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Wednesday, May 31, 2017

SCOTUS Symposium: Justice Gorsuch on personal jurisdiction

Cassandra discusses then-Judge Gorsuch's opinion in Dudnikov, finding jurisdiction in Colorado under the Effects Test based on a letter sent to California that affected the plaintiff's behavior and business in Colorado. Cassandra raised the possibility that the Effects Test was silently overruled in Walden.

I doubt Walden was a stealth overruling of Calder, but it did narrow it one respect: Whereas many lower courts had said that the test was satisfied if the defendant directed conduct at a state knowing it would affect the plaintiff there, Walden requires that intentional conduct be aimed at the forum, not only at the plaintiff (who happens to be in or from the forum). In other words, knowledge that the plaintiff is in or from the forum or might feel effects in the forum is not enough when conduct is undertaken elsewhere; the intent of the outside condct must be to hit the forum.

The question (which I have used as a hypo in class) is whether Dudnikov comes out the same way after Walden. The point of the cease-and-desist letter was to stop the plaintiff from doing things in CO. So did the defendant direct his conduct at Colorado in purposefully trying to stop the plaintiff's business there? Or did he only direct his conduct at California, with knowledge of effects in CO?

Posted by Howard Wasserman on May 31, 2017 at 09:31 AM in 2018 End of Term, Civil Procedure, Howard Wasserman | Permalink


I represented the petitioner (the defendant) in Walden. FWIW, we always thought that Dudnikov was a good case for us; we certainly didn't think it was inconsistent with the approach we were urging the Court to take, because (IIRC) of the emphasis on how the defendants wanted to cause a result in CO. We also very strongly believed that our position didn't require overruling Calder at all, but rather that lower courts had read Calder (which was, to be fair, a pretty ambiguous opinion) too broadly.

Posted by: Dan Epps | May 31, 2017 11:29:12 AM

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