The case has two very interesting aspects. First, from a procedural standpoint, it's the long arm of the law. Can California haul a company into one of its courts if it doesn't have an agent here and doesn't pay taxes? In the original three-judge ruling, the Ninth Circuit allowed California courts to decide cases involving a company doing business in the state via the internet, despite not having an agent here and not paying taxes in California. As noted below, that decision no longer has the force of law.
The second question before the court was the legality of Gator's pop-up advertising program that presented computer users with Eddie Bauer gift certificates when they visited an L.L. Bean website.
Instead of tackling these issues head on, the Ninth Circuit said the case is moot due to a settlement between the parties. Gator agreed to stop using pop-ups, leaving open the jurisdictional question. In the trial court below, the case was dismissed for lack of jurisdiction, and was appealed. Given today's decision on that appeal, that question remains unanswered.
Judge Fletcher and two other judges wanted to answer that question and filed a dissent. She wrote, "If we find this appeal moot, we will not be frugally guarding the scarce resources of the federal courts. Rather, we will be wasting them in a spectacular fashion."
In the first hearing on the appeal from the trial court, three Ninth Circuit judges thought that California could exercise general jurisdiction over L.L. Bean, but those "thoughts" are no longer law, having been vacated by today's en banc decision "not to decide."
We're left to wonder what will ultimately be the law in this circuit and wanting for guidance over whether California can exercise jurisdiction over companies doing business in the state via the internet.
If you were on the Court, how would you decide? Should L.L. Bean expect to be dragged from Maine into court here in California?