Amicus Curiae Brief — Robert Mallory, Petitioner v. Norfolk Southern Railway Co.
Supreme Court briefJul 12, 2022
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No. 21-1168
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------ROBERT MALLORY,
Petitioner,
v.
NORFOLK SOUTHERN RAILWAY CO.,
Respondent.
---------------------------------♦--------------------------------On Writ Of Certiorari To The
Supreme Court Of Pennsylvania
---------------------------------♦--------------------------------BRIEF OF SCHOLARS ON CORPORATE
REGISTRATION AND JURISDICTION AS AMICI
CURIAE IN SUPPORT OF NEITHER PARTY
---------------------------------♦--------------------------------CHARLES W. RHODES
SOUTH TEXAS COLLEGE OF
LAW HOUSTON
1303 San Jacinto St.
Houston, Texas 77002
(713) 646-2918
crhodes@stcl.edu
ANDREW S. POLLIS
Counsel of Record
CASE WESTERN RESERVE
UNIVERSITY SCHOOL OF LAW
10900 Euclid Ave.
Cleveland, Ohio 44106
(216) 368-2766
andrew.pollis@case.edu
Counsel for Amici Curiae
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................
iii
INTEREST OF THE AMICI CURIAE .................
1
SUMMARY OF ARGUMENT ..............................
1
ARGUMENT ........................................................
3
I.
II.
Corporate Registration Statutes Operate
Independently of Minimum Contacts ........
4
A. Consent Provides an Alternative Traditional Basis for Jurisdiction .............
5
B. Jurisdictional Conditions under Registration Statutes Operate as Consent ......
6
The Constitution Demands a State Sovereign Interest in the Dispute to Support
Jurisdiction under a Registration Statute ..............................................................
9
A. Original Meaning Supports a StateInterest Requirement .......................... 10
B. A State-Interest Requirement Comports
with Due Process and the Unconstitutional-Conditions Doctrine .................... 15
C. The Commerce Clause Would Similarly
Necessitate a State Interest.................. 22
D. Registration Statutes Reciprocally Exchange Proportional Benefits and Obligations when State Interests Support
Jurisdiction .......................................... 25
ii
TABLE OF CONTENTS—Continued
Page
III.
An All-or-Nothing Approach Would Undermine Interstate Federalism ......................... 29
CONCLUSION..................................................... 35
APPENDIX
Amici Curiae Scholars of Corporate Registration and Jurisdiction ........................................ App. 1
iii
TABLE OF AUTHORITIES
Page
CASES
Armour Handcrafts, Inc. v. Miami Decorating &
Design Ctr., Inc.,
99 A.D.2d 521, 471 N.Y.S.2d 607 (1984) .................31
Armstrong v. Pomerance,
423 A.2d 174 (Del. 1980) .........................................31
Atchison, Topeka & Santa Fe Ry. Co. v. Wells,
265 U.S. 101 (1924) .................................................23
Bank of Augusta v. Earle,
38 U.S. (13 Pet.) 519 (1839) .....................................10
Bendix Autolite Corp. v. Midwesco Enters., Inc.,
486 U.S. 888 (1988) ................................. 6, 20, 21, 23
Birchfield v. North Dakota,
579 U.S. 438 (2016) .................................................19
Bothwell v. Buckbee, Mears Co.,
275 U.S. 274 (1927) ...................................................8
Burger King Corp. v. Rudzewicz,
471 U.S. 462 (1985) ................................. 5, 16, 25, 34
Chipman, Ltd. v. Thomas B. Jeffery Co.,
251 U.S. 373 (1920) ........................................... 14, 20
Cooper Tire & Rubber Co. v. McCall,
863 S.E.2d 81 (Ga. 2021), petition for cert. filed,
No. 21-926 (Dec. 20, 2021)................................. 32, 33
CTS Corp. v. Dynamics Corp. of Am.,
481 U.S. 69 (1987) .....................................................7
Daniels v. Williams,
474 U.S. 327 (1986) .................................................15
iv
TABLE OF AUTHORITIES—Continued
Page
D’Arcy v. Ketchum,
52 U.S. (11 How.) 165 (1851) ...................................10
Davis v. Farmers’ Co-op. Equity Co.,
262 U.S. 312 (1923) .................................................22
Denver & Rio Grande Western Railroad Co. v.
Terte,
284 U.S. 284 (1932) .................................................24
Dolan v. City of Tigard,
512 U.S. 374 (1994) ........................................... 17, 19
Donald v. Phila. & Reading Coal & Iron Co.,
241 U.S. 329 (1916) .................................................17
Edgar v. MITE Corp.,
457 U.S. 624 (1982) .................................................25
Eli Lilly & Co. v. Sav-On-Drugs, Inc.,
366 U.S. 276 (1961) ...................................................8
Eurofins Pharma US Holdings v.
BioAlliance Pharma SA,
623 F.3d 147 (3d Cir. 2010) .....................................31
Ex parte Schollenberger,
96 U.S. 369 (1878) ........................................... 5, 8, 12
Ford Motor Co. v. Mont. Eighth Judicial Dist. Ct.,
141 S. Ct. 1017 (2021) ..................................... passim
Frost & Frost Trucking Co. v. R.R. Comm’n of Cal.,
271 U.S. 583 (1926) .................................................18
Harrison v. St. Louis & San Francisco R.R. Co.,
232 U.S. 318 (1914) .................................................18
v
TABLE OF AUTHORITIES—Continued
Page
Hazout v. Tsang Mun Ting,
134 A.3d 274 (Del. 2016) .........................................31
Hemphill v. Orloff,
277 U.S. 537 (1928) ...................................................7
Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites
de Guinee,
456 U.S. 694 (1982) ...................................................5
Keeton v. Hustler Mag., Inc.,
465 U.S. 770 (1984) ........................................... 25, 26
Kulko v. Superior Court,
436 U.S. 84 (1978) ...................................................26
Lafayette Insurance Co. v. French,
59 U.S. (18 How.) 404 (1856) ............................. 10, 11
Long Mfg. Co. v. Wright-Way Farm Serv., Inc.,
214 N.W.2d 816 (Mich. 1974) ..................................28
Louisville & Nashville R.R. Co v. Chatters,
279 U.S. 320 (1929) ........................................... 12, 15
McBurney v. Young,
569 U.S. 221 (2013) .................................................22
McGee v. Int’l Life Ins. Co.,
355 U.S. 220 (1957) ........................................... 25, 26
Mich. Cent. R.R. Co. v. Mix,
278 U.S. 492 (1929) .................................................23
Mich. Pub. Util. Comm’n v. Duke,
266 U.S. 570 (1925) .................................................18
Milliken v. Meyer,
311 U.S. 457 (1940) .................................................17
vi
TABLE OF AUTHORITIES—Continued
Page
Morris & Co. v. Skandinavia Ins. Co.,
279 U.S. 405 (1929) ........................................... 14, 16
M/S Bremen v. Zapata Off-Shore Co.,
407 U.S. 1 (1972) .......................................................5
Murray’s Lessee v. Hoboken Land &
Improvement Co.,
59 U.S. (18 How.) 272 (1856) ...................................15
N.C. Dep’t of Rev. v. The Kimberley Rice
Kaestner 1992 Family Trust,
139 S. Ct. 2213 (2019) ....................................... 15, 19
Neirbo Co. v. Bethlehem Shipbuilding Corp.,
308 U.S. 165 (1939) ...................................................8
Neth. Shipmortgage Corp. v. Madias,
717 F.2d. 731 (2d Cir. 1983) ....................................28
Paul v. Virginia,
75 U.S. (8 Wall.) 168 (1869) .......................................7
Pennoyer v. Neff,
95 U.S. 714 (1878) ............................................. 11, 25
Pennsylvania Fire Ins. Co. v. Gold Issue Mining
& Milling Co.,
243 U.S. 93 (1917) ............................................. 13, 19
Railway Express Agency, Inc. v. Virginia,
282 U.S. 440 (1931) ...................................................7
Robert Mitchell Furn. Co. v.
Selden Breck Constr. Co.,
257 U.S. 213 (1921) ........................................... 14, 16
Shaffer v. Heitner,
433 U.S. 186 (1977) .................................................30
vii
TABLE OF AUTHORITIES—Continued
Page
South Dakota v. Wayfair, Inc.,
138 S. Ct. 2080 (2018) .............................................34
St. Clair v. Cox,
106 U.S. 350 (1882) .................................................12
Terral v. Burke Const. Co.,
257 U.S. 529 (1922) ........................................... 16, 17
Travelers Health Ass’n v. Virginia,
339 U.S. 643 (1950) ........................................... 26, 27
Union Brokerage Co. v. Jensen,
322 U.S. 202 (1944) ...................................................8
Wellness Int’l Network, Ltd. v. Sharif,
575 U.S. 665 (2015) ............................................... 5, 8
World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286 (1980) ..................................... 16, 33, 34
STATUTORY PROVISIONS
Colo. Rev. Stat. § 13-21-402(2) ....................................33
Del. Code tit. 10, § 3114 ........................................ 30, 31
Del. Code tit. 18, § 7001(c)(2) .....................................33
Minn. Stat. § 544.41 subdiv. 2(2) ................................33
N.Y. Bus. Corp. Law § 907(e)(1)(2)(E) ........................31
42 Pa. Cons. Stat. § 5301(a)(2)(i) ................................16
viii
TABLE OF AUTHORITIES—Continued
Page
OTHER AUTHORITIES
Lea Brilmayer et al., A General Look at General
Jurisdiction, 66 Tex. L. Rev. 721 (1988)....................6
Robin J. Effron, The Lost Story of Notice and Personal Jurisdiction, 74 N.Y.U. Ann. Surv. Am.
L. 23 (2018) ..............................................................35
Alexandra D. Lahav, The New Privity in Personal Jurisdiction, 73 Ala. L. Rev. 539 (2022) ........34
John Locke, Two Treatises of Government: The
Second Treatise of Civil Government (1689) ...........5
John F. Preis, The Dormant Commerce Clause as
a Limit on Personal Jurisdiction, 102 Iowa L.
Rev. 121 (2016) ........................................ 3, 22, 23, 24
Jeffrey L. Rensberger, Consent to Jurisdiction
Based on Registering to Do Business: A Limited Role for General Jurisdiction, 58 San
Diego L. Rev. 309 (2021) ............................... 9, 13, 28
Charles W. Rhodes, Nineteenth Century Personal
Jurisdiction Doctrine in a Twenty-First Century World, 64 Fla. L. Rev. 387 (2012) .............. 13, 35
Charles W. Rhodes & Cassandra Burke Robertson, A New State Registration Act: Legislating
a Longer Arm for Personal Jurisdiction, 57
Harv. J. Leg. 377 (2020) ................................... passim
Aaron D. Simowitz, Jurisdiction as Dialogue, 52
N.Y.U. J. Int’l Law & Politics 485 (2020) ................35
ix
TABLE OF AUTHORITIES—Continued
Page
Joseph Story, Commentaries on the Conflict of
Laws (1834) .............................................................10
Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413 (1988) .........................9
1
INTEREST OF THE AMICI CURIAE
This brief is written on behalf of academics who
have separately authored works addressing the constitutional limits on jurisdiction based on corporate registration and, despite employing differing analyses, all
reached the same conclusion: such jurisdiction is constitutional if—and only if—the State has a sovereign
interest in the dispute. See Appendix (listing amici
curiae). The original understanding, subsequent doctrine, horizontal federalism, and normative principles
all support this middle-ground approach not addressed
by either party.1
---------------------------------♦---------------------------------
SUMMARY OF ARGUMENT
This case poses serious questions regarding the
relative powers of States in our federal system. Petitioner and Respondent both stake out maximalist positions. Petitioner argues that States have unfettered
power to assert personal jurisdiction over nonresident
corporations through registration statutes, while Respondent contends that States have no power to do so
1
Both Petitioner and Respondent have issued blanket consents to the filing of any amicus briefs in support of either party
or neither party. No counsel for a party authored this brief in
whole or in part, and no party or counsel for a party made any
monetary contribution intended to fund the preparation or submission of this brief. South Texas College of Law Houston and
Case Western Reserve University School of Law shared the cost
of printing and filing this brief. No other person or entity made
any monetary contribution to the preparation and submission of
this brief.
2
if the corporation is not amenable to jurisdiction under
the minimum-contacts standard. Neither position is
correct.
The proper result should follow the recognized
contours of a State’s sovereign power as consistently
defined by this Court across different centuries and
doctrinal contexts. In short, States have sovereign
power to employ registration as an alternative jurisdictional basis provided the dispute implicates the
State’s sovereign interests, such as safeguarding its
citizens, redressing in-state injuries, and enforcing its
laws.
Corporations are artificial entities that depend on
a State’s legal recognition. State corporate registration
and agent appointment statutes began in the 1800s
specifically as a mechanism to obtain consent jurisdiction over nonresident corporations. These statutes had
already been upheld by this Court and were in common
use before 1868. This Court has since continued to uphold registration statutes supported by a State’s sovereign interests under various constitutional doctrines
while recognizing limits on employing consent under a
registration statute, standing alone, to support jurisdiction in the absence of such interests.
In contrast to the positions advanced by the parties, this means a State may sometimes—not always or
never—subject out-of-state businesses to personal jurisdiction based on its registration to do business. The
State has lawful power to do so when suit is brought
by a state citizen or because of an in-state harm or
3
transaction. Only when the plaintiff is a nonresident
seeking a remedy for an out-of-state harm unconnected to the defendant’s in-state activity does the
State lack the necessary interest to apply its registration statute to assert jurisdiction.
Either stark solution posed by the parties would
create doctrinal complications that would require this
Court’s further intervention. Under Petitioner’s view
that States can always assert personal jurisdiction
predicated on corporate registration, defendants would
quickly challenge such jurisdictional schemes as violating the dormant or negative Commerce Clause in
cases without a sufficient sovereign interest.2 In contrast, a holding for Respondent that States lacked sovereign power to obtain jurisdictional consent for harms
suffered by their citizens or for in-state injuries or activities would call into question this Court’s prior holdings recognizing the legitimacy of these interests in
other contexts.3
---------------------------------♦---------------------------------
ARGUMENT
Respondents incorrectly argue that consent under a registration statute cannot extend beyond the
contours of contacts-based specific jurisdiction. This
2
See John F. Preis, The Dormant Commerce Clause as a
Limit on Personal Jurisdiction, 102 Iowa L. Rev. 121, 125 (2016).
3
See Charles W. Rhodes & Cassandra Burke Robertson, A
New State Registration Act: Legislating a Longer Arm for Personal Jurisdiction, 57 Harv. J. Leg. 377, 417-29 (2020).
4
ignores that registration statutes have long been
viewed by this Court as a form of consent, a wholly independent jurisdictional basis.
Yet Petitioners mistakenly claim that no constitutional limits exist on the consent States may extract
from nonresident corporations through a registration
statute. This overlooks this Court’s early decisions and
subsequent doctrine that interpreted the Constitution
as imposing such limits. These limits demand a sufficient sovereign interest in the dispute for consent jurisdiction to be validly exercised under a registration
statute.
I.
Corporate Registration Statutes Operate
Independently of Minimum Contacts.
This case differs from this Court’s other twentyfirst century personal-jurisdiction decisions, which all
address the due-process substantive limits on a State’s
adjudicative authority over a nonresident defendant.
The issue here is the permissible scope of an alternative jurisdictional basis that has been recognized for
centuries: consent. More specifically, the case addresses statutory jurisdictional conditions imposed on
a corporation seeking to obtain the privileges of conducting in-state business and accessing local state
courts, a form of consent that has been upheld, within
articulated limits, by this Court for almost 170 years.
5
A. Consent Provides an Alternative Traditional Basis for Jurisdiction.
The right to be free from jurisdiction in a particular State is “an individual right,” which, like other individual constitutional rights, can be lost by waiving
the right or providing consent. Ins. Corp. of Ir., Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 70304 (1982). Consent may be based on “actions rather
than words.” See Wellness Int’l Network, Ltd. v. Sharif,
575 U.S. 665, 684 (2015). Such consent, when given in
accordance with constitutional limitations, authorizes
a State’s jurisdictional power on its own, irrespective
of compliance with other bases for personal jurisdiction. See Burger King Corp. v. Rudzewicz, 471 U.S. 462,
472 (1985); Ins. Corp., 456 U.S. at 703-04; Ex parte
Schollenberger, 96 U.S. 369, 377-78 (1878). Consent
has served as such an alternative jurisdictional basis
in international public law for centuries. See John
Locke, Two Treatises of Government: The Second Treatise of Civil Government § 119 (1689) (recognizing
“tacit Consent” of all possessing or enjoying “any part
of the Dominion of any Government”).
Consent jurisdiction does not require a connection
between the claim and the forum. Burger King, 471
U.S. at 472 n.14; M/S Bremen v. Zapata Off-Shore Co.,
407 U.S. 1, 15-17 (1972). Yet even though no forum relationship is required, consent differs from other jurisdictional grounds viewed as forms of general
jurisdiction—it does not encompass all claims against
the defendant, but only those claims within the scope
6
of the consent.4 Consent jurisdiction thus elides the
traditional contacts-based distinction between general
and specific jurisdiction, i.e., whether the suit arises
out of or relates to the defendant’s in-state activities.
Ford Motor Co. v. Mont. Eighth Judicial Dist. Ct., 141
S. Ct. 1017,1024-25 (2021).
This is appropriate because the constitutional propriety of consent jurisdiction does not depend on the
scope of contacts-based general or specific jurisdiction.
Consent may establish a nonresident corporation’s
amenability to suit even without “the minimum contacts necessary for supporting personal jurisdiction.”
Bendix Autolite Corp. v. Midwesco Enters., Inc., 486
U.S. 888, 893 (1988). The nonresident’s amenability,
though, is not absolute; it is constrained by the constitutional limits on the State’s power to extract consent—in the present case, under a corporate
registration and agent appointment statute.
B. Jurisdictional Conditions under Registration Statutes Operate as Consent.
Corporate registration and agent appointment
statutes began in the 1800s specifically as a means
to obtain jurisdiction over nonresident corporations
through the corporation’s consent.5 Despite the intervening changes in corporate and jurisdictional doctrine
over some two centuries, it remains that corporations
4
See Lea Brilmayer et al., A General Look at General Jurisdiction, 66 Tex. L. Rev. 721, 756 (1988).
5
See Rhodes & Roberson, supra n.3, at 401.
7
are artificial entities that depend on State legal
recognition—a corporation “owes its existence and
attributes to state law,” as it necessitates sovereign
permission as a regulatory pre-condition to conduct operations. CTS Corp. v. Dynamics Corp. of Am., 481 U.S.
69, 91 (1987).
While corporations receive other constitutional
protections, including (as relevant in this case) due
process and negative commerce protections, corporations “are not citizens within [the] meaning” of the Interstate Privileges and Immunities Clause of Article
IV. Paul v. Virginia, 75 U.S. (8 Wall.) 168, 177 (1869). As
a result, a corporation has no constitutional recourse
for a State’s denial of those benefits and privileges protected by that clause, including the right to maintain
an action in the courts of another State or the right to
conduct ongoing local, in-state business activities. E.g.,
Ry. Express Agency, Inc. v. Virginia, 282 U.S. 440, 44344 (1931) (upholding Virginia bar on nonresident corporations conducting the intrastate business activities
of public service corporations); Hemphill v. Orloff, 277
U.S. 537, 548-51 (1928) (upholding state-court dismissal of breach of contract action filed by foreign corporation conducting in-state activities without registering
to do business).
For an out-of-state corporation to obtain privileges
and immunities such as accessing the State’s judicial
system and transacting ongoing, local in-state business (as distinguished from those interstate business
activities that are protected by the Commerce Clause),
every State statutorily requires foreign or nonresident
8
corporations to register and obtain a certificate of authority.6 Upon registration, the State provides government-conferred benefits that it is not constitutionally
compelled to provide—and that it can deny to a noncompliant corporation. E.g., Eli Lilly & Co. v. Sav-OnDrugs, Inc., 366 U.S. 276, 278-83 (1961); Union Brokerage Co. v. Jensen, 322 U.S. 202, 206-12 (1944); Bothwell
v. Buckbee, Mears Co., 275 U.S. 274, 275-78 (1927).
In exchange for these benefits, the State may impose obligations related to its sovereign interests
through its registration statute. States may thereby
“encourage” a corporation’s consent to jurisdiction by
requiring it as a condition to obtain governmentconferred benefits. Cf. Wellness Int’l, 575 U.S. at 704
(Roberts, C.J., dissenting) (Congress could “encourage”
consent by private litigants to non-Article III courts
through conditions on federal benefits). This Court has
long viewed such statutory exchanges of obligations to
obtain benefits as manifesting a valid consent. If a
State’s legislature “requires a foreign corporation to
consent to be ‘found’ within its territory . . . as a condition to doing business in the State, and the corporation
does so consent, the fact that it is found gives the jurisdiction, notwithstanding the finding was procured
by consent.” Schollenberger, 96 U.S. at 377 (1878). Registration statutes requiring designation of an agent are
“constitutional,” with “the designation of the agent ‘a
voluntary act’ ” that manifests a “real consent.” Neirbo
6
Rhodes & Robertson, supra n.3, at 405-08.
9
Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 175
(1939).
But there are limits. As with other government
benefits conditioned on surrendering liberties, the
State may not “use strategic manipulation of gratuitous benefits to aggrandize public power [and] . . . to
gain leverage over constitutional rights.”7 In the registration context, this means that a State cannot withhold granted benefits unless the imposed obligation is
proportionate and related to the conditioned benefit.8
II.
The Constitution Demands a State Sovereign Interest in the Dispute to Support Jurisdiction under a Registration Statute.
The corporation’s consent to jurisdiction, obtained
as a condition for registration and permission to do
in-state business and access state courts, may only
constitutionally extend to the claims where the State
has a sovereign interest in the dispute. This requirement flows from original constitutional meaning, subsequent doctrine, and horizontal federalism.
7
Kathleen M. Sullivan, Unconstitutional Conditions, 102
Harv. L. Rev. 1413, 1493 (1989).
8
See Jeffrey L. Rensberger, Consent to Jurisdiction Based on
Registering to Do Business: A Limited Role for General Jurisdiction, 58 San Diego L. Rev. 309, 357-59, 363-65 (2021); Rhodes &
Robertson, supra n.3, at 405-08, 430-36.
10
A. Original Meaning Supports a StateInterest Requirement.
1. Antebellum Principles. At the founding, a
State’s jurisdictional assertions within its own borders
were limited only by state law; the U.S. Constitution
did not then restrict state-court authority regarding
in-state judgments. But another U.S. sovereign did
not owe full faith and credit to a state judgment that
exceeded jurisdictional limits imposed by “wellestablished rules of international law.” D’Arcy v.
Ketchum, 52 U.S. (11 How.) 165, 174-76 (1851). These
traditional public-law principles included limiting a
court’s authority to its territory: “No sovereignty can
extend its process beyond its own territorial limits, to
subject either persons or property to its judicial decisions.” Joseph Story, Commentaries on the Conflict of
Laws § 539, at 450 (1834).
This territorial limitation imposed a barrier to a
corporation’s amenability under the original commonlaw view that “a corporation can have no legal existence out of the boundaries of the sovereignty by which
it is created.” Bank of Augusta v. Earle, 38 U.S. (13 Pet.)
519, 588 (1839). To circumvent this impasse, States
enacted the first agent-appointment statutes, requiring corporations desiring to conduct in-state business
activities to stipulate to jurisdiction.9
This Court upheld such service on a designated
agent in Lafayette Insurance Co. v. French, 59 U.S.
(18 How.) 404 (1856), affirming the dismissal of an
9
See Rhodes & Robertson, supra n.3, at 401.
11
insurance company’s full-faith-and-credit challenge to
a default judgment issued under an Ohio statute authorizing service on a resident agent for suits founded
on insurance contracts with state citizens. “We find
nothing in this provision either unreasonable in itself,
or in conflict with any principle of public law.” Id. at
407. Because the foreign insurer could transact instate business only with the State’s authorization, “the
corporation must be taken to assent to the condition
upon which alone such business could there be transacted”—its amenability for those suits predicated on
its insurance contracts made within the State. Id. at
408-09.
2. Postbellum Doctrine. Jurisdictional consent
via registration-and-appointment statutes continued
to be upheld even as this Court discarded the initial
common-law perspective on corporate legal existence
and embraced the Fourteenth Amendment’s Due Process Clause as an additional limit on state-court adjudicative authority. Due process “normally depended on
the defendant’s presence in, or consent to, the sovereign’s jurisdiction.” Ford, 141 S. Ct. at 1036 (Gorsuch,
J., concurring). This allowed States to demand “a nonresident entering into a partnership or association
within its limits, or making contracts enforceable
there, to appoint an agent or representative in the
State to receive service of process and notice in legal
proceedings instituted with respect to such partnership, association, or contracts.” Pennoyer v. Neff, 95 U.S.
714, 734-35 (1878). States could thus require corporations to “stipulate that in any litigation arising out of
12
its transactions in the State, it will accept as sufficient
the service of process on its agents or persons specifically designated.” St. Clair v. Cox, 106 U.S. 350, 356
(1882). These early post-Fourteenth Amendment cases
specified the scope of the “consent to be ‘found’ away
from home” reached only those suits “growing out of its
transactions.” Schollenberger, 96 U.S. at 378.
Yet this transactional requirement authorized jurisdiction even if the cause of action “arose outside the
State,” as long as the claim was “shown to have arisen
out of any business conducted by the corporation
within it or to have had any relation to any corporate
act there.” Louisville & Nashville R.R. Co. v. Chatters,
279 U.S. 320, 328 (1929). Unless the registration statute or its authoritative construction specified a narrower scope, only claims “wholly unconnected with any
act or business of the corporation within the State may
not be sued upon there.” Id. at 325. Even assuming “a
transaction would not of itself have been regarded as a
doing of business within the State sufficient to establish the [defendant’s] presence” for jurisdiction, the
corporation’s registration evinced a consent to suit for
all obligations in any way connected to its in-state
business, including through accepting an obligation incurred by a third party within the State. Id. at 328-29.
3. Early Twentieth Century. As the “corporate
presence” jurisdictional fiction developed in the early
1900s, this Court for the first time recognized that
service on a designated corporate agent that was
“the equivalent of personal service” under a state
registration scheme could support jurisdiction over
13
obligations without any connection to the corporation’s
in-state business. Pa. Fire Ins. Co. v. Gold Issue Mining
& Milling Co., 243 U.S. 93, 95 (1917). While Petitioner
emphasizes this case, it is distinguishable. In Pennsylvania Fire—and the lower-court decisions it relied
upon—the defendant corporations were “doing business” within the State.10
At the time, corporate presence through in-state
business activities alone subjected the corporation to
any and all suits after proper service. See Ford, 141
S. Ct. at 1036-37 (Gorsuch, J., concurring). Pennsylvania Fire and related decisions were thus “based not so
much on consent as on the fictive presence that [this]
Court later abandoned.”11 The cases are best “understood as adopting a presumption that, by serving an
in-state corporate agent, the plaintiff established both
that the corporation was doing business in the state
(because registration was only required for in-state
business) and the appropriate service requirements
had been met for jurisdiction over unrelated causes of
action.”12
This Court’s subsequent decisions during the
1920s bolster this understanding. When registration
alone without accompanying in-state business was the
sole jurisdictional hook for claims unconnected to the
10
See Charles W. Rhodes, Nineteenth Century Personal Jurisdiction Doctrine in a Twenty-First Century World, 64 Fla. L.
Rev. 387, 437-39 (2012) (discussing cases).
11
Rensberger, supra n.8, at 361.
12
Rhodes, supra n.10, at 439.
14
State, the registration statute, unless its language
compelled otherwise, was not to “be construed to impose upon the courts of the State the duty, or give them
the power, to take cases arising out of transactions so
foreign to its interests.” Morris & Co. v. Skandinavia
Ins. Co., 279 U.S. 405, 408-09 (1929). This Court was
wary of construing state registration statutes “to extend to suits in respect of business transacted by the
foreign corporation elsewhere, at least if begun . . .
when the long previous appointment of the agent is the
only ground for imputing to the defendant an even
technical presence.” Robert Mitchell Furn. Co. v. Selden
Breck Constr. Co., 257 U.S. 213, 216 (1921).
While these cases were resolved through a statutory interpretation presumption, this Court added that
it did “not wish to be understood that the validity of
such service . . . would not be of federal cognizance
whatever the decision of a state court.” Chipman, Ltd.
v. Thomas B. Jeffery Co., 251 U.S. 373, 379 (1920).
These cases implied that restrictions existed on consent under a registration statute that furnished the
sole jurisdictional basis over claims “foreign to [State]
interests”; the primary purpose of corporate registration-and-appointment statutes subjects nonresident
corporations to jurisdiction “in controversies growing
out of transactions within the State.” Morris, 279 U.S.
at 409.
The original understanding and early precedent
thus comport with a middle-ground approach. This
Court recognized in nineteenth and early twentieth
century cases that limits exist on employing consent
15
under a registration statute, standing alone, as a jurisdictional basis for claims wholly unconnected to the
State’s interests. Yet this connection does not have to
satisfy contacts analysis; registration operated as consent for all claims connected in any manner to the forum even if the transaction at issue did not satisfy
other then-existing jurisdictional grounds. Chatters,
279 U.S. at 328-29. Although these decisions did not
detail the constitutional grounding for these principles, the essentials are furnished by the unconstitutional-conditions doctrine, alone or in combination
with the Due Process Clause, and the dormant or negative Commerce Clause.
B. A State-Interest Requirement Comports
with Due Process and the Unconstitutional-Conditions Doctrine.
The Due Process Clause “centrally concerns the
fundamental fairness of governmental activity.” N.C.
Dep’t of Rev. v. The Kimberley Rice Kaestner 1992 Family Trust, 139 S. Ct. 2213, 2219 (2019) (quotation omitted). It restrains legislative, executive, and judicial
power and prevents such power from being “used for
purposes of oppression.” Daniels v. Williams, 474 U.S.
327, 331 (1986); Murray’s Lessee v. Hoboken Land &
Improvement Co., 59 U.S. (18 How.) 272, 276-77 (1856).
The Clause applies when a State requires corporations
to surrender constitutional rights for the privilege of
conducting in-state business activities: “the sovereign
power of a State in excluding foreign corporations, as
in the exercise of all others of its sovereign powers, is
16
subject to the limitations of the supreme fundamental
law.” Terral v. Burke Const. Co., 257 U.S. 529, 532-33
(1922). Registration statutes implicate two potential
due process considerations.
1. Notice. Due process requires that nonresident
defendants “have fair warning” of their amenability to
suit, allowing them to structure their conduct “with
some minimum assurance as to where that conduct
will and will not render them liable to suit.” Burger
King, 471 U.S. at 472. Such notice provides the corporation the opportunity “to alleviate the risk of burdensome litigation” through insurance, price markups,
or forum-business closures. World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 297 (1980).
In early twentieth-century cases, this Court indicated that the consent granted under registration
should not extend beyond the limits specified by either
the statute’s explicit terms or state case-law interpretation. Morris & Co., 279 U.S. at 409; Robert Mitchell
Furn., 257 U.S. at 216. While the necessary “fair warning” may not exist under some current state registration statutes, such a constitutional difficulty does not
arise here—Pennsylvania law specifies that “qualification as a foreign corporation” establishes “general personal jurisdiction.” 42 Pa. Cons. Stat. § 5301(a)(2)(i).
2. Proportionate State Interest. Notice is not the
only determinant, however, as constitutional limits
exist on the government’s authority to exchange government benefits for a citizen’s surrender of a constitutional right. While Pennsylvania’s statute provides
17
notice of its scope, its breadth renders some applications of the statute unconstitutional when the State
has no proportionate interest in the suit.
The unconstitutional-conditions doctrine bars the
government from coercing citizens to surrender constitutional rights “in exchange for a discretionary benefit
conferred by the government where the benefit sought
has little or no relationship” to the relinquished right.
Dolan v. City of Tigard, 512 U.S. 374, 385 (1994). Due
process may operate similarly, as it ensures the government’s compliance with “traditional notions of fair
play and substantial justice” when exercising its adjudicative power; these notions authorize the State to exchange “reciprocal duties” for conferred benefits under
the traditional bases for jurisdiction. Milliken v. Meyer,
311 U.S. 457, 463 (1940) (upholding jurisdiction over
domiciliary served outside the State).
These limits, whether flowing from the unconstitutional-conditions doctrine or due process, apply to
registration statutes. A State “may not, in imposing
conditions upon the privilege of a foreign corporation’s
doing business in the State, exact from it a waiver of
the exercise of its constitutional right to resort to the
federal courts.” Terral, 257 U.S. at 532-33. This Court
explained that barring foreign corporations conducting
in-state business “from exercising their constitutional
right to remove suits into Federal courts . . . is beyond
the State’s power,” Donald v. Phila. & Reading Coal &
Iron Co., 241 U.S. 329, 332 (1916), as federal judicial
authority is “wholly independent of state action, and
which therefore the several States may not, by any
18
exertion of authority in any form, directly or indirectly,
destroy, abridge, limit, or render inefficacious.” Harrison v. St. Louis & San Francisco R.R. Co., 232 U.S. 318,
328 (1914).
Registration conditions on interstate private carriers provide another example. Because “a State has no
power to fetter the right to carry on interstate commerce within its borders by the imposition of conditions or regulations” on interstate private carriers that
have “no relation to the public safety or order” or other
recognized police powers, Mich. Pub. Util. Comm’n v.
Duke, 266 U.S. 570, 577 (1925), California could not require private carriers to become subject to the duties
of public carriers as a condition for doing business in
the State. Frost & Frost Trucking Co. v. R.R. Comm’n of
Cal., 271 U.S. 583, 599 (1926). The States in such cases
lacked any sovereign authority or interest in hindering
the rights at issue, barring the States from conditioning their permission to conduct in-state business or to
access state courts on relinquishing federal rights.
States have undoubted sovereign interests in
hearing a variety of suits against foreign corporations
conducting in-state business operations. See infra II.D.
When pursuing such an interest, a proportionality exists between the obligation imposed and the State’s
grant of permission to the nonresident corporation to
use its courts and conduct in-state business activities.
But the State cannot compel the corporation to submit
to any and all claims filed against it divorced from any
recognized sovereign interest.
19
This proportionality requirement is a familiar constitutional constraint across various doctrines. The
government may condition a land-use permit on a relinquishment of private property when there is a
“nexus” and “rough proportionality” between the property demand and the effects of the private land use
authorized by the permit, but the government may not
leverage its conditions to pursue unrelated government objectives. Dolan, 512 U.S. at 386-92. A State’s
taxation power under the Due Process Clause depends
on “whether the state has given anything for which it
can ask return.” N.C. Dep’t of Rev., 139 S. Ct. at 2220
(quotation omitted). State “implied-consent” laws to
blood-alcohol testing as a condition for the privilege of
driving on its roads may provide civil or evidentiary
penalties but not criminal penalties on a refusal because “[t]here must be a limit on the consequences to
which motorists may be deemed to have consented by
virtue of a decision to drive on the public roads.” Birchfield v. North Dakota, 579 U.S. 438, 476-77 (2016). The
same here—a State may condition its permission to
use its courts and conduct in-state business activities
on a foreign corporation’s obligation to submit to jurisdiction in cases related to recognized sovereign interests, but it may not apply that consent in other cases
that do not implicate such an interest.
This comports with this Court’s early twentiethcentury precedent. Pennsylvania Fire upheld allpurpose jurisdiction under a corporate registration
statute when the nonresident corporation was “present” and doing business in the State, but this Court
20
in contemporaneous cases expressed discomfort with,
and indicated possible federal constraints on, employing a registration statute as an all-purpose jurisdictional submission without such presence.13 Under
jurisdictional law at the time, the State possessed a
sovereign interest in regulating any corporation “present” within its territory, whether the suit had any
other connection to the State. But without corporate
presence, the State had no recognized interest; thus,
the obligation of unconditional submission to the
State’s adjudicative power would run afoul of the same
constitutional principle that barred States from imposing a registration condition that nonresident corporations could not remove cases to federal court. While
this Court avoided the constitutional difficulty through
limited constructions of the state registration laws
under review in Chipman and its progeny, the Court’s
concerns align with a need for proportionality to a sovereign interest.
A contrary inference could be drawn from Bendix
Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S.
888, 889 (1988), but that inference misreads the relevant excerpt and, in any event, is based on dicta. Bendix held an Ohio statute that tolled limitations while a
nonresident corporation was without an in-state agent
for process violated the Commerce Clause. Id. at 894.
The appellee Midwesco argued that the challenged
statute was a “forced licensure provision” because, by
designating a statutory agent to prevent limitations
13
See supra Part II.A.
21
tolling, it “would submit itself to the general jurisdiction of the courts of Ohio for all purposes waiving its
personal jurisdiction defenses.”14 The appellant Bendix
accepted that all-purpose jurisdiction flowed from registering to do business; its argument was that such an
all-purpose jurisdictional submission was not a significant burden on commerce and other methods existed
to appoint an agent without registering and “surrendering to the general jurisdiction of the State.”15
While evaluating the resulting burden on interstate commerce, this Court echoed the parties’ positions,
stating the appointment would extend jurisdiction “to
any suit against Midwesco, whether or not the transaction in question had any connection with Ohio.”
Bendix, 486 U.S. at 892. This excerpt is best read as a
description of the operation of the state statute, not as
a legal conclusion on whether a registration statute, if
construed to support all-purpose jurisdiction regardless of a State’s interest in the dispute, is constitutional. Indeed, that issue was not presented in the case;
thus, whatever the import of the excerpt, it is quite
plainly dicta.
Under this Court’s longstanding precedent, registration statutes conferring consent jurisdiction over a
nonresident corporation cannot be constitutionally
applied unless the State has a sovereign interest in
the suit. For these cases, the permissible proportionality between the right being surrendered and the
14
15
Brief for Appellee at 4, Bendix (No. 87-367).
Brief for Appellant at 4-5, Bendix (No. 87-367).
22
obligation being imposed does not exist. On the other
hand, if a State has a proportionate sovereign interest
in the case—even though it may not satisfy the current
standards governing contacts-based specific jurisdiction—the Constitution’s demands have been satisfied.
C. The Commerce Clause Would Similarly
Necessitate a State Interest.
The limitations imposed by the dormant or negative Commerce Clause are not within the question
presented in this case. Yet an analysis under the Commerce Clause reinforces the necessity of a sovereign
interest to uphold state-court jurisdiction predicated
on corporate registration.
The dormant Commerce Clause invalidates a
State’s laws that burden out-of-state competitors or
the flow of interstate commerce without a sufficient local non-protectionist benefit. See McBurney v. Young,
569 U.S. 221, 235 (2013). Registration laws with jurisdictional consequences discourage out-of-state companies from doing business within a State, which
burdens the flow of interstate economic activity and
protects local businesses from outside competition.16 In
early twentieth-century cases, this Court recognized
that exorbitant state-law jurisdictional assertions violate the Commerce Clause. Davis v. Farmers’ Co-op.
Equity Co., 262 U.S. 312, 315-17 (1923), held that a
state statute authorizing service on a railroad soliciting agent was unconstitutional when the defendant
16
Preis, supra n.2, at 125.
23
conducted no in-state operations and the nonresident
plaintiff suffered an out-of-state injury. See also Mich.
Cent. R.R. Co. v. Mix, 278 U.S. 492, 494-95 (1929);
Atchison, Topeka & Santa Fe Ry. Co. v. Wells, 265 U.S.
101, 103 (1924).
These cases comport with the modern sovereign
interest analysis from Bendix. After concluding the
Ohio tolling statute significantly burdened out-of-state
companies by making them choose whether to submit
to jurisdiction for all transactions or forfeit a limitations defense, this Court held the burden on interstate
commerce exceeded “any local interests that the State
might advance,” as the State’s “legitimate sphere of
regulation” was not furthered by the tolling provision.
486 U.S. at 891-93. The tolling statute did not protect
an Ohio resident, this Court reasoned, as the State’s
long-arm statute would have permitted service on Midwesco throughout the limitations period. Because the
limitations period was tolled only for those foreign corporations not registering and submitting to general jurisdiction, the statute “impose[d] a greater burden on
out-of-state companies than it does on Ohio companies,” without serving any local benefit in protecting
the State’s citizens. Id. at 894.
This “local interest” implicating the State’s “legitimate sphere of regulation” is not required to equate
to the circumstances that authorize specific jurisdiction under a modern minimum-contacts analysis.17
17
See Preis, supra n.2, at 141-44; Rhodes & Robertson, supra
n.3, at 433-34.
24
Consider Denver & Rio Grande Western Railroad Co. v.
Terte, 284 U.S. 284, 286-87 (1932). After a Colorado
railroad workplace accident, the plaintiff became a
bona-fide Missouri resident and then sued his two employer railroads in Missouri. While the Commerce
Clause barred his suit against the railroad neither licensed to nor conducting in-state business, this Court
found jurisdiction proper over the Missouri-licensed
railroad even without any connection—other than the
current Missouri residence of the plaintiff and other
likely testifying witnesses—between the claim and the
forum State. Id.
The permissibility of registration-based consent
under the Commerce Clause reduces to whether “the
plaintiff is a true forum shopper,” i.e., a plaintiff choosing a “forum that has no relevance to the suit, save its
comparative likelihood to favor the plaintiff.”18 This
renders the State’s interest in the case insufficient to
support the corresponding burden on interstate commerce. Yet when the plaintiff is not shopping for plaintiff-friendly law or jurors, but instead sues in a natural
State convenient to the parties and witnesses, the
Commerce Clause is not offended when a registration
statute confers jurisdiction.
18
See Preis, supra n.2, at 133-34.
25
D. Registration Statutes Reciprocally Exchange Proportional Benefits and Obligations when State Interests Support
Jurisdiction.
Registration statutes reflect a negotiated balance
between public and private interests. Although the
Constitution places limits on the State’s authority to
condition its permission on the surrender of constitutional rights, such conditions are permissible in cases
supported by sovereign interests such as safeguarding
state citizens, protecting against in-state harms suffered by both citizens and visitors, and enforcing state
laws.
1. State Citizens. “Every State owes protection to
its own citizens.” Pennoyer, 95 U.S. at 723. A State
therefore has a “‘manifest interest’ in providing its residents with a convenient forum for redressing injuries
inflicted by out-of-state actors.” Burger King, 471 U.S.
at 473 (quoting McGee v. Int’l Life Ins. Co., 355 U.S. 220,
223 (1957)).
This interest extends beyond injuries its citizens
suffer within the State. The protection of local citizens
“is plainly a legitimate state objective,” although “the
State has no legitimate interest” in protecting nonresidents from harms arising from out-of-state transactions. Edgar v. MITE Corp., 457 U.S. 624, 644 (1982). A
State has an interest in “safeguarding its populace
from falsehoods,” even those targeted at nonresidents, Keeton v. Hustler Mag., Inc., 465 U.S. 770, 777
(1984); and a State may “protect its citizens from [the]
26
injustice” of seeking redress only in the distant State
of the defendant’s incorporation. Travelers Health
Ass’n v. Virginia, 339 U.S. 643, 649 (1950).
Under a minimum-contacts analysis, though, the
State’s interest in safeguarding its citizens does not always suffice to support specific jurisdiction, as the necessary purposeful availment or relationship to the
litigation may not exist. See Kulko v. Superior Court,
436 U.S. 84, 100-01 (1978) (recognizing California’s
“substantial interests in protecting resident children
and facilitating child-support actions on behalf of those
children,” but holding the forum to be unfair without
the defendant father’s purposeful contacts with the
State). But in the registration context, the analysis is
different—the only concern is the proportionality of
the conditions to the benefits received. And a corporation’s agreement to be amenable to suits brought by
state citizens in exchange for the State’s grant of permission to use its courts and conduct in-state business
activities carefully matches the benefits obtained and
obligations imposed.
2. In-State Harms. States also have an interest
in adjudicating claims of in-state harm, whether suffered by residents or visitors. This Court has recognized this interest in a variety of contexts, including
physical injuries, Ford, 141 S. Ct. at 1030; economic
losses, McGee, 355 U.S. at 222-23; and reputational
damage from defamation. Keeton, 465 U.S. at 776.
While an in-state harm typically supports specific jurisdiction under a minimum-contacts analysis, a State
still has an interest in conditioning its regulatory
27
approval to do business to a corporation on its agreement to be amenable in all suits brought by those suffering an in-state injury.
3. State Law. In addition to promoting the interests of its citizens, a State also has an independent interest in ensuring that corporations abide by state law
while transacting in-state business. For example,
States have a recognized interest in “enforcing their
own safety regulations.” Ford, 141 S. Ct. at 1030. And
States have an “interest in faithful observance” of their
regulatory schemes by nonresidents conducting activities subject to their legislative jurisdiction. Travelers,
339 U.S. at 648. While in most cases this interest authorizes the exercise of specific jurisdiction under the
minimum-contacts test, this does not discount a State’s
authority to request a corporation to register and provide its agreement to be amenable in cases related to
such significant sovereign interests.
Corporations have a choice to refuse to register.
States may only require registration under the
dormant Commerce Clause when a corporation is engaging in an ongoing and regular course of intrastate
or local business activity comparable in nature to a local business enterprise.19 Corporations engaged solely
in interstate business activities or who engage only in
isolated in-state transactions or mere solicitation
need not register, as isolated or independent intrastate activities, even if otherwise sufficient to establish
adjudicative jurisdiction, are insufficient to require
19
See Rhodes & Robertson, supra n.3, at 427.
28
registration. E.g., Neth. Shipmortgage Corp. v. Madias,
717 F.2d. 731, 726 (2d Cir. 1983); Long Mfg. Co. v.
Wright-Way Farm Serv., Inc., 214 N.W.2d 816, 818-20
(Mich. 1974).
Many corporations thus have alternative avenues,
even without registering to do business, to obtain economic benefits from a State. And even those in-state
business activities requiring registration could be performed by a related corporate entity that registers to
do business, with the granted jurisdictional consent
extending only to the registering entity. While these
options may not be available to all types of corporate
activities, including businesses operating a transportation network like Respondent,20 registration also
carries an important advantage: it permits the corporation to access the State’s courts as a plaintiff, allowing the corporation to file suit to enforce contracts and
other agreements with state residents. In this way, registration functions as a two-way street—it offers the
corporation the right to sue as a plaintiff in exchange
for the obligation to agree to be sued there.
Such an exchange furthers the same policies underlying other ex ante forum-selection agreements. The
corporation’s consent to jurisdiction spares litigants
and the judiciary from the burdens, expense, and
strain of jurisdictional discovery and pre-trial dismissal motions.21 The corporation, in turn, can structure
20
21
See Rensberger, supra n.8, at 365-66.
See Rhodes & Roberston, supra n.3, at 428.
29
its conduct in reliance on predictable jurisdictional
outcomes.
III. An All-or-Nothing Approach Would Undermine Interstate Federalism.
The parties to this case have staked out maximalist positions. Petitioner asserts that a State may require corporations to consent to jurisdiction for any
lawsuit as a condition of registration to do in-state
business. Respondent asserts that a State can never require foreign corporations to consent to jurisdiction as
a condition of doing business in the State.
Both these positions undermine the interests of interstate federalism, and both are inconsistent with this
Court’s prior recognition of state authority and the
constitutional limits that cabin that authority. And importantly, either approach would cause significant disruption in the management of national commerce and
dispute resolution.
Commerce naturally crosses state lines. This
Court’s minimum-contacts analysis generally ensures
that disputes arising from that commerce flow to forums with sovereign interests. Ford, 141 S. Ct. at 1025.
But there are circumstances where a forum State may
possess a strong interest in the suit—and may even be
the forum best suited to resolve it—although contacts
jurisdiction does not exist. When States foresee such
situations, their ability to obtain ex ante jurisdictional
consent facilitates interstate coordination.
30
States have pursued this course, employing jurisdictional consent—whether through corporate registration or another analogous state-law mechanism—
when their sovereign interests are implicated but
contacts jurisdiction is uncertain or unavailable. This
Court should not extinguish this existing jurisdictional
alternative.
1. Corporate Oversight. Shaffer v. Heitner, 433
U.S. 186, 216 (1977), held that a Delaware corporate
directorship alone did not support specific contacts jurisdiction in Delaware for a nonresident director’s corporate activities. In reaching this holding, this Court
highlighted that Delaware did not, like other States,
statutorily require directors to consent to jurisdiction
for suits related to their corporate duties. Id. This suggested that such consent statutes could support jurisdiction even when contacts analysis did not.
Days after Shaffer, Delaware enacted legislation
providing that nonresidents serving as officers of Delaware corporations consented to suit in Delaware for
litigation involving the corporation “in which such officer is a necessary or proper party, or in any action or
proceeding against such officer for violation of a duty
in such capacity, whether or not the person continues
to serve as such officer at the time suit is commenced.”
Del. Code tit. 10, § 3114. In upholding § 3114 after
Shaffer, the Delaware Supreme Court explained that,
“so long as the consent requirement serves a legitimate
State purpose,” it sufficed to establish jurisdiction
because the directors had explicit statutory notice
“that they could be haled into the Delaware Courts to
31
answer for the alleged breaches of the duties imposed
on them by the very laws which empowered them to
act in their corporate capacities.” Armstrong v. Pomerance, 423 A.2d 174, 176 (Del. 1980); see also Eurofins
Pharma US Holdings v. BioAlliance Pharma SA, 623
F.3d 147, 157-58 (3d Cir. 2010).22
States have also employed jurisdictional consent
when alterations in a corporation’s form may impact
the State’s jurisdictional reach. For example, New York
statutorily requires that, when a domestic corporation
merges with an out-of-state entity, the new entity consent to in-state service of process and resulting jurisdiction “for the enforcement of any liability or
obligation of any domestic corporation or of any foreign
corporation, previously amenable to suit in this state.”
N.Y. Bus. Corp. Law § 907(e)(1)(2)(E). This statute has
been employed to obtain jurisdiction over a corporate
successor that would not otherwise exist. See Armour
Handcrafts, Inc. v. Miami Decorating & Design Ctr.,
Inc., 99 A.D.2d 521, 521-22, 471 N.Y.S.2d 607, 608-09
(1984).
These statutes presuppose the validity of jurisdictional consent as an imposed condition when the State
22
In upholding § 3114’s prong for necessary-or-proper officer
parties in Hazout v. Tsang Mun Ting, 134 A.3d 274, 279 (Del.
2016), the court detailed that the statute includes “a safeguard
against overreaching, because a nonresident officer and director
can only be served in a case in which the corporation itself is a
party, and in which the officer or director is a necessary or proper
party to the suit,” thereby ensuring the implied-consent mechanism “only applies when a director or officer faces claims that
arise out his exercise of corporate powers.”
32
has sovereign interests in the dispute. A holding by
this Court accepting either of the parties’ positions
could upend this existing balanced approach.
2. Products and Torts Cases. Products-liability
and other torts cases sometimes fall in a gap where the
plaintiff cannot sue at home, or all the parties cannot
be sued in one forum, under either general or specific
contacts jurisdiction. One example is Cooper Tire &
Rubber Co. v. McCall, 863 S.E.2d 81 (Ga. 2021), petition
for cert. filed, No. 21-926 (Dec. 20, 2021). In that case, a
Florida resident, who was a passenger in a vehicle
driven by a Georgia resident, suffered severe injuries
in Florida when the vehicle’s rear tire allegedly failed;
the Florida plaintiff then sued the Georgia driver, the
Georgia car dealership that sold the used vehicle, and
the nonresident tire manufacturer in Georgia. Id. at
83. The Georgia Supreme Court upheld jurisdiction
over the nonresident tire manufacturer under the
State’s consent-by-registration scheme. Id. at 91-92.
It is uncertain whether Georgia could constitutionally exercise specific contacts-based jurisdiction
over the nonresident tire manufacturer. See Ford, 141
S. Ct. at 1030; cf. id. at 1035 (Gorsuch, J., concurring).
In any event, because of a quirk in Georgia’s long-arm
statute, only consent jurisdiction was available in
Cooper Tire. 863 S.E.2d at 91-92. But this exercise of
consent jurisdiction was appropriate and aptly supported by Georgia’s sovereign interests. Cooper Tire
was conducting in-state business activities necessitating its registration. One of its tires was on a vehicle
sold to a Georgia resident within the State that then
33
was involved in an accident in Florida, implicating
Georgia’s sovereign interests in protecting its citizens
from the in-state sale of defective and unsafe products.
Cooper Tire illustrates a common occurrence in
products-liability and other tort cases—while it may be
impossible to sue all the defendants in a single State
under contacts jurisdiction, consent jurisdiction supported by sovereign interests may fill that gap. Consent jurisdiction thereby may buttress other interstate
federalism policies. The joinder of all defendants in a
products-liability suit fulfills “the interstate judicial
system’s interest in obtaining the most efficient resolution of controversies.” World-Wide Volkswagen, 444
U.S. at 292. Moreover, it effectuates “the shared interest of the several States in furthering fundamental
substantive social policies.” Id.
Most States have adopted so-called “innocent
seller” exceptions to joint-and-several liability in products-liability cases. These statutes insulate retailers
from liability for defective products but commonly authorize retailer liability if the manufacturer is not
amenable to the State’s jurisdiction.23 The effectiveness of these laws therefore requires States to have
authority to join potentially responsible parties to the
suit. Restricting the States’ power to exercise personal
jurisdiction in products-liability cases undermines
state tort law and risks granting effective “immunity
23
E.g., Colo. Rev. Stat. § 13-21-402(2); Del. Code tit. 18,
§ 7001(c)(2); Minn. Stat. § 544.41 subdiv. 2(2).
34
from suit for manufacturers” that is at odds with state
substantive law.24
These examples illustrate that a State’s ability to
require jurisdictional consent—when applied to cases
implicating a legitimate state interest—protects the
negotiated give-and-take of state regulatory interests
within a functioning federalist system. As this Court
has explained, the Commerce Clause itself “was designed to prevent States from engaging in economic
discrimination so they would not divide into isolated,
separable units.” South Dakota v. Wayfair, Inc., 138
S. Ct. 2080, 2093-94 (2018). Recognizing the States’
limited power to require jurisdictional consent as a
condition of doing business promotes the interests of
interstate federalism that this Court has long sought
to protect. See Ford, 141 S. Ct. at 1030; Burger King,
471 U.S. at 473-74; World-Wide Volkswagen, 444 U.S.
at 292.
The States need some power to negotiate jurisdictional consent to ensure that they can enforce their
laws and protect their regulatory interests while opening their markets to nonresident business entities. But
that power cannot be unlimited; jurisdictional overreach encroaches on the interests of sister States,
threatening other States’ powers to protect their own
interests. A middle-ground approach would allow a
State to engage in jurisdictional negotiation but limit
the State’s permissible reach to the realm of the State’s
24
Alexandra D. Lahav, The New Privity in Personal Jurisdiction, 73 Ala. L. Rev. 539, 582 (2022).
35
sovereign interest. This approach is consistent with
this Court’s longstanding jurisdictional doctrine and
avoids the pitfalls of either of the more extreme positions staked out by the two parties.
Scholars (including some of the amici here) have
proposed registration schemes employing such a middle-ground approach to authorize a State’s sovereign
interests to fill in existing gaps in contacts jurisdiction.25 Consent jurisdictional schemes provide an opportunity for the legislature to signal the State’s
priorities to the judicial branch.26 Such schemes could
represent “a responsible way to address the challenges
posed by our changing economy in light of the Constitution’s text and the lessons of history.” Ford, 141 S. Ct.
at 1039 (Gorsuch, J., concurring).
---------------------------------♦---------------------------------
CONCLUSION
This Court should require that a State must have
a sovereign interest to support consent jurisdiction under a registration statute and remand for consideration
25
E.g., Robin J. Effron, The Lost Story of Notice and Personal
Jurisdiction, 74 N.Y.U. Ann. Surv. Am. L. 23, 99 (2018); Rhodes,
supra n.10, at 444-47; Rhodes & Robertson, supra n.3, at 411-15.
26
Aaron D. Simowitz, Jurisdiction as Dialogue, 52 N.Y.U. J.
Int’l Law & Politics 485, 525-26 (2020).
36
of whether the Pennsylvania statute can be constitutionally applied in this case.
Respectfully submitted,
ANDREW S. POLLIS
Counsel of Record
CASE WESTERN RESERVE
UNIVERSITY SCHOOL OF LAW
10900 Euclid Ave.
Cleveland, Ohio 44106
(216) 368-2766
andrew.pollis@case.edu
Counsel for Amici Curiae
JULY 12, 2022
CHARLES W. RHODES
SOUTH TEXAS COLLEGE OF
LAW HOUSTON
1303 San Jacinto St.
Houston, Texas 77002
(713) 646-2918
crhodes@stcl.edu
APPENDIX
App. 1
Amici Curiae Scholars of
Corporate Registration and Jurisdiction
This Appendix provides amici’s titles and institutional
affiliations for identification purposes only. The listing
of these affiliations does not imply the endorsement of
the view expressed herein by amici’s institutions.
Cassandra Burke Robertson
John Deaver Drinko—
BakerHostetler Professor of Law
Director, Center for Professional Ethics
Case Western Reserve University
School of Law
Charles W. “Rocky” Rhodes
Professor of Law
Charles Weigel II Research Professor
of State and Federal Constitutional Law
South Texas College of Law Houston
Robin Effron
Professor of Law
Co-Director, Dennis J. Block Center for the Study of
International Business Law
Brooklyn Law School
John F. Preis
Professor of Law
University of Richmond School of Law
Jeffrey L. Rensberger
Professor of Law
Charles Weigel II Research Professor
of Conflict of Laws
South Texas College of Law Houston
App. 2
Aaron Simowitz
Associate Professor
Director, The Business Lawyering Institute
Willamette University College of Law
Affiliated Scholar, The Classical Liberal Institute at
NYU School of Law
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