72 F.4th 1085
9th Cir.2023Background
- Herbal Brands (Delaware, principal place Arizona) sued New York-based sellers who operated Amazon storefronts for allegedly selling unauthorized Herbal Brands products (trademark infringement, false advertising, tortious interference).
- Plaintiff alleged defendants sold thousands of infringing products nationwide (25,700+ by July 2021) and sold to Arizona residents; plaintiff sent cease-and-desist letters notifying defendants of harm in Arizona.
- Defendants moved to dismiss for lack of personal jurisdiction; the district court granted dismissal and denied jurisdictional discovery, finding no evidence of express aiming at Arizona.
- On de novo review, the Ninth Circuit reversed, holding that selling physical products via an interactive website and causing delivery to the forum in the seller’s regular course of business can suffice for specific jurisdiction under purposeful-direction/Calder analysis.
- The court found the first and second Calder elements met (intentional act; harm likely in forum), and that “express aiming” is satisfied when sales via an interactive site are regular (not isolated) and cause delivery to the forum; defendants failed to show exercising jurisdiction would be unreasonable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Arizona has specific personal jurisdiction over nonresident online sellers | Sales via interactive Amazon storefront to Arizona residents (regular course) + cease-and-desist letters show express aiming and causation | Mere operation of an interactive website does not equal targeting; no evidence defendants expressly aimed at Arizona | Reversed: sales of physical products via interactive site that cause delivery to forum in seller’s regular course of business can establish express aiming and specific jurisdiction |
| Proper analytical test (purposeful availment vs. purposeful direction/Calder) | Claims are intentional/tort-like (trademark, false advertising, tortious interference) so purposeful-direction/Calder applies | Argue web-based contacts not directed at forum; prefer availment framework | Applied purposeful-direction/Calder because the claims are intentional/tort-like |
| Whether a quantitative threshold of sales to the forum is required | No numeric threshold; requirement is that sales occur in the seller’s regular course of business, not isolated transactions | Jurisdiction should require targeting or substantial number/percentage of forum sales | No bright‑line number; regular course of business (not random/isolated sales) suffices; court rejects arbitrary sales-count rule |
| Whether exercising jurisdiction is reasonable | Forum (Arizona) has interest; defendant burden not shown; fairness factors balance in favor of jurisdiction here | Exercise would be burdensome, allow manufactured jurisdiction, and chill e-commerce | Defendants failed to rebut reasonableness; fairness concerns are addressed in prong three and may defeat jurisdiction in other fact patterns, but not here |
Key Cases Cited
- Int’l Shoe Co. v. Washington, 326 U.S. 310 (due process "minimum contacts" standard)
- Calder v. Jones, 465 U.S. 783 ("effects" test for purposeful direction)
- Walden v. Fiore, 571 U.S. 277 (focus on defendant’s contacts with the forum)
- Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797 (Ninth Circuit specific-jurisdiction framework)
- Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218 (interactive website analysis; "something more" rule)
- Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (carrying on part of business in forum supports jurisdiction)
- World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (stream‑of‑commerce and foreseeability principles)
- Boschetto v. Hansing, 539 F.3d 1011 (isolated online sale insufficient for jurisdiction)
- Ayla, LLC v. Alya Skin Pty. Ltd., 11 F.4th 972 (treating trademark claims as tort‑like for jurisdiction)
- Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064 (burden shifts to defendant to show unreasonableness)