Presenting a live 90 ‐ minute webinar with interactive Q&A Personal Jurisdiction Over Absent Personal Jurisdiction Over "Absent" Product Liability Defendants Strategies to Establish or Defeat Personal Jurisdiction and Proactive Steps to Obtain Desired Jurisdiction THURS DAY, OCTOBER 13, 2011 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific T d Today’s faculty features: ’ f l f Melissa Murphy-Petros, Wilson Elser Moskowitz Edelman & Dicker, Chicago Ningur Akoglu, Herzfeld & Rubin , New Y ork Cary S . S klaren, Herzfeld & Rubin , New Y ork The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Melissa A. Murphy-Petros Of Counsel Presenter Wilson Elser Title Office Date “Stream of Commerce” v. “Stream of Commerce Plus” Commerce Plus I. The Current Supreme Court Landscape 5
Introduction • Personal jurisdiction is frequently litigated in Personal jurisdiction is frequently litigated in Personal jurisdiction is frequently litigated in Personal jurisdiction is frequently litigated in product liability cases. product liability cases. 6
When the When the product defendant is When the When the product defendant is product defendant is “absent product defendant is absent absent” from absent from from from plaintiff’s chosen forum, the plaintiff’s chosen forum, the personal jurisdiction personal jurisdiction question generally distills to the question generally distills to the scope and scope and application application of the stream of the stream of commerce of commerce theory theory of of specific jurisdiction. specific jurisdiction. 7
What is the stream of commerce theory? theory? • Personal jurisdiction may be permissible over an Personal jurisdiction may be permissible over an Personal jurisdiction may be permissible over an Personal jurisdiction may be permissible over an “absent” defendant whose product has traveled “absent” defendant whose product has traveled through a through a chain of distribution or manufacture chain of distribution or manufacture before reaching its before reaching its ultimate consumer. ultimate consumer. 8
Two Key Factors 1) 1) Defendant is 1) 1) Defendant is Defendant is a non Defendant is a non a non-resident a non resident resident acting outside resident acting outside acting outside of acting outside of of of plaintiff’s chosen forum. plaintiff’s chosen forum. 2) Defendant has ) Defendant has placed a p p laced a product into the p p roduct into the stream stream of commerce that causes harm inside of commerce that causes harm inside plaintiff’s plaintiff’s chosen forum. chosen forum. 9
Origin World World-wide Volkswagen v World World wide Volkswagen v wide Volkswagen v Woodson wide Volkswagen v. Woodson Woodson, Woodson 444 U.S. 444 U.S. 286 (1980). 286 (1980). 10
World-Wide Volkswagen • May an Oklahoma court exercise PJ over an May an Oklahoma court exercise PJ over an May an Oklahoma court exercise PJ over an May an Oklahoma court exercise PJ over an automobile retailer and wholesaler, both New automobile retailer and wholesaler, both New York corporations, in a York corporations, in a product liability action? product liability action? • Defendants’ only contact with Oklahoma was Defendants’ only contact with Oklahoma was through through the sale of a car the sale of a car to a non-resident to a non-resident consumer consumer in New York, who then drove the car in New York, who then drove the car to to Oklahoma where the Oklahoma where the subject accident occurred. subject accident occurred. 11
World-Wide Volkswagen • No PJ in Oklahoma No PJ in Oklahoma – No PJ in Oklahoma No PJ in Oklahoma – Defendants did not make any efforts, either directly or indirectly, to serve the Oklahoma market. – PJ over defendants cannot be based solely upon unilateral act of the plaintiff-consumer. 12
World-Wide Volkswagen • The Supreme Court rejected plaintiff The Supreme Court rejected plaintiff’s argument The Supreme Court rejected plaintiff The Supreme Court rejected plaintiff s argument s argument argument that it was foreseeable to defendants that the that it was foreseeable to defendants that the car car could cause injury in Oklahoma because cars are could cause injury in Oklahoma because cars are mobile by their “very design and purpose.” mobile by their “very design and purpose.” 13
World-Wide Volkswagen • Relevant foreseeability is Relevant foreseeability is based on Relevant foreseeability is Relevant foreseeability is based on based on defendan based on defendan defendant’s defendant s s conduct and connection with the conduct and connection with the forum State – forum State – based on based on those those factors, could defendan factors, could defendant foresee t foresee being sued there? being sued there? • The “mere likelihood that the product will find its The “mere likelihood that the product will find its way into the way into the forum State” is forum State” is not “critical to the not “critical to the due due process analysis.” process analysis.” 14
World-Wide Volkswagen • BUT BUT BUT – “ BUT – “[T]he forum State does [T]he forum State does [T]he forum State does not exceed its [T]he forum State does not exceed its not exceed its not exceed its powers powers under the Due Process Clause if it asserts under the Due Process Clause if it asserts personal jurisdiction over a personal jurisdiction over a corporation that corporation that delivers its products into the stream of commerce delivers its products into the stream of commerce with the with the expectations that they will be purchased expectations that they will be purchased by consumers b b consumers i i i t in th th f the f forum orum St S St t ” State. e.” ” 15
World-Wide Volkswagen • Question left open: Question left open: Under what circumstances will Question left open: Question left open: Under what circumstances will Under what circumstances will Under what circumstances will defendan defendant’s act of t’s act of participating participating in the in the placement placement of a product in the stream of commerce of a product in the stream of commerce render it render it subject defendan subject defendant to t to personal jurisdiction in the personal jurisdiction in the forum state? forum state? In other words, when is In other words, when is it it foreseea f oreseeabl ble t bl t to d t d f defen endan d ant th t that it t th th t it t it t its pro produc d uct t ill t will ill wind ill i d d up in the forum state? up in the forum state? 16
Asahi Metal Industry Co., Asahi Metal Industry Co., Ltd. v. Superior Court of Asahi Metal Industry Co., Asahi Metal Industry Co., Ltd. v. Superior Court of Ltd. v. Superior Court of Ltd. v. Superior Court of California, California, 488 U.S. 102 (1987). 488 U.S. 102 (1987). 17
Asahi • Recognize lower federal and state courts Recognize lower federal and state courts’ differing Recognize lower federal and state courts Recognize lower federal and state courts differing differing differing interpretations of World-Wide Volkswagen interpretations of World-Wide Volkswagen ’s ’s “stream of commerce” statement. “stream of commerce” statement. BUT – BUT – Did not resolve the conflict. id not resolve the conflict. 18
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