Daimler and Bristol-Meyers: What’s Next for Personal Judicial Jurisdiction in the United States?

In this article, “Daimler and Bristol-Myers: What’s Next for Personal Judicial Jurisdiction in the United States?”, (which was published in “US Litigation Today: Still a Threat for European Businesses of Just a Paper Tiger?” (Schulthess 2018) (eds. Bonomi/Schefer)), Professor Silberman details the new challenges arising from the Supreme Court’s most recent jurisdiction decisions. She explains the dramatic change in U.S. general jurisdiction resulting from the Supreme Court’s 2014 decision in Daimler AG v. Bauman and its impact on obtaining jurisdiction over foreign country defendants, in particular foreign banks. She explains how the use of specific jurisdiction might mitigate the effect of Daimler and provides recent examples where specific jurisdiction has been invoked to obtain jurisdiction when general jurisdiction has failed. She then discusses the Supreme Court’s 2017 decision in Bristol-Myers Squibb v. Superior Court, where the Supreme Court addressed the parameters of specific jurisdiction and emphasized the necessity of maintaining a sharp divide between general and specific jurisdiction, potentially restricting specific jurisdiction in some of those cases. Professor Silberman also highlights how the two Supreme Court cases together affect cases involving multiple parties and she highlights the impact of Bristol-Myers in federal nationwide class action litigation. With particular attention to issues in transnational litigation, Professor Silberman also discusses recent developments where the lower courts have applied the Daimler rule to the issue recognition and enforcement of foreign country judgments in the U.S. and to attempts to obtain discovery against foreign defendants in both merits and enforcement proceedings.