The Supreme Court’s recent decision in Mallory v. Norfolk Southern Railway Co. creates substantial uncertainty over whether companies that register to do business in certain states can be subject to personal jurisdiction for claims unrelated to the forum—because those states require consent to general jurisdiction as a condition of registration. Mallory involved a Pennsylvania law treating registration to do business “as a foreign corporation” as a “sufficient basis” for “general personal jurisdiction” over that corporation.

In a splintered set of opinions, the Supreme Court rejected a challenge to the law under the Due Process Clause. Five Justices agreed that—in this case—assertion of jurisdiction based on the Pennsylvania law was not unconstitutional as a matter of due process. But one of those five Justices (Justice Alito) indicated that the due process issue might be resolved differently under other facts. And Justice Alito strongly suggested in his concurrence that the dormant Commerce Clause might prohibit a state from requiring consent to general personal jurisdiction as a condition of doing business. The four dissenting Justices would have held that jurisdiction based on the law violates the Due Process Clause.

The Pennsylvania courts are likely to consider (at minimum) the dormant Commerce Clause challenge on remand. In the meantime, the fractured nature of the Court’s opinions—combined with the reality that, despite the result, five Justices have questioned the constitutionality of Pennsylvania’s requirement—ensures further litigation over so-called “consent-by-registration” jurisdictional statutes.

The underlying lawsuit

Mallory arose out of a lawsuit that Mallory filed in Pennsylvania state court under the Federal Employers’ Liability Act against his former employer, Norfolk Southern. Mallory alleged that he was exposed to carcinogens at work that caused him to develop cancer. But his claims had no ties to Pennsylvania. Although Mallory had briefly lived in Pennsylvania after leaving his job, he filed the suit after moving to Virginia. The alleged exposure to carcinogens was in Ohio and Virginia. And Norfolk Southern is both incorporated and headquartered in Virginia.

But, like many out-of-state corporations, Norfolk Southern was required to register to do business in Pennsylvania. In filing his lawsuit, Mallory argued that Pennsylvania courts could exercise personal jurisdiction over Norfolk Southern under the Pennsylvania law stating that registration “as a foreign corporation” is a “sufficient basis” for “general personal jurisdiction”—i.e., over “any cause of action.” 42 Pa. Cons. Stat. §§ 5301(a)(2)(i), (b).

The Pennsylvania Supreme Court agreed with Norfolk Southern that this consent-by-registration requirement violated the Due Process Clause of the Fourteenth Amendment. As a result, it did not reach Norfolk Southern’s alternative argument that the law also violates the dormant Commerce Clause.

The Supreme Court’s narrow majority decision

The U.S. Supreme Court then granted review and, by a 5-4 vote, held that allowing Pennsylvania to assert personal jurisdiction in this particular case did not violate the Due Process Clause. Justice Gorsuch wrote an opinion principally embodying the views of a four-Justice plurality and, in part, for the Court. Justices Thomas, Sotomayor, and Jackson joined Justice Gorsuch’s opinion in full, but Justice Alito joined only two parts of the opinion; those two parts formed the opinion of the Court.

The majority held that the case was controlled by a 1917 decision, Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Milling Co., which held that a Missouri law that required consent to jurisdiction as a condition of registration did not violate due process. The Pennsylvania Supreme Court had thought that Pennsylvania Fire had been “implicitly overturned” by later cases, such as International Shoe Co. v. Washington. But the majority explained that, even if so, the lower court still must follow the directly applicable case and leave it to the Supreme Court itself to declare that one of its decisions has been overruled.

The majority concluded that “[t]o decide this case, we need not speculate whether any other statutory scheme and set of facts would establish consent to suit. It is enough to acknowledge that the state law and facts before us fall squarely within Pennsylvania Fire’s rule.” Finally, the majority noted that the dormant Commerce Clause issue “remains for consideration on remand.”

The plurality opinion

The rest of Justice Gorsuch’s opinion was for a plurality of four—joined by Justices Thomas, Sotomayor, and Jackson. The plurality stated that Pennsylvania Fire remained good law even after International Shoe. In their view, International Shoe did not hold that due process limits general personal jurisdiction to places where a corporation is incorporated or has its principal place of business, but rather “stake[d] out an additional road to jurisdiction over out-of-state corporations” when the corporation “‘has not consented to suit in the forum.’” The plurality also emphasized the extent of Norfolk Southern’s operations in Pennsylvania as a reason why jurisdiction there wouldn’t offend “concerns with ‘fair play and substantial justice.’” And the plurality rejected Norfolk Southern’s argument that registration to do business didn’t amount to consent to general personal jurisdiction.

Justice Alito’s concurrence in part and concurrence in the judgment

Justice Alito, who did not join most of the plurality opinion, authored an opinion concurring in part and concurring in the judgment. Because his opinion is the narrowest and he supplied the crucial fifth vote to create a majority, his opinion is controlling.

Justice Alito agreed that Pennsylvania Fire precluded Norfolk Southern’s due process challenge to jurisdiction—but only under the narrow facts of the case before the Court. Specifically, Justice Alito emphasized that “[r]equiring Norfolk Southern to defend against Mallory’s suit in Pennsylvania . . . is not so deeply unfair that it violates the railroad’s right to due process” because “[t]he company has extensive operations in Pennsylvania; has availed itself of the Pennsylvania courts on countless occasions; and had clear notice that Pennsylvania considered its registration as consent to general jurisdiction.” As a result, Norfolk Southern’s “‘conduct and connection with [Pennsylvania] are such that [it] should reasonably anticipate being haled into court there.’” Justice Alito’s case-specific analysis focused heavily on the ties between Norfolk Southern and Pennsylvania; there is a strong possibility that, in the absence of such extensive ties, his due-process analysis may have come out the other way.

Moreover, that “is not the end of the story for registration-based jurisdiction,” according to Justice Alito. Instead, “there is a good prospect that Pennsylvania’s assertion of jurisdiction—over an out-of-state company in a suit brought by an out-of-state plaintiff on claims wholly unrelated to Pennsylvania—violates the Commerce Clause.” Justice Alito suggested that “Pennsylvania’s registration-based jurisdiction law discriminates against out-of-state companies” by “forcing them to increase their exposure to suits on all claims in order to access Pennsylvania’s market while Pennsylvania companies generally face no reciprocal burden for expanding operations into another State.” And “at the very least, the law imposes a ‘significant burden’ on interstate commerce[.]” Justice Alito worried that smaller companies would be especially harmed by the unpredictable effect of Pennsylvania’s assertion of jurisdiction over unrelated suits. And he noted that he was “hard-pressed to identify any legitimate local interest that is advanced by” this assertion of general personal jurisdiction. Because the Pennsylvania courts had decided the case based solely on the Due Process Clause and had not ruled on Norfolk Southern’s dormant Commerce Clause challenge, Justice Alito agreed that the case should be remanded so that the lower courts could consider that challenge in the first instance.

Justice Jackson’s concurrence

Justice Jackson, who also joined the plurality decision, agreed in her concurrence that Pennsylvania Fire resolved the case, although she would have also found another case, Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, “particularly instructive,” because it approves of waiver of personal jurisdiction rights.

The dissent

Justice Barrett dissented in an opinion joined by Chief Justice Roberts and Justices Kagan and Kavanaugh. The dissenters warned that the majority’s approach, which upheld jurisdiction “based on implied ‘consent’—not contacts,” effectively abrogates the “traditional contacts-based approach to jurisdiction” that has been dominant since International Shoe. They asserted that registration-based jurisdiction isn’t really based on consent; for example, they noted that the Pennsylvania law had separate provisions for jurisdiction based on registration and jurisdiction based on consent, which would be unnecessary if registration were a matter of consent. The dissent expressed the further concern that the registration-by-consent approach “short-circuits” the Court’s general jurisdiction precedents, which had held that “‘in-state business … does not suffice to permit the assertion of general jurisdiction over claims … that are unrelated to any activity occurring in [the State]” (quoting BNSF Ry. Co. v. Tyrell (in turn citing Daimler AG v. Bauman and Goodyear Dunlop Tires Operations, S.A. v. Brown). The dissenters also observed the registration-based jurisdiction is also “neither ‘firmly approved by tradition’ nor ‘still favored,’” as “Pennsylvania is the only State with” a registration-based jurisdiction law. For these reasons, the dissenters would have held that Pennsylvania Fire was abrogated. And they would in any event have distinguished it, explaining that the corporation in Pennsylvania Fire truly consented to jurisdiction in Missouri as part of the registration process. By contrast, the Pennsylvania registration process at issue in Mallory never informs companies that registration means consenting to jurisdiction.


The Court’s fractured decision in Mallory is certain to lead to further litigation over personal jurisdiction. Plaintiffs’ lawyers will be incentivized to file lawsuits in Pennsylvania state courts regardless of whether the claims have any connection to the state. Recognizing the reality of “forum shopping,” Justice Alito described Philadelphia courts as a “venue that is reputed to be especially favorable to tort plaintiffs.”

Other states may be pressed by the plaintiffs’ bar to adopt statutes like Pennsylvania’s registration-based jurisdiction law.

Not all plaintiffs will be patient enough to wait for those laws. Some can be expected to argue that existing registration statutes already have that effect—not matter how strained the interpretation of the statute is required. Other plaintiffs will mischaracterize Justice Alito’s controlling opinion (or deny that it is controlling) in an effort to avoid his conclusion that due process is not automatically satisfied every time registration-based jurisdiction is asserted—for instance, if the defendant lacks the deep ties to the forum state that Justice Alito emphasized were present in Mallory. And the fact that the Mallory court remanded the case for consideration of Norfolk Southern’s dormant Commerce Clause challenge—which may ultimately return to the Supreme Court—means that the viability of these assertions of registration-based jurisdiction may be uncertain for some time.

Defendants facing these arguments should remain alert to these issues and be sure to raise and preserve objections to personal jurisdiction. For example:

  • When properly construed, many state laws do not in fact condition registration on consent to personal jurisdiction—that is what the New York Court of Appeals recently held, for example.
  • Registration-based jurisdiction over unrelated suits might violate state constitutional limitations.
  • Under Justice Alito’s controlling opinion, there is a substantial argument that registration-based jurisdiction over unrelated suits still contravenes the limits of the Due Process Clause of the U.S. Constitution if the defendant lacks additional deep and longstanding connections to the forum state.
  • Mallory fully leaves open the argument that such assertions of jurisdiction contravene dormant Commerce Clause limits, as Justice Alito elaborates in his concurrence. Defendants should be prepared to argue that consent-by-registration statutes violate the dormant Commerce Clause’s “antidiscrimination” and “undue burden” principles that the Supreme Court (again with a fractured lineup) discussed earlier this term in National Pork Producers Council v. Ross. Both on their face and in practical effect, such statutes discriminate against out-of-state corporations by forcing them to consent to general personal jurisdiction that otherwise wouldn’t exist as a condition of doing business in the state. Defendants also should consider arguing, in Justice Alito’s words, that such laws “impose[] a ‘significant burden’ on interstate commerce” without “advanc[ing] a ‘legitimate local interest’” and, in addition, do not have local benefits that “could overcome the serious burdens on interstate commerce that [such a law] imposes.”

In addition, companies should consider whether to add forum-selection clauses to their contracts where possible or update existing clauses. Such clauses may allow companies to contract out of a consent-by-registration regime through the vehicle of contractual consent to more predictable forums.

No matter what, one thing is clear: Mallory is not the last word on whether consent-by-registration will take root as a means of forcing corporations to submit to forums that have no connection to the claims in a lawsuit.