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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

_ No. 16-466
wht

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,

12

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.

13

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.

14

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

15

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.”).

16
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)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0715%3A31. Public record. Not legal advice.