Mallory's Long Reach: Defeating Consent-by-Registration Jurisdiction in a Multi-State Practice

For nearly a decade, a multistate corporation could rely on a clear rule: it could be sued for unrelated claims only where it was "at home," meaning its state of incorporation or principal place of business. That certainty has eroded. The Supreme Court's decision in Mallory v. Norfolk Southern Railway Co. revived a much older theory under which a corporation can be subjected to general jurisdiction in any state where it has registered to do business, regardless of where the parties reside or the claim arose.

For a company operating across many states, the implication is significant. Registration, an ordinary and often mandatory condition of doing business, may now be treated as consent to be sued there on any claim. Yet Mallory's practical scope remains unsettled, and the decision left open a constitutional defense that defendants should be prepared to deploy. This paper explains the doctrine, maps the emerging state-by-state landscape, and sets out a framework for resisting forum-shopped suits in states where neither the parties nor the claims belong.

From At-Home to Consent: What Mallory Changed

The modern framework of personal jurisdiction begins with International Shoe Co. v. Washington, 326 U.S. 310 (1945), which permitted jurisdiction where a defendant had minimum contacts with the forum such that suit would not offend traditional notions of fair play and substantial justice. From that framework grew the distinction between specific jurisdiction, tied to claims arising from forum contacts, and general jurisdiction, allowing suit on any claim.

In Daimler AG v. Bauman, 571 U.S. 117 (2014), and BNSF Railway Co. v. Tyrrell, 581 U.S. 402 (2017), the Court sharply confined general jurisdiction to the forums where a corporation is "at home." In-state business activity alone, the Court held, does not support general jurisdiction over unrelated claims. For a decade, defendants relied on this rule to defeat suits brought far from home.

Mallory unsettled that reliance. The plaintiff, a Virginia resident, sued his former employer, a Virginia corporation, in Pennsylvania for injuries sustained in Ohio and Virginia. The sole basis for jurisdiction was that the company had registered to do business in Pennsylvania under a statute requiring registrants to consent to suit on any cause of action. In a fractured 5-4 decision, the Court held that this consent-by-registration scheme did not violate the Due Process Clause.

The majority did not rest on International Shoe at all. It reached back to Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917), which had upheld a similar consent-by-registration regime, and held that Pennsylvania Fire remained good law and controlled. The contacts-based test, the majority reasoned, governs in the absence of consent. Where a corporation has consented, due process does not require a separate minimum-contacts showing.

The Defense Mallory Left Open

Mallory resolved only the due process question. It expressly left open a separate constitutional challenge that a majority of the Justices appeared to regard as substantial. That challenge is the dormant Commerce Clause, and it is the most important defense the decision preserved.

Justice Alito, who supplied the fifth vote on due process, wrote separately to question whether a consent-by-registration statute can survive Commerce Clause scrutiny.

There is a good prospect that Pennsylvania's assertion of jurisdiction here, over an out-of-state company in a suit brought by an out-of-state plaintiff on claims wholly unrelated to Pennsylvania, violates the Commerce Clause.

— Mallory v. Norfolk Southern Railway Co., 600 U.S. 122 (2023) (Alito, J., concurring)

The theory runs as follows. A statute conditioning market access on consent to all-purpose jurisdiction can be seen to discriminate against interstate commerce, because it forces out-of-state companies to accept exposure to unrelated suits in exchange for entering the market, while in-state companies face no comparable burden to operate elsewhere. It can also be seen to impose an undue burden on interstate commerce, requiring an out-of-state company to defend claims with no connection to the forum, with no countervailing local interest to justify it.

Because the Court remanded Mallory for consideration of this question, and because four dissenting Justices would have struck the statute on due process and federalism grounds, a defendant facing consent-by-registration jurisdiction enters a landscape where five Justices have signaled doubt about the practice on one ground or another. That alignment is the foundation of the preserved defense.

A State-by-State Battleground

The practical reach of Mallory depends entirely on state law, because the decision validates consent-by-registration only where a state's statute actually demands that consent. This makes the analysis jurisdiction-specific, and the landscape is still forming.

The explicit-consent states. Pennsylvania's statute is distinctive precisely because it expressly conditions registration on consent to general jurisdiction over any cause of action. Few states have historically gone so far. The dissent in Mallory observed that most registration regimes do not mandate consent to all-purpose jurisdiction for claims arising elsewhere, which is what makes Pennsylvania's statute the exception rather than the norm.

The judicial-construction states. Some states reach a similar result without an explicit statutory consent provision, through judicial interpretation of their registration requirements. Georgia is the leading example, its courts having construed registration to support general jurisdiction. In these states, the defense must engage the specific judicial gloss on the statute, not merely its text.

The open-question states. In the wake of Mallory, the central question in many states is whether the registration statute, properly construed, demands consent to general jurisdiction at all. Many registration statutes stop short of Pennsylvania's explicit threshold. Where a statute merely requires registration and appointment of an agent for service, without conditioning that registration on consent to suit on unrelated claims, a defendant has a strong argument that no Mallory-style consent occurred.

A Framework for Resisting Registration-Based Jurisdiction

Defeating a consent-by-registration assertion requires a sequenced approach. Each step narrows the path by which a plaintiff seeks to establish jurisdiction.

Test whether the statute actually compels consent. The threshold question is statutory. Does the forum's registration law, by its terms or by binding construction, condition registration on consent to general jurisdiction over unrelated claims? Many do not. Where the statute requires only registration and a service agent, a defendant should argue that Mallory is inapposite because no consent to all-purpose jurisdiction was ever exacted.

Raise the dormant Commerce Clause challenge. Where the statute does compel consent, the defense Mallory preserved comes to the fore. The argument that the statute discriminates against or unduly burdens interstate commerce, with no legitimate local interest in adjudicating wholly unrelated disputes, is the live constitutional vehicle. It should be developed with the specific operational burdens the forum's regime imposes on the defendant.

Preserve the federal question for appeal. Because the constitutionality of these statutes is unsettled and likely to return to the Supreme Court, the Commerce Clause challenge should be raised and preserved at every stage. Our appellate practice works with trial teams to frame the federal question cleanly, so that a defendant is positioned to benefit from the further appellate development this issue will receive.

Consider the registration footprint before suit. The most effective jurisdictional defense often begins before any complaint is filed. A multistate company should understand, as a matter of deliberate planning, where it is registered, which of those states have explicit-consent or judicially-construed statutes, and what its registration obligations actually require. Our pre-litigation counseling teams help companies assess their registration footprint against the evolving map, so that exposure to all-purpose jurisdiction is a considered position rather than an inadvertent one.

Conclusion

Mallory reopened a path to general jurisdiction that the at-home doctrine had largely closed, and it did so in a way that rewards plaintiffs willing to shop for the right forum. But the decision is narrower than its headline suggests. It validates consent-by-registration only where a state's law genuinely compels that consent, and it left intact a dormant Commerce Clause defense that a majority of the Court appeared to view as serious. For a multistate defendant, the task is to know the map, to test whether consent was actually exacted in the forum at issue, and to preserve the constitutional challenge the Supreme Court invited. The defendants best positioned are those who treat their registration footprint as a strategic matter before suit, not a surprise after it.