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Evaluating Personal Jurisdiction over Foreign Nonparty Banks in Light of the Gucci Case
Name: Evaluating Personal Jurisdiction over Foreign Nonparty Banks in Light of the Gucci Case
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Year: 2017
Language: English
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\jciprod01productnCCIN49 3CIN306.txtunknownSeq: 2 6 APR 17 14:45 746 Cornell International Law Journal Vol. 49 counterfeits: they bring lawsuits against individuals responsible for ma nu facturing and selling counterfeit goods. 1 The defendants in all three cases sold counterfeit versions of the plaintiffs" products on the Internet, includ ing Gucci" wallets, Bottega Veneta" handbags, and other luxury brands" jewelry, wallets, and handbags. 2 These cases discuss the issue of whether nonparty foreign banks could be compelled, under U.S. federal civil proce dure rules, to produce bank account information of individuals accused to have engaged in counterfeit activities. 3 Although the three cases share almost identical facts, in 2011, three Southern District of New York judges released differing opinions on this issue. 4 In Tiffany (NJ) LLC v. Qi Andrew, 5 the court held that before asking the court to issue a federal subpoena under Federal Rule of Civil Procedure, Rule 45 ( FRCP 45"), plaintiffs should first request information located in China through the Hague Convention. 6 The court noted that plaintiffs may renew their applications to enforce a federal subpoena if such a process proved futile. 7 On the other hand, in Gucci America, Inc. v. Weixing Li (" Gucci I "), 8 the court ordered the nonparty, Bank of China ( BOC"), to produce docu ments located in China pursuant to FRCP 45, reasoning that a Hague Con vention request through the Chinese government would not be a viable alternative." 9 In another similar case initiated by Tiffany, Tiffany (NJ) LLC v. Forbse , 10 the court diverged from two previous cases and ruled that the BOC would be required to produce documents through the preliminary injunction order"s discovery provision, while the two other Chinese banks could produce documents through a Hague Convention request. 11 1. See Minning Yu, Note, Benefit of the Doubt: Obstacles to Discovery in Claims Against Chinese Counterfeiters , 81 F ORDHAM L. REV. 2987, 2996 97 (2013). 2. Gucci Am., Inc. v. Bank of China (Gucci II), 768 F.3d 122, 125 (2d Cir. 2014). 3. Megan C. Chang & Terry E. Chang, Brand Name Replicas and Bank Secrecy: Exploring Attitudes and Anxieties Towards Chinese Banks in the Tiffany a nd Gucci Cases, 7 B ROOK. J. CORP. FIN. & COM. L. 425, 425 (2012). 4. Id. 5. Tiffany (NJ) LLC v. Qi Andrew, 276 F.R.D. 143, 160 61 (S.D.N.Y. 2011). 6. F ED. R. CIV. P. 45; Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters, Mar. 18, 1970, 23 U.S.T. 2555, 847 U.N.T.S. 231 . 7. Qi Andrew, 276 F.R.D. at 160 61. The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, to which the U.S. is also a party, was signed by the People's Republic of China in 199 1 and ratified in 1992. See Status Table, 14: Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters , H AGUE CONF. ON PRIVATE INT'L L. (Oct.13, 2015), tus&cid=17. 8. Gucci Am., Inc. v. Weixing Li (Gucci I), No. 10 Civ. 4974 (RJS), 2011 U.S. Dist. LEXIS 97814 (S.D.N.Y. Aug. 23, 2011). 9. Id. at *27, *38. 10. Tiffany (NJ) LLC v. Forbse, No. 11 Civ. 4976 (NRB), 2012 U.S. Dist. LEXIS 72148 (S.D.N.Y. May 23, 2012). 11. Id. at *39.

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\jciprod01productnCCIN49 3CIN306.txtunknownSeq: 3 6 APR 17 14:45 747 2016 Show Me the Money Nonparty BOC appealed both decisions in Gucci I and Forbse . 12 On appeal, the Second Circuit Court of Appeals in Gucci America, Inc. v. Bank of China (" Gucci II" ) remanded both cases. 13 The court reasoned that because the decisions in Gucci I , Forbse, and Qi Andrew were decided based on a presumption that was later overruled in Daimler AG v. Bauman , 14 the district court should reconsider whether it could exercise specific personal jurisdiction over nonparty foreign banks based on the activities of the banks" in state branches. 15 On remand, the district court in Gucci America, Inc. v. Weixing Li (" Gucci III" ) 16 held that because New York"s long arm statute provides a statutory basis for exercising personal jurisdiction and the exercise of such specific personal jurisdiction comports with constitutional due process and principles of comity, the court could exercise specific personal juris diction over BOC. 17 BOC was then compelled to produce the requested documents pursuant to FRCP 45, including those located at the BOC"s headquarters in China. 18 Gucci III exemplifies one way district courts approach personal juris diction issues over a nonparty foreign bank in the post Daimler era. 19 Given the case implications and the party involved, the decision will expectedly attract media attention and inspire discussion among practi tioners. 20 The Gucci case highlights the uneasy relationship between non party discovery and personal jurisdiction. Although the Supreme Court has yet to address whether U.S. courts have specific jurisdiction over n on 12. See Gucci Am., Inc. v. Bank of China (Gucci II), 768 F.3d 122, 125 (2d Cir. 2014). 13. Tiffany (NJ) LLC v. China Merchants Bank, 589 Fed. Appx. 550, 551 (2d Cir. 2014); Gucci II, 768 F.3d at 145. 14. Daimler AG v. Bauman, 134 S. Ct. 746, 759 60 (2014) (holding that a foreign corporation may not be subjected to a court"s general jurisdiction solely based on the contacts of its in state subsidiary). 15. Gucci II, 768 F.3d at 145. 16. Gucci Am., Inc. v. Weixing Li (Gucci III), No. 10 Civ. 4974 (RJS), 135 F. Supp. 3d 87 (S.D.N.Y. Sept. 29, 2015). 17. Id. at 96, 101, 104. 18. Id. at 104. 19. On remand, plaintiff Tiffany in both cases moved to default judgment, which left the issue regarding specific personal jurisdiction over nonparty banks premature. See Tiffany (NJ) LLC v. Forbse, No. 11 Civ. 4976 (NRB), 2015 U.S. Dist. LEXIS 129647, at *1 11 (S.D.N.Y. Sept. 22, 2015) (granting plaintiff's motion of defau lt judgment without discussing issues of specific personal jurisdiction over the nonparty ba nks); Tiffany (NJ) LLC v. Qi Andrew, No. 10 Civ. 9471 (KPF) (HBP), 2015 U.S. Dist. LEXI S 77391, at *37 (S.D.N.Y. June 15, 2015) (declining to address the issues raised by the banks c oncerning personal jurisdiction and comity). 20. For examples of media coverage and law firm publications, see Erika Kine tz, Bank of China Ordered to Release Counterfeiter's Records , A SSOCIATED PRESS (Oct. 7, 2015, 12:16 AM), / bank china ordered release counterfeiters records; Owen Pell et al., The Second Circuit Limits the Power of Courts to Enforce Asset Restraints and Discovery Ord ers Against Foreign Banks , W HITE & CASE, circuit limits power courts enforce asset restraints and discovery orders (last visited Oct. 15, 2015).

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\jciprod01productnCCIN49 3CIN306.txtunknownSeq: 4 6 APR 17 14:45 748 Cornell International Law Journal Vol. 49 parties, 21 lower federal courts have tackled the issue by applying the same test they use to determine jurisdiction over civil defendants, whether domestic or foreign. 22 As the Second Circuit has recognized, there is no case on point regarding whether the exercise of personal jurisdiction is appropriate in the context of a foreign nonparty with only limited contacts in the forum. 23 With the growing volume and complexity of international litigation in American courts, 24 it would be important to assess such a test and provide clear and consistent guidance to future nonparties, because parties increasingly request documents from (distant) nonparties, such as Chinese banks. This Note assesses the specific personal jurisdiction test for foreign nonparties applied in Gucci III . It argues that nonparties do not have a stake nor an interest in the conflict and that the exercise of specific per sonal jurisdiction has an extraterritorial effect affecting the sovereignty of other nations when weighed against the traditional notion of fair play and substantial justice" due process demands. 25 Part I of this Note recounts the recent development of Supreme Court cases regarding personal juris diction over parties. Part II briefly discusses how lower courts treat domestic nonparties for jurisdictional purposes; it then proposes a revised personal jurisdiction analysis designed for foreign nonparties. Part III dis cusses the facts and courts" analyses of the Gucci II and Gucci III cases. Part IV discusses the problems with the current analysis as applied to B OC as a foreign nonparty in the Gucci III case and how courts should rule under the proposed revised scheme. Part V discusses the potential conse quences of upholding specific personal jurisdiction over foreign nonpar ties. The Note concludes that due process imposes limitations on personal jurisdiction over foreign nonparties, and that minimum contacts analysis should apply to foreign nonparties. The Note proposes that when assess ing whether the court should exercise specific personal jurisdiction over a foreign nonparty, however, the court should differentiate foreign nonpar ties from defendants on both the minimum contacts framework and rea sonableness prong by assigning more weight to international rapport and the fact that nonparties have no stake or interest in the conflict. I. From International Shoe to Daimler: Modern U.S. Jurisprudence of Personal Jurisdiction A. Minimum Contact In Pennoyer v. Neff, 26 the Supreme Court held that a tribunal"s juris diction over persons reaches no farther than the geographic bounds of the 21. Gucci Am., Inc. v. Bank of China (Gucci II), 768 F.3d 122, 136 (2d Cir. 2014). 22. Id. at 136 37. 23. Id. at 137 38. 24. See, e.g., John H. Robinson, The Extraterritorial Application of American Law: Preliminary Reflections , 27 J.C. & U.L. 187, 203 (2000). 25. International Shoe v. Washington, 326 U.S. 310, 316 (1945). 26. Pennoyer v. Neff, 95 U.S. 714 (1878).

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\jciprod01productnCCIN49 3CIN306.txtunknownSeq: 5 6 APR 17 14:45 749 2016 Show Me the Money forum. 27 With time, however, that rigid territorial focus yielded to a less strict approach, spurred by changes in the technology of transportation and communication, and the tremendous growth of interstate business activity." 28 The Supreme Court introduced the touchstone modern due process principle in International Shoe Co. v. Washington 29 and held that before a court may exercise jurisdiction over a person or an organization, that p er son or entity must have sufficient minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice."" 30 Following International Shoe , the central concern of personal jurisdiction inquiries has focused on "the relati onship among the defendant, the forum, and the litigation, rather than the mutu ally exclusive sovereignty of the state on which the rules of Pennoyer rest." 31 Professors Arthur von Mehren and Donald Trautman first proposed the terms general jurisdiction" and specific jurisdiction" to categorize courts" treatment of personal jurisdiction over out of state defendants. 32 The Supreme Court adopted their formulations nearly forty years after International Shoe in Helicopteros Nacionales de Colombia, S.A. v. Hall , 33 and for the first time, differentiated between general and specific jurisdiction. 34 In Helicopteros, the Court concluded that the forum state has "specific jurisdiction" over a defendant in a suit arising out of or related to the defen dant"s contacts with the forum, and the forum state has general jurisdic tion" over a defendant in a suit not arising out of or related to the defendant"s contacts with the forum. 35 In a line of cases addressing specific jurisdiction, the Supreme Court distilled the minimum contacts inquiry to two issues: (1) the purposeful availment" prong, whereby the court determines whether the defendant purposefully directed his activities in the forum; 36 and (2) the related 27. Id. at 720; see also Shaffer v. Heitner, 433 U.S. 186, 197 (1977) (holding that under Pennoyer, "any attempt directly to assert extraterritorial jurisdiction over persons or property would offend sister states and exceed the inherent limits of the state's power"). 28. Burnham v. Superior Court of California, 495 U.S. 604, 617 (1990). 29. See International Shoe, 326 U.S. at 316. 30. Id. 31. Shaffer, 433 U.S. at 204. 32. See Arthur T. von Mehren & Donald T. Trautman, Jurisdiction to Adjudicate: A Suggested Analysis , 79 H ARV. L. REV. 1121, 1136 (1966). This article is the most cited source in Justice Ginsburg's majority opinions addressing the persona l jurisdiction issue. Harvard Law Review, Daimler AG v. Bauman , 128 H ARV. L. REV. 311, 318 (2014) (noting that von Mehren and Trautman's thinking influenced Justice G insburg's view of personal jurisdiction). 33. See Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U.S. 408, 414 (1984). 34. Id. at 414 nn.8 9. 35. Id. 36. See Hanson v. Denckla, 357 U.S. 235, 253 (1958). The Supreme Court has sub sequently enforced this requirement of purposeful availment in several cases. See World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) (holding t hat when a

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\jciprod01productnCCIN49 3CIN306.txtunknownSeq: 6 6 APR 17 14:45 750 Cornell International Law Journal Vol. 49 ness" prong, whereby the court determines whether the litigation resu lts from alleged injuries that arise out of or are related to those activiti es in the forum. 37 To address whether exercising general jurisdiction over a non resident defendant is proper, the Supreme Court in Goodyear Dunlop Tires Opera tions, S.A. v. Brown 38 refined the International Shoe standard to require that the contacts be "so continuous and systematic as to render them essen tially at home in the forum state." 39 The Goodyear Court explained that general jurisdiction exists for an individual when the forum state is the indivi dual's domicile; the Court also explained that general jurisdiction exists over a corporation when the forum state is a place that the corporation is fair ly regarded as at home. 40 Importantly, Goodyear emphasized that specific jurisdiction has become the centerpiece of modern jurisdiction theory, while general jurisdiction has played a reduced role. 41 Although Goodyear recognized that general jurisdiction exists at the corporation's place of incorporation and principal place of business, the opinion did not restrict general jurisdiction to those "paradigm" places. 42 The Supreme Court clarified Goodyear in Daimler AG v. Bauman by hold ing that Daimler AG ( Daimler"), a German public stock company, could not be subjected to California"s general jurisdiction in a suit filed by Argen tine plaintiffs over events occurring entirely outside the United States. 43 The Court reasoned that Daimler was not at home" in California, even assuming that Daimler"s U.S. subsidiary was at home" in California and that the U.S. subsidiary"s contact could be imputed to it on an agency the ory. 44 In sum, Daimler closes the door on expanding general personal jurisdiction for corporations by reaffirming the restrictive test articu lated in Goodyear that foreign corporations are not subject to general personal jurisdiction in a state unless they are "essentially at home" in t hat state general jurisdiction exists for a corporation when the forum state is it s principal place of business or the place of incorporation. 45 Daimler fur corporation purposefully avails itself of the privilege of conducting ac tivities within the forum state, it has clear notice that it is subject to suit in that stat e); Rush v. Savchuk, 444 U.S. 320, 329 (1980) (noting that the defendant had not engaged i n any purposeful availment related to the forum that would make the exercise of jurisdict ion reasonable); Kulko v. California Superior Court, 436 U.S. 84, 94 (1978) (noting th at it is essential that defendants purposefully avail themselves of the privileges of condu cting activities within the forum state to justify bringing them to suit there). 37. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985). International Shoe created the concept of relatedness, requiring the defendant to be conne cted to the litigation. See International Shoe v. Washington, 326 U.S. 310, 316 18 (1945). 38. Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011). 39. Id. at 2851. 40. Id. at 2853 54. 41. Id. at 2854; see also Mary Twitchell, The Myth of General Jurisdiction, 101 H ARV. L. R EV. 610, 628 (1988). 42. See Goodyear, 131 S. Ct. at 2854. 43. Daimler AG v. Bauman, 134 S. Ct. 746, 753 63 (2014). 44. See id. at 759 61. 45. See id. at 754.

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\jciprod01productnCCIN49 3CIN306.txtunknownSeq: 7 6 APR 17 14:45 751 2016 Show Me the Money ther clarified that where the alter ego test 46 is not satisfied, a corporate subsidiary"s sizeable sales in the forum state or the importance of its ser vices to its parent are not sufficient to support general jurisdiction over a foreign parent corporation. 47 Daimler reiterated the Supreme Court's posi tion on personal jurisdiction in Goodyear by concluding that general juris diction has played a reduced role in modern jurisdiction theory. 48 B. Reasonableness Having established sufficient minimum contacts with the forum state, a court then considers several additional factors to assess the reasonable ness of exercising specific jurisdiction over the defendant. 49 In World Wide Volkswagen , the Supreme Court listed several factors while considering the reasonableness of jurisdiction: (1) "the burden on the defendant," (2) "the forum state's interest in adjudicating the dispute," (3) "the plaintiff's inter est in obtaining convenient and effective relief," (4) the interstate judicial system"s interest in obtaining the most efficient resolution of controver sies," and (5) the shared interest of the several states in furthering funda mental substantive social policies." 50 However, in contrast to the burden of establishing sufficient minimum contacts with the forum state, which is placed on the plaintiff, the burden to persuade the court that the exercise of specific jurisdiction is unreasonable belongs to the defendant. 51 There fore, when a plaintiff has shown that a defendant has purposefully directed his activities in a forum state, the defendant must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable. 52 On the other hand, if a plaintiff presents a lesser showing of minimum contacts than would otherwise be required, the considera tions suggested in World Wide Volkswagen would sometimes serve to estab lish the reasonableness of jurisdiction. 53 Justice Brennan quietly reiterated this in the Burger King opinion to undermine the minimum contacts test so that a defendant's insufficient minimum contacts would not be fatal, per haps even doing so unethically. 54 Although subsequent cases have ignored this part of Burger King , the Supreme Court has not overruled that holding, 46. The two prongs of the alter ego" test are as follows: (1) that there is such unity of interest and ownership that the separate personalities of the two entities no longer exist and (2) that failure to disregard their separate identities would result in fraud or injustice. The first prong of this test has alternately been stated as requiring a showing that the parent controls the subsidiary to such a degree as to render the latter the mere instrumentality of the former." Bauman v. DaimlerChrysler Corp., 644 F.3d 909, 920 (9th Cir. 2011) (citing Doe v. Unocal Corp., 248 F.3d 915, 926 (9th Cir. 2001)). 47. See Daimler, 134 S. Ct. at 759 61. 48. See Goodyear, 131 S. Ct. at 2854. 49. Daimler, 134 S. Ct. at 762 n.20. The reasonableness test will only be invoked in a case where the court is exercising specific jurisdiction. When a corporation is deter mined to be genuinely at home" in the forum state, any second step inquiry would be superfluous." See id. 50. World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980). 51. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985). 52. Id. 53. Id. 54. See id.

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\jciprod01productnCCIN49 3CIN306.txtunknownSeq: 8 6 APR 17 14:45 752 Cornell International Law Journal Vol. 49 and it is therefore still good law. Notably, in situations where defendants purposefully engage in forum activities, defendants may still defeat spe cific jurisdiction if the exercise of jurisdiction would be unreasonable. 55 The Supreme Court in Asahi Metal Industry Co. v. Superior Court of California specifically addressed the reasonableness prong in evaluating the exercise of personal jurisdiction over a foreign country defendant. 56 Although the Asahi court did not agree on the minimum contact analysis, eight justices agreed that the assertion of personal jurisdiction over a Japa nese defendant was unreasonable and unfair, so as to violate the Due Pro cess Clause of the Fourteenth Amendment. 57 In Asahi, Gary Zurcher was severely injured and his wife was killed after the motorcycle that they were riding collided with a tractor on a Cali fornia highway. 58 Zurcher filed a products liability suit in California state court, alleging that the motorcycle tire, tube, and sealant were defective. 59 Zucher named Cheng Shin Rubber Industrial, Co., Ltd., the Taiwanese manufacturer of the tube, as a defendant. 60 Cheng Shin then filed a third party cross complaint against Asahi Metal Industry Co., Ltd., the Japanese corporation that manufactured the valve assembly of the tube. 61 Asahi moved to quash the service of this third party complaint, arguing that the California court could not assert personal jurisdiction over it. 62 In sup port of this motion, Asahi"s president submitted an affidavit indicating that Asahi never contemplated that it could be subject to suit in California through Asahi"s sales of tire valves to Cheng Shin in Taiwan. 63 The Califor nia court denied the motion and the Supreme Court of the United States granted certiorari. 64 When addressing the reasonableness prong, the Asahi court first con sidered the severe" burden California litigation would impose upon Asahi and noted that Asahi not only had to travel the distance between Japan and California, but also submit the dispute with Cheng Shin to a foreign nation"s judicial system. 65 The Court noted that he unique burdens placed upon one who must defend oneself in a foreign legal system should 55. Burger King, 471 U.S. at 477 78. Assertion of specific jurisdiction, which is determined to be unreasonable, would contradict the traditional notion o f "fair play and substantial justice." Id. at 476 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 320 (1945)). 56. See Asahi Metal Indus. Co. v. Super. Ct. of Cal., 480 U.S. 102, 113 15 (1987). 57. Id. at 116. Justice Scalia concurred with this portion of Justice O'Connor's opin ion, finding that there were constitutionally insufficient minimum contacts. Id. at 121 22. 58. Id. at 105. 59. Id. at 106. 60. Id. 61. Id. 62. Id. 63. Id. at 107. 64. Id. The case went to the Supreme Court of the United States after the Supre me Court of California reversed and discharged the writ issued by the Court of Appeal of the State of California, which commended the Superior Court to quash ser vice of sum mons. Id. at 107 08. 65. Id. at 114.

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\jciprod01productnCCIN49 3CIN306.txtunknownSeq: 9 6 APR 17 14:45 753 2016 Show Me the Money have significant weight in assessing the reasonableness of stretching th e long arm of personal jurisdiction over national borders." 66 The Court then assessed the interests of both the plaintiff and the forum and held that such interests played a slight role in the jurisdictional question over Asahi. 67 The court emphasized that Cheng Shin, as the third party plaintiff, had not demonstrated that it would be more conve nient to litigate its claim against Asahi in California rather than in Taiwan or Japan. 68 Finally, the Supreme Court was extremely concerned about the inter ests of the several states," . . . in the efficient judicial resolution of the dispute and the advancement of substantive police." 69 Given the interna tional components of the case, the Court explicitly held that in the interna tional context, the procedural and substantive interests of other nations in a court"s assertion of jurisdiction over an alien defendant as well as the Federal Government"s interest in its foreign relations policies, deserved a careful inquiry into the reasonableness of the assertion of jurisdiction. 70 Having conducted thorough analysis of the reasonableness prong in evalu ating the assertion of personal jurisdiction over Asahi, the Court had no difficulty concluding that the exercise of personal jurisdiction was unreasonable. 71 II. Revised Personal Jurisdiction over Foreign Nonparties Although the above discussed framework is well suited for determin ing whether a court could assert jurisdiction over a foreign defendant, the Supreme Court has not addressed specific jurisdiction over nonparties. 72 The case that comes closest is Philips Petroleum Co. v. Shutts , 73 in which the Court considered whether due process protection could be applied to a non defendant. 74 In that case, the defendant argued that the Kansas court lacked personal jurisdiction over absent non named class action plaintiffs, who automatically joined the case through a class opt out" notice and lacked any pre litigation contacts with the forum state. 75 The Supreme Court upheld the Kansas trial court"s assertion of personal jurisdiction over absent non named class action plaintiffs, reasoning that although the 66. Id. 67. Id. 68. Id. 69. Id. at 115. 70. Id. 71. Id. at 116. 72. Gucci Am., Inc. v. Bank of China (Gucci II), 768 F.3d 122, 136 (2d Cir. 2014). The preferred route for roping foreign nonparties into general jurisdict ion is specific jurisdiction, mainly because for a corporation, the paradigm forum for t he exercise of general jurisdiction is one in which the corporation is fairly regarded as at home. As a result, there would be many less qualified forums to subject foreign non parties to gen eral jurisdiction as compared to the number of forums to subject foreign nonparties to specific jurisdiction. 73. Philips Petroleum Co. v. Shutts, 472 U.S. 797 (1985). 74. See generally id. 75. Id. at 802.

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\jciprod01productnCCIN49 3CIN306.txtunknownSeq: 10 6 APR 17 14:45 754 Cornell International Law Journal Vol. 49 minimum contacts analysis was originally designed to protect defendants from litigation in a distant forum, 76 he Fourteenth Amendment does protect persons," not defendants."" 77 Specifically, the Court reasoned that the Due Process Clause does not and need not afford an absent class plain tiff as much protection from state court jurisdiction as it does an absent defendant in non class suit. 78 Therefore, a state places fewer burdens upon the former than it does upon the latter. 79 Only a minimum procedural due process protection, rather than minimum contacts, is required for a forum state to exercise jurisdiction over the claim of an absent class plaintiff. 80 In assessing the question whether federal courts may properly exer cise jurisdiction over a domestic nonparty, the courts have adapted the sim ilar minimum contacts test used for defendants. 81 In the international context, the Ninth Circuit in Reebok Int'l Ltd. v. McLaughlin concluded that district courts lack the specific personal jurisdiction to order foreign non party banks without contacts in the United States to comply with an asse t freeze injunction. 82 McLaughlin , however, does not provide much gui dance on how to conduct the minimum contacts analysis in the context of a foreign nonparty with only limited contacts in the forum state. First, the district court found that the foreign nonparty had a super contact" with the forum state, because defendant"s act of assisting in an injunction viola tion through aiding and abetting amounted to a contact, albeit significantly different from the traditional meaning of contact" under the minimum contacts framework. 83 Second, the Ninth Circuit held that the district court lacked specific personal jurisdiction mainly because of international comity considerations the court emphasized that the simple fact that the mandate of an injunction issued by a federal district court runs nation wide" did not apply to a situation where national of a foreign coun try . . . followed the law . . . of its own country . . . when it did acts within that country." 84 No other case has applied this analysis in the context of a foreign nonparty with only limited contacts in the forum state. 85 Law review articles have addressed this issue narrowly, determining the applica bility of specific jurisdiction over a nonparty when assessing the nonparty 76. Id. at 807. 77. Id. at 811. 78. Id. 79. Id. 80. Id. 81. Gucci Am., Inc. v. Bank of China (Gucci II), 768 F.3d 122, 137 (2d Cir. 2014). These courts first evaluate the relevance between the nonparty's cont acts with the forum state and the order at issue, and then decide whether asserting jurisdic tion for the pur pose of the order would be consistent with fair play and substantial justice. See, e.g., Application to Enforce Administrative Subpoenas Duces Tecum of the S.E.C . v. Knowles, 87 F.3d 413, 418 (10th Cir. 1996) (upholding specific jurisdiction wh ere the "subpoena enforcement action" at issue "ar out of c ontacts" with the forum). 82. See Reebok Int'l Ltd. v. McLaughlin, 49 F.3d 1387, 1391 95 (9th Cir. 1995). 83. See id. at 1391. 84. See id. at 1391, 1394. 85. Gucci II, 768 F.3d at 137.

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