[00:00:00] Speaker 04:
Good morning.

[00:00:02] Speaker 04:
The first argued case this morning is number 15, 1930, Polar Electric Oil Against American Sports, Winter and Outdoors.

[00:00:10] Speaker 04:
Mr. Moran.

[00:00:14] Speaker 00:
May it please the Court.

[00:00:17] Speaker 00:
The issue here before the Court today is satisfaction of due process under the stream of commerce theory of personal jurisdiction and is controlled by this Court's Beverly Hills fans precedent.

[00:00:28] Speaker 00:
Delaware can exercise personal jurisdiction over Sunto OY because of its direct contacts with Delaware.

[00:00:36] Speaker 00:
Initially, Sunto OY built a U.S.

[00:00:40] Speaker 00:
distribution network expecting that its products reach Delaware.

[00:00:45] Speaker 00:
Through that distribution network, Sunto OY shipped products from Finland to Delaware retailers.

[00:00:55] Speaker 03:
The other side would say that it was really ASWO that's handling all the sales, all the marketing, all the attempts to commercialize Sunto's products in the United States, right?

[00:01:09] Speaker 03:
And so Sunto just left that up to ASWO.

[00:01:15] Speaker 03:
What's wrong with that characterization?

[00:01:18] Speaker 00:
It doesn't erase the fact that Sunto OY in Finland receives orders from its US distributor

[00:01:25] Speaker 00:
places the infringing products in boxes, puts labels on the boxes, and has FedEx deliver it to Delaware retailers.

[00:01:34] Speaker 00:
That's a direct action from Finland to Delaware, shipping products to Delaware.

[00:01:40] Speaker 00:
Yes, Oswald, the U.S.

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distributor, has a large part, which is expected, in a U.S.

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distributor.

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It also helps with the website, but there's undoubtedly

[00:01:52] Speaker 00:
Suunto owns its website and holds itself out to the world as having Delaware retailers and ships infringing products from Finland to Delaware.

[00:02:07] Speaker 00:
Some of the issues with respect to title passing.

[00:02:10] Speaker 03:
When you say Suunto ships it to Delaware,

[00:02:16] Speaker 03:
Can you break that down a little bit more for me?

[00:02:19] Speaker 03:
What happens?

[00:02:20] Speaker 03:
Sunto is sitting there in Finland and then it gets contacted by, what do we call it, ASWO?

[00:02:27] Speaker 03:
Yes, your honor.

[00:02:28] Speaker 03:
All right, ASWO.

[00:02:29] Speaker 03:
ASWO notifies Sunto in Finland that somebody in Delaware, some retailer in Delaware needs a shipment of these products and then gives

[00:02:44] Speaker 03:
send to the address of the retailer, and then what happens?

[00:02:50] Speaker 00:
You're correct in that, that the order is received in Finland from Oslo.

[00:02:55] Speaker 00:
The address is given to Finland to where to ship it.

[00:03:00] Speaker 00:
The process, their standard order process is listed in testimony during jurisdictional discovery.

[00:03:09] Speaker 00:
Received in Finland,

[00:03:12] Speaker 00:
Suntory takes product, in this case the infringing product or alleged infringing product, puts it in boxes, gets the Delaware address, makes a label, puts it on the box, and then has, for example, FedEx or some other carrier deliver it to the Delaware retailer.

[00:03:32] Speaker 03:
And who's paying FedEx right there, then and there?

[00:03:35] Speaker 00:
As the discovery indicated, the OSWAL pays for the delivery.

[00:03:41] Speaker 00:
But it does not negate

[00:03:42] Speaker 00:
the actual physical act of Finland, Suunto Finland, shipping products to Delaware, nor does it negate the fact that Suunto advertises itself to the world as having Delaware retailers.

[00:03:57] Speaker 00:
In addition to those contacts, through its terms and conditions on the website, Suunto OY has ongoing data privacy obligations to customers.

[00:04:08] Speaker 00:
Those data privacy obligations arise

[00:04:11] Speaker 00:
through customers' purchasing products on the website.

[00:04:17] Speaker 00:
And I refer the court to Joint Appendix 134, where it clearly identifies the controller of your, the user of the website, personal data and contact information is Suunto in Finland.

[00:04:34] Speaker 00:
So Suunto has ongoing data

[00:04:37] Speaker 00:
privacy obligations to the customer information, for example, financial information, credit cards.

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There would be no issue that if there was a data breach by virtue of that obligation, they would be liable.

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So they have ongoing data privacy obligations to Delaware customers.

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And lastly, there's the issue of warranties provided by Sunto OY.

[00:05:02] Speaker 00:
The Oswald US retailer or distributor

[00:05:06] Speaker 00:
is responsible under the distribution agreement for local maintenance and technical support to customers in the United States.

[00:05:16] Speaker 00:
But through the actual warranty obligation, not implementation, and the testimony below clarified that it was the repair and replacement logistics that the local distributor undertook to perform.

[00:05:37] Speaker 00:
On that record of the agreement, the shipping of product to Delaware, the data privacy obligations, and the ongoing warranty obligations, Sunta Ola satisfies all articulated standards of the Supreme Court's as well as this court's stream of commerce jurisprudence.

[00:05:56] Speaker 03:
Getting back to the warranty, it sounded like it's ASWO that handles repair and replacement.

[00:06:03] Speaker 00:
That's correct.

[00:06:04] Speaker 03:
So then when you say that

[00:06:07] Speaker 03:
Santo has a relationship with all US customers, including Delaware customers, through a warranty obligation.

[00:06:15] Speaker 03:
As a functional matter, I don't see a connection that Santo really has in serving some theoretical warranty obligation.

[00:06:25] Speaker 03:
What is the tangible contact or relationship that Santo really has under what you're calling a warranty obligation, if it's ASWO that really is doing

[00:06:34] Speaker 03:
and responsible for all the repair and replacement?

[00:06:37] Speaker 00:
There are two items, Your Honor.

[00:06:39] Speaker 00:
Firstly, the actual separating the obligation to satisfy customers' demands rests on Suunto in Finland.

[00:06:49] Speaker 00:
The implementation of that obligation is, as Your Honor has recognized, through the local distributor and by providing the technical details that it's contracted with Suunto OY

[00:07:03] Speaker 00:
to provide, so that separating the logistics and the legal obligation into two separate areas.

[00:07:13] Speaker 00:
And you're right, the logistics are within the US distributor as provided by the contract, distribution contract, and the legal obligation rests with the parent.

[00:07:26] Speaker 00:
And that was clarified by the testimony of witnesses below where they

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correctly or they identified performing the repair services and replacement services that you identified properly with the U.S.

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distributor.

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Another issue is that as the case is presented to the court here, it's incumbent upon Polar to provide a prima facie of showing of personal jurisdiction under that standard

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Any factual disputes, such as, for example, warranty, would be resolved in favor of polar.

[00:08:07] Speaker 00:
So it's polar's position that on this record, as I said, all articulated standards of the Supreme Court's jurisprudence, including the additional or something more conduct, as we just discussed, there is no question that the products here do not

[00:08:26] Speaker 00:
simply fortuitously reach Delaware through some stream of commerce ebbs and flows.

[00:08:32] Speaker 00:
They all directly result from Suntory intentionally utilizing its distribution network to service US and Delaware in particular.

[00:08:45] Speaker 01:
Mr. Moran, there are a lot of cases relevant here.

[00:08:48] Speaker 01:
And one of them is McIntyre.

[00:08:54] Speaker 01:
We held, I guess, it is in AFTG that McIntyre didn't change the law.

[00:09:02] Speaker 01:
But what about Asahi?

[00:09:04] Speaker 01:
That was a Supreme Court decision.

[00:09:07] Speaker 00:
The issues there, Asahi did not change the jurisprudence stream of commerce.

[00:09:21] Speaker 00:
Nobody has yet established a choice between your Connor something more or Brennan simply putting the product in the stream of commerce.

[00:09:33] Speaker 00:
This court does not need to make a choice in this particular case because there is well more than something more of shipping, data privacy, warranty,

[00:09:46] Speaker 01:
Well, wasn't that what Beverly Hills said?

[00:09:49] Speaker 01:
They didn't need to make a choice either.

[00:09:52] Speaker 00:
Yes, Your Honor.

[00:09:53] Speaker 00:
And that's our position that we would respect for request because the product.

[00:09:58] Speaker 00:
So we don't need to make a choice?

[00:10:00] Speaker 00:
No, this court does not need to.

[00:10:01] Speaker 00:
On this record, a choice does not need to be made because of the additional conduct of shipping product, having the data privacy obligations, holding itself out to the world as having Delaware retailers.

[00:10:15] Speaker 00:
My point, just to illustrate that, is that to JA108 is a screenshot of their website identifying Delaware retailers.

[00:10:26] Speaker 00:
And the retailers are to whom they ship from Finland.

[00:10:30] Speaker 00:
And we would request that the court, on this record, reverse the district court's dismissal of the case based on a lack of personal jurisdiction.

[00:10:42] Speaker 03:
How many retailers are there?

[00:10:45] Speaker 00:
Looks like there's... I know, Your Honor, I'm out of my time for here, but I'm glad to answer your questions if you want me to.

[00:10:53] Speaker 03:
Yeah.

[00:10:54] Speaker 03:
I mean, I thought there were three, but now in here it looks like there's more than three.

[00:10:58] Speaker 00:
At the time of this web shot was 2, 24, 12, 1, 2, 3, 4, 5.

[00:11:05] Speaker 00:
There were five Delaware retailers.

[00:11:08] Speaker 03:
I know you're into your rebuttal, but could you say something a little bit about the Delaware long arm statute and what we're supposed to do?

[00:11:14] Speaker 03:
There's a statute, and yet it appears to be there are a collection of Delaware court decisions that seem to put a gloss on that statute with this dual jurisdiction theory.

[00:11:26] Speaker 00:
Quickly, Your Honor, the Delaware cases, there are Delaware state law cases, and there are some district court cases.

[00:11:33] Speaker 00:
There is a uniform, or what we'll call it, the weight of authority all applies to the

[00:11:38] Speaker 00:
the basic boom case, which looks at dual jurisdiction and then requires that there be an intent to serve, as we outlined this morning and in our brief, and that the accused products give rise to the cross-batch.

[00:11:52] Speaker 03:
But why could the courts create what I would call a fifth subsection to the long-arm statute?

[00:12:00] Speaker 03:
There were four subsections on ways to establish jurisdiction, and now there's

[00:12:07] Speaker 03:
the courts appeared to have created essentially a fifth one.

[00:12:11] Speaker 03:
And we're all calling it a dual jurisdiction theory.

[00:12:14] Speaker 00:
Well, we are today and the Delaware state courts the same.

[00:12:18] Speaker 00:
But the policy behind the dual jurisdiction was expressed in the Boone decision in Delaware is to address commerce as it existed in today's world.

[00:12:37] Speaker 00:
They grappled with the issue of how do you fit today's commerce into the four sections and develop the dual jurisdiction theory, which is a district court.

[00:12:46] Speaker 00:
In this case, it mentioned has been before, or the Supreme Court of Delaware has had multiple opportunities to say it, to rebuke it has not.

[00:12:59] Speaker 00:
And this court in its, was a commission area, the energy of Tamanique looked at the same statute.

[00:13:06] Speaker 00:
at that time, had two questions of whether it went to full sentence of the due process and whether intent required.

[00:13:12] Speaker 00:
This court need not address either of those two questions, because the facts of this case definitely illustrate intent to serve, as well as all articulated standards of the Supreme Court's jurisprudence of due process under the stream of commerce.

[00:13:29] Speaker 04:
Does that answer your question?

[00:13:31] Speaker 04:
We'll save you rebuttal time, Mr. Davis.

[00:13:33] Speaker 04:
Thank you.

[00:13:35] Speaker 04:
Mr. Key?

[00:13:39] Speaker 02:
Morning.

[00:13:45] Speaker 02:
The record in this case does not support the exercise of jurisdiction over Sinta Oye.

[00:13:51] Speaker 02:
The record in this case is extensive.

[00:13:55] Speaker 02:
Polar takes great liberties with the record in this case, as the district court noted, that Polar repeatedly attempted to obscure the facts between what Sinta Oye did and what Oswald did.

[00:14:10] Speaker 02:
There is nothing in the record that states that under the distribution agreement, Sunto is required to ship products to the US.

[00:14:19] Speaker 02:
That is what I would call a polar fiction.

[00:14:21] Speaker 02:
The record is very clear, even the citations to the record.

[00:14:24] Speaker 03:
The distribution agreement has a provision where Sunto is going to provide outbound logistics.

[00:14:31] Speaker 03:
And when you look at that provision, it does look like it reflects what the discovery

[00:14:39] Speaker 03:
reflected, which is they've got to put all of it together.

[00:14:42] Speaker 03:
They're the ones that are responsible for getting the shipping labels on the boxes.

[00:14:47] Speaker 03:
And they know, or I guess you, you know where these products are going into the United States.

[00:14:55] Speaker 03:
You have the destination address.

[00:14:57] Speaker 03:
You know it's going to the detail through the retailer in Newark or Dover, Delaware.

[00:15:04] Speaker 02:
The distribution agreement does provide that if Oswald wants

[00:15:08] Speaker 02:
Oswald can use the Suunto outbound logistics, but the record does not support that in this case.

[00:15:15] Speaker 02:
What the record testimony of this case from Mark Taylor, who's the president of Oswald, indicated is that Oswald specifically arranged for all shipping to destinations only Oswald chose, that Oswald took title in Finland after title passed to an intermediary armor company, and Oswald

[00:15:37] Speaker 02:
had those products shipped itself into the U.S.

[00:15:40] Speaker 03:
You're not saying Oswald went into Santo's factory and collected up the product and then physically put the product into boxes and then put the shipping labels onto the boxes and then took them out of Santo's factory and through FedEx mailed them to Delaware.

[00:16:01] Speaker 03:
You're not saying that.

[00:16:02] Speaker 02:
No, Your Honor.

[00:16:04] Speaker 03:
Santo's doing everything

[00:16:06] Speaker 03:
is doing all of that, except for the fact that it's being informed by Aswo as to what the destination address should be written into the shipping label, right?

[00:16:21] Speaker 02:
Am I right or am I wrong?

[00:16:23] Speaker 02:
Yes, you are right that Sunto packages the products.

[00:16:27] Speaker 02:
Correct.

[00:16:28] Speaker 02:
Aswo determines where they are going.

[00:16:30] Speaker 02:
Aswo takes the risk of title.

[00:16:32] Speaker 02:
Aswo pays for the shipping.

[00:16:34] Speaker 02:
and only Oswo determines where those products are going to go.

[00:16:38] Speaker 02:
In this case, some of the products went by Oswo to Delaware.

[00:16:44] Speaker 02:
There are only two retail stores in Delaware that sell the accused products.

[00:16:50] Speaker 02:
There are 12 accused products here.

[00:16:52] Speaker 02:
There may be five retail outlets, but only two, according to the record, have these sales.

[00:16:58] Speaker 02:
Of those two, we're talking about less than, on average, one watch a month.

[00:17:04] Speaker 02:
per store.

[00:17:05] Speaker 02:
That is not substantial sales.

[00:17:08] Speaker 03:
Under the... George Sleet didn't mention the Beverly Hills fan decision at all.

[00:17:14] Speaker 03:
What are we to make of that?

[00:17:16] Speaker 03:
Because when you look at the facts of Beverly Hills fan, which we're bound by, as we reiterated in AFTG, the facts there look pretty similar to the facts here.

[00:17:29] Speaker 03:
There were only 52 fans.

[00:17:31] Speaker 03:
in those in Virginia that was known on the record.

[00:17:36] Speaker 03:
And that was deemed to be enough.

[00:17:38] Speaker 03:
Here we have double that.

[00:17:41] Speaker 02:
I would assert, Your Honor, that Beverly Hills fan is far different for a couple of key reasons.

[00:17:46] Speaker 02:
In Beverly Hills fan, the complaint specifically alleged that the foreign company was selling and shipping into the jurisdiction.

[00:17:55] Speaker 02:
In this case, the complaint paragraph six has a formula.

[00:18:00] Speaker 02:
Not facts.

[00:18:02] Speaker 02:
It states only that Sunto Oswo and First Beat have established minimum contacts.

[00:18:08] Speaker 02:
There are no facts.

[00:18:09] Speaker 04:
But there's a direct shipment, is there not?

[00:18:12] Speaker 04:
Or in the case in which there is a direct shipment from Finland to the retailer, and title would pass in Finland, would it not?

[00:18:20] Speaker 02:
Title passes in Finland to Oswo.

[00:18:22] Speaker 04:
And what is the path of remedy in that case?

[00:18:25] Speaker 04:
Is it still only the distributor that had no

[00:18:29] Speaker 04:
role in the distribution?

[00:18:32] Speaker 02:
It is only Oswald who is directing the sales in this case.

[00:18:36] Speaker 02:
In Beverly Hills Fan, it was specifically found that the foreign company and the U.S.

[00:18:42] Speaker 02:
distributor worked in consort.

[00:18:44] Speaker 02:
There was a specific finding there.

[00:18:46] Speaker 02:
There is no such fact or record in this case which makes us different from Beverly Hills Fan.

[00:18:53] Speaker 03:
But what about the distribution agreement?

[00:18:55] Speaker 03:
Why doesn't the distribution agreement

[00:18:57] Speaker 03:
between Sunto and Aswo here, who are sister companies by the way, represent the creation of a distribution channel into the United States with the understanding that Sunto is going to be handling the front end of that distribution channel, i.e.

[00:19:19] Speaker 03:
the outbound logistics to get the product out of Finland and into the United States and then through a mix of

[00:19:27] Speaker 03:
the website that Suntow hosts that lists the Delaware retailers where the product is available as well as handling those outbound logistics for product it knows is going to Delaware among other places.

[00:19:43] Speaker 03:
Why isn't that enough to represent that these two companies are working as partners in consort to create this distribution channel where

[00:19:57] Speaker 03:
Suntow knows that the products are going into Delaware among other places.

[00:20:03] Speaker 02:
Because the record doesn't support it, Your Honor.

[00:20:05] Speaker 03:
What the record supports is... What was in my summary that is not in the record?

[00:20:12] Speaker 02:
Oswald solely is responsible for any e-commerce sales.

[00:20:16] Speaker 02:
Suntow may have a website, but Oswald pays Suntow a fee in order to have a link

[00:20:23] Speaker 02:
to a separate e-commerce site that only Oso operates, only Oso conducts sales through.

[00:20:29] Speaker 03:
But to get to that site, you've got to go through Sunto's site that Sunto hosts.

[00:20:35] Speaker 03:
Am I right?

[00:20:36] Speaker 02:
Yes, correct.

[00:20:37] Speaker 02:
That is correct.

[00:20:38] Speaker 02:
But Sunto does not make a sale.

[00:20:40] Speaker 02:
Only Oso does at a separate website.

[00:20:43] Speaker 02:
The record is clear.

[00:20:46] Speaker 02:
The dealer locator that lists places in the U.S.

[00:20:49] Speaker 02:
for purchase is only

[00:20:52] Speaker 02:
maintained by Oswald, not by Sinto.

[00:20:54] Speaker 02:
Sinto has no knowledge of it, and the record reflects that in this case.

[00:21:00] Speaker 02:
One of the decisions in this case, this court, Selgard in 2015, indicated that jurisdiction can't be imputed from the activities of one back to another through agency, without specific proof of agency.

[00:21:16] Speaker 02:
And that proof of agency is not here in this case.

[00:21:21] Speaker 04:
This case, if there is a defective product, what is the path of remedy in your position only to the distributor who had no hand in either the manufacturer or the shipment or anything else?

[00:21:35] Speaker 02:
It would be through Oswald or Polar was free to sue in Utah where Sonto has contacts, which was established in the lower court.

[00:21:51] Speaker 03:
Just to follow up on Judge Newman's question, when there's a broken heart monitor, how does that broken product get replaced or repaired?

[00:22:06] Speaker 02:
OSWO is 100% responsible for the warranty.

[00:22:09] Speaker 03:
Right, but how does then OSWO take care of the issue?

[00:22:14] Speaker 03:
It probably calls up you, Santo, right?

[00:22:17] Speaker 02:
No.

[00:22:17] Speaker 03:
The consumer... It does the repair or replacement itself?

[00:22:20] Speaker 03:
Correct.

[00:22:22] Speaker 03:
How would Aswo do a replacement of the Santo product on its own without any help or assistance from Santo?

[00:22:31] Speaker 02:
Aswo has the capability to repair, maintain, and replace broken products.

[00:22:38] Speaker 02:
And the record is clear on this.

[00:22:39] Speaker 03:
But could you explain how it would

[00:22:42] Speaker 03:
Replace a new product or a defective Santo product with one of its own products?

[00:22:50] Speaker 02:
OZO has a cache of products.

[00:22:52] Speaker 02:
If your watch breaks, you contact OZO and OZO either repairs it, you ship it to OZO for repair, or if it can't be repaired, OZO replaces the product.

[00:23:04] Speaker 03:
So it has some of Santo's products in its possession in a back room somewhere.

[00:23:11] Speaker 02:
Of course.

[00:23:12] Speaker 02:
The Supreme Court in Asahi, Judge O'Connor's opinion, was that in the stream of commerce, it requires more than simply releasing a product into the stream of commerce.

[00:23:32] Speaker 02:
That's not enough.

[00:23:33] Speaker 02:
There has to be something intentional, something that purposely avails

[00:23:40] Speaker 02:
of the privileges of doing business in the state.

[00:23:44] Speaker 01:
How many justices did Justice O'Connor write?

[00:23:48] Speaker 02:
It was a plurality, Your Honor.

[00:23:50] Speaker 02:
But in this court and the Federal Circuit in Commissariat versus Chi-Mei, this court recognized O'Connor's test in Asahi and had remanded for discovery to see if the O'Connor test was passed.

[00:24:07] Speaker 02:
In Delaware, under this dual jurisdiction theory,

[00:24:10] Speaker 02:
The Boone case on which Polar relies on so much also recognized that O'Connor's decision in Asahi was the law of Delaware.

[00:24:21] Speaker 02:
And in that case, it relied on general jurisdiction.

[00:24:24] Speaker 02:
The Boone case of dual jurisdiction was a case in which the foreign manufacturer was shipping 50,000 tons of asbestos a month over 10 years into Delaware.

[00:24:35] Speaker 02:
And they found general jurisdiction.

[00:24:38] Speaker 02:
This is a case where there's not substantial revenue.

[00:24:40] Speaker 02:
We're talking about less than one watch per store per month.

[00:24:45] Speaker 04:
So to understand, are you proposing that there is a clear line whereby whenever there is a US distributor, the foreign manufacturer, supplier, shipper, source is never subject to jurisdiction?

[00:25:02] Speaker 02:
Your honor, I'm only suggesting the facts of this case.

[00:25:06] Speaker 02:
do not support jurisdiction under any of the decisions of this court or the Supreme Court.

[00:25:12] Speaker 02:
I'm not suggesting a widespread rule.

[00:25:15] Speaker 02:
I'm not expressing a change in the law.

[00:25:18] Speaker 02:
I'm simply advocating that this court follow its own precedent, follow Asahi, follow Burger King.

[00:25:26] Speaker 02:
The purposeful availment test can't be met here.

[00:25:32] Speaker 04:
Thank you.

[00:25:32] Speaker 04:
Okay, but I'm thinking that the fact that

[00:25:34] Speaker 04:
of this case include direct shipments to the retailer, the receipt of orders directly from the retailer, not going through the distributor.

[00:25:45] Speaker 02:
That's, those are, I'm sorry, I don't understand, those are facts.

[00:25:48] Speaker 04:
Is that incorrect?

[00:25:49] Speaker 02:
The facts in this case are not that the retailer makes orders to Suunto, or that Suunto is shipping to the retailer.

[00:25:59] Speaker 04:
All right, so let me ask you a hypothetical.

[00:26:01] Speaker 02:
Yes.

[00:26:01] Speaker 04:
Let's just suppose that the retailer likes the product

[00:26:04] Speaker 04:
says I'll order some more, don't bother with the distributor, and contact Synto directly.

[00:26:10] Speaker 04:
Would your argument then differ?

[00:26:14] Speaker 02:
In that instance, Your Honor, you would have direct contact between the foreign company and the state.

[00:26:20] Speaker 02:
That would be a very different scenario.

[00:26:23] Speaker 04:
But you're telling us that there is a direct warranty in, I suppose, the sales terms that does not amount to a direct contact, even though you tell us that

[00:26:35] Speaker 04:
Sunto would honor the warranty?

[00:26:37] Speaker 02:
The record establishes that the warranty is by Oswald, not by Sunto.

[00:26:42] Speaker 02:
Oswald issues the warranties for all sales in the U.S.

[00:26:47] Speaker 02:
and honors the warranties for all sales in the U.S.

[00:26:50] Speaker 02:
Oswald, the distributor, does.

[00:26:53] Speaker 04:
Okay, so that the sales terms, even though there's a direct shipment from Finland to the U.S.

[00:26:58] Speaker 04:
retailer, does not include a warranty of

[00:27:03] Speaker 04:
whatever might accompany a normal sales transaction.

[00:27:07] Speaker 02:
The warranty and the shipment both are by Oswo in this instance.

[00:27:13] Speaker 03:
When you say that Oswo is doing the shipping of the product to the Delaware retailer, how is that possible when Oswo is not the one in Finland that the only people in Finland are Santo and then

[00:27:33] Speaker 03:
FedEx when they come to pick up the product off of Sento's dock?

[00:27:39] Speaker 02:
Because the company that brings the stuff over is doing so for Oswald.

[00:27:44] Speaker 02:
Obviously Oswald isn't taking a flight, picking up things and bringing them back to the US, nor is Sento taking a flight with things and bringing them to the US.

[00:27:54] Speaker 02:
There is an intermediary like FedEx whom Oswald contracts with for the shipments.

[00:28:03] Speaker 03:
And I know you are in favor of Judge Sleat's opinion to the extent that Judge Sleat found that Polar or Santo didn't meet minimum contacts under constitutional due process.

[00:28:21] Speaker 03:
But what in your view was wrong with Judge Sleat's view on the Delaware long arm statute in finding that Santo did

[00:28:33] Speaker 03:
meet the dual jurisdiction theory.

[00:28:35] Speaker 03:
I'm running out of time.

[00:28:36] Speaker 03:
Can I?

[00:28:37] Speaker 03:
Yeah, quickly.

[00:28:40] Speaker 02:
The problem with that finding is under this dual jurisdiction theory, the second prong of it requires a finding of general jurisdiction, not specific jurisdiction, general jurisdiction.

[00:28:53] Speaker 02:
And there's no facts to support general jurisdiction here.

[00:28:57] Speaker 02:
And Polar has not advocated general jurisdiction.

[00:29:00] Speaker 02:
So that's a failure in the finding of dual jurisdiction in this case.

[00:29:07] Speaker 04:
Thank you.

[00:29:16] Speaker 00:
This case is not a general jurisdiction case.

[00:29:18] Speaker 00:
It's a stream of commerce specific jurisdiction case.

[00:29:21] Speaker 03:
But just getting to your opposing counsel's point, can you explain what, if anything, is wrong in his statement that for the second part of the dual jurisdiction theory to be satisfied, you have to meet some general jurisdiction requirement?

[00:29:40] Speaker 03:
Is that right or is that wrong?

[00:29:42] Speaker 00:
There are a number of things wrong with it.

[00:29:44] Speaker 00:
One, it's not what the Boone case held.

[00:29:46] Speaker 00:
In fact, the Boone case specifically said that you have to be very careful in not placing more weight on one factor or another factor.

[00:29:55] Speaker 00:
And then it went on to enunciate how to evaluate the factors under its new dual jurisdiction, as this court already recognized in its previous commission area, a Tomeni case, that the intent

[00:30:09] Speaker 00:
is one factor, tend to serve Delaware.

[00:30:12] Speaker 00:
And then does the case arise from the accused product being in the forum?

[00:30:18] Speaker 00:
And then as we discussed earlier at my first part of my statement, both of those are satisfied here.

[00:30:26] Speaker 00:
The fact that general jurisdiction is mentioned, as the counsel said, is given.

[00:30:33] Speaker 00:
But as I said, the first part is it doesn't fit with

[00:30:37] Speaker 00:
And second, it's inherently contradictory.

[00:30:41] Speaker 00:
If the requirement was that somebody had to demonstrate general jurisdiction, then you wouldn't need dual jurisdiction at all because you've satisfied dual jurisdiction.

[00:30:50] Speaker 00:
So inherently, it conflicts with the existence of dual jurisdiction.

[00:30:57] Speaker 00:
With that, if you have any more questions, I'd be glad to answer them, but I have nothing further.

[00:31:02] Speaker 04:
Yes.

[00:31:03] Speaker 04:
What are the consequences of this case for your

[00:31:06] Speaker 04:
for Polar.

[00:31:07] Speaker 04:
There are two Finnish entities attempting to litigate against each other in the United States courts.

[00:31:16] Speaker 04:
Has there been injury, liability to your client that is not subject to compensation by the distributor, as we've been told?

[00:31:30] Speaker 00:
Let's assume for a moment that the case goes forward in a forum.

[00:31:34] Speaker 00:
As I understand, your question would our client, Polar, get full satisfaction from the distributor?

[00:31:47] Speaker 00:
Yes.

[00:31:50] Speaker 00:
It's not clear, but in damages aspect, perhaps yes.

[00:31:54] Speaker 00:
In discovery, perhaps no, because it's a foreign person, foreign entity is not part of the case.

[00:31:59] Speaker 00:
And there's another defendant that's not part of this appeal.

[00:32:03] Speaker 00:
in the Delaware case that's part of this infringement action.

[00:32:08] Speaker 00:
And then there's the issue of a potential injunction.

[00:32:12] Speaker 00:
So that if there was injunction against the US distributor, does not prevent the foreign entity from using a different entry to the United States or direct entry.

[00:32:24] Speaker 00:
So that there is financially for past damages perhaps, and I haven't investigated thoroughly,

[00:32:33] Speaker 00:
satisfaction, but not in terms of equitable relief at a trial court.

[00:32:37] Speaker 00:
No, Your Honor.

[00:32:40] Speaker 00:
Okay.

[00:32:41] Speaker 04:
Any more questions for Mr. Moran?

[00:32:44] Speaker 03:
Your opposing counsel brought up cell guard.

[00:32:47] Speaker 03:
Do you see this case as a stream of commerce theory case or an agency theory case?

[00:32:53] Speaker 00:
Agency is not part of our argument here, Your Honor.

[00:33:00] Speaker 04:
Okay.

[00:33:01] Speaker 04:
Okay.

[00:33:01] Speaker 04:
Thank you, Mr. Moran.

[00:33:02] Speaker 04:
Thank you.

[00:33:03] Speaker 04:
Mr. Cabe's case is taken under submission.