Personal Jurisdiction Background Considerations Personal Jurisdiction Can a

Personal Jurisdiction (Background) Considerations • Personal Jurisdiction. Can a state subject a person to its procedural rules? • Venue. Which court should hear the case? • Choice of Law. When they differ, which state’s substantive laws apply? • Enforcement. Can a state’s judgment be enforced outside the state? 1

Personal Jurisdiction (Background) Traditional minimum contacts 1. Minimum Contacts A. Purposeful Availment • Purposeful contacts with the forum state • Exercising the privilege of conducting activities within the forum state B. Relatedness • Relationship between forum state contacts and the cause of action • i. e. , Whether the cause of action “arises out of” or “relates to” the defendant’s contacts with the forum state. 2. Reasonableness • Balancing the interests of the plaintiff, the defendant, the forum state, and the interstate judicial system. 2

Personal Jurisdiction (Background) The Calder v. Jones ‘effects’ test • An ‘intentional torts’ formulation of the minimum contacts standard. 1. Intentional actions … 2. Expressly aimed at the forum state … 3. Taken with knowledge that the brunt of the injury would be felt in the forum state … 4. Such that they must reasonably anticipate being haled into court there. 3

Personal Jurisdiction (Background) ALS Scan v. Digital Service Consultants (4 th Cir. 2002) • ‘A State may, consistent with due process, exercise judicial power over a person outside of the State when that person … 1. Directs electronic activity into the State, 2. with the manifested intent of engaging in business or other interactions within the State, and 3. that activity creates, in a person within the State, a potential cause of action cognizable in the State’s courts. ’ 4

Personal Jurisdiction (Background) Zippo Manufacturing Co. v. Zippo Dot Com, Inc. (W. D. Pa. 1997) • Internet-specific test focused on the interactivity of the website. • ‘The exercise of personal jurisdiction [is] proper where the commercial web site’s interactivity reflected specifically intended interaction with residents of the forum state’ • Factors • Level of interactivity • The commercial nature of the exchanged information Jurisdiction Unlikely The Middle Ground Jurisdiction Likely Defendant has simply posted information on a web sit and thus made it accessible to individuals in other states Interactive web sites where a user can exchange information with the host computer Defendant clearly does business over the internet. Enters into contracts that involve the knowing and repeated transmission of computer files over the internet. 5

Personal Jurisdiction (Application) Illinois v. Hemi Group (7 th Cir. 2010) • Facts • Selling cigarettes to Illinois residents, in violation of state and federal law. • Hemi’s Website: Customer’s able to … • Purchase cigarettes • Calculate shipping costs • Create accounts Commercial Interactive • Standard? • Is the court applying Zippo? • If not, what standard is being applied? • Purposeful Availment. What is the relevance of Hemi’s express statement that it will ship to any state but New York? • Relevant Contacts with the Forum State. What about Hemi’s argument that “the purchases were unilateral actions by the customers”? 6

Personal Jurisdiction (Application) Wilkerson v. RSL Funding (Texas Ct. App. 2011) • Facts • Wilkerson’s daughter won the lottery win and exchanged those periodic payments for a lump sum payment through RSL. • Wilkerson posted negative reviews and comments on Yahoo and Yelp, mentioning RSL and at least one employee by name. • When accessed by third-parties, certain local information was included with the reviews (maps, contact information, etc. ). • However, Wilkerson played no role in the creation of this information • Wilkerson does not know how to target geographic locations or attached materials. • RSL files defamation claim in Texas, claiming that Wilkerson targeted Texas with his allegedly defamatory comments (i. e. , purposeful availment). 7

Personal Jurisdiction (Application) Wilkerson v. RSL Funding (Texas Ct. App. 2011) • Legal Standards re: Specific Jurisdiction • A nonresident defendant establishes minimum contacts with Texas by purposefully availing himself of the privileges of conducting activities in the state, thus invoking benefits and protections of its laws. [Hanson v. Denckla] We consider only the defendant’s own contacts with the forum state, not the unilateral activities of third parties. [Burger King] The contacts relied upon must be purposeful, and not random, isolated, or fortuitous. [Burger King; Keeton v. Hustler Magazine]. When undertaking a minimum-contacts analysis, we consider the quality and nature of the defendant’s contacts, rather than their number. The defendant’s activities, whether they consist of acts inside or outside of Texas, must justify a conclusion that the defendant could reasonably anticipate being called into a Texas court. [World–Wide Volkswagen]. Although it is not determinative, foreseeability is an important consideration in deciding whether the nonresident has purposefully established minimum contacts with the forum state. [Burger King] 8

Personal Jurisdiction (Application) Wilkerson v. RSL Funding (Texas Ct. App. 2011) • Arguments • Wilkerson. No evidence that he directed his comments about RSL toward Texas. • RSL. Four points … • Wilkerson’s statements were published ‘on internet interactive websites which were specifically aimed at a Texas limited liability company, RSL, located in the Galleria area of Houston, Texas, and its employee, a Texas resident. ’ • Wilkerson posted his comments to www. local. yahoo. com and www. yelp. com, sites alleged by RSL to ‘use geographic location as the key to their respective search options. ’ • Wilkerson’s ‘stated motivation. . . was that he was trying to drum up a class action lawsuit. ’ • Wilkerson’s statements were ‘part of a calculated scheme to destroy RSL’s business. ’ • Legal Arguments. • Wilkerson’s comments “constitute a substantial presence in the State of Texas. ” • Jurisdiction should be exercised over Wilkerson “based on the effects of his California conduct in Texas. ” 9

Personal Jurisdiction (Application) Wilkerson v. RSL Funding (Texas Ct. App. 2011) • Analysis. Rejecting the Zippo test • The Zippo sliding scale is not applicable because it is not a good fit with the actions of individuals. • ‘To the extent that the interactive features of Yahoo! and Yelp are the creations of the owners and operators of those websites, the interactive nature of a largescale ubiquitous internet presence cannot be fully imputed to an individual user such as Wilkerson. . . ’ • ‘Most Texas cases which apply the sliding-scale jurisdictional analysis to claims based upon internet usage arise from a nonresident defendant’s ownership and operation of its own website. ’ • ‘The analysis of a website’s interactivity is not as useful when determining whether due process permits jurisdiction to be exercised over a third-party individual user of the website. ’ • ‘The relevant contacts are those of the defendant himself, and not the unilateral acts of third parties. ’ 10

Personal Jurisdiction (Application) Wilkerson v. RSL Funding (Texas Ct. App. 2011) • Analysis. The traditional ‘purposeful availment’ standard • Question. Whether ‘the individual user intentionally used a website’s features to target a particular location under circumstances constituting purposeful availment. ’ • Application. • Website Characteristics. • Website Content. • Substance of Internet Communications. • Effect of Internet Communications. 11

Personal Jurisdiction (Application) Wilkerson v. RSL Funding (Texas Ct. App. 2011) • Analysis. The traditional ‘purposeful availment’ standard • Question. Whether ‘the individual user intentionally used a website’s features to target a particular location under circumstances constituting purposeful availment. ’ • Application. • Website Characteristics. • Bad lawyering and the evidence problem (pp. 1 -2, p. 5) • Even if this evidence is accepted. . . Personal jurisdiction cannot be based on the unilateral acts of another. • Not the unilateral acts of website operators. • Not the unilateral acts of third-party website users. • As such, RSL has not sufficiently countered Wilkerson’s denial that he targeted Texas. • Website Content. • Substance of Internet Communications. • Effect of Internet Communications. 12

Personal Jurisdiction (Application) Wilkerson v. RSL Funding (Texas Ct. App. 2011) • Analysis. The traditional ‘purposeful availment’ standard • Question. Whether ‘the individual user intentionally used a website’s features to target a particular location under circumstances constituting purposeful availment. ’ • Application. • Website Characteristics. • Website Content. • RSL argues that Wilkerson ‘provided’ location-specific website content. • BUT that’s not what the evidence shows … • Internet content is often customized to a third-party website user’s location, but that doesn’t evidence sufficient purposeful availment. • ‘The present-day reality of the ever-evolving internet is that the content seen by any particular user is often customized by the website based on the geographic location of the person viewing the website, or the geographic location of the same person’s computer servers, or other characteristics associated with the person visiting the webpage. ’ (p. 7) • Substance of Internet Communications. • Effect of Internet Communications. 13

Personal Jurisdiction (Application) Wilkerson v. RSL Funding (Texas Ct. App. 2011) • Analysis. The traditional ‘purposeful availment’ standard • Question. Whether ‘the individual user intentionally used a website’s features to target a particular location under circumstances constituting purposeful availment. ’ • Application. • Website Characteristics. • Website Content. • Substance of Internet Communications. • Question. Whether Wilkerson’s internet commentary alone was sufficient to justify a Texas court exercising specific jurisdiction over him. • Rejected. • Comments Generally. • ‘RSL has presented no evidence that Wilkerson’s comments were purposefully directed at Texas. ’ • Solicitation of Texas Residents for Lawsuit. • Wilkerson’s comments did not indicate in any way that Texas residents were being recruited as opposed to any other disgruntled client of RSL. • Effect of Internet Communications. 14

Personal Jurisdiction (Application) Wilkerson v. RSL Funding (Texas Ct. App. 2011) • Analysis. The traditional ‘purposeful availment’ standard • Question. Whether ‘the individual user intentionally used a website’s features to target a particular location under circumstances constituting purposeful availment. ’ • Application. • Website Characteristics. • Website Content. • Substance of Internet Communications. • Effect of Internet Communications. • RSL’s Calder ‘effects’ argument—i. e. , that ‘jurisdiction is proper based on the Texas effects of Wilkerson’s comments. ’ • Rejected. • Jurisdiction cannot be based on effects alone. • Effects must be supplemented with evidence of the defendant’s conduct and connection with the forum state. • Note. Cannot be based merely on the plaintiff’s residence. • Conclusion. The alleged effects of Wilkerson’s comments in Texas, even if accepted, are not enough to establish personal jurisdiction. 15

Personal Jurisdiction (Application) Burdick v. Superior Court (California Ct. App. 2015) • Facts • Burdick’s connections to Illinois (p. 10) • Burdick’s lack of connections to California (p. 10) • Posting of allegedly defamatory comments while located in Illinois (p. 10) • Analysis • Applying traditional principles of personal jurisdiction … (next slide) 16

Personal Jurisdiction (Background) REVIEW: Traditional minimum contacts 1. Minimum Contacts A. Purposeful Availment • Purposeful contacts with the forum state • Exercising the privilege of conducting activities within the forum state B. Relatedness • Relationship between forum state contacts and the cause of action • i. e. , Whether the cause of action “arises out of” or “relates to” the defendant’s contacts with the forum state. 2. Reasonableness • Balancing the interests of the plaintiff, the defendant, the forum state, and the interstate judicial system. 17

Personal Jurisdiction (Application) Burdick v. Superior Court (California Ct. App. 2015) • Facts • Burdick’s connections to Illinois (p. 10) • Burdick’s lack of connections to California (p. 10) • Posting of allegedly defamatory comments while located in Illinois (p. 10) • Analysis • Applying traditional principles of personal jurisdiction … (next slide) • Question. May specific jurisdiction be exercised over Burdick, an Illinois resident, based on his conduct related to the lawsuit, that is, his posting of the allegedly defamatory statements on his personal Facebook page? • Building a legal analysis … • Calder ‘effects’ test • Pavlovich and ‘express aiming’ • The effects test and internet-based defamation • Walden v. Fiore (S. Ct. 2014) 18

Personal Jurisdiction (Application) Burdick v. Superior Court (California Ct. App. 2015) • Building a legal analysis … • Calder ‘effects’ test. An ‘intentional torts’ formulation of the minimum contacts standard. 1. Intentional actions … 2. Expressly aimed at the forum state … 3. Taken with knowledge that the brunt of the injury would be felt in the forum state … 4. Such that they must reasonably anticipate being haled into court there. 19

Personal Jurisdiction (Application) Burdick v. Superior Court (California Ct. App. 2015) • Building a legal analysis … • Pavlovich and ‘express aiming’ • To narrow the potentially broad scope of Calder, courts have interpreted the effects test as having an express aiming requirement and requiring the plaintiff to show 1. Defendant committed an intentional tort; 2. Plaintiff felt the brunt of the harm caused by that tort in the forum state such that the forum state was the focal point of the plaintiff’s injury; and 3. Defendant expressly aimed the tortious conduct at the forum state such that the forum state was the focal point of the tortious activity. • Calder requires evidence of express aiming or intentional targeting’ in addition to the defendant’s knowledge that his intention conduct would cause harm in the forum. • Plaintiff must show ‘the defendant knew that the plaintiff would suffer the brunt of the harm caused by the tortious conduct in the forum, and point to specific activity indicating that the defendant expressly aimed its tortious conduct at the forum. ’ 20

Personal Jurisdiction (Application) Burdick v. Superior Court (California Ct. App. 2015) • Building a legal analysis … • The effects test and internet-based defamation. • Courts in other jurisdictions have held that the ‘mere posting of information or advertisements on an Internet website does not confer nationwide personal jurisdiction. ’ • Instead, the defendant ‘must, through the Internet postings, manifest an intent to target and focus on forum state readers. ’ 21

Personal Jurisdiction (Application) Burdick v. Superior Court (California Ct. App. 2015) • Building a legal analysis … • Walden v. Fiore (S. Ct. 2014) • Interpreting Calder … “The defendants in Calder ‘expressly aimed’ their intentional conduct at California because they knew the National Enquirer had its largest circulation in California and the article would “have a potentially devastating impact there. ” 22

Personal Jurisdiction (Application) Burdick v. Superior Court (California Ct. App. 2015) • Application • “Walden teaches that the correct jurisdictional analysis focuses on (1) the defendant’s contacts with the forum, not with the plaintiff, and (2) whether those contacts create ‘the relationship among the defendant, the forum, and the litigation’ necessary to satisfy due process. And, ‘[t]he proper question is not where the plaintiff experienced a particular injury or effect but whether the defendant’s conduct connects him to the forum in a meaningful way. ’” • See pp. 14 -15. 23

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