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

_ No. 16-466

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IN THE

Supreme Court of the Anited States

BRISTOL-MYERS SQUIBB COMPANY,

Petitioner,

SUPERIOR COURT OF CALIFORNIA,

SAN FRANCISCO COUNTY, ET AL..,

Respondents.

On Writ of Certiorari

to the Supreme Court of California

MOTION FOR LEAVE TO FILE AMICUS CURIAE

BRIEF OUT OF TIME AND BRIEF OF

TV AZTECA, S.A.B. DE C.V., PATRICIA

CHAPOY, AND PUBLIMAX, S.A. DE C.V.

AS AMICI CURIAE IN SUPPORT OF PETITIONER

DAVID C. FREDERICK

Counsel of Record

DEREK T. HO

JOSHUA HAFENBRACK

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

March 9, 2017 (dfrederick@kellogghansen.com)

IN THE

Supreme Court of the United States

No. 16-466

BRISTOL-MYERS SQUIBB COMPANY,

Petitioner,

V.

SUPERIOR COURT OF CALIFORNIA,

SAN FRANCISCO COUNTY, ET AL.,

Respondents.

On Writ of Certiorari

to the Supreme Court of California

MOTION FOR LEAVE TO FILE

AMICUS CURIAE BRIEF OUT OF TIME

Pursuant to Rule 21 of the Rules of this Court,

amici TV Azteca, S.A.B. de C.V., Patricia Chapoy,

and Publimax, S.A. de C.V., respectfully move for

leave to file the accompanying brief as amici curiae

in support of petitioner out of time. Counsel for

both petitioner and respondents have consented to

the filing of amici’s brief out of time.’

Amici are Mexican TV broadcasters and journalists

who face civil litigation in Texas state court, based

upon an extreme decision of the Texas Supreme

Court that affirmed the exercise of personal juris-

diction in a defamation case brought by Mexican

national plaintiffs, and where all of the operative

facts occurred in and concern Mexico, not Texas. See

—_ ——— ————— —_—— — ———"“Ve

! Counsel for both petitioner and respondents previously

submitted letters granting blanket consent to the filing of

amicus briefs in this case.

2

TV Azteca, S.A.B. de C.V. v. Ruiz, 490 S.W.3d 29

(Tex. 2016), pet. for cert. pending, No. 16-481 (U.S.

filed Oct. 7, 2016) (briefs distributed on February 22,

2017, for conference on March 17, 2017). Amici

TV Azteca (a Mexican national network) and affiliated

persons and entities face suit in Texas notwith-

standing that they have no connection to the State

other than the fact that their television broadcasts

that originate and air in Mexico may be picked

up in southern Texas through over-the-air signal

spillover (and through cable carriers that, without

the consent of the broadcasters, carry such over-the-

air signals). The Texas Supreme Court has held that

the State can exercise personal jurisdiction over TV

Azteca and Publimax because of general marketing

and other commercial efforts in Texas that are wholly

unrelated to their allegedly defamatory television

broadcasts. Amici thus have a substantial interest in

the outcome of this case.

Amici share petitioner's belief that the law of

personal jurisdiction should promote the core policies

of the Due Process Clause, including permitting

potential defendants to predict and contro] their

jurisdictional exposure. Moreover, like petitioner,

amici believe that causation is an indispensable

component of the specific-jurisdiction inquiry.

On January 19, 2017, the Court granted the peti-

tion for a writ of certiorari in this case. Pursuant to

this Court’s Rule 25.1, petitioner’s opening merits

brief was due 45 days after the petition was granted,

which in this case was Monday, March 6, 2017.2

2 Because the 45th day after the petition was granted fell on

Sunday, March 5, pursuant to this Court’s Rule 30, petitioner's

opening merits brief would have been considered timely filed on

Monday, March 6.

3

Pursuant to this Court’s Rule 37.3(a), amicus briefs

supporting a petitioner are due 7 days after the

petitioner’s brief is filed. With a due date of March 6

for petitioner's opening merits brief in this case,

counsel for amici fully expected to file the accom-

panying amicus brief on March 13 and had taken

all the necessary steps to ensure a timely filing.

However, unbeknownst to counsel for amici until

late in the afternoon on March 8, counsel for peti-

tioner filed its opening merits brief on March 1, 2017,

five days before it was due. That unexpectedly early

filing triggered this Court’s Rule 37.3(a) 7-day filing

requirement, which meant that amici’s brief was due

for filing that very same day, March 8.

Although counsel for amici worked diligently to

finalize the brief for timely filing under the unexpect-

edly early filing schedule, counsel was unable to

complete the brief, to have it printed and bound, and

to obtain the necessary client approvals from his

foreign clients in time to meet the new deadline.

For the foregoing reasons and for good cause,

counsel for amici respectfully move for leave to file

the accompanying brief as amici curiae in support of

petitioner out of time.

March 9, 2017

A

Respectfully submitted,

DAVID C. FREDERICK

Counsel of Record

DEREK T. HO

JOSHUA HAFENBRACK

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(dfrederick@kellogghansen.com)

TABLE OF CONTENTS

Page

EE GREE GUE RIE ED a vkvesces cneconseccnsessotcedsvesn sees lil

INTEREST OF AMICI CURITAE......................000000000+. ]

SUMMARY OF ARGUMENT .........0..0.......:ccceeeeseeeees 2

GEE ARTES ESE SS OU ee Bee a 4

I. THE COURT SHOULD ADOPT A

CAUSATION STANDARD OF SPE-

CIFIC JURISDICTION AND REVERSE

THE DECISION BELOW...................... cece, 4

A. The Court Should Adopt A Causa-

tion Requirement To Separate Spe-

cific From General Jurisdiction And

Promote Predictability In Jurisdic-

Dee cn. ceuapsede 4

B. The Court Should Reverse The

Decision Below, Which Eschewed

Causation And Blended Principles

Of Specific And General Jurisdiction........... )

Il. THE SUBSTANTIAL-CONNECTION

TEST APPLIED BY THE TEXAS

SUPREME COURT IS SIMILARLY

UNPREDICTABLE AND IMPROP-

ERLY BLURS JURISDICTIONAL

A. The Substantial-Connection Test

Is Problematic In A Variety Of

ELS LS As EA A OS a 20 1]

B. The Texas Supreme Court’s Deci-

sion In 7'V Azteca Demonstrates

The Substantial-Connection Test Is

Unpredictable And Unworkable .............. 12

ates inilashianiiesiinuwintinaapibanidistnnpedadakouninbetann 15

li

TABLE OF AUTHORITIES

Page

CASES

Avocent Huntsville Corp. v. Aten Int'l Co.,

552 F.3d 1324 (Fed. Cir. 2008)......................0...0.5. 6

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

(AREAS Sacra Rts Ee eer POs RECN GL STORET ETE 5, 8

Calder v. Jones, 465 U.S. 783 (1984) .........ccccce cece 15

Chew v. Dietrich, 143 F.3d 24 (2d Cir. 1998) ..........0... 6

Daimler AG v. Bauman, 134 8. Ct. 746 (2014)...... 5, 10

Dudnikov v. Chalk & Vermilion Fine Arts,

Inc., 514 F.3d 1063 (10th Cir. 2008)..........0000000.... 7

Goodyear Dunlop Tires Operations, S.A. v.

Brown, 564 U.S. 915 (2011) ..................... 2, 4, 7, 11

Gucci Am., Inc. v. Weixing Li, 135 F. Supp.

Se ee EE, Wig TIN Uncu chacebivcaknamsinidtodndascddeacessns¥ee 6

Hanson v. Denckla, 357 U.S. 235 (1958) ...........00.000. 5

Helicopteros Nacionales de Colombia, S.A. v.

es, I Ey, MOE ID ccicccccdenccsecccescescdcoeseess 2,5

Keeton v. Hustler Magazine, Inc., 465 U.S. 770

(Ey a RL RS e eae oe mm ooee aN Ber ae eee 5, 11

Moki Mac River Expeditions v. Drugg, 221

ee I I PT Di tsiiesencdsnnsvcncanencetneess 3, 11, 13

Nowak v. Tak How Inus., Ltd., 94 F.3d 708

LSID ater ees BO ee ES 6

O’Connor v. Sandy Lane Hotel Co., 496 F.3d

ee I SEE bch wii cdctaastahinacthisendensencebacuiees 6, 8, 9

Shaffer v. Heitner, 433 U.S. 186 (1977) .......0..cccc cece. 8

Shoppers Food Warehouse v. Moreno, 746 A.2d

DU i aks 7,8

ibe

Shute v. Carnival Cruise Lines, 897 F.2d 377

(9th Cir. 1990), rev'd, 499 U.S. 585 (1991) ........ 6-7

TV Azteca, S.A.B. de C.V. v. Ruiz:

494 S.W.3d 109 (Tex. App. 2014), aff‘d,

490 S.W.3d 29 (Tex. 2016), pet. for cert.

pending, No. 16-481 (U.S. filed Oct. 7,

490 S.W.3d 29 (Tex. 2016), pet. for cert.

pending, No. 16-481 (U.S. filed Oct. 7,

World-Wide Volkswagen Corp. v. Woodson,

I. 5, .acchan scabintedenbitaduesndbenensouades 8

CONSTITUTION AND RULES

U.S. Const. amend. XIV (Due Process Clause).....2, 4, 12

Sup. Ct. R.:

ERASER Cs EE TR eR reer ee Pear ae ry 1

Ei Ea eR 1 aU RT gee ee Ne 1

OTHER MATERIALS

Victor N. Metallo, “Arise Out of” or “Related

to” Textualism and Understanding Prece-

dent, 17 Wash. & Lee J. Civil Rts. & Soc.

I, A IIIIED ss cicictbhinstntesachpediemaniinnspedeniecnssansnuess g

iv

Lisa Sandstrom Simard, Meeting Expectations:

Two Profiles for Specific Jurisdiction,

ee es tek, NE ,. II Giiccccsadindcccoansinsedncoeseccsess 7

TV Azteca, S.A.B. de C.V. v. Ruiz, No. 16-481:

Brief of Law Professors as Amici Curiae

in Support of Petitioners (U.S. filed Nov.

sadness encounivaaaiabiaiubes 12

Petition for a Writ of Certiorari (U.S. filed

Ue Wis I cig ahs ee eae 2,6

INTEREST OF AMICI CURIAE '

Amici are Mexican TV broadcasters and journalists

who face civil litigation in Texas state court, based

upon an extreme decision of the Texas Supreme

Court that affirmed the exercise of personal juris-

diction in a defamation case brought by Mexican

national plaintiffs, and where all of the operative

facts occurred in and concern Mexico, not Texas. See

TV Azteca, S.A.B. de C.V. v. Ruiz, 490 S.W.3d 29

(Tex. 2016), pet. for cert. pending, No. 16-481 (U.S.

filed Oct. 7, 2016) (“TV Azteca Cert. Pet.”). Amici

TV Azteca (a Mexican national network) and affiliated

persons and entities face suit in Texas notwith-

standing that they have no connection to the State

other than the fact that their television broadcasts

that originate and air in Mexico may be picked up in

southern Texas through over-the-air signal spillover

(and by cable carriers that, without the consent of

the broadcasters, carry such over-the-air signals).

The Texas Supreme Court has held that the State

can exercise personal jurisdiction over TV Azteca and

Publimax because of general marketing and other

commercial efforts in Texas that are wholly unrelated

to their allegedly defamatory television broadcasts.

Amici thus have a substantial interest in the out-

come of this case.

! Pursuant to Supreme Court Rule 37.6, counsel for amici

represents that it authored this brief in its entirety and that

none of the parties or their counsel, nor any other person or

entity other than amici or their counsel, made a monetary

contribution intended to fund the preparation or submission

of this brief. Pursuant to Rule 37.3(a), counsel for amici also

represents that all parties submitted letters granting blanket

consent to the filing of amicus briefs and further consented to

the filing of this brief out of time.

2

Amici share petitioner’s belief that the law of

personal jurisdiction should promote the core policies

of the Due Process Clause, including permitting

potential defendants to predict and control their

jurisdictional exposure. Moreover, like petitioner,

amict believe that causation is an indispensable

component of the specific-jurisdiction inquiry.

SUMMARY OF ARGUMENT

The Court should reaffirm that specific jurisdiction

requires that the defendant’s forum-related conduct

must have a causal connection to the plaintiff’s claims.

In recent years, this Court has explained that, under

the rubric of specific jurisdiction, a defendant’s “suit-

related conduct must create a substantial connection

with the forum State,” Walden v. Fiore, 1348S. Ct. 1115,

1121 (2014) (emphasis added), and that lower courts

should take care not to “elide[] the essential differ-

ence between case-specific and all-purpose (general)

jurisdiction,” Goodyear Dunlop Tires Operations,

S.A. v. Brown, 564 U.S. 915, 927 (2011). As nine

federal courts of appeals and numerous state courts

of last resort have already held in the decades since

this Court’s decision in Helicopteros Nacionales de

Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984),?

causation is critical to promoting the core policies

of the Due Process Clause, which seeks to ensure

predictability and fairness in the exercise of personal

jurisdiction. In short, specific and general jurisdiction

must be confined to their appropriate and separate

spheres for potential defendants to predict and con-

trol their jurisdictional exposure.

2 The First, Third, Fifth, Sixth, Seventh, Eighth, Ninth,

Tenth, and Eleventh Circuits — as well as at least nine state

courts of last resort, approximately half to address the issue —

have adopted a causation requirement. See TV Azteca Cert.

Pet. 13-16 & nn.3-5.

3

The Court should reverse the decision below

because the “substantial connection” test adopted by

the California Supreme Court contravenes these

principles. In eschewing a causation requirement,

the court below improperly blended together suit-

related and suit-unrelated contacts and thereby under-

mined the distinction between specific and general

jurisdiction that is critical to due process protections.

Although Bristol-Myers Squibb concerns a nation-

wide products-liability action brought in California

state court, the substantial-connection test has been

applied by a stubborn minority of courts in a wide

variety of legal contexts. The Texas Supreme Court’s

decision in 7V Azteca exemplifies the erroneous

approach that such courts have taken: it found amici

were subject to specific jurisdiction in Texas state

court based upon news reports that were made in

Mexico, for Mexican viewers, by Mexican networks

and television stations featuring Mexican journalists,

relying upon Mexican sources, and concerning the

activities of Mexican citizens in Mexico and Brazil.

TV Azteca, 490 S.W.3d at 48.

The Texas Supreme Court reached this counter-

intuitive conclusion by virtue of a “substantial

connection” test that, like the one applied by the

California courts, expressly disavows any requirement

of causation. As the Texas Supreme Court explained,

the substantial-connection test “does not require

proof that the plaintiff would have no claim ‘but for’

the contacts, or that the contacts were a ‘proximate

cause’ of the hability.” Jd. at 52-53 (quoting Moki

Mac River Expeditions v. Drugg, 221 S.W.3d 569,

584 (Tex. 2007)). Rather, the Texas Supreme Court

found amici were subject to specific jurisdiction

based upon “additional conduct” in the forum state

4

“beyond the particular business transaction at. issue”

(t.e., the alleged defamatory newscasts that gave

rise to the lawsuit), including a few sporadic and

unrelated business trips made by one of the defen-

dants, former office space, and general advertising

efforts in southern Texas. Like its counterpart in

California, therefore, the Texas Supreme Court mixed

and matched suit-related and suit-unrelated conduct,

blurring the jurisdictional inquiry beyond recognition.

Amicit’s case demonstrates that a _ substantial-

connection approach unmoored to causation princi-

ples undermines the Due Process Clause’s goals of

consistent and predictable jurisdictional results.

ARGUMENT

I. THE COURT SHOULD ADOPT A CAUSATION

STANDARD OF SPECIFIC JURISDICTION

AND REVERSE THE DECISION BELOW

A. The Court Should Adopt A Causation

Requirement To Separate Specific From

General Jurisdiction And Promote Pre-

dictability In Jurisdictional Results

The requirement of a causal connection is an

indispensable element of the _ specific-jurisdiction

inquiry, separating suit-related contacts from suit-

unrelated contacts. To ensure predictability and

fairness in jurisdictional outcomes, the Court should

hold that specific jurisdiction requires a showing of

a causal connection between the plaintiff’s cause of

action and the defendant’s forum-state conduct.

1. This Court has explained that, “[i]n contrast to

general, all-purpose jurisdiction, specific jurisdiction

is confined to adjudication of issues deriving from, or

connected with, the very controversy that establishes

jurisdiction.” Goodyear Dunlop Tires Operations, S.A.

v. Brown, 564 U.S. 915, 919 (2011). The specific-

5

jurisdiction inquiry thus “‘focuses on “the relation-

ship among the defendant, the forum, and the litiga-

tion.”’” Walden v. Fiore, 1348. Ct. 1115, 1121 (2014)

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

770, 775 (1984)). In Daimler AG v. Bauman, 134 8S.

Ct. 746 (2014), this Court recognized that, as it has

“increasingly trained on the relationship among the

defendant, the forum, and the litigation, i.e., specific

jurisdiction, general jurisdiction has come to occupy

a less dominant place in the contemporary scheme.”

Id. at 758 (citation and footnote omitted).

The specific-jurisdiction test has two core compo-

nents. First, a defendant must have “purposefully

availl[ed] itself of the privilege of conducting activities

within the forum State” or purposefully directed

activities toward the forum state. Hanson v. Denckla,

357 U.S. 235, 253 (1958). Second, specific juris-

diction requires that the controversy be “related to

or ‘arise[] out of’ a defendant’s contacts with the

forum,” Helicopteros Nacionales de Colombia, S.A.

v. Hall, 466 U.S. 408, 414 (1984) — which is often

referred to as the “nexus” or “relatedness” element of

the specific-jurisdiction inquiry.®

2. As this Court has explained, “|flor a State

to exercise jurisdiction consistent with due process,

the defendant’s suit-related conduct must create a

substantial connection with the forum State.” Walden,

134 S. Ct. at 1121 (emphasis added). The “nexus”

or “relatedness” element is the key to policing this

distinction between suit-related and suit-unrelated

conduct, While the purposeful-availment prong simply

3 If both of those requirements are met, courts then must

consider whether the exercise of personal jurisdiction comports

with “fair play and substantial justice.” Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 476 (1985).

6

asks whether the defendant deliberately conducted

business in the forum state, the nexus element is

the “divining rod that separates specific jurisdiction

cases from general jurisdiction cases,” Nowak v. Tak

How Inus., Ltd., 94 F.3d 708, 714 (ist Cir. 1996),

and ensures that personal jurisdiction in the forum 1s

“reasonably foreseeable,” O'Connor v. Sandy Lane

Hotel Co., 496 F.3d 312, 322 (3d Cir. 2007).

In light of these principles, nine feceral courts of

appeals have held that, to show a specific-jurisdiction

nexus, there must be some causal connection between

the plaintiff’s legal claim and the defendant’s forum-

state conduct. See TV Azteca Cert. Pet. 13-16 &

nn.3-5.4 And nine state courts of last resort — or

about half to squarely consider the issue — have

reached the same conclusion. See id. These courts

have recognized that only a causation-based nexus

test serves the “basic function” of suit-related specific

jurisdiction. Shute v. Carnival Cruise Lines, 897

F.2d 377, 385 (9th Cir. 1990) (requirement of some

causation “is consistent with the basic function of the

‘arising out of’ requirement — it preserves the essen-

——_———me

4 Among federal circuits, only the Second and Federal

Circuits arguably have embraced a substantial-connection test

rather than a causation-based rule. See Chew v. Dietrich, 143

F.3d 24, 29 (2d Cir. 1998) (adopting sliding-scale approach under

which the nexus requirement can be loosened for defendants

with “more substantial” overall ties to the forum). Even in the

Second Circuit, however, more recent district court decisions

have stated that causation is required. See Gucci Am., Inc.

v. Weixing Li, 135 F. Supp. 3d 87, 98 (S.D.N.Y. 2015) (stating

that, under Second Circuit law, defendant's contacts must at

tininimum be the “‘but for’ cause of the plaintiff’s injury’). The

Federal Circuit has stated in dicta that its nexus test is “far

more permissive than either the ‘proximate cause’ or the ‘but

for’ analyses.” Avocent Huntsville Corp. v. Aten Intl Co., 552

F.3d 1324, 1337 (Fed. Cir. 2008).

7

tial distinction between general and specific jurisdic-

tion”), rev'd on other grounds, 499 U.S. 585 (1991).

Without a requirement of causation, lower courts

applying the “substantial connection” rule will remain

free to shoehorn into the specific-jurisdiction analysis

suit-unrelated contacts, such as general business,

advertising, and sales activities in the forum state.

See Goodyear, 564 U.S. at 927 (reversing North

Carolina Supreme Court where personal-jurisdiction

analysis “elided the essential difference between

case-specific and all-purpose (general) jurisdiction”);

Dudnikov v. Chalk & Vermilion Fine Arts, Inc.,

514 F.3d 1063, 1078 (10th Cir. 2008) (noting that

“substantial connection” test “inappropriately blurs

the distinction between specific and general personal

jurisdiction” and “improperly conflates these two

analytically distinct approaches to jurisdiction”);

Lisa Sandstrom Simard, Meeting Expectations: Two

Profiles for Specific Jurisdiction, 38 Ind. L. Rev. 343,

366 (2005) (noting substantial-connection test has

“inherent tendency to dilute the requirements of both

specific and general personal jurisdiction”).

Shoppers Food Warehouse v. Moreno, 746 A.2d 320

(D.C. 2000), illustrates the fundamental shortcomings

of the substantial-connection test. There, the plain-

tiff slipped and fell on a piece of okra at one of the

defendant’s Maryland grocery stores. Jd. at 323. A

divided D.C. Court of Appeals held that the grocer

was subject to specific jurisdiction in the District

because it regularly advertised in The Washington

Post, even though there was no evidence that the

plaintiff saw or acted on those advertisements. See

id. at 338 (Schwelb, J., dissenting). The court majority

explained that, because the defendant “advertis|ed]

extensively and over a substantial period of time in

8

the District’s major circulation newspaper, Shoppers

could be sued in the District on a claim similar

to that filed by Ms. Moreno,” even if Ms. Moreno’s

particular injuries did not result from the advertising.

Id. at 336. That approach is nothing more than

watered-down general jurisdiction under a new name.

The grocery chain’s advertising in The Washington

Post had nothing to do with whether it negligently

left okra in its aisles and caused the plaintiff’s slip-

and-fall. As Moreno demonstrates, the non-causation

“substantial connection” line of reasoning is funda-

mentally at odds with Walden’s instruction that,

under specific as opposed to general jurisdiction,

“the defendant's suit-related conduct must create a

substantial connection with the forum State.” 134 S.

Ct. at 1121.

3. The causal-connection rule of specific juris-

diction also would promote the core purposes of

predictability and fair notice underlying due process

limitations on the exercise of personal jurisdiction.

The “Due Process Clause is supposed to bring

‘a degree of predictability to the legal system.’ It

should allow out-of-state residents to ‘structure their

primary conduct with some minimum assurance as

to where that conduct will and will not render them

liable to suit.”” Sandy Lane Hotel, 496 F.3d at 321

(quoting World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286, 297 (1980)). Due process thus requires

that defendants have “‘fair warning that a particular

activity may subject [them] to the jurisdiction of a

foreign sovereign.” Burger King, 471 U.S. at 472

(quoting Shaffer v. Heitner, 433 U.S. 186, 218 (1977)

(Stevens, J., concurring in the judgment)) (alteration

in original).

9

The majority of courts, here again, have recognized

the importance of causation in ensuring predictable

results in applying the doctrine of specific jurisdic-

tion. A causation requirement ensures that specific

jurisdiction is confined to cases that arise as the

direct and foreseeable result from the out-of-state

defendant's forum-state activities. See Sandy Lane

Hotel, 496 F.3d at 321 (without causation require-

ment, nexus inquiry becomes “freewheeling totality-

of-the-circumstances” analysis and, “when the only

rule is that each case is different, then in no case

can the result safely be predicted”); see also Victor

N. Metallo, “Arise Out of” or “Related to”: Textualism

and Understanding Precedent, 17 Wash. & Lee J.

Civil Rts. & Soc. Just. 415, 443 (2011) (“a test that

does not confine contacts to two discernable spheres

fails to place defendants on notice of where they

stand” and thus prevents parties from “control[ling]

their jurisdictional exposure”).

B. The Court Should Reverse The Decision

Below, Which Eschewed Causation And

Blended Principles Of Specific And Gen-

eral Jurisdiction

In Bristol-Myers Squibb, 678 plaintiffs — including

592 out-of-state plaintiffs — brought a products-defect

suit in California state court, alleging they suffered

harm when they took the drug Plavix (which is used

to inhibit blood clotting). Pet. App. la-3a. The

defendant Bristol-Myers Squibb manufactured and

marketed Plavix. Jd. Although Bristol-Myers

Squibb had five research and laboratory facilities

and employees in California, it did not design or

manufacture Plavix there. Jd. at 5a. Nor did Bristol-

Myers Squibb prepare the marketing materials for

the drug in the State. Jd. As for the out-of-state

plaintiffs, they were not prescribed with or treated

10

for Plavix in California; rather, they suffered their

alleged injuries elsewhere. /d. at 4a; id. at 46a-47a

(Werdegar, J., dissenting).

In determining whether specific jurisdiction existed

over Bristol-Myers Squibb with respect to the out-of-

state plaintiffs’ claims, the California Supreme Court

reiterated and applied its longstanding “substantial

connection” test. Jd. at 2la-22a. Under that test,

“the defendant’s activities in the forum state need

not be either the proximate cause or the ‘but for’

cause of the plaintiff’s injuries.” Jd. at 22a. Rather,

the “more wide ranging the defendant's forum

contacts, the more readily is shown a connection

between the forum contacts and the claim”; thus,

the plaintiff’s claim “need not arise directly from the

defendant’s forum contacts in order to be sufficiently

related to the contact to warrant the exercise of

specific jurisdiction.” Id.

Applying this non-causation-based standard, the

California Supreme Court found specific jurisdiction

existed based upon Bristol-Myers Squibb’s nationwide

sales and marketing efforts and general business ties

with California, such as its five research and labora-

tory facilities in the State. Jd. at 24a-25a, 28a-29a.

Tellingly, the court below acknowledged that there

was “no claim that Plavix itself was designed or

developed in these [California] facilities.” Jd. at 29a.

Those suit-unrelated forum-state facilities therefore

should have been immaterial, but instead the decision

below cited the state offices as creating “an additional

connection” that was somehow relevant to the specific-

jurisdiction nexus analysis. Id.; compare with Daim-

ler, 134 S. Ct. at 757 (contacts that bore “no apparent

relationship to the accident that gave rise to the suit”

are properly considered under general jurisdiction,

not specific jurisdiction).

11

In sum, the California Supreme Court’s “substantial

connection” reasoning fails this Court’s basic test of

specific jurisdiction. The Court should reverse the

decision below and reiterate that specific jurisdiction

must be “confined to adjudication of issues deriving

from, or connected with, the very controversy that

establishes jurisdiction.” Goodyear, 564 U.S. at 919;

see Walden, 134 S. Ct. at 1121 (specific-jurisdiction

inquiry “focuses on ‘the relationship among the

defendant, the forum, and the litigation’”) (quoting

Keeton, 465 U.S. at 775).

Il. THE SUBSTANTIAL-CONNECTION TEST

APPLIED BY THE TEXAS SUPREME

COURT IS SIMILARLY UNPREDICTABLE

AND IMPROPERLY BLURS JURISDIC-

TIONAL LINES

A. The Substantial-Connection Test Is Prob-

lematic In A Variety Of Contexts

Although Bristol-Myers Squibb concerns a nation-

wide products-liability action brought in California

state court, a stubborn minority of state courts of last

resort continues to apply the substantial-connection

test across a wide variety of legal contexts.

The Texas Supreme Court applies a “substantial

connection” test that similarly disavows causation

principles. The Texas test provides that, for purposes

of specific jurisdiction, a plaintiff’s claim “arises from

or relates to” the defendant’s forum-state conduct

when there is a “‘substantial connection between [the

defendant’s forum-state] contacts and the operative

facts of the litigation.” TV Azteca, S.A.B. de C.V. v.

Ruiz, 490 S.W.3d 29, 52 (Tex. 2016) (quoting Moki

Mac River Expeditions v. Drugg, 221 S.W.3d 569, 585

(Tex. 2007)), pet. for cert. pending, No. 16-481 (U.S.

filed Oct. 7, 2016). Like its counterpart in California,

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the Texas Supreme Court's standard explicitly

rejects any requirement of a causal nexus: “Thfe]

‘substantial connection’ standard does not require

proof that the plaintiff would have no claim ‘but for’

the contacts, or that the contacts were a ‘proximate

cause’ of the liability.” Jd. at 52-53 (quoting Moki

Mac, 221 S.W.3d at 584).

B. The Texas Supreme Court’s Decision In

TV Azteca Demonstrates The Substantial-

Connection Test Is Unpredictable And

Unworkable

In T'V Azteca, the Texas Supreme Court applied its

“substantial connection” test in an extreme decision

that illustrates how a non-causation-based rule

inherently conflates general and specific jurisdiction

and undermines the core policies of the Due Process

Clause.

1. The plaintiff in 7V Azteca is Gloria Ruiz, a

Mexican singer “sometimes referred to as ‘Mexico’s

Madonna.” 490 S.W.3d at 35. In the late 1990s,

at the height of her fame and fortune, Ms. Trevi was

criminally charged with kidnapping and sexual assault

5 The Texas Supreme Court has declined to adopt the “sliding

scale” approach used by the California courts, see Moki Mac,

221 S.W.3d at 583, but that merely illustrates that there is

disagreement even among courts attempting to apply the

“amorphous” substantial-connection rule. Brief of Law Profes-

sors as Amici Curiae in Support of Petitioners at 2, 7V Azteca,

S.A.B. de C.V. v. Ruiz, No. 16-481 (U.S. filed Nov. 14, 2016)

(“[T]here is disarray even among courts applying the ‘substan-

tial connection’ test, reflecting the difficulty in applying such a

vague and amorphous standard.”). Critically, both the Texas

and the California courts agree that the “substantial connection”

rule does not require any showing of causation. That feature

is the dispositive one under the question presented in Bristol-

Myers Squibb.

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for allegedly luring underage girls into sexual rela-

tionships with her manager and then-boyfriend. Id.

Ms. ‘Trevi was eventually arrested and spent time in

Brazilian and Mexican prisons, before a Mexican

judge dismissed the charges against her in 2004. Id.

Amici — three Mexican nationals in the broadcasting

industry — are the defendants in Ms. Trevi’s defama-

tion suit. TV Azteca is a Mexican nationa! network

that produces and airs the popular entertainment

news program Ventaneando hosted by senior anchor

petitioner Patricia Chapoy. Jd. TV Azteca and its

broadcasting partner, Publimax, are Mexican corpora-

tions with no offices, employees, or agents in the

United States; Ms. Chapoy is a Mexican citizen who

has never resided in Texas or been party to a lawsuit

in the United States. Id.

In 2009, on the 10-year anniversary of the criminal

charges against Ms. Trevi, Ventaneando produced a

series of retrospective reports regarding Ms. Trevi’s

saga. Those reports were made in Mexico, by Mexi-

can journalists, for Mexican viewers, relying upon

Mexican sources, and they concerned the activities of

Mexican citizens (including Ms. Trevi) in Mexico and

Brazil. Id. at 47-48. None of amici, or anyone acting

on their behalf, traveled to Texas to report, prepare,

or film the programs. See TV Azteca, S.A.B. de C.V.

v. Ruiz, 494 S.W.3d 109, 118 (Tex. App. 2014), aff,

490 S.W.3d 29 (Tex. 2016), pet. for cert. pending,

No. 16-481 (U.S. filed Oct. 7, 2016). Nor did amici

intentionally broadcast the alleged defamatory reports

into Texas. Rather, because of “involuntary spill-

over” inherent in any broadcast signal, some over-

the-air transmissions from the 2009 broadcasts bled

into the United States and were received by viewers

along the south Texas border. 490 S.W.3d at 49.

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2. Nevertheless, Ms. Trevi sued amici for defama-

tion in Texas state court, not Mexico. In evaluating

whether amici were subject to specific jurisdiction

in Texas, the Texas Supreme Court applied its

“substantial connection” test and eschewed any

causation-based analysis. The court found specific

jurisdiction existed over amici based upon an

improper amalgamation of general business and sales

contacts with Texas, notwithstanding that those

contacts are wholly unrelated to whether the 2009

television broadcasts defamed Ms. Trevi.

Notably, the Texas Supreme Court candidly

acknowledged that “[t]he subject matter of the alleg-

edly defamatory broadcasts is completely unrelated

to Texas” because the events in question “occurred

outside of and [were] completely unrelated to Texas.”

490 S.W.3d at 47 (emphasis added). That should

have ended the inquiry, but did not, because the

Texas Supreme Court’s substantial-connection rule

permitted jurisdiction to be predicated on “conduct

beyond the particular business transaction at issue”

in the case. Jd. at 54 (emphasis added). The court

found amici’s “additional conduct” in Texas justified

the exercise of specific jurisdiction, based upon a

smattering of sporadic and suit-unrelated business

ties between amici and the forum state. In particular,

the court cited three prior instances in which two of

the amici were physically present in Texas unrelated

to the broadcasts in question® and other general sales

6 Those contacts were: (1) between 2005 and 2009, Publimax

had a business office in South Texas; (2) in 2006 or 2007,

Publimax “sent or hired an employee to work in Texas” to

explore expanding its operations through cable distribution; and

(3) Ms. Chapoy made one trip to Laredo to promote a book

(unrelated to Ms. Trevi) and a few years later made another

trip to Dallas to host a live broadcast of a separate episode of

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and “promotional” efforts to generate advertising

revenue from Texas businesses. Id. at 49-51, 54-55.7

Tellingly, the Texas decision omits any discussion

of what should be the heart of the specific-

jurisdiction inquiry: whether amici’s forum-state

conduct gave rise to Ms. Trevi’s defamation claim.

Indeed, the only time the Texas decision even

mentions causation is when it disavows that concept

as a prerequisite to specific jurisdiction. Id. at 52-53.

As with Bristol-Myers Squibb, the erroneous result in

TV Azteca shows that a substantial-connection test

untethered to causation principles will undermine

the core principle that specific personal jurisdiction

must be based on a defendant’s “suit-related con-

duct.” Walden, 13458. Ct. at 1121 (emphasis added).

CONCLUSION

The judgment of the court of appeals should be

reversed.

Ventaneando (which was also unrelated to Ms. Trevi). 490 S.W.3d

at 49-51.

7 The Texas Supreme Court also conflated the Texas contacts

of the three amici rather than assessing them individually —

another error in its analysis. See Calder v. Jones, 465 U.S. 783,

790 (1984) (“Each defendant’s contacts with the forum State

must be assessed individually.”).

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Respectfully submitted,

DAVID C. FREDERICK

Counsel of Record

DEREK T. HO

JOSHUA HAFENBRACK

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

March 9, 2017 (dfrederick@kellogghansen.com)