Exploring the Limits of Specific Personal Jurisdiction

During the nearly two decades since the Supreme Court recognized a bifurcated doctrine of personal jurisdiction, it has made little progress in defining the characteristics that distinguish general and specific jurisdiction. One of the issues that has repeatedly evaded the Court’s attention is the scope of specific jurisdiction. While we know that the scope of general jurisdiction extends to any suit brought against a defendant, and specific jurisdiction is limited to “suits” that arise out of the defendant’s contacts with the forum, the precise contours of specific jurisdiction remain unclear. In recognition of this theoretical deficiency, this article examines a particular category of cases - those involving jurisdictionally insufficient counts that arise out of the same factual event as jurisdictionally sufficient counts brought against the same defendant - to illuminate the theoretical question surrounding the scope of specific jurisdiction. The article concludes that in most instances there will be no constitutional or statutory impediment to the federal court’s exercise of pendent personal jurisdiction regarding jurisdictionally insufficient counts that arise out of the same constitutional case as a jurisdictionally sufficient anchor count, whether the basis for jurisdiction over the anchor count is a nationwide service of process statute or a state long-arm statute. Finding constitutional support for the exercise of pendent personal jurisdiction pursuant to the Due Process Clauses of the Fifth and Fourteenth Amendments, the article suggests that there is no constitutional limitation that would require federal or state courts to define specific jurisdiction narrowly according to particular legal theories supporting recovery. Rather, the Due Process Clauses in both the Fifth and Fourteenth Amendments support a broad interpretation of specific jurisdiction that would allow a federal or state court to adjudicate the entire constitutional case brought against a defendant

Exploring the Limits of Specific Personal Jurisdiction

During the nearly two decades since the Supreme Court recognized a bifurcated doctrine of personal jurisdiction, it has made little progress in defining the characteristics that distinguish general and specific jurisdiction. One of the issues that has repeatedly evaded the Court’s attention is the scope of specific jurisdiction. While we know that the scope of general jurisdiction extends to any suit brought against a defendant, and specific jurisdiction is limited to “suits” that arise out of the defendant’s contacts with the forum, the precise contours of specific jurisdiction remain unclear. In recognition of this theoretical deficiency, this article examines a particular category of cases - those involving jurisdictionally insufficient counts that arise out of the same factual event as jurisdictionally sufficient counts brought against the same defendant - to illuminate the theoretical question surrounding the scope of specific jurisdiction. The article concludes that in most instances there will be no constitutional or statutory impediment to the federal court’s exercise of pendent personal jurisdiction regarding jurisdictionally insufficient counts that arise out of the same constitutional case as a jurisdictionally sufficient anchor count, whether the basis for jurisdiction over the anchor count is a nationwide service of process statute or a state long-arm statute. Finding constitutional support for the exercise of pendent personal jurisdiction pursuant to the Due Process Clauses of the Fifth and Fourteenth Amendments, the article suggests that there is no constitutional limitation that would require federal or state courts to define specific jurisdiction narrowly according to particular legal theories supporting recovery. Rather, the Due Process Clauses in both the Fifth and Fourteenth Amendments support a broad interpretation of specific jurisdiction that would allow a federal or state court to adjudicate the entire constitutional case brought against a defendant

Hybrid Personal Jurisdiction: It’s Not General Jurisdiction or Specific Jurisdiction, But Is It Constitutional?

This Article suggests that specific and general personal jurisdiction are two discrete categories of jurisdiction, not merely the endpoints on a sliding scale. Although many factual scenarios fall neatly within one of these two jurisdictional categories, there are scenarios where some of the characteristics of each type of jurisdiction are present, but neither type is independently satisfied. This Article suggests an analytical framework to determine the constitutionality of exercising jurisdiction in such hybrid cases

Fair, Reasonable and Adequate According to Who? Cy Pres Distributions that Result in Cheap Settlements and Generous Attorney Fees, But No Financial Benefit to Class Members

In her recent article, Professor Rhonda Wasserman argues that class action settlements that distribute funds cy pres raise a very serious risk of prejudice to absent class members. The problem, she asserts, is the temptation for class counsel to sell out the interests of absent class members in exchange for a discounted settlement for the defendant and a generous fee for class counsel. To illustrate her concern, she cites the $9.5 million settlement in Lane v. Facebook that directed approximately$6.5 million to a nascent charity that was controlled -- at least partially -- by the defendant, $3 million to class counsel and nothing to the 3 million absent class members. Professor Wasserman argues that courts cannot have a laissez faire attitude toward protecting absent class members and she proposes a number of procedural reforms to ensure that cy pres distributions are only used when absolutely necessary. While her proposals are likely to provoke increased judicial scrutiny of cy pres distributions, the article stops short of addressing the principal question: when, if ever, is a settlement that distributes funds cy pres “fair, reasonable and adequate” to the absent class members? This Response addresses the principal question omitted from Professor Wasserman’s article and asserts that representations of counsel who are aligned in support of a proposed agreement and stand to gain from its approval are insufficient to find a proposed settlement agreement “fair, reasonable, and adequate.” Rather, Rule 23(e) demands that courts base a fairness finding upon objectively reliable evidence and this Response offers a proposal for how district courts may acquire such evidence

A View from Within the Fortune 500: An Empirical Study of Negative Value Class Actions and Deterrence

This paper takes a look inside the Fortune 500 to analyze the deterrent effect of negative value class actions. The study focuses on the relationship between litigation maturity and deterrence by testing three inter-related hypotheses: (1) Future liability is easier to anticipate when there is a well-developed record of the factual and legal issues from previous litigation than when there is no track record from previous litigation; (2) Corporations who have been held liable for particular conduct will successfully change their conduct to avoid future litigation regarding similar conduct; (3) Corporations who are informed about lawsuits filed against their competitors and who rely upon this information in making their own business decisions will successfully change their conduct to avoid subsequent similar litigation. The study presents compelling evidence to advance our understanding of deterrence and to answer the question that has plagued negative value class actions for nearly half a century: when, if ever, does the social utility of these actions outweigh their cost

Fees, Incentives, and Deterrence: A Reply to Professor Fitzpatrick

In his recent article, Protection of Investors in the Wake of the 2008-2009 Financial Crisis: Do Class Action Lawyers Make Too Little?, 158 U. Penn. L. Rev. 2043 (2010), Professor Brian Fitzpatrick asserts that the optimal award of fees to class action lawyers in small-stakes actions is 100% of the judgment. The premise of Fitzpatrick’s proposal is that deterrence is the sole purpose of small-stakes class actions and an increase in fees will incentivize lawyers to file more small-stakes class actions which in turn will result in more class awards and more deterrence. This paper addresses two fundamental questions relating to Fitzpatrick’s proposal: (1) how much more deterrence can we expect to derive from an increase in fees to class action lawyers?; and (2) what are the costs associated with a significant increase in small-stakes class actions? The paper suggests that the increase in deterrence may be far outweighed by the increase in cost associated with the proposal