give you a little being conducted a substantial business in california the answer is yes in two thousand alone it conducted almost seventy million dollars worth of business was that business continuous yes it was in response to a question well being acknowledged that although it didn't have the records to identify the fact that it had to acknowledge given the volume of telephone calls it was in daily business contact with california consumers was its business systematic in california yes it was the telephone sales amounted to fifty three million dollars in one year the website sales internet through the website electronic commerce sales exceeded fourteen million dollars that year and the order sales exceeded three million dollars this was done with almost two hundred vendors almost eleven million catalogs were sent into california by l l bean twenty two thousand and more e mails from scriber that were signed up catalogs were sent to specific addresses so there's no question that the got of exactly right in determining in this case that the three requisite that the requisite test for general jurisdiction substantial business and just or systematic and continuous business were all  through is the court traditionally has a specific jurisdictional analysis through the three prongs purposeful of ailment and arising out of a related to and is a jurisdictional reason now on the purposeful of the element prong there's a area where i think the jurisprudence of the ninth circuit might use some clarification there it should be clear that all of the contacts can be considered not just those related compensation case arising out of thirty one thousand dollars of commissions it was relevant to the court in that case the shoe shoes were being displayed by sample in the california supreme court for example they've adopted the an approach where the this court in opinions has used instead of the language you just referred to your honor arises out of or relates to has sometimes used the phrase arises out of or results from zero to be consistent with the of the supreme court of united states and burger king is you mentioned and in helicopter as particularly the court used arises out of or relates to and that's the sixty second suggestion that i might make terms of clarifying the specific  directly with gaters business martin affidavit the stablish is that gators business is primarily in california we have a clear writing out of on that portion of that that aspect if you're under the relates to part of the second prong a specific jurisdiction analysis you can consider as the court in an international issue and in the zahi and courts have in other cases the massive number of contacts there is a kind of the more contacts there are the less connection there has to be between the claim and the for courts it's you see it all of time is there general jurisdiction usually there's not water that is your specific jurisdiction go down the three prongs but there's never really been a close analysis i don't think in this circuit of these very issues of pure reason how to harmonize specific cures fiction so that you can consider factors that are not necessarily causative of the claim but related to the whole thing i might change that that the holistic approach any right thing to me we have to analyze those facts to determine the and i think related to what you disagree with no i don't i think it's important to look at that but when you do look at the record and you s gators a small company its primary business is with california customers just got so a few customers in vain but its primary business and is in california and the ads where is that have our lo california great i don't think it's based in washington but i don't know that for sure you're on where power is what the power comes in is because gator as part of its promotion program for its customers would offer coupons for free shipping on any valor and that would show up on a cust on the gator customers and when it and that's what offended the little bean this is a competitive way of doing business in california it affects the very business model that gator has in california it's a gators business that's was in california because the gator was located on the right but there was nothing unique about what gator was doing that tied its pop up ad uniquely to california no one it doesn't have to be unique it doesn't have to be isolated to california to have letter here we have a piece of it's left but it's this letter is not just opening doors to settlement negotiations we have the right of a california company that's been brought into a fight in california over its california substantially over its california business that was a product of fighting california because the because l l bean expressly aimed a threatening letter from portland maine on archly eckstein three thousand one the gator in california where its principal place of business is and so in terms of california we have the identical lawsuit identical lawsuits same parties same issues pending in oregon right that's that essentially but that makes sense does it make sense to have two identical lawsuits with the same issues in the same parties pending at the same time well the answer i think is yes your honor but the question before the court is jurisdiction honor would be no is that we don't want to use up judicial resources into courts with the same changed and the court dealt with that in the panel in the panel decision the issue before this court is yours fiction cases the oregon case is currently in the m p l along with other cases testing the validity of pop up ads and dealing with generally with the merits that both cases are scheduled for that had gone through some discovery or scheduled for some summary judgment hearings motions being filed in august and september the cases are then scheduled to come back it's clearly possible and clearly makes common sense when the case comes organ case comes back in being in california is a much preferable forum that it's chose this form that's fighting this on appeal so that the practical disposition of the commonsense very important commonsense question that you raised can be handled not in  decide it on the merits that all that's going on now is in the m t l where the word discovery and preliminary pretrial matters are going on federal issues not the state law issues and so if it comes back to the oregon court as i don't think other aspect of the council before you go to another issue i just want to follow up with respect to the arising out of point is it your position that the matter arises out of the letter or the access well being web site which a californian may have or both football is really both and clearly arises out of the letter your own meaning the we felt we were given an ultimatum we were told our business model is repugnant we were threatened with an injunction we were asked for an accounting and a demand for money there was no leeway there and we were given an ultimatum to respond in five days and our response was to use our rights respect to the specific jurisdiction argument only is your position that the mere exposure to the website accessible by a person in california is enough to give specific jurisdiction to the pop up ad controversy that's part of the mosaic i think your honor we don't we that's part of the entire mosaic we don't have to argue in this case that  jurisdiction rests solely on the internet site most of the business that being done did fifty three million dollars worth of just ordinary business over the phone orders responding to telephone calls part of our problem of course is to decide just related to the internet our clients unique business model is based on the internet and over fourteen million dollars available in sales were on the internet through the website but that's this is much more than an internet   least for purposes present purposes as a general jurisdictional houses but rather as a related relatedness specific jurisdiction analysis that's right and that's where helpful helpful way of looking at it i think there's one other point i'd like to make on this case but it provides a lens through which to look at the issue of specific your stiction because any time you look at pendent personal jurisdiction or supplemental jurisdiction you're looking at a related set of facts for example suppose a book can come into california through filling completely the express naming targeting test of the calder against bull and then suppose that the author had gone on talk show  uttered the same kind of defamatory remarks but in a jurisdiction where didn't carry over into california could there be pendent personal jurisdiction over those two very related claims is a way of looking at the specific jurisdiction issues through the lens of personal jurisdiction which i think fosters and reinforces the idea if you take a holistic approach in looking at specific jurisdiction you don't just isolate all of those factors that i've mentioned on general jurisdiction i asked a question about general gestation which is of course how you would want him in a panel decision are you willing to go so far as to argue that if i maine do you think that there is a general jurisdiction in california that would permit such a suit the first prong of going is or is taking substantial business or it's or continuous in systematic business would certainly be satisfied the second in that case it would be quite it would be quite proper to stay yes fellow being meets all of the parents of the first part of general jurisdiction but we don't think there's enough connection between the rules and the transfer of the new rules there's also the very practical fact that people are not likely to bring those cases this is one of the well they might for example of a section want to take mrs right home and they might bring in a state death presented for a unified single single publication rule all damages throughout the united states addressed that very issue and said yes there may be conflict of laws issues here there may be forum shopping problem here but you don't address them into one in writing out of consideration for general jurisdiction factors such as the presence of an office or store in california paying taxes to california people lo i think you just use the terms that the supreme court has used is a business substantial and is a continuous and systematic the exercise in helicopter of would have been simple had the courts stopped at the point that there's no store here or no physical presence in texas instead it went into a very careful analysis of the substantiality of the business in that case not enough to sustain going to jurisdiction leaving open specific the issue of melding in together that has not yet been reached by the supreme court of united states but in footnote county where the helicopter has opinion it has specifically reserve the question about the rises out of a facts on general jurisdiction and on top of that you've got this threatening letter then it seems to me clear that you have jurisdiction that's a panel rightly held but to turn your back to the question raised by judge fletcher and the example and that situation how would you play your reasonableness test to that example well reasonable tennis test would go through the seven factors and alternative forum and reasonable ness of connection and availability of witnesses you go through that analysis i might mention that you're honor and it's not directly in point to get specific jurisdiction case but in the world wide both walk in case the car was bought in new york but the robinson family drove it and it drove it it was hit they were headed for because of the car had been put in the stream of commerce is no holding on that but it's a realistic approach to the question you're raising but in the example from judge fletcher would it be reasonable in your view to find general jurisdiction in california for the claim brought by the former employee who happens to move to california it would certainly be reasonable to say there is substantial continuous just to man the context then the second question is a it please the court peter brand for l l bean the district court properly ruled that it did not have either general nor specific jurisdiction in this case first the court did not have general jurisdiction because over  officers no employees no operations whatsoever in california literalists no indices of general jurisdiction if a person causes harm in california i'm sorry but if a person doesn't act which causes harm california california have you are infringing upon our intellectual property rights that there's never been a suggestion in this litigation that the letter was tortious defamatory or anything else it is and it is the letter that simply  causing harm which would because that would then mean that you would always have jurisdiction and i would submit that that is soley specific jurisdiction which the district court properly ruled on was lacking as well based on a single cease and desist letter that letter conduct of the defendant in this case with the are being that is gives rise to the to the lawsuit itself the lawsuit is not about l l bean website and whether or not l l bean has a website that can be  california or wyoming or anyplace else it is the legality of gaiters business model and that's what you tell me it is the legality of their actions it is their pop up ads that are obscuring l l bean's website but that's what's happening in california and you have decided to stop it is happening california but it is not it but it is the elephant but the wrongful action though that is what is what gives rise to a lawsuit is it is gators pop up ads prevail and then look at the jurisdictional facts and the first specific jurisdiction the issue is the contact or the conduct of the defendant is the lawsuit arise out of or relating to that conduct and the states but it seems to me the issue is it's not just the website but the advertising that's related to purchases on the website and so if you don't just slice it so then it's safe it's just a website is that you are selling to customers including particularly target in california and you don't want your customers to be based on your website with this offending website pop up what it is it wrongful or not wrongful to put the pop up ads on the website that is the undone by the declaratory judgment plaintiffs but the actions of one of the things that burger king teaches us is the action can't be a basis for finding jurisdiction over the defendant so it has to be what is the defendant's actions what are the and what is and whether or not they are purposefully availing themselves in th example and coming back to them and the only thing cited to the district court and i would submit feel it properly i think that the only thing that they properly could rely on to get specific jurisdiction was not whether or not gaiters actions were legal or not and the fight over the internet it was the letter that l l bean put into the united states mail and sent to gator and we would submit it doesn't satisfy any of the three parts of the test for it's not purposeful of ailment of the in california here by burning through some other means it's it's hard to imagine how that you know if you know if you don't tell him that's your infringing if you don't and tell him to stop it's hard to know how to do it you could have but i suppose they could have posted something on their website all those who are engaged in pop up ads please stop we think it's infringing our rights and not send a letter specifically to cater but i think what that does is it takes you directly into what is the fundamental policy problem with that with a gator position which is someone who's faced with a perv tensional infringement of their intellectual property rights under their analysis of a specific jurisdiction it has three options you could do nothing or and let them in french if that's what they're doing you could send them a letter and try and work it out outside the court system without but you're under the under the pain of subjecting yourself to your restriction wherever they are located it happens that they are in california but they could be anywhere in the world or third to file the blitzkrieg lawsuit as it were to immediately go and file suit against them in a place where you think you have jurisdiction over them and because  the op as a peer you know in maine is the only we could sue them in maine if we chose but that can't be the policy and i would submit that one of the things that this ffion court should consider is the policy implications saying if you send a cease and desist letter telling someone to please stop infringing your or your intellectual property rights you do that under the pain of subjecting yourself to jurisdiction wherever you sent that letter asking what is the relevance in your construct all the other kinds of contacts the sending of hundreds of thousands of canalized californias the telephone calls to and from california to the photo shoots in california when he's attending meetings in california all those traditional thing diction lots and lots of context but not quite enough but then do something over here on an internet business and you never get any jurisdiction even though in fact you're doing now he's hours worth of business in california i don't think if you almost have a general jurisdiction and you specific jurisdiction that that just adds up to jurisdiction and that's i think what the implication is of the of the of the gaydar and i would set up and i think the supreme court was quite clear in helicopter us is that when they say that there is general jurisdiction and there are specific jurisdiction i think both of those should be analyzed separately and you should look at the specific contact and the reason why there are so many specific jurisdiction cases now in so few general jurisdiction cases is that specific jurisdiction looks at what it is that you're doing that gave rise to the lawsuit so for example and it certainly is true under under any host we were to sell a defective product and ship it directly to  a consumer in california or somewhere in the ninth circuit you should as you should expect to be subjected to jurisdiction but the mere fact that you carry on commerce from a way that is that you are your nerve center of your of your company general jurisdiction i think it i would submit that we see that this court should follow the lead of the supreme court in helicopter us and analyze those two questions separately and because when you do i think the result obviously is protect their business against what they regard as a wrongful act on the part of it are now in the business they're trying to protect as a general business a lot of it carried on through the internet through an interactive site by which california customers at their we have a real life controversy but the underlying controversy it does not the lawsuit unlike for example the bancroft case it's not about the letter or the i didn't ask whether it's about it the word is related right  any meaningful sense because which because otherwise if it if a cease and desist letter relating to a dispute over intellectual property rights on the internet if that's if that means that that the you can then sweep into that the whatever the contacts are on the internet it means that there is now specific jurisdiction not just in california but anywhere well i'm not so much talking with kind acts on the internet i'm talking about the business that l l b in precisely to protect their business with these california customers that's that's where i think the hang up in terms of the analysis which is if the if it be different it be different if we were suing gator directly that they were that is violating l l beans writes it which in just to describe that so it could be even if you were using it to generate it to put these pop up ads someplace else i mean it's that's still the online fight none of in that in the that's what this case was about it's not about l l bean has a website where they sell stuff the issue is can they use our good name can they then use our trademarks our u r l in order to a it certainly doesn't satisfy any of the three parts not purposeful of ailment you know we're not purposely availing of the privilege of conducting business in california when you send a letter to someone who happens to be in ca what relevance to the any since there is the fact that you have available to you a fourteen zero four transfer motion i think that is i think that is it's being held out as a fond hope it's a purely discretionary cong and it doesn't get at what is the fundamental some of the fundamental problems having to do with the process of coming out of going back to the hanssen case in which companies should be able to structure their activities in a way so that they have some minimum assurance of knowing where they will in will not be sued what we shouldn't be in a position of doing such a letter is to mean it's because they're both you know it's all tests of some level i mean it's you know it's hard to really you know say that all of this one definitely meets that life i mean the real problem though is that when l l bean which has structured its business you think of it and it does not have any of the traditional indices that would allow them to be expect to be sued for anything by anyone at any time and that's what general jurisdiction is really talking about is that the coming back to your example to mr trainor there is bank accounts employees bricks and mortar the trivial things associated with making yourself at home is the length of language so we did not challenge your personal jurisdiction at that time we we did file a motion to dismiss on  n as to whether or not there was still a justice will controversy because they were still the only thing they were going to do was this one letter sent in march of two thousand and one and a year and a half later discretionary call to touch their did not grant that most of that i think is referring to it is the nature of the contacts and do they are these the types of things that you would consider to be and conduct and conducting commerce with citizens from afar that is  certainly not something which is of the nature of conducting business in the state as this court said a few times and it's been picked up by the fifth circuit and others is that that conducting commerce  with it's not conducting its conducting commerce with california it's not conducting commerce in california so that when you have no agent no employees no offices no bank accounts no real property no personal property no advertising and just and it's not it's not a the the new economy is not does not mean the death of general jurisdiction because the consequences of looking at it differently that the cut that if you have an so called interactive web site that then gives you jurisdiction where the process principles of the due process clause that you feel to structure your activities to nowhere with some real reasonable degree of assurance where you will and will not be subject to suit or that it's a substitute for state sovereignty if you will that california has the right yes your honor also we address the issue of relates to a paid his eleven to fifteen of our reply brief and in paragraph five of the martin affidavit as i think response to your question of the colloquy that occurred with judge fletcher mr martin says there are more gator be in california insofar as it's a second by gators pop up as it's very simple and very helpful holic way that's the this is the fundamental issue here and we shouldn't lose sight of that is that we're talking about due process and the essential element of due process in jurisdiction cases is did the defendant have fair warning that it would be healed and according california given the massive facts plus its aggressive actions against gators we think these conclusion does if it does a colossal business that it does here in california it's got to anticipate in today's climate that there's going to be intellectual property issues and when a new company comes out like it or goes developing a new way of using the internet and i