Opposition Brief — R.J. Reynolds Tobacco Co. v. Tuazon (No. 05-1525)

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| FILED

NOV 8 - 2006

OFFICE OF THE CLERK

SUPREME COURT, U.S.

No. 05-1525

=== EEE

IN THE

Supreme Court of the United States

R.J. REYNOLDS TOBACCO COMPANY, PETITIONER

Nito D. TUAZON

ON PETITION FOR A WRIT OF CERTIORARI

10 THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

DEFPAK GUPTA

BRIAN WOLFMAN

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street, NW

Washington. DC 20009

(202) 588-1000

PETER K. STRIS

RADHA A. PATHAK

WHITTIER LAW SCHOOL

3333 Harbor Boulevard

Costa Mesa. CA 92626

(714) 444-4141]

JEAN-CLAUDE ANDRE

Counsel of Record

IVEY, SMITH & RAMIREZ

2602 Cardiff Avenue

Los Angeles, CA 90034

(310) 558-0932

SHAUN P. MARTIN

UNIVERSITY OF SAN DIEGO

SCHOOL OF LAW

5998 Alcala Park

San Diego, CA 92110

~ (619) 260-2347

November 2006

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QUESTION PRESENTED

Whether a court’s exercise of general jurisdiction offends due

process where the defendant’s contacts with the forum state

include a permanent physical office and workforce of 45

full-time employees; extensive political activity in the state,

including organizing local opposition to proposed city and state

regulation; funding of medical research; advertising in purely

local publications; substantial in-state business, including

$145-240 million in annual net sales and a nearly one-third

market share; and a license to do business in the state for over

60 years.

TABLE OF CONTENTS

QUESTION PRESENTED ........... |e are

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REASONS FOR DENYING THE WRIT ............-- 6

A. The Question Presented Was Neither Raised Nor

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B. There Is No Conflict Over the Question Whether

“Sales-Related Activities” May Support General

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C. The Rule That Reynolds Advocates Is Unsupported

By This Court’s Cases and Would Be Unworkable

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TABLE OF AUTHORITIES

CASES

Aviation West Corp. v. Dep’t of Labor & Indus.,

SOOT. TO CW. BSFOD oid sv eccdeceveseveserss 3

Alpine View Co. v. Atlas Copco AB,

OS F328 20G CCAS DOOD) ooo cc cnccesecsaecsn nee. 1]

Ass'n of Washington Pub. Hosp. Districts v.

Philip Morris Inc., 241 F.3d 696 (CA9 2001) ......... 3

Associated Transp. Line, Inc. v. Productos Fitosanitarios

Proficol El Carmen, SA, 197 F.3d 1070 (CA11 1999)

ee ee ee re eee PO ee. Ptr er ee 11-12

Bancroft & Masters, Inc. v. August Nat’l Inc.,

Peer Oe Pe SOD os oka beni reisccpereenns 5

_ Bearry v. Beech Aircraft Corp.,

CFS Fie FPO alee BOOED 6 ov ces wah aoe neSiee aes 11

Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985)... 15

Glater v. Eli Lilly & Co., 744 F.2d 213 (CAI 1984) ...... 9

Helicopteros Nacionales de Colombia v. Hall,

SD i ON Fok ecsevncsddsrhesvne ine tay ae

Int | Shoe v. Washington, 326 U.S. 310 (1945) ...... 12, 13

Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984)

Pee Pe Ere eS POTEET ee re 14-15, 17

Kimball ex rel. Kimball v. RJ Reynolds Tobacco Co.,

No. C03-664JLR, 2006 WL 1148506

OWT dae WONG PUNE AO, ZOO) cc vircciwicevevessee

Kulko v. Superior Court of Cal., 436 U.S. 84 (1978) ..

Madara v. Hall, 916 F.2d 1510 (CA11 1990) .......

Nichols v. GD Searle & Co.,

P91 F.20 1393 (CAG 99S) «oe cece anes then nek <n

Northwest Laborers-Employers Health & Sec.

Trust Fund v. Philip Morris, Inc.,

58 F. Supp. 2d 1211 (W.D. Wash. 1999) ..........

Perkins v. Benguet Consol. Mining Co.,

Se) TERETE TEE

Ratliff v. Cooper Labs, 444 F.2d 745 (CA4 1971) ....

Regence Blueshield v. Philip Morris Inc.,

SP A, COE CRIN CUED ocr desc becvescees

R.J. Reynolds Tobacco Co. v. McKenna,

445 F. Supp. 24 1252 (W.D. Wash. 2006) .........

Seymour v. Parke Davis & Co.,

I I SOO ise ek vances weses

TRW Inc. v. Andrews, 534 U.S. 19 (2001)...........

United States v. United Foods, 533 U.S. 405 (2001)...

Youakim v. Miller, 425 U.S. 231 (1976) ...........

TREATISE

Charles A. Wright & Arthur R. Miller,

Federal Practice & Procedure (2002)

RESPONDENT’S BRIEF IN OPPOSITION

The fact-bound interlocutory ruling below—that the

exercise of general jurisdiction over petitioner R.J. Reynolds in

Washington State does not offend due process—was based on

the combination of a// of Reynolds’ in-state activities, including

its physical and political contacts, and not only its sales

activities. “It is abundantly clear,” the court of appeals

explained, “that a corporation does not necessarily submit to

general jurisdiction in every state in which it merely sells a

product. But, jurisdiction here is not predicated on sales, or

even the notion of substantial sales, alone. The minimum

contacts are established by the confluence of Reynolds’

physical, economic, and political presence and the company’s

myriad of other activities in the state.” Pet. App. 16a-17a.

Reynolds’ petition, however, is premised on a distinction

between “sales-related activities,” which Reynolds contends are

never sufficient to support general jurisdiction, and activities

that are “unrelated to sales.” Pet. 12. The petition urges the

Court to “announce[] a ‘bright-line’ jurisdictional rule” that a

defendant’s activities, no matter how extensive, will always be

insufficient if they happen to relate to sales. Jd. at 23.

Reynolds never argued for such a categorical rule in the court

below, and the question presented is therefore not properly

preserved for review by this Court. Moreover, because the

court of appeals’ decision was expressly based in part on

Reynolds’ non-sales contacts with Washington, the question

whether sales alone may support general jurisdiction is not even

implicated by this case.

In an attempt to make the question presented fit the facts,

Reynolds employs a nebulous term, “sales-related activities,”

that apparently encompasses everything from sporadic sales or

purchases in the forum state to the wide-ranging combination

of contacts at issue here: a permanent office and workforce of

45 full-time employees; substantial political activity at both the

state and local level; the funding of medical research;

advertising in purely local publications; hundreds of millions of

dollars in annual revenue; a nearly one-third share of the local

market; and a continuous license to do business in the state for

over 60 years. Terminology aside, the bottom line is that

Reynolds can point to no appellate decision, state or federal,

that has either rejected general jurisdiction on the basis of

contacts as substantial and continuous as these or embraced the

bright-line rule that Reynolds advocates.

There is no conflict concerning the question presented. All

that remains, therefore, is Reynolds’ disappointment with the

court of appeals’ eminently sensible application of the settled

law of personal jurisdiction to the particular facts demonstrating

Reynolds’ presence in Washington State. This Court should

deny the petition.

STATEMENT

1. R.J. Reynolds’ Contacts with Washington State. RJ.

Reynolds manufactures and markets cigarettes worldwide.

Reynolds is incorporated and has its principal place of business

in North Carolina, and its cigarettes are manufactured at

Reynolds’ facilities in Tobaccoville, North Carolina, and

Winston-Salem, North Carolina. Pet. App. 4a; CA9 Excerpts

of Record (ER) 10.

Reynolds has had a continuous presence in Washington

State for over half a century and has been licensed to do

business there since 1940. Pet. App. 4a. Since at least 1949,

Reynolds hag§ advertised in local publications, including the

Seattle Times, the Spokane Spokesman Review, and the Tacoma

News-Tribune. Id. The district court found that Reynolds has

consistently identified Seattle, Washington, as a “key market”

or “emphasis market.” Jd. at 33a. For example, in promoting

its Camel brand in 1998, Reynolds identified Seattle as one of

only four priority markets. Jd. Since 1998, Reynolds’

marketing activities in Washington have been subject to a

consent agreement with Washington’s Attorney General—part

of a global settlement between the tobacco companies and the

states—that prohibits practices such as the use of cartoon

characters in cigarette packaging and paid endorsements in

movies or live concerts. ER 73-74. Even after the global

settlement, Reynolds participated in a court challenge in

Washington involving state regulation of smoking, Pet. App.

16a (citing Aviation West Corp. v. Dep't of Labor & Indus., 980

P.2d 701 (Wash. 1999)), and Reynolds has both initiated and

defended numerous actions in the Washington state and federal

courts. e

Reynolds maintains a permanent physical presence in the

state. Since at least 1998, the company has maintained an

office in Redmond, Washington, and a workforce of as many as

45 fuli-time employees dedicated to promoting its business in

the state. Jd. at 33a. In addition, Reynolds uses warehouse

facilities in Washington State to store and facilitate distribution

of its products. ER 11.

—_

' See, e.g., Regence Blueshield v. Philip Morris Inc., 5 Fed. Appx.

651 (CA9 2001); Ass 'n of Washington Pub. Hosp. Districts v. Philip

Morris Inc., 241 F.3d 696 (CA9 2001); R.J. Reynolds Tobacco Co.

v. McKenna, 445 F. Supp. 2d 1252 (W.D. Wash. 2006); Kimball ex

rel. Kimball v. RJ Reynolds Tobacco Co., No. C03-664JLR, 2006

WL 1148506 (W.D. Wash. April 26, 2006); Northwest Laborers-

Employers Health & Sec. Trust Fund v. Philip Morris, Inc., 58 F.

Supp. 2d 1211 (W.D. Wash. 1999).

Reynolds’ activities in Washington State also go well

beyond standard business activities. In the 1990s, Reynolds

organized local opposition to city and state legislation that

would have banned or limited smoking and cigarette

advertising. Pet. App. 5a. For instance, in 1997, when the

Seattle-King County Board of Health was considering

proposals to restrict indoor and outdoor advertising of tobacco

products, including self-service store displays, Reynolds

distributed bulletins to Washington businesses describing the

proposals as a “misguided attempt at reducing access to youth

tobacco,” and urged retailers and “smokers’ rights groups” to

“speak out” against them. Supp. ER 1:142-45. Since the

1970s, Reynolds has also funded medical research at the

University of Washington about the health-related effects of

smoking. /d. at 1:164.

In both absolute and relative terms, Reynolds’ business in

the State of Washington is substantial. Reynolds has a nearly

one-third share of the Washington market, significantly better

than its national market share of approximately 23%. Pet. App.

4a. From 1998 through 2002, Reynolds sold between 2.5 and

3 million cigarettes in Washington annually, achieving annual

net sales of $145-240 million. Jd. at 4a, 33a. Over that same

time period, Reynolds paid approximately $7.96 million in

taxes to the State of Washington, including “property use,

cigarette excise, corporate income and franchise taxes.” /d.; ER

at 11.

2. Proceedings Below. Respondent Nilo Tuazon was

diagnosed with chronic obstructive pulmonary disorder in 2003

after smoking Salem cigarettes, which are marketed worldwide

by Reynolds, for more than forty years. Pet. App. 4a. After

moving to Washington State from the Philippines, Mr. Tuazon

sued Reynolds in the U.S. District Court for the District of

Washington, alleging that Reynolds participated in a global

conspiracy to suppress information regarding the addictive and

health-related effects of cigarettes. Jd. at 5a. Jurisdiction over

Reynolds was premised on the corporation’s extensive contacts

with the state.

Reynolds filed a motion to dismiss the suit based on lack of

personal jurisdiction and forum non conveniens. The district

court denied the motion. Reynolds sought and obtained

permission to pursue an interlocutory appeal. The court of

appeals, in a unanimous decision, affirmed on both grounds.

Because the forum non conveniens issue is not presented in the

petition, that issue is not further addressed here.

The court of appeals began by reiterating that “[t]he

standard for general jurisdiction is high; contacts with a state

must ‘approximate physical presence.’” Jd. at 7a (quoting

Bancroft & Masters, Inc. v. August Nat'l Inc., 223 F.3d 1082,

1086 (CA9 20600)). The court of appeals also recognized that

“(navigating the territory” of this Court’s general jurisdiction

jurisprudence “requires * * * balanc[ing] the facts of each

case.” /d. at 12a(citing Kulko v. Superior Court of Cal., 436

U.S. 84, 92 (1978)). In concluding that Reynolds’ contacts

with Washington were sufficient to justify general jurisdiction

under the state jurisdiction statute, which requires that a

defendant “participate[] continuously and substantially in the

state’s markets,” id. at 7a-8a, the court observed that “{c]lose

cases exist, but this is not one of them,” id. at 9a.

Turning to the due process “minimum contacts” analysis,

the court offered a thorough survey of the case law and a

discussion of the “breadth and depth of Reynolds’ contacts with

Washington.” /d. at 15a. Because Reynolds did not advocate

a categorical rule barring sales or sales-related activities from

the minimum contacts analysis, the court neither rejected nor

adopted such a rule. Indeed, in dicta, the court speculated that

“limited sales and licensing arrangements alone may be

insufficient to establish jurisdiction” and observed that “a

corporation does not necessarily submit to general jurisdiction

in every state in which it merely sells a product.” Jd. at 16a.

The court instead found general jurisdiction based on the

combination of Reynolds’ contacts with Washington, including

its physical presence, its political activity, its long history in the

state, its local advertising, and other activities. /d. at 10a-17a.

It made clear that “jurisdiction here is not predicated on sales,

or even the notion of substantial sales, alone. The minimum

contacts are established by the confluence of Reynolds’

physical, economic, and political presence and the company’s

myriad of other activities in the state.” Jd. at 16a-17a. The

court also concluded that the exercise of jurisdiction was

reasonable—a holding that Reynolds does not contest

here—because, among other things, Reynolds had “not

identif[ied] any specific hardship” to it of litigating in

Washington. /d. at 18a.

Reynolds sought rehearing en banc. No judge on the court

of appeals requested a vote on whether to hear the matter en

banc, and the petition was denied. /d. at la.

REASONS FOR DENYING THE WRIT

I. The Question Presented Was Neither Raised Nor

Decided Below.

Reynolds asks this Court to grant certiorari to decide

whether “sales-related activities” in the forum state may ever

constitute sufficient minimum contacts to support general

jurisdiction. Reynolds urges the Court to “announce[] a

‘bright-line’ jurisdictional rule” that a corporation’s activities,

no matter how extensive, will always be insufficient if those

activities happen to be related to sales. Pet. 23. But Reynolds

did not raise this issue in the court of appeals and, accordingly,

it is not properly before this Court. See TRW Inc. v. Andrews,

534 U.S. 19, 34 (2001) (“We do not reach this issue because it

was not raised or briefed below.”). The court of appeals,

moreover, did not pass on the question and, in fact, even

speculated in dicta that “sales and licensing arrangements alone

may be insufficient to establish junsdiction.” Pet. App. 16a;

Youakim vy. Miller, 425 U.S. 231, 234 (1976) (“Ordinarily, this

Court does not decide questions not raised or resolved in the

lower court.”’).

Instead of advocating the novel bright-line rule that it now

seeks, Reynolds simply argued in the court of appeals, based on

existing law, that “its activities in Washington are not so

substantial and of such a nature as to justify suit against it on

unrelated causes of action.” Pet. CA9 Opening Br. at 11. To

be sure, Reynolds contended that general jurisdiction is not

justified “merely because a defendant’s products are routinely

sold” in the forum or because of “sales personnel located in the

forum state.” Jd. at 15-16. But nowhere did Reynolds ask the

court of appeals to adopt a categorical rule placing any activity

that might be regarded as “sales-related”—including even

political activity—outside the purview of the minimum contacts

analysis altogether. See United States v. United Foods, 533

U.S. 405, 417 (2001) (declining “to allow a petitioner to assert

new substantive arguments attacking, rather than defending, the

judgment when those arguments were not pressed in the court

whose opinion we are reviewing, or at least passed upon by it.”

(citations omitted)). Far from advocating a categorical rule,

Reynolds acknowledged in its reply brief to the court of appeals

that “the Supreme Court has emphasized time and again that the

i SY

test for personal jurisdiction is not a mechanical one, but rather

demands a case by case examination of whether the exercise of

jurisdiction is reasonable.” Pet. CA9 Reply Br. at 9. Tellingly,

the term “sales-related activities”—a term that Reynolds now

uses to lump together a sweeping range of corporate

activity—never appeared in any of Reynolds’ merits briefs in

the court efappeats- -

II. There Is No Conflict Over the Question Whether

“Sales-Related Activities’ May Support General

Jurisdiction.

In an attempt to manufacture a conflict, the petition places

a large range jurisdictional of contacts under the vague label of

“sales-related activities’ and contends that there is a

“substantial and growing split in the federal circuits on the

question whether such sales-related activities in the forum State

are sufficient minimum contacts to support general

jurisdiction.” Pet. 18. There is no split.

The petition never defines “sales-related activities,” but, as

used by Reynolds, the term apparently encompasses everything

from an individual musician’s “sporadic concert performances”

and “sales of records,” Madara v. Hali, 916 F.2d 1510, 1516

n.7 (CA11 1990) (cited at Pet. 14), to Reynolds’ permanent in-

state office and workforce, extensive in-state political activity,

and funding for medical research (Pet. App. 4a, 15a). In this

manner, Reynolds improperly characterizes cases involving

defendants with few jurisdictional contacts as falling on one

side of a “split,” when in reality, those cases simply represent

one end of a continuum that flows from this Court’s personal

jurisdiction jurisprudence, which depends on the substantiality,

frequency, and permanence of the defendant’s contacts with the

forum state. Thus, the only thing that accounts for the different

outcomes in these cases is their very different facts. No court

of appeals has rejected general jurisdiction where the contacts

are as substantial as they are here.

Moreover, none of the cases cited by the petition adopted

the bright-line rule that Reynolds seeks in its petition. To the

contrary, these cases al] take the same basic approach as the

decision below: They weigh the various contacts—including,

for example, such sales-related contacts as whether the

defendant has a physical salesroom or sales office, the level of

advertising, a license to do business in the state, the number of

employees and their sales-related duties, and the payment of

sales taxes—and compare them to the contacts in prior cases.

The First and Fourth Circuit cases cited in the petition (at

12-13) were all suits against drug manufacturers in which those

courts found general jurisdiction inappropriate based on the

manufacturers’ very minimal promotional activities in the

forum states. In Glater v. Eli Lilly & Co., 744 F.2d 213 (CAI

1984), the First Circuit rejected general jurisdiction because the

defendant had no offices in New Hampshire, was not registered

to do business in New Hampshire, had only “limited

advertising” in professional trade journals that circulated in

New Hampshire, and had only three nonexclusive sales

representatives who lived in New Hampshire. /d. at 214-15.

Moreover, the court noted that “[nJeither the sales

representatives nor Lilly directly sells products in New

Hampshire; rather sales are made to wholesale distributors.”

Id. at 215. In Seymour v. Parke Davis & Co., 423 F.2d 584

(CAI 1970), on which Glater relied, the First Circuit reached

the same conclusion on nearly identical facts:

The defendant * * * maintains no office or

salesroom [in New Hampshire]. It has no

bank account, is not registered to do business,

has designated no agent to receive process,

and has engaged in no litigation except the

present. Its nearest regional office is in

Massachusetts.

Id. at 584.

The Fourth Circuit cases are no different. In Nichols v. GD

Searle & Co., 991 F.2d 1195 (CA4 1993), the court found

general jurisdiction in Maryland inappropriate because the

defendant “ha[d] never maintained an office in Maryland” and

its “only activity in the state in the years prior to these suits”

was that it employed representatives to promote its products;

sales orders, however, “were not placed through them but were

made directly through the company.” /d. at 1198. And in

Ratliff v. Cooper Labs, 444 F.2d 745 (CA4 1971), the court

rejected general jurisdiction in South Carolina over two drug

companies, one of whose “activities in South Carolina [were]

limited to solicitation by mail,” while the other employed only

five representatives whose primary duties in South Carolina

were “the promotion of drugs, not the actual sale of them.” /d.

at 746. Rather than adopt a categorical rule excluding such

contacts because they were sales-related, the court stressed that

“{njeither [defendant] maintains an office in South Carolina,

and neither warehouses goods there * * * * Nor does either

maintain a bank account in the state or advertise in directories

there (although advertisements do appear in national medical

journals which subsequently find their way into the state).” Jd.

at 748 (relying on Sevmour, “a case of remarkable similanty to

the one before us.”).

Notably, each of these First and Fourth Circuit cases

emphasized the lack of contacts that are present here—an in-

state office or warehouse, a license to do business in the state,

purely local advertising, direct sales by in-state

representatives—activities that Reynolds seeks to place under

the umbrella of “sales-related” contacts. These cases thus

provide no support for Reynolds’ categorical rule.

The “sales-related” contacts in the Fifth and Eleventh

Circuit cases cited in the petition were even less significant. In

one, the Fifth Circuit rejected general jurisdiction in Texas over

Beech Aircraft because “Beech has never qualified to do

business nor maintained an agent for service of process in

Texas. Beech has no telephone listing in Texas; it has no

warehouse or manufacturing facilities and has never had a bank

account in Texas, nor has it insured any person in Texas; it

owns no real estate in Texas; it has not paid taxes to the State

of Texas; it has no employees or directors who are permanently

assigned to work in Texas.” Bearry v. Beech Aircraft Corp.,

818 F.2d 370, 372 (CA5 1987). In another, the Fifth Circuit

emphasized the isolated nature of the defendant’s sales

activities rather than the fact that they were related to sales. See

Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 218 (CAS

2000) (the evidence “show[ed], at best, that [the defendant]

sold, on isolated occasions, products to entities located ir.

Texas, that it was party to an agreement to provide Mexican

mines with products that were shipped to Texas before being

shipped to Mexico, that companies used [the defendant’s]

products for projects in Texas, and that [the defendant’s]

personnel made field service visits to Texas between December

1992 and December 1993.”). In Madara, the Eleventh Circuit

held that a New York musician’s “sporadic concert

performances” and “sales of records” in Florida were

insufficient to support general jurisdiction over a libel action,

916 F.2d at 1516 n.7, and in Associated Transp. Line, Inc. v.

Productos Fitosanitarios Proficol El Carmen, SA, 197 F.3d

1070, 1075 (CA11 1999), it held that a Colombian herbicide

manufacturer’s “nine sales to the United States during a four-

year period” were not “constitutionally sufficient to support

genera] jurisdiction.”

Such isolated contacts pale in comparison to Reynolds’

contacts with Washington and refute Reynolds’ claim that those

courts would have decided this case differently. More

importantly, each of the cases supposedly supporting the

claimed conflict all emphasized the absence of sales-related

contacts that are present in this case and made clear that the

extent of the defendants’ sales activities was relevant to the

jurisdictional analysis. Both points are inconsistent with

Reynolds’ categorical rule and demonstrate that no court has

given the question whether certain contacts may or may not be

characterized as “sales-related activities” dispositive

significance in assessing whether a court has general

jurisdiction.

Because there is no conflict over the question presented, the

petition should be denied.

[il. The Rule That Reynolds Advocates Is Unsupported

By This Court’s Cases and Would Be Unworkable

In Practice.

1. Due process is satisfied when personal jurisdiction is

asserted over a nonresident corporate defendant that has

“certain minimum contacts with [the forum] such that the

maintenance of the suit does not offend ‘traditional notions of

fair play and substantial justice.”” Jntn’] Shoe v. Washington,

326 U.S. 310, 316 (1945). When the particular controversy

before the court does not arise out of the corporation’s activities

in the forum state, due process requires that the defendant's

“continuous corporate operations within a state [be] thought so

substantial and of such a nature as to justify suit against it on

causes of action arising from dealings entirely distinct from

those activities.” Jd. at 318.

The twin guideposts for determining whether general

jurisdiction satisfies constitutional limits remain this Court’s

decisions in Perkins v. Benguet Consolidated Mining Co., 342

U.S. 437 (1952), and Helicopteros Nacionales de Colombia v.

Hall, 466 U.S. 408 (1984). In Perkins, a Philippine corporation

“ha[d] been carrying on in Ohio a continuous and systematic,

but limited, part of its general business’”—essentially running

a kind of office-in-exile in Ohio—such that the exercise of

general jurisdiction by an Ohio court was deemed “reasonable

and just.” 342 U.S. at 438. In Helicopteros, by contrast, the

Court concluded that a Colombian corporation’s contacts with

Texas—purchases of helicopters combined with other isolated

contacts—were insufficient to justify general jurisdiction where

the corporation had never “been authorized to do business in

Texas * * * sold any product that reached Texas * * * signed

any contract in Texas * * * had any employee based there * * *

[or] maintained an office or establishment there.” 466 U.S. at

411.

As the decision below explained, in cases that fall between

these guideposts, courts must consider whether the contacts

discussed in Helicopteros and Perkins are present and, to

determine whether the contacts are “substantial” or “continuous

and systematic,” must assess their longevity, continuity,

volume, and economic impact, and the defendant’s physical

presence in the state. Pet. App. 12a. The lower courts adhere

“to the principles set out as bookends by the Supreme Court”

and *fill[{] in the middle ground through a case-by-case review,”

based on comparison with other cases. /d. at 14a n.3; see also

Charles A. Wnght & Arthur R. Miller, Federal Practice &

Procedure: Civil 3d § 1067.4 (2002) (citing a “wealth of

illustrative cases” on general jurisdiction and explaining that

the circuits uniformly require that “the defendant must be

engaged in longstanding business in the forum state, such as

marketing or shipping products, or performing services or

maintaining one or more offices there; activities that are less

extensive than that will not qualify for general in personam

jurisdiction.”).

2. Although Reynolds purports to identify a split in

authority in the application of these guideposts, the real thrust

of Reynolds’ petition is a thinly-veiled attack on this Court’s

time-honored general junsdiction jurisprudence. The petition

argues, for instance, that “[t]here are substantia] reasons to

foreclose litigation in fora that lack any connection to the

subject matter of the lawsuit,” Pet. at 20, and decries the

consequences of a doctrine under which corporations that

“engage in a systematic and ongoing array of advertising,

marketing, and distribution activities” may be subject to suit in

jurisdictions in which those activities occur, id. at 6; see also id.

at 7 (criticizing decisions finding general jurisdiction as

“contrary to the common practice in our courts, under which

litigation is most commonly brought in the jurisdiction in which

the harm occurs.”’).

But this Court’s cases support neither the categorical rule

that Reynolds seeks nor its broad-based attack on the doctrine

of general jurisdiction. To the contrary, the Court has made

clear that “(t]he victim of any * * * tort, may choose to bring

suit in any forum with which the defendant has” the requisite

minimum contacts. Keeton v. Hustler Magazine, Inc.,465 U.S.

770, 780-81 (1984) (emphasis added). Reynolds’ attempt to

identify support for its “sales-related” contacts exception in this

Court’s modei rsonal jurisdiction jurisprudence is thus

unavailing. See x <t. at 10 (citing Keeton and Helicopteros).

In Keeton, the defendant’s only contacts with the forum were

monthly sales of 10,000 to 15,000 magazines. 465 U.S. at 779

& n.l1. The Court speculated that these contacts “may not be

so substantial as to support” general jurisdiction, but did not

suggest a per se rule excluding sales or sales-related contacts.

The most natural reading of this statement is that the contacts

were simply insufficient as a matter of degree, not asa matter

of kind. And in Helicopteros, the defendant had made no sales

in the forum state, a fact that the Court emphasized in finding

that general jurisdiction was unwarranted. 466 U.S. at 411.

Because these decisions treated the quantum of sales as a factor

in the general jurisdiction analysis, if anything, they undermine,

rather than support, Reynolds’ case for a per se exception for

“sales-related” contacts. It should not be surprising, therefore,

that no lower court has embraced such a rule.

More broadly, this Court has repeatedly emphasized that

“talismanic jurisdiction formulas” and “clear-cut jurisdictional

rules” are ill-suited to the minimum contacts analysis. Burger

King Corp. v. Rudzewicz, 471 U.S. 462, 485-86 & n.29 (1985).

“The ‘minimum contacts’ test * * * is not susceptible to

mechanical application; rather the facts of each case must be

weighed to determine whether the requisite ‘affiliating

circumstances’ are present * * * * [T]his determination is one

in which few answers will be wnitten ‘in black and white. The

greys are dominant and even among them the shades are

innumerable.’” Ku/ko v. Superior Court of Cal., 436 U.S. 84,

92 (1978) (internal quotations omitted). Reynolds’ insistence

on a bright-line rule with respect to “sales-related activities”

cannot be reconciled with these statements.

3. Particularly because Reynolds failed to raise the question

presented in the courts below and because no court has adopted

its position, it is unclear precisely what rule Reynolds seeks and

how that rule might apply to the facts of this case. At some

points in its petition, Reynolds appears to advocate a sweeping

rule that would exempt any activity other than manufacturing

or corporate management from the general jurisdiction

minimum contacts analysis. See Pet. 6, 12. Under such a rule,

Reynolds would apparently be subject to general jurisdiction

only in the courts of North Carolina. It is also unclear how

such a rule would operate in suits against other types of

defendants—such as large retailers—-whose business consists

almost entirely of sales. In such cases, general junsdiction

could apparently only be established in the states in which those

businesses are headquartered. With respect to both

manufacturing corporations and retailers, then, an expansive

version of Reynolds’ rule would all but scrap the doctrine of

general jurisdiction.

At other points in the petition, however, Reynolds appears

to ask this Court to grant review to decide a narrower question:

“whether sales of a product are the sort of actions that afford

jurisdiction over a foreign corporation for all purposes.” /d. at

23. But if that is the question presented, then it is not presented

in this case at all because the court of appeals’ decision was

expressly based on contacts other than sales alone, Reynolds’

contacts extend well beyond sales, and the answer to the

question would not affect the outcome of the case.

As this case illustrates, Reynolds’ categorical rule, however

formulated, would create uncertainties and obstacles in cases in

which the alleged injury—such as the health effects of a

particular product or exposure to a chemical—is one that may

develop over time. A plaintiff like Mr. Tuazon, who is a

resident of Washington State but whose disease matured while

he was elsewhere, would have no real choice but to file his suit

in North Carolina or in the state where the injury arose. But for

people who have used a dangerous product such as Reynolds’

over a long period of time and have moved from one state to

another, it may be unclear where the injury arose. In these

circumstances, precluding a plaintiff from filing suit in a state

in which the defendant has continuous and substantial sales-

related contacts—and where the exercise of jurisdiction is thus

both foreseeable and poses no hardship to the

defendant—would create needless satellite litigation over where

the injury arose. As the decision below observed, Reynolds

“ignores the fact of our mobile society.” Pet. App. 19a.’

> The petition, without saying so explicitly, suggests (at 2) that Mr.

Tuazon may have moved to the United States to sue Reynolds. See

also Pet. App. 19a (observing that Reynolds “impugns Tuazon’s

motives for moving to Washington, despite the long immigration

process and the presence of his family in Washington.”). Mr.

Tuazon’s residence, however, is irrelevant. Indeed, for due process

purposes—which concerns the faimess of the forum for the

defendant—this Court has already made clear that a plaintiff need not

have any contact with the forum state, and Washington would thus

have been a proper forum even had Mr. Tuazon continued to reside

in the Philippines. See Keeton, 465 U.S. at 779-80 (“[W]e have not

to date required a plaintiff to have ‘minimum contacts’ with the

forum State before permitting that State to assert personal jurisdiction

over a nonresident defendant. On the contrary, we have upheld the

assertion of jurisdiction where such contacts were entirely lacking.”’).

To be sure, the plainuff's residence is “not completely irrelevant to

the jurisdictional inquiry,” but that is only because the plaintiff's

residence may in some cases “enhance defendant's contacts with the

forum.” /d. at 780 (emphasis added). In any event, “Reynolds does

not identify any specific hardship” it suffers from litigating in

(continued...)

Reynolds’ rule would also inevitably lead to litigation and

uncertainty about another issue: whether a particular

defendant’s activities are properly characterized “sales-related.”

This case offers a good illustration. The court below found

general jurisdiction based not only on Reynolds’ sales

activities, but also on such factors as the company’s extensive

political and lobbying activity and its funding of medical

research. Yet Reynolds apparently views all of these contacts

as “sales-related activities.”

Although litigation concerning jurisdictional questions can

be wasteful and create uncertainty, as Reynolds acknowledges

(at 24-25), those facts strongly counsel in favor of denying the

petition. Reynolds advocates a thoroughly untested categorical

rule, the contours of which are unclear and which, 1f adopted,

would work a radical change in the American law of personal

jurisdiction. A change of this magnitude would be guaranteed

to disrupt the settled expectations of businesses, parties to

contracts, and consumers. Before this Court entertains such a

path-breaking proposal, the lower courts should be given an

adequate and meaningful opportunity to test it. And because no

court has adopted the bright-line rule that Reynolds seeks or

considered contacts as substantial as Reynolds’ contacts in this

case, the lower courts have not been given that opportunity.

This Court’s intervention would, therefore, be unwarranted.

** kK *

(...continued)

Washington, Pet. App. | 8a, which is not surprising given its repeated

appearance in Washington's state and federal courts, see supra note

1, and “has not seriously argued that litigating in Washington is more

of a burden than being in the Philippines,” Pet. App. 19a.

Even assuming some need to clarify aspects of the law of

general jurisdiction, this case offers a particularly poor vehicle

for doing so. Because Reynolds did not preserve its position

below, because the question presented is not implicated by the

facts of this case, and because the !ower courts are not in

conflict, review by this Court is unwarranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

DEEPAK GUPTA