Monday, April 22, 2013
Some early blog and twitter chatter casts the Supreme Court’s cert grant in DaimlerChrysler AG v. Bauman as a sequel to last week’s Kiobel decision on the Alien Tort Statute (ATS). Although Daimler is an ATS case, the Court does not seem poised to revisit its test (such as it is) for extraterritorial application of the ATS. The question presented in Daimler is about personal jurisdiction in general—actually, it’s about general personal jurisdiction in general. According to the defendant’s petition for certiorari, “[t]he question presented is whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum State.”
This question calls to mind an issue from the Court’s 2011 Goodyear decision—one that Justice Ginsburg’s unanimous opinion acknowledged but did not address. The petitioners in Goodyear were foreign subsidiaries of an American parent company, and they objected to personal jurisdiction in North Carolina state court. Here’s an excerpt from the end of the Court’s opinion [131 S. Ct. at 2857]:
Respondents belatedly assert a “single enterprise” theory, asking us to consolidate petitioners' ties to North Carolina with those of Goodyear USA and other Goodyear entities. See Brief for Respondents 44–50. In effect, respondents would have us pierce Goodyear corporate veils, at least for jurisdictional purposes. See Brilmayer & Paisley, Personal Jurisdiction and Substantive Legal Relations: Corporations, Conspiracies, and Agency, 74 Cal. L. Rev. 1, 14, 29–30 (1986) (merging parent and subsidiary for jurisdictional purposes requires an inquiry “comparable to the corporate law question of piercing the corporate veil”). But see 199 N.C.App., at 64, 681 S.E.2d, at 392 (North Carolina Court of Appeals understood that petitioners are “separate corporate entities ... not directly responsible for the presence in North Carolina of tires that they had manufactured”). Neither below nor in their brief in opposition to the petition for certiorari did respondents urge disregard of petitioners' discrete status as subsidiaries and treatment of all Goodyear entities as a “unitary business,” so that jurisdiction over the parent would draw in the subsidiaries as well.
One caveat, of course, is that the Supreme Court’s ultimate decisions do not always hew closely to the precise questions for which it has granted certiorari. But if the Court’s concern in Daimler is the extraterritorial application of the ATS, I suspect it would have GVR’d the case for reconsideration in light of Kiobel—as it did today with another Ninth Circuit ATS case (Rio Tinto v. Sarei).