Stirring the Jurisdictional Stew: Will California's 'Sliding Scale' Approach to Specific Personal Jurisdiction Withstand Due Process Scrutiny?

Abstract

This article analyzes and comments on the Supreme Court appeal in Bristol-Myers Squibb Company v. Superior Court of California, No. 16-466, argued on April 25, 2017. The Court will decide whether a state court, consistent with the Due Process Clause of the U.S. Constitution, may exert specific jurisdiction over a corporate defendant using a “sliding-scale” approach, where the defendant has insubstantial contacts with the state and there is no causal connection with the plaintiffs’ claims, but other resident and non-resident plaintiffs assert identical claims arising from the defendant’s nationwide conduct.

Bristol-Myers’s appeal arises from a state tort action in California concerning the prescription drug Plavix, a pharmaceutical that helps prevent cardiovascular problems by limiting blood clotting. The plaintiffs consist of 575 non-California residents, from 33 other states, including some resident Californians. California has the broadest form of a state long-arm statute, which states: “A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” Cal. Code Civ. Pro. § 410.10. Bristol-Myers contended that it was not subject to the state’s specific personal jurisdiction because the plaintiffs’ claims did not arise out of or relate to any contact that Bristol-Myers had with California.

In a 4-3 decision, the California Supreme Court affirmed an appellate court decision upholding jurisdiction over Bristol-Myers. The majority agreed that Bristol-Myers was not subject to California’s general jurisdiction, holding that Bristol-Myers was not “at home” in California, but was generally at home in Delaware. The court held that although Bristol-Myers’s ongoing activities in California were substantial, they fell short of establishing general jurisdiction.

Nevertheless, the court applied a test for specific jurisdiction, defined as whether (1) the defendant purposefully directed its activities at the forum state, (2) the plaintiffs’ claims arise out of or are related to these forum-directed activities, and (3) the exercise of jurisdiction is reasonable and does not offend traditional notions of fair play and substantial justice. Applying the three factors, the court held that the defendant’s general business activities in California were sufficient to support an assertion of specific jurisdiction.

In reaching this conclusion, the court utilized a sliding scale approach to assessing specific jurisdiction that involved balancing the intensity of the defendant’s forum contacts with the plaintiffs’ connection to these contacts. Employing this approach, the court opined that the defendant’s contacts do not need to be either the proximate or “but for” cause of the plaintiffs’ injuries. Instead, the more wide-ranging the defendant’s contacts, the more readily a court may find a connection sufficient to establish specific jurisdiction.

Three justices dissented. They disagreed that the plaintiffs’ claims could be said to arise out of or relate to Bristol-Myers’s California activities. They contended that the majority’s opinion undermined the essential distinction between general and specific jurisdiction. The dissenting justices noted that the majority’s analysis would expand the concept of specific jurisdiction to such a large universe of defendants as to make it indistinguishable from specific jurisdiction.

Keywords: Bristol Myers Squibb, California long arm statute, personal jurisdiction, specific jurisdiction, general jurisdiction, sliding scale, minimu contacts, International Shoe, Nicastro, McIntyre, Goodyear Tires, Walden, Fiore, Burger King,