This week, the Ninth Circuit digs into a personal jurisdiction case involving a Vietnamese music company.
LANG VAN, INC. v. VNG CORPORATION
The Court holds that exercising personal jurisdiction over a Vietnamese company was appropriate under Rule 4(k)(2) where the plaintiff’s federal claims alleged substantial activity purposefully directed at the U.S., including more than 320,000 app downloads by U.S. customers, U.S. trademark registration, and long-running efforts to partner with U.S. companies.
Panel: Judges Bybee, Bennett, and Bataillon (D. Neb.), with Judge Bataillon writing the opinion.
Key Highlight: “The Court finds that there is substantial evidence of intentional direction into the United States market. This evidence clearly supports Rule 4(k)(2) jurisdiction. Defendant’s position is not only inconsistent but unreasonable in this regard. Jurisdiction, in accordance with Rule 4(k)(2), is reasonable given the defendant’s contacts with the United States.”
Background: Lang Van Inc. is a California corporation that produces and distributes Vietnamese music. VNG is a Vietnamese company that makes Zing MP3, a music download site and app available through Google Play and the Apple App Store. Lang Van sued VNG for copyright infringement in California federal court. The district court dismissed, concluding that VNG’s contacts with California were insufficient to support specific jurisdiction, but without addressing whether VNG had purposely directed its activities toward the United States as a whole.
Result: The Ninth Circuit reversed. Because Lang Van brought a federal law claim and VNG asserted that it was not subject to personal jurisdiction in any state in the U.S., the Court analyzed personal jurisdiction over VNG under Federal Rule of Civil Procedure 4(k)(2). Under that rule, the Court explained, “rather than considering contacts between the . . . [defendants] and the forum state, we consider contacts with the nation as a whole.”
Looking to all of VNG’s nationwide contacts, the Court concluded that exercising personal jurisdiction over VNG was permissible under rule 4(k)(2). VNG purposefully targeted American companies and their intellectual property by specifically seeking out American-made music (including plaintiff’s songs), and releasing its Zing MP3 app in English to the United States, where it was downloaded more than 320,000 times. VNG made no effort to block U.S. users from its services. To the contrary, it actively sought licensing partnerships with U.S. companies, boasting on a U.S. trademark application that it had a “long-term plan of lawful co-operation with the right holders . . . in the West” and a lengthy record “since 2012” of “signed license contracts” and “cooperation deals” with “U.S. studios.” The Court concluded that this “substantial evidence of intentional direction into the United States market” thus “clearly supports Rule 4(k)(2) jurisdiction.”
The Court also rejected VNG’s alternative forum non conveniens argument, reasoning that Vietnam was not an appropriate forum for U.S. copyright claims brought by a California company where the “alleged unlawful Activities [were] purposely directed toward the United States.”