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ALF has filed an amicus brief in support of a second pending certiorari petition presenting the question of whether state consent-by-registration statutes violate the dormant Commerce Clause. The Supreme Court did not address this question when it held in Mallory v. Norfolk Southern Railway Co., 600 U.S. 122 (2023), that a Pennsylvania business registration statute requiring companies to consent to the state's general ("all-purpose") jurisdiction does not violate due process—at least if a company has substantial operations in the state.
Justice Alito explained at length in his separate opinion in Mallory that “there is a good prospect” that consent-by-registration violates the dormant Commerce Clause where a state asserts general jurisdiction “over an out-of-state company in a suit brought by an out-of-state plaintiff on claims wholly unrelated” to the state. See Mallory, 600 U.S. at 160 (Alito, J., concurring in part and concurring in the judgment). The dormant Commerce Clause prohibits a state from unduly restricting interstate commerce.
The pending certiorari petition in Norfolk Southern Railway Company v. Mallory (25-1208) arises from the same Mallory case that the Supreme Court addressed in 2023. While a Virginia resident, the plaintiff sued Norfolk Southern for exposure to carcinogens that he alleges occurred while working for the railroad in Ohio and Virginia. Norfolk Southern is a Virginia corporation that was headquartered in Virginia at the time the suit was filed. On remand from the Supreme Court's 2023 due-process decision, the notoriously plaintiff-friendly Philadelphia Court of Common Pleas rejected the dormant Commerce Clause argument, and the Pennsylvania appellate courts denied review of that ruling.
Like its recent amicus brief in BNSF Railway Co. v. Lynn (25-1046), which involves the Minnesota consent-by-registration statute, ALF's brief in Norfolk Southern v. Mallory explains that until the Court addresses the dormant Commerce Clause issue, Mallory will continue to undermine the civil justice system by incentivizing forum shopping and eroding interstate federalism.
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