In Levitin v. Sony Music Entertainment, the plaintiffs claimed that the international hit song "Timber," written and performed by Pitbull and Ke$ha and distributed by the defendants, infringed their 1978 song, "San Francisco Bay." A federal judge in the US District Court for the Southern District of New York held that although the plaintiffs could not prevail on an agency theory to demonstrate general personal jurisdiction over various international affiliates of Sony Music Entertainment (Sony Affiliates), the plaintiffs' agency-related allegations were sufficient to demonstrate specific jurisdiction over the Sony Affiliates under New York law (No. 14-cv-04461 (PAC), (S.D.N.Y. Apr. 22, 2015)).

In its order, the court reiterated that relying on an agency theory to demonstrate general jurisdiction is now of dubious validity given the US Supreme Court's decision in Daimler AG v. Bauman, 134 S. Ct. 746 (2014) (see Legal Update, Supreme Court: Presence of Subsidiary in Forum State Insufficient for General Jurisdiction over Foreign Parent Corporation). However, despite affidavits from the Sony Affiliates to the contrary, the court found that the plaintiffs' allegations were sufficient to establish specific jurisdiction over the Sony Affiliates. The plaintiffs alleged, among other things, that the Sony Affiliates:

The court also found that these allegations established sufficient minimum contacts with New York, that due process was otherwise satisfied because the Sony Affiliates obtained recordings from SME in New York and could use and benefit from them, and that the exercise of jurisdiction was reasonable. As a result, the court denied the Sony Affiliates' motion to dismiss for lack of personal jurisdiction.

In light of Daimler and Levitin, counsel should no longer rely solely on allegations showing that a foreign corporate defendant has continuous and systematic contacts with the forum state to establish personal jurisdiction in most cases. Instead, counsel should ensure that a complaint also includes allegations sufficient to establish specific jurisdiction under the forum state's long-arm statute, which typically means including facts showing that the lawsuit arises either from the defendant's actions in the forum state or the plaintiff's injury in the forum state.

Practical Law has several resources to assist counsel in analyzing personal jurisdiction issues, including the following Practice Notes: