Pennsylvania law requires foreign corporations to register to do business in the Commonwealth and provides that all registrants are subject to suit on “any cause” in the Commonwealth’s courts, regardless of a connection to the jurisdiction. In a split decision, the Supreme Court reversed a Pennsylvania Supreme Court decision finding that this general jurisdiction provision violated the Due Process Clause. Mallory v. Norfolk So. Railway Co., 600 U.S. __ (2023) (slip op. available here).

Writing in part for a plurality and in part for the Court, Justice Gorsuch wrote that Pennsylvania’s statute operated as consent to general jurisdiction by registering corporations, and that such consent comports with the Due Process Clause under pre-International Shoe precedent. See Slip. Op. at 10 (Part III.B); Penn. Fire Ins. Co. of Phila. v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917); International Shoe Co. v. Washington, 326 U.S. 310 (1945). As summarized in a footnote to Justice Gorsuch’s plurality opinion, five justices agreed that: (1) “Norfolk Southern consented to suit in Pennsylvania”; (2) “Pennsylvania Fire therefore controls this case”; (3) “Pennsylvania Fire’s rule for consent-based jurisdiction has not been overruled”; (4) International Shoe applies only “where a defendant has not consented to” jurisdiction; and (5) exercising jurisdiction in Mallory is “hardly unfair.”  Slip. Op. at 23 n.11 (plurality).

Justice Alito concurred in part and in the judgment. He agreed that Pennsylvania Fire was controlling, but wrote separately to offer his view that the Pennsylvania registration statue likely violates the dormant Commerce Clause. Under Justice Alito’s view, the Due Process Clause “confers a right on ‘person[s],’ not States,” and therefore was not the proper frame for analyzing whether Pennsylvania’s registration statute unconstitutionally intrudes on other states’ prerogatives. Slip. Op. at 8 (Alito, J., concurring) (internal citation omitted). But, as Justice Alito put it, Pennsylvania Fire “is not the end of the story for registration-based jurisdiction.” Slip. Op. at 5 (Alito, J., concurring). Additionally, his view on the consent issue appeared motivated at least in part by Norfolk Southern’s level of activity in Pennsylvania, suggesting that a company with less forum activity may have seen a different result.

The remaining members of the majority offered no view on the dormant Commerce Clause issue, noting that the Pennsylvania Supreme Court had not considered it and that the question remained live on remand. Slip. Op. at 4 n.3. Justice Barrett, writing for a four-member dissent, would have held that International Shoe overruled Pennsylvania Fire. The dissent situated analysis of federalism concerns in the court’s typical Due Process Clause test for personal jurisdiction. Slip. Op. at 1 (Barrett, J., dissenting). Justice Barrett wrote that the majority’s approach did “not formally overrule our traditional contacts-based approach to jurisdiction, but it might as well.” Id. The dissent offered no analysis of the Commerce Clause.

The immediate impact of Mallory is somewhat narrow: the dissent noted that Pennsylvania is currently the only state with a statute of the sort at issue in Mallory, although the Georgia Supreme Court has also applied a consent theory to hold that corporations choosing to do business in the State implicitly consent to general jurisdiction there. See Slip. Op. at 9–10 & n.2 (Barrett, J., dissenting). Therefore, in most states where a corporation is not incorporated or headquartered, the traditional “minimum contacts” analysis should continue to apply. Companies that are registered to do business in Pennsylvania and Georgia may wish to reassess whether that registration is necessary, or if the general jurisdiction risk posed by those states’ consent requirements is too high. Companies should also keep an eye on legislative activity in other states in the wake of Mallory. Finally, in the appropriate case, out-of-state defendants subject to a required jurisdictional consent regime might want to consider challenging the court’s jurisdiction based on the Commerce Clause.

Photo of Isaac Chaput Isaac Chaput

Isaac Chaput is a commercial litigator who handles complex civil disputes including class action cases, arbitrations, and investigations. They have experience in trademark, trade secret, patent, antitrust, False Claims Act, breach of contract, and other commercial matters.

Isaac works with clients across a…

Isaac Chaput is a commercial litigator who handles complex civil disputes including class action cases, arbitrations, and investigations. They have experience in trademark, trade secret, patent, antitrust, False Claims Act, breach of contract, and other commercial matters.

Isaac works with clients across a range of industries including technology, consumer products, pharmaceuticals, and payments, using their substantive experience in all stages of litigation, including trial and appeals in both federal and state court. In addition, Isaac maintains an active pro bono practice, including representing a leading national organization dedicated to reducing gun violence.

Earlier in their career, Isaac was the Legal Intern to Nina Totenberg at NPR, assisting Ms. Totenberg in her reporting on the Supreme Court of the United States.

Photo of Andrew Soukup Andrew Soukup

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which…

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which were defeated through dispositive pre-trial motions.
Andrew is co-chair of the firm’s Class Action Litigation practice group.

Andrew has helped his clients achieve successful outcomes at all stages of litigation, including through trial and appeal. He has helped his clients prevail in litigation against putative class representatives, government agencies, and commercial entities. Representative victories include:

  • Delivered wins in multiple nationwide class actions on behalf of large financial companies related to fees, disclosures, and other banking practices, including the successful defense of numerous lenders accused of violating the Paycheck Protection Program’s implementing laws, which contributed to Covington’s recent recognition as a “Class Action Group Of The Year.”
  • Successfully defending several of the nation’s leading financial institutions in a wide variety of litigation and arbitration proceedings involving alleged violations of RICO, FCRA, TILA, TCPA, FCBA, ECOA, EFTA, FACTA, and state consumer protection and unfair and deceptive acts or practices statutes, as well as claims involving breach of contract, fraud, unjust enrichment, and other torts.
  • Successfully defended several of the nation’s leading companies and brands from claims that they deceptively marketed their products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
  • Obtained favorable outcomes for numerous clients in commercial disputes raising contract, fraud, and other business tort claims.

Because many of Andrew’s clients are subject to extensive federal regulation and oversight, Andrew has significant experience successfully invoking federal preemption to defeat litigation.

Andrew also advises clients on their arbitration agreements. He has successfully helped numerous clients avoid multi-district class-action litigation by successfully enforcing the institutions’ arbitration agreements.

Clients praise Andrew for his personal attention to their matters, his responsiveness, and his creative strategies. Based on his “big wins in his class action practice,” Law360 named Mr. Soukup a “Class Action Rising Star.

Prior to practicing law, Andrew worked as a journalist.

Photo of Sonya Winner Sonya Winner

A litigator with three decades of experience, Sonya Winner handles high-stakes civil cases for clients in a wide range of industries, including banking, pharmaceuticals and professional sports. She has handled numerous antitrust and consumer disputes, many of them class actions, in state and…

A litigator with three decades of experience, Sonya Winner handles high-stakes civil cases for clients in a wide range of industries, including banking, pharmaceuticals and professional sports. She has handled numerous antitrust and consumer disputes, many of them class actions, in state and federal courts across the country.

Sonya’s cases typically involve difficult technical issues and/or complex legal and regulatory schemes. She is regularly able to resolve cases before the trial phase, often through dispositive motions. But when neither summary judgment nor a favorable settlement is an option, she has the confidence of her clients to take the case all the way through trial and on appeal. Her recent successes have included a cutting-edge decision rejecting a “true lender” challenge to National Bank Act preemption in a class action involving interest rates on student loans, as well as the outright dismissal of a putative antitrust claim against the National Football League and its member clubs asserting an unlawful conspiracy to fix cheerleader compensation.

Sonya has been recognized as a leading trial lawyer by publications like Chambers and the Daily Journal. She is chair of the firm’s Class Action Litigation Practice Group.