[00:00:01] Speaker ?: Case number 18-7162, Michael Mullough, you have now the first court hearing. [00:00:08] Speaker ?: Who was martyred for painting the fountain? [00:00:11] Speaker ?: Mr. Cassis for the fountain, Mr. Westler for the apple leaf. [00:00:23] Speaker 00: Thank you, Your Honor. [00:00:24] Speaker 00: May it please the Court. [00:00:26] Speaker 00: This is a diversity case involving competitive class action arising out of Whole Foods alleged actions occurring in the District of Columbia and also in up to 27 other states. [00:00:35] Speaker 00: However, Whole Foods is subject only to specific jurisdiction in the District of Columbia. [00:00:40] Speaker 00: As a result, it can only be held into court here for claims related to its actions in the district. [00:00:45] Speaker 00: Whole Foods asked this court to engage in a de novo review of the district court's memorandum of order relating to Whole Foods' motion to dismiss, reverse it, and order the district court to dismiss the claims against Whole Foods arising out of a less injury suffered outside of the District of Columbia. [00:01:02] Speaker 00: For our argument here today, I will highlight three of our arguments that are contained in our brief. [00:01:07] Speaker 03: May I suggest, counsel, that you not read your argument? [00:01:12] Speaker 03: Our rules discourage that. [00:01:14] Speaker 00: Yes, sir. [00:01:15] Speaker 00: So first, I'll address the fact that the decision of the Supreme Court in Bristol-Myers compels the application of specific jurisdiction in the 14th Amendment due process clause to the claims that are being alleged against Whole Foods, against class action. [00:01:30] Speaker 00: Second, here on, I'll address the fact that Rule 23 is not sufficient to protect the due process rights [00:01:36] Speaker 00: of Whole Foods with regard to the claims being alleged against it for claims arising outside of the District of Columbia. [00:01:43] Speaker 03: Didn't one Supreme Court case actually say Rule 23 was designed to protect the interests of the plaintiffs, not defendants? [00:01:55] Speaker 00: That's correct, Your Honor. [00:01:56] Speaker 00: That's Phillips Petroleum v. Schutz, as cited in our brief. [00:02:01] Speaker 00: And then the third point that I'd like to highlight here today is the fact that the class action plaintiffs here that have the claims arising outside of the District of Columbia will not be deprived of their day in court. [00:02:13] Speaker 00: There are other forms in which they can bring those claims, even as a class action. [00:02:17] Speaker 04: Could I ask you to focus on what is an antecedent question, the one that the plaintiffs raise at the end of their briefs? [00:02:26] Speaker 04: which is that punitive class members are not even parties over which the court needs jurisdiction. [00:02:34] Speaker 04: You don't face a jurisdictional issue until it certifies the class. [00:02:38] Speaker 04: Could you start on that? [00:02:40] Speaker 00: Of course, Your Honor. [00:02:43] Speaker 00: While we can get involved in the party-non-party debate, and I do believe there are cases that highlight [00:02:50] Speaker 00: when putative class members are considered to be parties, for example, for statute of limitations. [00:02:55] Speaker 03: I think what counsel was, I think what Judge Taylor was asking was, is this premature? [00:03:00] Speaker 00: Yeah. [00:03:01] Speaker 00: I apologize. [00:03:02] Speaker 00: It's not, because the claims here are clearly alleged in the second amendment. [00:03:06] Speaker 04: No, no, that's not my question. [00:03:08] Speaker 04: The Supreme Court has said that putative class members are not parties. [00:03:14] Speaker 04: They're not parties. [00:03:16] Speaker 04: They're not parties for claim preclusion purposes, they're not parties for [00:03:20] Speaker 04: amount of controversy, they're not bound by settlements, they're not parties. [00:03:25] Speaker 04: And just help me logically, how can you move to dismiss a non-party? [00:03:33] Speaker 04: How do you talk about a court's jurisdiction over someone who's not a party? [00:03:38] Speaker 04: That's what I don't understand. [00:03:39] Speaker 00: Because, Your Honor, what we're focusing on here is the claims that are being alleged by the named parties. [00:03:45] Speaker 04: But I'm asking you a different question. [00:03:47] Speaker 04: It doesn't make any difference what claims the named parties are raising. [00:03:53] Speaker 04: I'm asking you about whether we can even get to your question about jurisdiction if these people are not parties. [00:04:02] Speaker 04: That's my only question. [00:04:07] Speaker 00: The putative class members here are being represented right now by the named parties. [00:04:12] Speaker 00: These named parties are alleging claims for actions that occurred outside of the District of Columbia. [00:04:17] Speaker 00: So what we're saying is that you have to address the claims to see whether their claims are subject to the specific, or subject, Whole Foods, to the specific jurisdiction of the District Court. [00:04:27] Speaker 00: If you dismiss those claims, yes, it will have an impact on the unnamed putative class members, but you still have to address, at this stage, the jurisdictional stage and the pleadings, [00:04:36] Speaker 00: as to whether those claims should exist. [00:04:39] Speaker 04: I hear your answer, but I don't, maybe I'm missing something, but it doesn't answer my question, which is that the proper time to raise this is when, is in the class certification to determine whether they are parties. [00:04:56] Speaker 04: I mean, the court might decide in this case, the district court might well decide that under rule 23, this is not an appropriate case for class certification, in which case you'll never have to deal with this issue. [00:05:08] Speaker 04: I understand, Your Honor, and so... So what is the answer to my question? [00:05:11] Speaker 04: So the rule... You agree with me, right, that putative class, putative members are not parties, right? [00:05:20] Speaker 04: I think for purposes of this question on jurisdiction, they should be bound by the rulings of the court as to whether the court has... So you think putative class members are parties for jurisdictional purposes, but not for claim preclusion, amount of controversy, right? [00:05:35] Speaker 04: None of that? [00:05:36] Speaker 04: What's the distinction? [00:05:40] Speaker 00: Because based on the face of the complaint, you can tell whether those peer-to-the-class members' claims should ever be adjudicated in this particular district court case. [00:05:49] Speaker 03: Counsel, may I intervene for just a moment? [00:05:53] Speaker 03: If I understand Judge Taylor, he's raising the point whether or not at this stage of the proceeding is the issue in effect right. [00:06:04] Speaker 03: And I think that was an argument that your opponent made. [00:06:09] Speaker 03: The issue shouldn't arise until an order of class certification. [00:06:16] Speaker 03: And your response, as I understand in the brief, was that argument was forfeited. [00:06:23] Speaker 03: And I think that is the argument that I think Judge Taylor is referring to. [00:06:29] Speaker 00: Well, Your Honor, that is true. [00:06:30] Speaker 00: They did not bring it up at the previous briefings of this case, and so they raised it for the first time in their response. [00:06:37] Speaker 03: No, they didn't raise it before the district judge. [00:06:39] Speaker 00: They did not, Your Honor. [00:06:40] Speaker 00: That is correct. [00:06:43] Speaker 00: So the court is not being asked to look at that, because as you say, Judge Silliman, that argument has been forfeit. [00:06:50] Speaker 00: But it's also an argument that doesn't ever need to be adjudicated, because what we're talking about here is waiting until class certification in the Rule 23 [00:06:59] Speaker 00: analysis is really more about standing. [00:07:01] Speaker 00: Standing has to come after jurisdiction. [00:07:04] Speaker 00: The court has to decide whether the claims in front of it subject Whole Foods to specific jurisdiction in this particular instance. [00:07:10] Speaker 00: Here, the claims that arose out of Whole Foods action in the District of Columbia do subject it to specific jurisdiction here. [00:07:17] Speaker 00: However, looking at the claims of, for example, an Illinois resident who was employed only in a Whole Foods store in Illinois, [00:07:26] Speaker 00: his or her claim only arises by actions of Whole Foods in Illinois. [00:07:30] Speaker 00: So to have those claims brought here, even in a class action, effectively you're asking the district court potentially order Whole Foods to pay money to an Illinois resident who has never worked and was never injured in the District of Columbia. [00:07:42] Speaker 00: The long-arm statute in the District of Columbia specifically prevents that kind of ruling because the Fourteenth Amendment has applied through Rule 4K1A here, which is how Whole Foods was served, [00:07:54] Speaker 00: prevents that kind of jurisdiction reach to hold and hail Whole Foods into court in the District of Columbia for actions that occurred in Illinois or even in Maryland or Virginia. [00:08:07] Speaker 00: A specific jurisdiction analysis requires only claims that arise out of actions in this form be adjudicated by either the Superior Court or by the District Court here in the District of Columbia. [00:08:18] Speaker 02: Along the lines of Judge Tatel's question, in two cases, Ortiz and Kam, the court has said that the lower court should address certification before it addresses even Article III standing, because that's an issue antecedent to those questions. [00:08:40] Speaker 02: Why isn't that an issue antecedent here as well? [00:08:44] Speaker 00: There was a dichotomy in the Amken case, as far as what Your Honor is referring to, that you should look at Rule 23 before jurisdictional issues when whether there would be class certification is an issue. [00:09:01] Speaker 04: What we're saying is- I'm sorry, when what? [00:09:03] Speaker 04: I just didn't hear you. [00:09:04] Speaker 00: Oh, I'm sorry, Your Honor. [00:09:05] Speaker 00: Whether class certification will be an issue. [00:09:09] Speaker 00: I see. [00:09:10] Speaker 00: I see. [00:09:10] Speaker 03: If you look at it- Didn't the court say whether logically antecedent [00:09:14] Speaker 03: Wasn't that the term? [00:09:16] Speaker 03: If it was logically antecedent? [00:09:18] Speaker 00: I don't remember the exact quote, Your Honor, but yes, that sounds about right. [00:09:21] Speaker 00: But there was also the flip side of that, which is if there's no issue at class certification, you still need to look at jurisdiction first. [00:09:29] Speaker 02: And so I believe the... I don't know where that part comes from. [00:09:32] Speaker 02: In both of these cases, the court says because class certification could be dispositive, [00:09:40] Speaker 02: You should address that first. [00:09:42] Speaker 02: So here, for example, if the district court were to not certify the out-of-state subclasses at all, then we would not have this jurisdictional question at all. [00:09:58] Speaker 02: And in particular, since it's a completely undecided jurisdictional question, which was not the issue in either Amgen or Ortiz, it's like an additional reason not to charge forward on as yet undecided jurisdictional questions when you have an antecedent certification question. [00:10:16] Speaker 02: So if the district court were to decide against you and certify the class, of course, this would be required unless the certification was wrong, in which case, again, the court could decide it was wrong. [00:10:30] Speaker 02: If the court should decide in your favor, then you would not have the jurisdictional issue. [00:10:39] Speaker 02: And the interesting thing about these two cases, these are Article III questions. [00:10:45] Speaker 02: which are not the same as the same level of importance with respect to jurisdiction as personal jurisdiction, because personal jurisdiction is the sort of thing that can be waived. [00:10:55] Speaker 02: Article III can't be. [00:10:57] Speaker 02: Article III is something that has to be decided sui sponte by that court. [00:11:08] Speaker 03: Was this a point that Judge, my colleague, [00:11:15] Speaker 03: present so eloquently raised by the defendants in this case and the plaintiffs in this case? [00:11:24] Speaker 03: Did you hear my question? [00:11:24] Speaker 00: I did not, Your Honor. [00:11:25] Speaker 00: I'm sorry. [00:11:25] Speaker 00: Could you repeat that? [00:11:26] Speaker 03: Was Judge Garland's point raised by the plaintiffs in this case? [00:11:32] Speaker 03: It was not, Your Honor. [00:11:33] Speaker 03: It was not? [00:11:34] Speaker 00: Not at all. [00:11:36] Speaker 02: So the rule in those circumstances with respect to forfeiture is we can still consider it if we regard it as an important enough question [00:11:44] Speaker 02: And there are reasons for considering it, which would include avoiding deciding an undecided constitutional question. [00:11:53] Speaker 02: In fact, what you're asking us to do, forfeiture isn't like waiver. [00:11:57] Speaker 02: Forfeiture doesn't preclude our considering the issue. [00:12:00] Speaker 02: It only makes it much more unlikely that we would consider the issue. [00:12:07] Speaker 04: And let me address the fact that this is- Well, let me just add to what the Chief Judge said, which is the Supreme Court has specifically held [00:12:14] Speaker 04: that even issues that aren't raised in the district court can be addressed by this court if they're antecedent to and dispositive of the issue that is raised and if it's just a legal issue and it's briefed, which is this case. [00:12:34] Speaker 04: U.S. [00:12:34] Speaker 04: National Bank versus independent insurance. [00:12:37] Speaker 04: What a worst decision the Supreme Court ever made. [00:12:40] Speaker 02: He's only saying that because he was involved in the panel decision. [00:12:43] Speaker 03: And as Anna and I have written, it's generally ignored. [00:12:50] Speaker 03: Well, what do you think about that? [00:12:54] Speaker 04: I mean, you know, that's what the Supreme Court says. [00:12:58] Speaker 04: This issue, whatever you think about the issue, it is antecedent to your argument. [00:13:06] Speaker 04: It's potentially dispositive of it, if it's correct. [00:13:10] Speaker 04: It's legal, and it's fully briefed. [00:13:14] Speaker 00: But Your Honors, I need to address that particular point for two reasons. [00:13:17] Speaker 00: One is, waiting until Class Certification Rule 23 doesn't necessarily protect the due process rights that Whole Foods is entitled to under the 14th Amendment. [00:13:32] Speaker 00: We need to address that jurisdictional issue. [00:13:34] Speaker 00: We need to protect those rights, that liberty interest that is cited in other Supreme Court cases. [00:13:39] Speaker 00: That's number one. [00:13:40] Speaker 00: Number two, even though this is uncharted unconstitutional territory, the Bristol Myers case crystallized the due process case law that has been developed over the past several decades. [00:13:52] Speaker 02: But it does expressly leave this issue undecided, right? [00:13:56] Speaker 02: It does, but the next... I understand that it might... I appreciate your argument that it may be [00:14:01] Speaker 02: the next logical step. [00:14:03] Speaker 02: And actually, I found it interesting in your brief. [00:14:05] Speaker 02: You don't – here you say it's compelled by Bristol Myers. [00:14:09] Speaker 02: In your brief, you say it's the next logical step after Bristol Myers. [00:14:15] Speaker 02: But Bristol Myers at least expressly left this undecided. [00:14:19] Speaker 00: It did, but this kind of case, I think, [00:14:23] Speaker 00: requires that that next logical step be taken, because what we're dealing with here is the liberty interest of Whole Foods being hailed into court for actions that may have occurred in other jurisdictions outside of the District of Columbia, which is not allowed under the 14th Amendment due process clause. [00:14:41] Speaker 00: Your Honor, at this time I'd like to reserve any remaining time for my rebuttal. [00:14:45] Speaker 00: Thank you very much. [00:14:56] Speaker 01: Thank you. [00:14:57] Speaker 01: May I please record Matthew Wessler on behalf of Michael Moloch? [00:15:00] Speaker 03: May I ask you a question at the outset? [00:15:02] Speaker 03: Yes, Your Honor. [00:15:04] Speaker 03: Why in Lord's name would you drive 100 miles down the road and file this case in Federal District Court in Delaware, where there would be no question you have general jurisdiction and you could have a class action that would cover everybody in the country? [00:15:23] Speaker 01: Your Honor, you know, I can think of a number of reasons right off the bat, but the first is that a plaintiff has the choice of forum, and in this case, the plaintiff chose to file in the District of Columbia. [00:15:35] Speaker 03: Yeah, well, that's a response that's a non-response. [00:15:40] Speaker 03: The point is that if you filed in Delaware, where the defendant has general jurisdiction, there is no question you can have your class action nationwide, [00:15:53] Speaker 03: Whereas in this situation, you're going to have to wait over time to a Supreme Court decision, because there's no question there's going to be a Supreme Court decision on this one. [00:16:02] Speaker 03: There's a case in the Seventh Circuit. [00:16:05] Speaker 03: There's a case in the Fifth Circuit. [00:16:07] Speaker 03: This one might go up, too. [00:16:10] Speaker 03: The issue will ultimately just be decided in the Supreme Court. [00:16:15] Speaker 03: You could avoid all that just by filing in Delaware. [00:16:20] Speaker 01: I don't dispute the bottom line of Your Honor's question, but I take issue with what I suppose is your suggestion that all plaintiffs should be required to file in one district somewhere in the United States. [00:16:34] Speaker 01: Yes, could the plaintiff have filed a nationwide class action in Delaware? [00:16:38] Speaker 03: Yes. [00:16:39] Speaker 03: Where the defendant has general jurisdiction. [00:16:41] Speaker 01: Could they have also filed in Texas? [00:16:43] Speaker 03: Yes, that's also true, but I was just thinking since [00:16:45] Speaker 01: I understand, but as a constitutional matter there is no problem with a plaintiff filing in federal court in DC for the simple reason that it is the fifth amendment in its minimum context requirement that applies in federal court and not the 14th as a matter of constitutional concern. [00:17:09] Speaker 01: The 14th amendment in this case only applies as a matter of congressional choice. [00:17:14] Speaker 01: Congress made a decision [00:17:15] Speaker 01: through Rule 4K1A to tie only those plaintiffs that are required to serve process under that rule to the 14th Amendment's territorial restrictions. [00:17:26] Speaker 03: Where do you see that? [00:17:29] Speaker 03: Are you talking about Rule 4K1? [00:17:32] Speaker 03: Yes, Your Honor, 4K1. [00:17:34] Speaker 03: That sure says that you should file [00:17:39] Speaker 03: In a federal court, in accordance with the jurisdiction of the court of general jurisdiction in the state? [00:17:49] Speaker 01: Why isn't that? [00:17:50] Speaker 01: Yes, that's right. [00:17:52] Speaker 01: So 4K1, we agree, 4K1A, there are other sections, but 4K1A requires, serves the process consistent with, in this case, the district's long-arm jurisdiction statute. [00:18:05] Speaker 01: But that only applies to the named plaintiff in the case and that plaintiff's claims. [00:18:10] Speaker 01: That has been satisfied in this case. [00:18:13] Speaker 03: Mr. Moloch, the plaintiff in this case... Where does he say it only applies on a named plaintiff? [00:18:17] Speaker 01: Well, it doesn't say that in the rule, Your Honor. [00:18:19] Speaker 01: Sure it doesn't. [00:18:20] Speaker 01: No, it definitely doesn't. [00:18:22] Speaker 01: But Congress has created exceptions to that basic requirement for a whole range of ways in which other parties are involved in a case. [00:18:30] Speaker 01: As an example, the Joinder rules, rules 14 and 19. [00:18:33] Speaker 01: Those rules allow for additional parties to come into the case, and they are not subject to the same 14th Amendment territorial restrictions. [00:18:42] Speaker 01: That's the Hundred Mile Bulge rule. [00:18:44] Speaker 01: The same is true for substitution rules, and the same is true of Rule 23. [00:18:49] Speaker 01: What Congress did with Rule 23 is it carved out an exception to this service of process rule under 4K1A, and it said for absent class members who are joined into a case at a later date, they are not required to serve process or a complaint in the same way that a name plaintiff would. [00:19:07] Speaker 01: Where do you get that out of Rule 23? [00:19:08] Speaker 01: I didn't read that. [00:19:10] Speaker 01: Well, there's nothing in the rule itself, Your Honor. [00:19:12] Speaker 03: There's another one that's not in the rule. [00:19:14] Speaker 01: Sure. [00:19:14] Speaker 01: But all these rules... Can you give me a copy of your amendments to the rule? [00:19:19] Speaker 01: Sure. [00:19:20] Speaker 01: If you're looking for support, Your Honor, for the idea that Congress can authorize participation in a case consistent only with the amendment... I think he's looking for support for the proposition that Congress did authorize it in Rule 23. [00:19:34] Speaker 01: Congress hasn't said, I think the authorization is essentially that these class members don't need to comply with Rule 4K. [00:19:42] Speaker 01: There is no requirement in 4K. [00:19:44] Speaker 03: Rule 23 sort of repealed 4K-1? [00:19:48] Speaker 03: Is that your theory? [00:19:50] Speaker 03: It stands, Your Honor, as an exception to that rule. [00:19:53] Speaker 03: There's nothing in Rule 23 that says that. [00:19:56] Speaker 03: And as a matter of fact, the Supreme Court has said [00:19:59] Speaker 03: that Rule 23 is for the purpose of protecting plaintiffs, not defendants, whereas personal jurisdiction is designed to protect defendants. [00:20:09] Speaker 01: Well, the Supreme Court said that in shots when it was only focused on... No, it said it in another case. [00:20:13] Speaker 01: Well, it said that, it may have said that in several cases, but I think Rule 23 acts as a fairness check for both plaintiffs and defendants. [00:20:21] Speaker 01: As an example, in this case, we've heard Whole Foods in its brief argue that it would be unfair for it to face a multi-state or nationwide class action in DC. [00:20:32] Speaker 01: We haven't heard why that is true. [00:20:34] Speaker 01: But if you were to attempt to identify some concrete reasons why [00:20:38] Speaker 01: Whole Foods, I would think it would be unfair. [00:20:41] Speaker 01: Rule 23 itself stands as a check for almost every single one of them. [00:20:46] Speaker 01: If the concern, for instance, is that they think that there might be some substantive law that would apply to some of the class because you're in DC that you wouldn't get if you were somewhere else, well, Rule 23A has adequacy and typicality requirements. [00:21:03] Speaker 03: So you think Rule 23 is inconsistent with Rule [00:21:06] Speaker 03: 4K1A. [00:21:07] Speaker 01: Absolutely not inconsistent. [00:21:08] Speaker 01: I think they're read in harmony, the same way that all of the other rules that authorize different forms of service or process, or none at all, are read in harmony with Rule 4K1A. [00:21:19] Speaker 01: When Congress wrote that rule, it only applies to the named parties in a case. [00:21:23] Speaker 01: And I think for support, if Your Honor is looking for it, I point you to the Supreme Court's decision in Eisenstein. [00:21:29] Speaker 01: That was a key tam action. [00:21:30] Speaker 01: And in that case, a named plaintiff, an individual. [00:21:33] Speaker 03: I didn't remember that in your brief. [00:21:35] Speaker 03: I'm sorry? [00:21:35] Speaker 03: I didn't remember that. [00:21:36] Speaker 01: I can get you the site, Your Honor, but we did cite it. [00:21:39] Speaker 01: And I'll get you the page number if you'd like. [00:21:42] Speaker 01: But in that case, which was a key time action brought on behalf of the government, [00:21:46] Speaker 01: a named plaintiff filed the complaint and served process. [00:21:50] Speaker 01: And the court said, rule four only applies to the named parties in the case. [00:21:55] Speaker 01: It doesn't matter if you're bringing it as a representative action. [00:21:58] Speaker 01: Those you are seeking to represent are not required under rule four to serve process in the same way. [00:22:04] Speaker 01: And as a result, the absence of that requirement [00:22:07] Speaker 01: takes you out of the 14th Amendment's territorial restrictions and places you firmly into the 5th Amendment's restrictions, which, as we all know from this court's decision in Livnet, extend to the full scope of the country. [00:22:19] Speaker 01: So although the minimum contacts requirement, the standard is the same. [00:22:23] Speaker 03: But Livnet is not a diversity case. [00:22:25] Speaker 01: That's correct, Your Honor, but I don't think there's any authority that I've seen, certainly, to suggest that there's a difference in the way the Fifth Amendment operates between a federal question claim and a diversity jurisdiction claim, because you're in the court that exercises the power of the United States in exactly the same way. [00:22:40] Speaker 03: Well, that seems consistent with 40K1A. [00:22:45] Speaker 01: I'm sorry, I don't agree that it's inconsistent with 4K1A, because 4K1A operates both for diversity jurisdiction cases, claims that are brought under state law, and for federal question claims that don't include a nationwide service of process provision. [00:23:00] Speaker 01: So for the mind run of federal claims out there, a plaintiff is still required [00:23:05] Speaker 01: under 4K1A to comply with the 14th Amendment when it's serving its complaint, for federal question claims and for diversity jurisdiction question claims. [00:23:15] Speaker 02: Does Rule 23 have a provision for service of process? [00:23:19] Speaker 01: No, Your Honor, it does not. [00:23:20] Speaker 02: Well, so then I would understand the argument that another rule or another statute would overtake Rule 4K1 with respect to how you get [00:23:35] Speaker 02: jurisdiction over a plaintiff. [00:23:40] Speaker 02: And I understood you to say Rule 23 does that, but I am at a loss now. [00:23:45] Speaker 02: The answer is it doesn't provide for it to see how Rule 23 substitutes. [00:23:52] Speaker 02: I'm sorry, I didn't... If there is no provision in Rule 23 for service of process, then how does it substitute for or add to 4K1? [00:24:01] Speaker 01: It has been the settled practice, and I don't think you could find a case in the federal system [00:24:07] Speaker 01: that has required absent class members after a case has been certified to serve process under Rule 4. [00:24:13] Speaker 01: And the reason is that this is not like a mass tort action, like the action that was at issue in Bristol Myers, where each individual plaintiff was required to serve their individual complaint and was a named party in the aggregate case. [00:24:26] Speaker 01: For a class action under Rule 23, absent class members don't need to do anything. [00:24:30] Speaker 01: As the court has said in Shady Grove, among other decisions, they can sit back and relax, and they are bound by the judgment, but they don't actually have to do anything in the case. [00:24:41] Speaker 02: The ultimate requirements about sending out notice in one form or another, where do those come from? [00:24:48] Speaker 01: In a class case? [00:24:49] Speaker 01: That's in Rule 23. [00:24:50] Speaker 01: So why wasn't that the answer to my question? [00:24:53] Speaker 01: I think that could be an answer to your question, that there are procedures within Rule 23 itself that serve the effective function of what service and summons does under Rule 4. [00:25:03] Speaker 01: I think I want to take a step back. [00:25:05] Speaker 02: So once they are served by those provisions, they are bound, unless they opt out? [00:25:11] Speaker 01: That's correct, Your Honor. [00:25:13] Speaker 01: I just want to take a step back if I can and I think just emphasize what the upshot of Whole Foods' argument is in this case. [00:25:20] Speaker 01: Under its constitutional logic, which is that the Fourteenth Amendment applies entirely to federal courts in diversity jurisdiction cases, there is no way to draw a line [00:25:32] Speaker 01: that wouldn't also mean that all of the ways that Congress has created exceptions to this basic rule wouldn't also be unconstitutional. [00:25:40] Speaker 01: That would extend not only to the Joinder and substitution rules in the federal rules of civil procedure, but also it would render CAFA unconstitutional. [00:25:49] Speaker 01: It would render nationwide service of process provisions unconstitutional. [00:25:52] Speaker 02: What if their argument were simply restricted to the 4K1 question? [00:25:57] Speaker 02: That is, in cases where 4K1 governs, [00:26:00] Speaker 02: You're restricted to the Fourteenth Amendment. [00:26:02] Speaker 02: That's what Burger King says. [00:26:06] Speaker 02: But if there's another way to get personal jurisdiction, then you're not limited. [00:26:11] Speaker 02: Your Honor, imagine... Why is that a problem, what I just said for you? [00:26:18] Speaker 02: Because you think 4K1, there's a substitute for it. [00:26:21] Speaker 01: If there's another way to obtain process, I'm sorry. [00:26:24] Speaker 02: Is there not another way to obtain process in those other examples that you gave? [00:26:29] Speaker 01: I was just about to answer your question, I suppose, with an example. [00:26:32] Speaker 01: In an MDL case, you have plaintiffs who have satisfied Rule 4K1A's requirement by filing, let's say, one in California and one in Minnesota. [00:26:43] Speaker 01: But under the MDL statute, those cases may be consolidated somewhere entirely different, Virginia. [00:26:49] Speaker 01: And they have not satisfied Virginia's territorial restrictions when they filed their claim in their federal district court in their state. [00:27:00] Speaker 01: And yet, under Whole Foods' theory, that is still an unconstitutional exercise of a district court's power in Virginia if it is exercising that power over a California or a Minnesota case. [00:27:14] Speaker 01: So I think to answer your Honor's question, [00:27:16] Speaker 01: Under Whole Foods' theory, that would be unconstitutional. [00:27:20] Speaker 01: They believe that the 14th Amendment operates entirely throughout the federal system and restricts the exercise of a federal court's power in the exact same way as it does in the state. [00:27:33] Speaker 01: But that ignores what is the fundamental distinction between our federal system and the state's. [00:27:37] Speaker 03: Do you have any case? [00:27:39] Speaker 03: I see all the cases to the proposition that [00:27:44] Speaker 03: notwithstanding the Fifth Amendment, we follow the Fourteenth Amendment in diversity cases? [00:27:51] Speaker 01: No, Your Honor. [00:27:52] Speaker 01: Outside of Rule 4K, I don't think you will find any cases that say that the Fourteenth Amendment operates as the constitutional control. [00:28:00] Speaker 01: It's the Fifth Amendment. [00:28:02] Speaker 01: Now, in Livnat, what this Court said was that the standard is the same for minimum contacts. [00:28:09] Speaker 01: We will apply the same standard that the Court, and I should say the Supreme Court has always [00:28:14] Speaker 01: In all of their personal jurisdiction cases, they've always analyzed the 14th Amendment's restrictions because the cases have come up through state courts. [00:28:23] Speaker 01: And in live not, this court said, look, for the Fifth Amendment, the minimum context test is the same, but the scope is different. [00:28:30] Speaker 01: That was not a diversity case. [00:28:32] Speaker 01: I agree with you, Your Honor, but I don't think doctrinally there is any consistent way to carve out diversity jurisdiction cases from the basic rule that the Fifth Amendment applies. [00:28:41] Speaker 01: I don't think you'll find any authority. [00:28:43] Speaker 01: I certainly haven't found any authority that suggests that there's a difference. [00:28:46] Speaker 03: Counsel, one of the arguments you made is that if we were to follow [00:28:51] Speaker 03: what your opponent's contention is the logic of Bristol Myers and take one step more the logic that would create chaos because class action cases could be brought all over the country but you didn't respond at all to your colleague your adversary's position which is [00:29:19] Speaker 03: Hell no. [00:29:20] Speaker 03: The case can be brought in a location of general jurisdiction, and then there would be one class action. [00:29:30] Speaker 01: Yes, Your Honor. [00:29:30] Speaker 01: That is a possibility, but I do not think... Not a possibility. [00:29:33] Speaker 03: It's obvious, isn't it? [00:29:35] Speaker 01: It may be an obvious possibility, but it is not the exclusive... It is not the exclusive mechanism. [00:29:41] Speaker 03: Yeah, but why in Lord's name do we have to fight through this issue when it was so easy [00:29:48] Speaker 03: for the plaintiff to go to the location where the defendant can be sued under general jurisdiction, not specific jurisdiction. [00:29:58] Speaker 03: That would oust class actions all over the country. [00:30:02] Speaker 01: You'd have one class action? [00:30:03] Speaker 01: Your Honor, one may prefer that as a policy matter, but I do not think it's mandated by the Constitution. [00:30:09] Speaker 03: Well, the only reason I'm referring to it as a policy matter is you as a policy matter argued that [00:30:14] Speaker 03: the alternative would be chaos. [00:30:16] Speaker 03: And I'm pointing out that your argument, the alternative is chaos, is wrong. [00:30:21] Speaker 01: I understand the point, Your Honor. [00:30:23] Speaker 01: I disagree with the conclusion. [00:30:25] Speaker 01: And I think that under both general and specific jurisdiction, plaintiffs have options available to them that does not require or restrict them to sue in one jurisdiction. [00:30:36] Speaker 01: And so specific jurisdictions. [00:30:38] Speaker 03: Oh, there's no question you're right about this. [00:30:40] Speaker 03: This is a class action. [00:30:42] Speaker 03: dealing only with individuals who had granted specific jurisdiction or conveyed specific jurisdiction in the District of Columbia, there would be no problem. [00:30:56] Speaker 01: Yes, yes, Your Honor, that's correct. [00:30:57] Speaker 01: At the same time, up until Bristol Myers, you cannot find a case or a defendant that has made the argument that Whole Foods is making here. [00:31:07] Speaker 01: And I would submit that there's a reason for that, which is that under the Fifth Amendment, it's not required as a matter of the Constitution. [00:31:13] Speaker 01: I mean, just to provide a complete answer, could Congress at some point decide that it wants to restrict the filing of class actions in the way your Honor is suggesting? [00:31:21] Speaker 01: Yes. [00:31:22] Speaker 01: I think it has the power to do that. [00:31:24] Speaker 01: But Rule 23 speaks very clearly, I think, and empowers any court in any civil action in the federal system to certify a class action, and it authorizes unambiguously any plaintiff to maintain one. [00:31:38] Speaker 03: So your view is when a district judge dismissed two of the named plaintiffs, [00:31:44] Speaker 03: He committed error? [00:31:45] Speaker 01: No, Your Honor. [00:31:47] Speaker 01: The name plaintiffs are required to comply with Rule 4K. [00:31:51] Speaker 01: What he did there was follow that basic rule. [00:31:54] Speaker 03: Where did you get the out of Rule 23 that the name plaintiffs have to comply with Rule 4K? [00:32:02] Speaker 01: That's not in Rule 23, Your Honor. [00:32:04] Speaker 03: That's in short, isn't it? [00:32:06] Speaker 01: Yep, that's rule 4K. [00:32:08] Speaker 01: That requirement applies to the name plaintiffs. [00:32:10] Speaker 01: It does not apply to any of the absent class members. [00:32:12] Speaker 03: There's nothing in either rule that states that. [00:32:16] Speaker 03: I'm sorry, states what? [00:32:16] Speaker 03: There's nothing in either rule that states what you just said. [00:32:22] Speaker 01: There's no, we grant that there's nothing in the rules that specifically exempts absent class members from Rule 4, but we think by design, that is what Congress intended with Rule 23, by empowering all federal courts to certify a class and by empowering any plaintiff to maintain one, we think [00:32:39] Speaker 01: That is evidence that Rule 23 operates as an exception. [00:32:43] Speaker 01: And by settled practice, where after certification, class members have never been required to comply with Rule 4K, you will not find a single decision in the federal court system that comes out and says, oh, in fact, once a class has been certified, every class member has to file a complaint in the summons consistent with Rule 4K. [00:33:03] Speaker 01: There's a reason behind that, and it's that Rule 23 operates differently for those absent class members. [00:33:09] Speaker 04: Council, I'm a little uncertain about your strategy. [00:33:13] Speaker 04: I would have thought your first argument, your first sentence would have been, there's no need to decide this hard issue here, because putative class members are not parties. [00:33:24] Speaker 04: You make that, and you didn't even raise that until the end. [00:33:28] Speaker 04: I read your whole brief, and not until page 34 did I discover that you thought there was an issue that would prevent us from even deciding this difficult question. [00:33:36] Speaker 04: Yes, Your Honor. [00:33:37] Speaker 04: Are you not that confident about that? [00:33:39] Speaker 01: No, we think that that argument is available to this Court. [00:33:43] Speaker 04: or dispositive? [00:33:44] Speaker 01: No, available. [00:33:46] Speaker 01: I don't think it's dispositive. [00:33:47] Speaker 01: You don't? [00:33:48] Speaker 01: No. [00:33:48] Speaker 01: And the reason I don't think it's dispositive is because the district court held that absent class members were not a relevant subset or category of parties for the purposes of personal jurisdiction analysis. [00:34:01] Speaker 01: And I think that this court can affirm that holding, even at this stage, by essentially adopting the core merits argument that we've made in this case. [00:34:14] Speaker 01: I think, just to kind of add to that, there's something of an efficiency argument that I think we've got going on here that militates, I think, in favor of the court reaching the core question here. [00:34:26] Speaker 01: In its order certifying the appeal to this court, the district court explained that it was staging discovery in this case, and it was staying the discovery related to all of the potential class beyond just those states of the named plaintiffs that were in the case. [00:34:43] Speaker 01: And so as we stand here today, there is no discovery moving forward in this case for the full scope of the class that will be subject to Rule 23 in class certification. [00:34:55] Speaker 01: If this court were to dodge the question or decide that it was premature for some reason, we might be back up here in a year. [00:35:04] Speaker 01: But the case itself would suffer, and we would not have advanced far enough to get to a point. [00:35:08] Speaker 04: Then why did you even make the argument at the end of your brief? [00:35:11] Speaker 01: Well, I think that there are, let me put it this way, the procedural mechanism that Whole Foods used here was to file a Rule 12 motion to dismiss. [00:35:25] Speaker 01: And so far as we have been able to find, there has been almost no authority that [00:35:32] Speaker 01: District Court has jurisdiction in the way that it could to dismiss out the claims of absent class members. [00:35:39] Speaker 01: I think this gets back to Judge Garland's point earlier. [00:35:41] Speaker 03: But it's happened twice in a way in both Illinois and Texas. [00:35:46] Speaker 01: Well, Your Honor, but this actually goes right to my point. [00:35:50] Speaker 01: In Illinois, in the Seventh Circuit case, the defendant filed a Rule 12 motion to strike the class allegations. [00:35:57] Speaker 01: What's the difference? [00:35:59] Speaker 01: There's a significant difference because a district court doesn't have jurisdiction over the claims of absent class members until class certification. [00:36:06] Speaker 03: It can't... Trying to make a significance between a motion to dismiss and a motion to strike strikes me as [00:36:14] Speaker 03: Manini. [00:36:17] Speaker 01: Manini is Hawaiian for small. [00:36:19] Speaker 01: Be that as it may, Your Honor, I do think that there are potential jurisdictional problems. [00:36:24] Speaker 01: Had the district court in this case, Judge Tatel, come out the other way, it didn't have the power to order the dismissal of absent class members' claims, because those claims are not before it until class certification. [00:36:38] Speaker 01: But it didn't do that. [00:36:39] Speaker 01: That assumes the conclusion. [00:36:43] Speaker 03: That's the whole issue. [00:36:46] Speaker 01: Yes, I agree, which is why I think it's right for this court to decide it now. [00:36:51] Speaker 01: However, if the court were to come out the other way and disagree with the district court and hold that the court must dismiss the claims of absent claim members at this stage, that I think would be premature. [00:37:05] Speaker 01: because there are no claims to be dismissed at this point. [00:37:09] Speaker 01: And so as a procedural matter, had Whole Foods done what the defendant in the Seventh Circuit case had done, I think the motion to strike class allegations would authorize the court, and I think it would be right to rule on that one way or the other. [00:37:24] Speaker 01: Here though, I don't think there would be any way a district court could comply with this court's order to dismiss the claims of parties who are not in fact before it. [00:37:33] Speaker 01: So in that way, there's a kind of procedural or advisory issue. [00:37:37] Speaker 01: But I do not think it comes up if this court is going to affirm and rule precisely on what the district court did in this case. [00:37:46] Speaker 02: The district court said that in fairness to the defendant, it had to dismiss the named out-of-state plaintiffs. [00:37:54] Speaker 02: Yes. [00:37:55] Speaker 02: Why is there a fairness? [00:37:57] Speaker 02: with respect to the named out-of-state plaintiffs, it doesn't also apply to the unnamed. [00:38:02] Speaker 01: That was my point. [00:38:03] Speaker 01: Yes, but again, that is because the named plaintiffs must comply with Rule 4K-1 Service Rules. [00:38:07] Speaker 02: Well, that's not what the court meant by fairness. [00:38:11] Speaker 02: The court was talking about fairness, not just about compliance with 4K. [00:38:17] Speaker 01: I'm not sure I read that much into the term fairness. [00:38:20] Speaker 02: Well, I think what the court is talking about is the minimum context fairness issue with respect to the 14th Amendment. [00:38:27] Speaker 01: Yes. [00:38:28] Speaker 02: It didn't depend on its interpretation of 4K. [00:38:31] Speaker 02: It depended on the district court's interpretation of hailing somebody into court on claims that were outside. [00:38:41] Speaker 01: Agree. [00:38:41] Speaker 01: Agree. [00:38:42] Speaker 01: But the only reason that the court could make that finding and hold [00:38:47] Speaker 01: that it failed to comply with the minimum context requirement of the 14th Amendment. [00:38:51] Speaker 01: is because in federal court, the 14th Amendment only applies through operation of Rule 4K. [00:38:56] Speaker 01: And so when I say 4K, that is a stand-in for Congress's choice to incorporate the 14th Amendment for a limited purpose in these cases. [00:39:05] Speaker 01: And the limited purpose is, can the named plaintiff satisfy the minimum context requirement, in this case for the District of Columbia? [00:39:14] Speaker 01: And the district court in this case said some yes, some no. [00:39:18] Speaker 01: So I agree with you, Judge Garland, that when the district court speaks of fairness, it's thinking about minimum contacts. [00:39:25] Speaker 01: But the only reason it gets to that point in the first place in this analysis is by operation of Rule 4K. [00:39:32] Speaker 01: And we do not have that same operation applying to the absent class members claims. [00:39:36] Speaker 02: Just again, I think that's an interesting theoretical argument, but it's not the words the court said. [00:39:43] Speaker 02: The court says while plaintiffs note [00:39:45] Speaker 02: The concerns of forum shopping are not at play at the Fifth Amendment context, the same way as in state courts. [00:39:50] Speaker 02: The personal jurisdiction inquiry is not centered solely on such concerns. [00:39:54] Speaker 02: Instead, a vital purpose is to ensure fairness to the defendant. [00:39:58] Speaker 02: In federal and state courts alike, defendants should face suit only under fair circumstances. [00:40:03] Speaker 02: Here, fairness to defendants counsels against exercising personal jurisdiction over the claims of Bowens and Strickland, which simply have nothing to do with this forum. [00:40:14] Speaker 02: So if you just put in the words unnamed plaintiffs instead of Bowen and Strickland, I understand the argument about 4K. [00:40:25] Speaker 02: Whether that's what the court has in the back of its mind or not, what the court is saying is that it would be unfair to allow these plaintiffs' claims here against the defendant because they have nothing to do with the forum. [00:40:41] Speaker 02: And it's also true of the unnamed plaintiffs. [00:40:44] Speaker 02: Those claims have nothing to do, those state law claims, have nothing to do with the forum. [00:40:50] Speaker 01: Sure. [00:40:51] Speaker 01: And my answer would be Rule 23 provides the check on fairness if and when this case ever gets to a place where what's at issue is the fairness of [00:41:02] Speaker 01: of allowing the class to move forward that includes claims of out-of-state class members. [00:41:11] Speaker 01: There are adequacy, typicality, and predominance requirements built in to Rule 23 that make it difficult to certify a multi-state class action for perhaps the precise reason Your Honor is suggesting. [00:41:24] Speaker 01: But as a technical matter, technical, but I mean constitutional, [00:41:30] Speaker 01: The minimum context analysis that a federal court must undertake in these cases is based on the Fifth Amendment unless Congress requires something else. [00:41:42] Speaker 01: And it is only for the named plaintiffs in the case where Congress has said, do the 14th Amendment minimum context test. [00:41:50] Speaker 01: That's your guidepost for when it's fair and when it's not fair. [00:41:55] Speaker 01: But for everybody else, Rule 23 is the framework and the vehicle. [00:42:00] Speaker 01: And we don't require compliance with Rule 4K. [00:42:04] Speaker 01: And as a result, the 14th Amendment simply just doesn't apply once we've surpassed or proceeded past that initial pleading stage in the case. [00:42:16] Speaker 03: That's a very adventuresome reading of the federal rules. [00:42:21] Speaker 01: Your Honor, I think that's the way that federal class practice has worked in this country from the beginning. [00:42:28] Speaker 01: And no one, not a single court, has questioned the rule that I just explained. [00:42:33] Speaker 01: You're right until Bristol Myers. [00:42:36] Speaker 03: Now three courts have questioned. [00:42:39] Speaker 01: Well, I think there have been a bunch of district courts that have been forced to confront [00:42:46] Speaker 01: The argument that we are confronting here, that's for sure true. [00:42:50] Speaker 01: But before Bristol Myers, I think you would agree with me, you wouldn't be able to find anything anywhere that suggests that this is a problem. [00:42:57] Speaker 03: Forgive me. [00:42:57] Speaker 03: If my aunt had wheels, she'd be a trolley car. [00:42:59] Speaker 03: I mean, to say before Bristol Myers, we wouldn't have a problem. [00:43:04] Speaker 03: It doesn't make a lot of sense. [00:43:05] Speaker 03: We have the question because of Bristol Myers. [00:43:08] Speaker 01: Well, you do, but let's step back and focus on what Bristol Myers was about. [00:43:14] Speaker 03: Let me put to you the question. [00:43:15] Speaker 03: Would Bristol Myers be a nullity under your theory? [00:43:19] Speaker 03: No. [00:43:20] Speaker 03: Since all those plaintiffs in that case could have been put in in a class action? [00:43:25] Speaker 03: No, I don't think... Making the decision a nullity? [00:43:29] Speaker 01: No. [00:43:29] Speaker 01: I mean, that case, first of all, of course, was not a class action, but if what you're... No, I said if you... If what you're asking is... ...wasn't a class action, you'd just reverse the position? [00:43:37] Speaker 01: Yes. [00:43:37] Speaker 01: Yes. [00:43:38] Speaker 01: My answer to you is, if you're asking could they have filed a class action, my answer is they could file it. [00:43:45] Speaker 01: But could they certify it? [00:43:47] Speaker 01: That is the key question. [00:43:49] Speaker 01: And my answer to you would be, I don't know. [00:43:51] Speaker 01: But rule 23 imposes some very serious obstacles to certifying a class that would be a drug injury [00:43:59] Speaker 01: class of everybody who claims they've been injured by a drug, like Plavix, which was an issue in Bristol Myers. [00:44:05] Speaker 01: And it is Rule 23's adequacy, typicality, and predominance requirements. [00:44:09] Speaker 01: I mean, this Court has said this multiple places, that those requirements stand as a almost insuperable obstacle sometimes for certifying a class that includes the claims of out-of-state class members. [00:44:24] Speaker 01: Precisely because, if you have a name plaintiff in California, [00:44:27] Speaker 01: Their claims may not be adequate, they may not be an adequate representative, their claims might not be typical, or there might be individualized issues that make certifying the class improper. [00:44:38] Speaker 01: But all of that is accounted for in Rule 23. [00:44:40] Speaker 02: Which cases describe the Rule 23 protections as protecting the defendant? [00:44:46] Speaker 01: Are you asking about the Supreme Court cases? [00:44:49] Speaker 01: I don't know that the Supreme Court has ever actually looked into that issue in the way where they focused on the defendants. [00:44:54] Speaker 01: Forgive me. [00:44:55] Speaker 01: I have my recollection. [00:44:56] Speaker 03: I can't recall exactly the case. [00:44:58] Speaker 03: But the Supreme Court has specifically said once that Rule 23 provisions are designed to protect plaintiffs. [00:45:05] Speaker 01: It has said that. [00:45:06] Speaker 01: But Your Honor. [00:45:07] Speaker 01: Do you recall that? [00:45:08] Speaker 01: Yes, it has said that. [00:45:10] Speaker 01: But it has never specifically confronted [00:45:13] Speaker 01: this question in the context of a defendant's rights. [00:45:16] Speaker 01: And so I think until that happens, we're left with what we know Rule 23 is designed to do. [00:45:22] Speaker 02: Is there a case in our circuit? [00:45:24] Speaker 02: Or you preface by saying, was I asking about the Supreme Court, which indeed I was, but that suggested maybe you knew another case. [00:45:31] Speaker 01: I would point this court to its decision in Walsh versus Ford Motor. [00:45:35] Speaker 01: It was not cited in any of the briefs, 807, F2D 100, [00:45:41] Speaker 01: where I think and it has been relied on in fact recently by a district court in this circuit to deny class certification in a multi-state proposed multi-state class action and if the court would want a supplemental briefing we'd be happy to provide it but in that case I think we can find the citation that's okay. [00:46:02] Speaker 01: We'll be able to find the citation. [00:46:04] Speaker 01: But in that case, this court did lay out the significant obstacles that Rule 23 creates for certification of multi-state class actions. [00:46:15] Speaker 01: And I think that from our perspective, that has worked in this country from the beginning, continues to work. [00:46:20] Speaker 01: And unless and until the Supreme Court informs everyone that the rules are different, this court ought not to read Bristol Myers as [00:46:31] Speaker 01: somehow mandating a different constitutional analysis here. [00:46:34] Speaker 02: Thank you. [00:46:35] Speaker 02: Is there any time left? [00:46:43] Speaker 02: It'll take two minutes, it's okay. [00:46:45] Speaker 00: Thank you, Your Honor. [00:46:45] Speaker 02: You went way over on the other. [00:46:47] Speaker 00: I appreciate that. [00:46:51] Speaker 00: Your Honor, the 14th Amendment new process clause does not take a backseat to Rule 23. [00:46:56] Speaker 00: What appellees here are arguing is that [00:46:59] Speaker 00: is they agree that an individual in Illinois would not be able to come into the DC Superior Court and file a claim arising from actions that occurred in Illinois. [00:47:09] Speaker 00: But suddenly, because you put together a class action, jurisdiction now exists. [00:47:14] Speaker 00: That is not how the 14th Amendment Due Process Clause works. [00:47:17] Speaker 00: Here, we've got named plaintiffs who are alleging violations of a number of different state laws and then a larger bucket of various others. [00:47:26] Speaker 00: Those claims would include a multitude of states where there were actions that Whole Foods took outside of the District of Columbia. [00:47:33] Speaker 02: What do you say to the Council's argument that if you are correct about this, all MDL proceedings are unconstitutional? [00:47:42] Speaker 00: I disagree with that, and here's why. [00:47:43] Speaker 02: I assumed, but I was wondering why. [00:47:46] Speaker 00: MDL proceedings are specific in that you have transferee courts sending everything to one particular court to coordinate for convenience purposes. [00:47:54] Speaker 02: Well, for whatever purposes, but discovery is ordered out of those courts and there's preliminary motions are decided by those courts over defendants who have no connection to that court's forum. [00:48:11] Speaker 00: But a defendant has the opportunity to return to its home state or to the state where the case was originally filed. [00:48:17] Speaker 00: in order to actually have the case tried. [00:48:19] Speaker 00: And that's the protection of the case. [00:48:21] Speaker 02: Can it overrule the preliminary decisions of the MDL court? [00:48:26] Speaker 02: Can it object to discovery from the MDL court on the theory that it's outside of the forum state? [00:48:33] Speaker 00: I don't believe so, no. [00:48:35] Speaker 02: So aren't all those things unconstitutional? [00:48:37] Speaker 00: I don't think so, because the focus here of the 14th Amendment due process clause is you can only be held into a court where your actions gave rise to the claims. [00:48:46] Speaker 00: that provides for the court in that particular form to to try the case and provide the defendant with [00:48:54] Speaker 00: a ruling by a court that actually has an interest in and cares about the result. [00:48:58] Speaker 00: But when we're talking about the MDL court where everything is combined, the fact that the MDL court coordinates discovery, rules on discovery motions, we need a rule on summary and judgment, doesn't impact the fact that at the end of the day, the defendant can still return back to the original court to have the case tried. [00:49:13] Speaker 02: So it requires the defendant now to show up in at least two courts where they didn't think they would have to show up at all, at least one of them at all. [00:49:22] Speaker 02: requires the defendant to submit to the discovery orders in the court could be 3,000 miles away from its home. [00:49:31] Speaker 00: Convenience is an issue, but I think at the end of the day... Fairness is a question. [00:49:34] Speaker 03: Has anybody argued that that procedure contravenes either the Constitution or Rule 41A-K? [00:49:41] Speaker 03: Not that I'm aware of, Your Honor. [00:49:44] Speaker 00: No, I'm not. [00:49:47] Speaker 02: No, so I'm not asking for that reason. [00:49:49] Speaker 02: The question they raised [00:49:51] Speaker 02: what is appropriate that we have to consider what the implications of a decision would be. [00:49:55] Speaker 02: And so I'm asking whether the implications of this decision would be to render that unconstitutional. [00:50:01] Speaker 02: Let me ask you another question that was raised in opposing counsel's brief. [00:50:05] Speaker 02: What about a foreign corporation not at home in any [00:50:08] Speaker 02: Does it have to be sued separately in every state? [00:50:12] Speaker 02: So here's the hypothetical. [00:50:13] Speaker 02: I mean, it only is a hypothetical. [00:50:16] Speaker 02: Imagine there's a car company in Europe that produces a particular kind of engine and falsifies the emissions and other standards of that engine. [00:50:27] Speaker 02: And people in every state in the United States buy those engines and then discover that they're fraudulent, false, whatever. [00:50:35] Speaker 02: You have to sue separately in every state. [00:50:38] Speaker 02: Does there have to be a separate class action in every state, or can there be a nationwide class action? [00:50:45] Speaker 02: The corporation is not at home in any United States state. [00:50:56] Speaker 00: I think the analysis, Your Honor, would have to be, would it be substantial fairness and justice to allow [00:51:05] Speaker 00: a claim to proceed in just one state against that foreign corporation, depending upon that foreign corporation's contacts with the state and with the country as a whole. [00:51:14] Speaker 00: I think that's different. [00:51:14] Speaker 02: Well, that's the question. [00:51:15] Speaker 02: Is there a country as a whole question here? [00:51:18] Speaker 02: So it's a diversity case for fraudulent misrepresentation of [00:51:24] Speaker 02: the emission standards provided by that engine or the lifetime of that engine or of whether the airbag is safe or any of those things. [00:51:33] Speaker 02: But it's purely – there's no federal statute involved. [00:51:36] Speaker 02: It's a diversity case brought under the common law or statutory common law, all of which, plaintiffs allege, are similar. [00:51:44] Speaker 02: in every state. [00:51:46] Speaker 02: Can there be a nationwide class action, or is the consequence of our decision to compel at least 50 separate state class actions? [00:51:59] Speaker 00: In your hypothetical, Your Honor, I don't think that 50 state actions would be required. [00:52:03] Speaker 00: Why? [00:52:04] Speaker 00: It would have to be depending on the fact pattern, depending upon the company's [00:52:09] Speaker 00: contacts with the various states. [00:52:11] Speaker 02: There's no specific jurisdiction in any state. [00:52:18] Speaker 02: I mean, there is specific jurisdiction in every state, but only with respect to the people who are injured in that state, not with respect to another state. [00:52:25] Speaker 02: And there's no general jurisdiction anywhere. [00:52:28] Speaker 03: In other words, is there any way to construct the home jurisdiction for a foreign corporation? [00:52:35] Speaker 03: We've never – I don't think that's ever been faced. [00:52:39] Speaker 02: Right. [00:52:39] Speaker 02: And or is that required? [00:52:40] Speaker 00: I'm not aware of it ever being faced. [00:52:45] Speaker 00: I don't – one of the things that comes to mind is in particular if you have operations of a foreign corporation that are significant in a particular state or a few of those states, then while it might not necessarily be incorporated [00:52:59] Speaker 00: in those states like a domestic corporation. [00:53:02] Speaker 00: But there might be a situation where the contacts are so significant with that one particular state that that foreign corporation could be needing to be at home there. [00:53:10] Speaker 00: I'm remembering a case [00:53:12] Speaker 00: where the court found that a Philippine company, even though it was incorporated in the Philippines, was found to be at home in Ohio because everything was temporarily moved to Ohio during World War II. [00:53:29] Speaker 02: Okay, I think it's clearly an undecided question. [00:53:33] Speaker 02: It seems clear. [00:53:34] Speaker 02: Any other further questions from the bench? [00:53:36] Speaker 02: Thank you very much. [00:53:37] Speaker 02: This is an interesting case. [00:53:38] Speaker 02: We appreciate your presentations, and we'll take it under submission. [00:53:41] Speaker 02: We'll take a brief recess while the other parties move up.