Petition for Writ of Certiorari — VNG Corporation, Petitioner v. Lang Van, Inc.

Supreme Court briefMar 23, 2023

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NO. ______

In the

Supreme Court of the United States

________________

VNG CORPORATION,

a Vietnamese corporation,

Petitioner,

LANG VAN, INC.,

a California corporation,

________________

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

________________

PETITION FOR WRIT OF CERTIORARI

________________

Quyen L. Ta

Anne M. Voigts

KING & SPALDING LLP

50 California Street

Suite 3300

San Francisco, CA 94111

Kelly L. Perigoe

Counsel of Record

Michael D. Roth

James A. Unger

KING & SPALDING LLP

633 W 5th Street

Suite 1600

Los Angeles, CA 90071

(213) 443-4355

kperigoe@kslaw.com

Counsel for Petitioner VNG Corporation

March 23, 2023

QUESTION PRESENTED

For courts to exercise personal jurisdiction, due

process requires that defendants have sufficient

“minimum contacts” with the forum “such that the

maintenance of the suit does not offend traditional

notions of fair play and substantial justice.” Int’l Shoe

Co. v. Washington, 326 U.S. 310, 316 (1945) (cleaned

up). Federal Rule of Civil Procedure 4(k)(2) does not

water down those constitutional requirements. To the

contrary, it expressly allows for personal jurisdiction

over foreign defendants for federal claims in federal

courts only if those defendants are not subject to

jurisdiction in any state’s courts of general jurisdiction

and exercising jurisdiction is consistent with the

Constitution. This Court has yet to weigh in on how

those

constitutional

requirements

apply

jurisdiction based on either defendants’ internet

contacts or Rule 4(k)(2), but appellate and district

courts have—and have split on both questions.

The questions presented are:

1. Whether traditional due process principles

apply to the exercise of specific personal jurisdiction

over defendants based on their universally accessible

website or mobile application.

2. Whether traditional due process principles

apply to the exercise of specific personal jurisdiction

under Federal Rule of Civil Procedure 4(k)(2).

CORPORATE DISCLOSURE STATEMENT

No publicly held company owns 10% or more of

the stock of Petitioner VNG Corporation.

iii

RELATED PROCEEDINGS

Lang Van, Inc. v. VNG Corp.,

40 F.4th 1034 (9th Cir. 2022), judgment entered

on July 21, 2022; petition for rehearing denied on

November 23, 2022

Lang Van, Inc. v. VNG Corp.,

2019 WL 8107873 (C.D. Cal. Nov. 21, 2019)

Lang Van, Inc. v. VNG Corp.,

669 F. App’x 479 (9th Cir. 2016) (mem.), judgment

entered on October 11, 2016

Lang Van, Inc. v. VNG Corp.,

2014 WL 12585661 (C.D. Cal. Oct. 8, 2014)

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

CORPORATE DISCLOSURE STATEMENT ............ ii

RELATED PROCEEDINGS ..................................... iii

TABLE OF AUTHORITIES ..................................... vii

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 2

JURISDICTION ......................................................... 3

CONSTITUTIONAL

AND

STATUTORY

PROVISIONS INVOLVED...................................... 3

STATEMENT OF THE CASE ................................... 3

A. Legal Background ........................................ 3

B. Factual Background ................................... 11

C. The Decisions Below................................... 13

REASONS FOR GRANTING THE PETITION....... 15

The Ninth Circuit’s opinion decided

important questions of federal law and

conflicts with decisions by this Court and

other appellate courts........................................ 17

A. The circuits are split over the application

of specific jurisdiction to virtual contacts .. 17

B. The Ninth Circuit applied Rule 4(k)(2) to

do what Daimler, Walden, and Ford

prohibit ....................................................... 30

II. The questions presented are important and

recurring and this case presents an excellent

vehicle for answering them ............................... 35

CONCLUSION ......................................................... 37

APPENDIX

Appendix A

Opinion of the United States Court of

Appeals for the Ninth Circuit, Lang Van,

Inc. v. VNG Corp., No. 19-56452

(July 21, 2022) ...................................... App-1

Appendix B

Memorandum Opinion of the United

States Court of Appeals for the Ninth

Circuit, Lang Van, Inc. v. VNG Corp.,

No. 14-56770 (Oct. 11, 2016) .............. App-17

Appendix C

Order of the United States District Court

for the Central District of California,

Lang Van, Inc. v. VNG Corp., No. 8:14-cv00100 AG (JDEx) (Nov. 21, 2019) ...... App-21

Appendix D

Order of the United States District Court

for the Central District of California,

Lang Van, Inc. v. VNG Corp., No. 8:14-cv00100 AG (JDE) (Oct. 8, 2014) ........... App-32

Appendix E

Order of the United States Court of

Appeals for the Ninth Circuit Denying

Panel Rehearing and Rehearing En

Banc, Lang Van, Inc. v. VNG Corp.,

No. 19-56452 (Nov. 23, 2022) ............. App-46

Appendix F

Relevant Constitutional Provisions &

Rules

U.S. Const amend. V .................... App-48

U.S. Const amend. XIV ................ App-48

Fed. R. Civ. P. 4(k)(2) ................... App-50

vii

TABLE OF AUTHORITIES

Cases

Advanced Tactical Ordnance Sys., LLC

v. Real Action Paintball, Inc.,

751 F.3d 796 (7th Cir. 2014)....................... 5, 18, 19,

21, 22, 29

AMA Multimedia, LLC v. Wanat,

970 F.3d 1201 (9th Cir. 2020)................................ 27

Asahi Metal Indus. Co. v. Super. Ct.,

480 U.S. 102 (1987) ........................................ 1, 6, 36

Axiom Foods, Inc. v. Acerchem Int’l, Inc.,

874 F.3d 1064 (9th Cir. 2017).................................. 4

be2 LLC v. Ivanov,

642 F.3d 555 (7th Cir. 2011).............................. 7, 18

Bernhardt v. Islamic Republic of Iran,

47 F.4th 856 (D.C. Cir. 2022) .......................... 33, 34

Blessing v. Chandrasekhar,

988 F.3d 889 (6th Cir. 2021)............................ 20, 21

Bristol-Myers Squibb Co. v. Super. Ct.,

137 S. Ct. 1773 (2017)............................................ 10

Bros. & Sisters in Christ, LLC v. Zazzle, Inc.,

42 F.4th 948 (8th Cir. 2022) ........................ 7, 19, 20

Burger King Corp. v. Rudzewicz,

471 U.S. 462 (1985) .......................................... 31, 32

Burke v. Woods,

85 F.3d 640,

1996 WL 223731 (10th Cir. 1996) ......................... 32

Calder v. Jones,

465 U.S. 783 (1984) ........................................ 4, 8, 22

viii

Campbell Pet Co. v. Miale,

542 F.3d 879 (Fed. Cir. 2008) .................................. 7

CGC Holding Co. v. Hutchens,

974 F.3d 1201 (10th Cir. 2020).............................. 11

Chloe v. Queen Bee of Beverly Hills, LLC,

616 F.3d 158 (2d Cir. 2010) ................................... 21

Cmty. Tr. Bancorp, Inc.

v. Cmty. Tr. Fin. Corp.,

692 F.3d 469 (6th Cir. 2012).................................... 7

Cybersell, Inc. v. Cybersell, Inc.,

130 F.3d 414 (9th Cir. 1997).................................... 6

Daimler AG v. Bauman,

571 U.S. 117 (2014) .......................................... 31, 36

Del Valle v. Trivago GMBH,

56 F.4th 1265 (11th Cir. 2022) .............................. 21

DeLorenzo v. Viceroy Hotel Grp., LLC,

757 F. App’x 6 (2d Cir. 2018) ................................... 7

Douglass v. Nippon Yusen Kabushiki Kaisha,

46 F.4th 226 (5th Cir. 2022) .................................. 11

Fidrych v. Marriott Int’l, Inc.,

952 F.3d 124 (4th Cir. 2020).................................. 18

Ford Motor Co.

v. Mont. Eighth Jud. Dist. Ct.,

141 S. Ct. 1017 (2021).................... 3, 8, 9, 27, 31, 32

GCIU-Emp. Ret. Fund v. Coleridge Fine Arts,

808 F. App’x 655 (10th Cir. 2020) ......................... 34

Goodyear Dunlop Tires Operations, S.A.

v. Brown,

564 U.S. 915 (2011) .................................................. 4

GTE New Media Servs. Inc.

v. BellSouth Corp.,

199 F.3d 1343 (D.C. Cir. 2000) .............................. 21

Hepp v. Facebook,

14 F.4th 204 (3d Cir. 2021).................... 7, 10, 15, 28

Herederos De Roberto Gomez Cabrera, LLC

v. Teck Res. Ltd.,

43 F.4th 1303 (11th Cir. 2022) .............................. 34

Int’l Shoe Co. v. Washington,

326 U.S. 310 (1945) ............................................ 3, 17

Johnson v. TheHuffingtonPost.com, Inc.,

21 F.4th 314 (5th Cir. 2021) ....... 4, 5, 7, 8, 9, 14, 15,

17, 18, 19, 23, 25, 27, 28

Mavrix Photo, Inc. v. Brand Techs., Inc.,

647 F.3d 1218 (9th Cir. 2011)............................ 7, 26

Neogen Corp. v. Neo Gen Screening, Inc.,

282 F.3d 883 (6th Cir. 2002).................................. 21

NexLearn, LLC v. Allen Interactions, Inc.,

859 F.3d 1371 (Fed. Cir. 2017) ........................ 17, 21

Nuance Commc’ns, Inc.

v. Abbyy Software House,

626 F.3d 1222 (Fed. Cir. 2010) .............................. 21

Old Republic Ins. Co. v. Cont’l Motors, Inc.,

877 F.3d 895 (10th Cir. 2017).................................. 7

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

558 F.3d 1210 (11th Cir. 2009)................................ 7

Plixer Int’l, Inc. v. Scrutinizer GmbH,

905 F.3d 1 (1st Cir. 2018) ...................... 7, 10, 14, 23

Quick Techs., Inc. v. Sage Grp. PLC,

313 F.3d 338 (5th Cir. 2002)............................ 34, 35

Shrader v. Biddinger,

633 F.3d 1235 (10th Cir. 2011)................ 4, 5, 18, 20

Triple Up Ltd. v. Youku Tudou Inc.,

2018 WL 4440459

(D.C. Cir. July 17, 2018) ............ 8, 10, 15, 25, 29, 30

Triple Up Ltd. v. Youku Tudou Inc.,

235 F. Supp. 3d 15 (D.D.C. 2017) ...................... 7, 24

UMG Recordings, Inc. v. Kurbanov,

963 F.3d 344 (4th Cir. 2020)......................... 7, 9, 14,

15, 24, 26, 29

Unspam Techs., Inc. v. Chernuk,

716 F.3d 322 (4th Cir. 2013).................................. 32

Walden v. Fiore,

571 U.S. 277 (2014) ................................... 1, 4, 5, 13,

17, 22, 24, 31

Werner v. Dowlatsingh,

818 F. App’x 671 (9th Cir. 2020) ........................... 22

XMission, L.C. v. Fluent LLC,

955 F.3d 833 (10th Cir. 2020)............................ 5, 20

Rules

Fed. R. Civ. P. 4(k)(2) ................................... 10, 31, 32

Other Authorities

4A Wright & Miller,

Federal Practice and Procedure

§ 1073 (4th ed.)......................................................... 5

Fed. R. Civ. P. 4 Comm. Notes (1993)...................... 10

PETITION FOR WRIT OF CERTIORARI

This petition raises two open questions. First, in

Walden v. Fiore, 571 U.S. 277, 290 n.9 (2014), this

Court left “questions about virtual contacts” and

specific personal jurisdiction “for another day.” That

day has come. In the nearly ten years since Walden,

lower courts have developed conflicting answers to

those questions, which deserve a consistent, uniform

response. Second, this Court has never addressed how

specific jurisdiction principles apply to Federal Rule of

Civil Procedure 4(k)(2), although it has recognized

that “[g]reat care and reserve should be exercised

when extending our notions of personal jurisdiction

into the international field.” Asahi Metal Indus. Co. v.

Super. Ct., 480 U.S. 102, 115 (1987) (cleaned up). Here

too, in the absence of this Court’s guidance, lower

courts have developed conflicting answers that also

warrant resolution.

In this case, for example, the Ninth Circuit

decided that a district court can constitutionally

exercise personal jurisdiction over VNG, a Vietnamese

company, based on its worldwide virtual contacts,

even though the conduct underlying the alleged claims

occurred in Vietnam and was directed to an

overwhelmingly Vietnamese audience. In the process,

it ignored three core due process requirements.

As this Court has repeatedly reminded lower

courts, specific jurisdiction (1) can only lie if the

defendant purposefully availed itself of the forum,

(2) depends on a defendant’s contacts with the forum,

not with the plaintiff, and (3) requires that defendant’s

purposeful contacts with the forum be related to the

claims in the lawsuit. None of those requirements

were satisfied here. Instead, the Ninth Circuit relied

on plaintiff’s and third parties’ contacts with the

forum, as well as defendant’s entirely unrelated

contacts. And it took this Court’s presumption against

specific jurisdiction absent proof of the defendant’s

purposeful availment and converted it into a

presumption in favor of specific jurisdiction absent

proof of purposeful avoidance. Neither virtual contacts

nor Rule 4(k)(2) warrant this departure from settled

principles.

While every appellate court agrees that due

process requires plaintiffs to show something more

than defendants having universally accessible

websites, they fundamentally disagree over what that

something more is. In defining that requirement

loosely (and in conflict with this Court’s teachings),

the Ninth Circuit compounded the existing dissension

over what sorts of virtual contacts satisfy specific

personal jurisdiction, and how nationwide jurisdiction

can apply when a foreign defendant lacks

constitutionally sufficient minimum contacts with any

one state. This Court should grant certiorari, address

these questions, and confirm that traditional

principles of specific jurisdiction apply with equal

force both in nontraditional contexts and under Rule

4(k)(2).

OPINIONS BELOW

The opinion of the Ninth Circuit is reported at 40

F.4th 1034 and reproduced at App.1-16. The opinion

of the U.S. District Court for the Central District of

California is unpublished but available at 2019 WL

8107873 and reproduced at App.21-31.

JURISDICTION

The Ninth Circuit issued its opinion on July 21,

2022, and denied panel rehearing and rehearing en

banc on November 23, 2022. This Court has

jurisdiction under 28 U.S.C. § 1254.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth and Fourteenth Amendments to the

U.S. Constitution and Federal Rule of Civil Procedure

4(k)(2) are reproduced at App.48-50.

STATEMENT OF THE CASE

A. Legal Background

Under the Fifth and Fourteenth Amendments’

due process clauses, courts may exercise personal

jurisdiction only when defendants have sufficient

“minimum contacts” with the forum “such that the

maintenance of the suit does not offend traditional

notions of fair play and substantial justice.” Int’l Shoe

Co. v. Washington, 326 U.S. 310, 316 (1945) (cleaned

up). Rule 4(k)(2) expressly incorporates those

constitutional principles, authorizing nationwide

federal-court specific jurisdiction for federal claims if

due process is satisfied and defendants are not subject

to jurisdiction in any state’s courts of general

jurisdiction.

1. This Court has recognized “two kinds of

personal jurisdiction: general (sometimes called allpurpose) jurisdiction and specific (sometimes called

case-linked) jurisdiction.” Ford Motor Co. v. Mont.

Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1024 (2021). A

court

may

constitutionally

exercise

general

jurisdiction only if defendants are “essentially at

home” in the forum, but can do so as to all claims

against them. Id. at 1024 (quoting Goodyear Dunlop

Tires Operations, S.A. v. Brown, 564 U.S. 915, 919

(2011)). By contrast, specific jurisdiction “covers

defendants less intimately connected” with a forum,

“but only as to a narrower class of claims.” Id.

For specific jurisdiction, due process requires that

(1) the defendant “purposefully availed” itself of or

“purposefully direct[ed]” its activities toward the

forum; and (2) the claim “arises out of or relates to the

defendant’s forum-related activities.” Axiom Foods,

Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064, 1068 (9th

Cir. 2017) (cleaned up); see also Johnson v.

TheHuffingtonPost.com, Inc., 21 F.4th 314, 317-18

(5th Cir. 2021), cert. denied, 143 S. Ct. 485 (2022)

(mem.). If those prongs are satisfied, defendants can

overcome jurisdiction by showing its exercise wouldn’t

be reasonable. Johnson, 21 F.4th at 318.

2. Calder v. Jones, 465 U.S. 783 (1984), set forth

a framework for applying the purposeful-direction

requirement to intentional torts and analytically

similar claims like trademark and copyright

infringement. Lower courts subsequently distilled

Calder’s holding into a three-part “Calder effects test,”

requiring (1) an intentional act, (2) expressly aimed at

the forum, (3) causing harm in the forum state.

Shrader v. Biddinger, 633 F.3d 1235, 1239-40 (10th

Cir. 2011).

As this Court clarified in Walden, express aiming

“focuses on the relationship among the defendant, the

forum, and the litigation.” 571 U.S. at 283-84 (cleaned

up). For that relationship to satisfy due process,

“defendant’s suit-related conduct must create a

substantial connection with the forum.” Id. (emphasis

added).

Walden identified “[t]wo related aspects of this

necessary relationship.” Id. at 284. First, the

defendant’s own “intentional conduct” must “create[]

the necessary contacts with the forum.” Id. at 286;

Johnson, 21 F.4th at 317 (defendant itself must have

“purposefully forged” its ties to the forum). “Second,

[the] analysis looks to the defendant’s contacts with

the forum State itself, not the defendant’s contacts

with persons who reside there.” Walden, 571 U.S. at

285. Plaintiff’s contacts with the forum or defendant’s

contacts with the plaintiff, by contrast, do not count.

Walden, however, left “questions about virtual

contacts for another day.” Id. at 290 n.9. Left to their

own devices, lower courts have grappled with

“whether, when, and how such peculiarly nonterritorial activities as web site hosting, internet

posting, and mass emailing can constitute or give rise

to contacts that properly support jurisdiction.”

Shrader, 633 F.3d at 1240. For years, courts have

fashioned their own idiosyncratic rules, resulting “in a

state of flux.” XMission, L.C. v. Fluent LLC, 955 F.3d

833, 844 (10th Cir. 2020) (quoting 4A Wright & Miller,

Federal Practice and Procedure § 1073 (4th ed.));

Advanced Tactical Ordnance Sys., LLC v. Real Action

Paintball, Inc., 751 F.3d 796, 802-03 (7th Cir. 2014).

While circuits agree that a universally accessible

website by itself does not subject a defendant to

jurisdiction everywhere, Cybersell, Inc. v. Cybersell,

Inc., 130 F.3d 414 (9th Cir. 1997), 1 they disagree over

what more is required. The First, Fourth, and now

Ninth Circuits have made that requirement of “more”

meaningless by counting contacts that add nothing to

a defendant’s jurisdictional ties because they are

simply a function of a website’s universal accessibility.

Specifically, they have relied on the fact that

defendants do not geoblock (i.e., affirmatively block

users from universally accessible websites based on

those users’ perceived locations), and/or that

defendants’

websites

display

third

parties’

geotargeted advertising (i.e., ads based on algorithms

that tailor the ads shown to each and every location

where the website is accessible). But those forum

“contacts”—either not preventing a website from

being universally accessible or receiving revenue from

brokers (outside the forum) who use an algorithm to

place third-party ads on defendants’ websites—don’t

actually do any more work than universal accessibility

in establishing purposeful direction. In holding

otherwise, the First, Fourth, and Ninth Circuits

departed from the traditional specific-jurisdiction

principles that led courts to agree that a universally

accessible website was not enough for jurisdiction in

the first place.

That “something more” requirement, derived from Justice

O’Connor’s plurality opinion in Asahi Metal Industry Co., 480

U.S. at 111, was initially applied to analyze jurisdiction based on

“passive” websites (i.e., websites that just post information), but

has since been applied to “interactive” websites (i.e., where “users

can exchange information with the host computer,” Cybersell, 130

F.3d at 418), too, as the vast majority of websites are now

“interactive” and the distinction no longer meaningful.

Basing jurisdiction on defendants not blocking

website access to users in the forum, as the First,

Fourth, and Ninth Circuits do, contravenes Walden

and Calder by focusing on what the defendant did not

do, rather than what it did. Plixer Int’l, Inc. v.

Scrutinizer GmbH, 905 F.3d 1, 6 (1st Cir. 2018); UMG

Recordings, Inc. v. Kurbanov, 963 F.3d 344, 354 (4th

Cir. 2020); App.12-13. By contrast, the other circuits

have found no specific jurisdiction notwithstanding

evidence or allegations of website users in the forum,

implicitly rejecting the notion that defendants must

purposefully avoid a forum lest they be haled into

court there. Bros. & Sisters in Christ, LLC v. Zazzle,

Inc., 42 F.4th 948, 953 (8th Cir. 2022); Hepp v.

Facebook, 14 F.4th 204, 208 (3d Cir. 2021); DeLorenzo

v. Viceroy Hotel Grp., LLC, 757 F. App’x 6, 9 (2d Cir.

2018); Old Republic Ins. Co. v. Cont’l Motors, Inc., 877

F.3d 895, 915 (10th Cir. 2017); Triple Up Ltd. v. Youku

Tudou Inc., 235 F. Supp. 3d 15, 26 (D.D.C. 2017);

Cmty. Tr. Bancorp, Inc. v. Cmty. Tr. Fin. Corp., 692

F.3d 469, 472 (6th Cir. 2012); be2 LLC v. Ivanov, 642

F.3d 555, 559 (7th Cir. 2011); Oldfield v. Pueblo De

Bahia Lora, S.A., 558 F.3d 1210, 1221-23 (11th Cir.

2009); Johnson, 21 F.4th at 319; Campbell Pet Co. v.

Miale, 542 F.3d 879, 884 (Fed. Cir. 2008).

And basing jurisdiction, as the Fourth and Ninth

Circuits do, on a defendant’s display of ads that are

automatically tailored through algorithms to every

location where the website is accessible, App.3, 14;

Kurbanov, 963 F.3d at 354; Mavrix Photo, Inc. v.

Brand Techs., Inc., 647 F.3d 1218, 1230 (9th Cir.

2011), is equally problematic because it departs from

the due process requirements that the defendant itself

expressly aim intentional contacts at the forum and

that those contacts relate to the claims. Calder, 465

U.S. at 789-90. By contrast, the Fifth and D.C.

Circuits, the other circuits to squarely address this

issue, applied those constitutional requirements to

hold that selling geotargeted advertising does not

prove purposeful direction at a particular forum any

more than universally accessible websites do.

Johnson, 21 F.4th at 319; Triple Up Ltd. v. Youku

Tudou Inc., 2018 WL 4440459, at *3 (D.C. Cir. July 17,

2018) (per curiam). That’s because geographic-specific

ads are automatically populated without any

affirmative conduct by defendants, who neither

contract with the advertiser nor select the ads.

Johnson, 21 F.4th at 319; Triple Up, 2018 WL

4440459, at *3.

3. Ford emphasized a second jurisdictional

condition, namely, that the claims in the lawsuit must

arise out of or relate to the same contacts that satisfy

the purposeful-direction requirement. Ford, 141 S. Ct.

at 1026.

Ford involved product liability suits stemming

from car accidents in Minnesota and Montana, where

plaintiffs sued. Id. at 1022, 1028. Ford held that the

defendant’s contacts were sufficiently related to the

claims because by “every means imaginable,” it

“systematically served a market in [the forums] for the

very vehicles that the plaintiffs allege malfunctioned

and injured them in those States,” even if those

vehicles were bought elsewhere. Id. at 1028. Although

Ford rejected a strict causal theory of relatedness, it

also rejected the idea that “anything goes,” and, like

Walden, looked to the requisite relationship between

the defendant, the forum, and the litigation. Id. at

1026.

Circuits have generally agreed that Ford’s

relatedness requirement “must be satisfied even

where all the defendant’s ties to the forum are

virtual,” Johnson, 21 F.4th at 319, but have diverged

over that requirement’s application. The First and

Fourth Circuits found that failing to geoblock a

website relates to any claim for which the predicate

act is carried out on that website. Similarly, the

Fourth Circuit held plaintiff’s copyright claims

“related” to geotargeted advertising that appeared on

the same website as the allegedly copyrighted works.

Kurbanov, 963 F.3d at 348, 353. And the Ninth Circuit

found VNG’s internet contacts satisfied due process

here, without even mentioning Ford.

This relaxed application of “relatedness” (or the

outright omission of its application) goes far beyond

Ford. Ford allowed jurisdiction where the defendant

engaged in the same core conduct in the forum state

as the lawsuit challenged, just not involving plaintiffs’

specific vehicles. The First, Fourth, and Ninth Circuits

approach to virtual conduct, however, allows for

jurisdiction based on different, unrelated conduct.

By contrast, in Johnson, the Fifth Circuit

faithfully applied Ford to geotargeted advertising,

finding no jurisdiction in Texas over a libel claim

despite defendant’s display of ads from Texas-based

advertisers on its website, its use of “visitors’ location

data to tailor advertising to them,” and its resulting

online sales to Texans. 21 F.4th at 320. That’s because

plaintiff’s claim arose from defendant’s libelous

article, not the ads that appeared alongside it or the

advertisers’ citizenship. Id.; see also Hepp, 14 F.4th at

208 (no specific jurisdiction over online platforms who

used geotargeted advertising where misappropriation

claim did not allege defendants used the plaintiff’s

likeness to sell the advertising); Triple Up, 2018 WL

4440459, at *4 (jurisdictional discovery not warranted

where plaintiff failed to “plausibly allege[] any

connection between [defendant’s] VIP service or its

business dealings in the United States and its free

streaming services and user-uploaded video

platforms” at issue in the claims).

4. Rule 4(k)(2) does not relax these jurisdictional

principles. 2 It permits federal courts in any state to

exercise personal jurisdiction over foreign defendants

when: (1) the claim arises under federal law; (2) the

defendant is not subject to personal jurisdiction in any

state court of general jurisdiction; and (3) the federal

court’s exercise of personal jurisdiction comports with

due process. Fed. R. Civ. Proc. 4(k)(2); Plixer, 905 F.3d

at 6.

Although this Court has left open whether the

Fifth Amendment imposes the same restrictions on

federal courts’ exercise of personal jurisdiction as the

Fourteenth Amendment does on state courts, BristolMyers Squibb Co. v. Super. Ct., 137 S. Ct. 1773, 178384 (2017), circuit courts have analyzed specific

jurisdiction under Rule 4(k)(2) applying due process

standards. See, e.g., CGC Holding Co. v. Hutchens, 974

As the advisory committee notes to the 1993 amendment

creating subsection (k)(2) explained, the addition “enables

district courts to exercise jurisdiction, if permissible under the

Constitution.” Fed. R. Civ. P. 4 Comm. Notes (1993) (emphasis

added).

F.3d 1201, 1209 (10th Cir. 2020) (applying Fourteenth

Amendment minimum contacts framework to analyze

constitutionality of jurisdiction under Rule 4(k)(2));

Douglass v. Nippon Yusen Kabushiki Kaisha, 46 F.4th

226, 240-41 (5th Cir. 2022) (citing cases). Under that

majority approach, courts may only exercise Rule

4(k)(2) jurisdiction when the due process principles it

expressly incorporates are satisfied. The Ninth Circuit

is an outlier, finding Rule 4(k)(2) jurisdiction without

diligently applying those principles.

B. Factual Background

Defendant VNG is a Vietnamese company,

headquartered in Vietnam, with no physical presence

in the U.S. It produces websites and software

including ZingMP3, a music-streaming service

available through zingmp3.com (“Website”) and a

mobile application (“Application”) (collectively,

“ZingMP3”). CA9-SER-85. ZingMP3’s servers are

located exclusively in Vietnam. Id.

Although available worldwide, ZingMP3 is

overwhelmingly used by Vietnamese people in

Vietnam—between 86 and 97 percent of users in the

relevant time period were Vietnam-based, while only

between 1 and 4 percent of users were U.S.-based.

CA9-SER-51; CA9-SER-54; CA9-SER-61; CA9-SER71; CA9-SER-74; CA9-SER-77.

VNG never tried to develop a U.S. market for

ZingMP3. CA9-SER-50-51. During the relevant

period, VNG wasn’t registered to do business in the

U.S., did no direct marketing or advertising of

ZingMP3 to U.S. consumers, and received no revenue

for ZingMP3 directly from U.S. users. CA9-SER-50-51;

CA9-SER-82-83. Although Vietnamese advertisers

and a Singapore-based advertising broker paid VNG

for geotargeted advertisements on the Website, VNG

had no advertising arrangements with U.S.

companies. CA9-SER-82; CA9-SER-19.

The Ninth Circuit primarily based jurisdiction on

VNG’s efforts in the U.S. to get permission to

distribute content outside of it. As reflected in a 2015

letter to the U.S. Trade Representative (“USTR”) (i.e.,

after the jurisdictionally relevant period), VNG

obtained licenses from certain U.S.-based music

studios to distribute content outside the U.S., but

didn’t seek a license to or distribute it inside the U.S.

CA9-5-ER-736-41. Similarly, sometimes VNG licensed

other content available on ZingMP3, including content

purportedly owned by plaintiff Lang Van, for

distribution outside the U.S. CA9-SER-7.

Plaintiff Lang Van is a California-headquartered

music label that produces and distributes rerecordings of Vietnamese music. CA9-2-ER-53-54;

CA9-SER-89. In 2014, Lang Van sued VNG, claiming

recordings’ (and album artwork’s) availability on

ZingMP3. CA9-2-ER-62.

Although a small percentage of VNG’s customers

downloaded the Application in the U.S., Lang Van

submitted no evidence that any person (other than its

employees for purposes of this litigation) downloaded

or streamed its songs in the U.S. Instead, it argued

that simply “making available” songs to ZingMP3

users universally (including in the U.S.) infringed its

copyrights.

C. The Decisions Below

The district court twice dismissed Lang Van’s

claims for lack of personal jurisdiction. App.21-22, 3031. After Lang Van appealed the first dismissal, the

Ninth Circuit remanded for jurisdictional discovery

without reaching the jurisdictional merits. App.19-20.

After discovery, briefing, and argument, the district

court again dismissed on jurisdictional grounds

because Lang Van had offered only “tenuous

connections” between VNG and the forum, and those

connections were unrelated to Lang Van’s claims.

App.28.

The Ninth Circuit again reversed in a published

opinion, finding personal jurisdiction under Rule

4(k)(2), based on Plaintiff Lang Van’s contacts with

the forum and Defendant VNG’s aggregated (but

unrelated) contacts with the U.S. generally. App.1416.

Although the relevant inquiry is whether VNG

purposefully targeted the forum, not a plaintiff who

happens to be in it, Walden, 571 U.S. at 285, the panel

found “VNG purposefully targeted American

companies and their intellectual property,” App.12.

Although VNG’s primary audience was in

Vietnam and VNG had never tried to develop a U.S.

market, the panel reasoned that jurisdiction could

nonetheless be predicated on VNG’s failure to avoid

the U.S., because VNG “did not choose to opt out of”

the U.S. or “geoblock access to Lang Van’s content” in

it. App.12-13.

And although the evidence showed that VNG used

the default worldwide release for its Application,

rather than affirmatively selecting not to release it in

the U.S., the panel held that making the application

accessible worldwide, including “to those living in the

United States” was purposeful because “[a]bsent

release by VNG,” the Application “was not available in

the United States.” App.3, 12. The panel’s adoption of

a “purposeful avoidance” standard aligned the Ninth

Circuit with the First, Plixer, 905 F.3d at 9, and

Fourth Circuits, Kurbanov, 963 F.3d at 354, and

against the explicit holding of the Fifth, Johnson, 21

F.4th at 323 (defendant “need not block [forum

residents] from visiting its site, receiving relevant

advertising, or buying [merchandise] to escape the

ability of [] courts [in the forum] to hear [plaintiff’s]

claim”), and implicit holdings of every other circuit.

See supra pp. 7-8.

Despite Ford’s requirement that contacts be

related to the underlying claims to have jurisdictional

significance, the panel also relied on contacts that

were unrelated to Lang Van’s claims, like a U.S.

trademark application where VNG noted that its VNG

company trademark was used in commerce in the

U.S., even though Lang Van’s claims didn’t relate to

VNG’s mark and VNG didn’t use its mark to promote

ZingMP3 in the U.S. App.14-15. Similarly, the panel

relied on VNG’s “contract[s] with U.S. businesses in

conjunction with Zing MP3,” including with U.S.

music studios for content not at issue in the litigation,

and Google and Apple, to make the Application

available in those companies’ online stores in

Vietnam. App.12-13.

Finally, the panel implied that geotargeted

advertising to forum-based users supports jurisdiction

over claims that do not stem from that advertising,

confirming the Ninth Circuit’s alignment with the

Fourth, Kurbanov, 963 F.3d at 348, 353, and contra

the Third, Hepp, 14 F.4th at 208, Fifth, Johnson, 21

F.4th at 320-23, and D.C. Circuits, Triple Up, 2018

WL 4440459, at *4. The panel observed that users

apparently in the U.S. viewed VNG’s website and

downloaded its Application, and VNG “created

geotargeted ads” specific to the location where they

were viewed. In fact, VNG did not create those

advertisements, which were for other entities, selected

by a third-party broker based in Singapore, and not

related to the claims in this litigation. The panel then

based jurisdiction in part on VNG’s purported

acknowledgment “that 10% of its revenue comes from

‘selling traffic to advertisers’ [for] ‘Western and other

Asian content.’” App.13-14 (alteration by panel).

REASONS FOR GRANTING THE PETITION

This Court should grant certiorari to answer the

question Walden deferred: how traditional specific

jurisdiction requirements apply to virtual contacts.

The lack of guidance on this critical and recurring

question has produced irreconcilable circuit splits.

While every circuit agrees that a website alone is not

enough to establish jurisdiction, they have splintered

over what is enough. That splintering is particularly

evident over issues of geoblocking and third-party

geotargeted advertising.

By finding purposeful-direction satisfied by

defendants’ failure to purposefully avoid a forum or by

third-party algorithm-directed advertising equally

tailored to any forum where the website is accessible,

the First, Fourth, and Ninth Circuits have negated

important constitutional safeguards for any foreign

defendant with an online presence. These circuits

credit contacts that go hand-in-hand with a website’s

universal accessibility without defendant directing

any affirmative or intentional conduct at the forum.

What’s more, by giving short shrift to the relatedness

requirement, they allow such contacts to form the

basis of specific jurisdiction over anything the

defendant does online. By contrast, the remaining

circuits require that virtual contacts—just like any

others—be (1) the product of defendant’s intentional

conduct and (2) related to the underlying claims. If

those two requirements are not met, such contacts are

not jurisdictionally significant, let alone sufficient.

This petition also presents a second question that

takes on particular urgency in the virtual world:

whether courts can use Rule 4(k)(2) to find jurisdiction

based on constitutionally insufficient contacts.

Although Rule 4(k)(2) cannot override the

Constitution, some courts, including the Ninth Circuit

here, have used it to do just that. The result is to

convert specific jurisdiction into general jurisdiction

over virtually every foreign entity doing business over

the internet.

Whether traditional constitutional principles

apply with equal force in an increasingly virtual world

is a question of critical importance. But right now that

question has different answers depending on the court

addressing it. Whether specific personal jurisdiction

exists thus depends on the Circuit where a case is

brought. That is particularly problematic for Rule

4(k)(2) jurisdiction, which exists—if at all—equally

across federal courts nationwide. This Court should

address the questions it previously left open, grant

certiorari, and resolve the split in the lower courts.

Both issues are cleanly presented, thoroughly briefed

before the lower courts, and squarely addressed in the

Ninth Circuit’s decision.

The Ninth Circuit’s opinion decided

important questions of federal law and

conflicts with decisions by this Court and

other appellate courts.

A. The circuits are split over the

application of specific jurisdiction to

virtual contacts.

For nearly eighty years, the Court has reaffirmed

that due process requires that defendants have

sufficient “minimum contacts” with a forum. Int’l

Shoe, 326 U.S. at 316. But this Court has left

questions about analyzing “virtual contacts for

another day.” Walden, 571 U.S. at 290 n. 9.

As lower courts have tried to answer those

questions themselves, a circuit split has emerged, with

the First, Fourth, and Ninth Circuits on one side, and

the remaining circuits on the other. The majority have

made clear that the “personal-jurisdiction inquiry

should not change just because a defendant operates a

web publication instead of a physical one.” Johnson,

21 F.4th at 325; see also NexLearn, LLC v. Allen

Interactions, Inc., 859 F.3d 1371, 1378 (Fed. Cir. 2017)

(“We evaluate [defendant’s] website as we would any

other contact under a specific jurisdiction theory.”).

Although courts initially classified websites on a

sliding-scale from “interactive” to “passive” to

determine whether website-based forum contacts

conferred personal jurisdiction, courts now recognize

that “[t]he interactivity of a website is [] a poor proxy

for adequate [forum] contacts.” Advanced Tactical,

751 F.3d at 803. That’s because in “today’s internet, it

is an extraordinarily rare website that is not

interactive at some level,” Fidrych v. Marriott Int’l,

Inc., 952 F.3d 124, 141 n.5 (4th Cir. 2020) (cleaned up),

and “[i]nteractivity reflects only a website’s capacity to

avail itself of a place.” Johnson, 21 F.4th at 319; see

Advanced Tactical, 751 F.3d at 803 (an “interactive

website” inquiry “hardly rules out anything in 2014”).

Now, courts generally agree that an interactive

website alone is not enough to satisfy specific

jurisdiction. See, e.g., Shrader, 633 F.3d at 1241 (citing

cases). Interactivity is instead “treated ... as a

prerequisite to [the] standard jurisdictional inquiry.”

Johnson, 21 F.4th at 319.

Courts, however, disagree about what more is

required. The First, Fourth, and Ninth Circuits have

fudged the traditional due process inquiry in deciding

that question, basing jurisdiction on virtual contacts

that are neither the result of a defendant’s intentional

conduct directed at the forum (as required by Walden)

nor related to the claims (as required by Ford).

1. The purposeful direction “‘inquiry boils down to

this: has [defendant] purposefully exploited the

[forum] market’ beyond simply operating an

interactive website accessible in the forum state and

sending emails to people who may happen to live

there?” Advanced Tactical, 751 F.3d at 802-03

(quoting be2 LLC, 642 F.3d at 558-59).

All but the First, Fourth, and Ninth Circuits

faithfully apply traditional jurisdictional principles to

this question. The Fifth Circuit, for example,

distinguished “substantial physical circulation of

print media” to a forum, “an affirmative act that

displays the publisher’s specific intent to target that”

forum, from websites, which are “‘circulated’ to the

public by virtue of their universal accessibility, which

exists from their inception.” Johnson, 21 F.4th at 325.

“That’s why clicks, visits, and views from forum

residents cannot alone show purposeful availment”

under Walden’s requirement that the defendant have

formed a contact with the forum. Id.

Similarly, the Seventh Circuit explained that the

mere “operation of an interactive website does not

show that the defendant has formed a contact with the

forum state” sufficient to find minimum contacts.

Advanced Tactical, 751 F.3d at 803. Virtual contacts

support jurisdiction under Walden only insofar as “the

focus [is not] on the users who signed up, but instead

on the deliberate actions by the defendant to target or

direct itself toward the forum state.” Id. (emphasis

added).

The Eighth Circuit has also held that a

defendant’s operating a “nationally accessible”

website to advertise, sell, and “carry out the

transaction for trademark infringing goods” doesn’t

support finding purposeful direction without

allegations that the defendant “uniquely or expressly

aimed its allegedly tortious act—the offering for sale

and selling of infringing goods—at [the forum].” Bros.

& Sisters in Christ, 42 F.4th at 952, 954 (cleaned up).

Absent a defendant’s “purposeful, targeted action

towards” the forum, a purchase by a consumer in the

forum on the defendant’s nationally available website

was not enough—defendant had to use the website to

“specifically target[]” forum consumers or the forum

market. Id. at 953-54 (emphasis added).

The Tenth Circuit has explained that to prevent

the “untenable result” of making a website operator

subject to specific jurisdiction in every state, the

emphasis must be “on the [operator] or site

intentionally directing his/her/its activity or operation

at the forum state rather than just having the activity

or operation accessible there.” Shrader, 633 F.3d at

1240. This “emphasis on intentionally directing

internet content or operations at the forum state has

its grounding in the ‘express aiming’ requirement the

Supreme Court developed in Calder.” Id. at 1241; see

also XMission, L.C. v. Fluent LLC, 955 F.3d 833 (10th

Cir. 2020). Under Calder and Walden, “the forum state

itself must be the focal point of the tort.” Shrader, 633

F.3d at 1244 (emphasis omitted).

And the Sixth Circuit found no specific

jurisdiction in Kentucky for tort claims arising out of

defendants’ tweets about Kentucky-based plaintiffs

where defendants “took no affirmative steps to direct

any communications to the plaintiffs or to anyone else

in Kentucky,” and there was “no evidence that the

defendants posted the tweets hoping to reach

Kentucky specifically as opposed to their Twitter

followers generally.” Blessing v. Chandrasekhar, 988

F.3d 889, 906 (6th Cir. 2021). In so holding, the court

cited the Eighth and Tenth Circuits, noting that “[o]ur

sister circuits have routinely held that posting

allegedly defamatory comments or information on an

internet site does not, without more, subject the poster

to personal jurisdiction wherever the posting could be

read (and the subject of the posting may reside).” Id.

at 905 nn.15-16 (cleaned up) (citing Fifth and Fourth

Circuits).

Consistent with well-settled jurisdictional

principles these Circuits declined to find jurisdiction

absent some evidence of defendants’ purposeful

exploitation of the forum, like advertising its website

specifically to users within the forum, Advanced

Tactical, 751 F.3d at 803, or making significant sales

to consumers in the forum through the website,

compare Del Valle v. Trivago GMBH, 56 F.4th 1265,

1273, 1276 (11th Cir. 2022) (finding purposeful

direction where defendant websites specifically

targeted and sold reservations for at-issue properties

to forum residents); Chloe v. Queen Bee of Beverly

Hills, LLC, 616 F.3d 158, 171 (2d Cir. 2010) (finding

purposeful availment where defendant’s website

offered and sold handbags, including at least one

counterfeit bag, to New York consumers); Neogen

Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 890-91

(6th Cir. 2002) (finding purposeful availment where

defendant granted passwords to Michigan residents as

part of a contract for its genetic testing services and

had 14 yearly contracts with Michigan residents

(cleaned up)); with NexLearn, 859 F.3d at 1377 (no

jurisdiction over defendant whose website allowed

users to select “Kansas” when ordering allegedly

infringing product, absent evidence of actual sales to

Kansas); Nuance Commc’ns, Inc. v. Abbyy Software

House, 626 F.3d 1222, 1235 (Fed. Cir. 2010) (no

purposeful direction even though defendant’s website

“promote[d] the sale of [infringing] products in

California”); GTE New Media Servs. Inc. v. BellSouth

Corp., 199 F.3d 1343, 1350 (D.C. Cir. 2000) (no

purposeful direction over defendants with interactive

websites absent evidence that forum residents

“actually engage[d] in any business transactions with

the defendants”). With evidence of defendants’

deliberate acts to target the forum, courts applying

traditional due process principles have found

jurisdiction. Advanced Tactical, 751 F.3d at 803.

Without it, they have not.

The First, Fourth, and Ninth Circuits, however,

depart from the traditional due process inquiry for

internet contacts. They have found jurisdiction based

on contacts that are part of having a universally

accessible website, but that don’t satisfy the

purposeful direction requirement—specifically, (a) the

failure to geoblock the website from the forum, and

(b) the use of third-party algorithm-based advertising

to tailor all ads to the location where they are viewed. 3

a. By allowing jurisdiction based on defendants’

failure to geoblock forums, the First, Fourth, and

Ninth Circuits allow jurisdiction based on a

defendant’s failure to act. In so doing, they convert the

requirement that plaintiffs show defendants

purposefully availed themselves of a forum to

establish jurisdiction into a requirement that

defendants show that they purposefully avoided a

forum to defeat it.

In an unpublished decision, the Ninth Circuit previously

correctly recognized that uploading videos to a universally

accessible website from Canada was not an act expressly aimed

at the U.S., Werner v. Dowlatsingh, 818 F. App’x 671 (9th Cir.

2020).

A failure to act cannot support jurisdiction under

Walden, 571 U.S. at 286, and Calder, 465 U.S. at 789.

Most courts thus do not require a defendant to

geoblock its universally accessible website based on

the user’s perceived location to demonstrate that it

has not expressly aimed an act at the forum and thus

avoid jurisdiction. See, e.g., supra 7-8.

Indeed, the Fifth Circuit specifically rejected the

proposition that a defendant was required to “block

Texans from visiting its site, receiving relevant

advertising, or buying T-shirts to escape the ability of

Texas courts to hear [the plaintiff’s] libel claim.”

Johnson, 21 F. 4th at 323 (emphasis added). The court

observed that “[f]airness [] dictates that a defendant

must have some chance to limit or avoid its exposure

to a particular state’s courts,” and stressed that

defendants needn’t “wall themselves off from the

world.” Id. at 322. Instead, defendants “may avoid the

authority of Texas’s courts by not purposefully

directing at Texas the conduct that produced [the

plaintiff’s] suit.” Id. at 323. Even though the allegedly

libelous article was available in Texas alongside

advertisements targeted to Texans, the court found no

jurisdiction there under traditional notions of due

process because the defendant “did not aim the alleged

libel at Texas or reach into Texas to share it there.” Id.

But the First, Fourth, and Ninth Circuits found a

defendant’s failure to geoblock its website in the forum

did constitute purposeful direction. The First Circuit,

examining nationwide contacts in Plixer, held that a

defendant’s “failure to implement [accessibility]

restrictions, coupled with its substantial U.S.

business, provides an objective measure of its intent to

serve customers in the U.S. market and thereby

profit.” Plixer, 905 F.3d at 9 (emphasis added). The

court reasoned that “[i]f a defendant tries to limit U.S.

users’ ability to access its website, [] that is surely

relevant to its intent not to serve” the U.S., so the

“converse is true,” too. Id. But that reasoning ignores

specific jurisdiction’s constitutional requirement of

intentional, affirmative conduct. Walden, 571 U.S. at

286.

The Fourth Circuit similarly found specific

jurisdiction in Virginia where the defendant “knew the

Websites were serving Virginia visitors and yet took

no actions to limit or block access.” Kurbanov, 963 F.3d

at 354 (emphasis added). That analysis incorrectly

focused on the users’ conduct, not defendant’s: “[the

defendant] made two globally accessible websites and

Virginia visitors used them for alleged music piracy.”

Id.

So too here: the Ninth Circuit based jurisdiction

on a finding that “VNG clearly did not attempt to limit

U.S. users’ ability to access its website.” App.13

(emphasis added). Like the First and Fourth Circuits,

it focused on the U.S.-based individuals’ use of VNG’s

universally accessible platform and on what VNG did

not do, rather than what it did.

Such holdings, which “equate[] a failure to

geoblock with purposeful availment,” “effectively

mandate geoblocking for any website operator wishing

to avoid suit in the United States.” Triple Up, 235 F.

Supp. 3d at 25. The result is to “replace the purposeful

availment standard with a requirement of purposeful

avoidance.” Id. at 26 (cleaned up). As the majority of

circuits correctly recognize, that is not the law.

b. The Fourth and Ninth Circuits also stand alone

in considering “geotargeted advertising” on a

universally accessible website—that is, using

“visitors’ location data to tailor advertising to them,”

Johnson, 21 F.4th at 320—as jurisdictionally relevant.

That directly conflicts with holdings of the Fifth and

D.C. Circuits.

As the Fifth Circuit explained, the defendant’s

decision to contract with a third-party agency to select

and show other companies’ geographically relevant

ads to users on defendant’s website based on those

users’ perceived location meant the defendant’s

website “shows ads to all comers; it treats Texans like

everyone else,” rather than “target[ing] Texas

specifically.” Id. at 321, 326. Geotargeted advertising

does not satisfy purposeful direction because “[t]o

target every user everywhere, as those ads do, is to

target no place at all.” Id. at 321-22 (footnote omitted).

“Accessibility alone cannot sustain [] jurisdiction. If it

could, lack of personal jurisdiction would be no defense

at all.” Johnson, 21 F.4th at 320.

The D.C. Circuit also held that under Walden, the

defendant’s use of third-party agencies to place ads on

its website did not support jurisdiction absent facts

plausibly showing that the defendant “played a

material role in pairing advertisements with specific

videos based on viewership.” Triple Up, 2018 WL

4440459, at *3. That the defendant “indisputably

derive[d] revenue” from “geographically targeted”

advertisements accompanying its videos and “act[ed]

to maximize usage of its websites” was not enough to

show purposeful availment. Id. (cleaned up).

By contrast, the Fourth Circuit held that by

contracting with a third-party broker to sell ad space

to advertisers for “location-based advertising,” the

defendant had purposefully availed itself of Virginia.

Kurbanov, 963 F.3d at 355. The court reasoned that

such advertising involved collecting personal data

from Virginia visitors, selling that data and ad spaces

to advertising brokers, and using location-based

advertising “to pique visitors’ interest and solicit

repeated visits.” Id. Yet the court made no finding that

any of these actions were specific to Virginia users,

who were treated the same as users from all the other

global locations from which the defendant’s

universally accessible website could be accessed, let

alone to the forum. Nor did it find that the defendant

advertised the website or its ad space in Virginia or

controlled ad selection on its website. Id. In other

words, the Fourth Circuit based purposeful availment

on the conduct of advertising brokers, not defendant,

and that applied generally to defendant’s universally

accessible website, not specifically to the forum.

The decision here similarly emphasized VNG’s

revenue from geotargeted advertising controlled by a

third-party broker in Singapore, over whom VNG

exercised no control other than prohibiting

advertisements that would be illegal in Vietnam. CA91-SER-82. By finding that location-based advertising

that applied to every location in the world supported

jurisdiction in the U.S., the decision aligns with

Kurbanov, and, within the Ninth Circuit, with Mavrix,

which found jurisdiction in California based on thirdparty advertisers’ targeting of Californians because

the defendant knew “actually or constructively ...

about its California user base” and “exploit[ed] that

base for commercial gain by selling space on its

website for advertisements.” 647 F.3d at 1230. It

conflicted, however, with the Fifth and D.C. Circuits,

supra, as well as with AMA Multimedia, LLC v.

Wanat, which held that “[i]f such geo-located