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Beyond the Supreme Court’s rolling out the red carpet to forum shopping plaintiffs, the decision in Mallory v. Norfolk Southern Railway Co., 600 U.S. 122 (2023), was further disturbing to us in that Mallory suggested that a state could deem, through a “consent statute,” grounds for “consent” to general personal jurisdiction that were much less than the “at home” standard previously required for such broad jurisdiction.  Id. at 145-46 (“attach[ing] jurisdictional consequences to what some might dismiss as mere formalities” such as completing a registration form and recognizing jurisdiction from “actions . . . that may seem like technicalities”).  Those other examples, however, all involved limited “special” jurisdiction issues, not the far broader expanse of general personal jurisdiction.

Basing general jurisdiction on a technicality is precisely what the Pennsylvania statute at issue in Mallory does.  While the defendant in Mallory factually did plenty of business in Pennsylvania, id. at 141-43 (plurality opinion), all that the Pennsylvania statute at issue actually requires is registration.  See Webb-Benjamin, LLC v. International Rug Group, LLC, 192 A.3d 1133, 1135 (Pa. Super. 2018) (defendant registered in Pennsylvania, but never actually did business there, subjected to jurisdiction in suit over Canadian transaction the pre-dated the defendant’s registration).

However, the Mallory plurality did “not speculate whether any other statutory scheme and set of facts would suffice to establish consent to suit.”  Id. at 135.  So, maybe, if Webb-Benjamin had been appealed, rather than Mallory, the same statute would have been unconstitutional.

A recent appellate decision, Fuld v. Palestine Liberation Organization, 82 F.4th 74 (2d Cir. 2023), did enforce limits on deemed jurisdiction statutes.  Fuld addressed a federal anti-terrorism statute that purported to deem certain terrorist acts committed abroad as “consent” to jurisdiction in the United States.  This is a different aspect of the same well-intentioned, but misguided, statute that led to the ridiculous result in Atchley v. AstraZeneca UK Ltd., 22 F.4th 204 (D.C. Cir. 2022), that allowed a plaintiff to sue drug companies, rather than any actual terrorists.  Fuld dealt with a provision that sought to create personal jurisdiction through “deemed” consent:

[F]or purposes of any civil action under [the Act], a defendant shall be deemed to have consented to personal jurisdiction in such civil action . . ., regardless of the date of the occurrence of the act of international terrorism upon which such civil action was filed. . . .  

18 U.S.C. §2334(e) (emphasis added).  There follows a list of various acts that the statute purported to convert into “consent” – including these two that were at issue in Fuld:

  • Made certain payments to a “payee” designated by someone “imprisoned” for having committed an “act of terrorism that injured or killed a national of the United States,”
  • Made certain payments to “any family member” of a deceased terrorist.

18 U.S.C. §2334(e)(1)(A).

Relying in part on the Pennsylvania Supreme Court’s Mallory decision, the district court in Fuld had held this deemed jurisdiction unconstitutional as a violation of Due Process.  See Fuld v. Palestine Liberation Organization, 578 F. Supp 3d 577, 590 n.6 (S.D.N.Y. 2022).  After the Supreme Court’s Mallory reversal, the plaintiffs in Fuld claimed their statutorily deemed jurisdiction was, like Mallory, constitutional as a form of “consent.” 

Didn’t work out that way.

[C]onsent cannot be found based solely on a government decree pronouncing that activities unrelated to being sued in the forum will be “deemed” to be “consent” to jurisdiction there.  A prospective defendant’s activities do not signify consent to personal jurisdiction simply because Congress has labeled them as such.

82 F.4th at 88 (citations omitted).

Why not?  Because the defendant in Mallory “accepted a government benefit from the forum, in return for which the defendant is required to submit itself to suit in the forum” – it did business in the state where it registered.  82 F.4th at 90

A plurality of the Justices noted that this sort of “exchange” between the defendant and the forum − in other words, “consent to suit in exchange for access to a State’s markets” − “can signal consent to jurisdiction” in at least some cases.

Id. (quoting Mallory plurality opinion).  The overseas defendants in Fuld, by comparison, did not engage in any similar bargain.  The consent statute “does not purport to determine that any litigation-related conduct on the part of the [defendants] constitutes implied consent to jurisdiction” in the United States.  Id. at 91.  The purported “consent” was not “in exchange for, or as a condition of, receiving some in-forum benefit or privilege.”  Id.

Thus the acts specified in the statute deemed to be “consent” had no bearing on anything related to the courts of this country, and deeming them to be jurisdictional consent violated Due Process:

[S]uch activities allegedly constitute “consent” . . . only because Congress has labeled them that way . . . − conduct which, on its own, cannot support a fair and reasonable inference of the defendants’ voluntary agreement to proceed in a federal forum.  This declaration of purported consent, predicated on conduct lacking any of the indicia of valid consent previously recognized in the case law, fails to satisfy constitutional due process.

Id.  The only acts that a statute can constitutionally deem to be “consent” are “involve[] a defendant’s litigation-related conduct, or a defendant’s acceptance of some in-forum benefit conditioned on amenability to suit.”  Id. at 93

Mallory did not save the statutory deemer in Fuld.  The Pennsylvania statute “supported a finding of consent to jurisdiction because it ‘gave the [defendant] the right to do business in-state in return for agreeing to answer any suit against it.’”  Fuld, 84 F.4th at 95 (quoting Mallory plurality).  “Because the defendant ‘had taken full advantage of its opportunity to do business’ in [Pennsylvania], the plurality found no due process concern in enforcing its consent to jurisdiction against it.”  Id. at 96 (again quoting Mallory plurality).  By contrast, the terrorism statute “does not offer any in-forum benefit, right, or privilege . . . in exchange for [defendants’] submission to the federal courts.  Id.   Further, “‘deemed consent,’ absent some exchange of benefits, has never been recognized as a means of valid consent to personal jurisdiction.”  Id. at n.13.

There’s more to Fuld, such as a lengthy discussion of limitations on waivers of other constitutional rights, id. at 98-101, but the discussion of statutory deemers in the context of personal jurisdiction is what interests us.  Fuld is persuasive precedent that, after Mallory, a state cannot deem other, non-litigation related, activities as some form of consent to general (or specific) personal jurisdiction.  That a defendant has, for example, sought and obtained FDA approval of a product cannot be deemed conduct that, without more, constitutes “consent” to jurisdiction in any particular state.  Cf. Vaughan v. Olympus America, Inc., 208 A.3d 66 (Pa. Super. 2019) (finding presence of FDCA-mandated “regulatory agent” of overseas corporation established personal jurisdiction) (discussed in more detail here).  Indeed, given the reasoning in Fuld, it would be difficult to justify the jurisdictional result in Webb-Benjamin, supra, where registration alone was held to have retroactively created a basis for generic preemption.

One thing that Fuld’s emphasis on the distinction between “litigation related” and “non-litigation related” activities as a basis for deemed consent to personal jurisdiction would seem to allow would be our “jurisdictional silver lining” suggestion that State A could deem, as consent to jurisdiction in that state, that a resident of State B initiated suit under State B’s abortion harassment statute over a legal procedure that occurred in State A – for purposes of allowing a counter suit brought in State A by anyone sued under State B’s law.  The commencement of litigation against a state’s citizens over legal activities that occurred in that state seems sufficiently “litigation related” to support jurisdiction over the non-resident State B defendant for the limited purpose of a State A countersuit.  Accord Levine v. Palestine Liberation Organization, ___ F. Supp.3d ___,  2023 WL 6121196, at *5-6 (D. Colo. Aug. 23, 2023) (also holding Mallory inapplicable).

In any event, we’ll be watching to see if Fuld is appealed to the Supreme Court.