Mallory v. Norfolk Southern: Due Process and Requiring Out-of-State Firms to Consent to Personal Jurisdiction
Ensuring Equal Treatment for Individuals and Fictitious Corporate Persons

Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Class Action and Other Litigation
- event Date
Tuesday, August 29, 2023
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE course will discuss the ramifications of Mallory v. Norfolk Southern Railway Co., __ U.S. __ (June 27, 2023), and its application to other cases. The panel will analyze the Court's reasoning, the issues raised in Justice Alito's opinion concurring in part and in the judgment, and the arguments of the dissent to help counsel for both plaintiffs and defendants assess the decision’s consequences for personal jurisdiction.
Faculty

Author of Federal Appellate Practice: Ninth Circuit (2015-2016 ed.), a 1,500-page treatise published annually, Mr. Cooper is respected as a leading practitioner before the U.S. Court of Appeals for the Ninth Circuit. In addition, he has represented parties and amici curiae in the U.S. Supreme Court and the Second, Third, Fifth, Tenth, Eleventh, D.C. and Federal Circuits, as well as various state appellate courts. Mr. Cooper is a past chair of the ABA’s Council of Appellate Lawyers and began his legal career as a law clerk to Ninth Circuit Judge (and later Chief Judge) Alex Kozinski.

Mr. Dodrill counsels and represents corporate and individual clients in federal and state courts in Texas and other jurisdictions across the country. He has a diverse litigation practice that includes complex commercial disputes, business torts, financial services litigation, data privacy actions, legal malpractice defense, and internal investigations. Mr. Dodrill has significant experience in multi-district litigation and class action defense.

Mr. Sullivan's litigation practice focuses on high-profile, complex commercial litigation and tort litigation, including class actions, multi-district litigation, and other aggregate litigation throughout the United States. He has extensive experience in complex civil litigation across a variety of industries, practice areas, and geographies, and he has particularly deep experience defending class actions, commercial disputes in the life sciences and health care industries, and in toxic and mass tort litigation. Mr. Sullivan has represented companies in matters involving complex financial issues, construction and building materials, automobiles, pharmaceuticals, third-party payors, ERISA, RICO, supply and distribution issues, food and beverage labeling, and various consumer products and contracts. Many of these matters have been litigated against the backdrop of criminal and/or regulatory enforcement efforts. He has played a lead role at trials in state and federal court in which he has examined fact and expert witnesses, and he has argued appeals. Mr. Sullivan also has extensive arbitration experience. He also maintains an active pro bono practice committed to litigating issues of systemic justice.
Description
In Mallory, the Court held that the Due Process Clause of the Fourteenth Amendment does not prohibit a state from requiring out-of-state corporations to consent to personal jurisdiction to do business there. Justice Alito (concurring in the judgment) even wrote (in dicta) that nothing in the Due Process Clause prohibits forum shopping--by corporate or individual plaintiffs.
The dissent contends the holding is a sea change in the Court's personal jurisdiction jurisprudence and that the Due Process Clause permits only two types of personal jurisdiction over a corporate defendant.
According to Justice Alito, however, the federalism concerns in consent-by-registration laws as broad as Pennsylvania's are better analyzed under the dormant Commerce Clause than under the Due Process Clause. Whether these statutes survive such a dormant Commerce Clause test and whether that line of inquiry will yield more certainty or less forum shopping is yet to be seen.
Listen as this experienced panel discusses the ramifications and responses to Mallory and considers how litigants might argue for or against jurisdiction and whether broad jurisdiction-by-consent statutes may not pass muster under the dormant Commerce Clause.
Outline
- Jurisdiction by consent statutes overview
- Review of Mallory decision
- Plurality opinion
- Justice Alito's opinion concurring in part and in the judgment
- Dissent
- Strategies for plaintiffs
- Strategies for defendants
Benefits
The panel will consider these and other key issues:
- Would a contrary result in Mallory have given an out-of-state company more rights and privileges and fewer liabilities, restrictions, duties, and penalties than those imposed on domestic entities?
- Why was the Court concerned with the potential disparate treatment of the hypothetical conductor and Norfolk Southern?
- Did Mallory substantially broaden the bases for general personal jurisdiction over out-of-state corporations for claims brought by out-of-state plaintiffs or simply change the battlefield?
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