In 2017, the Supreme Court in Bristol-Myers Squibb Co. v. Superior Court of California addressed the issue of specific jurisdiction in class action lawsuits. 582 U.S. 255 (2017). The case involved over 600 plaintiffs, including residents and nonresidents of California, who joined a lawsuit alleging product defects in a medication manufactured by Bristol-Myers Squibb (BMS). In response, BMS filed a motion to dismiss the nonresident plaintiffs’ claims for lack of personal jurisdiction. The Court agreed, holding that because the claims would remain the same with the exclusion of the nonresident plaintiffs, there was no basis for asserting specific jurisdiction over them. This decision reinforced the standard established in International Shoe Co. v. Washington that a defendant must have sufficient minimum contacts with the forum state for the court to assert personal jurisdiction. 326 U.S. 310 (1945).

Karen Hepp is a news anchor for Fox 29 in Philadelphia. In 2019, she filed a lawsuit in the Eastern District of Pennsylvania against Facebook after discovering that the company was advertising a dating website using her image. The claim pertinent here was a violation of Pennsylvania’s right of publicity law. Since Hepp was a public figure who depended on a carefully cultivated image for her success, she argued that her image on a dating website without her authorization jeopardized that image. The District Court dismissed her state law claims on the basis that Section 230 only exempted federal intellectual property claims from immunity.

Are state law claims for violation of a right to publicity immunized from lawsuits by Section 230 of the CDA?

The question plaguing the circuit courts is whether the DHS’s expedited removal procedures allow aliens to contest only the factual basis for their removal, and not to raise legal arguments. If so, then a non-citizen has an arguable claim that he has not failed to exhaust his remedy; in other words, because there was no remedy to exhaust, the non-citizen is entitled to appellate review.

Based on this ruling by the CAFC, TC Heartland has begun the process of SCOTUS review, relying on the argument that CAFC has unilaterally overturned Supreme Court precedent in neglecting the holding of Fourco. As the amici briefs churn into the SCOTUS docket for this case, it raises the question of just where the Supreme Court will fall on this.