The United States Supreme Court today granted certiorari in Bristol-Myers Squibb Co. v. Superior Court.  Here is a link to the order.  The California Supreme Court decision in this case was our worst case for all of 2016.  Here is our description of what the Supreme Court has just agreed to review:

Bristol-Myers-Squibb v. Superior Court, 377 P.3d 874 (Cal. 2016). Ultimately (and fortunately) there was not much contest for the worst drug/device product liability decision of the year.  The highest court of the largest state in the country – check.  Direct defiance of United States Supreme Court precedent on a significant constitutional issue – check.  Significant impact on the litigation of mass torts – check.  In Bauman, the Supreme Court condemned “exorbitant exercises” of general jurisdiction that do not “permit out-of-state defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.”  Such “unacceptably grasping” “[e]xercises of personal jurisdiction [are] so exorbitant” that they “are barred by due process.”  The paradigm of such overly “grasping” jurisdiction is that which “would presumably be available in every other State in which a [defendant’s] sales are sizable.”  So the California Supreme Court promptly fashions a theory of “specific” jurisdiction that allows masses of plaintiffs, anywhere in the country, to sue a drug company (and presumably any other large corporation), as long as one Californian (or, here, 86 of 678) is suing over the same conduct.  The reason?  Because the defendant does significant general business in California.  If your reaction is that BMS simply shifted the pre-Bauman “continuous and substantial” jurisdiction standard from general jurisdiction to specific jurisdiction, you would be right.  We haven’t seen such blatant defiance of Supreme Court precedent in our bailiwick since the First Circuit in Bartlett (2012-1), and that one headed up our bottom ten, too.  Here’s hoping for a similar result in the Supreme Court.  We chronicled California sliding to the bottom of the slippery slope here and here.

If our side wins this, then we’ll see a significant reduction in both the size and reach of litigation in all those places where we don’t want to be. We’ll be following this closely.

This is the second time in two years that we have written the Drug and Device Law Christmas blogpost. Last year, your dedicated blogger posted on Christmas Day a nice little piece on innovator liability that we are sure you all read while listening to Andy Williams, drinking egg nog, and roasting chestnuts on an open fire (note: If you would rather not light an open fire, a gas grill is a very capable substitute for roasting chestnuts, if that is your thing.) If you did not read our post last year, we forgive you.  And whether you read us regularly or just pop in from time to time to read about preemption, please accept our holiday greetings and our undying gratitude.  To all our readers, Happy Holidays from the DDLB!

Our gift to you on this Friday, December 23, 2016, is a blogpost discussing a topic on which we have not written a lot—alter ego personal jurisdiction.  That is when a court takes jurisdiction over a corporation based on the forum contacts of a corporate subsidiary.  We wrote about a district court rejecting alter ego jurisdiction here, but there is not much else discussing the subject in detail in the archive. That could be because successful examples of alter ego jurisdiction are exceedingly rare.  The most common scenario is where plaintiffs sue an alleged corporate wrongdoer and try to hale into court not only the alleged wrongdoer, but also its out-of-state corporate parent.  Their motivation is not a mystery:  Plaintiffs want more defendants, larger balance sheets, and deeper pockets to reach into.  And if the corporate parent has a recognizable “big” name, that’s all the better.

Unfortunately for plaintiffs and fortunately for the defense, this transparent ploy rarely works, and it did not work in a recent hip replacement case, Goldthrip v. Johnson & Johnson, No. 15-00651-KD-B, 2016 U.S. Dist. LEXIS 170801 (S.D. Ala. Dec. 8, 2016).  In Goldthrip, the plaintiffs sued not only the company that made and sold the hip implant, but also its corporate parent.  There were, however, two problems:  First, the plaintiffs sued in Alabama, but the parent corporation was a New Jersey company.  Second, the parent corporation neither made nor sold products; it was a holding company, as parent companies often tend to be. Id. at **2-4.

Continue Reading Alter Ego and Agency – A Different Spin on Jurisdiction

We do a lot of grousing on this blog, but we acknowledge that there is much for which we should be thankful.  This legal business permits us to keep our minds lively and our fingernails clean.  Even the rotten decisions aren’t totally awful; they force us to stay busy, offer a fine target for snark, and it is beyond glorious when logic and justice eventually triumph and eradicate the offending ruling.  (We’re looking at you Conte.  Your days are numbered.)

The Supreme Court’s decision in Bauman is an example of the beneficent arc of history.  After decades of doctrinal incoherence on personal jurisdiction, under which a large corporation could pretty much be sued anywhere for anything, SCOTUS restored common sense by holding that a court could exercise general personal jurisdiction over a corporation only if that corporation was “at home” in that jurisdiction – which pretty much was limited to the place of incorporation or principal place of business.  We blogged about Bauman more than once, but you can start here.  Around the same time as Bauman, SCOTUS issued the Walden v. Fiore opinion, which limited specific jurisdiction over corporations to cases where the corporation’s conduct targeted the jurisdiction and gave rise to the action in that jurisdiction.  Simple, right?

Wrong, says the California Supreme Court.  Bristol-Myers Squibb Co. v. Superior Court was a classic exercise in mass tort litigation tourism, as plaintiff lawyers cobbled together a group of plaintiffs who claimed that they had been injured by ingesting Plavix.  Out of 678 plaintiffs, only 86 lived in California.  The other 592 plaintiffs neither lived in California nor sustained any injury there.  It is not as if those plaintiffs knocked back Plavix after enduring the scary experience of Space Mountain at Disneyland or the Angels’ ineptitude at the Big A in Anaheim.  None of the Plavix was manufactured in California.  Clearly, the plaintiff lawyers had engaged in transparent forum-shopping, hoping that their non-California plaintiffs would benefit from pro-plaintiff California jurors and rulings.

Continue Reading Amicus Briefs Not So Friendly to California Supreme Court’s Dreadful BMS Personal Jurisdiction Decision

We are on a personal jurisdiction roll this week.  You might even say we’ve got Big Mo behind us.  That Mo, of course, refers to Momentum, though it also nicely captures the fact that yesterday’s defense-favorable personal jurisdiction case (Addelson) came out of Missouri.  Today’s case, Bauer v. Nortek Global HVAC LLC, 2016 WL 5724232 (M.D. Tenn. Sept. 30, 2016), is out of the Middle District of Tennessee.  The Bauer case does not involve drugs or medical devices. Rather, a bunch of consumers claimed they bought bum air conditioners.  But Bauer is a very interesting case because that ‘bunch’ of consumers styled themselves as a class or classes.  Thus, Bauer offers a useful application of Bauman personal jurisdiction principles to class actions.  The reasoning and prose are both sharp.

The Bauer class representatives came from Tennessee, Florida, Georgia, and Texas. (Why they didn’t add Alabama, Arkansas, Kentucky, Louisiana, Mississippi, and South Carolina to represent the entire SEC, we don’t know.  In any event, it is certainly understandable why clever plaintiff lawyers might want to cobble together classes of aggrieved air-conditioner buyers who live in hot places.) The claims included breaches of warranties and violations of the various states’ deceptive trade practices acts.  The defendants were not incorporated in Tennessee, nor did they have a principal place of business there.  One of the defendants had a distribution/manufacturing facility in Tennessee.  So what, you say?  You are exactly right, as it turns out.  The defendants filed a motion to dismiss all claims brought by the non-Tennessee plaintiffs for lack of personal jurisdiction.  The defendants won that motion.  They also moved to dismiss the Tennessee plaintiff’s claims based on the statute of limitations.  The defendants won that motion, too.  But for today’s purposes, we are focusing on the jurisdictional argument.

Continue Reading M.D. Tenn. Bids Adieu to Out-of-State Class Reps

This post is from the non-Reed Smith side of the blog.

There are two key rulings in Addelson v. Sanofi S.A., 2016 WL 6216124 (E.D. Mo. Oct. 25, 2016). Neither is novel or complex. The court can’t exercise personal jurisdiction over an out-of-state defendant on claims made by an out-of-state plaintiff and said out-of-state plaintiff can’t be used to defeat federal diversity jurisdiction. Their significance lies more in the fact that they were issued by the Eastern District of Missouri.

Defendant Sanofi (the U.S. subsidiary) is a Delaware corporation with its principal place of business in New Jersey. Id. at *1. Plaintiff Addelson is a resident of St. Louis County, Missouri. Plaintiff Braxton is a New Jersey resident. Plaintiffs both were prescribed and used the prescription medication taxotere in their home states. Id. Plaintiffs have no relationship with each other.

Plaintiffs’ counsel filed a single complaint on behalf of both women in state court in Saint Louis, Missouri – a known judicial hellhole favored by the plaintiffs’ bar. So, why join these two women? Plaintiff Addelson is a Missouri resident who suffered her alleged injury in Missouri which establishes personal jurisdiction for this incident over Sanofi. Plaintiff Braxton is a New Jersey resident which means there is no diversity between her and Sanofi which also means the case can’t be removed to federal court. Clearly a not-too-subtle attempt by plaintiffs to bring and keep this case in state court in St. Louis. Unfortunately, this is a tactic that has worked in Missouri. Missouri’s joinder rules have been broadly interpreted to often allow plaintiffs’ counsel to join together groups of plaintiffs from different states with nothing in common except use of the same product. So, 1 Missouri plaintiff gets you the connection to Missouri and 1 plaintiff from defendant’s home state defeats diversity and keeps you in state court.

Continue Reading Misjoined Plaintiffs Can’t Be Used to Forum Shop

Not all personal jurisdiction cases coming out of Pennsylvania are bad.  To be sure, an ED Pa judge’s recent embrace of the consent theory to get around Bauman was bad news – almost as bad as Philadelphia 76ers soon-to-be superstar Ben Simmons’s foot injury.  Happily, a much better opinion arrived last week:  Baker v. Livanova PLC et al., No. 1:16-cv-00260 (M.D. Pa. Sept. 29, 2016).  The author was Judge John E. Jones, the same judge who presided over the intelligent design case a couple of years ago.  Judge Jones has a reputation for being smart and trying to get things right, and the Baker decision won’t hurt that reputation one bit.

Baker is a putative class action, seeking medical monitoring based on an allegation that a heater-cooler system for regulating blood temperature during open heart surgeries exposed patients to a nasty bacterium.  In addition to suing companies that the court calls “Sorin” and “Sorin USA,” the plaintiffs also sued the parent company, LivaNova PLC, which is incorporated and headquartered in the United Kingdom.  The issue was whether there was personal jurisdiction over LivaNova.  (Sorin and Sorin USA did not contest personal jurisdiction.)  The plaintiffs said there was specific jurisdiction over LivaNova based on: (1) LivaNova’s contacts with Pennsylvania regarding the heater-cooler system, (2) LivaNova functioned as the alter ego of its subsidiaries, and (3) the almost ancient case of Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), placed distributors on the jurisdictional hook.  Note that general jurisdiction was not at issue, so the lovely Bauman case does not make even a cameo appearance. Then again, neither does the Walden case, which was decided by SCOTUS around the same time as Bauman and which says very important things about specific jurisdiction.  But even without discussing Walden, Judge Jones addresses plaintiffs’ argument correctly and coherently.  You might even say that the Baker case has an intelligent design.

Continue Reading M.D. Pa. Finds No Specific Personal Jurisdiction over Parent Company

The U.S. Supreme Court’s game-changing Bauman opinion in 2014 has us writing a lot on personal jurisdiction.  A while back we marveled over how quickly lower courts have responded to Bauman.  We had anticipated that it would take the passage of an entire generation of lawyers and judges steeped in International Shoe for Bauman’s more disciplined concept of general personal jurisdiction to take root.  The actual results have been better than we expected.  There have, however, been some bumps in the road.  There was the California Supreme Court’s aggressive take on specific personal jurisdiction in Bristol-Myers Squibb Co. v. Superior Court, where the court expanded this prong of personal jurisdiction beyond recognition.  The court essentially slapped the “specific jurisdiction” label on concepts of general jurisdiction that the U.S. Supreme Court overruled.  We discussed that case here.

Another open battlefield is jurisdiction by consent, and a district court in Pennsylvania recently entered an order favoring consent that again stretches personal jurisdiction beyond Constitutional limits.  The case is Bors v. Johnson & Johnson, No. 16-2866, 2016 U.S. Dist. LEXIS 128259 (E.D. Pa. Sept. 20., 2016), and the district court in Bors held that a foreign corporation consented to general personal jurisdiction in Pennsylvania merely by registering to do business in Pennsylvania. Id. at **1-12.  It was undisputed that the corporation had no other contacts with Pennsylvania and that the plaintiff’s action arose from commercial transactions that occurred outside that commonwealth.  In this district court’s view, the foreign corporation registration alone justified subjecting the corporation to general personal jurisdiction in Pennsylvania, i.e., personal jurisdiction over any dispute whatsoever, no matter the subject matter.

The district court was not writing on a clean slate. Since Bauman, several courts have considered consent to jurisdiction, and most have decided that registering to do business does not alone constitute consent to personal jurisdiction.  A notable example is Brown v. Lockheed-Martin Corp., 814 F.3d 619 (2d Cir. 2016), where the Second Circuit rejected “jurisdiction by consent” based on business registration and which prompted us to create our post-Bauman jurisdiction scorecard (including all consent cases), which you can find here.  The Second Circuit rejected general personal jurisdiction because allowing jurisdiction though “routine bureaucratic measures” would rob Bauman of any meaning by way of a “back door thief.”  814 F.3d at 640.  Nice.  In another major decision, the Delaware Supreme Court relied on Bauman to reverse its older decisions that had recognized jurisdiction by consent. See Genuine Parts Co. v. Cepec, 137 A.3d 123, 144-48 (Del. 2016).

For the district court in Bors, there was one fact that trumped everything else, including Bauman’s due process analysis:  Pennsylvania’s statute “specifically advis[ed] the [foreign corporation] registrant of its consent to personal jurisdiction through registration.” Id. at *2 (citing Pa. Consol. Stat. Ann. § 5301).  From this manifestation of “consent,” the district court found general personal jurisdiction and held that “general and specific jurisdiction principles applying to non-consensual personal jurisdiction do not apply.” Id.

Continue Reading Pennsylvania’s Long Arm Overreaches The Constitution And Bauman

Recently, we offered a detailed breaking news post about how the California Supreme Court had messed up its jurisdictional analysis in Bristol-Myers Squibb Co. v. Superior Court, — P.3d — (Ca. 2016), even worse than the California Court of Appeal had two years earlier. We have taken a few whacks at this BMS beast already—with taut arguments and acerbic wit, we think—but it still lives. Our thrusts in prior posts have gone towards the Bauman case, the court’s recognition that Bauman’s general jurisdiction standards were not satisfied, and then its creation of a specific jurisdiction standard that “becomes indistinguishable from general jurisdiction.” Based on plaintiffs’ counsel’s unilateral act of lumping together nonresident plaintiffs with some resident plaintiffs, all of whom allegedly have some commonalities (e.g., took the same drug), personal jurisdiction can be established over a nonresident defendant whose relationship with the nonresident plaintiff has nothing to do with plaintiff’s preferred forum. That sounds an awful lot like general jurisdiction, notwithstanding Bauman and the first half of the BMS decision.

There is a recent Supreme Court authority on specific jurisdiction, Walden v. Fiore, 571 U.S. —, 134 S. Ct. 115 (2014), and we have talked about it before. The BMS court relegated Walden to a single see also cite and largely looked to state court authority in its specific jurisdiction analysis. We thought that was strange, so we decided to drag Walden out and see what guidance the Supreme Court’s latest pronouncement on specific jurisdiction might have had for the BMS court if it looked.

Walden, as you may recall, involved a Nevada federal court Bivens action brought against Georgia police office deputized to work for DEA over a seizure of cash at a Georgia airport from travelers heading to Nevada, where they resided (along with holding some California status) and wanted to use the seized cash. The defendant also swore out an affidavit in Georgia in support of a forfeiture application, but plaintiffs got their cash back a few months later anyway. The Ninth Circuit pointed to the affidavit as an intentional act by the defendant committed “with knowledge that it would affect persons with a ‘significant connection’ to Nevada” and would cause “foreseeable harm” in Nevada.” This was enough for specific jurisdiction in Nevada per the Ninth Circuit. The Supreme Court reversed.

Rather than walk through the BMS specific jurisdiction analysis again, we are going to highlight the Walden analysis (omitting cites) to see if it is consistent with the idea that a purported common course of conduct by the nonresident defendant can bestow specific jurisdiction over nonresident plaintiffs when some resident plaintiffs are also in the mix.

  • Walden: “For a State to exercise jurisdiction consistent with due process, the defendant’s suit-related conduct must create a substantial connection with the forum State.”
    • As to BMS: “Suit-related conduct” sounds like something that must be related to the particular plaintiff’s allegation about her case, not somebody else’s case. The BMS rejoinder is that common conduct in terms of nationwide marketing is “suit-related conduct” that can connect the case to the forum even if the plaintiff has no connection.
  • Walden: “First, the relationship must arise out of contacts that the ‘defendant himself’ creates with the forum State. Due process limits on the State’s adjudicative authority principally protect the liberty of the nonresident defendant—not the convenience of plaintiffs or third parties. We have consistently rejected attempts to satisfy the defendant-focused ‘minimum contacts’ inquiry by demonstrating contacts between the plaintiff (or third parties) and the forum State.”
    • As to BMS: So much for that rejoinder. The convenience of joining together a bunch of plaintiffs from different states in a single case in a state of their lawyer’s choosing should not alter these principles.
  • Walden: “Second, our ‘minimum contacts’ analysis looks to the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons who reside there.”
    • As to BMS: The defendant’s contacts with the resident plaintiffs is critical to the BMS court’s decision to find specific jurisdiction over nonresident plaintiffs’ claims. While there is a look at contacts with the forum state, these are meaningless if not for the contacts with other plaintiffs.
  • Walden: “But a defendant’s relationship with a plaintiff or third party, standing alone, is an insufficient basis for jurisdiction. Due process requires that a defendant be haled into court in a forum State based on his own affiliation with the State, not based on the ‘random, fortuitous or attenuated’ contacts he makes by interacting with other persons affiliated with the State.”
    • As to BMS: That does not sound like an endorsement of using specific jurisdiction over a resident plaintiff’s claims as a hook to extend specific jurisdiction over the claims of many more nonresident plaintiffs’ claims.
  • Walden: The analysis of the Calder v. Jones cases, where there was specific jurisdiction for a California resident’s libel claims against a Florida magazine, focused on the California distribution of the article at issue, not just other articles or issues.
    • As to BMS: The suit-related conduct of the Calder defendant was that distribution in California of the libelous article allegedly produced harm to the plaintiff in California. That the magazine allegedly had a practice of writing libelous articles and distributing them around the county was irrelevant to the jurisdictional analysis. Similarly, allegedly producing harm to resident plaintiffs should add nothing to whether the alleged harm to the nonresident plaintiff resulted from the defendant’s actions in the forum.
  • Walden: “In short, when viewed through the proper lens—whether the defendant’s actions connect him to the forum—petitioner formed no jurisdictionally relevant contacts with Nevada. The Court of Appeals reached the contrary conclusion by shifting the analytical focus from petitioner’s contacts with the forum to his contacts with respondents.”
    • As to BMS: As above, it looks to us like the BMS court used the wrong lens.
  • Walden: “Petitioner’s actions in Georgia did not create sufficient contacts with Nevada simply because he allegedly directed his conduct at plaintiffs whom he knew had Nevada connections. Such reasoning improperly attributes a plaintiff’s forum connections to the defendant and makes those connections ‘decisive’ in the jurisdictional analysis. It also obscures the reality that none of petitioner’s challenged conduct had anything to do with Nevada itself.”
    • As to BMS: Attributing another plaintiff’s contacts with the forum to defendant when it comes to a nonresident plaintiff should be even more improper.
  • Walden: “Unlike the broad publication of the forum-focused story in Calder, the effects of petitioner’s conduct on respondents are not connected to the forum State in a way that makes those effects a proper basis for jurisdiction.”
    • As to BMS: The alleged effects of the BMS defendant’s conduct on the nonresident plaintiffs were not connected to the forum state at all.
  • Walden: “In this case, the application of [personal jurisdiction] principles is clear: Petitioner’s relevant conduct occurred entirely in Georgia, and the mere fact that his conduct affected plaintiffs with connections to the forum State does not suffice to authorize jurisdiction.”
    • As to BMS: The BMS defendant’s conduct with regard to the nonresident plaintiffs occurred in states other than California and the mere fact that its conduct allegedly affected other plaintiffs in California should not suffice to authorize jurisdiction over the nonresident plaintiffs.

To us, the lack of personal jurisdiction over the nonresident plaintiffs’ claims in BMS was pretty clear. We think Walden, although involving very different facts—just like the facts in the Vons case that BMS purported to follow were also very different—undercuts the result even further. General jurisdiction and specific jurisdiction are supposed to involve different analyses. Those analyses are supposed to be conducted as to each plaintiff, claim, and defendant. That is not what happened in BMS, though. We will look with interest at what happens with the forthcoming cert petition.

It’s been two years since the First District California Court of Appeals issued its ill-founded decision in Bristol-Myers Squibb Co. v. Superior Court, 175 Cal. Rptr. 3d 412 (Cal. App. 2014), which used specific personal jurisdiction to accomplish what the United States Supreme Court had, only six months earlier, condemned as “grasping” and “exorbitant” when attempted through general personal jurisdiction in Daimler AG v. Bauman, 134 S. Ct. 746 (2014).  We immediately blogged about that decision in our “Hotel California” post – describing the California court’s rationale in considerable detail.

Fortunately, the California Supreme Court promptly granted an appeal, which we duly noted here, of the following two questions: “(1) whether after Daimler AG v. Bauman, 571 U.S. ––––, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014), general jurisdiction exists; and (2) whether specific jurisdiction exists.” Bristol-Myers Squibb Co. v. S.C., 337 P.3d 1158 (Cal. 2014).

Thereafter “prompt” dropped out of the lexicon.

But today the wait is over.  The California high court has answered the two questions “no” and “yes.”  This latter ruling – a 4-3 decision − is almost certain to be appealed to the United States Supreme Court, as it creates a form of “specific” jurisdiction in mass tort cases that is every bit as “grasping” and “exorbitant” as that rejected as a Due Process violation in Bauman.  See Bristol-Myers Squibb Co. v. Superior Court (Anderson), S221038, slip op. (Cal. Aug. 29, 2016) (hereafter Anderson). Anderson involved mass tort litigation in California against a defendant that was neither headquartered nor incorporated in California, nor had any peculiar ties to the state.  The plaintiffs in question were also nonresidents of California, so the jurisdictional questions boiled down to whether California can constitutionally provide a forum for non-resident plaintiffs to sue a non-resident defendants.

This is quite apart from the practical question of why, given the severe funding crisis everyone recognizes as facing the California judiciary, California taxpayers should be burdened by thousands (or more) of suits by non-residents against non-residents.

Continue Reading Breaking News – California High Court Expands “Specific” Personal Jurisdiction To Recreate “Exorbitant” Personal Jurisdiction Rejected by Daimler v. Bauman

You wouldn’t be the first to notice that some of our posts say more about television programs – and certainly with more gusto – than about the law.  We could make the case that pop culture and the law are related, and that familiarity with the former can make one a better advocate when engaged in the latter.  We could even cite an article on the value of pop culture that was written by an in-house lawyer who might be the smartest person we know.  But let’s not perpetrate a fraud.  Truth be told, it’s flat-out easier to tackle tv than preemption.  Would you rather binge watch Orange is the New Black or the latest judicial jibberings on the parallel violation exception?  Especially in these lingering dog days of Summer, not much in the law seems dramatic or even mildly entertaining.  To be sure, not so long ago the Summer was also a wasteland for television.  The good stuff concluded in the Spring.  Summer was strictly for repeats.  Under the old model, after fine offerings such as Game of Thrones and The Americans wrapped up before Memorial Day, there would be nothing worth watching until the Fall season, when a couple of decent shows might temporarily distract you from the decline of the West (by which we mean the American League West, the AFC West, and the overall culture of the Enlightenment).  But things have changed when it comes to programming.  Television comes through whilst the law remains in its mid-year torpor.  Of a sudden, Summer tv offers a bounty for couch potatoes seeking an escape from the inferno.  So hang up that seersucker suit, pour out a Pimm’s, and feast your eyes on these tv treasures:

Stranger Things (Netflix) – We love the 80s.  That was when we entered law school and, more importantly, exited law school.  A decade that starts with the eruption of Mt. St. Helens and ends with the collapse of the Berlin Wall, and that introduced Seinfeld and The Simpsons in-between, is special.  Stranger Things is a love letter to the 80s.  It is a Spielbergian, Stephen King-ian mash up of horror, sci-fi, government conspiracy, and teen-agers coming of age. Stranger Things also supplies a great role for Winona Ryder, who first grabbed our eyes in Heathers (1988). You know how at the end of a Netflix episode a clock starts counting down in the corner, and you have to decide either to exit or let the next episode start?  With Stranger Things, we always let the next episode take over the screen, and let all the next episodes take over our day.  Could.  Not.  Stop.  Watching.

Mr. Robot (USA) – Maybe this bold show is undergoing something of a sophomore slump, but the episode that mimics 90s sitcoms (e.g., Full House, Family Matters) may have been the best hour of tv since Cersei burned down the town and the Khaleesi set sail with a dragon escort.  If you watch this show, you might actually have something substantive to say to the techno-geeks who patrol your office.  And they might have something to say to you besides, “Have you tried rebooting?”

The Night Of (HBO) – One always has high expectations for any show in the 9 pm Sunday night slot on HBO, and The Night Of does not disappoint. It is based on a British show called Criminal Justice.  One of the writers for the American version is Richard Price, who has penned some fine novels (Lush Life) and some of the best episodes of The Wire.  The first couple chapters of The Night Of were blisteringly suspenseful, reminding us how modern technology spies on us, but how there are still tragedies that manage to evade the cameras and our understanding.  Then the show settled into a Law & Order-type procedural, complete with the requisite interview of someone at their workplace.  (Comedian John Mulaney does a bit about a guy calmly loading crates onto a truck while answering questions about a grisly murder.  “Tony Ramirez?  Yeah, I remember him.  Worked on Tuesdays, I think.”  Keeps lifting crates.  A detective puts a picture under the witness’s nose.  The witness hardly pauses as he flings a crate into the trailer.  “No, I don’t recognize him”  Picks up another crate.)   The workplace interview in The Night Of involved a hearse driver, so the creepiness level was turned up to 11.  The most recent entry of The Night Of featured a cross-examination of a defense expert by the prosecutor.   The expert and prosecutor clearly have been locking horns for many years.  By now, they know each other’s moves.  They even seem to enjoy each other’s company.  The wry back-and-forth reminded us of some mini-battles we have had with certain plaintiff experts we have deposed repeatedly.  Of course, in our case there was no murder — except, you know, for the expert’s occasional murder of the truth.

Watch these shows and you will thank us.

What’s that?  You came to this blog to learn a little something about the law, not television?  Okay, if you insist.  But how about if we split the difference, and discuss a case about television?  To be precise, it is a case about televisions, in the plural.  In Oliver v. Funai Corp., 2015 WL 930541 (D. N.J. Dec. 21, 2015), the plaintiffs claimed that the defendants sold them defective televisions.  The defect consisted in certain allegedly faulty components.  When those components went bad, the televisions would  “stop displaying a picture and sound.”  That does, indeed, seem like a problem.  The plaintiffs alleged that the televisions in question typically failed outside of the stated one-year warranty period and ninety-day warranty period for labor, leaving consumers with little reprieve.  The legal claims included fraudulent concealment and the like.  There were two plaintiffs, one in Massachusetts and one in Arizona.  One of the plaintiffs alleged that he purchased his television in September of 2012, and that the same television failed in January 2014, after only 190 hours of usage.  At this point, and not just because we are a crotchety defense hack, we grew suspicious of that plaintiff.  Four months of tv viewing, totaling only 190 hours?  That’s just a little more than an hour and a half a day.  Who watches so little tv?    Most people would burn through 190 hours just during the NFL playoffs.  Was this person confining their viewing to PBS specials on How Turtles Do Calculus, or the Cleveland Symphony’s production of an opera based on Kafka’s Metamorphosis, “Roach!”  Surely there is an issue in this case of credibility and/or limitation of damages.

What does any of this have to do with drug or device law?  The Oliver case involves one issue we have addressed a lot recently, personal jurisdiction, and one we hardly ever see, which is whether internet postings constitute information that can be attributed to a corporate defendant.

Personal Jurisdiction

The defendants in Oliver were (1) Funai Corp., which is incorporated and has its principal place of business in New Jersey, and (2) its parent, Funai Electric, a company incorporated and headquartered in Japan.   Was there personal jurisdiction over the Japanese parent company?  As most of our readers know by now, personal jurisdiction consist of both general jurisdiction and specific jurisdiction.  With general jurisdiction, a company can be sued for anything.  With specific jurisdiction, a company can be sued only for its conduct specifically in and targeted to that particular jurisdiction.  Under the Supreme Court’s decision in Bauman, general jurisdiction extends only to companies that are essentially “at home” in that jurisdiction, and that at-home-ness applies to place of incorporation, principal place of business, and extremely rare exceptions, such as temporary relocation of a company during war time.  The Oliver court easily decided that the plaintiffs could not show general jurisdiction under the paradigmatic examples laid out in Bauman.  In support of their general jurisdiction argument, the plaintiffs chiefly relied upon the fact that Funai Electric allegedly “funnels its televisions through the State of New Jersey.”  But it is well-settled by the Supreme Court that while “[f]low of a manufacturer’s products into a forum … may bolster an affiliation germane to specific jurisdiction… ties serving to bolster the exercise of specific jurisdiction do not warrant a determination that, based on those ties, the forum has general jurisdiction over a defendant.”

Continue Reading Television, Personal Jurisdiction, and Whether Corporate Knowledge Can be Imputed from Internet Drivel