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Doing Business in Every State? Briskin Says Focus on a Particular State Is Not Necessary for E-Commerce Jurisdiction

By George C. Harris and Emily Kirk

This update to our August 2024 blog, “Ninth Circuit En Banc Review of Personal Jurisdiction Over Internet-Based Businesses: the ‘Expressly Aimed’ Requirement,” analyzes the April 21, 2025 en banc decision by the Ninth Circuit Court of Appeals reversing the district court’s dismissal of Brandon Briskin’s complaint in Briskin v. Shopify, Inc.

In the decision, the Ninth Circuit clarified the application of the specific personal jurisdiction test to internet-based businesses. It reversed the lower court’s dismissal of Briskin’s complaint, holding that Shopify could be sued in California, based on its targeted commercial activity within the state, under the traditional three-prong test for specific personal jurisdiction articulated in Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004).

Under the first two prongs of the test, the court found that Mr. Briskin had sufficiently alleged that:

  1. Shopify purposefully directed its activity in California; and
  2. his claims arose out of those California-related commercial activities.

Under the third prong, the court found that Shopify had failed to meet its burden to show that California’s exercise of specific personal jurisdiction would be unreasonable.

The ruling also reversed the district court’s dismissal of Briskin’s complaint on the ground that it gave the Shopify defendants fair notice of claims against them under Federal Rule of Civil Procedure 8(a)(2).

This decision is a significant development in the evolving legal framework governing online platforms and cross-border consumer litigation in the United States.

Purposeful Direction: The Express Aiming Requirement Does Not Demand a “Forum-Specific Focus”

In its en banc decision, the Ninth Circuit applied the Calder v. Jones, 465 U.S. 783 (1984),“ effects test” to determine whether the alleged tortious conduct in Briskin—Shopify’s privacy violations—was purposefully directed at California. Calder requires that a plaintiff must show that the defendant:

  1. committed an intentional act,
  2. expressly aimed at the forum state, and
  3. knew the act would likely cause harm in that state.

The court clarified that a “forum-specific focus” is not required to find that a defendant has “expressly aimed” its business at the forum state, overruling AMA Multimedia, LLC v. Wanat, 970 F.3d 1201 (9th Cir. 2020).

The en banc court explained that AMA misinterpreted earlier precedent, which had considered a defendant’s specific exploitation of the California market for commercial gain in determining express aiming, but “did not hold that this was a prerequisite for a finding of express aiming.” (En Banc Opinion at 34.) 

The court reasoned that requiring a forum-specific focus to find express aiming would create several problems.

  1. It would contradict longstanding precedent that allows a business to be subject to suit in a jurisdiction where it has only indirect market involvement.
  2. It would create a loophole for companies to evade jurisdiction in any state, despite conducting business activities nationwide and causing harm to a state’s residents.

Citing Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 592 U.S. 351 (2021), the court rejected the argument that a company that operates nationwide can only be sued in its state of incorporation or principal place of business.

On this ground, the court rejected Shopify’s “forum-agnostic” argument— that its approach to collecting personal data without focus on any particular jurisdiction should not subject it to specific personal jurisdiction anywhere its e-commerce business is available to consumers. The court held that Briskin had sufficiently alleged that Shopify expressly aimed its conduct at California through extracting, storing, and distributing California consumers’ data in violation of California laws for its profit. Whether or not the California market was Shopify’s particular focus does not change the analysis. (En Banc Opinion at 30-31.)

Implications of the Ninth Circuit’s Overruling of AMA

The Ninth Circuit’s en banc decision in Briskin overturns AMA Multimedia and firmly invalidates the argument that an e-commerce business must demonstrate a forum-specific focus to be subject to specific personal jurisdiction.

Under Briskin, e-commerce companies can no longer claim they are immune from suit in a particular state because their business is directed everywhere. The court clarified that an e-commerce business may be subject to specific personal jurisdiction in any forum where the business has contacts—even if those contacts are only electronic—and has purposefully directed activity in a substantial way toward that the forum.

The decision reaffirms the longstanding “something more” requirement from Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 418 (9th Cir. 1997), which requires more than passive website access to establish express aiming. The court emphasized that multiple factual scenarios can satisfy the “something more” requirement and provided a helpful review of facts the Ninth Circuit has determined satisfy the requirement. (See En Banc Opinion at 22-29.)

Summary

Briskin makes clear that plaintiffs may pursue claims against an e-commerce company for alleged tortious conduct in states where it has directed its conduct, even in states where the company does not specifically focus its business. This ensures that a foreign or out-of-state company doing business in all 50 states cannot evade suit in any particular state simply because it does business to an equal degree in all of them.

Moving forward, e-commerce businesses should recognize that they may be subject to personal jurisdiction in forums other than their principal place of business or state of incorporation. After Briskin, having a forum-specific focus is not a prerequisite for finding express aiming under the standard set in Calder.

Key Takeaways: 

The Briskin decision lowers the bar for plaintiffs to establish specific jurisdiction in digital tort cases and expands the accountability landscape for internet-based companies.

It confirms that e-commerce companies cannot avoid personal jurisdiction simply because their operations are nationwide. Courts in the Ninth Circuit will look at whether a business directed its conduct—intentionally and with foreseeable effects—toward a forum, even without a concentrated or exclusive focus there.

Online businesses should reassess their exposure to litigation in jurisdictions where they collect data, engage consumers, or otherwise interact with state residents.

Case citation:  Briskin v. Shopify, Inc., No. 22-15815 (9th Cir. April 21, 2025)

George C. Harris is a partner who represents clients in a wide range of civil litigation and criminal defense matters, including complex and high-profile cases at trial and on appeal in state and federal court and in commercial arbitration, both domestic and international. Emily Kirk is an associate.