Lin v. TipRanks, Ltd. ( 2021 )

United States Court of Appeals
For the First Circuit
No. 20-1001
CHING-YI LIN,
Plaintiff, Appellant,
v.
TIPRANKS, LTD.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Allison D. Burroughs, U.S. District Judge]
Before
Howard, Chief Judge,
Barron, Circuit Judge,
and Katzmann, Judge.*
Jonas A. Jacobson, with whom The Law Offices of Jonas Jacobson
was on brief, for appellant.
Efrem Schwalb, with whom Koffsky Schwalb LLC was on brief,
for appellee.
November 23, 2021
* Of the United States Court of International Trade, sitting
by designation.
BARRON, Circuit Judge. We consider in this appeal a New
York resident's assertion that there is personal jurisdiction in
Massachusetts over a for-profit Israeli corporation that ranks the
performance of U.S. investment analysts. She alleges that the
company defamed her in Massachusetts by posting a devastatingly
low rating of her professional performance on its publicly
available website while she was living in Boston and trying to
obtain a job there. She does not allege that the defendant knew
that she was in Massachusetts at the time that it posted the
allegedly defamatory information. She nonetheless contends that
its lack of such knowledge poses no bar to the exercise of personal
jurisdiction over it in Massachusetts.
There are significant questions as to when, if ever, the
Due Process Clause of the U.S. Constitution's Fourteenth Amendment
permits a defamation plaintiff to assert personal jurisdiction
over an out-of-forum defendant that operates a for-profit website
that trades on assertions about individuals' reputations, absent
the defendant knowing the location of the plaintiff at the time
that it publishes the allegedly defamatory statement. In this
case, however, we conclude that the question of personal
jurisdiction may be resolved on the narrow but straightforward
ground that the plaintiff has failed on this record to meet her
burden to adduce evidence of specific facts sufficient to satisfy
the requirements of constitutional due process for the exercise of
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such jurisdiction. And, that is because we conclude that she has
failed to make the requisite showing that anyone in the forum state
saw the low rating of her that grounds her defamation claim. We
thus affirm on that limited basis the District Court's ruling that
her suit must be dismissed for lack of personal jurisdiction.
I.
We recount the following facts, which are not in dispute
for purposes of this appeal. We then recount the relevant
procedural history.
A.
Ching-Yi Lin is an equity research analyst who advises
investors on whether to purchase or sell shares of biotech
companies. She received an MBA in finance from Columbia Business
School in 2006 and thereafter held multiple positions related to
equity research in New York.
In 2015, Lin moved to Massachusetts to work for H.C.
Wainwright, which had created a new Boston branch specifically so
that she could work from there. Shortly after Lin moved to Boston,
however, H.C. Wainwright laid her off as a result of corporate
restructuring.
Because Lin had many close friends in Boston, she wanted
to stay in the area. She thus sought work nearby, applying to "at
least 100 jobs in the Boston area" between November 2015 and August
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2016, "including jobs as an equity research analyst, and within
the pharmaceutical industry."
Lin applied to many of these jobs through online
applications. She also made calls to recruiters and spoke to
people in the pharmaceutical sector. During this period, Lin "had
a physical interview with Janney Montgomery Scott, and several
phone interviews, including with a large Massachusetts company
named Philips, and another company known as Stax Consulting."
Despite Lin's credentials and her view that the
interviews she had went well, none of these efforts to secure
employment in the Boston area panned out. This was unusual,
according to Lin, because she had never previously had such
difficulty finding employment and the job market for buy-side
equity research positions was an employee-friendly one.
Lin moved out of Massachusetts in 2016. In 2018, Lin
learned that she was very poorly ranked (4,771 out of 4,832
analysts) on a website that was publicly available for free during
the time period that she was seeking employment in Boston.
The website, www.tipranks.com, was run by TipRanks,
LTD., an Israeli technology company. TipRanks operates the website
exclusively from Israel.
TipRanks aggregates and analyzes publicly available
financial data to rank investment analysts, hedge fund managers,
financial bloggers, and "corporate insiders." The website's
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"About Us" page states that TipRanks was founded to "bring[] the
general public the most accurate and accountable financial
advice." The website describes the company as offering a
"comprehensive investing tool that allows private investors and
day traders to see the measured performance of anyone who provides
financial advice."
TipRanks bills itself as the "go-to tool for part-time
to professional investors and everyone in the financial
world, . . . empower[ing] individual investors by giving them
access to the same technology that financial managers have" to
give users "the must [sic] needed edge on the market." TipRanks
does so by "aggregat[ing] and analyz[ing] financial data that is
publicly available online to provide a data-driven measure of
accuracy based on the statistical ability of an expert to generate
profits from investment recommendations."
TipRanks uses this information to rank financial
analysts based on the performance of their investment
recommendations. These rankings are made available for free on
the TipRanks website.
TipRanks also offers subscription-based "premium
services" for an annual fee. This tiered subscription service
allows subscribers full access to TipRanks's stock market research
tools. For example, TipRanks's daily analyst ratings, analyst
recommendations, "hot stocks," and certain filtering abilities for
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searching stocks and experts are only available to those with a
paid subscription.
TipRanks is not registered to do business in
Massachusetts, has no employees in Massachusetts, and does not
maintain an office or own any personal or real property in
Massachusetts. According to its chief executive officer, it also
does not "derive substantial revenue from business in
Massachusetts." There is no information in the record regarding
the number of TipRanks subscribers located in Massachusetts, or
the number of views the TipRanks website received in the relevant
time period (or more generally) from Massachusetts IP addresses or
as a whole.
TipRanks did not contact anyone in Massachusetts about
Lin's performance in creating her ranking. Like TipRanks's other
analyst rankings, it was generated from information that was
otherwise publicly available online.
B.
After learning about her TipRanks ranking and receiving
a job after the ranking depopulated from web searches, Lin, by
this time a resident of New York, filed this defamation action
under Massachusetts law against TipRanks. In her complaint, Lin
alleges that the website's rating, which she assessed was lower
than her actual performance, was erroneous and harmed her
reputation. The only relief that she requests in her complaint is
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damages for lost pay from prospective employers who did not hire
her in consequence of the alleged defamatory statement.
Lin originally brought this suit in Massachusetts state
court. Some months later, however, TipRanks removed the case to
the United States District Court for the District of Massachusetts.
See 28 U.S.C. § 1332. Because subject-matter jurisdiction in this
case is premised on diversity of citizenship, the District Court
was acting "as 'the functional equivalent of a state court sitting
in the forum state.'" Kuan Chen v. U.S. Sports Acad., Inc., 956
F.3d 45, 54 (1st Cir. 2020) (quoting Baskin-Robbins Franchising
LLC v. Alpenrose Dairy, Inc., 825 F.3d 28, 34 (1st Cir. 2016)).
Thus, Lin had to show that the exercise of personal jurisdiction
over TipRanks in Massachusetts would satisfy both the
Massachusetts long-arm statute, see Mass. Gen. Laws ch. 223A, § 3,
and the Due Process Clause of the U.S. Constitution. Kuan Chen,
956 F.3d at 54; see also SCVNGR, Inc. v. Punchh, Inc., 85 N.E.3d
50, 55-56 (Mass. 2017) (explaining that the Massachusetts long-
arm statute is not coextensive with the constitutional limits).
TipRanks moved to dismiss Lin's suit for lack of personal
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2)
based on both the Massachusetts long-arm statute and federal
constitutional due process. Lin filed a motion in opposition and
argued in support of that motion that the Massachusetts long-arm
statute supported the exercise of personal jurisdiction in this
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case. She also contended that the exercise of jurisdiction would
comport with the guarantee of due process under the Fourteenth
Amendment.
On November 21, 2019, the District Court granted the
defendant's motion to dismiss. It first found that the assertion
of personal jurisdiction over the defendant fell within § 3(c) of
the Massachusetts long-arm statute, which permits the exercise of
"personal jurisdiction over a person . . . as to a cause of action
in law or equity arising from the person's . . . causing tortious
injury by an act or omission in this commonwealth." Mass. Gen.
Laws ch. 223A, § 3(c); see also Fed. R. Civ. P. 4(k)(1). It
concluded that "because the defamatory material on TipRanks's
website was allegedly accessed or 'circulated' in Massachusetts,
the act of defamation was committed in Massachusetts within the
meaning of section 3(c)." Ching-Yi Lin v. TipRanks, Ltd., No.
1:19-cv-11517, 2019 WL 6211246 (D. Mass. Nov. 21, 2019). The
District Court "note[d] that [the long-arm statute] would likely
also be satisfied under section 3(d)." Id. at *3 n.3; see Mass.
Gen. Laws ch. 223A, § 3(d) (permitting the exercise of personal
jurisdiction "as to a cause of action in law or equity arising
from a person's . . . causing tortious injury in this commonwealth
by an act or omission outside this commonwealth if he regularly
does or solicits business, or engages in any other persistent
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course of conduct, or derives substantial revenue from goods used
or consumed or services rendered, in this commonwealth").
Nonetheless, the District Court determined that the
assertion of personal jurisdiction over TipRanks did not comport
with constitutional due process under the Fourteenth Amendment. A
plaintiff seeking to establish personal jurisdiction in conformity
with the requirements of the Fourteenth Amendment's Due Process
Clause, absent a demonstration that there is general jurisdiction
over the defendant, must show that there is specific jurisdiction.
Mass. Sch. of L. at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26,
34 (1st Cir. 1998).1 To make out that latter showing, the plaintiff
must establish that (1) the claim that she is bringing "directly
arise[s] out of, or relate[s] to, the defendant's forum-state
activities"; (2) the defendant's contacts with the forum state
"represent a purposeful availment of the privilege of conducting
activities in" that state; and (3) the exercise of jurisdiction is
reasonable. See United Elec., Radio & Mach. Workers of Am. v. 163
Pleasant St. Corp., 960 F.2d 1080, 1089 (1st Cir. 1992).
The District Court rejected TipRanks's argument to the
contrary and held that the "relatedness" prong of the inquiry was
satisfied here because Lin's "claim arises out of TipRanks's forum-
1 The plaintiff does not argue that TipRanks is subject to
general personal jurisdiction in Massachusetts.
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state activity of disseminating the website and the website's
content in Massachusetts." Lin, 2019 WL 6211246, at *4.2 But,
the District Court held, the "purposeful availment" and
"reasonableness" prongs were not met. Accordingly, the District
Court granted TipRanks's motion to dismiss for lack of personal
jurisdiction.
Lin timely appealed.
II.
The District Court dismissed the case for lack of
personal jurisdiction without adjudicating jurisdictional facts.
Lin did not seek jurisdictional discovery or object to the District
Court's use of the "prima facie" method for determining personal
jurisdiction. See Boit v. Gar-Tec Prods., Inc., 967 F.2d 671,
675-76 (1st Cir. 1992) (describing prima facie standard). We thus
must decide whether Lin has made a prima facie "showing as to every
fact required to satisfy 'both the forum's long-arm statute and
the due process clause of the Constitution.'" Id. at 675 (quoting
U.S.S. Yachts, Inc. v. Ocean Yachts, Inc., 894 F.2d 9, 11 (1st
Cir. 1990)).
In doing so, "we take specific facts affirmatively
alleged by the plaintiff as true (whether or not disputed) and
2The District Court did not address the question of whether
the record supported the conclusion that anyone in the forum state
had seen the ranking itself.
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construe them in the light most congenial to the plaintiff's
jurisdictional claim." Mass. Sch. of L., 142 F.3d at 34. We have
cautioned that the "liberality of this approach" does not mean
that we must "credit conclusory allegations or draw farfetched
inferences." Id. (quoting Ticketmaster-N.Y., Inc. v. Alioto, 26
F.3d 201, 203 (1st Cir. 1994)). Thus, Lin "cannot rely on
conclusory averments but must 'adduce evidence of specific
facts.'" Kuan Chen, 956 F.3d at 54 (quoting Foster-Miller, Inc.
v. Babcock & Wilcox Can., 46 F.3d 138, 145 (1st Cir. 1995)). Our
review is de novo. See id.A.
As we have noted, the District Court found that the
Massachusetts long-arm statute permitted the exercise of personal
jurisdiction under § 3(c) -- and likely also under § 3(d) -- of
that statute. Those provisions require an act in Massachusetts,
Mass. Gen. Laws ch. 223A, § 3(c), or an injury in Massachusetts,
id. § 3(d).
The parties vigorously dispute on appeal whether those
requirements are met here. That dispute implicates questions about
what the record shows in terms of whether the allegedly defamatory
ranking was seen by someone in Massachusetts such that there was
an injury -- reputational harm -- in the state and thus that the
act of defamation occurred "in" the state.
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But, we need not address this dispute about the record
in connection with the question of whether the District Court erred
in finding the Massachusetts long-arm statute satisfied, although
we will return to it in connection with our resolution of the due
process inquiry. The reason that we need not do so is that Lin
separately contends on appeal that she has satisfied the distinct
requirements of § 3(a) of the state's long-arm statute.
Section 3(a) provides for the exercise of "personal
jurisdiction over a person . . . as to a cause of action . . .
arising from the person's . . . transacting any business in this
commonwealth." Id. § 3(a). This section does not itself
necessarily implicate the question of whether anyone in
Massachusetts saw the TipRanks posting that is alleged to have
caused Lin's injury that underlies the parties' dispute over § 3(c)
and § 3(d) of the long-arm statute. That is because the question
of whether the maintenance of the website in Massachusetts
constitutes "transacting any business" would not seem to require
determining whether the act of defamation itself can be said to
have occurred "in" Massachusetts or caused an injury in the state.
Lin's invocation of § 3(a) to show that she can satisfy
the requirements of the Massachusetts long-arm statute is
significant for present purposes because the District Court, while
acknowledging that Lin had argued that § 3(a) was satisfied, did
not address the merits of that contention. TipRanks also did not
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address the requirements of § 3(a) in its filings in the District
Court or in its briefing to us.
Thus, rather than engage the complicated questions
regarding how § 3(a) applies in this context without the aid of
either fully adversarial briefing or a lower court decision, we
proceed on the understanding that Lin is right that, given § 3(a),
the long-arm statute poses no bar to the exercise of personal
jurisdiction over TipRanks here. We emphasize that our decision
to proceed in this manner causes no prejudice to TipRanks. As we
will next explain, even assuming that TipRanks's business activity
in Massachusetts suffices to satisfy the requirements of § 3(a) of
that state's long-arm statue as Lin contends, our recent decision
in Scottsdale Capital Advisors Corp. v. The Deal, LLC, 887 F.3d 17(1st Cir. 2018), leads us to conclude that we must affirm the
District Court's ruling that the exercise of personal jurisdiction
over TipRanks on these claims does not comport with due process,
albeit for reasons that differ in focus from those on which the
District Court relied in dismissing the case on due process
grounds. And that is because, as we will also explain, the record
fails to show that anyone in Massachusetts saw the allegedly
defamatory statement in question, which in turn, under Scottsdale,
requires that we conclude that the relatedness prong of the due
process inquiry into personal jurisdiction is not satisfied,
notwithstanding the District Court's ruling to the contrary.
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B.
Scottsdale is relevant to the constitutional issue
concerning personal jurisdiction here for the following reasons.
Like this case, it involved a question of personal jurisdiction in
a case involving a defamation claim that was brought in federal
district court against an out-of-forum defendant. Id. at 18-19.
Moreover, like in this case, the question of personal jurisdiction
there centered on whether the Due Process Clause permitted the
exercise of specific jurisdiction over the defendant, there being
no basis for finding general jurisdiction. Id. at 20. Thus, the
question was whether the plaintiff could satisfy the requirements
of relatedness, purposeful availment, and reasonableness. See id.Finally, the due process inquiry in Scottsdale began and ended
with the relatedness requirement, for reasons that lead us to
conclude that the same inquiry must begin and end with that
requirement in this case as well.
To see why, it first helps to provide some more detail
about Scottsdale itself. There, the suit was brought in New
Hampshire by an Arizona corporation and one of its officers
concerning allegedly defamatory articles that the defendant, "The
Deal," had posted to a subscriber-only web portal and attached to
email newsletters sent to subscribers. See id. at 18-19. With
respect to the relatedness requirement, Scottsdale explained that,
given the nature of the legal claim at issue there, the relatedness
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showing depended on whether the evidence sufficed to show a causal
connection between the claimed injury -- reputational harm -- and
the defendant's forum-state activities. Id. at 21.
That question was a substantial one in that case because
the only forum-state activity identified was the defendant's
maintenance of a subscriber-only website in the forum state and
its solicitation of one subscriber in the state. Id. at 19. To
be sure, that one subscriber was an institutional subscriber -- a
college in the forum state -- and so through that institutional
subscription, members of the college community had signed up to
receive access to The Deal's web portal and to receive email
newsletters from The Deal. Id. at 18-19. But, the question
remained whether anyone using that subscription had accessed the
material in question, as, we explained, without a showing that any
of the individuals using the school's institutional subscription
had accessed the articles in question, the plaintiffs could not
demonstrate the "nexus between the claims and the defendants'
forum-based activities [that] the relatedness prong of the
jurisdictional analysis requires." Id. at 22. In support of that
conclusion, we explained that "to assess relatedness [for claims
sounding in tort] we 'look to whether the plaintiff has established
cause in fact (i.e., the injury would not have occurred "but for"
the defendant's forum-state activity) and legal cause (i.e., the
defendant's in-state conduct gave birth to the cause of action).'"
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Id. at 20-21 (quoting Mass. Sch. of L., 142 F.3d at 35). We
further explained that under New Hampshire law, which looks to the
Restatement (Second) of Torts for the elements of defamation,
reputational harm -- and thus liability for defamation -- only
occurs where the defamatory material is read and understood by a
third party. Id. at 21. Accordingly, we concluded that if no one
using the forum-state college's institutional subscription saw the
articles, the plaintiffs could not establish cause in fact or legal
cause because their "reputation would not differ had [the college]
not subscribed to The Deal." Id. at 22.3
Given the nature of the underlying legal claim in this
case, the relatedness inquiry here, as in Scottsdale, concerns
"whether the plaintiff has established cause in fact (i.e., the
injury would not have occurred 'but for' the defendant's forum-
3 Jurisdictional discovery in that case had narrowed the
number of potential readers of the allegedly defamatory materials
in that case to only two -- the number of people who had used the
college's institutional subscription to sign up for email
newsletters -- because analytic tools used in that discovery showed
that no one using the forum-state college's institutional
subscription had viewed the articles where they were available on
The Deal's web portal. Scottsdale, 887 F.3d at 19.
To the extent Scottsdale is arguably distinguishable because
there had been jurisdictional discovery that conclusively
established the number of potential readers, the plaintiff here
made no request to conduct such discovery. See Boit, 967 F.2d at
681 ("Having failed to request any additional discovery to provide
evidentiary support for their jurisdictional allegations, the
[plaintiffs] cannot now complain that [the defendant] alone has
knowledge of the relevant jurisdictional facts.").
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state activity) and legal cause (i.e., the defendant's in-state
conduct gave birth to the cause of action)." See id. at 20-21
(quoting Mass. Sch. of L., 142 F.3d at 35). Defamation under
Massachusetts law, like the New Hampshire cause of action at issue
in Scottsdale, similarly follows the Second Restatement in
requiring that the defendant communicate the defamatory statement
to a third party. See White v. Blue Cross & Blue Shield of Mass.,
Inc., 809 N.E.2d 1034, 1036 (Mass. 2004). The result is that, per
Scottsdale, Lin's attempt to satisfy the relatedness requirement
fails if she cannot show that her TipRanks rating was seen by
anyone in Massachusetts because then she cannot establish the nexus
to the claim that relatedness requires. See 887 F.3d at 22.
Before addressing whether Lin has done what she must to
make that showing at this stage of the litigation, however, we do
pause to acknowledge what we noted above -- TipRanks, as appellee,
does not dispute the District Court's conclusion that there was no
relatedness problem in this case. TipRanks trains its focus in
this appeal on defending the District Court's independent
conclusion that Lin failed to satisfy the purposeful availment and
reasonableness prongs of the due process inquiry and that her bid
to establish personal jurisdiction fails on that basis.
Notably, though, in opting for that focus, TipRanks did
not -- and does not -- concede that a tort occurred in
Massachusetts or that someone in Massachusetts saw the ranking of
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Lin. Instead, TipRanks disputed below -- and disputes to us --
that the evidence shows that anyone in Massachusetts saw the
ranking. Scottsdale makes clear, moreover, that, insofar as
TipRanks is right on that score, this evidentiary gap gives rise
to a relatedness problem. See id. at 21-22.
We, of course, may affirm the District Court's ruling on
any ground manifest in the record. See Kuan Chen, 956 F.3d at 54.
Thus, because we conclude that TipRanks's assertions about the
factual deficiencies in Lin's complaint and supplemental filings
concerning whether anyone in Massachusetts viewed Lin's rating on
its website are well taken, we conclude that the most prudent
course is to affirm the District Court's dismissal on this
relatedness ground. This approach, as we will explain, accords
with our precedent in this developing area of the law of personal
jurisdiction and thus obviates our need to address the more novel
constitutional questions concerning purposeful availment and
reasonableness in the context of internet-based defamation claims
that we would otherwise need to confront to decide whether to
affirm the District Court. With that framing of the assessment of
the record that follows, we now turn to what the record shows here
with respect to relatedness.
C.
Scottsdale does make clear that "circumstantial
evidence . . . might be sufficient to raise a presumption" that
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purportedly defamatory information was seen by an individual in
the forum state. 887 F.3d at 21-22. So, the fact that Lin's
pleadings do not assert any facts that directly show that someone
in Massachusetts saw her rating on www.tipranks.com -- let alone
relied on it to her detriment -- is not necessarily a problem for
her.
It is also true that, in Scottsdale, the purportedly
defamatory material was available on a subscription-only basis.
See id. at 18-19. That is not so here. The portion of the website
in question is publicly available and so may be accessed by anyone
perusing the internet; no subscription is needed to access it or
the allegedly defamatory material that it contained.
Lin has not argued at any point, however, that the mere
fact that TipRanks's ranking of her was freely available in
Massachusetts establishes that someone in the state must have seen
the specific ranking of her about which she complains. In
addressing TipRanks's challenge to relatedness below, she did
point to cases involving trademark infringement claims concerning
allegedly infringing websites. See Morphotrust USA, LLC v.
Identrix, LLC, No. 16-cv-10074, 2016 WL 3512131, at *5 (D. Mass.
June 21, 2016) ("Courts have repeatedly found the relatedness prong
'easily satisfied' where the alleged trademark infringement arose
out of the publication of a website in Massachusetts that allegedly
caused harm to a Massachusetts plaintiff."); N. Light Tech. v. N.
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Lights Club, 97 F. Supp. 2d 96, 106 (D. Mass. 2000). But, the
domain-name context there hardly establishes that if a website is
made widely available to internet users -- including users in the
forum state -- then we must presume that people in the forum state
saw a particular part of that website in the manner that
relatedness in the defamation context requires. Nor has Lin argued
that it does.
We see no reason to question that choice. Although there
is no information in the record about how many views the TipRanks
site receives, it certainly seems plausible to infer that someone
in Massachusetts visited www.tipranks.com during the relevant
time, just as it would seem plausible that someone in the state
would have visited another popular website (e.g., YouTube). The
question for present purposes, though, is whether someone in
Massachusetts saw Lin's particular ranking on the TipRanks
website, much as the question in a defamation action against
someone who made an allegedly defamatory statement and posted it
to YouTube would be whether anyone saw the particular YouTube video
that contained that statement.
By Lin's own account, the people most likely to have
seen the ranking in question here were not in fact the people who
visited the site directly. They were potential employers who came
across the site's ranking of Lin in the course of searching for
her on Google.
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To that point, Lin develops her case for drawing the
inference that someone in Massachusetts saw the ranking solely by
focusing on the reasonableness of the inference that the potential
employers to whom she applied saw it. And, that is precisely
because, as Lin emphasizes, that ranking placed her in the bottom
seventy of the listing of nearly 5,000 analysts ranked on the site,
such that, by her account, merely accessing the website would not
necessarily lead one to come across the ranking of her that grounds
her defamation claim, given how low down the listing of rankings
on the website hers appeared.
We find this feature of the case a salient one. If the
people Lin herself says were most likely to have seen the allegedly
defamatory material did not see it, we decline to infer that those
who were even less likely than them to have seen it saw it
nonetheless, absent anything in the record that indicates a reason
for our doing so. See Ayasli v. Korkmaz, No. 19-cv-183-JL, 2020
WL 4287923, at *8 (D.N.H. July 27, 2020) (finding plaintiff's
declaration that "the Turkish newspapers that published the
defamatory articles . . . make[] [their] content freely available
online and [are] widely read by people of Turkish descent in New
Hampshire" insufficient to find relatedness where plaintiff
"offer[ed] no evidence that anyone in New Hampshire (besides him)
ha[d] seen or read the allegedly defamatory articles themselves"
(internal quotation marks omitted)), reconsideration granted on
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other grounds, 2020 WL 5879341 (D.N.H. Oct. 2, 2020); cf. Brown v.
Dash, No. 20-10980-FDS, 2020 WL 6806433, at *9 (D. Mass. Nov. 18,
2020) ("[A]lthough there is no proof (or, indeed, allegation) that
Massachusetts residents apprehended the defamatory content, the
hundreds of thousands of views of defendants' [allegedly
defamatory] videos and posts are likely sufficient circumstantial
evidence that at least some of the defamatory content [was
apprehended in] Massachusetts." (emphasis added)); de Laire v.
Voris, No. 21-cv-131-JD, 2021 WL 1227087, at *3-4, 4 n.7 (D.N.H.
Apr. 1, 2021) (noting a presumption of publication that may arise
when "defamatory materials are publicly available to a sufficient
number of people" but noting in finding the presumption satisfied
that the publicly available website had 288 contributors in the
forum state, that the defendants did not dispute that the allegedly
defamatory materials were viewed and understood in the forum state,
and that the plaintiff had received "numerous phone calls and
emails from [forum-state] parishioners" which the defendants did
not dispute were a result of the web postings).
Thus, the crucial question for relatedness purposes
turns on what the record shows in terms of permitting the inference
that any prospective employer to whom she applied did look at the
ranking. For, if the record does not include facts sufficient to
support that inference, then we do not see how under Scottsdale
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Lin can satisfy the relatedness requirement on this record. We
turn, then, to that question.
D.
Lin contends that, when all reasonable inferences are
drawn in her favor -- as they must be -- the fact that she "was a
highly educated and highly valued analyst who applied to, and
interviewed with, numerous Boston and Cambridge based employers
for over a year without being hired" but then "was hired less than
a month after TipRanks removed the inaccurate profile posted on
its website" is sufficient to establish that her potential
employers viewed the allegedly defamatory TipRanks posting. In
building the inferential case on which the relatedness inquiry in
this case hinges, though, Lin does not argue that employers would
have been likely to use TipRanks itself to aid in its hiring
process. Indeed, the TipRanks website makes clear that its
intended audience is individual investors, not employers. Nor
does anything in the record suggest that TipRanks was or even was
intended to be used as a tool for companies considering hiring
analysts. Lin argues instead that it is fair to infer that
prospective employers to whom she applied would have come across
the low ranking of her on the website in the course of searching
for her on Google. She identifies as support for this contention
that "Tip Ranks results appeared high on the 'Google[]' front page"
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when searching for her and were "amongst the first several hits[]
when searching [Google] for 'Ching-Yi Lin' and 'Analyst.'"
The premise for this contention is, necessarily, that at
least one among the prospective employers to whom Lin applied
conducted the search that she posits must have been undertaken.
But, we do not see what basis we have for finding that premise
supported here, whether our focus is on those prospective employers
to whom she applied who did not even call her in for an interview
or the still smaller subset of prospective employers to whom she
applied who did interview her but then did not go on to make her
an offer.
For starters, there is nothing in the record that
suggests that conducting an internet search for all applicants --
or even all reasonably strong ones -- in advance of calling
applicants in for interviews is anything like a routine practice
in the industries in which Lin was applying. Thus, while
"experience and common sense," Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009), suggest that in 2015 and 2016 some employers were
Googling some applicants, it strikes us as too speculative to infer
from this record that the group of employers to whom Lin applied
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searched for her on Google before even interviewing her and then
came across her low ranking on the website.4
In fact, from Lin's account, we know only that a number
of the potential employers at issue were not seeking specifically
to hire an investment analyst. And, among the jobs Lin sought
during the relevant time were a number of high-ranking positions,
such as vice president of a biotechnology company. Thus, even
though we draw reasonable inferences in Lin's favor, the evidence
in the record here does not require us to presume that Lin was
such a qualified candidate for these posts that the Google search
she hypothesizes must have been undertaken pre-interview.
Insofar as Lin asks us to infer from the fact that she
received no offers of employment while the website displayed the
low ranking that the Massachusetts employers to whom she applied
saw that ranking in the course of deciding whether to interview
her, we also cannot see how we may do so. Lin has alleged that
she was a strong applicant and that she was seeking a job in an
"employee-friendly job market," and we accept these assertions as
true. But, there are myriad reasons why an individual might not
receive an interview. Moreover, Lin did receive some interviews
while the problematic rating on www.tipranks.com was on display.
4 We do not address whether a complaint that sufficiently
alleged an employer practice of pre-screening applicants on Google
would satisfy the relatedness requirement.
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Thus, the record suggests that if the ranking was the barrier to
entry for her, it was far from an absolute one. That being so, we
do not see what non-speculative basis there is for concluding that
the ranking proved to be a barrier only for those employers -- or
a subset of them -- to which she applied but that did not seek to
interview her, at least when there is no basis for presuming that
prospective employers generally would have done the search
described before even inviting her to interview.
To be sure, Lin does point to evidence in the record
that she was interviewed by some of the prospective employers to
whom she applied while the low ranking appeared on the TipRanks
website. And she contends that the fact that these employers did
not make her an offer even though they had interviewed her supports
the inference she would have us draw about an employer having seen
the allegedly defamatory ranking, at least in the wake of the
interview as the employer decided whether to extend an offer. But,
here, too, we are not persuaded.
We do not dispute that it is possible that an employer
would have done a Google search of Lin's name after having called
her in while it was deciding whether to make her an offer. The
number of interviews that the record shows that Lin was granted in
the relevant time span is too small, however, for us to infer that
one of those prospective employers in fact performed the particular
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Google search that would have led it to the TipRanks ranking of
her.
Nor can the fact that these interviews did not result in
Lin being offered a job itself support that inference, especially
given the limited number of interviews involved. We emphasize in
this respect the fact that Lin has offered little in the way of
specific facts about the interviews that she received.
The record indicates that she had one physical interview
and several phone interviews. Even if we assume that all of these
interviews were in Massachusetts or with Massachusetts-based
companies, which is not itself clear from the record, and that the
companies shared Lin's perception that the interviews "had gone
well," we find this sample size too small, given the contingencies,
to constitute circumstantial evidence sufficient to infer that the
employers' failure to follow up with Lin can be explained by their
having viewed her TipRanks rating. See Scottsdale, 887 F.3d at 22
(considering whether plaintiffs had adequately established that
allegedly defamatory material in an email attachment had been
accessed by anyone in the forum state and concluding that, where
the evidence showed that only two people in the forum state had
received an email containing the attachment, the number of
recipients was too small to "generate on its own a reasonable
assumption that at least one must have opened the attachment");
see also id. (distinguishing the facts in Keeton v. Hustler Mag.,
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Inc., 465 U.S. 770 (1984), which involved an article in a magazine
delivered to over 10,000 paying customers in the forum state, and
noting that even if many of them did not read the article, "it
seems quite certain that at least some of the 10,000-plus
purchasers read the articles"); cf. Boit, 967 F.2d at 680(addressing plaintiffs' satisfaction of the prima facie personal
jurisdiction showing where the allegation that defendant "Gar-Tec
sold [a] hot air gun to Brookstone directly" was a "cornerstone"
of that jurisdictional showing, and finding that "the inferred
'facts' that the hot air gun was once in Gar-Tec's possession and
later came into Brookstone's possession do not establish that Gar-
Tec sold the gun wholesale directly to Brookstone" because the
record "no more supports an inference that Gar-Tec sold the hot
air gun directly to Brookstone than it does an inference that Gar-
Tec sold [it] to another company without knowledge that it might
sell to Brookstone").
It is true that in Scottsdale it was clear that the
relevant pool of potential readers of the allegedly defamatory
article was both certain -- in light of what jurisdictional
discovery revealed -- and smaller than our sample size here, in
that case numbering only two. See 887 F.3d at 19-21. But, in
Scottsdale, the question was whether we could presume that either
of the two individuals in question had opened an article that was
included as an email attachment in an email newsletter that they
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had signed up to receive. See id. at 21-22. Despite the fact
that signing up to receive email newsletters might suggest interest
in the content of attachments sent in those newsletters, we found
that because "[i]ndividuals often receive many emails every day,
attachments to which may well go unopened," we could not "assum[e]
that at least one recipient must have opened the attachment." Id.
Here, we are asked to assume, based on a handful of interviews,
that someone who was not the target audience of the website -- a
potential employer -- conducted a Google search for one applicant
out of an applicant pool of an unknown size. We cannot see how
that assumption is any more warranted than the one we declined to
make in Scottsdale.
Finally, the record does show that Lin received an offer
after the TipRanks rating depopulated from a Google search. Lin
contends that this aspect of the record supports us drawing the
inference about prospective employer conduct she contends is
reasonably drawn. We do not agree.
We know little about that offer from the record. For
example, we do not know what the position she was offered was and
how it compared to positions she had applied for during the
relevant time frame, or how many other jobs she applied to after
the ranking depopulated for which she did not get offers. Nor is
there evidence in the record or an allegation from Lin that she
steadily applied for jobs between August 2016 and her hiring in
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2018, which makes it particularly difficult to conclude that the
timing of the eventual offer is significant. And, even if we
assume that she did continue applying for jobs through that period,
the fact that she received a job offer within a month of the
ranking depopulating from Google is not sufficient to infer that
employers had previously been conducting Google searches prompting
them to see and rely on the purportedly defamatory material. Thus,
we do not see how the fact of her having been hired when she was
is sufficient on its own -- or even when considered with the other
aspects of the record just reviewed -- to permit the inference
that Massachusetts employers were looking at the TipRanks profile.
E.
In sum, as in Scottsdale, we are left to conclude that
"nothing in the record indicates that [reputational harm] arose
from [the defendant's] contacts with plaintiff['s] chosen forum."
887 F.3d at 22. That is no less fatal to the showing of relatedness
here than it was there.
III.
For the foregoing reasons, the judgment dismissing Lin's
complaint pursuant to Federal Rule of Civil Procedure 12(b)(2) is
affirmed.
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