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

FILED

APR ~ 7 2017

OF THE CLES:

IN THE

Supreme Court of the United

BRISTOL-MYERS SQUIBB COMPANY,

Petitioner,

SUPERIOR COURT OF CALIFORNIA

For THE COUNTY OF SAN FRANCISCO, et al..

Respondent.

On Writ of Certiorari

to the California Supreme Court

BRIEF OF AMICI CURIAE CIVIL

PROCEDURE PROFESSORS IN SUPPORT OF

RESPONDENTS

Andrew D. Bradt Pamela K. Bookman

UNIVERSITY OF Counsel of Record

CALIFORNIA, BERKELEY

SCHOOL OF LAW TEMPLE UNIVERSITY

BOALT HALL BEASLEY SCHOOL OF LAW

1719 North Broad Street

Zachary D. Clopton Philadelphia,

CORNELL LAW SCHOOL Pennsylvania 19122

Maggie Gardner (215) 204-8983

HARVARD LAW SCHOOL

pamela. bookman@temple.

D. Theodore Rave edu

UNIVERSITY OF HOUSTON

LAW CENTER

SS ee

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

TABLE OF CONTENTS

ee IT II cocci ct das bd kslentwdecnnsvenstenncniiceats '

Pe CO POEs FE Birnie sci n cseenencansnsscanvecsnes ili

INTEREST OF AMICI CURIAE ............. sisiditatnciaindneten 1

SUMMARY OF ARGUMENT..............................4 eae 1

PST RY ESS AR CASRIE Tey te era ele ee ee ee Ee 4

|. Petitioner’s Proposed Causation Rule Is

In dd amtaeceaeies 4

A. Flexibility is integral to specific

RN iain cliidaaciaaheilibinceakincecedexsuiconcs ae

B. There is no causation requirement. ............. 10

Il. Petitioner's Proposed Causation Rule Would

Be Disruptive In Both Simple And Complex

IIL 1540s coe tinlicccceileneeorendlinaaidiegadediiedmmemamabadeeubien 12

A. Petitioner's Proposed Causation Rule

Does Not Ensure Predictability Or

Administrability In Personal Jurisdiction...13

B. Even In Seemingly Simple Cases,

Petitioner's Proposed Causation Rule

Would Be Disruptive, Inefficient, And

SOIT Giaitsaashscdiacctaha Uaeuadetcaitvnmiuictaassbieeds nities 14

C. Petitioner’s Proposed Causation Rule

Would Wreak Even Greater Havoc In

I eS citi cicsutlacidediminiinapbioneendness 18

D. Multidistrict Litigation Does Not Solve

The Problems Petitioner’s Proposed

Causation Rule Would Create. ..................... 24

il

II]. Petitioner’s Proposed Causation Rule Is

Unnecessary Because Numerous Doctrines

Beyond “Minimum Contacts” Already Protect

Defendants From State-Court Unfairness ......... 28

A. The “Reasonableness” Requirement And

The Forum Non Conveniens Doctrine

Provide A Check Against Prohibitively

ng cascsvenséwnens 28

B. Other Doctrines Also Check Extravagant

Exercises Of State-Court Power................... 31

1. Limitations On State Choice Of Law

Protect Defendants From Overly

Aggressive Assertions Of State Power...31

2. Congress Is Best Situated To Address

Bias Against Out-Of-State Corporate

EERIE SSG aot rons eee 33

IIE Toda dcaniicticindtnddodedictshicsahontiaigtelanaesnineembbatatirete 35

TABLE OF AUTHORITIES

Cases

Allstate Ins. Co. v. Hague,

BOD UBS. BOB CIDBI).......cccccccccccccsccccosccccouccccceccocess 9, 32

Asahi Metal Indus. Co. v. Cal. Superior Court,

I css cisctusisrunimiipenoeisaidasssessens 20, 30

Baltimore Football Club, Inc. v. Superior Court,

171 Cal. App. 3d 352 (Cal. Ct. App. 1985)............. 31

Blue Shield of Virginia v. McCready,

Se ee Si irckcatnvcieesatncensasscoacesoscsosssesenncsss 13

Burger King Corp. v. Rudzewicz, 471 U.S. 462

No iu cecilteddebbias passim

Calder v. Jones, 465 U.S. 783 (1984)..........0.0...00008 6, 12

Castro v. Budget Rent-A-Car Sys., Inc.,

65 Cal. Rptr. 3d 430 (Cal. Ct. App. 2007).............. 33

Daimler AG v. Bauman,

BO Ge, Fe a ccsevcinccsnssccncsscecsocecess 7,9, 10, 19

David v. Medtronic, Inc., 188 Cal. Rptr. 3d 103

Ny UR oh sicridsicassenabaieancactendabiovensts 31

Edwards v. Erie Coach Lines Co.,

PTE. G BI TIE, TBE DD nviccecscccnccsecsccccovccces.coce 17

Ferens v. John Deere Co., 494 U.S. 516 (1990)........... 9

Freeman v. Blue Ridge Paper Prods., Inc.,

551 F.3d 405 (6th Cir. 2008) .0........c:cccccccceeesseeseeees 24

Goodyear Dunlop Tires Operations, S.A. v.

Brown, 564 U.S. 915 (2011)..0....000 cee. 7, 9, 10

Hanson v. Denckla, 357 U.S. 235 (1958)......... 5, 10, 12

Helicopteros Nacionales de Colombia, S.A. v.

Halli,

rs I asi cecccisatcetctccsderctcsancsans 9, 10, 12

iv

In re Actos Prods. Liability Litig.,

840 F. Supp. 2d 1356 (J.P.M.L. 2011)..............00.... 27

In re FMC Corp. Patent Litig., 422 F. Supp.

BG SE a ie Bee ices siccnsepceeuibendacibdnbitiogeiastinasae 26

In re Pella Corp. Architect & Designer Series

Windows Mktg., Sales Practices, & Prods.

Liab. Litig.,

996 F. Supp. 2d 1380 (J.P.M.L. 2014).............000005. 26

In re Takata Airbag Prods. Liab. Litig.,

84 F. Supp. 3d 1371 (J.P.M.L. 2015)........0.....00.0002. 26

In re Volkswagen “Clean Diesel” Mktg., Sales

Practices, & Prods. Liab. Litig.,

148 F. Supp. 3d 1367 (J.P.M.L. 2014).......... 3, 20, 27

International Shoe Co. v. Washington,

ge BL a MeM Se, eS passim

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

gE |, RRR ea RUN passim

Jones v. Flowers, 547 U.S. 220 (2006)...............00.0000- 34

Keeton v. Hustler Magazine, Inc.,

Ae 0 Fe i iiericciticeinscsasnntennadicaiers 6, 8, 11, 32

Kulko v. Cal. Superior Court,

Oe es re iaiiiak ia nicicniniensiten eae aeanas 5, 10

Lexecon Inc. v. Milberg Weiss Bershad Hynes &

Lerach, 523 U.S. 26 (1998) ..............ccccccccesssesseeceeees 25

Marple v. T-Mobile Central LLC,

639 F.3d 1109 (8th Cir. 2011) 20.002... ececeeee eee 24

McBride v. CSX Transp., Inc.,

698 F.3d 388 (7th Cir. 2010) ................sccsssscsssssere 13

McCann v. Foster Wheeler LLC,

, fe ff SRT er EEN? > 33

Vv

Middlesex Cnty. Ethics Comm. v. Garden State

Bar Ass'n, 457 U.S. 423 (1982)................0000000.0c0000. 34

Mondou v. New York, New Haven & Hartford

I, as scenanscessncccseoeoesene 34

Offshore Rental Co. v. Cont’l Oil Co.,

a 33

Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co..,

i scavepvsnee cotveccconees 20

Palsgraf v. Long Island R. Co.,

en a s sesnaseonnnsenson 13

Phillips Petroleum Co. v. Shutts,

SS 8, 32

Rush v. Savchuk, 444 U.S. 320 (1980) ........0000000000.... 10

Shaffer v. Heitner, 433 U.S. 186 (1977) .................. 5, 6

State Farm Mut. Auto. Ins. Co. v. Campbell,

a ccuctetunenetuens 35

Sumner v. Mata, 449 U.S. 539 (1981) 0.0.0... 34

Walden v. Fiore, 134 S. Ct. 1115 (2014) 000000000... 10, 12

World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286 (1980)................ pramenunmis 3, 12, 15, 18

Statutes

15 U.S.C. § 1681

(Fair Credit Reporting Act) ...........000.000.60ccccccseceeeee 21

15 U.S.C. § 22

os EEE 20

15 U.S.C. § 78aa(a)

(Securities Exchange Act) ...........0.0.c.0-.ccceceeeeeceeeeees 20

15 U.S.C. §§ 1051—1127

ST IRE SR 21

vl

15 U.S.C. §§ 1692—1692p

(Fair Debt Collection Practices Act) ................. 21

15 U.S.C. § 2301 et seq.

(Magnuson-Moss Warranty Act)........................... 21

18 U.S.C. § 1961 et seq.

I 21, 20, 22

18 U.S.C. § 2334

(Antiterrorism Act) ....0..0.00....cccccecccoccceeeeeeeececceee cs. 20

28 U.S.C. § 1407 cece. INN PAS EI Ms A 24

29 U.S.C. § 1132(e)(2)

NN a 2 Rg ue! Ao 20

29 U.S.C. §§ 201-219

(Fair Labor Standards Act)................................. 21

29 U.S.C. §§ 2601-2654

(Family Medical Leave Act) ..........00occeccccccecce-s ee. 21

31 U.S.C. § 3732(a)

SN ier ae OU eney 20

42 U.S.C. § 2000e et seq.

(Title VII of the Civil Rights Act of 1964).............. 21

42 U.S.C. §§ 12101-12213

(Americans with Disabilities Act)... ....... 21

CAL. CODE CIV. PROC. § 361.00..........cccccccecccceeceeeece--e.n. 33

CAL. CODE CIV. PROC. § 410.30(a) 0.......coccccccccccccccceeeee 30

Class Action Fairness Act of 2005 (CAFA),

Pub. L. 109-2, 119 Stat. 4 (2005)...................... 23, 24

Other Authorities

15 CHARLES ALAN WRIGHT ET AL., FEDERAL

PRACTICE AND PROCEDURE (4th ed. 2017)... 25

4A CHARLES ALAN WRIGHT ET AL., FEDERAL

PRACTICE AND PROCEDURE (4th ed. 2017)... 22

vi

Brief of the United States as Amicus Curiae,

BSNF Railway Co. v. Tyrrell, No. 16-405

(argument scheduled April 2017) .......................

Class Action Fairness Act of 2005, S. Rep. 109-

RS NSN aS

John G. Heyburn II, A View from the Panel:

Part of the Solution, 82 TUL. L. REv. 2225

oe asesdecopunisiaiaascaorisitaadtdipisithnelisiibieetnsceSécnchicseniiiicy

Mary Twitchell, The Myth of General

Jurisdiction,

101 HARV. L. REV. 610 (1988) .....0000.2.... cece eee.

Parliament and Council Regulation 1215/2012,

Tass eR eae

Restatement (Second) of Judgments (1982)..........

ROBERT C. CASAD & LAURA J. HINES,

JURISDICTION AND FORUM SELECTION § 2:25

er) 7

W. PAGE KEETON ET AL., PROSSER AND KEETON

ON THE LAW OF TorTs (5th ed.1984).......

1

INTEREST OF AMICI CURIAE

Amici curiae are law professors and legal

scholars with expertise in the areas of civil

procedure, complex litigation, conflict of laws, and

transnational litigation. Amici have an interest in the

proper interpretation of the constitutional

restrictions on personal jurisdiction and their effect

on civil adjudication. Amici believe that this Court’s

well-established principles confirm that California

courts may permissibly exercise jurisdiction in this

case.!

SUMMARY OF ARGUMENT

Petitioner Bristol-Myers Squibb argues that

specific personal jurisdiction “exists only where the

defendant's contacts with the forum caused the

plaintiffs alleged injuries and the resulting suit.”

Pet. Br. 17 (emphasis added). This has never been

the law. While general jurisdiction may be amenable

to narrowly defined categories, specific jurisdiction is

not. Ever since this Court’s pathmarking decision in

International Shoe Co. v. Washington, specific

| All parties have submitted letters granting blanket

consent to amicus curiae briefs. No counsel for a party authored

this brief in whole or in part, and no counsel or party made a

monetary contribution intended to fund the preparation or

submission of this brief. The law schools employing amici

provide financial support for activities related to faculty

members’ research and scholarship, which helped defray the

costs in preparing this brief. Otherwise, no person or entity has

made a monetary contribution intended to fund the preparation

or submission of this brief.

2

jurisdiction has been a far more flexible inquiry into

the relationship among the forum, the defendant, and

the dispute. This is as it should be. Requiring that

specific jurisdiction rest on a strict causal link

between the defendant’s forum-state contacts and the

plaintiffs claims provides no new benefits. Yet it

would create uncertainty, risk destabilizing the

system of litigation in both state and federal courts,

and cast doubt on several of this Court’s earlier

personal jurisdiction decisions.

The current law, as established by this Court, is

well calibrated both to ensure an appropriate forum

for lawsuits and to prevent unfairness to defendants.

To affirm the decision of the California Supreme

Court in this case, the Court need only hold that

Petitioner has purposefully availed itself of the

privilege of conducting activities in California (which

no one disputes), Respondents’ claims relate to

Petitioner's California contacts (which is barely, if at

all, disputed), and California’s assertion of

jurisdiction is reasonable (which Petitioner has

effectively conceded (Pet. App. 35a)). No more need

be said.

The purpose of this brief is to explain why

Petitioner's proposed causation rule is ahistorical,

inconsistent with the principles of personal

jurisdiction, potentially destabilizing, and

unnecessary to protect defendants from abusive

exercises of state power. In short, this Court should

decline to adopt Petitioner's proposal and should

leave the law on specific jurisdiction unchanged for

three reasons.

3

First, this Court has never relied on a causation

requirement to endorse—or reject—a state’s exercise

of personal jurisdiction over a defendant. In fact, for

this Court to do so would be inconsistent with a

number of cases in which this Court found—or all

involved assumed—that there was _ personal

jurisdiction over claims against the defendant that

were not caused by its forum-state contacts.

Second, changing course now by adopting a

causation requirement would lead to disruptive,

inefficient, and unfair results—in both simple and

complex litigation, and in both state and federal

courts. A new causation test would throw into doubt

even chestnuts of the first-year jurisdictional

curriculum, like World-Wide Volkswagen v. Woodson.

And it could wreak havoc with the way courts resolve

our most complicated and economically important

disputes, like the extensive litigation arising out of

the ongoing Volkswagen “Clean Diese!” scandal.

Third, it is unnecessary to take that risk in order

to protect defendants from litigating in an unfair

forum. Indeed, in this case, Petitioner has not even

argued that California is an unfair place to litigate.

To the extent that Petitioner’s concern is being haled

into an inconvenient or distant forum, those concerns

are already addressed in this Court's requirement

that any exercise of personal jurisdiction be

reasonable. And in cases where another court is

manifestly more appropriate, defendants may move

to transfer the case or dismiss on forum non

conveniens grounds. To the extent that Petitioner’s

concerns relate to the law a court applies, such

concerns are covered by each state’s choice-of-law

4

rules and the constitutional restrictions on those

rules. To the extent that Petitioner’s concerns relate

to a_ state’s hostility towards out-of-state

corporations, such concerns are addressed by

diversity jurisdiction. Remedies for any such bias are

therefore best left to Congress in defining the right to

remove and the subject-matter jurisdiction of the

federal courts. Finally, to the extent that Petitioner's

concerns are that the cases are being litigated

against it at all—as Petitioner candidly admitted

before the Court of Appeal*—those concerns are not

covered by the Due Process Clause.

ARGUMENT

I. Petitioner’s Proposed Causation Rule Is

Unprecedented.

Ever since [nternational Shoe Co. v. Washington,

326 U.S. 310 (1945), this Court has emphasized the

need to retain flexibility in the law of personal

jurisdiction, including in the minimum-contacts

inquiry for specific jurisdiction. The Court has never

suggested the strict causation requirement Petitioner

seeks here. Indeed, such a requirement would be

inconsistent with this Court’s longstanding approach

to personal jurisdiction.

2 Oral Argument at 23:18, Bristol-Myers Squibb Co. v.

Superior Ct., 175 Cal. Rptr. 3d 412 (Cal. Ct. App. 2014).

5

A. Flexibility Is Integral To Specific

Jurisdiction.

As International Shoe explained, the personal

jurisdiction inquiry “cannot be simply mechanical or

quantitative.” Jd. at 319. Since that decision in 1945,

flexibility has been the hallmark of this Court’s

specific personal jurisdiction jurisprudence. The

Court’s regular endorsements of this flexibility have

been as colorful as they are numerous. See, e.g.,

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 485

(1985) (“[We] reject any talismanic jurisdictional

formulas|[.]”); id. at 486 (“[Tlhe Due Process Clause

allows flexibility in ensuring that commercial actors

are not effectively ‘judgment proof for the

consequences of obligations they voluntarily assume

in other States|[.]”); Kulko v. Cal. Superior Court, 436

U.S. 84, 92 (1978) (“[T]he ‘minimum contacts’ test of

International Shoe is not susceptible of mechanical

application; rather, the facts of each case must be

weighed to determine whether the _ requisite

‘affiliating circumstances’ are present. . .. We

recognize that this determination is one in which few

answers will be written ‘in black and white. The

greys are dominant, and even among them the

shades are innumerable.”); Shaffer v. Heitner, 433

U.S. 186, 204 (1977) (“Mechanical or quantitative

evaluations of the defendant’s activities in the forum

could not resolve the question of reasonableness|.]”);

Hanson v. Denckla, 357 U.S. 235, 251 (1958) (“[T]he

requirements for personal jurisdiction over

nonresidents have evolved from the rigid rule of

Pennoyer v. Neff... to the flexible standard of

International Shoe Co. v. State of Washington.”).

6

When evaluating “the relationship among the

defendant, the forum, and the litigation,” Shaffer,

433 U.S. at 204, this Court has considered a wide

variety of contacts with different relationships to the

case at hand, none of which is dispositive. That

flexibility has allowed the Court to consider factors

such as:

* The plaintiffs contacts with the forum state,

see Calder v. Jones, 465 U.S. 783, 788 (1984)

(noting that plaintiffs contacts “may be so

manifold as to permit jurisdiction when it

would not exist in their absence”);

* The suit’s connections to other states, see

Keeton v. Hustler Magazine, Inc., 465 U.S.

770, 775 (1984) (“[Ilt is certainly relevant to

the jurisdictional inquiry that petitioner is

seeking to recover damages suffered in all

States in this one suit.” (emphasis omitted));

* The forum state’s interests in third-party

citizens and interstate relations, see id. at

777-78 (“[T]he combination of New

Hampsnire’s interest in redressing injuries

that occur within the State and its interest in

cooperating with other States in the

application of the ‘single publication rule’

demonstrate the propriety of requiring

respondent to answer to a multistate libel

action in New Hampshire.”);

* Market conditions, see J. McIntyre Mach.,

Ltd. v. Nicastro, 564 U.S. 873, 885 (2011)

(plurality) (noting that courts may consider

“(tlhe defendant’s conduct and the economic

7

realities of the market the defendant seeks to

serve”);

¢ And other unanticipated factors, see, e.g., id.

at 891-92 (Breyer, J., concurring in the

judgment) (surveying other potential

complications if “what has previously been

this Court’s less absolute approach” were

replaced with a “more absolute rule”).

This flexibility has allowed the courts to

determine the limits and “clarify the contours of”

personal jurisdiction through deliberate, case-by-case

‘judicial exposition” in “common-law fashion.”

Nicastro, 564 U.S. at 885 (plurality); see also id. at

891-92 (Breyer, J., concurring). That gradual

approach to defining the outer bounds of states’

power within our constitutional system is critical for

avoiding unintended and potentially significant

disruptions of state and federal adjudication.

Indeed, the Court relied on the flexibility of the

specific-jurisdiction inquiry when it clarified in

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

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

S. Ct. 746 (2014), that general jurisdiction is limited

to those forums where the defendant is essentially “at

home.” See Daimler, 134 S. Ct. at 758 n.9 (“[Wle do

not need to justify broad exercises of [general]

jurisdiction unless our interpretation of the scope of

specific jurisdiction unreasonably limits state

authority over nonresident defendants.” (quoting

Mary Twitchell, The Myth of General Jurisdiction,

101 Harv. L. REV. 610, 676 (1988)). Adopting

Petitioner's strict causation requirement for specific

8

jurisdiction on top of these more rigid rules of general

jurisdiction would abandon the flexibility that has

characterized the law of personal jurisdiction since

International Shoe. See, e.g. id. at 757-58

(“[Gleneral and specific jurisdiction have followed

markedly different trajectories post-/nternational

Shoe. Specific jurisdiction has been cut loose from

Pennoyers sway, but we have declined to stretch

general jurisdiction beyond limits traditionally

recognized.”).

The recent shift in the law of general jurisdiction

also affects the lessons that can be drawn from the

history of specific jurisdiction. Petitioner argues that

this Court has looked for a causal nexus when

assessing the existence of jurisdiction in every

specific-jurisdiction case since International Shoe.

Pet. Br. 11. Even if that were correct (which it is not,

see Keeton, 465 U.S. at 775—76, 780), the claim is

misleading: For seventy years, cases that might have

presented this question were treated as

uncontroversial exercises of personal jurisdiction.

For example, the defendant in Phillips Petroleum Co.

v. Shutts, 472 U.S. 797 (1985), objected to a Kansas

state court's jurisdiction over out-of-state class

plaintiffs. But the Kansas court’s personal

jurisdiction over the defendant (a Delaware

corporation with its principal place of business in

Oklahoma) was uncontroversial, even though the

named plaintiffs’ claims (based on gas leases they

owned in Oklahoma and Texas) did not have any

causal connection to the defendant's natural-gas

operations in Kansas. Jd. at 799-801. Moreover,

many cases assumed the existence of general

jurisdiction under a “doing business” theory without

9

considering whether’ specific jurisdiction was

available. See, e.g., Allstate Ins. Co. v. Hague, 449

U.S. 302, 317 & n.23 (1981) (noting that personal

jurisdiction was “unquestioned” where defendant was

“at all times present and doing business in” the

forum state); Ferens v. John Deere Co., 494 U.S. 516,

519-20 (1990) (noting parties’ agreement that

defendant “was a corporate resident” of the forum

state); see also Helicopteros Nacionales de Colombia,

S.A. v. Hall, 466 U.S. 408, 415-16 & n.10 (1984)

(considering only whether the defendant’s contacts

with Texas gave rise to general jurisdiction).

This is not to suggest that there should have

been personal jurisdiction in every one of these cases

or that merely “doing business” is an appropriate

basis for personal jurisdiction. Rather, the point is

that this Court cannot assess the effect of introducing

a causation requirement by considering only cases

that have been labeled as exercises of “specific

jurisdiction,” because many cases that were

uncontroversial exercises of general jurisdiction

before Goodyear and Daimler would be candidates

only for specific jurisdiction today.? As Petitioner has

noted, this Court has never heard a case that

required it to define clearly the scope of “arises out of

3 Petitioner conceded this point before the California Court

of Appeal. Oral Argument 27:24, Bristol-Myers Squibb Co. v.

Superior Ct., 175 Cal. Rptr. 3d 412 (Cal. Ct. App. 2014).

(“[T]hese kindls] of specific jurisdiction arguments have not

been filed because jurisdiction historically pre-Daimiler has

always been upheld based on general jurisdiction when you

have a company that sells product nationwide and does

significant business anywhere.”).

10

or relates to,” Cert. Pet. 10, in the context of specific

jurisdiction. The absence of such a case should not

itself suggest an answer to the question that the

Court has repeatedly avoided answering, particularly

given the wide variety of cases in which personal

jurisdiction has either been found or assumed to exist

under International Shoe, often without specifying

whether that personal jurisdiction should be

categorized as general or specific.

B. There Is No Causation Requirement.

More notable is what this Court has not said: In

seventy years of modern personal jurisdiction

analysis, this Court has never stated a requirement

that a defendant’s in-state contacts must have caused

the plaintiffs injuries. Instead it has repeated that a

suit must “arise out of or /be/ connected with the

[defendant’s] activities within the state.” Jnt’] Shoe,

326 U.S. at 319 (emphasis added); see also Daimler,

134 S. Ct. at 754; Goodyear, 564 U.S. at 923-24;

Nicastro, 564 U.S. at 881 (plurality); Burger King,

471 U.S. at 472; Helicopteros, 466 U.S. at 414 n.8.’

4 In most of the Court’ opinions regarding specific

jurisdiction that have not mentioned this requirement, the

defendant lacked any purposeful contacts with the forum. In

such a case, there is no need to consider how the defendant's

non-existent contacts might be related to the cause of action.

See, e.g., Walden v. Fiore, 134 S. Ct. 1115, 1124 (2014)

(concluding that the defendant “formed no jurisdictionally

relevant contacts with” the forum state); Rush v. Savchuk, 444

U.S. 320, 332 (1980) (“[T]he defendant has no contacts with the

forum.”); Kulko, 436 U.S. at 94 & n.7; Hanson, 357 U.S. at 251,

253. That is not this case.

ll

By consistently phrasing this standard in the

disjunctive (arise out of or relate to or are connected

with), the Court has retained limited flexibility to

account for cases like Keeton v. Hustler Magazine,

Inc., 465 U.S. 770 (1983), in which this Court

sustained the exercise of personal jurisdiction by “a

state court over claims by [an] out-of-state plaintiffl]

alleging out-of-state injuries from acts committed

outside the forum State.” U.S. Br. 15. In Keeton,

New Hampshire lacked general jurisdiction over

Hustler, an Ohio corporation with its principal place

of business in California, see 465 U.S. at 779, but

Hustler’s regular business in New Hampshire was

nonetheless “sufficient to support [specific]

jurisdiction lover injuries sustained in other states]

when the cause of action arises out of the very

activity being conducted, in part, in New

Hampshire,” id. at 780 (emphasis added).

Petitioner's proposed causation rule is inconsistent

with the analysis in Keeton. See also Resp. Br. 24—

27.

At the same time, just because this analysis has

remained flexible does not mean that it is

unpredictable. Compare Pet. Br. 27-30. For one

thing, this Court has expressly incorporated

predictability into the minimum-contacts inquiry.

Specific jurisdiction requires that “the defendant’s

conduct and connection with the forum State are

such that he should reasonably anticipate being

haled into court there.” World-Wide Volkswagen, 444

U.S. at 297; accord Calder, 465 U.S. at 790; Burger

King, 471 U.S. at 474. Similarly, this Court has

required that the defendant “purposefully avails”

itself of the forum state, Burger King, 471 U.S. at 475

12

(quoting Hanson, 357 U.S. at 253); Nicastro, 564 U.S.

at 877, 88-91 (plurality), and has declined to find

jurisdiction based on ‘random, fortuitous, or

attenuated contacts,” Walden v. Fiore, 134 S. Ct.

1115, 1123 (2014), or the “unilateral activity of

another party or a third person,” Helicopteros, 466

U.S. at 417; accord Walden, 134 S. Ct. at 1123:

Burger King, 471 U.S. at 475. This requirement of

purposeful contacts with a forum that also relate to

the cause of action—even without a strict causation

requirement—ensures a defendant will have “clear

notice that it is subject to suit there” and allow it “to

alleviate the risk of burdensome litigation by

procuring insurance, passing the expected costs on to

customers, or, if the risks are too great, severing its

connection with the State.” World-Wide Volkswagen,

444 US. at 297.

It was, of course, entirely predictable that

plaintiffs who claim to be injured by Plavix would sue

Petitioner in California—the state in which it sold

over 180 million Plavix pills from 2006-2012. Pet.

App. 4a—5a. As the California Supreme Court

explained, “[o]n the basis of [its] extensive contacts

relating to the design, marketing, and distribution of

Plavix, BMS would be on clear notice that it is

subject to suit in California concerning such

matters.” Pet. App. 25a.

Il. Petitioner’s Proposed Causation Rule

Would Be Disruptive In Both Simple And

Complex Litigation.

Petitioner's proposed causation rule would not

just be novel and unprecedented. It would be deeply

13

unsettling to accepted practice in both simple and

complex cases, in both state and federal courts.

Upending the law as Petitioner urges would cause

litigation about jurisdiction to proliferate regarding

the cascade of new questions spawned by Petitioner's

aew rule. These complications, moreover, do nothing

to further the values of federalism, predictability, and

fairness that have driven this Court's specific

jurisdiction jurisprudence.

A. Petitioner’s Proposed Causation Rule

Does Not Ensure Predictability Or

Administrability In Personal

Jurisdiction.

Petitioner suggests that a causation test—in

particular a proximate-cause requirement—“ensures

predictability and administrability.” Pet. Br. 13.

Petitioner is wrong. Any first-year law student can

attest to the difficulty of defining “proximate cause.”

See, e.g., Palsgraf v. Long Island R. Co., 162 N.E. 99

(N.Y. 1928). As the courts have noted in other

contexts, “the principle of proximate cause is hardly a

rigorous analytic tool.” Blue Shield of Virginia v.

McCready, 457 U.S. 465, 478 n.13 (1982); see also id.

at 478 (referring to the concept of proximate cause as

“elusive”); McBride v. CSX Transp., Inc., 598 F.3d

388, 393 n.3 (7th Cir. 2010), affd, 564 U.S. 685 (2011)

(“The term ‘proximate cause’ does not easily lend

itself to definition.”); W. PAGE KEETON ET AL.,

PROSSER AND KEETON ON THE LAW OF TORTS § 41 at

263 (5th ed.1984) (“There is perhaps nothing in the

entire field of law which has called forth more

disagreement, or upon which the opinions are in such

a welter of confusion [as defining ‘proximate cause’).

14

Nor, despite the manifold attempts which have been

made to clarify the subject, is there yet any general

agreement as to the best approach.” (footnote

omitted)). To import such a problematic standard to

the law of personal jurisdiction would serve only to

complicate matters further.

Even Petitioners description of this case

highlights the challenges of a causation inquiry—

proximate or otherwise. In the first paragraph of its

Introduction, Petitioner's Brief describes what

Bristol-Myers did not do: “It is undisputed that

Bristol-Myers did not develop or manufacture Plavix

in California; that the drug was not marketed,

promoted, or distributed to respondents in California:

and that respondents did not receive or fill their

prescriptions, ingest the drug, or suffer any injuries

in California.” Pet. Br. 1. But Petitioner does not

explain which of these nine activities would

constitute causation—whether proximate or but-for—

if it had in fact occurred in California. Determining

which, if any, of these connections with a state is

sufficiently causally connected to plaintiffs’ injuries

to justify personal jurisdiction would have to be

hashed out in the lower courts over the coming years.

B. Even In Seemingly Simple Cases,

Petitioner’s Proposed Causation Rule

Would Be Disruptive, Inefficient, And

Unfair.

The lack of clarity and administrability that

Petitioner's rule would generate is just the tip of the

iceberg. Even in currently uncontroversial and

simple cases, Petitioner's proposed causation rule

15

would mark a major departure from settled personal

jurisdiction doctrine and would lead to disruptive,

inefficient, and unfair results.

Consider the facts of World-Wide Volkswagen

Corp. v. Woodson, 444 U.S. 286 (1980). In that case,

the Robinson family was injured when the gas tank

of their Audi exploded in a crash on an Oklahoma

highway. The Robinsons sued Audi along with the

importer, the wholesaler, and the dealer, alleging

that the car had been defectively designed. The

Court held that the Oklahoma courts lacked personal

jurisdiction over the New York-based dealership

where the Robinsons had bought the car and the

regional wholesaler that sold the car to the

dealership because they had not purposefully availed

themselves of the privilege of conducting activities in

Oklahoma. But “an objection to jurisdiction by the

manufacturer [Audi] or national distributor

[Volkswagen] would have been unavailing.” J.

McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 907

(2011) (Ginsburg, J., dissenting) (describing World-

Wide Volkswagen). Indeed, the Court in World-Wide

Volkswagen explained, “if the sale of a product of a

manufacturer or distributor such as Audi or

Volkswagen is not simply an isolated occurrence, but

arises from the efforts of the manufacturer or

distributor to serve, directly or indirectly, the market

for its product in other States, it is not unreasonable

to subject it to suit in one of those States if its

allegedly defective merchandise has there been the

source of injury to its owner or to others.” 444 U.S. at

297.

16

Under Petitioner's proposed rule, however,

Oklahoma may lack specific jurisdiction over the

manufacturer, Audi, for injuries resulting from the

explosion of the Robinsons’ Audi in Oklahoma.

Audi’s marketing and sale of thousands of identical

cars in Oklahoma would be neither a “but-for” nor

“proximate” cause of the Robinsons’ injuries. After

all, they bought their Audi in New York. Indeed, the

Robinsons’ claims would be “exactly the same” if Audi

had “no contacts” with Oklahoma at all, which

Petitioner contends “alone is dispositive” of the

jurisdictional question. Pet. Br. 47.

Petitioner's proposed causation rule goes even

further. Imagine that the driver of the car that

collided with the Robinsons, an Oklahoma resident

with no out-of-state contacts, was also injured by the

explosion. Petitioner's causation rule would also

prohibit the Oklahoma driver from suing Audi in the

Oklahoma courts because the particular product that

caused his injury was brought into the state by a

third party—the Robinsons. Again, Audi’s purposeful

and extensive marketing of identical products in

Oklahoma would not be the “but for” or “proximate”

cause of the Oklahoma driver’s injuries. See Pet. Br.

47. The same no-jurisdiction result would obtain

under Petitioner’s test even if Audi conceded that

personal jurisdiction would be reasonable in

Oklahoma and even if Audi was subject to an ongoing

suit in Oklahoma for the exact same defect.

This result makes little sense given the policies

that Petitioner acknowledges underlie specific

jurisdiction—“federalism, predictability, and

fairness.” Pet. Br. 17. There is no reason to think

17

that New York, where Audi sold the particular car

that caused the injury, has any greater interest than

Oklahoma in adjudicating the dispute between the

Oklahoma driver and the car manufacturer that

purposefully sold thousands of identical cars in

Oklahoma. Indeed, a New York court would probably

apply Oklahoma law to such a dispute. See, e.g.,

Edwards v. Erie Coach Lines Co., 952 N.E.2d 1033,

1037 (N.Y. 2011). Oklahoma would not “tread on”

New York’s “domain” in any meaningful sense by

entertaining such a suit. Contra Pet. Br. 27 (quoting

Nicastro, 564 U.S. at 899 (Ginsburg, J., dissenting)).

Nor is a product liability suit in Oklahoma in any

way unpredictable for Audi, given its extensive

marketing of identical products in Oklahoma. No

strict causal test is meeded for a_ product

manufacturer to be able to predict that it may be

subject to suit for product defects in a state where it

purposefully avails itself of the privilege of

extensively marketing the allegedly defective

product. For the same reason, a strict causal test is

not necessary to ensure “fai'ness”; indeed, as this

example illustrates, it can just as easily lead to

unfairness—closing the doors to the Oklahoma courts

to an Oklahoma plaintiff filing suit for injuries

suffered in Oklahoma against a_ product

manufacturer that purposefully avails itself of the

privilege of selling those products in Oklahoma.

The problems with a _ strict causation rule

multiply when joinder rules are taken into account.

Assume that the Robinsons sued the Oklahoma

driver for their injuries in state or federal court in

Oklahoma—the only state likely to have personal

jurisdiction over the driver. And assume that the

18

driver wanted to implead Audi for contribution,

claiming that the collision would have been a fender

bender if the gas tank had not been defective.

Petitioner’s proposed causation rule would prevent a

single court from hearing all of these related claims

together and would instead require the Oklahoma

driver to seek contribution from Audi in a separate

suit in New York (where Audi sold this particular car

to the Robinsons) or Germany (where it is

headquartered). To be sure, all of the potential

parties to a dispute cannot always be joined in a

single lawsuit, even if a single suit would be the most

efficient. The bedrock principle is still “fair play and

substantial justice,” which requires purposeful

availment. World-Wide Volkswagen, 444 U.S. at 297;

Int’l Shoe, 326 U.S. at 316. So, for example, in

Nicastro, the plaintiff might not he able to sue both

his New Jersey employer and the _ British

manufacturer of the machine that injured him in the

same suit. But Petitioner’s causation rule needlessly

multiplies the instances where this is so, sacrificing

efficiency without any offsetting benefit in terms of

fairness, predictability, or interstate federalism.

C. Petitioner’s Proposed Causation Rule

Would Wreak Even Greater Havoc In

Complex Litigation.

The inefficient, unfair, and unexpected results of

Petitioner’s proposed causation requirement would

metastasize in the context of complex litigation.

Consider another familiar Volkswagen litigation—the

more recent one arising out of the “clean diesel”

scandal. Volkswagen AG, a German corporation,

admitted to U.S. government authorities that it had

19

rigged its so-called “clean diesel” cars to perform

efficiently under testing conditions, even though the

cars in fact could not pass U.S. environmental

standards. Volkswagen’s fraudulent scheme, which

was conceived in and orchestrated from its German

headquarters, harmed U.S. consumers throughout

the United States. But because Volkswagen AG is

incorporated and headquartered in Germany, it is

unlikely there is general jurisdiction over

Volkswagen anywhere in the United States. See

Daimler AG v. Bauman, 134 S. Ct. 746, 761 (2014);

but cf. id. at 761 n.19.

At a basic level, as suggested above, the

application of Petitioner's causation rule to any

plaintiffs claim against Volkswagen is not clear,

especially because the defendant is a _ foreign

corporation whose sales and marketing targeted the

nationwide market through independent distributors

or other third parties, like local dealerships.

Likewise, if a plaintiff wanted to sue those local

dealerships and either party wanted to join

Volkswagen into that litigation, they would face

challenges under Petitioner’s causation requirement

even if the court would otherwise deem Volkswagen

to be subject to joinder.

The Clean Diesel litigation also demonstrates

how the inefficient, unfair, and unexpected results of

Petitioner's proposed causation requirement extend

to federal claims and federal courts.5 The federal

5 Petitioner and the United States seem to seek refuge in

the proposition that federal courts would have a broader scope

20

of specific personal jurisdiction under the Fifth Amendment

than state courts would have under the Fourteenth

Amendment. This theory depends on a distinction between the

Fifth and Fourteenth Amendments’ due process requirements

that this Court has never defined. See, e.g., Omni Capital Int’,

Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 102 n.5 (1987) (declining

to consider the “constitutional issues raised by this theory”). The

United States hints at its reasoning, however, in its brief in

BSNF Railway Co. v. Tyrrell, No. 16-405, suggesting that

“Congress’s express constitutional power over and special

competence in matters of interstate and foreign commerce .. .

enables Congress, consistent with the Fifth Amendment, to

provide for the exercise of federal judicial power in ways that

have no analogue at the state level.” U.S. Br., Mo. 16-405, at 32.

While this Court may welcome Congress’s guidance on issues

such as the requisite minimum contacts with the United States

that a defendant must have in order for a federal court to

exercise personal jurisdiction over it, that guidance is surely not

dispositive of the due process question, regardless of the extent

of overlap between the Fifth and Fourteenth Amendment due

process inquiries. Cf Asahi Metal Indus. Co. v. Cal. Superior

Court, 480 U.S. 102, 113 n.* (1987) (“We have no occasion here

to determine whether Congress could, consistent with the Due

Process Clause of the Fifth Amendment, authorize federal court

personal jurisdiction over alien defendants based on the

aggregate of national contacts, rather than on the contacts

between the defendant and the State in which the federal court

sits.”).

This question is not briefed in this case, yet adopting

Petitioner’s causation rule without resolving it may draw into

question the constitutionality of significant federal statutes that

depend on nationwide service of process. See, e.g., 15 U.S.C. § 22

(Clayton Act); 15 U.S.C. § 78aa(a) (Securities Exchange Act); 18

U.S.C. § 1965(a) (RICO); 18 U.S.C. § 2334 (Antiterrorism Act);

29 U.S.C. § 1132(e)(2) (ERISA); 31 U.S.C. § 3732(a) (False

Claims Act). Should the Court wish to define the due-process

boundaries of federal-court jurisdiction, we would respectfully

encourage it to do so in a case squarely raising this complex

question, and in which it is fully briefed.

21

court complaints in the Clean Diesel litigation

alleged two principal federal claims: first, under the

Racketeer Influenced and Corrupt Organizations Act,

18 U.S.C. §§ 1961-1968 (RICO), and second, under

the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301

et seq. (MMWA), colloquially known as the federal

“Lemon Law.” Consider first the MMWA claims. The

MMWA does not include any provision for nationwide

service of process, so like most federal statutes,®

personal jurisdiction under the MMWA is defined by

Federal Rule of Civil Procedure 4(k)(1)(A), which

relies, in turn, on the scope of the jurisdictional

power of the state where the federal court sits.

Under Petitioner’s vision of specific jurisdiction, a

litigation involving plaintiffs from different states,

whose injuries were “caused” by Volkswagen's

marketing and sales practices in whichever state

they purchased their cars, would have to be split—

separate actions in each state would be necessary,

and the fact that they would present federal

questions in federal courts would do nothing to fix

this jurisdictional result. The resultant claim

splitting would undermine the regulatory interest

behind the MMWA (and countless other federal

statutes), despite the fact that Volkswagen had

® See, e.g., 15 U.S.C. § 1681 (Fair Credit Reporting Act); 15

U.S.C. §§ 1692—1692p (Fair Debt Collection Practices Act); 29

U.S.C. §§ 201-219 (Fair Labor Standards Act); 29 U.S.C.

§§ 2601-2654 (Family Medical Leave Act); 42 U.S.C. §§ 12101-

12213 (Americans with Disabilities Act): 42 U.S.C. § 2000e et

seq. (Title VII of the Civil Rights Act of 1964); 15 U.S.C. §§

1051—1127 (Lanham Act).

22

ample contacts with many states through its

marketing and sales efforts, and even though it

would be foreseeable and reasonable to hale

Volkswagen into court in those states.

Petitioner's causation requirement might create

problems for the RICO claims as well. Although

RICO includes a provision for nationwide service of

process, 18 U.S.C. § 1965, it is not clear whether

Petitioner's rule would allow plaintiffs bringing

nationwide RICO claims to join their MMWA claims

without establishing in-state causation. A prudent

plaintiff worried about claim preclusion, therefore,

might bring both the MMWA and RICO claims in her

home jurisdiction, thus splitting up nationwide RICO

suits, too.’

In short, Petitioner seems to be advocating

cutting up nationwide lawsuits into 50 separate suits

and dispersing such cases to multiple different states,

regardless of the convenience to the courts or any of

the litigants, including defendants themselves.* In so

7 The concern here is that the Petitioner’s causation rule as

described may interfere with the ability of a plaintiff to join

related claims against the same defendant for which there

would not be independent personal jurisdiction. See

Restatement (Second) of Judgments § 9 (1982); 4A CHARLES

ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE §

1069.7 (4th ed. 2017).

8 The United States suggests that it is unconcerned if

foreign defenda its become harder to sue under Petitioner’s

causation rule because suits against foreign defendants can

have “implications for the United States’ international relations

and trade interests.” U.S. Br. 26. But Volkswagen likely

appreciated the ability to resolve the expansive claims against it

23

doing, Petitioner’s rule would also undermine the

regulatory interests of Congress and the states.

Ironically, this result would conflict with

Petitioner's asserted values and also with Congress's

intent in the Class Action Fairness Act of 2005

(CAFA), Pub. L. 109-2, 119 Stat. 4 (2005). In CAFA

litigation, defendants commonly criticize plaintiffs’

splitting up cases as a deceptive mechanism for

avoiding federal court litigation;® here, Petitioner

seems to be arguing that Due Process requires such

an approach, even while it concedes that California’s

exercise of personal jurisdiction in this case would

as expeditiously as possible in a single jurisdiction. Moreover,

the United States neglects to mention that the laws of other

countries, including the European Union rules it cites, would

likely permit pendent personal jurisdiction over BMS in a case

like this one because co-defendant McKesson is headquartered

in California. Parliament and Council Regulation 1215/2012,

2012 O.J. (L 351) art. 8 (“A person domiciled in a Member State

may also be sued: .. . (1) where he is one of a number of

defendants, in the courts for the place where any one of them is

domiciled, provided the claims are so closely connected that it is

expedient to hear and determine them together to avoid the risk

of irreconcilable judgments’ resulting from separate

proceedings|.]”).

3 Indeed, in this litigation Petitioner first tried to aggregate

claims in order to remove this litigation to federal court. See

Resp. Br. 7-8. Courts are divided on whether plaintiffs may

split claims in ways that avoid federal subject-matter

jurisdiction under CAFA. See, eg, Freeman v. Blue Ridge

Paper Prods., Inc., 551 F.3d 405, 407-09 (6th Cir. 2008)

(forbidding such splitting): Marple v. T-Mobile Central LLC, 639

F.3d 1109, 1110-11 (8th Cir. 2011) (allowing it).

24

comport with the ultimate standard of “fair play and

substantial justice.” Int’] Shoe, 326 U.S. at 316.

D. Multidistrict Litigation Does Not

Solve The Problems Petitioner’s

Proposed Causation Rule Would

Create.

Both the Petitioner's and the Government's briefs

suggest that any complications created by new, more

restrictive limits on state-court jurisdiction are

inconsequential because of the availability of

multidistrict litigation (MDL), 28 U.S.C. § 1407, to

consolidate pretrial proceedings in cases filed

nationwide in a single federal district court. See Pet.

Br. 51; U.S. Br. 30 & 31 n.4. This is incorrect. Not

only could Congress repeal the MDL statute at any

time, but even in its current form, MDL does not

provide a cure-all to the inefficient scattering of

litigation that would be made necessary by a rigid

causation requirement for specific jurisdiction. And

even in MDLs in which remand never occurs,

consolidated pretrial proceedings, which include

dispositive-motion practice, provide none of the

protections to defendants and states thought to be

central to personal jurisdiction doctrine.

First, MDL does not expand the number of

forums in which a plaintiff may file a lawsuit.

Although MDL does provide for transfer of cases

properly filed in district courts to a single court for

consolidated pretrial proceedings, the courts in which

the cases were initially filed must have personal

jurisdiction. 15 CHARLES ALAN WRIGHT ET AL.,

FEDERAL PRACTICE AND PROCEDURE § 3866 (4th ed.

25

2017) (‘A party who is not subject to personal

jurisdiction in the original court cannot be validly

served in the transferee district.”). Moreover, MDL of

course cannot reach cases that fall beyond the federal

courts’ subject-matter jurisdiction—such as the cases

involved here, which are statutorily barred from

removal because of the presence of McKesson, an in-

state defendant. Jd. Finally, as this Court has held,

MDL consolidation is only for pretrial proceedings;

the cases must be remanded to the courts in which

they were filed for trial. Lexecon Inc. v. Milberg

Weiss Bershad Hynes & Lerach, 523 U.S. 26, 40

(1998). MDL therefore does nothing to ensure that

those cases will not disperse across the country once

pretrial proceedings conclude. [n sum, MDL does not

correct for the inefficiencies created by Petitioner's

proposed rule.

Second, Petitioner’s enthusiasm for MDL is

curious given what it cites as the “purposes” of

specific jurisdiction: “federalism, predictability, and

fairness.” Pet. Br. 17. With respect to either

protecting defendants from geographic inconvenience

or safeguarding individual states’ interests in

litigating cases arising from conduct occurring within

their borders, MDL provides almost no protections.

Although cases must be returned to the transferor

districts for trial, during pretrial proceedings the

judge presiding over the MDL has complete power,

including overseeing discovery and dispositive-motion

practice. Because the Judicial Panel on Multidistrict

Litigation (JPML) can establish an MDL in any

federal district, defendants may find themselves

litigating all pretrial procedure in “thousands of

claims brought by thousands of plaintiffs” anywhere

26

in the country. Pet. Br. 50; see also In re FMC Corp.

Patent Litig., 422 F. Supp. 1163, 1165 (@J.P.ML.L.

1976) (“Transfers under Section 1407 are simply not

encumbered by considerations of in personam

jurisdiction and venue.”).

Thus, in mass-tort cases like the litigation here,

the JPML has repeatedly suggested that virtually

any federal district will be acceptable for an MDL.

See, e.g., In re Takata Airbag Prods. Liab. Litig., 84

F. Supp. 3d 1371, 1372 (J.P.M.L. 2015) (“The

litigation is nationwide in scope. ... No one district

stands out as the geographic focal point.”); In re Pella

Corp. Architect & Designer Series Windows Mktzg.,

Sales Practices, & Prods. Liab. Litig., 996 F. Supp. 2d

1380, 1383 (@J.P.M.L. 2014) (“This litigation is

nationwide in scope, and thus almost any district

would be an appropriate forum.”). Moreover, in cases

of nationwide scope, the JPML has often selected

districts having nothing to do with the defendants’

geographic home, instead prioritizing features like

the experience of the transferee judge or docket

conditions in the transferee district. See, e.g., In re

Actos Prods. Liability Litig., 840 F. Supp. 2d 1356,

1356-57 (J.P.M.L. 2011) (“The allegations in this

nationwide litigation do not have a strong connection

to any particular district. . . . [Clentralization in the

Western District of Louisiana permits the Panel to

assign the litigation to an experienced judge who sits

in a district in which no other multidistrict litigation

is pending”). As a former Chairman of the JPML

candidly explained, “location may be less of an

overriding consideration, particularly where the

litigation lacks a singular geographical focal point.”

27

John G. Heyburn II, A View from the Panel: Part of

the Solution, 82 TUL. L. REV. 2225, 2239 (2008).

There is, of course, an MDL involving Plavix

litigation properly in federal court pending in the

District of New Jersey, but the JPML could have

placed that MDL in any federal district, regardless of

where the component cases arose. Indeed, in the

Clean Diesel case, the JPML selected the Northern

District of California as the MDL district, not

because the defendant was subject to general

jurisdiction there, but because at the time of the

MDL’s creation thirty actions were already pending

there, and the district judge selected had an

especially accomplished record of success presiding

over MDLs. In re Volkswagen “Clean Diesel” Mktg.,

Sales Practices, & Prods. Liab. Litig., 148 F. Supp. 3d

1367, 1369—70 (J.P.M.L. 2015).

Ultimately, Petitioner's endorsement of MDL

does not redeem the new restrictions it seeks to

impose on the states. To the contrary, the

combination of MDL and Petitioner's proposed

causation rule may present the worst of both worlds,

simultaneously imposing new inefficiencies while

doing nothing to enhance protections to defendants

ensnared in nationwide mass-tort litigation. [If

anything, Petitioner's endorsement of MDL should

raise eyebrows: consolidation of nationwide litigation

in any single federal district does not promote any of

the “purposes behind the _ specific jurisdiction

doctrine” cited in Petitioner's brief, namely, to ensure

“fair notice as to where [defendants’] conduct would

subject them to suit,” to avoid “forcling) defendants to

defend claims in a place where none of the conduct

28

giving rise to the suit occurred,” and to “prohibit

States from enforcing obligations that a defendant

incurred exclusively through conduct undertaken in

and directed at other States.” Pet. Br. 12. MDL

cannot solve the problems that Petitioner's proposed

causation rule will create.

III. Petitioner’s Proposed Causation Rule Is

Unnecessary Because Numerous Doctrines

Beyond “Minimum Contacts” Already

Protect Defendants From State-Court

Unfairness.

Not only will Petitioner’s proposed causation rule

produce inefficient, unfair, and unexpected results,

but it is also unnecessary to protect defendants from

abusive exercises of jurisdiction. In addition to the

safeguards built into the minimum-contacts analysis,

the “reasonableness” requirement and the forum non

conveniens doctrine together provide a check against

prohibitively inconvenient forums. And other

doctrines, external to personal jurisdiction, further

check extravagant exercises of state-court power.

Taken together, these checks render Petitioner's

novel and restrictive interpretation of minimum

contacts unnecessary.

A. The “Reasonableness” Requirement

And The Forum Non Conveniens

Doctrine Provide A Check Against

Prohibitively Inconvenient Forums.

To the extent that Petitioner is concerned that

defendants may be forced to litigate in unfair or

inconvenient geographic locations, no causation test

is required. Although it is barely mentioned in

29

Petitioner's brief, the Due Process Clause already

requires that exercises of personal jurisdiction be

reasonable, even if minimum contacts exist. As this

Court explained in Burger King: “Once it has been

decided that a defendant purposefully established

minimum contacts within the forum State, these

contacts may be considered in light of other factors to

determine whether the assertion of personal

jurisdiction would comport with ‘fair play and

substantial justice.” 471 U.S. at 476 (quoting Int’]

Shoe, 326 U.S. at 320). This test mandates that

courts assess the burden on the defendant, the forum

State’s interest in adjudicating the dispute, the

plaintiffs interest in obtaining convenient and

effective relief, the interstate judicial system’s

interest in obtaining the most efficient resolution of

controversies, and the shared interest of the several

states in furthering substantive social policies. Jd. at

477. The reasonableness requirement provides a

potent check against unfair exercises of jurisdiction,

particularly when the contacts between the

defendant and the forum state are otherwise

attenuated. In Asahi, for example, this Court found

California’s assertion of jurisdiction to be

unreasonable in a case that ultimately involved two

non-residents of California, in which California law

was unlikely to apply, and where the burden on the

defendant of litigating in California would be heavy.

480 U.S. at 116.

The existing reasonableness inquiry, in other

words, will bar jurisdiction in many of the cases that

Petitioner's causation rule purportedly targets. To

bolster its argument, Petitioner relies on hypothetical

cases in which, under current law, it would be

30

patently unreasonable for a _ state to exercise

jurisdiction under the Court’s set of factors, such as

its fanciful suggestion that nationwide jurisdiction in

California would be appropriate even if it had sold

Plavix to only one customer in California. Pet. Br.

50.

Moreover, in cases where the location of the

lawsuit is especially inconvenient, defendants may

move to dismiss for forum non conveniens. See

Burger King, 471 U.S. at 477 (noting that unfairness

related to the plaintiffs choice of forum “usually may

be accommodated through means short of finding

jurisdiction unconstitutional”). States, including

California, regularly dismiss or stay cases on the

basis of forum non conveniens when a sister state’s

court will be more convenient for the parties and

witnesses, particularly when neither party is from

the forum state and forum law is unlikely to apply.

See, e.g., CAL. CODE Civ. Proc. § 410.30(a) (“When a

court upon motion of a party or its own motion finds

that in the interest of substantial justice an action

should be heard in a forum outside this state, the

court shall stay or dismiss the action in whole or in

part on any conditions that may be just.”); David v.

Medtronic, Inc., 188 Cal. Rptr. 3d 103, 112 (Cal. Ct.

App. 2015) (affirming dismissal on forum non

conveniens grounds of products:liability claims by 36

non-Californians against non-California defendants);

Baltimore Football Club, Inc. v. Superior Court, 171

Cal. App. 3d 352, 365 (Cal. Ct. App. 1985) (dismissing

“claims of nonresidents under sister state laws

against non-California defendants”). Notably, in this

case, the trial court has not yet ruled on a motion to

31

sever the claims of the out-of-state plaintiffs, which

Petitioner has preserved pending this appeal.!®

B. Other Doctrines Also Check

Extravagant Exercises Of State-Court

Power.

It is all the more unnecessary to disrupt this

Court’s personal jurisdiction jurisprudence with

Petitioner's proposed causation rule because other

doctrines already protect defendants from excessive,

extravagant, or imperialistic exercises of state-court

power. These doctrines include state choice-of-law

rules, which are themselves confined by

constitutional restraints, and statutory bases for

diversity jurisdiction and removal, which are best

defined by Congress.

1. Limitations On State Choice Of

Law Protect Defendants From

Overly Aggressive Assertions Of

State Power.

To the extent that Petitioner’s concerns relate to

apphcation of forum law to claims occurring

nationwide, such concerns are best handled as a

10 Def. Bristol-Myers Squibb Co.’s Mem. of Points and

Authorities in Support of Mot. to Quash Service of Summons of

Compl. for Lack of Personal Jurisdiction, July 9, 2013 (“In the

alternative, if this motion to quash is denied, BMS separately

will renew its motion to sever the claims of the Plaintiffs in

these eight related suits and then to dismiss those brought by

non-California residents on the grounds of forum non

conveniens.”).

32

matter of choice of law rather than personal

jurisdiction. See Phillips Petroleum Co. v. Shutts,

472 U.S. 797, 821 (1985) (holding that a state may

not use assumption of jurisdiction as an added weight

in the scale when considering the permissible limits

on choice of substantive law); Keeton v. Hustler

Magazine, Inc., 465 U.S. 770, 778 (1984) (explaining

that choice of law can be litigated “after jurisdiction

over respondent is established, and we do not think

that such choice-of-law concerns should complicate or

distort the jurisdictional inquiry”). A state

adjudicating a nationwide set of claims against an

out-of-state defendant may not constitutionally apply

its own substantive law to every plaintiffs cause of

action. Shutts, 472 U.S. at 821-23 (rejecting Kansas

state court’s application of forum law to nationwide

class action when many claims arose outside of

Kansas). Indeed, in order to constitutionally apply

its own substantive law, “that State must have a

significant contact or significant aggregation of

contacts, creating state interests, such that choice of

its law is neither arbitrary nor fundamentally

unfair.” Allstate Ins. Co. v. Hague, 449 U.S. 302,

312-13 (1981).

Beyond constitutional limitations, even though

their approaches may differ, all states follow choice-

of-law rules crafted to select the most appropriate

law and prevent forum shopping. See Burger King,

471 U.S. at 477 (noting that “the potential clash of

the forum’s law with the ‘fundamental substantive

social policies’ of another State may be

accommodated through application of the forum’s

choice-of-law rules”). California is no exception. Like

most states, California has enacted a _ borrowing

33

statute that applies the statute-of -imitations period

of the state where the cause of action arose. CAL.

ConpE Civ. Proc. § 361; ROBERT C. CASAD & LAURA J.

HINES, JURISDICTION AND FORUM SELECTION § 2:25

(2d ed. 2016) (“Most states have enacted some

statutory rules to limit the opportunities for this kind

of forum shopping.”). With respect to choice of law

generally, California, which follows the

governmental-interest approach to choosing law, has

been restrained when it comes to applying forum law,

regularly vindicating the interests of sister states by

applying their laws in tort cases—even when the

plaintiff is a California resident. See, e.g., McCann v.

Foster Wheeler LLC, 225 P.3d 516, 538 (Cal. 2010)

(applying Oklahoma’s more restrictive statute of

repose to California resident’s personal-injury claim

against New York corporation when exposure to

allegedly harmful asbestos occurred in Oklahoma);

Offshore Rental Co. v. Cont’l Oil Co., 583 P.2d 721,

729 (Cal. 1978) (applying Louisiana law to California

plaintiffs claim against an out-of-state corporation

for injuries occurring in Louisiana); Castro v. Budget

Rent-A-Car Sys., Inc., 65 Cal. Rptr. 3d 430, 443-44

(Cal. Ct. App. 2007) (applying Alabama law to a suit

by a California resident injured in an automobile

accident occurring in Alabama, citing the states’

“respective spheres of lawmaking influence” (internal

quotation marks omitted)).

2. Congress Is Best Situated To

Address Bias Against Out-Of-State

Corporate Defendants.

To the extent that Petitioner’s concerns are about

bias by state courts against out-of-state corporations,

34

personal jurisdiction doctrine is not the right vehicle

for addressing those concerns. As this Court has

reaffirmed in numerous contexts, state courts are

presumptively fair and adequate. See Middlesex

Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457

U.S. 423, 431 (1982) (“Minimal respect for the state

processes, of course, precludes any presumption that

the state courts will not safeguard federal

constitutional rights.” (emphasis omitted)); Sumner

v. Mata, 449 U.S. 539, 549 (1981) (“State judges as

well as federal judges swear allegiance to the

Constitution of the United States, and there is no

reason to think that because of their frequent

differences of opinions as to how that document

should be interpreted, all are not doing their mortal

best to discharge their oath of office.”); Mondou v.

New York, New Haven & Hartford R.R. Co., 223 U.S.

1, 58 (1912) (“We are not disposed to believe that the

exercise of jurisdiction by the state courts will be

attended by any appreciable inconvenience or

confusion.”). When a state court’s procedures fall

short, a litigant can challenge particular unfair

provisions as deprivations of due process. See, e.z.,

Jones v. Flowers, 547 U.S. 220, 239 (2006) (finding

that Arkansas scheme of notice in tax-sale proceeding

violated the Fourteenth Amendment); State Farm

Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 421-—

22, 428 (2003) (rejecting state-court award of punitive

damages in part because it was based on defendant's

out-of-state conduct lawful in the state where it

occurred).

More general concerns about potential state-

court bias or unfairness are best addressed to the

Congress, which can provide a remedy by calibrating

35

the diversity jurisdiction of the federal courts. See

Class Action Fairness Act of 2005, S. Rep. 109-14, at

6 (Feb. 28, 2005) (noting the need for legislation to

“prevent ... state court provincialism against out-of-

state defendants or a judicial failure to recognize the

interests of other states in the litigation”). Should

Petitioner prefer the MDL process to state-court

jurisdiction, as it seems to, it could also ask Congress

to broaden access to federal consolidation by allowing

federal jurisdiction in multiparty cases on the basis of

minimal diversity or by allowing removal by in-state

defendants in cases that would be transferred to an

MDL for pretrial proceedings. Amending the statute

in this way would trade geographic predictability and

state-court control of litigation in exchange for a

single federal forum for pretrial proceedings. But

any such exchange should be accomplished through

legislation. In short, if the policy goal is to allocate

cases between state and federal courts or to calibrate

aggregate litigation, that is a matter for Congress,

not the Constitution.

CONCLUSION

This Court should affirm the decision below.

Respectfully submitted,

Andrew D. Bradt

UNIVERSITY OF

CALIFORNIA, BERKELEY

SCHOOL OF LAW

BOALT HALL

Zachary D. Clopton

CORNELL LAW SCHOOL

Maggie Gardner

HARVARD LAW SCHOOL

D. Theodore Rave

UNIVERSITY OF HOUSTON

LAW CENTER

36

Pamela K. Bookman

Counsel of Record

TEMPLE UNIVERSITY

BEASLEY SCHOOL OF LAW

1719 North Broad Street

Philadelphia,

Pennsylvania 19122

(215) 204-8983

pamela.bookman@temple.

edu