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In a 5 to 4 decision, the Supreme Court held in Mallory v. Norfolk Southern Railway Co., 600 U.S. 122 (2023), that a Pennsylvania statute explicitly providing notice that registering to do business in that state represents consent to the state’s general “all purpose” jurisdiction does not violate due process.
Mallory, however, left unanswered important constitutional questions that have produced significant uncertainty about whether or when an out-of-state corporation can be subjected to a state’s general jurisdiction merely by registering to do business. One of Mallory’s unanswered questions is whether consent-by-registration violates the Constitution’s dormant Commerce Clause. The pending certiorari petition in the latest iteration of the Mallory suit urges the Court to answer that question. See Norfolk S. Ry. Co. v. Mallory (25-1208).
Even if consent-by-registration does not violate the dormant Commerce Clause, Mallory leaves unanswered the due process question presented by the pending certiorari petition in Samsung Electronics America, Inc. v. Brewer (26-4): whether consent-by-registration requires explicit statutory notice, i.e., whether, absent explicit statutory notice, reading consent into a state’s general business registration statute denies due process to out-of-state corporations.
Brewer is a Georgia state court product-liability suit. Unlike Pennsylvania's consent-by-registration statute, Georgia's and most other states' business registration statutes do not notify out-of-state corporations that registering to do business means that they are consenting to a state's general jurisdiction.
ALF's Amicus Brief
ALF’s amicus brief supporting Samsung Electronics America’s certiorari petition argues that Mallory has destabilized the Court’s previously well-refined personal-jurisdiction jurisprudence. Absent explicit statutory notice and actual consent to a state's general jurisdiction, consent-by-registration is especially unfair to out-of-state corporations that register to do business in virtually every state merely to sell their products but otherwise lack even minimum contacts with the forum state.
ALF urges the Court to address, as Norfolk Southern Railway requests, the dormant Commerce Clause question that Mallory did not answer, or at least clarify, as Samsung Electronics America requests, whether consent-by-registration requires explicit statutory notice to afford due process to out-of-state corporations.
Unless and until the Court does so, Mallory will continue to undermine the civil justice system by incentivizing forum shopping and eroding interstate federalism. As it has in other recent cases, ALF’s brief discusses the unfairness of plaintiff-side forum shopping to courts whose jurisdiction over an out-of-state corporation is dubious at best. The brief also discusses the importance of protecting interstate federalism, i.e., the coequal status of each state under the Constitution.
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