In the span of two days, two United States Court of Appeals held that a nationwide class action could proceed against a defendant as long as the named plaintiff could satisfy specific personal jurisdiction. See Molock v. Whole Foods Market Grp., Inc., ___ F.3d ___, 2020 WL 1146733 (D.C. Cir. March 10, 2020); Mussat v. IQVIA, Inc., ____ F.3d. ____, 2020 WL 1161166 (7th Cir. March 11, 2020).
In Molock, “the defendant moved to dismiss all nonresident putative class members for lack of personal jurisdiction.” The district court denied the motion on the merits. On interlocutory appeal, a United States Court of Appeals for the District of Columbia panel held 2-1 that “[b]ecause the class in this case has yet to be certified, [defendant’s] motion to dismiss the putative class members [for lack of personal jurisdiction] is premature.” Specifically, the Court noted “[p]utative class members become parties to an action—and thus subject to dismissal—only after class certification.” Judge Laurence H. Silberman dissented, saying the motion was not premature, that he would have granted the defendant’s motion, and that “[a]lthough the Supreme Court avoided opining on whether its reasoning in the mass action context [in Bristol-Myers] would apply also to class actions, it seems to me that logic dictates that it does.”
While the D.C. Circuit panel refrained from explicitly ruling on the issue, the Seventh Circuit panel did not exercise such restraint. Instead, the Seventh Circuit panel in Mussat held 3-0 that “the principles announced in Bristol-Myers do not apply to the case of a nationwide class action filed in federal court under a federal statute.”
In Mussat, the defendant “moved to strike the class definition, arguing that the district court did not have personal jurisdiction over the non-Illinois members of the proposed nationwide class.” The district court agreed, granting the motion to strike “reasoning that under the Supreme Court’s decision in Bristol-Myers , not just the named plaintiff, but also the unnamed members of the class, each had to show the minimum contacts between the defendant and the forum state.”
On appeal, the Seventh Circuit panel, comprised of Chief Judge Diane Wood, Judge Michael Kanne, and Judge Amy Coney Barrett, reversed. The Seventh Circuit decision, authored by Chief Judge Wood, noted that “[t]he Supreme Court has regularly entertained cases involving nationwide classes where the plaintiff relied on specific, rather than general, personal jurisdiction in the trial court, without any comment about the supposed jurisdictional problem [defendant] raises.”
After providing this general observation, the Seventh Circuit panel turned to distinguishing Bristol-Myers. Bristol-Myers, the panel reasoned, concerned a “coordinated mass action” pursuant to California law. Id. This distinction, according to the panel, made Bristol-Myers inapposite because “[c]lass actions . . . are different from many other types of aggregate litigation, and that difference matters in numerous ways for the unnamed members of the class.”
Continuing with this analysis, the Seventh Circuit panel noted that “[t]he proper characterization of the status of absent class members depends on the issue.” Critical to this analysis, according to the panel, “absent class members are not considered parties for assessing whether the requirement of” diversity jurisdiction “[n]or are absent class members considered when a court decided whether it is the proper venue.”
Thus, the Seventh Circuit panel saw “no reason why personal jurisdiction should be treated any differently from subject-matter jurisdiction and venue: the named representatives must be able to demonstrate either general or specific personal jurisdiction, but the unnamed class members are not required to do so.”
In the end, these opinions should be an important consideration for all defendants in analyzing potential future exposure. Had either Court of Appeals found in favor of the defendant and applied the principles of Bristol-Myers, nationwide class actions would, “as a practical matter, [have] be[en] impossible any time the defendant [was] not subject to general jurisdiction.” Thus, such nationwide (and likely multi-state) class actions would only proceed if the defendant was “at home.” Now, these opinions keep the door open for potential, nationwide (or even multi-state) class action litigation in any jurisdiction where a named plaintiff can satisfy specific personal jurisdiction, though Judge Silberman’s dissent provides a slight glimmer of hope that perhaps other courts could one day extend Bristol-Myers to class actions.
As for this threshold, the United States Supreme Court is scheduled to hear oral argument this term on a case that could have impact on this inquiry. See Ford Motor Company v. Bandemer, 19-369. In Bandemer, the Supreme Court will decide whether specific personal jurisdiction is proper “when none of the defendant’s forum contacts caused the plaintiff’s claim, such that the plaintiff’s claims would be the same even if the defendant had no forum contacts.” See Petition For A Writ of Certiorari, at i.