Agenda for 19th Class

1. Agenda for 19th Class • Name plates out • No class Friday • Personal Jurisdiction: • World-Wide Volkswagen (review) • General Jurisdiction • Stream of Commerce • McIntyre

2. Next Class • Yeazell 91-103 (Shaffer) 139-47 (Burnham) • Questions to think about /Writing Assignment • Briefly summarize Shaffer • P. 100ff Q3, 4 • Questions on the next slide • Briefly summarize Burham • Do you think jurisdiction based on presence makes sense? Should it be constitutional? • How far would you extend jurisdiction based on presence? In answering that question, consider: • Pp. 145ff Q 3 • Grace v. MacArthur, summarized on slide 5 of Class 17 handout • Given that Burnham is now established law, how do you think courts should resolve the cases described in • Pp. 133ff Q 3 Grace v. MacArthur, summarized on slide 5 of Class 17 handout

3. Statutes & the Constitution • Hypo • Car accident in West Dakota • Defendant is citizen & resident of California • Defendant owns real property in West Dakota • Plaintiff is citizen of West Dakota • Is jurisdiction proper if West Dakota has the following statute: • “West Dakota trial courts may exercise jurisdiction on any basis not inconsistent with the Constitution of the United States.” (West Dakota Statute I) • Is jurisdiction proper if West Dakota has the following statute: • “West Dakota trial courts may exercise jurisdiction over an individual only if that individual is a resident or citizen of West Dakota.” (West Dakota Statue II) • Is jurisdiction proper if West Dakota has the following statute: • “West Dakota trial courts may exercise jurisdiction over an individual only if that individual is a resident or citizen of West Dakota or if the individual own real property in West Dakota.” (West Dakota Statue III) • Remember to consider both whether there is statutory authorization for jurisdiction and whether jurisdiction is constitutional

4. World-Wide Volkswagen • Forseeability is not enough; Purposeful availment requires more • Jurisdiction cannot be established by plaintiff’s actions (driving car to Oklahoma) • Minimum contacts focus on defendant’s actions (not plaintiffs) • Jurisdiction if “defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there” (pp. 100) • When should defendant “reasonably anticipate” being sued in forum? • That depends on Supreme Court precedent • If precedents said that defendants can be sued wherever their products cause injury (as EU law states), then it would be reasonable for NY car distributor to anticipate being sued in Oklahoma • If precedents say that distributors can only be sued where they sold their product, then it would NOT be reasonable for NY distributor to anticipate being sued in Oklahoma • If precedents are ambiguous or nonexistent (as they largely were before WWVW), then what can defendant reasonably anticipate?

5. General Jurisdiction I • Perkins v Benguet Consolidated Mining (1952) • General jurisdiction in Ohio over Philippine Company • During WWII, when Philippines were occupied by Japan • President and principal stockholder returned home to Ohio, where maintained office from which ran business • 2 bank accounts in Ohio • Directors meetings in Ohio • Helicopteros (1983) • No general jurisdiction in Texas relating to helicopter crash in Peru • Defendant operated helicopter transport business • Defendant’s contacts with Texas • Negotiated at least one contract in Texas • Purchased helicopters from Texas company • Trained pilots in Texas • Defendant employees visited helicopter plants in Texas • Received $5 million in checks drawn upon Texas bank

6. General Jurisdiction II • Goodyear v Brown (2011) • No general jurisdiction in product liability suit in North Carolina against Turkish, French and Luxembourg subsidiaries of Goodyear USA arising out of bus accident in France • Defendants’ contacts with North Carolina • Some tires manufactured by them reached NC by stream of commerce

7. Stream of Commerce I Mfg in A sells to consumer in B If mfg sold to B through showroom owned by mfg in B, then very clear that jurisdiction in B If mfg ships product to consumer in B, then probable that jurisdiction in B (McGee) Mfg in A sells to retailer in B. Consumer buys from retailer in B Clear that consumer can sue retailer in B Probable that consumer can sue mfg in B Mfg in A sells to distributor in B. Distributor in B sells to retailer in C. Consumer in C buys from retailer Clear that consumer can sue retailer in C Pretty clear that consumer can sue distributor in C Probable that consumer can sue manufacturer or distributor in B But Ginsburg in McIntyreseems to assume “no” Clear that consumer can sue mfg in A Stream of commerce issue: When can consumer sue mfg in C? 7

8. Stream of Commerce II White dicta in World-Wide Volkswagen (stream of commerce) Jurisdiction over mfg in C, if significant numbers of mfg’s products go to C and either mfg tried “directly or indirectly” to serve the market in C or mfg expected purchases to be made in C Relatively easy to satisfy O’Connor plurality opinion in Asahi (stream of commerce plus) Jurisdiction over mfg in C if White’s criteria satisfied AND “additional conduct of the defendant [indicates] an intent or purpose to serve the market” in C, e.g. Designing the product for C Advertising in C Establishing channels for providing regular advice to consumers in C Marketing product through distributor who has agreed to serve as the sales agent in the forum state Probably means that mfg has direct contractual relationship with retailer based in state C 8

9. Stream of Commerce III McIntyre. Kennedy plurality (joined by Roberts, Scalia & Thomas) Jurisdiction over mfg in C if White’s criteria satisfied AND defendant “targeted the forum” Not sufficient to show intent to serve US market generally, must show intent New Jersey market specifically McIntyre. Breyer concurrence (joined by Alito) Single isolated sale is not enough. Consistent with White dicta in WWVW Also notes that no design, advice, marketing, or advertising for forum, so no jurisdiction according to O’Connor’s “stream of commerce plus” approach McIntyre. Ginsburg dissent (joined by Sotomayor & Kagan) Jurisdiction over mfg in C if White’s criteria satisfied AND mfg set up distribution network to serve whole US and product actually sold in C Since no majority opinion, no controlling precedent Can only try to predict how future cases will come out Try to satisfy both Kennedy & Breyer opinions (harder) OR Ginsburg & Breyer opinions (easier) 9

10. McIntyre Qs I • Yeazell pp. 131ff Qs 1- 4 • How would McIntyre have been decided under White’s view of the “stream of commerce” theory as expressed in his opinion in World-Wide Volkswagen • How would McIntyre have been decided under O’Connor’s “stream of commerce” plus theory • How is Kennedy’s view of jurisdiction based on the “stream of commerce” different from White’s and O’Connor’s? In what cases would they reach the same result? In what cases different results? • Suppose the California courts and juries are relatively generous to product liability plaintiffs, but Nevada courts and juries are relatively stingy. A Chinese company which is breaking into the US market is considering two distributors, one based in California and another based in Nevada. The two distributors seem roughly equal in quality and price. Which distributor would you advise the Chinese company to select. Why?

11. McIntyre Qs II Suppose Washington state is suffering from high unemployment. Its legislators would like to find a way to expand employment by encouraging Chinese manufacturers to choose distributors based in Washington state. You are an adviser to a Washington state legislator. What changes would you suggest that Washington state make to its laws? If you were on the Supreme Court, in what situations would you allow those injured by products to sue the manufacturer? Would you adopt White’s Stream of Commerce theory? O’Connor’s Stream of Commerce plus? Kennedy’s theory in McIntyre? Some other rule? 11