Good evening, and welcome to the final round of the Ames Moot Court Competition. My name is Stacy Livingston. I'm the Vice President of the Board of Student Advisors and one of the primary organizers of the Ames Moot Court Competition, along with the inimitable Yvonne Smith, Julia Keller, and Catherine Cronin. It's been an honor and a pleasure to work closely with these teams as they progress through the competition, and it's a joy to see them taking their places in a physical courtroom for the first time since this competition began for them more than a year ago. Presiding over this evening's competition will be the Honorable Elena Kagan of the United States Supreme Court. The Honorable Consuelo Callahan of the Court of Appeals for the 9th Circuit, and the honorable Kimberly Budd, Chief Justice of the Massachusetts Supreme Judicial Court. This evening's case is written by Tejinder Singh, Harvard Law School class of 2008. It poses two key questions. The first, is whether a court can exercise specific personal jurisdiction over a brand name drug manufacturer who promotes and sells its product in the forum state when a plaintiff was injured by the generic version of the same drug, which is required to copy the key features of the brand name drug by law. The second is whether AIM Statute, Section 5101 comports with due process to the extent that it conditions registration to do business in the state on consent to general personal jurisdiction in the courts of the state. Tonight, the petitioner Charles Artiss will be represented by the Carrie E. Buck Memorial Team, which consists of John Acton, Jason Altabet, one of the team's oralists, Matt Bendisz, Ryan Dunbar, Maria Huryn, and Fenella McLuskie, the team's other oralist. The respondent Westlake Pharmaceuticals, will be represented by the Lila A. Fenwick Memorial Team, which consists of Chinyere Amanze, one of the team's oralists. Avita Anand, Reagan Chrisco, Sarah Maher, Mariah Wanton, and Morgan Sandhu, the team's other oralist. Before we begin, please remember that laptops, cell phones, and other personal electronics cannot be used in the courtroom at this time. Please ensure that they're all on silent before we begin. Please also remember that there will be no photos or video that can be taken during the arguments, and please do not leave the courtroom during the argument. Thank you very much. Good luck to our teams, and enjoy the competition. All rise. The Honorable, the Chief Justice, and the Associate Justices of the United States Supreme Court. Oyez, oyez, oyez, all persons having business before the Honorable, the Supreme Court of the United States are admonished to draw near and give their attention for the court is now sitting. God save the United States and this honorable court. Ms. McLuskie. Madam Chief Justice and may it please the court. My name is Fenella McLuskie and together with my co-counsel, Jason Altabet, I represent petition of Charles Artiss. I will address specific jurisdiction and my co-counsel will address consent jurisdiction. We respectfully ask to reserve three minutes for rebuttal. Specific jurisdiction, in this case, turns on a single question. Is there a case-specific connection between Charles Artiss' claim, and Westlake's contacts with Ames? Under a straightforward application of Ford, the answer to that question is yes for two reasons. First, Westlake's marketing, sales, and distribution of brand name DZ in Ames plausibly increased consumption of generic DZ, the type of drug that Artiss took. Second, Westlake has the exact same duty to warn consumers of generic DZ as consumers of brand name DZ, meaning that there is no reason for this court's jurisdiction or analysis to distinguish based on whether a plaintiff took the generic or brand name version of the drug. Ultimately, Artiss is not a foreign shopper. He is bringing this case in its most natural forum and Westlake is not substantially disadvantaged by having to litigate it here, meaning that this case being heard in Ames comports with notions of fairness and federalism. But let's start, Ms. McLuskie, with your second point, which is whether it makes a difference that this is a product that the manufacturer here did not make. In Ford Motor Company, one of the key sentences, it says, why was their jurisdiction? It's because Ford had systematically served the market in Montana and Minnesota for the very vehicles that the plaintiffs alleged malfunctioned and injured them in those states. Now, you didn't serve a market for this product. The brand name manufacturer is a different manufacturer from the generic manufacturer. Why doesn't that make a huge difference? It's true, Your Honor, but the key difference, and in fact, the only real difference between this case and Ford is that here, Westlake did not manufacture the actual pills that Artiss took, but this isn't a manufacturing claim. This is a failure to warn claim based on the contents of the label of generic DZ, which is identical to the label on brand named DZ. But how different can the product be before it's not the same? I think as our Chief Justice said, and would you argue that Ford's marketing related not only to specific Ford models, but to all cars in general? You seem to be arguing very expansively, so I'm concerned about what the limitation would be on relate to. Yes, Your Honor. We're not at all arguing that Ford's marketing of other models of Ford cars would relate to the claims. Here we think that the correct level of generality is the drug, and so it is Westlake's brand name, DZ contacts and Ames that relate to Artiss having been injured by the label on DZ because just to be clear, the label on generic DZ and brand name DZ are exactly the same. So it makes sense to look at the level of DZ at the type of drug when considering which of Westlake's form contacts relates to Artiss' claim. I'm sorry. Go ahead. I'm sorry. Does that mean that you could sue Chevrolet but it was a Ford car, but you could sue Chevrolet because they had the same seat belt manufacturer? No, Your Honor, because here, Artiss is suing Westlake, because Westlake actually authored the label that injured Artiss. I suppose in your Chevrolet example, Justice Budd, the plaintiff could probably sue the seat-belt manufacturer, but it couldn't sue Chevrolet, as Chevrolet had nothing to do with the making of the seat belts. I'm sorry. No, please. You seem to be arguing the Innovator Liability Theory that Ames imposes the same on the brand names, as on the manufacturers caused by the generic. So ergo, you have the generic and therefore all the contacts, that, if the brand name had been the one that had caused the injury, you seem to say well, automatically we just make that leap. Is there a case that supports that? This Court hasn't, and locals haven't really considered Innovator Liability claims, but we would submit to the Court, that certainly, Innovator Liability is different and perhaps, it's even unique on the merits. But in terms of this Court's jurisdictional inquiry, we're just asking the Court to apply the exact same cases it does in any other case. But aren't you asking that the theory of Innovator Liability essentially, itself, overcome what would otherwise be a glaring jurisdiction on defect, which is that Westlake didn't make this product. Two things, your Honor. First, we think that who manufactured the product would be relevant if this were a manufacturing claim, but it's a labeling claim and Westlake did in fact author the label. It depends, I suppose what we call a product. In some sense, the product is the label, That's what injured Artiss. Westlake actually made that label. The second point is. But was the label made in Ames? No, the label was not made in Ames. That seems to be one of Westlake's argument, is that the label is the whole thing, and you have no contacts in Ames, relative to the label. Am I wrong on that? No, your Honor. You're correct that the label wasn't made in Ames. But we think that Ford forecloses this argument, because in Ford, the court held that Ford's manufacturing, sales, and re-servicing contacts in Montana and Minnesota related to the plaintiffs claims that were essentially design defect type claims. Although the fact that the Ford vehicles weren't designed, manufactured, or first sold in the forum states, the court held that Ford's other contacts with the forum states counted for the relatedness inquiry. It's clear from Ford, that it doesn't have to be the defendant's activities that underlie the legal claim, but of those that are relevant to the jurisdictional analysis. But again, Ford seems to be different because, in Ford, the Ford Motor Company, in some sense profited from the sale of the car that was involved in the accident, even though Ford itself didn't sell that car in the state. But here, it's very hard to see how Westlake profits from the sale of the generic drug. To the contrary, the generic drug is a competitor of Westlake's. Yet you're saying the jurisdiction can be based on that. Two things to that, Chief Justice Kagan. First, Westlake actively disclaims any reliance on profit. On Page 21 of its brief, it says profit is not relevant to the relatedness inquiry. But even if it were, we think that Westlake profits off of the facts that led to Artiss's claim in as direct a way as Ford did, namely, every time a prescription is filled, or every time a prescription is written for DZ without specifying the brand, that prescription can be filled with either generic DZ, or brand name DZ. Here, it happened to be filled with generic DZ, but had Artiss continued taking this drug, it could have been filled with brand named DZ in the future. Westlake has the possibility of profiting off of this prescription, just as Ford have the possibility of profiting off of the cars through, for example, re-servicing. We also think that the broader scheme that makes Westlake liable for the label on generic DZ, in addition to brand name DZ, is one from which Westlake profits. Admittedly, I read your brief and you played the file in quite well about how sad this is for the disabled person and how easy it would be just for Westlake to come and defend. I'm still not quite understanding when you say the relate to test can be satisfied even by potential causation, for example, because Westlake's promotional efforts might have caused Artiss's doctor to prescribe DZ. But doesn't that rule render the arising out of part of the formulation basically superfluous? If even potential causation is enough to create minimum context, then why bother even having the half of the formulation that deals with actual causation at all? I'm not understanding the tests that you're asking us to apply. To be clear, we're not asking that this Court adopt some plausible causation test. Rather, we think that plausible causation is one way to illustrate the way in which a claim can connect to a defendant's form of contacts. We get that idea from the Ford opinion, specifically pages 13-14 of the Slip opinion, when the Court talks about how the plaintiffs may never have bought the Ford vehicles, except for Ford's extensive contacts. The Court makes it clear, of course, that the plaintiffs don't need to prove that causation because that would be explicit causation, which the court rejected. But it says that the possibility of that causation makes jurisdiction act. But isn't there a difference? Because Ford, in that case, knew very well that by its marketing activities, its servicing activities that it was increasing the demand for its product everywhere, both in state, and potentially out of state. But here, Westlake is not trying to up the demand for generic drugs. Again, more people buy generic drugs, the less money Westlake makes. It's true that it may not be trying to up the demand for generic drugs, but it certainly is. We believe that it is aware of that. Surely, Westlake Pharmaceutical Company is aware of the dynamics of drug prescriptions in Ames and in other states, and it knows that when it tries to persuade pharmacists to prescribe its drug, a lot of them will end up prescribing DZ without specifying the brand and that will be filled with either brand name or generic. We think that it is foreseeable to Westlake, that it would be held liable for plaintiffs who had taken generic DZ. You keep saying that it's possible that your client could have taken the Westlake drug. But we know that he didn't take the Westlake drug. Getting back to basics, if it wasn't Westlake who provided the drug, why should they have to answer for the injury? Because, your Honor, Westlake provided the label and it is that label, not the way the drug was manufactured, that injured Artiss. What do we do about the fact that any demand Westlake generated for the generic DZ was likely just an unintended consequence from Westlake's perspective? It seems Westlake's best argument here, is that the marketing was about a different product, which is unlike Ford. I'm still struggling with that. Two things, your Honor. First, Westlake is certainly marketing brand name DZ, but it's certainly aware that, that marketing will increase sales and consumption of generic DZ. It's that awareness, that foreseeability, and opportunity to structure its conduct, that this Court is concerned with. Second, in some sense, Ford would have profited more if it sold firsthand vehicles. But nonetheless, the Court and Ford held that it was cultivating a market for secondhand vehicles. There's indirectness in Ford that is mirrored here. In Ford, the courts specifically reserved the question of whether there would be a jurisdiction if Ford had not marketed the vehicle brand in state. If say, the Ford Explorer had been marketed only in a different state from the one in which the accident occurred. Let's say that we had not reserved that question. Let's say, that in fact, there would have been no jurisdiction if the Ford Explorer had been marketed only in Florida, which was not the state in which the accident occurred, would then your argument be impossible to make? Not at all, your Honor. We think it will be exactly the same. Because Westlake markets DZ in Ames, that contact with Ames is connected to Artiss's claim. Now the analog to your hypothetical, your Honor, is if Westlake had not marketed, sold, and distributed DZ in Ames, rather, had only promoted its other drugs. There, we agree, that would not be jurisdiction because there would be. So you do concede that much. Yes. There would not be sufficient contacts if they had not marketed the brand name. If they had no contacts whatsoever related to DZ in Ames, yes. If they had no contact whatsoever or if they had not marketed it in Ames? If they had no DZ related contacts. We think that even absent Westlake's marketing, its sales and distribution of brand name DZ still relate to Artiss's claim. But if it didn't have any DZ related contact in Ames, then there would be no specific jurisdiction. At some point we have to figure out what this relates to means in a way that people can apply and what should the rule be, when does litigation sufficiently relate to the forum state such that specific jurisdiction exists? Two things your honor. First, we don't think the court has to answer that question here because this is a straightforward application of Ford. We would urge the court to do as it did in Ford so there are real limits to relates to. But because this case is not anywhere near those limits, it doesn't meet. Those were just words, whoever wrote that. What did that mean exactly, real limits, what real limits? It is this court's tradition in specific jurisdiction cases to go incrementally. We think the court need not define the precise boundaries. That being said, if the court wants to give guidance to the lower courts on what relates to means, we think the court can emphasize two things. The first is to bring out something the court said in Ford, which is that the plaintiffs there weren't foreign shoppers. We think it's important to emphasize that the plaintiffs aren't trying to game the system, that this is actually a rational place to bring. Does Ford allow you to argue that the potential is enough, the potential for causation? Does Ford allow you to make that list, does it naturally flow from Ford? That is our reading of pages 13-14 of the slip opinion because the court uses this except for language, that except for Ford's foreign contacts, the plaintiffs. Well, would it factor discovery, it turns out that it became clear that your client's doctor did not prescribe DZ because of Westlake's promotional efforts. Could the defendants then move for summary judgment on personal jurisdiction grounds? No, we don't believe so. We believe it's the possibility of the causal link. But if taking discovery rules out that possibility, then do you still lose in the end? No, you honor. In the footnote 5 of Ford, the court said that even if the plaintiffs had moved to the jurisdictions one day ago and had never seen any of Ford's contacts, that would still be jurisdiction. I see my time has run out. I would urge the court to find that specific jurisdiction is proper here. Thank you. Thank you, council. Mr. Altabet. Madam Chief Justice, and may I please the court. Six years ago, Westlake consented to a simple agreement that it would accept the jurisdiction of Ames' courts in exchange for the benefits of being a registered foreign business in the state. Now twice since that initial agreement, Westlake has renewed it's consent and it has never attempted to withdraw. Today however, it asks this court to invalidate its prior consent under the due process clause. But under one of two principle paths, this court should reject that request. The first path is simply reaffirming this court's long-standing precedent that a corporation validly consents to jurisdiction when it signs and files the appropriate registration paperwork so long as state law explicitly links registration to consent. One might object that state passed a law saying that anybody who registers to do business in a state is subject to general jurisdiction, that would be unconstitutional under Daimler, wouldn't it? Why does adding the label of consent make a constitutional difference? But two reasons for that your honor. The first flows from this court's long-standing precedent in Pennsylvania fire and Robert Mitchell company and in Hair Bow where it says that mandating jurisdiction in a statute is different than actually offering a bargain to a company. There, for example, in Pennsylvania fire, there was notice that by meeting the registration threshold and actually registering, a company would be subject to general jurisdiction. I don't know, this just seems like an attempt to evade Daimler. Daimler could have said, "Oh, by the way, there are these very old cases which suggests that a court can just get around everything that we're saying here." But it didn't. It thought that what we said here had some meaning, that the general jurisdiction was for where a corporation was at home, its state of incorporation or its principal place of business. The end. Your honor, I think looking at Daimler and Goodyear, there's a couple of reasons why this is not simply moving past them. The first is that the court there as explicitly noted that this was about a non-consenting defendant and it pointed to the Perkins case, the paradigmatic general jurisdiction case, this court often looks to to understand where is contact based general jurisdiction valid? When it points at Perkins, it says two things. First, it says this is if Perkins case is about a not consenting defendant. Then it talks about notice and structure being the two key principles behind general jurisdiction. In cases where a corporation is not consented to jurisdiction, that makes a lot of sense. These, essentially a comb test gives notice and it allows structuring of conduct. But in situations like this one with consent, corporations also have the ability to have notice and to structure their conduct. In fact, in footnote 4. In what way does a cooperation really have the ability to do that? How is this consent to say to the corporation, well, you know. It's like a gun to the head. You better sign this piece of paper or else you can't do any business in the state. Well, the registration clauses have real limits and in every state, both under this court's precedent and just generally as common practice. In Ames, for example, if Westlake had used a third party entity, if it had structured its primary conduct inside of the state below the level of registration or if it had severed its non interstate conduct from the intra Ames market, then it wouldn't have had to register. There are a variety of choices that corporations have and we agree with Westlake. All [inaudible] , right? We agree with Westlake. Of course, it's a legitimate choice. You have to either decide how you're going to structure interstate conduct or consent to general jurisdiction, but this court is often allowed consent to jurisdiction in these sorts of circumstances. Well, give me an example of what would have gone too far since you say this is fine. What would have gone too far if it had been there? For a business registration statute, for example, into this court's precedent, if what Ames had said, selling a single product into our state constitutes business registration and thus you must consent to general jurisdiction, this court has long passed said that that is not allowed. Well, how is that any different, where do you draw the line? What does that line look like? It's drawn on the localized character and the substantial business activities. The statute itself and the Supreme Court of Ames says that there must be a substantial business inside of Ames in order to qualify for registration. This court in a long line of cases has said under interstate commerce a registration clause can only affect localized intrastate activity and that makes sense because states cannot simply disrupt the interstate economy. There has to be something about the actual use of the state's economy that gives it a justification to use these registration clauses. Well, I find your argument a little bit circular. In response to the unconstitutional conditions argument, you've argued that there is no constitutional right to personal jurisdiction and that there is only a due process right not to have property taken without due process. But in the Insurance Corporation of Ireland, didn't we expressly say that the requirement of personal jurisdiction represents, first of all, an individual right? So what authority do you have for saying that for the proposition that there is no right to personal jurisdiction? I think there's a couple of important places to look at. The first is in Bauxites itself, and footnote 10 of that case. The court says, of course, this is an individual right, and it's waivable because people are allowed to put themselves to the submission of a state's courts through a variety of means. For example, voluntary state procedures and more generally, the court saying this is not just about fundamentally something that you can't get rid of. You're always allowed to have a procedure by which this is satisfied. That's why forum selection clauses exist. It's why, for example, if I was a plaintiff and I had a crossclaim against me, I would have it consented to personal jurisdiction in that case even though now I'm a defendant perhaps in a state where I'd actually don't have minimum contacts that comes from the same case. Second, this court, in Neirbo, actually address the unconstitutional conditions possibility for this and said, "Hold on a second, for these consent, the registration clauses, we're talking about a way of regulating the procedure by which due process is satisfied." If part of what it means is to not have one's property taken without due process, is to not have it taken by a tribunal that lacks jurisdiction over the person, so if you are being asked to waive that objection, why aren't you being asked to give up a constitutional right in exchange for a government benefit in a way that implicates the unconstitutional-conditions doctrine? In short, looking to the Neirbo case, we think of it like this. Due process is the right not to be subject to a state's jurisdiction without a fair process that reasonably effectuates the right, and one way of effectuating that right is consent to jurisdiction. Another way is if you haven't consented, as long as it's your place of incorporation or your principal place of business, or if it's a specific jurisdiction case that you've done enough business activities related to the lawsuit that you're dealing with such that it's fair to hail you in. The usual cases about consent look very different from this one. Usually, we're talking about a party consenting to a particular suit, or maybe we're talking about a party consenting to any suit brought under a particular contract, but here, it's like you're consenting to the entire world of claims that can be brought against you. At that point, are we really even thinking about the same thing? I think we are, Your Honor, for a couple of reasons. To the extent, breadth has been important in the court's doctrine. It seems to be that whether it's going to voluntariness. Was it a voluntary agreement? Because there's all sorts of ways to subject yourself to a lot of cases in a completely unrelated state. For example, if Westlake had a 10,000-person union, and they signed an agreement with that union that said any employment actions will be brought in Florida no matter how related they are to Florida, they could be facing thousands of lawsuits in Florida to the extent that that was a voluntary agreement. Under this court's precedent, that would be approved as a consent to jurisdiction, and we understand this is broad. This is general jurisdiction, but we think that the real limits in terms of what registration clauses can cover, the structural options that corporations have, and overall, the fact that particularly in case like this, Ames has less than one percent of the US population. There is no such thing as just saying the consequences of withdrawing here are just so grave that we're not thinking of this as truly voluntary consent. I think there could be circumstances case-specific where that would be true depending on how the business registration clause was. Like what? For example, let's say that the state of California had a business registration clause that said having a single person inside of the state from your company for more than a month constitutes business registration. Now, first, I think that would raise serious interstate commerce problems, but then also, it would probably implicate the due process clause in terms of, is this a truly voluntary agreement? We agree there's a very important aspect of voluntariness throughout the court's case law. Why does that say anything about voluntariness? I can see you saying it has a different interstate commerce dimension, but it seems to me that as long as the consequence is the same, which is, "Sorry, you can't do business here," the voluntariness of your example is the exact same as the voluntariness of this actual case. In this case, Westlake is able to do substantial interstate business, and do it continuously. That is the amount that is necessary to hit registration, but if it doesn't do substantial business, if it doesn't do it continuously under the statute and under the Supreme Court of Ames's ruling, it wouldn't have to register. Do you have a sense of what substantial is and what continuously is? Well, the Supreme Court of Ames discusses Westlake's 40-person marketing team and says that's an example of substantial business. That's on page 8 and 9 of the record, and it's the Supreme Court of Ames's opinion. We think that's an important way of thinking about this because it actually mirrors, very closely, the court's interstate commerce version. Well, that's an example, but where's the line? Is it 40, 50, 30? Is there a number attached to this? No, Your Honor, but in the same way that standards and statutes are developed over time through judicial opinion, we think that's available here, but moreover, even if that weren't sufficient, there's a number of different options Westlake has. It could ask for an opinion from the State Attorney General's office asking what are the consequences of keeping this sort of operation; the State Secretary of State has to give it a certificate of occupancy and a state tax code if it registers or if it hits substantial business, and so we can ask the Secretary of State. Well, you're telling them how to do business, but we're really looking at the statute. You're saying they could do business all of these different ways, but does the statute put a gun to their head? Yes, Your Honor, and I think the way you look at the gun-to-your-head formulation for unconstitutional conditions are more broadly is the idea of what options do they have? Well, are you the person too to ask about fairness and fair play and substantial justice? I can discuss that, Your Honor. You can discuss anything we want to talk about, really. Your Honor, whatever you want to. How do we balance the state's interests here with Westlake's interests? I said to, I think, your co-counsel that you played a pretty good violin making us feel sorry for your client, but it isn't always the person that has the saddest story when you're balancing state interests and your interests. Can you tell me why this is fair play and substantial justice? Yes, Your Honor. In the McGee case, the court talked about how states have a really manifest interest in ensuring that its citizens receive redress in court, and so at the very least in a case like this, Artiss is a citizen of Ames who has lived in Ames for all the relevant times. He was injured in Ames by a label sent into Ames by a corporation that designed the label and uses that label all the time in Ames. We think from a fair play and substantial justice formulation, that's a really important way of thinking about the state has a real interest here, and more broadly, if this court were to conclude on the specific jurisdiction grounds that we think forward, it's a straightforward application, but if this court would reject specific jurisdiction, the only option left for an Ames citizen to sue would be under this consent statute. In a way, this consent to registration statutes act as a stopgap measure. It allows for people to bring lawsuits in places where it's important for them to do so, and when a corporation consents voluntarily to that formulation, it seems to satisfy due process both under this court's precedent in Pennsylvania fire and the like, and moreover, under the general principles of consent that this court talks about. I'm having trouble with the foreseeability. I understand that Westlake may consent to suits that have to do with them, but how could they possibly know that they may be sued by somebody who hasn't even used their product. Where is the line drawn with regard to who gets to say? Sure. For the innovator liability portion of that, we think state law is going to tack duties to various actions. If we're talking about innovator liability, then the fact that the state says this is how we think about liability in a failure to warn context, for example, if a physician says that you should take this prescription drug, and then someone gets injured by it, the duties that attach to the physician level, Westlake is well-aware of that, but in terms of the consent jurisdiction context, having to face suit on general jurisdiction grounds, we think it's important to note that, already, Westlake faces consent through essentially a type of registration in terms of its incorporation. Let's say hypothetically, Westlake was incorporated in Delaware, and it only had a mailbox there, it could face suit on any liability in Delaware despite having no contacts and also as its principal place of business, it always faces general jurisdiction. There's a difference between being subject to general jurisdiction in two states and being subject to general jurisdiction in 50 states, which is how many it's going to be once states get a hold of the idea that they can do this. Well, Your Honor, just briefly, I would say I don't think that all states are going to implement something like this. At the very least, almost 20 percent of states have statutes saying, "Hey, we don't want our registration clauses to ever be read as constituting consent to registration." There's obviously some incentive to pass business-friendly statutes that don't include this. More broadly, however, there's always going to be the choice of whether to go consent in one state or another state. For example, let's say Alabama has the worst innovator liability law, and Westlake says, "I never want to be subject to that." Well, unlike doing business jurisdiction in the pre-Daimler and Goodyear era, it has the choice to not consent in Alabama. It can focus on interstate sales, which won't implicate registration. It has the option to use third-party entities to avoid consent. It has all of these options to avoid what would be the biggest problem in doing business jurisdiction. Find where the best law is and sue. Your theory, Mr. Altabet, relies on some very old cases, and I realized we haven't formally overruled those cases, but we haven't relied on them in a very, very long time. Aren't they essentially reversed? I don't think so, Your Honor, for a couple of reasons. First, this court has cited those cases as late as in the Perkins case in 1952, which the court always cites back to as the paradigmatic general jurisdiction case. In the Benedict's case, not too long ago, the court assumed the consent to registration could be valid. I see my time is nearly expired. You can quickly finish your answer. In conclusion, it's not attached to the fictions of the Pennoyer era that this court has always said have been effectively overruled in the past. It involves an actual consent that falls in line with this court's cases, and accordingly, we ask that this court reverse, Supreme Court of Ames below, on either the specific jurisdiction framework or consent. Thank you. Thank you, counsel. Thank you. Madam Chief Justice, and may it please the Court. My name is Chinyere Amanze, and I, along with my co-counsel, Ms. Morgan Sandhu, are representing the respondent, Westlake Pharmaceuticals. I will address the issue of specific jurisdiction and Ms. Sandhu will address the issue of general jurisdiction. Your Honors, this case is about the awesome power of personal jurisdiction and the thoughtful, thorough, and fair limits the due process clause places on the exercise of this power. Here, petitioner asserts that Ames state has specific jurisdiction over his negligent and reckless labeling claim against Westlake Pharmaceuticals, but this cannot be true for three reasons. First, the essential tenet of specific jurisdiction is a connection between the plaintiff's claims and the defendant's actions in the forum state. There is no such connection here. Why isn't there a connection if the reason that the plaintiff was injured was the label that Westlake put on its product? There is no connection for two reasons, Justice Budd. First, the injurious product does not belong to Westlake, it is wholly owned by Santos Laboratories. That wasn't what they're arguing. They're arguing that the label was faulty, not the product. Even if we look at the label as the product that turns this case, as the petitioner has long noted and as the Ames superior and supreme courts have also agreed, none of Westlake's labeling activities take place in Ames, and so that supports, again, a finding that Ames does not have specific. Well, I mean, suppose that this were your product. The fact that the labeling is not in this state, would that have made a difference under Ford? Yes, under Ford, this court spoke extensively about the fact that Ford systemically serve. Wait. Before you say that, I want to understand, if this had been your product, it wasn't the generic, are you saying there still wouldn't have been personal jurisdiction? My apologies, Justice Callahan. If this had been our product, there would be specific jurisdiction under this court's precedent and Ford. Okay. That's even if the labeling was done in some other state; isn't that right? That is correct. Why is it any different here? It was not a labeling claim, it was a design defect claim, and Ford said, "It doesn't matter if the product was designed in some other state, still there's personal jurisdiction here," and similarly, "It doesn't matter that the labeling was put together in some other state, still there's personal jurisdiction here." Why isn't it the exact same? It is the reasoning in Ford that counsels this Court today to take a different analysis. In Ford, this court spoke extensively about the fact that Ford systemically served the market for its own products, that it asked residents of Montana and Minnesota to use those products, to become lifelong users of those products, and then when those same residents were injured, tried to disclaim jurisdiction. But here, again, the critical difference between the case before this court today and Ford is the fact that the product- I think, and this goes back to Justice Budd's question, you're fighting the substantive liability statute. There's a statute, and it's not an issue in this case, which says that you are as responsible for the label that the generic manufacturer puts on as you are for the label that you put on the brand product, and if that's the case, why should there be any difference? While that is correct, the innovator liability theory itself also counsels this court to take a different analysis, and the two seminal cases that establish that theory, Novartis in California and Merck in Massachusetts, both of those cases spoke extensively about the labeling activities of brand name pharmaceutical companies. Well, except I guess innovator liability is not subject here, and so that exists. You just conceded that if it were your product here, that there would be personal jurisdiction. Innovator liability says generic and brand exactly the same, so where's the daylight here? I'm going, if that, then this, how do you get around that? The theory of innovator liability recognizes the fact that the two products must be biochemical equivalents, but it does not conflate the two products into one. It in fact still recognizes that one product is the brand name product and the other belongs to a wholly separate group. You see, I think you're just fighting the substantive statute. I mean, I couldn't understand why if somebody is saying, "Why should we be responsible for somebody else's product?" But the legislature has said the reason you should be responsible for somebody else's product is that they have to put your label on their product, so you are just as responsible for their product as you are for your own, in which case, as Justice Callahan just said, I guess I don't see where the daylight is. Why doesn't it follow as night to day from Ford? Two points in response, Chief Justice Kagan. First, we do not fight the underlying question of liability, we simply assert that Ames is not the proper forum to hear that question. It might be helpful to turn to another court, the Southern District of Florida, that has considered this exact question, specific jurisdiction when a negligent and reckless labeling claim is based on the theory of innovator liability, both pre and post-Ford. Pre-Ford, the Southern District of Florida mistakenly relied on but-for causation, and upon allowing a rehearing after Ford, it still held that specific jurisdiction is inappropriate unless the labeling activities of the brand name pharmaceutical company occurred in that state because that is the underlying core conduct, the underlying reasoning for the innovator liability theory in the first place. To allow otherwise would be to stretch both the theory of innovative liability and specific jurisdiction itself to the point of being almost unrecognizable. Well, I guess I ask this of your colleagues on the other side, your dear friends on the other side, how would you have us decide when a contact is related to a claim? It obviously has to be more than just causation. Can you give us a rule that we can use so that we can decide this case? We would adopt the same rule that this court put forward in Ford that there must be a strong nexus between the plaintiff's claims and the defendant's actions in the forum state. Ford seems to leave open, though, the option of potential. Someone named Justice Kagan wrote in there that it seems to leave that open, but I can't speak for that individual. Can you tell us? What was she thinking about? While there is potential, and even in board to previous questions, the fact that the product design and manufacturing did not occur in Montana or Minnesota was not dispositive. That should make a difference here today when the injurious product does not belong to the defendant. Ford is distinguishable here today, but the rule still applies. We do not ask this court to depart from Ford. Simply to find that when there is a disconnect between the defendant and the injurious product, that that strong nexus cannot be satisfied by simply pointing to Westlake marketing and selling its own product. But this claim has nothing to do with the making of the product. It has something to do with the labeling of the product. I guess this is another way of asking the exact same question as only something to do with the labeling of the product, which in fact, Westlake does. Westlake puts its label on this other product even though it didn't make it, and if the idea of specific jurisdiction is a connection between the defendant and the forum and the litigation, meaning the claim, this claim is only about the labeling. We agree that this claim is about the labeling and that specific jurisdiction requires a connection between the plaintiff's claims and critically the defendant's actions in the forum state. But you said you would defend the claim in Ames if it were your product. By deciding to serve Ames Market, you have already signed up to defend products, liability actions brought by Ames residents and Ames supports including actions about the adequacy of your label because if your own product injured an Ames residents, they could sue you. What's unfair about having to defend this generic? It's the same thing. Well, Westlake would be responsible for defending the claim if the petitioner had taken [inaudible] . The fact that he has not changes the analysis of fairness in this case because it begins to speak to the due process rights of the defendant. I mean it's an accident that he didn't take the brand name product. It's just whatever the pharmacist decides to give the patient. Could easily have taken your product. We actually think that is not quite as accidental as it seems, as this court noted in the pivot descent and even in Merck, the Massachusetts Supreme Judicial Court case that established innovator liability for that state. Once a generic version of a product enters the market, it can quickly become up to 90 percent of that market, and many states have adopted statutes that either suggest or even require pharmacist to fill prescriptions with the generic product. It is very likely that if petitioner had continued to fill that prescription, Santos Laboratories would have continued to benefit. It is this reality of the pharmaceutical industry that also counsels this court not to allow specific jurisdiction today because under petitioners version of specific jurisdiction, Westlake for simply marketing and selling its own products in an attempt to recoup the substantial investment necessary to create [inaudible] would now be open to jurisdiction from anyone who had taken any version of any generic of Westlake's products. We think that under Ford, we see that that strong relationship cannot be satisfied in this way. Counselor, you argue that there is no contact because the labeling didn't take place in the forum state, is that right? Then you say the labeling didn't take place, so are we talking about the creation of the language or are we talking about the slapping of the actual label on the product? What are we talking about? We use a broad definition of labeling activities that includes any action that has to do with the development, construction or manufacturing of the label. Anything from the clinical research that went into making [inaudible] or the printing and slapping of the label. But as petitioner has long conceded, none of that activity has taken place in Ames. Well, the other side makes an argument that they say we would accept your rule, that every case would be dismissed in a failure to one case that wasn't brought in the company's home state because the labeling decisions would always be made out of state. What assurances can you give us that this wouldn't be true? Two points in response to Justice Callahan, first, this would only apply to negligent and reckless labeling claims based on the innovator liability theory. To your earlier question about what would happen if the petitioner had taken [inaudible] in a regular failure to one claim in that case, specific jurisdiction would be appropriate and that would fall directly under Ford. Again, here, even if this court were to disallow a finding, a specific jurisdiction in this case today, petitioner and those like him still have other forums where they can bring their claim. Notably, any forum state where the labeling activity did take place, or even Delaware and New Jersey, which undoubtedly have jurisdiction over Westlake, and both of which have choice of law statutes that may allow petitioner to still access the innovator liability theory. There's much assurance that a finding that specific jurisdiction is not allowed today does not foreclose petitioner or anyone like him or failure to warn claims writ large. Instead, disallowing Ames from having specific jurisdiction falls directly in line with this Court's prior specific jurisdiction precedent and balances the need for access to the innovator liability theory, which again, we're not contesting, while also respecting the due process rights of defendants and not subjecting Westlake and any other brand name pharmaceutical company to jurisdiction and an exceptionally broad swath of jurisdiction. Why should we feel sorry for Westlake here? I mean, Westlake is a huge company. It litigates claims like this all over the country. It litigates claims just like this in the state of Ames involving its own products. There would be no difference in the way that the suit would work, whether it was a generic or the brand's name product. Why isn't it completely fair to subject Westlake to suit in the state of Ames? Turning to fairness, it is not fair because that would be a violation of Westlake's due process rights, and the fairness analysis. It would be a part of what it means to be a due process. Has to do with, does this seem fair? That seems pretty darn fair to me. I mean, Westlake is litigating these suits all over the country, including in the state of Ames. What's the problem with litigating one more? Don't forget the other side's disabled too. You're multi-billion dollar side disabled. Turning to this Court's five fair play in substantial justice factors, this would violate those factors for three reasons. First, the interstate judiciary has an interest in efficiency, and efficiency is often defined as not dragging out litigation for unnecessarily long periods of time. Looking at petitioners claim. I'll say efficiency suggests to me that Westlake can litigate this suit here just as it's litigating many suits of the exact same kind here. Rather than asking Mr. Artiss who has been allegedly injured by your product to fly across the country and use lawyers that he doesn't have, in a different state. If you want to just talk about fairness and equity seems as though it's all on one side here. That side not being yours. Two points in response to Justice Kagan, to borrow some language from the Northern District of Texas in a case called Groom, litigating a suit in a foreign forum is not a trivial burden. Fairness and this Court's analysis of fairness has always been- However, not a trivial burden. It's a much more serious burden for Mr. Artiss than it is for Westlake Company that is doing business in the State of Ames, that has lawyers in the state of Ames, that is litigating other essentially identical suits in the state of Ames. It will litigate a few more. It would litigate quite a few more, Chief Justice Kagan. To use a more common language sense of fairness, again, allowing specific jurisdiction in this case would open up Westlake and any other brand name pharmaceutical manufacturer to a broad swath of jurisdiction from anyone who has consumed a generic version of its product. Westlake has no control over if, when or how many companies decide to profit off of its substantial research and investments to create those products. But that's an objection to the substantive liability statute, but that's not an issue in this case. No, it is not an issue in this case. Again, we do not object to the innovator liability theory, but we object to the contention that specific jurisdiction is appropriate when a claim is brought based on that theory solely because Westlake or any company like it has decided to market and sell its own products. Let me take you back to I was stumbling over the arise out of them relate to test. If they can't make that, if the petitioner can't make that, do we get to the fairness argument? Yes. We would still get to the fairness argument even if this court found that arise out of or relates to was not met today because as this court expressed in International Shoe of finding a specific jurisdiction must always be in line with fair plain substantial justice to be constitutional. But if they can't show it relates to, don't they just lose there? That's what I'm asking. Can they make up for that with fairness? Can fairness make that for if you can't meet the element arise out of a relate to? What happens if they don't meet that argument? Is it over? No, then that would not work. All three are required for finding a specific jurisdiction to be appropriate. Purposeful development arises out of and relates to and conforming with fair play and substantial justice. As this case or finding a specific jurisdiction would not, we respectfully request that this court affirm the decision of the Ames Supreme Court. Thank you. Ms. Amanze. Ms. Sandhu. Madam Chief Justice, and may I please the court. As this court has made clear, not once, not twice, but three times, a corporation may be subjected to general jurisdiction only where essentially at home. General jurisdiction allows the state to hear all claims by all plaintiffs at all times, regardless of their connection to the forum state, a grant of such expansive jurisdictional power must have correlative limits. But didn't Westlake consent to this jurisdiction? Your Honor, well, Westlake did comply with statute 5101. We don't believe that this constitutes consent for two reasons. The first is that as defined by Black's Law Dictionary, consent requires a voluntary yielding to the desires or wishes of another. Here, there is no voluntariness. I don't understand that. You signed a piece of paper. What's non-voluntary about that? Voluntariness requires alternatives, particularly the alternative. There's an alternative here, you'll make less profits if you don't sign that piece of paper. Yes, Chief Justice Kagan, we would lose our profits by not being able to engage with the Ames market. Anytime somebody doesn't make as much profits is otherwise, that's not voluntary? No, it's not voluntary here for two key reasons. The first is that while Westlake has the option to withdraw from Ames, lower courts who have been asked to address this exact issue of jurisdiction by registration have found that that option to withdraw is not truly voluntary in our modern economy. For example, the Delaware Supreme Court in Genuine Parts where it was discussing jurisdiction by registration found that that is not a voluntary option. The second reason that it's not voluntary is. I guess I'm still struggling to understand why. How much business does one have to lose to make it not voluntarily? Well, Chief Justice Kagan, we don't believe there's an exact amount of business that one has to lose. But part of the problem and part of what makes this not voluntary is the compounding nature of jurisdiction by registration. If Ames is allowed to do this, every other state in the union will also be allowed to do this. But the parade of horribles is what you brought out there. It seems to me that it just hasn't happened, what you say, the parade of horribles, there's been time and it hasn't happened in every other state. Justice Callahan, we actually would disagree with that contention. Okay. Go for it. [LAUGHTER]. There are currently eight states who have expressly disclaimed jurisdiction by registration only because of doubt about its constitutionality. In those states, it is presumable that they would have jurisdiction by registration, but when the state supreme courts considered it, they felt that there was too much tension between jurisdiction by registration and Daimler. Because of that, they disclaimed the ability to subject the corporations registered there to general jurisdiction. Where this court to hold 5101 constitutional, those eight states at a start would be able to, again, reassert jurisdiction by registration. Well, do you concede that in Daimler, we did not specifically overrule those cases. We know how to do that, so we didn't do that. This court did not expressly overrule those cases, but in Daimler itself, in many other cases, this court did cast a doubt upon those cases. Well, how did it cast doubt upon them? I I just think it's two different things. Daimler is about contacts jurisdiction and then we have another set of cases about consent jurisdiction that granted are old, we haven't had to revisit them for quite a while because they're pretty stable and people understand that if you consent, you subject yourself to jurisdiction. Well, Justice Kagan, as part of those cases being old, they were decided under a different jurisdictional framework, the Pennoyer framework and specifically looking to footnote 18 in the Daimler majority opinion, it warned litigants that cases from the territorial Pennoyer era should no longer attract heavy reliance today. That's not the rule we followed in Burnham. If tag jurisdictions survives International Shoe, surely consent jurisdictions survives International Shoe. We've never said anything to the contrary. Well, this court has not said anything to the contrary, there are two reasons that Burnham would not control in this situation. The first is that the court distinguished in Burnham from the prior time it considered tradition in Shaffer by the idea of a present versus an absent defendant. Here in this case, Westlake is an absent defendant. It's a foreign corporation in the state of Ames. Now, Chief Justice Kagan, the second reason that Burnham could not control here is because the court had a different ruling in Shaffer, which preceded it and was a more majority opinion as opposed to the plurality in Burnham. When the majority looked to what tradition meant in Shaffer, it first looked to whether that old method of jurisdiction remained valid and where it found that the foundations and the need for that jurisdiction had been eroded, it found that it no longer comported with due process under International Shoe. Well, I would agree with you that the consent, as a business I wouldn't like some of these consent statutes, but you seem to argue that the consent in this case is broader than the consents in other cases that we've said are okay. But is it really correct that a party can never give open-ended consent? For example, let's say the state offered you a billion dollars in exchange for accepting general jurisdiction, would that be unenforceable? Justice Callahan, we do think that that would probably still be unenforceable. It's slightly different, thinking about the state extending an additional benefit, there the money, and as opposed to requiring someone to accept a burden. It just seems like you want to do whatever you want to do, and that there is no consent out there that would meet your criteria. What would meet your criteria? Well, there are two specific things that come to mind that would meet our criteria. The first, is if section 5101 were directed at obtaining something more analogous, to specific jurisdiction, that would be a very different case. Part of what makes section 5101 unconstitutional, is that it is requiring consent to general jurisdiction. We heard a lot today about the interests of the plaintiff in this case. But it's important to remember that whatever the court holds with section 5101, is not just about Artiss' ability to sue the corporation. It is about the ability of any plaintiff, from anywhere in the world to come to Ames, and force Westlake to stand for suit there. But you're saying that companies can't enter into these agreements. That doesn't sound right. I mean, a business should be able to do, what it finds is in its best interests. Justice Budd, the unconstitutional conditions doctrine, effectively speaks to that. One of the critical differences between the forms of consent that this court has recognized, and what Ames is asking for here, is who's on either side of that transaction. In most of the consent cases that this court has considered, and in every consent case after International Shoe, it has been between two private parties. Here instead, you have the state, attempting to force Westlake to forego its constitutional right. It's not forcing anybody to do anything. Westlake doesn't have to sign. There's a choice. You make the business decision. Even if Westlake were to have that choice, this option would still be foreclosed by the unconstitutional conditions doctrine. The unconstitutional conditions doctrine recognizes that even if an individual can consent to something, even if an individual can waive their right, the state cannot force them to waive that right, in order to benefit. In this case, you have the state of Ames, asking Westlake the corporation to forgo its constitutional right. In this case, the right to be free from general jurisdiction, except for essentially at home. You're saying you can't waive a constitutional right? It can't be forced by the state, to wave a constitutional right. How's the state forcing Westlake to wave the constitution? I misspoke Justice Budd, it's not the idea of it forcing the corporation to wave a constitutional right. It's putting the corporation to that choice in the first instance. But you're assuming the answer to the question, by saying that the constitutional right, is not to be subject to jurisdiction, except, in the state of a corporation, the state of principal place of business. But that's exactly what's an issue in that case. You can't assume that, I mean, it might be and many of our older cases say it is. That there's no constitutional right if there's consent. Yes, Justice Kagan, while older cases do say that, the courts modern due process cases, when it comes to jurisdiction, especially general jurisdiction, have clarified, that when it's general jurisdiction at issue, a corporation has the right to be subject to general jurisdiction, only where essentially at home, and its- Well, it sounds to me like, Excuse me. Please. No go ahead. You argue that under Daimler, you have a due process right only to be subject to general jurisdiction, when you were at home. How can that be right? I mean, I can see why you like it, but how can that be right? Justice Callahan, we believe that under Daimler that is what must be right. Specifically looking to what Daimler said, and Daimler, the plaintiffs had a jurisdictional theory, that would subject a corporation to general jurisdiction, everywhere, that it did a continuous, substantial, and systematic course of business. This court rejected that theory. It said that such a theory would be unacceptably grasping. To answer your question, under Daimler, we feel this is the result that must be right. It sounds as though you're asking us to overrule all of these past cases. How does the story decisis analysis go? I mean, story decisis is or ought to be a pretty high bar. Chief Justice Kagan story decisis ought to be a high bar, but here at that high bar is met. This court generally looks to four factors, when considering whether there is a special justification, for overruling its precedent. Those four factors are the quality of the precedence reasoning, consistency with the related legal decision, development of the legal doctrine, sense, and reliance interests. On each of those factors, there's no justification for continuing to uphold Pennsylvania fire. Looking first, to the quality of the decisions reasoning. In that case, the court explained that because a agent had been present in a state, they were subject to both specific and general jurisdiction. There was no distinction drawn between specific and general jurisdiction, the way that they're now is, which underscores the fact that the legal doctrine has developed dramatically since. Well, but there isn't, because there was consent. I mean the modern doctrine draws a distinction between specific and general, when there's not consent to the general jurisdiction. Respectfully your honor, the doctrine has continued to draw the distinction between specific and general jurisdiction, even in some of the consent cases. Looking for example, to this Court's case of Carnival Cruise, there, one of the issues was whether there could be consent when there was no relationship to the forum. This court has accepted that that is acceptable, but that distinction remains. Can I ask you hypothetically, I'm saying this hypothetically. If I disagree with you, that under Daimler, you have a due process right only to be subject to general jurisdiction when you're at home. If I disagree with that, do you lose? Accepting your hypothetical disagreement Justice Callahan, we still would not lose. Tell me how you would win, if I don't agree with you on that point. Even if you agree that Daimler does not create only that right, allowing this exercise of general jurisdiction in Section 5101, would functionally undermine the rule anyway. We would win because of the inconsistency that would exist, if you were still allowed to be subjected to general jurisdiction anywhere, as long as you registered to do business in that state. The functional impact of allowing us to stand would be to functionally undermine Daimler. Now, specifically looking to how that undermining would happen, if you look to the text of Section 5101, Westlake is required to register here because it does a continuous and systematic course of business. In Daimler, this court had said that a continuous and systematic course of business was insufficient to create general jurisdiction. Let me say I don't understand what the real gripe here is. You don't contest that you got notice. You could have structured your conduct to avoid the exercise of jurisdiction. It would have come at a price, but many choices do. What's the problem here. To take your latter point first Chief Justice Kagan, it would have been very difficult and not just difficult in a hard sense, but legally difficult for Westlake to structure its conduct to avoid general jurisdiction here. Looking to the text of Section 5101, there is no definition given at any point for what continuous or systematic business looks like. The Ames Supreme Court, Well, this is it. I mean, it's true that there might be some hard cases. There always are hard cases on the line, but you have a multinational corporation that's doing business across the United States. That's continuous jurisdiction of a kind that's going to satisfy the statute. There's no real vagueness here. Accepting that they do satisfy the statute, this would still be unfair because it would still deprive Westlake of the predictability of knowing where its primary conduct would subject it to suit. Any place that it signs one of these things, if it signs, it's subject to suit. It's very clear. It would be clear that it would be subject to suit, but what is unclear is where its specific conduct would make it subject to a specific suit. While Westlake would know that it could be sued in Ames, it would have no idea where its conduct in the United States was subjected to suit within the United States. General jurisdiction means that a Florida plaintiff could come to Ames seeking the benefit of innovator liability, But you could check for the states that have this innovator liability and go in those states, you're better off. That's true, Justice Callahan, we could avoid doing business in some capacity in those states. There is still the question of whether we would be subject to innovator liability from our interstate business activity. But putting that aside, it's not just innovator liability, it could be any sort of suit. The problem here is the lack of predictability about where your forum conduct will subject you to suit. It's helpful to remember that this case is decided against the backdrop of specific jurisdiction. This court has seen general jurisdiction as a safety valve as a way to ensure that there is at least one place that a plaintiff will be able to bring a suit. That is a very different conceptualization than what 5101 captures. Section 5101 and others, The question is whether that conceptualization is the right one, where the company has itself consented and where the state puts a company to a choice and the company itself consents. There's nothing unpredictable about what the company is consenting to here. The company doesn't like it because it will subjected to suit across the United States, any place that it signs this agreement. I'm sure you'd rather defend every suit in Delaware, but there's nothing unpredictable about the opposite system. Chief Justice Kagan, we feel that this is similar to the question that was considered in Daimler and putting aside briefly the issue of consent or lack of consent in Daimler But isn't that the whole issue? That is the whole issue. I mean, the issue right here of predictability and the idea that by consenting you would be subject to suit in every state. Justice Sotomayor, you are concurring in the judgment alone in Daimler, put forth a similar contention that a corporation does know where it's doing continuous and systematic business such that there would be predictability about where that corporation could be sued. It seems like, that petitioners make some of their arguments, the same arguments under general and under personal, and they seem to go back and forth. Is that a problem in their case? Do the arguments have to stay in personal and general? Or can they can they cross-pollinate? We believe that the two must be held distinct given the reach of Section 5101 and general jurisdictions specifically, it is improper to consider a specific plaintiff's interests in this particular case when whatever this court holds on Section 5101 will bind Westlake in all cases for all suits by all plaintiffs. Your honors, seeing that my time is elapsing, we respectfully requests that you affirm the decision of the Ames Supreme Court and hold 5101 unconstitutional. Thank you. Thank you, Council. Council. Madam Chief Justice, may I please the court. I would like to make two primary points on rebuttal. The first is that Westlake, again today fights the substance of innovator liability, even though they've already conceited below that the innovator liability is not an issue here, the important question is, how does innovator liability affect jurisdiction? An innovator liability inexorably links every brand name DZ bottle, with every bottle of generic DZ because they both have the exact same label and more specifically, a label that Westlake has the exact same legal duty on. Council can I just point you to the general liability. Opposing counsel talks about how this could happen in every state and I know you mentioned when you were here before that it hasn't happened in every state, but don't we have to worry about the fact that it could and I mean, that's a possibility and so that everyone, every company would be subject to being sued in every single state. Two primary points in that, Your Honor. The first is, I want to be clear, 11 states have passed statutes, not judicial opinions, saying that they don't plan to exercise consent. That they don't plan to, or that they are right now? But that they're forbidden from, they'd have to repeal those statutes, but more broadly, even if a couple of dozen states, for example, were to decide that consent, the registration is how they want to structure the way their state is, there would still be many options that Westlake has in each one of those states in a way that's very different from doing business jurisdiction. They would have the ability to, for example, use third-party entities. They would have the ability to decide that their localized activity is going to be low enough to be under the registration and in fact, in many states in Pennsylvania, for example, violating a registration clause doesn't come with much of a penalty at all. It's a $500 fine, and you can't receive a jury verdict in a non-debt action unless you register on the day the jury goes out and unregister when they come back. There's a lot of very low bars for these registration statutes and I think it helps to establish that Daimler and Goodyear were about notice and structuring of conduct. Anytime personal jurisdictions had issue those are what's at play. In the specific jurisdiction contexts is the court saying worldwide Volkswagen, it's always going to be about structure. Do I want to be subject to a lawsuit here or here? I can sever my connection. I can change my connection based on specific jurisdiction. Do you want to respond to when I asked counsel for Westlake, if I don't agree that Daimler stands for the proposition that you can only be sued at home, do you lose? What's your response to that? No, Your Honor. It also depends on how you're on how Your Honor comes that decision. The first is, does due process have to do with the general process by which jurisdiction is exercised? Or does it have to do with an actual substantive right flowing from the decisions? If it's about the process consent to still valid, but even if you decide that general jurisdiction itself as a substantive right under their unconscious conditions doctrine a relationship can be sufficient to overcome unconstitutional conditions. I see my time is expired, so I asked this court to reverse the Supreme Court of Ames and find jurisdiction straightforwardly fair. Thank you. Thank you Council. Thank you to all the Council. Okay. I think we get up now; is that right? All rise. Thank you. You can all be seated I think I have some awards to give out. Which you've all waited patiently for. Then we'll make a few remarks and then retire for the night and the three of us will also speak to the teams upstairs individually. I'll give my remarks later, but I'll just say right now, this was absolutely great and it did not seem obvious at all who should go home with the prizes, but had to make a decision. The best oralist goes to Morgan Sandhu. The best brief goes to petitioner, the Carrie Buck team. The best overall team, is that the third one, the best overall team? Also goes to the petitioner, the Carrie Buck team. Congratulations. You all did a really marvelous job. She can reclaim her title now of Chief Justice Budd. I just want to say how impressed I am with all of you. To decide to do this and to carry through all the way up until the finals. I know it takes a lot of extra work. Not like you don't have other things that you have going on and you just did it beautifully. Everybody knew their case, they knew their issue, everybody was responsive, you were poised, you weren't looking at any notes, you would listen to the question and answered it the best you could knowing that there were holes in your case. This is something that you're going to remember and be able to draw on for the rest of your lives, so really congratulations and thank you for doing this. Justice Callahan. Well, I have to say this is one of those situations where I could decide this case much more easily than I could pick between all of you advocates and between the briefs as well. I have to go to court this Thursday and Friday in Phoenix and I'm going to be so disappointed in the lawyers. I'm just going to tell you that right now. But you've set such a high bar. It was such a pleasure. In reading the briefs, I actually described that I loved both of your introductions in the briefs. They were so much fun. I'm not such a geek that I just always have fun reading briefs. I'm not going to tell you that. The briefs were really fun to read and just really page burners, I have to say. You were all so poised. I know how hard you worked to be here, I would be delighted to have you appear in front of me tomorrow and you could hold your own with any of the people that I see. You had different personalities, you had different styles, but there was not a major faux pas. Sometimes when you judge these, someone gets the deer in the headlights look and it's scary for them, but you were all just amazing. You all answered the questions and it was so difficult and it was so close, so beautiful job all of you. A deer in the headlights look. I understand that just a couple of years ago, wasn't it? That somebody stood up at the podium and promptly fainted, but then went on to win best oralist. I might be making that up. But I want to give a few thank yous. First, you can take the girl out of the deanship, but not the deanship out of the girl or something like that. These people were thanked earlier this evening, but just here at the event itself, I want to thank all the people who arranged this for the BSA and especially Karim and Stacey and Julia who did such a great job. As hard as the participants in this event worked, so too the organizers of this event put in some long hard hours and it really showed, so thank you all. I want to thank Yvonne Smith. Indefatigable. Does she ever get tired of doing this I want to know. Because Yvonne has been at Harvard Law School since 1987, which was the year after I graduated, which I'm kind of old these days. Yvonne was doing this job all the way through my deanship, so year after year, I thanked Yvonne, and year after year, I felt really grateful to have her. Again, thank you, Yvonne, for doing everything you do. In absentia, I take it Tejinder Singh is not here. Is that right? I do want to thank Tejinder Singh who put together this problem. He's been doing that for some number of years now. He's an awesome lawyer, he was a student of mine, Mr. Singh was, and he was a great student. He's argued before me on the Supreme Court and he's a great advocate. He had a particularly difficult time or a difficult task this year because usually he does this with a partner of his. The partner is somebody who was also a student of mine, who was a classmate of his and a great friend of his, but she just bailed out on him this year. The reason she bailed out on him this year is that she's the Solicitor General of the United States. Just the reason I say this is because one day she was sitting there where you're sitting now, as was Mr. Singh. Ten years, 15 years, 20 years down the road, who knows? People have gone on to incredible things from where you're sitting after doing the kind of job that you did today. Congratulations on having done a fantastic job and congratulations on all the great things that all of you, the oralists and the non-oralists alike are going to do in the future. This was incredibly fun for me personally. I picked up all these materials this morning, I hadn't looked at them prior to that, and I said, oh my gosh, this is about Ford. It's like, okay, I can do this pretty quickly. But it was a lot of fun for me to look at Ford again and to look at this problem and to try to figure it all out. I take it that this was just a coincidence that Mr. Singh put the problem together before he knew I was coming, but you can tell him that he produced a really fun oral argument for me. But partly it was really fun because of the quality of the briefing and the arguments in this case. The briefs were really a pleasure to read. You read one and you thought that's fantastic and then you read the other and you thought that's fantastic too. Who's going to get this prize? That's the same way I felt listening to all of you do the arguments. Each of you, as Judge Callahan said, had your own style, so you weren't interchangeable at all. An important thing for an advocate is to develop a personal style and to be the person you are. You could see that each of you had his or her own style and it was great, each of you in your own way. We had a hard time picking between the briefs and we had a hard time picking among the oralists and all of you did a really fabulous job and I look forward to talking with you more upstairs. But I know how many countless hours people put in in this event, and again, both the oralists and the brief writers. The oralists get the glamour roles, but the other people on the team are just as important. All 12 of you really should feel very proud of yourselves. The family and friends who are here, all of you should feel super proud of them, and congratulations again. Have a good night. To the teams, we'll see you upstairs.
