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| One of the best expressions ever captured on camera |
Interlocutory appeals are relatively rare, but we have one this week. Vermont sued Meta (Facebook and Instagram) under the consumer protection act among other claims. Meta filed a motion to dismiss. The trial court denied it. Meta asked to file an interlocutory appeal, which the trial court granted on Meta's personal-jurisdiction argument.
This leads to SCOV grappling with this question: Can Vermont assert personal jurisdiction over out-of-state social-media company when the real business is all digital, and the company doesn't have a real footprint in Vermont? SCOV says yes. We live in a digital world and digital contacts can suffice for personal-jurisdiction purposes.
Backing up just a bit, Vermont sued Meta, claiming it designed Instagram to be addictive for teens, prioritized ad revenue over Vermont kids' well-being, and either downplayed or hid harmful internal research. The complaint pointed out that thousands of Vermont teens use Instagram daily and that Meta, in its never-ending quest for engagement, specifically studied Vermont user data and sold Vermont-targeted ads. Meta, as we already know, moved to dismiss. It argued Vermont courts have no business exercising jurisdiction over them because their ties to Vermont aren't special or "purposeful" enough.
If you've been to law school (and if you haven't been, this is not any good reason to go), you should be familiar with the minimum-contacts test. Basically, the minimum-contacts test asks whether a defendant's activity within the forum state is sufficient for the defendant to expect lawsuits within that state. If you want to sound like you know about personal jurisdiction, you can use magic words like "Burger King" and "International Shoe." If you're challenged, just blurt out "Pennoyer v. Neff." There's a joke about Pennoyer that I'd be happy to tell you some time, but it's only marginally funny and really only makes sense if you've sat through 1L civ pro.
At any rate, Meta argues that they're everywhere vis a vis the internet (and not "directing" actions at Vermont in particular) so that Meta is not subject to Vermont jurisdiction. SCOV does a McKayla Maroney look and points to how the State alleges that Meta has built a massive Vermont user base, targeted kids, gathered data, and sold Vermont-specific ads. SCOV likens this activity to good old-fashioned, purposeful exploitation of a local market. It doesn't matter if the thing being sold is virtual ad space or a box of pipe fittings. We've got purposeful contacts here.
SCOV also tackles Meta's arguments about the supposed lack of a direct link between Vermont and the alleged misrepresentations. The gist of the argument is: "Well, none of the lies happened in Vermont specifically." Want to take a wild guess how that goes? SCOV points out that when a business model runs on collecting Vermont data, engaging Vermont users, and pitching Vermont ads, it's no longer a "but they just found us on the interwebs!" situation.
One interesting aspect to note: 47 states and commonwealths lined up to support Vermont's position. If you can get 47 AGs (or solicitor generals—I swear, this would be a straightforward sentence if we didn't have to note "commonwealths" and "solicitors") to agree on anything that's pretty good support.
While this decision might seem straightforward, personal jurisdiction with social media companies is a surprisingly as-yet underdeveloped area of law. Simply put, "traditional notions of fair play and substantial justice" are a little more difficult to parse out in the digital world than with, say, vehicles or boxes of pipe fittings. Nonetheless, this one gets affirmed. State v. Meta Platforms, Inc., 2025 VT 51.
Moving to our second case for the week . . . . This one was in the news for a number of reasons, including because charges were originally dismissed by the Chittenden County prosecutor's office in light of an insanity defense. Well the AG's office took it on and Mr. Gurung went to trial and was convicted of first-degree murder of his wife and second-degree attempted murder of his mother-in-law after the jurors at his criminal trial rejected his insanity defense.
He appeals.
His first argument harkens to the initial dismissal. Defendant argues that his subsequent prosecution was barred by the first one. He also claims that too the trial court infringed his rights to a public trial and to participate in his own defense. In addition, he contends the jury instructions were confusing and incomplete, the jurors got unsupervised access to graphic video, and the court botched his interpreter services. None of these arguments land for SCOV.
First, though, SCOV takes up preservation. And the reason I use the word preservation is because SCOV really digs into the vagaries here. What's a waiver? What's a forfeit? What is the sum of all human knowledge? I probably can't answer any of those questions definitively. But SCOV tries to clear up part of the confusion and this line makes me smile: "The informality with which we have used the term 'waiver' obscures how we handle distinct types of preservation errors." That's one of the most-honest lines I've seen in an appellate opinion. At any rate, if you run into something with preservation issues, this is probably going to be one of the cases that gets cited in the future for classification purposes.
Anyway, the first prosecution ended when the State's Attorney dismissed the charges—too much expert evidence suggested insanity and the State's Attorney didn't think the office had enough to rebut it. After defendant was released from psychiatric care, however, the Attorney General refiled charges. Defendant argues this second prosecution was barred by double-jeopardy principles, collateral estoppel, and all that jazz. SCOV disagrees. Dismissal "without prejudice" means that charges can be brought again—no final judgment, so no bar to later prosecution. An aside: when I was first learning this stuff, I thought "without prejudice" sounded like the better deal, but that was the wrong impression. Both the AG and State’s Attorney have co-equal powers to charge, so defendant's arguments to the effect that the State's Attorney's actions bind the Attorney General don't go anywhere.
SCOV next looks at jury selection and trial processes below. Defendant claims he and the public were wrongly excluded from key parts, like counsel-only peremptory strikes and some sidebar conferences. SCOV points out that most of the voir dire was public and defendant was present for questioning. The lawyers-only striking of certain jurors in chambers? SCOV notes that this is basically a glorified sidebar, and courts everywhere do it. So, no Sixth Amendment violation here, and having defense counsel’s on-the-record consent doesn't hurt.
Defendant challenges the trial court's refusal to tell jurors what happens after an insanity verdict—he wanted a "consequences" instruction and didn't get one. SCOV does not see an error here. The jury's job is to figure out whether defendant did the crime and, if so, whether he was legally insane when he did—not to consider what will happen afterward. SCOV concludes there was neither confusion among the jurors nor any reason to give a "consequences" instruction.
The cellphone video of the attack was pretty graphic—so graphic, in fact, that the court hesitated to send it into the jury room. But eventually (after a lot of back and forth over whether it was admissible in the first place) both the prosecution and defense agreed it made sense to give jurors access and let them control playback to match their deliberations with trial testimony. This time, SCOV reasons that defendant waived the argument (using "waiver" as defined in this opinion).
Finally, defendant claims he didn't get quality translation during trial—interpretation was sometimes ragged, with occasional missed words and legal phrases left in English. There were multiple hearings, and the trial court invited defendant to let his lawyers know if he was having any trouble understanding. There was also a defense interpreter monitoring the process, and the trial court gave defense counsel permission to record. There was a mid-trial motion and a post-trial motion. And there's a lengthy discussion about standards surrounding interpretation, where the constitutional right to interpretation comes from, and, you know, other stuff. What it all boils down to, however, is that defendant never actually shows (at trial or on appeal) how this undermined his understanding of the case or his ability to help his lawyers put on his defense. And so, no abuse of discretion and no plain error.
This one gets affirmed but weighs in at almost 40 pages. State v. Gurung, 2025 VT 52
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