jd20132013 wrote:quick question about Nicastro and what it changes (if anything)
I know you go with the narrowest opinion so what was the reasoning in the concurrence that's the takeaway and does it change how we look at Asahi?
It doesn't settle Asahi, but it does lend some momentum to the O'Connor plurality. The holding is the same as Asahi, that the company must purposefully avail itself of the forum, we just haven't had five justices set forth rules on what that entails.
The Kennedy four-vote plurality took the strict view on "purposefully availing" of the forum, like O'Connor did in Asahi. The court seems to be rejecting the weaker Brennan "stream of commerce" model, where companies that sell to distributors can be held to personal jurisdiction in forums where those distributors sell since the economic reality is that the parent has "purposefully availed" itself and therefore has minimum contacts. Instead, the Nicastro court wanted to see J. McIntyre avail itself of NJ, where the injury the suit was brought upon occurred, not just happen to sell to a US distributor who sold them in NJ. The O'Connor tests are: advertising in the forum and product designed for forum customers. Kennedy didn't use that language I don't think, but it's clear courts will require a significant amount to hold foreign corporations to jurisdiction here in the US for these stream of commerce type cases.
The Nicastro is the most modern minimum contacts case.
The Goodyear case is an example of general in personam jurisdiction, so in the last year there have been some interesting personal juridiction decisions.