BMS Battlegrounds: Practical Advice for Litigating Personal Jurisdiction After Bristol-Myers

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June 04, 2018

Bristol-Myers Squibb Co. v. Superior Court signifies the culmination of the Supreme Court’s paradigm shift in personal jurisdiction jurisprudence. It marks the Court’s clearest statement yet that jurisdictional forum shopping and verdict chasing are disfavored, and that courts should carefully evaluate personal jurisdiction challenges to ensure fairness and predictability for defendants.

Notwithstanding the Supreme Court’s decree, plaintiffs’ counsel continue to try and chip away at BMS, given its potential impact on their previously tried-and-true strategies. And although most courts have recognized the paradigm shift, some courts, particularly at the trial level, have not. Defendants must accordingly remain diligent in litigating personal jurisdiction issues in lower courts, particularly those courts historically skeptical of such arguments, to ensure that the Supreme Court’s directives in Bristol-Myers are implemented nationwide. Among other actions, the paper encourages defendants to:

  • Urge judges to demand a connection between a defendant’s actions and the forum in question;
  • Support the equal application of BMS to mass torts and national class actions;
  • Resist “fishing expedition” requests for jurisdictional discovery; and
  • Move quickly to challenge improper venue claims in ongoing cases that pre-date BMS.