Posting on social media about businesses located in another state could give rise to personal jurisdiction in that state, according to a recent landmark opinion by a sharply divided Montana Supreme Court. In Groo v. Montana Eleventh Judicial District Court, the Court considered whether several Facebook posts made by Melissa Groo, a New York-based wildlife-photography ethicist, concerning Triple D Game Farm, a wildlife-photography farm in Montana, supported personal jurisdiction in an action by Triple D against Groo in Montana state court for tortious interference with contractual relations and prospective economic advantage. In the posts, Groo had tagged individuals and companies doing business with Triple D, three of whom resided in Montana, and encouraged them to cancel their business with the company because of its alleged mistreatment of animals. Four Justices found the posts sufficient to exercise specific personal jurisdiction over Groo; three dissented.

The split decision highlights the divergent approaches courts have taken to personal jurisdiction in online-speech cases following the U.S. Supreme Court’s 2014 decision in Walden v. Fiore, which held that constitutional due process requires minimum contacts that the nonresident defendant purposefully creates with the forum itself. Under Walden, a defendant cannot be haled into court if her only link to the forum is contact with the plaintiff or third parties who are affiliated with the forum.

In finding the exercise of personal jurisdiction proper under Walden, the majority in Groo reasoned that Groo had purposefully directed her Facebook posts at the state by engaging in a “targeted campaign” to undermine a Montana business. The majority emphasized that Groo had not simply posted information on the internet that could be read in Montana; instead, she had tagged Montana residents and those doing business in Montana in her posts and urged them not to engage with Triple D’s Montana-based business. According to the majority, those actions amounted to contacts with Montana itself.

In the dissent’s view, the majority’s approach represented a “fundamental distortion” of the due-process principles articulated in Walden. The majority’s primary error was its “failure to distinguish between targeting a specific individual and targeting the State of Montana,” as Walden requires. In this case, the dissent reasoned, Groo targeted a specific Montana business and just three Montana residents doing business with it rather than Montana itself or a broader Montana audience. Because Groo had no other alleged contacts with the state, the dissent concluded that she had not purposefully availed herself of the privilege of conducting activities in Montana such that haling her into court there would comport with due process.

Whether Groo foreshadows a trend toward exercising personal jurisdiction based on targeted social-media posts remains to be seen. The majority principally found support for its approach in Zehia v. Superior Court of San Diego, a California decision upholding jurisdiction on the basis of defamatory statements with a “distinct California focus” that were sent by a nonresident to California residents in private social media messages. According to the dissent, however, neither Zehia nor any other case has ever exercised personal jurisdiction based on a defendant’s social media posts alone, without something more. Whatever the correct approach, targeted posts on social media may have serious jurisdictional implications in certain states.

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Photo of Shiloh Rainwater Shiloh Rainwater

Shiloh Rainwater is an associate in the Litigation Department and a member of the Firm’s Appellate Practice Group, which was named to the National Law Journal’s 2020 Appellate Hot List.  He litigates appeals spanning a wide array of subject areas, including bankruptcy, constitutional…

Shiloh Rainwater is an associate in the Litigation Department and a member of the Firm’s Appellate Practice Group, which was named to the National Law Journal’s 2020 Appellate Hot List.  He litigates appeals spanning a wide array of subject areas, including bankruptcy, constitutional law, securities, employment, and contracts.  Shiloh has successfully represented clients in high-stakes appeals in state and federal appellate courts across the country, including the U.S. Supreme Court.  Among his notable representations, Shiloh has obtained victories at the First Circuit on behalf of the Financial Oversight and Management Board for Puerto Rico in numerous appeals stemming from Puerto Rico’s $135 billion bankruptcy—the largest in American history.

In addition, Shiloh litigates a range of commercial disputes at the trial level involving, among other things, products liability, real estate, contracts, securities regulation, shareholder actions, and restructurings.  His experience spans the entire litigation lifecycle, from commencing litigation through discovery, motion practice, and trial.  Most recently, Shiloh was a member of a trial team litigating a protracted contract dispute between former co-owners of nursing facilities in California.  Among other matters, Shiloh secured dismissal of claims for intentional interference with contract against a major French logistics company; obtained summary judgment on behalf of a debt fund seeking to enforce guarantees executed in connection with financing a condominium project in Brooklyn; and contributed to a favorable outcome in expedited arbitration proceedings concerning violations of a commercial non-compete.

Shiloh maintains a robust pro bono practice, representing clients in a variety of matters.  For several years, he has provided pro bono representation to a veteran seeking vocational rehabilitation & employment benefits from the Department of Veterans Affairs.  He has also represented a prisoner asserting claims against prison officials for violations of his Eighth Amendment rights.  And, he has represented a class of tenants in public housing seeking to compel New York to address persistent mold issues.

Before joining Proskauer, Shiloh served as a law clerk to the Honorable James O. Browning of the U.S. District Court for the District of New Mexico, one of the nation’s most prolific federal judges.  Shiloh also clerked for the Honorable Gregory A. Phillips of the U.S. Court of Appeals for the Tenth Circuit.