Those of us who finished law school more than five or ten years ago learned about personal jurisdiction through the lens of International Shoe Co. v. Washington, 326 U.S. 310 (1945), and its focus on “minimum contacts” analysis. We learned that a company can be sued in any state with which it has significant, ongoing contacts, such as an office, employees or bank accounts.
That was then. Recently, the Supreme Court has begun to tell us we were all wrong for thinking that way. Daimler AG v. Bauman, 134 S. Ct. 746 (2014). Though the Daimler majority would have us think they are simply reinforcing what International Shoe really held, Justice Sotomayor described it as “a new rule of constitutional law that is unmoored from decades of precedent.” Daimler, 134 S. Ct. at 773. Our world has changed, and anyone suing or defending corporations must understand the new rules.
From “Minimum Contacts” to “Essentially at Home”
Federal courts ordinarily follow state law in determining the bounds of their personal jurisdiction. See Fed.R.Civ.P. 4(k)(1)(A) (service of process is effective to establish personal jurisdiction over a defendant “who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located”).
Historically, a state’s jurisdiction was limited to people who were physically present within the state’s borders. Pennoyer v. Neff, 95 U.S. 714 (1878). But that limitation was abandoned in International Shoe, which held that a state may authorize its courts to exercise personal jurisdiction over an out-of-state defendant if the defendant has “certain minimum contacts with [the State] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” 326 U.S. at 316 (quotation marks omitted). Thus was born the “minimum contacts” test, which requires a highly detailed factual analysis of the defendant’s contacts with the forum state.
International Shoe and the many cases that followed recognized two types of personal jurisdiction: general and specific. General jurisdiction arises when the defendant can be sued in a forum for claims that have nothing to do with its activities in that forum. International Shoe observed that “there have been instances in which the continuous corporate operations within a state were thought so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.” Int’l Shoe, 362 U.S. at 317-18. “International Shoe’s momentous departure from Pennoyer’s rigidly territorial focus … unleashed a rapid expansion of tribunals’ ability to hear claims against out-of-state defendants when … the defendant purposefully availed itself of the forum.” Daimler, 134 S. Ct. at 755.
In contrast, specific jurisdiction (what we often call long-arm jurisdiction) arises when the claim being asserted is related to the defendant’s activities in the forum: “‘Presence’ in the state in this sense has never been doubted when the activities of the corporation there have not only been continuous and systematic, but also give rise to the liabilities sued on, even though no consent to be sued or authorization to an agent to accept service of process has been given.” Int’l Shoe, 362 U.S. at 317.
Though specific jurisdiction is no doubt widely used against individuals and smaller businesses, it has long seemed almost unnecessary when dealing with large corporations. The Apples, GMs, Walmarts and MetLifes of the world certainly have “purposefully availed” themselves of practically any US forum any plaintiff might want to sue them in, whether by staffing offices or just registering to do business. So surely they are subject to general jurisdiction in all of those places. This is the thinking that the Supreme Court has told us is wrong.
The first significant case to “remind us” about the limitations on general jurisdiction over corporations is Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011). Goodyear stated that, under International Shoe, “[a] corporation’s continuous activity of some sorts within a state… is not enough to support the demand that the corporation be amenable to suits unrelated to that activity.” Rather, to support general jurisdiction, the “affiliations with the State [must be] so ‘continuous and systematic’ as to render them essentially at home in the forum State.” Id., at 919. Goodyear identified only two “paradigm bases for the exercise of general jurisdiction” – a corporation’s place of incorporation and its principal place of business. Id. at 924 (quotations marks and brackets omitted).
Could it really be true that Apple or Walmart can only be subject to general jurisdiction in two states? The answer under Goodyear is essentially yes, though Daimler acknowledged that there might be a little breathing room. Daimler reiterated the notion that there are only two “paradigm all-purpose forums” in which a corporation is subject to general jurisdiction. 134 S. Ct. at 760. But Daimler also recognized that the number of forums could be expanded in an “exceptional” case where “that corporation’s affiliations with the State are so continuous and systematic as to render it essentially at home in the forum State.” Id. at 761 (quotation marks and brackets omitted). The example of such an exceptional case the Court gave involved a Philippine corporation whose affairs were overseen in Ohio during World War II.
Under Goodyear and Daimler, “minimum contacts” remain relevant only in evaluating the constitutionality of specific or long-arm jurisdiction. When evaluating general jurisdiction, the largest companies in the world can only be sued in the one or two states where they are “essentially at home.” In other words, it does not matter how extensive the corporation’s contacts with the particular forum are; what is critical is whether the corporation has more extensive contacts (and therefore is at home) elsewhere.
Does Having an Agent for Service Matter?
But recall that International Shoe referred to finding jurisdiction “even though no consent to be sued or authorization to an agent to accept service of process has been given.” Int’l Shoe, 362 U.S. at 317. After Daimler, could corporations be “essentially at home” in a state in which they are registered or licensed to do business and have been required to appoint an agent for service of process? The consensus forming in the lower courts is: probably not.
The Delaware Supreme Court ruled that Daimler required it to overturn its previous precedent that registering to do business constituted a consent to general jurisdiction. Genuine Parts Co. v. Cepec, 137 A.3d 123, 126 (Del. 2016) held that, “after Daimler, it is not tenable to read Delaware’s registration statutes as” requiring a consent to general jurisdiction. The court stated that such a requirement would “exact unreasonable tolls simply for the right to do business[,]” and observed that a scheme “where every state can claim general jurisdiction over every business that does any business within its borders for any claim would reduce the certainty of the law and subject businesses to capricious litigation treatment as a cost of operating on a national scale or entering any state’s market.” Id. at 127–28.
Similarly, the Second Circuit observed that it likely would violate Daimler if Connecticut’s corporate registration statute required consent to general jurisdiction, but the Court then avoided reaching that issue by construing Connecticut’s statute as not requiring such consent. Brown v. Lockheed Martin Corp., 814 F.3d 619, 641 (2d Cir. 2016) (“in the absence of a clear legislative statement and a definitive interpretation by the Connecticut Supreme Court and in light of constitutional concerns, we construe Connecticut’s registration statute and appointment of agent provisions not to require registrant corporations … to submit to the general jurisdiction of Connecticut courts”). A number of other courts have adopted this reasoning, though there are some dissenters. In re: Zofran (Ondansetron) Prod. Liab. Litig., No. 1:15-CV-13760-FDS, 2016 WL 2349105 (D. Mass. May 4, 2016); Magna Powertrain De Mexico S.A. De C.V. v. Momentive Performance Materials USA LLC, No. 16-11249, 2016 WL 3574652 (E.D. Mich. June 16, 2016); Display Works, LLC v. Bartley, No. CV 16-583, 2016 WL 1644451 (D.N.J. Apr. 25, 2016); Aclin v. PD-RX Pharm. Inc., No. 5:15-CV-00561-R, 2016 WL 3093246 (W.D. Okla. June 1, 2016). But see Bors v. Johnson & Johnson, No. CV 16-2866, 2016 WL 5172816 (E.D. Pa. Sept. 20, 2016); In re Syngenta AG MIR 162 Corn Litig., No. 14-MD-2591-JWL, 2016 WL 2866166 (D. Kan. May 17, 2016).
Clearly, any lawyer defending a corporation now must return to first principles when a new lawsuit crosses her desk. Does the case implicate specific jurisdiction or general jurisdiction? If it is general jurisdiction, is the company “essentially at home” in the forum state? Will it be necessary or advisable to fight the constitutionality of the forum state’s business registration statute? But if you represent ERISA plans, sponsors or fiduciaries, your work is not done.
Does Daimler Change ERISA Jurisdiction? The National Contacts Test
A claim brought under ERISA, of course, raises a federal question. And ERISA contains its own venue provision and provides for nationwide service of process. 29 U.S.C. § 1132(e)(2) (an ERISA action “may be brought in the district where the plan is administered, where the breach took place, or where a defendant resides or may be found, and process may be served in any other district where a defendant resides or may be found”). Is this enough to change the personal jurisdiction analysis? The answer is a definite maybe.
Most circuits have adopted what is commonly referred to as the “national contacts test” when dealing with a federal statute that provides for nationwide service of process. Under this test, the relevant jurisdictional question is not whether the defendant has sufficient contacts with the state in which the district sits, but whether the defendant has sufficient contacts with the United States. Though different courts have followed different reasoning to get to that result, a typical explanation is that “when a federal court exercises jurisdiction pursuant to a national service of process provision, it is exercising jurisdiction for the territory of the United States and the individual liberty concern is whether the individual over which the court is exercising jurisdiction has sufficient minimum contacts with the United States[.]”Med. Mut. of Ohio v. deSoto, 245 F.3d 561, 567–68 (6th Cir. 2001). The First, Fifth, Seventh and Ninth Circuits essentially agree with this analysis. United Electrical, Radio & Machine Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d 1080, 1085 (1st Cir.1992); Busch v. Buchman, Buchman & O’Brien, Law Firm, 11 F.3d 1255, 1258 (5th Cir. 1994); Fitzsimmons v. Barton, 589 F.2d 330, 333 (7th Cir. 1979); and Go-Video, Inc. v. Akai Elec. Co., 885 F.2d 1406, 1415 (9th Cir. 1989).
The Tenth and Eleventh Circuits have adopted essentially the same rule, though they use a different framework to get there. Peay v. BellSouth Med. Assistance Plan, 205 F.3d 1206, 1213 (10th Cir. 2000); Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 948 (11th Cir. 1997).
The Second and Fourth circuits are curious, in that both have issued decisions that appear to apply the national contacts test or some variant. Texas Trading & Mill. Corp. v. Fed. Republic of Nigeria, 647 F.2d 300, 314 (2d Cir. 1981), cert. denied, 454 U.S. 1148 (1982); Denny’s, Inc. v. Cake, 364 F.3d 521, 524 (4th Cir. 2004). However, both later issued decisions saying that they had never adopted the test, Gucci Am. v. Li, 768 F.3d 122, 142 n. 21 (2d Cir.2014); United States v. Batato, 2016 WL 4254916, at *6 (4th Cir. Aug. 12, 2016).
Beyond providing for national service of process, ERISA also identifies the specific districts where an ERISA suit can be brought: “in the district where the plan is administered, where the breach took place, or where a defendant resides or may be found[.]” 29 U.S.C. § 1132(e)(2). Where an ERISA suit is brought in one of those districts, challenging the court’s personal jurisdiction is likely to be an uphill battle. See, e.g., Denny’s, Inc. v. Cake, 364 F.3d at 524 (requiring California Commissioner of Labor to defend ERISA claim in South Carolina: “since the Plan is administered in Spartanburg, South Carolina, and the Commissioner has been served in California, a district court sitting in South Carolina would have personal jurisdiction over the Commissioner under § 1132(e)(2)”). The Fourth Circuit in Denny’s was unconcerned with the Commissioner’s other contacts with South Carolina.
There are a couple of caveats to a discussion of the national contacts test. First, it still remains to be seen if, or how, Goodyear, Daimler, and their progeny impact the national contacts test, or ERISA’s venue provision. It seems likely, though, that the “essentially at home” doctrine from those cases should play a role in determining “where a defendant resides or may be found.”
Second, like any jurisdictional issue, the legal arguments can be complex, and there are nuances in different circuits that need to be understood and addressed on a case-by-case (or at least circuit-by-circuit) basis. For example, as noted above, most of the circuits that have recognized the test ground it on the assertion that jurisdiction is a question of the extent of the power of the sovereign. However, various circuits have debated whether the Supreme Court rejected that legal underpinning in Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites, 456 U.S. 694 (1982). Bauxites did not involve national service of process, but arguably held that personal jurisdiction is primarily a matter of fairness to the defendant, rather than sovereign power of the forum. There is a split in the circuits on the proper interpretation of Bauxites as it relates to the national contacts test. Compare Go-Video, supra, with Busch v. Burnham, supra.
Third, defense counsel should be aware of Fed.R.Civ.P 4(k)(2), which imposes a limited national contacts test for all federal claims, but only where “the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction[.]” Might it be possible to argue that Rule 4(k)(2) represents the only valid application of the national contacts test? Because it is hard to imagine an ERISA fiduciary that is not subject to jurisdiction in at least one state, this interpretation would effectively eliminate the national contacts test for ERISA cases. I am not aware of any circuit case considering this argument.
Fourth, several circuits, notably the Fourth, Tenth and Eleventh, have recognized that a defendant might successfully contest personal jurisdiction even when the national contacts test (or a similar formulation) applies. These circuits recognize that a defendant can attempt to show that litigating in a particular forum “would result in such extreme inconvenience or unfairness as would outweigh the congressionally articulated policy evidenced by a nationwide service of process provision.” Trustees of the Plumbers & Pipefitters Nat. Pension Fund v. Plumbing Servs., Inc., 791 F.3d 436, 444 (4th Cir. 2015) (quotation marks omitted). However, this exception is extremely limited, because, “when a defendant is a United States resident, it is highly unusual … that inconvenience will rise to a level of constitutional concern.” Id. (quotation marks omitted). And, as discussed above, ERISA provides for specific forums for litigation, so an inconvenience argument is likely to be even more difficult when one of the specifically identified forums is chosen.
The rules governing general jurisdiction over corporations have changed in the last five years, and most corporations may be subject to general jurisdiction in, at most, two states. Though it is debatable whether, or how much, this change benefits defendants in ERISA cases, there is no question that counsel for corporations in general, and ERISA fiduciaries in particular, need to carefully consider personal jurisdiction when confronting a new case.