The Defendant/Petitioner has filed its merits brief in the U.S. Supreme Court in BMS v. Superior Court.  This is the case where the California Supreme Court expanded specific personal jurisdiction beyond recognition by basing specific jurisdiction on a pharmaceutical company’s forum contacts involving different products and people other than the plaintiffs.  We wrote about the opinion and its problems here, here, and here, and the opinion came in at number one on our 2016 worst ten list.

As expected, the Petitioner pharmaceutical company has put forth compelling arguments that the California Supreme Court’s version of specific jurisdiction runs against binding precedent and is an all-around bad idea. The Petitioner is also joined by a number of amici, most notably the United States of America.  (You can view all the briefs on the SCOTUSblog here.)  If we have been critical of the Solicitor General in the past, we will voice no concern this time around.  The SG hit the nail on the head, and the United States’ brief reinforces the Petitioner’s very strong arguments—and adds another, which we will get to in a minute.

First, the briefs. The general thrust of both briefs is that the California Supreme Court’s “sliding scale” approach to specific jurisdiction impossibly contradicts binding precedent.  A court simply court cannot base specific jurisdiction on a defendant’s forum contacts involving other individuals and other products, no matter how intense those contacts are.

For the Petitioner, it comes down mainly to one concept—proximate causation. That is to say, for a claim to “arise from or relate to” a defendant’s forum contacts, the defendant’s activities in the state must be a proximate cause of the plaintiff’s lawsuit.  Take, for example, this opening salvo:

The [California Supreme Court] concluded that Bristol-Myers could be haled into California on respondents’ claims merely because Bristol-Myers sold Plavix to other persons and developed other products in the State.

            That is not how specific jurisdiction works.  Since International Shoe Co. v. Washington, 326 U.S. 310 (1945), this Court has made clear time and again that “specific or case-linked” jurisdiction requires a causal connection between the defendant’s forum conduct and the litigation. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).  That bedrock requirement ensures that a common connection links the defendant, the forum, and the litigation; that States do not assert jurisdiction over matters occurring and directed entirely outside their borders; and that any litigation to which a defendant is subject is a direct and foreseeable consequence of its in-state activities.  Courts cannot dispense with this causation requirement because a defendant has wide-ranging contacts with a State.  Only general jurisdiction allows that, and then only where the defendant is at home.

Petitioner’s Br. at 2. This is (or at least should be) an uncontroversial description of specific jurisdiction, and the Petitioner draws from it that specific jurisdiction requires a “causal connection” between the defendant’s forum contacts and the plaintiff’s claims. Id. at 14.

Here, the difference between general jurisdiction and specific jurisdiction is key: “General jurisdiction depends on the intensity of a defendant’s affiliations with a State relative to his activities as a whole. . . .  [¶]  Specific jurisdiction, by contrast depends on there being a ‘relationship among the defendant, the forum, and the litigation.’”  Petitioner’s Br. at 15 (citations omitted).  That relationship requires a link between (1) the defendant and the forum and (2) the forum and the litigation. Id. at 15-16.  And that link is formed by causation—the defendant’s forum contacts must have caused the plaintiff’s alleged injury and the resulting lawsuit. Id. at 16-17.

It is difficult to argue with this proposition. The Petitioner cites a number of Supreme Court opinions finding specific jurisdiction over claims arising from the very activity that the defendant conducted in the state.  Conversely, “in no instance has the Court found specific jurisdiction based on any relationship other than a causal one between the defendant’s forum contacts and the plaintiff’s suit.” Id. at 20.

A number of policy reasons support this position: It prevents states from impinging on their co-equal sovereigns, it allows defendants to predict where they are subject to jurisdiction and where they are not, and it is eminently fair.  It will come as no surprise to our readers that “fairness” is where we think the brief really sings.  This case exists because of mass tort litigation tourism and blatant forum shopping, where hundreds of non-California plaintiffs combined their lawsuits with hundreds of unrelated Californians for tactical reasons.

Simply put, “[d]ue process has no interest in encouraging forum shopping of this kind.” Id. at 32.  We agree, and we like this quote too:

It makes no difference that a State may be adjudicating claims of a similar subject matter brought by its own residents. Litigation of such claims does not change the fact that for the non-resident plaintiffs—whose claims did not arise within the State . . . —the court will need to oversee the collection and presentation of trial evidence gathered from far-away forums, undertake a choice-of-law analysis with respect to each forum’s laws, and potentially apply the laws of those other forums to all or parts of each non-resident plaintiff’s claims. There are multiple ways to promote efficiency and judicial economy in mass tort litigation without sidelining specific jurisdiction principles, and without imposing these sorts or demands on trial courts.

Id. (emphasis added). That last part is really important, because the plaintiffs’ retort will be that massing hundreds of cases in California is efficient.  But efficiency does not trump due process, and it’s a false promise in any event.  If Plaintiff were truly interested in efficiency, there are multiple ways to promote efficiency without altering constitutional rights:  The plaintiffs could sue together in New York or Delaware, where the courts have general jurisdiction over the company; they could have sued in federal court and gone to the MDL; the plaintiffs could have banded together in their respective home states.

The Petitioner and the United States both emphasize this point, with the Petitioner observing that “the rationale for suing in a forum with no causal link to the plaintiff’s claim is more likely tactical: an attempt, usually at the insistence of a plaintiff’s attorney, to pick a forum perceived to be particularly plaintiff-friendly.” Id. at 31 (emphasis added).  Bingo.

There is more to the briefs, but we have given you the main gist. By divorcing specific jurisdiction from forum contacts that caused the litigation, and instead basing jurisdiction on the intensity of the defendant’s unrelated forum contacts, the California Supreme Court collapsed specific jurisdiction into general jurisdiction, while at the same time holding unanimously that general jurisdiction was not available.  We continue to scratch our heads at that result.

The United States added one additional point—that “the California Supreme Court’s approach could have implications for the United States’ international relationships and trade interests.” Brief of the United States, at 26-27.  As the Solicitor General further explained, it would be “especially problematic” if the California Supreme Court’s rule were applied to expose foreign corporations to lawsuits in California “simply because the company in question was engaged in a multijurisdictional course of conduct that gave rise to at least some claims of injury within that forum State.” Id. at 27.  The Solicitor General also expressed skepticism about the plaintiffs’ motives:  “Nor is there any guarantee that plaintiffs who have their choice of jurisdictions would seek out forum where litigation is more convenient . . . —rather that joining claims with those of resident plaintiffs in forums with the procedural rules or jury pools that the plaintiffs consider most favorable.”

The case is set for argument on April 25, 2017. There is, by the way, a second personal jurisdiction case on the Supreme Court’s argument calendar on that day—a FELA case that similarly involves a non-resident plaintiff suing non-resident defendant.  It will be an interesting day.