Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'antisemitisme

A majority of the en banc court (Judge W.A. Fletcher, joined by Chief Judge Schroeder and Judges Hawkins, Fisher, Gould, Paez, Clifton, and Bea) concludes that the district court had personal jurisdiction over the defendants. Of that majority, three judges (Chief Judge Schroeder, and Judges W.A. Fletcher and Gould) conclude that the action should be dismissed for lack of ripeness. Five judges (Judge Fisher, joined by Judges Hawkins, Paez, Clifton, and Bea) conclude that the case is ripe for adjudication. The three remaining judges (Judges Ferguson, O’Scannlain, and Tashima) conclude that the action should be dismissed because the district court lacked personal jurisdiction over the defendants.

A majority of the en banc court having voted therefor, the judgment of the district court is REVERSED and the case REMANDED with directions to dismiss the action without prejudice.

Yahoo!, an American Internet service provider, brought suit in federal district court in diversity against La Ligue Contre Le Racisme et L’Antisemitisme (“LI-CRA”) and L’Union des Etudiants Juifs de France (“UEJF”) seeking a declaratory judgment that two interim orders by a French court are unrecognizable and…

with whom O’SCANNLAIN and TASHIMA, Circuit Judges, join with respect to Part I, concurring in the judgment:

I concur that the District Court judgment in favor of Yahoo! should be reversed and the case dismissed, but I do so based on reasons other than those set forth by the majority. I do not believe that lack of ripeness is the proper ground to dismiss Yahoo!’s suit. Instead, I believe that the District Court did not properly exercise personal jurisdiction over the defendants and also should have abstained from deciding Yahool’s claims. Yahool’s suit should be dismissed, therefore, either under Rule 12(b)(2) or Rule 12(b)(6) of the Federal Rules of Civil Procedure.

I.

The District Court did not properly exercise personal jurisdiction over La Ligue Contre Le Racisme et L’Antisemitisme (“LICRA”) and L’Union des Etudiants Juifs de France (“UEJF”). LICRA and UEJF’s suit was not “expressly aimed” at California under the “effects” test of Calder v. Jones, 465 U.S. 783, 789-90 , 104 S.Ct. 1482 , 79 L.Ed.2d 804 (1984), which, I agree with Judge Fletcher, governs this case and may be appropriately applied to the French court orders.

An intentional act aimed exclusively at a location…

with whom FERGUSON and TASHIMA, Circuit Judges, join, concurring only in the judgment:

Our requirement that a defendant have “purposefully availed” himself of the protections and benefits of the forum state, or have “purposefully directed” his activities into the forum state, must be read in light of the Supreme Court’s admonition in Milliken v. Meyer, 311 U.S. 457 , 61 S.Ct. 339 , 85 L.Ed. 278 (1940), that the exercise of personal jurisdiction must comport with “traditional notions of fair play and substantial justice.” Id. at 463 , 61 S.Ct. 339 . Because I cannot agree that California’s exercise of personal jurisdiction over La Ligue Contre Le Racisme et L’Antisemitisme (“LICRA”) and L’Union des Etudiants Juifs de France (“UEJF”) comports with those basic principles, I respectfully dissent from the majority’s opinion while concurring in its conclusion that Yahool’s suit must be dismissed. For similar reasons, I concur in Judge Tashima’s concurrence and in Part I of Judge Ferguson’s concurrence.

I

A State’s jurisdiction is defined not by force or influence but by physical territory and its judicial power traditionally extended over only those persons and property within its…

with whom FERGUSON and O’SCANNLAIN, Circuit Judges, join, concurring in the judgment:

I concur in the judgment reversing and remanding with instructions to dismiss this action, but I dissent from the majority’s conclusion that personal jurisdiction exists over La Ligue Contre Le Racisme et L’Antisemitisme (“LICRA”) and L’Union des Etudiants Juifs de France (“UEJF”). I therefore concur in Part I of Judge Ferguson’s concurring opinion — that a district court located in California cannot exercise personal jurisdiction over LICRA and UEJF.

Because I believe that the district court lacked in personam jurisdiction, I would not reach the issues discussed in Part III of the majority opinion 1 — ripeness—and Part II of Judge Ferguson’s concurring opinion — whether, even if it had jurisdiction over the defendants, the district court should have abstained from deciding this case. I do believe, however, that Judge Ferguson’s eloquent discussion in Part II of the reasons why he would hold that abstention is proper further supports why personal jurisdiction is lacking in this case.

LICRA and UEJF (“defendants”) had only three contacts with California. These contacts were a cease and desist…

with whom HAWKINS, PAEZ, CLIFTON and BEA, Circuit Judges, join, concurring in part and dissenting in part:

I. Overview

Stated simply, the issue before us is whether a United States Internet service *1234 provider, whose published content has been restricted by a foreign court injunction, may look to the United States federal courts to determine the enforceability of those restrictions under the United States Constitution’s First Amendment. The French injunctive orders — backed by substantial, retroactive monetary penalties for noneompliance — require Yahoo! to block access from French territory to Nazi-related material on its website. 2 Some prohibited content is readily identifiable, such as Nazi artifacts or copies of Mein Kampf Much, however, is not. The orders impose the following sweeping mandate:

(Emphasis added.) In traditional First Amendment terms, this injunctive mandate is a prior restraint on what Yahoo! may post (or control access to) on its U.S.located server — imposed under principles of French law and in such facially vague and overbroad terms that even the majority does not know “whether further restrictions on access by French, and possibly American, users…

433 F.3d 1199 YAHOO! INC., a Delaware corporation, Plaintiff-Appellee, v. LA LIGUE CONTRE LE RACISME ET L'ANTISEMITISME, a French association; L'Union Des Etudiants Juifs De France, a French association, Defendants-Appellants. No. 01-17424. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 24, 2005. Filed January 12, 2006. Randol Schoenberg, Burris & Schoenberg, Los Angeles, CA; Robert A. Christopher, Coudert Brothers, Palo Alto, CA; Mark D. Lebow, Sokolow Carreras, New York, NY, for the defendants-appellants. Michael Traynor, Cooley, Godward, Castro, Huddelson & Tatum, San Francisco, CA; Robert C. Vanderet, O'Melveney & Myers, Los Angeles, CA, for the plaintiff-appellee. Ann Brick, ACLU, San Francisco, California; John B. Morris, Jr., Alan B. Davidson, Center for Democracy & Technology, Washington, DC, for amici American Booksellers Foundation for Free Expression, et al. Jodie L. Kelley, Brian Hauck, Jenner & Block, Washington, DC; Stephen A. Bokat, Robin S. Conrad, Joshua A. Ulman, National Chamber Litigation Center, Washington, DC, Robert Corn-Revere, Davis Wright Tremaine LLP, Washington, DC, for amici Chamber of Commerce of the…