Supreme Court Given Opportunity to Clarify Specific Personal Jurisdiction

eric-millerGuest Commentary

By Eric D. Miller, Partner, Perkins Coie LLP*

A pending petition for a writ of certiorari presents the United States Supreme Court with an opportunity to clarify whether a state may exercise personal jurisdiction over a nonresident defendant based solely on the defendant’s sale of components to third parties who incorporate those parts into finished products that are then sold in the forum State.

That question has divided the lower courts since Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987). In that case, Asahi, a Japanese manufacturer, had delivered tire-valve assemblies to a Taiwanese tire manufacturer that sold tires throughout the world, including in California. After a California resident was injured in an accident caused by a defective valve, he sued Asahi in California state court. The Supreme Court held that Asahi was not subject to personal jurisdiction in California, but no rationale commanded a majority of the Court. Justice O’Connor, writing for four justices, concluded that the connection between the defendant and the forum state necessary to establish specific personal jurisdiction “must come about by an action of the defendant purposefully directed toward the forum state.” In her view, placing a product “into the stream of commerce, without more,” is not such an act. Justice Brennan, on the other hand, wrote for four justices who believed that placement of goods into the stream of commerce, with the knowledge that they will ultimately be sold in a state, can be sufficient for jurisdiction in that state. Continue reading

District of Columbia’s Court of Appeals Adopts “Daubert” as Test for Expert Testimony

Tager_09181Featured Expert Column: Judicial Gatekeeping of Expert Evidence

By Evan M. Tager, Mayer Brown LLP, with Carl J. Summers, Mayer Brown LLP

Nearly a century ago, in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the federal appeals court in the District of Columbia—the US Court of Appeals for the DC Circuit—announced the general acceptance test for evaluating the admissibility of expert testimony. Over the next several decades, the general acceptance test itself became generally accepted. But since the US Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and the adoption of that standard in Federal Rule of Evidence 702, many states have replaced Frye with Daubert. In Motorola, Inc. v. Murray, __ A.3d __, 2016 WL 6134870 (D.C. Oct. 20, 2016), the en banc District of Columbia Court of Appeals (the District of Columbia’s appellate court, distinct from the federal DC Circuit) expressly dispensed with the Frye standard and adopted Rule 702. Continue reading

Friday Finger on the Pulse: From Our Blogroll and Beyond

  • Class-action defendants can learn much from plaintiff-leaning law-review article on “statistical adjudication” after Tysons Food v. Bouaphakeo (Class Action Countermeasures)
  • By the Justice Department’s own measure of success, its Foreign Corrupt Practices Act “pilot program” is failing (FCPA Professor)
  • The case for why FTC, not FCC, should regulate internet privacy (Truth on the Market)
  • The Consumer Financial Protection Bureau joins the ranks of government censors with proposed gag rule on investigation targets (Overlawyered)
  • Online database IMDb.com files First Amendment challenge against California law banning inclusion of actors’ ages, citing rights of customers to receive information (Hollywood Reporter)
  • Suit claiming air emissions that fall to the ground constitute hazardous waste under Superfund proves too ambitious even for the Ninth Circuit (Marten Law Newsletter)
  • A new regulatory paradigm for SEC in 2017? (California Corporate & Securities Law via ProfessorBainbridge.com)
  • Competitors and whistleblowers will be the likely beneficiaries of FDA’s new online regulatory misconduct reporting tool (FDA Law Blog)

The New Era of “Daimler” Yields Confusion in the Lower Courts

bnsfPrior to the US Supreme Court’s 2014 decision in Daimler AG v. Bauman, general jurisdiction existed over a business defendant in any state where it was incorporated, had its principal place of business, or its contacts were so “continuous and systematic” as to render them essentially at home in the forum state.  Under this expansive interpretation, corporations could be subject to lawsuits in unpredictable and often remote jurisdictions.

Daimler significantly narrowed the reach of general jurisdiction by holding that because Daimler and MBUSA were neither incorporated nor had their principal place of business in California, Daimler’s contacts with California were not enough to render it at home in the state. Continue reading

Friday Finger on the Pulse: From Our Blogroll and Beyond

  • Be the boss, go to jail?: Responsible corporate office doctrine threatens C-suite executives with prosecution for unknown acts of employees (Corporate Counsel)
  • Due-process arguments and state-court class actions (Class Action Countermeasures)
  • The Supreme Court and laches: Reading into the SCA Hygiene oral argument (Patently-O)
  • New York Court of Appeals finds unconventional litigation-financing agreement constitutes champerty (D&O Diary)
  • The meaning of “foreign official” in the Foreign Corrupt Practices Act remains elusive (FCPA Professor)
  • Federal trial court applies general-jurisdiction principles from Bauman in class-action lawsuit (Drug & Device Law)
  • Has the famed Gateway to the West become a gateway to a pot of gold? : Huge talc litigation verdict furthers St. Louis’s pro-plaintiff reputation (Guideposts Punitive Damages Blog)
  • In State of Washington, communications between in-house counsel and former employees are no longer protected per 5-4 state supreme court ruling (Corporate Counsel)
  • Northern District of California gives Spokeo decision a Lyft in rejecting plaintiffs’ standing to sue the ride-sharing company (Classified)

Colorado Supreme Court, Following US Supreme Court’s “Bauman,” Rejects Broad General-Jurisdiction Theory

ronkGuest Commentary

Marissa S. Ronk, an Associate with Wheeler Trigg O’Donnell LLP*

The Colorado Supreme Court recently granted Ford Motor Co. “extraordinary relief” in overturning a trial court’s finding of general jurisdiction over Ford in Colorado. Magill v. Ford.

In 2013, Plaintiff John Scott Magill was driving a Ford vehicle when he was hit by another Colorado resident. In 2015, Mr. Magill and his wife filed a lawsuit in Colorado against the Colorado driver and Ford to recover for their injuries. Ford moved to dismiss the case for lack of personal jurisdiction. Ford is incorporated in Delaware with its principal place of business in Dearborn, Michigan. The company argued that it is not subject to general jurisdiction in Colorado because it is not “at home” there, as required under the U.S. Supreme Court’s 2014 ruling in Daimler AG v. Bauman. Ford also argued it was not subject to specific jurisdiction in Colorado because the car accident did not arise out of its contacts with Colorado.   Continue reading

Friday Finger on the Pulse: From Our Blogroll and Beyond

  • FCC privacy rule frowns upon arbitration, announces forthcoming rule to ban its use in Internet service provider-customer privacy disputes (Truth on the Market)
  • Five takeaways from influential Duke Law Center for Judicial Studies conference on settlement of class actions (Class Action Countermeasures)
  • DOJ’s settlement of two False Claims Act suits indicate impacts of Yates Memo and its call for individual accountability on federal civil enforcement (D&O Diary)
  • Why are certain counties in Pennsylvania (such as Lackawanna) strong magnets for tort litigation? (Scranton Times-Tribune; HT to Overlawyered, article quotes editor Walter Olson)
  • Empty claim on empty packaging space: Federal judge says “it defies logic” that slack fill in ibuprofen bottle (that lists pill count on label) would deceive plaintiff into a purchase (Drug and Device Law)
  • Speaking of slack fill, a plaintiff named Wurtzburger is suing KFC for $20 million because her $20 bucket of chicken wasn’t overflowing (Abnormal Use)
  • Ninth Circuit denied rehearing in case discussed in WLF Legal Pulse guest commentary that equated falling air emissions with deposits of hazardous waste under CERCLA (Corporate Environmental Lawyer)
  • Ruling on a case noted in Sept. 30 WLF Legal Backgrounder, Seventh Circuit follows Supreme Court’s restrictive view of implied-certification theory under False Claims Act (Fried Frank FraudMail)
  • Two overlooked, but critical, aspects of DC Circuit’s decision finding the Consumer Financial Protection Bureau’s structure unconstitutional (Asset Securitization Report)
  • Expect more activist group petitions seeking threatened or endangered status for species based on future risk of climate change after recent adventurous Ninth Circuit ruling (Law and the Environment)