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

- 2 - 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

- 3 - 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

- 4 - "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

- 5 - 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

- 6 - 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

. 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.,

, 54 (1st Cir. 2020) (quoting Baskin-Robbins Franchising

LLC v. Alpenrose Dairy, Inc.,

(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.,

, 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

- 7 - 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,

(D. Mass. Nov. 21, 2019). The

District Court "note[d] that [the long-arm statute] would likely

also be satisfied under section 3(d)."

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

- 8 - 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,

(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.,

, 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.

- 9 - state activity of disseminating the website and the website's

content in Massachusetts." Lin,

, 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.,

(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.'"

at 675 (quoting

U.S.S. Yachts, Inc. v. Ocean Yachts, Inc.,

(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.

- 10 - construe them in the light most congenial to the plaintiff's

jurisdictional claim." Mass. Sch. of L.,

. We have

cautioned that the "liberality of this approach" does not mean

that we must "credit conclusory allegations or draw farfetched

inferences."

(quoting Ticketmaster-N.Y., Inc. v. Alioto,

(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.,

(1st Cir. 1995)). Our

review is de novo. See

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.

- 11 - 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

- 12 - 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,

(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.

- 13 - 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.

.

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.

. Thus, the

question was whether the plaintiff could satisfy the requirements

of relatedness, purposeful availment, and reasonableness. See

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

. With

respect to the relatedness requirement, Scottsdale explained that,

given the nature of the legal claim at issue there, the relatedness

- 14 - 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.

.

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.

. 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.

. 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."

. 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).'"

- 15 -

at 20-21 (quoting Mass. Sch. of L.,

). 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,

. 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,

("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.").

- 16 - state activity) and legal cause (i.e., the defendant's in-state

conduct gave birth to the cause of action)." See

at 20-21

(quoting Mass. Sch. of L.,

). 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.,

(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

.

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

- 17 - 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

.

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

- 18 - purportedly defamatory information was seen by an individual in

the forum state.

. 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

. 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,

, 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.

- 19 - Lights Club,

(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.

- 20 - 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,

, 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

- 21 - other grounds,

(D.N.H. Oct. 2, 2020); cf. Brown v.

Dash, No. 20-10980-FDS,

, 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,

, 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

- 22 - 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"

- 23 - 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,

(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

- 24 - 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.

- 25 - 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

- 26 - 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,

(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

(distinguishing the facts in Keeton v. Hustler Mag.,

- 27 - Inc.,

(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,

(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

. 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

- 28 - had signed up to receive. See

. 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."

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

- 29 - 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."

. 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.

- 30 -