Following the Supreme Court’s landmark personal-jurisdiction decision in Bristol-Myers Squibb, federal district courts have continued to disagree about whether to apply the court’s holding to cases involving nationwide class actions. Although we believe the argument in favor of applying Bristol-Myers in the class context is overwhelming––after all, how could plaintiffs curtail defendants’ due process rights simply by invoking the procedural device of Rule 23?––the disagreement on this topic will very likely continue to deepen until it ripens into a circuit split that the court can resolve.

In Bristol-Myers Squibb, the Supreme Court held that a California state court was precluded from exercising personal jurisdiction over the defendant with respect to claims asserted by non-resident mass tort claimants. As Justice Sotomayor’s dissent noted, however, the holding of the majority did not explicitly address whether it applied to nationwide class actions.

Predictably, the majority’s silence on this issue has divided lower courts: “Whether Bristol-Myers extends to class actions is a question that has divided courts across the country.” See Chavez v. Church & Dwight Co., Inc., No. 17 C 1948, 2018 WL 2238191 at *10 (N.D. Ill. May 16, 2018), which dismissed claims of absent class members arising outside of the forum state.

While no circuit court has considered the issue, some federal district courts have applied Bristol-Myers Squibb to class actions:

  • Plumber’s Local Union No. 690 Health Plan v. Apotex Corp., Civ. A. No. 16-665, 2017 WL 3129147, at *9 (E.D. Pa. July 24, 2017) (dismissing non-Pennsylvania claims for certain defendants)
  • Spratley v. FCA US LLC, No. 3:17-CV-0062, 2017 WL 4023348, at *7–8 (N.D.N.Y. Sept. 12, 2017) (dismissing claims of out-of-state plaintiffs who had “shown no connection between their claims and Chrysler’s contacts with New York”)
  • In re Dental Supplies Antitrust Litig., No. 16 Civ. 696 (BMC)(GRB), 2017 WL 4217115, at *9 (E.D.N.Y. Sept. 2017) (“The constitutional requirements of due process does 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.”)
  • Maclin v. Reliable Reports of Texas, Inc., No. 1:17-CV-2612, 2018 WL 1468821 (N.D. Ohio Mar. 26, 2018) (“[T]he Court cannot envisage that the Fifth Amendment Due Process Clause would have any more or less effect on the outcome respecting FLSA claims than the Fourteenth Amendment Due Process Clause, and this district court will not limit the holding in Bristol–Myers to mass tort claims or state courts.”)
  • Roy v. FedEx Ground Package Sys., Inc., No. 3:17-CV-30116-KAR, 2018 WL 2324092, at *9 (D. Mass. May 22, 2018) (rejecting argument that Bristol-Myers Squibb should be limited to cases originally filed in state court but finding the exercise of jurisdiction appropriate on the facts of the case)
  • In re Nexus 6P Prods. Litig., No. 17-cv-02185-BLF, 2018 WL 827958 at *5–6 (N.D. Cal. Feb. 12, 2018) (allowing plaintiffs to re-plead complaint to allege jurisdiction in a manner consistent with Bristol-Myers)
  • McDonnell v. Nature’s Way Prods., LLC, No. 16 C 5011, 2017 WL 4864910 at *4–5 (N.D. Ill. Oct. 26, 2017) (dismissing claims “brought on behalf of non-Illinois residents or for violations of Florida, Michigan, Minnesota, Missouri, New Jersey, New York, and Washington law without prejudice”)
  • Wenokur v. AXA Equitable Life Ins. Co., No. CV-17-00165-PHX-DLR, 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 and therefore would not be able to certify a nationwide class.”)

One court has decided to hold the question open until class certification: Chernus v. Logitech, Inc., No.: 17-673(FLW), 2018 WL 1981481 (D.N.J. April 27, 2018), which recognized division in district court opinions regarding Bristol-Myers, found the balance weighing against applying it in the class context, then stated “no class has been certified, and therefore, to determine whether this Court has specific jurisdiction over Defendant with respect to the claims of the unnamed class members prior to class certification would put the proverbial cart before the horse.”

Some other courts have reached the opposite result. Several California district courts, for example, have opined that the Supreme Court’s holding in Bristol-Myers Squibb should be limited to mass tort cases based on the rationale that in such cases each plaintiff is named as an individual party and is a real party in interest:

  • Fitzhenry-Russell v. Dr. Pepper Snapple Group, Inc., No. 17-CV-00564 NC, 2017 WL 4224723 (N.D. Cal. Sept. 22, 2017)
  • Sloan v. General Motors LLC, 287 F. Supp.3d 840 (N.D. Cal. Feb. 7, 2018).
  • In re Morning Song Bird Foot Litig., No. 12-CV-01592 JAH-AGS, 2018 WL 1382746 (S.D. Cal. Mar. 19, 2018)

A few district courts outside of California have ruled similarly:

  • Molock v. Whole Foods Market, Inc., 297 F. Supp. 3d 114 (D.D.C. 2018)
  • Sanchez v. Launch Technical Workforce Solutions, LLC, 297 F. Supp. 3d 1360 (N.D. Ga. 2018)
  • Casso’s Wellness Store & Gym, L.L.C. v. Spectrum Lab. Prods., Inc., No. 17-2161 2018 WL 1377608 (E.D. La. March 19, 2018)
  • In re Chinese-Manufactured Drywall Prods. Liab. Litig., 2017 WL 5971622 (E.D. La. Nov. 30, 2017)

Given the importance of this issue and the divergent approaches taken by the federal district courts, it is clear that the appellate courts—and ultimately the U.S. Supreme Court—will eventually have to resolve the split. In fact, we may soon have the first federal circuit decision on this issue. The District of Columbia in the Molock case has recently certified the question of “whether the jurisdictional limits proscribed in Bristol-Myers Squibb extend to unnamed, nonresident members of a putative nationwide class in federal court” to the D.C. Circuit. See Molock v. Whole Foods Market Group, Inc., No. 16–cv–02483 (APM), 2018 WL 2926162 (June 11, 2018). It remains to be seen whether that interlocutory appeal will be accepted by the D.C. Circuit, but this is a case to watch.

In the meantime, defendants facing nationwide class action lawsuits should consider at the outset of the case whether to argue that the court lacks personal jurisdiction over the defendant with respect to claims asserted by non-resident putative class members (at least in venues that are not the defendant’s “home” jurisdiction). In some courts, this argument may be successful; it may serve to limit the aggregate value of the class claims, and potentially reduce the amount of discovery pain that class counsel can inflict. Even where not successful, there is value in preserving the argument by raising it in the answer and perhaps in an early motion to strike class allegations, before raising it again in opposition to class certification. No matter the precise procedures used, defendants will likely want to be in a position to benefit if the appellate courts ultimately determine that Bristol-Myers does apply equally to nationwide class actions. After all, personal jurisdiction is a waivable defense. While there may well be strategic reasons to waive the defense in a given case, that waiver should be a carefully considered, conscious choice. Inadvertent waiver by failure to preserve the argument is another thing entirely.