Agenda for 21st Class

1. Agenda for 21st Class • Admin • Name plates • Handouts • Slides • Burger King • No class Friday 11/9 • Next class is Monday 11/12 • Assignment is due 11/12 • Personal Jurisdiction • Review of International Shoe & Hanson v. Denkla • World Wide Volkswagen • McIntyre

2. Assignment I • Read Handout (Burger King) • Blackboard Questions • Personal Jurisdiction Q4 and Q5 • (WG1) Briefly summarize Burger King • Handout pp. 117ff. Q1 (WG2), • (WG3) Suppose you buy Duck Boots mail order from LL Bean and pay with a check. They send you the boots, but your check bounces. LL Bean sues you in Maine, where it is headquartered. Does the Maine court have jurisdiction over you? • Yeazell pp. 125-32 • (WG4) Briefly summarize Abdouch • Questions on next slide

3. Assignment II • For each of the following situations, would there be subject matter jurisdiction? If the suit was in state court, could the defendant remove it to federal court? Is there personal jurisdiction? What substantive law would apply? • (WG5) The New York Times posted an article to nytimes.com about Dustin Hoffman that Dustin Hoffman, who lives in California, alleges defames him. Dustin Hoffman sued the New York Times in federal court in California. • (WG6) In the early days of the internet, Toppin registered the domain name unitedairlines.com. Toppin then sent a letter to the general counsel of United Airlines at United’s Houston headquarters. In that letter, Toppin offered to sell the domain name to United Airlines for $50,000. United Airlines sued Toppin in a Texas state court alleging violation of its trademark. • (WG7) Suppose Beatrice Potter makes beautiful ceramics and markets them through her website. Cal, a California citizen, placed an order for a $1000 bowl on Beatrice’s website. Beatrice shipped the bowl to Cal’s home in Beverly Hills, but when it arrived, Cal claimed it was broken and sued Beatrice in Los Angeles superior court.

4. Review of Choice of Law I • Analysis of interests • Relevant to determining state with “most significant relationship" • Plaintiff’s state has interest in applying its law if its law favors the plaintiff • Defendant’s state has interest in applying its law if its law favors the defendant • Accident state has interest in applying its law if doing so would deter accidents • Hard to judge which state’s interest is greater

5. Review of Choice of Law II • Choice-of-law clauses • Validity depends on whether issue is one parties could have resolved by contract • If choice-of-law affects default rule. • Then choice-of-law clause always valid • If choice-of-law affects mandatory rule • Then choice-of-law clause only valid if chosen law has “substantial relationship” to dispute and not contrary to “fundamental policy” of state with greater interest in the issue. • Apply to substantive law, not choice-of-law • Clause that says “contract governed by California law” means apply California contract law • NOT do analysis of choice of law as California would do it, which might mean apply NY or Russian contract law.

6. Review of Personal Jurisdiction I International Shoe Don’t analyze in personamjurisdiction over corporations by asking if corporation is “present” in state Instead analyze “minimum contacts” Very substantial contacts give rise to general jurisdiction Corporation can be sued even if lawsuit is not related to contacts with state State of incorporation or headquarters More sporadic contacts give rise to specific jurisdiction Corporation can be sued only if lawsuit is related to contacts with state Hanson v Denckla Contacts only count if defendant purposefully availeditself of the benefits of the forum Jurisdiction cannot be established by the unilateral acts of the plaintiff. Minimum contacts analysis is (almost?) exclusively analysis of defendant contacts 6

7. How Do New Topics Fit Together Need to analyze Joinder, Subject Matter Jurisdiction, Personal Jurisdiction, Erie, Choice of Law separately Joinder Primarily issue for plaintiff Defendant can make motion that joinder is improper Or to assert third-party claim or counterclaim etc. Subject matter jurisdiction Plaintiff needs to decide if can file suit in federal court But may prefer to file suit in state court Defendant needs to decide whether to make 12(b)(1) motion if plaintiff filed in federal court Defendant needs to decide whether to try to remove to federal court If plaintiff filed in state court Issue for judge, if defendant makes 12(b)(1) motion Issue for judge (and law clerks) even without motion Personal jurisdiction Plaintiff needs to decide where initially to sue Defendant needs to decide whether to make 12(b)(2) motion Issue for judge, if defendant makes 12(b)(2) motion 7

8. How Do New Topics Fit Together Erie – Usually so obvious that no one argues If Defendant makes SJ motion based on statute of limitations, might discuss Erie If plaintiff disagrees, might discuss Erie Choice of law Plaintiff needs to think about choice of law when drafting complaint and thinking about where to sue Defendant making motion to dismiss or SJ motion may need to argue which law applies in memorandum in support of motion Plaintiff might dispute in response memorandum Parties might make arguments to judge about choice of law when discussing jury instructions 8

9. World-Wide Volkswagen Briefly summarize World Wide Volkswagen If Audi and Volkswagen of America had contested personal jurisdiction in the Oklahoma District Court, Oklahoma Supreme Court, and U.S. Supreme Court, do you think the U.S. Supreme Court would have found that the Oklahoma District Court had personal jurisdiction over Audi and Volkswagen of America? Argue both for and against jurisdiction. Would the case have come out differently if the Robinsons had gotten into an accident in New Jersey and sued in a New Jersey court, but the facts were otherwise the same? Suppose the Robinsons had purchased their Audi in California from Pacific Audi in Torrance, had gotten into an accident in California, and sued Audi, Volkswagen of America, Pacific Volkswagen (the regional distributor, based in Nevada) and Pacific Audi in a California court. Would the California court have jurisdiction over all, some, or none of the defendants? Note that there is a passage in the opinion which directly addresses this question. Is it dicta? 9

11. Stream of Commerce Product manufactured in A, sold to distributor in B, and sold to consumer by retailer in C White dicta in World-Wide Volkswagen (stream of commerce) There is jurisdiction over mfg in C, if sale is “not simply an isolated occurrence, but arises from the efforts of the mfgor distributor to serve, directly or indirectly the market for its products” in C O’Connor plurality opinion in Asahi (1987) (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 mfg has direct contractual relationship with retailer in state C? No majority opinion on stream of commerce in Asahi Majority agreed that no jurisdiction in California over indemnity suit between foreign manufacturer and foreign part supplier, when California plaintiff had settled with foreign manufacturer, because inconsistent with “fair play and substantial justice,” even if purposeful availment could be satisfied. 11

12. McIntyre I Briefly summarize McIntyre 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(see 2nd paragraph on p. 107) 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? 12

13. McIntyre II 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? 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? 13

14. Next Class Personal Jurisdiction Contracts Internet Relatively easy, because just applications of purposeful availment standard 14