Mallory v. Norfolk Southern: Due Process and Requiring Out-of-State Firms to Consent to Personal Jurisdiction

This CLE course will discuss the ramifications of Mallory v. Norfolk Southern Railway Co., __ U.S. __ (June 27, 2023), and its application to other cases. The panel will analyze the Court's reasoning, the issues raised in Justice Alito's opinion concurring in part and in the judgment, and the arguments of the dissent to help counsel for both plaintiffs and defendants assess the decision’s consequences for personal jurisdiction.

In Mallory, the Court held that the Due Process Clause of the Fourteenth Amendment does not prohibit a state from requiring out-of-state corporations to consent to personal jurisdiction to do business there. Justice Alito (concurring in the judgment) even wrote (in dicta) that nothing in the Due Process Clause prohibits forum shopping--by corporate or individual plaintiffs.

The dissent contends the holding is a sea change in the Court's personal jurisdiction jurisprudence and that the Due Process Clause permits only two types of personal jurisdiction over a corporate defendant.

According to Justice Alito, however, the federalism concerns in consent-by-registration laws as broad as Pennsylvania's are better analyzed under the dormant Commerce Clause than under the Due Process Clause. Whether these statutes survive such a dormant Commerce Clause test and whether that line of inquiry will yield more certainty or less forum shopping is yet to be seen.

Listen as this experienced panel discusses the ramifications and responses to Mallory and considers how litigants might argue for or against jurisdiction and whether broad jurisdiction-by-consent statutes may not pass muster under the dormant Commerce Clause.