Supreme Court Debates Pennsylvania Law Opening Courts to Suits Against Companies

WASHINGTON — The Supreme Court struggled on Tuesday to decide whether Pennsylvania can require corporations to consent to being sued in its courts — by anyone, for conduct anywhere — as a condition of doing business in the state.

Only Pennsylvania has such a law. But if the court rules that it is constitutional, other states will most likely enact similar ones, giving injured consumers, workers and others more choices about where to sue and subjecting corporations to suits in courts they may view as hostile to business.

The case, Mallory v. Norfolk Southern Railway, No. 21-1168, was brought by Robert Mallory, a Virginia man who says he developed cancer from exposure to toxic chemicals while working in Virginia and Ohio for the Norfolk Southern Railway Company, which was based and incorporated in Virginia. The question in the case is whether he can sue in a third state with no concrete connection to the suit — Pennsylvania.

The Supreme Court has long said that corporations may be sued where they are incorporated or where their headquarters are. And they may be sued in particular cases if the plaintiff’s claims are related to the defendant’s contacts with the state.

Mr. Mallory relied on none of those bases for jurisdiction. Rather, he pointed to a Pennsylvania law that requires companies that do business in the state to consent to being sued there.

Carter G. Phillips, a lawyer for the railroad, said that putting his client to that choice was unconstitutional.

But Justice Neil M. Gorsuch said Norfolk Southern had made a conscious decision. “There’s no doubt the railroad understood by filing that piece of paper that it was subject to this law,” he said.

Justice Sonia Sotomayor said Norfolk Southern was particularly poorly situated to contest the jurisdiction of Pennsylvania’s courts.

“You had more miles of railroad track and more employees in Pennsylvania than any other state, even Virginia,” she told Mr. Phillips, citing information from a friend-of-the-court brief.

Mr. Phillips responded that “those facts are irrelevant to the proper outcome of this because that’s not the theory on which the plaintiff brought the case.”

Justice Samuel A. Alito said the court’s ruling on the Pennsylvania law would apply to all sorts of businesses.

“Norfolk Southern is a big corporation, and big corporations like that can litigate any place in the country,” he said. “So the practical consequences for them may not be so serious. But all corporations are not big entities.”

Ashley C. Keller, a lawyer for Mr. Mallory, said all corporations “have to make a choice: Are they willing to subject themselves to the general jurisdiction of the commonwealth’s courts or choose to forgo Pennsylvania’s market?”

The Biden administration filed a brief supporting the railroad, and Curtis E. Gannon, a lawyer for the federal government, argued on its behalf. Justice Elena Kagan, who served as U.S. solicitor general before joining the court, asked Mr. Gannon why he was there.

“What is it about this suit that has made you decide to participate?” she asked.
“In other words, what interests of the United States or dangers to the United States do you see at stake in this suit?”

Mr. Gannon pointed to “international concerns” and said a primary reason was “to make sure that the court’s decision here wouldn’t implicate the constitutionality of federal statutes.” The government’s brief discussed a federal law, for instance, that deemed the Palestine Liberation Organization to have consented to being sued in the United States.

Mr. Keller said the Pennsylvania law bore a resemblance to the take-it-or-leave-it contracts many businesses use to force consumers and workers into arbitration or require them to sue far from their homes.

“We make flesh-and-blood people honor their contracts to waive their rights to assert personal jurisdiction all the time with big companies like Norfolk Southern and Amazon and Apple,” he said.

Some of the justices seemed frustrated as the argument progressed and the lawyers struggled to define precisely what right the railroad had been required to waive.

“I’m just not very good at metaphysics,” Justice Clarence Thomas told Mr. Phillips.

The lawyer responded: “I’m not very good at physics either.”

Justice Thomas said that was a different matter. “I was good at physics,” he said. “It’s just metaphysics that were a problem.”


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