Questions about McIntyre
1) Doesn't the plaintiff have a cause of action against the distributor (McIntyre Machinery America)? If so, what's the problem?
2) What is the relationship between McIntyre Ltd. and McIntyre Machinery America anyway? Might that make a difference?
3) Whose opinion is controlling for lower courts? Kennedy’s? Breyer’s? Ginsburg’s?
4) Let’s begin with Kennedy’s opinion. Kennedy apparently adopts
Justice O’Connor’s approach in Asahi, which requires that a defendant
who sells its product in the forum state through an intermediary be
subject to PJ only if it engages in conduct purposefully directed at or
targeting the forum state. How would McIntyre have done that? Is this
really a meaningful criterion when a foreign manufacturer may not know
what the particular states in the US are? Is knowledge of geography a
requirement for PJ?
5) Does it really make sense that the US could have PJ over McIntyre
but no state would – especially when there was no federal law that
McIntyre might have violated (only state or UK law)?
6) Imagine that all of the products McIntyre sold in the US (through
McIntyre Machinery America) were sold in NJ but that the facts of the
case were otherwise the same. Wouldn’t Kennedy still say that there was
no PJ in New Jersey?
7) Now for Breyer’s opinion. What does Breyer offer as an alternative
to Kennedy’s (or Ginsburg’s) approach? To what extent does he rely on
McGee factors? Gan McGee factors answer the question of whether NJ has
power over the defendant?
8) Breyer claims that there would be PJ if there was a “regular flow”
or “regular course” of sales in New Jersey. Why would that give NJ
power over the defendant?
9) Now for Ginsburg. Is it really true that Kennedy and Breyer have
turned “the clock back to the days before modern long-arm statutes when
a manufacturer, to avoid being haled into court where a user is
injured, need only Pilate-like wash its hands of a product by having
independent distributors market it”?
10) Ginsburg says “[N]o issue of the fair and reasonable allocation of
adjudicatory authority among States of the United States is present in
this case. New Jersey’s exercise of personal jurisdiction over a
foreign manufacturer whose dangerous product caused a workplace injury
in New Jersey does not tread on the domain, or diminish the
sovereignty, of any sister State.” Does that matter?
11) What would Ginsburg say about Breyer’s Appalachian potter example?