Updating Our Post-Bauman 50-State Survey On General Jurisdiction By Consent

Not quite a year ago, we prepared a 50-state survey on the status of claims that a foreign corporation's compliance with a state's corporate domestication statutes can be "consent" to general personal jurisdiction. This post went along with one of the DDL Blog's cheat sheets called the " Post-BMS Personal Jurisdiction Cheat Sheet."

Because Bexis recently filed an amicus brief on this subject in Pennsylvania, in connection with which he had occasion to update the law in this field, particularly as to Pennsylvania's vexed situation. Unlike almost every other state in the union, since Daimler AG v. Bauman, 571 U.S. 117 (2014) ("Bauman"), Pennsylvania seems to be doubling down on general jurisdiction by consent. Since everybody else is marching in the other direction, we've decided to incorporate a detailed critique of Pennsylvania developments into an updated version of our 50-state survey. We also wish to recognize, again, Reed Smith attorney Kevin Hara, without whose efforts the original 50-state survey could not have been created.

We start with the century-old Supreme Court case, Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917) ("Pa. Fire"). Although it has yet to address Pa. Fire directly, the Supreme Court requires that "all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny." Shaffer v. Heitner, 433 U.S. 186, 212 (1977). In Bauman, the Supreme Court cautioned that "cases decided in the era dominated by Pennoyer's territorial thinking should not attract heavy reliance today." 134 S. Ct. at 761 n.18 (citation omitted). Thus:

Pennsylvania Fire cannot be divorced from the outdated jurisprudential assumptions of its era. The sweeping interpretation . . . [of] a routine registration statute and an accompanying power of attorney that Pennsylvania Fire credited as a general "consent" has yielded to the doctrinal refinement reflected in Goodyear and [Daimler] and the Court's 21st century approach to general and specific jurisdiction.

Brown v. Lockheed-Martin Corp., 814 F.3d 619, 639 (2d Cir. 2016). Pa. Fire "represent[s] a disfavored approach to general jurisdiction." Segregated Account of Ambac Assurance Corp. v. Countrywide Home Loans, Inc., 898 N.W.2d 70, 82 (Wis. 2017). "Pennsylvania Fire has yielded to the two-prong analysis for long-arm jurisdiction set forth in recent decades by the Supreme Court." Magwitch, LLC v...