NOTE KEEPING CORPORATIONS IN THE COURTS: A FRAMEWORK FOR ADDRESSING JURISDICTION OVER CORPORATE DEFENDANTS IN CLASS ACTION LITIGATION Alexander H. Sugerman* I. INTRODUCTION............................................................. 978 II. BMS and the Narrowing of Personal Jurisdiction ......... 979 A. The Narrowing of Personal Jurisdiction ............... 980 B. BMS’s Applicability to Class Actions .................... 982 III. The Implications of Applying BMS to Class Actions .... 986 A. The Importance of Class Actions in Corporate Accountability ...................................................... 986 1. The Importance of Private Litigation in Corporate Regulation ..................................... 986 2. The Class Action Form and Corporate Accountability ................................................. 988 B. The Insufficiency of General Jurisdiction ............. 991 1. Potential Lack of a Forum at All ..................... 992 2. Incentives to Create Defendant-Friendly Jurisdictions ................................................... 993 C. The Insufficiency of MDL as an Alternative Solution ............................................................................. 995 1. MDL’s Built-In Limitations ............................. 995 2. Resulting Problems with MDL ........................ 996 IV. Proposed Solution .......................................................... 998 *J.D. Candidate 2024, Columbia Law School; B.M. 2015, New York Univer- sity. I would like to thank Thomas Schmidt for his invaluable input and feedback throughout the process of writing this Note. I would also like to thank the board and staff of the Columbia Business Law Review for editing the piece. 978 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 A. Why Impute? ......................................................... 998 1. The Justifications for Personal Jurisdiction ... 999 2. The Requirements of Class Certification ...... 1000 3. The Merits of Imputation .............................. 1000 i. The Burden on the Defendant................... 1001 ii. The Forum State’s Interest in Adjudicating the Dispute ............................................. 1002 iii. The Plaintiff’s Interest in Obtaining Convenient and Effective Relief ............. 1002 iv. The Interstate Judicial System’s Interest in Obtaining the Most Efficient Resolution of Controversies .......................................... 1003 v. The Shared Interest of the Several States in Furthering Fundamental Substantive Social Policies .................................................... 1004 B. Possible Methods of Imputation .......................... 1005 1. Rule 23 ........................................................... 1006 2. Judicial Opinions ........................................... 1009 i. Pendent Personal Jurisdiction .................. 1009 ii. Ford’s “Relate To” ..................................... 1011 C. Just Corporations or All Defendants? ................. 1014 I. INTRODUCTION In a series of recent cases, the Supreme Court has made it significantly more difficult for plaintiffs to seek legal redress against corporations by limiting the power of courts to exer- cise personal jurisdiction over corporate defendants. Begin- ning in 2011, the Supreme Court limited the inquiry around where a corporation might be subject to general, all-purpose jurisdiction for claims against it.1 Then, in 2017, in Bristol- Myers Squibb v. Superior Court of California (“BMS”), the Court constrained the ability of plaintiffs to join together to sue a corporation when those plaintiffs were harmed by the 1 See Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 929–30 (2011). No. 2] KEEPING CORPORATIONS IN THE COURTS 979 corporation in different states.2 Importantly, these decisions left open whether these jurisdictional constraints apply to class actions. This Note argues that because of the important role that class actions play in corporate accountability, it is essential that these limitations not be extended to the class action form. In summary, if the Rule 23 class action certification criteria are met and if the court has jurisdiction over the defendant with respect to class representatives’ claims under current per- sonal jurisdiction doctrine, then the court should impute ju- risdiction over that defendant with respect to the claims of class members. Part II of the Note details the scope of the aforementioned string of cases and discusses the scholarly, ju- dicial, and popular responses to the potential applicability of BMS to class actions. Part III identifies the problems with ap- plying BMS to class actions, focusing on the importance of pri- vate enforcement in maintaining corporate accountability and the essential role that the class action form plays in that pro- cess. Finally, Part IV considers the legal, policy, and norma- tive considerations associated with limiting the scope of BMS and proposes solutions for how to limit BMS in the class action context. II. BMS AND THE NARROWING OF PERSONAL JURISDICTION Over the past twelve years, the Supreme Court has limited personal jurisdiction in two doctrinal contexts. First, it nar- rowed courts’ ability to exercise personal jurisdiction over de- fendants under a theory of general jurisdiction.3 Second, the Court limited the ability for courts to exercise jurisdiction 2 Bristol-Myers Squibb Co. v. Superior Ct. of Cal., 588 U.S. 255, 265 (2017). 3 General jurisdiction, or all-purpose jurisdiction, allows a court to ex- ercise jurisdiction over a defendant for any claim against that defendant, whether or not directly related to the defendant’s contacts with the forum, by virtue of the defendant’s significant presence there. See Arthur T. von Mehren & Donald T. Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 HARV. L. REV. 1121, 1136–37 (1966). 980 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 under the other theory of jurisdiction, specific jurisdiction.4 These jurisdictional limitations culminated in Bristol-Myers Squibb v. Superior Court of California, which significantly constrained the ability of plaintiffs to join together in a mass action against a corporate defendant.5 BMS left open whether its jurisdictional constraints would apply to class actions,6 but soon after the opinion was issued, the legal commentariat began contemplating the likelihood that it would. District courts are far from uniform in their ap- plication of BMS to class actions, and only a minority of Courts of Appeals has addressed the issue. As the Supreme Court has not yet taken up the issue directly, the extent to which BMS applies to class actions remains doctrinally unset- tled. A. The Narrowing of Personal Jurisdiction The Court’s limitation on general jurisdiction began in 2011. Until then, when analyzing whether a defendant was subject to general jurisdiction, a court would assess whether a defendant’s contacts with the forum were “continuous and systematic.”7 However, in 2011, in Goodyear Dunlop Tires Op- erations. S.A. v. Brown, the Supreme Court limited the “con- tinuous and systematic” inquiry by holding that general 4 Specific jurisdiction allows courts to exercise jurisdiction over claims against a defendant that are related to that defendant’s contacts with the state, even if those contacts themselves do not rise to a sufficient level to meet a general-jurisdiction standard. See generally Int’l Shoe Co. v. Wash- ington, 326 U.S. 310 (1945). 5 See Bristol-Myers Squibb Co., 588 U.S. at 265. 6 Id. at 278 n.4. 7 See Daniel Wilf-Townsend, Class Action Boundaries, 90 FORDHAM L. REV. 1611, 1619 (“For the first sixty-plus years after International Shoe, courts throughout the country had interpreted that case’s ‘continuous and systematic’ standard for general jurisdiction to mean that such jurisdiction was available over a defendant in any state where it had substantial long- term operations.”); Maggie Gardner, Pamela K. Bookman, Andrew Bradt, Zachary Clopton & D. Theodore Rave, The False Promise of General Juris- diction, 73 ALA. L. REV. 455, 457 (2022) (“Before 2011, plaintiffs could rely on general ‘doing business’ jurisdiction to establish personal jurisdiction over corporations that target their conducts towards every state.”). No. 2] KEEPING CORPORATIONS IN THE COURTS 981 jurisdiction can be found only where a corporation can be deemed to be “essentially at home.”8 Three years later, in Daimler AG v. Bauman, the Court affirmed that, for a corpo- rate defendant, this language refers almost exclusively to the corporation’s place of incorporation or its principal place of business.9 The result of these two cases is that, in determining whether it has general personal jurisdiction over a corporate defendant, a federal court must now limit its inquiry to whether the forum in question is that corporation’s place of incorporation or principal place of business, and not whether the corporation’s significant business presence in the forum meets the “continuous and systematic” standard.10 This limitation on general jurisdiction increased plaintiffs’ reliance on specific jurisdiction as the sole way to bring claims against a defendant in any forum that did not fall into the newly limited conception of where the defendant was “at home.”11 However, soon after Goodyear and Daimler, the Court proceeded to limit the ability for courts to exercise spe- cific personal jurisdiction over corporate defendants. Three years after Daimler, in Bristol-Myers Squibb Co. v. Superior Court of California, nearly 700 plaintiffs joined together to sue Bristol-Myers Squibb in a California state court for injuries resulting from a single drug.12 However, of these nearly 700 8 Goodyear Dunlop Tires Operations S.A. v. Brown, 564 U.S. 916, 919 (2011). 9 Daimler AG v. Bauman, 571 U.S. 117, 137–39 (2014). In fact, the Court describes the possibility of exercising general jurisdiction in a forum that is not the corporation’s place of incorporation nor its principal place of business as “an exceptional case.” Id. at 139 n.19. 10 See Kevin D. Benish, Pennoyer’s Ghost: Consent, Registration Stat- utes, and General Jurisdiction After Daimler AG v. Bauman, 90 N.Y.U. L. REV. 1609, 1610 (2015) (“Daimler limited general jurisdiction under the Due Process Clause to a defendant corporation’s principal place of business or place of incorporation. In doing so, longstanding bases of personal jurisdic- tion in the United States have been eliminated[.]”). 11 Harv. L. Rev., Personal Jurisdiction—General Jurisdiction—Daim- ler A.G. v. Bauman, 128 HARV. L. REV. 311, 318 (2014). 12 See Bristol-Myers Squibb Co. v. Superior Ct. of Cal., 582 U.S. 255, 259 (2017). It is worth noting that, prior to Goodyear and Daimler, a case like BMS almost certainly would have not come about because nobody would have thought to question Bristol-Myers Squibb’s susceptibility to 982 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 plaintiffs, close to 600 purchased the drug and suffered their injuries outside of California.13 Despite the defendant’s exten- sive contacts with state, the Court refused to find jurisdiction over the claims of the plaintiffs who purchased and consumed the drug outside of the forum state.14 Now, as a result of BMS’s limitation on specific jurisdiction, plaintiffs asserting factually identical claims cannot join together in one state to litigate their claims efficiently if some of those plaintiffs’ claims do not relate to the defendant’s contacts with the de- sired forum state. B. BMS’s Applicability to Class Actions BMS was a mass action, not a formal class action under Rule 23 of the Federal Rules of Civil Procedure. In its opinion, the Supreme Court left open the holding’s applicability to class actions. Justice Sotomayor, in dissent, expressed con- cern that the majority’s limitations on specific jurisdiction might “also apply to a class action in which a plaintiff injured in the forum States seeks to represent a nationwide class of plaintiffs, not all of whom were injured there.”15 Soon after the Court issued the opinion, commentators, seeing the opinion’s potential applicability to class actions, be- gan contemplating the decision’s consequences. The ramifica- tions of applying BMS to class actions seemed so severe and so relevant that articles about that possibility started gracing mainstream periodicals.16 One products liability litigator even general personal jurisdiction in California. Andrew D. Bradt & D. Theodore Rave, Aggregation on Defendants’ Terms: Bristol-Myers Squibb and the Fed- eralization of Mass Tort Litigation, 59 B.C. L. REV. 1251, 1275 (2017). In fact, the California state court itself originally held that it had general ju- risdiction over Bristol-Myers Squibb before the case went up to the Supreme Court. Order Den. Def. Bristol-Myers Squibb Company’s Mot. To Quash Service of Summons for Lack of Personal Jurisdiction 2:13–17, Sept. 23, 2013. 13 See Bristol-Myers Squibb, 582 U.S. at 259, 258–59. 14 Id. at 265. 15 Id. at 278 n.4 (Sotomayor, J., dissenting). 16 See, e.g., Richard Levick, The Game Changes: Is Bristol-Myers Squibb the End of an Era?, FORBES (June 11, 2017, 2:21 PM), No. 2] KEEPING CORPORATIONS IN THE COURTS 983 lamented that BMS’s “reiteration and reapplication of the principle that personal jurisdiction is litigant-specific may well sound the death-knell for nationwide class actions under state law, unless brought where a corporate defendant is ‘at home’ under [Daimler].”17 Furthermore, after the opinion was issued, some legal scholars and judges began affirmatively arguing that BMS should apply to class actions. Judge Laurence Silberman, touted by some as “the most influential judge never to have sat on the Supreme Court,”18 penned a lengthy dissent consid- ering whether the Supreme Court’s logic in BMS should be extended to class actions.19 Ultimately concluding that “logic dictates” that it should, Judge Silberman argued that, “like the mass action in Bristol-Myers, a class action is just a spe- cies of joinder, which ‘merely enables a federal court to adju- dicate claims of multiple parties at once, instead of in separate https://www.forbes.com/sites/richardlevick/2017/07/11/the-game-changes- is-bristol-myers-squibb-the-end-of-an-era/?sh=2c05bfc2e831 [https://perma.cc/D85Y-L6WV] (“Trump’s travel ban may be the focus of cur- rent media interest but no recent Supreme Court decision has a potentially greater impact than Bristol-Myers Squibb v. Superior Court of California.”); Robert Channick & Becky Yerak, Supreme Court Ruling Could Make it Harder to File Class-Action Lawsuits Against Companies, CHI. TRIB. (Nov. 6, 2022), https://www.chicagotribune.com/business/ct-supreme-court-rul- ing-mass-actions-illinois-0625-biz-20170622-story.html [https://perma.cc/83CQ-FRTV] (“[T]he Supreme Court opinion [will], on the whole, likely deter lawsuits against corporations. . . . [T]he new restrictions on jurisdiction may lead to a different kind of forum shopping: corporations seeking to move to states offering the protection of more favorable laws.”). 17 James M. Beck, Reed Smith LLP, Due Process Limits on Nationwide Class Actions Post-BMS v. Superior Court, at 4 (Wash. Legal Found., Criti- cal Legal Issues Working Paper Series No. 207, 2018), https://s3.us-east- 2.amazonaws.com/washlegal-uploads/upload/legalstudies/work- ingpaper/03-18BeckWP.pdf [https://perma.cc/7PH5-PW43]. 18 The Editorial Board, A Judge for First Principles, WALL ST. J. (Oct. 24, 2021), https://www.wsj.com/articles/a-judge-for-first-principles-lau- rence-silberman-award-thomas-11635109580 [https://perma.cc/P6K3- ZJ8Y]. 19 Molock v. Whole Foods Mkt. Grp., 952 F.3d 293, 305 (D.C. Cir. 2020) (Silberman, J., dissenting). 984 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 suits.’”20 He continued to reason that “since the requirements of personal jurisdiction must be satisfied independently for ‘the specific claims at issue,’ . . . personal jurisdiction over claims asserted on behalf of absent class members must be analyzed on a claim-by-claim basis.”21 Invoking similar structural arguments about class actions as a species of joinder, Professor A. Benjamin Spencer, a mem- ber of the Civil Rules Advisory Committee of the Judicial Con- ference of the United States, argued that “there must be per- sonal jurisdiction over a defendant with respect to the claims of absent class members”22 because “a court must have juris- diction over a defendant . . . to render a binding judgment against it”23 and that, with respect “to the claims of absent, unnamed class members, . . . to the extent that such claims are unconnected with the defendant’s forum state contacts, contemporary understandings of . . . constraints on state power prevent that forum from rendering a binding, in perso- nam judgment against the defendant on those claims.”24 Federal district courts confronting this issue in the wake of BMS have ruled both ways on the opinion’s applicability to Rule 23 class actions. However, an empirical study taken two- and-a-half years after the opinion came down found that ap- proximately three-quarters of district court opinions declined to extend BMS to class actions.25 Furthermore, the only cir- cuit courts to consider the question have ruled that BMS does not apply to class actions.26 20 Id. at 306 (quoting Shady Grove Orthopedic Assocs. P.A., v. Allstate Ins. Co., 559 U.S. 393, 408 (2010) (plurality opinion)). 21 Id. (quoting Bristol-Myers Squibb, 582 U.S. at 256). 22 A. Benjamin Spencer, Out of the Quandary: Personal Jurisdiction Over Absent Class Member Claims Explained, 39 REV. LITIG. 32, 47 (2019). 23 Id. at 39. 24 Id. at 48. 25 Daniel Wilf-Townsend, Did Bristol-Myers Squibb Kill the Nation- wide Class Action, 129 YALE L.J. FORUM 205, 208 (2019). 26 See Fisher v. Fed. Express Corp., 42 F.4th 366 (3d Cir. 2022); Lyn- gaas v. Ag, 992 F.3d 412 (6th Cir. 2021); Mussat v. IQVIA, Inc., 953 F.3d 441 (7th Cir. 2020). No. 2] KEEPING CORPORATIONS IN THE COURTS 985 Most of the courts that have limited BMS to mass actions have invoked Devlin v. Scardelletti.27 In that case, the Su- preme Court held that “[n]onnamed class members . . . may be parties for some purposes and not for others. The label ‘party’ does not indicate an absolute characteristic, but rather a con- clusion about the applicability of various procedural rules that may differ based on context.”28 Using this framework, lower courts typically have analyzed the procedural and structural differences between mass actions and class actions, often dis- tinguishing the two by highlighting that “each plaintiff is a real party in interest” in a mass action, whereas unnamed class members litigate through “representatives” in a class ac- tion.29 Focusing on these structural differences, these courts have concluded that non-named class members should not be considered “parties” in class actions.30 Notwithstanding this apparent early preference in the lower courts for limiting BMS to mass actions, the Supreme Court and a majority of Courts of Appeals have not yet taken up the question. But in its recent string of personal jurisdic- tion cases, the Supreme Court has not hesitated to circum- scribe courts’ jurisdictional power, all the while purportedly applying “settled principles.”31 As the applicability of BMS to Rule 23 class actions has not been conclusively decided,32 guidance is still needed on the legal, policy, and normative considerations involved in the issue. 27 Devlin v. Scardelletti, 536 U.S. 1 (2002). 28 Id. at 9–10. 29 See, e.g., Sanchez v. Launch Technical Workforce Solutions, LLC, 297 F. Supp. 3d 1360, 1365 (N.D. Ga. 2018). See also Molock v. Whole Foods Mkt., Inc., 297 F. Supp. 3d 114, 126–27 (D.D.C. 2018) (synthesizing case law that limited BMS to mass actions), aff’d, 952 F.3d 293 (D.C. Cir. 2020). 30 See, e.g., Mussat v. Iqvia, Inc., 953 F.3d at 441, 447 (7th Cir. 2020). 31 See, e.g., Bristol-Myers Squibb Co. v. Superior Court of California, 582 U.S. 255 at 264 (2017). 32 See 2 WILLIAM B. RUBENSTEIN, NEWBERG AND RUBENSTEIN ON CLASS ACTIONS § 6:30 (6th ed. 2022) (“The ultimate impact of Bristol-Myers Squibb on nationwide class actions remains unsettled and will likely be so until the Supreme Court weighs in further.”). 986 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 III. THE IMPLICATIONS OF APPLYING BMS TO CLASS ACTIONS Extending BMS to class actions would severely compro- mise the ability of private plaintiffs to use litigation as a tool to effectuate United States regulatory policy. Understanding the extent of these ramifications requires a consideration of two factors: first, the importance that private litigation, and class actions in particular, plays in corporate accountability; and second, the inadequacy of the resultant state of litigation should BMS’s limitations on specific jurisdiction be extended to the class action form. A. The Importance of Class Actions in Corporate Accountability It is essential that BMS’s limitations on aggregate litiga- tion not be extended to class actions. Extending BMS to class actions would limit the size of class actions brought in states where the defendant is not subject to general jurisdiction by restricting the size of the class to just those individuals whose injuries arose out of the defendant’s contacts with that one state. The size of class actions, and their resultant high-stakes nature, makes them a powerful deterrent to corporate miscon- duct. As a result, extending BMS to apply to class actions would directly undermine the primary element of class actions that makes them so effective at holding corporations account- able. 1. The Importance of Private Litigation in Corporate Regulation Lawsuits brought by private plaintiffs serve an essential regulatory function in the United States. In fact, litigation is often called “de facto regulation.”33 There are two distinct fea- tures of the American regulatory system that foster the need 33 MandA.TV, Bill Savitt – Wachtell, Lipton, Rosen & Katz, YOUTUBE (Feb. 19, 2016) (interview with William Savitt), https://www.youtube.com/watch?v=csiySHar2RI [https://perma.cc/75M5- H3P6]. No. 2] KEEPING CORPORATIONS IN THE COURTS 987 for private litigation to enforce regulatory aims. First, the American system of regulatory enforcement, unlike the Euro- pean system, relies on ex post penalties for violations of regu- latory provisions. Instead of regulating “consequences,” most other developed countries regulate “entry.”34 In other words, these countries generally require advanced administrative ap- proval from a centralized, government bureaucracy, both when opening new businesses and when introducing new products into the market.35 Second, the American ex post reg- ulatory approach differs from the European approach in that the American system relies on a diffuse set of regulators, both public and private, in order to enforce regulatory objectives.36 Importantly, this reliance on private litigation is frequently a deliberate legislative decision made in statutory implementa- tion.37 As a result of these two features, in the United States, the “[r]egulation of wrongdoing by private parties is not merely . . . [a] supplement to public enforcement by regulators,” but is in an “institutional feature of our public law.”38 In fact, one empirical study found that “where public and private litiga- tion enforcement mechanisms are coupled, private enforcers bring over ninety-five percent of enforcement actions.”39 Due to the essential role that private lawsuits play in regulatory enforcement, robust and powerful mechanisms for bringing private causes of action are needed to maintain accountability 34 Samuel Issacharoff, Regulating After the Fact, 56 DEPAUL L. REV. 375, 377 (2007). 35 Id. at 375. Even in the United States, though, there are certain ex- ceptions to the ex-post default approach. For example, the Food and Drug Administration requires pharmaceutical companies to ask permission and receive approval before putting a drug on the market. See 21 C.F.R. § 314.107 (2016). 36 J. Maria Glover, The Structural Role of Private Enforcement Mecha- nisms in Public Law, 53 WM. & MARY L. REV 1137, 1140 (2012). 37 Stephen B. Burbank & Sean Farhang, Litigation Reform: An Intui- tional Approach, 162 U. PENN. L. REV. 1543, 1547 (2014). 38 Glover, supra note 36, at 1141. 39 Luke P. Norris, The Promise and Perils of Private Enforcement, 108 U. VA. L. REV. 1483, 1494 (2022) (citing SEAN FAHRANG, THE LITIGATION STATE: PUBLIC REGULATION AND PRIVATE LAWSUITS IN THE U.S. 10 (2010)). 988 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 over corporate defendants subject to these regulatory schemes. 2. The Class Action Form and Corporate Accountability Class-action litigation is a particularly effective form of regulation over corporations. Some scholars even argue that the fact that class actions effectively deputize “private attor- neys general” to bring suits against corporations makes “[c]lass action lawsuits . . . the most effective way to hold cor- porations accountable.”40 The history of the class action is directly tied into its im- portance. The modern class action “developed in response to the inability of centralized government institutions to compre- hensively address a number of widespread wrongs.”41 In the words of Chief Justice Burger, “[t]he aggregation of individual claims in the context of a classwide suit is an evolutionary re- sponse to the existence of injuries unremedied by the regula- tory action of government.”42 Today, class actions are the “cen- tral mechanism of enforcement for a broad range of laws, including those governing products liability, securities fraud, consumer fraud, and antitrust violations.”43 Furthermore, class actions may constitute the only viable form of regulatory litigation in certain areas. Because litiga- tion is very expensive, often it is unlikely that a sufficient number of plaintiffs will bring individual claims against a given corporation to constitute a legitimate threat to that cor- poration’s financial or reputational wellbeing. This idea is fre- quently referred to as the existence of a “negative value suit.”44 The concept of the “negative value suit” refers to the idea that when an individual is harmed to a small enough ex- tent that the damage award for his or her injury alone would 40 BRIAN T. FITZPATRICK, THE CONSERVATIVE CASE FOR CLASS ACTIONS 3 (2019). 41 Glover, supra note 36, at 1163. 42 Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 339 (1980). 43 Glover, supra note 36, at 1163. 44 Castano v. American Tobacco Co., 84 F.3d 734, 748 (5th Cir. 1996). No. 2] KEEPING CORPORATIONS IN THE COURTS 989 not make it worth it to undergo the expense necessary hire a lawyer and bring a lawsuit, the individual suit will likely never be brought in the first place.45 The economic reality of negative value suits means that individuals may not be af- forded the opportunity to vindicate their legal rights at all without the availability of the class action form.46 As Judge Posner once remarked in an opinion affirming class certifica- tion for a class of 17 million low-value claims, “[t]he realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”47 The aggregative function of class action litigation can also help balance the financial investment in a suit between indi- vidual plaintiffs and large, corporate defendants, even if the individual suit might be profitable on its own.48 If a plaintiff sues a pharmaceutical company because its drug allegedly caused $200,000 of harm to the plaintiff, the plaintiff’s lawyer who is working on a 30% contingency fee will invest up to $60,000 in the suit. The pharmaceutical company, however, stands to lose $200,000, so, it will invest up to $200,000 just to defend against the individual plaintiff. But if the company knows that thousands of individuals have consumed the drug and potentially have been injured by it, it will invest signifi- cantly more than $200,000, because once causation and liabil- ity are established in the first suit, it will be far easier for a plaintiff to establish these elements in later suits.49 However, if a class action attorney with a 20% contingency fee 45 FITZPATRICK, supra note 40, at 5. 46 See Gardner et al., supra note 7, at 465 (“Denying plaintiffs a forum in which they can sue collectively can, in some cases, be equivalent to deny- ing them any forum at all.”); see also Am. Express Co. v. Italian Colors Rest., 570 U.S. 228, 246 (2013) (Kagan, J., dissenting) (observing that preventing plaintiffs from proceeding collectively can make the “effective vindication” of their statutory rights “prohibitively expensive”). 47 Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004). 48 The following example approximates one used in FITZPATRICK, supra note 40, at 64–66. 49 In fact, the pharmaceutical company may be collaterally estopped from relitigating the issue of causation at all, depending on the exact facts of the case. See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 332 (1979). 990 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 represents a class of 500 plaintiffs, each with $200,000 of dam- ages, the attorney will be willing to invest up to $20,000,000 in the suit. In this way, the economies of scale facilitated by the aggregative function of class actions allow potentially profitable suits to be “brought and handled in a manner com- mensurate with its magnitude.”50 An additional, non-economic benefit of class actions is that they allow individuals who are aware of corporate misdeeds to vindicate the rights of individuals who may have suffered identical harms but are unaware of it. When individuals suf- fer the kinds of small harms that might be present in a nega- tive value suit, those victims may not even realize that they were harmed at all.51 But because the class action form allows for representative litigation, individuals who do become aware of harm (say, in a consumer fraud or mislabeling case) can represent those who are unaware of the harm.52 For example, in 2021, Zoom Video Communication, Inc. settled a class ac- tion lawsuit against it after plaintiffs alleged that Zoom was sharing users’ privacy data without authorization.53 It stands to reason that many of the users who had a Zoom subscription between 2016 and 2021 (the definition of the class repre- sented) were unaware that their private information was used without authorization. But because the class action form al- lows for representative litigation, the named plaintiffs (or per- haps, their lawyers) who were aware of the breach were able to effectuate relief for those who were not.54 50 Harry Kalven, Jr. & Maurice Rosenfield, The Contemporary Func- tion of the Class Action Suit, 8 U. CHI. L. REV. 684, 717 (1941). 51 FITZPATRICK, supra note 40, at 60. 52 Id. at 61. 53 Jonathan Stempel, Zoom Reaches $85 Million Settlement Over User Privacy, “Zoombombing,” REUTERS (Aug. 2, 2021, 4:05 PM), https://www.reuters.com/technology/zoom-reaches-85-mln-settlement-law- suit-over-user-privacy-zoombombing-2021-08-01/ [https://perma.cc/E3EP- VSTR]. 54 As a part of the settlement, any individual who had a Zoom subscrip- tion between March 30, 2016 and July 30, 2021 could file a claim online for $25. Jay Peters, Zoom Might Pay You $25 as Part of a Class-Action Settle- ment, THE VERGE (Dec. 2, 2021, 5:56 PM), No. 2] KEEPING CORPORATIONS IN THE COURTS 991 These economic and representative features of class ac- tions make them necessary for enforcing and deterring corpo- rate wrongdoing.55 Class actions “deter by making defendants pay for, and thus internalize, the costs of their actions. But for cost internalization and deterrence to occur, a class action must be a reality.”56 Furthermore, “[a]lthough consumer class actions generally address small individual claims, they are nevertheless significant protective and preventive mecha- nisms in a world where interactions with economically and po- litically powerful corporations are such a pervasive aspect of people’s daily life.” 57 Without the unique aggregative feature of the class action form, there is a “real risk . . . that serious wrongdoing at the corporate level will go unchecked for want of a champion to respond to a common problem.” 58 B. The Insufficiency of General Jurisdiction Were BMS extended to class actions, a nation-wide class could only bring suit in a state where the defendant was sub- ject to general jurisdiction. General jurisdiction provides an inadequate substitute for the ability to base a class action suit on specific jurisdiction. Reliance on general jurisdiction is problematic for two reasons: first, there may be no forum where the suit could be heard at all; and second, it would in- centivize jurisdictions to adopt defendant-friendly choice-of- law rules and substantive law. https://www.theverge.com/2021/12/2/22814758/zoom-class-action-lawsuit- zoombombing-encryption-settled/ [https://perma.cc/TB8L-4GKR]. 55 See infra Section III.C for a discussion of why MDL does not solve these issues. 56 1 WILLIAM B. RUBENSTEIN, NEWBERG AND RUBENSTEIN ON CLASS AC- TIONS § 1.6 (6th ed. 2022). 57 Alexandra Lahav, Fundamental Principles for Class Action Govern- ance, 37 IND. L. REV. 65, 100–01 (2004). 58 Richard A. Epstein, Class Actions: The Need for a Hard Second Look, 4 CIV. JUST. REP. 5 (Mar. 2002), https://media4.manhattan-insti- tute.org/pdf/cjr_04.pdf [https://perma.cc/CF95-QFDP]. 992 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 1. Potential Lack of a Forum at All Limiting the fora available for multi-state class actions to only those states that have general jurisdiction over the de- fendant could result in a situation where there is no forum in the United States that could adjudicate the dispute. The non- existence of a forum with general jurisdiction to adjudicate a given dispute that might otherwise be amenable to specific ju- risdiction could occur for three reasons. First, for a foreign corporation, there may be no forum in the United States where the corporation is subject to general jurisdiction, even if the corporation has significant contacts with the United States.59 For example, in Douglass v. Nippon Yusen Kabushiki Kaisha, the Fifth Circuit held that a global shipping company, which was headquartered in Japan, had extensive contacts with the United States, and had litigated in United States courts over 30 times, could not be sued in any district court in the United States for deaths it caused to United States soldiers overseas.60 Specific jurisdiction was unavailable because the claims against the corporation did not arise out of any of its United States contacts. And because the corporation was headquartered and incorporated in Ja- pan, and thus not “at home” anywhere in the United States, there was no forum that could exercise general jurisdiction over the defendant.61 Second, for a suit against two defendants who together caused harm, there may be no forum where both defendants would be subject to general jurisdiction, even though there may be one or more fora where both would be subject to spe- cific jurisdiction.62 Consider a hypothetical in which there is a second BMS defendant: a pharmaceutical distribution com- pany incorporated in Texas and headquartered in Oklahoma that distributed the harmful drug to California. Under today’s law, both Bristol-Myers Squibb and this hypothetical 59 Gardner et al., supra note 7, at 461. 60 See Douglass v. Nippon Yusen Kabushiki Kaisha, 46 F.4th 226, 229 (5th Cir. 2022). 61 Id. at 234–35. 62 Gardner et al., supra note 7, at 462. No. 2] KEEPING CORPORATIONS IN THE COURTS 993 company would be subject to specific jurisdiction in California for the injuries caused to California plaintiffs. However, there is no state in the country where both companies would be sub- ject to general jurisdiction.63 Thus, a lawsuit against both de- fendants, whether a class action or not, could only proceed jointly against both defendants under a theory of specific ju- risdiction. Finally, there may be no forum that can hear a dispute not only because of the doctrine of personal jurisdiction, but be- cause of the doctrine of forum non conveniens. Each state has its own law of forum non conveniens, and many state courts apply it to dismiss cases against at-home defendants when the court determines that the dispute would be more properly heard elsewhere.64 This practice is particularly prevalent in prominent “at-home” jurisdiction states like Delaware and New York, and is used not just in states of incorporation, but also in states where corporations maintain their principal places of business.65 As a result, even if a multi-state class action were to bring suit in a state where the defendant was subject to general jurisdiction, it is possible that that forum would choose not to hear the dispute in question. 2. Incentives to Create Defendant-Friendly Jurisdictions Second, and more broadly, limiting personal jurisdiction in class actions to defendants’ home states most likely will lead to the development of defendant-friendly law in two ways.66 First, overreliance on general jurisdiction would incentiv- ize jurisdictions to adopt forum-law-friendly choice-of-law rules.67 States would effectuate this by changing their choice- 63 In this example, Bristol-Myers Squibb could be subject to general ju- risdiction in New York or Delaware, and the hypothetical company could be subject to general jurisdiction in Texas and Oklahoma. 64 Gardner et al., supra note 7, at 464. Presumably, the forum that the court determines would be more proper for the dispute would be one that could exercise specific jurisdiction over the defendant. 65 Id. 66 Id. at 458. 67 Id. at 467. 994 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 of-law rules to favor a presumption of lex fori (law of the fo- rum), rather than lex loci (law of the place of injury).68 Such a change actually occurred in Michigan, just as one example.69 As a result, in cases against Michigan automotive manufac- turers involving car accidents that occurred in other states, Michigan courts have found that “those states’ interests in having their law applied to claims brought by their residents for in-state accidents [do] not overcome Michigan’s interest in applying Michigan law to Michigan car manufacturers.”70 With choice-of-law rules in place that favor the law of the forum, putative forum states are incentivized to develop de- fendant-friendly substantive law. The development of the law in this direction is not only possible, but probable, because “[w]hen states’ courts are filled with cases brought by out-of- state plaintiffs against local corporate defendants,” states will naturally “adopt laws protective of those interests.”71 For ex- ample, Michigan also developed very defendant-friendly prod- ucts-liability law,72 which its state courts then applied to cases involving resident automobile manufacturer defend- ants.73 68 It is also worth noting that such a change would apply in federal court as well, as federal courts sitting in diversity must apply the choice-of- law doctrine of the forum state. See Klaxon Co. v. Stentor Electric Manufac- turing Co., Inc., 313 U.S. 487, 496 (1941). 69 Gardner et al., supra note 7, at 470. 70 Id. It is worth noting that there are due process limits on applying lex fori to controversies that have very little connection with the forum in question. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 818–19 (1985). That being said, presumably applying the law of the forum to a controversy involving a resident defendant would meet the requisite “state interest[]” required to comport with Due Process. Id. at 818 (citing Allstate Ins. Co. v. Hague, 449 U.S. 302, 312–13 (1981)). 71 Id. at 469. 72 Id. at 470–71. 73 Id. at 472 (“Once choice-of-law rules point in the direction of the fo- rum state’s law . . . , then all of the other locally friendly substantive laws— like limitation on punitive damages, strict liability, or respondeat supe- rior—come in as well. Indeed, even if a state court finds that another state’s substantive law applies, it may nevertheless apple its local law on issues like damages limitations.”). No. 2] KEEPING CORPORATIONS IN THE COURTS 995 This defendant- and corporation-friendly shift in the law creates a “bias favoring defendants” that is particularly prob- lematic when plaintiffs are seeking recourse against corporate defendants.74 These developments not only disadvantage out- of-state plaintiffs who are forced to sue a corporate defendant in its home jurisdiction, but they might discourage plaintiffs from suing at all.75 C. The Insufficiency of MDL as an Alternative Solution Due to the aggregative features of multidistrict litigation (“MDL”) and its increasing importance in the federal docket in areas like products liability and mass torts, MDLs might seem like a tempting alternative to class actions. This is espe- cially so because MDLs face far fewer restrictions with respect to personal jurisdiction than do class actions and mass ac- tions.76 However, despite the many positive features of MDLs, they have several shortcomings and are different enough from class actions that they should not be considered a viable sub- stitute. 1. MDL’s Built-In Limitations There are two primary structural limitations with MDL. First, MDLs can only consolidate cases in federal court, and not cases in state court.77 Thus, its ability to cure piecemeal litigation is significantly limited, especially in state-law-dom- inated areas like products liability. While it is true that a case that is removed to federal court can then be transferred into an MDL, MDLs would be severely impaired as a class-action consolidation tool if BMS were extended to class actions. Such an extension would force class actions to proceed on a state- 74 Mehren & Trautman, supra note 3, at 1147. 75 Gardner et al., supra note 7, at 472. 76 See infra Section III.C.2 for a discussion of personal jurisdiction in MDL. 77 See 28 U.S.C. § 1407(a) (“When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings.”). 996 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 by-state basis, and it is quite possible that these smaller class actions—limited only to those plaintiffs harmed in a single state—would not meet the requirements for federal subject matter jurisdiction under the Class Action Fairness Act (CAFA),78 thus making the actions unremovable to federal court, and therefore unable to be consolidated into an MDL. Second, MDL only applies to “pretrial proceedings,”79 and thus cannot extend to a trial on the merits. As a result, a suit that might benefit from a jury trial (for example, one involving a corporation accused of systemic gender discrimination80) could not benefit from an aggregated jury trial via MDL, whereas it could through the class action form. 2. Resulting Problems with MDL While, in theory, MDL only applies to “pretrial proceed- ings,” “it is the worst-kept secret in civil procedure that the MDL is really a dispositive, not pretrial, action.”81 This is be- cause the MDL court retains the power to dismiss suits and authorize settlement. Most MDLs are either dismissed or set- tled, and fewer than three percent of suits transferred into MDLs are ever remanded.82 The dispositive nature of MDLs, in conjunction with the personal jurisdiction rules that apply to them, may result in due process issues. The current law of personal jurisdiction in MDLs is that the transferring court must have personal juris- diction over the defendant, but the transferee court does not.83 Thus, many suits that go into MDLs proceed to final 78 See 28 U.S.C. § 1332(d)(2) (requiring a minimum amount in contro- versy of $5 million for class actions to qualify for federal subject matter ju- risdiction). 79 28 U.S.C. § 1407(a). See also infra Section II.C.2 for a discussion qualifying MDL’s limitation to “pretrial proceedings.” 80 See, e.g., Wal-Mart v. Dukes, 564 U.S. 338 (2011). 81 Abbe R. Gluck, Unorthodox Civil Procedure: Modern Multidistrict Litigation’s Place in the Textbook Understandings of Procedure, 165 U. PA. L. REV. 1669, 1673 (2017). 82 Andrew D. Bradt, The Long Arm of Multidistrict Litigation, 59 WM. & MARY L. REV. 1165, 1169 (2018). 83 Id. at 1169–70 (2018). No. 2] KEEPING CORPORATIONS IN THE COURTS 997 judgments in front of courts that have no personal jurisdiction to hear those suits in the first place. Any legal change that would encourage a push of more suits into MDLs—such as a limitation on the use of class actions—would exacerbate these due process issues. Another, perhaps bigger, issue is that plaintiffs lack agency in MDLs. Once suits are transferred into an MDL, “the plaintiff exercises functionally very little control over the liti- gation.”84 Furthermore, the fact that these suits can be trans- ferred to any district court in the country means that plaintiffs may be forced to defend themselves in foreign and unrelated fora, a problem that the doctrine of personal jurisdiction at- tempts to combat.85 Illustrating these problems, one district judge observed, “something is lost when Mrs. Smith, who is injured by ingesting a drug in Columbus, Georgia, does not have the opportunity to tell her story here at home but must be relegated to ‘Plaintiff number X’ in some settlement grid in a faraway courthouse by a faceless judge.”86 Finally, for plaintiffs and the litigation system as a whole, MDL does not solve the problems associated with the negative value suit.87 Because MDLs consist of consolidated individual lawsuits that were already brought in court, a lawyer would have to be willing to bring that initial, individual suit in the first place before that suit got transferred into an MDL. By contrast, the class action form allows plaintiffs and lawyers to consider the economics of bringing suit on behalf of a group of plaintiffs ab initio. For these reasons and for the structural reasons discussed above, corporate defendants tend to prefer MDL to class 84 Id. at 1224. While this may be true in class actions as well, plaintiffs have the opportunity to opt out of class actions for money damages. Fed. R. Civ. P. 23(c)(2)(B). On the other hand, plaintiffs who bring individual suits may have their actions transferred into an MDL without their consent. 85 See infra Section IV.A.1 for a discussion of the goals and values of the doctrine of personal jurisdiction. 86 Letter from Judge Clay D. Land, U.S. Dist. Ct. J. for the Middle Dist. of Ga., to Professor Francis E. McGovern, Duke Law Sch. (Oct. 29, 2010), quoted in Abbe R. Gluck & Elizabeth Chamblee Burch, MDL Revolution, 96 N.Y.U. L. REV. 1, 57 (2021). 87 See supra Section III.A.2. 998 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 actions.88 This is because “MDL allows defendants to avoid the costs of duplicative litigation without the risk that a single classwide verdict will impose firm-threatening liability—a prospect that defendants often argue forces them to settle even questionable claims once a class is certified.”89 Thus, any doctrinal changes that reduce the amount of suits that are brought as class actions and that increase the amount of suits that end up in MDL are changes that would both benefit cor- porate defendants and undermine the power of private litiga- tion in upholding corporate accountability. IV. PROPOSED SOLUTION Whether BMS applies to class actions remains an open question, and the lower courts are in disagreement about the case’s application.90 Doctrinal clarity is needed about the lim- its of the specific-jurisdiction inquiry involving absent class members. That clarity could be achieved through a form of ju- risdictional imputation, whereby if the court has personal ju- risdiction over the defendant with respect to the claims of the class representatives, the court imputes personal jurisdiction over that defendant with respect to the claims of absent class members. The legal basis for imputation could be an amend- ment to the Federal Rule of Civil Procedure or a judicial opin- ion. However, before considering these solutions, it is worth considering why imputation does not offend the values and principles that underly the doctrine of personal jurisdiction as it has developed to this day. A. Why Impute? A consideration of the values and goals that animate the doctrine of personal jurisdiction, together with the require- ments of valid class certification, demonstrates that the impu- tation of personal jurisdiction over the claims of absent class members when the claims of their representatives are 88 Bradt, supra note 12, at 1267. 89 Id. 90 See supra Section II.B. No. 2] KEEPING CORPORATIONS IN THE COURTS 999 properly before the court is consistent with values that ani- mate the doctrine of personal jurisdiction. 1. The Justifications for Personal Jurisdiction The Supreme Court has grounded the doctrine of personal jurisdiction, and its resulting limitations on a court’s power to adjudicate a dispute, on two justifications: due process and federalism.91 Over the past 40-or-so years, as opposed to ana- lyzing these two separately and independently of each other, the Supreme Court has offered a useful multi-factor frame- work for “reasonableness” that successfully weaves together both of these considerations.92 In particular, these factors ad- equately take into account the federalism concerns of personal jurisdiction in a way that the minimum contacts inquiry—the actual doctrinal standard for establishing personal jurisdic- tion—alone does not.93 While many of these factors were rooted in earlier cases, they are most explicitly stated in World-Wide Volkswagen Corp. v. Woodson.94 The factors to be considered are (i) the burden on the defendant, (ii) the forum state’s interest in ad- judicating the dispute, (iii), the plaintiff’s interest in obtaining convenient and effective relief, (iv) the interstate judicial sys- tem’s interest in obtaining the most efficient resolution of con- troversies, and (v) the shared interest of the several states in furthering fundamental substantive social policies.95 A con- sideration of how jurisdictional imputation would implicate each of these factors in the context of a properly certified class 91 See Ford Motor Co. v. Montana Eighth Judicial District, 141 S.Ct. 1017, 1025 (2021). 92 Gardner et al., supra note 7, at 478. 93 Id. at 475–79 (explaining how the fairness factors adequately ad- dress the fairness considerations associated with due process while also con- sidering balance of interests among different states in a way that a single- state-focused, minimum contacts inquiry does not). 94 444 U.S. 286 (1980). 95 Id. at 292. See infra Section IV.A.3 for a more thorough discussion of these factors. 1000 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 affirms that imputation is consistent with the values that un- derlie due process.96 2. The Requirements of Class Certification Before discussing why jurisdictional imputation for a properly certified class does not offend due process or federal- ism justifications of personal jurisdiction, it is worth briefly going over what is required to properly certify a class. Class certification, detailed in Rule 23 of the Federal Rules of Civil Procedure, has four requirements that apply to any type of class action and two additional requirements for a class seek- ing a damages award from, rather than an injunction against, a defendant.97 In order to certify any class, the class must meet the fol- lowing requirements98: (i) numerosity, such that “joinder of all members is impracticable”; (ii) commonality, which exists when “there are questions of law or fact common to the class”; (iii) typicality, meaning the claims of the class representatives are “typical of the claims . . . of the class”; and (iv) adequacy of representation, meaning that the class representatives will “fairly and adequately protect the interests of the class.”99 Furthermore, a class seeking monetary damages has two additional requirements: (i) predominance, meaning that “the questions of law or fact common to class members predomi- nate over any questions affecting only individual class mem- bers”; and (ii) superiority, meaning that the class action form “is superior to other available methods for fairly and effi- ciently adjudicating the controversy.”100 3. The Merits of Imputation The imputation of jurisdiction over absent class members in a properly certified Rule 23 class action implicates each of 96 See infra Section III.A.3. 97 See Fed. R. Civ. P. 23(a). 98 A commonly used short-hand is offered for each requirement for ease of reference. 99 Fed. R. Civ. P. 23(a). 100 Fed. R. Civ. P. 23(b)(3). No. 2] KEEPING CORPORATIONS IN THE COURTS 1001 the “reasonableness factors” above in a way that is consistent with the values that animate the doctrine of personal jurisdic- tion.101 i. The Burden on the Defendant The burden on the defendant is the primary concern ani- mating the due process justification for personal jurisdic- tion.102 It is also the factor that most clearly supports imput- ing jurisdiction over absent class members. In a properly certified class action, the defendant would already be in court, defending itself against the claims on which the class was cer- tified. Because of the commonality and typicality require- ments, any absent class members’ claims would necessarily have to bear sufficient factual similarity103 to the representa- tives’ claims to avoid being meaningfully additionally burden- some to defend against those added claims. Furthermore, in a suit for damages, these factually parallel claims would have to predominate over any other claims, further minimizing any additional burden. It is true that by allowing class certification, the defendant has to litigate against a potentially higher damages award. However, this factor is not focused on that kind of burden; in- stead, it is focused on “protect[ing] the defendant against the burdens of litigating in a distant or inconvenient forum.”104 In this context, a defendant would already be litigating in the forum in question, and thus adding the claims of class mem- bers who were harmed in other states would not further bur- den the defendant within the meaning of how this factor is considered by the courts. 101 The analysis acknowledges that, doctrinally, satisfaction of the fair- ness factor is not sufficient to establish jurisdiction; instead, it is using these factors as a way to demonstrate how jurisdictional imputation would be con- sistent with the underlying values that animate the doctrine of personal jurisdiction. See generally, supra Section IV.A.1. 102 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980). 103 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349–50 (2011). 104 World-Wide Volkswagen, 444 U.S. at 292 (emphasis added). 1002 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 ii. The Forum State’s Interest in Adjudicating the Dispute The forum state’s interest in adjudicating a dispute does not clearly cut in favor of jurisdictional imputation, but it does not clearly cut against it either. This factor asks whether the forum state has an interest in adjudicating the dispute to pro- tect its own citizens or to vindicate its own laws.105 One might argue that the forum state has proportionally less interest in adjudicating a dispute as more out-of-state class members are added, but this is not necessarily the case. While it is true that the forum would be providing relief to class members, the claims that are being adjudicated are those of the class repre- sentatives, which are required to be typical of the class as a whole. Thus, the forum state is primarily adjudicating the claims of the class representatives. Furthermore, if the class representatives’ claims were subject to specific jurisdiction in the forum, then presumably the forum would have an interest in adjudicating their claims. It is not clear how adding addi- tional claims belonging to absent class members would lessen the forum state’s initial interest in adjudicating claims of its citizens.106 iii. The Plaintiff’s Interest in Obtaining Convenient and Effective Relief A consideration of the plaintiff’s interest in convenient and effective relief strongly counsels towards allowing jurisdic- tional imputation. This factor must be analyzed through the 105 See McGee v. International Life Ins. Co., 335 U.S. 220, 223 (1957); Asahi Metal Industry Co., Ltd. v. Superior Ct. of Cal., 480 U.S. 102, 114–15 (1987). 106 It is true that imputation might undermine the interest of other po- tential forum states in adjudicating disputes involving their citizens. How- ever, the case that originated this factor, McGee v. International Life Ins. Co., made clear that this inquiry really just concerns the legitimacy of the forum in question to hear the dispute and is not a balancing test among potential fora. See McGee, 335 U.S. 220, 223 (1957) (only considering Cali- fornia’s potential interest in hearing a dispute involving its citizen, and not considering Texas’s potential countervailing interest in hearing the dispute despite the defendant’s residency in Texas). No. 2] KEEPING CORPORATIONS IN THE COURTS 1003 proper lens, using the absent class members as the plaintiffs in question, because it is their claims over which a court will impute jurisdiction. Class actions frequently are the most ef- fective way to bring suits against corporate defendants, and in certain areas of the law, they may be the only effective way to bring suit against a corporate defendant.107 And class ac- tions offer an extremely convenient way for courts to afford relief to plaintiffs: in most class actions, if class members do not affirmatively opt out, they can partake in the relief.108 In other words, the class representatives, who are required to be able to adequately represent the members, are able to do all the work while the class members can simply wait for the judgment or settlement. But when viewing the absent class members jointly as a group, the “convenience” conferred by a class action becomes even more critical. If a court does not impute jurisdiction over these class members, they have two options for bringing their claims. The first is to bring multiple class actions, each only containing plaintiffs who were injured in the forum state. Bringing multiple class actions, as opposed to one single class action, in order to vindicate the rights of the same group of plaintiffs clearly points against convenience. The other option is to bring the class action in a state where the defendant is subject to general jurisdiction (assuming such a state exists at all109). Unless a plurality of class members already resides in this state, then being forced to bring the class action in this state is less convenient. iv. The Interstate Judicial System’s Interest in Obtaining the Most Efficient Resolution of Controversies As a general statement, authorizing class actions to adju- dicate the claims of more individuals contributes to the effi- ciency of the interstate judicial system in the resolution of 107 See supra Section III.A.2. 108 They may have to file a claim to receive this relief, but in modern times, this can usually be done fairly easily on the internet. 109 See supra Section III.B.1. 1004 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 controversies. When the claims certified are common to the class, and especially when those common claims predominate over individual claims, any separation of the litigation based purely on jurisdictional grounds would necessarily result in piecemeal and duplicative litigation.110 This is exacerbated by the fact that class members have to be so numerous as to make joinder impracticable, meaning that not certifying the class would not only result in duplicative litigation, but lots of it. It is also worth noting that due to the aforementioned shortcom- ings of MDL,111 MDL should not be considered a cure-all for piecemeal litigation. This factor is also sometimes interpreted to consider pro- cedural issues such as the location of witnesses and evidence. It is true that for individuals who were harmed out of state as a result of out-of-state contacts, witnesses and evidence for those individuals will likely not be located in the forum state. However, if their claims satisfy commonality, and if the rep- resentatives’ claims are typical, then the in-state witnesses and evidence that authorized reasonable specific jurisdiction in the first place should be sufficient to resolve the claim of the out-of-state class members. v. The Shared Interest of the Several States in Furthering Fundamental Substantive Social Policies This factor considers the “common interest of all sover- eigns in promoting substantive social policies.”112 Specifically, this factor considers which forum, among many, is most ap- propriate for the states’ common interest in the furthering of substantive social policies,113 as opposed to which state is 110 Gardner et al., supra note 7, at 463. 111 See supra Section III.C. 112 Harlow v. Children’s Hosp., 432 F.3d 50, 68 (1st Cir. 2005) (quoting United Electrical, Radio and Machine Workers of America v. 163 Pleasant Street Corporation, 960 F.2d 1080, 1088 (1st Cir. 1992)). 113 Id. See also Kulko v. Superior Court of California, 436 U.S. 84, 98 (1978). No. 2] KEEPING CORPORATIONS IN THE COURTS 1005 more interested in vindicating its own substantive law.114 At the very least, if the class’s claims satisfy commonality, and the class representative’s claims satisfy typicality, then in choosing among different fora where the suit could be brought, it is not apparent why broader class certification would coun- sel against this factor. However, there is also an argument that broader class cer- tification actually is necessary for the interstate judicial sys- tem as a whole to vindicate substantive social policies. Con- sidering the aforementioned discussion of the effectiveness of class action litigation in effectuating regulatory policy against corporate defendants,115 a jurisdictional rule that limits the size of classes, and perhaps limits their ability to be brought at all in certain cases, would undermine the shared interest of states in vindicating substantive social policies.116 B. Possible Methods of Imputation Most courts that have limited BMS have done so by distin- guishing between “parties” and “nonparties” and concluding that absent class members are nonparties for the purpose of personal jurisdiction.117 However, more clarity and doctrinal stability would result from an affirmative imputation of juris- diction over the claims of absent class members.118 There are two ways to establish a legal basis for imputation: through an amendment to the Federal Rules of Civil Procedure or through judge-made law in judicial opinions. 114 This latter consideration falls more properly under the “forum state’s interest” factor. See supra Section IV.A.3.b. It also stands to reason that in areas that are frequently the subject of class actions, like products liability or consumer safety, there is more commonality than divergence among various states’ substantive social policies. 115 See supra Section III.A.2. 116 See supra Section III.A for a discussion of the importance of class actions in effectuating regulatory policy. 117 See supra notes 27–28 and accompanying text. 118 See supra Section IV.A. 1006 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 1. Rule 23 Perhaps the most obvious and clear solution to the issue of personal jurisdiction over absent class members is to amend Rule 23 itself, which governs class actions. Rule 23 already provides for special procedures for class actions separate and apart from the class certification rules.119 One problem with such an amendment is that the Federal Rules theoretically are not allowed to prescribe the contours of personal jurisdiction, because personal jurisdiction is a con- stitutional right, and therefore substantive. This argument has its roots in the Rules Enabling Act, which provides that the Federal Rules of Civil Procedure cannot “abridge, enlarge, or modify any substantive right.”120 There are several ways the Advisory Committee121 could refute this argument. First, other rules in the Federal Rules of Civil Procedure already prescribe the jurisdictional reaches of courts. Some especially glaring examples come within Rule 4. Rule 4(k), in particular, is “undoubtedly a rule of jurisdiction—rather than a rule of procedure—as it identifies circumstances in which service of process ‘establishes personal jurisdiction over a de- fendant.’”122 One obvious provision that does this is Rule 4(k)(1)(A), which, despite its seemingly unassuming wording, affirmatively establishes the jurisdictional reach of federal courts.123 However, perhaps more blatantly, Rule 4(k)(1)(B) extends personal jurisdiction in federal court over those 119 See, e.g., Fed. R. Civ. P. 23(f) (detailing special procedures for class action appeals). 120 28 U.S.C. § 2072(b). 121 The Advisory Committee is the body that evaluates proposals for amendments to the Federal Rules of Civil Procedure. 28 U.S.C. § 2077. 122 A. Benjamin Spencer, The Territorial Reach of Federal Courts, 71 FLA. L. REV. 979, 983–84 (2019) (quoting Fed. R. Civ. P. 4(k)). 123 See Walden v. Fiore, 571 U.S. 277, 283 (2014) (“[A] federal district court’s authority to assert personal jurisdiction in most cases is linked to service of process on a defendant ‘who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.’”) (quoting Fed. R. Civ. P. 4(k)(1)(A)). No. 2] KEEPING CORPORATIONS IN THE COURTS 1007 parties who could not otherwise be subject to jurisdiction,124 and thus, quite literally, “enlarge[s]” and “modif[ies]” a sub- stantive right, if the parameters of personal jurisdiction in court are to be determined as such. Rule 4(n)(2) is also a rule of jurisdiction in that it prescribes a specialized procedure which allows a court to obtain personal jurisdiction over prop- erty.125 Second, the Advisory Committee might argue that a juris- dictional provision would not be an instance of a Rule conflict- ing with the constitutional scope of due process, but instead is merely an instance of “defining due process exceptions that are afforded to class actions,” or, in other words, “defining the scope of a litigant’s due process rights in the specific context of group representative litigation.”126 This would be in line with a long history of the Supreme Court cases affirming due pro- cess exceptions and carveouts in the context of class actions and representative litigation in cases like Hansberry v. Lee127 and Philips Petroleum Co. v. Shutts.128,129 There are other constitutionally rooted procedural rules that have carveouts for class actions with respect to absent class members. For ex- ample, most circuits do not separately address the standing of absent class members in an Article III standing inquiry be- cause the absent class members’ interests are “sufficiently similar to the named party’s interests” to ensure that their interests are part of a “live case or controversy.”130 The logic 124 See Fed. R. Civ. P. 4(k)(1)(B) (“Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant who is a party under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was is- sued[.]”). 125 See Spencer, supra note 122, at 984 (describing Fed. R. Civ. P. 4(n)). 126 Wilf-Townsend, supra note 7, at 1626 (emphasis added). 127 311 U.S. 32 (1940). 128 472 U.S. 797 (1985). 129 See generally, Wilf-Townsend, supra note 7, 1626–28 (tracing the history of due process exceptions in the context of class actions). One salient difference worth acknowledging is that in this case law, the Supreme Court was determining the contours of these due process carveouts, rather than the Rules themselves mandating such carveouts. 130 Id. at 1636. 1008 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 of these carveouts is consistent with the proposal that the due process protections inherent in a properly certified class ac- tion would permit jurisdictional imputation over the claims of class members. A final refutation could be that if jurisdiction is mainly based on 4(k)(1)(A),131 which requires serving a summons on the defendant, and historical practice and procedure never re- quire absent class members to serve the defendant, then their claims should not be required to be subject to a jurisdictional analysis. In this way, the proposed modification to Rule 23 would not be “abridg[ing], enlarg[ing], or modify[ing]” the per- sonal jurisdiction of courts, but is instead merely clarifying what the Rules already prescribe in other contexts. There are two additional but minor impediments to amending the Federal Rules to permit this kind of imputation. First, the Supreme Court is the body responsible for the prom- ulgation of the Federal Rules of Civil Procedure,132 and the current Supreme Court is the doctrinal source of the jurisdic- tional limitations that have caused these problems in the first place. It may be unlikely that the Court would promulgate a Rule that would expand specific jurisdiction in the context of class actions. That said, the proposal does not directly conflict with any Supreme Court opinion, so it is still a possibility. Second, this proposed amendment would only apply in federal court because it is an amendment to the Federal Rules of Civil Procedure. While many states’ rules of procedure mirror the Federal Rules closely, it is possible that states would not nec- essarily adopt such a modification. In that case, this amend- ment would not be completely successful in rectifying the is- sue with respect to suits brought in state court.133 Finally, there is an alternative amendment to the Federal Rules: modifying Rule 4 to authorize nationwide service of 131 See supra note 123 and accompanying text. 132 28 U.S.C. § 2071. 133 Though if such an amendment would permit more expansive juris- diction in federal court, including plaintiffs from multiple states, then it might be more likely that plaintiffs would file multi-state class actions with federal subject matter jurisdiction under CAFA. No. 2] KEEPING CORPORATIONS IN THE COURTS 1009 process in all multistate class actions in federal court.134 This amendment is consistent with the Federal Rules and statutes that provide broad grants of jurisdiction associated with na- tionwide service of process.135 However, one obvious limita- tion to this approach is that, while it may be the simplest to effectuate, it would only impact jurisdiction in federal court, while many class actions, particularly in areas like products liability, are brought in state court.136 2. Judicial Opinions Doctrinally, there are numerous routes a court could take to decline extending BMS’s jurisdictional limitations to class actions. Courts that have addressed this issue generally focus on limiting the jurisdictional inquiry only to class members instead of imputing jurisdiction over the representative plain- tiffs’ claims to claims of class members.137 Two other potential doctrinal avenues that that courts have not explored use logic more in line with jurisdictional imputation, and provide more clarity in the context of the jurisdictional inquiry around class actions, even absent any modifications to the Federal Rules of Civil Procedure. i. Pendent Personal Jurisdiction One solution could be for courts to exercise a form of pen- dent personal jurisdiction over the claims of absent class members when the claims of the representatives are properly before that court. Pendent personal jurisdiction “is a judge- made doctrine grounded in the accommodation of 134 2 WILLIAM B. RUBENSTEIN, NEWBERG AND RUBENSTEIN ON CLASS AC- TIONS § 6:30 (6th ed. 2022). 135 See, e.g., Fed. R. Civ. P. 4(k)(2); 15 U.S.C. § 77v (providing for na- tionwide service of process for any violations of the Securities Act of 1933). 136 Of course, Rule 23 of the Federal Rules of Civil Procedure applies only to federal courts as well, but many states model their class action cer- tification criteria on Rule 23. By contrast, the concept of nationwide service of process is applicable only to federal courts. 137 See supra Section II.B. 1010 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 aggregation,”138 that “permits a court to hear additional claims against a defendant over whom the court has personal jurisdiction based on other related claims.”139 The doctrine primarily is based on efficiency concerns, including “judicial economy, avoidance of piecemeal litigation, and overall con- venience of the parties[.]”140 Courts hold that the doctrine does not offend due process because “[o]nce a defendant is be- fore the court, it matters little, from the point of view of pro- cedural due process, that he has become subject to the court’s ultimate judgment as a result of territorial or extraterritorial process.”141 In other words, “pendent personal jurisdiction im- poses no practical burden on a defendant already properly be- fore the forum court on a related claim.”142 When such a de- fendant already must appear in a forum to defend against such a claim, it is “reasonable to compel that defendant to an- swer other claims in the same suit arising out of a common nucleus of operative facts.”143 The requirements of typicality, commonality, and, for a damages suit, superiority, would ensure that the members’ claims are “related” enough to the representatives claims to make a per se application of pendent personal jurisdiction in the context of class actions consistent with the doctrine’s con- tours. Moreover, such a per se application would further the doctrine’s goals of efficiency by allowing a greater number of claims to be adjudicated in a single class action by one judge 138 Scott Dodson, Personal Jurisdiction and Aggregation, 113 NW. U. L. REV. 1, 22 (2018). 139 Spencer, supra note 122, at 1004. For example, if a federal court has personal jurisdiction over a defendant for antitrust claims, authorized by a nationwide-service-of-process provision, that court, following the doctrine of pendent personal jurisdiction, could choose to exercise jurisdiction over state law claims sharing a “common nucleus of operative fact” with the an- titrust claims, even if those state law claims might not have sufficient con- nection to the forum in question to uphold jurisdiction on their own. See, e.g., Action Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174 (9th Cir. 2004). 140 Action Embroidery Corp., 368 F.3d at 1181. 141 Robinson v. Penn Central Co., 484 F.2d 553, 555 (3d Cir. 1973). 142 Dodson, supra note 138, at 22. 143 Action Embroidery Corp., 368 F.3d. at 1181. No. 2] KEEPING CORPORATIONS IN THE COURTS 1011 and one jury and by avoiding piecemeal litigation by obviating the requirement to divide class actions along state lines. The doctrine, as it exists now, is not perfectly suited to ju- risdictional imputation, however. Different courts vary on the exact contours and limitations of the doctrine of pendent per- sonal jurisdiction. But most federal courts only allow pendent claim jurisdiction on state claims that share a common nu- cleus of operative fact with a federal claim that has original jurisdiction in federal court. Further, most courts do not allow pendent party jurisdiction at all.144 Both of these limitations would proscribe a per se application of the doctrine in the con- text proposed. Many class actions, even those validly in fed- eral court under CAFA, are based purely on state law. And crucially, this proposed form of pendent personal jurisdiction is purely a pendent party personal jurisdiction. One way to get around these issues—albeit a way that takes the doctrine outside of judge-made law—is for Congress to codify pendent personal jurisdiction in a statute, just as it codified pendent subject matter jurisdiction in the case of the supplemental jurisdiction statute.145 Just like in the case of the supplemental jurisdiction statute, Congress would have to preserve some elements of the common-law doctrine (in this case, the ability of courts to hear “related” claims), but over- turn other elements of it (in this case, the limitations on pen- dent party jurisdiction and the qualifications on what kinds of claims count as original jurisdiction onto which the related claims can be appended). With such a statutory clarification in place, judges could clearly and validly apply the doctrine to the claims of class members when the claims of class repre- sentatives have proper original jurisdiction. ii. Ford’s “Relate To” BMS’s limitations of specific jurisdiction are based on the case’s interpretation of the “arise out of or relate to” 144 See generally, Louis J. Capozzi III, Relationship Problems: Pendent Personal Jurisdiction After Bristol-Myers Squibb, 11 DREXEL L. REV. 215, 224–239 (2018). 145 See 28 U.S.C. § 1367. 1012 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 requirement for specific jurisdiction146 that originated in In- ternational Shoe.147 The Supreme Court’s subsequent, and most recent, personal jurisdiction opinion, Ford Motor Co. v. Montana, reinvigorated the interest in bifurcating the re- quirements of “arise out of” and “relate to.”148 Permitting ju- risdiction over claims that merely “relate to” the defendant’s contacts with the forum state—as opposed to requiring that these claims strictly “arise out of” those contacts—loosens the required nexus between the defendant’s contact with the fo- rum and claims that may be validly heard by a court.149 As applied to class actions, the proposed judicial reasoning would be that BMS, when read together with Ford, would not restrict class actions based on the claims of absent class mem- bers because satisfying the requirements of Rule 23 neces- sarily would ensure that the absent class members’ claims “re- late to” the defendant’s conduct in the forum that gave rise to jurisdiction over the class representatives’ claims. In other 146 Bristol-Myers Squibb Co. v. Superior Ct. of Cal., 582 U.S. 255, 262 (2017). 147 International Shoe Co. v. State of Wash., 326 U.S. 310, 319 (1945) (“But to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations; and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue[.]”) (emphasis added). 148 Ford Motor Co. v. Montana Eighth Judicial District, 141 S.Ct. 1017, 1026 (2021). The idea of bifurcating “arise out of” and “relate to” originated in Justice Brennan’s dissent in Helicopteros Nacionales de Colombia, S.A. v. Hall. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 420, 425–27 (1984) (Brennan, J., dissenting). 149 See Ford, 141 S.Ct. at 1026 (“The first half of that standard asks about causation; but the back half, after the ‘or,’ contemplates that some relationships will support jurisdiction without a causal showing.”). For ex- ample, in Ford itself, the Court upheld personal jurisdiction over Ford for products liability claims associated with vehicles that were not purchased in the forum states in question—thus lacking strict causality—on the grounds that the automobile accidents were sufficiently related to Ford serving a market in those states. Id. at 1028–30. No. 2] KEEPING CORPORATIONS IN THE COURTS 1013 words, the “affiliation” or “relationship” that Ford requires150 to uphold “relate to” in this context would be provided by the relationship that Rule 23 requires between the claims of the class representatives and the absent class members. Like with pendent personal jurisdiction, the requirements of typicality and commonality would do most of the work in ensuring the adequate relatedness.151 This line of reasoning is consistent with Ford’s repeated admonition that specific jurisdiction does not require a “strict causal relationship.”152 This reasoning is also consistent with Ford’s view that jurisdiction is reasonable when a corporate defendant can “structure its primary conduct”153 to exploit a state’s business. Finally, such a reading would not be in ten- sion with BMS itself, in that here, Rule 23 is assuring that “relatedness” is satisfied, whereas in a mass action, no such built-in protection exists. One could argue that this reasoning is just a limitation on the jurisdiction inquiry as opposed to a form of jurisdictional imputation: if Rule 23 is satisfied, the court does not have to look to the claims of absent class members at all. But the ar- gument actually is that satisfying the Rule 23 class certifica- tion requires creates an adequate nexus between the defend- ant’s contacts and the absent class members’ claims. Thus, the court is not declining to analyze jurisdiction over the absent class claims—an approach that in and of itself might be ques- tionable in light of BMS. Instead, the court is affirmatively concluding that there is necessarily jurisdiction over those claims. 150 Id. at 1024, 1025. 151 It is worth noting that for states that have significantly more lenient requirements for class certification—particularly with respect to common- ality, typicality, and predominance—then a class certified under one of those states’ rules may not necessarily satisfy this “relatedness” requirement. 152 Ford, 141 S.Ct. at 1026. 153 Id. at 1030 (quoting World-Wide Volkswagen, 444 U.S. at 297). 1014 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 C. Just Corporations or All Defendants? One final consideration is whether this jurisdictional im- putation should apply to just corporations, or to all defendants in general. There are numerous examples of purely procedural rules that treat corporations and persons differently. These examples exist in statutorily created procedural rules. For ex- ample, the venue statute154 provides different definitions of “residency” for natural personal and corporations.155 These rules also exist in common-law procedural doctrines, such as the concept of “domicile,” for which federal courts use different tests as applied to persons and corporations.156 However, creating a carveout in the context of aggregate litigation might cause some logistical problems. For example, if a suit were brought against a corporation for products lia- bility, and then the plaintiffs wanted to join one of the direc- tors or officers of the company using Rule 20,157 they may be unable to if these proposed jurisdictional guidelines regarding class actions only applied to corporate defendants. Such a carveout may also be largely unnecessary given that corpora- tions are almost always the defendants in class actions, and, from a normative perspective, there is a strong argument that if an individual were to have harmed enough people that a class could be certified against him, and if he purposefully availed himself of a state where he did not reside to the extent that specific jurisdiction could be exercised over him,158 then it would be reasonable to require him to defend against a class in that forum. That being said, even extending this jurisdic- tion imputation to all defendants would likely only make a dif- ference for corporate defendants in all but the most unusual cases. 154 28 U.S.C. § 1391. 155 See 28 U.S.C. § 1391(c). 156 Compare Sheehan v. Gustafson, 967 F.2d. 1214 (8th Cir. 1992), with Hertz Corp. v. Friend, 559 U.S. 77 (2010). 157 Fed. R. Civ. P. 20. 158 This consideration is relevant because none of the proposed meth- ods of jurisdiction imputation would matter if the suit were brought in the defendant’s home state.