Carol Rice Andrews, The Personal Jurisdiction Problem Overlooked In The National debate About “Class Action Fairness”, 58 S.M.U. L. Rev. 1313 (2005).
University of Alabama School of Law Professor Carol Rice Andrews asserts in her recent article published in the SMU Law Review’s Fall 2005 edition that the issue of personal jurisdiction was largely ignored by the drafters of the Class Action Fairness Act of 2005. She declares that both CAFA itself and the national debate over class action fairness have overlooked a fundamental issue: “Whether any court (state or federal) may properly assert personal jurisdiction over a defendant on all claims of the nationwide class, when only a small portion of the class claims arise out of the defendant’s forum state activities.”

Professor Andrews implies that attorneys defending multi-state class actions may have missed the ball on this issue, which the Civil Procedure professor finds to be “an odd oversight,” but then acknowledges that, if they have, it is perhaps rightly so, given that a successful due process challenge to the jurisdiction of a state court can severely limit the class. While the potential for success on a personal jurisdiction challenge obviously depends on the facts of the dispute, class action practitioners may wish to take note of Professor Andrews’ conclusion regarding state court class actions: “State court personal jurisdiction over the defendant in nationwide class actions is at best uncertain and more likely unconstitutional, no matter the theory of jurisdiction.”
But what about the effect of CAFA? Professor Andrews recognizes that CAFA primarily addressed federal subject matter jurisdiction, but believes that Congress could have resolved any issue of federal personal jurisdiction by authorizing nationwide jurisdiction in specified class actions. Professor Andrews would allow Congress a second bite at the apple as she now lobbies for a statute authorizing “federal courts to assert personal jurisdiction to correspond to their new subject matter jurisdiction over nationwide class actions. This statute should not be more politically charged than CAFA itself. It would merely effectuate the aim of CAFA, which was to enable federal courts to hear nationwide class actions.”
Professor Andrews does not foresee any similar easy statutory fix for the state court jurisdictional problems, since the personal jurisdiction issues in state court emanate from the Constitution. However, she believes that CAFA somewhat minimizes the problem in that its expanded federal jurisdiction allows an increased number of class actions to be removed to federal court, thereby reducing the number of class actions in state court, and those class actions remaining in state courts will simply have one more issue to litigate.