Further Thoughts on Personal Jurisdiction for Helms-Burton Act Claims

Photo by Alexander Kunze on Unsplash

Last week, Bill Dodge reported on the Eleventh Circuit’s recent decision in Rodriguez v. Imperial Brands, PLC, in which the court dismissed Helms-Burton Act claims against two British defendants for lack of personal jurisdiction. Bill critiqued the court’s application of Fuld v. Palestine Liberation Organization (2025), but not the decision’s ultimate outcome.

The difficulty with applying Fuld is that the Supreme Court combined different lines of reasoning to reach a case-specific result and then disclaimed relying on any one approach. This cobbled together a majority at the Supreme Court, but it leaves a lot of deciphering and potential paradoxes for the lower courts. I commend judges like Judge Newsom who are thoughtfully puzzling through Fuld’s implications. In this post, I continue the conversation with an eye towards clarifying Fuld’s application in future cases. In particular, this post addresses the possible difference between Federal Rule of Civil Procedure 4(k)(1)(C) and 4(k)(2), whether reasonableness is required, and how to assess reasonableness under Rule 4(k)(2).

Connections to the United States

Bill described both the underlying dispute and the Helms-Burton Act in his prior post. I want to focus here on what connections the dispute has with the United States.

The Rodriguez plaintiffs claim ownership to a factory and adjacent building in Cuba that the Cuban government expropriated after the Cuban Revolution. The property has since been used by Habanos, a Cuban corporation, to make Cuban cigars. Between 2007 and 2020, Imperial (a British corporation) indirectly held (via a Spanish acquisition) a 50% ownership interest in Habanos. Habanos or Imperial hired WPP, a British holding company with dual headquarters in London and New York, to market Habanos cigars with the help of WPP’s U.S. advertising agency subsidiaries. Habanos cigars cannot be sold legally in the United States, however, and the plaintiffs acknowledged that WPP’s U.S. operations “were not intended to reap profit from trafficking in the United States.”

The question in Rodriguez was whether Imperial and WPP are subject to personal jurisdiction in the United States for a Helms-Burton Act claim. The Helms-Burton Act defines “trafficking” in expropriated property to include “engag[ing] in a commercial activity using or otherwise benefitting from confiscated property” and “profit[ing] from[] trafficking . . . by another person,” which would seem to extend to Imperial’s and WPP’s relationship with Habanos.

Like the statute at issue in Fuld, then, the Helms-Burton Act creates a cause of action for U.S. nationals regarding conduct that may have occurred entirely outside the United States. Like the defendants in Fuld, WPP has purposeful connections in the United States that may or may not be connected to the dispute. And also like Fuld, the purpose behind the Helms-Burton Act—to undermine the current Cuban regime—implicates foreign policy and national security decisions reserved for the political branches. But unlike the statute at issue in Fuld, the Helms-Burton Act does not specifically address personal jurisdiction, nor does it authorize nationwide or worldwide service of process. That means that, while the assertion of personal jurisdiction in Fuld was analyzed under Rule 4(k)(1)(C), the assertion of personal jurisdiction in Rodriguez must satisfy Rule 4(k)(2).

The Eleventh Circuit held that Fuld applies equally to Rule 4(k)(1)(C) and Rule 4(k)(2), but that Fuld requires the exercise of personal jurisdiction to be reasonable. Bill disagreed on both points: he argued that Fuld applies only if Congress has made a “considered judgment” regarding personal jurisdiction, which is true in some 4(k)(1)(C) cases but not in 4(k)(2) cases, and that the reasonableness requirement may not apply if Congress has specified the scope of personal jurisdiction. I think the Eleventh Circuit has the better reading of Fuld, but I also agree with Bill that the court’s analysis of reasonableness was unsatisfying.

Reasonableness

Bill is correct that Fuld disclaimed deciding whether Fifth Amendment personal jurisdiction is checked by reasonableness. But the Eleventh Circuit was not wrong to nonetheless discern that requirement from Fuld’s reasoning. As I have argued elsewhere, reasonableness pervades the Supreme Court’s analysis in Fuld, even though the Supreme Court also disclaimed deciding whether the Fifth Amendment imposes no limit on federal personal jurisdiction.

By leaving the question of reasonableness open, the Supreme Court invited the lower courts to decide it for themselves. Adopting a reasonableness requirement for the Fifth Amendment is the less disruptive path forward: the originalist theory that there is no due process check on Congress’s power to assert personal jurisdiction rests on shaky evidence (as I have argued in prior posts), and reasonableness is a familiar inquiry for the lower courts.

The Eleventh Circuit’s application of reasonableness in Rodriguez, however, is less than compelling (a point on which I agree with Bill). I think the reason why is that the court used reasonableness as a backdoor for addressing two other issues: the relationship between Rule 4(k)(1)(C) and Rule 4(k)(2), and the limits of prescriptive jurisdiction.

Rule 4(k)(1)(C) vs. Rule 4(k)(2)

Fuld was decided under Rule 4(k)(1)(C) because the statute at issue in Fuld specifically authorized the exercise of personal jurisdiction. The Helms-Burton Act does not. Instead, the Rodriguez plaintiffs invoked Rule 4(k)(2), which authorizes the federal courts to exercise personal jurisdiction over cases arising under federal law if “exercising jurisdiction is consistent with the the United States Constitution and laws.” When Congress adopted Rule 4(k)(2), it was widely understood that the constitutional limits for federal personal jurisdiction was the International Shoe test, just evaluated on a nationwide scale. The Eleventh Circuit in Rodriguez reasoned that Fuld wiped away that analysis. Bill thinks this was a mistake: that Fuld only creates space for Congress in its “considered judgment” to depart from the International Shoe baseline, and that Rule 4(k)(2) does not reflect such “considered judgment.”

The problem is that Fuld spoke of Fifth Amendment due process limits, not Rule 4(k)(1)(C) specifically: for example, that “the Due Process Clause of the Fifth Amendment necessarily permits a more flexible jurisdictional inquiry commensurate with the Federal Government’s broader sovereign authority” (emphasis added). And whatever Congress intended when it approved Rule 4(k)(2), we live in a textualist era where the words of the operable text control. Now that the Supreme Court has held that the Constitution does not require federal assertions of personal jurisdiction to satisfy the Fourteenth Amendment’s minimum contacts test, it is hard to read Rule 4(k)(2) as still requiring application of that test.

So I think the Eleventh Circuit was correct that Fuld’s rejection of the minimum contacts test extends to Rule 4(k)(2). But it still emphasized the lack of personal jurisdiction provisions in the Helms-Burton Act when assessing reasonableness: in particular, that the Helms-Burton Act is “much broader” than the Fuld statute; “contains no jurisdictional predicates,” unlike the Fuld statute; is not targeted at specific defendants; and does not provide adequate notice to “run-of-the-mill private defendants.” I don’t love how this sounds like a call for statutes to target disfavored defendants—but what I think the court was really getting at was this: if a statute lacks jurisdictional or service provisions explicit enough to fall under Rule 4(k)(1)(C), it will likely be unreasonable to apply it to defendants who don’t have related contacts with the United States.

Putting this together: Fuld’s understanding of the Fifth Amendment applies equally to Rule 4(k)(2), but it also requires some sort of reasonableness analysis. Within that reasonableness analysis, the same lack of explicit congressional direction that requires resort to Rule 4(k)(2) instead of Rule 4(k)(1)(C) will also indicate that the U.S. interest in the dispute is not strong enough to overcome a lack of related contacts on the part of the defendant. That reasoning largely limits Fuld’s more flexible inquiry to Rule 4(k)(1)(C).

Adjudicative vs. Prescriptive Jurisdiction

The Eleventh Circuit’s analysis of the plaintiffs’ and defendants’ interests as part of its reasonableness analysis also left something to be desired. As Bill pointed out, the plaintiffs have a strong interest in litigation in the United States, given that they are U.S. nationals and that they can only pursue these claims in U.S. courts. As for the defendants, the court argued (among other points) that WPP’s presence in the United States was significantly less than that of the PLO and PA in Fuld. I find that assertion odd, as the WPP has a New York office in which it conducted general business—unlike the PLO, which has no presence in the United States, and the PA, which maintained that its New York office was limited to diplomatically protected UN business. I would thus have thought WPP has more extensive contacts with New York and that there is a greater connection between the work of its New York office and the services it provided Habanos than there was between what the PA did in its UN mission and its payments overseas to convicted terrorists.

But that quibble aside, what I think was really driving the Eleventh Circuit’s reasonableness analysis were choice-of-law principles: that the U.S. interest in the application of its law to attenuated overseas conduct is weak and the risk of regulatory conflict is strong. (As the court noted, the United Kingdom prohibits its corporations (like Imperial and WPP) from complying with the Helms-Burton Act or defending Helms-Burton Act claims in the United States without prior governmental approval.) That is, this is as much a question of prescriptive jurisdiction (the reach of U.S. law) as it is about adjudicative jurisdiction (the reach of U.S. judicial authority).

As other courts have been exploring, there is a fundamental overlap between the post-Fuld limits on federal personal jurisdiction and the extraterritorial reach of U.S. laws. The federal courts have devised a test for due process limits on the reach of criminal statutes, for example, that asks whether there is a nexus to the United States such that application of the law would not be arbitrary or fundamentally unfair. Personal jurisdiction’s reasonableness analysis asks similar questions, though with a greater role for the plaintiff’s interests.

The difficulty is that both of these inquiries—the outer limits of federal personal jurisdiction and the reach of extraterritorial statutes—are currently undertheorized. While the Roberts Court has produced a very muscular presumption against extraterritoriality, it has not addressed what limits apply to statutes that rebut the presumption, as the Helms-Burton almost assuredly does. And Fuld leaves many questions unanswered. The Helms-Burton Act is the poster-child for the dilemma now facing federal courts: if broadly written statutes rebut the presumption against extraterritoriality, and the Fifth Amendment does not require foreign defendants to have related contacts with the United States, is there any limit on the reach of U.S. law? I agree with the Eleventh Circuit that the answer should still be “yes.” But only the Supreme Court will be able to tell us for sure.