Ninth Circuit Takes a Wrecking Ball to Internet Personal Jurisdiction Law

Summary

Let’s start with a tiny piece of good news. The majority says: “The parties agree among themselves that we need not develop an internet-specific standard for personal jurisdiction. We also agree.” No need for Internet exceptionalist rules. Yay! With that out of the way, bring on the tissues. Briskin made a purchase at an online retailer, IABMFG. Shopify processed the order fo0r IABMFG. Along the way, Shopify downloaded javascript to Briskin’s computer to enable the purchase and placed a cookie on Briskin’s computer when Briskin first visited the storefront. Briskin claims that Shopify aggregates Briskin’s data into its consumer database for nefarious purposes. Briskin sued Shopify for a variety of privacy violations in California. Shopify said California courts lack personal jurisdiction over it. (Shopify is a Canadian company with US headquarters in New York and ties to Delaware). The district court agreed with Shopify, as did a three-judge panel of the Ninth Circuit. On further appeal, the Ninth Circuit reverses en banc, concluding that Briskin established personal jurisdiction over Shopify in California. The en banc court issues a total of four opinions, and collectively they show Shopify was never close. None of the judges would have supported Shopify’s position. * * * The Ninth Circuit’s framework for establishing specific personal jurisdiction involves three elements: purposeful availment in California; the claim arises from those contacts; and personal jurisdiction is reasonable. The first factor is sometimes further subdivided into three subfactors reflecting the Calder v. Jones “Effects Test.” Purposeful availment can occur if a “defendant (1) commit[s] an intentional act, that is (2) expressly aimed at the forum state, and (3) which causes harm that the defendant knows will be suffered in the forum state.” This case focuses on the second subfactor, i.e., did Shopify “expressly aim” an intentional act at California through its interactions with Briskin? The...