[00:00:00] Speaker 02:
We'll call the next case, case number 234001, X Mission versus Peer Health Research.

[00:00:11] Speaker 02:
Counsel.

[00:00:15] Speaker 00:
May it please the Court, John Nielsen.

[00:00:16] Speaker 00:
For X Mission, I'd like to reserve four minutes, if I could, for remodel.

[00:00:20] Speaker 00:
I'd like to focus subject, of course, to this Court's questions on two things today.

[00:00:25] Speaker 00:
First of all, the express aiming requirement, and second of all, consent.

[00:00:30] Speaker 00:
On express aiming, this court was clear in Dudnikov that the focus of this element here is on the defendant's actions, what they knew and what they did.

[00:00:39] Speaker 04:
I'm having a little trouble hearing you.

[00:00:41] Speaker 04:
Could you bring the microphone a little closer to you and maybe just articulate as best you can?

[00:00:48] Speaker 04:
Thank you.

[00:00:49] Speaker 00:
Yes, Your Honor.

[00:00:52] Speaker 00:
This court was clear in Dudnikov that the focus of this element is on the defendant's intentions, what they

[00:01:01] Speaker 00:
knew and what they did.

[00:01:03] Speaker 00:
Pure Health had actual knowledge that they were sending emails to Utah residents because they keep track of what they call targets.

[00:01:14] Speaker 00:
That's a nice express aiming language of both the names of the email addresses, physical addresses, and IP addresses.

[00:01:23] Speaker 00:
They know exactly where this is going.

[00:01:25] Speaker 04:
I'm intrigued about it.

[00:01:27] Speaker 04:
They had records of where those email addresses went.

[00:01:31] Speaker 04:
And they personally sent some of those email addresses.

[00:01:35] Speaker 04:
Correct.

[00:01:36] Speaker 04:
And sometimes I know we say in cases a corporation is responsible for what its entire organization knows, including what's in the records.

[00:01:47] Speaker 04:
On the other hand, there is no evidence that anybody in the corporation had that aha moment of, look, we know we're going into Utah because we can make this match.

[00:02:01] Speaker 04:
I think we've attributed that match, even though there's no evidence of it.

[00:02:09] Speaker 04:
But I guess all I'm really asking is there is no evidence that anybody in the company made that aha connection in testimony before the court.

[00:02:17] Speaker 00:
Yeah, that the person actually sending the emails knew that.

[00:02:22] Speaker 00:
You could call it actual knowledge that the left hand doesn't know what the right hand is doing, or maybe they do.

[00:02:26] Speaker 00:
That's just kind of a non-event.

[00:02:28] Speaker 00:
But it's at least constructive knowledge.

[00:02:30] Speaker 04:
And when you get to constructive knowledge, then it's easy.

[00:02:34] Speaker 04:
Is constructive knowledge sufficient?

[00:02:36] Speaker 00:
Yes.

[00:02:37] Speaker 00:
And I've cited cases for that.

[00:02:40] Speaker 00:
And this was active, not passive.

[00:02:42] Speaker 00:
In the internet context, it really matters whether you're just posting something online for all the world to see, and you don't know who's coming and visiting, or at least you don't control that.

[00:02:50] Speaker 00:
Or whether you're expressly, again, targeting here, aiming at somebody in a particular place.

[00:02:55] Speaker 00:
This is active.

[00:02:57] Speaker 00:
Again, showing express aiming.

[00:02:58] Speaker 02:
I just, like, do question the...

[00:03:00] Speaker 02:
I understand how you say they're keeping track of targets.

[00:03:05] Speaker 02:
And what that means is they're keeping track of people who have previously purchased a product from them, their actual customers.

[00:03:15] Speaker 02:
So they're essentially targeting customers with their future emails, with their direct emails.

[00:03:24] Speaker 02:
But does targeting customers

[00:03:27] Speaker 02:
Can you explain how targeting customers, past customers, equates with targeting within the state, essentially, targeting because they're in Utah?

[00:03:39] Speaker 00:
Sure.

[00:03:40] Speaker 00:
So this court said in Far West that solicitation is evidence of express aiming, is some evidence.

[00:03:47] Speaker 00:
It's not dispositive, of course, but it certainly is.

[00:03:49] Speaker 00:
It's something, and it's important here.

[00:03:53] Speaker 00:
This also goes a little bit to the consent point, and that is

[00:03:57] Speaker 00:
The response from Peer Health was, well, and this is what the district court essentially believed in its ruling, they consented to receive emails.

[00:04:05] Speaker 00:
Therefore, there can be no cause of action for these emails.

[00:04:08] Speaker 00:
But I would note, if you look at 7704 sub, there are a few of them, sub 4A, 5A, and D2.

[00:04:22] Speaker 00:
Consent, affirmative consent, is only a defense, a statutory defense for three things.

[00:04:30] Speaker 00:
One is for porn emails.

[00:04:32] Speaker 00:
One, another is for emails that contain whether or not something is an ad, and the other is for opt-out emails.

[00:04:43] Speaker 00:
Consent is not a defense to any other violation of the Cannes Spam Act.

[00:04:48] Speaker 00:
And that includes, as we've argued in our brief, consent to receive emails is not consent to receive tortious emails.

[00:04:54] Speaker 00:
It's not consent to receive deceptive emails, any more than it would be consent to receive a virus or a phishing email or something like that.

[00:05:02] Speaker 00:
it necessarily means that the emails themselves must be lawful.

[00:05:07] Speaker 02:
Well, I guess I'm still not hearing your answer.

[00:05:10] Speaker 02:
I mean, in Trader, we use the language basically the defendant has to deliberately direct its message, add an audience in the forum state, and intend harm to the plaintiff occurring primarily or particularly in the forum state.

[00:05:26] Speaker 02:
And I guess I'm not understanding or I'm not making the connection between the fact that they

[00:05:32] Speaker 02:
They have these physical addresses for the people who have purchased products from them.

[00:05:38] Speaker 02:
That's apparently how they get the address.

[00:05:42] Speaker 02:
But that's the reason that they're targeting them is because they've opted in, essentially, not because they're in Utah.

[00:05:54] Speaker 00:
Well, two things.

[00:05:55] Speaker 02:
Is that a distinction that's valid as to why they target these folks?

[00:06:01] Speaker 00:
Well, this I understand is the essence of pure health's argument, which is we're not targeting states, we're targeting customers.

[00:06:06] Speaker 02:
But when you know exactly where the... I would like you to respond to that argument.

[00:06:09] Speaker 00:
Sure.

[00:06:10] Speaker 00:
When you're targeting somebody in a particular state and soliciting business from that state and sending unlawful emails to that state, then the essence is the emails themselves are the horn.

[00:06:22] Speaker 00:
This is not like a lot of cases where emails are evidence of another transaction, like here's our negotiating a contract that we eventually signed in X state or X form or whatever.

[00:06:31] Speaker 00:
The emails themselves are the harm.

[00:06:34] Speaker 00:
So this is much like Calder in that respect, in the sense that the Florida company is writing about somebody in California where the harm is going to take place.

[00:06:42] Speaker 00:
This is a Delaware company with its principal place of business in Wyoming, or vice versa, rather.

[00:06:47] Speaker 00:
I think it's actually Virginia, not Delaware.

[00:06:50] Speaker 00:
But regardless, other states targeting people within Utah and causing the harm in Utah.

[00:06:58] Speaker 02:
Well, is it also partly, is your argument that because they have had these sales in Utah, they've been doing business in Utah, and they know that because they have had these sales and they have these physical addresses.

[00:07:15] Speaker 02:
And so they are essentially targeting customers in Utah based on their prior business in Utah.

[00:07:24] Speaker 02:
Yes, and they're paying sales tax on those things and all that sort of thing.

[00:07:28] Speaker 02:
kind of how it connects is because they know where they've been doing business.

[00:07:34] Speaker 00:
Yes, correct.

[00:07:35] Speaker 00:
And they know where these people are, and they want to get more business from these people.

[00:07:38] Speaker 01:
And is that enough under Fluent that for purposes of specific jurisdiction here, the fact that they knew that the newsletter emails were going to Utah, they had knowledge, whether it's constructive or actual, is that enough?

[00:07:53] Speaker 00:
There are two ways that this differs from Fluent, and maybe even a third.

[00:07:56] Speaker 00:
The first is that these were direct emails sent by Pure Health itself, not by these third-party affiliates.

[00:08:02] Speaker 00:
The second reason is that they knew that they were targeting people in Utah.

[00:08:06] Speaker 00:
The third reason is that the business model influence was very different than the Pure Health business model.

[00:08:10] Speaker 00:
The Pure Health business model, the record says that they get 90% of their sales from these newsletter emails that the company sends out itself to past customers, trying to make them future customers, get them to come back and buy more of their products.

[00:08:23] Speaker 00:
But Fluent was much more in the information business.

[00:08:26] Speaker 00:
Fluent was about gathering things, using third parties to sell on the market to whoever was interested in marketing to people, not in particular states.

[00:08:37] Speaker 00:
So I think that's three reasons that Fluent is distinguishable.

[00:08:41] Speaker 00:
Is it enough?

[00:08:42] Speaker 00:
I think it's enough that they, unlike Fluent,

[00:08:45] Speaker 00:
one were sending them themselves and two knew exactly where these people were to whom they were sending these things.

[00:08:50] Speaker 04:
Well, I suppose there are lots of cases that say that you've directed your activity into a state when, in fact, you just want to get customers.

[00:09:00] Speaker 04:
The purpose was not, let's get customer.

[00:09:03] Speaker 04:
I mean, if you buy a marketing ad in California, you're clearly focusing on the fact that it's geologically located in California.

[00:09:11] Speaker 04:
But if you're addressing just an existing customer, you don't really care where that customer is.

[00:09:16] Speaker 04:
But it is still directed activity that you know to be in a state.

[00:09:20] Speaker 04:
And you know it's going to have an impact on that state, even though that's not your motive.

[00:09:23] Speaker 04:
There's knowledge that you have directed activity.

[00:09:27] Speaker 04:
But all this discussion of,

[00:09:29] Speaker 04:
Directed activity makes me want to go to a second test, which is harmful effects.

[00:09:38] Speaker 04:
Are you arguing both as a constitutional ground for jurisdiction here?

[00:09:43] Speaker 00:
No, this is just harmful effects.

[00:09:45] Speaker 04:
Yeah.

[00:09:46] Speaker 00:
Yes.

[00:09:47] Speaker 04:
Well, also directed activity could be a justification.

[00:09:50] Speaker 04:
But you're relying primarily on harmful effects.

[00:09:53] Speaker 04:
That's correct.

[00:09:53] Speaker 04:
Well, on harmful effects, then you look at the email monitoring and the effect

[00:10:00] Speaker 04:
on the web information, well, the email server in the state, I suppose.

[00:10:09] Speaker 00:
Yes, and that's why can spam give standing to internet service providers like Xmission, because the harms are visited on Xmission by having to upgrade and expand its infrastructure to deal with all these spam emails, deal with customer complaints.

[00:10:22] Speaker 04:
So if you're focusing on harmful effect, the directed activity, which would be an alternative ground,

[00:10:27] Speaker 04:
It really doesn't go to harmful effect.

[00:10:31] Speaker 04:
I mean, because you can have a harmful effect whether you direct the activity there or not, if you know that the harmful effect will be there.

[00:10:37] Speaker 00:
Well, the test under Calder that this court has elaborated for harmful effects includes both express aiming and causing harm in the jurisdiction in the forum stage.

[00:10:53] Speaker 00:
If there are no further questions, I'll reserve the balance.

[00:10:55] Speaker 01:
I have one more question.

[00:10:56] Speaker 00:
Oh, yes.

[00:10:56] Speaker 01:
We agree with you on the newsletter emails.

[00:10:58] Speaker 01:
Do we need to reach the opt-out emails?

[00:11:00] Speaker 00:
No.

[00:11:01] Speaker 00:
You don't.

[00:11:01] Speaker 00:
Just need one.

[00:11:04] Speaker 01:
Thank you.

[00:11:04] Speaker 03:
Good morning.

[00:11:04] Speaker 03:
May it please the court?

[00:11:06] Speaker 03:
Scarlett Smith on behalf of Pure Health Research.

[00:11:10] Speaker 03:
This case involves exhibition's failure to do the bare minimum that was required by traditional notions of fair play and substantial justice.

[00:11:20] Speaker 03:
That is, to allege or make

[00:11:23] Speaker 03:
non-speculative, non-conclusory allegations that would support jurisdiction.

[00:11:29] Speaker 03:
Utah and federal constitutions require ex-mission to show that Pure Health had minimum contacts with Utah.

[00:11:36] Speaker 03:
That minimum contacts test requires the showing of purposeful development or purposeful direction actions, and that the injury sustained arise from those forum-directed activities.

[00:11:51] Speaker 03:
Now, just as

[00:11:54] Speaker 03:
Judge, I will just discuss.

[00:11:56] Speaker 03:
The only framework that is at issue in this case is the harmful effects test.

[00:12:03] Speaker 03:
The ex-mission has abandoned the argument with regards to market exploitation.

[00:12:09] Speaker 03:
With regards to the harmful effects test, we've looked to three elements, right?

[00:12:17] Speaker 03:
Whether there was an intentional act, whether it was expressly aimed at the state, not

[00:12:22] Speaker 03:
not the recipient, not necessarily the plaintiff, but whether it was aimed at the forum.

[00:12:29] Speaker 03:
And then we looked to whether the brunt of the injuries could be expected to have been a consequence in that forum.

[00:12:35] Speaker 03:
Now, as my friend here pointed out, the main issues on appeal really are the expressly aimed element and the brunt of the injuries element.

[00:12:46] Speaker 03:
And as the briefing points out, there's just two sets of emails that really are at issue in this case, and that is the 655 emails that purportedly have misleading subject lines, and the 85 emails that were purportedly submitted after the opt-out deadline.

[00:13:05] Speaker 03:
Now, the 85 can be handled pretty quickly.

[00:13:11] Speaker 03:
It's after...

[00:13:14] Speaker 03:
plaintiff has made a non-conclusory, non-speculative allegation complaint.

[00:13:20] Speaker 03:
If the defendant puts forth an affidavit that contradicts those allegations, it's then to the plaintiff to refute that.

[00:13:28] Speaker 03:
Otherwise, a genuine dispute of fact does not exist.

[00:13:31] Speaker 03:
And with regards to those 85 emails,

[00:13:35] Speaker 03:
There can be no doubt.

[00:13:37] Speaker 03:
The evidence that was put forward is that Pure Health had no control, no agency control over those 85 emails that were sent or identified as being sent after the opt-out date.

[00:13:54] Speaker 01:
Is there nothing in Mr. Ashdown's declaration that contradicts that or creates a dispute about that?

[00:14:00] Speaker 03:
No, not a genuine dispute.

[00:14:01] Speaker 03:
No, ma'am.

[00:14:03] Speaker 03:
What it says is,

[00:14:05] Speaker 03:
There are 655 that we know came from these three domains that we know come directly from Pure Health.

[00:14:13] Speaker 03:
Then it goes into the affiliate discussion and goes on to have a passive discussion of, we also have these Pure Health emails on our servers, these 85 Pure Health emails.

[00:14:27] Speaker 03:
It doesn't say that they're from those domains that are recognized as directly from Pure Health.

[00:14:34] Speaker 03:
and it doesn't identify them as being set directly, but rather they just merely exist and they just happen to be pure health emails generally.

[00:14:45] Speaker 03:
So turning to the, and without showing that they came from pure health directly, that there can be no causal connection, right?

[00:14:55] Speaker 03:
So that can be pretty much summed up there.

[00:14:58] Speaker 03:
With regards to the 655 emails,

[00:15:01] Speaker 03:
When looking at this expressly aimed factor in the harmful effects test, we focus on the defendant's intent.

[00:15:08] Speaker 03:
And I think this goes to much of the discussion that was had, right?

[00:15:12] Speaker 03:
Although X Mission argues that consent is not relevant, we respectfully disagree.

[00:15:19] Speaker 03:
It would certainly be relevant to whether or not the Pure Health's intention was to reach out to Utah,

[00:15:29] Speaker 03:
or whether its intention was to reach out to folks who have invited this communication by opting in to receive additional information.

[00:15:38] Speaker 03:
Now, there's no suggestion that Pure Health just merely sent out emails to only Utah customers either.

[00:15:46] Speaker 03:
What we know is this is a nationwide campaign.

[00:15:49] Speaker 03:
So, in order for Pure Health

[00:15:54] Speaker 03:
this to pass muster, I think you'd have to say that Pure Health knew that this many were going to Utah, and that it had some sort of conscious regard for- But didn't it know?

[00:16:07] Speaker 01:
I mean, didn't it know the customers that were in Utah, the former customers were in Utah, and their addresses, and that the emails were going to them?

[00:16:15] Speaker 01:
Why is that not enough?

[00:16:16] Speaker 03:
I think that what this goes to is the discussion was previously had, which is whether there was that aha moment, right?

[00:16:24] Speaker 03:
They're relying on a constructive knowledge.

[00:16:26] Speaker 03:
There is no evidence that we actually look to those addresses.

[00:16:30] Speaker 03:
Frankly, there's no evidence that these folks actually resided at those addresses.

[00:16:34] Speaker 04:
What we know is... It's more than constructive knowledge.

[00:16:36] Speaker 04:
I mean, the corporation, Quad Corporation, had actual knowledge in its files.

[00:16:43] Speaker 04:
It had actual knowledge that a certain number of these people were in Utah.

[00:16:47] Speaker 04:
So I don't see it as a constructive knowledge.

[00:16:51] Speaker 04:
Here's an interesting question of whether there's that aha moment.

[00:16:54] Speaker 04:
But they had clearly constructive knowledge that they were sending to people in Utah.

[00:17:01] Speaker 03:
Your Honor, yes.

[00:17:02] Speaker 03:
They had knowledge.

[00:17:03] Speaker 03:
Or actual knowledge.

[00:17:04] Speaker 03:
That there was physical addresses associated with some of these people that were in Utah.

[00:17:09] Speaker 03:
But what they weren't looking for was their physical addresses.

[00:17:13] Speaker 03:
And mind you, it's pure speculation about whether they actually lived there or whether they had products sent there or whether that was just merely a billing address, right?

[00:17:21] Speaker 03:
These are pretty attenuated ties.

[00:17:23] Speaker 03:
But nevertheless, this is where the intent comes in.

[00:17:26] Speaker 03:
Pure Health intended to send to customers who indicated that they wanted more information via email.

[00:17:33] Speaker 03:
And what they looked to and what they targeted was customers

[00:17:37] Speaker 03:
who wanted additional information via email.

[00:17:40] Speaker 04:
You know, that just isn't surprising, though.

[00:17:43] Speaker 04:
I mean, if I'm a seller and I'm trying to find buyers, what I'm interested in is buyers.

[00:17:49] Speaker 04:
Absolutely.

[00:17:49] Speaker 04:
And General Motors probably would be perfectly happy to sell every one of their cars to people that lived in Vermont, because it would certainly save their delivery costs.

[00:18:01] Speaker 04:
They just put them all on one big barge.

[00:18:03] Speaker 04:
So they don't really care.

[00:18:06] Speaker 04:
When they know that the people they're looking for, every seller is looking for customers.

[00:18:12] Speaker 04:
But when they know their customers are in a state and impacting that state, then you have long-arm jurisdiction justified.

[00:18:21] Speaker 03:
Yes and no.

[00:18:23] Speaker 03:
This is why this comes to this express aimed element in the regards that this is about the quality and quantitative contacts, right?

[00:18:35] Speaker 03:
What we know from the 1870 case that was recently decided here in the 10th Circuit and from Dudnikoff and from Schrader is that it's not enough that you just know that someone's going to be affected or that they have connections with the state.

[00:18:51] Speaker 03:
It's not enough.

[00:18:52] Speaker 03:
You need something more, especially in the context, in these unique contexts of emails.

[00:18:58] Speaker 03:
And as Mr. Nelson pointed out, this is a case

[00:19:02] Speaker 03:
that's just about the product of an actual email, right?

[00:19:05] Speaker 03:
And so if you are reaching out as far and wide as you can, but your intention is to reach out to those and those that are already customers, the knowledge that some may be in Utah is just not enough.

[00:19:21] Speaker 03:
And that's, if it were, it would really just erase all geographical bounds with regards to jurisdiction in this day and age in which

[00:19:31] Speaker 03:
All this information is virtually available by anybody.

[00:19:34] Speaker 01:
So your argument focus, what you're saying now, if I understand correctly, is as to the expressly aimed part of the harmful effects test, right?

[00:19:41] Speaker 01:
I mean, are you saying that we can't say that your client had any express aim because it just was intending to send to customers, not to Utah, just it was happenstance that they were in Utah?

[00:19:55] Speaker 03:
Absolutely.

[00:19:56] Speaker 03:
Yes.

[00:19:56] Speaker 01:
And that's your position.

[00:19:58] Speaker 01:
And what is your best case to support that position?

[00:20:01] Speaker 03:
I think that would be 1870.

[00:20:03] Speaker 03:
I think it would be ex mission versus fluent is similar.

[00:20:08] Speaker 03:
And to some extent, Trader supports that as well.

[00:20:12] Speaker 04:
Would you give us that?

[00:20:14] Speaker 04:
I know that's in the briefs too, but just give us that.

[00:20:16] Speaker 03:
1870.

[00:20:17] Speaker 03:
Sorry, which one were you referring to?

[00:20:18] Speaker 04:
Ex mission is what?

[00:20:19] Speaker 03:
Ex mission of the fluent is?

[00:20:22] Speaker 04:
Oh, yeah, nevermind.

[00:20:24] Speaker 04:
It's kind of the meat.

[00:20:25] Speaker 04:
You cite that enough that we know that.

[00:20:26] Speaker 04:
Yeah, we cite that quite a bit.

[00:20:28] Speaker 03:
I think it probably 1870, which is one that's not much discussed.

[00:20:32] Speaker 03:
Okay, maybe not.

[00:20:34] Speaker 03:
But even if you're not satisfied... What happened in 1870?

[00:20:40] Speaker 03:
To be honest, I'm conflating them.

[00:20:41] Speaker 03:
You said it was your best case, so I'm wondering what... Well, to be honest, this is the one I believe is with regards to

[00:20:51] Speaker 03:
I can't remember if it's the Oklahoma one or the Colorado one.

[00:20:53] Speaker 03:
I'll be honest, I don't remember.

[00:20:55] Speaker 03:
I've been looking at a lot of cases over the last few days.

[00:20:59] Speaker 03:
What we knew is there's a trend towards.

[00:21:02] Speaker 02:
Well, can I interrupt you?

[00:21:03] Speaker 02:
Yeah, absolutely.

[00:21:04] Speaker 02:
I wanted to ask about Schrader, because you said Schrader was a good case.

[00:21:07] Speaker 02:
And I understand Schrader has that language about deliberately directing the message to the state.

[00:21:13] Speaker 02:
But Schrader also said that if the plaintiff does not show that the defendant otherwise knew where the recipient was located, the email itself doesn't demonstrate purposeful direction.

[00:21:27] Speaker 02:
Here, we have that case.

[00:21:29] Speaker 02:
We have that case where the defendant does know where the recipient is located.

[00:21:34] Speaker 02:
And it's, traitor at least, seemed to suggest that that's enough.

[00:21:39] Speaker 03:
It does seem to suggest that, you're right.

[00:21:41] Speaker 03:
But that's an older case.

[00:21:43] Speaker 03:
And I think that the cases that have come since then, Exme should be fluent in 1870.

[00:21:48] Speaker 02:
We wouldn't rely heavily on Schrader.

[00:21:53] Speaker 01:
Yes, it does.

[00:21:53] Speaker 01:
The big problem in fluent was they didn't know that they were doing it.

[00:21:56] Speaker 01:
That was the main thing.

[00:21:57] Speaker 01:
Seemed to suggest it.

[00:21:59] Speaker 04:
That was exactly what fluent said.

[00:22:04] Speaker 04:
The court said, well, the reason there is no jurisdiction there was because

[00:22:09] Speaker 04:
Exclamation, quote, fail to show that Fluent knew that any email recipient resided in Utah.

[00:22:18] Speaker 04:
I mean, if you think Fluent is your best case, I think that that's going to be a problem for you.

[00:22:24] Speaker 03:
It may be, but I don't think so.

[00:22:26] Speaker 03:
I think the problem is that this stems all the way back to Burger King and Waldo and all of these cases that say,

[00:22:37] Speaker 03:
Just the plaintiff's connections with the state is not enough.

[00:22:42] Speaker 03:
Remember, this is directed at the forum, not the recipient or the plaintiff.

[00:22:48] Speaker 03:
It's not just about how these people are connected with the state.

[00:22:55] Speaker 03:
It's about a directed activity to the forum.

[00:23:00] Speaker 03:
And here, there's nothing that suggests that any intent.

[00:23:03] Speaker 03:
And remember, expressly aimed is concerned with the intent of the defendant.

[00:23:08] Speaker 03:
not with just the consequences or the happen stats or attenuated connection with the state, but rather the intention to go there.

[00:23:17] Speaker 02:
What would be an example of that?

[00:23:19] Speaker 02:
Could you give me an example of where an email would be directed to the foreign?

[00:23:24] Speaker 03:
Absolutely.

[00:23:25] Speaker 03:
This would actually go to one of the cases that we cite.

[00:23:29] Speaker 03:
I think that there'd be a couple of different circumstances.

[00:23:31] Speaker 03:
For example,

[00:23:33] Speaker 03:
This is the one regarding eBay, I believe, but if your conduct is to, you know, solicit, let's put it in this context, solicit supplements that are specifically for skiers in the Wasatch Mountains, you know, and we have research on things for folks in the Wasatch Mountains, I think that you would likely have a case that says, yeah, this is directed to folks in Salt Lake City who want

[00:24:01] Speaker 03:
you know, to want to improve their ski abilities versus, you know, the folks in Vermont and the folks in Florida and Texas.

[00:24:10] Speaker 03:
Or I think you could probably even point to, and remember, there was discovery on this issue.

[00:24:15] Speaker 03:
There were depositions.

[00:24:17] Speaker 02:
I think- That would be very solemn in the case of mass emails that you would have anything focused is what you're saying.

[00:24:23] Speaker 02:
Basically, you're not going to have personal jurisdiction in most any case of mass emailing.

[00:24:28] Speaker 03:
I don't know that that's true.

[00:24:29] Speaker 03:
I mean, certainly some of those facts could come out in doing the research.

[00:24:33] Speaker 03:
I mean, after all, the example emails in this case are with regards to vision improvement and things like that.

[00:24:39] Speaker 03:
And when you click on the email, you get a link to research that's been conducted.

[00:24:44] Speaker 03:
Maybe the person who did the research is in Utah, at the University of Utah.

[00:24:48] Speaker 03:
And they have a focus toward that.

[00:24:51] Speaker 03:
I think there could be maybe an argument there.

[00:24:53] Speaker 03:
Or perhaps there's just, hey, we know that there's a lot of MLMs in Utah, and we know those folks like to buy supplements.

[00:25:01] Speaker 03:
Let's target, there's maybe some evidence that Pure Health is targeting that specific community.

[00:25:08] Speaker 03:
I think that could certainly be something, but that's not here.

[00:25:12] Speaker 03:
That's not the case.

[00:25:13] Speaker 03:
And I'm about out of time, but if the court's not satisfied with the expressly aimed

[00:25:20] Speaker 03:
element of this case, it just needs to turn to the next element, which is, did pure health expect that the substantial brunt of injury would occur in Utah, right?

[00:25:32] Speaker 03:
And this is just concerned with the consequences of its actions, but if you have a national mass email,

[00:25:39] Speaker 03:
I mean, there's nothing to suggest that this is the bulk of where the emails have landed, so why would we ever expect that the brunt of the injury would occur here?

[00:25:49] Speaker 03:
Especially in a context like this, where it's just the email itself that's being alleged to be wrong.

[00:25:54] Speaker 04:
If you require the brunt, meaning the majority of the impact being in one state,

[00:26:00] Speaker 04:
You're going to result in a rule that every nationwide company that sells nationwide, every car company, every company that sells nationwide, is not going to have jurisdiction.

[00:26:14] Speaker 04:
Because there won't be any state that they will expect a substantial brunt of the impact would be in a particular state.

[00:26:21] Speaker 03:
I don't agree with that.

[00:26:22] Speaker 03:
I mean, I think, let's give an example of Google.

[00:26:26] Speaker 03:
Perhaps, I would imagine that Google's probably one of the largest servers in the world.

[00:26:32] Speaker 03:
They're located in a specific place.

[00:26:35] Speaker 03:
It's possible that you could look to all email addresses and find out that 60% of the emails sent out went to a Google email.

[00:26:44] Speaker 03:
It may be fair to say that, oh, you'd have objective evidence to suggest that the brunt of any injury of having this stuff on your server would occur at Google.

[00:26:57] Speaker 03:
That's not here.

[00:26:58] Speaker 03:
We don't know how many they have.

[00:26:59] Speaker 03:
This is a very local, small internet provider, and frankly we don't know based on the full evidence of how many emails were sent out what percentage this was.

[00:27:11] Speaker 03:
If I recall, it's a very small, like half a percent, a percent at most.

[00:27:16] Speaker 03:
So to say that the brunt of it is there, but then you can also get to, and I'm over my time, so I'm happy to see this, but I'm happy to answer any more questions if you have any.

[00:27:27] Speaker 00:
Marketing has undergone a sea change in recent years.

[00:27:36] Speaker 00:
It used to be you'd take out an ad in a magazine that most of your potential customers would read and hope that they would buy this thing.

[00:27:45] Speaker 00:
It's gone from the general like that way to the specific.

[00:27:48] Speaker 00:
Now it's about, in Fluent, for example, they talked about

[00:27:52] Speaker 00:
This court talked about mass marketing to unidentified individuals.

[00:27:55] Speaker 00:
This is targeted marketing to identified individuals knowing exactly where they are.

[00:27:59] Speaker 00:
This is how things have shifted, and when that's the sort of business model you have, it's not unfair to subject you to jurisdiction where those emails themselves cause the harm.

[00:28:14] Speaker 00:
She said her best case was fluent.

[00:28:16] Speaker 00:
I've already distinguished that, but I would like to talk about those a little bit.

[00:28:19] Speaker 00:
Judge Moritz, you asked about 1870.

[00:28:21] Speaker 00:
This was the case involving a Wyoming plaintiff who was dealing with a defendant who lived in Great Britain or at least was doing a lot of business in Great Britain and Europe.

[00:28:33] Speaker 00:
And this court said, it's not enough just that the plaintiff lived in Wyoming and that the defendant knew that the plaintiff lived in Wyoming.

[00:28:43] Speaker 00:
These concerned all sorts of financial transactions occurring all over the world.

[00:28:47] Speaker 00:
Wyoming was not the focus, the end.

[00:28:49] Speaker 00:
That's very different than what we have here.

[00:28:52] Speaker 00:
And Schrader, there you had a company that knew... It didn't involve emails?

[00:28:57] Speaker 00:
No, I don't believe it involved emails.

[00:28:59] Speaker 00:
In Schrader, you had a company that was, at first, inadvertently routing its internet traffic through Oklahoma servers.

[00:29:06] Speaker 00:
And then the people owning the Oklahoma servers said, hey, you're using our servers.

[00:29:10] Speaker 00:
Don't do that.

[00:29:11] Speaker 00:
And they kept doing it.

[00:29:12] Speaker 00:
And this course said, well, that's enough for personal direction.

[00:29:15] Speaker 00:
They know that this is going through Oklahoma.

[00:29:18] Speaker 00:
And they're not doing anything about it.

[00:29:21] Speaker 00:
Judge Bell, you were asking a little bit about, and I think some of your questions to both me and to opposing counsel here, deal with a distinction that this court hasn't made, but the Ninth Circuit has made that I think helps capture the idea a little bit.

[00:29:35] Speaker 00:
And that is this court has used the terms purposeful availment and purposeful direction interchangeably.

[00:29:41] Speaker 00:
They're essentially synonyms.

[00:29:43] Speaker 00:
The Ninth Circuit kind of divides those two.

[00:29:46] Speaker 00:
It says purposeful availment is more about the market

[00:29:51] Speaker 00:
Are you availing yourself of the privilege of doing business in that market?

[00:29:55] Speaker 00:
And purposeful direction more is like, are you sending?

[00:29:58] Speaker 00:
It's basically a tort versus contract kind of idea.

[00:30:02] Speaker 00:
Purposeful availment is about contracts.

[00:30:04] Speaker 00:
Purposeful direction is about torts.

[00:30:06] Speaker 00:
This is much more like a tort case because the emails themselves are causing harm.

[00:30:11] Speaker 00:
If Pure Health were correct that it's not enough just that you know that somebody's in a particular state and you're directing your activity there and causing harm there, then

[00:30:20] Speaker 00:
Even if they had sent computer viruses along with those emails or a phishing email, then the jurisdiction would not be proper.

[00:30:26] Speaker 00:
But that just flies in the face of tort law.

[00:30:30] Speaker 00:
It flies in the face of fairness and notice.

[00:30:32] Speaker 00:
Of course, they should know that if they send something harmful to a jurisdiction that actually causes harm there, it's not unfair to subject them to personal jurisdiction.

[00:30:43] Speaker 00:
If there are no further questions, I use this court to reverse.

[00:30:47] Speaker 02:
Thank you, counsel.

[00:30:47] Speaker 02:
Thanks to both counsel.

[00:30:49] Speaker 02:
The arguments have been very informative and helpful.

[00:30:52] Speaker 02:
And the case will be submitted, and counsel are excused.

[00:30:56] Speaker 02:
We are going to take about a 10-minute break, till about 10.25.