-1- 06-2228-cv Ehrenfeld v. Mahfouz 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5…

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06-2228-cv
Ehrenfeld v. Mahfouz
1
UNITED STATES COURT OF APPEALS 2
3
FOR THE SECOND CIRCUIT 4
5
-------------------- 6
7
August Term 2006 8
9
Argued: November 8, 2006 Decided: June 8, 2007 10
11
Docket No. 06-2228-cv 12
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----------------------------------------------X 14
15
RACHEL EHRENFELD, 16
17
18
Plaintiff-Appellant, 19
20
21
- against - 22
23
24
KHALID SALIM BIN MAHFOUZ, 25
26
27
Defendant-Appellee. 28
29
----------------------------------------------X 30
31
Before: FEINBERG, LEVAL, and CABRANES, Circuit Judges. 32
33
Plaintiff-Appellant Rachel Ehrenfeld appeals from a 34
judgment of the United States District Court for the Southern 35
District of New York (Richard C. Casey, J.) granting the motion 36
to dismiss of Defendant-Appellee Khalid Salim Bin Mahfouz on 37
the basis of the lack of personal jurisdiction under N.Y. 38
C.P.L.R. § 302(a)(1) and N.Y. C.P.L.R. § 302(a)(3), denying 39
Ehrenfeld’s request for jurisdictional discovery, and 40
dismissing the case for lack of personal jurisdiction. 41
42

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Question regarding N.Y. C.P.L.R. § 302(a)(1) certified to 1
the New York Court of Appeals. Judgment affirmed as to N.Y. 2
C.P.L.R. § 302(a)(3) and jurisdictional discovery. 3
4
DANIEL J. KORNSTEIN, MARK PLATT, CECELIA CHANG, 5
MIKAELA A. MCDERMOTT, Kornstein Veisz 6
Wexler & Pollard, LLP, New York, NY, for 7
Plaintiff-Appellant. 8
9
STEPHEN J. BROGAN, TIMOTHY J. FINN, Jones Day, 10
Washington, DC, and MICHAEL NUSSBAUM, 11
Bonner, Kiernan, Trebach & Crociata, 12
Washington, DC, for Defendant-Appellee. 13
14
Kurt A. Wimmer, Jason P. Criss, Covington & 15
Burling LLP, New York, for Amici Curiae 16
Amazon.com, American Society of Newspaper 17
Editors, Association of American 18
Publishers, Inc., Authors Guild, Inc., 19
Electronic Frontier Foundation, European 20
Publishers Council, Forbes Inc., John 21
Fairfax Holdings, Ltd., Media/Professional 22
Insurance, Media Institute, Newspaper 23
Association of America, Online News 24
Association, Radio-Television News 25
Directors Association, Reporters Committee 26
for Freedom of the Press, and World Press 27
Freedom Committee, in support of Plaintiff- 28
Appellant. 29
30
31
FEINBERG, Circuit Judge: 32
Plaintiff-Appellant Rachel Ehrenfeld appeals from a 33
judgment of the United States District Court for the Southern 34
District of New York (Richard C. Casey, J.) granting the motion 35
to dismiss of Defendant-Appellee Khalid Salim Bin Mahfouz on 36
the basis of the lack of personal jurisdiction under N.Y. 37

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C.P.L.R. § 302(a)(1) and N.Y. C.P.L.R. § 302(a)(3), denying 1
Ehrenfeld’s request for jurisdictional discovery, and 2
dismissing the case for lack of personal jurisdiction. For the 3
reasons hereafter stated, we certify to the New York Court of 4
Appeals a question inquiring whether § 302(a)(1) of New York’s 5
long-arm statute confers personal jurisdiction over a person 6
(1) who sued a New York resident in a non-U.S. jurisdiction; 7
and (2) whose contacts with New York stemmed from the foreign 8
lawsuit and whose success in the foreign suit resulted in acts 9
that must be performed by the subject of the suit in New York? 10
We affirm the District Court’s judgment as to N.Y. C.P.L.R. § 11
302(a)(3) and jurisdictional discovery. 12
I. BACKGROUND 13
Ehrenfeld is the author of Funding Evil: How Terrorism is 14
Financed -- and How to Stop It, which was published by Bonus 15
Books in 2003 in the United States. Mahfouz is a Saudi Arabian 16
citizen who was formerly the president and chief executive 17
officer of The National Commercial Bank of Saudia Arabia. In 18
Funding Evil, Ehrenfeld alleges that Mahfouz, among others, 19
financially supported terrorism. Mahfouz sued Ehrenfeld in 20
England for libel on the basis of these allegations. Ehrenfeld 21
alleges that Mahfouz chose that venue because of its more 22
favorable libel laws. Ehrenfeld did not appear in the English 23

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case and the English court issued a default judgment against 1
her stating, in most relevant part, that Ehrenfeld must refrain 2
from “publishing, or causing or authori[z]ing the further 3
publication” of the disputed statements about Mahfouz in 4
Funding Evil within the English court’s jurisdiction. 5
Basing federal jurisdiction on diversity, 28 U.S.C. § 6
1332, Ehrenfeld seeks a declaration under the Declaratory 7
Judgment Act, 28 U.S.C. § 2201, that (1) Mahfouz could not 8
prevail on a libel claim against Ehrenfeld under the laws of 9
New York and the United States; and (2) the judgment in the 10
English case is not enforceable in the United States on 11
constitutional and public policy grounds. 12
Mahfouz moved to dismiss Ehrenfeld’s suit for lack of 13
subject-matter jurisdiction and personal jurisdiction under, 14
respectively, Rules 12(b)(1) and 12(b)(2) of the Federal Rules 15
of Civil Procedure. The district court dismissed the case for 16
lack of personal jurisdiction and declined to address whether 17
subject matter jurisdiction existed. 18
II. DISCUSSION 19
A. Preliminary Issues 20
Before discussing the issue of personal jurisdiction under 21
N.Y. C.P.L.R. § 302(a)(1) and § 302(a)(3), we address two 22
preliminary matters. 23

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1 Neither party has distinguished between constitutional
and prudential ripeness, but it appears that their arguments
primarily go to the court’s prudential power to dismiss the case.
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1. Ripeness 1
We first address Mahfouz’s argument that subject matter 2
jurisdiction is lacking because the case is not “ripe.” “The 3
ripeness doctrine is drawn both from Article III limitations on 4
judicial power and from prudential reasons for refusing to 5
exercise jurisdiction.” Nat’l Park Hospitality Ass’n v. DOI, 6
538 U.S. 803, 808 (2003) (internal quotation marks omitted); 7
see also Simmonds v. I.N.S., 326 F.3d 351, 356-7 (2d Cir. 2003) 8
(“‘Ripeness’ is a term that has been used to describe two 9
overlapping threshold criteria for the exercise of a federal 10
court’s jurisdiction.”).1
11
Article III ripeness “prevents courts from declaring the 12
meaning of the law in a vacuum and from constructing 13
generalized legal rules unless the resolution of an actual 14
dispute requires it.” Simmonds, 326 F.3d at 357. This case 15
presents a “concrete dispute affecting cognizable current 16
concerns of the parties within the meaning of Article III,” 17
id., and is therefore ripe within the constitutional sense. 18

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2 When these three judges were combined in Yahoo! with
three other judges who voted to dismiss the case for lack of
personal jurisdiction, there was a majority of six votes of the
en banc court to dismiss the case. See Yahoo!, 433 F.3d at 1201.
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A case held not to be prudentially ripe reflects a court’s 1
judgment that the case would “be better decided later” and that 2
the parties’ “constitutional rights [would not be] undermined 3
by the delay.” Id. (emphasis omitted). Two factors inform our 4
analysis of prudential ripeness: 1) “the fitness of the issues 5
for judicial decision”; and 2) “the hardship to the parties of 6
withholding court consideration.” Abbott Labs. v. Gardner, 387 7
U.S. 136, 149 (1967). 8
In Yahoo! v. La Ligue Contre Le Racisme, 433 F.3d 1199 9
(9th Cir. 2006) (en banc), a case involving facts similar to 10
those here, a group of three judges of the 11-judge en banc 11
court stated that the case should be dismissed for lack of 12
prudential ripeness.2 These judges reasoned, in part, that the 13
question was not yet fit for judicial decision because the 14
foreign orders were interim orders that could be modified 15
before any attempt to enforce the orders in the United States. 16
Id. at 1215. It was therefore unclear whether enforcement of 17
the foreign court’s final order would be repugnant to 18
California’s public policy. 19

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Moreover, Yahoo! had voluntarily changed its policy to 1
comply at least partially with the interim order, so it was 2
unclear whether the foreign court would hold that Yahoo! was, 3
as a result, in compliance with the foreign court’s orders. 4
Id. at 1215, 1223. The same three judges stated: 5
The possible -- but at this point highly 6
speculative -- impact of further compliance 7
with the [foreign] court’s orders on access 8
by American users would be highly relevant 9
to the question whether enforcement of the 10
orders would be repugnant to California 11
public policy. But we cannot get to that 12
question without knowing whether the 13
[foreign] court would find that Yahoo! has 14
already complied “in large measure,” for 15
only on a finding of current noncompliance 16
would the issue of further compliance, and 17
possible impact on American users, arise. 18
19
Id. at 1217. Thus, these three judges concluded that they were 20
“uncertain about whether, or in what form, a First Amendment 21
question might be presented to [them],” id. at 1217, that the 22
suit came “perilously close to a request for a forbidden 23
advisory opinion,” id. at 1223, and that “[i]n its current 24
form, this case presents the sort of ‘[p]roblems of prematurity 25
and abstractness’ that counsel against reaching the First 26
Amendment question that Yahoo! insists is presented by this 27

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case,” id. at 1211 (quoting Socialist Labor Party v. Gilligan, 1
406 U.S. 583, 588 (1972)). 2
In contrast, in the case before us the English judgment is 3
a final order requiring Ehrenfeld to refrain from “publishing, 4
or causing or authori[z]ing the further publication” of the 5
disputed statements about Mahfouz in Funding Evil within the 6
English court’s jurisdiction. There has been no suggestion 7
that the order will be changed or that Ehrenfeld has instituted 8
a policy under which she will be in compliance with the order. 9
In other words, this case presents a clear and concrete issue 10
for resolution by a court and does not present any of the 11
problems of prematurity that characterized the Yahoo! case. We 12
therefore decline to dismiss the case for lack of prudential 13
ripeness. 14
2. Constitutional Due Process 15
The second preliminary matter concerns whether personal 16
jurisdiction in this case satisfies constitutional due process. 17
We note that even if the New York Court of Appeals concludes 18
that personal jurisdiction is proper under § 302(a)(1) of the 19
New York long-arm statute, this Court must make the ultimate 20
determination whether this jurisdiction satisfies 21
constitutional due process. See Metropolitan Life Ins. Co. v. 22

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Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir. 1996) (“[I]n 1
resolving questions of personal jurisdiction in a diversity 2
action, a district court must conduct a two-part inquiry. 3
First, it must determine whether the plaintiff has shown that 4
the defendant is amenable to service of process under the forum 5
state’s laws; and second, it must assess whether the court’s 6
assertion of jurisdiction under these laws comports with the 7
requirements of due process.”). We decline to address this 8
issue now because “the state statute is susceptible of an 9
interpretation that would eliminate the constitutional issue 10
and terminate the litigation.” Allstate Ins. Co. v. Serio, 261 11
F.3d 143, 151 (2d Cir. 2001) (internal quotation marks 12
omitted); see also id. at 151-2 (thoroughly discussing the 13
importance of the policy, also emphasized by the Supreme Court, 14
that federal courts avoid constitutional issues whenever 15
possible); but see Petroleum Helicopters, Inc. v. Avco Corp., 16
804 F.2d 1367, 1369 (5th Cir. 1986) (deciding constitutional 17
due process issue prior to certifying a question similar to the 18
one presented in this case). 19
B. Standard of Review 20
This court reviews questions of statutory interpretation 21
de novo. United States v. Pettus, 303 F.3d 480, 483 (2d Cir. 22
2002). But “it is well-established that the controlling 23

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3 This statute reads, in relevant part:
Section 500.27 Discretionary proceedings to
review certified questions from Federal
courts and other courts of last resort.
(a) Whenever it appears to the Supreme Court
of the United States, any United States Court
of Appeals, or a court of last resort of any
other state that determinative questions of
New York law are involved in a case pending
before that court for which no controlling
precedent of the Court of Appeals exists, the
court may certify the dispositive questions
of law to the Court of Appeals.
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interpretation of state laws should normally be given by state 1
rather than federal courts.” Yoon v. Fordham Univ. Faculty & 2
Admin. Ret. Plan, 263 F.3d 196, 203 (2d Cir. 2001). 3
C. Personal Jurisdiction Under New York’s Long-Arm 4
Statute 5
1. N.Y. C.P.L.R. § 302(a)(1) 6
a. Certification Generally 7
Certification is appropriate “[w]henever it appears . . . 8
that determinative questions of New York law are involved in a 9
case pending before [it] for which no controlling precedent of 10
the [New York] Court of Appeals exists.” N.Y. Comp. Codes R. & 11
Regs. tit. 22, § 500.27(a) (2006)3. However, questions are not 12
to be routinely certified “simply because a certification 13
procedure is available.” Kidney by Kidney v. Kolmar Labs., 14
Inc., 808 F.2d 955, 957 (2d Cir. 1987). Factors justifying 15
certification include “the absence of authoritative state court 16

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interpretations of the state statute, the importance of the 1
issue to the state and the likelihood that the question will 2
recur, and the capacity of certification to resolve the 3
litigation.” Green v. Montgomery, 219 F.3d 52, 60 (2d Cir. 4
2000); see also Krohn v. New York City Police Dep’t, 341 F.3d 5
177, 180 (2d Cir. 2003). The Court may also consider whether 6
the question implicates issues of state public policy. See 7
Krohn, 341 F.3d at 180. 8
b. New York State Law 9
This case presents a question regarding the scope of New 10
York C.P.L.R. § 302(a)(1) -- a provision of New York’s long-arm 11
statute -- that we have not previously addressed and about 12
which New York State court decisions do not yield a clear 13
answer. Section 302(a)(1) confers jurisdiction over a non- 14
domiciliary who “in person or through an agent ... transacts 15
any business within the state” if the cause of action arises 16
out of the defendant’s New York transactions. A non- 17
domiciliary “transacts business” in New York “by purposefully 18
avail[ing] [him or herself] of the privilege of conducting 19
activities within the ... State, thus invoking the benefits and 20
protections of its laws.” McKee Elec. Co. v. Rauland-Borg 21
Corp., 20 N.Y.2d 377, 382 (1967) (quoting Hanson v. Denckla, 22
357 U.S. 235, 253 (1958)) (internal quotation marks omitted); 23

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see also CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d 1
Cir. 1986). 2
Courts interpreting N.Y. C.P.L.R. § 302(a)(1) have held 3
that non-commercial activity may qualify as the “transaction of 4
business.” See Padilla v. Rumsfeld, 352 F.3d 695, 709 & n.19 5
(2d Cir. 2003), rev’d on other grounds, 542 U.S. 426 (2004). 6
In addition, a single transaction in New York may suffice to 7
invoke personal jurisdiction “even though the defendant never 8
enter[ed] New York, so long as the defendant’s activities here 9
were purposeful and there is a substantial relationship between 10
the transaction and the claim asserted.” PDK Labs, Inc. v. 11
Friedlander, 103 F.3d 1105, 1109 (2d Cir. 1997) (alteration in 12
original) (quoting Kreutter v. McFadden Oil Corp., 71 N.Y.2d 13
460, 467 (1988) (internal quotation marks omitted)). 14
On the other hand, a single “cease and desist” letter sent 15
to a New York resident in an attempt to settle legal claims 16
will not be sufficient to invoke personal jurisdiction. See 17
id. A cease-and-desist letter and subsequent communications 18
used to secure further New York investments (and not merely to 19
settle legal claims), by contrast, was held to be sufficient to 20
find personal jurisdiction under the “transacts business” 21
standard. See id. 22

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Ehrenfeld alleges that Mahfouz’s contacts with New York 1
were: 1) the service on Ehrenfeld of a letter stating Mahfouz’s 2
claims in English court (essentially a cease and desist 3
letter); 2) receipt by Ehrenfeld on at least six occasions of 4
letters and e-mails relating to the English case; 3) personal 5
service on Ehrenfeld by Mahfouz’s representatives on four 6
occasions of papers pertaining to the English case; and 4) 7
receipt by Ehrenfeld by e-mail and letter of the English 8
Court’s order. Ehrenfeld argues that Mahfouz had an additional 9
contact with New York: she says that he implemented a scheme 10
(which consisted of securing the English judgment and related 11
actions), all designed to chill her research and writing in New 12
York. Mahfouz also operates a website that can be accessed in 13
New York. New York courts have not addressed whether personal 14
jurisdiction should attach when the contacts with New York are 15
of this nature. 16
17
18
c. The Appropriateness of Certification 19
As discussed above, this case turns on an “unsettled” 20
question of state law for which there is “no direct precedent.” 21
See Alexander & Alexander Serve., Inc. v. Lloyd’s Syndicate 22
317, 902 F.2d 165, 169 (2d Cir. 1990); see also Westchester v. 23
Comm’r of Transp. of Conn., 986 F.2d 624, 627 (2d Cir. 1993) 24

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4 Ehrenfeld argues that if we are unsure whether New York’s
long-arm statute applies to Mahfouz’s alleged conduct, we should
certify to the New York Court of Appeals.
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(certifying “questions of first impression under Connecticut 1
law” for which “[t]here appear to be no controlling precedents 2
in Connecticut”); Israel v. State Farm Mut. Auto. Ins. Co., 239 3
F.3d 127, 136 (2d Cir. 2000) (certifying a case in which the 4
Court found “no Conecticut precedent directly addressing the 5
questions presented”). 6
Mahfouz argues that certification is nevertheless improper 7
because the case involves only a question of the application of 8
settled law to new facts; so, he says, no unsettled question of 9
state law is at stake.4 However, in Alexander & Alexander, we 10
stated that a question of first impression under the long-arm 11
statute “should be decided by the New York court because it 12
directly involves the application of an important public policy 13
of the State of New York, since that state has a strong 14
interest in deciding the jurisdictional reach of its courts.” 15
902 F.2d at 168-69. This statement, which Mahfouz does not 16
address, undermines his contention that a case involving the 17
application of the long-arm statute, which he deems settled 18
state law, to new facts may not be certified. As in Alexander 19
& Alexander, we certify “rather than having the only precedent 20
on point be that of a federal court, which may be mistaken.” 21
Id. at 169. 22

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5 The Rule reads, in full:
Certification of Questions of State Law
Where authorized by state law, this Court may
certify to the highest court of a state an
unsettled and significant question of state
law that will control the outcome of a case
pending before this Court. Such
certification may be made by this Court sua
sponte or on motion of a party filed with the
clerk of this Court. Certification will be
in accordance with the procedures provided by
the state’s legislature or highest state
court rules, e.g., Conn. Public Act No. 85-
111; New York Court of Appeals Rule 500.7.
Certification may stay the proceedings in
this Court pending the state court’s decision
whether to accept the certification and its
decision of the certified question.
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Furthermore, the question certified is significant, 1
implicates important public policy for the State of New York, 2
and is likely to be repeated. See Local Rule of the Second 3
Circuit § 0.275. The question is important to authors, 4
publishers and those, like Mahfouz, who are the subject of 5
books and articles. Thus, the question is “significant,” 6
within the meaning of Local Rule § 0.27. The issue may 7
implicate the First Amendment rights of many New Yorkers, and 8
thus concerns important public policy of the State. Because 9
the case may lead to personal jurisdiction over many defendants 10
who successfully pursue a suit abroad against a New York 11
citizen, the question before us is also likely to be repeated. 12
Cf. Alexander & Alexander, 902 F.2d at 169. (“[I]t is arguable 13
... that the New York courts will become a forum for suits 14

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6 Ehrenfeld also argues that the District Court improperly
denied her jurisdictional discovery that might have revealed
facts sufficient to sustain personal jurisdiction under N.Y.
C.P.L.R. § 302(a)(1). A District Court’s denial of
jurisdictional discovery is reviewed for abuse of discretion.
See Lehigh Valley Indus., Inc. v. Birenbaum, 527 F.2d 87, 93 (2d
Cir. 1975). Ehrenfeld contends that the District Court committed
an error of law by requiring her to make a prima facie showing of
jurisdiction before allowing discovery. Citing to Jazini v.
Nissan Motor Corp., 148 F.3d 181 (2d Cir. 1998), the District
Court stated that the “Second Circuit has disallowed
jurisdictional discovery where a plaintiff has failed to
establish a prima facie case and where there is a foreign
defendant because such logic would require all foreign defendants
to submit to discovery on this issue. Ehrenfeld’s request for
additional jurisdictional discovery is therefore denied.” The
District Court’s use of the term “disallowed” is arguably a
mischaracterization of Jazini, which held that a district court
did not err when it denied jurisdictional discovery to a
plaintiff suing a foreign corporation. See id. at 186. If the
District Court understood Jazini as forbidding jurisdictional
discovery any time a plaintiff does not make a prima facie
showing of jurisdiction, this would indeed be legal error. See
In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 206 (2d
Cir. 2003) (requiring only “legally sufficient allegations of
jurisdiction” to survive a pre-discovery motion to dismiss).
However, we think the District Court’s comment on Jazini should
be read as a justification of its exercise of discretion to deny
jurisdictional discovery, not as a clear limit on its authority
to exercise its discretion. Elsewhere, for example, the District
Court stated that it “finds that there exists no need for
additional jurisdictional discovery” -- a comment that does not
imply any bright-line cabining of its discretion.
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against any unauthorized alien or foreign insurer who benefits 1
from the existence of a trust fund in a bank located in New 2
York....”). 3
For the reasons detailed above, we believe that the New 4
York Court of Appeals can best resolve the issue of personal 5
jurisdiction under N.Y. C.P.L.R. § 302(a)(1) that we are 6
certifying.6
7

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2. N.Y. C.P.L.R. § 302(a)(3) 1
Alternatively, plaintiff argues that N.Y. C.P.L.R. § 2
302(a)(3) provides an independent basis for personal 3
jurisdiction under New York’s long-arm statute. Plaintiff 4
contends that she does not have to describe the elements of a 5
tort in order to state a cause of action arising under a 6
“tortious act” as required by N.Y. C.P.L.R. § 302(a)(3). 7
Rather, she argues, defendant’s wrongful “scheme” to chill her 8
First Amendment rights satisfies the statute. She relies 9
principally on the case of Garbellotto v. Montelindo Compagnie 10
Navegacion, 294 F.Supp. 487 (S.D.N.Y. 1969), which held that 11
personal jurisdiction existed under § 302(a)(3) where there was 12
a cause of action for breach of warranty, see id. at 488-89. 13
Yet even in that case, the Court noted that “[a] breach of 14
warranty ... is not only a violation of the sales contract ... 15
but is a tortious wrong....” Id. at 488 n.4. Plaintiff’s 16
argument, then, is that as long as a plaintiff describes an act 17
as somehow wrongful and not exclusively for breach of contract, 18
it can be considered “tortious.” There is, however, no 19
limiting principle to this argument. Any time a plaintiff 20
considered himself wronged for whatever reason, even if no 21
legally cognizable right of action existed, personal 22
jurisdiction would exist over the defendant in a declaratory 23
judgment suit. We do not believe certification is appropriate 24

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-18-
here, because we have seen no New York case law that ascribes 1
such a broad meaning to “tortious act.” See, e.g., Sung Hwan 2
Co. v. Rite Aid Corp., 7 N.Y.3d 78, 84-85 (2006) (holding that 3
an act considered tortious under Korean law was covered by § 4
302(a)(3), even though it provided for a remedy not available 5
under New York law). We recognize the possibility that the 6
claim brought in New York need not be a tort under New York law 7
to justify invocation of § 302(a)(3) to confer jurisdiction. 8
Id. Nonetheless, there must be some basis for considering the 9
defendant’s actions to be tortious, either under the law of New 10
York or some other pertinent jurisdiction. In this case, 11
plaintiff has shown no basis for considering defendant’s 12
actions to be tortious. Therefore, the District Court properly 13
found that it could not exercise personal jurisdiction over 14
defendant under § 302(a)(3). 15
16
17
III. Conclusion 18
For the reasons stated above, we affirm the District 19
Court’s opinion as to N.Y. C.P.L.R. § 302(a)(3) and 20
jurisdictional discovery. 21
Because of the absence of authoritative state court 22
precedent regarding the jurisdictional question raised under 23

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N.Y. C.P.L.R. § 302(a)(1), the fact that the answer may resolve 1
this litigation, and, most of all, the importance of the 2
question, its policy implications for the State and the 3
likelihood that the question will recur, we hereby respectfully 4
certify the following question to the New York Court of 5
Appeals: Does § 302(a)(1) of New York’s long-arm statute confer 6
personal jurisdiction over the defendant? 7
The certified question may be deemed expanded to cover any 8
further pertinent question of New York law involved in this 9
appeal that the Court of Appeals chooses to answer. This panel 10
retains jurisdiction and will consider any issues that may 11
remain on appeal once the New York Court of Appeals has either 12
provided us with its guidance, or declined certification. 13
It is therefore ordered that the Clerk of this Court 14
transmit to the Clerk of the Court of Appeals of the State of 15
New York a Certificate, as set forth below, together with a 16
complete set of briefs, appendices, and record filed by the 17
parties with this court. The parties are further ordered to 18
bear equally such fees and costs, if any, as may be required by 19
the New York Court of Appeals. 20
Certificate 21

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The foregoing is hereby certified to the Court of Appeals 1
of the State of New York, pursuant to 2d Cir. R. § 0.27 and 2
N.Y. Comp. Codes R. & Regs. tit. 22, § 500.27, as ordered by 3
the United States Court of Appeals for the Second Circuit. 4

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