by Eric D. Morton
Businesses that have e-commerce website must take notice of a recent court decision determining whether or not they can be sued in a state other than their home state.
On April 21, 2025, an en banc panel of the Federal Ninth Circuit Court of Appeals issued a landmark 10–1 ruling in Briskin v. Shopify that markedly reshapes personal jurisdiction for e‑commerce platforms. Read the case here. The court reversed prior rulings and held that Shopify’s decision to install tracking cookies and collect personal data on the phone of a California resident—Brandon Briskin—constituted purposeful direction toward California, thereby satisfying due process for specific jurisdiction to allow Shopify to be sued in California. 
Generally speaking, a defendant in civil lawsuit sued in a court not in its home state would have to either be registered in that court’s state, have been physically present in that state and did conduct that was the basis for the lawsuit there, or had continuing contacts with that state.
Briskin sued Shopify for allegedly installing web tracking technologies on his iPhone without his knowledge or consent, tracking his behavior across its merchant network, including his geolocation, IP address, and payment information, and storing that personal data, creating user profiles, and marketing and selling those profiles to its customers.
The court set a three prong test: Purposeful direction is met when: (1) the defendant intentionally commits an act, (2) expressly aimed at the forum state, and (3) causing harm that the defendant knows will be felt in that state. Shopify’s use of its web tracking technologies satisfied all three prongs.
Risk of forum shopping increases
The Ninth Circuit has jurisdiction over the western United States, including California. California businesses may now face litigation in any state where they collect identifiable data from residents—creating the potential for lawsuits coast to coast. This decision is controversial. E-commerce companies (naturally) denounce it as an attack on how the Internet works. However, attorneys general in 30 states endorse it.
Practical Tips: Terms & Conditions Best Practices
E‑commerce businesses should update their Terms & Conditions (T&C) to safeguard control over jurisdiction and venue. Consider including the following clauses:
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Jurisdiction & Venue Selection
“All disputes arising out of or related to your use of this website shall be resolved exclusively in the state or federal courts located in [Your State], and you hereby consent to personal jurisdiction and venue therein.”
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Choice of Law Provision
“These Terms shall be governed by and construed in accordance with the laws of [Your State], without regard to its conflicts of laws principles.”
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Disclaimer of Targeted Advertising
“We do not target advertisements or services to users based on location; any collection of personal information is not intended to specifically target residents of any particular jurisdiction.”
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Location-Based Services Disclosures
If using geolocation or cookie tracking, ensure transparency:“By using our service, you consent to [Your Business] collecting technical data, such as IP address or geolocation, which may include processing within your jurisdiction.”
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Arbitration Clause (optional)
“You agree that any claim relating to these Terms or your use of the services will be determined by binding arbitration in [Your City/State], unless you opt out within 30 days.”
Why These Terms Matter
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Clarifies consent: Courts may interpret your T&C consent as purposeful availment—bolstering jurisdictional defenses.
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Mitigates overbroad reach: A clear venue clause can prevent plaintiffs from suing in distant states.
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Enhances transparency: Disclosing tracking practices strengthens disclosures and builds customer trust.
Final Thoughts
The Briskin decision signals a judicial shift: e‑commerce platforms cannot assume they escape litigation simply by having a nationwide presence. Designing smart T&C with jurisdiction, venue, choice-of-law, and clear disclosures is vital to maintain control over legal risk.
If your business uses cookies, geolocation, or consumer data, review your Terms & Conditions now—and consider consulting counsel to ensure enforceability under your state’s standards.
Eric D. Morton is the principal attorney at Clear Sky Law Group, P.C. He can be reached at 760-722-6582, 510-556-0367, and emorton@clearskylaw.com
