Argument evaluation: Due course of, causation and stopping factors for a 1945 doctrine in a 2020 world

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Argument analysis: Due process, causation and stopping points for a 1945 doctrine in a 2020 world

Lawyers and judges examined competing standards of causality and competing understandings of due process on Wednesday during a hearing in Ford v Montana Eighth Judicial District (consolidated with Ford v Bandemer). The cases are a matter of personal jurisdiction: whether people injured in Ford vehicle accidents can sue Ford in the states where the accidents occurred (Montana and Minnesota) if Ford regularly sells cars in those states , shipped and marketed, but manufactures and markets the specific cars that were involved in the accidents in other states.


Sean Marotta for Ford and Deepak Gupta for plaintiffs call for arguments (Art Lien)

Arguments for Ford

Sean Marotta argued for Ford. He suggested that the company's contacts with the state must be the "immediate cause" of the accident and the injuries sued in order for a state court to exercise personal jurisdiction over Ford. The case is governed by the 2017 court ruling in Bristol-Myers Squibb v Superior Court of California that the sale of a similar product in one state cannot create a basis for jurisdiction in that state. In BMS, the plaintiffs were Ohioans suing in California, while in this case the plaintiffs are citizens of the forum states (Montana and Minnesota). However, according to Walden v Fiore, the plaintiff's home state is irrelevant. Personal jurisdiction, Marotta reminded the court, protects defendants, not plaintiffs.

Chief Justice John Roberts. The chief judge proposed a hypothesis that an automaker was promoting cars in all states and the ads encouraged the plaintiff to buy the car, including by highlighting the safety of the car. Marotta said advertising was in the causal chain but too weakened to be the immediate cause of the accident. A plaintiff “tells the story” of an accident, and only the contacts that are part of the story – that are relevant to the content of the story – matter to the jurisdiction. The main cause is the "directness" of the connections.

Justice Clarence Thomas. Thomas wondered about the lineage of the immediate cause test and its connection to the original understanding of due process, describing a “long journey” from court precedent to constitutional significance. Marotta replied that the precedent recognized the fundamental case of personal jurisdiction, International Shoe v Washington, as being consistent with the original meaning of due process and focused on the defendant's conduct and the claims arising from that conduct. Thomas proposed a hypothetical Tennessee citizen buying a car in Roanoke, Virginia based on Internet advertisements. Marotta said whether a court in Tennessee had jurisdiction would depend on whether the defendant's actions drew the plaintiff to Roanoke or whether the plaintiff found Roanoke himself.

Judge Stephen Breyer. Breyer suggested that fairness concerns underlie personal jurisdiction and asked how unfair it is to defend in Montana and Minnesota, since Ford sells in both states and there is a likelihood of potential litigation being defended there. But Ford doesn't expect to defend itself there against the specific products involved in those accidents, Marotta said. In addition, the court decision must take into account not only a national or multinational company like Ford, but also smaller manufacturers who would be burdened by litigation in foreign courts.

Justice Samuel Alito. Marotta defined the immediate cause as "sufficiently direct cause". Alito wondered whether the difference to BMS is that in this case there is no connection between the plaintiffs and the forum state, whereas in these cases the plaintiffs live in the forum states. Marotta said Montana and Minnesota had no relevant links to Ford's behavior since Ford designed, manufactured and sold the cars in question outside of the forum states.

Justice Sonia Sotomayor. Sotomayor questioned whether the result of Ford's reasoning is that it can only sue in its home state. Marotta said there could be an immediate reason linking Ford to the state where the car was built or where there was an important and material sale. Sotomayor also wondered about a hypothetical defect in an airbag that had been replaced by a dealer, asking whether the replacement airbag or the old sensor had caused the accident. Marotta replied that the repair would create a state of repair jurisdiction.

Justice Elena Kagan. Kagan asked whether Ford actually required a "first sale rule" under which the manufacturer had made the first sale. Marotta insisted that his test was not so limited, but extended to any location with sufficient connection to the immediate cause. Marotta refused Kagan's attempt to differentiate Walden because the accused had no contact with the forum state. BMS started from Walden's premise that the violation was insufficient in the forum state and then found no jurisdiction as the BMS plaintiffs had not even suffered an injury in the forum.

Justice Neil Gorsuch. Gorsuch followed Thomas to the original understanding of due process – whether that understanding means the concept of "fair play", the "law of the land" or something else. Marotta argued that the point of specific personal jurisdiction is not to hold defendants liable for their actions in any other state – here plaintiffs would have suffered the same injuries in the same states if Ford had done nothing in Montana or Minnesota.

Justice Brett Kavanaugh. Kavanaugh wondered why Ford wouldn't try these cases in Montana and Minnesota because he is litigating (or anticipating) other cases there. Marotta discussed the issues of dealing with judges and courts in another forum, then returned to small manufacturers who, unlike Ford, may never litigate in Montana or Minnesota.

Arguments for Plaintiffs

Deepak Gupta spoke out on behalf of the plaintiffs, although technical difficulties with his telephone connection required a break of several minutes. When reconnecting, Roberts quipped, "I suppose you didn't choose to rest on your panties." A comment that would have made people laugh in personal arguments.

Gupta argued that jurisdiction was justified on two grounds: Ford's product injured plaintiffs in the forum states, and Ford deliberately cultivated the markets for these products in these forum states through state activities. Additionally, jurisdiction rules should be simple, while Ford's proposed immediate cause rule is elusive, forcing plaintiffs to follow the commercial trail of individual products and turning personal jurisdiction into a game.

Chief Justice John Roberts. Roberts was concerned about a hypothetical local Maine manufacturer promoting their products over the Internet and whether they might be sued in any state. Gupta said it would depend on whether sales to forum states were isolated or whether the manufacturer actually "injected" its product into the forum states, for example through targeted advertising. However, this went to the first step of personal responsibility analysis – a concept known as "targeted use" through targeted cultivation of the market – which was accepted in this case. Relatives remained a special issue.

Justice Clarence Thomas. Thomas asked what the relationship between the defendant and the forum state must be. Gupta said it starts where BMS left off – where the claim is "linked" to forum status because there have been some incidents there. He said the kinship involves two questions – the state's interest in the controversy and whether the defendant has made some "mutual legal obligations" through his state contacts. That's what happens, Gupta said, when a defendant like Ford sells the same product in the state and that product hurts someone.

Judge Stephen Breyer. Breyer wondered how much business a defendant needs to do in a state, how similar the in-state product needs to be to the out-of-state product, and how much of the product needs to be sold in forum state. Gupta said the court should ask if the plaintiff was injured in forum state, and then determine whether the product in question has the same brand, year, or model as the product sold in the state. He stressed that many cases, including this one, involve mass-produced products with no differences between state borders. And companies could choose which products to sell in which states.

Justice Samuel Alito. Alito took up this line and asked for bespoke or limited products that Gupta said had to be targeted (a problem with targeted use). Alito wondered if the entire personal jurisdiction mechanism was out of date, applying the standards of 1945 (the year of the international shoe) and fair play concepts of 1945 to a completely different world of the internet in 2020. He asked if Gupta had a bigger solution to the problem. Gupta acknowledged that the doctrine evolved in the early to mid-20th century as markets changed, but then entered a period of relative stasis. While acknowledging this stasis, Gupta referred to Breyer's consensus opinion in J. McIntyre Machinery against Nicastro (whom Alito had joined) and urged the court not to write general rules or paint with too broad a brush.

Justice Sonia Sotomayor. As with Marotta, Sotomayor set up a case about a defective airbag in a particular car model. She wondered if there would be personal jurisdiction if the defendant did not sell this model in the state but instead sold other models with the same airbag in the state. Gupta said defendants can choose which products to sell in different states, but it must be "objectively apparent" to everyone that the products are different within the state and outside the state. The test focuses on the finished product and not on what is in the “bowels” of the car.

Justice Elena Kagan. Kagan inquired about a hypothetical specialty pickup truck that was only sold in the southeast and brought to Washington state by the plaintiff. Gupta said that would fail his suggested test. But it might be different if the specialty truck were sold primarily in the Southeast, but also in small quantities through a single dealer in Washington, he said. Kagan suggested that personal jurisdiction is about both federalism and fairness. Gupta agreed, saying that given states' interest in protecting their citizens, federalism is beneficial to plaintiffs, which is why 40 states tabled an amicus letter in support of plaintiffs.

Justice Neil Gorsuch. Gorsuch wondered about the same problem as Sotomayor – whether the focus is on the entire product or on components. Gupta reiterated that it must be the objectively identifiable end product and declined a test that would turn on components. He also opposed the suggestion that his test blurs the line between specific and general jurisdiction – nothing could be more specific than the location of the infringement and the sale of the specific brand, model, and year of the product in the state. Gorsuch said although Gupta declined a focus on components, the lawyer might not be able to do so in the next case.

Justice Brett Kavanaugh. Kavanaugh wanted Gupta to separate the purposeful claim from kinship and ensure that the establishment of the former does not fix the latter if the violation occurs in forum state. Gupta disagreed and said that the court should first examine what the defendant did to target the market (targeted recourse), then whether the damage occurred in the forum state and whether the plaintiff's claim fell within the scope of the legal obligations to which the defendant submitted in the forum (kinship).

Ford's counter-argument

Marotta made three points for rebuttal. First, Ford's proposed immediate cause test is based on common law which is easy to apply in court and applicable to all types of cases. Second, the defendant's sale of a sufficient quantity of the same product in Forum State together with the plaintiff's presence in that State is not sufficient to establish jurisdiction under BMS. After all, a state's interest in the case cannot provide the basis for jurisdiction. Even if the state has a keen interest in the case and the defendant is not inconvenienced by litigation, the “due process clause acting as an instrument of intergovernmental federalism” can dispel jurisdiction of the state courts.

Posted in Ford Motor Company v Montana Eighth Judicial District Court, Ford Motor Company v Bandemer, Featured, Merits Cases

Recommended citation:
Howard M. Wasserman,
Argument analysis: due process, causes and breakpoints for a doctrine of 1945 in a world of 2020,
SCOTUSblog (October 9, 2020, 12:57 p.m.),
https://www.scotusblog.com/2020/10/argument-analysis-due-process-causation-and-stopping-points-for-a-1945-doctrine-in-a-2020-world/