Wrap Up and Review of Personal Jurisdiction

     Personal jurisdiction matters because it constitutes an essential step for US courts to assert their power over defendants. For US defendants, there will almost certainly be some US location where suit can proceed. For foreign defendants, however, it may well be that inability to establish personal jurisdiction in a given forum will leave plaintiffs no recourse at all in the United States.

     As a result of this, US personal jurisdiction must be understood not just by US litigators but by foreign lawyers structuring their clients' activities. Cases such as Nicastro and Asahi should make clear to you that the US Supreme Court has made it possible for foreign entities to structure their interactions with the US in ways that reduce the chance of being pulled into US courts. Think for a moment about the Chinese Drywall cases. Do you think there are ways that drywall could have been sold into the US in ways that, at least under the approaches of Justice Kennedy and Justice O'Connor, would have left US plaintiffs with no access to US courts? If those companies had had a great lawyer advising them on their business decisions, do you think they could have avoided the significant settlement that in the end they paid?

     This matters to wise lawyers because being sued in one jurisdiction is not necessarily the same as being sued in another jurisdiction. Non-US courts often do not offer aggregate litigation such as class actions, and may also tend to award lower damages, putting defendants in a stronger position if they can evade US personal jurisdiction. The US process also often costs more than litigation in other countries, with higher per hour legal fees and significant expenditures related to pre-trial discovery and pre-trial motions.

     Given a fact pattern, you should be able to work through each of the possible bases for personal jurisdiction, asking if they are satisfied. You should be able to analyze that fact pattern through both 'stream of commerce' approaches, and also should be able to look at it through the lens of each of the three opinions in Nicastro. You should understand to what extent 'effects' in the forum might or might not be a basis for jurisdiction.