In the wake of the U.S. Supreme Court’s decision in Spokeo v. Robins, 136 S. Ct. 1540 (2016), there has been a plethora of litigation in privacy class actions over whether federal courts can exercise subject-matter jurisdiction over the asserted statutory or common law claims. However, in addition to considering whether a court has subject-matter jurisdiction, entities hit with a putative privacy class action should also consider whether the court can exercise personal jurisdiction over the parties and claims.

There are two types of personal jurisdiction: general and specific. Over the course of the last decade, the U.S. Supreme Court has limited the forums in which a court can exercise general – or all purpose – jurisdiction over a defendant. In most cases, those forums will be only an entity’s state of incorporation and principal place of business. The result has been an increased focus on whether courts have specific – or case-linked – jurisdiction. Now, entities – even those that conduct business in all 50 states – may be able to successfully bring a motion to dismiss for lack of personal jurisdiction where the entity’s contacts with the forum did not give rise to the claims against it.

In addition, the Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 137 S. Ct. 1773 (2017) (Bristol-Myers) opened the door to an additional use of the lack of personal jurisdiction defense in nationwide privacy class actions. Relying on Bristol-Myers, several district courts have permitted entities hit with nationwide class actions to limit the putative class where the absent class members’ claims did not arise from the entity’s contacts with the forum state.

Continue Reading Asserting the defense of lack of personal jurisdiction in privacy class actions