# Opposition Brief — Wilson ex rel. Wilson v. Brother Records, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0005%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1997 - **Citation:** 520 U.S. 1103 ## Text 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 1901 Avenue of the Stars, Suite 1100 Los Angeles, CA 90067 (310) 556-4660 KIMBERLY KIRKLAND Davip SLAWSKY Upton, SANDERS & SMITH 10 Centre Street, P.O. Box 1090 Concord, N.H. 03302-1090 (603) 224-7791 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0005%3A2. Public record. Not legal advice.