[00:00:12] Speaker 02:
Good morning, Jamison Edsel for the appellant and cross-appellee.

[00:00:17] Speaker 02:
I'd like to reserve three minutes for rebuttal.

[00:00:19] Speaker 00:
May I please watch the clock?

[00:00:22] Speaker 02:
I'd like to start, may it please the court, I'd like to start by addressing the order of August 14th, 2023, where the district court dismissed plaintiffs' California Invasion of Privacy Act under Section 631 without leave to amend.

[00:00:37] Speaker 02:
The district court's opinion simply refers to a different case, Garcia v. Bill.com, and says it's dismissing our claim for all the reasons in Garcia.

[00:00:47] Speaker 02:
That was error because the cases are very different, both in the facts, the technology involved, and because I think

[00:00:56] Speaker 02:
The analysis in Garcia v. Build.com makes a few errors in the way that it interprets this type of fact pattern.

[00:01:05] Speaker 02:
First, I'd like to point out that in Garcia, that district court said that the plaintiffs were alleging the defendant either secretly recorded their chat box conversation or allowed a third party to eavesdrop it.

[00:01:19] Speaker 02:
It seems that the plaintiffs in that case weren't clear about their theory.

[00:01:22] Speaker 02:
Was it a first-party recording case, which would typically be governed more by Section 632, or was it a case involving a third-party unannounced eavesdropper, which would be a more proper 631 case?

[00:01:37] Speaker 02:
Our complaint here is very clear.

[00:01:39] Speaker 02:
There is a third party eavesdropper.

[00:01:41] Speaker 02:
We identified full story as one of the definite session replay providers that was operational on Papa John's website at the time.

[00:01:52] Speaker 02:
So this is a clear section 631 fact pattern.

[00:01:57] Speaker 02:
when the Garcia Court says that the plaintiffs failed to allege the presence of a third-party eavesdropper, that's just not applicable to our case.

[00:02:06] Speaker 03:
Counsel, I'm looking at your complaint.

[00:02:09] Speaker 03:
I'm looking at you and you are, I want to make sure I'm not missing something.

[00:02:13] Speaker 03:
You're talking about count one at this point, the SIPA claim.

[00:02:15] Speaker 03:
Yes.

[00:02:16] Speaker 03:
Okay.

[00:02:16] Speaker 03:
All right.

[00:02:17] Speaker 03:
And I'm looking at your paragraphs and I see that you'd say that Papa John's contract was intentional, it perfectly installed code which allows it to eavesdrop.

[00:02:27] Speaker 03:
That's paragraph 72.

[00:02:29] Speaker 03:
Paragraph 73, the information Papa John's intercepts.

[00:02:33] Speaker 03:
But Papa John's is a party to the conversation.

[00:02:37] Speaker 02:
Party John's is a party to the conversation, but there's no exception for parties to the conversation under 631.

[00:02:42] Speaker 02:
The presence of full story is clear.

[00:02:45] Speaker 02:
So at ER 6244, we say that this technology would transmit the plaintiff's communications to servers controlled by full story.

[00:02:55] Speaker 00:
So the other side says that a party cannot eavesdrop on its own conversation.

[00:03:03] Speaker 00:
And I didn't see in the complaint anything that clearly said that full story was eavesdropping on the conversation that you had a suit against full story.

[00:03:17] Speaker 00:
So that seems like a good argument by the other side.

[00:03:20] Speaker 00:
What's your argument for that?

[00:03:22] Speaker 02:
Right, I disagree.

[00:03:23] Speaker 02:
631, there is no party exception because all parties must consent to the presence of any additional listeners.

[00:03:32] Speaker 02:
The technology we described in a lot of detail here

[00:03:35] Speaker 02:
sends every plaintiff's, every website visitor's inputs to full story servers as they're being entered on the plaintiff's computer.

[00:03:44] Speaker 00:
So we're in your complaint.

[00:03:45] Speaker 00:
Let's take a look at the complaint.

[00:03:49] Speaker 00:
Beth described that full story as a eavesdropper on the conversation.

[00:03:55] Speaker 02:
Yes, so the first one, we have ER, there's two complaints in the case.

[00:04:01] Speaker 02:
So the second amended complaint at ER 29, paragraph 49, I believe.

[00:04:08] Speaker 02:
I'm just getting to it.

[00:04:11] Speaker 02:
As the user interacts with any website, including Papa John's, with the embedded full story script, each clip, tap, et cetera, is sent in packets to full story servers.

[00:04:21] Speaker 02:
We further allege that Full Story uses the information they get to run some analytical analysis.

[00:04:33] Speaker 02:
They take the sessions and then they put them in their own dashboard that then the website operator can access to get more insight into how people are navigating.

[00:04:45] Speaker 02:
There's not only a receipt of the communication by full story, but there's a use of it.

[00:04:50] Speaker 02:
And that's the service that they're offering to the website operators.

[00:04:53] Speaker 02:
We can use this script to get more information from the plaintiff's session, every click, tap, everything they're doing.

[00:05:01] Speaker 02:
We can see that, and then we can show it back to you.

[00:05:04] Speaker 02:
And this is more than you would see just operating a normal website.

[00:05:09] Speaker 01:
The allegations that you just referenced were made after the district court dismissed the CEPA claim with prejudice.

[00:05:16] Speaker 01:
So what do we do with that?

[00:05:17] Speaker 02:
I'm not sure that's correct.

[00:05:18] Speaker 01:
I think in the first... I thought you just said that you were referencing the second amended complaint.

[00:05:22] Speaker 01:
And my understanding was the district court dismissed the CEPA claim based on the first amended complaint.

[00:05:28] Speaker 02:
I think the first dismissal was with leave to amend, unless I could be mistaken.

[00:05:34] Speaker 01:
I think you might be mistaken.

[00:05:35] Speaker 01:
My understanding is that the district court addressed the SEPA claim once in the first dismissal order and dismissed with prejudice.

[00:05:42] Speaker 02:
Sure, sure.

[00:05:42] Speaker 02:
And I believe that the particular allegation I'm talking about was also present, yes, in the first amended complaint.

[00:05:51] Speaker 02:
This is ER 62.

[00:05:54] Speaker 01:
and it's paragraph forty four it's basically the same paragraph so it was in the it was in the first minute complaint also same allegations okay so just to tie this up as a general matter do you think that in assessing your SIPA claim we can consider factual allegations that might be new in the second amended complaint or not i suppose not if we were dismissed with

[00:06:20] Speaker 02:
Well, actually, you know, I take that back.

[00:06:23] Speaker 02:
I think we could because we didn't have a final order, so we couldn't have appealed the first dismissal.

[00:06:28] Speaker 02:
I think we could take a shot at adding new allegations and say, as we did, that these are still a good SEPA claim.

[00:06:35] Speaker 02:
I mean, we're still in the court.

[00:06:37] Speaker 02:
Rule 15, you're usually supposed to be granted, you know, freely leave to amend when justice requires.

[00:06:42] Speaker 02:
So if there was more that we could add,

[00:06:45] Speaker 02:
in the second amount of complaint and it would change the outcome, I think it would be fair for this court to consider it.

[00:06:50] Speaker 02:
But I think the allegations in the first amount of complaint, the overall description of how this technology works didn't really change very much.

[00:06:59] Speaker 02:
It's the same in the first amount of complaint, second amount of complaint.

[00:07:02] Speaker 02:
So we might have made some clarifications here and there, but the key factual allegations about what was happening and how the technology worked, those did not substantially change between the two complaints.

[00:07:14] Speaker 03:
Council, I'm still puzzled by the allegation in Count 1 that Papa John is intercepting information.

[00:07:22] Speaker 03:
This is information that your client is sending to Papa John.

[00:07:25] Speaker 03:
What are they supposed to do with this?

[00:07:27] Speaker 03:
How can they get the credit card information without intercepting it?

[00:07:32] Speaker 02:
Yeah, that is certainly true to some extent.

[00:07:35] Speaker 02:
But as I mentioned, this technology will also let Papa John see things that the user didn't actually intend to submit.

[00:07:42] Speaker 02:
So because it's instantaneous,

[00:07:44] Speaker 02:
The session replay code captures keystrokes the second they're made.

[00:07:48] Speaker 02:
Someone might be starting to type in, like, oh, here's my address.

[00:07:52] Speaker 02:
And then they might think, no, I don't want to use that address.

[00:07:55] Speaker 02:
I want to use a different address.

[00:07:56] Speaker 02:
They delete it.

[00:07:56] Speaker 02:
They come back.

[00:07:57] Speaker 02:
All of that.

[00:07:58] Speaker 02:
The initial entry, the deletion, all of that is sent to full story.

[00:08:02] Speaker 02:
So at the end of the day, Papa John's can actually get communications that the user never even fully intended to send to Papa John's.

[00:08:11] Speaker 02:
It's almost like they're getting their drafts.

[00:08:13] Speaker 02:
But the SIPA statute also, I mean, it prohibits the employment of anyone to learn the content.

[00:08:21] Speaker 02:
Papa John's is liable here because they employed Full Story to learn the contents, and Full Story was an unannounced third party.

[00:08:29] Speaker 02:
So either way, there's a good SIPA claim here.

[00:08:32] Speaker 02:
And the district court just conflated the two parties and basically said under this logic from a different district court case, Graham v. Noom, that any time a website uses a tool like that,

[00:08:44] Speaker 02:
It can be treated just the same as the website operator.

[00:08:48] Speaker 02:
It's just using a recording, and then, therefore, it's more like a 632 link.

[00:08:53] Speaker 03:
Have you alleged the full story of accessing this information in real time?

[00:08:58] Speaker 02:
I mean, they're receiving it at their servers in real time, and then I don't know exactly how quickly it takes them to... I think it's probably at the end of the session is when they use it, but again, still a SIPA violation.

[00:09:09] Speaker 02:
It doesn't matter when you go in to read an intercepted communication.

[00:09:14] Speaker 03:
So if A and B are having a phone conversation and B is taping it and then plays it later, plays it the next day for C, that's a violation?

[00:09:25] Speaker 02:
That's a different fact pattern.

[00:09:28] Speaker 02:
I don't necessarily believe would be a 631 violation.

[00:09:32] Speaker 02:
It could be a 632 violation if it's a confidential communication.

[00:09:36] Speaker 02:
But this is not our fact pattern.

[00:09:38] Speaker 02:
Our fact pattern is full story is recording the conversation between A and B as it's happening in real time, instantaneous.

[00:09:46] Speaker 02:
It's right down the middle of a classic wiretap violation of 631.

[00:09:51] Speaker 01:
If we conclude that the complaint doesn't have a viable

[00:09:58] Speaker 01:
direct liability claim and that you have not alleged an aiding and abetting clause four claim.

[00:10:05] Speaker 01:
What do we do?

[00:10:07] Speaker 01:
Is there any way to find that the district court made a mistake because

[00:10:10] Speaker 02:
I think you could still vacate the decision because our case is not Garcia.

[00:10:14] Speaker 02:
I mean, the facts are so different and our allegations are so much better that I think it's still legal error for the district court to have dismissed our claim the way it did.

[00:10:22] Speaker 02:
So I would say you could vacate and instruct the district court to reconsider as it is or give us one more chance to amend.

[00:10:30] Speaker 02:
I mean, I think all of the allegations that we need for the SEPA claim have been made.

[00:10:34] Speaker 02:
It's very clear, full story is getting the people's, the website visitors' mouse movements.

[00:10:40] Speaker 01:
I think you've got facts.

[00:10:41] Speaker 01:
I think that perhaps you have facts that put that story together, but as you've alleged it, you've alleged a direct liability claim, not an aiding and abetting theory, as far as I can tell.

[00:10:52] Speaker 01:
And so I'm trying to figure out what to do with that, because it seems like if all that's there is a direct liability claim,

[00:10:58] Speaker 01:
It's hard to find that the district court made a mistake.

[00:11:01] Speaker 02:
I mean, I have to respectfully disagree just on the basis that the way we describe the complaint is very clear that Papa John's employed full story deliberately to install this technology on Papa John's website.

[00:11:14] Speaker 02:
If that doesn't satisfy the aiding and abetting and employing someone to learn the contents of the communication, I'm honestly not sure what allegation would.

[00:11:23] Speaker 02:
It's very clear that they did this on purpose.

[00:11:26] Speaker 02:
They knew they were using full story at the time.

[00:11:28] Speaker 02:
It doesn't just end up on the website accidentally.

[00:11:31] Speaker 02:
They have to install it.

[00:11:32] Speaker 01:
If you were given leave to amend to address this point, would you add anything different, or do you think that you've said what you need to say?

[00:11:38] Speaker 02:
I mean, we could certainly, I guess, clarify as much as possible that Papa John's intentionally hired Full Story to use this technology

[00:11:48] Speaker 02:
so that Full Story could in real time get this information and then give Papa John's back more information than Papa John's would otherwise get.

[00:11:57] Speaker 02:
But I really do think those allegations are already in these complaints.

[00:12:03] Speaker 02:
I see that I have about three minutes left, so I can reserve the rest.

[00:12:07] Speaker 02:
Of course.

[00:12:08] Speaker 00:
Thank you.

[00:12:09] Speaker 00:
We'll hear from the other side.

[00:12:25] Speaker 04:
Good morning, your honors.

[00:12:26] Speaker 04:
May it please the court.

[00:12:27] Speaker 04:
I'd like to spend most of my time talking about the cross-appeal and the personal jurisdiction issue, but before I go to that, I'd like to make a couple points about the party exception and respond to some of the questions you answered.

[00:12:39] Speaker 04:
I think Judge Forrest, I think you had it exactly right, is the issue here with the complaint on the SEPA claim is

[00:12:44] Speaker 04:
What is alleged in the complaint was just direct liability.

[00:12:49] Speaker 04:
Judge Bybee, I think you pointed to a number of the most relevant paragraphs, but in paragraph 72, I think the last line of that is as telling as any of them.

[00:12:59] Speaker 04:
Papa John's directly participated in the interception, reading, and or learning of the contents of the communication.

[00:13:07] Speaker 04:
When we filed our motion to dismiss and said this claim should be dismissed because it pleads only direct liability in the opposition, there was no argument that no, we've actually also applied aiding and abetting.

[00:13:17] Speaker 04:
What the opposition did is it quoted and cited only the first three elements of 631, only the direct liability claim the district court correctly understood.

[00:13:28] Speaker 04:
That the pleading here was just direct liability the next two cases that we're gonna hear this morning has the typical fact pattern here and the typical Allegations and they're pled the way the next two cases are pled because of the party exemption What parties what plaintiffs have to allege to try to get around?

[00:13:46] Speaker 04:
the party exemption is that the third party who's collecting information directly violates SIPA and then the website operator is alleged to be guilty or to violate the statute by aiding and abetting that.

[00:14:01] Speaker 01:
That all makes sense to me.

[00:14:02] Speaker 01:
The thing that's troubling is what do you do when it seems like there might be facts to state an aiding and abetting theory but that's not actually the theory that's being described?

[00:14:16] Speaker 01:
And what do we do with the fact that it seems like the district court misapplied Garcia?

[00:14:20] Speaker 01:
I mean, I think there are differences between this case and Garcia.

[00:14:24] Speaker 04:
So a couple things.

[00:14:26] Speaker 04:
First of all, I think here there are not facts to allege the aiding and abetting.

[00:14:32] Speaker 04:
And I think it was pled this way.

[00:14:34] Speaker 01:
Well, the story about why do you talk about full story and its role here and what it's even doing?

[00:14:40] Speaker 01:
It seems like that aspect of the allegations potentially triggers an aiding theory.

[00:14:46] Speaker 04:
But you would also need extra and additional factual allegations about the way that Papa John's aided and abetted full story.

[00:14:56] Speaker 04:
And that's additional factual allegations that are absent here that the alleged we say are insufficient in the other cases.

[00:15:05] Speaker 04:
I think the point is, in the other cases, to get around the party exception, you use aiding and abetting.

[00:15:10] Speaker 04:
But what comes with that is there needs to be additional allegations to establish aiding and abetting, allowing this to kind of circumvent that and go directly to a party to the conversation runs right into the party exception, which this court in InRe Facebook recognized that for over 50 years, the California courts have set a party to the conversation.

[00:15:32] Speaker 04:
Can't be held liable under SIPA because if you are in a conversation with somebody you were authorized them to learn the contents You know I think this was the third complaint They already had two chances to amend they didn't ask for leave to amend again I think this there's lots of these cases right and then that's I think

[00:15:53] Speaker 04:
in part, why the district court may have relied on Garcia.

[00:15:56] Speaker 04:
It has had a number of these cases.

[00:15:58] Speaker 04:
And what's clear from Garcia, what's clear from this case and the other cases, is that the analysis of trying to hold a website operator directly liable under the first three provisions of SIPA are just barred by the party exception.

[00:16:12] Speaker 04:
The more complicated fact pattern and allegations is the aiding and abetting claim.

[00:16:17] Speaker 04:
And in Garcia, there was both.

[00:16:19] Speaker 04:
The court's analysis in Garcia's for the direct liability claims

[00:16:23] Speaker 04:
party exception applied, dismissed without leave to amend.

[00:16:27] Speaker 04:
On the aiding and abetting claim on Garcia, the court did give the plaintiff their leave to amend because it recognized there may be a way to plead facts to establish a claim under aiding and abetting.

[00:16:37] Speaker 01:
That wasn't an error for the district court to not do that here.

[00:16:41] Speaker 04:
Because here there has never been a suggestion that they pleaded an aiding and abetting theory.

[00:16:46] Speaker 04:
I read the paragraph of the complaint that just says that Papa John's directly participated

[00:16:51] Speaker 04:
In the interception when we move to dismiss on the ground that the only thing pled in this case is a direct violation of the statute.

[00:16:59] Speaker 04:
They accepted that framing they didn't come back and say no we also have an aiding abetting claim they said yes this is a direct liability claim under 631 under the party exception that can't proceed.

[00:17:11] Speaker 00:
Well, they're now pointing to, I think paragraph 44, one of the 40s in their argument.

[00:17:19] Speaker 00:
What do we make of that?

[00:17:20] Speaker 00:
That says that Full Story was taking every click tap URL, this and every other interaction, et cetera.

[00:17:28] Speaker 04:
There certainly are factual allegations in this complaint, similar to the factual allegations in the other complaint that Full Story collects information.

[00:17:35] Speaker 04:
The critical point, though, is the cause of action and what is the theory of liability.

[00:17:39] Speaker 04:
which they want to proceed.

[00:17:41] Speaker 04:
There are no allegations here in count one in the SEPA claim that full story violated SEPA or that Papa John's aid in an abetted

[00:17:52] Speaker 04:
full story's violation of SIPA.

[00:17:54] Speaker 04:
That's the type of allegations and the cause of action that we have in the other cases.

[00:17:59] Speaker 04:
What is alleged here is a direct violation.

[00:18:01] Speaker 04:
And so there are those factual allegations, but there isn't a theory of liability.

[00:18:05] Speaker 04:
There isn't a cause of action pled to say that full story violated the statute or that Papa John's aided and abetted in that.

[00:18:15] Speaker 04:
And merely the presence of full story, if is not enough to take this case out of the party

[00:18:21] Speaker 04:
I mean, I heard a little bit of it this morning.

[00:18:25] Speaker 04:
There was also discussion in the brief that the party exception itself has no basis in the statutory text.

[00:18:31] Speaker 04:
I think that's incorrect.

[00:18:33] Speaker 04:
What the statutory text says is that to be to a violated SIPA, you have to have learned the contents of the communication in an unauthorized manner.

[00:18:44] Speaker 04:
or without the consent of the parties.

[00:18:46] Speaker 04:
The communications that are challenging here is communications between Papa John's and the user.

[00:18:52] Speaker 04:
What the California courts have recognized for 50 years is that if you're in a conversation with somebody and you give information to them, you've authorized them to hear that and receive that.

[00:19:02] Speaker 04:
And that's the basis of the party exception.

[00:19:04] Speaker 00:
Is that true even if, as opposing counsel says, the user types some things and then he raises them, but they're captured?

[00:19:13] Speaker 04:
It would be so a couple things.

[00:19:15] Speaker 04:
One, there's no allegation that that actually happened here.

[00:19:18] Speaker 04:
But with respect to information provided to Papa John's, yes, I would say that was correct.

[00:19:25] Speaker 04:
Now, in the other cases, what we'll hear is that Full Story violated SIPA by collecting that information.

[00:19:34] Speaker 04:
And I think that's a different analysis, and we'll talk about why.

[00:19:37] Speaker 04:
In the Bloomingdale's case, why that's not enough, namely because, as the allegations recognize, it's the Bloomingdale's masks information typed in the text field.

[00:19:47] Speaker 04:
But for purposes of the party exception, the fact that the communication they're challenging here is the communication between the website and the user, that brings it within the party exception.

[00:20:00] Speaker 04:
If I could turn to Briskin and personal jurisdiction, I think what separates the allegations in this case from Briskin and makes this indistinguishable from the Papa John's case that the Third Circuit had in Hassan is the absence of any allegation that Papa John's knew where the user was when the user first visited the website.

[00:20:27] Speaker 04:
In Briskin, it was clear that the en banc court treated that as a critical allegation.

[00:20:33] Speaker 04:
If you look at the summary of the holding at the end of the introduction of the opinion, it's the first thing that the en banc court highlighted is that Shopify had conceded that it knew that Briskin was in California when it implanted a cookie on his device.

[00:20:49] Speaker 04:
Throughout the court's analysis of the Calder test it repeatedly Returned to that fact and it's a critical fact because on for purpose for personal jurisdiction for purposeful direction The key link needs to between be between the defendant and the forum what?

[00:21:08] Speaker 03:
Just remind me were we getting a pizza delivered here picking one up That is the allegation that we're picking it up, and we're picking it up in, California and

[00:21:17] Speaker 03:
Correct.

[00:21:18] Speaker 03:
This is not like this is a huge surprise to Papa John's that somebody was in California.

[00:21:23] Speaker 04:
No, but it's not enough.

[00:21:25] Speaker 04:
So there's two aspects to that.

[00:21:26] Speaker 04:
I mean, on the issue of the picking up the pizza at the brick and mortar store, there we recognize that operating a store in the forum is purposeful availment, but it's not sufficiently related to the claim.

[00:21:40] Speaker 04:
And this is sort of the same analysis that the Third Circuit... Wait, this is...

[00:21:48] Speaker 03:
Thomas is ordering a pizza.

[00:21:50] Speaker 03:
You're collecting the information.

[00:21:51] Speaker 03:
She's picking up the pizza at the brick and mortar store.

[00:21:55] Speaker 03:
And your allegation is that because they're picking up the information sort of outside of the brick and mortar store, there's no jurisdiction in California?

[00:22:02] Speaker 04:
No, what the claim here is that the injury is a privacy-based injury that occurs immediately when you go on the website.

[00:22:10] Speaker 04:
When you click and scroll, you don't have to purchase anything.

[00:22:13] Speaker 04:
And in fact, by the time she decides to purchase a pizza, enters her information and clicks purchase, she has to check a box and says, I consent to the collection of information.

[00:22:24] Speaker 04:
So there is no claim at the time that she purchases the pizza.

[00:22:27] Speaker 04:
The claim arises

[00:22:29] Speaker 04:
from the clicking and scrolling and doesn't depend on whether or not a pizza is purchased.

[00:22:34] Speaker 04:
And that's what led the Third Circuit in Hassan on the identical facts to say that the claim here is not sufficiently related to the purchase of a pizza.

[00:22:48] Speaker 04:
And the analysis that Judge Harden went through for the Third Circuit I think is identical in the way it read

[00:22:54] Speaker 04:
Ford to the way this court interpreted Ford in the Yamashita case.

[00:22:59] Speaker 04:
There there was an allegation that the defendant sold one type of battery in the forum that the plaintiff was alleged to have been harmed by a different type of battery and what

[00:23:10] Speaker 04:
this court said is the defendant may have facilitated a market in the forum for one battery, but that wasn't sufficiently related to the injury because it was a different type of battery that caused the injury.

[00:23:25] Speaker 04:
The Third Circuit went through the same analysis and said you may, Papa John's may be developing a market for pizza in Pennsylvania, but you're not alleged that you're injured by pizza.

[00:23:36] Speaker 04:
You're alleged that you're injured by the website and there's no allegations that Papa John's had done anything to develop a market for its website.

[00:23:45] Speaker 04:
You know, I think a lot of the, you know, both of those cases then look to Ford.

[00:23:49] Speaker 04:
I think it's important though to understand Ford

[00:23:52] Speaker 04:
You know, both for what it held and the way it explained its holding, but also sort of in the context of the Supreme Court's prior decision in Bristol-Myers Squibb, which was cited throughout Ford.

[00:24:04] Speaker 04:
And Bristol-Myers Squibb, I think, was important because in Bristol-Myers Squibb, the Supreme Court recognized that Bristol-Myers Squibb had five research facilities, 400 employees, did $100 million a year in revenue in California, but all of that in forum

[00:24:19] Speaker 04:
conduct wasn't sufficient to establish specific jurisdiction.

[00:24:23] Speaker 04:
The court reiterated that you have to focus on the particular claim brought by the plaintiff or else you're going to blur the distinction between general jurisdiction and specific jurisdiction.

[00:24:34] Speaker 04:
In Ford, the Supreme Court could have said, Ford is the quintessential American automaker.

[00:24:41] Speaker 04:
It advertises everywhere.

[00:24:42] Speaker 04:
It sells its products everywhere.

[00:24:44] Speaker 04:
It's subjected to personal jurisdiction everywhere.

[00:24:47] Speaker 04:
It's not what it said what the court looked at and said for these two particular models We have evidence and allegations that ford has developed a market Through billboards service centers in these two particular states in minnesota in montana Ford takes steps to market crown victoria's nether cards and for that reason we think these claims are sufficiently related to

[00:25:11] Speaker 04:
to the injuries because the very products that Ford marketed in the forum were the one that caused harm.

[00:25:18] Speaker 04:
And that is the distinction that the Third Circuit drew in Hassan.

[00:25:23] Speaker 01:
Is there any other purpose to go to the Papa John's website other than to order a pizza?

[00:25:28] Speaker 01:
Why else do people go to the website?

[00:25:32] Speaker 04:
Certainly people go to the website and decide not to order a pizza.

[00:25:36] Speaker 04:
Where I live in Maryland, if I go to the website, it says if there's not a Papa John's location near enough

[00:25:41] Speaker 04:
to you to deliver, so there can be a lot of locations, but certainly people would go to the website because they're interested in pizza, but the point is it may not end up in a transaction, and it doesn't need to end in a transaction in order to give rise to a cause of action.

[00:25:58] Speaker 01:
The other part of Yeshina... But our standard in our case is that if you have a website with a national viewership,

[00:26:05] Speaker 01:
jurisdiction is satisfied if the defendant appeals to profits and profits from an audience in a particular state.

[00:26:12] Speaker 01:
So the idea of you're trying to, as you use the word market, you're trying to market, you're trying to specifically capture viewers, capture an audience in the state, as opposed to just throwing it out there for the world writ large with no particular idea.

[00:26:27] Speaker 01:
And if you had a website that was just informational, I'm just going there to learn something or whatever,

[00:26:36] Speaker 01:
Maybe that would work.

[00:26:37] Speaker 01:
Your argument would work.

[00:26:38] Speaker 01:
But here, the primary, if not only goal, is to either figure out where a brick and mortar store is, or do an online order, and then have some sort of connection to a brick and mortar store in the forum.

[00:26:50] Speaker 01:
It's hard to see how the website is not trying to develop an audience in the forum.

[00:26:55] Speaker 04:
It's not trying to develop an audience for the website.

[00:26:59] Speaker 04:
And this was, I think, the distinction the Third Circuit drew in Hassan, and I think that this court drew in Yamashita.

[00:27:04] Speaker 04:
It's like, are you developing a market for the product that caused the injury?

[00:27:10] Speaker 04:
So no question that Papa John's, through advertising, through many steps, is trying to develop a market for its pizza.

[00:27:17] Speaker 04:
and to sell pizza.

[00:27:19] Speaker 04:
The question is what steps has it taken to try to develop a market or to promote its website in the forum.

[00:27:26] Speaker 04:
That's the distinction that the Third Circuit drew in Hassan and I think it's the reasoning is identical in my view to what the distinction this court drew in Yamashita between the marketing of one type of battery in the forum

[00:27:40] Speaker 03:
But if you were selling Delaware pizza not available in some jurisdictions, you might have an argument.

[00:27:48] Speaker 03:
But you're selling pizza.

[00:27:51] Speaker 03:
That's all Papa John's does.

[00:27:53] Speaker 03:
We're going to the website.

[00:27:55] Speaker 03:
She's going to the website to buy pizza in California.

[00:27:58] Speaker 03:
It's just very, very difficult for me to see how you don't have jurisdiction in California.

[00:28:03] Speaker 04:
Yeah, and I guess the point is that their claim doesn't depend on any way in any way.

[00:28:07] Speaker 03:
I understand that you're saying that the claim is complete before she completes the transaction.

[00:28:11] Speaker 03:
I understand that, but she's not there on frolic and detour to see whether SIPA is working.

[00:28:20] Speaker 03:
She's there to order a pizza.

[00:28:22] Speaker 04:
Well, but even people who don't order a pizza and aren't intending to order a pizza have the same claim?

[00:28:28] Speaker 03:
That's right.

[00:28:29] Speaker 03:
They may get to some point where they go, whoa, this pizza's more expensive than I thought.

[00:28:35] Speaker 03:
Or I can't get it as quickly as I need to.

[00:28:37] Speaker 03:
Or it turns out this is a Delaware pizza not available in some jurisdictions.

[00:28:41] Speaker 04:
Well, no, it just may not have a location near enough to you.

[00:28:44] Speaker 04:
Your time's up.

[00:28:45] Speaker 00:
Is there another question?

[00:28:48] Speaker 00:
Apparently not.

[00:28:48] Speaker 00:
Thank you.

[00:28:54] Speaker 02:
So I picked up that the court, you know, is very interested in whether we allege the aiding and abetting aspect of the CIPA claim.

[00:29:03] Speaker 02:
So I want to direct the court, this is our First Amendment amended complaint, ER 52, it's the first paragraph, Papa John's procures third-party vendors such as Full Story to embed snippets of the code, et cetera, et cetera.

[00:29:18] Speaker 02:
So I mean, right out of the gate, we're saying they employ them.

[00:29:21] Speaker 02:
That's the triggering language under the statute, employed.

[00:29:24] Speaker 02:
And my friend has tried to construct a waiver argument saying we didn't, you know, develop this theory.

[00:29:30] Speaker 01:
Can you address that point?

[00:29:31] Speaker 01:
Can you point anywhere into the record where you told the district court you were advancing an aiding theory?

[00:29:36] Speaker 02:
SCR 30, second paragraph, she didn't, the plaintiff didn't consent to a third party session reply provider receiving simultaneous dissemination of the communications.

[00:29:48] Speaker 02:
Yet that is exactly what happened.

[00:29:49] Speaker 02:
PJ, Papa John's, allowed a third party to listen in on the conversation.

[00:29:54] Speaker 01:
What's the document you're reading from?

[00:29:56] Speaker 01:
What is the document you're reading from?

[00:29:57] Speaker 02:
This is our memorandum in opposition to the motion to dismiss the First Amendment.

[00:30:01] Speaker 02:
I didn't hear the words aiding and abetting.

[00:30:03] Speaker 02:
Did you use the words aiding and abetting?

[00:30:04] Speaker 02:
We didn't use the precise words of the statute in that paragraph.

[00:30:08] Speaker 02:
It might have been useful, because that's the words used in the statute.

[00:30:12] Speaker 02:
Well, employed is also used in the statute.

[00:30:15] Speaker 02:
And I think by allowing, procuring, the factual allegation says procured, which is, I think, synonymous with employed.

[00:30:24] Speaker 02:
And, you know, the point of a complaint at Rule 12 is to provide the facts to support a claim.

[00:30:30] Speaker 02:
I don't think you lose just because you don't use every single exact precise word.

[00:30:35] Speaker 02:
from a statute, as long as you have the facts that show there is a plausible violation of the statute.

[00:30:41] Speaker 02:
And reading this complaint, I mean, the only fair inference anyone could ever draw from it is Papa John's employed full story to embed this code on their website so that they could obtain real-time listening to the website visitors' communications.

[00:30:59] Speaker 02:
The facts in the complaint definitely lay out the aiding, abetting employment theory pretty clearly.

[00:31:05] Speaker 02:
And that's the first amendment complaint.

[00:31:06] Speaker 02:
And we explained it in our papers to the district court that this is what happened.

[00:31:12] Speaker 02:
We're not purely making a direct violation, allegation against Papa John's.

[00:31:18] Speaker 03:
But if I could just make one- Council, this would also be a whole lot easier if in count one you had someplace referred to full story.

[00:31:25] Speaker 03:
It's true.

[00:31:25] Speaker 03:
You didn't use aiding and abetting.

[00:31:26] Speaker 03:
You just talked about Papa John's.

[00:31:28] Speaker 03:
It sounds like direct liability.

[00:31:30] Speaker 02:
In the count list, but we do begin that count by incorporating all preceding factual allegations by reference.

[00:31:36] Speaker 03:
That doesn't move me very much.

[00:31:38] Speaker 02:
Yeah, I think under what is a Rule 8, though, I mean,

[00:31:42] Speaker 02:
It's kind of slicing the onion thin if you're like, well, it's in that part of your complaint, but not that part of complaint.

[00:31:48] Speaker 02:
I mean, we've supplied the factual allegations.

[00:31:50] Speaker 02:
The theory that we're describing is pretty clear here.

[00:31:54] Speaker 02:
And just one more point, there is no first party exception to a 631 claim.

[00:32:00] Speaker 02:
So once there's a third party eavesdropper, Papa John's is liable.

[00:32:04] Speaker 02:
It doesn't matter that they consented, because they're not allowed to invite any other listeners in without all party consent.

[00:32:11] Speaker 02:
Thank you.

[00:32:12] Speaker 00:
We thank both sides for their argument.

[00:32:13] Speaker 00:
The case of Daisha Thomas versus Papa John's is submitted and we'll next hear argument in Nora Gutierrez versus Converse.