a part of their service or product for free to potential users of their website in hopes that some number of those people will sign up for the premium version of the website  the issue here is when a person is used for that purpose when it when a stock analyst is used for that purpose whether she may hail the defendant into court on grounds of purposeful appendix page ten of it's opinion the court says to prank subscription service is an ancillary feature on its website which primarily serves to provide information that's just not true to pranks is a for profit company they are trying to get people to sign up for the subscription service there is nothing ancillary about it central business model and you know there's some there's some questions that that have to be answered in this case for example if it were simply that they were putting useful information out there as to who the who the best stock analysts were why wouldn't they just limit that to the best thirty analysts out of you know  that particular analyst is the only people that care about that right and where do those people disproportionately live they just proportionately live in massachusetts where the animals lives the i mean i think the people most likely most interested in her analysis are probably her potential employers in massachusetts but also you know friends of hers her or her colleagues but some someone far away is not is not going to be interested at all i meant to ask if i could reserve a couple of minutes at the end of my argument for rebuttal and move on to do that now yes you can have two minutes but we'll subtract the time from your remaining time on your main argument that's just fine i appreciate it sorry about that you know well what i leave it there is if there are any questions i'm sure you've read the papers and heard of i may have something you want to ask me you know just following up on your point that potential employers located in massachusetts  through i understand that correctly that's correct in this case how many employers would that be what is the universe and employers would have been able were employed here well in that in the paper she says she applied for over one hundred jobs and i have you know a record available the defendant of a number of those jobs that she applied for and so i would say was probably about one hundred i mean if she's my clients i think that she probably would have it as that any business but some of those businesses may not have hired her because they had a better candidate but i think the record of this case shows that that she has a great resume and she she went a columbia for business school she's a specialist in biotech companies and after the ranking was removed she got a job offer like within a month but is there any evidence in the specific jurisdiction record that any of those prospective employers saw this website well i'll say no there's no specific evidence of specific employers at this motion to website because of the fact that she tried for months to get a job and then only when it was removed she was able to get a job immediately you know within a month because we have to have the inferences drawn in our favor i think that's sufficient to clear that hurdle at least when you're facing a motion to dismiss head two questions for you one is about the long arm statute and one we conclude up a personal jurisdiction to be supported based upon a defamatory internet communication originating outside of massachusetts but the defamatory act to be considered as having occurred in massachusetts for the purposes of section three court must wind up the massachusetts resident harms was specifically targeted the publisher knew that such person lived in massachusetts and the defendant intended to harm that individual's reputation in massachusetts now the  nd part of that the public your knew that such person lived in massachusetts there's just no evidence to support that position i think you even have conceded so i'm just struggling how you can within the long arm statute if if walker vs adams it is controlling and i don't really see why it wouldn't be if it's a massive hell of court decision interpreting three say i think three and a and three d also support jurisdiction and i only have to clear the tort did occur in massachusetts with respect to specifically targeting i would say this i mean that the facts are that case not withstanding that there was a commercial purpose here in t use of cheney's name they wanted those people connected to cheney to buy their service and that commercial purpose i think is material and finding  if i'm understanding you you're not disputing that there is no evidence to suggest or even an allegation that they knew she was in massachusetts that that's correct but there's also no evidence that they used a p h p script to block access to the website massachusetts there's no evidence that they put a disclaimer and said if any analyst is located in massachusetts this is erroneous i mean they had a way of protecting themselves they didn't they didn't do that whe you saying that because of that we could find that they did know she was in massachusetts i'm saying that they specifically targeted her wherever she was with the purpose of soliciting her potential  process part of it the question i had is what are we supposed to do about the language and walden versus fiore which relies on kalter it suggests that it's not enough there still is a possibility or jurisdiction in that locale and i'm just wondering what what authority you have that we should rely on because calder doesn't say that and walden doesn't say that so i'm just not seeing a case that does the certain extent you know that case was an anachronism i mean there there there's going to be websites that do this right there's already been jerked out come i think we cited it in our briefs i think you should read it jurisdiction could light is she now moved to tennessee are they now live bill in tennessee if she is located in boston and she's applying for jobs only in hawaii are they labile for having jurisdiction in hawaii because that's where she's trying to get her new job you see something like what how i get the point that logically it should travel with her to some extent but does that what is the limit on that or is the limit just where she wants to where she takes action that makes the reputational harm to her most acute that's a great question and i think i would say it probably stays  in the forum that she is when she where she is most harmed there's a there's a piece obviously on the other side of the potential coyer that could be on her but for the mistaken information they taint from this website they also have a stake and those employers also should have that that's not to say that they're you know going to receive damages in this lawsuit but for the purposes of jurisdiction we want to make sure that there's fairness for everybody concerned and by protecting herself from this kind of defamatory circumstance misled and also protects those employers who would hire and so i suppose for that reason you would have to do it in a kind of affects test i don't think it would be an appropriate location for jurisdiction if she never applied for a job there but if i did i think there would have to be you know effect tauriel test that looked into the effect on the form of the of the damage to the to the party asserting specific jurisdiction based upon the commercial defamatory conduct and i just wanted to ask one of the you know any website maintaining defendant i think there is not a serious risk because this website does something unique to stink from chen and distinct from the connecticut newspaper case in that  it trades on cheney's good name you know a good name something we should all value and i think it's reasonable that if you're going to trade on someone's good name for your freemium business that you should expect to be found where they are we cannot use other people to sell our products and then he say well we don't live there and escape jurisdiction if we say something untruthful now so you would agree that  i think that's correct yes so under due process there are a number of different elements and factors one is and you referenced it in that that is purposeful of element and the  subscription services it is not the subscription services portion of the website is not ancillary i would agree i think with the district court's finding if someone had as a  hobby decided to rank every analyst based on software they had developed and they did not have a commercial purpose for that necessarily but what brings the purposeful of ailment here was the hope that the use of her profile would encourage people to purchase their services are you familiar with the clicks or versus clicks or international versus that and i think that that supports our case i think that the the most useful case for the court to review is the health grades case which is a district court opinion it's the case most analogous to the fact that physicians and you know the physicians practice group said hey wait a minute you've given us a low rating that we don't deserve and i just want it clear that's that's different this case is different then you know for example yelp some consumer comes on and makes a rating and just uses the yelp platform that's very different from the website itself or firm it really making the rating and saying this is based on objective factors she didn't rate stocks that they're saying are the says that's on page thirty want to excuse me he says we didn't obtain derive substantial revenue from massachusetts i don't i don't know what that means i don't know very much about the size of their business there's two different things that are going on there's the question of the premium service exist and is it just ancillary which i understand your object in how the just a court assess that i read the district were also to be focused on the fact that there's nothing indicating it was focused on massachusetts that there any evidence that bears on that with respect to the premium service i take it you were saying earlier there was no evidence to indicate in the record that the defendant knew that the pla in massachusetts at any point is there anything so i guess you're saying we can read into the app of david by tip ranks that they did some business with the subscription model in massachusetts correct and you know a number of their other analysts are located in massachusetts i think the number one analyst they rate is a massachusetts based which is not directly targeted at massachusetts it's merely targeted to the world at large including massachusetts it happens to be that plate this was at one point located in the commonwealth but that doesn't it was not a defamation case but there were more so if that is the thing as opposed you have a business model which says the following this person is a tad terrible analysts and wherever she is the community that's around her should know how terrible she is your position would be there's no jurisdiction anywhere but israel for that right well i think that the walton case says that there has to be more contact with jurisdiction and your position is that you could have a website that says just one person when she's terrible see the terrible and was don't hire her wherever she is employers in that community don't hire her and she could only see you in israel yeah i think what we wrote at the end of the of the of the brief was that if there is direct targeting of a party that affirm that that is a defend that's what we wrote at the end of our papers if there is direct targeting of a  potential plaintiff then in that case the irrevocably maybe there would be jurisdiction but that's not what the complaint what would be different if there's four thousand different individual people targeted i don't understand how that can help you  well if there is if there's direct targeting then there may be more of a connection to the meeting four thousand dollars versus one yeah you know if you have a general if you have a general website that are intentionally you know what happened in walton what happened in those other cases and in the west virginia case that was quoted by the plank this is that the the defendant was targeting a certain person writing an article based on sources in california based on sources in west virginia there was very very specific allegations relating to the it was a specific problem teachin relating to that particular state in that case i'm so that my hypothetical was website that says this person lynn is a terrible analyst i don't know where she is but wherever she is the community of people around her should know what a terrible analyst she is your position is you could do that on a website and they could only see you in israel i think that's right i think that is that is that is that is what i think the case law says meaning the walton case somebody writes an article terrible article about shirley jones and wherever she is is not enough they have to gather information relating to california there has to be more contacts with respect to california that's what the that's what the supreme court said in  case the context where that the plaintiff is purchasing material from a website that's interactive sitting in massachusetts having evil communications with the with the seller of the of the educational courses so there's back into paying money the allegations were that they were paying money from massachusetts and the crew and the st circuit your court said that that's not enough because even though their allegations both were allegations and breach of contract allegations that wasn't enough because the service the educational service even though it's service to people in massachusetts is not significant enough reputation and makes it clear that what they're trying to do is affect their reputation in their relevant community knowing that they're going to be somewhere but doesn't know where they are can set themselves up doing that in a place that's very difficult for the victim of the targeting to meaningfully litigate what's the purpose of that is i just think about it was it voluntary on the part of the defendant to set themselves up for that yes was it foreseeable that that person would be in a jurisdiction yes if the jurisdiction they end up being in is really difficult for you to litigate in the reasonableness inquiry protects you from a due process perspective so what is the point of getting the increase we don't even get to reasonable ness and just saying even if we perfectly reasonable to have you live again in massachusetts just because you were willfully blind to where she was you can never be through there i don't get the policy for that i don't know if i'm not sure it's a policy or it's just the minimal contacts that that a defendant needs to have with the forum in order to be in order for there to be purposeful of ailments of that form we were not purposely doing anything massachusetts with respect to this this analyst publication the analyst moved eight months she was in massachusetts for eight months but then she moved to new york  theoretically you know wherever she moves as your honor pointed out wherever she moves under the other theory she has jurisdiction what's the difference between this jurisdiction and any other jurisdiction the policy would be that that tip ranks could be hauled into court in fifty states based on that theory and the courts have been have been finding that that shouldn't be the case that there has to be more of a connection to the particular form in order for the defendant to be a defendant in the case it would be fifty states  once i guess it might according to the theory because she applied who says she applied only in massachusetts she will be then you can do something like keaton and you would just look at how how intensive were the contacts it might not be enough to have a single contact of in effect the minimal effect he suggests that you might have to have you know ten thousand circulated newspapers is different than five circulated newspapers in a jurisdiction of energy and you could do a similar type analysis here but she certainly knew that there was a jurisdiction in which her reputation would be affected significant i think yes or no i'm not sure i mean th plaintive doesn't have the option of going to israel and suing the it's not like the defendant is not subject to any loss and there are many lawsuits that are brought in foreign countries when the foreign defendant doesn't have a presence in the united states and is not you know not not with that with respect to no particular state the record also found that even if there was purposeful of elements  there that it would be unreasonable for there for the defendant to be sued in massachusetts and as the court is aware there are five factors that are looked into that just all factors  commonwealth's interest is the minutes by the fact that lynn no longer maintains her residence in massachusetts in fact the record shows that she moved three years ago from massachusetts and they brought the lawsuit three years after she moved and they fail to show located in this room so the district court concluded that because the primary witnesses and evidence are located outside of massachusetts then the interest of the judicial system in providing effective relief factor was not satisfied had potentially as she identified some employees employers that might have been there she might have found some witnesses but she didn't identify any witnesses and certainly the primary witnesses are not located in massachusetts and then businesses that do not target the commonwealth should be subject to jurisdiction that's been a factor that courts look into to branches not focusing on massachusetts there's nothing about what they said about her they didn't even know she was located they don't allege she was located in massachusetts they didn't know she was located in massachusetts and we submit that jurisdiction in these circumstances because plaintive happens to be located in massachusetts at a particular point in time is insufficient to satisfy this this th factor and therefore as this report concluded the balance of biggest all factors leads to the conclusion that the exercise of jurisdiction over to pranks would not be reasonable how about now yes ok all right thank you so you know she was forced to leave massachusetts to go live with family because she ran out of money because she couldn't get a job the harm did occur here and the witnesses the companies that she applied to you know her friendships were here in massachusetts and i appreciate that that information isn't part of the specific record but i think on a motion to dismiss you've got parent mentioned massachusetts is a two tiered appellate system there's the massachusetts appellate court and then there is the appellate division which reviews decisions of the district court which is for money appellate division so i think judge bear and you asked me do we have to follow that decision answer no and i also think that there's some questions here about the applicability of that case because walker v adams references the simple test but this is an active website as opposed to i believe that the website in in walker and finally i'd like to just point out that with respect to chen the distinction