Non-U.S. banks with branches in New York and elsewhere in the United States find themselves sued or otherwise exposed to judicial orders in American courts with regularity. The cases reflect the full range of U.S. legal risks, including claims alleging fraud and breach of contract, or violations of federal statutory schemes such as those for securities, antitrust, and RICO (anti-racketeering), or federal schemes, like the Alien Tort Statute that may address politically charged issues. In addition, banks often are called on to submit to the jurisdiction of U.S. courts as non-parties, to provide information or comply with remedial orders.

No matter what the issue, a non-U.S. bank will be required to defend itself or comply with a judgment only if it is subject to the personal jurisdiction of the court. Whether jurisdiction attaches to the bank depends upon the scope of the jurisdictional statutes of the State where the litigation is based, jurisdictional provisions of applicable federal statutes, and—critically—compliance with safeguards provided by the Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution. The law governing the assertion of personal jurisdiction against non-U.S. banks based on U.S.-branch activity is changing rapidly, however, and in some courts’ view in the direction of requiring non-U.S. banks to answer to a much wider range of claims than before. This note provides a brief description of some of the more significant changes, and counsels that defenses to the assertion of jurisdiction must be raised without delay or they will be waived forever.