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,

v.

Petitioners,

KPFF INVESTMENT, INC, et al.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals for the

Second Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF OF THE INTERNATIONAL

ASSOCIATION OF DEFENSE COUNSEL AS

AMICUS CURIAE IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI

Respectfully submitted,

MARK R. BEEBE

PRESIDENT OF THE

INTERNATIONAL

ASSOCIATION OF

DEFENSE COUNSEL

ADAMS AND REESE

701 Poydras St.

Suite 4500

New Orleans, LA 70139

(504) 581-3234

mark.beebe@arlaw.com

MICHAEL W. EADY

THOMPSON, COE, COUSINS,

IRONS, LLP

2801 Via Fortuna, Suite 300

Austin, Texas 78746

(512) 703- 5084

meady@thompsoncoe.com

Counsel for Amicus Curiae

October 13, 2023

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

Pursuant to Rule 37.2(b) of the Rules of the

Supreme Court of the United States, the International

Association of Defense Counsel (“IADC”) hereby

respectfully moves for leave to file the accompanying

brief as amicus curiae supporting the Petition for Writ

of Certiorari in this case. Timely notice under Rule

37.2 of the intent to file this brief was given to

Petitioners, but not Respondents. While the IADC

gave notice of its intent to Respondents, KPFF

Investments, Inc., et al., it did so within the 10-day

period. The IADC asked if Respondents would waive

the notice period and has yet to receive a response.

Given the recent extension granted to Respondents to

file their brief in opposition, the IADC does not believe

the lack of more notice should be a concern.

The IADC believes that the attached brief sheds

additional light on the issues presented in the Petition

for Writ of Certiorari, but from a broader group that is

affected by the use of conspiracy jurisdiction to bring

foreign parties before U.S. Courts. The IADC is an

invitation-only,

peer-reviewed

membership

organization of about 2,500 in-house and outside

defense attorneys and insurance executives. They are

tasked with advising their clients regarding personal

jurisdiction issues—when they can expect to be hailed

into a U.S. Court, and when not.

In view of its interest in and unique perspective

on these issues, the IADC respectfully requests that

the Court grant it leave to participate as amicus curiae

by filing the attached brief in support of the Petition

for Writ of Certiorari.

MICHAEL W. EADY

THOMPSON, COE, COUSINS,

& IRONS LLP

2801 Via Fortuna, Suite 300

Austin, Texas 78746

(512) 703-5084

meady@thompsoncoe.com

Counsel for Amicus Curiae

October 13, 2023

No. 23-232

IN THE

SUPREME COURT OF THE UNITED STATES

BASF METALS LIMITED AND ICBC STANDARD BANK PLC,

v.

Petitioners,

KPFF INVESTMENT, INC, et al.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals for the

Second Circuit

BRIEF OF THE INTERNATIONAL

ASSOCIATION OF DEFENSE COUNSEL AS

AMICUS CURIAE IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI

MICHAEL W. EADY

THOMPSON, COE, COUSINS, &

IRONS LLP

2801 Via Fortuna, Suite 300

Austin, Texas 78746

(512) 703-5084

meady@thompsoncoe.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... iii

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

INTRODUCTION ........................................................ 2

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ................................................................ 5

I.

CONSPIRACY JURISDICTION IS

INCONSISTENT WITH LONGSTANDING SUPREME COURT

PRECEDENT .................................................... 5

A.

THE PROPER EXERCISE OF

PERSONAL JUSDICTION IS

BASED ON CONTACTS THE

DEFENDANT HIMSELF

CREATES WITH THE FORUM

STATE .................................................... 5

B.

IN RE PLATIUM AND

PALLADIUM LITIGATION ................ 11

C.

THE HISTORY AND SPLIT OF

AUTHORITIES ON WHETHER

CONSPIRACY JURSIDICTION

IS A PROPER FORM OF

SPECIFIC JURISDICTION ................ 13

ii

II.

THE FORGOTTEN ROLE OF

INTERNATIONAL COMITY ......................... 19

CONCLUSION........................................................... 23

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Asahi Metal Indus. Co. ltd. v. Superior Ct. of

California, Solano Cnty.,

480 U.S. 102, 107 S. Ct. 1026,

94 L.Ed.2d 92 (1987) .............................................. 2

Bankers Life & Cas. Co. v. Holland,

346 U.S. 379, 74 S. Ct. 145,

98 L. Ed. 106 (1953).............................................. 17

BNSF Ry. Co. v. Tyrrell,

581 U.S. 402, 137 S. Ct. 1549,

198 L. Ed. 2d 36 (2017) ..................................... 7, 8

Bristol-Myers Squibb Co. v. Superior Ct. of

California, San Francisco Cnty.,

582 U.S. 255, 137 S. Ct. 1773,

198 L. Ed. 2d 395 (2017) ........................................ 9

British Airways Bd. v. Laker Airways Ltd.,

[1984] .................................................................... 21

Burger King Corp. v. Rudzewicz,

471 U.S. 462, 105 S. Ct. 2174,

85 L. Ed. 2d 528 (1985) ....................................... 10

Cannon Mfg. Co. v. Cudahy Packing Co.,

267 U.S. 333, 45 S. Ct. 250,

69 L. Ed. 634 (1925).............................................. 11

iv

Charles Schwab Corp. v. Bank of Am. Corp.

(Schwab I),

883 F.3d 68 (2d Cir. 2018) .................................... 12

Chirila v. Conforte,

47 F. App'x 838 (9th Cir. 2002) ............................ 16

Daimler AG v. Bauman,

571 U.S. 117, 134 S. Ct. 746,

187 L. Ed. 2d 624 (2014) ...................... 5, 6, 7, 8, 11

EcoDisc Tech. AG v. DVD Format/

Logo Licensing Corp.,

711 F. Supp. 2d 1074 (C.D. Cal. 2010)................. 16

Ford Motor Co. v. Montana Eighth Judicial

Dist. Court,

592 U. S. ––––, ––––, 141 S.Ct. 1017,

209 L.Ed.2d 225 (2021) .......................................... 6

Giusti v. Pyrotechnic Industries,

156 F.2d 351 (9th Cir.), cert. denied,

329 U.S. 787 (1946) ........................................ 13, 14

Goodyear Dunlop Tires Operations, S.A.

v. Brown,

564 U.S. 915, 131 S. Ct. 2846,

180 L. Ed. 2d 796 (2011) ................................ 7, 8, 9

Helicopteros Nacionales de Colombia, S.A.

v. Hall,

466 U.S. 408, 104 S. Ct. 1868,

80 L. Ed. 2d 404 (1984) ........................................ 10

v

Hilton v. Guyot,

159 U.S. 113, 16 S. Ct. 139,

40 L. Ed. 95 (1895) ............................................... 20

Ins. Corp. of Ireland v. Compagnie des

Bauxites de Guinee,

456 U.S. 694, 102 S. Ct. 2099,

72 L.Ed.2d 492 (1982) ............................................ 9

Int'l Shoe Co. v. State of Wash., Off. Of

Unemployment Comp. & Placement,

326 U.S. 310, 66 S. Ct. 154,

90 L. Ed. 95 (1945) ....................................... 5, 6, 10

JP Morgan Chase Bank v. Altos Hornos

de Mex., S.A. de C.V.,

412 F.3d 418 (2d Cir. 2005) .................................. 21

Keeton v. Hustler Magazine, Inc.,

465 U.S. 770, 104 S. Ct. 1473,

79 L.Ed.2d 790 (1984) ..................................... 9, 11

LaSala v. Marfin Popular Bank Pub. Co.,

410 F. App'x 474 (3d Cir. 2011)............................ 16

Licci ex rel. Licci v. Lebanese Canadian

Bank, SAL,

673 F.3d 50 (2d Cir. 2012) .................................... 10

Mallory v Norfolk Southern Railway Co.,

600 U.S. 122, 143 S.Ct. 2028,

216 L.Ed.2d 815 (2023) ...................................... 3, 8

vi

Maxwell Comm'n Corp. v. Societe Generale

(In re Maxwell Comm'n Corp.),

93 F.3d 1036 (2d Cir. 1996) .................................. 21

National Equipment Rental, Ltd. v. Szukhent,

375 U.S. 311, 84 S.Ct. 411,

11 L.Ed.2d 354 (1964) ............................................ 9

In re New Motor Vehicles Canadian Exp.,

307 F. Supp. 2d 145 (D. Me. 2004) ....................... 17

In re New Motor Vehicles Canadian Exp.

Antitrust Litig.,

No. MDL 1532, 2004 WL 1571617

(D. Me. Apr. 20, 2004) .......................................... 17

Pennoyer v. Neff,

95 U.S.714, 24 L. Ed. 565 (1877) ........................... 5

Petrowski v. Hawkeye-Security Co.,

350 U.S. 495, 76 S. Ct. 490,

100 L.Ed. 639 (1956)............................................... 9

In re Platinum and Palladium Antitrust

Litigation,

61 F.4th 242 (2023)..................................... 3, 12, 19

Ploense v. Electrolux Home Products, Inc.,

377 Ill. App. 3d 1091, 317 Ill.Dec. 773,

882 N.E.2d 653 (2007) .......................................... 16

RMS Titanic, Inc. v. Kingsmen Creatives, Ltd.,

579 Fed. Appx. 779 (11th Cir. 2014) .................... 13

vii

Rush v. Savchuk,

444 U.S. 320, 100 S. Ct. 571,

62 L. Ed. 2d 516 (1980) .................................. 10, 11

Schwab Short-Term Bond Mkt. Fund v.

Lloyds Banking Grp. PLC (Schwab II),

22 F.4th 103 (2d Cir. 2021),

cert denied, 142 S. Ct. 2852 (2022) ............ 2, 12, 13

Shaffer v. Heitner,

433 U.S. 186, 97 S. Ct. 2569,

53 L. Ed. 2d 683 (1977) .......................................... 6

Smith v. Jefferson Cnty. Bd. of Educ.,

378 F. App'x 582 (7th Cir. 2010) .......................... 16

Socialist Workers Party v. Attorney General,

375 F. Supp. 318 (S.D.N.Y. 1974) ........................ 15

Societe Nationale Industrielle Aerospatiale v.

U.S. Dist. Ct. for S. Dist. of Iowa,

482 U.S. 522, 107 S. Ct. 2542,

96 L. Ed. 2d 461 (1987) ........................................ 20

Somportex, Ltd. v. Philadelphia Chewing

Gum Corp.,

453 F.2d 435 (3d Cir. 1971) .................................. 20

Sotloff v. Qatar Charity,

No. 22-CV-80726, ___F. Supp. 3d ___,

2023 WL 3721683 (S.D. Fla. 2023) ...................... 13

Turner v. Baxley,

354 F. Supp. 963 (D. Vt. 1972) ............................. 15

viii

United States v. First National City Bank,

379 U.S. 378, 85 S. Ct. 528,

13 L.Ed.2d 365 (1965)

(Harlan, J., dissenting)........................................... 3

Walden v. Fiore,

571 U.S. 277, 134 S. Ct. 1115,

188 L.Ed.2d 12 (2014) .................................... 10, 19

Waldman v. Palestine Liberation Org.,

835 F.3d 317 (2d Cir. 2016) .................................. 10

West Virginia v. Morton Int'l, Inc.,

264 F. Supp. 689 (D. Minn. 1967) ........................ 18

World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286 100 S. Ct. 559,

62 L. Ed. 2d 490 (1980) ...................................... 5, 6

RULES

Supreme Court Rule 37.2 ............................................ 1

Supreme Court Rule 37.6 ............................................ 1

STATUTES

Federal Employers' Liability Act ................................ 7

OTHER AUTHORITIES

Fifth Amendment......................................................... 5

ix

Ann Althouse, The Use of Conspiracy Theory

to Establish in Personam Jurisdiction:

A Due Process Analysis,

52 Fordham L. Rev. 234 (1983) ............................ 17

California Civil Code ................................................. 14

Crossroads: An Intersection Between Public

and International Law,

76 Am. J. Int'l L. 280, 281–285 (1982) ................. 20

Harold Maier, Interest Balancing and

Extraterritorial Jurisdiction,

31 Am. J. Comp. L. 579, 589 (1983) ..................... 20

Restatement (Third) of Foreign Relations Law

§ 403(2) (1987) ...................................................... 22

1

INTEREST OF AMICUS CURIAE1

The International Association of Defense

Counsel (“IADC”) is an invitation-only, peer-reviewed

membership organization of about 2,500 in-house and

outside defense attorneys and insurance executives.

IADC is dedicated to the just and efficient

administration of civil justice and improvement of the

civil justice system. IADC supports a justice system in

which plaintiffs are fairly compensated for genuine

injuries, responsible defendants are held liable for

appropriate damages, and non-responsible defendants

are exonerated without unreasonable cost.

IADC participate as amici curiae in Supreme

Court cases raising issues of exceptional importance to

their membership, such as this case, which threatens

to expand personal jurisdiction over non-resident

defendants beyond the constitutional limits and longstanding precedent. The theory of conspiracy

jurisdiction currently proposed would permit personal

jurisdiction over a non-resident defendant even where

there is no agency “relationship of control, direction, or

supervision” between the defendant and the alleged co1 While Petitioners’ counsel received timely notice in accordance

with Supreme Court Rule 37.2, Respondent’s counsel did not. The

IADC asked if Respondents will waive notice and Respondents

have consented to do so. In accordance with Supreme Court Rule

37.6, the IADC certifies that no counsel for a party authored this

brief in whole or in part, and that no party or counsel other than

the amici curiae, their members, and their counsel, made a

monetary contribution intended to fund preparation or

submission of this brief.

2

conspirator.” Schwab Short-Term Bond Mkt. Fund v.

Lloyds Banking Grp. PLC (Schwab II), 22 F.4th 103,

124-25 (2d Cir. 2021), cert denied, 142 S. Ct. 2852

(2022). Indeed, the question before the Court in this

case—whether the exercise of personal jurisdiction

over a defendant with no forum contacts, so long as

plaintiffs allege that the defendant participated in the

conspiracy and an alleged co-conspirator is subject to

personal jurisdiction in the forum—is a subject of

fundamental significance to amici. Whether that is a

permissible form of personal jurisdiction directly

impacts both domestic and foreign business

organizations represented by IADC members.

IADC therefore has a vital interest in the issue

presented in this case, and their views can assist the

Court in its decision.

IADC fully supports the Petition for Writ of

Certiorari.

INTRODUCTION

This case is about allowing civil litigants access

to use U.S. Courts to adjudicate what is essentially a

foreign controversy involving foreign defendants. In

Asahi Meal, this Court held that in determining the

reasonableness of the exercise of jurisdiction, courts

must weigh “‘the interstate judicial system’s interest

in obtaining the most efficient resolution of

controversies; and ‘[g]reat care and reserve should be

exercised when extending our notions of personal

jurisdiction into the international field.’” Asahi Metal

3

Indus. Co. ltd. v. Superior Ct. of California, Solano

Cnty., 480 U.S. 102, 107 S. Ct. 1026, 1034, 94 L.Ed.2d

92 (1987) (quoting United States v. First National City

Bank, 379 U.S. 378, 404, 85 S. Ct. 528, 542, 13 L.Ed.2d

365 (1965) (Harlan, J., dissenting)). Somehow that

principle has been lost in the rush to embrace

conspiracy jurisdiction, a form of personal jurisdiction

inconsistent with defendant directed forum contacts

that have always been the bedrock of specific

jurisdiction. The Second Circuit was too quick to reject

BASF and ICBC’s2 call for court consideration of the

procedural and substantive policies of other nations

whose interests are affected by the exercise of

conspiracy jurisdiction, saying “BASF and ICBC

overestimate the weight of ‘international rapport’ in

this context.” In re Platinum and Palladium Antitrust

Litigation, 61 F.4th 242, 274 (2023). IADC disagrees.

Just like the split in authority that led to this

Court’s decision in Mallory v Norfolk Southern

Railway Co., 600 U.S. 122, 143 S.Ct. 2028, 216 L.Ed.2d

815 (2023), this case presents another split, equally

troubling, and unlikely to go unimpeded, absent

intervention.

SUMMARY OF ARGUMENT

This is a London-based dispute, involving

London-based parties, and activities in London. Yet

the case was filed in New York.

BASF Metals Limited and ICBC Standard Bank PLC are

referred to herein as BASF and ICBC.

2

4

Neither BASF nor ICBC consented, express or

implied, to be sued in New York. There was admittedly

no basis for the proper exercise of general jurisdiction.

There was also no basis for “tag” jurisdiction. The fact

another entity has been tagged is not enough to allow

the exercise of specific jurisdiction.

Federal due process has never squared well

with conspiracy jurisdiction. Heretofore recognized

forms of personal jurisdiction have always allowed

alien and non-resident defendants to structure their

conduct to avoid being hailed into more friendly United

States Courts, at least until now. The focus has always

been on the contacts the defendant himself creates, not

those of an alleged co-conspirator.

Conspiracy jurisdiction violates long-standing

case precedent and creates uncertainty for foreign

defendants. It is a form of personal jurisdiction

unfamiliar to European entities. The allegations to

support such jurisdiction are relatively easy to make.

Indeed, the Second Circuit panel said so, remarking

that this “is not a difficult requirement to meet.” This

leads to foreign corporations being subjected to

personal jurisdiction despite a lack of control over the

alleged co-conspirator, sometimes unknown to the

defendant. This cannot possibly be the result intended,

nor constitutionally permissible. The split of

authorities over the propriety of conspiracy

jurisdiction is not in dispute. A different rule of law

should not depend upon mere geography.

Clarification is in order.

5

ARGUMENT

I.

CONSPIRACY

JURISDICTION

IS

INCONSISTENT WITH LONG-STANDING

SUPREME COURT PRECEDENT

A.

THE

PROPER

EXERCISE

OF

PERSONAL JUSDICTION IS BASED

ON CONTACTS THE DEFENDANT

HIMSELF CREATES WITH THE

FORUM STATE

Before any court can render judgment over a

non-resident defendant, the court must have personal

jurisdiction over that person or entity, consistent with

due process. The Fifth Amendment limits a federal

court's power to exercise jurisdiction over a defendant.

Historically, personal jurisdiction over persons

reached no farther than the geographic bounds of the

forum. See Pennoyer v. Neff, 95 U.S.714, 720, 24 L. Ed.

565 (1877).

As times changed, that “strict territorial

approach yielded to a less rigid understanding” while

remaining true to the Due Process Clause that “act[s]

as an instrument of interstate federalism

. . . sometimes act[ing] to divest the State of its power

to render a valid judgment.” Daimler AG v. Bauman,

571 U.S. 117, 126, 134 S. Ct. 746, 187 L. Ed. 2d 624

(2014); World-Wide Volkswagen Corp. v. Woodson, 444

U.S. 286, 294 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980).

Thus, following the canonical opinion of Int'l Shoe Co.

v. State of Wash., Off. of Unemployment Comp. &

6

Placement, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed.

95 (1945), “the relationship among the defendant, the

forum, and the litigation . . . became the central

concern of the inquiry into personal jurisdiction.”

Daimler AG, 571 U.S. at 126 (quoting Shaffer v.

Heitner, 433 U.S. 186, 97 S. Ct. 2569, 53 L. Ed. 2d 683

(1977)). While the non-resident defendant may not be

physically present, his forum-directed actions are the

equivalent and when sufficient, the non-resident can

expect to be hailed into court in those states.

A clearly understood basis for the proper

exercise of personal jurisdiction is that a defendant can

“structure [its] primary conduct” to lessen or avoid

exposure to a given State's courts. World-Wide

Volkswagen, 444 U. S at 297. Again, the defendant’s

form-directed actions either allow or disallow the

court’s exercise of personal jurisdiction. And although

the connection has been loosened and at times termed

“close enough,” based upon the non-resident

defendant’s other forum activities, proof of a

connection is still required. Ford Motor Co. v. Montana

Eighth Judicial Dist. Court, 592 U. S. ––––, ––––, 141

S.Ct. 1017, 209 L.Ed.2d 225 (2021).

Personal jurisdictional generally falls into two

categories: general and specific. Daimler AG, 571 U.S.

at 127. Both are based upon the defendant’s decisions

and actions.

General jurisdiction can only be exercised in

states where the defendant is “essentially at home.” It

is dispute-blind, meaning that “[a] court may assert

7

general jurisdiction over foreign (sister-state or foreign

country) corporations to hear any and all claims

against them when their affiliations with the State are

so ‘continuous and systematic’ as to render them

essentially at home in the forum State.” Goodyear

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

919, 131 S. Ct. 2846, 180 L. Ed. 2d 796 (2011). Those

claims may concern events and conduct anywhere in

the world. But only a select set of affiliations with a

forum will permit the exercise of such sweeping

jurisdiction. Id.

Absent exceptional circumstances, a corporation

is generally “at home” only where it is incorporated or

where it is headquartered. Daimler AG, 571 U.S. at

135–38. Both are forum contacts purposefully created

by the defendant. A corporation can choose where to

incorporate and where to be headquartered.

The facts and holdings in BNSF Railway are

illustrative . In BNSF Ry. Co. v. Tyrrell, 581 U.S. 402,

137 S. Ct. 1549, 198 L. Ed. 2d 36 (2017), railroad

employees sued their employer, BNSF, in Montana

state court for damages suffered from an on-the job

injury under the Federal Employers' Liability Act. Id.

at 1553. The employees did not reside in Montana and

the injuries did not occur there. Id. BNSF did not

maintain its principal place of business there, nor was

it incorporated there. Id. To be sure, BNSF maintained

tracks in Montana, did business there, and employed

Montana workers. Id. at 1554. BNSF had contacts

with the forum. In concluding that Montana could not

8

exercise general jurisdiction over BNSF, this Court

explained:

BNSF, we repeat, is not incorporated in

Montana and does not maintain its principal

place of business there. Nor is BNSF so heavily

engaged in activity in Montana “as to render [it]

essentially at home” in that State. As earlier

noted, BNSF has over 2,000 miles of railroad

track and more than 2,000 employees in

Montana. But, as we observed in Daimler, “the

general jurisdiction inquiry does not focus solely

on the magnitude of the defendant's in-state

contacts.” Rather, the inquiry “calls for an

appraisal of a corporation's activities in their

entirety”; “[a] corporation that operates in many

places can scarcely be deemed at home in all of

them.” In short, the business BNSF does in

Montana is sufficient to subject the railroad to

specific personal jurisdiction in that State on

claims related to the business it does in

Montana. But in-state business, we clarified in

Daimler and Goodyear, does not suffice to

permit the assertion of general jurisdiction over

claims like [Plaintiffs'] that are unrelated to any

activity occurring in Montana.

Id. at 1559.

Consent jurisdiction, a form of general

jurisdiction, is conceptually similar. It too is defendant

focused. Mallory, 600 U.S. at 138 (“[o]ur precedents

have recognized, too, that ‘express or implied consent’

9

can continue to ground personal jurisdiction—and

consent may be manifested in various ways by word or

deed”). Consent, either expressly or implied, can be

used to invoke jurisdiction over a non-resident

defendant. Ins. Corp. of Ireland v. Compagnie des

Bauxites de Guinee, 456 U.S. 694, 703–04, 102 S. Ct.

2099, 72 L.Ed.2d 492 (1982). Consent can be found in

a variety of legal scenarios, including when parties

agree in advance to submit to the jurisdiction of a given

court, see e.g., National Equipment Rental, Ltd. v.

Szukhent, 375 U.S. 311, 316, 84 S.Ct. 411, 414, 11

L.Ed.2d 354 (1964), and based on the defendant’s

stipulation, See Petrowski v. Hawkeye-Security Co.,

350 U.S. 495, 76 S. Ct. 490, 100 L.Ed. 639 (1956).

Specific jurisdiction, in contrast, is neither

dispute blind nor based upon consent but instead “is

confined to adjudication of issues deriving from, or

connected with, the very controversy that establishes

jurisdiction.” Bristol-Myers Squibb Co. v. Superior Ct.

of California, San Francisco Cnty., 582 U.S. 255, 262,

137 S. Ct. 1773, 198 L. Ed. 2d 395 (2017).

Pragmatically, it is known as case-linked jurisdiction.

See Goodyear, 564 U.S. at 919. Specific jurisdiction

requires purposeful availment. The contacts must be

the defendant's own choice and not “random, isolated,

or fortuitous.” Keeton v. Hustler Magazine, Inc., 465

U.S. 770, 774, 104 S. Ct. 1473, 79 L.Ed.2d 790 (1984).

Before a court may exercise specific jurisdiction

over a defendant, three requirements must be met: (1)

"the plaintiff's service of process upon the defendant

must have been procedurally proper"; (2) "there must

10

be a statutory basis for personal jurisdiction that

renders such service of process effective"; and (3) "the

exercise of personal jurisdiction must comport with

constitutional due process principles." Waldman v.

Palestine Liberation Org., 835 F.3d 317, 327-28 (2d

Cir. 2016) (quoting Licci ex rel. Licci v. Lebanese

Canadian Bank, SAL, 673 F.3d 50, 59-60 (2d Cir.

2012)).

The third requirement — compliance with due

process — is at issue here. As this Court has long held,

due process demands that each defendant over whom

a court exercises jurisdiction have some "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, 326 U.S. at

316.

The unilateral activity of another party or a

third person has never been a factor. Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174,

85 L. Ed. 2d 528 (1985); see also Walden v. Fiore, 571

U.S. 277, 284, 134 S. Ct. 1115, 188 L.Ed.2d 12 (2014).

This Court has “consistently rejected attempts to

satisfy the defendant-focused ‘minimum contacts’

inquiry by demonstrating contacts between the

plaintiff . . . and the forum State.” Id.; Helicopteros

Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,

417, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984).

“[H]owever significant the plaintiff’s contacts with the

forum may be, those contacts cannot be ‘decisive in

determining whether the defendant’s due process

rights are violated.’” Walden, 571 U.S. at 284; Rush v.

11

Savchuk, 444 U.S. 320, 332, 100 S. Ct. 571, 62 L. Ed.

2d 516 (1980); Keeton, 465 U.S. at 781 n.13 (“[e]ach

defendant’s contacts with the forum State must be

assessed individually.”).

The proper exercise of personal jurisdiction may

not rest upon the contacts with the forum state of

another corporate entity, even if it is an affiliated

entity. Cannon Mfg. Co. v. Cudahy Packing Co., 267

U.S. 333, 335, 45 S. Ct. 250, 69 L. Ed. 634 (1925).

To be sure, there are situations where the

contacts of another related entity may satisfy the

required minimum contacts. Piercing the corporate

veil, is one such situation. But more typically,

corporations are treated as separate persons. Daimler,

571 U.S. at 134–35, 135 n.13.

In sum, what all these forms of personal

jurisdiction have in common is that courts cannot

impute the actions of another to the non-resident

defendant to create personal jurisdiction.

B.

IN RE PLATIUM AND PALLADIUM

LITIGATION

Contrary to this well-established, defendant

conduct focused framework, the Second Circuit holds

that specific jurisdiction also exists so long as the

plaintiff alleges that “(1) a conspiracy existed; (2) the

defendant participated in the conspiracy; and (3) a coconspirator’s overt acts in furtherance of the

conspiracy had sufficient contacts with a state to

12

subject that co-conspirator to jurisdiction in that

state.” Charles Schwab Corp. v. Bank of Am. Corp.

(Schwab I), 883 F.3d 68, 86-88 (2d Cir. 2018). One

conspirator’s minimum contacts allow for personal

jurisdiction over all co-conspirators, even when each

alleged co-conspirator lacks minimum contacts with

the forum. Id. at 86. In other words, a co-conspirator’s

minimum contacts, exercised in furtherance of the

alleged conspiracy, fulfill the requirement that the

defendant must have purposefully availed itself of the

privilege of doing business in the forum. Id.

Conspiracy jurisdiction ignores the requirement

that the alien or non-resident defendant have a

“relationship of control, direction, or supervision.” In

re Platinum & Palladium Antitrust Litig., 61 F.4th at

272 (“But the argument that our exercise of conspiracy

jurisdiction should be limited by agency principle is no

longer available.”); see also Schwab Short-Term Bond

Mkt. Fund v. Lloyds Banking Grp. PLC (Schwab II),

22 F.4th 103, 124-25 (2d Cir. 2021), cert. denied, 142

S. Ct. 2852 (2022) (“[O]ur caselaw does not require a

relationship of control, direction, or supervision” to

establish conspiracy jurisdiction).

Ignoring

the

defendant-focused

activity

requirement which has always been the bedrock for

the proper exercise of specific jurisdiction is troubling.

This has caused at least one district court to propose

additional criteria.

In addition, I adopt the following two

principles under the purposeful

13

availment analysis to further ensure

that its application is consistent with

due process:

1.

The act or effect in the

forum must be a “principal object of the

conspiracy.” RMS Titanic, Inc. v.

Kingsmen Creatives, Ltd., 579 Fed.

Appx. 779, 789-90 (11th Cir. 2014); and

2.

While “control, direction,

or supervision” is not required, “[t]he

conspiratorial contacts must be of the

sort that a defendant ‘should

reasonably anticipate being haled into

court’ in the forum as a result of them.”

Schwab II at 125 (citation omitted).

Sotloff v. Qatar Charity, No. 22-CV-80726, ___F. Supp.

3d ___, 2023 WL 3721683 at *17 (S.D. Fla. 2023).

Creating more criteria to save a theory that

should not exist is not the proper direction.

C.

THE HISTORY AND SPLIT OF

AUTHORITIES

ON

WHETHER

CONSPIRACY JURSIDICTION IS A

PROPER

FORM

OF

SPECIFIC

JURISDICTION

The exercise of conspiracy jurisdiction can be

traced back to the Ninth Circuit’s decision in Giusti v.

Pyrotechnic Industries, 156 F.2d 351 (9th Cir.), cert.

14

denied, 329 U.S. 787 (1946), where service was

permitted on a non-resident defendant under sections

of the California Civil Code. Id. The non-resident

defendant objected to the court’s exercise of personal

jurisdiction, arguing that the statute did not permit

service because the complaint cited only business

transacted by alleged co-conspirators, and the

objecting defendant corporation itself had done

“nothing in California.” Id. at 352. The Ninth Circuit

rejected that argument, holding that “the California

members of the conspiracy were agents of the nonresident corporation in the conspiracy's attempt to

destroy appellant's business.” Id. at 354. It equated coconspirators with agents employed to act in the state

and, without more, reversed the district court's order

that service be quashed. Id.

Thereafter conspiracy jurisdiction largely

remained dormant until the 1970s. In Leasco Data

Processing Equipment Corp. v. Maxwell, the Second

Circuit noted that “the mere presence of one

conspirator . . . does not confer personal jurisdiction

over another alleged conspirator.” 468 F.2d 1326, 1343

(2d Cir. 1972), abrogated by Morrison v. Nat'l

Australia Bank Ltd., 561 U.S. 247, 130 S. Ct. 2869, 177

L. Ed. 2d 535 (2010). However, the court remanded the

case for a determination as to whether an agency

relationship existed such that it could be shown one of

the alleged conspirators who had acted in the forum

state might have done so under the direction and

authority of the one over whom jurisdiction was

sought. Id.

15

Despite the lack of a definitive holding and

analysis of conspiracy jurisdiction, subsequent cases

viewed Leasco as “opening the door” to conspiracy

jurisdiction. Turner v. Baxley, 354 F. Supp. 963, 97879 (D. Vt. 1972) (relying on Leasco to hold that,

although an act in furtherance of a conspiracy is alone

insufficient to establish personal jurisdiction over an

out-of-state co-conspirator, conspiracy jurisdiction was

applied by analyzing whether the alleged

conspiratorial conduct, which occurred outside the

state, entailed actual or constructive knowledge of the

effect—the tortious act of the co-conspirator—in the

state); Socialist Workers Party v. Attorney General, 375

F. Supp. 318, 332-33 (S.D.N.Y. 1974) (after the

plaintiffs sought to base jurisdiction on one act,

committed in the forum and attributed to the

defendants only through the allegation of conspiracy,

the court declared that “under certain circumstances”'

New York law recognizes a conspiracy theory of

jurisdiction, noting, however, that the plaintiff bears

the burden of going forward with the evidence and

concluded that the facts alleged did not adequately

“connect”' the defendants with the forum state).

Although some courts embraced or at least

recognized the existence of conspiracy jurisdiction,

others rejected it. The Seventh Circuit has rejected

conspiracy jurisdiction, explaining that “[e]ven if it

were viable, the [conspiracy jurisdiction] theory would

not permit a plaintiff to draw a defendant into court in

Illinois simply by alleging a conspiracy that includes

some Illinois defendants and some out-of-state

defendants, while making no effort to connect the two.”

16

Smith v. Jefferson Cnty. Bd. of Educ., 378 F. App'x 582,

586 (7th Cir. 2010); see also Ploense v. Electrolux Home

Products, Inc., 377 Ill. App. 3d 1091, 317 Ill.Dec. 773,

882 N.E.2d 653, 666 (2007) (stating that an Illinois

Supreme Court case “effectively scuttl[ed]” the theory).

Illinois courts reiterated that “in order to exercise in

personam jurisdiction over a non[ ]resident defendant,

due process requires that he have certain ‘minimum

contacts' with the forum so that ‘maintenance of the

suit does not offend traditional notions of fair play and

substantial justice.” Ploense. 882 N.E.2d at 667 (“our

supreme court was concerned that the conspiracy

theory of jurisdiction would allow the exercise of

personal jurisdiction over a nonresident defendant

who had no minimum contacts with the forum state.

We should be concerned, too.”).

The First Circuit, Third Circuit, and Ninth

Circuit have similarly rejected conspiracy jurisdiction.

LaSala v. Marfin Popular Bank Pub. Co., 410 F. App'x

474, 478 (3d Cir. 2011) (concluding that “it cannot be

said that the New Jersey Supreme Court would be

likely to adopt this [conspiracy] theory of jurisdiction,

and the District Court's refusal to do so does not

provide grounds for reversing its decision.”); Chirila v.

Conforte, 47 F. App'x 838, 843 (9th Cir. 2002) (refusing

to reach a conclusion on conspiracy theory of personal

jurisdiction and questioning its validity); EcoDisc

Tech. AG v. DVD Format/Logo Licensing Corp., 711 F.

Supp. 2d 1074, 1089 (C.D. Cal. 2010) (“California law

does not recognize conspiracy as a basis for acquiring

jurisdiction over a foreign defendant.”).

17

The District Court in Maine provided a

summation of several courts throughout the United

States who rejected conspiracy jurisdiction, noting

that using conspiracy jurisdiction as a basis for

personal jurisdiction is frivolous with courts and

scholars alike being skeptical of its conformance with

notions of constitutional due process. In re New Motor

Vehicles Canadian Exp., 307 F. Supp. 2d 145 (D. Me.

2004), amended sub nom. In re New Motor Vehicles

Canadian Exp. Antitrust Litig., No. MDL 1532, 2004

WL 1571617 (D. Me. Apr. 20, 2004) (holding that the

assertion of specific personal jurisdiction over foreign

corporations through conspiracy theory, based upon

jurisdictional contacts of co-conspirators, was not

available to obtain personal jurisdiction over nonresident defendants); see, e.g., Ann Althouse, The Use

of Conspiracy Theory to Establish in Personam

Jurisdiction: A Due Process Analysis, 52 Fordham L.

Rev. 234 (1983) (expressing skepticism of the

conspiracy jurisdiction theory’s conformance to notions

of constitutional due process).

Suffice it to say, there is a strong split of

authority.

Although not addressing the question of the

existence of conspiracy personal jurisdiction, this

Court itself has labeled the analogous conspiracy

venue doctrine as having “all the earmarks of a

frivolous albeit ingenious attempt to expand the

statute.” Bankers Life & Cas. Co. v. Holland, 346 U.S.

379, 384, 74 S. Ct. 145, 98 L. Ed. 106 (1953).

18

Conspiracy venue, in contrast, has been easily

rejected. One court declined to apply conspiracy venue

jurisdiction, because “the adoption of the coconspirator theory of venue would greatly and

unwarrantedly extend the already liberal antitrust

venue provision. Id. at 262. “[O]ne defendant could be

sued any place that any one other defendant could be

sued, despite the fact that Congress definitely

established detailed venue provisions separately

applicable to each defendant. It is better that venue as

to each and every defendant in an antitrust action be

individually established.” Id.

Another court explained that, “[i]f venue could

be established by merely alleging that a corporate

defendant participated in a conspiracy, some alleged

members of which transacted business in the district,

antitrust plaintiffs would then have the power to force

suit in distant, inconvenient forums, a result

apparently unintended by Congress.” West Virginia v.

Morton Int'l, Inc., 264 F. Supp. 689, 695-96 (D. Minn.

1967). The place of venue would “depend upon mere

allegations that the company transacting business

conspired with the defendant sought to be sued in the

district,” merits-based proof. Id.

If conspiracy venue is unacceptable, then the

same should hold true for conspiracy personal

jurisdiction.

19

II.

THE

FORGOTTEN

ROLE

INTERNATIONAL COMITY

OF

The personal jurisdiction inquiry usually

proceeds in two steps. First the court determines

whether each defendant has minimum contacts with

the forum. Second, the court determines whether the

exercise of jurisdiction would “comport with fair play

and substantial justice.” Walden, 571 U.S. at 283

(quoting International Shoe, 326 U.S. at 316).

The Second Circuit acknowledged that

conspiracy jurisdiction is controversial and may suffer

from several flaws, as “[c]onspiracy jurisdiction seems

to have expanded beyond its more limited roots.” In re

Platinum & Palladium Antitrust Litig., 61 F.4th at

272. Subjecting foreign defendants to suit in the

United States does have comity implications. Yet, the

Second Circuit briskly dismissed those concerns,

remarking, “international rapport concerns … do not

apply equally in a case, such as this one, that involves

specific jurisdiction.” Id. at 274. But why not? There

is no reason that this London-based dispute, involving

London-based entities could not and should not be

litigated in the U.K.

The concept of international comity requires

courts to at least balance competing public and private

interests in a manner that takes into account any

conflict between the public policies of the domestic and

foreign sovereigns.

20

There are many reasons for this requirement,

including diplomacy, see e.g., Harold Maier, Interest

Balancing and Extraterritorial Jurisdiction, 31 Am. J.

Comp. L. 579, 589 (1983), reciprocity, see e.g., Hilton v.

Guyot, 159 U.S. 113, 123, 16 S. Ct. 139, 143, 40 L. Ed.

95 (1895), utility, see, e.g., Henry Wheaton, Elements

of International Law § 79 (Richard Henry Dana, Jr.

ed., 8th ed. 1866), moral obligation, see, e.g., Ian

Brownlie, Principles of Public International Law 31

(3d ed. 1979); Joseph Story, Commentaries on the

Conflict of Laws § 33 (1834), expediency, see, e.g.,

Somportex, Ltd. v. Philadelphia Chewing Gum Corp.,

453 F.2d 435, 440 (3d Cir. 1971), or courtesy.

None of this is found in the Second Circuit’s

reasoning.

Comity, particularly towards European entitles,

should not be relegated to a concern that can be

ignored when convenient to provide a U.S. venue for a

civil dispute. Judicial decisions should reflect the

systemic value of reciprocal tolerance. See Maier,

Extraterritorial Jurisdiction at a Crossroads: An

Intersection Between Public and International Law,

76 Am. J. Int'l L. 280, 281–285 (1982); J. Story,

Commentaries on the Conflict of Laws §§ 35, 38 (M.

Bigelow ed. 1883); Societe Nationale Industrielle

Aerospatiale v. U.S. Dist. Ct. for S. Dist. of Iowa, 482

U.S. 522, 555, 107 S. Ct. 2542, 2561, 96 L. Ed. 2d 461

(1987).

Under international comity, “states normally

refrain from prescribing laws that govern activities

21

connected with another state when the exercise of such

jurisdiction is unreasonable.” Maxwell Comm'n Corp.

v. Societe Generale (In re Maxwell Comm'n Corp.), 93

F.3d 1036, 1047–48 (2d Cir. 1996) (“Maxwell II”)

(quoting Restatement (Third) of Foreign Relations

§ 403(1)). The doctrine is “concerned with maintaining

amicable working relationships between nations…” JP

Morgan Chase Bank v. Altos Hornos de Mex., S.A. de

C.V., 412 F.3d 418, 423 (2d Cir. 2005) (quoting British

Airways Bd. v. Laker Airways Ltd., [1984] E.C.C. 36,

41 (Eng. C.A.)).

Again, broad conspiracy jurisdiction designed to

bring foreign controversies and defendants into U.S.

courts does just the opposite. The Restatement lists a

number of considerations for determining whether the

exercise of jurisdiction is “unreasonable,” including: (a)

the link of the activity to the territory of the regulating

state, i.e., the extent to which the activity takes place

within the territory, or has substantial, direct, and

foreseeable effect upon or in the territory; (b) the

connections, such as nationality, residence, or

economic activity, between the regulating state and

the person principally responsible for the activity to be

regulated, or between that state and those whom the

regulation is designed to protect; (c) the character of

the activity to be regulated, the importance of

regulation to the regulating state, the extent to which

other states regulate such activities, and the degree to

which the desirability of such regulation is generally

accepted[;] (d) the existence of justified expectations

that might be protected or hurt by the regulation; (e)

the importance of the regulation to the international

22

political, legal, or economic system; (f) the extent to

which the regulation is consistent with the traditions

of the international system; (g) the extent to which

another state may have an interest in regulating the

activity; and (h) the likelihood of conflict with

regulation by another state. Restatement (Third) of

Foreign Relations Law § 403(2) (1987).

All of these should be considered before

conspiracy jurisdiction is invoked.

23

CONCLUSION

The Petition for Writ of Certiorari should be

granted.

Respectfully submitted,

MARK R. BEEBE

PRESIDENT OF THE

INTERNATIONAL

ASSOCIATION OF

DEFENSE COUNSEL

ADAMS AND REESE

701 Poydras St.

Suite 4500

New Orleans, LA 70139

(504) 581-3234

mark.beebe@arlaw.com

MICHAEL W. EADY

THOMPSON, COE, COUSINS,

IRONS, LLP

2801 Via Fortuna, Suite 300

Austin, Texas 78746

(512) 703- 5084

meady@thompsoncoe.com

Counsel for Amicus Curiae

October 2023