The 9th Circuit held oral arguments en banc on Wednesday in Gator.com v. L.L. Bean, 02-15035. The 9th Circuit panel decisions is Gator.com v. L.L. Bean, 341 F.3d 1072 (2003).
Here is a background at FindLaw: The Ninth Circuit to Look at Internet Jurisdiction: Does Business Conducted in Cyberspace Satisfy the Requirements of Continuous and Systematic Contact?
Law.com: 9th Circuit Snaps at Gator’s Argument
The en banc arguments were lively, with nine of the 11 judges questioning lawyers about the benefits — and dangers — of allowing Gator.com to sue L.L. Bean Inc. over pop-up advertising that the latter says infringed on its intellectual property.
Joe Gratz: Gator.com v. L.L. Bean
The en banc panel focused more than I expected on the jurisdictional effect of the cease-and-desist letter. On one hand, L.L. Bean lobbed this potentially damaging document into California, and causing damage within the jurisdiction makes jurisdiction proper. On the other hand, all L.L. Bean was doing was enforcing their trademark rights, which they had a legal duty to do; the C&D wasn’t intended to cause any damage, only to ask Gator to stop infringing. Toward the end of the oral argument, L.L. Bean’s attorney (who was doing a great job with a hard case) made the point that they had no other way to tell Gator to stop, so if the court held that sending C&Ds caused personal jurisdiction to attach, every IP owner would be instantly amenable to suit anywhere someone infringed their IP rights, if they told the infringer to stop.