Courts are increasingly being asked to decide when website operators are subject to personal jurisdiction, a potentially vexing problem, because websites generally lack a specific location and can be accessed from almost anywhere in the world. In two recent decisions, the United States Court of Appeals for the Ninth Circuit has provided guidance on when website operators are subject to jurisdiction and the relevant legal test that applies in such cases.

In July 2023, in Herbal Brands, Inc. v. Photoplaza, Inc., the Ninth Circuit held that selling a physical product from a website and causing the product to be delivered to the forum is sufficient to establish personal jurisdiction in the forum with regard to the sale of the product.1 In doing so, the court joined the Second and Seventh Circuits, which have reached similar conclusions.2 Several months later, in Briskin v. Shopify, the court held that extracting and retaining customer data and tracking online purchasers in a forum is not, by itself, a sufficient basis to establish personal jurisdiction in the forum.3

These two decisions by the Ninth Circuit were narrow and did not address other types of activities that would be sufficient to establish personal jurisdiction, including whether knowingly profiting from consumers in the forum state or having a certain threshold of sales and deliveries would confer jurisdiction, leaving those questions to be resolved in the future.

I. Background: Personal Jurisdiction Over Website Operators

To exercise personal jurisdiction over out-of-state defendants, courts typically must have specific jurisdiction or "case-linked" jurisdiction.4

In the internet context, courts have traditionally used the "interactivity" test first articulated in Zippo Mfg. Co. v. Zippo Dot Com, Inc.5 to determine whether a website operator is subject to personal jurisdiction for online activity. The Zippo interactivity test considers the degree of interaction between a website and its users.6 Under this test, a website that exchanges information with a user, such as payment information or some other transaction, is an "interactive website" and is more likely to be subject to the exercise of jurisdiction.7 A website that merely posts information accessible to viewers is a "passive" website and is less likely to be subject to personal jurisdiction in the forums where users access the site.8

In recent years, courts have moved away from the Zippo test. In 2014, the U.S. Supreme Court held in Walden v. Fiore that a defendant could only be subject to specific jurisdiction if there was a "relationship among the defendant, the forum, and the litigation" that arises out of or relates to contacts that the "defendant himself creates with the forum." Contacts created merely by interacting with residents of the forum are insufficient.9 The Walden Court did not address when a defendant's virtual contacts with a forum are sufficient to subject it to jurisdiction,10 but lower courts have since attempted to apply the lessons of Walden in the internet context.

Courts generally agree that simply hosting a website that permits orders to take place from anywhere in the country is not sufficient by itself to give rise to personal jurisdiction over such website operators in every state.11 Courts have taken varying approaches, however, when determining what additional activities give rise to personal jurisdiction.

For example, the Second and Seventh Circuits have held that hosting an interactive website and shipping a single item into a forum can confer jurisdiction over an online retailer in the forum with regard to the product sold.12 The Fifth and Eighth Circuits require something more — such as targeted advertising in the forum —to tie the defendant to the forum.13 The Fourth Circuit, in contrast, has adopted a more expansive view, holding that a website operator can be sued in a forum in which its website is frequently accessed.14

The Ninth Circuit applies a three-part inquiry to determine if the defendant had "minimum contacts" to warrant the exercise of specific jurisdiction: "(1) the defendant must either 'purposefully direct his activities' toward the forum or 'purposefully avail[ ] himself of the privileges of conducting activities in the forum;' (2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable."15 In AMA Multimedia, LLC v. Wanat, for example, a Nevada company accused a Polish national of copyright infringement, trademark infringement, and unfair competition for re-posting the company's copyrighted videos on his own website and geolocating unique advertisements to United States-based users of the website.16 The Ninth Circuit held that operating an interactive website was not enough to justify exercising jurisdiction and went on to analyze whether the defendant purposefully directed its activities at the forum under the "effects test" from Calder v. Jones. 17 The effects test requires a showing that the defendant "(1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state."18 The court in AMA Multimedia concluded that the defendant did not expressly aim intentional acts at the United States, because the website did not maintain a specific focus on the United States, as 80% of viewers were international.19

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1. 72 F.4th 1085, 1088–89 (9th Cir. 2023), cert. denied, 2024 WL 218786 (U.S. Jan. 22, 2024).

2. See Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 165, 171–72 (2d Cir. 2010) (holding that a defendant's conduct was purposefully directed toward New York because the defendant offered bags for sale on its website to New York customers and shipped at least one bag to a New York customer); NBA Properties, Inc. v. HANWJH, 46 F.4th 614, 624–25, 627 (7th Cir. 2022), cert. denied, 143 S. Ct. 577 (2023) (holding that the defendant purposefully directed its conduct at Illinois where it sold a single infringing product to an agent of the plaintiff who was an Illinois resident).

3. 87 F.4th 404, 409 (9th Cir. 2023).

4. Courts may also exercise general jurisdiction over out-of-state defendants, but this is relatively rare, as it requires "affiliations with the State [that] are so 'continuous and systematic' as to render [the out-of-state defendant] essentially at home in the forum State." See Daimler AG v. Bauman, 571 U.S. 117, 139 (2014). Courts may also exercise jurisdiction by consent. See Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 138 (2023) ("an out-of-state corporation that has consented to in-state suits in order to do business in the forum is susceptible to suit there" (quoting Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Min. & Mill. Co., 243 U.S. 93 (1917))).

5. 952 F. Supp. 1119, 1124–25 (W.D. Pa. 1997).

6. Id.

7. Id.

8. Id.

9. 571 U.S. 277, 284–86 (2014) ("Due process requires that a defendant be haled into court in a forum State based on his own affiliation with the State, not based on the 'random, fortuitous, or attenuated' contacts he makes by interacting with other persons affiliated with the State.").

10. Id. at 290, n.9.

11. See, e.g., Admar International, Inc. v. Eastrock, L.L.C., 18 F.4th 783, 787 (5th Cir. 2021); AMA Multimedia, LLC v. Wanat, 970 F.3d 1201, 1204–06 (9th Cir. 2020).

12. See Chloe, 616 F.3d 158, 165, 171–72; NBA Properties, Incorporated, 46 F.4th 614, 624–25, 627.

13. See, e.g., Admar International, Inc., 18 F.4th at 787–88, 788 n.1 (suggesting that the isolated sale of a single product to a forum resident would be insufficient to support the exercise of jurisdiction when the defendant did not solicit business through targeted advertising); Brothers and Sisters in Christ, LLC v. Zazzle, Inc., 42 F.4th 948 (8th Cir. 2022) (holding that a delivery of a single tee shirt was not sufficient to establish Missouri's jurisdiction).

14. See UMG Recordings, Inc., v. Kurbanov, 963 F.3d 344 (4th Cir. 2020).

15. See AMA Multimedia, LLC, 970 F.3d at 1208.

16. Id. at 1204–06.

17. Id. at 1204–06, 1208–09.

18. Id. at 1208–09 (citing Calder v. Jones, 465 U.S. 783 (1984)).

19. Id. at 1210–12. The court assessed defendant's contacts with the United States as a whole because it used Federal Rule of Civil Procedure 4(k)(2), known as the "federal long-arm statute," which permits the exercise of personal jurisdiction over an out-of-state defendant when the claim against the defendant "arise[s] under federal law," the defendant is not "subject to the personal jurisdiction of any state court of general jurisdiction," and "the federal court's exercise of personal jurisdiction . . . comport[s] with due process." Id. at 1207–08 (""The due process analysis under Rule 4(k)(2) is nearly identical to traditional personal jurisdiction analysis with one significant difference: rather than considering contacts between [defendant] and the forum state, we consider contacts with the nation as a whole.").

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