices of out-of-state Attorneys
General to practice in their courts without being
admitted there, and some courts also require association with local resident counsel that the State must
pay. For instance, the Northern District of Texas
requires local counsel, and the Western District of
Texas gives judges discretion to require local counsel;
in each case, the local counsel must be prepared “to
present and argue the party’s position at any
hearing.” 29 Thus, New Jersey and the other States and
localities whose officials were originally sued by respondents in this case—and New York and Massachusetts
in ExxonMobil’s case—were all required to retain
experienced local counsel and pay them out of taxpayer
dollars.
Finally, permitting courts to exercise personal
jurisdiction over an out-of-state official who merely
sends a cease-and-desist letter to enforce the law of his
own State will have a destabilizing effect on state law.
If a state official can be sued wherever the recipient of
a cease-and-desist letter happens to reside, courts
around the country will be drawn into the business of
opining on the validity of other States’ laws and the
efforts of state officials to enforce those laws. And if
suits to enjoin enforcement are brought by multiple
recipients based in different States, then multiple
courts could find themselves considering similar issues
simultaneously, leading to duplicative lawsuits and a
likelihood of inconsistent judgments. This risk is magnified in the internet age when businesses and other
entities may be simultaneously operating online in
many States—and violating many States’ laws—
without a physical presence in any of those States.
29 See N.D. Tex. Local Civ. R. 83.10; W.D. Tex. Local R. AT-2.
20
If courts in different circuits ruled on the same
legal issues in these cases, circuit splits could result.
Circuit splits on issues of federal law could be resolved
only in this Court. And circuit splits on issues of state
law could be resolved only by the enforcing State’s
highest court, through the procedure of certification or
through other litigation, which might well take a long
time to complete. The likely result would be to add
confusion and complication to state law-enforcement
efforts, until the conflict could be resolved by the state’s
highest court.
This case illustrates the point. Shortly after the
Texas district court initially dismissed the respondents’
case against Attorney General Grewal for lack of
personal jurisdiction, the respondents filed another
lawsuit in the District of New Jersey, challenging the
same New Jersey law at issue in this case. See Defense
Distributed v. Attorney General of N.J., 972 F.3d 193,
196-97 (3d Cir. 2020). If the Texas and New Jersey
courts were to disagree about the validity of the New
Jersey law, only this Court could resolve the conflict;
and if they were to disagree on the meaning of the New
Jersey law, only the New Jersey Supreme Court could
resolve that conflict. The prospect of such delay and
confusion counsels heavily against the Fifth Circuit’s
ruling that would give the Texas federal district court
in this case personal jurisdiction over the New Jersey
Attorney General.
21
CONCLUSION
For all these reasons and those stated in the
petition for a writ of certiorari, the petition should be
granted.
Respectfully submitted,
LETITIA JAMES
Attorney General
State of New York
BARBARA D. UNDERWOOD*
Solicitor General
ANISHA S. DASGUPTA
Deputy Solicitor General
PHILIP J. LEVITZ
Assistant Solicitor General
barbara.underwood@ag.ny.gov
February 2021
* Counsel of Record
(Counsel listing continues on next page.)
22
XAVIER BECERRA
Attorney General
State of California
1300 I St.
Sacramento, CA 95814
AARON M. FREY
Attorney General
State of Maine
6 State House Station
Augusta, ME 04333
PHILIP J. WEISER
Attorney General
State of Colorado
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BRIAN E. FROSH
Attorney General
State of Maryland
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WILLIAM TONG
Attorney General
State of Connecticut
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Hartford, CT 06106
MAURA HEALEY
Attorney General
Commonwealth of
Massachusetts
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KATHLEEN JENNINGS
Attorney General
State of Delaware
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Attorney General
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P.O. Box 30212
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CLARE E. CONNORS
Attorney General
State of Hawai‘i
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KEITH ELLISON
Attorney General
State of Minnesota
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King Jr. Blvd.
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KWAME RAOUL
AARON D. FORD
Attorney General
Attorney General
State of Illinois
State of Nevada
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Chicago, IL 60601
Carson City, NV 89701
23
HECTOR BALDERAS
Attorney General
State of New Mexico
P.O. Drawer 1508
Santa Fe, NM 87504
THOMAS J. DONOVAN, JR.
Attorney General
State of Vermont
109 State St.
Montpelier, VT 05609
ELLEN F. ROSENBLUM
Attorney General
State of Oregon
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Salem, OR 97301
MARK R. HERRING
Attorney General
Commonwealth of Virginia
202 North Ninth St.
Richmond, VA 23219
JOSH SHAPIRO
Attorney General
Commonwealth of
Pennsylvania
Strawberry Sq., 16th Fl.
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ROBERT W. FERGUSON
Attorney General
State of Washington
P.O. Box 40100
Olympia, WA 98504
PETER F. NERONHA
Attorney General
State of Rhode Island
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Providence, RI 02903
KARL A. RACINE
Attorney General
District of Columbia
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Washington, DC 20001
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