[00:00:00] Speaker 03:
Case number 24, that's 71-B, Rosie Gleiberau, the defendant, versus Nation of Brunei, Mr. McGally, the defendant, still working for the evidence.

[00:00:12] Speaker 02:
Yes, Your Honor, may it please the court?

[00:00:16] Speaker 02:
In the full case, the Supreme Court made it eminently clear that the test for personal jurisdiction under the Due Process Clause of the Fifth Amendment

[00:00:28] Speaker 02:
does not include the 14th Amendment's minimal contacts requirements, but rather only requires a flexible reasonableness requirement.

[00:00:39] Speaker 02:
There are no tariffs.

[00:00:40] Speaker 03:
The Supreme Court didn't even say that.

[00:00:41] Speaker 03:
It said, we're not deciding whether there's a reasonableness requirement, but it would be reasonable in this case.

[00:00:48] Speaker 03:
So do we know if there's even a reasonableness requirement?

[00:00:53] Speaker 02:
I stand corrected.

[00:00:56] Speaker 02:
That is what the court said.

[00:00:58] Speaker 02:
However, the reasonableness requirement of only fair notice and opportunity to be heard, we believe, is the applicable standard that we get from a fold at its extreme.

[00:01:18] Speaker 02:
If there's no territorial limitation,

[00:01:21] Speaker 02:
There may not be a reasonable requirement, but if there is a reasonable necessary requirement, it is certainly met in this case and the post full cases make it clear that any narrow restrictions of a personal jurisdiction analysis under the Fifth Amendment

[00:01:44] Speaker 02:
that there should be no restriction other than a possible requirement of reasonableness.

[00:01:53] Speaker 01:
In the Fairfield Sentry case, the Southern District... The most important open question after fault is whether the Fifth Amendment test is reasonableness,

[00:02:05] Speaker 01:
or nothing.

[00:02:09] Speaker 01:
And you have a concurrence from the Supreme Court saying nothing.

[00:02:14] Speaker 01:
We have academic scholarship saying nothing.

[00:02:19] Speaker 01:
We have an express reservation from the Supreme Court on that question.

[00:02:25] Speaker 01:
We asked you for help and, you know, the nothing position wins the case for you and you haven't even asked for it.

[00:02:33] Speaker 01:
So how do we deal with this now?

[00:02:38] Speaker 02:
Well, taking the position that nothing is required, we certainly meet the test here.

[00:02:48] Speaker 02:
We have some post full guidance.

[00:02:51] Speaker 01:
Maybe that's the right answer, but it's a big step and you haven't really helped us get there.

[00:03:01] Speaker 04:
Mr. McCallion, under assuming that the reasonableness analysis applies, it has the interests of the plaintiff, the sovereign's interest in adjudicating the claim, and the burdens on the defendant.

[00:03:16] Speaker 04:
What is the United States' interest in adjudicating this claim?

[00:03:21] Speaker 04:
Where do we look to find that out, and what is it?

[00:03:28] Speaker 02:
There's a strong public interest

[00:03:31] Speaker 02:
consideration here that would favor the court's exercise of jurisdiction in that there's a strong national security interest in preventing U.S.

[00:03:44] Speaker 02:
facilities and infrastructure for being used in furtherance of terrorism and other unlawful activities.

[00:03:54] Speaker 04:
It's a little more attenuated than that, isn't it?

[00:03:57] Speaker 04:
It's not that they're meeting to advance terrorism, but that they're meeting in your allegations to sort of plot to retaliate against or silence your client for his allegations that they were participating in financing terrorism.

[00:04:18] Speaker 02:
Certainly that's a part of it.

[00:04:20] Speaker 02:
but what they were attempting to keep surreptitious were their activities and using both the rooms at the hotels in California, as well as banking facilities of the defendants in furtherance of money laundering and financing of terrorism.

[00:04:48] Speaker 02:
So their meetings to suppress my client's dissemination of information relating to that and to undercut his credibility were also meetings among the actors who were engaging in the terrorist financing.

[00:05:11] Speaker 02:
And we believe that the US would have a strong interest in that.

[00:05:19] Speaker 03:
Do you need the terrorism?

[00:05:21] Speaker 03:
Put aside the terrorism because as to these three corporate defendants, you're not seeking any remedy or damages for terrorism.

[00:05:32] Speaker 03:
It's just for reputational harm.

[00:05:35] Speaker 03:
So what is the U.S.

[00:05:36] Speaker 03:
interest if we put the terrorism to the side?

[00:05:39] Speaker 03:
I understand your argument, but I'm just asking you this to think about it this way.

[00:05:42] Speaker 03:
What is your argument if we put that to the side?

[00:05:47] Speaker 02:
Well, if we put that to the side, his damages were to his reputation.

[00:05:55] Speaker 02:
However, the goal of his speaking out and disseminating information about the illegal activities, certainly the US would have a strong interest in preventing the suppression of

[00:06:14] Speaker 02:
Any person, such as my client, the plaintiff to disseminate information that would be helpful to us law enforcement.

[00:06:25] Speaker 03:
So you don't have an argument apart from you keep trying to circle back to this terrorism thing.

[00:06:30] Speaker 03:
There's no allegation of the complaint.

[00:06:33] Speaker 03:
Your client.

[00:06:34] Speaker 03:
allegations about terrorism connections with certain Brenean officials, its allegations obviously, were part of a study he contracted to provide them.

[00:06:48] Speaker 03:
There's no allegation

[00:06:51] Speaker 03:
that your client wished to inform the U.S.

[00:06:54] Speaker 03:
government and law enforcement or Bruneian law enforcement or Slovenian law enforcement or anybody about this terrorism.

[00:07:03] Speaker 03:
Those allegations are not in your complaint.

[00:07:07] Speaker 03:
So I'm asking you one more time without reference to terrorism, then you have some tort claims, contract and tort claims.

[00:07:17] Speaker 03:
What is the U.S.

[00:07:18] Speaker 03:
interest in that, in those?

[00:07:23] Speaker 02:
Well, as in the Fairfield Sentry case, which was an offshoot of the Bernie Madoff, the court rejected a defendant's attempt to limit fold where there was use of the US banking channels and facilities.

[00:07:44] Speaker 02:
for foreign actors engaging in unlawful activity.

[00:07:49] Speaker 02:
In that case, it was not a terrorism case.

[00:07:52] Speaker 02:
It was merely the use of money laundering.

[00:07:56] Speaker 02:
And this was the information which my client brought to the attention of the Brunei government after his investigation.

[00:08:05] Speaker 02:
and the use of facilities, whether for banking facilities, which it's alleged that the defendants here used, whether it be for terrorist or non-terrorist purposes is immaterial.

[00:08:25] Speaker 02:
But the use of those US facilities for unlawful money laundering purposes, certainly the US government would have a strong interest

[00:08:35] Speaker 02:
in preventing the use of infrastructure and facilities in furtherance of civil Rico activity related to terrorism or not related to terrorism.

[00:08:51] Speaker 01:
When you say facilities, you mean the hotels, the hotel in California.

[00:08:58] Speaker 01:
The US has an interest because that hotel was used as part of these torts.

[00:09:07] Speaker 02:
Certainly they're availing themselves of US facilities, the hotels, to engage in illegal activities.

[00:09:15] Speaker 02:
But also, as in the one stock case in Illinois post full, there was the.

[00:09:25] Speaker 02:
there was the use of U.S.

[00:09:27] Speaker 02:
banking channels and also trading facilities for illegal purposes.

[00:09:35] Speaker 02:
And the U.S.

[00:09:36] Speaker 02:
would have a strong interest in preventing the use of banking and other facilities such as... Where do you allege, Dr. Glendon?

[00:09:49] Speaker 01:
This is a, as Judge Mollett suggested, this is a defamation claim.

[00:09:56] Speaker 01:
So suppose the allegations were just two foreign

[00:10:03] Speaker 01:
defendants in the United Kingdom conspire to defame a plaintiff in France.

[00:10:14] Speaker 01:
And it happens that they do that.

[00:10:17] Speaker 01:
They meet in the California hotel and conspire to do that.

[00:10:21] Speaker 01:
Does the US have an interest in adjudicating that tort because the meeting happened in the California hotel?

[00:10:32] Speaker 02:
Well, that certainly would be I would say yes.

[00:10:37] Speaker 02:
However, in our particular case, the meetings in California hotels and the use of U.S.

[00:10:44] Speaker 02:
banking facilities was designed not for garden variety defamation, but to prevent a whistleblower to the Brunei government from informing the government of money laundering

[00:11:01] Speaker 02:
activities which implicated the use of U.S.

[00:11:05] Speaker 02:
banking facilities.

[00:11:08] Speaker 03:
Just explain that to me.

[00:11:10] Speaker 03:
He gave his report to Brunei officials, right?

[00:11:15] Speaker 02:
Correct.

[00:11:16] Speaker 03:
So he informed the Brunei government.

[00:11:19] Speaker 03:
Yes and he's done he's done he's done the very I don't know that's whistleblowing when you're contracted to collect information but he provided the information to them they have it they decide to do with it what they will.

[00:11:35] Speaker 03:
No one stopped him giving information to the Brunei government.

[00:11:41] Speaker 02:
No the allegations of defamation

[00:11:44] Speaker 02:
And the contacting of Interpol to interfere with his business, including being stopped at JFK Airport and ruining his relationship with his one major US client, a cruise company, followed that particular disclosure.

[00:12:07] Speaker 02:
And the suppression of that information, the defamation, was designed to prevent

[00:12:14] Speaker 02:
information which he provided the Brunei government from being acted on by the Brunei government, but also with other related law enforcement, Interpol and others.

[00:12:32] Speaker 02:
So they went to Interpol in order to turn Interpol against him instead of him and the Brunei government being able to use Interpol and its

[00:12:43] Speaker 02:
international law enforcement connections to prevent the illegal use of international banking facilities.

[00:12:52] Speaker 04:
Mr. McCallion, one of the reasonableness factors, another one of them is the plaintiff's forum access.

[00:13:03] Speaker 04:
And one strike against your client is that he's not American, but that doesn't

[00:13:10] Speaker 04:
preclude the U.S.

[00:13:12] Speaker 04:
interest in providing a forum.

[00:13:15] Speaker 04:
Where else might your client pursue these claims if the U.S.

[00:13:21] Speaker 04:
court were unavailable?

[00:13:24] Speaker 04:
Seems like where the defendants are at home, presumably.

[00:13:27] Speaker 04:
Where are the potential fora that he could bring the claim, even if it's not his preferred claim?

[00:13:38] Speaker 02:
We don't believe he has any other form to pursue this at this point.

[00:13:47] Speaker 02:
He has substantial contacts with the US through his business and American clients and traveled extensively in the US and was indeed stopped at JFK Airport based on a blue notice which the defendants had

[00:14:07] Speaker 02:
induced the Interpol to issue, which would stop him at any international borders.

[00:14:14] Speaker 02:
So it adversely impacted his business internationally, but certainly adversely impacted his business in the US.

[00:14:24] Speaker 04:
Why not the UK?

[00:14:25] Speaker 04:
Are these businesses based in the UK?

[00:14:28] Speaker 04:
Or at least some of them?

[00:14:34] Speaker 02:
We are not aware of any remedy in the UK.

[00:14:41] Speaker 02:
And it's not in the record, but he actually did inform UK authorities relating to it, but was not able to get any particular recourse

[00:14:59] Speaker 04:
Did your client inform U.S.

[00:15:03] Speaker 04:
authorities, for example, whether they have an interest after fault in how the personal jurisdiction analysis in this case is framed to provide, to ensure that under Rule 4K2, persons in this situation similar to your client

[00:15:24] Speaker 04:
would have a U.S.

[00:15:26] Speaker 04:
forum?

[00:15:27] Speaker 04:
It would be helpful when we're trying to decide the U.S.

[00:15:30] Speaker 04:
interests.

[00:15:31] Speaker 04:
It might be helpful to hear what the U.S.

[00:15:35] Speaker 04:
government perceives to be the U.S.

[00:15:37] Speaker 04:
interest.

[00:15:38] Speaker 04:
But you haven't had any communication with them or invited them to file an amicus brief or?

[00:15:44] Speaker 02:
We have not, Your Honor.

[00:15:48] Speaker 03:
Ms.

[00:15:48] Speaker ?:
Q.

[00:15:50] Speaker 03:
You talked about the use of your complaint says, at least once.

[00:15:56] Speaker 03:
A hotel was used in the US, the Beverly Hills hotel for a meeting and what the complaint calls a safe from.

[00:16:07] Speaker 02:
What do you mean by safe from a safe room?

[00:16:13] Speaker 02:
Like a safe house would be a place where interested parties would conduct business.

[00:16:19] Speaker 02:
The room would be monitored to make sure that there's no surveillance equipment in it and that meetings could be held without surveillance or recording devices present.

[00:16:40] Speaker 03:
So, that would be a hotel room that allows for confidential meetings.

[00:16:46] Speaker 02:
That's correct and.

[00:16:48] Speaker 02:
And please, I'm sorry.

[00:16:52] Speaker 03:
No, you please go ahead.

[00:16:54] Speaker 02:
The affidavit submitted declaration submitted by.

[00:16:58] Speaker 02:
An investigator identified.

[00:17:03] Speaker 02:
specific dates, numerous specific dates.

[00:17:07] Speaker 03:
I want to stay focused on the rooms here because that declaration doesn't mention anything about safe rooms.

[00:17:12] Speaker 03:
So I really want to understand this information belief allegation.

[00:17:15] Speaker 03:
So your allegation is that this hotel had at least one room where meetings could be held confidentially.

[00:17:34] Speaker 03:
And then that room was, these clients were allowed, these hotel clients were allowed to use that room.

[00:17:45] Speaker 03:
I just want to make sure that's what you mean by safe room.

[00:17:47] Speaker 02:
Yes, and we're used on numerous occasions.

[00:17:51] Speaker 03:
Is your argument that the safe room was made especially for them or that the hotel, like a lot of high-end hotels that might host foreign governments or diplomats or even celebrities have meeting rooms that are soundproofed?

[00:18:17] Speaker 02:
Yeah, in this case, it would mean that other than soundproofs, it would be tested and searched for any surveillance equipment or recording equipment before any particular meeting.

[00:18:35] Speaker 03:
By the people attending it there or by the hotel?

[00:18:40] Speaker 02:
by the hotel security and possibly some of the attendees as well their security.

[00:18:52] Speaker 03:
I think this is an information and belief.

[00:18:57] Speaker 03:
So what information do you have to make this allegation that there was such a room in this hotel?

[00:19:10] Speaker 02:
It's the declaration of Mr. Danette.

[00:19:14] Speaker 03:
He doesn't mention anything about safe rooms that I saw.

[00:19:17] Speaker 03:
Maybe I'm wrong.

[00:19:19] Speaker 01:
I just read it and I didn't see it either.

[00:19:21] Speaker 03:
So he doesn't talk about that.

[00:19:22] Speaker 03:
So I'm trying to understand what information I believe you have.

[00:19:25] Speaker 03:
This is anything other than a confidential conference room.

[00:19:31] Speaker 03:
Well, he identifies specific dates of... I'm asking specifically about the allegation that the hotel provided what you call in scare quotes, safe room, a safe room for meeting.

[00:19:48] Speaker 03:
And what you meant by that, if you just meant a confidential meeting room that

[00:19:57] Speaker 03:
It would be sensible that hotels, at least higher end hotels with a clientele that would need such things on occasion would offer such a room.

[00:20:08] Speaker 03:
But you're giving me this information about it, then the hotel comes in and they sweep it.

[00:20:13] Speaker 03:
And I'm just trying to get where, what your basis for that is, because that's not in your allegation.

[00:20:20] Speaker 03:
There's no clarification.

[00:20:21] Speaker 03:
What you mean is to say firms that were provided.

[00:20:25] Speaker 02:
The information comes solely from Mr. Dinette based on his investigation.

[00:20:32] Speaker 03:
So that's not in his declaration.

[00:20:35] Speaker 03:
So you're just telling me, I thought that allegation was in your complaint before you had the Dinette declaration.

[00:20:42] Speaker 02:
Yes, that information came from Mr. Dinette that we included.

[00:20:47] Speaker 03:
But it's not in the declaration, the stuff about safe rooms and how they work.

[00:20:52] Speaker 03:
So that's just no facts before the court.

[00:20:55] Speaker 03:
So I'm trying to understand how we're supposed to think about your complaint seems to suggest.

[00:21:01] Speaker 03:
The fact that a safe room and scare quotes was provided is a relevant.

[00:21:06] Speaker 03:
Fact is to sort of the complicity of the Dorchester group.

[00:21:12] Speaker 03:
But just putting in two words and scare quotes in a complaint doesn't really carry that load.

[00:21:17] Speaker 03:
And there's no factual allegations saying that this is anything other than either a confidential room or a safe room from perhaps earthquakes or something in California or, you know, the bomb scare room or whatever it is.

[00:21:32] Speaker 03:
But there's nothing

[00:21:34] Speaker 03:
that we can rely on about what you just described about how you think this room operates in the complaint or the declaration that I'm aware of.

[00:21:42] Speaker 03:
But if there's something else, let me know.

[00:21:44] Speaker 02:
Well, the information was alleged in the complaint, verified complaint, on a good faith belief.

[00:21:54] Speaker 03:
All you alleged is the existence of something called a safe room.

[00:21:57] Speaker 03:
You didn't define safe room.

[00:22:00] Speaker 03:
The complaint doesn't say what's meant by that.

[00:22:06] Speaker 02:
Right.

[00:22:06] Speaker 02:
Well, OK.

[00:22:08] Speaker 03:
There's lots of different meanings.

[00:22:09] Speaker 03:
There's lots of different meanings for safe room.

[00:22:12] Speaker 02:
OK.

[00:22:13] Speaker 02:
Well, I'm describing to you in good faith what Mr. Donnette conveyed to us.

[00:22:18] Speaker 02:
And we perhaps did not go into the level of detail that the court would want.

[00:22:28] Speaker 02:
But that's exactly what he was describing to us.

[00:22:32] Speaker 02:
And the reason why we included it

[00:22:35] Speaker 02:
in the complaint.

[00:22:37] Speaker 01:
Let me try it.

[00:22:38] Speaker 01:
Let me just try it this way.

[00:22:40] Speaker 01:
We have two nuggets.

[00:22:43] Speaker 01:
One is to Matt, which tells us there were meetings at this hotel and who was there.

[00:22:53] Speaker 01:
And number two is the complaint which says the hotel has, I'll just say, confidential facilities.

[00:23:04] Speaker 01:
What is the allegation or even information and belief that supports a plausible inference that Dorchester is in on this grand conspiracy?

[00:23:21] Speaker 01:
as opposed to Dorchester is just renting out hotel rooms and meeting facilities.

[00:23:28] Speaker 02:
Well, as alleged in the complaint, in good faith, Dorchester had these facilities and also not only made these rooms available, but used its banking facilities.

[00:23:44] Speaker 02:
to facilitate the money laundering.

[00:23:47] Speaker 02:
That's perhaps even more significant than the use of confidential or safe rooms that it's alleged based on

[00:24:01] Speaker 02:
Information and belief, but reliable information and belief from a highly experienced counter intelligence intelligence officer that that the banking facility based on the information provided to him.

[00:24:18] Speaker 02:
that the banking facilities of the Dorchester were being used for money laundering purposes in addition to the use of its rooms and infrastructure.

[00:24:33] Speaker 03:
Can I ask you one other thing too?

[00:24:34] Speaker 03:
You also allege there's one other nugget and that is that a representative of each of the corporate defendants, including the Dorchester group, attended the meeting.

[00:24:48] Speaker 03:
What do you mean by representatives?

[00:24:53] Speaker 03:
And what information do you have?

[00:24:56] Speaker 03:
Do you have any further factual information that is not included in the complaint?

[00:25:02] Speaker 02:
Now the information comes from Mr. Donett.

[00:25:06] Speaker 03:
His declaration doesn't even mention a single corporate defendant attending one of these meetings.

[00:25:11] Speaker 03:
So he doesn't say anything about the corporate defendants.

[00:25:15] Speaker 03:
He talks about other people attending the meetings.

[00:25:18] Speaker 03:
So when you use the phrase representative in the complaint, please define representative for me as used in the complaint.

[00:25:29] Speaker 02:
Yes.

[00:25:30] Speaker 02:
We're advised on information and believe that it was a representative of Dorchester, a financial person familiar with the use of the financial facilities of Dorchester would be the appropriate one to be at the meeting, as well as representatives of the other corporate defendants.

[00:25:53] Speaker 03:
OK.

[00:25:53] Speaker 03:
Just to be clear, you said a person

[00:25:57] Speaker 03:
Familiar with finances?

[00:26:00] Speaker 02:
Yes, in particular, Dorchester's financial facilities, their banking facilities.

[00:26:09] Speaker 03:
Okay, so someone from Dorchester who's familiar with their finance, financial facilities.

[00:26:15] Speaker 02:
Yes.

[00:26:15] Speaker 03:
That's what you mean by representative?

[00:26:18] Speaker 02:
Correct.

[00:26:18] Speaker 03:
Is that what you meant for representative as to the other two hotels as well?

[00:26:22] Speaker 02:
Yes.

[00:26:23] Speaker 03:
Okay.

[00:26:26] Speaker 03:
Any other questions?

[00:26:29] Speaker 03:
Thank you.

[00:26:29] Speaker 03:
Thank you very much for coming back again, Mr. McAllen.

[00:26:33] Speaker 03:
We will give you a couple minutes.

[00:26:35] Speaker 03:
Thank you.

[00:26:37] Speaker 03:
Mr. Worth, thank you for coming back again, too.

[00:26:41] Speaker 00:
Absolutely.

[00:26:42] Speaker 00:
Good morning, Your Honors.

[00:26:43] Speaker 00:
May it please the court.

[00:26:45] Speaker 00:
Steven Worth on behalf of the corporate defendants.

[00:26:49] Speaker 00:
I think there are three principles that should guide the court's analysis this morning.

[00:26:54] Speaker 00:
The first is that Foale doesn't decide this appeal, but I do think it does provide significant guidance.

[00:27:00] Speaker 00:
Foale held that Congress has power under the Fifth Amendment to enact targeted jurisdictional statutes like the PSJA VTA, which expand jurisdiction of the federal courts in a manner that is appropriately tailored to protect strong federal interests.

[00:27:15] Speaker 00:
The second point is that Congress has not enacted a jurisdictional statute like the PSJA VTA here.

[00:27:22] Speaker 00:
The only potential basis for personal jurisdiction is rule 4K2, but the rule doesn't extend to the outer reaches of constitutionally permissible jurisdiction.

[00:27:32] Speaker 00:
It requires... Why?

[00:27:33] Speaker 03:
It says as allowed under the laws and the constitution.

[00:27:36] Speaker 03:
It's very taxing to go as far as the constitution lets it go.

[00:27:41] Speaker 00:
I understand that.

[00:27:43] Speaker 00:
I understand that the text does refer to the U.S.

[00:27:45] Speaker 00:
Constitution.

[00:27:46] Speaker 00:
However, Rule 4K2 was promulgated in a specific time on a specific constitutional backdrop to address a very specific gap in the rules.

[00:27:56] Speaker 03:
Did the Fifth Amendment mean something different when it was promulgated?

[00:27:59] Speaker 00:
Absolutely, it did.

[00:28:00] Speaker 03:
And in fact, the rules committee amendments, I'm sorry, that's something different when that was promulgated or maybe people misunderstood.

[00:28:07] Speaker 00:
At the time the rule was promulgated, the rules committee understood the Constitution to mean something very different.

[00:28:13] Speaker 00:
And we know that they understood it to mean something very different because they cited the cases that said that it meant something very different.

[00:28:22] Speaker 04:
Good.

[00:28:23] Speaker 04:
I mean, but they didn't codify that understanding.

[00:28:28] Speaker 04:
They didn't refer to minimum contacts, fair play, and substantial justice.

[00:28:33] Speaker 04:
Instead, they just said consistent with the Constitution.

[00:28:36] Speaker 04:
So typically, we would read that as sort of a dynamic incorporation as whatever the Fifth Amendment requires, however the courts and

[00:28:47] Speaker 04:
relevant actors understand understanding of the Fifth Amendment evolves and that would be the applicable understanding.

[00:28:54] Speaker 00:
I think that the rule committee's advisory notes say basically the opposite of that in the way that they approach the issue.

[00:29:01] Speaker 00:
They said very specifically they incorporated a minimum contacts analysis.

[00:29:06] Speaker 00:
They cited two cases at the time

[00:29:09] Speaker 00:
that applied and aggregated U.S.

[00:29:13] Speaker 00:
nexus approach to minimum contacts.

[00:29:15] Speaker 04:
How can we retain that against the Supreme Court's unanimous statement and fault that we have made clear that the due process clause of the Fifth Amendment does not incorporate the Fourteenth Amendment minimum contacts standard?

[00:29:33] Speaker 04:
So one thing that's clear under fold is the minimum context analysis is in opposite when we're looking at the Fifth Amendment.

[00:29:42] Speaker 04:
Now, there may be other analyses that do some of that same work, but I can't understand how you revert to that.

[00:29:53] Speaker 04:
for 4K2 when the analysis in fold is not limited to the situation in which there's a specific statute extending personal jurisdiction.

[00:30:04] Speaker 04:
It appears to be a general understanding of the Fifth Amendment as it applies to personal jurisdiction.

[00:30:10] Speaker 00:
I think one way to think about it is to paraphrase Justice Frankfurter, even though the rule has been transplanted into a new constitutional regime, it still takes the old soil with it.

[00:30:21] Speaker 00:
And I think that the rule advisory committee's specific statement that it was addressing a small gap

[00:30:28] Speaker 00:
in the rule makes clear exactly what they were trying to do.

[00:30:31] Speaker 00:
There's no indication that they intended this modest patch to create a new and vastly different personal jurisdiction regime out of whole cloth.

[00:30:42] Speaker 00:
I think the Supreme Court's been clear, even recent cases, Chief Justice Roberts has stated that the advisory committee notes are a reliable source of

[00:30:52] Speaker 00:
the meaning of the text of the rules.

[00:30:54] Speaker 00:
And I think here it has to take into account the constitutional backdrop on which it was promulgated.

[00:31:00] Speaker 00:
No one understood the rules committee to be engaged in this complete rewriting of personal jurisdiction in the United States.

[00:31:12] Speaker 04:
I know you take issue with it, but how is the concurrence and folds off base in

[00:31:21] Speaker 04:
concluding that there are no constitutional limits on the federal court's personal jurisdiction over foreign defendants or defendants that don't fall into 4K1.

[00:31:36] Speaker 00:
Critically, the concurrence is only two justices, and the majority's analysis would be entirely unnecessary if the concurrence were the law.

[00:31:48] Speaker 04:
But I'm asking you, what is wrong about

[00:31:52] Speaker 04:
The majority doesn't reach it.

[00:31:54] Speaker 04:
But where are the limits?

[00:31:56] Speaker 04:
Where are you finding the source of the limits if the court unanimously has said that the Fifth Amendment does not encompass the parallel limits of the 14th?

[00:32:07] Speaker 04:
I mean, it's a tough case.

[00:32:09] Speaker 04:
The Supreme Court left all of us.

[00:32:12] Speaker 04:
with having cleared the board and not really provided signposts for a case like this, but only for a case where there's a statute authorizing personal jurisdiction.

[00:32:24] Speaker 04:
But as I take it, the rule 4K2 is the long arm applicable here.

[00:32:29] Speaker 04:
And it very broadly, under the terms of fault, it very broadly authorizes

[00:32:34] Speaker 04:
federal courts, United States federal courts to exercise jurisdiction.

[00:32:39] Speaker 04:
And so the question is, I take your brief to be saying, well, we're going to assume that minimum context and reasonableness apply.

[00:32:50] Speaker 04:
And I just am not seeing where you get that.

[00:32:54] Speaker 00:
So I guess the first premise that I'd start with is that, in fact, Fold didn't clear the board.

[00:33:02] Speaker 00:
That, in fact, it was narrowly tailored to a specific context.

[00:33:09] Speaker 00:
And it didn't entirely upset the apple cart.

[00:33:12] Speaker 00:
And I don't think that the Supreme Court intended Fold to be a complete reset.

[00:33:20] Speaker 03:
I'm sorry, are you saying that if we don't have a special statute, we just keep doing minimum contacts under the Fifth Amendment?

[00:33:27] Speaker 00:
Yes.

[00:33:28] Speaker 03:
I think the Supreme Court pretty much said minimum contacts is just not the Fifth Amendment analysis.

[00:33:34] Speaker 00:
So let me add some subtlety to that.

[00:33:38] Speaker 00:
I think that where there has not been a specific statute that has been enacted, the baseline needs to be some meaningful US nexus.

[00:33:47] Speaker 00:
It doesn't have to be the exact.

[00:33:48] Speaker 03:
That's your interpretation of a new post-fold test.

[00:33:53] Speaker 03:
But I think we have to take as given.

[00:33:54] Speaker 03:
The Supreme Court has said, all you folks who thought minimum contacts are filed under the Fifth Amendment, you're wrong.

[00:34:04] Speaker 03:
no minimum contacts test right so the fifth amendment does not require telling you what the new test is but it's not that and whatever that test may be this one meets if there's any test at all

[00:34:17] Speaker 03:
this one will meet it because it seems like they're saying at most it would be reasonable.

[00:34:25] Speaker 00:
I understand Judge Mallett.

[00:34:26] Speaker 00:
I think probably the easiest way to approach this is to consider whether there has been a grant of

[00:34:36] Speaker 00:
of personal jurisdiction by statute or rule.

[00:34:40] Speaker 00:
And we've looked to rule 4K2.

[00:34:42] Speaker 00:
And that's where I think our reading of 4K2 on the constitutional backdrop on which it was promulgated is important.

[00:34:51] Speaker 00:
And I think that's where you can very narrowly say that minimum contacts persist until Congress says that it shouldn't anymore.

[00:35:00] Speaker 00:
And I think that's a good answer.

[00:35:03] Speaker 03:
Just under 4K2?

[00:35:04] Speaker 00:
Under rule 4K2, exactly.

[00:35:06] Speaker 03:
But there's I know you reference the value advisory committee notes, but have they ever been.

[00:35:13] Speaker 03:
Have they ever said that they carry the carry weight when there's ambiguity and considering something.

[00:35:19] Speaker 03:
But I'm not sure what's ambiguous about to the limit of the laws and the constitution.

[00:35:24] Speaker 00:
I think actually the Supreme Court has gone a little bit further than saying that it's only in instances of ambiguity, I think.

[00:35:32] Speaker 03:
Can it contradict the text?

[00:35:34] Speaker 03:
Can we use it to say the text doesn't mean what it says?

[00:35:39] Speaker 00:
I would not say that that's what we are proposing at all.

[00:35:42] Speaker 03:
I think because it's exercising jurisdiction is consistent with the United States Constitution and laws.

[00:35:47] Speaker 03:
You don't argue it's inconsistent with any law.

[00:35:50] Speaker 03:
And so the only question is, would exercising jurisdiction be consistent with the US Constitution?

[00:35:55] Speaker 03:
And what I hear you saying is, based on advisory committee notes, we should read that as exercising jurisdiction is consistent with how lots of courts thought the United States Constitution read.

[00:36:07] Speaker 00:
And how the Rural Advisory Committee understood it to apply when they were promulgating a narrow rule.

[00:36:13] Speaker 03:
That's just a very different test.

[00:36:15] Speaker 01:
It's an odd interpretation of US Constitution.

[00:36:20] Speaker 01:
Normally, you would understand that to mean whatever the US Constitution actually means.

[00:36:26] Speaker 01:
You're putting a gloss on it, US Constitution as understood at the time.

[00:36:32] Speaker 01:
Well, I think tough.

[00:36:35] Speaker 01:
I understand your hesitancy, but I do.

[00:36:37] Speaker 01:
You have the advisory committee notes.

[00:36:42] Speaker 01:
And I don't think you cited this, but you also have charming Betsy to prevent a wildly extravagant assertion of jurisdiction on the assumption that there's no Fifth Amendment limit.

[00:36:56] Speaker 01:
But it's still a very tough textual position.

[00:37:00] Speaker 00:
Well, let me see if this might persuade you.

[00:37:06] Speaker 00:
And I think this is critical.

[00:37:07] Speaker 00:
If rule 4K2 did truly extend to the outer limits of the US Constitution, then Congress never would have needed to pass the PSJVTA.

[00:37:16] Speaker 00:
The court's entire analysis in full would be unnecessary.

[00:37:20] Speaker 00:
The plaintiffs in full would have simply been able to hail any foreign defendant, not only the PLO and the PA into court, but anyone who harmed them on the basis of rule 4K2.

[00:37:30] Speaker 00:
Of course, that was never contemplated.

[00:37:33] Speaker 00:
Congress certainly never contemplated that.

[00:37:35] Speaker 00:
never contemplated that.

[00:37:38] Speaker 00:
I just don't think that anyone from the Rules Committee until now has ever considered Rule 4K2 to mean universal worldwide personal jurisdiction.

[00:37:53] Speaker 00:
And I think

[00:37:55] Speaker 00:
That's true, because Rule 4K 2 doesn't serve any specific federal interest.

[00:38:02] Speaker 00:
It's not tailored to any federal interest.

[00:38:05] Speaker 00:
And so to the extent that the court considers the US interest to be relevant in this analysis at all, and I think that Fold recommends that the court do that.

[00:38:17] Speaker 03:
I don't think it recommends anything.

[00:38:19] Speaker 03:
I think it says, here's what we're looking at in this case, and we're content.

[00:38:23] Speaker 03:
They're just expressed that we're not saying what the test is.

[00:38:28] Speaker 03:
And so we have to accept that.

[00:38:30] Speaker 00:
You do have to accept that.

[00:38:31] Speaker 00:
I do think, though, that the court's analysis is meaningful.

[00:38:37] Speaker 03:
They did it because I think... Because they were avoiding a question that they didn't need to confront in that case.

[00:38:42] Speaker 03:
It does not mean implying anything about the answer to that question, does it?

[00:38:49] Speaker 00:
Well, they were presented with the opportunity to reach that broader holding and decline to do so.

[00:38:55] Speaker 03:
So it's not necessary to that case.

[00:38:58] Speaker 03:
And it's just that, I mean, plot versus spend for farm.

[00:39:02] Speaker 03:
If you can decide a narrower constitutional rather than a broader constitutional issue, you do the narrower.

[00:39:07] Speaker 00:
Then that principle also could apply here to your interpretation of rule 4K2, of course.

[00:39:13] Speaker 03:
What do you mean?

[00:39:14] Speaker 00:
Sorry.

[00:39:14] Speaker 00:
You could take a narrower view of the rule in order to avoid the thorny or constitutional questions.

[00:39:20] Speaker 04:
So assume that we don't apply minimum context, that we're unpersuaded.

[00:39:31] Speaker 04:
And I'm not saying I am, I'm just saying for purposes of understanding your position and its alternatives.

[00:39:37] Speaker 04:
Assume that we are unpersuaded that minimum context is part of the soil that continues forward

[00:39:44] Speaker 04:
in rule 4K2.

[00:39:46] Speaker 04:
What about reasonableness?

[00:39:48] Speaker 04:
The Supreme Court in fold was pretty clear.

[00:39:50] Speaker 04:
Fifth Amendment does not carry minimum context.

[00:39:55] Speaker 04:
But

[00:39:57] Speaker 04:
open about reasonableness.

[00:40:00] Speaker 04:
Now that was in the situation where they could assume it applied because it was met.

[00:40:05] Speaker 04:
If we're going to use reasonableness here as an obstacle to the plaintiff, we have to have firmer ground than that to continue to apply it.

[00:40:16] Speaker 04:
What's your best argument that

[00:40:20] Speaker 04:
we can continue, at least in this case, to apply the Fifth Amendment as requiring the sort of reasonableness, the fair play, and substantial justice factors that are not federalism related.

[00:40:33] Speaker 00:
The plaintiff hasn't seriously contested that the reasonable standard does apply.

[00:40:36] Speaker 00:
And I think in his brief he specifically said it does apply.

[00:40:39] Speaker 00:
But putting that aside, I think there is a good reason to continue doing it here.

[00:40:43] Speaker 00:
And that's one, that the Supreme Court certainly did not displace the reasonableness analysis.

[00:40:49] Speaker 00:
And two, precedent here I think is a good idea for many, many reasons, including

[00:41:00] Speaker 00:
that the test has been applied consistently by courts for decades, that it promotes fairness and substantial justice vis-a-vis defendant's interests.

[00:41:11] Speaker 00:
It ensures fair notice.

[00:41:12] Speaker 00:
It protects reliance interests.

[00:41:14] Speaker 00:
It stops forum shopping.

[00:41:16] Speaker 00:
All the reasons, I think, that supported a reasonableness analysis under Sahi would apply in the Fifth Amendment context as well.

[00:41:27] Speaker 04:
For reasonableness purposes,

[00:41:30] Speaker 04:
The allegations of the complaint read in the light most favorable to the plaintiff are that there's a conspiracy against him.

[00:41:40] Speaker 04:
And as you know, one of the core elements of a conspiracy is agreement.

[00:41:46] Speaker 04:
And he's argued that the agreement was hammered out, at least in part, at the Dorchester-owned hotel in Los Angeles.

[00:42:00] Speaker 04:
It goes back before international shoe under Pinoyer, which really rests on basic international law ideas of sovereignty.

[00:42:12] Speaker 04:
US sovereignty unquestionably encompasses property and activities that occur within US territory.

[00:42:21] Speaker 04:
Why is that not enough, at least to support Fifth Amendment

[00:42:28] Speaker 04:
personal jurisdiction over Dorchester?

[00:42:34] Speaker 00:
So with regard to Dorchester, I think we could start with the ownership of the hotel itself.

[00:42:40] Speaker 00:
I don't think that there's any suggestion from plaintiff that near ownership of the hotel and its use by the conspirators would be sufficient.

[00:42:53] Speaker 00:
It would require, I think, sufficient

[00:42:58] Speaker 00:
sufficiently specific factual allegations to show knowledge and intent?

[00:43:03] Speaker 04:
Why knowledge?

[00:43:03] Speaker 04:
Knowledge is part of, it could be part of Dorchester's involvement on the merits.

[00:43:11] Speaker 04:
But when we're talking about personal jurisdiction, the merits scienter is never part of the connection that we look at.

[00:43:25] Speaker 04:
Dorchester was aware that it was within the United States.

[00:43:28] Speaker 04:
And apparently, in order for it to have any liability, I believe that the allegation is that a managerial-level member of the Dorchester company was at the meeting.

[00:43:43] Speaker 04:
So maybe knowledge is even pleaded insofar as it's relevant.

[00:43:48] Speaker 04:
But I'm not sure that knowledge has ever been an aspect beyond knowledge that you are, in fact, in the territorial United States.

[00:43:57] Speaker 00:
If you look back to even like Schaeffer against Heitner, the Supreme Court was clear that this sort of like quasi and REM jurisdiction isn't sufficient.

[00:44:07] Speaker 00:
You need to show that the claims relate to the property.

[00:44:11] Speaker 04:
That goes to the relating to or arising from aspect, which is not, again, that's not a knowledge.

[00:44:18] Speaker 04:
That's not a state of mind element.

[00:44:20] Speaker 04:
That's the nexus, the relationship between the parties

[00:44:24] Speaker 04:
and the forum and the claim.

[00:44:28] Speaker 04:
But I take that to be part of the minimum context analysis that the Supreme Court has set aside.

[00:44:37] Speaker 00:
I think it could also be incorporated into a reasonableness analysis vis-a-vis the defendant's liberty interests, which is a part of the reasonableness analysis.

[00:44:49] Speaker 00:
I also do think that there would be something.

[00:44:51] Speaker 04:
So talk about that.

[00:44:51] Speaker 04:
Why is it if Dorchester has a business and presumably lawyers dealing with its legal problems that are barred in the United States, what is the burden on the defendant that's so outside of the norm for purposes of a case like this?

[00:45:13] Speaker 00:
Well, I think for

[00:45:16] Speaker 00:
Dorchester putting aside whether

[00:45:22] Speaker 00:
He plaintiff has sufficiently alleged that a meeting took place or that representatives attended that meeting.

[00:45:30] Speaker 00:
I think near ownership of a hotel, it's simply fundamentally unfair to hold defendants liable for all criminal conduct that could take place at that hotel.

[00:45:43] Speaker 04:
Well, that's liability to say that the place for this suit.

[00:45:48] Speaker 04:
I mean, it may be a baseless suit, but you're asking us,

[00:45:52] Speaker 04:
to assess the allegations in a 12b6 way, not a 12b2 way.

[00:45:59] Speaker 04:
I'm really trying to understand.

[00:46:01] Speaker 04:
And you said, and it may be right, that some kind of nexus between the parties, the contacts, and the claim

[00:46:12] Speaker 04:
is instinct in the reasonableness concept and it's unfair notice we've applied well fair notice you get i guess there's notice in terms of service of process but you mean notice as in foreseeable that are in forum activities

[00:46:30] Speaker 04:
could lead to us being held in court for something like this?

[00:46:33] Speaker 04:
And I guess if, I mean, following up on Judge Millett's line of questioning, if you're running a hotel and if it turns out, let's say, that you are tolerating a prostitution ring being run out of the hotel, I mean, there's no question but that you could be

[00:46:51] Speaker 04:
that the forum where the hotel is located, the court there would have jurisdiction.

[00:47:00] Speaker 04:
There may be a question about knowledge, recklessness, deliberate indifference to what's going on, but that's a merits question.

[00:47:09] Speaker 04:
The question about what is nefarious conduct happening in the hotel would seem to me

[00:47:17] Speaker 04:
hard to say where in the surviving Fifth Amendment analysis that element persists.

[00:47:27] Speaker 00:
I think it does persist in the fair notice that your conduct will give rise to jurisdiction in the forum, where

[00:47:43] Speaker 04:
So let's say I open a hotel and I want it to be a very hip place for young people.

[00:47:49] Speaker 04:
And it turns out that it's a huge nuisance that the neighbors are furious because there's music all night and young people coming and going and parking, closing their driveway so they can't come and go, exposing their children to public drug use.

[00:48:13] Speaker 04:
want and people want to sue me for that.

[00:48:16] Speaker 04:
Any question that that would be that the court in the forum where my hotel is located would be

[00:48:29] Speaker 04:
appropriate under the Fifth Amendment?

[00:48:31] Speaker 00:
I think in that instance, Judge Pillar, that the claims there are so wound up in the operation of a hotel, the normal operation of a hotel, and knowledge of how it's being used that, in fact, it is reasonable in that circumstance.

[00:48:47] Speaker 00:
I think here, where you allege a worldwide conspiracy with a meeting or two in California, it's just simply not a sufficient connection to give.

[00:48:57] Speaker 04:
Not foreseeable that international businesses involved in unlawful, doesn't have to be criminal, I mean, this is a civil case, involved in conduct that violates the law would take place in a conference facility.

[00:49:14] Speaker 00:
Right.

[00:49:15] Speaker 00:
And unreasonable to assert US court jurisdiction over that sort of a claim.

[00:49:22] Speaker 03:
Even if a representative Dorchester was in the meeting?

[00:49:27] Speaker 03:
That seems like a materially different situation than the, you know, I didn't know that guy was there in the room.

[00:49:38] Speaker 00:
And I agree, I agree Judge Millett and I think that does present a much closer question.

[00:49:42] Speaker 03:
That's the allegation here is not only that, you know, bad things are happening in your room once, maybe more than once, but that Dorchester was in the room when it happened.

[00:49:56] Speaker 00:
Yeah, so I would resist that.

[00:49:58] Speaker 00:
I think that both at today's oral argument and at the last oral argument, Plaintiff's Council was unable to identify a good faith basis for those allegations.

[00:50:09] Speaker 00:
And we've scoured the complaint and the dinette.

[00:50:12] Speaker 03:
He alleged a representative.

[00:50:13] Speaker 03:
I don't understand why that has some factual content.

[00:50:20] Speaker 03:
And he hasn't been allowed jurisdictional discovery.

[00:50:24] Speaker 00:
But all he said for the basis for his.

[00:50:27] Speaker 03:
If it turned out it was the CEO, surely you wouldn't argue lack of personal jurisdiction at that point.

[00:50:35] Speaker 03:
CEO is in on the meetings.

[00:50:37] Speaker 03:
But completely to be clear, I don't have a basis for that either.

[00:50:41] Speaker 03:
I'm just throwing this out as a question.

[00:50:43] Speaker 03:
We rent out these super secret rooms, and the CEO is in there during the meeting.

[00:50:49] Speaker 03:
If they had alleged CEO rather than representative, any question?

[00:50:54] Speaker 00:
If he had a good faith basis for the allegation.

[00:50:57] Speaker 03:
We assume good faith.

[00:50:58] Speaker 03:
Let's say the complaint instead of representative says the CEO was in the room.

[00:51:06] Speaker 03:
We don't dismiss complaints because the defendant comes in and says, I don't think I can trust him for what he said.

[00:51:12] Speaker 03:
We take it as given.

[00:51:14] Speaker 03:
I assume you're not impugning his faith in this regard.

[00:51:19] Speaker 03:
If it said CEO, I get it doesn't, but if it said CEO, what's the answer?

[00:51:28] Speaker 00:
I hesitate to concede it on the hypothetical because I don't know how it fits in.

[00:51:32] Speaker 03:
Not conceding anything, it's a hypothetical.

[00:51:34] Speaker 03:
You're telling me what your legal, your answer is or how to legally analyze that because it doesn't say CEO.

[00:51:40] Speaker 03:
So you don't have to worry about conceding that point, but you do have to tell me how your legal analysis that you've just been discussing with Judge Pillard answers that question.

[00:51:54] Speaker 00:
I think there would need to be specific facts to make sure, to make that, to render that a plausible allegation.

[00:52:04] Speaker 03:
What would be, under what rule would they have to say more than the CEO was in the room with the other allegations we have here of people in the safe room for this meeting on how to hurt client X?

[00:52:23] Speaker 03:
I think fundamentally the problem here is- What case says that we get squirrely whenever a CEO is referenced and we have to have more facts?

[00:52:33] Speaker 03:
What case you're relying on?

[00:52:39] Speaker 03:
We do notice pleading in this country.

[00:52:42] Speaker 00:
Well, I think at least under Twombly, it needs to move from possible to plausible.

[00:52:50] Speaker 00:
And they're simply not facts.

[00:52:53] Speaker 03:
If the CEO had been there, let's just appear yes or no fact question.

[00:52:58] Speaker 03:
It's not a plausibility thing.

[00:53:00] Speaker 03:
It's not that they're doing something fanciful.

[00:53:04] Speaker 03:
There are, unfortunately, CEOs in this world who engage in bad conduct.

[00:53:11] Speaker 03:
I don't know what's implausible.

[00:53:13] Speaker 03:
And again, I'm not speaking anything to Dorchester in particular here, but about an allegation like that.

[00:53:19] Speaker 03:
I don't see how that fits into an implausibility analysis under Twombly.

[00:53:23] Speaker 03:
I don't see it.

[00:53:24] Speaker 03:
I think if it's just we don't believe the guy on the other side, so it must be implausible.

[00:53:30] Speaker 00:
I think it's more, I think it is more than that here because we do have the facts.

[00:53:34] Speaker 03:
This is not a conclusory.

[00:53:37] Speaker 03:
As your brief said, a conclusive complaint, particularly if you read it supplemented by the declaration, there's date, there's locations, dates, names, companies, there's particularities.

[00:53:48] Speaker 00:
I would say that though, that it is conclusory with respect to the participation of the hotels.

[00:53:54] Speaker 03:
It is conclusive with respect to that's why I'm saying we have this exact same complaint and we put in CEO instead of representative.

[00:54:02] Speaker 03:
It's no longer conclusory.

[00:54:05] Speaker 03:
I think it means sort of a legal conclusion.

[00:54:07] Speaker 03:
It's not factual issue.

[00:54:09] Speaker 00:
I do think that here, especially considering the dinette declaration, which doesn't identify, it says, including.

[00:54:17] Speaker 00:
I understand that.

[00:54:18] Speaker 03:
OK, so it doesn't exclude either.

[00:54:20] Speaker 03:
It doesn't contradict the complaint.

[00:54:21] Speaker 00:
It doesn't exclude it.

[00:54:23] Speaker 00:
But I think if you go to Mr. McCallion's statements here, the inference that he's drawing is what he said last time was that if the hotels were participating in money laundering activities, that the representatives or people from the corporate organization must have had sufficient authority in order to authorize the use of bank accounts.

[00:54:45] Speaker 00:
that's the best information we have.

[00:54:47] Speaker 00:
That was at six minutes last time.

[00:54:50] Speaker 00:
I do think that that is simply an inference that is too attenuated to support personal jurisdiction.

[00:54:57] Speaker 03:
Why?

[00:54:58] Speaker 03:
This is definitely to me.

[00:55:04] Speaker 00:
I think it is too attenuated because it fails to identify any specific facts that actually tie any representative with actual authority from any of these hotels to any of the meetings.

[00:55:14] Speaker 03:
Is someone with authority over finances?

[00:55:19] Speaker 00:
That's not alleged in the complaint, nor is it in the dinette.

[00:55:23] Speaker 03:
I'll let the CEO off the hook.

[00:55:25] Speaker 03:
I'll say someone with authority over finances.

[00:55:31] Speaker 00:
I think it is notable that this theory has come out for the first time at oral argument.

[00:55:37] Speaker 00:
It's not in the complaint.

[00:55:39] Speaker 03:
It's not in the dinette.

[00:55:41] Speaker 03:
I take from your desire not to answer any of my direct questions that you recognize as a pretty tough hill to climb.

[00:55:54] Speaker 03:
My personal jurisdiction dismissal, not 12b6, not summary judgment,

[00:56:01] Speaker 00:
Yes, it would be a much more difficult case.

[00:56:05] Speaker 03:
Okay.

[00:56:06] Speaker 03:
And so if we have a factual allegation about representative that's ambiguous and what that actually means, I get that he did not, the words said today are not in the complaint, but there is an allegation there that if understood one way would be sufficient.

[00:56:25] Speaker 03:
And if another way would not for your connection and notice concerns,

[00:56:31] Speaker 03:
Why isn't that the exact case in which jurisdictional discovery would be appropriate?

[00:56:36] Speaker 03:
We need to figure out.

[00:56:38] Speaker 03:
It's not that there's nothing in the complaint.

[00:56:40] Speaker 03:
There's an allegation there.

[00:56:42] Speaker 03:
There's lots of specificity.

[00:56:44] Speaker 03:
And then there's this description of a representative and understanding factually what that means.

[00:56:53] Speaker 03:
This representative means an agent.

[00:56:55] Speaker 03:
That's someone who can make decisions.

[00:56:58] Speaker 03:
That's a normal understanding of representatives.

[00:57:01] Speaker 03:
And so why isn't that at a minimum something that needs jurisdictional discovery?

[00:57:07] Speaker 00:
So I think when you're approaching the jurisdictional discovery question, the first thing to do is recognize the deference due to the district court and its analysis, putting that aside.

[00:57:19] Speaker 00:
I think here, again, the question is good faith basis, articulable good faith basis.

[00:57:26] Speaker 00:
And I do not believe that plaintiff has articulated a good faith basis for his information belief.

[00:57:32] Speaker 04:
I don't think good faith.

[00:57:33] Speaker 04:
It's plausible, which is an objective standard.

[00:57:37] Speaker 04:
I shy away from embracing any kind of reference to good faith because it implies that you look into the mind of the affiant, and we don't do that.

[00:57:48] Speaker 04:
We require attestation under penalty of perjury, and we look at the objective reasonableness.

[00:57:55] Speaker 04:
And we also have to be careful that we are not playing the role of a trial court or prejudging a complaint, which is mere allegations, as a factual matter.

[00:58:07] Speaker 00:
I agree, Judge Pillard.

[00:58:09] Speaker 00:
I do think that some courts have used the words good faith, which is why I chose them.

[00:58:13] Speaker 00:
But I understand this one.

[00:58:16] Speaker 00:
I understand the desire just to hear to an objective standard.

[00:58:24] Speaker 00:
I think objectively, it doesn't meet the standard.

[00:58:27] Speaker 04:
One of the things that at least the concurrence in Fold talks about is the international law and whether that's really a place to look to inform the personal jurisdiction analysis when as a functional matter under 4K2, we're looking at defendants that are not at home in the United States and therefore don't fall under 4K1.

[00:58:56] Speaker 04:
Have you looked at international laws?

[00:58:58] Speaker 04:
Is there any guidance you can offer us from principles of international law that's at all instructive here?

[00:59:03] Speaker 00:
I think the Charming Betsy canon probably is more instructive for this court's analysis.

[00:59:09] Speaker 00:
I do think that to be- How do you define that canon?

[00:59:14] Speaker 03:
Because I'm having trouble connecting it in the absence of an international law question and answer.

[00:59:18] Speaker 00:
So I think that the court should, and this is, so maybe

[00:59:24] Speaker 00:
using the term Charming Betsy isn't necessary.

[00:59:27] Speaker 00:
I think I point the court really to the US, the United States is brief and full where it talks about the potential for diplomatic backlash, retaliation from other countries.

[00:59:41] Speaker 00:
I think if there

[00:59:43] Speaker 00:
There's a good reason and the court has pointed this out both in fold and prior to be very careful in the world of personal jurisdiction, not to extend things radically into the international sphere.

[00:59:55] Speaker 03:
And so so I think here's here's the concern.

[00:59:58] Speaker 03:
And you know, you tried your constitutional avoidance and that kind of stuff.

[01:00:01] Speaker 03:
But do you agree that if there is no limit?

[01:00:06] Speaker 03:
Let's assume the concurrence were in fact the opinion of the Supreme Court.

[01:00:13] Speaker 03:
Plaintiffs win.

[01:00:20] Speaker 05:
Yes.

[01:00:21] Speaker 03:
All right, then we have to answer that question.

[01:00:23] Speaker 03:
We can't rule against them without saying there's some limit.

[01:00:28] Speaker 00:
I disagree.

[01:00:29] Speaker 00:
I think you can say that Rule 4K2 provides the limit.

[01:00:33] Speaker 03:
Oh, that's where we've had that discussion.

[01:00:36] Speaker 03:
All right.

[01:00:41] Speaker 03:
And one other question.

[01:00:45] Speaker 03:
Does Dorchester doesn't dispute that it has minimum contacts in California if the argument here was that, um, uh, you know, Mr. Gligaroff had a hotel room and, you know, walked out in the hall to get his morning coffee and the floor was all wet from having been washed and now the little triangle sign he slipped and fell.

[01:01:06] Speaker 03:
So yet the Dorchester does have minimum contacts for his hotel operations in California.

[01:01:11] Speaker 03:
Absolutely.

[01:01:12] Speaker 03:
Because 4K2 requires that there not be jurisdiction in any state.

[01:01:23] Speaker 00:
4K2 is applied by this court at least.

[01:01:27] Speaker 00:
uses something of a burden shifting analysis where if, if no, if the defendants do not assert a different district where a jurisdiction would be possible and can concede jurisdiction in that district, then this court proceeds under Rule 4K2.

[01:01:44] Speaker 00:
So we are properly under Rule 4K2.

[01:01:46] Speaker 03:
But it just seems very odd to accept if we all look and know that there's jurisdiction in California.

[01:01:56] Speaker 03:
us just to accept it?

[01:01:58] Speaker 00:
Well, I don't believe that we would concede jurisdiction.

[01:02:00] Speaker 03:
You might want that minimum context test now.

[01:02:04] Speaker 00:
I don't believe that we would concede jurisdiction in California with respect to these claims.

[01:02:11] Speaker 01:
How could there be a difference between, on your view, the

[01:02:19] Speaker 01:
Any contact to the U.S.

[01:02:22] Speaker 01:
with this California hotel thing is going to be in contact with California.

[01:02:28] Speaker 01:
So if we're doing some sort of reasonableness test, do you think that there's sufficient connection to the U.S.?

[01:02:37] Speaker 01:
Why wouldn't there be sufficient connection to California?

[01:02:41] Speaker 00:
Oh, I agree.

[01:02:42] Speaker 00:
Just cats.

[01:02:43] Speaker 00:
If you if you were to if you were to determine that the minimum contacts analysis is satisfied with respect to the United States, I don't think there's any daylight between that and the contacts with California.

[01:03:00] Speaker 03:
Any other questions?

[01:03:05] Speaker 03:
No question.

[01:03:08] Speaker 03:
I think I'm good, thanks.

[01:03:11] Speaker 03:
Thank you, Your Honors.

[01:03:12] Speaker 03:
Thank you very much, Counsel.

[01:03:15] Speaker 03:
Okay, Mr. McHenry, we'll give you two minutes.

[01:03:28] Speaker 02:
Thank you.

[01:03:30] Speaker 02:
With regard to this particular case, which is a civil RICO case, Congress intended

[01:03:37] Speaker 02:
that the statute have a nationwide reach.

[01:03:41] Speaker 02:
And we think this is significant.

[01:03:45] Speaker 02:
And the Northern District of Illinois has already decided in Weinstock versus Islamic Republic of Iran that when Civil Rico and Rule 4K2 is involved, these are relevant

[01:04:03] Speaker 02:
in a post-fold analysis in establishing really a national interest.

[01:04:13] Speaker 02:
And the Civil Rico Statute allows private litigants

[01:04:18] Speaker 02:
really to vindicate public interest, which previously were only available to the U.S.

[01:04:25] Speaker 02:
Attorney's Office and Department of Justice in criminal RICO cases.

[01:04:32] Speaker 02:
So there's a strong public interest in permitting

[01:04:37] Speaker 02:
plaintiffs such as my own to pursue civil RICO cases in the context here as alleged.

[01:04:51] Speaker 02:
And we believe that under really any absolute standard or under

[01:05:00] Speaker 02:
a reasonableness standard.

[01:05:02] Speaker 02:
There's no burden on the defendants here of jurisdiction, but also a strong interest on the part of the plaintiff who has been damaged in his business extensively is U.S.

[01:05:17] Speaker 02:
business.

[01:05:18] Speaker 03:
Do you think there's jurisdiction?

[01:05:22] Speaker 03:
Do they have minimum contact?

[01:05:23] Speaker 03:
Dorchester has minimum contacts with California, Dorchester Group, because of its operating hotels there?

[01:05:31] Speaker 02:
Yes, absolutely.

[01:05:32] Speaker 02:
Extensive minimum contacts.

[01:05:36] Speaker 03:
For all the reasons you've argued about contacts, that includes the activities you allege here.

[01:05:41] Speaker 02:
Correct.

[01:05:44] Speaker 03:
So why didn't you sue in California State Court?

[01:05:47] Speaker 03:
We wouldn't have to be here dealing with... We were asked before if there's another place you could sue.

[01:05:53] Speaker 03:
It seems the obvious place as to Dorchester.

[01:05:57] Speaker 03:
Under your theory of minimum contacts would be California and you can do Rico claims in state court.

[01:06:04] Speaker 02:
I believe you could, but the civil Rico statutes of federal statute and the US district courts have.

[01:06:14] Speaker 02:
have accepted and supported, given the right allegations.

[01:06:22] Speaker 03:
Well, that's been true in federal court in LA.

[01:06:25] Speaker 03:
I mean, the one thing that's just no connection to whatsoever is DC.

[01:06:29] Speaker 03:
But again, I'm still not quite understanding why, if for all the reasons you've argued, you're of the view that there's minimum contacts.

[01:06:37] Speaker 03:
You may think more than minimum contacts in California is a Dorchester group.

[01:06:43] Speaker 03:
that the lawsuit wouldn't have been there.

[01:06:47] Speaker 03:
And the state court, you just have to deal with minimum contacts.

[01:06:52] Speaker 02:
Yeah.

[01:06:52] Speaker 03:
Well, fortunately, you have another forum potential under your theory.

[01:06:57] Speaker 03:
You do have another forum, which would be California state court at a minimum.

[01:07:03] Speaker 02:
It never occurred to us to go to California.

[01:07:08] Speaker 02:
We've always tried, as most plaintiffs, civil record cases in the district courts.

[01:07:13] Speaker 02:
And there are allegations of meetings taking place at the Brunei embassy here in Washington, DC.

[01:07:22] Speaker 02:
So we believe that it's an appropriate case for a DC which has the experience and the familiarity

[01:07:33] Speaker 02:
with the application of the 5th and 14th Amendment analysis to personal jurisdiction in civil RICO cases.

[01:07:48] Speaker 03:
Any other questions?

[01:07:50] Speaker 03:
All right.

[01:07:50] Speaker 03:
Thank you.

[01:07:51] Speaker 03:
Thank you to both counsel.

[01:07:53] Speaker 03:
The case is submitted again.