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February 19, 2025

“Not Dead Yet”: The Fifth Circuit Revives the Fiduciary Shield Exception to Personal Jurisdiction

Advisory
By

Summary

The U.S. Fifth Circuit’s recent decision in Savoie v. Pritchard, 122 F.4th 185 (5th Cir. 2024), has given new life to the “fiduciary shield” doctrine — an exception to a U.S. court’s personal jurisdiction over certain corporate officers and employees. Courts have historically invoked this doctrine to bar jurisdiction over an individual corporate officer or employee defendant who resides outside the forum state, but whose jurisdictional contacts with the forum were created solely in their corporate capacity. However, the doctrine has steadily fallen out of favor since the mid-1980s. Indeed, the plaintiff in Savoie had argued that the doctrine was effectively dead. Yet, the Fifth Circuit disagreed, and, in the first federal appellate decision since 1985 to withhold jurisdiction under the doctrine, held that it barred a Louisiana federal court from exercising personal jurisdiction over a non-resident corporate officer. Despite leaving various questions unanswered, Savoie confirms that the fiduciary shield doctrine is still available and that multi-state and -national businesses should be taking steps to obtain its protection.

The Fiduciary Shield Doctrine — Brief History

The fiduciary shield doctrine holds that “a nonresident corporate agent generally is not individually subject to a court’s jurisdiction based on acts undertaken on behalf of the corporation.”1 The doctrine originated in New York in the mid-1960s2 but became more widely adopted by the mid-1980s.3

In 1984, in Calder v. Jones, the Supreme Court allowed the assertion of personal jurisdiction against an out-of-state tort defendant based on the “effects” of the defendant’s conduct in the forum state.4 In doing so, the Supreme Court rejected an argument resembling the fiduciary shield doctrine, holding that, as a matter of federal due process, a defendant’s “status as [an] employee does not somehow insulate him from jurisdiction.”5

After Calder, some decisions have applied the fiduciary shield doctrine as a matter of state law, rather than federal due process.6 The reasoning from those decisions is sometimes unclear, especially when the forum state’s long-arm statute (i.e., the state’s law governing personal jurisdiction) authorizes the exercise of jurisdiction over a non-resident defendant to the same extent as federal due process — which does not itself contain a fiduciary shield exception, according to Calder.7

More commonly, however, decisions post-Calder have rejected the fiduciary shield doctrine as a matter of state law.8 Indeed, even New York, the jurisdiction in which the doctrine was first adopted, has since eliminated it altogether.9 Other courts have even suggested that the doctrine is either a dead letter or, to the extent it does exist, highly suspect.[[N: See, e.g., Sanders v. Allenbrooke Nursing and Rehab. Ctr., LLC, 2020 WL 5651675, at *11 (W.D. Tenn. Sept. 22, 2020) (observing that “[t]he Sixth Circuit has, as a practical matter, read the fiduciary shield doctrine out of existence for purposes of personal jurisdiction”); Low v. OMNI Life Science, Inc., 2019 WL 3242726, at *5 (W.D. Okla. Jul. 17, 2019) (“The fiduciary shield doctrine, never much more than a weed in the judicial garden in the first place, was interred, at least for jurisdictions that exert long-arm jurisdiction to the full extent permitted by the Due Process Clause, by Judge Rehnquist, writing for a unanimous Court in Calder.” (citation and internal quotation marks omitted)); Kukui Gardens Corp. v. Holco Capital Grp., Inc., 664 F. Supp. 2d 1103, 1111 (D. Haw. 2008) (“In Calder, the Supreme Court effectively abolished the fiduciary shield doctrine ….”); Intermatic, Inc. v. Tay-Mac Corp., 815 F. Supp. 290, 294-95 (S.D. Ind. 1993) (explaining the “questionable origins of the doctrine, the lack of articulation and analysis accompanying application of the doctrine, the fact that the doctrine served to obfuscate application of traditional due process analysis, and the fact that the doctrine allowed for easy but seemingly incorrect answers to jurisdiction questions, eventually caused commentators to suggest that the doctrine be abolished.”).]]

The Fiduciary Shield in the Fifth Circuit

The Fifth Circuit has generally been more receptive to the fiduciary shield doctrine as compared to other circuits. In 1985, in Stuart v. Spademan, the Fifth Circuit invoked the doctrine to bar the exercise of personal jurisdiction in Texas over a non-resident employee of a California corporation.10 While Stuart acknowledged that the long-arm statute in the forum state (Texas) extended personal jurisdiction to the limits of due process, it did not meaningfully address the then-recent Calder decision, nor the source for the fiduciary shield doctrine in light of Calder. Since Stuart, the Fifth Circuit’s fiduciary shield cases have generally declined to apply the doctrine, but not because of Calder or any doubts as to the doctrine’s continued validity, and instead under exceptions to the doctrine, including where personal jurisdiction is based on the individual defendant’s own tortious conduct independent of his corporate status.11

Apart from adhering to Stuart, the Fifth Circuit’s hesitation to repudiate the fiduciary shield doctrine may have otherwise followed from some post-Calder decisions issued by state courts within its geographic jurisdiction (mainly Texas and Louisiana; Mississippi has minimal case law in this area) that continue to adhere to the doctrine on state law grounds.12 Although notably, both Texas and Louisiana have long arm statutes authorizing personal jurisdiction to the full extent of due process13 — neither the Texas nor Louisiana Supreme Courts have weighed in on how that authorization squares with the fiduciary shield doctrine.14

In any event, following Stuart, federal courts within the Fifth Circuit have occasionally invoked the fiduciary shield doctrine as a limit on personal jurisdiction.15

The Savoie Decision

The November 2024 Savoie v. Pritchard decision resoundingly confirms that the fiduciary shield doctrine is still available as a limit on personal jurisdiction, at least within the Fifth Circuit.16 The case involved claims for breach of contract and violations of the Louisiana Wage Payment Act brought by an individual against his former employer for allegedly unpaid commissions.17 However, the plaintiff also sued the employer company’s CEO and alleged that the CEO separately breached the contract by “engaging in fraudulent and deceitful conduct” in connection with informing the plaintiff that he was not entitled to the requested commissions.18 The CEO moved to dismiss himself for lack of personal jurisdiction, and the district court granted the motion.19

On appeal, the Fifth Circuit affirmed, holding that the fiduciary shield doctrine barred the district court from exercising personal jurisdiction. In an opinion by Judge Engelhardt, the court expressly rejected the plaintiff’s argument that Calder (and its companion decision Keeton) were the doctrine’s “death knell.”20 According to the court, those decisions established only that the Due Process Clause does not require application of the doctrine; however, “a state may still choose to adopt such a limitation as a matter of its own law.”21 Thus, the “dispositive question then is whether Louisiana [the forum state at issue] adopts the shield as a matter of its own law.”22 Under Savoie — which quotes in a footnote Monty Python’s “Spamalot” — the doctrine is “not dead yet.”23

Turning to Louisiana law, the court recognized that although the Louisiana Supreme Court had not expressly adopted the fiduciary shield doctrine, it “appears to assume its existence” by having adopted the reasoning of a lower appellate court decision that had previously defined the doctrine and its exceptions.24 Thus, the Savoie court, “proceed[ing] cautiously,” applied the doctrine as implicitly recognized by the lower Louisiana appellate decision.25

Because in Savoie the plaintiff had “concede[ed] that all of [the defendant’s] suit-related contacts were made in his corporate capacity,” the court determined that the plaintiff had to establish an exception to the fiduciary shield as recognized by the lower Louisiana appellate decision, namely a “veil-piercing” exception or an exception for an independent tort committed by the officer.26 Holding that neither exception applied, the court affirmed the trial court’s dismissal for lack of personal jurisdiction.27

Notably, Savoie does not address the tension between a fiduciary shield based in state law and a state long-arm statute authorizing personal jurisdiction to the full extent allowed by due process, which, according to Calder, does not contain a fiduciary shield. Nor did Savoie’s state law analysis address Louisiana’s long-arm statute, which does exactly that.[[N: La. Rev. Stat. § 13:3201(b). Indeed, in recognizing Louisiana’s right to adopt a fiduciary shield limitation, the Savoie Court cited Urquhart-Bradley, a 2020 D.C. Circuit decision which declined to apply the fiduciary shield doctrine as a matter of both due process and D.C. law but recognized that “the District of Columbia could choose to adopt such a limitation as a matter of its own law.” Urquhart-Bradley, 964 F.3d at 47. However, in determining that D.C. had not adopted such a limitation, the D.C. Circuit looked to D.C.’s long-arm statute, noting that “[t]he District of Columbia’s courts have repeatedly affirmed that the … district’s Long Arm Statute is coextensive with the Due Process Clause of the Fifth Amendment.” Id. (internal quotation marks and citation omitted).]]

Takeaways

While the Savoie decision leaves unanswered questions regarding the fiduciary shield doctrine, there are precautions that multi-state and -national businesses and their employees can take — both to take advantage of the doctrine where possible and to hedge against the risk that it may not apply.

  • External communication practices. Corporate employees should make clear to customers, counterparties, and others that they are acting for the company and not in their personal capacities. This could include taking care to use company email addresses and signature blocks, but also to explicitly state in emails, contracts, invoices, and other writings that the communication is made by or on behalf of the company. These types of practices may provide evidence helpful to an employee needing to mount a fiduciary shield defense.
  • Corporate hygiene. As a general matter, and because exceptions to the fiduciary shield doctrine may be based on veil-piercing or “alter ego” theories, businesses should take care to adhere to relevant corporate formalities, ensure that their property and assets are properly separated from those of their officers, and to avoid undercapitalization or other similar practices that may give rise to these types of exceptions.
  • Proper forum selection clauses. While many businesses rely on contractual forum selection clauses to ensure predictability in the event of litigation, those clauses are often not worded broadly enough to cover related claims against a party’s officers or employees. Ensuring that choice-of-forum clauses explicitly cover such claims may provide additional protection for those individuals against suits brought outside the chosen forum.

Each business’ and employee’s situation is, of course, different — and unique considerations may arise in seeking to avoid or prevent litigation in distant or inconvenient fora. For questions, please feel free to contact the author or your regular Arnold & Porter advisor.

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

  1. Urquhart-Bradley v. Mobley, 964 F.3d 36, 44 (D.C. Cir. 2020) (quoting 3A W. Fletcher et al., Fletcher Cyclopedia of the Law of Corporations § 1296.20).

  2. See Boas & Associates v. Vernier, 22 A.D.2d 561, 257 N.Y.S.2d 487 (1965); United States v. Montreal Trust Co., 358 F.2d 239 (2d Cir. 1966), cert. denied, 384 U.S. 919 (1966).

  3. See, e.g., Stuart v. Spademan, 772 F.2d 1185, 1197-98 (5th Cir. 1985); Sharp Elecs. Corp. v. Hayman Cash Register Co., 1982 WL 1860, *1-2 (D.N.J. May 20, 1982); Pocahontas First Corp. v. Venture Planning Grp., Inc., 572 F. Supp. 503, 508 (D. Nev. 1983); State Sec. Ins. Co. v. Frank B. Hall & Co., 530 F. Supp. 94, 97-98 (N.D. Ill. 1981); Warren v. Dynamics Health Equip. Mfg Co., 483 F. Supp. 788 (M.D. Tenn. 1980); State ex rel Miller v. Internal Ener. Mgmt. Corp., 324 N.W.2d 707, 714 (Iowa 1982); Midland Marine Bank, N.A. v. Miller, 664 F.2d 899, 902-03 (2d Cir. 1981).

  4. Calder v. Jones, 465 U.S. 783 (1984).

  5. Id. at 813. The Supreme Court reiterated the same point in Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781 n.13 (1984) issued the same day as Calder.

  6. See, e.g., Rollins v. Elwood, 141, Ill.2d 244, 268-280, 565 N.E.2d 1302 (1990) (Illinois law); Saktides v. Cooper, 742 F. Supp. 382, 385-87 (W.D. Tex. 1990) (Texas law); Wilcox v. Precision Parachute Co., 685 F. Supp. 821, 822-24 (D. Kan. 1988) (Kansas law); SteriFx, Inc. v. Roden, 41,383 (La. App. 2d Cir. 8/25/06), 939 So.2d 533 (Louisiana law). In the same term in 1984 in which it decided Calder, the Supreme Court also denied review of Columbia Briargate Co. v. First Nat. Bank, 713 F.2d 1052 (4th Cir. 1983), cert. denied, 465 U.S. 1007 (1984), a decision in which the Fourth Circuit rejected any due process grounds for the fiduciary shield doctrine and held that the doctrine must exist, if at all, as a matter of the forum state’s long-arm statute (although ultimately held that the doctrine did not exist pursuant to the long-arm statute at issue, namely South Carolina’s).

  7. See, e.g., Saktides, 742 F. Supp. at 385-86 & n.2 (acknowledging that Texas’s long-arm statute authorizes personal jurisdiction to the full extent permitted under due process, but proceeding to apply the fiduciary shield doctrine in the context of assessing the quality of the individual defendant’s forum contacts); Plastic Film Corp. of Am., Inc. v. Unipac, Inc., 128 F. Supp. 2d 1143, 1146-47 (N.D. Ill. 2001) (acknowledging that Illinois’ long-arm statue allows for personal jurisdiction “contiguous” with the requirements of due process, but applying the fiduciary shield doctrine anyway as an “equitable, discretionary doctrine.”).

  8. See, e.g., Urquhart-Bradley v. Mobley, 964 F.3d 36, 44-48 (D.C. Cir. 2020) (D.C. law); Newsome v. Gallacher, 722 F.3d 1257, 1278-679 (10th Cir. 2013) (Oklahoma law); Goehring v. Superior Court (Bernier), 62 Cal.App.4th 894, 73 Cal.Rptr.2d 105 (1998) (California law); Mobil Oil Corp. v. Environmental Recycling Technologies, Inc., 833 F. Supp. 437, 443 (D. Del. 1993) (Delaware law); Davis v. Metro Prods., Inc., 885 F.2d 515, 522 (9th Cir. 1989) (Arizona law); Pittsburgh Terminal Corp. v. Mid Allegheny Corp., 831 F.2d 522, 525 (4th Cir. 1987) (West Virginia law).

  9. See Kreutter v. McFadden, 71 N.Y.2d 460, 467-70 , 522 N.W.2d 40 (1988).

  10. Stuart v. Spademan, 772 F.2d 1185.

  11. See, e.g., Trois v. Apple Tree Auction Ctr., Inc., 882 F.3d 485, 492 (5th Cir. 2018); General Retail Servs., Inc. v. Wireless Toyz Franchise, LLC, 255 F. App’x 775, 794-95 (5th Cir. 2007); Lewis v. Fresne, 252 F.3d 352, 359 n.6 (5th Cir. 2001); see also Alexander v. Anheuser-Busch, LLC, 2021 WL 3439131, at *3 (5th Cir. Aug. 5, 2021) (affirming district court’s reliance on fiduciary shield doctrine because plaintiff waived the issue on appeal).

  12. See, e.g., Nichols v. Tseng Hsiang Lin, 282 S.W.3d 743, 750 (Tex. App. — Dallas 2009, no pet.); Office Dimensions-La., Inc. v. King, 31,139 (La. App. 2 Cir. 9/23/98), 718 So. 2d 1052, 1055. Note, however that in Texas, there is some disagreement among the courts of appeals as to whether the fiduciary shield doctrine applies only to assertions of “general jurisdiction” or also to “specific jurisdiction.” See Steward Health Care Sys. LLC v. Saidara, 633 S.W.3d 120, 180 n.4 (Tex. App. — Dallas 2021, no pet.) (en banc) (citing cases going both ways).

  13.  See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); La. Rev. Stat. § 13:3201(b); A&L Ener., Inc. v. Pegasus Grp., 2000-3255 (La. 6/29/01), 791 So. 2d 1266, 1270.

  14. See generally Southeast Wireless Network, Inc. v. U.S. Telemetry Corp., 2006-1736 (La. 4/11/07), 954 So. 2d 120, 129-30 (Kimball, J., concurring) (concurring in a decision declining to apply the fiduciary shield doctrine, one justice notes that the Louisiana Supreme Court has never technically adopted the fiduciary shield doctrine and that it may be inconsistent with Louisiana’s long-arm statute); Morris v. Kohls-York, 164 S.W.3d 686, 696 (Tex. App. — Austin 2005, pet. dism’d) (noting that Texas Supreme Court has not adopted the doctrine).

  15. See, e.g., Total Imaging Concepts, Inc. v. Link, 2024 WL 3445491, at *3-5 (W.D. La. Jul. 16, 2024); Sensiva Health, LLC v. Universal Meditech, Inc., 2022 WL 15654250, at *3 (E.D. La. Mar. 7, 2022); VeroBlue Farms USA, Inc. v. Wulf, 465 F. Supp. 3d 633, 672-73 (N.D. Tex. 2020).

  16. Savoie, 122 F.4th at 191-93.

  17.  Id. at 189.

  18. Id.

  19. Id.

  20. Id. at 191 n.2.

  21. Id. (internal quotation marks and citations omitted).

  22. Id.

  23. Id. (quoting Christian Bortle et al., Monks Chant/He is Not Dead Yet, Spamalot (2004)).

  24. Id. (quoting Southeast Wireless Network, Inc. v. U.S. Telemetry Corp., 2006-1736 (La. 4/11/07) (citing Escoto v. U.S. Lending Corp., 95-2692 (La.App. 4 Cir. 5/22/96), 675 So. 2d 741, 745-46)).

  25. Id. at 192.

  26. Id. at 192.

  27. Id. at 192-94.

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