product by docs in california in san bernardino county he in san bernardino county relied on their website advertising in san bernardino county he consumed the vita oxen in san marino county he did not receive the benefits or was injured by the vioxx product you've got that never x case and might circuit case that basically says only a website is not enough it's not an interactive website there was no evidence that it was it says you be something more so what something war do you presume your jurisdiction your honor and of i'll get to that right away in fact because first before we get to that  then of the website is where the judge found that there was the arise out of the issue and the judge said that without more information regarding the website or specifically being related to that website at california that does not exist this seems to be the problem here there was a website they did sell things but they didn't fell it to him that's correct or another far as he's concerned the only thing he's relying on as having seen some information on a website  jurisdiction specific jurisdiction and that's what we're here before that's what we're here about however that is the seminal case now regarding specific jurisdiction and if we go to that case and acknowledge that in underlying in the squid case they're talking about plavix a pill that was not sold by the defendant it was sold by resellers it was advertised but if and there's a national campaign similar to here where defended admits in its own briefing that is attached and i can give the citation that they are that they advertise to the world that there is a worldwide company advertising the world well known to the world what the bristol myers squibb case says and i'm going to read a number of of feel free to jump in at any point but at seven hundred seventy eight it says b m s did not develop plastic b m s being swiss did not develop plavix in california did not create a marketing strategy for plastics in california and did not anything in the you know disagrees with bristol myers at this point does bristol minus super sunday at all i'm asking a question does is mavericks is our decision mavericks now inconsistent with bristol myers i don't have an answer that you or i don't know ok then let's assume that mavericks is still good law you still haven't answered judge woodcocks question what's the something more the well let's go back to what the something more is advertised everyone under that rubric that judge that the judge in the underlying case did there would be no that make your client could have sued them in georgia but yes you would you would have a good argument for general jurisdiction but it would also be an argument for a specific jurisdiction that's where they manufacture the product that injured him the injury though for specific jurisdiction as outlin this is where specific jurisdiction lies any place where there is injury anyplace where the resident plaintiff suffers injury from the product is where th in state presidents in the  an awful lot of cases including supreme court cases that were just on do all of our if all we have to do is look at the place of injury that is that is going to be a reversal of you know one hundred years worth of  ok on seventy one and i'll read the entire paragraph the state supreme and start the present case illustrates the danger of the california approach the state supreme court found the specific jurisdiction was present without any identifying any adequate link between the state and the nonresidents claims as noted the nonresidents were not prescribed plavix in california did not purchase plavix in california did not in just pla california were not injured by plavix in california the mere fact the other plaintiffs the california plaintiffs were prescribed a pain in ingested plavix in california and allegedly sustain the same injuries as did the nonresidents does not allow the the plaintiffs the the resident people could sued them in this case in christian myers the injury was the ingestion right there was something wrong as a hurt you eating it was going to hurt you right so if they advertising was that it would not hurt you that it would do this same thing how can we in the same place in that if the advertising the did not turn out to be correct in this from our scoop place this would not hurt you is that affects a surprising case was the underlying yeah i don't know your honor i'm sorry however i do want to go on that because it says this is the third party this is the california residence as we've explained to defend if just because a relationship with a third party the california residence alone is insufficient basis for jurisdiction this remains true even when third parties the california plaintiffs here the plaintiffs who reside in california can bring claims similar to those brought by nonresiden when you take them in california are insuring use of pills or injuring you well that's not your kind of loss of money is the injury which was spent in california but but that wasn't to to she to the defendant it wasn't the defendant i mean directly he got the claim i don't think there's a distinction there your honor simply because the product is dangerous or not doesn't change the fact that the injury in fact is the loss of money and the injury in fact occurred in california i think the injuries patches loss of money if you take something in and in injuries you that's not the injury the injuries the injury but i don't think i think it's think it's a distinction without real meaning there in the fact that it's still and the injury occurred in california whether is a unicorn and i think that has a specific bearing on this case one thing that a company that interaction interstate commerce needs to be able to do is to have commercially reliable standards upon which to act in this particular website and if somebody buys it through their website in california i think at least at some point you soon know that there would be jurisdiction as to the person who actually bought it in california through the website i think absolutely there would be jurisdiction for have a contract action you'd have gotten caught in california yes you'd have some sort of contract action in that case however if you look at what premium nutraceuticals actually does is they have a very strict arbitration clause in a class action waiver so while they do market in california and they have a one hundred percent money back guarantee so they say to all of their clients yes we want to avail ourselves of the california market but if you purchase from us before you purchase it you have to agree to arbitrate any dispute and if you have a problem we'll give you all your money back in the record in this case actually honors that on page one seventy eight of the record you're going to find the declaration of joseph testino the company's c e o where he says that he's issued just in the year alone six hundred twenty four thousand three hundred twenty three dollars  refunds to customers throughout the country who have basically made the claims plaintiffs have that well you know this product doesn't do what they say it's supposed to do so in this particular case if you look to the walden and i see the name wrong walden vers fiore case the court is very clear that due process requires that a defendant be haled into court in a foreign state based on his own affiliation with that state not based on the random for two of us were attenuated contacts he makes by interacting with other persons affiliated with the state in this particular case premium like us as i mentioned previously has decided that in its interaction with california it wants to be very limited you know with all due respect to the  courts of the state of california they don't want to be here they want to market their products but they want to do so in a way that limits their ability to be held into court and they do it legally pursuant to federal arbitration act and other things on your own what's your take on bristol myers  my take on the bristol myers i'd actually have highlighted a quote from it bristol myers says explicitly even regular regularly occurring sales of a product in a state do not justify the exercise of jurisdiction over a claim do that kind of insinuated that he's willing to do it because i really hung my hat on the concept of arises out of under the analysis you have to show purposeful direction and that the claim arises out of in my my argument in this case was always one of causation  we did not sell to rob or me to bring in nutraceuticals marketed to one of its independent resellers and when i used the phrase earlier than out the phrase the word the unicorn specifically if you look at the statistics premium nutraceuticals nationwide they're going to be hailed into court and that foreign jurisdiction and i brought up the statistics not because i thought it was you know definitive but i think when if we get to that portion analysis which i don't think we do but if we get there we see that you have a company that says one point four percent of its total sales are in california and of those one point four percent only one point nine percent are attributable to the resellers so you're talking to and this is not a fact that's not in the record this particular statistic we're talking about seventy five to one hundred people that might fit in that california i think in this particular case what would be unfair is that there would be no reasonable expectation that they would be coming into california because there are other sales are are bound by this arbitration clause and are bound by this class action waiver so just because there might be this  kharkiv you know brought up this question of something more and i think that was that was something that the district court really hung its head on in this particular case that there isn't not that something more we have two different fact patterns we have the people who are purchasing it through resellers and this website that's supposedly creating their own website interactive at all the web site the premium has yes i would say it's interactive yes it is interactive it actually s interactive are you going to end up with pop ups on the side that i don't know i know that there is a and i don't know how much of this is in the record but i do know that when you purchase that when you click the screen pops up and says bear in mind if you've made a purchase you're binding yourself to these terms so if you if you had it does the webmaster have any way of identifying what region of the country or what state you're from when when you when you when you go to the website i just look at it i think i don't want to speak out of turn i know that that fact is not in the record but i believe that the probably is some some way that they can i know that in this particular case what is in the record is in the declaration of joseph testino he states that he has this limelight customer relationship management software where he can identify every person who ever entered information on his website ok but that would so that would but there you actually have to enter some information so that it takes some action on behalf of on behalf of the viewer that's not strictly passes if you're saying that is you go to this website and the webmaster can identify that you are from model on their website and on their terms of condition page they really want to limit the litigation to georgia to the best of their business but that's a different that for example with many websites if you go on them just to look at something say you know i am interested in this products and the more information they can enter their internet son and i want to send track to not only a sense you can buy things but that you can ask and ask questions on it i don't know if you can ask questions i know some websites now they have these bots where they kind of they're like unique in this particular case and when they go through calder and all these other things they talk about libel and i say one of the elements of libel is the dissemination of something that's false and so the torque occurs when the person reads it when you open up the paper and you read the lib statement about something that's where that toward has occurred and i said you know a lot of this this case was relatively unique because we have this really weird tort that we're focusing on where the injury is kind of disassociated from the actual dissemination or  from the actual defendant and so the something more i believe in maverick's was something along those lines they said what we have here is someone put together some copyrighted photographs and they were trying to market these photographs and then here comes this company and they put  copyrighted photographs out there and all the sudden we've lost value so there diminished value kind of comes along with the dissemination i don't believe that occurred in this case i mean it in the distinction is reading versus relying  newspaper article might be it can lead to a loss of reputation only if communicated to and read and understood by their persons so in this particular case i don't believe that you know we're going down that path where we have this this bizarre toward what we trade marker pen trademark in this particular case they had the copyright copyright copyright they copyrighted these photographs and someone was stealing their copyright and that actually gets to a lot of i mean a lot of the case law that the appellate cited revolves around these copyright actions and trademark actions and things like i pointed this out in my brief you know when when i disseminate a product that violates some sort of copyright or trademark that torta kirsan is the person sees that that's not the nature of california's false and misleading i think the tort under the false advertising law in california requires that the person actually purchase the individual for purchase the product and establish that it did not behave in the manner that it was claimed to be hate so you know i had that the risk  so i guess i see them go short on time so what i what i would say kind of that the main thrust of what the pelleas were trying to establish here is the arises out of prong and this has firm precedent and the burger king case and several other cases from the supreme court and recently the fact is premium nutraceuticals did not market this product in the stream at this and so the jurisdiction that is specific to this transaction the factors that are relevant to this transaction and jurisdictional analysis simply do not apply to the other thing i'll point out simply because i'm getting short on time it is valentine's day and my wife hillary less people who is an attorney help me draft my breeches infinitely smarter than me so i want to be public record that i'm happy valentine's day i believe up include with that however in their own briefing on page two fourteen of the record paragraph eighteen line eight hundred twenty two it says plaintiff and that would be apple e has exhausted countless resources spreading its brand across the us and the world resources marketing by docs online and on television so yes it was marketed to every state and to the entire world now going back to what we discussed i'd like to just point out a few cases in the starlight international case first life or health l c in this northern district california july twenty second two thousand and eight two thousand and eight u s district looks us five eight one two seven it states when a merchant seeks the benefit of engaging in unlimited interstate commerce or the internet it runs the risk of being subject to the process of the courts of those states the second case i'd like to cite is the bridgestone case and it says the bridgestone this is ninety nine callout fourth a seven seven seven it states and the second appellate court concluded that a manufacturer's placement of goods in the stream of commerce with the expectation that they will be purchased or used by consumers in california indicates an intention to serve the california market directly every state the only way to find that there is not specific jurisdiction here in california is defined that the only place there would be jurisdiction is in georgia and with that is not the law of bristol myers squibb the put it was just recently put out by the supreme court