Courthouse Steps Decision Teleforum: Ford Motor Company v. Montana Eighth Judicial Dist. Court

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of Practice Group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Evelyn Hildebrand:  Welcome to The Federalist Society's Teleforum conference call. This afternoon, April 7, we discuss the Supreme Court's decision in Ford Motor Company v. Montana Eighth Judicial District Court. My name is Evelyn Hildebrand, and I'm an Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

Today, we are fortunate to have with us Karen Harned, Executive Director at the National Federation of Independent Business Small Business Legal Center, and Jamie A. Santos, Partner at Goodwin Procter LLP.

 

After our speakers give their opening remarks, we will turn to you, the audience, for questions. So be thinking of those as we go along and have them in mind for when we get to that portion of the call. With that, thank you for being with us today. Jaime, the floor is yours.

 

Jaime A. Santos:  Thank you so much. As Evelyn mentioned, I'm Jaime Santos, and I am a Partner at Goodwin Supreme Court and Appellate Litigation Practice. And I am really happy to be chatting with you about this case again today, Karen.

 

Karen Harned:  Yes.

 

Jaime A. Santos:  So I think what we're going to do -- sorry. I think what we're going do first is I'm going to give a little background about the case, just as a reminder for those of us who maybe haven't thought about the case since October, when it was argued. And then Karen's going to talk a little bit about Justice Kagan's opinion and the two concurrences. And then we're going to discuss for a little while before we take questions at the end.

 

      So let's go ahead and jump right in. I'll start with giving you the condensed version of the facts. So this is a case involving two individual plaintiffs and Ford Motor Company, which is the defendant in both cases. And because this is a case about personal jurisdiction, I'm going to give you some locations because those are relevant to the issues in the case.

 

      So Ford is headquartered in Michigan. It is incorporated in Delaware, and in these two cases, it was sued in two states, Montana and Minnesota. And both of those cases involved people who were claiming injuries from crashes that happened in those states. So a resident of Montana and a resident of Minnesota were injured in car accidents that happened in Montana and Minnesota.

 

      And Ford didn't assemble or manufacture either of the plaintiffs' vehicles in those states. And the plaintiffs didn't buy their vehicles in those states either. Instead, what happened was Ford, many years ago—I think in one instance, it was 20-some years ago—had sold the cars to dealerships in other states. And then the cars ended up, after a decade or so, in Montana and Minnesota, after a number of private used car sales that didn't involve Ford.

 

      However, Ford did do substantial business in both of those states. It advertised, sold, and serviced other cars that the plaintiffs didn't purchase there but that were similar or, in at least one of the instances, was the same make and model of the cars that each of the plaintiffs had.

 

      And just for a little bit of background on the kind of tests that -- the question that was at issue in the case, this was about specific personal jurisdiction, which is a kind of jurisdiction that can apply even -- that it can exist even if someone isn't a resident, isn't headquartered in a particular state, doesn't have their principal place of business in that state.

 

      And for specific personal jurisdiction to apply, the defendant has to take some act by which it purposely availed itself of the privilege of doing business within the state or it has to purposely direct its activities toward the state. And then the plaintiff's claims must arise out of or relate to the defendant's contact within that state.

 

      And the question presented by Ford was whether that phrase "arise out of or relate to" requires a causal connection between the defendant's activities in the forum and the specific plaintiff's lawsuit. And let me just also summarize the position that each of the parties took.

 

      So Ford took the position that specific personal jurisdiction can exist only if the defendant's conduct that occurred in or is targeted at the forum actually gave rise to that specific plaintiff's claim, that it caused, in some way, the specific plaintiff's claim. And so Ford said that if a plaintiff is suing for a manufacturing defect in Montana, it's not enough that Ford markets and sells other Ford vehicles in Montana if the plaintiff's car was not manufactured there, was not designed there, and was not sold by Ford there, that there has to be that causal connection between Ford's forum-related conduct and that specific plaintiff's claim.

 

      The plaintiffs, on the other hand, argued that if Ford cultivates a market in a particular forum for a particular product, say a Crown Victoria, and there's an injury that involved that product in that market, then Ford is subject to jurisdiction there. And it doesn't matter whether the injury that happened in that state was somehow caused by cultivating the market there, and it doesn't matter how the product got to that state. All that matters is that Ford creates the market, cultivates the market, and a product that is similar to or the same as the products that Ford sells there caused an injury there.

 

      So, Karen, why don't you tell us what Justice Kagan had to say about this.

 

Karen Harned:  Yes. Thanks, and it's great to be back with you again, Jaime.

 

      So Justice Kagan went through a lot of the history -- well, she went through the history of the case, obviously, but then also went through a lot of the decisions relating to jurisdiction starting with International Shoe and then ended that saying characterizing that decision as holding that a court's authority depends on the defendant's having contacts in the forum state, that the maintenance of the suit is reasonable and the contacts of our federalist system of government and does not offend traditional notions of fair play and substantial justice.

 

      Really, a lot of her opinion does focus on this whole business of if you're doing enough business in a state that -- if you're active enough in a state, then you need to know that you're going to potentially be sued in that state, basically. And with regards to this, she went on with Bristol Meyers saying that that gave more context where the Court focused in that case on the nature and extent of the defendant's relationship in the forum state and that the focus in Bristol Meyers regarded personal jurisdiction which is general, which is all purpose jurisdiction, and then specifics that sometimes case linked and cited Goodyear for the specific jurisdiction.

 

      But basically, she said that a state could exercise -- a state court could have general jurisdiction if the defendant is pretty much home with the state -- feeling at home with the state. And that specific jurisdiction is going to be less intimately connected, but the contacts for that are going need to be purposeful availment and it goes into the Burger King decision there and the Hanson decision, which also held that the defendant must have some act by which it purposely avails itself of the privilege of conducting activities in the state.

 

      So there has been a lot of conversation in the oral arguments with regards to basically okay, you've got two plaintiffs, neither of whom bought their car in this state. They were injured in this state, so there was that contact, but they didn't -- they bought it from third parties, so it wasn't even from -- it was the friend of a friend type of contract, at least in one case. And they were in North Dakota and Washington State, I believe.

 

      But what she really focused on was this whole issue of Ford's understanding that it should not have been shocked that it was sued in Minnesota and Montana. And the reason it shouldn't be shocked that is was sued there is because regardless of where its cars were bought, it aggressively advertises in that market and it's not -- I don't think that's a new test. I don't think it was just advertising. Also, it does all sorts of repair services. It makes parts for repairs that go into those states. It is encouraging those citizens to buy their car and know that if they buy their car, wherever they buy a Ford, that that car is going to be able to be maintained and serve them well in whatever state they ultimately live in.

 

      So I really think that was her gloss, if you will. People are saying on how you decide if you're connected enough to the state since she did reject what a lot of people had thought coming in were some of the more hard-lined tests like headquartered, manufactured, produced, those types -- sold. All of those tests weren't met here. The only test, really, or only connection was that of the defendant's activities.

 

      And so she also went through and distinguished a lot of the case law that had come before in these instances. She quoted Daimler saying that our most common formulation of the rule demands that the suit arise out of or relate to the defendant's contacts with the forum. And then once she goes through that, she went to this hypothetical that has been used in a Volkswagen case and basically that hypothetical said that where the car was designed, manufactured --

 

Jaime A. Santos:  Just go on.

 

Karen Harned:  But, anyway, the long story short was because they not only advertised there but services the vehicles and very much were in that market, it was not a surprise -- it should not have been a surprise to Ford that they would've been sued for an injury caused by one of their cars in those states. I think that's really pretty much the bottom line there. I apologize for the confusion.

 

      And then there were two concurrences, and I don't know -- actually, before I move on to the concurrences, I'd actually go to Jaime because she practices in this area more and I want to make sure I caught everything that she thought was the most relevant of why she was saying that jurisdiction was allowed in this case now.

 

Jaime A. Santos:  Yeah. I think that you definitely summarized her holding well. I think that Justice Kagan basically adopted the rule that the plaintiffs had offered. And I think her opinion really tried to ground the decision in fairness concerns. And I think, actually, this is something you're probably about to talk in a minute, but Justice Alito's concurrence was similar in that way and there's this one sentence that I think captures both -- that really captures Justice Kagan's opinion also.

 

      He says, "Can anyone seriously argue that requiring Ford to litigate these cases in Minnesota and Montana would be fundamentally unfair?" And I think it was just one of the situations where the justices were kind of like, oh, come on. Ford is going to be fine. It's a large company. It's advertising everywhere. It's not much of a burden. And so no matter what our prior cases have said, this would be a bridge too far.

 

      And I think one really notable thing is that it carves out, in a footnote, it expressly carves out any internet sales cases.

 

Karen Harned:  Right.

 

Jaime A. Santos:  And it says those cases are not resolved here, and it's even mentioned that hypothetical that had been offered by the Chief Justice at oral argument involving a retired guy in Maine who carves decoys and sells them on Pinterest or something or Etsy. And I laughed at that because the Chief has a house in Maine, so this was very much in his mind, I'm sure, while he's sitting there. It kind of made me wonder whether he's sitting there carving decoy ducks in his free time during the summer but probably not.

 

      But it is interesting that the Court was so careful to carve out anything internet-y, which is a lovely thing to do, but this case is going to be cited. I don't know that the Court can actually realistically just say oh, no, no, no, none of this implicates anything for internet sales as much as it thinks it can do so by a footnote that lawyers around the country are going to have to look to this case in all kinds of contexts.

 

And it's a little strange that this seems so really cabin to the context of a very large motor company with nationwide sales, with huge sales in every single state. And I do wonder how instructive it will be going forward and how much lawyers for it on both sides of the "v" in a case caption will have to figure out how they can stretch to fall within the decision or outside of the decision.

 

Karen Harned:  Yeah. I would absolutely agree. And I do think that Ford thing played -- well, two points on that. I do think the fact that Ford's a big company played heavily in this because I think even at some point in her opinion, Kagan noted -- she goes, or somebody noted, in a concurrence that it was going to be a much bigger deal for those defendants to go to the states in which they bought the cars than for Ford to litigate in the states in which the defendants got injured.

 

      And as a result -- well, anyway, that it was going to be -- and the result would probably be the same anyway, basically. It's kind of the impression I was getting from that conversation. And I do think that the internet carve out was important especially because during oral argument, I felt like there was quite a bit of time spent on that. And I agree with you, Jaime, that I don't know how that is going to work. And I feel like that's --

 

So when you get to the concurrences, that's really, I think, the biggest issue because this was 8-0 in the judgment, but Alito just felt like Kagan was messing with the past too much and making it unduly complicated, that basically he thought that Ford would lose under International Shoe as it was. But she didn't need to do anymore of the relates to business and all this stuff that she does to try to, I don't know, put what some observers have said is the new gloss over the case law on jurisdiction.

 

      And then Gorsuch goes to what I think is probably partly the internet issue too because as -- well, I guess a lot of them have been lower court judges, but he's just like this is going to be confusing for the courts below. He also said the he doesn't even -- he was questioning the International Shoe as good law anymore in light of our new world, I guess, is basically the thing. And he was just, at the end of his concurrence, inviting litigants to try to basically help them to find this decision more, I feel like.

 

      And so that was interesting. And Barrett, it was 8-0 because Barrett didn’t participate but the bottom line is --

 

Jaime A. Santos:  Yeah, and let me just -- I was just going to add a couple things onto what you just said. I do think Justice Gorsuch's concurrence is absolutely fascinating because what it seems like he wants, he is totally willing to do, is completely throw away specific personal jurisdiction as a concept for a corporation. He seemed totally onboard with that saying listen, if a company-- if there is such a thing called tag jurisdiction for individuals.

 

So if, for example, I live in Maryland, if I go to Virginia to get some really good tea in Downtown Alexandria, and someone sees me and they want to sue me there, you could serve me there, I could be subject to personal jurisdiction there. And he said why should it be any different when a company is basically stepping foot in every state or they're selling products?

 

      And I'm guessing that the plaintiff's bar thought that the clouds were opening up and the angels were coming down from heaven because this is a radical view. I think Justice Kagan was not particularly impressed with the idea that we should just throw away the last 100 years of doctrine because now the internet exists, but it was fascinating. I think that's very Justice Gorsuch-y, like, let's just throw away those old tests and let's make a new one that seems better.

 

      And then I think that both he, and you're right, Justice Alito were really worried about what I think Justice Kagan tested and whether it creates a whole bunch of uncertainty because until this decision, there was this language that I mentioned earlier that the courts described or that the courts use to describe specific jurisdiction. So they say the defendant's forum related conducts have to arise out of or relate to the plaintiff's claims.

 

      And the Court had previously decided not to make clear whether arise out of or relate to really encompasses two different concepts, whether it's a true disjunctive like is arise out of, does that mean something different from relate to? Or whether it's what a grammarian might call a couplet, meaning you're just saying the same thing in two different ways and you're putting the word or before it like cases or controversies, if you said something like that, right, like you're just articulating the same exact concept in two different ways and it doesn't actually mean a different thing.

 

      And Justice Alito said I feel like, Justice Kagan, you just created this whole new universe of relate to without giving any guidance to litigants about what that means, and you didn't have to do that. You could have just decided this case under even the causal standard that Ford was talking about because there's probably enough there to suggest that there was some causal connection between Ford's contacts and the claims. And I think he's really worried about what the lower courts are going to do with this new standard.

 

      And I don't think that's crazy because I think if you look at Justice Kagan's opinion, the last paragraph in the opinion is sure to give heartburn to a whole bunch of people. The last paragraph says, "The connection between a plaintiff's claims and Ford's activities in these states or otherwise said the relationship between the defendant, the forum, and the litigation is close enough to support specific jurisdiction."

 

      And I will say close enough is never something that you really want to see in a Supreme Court opinion --

 

Karen Harned:  Right.

 

Jaime A. Santos:  -- because it covers all manner of sins from any side that argues any case will be saying well, close enough, that's the standard. It reminds me of good enough for government worth. We have to be able to do better than that and give better guidance to our courts. And I think that's what Justice Alito was really worried about.

 

Karen Harned:  Yes. And you know one thing that was also interesting in -- I cannot remember the name of the case but I think it was either last term or the term before, with Gorsuch on these product liability issues. This one was an asbestos case. It dealt with, I think, a ship or something but anyway, in that, he doesn't have a problem suggesting that all of years of case law in liability should just be rewritten and I don't -- I mean, I do find that a little bit disturbing because on the one hand, he is saying look Kagan, I think you're making this harder for people, litigants below, but on the other hand, what he's suggesting, I think, would make it equally hard. I don't know what you think, Jaime, but I feel like he also did that in that other case a couple years ago.

 

Jaime A. Santos:  Yeah. I mean, it definitely is a kind of quiet -- and if you listen to him at argument, it is often the case that parties will make the arguments based on Supreme Court precedent. And it is not at all unusual for Justice Gorsuch to say okay, I understand what you're saying about precedents, but how about you pretend we're a blank slate for a minute, what is the right result under the Constitution? And that is his classic go to.

 

And in some ways, it's really interesting and we should not lose sight of the fact that these tests that we're talking about are supposed to be tests dictated by the Constitution, right, because personal jurisdiction is a due process limitation on the ability of state courts to adjudicate and on the ability of plaintiffs to call defendants into court.

 

      So this whole thing is supposed to be about the Constitution. So I think it is important to have someone on the Court who's saying wait a minute, how does this have anything to do with the due process clause? And let's look at first principles.

 

      On the other hand, I am also disturbed, as you are, by the proposition that he's just willing to throw away many, many years of precedents and in part because parties and litigants and lawyers rely on precedent and in part because I find that approach to be a bit, I don't know what the best word is, but a bit egotistical, I would say.

 

      You have made it onto the courts and are convinced that you have -- you know better than the last 80 years of justices who have sat right there before you, so it is for a fairly junior justice, it's an interesting approach, I'll say that.

 

Karen Harned:  Well, I think, with that, are there any other things, Jaime, you want to visit about before we move on to questions?

 

Jaime A. Santos:  Yeah. I think there's one thing I would mention, and maybe it's just elaborating a little bit on why the Court got to this decision and how the court maybe got to this decision because I do think that as a practical matter, a lot of people can look at this case like Justice Alito did and say can anyone seriously contend that it's not fair to make a company like Ford be liable in a suit where they sell vehicles?

 

      And to say that's totally reasonable, it's not objectionable, it's not personally offensive in any way. But I do think that this really is a sharp departure from the Court's recent specific jurisdiction cases. And it doesn't acknowledge that it is, which I find frustrating in some ways. And I do wonder what Justice Ginsburg, who had really authored and spearheaded a lot of the Court's jurisdiction cases, would have thought about this.

 

      And I guess to kind of dig down a little deeper into that, you have the last 20 to 30 years of specific jurisdiction cases that have really cabined this doctrine to situations where there's an incredibly close tie between the specific claims of a specific plaintiff and the specific actions by the specific defendant. And they're at that very granular level of specificity.

 

      And I think that approach is one that's totally open to criticism and a lot of people have criticized it, but that was the lay of the land before this case. And I think that Justice Kagan's opinion, especially it's so dismissive of Ford's argument, that it almost makes it seem like Ford was offering these crazy theories, when I think Ford's theories really were totally consistent with the letter, with all of the cases that had been come before.

 

      And my sense is that this decision was more in line with what the justices think and intangibly have -- the way they subjectively view personal jurisdiction but not in line with what they have said about it in judicial opinions. It's not in line with the words they had written on paper in prior cases.

 

      And I don't think I'm the only one who feels this way. I remember in the fall, I did this event with Erwin Chemerinsky who I believe was of the view that Ford's position was totally wrong but also it's completely justifiable and totally in line with the Court's precedents. And because what the Court's precedents had done is setup this very formalistic test, and Ford's position was not really much of an extension on that.

 

      And what I think happened is that the justices just thought oh, well, this is just a bridge too far. And rather than say you know what, we're changing approaches here because this is a bridge too far for us and this indicates to us that our prior precedents have really gone astray, and so we're going to do a course correction.

 

Instead, the opinion makes it seem as if all of those prior decisions said something different than they really did. And in particular, that BMS said something different than it did, that Justice Kagan's discussion of BMS basically said BMS is totally different because that case was about forum shopping. There's nothing in the opinion that says it was about forum shopping.

 

      And I think --

 

Karen Harned:  Okay. So that, I was going to ask you about that, Jaime, because I did think he distinguished that case really well, but I did not have the familiarity with the opinion. So I think that is an interesting -- I would like, yeah, if you would say a little bit more about that.

 

Jaime A. Santos:  Yeah. So I think this goes back to the -- it'll go back to maybe argument in BMS because the argument in BMS when Justice Kagan was questioning counsel for the defendant for Bristol-Meyers Squibb, who was from the same firm, Hogan Lovells, that argued Ford. She was worried, the entire argument, all the questions she asked, her concern was always forum shopping.

 

      And so when -- and she seemed really skeptical of the view -- oh, sorry. That was when she was, I think, questioning the plaintiff, whoever represented the plaintiff in that case. And I remember thinking when she joined the BMS majority, I remember thinking I bet that's because she thought this was a forum shopping case. And she was fine signing onto what BMS said, but her pet peeve was that the plaintiffs were forum shopping.

 

      It was a whole bunch of people from outside the state of California who bought Clavix outside of California and were injured by Clavix outside of California. And they went to California to file a lawsuit probably because the tort laws are pretty favorable there. And so -- but if you look at the opinion itself, the opinion does not really talk about forum shopping. The opinion really talks about the fact that the specific plaintiff's claims were not related to the defendants conduct in California. It was related to the defendant's conduct in those other states which is where BMS had sold those particular drugs.

 

And the Court said the fact that there are other plaintiffs who were sold drugs in California doesn't mean that people from Nebraska who did not purchase their drugs in California can sue there. And it was a really pretty formulistic opinion that said the specific plaintiff claims have to be related to the specific defendant's conducts and the specific drugs. It really has to a one for one matching.

 

      And so I think that for Justice Kagan to say BMS was about forum shopping -- I'm sure it was for her. I don't know that that's really consistent with the opinion itself. So that was, you know, that's interesting. It's interesting to me. And I do worry that this is one of those -- it makes personal jurisdiction more a matter of you know it when you see it, which is never a good standard for people who actually have to litigate these cases in Court.

 

Karen Harned:  Yeah, and I do think that yes. And I think that with the globalization of the economy and so many companies with multi-state presence, I think if you're representing an interstate business that just happens to have their product in another jurisdiction, maybe you're okay but maybe that also, who knows if that even survives summary judgment, for example. That's going to also be interesting to see how many cases are going to go further than they might have prior to this decision. I don't know if you've got that concern, Jaime, or not.

 

Jaime A. Santos:  Yeah. I think that under either side's test, there was going to be some challenges in administration. So for example, under Ford's test, you'd have to show a causal relationship, an approximate causal relationship between the defendant's conduct and the specific claim.

 

And in some instances, especially when you're talking about cars that were purchased 20 years ago, and God forbid, we get to airplanes and helicopters, which can last six years, being able to prove I bought my vehicle because I saw an advertisement in 2009 that told me -- even though I bought it used and I didn't buy it from Ford, I saw this advertisement when I was watching the Super Bowl that said Ford tough, and that made me think I can't afford a new one but I can go for a used one, and that's the one that caused a problem down the road. That's going to be really difficult to prove.

 

And on the other hand, under the plaintiff's test, I think -- I don't know what close enough means. And I also don't know when the kind of -- it just has to relate to -- like, how much does it have to relate to? Does it have to be the exact same product? Does it have to be the exact same model? What if you sell a product nationwide but you come out with a special edition for Maryland and someone in Kansas buys it, goes to visit their grandparents in Maryland, buys it, brings it into Kansas, finds out that this product, which is similar to stuff they can buy in Kansas but not the same, actually had come from a manufacturing plant in Maryland where there was some type of tainted dye that causes cancer. Is it close enough because similar products are sold in Kansas, or is it not?

 

      And I think that the one thing I feel for certain is that I hope the Court really likes personal jurisdiction cases because I am confident that Ford will not be the last one that it hears on this particular topic.

 

Karen Harned:  No. I definitely think you're right on that and -- but then I guess, taking the other side. While it's -- at the end of the day, that would have to be litigated. I would think that you would have more stronger arguments on that one for not to have the jurisdiction in another state because definitely you don't have what she called a truck load of contacts in that -- you've got enough differentiation that maybe. But that's a good hypo, and you're right. And the bottom line is the stuff's going to get litigated, going back to my original point, and this is really inviting a lot more litigation in this so that people can understand what the parameters are now in light of this position or this opinion, I mean.

 

Jaime A. Santos:  Yeah. Should we take some questions?

 

Karen Harned:  Sure.

 

Evelyn Hildebrand:  Great. We'll now move to our first caller in the queue.

 

Robert Fitzpatrick:  Hi, this is Bob Fitzpatrick from D.C. If I may, can I ask on -- I practice employment law. So -- and I'd like to ask a question that comes up all the time because we have D.C., Maryland, and Virginia. And let's assume there is no written choice of venue, no written choice of law clause that the employer has. I think my example probably recommends that there be one, but let's assume there isn't one.

 

      And the company is, let's say, headquartered in D.C., interviews and hires an employee in D.C., but that employee works—and let's do two examples because this is what we see with frequency—works here 100 percent in Maryland to a company headquartered and was hired in D.C. but works in Maryland and let's say is in sales and there's a commission dispute.

 

      And then the second example that we see with frequency is no, the person works some percentage of their time in Maryland, substantial, and some substantial percentage of their time in D.C. In the first example, after this decision, is there any serious question that the person could sue in Maryland? And I know it's a little off topic and with Maryland law, there'd be no choice of law clause, would Maryland law apply?

 

      And in my percentage in D.C., percentage in Maryland example, I assume the person can sue in either. And then the issue becomes does the two different laws apply to those percentages of time spent in Maryland and D.C.? Sorry for the complicated question, but this is real life in D.C., Maryland, and Virginia. Thank you.

 

Jaime A. Santos:  So I'm going to start with that, and then I will flip it to you, Karen, for your thoughts.

 

      So I will say, I don't think this opinion is going to tell you much about that issue. Here is the fact set that this opinion will tell you about. Imagine that you are an employer -- and this is actually going to sound probably quite familiar. So imagine you're an employer, you have a D.C. office, and you regularly recruit people who live in Maryland, and you -- because there's really great folks who live in Maryland who would do a great job and they come down to D.C. all the time, so they work only in the D.C. office.

 

      And then imagine, if you will, that there is a random, once in a generation pandemic where everyone has to start working from home, and people that you hired who lived in D.C. decided to move out to Maryland because they wanted a backyard and they have little kids who want to run around. You did not hire that person from Maryland. They ended up moving to Maryland of their own accord, but you hire people from Maryland all the time.

 

      And so you could certainly expect that if you had some type of employment dispute with that D.C. hire, or with anyone, that you could be subject to suit in Maryland where especially if you have people in Maryland who are actually going out into the field and doing sales work in Maryland. This particular employee who sued you didn’t. She wasn't hired for that reason. She was hired in D.C. to work in D.C., and she just happened to move to Maryland and worked from home during the pandemic.

 

      I think in that situation, Ford would probably suggest to you she could sue you there. I think it's going to be -- I don't think that the decision's going to say much, though, about when you have close quarters and percentage of breakdown and how all of that works. Though, I have seen a bunch of case law in this area, particularly focusing on places where there are two dual cities on borders.

 

      So I think of St. Louis, Missouri, East St. Louis, Illinois, Kansas City, Missouri, Kansas City, Kansas, and the DMV area. And courts have, in some instances, said listen, you should know that there's enough interchange between these locations that if you're taking action, it could go over the border and you should naturally expect that and could be subject to jurisdiction there. But I think that a lot of that will still remain open to question and won't be resolved by this case.

 

Karen Harned:  Yeah. I would absolutely agree with that. That was the example -- when you were saying, I actually thought that was the example you were going to go to. I would agree with that.

 

Evelyn Hildebrand:  Wonderful. I'll hand the floor over to our next caller.

 

Joe:  Hi. Thank you for the excellent presentation on this opinion. I've reviewed a little bit but certainly not in the detail that you have. Name's Joe, by the way, from Los Angeles. The question I have is this. Reconciling BMS and Ford, we've repeatedly always been told that personal jurisdiction turns on the defendant's contacts with the forum, not the plaintiffs.

 

But the distinction between the two seems to say well, BMS involved plaintiffs running around forum shopping, but that technically is not usually, as far as I remember, been the test for personal jurisdiction. So where does this leave us, particularly for those of us, like myself who practice a lot of multistate consumer class action, nationwide type stuff, very similar to, well, BMS.

 

Karen Harned:  Yeah, I mean --

 

Jaime A. Santos:  And I -- oh, sorry. I was just going actually ask if you could repeat -- I had lost reception so my apologies. I was wondering if you could repeat it.

 

Joe:  No problem. The question is focused one, on distinguishing or reconciling, I guess, is a better way to say it, BMS and Ford and it's really of a general nature which is the focus in these personal jurisdiction cases forever, as far as I remember, has always been the personal jurisdiction turns on the defendant's contacts with the forum, not the plaintiff. But the Ford opinion seems to say the difference between BMS and Ford here is BMS had plaintiffs that didn't have any connection to California and that's not the case here. So is our personal jurisdiction --

 

Jaime A. Santos:  So what do you do with -- what does BMS mean now, is what you're asking.

 

Joe:  Sort of, but then the next step being the next time I'm filing a brief on personal jurisdiction and a plaintiff goes well, you don't need to focus on my contacts with California, for example, that's not the test. Well, is it now, after Ford's attempt to distinguish BMS?

 

Jaime A. Santos:  Karen, you want to start with that?

 

Karen Harned:  Well, I am wondering if that's now where the focus needs to go more. I don’t know -- I just felt like her distinction of BMS really drew you there, and I was looking to see what she was doing to remind myself what she had done with the other cases. I feel like yeah, she just kept on -- I do feel like she kept on, in many of these distinctions, going back to the plaintiff's -- how the plaintiffs were situated versus the defendant's connection with the state. Do you agree or --

 

Jaime A. Santos:  Yeah. And actually, so Ford's argument in this case is basically BMS says you have to focus on the defendant's specific conduct and how that gave rise to the plaintiff's specific claims. And when the plaintiffs in this case said well, but here, the plaintiffs were injured in the state so don't worry about that. The plaintiffs were injured.

 

      Then Ford's response, and I think this was not a crazy response, was but you said a couple terms ago, in this case Walden v. Fiore, that you could only pay attention to the defendant's conduct and the defendant's contacts, and the plaintiff's contacts don't matter at all.

 

      So you're 100 percent right that you might wonder what do I do with that now? What Justice Kagan does with Walden, which is the case saying you should look at the defendant's contacts and not the plaintiff's, is she says Walden has nothing to do with this case because in Walden, the plaintiffs were the only ones with the contacts in Nevada. And the defendant hadn't done anything ever to form a contact with the forum.

 

      It was a police officer and the officer hadn't traveled to Nevada, hadn't conducted activities within Nevada, never contacted anyone with Nevada, didn't send anything to Nevada. So that's what Walden was about. And I think that that works well in a case where you're talking about an individual plaintiff and an individual defendant and no idea what that means anymore when we're talking about a plaintiff company and a defendant's company or a plaintiff individual and a defendant company.

 

      I do think there is going to be a resurgence of cases now arguing that the plaintiff contacts matter. And folks who are filing motions to dismiss for lack of personal jurisdiction are going to have to grapple with this question and figure out what Walden means now and if it's really cabined as Justice Kagan suggested. And there's going to -- this is going to be battled in state and federal court.

 

      But I think you are asking the exactly the right question which is what do we do with this now? That's one of the reasons why Justice Alito said we'll have to create this whole new test. What are you doing?

 

Karen Harned:  Right.

 

Evelyn Hildebrand:  Great. Thank you. In any event that no one else has a question, if you've answered all the questions, Karen and Jaime, I'll hand the floor back over to you for any closing comments that you would like to make.

 

Karen Harned:  Yeah. I guess I would just like to also pit -- as somebody that has represented small businesses for year, Jaime, we see a lot of times that a small business owner will be used to get that state jurisdiction, right, against the big companies. Do you think that this case is going to impact that at all? Do you think that actually could help make those types of tactics by the plaintiff's bar go away? Or do you just think it's just going to add -- do you think there'll just be more litigation and they're going to try everything they can including the tried and true bring in the dealer from that particular stage or whatever?

 

Jaime A. Santos:  Yeah. I think that I -- well, I think that it's going to be hard to know, but I totally agree with you that I think this is just going to be litigated for the next many years and I do think that the jurisdictional arguments are going to evolve on both sides in light of this decision.

 

      I feel like in the diversity jurisdiction context, there's always been a whole lot of gamesmanship to try to destroy complete diversity to keep cases out of federal court. And in that situation, often smaller forum companies are brought in as defendants. This may make it easier to bring a defendant into court, and so maybe then, the smaller defendants wouldn't be used to do so.

 

Though, and you may know more about this, my sense is usually that the entity with deep pockets is often going to be the one that is the focus of the litigation and that's going to be sued, and I think it's really going to depend a lot on what type of claim this is and who the defendants are because there are some areas of law where there's really a nationwide plaintiff's bar, like personal injury, there are plaintiffs who are happy to litigate that really and plaintiff lawyers who are happy to litigate it really anywhere. And so it's not that hard even if you're outside of the state to find a lawyer who can bring your case in a particular jurisdiction.

 

There are other cases that are trickier involving companies that are headquartered outside of the United States where there's no clear place in the U.S. to bring a lawsuit against them or when it's business to business or smaller business defendants, smaller company defendants.

 

And I think that's part of what is frustrating about not getting a clear standard except for close enough. We know that mountains and mountains and mountains of contacts are close enough. What if it's a large hill, you know, like what if it's a -- like, does it have to be Mammoth Mountain in California? Or can it be this teeny tiny "mountain I hiked at in Maryland a couple weeks ago?"

 

And I think we're just going to have to see, and that's all going to be flushed out by the lower courts and by the state courts over the next decade.

 

Karen Harned:  Yes. And I would say -- my only other -- oh, sorry. Go ahead.

 

Jaime A. Santos:  No, no. Go ahead.

 

Karen Harned:  I was just going to say my only other observation is I am getting a little concerned as to how the Court is ruling on some of these civil justice reform type issues that result in more litigation. I feel like we've been going down a pretty good road up until a couple years ago, and this decision and at least another one, the one I'd referenced earlier, have made me question what's happening there because I did feel like the Court had seen some of the antics that the plaintiff's bar had been doing and trying to curb those. But then now, I feel like they're also opening the door in other ways or at least inviting more litigation with that by not giving a clear line for litigants to know when -- yeah. So anyway.

 

Jaime A. Santos:  Yeah. I think that's -- yeah. So my sense of this is that BMS was a reaction to the plaintiff's bars antics and that Ford is a reaction to efforts by defense lawyers to go too far, right? And so I think the Court is kind of course correcting in each place, but I think that is part of the problem with a really malleable standard of establishing specific personal jurisdiction that is framed in terms of whether the context arise out of or relates to the claims, right, o that claims arise out of or relate to the contacts.

 

And I do think it is certainly a place where predictability matters. The whole point of personal jurisdiction doctrine is predictability. One of the points is predictability and that defendants should be able to understand what they can do to adjust themselves to jurisdiction in a particular location or to withdraw themselves from jurisdiction in a particular location if they decide that the tort law in that particular place is too dangerous to risk if the jury practices create too big of a risk that make it impossible to get insurance. And that's a big piece of this doctrine.

 

And when the Court course corrects based on pragmatic concerns, I think maybe that gets to the just or right result, but it makes it impossible for lawyers and parties to know what the actual state of the law is at any given moment.

 

Karen Harned:  Yes. I absolutely agree. And Evelyn, that's all for me.

 

Jaime A. Santos:  For me too. It was great to chat with you today, and thanks for the questions.

 

Karen Harned:  Yes. Absolutely.

 

Evelyn Hildebrand:  Wonderful. Thank you both so much for joining us. And on behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today. And I wanted to thank our audience for calling in and participating. We welcome listener feedback by email at [email protected].

 

As always, keep an eye on our website and your emails for announcements about upcoming Teleforum calls and virtual events. We actually have one coming up this afternoon at 4 p.m. regarding Model ABA Rule 8.4(g). Thank you all for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.