{"id":2536,"date":"2021-07-28T18:54:00","date_gmt":"2021-07-28T23:54:00","guid":{"rendered":"https:\/\/blog.northwesternlaw.review\/?p=2536"},"modified":"2024-01-23T17:31:17","modified_gmt":"2024-01-23T23:31:17","slug":"personal-jurisdiction-in-class-actions-after-bristol-myers-squibb-how-ford-may-foreshadow-the-supreme-courts-answer","status":"publish","type":"post","link":"https:\/\/blog.northwesternlaw.review\/?p=2536","title":{"rendered":"Personal Jurisdiction in Class Actions After Bristol-Myers Squibb: How Ford May Foreshadow the Supreme Court\u2019s Answer"},"content":{"rendered":"\n

Federal circuit courts have recently split over applying Bristol-Myers Squibb Company v. Superior Court<\/em><\/a> (BMS<\/em>) to class actions. The Supreme Court\u2019s watershed personal jurisdiction opinion in 2017 held that courts can only exercise specific personal jurisdiction over plaintiffs\u2019 claims that arise out of or relate to defendants\u2019 conduct in the forum state. But BMS<\/em> did not resolve whether federal courts must find specific personal jurisdiction over absent class members in addition to named class representatives. Nor did the Court\u2019s more recent personal jurisdiction decision in Ford Motor Company v. Montana Eighth Judicial District Court<\/em><\/a>. Yet Ford<\/em>, by declining to limit the exercise of specific personal jurisdiction to cases in which there is a direct causal link between plaintiffs\u2019 injuries and defendants\u2019 in-state conduct, may have hinted at the Court\u2019s eventual answer.<\/p>\n\n\n\n

A court\u2019s power to resolve disputes requires both personal jurisdiction\u2014over the parties\u2014and subject matter jurisdiction\u2014over the type of claim. For the exercise of personal jurisdiction to satisfy the Fourteenth Amendment\u2019s due process clause, defendants must have \u201cminimum contacts\u201d<\/a> with the forum state. Personal jurisdiction can be general or specific<\/a>. Courts have general jurisdiction over defendants whose in-state activities render them \u201cat home\u201d<\/a> in the forum. Assuming subject matter jurisdiction is also proper, general jurisdiction allows a court to hear all claims against a defendant\u2014notwithstanding the location of the defendant\u2019s conduct and the connection of the plaintiffs\u2019 injuries thereto. If general jurisdiction is lacking, a court may still exercise specific jurisdiction if the defendant \u201cpurposefully avails\u201d<\/a> itself of the benefits of doing business in the forum state, and the plaintiffs\u2019 injuries \u201carise out of or relate to\u201d the defendant’s in-state conduct. Unlike general jurisdiction, courts must limit their exercise of specific jurisdiction to claims with a connection to activities in the forum state.<\/p>\n\n\n\n

BMS<\/em><\/a> was a mass tort action in California state court involving Bristol-Myers Squibb (BMS), a large pharmaceutical company incorporated in Delaware, with headquarters in New York and substantial activity in New Jersey. Over 600 consumers of a BMS-manufactured drug called Plavix sued BMS in California, alleging various claims under California law. The state\u2019s highest court ruled that specific jurisdiction was constitutionally permissible, even though BMS\u2019s activity in California was insufficient to establish general jurisdiction. This meant that the court could hear claims arising out of BMS\u2019s conduct within California. But the Supreme Court reversed: The California court could not exercise specific personal jurisdiction over claims of injured plaintiffs who were not residents of California and who did not purchase Plavix through BMS\u2019s California distributor. The Court focused on BMS\u2019s link to California, and the small amount of business it did in that state compared to its overall operations\u2014holding that BMS\u2019s Fourteenth Amendment due process right required that each plaintiff\u2019s claim \u201carise out of or relate to\u201d<\/a> BMS\u2019s conduct within the forum state.<\/p>\n\n\n\n

More recently, Ford<\/em><\/a> refused to read BMS<\/em> as a bar to two state courts\u2019 exercise of specific personal jurisdiction. The Ford <\/em>plaintiffs, similar to those in BMS<\/em>, alleged injuries from products\u2014cars rather than pills\u2014which Ford sold outside of the forum states. Yet, over Ford\u2019s argument that BMS<\/em> required a tight connection between the defendant\u2019s conduct, the forum state, and the plaintiff\u2019s injury, the Court reframed BMS<\/em> as a case about forum shopping<\/a>\u2014a term that describes (and often denounces) strategic forum selection. The BMS <\/em>plaintiffs, the Ford <\/em>Court explained, \u201csu[ed] in California because it was thought plaintiff-friendly, even though their cases had no tie to the State.\u201d Conversely, the Ford<\/em> plaintiffs resided in the forum states, drove the allegedly defective cars in the forum states, and suffered injuries in the forum states. The Court’s reframing allowed for a broader conception of specific jurisdiction. Clinging to the latter half of the phrase, \u201carise out of or relate to<\/em>,\u201d the Court reasoned that the missing link in BMS<\/em> need not be causal in all cases.<\/p>\n\n\n\n

The ongoing viability of nationwide class actions could hinge on whether and how BMS<\/em>, as refined by Ford<\/em>, applies to class actions. In theory<\/a>, class actions promote efficiency\u2014reducing litigation costs and deterring unlawful behavior by providing a day in court for plaintiffs with claims too small to justify bringing individual suits. But since Rule 23<\/a> of the Federal Rules of Civil Procedure allows representative class members to allege claims on behalf of large absent classes without their affirmative consent, nationwide class actions can put defendants\u2019 financial well-being on the line without compensating absent class members<\/a>. Crucially, the ability of plaintiffs\u2019 lawyers to collect the claims of injured plaintiffs from different states for class resolution in a single forum depends on courts\u2019 capacity to exercise personal jurisdiction over those claims. So as several lawyers and law professors<\/a> suggested in 2017, BMS<\/em> appeared to mark \u201cthe end of an era\u201d<\/a> for nationwide<\/a> and multistate class actions. Yet the era endures\u2014for now at least.<\/p>\n\n\n\n

Since BMS<\/em>, lower federal courts have divided<\/a> over whether specific personal jurisdiction\u2014unlike subject matter jurisdiction<\/a> and venue<\/a>\u2014is necessary to bind defendants with adjudications of absent class members\u2019 claims. Most of these courts have held that if there is specific jurisdiction over the claims of representative class members, establishing personal jurisdiction over absent class members\u2019 claims is unnecessary. In March 2020, the Fifth<\/a>, Seventh<\/a>, and D.C. Circuits<\/a> became the first federal appellate courts to weigh in. The Sixth Circuit<\/a> joined them this year. And in May 2021, the Ninth Circuit heard oral arguments on the issue in Moser v. Benefytt, Inc<\/em><\/a>.<\/p>\n\n\n\n

In Mussat v. IQVIA<\/em><\/a>, the Seventh Circuit held in a putative class action that only named representative class members must establish a court\u2019s personal jurisdiction over their claims, not absent class members. The court reasoned around BMS<\/em> by designating the plaintiff class as a singular \u201clitigating entity,\u201d relying also on the Supreme Court\u2019s consistent failure<\/a> to<\/a> mention<\/a> personal jurisdiction in nationwide class actions. The Sixth Circuit reached a similar outcome in Lyngaas v. Curaden AG<\/em><\/a>, declining to extend BMS<\/em> to a class action.<\/p>\n\n\n\n

By contrast, the D.C. Circuit did not reach the issue in Molock v. Whole Foods Market Group<\/em><\/a>. Specifically, the court determined that the question of class certification must come before the personal jurisdiction question because putative class members do not become parties until certification<\/a>. The Fifth Circuit followed similar logic in Cruson v. Jackson National Life Insurance Company<\/em><\/a>.<\/p>\n\n\n\n

No federal circuit court has yet extended BMS<\/em> to find personal jurisdiction lacking over absent class members\u2019 claims. But a number of federal<\/a> district<\/a> courts<\/a> have<\/a> done<\/a> so<\/a>, and vigorous<\/a> dissents<\/a> accompanied the Sixth and D.C. Circuits\u2019 decisions. While this issue may appear ripe for Supreme Court review, the Court\u2019s denial of certiorari in IQVIA<\/em><\/a> may indicate its desire to hear from additional circuit courts.<\/p>\n\n\n\n

Even if a uniform solution is several years down the pike, the Ford<\/em> Court\u2019s reasoning may shift the personal jurisdiction landscape for class actions. In many nationwide class actions under Rule 23<\/a>, where the claims of absent class members lack a direct causal connection to the forum, the defendant\u2019s activities in the forum may nevertheless be sufficient to support specific personal jurisdiction\u2014that is, if \u201cnotions of fair play and substantial justice\u201d<\/a> require the inquiry at all. Absent evidence of forum shopping, which Ford <\/em>suggested was central to BMS<\/em>\u2019s holding, the Court appears willing to adopt a flexible approach to personal jurisdiction in class actions. Indeed, the Moser <\/em>plaintiffs submitted a letter<\/a> to the Ninth Circuit arguing that Ford<\/em> resolves the personal jurisdiction issue in their favor.<\/p>\n\n\n\n

It is questionable whether class actions deserve a different personal jurisdiction standard from other civil suits, even if that is emerging as the majority approach. Arguably<\/a>, the Rules Enabling Act<\/a> denies Rule 23<\/a>, a mere procedural device, the power to \u201cabridge, enlarge, or modify\u201d any substantive rights\u2014including defendants\u2019 due process rights, which might deprive a forum of specific personal jurisdiction over absent class members\u2019 claims in otherwise identical individual civil suits. Nonetheless, Ford<\/em> appears to foreshadow the continuing vitality of nationwide and multistate federal class actions.<\/p>\n\n\n\n

Connor Cohen is a J.D. candidate (\u201922) at Northwestern University Pritzker School of Law and a Managing Editor of Volume 116 of the Northwestern University Law Review. He graduated from the University of North Carolina School of the Arts, where he received his bachelor\u2019s degree in dance.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Federal circuit courts have recently split over applying Bristol-Myers Squibb Company v. Superior Court (BMS) to class actions. The Supreme Court\u2019s watershed personal jurisdiction opinion in 2017 held that courts can only exercise specific personal jurisdiction over plaintiffs\u2019 claims that arise out of or relate to defendants\u2019 conduct in the forum state. But BMS did not resolve whether federal courts must find specific personal jurisdiction over absent class members in addition to named class representatives. Nor did the Court\u2019s more…<\/p>\n

Read More Read More<\/span><\/a><\/p>\n","protected":false},"author":165,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[55],"tags":[],"class_list":["post-2536","post","type-post","status-publish","format-standard","hentry","category-board-member-contribution"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p9jSvD-EU","jetpack-related-posts":[{"id":58,"url":"https:\/\/blog.northwesternlaw.review\/?p=58","url_meta":{"origin":2536,"position":0},"title":"BIPA and Its Federal Problems","author":"Alexander Ogren","date":"November 8, 2017","format":false,"excerpt":"It's not fun to have your credit card or identity stolen. 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