Amicus Curiae Brief — GlaxoSmithKline, LLC, et al., Petitioners v. Superior Court of California, Alameda County

No. 23-1320

In the Supreme Court of the United States

GLAXOSMITHKLINE, LLC, ET AL.,

Petitioners,

v.

SUPERIOR COURT OF CALIFORNIA, COUNTY OF

ALAMEDA,

Respondent.

On Petition for a Writ of Certiorari to the

Court of Appeal of California, First District

BRIEF OF THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA

AS AMICUS CURIAE IN SUPPORT

OF PETITIONERS

JENNIFER B. DICKEY

ANDREW R. VARCOE

KEVIN R. PALMER

U.S. Chamber

Litigation Center

1615 H Street, NW

Washington, DC 20062

NICOLE A. SAHARSKY

Counsel of Record

DANIEL E. JONES

WAJDI C. MALLAT

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

nsaharsky@mayerbrown.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page(s)

Interest Of The Amicus Curiae ...................................1

Introduction And Summary Of Argument .................2

Argument .....................................................................4

I. Courts May Not Assert Specific Jurisdiction

Over A Brand-Name Manufacturer For

Claims Alleging Injury From A Generic

Product ...................................................................4

A. Specific Jurisdiction Requires That The

Claims Arise Out Of Or Relate To The

Defendant’s Contacts With The Forum ...........5

B. The Defendants Here Lack Sufficient

Forum Contacts To Permit The Exercise

Of Specific Personal Jurisdiction .....................8

C. The Decision Below Extends

California’s Authority Far Beyond The

Bounds Permitted By The Constitution ........ 10

D. Review Is Warranted Now ............................. 12

II. The Rule Applied By The Court Below

Harms Courts, Businesses, And The

Sovereignty Of Other States ............................... 13

A. Overly Expansive Approaches To

Specific Jurisdiction Invite Cause-OfAction Shopping .............................................. 14

B. Overly Expansive Approaches To

Specific Jurisdiction Impose Greater

Uncertainty On Businesses ............................ 16

C. Overly Expansive Approaches To

Specific Jurisdiction Intrude On Other

States’ Sovereignty ......................................... 17

Conclusion ................................................................. 18

ii

Cases

TABLE OF AUTHORITIES

Page(s)

Bell v. Pfizer, Inc.,

716 F.3d 1087 (8th Cir. 2013) .............................. 11

BNSF Ry. v. Tyrrell,

581 U.S. 402 (2017) ................................................ 5

Bristol-Myers Squibb Co. v. Superior

Court,

582 U.S. 255 (2017) ......................... 2, 5-7, 9, 11, 14

Daimler AG v. Bauman,

571 U.S. 117 (2014) ...................................... 1, 5, 14

Demahy v. Schwarz Pharma, Inc.,

702 F.3d 177 (5th Cir. 2012) ...........................11-12

Ford Motor Co. v. Montana Eighth Jud.

Dist. Ct.,

592 U.S. 351 (2021) .............. 2, 4, 6-8, 10-11, 16-17

Foster v. Am. Home Prods.,

29 F.3d 165 (4th Cir. 1994) .................................. 12

Guarino v. Wyeth, LLC,

719 F.3d 1245 (11th Cir. 2013) ............................ 11

Hertz Corp. v. Friend,

559 U.S. 77 (2010) ................................................ 16

Huck v. Wyeth, Inc.,

850 N.W.2d 353 (Iowa 2014)................................ 11

iii

Cases (continued)

Page(s)

J. McIntyre Machinery, Ltd. v. Nicastro,

564 U.S. 873 (2011) .............................................. 16

McNair v. Johnson & Johnson,

818 S.E.2d 852 (W. Va. 2018) .............................. 11

Rafferty v. Merck & Co.,

92 N.E.3d 1205 (Mass. 2018) ................................. 8

Salomon S.A. v. LaFond,

971 N.E.2d 1277 (Mass. 2012) ............................. 12

Schrock v. Wyeth, Inc.,

727 F.3d 1273 (10th Cir. 2013) ............................ 11

Smith v. Wyeth, Inc.,

657 F.3d 420 (6th Cir. 2011) ................................ 12

Stanley v. Wyeth, Inc.,

991 So. 2d 31 (La. Ct. App. 1st Cir.

2008) ..................................................................... 11

State Farm Gen. Ins. v. JT’s Frames,

Inc.,

104 Cal. Rptr. 3d 573 (Ct. App. 2010) ................. 13

T.H. v. Novartis Pharms. Corp.,

407 P.3d 18 (Cal. 2017) .......................................... 8

Walden v. Fiore,

571 U.S. 277 (2014) .......................................... 5, 17

World-Wide Volkswagen Corp. v.

Woodson,

444 U.S. 286 (1980) ........................................ 11, 17

iv

Cases (continued)

Page(s)

In re Zantac (Ranitidine) Prods. Liab.

Litig.,

510 F. Supp. 3d 1175 (S.D. Fla.

2020) ..................................................................... 15

In re Zantac (Ranitidine) Prods. Liab.

Litig.,

546 F. Supp. 3d 1192 (S.D. Fla.

2021) ....................................................................... 3

In re Zantac (Ranitidine) Prods. Liab.

Litig.,

644 F. Supp. 3d 1075 (S.D. Fla.

2022) ..................................................................... 15

Constitution, Statutes, and Rule

U.S. Const. Amend. XIV.......................................... 2, 6

28 U.S.C. § 1291 ........................................................ 12

28 U.S.C. § 1292(b) .................................................... 12

21 C.F.R. § 314.94(a)(8) ............................................... 8

Cal. Civ. Proc. Code § 418.10(c) ................................ 13

Other Authorities

Carol Rice Andrews, The Personal Jurisdiction Problem Overlooked in the

National Debate About “Class Action

Fairness,” 58 S.M.U. L. Rev. 1313

(2005) .................................................................... 16

v

Other Authorities (continued)

Page(s)

Andrew S. Pollis, The Need For NonDiscretionary Interlocutory Appellate

Review in Multidistrict Litigation, 79

Fordham L. Rev. 1643 (2011) .............................. 13

U.S. Chamber Inst. for Legal Reform,

BMS Battlegrounds: Practical Advice for Litigating Personal Jurisdiction After Bristol-Myers (June 2018)................... 14

U.S. Chamber Institute for Legal Reform, Trials and Tribulations: Contending with Bellwether and MultiPlaintiff Trials in MDL Proceedings

(Oct. 2019). ........................................................... 13

INTEREST OF THE AMICUS CURIAE

The Chamber of Commerce of the United States of

America is the world’s largest business federation. It

represents approximately 300,000 members and indirectly represents the interests of more than three million companies and professional organizations of

every size, in every industry sector, and from every

region of the country. An important function of the

Chamber is to represent the interests of its members

in matters before Congress, the Executive Branch,

and the courts. To that end, the Chamber regularly

files amicus curiae briefs in cases, like this one, that

raise issues of concern to the Nation’s business community.1

Many of the Chamber’s members conduct business in States other than their place of incorporation

and principal place of business (the forums in which

they are subject to general personal jurisdiction, see

Daimler AG v. Bauman, 571 U.S. 117, 137 (2014)).

They therefore have a substantial interest in the rules

governing the extent to which a State can subject nonresident corporations to specific personal jurisdiction.

Amicus files this brief because the decision below

is contrary to the due process limits on personal jurisdiction recognized by this Court. The California Court

of Appeal allowed an out-of-State manufacturer of

products sold in a nationwide market to be subject to

Pursuant to Rule 37.6, amicus curiae states that no counsel

for any party authored this brief in whole or in part and that no

entity or person other than amicus curiae, its members, or its

counsel, made any monetary contribution intended to fund the

preparation or submission of this brief. The parties were notified

of amicus’s intent to file this brief nine days before the due date,

and they have indicated that they do not object to the timeliness

of the notice.

1

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specific personal jurisdiction based not on any purposeful activities of its own in the forum State, but rather based on the sales and use of its competitors’

products in that State. If uncorrected, that approach

to specific jurisdiction would impose substantial harm

on businesses and the judicial system. The Court

should grant the petition to address this important issue.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This petition presents a relatively rare opportunity

to resolve a clear split of authority on an important

issue of specific personal jurisdiction. This Court has

stressed that the Fourteenth Amendment places strict

limits on the exercise of personal jurisdiction by

States to ensure fair notice to defendants about where

they may be sued. In particular, in Bristol-Myers

Squibb Co. v. Superior Court, 582 U.S. 255 (2017), the

Court made clear that each plaintiff must show a sufficient connection between his or her own claim and

the defendant’s contacts with the forum State. More

recently, in Ford Motor Co. v. Montana Eighth Judicial District Court, the Court reiterated that specific

jurisdiction requires a claim to “arise out of or relate

to a defendant’s contacts with the forum.” 592 U.S.

351, 359 (2021) (quotation marks omitted). While the

phrase “relate to” does not require causation, it “incorporates real limits” and requires “a connection between a plaintiff ’s suit and a defendant’s activities” in

the forum State. Id. at 361-362 (quotation marks

omitted).

Courts are divided about how these limits apply to

failure-to-warn claims in the pharmaceutical context.

When a company develops and obtains approval for a

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new drug, it is allowed to exclusively sell the drug under its brand name for a certain period of time. After

that time expires, the company’s competitors may sell

a generic version of the drug using the same warning

label as the brand-name product. Two States recognize a cause of action under which users of the generic

drug can sue a brand-name manufacturer for failure

to warn based on alleged concerns with a warning label.

The federal district court overseeing a multidistrict litigation involving such claims correctly recognized that brand-name manufacturers’ contacts with

a State in marketing and selling only their own products “do not relate to the claim” of a plaintiff who asserts injury from generic medications sold by competitors. In re Zantac (Ranitidine) Prods. Liab. Litig.,

546 F. Supp. 3d 1192, 1213 (S.D. Fla. 2021). But the

California courts – both here and in other cases – have

allowed plaintiffs to pursue precisely the same claims

on this foreclosed theory of specific personal jurisdiction. Plaintiffs have never asserted injuries from the

purchase or use of Zantac. There is a complete disconnect between the plaintiffs’ claims and petitioners’

conduct in the forum. Petitioners designed the warning label elsewhere, and the plaintiffs are not claiming

injury from any product that petitioners manufactured, marketed, or sold in California or anywhere

else. Yet the California courts have asserted their authority to hear these claims.

If left uncorrected, the California courts’ approach

would impose enormous costs on courts, businesses,

and consumers. It would encourage cause-of-action

shopping by plaintiffs’ lawyers, who will select jurisdictions specifically because they have adopted plaintiff-friendly standards for liability. Businesses would

4

not be able to predict where they could be sued or to

structure their conduct to avoid facing suit in unfavorable jurisdictions, even if only their competitors sell

products in those jurisdictions. And States would be

empowered to regulate conduct that occurred entirely

outside their borders – contrary to the principles of

federalism that animate this Court’s personal jurisdiction precedents. All of this would drive up the costs

of litigation, which would undoubtedly be passed on to

consumers and employees. This Court’s review is urgently needed.

ARGUMENT

I.

Courts May Not Assert Specific Jurisdiction

Over A Brand-Name Manufacturer For

Claims Alleging Injury From A Generic

Product

Here, the California Court of Appeal exercised

specific jurisdiction over petitioners for claims by

plaintiffs who allege harm from generic-brand

ranitidine sold by petitioners’ competitors – not petitioners’ own products – on the theory that petitioners’

brand-name warning label dictates the content of the

generic label. That approach is directly contrary to

this Court’s Due Process precedents. Petitioners did

not design the warning label in California, and the

plaintiffs are not claiming injury from the purchase or

use of petitioners’ own brand-name products. The

plaintiffs’ claims therefore do not “arise out of or relate

to” petitioners’ forum contacts. Ford Motor, 592 U.S.

at 359 (quotation marks omitted).

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A. Specific Jurisdiction Requires That The

Claims Arise Out Of Or Relate To The Defendant’s Contacts With The Forum

In recent years, this Court has brought rigor to

both general and specific personal jurisdiction. The

Court has held that a corporate defendant is subject

to general jurisdiction only in the State or States in

which it is “fairly regarded as at home,” generally the

corporation’s State of incorporation and the State

where it has its principal place of business. Daimler,

571 U.S. at 137 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011)); see

BNSF Ry. v. Tyrrell, 581 U.S. 402, 413-414 (2017).

The Court also has clarified the due-process limits

on courts’ exercise of specific personal jurisdiction.

The linchpin of specific jurisdiction is “the relationship among the defendant, the forum, and the litigation.” Daimler, 571 U.S. at 126. “For a State to exercise jurisdiction consistent with due process, the defendant’s suit-related conduct must create a substantial connection with the forum State.” Walden v.

Fiore, 571 U.S. 277, 284 (2014) (emphases added; quotation marks omitted). This substantial connection is

required to ensure that the forum State has a legitimate interest in regulating the defendant’s conduct on

which the claim is based. For that reason, this Court

has “consistently rejected attempts to satisfy the defendant-focused ‘minimum contacts’ inquiry by

demonstrating contacts between the plaintiff (or third

parties) and the forum State.” Ibid.

In Bristol-Myers Squibb Co. v. Superior Court, 582

U.S. 255 (2017) (BMS), this Court made unmistakably

clear that a court may not exercise specific jurisdiction

over a particular plaintiff ’s claim unless the defendant has itself engaged in the in-state activity on which

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that plaintiff ’s claim is based. In that case, 86 California residents and 592 plaintiffs from other States

sued Bristol-Myers Squibb in California, alleging injuries from taking the drug Plavix. 582 U.S. at 259.

The nonresident plaintiffs did not claim any connections with California. Id. at 264. Nonetheless, the

California Supreme Court upheld the state court’s assertion of specific jurisdiction over the nonresidents’

claims on the theory that the nonresidents’ claims

were “similar in several ways” to the claims of the California residents. Id. at 260.

This Court reversed, finding no “adequate link between the State and the nonresidents’ claims.” BMS,

582 U.S. at 264. As the Court explained, under the

Fourteenth Amendment’s Due Process Clause, a defendant must have a sufficient relationship to the forum with respect to each plaintiff ’s claim; the fact that

the defendant has the necessary relationship with respect to some plaintiffs’ claims is not sufficient. Id. at

264-265. That is true even when the claims raised by

the resident and nonresident plaintiffs are similar.

Ibid.

This rule serves an important due process function by providing defendants with “fair warning” of

where they are likely to be sued. Ford Motor, 592 U.S.

at 360 (quoting Burger King Corp. v. Rudzewicz, 471

U.S. 462, 472 (1985)). The rule also promotes foundational principles of federalism by “ensur[ing] that

States with ‘little legitimate interest’ in a suit do not

encroach on States more affected by the controversy.”

Ibid. (quoting BMS, 582 U.S. at 263).

In Ford Motor, this Court reiterated that the “‘essential foundation’” of specific personal jurisdiction “is

a ‘strong relationship among the defendant, the forum, and the litigation.’ ” 592 U.S. at 365 (quoting

7

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466

U.S. 408, 414 (1984)). There, the plaintiffs brought

product-liability claims stemming from two separate

car accidents involving their Ford vehicles. Although

the plaintiffs purchased the vehicles outside of the forum States, the Court held that the exercise of specific

jurisdiction was proper because Ford “deliberately,”

“systematically,” and “extensively” targeted the forum

states “for the very vehicles that the plaintiffs allege

malfunctioned and injured them.” Id. at 364, 365,

368.

As the Court stressed, “[t]hat does not mean anything goes.” Ford Motor, 592 U.S. at 362. Instead,

“[t]he plaintiff ’s claims * * * ‘must arise out of or relate to the defendant’s contacts’ with the forum.” Id.

at 359 (quoting BMS, 582 U.S. at 262). The Court emphasized that “the phrase ‘relate to’ incorporates real

limits, as it must to adequately protect defendants foreign to a forum.” Id. at 362. At bottom, the contacts

with the forum “must be the defendant’s own choice”

and must create the required “affiliation between the

forum and the underlying controversy.” Id. at 359-360

(emphasis added; quotation marks and alterations

omitted).

For example, a defendant may be haled into a foreign forum “if its allegedly defective merchandise has

there been the source of injury to its owner or to others” so long as it has “purposefully avail[ed] itself of

the [forum’s] market” and thus “has clear notice of its

exposure in that State to suits arising from local accidents involving its products.” Ford Motor, 592 U.S. at

363 (emphasis added; quotation marks omitted).

Thus, in Ford Motor, the exercise of specific jurisdiction turned on the fact that the auto accidents involved Ford-made and Ford-branded vehicles, given

8

Ford’s deliberate and extensive targeting of the forum

States for those very vehicles. Id. at 365.

B. The Defendants Here Lack Sufficient Forum Contacts To Permit The Exercise Of

Specific Personal Jurisdiction

The California court’s exercise of specific personal

jurisdiction in this case runs afoul of these foundational principles.

California and Massachusetts have adopted an idiosyncratic approach to product-liability claims based

on pharmaceutical warning labels. While in most jurisdictions, a manufacturer can be held liable only for

injuries caused by its own product, California and

Massachusetts allow a brand-name manufacturer to

be held liable for injuries caused by generic products

made by other companies. Under this novel theory of

“innovator liability,” the brand-name manufacturer is

liable because the content of the generic product’s

warning label is dictated by the brand-name product’s

warning label. See Rafferty v. Merck & Co., 92 N.E.3d

1205, 1220 (Mass. 2018); T.H. v. Novartis Pharms.

Corp., 407 P.3d 18, 22 (Cal. 2017); see also 21 C.F.R.

§ 314.94(a)(8).

Whatever the merit of that theory as a matter of

state product-liability law, due process does not permit the California court’s exercise of specific jurisdiction here. Petitioners all are out-of-state defendants,

Pet. App. 4, 25, and they designed and revised the

Zantac product label in their home States, not in California, Pet. App. 6. Moreover, the relevant plaintiffs

did not purchase brand-name Zantac, but rather generic-brand ranitidine sold by petitioners’ competitors. The requisite “strong relationship,” Ford Motor,

592 U.S. at 365 (quotation marks omitted), between

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those plaintiffs’ claims and petitioners’ in-state conduct therefore is absent.

California users of a brand-name product might

have similar claims about the warning label as California users of third-party generic products would

have. But as BMS makes clear, that similarity alone

is not enough to permit generic-user plaintiffs to establish specific jurisdiction over brand-name manufacturers. Rather, each claim brought by each plaintiff must relate to the manufacturer’s California conduct. The plaintiffs in BMS included both California

and non-California residents bringing “products liability, negligent misrepresentation, and misleading

advertising claims” predicated on their use of Plavix.

582 U.S. at 259. But “[t]he nonresident plaintiffs did

not allege that they obtained Plavix through California physicians or from any other California source;

nor did they claim that they were injured by Plavix or

were treated for their injuries in California.” Ibid.

That doomed their efforts to invoke specific jurisdiction in California, even though the California residents’ similar claims could proceed in California

court. “The mere fact that other plaintiffs were prescribed, obtained, and ingested Plavix in California –

and allegedly sustained the same injuries as did the

nonresidents – does not allow the State to assert specific jurisdiction over the nonresidents’ claims.” Id. at

265. Accordingly, the mere fact that plaintiffs here

may be able to bring claims against other defendants

– petitioners’ competitors – does not permit specific

jurisdiction.

As this Court explained in BMS, a contrary rule

would contravene the fairness, predictability, and federalism interests that underlie this Court’s specificjurisdiction cases. BMS, 582 U.S. at 263-267; see pp.

10

5-6, supra. The same logic applies here, and precludes

the exercise of specific jurisdiction over the claims of

the generic-user plaintiffs.

C. The Decision Below Extends California’s

Authority Far Beyond The Bounds Permitted By The Constitution

This Court’s rigorous specific jurisdiction standard prevents illegitimate exercises of a State’s authority. The facts of this case provide a clear example of

that abuse.

The generic-brand ranitidine used by the relevant

plaintiffs was manufactured and sold by petitioners’

third-party competitors. Although the generic warning label has to match the brand-name label, petitioners did not design the brand-name label in California.

And the generic-user plaintiffs’ injuries are not premised on using the brand-name manufacturers’ drug in

California. The generic-user plaintiffs’ claims thus

are not related to any in-state conduct by petitioners.

This case stands in stark contrast to Ford Motor.

There, the defendant “urge[d] Montanans and Minnesotans to buy its vehicles, including (at all relevant

times) Explorers and Crown Victorias” – the two vehicles “at the heart of the suits.” 592 U.S. at 356, 365

(emphasis added). And the underlying controversies

related to auto accidents involving the defendant’s

own vehicles, vehicles that it marketed and sold in the

forum States.

Here, the plaintiffs used generic products marketed and sold by a different company. Under the theory of specific jurisdiction below, because the brandname manufacturer is responsible for the content of

the warning label, it can be haled into the courts of

any State in which competing generic products are

11

sold – even if the brand-name manufacturer has never

marketed or sold any products in that State, or, as petitioner GlaxoSmithKline did here, stops selling the

brand-name product altogether.

By reaching out to exercise specific jurisdiction

over the claims of generic-user plaintiffs, the California courts have “reach[ed] out beyond the limits imposed on them by their status as coequal sovereigns in

a federal system.” World-Wide Volkswagen Corp. v.

Woodson, 444 U.S. 286, 292 (1980). That runs afoul of

this Court’s recognition that the Constitution “seeks

to ensure that States with ‘little legitimate interest’ in

a suit do not encroach on States more affected by the

controversy.” Ford Motor, 592 U.S. at 360 (quoting

BMS, 582 U.S. at 263).

The California courts’ overreach is especially

problematic given the uncommon and questionable

nature of the claim. California and Massachusetts

permit a view of warning-label liability that widely expands potential tort liability for drug manufacturers

for sales made by their competitors. No other State

has adopted this theory, and many courts have rejected it. See, e.g., McNair v. Johnson & Johnson, 818

S.E.2d 852, 866 (W. Va. 2018); Huck v. Wyeth, Inc.,

850 N.W.2d 353, 377 (Iowa 2014); Stanley v. Wyeth,

Inc., 991 So. 2d 31, 34 (La. Ct. App. 1st Cir. 2008).

Further, “every federal circuit court to address this issue – applying the law of numerous states – has consistently” predicted that the relevant State’s law

would not recognize this cause of action. Schrock v.

Wyeth, Inc., 727 F.3d 1273, 1285 (10th Cir. 2013) (Oklahoma law). See, e.g., Guarino v. Wyeth, LLC, 719

F.3d 1245, 1252 (11th Cir. 2013) (Florida law); Bell v.

Pfizer, Inc., 716 F.3d 1087, 1093 (8th Cir. 2013) (Arkansas law); Demahy v. Schwarz Pharma, Inc., 702

12

F.3d 177, 183 (5th Cir. 2012) (per curiam) (Louisiana

law); Smith v. Wyeth, Inc., 657 F.3d 420, 423-424 (6th

Cir. 2011) (Kentucky law); Foster v. Am. Home Prods.,

29 F.3d 165, 170 (4th Cir. 1994) (Maryland law).

California and Massachusetts should not be allowed to expand the reach of their idiosyncratic laws

by permitting lawsuits against defendants in their

States that are based solely on the defendants’ conduct in other States.

D. Review Is Warranted Now

The Court’s intervention is warranted now because the petition presents a rare opportunity to resolve the conflict over an important personal jurisdiction issue that tends to evade appellate review.

In most courts, including federal courts, the issue

often will evade review because orders on personal jurisdiction are not typically appealable until after entry of a final judgment. See 28 U.S.C. § 1291. For

example, dismissals of claims against brand-name

manufacturers by generic-user plaintiffs rarely will

result in an appealable order, given that there almost

always will be remaining claims by users of the brandname product. And the remaining claims may ultimately be dismissed on other grounds (as in the federal MDL here), mooting any appeal from an earlier

personal-jurisdiction ruling.

In the converse scenario where a court denies a

motion to dismiss for lack of personal jurisdiction,

there is again no final judgment. Interlocutory review

is typically not available.

See, e.g., 28 U.S.C.

§ 1292(b); Salomon S.A. v. LaFond, 971 N.E.2d 1277,

1277 (Mass. 2012) (rejecting petition for interlocutory

appellate review from denial of personal-jurisdiction

motion). Moreover, the sheer number of claims in

13

mass-tort product-liability litigation, and their aggregate stakes, make global settlement a far more likely

resolution than an appealable final judgment. See

Andrew S. Pollis, The Need For Non-Discretionary Interlocutory Appellate Review in Multidistrict Litigation, 79 Fordham L. Rev. 1643, 1667-1670 (2011); U.S.

Chamber Institute for Legal Reform, Trials and Tribulations: Contending with Bellwether and MultiPlaintiff Trials in MDL Proceedings 4-5 (Oct. 2019),

https://perma.cc/H5ZU-ZT5E.

California state court is different. Unlike the

courts in most jurisdictions, it requires defendants to

appeal immediately from an adverse personal-jurisdiction ruling. See Cal. Civ. Proc. Code § 418.10(c);

State Farm Gen. Ins. v. JT’s Frames, Inc., 104 Cal.

Rptr. 3d 573, 580 (Ct. App. 2010). That procedural

rule has led to an opportunity for this Court to resolve

the critically important and purely legal question presented by the petition. California’s expansive exercise

of specific jurisdiction is squarely at odds with the

fairness, predictability, and federalism principles undergirding this Court’s limits on specific jurisdiction.

If this Court declines to review California’s unconstitutional exercise of specific jurisdiction, this critical

question will continue to evade appellate review in

state and federal courts.

II. The Rule Applied By The Court Below

Harms Courts, Businesses, And The Sovereignty Of Other States

The decision below threatens to impose severe

burdens on the business community, the courts, and

the federal system. This Court’s intervention is urgently needed to correct the erroneous standard applied by the court below and eliminate these unjustified burdens.

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A. Overly Expansive Approaches To Specific Jurisdiction Invite Cause-Of-Action

Shopping

The plaintiffs’ bar has long used expansive theories of personal jurisdiction to bring cases in plaintifffriendly “magnet jurisdictions” known to produce

massive and unjustified damages awards. See U.S.

Chamber Inst. for Legal Reform, BMS Battlegrounds:

Practical Advice for Litigating Personal Jurisdiction

After Bristol-Myers 3-5 (June 2018), perma.cc/8QYZC48M. This Court sought to curtail those abuses by

limiting general jurisdiction to a defendant’s home

State(s), see Daimler, 571 U.S. at 137, and by requiring plaintiffs in a mass action to establish specific jurisdiction as to each claim, see BMS, 582 U.S. at 262.

Expansive theories of specific jurisdiction like the one

adopted by the California court create an end-run

around these limits.

This case presents an even more acute problem.

The plaintiffs’ lawyers here are not engaged in just forum shopping but cause-of-action shopping. Only California and Massachusetts recognize the novel theory

of innovator liability. Under this theory, a brandname manufacturer may be held liable for its competitors’ sale of generic-name products simply because

the brand-name manufacturer designed the warning

labels. Although courts in other States are capable of

applying California law, plaintiffs’ lawyers likely perceive California as a more hospitable forum for claims

based on this unusual theory of liability. The result is

that they have brought many cases by purchasers of

generic-brand products in California rather than in

the brand-name manufacturers’ home State.

This case, and the sequence of litigation surrounding ranitidine, illustrates the problem. A private

15

online pharmacy initially filed a citizen petition with

the Food and Drug Administration concerning

ranitidine, which prompted the filing of lawsuits in

state and federal courts across the country. See In re

Zantac (Ranitidine) Prods. Liab. Litig., 510 F. Supp.

3d 1175, 1190 (S.D. Fla. 2020). Among the productliability claims brought against petitioners was the

so-called innovator-liability claim brought by purchasers of generic ranitidine. Id. at 1191-1192. The

Judicial Panel on Multidistrict Litigation consolidated the federal suits in the Southern District of

Florida. Id. at 1191.

In the multidistrict litigation, the district court rejected the expansive theory of specific jurisdiction

adopted below. Although the plaintiffs argued that

petitioners “are subject to specific personal jurisdiction in all U.S. states and territories,” the court held

that only the courts in petitioners’ home States had

personal jurisdiction over the innovator-liability

claims brought by users of generic ranitidine. In re

Zantac, 510 F. Supp. 3d at 1200-1201. The district

court subsequently granted summary judgment to petitioners in nearly all of the remaining cases. In re

Zantac (Ranitidine) Prods. Liab. Litig., 644 F. Supp.

3d 1075, 1286 (S.D. Fla. 2022).

But thousands of plaintiffs remained in state

court, including in California. The California statecourt plaintiffs got another bite at the specific-jurisdiction apple and ultimately convinced the court below to deviate from the rule adopted by the federal

MDL court. The result is that petitioners are now

forced to defend against the plaintiffs’ novel theory of

liability in California even though the claims are completely unconnected to petitioners’ activities in Cali-

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fornia. That result is precisely what this Court’s limitations on specific jurisdiction are supposed to prevent.

B. Overly Expansive Approaches To Specific Jurisdiction Impose Greater Uncertainty On Businesses

This Court has long recognized that the rules for

specific jurisdiction are intended to create predictability for defendants, particularly corporate defendants,

so that they can “ ‘structure [their] primary conduct’ to

lessen or avoid exposure to a given State’s courts.”

Ford Motor, 592 U.S. at 360 (quoting World-Wide

Volkswagen, 444 U.S. at 297); see also J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873, 885 (2011)

(plurality op.) (explaining that “[j]urisdictional rules

should avoid the[] costs [of litigating disputed jurisdictional issues] whenever possible”).

That “[p]redictability is valuable to corporations

making business and investment decisions.” Hertz

Corp. v. Friend, 559 U.S. 77, 94 (2010). For example,

“[i]f a business entity chooses to enter a state on a

minimal level, it knows that under the relationship

standard, its potential for suit will be limited to suits

concerning the activities that it initiates in the state.”

Carol Rice Andrews, The Personal Jurisdiction Problem Overlooked in the National Debate About “Class

Action Fairness,” 58 S.M.U. L. Rev. 1313, 1346 (2005).

The decision below eviscerates predictability for

corporate defendants. Under its approach, a business

may be subject to suit anywhere in the country for

claims based on the purchase and use of its competitors’ products – sales and uses that are entirely outside of petitioners’ control. A brand-name manufacturer would be obligated to defend itself in perpetuity

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in the forum State for purchases of its competitors’

products, even if it has long left the State or stopped

selling the brand-name product there. Accordingly,

there is nothing petitioners or other brand-name manufacturers can do to “lessen or avoid” exposure to litigation in California, or in any other State. Ford Motor, 592 U.S. at 360.

C. Overly Expansive Approaches To Specific Jurisdiction Intrude On Other

States’ Sovereignty

This Court’s limits on specific jurisdiction “ensure

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.” WorldWide Volkswagen, 444 U.S. at 292.

But that is exactly what States would be able to

do under the approach to specific jurisdiction employed below. That approach permits a State to adjudicate claims by plaintiffs that lack any real connection to the defendant’s in-state activities. In doing so,

such a State intrudes on the sovereignty of States that

do have a substantial connection to the claim, such as

the States where the brand-name manufacturer is at

home or designed the allegedly inadequate warning

label.

There are no offsetting benefits to permitting this

serious erosion of federalism. States have no legitimate interest in asserting specific jurisdiction so expansively and inserting themselves into disputes that

are much more closely connected to other States. And

a State’s ability to adjudicate claims that are actually

based on a defendant’s in-State activities fully vindicates that State’s interest in regulating conduct

within its borders. See, e.g., Walden, 571 U.S. at 284.

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The decision below, if uncorrected, would have

far-reaching effects and impose serious, unwarranted

costs on the courts, businesses, and consumers. The

Court should grant the petition.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

JENNIFER B. DICKEY

ANDREW R. VARCOE

KEVIN R. PALMER

U.S. Chamber

Litigation Center

1615 H Street, NW

Washington, DC 20062

JULY 2024

NICOLE A. SAHARSKY

Counsel of Record

DANIEL E. JONES

WAJDI C. MALLAT

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

nsaharsky@mayerbrown.com