FLORENCE MUSSAT, M.D., S.C., on behalf of itself and all others similarly situated v. Iqvia, Inc .

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1204
F LORENCE M USSAT, M.D., S.C., on behalf of itself and all others
similarly situated,
Plaintiff-Appellant,
v.
IQVIA, INC ., et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17 C 8841 — Virginia M. Kendall, Judge.
____________________
A RGUED S EPTEMBER 27, 2019 — DECIDED M ARCH 11, 2020
____________________
Before WOOD, Chief Judge, and K ANNE and B ARRETT, Circuit
Judges.
WOOD, Chief Judge. Florence Mussat, an Illinois physician
doing business through a professional services corporation,
received two unsolicited faxes from IQVIA, a Delaware cor-
poration with its headquarters in Pennsylvania. These faxes
failed to include the opt-out notice required by federal statute.
Mussat’s corporation (to which we refer simply as Mussat)

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2 No. 19-1204
brought a putative class action in the Northern District of Illi-
nois under the Telephone Consumer Protection Act, 47 U.S.C.
§ 227, on behalf of itself and all persons in the country who
had received similar junk faxes from IQVIA in the four previ-
ous years. IQVIA moved to strike the class definition, arguing
that the district court did not have personal jurisdiction over
the non-Illinois members of the proposed nationwide class.
The district court granted the motion to strike, reasoning
that under the Supreme Court’s decision in Bristol-Myers
Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), not just the
named plaintiff, but also the unnamed members of the class,
each had to show minimum contacts between the defendant
and the forum state. Because IQVIA is not subject to general
jurisdiction in Illinois, the district court turned to specific ju-
risdiction. Applying those rules, see Walden v. Fiore, 571 U.S.
277, 283–86 (2014), it found that it had no jurisdiction over the
claims of parties who, unlike Mussat, were harmed outside of
Illinois. We granted Mussat’s petition to appeal from that or-
der under Federal Rule of Civil Procedure 23(f). We now re-
affirm the Rule 23(f) order, and we hold that the principles
announced in Bristol-Myers do not apply to the case of a na-
tionwide class action filed in federal court under a federal
statute. We reverse the order of the district court and remand
for further proceedings.
I
Before examining the personal-jurisdiction issue, we must
assure ourselves that this appeal falls within the scope of Rule
23(f), which “permit[s] an appeal from an order granting or
denying class-action certification under this rule.” Fed. R. Civ.
P. 23(f). IQVIA argues that the order before us neither grants
nor denies class status and thus it is an ordinary interlocutory

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No. 19-1204 3
order that must await final judgment before review is possi-
ble. See 28 U.S.C. § 1291. It is true that the district court’s order
does not say, in so many words, that it is granting or denying
class certification. But that is not the end of the story. Here is
what the district court did: pursuant to Federal Rule of Civil
Procedure 12, it granted IQVIA’s motion to strike Mussat’s
class definition, insofar as Mussat proposed to assert claims
on behalf of people with no contacts to Illinois. IQVIA ob-
serves that Mussat is still free to seek certification of an Illi-
nois-only class. More fundamentally, it contends that the
plain language of Rule 23(f) forecloses jurisdiction over this
appeal because the order responded to a motion to strike, not
a motion to certify (or decertify) a class. Because Rule 23(f)
allows interlocutory appeals only from orders “under this
rule,” IQVIA concludes, an appeal is not permitted here,
where the district court made its decision pursuant to Rule 12.
We review this jurisdictional question de novo. Marshall v.
Blake, 885 F.3d 1065, 1071 (7th Cir. 2018).
This is not the first time we have seen a Rule 12 motion to
strike used this way in a putative class action. In In re Bemis
Co., Inc., 279 F.3d 419 (7th Cir. 2002), the Equal Employment
Opportunity Commission (EEOC) brought a lawsuit against
Bemis Company on behalf of a class of African American em-
ployees. Bemis answered, arguing that the EEOC had not
complied with Rule 23. The EEOC moved to strike that part
of the answer, and the district court granted the motion. Be-
mis then appealed under Rule 23(f). Just as IQVIA has done
here, the EEOC argued that this court had no jurisdiction to
hear the appeal “because the district court’s order did not
grant or deny class certification.” 279 F.3d at 421. We were not
persuaded. We concluded that “[t]he rejection of [Bemis’s] po-
sition was the functional equivalent of denying a motion to

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4 No. 19-1204
certify a case as a class action, a denial that Rule 23(f) makes
appealable.” Id.
Our holding in Bemis has received the endorsement of the
Supreme Court. In Microsoft v. Baker, 137 S. Ct. 1702 (2017), the
Court confirmed that “[a]n order striking class allegation is
functionally equivalent to an order denying class certification
and therefore appealable under Rule 23(f).” Id. at 1711 n.7. In
so doing, it cited Bemis with approval. Id. Given the Court’s
endorsement of our reasoning, we see no reason to find that
Bemis was wrongly decided, as IQVIA urges. The cases are
clear: Rule 23(f) grants the courts of appeals jurisdiction to
hear interlocutory appeals of orders that expressly or as a
functional matter resolve the question of class certification
one way or the other.
The fact that Mussat still has an opportunity to seek certi-
fication of a much narrower class does not change anything.
The district court’s order eliminates all possibility of certify-
ing the nationwide class Mussat sought, and so to that extent
it operates as a denial of certification for one proposed class.
Rule 23(f) appeals are not limited to cases in which the district
court has definitively rejected any and all possible hypothet-
ical classes. To the contrary, we have held that Rule 23(f) per-
mits a party to appeal the partial denial of a class. See Matz v.
Household Int’l Tax Reduction Inv. Plan, 687 F.3d 824, 826 (7th
Cir. 2012) (holding that the court had jurisdiction under Rule
23(f) over a district court order partially decertifying a class
by eliminating 3,000 to 3,500 members); see also Driver v. Ap-
pleIllinois, LLC, 739 F.3d 1073, 1076 (7th Cir. 2014) (holding
that orders modifying class definitions may be appealed so
long as the alteration is “material”).

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No. 19-1204 5
The district court’s order striking the nationwide class was
the functional equivalent of an order denying certification of
the class Mussat proposed. We therefore have jurisdiction
over this appeal under Rule 23(f).
II
On to personal jurisdiction. IQVIA makes two principal
arguments: first, it contends that the Supreme Court’s deci-
sion in Bristol-Myers requires a decision in its favor; and sec-
ond, it urges that Federal Rule of Civil Procedure 4(k) does
the same. We address these points in that order.
Before the Supreme Court’s decision in Bristol-Myers,
there was a general consensus that due process principles did
not prohibit a plaintiff from seeking to represent a nationwide
class in federal court, even if the federal court did not have
general jurisdiction over the defendant. See, e.g., Al Haj v.
Pfizer, Inc., 338 F. Supp. 3d 815, 818–19 (N.D. Ill. 2018) (noting
that the defendant could not produce any pre-Bristol-Myers
decision holding that “in a class action where defendant is not
subject to general jurisdiction, specific jurisdiction must be es-
tablished not only as to the named plaintiff(s), but also as to
the absent class members”). For cases relying on specific ju-
risdiction over the defendant, minimum contacts, purposeful
availment, and relation to the claim were assessed only with
respect to the named plaintiffs. Even if the links between the
defendant and an out-of-state unnamed class member were
confined to that person’s home state, that did not destroy per-
sonal jurisdiction. Once certified, the class as a whole is the
litigating entity, see Payton v. Cnty. of Kane, 308 F.3d 673, 680–
81 (7th Cir. 2002), and its affiliation with a forum depends
only on the named plaintiffs.

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6 No. 19-1204
The Supreme Court has regularly entertained cases in-
volving nationwide classes where the plaintiff relied on spe-
cific, rather than general, personal jurisdiction in the trial
court, without any comment about the supposed jurisdic-
tional problem IQVIA raises. See, e.g., Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338 (2011) (nationwide class action brought in
California court; defendant headquartered in Arkansas and
incorporated in Delaware); Phillips Petroleum Co. v. Shutts, 472
U.S. 797 (1985) (nationwide class action brought in Kansas
court; defendant headquartered in Oklahoma and incorpo-
rated in Delaware); see also Califano v. Yamasaki, 442 U.S. 682,
702 (1979) (“Nothing in Rule 23 … limits the geographical
scope of a class action that is brought in conformity with that
Rule.”). Although IQVIA and its amici insist that class actions
have always required minimum contacts between all class
members and the forum, this is nothing more than ipse dixit.
Decades of case law show that this has not been the practice
of the federal courts. What is true, however, is that this issue
has not been examined closely. The current debate was
sparked by the Supreme Court’s decision in Bristol-Myers—a
case that did not involve a certified class action, but instead
was brought under a different aggregation device. A closer
look at that decision illustrates why it does not govern here.
In Bristol-Myers, 600 plaintiffs, most of whom were not
California residents, filed a lawsuit in California state court
against Bristol-Myers Squibb, asserting state-law claims
based on injuries they suffered from taking Plavix, a blood
thinning drug. 137 S. Ct. at 1777. Bristol-Myers sold Plavix in
California, but it had no other contacts with the state. The
plaintiffs brought their case as a coordinated mass action,
which is a device authorized under section 404 of the Califor-
nia Civil Procedure Code, but which has no analogue in the

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No. 19-1204 7
Federal Rules of Civil Procedure. That statute provides in rel-
evant part as follows:
When civil actions sharing a common question of
fact or law are pending in different courts, a petition
for coordination may be submitted to the Chairperson
of the Judicial Council, by the presiding judge of any
such court, or by any party … . A petition for coordi-
nation … shall be supported by a declaration stating
facts showing that the actions are complex … and that
the actions meet the standards specified in Section
404.1. On receipt of a petition for coordination, the
Chairperson of the Judicial Council may assign a judge
to determine whether the actions are complex, and if
so, whether coordination of the actions is appropriate
… .
In other words, rather like the multi-district litigation process
in federal court, see 28 U.S.C. § 1407, section 404 permits con-
solidation of individual cases, brought by individual plain-
tiffs, when the necessary findings are made. The Bristol-Myers
suit itself began as eight separate actions, brought on behalf
of 86 California residents and 592 residents of 33 other states.
137 S. Ct. at 1778.
In the Supreme Court, Bristol-Myers argued that the Cal-
ifornia courts did not have jurisdiction over it with respect to
the claims of the plaintiffs who were not California residents
and had not purchased, used, or been injured by Plavix in Cal-
ifornia. The Court agreed. Id. at 1783–84. It noted that its hold-
ing constituted a “straightforward application … of settled
principles of personal jurisdiction.” Id. at 1783. (Interestingly,
the California courts had held that they had general jurisdic-
tion over Bristol-Myers, but that theory dropped out of the

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8 No. 19-1204
case after the Supreme Court’s decision in Daimler AG v. Bau-
man, 571 U.S. 117 (2014).)
Although Bristol-Myers arose in the context of consoli-
dated individual suits, the district court in our case thought
that the Bristol-Myers approach to personal jurisdiction
should be extended to certified class actions. It held that the
Due Process Clause of the Fourteenth Amendment precludes
the exercise of personal jurisdiction over a defendant where
“nonresident, absent members [of a class] seek to aggregate
their claims with an in-forum resident, even though the de-
fendant allegedly injured the nonresidents outside of the fo-
rum.” (Actually, in federal court it is the Fifth Amendment’s
Due Process Clause that is applicable, but the mention of the
Fourteenth Amendment made no difference here.) This
meant, the court realized, that nationwide class actions will,
as a practical matter, be impossible any time the defendant is
not subject to general jurisdiction. This would have been far
from the routine application of personal-jurisdiction rules
that Bristol-Myers said it was performing. Nonetheless, the
district court felt compelled to reach that result.
Procedural formalities matter, however, as the Supreme
Court emphasized in Taylor v. Sturgell, 553 U.S. 880 (2008),
where it stressed the importance of class certification as a pre-
requisite for binding a nonparty (including an unnamed class
member) to the outcome of a suit. Id. at 894. With that in mind,
it rejected the notion of “virtual representation” as an end-run
around the careful procedural protections outlined in Rule 23.
Id. at 901. Class actions, in short, are different from many
other types of aggregate litigation, and that difference matters
in numerous ways for the unnamed members of the class.

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No. 19-1204 9
Bristol-Myers neither reached nor resolved the question
whether, in a Rule 23 class action, each unnamed member of
the class must separately establish specific personal jurisdic-
tion over a defendant. In holding otherwise, the district court
failed to recognize the critical distinction between this case
and Bristol-Myers. The Bristol-Myers plaintiffs brought a coor-
dinated mass action, which as we noted earlier does not in-
volve any absentee litigants. In a section 404 case, all of the
plaintiffs are named parties to the case. The statute allows the
trial court to consolidate their cases for resolution of shared
legal issues before moving on to individual issues. In a
Rule 23 class action, by contrast, the lead plaintiffs earn the
right to represent the interests of absent class members by sat-
isfying all four criteria of Rule 23(a) and one branch of Rule
23(b). The absent class members are not full parties to the case
for many purposes.
The proper characterization of the status of absent class
members depends on the issue. As the Supreme Court recog-
nized in Devlin v. Scardelletti, 536 U.S. 1 (2002), “[n]onnamed
class members … may be parties for some purposes and not
for others. The label ‘party’ does not indicate an absolute char-
acteristic, but rather a conclusion about the applicability of
various procedural rules that may differ based on context.” Id.
at 9–10. For example, absent class members are not considered
parties for assessing whether the requirement of diverse citi-
zenship under 28 U.S.C. § 1332 has been met. Id. at 10 (“[N]on-
named class members cannot defeat complete diversity….”).
As long as the named representative meets the amount-in-
controversy requirement, jurisdiction exists over the claims of
the unnamed members. Exxon Mobil Corp. v. Allapattah Servs.,
Inc., 545 U.S. 546, 566–67 (2005) (relying on the supplemental
jurisdiction statute, 28 U.S.C. § 1367, and recognizing that the

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10 No. 19-1204
statute overruled Zahn v. Int’l Paper Co., 414 U.S. 291 (1973)).
Nor are absent class members considered when a court de-
cides whether it is the proper venue. Appleton Elec. Co. v. Ad-
vance-United Expressways, 494 F.2d 126, 140 (7th Cir. 1974)
(holding that Rule 23 does not “require the establishment of
venue for nonrepresentative-party class members”). We see
no reason why personal jurisdiction should be treated any dif-
ferently from subject-matter jurisdiction and venue: the
named representatives must be able to demonstrate either
general or specific personal jurisdiction, but the unnamed
class members are not required to do so.
This brings us to IQVIA’s second major point: that allow-
ing the non-Illinois unnamed class members to proceed
would be inconsistent with Federal Rule of Civil Procedure
4(k), which governs service of process. Rule 4(k)(1) states, in
relevant part, that “[s]erving a summons or filing a waiver of
service establishes personal jurisdiction over a defendant who
is subject to the jurisdiction of a court of general jurisdiction
in the state where the district court is located.” IQVIA reads
Rule 4(k) broadly, as not requiring merely that a plaintiff com-
ply with state-based rules on the service of process, but also
establishing an independent limitation on a federal court’s ex-
ercise of personal jurisdiction. Because Illinois law would not
authorize some of the absent members of the putative class to
sue IQVIA in Illinois, the argument goes, Rule 4(k) prohibits
the federal district court in Illinois from exercising jurisdic-
tion.
Aside from the fact that IQVIA’s position is in tension with
Federal Rule of Civil Procedure 82, which stipulates that the
rules “do not extend or limit the jurisdiction of the district
courts or the venue of actions in those courts,” there is a

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No. 19-1204 11
simpler problem with it: IQVIA is mixing up the concepts of
service and jurisdiction. Rule 4(k) addresses how and where to
serve process; it does not specify on whom process must be
served. It is true that, with certain exceptions, a federal district
court has personal jurisdiction only over a party who would
be subject to the jurisdiction of the state court where the fed-
eral district court is located. But, as discussed above, a district
court need not have personal jurisdiction over the claims of
absent class members at all. The rules permit a variety of rep-
resentatives to sue in their own names: an executor, an admin-
istrator, a guardian, and a trustee, to name a few. See Fed. R.
Civ. P. 17(a)(1). If any of those is a defendant, the court will
assess personal jurisdiction with respect to that person, not
with respect to the person being represented. So, too, with
class actions: if the court has personal jurisdiction over the de-
fendant with respect to the class representative’s claim, the
case may proceed. Nothing in the Federal Rules governing
service of process contradicts this.
The rules for class certification support a focus on the
named representative for purposes of personal jurisdiction.
Rule 23(b)(3), for example, governs damages class actions.
Among the factors it lists is “the desirability or undesirability
of concentrating the litigation of the claims in the particular
forum.” The Committee Note to this provision mentions that
a court should consider the desirability of the forum “in con-
trast to allowing the claims to be litigated separately in fo-
rums to which they would ordinarily be brought.” Fed. R.
Civ. P. 23(b)(3), Committee Note to 1966 amendment. These
provisions recognize that a class action may extend beyond
the boundaries of the state where the lead plaintiff brings the
case. And nothing in the Rules frowns on nationwide class

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12 No. 19-1204
actions, even in a forum where the defendant is not subject to
general jurisdiction.
Finally, it is worth recalling that the Supreme Court in
Bristol-Myers expressly reserved the question whether its
holding extended to the federal courts at all. 137 S. Ct. at 1784
(“[S]ince our decision concerns the due process limits on the
exercise of specific jurisdiction by a State, we leave open the
question whether the Fifth Amendment imposes the same re-
strictions on the exercise of personal jurisdiction by a federal
court.”). In addition, the opinion does not reach the question
whether its holding would apply to a class action. Id. at 1789
n.4 (Sotomayor, J., dissenting) (“The Court today does not
confront the question whether its opinion here would also ap-
ply to a class action.”). Fitting this problem into the broader
edifice of class-action law, we are convinced that this is one of
the areas Scardelletti identified in which the absentees are
more like nonparties, and thus there is no need to locate each
and every one of them and conduct a separate personal-juris-
diction analysis of their claims.
III
Despite its insistence to the contrary, IQVIA urges a major
change in the law of personal jurisdiction and class actions.
This change is not warranted by the Supreme Court’s decision
in Bristol-Myers, nor by the alternative arguments based on
Rule 4(k) that IQVIA puts forth. We therefore R EVERSE the
judgment of the district court and R EMAND for further pro-
ceedings.

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