My partner Joe Blum and I recently published an article on Mallory v. Norfolk Southern Railway Co. and the General Jurisdiction Consent Battle.

We discuss that courts have continued to address the theory that a corporate defendant consents to personal jurisdiction in a state’s courts merely by registering to do business in that state. Such cases raise serious issues of Constitutional interpretation.

In the seminal decision International Shoe Co. v. Washington, 326 U.S. 310 (1945), the United States Supreme Court clarified that the Due Process Clause of the Fourteenth Amendment protects the defendant’s liberty interest in not being subject to the binding judgment of a forum with which the defendant has insufficient “contacts, ties, or relations.” International Shoe made it clear that a tribunal’s authority depends upon the defendant’s minimum contacts with the forum state such that the maintenance of the suit “does not offend traditional notions of fair play and substantial justice.”  Recent jurisprudence has made clear that a corporation is at home for general jurisdiction where it is incorporated, or where it has its headquarters, and almost never anywhere else.

The plaintiffs’ bar has increasingly turned to business registration statutes as a vehicle to argue personal jurisdiction by consent, even if the statute provides inadequate notice, and even when a foreign corporation is given no choice, making the waiver of due process rights an unconstitutional condition. We discuss the recent cases and the chances the Supreme Court will take on this issue.