Over 130 foreign banks maintain New York branches, agencies or representative offices, registered with the New York Department of Financial Services (DFS).1 These banks’ presence has long subjected them to general personal jurisdiction, exposing them to suit in New York for transactions anywhere in the world, to the same extent as New York-based banks. The U.S. Supreme Court’s 2014 decision in Daimler AG v. Bauman,2 applied to foreign banks by the Second Circuit in Gucci America v. Bank of China,3 changed that: “Doing business” no longer justifies general jurisdiction over a foreign bank.
This change has focused attention on a possible alternative theory of general jurisdiction, based on “consent.” Specifically, does a foreign bank consent to be sued in New York for all purposes by appointing DFS’s Superintendent as agent for service of process, as the Banking Law requires for it to operate in New York?4 No. The legislative text and history limit the scope of any such “consent” jurisdiction to causes of action arising from transactions of the foreign bank’s New York office. And if the law were otherwise, exercising general jurisdiction over foreign banks might well violate the due process rights of foreign corporations recognized in Daimler and Gucci.
The Demise of ‘Doing Business’
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