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Notes on Consent

Domestication Statutes.

Under so-called “domestication” or “registration” statutes, many states require foreign corporations to register and/or appoint an in-state agent for service of process in order to do business in the state.  Courts have disagreed about the extent to which compliance with such statutes may, consistent with Due Process requirements, serve as “consent” to general personal jurisdiction in the forum.

For example, in Knowlton v. Allied Van Lines, Inc., 900 F.2d 1196 (8th Cir. 1990), the court determined that compliance with Minnesota’s registration statute “gives consent to the jurisdiction of Minnesota courts for any cause of action, whether or not arising out of activities within the state.”  Id. at 1200.

By contrast, in Ratliff v. Cooper Laboratories, Inc., 444 F.2d 745 (4th Cir. 1971), the court rejected the (out-of-state) plaintiffs’ efforts to sue the (out-of-state) defendant corporation in South Carolina court in order to take advantage of the state’s favorable statute of limitations.  According to the court, although the corporation had complied with South Carolina’s registration statute and maintained five salesmen into the state, “[t]he principles of due process require a firmer foundation than mere compliance with state domestication statutes” in order to subject a defendant to personal jurisdiction.

Electronic Forum Selection Clauses.

To what extent should Bremen and Carnival’s deference to forum-selection clauses apply in the context of electronic forum-selection clauses?  In particular, how should courts treat such clauses in “clickwrap” or “browsewrap” agreements, where the terms of the contract are found in a pop-up window or a hyperlink?  See Das, Forum-Selection Clauses in Consumer Clickwrap and Browsewrap Agreements and the “Reasonably Communicated” Test, 77 Wash. L. Rev. 481, 482 (2002).


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August 22, 2013

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I. Glenn Cohen

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