Does Jurisdiction-by-Consent Survive ‘Daimler AG v. Bauman’?

For more than a century, the decision of the Supreme Court of the United States in Pennsylvania Fire Ins. Co. v. Gold Issue Mining Co., 243 U.S. 93 (1917), had been read to permit a state, consistent with due process, to require an out-of-state defendant to consent to general jurisdiction as a condition for registering to do business in the state. Out-of-state companies could, therefore, be sued in that state, even if the events giving rise to the suit occurred outside the forum state and were not otherwise sufficiently connected to the state. This so-called “jurisdiction-by-consent” theory was thrown into doubt in 2014, when the Supreme Court in Daimler AG v. Bauman, 571 U.S. 117 (2014), limited the locations where a corporate defendant could be subject to general jurisdiction to only those jurisdictions where it is “at home,” which, absent exceptional circumstances, means its principal place of business or its place of incorporation. Id. at 130.

Many courts since Daimler have avoided the constitutional question by reading business registration statutes narrowly, as not requiring consent to general jurisdiction. See, e.g., Aybar v. Aybar, 177 N.E.3d 1257 (N.Y. 2021) (holding that registration to do business under the New York Business Corporation Law did not amount to consent to general jurisdiction); State ex rel. Norfolk S. Ry. Co. v. Dolan, 512 S.W.3d 41 (Mo. 2017) (same, interpreting Missouri’s registration statute); Aspen Am. Ins. Co. v. Interstate Warehousing, 90 N.E.3d 440 (Ill. 2017). Some states, including New York, have considered amending their statutes to require consent to general jurisdiction, raising the potential question of whether such statutes comport with due process. See, e.g., A. 7769, 2021-2022 Leg., Reg. Sess. (N.Y. 2021) (vetoed 2021); S. S7253, 2021-2022 Leg., Reg. Sess. (N.Y. 2021) (vetoed 2021); A. 7769, 2019-2020 Leg., Reg. Sess. (N.Y. 2019); S. 7253, 2019-2020 Leg., Reg. Sess. (N.Y. 2019); A. 5918, 2017-2018, Reg. Sess. (N.Y. 2017); S. 5889, 2017-2018 Leg., Reg. Sess. (N.Y. 2017); A. A6714, 2015-2016 Leg., Reg. Sess. (N.Y. 2015); S. 4846, 2015-2016 Leg., Reg. Sess. (N.Y. 2015).