Thank You For Smoking

The New Mexico Supreme Court has dismissed a civil conspiracy suit brought against law firms for their defense of the tobacco industry 

The petitioners here—Shook, Hardy & Bacon LLP (Shook), Covington & Burling LLP (Covington), and Womble Bond Dickinson (US) LLP (Womble) (collectively, the Law Firms)—are alleged to have conspired with cigarette manufacturers and other tobacco industry organizations to defraud the public about the dangers of cigarette smoking. In two underlying lawsuits, the First Judicial District Court cited Santa Fe Technologies and asserted jurisdiction over the Law Firms on the basis of their involvement in the alleged civil conspiracy. The Law Firms now ask us to disavow conspiracy jurisdiction, arguing that it violates due process. The Law Firms further argue that, even if conspiracy jurisdiction satisfies due process, Plaintiffs in the underlying lawsuits (Real Parties in Interest here) have not made a prima facie case of conspiracy jurisdiction. The Law Firms thus seek an extraordinary writ prohibiting the district court from asserting personal jurisdiction over them.

We conclude that conspiracy jurisdiction satisfies due process if tailored to focus on those aspects of the defendant’s conduct that evidence the defendant’s purposeful availment of the forum state through participation in the civil conspiracy. Specifically, we conclude that conspiracy jurisdiction satisfies due process if tailored to focus on the defendant’s conduct in joining a civil conspiracy targeting the forum state. We confirm that specific personal jurisdiction may be exercised over a defendant who participates in a civil conspiracy that the defendant knows will include acts creating minimum contacts with our state. Applying this standard to the record of the underlying proceedings, we conclude that Plaintiffs have failed to show grounds for specific personal jurisdiction over the Law Firms. The Law Firms must be dismissed.

Writ granted

Plaintiffs are all New Mexico residents. The Law Firms are all nonresidents: Shook is established in and principally operates out of Missouri; Covington is organized and primarily does business in the District of Columbia; and Womble is based in North Carolina. None of the Law Firms have significant ties, contacts, or relations in New Mexico. Plaintiffs concede that New Mexico lacks general personal jurisdiction over the Law Firms. Plaintiffs instead allege that specific personal jurisdiction is proper, in part, because the Law Firms joined with Philip Morris and other tobacco organizations in a nationwide civil conspiracy to commit fraudulent misrepresentation and that this nationwide civil conspiracy included New Mexico.

The Law Firms filed motions to dismiss for lack of personal jurisdiction, asserting that Plaintiffs could not show that they took any actions related to the suit that specifically occurred in or were aimed at New Mexico. The Law Firms also argued that conspiracy jurisdiction is unconstitutional. Plaintiffs responded that jurisdiction is appropriate over the Law Firms under both conspiracy jurisdiction and traditional due process principles, and attached several hundred pages of exhibits in support of their responses.

Plaintiffs proffered the exhibits to show that the Law Firms served on the “Committee of Counsel,” an association of lawyers representing cigarette manufacturers and tobacco industry organizations whose goal was to coordinate a public relations campaign to defraud the public about the adverse health impacts of smoking. The exhibits, which are not accompanied by an affidavit, appear to be documents pulled from publicly available online archives about the tobacco industry. The exhibits mostly describe out-of-state conduct. But interspersed within the exhibits are a few references to New Mexico. For example, Plaintiffs attached a few tobacco advertisements and pamphlets distributed in New Mexico. Other exhibits include various letters and memoranda citing New Mexico laws or regulations, identifying smoking-related state court litigation, discussing studies conducted by New Mexico research institutions, or documenting campaign contributions to local officials. We discuss Plaintiffs’ exhibits in more detail below.

The district court denied the Law Firms’ motions to dismiss. The district court specifically cited Santa Fe Technologies, 2002-NMCA-030, as the basis for asserting personal jurisdiction over the Law Firms, explaining that Plaintiffs had shown that the Law Firms actively participated in a civil conspiracy that “reached into New Mexico.” The district court also refused to certify the matter for interlocutory appeal. See NMSA 1978, § 39-3-4 (1999).

Each of the Law Firms separately petitioned this Court for a writ of prohibition to restrain the district court from exercising personal jurisdiction over them. We initially denied Covington’s petition but later withdrew the order and consolidated the three petitions. After oral argument, we granted the petitions and issued an extraordinary writ instructing the district court to dismiss the Law Firms from the underlying lawsuits. We held that conspiracy jurisdiction is constitutional but determined that the district court lacked jurisdiction over the Law Firms on the record presented. We now write to explain our reasoning.

Conclusion

Plaintiffs’ allegations and exhibits do not show that the Law Firms participated in a civil conspiracy to commit fraudulent misrepresentation or that the Law Firms knew of acts in furtherance of this alleged civil conspiracy creating minimum contacts with this state. The record, therefore, does not support a prima facie case of personal jurisdiction over the Law Firms on the basis of civil conspiracy. Additionally, even though the district court did not consider whether jurisdiction was appropriate under a traditional analysis, on de novo review, we determine that Plaintiffs’ allegations and exhibits do not support any traditionally recognized basis for asserting personal jurisdiction over the Law Firms. Therefore, Plaintiffs have not established that the Law Firms had “minimum contacts” with New Mexico “such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int’l Shoe, 326 U.S. at 316 (internal quotation marks and citation omitted). We do not reach the reasonableness prong of the due process analysis, Burger King, 471 U.S. at 476-77, because the minimum contacts prong is not satisfied and the parties have not briefed the issue.

(Mike Frisch)