Reply Brief — Bristol-Myers Squibb Co. v. Superior Court of Cal., 137 S. Ct. 827 (2017) (No. 16-466)

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FILED

DEC 20 2016

No. 16-466 L_ OFFICE OF THE CLEMx

IN THE

Supreme Court of the Anited States

BRISTOL-MYERS SQUIBB COMPANY,

Petitioner,

Vv.

SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY

OF SAN FRANCISCO, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

California Supreme Court

REPLY BRIEF IN SUPPORT OF CERTIORARI

ANAND AGNESHWAR NEAL KUMAR KATYAL

ARNOLD & PORTER LLP Counsel of Record

399 Park Avenue JESSICA L. ELLSWORTH

New York, N.Y. 10022 FREDERICK LIU

SEAN MAROTTA

DANIEL S. PARISER MITCHELL P. REICH*

ARNOLD & PORTER LLP HOGAN LOVELLS US LLP

601 Massachusetts 555 Thirteenth Street, N.W.

Avenue, N.W. Washington, D.C. 20004

Washington, D.C. 20001 (202) 637-5600

neal. katyal@hoganlovells.com

* Admitted only in New York;

supervised by members of the firm.

Counsel for Petitioner

WILSON-EPES PRINTING CO., INC. — (202) 789-0086 — WASHINGTON, D.C. 20002

RULE 29.6 DISCLOSURE STATEMENT

The Rule 29.6 disclosure statement in the petition

for a writ of certiorari remains accurate.

(i)

li

TABLE OF CONTENTS

Page

RULE 29.6 DISCLOSURE STATEMENT .................. i

ee I FART Be BI on on sc ce cscccssccesscccesocessesencaee iil

i aia seach ideiniciradinidcitimsinnionuiindaniiila 1

FERS ae ata ee Ee Ce aE 2

I. RESPONDENTS’ GROUNDS ' FOR

DISTINGUISHING THE SPLIT ARE

TE cicientinsgduntinnnnstranésiitinbsbetiendinmionceuns 2

Il. RESPONDENTS’ ATTEMPT TO WAVE

AWAY THE CONFLICT WITH THIS

COURT'S CASES FALLS FLAT...................... 7

Ill. RESPONDENTS’ VEHICLE

OBJECTIONS ARE MERITLESS ................. 10

I AER elle er Or eee ACE wl 13

ill

TABLE OF AUTHORITIES

CASES:

Avocent Huntsville Corp. v. Aten Intl Co.,

552 F.3d 1324 (Fed. Cir. 2008)................00...0..c0

Beydoun v. Wataniya Rests. Holding,

Q.S.C., 768 F.3d 499 (6th Cir. 2014)...........00000.....

Burger King Corp. v. Rudzewicz,

RE A eT

Calder v. Jones,

sc cacdiubbueaiinsine 9,10

Chew v. Dietrich,

Be re EE I ID cncccieveccccccnccccaceosatececsooses

Daimler AG v. Bauman,

I I, adi ncrncictcccsbeicndinicwvesenanicn passim

Domtar, Inc. v. Niagara Fire Ins. Co.,

533 N.W.2d 25 (Minn. 1995)....................0....cecesees

Dudnikov v. Chalk & Vermilion Fine Arts,

Inc. , 514 F.3d 1063 (10th Cir. 2008) ..........00000000...

Elonis v. United States,

a cpsnbumuseenanins 11

Glater v. Eli Lilly & Co.,

ee ee es BO ccnccsecevecccsvesscvescseecesenss

Goodyear Dunlop Tires Operations, S.A. v.

Brown, 564 U.S. 915 (2011).............0..0..0.... 7, 8,12

Harlow v. Children’s Hosp..,

GSS FOG BO (Tat Cie. BOGS) ..........0000.ccce.c...scccceseeees

Helicopteros Nacionales de Colombia, S.A.

v. Hall, 466 U.S. 408 (1984) ................ceccceceeeeeeeees

Hertz Corp. v. Friend,

I sed iebieinel 13

lv

TABLE OF AUTHORITIES—Continued

Page

Intl Shoe Co. v. Washington,

es acennsnannenceenente 3,9

J. McIntyre Mach., Ltd. v. Nicastro,

RE a 10

Menken v. Emm,

503 F.3d 1050 (9th Cir. 2007)..................-.....008: 2,7

Merrill Lynch, Pierce, Fenner & Smith Inc.

v. Manning, 136 S. Ct. 1562 (2016)..............0...... 12

O’Connor v. Sandy Lane Hotel Co..,

Ee ee Se Ge Gs BED ones icecccecccccccceccccccccevcesss 7

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

558 F.3d 1210 (11th Cir. 2009).....................s00c0000 6

Phillips Petroleum Co. v. Shutts,

als rune 11

Ratliff v. Cooper Labs..,

Se ee Pe I Ee BOE Bi cecsnccscccsccccccssccccscucecaee 5

Rush v. Savchuk,

444 US. 320 (1980)......................... seecinianahe tandecacots 3

Seminole Tribe of Fla. v. Florida,

a cshenedasbunetiiin’ 8

Snowney v. Harrah’s Entm'’t, Inc.,

ee a 6

United States v. Skoien,

614 F.3d 638 (7th Cir. 2010)...............00..0. ccc cceeee. 9

Vons Cos., Inc. v. Seabest Foods, Inc.,

Be D SEE EME SEDs occcccccocscescasccnssuscccersccesese 6

Walden v. Fiore,

Es Cy Oe ED iccndassnenicccescoversanvesessnecereces 8,9

Vv

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES:

5B Charles Alan Wright et al., Federal

Practice and Procedure

§ 1351 (3d ed. Apr. 2016 update)........................0.. 3

Transfer Order, In re Plavix Mkig., Sales

Practices & Prods. Liab. Litig., No. 2418

Ae 8 ES | Ree er SS 12

IN THE

Supreme Court of the United States

No. 16-466

BRISTOL-MYERS SQUIBB COMPANY,

Petitioner,

v.

SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY

OF SAN FRANCISCO, et ail.,

Respondents.

On Petition for a Writ of Certiorari to the

California Supreme Court

REPLY BRIEF IN SUPPORT OF

CERTIORARI

INTRODUCTION

Respondents’ brief in opposition is more notable for

what it doesn’t say than what it does. Respondents

do not deny that there is a deep and intractable split

on what it means for a plaintiffs claims to “arise out

of or relate to” a defendant’s forum contacts. Re-

spondents do not deny that the Court’s past cases

stated that a court would not have specific jurisdic-

tion over a product-liability suit similar to respond-

ents’—where the injury occurred and the product

was manufactured and sold outside the forum. And

respondents do not deny that in every case where

this Court has found specific jurisdiction over a

defendant proper, there has been at least a but-for

(1)

2

causal connection between the defendant’s forum

contacts and the plaintiffs claims—a connection that

the California Supreme Court did not demand of

respondents’ claims.

Respondents instead resort to distraction and mis-

direction. They argue their case does not implicate

the relatedness split—but point to legal irrelevancies

and severely distort the record. They argue that the

California Supreme Court’s relatedness test is con-

sistent with this Court’s cases—but only at the

highest level of generality. And they argue that the

Court should await a better vehicle to answer the

question presented—but ignore the ongoing, real-

world harm being visited upon mass-tort defendants

by the decision below. See Pharm. Research & Mfrs.

of Am. Amicus Br. (PhRMA Br.) 7-10; Prod. Liab.

Advisory Council, Inc. Amicus Br. (PLAC Br.) 22-25;

GlaxoSmithKline Amicus Br. (GSK Br.) 6-9.

The petition should be granted.

ARGUMENT

I. RESPONDENTS’ GROUNDS FOR

DISTINGUISHING THE SPLIT ARE

MERITLESS.

1. As the petition demonstrates, courts have divid-

ed into three camps over the degree of causation

required to satisfy the “relatedness” prong of the

personal jurisdiction test. Pet. 11. Some courts

require “but for” causation. E.g. Menken v. Emm,

503 F.3d 1050, 1058 (9th Cir. 2007). Others require

“proximate cause” or foreseeability. E.g. Harlow v.

Children’s Hosp., 432 F.3d 50, 61 (1st Cir. 2005).

And still others—including the California Supreme

3

Court in its decision below—require no causal link at

all. E.g. Pet. App. 22a.

Respondents do not dispute that well-established

split. Nor do they dispute that California has chosen

one side of it. See Br. in Opp. 11. Instead, they

argue that this case does not implicate the split

based on two irrelevant facts and one mischaracteri-

zation of the record.

The first irrelevancy is respondents’ observation

that McKesson, a separate defendant, has not chal-

lenged personal jurisdiction. Respondents say (at 10)

that McKesson’s involvement justifies asserting

jurisdiction over Bristol-Myers, too. Yet the Court

held 36 years ago that “(t]he requirements of Jnter-

national Shoe |Co. v. Washington, 326 U.S. 310

(1945)| * * * must be met as to each defendant over

whom a state court exercises jurisdiction”; the “as-

sertion of jurisdiction over [one defendant] based

solely on the activities of [another defendant] * * * is

plainly unconstitutional.” Rush v. Savchuk, 444 U.S.

320, 331-332 (1980). Whether Bristol-Myers is

subject to personal-jurisdiction does not change

because respondents also sued someone else.

The second irrelevancy is that this suit includes

both resident and non-resident plaintiffs. As re-

spondents see it, so long as Bristol-Myers must

litigate California plaintiffs’ claims, it might as well

litigate out-of-state plaintiffs’ claims, too. Br. in

Opp. 10. But “[t]here is no such thing as supple-

mental specific personal jurisdiction; if separate

claims are pled, specific personal jurisdiction must

independently exist for each claim and the existence

of personal jurisdiction for one claim will not provide

the basis for another claim.” 5B Charles Alan

4

Wright et al., Federal Practice and Procedure § 1351

n.30 (3d ed. Apr. 2016 update). Were it otherwise, a

State’s permissive-joinder rules would be the meas-

ure of due process. That illogical result is not the

law, and respondents do not cite a single authority

suggesting that it is.

And then there is the mischaracterization. Re-

spondents say, notwithstanding the California

Supreme Court’s acknowledgment to the contrary

(Pet. App. 29a), that there is a causal connection

between Bristol-Myers’ California activities and

respondents’ claims. According to respondents,

Bristol-Myers “distributed Plavix to non-residents

through McKesson,” and Bristol-Myers’ “research

and development activities in California were related

to the claims of the non-residents of flaws in [Bristol-

Myers’] drug development practices.” Br. in Opp. 13.

Tellingly, no cite follows either of those assertions.

That is because they are baseless. Respondents

“have adduced no evidence to show how or by whom

the Plavix they took was distributed to the pharma-

cies that dispensed it to them.” Pet. App. 47a-48a

(Werdegar, J., dissenting) (emphasis omitted). And

it is uncontested that “research and development of

Plavix did not take place in California.” Jd. at 5a

(majority opinion). Even the California Supreme

Court did not rely on these supposed California

connections. Respondents have simply invented

them from whole cloth.

2. Beyond these false distinctions, respondents

offer nothing to resist the inevitable conclusion: any

court that requires a causal connection between the

defendant’s forum activities and the plaintiffs claim

5

would have dismissed respondents’ claims against

Bristol-Myers.

The court below admitted as much. Even though

“the nonresident plaintiffs’ claims would be exactly

the same if [Bristol-Myers] had no contact whatsoev-

er with California,” Pet. App. 29a, the court thought

the requisite connection present because “all the

plaintiffs’ claims arise out of [Bristol-Myers’] nation-

wide marketing and distribution of Plavix.” Id.

(emphasis added). Respondents repeat this phrase

as if it is indicative of a causal connection. Br. in

Opp. 12-13. But the California Supreme Court’s

comment that respondents’ claims allegedly arose

from Bristol-Myers’ “nationwide” conduct does abso-

lutely nothing to prove that they arose from the

company’s California conduct; it simply changes the

subject.

Indeed, as the petition noted (at 16-18), essentially

the same fact pattern has arisen in courts on the

other side of the split, and in each case those courts

came out the other way. See Glater v. Eli Lilly &

Co., 744 F.2d 213, 216 (1[st Cir. 1984); Ratliff v.

Cooper Labs., 444 F.2d 745, 746-748 (4th Cir. 1971).

Respondents speculate (at 10) that these courts

might have reached different conclusions if those

defendants had engaged in “nationwide marketing

activities” like Bristol-Myers. But they did. The

defendant in Glater had “marketed [the drug] na-

tionwide since 1947,” 744 F.2d at 214, and the de-

fendant in Ratliff had run advertisements “in na-

tional medical journals,” 444 F.2d at 748. The courts

thought that conduct immaterial for a simple reason:

the particular plaintiffs claims at issue “did not arise

from” the defendant’s “contacts with the forum.”

6

Glater, 744 F.2d at 216 (emphasis added); see Ratliff,

444 F.2d at 747. Had the California Supreme Court

applied the same standard, it would have dismissed

respondents’ claims, too.

3. Last, respondents purport (at 11) to show that

the Court has often denied similar petitions. Not at

all. In both of the California cases respondents’ cite,

as well as the Second Circuit case, there was no

question that the defendants’ forum conduct was a

but-for cause of the plaintiffs’ injuries; the only

question was whether the degree of causation was

sufficient. See Snowney v. Harrah’s Entm't, Inc., 112

P.3d 28, 44 (Cal. 2005) (claims “premised on alleged

omissions during * * * transactions with California

residents and in * * * California advertisements”):

Vons Cos., Inc. v. Seabest Foods, Inc., 926 P.2d 1085,

1099 (Cal. 1996) (injuries occurred “[b]ecause of [a]

contractual relationship in California”); Chew v.

Dietrich, 143 F.3d 24, 30 (2d Cir. 1998) (individual

“recruited in [the forum state]” for fatal boat race). In

Avocent Huntsville Corp. v. Aten International Co.,

552 F.3d 1324 (Fed. Cir. 2008), the Federal Circuit

found personal jurisdiction lacking, making any

failure to require but-for causation immaterial. Id.

at 1326. And in Domtar, Inc. v. Niagara Fire Insur-

ance Co., 533 N.W.2d 25 (Minn. 1995), there was no

dispute over relatedness at all; that case turned

entirely on purposeful availment. See id at. 32-33.

The need to resolve this split has grown increasing-

ly pressing in recent years. Five courts of appeals

have taken a side in the last decade. See Beydoun v.

Wataniya Restaurants Holding, Q.S.C., 768 F.3d 499,

507-508 (6th Cir. 2014); Oldfield v. Pueblo De Bahia

Lora, S.A., 558 F.3d 1210, 1222-1223 (11th Cir.

7

2009); Avocent, 552 F.3d at 1337; Dudnikov v. Chalk

& Vermilion Fine Arts, Inc., 514 F.3d 1063, 1078

(10th Cir. 2008); O’Connor v. Sandy Lane Hotel Co.,

496 F.3d 312, 323 (8d Cir. 2007). Since Goodyear

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

915, 920 (2011) and Daimler AG v. Bauman, 134 S.

Ct. 746, 754 n.5 (2014), plaintiffs have attempted

ever-more-creative ways of replicating the old “doing

business” test under the rubric of specific jurisdic-

tion. Pet. 26, 29. And in California, plaintiffs can

now shop suits between the federal courthouse and

the state one to select their favored jurisdictional

rule. Compare Menken, 503 F.3d at 1058, with Pet.

App. 22a; see also GSK Br. 9; Chamber of Commerce

Amicus Br. (Chamber Br.) 8-9. The Court should

grant the writ and bring clarity and uniformity to

this critical area of the law.

Il. RESPONDENTS’ ATTEMPT TO WAVE

AWAY THE CONFLICT WITH THIS

COURT’S CASES FALLS FLAT.

1. Nor can respondents wave away the conflict

between the decision below and this Court’s cases.

Respondents do not contend that they suffered any

Plavix-related injuries in California or that the

Plavix they ingested was manufactured or sold in

California. See Pet. 6. Respondents therefore do not

contest that their claims do not fit within Goodyear’s

rule that there is no specific jurisdiction in a product-

liability case when the plaintiffs injury did not occur

in the forum and the product alleged to have caused

the injury was not manufactured or sold there. See

Pet. 24. And respondents do not disagree that the

California Supreme Court’s analysis would permit

the hypothetical Polish car accident Daimler, 134 S.

8

Ct. at 754 n.5, identified as a “question * * * of

general jurisdiction” to proceed in California under a

specific-jurisdiction label. See Pet. 26-27.

Respondents instead dismiss Goodyear and Daim-

ler’s statements as “passing dictum.” Br. in Opp. 14.

But the binding “holding” of a case includes not just

its result but also its “rationale.” Seminole Tribe of

Fla. v. Florida, 517 U.S. 44, 66-67 (1996). Goodyear

and Daimler’s statements clarified the distinction

between general and specific jurisdiction, a distinc-

tion that the courts below had “elided.” Goodyear,

564 U.S. at 926. Indeed, Goodyear explicitly stated

that the “North Carolina courts lacked specific

jurisdiction to adjudicate” the plaintiffs’ product-

liability claims. Jd. at 919. If that is not a holding,

then not much is.

2. Respondents also argue (at 14) that there is no

conflict because the decision below—in their view—

adhered to Goodyear’s rule that specific jurisdiction

is “confined to adjudication of issues deriving from,

or connected with, the very controversy that estab-

lishes jurisdiction.” 564 U.S. at 919 (internal quota-

tion marks omitted).

But saying that this Court’s cases require a “con-

nection” between the plaintiffs claims and the de-

fendant’s forum contacts merely restates the ques-

tion presented. The question presented is how close

the connection must be. See Pet. i. As we have

demonstrated—and as respondents do not dispute—

in every case where the Court has found specific

jurisdiction, there has at least been a but-for causal

relationship between the plaintiff's claims and the

defendant’s forum contacts. Pet. 22-23.

9

Indeed, Walden v. Fiore, 134 S. Ct. 1115, 1124

(2014) used just those words. It explained that there

was specific jurisdiction in California over the defa-

mation defendants in Calder v. Jones, 465 U.S. 783

(1984) because “the reputational injury caused by the

defendants’ story would not have occurred but for the

fact that the defendants wrote an article for publica-

tion in California that was read by a large number of

California citizens.” Walden, 134 S. Ct. at 1124

(emphasis added). The California Supreme Court’s

relatedness test, which does not require a but-for

connection (see Pet. App. 30a), conflicts with this

Court’s cases.

3. The closest respondents come to defending the

sliding-scale approach is to argue that it is consistent

with this Court’s disjunctive “aris[ing] out of or

related to” formulation of the relatedness require-

ment. Br. in Opp. 14 (quoting Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 472 (1985)). But the Court

has explicitly “decline[d] to reach the question|[]” of

“whether the terms ‘arising out of and ‘related to’

describe different connections between a cause of

action and a defendant’s contacts with a forum.”

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

466 U.S. 408, 415 n.10 (1984). And there is no

reason to think they do. Opinions are not statutes;

every word need not have distinct meaning. See

United States v. Skoien, 614 F.3d 638, 640 (7th Cir.

2010).

Respondents also contend that specific jurisdiction

must be boundless because the Court has said that

specific jurisdiction has “flourished” in the years

since International Shoe. Br. in Opp. 16 (quoting

Daimler, 134 S. Ct. at 758 n.10). And so it has. The

10

Court has held there can be specific jurisdiction in

some circumstances over a manufacturer that sells

products into the forum through a distributor, see J.

McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 884-

885 (2011) (plurality opinion), or over a defendant

who targets tortious conduct at the forum, even

though he never sets foot there, see Calder, 465 U.S.

at 788-789. But the Court has never reached as far

as the decision below did.

4. Finally, respondents cannot ignore the violence

that the decision below does to Daimler. Respond-

ents block quote the California Supreme Court’s

assurances that its decision does not necessarily

subject Bristol-Myers to jurisdiction on all claims in

California. Br. in Opp. 16 (citing Pet. App. 35a). But

respondents do not deny that the decision below

subjects Bristol-Myers to jurisdiction in California on

all product-liability claims. See Pet. 27-28. The

California Supreme Court’s expansive notion of

specific jurisdiction is practically indistinguishable

from general jurisdiction. See PLAC Br. 14-17;

Chamber Br. 14-15; Wash. Legal Found. Amicus Br.

20-21. It is therefore at odds with this Court’s cases.

lil. RESPONDENTS’ VEHICLE OBJECTIONS

ARE MERITLESS.

1. Respondents are thus left to flyspeck this case’s

suitability as a vehicle to resolve the question pre-

sented. Br. in Opp. 17-20. Those efforts are unavail-

ing.

Respondents claim (at 17) that the Court should

await a case that can resolve both whether a causa-

tive link is required for relatedness, and, if so,

whether a but-for connection is sufficient. But there

is nothing that prevents the Court from laying down

11

a single standard for relatedness on these facts. And

not many plaintiffs satisfy the but-for standard but

flunk the proximate-cause test, as some courts have

recognized in declining to choose between the two.

See Pet. 12 n.2.

The essential disagreement among the lower courts

is whether a causative link is required or not. See

Pet. 11-16. The many cases arising on similar facts

counsel in favor of resolving that dispute immediate-

ly. See PhRMA Br. 7-10; GSK Br. 6-9. If the Court

wishes, it can always proceed incrementally—as it

has in other contexts—in fleshing out the precise

degree of relatedness required. See Elonis v. United

States, 135 S. Ct. 2001, 2013 (2015) (“Such prudence

is nothing new.”).

2. Respondents also worry that reversing the deci-

sion below will have consequences for nationwide

class and mass actions. Br. in Opp. 18. But class

actions are different than mass actions, and involve

different due-process principles. Cf. Phillips Petrole-

um Co. v. Shutts, 472 U.S. 797, 811-814 (1985). And

changing current practice in nationwide mass ac-

tions is precisely why the Court should grant the

writ. Plaintiffs’ counsel use California’s lenient

relatedness rule to shop claims that have no connec-

tion to the State, seeking what they believe are juries

more likely to return significant verdicts. See Pet.

32; PLAC Br. 23-24; Chamber Br. 18-19; GSK Br. 9,

16-17.

Respondents similarly overstate (at 18) the concern

that no one court will be able to adjudicate a mass

action involving plaintiffs from multiple States.

Plaintiffs can all file where the defendant is incorpo-

rated or headquartered. See Daimler, 134 S. Ct. at

12

760 (recognizing that these locations afford “at least

one clear and certain forum in which a corporate

defendant may be sued on any and all claims”).

Plaintiffs also may be able to sue in the State in

which their product was designed or manufactured,

depending on the nature of their claims and the

defendant’s manufacturing and design processes.

See Goodyear, 564 U.S. at 919. And in the federal

system, in appropriate cases, the multidistrict-

litigation device allows cases to be coordinated for

pre-trial purposes before being sent back to appro-

priate forums for trial. See PhRMA Br. 13-14. In

fact, respondents could have filed in federal court

and had their suits coordinated as part of the ongo-

ing multidistrict litigation taking place in New

Jersey. See Transfer Order, Jn re Plavix Mkitg., Sales

Practices & Prods. Liab. Litig., No. 2418 (J.P.M.L.

Feb. 12, 2013).

3. Respondents end with the curious claim that

this case is a poor vehicle because Bristol-Myers

conceded below the third, reasonableness prong of

specific jurisdiction. Br. in Opp. 18-19. But that

makes this case a cleaner vehicle: The correctness of

the California Supreme Court’s decision rests entire-

ly on the relatedness standard this Court will an-

nounce.

Respondents’ true argument appears to be that

notions of predictability and fairness can only be

considered as part of specific jurisdiction’s reasona-

bleness prong. See id. at 19-20. This Court, howev-

er, has always crafted jurisdictional rules in light of

“the demands of reason and coherence” and “sound

judicial policy.” Merrill Lynch, Pierce, Fenner &

Smith Inc. v. Manning, 136 S. Ct. 1562, 1579 (2016)

13

(internal quotation marks omitted). Personal juris-

diction is no different. See, e.g., Daimler, 134 S. Ct.

at 760 (principal place of business and state of incor-

poration are the paradigm places for general juris-

diction because they “have the virtue of being unique

* * * as well as easily ascertainable”); see also Hertz

Corp. v. Friend, 559 U.S. 77, 94 (2010) (“Simple

jurisdictional rules * * * promote greater predictabil-

ity.”).

CONCLUSION

The petition should be granted.

Respectfully submitted,

ANAND AGNESHWAR NEAL KUMAR KATYAL

ARNOLD & PORTER LLP Counsel of Record

399 Park Avenue JESSICA L. ELLSWORTH

New York, N.Y. 10022 FREDERICK LIU

SEAN MAROTTA

DANIEL S. PARISER MITCHELL P. REICH*

ARNOLD & PORTER LLP HOGAN LOVELLS US LLP

601 Massachusetts 555 Thirteenth Street, N.W.

Avenue, N.W. Washington, D.C. 20004

Washington, D.C. 20001 (202) 637-5600

neal.katyal@hoganlovells.com

* Admitted only in New York;

supervised by members of the firm.

Counsel for Petitioner

DECEMBER 2016