Remember when George H.W. Bush was the 41st President of the United States? Back when the Warsaw Pact dissolved and the U.S.S.R. became the Commonwealth of Independent States? Back when Pan Am ceased flying?
Well, I do.
(No snarky questions professing ignorance about the Warsaw Pact, if you please.)
And just about the time I thought I had it, Professor Trail smiled that mischievous smile of his and came straight at us with something about a “Stream of Commerce” and Asahi Metal Inustry v. Superior Court. As best I can recall, we were either supposed to elucidate what the law of personal jurisdiction actually was in the wake of Asahi, or else predict who would prevail in a cage match between Justice Sandra Day O’Connor and Justice William Brennan.
The result was predictable confusion–confusion that reached down the ages.
Until today. Professors and law nerds everywhere had the vapors because the Supreme Court of the United States had a chance to clear it all up in J. McIntyre Machinery Ltd. v. Nicastro. After the break, a few words on how end-of-term alphabet soup begat “Son of Asahi.”
Justice Kennedy set out the Asahi problem. Does jurisdiction depend more upon the Defendant taking specific action toward the forum state, or foreseeability enough:
In Asahi, an opinion by Justice Brennan for four Justices . . . contended, “jurisdiction premised on the placement of a product into the stream of commerce [without more] is consistent with the Due Process Clause,” for “[a]s long as a participant in this process is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise.” . . . .
The standard set forth in Justice Brennan’s concurrence was rejected in an opinion written by Justice O’Connor; but the relevant part of that opinion, too, commanded the assent of only four Justices, not a majority of the Court. That opinion stated: “The ‘substantial connection’ between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State. The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State.”
Nicastro gave the Court a chance to pick. But alas, five cats could not be herded into a single corral.
Broadly speaking, the question presented in Nicastro was whether a foreign manufacturer could be hauled into the state where its machine injured someone. The manufacturer had a distributor for U.S. sales, making such sales foreseeable, but had not itself targeted the state where the injury occurred.
But here is where the advocacy begins.
According to Justice Kennedy, writing for the plurality, the question was whether a “British manufacturer of scrap metal machines was subject to jurisdiction in New Jersey, even though at no time had it advertised in, sent goods to, or in any relevant sense targeted the State.”
Justice Ginsberg stated it a bit differently:
A foreign industrialist seeks to develop a market in the United States for machines it manufactures. It hopes to derive substantial revenue from sales it makes to United States purchasers. Where in the United States buyers reside does not matter to this manufacturer. Its goal is simply to sell as much as it can, wherever it can. It excludes no region or State from the market it wishes to reach. But, all things considered, it prefers to avoid products liability litigation in the United States. To that end, it engages a U. S. distributor to ship its machines state-side. Has it succeeded in escaping personal jurisdiction in a State where one of its products is sold and causes injury or even death to a local user?
She also might have mentioned that the “three-ton metal shearing machine severed four fingers on Robert Nicastro’s right hand.”
So, how did the Brennan/O’Connor cage match get decided?
It didn’t. Now it’s just the Kennedy/Ginsburg cage match:
- Justice Kennedy (with Roberts, Scalia, and Thomas) would hold that Justice Brennan’s concurrence was “inconsistent with the premises of lawful judicial power,” because “it is the defendant’s actions, not his expectations, that empower a State’s courts to subject him to judgment.” Targeting the United States is not the same thing as doing business in New Jersey.
- Justice Ginsberg (with Kagan and Sotomayor) would hold that the manufacturer’s intent to target the U.S. market was enough to subject it to jurisdiction in New Jersey, even if it’s independent distributor was responsible for the New Jersey sale.
- Justice Breyer and Justice Alito decided that both groups had cooties and would only concur in the judgment. They thought it “unwise to announce a rule of broad applicability without full consideration of the modern-day consequences,” which they thought were absent from the case.
Justice Kennedy recognized that before today’s opinion, “[t]he rules and standards for determining when a State does or does not have jurisdiction over an absent party [were] unclear because of decades-old questions left open in Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U. S. 102 (1987).”
They still are.
For want of a fifth vote, we are about 14,000 words the richer after today’s three opinions, but none the wiser.
Is it possible to read three Supreme Court opinions on personal jurisdiction and know less than when you started?