Personal Jurisdiction in Class Actions After Bristol-Myers Squibb Co. v. Super. Ct. of Cal.

Bristol-Myers Squibb Co. v. Superior Court of Cal., 137 S. Ct. 1773 (2017), held that a state lacks personal jurisdiction over a defendant unless a connection exists between the defendant's activity in the forum state and the claims against it. Bristol-Myers concerned a mass action and the Supreme Court did not address, as Justice Sotomayor's dissent noted, how this holding would apply to a class action in which a plaintiff injured in the forum state seeks to represent a nationwide class of plaintiffs, not all of whom were injured there.

In three published decisions issued over a several week period earlier this year, the first three circuits to weigh in took different views. The Seventh Circuit court has held that Bristol-Myers was a mass tort case and, thus, did not apply to whether the court had personal jurisdiction over the defendant in a class action. The Fifth Circuit concluded that the issue of personal jurisdiction is not ripe until after class certification, apparently ignoring that personal jurisdiction over the defendant is a matter of due process. The D.C. Circuit reasoned that until a nonresident attempts to assert jurisdiction, Rule 12 motions cannot be made, but are not waived. And while there is at least some clarity on these issues in those three circuits, district courts in the other nine circuits have taken different approaches without guiding circuit precedent.

With conflicting judicial guidance on this issue, and because personal jurisdiction is fact intensive, counsel will want to be prepared to address and take advantage of all these arguments.

Listen as this distinguished panel discusses how to attempt to leverage these holdings to seek early dismissal, avoid "fishing expeditions" for qualified plaintiffs, and to then ensure that defendants' due process rights are protected.