SCOTUS & Personal Jurisdiction: Ford V. Montana and Ford V. Bandemere

Media Clip Compilation SCOTUS & Personal Jurisdiction: Ford v. Montana and Ford v. Bandemere https://www.upi.com/Top_News/US/2020/10/07/Shorthanded-Supreme-Court-hears-Google- Oracle-fight-Ford-cases/4001602073011/ Shorthanded Supreme Court hears Google-Oracle fight, Ford cases By Don Jacobson UPI.com October 7, 2020 A shorthanded U.S. Supreme Court, now in its new term, will hear cases Wednesday involving three high-profile companies -- tech giant Google, software maker Oracle and auto conglomerate Ford Motor Co. The high court opened its new term Monday with just eight justices and a 5-3 conservative majority following the death of Ruth Bader Ginsburg last month. Experts say two disputes on the docket Wednesday could have wide-ranging implications for how software is developed and how manufacturers are held liable for injuries connected with their products. Arguments in all three cases -- Google vs. Oracle America, Ford Motor Co. vs. Montana Eighth Judicial District Court and Ford Motor Co. v. Bandemer -- will be heard virtually. In the case of Google and Oracle, which has been in courts for years, the two companies are fighting over the software code used by Google to develop its Android smartphone operating system. Oracle argues that its Java application programming interface is intellectual property protected by copyright. Google contends that the interface is not a creative work that warrants copyright protection, but rather falls into "fair use" territory as a technical, functional platform. Google is appealing a 2018 federal appellate court decision that found the Java interface is not subject to fair use -- a decision that's alarmed software developers as a potential roadblock to innovation in a vital industry. In the combined cases involving Ford, the automaker is fighting claims that it's liable for injury- related damage awards in Minnesota and Montana -- arguing that it has no direct connection to either state. Ford's argument was rejected by both the Minnesota and Montana supreme courts. The jurisdictional fight could have a significant impact for the American public and any company that makes an argument on similar grounds, analysts note. "Every American citizen must have the right to access the courts of his or her home state to rectify wrongs committed by corporations that mass-produce and distribute unsafe products throughout the United States," the nonprofit Center for Auto Safety wrote in an amicus brief. A coalition of states have also warned that ruling in Ford's favor could even impact the prescription drug industry -- and allow opioid manufacturers to avoid liability by moving the burden of responsibility to "local distributors and doctors." The high court will continue with eight justices until the Senate confirms a successor for Ginsburg. President Donald Trump has nominated appellate judge Amy Coney Barrett for the bench, for whom the Senate will begin the confirmation process on Monday. https://www.reuters.com/article/legal-us-otc-ford-idUSKBN26S3KC Supreme Court struggles over broad jurisdictional rule in Ford crash cases By Alison Frankel Reuters October 7, 2020 During oral arguments Wednesday in a pair of product liability cases against Ford, U.S. Supreme Court Justice Samuel Alito rather heatedly described the court’s dilemma in confronting personal jurisdiction in the internet age. The Supreme Court’s seminal ruling on the intersection of personal jurisdiction and due process fairness for defendants was 1945’s International Shoe v. State of Washington, in which the justices held that corporations can be sued in states where they conduct significant business “according to our traditional conception of fair play and substantial justice.” But it’s not 1945 anymore, Justice Alito said, in a nod to other justices’ questions about how the internet has expanded interstate commerce for even the smallest of businesses. (Chief Justice John Roberts, for instance, proposed a hypothetical about whether a duck decoy artisan in Maine who advertised his decoys on the internet could be sued wherever they’re sold.) And in the 1945 International Shoe decision, Justice Alito said, the Supreme Court did not even attempt to discern what due process meant when the Fourteenth Amendment was adopted, instead applying its own notion of fair play. So what is today’s court supposed to do, Justice Alito asked Deepak Gupta of Gupta Wessler, who represents two plaintiffs who sued Ford in their home states after they were injured in crashes involving second-hand Ford vehicles. “We could perhaps decide this case within the contours of our existing cases because there’s nothing particularly 21st century about what happened here,” the justice said. “But we’re in a strange situation … The world in 2020 is completely different. You may just say, ‘Well, decide this on the basis of your existing case law and not propose anything grander.’ But if you have a solution to the bigger problems that have been framed by some of the questions, it would be interesting to hear it.” Based on Wednesday’s arguments, that’s the crux of the Supreme Court’s challenge in the Ford cases: There’s no clear path to a grand resolution. Should the court sidestep what Justice Neil Gorsuch called “the difficulties our doctrinal tests have created” to articulate a whole new framework based on an originalist view of due process? Should the justices build on the court’s own precedent to adopt a sweeping new test for personal jurisdiction – even though Gupta and Ford counsel Sean Marotta of Hogan Lovells proposed completely different tests, both purportedly rooted in Supreme Court precedent? Or, alternatively, should the justices rule narrowly to avoid imposing a problematic new test? “I don’t know which way it’s going to go,” said Fordham law professor Howard Erichson. “Maybe this is not the case for redefining personal jurisdiction.” University of Connecticut law professor Alexandra Lahav agreed that the justices seemed to struggle with the consequences of every available path. “They seemed to have difficulty figuring out how much they want a general rule and how much they want to do justice in the individual cases,” she said. Erichson wrote in a pre-argument blog post that Ford was offering the court “an aggressive but superficially plausible reading” of the Supreme Court’s recent precedent restricting jurisdiction. As Marotta explained the proposed test on Wednesday, the court’s precedent in such cases as 2017’s Bristol-Myers v. Superior Court of California and 2014’s Walden v. Fiore lead to the conclusion that to establish specific jurisdiction plaintiffs must show defendant’s conduct within the state where they have sued caused their injuries. It’s “irrelevant,” Marotta said, that Ford marketed, sold and serviced cars in Minnesota and Montana, where it was sued in the cases before the Supreme Court. Ford did not design, manufacture or sell the vehicles involved in the crashes at the heart of the two cases in Minnesota or Montana, Marotta said. (The vehicles in both cases were second-hand so they were not sold by Ford dealers.) Under Ford’s causation test, Marotta said, Montana and Minnesota did not have jurisdiction over claims that the vehicles were defective. Justice Elena Kagan offered the most forceful opposition to Marotta’s proposed test. In the Bristol-Myers case, she pointed out, the Supreme Court said plaintiffs with no connection to California could not participate in a mass tort action filed in California state court. By contrast, Justice Kagan said, the plaintiffs suing Ford lived in, used Ford vehicles and were injured in the states where they sued. Justice Clarence Thomas said Marotta’s proposed test left him “a little confused – how do we get from the Due Process Clause to your proximate cause argument?” Justice Stephen Breyer pointed out that the court’s jurisdictional doctrine is intended to prevent unfairness to defendants who shouldn’t be haled into court at the whim of plaintiffs. Ford, he said, does a lot of business in Minnesota and Montana, and even if it did not sell the exact vehicles involved in the crashes in the two cases within state lines, it sells lots of cars and trucks of the same model. “Since they do a lot of business with the same kinds of cars there, they have to be prepared to defend against this kind of suit,” Justice Breyer said. “So what’s unfair about it?” Plaintiffs’ counsel Gupta said Ford’s proposed test would turn jurisdiction into “an irrelevant scavenger hunt,” introducing complexity and unfairness into what should be a simple regimen. He offered the justices a different test: Plaintiffs must show that a defendant has “purposefully availed” itself of the opportunity to conduct business in a state and that their suit is “related to” the defendant’s conduct in the forum. When Justice Thomas asked Gupta to clarify his definition for “related to,” Gupta said plaintiffs can meet the test by showing that defendants sold the same products at issue in their cases within the state. (Even if Ford did not sell the exact vehicles involved in the Minnesota and Montana cases, in other words, plaintiffs’ claims were related to Ford’s marketing, sale and service of cars and trucks of the exact same make and model.) But the justices posed hypotheticals showing that Gupta’s test has its own complexities. Justice Alito asked if, say, a rebuilt, customized car should fit the definition. Justice Gorsuch homed in on whether the relevant product is the finished car or a part within the vehicle. Justice Breyer wanted to know if Gupta had in mind a standard for how many identical products a defendant would have to sell to meet his standard. In his rebuttal, Ford counsel Marotta highlighted the problems that could arise from the relatedness test, which he said was ungrounded in common law (or even in the records of the Montana and Minnesota cases).

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