Supreme Court Holds that “But-For” Causation Is Not Required for Specific Jurisdiction

9 Min Read By: Zachary Tripp, Pravin R. Patel, Brian Liegel, Elaina Aquila

The U.S. Supreme Court issued an important ruling in Ford Motor Co. v. Montana Eighth District Court, 592 U.S. ___ (2021), on March 25, 2021 holding that it is not necessary to have a “but-for” causal link between the defendant’s forum contacts and the plaintiff’s injury to obtain specific jurisdiction.

Under the Due Process Clause a defendant must have “minimum contacts” with the forum state seeking to exercise jurisdiction over the defendant such that exercising jurisdiction does not “offend traditional notices of fair play and substantial justice.”[1] General or “all purpose” jurisdiction is available only when a defendant is “at home” in the jurisdiction.[2] But specific or “case-linked” jurisdiction is available where suits “arise out of or relate to the defendant’s conduct with the forum.”[3]

In a string of recent opinions—largely written by the late Justice Ginsburg—the Supreme Court had consistently reversed state court decisions that improperly blurred the lines between these two distinct approaches to establishing jurisdiction.[4] In Ford Motor Co. v. Montana Eight Judicial District Court, the Supreme Court addressed the “related to” prong of specific jurisdiction.[5] Does it require a “but-for” causal connection, or does it have a broader reach?

The Supreme Court reviewed two consolidated cases, with facts straight from a law school exam. In the first, Markkaya Gullet was killed when she was driving a Ford Explorer in Montana and the tread separated from the tire, causing the car to crash. Her estate sued Ford in Montana, raising design defect and other claims. But Ford had not sold (or designed or manufactured) that specific Ford Explorer in Montana. Instead, Ford designed and made that car in Michigan then sold it in Kentucky. Gullet bought the car used, years later, through an attenuated chain of dealerships and prior owners. In the second case, Adam Bandemer was seriously injured after he was riding in a Crown Victoria that crashed in Minnesota and the airbag failed to deploy. Bandemer sued Ford in Minnesota, raising various products liability claims. But again, Ford had not designed, manufactured, or sold that specific car in Minnesota. Ford sold it in North Dakota, and it was then purchased used, years later, from a third party.

Ford argued that Minnesota and Montana did not have specific personal jurisdiction because, although Ford sold and advertised the same type of car in each state, it had not sold those particular cars involved in the accidents in those states. So there was no “but-for” causal link between Ford’s in-state conduct and the injury to the plaintiffs, which Ford asserted was necessary for each case to “arise out of or relate to” Ford’s forum contacts.

The Minnesota and Montana state courts each upheld personal jurisdiction over Ford. They reasoned that Ford’s in-state activity—particularly advertising and selling the same kinds of cars (although not either plaintiff’s vehicle)—“related to” the injury, and thus sufficient.[6] Ford then sought certiorari from the Supreme Court.

The Supreme Court granted the petition to decide the case during its 2019 Term, but it later rescheduled the case to the 2020 Term due to the COVID-19 pandemic. Due to this change, only eight members of the Court would ultimately hear the case. Justice Ruth Bader Ginsburg—the Supreme Court’s long-time procedural maven and author of most of the Court’s recent cases on personal jurisdiction—passed away just weeks before argument. Justice Amy Coney Barrett, the newest Justice, did not participate.

The Court Declines Ford’s Further Narrowing

While many observers expected the Supreme Court to continue narrowing the scope of personal jurisdiction, oral argument suggested that the Justices were skeptical of Ford’s position and the Court ultimately voted unanimously to reject Ford’s arguments. Justice Kagan authored the majority opinion, holding that the Due Process Clause does not require the defendant’s contacts with the forum state to be the “but-for” cause of the plaintiff’s injuries. Rather, the Supreme Court focused on Ford’s cultivation of the State market for its cars, explaining that “[w]hen a company like Ford serves a market for a product in a State and that product causes injury in the State to one of its residents, the State’s courts may entertain the resulting ” because it “relates to” those conducts.[7]

After providing a background of the Court’s personal jurisdiction jurisprudence, Justice Kagan’s opinion explained that “[n]one of our precedents has suggested that only a strict causal relationship between the defendant’s in-state activity and the litigation will do.”[8] Instead, the Court’s precedents require that a suit “arise out of or relate to the defendant’s contact with the .”[9] As Justice Kagan explained, the “first half of that standard [arise out of] asks about causation; but the back half [relate to] contemplates that some relationship will support jurisdiction without a causal .”[10] While the Court stated that the “relates to” standard “incorporates real limits,” the Court did not limit the standard to only those cases where there was proof of causation.[11] This decision aligns closely with Justice Kagan’s questions at oral argument, which focused on the role of the “relate to” requirement.

The Court likened the decision to its prior decision in World-Wide Volkswagen Corp v. Woodson, 444 U.S. 286 (1980), in which the Court had stated that Audi and Volkswagen were subject to jurisdiction in Oklahoma for “purposefully availing” themselves of the state auto market, even when the sale was from a dealer in New York. Here, Ford’s extensive contacts with the forum states were critical to the “relate to” analysis. Ford advertises “by every means imaginable,” sells the exact models at issue at dozens of dealerships in each state, and “works hard to foster ongoing connections to the cars’ owners” through warranty and repair offerings—including selling replacement parts and encouraging owners to buy .[12] The Court’s decision makes clear that these contacts with the state sufficiently “relate to” the car accidents at issue:  Ford had advertised, sold, and otherwise serviced the market for the exact car models at issue within the forum states.

Justice Kagan distinguished the Court’s prior decision in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), which held that specific jurisdiction was lacking in California when non-resident plaintiffs sued in California for injuries allegedly arising from use of the prescription drug Plavix, even though those plaintiffs neither bought or used Plavix in California nor were injured in California. In Ford, by contrast, the plaintiffs were residents of the forum state, drove the cars in the forum state, suffered injury in the forum state, and Ford serviced the market for those cars in the forum state.

The Future: Line Drawing

While the Court did not bite on a “causation-only” approach to specific jurisdiction, the decision leaves significant uncertainty, especially for businesses. The Court focused on Ford’s cultivation of the in-state market for its cars. But Ford and other major automobile manufacturers engage in unusually extensive activities to cultivate a market, including large-scale advertising as well as supporting dealerships, a second-hand market, and repair shops.

The Court suggested in a footnote that if “a retired guy in a small town in Maine carves decoys and uses a site on the Internet to sell them,” then he would not be amenable to sue in “any state” if harm arises from the .[13] But many businesses fall somewhere between the two extremes on a spectrum from an individual making an isolated online sale and a company like Ford. an online-only business that engages in significant retail efforts with wide-reaching advertisement, but lacks a footprint in the state and does not specifically target a state market. Or consider a company with more limited advertising targets, or a few retail facilities in only some specific states.

It is not clear how the “relates to” prong will be resolved in between those two poles. The Court emphasized that the prong imposes “real limits.”[14] But the Court explicitly declined to address a hypothetical different case in which Ford marketed the models in only a different state or region. Likewise, the Court explained that its decision did not address “internet transactions, which may raise doctrinal questions of their own.”[15] Court accordingly left those issues for another day.

Justice Alito wrote a separate concurring opinion agreeing that jurisdiction was proper, but explained that he considered “arise out of or relate to” to be overlapping requirements, not two independent bases for jurisdiction.[16] He further noted that the Court’s decision created uncertainty about the meaning of “relates to.” Justice Gorsuch, joined by Justice Thomas, also concurred in the judgment. Justice Gorsuch questioned the applicability of these “old boundaries” of personal jurisdiction to the 21st century. After detailing the Court’s personal jurisdiction jurisprudence over the centuries, Justice Gorsuch admitted that he finished “these cases with even more questions than [he] had at the start,” and urged future litigants and the lower court to help them “sort out a responsible way to address the challenges posed by our changing economy in light of the Constitution’s text and the lessons of .”[17]

In Brief: Real Limits Remain, But Uncertainty About What the Limits Are

In many respects, the decision leaves the personal jurisdiction doctrine unchanged: In a mine-run case in which the defendant’s in-state conduct is the “but-for” cause of the plaintiff’s injury, then the “arises out of or relates to” prong will be satisfied, and the focus of the inquiry will be on the “purposeful availment” prong, as it was before. But the decision leaves significant open questions when there is not a “but-for” causal link. Such a link is not required—it is enough that the injury “relate to” the forum contacts. But courts still must grapple with what it means to “relate to” those contacts.

While the decision establishes that businesses are likely to be amenable to suit in the states which they advertise, sell, and service their products, it leaves open the question of whether less pervasive contacts within a forum will suffice to meet the “relate to” prong. As the Court explained, the standard has “real limits.” Where exactly those “real limits” are located, however, is largely open for further development.

[1] BNSF Railway Co. v. Tyrrell, 137 S. Ct. 1549, 1558 (2017).

[2] Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).

[3] Bristol-Myers Squibb Co. v. Superior Ct. of Cal., San Francisco Cnty., 137 S. Ct. 1773, 1779–80 (2017).

[4] See, e.g., Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017); BNSF Railway Co. v. Tyrrell, 137 S. Ct. 1549 (2017); Walden v. Fiore, 134 S. Ct. 1115 (2014); Daimler AG v. Bauman, 134 S. Ct. 746 (2014); Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011).

[5] Ford Motor Co. v. Mont. Eighth Judicial Dist. Ct., No. 19-368, No. 19-369 (S. Ct. March 25, 2021).

[6] Bandemer v. Ford Motor Co., 931 N.W.2d 744 (Minn., July 31, 2019); Ford Motor Co. v. Mont. Eighth Judicial Dist. Court, 443 P.3d 407 (May 21, 2019). 

[7] Ford Motor Co., No. 19-368, No. 19- 369, slip op. at 1–2.

[8] Id. at 8. 

[9] Id. (emphasis in original).

[10] Id.

[11] Id. at 9.

[12] Id. at 11.

[13] Id. at 12 n.4.

[14] Id. at 9. 

[15] Id. at 12 n.4.

[16] Id. at 1–4 (Alito, J., concurring).

[17] Id. at 11 (Gorsuch, J., concurring). 

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