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Second Circuit Review: Re-examining the Contours of Consent-Based Personal Jurisdiction
June 26, 2024
Litigation of counsel Martin Flumenbaum and firm Chairman Brad Karp’s latest Second Circuit Review column, “Re-examining the Contours of Consent-Based Personal Jurisdiction,” appeared in the June 26 issue of the New York Law Journal. The authors discuss Fuld v. PLO, in which the Second Circuit denied a petition to rehear en banc a pair of panel decisions addressing whether federal courts can exercise personal jurisdiction over foreign entities in suits brought under the Promoting Security and Justice for Victims of Terrorism Act of 2019. This appeal arose from two cases in which victims, or families of victims, of terrorist attacks in Israel sued the Palestine Liberation Organization and the Palestinian Authority under the Anti-Terrorism Act. After the Second Circuit ruled against plaintiffs twice on personal jurisdiction grounds, Congress enacted the PSJVTA, which expressly defines “defendant” to include the Palestine Liberation Organization, the Palestinian Authority, and any successor or affiliate, and mandates that such defendants “shall be deemed to have consented to personal jurisdiction” if they make payments to designees or families of terrorists whose acts injured or killed Americans; or undertake certain activity within the United States. The plaintiffs argued that the PSJVTA established personal jurisdiction on both grounds, but the district court disagreed, holding the PSJVTA unconstitutional. The Second Court affirmed, maintaining that the PSJVTA’s predicate activities cannot constitute consent as they fail to confer “any rights or benefits on the defendants in return,” and as a result, the PSJVTA’s provision for “deemed consent” exceeded the limits of the Due Process Clause of the Fifth Amendment. This case appears poised for Supreme Court review, raising issues on the limits of personal jurisdiction and whether the Due Process Clauses of the Fifth and Fourteenth Amendments impose different due process limits. Litigation associate David Hopen assisted in the preparation of the column.
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