U.S. Supreme Court to Determine Whether Jurisdiction Over Consent by Recording Is Constitutional – Aviation


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Edward J. Sholinsky1Philadelphia Cream [email protected]

The United States Supreme Court granted certiorari in Mallory v Norfolk Southern Railway Co. to resolve the question of whether the due process clause of the Fourteenth Amendment prohibits a state from requiring that a corporation consent to personal jurisdiction to do business in the state.
2 Simply put, the issue is whether Norfolk Southern voluntarily consented to general Pennsylvania jurisdiction when it registered to do business there as a foreign corporation.

The Court will review the Pennsylvania Supreme Court’s decision that the Pennsylvania statute subjecting a foreign company registering to do business there to general jurisdiction is unconstitutional. The Pennsylvania Supreme Court ruled that Norfolk Southern did not voluntarily consent to general personal jurisdiction by registering to do business in Pennsylvania. On the contrary, the Court held that subjecting Norfolk Southern to general jurisdiction without voluntary consent unconstitutionally violated its due process rights. According to the Court, consent requires that the right to freedom of due process be “voluntarily, knowingly and intelligently waived”.

The petitioner argued in his petition to the United States Supreme Court that the Pennsylvania Supreme Court misinterpreted “consent” because Norfolk Southern knew that consent to general jurisdiction was a prerequisite for doing business. in Pennsylvania. Accordingly, the claimant argued the general analysis of jurisdiction in Happy new year and Daimlerwere irrelevant.

Norfolk Southern responded that consent by registration would conflict with Happy new year and Daimler by subjecting foreign corporations to universal jurisdiction simply because they carried on business in Pennsylvania. Norfolk Southern argued that there is no voluntary consent when the only options are to submit to general jurisdiction, cease operations in Pennsylvania, or waive the right to sue in Pennsylvania courts.

The United States Supreme Court has established a schedule of briefings. The petitioner’s memorandum on merit is expected on July 5th. We will continue to report on the outcome and any other relevant events in the case. In addition, we will continue to monitor whether the Supreme Court will grant certiorari in Cooper Tire & Rubber Co. v. McCalla similar, but less clear, case on appeal from the Supreme Court of Georgia.


1. Taylor Horn, summer partner at Schnader and 2L rising at Temple Law, provided invaluable assistance with this article.

2. The Aviation group previously reported on the
Mallory decision in our December 24, 2021 Client Alert: “Pennsylvania Supreme Court Says Requiring Consent to Personal Jurisdiction to Do Business in Pennsylvania Violates Due Process,” as well as the Spring 2022 edition of Aviation Happenings: “Plaintiffs are trying to find loopholes in Landmark Mallory Decision.”

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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