Amicus Curiae Brief — BASF Metals Limited, et al., Petitioners v. KPFF Investment, Inc., et al.

No. 23-232

IN THE

Supreme Court of the United States

BASF METALS LIMITED AND

ICBC STANDARD BANK PLC,

Petitioners,

v.

KPFF INVESTMENT, INC., ET AL.,

Respondents.

ON A PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF OF AMICUS CURIAE

NEW ENGLAND LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

Counsel for Amicus Curiae

Benjamin G. Robbins

Counsel of Record

Daniel B. Winslow, President

New England Legal Foundation

333 Washington Street, Suite 850

Boston, MA 02108

(617) 695-3660

brobbins@newenglandlegal.org

October 10, 2023

BATEMAN & SLADE, INC.

STONEHAM, MASSACHUSETTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iv

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT..................................... 2

ARGUMENT ............................................................... 6

I.

THIS COURT SHOULD GRANT

CERTIORARI AND DECIDE THAT

THE SECOND CIRCUIT’S TEST FOR

“CONSPIRACY

JURSIDICTION”

VIOLATES THE DUE PROCESS

CLAUSE. .......................................................... 6

A.

The Lower Court’s Test Subjects

A Nonresident Defendant To

Specific Personal Jurisdiction

Based On Someone Else’s Forum

Contacts, But Without Even

Requiring The Plaintiff To Show

That The Defendant Purposefully

Availed Itself Of The Forum

Through That Third Party, By

Directing Or Controlling Their

Forum Conduct. ..................................... 6

B.

The

Second

Circuit

Has

Essentially Conceded That Its

Test Violates Due Process But

But That It Must Nonetheless

Uphold Its Own Precedent,

Unless This Court Instructs It To

Do Otherwise. ........................................ 9

i.

The

court

has

acknowledged that its test

is not limited

by

traditional

agency

principles. .................................. 10

ii.

The court has apparently

embraced the body of legal

scholarship

rejecting

“conspiracy

jurisdiction”

because it abandons the

purposeful

availment

requirement, by conflating

the separate issues of

vicarious

liability

and

personal jurisdiction. ................ 11

iii.

The

court’s

opinion

indicates an awareness

that its test fails to require

the nonresident defendant

to establish its own caserelated contacts with the

forum. ........................................ 15

ii

II.

A

SEPARATE

“CONSPIRACY

JURISDICTION” TEST IS ENTIRELY

UNNECESSARY

BECAUSE

THE

INTERNATIONAL

SHOE

PURPOSEFUL AVAILMENT TEST IS

PERFECTLY

CAPABLE

OF

DETERMINING, IN EACH CASE,

WHETHER

PERSONAL

JURISDICTION CAN LIE AGAINST A

NONRESIDENT

DEFENDANT

BASED ON A THIRD PARTY’S

FORUM CONTACTS. .................................... 18

CONCLUSION .......................................................... 21

iii

TABLE OF AUTHORITIES

CASES

Brown v. Kerkhoff,

504 F. Supp. 2d 464 (S.D. Iowa 2007).................. 19

Burger King Corp. v. Rudzewicz,

471 U.S. 462 (1985) ....................................... passim

Daimler AG v. Bauman,

134 S. Ct. 746 (2014) .............................9, 15, 16, 19

Ford Motor Co. v. Montana Eighth Judicial Dist.

Court, 141 S. Ct. 1017 (2021) ..................... 7, 16, 18

Goodyear Dunlop Tires Operations, S.A. v. Brown,

564 U.S. 915 (2011) ................................................ 6

Green v. Santa Fe Indus., Inc.,

533 F.2d 1309 (2d Cir. 1976) ................................ 10

Hollingsworth v. Perry,

570 U.S. 693 (2013) ................................................ 9

International Shoe Co. v. Washington,

326 U.S. 310 (1945) ....................................... passim

Rush v. Savchuk,

444 U.S. 320 (1980) .............................................. 15

United States v. Capo, 791 F.2d 1054 (2d Cir. 1986),

rev’d on reh’g on other grounds,

817 F.2d 947 (2d Cir. 1987) .................................. 14

Walden v. Fiore,

571 U.S. 277 (2014) .................................... 8, 15, 16

iv

World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286 (1980) .............................................. 13

Youming Jin v. Ministry of State Sec.,

335 F. Supp. 2d 72 (D.D.C. 2004) ........................ 20

CONSTITUTIONAL AND OTHER AUTHORITIES

U.S. Const. amend. V ........................................ passim

Fed. R. App. P. 35..................................................... 10

15A C.J.S. Conspiracy § 1 (2023)............................. 14

15A C.J.S. Conspiracy § 4 (2023)............................. 14

15A C.J.S. Conspiracy § 18 (2022)..................... 12, 13

1 Restatement (Third) of Agency § 1.01, Comment f

(2005) ...................................................................... 9

Ann Althouse, The Use of Conspiracy Theory to

Establish In Personam Jurisdiction: A Due

Process Analysis,

52 Fordham L. Rev. 234 (1983) ............................ 12

Stuart M. Riback, Note, The Long Arm And Multiple

Defendants: The Conspiracy Theory Of In

Personam Jurisdiction,

84 Colum. L. Rev. 506 (1984) ......................... 12, 13

v

INTEREST OF AMICUS CURIAE

Amicus

curiae

New

England

Legal

Foundation (NELF) is a nonprofit, public interest

law firm, incorporated in Massachusetts in 1977 and

headquartered in Boston.1 NELF’s membership

consists of corporations, law firms, individuals, and

others who believe in its mission of promoting

inclusive economic growth in New England,

protecting the free enterprise system, and defending

economic rights. NELF’s members and supporters

include a cross-section of large and small businesses

and other organizations from all parts of the

Commonwealth, New England, and the United

States.

NELF is committed to upholding the liberty

interest of the nonresident business defendant in not

being subject to the binding judgments of a forum

with which it has not established a meaningful

relationship of its own. In this case, NELF opposes a

theory of so-called “conspiracy jurisdiction” because

it contravenes that liberty interest, by subjecting a

foreign defendant to personal jurisdiction based on

someone else’s forum contacts, but without even

requiring the plaintiff to show that the defendant

purposefully availed itself of the forum through that

third party.

1 Pursuant to Supreme Court Rule 37.6, NELF states that no

counsel for a party authored NELF’s amicus brief, in whole or

in part, and that no person or entity, other than amicus, made

a monetary contribution to the preparation or submission of the

brief.

For these and other reasons discussed below,

NELF believes that its brief will assist the Court in

deciding whether to grant certiorari in this case, to

decide whether the Second Circuit’s test for

establishing “conspiracy jurisdiction” over a foreign

defendant violates the Due Process Clause of the

Fifth Amendment.

SUMMARY OF ARGUMENT

The Court should grant certiorari and decide

that the Second Circuit’s test for “civil conspiracy

jurisdiction” violates due process. That test imposes

specific personal jurisdiction on a nonresident

defendant that has no or insufficient case-related

contacts of its own in the forum, by automatically

attributing to the defendant an alleged coconspirator’s forum acts undertaken to advance the

alleged conspiracy. The test offends due process

because it takes the extraordinary step of imputing a

third party’s forum contacts to the defendant, but

without even requiring the plaintiff to show that the

defendant purposefully availed itself of the forum

through that third party, by directing or controlling

its forum conduct. The test wrongfully imposes

personal jurisdiction based solely on the parties’

alleged conspiratorial relationship.

The Second Circuit bases its test on the

mistaken assumption that the expansive and

plaintiff-centered standard of vicarious liability

among co-conspirators can establish “vicarious”

personal jurisdiction among them too. However, this

Court recognized, in International Shoe Co. v.

Washington, 326 U.S. 310 (1945), that due process

2

draws a bright line between imputing liability and

imputing jurisdictional contacts among associated

parties. Accordingly, due process prohibits a court

from attributing a third party’s forum contacts to a

nonresident defendant, unless the defendant was, at

least, a primary participant in the enterprise and

acted purposefully in directing the third party’s

forum activities.

This case arrives in an unusual posture

because the Second Circuit has all but asked this

Court to take the case and strike down its test under

the Due Process Clause. In the opinion below, the

court has discussed at length its test’s constitutional

failings. However, the court has stated that its

hands are tied by its own entrenched precedent,

unless this Court decides otherwise.

In particular, the Second Circuit has

essentially conceded that its test abandons the core

purposeful availment requirement, because the test

is not limited by traditional agency principles.

Therefore, the test does not require the foreign

defendant to direct, control, or even supervise an

alleged co-conspirator’s forum conduct.

The court has also discussed, in detail,

prominent scholarly criticism of “conspiracy

jurisdiction” for its misapplication of the plaintiffcentered standard of vicarious liability to the

defendant-centered

standard

for

establishing

personal jurisdiction under the Due Process Clause.

In so doing, the court appears to have endorsed this

body of legal criticism.

3

After all, the purpose of civil conspiracy law is

to protect the plaintiff’s interests, by attributing

freely the acts of one co-conspiring “agent” to

another, to increase the number of implicated

parties and the recoverable damages for the plaintiff.

This expansive standard of vicarious conspiratorial

liability en masse is diametrically opposed to the

individualized due process inquiry, which carefully

determines whether each foreign defendant has

purposefully established minimum contacts with the

forum.

The Second Circuit’s detailed discussion of the

legal criticism also indicates an awareness that its

test fails the due process requirement that the

foreign defendant must purposefully establish its

own contacts with the forum to be amenable to suit

there. Ordinarily, this requirement is satisfied only

if the defendant has created those forum contacts by

itself, and not by its association with a third party

that happens to have forum contacts of its own. This

direct purposeful availment requirement protects

the defendant’s liberty interest in not being subject

to the binding judgments of a forum with which the

defendant has not created a meaningful relationship

of its own.

This Court has recognized a limited exception

when the nonresident defendant has purposefully

reached out to the forum through a third party, by

directing or controlling that third party’s forum

activities.

However, the Second Circuit has

essentially conceded that its test far exceeds this

narrow exception because it does not require the

defendant to direct, control, or even supervise the

4

alleged co-conspirator’s forum conduct. Absent proof

that the defendant purposefully availed itself of the

forum through the alleged co-conspirator, due

process should require that third party’s

jurisdictional contacts to remain its own.

The Second Circuit’s test is not only

unconstitutional. It is also entirely unnecessary.

The International Shoe purposeful availment test is

perfectly capable of determining whether or not

personal jurisdiction can lie against a nonresident

defendant based on its relationship with a third

party. That test remains essentially the same in

each case, regardless of the circumstances in which

it is applied. As applied here, the nonresident

defendant must purposefully avail itself of the forum

through a third party, by directing or controlling

their forum activities.

Nor would it make sense to “cure” the Second

Circuit’s test by adding a purposeful availment

requirement.

That would merely transform a

deficient theory into an application of the unitary

International Shoe test to the issue of attributing a

third party’s forum contacts to the foreign defendant.

A separate category of “civil conspiracy jurisdiction”

is therefore both unnecessary and confusing. Its

recognition would only distract courts from enforcing

the essential purposeful availment requirement

under the Due Process Clause.

5

ARGUMENT

I.

THIS

COURT

SHOULD

GRANT

CERTIORARI AND DECIDE THAT THE

SECOND CIRCUIT’S TEST FOR “CIVIL

CONSPIRACY

JURSIDICTION”

VIOLATES

THE

DUE

PROCESS

CLAUSE.

A.

The Lower Court’s Test Subjects A

Nonresident Defendant To Specific

Personal Jurisdiction Based On

Someone Else’s Forum Contacts,

But Without Even Requiring The

Plaintiff To Show That The

Defendant Purposefully Availed

Itself Of The Forum Through That

Third Party, By Directing Or

Controlling Their Forum Conduct.

This Court should grant certiorari and decide

that the Second Circuit’s test for “civil conspiracy

jurisdiction” violates the Due Process Clause. 2 That

test imposes specific (case-linked) personal

jurisdiction3 on a nonresident defendant that has no

U.S. Const. amend. V (“No person shall be . . . deprived of life,

liberty, or property, without due process of law.”).

2

See Goodyear Dunlop Tires Operations, S.A. v. Brown, 564

U.S. 915, 919 (2011) (“Specific jurisdiction . . . depends on an

affiliation between the forum and the underlying controversy,

principally, activity or an occurrence that takes place in the

forum . . . and is therefore subject to the [forum’s] . . .

regulation. . . . [S]pecific jurisdiction is confined to adjudication

of issues deriving from, or connected with, the very controversy

that establishes jurisdiction.”) (cleaned up).

3

6

or insufficient case-related contacts of its own in the

forum, by automatically attributing to the defendant

the acts that an alleged co-conspirator undertook in

the forum to advance the alleged conspiracy. See

Appendix (App.) 42-43.4

The court’s test violates due process because it

takes the extraordinary step of imputing someone

else’s forum contacts to the nonresident defendant,

but without even requiring the plaintiff to allege or

show that the defendant “t[ook] some act” through

that third party “by which it purposefully avail[ed]

itself of the privilege of conducting activities within

the forum State.” Ford Motor Co. v. Montana Eighth

Judicial Dist. Court, 141 S. Ct. 1017, 1024 (2021).

The test abandons this core purposeful availment

requirement, and with it due process’s “protect[ion

of] a [defendant’s] liberty interest in not being

subject to the binding judgments of a forum with

which [it] has established no meaningful contacts,

ties, or relations.” Burger King Corp. v. Rudzewicz,

471 U.S. 462, 471-72 (1985) (cleaned up).

Instead, the Second Circuit subjects a foreign

defendant to personal jurisdiction based solely on its

alleged conspiratorial relationship with a third party

that has forum contacts of its own. Due process

forbids the imposition of personal jurisdiction on

such a vague and conclusory basis. “To be sure, a

In particular, the Second Circuit’s test requires that “(1) a

conspiracy existed; (2) the defendant participated in the

conspiracy; and (3) a co-conspirator’s overt acts in furtherance

of the conspiracy had sufficient contacts with a state to subject

that co-conspirator to jurisdiction in that state.” App. 42-43

(cleaned up).

4

7

defendant’s contacts with the forum State may be

intertwined with his transactions or interactions

with . . . other parties.

But a defendant’s

relationship with a . . . third party, standing alone, is

an insufficient basis for jurisdiction.” Walden v.

Fiore, 571 U.S. 277, 286 (2014) (emphasis added).

The Second Circuit bases its theory of

“conspiracy

jurisdiction”

on

the

mistaken

assumption that the expansive and plaintiff-centered

standard of vicarious liability among co-conspirators

can establish “vicarious” personal jurisdiction among

them too. See App. 47. However, due process draws

a bright line between imputing liability and

imputing jurisdictional contacts among associated

parties:

[A]lthough the commission of some

single or occasional acts of the corporate

agent in a state sufficient to impose an

obligation or liability on the corporation

has not been thought to confer upon the

state authority to enforce it, . . . other

such acts, because of their nature and

quality and the circumstances of their

commission, may be deemed sufficient

to render the corporation liable to suit

[in the forum State].

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

318 (1945) (emphasis added).

In sharp contrast to the Second Circuit’s

overreaching test, due process prohibits a court from

attributing a third party’s jurisdictional contacts to a

8

nonresident defendant, unless the defendant was “at

least . . . a primary participant in the enterprise and

has acted purposefully in directing those activities.”

Burger King, 471 U.S. at 479 n.22 (cleaned up)

(emphasis added). See also Daimler AG v. Bauman,

571 U.S. 117, 135 n.13 (2014) (“Agency relationships

. . . may be relevant to the existence of specific

jurisdiction.

. . . [A] corporation can purposefully

avail itself of a forum by directing its agents or

distributors to take action there.”) (emphasis added

and supplied by Court).

In short, “the most basic features of an agency

relationship are missing here. . . . ‘An essential

element of agency is the principal’s right to control

the agent’s actions.’” Hollingsworth v. Perry, 570

U.S. 693, 713 (2013) (quoting 1 Restatement (Third)

of Agency § 1.01, Comment f (2005) (emphasis

added)).

B.

The Second Circuit Has Essentially

Conceded That Its Test Violates

Due Process But That It Must

Nonetheless

Uphold

Its

Own

Precedent, Unless This Court

Instructs It To Do Otherwise.

This case arrives in an unusual posture

because the Second Circuit has all but asked this

Court to take the case and strike down its test under

the Due Process Clause. See App. 46-49. In the

opinion below, the court has discussed in detail its

test’s constitutional failings. See id. However, the

court has stated that its hands are tied by its own

entrenched precedent, “unless and until it is

9

overruled by the [Second Circuit] en banc or by the

Supreme Court.” App. 49 (cleaned up).5

i. The court has acknowledged

that its test is not limited by

traditional agency principles.

In particular, the Second Circuit has conceded

that “there may be grounds for th[e petitioners’]

objections,” App. 46, that its test violates due

process. The court goes on to state, with noticeable

regret, that its test is not limited by traditional

agency principles. App. 47. Consequently, a foreign

defendant is subject to personal jurisdiction even if it

does not direct, control, or supervise an alleged coconspirator’s forum conduct:

[T]he argument that our exercise of

conspiracy jurisdiction should be limited

5 An overruling en banc would be extremely unlikely.

See Fed.

R. App. P. 35 (“An en banc hearing or rehearing is not favored

and ordinarily will not be ordered . . . .”). See also Green v.

Santa Fe Indus., Inc., 533 F.2d 1309, 1310 (2d Cir. 1976)

(denying rehearing en banc “not because we believe these cases

are insignificant, but because they are of such extraordinary

importance that we are confident the Supreme Court will accept

these matters under its certiorari jurisdiction[.] . . . Even under

the best of circumstances, an en banc proceeding is often an

unwieldly and cumbersome device generating little more than

delay, costs, and continued uncertainty that can ill be afforded

at a time of burgeoning calendars. A case in which Supreme

Court resolution is inevitable should not be permitted to tarry

in this Court for further intermediate action[.] . . . Moreover,

the applications for certiorari that we expect inexorably to

follow our action will not reach the Supreme Court devoid of

the views of the judges of this Court.”) (emphasis added).

10

by agency principles is no longer

available. . . . [W]e have squarely

rejected that limitation on conspiracy

jurisdiction. . . . [Accordingly,] our

caselaw does not require a relationship

of control, direction, or supervision to

establish conspiracy jurisdiction.

App. 47 (cleaned up). Put differently, the court has

essentially conceded that its test does not require the

defendant to purposefully avail itself of the forum

through the alleged co-conspirator.

ii. The

court

has

apparently

embraced the body of legal

scholarship

rejecting

“conspiracy

jurisdiction”

because

it

abandons

the

purposeful

availment

requirement, by conflating the

separate issues of vicarious

liability

and

personal

jurisdiction.

What’s more, the Second Circuit has

thoroughly “acknowledged the debate,” App. 49,

among legal scholars who oppose a theory of

“conspiracy jurisdiction,” essentially because it fails

to require the foreign defendant to purposefully avail

itself of the forum through a third party. See App.

47-49. As the court aptly restates the argument,

such a theory misapplies the elastic, plaintiffcentered standard of vicarious liability among coconspirators to the rigorous, defendant-centered

standard for establishing personal jurisdiction under

11

the Due Process Clause.6

Consistent with this body of legal criticism,

the Second Circuit has suggested that it erred when

it adopted a test that conflates the separate issues of

liability and personal jurisdiction among coconspirators. “In doing so, . . . we followed the

suggestion that, because ‘for most purposes the acts

of one conspirator within the scope of the conspiracy

are attributed to the others,’ there is no reason

‘personal jurisdiction should be an exception.’” App.

47 (quoting Stauffacher v. Bennett, 969 F.2d 455, 459

(7th Cir. 1992) (emphasis added)).

See App. 47-48 (crediting arguments of petitioners and

“[o]ther critics of conspiracy jurisdiction [who] have similarly

argued that the ‘purposes of the law of civil conspiracy and the

law of in personam jurisdiction’ are ‘opposed.’”) (quoting Stuart

M. Riback, Note, The Long Arm And Multiple Defendants: The

Conspiracy Theory Of In Personam Jurisdiction, 84 Colum. L.

Rev. 506, 530 (1984)); App. 48 (“‘A conspiracy claim serves

merely to expand liability for the underlying wrong to persons

who are not directly involved in the wrongful actions,’ . . . and is

‘a mechanism to aid the plaintiff[.]’”) (quoting, in sequence, 15A

C.J.S. Conspiracy § 18 (2022); and Riback, The Conspiracy

Theory, 84 Colum. L. Rev. at 530) (emphasis added)); App. 48

(“‘While a solicitude for the plaintiff’s interests is central to the

determination of conspiratorial liability, it is not so in the

determination of jurisdiction, in which the defendant is the

primary concern.’”) (quoting Riback, The Conspiracy Theory, 84

Colum. L. Rev. at 530); App. 48 (quoting Ann Althouse, The Use

of Conspiracy Theory to Establish In Personam Jurisdiction: A

Due Process Analysis, 52 Fordham L. Rev. 234, 241 (1983), for

“criticizing courts for ‘fail[ing] to differentiate between the

standards

governing

liability

and

those

governing

jurisdiction.’”).

6

12

Contrary to its own precedent, and consistent

with this legal criticism, the Second Circuit has

suggested that there is every reason to treat personal

jurisdiction differently from liability in a conspiracy

claim:

On the one hand, “[a] conspiracy claim

serves merely to expand liability for the

underlying wrong to persons who are

not directly involved in the wrongful

actions,” . . . and is “a mechanism to aid

the plaintiff[.]” . . . The due process

limitations on in personam jurisdiction,

on the other hand, are meant to “give[ ]

a degree of predictability to the legal

system that allows 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.”

App. 48 (quoting, in sequence, 15A C.J.S. Conspiracy

§ 18 (2022); Stuart M. Riback, Note, The Long Arm

And Multiple Defendants: The Conspiracy Theory Of

In Personam Jurisdiction, 84 Colum. L. Rev. 506,

530 (1984); and World-Wide Volkswagen Corp. v.

Woodson, 444 U.S. 286, 297 (1980) (emphasis

added)). See also App. 48 (“‘While a solicitude for the

plaintiff’s interests is central to the determination of

conspiratorial liability, it is not so in the

determination of jurisdiction, in which the defendant

is the primary concern.’”) (quoting Riback, The

Conspiracy Theory, 84 Colum. L. Rev. at 530).

13

After all, the purpose of civil conspiracy law is

to protect the plaintiff’s interests, by treating all coconspirators as if they were acting as a single entity.

That way, a court can attribute freely the acts of one

co-conspiring “agent” to another, to increase the

number of implicated parties and the recoverable

damages for the plaintiff. “[T]he purpose of a civil

conspiracy is to impute liability. A civil conspiracy is

said to exist for only two purposes: to implicate

others and to increase the measure of damages.”

15A C.J.S. Conspiracy § 1 (2023) (emphasis added).

Moreover, the requirements for imposing joint

and several liability on all named co-conspirators are

hardly demanding. See App. 46-48. Indeed, the

plaintiff need only show that two or more parties

agreed to violate the law, and that at least one party

committed acts to further the conspiracy. See 15A

C.J.S. Conspiracy § 4 (2023). In fact, “[a] person may

participate in a conspiracy without knowing the

identities of all of the other coconspirators[.]” United

States v. Capo, 791 F.2d 1054, 1066 (2d Cir. 1986)

(emphasis added), rev’d on reh’g on other grounds,

817 F.2d 947 (2d Cir. 1987).

Consequently, a

defendant is vicariously liable for a co-conspirator’s

acts in furtherance of the conspiracy, even if the

defendant did not know the identity of that coconspirator, let alone play any role in directing or

controlling the co-conspirator’s commission of those

acts.

As the lower court’s opinion suggests, this

plaintiff-centered standard of imposing vicarious

conspiratorial liability en masse is diametrically

opposed to the individualized due process inquiry,

14

which carefully determines whether each foreign

defendant has purposefully established minimum

contacts with the forum. “The requirements of

International Shoe, however, must be met as to each

defendant over whom a state [or federal] court

exercises jurisdiction.” Rush v. Savchuk, 444 U.S.

320, 332 (1980). See also App. 46-48. While a

nonresident defendant may be held liable for a coconspirator’s forum acts in furtherance of the

conspiracy, due process protects that defendant from

being sued in the forum for those acts, unless the

defendant has, at minimum, directed or controlled

the commission of those acts. See Daimler AG, 571

U.S. at 135 n.13; Burger King, 471 U.S. at 479 n.22;

International Shoe, 326 U.S. at 318.

iii. The court’s opinion indicates an

awareness that its test fails to

require

the

nonresident

defendant to establish its own

case-related contacts with the

forum.

The Second Circuit’s detailed discussion of

conspiracy jurisdiction’s legal critics also indicates

an awareness that its test abandons the due process

requirement that each foreign defendant must

purposefully establish its own case-related contacts

with the forum to be amenable to suit there. “[T]he

relationship [between the defendant and the forum]

must arise out of contacts that the defendant himself

creates with the forum.” Walden, 571 U.S. at 284

(cleaned up) (emphasis supplied by Court).

15

Ordinarily,

the

purposeful

availment

requirement is satisfied only if the defendant has

created those forum contacts by itself, and not by its

association with a third party that happens to have

forum contacts of its own. “[O]ur ‘minimum contacts’

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.

Preservation of this individualized and direct

purposeful availment requirement is essential to

“protect[] a [defendant’s] liberty interest in not being

subject to the binding judgments of a forum with

which [it] has established no meaningful contacts,

ties, or relations.” Burger King, 471 U.S. at 471-72

(cleaned up). Only by purposefully establishing its

own substantial ties with the forum can the

defendant reasonably anticipate and assume the

reciprocal obligation of answering to claims, in the

forum, that arise out of or relate to those ties. See

Ford Motor Co., 141 S. Ct. at 1024-25 (discussing

same).

This Court has recognized a limited exception

only when the nonresident defendant has

purposefully reached out to the forum through a

third party, by directing or controlling that third

party’s forum activities. See Burger King, 471 U.S.

at 479 n.22 (“[W]hen commercial activities are

carried on in behalf of an out-of-state party[,] those

activities may sometimes be ascribed to the party,

. . . at least where he is a primary participant in the

enterprise and has acted purposefully in directing

those activities . . . .”). See also Daimler, 571 U.S. at

135 n.13 (“Agency relationships, we have recognized,

16

may be relevant to the existence of specific

jurisdiction. . . . [A] corporation can purposefully

avail itself of a forum by directing its agents or

distributors to take action there.”)

(emphasis

supplied by Court).

Under these narrow

circumstances, the defendant may be deemed to

assume the third party’s jurisdictional contacts, as

would a principal for the directed conduct of its

agent.

However, the Second Circuit has essentially

conceded that its test far exceeds this narrow

exception because it is not limited by traditional

agency principles and, therefore, does not require

the defendant to direct, control, or supervise the coconspirator’s forum conduct. App. 47. Absent proof

that the defendant purposefully availed itself of the

forum through that co-conspirator, due process

should require the co-conspirator’s jurisdictional

contacts to remain its own. Therefore, the Second

Circuit’s conspiracy jurisdiction test violates due

process.

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II.

A

SEPARATE

“CONSPIRACY

JURISDICTION” TEST IS ENTIRELY

UNNECESSARY

BECAUSE

THE

INTERNATIONAL SHOE PURPOSEFUL

AVAILMENT TEST IS PERFECTLY

CAPABLE OF DETERMINING, IN EACH

CASE,

WHETHER

PERSONAL

JURISDICTION CAN LIE AGAINST A

NONRESIDENT DEFENDANT BASED

ON

A

THIRD

PARTY’S

FORUM

CONTACTS.

The Second Circuit’s test is not only

unconstitutional. It is also entirely unnecessary.

The enduring International Shoe purposeful

availment test is perfectly capable of determining

whether or not personal jurisdiction can lie against a

nonresident defendant based on its relationship with

a third party, conspiratorial or otherwise. That test

remains essentially the same in each case,

regardless of its particular circumstances. In every

case, the nonresident defendant “must take some act

by which it purposefully avails itself of the privilege

of conducting activities within the forum State.”

Ford Motor Co., 141 S. Ct. at 1024 (cleaned up).

As applied here, that test would require the

defendant to purposefully avail itself of the forum by

deliberately directing or controlling a third party’s

conduct there. Indeed, when this Court has

discussed the possibility of attributing the

jurisdictional contacts of a third party to the

nonresident defendant, the Court has given every

indication that such a determination would fit

squarely within the traditional analytical framework

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of International Shoe and its progeny. See Daimler

AG, 571 U.S. at 135 n.13 (quoting and citing

International Shoe); Burger King, 471 U.S. at 479

n.22 (quoting International Shoe).

For the same reason, it would make no sense

to “cure” the Second Circuit’s test by adding a

purposeful availment requirement. Such a move

would merely transform that deficient test into an

application of the unitary International Shoe test to

the issue of attributing a third party’s forum

contacts to the foreign defendant. “[A]doption of the

[purposeful availment] test would . . . cause the

traditional minimum contacts approach to swallow

the conspiracy theory in whole. The reason why, of

course, is that requiring a showing of purposeful

availment remedies the constitutional flaw.” Brown

v. Kerkhoff, 504 F. Supp. 2d 464, 518 n.36 (S.D. Iowa

2007) (emphasis added).

In short, a separate theory of “civil conspiracy

jurisdiction” is both unnecessary and confusing. Its

recognition would only distract courts from enforcing

the essential purposeful availment requirement

under the Due Process Clause:

Admittedly, once the more rigorous

purposeful availment requirement is

applied to the three traditional

elements of conspiracy jurisdiction[, i.e.,

the existence of a conspiracy; the

defendant’s

participation

in

the

conspiracy; and a co-conspirator’s forum

acts in furtherance of the conspiracy

that satisfy International Shoe,] it

19

becomes quite difficult to articulate the

purpose of conspiracy jurisdiction--or

indeed, the point of continuing to

complicate cases with the additional

analytical framework of civil conspiracy.

Youming Jin v. Ministry of State Sec., 335 F. Supp.

2d 72, 80 n.5 (D.D.C. 2004) (emphasis added).

Whenever a plaintiff asks a court to assert

personal jurisdiction over a nonresident defendant

based on someone else’s forum contacts, the plaintiff

should always have to show, under International

Shoe and its progeny, that the defendant

purposefully availed itself of the forum, by directing

or controlling the third party’s forum conduct. The

Second

Circuit’s

test

is

therefore

both

unconstitutional and unnecessary.

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CONCLUSION

For the reasons stated above, NELF

respectfully requests that this Court grant the

Petition for Certiorari.

Respectfully submitted,

NEW ENGLAND LEGAL FOUNDATION

By its attorneys,

Benjamin G. Robbins

Counsel of Record

Daniel B. Winslow, President

New England Legal Foundation

333 Washington Street

Suite 850

Boston, MA 02108

(617) 695-3660

brobbins@newenglandlegal.org

October 10, 2023

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