Edward J. Sholinsky1, Philadelphia esholinsky@schnader.com

The U.S. Supreme Court granted certiorari in Mallory v. Norfolk Southern Railway Co. to resolve the question of “whether the Due Process Clause of the Fourteenth Amendment prohibits a state from requiring a corporation to consent to personal jurisdiction to do business in the state.” 2 Simply put, the issue is whether Norfolk Southern voluntarily consented to general jurisdiction in Pennsylvania when it registered to do business there as a foreign corporation.

The Court will review the Pennsylvania Supreme Court's holding that Pennsylvania's law subjecting to general jurisdiction a foreign corporation registering to do business there is unconstitutional. The Pennsylvania Supreme Court held that Norfolk Southern did not voluntarily consent to general personal jurisdiction by registering to do business in Pennsylvania.  Rather, the Court held that subjecting Norfolk Southern to general jurisdiction without voluntary consent unconstitutionally infringed on its due process rights. Per the Court, consent requires that the due process liberty interest must be “voluntarily, knowingly, and intelligently waived.”

Petitioner argued in his cert petition to the U.S. Supreme Court that the Pennsylvania Supreme Court had incorrectly interpreted “consent” because Norfolk Southern knew that consent to general jurisdiction was a prerequisite to doing business in Pennsylvania.  As a result, Petitioner argued the general jurisdiction analysis in Goodyear and Daimler were irrelevant.

Norfolk Southern responded that consent-by-registration would conflict with Goodyear and Daimler by subjecting foreign corporations to all-purpose jurisdiction just because they conducted business in Pennsylvania. Norfolk Southern argued that there is not voluntary consent when the only options are subjecting itself to general jurisdiction, stopping operations in Pennsylvania, or relinquishing the right to sue in Pennsylvania's courts.

The U.S. Supreme Court set a briefing schedule. Petitioner's merit brief is due on July 5. We will continue to report on the outcome and any other relevant happenings in the case. In addition, we will continue to monitor whether the Supreme Court will grant certiorari in Cooper Tire & Rubber Co. v. McCall, a similar, but less clear cut, case on appeal from the Georgia Supreme Court.

Footnotes

1. Taylor Horn, a Summer Associate with Schnader and rising 2L at Temple Law, contributed invaluable assistance for this article.

2. The Aviation Group previously reported on the Mallory decision in our December 24, 2021 client alert: “Pennsylvania Supreme Court Holds that Requiring Consent to Personal Jurisdiction in Order to Do Business in Pennsylvania Violates Due Process,” as well as the Spring 2022 edition of Aviation Happenings: “Plaintiffs Try to Find Loopholes in Landmark Mallory Decision.”

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