General Jurisdiction After Daimler

In Daimler AG v. Bauman and Goodyear v. Brown, the Supreme Court held that corporations do not subject themselves to general--or "all purpose"--jurisdiction simply by conducting continuous business in a state.  Instead, a corporation's contacts with a state are only sufficient for general jurisdiction if they are so "constant and pervasive" as to render the corporation "essentially at home."  But Daimler and Goodyear left open some important questions about general jurisdiction--for example, whether a corporation that registers to do business and appoints an agent for service of process in a state consents to general jurisdiction there.

The U.S. Court of Appeals for the Federal Circuit is poised to decide that question in Acorda v. Mylan and AstraZeneca v. Mylan, two patent cases coming out of the District of Delaware.  As I've written about, personal jurisdiction is generally not an issue in patent infringement cases because defendants are usually subject to specific jurisdiction in the forum state (i.e., defendant sells the accused product in the forum state, and that contact gives rise to plaintiff's claim).  However, Acorda and AstraZeneca are pharmaceutical patent cases governed by the Hatch-Waxman Act, so the specific jurisdiction analysis is more complicated.  (For the record, I believe Mylan is subject to specific jurisdiction in Delaware in both of these cases, but the focus of this post is general jurisdiction).

The question in Acorda and AstraZeneca is whether, after Daimler, registering to do business in Delaware constitutes consent to general jurisdiction, as the Delaware Supreme Court decided long before Daimler.  See Sternberg v. O'Neil, 550 A.2d 1105 (Del. 1988).  The district judges split on the question; Judge Stark held in Acorda that Mylan consented to general jurisdiction, while Judge Sleet reached the opposite conclusion in AstraZeneca.  I agree with Judge Stark that Daimler did not "sub silentio, [] eliminate consent as a basis for jurisdiction."  In other words, Daimler addressed non-consensual submission to general jurisdiction through contacts, not through consent.   

The cases are currently being briefed at the Federal Circuit (which granted interlocutory review), and will likely be argued in the fall.