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CMU ISR 08732 - UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

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FOR PUBLICATIONUNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT YAHOO! INC., a Delawarecorporation,Plaintiff-Appellee,No. 01-17424v.D.C. No.LA LIGUE CONTRE LE RACISME ETCV-00-21275-JFL’ANTISEMITISME, a Frenchassociation; L’UNION DESOPINIONETUDIANTS JUIFS DE FRANCE, aFrench association,Defendants-Appellants.Appeal from the United States District Courtfor the Northern District of CaliforniaJeremy Fogel, District Judge, PresidingArgued and SubmittedDecember 2, 2002—San Francisco, CaliforniaFiled August 23, 2004Before: Warren J. Ferguson, Melvin Brunetti, andA. Wallace Tashima, Circuit Judges.Opinion by Judge Ferguson;Dissent by Judge Brunetti11921COUNSELRichard A. Jones, Coudert Brothers, San Jose, California, forthe defendant-appellant. Neil S. Jahss, O’Melveny & Myers, Los Angeles, California,(briefed), and Robert C. Vanderet, Los Angeles, California,(argued), for the plaintiff-appellee. Jodie L. Kelley, Jenner & Block, Washington, D.C. (briefed),for amici curiae Chamber of Commerce of the United States,et al. 11924 YAHOO! INC. v. LA LIGUE CONTRE LE RACISMEAnn Brick, American Civil Liberties Union Foundation ofNorthern California, San Francisco, California (briefed), foramici curiae Center for Democracy and Technology, et al. OPINIONFERGUSON, Circuit Judge: Appellants La Ligue Contre Le Racisme EtL’Antisemitisme (“LICRA”) and L’Union Des Etudiants JuifsDe France (“UEJF”) appeal the District Court’s grant of sum-mary judgment in favor of Appellee Yahoo! Inc. (“Yahoo!”).Appellants contend that the District Court lacked jurisdiction,that the case was not ripe, and that the District Court shouldhave abstained from hearing the case. We hold that there wasno personal jurisdiction over Appellants and reverse the Dis-trict Court. BACKGROUNDYahoo! is an Internet service provider which has its princi-pal place of business in Santa Clara, California. Its Americanwebsite, www.yahoo.com, targets U.S. users and providesmany services, including auction sites, message boards, andchat rooms, for which Yahoo! users supply much of the con-tent. Nazi discussions have occurred in Yahoo!’s chat roomsand Nazi-related paraphernalia have appeared for sale on itsauction website. Section R645-2 of the French Criminal Code bans exhibi-tion of Nazi propaganda for sale and prohibits French citizensfrom purchasing or possessing such material. Although aYahoo! subsidiary, Yahoo! France, operates www.yahoo.fr inFrance and removes all Nazi material from its site to comportwith French law, French users can still access the AmericanYahoo! website that carries the Nazi-related discussions andauction items. 11925YAHOO! INC. v. LA LIGUE CONTRE LE RACISMEIn April 2000, LICRA and UEJF discovered that they couldaccess www.yahoo.com in France and view Nazi materials.On April 5, 2000, LICRA sent a cease-and-desist letter toYahoo! in Santa Clara, California, demanding that Yahoo!prohibit the display of the Nazi materials because the practicewas illegal in France. On approximately April 10, LICRAfiled a complaint against Yahoo! in a French court, allegingviolations of the Nazi Symbols Act. On April 20, UEJF fileda second complaint against Yahoo!, alleging further violationsof French law because of the Nazi-related postings. Appel-lants served Yahoo! with the complaint by using the UnitedStates Marshals Service pursuant to the service-abroadrequirements of the Hague Convention. Yahoo! challengedthe French court’s jurisdiction, but the court found jurisdic-tion was proper under Section 46 of France’s New Code ofCivil Procedure. Both LICRA and UEJF litigated the cases inFrance. On May 22, 2000, the French court, at the request ofLICRA and UEJF, issued an order requiring Yahoo! — sub-ject to a fine of 100,000 Francs (approximately $13,300) perday — to destroy all Nazi-related messages, images, and textstored on its server, particularly any Nazi relics, objects,insignia, emblems, and flags on its auction site, and to removeany excerpts from Mein Kampf and Protocole des Sages deSion, books promoting Nazism. The order also requiredYahoo! to remove from its browser directories, which areaccessible in France, the headings “negationists” and anyequivalent category under the heading “Holocaust.” TheFrench court further ordered Yahoo! to take all necessarymeasures to prohibit access to the Nazi artifacts on its site andto warn that viewing such material violates French law. OnNovember 20, the French court reaffirmed its May 22 order,giving Yahoo! three months to comply with the first order andreiterating that fines would accrue daily if Yahoo! did notcomply with the order. Appellants used the United StatesMarshals Service to serve the order on Yahoo! in Santa Clara,California. The imposition of penalties is provisional in11926 YAHOO! INC. v. LA LIGUE CONTRE LE RACISMEFrance and cannot be imposed without further court proceed-ings. Yahoo! chose not to pursue its appeal in France, and itsright to appeal expired on February 7, 2001. Yahoo! has not fully complied with the French orders.Some items, such as copies of Mein Kampf, coins, andstamps, are still available through www.yahoo.com. Yahoo!has, however, modified its hate-speech policy to preclude useof its services to promote groups that are known for takingviolent positions against others because of race or similar fac-tors. Yahoo! also removed Protocole des Sages de Sion fromits site. On December 21, 2000, Yahoo! filed a complaint in theNorthern District of California requesting a declaration thatthe French court’s orders of May 22 and November 20 werenot recognizable or enforceable in the United States. LICRAand UEJF filed a motion to dismiss pursuant to Federal Ruleof Civil Procedure 12(b) claiming that the District Courtlacked in personam jurisdiction over them. Yahoo! thereafterfiled a motion for summary judgment claiming that theFrench orders were in violation of the First Amendment andasserting that a summary declaratory judgment was appropri-ate because fines were accruing for each day that Yahoo!failed to comply with the French orders. Yahoo! contendedthat the French judgment and fines would only be collectablein the United States since the French court had prohibited col-lection from Yahoo!’s French subsidiary and Yahoo! has noother assets in France. The District Court concluded that it could properly exercisespecific jurisdiction over LICRA and UEJF and, accordingly,denied their motion to dismiss. The District Court


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CMU ISR 08732 - UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

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