CCL filed a petition for rehearing en banc in the federal Fifth Circuit, asking the Court to overturn an in-circuit precedent that erroneously applies a Fourteenth Amendment analysis to a federal case, in which the Fifth Amendment's due-process clause applies.

     In Douglass v. Nippon Yusen Kabushiki Kaisha, two weeks ago, a Fifth Circuit panel affirmed a district court ruling that there was no jurisdiction over the Japanese corporate defendant, but only did so because of the "rule of orderliness," which prohibits one panel of the court from overruling an earlier panel's precedent. The opinion, and a special concurrence by two of the three judges on the panel, made clear that it believed CCL's argument on behalf of the plaintiffs was correct. The plaintiffs are U.S. Navy sailors and their families who sued over deaths and injuries sustained on the U.S.S. Fitzgerald, a U.S. Navy destroyer, when a container ship under the defendant's control crashed into the destroyer's hull.

    In a 2016 case, a panel of the court interpreted due-process requirements to impose a general jurisdiction analysis to Federal Rule of Civil Procedure 4(k)(2), which meant that the Japanese company, despite a century-old presence in the United States, had to be incorporated in this country or have its headquarters here to be susceptible to personal jurisdiction on a federal cause of action brought in federal court. CCL had argued that the 2016 decision was dicta and not precedential and that is was wrong as a matter of law, because, among other things, the due process analysis would render the rule unconstitutional in all conceivable applications. Instead, it argued a national-contacts rule was applicable, as previous Fifth Circuit precedent had held.

    With the filing of the petition asking the entire Fifth Circuit to overrule the wayward 2016 precedent, the court's mandate was stayed. The next step, if the Court decides to consider taking up the matter, is for it to request a response from the defendant.

    CCL's Robert S. Peck wrote the petition and represents the plaintiffs, along with the Koonz McKinney law firm of Washington, DC.