Bristol-Myers Squibb (Photo: Rept0n1x via Wikimedia Co)

In a case of first impression, a federal appeals court appeared unlikely to apply the U.S. Supreme Court's jurisdictional holding in Bristol-Myers Squibb Co. v. Superior Court of California to a class action.

In oral arguments on Friday, a panel of the U.S. Court of Appeals for the Seventh Circuit grilled defense attorney Joseph Palmore, who argued to affirm a 2018 decision from an Illinois federal judge striking class allegations in a telemarketing case under Bristol-Myers. The case is the second to ask an appeals court to interpret whether the Supreme Court, in limiting personal jurisdiction in a mass tort case against Bristol-Myers, meant also to restrict class actions in the same manner. The U.S. Court of Appeals for the D.C. Circuit heard similar arguments last week.

Numerous times, Seventh Circuit Chief Judge Diane Wood and Judge Amy Barrett, a 2017 appointee of President Donald Trump, remarked that the defendant, IQVIA Holdings Inc., appeared to be overturning more than 50 years of class action precedent.

"I just find it very difficult to believe that the Supreme Court thought in Bristol-Myers that it was ushering in this dramatic change to the way everyone has understood class actions to work for more than 50 years," Barrett told Palmore, IQVIA's attorney. Palmore is co-chairman of the appellate and Supreme Court practice group at Morrison & Foerster and managing partner of the firm's Washington, D.C., office.

Palmore did not respond to a request for comment, and plaintiffs attorney Dan Edelman, of Chicago's Edelman Combs Latturner & Goodwin, did not return a call for comment.

Bristol-Myers held that most of the 600 plaintiffs in a mass action over the blood thinner Plavix had failed to establish specific jurisdiction, because there wasn't enough of a link between their claims and California, where they brought their lawsuit. To go forward, the court held, would violate the defendant's due process rights under the Fourteenth Amendment.

In a footnote to her dissent, U.S. Supreme Court Justice Sonia Sotomayor noted that the majority's opinion failed to address its impact on nationwide class actions. On that question, judges have divided, and no federal appeals court has ruled on the issue.

In the case before the Seventh Circuit, an Illinois doctor sued IQVIA, a health care information company in Pennsylvania, for allegedly sending two unsolicited faxes to his office in violation of the U.S. Telephone Consumer Protection Act.

On Oct. 26, Judge Virginia Kendall, of the U.S. District Court for the Northern District of Illinois, granted IQVIA's motion to strike the national class, whose members had no relationship to Illinois. Both the Washington Legal Foundation and the U.S. Chamber Litigation Center filed amicus briefs supporting IQVIA, and the American Association for Justice supported the plaintiff, Florence Mussat, in an amicus brief. (The lawyer who filed the AAJ's brief, Matthew Wessler of Washington's Gupta Wessler, argued for the plaintiff in the case before the D.C. Circuit last week).

In oral arguments, the panel several times pointed out that Bristol-Myers was not a class action.

Palmore acknowledged that fact, but he argued the same "logic" in Bristol-Myers applied in this case: A plaintiff could not force a defendant into a court without jurisdiction.

"It's not uncommon for the Supreme Court to issue a decision and the bottom line and reasoning of the decision alerts litigants and lower courts to an issue that hadn't been litigated before," he said. "And I think that's what happened here."

"I don't see that at all," Wood replied. "Your theory, I think, is inconsistent with this whole notion of class actions, and I would think we would be behaving very consistently with Supreme Court jurisdiction to recognize that mass actions, such as Bristol-Meyers faced in California, are simply not the same thing."

In oral arguments, both Barrett and Wood homed in on the fact that unnamed class members were not named plaintiffs in the case, which Kendall had not yet certified. They also questioned how IQVIA could apply the jurisdictional concerns of Bristol-Myers, which involved a state court case in California, to a federal case alleging federal claims.

"Has there ever been a case before Bristol-Myers Squibb where a nationwide class, where this personal jurisdiction argument was made in a federal question case filed in federal court?" Barrett asked Edelman, the plaintiffs attorney. "It's just, all of a sudden, Bristol-Myers Squibb, and now it's like, 'Ah, aha! There's this personal jurisdiction argument that no one has realized!'"

Edelman replied, "If there is an absolute bar on having a class of multistate or national scope in a place where defendant is not headquartered or chartered, it's not there."

The panel also appeared unlikely to adopt IQVIA's additional procedural argument that the Seventh Circuit lacked jurisdiction to hear the appeal because Kendall's order did not grant or deny class certification, as required under the Federal Rule 23 of Civil Procedure. As part of that argument, Palmore noted plaintiffs still could pursue their case on behalf of a class of Illinois residents.

He also argued that plaintiffs attorneys, as in any national class action, could file their case where the defendant was incorporated or headquartered—in this case, either Delaware or Pennsylvania.

"That would be such an extraordinary limitation on nationwide class actions; it's hard for me to see that we can derive intent from Congress to do that," Wood said.