Consent to General Personal Jurisdiction

The last time I was a guest blogger, I wrote about a pair of patent cases decided by the U.S. District Court for the District of Delaware raising an important question about general personal jurisdiction--namely, whether a corporation can consent to general jurisdiction in Delaware by registering to do business and appointing an agent for service of process there.  In Acorda v. Mylan, Judge Stark relied on the U.S. Supreme Court's decision in Pennsylvania Fire Ins. Co. v. Gold Issue Mining & Milling Co. (1917) and the Delaware Supreme Court's decision in Sternberg v. O'Neil (1988) to hold that registering to do business in Delaware constitutes consent to general jurisdiction.  In AstraZeneca v. Mylan, on the other hand, Judge Sleet refused to follow Pennsylvania Fire and Sternberg based on the U.S. Supreme Court's 2014 decision in Daimler AG v. Bauman, which rejected a "doing business" theory of general jurisdiction and held that corporations are only subject to general jurisdiction where they are "essentially at home." 

The U.S. Court of Appeals for the Federal Circuit recently issued its decision in Acorda and AstraZeneca.  Rather than resolving this split, however, the majority sidestepped the general jurisdiction question and held that Mylan is subject to specific jurisdiction in Delaware instead.  (The specific jurisdiction analysis also raises some interesting questions, which I plan to discuss in a later post.)  In a concurrence, Judge O'Malley argued that the court should decide the case on general jurisdiction grounds, which she believed was a more straightforward analysis than specific jurisdiction.  Much like Judge Stark and an amicus brief in which I participated, Judge O'Malley reasoned that Daimler--which addressed general jurisdiction based on a corporation's contacts--did not overrule Pennsylvania Fire and Sternberg--which addressed the question of general jurisdiction based on consent.

The panel's decision in Acorda and AstraZeneca may not be the last word in these cases.  Mylan has indicated that it plans to seek panel and en banc rehearing at the Federal Circuit.  Moreover, the fact that the parties are represented by Ted Olson, Paul Clement, and Kannon Shanmugam suggests that this case may end up at the Supreme Court.  Whatever happens in Acorda and AstraZeneca, the general jurisdiction question will have to be resolved sometime soon.  In an interesting turn of events, just a few weeks after the Federal Circuit issued its opinion, the Delaware Supreme Court decided Genuine Parts Co. v. Cepec, which overruled Sternberg in light of Daimler.  In dissent, Justice Vaughn aptly stated that "[i]t may be that the United States Supreme Court will go in the same direction as the Majority.  But we won't know until it gets there."