Bristol-Myers—How Specific Is Specific Jurisdiction?
Bristol-Myers involved a state law mass tort action filed by a mix of California residents and nonresidents, alleging that a drug manufactured by defendant Bristol-Myers Squibb had damaged their health. Id. at 1777–78. The nonresident plaintiffs did not allege that general jurisdiction existed over Bristol-Myers Squibb in California, nor did they allege that they purchased, ingested, were prescribed, or were injured by the drug in California. Id. The defendant accordingly moved to quash service of summons as to the nonresidents’ claims, arguing that the California court lacked personal jurisdiction (general or specific) over it. Id. at 1778. Bristol-Myers Squibb did not contest jurisdiction with respect to the residents’ claims.
The California Supreme Court, in a divided opinion, held that California courts had specific jurisdiction over Bristol-Myers Squibb as to all plaintiffs’ claims. Id. at 1778–79. Relying on the defendant’s generally extensive contacts with the state and the fact that the nonresidents’ claims were substantially similar to those of the residents, the majority reasoned that personal jurisdiction was appropriate, even though there was “a less direct connection between BMS’s forum activities and plaintiffs’ claims.” Id. at 1779 (quoting Bristol-Myers Squibb Co. v. Superior Court of California (Bristol-Myers I), 1 Cal. 5th 783, 806 (2016)). The dissenters on the California Supreme Court observed that this so-called sliding-scale test “expand[ed] specific jurisdiction to the point that, for a large category of defendants, it becomes indistinguishable from general jurisdiction.” Id. (quoting Bristol-Myers I, 1 Cal. 5th at 816)).
The U.S. Supreme Court granted certiorari to consider whether the sliding-scale specific jurisdiction analysis accorded with Fourteenth Amendment due process. Id. at 1779. The majority found that it did not. The Court first laid out the standard for specific jurisdiction; namely, “there must be an affiliation between the forum and the underlying controversy, principally, an activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.” Id. at 1780 (citation omitted and alteration adopted). The Court noted that a “primary concern” in this analysis is the burden on the defendant of litigating in a forum that has little legitimate interest in the suit. Id.
Next, the Court applied this standard and found that the sliding-scale approach was prohibited by due process. Not only did it blur into general jurisdiction by considering Bristol-Myers Squibb’s general contacts with the state, but it also wrongly relied on the fact that other plaintiffs were allegedly injured in the state. See id. at 1781. Nor did the majority find persuasive the argument that the nonresidents’ claims were similar to those of the residents. See id. Ultimately, an “adequate link” must be identified between the state and the claims of each plaintiff. Id.
Significantly, the majority concluded by noting that, “since our decision concerns the due process limits on the exercise of specific jurisdiction by a State, we leave open the question whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court.” Id. at 1783–84. As discussed in the next section of this article, this remains an open question.
Justice Sotomayor dissented. Observing that everyone agreed the claims of all plaintiffs were substantially similar, she wrote that the majority had overlooked the question of fairness “[a]nd there is nothing unfair about subjecting a massive corporation to suit in a State for a nationwide course of conduct that injures both forum residents and nonresidents alike.” Id. at 1784 (Sotomayor, J., dissenting). She stressed that, given the acknowledged similarity of the claims, there was simply no reason to require separate suits by the residents and nonresidents. See id. at 1786–87. Under Justice Sotomayor’s reading of specific jurisdiction precedent, the “fair play and substantial justice” standard should be understood as more flexible than the majority allowed. See id. at 1788.
In the other key question left open by Bristol-Myers, Justice Sotomayor pointed out that the majority had not confronted “the question whether its opinion here would also apply to a class action in which a plaintiff injured in the forum State seeks to represent a nationwide class of plaintiffs, not all of whom were injured there.” Id. at 1789 n.4. This far-from-hypothetical question—which the majority indeed did not answer—has continued to haunt courts since.
The Split over Bristol-Myers’s Applicability to Federal Courts
Bristol-Myers explicitly left open the question of whether it applies to a federal court’s personal jurisdiction analysis. The Court did cite Omni Capital International, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 102 n.5 (1987), after the sentence flagging this open question. Bristol-Myers, 137 S. Ct. at 1784. But rather than answering the question, Omni Capital was apparently cited to support not answering the question. The federal/state issue has been addressed differently by federal courts around the country, with many applying Bristol-Myers but others limiting its reach based on the decision’s focus on federalism concerns. For federal class actions, this is a threshold question that must be answered before considering the question of class action applicability, discussed in in the third section in this article.
Bristol-Myers applies equally. Bristol-Myers is often applied federally when the court is sitting in diversity, applying state law—a scenario clearly analogous to the state law setup of Bristol-Myers. For example, in Fitzhenry-Russell v. Dr. Pepper Snapple Group, Inc., 2017 WL 4224723 (N.D. Cal. Sept. 22, 2017), the court rejected the plaintiffs’ argument that Bristol-Myers does not apply to federal courts because “federal courts routinely apply the specific jurisdiction analysis to defendants in cases that are before them solely on the basis of diversity.” Id. at *4 (citing examples). Because the analysis was the same, and the claims arose under state law, the court found that Bristol-Myers’s due process concerns do not disappear simply because a case is removed to federal court. See id. Other federal courts sitting in diversity have also applied Bristol-Myers. See, e.g., In re Morning Song Bird Food Litig., 2018 WL 1382746, at *5 (S.D. Cal. Mar. 19, 2018) (noting that the jurisdictional analyses are the same under state and federal due process law and that “Bristol-Myers is arguably instructive to federal courts”); McDonnell v. Nature’s Way Prods., LLC, 2017 WL 4864910, at *4 & n.7 (N.D. Ill. Oct. 26, 2017) (“Because the Court is exercising diversity jurisdiction and looking to Illinois law, however, Bristol-Myers Squibb Co. applies here.”); Wenokur v. AXA Equitable Life Ins. Co., 2017 WL 4357916, at *4 n.4 (D. Ariz. Oct. 2, 2017).
Federal courts have also applied Bristol-Myers to cases involving federal law claims, although this scenario is more removed from the facts of Bristol-Myers. For instance, in Roy v. FedEx Ground Package System, Inc., 2018 WL 2324092 (D. Mass. May 22, 2018), the court specifically rejected the plaintiffs’ argument that Bristol-Myers does not apply to a case in federal court raising federal law claims. See id. at *8–9. It reasoned that “there can be no doubt that the ‘settled principles’ of specific jurisdiction on which the Bristol-Myers Court relied apply here, notwithstanding that this case is pending in federal and not state court.” Id. at *9. The Roy court went on to cite several other federal district court decisions applying Bristol-Myers to federal law claims. See id. (citing cases involving the Telephone Consumer Protection Act (TCPA), Age Discrimination in Employment Act, and Fair Labor Standards Act); accord Practice Mgmt. Support Servs., Inc. v. Cirque du Soleil, Inc., 301 F. Supp. 3d 840, 860–62 (N.D. Ill. Mar. 12, 2018) (concluding that Bristol-Myers extends to federal courts and claims, at least insofar as the federal law claims “look to state law for the limits on personal jurisdiction,” as with the TCPA).
Bristol-Myers applies only to state courts. On the other hand, some district courts have declined to apply Bristol-Myers because of the decision’s apparent focus on federalism. In Sloan v. General Motors LLC, 287 F. Supp. 3d 840 (N.D. Cal. 2018), the Northern District of California explained that there were “unique interstate federalism concerns” at play in Bristol-Myers. Id. at 858–59. Specifically, Sloan noted how the Court was reluctant to force the defendant to submit to the jurisdiction of a sovereign state that had little connection to the nonresidents’ alleged injuries. Id. Sloan then compares this to a federal court:
In contrast to Bristol-Myers, the due process right does not obtain here in the same manner because all federal courts, regardless of where they sit, represent the same federal sovereign, not the sovereignty of a foreign state government. There is no risk of a state court exceeding the bounds of its state’s sovereignty and subjecting residents of another state to the coercing power of its courts. Therefore, where a federal court presides over litigation involving a federal question, the due process analysis does not incorporate the interstate sovereignty concerns that animated Bristol-Myers and which may be “decisive” in a state court’s analysis.
Id.
Other district courts have similarly distinguished Bristol-Myers. See, e.g., Thomas v. Kellogg Co., 2017 WL 5256634, at *1 (W.D. Wash. Oct. 17, 2017) (distinguishing Bristol-Myers as regarding “only the due process limits on the exercise of specific jurisdiction by a State” (quotation omitted)); Sanchez v. Launch Tech. Workforce Sols., LLC, 297 F. Supp. 3d 1360, 1366–67 (N.D. Ga. 2018) (rejecting the defendant’s personal jurisdiction argument, which relied on Bristol-Myers, in part because it “rest[ed] on federalism concerns that are not at issue here in federal court”).
Finally, a sizable group of courts have avoided addressing this issue, perhaps reflecting its difficulty. See, e.g., In re Samsung Galaxy Smartphone Mktg. & Sales Practices Litig., 2018 U.S. Dist. LEXIS 54850, at *8 (N.D. Cal. Mar. 30, 2018) (applying Bristol-Myers to a class action but issuing a stay and noting that it is willing to consider developments on this point during the pendency of the stay); Peters v. Wells Fargo Bank, N.A., 2018 U.S. Dist. LEXIS 6139, at *6 (N.D. Cal. Jan. 12, 2018); Weisheit v. Rosenberg & Assocs., LLC, 2018 WL 1942196, at *4–5 (D. Md. Apr. 25, 2018); Chernus v. Logitech, Inc., 2018 WL 1981481, at *7 (D.N.J. Apr. 27, 2018); Blitz v. Monsanto Co., 2018 WL 1785499, at *2 (W.D. Wis. Apr. 13, 2018); Thomas, 2017 WL 5256634, at *4.
The Split over Bristol-Myers’s Applicability to Class Actions
An even deeper split has formed over Bristol-Myers’s effect on class actions. Indeed, the District Court for the District of Columbia recently certified this question on interlocutory appeal to the D.C. Circuit—in what would be the first circuit court ruling on the matter—finding that there exists “a substantial ground for difference of opinion.” Molock v. Whole Foods Mkt. Grp. Inc., 2018 WL 2926162, at *2 (D.D.C. June 11, 2018). Not only did the court find a noteworthy (and roughly equal) split in authority nationwide, but it also found both positions to be supported by persuasive reasoning. Id. at *2–3.
This is perhaps the more meaningful of the two Bristol-Myers splits discussed here. If, on the one hand, Bristol-Myers applies to class actions, the path for plaintiffs to file a nationwide class action becomes much narrower Against two defendants that are “at home” in different states, a single action may be impossible because the plaintiffs could not advance the action in both states—let alone against a foreign defendant. See Bristol-Myers, 137 S. Ct. at 1789 (Sotomayor, J., dissenting). Defendants could also face more duplicative class actions filed in different jurisdictions. On the other hand, if Bristol-Myers does not apply to class actions, defendants may in some cases be subjected to suit in jurisdictions where there is no discernible connection to (at least some of) the plaintiffs’ alleged injuries.
Bristol-Myers applies to class actions. The Northern District of Illinois has repeatedly applied Bristol-Myers to class actions. Practice Management Support Services is one of the more recent and in-depth of these decisions. After analyzing Bristol-Myers and other relevant precedent, the court observed:
[I]t [is] not clear how [plaintiffs] can distinguish the Supreme Court’s basic holding in Bristol-Myers simply because this is a class action. The Supreme Court has emphasized that “Rule 23’s class action requirements must be interpreted in keeping with Article III constraints, and with the Rules Enabling Act, which instructs that the federal court rules of procedure ‘shall not abridge, enlarge, or modify any substantive right.’” The Supreme Court held in Bristol-Myers that the Fourteenth Amendment’s due process clause precludes nonresident plaintiffs injured outside the forum from aggregating their claims with an in-forum resident. Under the Rules Enabling Act, a defendant’s due process interest should be the same in the class context.
Id. at 861 (citations omitted and alterations adopted).
In other words, because Federal Rule of Civil Procedure 23 is subject to constitutional restraints, and because the Supreme Court in Bristol-Myers was applying such a constitutional restraint, class actions are subject to its holding. Rule 23 cannot grant jurisdiction where the Constitution does not permit it.
Courts in other districts have also applied Bristol-Myers to class actions, relying on similar reasoning. The Eastern District of New York, for instance, stated that “[t]he constitutional requirements of due process do[] not wax and wane when the complaint is individual or on behalf of a class. Personal jurisdiction in class actions must comport with due process just the same as any other case.” In re Dental Supplies Antitrust Litig., 2017 WL 4217115, at *9 (E.D.N.Y. Sept. 20, 2017). Likewise, the Northern District of Florida—in a split from other Florida district courts—applied Bristol-Myers to dismiss class action claims for lack of personal jurisdiction. See Howe v. Samsung Elecs. Am., Inc., 2018 WL 2212982, at *3–4 (N.D. Fla. Jan. 5, 2018) (“Rule 23 does not expand a court’s personal jurisdiction over a defendant. Absent a statute providing otherwise, a defendant who is not subject to personal jurisdiction on an individual claim also is not subject to jurisdiction on a class-action claim.”). Still other courts have suggested in dicta that they may hold the same. See, e.g., Wenokur, 2017 WL 4357916, at *4 n.4 (D. Ariz. Oct. 2, 2017) (“The Court also notes that it lacks personal jurisdiction over the claims of putative class members with no connection to Arizona. . . .”); Weisheit, 2018 WL 1942196, at *6 (“Plaintiff has a long road ahead in this proposed class action, and many hurdles stand in the way of bringing a class action against [the defendant] in this Court, including, potentially, the Court’s exercise of personal jurisdiction.”).
Bristol-Myers does not apply to class actions. A roughly equal contingent of courts have declined to apply Bristol-Myers in the class action context. The reasoning in Sanchez is typical. There, despite acknowledging “logical appeal” in the argument that Bristol-Myers applies, the Northern District of Georgia found material differences between class actions and mass actions. It first observed that whereas each plaintiff in a mass action is a real party in interest, unnamed members of a putative class action are represented by named plaintiffs, which is acceptable because of due process protections provided to such individuals through the class action mechanism. Sanchez, 297 F. Supp. 3d at 1365. Next, it examined due process protections afforded to defendants by the class action mechanism—namely, the certification requirements of Rule 23. Id. at 1366. These requirements, the court reasoned, ensure that all plaintiffs’ claims are fundamentally similar, which means there is “no unfairness in hauling the defendant into court to answer to it in a forum that has specific jurisdiction over the defendant based on the representative’s claim.” Id. Last, it catalogued the ways in which unnamed members of a putative class can be considered “non-parties” in certain situations, which it interpreted to mean that they should not be stripped from a class action on specific jurisdiction grounds. Id. at 1368–69.
Other courts have rejected Bristol-Myers in the class action context for similar reasons—sometimes creating intra-circuit splits in the process. See, e.g., Casso’s Wellness Store & Gym, L.L.C. v. Spectrum Lab. Prods., Inc., 2018 WL 1377608, at *5 (E.D. La. Mar. 19, 2018); Becker v. HBN Media, Inc., 2018 WL 3007922, at *2–3 (S.D. Fla. June 6, 2018); Tickling Keys, Inc. v. Transamerica Fin. Advisors, Inc., 2018 WL 1701994, at *6 (M.D. Fla. Apr. 4, 2018); Feller v. Transamerica Life Ins. Co., 2017 WL 6496803, at *16–17 (C.D. Cal. Dec. 11, 2017); Fitzhenry-Russell v. Dr. Pepper Snapple Group, Inc., 2017 WL 4224723, at *5 (N.D. Cal. Sept. 22, 2017); Day v. Air Methods Corp., 2017 WL 4781863, at *2 & n.1 (E.D. Ky. Oct. 23, 2017). But see Howe, 2018 WL 2212982, at *3–4 (intra-circuit and state split). Ultimately, as the D.C. District Court observed in Molock, meaningful arguments have been made on both sides of this split, and “reasonable jurists can, and have, disagreed about them.” 2018 WL 2926162, at *3.
Conclusion
The Supreme Court’s decision in Bristol-Myers left open questions that courts continue to grapple with. Given the breadth and depth of the resulting splits, the following table of outcomes by circuit may prove helpful.
Circuit
|
Applies to Federal Courts
|
Applies to Class Actions
|
|
Yes
|
No
|
Yes
|
No
|
1st
|
|
|
|
|
2d (intra-circuit split)
|
|
|
X[1]
|
X[2]
|
3d
|
|
|
X[3]
|
|
4th
|
X[4]
|
|
|
X[5]
|
5th
|
|
|
|
X[6]
|
6th (intra-circuit split)
|
X[7]
|
|
X[8]
|
X[9]
|
7th
|
X[10]
|
|
X[11]
|
|
8th
|
|
|
|
|
9th (intra-circuit split)
|
X[12]
|
X[13]
|
X[14]
|
X[15]
|
10th
|
|
|
|
|
11th (intra-circuit split)
|
|
|
X[16]
|
X[17]
|
D.C.
|
|
|
|
|
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[1] Spratley v. FCA US LLC, 2017 WL 4023348, at *6–7 (N.D.N.Y. Sept. 12, 2017).
[2] In re Dental Supplies Antitrust Litig., 2017 WL 4217115, at *9 (E.D.N.Y. Sept. 20, 2017).
[3] Horowitz v. AT&T Inc., 2018 WL 1942525, at *14–16 (D.N.J. Apr. 25, 2018); Chernus v. Logitech, Inc., 2018 WL 1981481, at *5–6 (D.N.J. Apr. 27, 2018).
[4] Branch v. Gov’t Emps. Ins. Co., 323 F.R.D. 539, 553 n.10 (E.D. Va. 2018) (citing two courts that “soundly” applied Bristol-Myers in this manner).
[5] Id.
[6] Casso’s Wellness Store & Gym, L.L.C. v. Spectrum Lab. Prods., Inc., 2018 WL 1377608, at *5 (E.D. La. Mar. 19, 2018); In re Chinese-Manufactured Drywall Prods. Liab. Litig., 2017 WL 5971622, at *11–21 (E.D. La. Nov. 28, 2017).
[7] Maclin v. Reliable Reports of Tex., Inc., 2018 WL 146882, at *4 (N.D. Ohio Mar. 26, 2018).
[8] Id.
[9] Day v. Air Methods Corp., 2017 WL 4781863, at *2 n.1 (E.D. Ky. Oct. 23, 2017).
[10] LDGP, LLC v. Cynosure, Inc., 2018 WL 439122, at *2 n.2 (N.D. Ill. Jan. 16, 2018).
[11] Chavez v. Church & Dwight Co., 2018 WL 2238191, at *9–11 (N.D. Ill. May 16, 2018); Al Haj v. Pfizer Inc., 2018 WL 1784126, at *5–6 (N.D. Ill. Apr. 13, 2018); Practice Mgmt. Support Servs., Inc. v. Cirque du Soleil, Inc., 301 F. Supp. 3d 840, 860–62 (N.D. Ill. Mar. 12, 2018); Anderson v. Logitech, Inc., 2018 WL 1184729, at *1 (N.D. Ill. Mar. 7, 2018); DeBernardis v. NBTY, Inc., 2018 WL 461228, at *2 (N.D. Ill. Jan. 18, 2018); Greene v. Mizuho Bank, Ltd., 289 F. Supp. 3d 870, 871–72 (N.D. Ill. 2017); McDonnell v. Nature’s Way Prods., LLC, 2017 WL 4864910, at *2 (N.D. Ill. Oct. 26, 2017).
[12] Fitzhenry-Russell v. Dr. Pepper Snapple Grp., Inc., 2017 WL 4224723, at *4 (N.D. Cal. Sept. 22, 2017).
[13] Sloan v. Gen. Motors LLC, 287 F. Supp. 3d 840, 858–59 (N.D. Cal. 2018).
[14] Wenokur v. AXA Equitable Life Ins. Co., 2017WL 4357916, at *4 n.4 (D. Ariz. Oct. 2, 2017); In re Samsung Galaxy Smartphone Mktg. & Sales Practices Litig., 2018 U.S. Dist. LEXIS 54850, at *8 (N.D. Cal. Mar. 30, 2018).
[15] In re Morning Song Bird Food Litig., 2018 WL 1382746, at *5–6 (S.D. Cal. Mar. 19, 2018); Feller v. Transamerica Life Ins. Co., 2017 WL 6496803, at *18 (C.D. Cal. Dec. 11, 2017); Swamy v. Title Source, Inc., 2017 WL 5196780, at *2 (N.D. Cal. Nov. 10, 2017); Fitzhenry-Russell v. Dr. Pepper Snapple Grp., Inc., 2017 WL 4224723, at *5 (N.D. Cal. Sept. 22, 2017).
[16] Howe v. Samsung Elecs. Am., Inc., 2018 WL 2212982, at *3–4 (N.D. Fla. Jan. 5, 2018).
[17] Becker v. HBN Media, Inc., 2018 WL 3007922, at *2 (S.D. Fla. June 6, 2018); Tickling Keys, Inc. v. Transamerica Fin. Advisors, Inc., 2018 WL 1701994, at *6 (M.D. Fla. Apr. 4, 2018); Sanchez v. Launch Tech. Workforce Sols., LLC, 297 F. Supp. 3d 1360, 1369 (N.D. Ga. 2018).
Pravin Patel and Corey Brady are associates in the Miami, Florida, office of Weil, Gotshal & Manges LLP. Daniel Guernsey is a rising third-year student at the University of Miami Law School.