Today's Yahoo Appellate Decision

[David Farber <dave () farber net>]

Begin forwarded message:

From: Joel Reidenberg <reidenberg () sprynet com>
Date: January 12, 2006 5:13:48 PM EST
To: dave () farber net
Cc: ip () v2 listbox com
Subject: Today's Yahoo Appellate Decision

Dave,

In the latest skirmish in the legal battle between the French and US  
courts over Yahoo's display of Nazi memorabilia to French Internet  
surfers, the US federal appeals court reversed and dismissed Yahoo's  
earlier declaratory judgment against the enforceability of the French  
order in the US. (http://www.ca9.uscourts.gov/ca9/newopinions.nsf/ 
3DF703F416DC0608882570F40006DDCF/$file/0117424.pdf?openelement)

Yahoo lost its US action on technical legal grounds-- 3 judges said  
the US court had no personal jurisdiction over the French defendants  
and 3 judges said that Yahoo was pre-mature in bringing the action to  
a US court because Yahoo.   Thus, there was a majority to reverse and  
dismiss.   There was no majority on the 1st Amendment issue so that  
question remains open.

Nevertheless, there was a majority on personal jurisdiction that held  
the French parties were subject to suit in the US on the basis of  
three contacts-- a cease and desist letter sent to California,  
service of process for the French proceeding in the US, and service  
of the French court order in the US.  The latter-- service of the  
French order-- was the main contact for the court.    This is a  
radical and troubling expansion of US jurisdiction that may put US  
companies at risk abroad.  In essence, the majority would allow any  
US company that loses a law suit abroad to bring the suit back to the  
US for a second bite at the apple.   Foreign courts considering  
comity will now feel justified in doing the same thing to US  
companies who sue foreignors in the US-- ie make US companies defend  
a favorable American court judgment against the foreignor in the  
foreignor's home forum.

By the way, the court did take note of the mis-translation of the  
French opinion that was first identified in my article, "Technology  
and Internet Jurisdiction," 153 Univ. of Penn. L. Rev. 1951 (2005)   
http://ssrn.com/abstract=691501

Regards,

Joel

******************************************** Joel R. Reidenberg  
Professor of Law Fordham University School of Law 140 West 62nd  
Street New York, NY 10023 Tel: 212-636-6843 Fax: 212-636-6899 Email:  
<reidenberg () sprynet com> Web page: <http:// 
reidenberg.home.sprynet.com>  
********************************************

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