As expected, defendants named in putative multi-state class actions have argued in various cases that the U.S. Supreme Court’s decision in Bristol-Myers Squibb v. Superior Court, 137 S.Ct. 1773 (2017) effectively precludes the certification of multi-state classes, as (so the argument goes) the Court would have to have personal jurisdiction over each defendant with respect to the claims of each and every putative classmember.
The U.S. Seventh Circuit has rejected this.
“Before the Supreme Court’s decision in Bristol-Myers, there was a general consensus that due process principles did not prohibit a plaintiff from seeking to represent a nationwide class in federal court, even if the federal court did not have general jurisdiction over the defendant…. The Supreme Court has regularly entertained cases involving nationwide classes where the plaintiff relied on specific, rather than general, personal jurisdiction in the trial court, without any comment about the supposed jurisdictional problem IQVIA raises…. The proper characterization of the status of absent class members depends on the issue. As the Supreme Court recognized in Devlin v. Scardelletti, 536 U.S. 1 (2002), ‘nonnamed class members … may be parties for some purposes and not for others. The label ‘party’ does not indicate an absolute characteristic, but rather a conclusion about the applicability of various procedural rules that may differ based on context.’ …. We see no reason why personal jurisdiction should be treated any differently from subject-matter jurisdiction and venue: the named representatives must be able to demonstrate either general or specific personal jurisdiction, but the unnamed class members are not required to do so.”
In a somewhat similar, but distinguishable, decision, the Court of Appeals for the District of Columbia Circuit held that, in the absence of a class certification order, putative class members are not parties before a court, rendering the defendant’s motion to dismiss all nonresident putative class members for lack of personal jurisdiction premature.
Initially, the Court finds significant that the U.S. Supreme Court in Bristol-Myers Squibb “carefully limited its holding: ‘since our decision concerns the due process limits on the exercise of specific jurisdiction by a State, we leave open the question whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court.’ Justice Sotomayor, dissenting, further explained that ‘the Court today does not confront whether its opinion here would also apply to a class action in which a plaintiff injured in the forum State seeks to represent a nationwide class of plaintiffs, not all of whom were injured there.’”
In certified class actions, the Court goes on to explain, unnamed class members may be parties for some purposes and not for others. “By contrast, putative class members – at issue in this case – are always treated as nonparties…. Putative class members become parties to an action – and thus subject to dismissal – only after class certification. It is class certification that brings unnamed class members into the action and triggers due process limitations on a court’s exercise of personal jurisdiction over their claims….
“Because the class in this case has yet to be certified, Whole Foods’ motion to dismiss the putative class members is premature. Only after the putative class members are added to the action – that is, when the action is certified as a class under Rule 23 – should the district court entertain Whole Foods’s motion to dismiss the nonnamed class members.”
Mussat v. IQVIA, 953 F.3d 441 (7th Cir. 2020); and,
Molock v. Whole Foods Market Group, 952 F.3d 293 (D.C. Cir. 2020).