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.