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Read Yahoo v. La Lique and Mink v. AAAA Development LLC (Baumer, pp. 44-46), and then discuss the factors that were used to determine whether each court had jurisdiction over non-resident website operators. What business factors should enter into development of commercial websites and decisions about whether to subject a company to long-arm jurisdiction?


Volume 1 of 2

 


 

FOR PUBLICATION

 


 

UNITED STATES COURT OF APPEALS

 

FOR THE NINTH CIRCUIT

 

YAHOO! INC., a Delaware

 

corporation,

 

Plaintiff-Appellee,

 

v.

 

LA LIGUE CONTRE LE RACISME ET

 

L?ANTISEMITISME, a French

 

association; L?UNION DES

 

ETUDIANTS JUIFS DE FRANCE, a

 

French association,

 

Defendants-Appellants.

 


 


 


 


 

No. 01-17424

 

D.C. No.

 

CV-00-21275-JF

 

OPINION

 


 


 


 

Appeal from the United States District Court

 

for the Northern District of California

 

Jeremy Fogel, District Judge, Presiding

 

Argued and Submitted

 

March 24, 2005?San Francisco, California

 

Filed January 12, 2006

 

Before: Mary M. Schroeder, Chief Judge, and

 

Warren J. Ferguson, Diarmuid F. O?Scannlain,

 

Michael Daly Hawkins, A. Wallace Tashima,

 

William A. Fletcher, Raymond C. Fisher, Ronald M. Gould,

 

Richard A. Paez, Richard R. Clifton, and Carlos T. Bea,

 

Circuit Judges.

 


 

403

 


 

404

 


 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME

 


 

2 OPINIONS;

 

Per Curiam Opinion;

 

Opinion by Judge William A. Fletcher;

 

Concurrence by Judge Ferguson;

 

Concurrence by Judge O?Scannlain;

 

Concurrence by Judge Tashima;

 

Partial Concurrence and Partial Dissent by Judge Fisher

 


 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME

 


 

409

 


 

COUNSEL

 

Randol Schoenberg, Burris & Schoenberg, Los Angeles, California; Robert A. Christopher, Coudert Brothers, Palo Alto,

 

California; Mark D. Lebow, Sokolow Carreras, New York,

 

New York, for the defendants-appellants.

 

Michael Traynor, Cooley, Godward, Castro, Huddelson &

 

Tatum, San Francisco, California; Robert C. Vanderet,

 

O?Melveney & Myers, Los Angeles, California, for the

 

plaintiff-appellee.

 

Ann Brick, ACLU, San Francisco, California; John B. Morris,

 

Jr., Alan B. Davidson, Center for Democracy & Technology,

 

Washington, D.C., for amici American Booksellers Foundation for Free Expression, et al.

 

Jodie L. Kelley, Brian Hauck, Jenner & Block, Washington,

 

D.C.; Stephen A. Bokat, Robin S. Conrad, Joshua A. Ulman,

 

National Chamber Litigation Center, Washington, D.C., for

 

amici Chamber of Commerce of the United States, et al., and

 

for amicus Center for Democracy.

 


 

OPINION

 

PER CURIAM:

 

A majority of the en banc court (Judge W.A. Fletcher,

 

joined by Chief Judge Schroeder and Judges Hawkins, Fisher,

 

Gould, Paez, Clifton, and Bea) concludes that the district

 

court had personal jurisdiction over the defendants. Of that

 

majority, three judges (Chief Judge Schroeder, and Judges

 

W.A. Fletcher and Gould) conclude that the action should be

 

dismissed for lack of ripeness. Five judges (Judge Fisher,

 

joined by Judges Hawkins, Paez, Clifton, and Bea) conclude

 

that the case is ripe for adjudication. The three remaining

 


 

410

 


 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME

 


 

judges (Judges Ferguson, O?Scannlain, and Tashima) conclude that the action should be dismissed because the district

 

court lacked personal jurisdiction over the defendants.

 

A majority of the en banc court having voted therefor, the

 

judgment of the district court is REVERSED and the case

 

REMANDED with directions to dismiss the action without

 

prejudice.

 

YAHOO! INC., a Delaware

 

corporation,

 

Plaintiff-Appellee,

 

v.

 

LA LIGUE CONTRE LE RACISME ET

 

L?ANTISEMITISME, a French

 

association; L?UNION DES

 

ETUDIANTS JUIFS DE FRANCE, a

 

French association,

 

Defendants-Appellants.

 


 


 


 


 

No. 01-17424

 

D.C. No.

 

CV-00-21275-JF

 

OPINION

 


 


 


 

Appeal from the United States District Court

 

for the Northern District of California

 

Jeremy Fogel, District Judge, Presiding

 

Argued and Submitted

 

March 24, 2005?San Francisco, California

 

Filed January 12, 2006

 

Before: Mary M. Schroeder, Chief Judge, and

 

Warren J. Ferguson, Diarmuid F. O?Scannlain,

 

Michael Daly Hawkins, A. Wallace Tashima,

 

William A. Fletcher, Raymond C. Fisher, Ronald M. Gould,

 

Richard A. Paez, Richard R. Clifton, and Carlos T. Bea,

 

Circuit Judges.

 


 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME

 


 

411

 


 

Opinion by Judge William A. Fletcher

 

W. FLETCHER, Circuit Judge, with whom SCHROEDER,

 

Chief Circuit Judge, and GOULD, Circuit Judge, join as to

 

the entire opinion, and with whom HAWKINS, FISHER,

 

PAEZ, CLIFTON and BEA, Circuit Judges, join as to Parts

 

I and II:

 

Yahoo!, an American Internet service provider, brought

 

suit in federal district court in diversity against La Ligue Contre Le Racisme et L?Antisemitisme (?LICRA?) and L?Union

 

des Etudiants Juifs de France (?UEJF?) seeking a declaratory

 

judgment that two interim orders by a French court are unrecognizable and unenforceable. The district court held that the

 

exercise of personal jurisdiction over LICRA and UEJF was

 

proper, that the dispute was ripe, that abstention was unnecessary, and that the French orders are not enforceable in the

 

United States because such enforcement would violate the

 

First Amendment. The district court did not reach the question

 

whether the orders are recognizable. LICRA and UEJF appeal

 

only the personal jurisdiction, ripeness, and abstention holdings. A majority of the en banc panel holds, as explained in

 

Part II of this opinion, that the district court properly exercised personal jurisdiction over LICRA and UEJF. A plurality

 

of the panel concludes, as explained in Part III of this opinion,

 

that the case is not ripe under the criteria of Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967). We do not reach

 

the abstention question.

 

I.

 


 

Background

 


 

Yahoo! is a Delaware corporation with its principal place

 

of business in California. Through its United States-based

 

website yahoo.com, Yahoo! makes available a variety of

 

Internet services, including a search engine, e-mail, web page

 

hosting, instant messaging, auctions, and chat rooms. While

 

some of these services rely on content created by Yahoo!, others are forums and platforms for user-generated content.

 


 

412

 


 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME

 


 

Yahoo! users can, for example, design their own web pages,

 

share opinions on social and political message boards, play

 

fantasy baseball games, and post items to be auctioned for

 

sale. Yahoo! does not monitor such user-created content

 

before it is posted on the web through Yahoo! sites.

 

Yahoo!?s United States website is written in English. It targets users in the United States and relies on servers located in

 

California. Yahoo!?s foreign subsidiaries, such as Yahoo!

 

France, Yahoo! U.K., and Yahoo! India, have comparable

 

websites for their respective countries. The Internet addresses

 

of these foreign-based websites contain their two-letter country designations, such as fr.yahoo.com, uk.yahoo.com, and

 

in.yahoo.com. Yahoo!?s foreign subsidiaries? sites provide

 

content in the local language, target local citizens, and adopt

 

policies that comply with local law and customs. In actual

 

practice, however, national boundaries are highly permeable.

 

For example, any user in the United States can type

 

www.fr.yahoo.com into his or her web browser and thereby

 

reach Yahoo! France?s website. Conversely, any user in

 

France can type www.yahoo.com into his or her browser, or

 

click the link to Yahoo.com on the Yahoo! France home page,

 

and thereby reach yahoo.com.

 

Sometime in early April 2000, LICRA?s chairman sent by

 

mail and fax a cease and desist letter, dated April 5, 2000, to

 

Yahoo!?s headquarters in Santa Clara, California. The letter,

 

written in English, stated in part:

 

[W]e are particularly choked [sic] to see that your

 

Company keeps on presenting every day hundreds of

 

nazi symbols or objects for sale on the Web.

 

This practice is illegal according to French legislation and it is incumbent upon you to stop it, at least

 

on the French Territory.

 


 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME

 


 

413

 


 

Unless you cease presenting nazi objects for sale

 

within 8 days, we shall size [sic] the competent jurisdiction to force your company to abide by the law.

 

On April 10, five (rather than eight) days after the date on the

 

letter, LICRA filed suit against Yahoo! and Yahoo! France in

 

the Tribunal de Grande Instance de Paris. On April 20, UEJF

 

joined LICRA?s suit in the French court. LICRA and UEJF

 

used United States Marshals to serve process on Yahoo! in

 

California.

 

After a hearing on May 15, 2000, the French court issued

 

an ?interim? order on May 22 requiring Yahoo! to ?take all

 

necessary measures to dissuade and render impossible any

 

access [from French territory] via Yahoo.com to the Nazi artifact auction service and to any other site or service that may

 

be construed as constituting an apology for Nazism or a contesting of Nazi crimes? (emphasis added).1 Among other

 

things, the French court required Yahoo! to take particular

 

specified actions ?[b]y way of interim precautionary measures.? Yahoo! was required ?to cease all hosting and availability in the territory of [France] from the ?Yahoo.com? site

 

. . . of messages, images and text relating to Nazi objects, relics, insignia, emblems and flags, or which evoke Nazism,?

 

and of ?Web pages displaying text, extracts, or quotes from

 

?Mein Kampf? and the ?[Protocols of the Elders of Zion]? ? at

 

two specified Internet addresses. Yahoo! was further required

 

to remove from ?all browser directories accessible in the territory of the French Republic? the ?index heading entitled

 

?negationists? ? and any link ?bringing together, equating, or

 

1

 


 

The French court?s orders are written in French. We quote from the

 

English translation provided in the record. Counsel for LICRA and UEJF

 

contended at oral argument that the words ?all necessary measures?

 

(underlined and italicized above) are a mistranslation of the French text.

 

The original French for the entire phrase (italicized above) is ?prendre

 

toutes les mesures de nature à dissuader et à rendre impossible.? Counsel

 

contended that the words ?toutes les mesures de nature à? are more accurately translated as ?all reasonable (or available) measures.?

 


 

414

 


 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME

 


 

presenting directly or indirectly as equivalent? sites about the

 

Holocaust and sites by Holocaust deniers.

 

The May 22 interim order required Yahoo! France (as distinct from Yahoo!) to remove the ?negationists? index heading and the link to negationist sites, described above, from

 

fr.yahoo.com. The order further required Yahoo! France to

 

post a warning on fr.yahoo.com stating to any user of that

 

website that, in the event the user accessed prohibited material

 

through a search on Yahoo.com, he or she must ?desist from

 

viewing the site concerned[,] subject to imposition of the penalties provided in French legislation or the bringing of legal

 

action against him.?

 

The order stated that both Yahoo! and Yahoo! France were

 

subject to a penalty of 100,000 Euros per day of delay or per

 

confirmed violation, and stated that the ?possibility of liquidation of the penalties thus pronounced? was ?reserve[d].? The

 

order also awarded 1 Franc in ?provisional damages,? payable

 

by Yahoo! and Yahoo! France to UEJF, and awarded an additional 1 Franc against Yahoo! and Yahoo! France for

 

expenses under Article 700 of the New Code of Civil Procedure. The French court also awarded 10,000 Francs against

 

Yahoo! for expenses under Article 700, payable to LICRA,

 

and 10,000 Francs each against Yahoo! and Yahoo! France

 

under Article 700 (a total of 20,000 Francs), payable to UEJF.

 

Yahoo! objected to the May 22 order. It contended, among

 

other things, that ?there was no technical solution which

 

would enable it to comply fully with the terms of the court

 

order.? (Emphasis added.) In response, the French court

 

obtained a written report from three experts. The report concluded that under current conditions approximately 70% of

 

Yahoo! users operating from computer sites in France could

 

be identified. The report specifically noted that Yahoo!

 

already used such identification of French users to display

 

advertising banners in French. The 70% number applied irrespective of whether a Yahoo! user sought access to an auction

 


 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME

 


 

415

 


 

site, or to a site denying the existence of the Holocaust or constituting an apology for Nazism.

 

With respect to auction sites, the report concluded that it

 

would be possible to identify additional users. Two out of the

 

three experts concluded that approximately an additional 20%

 

of users seeking access to auction sites offering Nazi-related

 

items for sale could be identified through an honor system in

 

which the user would be asked to state his or her nationality.

 

In all, the two experts estimated that almost 90% of such auction site users in France could be identified: ?The combination of the two procedures, namely geographical identification

 

of the IP address and declaration of nationality, would be

 

likely to achieve a filtering success rate approaching 90%.?

 

The third expert expressed doubts about the number of additional users of the auction site who would respond truthfully

 

under the honor system. He did not, however, specify an alternative number of users ? say, 15% or 10% ? who would

 

respond truthfully.

 

With respect to sites denying the existence of the Holocaust

 

or constituting an apology for Nazism, the report was not able

 

to ?propose suitable and effective technical solutions?

 

because no ?grievance? against those sites had been made

 

with ?sufficient precision.? In consequence, as to these nonauction sites, the report did not estimate how many Yahoo!

 

users above the base 70% number could be identified by an

 

honor system.

 

In a second interim order, issued on November 20, 2000,

 

the French court reaffirmed its May 22 order and directed

 

Yahoo! to comply within three months, ?subject to a penalty

 

of 100,000 Francs per day of delay effective from the first day

 

following expiry of the 3 month period.? (The May 22 order

 

had specified a penalty of 100,000 Euros rather than 100,000

 

Francs.) The court ?reserve[d] the possible liquidation of the

 

penalty? against Yahoo!. The French court?s November 20

 

order required Yahoo! France (as distinct from Yahoo!) to

 


 

416

 


 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME

 


 

display ?a warning to surfers even before they have made use

 

of the link to Yahoo.com, to be brought into effect within 2

 

months following notification of the present order.? However,

 

the French court found ?that YAHOO FRANCE has complied

 

in large measure with the spirit and letter of the order of 22nd

 

May 2000[.]? (Emphasis added.)

 

The November 20 order required Yahoo! to pay 10,000

 

Francs for a report, to be prepared in the future by one of the

 

experts previously appointed by the court, to determine

 

whether Yahoo! was in compliance with the court?s orders. It

 

also awarded a total of 20,000 Francs against Yahoo! for

 

expenses under Article 700, payable to LICRA and UEJF, and

 

an unspecified amount of costs against Yahoo!, payable to

 

LICRA and UEJF. The court specifically stated that it was not

 

awarding any expenses or costs against Yahoo! France (which

 

it had found to have complied ?in large measure? with its

 

order). LICRA and UEJF used United States Marshals to

 

serve both orders on Yahoo! in Santa Clara, California.

 

Yahoo! did not pursue appeals of either interim order.

 

The French court has not imposed any penalty on Yahoo!

 

for violations of the May 22 or November 20 orders. Nor has

 

either LICRA or UEJF returned to the French court to seek

 

the imposition of a penalty. Both organizations affirmatively

 

represent to us that they have no intention of doing so if

 

Yahoo! maintains its current level of compliance. Yet neither

 

organization is willing to ask the French court to vacate its

 

orders. As LICRA and UEJF?s counsel made clear at oral

 

argument, ?My clients will not give up the right to go to

 

France and enforce the French judgment against Yahoo! in

 

France if they revert to their old ways and violate French

 

law.?

 

The record reveals that the French ?public prosecutor? participated in the proceedings against Yahoo! and Yahoo!

 

France in the French court, but it does not reveal whether he

 


 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME

 


 

417

 


 

has the authority to seek a penalty against Yahoo! under the

 

interim orders, either on his own or pursuant to a request by

 

LICRA and/or UEJF. The public prosecutor was not made a

 

party to the suit in the district court, and has made no appearance in the district court or on appeal to this court. If LICRA,

 

UEJF, or the public prosecutor were to seek the imposition of

 

a penalty by the French court pursuant to the interim orders,

 

that court would have to determine the extent of Yahoo!?s

 

violation, if any, of the orders, as well as the amount of any

 

penalty, before an award of a penalty could be entered.

 

On December 21, 2000, Yahoo! filed suit against LICRA

 

and UEJF in federal district court, seeking a declaratory judgment that the interim orders of the French court are not recognizable or enforceable in the United States. Subject matter

 

jurisdiction is based solely on diversity of citizenship. 28

 

U.S.C. § 1332(a)(2). In a thoughtful opinion, the district court

 

concluded that it had personal jurisdiction over LICRA and

 

UEJF. Yahoo! Inc. v. La Ligue Contre le Racisme et

 

l?Antisemitisme, 145 F. Supp. 2d 1168, 1180 (N.D. Cal.

 

2001). Several months later, in another thoughtful opinion,

 

the district court concluded that the suit was ripe, that abstention was not warranted, and that ?the First Amendment precludes enforcement within the United States.? Yahoo!, Inc. v.

 

La Ligue Contre le Racisme et l?Antisemitisme, 169 F. Supp.

 

2d 1181, 1194 (N.D. Cal. 2001).

 

In early 2001, after both interim orders had been entered by

 

the French court, and after Yahoo! had filed suit in federal

 

district court, Yahoo! adopted a new policy prohibiting use of

 

auctions or classified advertisements on Yahoo.com ?to offer

 

or trade in items that are associated with or could be used to

 

promote or glorify groups that are known principally for hateful and violent positions directed at others based on race or

 

similar factors.? Yahoo! has represented, in this court and

 

elsewhere, that its new policy has not been adopted in

 

response to the French court?s orders, but rather for independent reasons. Yahoo?s new policy eliminates much of the con-

 


 

418

 


 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME

 


 

duct prohibited by the French orders. However, after

 

conducting its own Internet research on yahoo.com, the district court found that even after this policy change, Yahoo!

 

?appear[s]? not to have fully complied with the orders with

 

respect to its auction site. 169 F. Supp. 2d at 1185. For example, the district court found that Yahoo! continued to allow

 

the sale of items such as a copy of Mein Kampf and stamps

 

and coins from the Nazi period on which the swastika is

 

depicted. Id. The district court also found that access was

 

available through yahoo.com to various sites in response to

 

searches such as ?Holocaust/5 did not happen.? Id.

 

LICRA and UEJF timely appealed the district court?s rulings on personal jurisdiction, ripeness, and abstention.

 

II.

 


 

Personal Jurisdiction

 


 

The only bases for personal jurisdiction over LICRA and

 

UEJF in the district court are the actions they have taken in

 

connection with their French suit against Yahoo!. Those

 

actions are sending a cease and desist letter to Yahoo! at its

 

headquarters in Santa Clara, California; serving process on

 

Yahoo! in Santa Clara to commence the French suit; obtaining two interim orders from the French court; and serving the

 

two orders on Yahoo! in Santa Clara.

 

Where, as here, there is no applicable federal statute governing personal jurisdiction, the district court applies the law

 

of the state in which the district court sits. See Fed. R. Civ.

 

P. 4(k)(1)(A); Panavision Int?l, L.P. v. Toeppen, 141 F.3d

 

1316, 1320 (9th Cir. 1998). Because California?s long-arm

 

jurisdictional statute is coextensive with federal due process

 

requirements, the jurisdictional analyses under state law and

 

federal due process are the same. Id. at 1320 (citing Cal. Civ.

 

Proc. Code § 410.10).

 

[1] In International Shoe Co. v. Washington, 326 U.S. 310

 

(1945), the Supreme Court held that a court may exercise per-

 


 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME

 


 

419

 


 

sonal jurisdiction over a defendant consistent with due process only if he or she has ?certain minimum contacts? with

 

the relevant forum ?such that the maintenance of the suit does

 

not offend ?traditional notions of fair play and substantial justice.? ? Id. at 316 (quoting Milliken v. Meyer, 311 U.S. 457,

 

463 (1940)). Unless a defendant?s contacts with a forum are

 

so substantial, continuous, and systematic that the defendant

 

can be deemed to be ?present? in that forum for all purposes,

 

a forum may exercise only ?specific? jurisdiction ? that is,

 

jurisdiction based on the relationship between the defendant?s

 

forum contacts and the plaintiff?s claim. The parties agree that

 

only specific jurisdiction is at issue in this case.

 

[2] In this circuit, we analyze specific jurisdiction according to a three-prong test:

 

(1) The non-resident defendant must purposefully

 

direct his activities or consummate some transaction

 

with the forum or resident thereof; or perform some

 

act by which he purposefully avails himself of the

 

privilege of conducting activities in the forum,

 

thereby invoking the benefits and protections of its

 

laws;

 

(2) the claim must be one which arises out of or

 

relates to the defendant?s forum-related activities;

 

and

 

(3) the exercise of jurisdiction must comport with

 

fair play and substantial justice, i.e. it must be reasonable.

 

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802

 

(9th Cir. 2004) (quoting Lake v. Lake, 817 F.2d 1416, 1421

 

(9th Cir. 1987)). The first prong is determinative in this case.

 

We have sometimes referred to it, in shorthand fashion, as the

 

?purposeful availment? prong. Schwarzenegger, 374 F.3d at

 

802. Despite its label, this prong includes both purposeful

 


 

420

 


 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME

 


 

availment and purposeful direction. It may be satisfied by purposeful availment of the privilege of doing business in the

 

forum; by purposeful direction of activities at the forum; or by

 

some combination thereof.

 

We have typically treated ?purposeful availment? somewhat differently in tort and contract cases. In tort cases, we

 

typically inquire whether a defendant ?purposefully direct[s]

 

his activities? at the forum state, applying an ?effects? test

 

that focuses on the forum in which the defendant?s actions

 

were felt, whether or not the actions themselves occurred

 

within the forum. See Schwarzenegger, 374 F.3d at 803 (citing Calder v. Jones, 465 U.S. 783, 789-90 (1984)). By contrast, in contract cases, we typically inquire whether a

 

defendant ?purposefully avails itself of the privilege of conducting activities? or ?consummate[s] [a] transaction? in the

 

forum, focusing on activities such as delivering goods or executing a contract. See Schwarzenegger, 374 F.3d at 802. However, this case is neither a tort nor a contract case. Rather, it

 

is a case in which Yahoo! argues, based on the First Amendment, that the French court?s interim orders are unenforceable

 

by an American court.

 

[3] LICRA and UEJF contend that we must base our analysis on the so-called ?effects? test of Calder v. Jones, 465 U.S.

 

783 (1984), which is normally employed in purposeful direction cases. See, e.g., CE Distrib., LLC v. New Sensor Corp.,

 

380 F.3d 1107, 1111 (9th Cir. 2004); Schwarzenegger, 374

 

F.3d at 803; Dole Food Co. v. Watts, 303 F.3d 1104, 1111

 

(9th Cir. 2002). In Calder, a California-based entertainer sued

 

the National Enquirer and various individual defendants for

 

an allegedly defamatory article published in the Enquirer. The

 

article had been written and edited in Florida, and the defendants had few contacts with California. The Court nonetheless

 

upheld the exercise of personal jurisdiction in California

 

because the defendants knew that the article would have an

 

effect in that state. In the words of the Court, the defendants

 

had not engaged in ?mere untargeted negligence?; rather, their

 


 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME

 


 

421

 


 

?intentional, and allegedly tortious, actions were expressly

 

aimed at California.? 465 U.S. at 789.

 

[4] In this circuit, we construe Calder to impose three

 

requirements: ?the defendant allegedly [must] have (1) committed an intentional act, (2) expressly aimed at the forum

 

state, (3) causing harm that the defendant knows is likely to

 

be suffered in the forum state.? Schwarzenegger, 374 F.3d at

 

803 (quoting Dole Food, 303 F.3d at 1111). In some of our

 

cases, we have employed a slightly different formulation of

 

the third requirement, specifying that the act must have

 

?caused harm, the brunt of which is suffered and which the

 

defendant knows is likely to be suffered in the forum state.?

 

Bancroft & Masters, Inc. v. Augusta Nat?l Inc., 223 F.3d

 

1082, 1087 (9th Cir. 2000) (emphasis added). The ?brunt? of

 

the harm formulation originated in the principal opinion in

 

Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482 (9th Cir.

 

1993). That opinion required that the ?brunt? of the harm be

 

suffered in the forum state; based on that requirement, it concluded that there was no purposeful availment by the defendant. Id. at 1486. A dissenting judge would have found

 

purposefu...

 







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