Case 3:21-md-02996-CRB Document 439 Filed 10/27/22 Page 1 of 18
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`IN RE: MCKINSEY & COMPANY,
`INC. NATIONAL OPIATE
`CONSULTANT LITIGATION
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`Case No. 21-md-02996-CRB
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`
`ORDER DENYING MOTION TO
`DISMISS FOR LACK OF
`PERSONAL JURISDICTION
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`This multi-district litigation arises from consulting work that McKinsey &
`Company performed for several opioid companies. Plaintiffs consist of school districts,
`Indian tribes, political subdivisions, children with neonatal abstinence syndrome, and
`third-party payors from 31 states. Plaintiffs generally allege that McKinsey helped the
`opioid companies develop aggressive sales and marketing tactics to boost opioid sales,
`despite knowing that rapidly increasing supplies of opioids were causing serious harms in
`communities across the country. McKinsey moves to dismiss the claims of all Plaintiffs
`from 19 states for lack of personal jurisdiction. For the reasons discussed below, the Court
`denies McKinsey’s motion.
`I.
`BACKGROUND
`A.
`Parties
`McKinsey is a global management consulting firm with offices in over 130 cities
`across 65 countries. Political Subdivision Master Complaint (“Compl.”) (dkt. 295–2)
`¶ 29.1 Four McKinsey entities are named as defendants in this action: “McKinsey &
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`1 Factual allegations in all Master Complaints are the same. See Opp. (dkt. 347) at 3 n.6. For
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`Company, Inc.” is incorporated and has its principal place of business in New York, while
`“McKinsey Holdings, Inc.,” “McKinsey US,” and “McKisney & Company, Inc.
`Washington D.C.” are Delaware corporations with their principal places of business in
`New York (collectively, “McKinsey”). Compl. ¶¶ 24–27; Jain Decl. (dkt. 313–1) at 2.
`For purposes of this motion, Plaintiffs are persons and entities from Alaska,
`Arizona, Colorado, Hawai’i, Indiana, Kentucky, Louisiana, Maryland, Mississippi,
`Montana, New Mexico, Oklahoma, Oregon, Tennessee, Utah, Virginia, Washington, West
`Virginia, and Wisconsin (“subject states”). See Mot. (dkt. 313) at 4.
`B.
`The Complaint
`The complaint alleges that McKinsey “played a central role” in the opioid crisis by
`advising opioid companies on how “to sell as many opioids as conceivably possible.”
`Compl. ¶ 2. McKinsey allegedly “did more than just give advice”; it “worked
`collaboratively alongside its clients to implement McKinsey’s recommendations.” Id. ¶ 7.
`The work involved “strategy work—‘providing big picture advice to clients’—and
`implementation of the strategies” McKinsey devised. Id. ¶¶ 59–60, 62. In managing the
`implementation of the strategies it provided, McKinsey worked hand-in-hand with its
`clients. See id. In the words of one of the company’s employees, “you can’t even tell the
`difference between a McKinsey team member and one of our clients[.]” Id. ¶ 62, 64.
`Specific examples of McKinsey’s work are discussed in more detail below.
`1. McKinsey’s Contacts with the Subject States
`Plaintiffs’ allegations regarding McKinsey’s contacts with the subject states center
`on McKinsey’s work for Purdue Pharma, the pharmaceutical company that created and
`manufactured the blockbuster opioid OxyContin. See Compl. ¶¶ 10–11. McKinsey
`provided consulting services for Purdue for 15 years, including during the core of the
`national opioid epidemic. Id. ¶¶ 10–11, 101; Scheidler Decl. (dkt. 313-2) at 4. Between
`2009 and 2014, Purdue “relied extensively on McKinsey to develop and implement its
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`ease of reference, the Court primarily refers to Plaintiffs’ Political Subdivision Master Complaint.
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`Case 3:21-md-02996-CRB Document 439 Filed 10/27/22 Page 3 of 18
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`sales and marketing strategy for OxyContin.” Id. ¶ 106. During that time, McKinsey
`employed a “granular” approach in its work for Purdue, identifying specific geographic
`regions where the company could significantly increase sales of OxyContin. Id. ¶¶ 194,
`199, 478; Humphreville Decl. (dkt. 347-1) Ex. A at 50, Ex. D 1–3.
`McKinsey’s “micro market analysis” helped identify “important pockets of growth
`that Purdue should focus on.” Humphreville Decl. Ex. D at 2. As specific examples,
`McKinsey prepared an analysis titled “Micro Markets by Territory” that detailed the
`market attractiveness for OxyContin in “hundreds of cities, including locations in each of
`the subject states.” Opp. at 4 n.10; Humphreville Decl. Ex. B. The analysis ranked cities
`on an “Overall Favorability Index” that determined the likelihood that targeting the city
`would yield increased OxyContin sales. See Humphreville Decl. Ex. B. McKinsey also
`used prescriber-level data to create a map of the United States that ranked the market
`attractiveness of regions for OxyContin growth. See Opp. at 5; Compl. ¶ 249;
`Humphreville Decl. Ex. A at 0, 50. McKinsey’s analysis discusses the market
`attractiveness of cities located in several of the subject states, including Colorado,
`Kentucky, Maryland, Oklahoma, Utah, Virginia, Washington, and Wisconsin. Opp. at 4;
`Humphreville Decl. Ex. A at 51. These efforts were part of a broader strategy focused on
`boosting opioid sales nationwide.
`McKinsey also sought to target “existing high prescribers” of OxyContin, including
`in the several of the subject states. Compl. ¶ 255. McKinsey prepared an analysis for
`Purdue of another map of the United States that detailed at the zip-code level total
`prescription growth for OxyContin across all 50 states. Opp. at 4; Compl. ¶¶ 51, 194–207,
`478. The map includes a chart with example zip codes that identify where a growth or
`decline in OxyContin prescriptions occurred. Compl. ¶ 478. Similar to McKinsey’s other
`analysis, the chart includes market analysis for multiple subject states. Id.
`Additionally, McKinsey helped Purdue target specific doctors through a project
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`Case 3:21-md-02996-CRB Document 439 Filed 10/27/22 Page 4 of 18
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`titled “Evolve to Excellence” (“E2E”).2 Id. ¶¶ 244, 255–69. McKinsey and Purdue
`executives headed the E2E Executive Oversight Team. Humphreville Decl. Ex. E at 5.
`The primary goal of E2E was “to significantly bolster OxyContin . . . sales.” Id. Ex. E at
`4. McKinsey designed E2E and oversaw “the creation of target lists, internal dashboards
`to track progress, and changes to Purdue’s incentive compensation plan.” Compl. ¶¶ 238–
`39, 242, 244, 254. As part of the E2E initiative, McKinsey prepared an analysis
`identifying 30,704 prescribers in almost all of the subject states. Humphreville Decl. Ex.
`F. The analysis included details such as the specialty of the prescriber (e.g., Family
`Medicine or Anesthesiology), the prescriber’s location, and the prescriber’s “OxyContin
`Valuation.” Id. McKinsey used this data to create prescriber profiles and worked with
`Purdue’s sales staff to develop sales messages likely to persuade specific prescribers. See
`Compl. ¶¶ 205–07.
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`McKinsey also worked with Purdue sales representatives in the field. McKinsey
`consultants accompanied Purdue representatives on sales visits in several subject states.
`Opp. at 7; Humphreville Decl. Ex. H at MCK-MDL2996-0310910-11, Ex. I. The “ride-a-
`longs” with Purdue sales representatives helped McKinsey consultants “gain as much
`insight as possible into prescriber’s responses to [Purdue’s] promotion of OxyContin.”
`Humphreville Decl. Ex. J. They were part of the hand-in-hand process that McKinsey
`employed to help Purdue refine its nationwide and state-specific sales and marketing
`campaigns. See id.
`C.
`Procedural Posture
`Plaintiffs filed their Master Complaints on December 6, 2021. McKinsey moves to
`dismiss all of Plaintiffs’ claims in the subject states for lack of personal jurisdiction. See
`Mot. at 1. Plaintiffs opposed the motion, and McKinsey replied. See Opp. at 1–2; Reply
`(dkt. 363) at 1.
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`2 “Evolve to Excellence” is also known as “Project Turbocharge.” Compl. ¶ 244.
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`II.
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`LEGAL STANDARD
`Under Federal Rule of Civil Procedure 12(b)(2), a defendant may move to dismiss
`for lack of personal jurisdiction. In assessing whether personal jurisdiction exists, the
`court may consider evidence presented in affidavits or order discovery on jurisdictional
`issues. Data Disc, Inc. v. Sys. Tech. Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977).
`“When a district court acts on a defendant’s motion to dismiss under Rule 12(b)(2) without
`holding an evidentiary hearing, the plaintiff need make only a prima facie showing of
`jurisdictional facts to withstand the motion to dismiss.” Ballard v. Savage, 65 F.3d 1495,
`1498 (9th Cir. 1995).
`A prima facie showing is established if the plaintiff produces admissible evidence
`which, if believed, would be sufficient to establish personal jurisdiction. See Harris
`Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d. 1122, 1129 (9th Cir.
`2003). “[U]ncontroverted allegations in [the plaintiff’s] complaint must be taken as true,
`and conflicts between the facts contained in the parties’ affidavits must be resolved in [the
`plaintiff’s] favor.” Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1127
`(9th Cir. 2010). However, “bare bones assertions of minimum contacts with the forum or
`legal conclusions unsupported by specific factual allegations will not satisfy a plaintiff’s
`pleading burden.” Swartz v. KPMG LLP, 476 F.3d 756, 766 (9th Cir. 2007).
`A federal district court’s jurisdiction over a defendant is the same as “the
`jurisdiction of a court of general jurisdiction in the state where the district court is located.”
`Fed. R. Civ. P. 4(k)(1)(A). To determine whether it can exercise jurisdiction, a district
`court employs a two-step inquiry. First, “the plaintiff must show . . . the forum state’s long
`arm statute confers personal jurisdiction over the out-of-state defendants.” Gray & Co. v.
`Firstenberg Mach. Co., 913 F.2d 758, 760 (9th Cir. 1990). Second, “the exercise of
`jurisdiction [must] not violate federal constitutional principles of due process.” Id. When
`a state’s long-arm statute permits the exercise of jurisdiction to the limits of due process,
`the two-step inquiry collapses into one: “whether the exercise of jurisdiction . . . comports
`with due process.” Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284
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`F.3d 1114, 1123 (9th Cir. 2002). All of the Subject states—except Mississippi3—permit
`the exercise of jurisdiction to the limits of due process.4
`Under the Fourteenth Amendment’s due process clause, “a tribunal’s authority
`depends on the defendant having such ‘contacts’ with the forum State that ‘the
`maintenance of the suit’ is ‘reasonable, in the context of our federal system of
`government,’ and ‘does not offend traditional notions of fair play and substantial justice.’”
`Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1024 (2021) (quoting
`International Shoe Co. v. Washington, 326 U.S. 310, 316–17 (1945)). This inquiry “has
`long focused on the nature and extent of ‘the defendant’s relationship with the forum
`state.’” Id. (quoting Bristol-Myers Squibb Co. v. Super. Ct. of Cal., San Francisco Cnty.,
`137 S. Ct. 1773, 1779 (2017)). And that “focus” has resulted in “two kinds of personal
`jurisdiction: general (sometimes called all-purpose) jurisdiction and specific (sometimes
`called case-linked) jurisdiction.” Id.
`A federal court may exercise general jurisdiction over a defendant only if the
`defendant is “essentially at home” in the forum state. Goodyear Dunlop Tires Operations,
`S.A. v. Brown, 564 U.S. 915, 919 (2011). General jurisdiction depends on the defendant’s
`relationship with the forum state—for companies, the question is whether the defendant is
`incorporated, headquartered, or otherwise “at home” there. Ford Motor Co., 141 S. Ct. at
`1024.
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`Specific jurisdiction is “different” in that it “covers defendants less intimately
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`3 Plaintiffs’ allegations meet the requirements of Mississippi’s long-arm statute. See Seiferth v.
`Helicopteros Atuneros, Inc., 472 F.3d 266, 270 (5th Cir. 2006).
`4 McKinsey asserts that Oklahoma’s long-arm statute is “narrower than the limits of constitutional
`due process.” See Mot. at 11 n.7. That is incorrect. The Oklahoma Supreme Court has stated that
`Oklahoma’s long-arm statute extends to “the outer limits permitted by . . . the due process clause
`of the United States Constitution.” Hough v. Leonard, 867 P.2d 438, 442 (Okla. 1993). Similarly,
`although Wisconsin’s long-arm-statute “has been interpreted to confer jurisdiction to the fullest
`extent allowed under the due process clause” (see Felland v. Clifton, 682 F.3d 665, 678 (7th Cir.
`2012) (quotations omitted)), Wisconsin law also requires that courts determine whether a
`defendant is “subject to jurisdiction under Wisconsin’s long-arm statute.” Thomas v. Ford Motor
`Co., 289 F. Supp. 3d 941, 943 (E.D. Wis. 2017). However, the long-arm statute inquiry “is easily
`resolved . . . [o]nce the requirements of due process are satisfied” because Wisconsin’s long-arm
`statute “has been interpreted to go the lengths of due process.” Felland, 682 F.3d at 678.
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`connected with a State” and “only as to a narrower class of claims.” Id. While general
`jurisdiction depends on the relationship between the defendant and the forum, specific
`jurisdiction depends on the relationship between “the defendant, the forum, and the
`litigation.” Walden v. Fiore, 571 U.S. 277, 284 (2014) (quoting Keeton v. Hustler Mag.,
`Inc., 465 U.S. 770, 775 (1984)). “Although a nonresident defendant’s physical presence
`within the territorial jurisdiction of the court is not required,” such a defendant must still
`have “minimum contacts” with the forum state “such that the suit does not offend
`traditional notions of fair play and substantial justice.” Id. at 283 (citation omitted).
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`As a framework for applying these principles, the Ninth Circuit has “established a
`three-prong test for analyzing a claim of specific personal jurisdiction.” Schwarzenegger
`v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). In particular:
`(1)
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`The non-resident defendant must purposefully direct his activities or
`consummate some transaction with the forum or resident thereof; or perform
`some act by which he purposefully avails himself of the privilege of
`conducting activities in the forum, thereby invoking the benefits and
`protections of its laws;
`the claim must be one which arises out of or relates to the defendant’s forum-
`related activities; and
`the exercise of jurisdiction must comport with fair play and substantial
`justice, i.e., it must be reasonable.
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`(2)
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`(3)
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`Id. (citation omitted).5
`III. DISCUSSION
`Plaintiffs do not contend that McKinsey is subject to general jurisdiction in any of
`the subject states. See Reply at 3. Thus, the question is whether McKinsey is subject to
`specific jurisdiction in the subject states. See id. To establish specific jurisdiction,
`Plaintiffs must demonstrate that McKinsey purposefully directed activities at the subject
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`5 Under the first prong, the Ninth Circuit treats “purposeful direction” and “purposeful availment”
`as “two distinct concepts.” Schwarzenegger, 374 F.3d at. 802. “A purposeful availment analysis
`is most often used in suits sounding in contract,” while a “purposeful direction analysis . . . is most
`often used in suits sounding in tort.” Id. Because Plaintiffs’ claims sound in tort (and not
`contract), the purposeful direction test applies here. See id.; Mot. at 15; Opp. at 8.
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`states, and that Plaintiffs’ claims arise out of or relate to McKinsey’s forum-related
`activities. See Schwarzenegger, 374 F.3d at 802. If Plaintiffs meet their burden for the
`first two prongs, then McKinsey must show that exercising jurisdiction would be
`unreasonable. See id. For the reasons discussed below, Plaintiffs have established that
`McKinsey purposefully directed its activities at the subject states and that their claims arise
`from those activities. And McKinsey has not established that exercising jurisdiction over
`it would be unreasonable. McKinsey’s motion is therefore denied.
`A.
`Purposeful Direction
`To establish purposeful direction, a plaintiff must show that the defendant “(1)
`committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that
`the defendant knows is likely to be suffered in the forum state.” Id. at 803 (citing Calder v.
`Jones, 465 U.S. 783 (1984); Dole Foods Co., Inc. v. Watts, 303 F.3d 1104, 1111 (9th Cir.
`2002)).
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`1.
`Intentional Act
`Plaintiffs have established that McKinsey committed intentional acts directed
`toward the subject states. To satisfy the intentional act prong, “the defendant must act with
`the ‘intent to perform an actual, physical act in the real world.’” Picot v. Weston, 780 F.3d
`1206, 1214 (9th Cir. 2015) (quoting Schwarzenegger, 374 F.3d at 806). McKinsey
`performed numerous acts directed at the subject states. These acts included creating
`granular analyses of market attractiveness of the subject states, creating target lists of
`prescribers in the subject states, working alongside Purdue sales representatives in the
`subject states, and working with Purdue to implement sales strategies in the subject states.
`See id.; Compl. ¶¶ 51, 194–207, 238–39; 242, 244, 249, 254, 478; Humphreville Decl. Ex.
`A at 50–51, Ex. B, Ex. F, Ex. H–J.
`2.
`Expressly Aimed
`Plaintiffs argue that McKinsey’s actions were expressly aimed at the subject states
`for two reasons. See Opp. at 9. First, McKinsey designed a nationwide sales campaign for
`Purdue that caused harm in the subject states. See id. Second, to increase opioid sales in
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`the subject states, McKinsey employed a granular approach that involved “specifically
`tailored strategies aimed at each subject state.” See id. at 10.
`McKinsey, on the other hand, argues that its actions were only aimed at its clients.
`See Mot. at 16; Reply at 7. Because McKinsey’s clients are not located in the subject
`states, McKinsey argues that it did not expressly aim its conduct at the subject states. See
`Mot. at 16–17; Reply at 10–11; see also Mot. at 24 (Plaintiffs “do not connect the services
`McKinsey allegedly provided for those manufacturers to the Subject states.”).
`Under the express aiming prong, courts assess a defendant’s connection to the
`forum state. See Picot, 780 F.3d at 1214. The inquiry centers on whether the defendant
`specifically targeted the forum state. See Morrill v. Scott Fin. Corp., 873 F.3d 1136, 1143
`(9th Cir. 2017) (citing Walden, 571 U.S. at 284). A defendant does not expressly aim its
`activities at the forum state when the unilateral activity of a plaintiff or third party is the
`defendant’s only connection to the forum state. See Walden, 571 U.S. at 284–85 (citing
`World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291–92 (1980)). Rather, the
`focus is on the defendant’s “own contacts,” i.e., “contacts that the defendant himself
`creates with the forum state.”6 See id. (emphasis in original); Axiom Foods, Inc. v.
`Acerchem Int’l, Inc., 874 F.3d 1064, 1070 (9th Cir. 2017).
`The express aiming prong is met when a defendant specifically tailors its activities
`to target the forum state. In Ayla, LLC v. Alya Skin Pty. Ltd., the Ninth Circuit held that a
`defendant who sold products internationally expressly aimed its activities at the United
`States because it tailored its promotions to U.S. residents. See 11 F.4th 972, 980 (9th Cir.
`2021). There, the plaintiff sued the foreign defendant, alleging that the defendant’s
`product infringed on the plaintiff’s trademark. Id. at 977. The defendant moved to dismiss
`for lack of personal jurisdiction, and the district court granted the defendant’s motion,
`
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`6 Walden changed how the Ninth Circuit applied the express aiming prong. See Axiom, 874 F.3d
`at 1069–70. Before Walden, the Ninth Circuit had held that “wrongful conduct targeted at a
`plaintiff whom the defendant knows to be a resident of the forum state” satisfied the express
`aiming test. Id. at 1069. After Walden, the court held that individualized targeting of a plaintiff
`who resides in the forum state, without more, is not enough for express aiming. Id. at 1070.
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`finding that the defendant’s “marketing targeted sales internationally rather than
`specifically at Americans.” Id. at 977, 980.
`The Ninth Circuit reversed. Id. at 980. It reasoned that the defendant had
`purposefully directed its activities at the United States by promoting “its allegedly
`infringing product by means of references explicitly aimed at Americans.” Id. at 980. For
`example, the defendant advertised on Instagram: “ATTENTION USA BABES WE NOW
`ACCEPT afterpay.” Id. The defendant also advertised “Black Friday” sales on its
`Facebook page, which it knew was “America’s biggest shopping day,” and promoted on its
`website that American magazines featured its products. Id. The Ninth Circuit held that the
`defendant “satisfied the purposeful direction requirement by directing ‘an insistent
`marketing campaign toward the forum.’” Id. at 981 (quoting Rio Props., v. Rio Int’l
`Interlink, 284 F.3d 1007, 1020 (9th Cir. 2002)).
`Furthermore, express aiming does not require that the out-of-state defendant itself
`disseminate or sell a product that causes harm in the forum. For example, in Calder v.
`Jones, the U.S. Supreme Court held that intentional acts outside of the forum that
`contribute to an effect felt in the forum can satisfy the express aiming requirement. 465
`U.S. 783, 789–90 (1984). In that case, the Supreme Court held that a Florida-based
`reporter and editor for the National Enquirer were subject to jurisdiction in California for
`an allegedly libelous article that they wrote about a California resident. Id. at 784–86,
`788–89. The defendants argued that they did not purposefully direct their conduct at
`California because the National Enquirer made the decision to disseminate the article in
`California, not them. Id. at 789. The defendants argued that as employees they “could not
`control their employer’s marketing activity,” and the “mere fact that they [could] foresee”
`the National Enquirer circulating their article in California was not sufficient to establish
`jurisdiction. Id. The Court rejected the defendants’ argument, reasoning that the
`defendants’ “intentional, and allegedly tortious, actions were expressly aimed at
`California” because they wrote the article knowing it “would have a potentially devastating
`impact” in California, where the National Enquirer had its “largest circulation.” Id. at
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`789–90. The Supreme Court thus held that jurisdiction over the defendants in California
`was proper. Id.; see also Lions Gate Ent. Inc. v. TD Ameritrade Servs. Co., Inc., 170 F.
`Supp. 3d 1249, 1254, 1261–62 (C.D. Cal. 2016).
`Here, Plaintiffs allege that McKinsey not only knew that the effects of its sales and
`marketing work for Purdue would be felt in the subject states, they allege that McKinsey
`advised Purdue where and how it should implement its marketing and sales strategies in
`the subject states. See Compl. ¶¶ 2, 194–207, 238–39, 249, 254–69, 456, 478;
`Humphreville Decl. Ex. A at 50–51, Ex. B, Ex. D at 2–3, Ex. F. Plaintiffs allege that
`McKinsey helped create the marketing and sales strategies that Purdue implemented in the
`subject states, and that McKinsey exercised “control [over Purdue’s] marketing activity” in
`the subject states. See Calder, 465 U.S. at 489; Compl. ¶¶ 106, 194–207, 238–39, 249,
`254–69, 478; Humphreville Decl. Ex. A at 50–51, Ex. B, Ex. D at 2–3, Ex. F.
`Like the defendant in Ayla, McKinsey specifically tailored its sales and marketing
`advice to target the subject states. See 11 F. 4th at 980; Humphreville Decl. Ex. A at 50–
`51, Ex. B, Ex. F. McKinsey took a granular and data-driven approach to identify “pockets
`of growth” where Purdue could increase its OxyContin sales. See Humphreville Decl. Ex.
`D at 2–3. This analysis resulted in McKinsey advising Purdue to increasingly target high
`prescribers of opioids in the subject states. See id. Ex. B; Compl. ¶ 255. McKinsey also
`analyzed data on hundreds of cities in the subject states and ranked their overall
`favorability. See Humphreville Decl. Ex. B. It oversaw “the creation of target lists and
`internal dashboards to track progress,” collecting details on thousands of prescribers in the
`subject states and developing sales messages based on the prescribers’ unique profiles.
`See id. Ex. F; Compl. ¶¶ 204–07, 254. Not only did McKinsey advise Purdue on how to
`initiate and focus its contacts with the Subject states, it also had boots on the ground in the
`subject states, sending its consultants on “ride-a-longs” with Purdue sales associates to
`improve and refine sales strategies. See id. Ex. J; Opp. at 7; see also Walden, 571 U.S. at
`285 (Physical presence in a state “is certainly a relevant contact.”). McKinsey’s multi-year
`engagement with Purdue to develop and implement sales and marketing strategies directed
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`toward the subject states suffices to meet the express aiming requirement.
`In arguing that there is no basis for personal jurisdiction in the subject states,
`McKinsey effectively contends that it can help Purdue develop and manage strategies to
`increase opioid sales in the subject states, but that it cannot be subject to jurisdiction when
`those strategies result in increased opioid sales that cause harm in the subject states. See,
`e.g., Mot. at 16–17. The argument is not persuasive. McKinsey is “not charged with mere
`untargeted negligence,” Calder, 465 U.S. at 789, and it is not being subjected to specific
`jurisdiction based on “‘random, fortuitous, or attenuated’ contacts” that resulted from its
`interactions with other people affiliated with the subject states, Walden, 571 U.S. at 286
`(quoting Burger King, 471 U.S. at 475). To the contrary, Plaintiffs plausibly allege that
`McKinsey’s actions significantly contributed to the wide-ranging harms that have affected
`the Subject states. See Calder, 465 U.S. at 789–90; see also Walden, 571 U.S. at 288 n.7.
`Plaintiffs plausibly allege that for several years, McKinsey played an instrumental role in
`developing and overseeing aggressive marketing strategies designed to boost opioid sales
`in the subject states, despite being aware of the severe harm that increasing supplies of
`opioids were inflicting on communities in the subject states. 7 See, e.g., Compl. ¶¶ 106,
`238–39, 242, 244, 456; Humphreville Decl. Ex. E at 5. As a result, McKinsey is not like
`“a welder employed in Florida who works on a boiler which subsequently explodes in
`California.” See Calder, 465 U.S. at 789. McKinsey is more akin to an advertising agency
`that advised a manufacturer on how to sell boilers to residents of specific states, despite
`knowing that the boilers carried a significant risk of exploding. See id. at 789–90; Lions
`Gate, 170 F. Supp. 3d at 1254, 1261–62.8
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`7 McKinsey’s argument that it is simply a “service provider” is not persuasive, and the cases that
`it relies on for this argument are inapposite. See, e.g., Opp. at 21; Reply at 7–8; Trierweiler v.
`Croxton & Trench Holding Corp., 90 F.3d 1523, 1534 (10th Cir. 1996) (holding that a Colorado
`law firm was not subject to jurisdiction in Michigan based on a single opinion letter it wrote for a
`Colorado client that later forwarded the letter to Michigan); Fletcher Fixed Income Alpha Fund,
`Ltd. v. Grant Thornton LLP, 89 Mass. App. Ct. 718, 723 (2016) (holding that an out-of-state
`auditor was not subject to jurisdiction in Massachusetts based on an audit report that it sent to its
`New York client who later forwarded the report to Massachusetts).
`8 McKinsey attempts to distinguish itself from the defendants in Calder and Lions Gate by stating
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`There is no random or attenuated chain of contacts here. Plaintiffs have plausibly
`alleged that McKinsey intentionally and purposefully directed contacts at the subject states
`for several years. Plaintiffs have thus made a prima facie showing that the express aiming
`requirement is met.9
`3.
`Foreseeable Harm
`Under the third prong, courts ask whether the defendant knew its intentional act
`would cause harm in the forum state. See Schwarzenegger, 374 F.3d at 803. The focus of
`the inquiry “is not the magnitude of the harm, but rather its foreseeability.” Lindora, LLC
`v. Isagenix Int’l, LLC, 198 F. Supp. 3d 1127, 1141 (S.D. Cal. 2016).
`Plaintiffs adequately allege that McKinsey knew that developing aggressive
`strategies to “turbocharge” opioid sales during the midst of a nationwide opioid epidemic
`would cause harm in the subject states. For example, Plaintiffs allege that McKinsey
`briefed Purdue regarding OxyContin abuse and that it was generally aware of the harm
`caused by increasing sales of opioids. See Compl. ¶ 456. A McKinsey presentation states
`that “[m]ost prescribers are concerned about [opioid] abuse” and that “side effects and
`addiction are concerns.” See id. McKinsey worked with Purdue to “counter emotional
`messages from mothers with teenagers that overdosed in [sic] OxyContin.” See id. ¶ 182.
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`that “McKinsey did not create content aimed at an audience that another party published;
`McKinsey provided advice to clients, who then chose to act on the advice or not.” See Reply at 7.
`But Plaintiffs allege that McKinsey did “create content”—sales and marketing strategies—aimed
`at the Subject states that it later helped Purdue implement. See, e.g., Compl. ¶¶ 204–09, 214, 254;
`Humphreville Decl. Ex. D at 2–3, Ex. A at 50–51. Furthermore, McKinsey states that Lions Gate
`was appropriately distinguished by New Venture