The Volokh Conspiracy
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A new personal jurisdiction case from the Texas Supreme Court (or 'Killing Calder Softly')
Here's a nice personal jurisdiction decision (TV Azteca v. Ruiz) from the Texas Supreme Court, with background facts lurid enough to assure that it will make it into the casebooks:
Mexican recording artist Gloria de Los Angeles Trevino Ruiz, popularly known as Gloria Trevi (and sometimes referred to as "Mexico's Madonna"), now lives in McAllen, Texas. Near the height of Trevino's fame in the late 1990s, she was accused of luring underage girls into sexual relationships with her manager. Authorities arrested Trevino and her manager in Brazil on charges of sexual assault and kidnapping. Trevino spent nearly five years in prisons in Brazil and Mexico, but a Mexican judge ultimately found her not guilty and dismissed all charges in 2004.
In the late 2000s, as the ten-year anniversary of the scandal approached, various Mexican media outlets ran stories discussing the events and Trevino's activities following her acquittal. In 2009, Trevino filed this lawsuit in Hidalgo County, Texas, alleging that several media defendants defamed her in their broadcasts.
The defendants are two Mexican television broadcasting companies—TV Azteca and Publimax—that produced, and aired, the allegedly defamatory broadcasts. Both "are Mexican corporations, are not registered in Texas or any of the United States, and do not have any offices, employees, agents, or representatives in Texas." The broadcasts were aired in Mexico—but broadcasting signals doing what broadcasting signals do, they did find their way over the border into Texas, where, allegedly, they caused Trevino actionable harm.
The defendants said: That's not enough to subject us to the personal jurisdiction of the court. Merely engaging in an activity that can, foreseeably, have effects in another jurisdiction (i.e., broadcasting signals that we know can and do cross the border into Texas), and that may cause harm there does not satisfy the requirement, imposed by the Due Process Clause, that courts may exercise personal jurisdiction only over parties that have "purposefully availed themselves of the privilege of conducting activities within the forum state [i.e., Texas], thus invoking the benefits and protections of its laws."
So the question presented was, in the court's words: "Whether a television broadcast that originates outside Texas but travels into the state can support personal jurisdiction over the broadcaster in Texas."
The answer: No, it cannot. Siding with the defendants on this point, the court held that "the mere fact that Petitioners' signal reaches into Texas and that Petitioners know it does do not establish that Petitioners purposefully sought to serve the Texas market through their broadcasts."
That's an important holding (and a correct one, in my view), because it pretty soundly rejects one of my least favorite Supreme Court decisions, Calder v. Jones, which has often been read to support personal jurisdiction in precisely these circumstances.
In Calder, the court upheld a California court's exercise of personal jurisdiction over the authors of an article that was distributed in California and that allegedly defamed a California resident, Shirley Jones. The authors of the article lived in Florida and had no contacts with California other than (a) the knowledge that Jones lived in California (and that therefore the "effects" of the publication would be felt in California) and (b) the distribution of the allegedly defamatory comments in California.
I've railed about Calder before (here and here). It's absurd to say that you have "purposefully availed yourself" of the benefits and obligations of the law of, say, New Mexico merely because you have said nasty things—even defamatory things—about someone whom you happen to know lives in New Mexico and those remarks find their way into New Mexico. That has always struck me as profoundly odd and misguided, and a particularly inappropriate and havoc-wreaking jurisdictional principle for an age in which all of our remarks fly into (and cause effects in) every jurisdiction in the country (and abroad) in an instant.
Calder has indeed wreaked all sorts of havoc in the law, and though it has been the subject of efforts of many lower courts (see here and here) to kill it once and for all, it does seem to rise up, zombie-like, from time to time to haunt us. The Supreme Court really should take it out of its misery and overrule it, but in the meantime it's nice to see other courts taking the task on themselves and producing another nail for the coffin.
The Texas court nonetheless finds that these defendants are subject to personal jurisdiction in Texas, because their contacts with Texas consisted of more than merely sending their broadcasts into the state. They "took specific and substantial actions to take advantage of the fact that the signals reach into Texas and to financially benefit from that fact."
Trevino submitted evidence that Petitioners made substantial and successful efforts to benefit from the fact that the signals travel into Texas, as well as additional efforts to promote their broadcasts and expand their Texas audience. . . . First, Trevino points to evidence that Petitioners actually physically "entered into" Texas to produce and promote their broadcasts. . . . Second, Trevino points to evidence that Petitioners derived substantial revenue and other benefits by selling advertising time to Texas businesses. . . . And third, Trevino points to evidence that Petitioners made substantial and successful efforts to distribute their programs and increase their popularity in Texas, including the programs in which they allegedly defamed Trevino.
The court concluded that the evidence of this additional activity over and above merely broadcasting the signals—"that defendants physically 'entered into' Texas to produce and promote their broadcasts, derived substantial revenue and other benefits by selling advertising to Texas businesses, and made substantial efforts to distribute their programs and increase their popularity in Texas"—supported a finding that "defendants purposefully availed themselves of the benefits of conducting activities in Texas, such that they could reasonably anticipate being haled into court there."
Sounds reasonable to me—they really targeted their activities at and into the forum state, and can be held to account for those activities. That's a far cry from Calder's "effects test," and seems, to my eyes, to strike a pretty reasonable balance on these facts.