We’ve been closely watching the pending U.S. Supreme Court case Bristol-Myers Squibb Co. v. Superior Court, because the personal jurisdiction question put to the Court could greatly affect where (and how) mass torts are litigated. In this case, California plaintiffs and nonresident plaintiffs are suing BMS for injuries allegedly caused by Plavix, a cardiovascular medication that the company created and marketed in the US. The Court is being asked to decide whether Bristol-Meyer Squibb’s California activities are sufficiently related to the nonresident plaintiffs‘ suits to support their invocation of specific jurisdiction in California.
A lingering question in our minds has been whether the answer to this question would also resolve questions regarding personal jurisdiction in class actions in which a single court is asked to rule on class claims of resident and non-resident plaintiffs. The (acting) Solicitor General has now filed an amicus brief in support of BMS, and his answer–No–is quite the surprise.
Here’s what the SG had to say:
The issue before the Court, as framed by Bristol-Meyers Squibb, is “whether a plaintiff’s claims arise out of or relate to a defendant’s forum activities when there is no causal link between the defendant’s forum contacts and the plaintiff’s claims—that is, where the plaintiff’s claims would be exactly the same even if the defendant had no forum contacts.”
This case does not present any question concerning whether a state court may entertain class actions, under established rules, to resolve claims arising from conduct in multiple jurisdictions. In particular, it does not present the question whether it is sufficient that the claims of named plaintiffs arise from conduct occurring within the forum State, or whether the Fourteenth Amendment also requires that claims of nonnamed plaintiffs arise from conduct occurring within the State. See Devlin v. Scardelletti, 536 U.S. 1, 9-10 (2002) (stating that “[n]onnamed class members * * * may be parties for some purposes but not for other” purposes); see also id. at 10 (noting that nonnamed class members are “not parties” with respect to determining diversity for purposes of jurisdiction).
And here’s what the SG didn’t say. There is no mention of federal court authority here–just state court authority to entertain class actions, even though state courts and federal courts sitting in diversity are governed by the same rules: Personal jurisdiction exists if the state’s long-arm statute applies and due process under the Fourteenth Amendment is satisfied. Nor does the SG mention Supreme Court cases in which no one even thought to challenge a trial court’s jurisdiction over a defendant in a nationwide class action. See, e.g., Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985).
So, we’re left to guess how the SG would describe longstanding cases like Shutts or the exercise of personal jurisdiction in the class context. Given the hard stance the SG takes in this amicus brief against the California Supreme Court’s treatment of personal jurisdiction, perhaps we should be thankful it didn’t say more.