By Anand Agneshwar and Paige Sharpe, Partners with Arnold & Porter, Mr. Agneshwar in the New York, NY office and Ms. Sharpe in the Washington, DC office. Mr. Agneshwar co-chairs the firm’s Product Liability Litigation group.

Nihil consensus tam contrarium est quam vis.—Nothing is so contrary to consent as force.

Jurisdictional jurisprudence has undergone a seismic shift in recent years with the Supreme Court’s trio of cases circumscribing the places in which an out-of-state defendant can be haled into court consistent with the Fourteenth Amendment.  In Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011), and Daimler AG v. Bauman, 571 U.S. 117 (2014), the Court made clear that a defendant is subject to general personal jurisdiction—that is, jurisdiction over claims brought by anyone, arising anywhere—only in the state where the defendant is “at home.”  For a corporation, that virtually always means its state of incorporation or principal place of business.  Daimler AG, 571 U.S. at 137.  Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017), similarly limited the bounds of specific personal jurisdiction, instructing that a non-resident plaintiff can sue an out-of-state defendant in a given state consistent with the Fourteenth Amendment only if that defendant’s in-state conduct is connected to that plaintiff’s claims.  These were not close decisions.  Goodyear and Daimler were 9-0, and Bristol-Myers Squibb was 8-1.

But none of these decisions squarely addressed a lingering “back of the brief” argument that plaintiffs have been making with increasing frequency:  that a company can consent to general personal jurisdiction by registering to do business within a state (“registration jurisdiction”).  To be sure, the majority of courts have rejected this argumentBut a handful have found that registration waives or satisfies due process concerns.  Compare, e.g., Genuine Parts Co. v. Cepec, 137 A.3d 123 (Del. 2016) (rejecting registration jurisdiction), with Spanier v. Am. Pop Corn Co., No. C15-4071-MWB, 2016 WL 1465400 (N.D. Iowa Apr. 14, 2016) (allowing registration jurisdiction).  It is time for this expansive view of general jurisdiction over out-of-state companies to be shut down once and for all.  (This Legal Opinion Letter does not address consent jurisdiction in other contexts.)