An Illinois physician received two unsolicited faxes from IQVIA, a Delaware corporation with its headquarters in Pennsylvania, which failed to include the opt-out notice required by Federal statute. A putative class action was brought in the Northern District of Illinois under the TCPA on behalf of plaintiff and all persons in the country who had received similar junk faxes from IQVIA in the four previous years. The Defendant moved to strike the class definition, arguing that the district court did not have personal jurisdiction over the non-Illinois members of the proposed nationwide class under the Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court, 137 S.Ct. 1773 (2017). Because IQVIA is not subject to general jurisdiction in Illinois, the district court turned to specific jurisdiction, and granted the Defndant’s motion to strike. The U.S. Seventh Circuit Court of Appeals granted Plaintiff’s petition to appeal under Rule 23(f), and reversed:

“Procedural formalities matter” the Seventh Circuit noted, “as the Supreme Court emphasized in Taylor v. Sturgell, 553 U.S. 880 (2008), where it stressed the importance of class certification as a prerequisite for binding a nonparty (including an unnamed class member) to the outcome of a suit. With that in mind, it rejected the notion of ‘virtual representation’ as an end-run around the careful procedural protections outlined in Rule 23. Class actions, in short, are different from many other types of aggregate litigation, and that difference matters in numerous ways for the unnamed members of the class.

“Bristol-Myers neither reached nor resolved the question whether, in a Rule 23 class action, each unnamed member of the class must separately establish specific personal jurisdiction over a defendant. In holding otherwise, the district court failed to recognize the critical distinction between this case and Bristol-Myers. The Bristol-Myers plaintiffs brought a coordinated mass action, which does not involve any absentee litigants. In a section 404 case, all of the plaintiffs are named parties to the case. The statute allows the trial court to consolidate their cases for resolution of shared legal issues before moving on to individual issues. In a Rule 23 class action, by contrast, the lead plaintiffs earn the right to represent the interests of absent class members by satisfying all four criteria of Rule 23(a) and one branch of Rule 23(b). The absent class members are not full parties to the case for many purposes.

“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….

“Aside from the fact that IQVIA’s position is in tension with Federal Rule of Civil Procedure 82, which stipulates that the rules do not extend or limit the jurisdiction of the district courts or the venue of actions in those courts, there is a simpler problem with it: IQVIA is mixing up the concepts of service and jurisdiction. Rule 4(k) addresses how and where to serve process; it does not specify on whom process must be served. It is true that, with certain exceptions, a federal district court has personal jurisdiction only over a party who would be subject to the jurisdiction of the state court where the federal district court is located. But, as discussed above, a district court need not have personal jurisdiction over the claims of absent class members at all. The rules permit a variety of representatives to sue in their own names: an executor, an administrator, a guardian, and a trustee, to name a few. See Rule 17(a)(1). If any of those is a defendant, the court will assess personal jurisdiction with respect to that person, not with respect to the person being represented. So, too, with class actions: if the court has personal jurisdiction over the defendant with respect to the class representative’s claim, the case may proceed. Nothing in the Federal Rules governing service of process contradicts this.

“The rules for class certification support a focus on the named representative for purposes of personal jurisdiction. Rule 23(b)(3), for example, governs damages class actions. Among the factors it lists is the desirability or undesirability of concentrating the litigation of the claims in the particular forum. The Committee Note to this provision mentions that a court should consider the desirability of the forum in contrast to allowing the claims to be litigated separately in forums to which they would ordinarily be brought. These provisions recognize that a class action may extend beyond the boundaries of the state where the lead plaintiff brings the case. And nothing in the Rules frowns on nationwide class actions, even in a forum where the defendant is not subject to general jurisdiction.”

 

Mussat v. IQVIA, 953 F.3d 441 (7^th Cir. 2020).