Since the advent of e-commerce, courts have had to confront the question of what activities are sufficient to subject an out-of-state website operator to the forum court's jurisdiction. Courts have generally agreed that simply hosting a website that is accessible in the forum is not sufficient to give rise to personal jurisdiction, and the question they have grappled with has been what else is needed.
In Briskin v. Shopify, Inc., an en banc panel of the Ninth Circuit Court of Appeals reversed a panel's decision from a year earlier and found that not much was required. Specifically, the Court found that knowingly placing a "cookie"—a digital location tracking device—on the plaintiff's computer located in the forum state was sufficient. In doing so, the Ninth Circuit has both deviated from other circuits, which have required a more stringent connection between the defendant's activities and the forum, and expressly overruled prior Ninth Circuit decisions that had required a showing that a defendant had targeted the forum more than other forums—otherwise known as differential targeting—before an out-of-state defendant could be subject to jurisdiction.
The decision raises questions about what other types of activities may be sufficient to establish personal jurisdiction over out-of-state website operators and diverges from other federal courts of appeals, creating an issue that may soon be ripe for the United States Supreme Court to step in and provide much needed guidance.
CGR Alert - U.S. Court of Appeals for the Ninth Circuit Once Again Weighs in on When Website Operators Are Subject to Personal Jurisdiction (pdf | 171.16 KB )
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
To subscribe to Cahill Publications Click Here
