When we started seeing a smattering of cases over long-term contraceptive devices used in connection with tubal ligation surgery, we were not surprised. Plaintiff lawyers have targeted a wide range of contraceptive drugs and devices for decades. Commentators beyond this Blog have described how this bent affects contraceptive choice and public health. When we saw
Last year we wrote a post about Froman v. Coopersurgical, Inc., 2022 US Dist LEXIS 120725, *2-3 (N.D.AL Jul. 8, 2022), calling it trifecta Tuesday because the case was dismissed on the grounds of personal jurisdiction, pleadings deficiencies, and preemption. Today’s case involves the same product, the same defendants, and the same conclusions on
The Supreme Court’s latest foray into the constitutional thicket of personal jurisdiction, Mallory v. Norfolk Southern Railway, No. 21-1168 – to decide whether states can force corporations to “consent” to general personal jurisdiction via foreign corporation registration statutes − was orally argued on November 8, 2022. The transcript is available here. Since Bexis has been involved (as amicus curiae) in Mallory since the trial court’s favorable decision (which he made sure was on Westlaw and Lexis) was first appealed in Pennsylvania, we thought we’d review the highlights of the oral argument.Continue Reading Mallory Oral Argument – Litigation Tourists’ Last Stand?
Once again this week we turn to the aridities of personal jurisdiction. Or is that perhaps a bit … harsh? After all, last week personal jurisdiction had a rare moment in the public spotlight as a result of SCOTUS oral arguments in a case involving the law of Pennsylvania — our usually-fair-but-not-so-much-in-this-case Commonwealth. The issue was whether Pennsylvania could condition a corporation’s right to do business in the Keystone State on that corporation’s consent to personal jurisdiction in our overly exciting court system. We’ve written about this consent theory before, and we previewed the SCOTUS case here. If Pennsylvania and other jurisdictions can get away with it, then the Bauman and BMS SCOTUS personal jurisdiction decisions become something very near to dead letters. It seems that several of the Justices last week thought as much, as their questions evinced deep skepticism about this bogus jurisdiction-via-consent scheme. You’ve heard of long-arm jurisdiction statutes, right? These are strong-arm jurisdiction statutes.
But predicting SCOTUS rulings is a sucker’s game.
Meanwhile, press coverage of the SCOTUS arguments was predictably daft. Some commentators bemoaned how rejection by SCOTUS of jurisdictional consent via coercive business registration statutes might make it harder to sue corporations. That is utterly wrong. One can sue the corporation where it is incorporated or headquartered, or where the the events at issue happened. What is unfair about that? The only real losers would be plaintiff lawyers who apparently think there is a need and a right to sue companies where the plaintiff lawyers are located. Nothing propinks like propinquity. But no one should shed any tears for lazy and/or cynical forum shopping.
Today’s case, Armstrong v. Atrium Med. Corp., 2022 U.S. Dist. LEXIS 195231 (E.D. Wash. Oct. 26, 2022), involves a more quotidian personal jurisdiction issue: can a product liability plaintiff drag a foreign parent company into court? We’ve written about this issue before (here, for example). Including a corporate parent in a lawsuit can be a nice bit of leverage for a plaintiff. It is an annoyance. It is unnecessary. Fortunately, courts usually do not smile upon it.
Continue Reading E.D. Wash. Finds No Personal Jurisdiction Over Swedish Parent Company
One of the stock P-side responses, in the post-Bauman personal jurisdiction environment, to a jurisdictionally-based motion to dismiss is to seek “jurisdictional discovery” – the more onerous the better – in an attempt both to slow the often-inevitable dismissal and also to drive up the nuisance value of the case. That’s the main reason that on our personal jurisdiction cheat sheet we note when jurisdictional discovery is denied.Continue Reading Jurisdictional Discovery Is Not Bigger in Texas
We are trying very hard not to bore everyone silly with endless discussion of our puppy-to-be, almost certainly interesting only to us. But we are failing. So, briefly, we comment that we met the whole spectacular litter last week – eight gorgeous butterballs. Five are white, and three are now black but will probably end
Longtime readers of the Blog know we have a soft spot in our hearts for Nebraska. The state motto—“Equality Before the Law”—is both elegant and meaningful, and we should also call it progressive, given that it dates back to 1867—one year before ratification of the Fourteenth Amendment. We have also previously shared our affection for
This post is from the non-Dechert side of the blog.
After more than a month away at trial, we probably should not have picked a case that hit so close to home, so to speak. Spear v. Atrium Medical Corp., — F. Supp. 3d –, 2022 WL 3357485 (E.D. Pa. Aug. 12, 2022), is
Whaley v. Merck & Co., 2022 WL 1153151 (S.D. Cal. April 12, 2022), is an ugly example of overly grasping personal jurisdiction permitted in the service of facilitating an even worse overreach by a state’s substantive law. We’ve repeatedly criticized the substantive theory – innovator liability – because (among other things) it exposes manufacturers to liability for claimed defects in competing generic drugs from which the defendants received no benefit (quite the opposite), and did not control what their competitors did. Indeed, innovator liability strays so far from traditional product liability that it creates personal jurisdictional problems – since the target defendant often has no jurisdictional contacts whatever with the forum state, since it didn’t even sell the product that allegedly caused (very attenuated) harm.Continue Reading California Court Overreaches on Personal Jurisdiction
California’s courts have never met a case they did not like. Or, more precisely, they have never met a case over which they would not exercise jurisdiction if arguably supported by the facts, and even when not supported by the facts. We are exaggerating, of course, but not by much. You will recall that the