[00:00:00] Speaker 01:
All right good morning everyone we are calling the matter of cohen versus infinite group inc case number two four dash four six nine five each side will have 15 minutes if appellants would like to reserve time for rebuttal please be aware you're responsible for keeping track of your own time and if you are going to do that please let me know how much time you'd like to reserve yes your honor five minutes please okay all right go ahead counsel please the court my name is david sims i represent the plaintiff in this matter we're here on a

[00:00:30] Speaker 05:
Motion to dismiss for lack of personal jurisdiction that the lower court granted and should not have the Basic question of constitutional due process is one of fairness whether a defendant has behaved in such a way that they've either purposely availed themselves of the forum of the

[00:00:53] Speaker 05:
Out-of-state form or purposefully directed their activity into that form depending on what kind of cause of action theory are proceeding on Mr.. Cohen is proceeding on both causes of action both a contract cause of action which is the purposeful of ailment and a retaliation statutory tort cause of action which is a purposeful direction the defendant in this case moved only on the very first prong of the purposeful curtailment of

[00:01:21] Speaker 05:
arguing that Mr. Cohen was essentially a kind of a COVID type remote employee who they didn't care where he worked, could have worked anywhere on the planet.

[00:01:32] Speaker 05:
And therefore they did not purposefully avail themselves of Oregon.

[00:01:37] Speaker 05:
The defendant is in New York.

[00:01:38] Speaker 05:
Mr. Cohen is in Oregon.

[00:01:41] Speaker 05:
And that was their basic argument.

[00:01:43] Speaker 05:
They cited several cases out of jurisdiction.

[00:01:48] Speaker 05:
for this proposition.

[00:01:49] Speaker 05:
They did not cite the numerous cases out of jurisdiction, including one from Maryland, that say remote employees can create personal jurisdiction.

[00:02:02] Speaker 05:
But the basic question here is, what, if anything, did the defendant do that we can say, hey, they reasonably availed themselves?

[00:02:12] Speaker 05:
And I'm starting with the contract theory of the forum, Oregon.

[00:02:17] Speaker 05:
And that answer is, to me, I have struggled with this case because it's so overwhelming what they did.

[00:02:24] Speaker 05:
They started by first negotiating with Mr. Cohen to take on a managerial agent level job, namely president of one of their subsidiaries.

[00:02:36] Speaker 01:
Council, they didn't reach out directly to Mr. Cohen at first, though, correct?

[00:02:40] Speaker 01:
I mean, he was someone who was going to help them find somebody, and then he realized, wait, I might be perfect for this job.

[00:02:48] Speaker 05:
Yes, but you said they didn't reach out.

[00:02:51] Speaker 05:
Yes, they did, in that their recruiter

[00:02:54] Speaker 05:
reached out.

[00:02:55] Speaker 05:
Their recruiter was a third party, but it was an agent of them.

[00:02:59] Speaker 05:
So I'm only quibbling with the they.

[00:03:01] Speaker 05:
They did reach out, but it is true that, at least in the very initial call, that recruiter knew Mr. Cohen from business circles.

[00:03:11] Speaker 05:
These are cybersecurity services.

[00:03:13] Speaker 04:
Correct.

[00:03:13] Speaker 04:
Yes, Your Honor.

[00:03:14] Speaker 04:
OK.

[00:03:15] Speaker 05:
Yes.

[00:03:19] Speaker 05:
But again, this is only one aspect of the Burger King analysis.

[00:03:24] Speaker 05:
the prior negotiations.

[00:03:26] Speaker 05:
Then you get into the contemplative future activities and the other factors.

[00:03:31] Speaker 05:
But I think that in this case, the negotiations, at all times, the defendant knew that Mr. Cohen was officed and a resident of Oregon.

[00:03:44] Speaker 05:
There was never any question about that.

[00:03:47] Speaker 03:
Let me stop there, because you're not even getting to the other facts about the customers.

[00:03:52] Speaker 03:
the other employees.

[00:03:53] Speaker 03:
But let me just ask you there, if the only connection here were Mr. Cohn living at his request in Oregon, would there be personal jurisdiction?

[00:04:06] Speaker 05:
If you need to ask for clarification, are they installing him as a managerial president of their subsidiary in order?

[00:04:15] Speaker 05:
Yes.

[00:04:15] Speaker 05:
Then the answer is clearly yes.

[00:04:17] Speaker 05:
That would be enough in your view.

[00:04:19] Speaker 05:
Yes.

[00:04:19] Speaker 05:
Not even a question in my mind.

[00:04:21] Speaker 05:
You guys get to decide.

[00:04:23] Speaker 05:
Thank you.

[00:04:24] Speaker 05:
We're not supposed to decide.

[00:04:26] Speaker 05:
I don't like to overstep my...

[00:04:30] Speaker 04:
Facts are presumed in favor of the plaintiff here.

[00:04:32] Speaker 05:
And that's another factor.

[00:04:34] Speaker 05:
That's another factor.

[00:04:35] Speaker 05:
Even if you take their factual theory with some grain of salt that he was a remote employee, that's not my view.

[00:04:44] Speaker 05:
That's not our view.

[00:04:45] Speaker 05:
And under the law, discrepancies like that must be resolved in favor of the plaintiff.

[00:04:51] Speaker 04:
We're not dealing with summary judgment here.

[00:04:52] Speaker 04:
We're dealing with being bounced out of court.

[00:04:54] Speaker 04:
That's correct.

[00:04:55] Speaker 01:
And counsel, then what are we to make about the choice of law provision in the contract?

[00:05:01] Speaker 05:
Well, that's a good question.

[00:05:03] Speaker 05:
The choice of law provision in the contract, first of all, was not a signed contract.

[00:05:08] Speaker 05:
Were you talking about the employment agreement?

[00:05:10] Speaker 05:
Well, that's another great question.

[00:05:12] Speaker 05:
Yeah.

[00:05:14] Speaker 04:
As to which there's a factual dispute.

[00:05:16] Speaker 04:
There's a factual dispute on that.

[00:05:18] Speaker 05:
The contract wasn't signed.

[00:05:22] Speaker 05:
The contract was not, it's a funny contract if you read it.

[00:05:26] Speaker 05:
It is about the temporal duration of the employment only.

[00:05:31] Speaker 05:
That's it.

[00:05:32] Speaker 05:
How long are you going to be employed?

[00:05:34] Speaker 05:
It doesn't have to do, and so for that question, it might come into play, but not on the questions that we've presented.

[00:05:42] Speaker 05:
We've presented a contract claim because they breached, just flagrantly breached their agreement to compensate him when he took over

[00:05:50] Speaker 05:
as the second managerial agent of their second subsidiary for another year, that contract is, there is no contract.

[00:06:00] Speaker 05:
So there is no choice of law provision in that.

[00:06:02] Speaker 03:
And remind me, is it a choice of law only or does it also go specifically to jurisdiction?

[00:06:08] Speaker 05:
Well, Burger King says that choice of law, I'm sorry.

[00:06:12] Speaker 03:
In the contract.

[00:06:13] Speaker 03:
What are the terms of the contract?

[00:06:14] Speaker 03:
It's a choice of law, just flat out.

[00:06:17] Speaker 03:
Yes, ma'am, I think it is.

[00:06:18] Speaker 03:
With no delineation as to jurisdiction versus choice of law.

[00:06:24] Speaker 05:
Forgive me, your honor.

[00:06:25] Speaker 05:
I don't remember.

[00:06:26] Speaker 05:
The NDA, I think, had a choice of law.

[00:06:30] Speaker 05:
Non-disclosure agreement.

[00:06:31] Speaker 04:
And a non-disclosure agreement.

[00:06:32] Speaker 04:
Yes, yes, your honor.

[00:06:33] Speaker 04:
The non-disclosure agreement is distinct from the employment agreement.

[00:06:35] Speaker 04:
Yes, yes, your honor.

[00:06:36] Speaker 04:
Very distinct.

[00:06:38] Speaker 05:
Well, I'll look.

[00:06:40] Speaker 05:
I don't remember, your honor.

[00:06:41] Speaker 03:
That's fine.

[00:06:41] Speaker 05:
No, that's fine.

[00:06:42] Speaker 05:
Keep moving.

[00:06:46] Speaker 04:
I think I could be wrong.

[00:06:48] Speaker 04:
I believe that the non-disclosure agreement identified New York as a choice of law and forum, but it was not so specified in the employment agreement.

[00:06:55] Speaker 05:
In the other agreement.

[00:06:56] Speaker 05:
That's my recollection as well.

[00:06:58] Speaker 04:
If there's a factual dispute in the employment agreement, then your client denies actually signing that employment agreement.

[00:07:03] Speaker 05:
Not only denies signing it, which is a huge point, but also denies that it would even come into play because of the content of the contract.

[00:07:10] Speaker 05:
It is only on the duration of his employment.

[00:07:14] Speaker 05:
not on the contract claims that have been brought here.

[00:07:18] Speaker 01:
Well, counsel, what's your position as to, at what point in this timeline from when he's hired or recruited to you get here before us, when did IGI have sufficient minimum contacts in Oregon for jurisdiction?

[00:07:39] Speaker 05:
Well, initially, or when did it become overwhelming?

[00:07:42] Speaker 05:
I mean, I think the answer is on the day they installed him as their president.

[00:07:52] Speaker 05:
And maybe even, because by that time, you now have the prior negotiations in place, which your honor has asked some questions about.

[00:08:00] Speaker 05:
You then have an offer.

[00:08:01] Speaker 05:
You have a contract, because there was a offer letter that was accepted.

[00:08:06] Speaker 05:
And then, not only that, but you have anticipated future consequences, where for the indefinite amount of time forward, he is going to be their managing agent in Oregon.

[00:08:19] Speaker 03:
What are the other facts?

[00:08:21] Speaker 03:
We keep beating up that he's the managing agent, he's the president.

[00:08:25] Speaker 03:
What are the other facts in your view?

[00:08:28] Speaker 03:
that would tilt toward jurisdiction.

[00:08:30] Speaker 05:
Fine, your honor.

[00:08:31] Speaker 05:
Things like they expanded their role in Oregon over time.

[00:08:37] Speaker 05:
They hired Mr. Raimondi as another senior executive in Oregon, senior, I think, vice president of sales or some title, but another executive that they hired in Oregon.

[00:08:50] Speaker 05:
They asked Mr. Cohen to essentially run

[00:08:56] Speaker 05:
Seek sales opportunities in Oregon and outside From Oregon and these are all directions that this defendant is saying hey go do this from Oregon

[00:09:10] Speaker 05:
So what else?

[00:09:12] Speaker 05:
How about when they did it a second time and entered into essentially a second contract to install him as the acting president?

[00:09:21] Speaker 05:
I'm not sure, Your Honor.

[00:09:22] Speaker 05:
I actually struggled with that question about when.

[00:09:25] Speaker 05:
I concluded it doesn't really matter because at some point in time... The important question is,

[00:09:35] Speaker 05:
Upon the filing of the complaint not some time before then yes I mean I think it's a legitimate question because it's it's interesting But I don't think it matters because at some point in time prior to the time this complaint was filed there was mountains of personal jurisdiction evidence that were ignored Ignored by the lower court and by the way unfortunately having practiced or and I love or and I love our judges, but boy they're citing

[00:10:02] Speaker 04:
Purposeful curtailment cases in the purposeful direction there, you know, they really missed it and we all have bad days So but they did they missed it here both on the law and the facts I mean in terms of the contractual in terms of the contemplated future consequences and the actual course of dealing which are some of the factors were to look at it's my understanding that they

[00:10:26] Speaker 04:
not only established bank accounts and deposited money in the bank accounts of Oregon and dealt in that fashion with it, but once things start to go awry, I could be wrong on this, but I understand that IGI actually referred to compliance with Oregon law in terms of every aspect of the termination.

[00:10:45] Speaker 04:
They deferred to Oregon law with respect to that, correct?

[00:10:47] Speaker 05:
You're absolutely correct.

[00:10:49] Speaker 05:
They sent my client a letter saying, essentially we've complied with all Oregon law.

[00:10:54] Speaker 05:
They knew Oregon law applied.

[00:10:58] Speaker 05:
Do you really think that they were unfairly called into this court?

[00:11:02] Speaker 05:
It's not even a close call to me.

[00:11:04] Speaker 05:
I'm sorry to say that.

[00:11:06] Speaker 05:
And you guys will tell me where I'm wrong if I am.

[00:11:09] Speaker 05:
But I just don't see it.

[00:11:10] Speaker 05:
You're absolutely correct, Your Honor.

[00:11:12] Speaker 05:
They paid Oregon state taxes.

[00:11:14] Speaker 05:
They shipped equipment.

[00:11:16] Speaker 05:
Now, it was just a computer.

[00:11:17] Speaker 05:
My friend and the others said, wow, it's just a computer.

[00:11:20] Speaker 05:
But they shipped it to them from Oregon.

[00:11:22] Speaker 05:
That's a big fact.

[00:11:24] Speaker 03:
I think you've got to rely on more facts than the fact that he's employed there.

[00:11:28] Speaker 03:
We're looking at an economy now with the gig economy, although he is an employee, not an independent contractor, where people are working remotely.

[00:11:38] Speaker 03:
So the concern I have is, at what point do you really move into what's literally nationwide jurisdiction, which I don't think is what the Supreme Court envisioned, to what are the specifics of this case?

[00:11:53] Speaker 03:
And here, that's what I go back to my original question.

[00:11:59] Speaker 03:
If it had only been him and his contract, your position is there would still be jurisdiction.

[00:12:05] Speaker 03:
And then I asked you, what else is there?

[00:12:09] Speaker 03:
Little by little tease that out it seems.

[00:12:11] Speaker 05:
I'd like to do more than a little by little tease it out.

[00:12:13] Speaker 03:
Do you have any other facts that we should look at?

[00:12:15] Speaker 05:
Yes.

[00:12:16] Speaker 05:
He ran the business both externally and corporately internally from Oregon at their direction.

[00:12:24] Speaker 05:
I'm not focused on him per se.

[00:12:26] Speaker 05:
I'm focused on what they asked him to do from Oregon.

[00:12:31] Speaker 05:
So yeah, so I mean sending out

[00:12:36] Speaker 05:
all the different social media constructs that he sent out, daily interactions with his employees back in New York.

[00:12:47] Speaker 05:
But he's doing it from Oregon at their direction.

[00:12:50] Speaker 01:
Counsel, I just want to make you aware that you're going into your final time.

[00:12:53] Speaker 05:
I'll stop there.

[00:12:53] Speaker 05:
Thank you.

[00:13:02] Speaker 00:
May it please the court, counsel?

[00:13:04] Speaker 00:
My name is Sam Blatnick.

[00:13:06] Speaker 00:
I represent the defendant appellee in this matter.

[00:13:08] Speaker 00:
We're here today to decide an issue of specific personal jurisdiction.

[00:13:12] Speaker 00:
I would like to start by saying if my client had recruited Mr. Cohen, affirmatively knowing he was in Oregon, I think there might be a different situation.

[00:13:21] Speaker 00:
If the contract that my client provided required him to stay in Oregon, we might be in a different situation.

[00:13:27] Speaker 00:
Mr. Cohen submitted himself when we were trying to get suggestions from him

[00:13:32] Speaker 00:
and affirmatively recruited us to hire him, pursuant to a contract that allowed him to work anywhere.

[00:13:38] Speaker 00:
For that reason, Your Honor, I believe this is almost identical to your decision in Sleppian from 2000.

[00:13:43] Speaker 00:
under almost identical facts, although now we're in a pure remote environment.

[00:13:46] Speaker 00:
And I agree with what you were suggesting, Your Honor.

[00:13:49] Speaker 00:
If you were to file personal jurisdiction here, we could then be honoring personal jurisdiction when remote employees decide to go anywhere they want.

[00:13:56] Speaker 00:
And that's certainly not what the Supreme Court meant in Burger King and its progeny.

[00:14:01] Speaker 03:
Well, it wasn't like he went anywhere he wanted.

[00:14:03] Speaker 03:
There he was.

[00:14:04] Speaker 03:
And your client hired him.

[00:14:06] Speaker 00:
But he was free to go to California.

[00:14:07] Speaker 00:
He was free to go to Nevada.

[00:14:09] Speaker 00:
He was free to go to Arizona.

[00:14:09] Speaker 03:
But when they hired him, they knew he would be in Oregon.

[00:14:13] Speaker 00:
That is correct, Your Honor.

[00:14:14] Speaker 03:
They knew he would be in Oregon.

[00:14:16] Speaker 03:
They appointed him to essentially a managerial, fairly high ranking position, correct?

[00:14:23] Speaker 03:
Yes.

[00:14:23] Speaker 03:
And then it seems to me that surrounding that appointment, then they expanded

[00:14:30] Speaker 00:
Their operations and contacts with let's go through the context because I want to be mindful of Walden And whether the context that my client made were my clients context or those that were incumbent and inherent in mr. Cohen's Responsibilities, and I believe that they did to be the latter They hired mr. Cohen in 2021 who happened to be in, Oregon

[00:14:51] Speaker 00:
pursuant to an agreement that allowed him to be anywhere.

[00:14:53] Speaker 00:
And furthermore, just to clarify the record, we have three signed agreements.

[00:14:57] Speaker 00:
The NDA, we have an employment agreement, which is electronically signed, and it is in the file.

[00:15:01] Speaker 04:
There is a factual dispute as to the employment agreement, correct?

[00:15:05] Speaker 04:
I believe the agreement speaks for itself.

[00:15:06] Speaker 04:
Well, I understand that's your position, but there is a clear factual dispute.

[00:15:09] Speaker 04:
The district court, there was a factual dispute.

[00:15:11] Speaker 04:
How do you how does what the district judge analyze a factual dispute in the context of a motion to dismiss what the district court?

[00:15:17] Speaker 00:
Did and what I believe is perhaps the right thing to do your honor.

[00:15:20] Speaker 00:
We did not file a cross-appeal is Acknowledged that the NDA is a factor to consider at least as it relates to the NDA which is non-disclosure agreement Correct that was signed by part of the leading up to the hiring important Mr.. Platonick to clarify we got two different agreements here We have a nondisclosure agreement, and we have an employment agreement and as to the nondisclosure agreement

[00:15:41] Speaker 04:
And the discussion of choice of New York law, for example, but the employment agreement, there's a factual dispute in terms of whether or not it was signed or not, correct?

[00:15:49] Speaker 04:
I believe that is correct, Your Honor.

[00:15:51] Speaker 04:
And in the context of a motion to dismiss under Rule 12B1, you assume in all facts with respect to indeference to the plaintiff at that initial stage, correct?

[00:16:00] Speaker 00:
That is correct, Your Honor, although there was also an employee handbook that's part of the file as well.

[00:16:04] Speaker 00:
I understand.

[00:16:04] Speaker 00:
That he was working pursuant to.

[00:16:05] Speaker 00:
That also provides for New York jurisdiction.

[00:16:07] Speaker 04:
Yeah, yeah, okay.

[00:16:09] Speaker 04:
Okay, so if I can just follow up on your response to Judge McEwen's question in terms of remote work and people can move anywhere, certainly that that kind of situation can be addressed clearly in an employment contract that's clearly signed and there is no factual dispute.

[00:16:28] Speaker 04:
I mean, that's the kind of thing that could certainly be addressed in terms of how you deal with that.

[00:16:33] Speaker 04:
But the employment agreement allowed him to go anywhere.

[00:16:35] Speaker 04:
I understand.

[00:16:36] Speaker 04:
But an employment agreement could deal with the hypothetical you note in terms of going anywhere if it so chose and it was clearly signed and there's no factual issue as to that if that were the case, correct?

[00:16:48] Speaker 04:
I believe that's correct, Your Honor.

[00:16:49] Speaker 03:
You had mentioned Walden and it seems to me that the unilateral activity that the court spoke to in Walden is different

[00:16:58] Speaker 00:
Nature than what we're talking about here, so I'd appreciate your comments on that Yeah, and so what I want I actually would like to unpack this a little bit if I may your honor We have an on rigid test here in the 9th circuit.

[00:17:09] Speaker 00:
We have purposeful direction.

[00:17:10] Speaker 00:
We have purposeful available I believe purposeful available.

[00:17:13] Speaker 00:
I'm under the slap Ian decision which again is a virtually identical facts is the appropriate standard and that for you know concise opinion that the Smith found that there was no jurisdiction I believe is controlling as it relates to the

[00:17:25] Speaker 00:
purposeful direction, although, candidly, much like in Slepian, there are some factors here in addition to simply working in the jurisdiction.

[00:17:32] Speaker 00:
Correct.

[00:17:32] Speaker 00:
But those factors are all ancillary to his responsibility.

[00:17:35] Speaker 00:
He had to open a bank account.

[00:17:37] Speaker 00:
Yes.

[00:17:37] Speaker 00:
He chose to hire someone in Oregon.

[00:17:39] Speaker 00:
The company didn't.

[00:17:41] Speaker 00:
Do they work for the company or do they work for him?

[00:17:43] Speaker 00:
They work for the company at his hiring.

[00:17:46] Speaker 00:
Three customers out of thousands were in Oregon.

[00:17:48] Speaker 00:
He was not directed to target Oregon investors.

[00:17:50] Speaker 00:
He was not directed to target Oregon's customers.

[00:17:54] Speaker 00:
Because he happened to be in Oregon, he did things in Oregon that were attenuate to his job.

[00:17:59] Speaker 00:
Therefore, I respectfully submit that there was no purposeful direction.

[00:18:04] Speaker 00:
I would also, however, like to address the purposeful availment.

[00:18:09] Speaker 00:
I'd also like to address the purposeful direction, because it is in the briefing, and it is part of the judge's rulings.

[00:18:16] Speaker 00:
For purposeful direction, appellant relies on correspondence FR-99 through 106.

[00:18:24] Speaker 00:
And earlier, there was a reference to my client referencing Oregon law.

[00:18:28] Speaker 00:
That's not completely correct.

[00:18:30] Speaker 00:
My client sent a termination notice to Mr. Cohen.

[00:18:33] Speaker 00:
Mr. Cohen then waited until two days after the deadline for his last payment to be made, sent a letter saying he was speaking with the lawyer, and he referenced Oregon law.

[00:18:43] Speaker 00:
My client then responded.

[00:18:45] Speaker 00:
The correspondence here that my client was making was trying to resolve a dispute.

[00:18:49] Speaker 00:
It was not like in Bancroft where they were trying to instigate a dispute.

[00:18:52] Speaker 04:
Bancroft, you know, the master's... The client's response said, I thought, the record reflects, Oregon law is being followed by IGI in every aspect of your termination.

[00:19:01] Speaker 00:
In response to his accusations saying that on July 7th, that they were saying that my clients had not followed the law.

[00:19:07] Speaker 00:
So all they were doing was addressing, I apologize, all they were doing was addressing his allegations against my client.

[00:19:14] Speaker 00:
Which I mean, if you're trying to resolve something, isn't that a logical approach?

[00:19:19] Speaker 00:
And so... Well, let me...

[00:19:22] Speaker 01:
kind of push back on that.

[00:19:24] Speaker 01:
If you don't believe that you are governed by Oregon law, maybe the logical response would be we are following the law of New York, which is what we said applied.

[00:19:32] Speaker 00:
We don't dispute that.

[00:19:33] Speaker 00:
The law of Oregon is meant to protect an employee in Oregon.

[00:19:36] Speaker 00:
The law of wage payment in New Jersey is meant to protect.

[00:19:39] Speaker 00:
The optical law applies because he was working there, because he elected to work there.

[00:19:43] Speaker 00:
So it's an issue of substantive law versus personal jurisdiction.

[00:19:45] Speaker 00:
And it's our position that if this matter was properly filed in the Western District of New York, then that court would be applying Oregon law.

[00:19:52] Speaker 00:
We're not going to dispute that.

[00:19:57] Speaker 00:
And so, again, the facts we have are the following.

[00:20:05] Speaker 00:
Employee allowed to work anywhere he wanted, happened to hire someone there, bank account for purposes of his job,

[00:20:12] Speaker 00:
and one laptop shipped.

[00:20:14] Speaker 00:
No representative of IGI ever flew out there.

[00:20:17] Speaker 00:
During the interview process, all the trips were made by Mr. Cohen to IGI in New York.

[00:20:23] Speaker 00:
Again, IGI did not target him through a recruiter for hire.

[00:20:26] Speaker 00:
The recruiter targeted him for information about other candidates.

[00:20:30] Speaker 00:
Mr. Cohn was allowed to move anywhere he wanted.

[00:20:32] Speaker 00:
The district court found, based upon those, that there was no direct personal availment and there was no personal direction because the letters were written to Mr. Cohn, not necessarily to someone in California.

[00:20:46] Speaker 00:
And that's where, again, I think you have to distinguish between Yahoo and Bancroft.

[00:20:50] Speaker 00:
The question then becomes, if we're going to look at those as personal direction by sending letters to someone in a state, the question then becomes, were those letters expressly aiming at Mr. Cohen in an adverse way?

[00:21:05] Speaker 00:
And the Cohen distinguished, or Yahoo distinguished between Bancroft and that Bancroft, you had someone that was goading someone in delegation.

[00:21:12] Speaker 00:
And Bancroft, they sent a cease and desist letter

[00:21:15] Speaker 00:
Response of which had to be the person either had to drop the domain They had to stop using it or they had to file a declaratory judgment action, which is what they did the correspondence between my client and Mr.. Cohn again at 99 through 106 of the record is not goading Mr.. Cohn It's trying to resolve the matter with them even if every letter the end every single one of those letters my client ends I hope we can try to resolve this open try resolve this it was Mr.. Cohn who then ran and filed lawsuit in Oregon

[00:21:40] Speaker 00:
And so I think that you look at Yahoo and you look at Bancroft, this is more like Yahoo than it is like Bancroft as it relates to the purposeful available prong that Judge Nelson adopted.

[00:21:54] Speaker 03:
What's troubling here is that a lot of your emphasis it seems to me to be on the fact that he's in Oregon, he says, I want to work in Oregon.

[00:22:03] Speaker 03:
Fine.

[00:22:04] Speaker 03:
They could say,

[00:22:06] Speaker 03:
We don't want to establish this setup with Oregon, so we're not going to hire you.

[00:22:11] Speaker 03:
But once they decide to have an employee-employer relationship, it seems to me that you then kind of look anew.

[00:22:20] Speaker 03:
It's not like just that, oh, I want to be in Oregon, therefore I am a unilateral contact.

[00:22:25] Speaker 03:
It seems to me it takes two to tango in this situation.

[00:22:28] Speaker 03:
The company decides, OK, we're going to enter into this contract with this guy in Oregon.

[00:22:33] Speaker 03:
We're going to appoint him to a high-level position.

[00:22:35] Speaker 03:
He's going to do all these things on behalf of our company.

[00:22:39] Speaker 03:
And where is he going to do them from?

[00:22:41] Speaker 03:
Oregon.

[00:22:42] Speaker 00:
Or whoever he chose to be.

[00:22:43] Speaker 03:
No, but they knew that might be.

[00:22:46] Speaker 03:
Maybe he decided to go to California.

[00:22:48] Speaker 03:
But at the time they enter into the contract with him, they know that they are establishing a high-level employee in Oregon.

[00:22:57] Speaker 00:
Well, if we look to the Pico decision, P-I-C-O-2, we know that discharging responsibilities in a state does not itself give rise to jurisdiction.

[00:23:06] Speaker 00:
I believe Burger King stood for the same proposition.

[00:23:09] Speaker 00:
And so we can't just look to the fact that he was an Oregon employee.

[00:23:16] Speaker 00:
There has to be something more.

[00:23:17] Speaker 00:
And I believe counsel may have misspoke.

[00:23:20] Speaker 00:
We did reference the Perry decision, which is the District of Maryland decision from 2020 extensively in our brief.

[00:23:25] Speaker 00:
It found a lack of jurisdiction under fairly similar facts.

[00:23:29] Speaker 00:
And it is the, while not binding clearly on this panel, it is... Obviously, the opinions of the District Court of Maryland are great weight, I'm sure.

[00:23:36] Speaker 00:
It has become the de facto seminal opinion for citations.

[00:23:40] Speaker 00:
It's cited, it's such a thorough recitation of law as it applies to the facts.

[00:23:46] Speaker 00:
I believe it's the most cited case.

[00:23:48] Speaker 00:
And we cited it as well.

[00:23:50] Speaker 04:
But just in all candor with the humorous side, Mr. Blanknick, I think when you look at the, we've referenced the Walden Supreme Court case in 2014, and it's clearly the plaintiff's contacts in the forum are not the defendant's.

[00:24:04] Speaker 04:
That's what Walden stands for.

[00:24:06] Speaker 04:
But again, following up on an earlier question by Judge McEwen, if the plaintiff is a defendant's agent,

[00:24:13] Speaker 04:
then plaintiff's contacts may count as defendants, and then they clearly list some criteria with the analysis in terms of contract negotiations, on which we spent a lot of time so far this morning, contract terms, but also contracts contemplated future consequences.

[00:24:30] Speaker 04:
As Judge McEwen just suggested in her question, fourth party's actual course of dealing, all of which clearly anticipated in terms of contemplated future consequences and actual course of dealing, they clearly stand in favor of jurisdiction at this point, do they not?

[00:24:50] Speaker 00:
The contacts for the negotiations were New York.

[00:24:52] Speaker 00:
I understand.

[00:24:53] Speaker 00:
Mr. Cohen flew out there, my client is 3,000 miles away and that's so my client wasn't going to fly out 3,000 miles to hire one individual nor do they frankly want to litigate 3,000 miles away for that same reason.

[00:25:05] Speaker 00:
All of the negotiations were in New York.

[00:25:07] Speaker 00:
Mr. Cohen flew out several times to New York.

[00:25:09] Speaker 04:
You're focusing upon, I'm just trying to make sure you utilize your time accurately, I don't want to take up too much of your time, but you're focusing upon contract negotiations which may or not slightly favor jurisdiction and then you have contract terms

[00:25:21] Speaker 04:
which may be arguably neutral, but then you get to contemplated future consequences and actual course of dealing, both of which would favor jurisdiction.

[00:25:30] Speaker 04:
I'm looking at all the factors listed in Walden, not just the matter of contract negotiations.

[00:25:35] Speaker 04:
There are other factors to be considered by Walden, correct?

[00:25:38] Speaker 00:
The factors that are being considered here are things that necessarily would have been discharged by an individual who was hired, who happened to be an organ, wherever they happened to be, as opposed to somebody else at IGI saying,

[00:25:53] Speaker 00:
We want to target customers in Oregon.

[00:25:55] Speaker 00:
We want to build an office in Oregon.

[00:25:57] Speaker 00:
We want to have advertising in Oregon.

[00:25:59] Speaker 00:
These are things that, kind of like in Perry, were necessarily attenuate to the decision to hire a remote employee and hiring a remote employee itself.

[00:26:08] Speaker 00:
I believe respectfully does not give rise to jurisdiction because of the PICO facts given that discharging a job outside of that itself, discharging a job outside of the state does not give rise to a loan jurisdiction in that state.

[00:26:22] Speaker 03:
Well, not a loan.

[00:26:22] Speaker 03:
I mean I think PICO, to be honest, this case falls between and among the Ninth Circuit jurisdiction cases because we don't have something that I think is directly on point.

[00:26:34] Speaker 00:
Yeah and to be fair your honor I mean in assessing the Ninth Circuit cases and cases from other jurisdictions the response the reaction is you know we heard an analogy earlier I'll use a different analogy I mean cases are a little bit like dogs every dog's a little different right you're never gonna find the exact same one.

[00:26:49] Speaker 00:
We're not skinny cats.

[00:26:50] Speaker 00:
We've gone from skinny cats earlier and now we're with dogs.

[00:26:53] Speaker 00:
Even though you may love them all but they're not they're never gonna find completely overlapping facts and I truly think the closest overlap overlapping facts that

[00:27:02] Speaker 00:
that are in this circuit, at least in the Ninth Circuit level, is Slepian.

[00:27:06] Speaker 00:
And it is a situation where it was remote as an accommodation.

[00:27:11] Speaker 00:
And that's where I started with this.

[00:27:12] Speaker 00:
I'm going to finish with this.

[00:27:14] Speaker 00:
If this case was something where we had affirmatively, and that seems to be the thread throughout the cases in the country.

[00:27:19] Speaker 00:
If you affirmatively recruit someone in a remote situation, and I don't see how this can't be considered a remote situation.

[00:27:24] Speaker 00:
he was working from his home, 3,000 miles away, then you potentially give rise to jurisdiction.

[00:27:30] Speaker 00:
But that's not the case here.

[00:27:31] Speaker 00:
He took an opportunity and candidly, as this case plays out, was not qualified for the job, unfortunately.

[00:27:37] Speaker 00:
So my client had to make a very difficult decision.

[00:27:40] Speaker 00:
It was a very difficult decision in the summer of 2023 to terminate him.

[00:27:45] Speaker 00:
It wasn't a personal decision.

[00:27:46] Speaker 00:
It was one that was made for business.

[00:27:48] Speaker 00:
It was made for business with respect to an employee who happened to be in Oregon for the two years that he worked for us.

[00:27:55] Speaker 00:
I appreciate your time.

[00:27:56] Speaker 00:
Thank you.

[00:27:57] Speaker 03:
Thank you.

[00:28:09] Speaker 05:
Free to go anywhere else?

[00:28:10] Speaker 05:
With this refrain, he's free to be anywhere.

[00:28:12] Speaker 05:
He could be anywhere on the planet.

[00:28:14] Speaker 05:
That's not the test.

[00:28:15] Speaker 05:
The test is actual.

[00:28:16] Speaker 05:
The test is reality.

[00:28:17] Speaker 05:
Where were you?

[00:28:19] Speaker 05:
Oregon.

[00:28:20] Speaker 05:
That was known.

[00:28:23] Speaker 05:
And by the way, I mean, they say that, that, oh, it's free to be anywhere else.

[00:28:28] Speaker 05:
We don't know that.

[00:28:29] Speaker 05:
It never happened.

[00:28:31] Speaker 05:
All we know is he was from Oregon.

[00:28:34] Speaker 05:
They knew that, and they hired him in Oregon and kept him there for two years.

[00:28:38] Speaker 05:
And I really don't appreciate the comment about his performance.

[00:28:43] Speaker 05:
We'll deal with that in the litigation.

[00:28:47] Speaker 05:
Walden, the idea that

[00:28:52] Speaker 05:
They didn't direct the contact customers in Oregon.

[00:28:55] Speaker 05:
Well, that's just not true.

[00:28:56] Speaker 05:
It wasn't all the customers, a small number of customers, but they directed through Mr. Cohen and his contacts, which they hired to use, he sent out thousands of social media contacts in Oregon and elsewhere.

[00:29:11] Speaker 05:
That's in the record.

[00:29:13] Speaker 05:
Thousands.

[00:29:15] Speaker 04:
But again, under Walden, the criteria is not the plaintiff's contacts.

[00:29:19] Speaker 05:
It's the defendant's contacts, but then there are factors we look at to determine if the point of his acting in an agent capacity in those other categories is the point my argument your honor is that these acting actions were the defendant's actions because Mr.. Cohen was by them installed as the plan as the President understand these are their actions, and they knew it it's not like you know you've got a low-level salesperson with no real authority and

[00:29:46] Speaker 05:
to do something and this is the president and they're telling him what, look they're not going to say Mr. Cohen please direct your activities to these customers only because he's the president.

[00:30:01] Speaker 05:
They're relying on him to go win business anywhere he can and that in this case happens to include lots of activities in Oregon.

[00:30:14] Speaker 05:
They made the point that in the negotiations, and I think maybe ever, nobody from IGI came to Oregon.

[00:30:23] Speaker 05:
Well, Mr. Rudowitz never went to Florida in Burger King, and jurisdiction was appropriate over him.

[00:30:31] Speaker 05:
I think all of the factors,

[00:30:43] Speaker 05:
I think, tend towards jurisdiction.

[00:30:45] Speaker 05:
Some of them massively do, the anticipated future consequences and the actual course of dealing.

[00:30:52] Speaker 05:
But the first two, I submit, when you really look at them, to the extent there are some factual disputes about some of them, the prior negotiations and maybe the contract itself.

[00:31:01] Speaker 01:
Council, you are over your time.

[00:31:03] Speaker 01:
If you want to finish your sentence, feel free.

[00:31:06] Speaker 05:
I think I should win.

[00:31:08] Speaker 03:
I don't know what I was.

[00:31:11] Speaker 03:
I'm sorry.

[00:31:11] Speaker 03:
All right.

[00:31:11] Speaker 03:
Thank you.

[00:31:12] Speaker 03:
And he feels the opposite, so thank you.

[00:31:15] Speaker 02:
All right.

[00:31:19] Speaker 01:
Thank you, counsel.

[00:31:20] Speaker 01:
This matter is now submitted, and this concludes our arguments for this morning.

[00:31:25] Speaker 01:
Again, thank you to everyone and the clerk's office for their assistance.