Nielsen Consumer LLC v. LiveRamp Holdings, Inc.

Opinion

NIELSEN CONSUMER LLC, Case No. 24-cv-07355-SVK

Plaintiff, ORDER DENYING MOTION TO v. TRANSFER

LIVERAMP HOLDINGS, INC., et al., Re: Dkt. No. 56 Defendants.

Plaintiff Nielsen Consumer LLC (“Nielsen”) accuses Defendants LiveRamp Holdings, Inc and LiveRamp, Inc. (collectively, “LiveRamp”) of infringing two of its trademarks. Dkt. 1. (the “Complaint”). This Court previously denied LiveRamp’s motion to dismiss the Complaint. Dkt. 53. Now before the Court is LiveRamp’s motion to transfer the case to the Northern District of Illinois (the “Motion”). Dkt. 56 (“Mot.”). Nielsen opposes the Motion. Dkt. 60 (“Opp.”). At the heart of the Parties’ dispute are two issues: (1) Nielson’s companion action against Circana, LLC (“Circana”) in the Northern District of Illinois, alleging, inter alia, Circana’s infringement of the same trademark; and (2) Circana’s relationship with LiveRamp. Mot. at 1-2, 5; Opp. at 2; see Nielsen Consumer LLC v. Circana, LLC, No. 1:24-cv-10946 (N.D. Ill.) (the “Circana Action”). The Motion came on for hearing on May 20, 2025. Having considered the Parties’ submissions and oral arguments, the relevant law and the record in this action, the Court hereby DENIES LiveRamp’s motion to transfer.1

1 Nielsen also filed an Administrative Motion for Leave to File a Sur-Reply as to the Motion, which LiveRamp opposes. Dkts. 66, 68-69. The Court agrees with LiveRamp that Nielsen’s sur- reply merely seeks to distinguish case law cited by LiveRamp in its reply and that, while the case law cited by LiveRamp was new, the argument was not. See Dkt. 69 at 1-2. Distinguishing case law is not a proper use of a sur-reply under this District’s Local Rules, (see N.D. Cal. L.R. 7- The background of the Parties’ dispute is set forth in this Court’s prior order. See Dkt. 53 at 1-3. As before, the background herein is drawn from the allegations contained in the Complaint, taken as true.2 In short, Nielsen offers consumer-facing manufacturers and retailers access to its “Label Insight” platform, “a product and service” comprised of “data and tools that help [users] understand consumer behavior in their markets.” See Compl., ¶¶ 22-23; Dkt. 55 (“Answer”), ¶¶ 22-23. Two trademarks relating to the “Label Insight” data platform (the “Label Insight Marks”) are at issue in this case. See Compl., ¶¶ 29, 32-33; Answer, ¶¶ 29, 32; but see Answer, ¶ 33 (alleging that on February 3, 2025, Circana filed for cancellation of Nielsen’s federal Label Insight Mark, “which could result in revocation of the registration”). As relevant to the Motion, LiveRamp is a Delaware corporation with its principal place of business in San Francisco, California. Compl., ¶¶ 17-18. “LiveRamp is a data connectivity platform,” essentially a middleman that “offers products and/or data from third-party companies” to its customers “and then pays th[ose] third-party company[ies] for use of their data.” See Compl., ¶¶ 11, 13; Answer, ¶¶ 11, 13. One such third party is Circana. Compl., ¶ 12; Answer, ¶ 12. Circana is a competitor of Nielsen in the market for data analytics, (see Compl., ¶ 38; Answer, ¶ 38), and LiveRamp—for the purposes of the Motion—“collaborate[s]” with Circana “to make Circana’s deterministic data available within LiveRamp’s data platform,” (Compl., ¶ 12; but see Answer, ¶ 12)3. LiveRamp makes its data offerings, including those from Circana, available on its website, which is available across the United States. See Compl., ¶ 12; Dkt. 62 (“Reply”) at 5. The Parties 2 “In determining whether to grant a motion to transfer venue, ‘uncontroverted allegations in [a] 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.’” All-Tex, Inc. v. Aramsco, Inc., No. 18- cv00410-DSF (EX), 2018 WL 11473762, at *1 (C.D. Cal. Mar. 14, 2018) (quoting Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1129 (9th Cir. 2010), abrogated on other grounds, see Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064, 1069 (9th Cir. 2017) (explaining the impact of Walden v. Fiore, 571 U.S. 277 (2014))). 3 LiveRamp pleads that its “website and Circana’s press release speak[s] for themselves” and “denies any allegations inconsistent with them,” but LiveRamp does not otherwise deny the Nielsen’s allegation. Answer, ¶ 12. Given LiveRamp’s reliance on paragraph 12 both in its brief agree that LiveRamp and Circana also have a contractual relationship for the provision of data, although the contract itself is not a part of the record in this action. Opp. at 7; Reply at 1, 5. Further, according to allegations in the Circana Action, (Circana Action, Dkt. 31 (“Circana Am. Compl.”)), Circana is a Delaware company with its principal place of business in Chicago, Illinois. Circana Am. Compl., ¶ 42.4 “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). “The Court’s transfer inquiry proceeds in two steps. First, the Court determines ‘whether the transferee district was one in which the action might have been brought by the plaintiff.’” California v. Bureau of Land Mgmt., No. 18-cv-00521-HSG, 2018 WL 3439453, at *2 (N.D. Cal. July 17, 2018) (quoting Hoffman v. Blaski, 363 U.S. 335, 343-44 (1960)). Only if so, “the Court conducts an individualized case-specific analysis of convenience and fairness.” Id., (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quotations omitted)). As to the first step, a “transferee court must: (1) be able to exercise personal jurisdiction over the defendants, (2) have subject matter jurisdiction over the claim, and (3) be a proper forum.” Albertson v. Monumental Life Ins. Co., No. 08-cv-05441-RMW, 2009 WL 3870301, at *2 (N.D. Cal. Nov. 16, 2009) (citing Hoffman, 363 U.S. at 343-44). “The moving party bears the burden of showing that jurisdiction and proper venue would exist in the district to which a transfer is requested.” Wireless Consumers All., Inc. v. T-Mobile USA, Inc., No. 03-cv-03711-MHP, 2003 WL 22387598, at *1 (N.D. Cal. Oct. 14, 2003).

The Parties focus their arguments on two issues: whether the Northern District of Illinois would have had personal jurisdiction over LiveRamp, under step one; and the various case- specific factors of convenience and fairness of step two. See Dkts. 56, 60, 62. As an initial matter, the Court may deny the Motion if it finds any of the first step requirements (personal jurisdiction, subject matter jurisdiction and venue) lacking. 28 U.S.C. § 1404(a). Additionally, if any of these first step requirements are not met, the Court need not reach the second step of the transfer inquiry. See Hoffman, 363 U.S. at 341–42 (1960). Accordingly, because the Court determines that LiveRamp has failed to show that the Northern District of Illinois had personal jurisdiction at the time suit was brought, the Court need not address any of the other issues raised by the Parties. Whether the case “might have been brought” in a particular district implicates the personal-jurisdiction precedent of circuit into which a party seeks to transfer the case. See 28 U.S.C. § 1404(a); see also, e.g., Shenzhen Aji Fashion Tech. Co. v. WhaleCo Inc., No. 23-cv- 14043, 2024 WL 2845974, at *3 (N.D. Ill. June 5, 2024) (citing both First and Seventh Circuit law to determine whether the suit might have been brought in the District of Massachusetts). “Absent a party’s consent to personal jurisdiction, a court must secure either general or specific jurisdiction.” Vanegas v. Signet Builders, Inc., 113 F.4th 718, 722 (7th Cir. 2024) (internal citation omitted); see also Ratha v. Phatthana Seafood Co., 35 F.4th 1159, 1170-71 (9th Cir. 2022). Here, the Parties do not dispute that the Northern District of Illinois does not have general jurisdiction over LiveRamp. Reply at 3 n.2. As to specific jurisdiction, in the Seventh Circuit, there are “three requirements for personal jurisdiction in th[e] [tort] context: (1) intentional conduct (or ‘intentional and allegedly tortious conduct); (2) expressly aimed at the forum state; (3) with the defendant’s knowledge that the effects would be felt—that is, the plaintiff would be injured—in the forum state.” Tamburo v. Dworkin, 601 F.3d 693, 703 (7th Cir. 2010) (“[e]xtracting these requirements from Calder [v. Jones, 465 U.S. 783 (1984)]…”); accord Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1156 (9th Cir. 2006) (deriving the same three factors, phrased somewhat differently, from Calder). //// //// //// //// A. LiveRamp Cannot Satisfy Section 1404(a) by Consenting to Jurisdiction LiveRamp first argues that personal jurisdiction is proper because it “is willing to consent to jurisdiction in the Northern District of Illinois to permit” this action and the Circana Action “to be consolidated.” Mot. at 2, 5. The Supreme Court squarely rejects this argument. “[T]he power of a District Court under [Section] 1404(a) to transfer an action to another district [does] not [depend] upon the wish or waiver of the defendant[;]” a defendant cannot waive jurisdiction or venue for the purpose of a Section 1404(a) transfer. Hoffman, 363 U.S. at 343-44. Accordingly, LiveRamp’s willingness to consent is insufficient. B. The Northern District of Illinois Did Not have Specific Personal Jurisdiction Over LiveRamp Turning to the three requirements extracted by the Seventh Circuit from Calder, LiveRamp fails to demonstrate that the Northern District of Illinois had personal jurisdiction over LiveRamp at the time the suit was brought. As for the first requirement, the Parties do not dispute that that LiveRamp’s alleged trademark infringement is “intentional and allegedly tortious.” See, generally, Opp. at 6-8; Reply at 3-5. Accordingly, this Court focuses on the second and third requirements. 1. LiveRamp’s Conduct Was Not Expressly Aimed at Illinois LiveRamp points to two contacts that it contends show its conduct was expressly aimed at Illinois: (1) that it “offers its services across the United States, including Illinois, and [(2)] [that it] also has a contractual relationship with Circana – an Illinois resident.” Mot. at 5. Nielsen challenges that “neither offering services nationwide (presumably via the Internet), nor merely entering a contract with a company that happens to be headquartered in Illinois, is sufficient to confer specific jurisdiction,” citing both Seventh and Ninth Circuit authority. Opp. at 7-8. The Court agrees with Nielsen that neither contact, standing alone, is sufficient to show that LiveRamp expressly aimed its conduct at Illinois. Matlin v. Spin Master Corp., 921 F.3d 701, 707 (7th Cir. 2019) (website: “If the defendant merely operates a highly interactive website, that is accessible from, but does not target, the forum state, then the defendant may not be haled into court in that Cir. 2006) (website: “Caddy’s actions were not expressly aimed at California [where the] only acts identified by Pebble Beach as being directed at California are the website and the use of the name ‘Pebble Beach’ in the domain name.”); Citadel Grp. Ltd. v. Washington Reg’l Med. Ctr., 536 F.3d 757, 761 (7th Cir. 2008) (contract: “[A] contract between a state resident and an out-of- state defendant alone does not automatically establish sufficient minimum contacts.”); Picot v. Weston, 780 F.3d 1206, 1212 (9th Cir. 2015) (contract: “[A] contract alone does not automatically establish minimum contacts in the plaintiff’s home forum.”). In reply, LiveRamp neither distinguishes these cases nor argues that either contact, standing alone, is sufficient. See Reply at 3-4. Rather, LiveRamp argues that it is “the combination of those two [contacts], i.e., the availability of a website in the forum state and the existence of a contract with a party in the forum state” that is sufficient to confer personal jurisdiction. Reply at 4-5 (internal quotation marks omitted). LiveRamp relies principally on a recent case from the Northern District of Illinois: Shenzhen Aji Fashion Tech. Co. v. WhaleCo Inc., No. 23-cv-14043, 2024 WL 2845974, at *1 (N.D. Ill. June 5, 2024). However, as explained below, Shenzhen is different in a number of ways from this case. The Court is not persuaded that, under the circumstances of this case, the combination of LiveRamp’s website and its contract with Circana is sufficient to satisfy personal jurisdiction. In Shenzhen, defendant WhaleCo, Inc. (“WhaleCo”), “own[ed] and operate[d] the online marketplace[] Temu.com,” with four other defendants being “individual online sellers operating on Temu.com … (the ‘Store Defendants’).” Shenzhen, 2024 WL 2845974, at *1. WhaleCo was based in Boston, Massachusetts, but the plaintiff originally brought suit in Illinois because the Store Defendants, although based in China, had each shipped infringing products into Illinois. Id. at *2. WhaleCo moved to transfer the case from Illinois to the District of Massachusetts. Id. at *1. In determining that personal jurisdiction over the Store Defendants was satisfied in Massachusetts, the court explained that

Store Defendants did not just create websites on their own initiative that can be accessed in any location, they specifically entered into an agreement with WhaleCo, a Massachusetts-based company, to sell Store Defendants did not contract with WhaleCo for a one time sale of goods or services, but instead, according to Shenzhen’s own allegations, are engaged in an ongoing relationship with WhaleCo in which WhaleCo controls the media and images that appears on the Store Defendants’ product listings, sets the prices their products are sold at, and decides where the products are sold. WhaleCo and the Store Defendants are also, according to Shenzhen, purportedly “acting in concert” to use Shenzhen’s trademark and copyrighted images to offer and sell clothing products that infringe upon Shenzhen’s intellectual property. Thus, there is “something more” in this case than the mere availability of a website or the mere existence of a contractual relationship; there is an ongoing relationship with various specific terms and conditions, and an ongoing alleged scheme of copyright infringement. Id. at *5 (citations omitted; emphasis supplied). But there are a few key differences between this case and Shenzhen. Most significantly, the relationship between the defendants in Shenzhen was much closer than between LiveRamp and Circana. WhaleCo controlled key aspects of Store Defendants’ websites; specifically, it determined media and images, set prices and decided where products were sold. Id. In essence, WhaleCo—the Massachusetts-based company—controlled the Store Defendant’s alleged copyright infringement. Here, LiveRamp points to Nielsen’s allegation that “Circana and LiveRamp collaborate to make Circana’s deterministic data available within LiveRamp’s data platform,” (Reply at 5), but this single, general allegation of collaboration is a far cry from the near-total control exerted by WhaleCo in Shenzhen. The Court is not persuaded that the “collaborat[ion]” alleged here is sufficient to say that LiveRamp “expressly aimed” its conduct at Illinois. Furthermore, in Shenzhen, the defendant operating the online marketplace (WhaleCo) was based in the target forum, and the question was whether the Store Defendants that “supply WhaleCo with products for sale” could be sued in the same forum. See id. at *2. The situation here is reversed: LiveRamp is the party that ultimately makes the product (data) available to customers, and one of its suppliers (Circana) is headquartered in the target forum. See Compl., ¶ 12; Circana Am. Compl., ¶ 42. If LiveRamp’s argument were correct, then, so long as the other jurisdictional requirements were satisfied, any online retailer could be made to answer in the courts of any state in which it had a supplier (and LiveRamp itself could be sued in any state in which any of its data providers resided). This Court rejects the argument that merely having a nationwide website means that conduct is “expressly aimed” at any states in which the defendant’s supplier(s) reside. Nor has LiveRamp provided any evidence that it has any customers in Illinois to whom it makes Circana’s data available. Accordingly, this case is quite different from Shenzhen. Rather, this is a case where LiveRamp operates a nationwide website and has a contract with its third-party data supplier, Circana, who it just-so-happens is situated in Illinois. For specific personal jurisdiction to obtain, “[t]he defendant’s contacts must not be merely random, fortuitous, or attenuated.” Citadel Grp., 536 F.3d at 761; Picot, 780 F.3d 1206 at 1212 (“Merely random, fortuitous, or attenuated contacts are not sufficient.” (internal quotation marks and citation omitted). In this context, the Court does not find that LiveRamp’s conduct was “expressly aimed” at Illinois. 2. LiveRamp Has Not Shown It Knew That the Effects of its Conduct Were Likely to be Felt—i.e., that Nielsen Would Be Injured—in Illinois The lack of “expressly aimed” conduct alone is sufficient to find a lack of personal jurisdiction and so deny the Motion. See Tamburo, 601 F.3d 693 at 703; Pebble Beach Co., 453 F.3d at 1156. Nonetheless, for the sake of completeness, this Court briefly addresses the third requirement: that the “defendant [have] knowledge that the effects would be felt—that is, the plaintiff would be injured—in the forum state.” Tamburo, 601 F.3d 693 at 703; accord Pebble Beach Co., 453 F.3d at 1156. LiveRamp does not address this element in its briefs, although Nielsen argued in its opposition that there was no evidence that “the contract was made with LiveRamp’s knowledge that Nielsen[] would be harmed in Illinois… .” Opp. at 7. However, both Parties addressed the issue during oral argument where LiveRamp argued that because Nielsen was a Chicago-based company, LiveRamp knew that the effects of its deal with Circana would be felt by the plaintiff (Nielsen) in Illinois. But while this may be apparent to LiveRamp now, Section 1404(a) is backward looking. See 28 U.S.C. § 1404(a) (permitting transfer to any district where the action “might have been brought” originally). While it is possible that, as LiveRamp argues, it made its ] Nielsen would feel the effects of the (alleged) tort, neither the contract between LiveRamp and 2 Circana nor any affidavit providing evidence of the circumstances under which it was made 1s 3 before the Court. “The moving party bears the burden of showing that jurisdiction and proper 4 venue would exist in the district to which a transfer is requested.” Wireless Consumers All., 2003 5 WL 22387598, at *1. The Court is not persuaded on these facts that LiveRamp has shown that it 6 knew that the effects of its conduct were likely to be felt by Nielsen in Illinois. 7 Accordingly, for this independent reason, the Northern District of Illinois lacked specific 8 personal jurisdiction over LiveRamp at the time Nielsen brought its lawsuit. Thus, this is an 9 independent reason to deny the motion to transfer. 10 IV. CONCLUSION 11 For the forgoing reasons, because LiveRamp’s allegedly tortious conduct was not 12 expressly aimed at Illinois and was not conducted with the knowledge that Nielsen was likely to 13 be injured in Illinois, this Court finds that the Northern District of Illinois lacked specific personal 14 jurisdiction over LiveRamp at the time Nielsen brought its lawsuit. Accordingly, because personal jurisdiction is a threshold issue under 28 U.S.C. § 1404(a), without reaching the case-specific a 16 || analysis of convenience and fairness, the Court DENIES LiveRamp’s motion to transfer this case 17 || to the Northern District of Illinois. 18 20 Dated: June 6, 2025 21 22 Seat veel SUSAN VAN KEULEN 23 United States Magistrate Judge 24 25 26 27 28