Courthouse Steps Oral Argument Teleforum: Ford Motor Company v. Montana Eighth Judicial District Court

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Liability in motor vehicle accidents is frequently an issue necessitating litigation, but not typically at the level of the Supreme Court. In this case, though, two incidents rose all the way to our highest court. In a Minnesota accident, a passenger driving a Ford vehicle suffered severe brain injury when the passenger-side airbags failed to deploy during an accident. Ford found itself in another case, this time in Montana, involving a vehicle's tread/belt separation and resulting in fatality for the driver. Despite their efforts to dismiss these claims by citing a lack of personal jurisdiction, the state courts and state supreme courts in both cases affirmed the ruling of liability and negligence on the part of Ford Motor Company. The Supreme Court will now decide whether the "arise out of or relate to" requirement of the Fourteenth Amendment's due process clause permits a state court to exercise specific personal jurisdiction over a nonresident. 


Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center

Jaime A. Santos, Partner, Goodwin Procter LLP



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Event Transcript



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



Nick Marr:  Welcome, all, to The Federalist Society's Teleforum Conference call. This afternoon, October 9, 2020, we have a special Courthouse Steps Oral Argument Teleforum. We're reviewing Ford Motor Company v. Montana Eighth Judicial District Court, oral arguments in that case. I'm Nick Marr. I'm Assistant Director of Practice Groups at The Federalist Society.


      And as always, please note that expressions of opinion on today's call are those of our experts.


We're pleased to have with us this afternoon Karen Harned. She is the Executive Director at National Federation of Independent Business Small Business Legal Center. We also have Jaime Santos. She's a Partner at Goodwin Procter LLP. After our speakers give their opening remarks and back and forth, we'll go to audience question and answer, so be thinking of questions and have those in mind for when we get to that portion of the call.


Okay. Thanks for being with us here today. Jaime, I'll give the floor off to you first.


Jaime A. Santos:  All right. Thanks so much. So I noticed this is a Courthouse Steps Teleforum, but do not worry. Karen and I have not been sleeping outside of the courthouse steps for the last few days. So I know there are a number of really big arguments this week, so I'm glad we're able to fit this in today.  


So I'm going to start by giving you some background about the two cases. So there were two cases that were consolidated for oral argument, and I'll give you some idea about the parties' arguments. So here's a condensed version of the facts.


So Ford Motor Company -- they're the petitioners in the case. Ford is headquartered in Michigan, incorporated in Delaware, and the company was sued in two cases in Montana and Minnesota. Both of those cases involved people who claimed injuries from car crashes that happened in Montana and Minnesota.


Ford did not assemble or manufacture those cars in those states, and the plaintiff didn't buy those cars in those states either. Instead, Ford sold the cars to independent dealerships in other states. And the cars ended up in Montana and Minnesota after numerous private sales that Ford wasn't a part of, eventually making their way to Montana and Minnesota where they allegedly resulted in injuries to the two plaintiffs who are the respondents in this case.


And to be clear, this case is about specific personal jurisdiction. And the first prong of specific personal jurisdiction is purposeful availment or purposeful direction. And Ford did not contest that it had satisfied -- that that prong was satisfied. The company has a bunch of forum related contacts in Montana, in Minnesota in general. So it sells vehicles to independent dealerships in those states. It advertises nationally and so forth. What it contested was the second prong of specific personal jurisdiction, whether the claims arose out or were related to those forum related contacts.


And since Ford's position was essentially that specific personal jurisdiction exists only if the defendant's conduct that occurred in or is targeted at the forum state actually gave rise to the specific plaintiff's claim and they say that since the vehicles at issue were not sold in Minnesota or Montana, there was no manufacturing activity that was related. There was no related advertising or anything along those lines, the vehicles were only brought into Montana and Minnesota through the unilateral decisions of prior owners who weren't even parties to the case, that the personal injury claims did not give rise to the specific plaintiff's claim.


Ford says that for a plaintiff to assert claims for manufacturing defect in Montana, it's not enough that it markets and sells other Ford vehicles in Montana if the plaintiff's vehicle wasn't manufactured there, designed there, or sold there by Ford. And Ford argued that any other rule would be inconsistent with recent Supreme Court cases about specific personal jurisdiction, including its 2017 decision in Bristol-Myers Squibb v. Superior Court of California.


That case held that just because plaintiffs who were sold pills by BMS in California could sue BMF there, that doesn't mean that other plaintiffs who were sold pills by BMS in other states could sue there. And that was the case even though all of the claims were similar, the injuries were similar, and the product was exactly the same. 


Now, the plaintiffs say that this case is different from BMS because the plaintiffs in BMS weren't California residents, and they weren't injured in California. And what we'll talk about in oral argument is that's a distinction that Justice Kagan drew as well. But what Ford counsel, Sean Marotta, emphasized in briefing and during the argument is that that argument that is this case is different because the plaintiffs were residents of Montana and Minnesota and were injured there, that argument runs smack into the Court's decision in another case called Walden v. Fiore.


And Walden held that the plaintiff's contact with the forum are irrelevant to this jurisdictional question. What matters is the defendant's contacts. So basically, what you have in this case is, what Ford's counsel argued, BMS plus Walden, that does not equal win for plaintiff.


Now, the plaintiff's arguments on the merits -- I should mention, it has changed a bit since the cert stage. So when the plaintiffs filed briefs opposing for cert petition, they advocated for what's called a stream of commerce theory of specific personal jurisdiction. They basically said that if a company places a product into the stream of commerce from wherever in the United States and they have the purpose of serving a particular state and they expect that those products will be purchased by people in those states or will make their way to those states, then that's enough to satisfy the due process clause.


On the merits, once the Court granted cert, the plaintiffs ran away from that theory and instead, they argued a different test. They said that if Ford cultivates a market in a particular forum for a particular product and then there's an injury involving that product in that market, then the company is subject to the jurisdiction of that state no matter whether the injury occurred as a result of that cultivation and no matter how the product involved in the lawsuit actually got to the state.


And there are some amicus briefs that continue to endorse that stream of commerce theory. But when the plaintiff's counsel was asked about it at oral argument, he told the Court that it didn't need to reach that question.


So that's the general background about the parties and the arguments. And I should mention that there's been a wide variety of amicus participation in the case. The United States filed a brief that was largely in favor of Ford. And interestingly, it asked for oral argument time, and the Court unusually denied that request.


Also, a number of industry groups filed amicus briefs on Ford's side as well, including a brief that I filed on behalf of the Alliance for Automotive Innovation and the General Aviation Manufacturers Association. There were also a considerable number of amicus briefs filed in support of the plaintiff, including several briefs that were filed by law professors. There was a brief filed by 40 state attorneys general, and there was a brief filed by the National Association of Homebuilders. So there are interesting coalitions on the different sides.


So Karen, how do you think the argument went? I'm curious what you noticed and maybe what surprised you.


Karen Harned:  Well, thank you, Jaime, and thank you everyone for attending this call.


      I thought that the argument was interesting in a number of respects. First of all, I do think there wasn't as much discussion of the underlying case laws we thought that we might see that Jaime just listed in the background. Perhaps, that's because they didn't need to worry about it because they'd already considered it. Although, Breyer did admit in argument that he was going to go back and grade it. It would be interesting to know how much preparation they did do on this case prior to argument because they had the Google case before, which ran over and has been much in the press.


      I think the other thing that was interesting to me was Thomas and Alito and Gorsuch were all very interested -- well, I'd say, pulling back from that, that you have -- it seemed like the justices on both sides were very interested in what would be "fair." And they were looking at it from different perspectives, I think. I would assume that the more liberal justices are maybe going to do more of a results-oriented analysis of that, but I thought that it was interesting that Thomas and Alito and Gorsuch were all trying to get it back to first principles and what are we doing here with the due process clause.


And one of his earliest questions of the defense attorney, Mr. Marotta, Justice Thomas, he said that he thought the approximate cause test that Ford was putting forward was really a long journey, he said, from the due process clause and one of -- that further explained and I don't know that he ever felt that he was satisfied on how far Ford got there. So, Jaime, I'd be curious to hear what you think in response to that.


      And Alito, at one point, I think, really kind of acknowledged that -- or at least he saw the law in this regard as kind of a mess and not clear. One of the big hypos that kept on coming up was with regards to --


Well, so first, before I say that, I should say Jaime mentioned that the Homebuilders had filed a brief in this case. They argue that the Court should take the stream of commerce theory. They pointed out at the very beginning of their brief that all businesses are not going to see this case alike and for their members who primarily operate interest state, if Ford were to win, they would end up—and they said they already see this in practice—they would end up being the first to be sued in many of these cases.


      It would then be up to that homebuilder to bring in the Fords of the world or whoever the manufacturer of their product was into the suit. I can speak from the small businesses I represent that, as a practical matter, that wouldn't happen in many instances. But I guess what they were basically trying to say was it leaves them on the hook.


They also had an interesting point that really didn’t' present in the facts this case in which a lot of their products that they're sourcing for their housing is coming from countries that can't be brought into American -- companies that are from abroad and can't be brought into American court or even figure out who they were, like the maker of drywall in China that they end up using in a house.


      So they had an interesting and unique perspective, but I thought it was -- what I thought most telling about it was that the typical "business group" that you would think would side on the side of Ford but they came in on the other side, they definitely resonated. Gupta, who represented the plaintiffs, called them out and their brief out in his introductory remarks.


And throughout the argument, there were hypotheticals that were peppered in that were dealing with this issue of the small business owner, I think it was Roberts, had one in Maine and what if he advertises just in New Jersey because he wants to hit that market but it goes viral and somebody in New York buys his product, and now does that small little Etsy person from Maine have to defend themselves in New York even though he didn't to market his product in New York?


      There was Justice Thomas's example of, which I think -- well, anyway, so that's one with regards to how does this cut? How does it cut for the smaller versus the big? And I think also there's a distinction between industries, like a homebuilder versus a manufacturer because the small manufacturer that's been their community manufacturer is going to be probably, I would think, more on the side of Ford than on the side of the homebuilders, who, again, it sounds like do source a lot of their products from outside of the country.


      And the only other thing I would say there is -- the only other thing I would close with then, and I'm curious to see what Jaime thinks, is neither -- everybody always goes into these arguments thinking oh, okay, let's give the Supreme Court a bright line and then they're going to love it and they're going to take my argument and I'm going to win. And I just feel like the justices did do a really good job of showing how each argument could -- had an administrability issue associated with it.


And so I really was left at the end, and I'm not as expert on this as Jaime is, but I was left at the end wondering really what they're going to ultimately do, how they're going to resolve this and what test they might use or if they're going to create their own test. So Jaime?


Jaime A. Santos:  Yeah, actually, let me ask you one question about the stream of commerce and the homebuilders that I'm curious to get your views on. So the reason why I think companies like Ford and other companies like my clients, the General Aviation Manufacturers Association, are concerned about a stream of commerce theory is that certain goods, like automobiles and airplanes, are not just durable but they're also inherently mobile.


And so a stream of commerce theory will allow that you sell a car in Ohio and then 30 years and five owners later, it ends up in Michigan. And that can be something that is either unexpected in some ways, whereas I feel like with things like suppliers of homebuilding types of products, if you have a manufacturer who is providing wood or some type of homebuilding product to a homebuilder in Nebraska, there's a direct supplying relationship there.


      So I'm just curious how the personal jurisdiction test would differ because there would still be, I feel like under Ford's position, there would still be personal jurisdiction over the drywall company in Nebraska because they sell that product to the homebuilders directly. But maybe there are more intermediaries along the way, which is where things get complicated.


Karen Harned:  Well, I do think that is part of the problem is they even referred to them as -- they referred to intermediary sellers in their brief quite a bit. I just think in reading their brief and thinking about it more and also noting your brief that you filed that was awesome in the case, I just think that it may really be a situation where it's more industry specific in how your industry operates. And for whatever reason with the homebuilders, that is -- they are just uniquely feeling like they are the intermediary to get to the big pocket.


      And they also, again, raise the issue that the big pocket may not even be somebody that could be sued in American court. They could be in a foreign country, and therefore, their homebuilder gets put on the hook. And then so I do think -- I don’t want to -- I mean, I guess for lack of a better word, I represent homebuilders and I love their work, but it was more of a self-interested argument probably because they -- but it's based on experience they've had.


And I just thought -- but I did think it did point more broadly just in these civil liability tort forum issues for the most part, you see the business community align. But there are times where it's going to hit different players differently, and this is just one and quite frankly one that I didn't expect to see, which I found even more interesting because I just had never heard about that before and I've represented homebuilders for a number of years.


Jaime A. Santos:  Absolutely. And I think this is one of those areas where amicus briefs actually can be very useful. Sometimes, it seems like you get 50 briefs that all say the same thing, but one thing that I think the justices were preoccupied by about in this argument is that they're going to be making a rule in a case about vehicles that's going to govern small businesses, that's going to govern all types of different companies and plaintiffs and contacts and drugs, all kinds of different things. And it is really difficult to fully grasp the impact of that and to make a rule that's workable in all of those situations.


So I do think all of these amicus briefs are useful. And I think if you see -- I think we've seen a difference in approach from the court in this case versus the court, what it did in the BMS case, which was about pills. And I think if the courts recognizing oh wait, we're creating this broad rule and oh goodness, it gets a little mucked up in different factual contexts.


      One thing you mentioned that I definitely agree with is that the Court was very focused on fairness. For several of the justices, that was their first and foremost concern. And I think for several justices, if you have a plaintiff that has an in-state injury and is an in-state resident, then it doesn't really seem at all unfair to require a large company that operates in all 50 states to have to litigate there, regardless of whether the company engaged in any in-state conduct relating to those particular plaintiffs or their particular vehicles or their particular claims.


And I also think it seems pretty clear that some of the justices are a little bit exasperated by the Court's personal jurisdiction rules that have evolved over the years. So clearly, you have -- Ford is engaged in business in all of the relevant states that were linked to vehicles generally. Clearly, Ford could anticipate being haled into court in any of those states based on problems with its vehicles generally.


But it's also true that these specific products had no connection to the forum state. And for some justices, I think that seems like a ridiculous display of formulism. It's kind of you being a technicality to deprive individuals of their day in court if they don't have their resources to bring a lawsuit in a different location. And I think that there are some justices that think that the difference between specific and general jurisdiction is supposed to be that if somebody manufactures clocks in Minnesota, for example, you can't, using specific personal jurisdiction, sue them for patent infringement based on a totally different product that is designed and manufactured in a totally different state. There has to be more of a connection.


But it's not meant to carve things up claim by claim and individual product by product in the way that Ford's trying to do. And I think that generally speaking, that's not really an irrational position to take. But what I struggle with is what you mentioned at the beginning, which is that that type of a position, a broader view of specific jurisdiction, has already been rejected by the Supreme Court in BMS. And BMS said just as plaintiffs who were sold pills by BMS in California could sue BMS there, doesn’t mean other people can as well. And you can't just couple it all together and you can't piggyback based on the contact that existed in certain states.


      And so I think it's really hard to square the serious concerns addressed with all of the case law that's evolved over the last two decades. So I think if the Court were writing on a clean slate, that that type of fairness concern would be completely reasonable. But the Court isn't writing on a clean slate, and so it's a little hard for me to see how the Court could get to a result that would carve this case out from cases like BMS and Walden v. Fiore without actually overruling those cases. And I think it's going to create a lot of confusion if they try to do so.


      Another point I found interesting is something else you alluded to is that the justices that were trying to figure out, we have all this case law of decades and decades on jurisdiction. How does this actually relate to the due process clause? And I think you were right that Justice Alito seemed to recognize that the Court's personal jurisdiction jurisprudence is all basically based on traveling salesmen in the 1940s. And all of the cases after that built on that foundation, but modern commerce looks nothing like what it used to.


      And he didn’t really seem to have a solution to that problem, but he seemed very frustrated by it. And so he asked a lot of question about it, and I thought that the parties' responses to that were interesting. I think the counsel for the plaintiff, Deepak Gupta, who you mentioned earlier, he argued that federalism principles weigh in plaintiff's favor because the state wants to exercise jurisdiction in cases implicating their residents. And he emphasized that there were over 40 state AGs who filed in his favor from red states and blue states.


      But the due process clause is supposed to be a limit on the power of states. It's not supposed to enhance the power of states. And so if being that that's a strange kind of argument to rely on if you're talking about federalism, and the due process limitations are supposed to protect the interest of a defendant, not the interest of the plaintiff or the state that's trying to hale people into court.


      I think counsel for Ford focused a lot more on the recent existing precedent, which makes a lot of sense when you have several cases that are pretty on point. But when he talks about first principles, the first principle he focused on was saying listen, the whole point of specific personal jurisdiction is basically this. It's supposed to mean that if you go into a forum and you do something there, you can be sued there for that conduct.


But Ford didn't go into Minnesota and Montana and do anything that led to the plaintiff's cases. So if you just look at that kind of first principle, it's easy to see how Ford wins. But as you mentioned, there were some fairness concerns, especially when you're talking about a large corporation that has the ability to litigate anywhere.


      And then on the Court and the justices and the litigators talked a lot about administrability. And you mentioned trying to find a clean rule, a bright line, and I totally agree with you that if the court's looking for a bright line, it's not going to find that, really, in either side's argument.


The defendant's rule would require a -- or would ask for a proximate cause relationship or a direct causal relationship or a substantial relationship. That is an inherently squishy standard. And the justices also seem to think that it would overlap with the merits too much, and they don't like the idea of litigating the merits at the jurisdictional stage.


      And the plaintiff's rule is -- it became more limited, I thought, during the argument. It's limited to the exact product sold and advertised in the forum state. Because I think in the briefing, there were a bunch of questions saying well, if you're talking about a Ford car, what if they say Ford truck or what if it's a Ford component part, or what if it's that? So Mr. Gupta said that would have to be the exact same product. And Justice Thomas used a Ford Raptor as an example a few times. I wonder if he has been pining over that particular new vehicle.


      But even if you limit something to the exact same vehicle, I still think there are lots of questions. So you're supposed to be talking about the exact product that a company sold or advertised in the forum state but sold and advertised when? Mr. Gupta said that his rule would allow a company to exit a market or partially exit a market if they want to avoid being sued there.


      But in at least one of these four cases, the Crown Victoria that allegedly caused harm hadn't been sold by Ford or advertised in the forum for years and years. So should Ford win under the plaintiff's test in that case? And you have cars and boats and planes that last decades, and so if you advertise in-state for a year and then you don't do anything for 20 years, and someone brings a product 20 years later, do they have to prove that you advertised when the product was initially manufactured or do you have to prove that there was advertisement later on 20 years later? It just seems like it could be also very confusing and lead to a ton of litigation.


      And then the other point that I thought is interesting is that a rule that's maybe fair for Ford might not be fair for other companies, and the Court's creating a rule that's going to apply to everyone. And so one example, imagine that you had a knitter in Pennsylvania who sells most of her products in local stores in her town in Pennsylvania, but she was able to become a supplier for a small shop in Poughkeepsie, New York, a tourist shop. And she supplies actually a significant amount of her knitting products to that shop. Otherwise, she sells them locally in Pennsylvania.


      But then her products go viral on Twitter, because that's what happens. And say you have a group of high school students who are from New York City on a school trip. They see these products in Pennsylvania, they remember how it went viral on Twitter or TikTok or whatever, whatever they're using now. And so they purchase those products, and they bring them back to New York City where the yarn used in them causes them to become sick.


      So under the plaintiff's test, there should be specific personal jurisdiction because you've got a Pennsylvania crafter who cultivated a New York Poughkeepsie market, and you've got in-state entry and that's all you need. But that would seem really unfair because she didn't do anything to cultivate a market statewide. And these kids from New York City found out about her products through nothing she did. So that seems wrong. So I think there are challenges with both of the parties' arguments and nothing seems really super clean on either side.


      One other question is there are a lot of questions about internet commerce and internet advertising. There were a bunch of questions that were asked of Mr. Gupta. What about online advertising? What were your thoughts, Karen, about how that went and if the justices got a satisfactory answer, and if you think that's going to be addressed by this decision?


Karen Harned:  Well, so that's interesting because I kind of felt like because there were so many questions about it and I already felt like the two tests were hard enough. If they could avoid it, I think they'd like to. You know what I mean?


      But at the same point, I do feel like the plaintiff's theory would rely a lot on internet, actually. I mean, I don't know what you think about that, but I think that that is -- that's showing contact with the state. So I don't know how you -- I guess I don't know how they avoid that question altogether because I feel like, again, to your point that I thought was a really wise one when you were talking about Alito and how the due process clause works and how this personal jurisdiction and specific personal jurisdiction law has developed since the traveling salesmen, the internet is just omnipresent in all of these issues.


      And so I just, I don't know how they -- I guess I think they'd like to avoid it, but I don't think -- how they avoid it altogether. I don't know if you disagree with that but --


Jaime A. Santos:  Well, yeah. I definitely think that plaintiff's counsel was asking us the questions about it. He did not want to touch internet advertising with a ten-foot pole and catch -- and understandably, trying to deflect. And so to kind of punt on that issue to say it creates more complicated problems. I think that we would probably see an opinion that tries to carve out online advertising and online retailers.


Karen Harned:  I don't think that's --


Jaime A. Santos:  But, I mean, I think you're right that no matter what inherently, courts are going to -- courts need guidance on that issue, and they're going to have to be reading that guidance into this opinion even though it may not be about that.


      So in some ways, it's a shame that I think they're probably not going to speak directly to that issue because that's what a lot of lower courts are dealing with and state courts are dealing with. But it's probably ultimately best to leave that for another day with a better developed record.


Karen Harned:  But I guess, I would think that would hurt the plaintiff's argument, though, a little if they don't have that factor. Do you not, or. . .?


Jaime A. Santos:  Well, so I think that if you're talking about here, they probably can show in-state advertising from pamphlets and all that kind of stuff, and so they probably don't need to. But I think that relates to part of the [inaudible 30:59] with this case is that a lot of people aren't even looking in that kind of stuff.


      Somebody who was in Michigan who buys a used car and they go over to Idaho to do it, they might be going onto Auto Trader. They might just be looking at them on ads, and they're not looking at anything Ford does. They're just deciding to buy a used car, and then they bring it inside of the state. And that has nothing to do with Ford's conduct in the state. But I think it does create more difficult problems. And it's certainly the types of -- those are the types of problems that courts are dealing with every day.


      Should we open it to some questions perhaps? Do you think?


Karen Harned:  Yeah. I think that'd be great.


Nick Marr:  Okay, great. Yeah. We'll go to audience questions. I'll give the callers a bit to line up here with any questions they might have. I'll just start off a question that maybe it's not super specific to this case, but do you expect a split decision and an odd split, a split where you might not see very often? Is it going to be more like -- maybe it's unanimous? What are you both thinking about how this will come out?


Jaime A. Santos:  So that's a great question. I'll say the last two big specific personal jurisdictions were Walden and BMS. BMS was not unanimous. I think it was 8-1. Walden was unanimous. And I think that this is a case where if we could see some split decision. We could see some kind of strange lineups. We could see some concurrences. But I do think that this is also a case where it is harder to read the tea leaves from arguments.


      Some of them are -- some cases are pretty easy to do so. Other ones it's harder. And this is particularly so because my suspicion is, as you mentioned before, Karen -- I'm sorry, this is Jaime, I should mention. My suspicion is that the justices were focused a lot on Google v. Oracle this week and maybe not so much on this case. And they mentioned Justice Breyer said at one point okay, well, you're telling me about BMS and Walden. I'll go back and read those cases.


      So it may be that once the justices kind of really go back and canvas their existing and recent precedent, they realize that the case is a little more complicated. Or it could be that the opinion focuses mostly on fairness, but that would be a really big shift in the trajectory of the Court's specific personal jurisdiction doctrine. But I think it's going to be hard to predict from argument what it will look like.


Karen Harned:  Yeah. I agree completely.


Nick Marr:  Okay. And we do have our first question here. Okay. We'll go to our first caller now.


Caller 1:  Hello. I guess I'm just a little confused as to one of the facts about Ford not having purposeful availment in the state because don't they sell cars there all the time?


Karen Harned:  Right, but they don't -- they haven't sold -- I mean, correct me if I'm wrong, Jaime, but they haven't sold that Crown Victoria in, I mean, is it even --


Caller 1:  Oh, I'm sorry to interrupt, but didn't the Court look at that and say doesn't matter what kind of -- as long as they're doing business there, doesn't that constitute purposeful availment? It doesn't have to be a specific nut or bolt or type of car, but if they're doing business there, then they've established the minimum contacts.


Jaime A. Santos:  So I think that's really the heart of the case. And let me mention two cases and give a little more background on why Ford argued with good reason that that's not enough.


      So back a couple decades ago, Justice Ginsburg wrote this opinion in a case involving Goodyear. And the opinion held for the first time that even having continuous and systematic contacts in a state is not enough for personal jurisdiction. If you're not at home, if you're not headquartered in a particular state, someone can't just sue you there for any reason.


      You'd have to show that not only do you have -- do you do a lot of business in the state, but that the lawsuit, the claims, the specific claim at issue, arose from that conduct that you engaged in. And in the BMS case I mentioned before, the Court said yes, BMS, you sell hundreds of millions of pills of Plavix, that was the drug at issue in that case. You sell hundreds of millions of pills of Plavix each year. You do R&D. You advertise. You do all kinds of stuff in California.


      That doesn't mean that anyone can sue you in California. There are people who are in California that bought your pills in California and that were hurt in California. They can sue you, but other people can't because their injuries didn't arise from anything that you did in that state. What you did -- their injuries arose out of things you did in other states.


      And so I think that when you apply that to this contact, Ford's argument is the fact that Ford sold various cars in Montana and Minnesota isn't enough under all of the court cases. And the fact that the plaintiff lived in Minnesota and Montana isn't enough either because you have other cases saying what the plaintiffs do doesn’t matter. It matters what the defendant does.


      So I think that's why Ford is arguing that there's no specific personal jurisdiction in Minnesota and Montana. Does that answer it?


Caller 1:  Yeah. Now you reminded me what the rule was. Doesn't it seem a little incoherent though, did the judges push back on it? Did they seem like they were going to revise it, or you think they're going to continue with that special carve out for corporations? Because I remember Scalia would have the tag rule for an individual, when you can just be in the forum state for just a minute and then you can get subpoenaed. So there's a double standard for corporations and individuals. I don't know. Just seems like something that the Court could take an opportunity to revise.


Jaime A. Santos:  Yeah. I see -- Karen, I'm curious your thoughts on this. I think I would be surprised if the Court totally changed the trajectory of its case law, but I think it could carve out some exceptions, product-based exceptions or it could narrow the -- or it could broaden the very narrow definition that the Court has had about this specific personal jurisdiction doctrine thus far. I would be surprised if they totally reversed course and say that companies can be sued really anywhere that they do business.


Karen Harned:  Right. I agree. I could see them -- I definitely could see them broadening it a little bit, but yeah. I do think that they are still tied to the case law, and I just don't think it gives them as much wiggle room to just completely get rid of the old test and let big companies get sued anywhere, right. I just don't see them going that far. Maybe -- yeah, I just don't see them going that far.


Caller 1:  Thank you.


Nick Marr:  Okay. We'll go to our next question now.


Caller 2:  Hi. Thank you for giving this call. So I guess my question is, you guys mentioned that a big part of the case is formulistic differences between the actual product and then the same product but not the exact one. And I feel like that really speaks to BMS pretty heavily and the facts are kind of similar in that case.


      What do you guys -- do you think the decision in BMS would've changed if the California resident went to Ohio to visit family, got the Plavix from Ohio pharmacy, brought it back to California, and was injured there? How do you think that little detail would change that case? And I feel like that kind of applies to this case as well.


Karen Harned:  Yeah, I mean, I think that's a big distinction, and I don't know. Jaime, do you think that would've changed it?


Jaime A. Santos:  So if I'm basing things off of how the oral argument went this week, I would say yes, the justices probably would say there's personal jurisdiction there. If I were basing it off of the BMS opinion and the Walden v. Fiore opinion which says it doesn't matter what the plaintiffs do, that's not the relevant inquiry. The relevant inquiry is what the defendants do. I would say no. There's no way you could have jurisdiction there.


You'd have to prove that there was a sale or a sale within the forum state in California or you'd have to prove that there was manufacturing in California or designing that particular drug in California, something to show a California nexus between the defendant and those specific pills. And while it seems formulistic to carve it up based on the specific drug and trace your specific pill and your specific car to where it came from, that's the test the Court adopted. So it's going to have to change that focus if they want to come to a different decision, I think.


Caller 2:  Awesome. Thank you.


Nick Marr:  We don't have any callers in the queue right now. I guess, in the meantime, since we're coming up at the end of the hour, maybe we'll get a question, but I'll offer a chance for any closing remarks that you might have or if you want to continue the conversation.


Karen Harned:  Yeah. One thing I was going to -- I just was thinking about, Jaime, that we didn't discuss that might be worth just mentioning is—and it kind of went to what you were just saying—there was quite a bit of conversation, I feel like, especially when Mr. Gupta was up on what if it's an airbag that's in this one car that's airbags of all these different cars, but the same airbags in this one model that's in Montana but isn't in other states, anyway.


The question of whether or not a part could pull in jurisdiction and I thought it was interesting because I feel like Mr. Gupta was trying to foreclose that by saying it has to be objectively discernable that the product that's being sued was actually introduced into that state. I didn't know if you had any thoughts on that whole line of questioning.


Jaime A. Santos:  Yeah. The component part is a hard question because if you take the plaintiff's theory here, it's basically if you cultivate a market and sell a product and then there's an injury caused by that product, then there should be specific personal jurisdiction. And so if you sell airbags, that component piece, to dealers or to the folks who do -- like the mechanics, and someone gets an aftermarket airbag or something like that, yeah. I'd have a hard time seeing how logically you can carve out component parts. But I understand Mr. Gupta's desire to carve that out because otherwise, it makes it seem totally unreasonable.


      And so I think there was this one question that was asked, maybe by Justice Breyer, that said something like yeah, yeah, yeah, I hear what you're telling me now, but in two years from now, you're going to be up here, or maybe it's not you, maybe someone else is going to be up here, and trying to ask me to extend this to component parts.


      And I think that's what the defense bar tries to do and that's what the plaintiff's bar tries to do. You get a win, and then you push the win, and you push it and you push it. So yes, that's probably the case. It's also fair game, though.


      If we don't have another question, one other thing I wanted to mention is that this week, the first week of the 2020 term, it also saw an eight-justice court. And I think in some cases, that will be consequential. In other cases, it won't. But I think it's worth mentioning that Justice Ginsburg was probably the premiere justice when it comes to issues of civil procedure.


She virtually gave birth to modern specific personal jurisdiction doctrine in that Goodyear case that I mentioned. She was a civil procedure professor before becoming a judge. I think Justice Scalia called her a civil procedure tigress once. And she also is a big part of the Court's narrowing of specific personal jurisdiction over the years. She joined the majority in BMS. She joined the majority in Walden v. Fiore. And I would've loved to hear what she thought about this case.


      And I also think that it could be harder for Ford to countify justices without her, despite the fact that she was part of the liberal wing of the Court. And remember that when you have an eight-member court, if the Court is decided 4-4, the respondent wins. So who wins is a matter of who won below, not -- that's really -- if Ford had lost below and the plaintiffs appealed and it was 4-4, Ford would win. But the fact that it went the other way in the court below, if Ford does not win or if it's 4-4, it's going to be a plaintiff's victory.


      But we also won't get an opinion if it's 4-4, so I think it's an interesting dynamic and I am pretty sad that we couldn't hear Justice Ginsburg's views on this kind of critical issue of civil procedure.


Karen Harned:  Yeah. And I just close by saying one of the things that—I feel like it did come up in argument, but I just do think this case just points up—is I really hope whatever the court does, it is clear for the lower courts because it's a mess enough right now out there for large and small businesses alike. And I just think that these jurisdictional rules are just screaming for clarity from the Court, and so I hope they don't -- I just hope that they're -- despite the fact that I know neither test was perfect that was offered, I hope there's some stuff that they come up with that the lower courts are going to be able to work with moving forward in these types of cases.


Jaime A. Santos:  And if they're not clear, then it's really great job security for Supreme Court lawyers like myself.


Nick Marr:  Okay. So we don't have any questions, so I guess we'll close up. I take it you both gave closing, or do you want to add anything here at the end?


Jaime A. Santos:  I'm good.


Karen Harned:  I'm good too.


Nick Marr:  Okay, great. Well, thank you both for joining us today. Thanks for the benefit of your valuable time and your expertise on this. And thanks to audience for calling in on this Friday afternoon. And as a reminder, keep an eye on our website and on your emails for announcements about upcoming Teleforum calls. We've got a busy week next week, lots more arguments and a couple special topics on Teleforum. So thank you all for joining us today. We are adjourned.




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