Let us be clear at the outset. We were shocked and appalled by the 5-4 result in Mallory v. Norfolk Southern Railway Co., 143 S. Ct. 2028 (2023), holding that phony “consent” to general jurisdiction does not offend constitutional Due Process when a state statutorily declares something less than “at home” status − corporate registration to do business – to be sufficient. “Of course, [plaintiff] no longer lives in Pennsylvania and his cause of action did not accrue there. But none of that makes any more difference” because the state “deemed” mere registration to do business to be “consent” to general jurisdiction.” Id. at 2037-38.
That result opened the door wide to plaintiffs’ forum shopping in Pennsylvania, and to any other state that may decide to enact a similar jurisdictional statute (none currently have) in the future. While that probably means more business for Pennsylvania defense counsel, we have never subscribed to the cynical “God bless those who sue our clients,” view of litigation. If we had, we never would have started, and maintained, this Blog.
However, as we read about California’s recent passage of legislation seeking to protect providers of “sensitive services” – those pertaining to “sexual and reproductive health,” “gender affirming care,” and certain other matters, Cal. Ins. C. §791.02 – Mallory gave us an idea for possible further protective measures against politically motivated litigation. According to the Legislative Counsel’s Digest, California’s recently enacted S.B. 345
- “[D]eclares as contrary to the public policy of this state a law of another state that authorizes a person to bring a civil action against a person or entity that engages in certain activities relating to obtaining or performing an abortion.”
- “[S]tate[s] that California law governs in any action against a person who provides or receives by any means, including telehealth, reproductive health care services or gender-affirming health care services, as specified, if the care was legal in the state in which it was provided.”
- “[D]eclare[s] as a violation of public policy a public act or record of a foreign jurisdiction that . . . authorizes a person to bring a civil action against a person, provider, or other entity in California for, among other acts, seeking or providing reproductive health care services, gender-affirming health care services, or gender-affirmative mental health care services.
California “public policy” thus now expressly rejects the “law of another state,” such as Tex. H. & S. C. §171.208, that would permit private actions against persons in California who provide legal (in California) “sensitive services” to persons who are citizens of such other states.
A Mallory-type personal jurisdiction “deemer” would seem congruent with this statement of California “public policy.” Specifically, under Mallory, California could “deem” the act of suing a California resident under such a statute to be “consent” to “general jurisdiction” in California. Cf. 18 U.S.C. §2334(e) (deeming certain activities involving “international terrorism” to be “consent” to jurisdiction in American courts).
Beyond that, California could enact a statute – or simply amend one of its existing consumer protection statutes – prohibiting such suits against California residents and giving them a cause of action against persons who bring such actions over the legal provision of “sensitive services.” Thus, anyone targeting a California citizen with an action under §171.208 could have to defend a countersuit in California. Tit for tat.
The recent California statutory amendments appear to do a good job of protecting California residents from foreign judgments and similarly protecting California health care providers from disciplinary action, as long as they stay in California. However, the amendments do nothing to deter the filing of “civil action[s] against a person or entity that engages in certain activities” in the first place, and thus cannot protect travelers from “tag” jurisdiction arising from such litigation. The only truly effective “public policy” deterrent is to give would-be filers of such “civil actions” a taste of their own medicine. By declaring the filing of such civil actions against California residents illegal, setting “damages” (perhaps treble what the other state allows plus attorney fees) and providing a basis for general jurisdiction over any miscreant who files such an action, California – or any other state with a similar “public policy” – could substantially deter, if not absolutely prevent, the filing of such obnoxious litigation ab initio.
Frankly, we’d rather not have to suggest such things (expansion of tort liability and personal jurisdiction) at all. We’re defense lawyers, and we’d much prefer that civil litigation never have been politicized at all. But it wasn’t our idea to draft civil litigation into the culture wars. So, while we didn’t start this battle, we do have some ideas about putting an end to it.