You can buy almost anything you want on line – and a whole lot of stuff you didn't know you wanted until you saw it online. And, if you can think of something you want that you can't find online, there are DIYers online just waiting to make you whatever it is you've dreamed up. Taxidermy postal-rat bookends – yep. A selfie-toaster – check. A set of wooden garden ducks wearing spotted wellies – that too. And this stuff ships from all over the world or from your own backyard. You want cosmetics from a store only in the U.K. No problem. Too busy to get to the market – your local grocery store probably has a delivery service. Add to that Door Dash and Uber Eats and a Sunday afternoon craving for tacos or Thai food never has to go unsatisfied again. It's not just a cliché to say the world has gotten smaller. Any company with an online presence can be viewed by millions of people in hundreds of countries. So, what does that mean for personal jurisdiction? Where is a company "at home" when they advertise online?
That was the issue in Finarelli v. Monsanto Co., 2019 U.S. Dist. LEXIS 160120 (M.D. PA Sep. 19, 2019). This is a non-drug/device products liability case related to the weed killer Roundup. Plaintiff also brought fraud and misrepresentation allegations against the company that handled the product's marketing. Id. at *1. There was no dispute that the marketing defendant's principal place of business was Missouri and that it was not registered to do business in Pennsylvania or owned property in Pennsylvania. Id. at *6. As an out-of-state defendant, plaintiff alleged the court had general jurisdiction over the marketing defendant.
As clarified by the Supreme Court in BNSF RY v. Tyrell, 137 S. Ct. 1549 (2017), general jurisdiction exists "when [a defendant's] affiliations with the State are so continuous and systematic as to render [defendant] essentially at home in the forum State." Exercising general jurisdiction over a foreign company, however, is an "exceptional case" that will be found only in a limited set of circumstances. Finarelli, at *10-13. Furthermore, the general jurisdiction question requires the court to look at the entirety of a company's activities. After all, "a corporation that operates in many places can scarcely be deemed at home in all of them." Id. at *14 (quoting Tyrell).
Plaintiff's sole argument to support general personal jurisdiction was that defendant ran "national advertising campaigns" in print and video "which appeared and/or were accessible in Luzerne County, Pennsylvania." Id. at *16. And, that defendant "maintained a public, national marketing website . . . which is advertised and/or accessible to consumers in Luzerne County, Pennsylvania." Id. The same could be said of just about every company that has a product to sell, including drugs and devices. That's just too broad. The Finarelli court agreed:
If national or global general advertising, marketing, and website activity which is present in Pennsylvania were found by this Court to suffice for the exercise of general jurisdiction, its ruling would run afoul of the Supreme Court’s directive . . . . Otherwise, ‘at home’ would be synonymous with ‘doing business’ tests framed before specific jurisdiction evolved in the United States.
Id. at *17. The Finarelli court was also armed with Third Circuit decisions finding that operation of a website and/or direct mail advertising to a state's residents was not sufficient to subject a defendant to jurisdiction. Id. at *17-18 (citing Toys "R" Us Inc. v. Step Two, S.A., 318 F.3d 446 (3d Cir. 2003) and Rocke v. Pebble Beach Co., 541 F.App'x 208 (3d Cir. 2013)).
Now, I wonder if bacon-flavored dental floss (available on Amazon in a 2-pack) is ADA approved?
This article is presented for informational purposes only and is not intended to constitute legal advice.
