Choice of Law in the American Courts in 2023: Thirty-Seventh Annual Survey

Coyle, John F; Dodge, William S; Simowitz, Aaron D

doi:10.1093/ajcl/avae022

Introduction ...........................................................................................248
I. Choice of Law...................................................................................249
- A. Torts .........................................................................................249
  - 1. Personal Injury and Wrongful Death ...............................249
  - 2. Insurance Bad Faith .........................................................250
  - 3. Public Policy.................................................250
  - 4. Transfer Cases.................................................251
- B. Contracts.................................................252
- C. Other Subjects.................................................254
  - 1. Marriage and Divorce.................................................254
  - 2. Substance and Procedure.................................................255
  - 3. Statutes of Limitations.................................................256
- D.
  Extraterritorial Application of State Statutes.................................................257
II.
Party Autonomy .................................................258
- A. Choice-of-Law Clauses.................................................258
  - 1. Interpretation.................................................258
  - 2. Enforceability.................................................259
    - a. Section .................................................259
    - b. State Statutes.................................................261
- B.
  Forum Selection Clauses.................................................263
  - 1. Choice of Law.................................................263
  - 2. Interpretation.................................................263
  - 3. Enforceability.................................................264
III.
Federal Law.................................................266
- A. Extraterritorial Application of Federal Law.................................................266
- B. International Human Rights.................................................269
- C. Anti-Terrorism Act.................................................270
- D. Foreign Sovereign Immunities Act.................................................272
IV.
Adjudicative Jurisdiction.................................................273
- A. Personal Jurisdiction.................................................273
  - 1. Consent.................................................273
  - 2. Specific Jurisdiction.................................................277
    - a. Purposefulness.................................................277
      - i. Purposeful Availment vs. Purposeful Direction.................................................277
      - ii. Online Activity.................................................279
      - iii. Statutory Claims.................................................281
    - b.
      Relatedness.................................................282
  - 3.
    Personal Jurisdiction and Multiple Parties.................................................285
- B.
  Forum Non Conveniens.................................................287
- C.
  Service of Process.................................................288
V.
Recognition and Enforcement of Judgments.................................................288
- A. Sister-State Judgment Recognition.................................................288
- B. Foreign-Country Judgment Recognition.................................................289
- C. Judgment Enforcement.................................................290

Introduction

This is the Thirty-Seventh Annual Survey of American Choice-of-Law Cases. It was written at the request of the Association of American Law Schools Section on Conflict of Laws¹ and is intended as a service to fellow teachers and to students of conflicts law, both inside and outside the United States. Its purpose remains the same as it has been from the beginning: to inform, rather than to advocate. This Survey covers cases decided by American state and federal appellate courts during 2023.

In 2023, there were no changes in the methodologies that states use for choice of law. The Supreme Court decided two significant extraterritoriality cases and held that the Foreign Sovereign Immunities Act does not apply to criminal proceedings. Perhaps the most important developments occurred in the area of personal jurisdiction, where the Supreme Court held that International Shoe’s framework does not apply to jurisdiction based on consent and upheld the constitutionality of a state statute authorizing general jurisdiction based on a foreign corporation’s registration to do business in the state.

I. Choice of Law

A. Torts

1. Personal Injury and Wrongful Death

In Rey v. General Motors, LLC,² the Eighth Circuit applied Missouri’s choice-of-law rules to affirm the district court’s decision that Mexican law governed the plaintiffs’ claims against a car manufacturer arising from an accident occurring in Mexico. Nicholas Rey and his family drove from their home in Missouri to visit family in Mexico. After staying at least a month, they suffered a single-car rollover accident in which Rey sustained serious spinal injuries. Although the court of appeals noted that GM could have stated its intention to rely on foreign law earlier, it held that the district court did not abuse its discretion in deciding that the issue had been timely raised. Missouri follows the Restatement (Second)’s most significant relationship approach for tort conflicts. For personal injury actions, section 146 establishes a presumption that the law of the place of injury applies, here Mexico. The court of appeals rejected the plaintiffs’ argument that Missouri had a strong interest in seeing Missouri residents compensated because the fundamental question was whether GM was liable at all, rather than how much the plaintiffs would be compensated. The Court also rejected the plaintiffs’ argument that the place of injury was fortuitous, noting that the family had intentionally driven to Mexico, stayed for a month, and intended to remain longer.

In Jensen v. EXC, Inc.,³ the Ninth Circuit applied Arizona’s choice-of-law rules to affirm the district court’s decision that Arizona law, rather than Navajo law, applied to wrongful death and personal injury claims stemming from an accident on a highway running through the Navajo reservation. Jamien Rae Jensen and her one-year-old child were injured, and her husband and unborn child killed, when their vehicle collided with a tour bus on a state highway in the Navajo reservation. After the Ninth Circuit held that tribal courts lacked jurisdiction,⁴ the plaintiffs brought claims under Navajo law in federal district court. The court held that Arizona law applied and dismissed the claims under Navajo law, whereupon the plaintiffs amended their complaint to assert claims under Arizona law. A jury found for the defendants on the Arizona law claims.

Assuming without deciding that state choice-of-law rules could be used to choose between state and tribal law, the Ninth Circuit held that under Arizona’s choice-of-law rules, Arizona tort law applied. Arizona follows the Restatement (Second), section 146 of which—as noted above—establishes a presumption that the law of the place of injury applies in cases of personal injury and wrongful death. Although the accident occurred within the Navajo reservation, the court held that Arizona’s right of way over the highway placed the accident within Arizona’s jurisdiction for purposes of a suit against nonmembers of the tribe. Although none of the parties was domiciled in Arizona, the court held that this did not outweigh the location of the accident.

2. Insurance Bad Faith

In Scott Fetzer Co. v. American Home Assurance Co.,⁵ the Ohio Supreme Court held that the Restatement (Second) of Conflicts’ provisions on tort conflicts applied to claims of bad faith against an insurance company. Scott Fetzer Co., a Delaware corporation headquartered in Ohio, acquired manufacturing facilities in Michigan in 1968, when it merged with Kingston Products Corp., an Indiana company. The facilities in Michigan became Superfund sites, and Fetzer agreed with the U.S. Environmental Protection Agency to perform remedial work. Fetzer later sued Travelers Casualty and Surety Company, a Connecticut company, alleging that it acted in bad faith when handling its claims under policies issued to Kingston. Fetzer sought discovery from Travelers that was not privileged under Ohio law but was privileged under Michigan and Indiana law. Fetzer argued that the Ohio Supreme Court should use Restatement (Second) section 145 on tort conflicts and apply Ohio law because Ohio was the place of injury. Travelers argued that the court should instead use section 193 on insurance contracts and apply either the law of Michigan, where the subject matter of the contracts was located, or the law of Indiana, where the contracts were concluded.

The Ohio Supreme Court agreed with Fetzer that section 145 on tort conflicts applied. In Ohio, breach of the duty of good faith under an insurance contract gives rise to an action in tort,⁶ and it followed that the law governing such an action should be determined under the rule of tort conflicts. The court reasoned that the protection of justified expectations—and thus the principal location of the insured risk—was less relevant with respect to tort claims. The dissent disagreed. While recognizing that bad faith by an insurer sounds in tort, the dissent noted that the claim depended on the existence of a contractual relationship. The dissent also observed that Ohio had no connection to the case except that it was Fetzer’s headquarters and where it chose to bring suit.

3. Public Policy

In United Parcel Service of America, Inc. v. Whitlock,⁷ the Georgia Court of Appeals applied the narrow public policy exception that the Georgia Supreme Court adopted in Auld v. Forbes.⁸ Georgia is one of just nine states adhering to the traditional lex loci delicti rule for tort conflicts. Until recently, Georgia coupled this rule with a broad public policy exception, but Auld significantly narrowed the exception, holding that the law of the place of the injury should be applied unless it “is so radically dissimilar to anything existing in our own system of jurisprudence that it would seriously contravene the policy embodied in Georgia law.”⁹ In Whitlock, the Court of Appeals held that neither South Carolina’s law on punitive damages nor its law on apportionment of liability were so radically dissimilar as to violate Georgia public policy.

Jeff and Jarrett Whitlock were killed when their vehicle (pulled to the shoulder after colliding with another vehicle) was struck by a UPS truck driven by Brian Reynolds. Executors of the two estates sued Reynolds, his employer TeamOne, UPS, and their insurer for wrongful death and punitive damages. Although the Whitlocks and Reynolds were Georgia residents, TeamOne was a Georgia corporation, and UPS was headquartered in Georgia, the accident occurred in South Carolina. Under Georgia’s lex loci delicti rule, this meant that South Carolina law governed unless it was contrary to Georgia public policy.

After noting that punitive damages are substantive rather than procedural, the court observed that “South Carolina law permits the recovery of punitive damages in wrongful death claims when Georgia does not, and South Carolina allows the recovery of a greater amount of punitive damages under certain circumstances.”¹⁰ These differences, however, did not make South Carolina law radically dissimilar. After Auld, the court said, “it is clear that a mere difference in law or the measure of damages does not violate this standard.”¹¹ The same was true with respect to South Carolina’s law on apportionment. Both Georgia and South Carolina have statutes abolishing joint and several liability as the default means of apportioning liability, but South Carolina recognizes exceptions, including for cases involving the use of alcohol, relevant in this case because Reynolds was allegedly intoxicated. “Once again, although these statutes appear to be ‘somewhat different,’” the court reasoned, “the statutes are not ‘radically dissimilar.’”¹²

4. Transfer Cases

Under Van Dusen v. Barrack,¹³ when a case is transferred from one federal district to another under 28 U.S.C. § 1404, the transferee court is generally required to apply the choice-of-law rules of the transferor court. In Enigma Software Group USA, LLC v. Malwarebytes, Inc.,¹⁴ the Ninth Circuit held that this rule governs only when the transferor court had personal jurisdiction over the parties. In this case, a computer security software provider sued one of its competitors in the Southern District of New York for false advertising under the Lanham Act and for various business torts under New York law. On the defendant’s motion, the judge transferred the case to the Northern District of California without ruling on personal jurisdiction. The district court in California held, among other things, that the transferor court lacked personal jurisdiction and therefore that California choice-of-law rules, rather than New York choice-of-law rules, should be applied.

On appeal, the Ninth Circuit agreed that “[t]o apply the state law of the transferor jurisdiction in a § 1404(a) transfer case, the transferor court must have had personal jurisdiction over the defendant.”¹⁵ However, the Court of Appeals concluded that the federal court in New York did have personal jurisdiction over the defendant, which brought the case within Van Dusen’s rule. This meant that the federal court in California was required to apply New York’s choice-of-law rules to determine which state’s law governed the tort claims. Because both parties assumed that New York’s tort law would apply under New York’s choice-of-law rules if the court in New York had personal jurisdiction, the Ninth Circuit held that New York’s tort law applied without conducting a choice-of-law analysis.

B. Contracts

Because so many contracts now contain choice-of-law clauses, there are fewer cases where courts must perform a choice-of-law analysis to resolve contracts conflicts. Many of these cases involve insurance contracts because insurance companies frequently omit choice-of-law clauses from their agreements.¹⁶

In Stillwater Mining Co. v. National Union Fire Insurance Company,¹⁷ the Delaware Supreme Court considered what law governed an insurance policy for directors and officers. The policyholder was headquartered in Montana but incorporated in Delaware. After its directors were sued by the company’s shareholders, the directors filed a claim with their insurer seeking reimbursement of defense costs. When the claim was denied, they sued the insurer in Delaware state court. The question presented was whether the policy was governed by the laws of Montana or Delaware.

The court held that the policy was governed by Delaware law because Delaware had the most significant relationship to the contract and the parties to the contract under the Restatement (Second). The court held that “the state of incorporation is the center of gravity of the typical D&O policy.”¹⁸ It further held that focusing on the state where a corporation is physically headquartered “underrates the significance of [the company’s] status as a Delaware corporation—an entity formed and existing by virtue of the Delaware Constitution and the Delaware General Corporation Law.”¹⁹ Although the court emphasized that each case must be considered on its own merits, the opinion strongly suggests that—in the absence of a choice-of-law clause—any insurance policy covering the officers and directors of a Delaware corporation will always be governed by Delaware law.

In Volonte v. Domo, Inc.,²⁰ the Utah Court of Appeals had to decide whether an underwriter could invoke a forum selection clause selecting the federal courts written into the bylaws of a corporation incorporated in Delaware. Under the contract law of Utah, the underwriter was not a third-party beneficiary covered by the clause. Under the contract law of Delaware, the underwriter was a third-party beneficiary covered by the clause. The court invoked section 6 and section 188 of the Restatement (Second). Citing the need for predictability and uniformity, as well as the needs of the interstate system, the court concluded that the issue was governed by Delaware law:

[G]iven that the Underwriter Defendants are national (not local) actors, that this suit is based on federal (not Utah) statutes, that the conduct in question occurred during the IPO of a corporation that is incorporated in Delaware, that this corporation has an indemnification agreement that would require it to cover the losses for the Underwriter Defendants in a suit like this one, and that this corporation also has a bylaw that expressly requires suits filed under these federal statutes to be filed in federal court, we believe that Delaware, not Utah, has the most significant relationship to the question of whether the Underwriter Defendants can rely on the [forum selection clause].²¹

Because the underwriters were covered by the forum selection clause under Delaware law, the court dismissed the suit against them.

C. Other Subjects

1. Marriage and Divorce

A recurring issue in international family law is whether a litigant was ever legally married to someone else. Two cases—one from Guam, the other from Ohio—considered that issue in some detail.

In In re Estate of Guerrero,²² the Supreme Court of Guam had to determine the legal spouse of Joaquin C. Leon Guerrero. On February 7, 2008, the Superior Court of Guam granted a nunc pro tunc interlocutory divorce decree dissolving the marriage between Joaquin and Nancy Toves. On April 10, 2008, Joaquin and Elizabeth Raposa Leon Guerrero obtained a certificate of marriage from the Republic of the Philippines. On January 5, 2010, the Superior Court of Guam issued a final divorce decree with respect to Joaquin and Nancy’s marriage. On November 25, 2011, Joaquin passed away in the Philippines. After his death, a disagreement arose as to who would administer his estate. To resolve this dispute, the court had to decide whether Joaquin and Elizabeth’s marriage in the Philippines was invalid because it was performed before the Superior Court of Guam issued its final divorce decree.

The court concluded that the marriage was valid. It held that, under the law of Guam, it was possible for a final judgment of divorce to be made retroactive to the date the party legally had the right to have it entered. Although the final divorce decree was not issued until 2010, the court held that it applied retroactively to February 7, 2008. Because Joaquin was legally divorced when he married Elizabeth, and because they had complied with all the relevant formalities to be married under Philippines law, the court held that this marriage should be recognized under the laws of Guam.

In Mullaji v. Mollagee,²³ the Ohio Court of Appeals was likewise asked to adjudicate the validity of a marriage performed abroad. Sajid Mullaji, a citizen of India, married Waheeda Mollagee, a citizen of South Africa, in a Muslim religious ceremony in South Africa in January 2012. In 2013, the couple moved to the United States. In 2014, they had a child. In 2015, Waheeda took the child with her to South Africa and informed Sajid that she and the child would not be returning to the United States.

In response, Sahid took two legal actions. First, he filed a complaint for legal separation requesting sole custody in Ohio state court.²⁴ Second, he filed an application for the return of the child from South Africa under the Hague Convention on the Civil Aspects of International Child Abduction in federal court.²⁵ In the U.S. state court action, Waheeda argued that the complaint should be dismissed because the couple’s religious marriage was never solemnized in a civil ceremony. She argued that it was not a marriage under South African law and thus could not be recognized by an Ohio court. After several years of litigation, the South African court hearing the Hague Convention case held that marriages solemnized according to Muslim ceremonial rites were not valid in South Africa. In light of this decision, Waheeda asked the Ohio court adjudicating the divorce action to dismiss the case for lack of subject-matter jurisdiction. If there was no marriage, she argued, the court lacked jurisdiction to grant a divorce.

Although the trial court denied the motion, the Court of Appeals reversed. It reasoned that “once the South African Court determined the validity of the parties’ Muslim-rite marriage . . . the trial court was obligated to accept that determination under the doctrine of lex loci contractus.”²⁶ A dissenting opinion would have affirmed the lower court decision based on res judicata. The dissenting judge argued that Waheeda was barred from denying the validity of the South African marriage because she failed to challenge the trial court’s factual finding that a marriage existed at an earlier stage of the proceedings.

2. Substance and Procedure

In the United States, procedural matters are always governed by the law of the forum. It is no easy task, however, to tell whether an issue should be classified as substantive or procedural. In Gershon v. Back,²⁷ the Connecticut Supreme Court was presented with an issue of first impression relating to the substantive/procedural divide. It was asked to decide whether New York’s plenary action rule—which requires a party seeking to modify or vacate a separation agreement that survived a final judgment of divorce to file a plenary action on the contract rather than reopening the divorce proceedings—is substantive or procedural for choice-of-law purposes.

After considering the factors set forth in section 122 of the Restatement (Second), the court held that the plenary action rule was “so interwoven with the plaintiff’s cause of action as to be deemed substantive.”²⁸ In support of this conclusion, the court cited (i) the language in the separation agreement, (ii) the fact that applying the rule would affect the ultimate substantive outcome of this case, and (iii) the fact that applying the rule would not impose an undue burden on the Connecticut courts. Since the matter was substantive, it was appropriate to apply New York law because that jurisdiction had the closest connection to the case. Accordingly, the court affirmed the lower court’s decision denying the plaintiff’s motion to open and vacate the divorce judgment.

3. Statutes of Limitations

A pair of cases involving non-payment of student loans provide useful insights into how U.S. courts deal with conflict of laws relating to statutes of limitations.

In Cornett v. Student Loan Solutions, LLC,²⁹ a student loan provider sued a student who had defaulted on her debt. After the default occurred in May 2014, the full balance of the loan was due in September 2014. The lender sued the borrower for breach of contract in Kentucky state court on November 8, 2019. The borrower raised the statute of limitations as an affirmative defense. First, she argued that the relevant statute of limitations was four years because the loan agreement contained a California choice-of-law clause and, under California law, an action for breach of a written contract had to be brought within four years. Second, she argued that Kentucky’s borrowing statute required the court to apply California’s statute of limitations because the cause of action accrued in California.

The Kentucky Court of Appeals rejected both arguments. It first held that the choice-of-law clause only selected the substantive law of California. Because statutes of limitations are deemed procedural rather than substantive in Kentucky, the court held that the clause did not operate to select California’s statute of limitations. The court also held that the borrowing statute was inapplicable because the borrower was living in Kentucky when she breached the contract and failed to make timely payments on the loan. Because the cause of action was deemed to have accrued in Kentucky, the court applied Kentucky’s fifteen-year statute of limitations for written contracts.

In Accesslex Institute v. Philpot,³⁰ the Utah Court of Appeals faced strikingly similar facts. The borrower was a Utah resident who defaulted on his student loan debt on August 28, 2012. The lender sued him for breach of contract in Utah state court on August 27, 2018. The borrower raised the statute of limitations as an affirmative defense and argued that Utah’s borrowing statute required the court to apply Pennsylvania’s four-year statute of limitations because the lender was incorporated there. The court rejected this argument. It held that the borrower, who was proceeding pro se, failed to carry his burden of proving that the cause of action arose somewhere other than Utah. In support of this conclusion, the court observed that the borrower “did not identify or refer to any testimony or exhibit that established where the present cause of action arose or where the contract is to be performed.”³¹

D. Extraterritorial Application of State Statutes

In State v. Talyansky,³² the Wisconsin Court of Appeals held that Wisconsin’s Deceptive Trade Practices Act (DTPA) applies to misrepresentations by Wisconsin businesses to out-of-state consumers. Midwest Auto Recycling, a business located in Wisconsin, sold recycled auto parts to consumers throughout the United States over the internet. Based on hundreds of complaints, the State of Wisconsin sued Midwest for violating the DTPA. After the trial court excluded evidence involving out-of-state consumers and the jury found for the defendants, the State appealed.

Wisconsin has a presumption against extraterritoriality,³³ but the appellate court did not mention it. Instead, the court looked to the plain language of statute, which provides in relevant part:

No person, firm, corporation or association, or agent or employee thereof . . . shall make, publish, disseminate, circulate, or place before the public, or cause, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public, in this state . . . an advertisement, announcement, statement or representation of any kind to the public . . . which advertisement, announcement, statement or representation contains any assertion, representation or statement of fact which is untrue, deceptive or misleading.³⁴

The court noted that the verbs in this provision “focus on the advertiser’s conduct or actions, not the recipient or the consumer. After a comma, the statute provides that these actions may not take place ‘in this state.’ The statute does not proscribe where the recipient or consumer must be or reside.”³⁵ The defendants argued that the phrase “in this state” required that the offending statements be placed before the public in Wisconsin, but the court disagreed. “There is a comma that separates the phrase ‘before the public’ and ‘in this state,’” the court noted, “[i]f ‘in this state’ modified ‘before the public,’ then there would be no need for a comma.”³⁶ The court dismissed as unpersuasive a federal district court decision limiting the DTPA to Wisconsin consumers,³⁷ chiding the federal court for ignoring the plain language of the statute.

II. Party Autonomy

The modern trend in conflicts is to recognize the autonomy of the parties to select the law to govern their affairs and the courts in which to resolve their disputes—up to a point. There were hundreds of cases decided by U.S. courts in 2023 that dealt with choice-of-law or forum selection clauses. This Part surveys some of the more interesting decisions.

A. Choice-of-Law Clauses

1. Interpretation

A recurring issue in modern litigation is whether a choice-of-law clause is drafted broadly enough to encompass tort and statutory claims in addition to contract claims.³⁸ Although it is a simple matter to give these clauses an expansive scope, a number of sophisticated drafters nevertheless fail to do so.³⁹

In Great Lakes Insurance SE v. Andersson,⁴⁰ an insurance company based in the United Kingdom found itself embroiled in litigation with a policyholder based in the United States. The policyholder alleged that the insurer had engaged in unfair claim settlement practices in violation of two Massachusetts statutes. The insurer argued that these claims could not be asserted because the insurance contract contained a choice-of-law clause selecting federal admiralty law or, alternatively, the law of the state of New York. The First Circuit held that the choice-of-law clause was ambiguous in scope and construed it against the drafter—the insurer—to hold that it did not bar the policyholder’s statutory claims. Had the insurer drafted the clause more broadly, it likely would have prevailed on this issue.⁴¹

The First Circuit confronted a case with similar facts in Kleiner v. Cengage Learning Holdings II Inc.⁴² A professor sued a publishing company under a Massachusetts statute barring unfair and deceptive trade practices. The company argued that the case should be dismissed because its contract with the professor contained a New York choice-of-law clause. The court held, however, that the clause was drafted too narrowly to encompass non-contractual claims and denied the motion to dismiss. Again, it is likely that the court would have decided in favor of the company if its choice-of-law clause had been drafted broadly.

2. Enforceability

a. Section 187

As a matter of common law, most U.S. courts apply the test set forth in section 187 of the Restatement (Second) to determine whether a choice-of-law clause is enforceable. Section 187 provides:

(1) The law of the state chosen by the parties to govern their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue.
(2) The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either
- (a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice, or
- (b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of s 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.

Appellate courts across the United States had occasion to apply different parts of this rule in 2023 to determine the enforceability of choice-of-law clauses.

In Umpqua Bank v. Gunzel,⁴³ the Washington Court of Appeals applied section 187(1). The plaintiff was entitled to attorney’s fees under the laws of Oregon but not under the laws of Washington. The contract contained a choice-of-law clause selecting Oregon law. The question was whether this clause was enforceable with respect to attorney’s fees. The court should have reasoned that, since the parties could have written an explicit provision in their agreement addressing the issue of attorney’s fees—an action apparently permitted under the laws of either state—the choice-of-law clause should be enforced under section 187(1). Instead, it looked to a different provision in the contract—one that addressed the ability of the borrower to transfer property without the consent of the lender—and concluded that the choice-of-law clause was enforceable because the parties could have been more explicit about when the transfer of property was permitted. This analysis is curious because there was no conflict between the laws of Washington and Oregon on the property-transfer issue. The court should have focused instead on whether the issue of attorney’s fees could have been resolved by an explicit provision in the agreement because that was where the conflict was.

Section 187(2)(a) stipulates that when a particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, a choice-of-law clause should not be enforced if there is no reasonable basis for selecting the chosen jurisdiction and that jurisdiction has no substantial relationship to the parties. In Muhammad v. Deutsche Bank National Trust Co.,⁴⁴ the Sixth Circuit had to decide whether the fact that the parent company of one of the contracting parties was founded in Indiana—and operated facilities there—was sufficient to create a substantial relationship with Indiana. The court held that it was not. It reasoned that “this distant relation to Indiana provides a connection to this transaction, it does not create a material connection.”⁴⁵ In the absence of a substantial relationship to Indiana, the court held that the Indiana choice-of-law clause was not enforceable.

In Barber v. Bradford Aquatic Group, LLC,⁴⁶ the Montana Supreme Court applied section 187(2)(b) to determine whether a North Carolina choice-of-law clause into an employment agreement was enforceable. It first decided that the party resisting enforcement of the clause had failed to show that the agreement would have been governed by Montana law in the absence of the clause. It then concluded that the resisting party had not shown Montana’s interest in applying its law to the case was materially greater than North Carolina’s. In light of these findings, the court concluded that there was no need to analyze whether applying North Carolina law would violate a fundamental Montana policy.

The Washington Court of Appeals applied section 187(2)(b) in Raab v. Nu Skin Enterprises, Inc.⁴⁷ The question was whether to enforce a Utah choice-of-law clause over the plaintiff’s objections that enforcement would be unconscionable. After determining that Washington’s law of unconscionability was different from Utah’s, the court had to decide whether the choice-of-law clause compelled it to apply the latter. The court held that it did not. The court first concluded that Washington law would apply if the contract lacked a choice-of-law clause. It then concluded that applying Utah law to this issue would contravene Washington’s fundamental policy of “protecting plaintiffs against agreements that are either procedurally or substantively unconscionable, including by being one-sided and harsh.”⁴⁸ Finally, the court concluded that Washington had a materially greater interest in applying its law because the case was brought by a consumer and the “state where the alleged harm occurs has the stronger interest in applying its laws than does a state from which the deception emanated.”⁴⁹

b. State Statutes

A choice-of-law clause may also be unenforceable because a state legislature has passed a law declaring it invalid. The California legislature has, for example, enacted several laws to protect the rights of employees. It has also passed an anti-waiver statute, which states that an “employer shall not require an employee who primarily resides and works in California, as a condition of employment, to agree to a provision that would . . . [d]eprive the employee of the substantive protection of California law with respect to a controversy arising in California.”⁵⁰ This anti-waiver statute directs California courts to ignore any choice-of-law clause selecting the laws of a state that provides less protection to workers than California. When a lawsuit is brought in California, this anti-waiver statute is reliably enforced. What happens, however, when the lawsuit is brought outside of California?

In C.H. Robinson Worldwide, Inc. v. Traffic Tech, Inc.,⁵¹ the plaintiff, C.H. Robinson, was a Delaware corporation with its principal place of business in Minnesota. It brought suit in federal court in Minnesota against four of its former employees—all of whom resided in California—after they went to work for a competitor. The employees moved to dismiss on the ground that the clauses were not enforceable under California law because of the California anti-waiver statute. The company argued that California law was displaced in each instance by a choice-of-law clause selecting the laws of Minnesota. After the district court ruled in favor of the employees, the company appealed to the Eighth Circuit.

The Eighth Circuit began and ended its analysis with the idiosyncratic test that the Minnesota courts use to determine whether a choice-of-law clause is enforceable. This test provides that “a contractual choice-of-law provision will govern so long as the parties acted in good faith and without an intent to evade the law.”⁵² Applying this test, the court concluded that the choice-of-law clause selecting the laws of Minnesota was enforceable because the employees did not raise any arguments about good faith or intent to evade the law. The Eighth Circuit did not consider whether applying Minnesota law to govern the employment contracts of employees who lived and worked in California would be contrary to a “fundamental policy” of a state (California) that had a “materially greater interest” than the chosen state (Minnesota) in the determination of the issues presented, as Restatement (Second) section 187 would have required. Had it done so, it seems likely that it would have held—like the district court—that California law governed and granted the motion to dismiss.

The Georgia Supreme Court also considered the interplay between a choice-of-law clause and state policy in Motorsports of Conyers, LLC v. Burbach.⁵³ The plaintiff, a motorcycle dealership, sued a former employee who left to work for a competitor for breach of a non-compete in his employment agreement. That employment agreement contained a choice-of-law clause selecting the laws of Florida. The trial court issued an injunction barring the employee from working for the new employer. The employee appealed that decision to the Georgia Supreme Court.

In its decision, the Georgia Supreme Court explained that choice-of-law clauses are ordinarily enforceable under Georgia law but that they would not be given effect when contrary to Georgia public policy. It observed that the Georgia legislature had enacted a statute stating that “unreasonable restrictive covenants are general restraints of trade that contravene public policy” and that the legislature had established a “comprehensive scheme for determining whether restrictive covenants are reasonable and thus enforceable.”⁵⁴ The court held that a Georgia court should engage in the following analysis before enforcing a non-Georgia choice-of-law clause in any case involving a covenant not to compete:

[A court] must first . . . [analyze] whether the restrictions at issue are “reasonable in time, geographic area, and scope.” If the court applies the [statute] and concludes that the restrictive covenant is reasonable, the court can honor the choice-of-law provision and apply the foreign law to determine the enforceability of the restrictive covenant. If, on the other hand, applying the [statute] shows that the restrictive covenant is unreasonable, the restrictive covenant is against public policy and the court may not apply foreign law to enforce it. Instead, the court must apply Georgia law, which would not allow for the enforcement of the unreasonable restrictive covenant as written.⁵⁵

After laying out this legal framework, the Georgia Supreme Court vacated the judgment below and remanded the case to the trial court.

B. Forum Selection Clauses

1. Choice of Law

There is an ongoing scholarly debate over what law a court should apply to determine the enforceability of a forum selection clause. Some scholars argue that the court should apply the law of the forum. Other scholars argue that the court should apply the law of the jurisdiction named in the choice-of-law clause. In Schmidt v. Trinut Farm Management, Inc.,⁵⁶ the California Court of Appeal endorsed the latter position for three reasons. First, it observed that this position was more consistent with the California Supreme Court’s seminal decision in Smith, Valentino & Smith, Inc. v. Superior Court.⁵⁷ Second, the court noted that the “most thorough article on the subject . . . came out solidly in favor of applying the chosen law” because of a “need for certainty.”⁵⁸ Third, the court stated that it had not “identified any fundamental policy of California that would be adversely impacted by the application of Illinois law to the question of whether the forum selection provision should be enforced.”⁵⁹ In light of these considerations, and after confirming that the Illinois choice of law was valid under section 187, the court remanded for the trial court to evaluate whether the Illinois forum selection clause was enforceable under Illinois law.

2. Interpretation

Interpretation issues frequently arise with respect to forum selection clauses.⁶⁰ In Culinary Ventures, Ltd. v. Microsoft Corporation,⁶¹ an Israeli company entered an online services agreement with an Irish subsidiary of Microsoft that contained the following language: “This agreement is governed by the laws of Ireland. If we bring an action to enforce this agreement, we will bring it in the jurisdiction where you have your headquarters. If you bring an action to enforce this agreement, you will bring it in Ireland.”⁶² After the subsidiary deleted some of the company’s data, the company sued Microsoft in Washington state court. It alleged that Microsoft had violated the Washington Consumer Protection Act (WCPA). Microsoft moved to dismiss based on the forum selection clause. The trial court granted this motion, and the company appealed.

The Washington Court of Appeals’ decision raises two interesting issues. The first is why Microsoft was entitled to take advantage of the Ireland forum selection clause even though it was not a party to the online services agreement. The court nowhere addresses this issue in its opinion. The second issue is whether the forum selection clause in the agreement was broad enough to encompass the plaintiff’s statutory claims under the WCPA. As drafted, the clause arguably does not cover this claim because it merely applies to “an action to enforce this agreement.” Nevertheless, the Washington Court of Appeals held that the clause was broad enough to cover the plaintiff’s statutory claim under the WCPA and dismissed the suit. It reasoned that because resolution of this non-contractual claim required the court to interpret the contract, and because this claim grew out of the parties’ preexisting contractual relationship, it was covered by the forum selection clause. The court made no mention of the doctrine of interpreting ambiguous contract terms against the drafter (contra proferentem) in its analysis. Had it applied this doctrine, it may well have reached a different conclusion.

3. Enforceability

In G Companies Management, LLC v. LREP Arizona, LLC,⁶³ the California Court of Appeal had to decide whether to enforce an Arizona forum selection clause in a case arising out of a loan agreement. A California company borrowed $4 million from a Texas company doing business in Arizona. The interest rate on the loan was 36% annually. After the borrower defaulted on the loan and was sued by a guarantor in California state court, it brought crossclaims against the lender. The lender moved to dismiss based on the exclusive Arizona forum selection clause in the loan agreement. The borrower argued that the clause was unenforceable because enforcement “would deny a California resident the protection of California’s fundamental public policy regarding usury.”⁶⁴

The court sided with the borrower. It observed that California’s usury laws represent a fundamental public policy of the state and are not waivable. It further observed that, if the Arizona forum selection clause were enforced, an Arizona court would likely give effect to the Arizona choice-of-law clause in the lending agreement and apply the (less borrower friendly) usury laws of Arizona. This outcome, in the court’s view, was not permissible because it would result in the waiver of a fundamental right conferred by California law. Accordingly, the court refused to enforce the forum selection clause. In so holding, it added usury protections to the list of rights deemed so fundamental by California courts—a list that includes rights conferred by the state’s securities laws, wage and hour laws, and consumer protection laws, as well as the right to a jury trial—that non-enforcement of forum selection clauses is warranted when there is a strong likelihood that the chosen court will not apply California law.⁶⁵

The courts in Texas have taken a very different approach to this issue. In Eads v. Spheric Assurance Co.,⁶⁶ the Fifth Circuit affirmed a decision enforcing a forum selection clause choosing the courts of the British Virgin Islands (BVI). The owner of a yacht destroyed by fire in 2012 sued the insurer, a company incorporated in the BVI, in federal court in Texas. The insurer sought to dismiss based on the BVI forum selection clause in the contract, which also contained a BVI choice-of-law clause. The owner opposed the motion. He argued that BVI law would allow the insurer to evade its coverage obligations based on immaterial warranty violations in contravention of Texas public policy. Because enforcing the BVI forum selection clause would lead inevitably to the application of BVI law, the owner argued, and because applying BVI law would be contrary to Texas public policy, the forum selection clause should not be enforced.

The Fifth Circuit rejected this argument. It cited prior circuit precedent to conclude that, even if Texas had a strong policy of regulating insurance, this did not provide a basis for declining to enforce the forum selection clause.⁶⁷ Significantly, the court stood by this conclusion even though the owner presented evidence that the lawsuit would face a “grim legal future” should he be required to litigate in the BVI.⁶⁸ The court reasoned that, even when enforcing a forum selection clause will “relegate[] the plaintiff to a dead-end forum,” the clause should still be given effect.⁶⁹ The contrast between the approach taken by the courts in California—which have consistently refused to enforce forum selection clauses when the laws of the chosen jurisdiction are less protective, as discussed above—is striking.⁷⁰

In addition to concerns about public policy, U.S. courts sometimes cite lack of reasonableness as a basis for declining to enforce forum selection clauses.⁷¹ In several cases, the courts have held that enforcing a clause would be unreasonable under the circumstances because it would generate duplicative litigation.⁷² This is precisely what happened in Perdue Farms, Inc. v. L&B Transportation, LLC.⁷³ The plaintiff filed suit in Indiana state court against multiple parties, only some of whom were subject to the forum selection clause. If the clause were enforced, the result would be multiple lawsuits involving the same facts and evidence in multiple locations. The Indiana Court of Appeals concluded that it would be unreasonable to enforce the clause on these facts and declined to do so.

III. Federal Law

A. Extraterritorial Application of Federal Law

The U.S. Supreme Court decided two important extraterritoriality cases in 2023. In Yegiazaryan v. Smagin,⁷⁴ the Court interpreted the “domestic injury” requirement for civil RICO claims, imposed by the Supreme Court’s 2016 decision in RJR Nabisco, Inc. v. European Community.⁷⁵ Both parties in Yegiazaryan were Russian nationals. In 2014, an arbitration tribunal in London awarded the plaintiff Smagin $84 million in damages arising from a Moscow real estate deal. Smagin had the award confirmed by a court in California, where the defendant Yegiazaryan lived. Smagin alleged that Yegiazaryan engaged in a pattern of racketeering activity to conceal his assets in order to avoid paying the California judgment confirming the award.

Writing for a six-justice majority, Justice Sotomayor rejected a bright-line test, suggested by the defendant, that would locate a plaintiff’s injury at the place of the plaintiff’s residence. Instead, she agreed with the Ninth Circuit that determining whether the plaintiff suffered a domestic injury requires a “context-specific inquiry” that considers “the nature of the alleged injury, the racketeering activity that directly caused it, and the injurious aims and effects of that activity.”⁷⁶ In this case, “Smagin’s interests in his California judgment against Yegiazaryan, a California resident, were directly injured by racketeering activity either taken in California or directed from California, with the aim and effect of subverting Smagin’s rights to execute on that judgment in California.”⁷⁷ That was enough to establish a domestic injury. Justice Alito dissented, joined by Justice Thomas and in part by Justice Gorsuch. He complained that the Court’s contextual approach provided too little guidance to lower courts and threatened international comity by giving “foreign plaintiffs access to U.S. remedial schemes that are far more generous than those available in their home nations.”⁷⁸ The practical impact of the case is to authorize the use of civil RICO to help enforce foreign arbitral awards and judgments, so long as the foreign award or judgment has been confirmed or recognized by a U.S. court and the judgment debtor engages in racketeering activity (like wire fraud) to avoid paying.⁷⁹

In Abitron Austria GmbH v. Hetronic International, Inc.,⁸⁰ the Supreme Court explained how to apply the presumption against extraterritoriality. The key question was whether, under the second step of the two-step framework articulated in RJR Nabisco, the application of a federal statute is domestic if only the focus of the provision is found in the United States or if conduct relevant to the provision’s focus must also occur in the United States. Reversing their roles in Yegiazaryan, Justice Alito wrote for a five-justice majority that “to prove that a claim involves a domestic application of a statute, plaintiffs must establish that the conduct relevant to the statute’s focus occurred in the United States.”⁸¹ By contrast, Justice Sotomayor, joined by Chief Justice Roberts and Justices Barrett and Kagan, would have held that “[a]n application is domestic when the object of the statute’s focus is found in, or occurs in, the United States.”⁸²

At issue in Abitron were two provisions of the Lanham Act (the federal trademark statute) that prohibit the use in commerce of a federal trademark when such use “is likely to cause confusion, or to cause mistake, or to deceive.”⁸³ The defendants (collectively, Abitron) placed the plaintiff Hetronic’s trademark on products that they made in Europe, some of which were ultimately sold into the United States. Whereas Justice Sotomayor thought the Lanham Act should apply to foreign conduct that was likely to cause confusion in the United States, the majority held that the Lanham Act applies only if the infringing uses of the trademarks occurred in the United States.

Abitron reestablishes the old conduct-based version of the presumption against extraterritoriality that the Supreme Court seemed to abandon in Morrison v. National Australia Bank, Ltd.⁸⁴ Under Abitron’s approach, federal statutes apply only to conduct in the United States unless the provision at issue clearly indicates that it applies extraterritorially. This approach challenges the lower courts’ interpretation of Morrison’s test for the application of Securities Exchange Act section 10(b), prohibiting securities fraud, which those courts have understood to require the transaction to occur in the United States but not the fraudulent conduct itself.⁸⁵ It might even call into question the Supreme Court’s longstanding position that U.S. antitrust law applies to foreign conduct that causes substantial anticompetitive effects in the United States.⁸⁶ Given the 5–4 division of the Court in Abitron and the somewhat different attitude expressed in Yegiazaryan, it is hard to forecast where the Court will go next.

One question the Supreme Court may soon have to address is how its 1922 decision in United States v. Bowman⁸⁷ fits into the current extraterritoriality framework. Bowman said that the presumption against extraterritoriality “should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for the government’s jurisdiction, but are enacted because of the right of the government to defend itself against obstruction, or fraud wherever perpetrated.”⁸⁸Bowman held that a federal statute making it a crime to defraud corporations owned by the United States applied to conduct abroad.

In United States v. Rolle,⁸⁹ decided before Abitron, the Eleventh Circuit reasoned that Bowman provided an alternative approach to extraterritoriality, one that the Supreme Court has never overruled. Applying Bowman rather than RJR Nabisco’s two-step framework, the Court of Appeals held that federal statutes criminalizing immigrant smuggling apply extraterritorially. In United States v. Alahmedalabdaloklah,⁹⁰ decided after Abitron, the Ninth Circuit instead tried to incorporate Bowman into the two-step framework. At step one, if Congress has clearly indicated that a federal statutory provision applies extraterritorially, a court must apply the provision as Congress has indicated.⁹¹ The Supreme Court has said that an express statement of extraterritoriality is not required and that “context can be consulted as well.”⁹² The Ninth Circuit reasoned that Bowman could be considered “[p]art of the context”⁹³ and so read a federal statute criminalizing the use of explosives to destroy federal property as applying to conduct abroad despite the absence of any “explicit statement of extraterritorial reach.”⁹⁴

Both attempts to reconcile Bowman with the Supreme Court’s current framework seem questionable, considering the Court’s statements that the presumption applies “in all cases”⁹⁵ and that it is a “rare statute that clearly evidences extraterritorial effect despite lacking an express statement of extraterritoriality.”⁹⁶ On the other hand, the Court may not wish to limit the application of federal criminal statutes against those who try to smuggle immigrants into the United States or blow up federal property abroad. Criminal cases may soon test the Supreme Court’s commitment to a conduct-based approach to extraterritoriality.

B. International Human Rights

In Doe I v. Cisco Systems, Inc.,⁹⁷ the Ninth Circuit held that Chinese practitioners of Falun Gong could bring claims of aiding and abetting human rights violations under the Alien Tort Statute⁹⁸ (ATS) against Cisco Systems, which designed and built a surveillance system for the People’s Republic of China. The court first held that aiding and abetting was sufficiently well-established under international law to meet the test for actionable ATS claims under Sosa v. Alvarez-Machain.⁹⁹ With respect to mens rea, the court further held that under customary international law a defendant need not have acted with the purpose of facilitating human rights violations, as the Second and Fourth Circuits have concluded.¹⁰⁰ Agreeing with the Eleventh Circuit¹⁰¹ instead, the court held that a defendant need only have acted with knowledge that it was facilitating such violations.

Turning to the question of extraterritoriality, the Ninth Circuit held that the claims involved a domestic application of the ATS. Since recognizing and implied cause of action under the ATS in Sosa, the Supreme Court has repeatedly narrowed that cause of action, holding in Jesner v. Arab Bank PLC¹⁰² that the ATS cause of action does not apply to foreign corporations and in Nestlé U.S.A., Inc. v. Doe¹⁰³ that claims against U.S. corporations must be based on conduct in the United States that goes beyond general corporate decision making. Cisco, however, is a U.S. corporation. With respect to domestic conduct, the plaintiffs had alleged that “Cisco designed, developed, and optimized important aspects of the Golden Shield surveillance system in California; that Cisco manufactured hardware for the Golden Shield in California; [and] that Cisco employees in California provided ongoing maintenance and support.”¹⁰⁴

Finally, the Ninth Circuit held, as a matter of first impression, that the Torture Victim Protection Act (TVPA) reaches claims of aiding and abetting torture. One of the plaintiffs is a U.S. citizen, who could not bring a claim under the ATS but did have a cause of action under the TVPA against “[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation . . . subjects an individual to torture.”¹⁰⁵ The court found that the word “subjects” is broad enough to cover aiding and abetting claims, and that this interpretation was consistent with the Supreme Court’s interpretation of the TVPA and the act’s legislative history. Although the TVPA does not create a cause of action against corporations,¹⁰⁶ the U.S. plaintiff could sue Cisco’s CEO and the vice-president of Cisco China for aiding and abetting.

C. Anti-Terrorism Act

In Twitter, Inc. v. Taamneh,¹⁰⁷ the Supreme Court unanimously interpreted the Antiterrorism Act (ATA)’s provision on aiding and abetting¹⁰⁸ to require conscious and culpable participation in an act of international terrorism. The plaintiffs were injured in a terrorist attack in Istanbul, Turkey, carried out on behalf of ISIS. The plaintiffs alleged that ISIS used Twitter and other social-media platforms to recruit terrorists and raise funds, that the defendants knew ISIS was using their platforms, and that the defendants failed to stop it. The Court emphasized “the need to cabin aiding-and-abetting liability to cases of truly culpable conduct.”¹⁰⁹ Otherwise, “ordinary merchants could become liable for any misuse of their goods and services, no matter how attenuated their relationship with the wrongdoer.”¹¹⁰ The Court added that, to be liable, a defendant must aid and abet the terrorist act, not just the terrorist organization, though it cautioned that this “requirement does not always demand a strict nexus between the alleged assistance and the terrorist act.”¹¹¹

In this case, the plaintiffs failed to allege that the defendants culpably associated themselves with ISIS’s terrorist attack in Istanbul. Merely creating social media platforms was not culpable. “To be sure, it might be that bad actors like ISIS are able to use platforms like the defendants’ for illegal—and sometimes terrible—ends,” the Court observed. “But the same could be said of cell phones, email, or the internet generally.”¹¹² Recommendations produced by the defendants’ algorithms did not amount to substantial assistance. “All the content on their platforms is filtered through these algorithms,” the Court noted. “The fact that these algorithms matched some ISIS content with some users thus does not convert the defendants’ passive assistance into active abetting.”¹¹³

The Supreme Court remanded a separate case, Gonzalez v. Google LLC,¹¹⁴ for reconsideration, suggesting that its decision in Twitter largely disposed of that case too. The Court thus avoided answering the question presented in Gonzalez—whether section 230 of the Communications Decency Act¹¹⁵ immunizes interactive computer services that make targeted recommendations.

In Ofisi v. BNP Paribas, S.A.,¹¹⁶ the D.C. Circuit dismissed aiding and abetting claims brought by victims and families of the 1998 embassy bombings in Kenya and Tanzania against the French bank BNP Paribas (BNPP). The plaintiffs alleged that BNPP provided banking services in Sudan in violation of U.S. sanctions, including services to a Sudanese bank serving al-Qaeda, which carried out the embassy bombings. The D.C. Circuit upheld dismissal of the plaintiffs’ aiding and abetting claims under the ATA for lack of proximate causation, relying on an earlier circuit decision.¹¹⁷ The court also dismissed common law aiding and abetting claims. Quoting the Supreme Court’s decision in Twitter, the court wrote, “aiding and abetting liability requires a showing of ‘a conscious, voluntary, and culpable participation in another’s wrongdoing.’”¹¹⁸ “Appellants simply do not plausibly allege that BNPP was generally aware of any role it allegedly played in the U.S. embassy bombings,” the court continued, “or that it consciously participated in any act to make the bombings succeed.”¹¹⁹Ofisi shows that Twitter is likely to affect aiding and abetting claims beyond those brought under the ATA.

D. Foreign Sovereign Immunities Act

In Turkiye Halk Bankasi A.S. v. United States,¹²⁰ the U.S. Supreme Court held that the Foreign Sovereign Immunities Act (FSIA) does not provide immunity from criminal prosecution. The United States had indicted Halkbank, a bank owned by the Republic of Turkey, for conspiring to evade U.S. sanctions on Iran. Halkbank claimed that it was immune from prosecution as an instrumentality of a foreign state. Although the FSIA’s grant of immunity does not distinguish between civil and criminal proceedings, providing broadly that a “foreign state shall be immune from the jurisdiction of the courts of the United States and of the States” unless an exception applies,¹²¹ the majority reasoned that this provision must be read in context. The majority noted that the FSIA’s grant of subject matter jurisdiction over suits against foreign states was expressly limited to “civil action[s]”¹²² and that other FSIA provisions—such as those on venue, removal, and service of process—were calibrated for civil proceedings. Having held that the FSIA did not apply, the Court remanded the case to the Second Circuit to consider Halkbank’s claim of immunity under federal common law. Justice Gorsuch (joined by Justice Alito) would have held that the FSIA applies to criminal proceedings but that the indictment fell within the FSIA’s exception for commercial activities.¹²³

In several Holocaust expropriation cases, the D.C. Circuit addressed issues left undecided by the Supreme Court’s 2021 decision in Federal Republic of Germany v. Philipp.¹²⁴Philipp held that the FSIA’s expropriation exception¹²⁵ does not apply to a country’s taking of property from its own nationals, but the Court did not address the plaintiffs’ argument that their ancestors had ceased to be German nationals by the time of the expropriation. On remand, the D.C. Circuit held that the plaintiffs failed to preserve this statelessness argument in Philipp.¹²⁶ In Simon v. Republic of Hungary,¹²⁷ by contrast, the court found that the plaintiffs had preserved their statelessness argument. Nevertheless, the court held that the plaintiffs had not established that the taking of a stateless person’s property violates customary international law.¹²⁸ The court allowed claims by plaintiffs who plausibly alleged that they were nationals of Czechoslovakia to go forward.

In Bartlett v. Baasiri,¹²⁹ U.S. victims of terrorism sued a private Lebanese bank for aiding and abetting international terrorism. After the U.S. Treasury Department labeled the defendant a “Specially Designated Global Terrorist” and froze its assets, the bank went into liquidation and was taken over by Lebanon’s central bank. The defendant then moved to dismiss on the ground that it was now immune from suit as an instrumentality of a foreign state. The Second Circuit agreed, holding that immunity under FSIA may attach if a defendant becomes an instrumentality of a foreign state after suit is filed. That holding is in tension with the Supreme Court’s ruling in Dole Food Co. v. Patrickson “that instrumentality status is determined at the time of the filing of the complaint.”¹³⁰ The Second Circuit distinguished Dole Food on the ground that the defendant in that case lost its instrumentality status before the complaint was filed, whereas the defendant in this case gained its instrumentality statutes after the suit was brought. The court also relied on the FSIA’s use of the present tense to define instrumentality status and its purpose to protect foreign sovereigns from the burden of suit. But Dole Food also relied on the FSIA’s use of the present tense to support its rule, as well as citing the longstanding principle that subject-matter jurisdiction is determined at the time of filing. The Supreme Court will have a chance to review Bartlett if it wishes, for the plaintiffs have filed a petition for certiorari.

IV. Adjudicative Jurisdiction

A. Personal Jurisdiction

1. Consent

In Mallory v. Norfolk Southern Railway Co.,¹³¹ the plaintiff Robert Mallory filed suit in Pennsylvania state court against the defendant, Norfolk Southern Railway. Mallory did not allege that Norfolk Southern was essentially at home in Pennsylvania, nor did he allege that his claims arose out of or related to Norfolk Southern’s conduct in the forum state. Mallory’s only argument for personal jurisdiction was that Norfolk Southern had registered to do business in Pennsylvania and that, under the terms of Pennsylvania’s statutory scheme, registering to do business in the state constituted consent to personal jurisdiction for all claims in Pennsylvania state court. The Supreme Court of Pennsylvania held that the statute was unconstitutional because it violated the restrictions on general, all-purpose jurisdiction articulated by the U.S. Supreme Court in Daimler AG v. Bauman.¹³² The Court granted certiorari on the question of whether the minimum contacts framework articulated in International Shoe Co. v. Washington¹³³ applies to constrain to traditionally separate category of jurisdiction by consent.

By a 5–4 margin, the Court held that the Pennsylvania statute did not violate due process under the Fourteenth Amendment. The Court fractured in its reasoning, as seems inevitable in personal jurisdiction cases. Justice Gorsuch wrote for a four-justice plurality. Other than the recitation of the facts, the only portion of his opinion that commanded a majority of the court was the conclusion that this case was controlled by the Court’s brief 1917 decision in Pennsylvania Fire Insurance Co. of Philadelphia v. Gold Issue Mining & Milling Co.,¹³⁴ which upheld an arguably similar Missouri statute. A majority of the Court agreed that intervening decisions, including International Shoe, had not implicitly overruled Pennsylvania Fire. Four justices in the plurality laid out a robust defense of consent jurisdiction, with Justice Gorsuch’s opinion rejecting arguments that consent could only be manifested by certain acts or under certain circumstances, stating that “consent may be manifested in various ways by word or deed.”¹³⁵

Justice Jackson concurred separately to note that Norfolk Southern’s registration to do business in Pennsylvania was just another species of waiver, and that such waivers were clearly permissible under the Court’s decision in Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee.¹³⁶ Justice Alito joined only the narrow slice of the plurality’s reasoning that cleaved to Pennsylvania Fire and wrote separately to argue that, although due process did not constrain the Pennsylvania consent statute, the statute should be struck down (again) on remand for violating the dormant Commerce Clause because of a lack of “any legitimate local interest that is advanced by requiring an out-of-state company to defend a suit brought by an out-of-state plaintiff on claims wholly unconnected to the forum State.”¹³⁷ Justice Barrett wrote for four dissenters, arguing that, under the majority’s rule, “[a]ll a State must do is compel a corporation to register to conduct business there (as every State does) and enact a law making registration sufficient for suit on any cause (as every State could do).”¹³⁸

The federal government appeared in Mallory, in part, to persuade the Court that it could invalidate the state consent-to-jurisdiction statute without requiring invalidation of a federal consent-to-jurisdiction statute. The government argued that the restrictions on federal statutes, under the Fifth Amendment to the U.S. Constitution, need not track exactly the restrictions on state statutes under the Fourteenth Amendment. Specifically, the federal government was concerned with the fate of the Promoting Security and Justice for Victims of Terrorism Act (PSJVTA), which states that the Palestinian Authority, the Palestine Liberation Organization, or any entity that holds itself out as performing their functions will be deemed to have consented to jurisdiction in U.S. federal courts for claims under the Anti-Terrorism Act (ATA) if any of those organization take certain specified acts, including making payment to the family of a person convicted of a terrorism offense.¹³⁹

Only a few months after the Court upheld the state statute in Mallory, the Second Circuit struck down the PSJVTA under the Fifth Amendment in Fuld v. Palestine Liberation Organization¹⁴⁰ and Waldman v. Palestine Liberation Organization.¹⁴¹ The PA and PLO distinguished Mallory by arguing that the PSJVTA required neither a formal act manifesting consent (signing a piece of paper and depositing it with the secretary of state’s office) nor reciprocity of obligation (register and get to do business in the Pennsylvania). The court of appeals held that the PSJVTA, unlike the the corporate registration statute in Mallory, did not require as a condition of consent to jurisdiction “litigation-related activities or reciprocal bargains”¹⁴² that demonstrated “an intention to submit” to jurisdiction in a U.S. court.¹⁴³

The combination of Mallory and Fuld bring consent to jurisdiction to an odd point. Reasonable manifestations of consent include purchasing a ticket without reading the fine print on the back.¹⁴⁴ A party might also waive objections to personal jurisdiction by failing to respond to discovery requests¹⁴⁵ or mistakenly entering a general appearance when attempting to enter a special appearance.¹⁴⁶ Under the PSJVTA, the defendant has voluntarily taken an action that it knows will subject it to the personal jurisdiction of a U.S. court for a small set of claims by U.S. nationals. Nonetheless, the Second Circuit held that this act is not a “reasonable” basis “to infer the defendant’s voluntary agreement to submit itself to a court’s authority.”¹⁴⁷

The Supreme Court’s narrowing of general and specific jurisdiction has also pushed litigants to assert jurisdiction under state consent-to-jurisdiction statutes that have not been extensively interpreted by state courts. For example, in K&C Logistics, LLC v. Old Dominion Freight Line, Inc.,¹⁴⁸ the Mississippi Supreme Court interpreted the state’s registration statute, which provides that a foreign corporation “is subject to the same duties, restrictions, penalties and liabilities now or later imposed on, a domestic corporation of like character.”¹⁴⁹ The court acknowledged that this statute was ambiguous as to jurisdiction, but read it alongside another provision of the same title providing that the “appointment or maintenance in this state of a registered agent does not by itself create the basis for personal jurisdiction over the represented entity in this state.”¹⁵⁰ The court held that the Mississippi registration statute did not require consent to personal jurisdiction and rejected arguments that this interpretation created a gap whereby foreign corporations would be covered by neither the long-arm statute nor the registration statute.¹⁵¹ Similarly, the Indiana Court of Appeals rejected the argument that its insurance law “operates as a consent to jurisdiction even as to insurance contracts that are not made within Indiana or with residents of Indiana.”¹⁵²

In National Union Fire Insurance Co. of Pittsburgh v. UPS Supply Chain Solutions, Inc.,¹⁵³ the plaintiff alleged that the jurisdictional provisions of the Montreal Convention conferred personal jurisdiction on the defendant and, in the alternative, that the defendant had “consented to personal jurisdiction by agreeing to be governed by the treaty’s terms” even if “those terms do not themselves concern personal jurisdiction.”¹⁵⁴ The Second Circuit rejected these arguments. Article 33 of the Convention lists several alternative forums where an “action for damages must be brought, at the option of the plaintiff” and states that “[q]uestions of procedure shall be governed by the law of the court seised of the case.” Article 46 contains additional provisions specific to impleader of third parties, which applied in this case. The court observed that, while “Articles 33 and 46 state that actions ‘must be brought’ in one of the specified fora, they do not state that the courts of those fora must entertain such actions without regard for other potential barriers to jurisdiction.”¹⁵⁵ The court noted that this interpretation was consistent with the predecessor treaty, the Warsaw Convention. The court concluded that its interpretation of the treaty necessarily foreclosed the argument that consenting to the treaties’ terms implied consent to jurisdiction in the mandated forums.

2. Specific Jurisdiction

a. Purposefulness

The Supreme Court has likely focused more on the requirement that conduct establishing jurisdiction must be “purposeful” than on any other aspect of the jurisdictional analysis. Yet, confusion still exists among the lower courts as to some basic features of the test.

i. Purposeful Availment vs. Purposeful Direction

In Davis v. Cranfield Aerospace Solutions., Ltd.,¹⁵⁶ the plaintiff alleged a variety of tort claims arising from the defendant’s alleged negligence and other tortious conduct obtaining government approval to install a system on an aircraft that allegedly malfunctioned, causing a crash. At the outset, the Ninth Circuit acknowledged that its prior cases had bifurcated the “purposefulness” test into a “purposeful direction test that typically applies to tort claims” and a “purposeful availment test [that] typically applies to contract cases.”¹⁵⁷ However, the panel rejected any “rigid dividing line” between the two approaches and observed that “there’s no need to adhere to an iron-clad doctrinal dichotomy to analyze specific jurisdiction.”¹⁵⁸

The panel then assessed the defendant’s contacts with the forum state under both approaches, and concluded that the defendant, based in the United Kingdom, did not attempt to gain the “benefits and protections” of Idaho, though the defendant’s “employees engaged in several telephone calls, emails, and other correspondence with individuals in [the forum state] related to the design and safety aspects” of the system and also made two physical visits to the forum state to test it.¹⁵⁹ Judge Baker dissented in part, arguing that the plaintiffs had “established that in over six years of continuing obligations,” the defendant had remotely and physically supervised work in the forum state, had been a critical part of the regulatory certification necessary for the work in the forum state, and had specifically approved installation of the system in the forum state: “That’s much, much, more than enough to establish purposeful availment under our published cases.”¹⁶⁰

Only a few months later, questions of purposefulness divided members of the same court. In Impossible Foods Inc. v. Impossible X LLC,¹⁶¹ Impossible Food brought a trademark infringement action against Impossible X in California. Impossible X had been based for several years in California, before moving to Texas, during which it engaged in various trademark building activities. At the outset, the panel observed that, “[a]lthough the distinction between purposeful availment and direction is often a useful and appropriate doctrinal table-setting device,” this distinction is not an “iron-clad doctrinal dichotomy,” citing Davis.¹⁶² The panel emphasized that, although “Impossible X is now a Texas company, it for years operated based out of California.”¹⁶³ The panel observed that “[w]hen, as here, the defendant’s conduct indisputably occurred in the forum state—and where the defendant was in fact based there—there is no further requirement that the defendant have specific knowledge that its in-state conduct would eventually cause harm in that jurisdiction.”¹⁶⁴

Judge VanDyke dissented, arguing that the panel’s decision “reconceptualizes specific jurisdiction as a kind of backward-looking ‘general jurisdiction lite,’ [that] pushes our precedent in a new and troubling direction.”¹⁶⁵ The panel responded that the dissent’s approach “would impose the very ‘iron-clad doctrinal dichotomy’ between purposeful availment and direction that we have recently (and repeatedly) said need not govern in every case,” by requiring that a defendant “aim” its “conduct at California with the knowledge that it would cause trademark-related harm there.”¹⁶⁶

ii. Online Activity

While the Supreme Court has repeatedly intervened in the doctrine of personal jurisdiction, it has yet to take up any case that directly concerns activity conducted online. This absence has left the lower courts to continue to articulate how the shifting requirements of personal jurisdiction apply to a wide swath of online activity.

In Johnson v. Griffin,¹⁶⁷ the Sixth Circuit considered activity conducted on social media platforms. “Kathy Griffin, a California-based celebrity and social activist, sent a series of tweets to her two million Twitter followers asserting that Tennessean Samuel Johnson, the CEO of Tennessee-based VisuWell, had engaged in homophobic conduct. She encouraged her followers to make him ‘online famous’ and tagged his company.”¹⁶⁸ She also asked that VisuWell “remove[]” him from their Board of Directors, which VisuWell then did, firing him in addition. Johnson sued Griffin in Tennessee. The court had to interpret the Supreme Court’s “bookend” precedents on purposefulness in intentional torts, Calder v. Jones¹⁶⁹ and Walden v. Fiore,¹⁷⁰ which together hold that a defendant purposefully directs its conduct to a forum state only when it targets the forum state itself and not merely a person who happens to be in the forum state.

The court noted that Griffin had “impugned the professionalism” of an executive working in Tennessee, using information drawn from Tennessee sources, and intended the “brunt of the harm” to occur in Tennessee as the result of action by a Tennessee-based company.¹⁷¹ The court observed that “Griffin’s repeated emphasis of Johnson’s residence in Franklin and the company’s home base in Nashville hammers that home.”¹⁷² The court emphasized that “[w]e have not hesitated to hold that personal jurisdiction satisfies due process when a defendant’s communications to decisionmakers in the forum state led to the plaintiff’s firing.”¹⁷³ By tagging VisuWell in her tweets, Griffin transmitted her message to Johnson’s employer, rather than “disseminat[ing] these tweets generally to her two million followers.”¹⁷⁴ Judge Cole wrote separately to note that “[f]uture cases involving communication via social media, including Twitter, may not be as straightforward,” in particular when the nature of the communication or the technology of the platform does not communicate directly to a forum state resident, as did the tweet that tagged VisuWell.¹⁷⁵

In Groo v. Montana Eleventh Judicial District Court,¹⁷⁶ the Montana Supreme Court came to a similar conclusion. Melissa Groo, a New York resident, received and replied to email correspondence from a former employee of Triple D Game Farm, Inc., a Montana “wildlife photography farm.” Groo then “used Facebook to share content pertaining to Triple D and to encourage other users to take explicit actions intended to affect Triple D,” followed by further use of “Facebook to share information about Triple D and to direct users to take action that would affect Triple D’s operations.”¹⁷⁷ The court noted that “[a]pproximately one-quarter of the individuals and companies tagged by Groo were located in Montana,” and that others “tagged were not located in Montana, but had ongoing contracts with Triple D that were executed, and to be performed in, Montana.”¹⁷⁸ The court held that Groo was subject to personal jurisdiction in Montana.

Justice McKinnon dissented, stating that jurisdiction in this case did not satisfy Montana’s long-arm statute or the requirements of due process, because “Triple D’s tort claims are based on communications occurring outside Montana between nonresident individuals on a national forum.”¹⁷⁹ The dissent argued that the “error in the Court’s analysis is its failure to distinguish between targeting a specific individual and targeting the State of Montana,” and that Groo’s Facebook history revealed that only three Montana residents were tagged.¹⁸⁰ The majority responded that the “general rule from the Dissent’s cases is clear—and we agree—simply posting information on the internet for anyone to see is not enough by itself to establish personal jurisdiction over a defendant,” but that “when a defendant engages in a targeted campaign against a Montana business, tags Montana residents and those doing business in Montana, and encourages them to refrain from doing or continuing actions in Montana, that person has purposefully directed conduct into Montana.”¹⁸¹

Courts have also continued to grapple with personal jurisdiction when product sales occur through an interactive website. The Ninth Circuit decided two cases that provide a helpful contrast. In Herbal Brands, Inc. v. Photoplaza, Inc.,¹⁸² the court held, as a matter of first impression, “that if a defendant, in its regular course of business, sells a physical product via an interactive website and causes that product to be delivered to the forum, the defendant ‘expressly aimed’ its conduct at that forum.”¹⁸³

The Ninth Circuit followed Herbal Brands with Briskin v. Shopify, Inc.,¹⁸⁴ considering how to apply the personal jurisdiction inquiry to Shopify, “a broadly accessible back-end web platform . . . that processes consumer payments.”¹⁸⁵ The court held that its precedents governing interactive websites should apply to Shopify because Shopify’s “extraction of consumer data” is not necessarily more “active” engagement with forum states.¹⁸⁶ The court also observed that “due process concerns animating our internet-activity personal jurisdiction” apply similarly to an “interactive web platform that predominantly offers content and one that processes consumer transactions,” because “the nationwide availability of these platforms provides a common denominator that raises consonant due process concerns.”¹⁸⁷ The court specifically rejected an analogy to its recent decision in Herbal Brands, holding that the prior case was limited to the sales of physical products and did not extend to other online activity.¹⁸⁸ Having framed the analysis, the court held that Shopify’s monitoring of consumer spending, without more, did not constitute purposeful direction of conduct to the forum state of California.

iii. Statutory Claims

The Supreme Court’s narrowing of general and specific jurisdiction also continues to have the unintended consequence of preventing U.S. nationals from bringing federal statutory causes of action in American courts. In Lewis v. Mutond,¹⁸⁹ the Torture Victim Protection Act (TVPA) joined the ATA in the ranks of explicitly extraterritorial statutes whose functions are now circumscribed by plaintiffs’ inability to assert personal jurisdiction over the defendants. In Lewis, the plaintiff, a U.S. citizen, was a security advisor to a presidential candidate in the Democratic Republic of Congo when he was allegedly abducted and tortured over six weeks by foreign officials with the goal of extracting a false confession that he was an American mercenary conspiring to overthrow the government. Lewis sued the foreign officials, Kalev Mutond and Alexis Tambwe Mwamba, in the U.S. District Court for the District of Columbia under the TVPA. Mutond and Mwamba successfully moved to dismiss the suit for lack of personal jurisdiction. Lewis appealed the case to the D.C. Circuit.¹⁹⁰

The D.C. Circuit affirmed. It first reiterated its view that the jurisdictional constraints of the Fourteenth and the Fifth Amendments are “generally analogous.”¹⁹¹ The court observed that its “precedents foreclose [the plaintiff’s] jurisdictional theory that [Mutond and Mwamba] tortured him because they believed he was an American mercenary.”¹⁹² The court also rejected the plaintiff’s argument that the vitality of the TVPA as a statutory scheme should factor into the court’s analysis. Judge Rao concurred to argue that “[t]here is substantial evidence that the Fifth Amendment does not impose the same due process limits on personal jurisdiction in the federal courts as the Fourteenth Amendment does in the state courts,” and to suggest that the D.C. Circuit should reconsider its position en banc.¹⁹³

b. Relatedness

In Ford Motor Co. v. Montana Eighth Judicial District Court,¹⁹⁴ the Supreme Court clarified the relatedness requirement (or nexus test) of the specific jurisdiction inquiry, rejecting the defendant’s argument that a plaintiff’s claim “arises out of or relates to” the defendant’s contacts with the forum only if those contacts directly caused the defendant’s injury. Rather, the Court held that a plaintiff’s claim “relates” to the defendant’s contacts in the forum if the defendant engaged in conduct similar to that which caused the plaintiff’s injury and that injury occurred in the forum. The decision left open many questions, including whether the nexus test would be satisfied in the forum state where the defendant first sold a defective product if the injury occurred elsewhere.

The Supreme Judicial Court of Massachusetts answered this question in Doucet v. FCA US LLC.¹⁹⁵ The court observed that Ford “did not rule out jurisdiction where the first sale of the automobile at issue occurs” and that the “thrust of the opinion was to expand, not contract, jurisdiction, beyond requiring ‘but for’ causation.”¹⁹⁶ The court held that the relatedness requirement was satisfied in the forum where the defendant had “business dealings related to the automobile that is the subject of the litigation.”¹⁹⁷

The Sixth Circuit rejected a similar attempt to construe Ford’s holding narrowly. In Sullivan v. LG Chem, Ltd.,¹⁹⁸ the defendant manufactured lithium-ion batteries that exploded in the plaintiff’s pocket and caused him severe burns. The plaintiff purchased these batteries at a vape store in Michigan, where he then sued the defendant. The defendant argued that it had not sold in Michigan the particular batteries that caused the plaintiff’s injuries and, in addition, that it had never sold into Michigan for consumer use the type of batteries that harmed the plaintiff. The court rejected this approach as “too narrow” and “disguising [Ford’s] rejected causation analysis.”¹⁹⁹ The court declined to adopt such a market-specific approach, noting that, under the defendant’s proposed analysis,

the only way a court could have personal jurisdiction over [a defendant is] when a consumer plaintiff suffers an injury from [the defendant’s] batteries is if [defendant] served the consumer market for . . . batteries in the forum state, even if it distributes that same injuring product within the forum state for a different market.²⁰⁰

In another lithium-ion battery case, however, the Ninth Circuit held that the relatedness requirement was not satisfied. In Yamashita v. LG Chem, Ltd.,²⁰¹ the plaintiff sued the defendants, LG Chem and LGCA (a U.S. subsidiary of LG Chem) in Hawaii, where he suffered injury from the explosion of an 18650 lithium-ion battery in his mouth while using an electronic cigarette. The plaintiff alleged a different stew of contacts, including that LG Chem and LGCA had shipped products through the port of Honolulu, that LG Chem had sold residential solar batteries into Hawaii, that “various consumer products sold in Hawaii contain LGC-produced lithium-ion batteries, including 18650 batteries,” and that “stand-alone” LG Chem lithium-ion batteries are available from a third-party website.²⁰² The opinion is notable for the very different lesson it took from the Ford decision, reading it to adopt a strong element of causation, even in the face of its rejection of Ford’s proposed test that would have required direct causation in the forum.

In the Yamashita panel’s account, the Ford opinion “emphasized that Ford’s forum contacts may well have played a causal role in the introduction to the forum state of the particular vehicle causing the injury” and that Ford had extensively marketed the same models in the state and therefore assumed an obligation to ensure the safety of those models. On this reading of Ford, the court did not hesitate to hold that the plaintiff’s claim did not relate to defendants’ contacts in the forum because “[t]here is little reason to believe that either firm’s port contacts or LGC’s solar contacts have anything to do with Hawaii residents’ acquisition of 18650 lithium-ion batteries.”²⁰³

The Yamashita decision’s embrace of Ford as requiring a causal relationship just short of direct causation stands in almost direct opposition to the Supreme Court of Tennessee’s embrace of Ford in Baskin v. Pierce & Allred Construction, Inc. as “effectively . . . abrogat[ing] any approach that required a causal connection.”²⁰⁴ The plaintiff (a Tennessee resident) contacted with the defendant, a general contractor (and Alabama corporation), to construct a custom lake house in Alabama. The plaintiff sent the architectural plans and materials from Tennessee to Alabama. Alleging that the defendant “grossly mismanaged” the project, the plaintiff sued the defendant in Tennessee. The defendant moved to dismiss for lack of personal jurisdiction.

The Tennessee court canvassed all the various approaches to the nexus test that predated the Ford decision: “substantial relevance,” “but-for,” “substantial connection,” and other “hybrid” approaches, and the court observed that Ford’s

analysis clarified that a strict causal nexus between a plaintiff’s claim and the defendant’s forum activities is not necessary for a state to exercise specific jurisdiction, but . . . did not identify with particularity the nature and quality of forum activities that sufficiently ‘relate to’ a claim to allow for the exercise of specific jurisdiction.²⁰⁵

The Tennessee court noted that perhaps the most important aspect of Ford was that it “offered a comparative example of circumstances in which the exercise of specific jurisdiction based on ‘related’ contacts was constitutionally permissible.”²⁰⁶ Based on that example, the court had little doubt that the plaintiff’s claim did not sufficiently relate to whatever contacts the defendant had in Tennessee.

The First Circuit in Cappello v. Restaurant Depot, LLC²⁰⁷ offered yet another interpretation of the Court’s holding in Ford. The plaintiff, a New Hampshire resident, travelled to New Jersey, ate a salad, returned to New Hampshire, and developed a life-threatening E. coli infection that required removal of his colon. The plaintiff brought a lawsuit in New Hampshire against the company that sold lettuce to the restaurant that served him the contaminated salad. That defendant was incorporated in Delaware with its principal place of business in New York. The plaintiff alleged that the defendant sold restaurant supplies, including produce, to multiple businesses in New Hampshire. The court observed that the Ford court “rejected Ford’s ‘causation-only approach’” but also “rejected Ford’s argument that there was no causal link to the forum states where the vehicles were not designed, manufactured, or sold.”²⁰⁸ Based on that understanding of Ford, the court rejected the plaintiff’s argument that “the Ford test is satisfied because ‘the type of product that Mr. Cappello was injured by is the type of product that Restaurant Depot reaps a benefit from in its business contacts in New Hampshire.’”²⁰⁹ Rather, the court seemed to stress that the defendant had no interactions with retail customers in New Hampshire (or elsewhere).

3. Personal Jurisdiction and Multiple Parties

For the most part, personal jurisdiction is analyzed defendant by defendant, a sensible approach if the doctrine is truly grounded in individual liberty interests. Nevertheless, personal jurisdiction intersects with litigation involving multiple parties in multiple ways that continue to produce controversy, including conspiracy and the obligations of successor entities.

Under the theory of conspiracy jurisdiction, “one conspirator’s minimum contacts allow for personal jurisdiction over a co-conspirator,” even when the co-conspirator lacks such contacts itself.²¹⁰ The Second Circuit previously laid out three requirements for conspiracy jurisdiction: “the plaintiff must allege that (1) a conspiracy existed; (2) the defendant participated in the conspiracy; and (3) a co-conspirator’s overt acts in furtherance of the conspiracy had sufficient contacts with a state to subject that co-conspirator to jurisdiction in that state.”²¹¹ That court’s decision in In re Platinum & Palladium Antitrust Litigation²¹² is a representative application of that doctrine, but perhaps more notably, is an instance where a panel questioned the expansiveness of the doctrine.

The panel noted that “[c]onspiracy jurisdiction seems to have expanded beyond its more limited roots.”²¹³ In particular, the panel observed that conspiracy jurisdiction had its origins in the imputation of the jurisdictional contacts of agents to their principals—a relatively conventional idea. But the panel observed that the Second Circuit has since rejected agency principles as a limitation on conspiracy jurisdiction. The panel did not go beyond acknowledging the debate, as it viewed itself as bound by circuit precedent.

The Second Circuit also took up the question of when a corporation that purchases the assets of another also acquires its jurisdictional contacts. In Lelchook v. Societe Generale de Banque au Liban SAL,²¹⁴ the panel acknowledged that “[u]nder both New York law and traditional common law, a corporation that purchases the assets of another corporation is generally not liable for the seller’s liabilities,” but also that there are “certain exceptions to this rule.”²¹⁵ In Lelchook, the panel considered whether New York law recognized a rule under which exceptions to the liability rule also implied exceptions to the default rule for personal jurisdiction that each party is evaluated on the basis of their own contacts. The panel observed the decisions of New York courts provide only “limited guidance” and that previous federal decisions do not “resolve the jurisdictional issue.” Accordingly, the panel certified the question to the New York Court of Appeals, which accepted the certification.

The Second Circuit also revisited an area that has generated quite a bit of personal jurisdiction doctrine: the use of a correspondent bank account to process dollar denominated transactions. The rise in these cases is not a coincidence. As the Supreme Court has narrowed personal jurisdiction, the use of correspondent banking relationships to get access to the U.S. financial system has become an important jurisdictional hook, particularly in transnational terrorism cases. In Spetner v. Palestine Investment Bank,²¹⁶ the Second Circuit considered whether an agent’s use of a correspondent bank account could subject the principal to jurisdiction in a U.S. court. In Spetner, the plaintiffs’ claims arose from terrorist attacks allegedly committed by Hamas and other terrorist organizations supported by the Arab Liberation Front (ALF). The defendant, Palestine Investment Bank (PIB) maintained checking accounts for the head of the ALF and for Hamas’s fundraising arm, the Holy Land Foundation (HLF). PIB used a correspondent account with the Amman-branch of Arab Jordan Investment Bank (AJIB) to receive payments from HLF and to funnel them from the Saddam Hussein government to the head of ALF, who then made payments to the families of deceased terrorists. The court held that PIB’s conduct satisfied the requirements of both the New York long-arm statute and of constitutional due process. The court noted that “[d]ue process ensures that the foreign defendant is not haled into the forum based solely on the unilateral activity of a third party,” but that “PIB’s use of a New York account through AJIB overcomes any claim that AJIB’s acts were unilateral.”²¹⁷ The appellate court reversed the district court’s conclusion that PIB did not exercise “some control” over AJIB and held that a “nested” correspondent banking relationship such as this could satisfy the requirements for imputation of the agent’s jurisdictional contacts to the principal.

Finally, the Supreme Court of Nebraska considered, as a question of first impression, how to assess the minimum contacts of “an intermediary who introduced parties that independently negotiated and entered into the underlying contracts.”²¹⁸ The court analogized this situation to its precedents on “successor entities” and held that

because minimum contacts depend on the activities of the defendant related to the operative facts of the litigation and not on the unilateral actions taken by someone else, direct contacts between the independent contracting parties, which the intermediary is not involved in, do not create minimum contacts for the intermediary.²¹⁹

B. Forum Non Conveniens

In DIRTT Environmental Solutions, Inc. v. Falkbuilt Ltd., the Tenth Circuit considered the “key question [of] what does it mean for a foreign forum to be available under forum non conveniens?”²²⁰ Specifically, the court rejected the argument that a “foreign forum is available for the purposes of forum non conveniens whenever the particular defendants moving for dismissal are amenable to process in, and subject to the jurisdiction of, that foreign forum, even if that does not include other defendants in the action.”²²¹ Rather, the court reasoned that, because “[f]orum non conveniens is a doctrine that is fundamentally concerned with convenience,” it should not be used to “split cases.”²²² The court held that a motion for forum non conveniens dismissal must be denied in cases, such as this one, where only the movant had consented to jurisdiction in the foreign forum but other defendants had not. The court held that the district had “clearly” abused its discretion by dismissing the case.

In dmarcian, Inc. v. dmarcian Europe BV,²²³ the Fourth Circuit held that “lack of a remedy for certain intellectual property claims proves fatal to the adequacy of the alternative forum” and therefore requires a court to reject a motion to dismiss for forum non conveniens.²²⁴ The court held that the defendant failed to meet its burden of demonstrating that Dutch courts provided an adequate alternative forum because of their “inability to effectively adjudicate [the plaintiff’s] American trademark law claims disqualified it as an adequate forum.”²²⁵ The court noted that the “the Dutch courts could not provide relief even if [the plaintiff] proved itself wronged,” because the Dutch court would be “[w]ithout the ability to offer [the plaintiff] a remedy that would ‘traverse international borders.’”²²⁶

In the Atlantic Marine case, the Supreme Court held that “the appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is through the doctrine of forum non conveniens.”²²⁷ In Nulogy Corp. v. Menasha Packaging Co., LLC,²²⁸ the Seventh Circuit considered, as a matter of first impression, whether “the naming of a defendant not party to a contractual forum selection clause upset[s] Atlantic Marine’s forum non conveniens analysis as to claims against a party that is subject to the clause.”²²⁹ The court held it did not because such an approach would permit parties to “subvert” a forum selection clause by “picking and choosing” which defendants to sue.²³⁰

C. Service of Process

In Kluender v. Plum Grove Investments, Inc.,²³¹ the Supreme Court of Iowa considered whether due process required personal service of a tax delinquency notice. Relying on the Supreme Court’s decision in Mathews v. Eldridge,²³² the plaintiff argued that the Iowa statute was unconstitutional on its face because it never required personal notice. The court began by rejecting the argument that Mathews provided the controlling framework, instead turning to the “well-settled practice” of using the more specific test applying to service of process articulated in Mullane v. Central Hanover Bank & Trust Co.²³³ Under Mullane, the court concluded that statute’s requirements of regular and certified mail were sufficient and rejected the notion that personal service is the only constitutional option, distinguishing prior decisions that invalidated a statute permitting service by certified mail for notice of eviction proceedings that would commence within days.

V. Recognition and Enforcement of Judgments

A. Sister-State Judgment Recognition

American courts have split over whether a state judgment recognizing a judgment or award is itself a judgment entitled to nearly automatic recognition under the Full Faith and Credit Clause of the Constitution.²³⁴ These cases have normally come up in the context of a state judgment recognizing a foreign-country judgment that the judgment creditor then seeks to have recognized in another state. The New Mexico Court of Appeals’ decision in WV 23 Jumpstart, LLC v. Mynarcik²³⁵ tackles this question in an unusual context: an action to recognize a state judgment that recognized another state judgment. The creditor initially obtained a Nevada judgment, obtained recognition of the Nevada judgment in California, and then sought recognition of the California judgment in New Mexico after the original Nevada judgment lapsed. The trial court denied recognition to the California judgment on the basis that recognition of the Nevada judgment in California had been a mere ministerial act. The Court of Appeals reversed, reasoning that California law treated a recognition judgment as an original judgment of the California courts and that therefore that fact that recognition was accomplished through a ministerial act was irrelevant.

B. Foreign-Country Judgment Recognition

In Adjei v. Mayorkas,²³⁶ the Fourth Circuit considered whether to recognize a non-monetary foreign-country judgment. The judgment in question was a Ghanian divorce between two Ghanian citizens rendered under Ghanian customary law, but issued while neither party was present or domiciled in Ghana. The non-monetary nature of the judgment took the question of recognition outside the scope of Virginia’s Uniform Foreign-Country Money Judgments Recognition Act and forced the court to consider recognition purely as a matter of international comity.

The Supreme Court of Virginia has held that the

Commonwealth will only grant comity to an act of another sovereign if (1) the other sovereign had jurisdiction to enforce its order within its own judicatory domain, (2) the relevant law of the other sovereign is reasonably comparable to that of Virginia, (3) the decree was not obtained through fraud, and (4) enforcement of the other sovereign’s decree would not be contrary to the public policy of Virginia.²³⁷

The Fourth Circuit held that all four requirements were satisfied, focusing on the second and fourth requirements. The Court noted that, although Virginia law requires domicile to grant divorces, it does not “follow that Virginia would refuse to recognize, as a matter of comity, a divorce issued by a foreign nation simply because Virginia itself would not grant a divorce under similar circumstances,” and that this “is especially true where, as here, the basis for the foreign nation’s jurisdiction to grant the divorce is the divorcing parties’ citizenship in that nation, a basis that has no independent analogue in the domestic context.”²³⁸ Judge Wilkinson dissented, arguing that the Ghanaian decree was based on law not reasonably comparable to Virginia law and that, in any event, enforcement of the decree would violate Virginia public policy.

In Lancaster v. WestCorp Solutions, Ltd., the Texas Court of Appeals considered whether to recognize a foreign-country money judgment based on an underlying cause of action without a clear analog in domestic law.²³⁹ In Lancaster, the creditor had obtained a Canadian judgment on a cause of action for “loss of hope,” which sought compensation for interference with a fiduciary relationship. The debtor argued that, unlike Texas law, Canadian law permitted damages for lost profits based on “uncertain or speculative calculations.” The Texas court noted that, though there may be significant differences between Texas and Canadian law, nothing in the Canadian law was “inimical to good morals, natural justice, or the general interests of the citizens of this state.”²⁴⁰ The court affirmed the trial court’s recognition of the Canadian judgment.

C. Judgment Enforcement

In Compania de Inversiones Mercantiles S.A. v. Grupo Cementos de Chihuahua S.A.B. de C.V.,²⁴¹ the Tenth Circuit joined the growing number of courts that have held that a court may order a debtor or third-party garnishee to bring assets held abroad into the United States if the court has personal jurisdiction over the debtor or third party. In this case, the court of appeals first affirmed the district court’s refusal to vacate the recognition of an arbitral award based on a set-aside of the award at the seat of the arbitration.²⁴² The court then considered whether the debtor could be compelled to bring assets into the forum state of Colorado, under the Colorado turnover statute, although those assets were allegedly held abroad by third parties.

The court first held that, under the Colorado statute, a court “may order any party or other person over whom the court has jurisdiction” to apply property “whether in the possession of such party or other person . . . towards satisfaction of the judgment,” and did not require that the assets be in the ”actual possession” of the debtor (over whom the court had personal jurisdiction).²⁴³ Rather, the debtor could be ordered to assist in obtaining the assets from the foreign third parties. Second, the court held that the Supreme Court’s Morrison decision reviving the presumption against extraterritoriality and its progeny did not apply to the Colorado turnover statute. The court relied on the Supreme Court’s language in Kiobel that “[w]e typically apply the presumption to discern whether an Act of Congress regulating conduct applies abroad.”²⁴⁴ The court of appeals reasoned that the Colorado statute did not regulate conduct or supply a cause of action, but “merely allows a court to direct a party to turn over certain property to satisfy a judgment,” and therefore “did not implicate the presumption against extraterritoriality.”²⁴⁵ Lastly, the court of appeals held that it would not accord comity to an injunction of the Mexican court blocking the debtor from conveying the disputed assets out of the country because courts “do not accord comity when a party deliberately seeks to block collection of a confirmed U.S. judgment.”²⁴⁶

In Cortland Street Recovery Corp. v. Bonderman,²⁴⁷ the First Department of the New York Supreme Court, Appellate Division (the intermediate state appellate court that covers Manhattan) considered a particular collision of the internal affairs doctrine and the lex fori rule generally applicable to enforcement of judgments. In Cortland (an outgrowth on the long-running Madoff litigation), the creditor sought to enforce a New York judgment against a Luxembourg entity and a Luxembourg-affiliated entity. The court observed that, because the entities “were incorporated in Luxembourg,” there is “a presumption that Luxembourg law governs,” under the internal affairs doctrine. However, the court held that “the circumstances here militate in favor of applying New York law,” because “[t]he action largely concerns the enforcement of a New York judgment, and New York law has consistently been applied to the alter ego/veil piercing issue throughout the prior stages of the litigation.”²⁴⁸

Footnotes

1

This Survey does not reflect the views of the Association of American Law Schools or its Section on Conflict of Laws.

2

76 F.4th 1125 (8th Cir. 2023).

3

82 F.4th 835 (9th Cir. 2023).

4

EXC Inc. v. Jensen, 588 Fed. App’x 720 (9th Cir. 2014).

5

229 N.E.3d 70 (Ohio 2023).

6

Hoskins v. Aetna Life Ins. Co., 452 N.E.2d 1315 (Ohio 1983).

7

883 S.E.2d 556 (Ga. Ct. App. 2023).

8

848 S.E.2d 876 (Ga. 2020).

9

Id. at 896 (quotation marks and citations omitted); see Symeon C. Symeonides, Choice of Law in the American Courts in 2020: Thirty-Fourth Annual Survey, 69 Am. J. Comp. L. 177, 189–93 (2021) (discussing Auld).

10

Whitlock, 883 S.E.2d at 565.

11

Id.

12

Id. at 566.

13

376 U.S. 612, 639 (1964).

14

69 F.4th 665 (9th Cir. 2023).

15

Id. at 674.

16

John F. Coyle, The Mystery of the Missing Choice-of-Law Clause, 56 U.C. Davis L. Rev. 707 (2022).

17

289 A.3d 1274 (Del. 2023).

18

Id. at 1278.

19

Id.

20

528 P.3d 327 (Utah Ct. App. 2023).

21

Id. at 348.

22

2023 Guam 10.

23

No. 21CA011779, 2023 WL 1095533 (Ohio Ct. App. Jan. 30, 2023).

24

Id. at *1.

25

Id.

26

Id. at *5.

27

288 A.3d 602 (Conn. 2023).

28

Id. at 613.

29

672 S.W.3d 852 (Ky. 2023).

30

526 P.3d 1282 (Utah Ct. App. 2023).

31

Id. at 1291.

32

995 N.W.2d 277 (Wis. Ct. App. 2023).

33

See Wisconsin Indus. Energy Grp., Inc. v. Pub. Serv. Comm’n, 819 N.W.2d 240, 252 (Wis. 2012) (noting that “[t]he general rule, unquestionably, is that laws of a state have no extraterritorial effect”). See generally William S. Dodge, Presumptions Against Extraterritoriality in State Law, 53 U.C. Davis L. Rev. 1389 (2020).

34

Wis. Stat. § 100.18(1).

35

Talyansky, 995 N.W.2d at 283.

36

Id.

37

T&M Farms v. CNH Indus. Am., LLC, 488 F. Supp. 3d 756, 762 (E.D. Wis. 2020).

38

John F. Coyle, The Canons of Construction for Choice-of-Law Clauses, 92 Wash. L. Rev. 631, 666–80 (2017).

39

Several recent academic articles have sought to explain why contract drafters so frequently fail to draft choice-of-law clauses to maximize their advantages in litigation. See John F. Coyle, The Mystery of the Missing Choice-of-Law Clause, 56 U.C. Davis L. Rev. 707 (2022); Stephen J. Choi, Robert E. Scott & Mitu Gulati, Investigating the Contract Production Process, 16 Cap. Mkts. L.J. 414 (2021); John F. Coyle, A Short History of the Choice-of-Law Clause, 91 Colo. L. Rev. 1147 (2020).

40

66 F.4th 20 (1st Cir. 2023).

41

The exact same choice-of-law clause was the subject of an appeal to the U.S. Supreme Court in 2023. On February 21, 2024, the Court held that, as a matter of federal maritime law, choice-of-law provisions in maritime contracts are presumptively enforceable. Great Lakes Ins. SE v. Raiders Retreat Realty Co., LLC., 601 U.S. 65 (2024). If the lower courts had addressed the interpretive issues first, there would have been no need to reach the enforceability question. See John F. Coyle, Missed Opportunities in Great Lakes, Transnat’l Litig. Blog (Sept. 5, 2023), https://tlblog.org/missed-opportunities-in-great-lakes.

42

66 F.4th 28 (1st Cir. 2023).

43

483 P.3d 796 (Wash. Ct. App. 2023).

44

No. 21-6243, 2023 WL 3067756 (6th Cir. Apr. 25, 2023).

45

Id. at *3 (emphasis added).

46

539 P.3d 648 (Mont. 2023).

47

536 P.3d 695 (Wash. Ct. App. 2023).

48

Id. at 718.

49

Id.

50

Cal. Lab. Code § 925.

51

60 F.4th 1144 (8th Cir. 2023), cert. denied, 144 S. Ct. 190 (2023).

52

Id. at 1150.

53

892 S.E.2d 719 (Ga. 2023).

54

Id. at 725.

55

Id. at 726.

56

309 Cal. Rptr. 3d 877 (2023).

57

Id. (citing Smith, Valentino & Smith, Inc. v. Superior Court, 551 P.2d 1206, 1209 (Cal. 1976))

58

Id. (quoting Kevin Clermont, Governing Law on Forum-Selection Agreements, 66 Hastings L.J. 643, 656 (2015)).

59

Id.

60

See generally John F. Coyle, Interpreting Forum Selection Clauses, 104 Iowa L. Rev. 1791 (2019).

61

527 P.3d 122 (Wash. Ct. App. 2023).

62

Id. at 125.

63

304 Cal. Rptr. 3d 651 (Cal. Ct. App. 2023).

64

Id. at 655.

65

See Hall v. Superior Ct., 197 Cal. Rptr. 757, 762 (Cal. Ct. App. 1983) (securities laws); Am. Online, Inc. v. Superior Ct., 108 Cal. Rptr. 2d 699, 702 (Cal. Ct. App. 2001) (consumer protection laws); Verdugo v. Alliantgroup, L.P., 187 Cal. Rptr. 3d 613, 617 (Cal. Ct. App. 2015) (wage and hour laws); Handoush v. Lease Fin. Grp., LLC, 254 Cal. Rptr. 3d 461, 469 (Cal. Ct. App. 2019) (right to jury trial); EpicentRx, Inc. v. Superior Ct. of San Diego Cnty., 895, 313 Cal. Rptr. 3d 782, 786 (Cal. Ct. App. 2023) (same).

66

No. 23-20066, 2023 WL 8613609 (5th Cir. Dec. 13, 2023).

67

Id. at *3.

68

Id.

69

Id.

70

This difference in approach produces differences in case outcomes across the board. A recent empirical study found that courts in the Fifth Circuit enforce forum selection clauses at a higher rate than courts in the Ninth Circuit. See John F. Coyle, “Contractually Valid” Forum Selection Clauses, 108 Iowa L. Rev. 127, 162 (2022).

71

John F. Coyle & Katherine C. Richardson, Enforcing Outbound Forum Selection Clauses in State Court, 96 Indiana L.J. 1089, 1123 (2021).

72

Id. at 1125–28.

73

217 N.E.3d 1267, 1274 (Ind. Ct. App. 2023).

74

599 U.S. 533 (2023).

75

579 U.S. 325 (2016).

76

Yegiazaryan, 599 U.S. at 543–44.

77

Id. at 546.

78

Id. at 552 (Alito, J., dissenting).

79

Yegiazaryan’s holding may have implications for other kinds of cases too. In Global Master International Group, Inc. v. Esmond Natural, Inc., 76 F.4th 1266 (9th Cir. 2023), the Ninth Circuit held that a Chinese company stated a valid civil RICO claim against a U.S. company that delivered “fraudulently non-conforming” goods in California for export to China. Applying Yegiazaryan, the court held that RICO’s domestic injury requirement was satisfied because the Chinese company took delivery of the goods in the United States.

80

600 U.S. 412 (2023).

81

Id. at 418.

82

Id. at 436 (Sotomayor, J., concurring in the judgment).

83

15 U.S.C. §§ 1115(1)(a) & 1125(a)(1)(A).

84

561 U.S. 247 (2010); see William S. Dodge, The New (Old) Presumption Against Extraterritoriality, Transnat’l Litig. Blog (Sept. 6, 2023), https://tlblog.org/the-new-old-presumption-against-extraterritoriality.

85

See, e.g., Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60, 69 (2d Cir. 2012).

86

See Hartford Fire Ins. Co. v. California, 509 U.S. 764, 796 (1993).

87

260 U.S. 94 (1922).

88

Id. at 98.

89

65 F.4th 1273 (11th Cir. 2023).

90

76 F.4th 1183 (9th Cir. 2023).

91

See Abitron Austria GmbH v. Hetronic Int’l, Inc., 600 U.S. 412, 417–18 (2023).

92

See RJR Nabisco, Inc. v. European Community, 579 U.S. 325, 340 (2016) (quoting Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 265 (2010)).

93

Alahmedalabdaloklah, 76 F.4th at 1204.

94

Id. at 1208.

95

Morrison, 561 U.S. at 261.

96

RJR Nabisco, 579 U.S. at 340.

97

73 F.4th 700 (9th Cir. 2023).

98

28 U.S.C. § 1350.

99

542 U.S. 692 (2004).

100

See Aziz v. Alcolac, Inc., 658 F.3d 388 (4th Cir. 2011); Presbyterian Church v. Talisman Energy, 582 F.3d 244 (2d Cir. 2009).

101

Cabello v. Fernandez-Larios, 402 F.3d 1148 (11th Cir. 2005).

102

138 S. Ct. 1386 (2018).

103

141 S. Ct. 1931 (2021).

104

Doe I v. Cisco Sys., Inc., 73 F.4th 700, 738 (9th Cir. 2023). In another significant decision, the Eastern District of Virginia held that ATS claims based on torture by a U.S. contractor at Abu Ghraib prison in Iraq had sufficient connections to the United States to constitute a domestic application of the ATS. Al Shimari v. CACI Premier Tech., Inc., 684 F. Supp. 3d 481 (E.D. Va. 2023).

105

28 U.S.C. § 1350 (note).

106

Mohamad v. Palestinian Auth., 566 U.S. 449 (2012).

107

598 U.S. 471 (2023).

108

18 U.S.C. § 2333(d)(2).

109

Twitter, 598 U.S. at 489.

110

Id.

111

Id. at 497.

112

Id. at 499.

113

Id.

114

598 U.S. 617 (2023) (per curiam).

115

47 U.S.C. § 230.

116

77 F.4th 667 (D.C. Cir. 2023).

117

Id. at 677–79 (citing Owens v. BNP Paribas, S.A., 897 F.3d 266 (D.C. Cir. 2018)).

118

Id. at 675 (quoting Twitter v. Taamneh, 598 U.S. 471, 493 (2023)).

119

Id.

120

598 U.S. 264 (2023).

121

28 U.S.C. § 1604.

122

Id. § 1330(a).

123

Halkbank, 598 U.S. at 284–85 (Gorsuch, J., concurring in part and dissenting in part).

124

141 S. Ct. 703 (2021).

125

28 U.S.C. § 1605(a)(3).

126

Philipp v. Stiftung Preussischer Kulturbesitz, 77 F.4th 707 (D.C. Cir. 2023).

127

77 F.4th 1077 (D.C. Cir. 2023).

128

Id. at 1097–98 (relying on Restatement (Second) of Foreign Relations Law § 175 & cmt. d (Am. L. Inst. 1965)); see also Toren v. Fed. Republic of Germany, No. 22-7127, 2023 WL 7103263 (D.C. Cir. Oct. 27, 2023) (following Simon).

129

81 F.4th 28 (2d Cir. 2023).

130

538 U.S. 468, 480 (2003).

131

600 U.S. 122 (2023).

132

571 U.S. 117 (2014).

133

326 U.S. 310 (1945).

134

243 U.S. 93 (1917).

135

Mallory, 600 U.S. at 138 (plurality).

136

456 U.S. 694 (1982).

137

600 U.S. at 162 (Alito, J., concurring).

138

Id. at 163–64 (Barrett, J., dissenting).

139

Pub. L. No. 116-94, § 903, 133 Stat. 3082, 3082–83 (2019).

140

82 F.4th 74 (2d Cir. 2023).

141

82 F.4th 64 (2d Cir. 2023).

142

Fuld, 82 F.4th at 91.

143

Id. at 90 (quoting J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 880–81 (2014)).

144

See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991); see generally John F. Coyle & Katherine C. Richardson, Enforcing Inbound Forum Selection Clauses in State Court, 53 Ariz. St. L.J. 65 (2021) (discussing use of forum selection clauses to consent to personal jurisdiction).

145

See Ins. Corp. of Ir. v. Compagnie Des Bauxites De Guinee, 456 U.S. 694, 705 (1982).

146

See York v. Texas, 137 U.S. 15 (1890). “[S]ubmission refers to a party’s acceptance of the forum state’s adjudicative authority via some sort of affirmative act. Waiver, on the other hand, is the term used when a party does not object to personal jurisdiction when appearing in a lawsuit, thus waiving the right to pursue a personal jurisdiction defense.” Robin J. Effron & Aaron Simowitz, The Long Arm of Consent, N.Y.U. Ann. Surv. Am. L. (forthcoming 2024). Courts have often conflated the concepts of consent and waiver, in part because “[i]n the Pennoyer era, submission and waiver shared a common feature: they both involved a volitional act or omission that takes place at the time of litigation.” Id. Ex ante forms of consent to jurisdiction did not become permissible until later. See id.

147

Fuld, 82 F.4th at 88.

148

374 So.3d 515 (Miss. 2023).

149

Miss. Code Ann. § 79-4-15.05(b).

150

Id. § 79-35-15.

151

K&C Logistics, 374 So.3d at 527.

152

Tom James Co. v. Zurich Am. Ins. Co., 221 N.E.3d 1261, 1271 (Ind. Ct. App. 2023).

153

74 F.4th 66 (2d Cir. 2023), cert. denied, 2024 WL 71971 (2024).

154

Id. at 76

155

Id. at 74.

156

71 F.4th 1154 (9th Cir. 2023), cert. denied, 2024 WL 674875 (2024).

157

Id. at 1162 (internal quotation marks omitted).

158

Id.

159

Id. at 1164.

160

Id. at 1173 (Baker, J., dissenting in part).

161

80 F.4th 1079 (9th Cir. 2023).

162

Id. at 1089 (citing Davis, 71 F.4th at 1162).

163

Id.

164

Id. at 1090.

165

Id. at 1100 (VanDyke, J., dissenting).

166

Id. at 1090.

167

85 F.4th 429 (6th Cir. 2023).

168

Id. at 431.

169

465 U.S. 783 (1984).

170

571 U.S. 277 (2014).

171

Johnson, 85 F.4th at 433.

172

Id.

173

Id. at 435.

174

Id.

175

Id. at 437 (Cole, J., concurring).

176

537 P.3d 111 (Mont. 2023).

177

Id. at 116.

178

Id. at 117.

179

Id. at 125 (McKinnon, J., dissenting).

180

Id. at 132.

181

Id. at 124–25 (majority).

182

72 F.4th 1085 (9th Cir. 2023), cert. denied, 2024 WL 218786 (2024).

183

Id. at 1092–93.

184

87 F.4th 404 (9th Cir. 2023).

185

Id. at 420.

186

Id. at 420–21.

187

Id. at 421.

188

Id. at 422. Indeed, the Eighth Circuit rejected personal jurisdiction in a case where the defendant sold an allegedly copyright infringing online textbook to a purchaser in California through an interactive website. See Kendall Hunt Publ’g Co. v. Learning Tree Publ’g Corp., 74 F.4th 928, 931 (8th Cir. 2023) (noting that the defendant “maintains a nationally-available website through which an Iowa resident purchased the allegedly infringing work” but that this “conduct was not ‘uniquely or expressly aimed at’ Iowa”). The sale of a physical product into the forum state appears to be a paradigmatic case for specific jurisdiction, but sale of an online product to a forum state resident seems insufficient to support specific jurisdiction.

189

62 F.4th 587 (D.C. Cir. 2023).

190

During an earlier phase of the litigation, the district court dismissed the case on a finding that Mutond and Mwamba were entitled to foreign official immunity. The D.C. Circuit vacated that decision and remanded for further proceedings. See Lewis v. Mutond, 918 F.3d 142 (D.C. Cir. 2019).

191

Id. at 592.

192

Id. at 593.

193

Id. at 598 (Rao, J., concurring).

194

592 U.S. 351 (2021).

195

210 N.E.3d 393 (Mass. 2023).

196

Id. at 215.

197

Id. at 216.

198

79 F.4th 651 (6th Cir. 2023).

199

Id. at 672.

200

Id.

201

62 F.4th 496 (9th Cir. 2023).

202

Id. at 501–02.

203

Id. at 507.

204

676 S.W.3d 554, 576 (Tenn. 2023).

205

Id.

206

Id. at 577.

207

89 F.4th 238 (1st Cir. 2023).

208

Id. at 245.

209

Id. at 246.

210

Charles Schwab Corp. v. Bank of Am. Corp., 883 F.3d 68, 86 (2d Cir. 2018).

211

Id. at 87.

212

61 F.4th 242 (2d Cir. 2023), cert. denied, 2024 WL 156472 (2024).

213

Id. at 272.

214

67 F.4th 69, 76 (2d Cir. 2023), certified question accepted, 211 N.E.3d 92 (N.Y. 2023).

215

Id. at 76 (quoting New York v. Nat’l Serv. Indus., Inc., 460 F.3d 201, 209 (2d Cir. 2006) (Sotomayor, J.)).

216

70 F.4th 632 (2d Cir. 2023).

217

Id. at 645.

218

Wheelbarger v. Detroit Diesel ECM, LLC, 983 N.W.2d 134, 146 (Neb. 2023).

219

Id.

220

65 F.4th 547, 553 (10th Cir.), cert. denied, 144 S. Ct. 197 (2023).

221

Id.

222

Id. at 554.

223

60 F.4th 119 (4th Cir. 2023).

224

Id. at 137.

225

Id. at 136.

226

Id. at 137 (quoting Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 714 (3d Cir. 2004)).

227

Atl. Marine Constr. Co. v. U.S. Dist. Ct., 571 U.S. 49, 60 (2013).

228

76 F.4th 675 (7th Cir. 2023).

229

Id. at 681.

230

Id.

231

985 N.W.2d 466 (Iowa 2023).

232

424 U.S. 319 (1976).

233

339 U.S. 306 (1950).

234

Compare Ahmad Hamad Al Gosaibi & Bros. Co. v. Stand. Chartered Bank, 98 A.3d 998, 1007 (D.C. App. 2014) (holding that New York judgment recognizing Bahraini judgment was not entitled to full faith and credit); Reading & Bates Constr. Co. v. Baker Energy Res. Corp., 976 S.W.2d 702, 714–15 (Tex. Ct. App. 1998) (holding that Louisiana judgment recognizing Canadian judgment was not entitled to full faith and credit), with Alberta Sec. Comm’n v. Ryckman, No. N13J–02847, 2015 WL 2265473, at *8 (Del. Super. Ct. May 5, 2015) (holding that Arizona judgment recognizing Canadian judgment was entitled to full faith and credit), aff’d, 127 A.3d 399 (Del. 2015); Standard Chartered Bank v. Ahmad Hamad Al Gosaibi & Bros., 99 A.3d 936, 943–44 (Pa. Super. Ct. 2014) (holding that New York judgment recognizing Bahraini judgment was entitled to full faith and credit).

235

544 P.3d 301 (N.M. Ct. App. 2023).

236

59 F.4th 659 (4th Cir. 2023).

237

Id. at 665 (4th Cir. 2023) (quoting Am. Online, Inc. v. Nam Tai Elecs., Inc., 571 S.E.2d 128, 132 (Va. 2002)) (internal quotation marks removed).

238

Id. at 668 (4th Cir. 2023).

239

673 S.W.3d 57, 65 (Tex. Ct. App. 2023).

240

Id. at 66 (quoting Gutierrez v. Collins, 583 S.W.2d 312, 322 (Tex. 1979)).

241

58 F.4th 429, 472 (10th Cir. 2023).

242

For a compelling analysis of the recognition and enforcement of arbitral awards set aside at the seat of the arbitration, see Linda Silberman & Maxi Scherer, Forum Shopping and Post-Award Judgments, inForum Shopping in the International Commercial Arbitration Context 313, 329 (Franco Ferrari ed., 2013).

243

Compania de Inversiones Mercantiles, 58 F.4th at 470.

244

Id. at 472.

245

Id. A quicker way to the same conclusion would have been to note that the federal presumption against extraterritoriality does not apply to state statutes. SeeRestatement (Fourth) of U.S. Foreign Relations Law § 404 reporters’ n.5 (Am. L. Inst. 2018).

246

Id. at 475.

247

187 N.Y.S.3d 602 (2023).

248

Id. at 605 (2023); see In re Bernard L. Madoff Inv. Sec. LLC, 583 B.R. 829, 845–46 (S.D.N.Y. 2018).

Author notes

John F. Coyle, Reef C. Ivey II Distinguished Professor of Law, University of North Carolina School of Law. William S. Dodge, Martin Luther King, Jr. Professor of Law and John D. Ayer Chair in Business Law, University of California, Davis, School of Law. Aaron D. Simowitz, Associate Professor of Law, Willamette University College of Law. Many thanks to Lani Augustine and Noah Louri for excellent research assistance.

© The Author(s) [2024]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For commercial re-use, please contact [email protected] for reprints and translation rights for reprints. All other permissions can be obtained through our RightsLink service via the Permissions link on the article page on our site—for further information please contact [email protected].

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Article Contents

Choice of Law in the American Courts in 2023: Thirty-Seventh Annual Survey

Introduction

I. Choice of Law

A. Torts

1. Personal Injury and Wrongful Death

2. Insurance Bad Faith

3. Public Policy

4. Transfer Cases

B. Contracts

C. Other Subjects

1. Marriage and Divorce

2. Substance and Procedure

3. Statutes of Limitations

D. Extraterritorial Application of State Statutes

II. Party Autonomy

A. Choice-of-Law Clauses

1. Interpretation

2. Enforceability

a. Section 187

b. State Statutes

B. Forum Selection Clauses

1. Choice of Law

2. Interpretation

3. Enforceability

III. Federal Law

A. Extraterritorial Application of Federal Law

B. International Human Rights

C. Anti-Terrorism Act

D. Foreign Sovereign Immunities Act

IV. Adjudicative Jurisdiction

A. Personal Jurisdiction

1. Consent

2. Specific Jurisdiction

a. Purposefulness

i. Purposeful Availment vs. Purposeful Direction

ii. Online Activity

iii. Statutory Claims

b. Relatedness

3. Personal Jurisdiction and Multiple Parties

B. Forum Non Conveniens

C. Service of Process

V. Recognition and Enforcement of Judgments

A. Sister-State Judgment Recognition

B. Foreign-Country Judgment Recognition

C. Judgment Enforcement

Footnotes

Author notes

Citations

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