Amicus Curiae Brief — Reynolds v. International Amateur Athletic Federation

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No, 93-

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SUPREME COURT OF nl fea oee

OCTOBER 1994 TERM

Harry L. Reynolds, Jr.,

Petitioner,

vs.

International Amateur Athletic Federation, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

Brief for the States of Ohio and Montana

as Amici Curiae in Support of Petitioner

LEE FISHER

Attorney General

RICHARD A. CORDRAY

State Solicitor

(Counsel of Record)

SIMON B. KARAS

Deputy Chief Counsel

ELISE W. PORTER

Assistant Attorney General

State Office Tower

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

(614) 466-5026

COUNSEL FOR AMICUS CURIAE

STATE OF OHIO [Other Counsel

Listed on Inside Front Cover]

BEST AVAILABLE COPY!

Joseph P. Mazurek

Attorney General

State of Montana

Justice Building

P.O. Box 201401

Helena, MT 59620-1401

(406) 444-2026

TABLE OF CONTENTS

Page

TABS UP AUT REIIe nc ce eee een ill

INTEREST OF THE AMICI CURIAE ........... l

ae 4

REASONS FOR GRANTING THE WRIT......... 4

I. THE ISSUE OF PERSONAL JURISDICTION

PRESENTED IN THIS CASE HAS VAST

IMPLICATIONS FOR THE ABILITY OF

STATES TO CONTINUE TO PROTECT AND

VINDICATE THE RIGHTS OF THEIR CITIZENS

AGAINST INTERNATIONAL TORTFEASORS

WHOSE WRONGDOING AFFECTS’ THE

PERSONAL AND PROFESSIONAL LIVES OF

BEE GAPE bk cw os BO ke eS es 5

A. The Court’s Relaxation of Jurisdictional

Standards in the Face of the Increasing

Internationalization of the American

Economy and of American Life..... 5

B. The Need for More Well-Defined

Standards of Personal Jurisdiction Outside

the Specific Context of Commercial

Transactions Between an Individual and

a For-Profit Business Entity ....... 1]

. The Continuum Between Calder and

Keeton, at One End, and World-Wide

Volkswagen and Asahi, at the Other

End, Should Be Further Defined ..... 14

Il. THE RULING BELOW EXEMPLIFIES A DEEP

CONFLICT WITHIN AND AMONG’ THE

FEDERAL CIRCUIT COURTS AND STATE

HIGH COURTS ABOUT THE PROPER

INTERPRETATION OF THE COURT’S

DECISIONS IN CALDER v. JONES AND

KEETON v. HUSTLER MAGAZINE, INC. ... 19

A. The Decision Below Exemplifies a

Continuing Confict Among the Federal

eo dG Re ee eee 19

B. This Circuit Split Is Exacerbated by

Numerous Conflicting Decisions by

oe re ee eee 24

oe The General Split in the Courts Is

Heightened for the State of Ohio and

Its Citizens, in Particular, by a Direct

Conflict Here Between the Sixth

Circuit and the Ohio Supreme Court .. . 26

oe ee) werner ee et re re 28

iil

TABLE OF AUTHORITIES

CASES Page

Asahi Metal Indus. Co. v. Superior Ct.,

ee i0, 12, 15

Brainerd v. Governors of the Univ. of Alberta,

873 F.2d 1257 (9th Cir. 1989) ........... 20, 23

Burger King Corp. v. Rudzewicz,

ee Ne 3, 26

Burt v. Board of Regents of the Univ. of Nebraska,

757 F.2d 242 (10th Cir. 1985), vacated on other

mre, re tee. Wee CEO) www te 21

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

Core-Vent Corp. v. Nobel Indus. AB,

Se a eee Ce Gt, PO) ww kt tt we 22

Fallang v. Hickey,

ee wees ba? We PO) ww ee et ee 26, 27

First Am. First, Inc. v. National Ass’n of Bank Women,

Meee ame See CE , EOD 6k cet te ee 20

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

Helicoptoros Nacionales de Columbia, S.A. v. Hall,

EE 10

Hugel v. McNell, 886 F.2d 1 (1st Cir. 1989),

cert. denied, 494 U.S. 1079 (1990) ....... 3, 19, 27

International Shoe Co. v. Washington,

a 8, 9, 15

Keeton v. Hustler Magazine, Inc.,

CR passim

Krantz v. Air Line Pilots Ass’n Int’l,

ee Wee CE, EUS) gc ee ees 24

Leeper v. Leeper, 319 A.2d 626 (N.H. 1974) ....... 2

Madara v. Hall, 916 F.2d 1510 (11th Cir. 1990) .... 22

McGee vy. International Life Ins Co.,

Er ‘ee

Milliken v. Meyer, 311 U.S. 457 (1940) ......... 15

Pennoyer ¥. Neg, 93 U.S. 714 CIB7T).. ww ce ee 9

Shaffer v. Heitner, 433 U.S. 186 (1977) ...... i, a?

Shaw v. North Am. Title Co.,

eR a rere 25

Ticketmaster-New York, Inc. v. Alioto,

pp w ee Re Oe 23

Wilson v. Belin, 20 F.3d 644 (5th Cir. 1994) ...... 23

World-Wide Volkswagen Corp. v. Woodson,

ae ee ee i oe ee a eee ees passim

STATUTES & RULES

Ohio Rev. Code §2307.382(A)(6) ............. 14

i a, Ges ee oe eh ee ee ee ee 14

CONSTITUTIONAL PROVISIONS

cei Rs A Ee 6 6 ee eh ee ke wee passim

MISCELLANEOUS

Friedman, The World, When Money Talks, Governments

Listen, New York Times, July 24, 1994, §4,at3 ....7

McGourty, Highway to the Global Netropolis,

Daily Telegraph, May 4, 1994, at20 ........... 7

MISCELLANEOUS (cont’d.)

Organization for Economic Co-Operation and

Development, The Dawn of Global Scientific

Co-Operation: Interview with Senior Astronomer

Francoise Prederie, OECD Observer,

Fe EE a ok Ok ee se

Restatement (Second) of Conflict of Laws (1971) . .

Rheingold, Networking Brings Power to the People,

Daily Telegraph, May 11, 1994, at 16 .......

Sports People: Inquiry on Connors,

New York Times, Feb. 28, 1986, at A24 .....

Page

INTEREST OF THE AMICI CURIAE

The State “has a manifest interest in providing

effective means of redress for its residents." McGee v.

International Life Ins. Co. , 355 U.S. 220, 223 (1957). This

case is illustrative; here the trial court awarded Petitioner

$27,356,008 in compensatory and punitive damages based on

Respondent’s malicious defamation and other intentional

tortious conduct that was undertaken "wiih ill will and a

spirit of revenge toward [Petitioner]." Pet. App. 72a-73a;

see also id. 66a-67a. The ruling below, holding that

personal jurisdiction was improper in these circumstances,

would severely undercut the ability of the States to provide

an effective means of redress for residents who are

victimized by international tortfeasors. The amici States and

their citizens thus are directly affected by this ruling.

In this case, an international association exercises

pervasive control over the professional life of a state

resident. That association coinmitted an intentional tort

against Petitioner by deliberately distributing a defamatory

press release through the international media that was

calculated to cause and did cause his personal and

professional ruin by devastating his reputation in the forum

State, where he resides. By holding that the association

cannot be haled into court to answer for its wrongdoing, the

Sixth Circuit’s ruling would remove the only effective means

by which the States can protect their citizens against

intentional wrongdoing by such international entities.

The "manifest interest" of the States in protecting

their citizens is clearly present in tort cases:

""A state has an especial interest in exercising

judicial jurisdiction over those who commit

torts within its territory. This is because torts

involve wrongful conduct which a state seeks

to deter, and against which it attempts to

afford protection, by providing that a

tortfeasor shall be liable for damages which

are the proximate result of his tort.’"

Keeton v. Hustler Magazine, Inc.,465 —_s. 770, 778 (1984)

(quoting Leeper v. Leeper, 319 A.2d 626, 629 (N.H. 1974),

which was quoting Restatement (Second) of Conflict of Laws

§36, cmt. c (1971)). The State’s interest is particularly

strong when the case involves intentional torts such as libel:

This interest extends to libel actions .... False

statements of fact harm both the subject of the

falsehood and the readers of the statement.

[The State] may rightly employ its libel laws

to discourage the deception of its citizens.

There is "no constitutional value in false

statements of fact."

Keeton, 465 U.S. at 776 (quoting Gertz v. Robert Welch,

Inc., 418 U.S. 323, 340 (1974)) (emphasis in original).

The strength of the State’s interest is clear enough

when the plaintiff, as in this case, is a state resident. In

Keeton, moreover, the Court held that the State’s interest in

permitting redress through libel actions is especially strong

-- sO strong that it may exercise jurisdiction over a libel

defendant even when the plaintiff is a nonresident. /d. at

776-777.

The States also have an interest in other factors in the

determination of personal jurisdiction:

[C]ourts in "appropriate case[s]" may evaluate

... "the forum State’s interest in adjudicating

the dispute," “the plaintiff's interest in

obtaining convenient and effective relief," "the

EIEIO

interstate judicial system’s interest in obtaining

the most efficient resolution of the

controversies," and the "shared interest of

several States in furthering substantive social

policies."

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985)

(quoting World-Wide Volkswagen Corp. v. Woodson, 444

U.S. 286, 292 (1980)). The States therefore have a shared

interest in asserting personal jurisdiction in order to further

their substantive social policies and to obtain the most

efficient resolution of controversies.

Of course, the factors of interest to the plaintiff and

the States must be balanced against the burden imposed on

the defendant by defending a case in a foreign forum. The

States have no wish, and no constitutional authority, to assert

jurisdiction that would not comport with "fair play and

sub. antial justice," as required by the Due Process Clause.

No..etheless, in cases where egregious intentional torts have

been perpetrated against state citizens on an international

scale, the recognized interests of the plaintiffs and their

States are particularly strong.

It has been said that personal jurisdiction is "a very

real problem which cuts tc the heart of a federal court’s

ability to practice its trade." Hugel v. McNell, 886 F.2d 1,

2 (1st Cir. 1989), cert. denied, 494 U.S. 1079 (1990). The

same is true, of course, of the state courts, but the amici

States would also contend that personal jurisdiction cuts even

deeper than this. The ability to assert personal jurisdiction

over defendants permits each State to secure redress for its

citizens against wrongdoing, and thereby to enforce

principles of the common law that have long served to create

and protect an orderly society within each State. Without the

ability to bring defendants to answer for injuries done to their

——————————————

citizens, the States would have lost an important piece of

their traditional authority to govern. For this reason, it is

vitally important for each State to be able to exercise

personal jurisdiction over international associations that exert

pervasive influence and control over state citizens in the

increasingly internationalized economic and social life of our

Nation.

QUESTION PRESENTED

Whether it comports with "traditional notions of fair

play and substantial justice" under the Due Process Clause

for a State to exercise personal jurisdiction over an

international association that wields virtually absolute power

over the professional conduct of a plaintiff state citizen, when

the association deliberately directs tortious acts at the plaintiff

that predictably cause him devastating financial and personal

injury in the forum State.

REASONS FOR GRANTING THE WRIT

The court below concluded that the Due Process

Clause does not permit an international association to be

haled into court in the State where the plaintiff resides to be

made to answer for its intentional tortious conduct. It

reached this holding without regard to the important facts

that the association controls nearly every aspect of the

plaintiff’s professional life, and that it purposely directed

injurious conduct towards the plaintiff, the brunt of which

was felt within the forum State.

The ruling below runs contrary to this Court’s

precedents. It also exemplifies a substantial conflict among

and within the Federal Courts of Appeals and the high courts

of the States. That conflict is felt especially sharply by the

State of Ohio and its citizens, for the Sixth Circuit and the

Ohio Supreme Court have now rendered diametrically

opposed rulings on the issue of personal jurisdiction raised

here. As a general matter, moreover, if the ruling below is

allowed to stand, it will allow international organizations

located offshore, which increasingly exercise pervasive

control over the professional and personal lives of American

citizens, deliberately to harm those citizens without fearing

any possibility of redress in the Federal and state courts.

I. THE ISSUE OF PERSONAL JURISDICTION

PRESENTED IN THIS CASE HAS VAST

IMPLICATIONS FOR THE ABILITY OF

STATES TO CONTINUE TO PROTECT AND

VINDICATE THE RIGHTS OF THEIR

CITIZENS AGAINST INTERNATIONAL

TORTFEASORS WHOSE WRONGDOING

AFFECTS THE PERSONAL AND

PROFESSIONAL LIVES OF STATE CITIZENS.

A. The Court’s Relaxation of Jurisdictional

Standards in the Face of the Increasing

Internationalization of the American

Economy and of American Life.

This case presents unique facts regarding international

entities that have profound effects on the lives of State

citizens. Although Petitioner’s dispute is with an

international sports association, the growing proliferation of

similar international associations, in various fields, imbues

this case with significance that extends well beyond the arena

of amateur sports.

This Court has observed that in the context of

personal jurisdiction, the limits imposed upon state

jurisdiction by the Due Process Clause have been

“substantially relaxed over the years." World-Wide

Volkswagen, 444 U.S. at 293-94. This appropriate trend is

"largely attributable to a fundamental transformation in the

American economy." /d. The trend was first noted in

McGee:

[A] trend is clearly discernible toward

expanding the permissible scope of state

jurisdiction over foreign corporations and

other nonresidents. In part this is attributable

to the fundamental transformation of our

national economy over the years. Today

many commercial transactions touch two or

more States and may involve parties separated

by the full continent. With this increasing

nationalization of commerce has come a great

increase in the amount of business conducted

by mail across state lines. At the same time

modern transportation and communication

have made it much less burdensome for a

party sued to defend himself in a State where

he engages in economic activity.

355 U.S. at 222. In World-Wide Volkswagen, the Court

pointed out that "[t]he historical developments noted in

McGee, of course, have only accelerated in the generation

since that case was decided." World-Wide Volkswagen, 444

U.S. at 294.

This case presents the Court with the opportunity to

consider and address the next development in this apparently

inexorable trend, which is the growing internationalization of

the American economy, and indeed of the world economy.

It has been widely remarked in the last decade that

Americans have come more and more to live and work in a

truly global frame of reference. Virtually all of the products

produced by American companies or consumed by American

citizens are now, either in part or in full, international in

character. Numerous articles in news and business

publications discuss and ponder the new

"internationalization" of American business and American

economic life. See, e.g., Friedman, The World, When

Money Talks, Governments Listen, New York Times, July

24, 1994, §4, at 3.

In fact, the economy is but one aspect of American

life that is undergoing a global transformation. Much of

modern scientific search is, and indeed must be, conducted

within the framework of the international scientific

community. See, e.g., Organization for Economic Co-

Operation and Development, The Dawn of Global Scientific

Co-Operation: Interview with Senior Astronomer Francoise

Prederie, OECD Observer, Apr. 1994, at 4. International

computer networks are rapidly changing the ways that people

all over the world are able to interrelate. In particular,

recent developments in computer and broadcast technology

have entirely transformed the nature and reach of the

international media -- the potent mechanism that Respondents

deliberately utilized in this case to defame Petitioner. See,

€.g., McGourty, Highway to the Global Netropolis, Daily

Telegraph, May 4, 1994, at 20; Rheingold, Networking

Brings Power to the People, Daily Telegraph, May 11, 1994,

at 16.

As this case clearly illustrates, many sports and other

contests have also become predominantly international in

character. Athletes and other contestants are now being

controlled to an increasing degree by _ international

organizations. See, e.g., Sports People: Inquiry on Connors,

New York Times, Feb. 28, 1986, at A24 (Men’s

International Professional Tennis Council fined American

tennis player for the “major offense" of "aggravated

behavior,” which was his decision to forfeit a match). In the

same manner, cultural life, including many of the performing

arts, have been international in character for many years.

More generally, international organizations and associations

now set standards and dictate procedures for American

citizens in virtually every arena of life. As this case also

illustrates, such entities have the power to wield enormous

influence over American citizens, and can cause them

enormous harm, especially in a world marked by

instantaneous communications that can saturate the globe. At

the same time, these same entities generally derive great

benefit from their American alliances.

Under the current understanding of the Due Process

Clause, a State may exercise jurisdiction over the person of

a nonresident defendant when there exist "minimum contacts"

between the defendant and the forum State. The requirement

of minimum contacts is, in part, imposed to protect

defendants from inconvenient litigation. The protection from

inconvenient litigation is generally described in terms of

reasonableness; the contacts must be such that the

maintenance of a suit in the forum State "does not offend

‘traditional notions of fair play and substantial justice.’"

World-Wide Volkswagen, 444 U.S. at 291-92 (quoting

International Shoe Co. v. Washington, 326 U.S. 310, 317

(1945)). Nonetheless, the defendant’s burden of having to

defend a suit in a foreign jurisdiction will be considered in

light of several countervailing factors, which include any

benefits the defendant derives from contacts with the forum

State as well as the State’s interests in adjudicating the

dispute, in affording relief to state residents, and in

furthering its own substantive social policies. World-Wide

Volkswagen, 444 U.S. at 292.

This Court, as long ago as McGee and Hanson vy.

Denckla, 357 U.S. 235, 250-51 (1958), recognized that

improvements in modern transportation and communication

have made it less burdensome for a party located outside a

State to defend itself:

As technological progress has increased the

flow of commerce between the States, the

need for jurisdiction over nonresidents has

undergone a similar increase. At the same

time, progress in communications and

transportation has made the defense of a suit

in a foreign tribunal less burdensome. In

response to these changes, the requirements

for personal jurisdiction over nonresidents

have evolved from the rigid rule of Pennoyer

v. Neff, 95 U.S. 714, to the flexible standard

of International Shoe Co. v. Washington, 326

U.S. 310.

Hanson, 357 U.S. at 250-51; see also World-Wide

Volkswagen, 444 U.S. at 294. Because of the increased

internationalization of American institutions and American

life, this Court should consider in this case whether the limits

imposed on State jurisdiction should be similarly relaxed with

respect to foreign defendants who derive substantial benefits

from their contacts with the forum State and who may direct

intentional conduct toward its residents.

The trend in the Court’s decisions toward more elaxed

standards is, however, finite and controlled by due process:

[I]t is a mistake to assume that this trend

heralds the eventual demise of all restrictions

on the personal jurisdiction of state courts ....

Those restrictions are more than a guarantee

of immunity from inconvenient or distant

litigation. They are a consequence of

territorial limitations on the power of the

respective States.

Hanson, 357 U.S. at 250-51 (citation omitted); see also

World-Wide Volkswagen, 444 U.S. at 294. The Court has

held that even if the forum State has a strong interest in

applying its law to the controversy, "the Due Process Clause,

acting as an instrument of interstate federalism, may

sometimes act to divest the State of its power to render a

valid judgment." Jd. (citing Hanson, 357 U.S. at 251, 254).

The issue before the Court in this case is to determine

how far this trend in its decisions should be reflected in cases

that extend into the international sphere, while still

comporting with the constitutional principles of due process.

There have, of course, been prior cases in which the Court

has considered the issue of personal jurisdiction in an

international context. See, e.g., Asahi Metal Indus. Co. v.

Superior Ct., 480 U.S. 102 (1987); Helicoptoros Nacionales

de Columbia, S.A. v. Hall, 466 U.S. 408 (1984). Those

cases, however, have generally concerned commercial

matters, rather than intentional torts, and have addressed

corporate parties whose international activities are felt in

discrete commercial transactions rather than in exerting

powers of direct governance over American citizens. In a

sense, this case is one of first impression because it presents

the Court with a situation in which an_ international

association sits offshore and wields almost absolute authority

over a State citizen’s ability to practice his profession, while

deriving substantial benefits from the forum State and this

country as a whole. It is simply not appropriate for such an

entity to assert that the Due Process Clause allows it to

commit intentional tortious acts against an American citizen

without having its conduct subjected to scrutiny in an

American court.

B. The Need for More Well-Defined Standards

of Personal Jurisdiction Outside the Specific

Context of Commercial Transactions

Between an Individual and a For-Profit

Business Entity.

This case also presents the Court with an opportunity

to define more clearly the constitutional standards for

asserting personal jurisdiction in a noncommercial setting.

In virtually every personal jurisdiction case considered by

this Court, and also by the lower courts, the jurisdictional

issue was raised in situations where a for-profit business

entity had engaged in a discrete commercial transaction.

Even in the recent libel cases of Keeton and Calder v. Jones,

465 U.S. 783 (1984), the defendants were owners or

employees of for-profit business enterprises in the

information field, which had substantial commercial contacts

with the forums involved through the marketing and

circulation of their publications. In each case, the issue of

personal jurisdiction turned, at least in part, on a careful

analysis of the specific, for-profit activities engaged in by the

defendant.

This case, by contrast, involves an international

association organized as a non-profit entity. By definition,

therefore, that entity has not derived profit from its

transactions with Petitioner or from transactions that occurred

in the forum state. This is not to say, as explained below,

that Respondent International Amateur Athletic Federation

(IAAF) has derived no benefit from its relationship with

Petitioner or with Ohio and other States. To the contrary,

Respondent IAAF has derived substantial economic and

noneconomic benefits from the control it exercises over

United States athletes, including Petitioner, and from the

exposure and revenues it obtains by its use of the

communications and broadcast media throughout this

country. The important point here, though, is that these

benefits are not narrowly "commercial" in the sense that they

do not derive from discrete commercial transactions or from

the marketing of a specific product.!

In personal jurisdiction cases, a commercial entity is

considered to be inconvenienced because of the expense and

risk of litigating in a distant forum, which may seriously

undermine its ability to do business at all. This

consideration, at least in part, was decisive in the Court’s

decisions that jurisdiction was improper in Asahi and World-

Wide Volkswagen. As the Court stated in World-Wide

Volkswagen:

When a corporation "purposefully avails itself

of the privilege of conducting activities within

the forum State," Hanson v. Denckla, 357

U.S. at 253, it has clear notice that it is

subject to suit there, and can act to alleviate

the risk of burdensome litigations by

procuring insurance, passing the expected

costs on to customers, or, if the risks are too

great, severing its connection with the State.

444 U.S. at 297. The Court thus observed that the

possibility of litigation is a recognized cost of doing business

in a particular State, which necessitates that a corporation

have "clear notice that it is subject to suit there." Id.

Therefore, the Court reasoned, unless a commercial entity

undertakes some affirmative act to subject itself to liability in

' This is also not to say that the harm suffered by Petitioner from

Respondents’ intentional tortious conduct is anything other than economic

in nature; Petitioner sustained and continues to sustain substantial

economic injury in his State of residence from the defamation that

Respondents deliberately directed at him.

a forum State, it would be unreasonable to expose it to

liability there.

In situations that do not involve discrete commercial

transactions, and particularly where the issue is raised by an

international standard-setting organization, these concerns are

more attenuated. An international non-profit association such

as the IAAF is not "doing business," at least in the ordinary

sense of the phrase, although it does derive substantial

economic benefit from its operations. It will continue to set

standards for athletes worldwide, regardless of the outcome

of any lawsuit brought against it. In addition, it is clear that

Respondent IAAF is well aware of its vulnerability to suit,

for it has recently moved to Monaco for the purpose of better

insulating its activites from judicial redress. See Pet. 27

n.l6. It therefore can hardly be “unreasonable” or

"unforeseen" for such an entity to be haled into court for

committing an intentional tort against one of the athletes it

purports to regulate and control.

By their very nature, the actions taken by

international standard-setting associations are more intrusive

into the lives of particular American citizen: than the actions

taken by commercial corporations located in other parts of

the world. By purporting to set mandatory standards for

athletes worldwide, for example, Respondent IAAF has taken

affirmative action to impose its control upon the professional

lives of all the athletes it regulates, many of whom are

American citizens. Its control over their lives includes

substantial influence over their personal and professional

reputations by manipulation of the international

communications and broadcast media. The actions of

Responder; [AAF in this case thus will serve as a model for

various «her organizations that perform similar functions in

other fields. If the ruling below is permitted to stand, then

international standard-setting organizations will know for

certain that they can locate themselves offshore and act with

complete impunity, all while wielding tremendous power

over American citizens and obtaining substantial benefits

from American corporate subsidies. Even when such an

entity specifically aims its intentional wrongdoing at a

particular American citizen in his State of residence, the

citizen is helpless and the State is powerless to call the

tortfeasor to account in any American court. See Pet. 23-28

& nn. 14 & 16.

Given the increasingly international character of

American life at the end of the twentieth century, it is likely

that the trend toward globalism in many fields will only

accelerate more rapidly in the years ahead. The ruling below

creates the potential for great harm to the States and their

citizens in a variety of fields, without any realistic prospect

of judicial redress. For this reason alone, the Court should

grant certiorari in this case in order to define more clearly

the standards for personal jurisdiction as applied to

international entities such as the IAAF.

i The Continuum Between Calder and Keeton,

at One End, and World-Wide Volkswagen

and Asahi, at the Other End, Should Be

Further Defined.

In a diversity case in which personal jurisdiction is at

issue, the court must first inquire whether the assertion of

personal jurisdiction satisfies the law of the State in which

the case is brought. See, e.g., Calder, 465 U.S. at 786 n.5.”

Most of the States confer jurisdiction that extends to the

’ There is no question in this case that the intentional tortious conduct

engaged in by Respondents is encompassed within Ohio’s assertion of its

long-arm jurisdiction. See Ohio Rev. Code §2307.382(A)(6); Ohio R.

Civ. P. 4.3(A)(3).

limits of due process, and therefore the determination usually

turns solely on the proper application of the Due Process

Clause. These requirements were summarized by the Court

in Calder:

The Due Process Clause of the Fourteenth

Amendment to the United States Constitution

permits personal jurisdiction over a defendant

in any State with which the defendant has

"certain minimum contacts ... such that the

maintenance of the suit does not offend

‘traditional notions of fair play and substantial

justice.” Milliken v. Meyer, 311 U.S. 457,

463 (1940)." International Shoe Co. y.

Washington, 326 U.S. 310, 316 (1945).

465 U.S. at 788. The Court has explored the contours of

this "minimum contacts" test in a number of cases over the

years. The cases have established a continuum of sorts, all

with regard to the "relationship among the defendant, the

forum, and the litigation." Shaffer v. Heitner, 433 U.S. 186,

204 (1977); Calder, 465 U.S. at 787. Specifically, this

Court held in World-Wide Volkswagen that the defendant

must "purposefully avail[{] itself of the privilege of

conducting activities within the forum State." 444 U.S. at

297; see also Hanson, 357 U.S. at 253. The proper

interpretation and application of these concepts in different

situations has been the crux of numerous cases, both in this

Court and in the lower Federal and state courts.

This continuum has at one end the Court’s decisions

in Asahi and World-Wide Volkswagen; at the other end are

Calder and Keeton. Asahi held that merely placing a product

into the "stream of commerce" with the awareness that it

could wind up in the forum State, without more, is "not an

act of the defendant purposefully directed toward the forum

State." 480 U.S. at 112. Similarly, World-Wide Volkswagen

held that where the plaintiff carries the defendant’s product,

even a product that is inherently mobile, into the forum

State, the “unilateral activity of those who claim some

relationship with a nonresident defendant cannot satisfy the

requirement of contact with the forum State." 444 U.S. at

298 (quoting Hanson, 357 U.S. at 253). Thus, where

contact between the defendant and the forum State is

attributable to acts by others that were not directed by the

defendant itself, the Due Process Clause would appear to

provide that the defendant cannot be subject to suit in the

forum State, at least in cases that do not involve intentional

torts.

By contrast, Calder and Keeton held that when a party

is charged with intentional tortious acts that are expressly

aimed at the forum State, the party must "reasonably

anticipate being haled into court there." See, e.g., Calder,

465 U.S. at 790. Both Calder and Keeton were libel suits in

which the defendants were publications (or their reporter

employees) whose circulation included the forum State. The

defendants were found to enjoy direct and substantial

economic benefit from the forum State, and the Court

therefore concluded that it was proper to emphasize the

"effects" of their conduct in the forum State in determining

whether they could be subject to suit there. See Calder, 465

U.S. at 788-89.

In this case, an international organization that does

not itself own or control the national or international news

media, nevertheless made deliberate use of those media to

commit an intentional tortious act against Petitioner, the

effects of which were calculated to be felt most directly in

the forum State where he resides. Respondent IAAF does

not directly control the media in the forum State. It does,

however, obtain substantial economic benefit from the media

in the forum State in the form of increased exposure and

broadcast reverues.’ In this case, moreover, Respondent

IAAF committed an intentional tort that was aimed

specifically at Petitioner and was calculated to harm him in

the forum State of Ohio and worldwide.

The Court has traditionally held that in judging

minimum contacts, "a court properly focuses on 'the

relationship among the defendant, the forum, and the

litigation.’" Keeton, 465 U.S. at 775 (quoting Shaffer, 433

U.S. at 204). The Court’s opinions in both Keeton and

Calder indicate that the relationship among the three entities

is considered quite differently when an intentional tort is

involved, rather than mere negligence, strict liability, or

liability based on the terms of a contract. An intentional tort

directed at a particular individual renders the connection

between the defendant and the forum more substantial.

Keeton, 465 U.S. at 775-776. The specific legal issue

’ At the same time, it must be understood that the IAAF obtains other

substantial benefits from the forum State as well. For example, the IAAF

benefits from the revenues it obtains from American companies, many of

whom do business in the forum state, which take the form both of direct

monetary subsidies and of broadcast revenue. See Pet. 4. Perhaps more

importantly, the IAAF obtains the benefit of virtually complete control

over all track-and-field athletes, including many American citizens and

residents of the forum State, who wish to compete in the international

arena. This control is exercised directly by declaring athletes ineligible

to compete in international competitions for alleged violations of IAAF

rules; it is also exercised indirectly by declaring athletes ineligible if they

dare to compete against so-called "outlaw" athletes during a suspension.

This case demonstrates both forms of control at work, since the IAAF

enforced its invalid suspension of Petitioner by threatening to disqualify

any American athlete who ran in a meet with him, and by pressuring

meet directors into withdrawing invitations for Petitioner to compete in

their meets. The American agent of the IAAF -- Respondent The

Athletic Congress -- carried out the IAAF’s dictates even to the point of

defying controlling orders of the United States courts. See Pet. 12.

presented here is whether the commission of an intentional

tort calculated to have its principal effects in the forum State,

without the further connection of direct control over the

media through which the tort is perpetrated, is enough to

increase the connection between the defendant, the forum,

and the litigation to provide the "minimum contacts" required

by the Due Process Clause.

The Court addressed this issue in Calder in its

analysis of whether personal jurisdiction could properly be

exercised over the defendant employees of the defendant

publication:

Petitioners are correct that their contacts with

California are not to be judged according to

their employer’s activities there. On the other

hand, their status as employees does not

somehow insulate them from jurisdiction....

In this case, petitioners are primary

participants in an alleged wrongdoing

intentionally directed at a California resident,

and jurisdiction over them is proper on that

basis.

465 U.S. at 790. Respondents, of course, are not employees

of the publications that disseminated the defamatory

statements here. On the other hand, Respondents were the

"primary participants in an alleged wrongdoing intentionally

directed at [an Ohio resident,|" and in accordance with

Calder, "jurisdiction over them is proper on that basis." /d.

As explained below, see infra Part II, most of the Federal

and state courts that have considered the issue have

interpreted Calder to indicate that it is the nature and effects

of the tort, and not control of the medium, that determine

whether personal jurisdiction is proper.

At a minimum, therefore, this case presents the Court

with an opportune vehicle to clarify the import of the

spectrum of decisions that have now applied the Due Process

Clause to cases concerning personal jurisdiction over

intentional tortfeasors.

IT. THE RULING BELOW EXEMPLIFIES A DEEP

CONFLICT WITHIN AND AMONG THE

FEDERAL CIRCUIT COURTS AND STATE

HIGH COURTS ABOUT THE PROPER

INTERPRETATION OF THE COURT’S

DECISIONS IN CALDER y. JONES AND

KEETON v. HUSTLER MAGAZINE, INC.

A. The Decision Below Exemplifies a

Continuing Confict Among the Federal

Circuit Courts.

The decision of the court below conflicts with the

decisions of several other Federal Courts of Appeals. For

instance, in Hugel v. McNell, 886 F.2d 1 (1st Cir. 1989),

cert. denied, 494 U.S. 1079 (1990), nonresident defendants

made the supposedly defamatory allegation that the plaintiff

had engaged in illegal securities activities. Although the

plaintiff resided in New Hampshire, the allegations were

made to Washington Post reporters. The Post printed a story

that was eventually carried by different media in New

Hampshire. The First Circuit determined that the nature of

the intentional tort rendered the intervening actions of the

reporters and editors of the Washington Post "irrelevant to

the question of whether New Hampshire can exert personal

jurisdiction over" the defendants. Jd. at 5. The Court held

that the defendants could reasonably expect to be haled into

court in New Hampshire, and the assertion of jurisdiction

satisfied due process. In this case, likewise, the intervening

actions of the international media should be irrelevant to the

question of personal jurisdiction. Respondent IAAF, by

intentionally defaming Petitioner, should reasonably expect

to be haled into court in the State where Petitioner resides,

and where the brunt of the blow would be felt from their

intentional tortious conduct.

In Brainerd v. Governors of the Univ. of Alberta, 873

F.2d 1257 (9th Cir. 1989), the defendant, an official of a

Canadian university, had a telephone conversation with an

official of the Arizona university where the plaintiff was

employed. During the telephone conversation, the defendant

made allegedly defamatory statements about the plaintiff’s

integrity. The Ninth Circuit stated that it is the quality, and

not the quantity, of the contacts between the defendant and

the forum that determine personal jurisdiction. Jd. at 1259.

The court, citing Calder, held that even though the defendant

did not initiate the contact, the defendant knew that the

statements would cause harm in Arizona and thus had "not

presented a compelling case that jurisdiction would be

unreasonable." /d. The same is true in this case:

Respondent IAAF knew and intended that its press release

would cause harm in Ohio, where Petitioner resides, and

worldwide. Respondents thus have not shown. that

jurisdiction would be unreasonable here.

First Am. First, Inc. v. National Ass’n of Bank

Women, 802 F.2d 1511 (4th Cir. 1986), also runs contrary

to the ruling below. That case involved a_ national

membership organization (National Association of Bank

Women or NABW), which had no business address of any

kind in Virginia, and distributed all its publications and other

services from its home State of Illinois. Plaintiff, a Virginia-

based travel agency, solicited business from NABW’s

members, in competition with the IIlinois-based travel agency

approved by NABW. The executive director of NABW

wrote allegedly defamatory letters to NABW members

nationwide about the plaintiff. The Fourth Circuit, citing

Calder, held that "jurisdiction over these defendants can be

exercised constitutionally" in Virginia. The Court stated, as

the basis for its holding, that "[t]he allegedly defamatory

letters, though written in and mailed from Illinois and

distributed throughout the country, were nevertheless directed

in their intended effect at the activities in Virginia of Virginia

residents." Jd. at 1517. Similarly, in this case the

defamatory news announcements by Respondent IAAF,

though released in England and Monaco and distributed

internationally, were directed in their intended effect at the

activities of an Ohio resident. Nonetheless, the Sixth Circuit

found that personal jurisdiction could not be exercised in this

case.

A further case involving defamatory statements

emphasizes the prevailing application of Keeton and Calder

as hinging critically upon the intentional nature of the

tortious conduct. In Burt v. Board of Regents of University

of Nebraska, 757 F.2d 242 (10th Cir. 1985), vacated on

other grounds; 475 U.S. 1063 (1986), a Colorado resident

brought suit against a Nebraska university official for

allegedly making defamatory statements about him in a letter

that was transmitted to Colorado. Extensively citing both

Keeton and Calder, the Court held:

Although the libel in Calder was pursuant to

a commercial enterprise, whereas here the

alleged defamation resulted from a single

letter, we do not find this distinction

significant in view of the Court’s repeated

emphasis in Calder on the intentional nature

of the defendants’ conduct and its calculated

injurious effect in the forum state.

Similarly, in this case the libel resulted from a single press

release that was deliberately calculated to damage Petitioner’s

reputation in Ohio, his State of residence, and worldwide.

The distinction between a press release and letter should not

be seen as significant, however, in view of Calder’s

emphasis on the intentional nature of the conduct and the

injurious effect it was intended to have and did have on its

target in the forum State.

The ruling below thus places the Sixth Circuit at odds

with these other courts in its interpretation and application of

this Court’s decisions in Keeton and Calder. But the extent

of this conflict is shown also by noting that some other

decisions appear to align with the ruling below.

In Madara v. Hall, 916 F.2d 1510 (11th Cir. 1990),

for example, the Eleventh Circuit held that personal

jurisdiction could not be maintained under the Due Process

Clause against an entertainer who was alleged to have

defamed a Florida resident by making statements to a

reporter for circulation in a national magazine. The Court

essentially held that because the alleged tortfeasor was not

himself the publisher of the magazine and did not directly

"control its circulation and distribution," he could not be

sued in the federal courts in Florida, even though he may

have been aware that the magazine with his statements would

be circulated there. /d. at 1519. This ruling is consistent

with the ruling below in this case, but cannot be squared with

the decisions described above.

Similarly, in Core-Vent Corp. v. Nobel Indus. AB, \1

F.3d 1482 (9th Cir. 1993), a different panel of the Ninth

Circuit found no personal jurisdiction in another libel case,

over a strong dissent that would have reached the opposite

conclusion by applying Brainerd. The case arose from

articles published by three Swedish doctors in international

publications on the subject of dental implants. The articles,

which were presumed to have been published at the

defendant’s direction, allegedly defamed the plaintiff, which

is the defendant’s chief competitor in the world market for

dental implants. Suit was brought in federal court in

California, where the plaintiff is incorporated. The majority

held that there was "purposeful availment" under Calder, 465

U.S. at 789, because the alleged libels were intended to

cause harm in the forum State and had their most substantial

economic effects there. 11 F.3d at 1486-87. Yet the

majority went on to conclude that it would be unreasonable

to allow the lawsuit to proceed there. The dissent sharply

disagreed, noting that personal jurisdiction in this case would

comport with the decisions in Calder and Keeton, as well as

with the Ninth Circuit’s own earlier rulings in cases such as

Brainerd. See id. at 1492-95.

In short, the ruling below exemplifies and exacerbates

an existing conflict among and within the Federal circuit

courts. The conflict is over the proper interpretation and

application of this Court’s decisions in Keeton and Calder to

intentional libels perpetrated by deliberate use of the

communications media and other media that are calculated to

cause and that do cause direct harm to the plaintiff’s

reputation in the plaintiff’s State of residence. This case

* The existence of libelous conduct that was intentionally and

purposefully directed at the plaintiff, with full knowledge that the brunt

of its effects would be felt by the plaintiff in his or her State of residence,

distinguishes the case at hand, and the cases described in the text, from

other cases in which the allegedly libelous comments were made in

circumstances that demonstrate no such calculated purpose. Cf. Wilson

v. Belin, 20 F.3d 644 (Sth Cir. 1994) (no jurisdiction found where

comments were made in an _ unsolicited telephone interview);

Ticketmaster-New York, Inc. vy. Alioto, 26 F.3d 201 (ist Cir. 1994)

(same).

merits review to address and resolve this continuing

decisional conflict.

B. This Circuit Split Is Exacerbated by

Numerous Conflicting Decisions by State

High Courts.

The ruling below is also at odds with numerous state

decisions that interpret Keeton and Calder to allow personal

jurisdiction to be exercised over tortfeasors when their

conduct is aimed specifically at a state resident and the harm

occurs at least partly within that State, even if other contacts

with the State are minor or nonexistent.

In Krantz v. Air Line Pilots Ass’n Int’l, 427 S.E.2d

326 (Va. 1993), for example, the plaintiff, a pilot, engaged

for a time in a strike against his employer. He later

withdrew from the strike and applied for a job with another

airline. One of the defendants, another pilot who lived in

New York, recorded a message on his personal computer in

New York that was derogatory to the plaintiff and then sent

it Out over a nationwide computer network centered in

Virginia. That message generated hundreds of further

derogatory comments that prevented the plaintiff from

obtaining employment. The Virginia Supreme Court held

that the defendant’s action taken in New York "was only the

beginning of his plan to [harm the plaintiff]. To execute his

plan, [the defendant] needed other persons to communicate

his message" and intended for them to do so. /d. at 328.

Thus, although the defendant’s only "contact" with the forum

State was his single use of a nationwide computer network

"as a means of furthering his plan to [harm the defendant, |"

that was ruled sufficient to satisfy the Due Process Clause in

view of his intentional tortious conduct. Jd. The same

conclusion should have been reached also in this case, where

Respondent IAAF purposely availed itself of the international

news media as the means to distribute its defamatory

statements into the forum State where they predictably caused

serious harm to Petitioner.

Similarly, in Shaw v. North Am. Title Co., 876 P.2d

1291 (Haw. 1994), the plaintiff was a Hawaii resident who

was negotiating with various creditors to improve his credit

rating. Plaintiff had earlier refinanced a property he owned

in California through a California bank that used the services

of defendant, a California title insurance company. Asa

result of that transaction, the defendant had issued several

checks payable to the plaintiff's creditors. At the plaintiff's

request, however, the checks were sent directly to him. He

held those checks for approximately a year before

transmitting one of them to a creditor, who dishonored it

because in the meantime defendant had transferred its bank

account to a different bank. Plaintiff sued, and defendant

raised the issue of personal jurisdiction. The Court

acknowledged that defendant had not transacted any business

in the State of Hawaii. It nonetheless held that personal

jurisdiction was proper because the complaint alleged

intentional tortious conduct that was calculated to cause

injury in the forum State and the effects of which were felt

there. Jd. (applying Calder). A similarly strict application

of Calder would also uphold the District Court’s decision to

exercise personal jurisdiction over Respondents here.

The conflict in the Federal and state decisions thus

creates a quandary for the States and their residents on the

issue of when personal jurisdiction can constitutionally be

exercised against such intentional tortfeasors. The States’

vital interest in protecting their citizens from injury by

providing a forum in which they can seek redress may be

frustrated, and the protection of their citizens may be

jeopardized, because the standards for exercising personal

jurisdiction are so uncertain as to be incorrectly and

inconsistently applied. This state of affairs is intolerable,

and hence warrants further review in this case.

oe The General Split in the Courts Is

Heightened for the State of Ohio and Its

Citizens, in Particular, by a Direct Conflict

Here Between the Sixth Circuit and the

Ohio Supreme Court.

The disagreement among the Federal and state courts

is especially acute for the State of Ohio and its citizens, for

the Sixth Circuit’s ruling in this case is inconsistent with a

recent decision by the Ohio Supreme Court on the same

issue. The existence of such opposing decisions, if not

harmonized by this Court, can only exacerbate general

concerns about forum-shopping.

Unlike the court below, the Ohio Supreme Court has

broadly construed Keeton and Calder to conclude that

personal jurisdiction is proper whenever "the defendant has

intentionally directed his activity at forum residents, ... and

the ‘effects’ of the activity occur in the forum state."

Fallang v. Hickey, 532 N.E.2d 117 (Ohio 1988) (citing

Burger King and Calder). The Ohio Supreme Court thus

squarely adheres to the "effects" test that this Court laid

down in Calder.

In Fallang, the plaintiff alleged that he had been

libeled by defendant, a South Carolina resident who had

written a letter in South Carolina and mailed it to another

individual in Ohio. The Court acknowledged that the

defendant’s only contact with Ohio was that single letter, but

noted that defendant’s action was intentional and tortious,

and that "any injury to [plaintiff's] reputation has occurred in

Ohio." /d. at 119. Because "the defendant has intentionally

directed his activity at forum residents," and the "effects" of

the activity were felt in the forum State, "a high degree of

unfairness is required to erect a constitutional barrier against

jurisdiction." Id. at 120 (citing Keeton and Calder).

Personal jurisdiction was therefore held to be proper.

Once again, in this case Respondents specifically

targeted their intentional tortious conduct at Petitioner, with

full knowledge that the brunt of its harmful effects upon

Petitioner’s reputation would be felt by him within the State

of Ohio, where he resides. And in this day and age, there is

no principled basis for distinguishing between the deliberate

distribution of a press release through the broadcast and

communications media and the deliberate distribution of a

private letter through the mails, as the First Circuit

essentially held in Hugel, 886 F.2d at 5. Indeed, for

purposes of a defamation action, the former conduct is

almost inevitably more intentionally calculated to harm the

target’s reputation, and is more likely to do so, than the

latter. See also Pet. App. 39a-40a, 42a ("Indeed, the

primary purpose of a press release is to distribute

information to the press for publication."). For that reason,

a faithful application of the Ohio Supreme Court’s decision

in Fallang would lead to a determination that the Due

Process Clause permits the assertion of personal jurisdiction

over Respondents in this case.

The existence of conflicting decisions between the

Federal Court of Appeals and the highest state court with

jurisdiction over the State of Ohio and its citizens presents an

entirely sufficient ground for granting certiorari in this case.

See, e.g., Madsen v. Women’s Health Center, 114 S. Ct.

2516, 2522-23 (1994) (writ of certiorari granted to resolve

conflict between Eleventh Circuit Court of Appeals and

Florida Supreme Court).

CONCLUSION

For the foregoing reasons, as well as those presented

by Petitioner, the amici States respectfully request that the

Court grant a writ of certiorari in this case to review the

decision of the United States Court of Appeals for the Sixth

Circuit.

Respectfully submitted,