Class Actions, Personal Jurisdiction, and Due Process: Implications for Mass Tort Litigation

One of the most overlooked but nonetheless enduring legacies of fifty years of International Shoe jurisprudence has been the almost obsessive judicial concern with defendants' due process. Certainly this is not surprising ― Justice Stone's opinion focuses exclusively on the due process requirements for subjecting a nonresident corporate defendant to an in personam judgment. In the half century since International Shoe, state and federal courts have busied themselves with delineating the contours of due process in relation to assertions of personal jurisdiction over nonresident defendants. Essentially for nearly fifty years, state and federal courts have largely been unconcerned with plaintiffs' due process in relation to personal jurisdiction. The Supreme Court ― on very few occasions ― has offhandedly noted that International Shoe minimum contacts jurisprudence does not extend to plaintiffs. It was not until 1985 that the Supreme Court, when directly confronted with the question in Phillips Petroleum Co. v. Shutts, finally turned its attention to consideration of plaintiffs' due process. Phillips Petroleum Co. v. Shutts is as important a progeny of International Shoe as the myriad decisions worrying over the elaboration of defendants' minimum contacts jurisprudence, confronting the issue whether considerations of plaintiffs' due process are equally as important as defendants'. While the Court in Shutts analyzed due process requirements for opt-out class actions, it left open the more troubling question of due process requirements for equitable, hybrid, mandatory class actions. This issue resurfaced on the 1994 Supreme Court docket in Ticor Title Insurance Co. v. Brown, but the Court cryptically declined to supply any answers to this difficult problem.8 Fifty years of International Shoe jurisprudence has intensively scrutinized nearly every conceivable wrinkle relating to defendants' due process. At the end of this century, however, the most compelling jurisdictional issue relates not to defendants' due process but rather to the requirements of plaintiffs' due process, especially in mass tort litigation. The issue of plaintiffs' due process has become particularly compelling in those mass tort cases where the preferred procedural means is the mandatory settlement class. In essence, mandatory mass tort settlement classes embody the problem presented in Ticor Title, and until the Supreme Court, Congress, or the Advisory Committee on Civil Rules addresses the problem of the requirements of plaintiffs' due process, these settlement classes will remain vulnerable to due process challenge. This Article sets forth the issues surrounding plaintiffs' due process, personal jurisdiction, and mandatory class actions, exploring the implications for mass tort litigation. Part I discusses these issues as manifested in Ticor Title Insurance Co. v. Brown against the backdrop of Phillips Petroleum Co. v. Shutts and International Shoe minimum contacts jurisprudence. Part II briefly surveys the sparse judicial consideration of these problems, concluding that the Supreme Court seems to have suggested that the due process protections for nonresident class members are somehow different or significantly lower than those needed for defendants because of the inherent protections built into the class-action device. Part III then discusses possible analytical approaches to plaintiffs' due process concerns. The Article concludes that if the central due process concern of personal jurisdiction derives from the doctrine of res judicata and the binding effects of judgments, then the requirements of plaintiffs' due process in mandatory class actions ought to parallel those for defendants. Furthermore, the historical distinctions underlying the 1966 Rule 23 revision that resulted in mandatory and non-mandatory class actions may have decreasing relevance for late twentieth century complex litigation. Therefore, modern mixed-relief mandatory class actions that do not provide absent class members with ample due process protections may be constitutionally deficient. Conversely, these class actions may be redeemed by use of alternative due process protections. To satisfy constitutional requirements, mandatory class-action procedure needs to include, at a minimum, notice and an opportunity to be heard in the litigation. Moreover, in the absence of a universal opt-out requirement for all class actions, courts might instead require procedures for mandatory classes that provide a substantial equivalent to an exclusion right. A more controversial notion is that complete due process for absent class members might require all class actions to provide an opt-out provision, a due process protection that would require the Advisory Committee on Civil Rules or Congress to reformulate the current class-action rule. Providing such a uniform opt-out rule for all class-action procedure, however, may subvert the goals and utility of this central aggregative litigation device. Hence, at the close of the twentieth century, the same sovereignty and fairness concerns that have animated International Shoe and its progeny for fifty years have now been recast in the compelling debate over individual versus aggregate justice.