Opposition Brief — Wilson ex rel. Wilson v. Brother Records, Inc.

QS

No. 96-1018

In The

Supreme Court of the Unite

October Term, 1996

+

BRIAN D. WILSON, an individual,

by and through Melinda Wilson as Conservator

of the Person and Estate of Brian D. Wilson,

TODD GOLD, an individual,

and

BRAINS AND GENIUS, a California partnership,

Petitioners,

BROTHER RECORDS, INC., a California corporation,

BROTHER TOURS, INC., a California corporation,

and

ALAN JARDINE, an individual,

Respondents.

= —_

On Petition For Writ Of Certiorari

To The Supreme Court Of The State Of New Hampshire

o—

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

.

MICHAEL TABB hs VINcENT H. CHIEFFG

Counsel of Record for Gipson, HorrMan & PANCIONE

Respondents 1901 Avenue of the Stars,

MicHAeEL J. FLYNN Suite 1100

PHiur H. StT1LLMAN Los Angeles, CA 90067

FLYNN, SHERIDAN & TABB (310) 556-4660

One Boston Place,

Suite 1820

Boston, MA 02108

(617) 720-2700

KIMBERLY KIRKLAND

Davip SLAWSKY ~

Upton, SANDERS & SMITH

10 Centre Street,

P.O. Box 1090

Concord, N.H. 03302-1090

(603) 224-7791

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether a state court may constitutionally exercise

personal jurisdiction over out-of-state libel defendants

who wrote a book they knew would injure the non-

resident plaintiffs’ reputation in the forum state, when

the defendants intended to have the book distributed in

the forum state, engaged in promotional activities

designed to increase sales of the book in the forum state

and elsewhere, and had a direct economic interest in sales

of the book in the forum state?

CORPORATE DISCLOSURE STATEMENT

Brother Records, Inc. and Brother Tours, Inc. are Cali-

fornia corporations which are closely held. Neither entity

has a parent company. Neither entity possesses any non-

wholly owned subsidiaries.

TABLE OF CONTENTS

Page

QUESTION PRESENTED. ........-------+seeeeeeeee i

CORPORATE DISCLOSURE STATEMENT .......... ii

STATEMENT OF THE CASE..........-.-:5-e+eeee: 1

REASONS FOR DENYING THE PETITION......... 6

A. The Federal Issue Presented By This Case Is

Fact Specific And Is Controlled By Established

Principles This Court Has Clearly Articulated

in Past Decisions............-esseeeeeeeeeees 6

B. The Supreme Court of New Hampshire’s Rul-

ing Does Not Conflict With Any of The Rele-

vant Decisions of This Court ........-.....-- 9

C. The Supreme Court of New Hampshire’s Deci-

sion Does Not Conflict With Any Decisions of

United States Courts of Appeals.......... et

I ERIE cic cd cccesondsteseseseocsecassescus 18

iv

TABLE OF AUTHORITIES

Page

CASES

Asahi Metal Industries, Co. Ltd. v. Superior Court of

California, Solana County, 480 U.S. 102 (1988) ...12, 13

Buckley v. McGraw-Hill, Inc., 762 F.Supp. 430

EPR BPE on oe oh nba thks Sos hae uae tes veh auee 8

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

ROWERS bdo bono ne al apenas baat ee esee ke 8, 11, 17

Calder v. Jones, 465 U.S. 783 (1984)............. 8, 9, 10

Estabrook v. Wetmore, 129 N.H. 520, 521 A.2d 956

Sk SORE EEE ECP ry OPP e ae eee My eer re 15

Faigin v. Kelly,.919 F.Supp. 526 (D.N.H. 1996) ........ 7

Gray v. St. Martin’s Press, Inc., 929 FSupp. 40

REPRE CHEE da vents $05 chs eee eeu eE Sack 7

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

S| PEC TE er Pere apna me AiR OTE, 10

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

OPE + wi sku Ria che te ce diene eueces 7, 8, 9, 10, 15

McFarlane v. Esquire Magazine, 74 F.3d 1296 (D.C.

Cir.), cert. denied, 117 S.Ct. 53 Se 6 enun'n 14, 15, 16

Moncrief v. Lexington Herald-Leader Co., 807 F.2d

ae Ges SG IE ok i hop ab whan ks dceucceeiate 15

Parsons v. Mains, 580 A.2d 1329 (D.C. | re 15

Reynolds v. International Amateur Athletic Federa-

tion, 23 F.3d 1110 (6th Cir.), cert. denied, 115 S.Ct.

| MTT er er Peer er era on ea 14, 16, 17

World-Wide Volkswagen Corp. v. Woodson, 444 U.S.

ee SEP oko bebe cae cee hek tetera 8, 11, 12

TABLE OF AUTHORITIES - Continued

Page

STATUTES

AA. Cate TPCT B IS-SIGIM) 5 oo ek be bi cka cen 14, 15

Pues. DOV SNOe. © DUE. 6 we cc icnvesncenssesseves 15

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Brother Records, Inc., Brother Tours, Inc. and Alan

Jardine respectfully submit the following Brief In Opposi-

tion to Petition For Writ of Certiorari.

STATEMENT OF THE CASE

Respondents concur in the procedural history of the

case set forth on page 7 of the Petition for Writ of Cer-

tiorari submitted by Petitioners Brian D. Wilson, Todd

Gold and Brains and Genius. Respondents, however,

believe that the Petitioners have neglected to inform the

Court of many important facts necessary for permitting

the Court to determine whether a Writ of Certiorari

should be granted in this case.

This action for defamation and other related torts

arises out of the 1991 publication of Wouldn’t It Be Nice, a

book which labels itself as an autobiography of Petitioner,

Brian D. Wilson (“Wilson”). Wilson is a founding member

of the popular music group, the Beach Boys. The plain-

tiffs below are Respondents Brother Records, Inc., Brother

Tours, Inc. (collectively, “Brother”) and Alan Jardine.

Brother are the corporations through which the Beach

Boys conduct their business activities. Alan Jardine is one

of the members of the Beach Boys band. App. 34, 41.

Although Wouldn't It Be Nice purports to be Wilson’s

memoirs, Wilson has suffered from severe mental illness

since the mid 1960s. App. 45.1! During the 1980s, Wilson

fell under the influence of Eugene Landy, an unorthodox

psychologist who is a defendant below, but who waived

his defense of lack of personal jurisdiction. App. 14-15. In

the name of “therapy”, Landy took control of Wilson’s

music and business interests. After the California Board

of Medical Quality Assurance threatened to commence

disciplinary proceedings because of conflicts of interest,

Landy surrendered his license to practice psychology and

became Wilson’s “business manager”. In either capacity,

according to Respondents’ Complaint, Landy had com-

plete control over all aspects of Wilson’s life. This

resulted in members of Wilson’s family petitioning the

California Superior Court to impose a conservatorship

over Wilson to free him from Landy’s influence. App.

42-43. It also resulted in substantial negative publicity

about Landy in the national media.

With a battle over Landy’s relationship with Wilson

being fought in the courts and the media, Landy recog-

nized that he could use Wilson’s “autobiography” as a

weapon to win the war. Landy realized there was consid-

erable public interest in Wilson’s unusual life, and he

could use such a book to tell his side of the story. A major

theme of the book became that it was the Beach Boys’

exploitation of Wilson’s talent that had caused Wilson’s

mental illness, and that Landy’s unorthodox treatments

! In other legal proceedings Wilson claimed he was legally

incompetent during most of the period recounted in Wouldn't It

Be Nice. App. 45. In 1992, shortly after the book was published,

the California Superior Court appointed a conservator for

Wilson’s person and estate. App. 69.

were necessary to save Wilson from his band mates. App.

44.

Landy and Wilson also viewed the autobiography as

an opportunity to make money. They formed a new busi-

ness entity, Petitioner Brains and Genius, a partnership,

to produce the book and have it published. To attract a

publisher, they distributed a proposal to numerous pub-

lishing houses which emphasized the national market for

a book about Wilson and the Beach Boys. The Proposal

emphasized that hundreds of millions of Beach Boys’

recordings had been sold throughout the country, that the

Beach Boys were one of the most popular and profitable

touring attractions in music, and that dozens of articles

on the Beach Boys had appeared in national magazines.

App. 172-173. The publisher of an autobiography of Brian

Wilson, the Proposal argued, could exploit this huge mar-

ket for information and gossip about one of the country’s

most popular rock bands. The proposal also emphasized

that Landy and Wilson were willing to participate in a

“full publicity tour” to assist the marketing of the fin-

ished work. App. 174.

As a result of the Proposal, Brains and Genius signed

a publishing agreement with Harper & Row, Inc. the

predecessor of Respondent HarperCollins Publishers, Inc.

(“HarperCollins”). That agreement is further evidence

that the Petitioners intended to distribute Wouldn't It Be

Nice nationally. In the publishing agreement Brains and

Genius granted HarperCollins the exclusive right to dis-

tribute the book “throughout the United States”. App

135. Wilson agreed to “participate in a four-week author

promotion tour covering a minimum of twelve cities”

when the book was initially published. He was also obli-

gated to participate in a satellite tour, to make appear-

ances on major network television shows and to appear at

a trade show convention to publicize the book. App.

138-139. Moreover, if the publisher decided to publish a

trade paperback edition, Wilson was required to perform

a second publicity tour. Id. Brains and Genius, under the

contract, would receive a royalty equal to a percentage of

the suggested customer’s price or the amount received by

the publisher for each copy of the book sold. App.

140-143.

Brains and Genius also entered into a contract with

Petitioner Todd Gold (“Gold”), a professional writer.

Gold was hired to research and write the manuscript and

was required to insert any “changes, editions, elimina-

tions” Wilson and/or Landy deemed necessary or desir-

able. App. 120. Gold knew he was supposed to create a

book that would generate national interest. He partici-

pated in the creation of the Proposal and the term of his

services was to last “until the general release of the

Autobiography through normal retail channels in the

United States”. App. 119-120, 167. Further, Gold’s con-

tract, like Brains and Genius’ publishing agreement, gave

Gold a personal financial stake in every copy of the book

sold in New Hampshire and elsewhere. Gold was entitled

to one third of the “net income” derived from the book,

which included one third of the royalties Brains and

Genius received from nationwide book sales. App. 123.

In its final form, Wouldn’t It Be Nice was the type of

sensational “kiss and tell” book foreshadowed by Brains

and Genius’ proposal. Its dust jacket promised readers

that they would learn “the truth about the rumors and

myth” concerning the Beach Boys, as well as “the bitter

infighting among Brian and the Beach Boys, which con-

tinues to this day”. App. 178. The book is filled with

gossip about the band and the Beach Boys are depicted in

an unflattering light, to say the least.2 Much of what is

depicted in the book, however, is false. Freed from

Landy’s influence, even Wilson, in subsequent legal pro-

ceedings, admitted that much of the book was “garbage”.

He has used even stronger epithets to describe the work.

App. 51-52.

Wilson did tour in support of the book. He appeared

on national television shows to publicize the “autobiogra-

phy” and conducted numerous interviews. Although

Wilson did not actually set foot in New Hampshire as

part of the publicity tour, some of the print and radio

interviews he did in support of the book were directed to

the New England audience, and some were broadcast

within New Hampshire. The Complaint alleges that some

of these interviews repeated the defamatory allegations.

App. 46. Thousands of copies of the book were distrib-

uted in the state, and at the time the Complaint was filed,

the book was still available in New Hampshire libraries

and bookstores. App. 46.

Based on the evidence summarized above, the

Supreme Court of New Hampshire concluded that each

of the Petitioners “deliberately exploited the New Hamp-

shire market”. App. 32. Consistent with this conclusion, it

2 A summary of the statements in the book alleged to be

defamatory is found in paragraph 22 of the Complaint. App.

47-51.

found that it was reasonably foreseeable that the Peti-

tioners would be sued in New Hampshire in connection

with the publication of Wouldn't It Be Nice, and that each

of the Petitioners had sufficient contacts with New

Hampshire to justify the exercise of jurisdiction. App.

33-34.

REASONS FOR DENYING THE PETITION

A. The Federal Issue Presented By This Case Is Fact

Specific And Is Controlled By Established Princi-

ples This Court Has Clearly Articulated In Past

Decisions

Respondents admit there are interesting aspects to

this case, particularly since it concerns individuals who

are well known to the public. Wouldn’t It Be Nice is

literally replete with sex, drugs and rock ’n roll. But an

interesting case is not the same thing as an important

case, and this case does not raise issues sufficiently wor-

thy of this Court’s attention. The constitutional issue

arises from a fact pattern which does not frequently

occur. Moreover, the issues can easily be decided by

applying established jurisdictional principles which have

been plainly articulated in the Court’s prior precedents.

A decision in this case is unlikely to add anything to this

Court’s jurisprudence on the requirements of personal

jurisdiction.

The issue raised by this case - whether a non-resi-

dent author can properly be sued in a jurisdiction which

is not the residence of the plaintiff or the forum most

closely connected with an allegedly libelous work — is one

which infrequently arises. Such controversies are rare

because most defamation actions are commenced in the

plaintiff’s home forum, and most states have enacted

borrowing statutes which apply the statute of limitations

of the plaintiff’s home jurisdiction, providing little reason

to institute suit in a foreign forum. In those unusual cases

where a non-resident libel action is instituted, whether

state courts can exercise personal jurisdiction over the

non-resident author is usually a question of little practical

significance. If the author is an employee of the publisher

or distributor, the latter is liable for the author’s work

under respondeat superior, the standard for liability is

identical, and under Keeton v. Hustler Magazine, Inc., 465

U.S. 770 (1984), there is usually jurisdiction over the

publisher or distributor. Thus, it is only in cases like this

one, where the author has independently contracted with

the publisher, and their standards of liability may be

different, that jurisdictional questions regarding the

author become significant.

The rarity of this issue arising is demonstrated by the

fact that more than a dozen years after this Court’s deci-

sion in Keeton, this is the first time any appellate court has

examined the constitutionality of exercising jurisdiction

over a non-resident author in a libel action filed by a non-

resident. Indeed, prior to the Supreme Court of New

Hampshire’s decision in this case, the only three reported

decisions on this issue were from the District Court for

the District of New Hampshire. See Gray v. St. Martin’s

Press, Inc., 929 F.Supp. 40, 47-48 (D.N.H. 1996) (New

Hampshire had jurisdiction over author who claimed that

a Florida resident, a former Washington lobbyist, had

improperly influenced national politicians). Faigin v.

Kelly, 919 F.Supp. 526, 532-533 (D.N.H. 1996) (New

Hampshire had jurisdiction over authors of an auto-

biography of a football quarterback who never played in

New Hampshire); Buckley v. McGraw-Hill, Inc., 762

F.Supp. 430, 436-439 (D.N.H. 1991) (New Hampshire had

jurisdiction over Business Week editors and reporters

who collaborated on an article concerning a Pennsylvania

executive). Petitioners’ claim that an important constitu-

tional issue is at stake cannot be accepted when the issue

has almost never been reported.

A novel factual scenario may still give rise to an

important case if the federal issues have never been con-

sidered by the Court, or the area requires elucidation

because of conflicting precedents or new developments.

But that is not the case here. The Court has addressed

jurisdictional problems which arise in multi-state libel

actions in Keeton and Calder v. Jones, 465 U.S. 783 (1984).

The parties actually agree that the Court’s prior jurisdic-

tional precedents, Calder, Keeton, Burger King Corp. v.

Rudzewicz, 471 U.S. 462 (1985) and World-Wide Volkswagen

Corp. v. Woodson, 444 U.S. 286 (1980) state the principles

which apply to this case and neither side urges the Court

to reconsider its prior rulings. The principle disagreement

is whether the Supreme Court of New Hampshire prop-

erly applied those principles to the specific facts in this

case, and whether the evidence supported that court’s

conclusion that Petitioners had deliberately exploited the

New Hampshire market.

These are the types of issues which do not require the

intervention of the United States Supreme Court. It is

well established that this Court’s function is not merely

to review the decisions of the nation’s appellate courts for

potential errors. Yet that is precisely what the Petitioners

seek here. They ask this Court personally to apply the

standards it has previously enunciated to insure the

Supreme Court of New Hampshire properly performed

its job. When such an exercise will neither lead to further

development of the law, or provide guidance to the

nation’s courts on issues they will regularly address,

granting a writ of certiorari would constitute a waste of

this Court’s valuable resources.

B. The Supreme Court of New Hampshire’s Ruling

Does Not Conflict With Any of The Relevant Deci-

sions of This Court

Petitioners argue that the lower court’s decision con-

flicts with this Court’s precedents because neither Calder

or Keeton expressly authorized the exercise of jurisdiction

over non-resident authors in these circumstances within

the four corners of those decisions. They assert that the

jurisdictional bases described in Keeton and Calder are

limited to the specific facts in those cases. Thus, Peti-

tioners argue that Keeton limits a non-resident plaintiff’s

ability to bring a libel action against non-resident defen-

dants to those media companies who continuously

engage in the sale of thousands of copies of their product

within the forum. Similarly, according to the Petitioners,

an out-of-state author can only be successfully sued in

the single jurisdiction which was the “focal point” of an

allegedly defamatory work and where the bulk of harm

caused by the work occurred.

There is no question that the factors identified by the

Petitioners were relevant factors which the Court relied

10

upon in making its decision in those cases. But nothing in

either Keeton or Calder indicated that those decisions

staked the furthest boundary of personal jurisdiction in

multi-state defamation claims. Both cases’ unanimous

decisions strongly suggest that this Court recognized that

the exercise of personal jurisdiction in those situations

was well within “the traditional notions of fair play and

substantial justice” which this Court has outlined since its

decision in International Shoe Co. v. Washington, 326 U.S.

310, 316 (1945).

The Supreme Court of New Hampshire’s decision is

completely consistent with the principles of Keeton and

Calder. In Keeton this Court recognized that a state which

might not have the most direct connection with a libel

plaintiff may still have a substantial interest in hosting a

libel claim based on a national publication. 465 U.S. at

775-777. In particular, the Court recognized that although

a greater quantity of harm might have occurred in other

jurisdictions, the circulation of defamatory material in

New Hampshire constitutes tortious conduct within the

state which New Hampshire has an interest in deterring.

Id. at 776-777. On the very same day, this Court also

recognized in Calder that jurisdiction could properly

attach over an out-of-state author or editor whose only

contact with the jurisdiction was the ability to destroy a

reputation within the state. 476 U.S. 788-790. Although in

the specific case before it the Court noted that the brunt

of the injury caused by the defendants’ actions would

likely be felt in the forum, it also made it plain that “[a]n

individual injured in California need not go to Florida to

seek redress from persons who, though remaining in

Florida, knowingly caused the injury in California”. Id. at

11

790. Where the Petitioners knew their work would be

circulated in New Hampshire and also knew that such

circulation would damage the Respondents’ reputation in

that state, the same logic compels a finding of jurisdiction

here.

The Supreme Court of New Hampshire’s decision is

also consistent with this Court’s holdings in non-libel

cases. Although HarperCollins was the party that actu-

ally distributed Wouldn't It Be Nice in New Hampshire, it

was the Petitioners who “manufactured” the product

HarperCollins distributed. The publishing contract gave

Brains and Genius control over the final content of the

book. App. 137. Thus, when Petitioners’ product tor-

tiously caused injuries in the jurisdiction into which it

was shipped, modern jurisdictional principles clearly

establish that the New Hampshire courts could properly

hold the product's creators responsible for the damage. In

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at

297-298, this Court stated that when a commercial actor

attempts

“to serve directly or indirectly the market for its

products in other States, it is not unreasonable

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

allegedly defective merchandise has been a

source of injury to its owners or to others. The

forum State does not exceed its power under the

Due Process Clause if it asserts personal juris-

diction over a corporation that delivers its prod-

ucts into the stream of commerce with the

expectation that they will be purchased by con-

sumers in the forum State”.

See also Burger King v. Rudzewicz, 471 U.S. 462, 473 (1985).

There is no reason why this well-recognized theory of

12

jurisdiction would only permit states to exercise jurisdic-

tion over the creators of automobiles, defective

appliances and boilers, but not books. The Supreme

Court of New Hampshire’s decision was consistent with

the principles stated in World-Wide Volkswagen.

Notwithstanding clear precedents permitting the

New Hampshire court's action, Petitioners assert that the

lower court’s decision is in conflict with Asahi Metal

Industries, Co. v. Superior Court of California, Solana County,

480 U.S. 102, 110-113 (1988). There are several difficulties

with this argument. First, the portion of Asahi Metal

which Petitioners rely upon, Part II-A of Justice O’Con-

nor’s opinion, was not adopted by the entire Court and is

only a plurality decision. Second, Asahi Metal is factually

distinguishable. There, the defendant was the manufac-

turer of a valve stem, which was purchased by a manu-

facturer of tire tubes, whose product was in turn

purchased by a manufacturer of tires, which product was

in turn purchased by Honda for incorporation into a

motorcycle. Honda itself appears to have shipped the

finished motorcycle into the United States through a dis-

tributor. The defendant, accordingly, was several times

removed from the entity which introduced the product

into the state, and appears to have had little input into

whether its product would be introduced into the United

States. Certainly, it did not contract with the entity that

actually introduced the finished product to the forum. In

contrast, the Petitioners designed their product for

national consumption, knew their product would be dis-

tributed in the forum state, and took active steps to

market their product to consumers who lived in New

13

Hampshire through national and regional publicity. Fur-

ther, the valve stem manufacturer’s economic interest

ended when he sold the valve stems in Taiwan. But

Petitioners’ economic interest remained after Harper-

Collins began distributing the book in New Hampshire.

Each time the book was sold, each Petitioner was entitled

to a royalty payment. The plurality in Asahi Metal

asserted that jurisdiction should not attach when a defen-

dant merely placed his product in the stream of com-

merce and made no effort to direct it to particular

consumers. The case at bar is a far cry from that scenario.

Perhaps most important, in Asahi Metal even the plu-

rality recegnized that a different result should occur

when the defendant’s conduct indicated “an intent or

purpose to serve the market in the forum state”. 480 U.S.

at 112. The Supreme Court of New Hampshire speci-

fically found “the defendants deliberately exploited the

New Hampshire market”. App. 32. This factual conclu-

sion is sufficient to constitute “purposeful availment”

even under the more rigorous test proposed by the plu-

rality in Asahi Metal. Thus, even if this Court were

inclined to revisit the issue of what type of conduct is

necessary for jurisdiction to attach under the “stream of

commerce” theory, this is not the case to do it. Sufficient

factual findings support jurisdiction under any of the

tests which have been proposed.

As noted above, Petitioners’ real dispute is not with

the constitutional principles applied by the Supreme

Court of New Hampshire, but with their factual conclu-

sion that Petitioners deliberately intended to exploit the

New Hampshire market. Although this Court has the

power to decide whether the highest court of a state

14

reached a permissible factual conclusion, the Court's

resources should simply not be devoted to such a review.

C. The Supreme Court of New Hampshire’s Decision

Does Not Conflict With Any Decisions of United

States Courts of Appeals

The Petitioners’ principal argument for granting cer-

tiorari is that the Supreme Court of New Hampshire’s

decision conflicts with two decisions of United States

Courts of Appeal, McFarlane v. Esquire Magazine, 74 F.3d

1296 (D.C. Cir.), cert. denied, 117 S.Ct. 53 (1996) and

Reynolds v. International Amateur Athletic Federation, 23

F.3d 1110 (6th Cir.), cert. denied, 115 S.Ct. 423 (1994). A

quick review of these cases will demonstrate that

McFarlane did not reach the constitutional issue and was

not even decided on a federal issue, while the fact situa-

tion in Reynolds was substantially different than the one

posed by the present case.

McFarlane was a libel claim brought by a former

National Security Advisor in the District of Columbia due

to the publication of an article in Esquire which accused

him of being an agent for Israeli intelligence services.

Although the Court of Appeals affirmed the District

Court’s conclusion that the District of Columbia could

not exercise personal jurisdiction over a New York

author, neither Court did so because the exercise of juris-

diction would offend the Due Process Clause. Instead, the

action was dismissed on “state law” grounds: the non-

resident author was not subject to service of process

under the District of Columbia’s long-arm statute, D.C.

Code 1981 § 13-423(a). 74 F.3d at 1300-1301.

ai

15

Unlike many long-arm statutes, the District of

Columbia’s statute does not extend to the full limits

permissible under the United States Constitution. Parsons

v. Mains, 580 A.2d 1329, 1331 (D.C. 1990).3 The statute did

not extend jurisdiction to persons whose tortious conduct

caused injury within the District unless the person

engaged in an act or omission within the District.

McFarlane could not prove that the author of the maga-

zine article had performed or failed to perform any action

within Washington D.C. and his inability to provide this

factual predicate deprived him of the ability to use the

District’s long-arm statute.

A similar statutory ground for declining jurisdiction

does not exist here. Indeed, the case McFarlane relied

upon for holding that a non-resident defendant must

perform some act or omission within the District, Mon-

crief v. Lexington Herald-Leader Co., 807 F.2d 217, 221 (D.C.

Cir. 1986) expressly distinguished New Hampshire’s

long-arm statute from the District’s. The New Hampshire

statute, N.H. Rev.Stat.Ann. § 510:4, does extend to the full

limits of the U.S. Constitution. Keeton, 465 U.S. 770, 774,

n.4; Estabrook v. Wetmore, 129 N.H. 520, 522, 521 A.2d 956,

958 (1987). Indeed Petitioners have conceded that they

° The District of Columbia Court of Appeals has recognized

that one part of the District’s long-arm statute does extend to

the limits of due process, § 13-423(a)(1) (permitting service of

process when a ciaim for relief arises from a person’s

“transacting any business” in the District of Columbia). In

McFarlane, however, the plaintiff did not assert jurisdiction

under subsection (1). He claimed personal jurisdiction attached

under §§ 13-423(a)(3) and 13-423(a)(4), two sections of the long-

arm statute which did not extend to the full limits of the

Constitution. 74 F.3d at 1300.

16

are amenable to service of process under the New Hamp-

shire long-arm statute. App. 5, 25. Thus, there is no

conflict between McFarlane and the New Hampshire

court’s decision.

In Reynolds the Sixth Circuit refused to find the

author of an allegedly defamatory press release that was

republished in Ohio amenable to that state’s jurisdiction.

The key facts in that case are so different, however, that

there is no conflict with the opinion. In Reynolds an inter-

national athletic association based in London, England

issued a press release stating that a Paris laboratory had

found evidence that a U.S. athlete had improperly used

drugs in a Monte Carlo track meet. The press release was

picked up by various U.S. publications and republished

in the athlete’s home state of Ohio. He sought to obtain

jurisdiction over the athletic association for defamation

and other torts which arose out of the association’s

actions against him.

In Reynolds, though, the defendant had no connection

with the state of Ohio and it was completely through the

acts of third parties with whom it had no affiliation that

the allegedly defamatory remarks were republished.

Unlike here, the defendant did not have a contract with

an agent to make sure the defamatory information was

circulated within the forum jurisdiction. Nor did the ath- |

letic association issue its statement as part of pre-con- |

ceived commercial venture in which the athletic

association intended to receive revenues from the dissem-

ination of the information in the forum. And certainly the

athletic association did not receive a cash royalty each

time the press release was republished within the juris-

diction. In short, unlike the case at bar, there was no

icici

17

evidence in Reynolds that the defendant intended to com-

mercially exploit a market within the forum state.

Contrary to the Petitioners’ assertions, the distribu-

tion of Wouldn’t It Be Nice within New Hampshire was

not “merely foreseeable”, it was deliberate. It was part of

a commercial venture to profit from the provision of

gossip. This court has recognized that where commercial

actors “purposefully derive benefit” from their interstate

activities, it is not unfair to require thern to account in

other states for the consequences that arise proximately

from such activities. Burger King v. Rudzewicz, 471 U.S. at

474. That is precisely the action the Supreme Court of

New Hampshire took when it affirmed the Superior

Court’s jurisdiction over the Petitioners. Such action does

not conflict with any opinion of this Court or any deci-

sion of any other appellate court, federal or state.

+

18

CONCLUSION

For the reasons set forth above, the Writ of Certiorari

should be denied.

Respectfully submitted,

MICHAEL TABB

Counsel of Record

MICHAEL J. FLYNN

Puiur H. STi1LLMAN

FLYNN, SHERIDAN & TABB

One Boston Place, Suite 1820

Boston, MA 02108

(617) 720-2700

VINCENT H. CHIEFFO

Gipson, HoFFMAN & PANCIONE

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Suite 1100

Los Angeles, CA 90067

(310) 556-4660

KIMBERLY KIRKLAND

Davip SLAWSKY

Upton, SANDERS & SMITH

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Concord, N.H. 03302-1090

(603) 224-7791