United States: Product Manufacturers Face Uncertain Future as U.S. Supreme Court Considers New Contours for States' Exercise of Personal Jurisdiction

Originally published in Product Safety & Liability Reporter, 39 PSLR 307, 03/21/2011. Copyright © 2011 by The Bureau of National Affairs, Inc. (800- 372-1033) http://www.bna.com

Two important jurisdiction cases before the U.S. Supreme Court present an opportunity for the top court to provide much needed clarity about the instances and means in which state courts exercise specific and general jurisdiction over product manufacturers, say attorneys Harris Neal Feldman and Jeremy L. Hekhuis in this BNA Insight.

The authors analyze the recent oral arguments in J. McIntyre Machinery v. Nicastro and Goodyear Dunlop Tires Operations SA v. Brown, and counsel businesses to examine the scope and nature of their distribution schemes in order to assess how and where they might be subject to jurisdiction.

The United States Supreme Court, after hearing argument Jan. 11 in two companion cases, J. McIntyre Machinery v. Nicastro (No. 09-1343), and Goodyear Dunlop Tires Operations SA v. Brown (No. 10-76), is poised for the first time in over two decades to prescribe the circumstances and jurisdictional contours by which product manufacturers may be sued in the United States.

At their core, the arguments raised by the litigants—on both sides and in both suits—address concerns about the increasing globalization of trade as well as the capacity of our courts to address the realities of an increasingly interconnected and globalized marketplace. These suits give the U.S. Supreme Court an opportunity to articulate a jurisdictional standard that assuages the business community's fear that they can be sued anywhere their products are found while recognizing consumers' interest in knowing that they have a forum in which they can seek remedy for injuries caused by defective products.

In J. McIntyre Machinery v. Nicastro, the Supreme Court heard argument about whether a specific state (New Jersey) may exercise personal jurisdiction over a foreign manufacturer—pursuant to the stream-ofcommerce theory—solely because the manufacturer sought to sell its products in the United States market, generally. In Goodyear Dunlop Tires Operations SA v. Brown, the Court heard argument about whether a state court (North Carolina) may exercise general personal jurisdiction over a manufacturer—who lacking any contacts with the state—had its products sold in that state after they were placed in the stream of commerce. Ordinarily, debates about whether a court has the power to hear the dispute before it draw little attention outside of legal circles. However, both sides of this dispute agree that this decision has far-reaching implications.

The manufacturers (Petitioners before the U.S. Supreme Court), argued that absent Supreme Court action, the decisions of the New Jersey Supreme Court and the North Carolina Court of Appeals will weaken our nation's economic health by, among other things: limiting foreign corporations' willingness to conduct business in the United States1; chilling foreign direct investment2; and undermining our nation's ability to conduct its foreign affairs.3 They also argue that it is fundamentally unfair for a company to have to defend itself in jurisdictions with which it has such a tenuous relationship.

Conversely, the plaintiffs (Respondents before the U.S. Supreme Court) argue that these state court decisions reflect an effort—consistent with prior U.S. Supreme Court decisions—to address the pernicious sideeffects of globalization. Specifically, both majority state court opinions noted that their decisions were, in part, influenced by several important policy concerns: (1) protecting their citizens from defective products; (2) providing their citizens with a forum where they can be compensated for injuries suffered; and (3) by holding foreign manufacturers liable, preventing further offshoring of U.S.-based manufacturers by ensuring that a manufacturer may not disclaim liability simply because a product was designed and/or manufactured overseas. What follows is a brief discussion of: (1) the tenets of jurisdiction at issue; (2) the relevant factual and procedural history of both suits; and (3) the potential implications of the Court's rulings.

Jurisdiction in a Nutshell

At its core, few legal doctrines are more significant than that of jurisdiction—the power of a court to hear the disputes of those appearing before it. Absent jurisdiction, a court has no legitimate basis for asserting its authority. Determinations of jurisdiction are based on the relationship between a defendant, the forum and the litigation.4 In the early days of our nation's founding, a state court's jurisdictional power was limited to its physical boundaries.5 But as the nation grew and commerce expanded, courts began to test the boundaries of their jurisdiction asserting authority over people and corporations situated outside their state borders.

In International Shoe Co. v. Washington,6 the U.S. Supreme Court examined whether a Delaware corporation—based in Missouri—could be sued in Washington state for failing to pay into the state's unemployment fund even though it was not physically present in Washington. International Shoe's only ''presence'' in Washington state was through a handful of salesmen who showed prospective customers the company's catalog. The Court, without using the terms ''general'' or ''specific'' jurisdiction, detailed the instances giving rise to a state's exercise of jurisdiction,7 and concluded that Washington state possessed personal jurisdiction over International Shoe because of the company's contacts with the state. Over the years, the U.S. Supreme Court sought to establish what constitutes the minimum contacts giving rise to jurisdiction. The Court's minimum contacts analysis later focused on the foreseeability and reasonableness of being sued in a given forum. Both foreseeability and reasonableness are court-created tests for determining contacts with a forum and thereby ensuring that a court has a sufficient, constitutional basis for entering a judgment against a foreign manufacturer. Absent such a basis, a court's decision violates a defendant's due process rights as the court's decision did not conform with traditional notions of fair play and substantial justice.8

The last time the U.S. Supreme Court examined the scope of personal jurisdiction was in 1987 with Asahi Metal Industry Co. v. Superior Court.9 Asahi arose from a products-liability suit involving an allegedly defective motorcycle tire. The Taiwanese tire-maker sought recovery from the Japanese valve maker, Asahi, in California state court. Asahi argued that it, a Japanese company that sold its valves to a Taiwanese company, lacked sufficient contacts with California to be sued there. The Court agreed that fundamental fairness dictated that Asahi could not be sued in California, but the Court was divided in its reasoning with Justice Brennan and Justice O'Connor each garnering four-person pluralities in support of their respective visions as to how placement of a product into the ''stream of commerce'' could subject a manufacturer to a court's authority. Justice Brennan's analysis focused upon continuous activities in a forum, specifically the foreseeable results arising from a company's placing of its products into the ''stream of commerce.''10 According to Justice Brennan, this foreseeability should be sufficient to create jurisdiction. Justice O'Connor articulated a ''foreseeability plus'' standard that requires additional purposeful actions—directed at the forum—above and beyond placing the product into the stream of commerce.11

The companion cases presently before the U.S. Supreme Court involve two different categories of personal jurisdiction. Nicastro involves the assertion of specific jurisdiction, whereas Brown involves general jurisdiction. Specific jurisdiction is based upon a party's contacts—arising from a specific controversy—in that forum. In contrast, general jurisdiction arises from ''continuous and systematic contacts'' with the forum that are unrelated to the controversy being litigated.12 With a finding of general jurisdiction, a defendant's contacts with a forum are so extensive that any lawsuit could be brought against the defendant there even when the instances giving rise to a suit did not occur there.13

J. McIntyre Machinery v. Nicastro

The New Jersey Supreme Court, noting that ''all the world is a market,'' applied the stream-of-commerce theory, and held that based on state long-arm rules, it possessed personal jurisdiction over a British manufacturer whose machine allegedly injured an employee in New Jersey even though the manufacturer never conducted business in New Jersey. The opinion was notable for the fact that it held a foreign manufacturer liable even though: (1) the manufacturer played no role in the marketing of its products in the United States; and (2) its distributor had engaged in a nationwide marketing plan that did not directly focus upon New Jersey. Further, the New Jersey Supreme Court determined that the British manufacturer lacked ''a presence or minimum contacts in this State—in any jurisprudential sense-that would justify a New Jersey Court to exercise jurisdiction''—instead concluding that the suit ''must sink or swim with the stream-of-commerce theory of jurisdiction.'' 14

In 2001, Robert Nicastro, an employee of Curcio Scrap Metal (''Curcio''), was operating a McIntyre 640 Sheer machine used to cut metal. Nicastro's hand was caught in the machine's blades and as a result four of his fingers were severed. The machine was manufactured by J. McIntyre Machinery (''McIntyre''), a British company located in Nottingham, England, but it was sold through an independent American distributor, McIntyre Machinery America (''McIntyre America'')—an Ohio corporation. McIntyre and McIntyre America were separate and distinct legal entities.

Curcio learned of McIntyre's machine while attending a recycling trade show in Las Vegas. McIntyre's president attended the Las Vegas trade show, but he did not engage in any marketing in New Jersey. When Curcio bought the McIntyre 640, it was from McIntyre America who shipped the machine from its offices in Ohio to New Jersey. Payment for the machine was provided to McIntyre America.

In September 2003, Nicastro sued McIntyre and McIntyre America under a product-liability theory, alleging that the sheer machine ''was not reasonably fit, suitable, or safe for its intended purpose''; ''failed to contain adequate warnings or instructions''; and ''its defective design 'allow[ed] the plaintiff to become injured while operating the machine in the normal course of his employment.' '' In response, McIntyre argued that New Jersey courts lacked jurisdiction over it. The trial court agreed with McIntyre, but the Appellate Division reversed permitting limited discovery to determine whether New Jersey possessed sufficient contacts over McIntyre. At the end of discovery, the trial court, again, granted McIntyre's motion to dismiss. The Appellate Division reversed, holding that the exercise of jurisdiction in New Jersey ''would not offend traditional notions of fair play and substantial justice'' and was justified under the stream-of-commerce plus rationale espoused by Justice O'Connor in Asahi.''15

The New Jersey Supreme Court, by a 5-2 margin, affirmed the Appellate Division and ruled in favor of Nicastro. In the process, New Jersey's high court stated that ''[t]oday, all the world is a market. In our contemporary international economy, trade knows few boundaries, and it is now commonplace that dangerous products will find their way, through purposeful marketing to our nation and into our State.''16 Both the majority and dissent provide detailed and scholarly—but ultimately widely divergent—analyses of the significant jurisdiction rulings focusing primarily upon the New Jersey Supreme Court's decision in Charles Gendler and Company v. Telecom Equipment Corporation17 and the competing four-member plurality opinions in Asahi Metal Industry Company v. Superior Court.18 Recognizing the ''modern truth'' of international commerce, the majority stated that ''[d]ue process permits this State to provide a judicial forum for its citizens who are injured by dangerous and defective products placed in the stream of commerce by a foreign manufacturer that has targeted a geographical market that includes New Jersey.'' 19

The court found that by implementing a 50-state marketing strategy—that did not specifically exclude New Jersey—McIntyre, consistent with traditional notions of fair play and substantial justice, not only knew but also intended to serve the New Jersey market.20 The majority focused on the expansion of jurisdiction caused by increasing trade and found that New Jersey, consistent with the long-held stream-of-commerce analysis in Gendler, has jurisdiction over manufacturers who knew ''of the distribution scheme through which it is receiving economic benefits in each state where its products are sold.''21 As a result, ''[i]f a manufacturer does not want to subject itself to the jurisdiction of a New Jersey court . . . it must take some reasonable step to prevent the distribution of its products in this State.''22 The Court left the contours of this ''reasonable step'' undefined.

The dissent vigorously argued that while the majority paid homage to the decisions in Gendler and Asahi, its ''[r]epeated quotations and soaring rhetoric'' mask a ''new and uncharted'' approach that ''stretches our notions about due process, and about what is fundamentally fair, beyond the breaking point.''23 The dissent's primary concern was that the majority's stream-ofcommerce analysis subsumed due process concerns about whether a defendant purposefully availed themselves of New Jersey.24 Further, the dissent concluded that the distribution stream that brought McIntyre's machine to New Jersey was a ''trickle'' and was not the ''regular and anticipated flow'' of goods anticipated by Justice Brennan in Asahi.25 Further, the dissent noted that, unlike in Gendler or Asahi, there is no evidence that McIntyre ever sought to send its products to New Jersey.26 The result, according to the dissent, is that by ignoring the requirement that a manufacturer purposefully direct its activities toward the forum state (New Jersey), the ''majority has contorted the stream of commerce theory to its own ends.''27

Argument Before the Supreme Court

Echoing Justice Hoen's dissent, McIntyre—in its petition for writ of certiorari—argued that the New Jersey Supreme Court's Nicastro opinion fails to provide outof- state parties with the necessary ''fair warning that a particular activity may subject [them] to jurisdiction of a foreign sovereign.''28 The argument is that after Nicastro, anyone—from a U.S. small business to a large foreign corporation—can be sued, under a theory of products liability, in New Jersey without any concern for the defendant's constitutional, due-process rights.29 Petitioner further argued that in its efforts to address ''the new reality'' of the global marketplace, the New Jersey Supreme Court by seeking to remove ''outmoded constructs of jurisdiction'' actually discards vital due process protections that require actual contact with the forum before one can be sued there.30 McIntyre asserted that the New Jersey Supreme Court's decision creates an ''unrestrained stream-of-commerce theory'' where the item sold creates jurisdiction wherever it resides, and the result is the creation of an unbounded ''New Jersey market for lawsuits directed at manufacturers wherever they may be.''31

According to Petitioner, such an approach runs contrary to the U.S. Supreme Court's jurisprudence— including both Justice Brennan's and Justice O'Connor's plurality opinions in Asahi—and would force the world to submit to New Jersey's sovereignty.32 Respondent argued that the two main arguments raised by Petitioner—(1) that the New Jersey Supreme Court departed from U.S. Supreme Court jurisprudence; and (2) that it created a new stream-of-commerce test—are unsupported, as the New Jersey Supreme Court's decision is consistent with the holdings in Gendler and Asahi.33 Respondent asserted that the New Jersey decision was consistent with Justice O'Connor's Asahi decision of ''stream of commerce plus.'' Specifically, the Court noted that McIntyre placed its machine in the stream of commerce plus: (1) created a nationwide distribution scheme; (2) attended national sales shows; (3) provided post-sales support; and (4) advertised in nationwide trade publications.34

Respondent criticized Petitioner's assertion that McIntyre lacked contacts with New Jersey noting that by virtue of its nationwide marketing approach McIntyre sought to be ''everywhere when it comes to sales and nowhere when it comes to liability.''35 Respondent asserted that the Asahi court never intended that a manufacturer—by utilizing a nationwide distribution system—''would be immune in every state.''36 Addressing the need for a forum, Respondent argued that New Jersey's decision offends neither due process nor traditional notions of fair play and substantial justice but rather is the logical application, in an increasingly globalized society, of the U.S. Supreme Court's jurisprudence.

Goodyear Dunlop Tires Operations v. Brown

The underlying state-court suit involved two 13-yearold North Carolina teens who died in a bus accident in France. The boys had been playing in a soccer tournament and were en route to the airport when one of the bus's tires—manufactured in Turkey by a Goodyear subsidiary—purportedly failed.37 Their estates sued Goodyear and a number of its international entities including Goodyear's Belgian, French and Turkish subsidiaries (''Foreign Manufacturers'') ''on a number of theories arising from an alleged 'negligent design, construction, testing, and inspection' of and a failure to warn about alleged latent defects'' in the Goodyear tire that failed.38

The Foreign Manufacturers sought to dismiss this suit, for lack of jurisdiction,39 but the trial court denied the motion, determining that defendants possessed sufficient contacts with North Carolina to warrant the ''[e]xercise of general jurisdiction,'' and that the exercise of jurisdiction was consistent with due process and traditional notions of fair play and substantial justice.40 The North Carolina Court of Appeals affirmed the trial court decision''41 even though the: (1) accident occurred in France42; (2) the tire in question was made in Turkey43; and (3) the tire was a regional tire—made for sale in Europe. The Court of Appeals recognized that the Foreign Manufacturers' ties with North Carolina were limited, noting that ''the record appears to be devoid of evidence that Defendants took any affirmative action to cause tires which they had manufactured to be shipped into North Carolina.''44

Despite the fact that the Foreign Manufacturers had no direct contacts with North Carolina, the Court of Appeals found sufficient contacts to assert general jurisdiction over them based on evidence in the record that: (1) the tires had U.S. Department of Transportation markings that permitted their sale in the United States; (2) from 2004 through 2006 over 40,000 tires, made by the Foreign Manufacturers, were shipped45 to North Carolina as part of Goodyear's ''continuous and highlyorganized distribution process''; and (3) the sale of these tires in North Carolina generated ''substantial revenue'' for the Foreign Manufacturers.46

Given these facts, the Court determined that:

(1) the Foreign Manufacturers had continuous and systematic contacts with North Carolina;

(2) the Foreign Manufacturers' activities in North Carolina are substantial;

(3) ''[t]he quantity of the defendants' contacts with North Carolina; the nature and quality of those contacts; the source and connection of the cause of action to the contacts; the interest of North Carolina in this cause of action and the convenience of the parties, all weigh in favor of the exercise of general jurisdiction over the defendants''; and

(4) exercise of general jurisdiction complies with Due Process and does not offend ''traditional notions of fair play and justice.''47

The Court's decision is notable in that it asserted that North Carolina possesses general jurisdiction—i.e., jurisdiction over suits based on facts not arising in the forum—over the Foreign Manufacturers, but it appeared to be exercising the stream-of-commerce test which has, up to this point, only been used in specific jurisdiction cases. Specifically, the Court of Appeals noted that the Foreign Manufacturers purposefully injected [the] product into the stream of commerce without any indication that [they] desired to limit the area of distribution of [the] product so as to exclude North Carolina[, therefore] . . . the courts of North Carolina may lawfully assert personal jurisdiction over'' the defendants. 48

The court concluded that a stream-of-commerce analysis revealed that ''thousands of tires manufactured by each of the Defendants were distributed in North Carolina . . . Thus, we believe that on the facts of this case, sufficient basis exists to support a finding of general personal jurisdiction.''49

Argument Before the Supreme Court

The manufacturers/Petitioners sought review of whether a foreign corporation—having no contacts with a forum state—could be subject to that forum's courts under a theory of general jurisdiction after it: (1) placed its products into the stream of commerce; and (2) another company distributed those products in the forum in question. They asserted that, should it be permitted to stand, the North Carolina decision would: (1) run afoul of the settled law requiring ''continuous and systematic contacts'' for general jurisdiction; (2) invite rampant forum shopping; (3) provide a disincentive for engaging in commerce with the United States; and (4) undermine foreign relations and international comity.50

Petitioners argued that it is well-settled law that general jurisdiction may only be asserted when a defendant's contacts with a forum are ''so extensive to be tantamount to [the defendant] being constructively present in the state to such a degree that it would be fundamentally fair to require it to answer in [the state's] court[s] any litigation out of any transaction or occurrence taking place anywhere in the world.''51 They asserted that permitting the North Carolina decision to remain would obliterate the ''strict limits'' undergirding general jurisdiction and would make every manufacturer vulnerable to suit anywhere their products are distributed by others. Petitioners hypothesized that the result of this decision would be that Goodyear's Turkish subsidiary could be forced to litigate disputes over Turkish leases or Chinese patents in North Carolina, or anywhere else that its products are distributed.

In reply, Respondents noted that this case is not about the stream of commerce but rather it is about general jurisdiction: Did these manufacturer defendants—who are wholly-owned subsidiaries of a U.S. corporation—possess the continuous and systematic contacts necessary for the courts of North Carolina to properly assert general jurisdiction over them? Arguing that Petitioners shipped thousands of the allegedly defective tires to North Carolina by means of Goodyear's corporate distribution system, Respondents asserted that Petitioners clearly could be sued for injuries caused by this tire model when it was sold in North Carolina; thus making it a matter of ''fundamental fairness'' that Petitioners—who were taking advantage of the North Carolina market—should be liable under a theory of general jurisdiction when North Carolina residents are injured by the same tire whether in France or North Carolina.52

Major Issues Affecting Business

While it is unclear how the Supreme Court will rule in either case, the fact that the Court heard argument in these cases concurrently suggests that the Court (or at least four members of it) recognize the need for clarification about when a foreign corporation's actions will subject it to a lawsuit. Providing this clarification will enable foreign businesses to better order their affairs.

What follows is an effort, in the interim before the Supreme Court's decisions are issued, to identify the major issues affecting businesses that the Supreme Court may address.

Where Is a Plaintiff to Go? A recurring theme raised by several Justices at oral argument in Nicastro was where should a plaintiff who has a personal injury claim against a foreign manufacturer file suit? A number of Justices raised concerns that foreign manufacturers, who utilized nationwide marketing plans, could avoid specific jurisdiction leaving plaintiffs, injured by a foreign manufacturer's product, without a U.S. forum for their claim.53 While counsel for McIntyre argued that Ohio was the proper domestic forum,54 this assertion appeared—at least to some of the Justices—to deviate from the basis for specific jurisdiction which arises from the connection between a defendant, the forum, and the claim being litigated.55 In an effort to provide plaintiffs with a forum and defendants with adequate notice, the Court is poised to clarify how (and where) a plaintiff may assert specific jurisdiction over a foreign manufacturer.

General Jurisdiction Does Not Arise From Placing Items Into the Stream of Commerce. While discussing the desire to provide a forum for its citizens, the North Carolina court's analysis turned largely upon its determination that it possessed jurisdiction over the Foreign Manufacturers due to their placement of their products into the stream of commerce. Stream-of-commerce analysis is the domain of specific jurisdiction, yet using this theory, the court claimed that North Carolina possessed general jurisdiction over the Foreign Manufacturers. Such an approach has profound implications as analysis traditionally used to determine whether an entity could be sued about a discrete matter can now, at least in North Carolina, be used to grant expansive jurisdiction over any and all claims against that entity. As the Court noted, ''general jurisdiction is all-purpose jurisdiction and for a corporation it's sort of like a residence for an individual.''56 Again, without knowing how the Court will ultimately rule, it is unlikely that the Court will sustain a hybrid scheme that would permit any state to assert general jurisdiction over a foreign company based upon nothing more than a stream-of-commerce theory.

Disclaiming Certain Jurisdictions Is Impractical and Undefined. While the New Jersey Supreme Court suggests that a business could avoid New Jersey courts by taking ''some reasonable step'' to explicitly avoid distribution into the state, such an approach makes no business sense and likely would be impossible to manage. Even more troubling is the fact that the Court provides no guidance about what would constitute such a ''reasonable step.'' The New Jersey Supreme Court's lack of guidance leaves businesses in limbo—forced to guess what actions they must take to avoid liability in New Jersey. Indeed, New Jersey's approach turns wellsettled specific jurisdiction analysis on its head. Specific jurisdiction arises from a party's actions and presence in a forum—the relationship between the defendant, forum and claim. Yet, New Jersey would base specific jurisdiction upon a party's failure to state its desire to avoid New Jersey. The result would be the attribution of specific jurisdiction by silence, at least where products are sold nationwide. Such an approach disregards any notion about contacts with or availment of a forum and will only result in more litigation as the parties argue over whether or not: (1) any steps were taken; or (2) the reasonableness of those steps.

Is the U.S. Supreme Court Really Concerned About Protecting Foreign Companies? While a number of Justices expressed concern about providing a forum for plaintiffs, at least one Justice expressed concern about the opposite problem—that by providing plaintiffs with a forum, the Court could be subjecting every small manufacturer in the world to any-state jurisdiction in the United States simply because an independent distributor sold their products here.57 The result of such a scheme is that every foreign manufacturer would have to understand the product liability laws in each of the 50 states. Citing the example of a women's cooperative in India, Justice Breyer hypothesized about the implications that would arise from subjecting every small manufacturer to specific jurisdiction in the United States based upon their distributor's actions. The Court will seek to strike a balance between the competing demands: providing a forum for injured parties while also ensuring that manufacturers (no matter their size) have adequate notice as to what actions will subject them to specific jurisdiction in a given forum.

Conclusion

Together, globalization and profound advances in information technology (especially the Internet) have greatly expanded the means by which commerce is conducted. As a result, goods are bought, sold, and shipped across state and national lines with increasing frequency and rapidity. With these increased interactions comes increased opportunity for something to go awry. When problems arise, litigation often follows. Both state-court opinions in Nicastro and Brown represent efforts to determine how jurisdiction—specific and general—should be applied to modern commerce. These decisions call into question long-settled standards and greatly expand the scope of jurisdiction. The result of these decisions is likely more confusion about the appropriate standards as well as more litigation.

The U.S. Supreme Court, in reviewing these two cases, has an opportunity to provide much-needed clarity about the instances and means by which jurisdiction—both specific and general—may be asserted. Nicastro and Brown collectively present a number of difficult issues for manufacturers, and their counsel, who seek to avoid jurisdictional pitfalls. As a starting point, businesses need to recognize that how they market a product in the United States—whether by independent distributor or via an internal corporate distribution chain—matters in terms of potentially creating jurisdiction. In advance of the Supreme Court's rulings, businesses should begin to examine the scope and nature of their distribution scheme in order to assess how and where they might be subject to jurisdiction.

Harris Neal Feldman is a partner at Schnader Harrison Segal & Lewis LLP in Cherry Hill, N.J. His practice emphasizes the defense of product liability and employment litigation in state and federal courts and agencies at the trial and appellate level.

Jeremy L. Hekhuis is an associate at Schnader Harrison Segal & Lewis in Philadelphia, where he focuses on financial services litigation and product liability matters.

Footnotes

1 See Petitioner's Brief at 18-19, McIntyre, No. 09-1343; Petitioner's Brief at 54; Goodyear, No. 10-76.

2 See Brief of Organization for International Investment and Association of Automobile Manufacturers Inc. as Amici Curiae in Support of Petitioner at 13-17; Goodyear, No. 10-76.

3 See Brief for the United States as Amicus Curiae Supporting Petitioners, Goodyear, No. 10-76.

4 See Helicopteros Nacionales de Colombia SA v. Hall, 466 U.S. 408, 414 (1984) (quoting Shaffer v. Heitner, 433 U.S. 186, 204 (1977)).

5 Pennoyer v. Neff, 95 U.S. 714, 722 (1878).

6 326 U.S. 310 (1945).

7 See 326 U.S. at 316-317 (noting that ''[t]o say that the corporation is so far 'present' there as to satisfy due process requirements, for purposes of taxation or the maintenance of suits against it in the courts of the state, is to beg the question to be decided. For the terms 'present' or 'presence' are used merely to symbolize those activities of the corporation's agent within the state which courts will deem to be sufficient to satisfy the demands of due process. L. Hand, J., in Hutchinson v. Chase & Gilbert, 2 Cir., 45 F.2d 139, 141.'').

8 Worldwide Volkswagen v. Woodson, 444 U.S. 286 (1980).

9 480 U.S. 102 (1987).

10 Id. at 117.

11 Id. at 112.

12 Helicopteros, 466 U.S. at 416.

13 See Hertz Corporation v. Friend, No. 08-1107 (U.S. 2/23/2010) (2010) (establishing that a corporation's nerve center is its principal place of business).

14 Nicastro, 201 N.J. at 60, 987 A.2d 575, 582.

15 Id. at 57, 987 A.2d at 580 (internal quotations omitted).

16 Id. at 52, 987 A.2d at 577.

17 102 N.J. 460, 508 A.2d 1127 (1986).

18 480 U.S. 102 (1987).

19 Nicastro, 201 N.J. at 53, 987 A.2d at 577.

20 Id. at 79, 987 A.2d at 593.

21 Id. at 76, 987 A.2d at 592.

22 Id.

23 Id. at 82, 897 A.2d at 595.

24 Id., 987 A.2d at 595.

25 Id. at 93, 987 A.2d at 601 (quoting Asahi, 480 U.S. at 117).

26 Id. at 94, 987 A.2d at 602.

27 Id. at 94, 987 A.2d at 602.

28 Petition for Writ of Certiorari at 10, McIntyre, No. 09- 1343 (filed May 3, 2010) (quoting Burger King v. Rudzewicz, 471 U.S. 462, 472 (1985) (internal quotations omitted)).

29 Id. at 12-13.

30 Id. at 15.

31 Id. at 15, 22.

32 Id. at 23.

33 Respondent's Brief in Opposition to Writ of Certiorari at 1, McIntyre, No. 09-1343 (filed Aug. 2, 2010).

34 Id. at 6.

35 Id. at 12.

36 Id. at 14 (internal quotations omitted).

37 Brown v. Meter, 681 S.E.2d 382, 384 (N.C. Ct. App. 2009).

38 Id. (internal quotes omitted).

39 At oral argument, it was noted that the Foreign Manufacturers' parent, Goodyear, had consented to jurisdiction in North Carolina. See Goodyear Dunlop Tires Operations v. Brown, Transcript of Oral Argument 36:22-25 (2011).

40 Id. at 387.

41 Id. at 388.

42 Id. at 385.

43 Id.

44 Id. at 392.

45 The court noted that the Foreign Manufacturers did not sell the tires in North Carolina.

46 Id. at 386.

47 Id. at 387.

48 Id. at 390.

49 Id. at 395.

50 Petition for Writ of Certiorari at 17–19, Goodyear, No. 10- 76.

51 Id. at 14 (quoting Purdue Research Found v. Sanofi- Synthelabo SA, 338 F.3d 773, 787 (7th Cir. 2003) (emphasis in original)).

52 Reply to Petition for Writ of Certiorari at 17-8, Goodyear,

53 See J. McIntyre Machinery Ltd. v. Nicastro, Trial Transcript of Oral Argument 7:20-8:7, 09-1343 (2011).

54 McIntyre's counsel also noted that a claim could have been brought against McIntyre in England. Id. at 11:8-14.

55 Justice Scalia noted that federal legislation could create a forum for claims against foreign manufacturers. Id. at 14:9- 14. Such a federal legislative fix is unlikely at this time because it has been repeatedly proposed, but not seriously considered, in successive Congresses. There is no indication that the 112th Congress will be more amenable to such legislation, yet such legislation may be the best means for crafting a comprehensive, global approach.

56 See Goodyear Dunlop Tires Operations v. Brown, Transcript 22:15-18.

57 See J. McIntyre Machinery Ltd. v. Nicastro, Trial Transcript of Oral Argument at 34:7-24.

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You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.