The State of Texas v. YELP, Inc.

 ACCEPTED 15-24-00040-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 7/2/2025 9:11 AM CHRISTOPHER A. PRINE CLERK FILED IN 15th COURT OF APPEALS July 2, 2025 AUSTIN, TEXAS 7/2/2025 9:11:04 AM Via Electronic Filing and FedEx CHRISTOPHER A. PRINE Clerk Christopher A. Prine Clerk of Court Fifteenth Court of Appeals William P. Clements Building P.O. Box 12852 Austin, TX 78701 Re: State of Texas v. Yelp Inc., No. 15-24-00040-CV Fifth Notice of Supplemental Authority Dear Mr. Prine: Appellee Yelp Inc. (“Yelp”) submits this Fifth Notice of Supplemental Authority (“Notice”) regarding a pair of Texas Supreme Court cases recently decided that involve the issue of purposeful availment, which is one prong of the two-prong test for specific jurisdiction. The issue arose during oral argument and is addressed in the parties’ briefs. Yelp respectfully requests that a copy of this Notice be provided to Chief Justice Scott Brister, Justice Scott Field, and Justice April Farris. I. BRP-Rotax GmbH & Co. KG v. Shaik, No. 23-0756, 2025 WL 1727903 (Tex. June 20, 2025) (Ex. A) In BRP-Rotax, a pair of Texas residents sued a non-resident aircraft engine manufacturer after being injured during a crash on a runway. The Texas Supreme Court found that the manufacturer did not purposefully avail itself of the privilege of doing business in Texas because the manufacturer lacked direct contacts with Texas and did not “specifically target” Texas. Id. at *1. The Court thus dismissed the case against the manufacturer. The Court’s opinion affirms many of the bases for finding a lack of specific personal jurisdiction over Yelp in the above referenced case. The Texas Supreme Court reiterated that the “stream of commerce-plus” test for purposeful availment only applies in product liability cases. Id. at *4. This directly contradicts the State’s contention that the “stream of commerce-plus” test should be applied in this case. App. Br. at 21- 22. This is not a products liability case; rather, it involves a single DTPA claim arising from a nationwide advisory, not products. Yelp Br. at 45. As relevant to this case, the Texas Supreme Court explained that specific personal jurisdiction is based on the defendant’s contacts with the forum state, not the unilateral activities of third parties. Id. at *8 (the “unilateral activity of another party or a third person is not an Haynes and Boone, LLP 98 San Jacinto Ave.| Suite 1500 | Austin, TX 78701 T: 512.867.8400 | haynesboone.com July 2, 2025 Page 2 appropriate consideration when determining whether a defendant has sufficient contacts for specific personal jurisdiction”). Accordingly, “only Yelp’s contacts with Texas should be considered” in this case. Yelp Br. at 45-46. The acts of Yelp’s users are irrelevant. App. Br. at 23. The Court also reiterated that the “touchstone” of purposeful availment “remains directly targeting Texas.” Id. at *8. In BRP-Rotax, the plaintiffs failed to allege that the manufacturer “specifically targeted Texas at all.” Id. at *8. Here, the State failed to plead that Yelp specifically targeted Texas. Instead, the State concedes that Yelp “targeted pregnancy resources centers nationwide” and posted the Consumer Notice “on the Yelp business pages of every pregnancy center across the nation.” Yelp Br. at 11 (emphasis added). The Court also reaffirmed its previous observation that “a nonresident defendant may purposefully avoid a particular jurisdiction by structuring its transactions so as neither to profit from the forum's laws nor be subject to its jurisdiction. Id. at *9 (internal quotations omitted). Likewise, Yelp has argued it “purposefully avoids the privileges of Texas by requiring users (such as any who might have viewed the Consumer Notice at issue here) to bring suit in California and be subject to California law.” Yelp Br. at 53. 1 The Court further found that the manufacturer’s website was not “interactive” because engines could not be purchased off its website. Id. at *8. Likewise, the Consumer Notice was not interactive because it was merely information and “did not invite any commercial transactions with residents of Texas (or any other state).” Yelp Br. at 6, 46-47. II. Hyundam Indus. Co., Ltd. v. Swacina, No. 24-0207, 2025 WL 1717010 (Tex. June 20, 2025) (Ex. B) In Hyundam, a Texas resident sued a non-resident car manufacturer after suffering injuries when her car stalled in traffic resulting from a fuel pump failure. Like in BRP-Rotax, the Texas Supreme Court held that the manufacturer did not purposefully avail itself of the privilege of doing business in Texas because there was no evidence that the manufacturer “specifically targets Texas.” Id. at *1. Instead, the manufacturer’s conduct—designing a fuel pump for North America—was aimed at “a general region with no specific targeting of Texas.” Id. at *5. The Court thus dismissed the case against the manufacturer. Like the manufacturer, Yelp’s conduct—posting the Consumer Notice—was aimed across America “with no specific targeting of Texas.” Id. at*1. The State concedes this in its pleadings. CR 13 ¶ 28. 1 The undisputed record also indicates that Yelp did not profit from the Consumer Notice. Yelp Br. at 51-53. July 2, 2025 Page 3 For the above reasons, this Court should follow the guidance of the Texas Supreme Court and hold that Yelp is not subject to personal jurisdiction in Texas because, among other reasons, it did not purposefully avail itself of the privilege of doing business in Texas. Respectfully submitted, Laura Lee Prather Partner, Haynes and Boone, LLP Laura.prather@haynesboone.com Direct Phone Number: (512) 867-8476 Direct Fax Number: (512) 867-8609 Attorney for Appellee Yelp Inc. EXHIBIT A BRP-Rotax GmbH & Co. KG v. Shaik, --- S.W.3d ---- (2025) 2025 WL 1727903 [4] interactions that Texans had with Austrian company's 2025 WL 1727903 website could not support finding specific personal Only the Westlaw citation is currently available. jurisdiction over Austrian company; NOTICE: THIS OPINION HAS NOT BEEN RELEASED [5] alleged “hundreds” of engines that third parties had FOR PUBLICATION IN THE PERMANENT voluntarily registered as located in Texas could not support LAW REPORTS. UNTIL RELEASED, IT IS finding specific personal jurisdiction over Austrian company; SUBJECT TO REVISION OR WITHDRAWAL. and Supreme Court of Texas. [6] taken collectively, evidence showed that Texas courts, under the stream-of-commerce-plus test, lacked personal BRP-ROTAX GMBH & CO. KG, Petitioner, specific jurisdiction over Austrian company. v. Sheema SHAIK and Touseef Siddiqui, Respondents Judgment of Court of Appeals reversed; judgment dismissing No. 23-0756 case against Austrian company rendered. | Argued December 4, 2024 Busby, J., concurred and filed opinion, which Devine, J., | joined. OPINION DELIVERED: June 20, 2025 Procedural Posture(s): On Appeal; Motion to Dismiss for Synopsis Lack of Personal Jurisdiction. Background: Aircraft passenger injured when aircraft suddenly lost engine power and crashed on the runway brought, along with her husband, who witnessed the incident, West Headnotes (23) action on claims of strict products liability, negligence, and gross negligence against Austrian company that designed and [1] Appeal and Error manufactured the allegedly defective engine. After hearing, the County Court at Law No. 5, Dallas County, Nicole Taylor, A defendant's amenability to specific personal J., denied Austrian company's special appearance challenging jurisdiction in Texas presents a question of law personal jurisdiction. Company appealed. The Dallas Court that an appellate court reviews de novo. Tex. Civ. of Appeals, 698 S.W.3d 305, affirmed. Austrian company Prac. & Rem. Code Ann. § 17.041 et seq. petitioned for review. [2] Appeal and Error Holdings: The Supreme Court, Young, J., held that: Where the relevant facts are undisputed, an appellate court reviewing a defendant's [1] Austrian company's distribution with independent amenability to specific personal jurisdiction Bahamian company that originally bought the engine could in Texas, which presents a question of law, not support finding specific personal jurisdiction over considers only the legal question of whether Austrian company; those facts establish Texas jurisdiction. Tex. Civ. Prac. & Rem. Code Ann. § 17.041 et seq. [2] distribution agreement's provision that Austrian company had to provide specific written permission for Bahamian company to use Austrian company's name could not support [3] Courts finding specific personal jurisdiction over Austrian company; A court must have personal jurisdiction over a defendant to issue a binding judgment. [3] existence of Texas-based repair center could not support finding specific personal jurisdiction over Austrian company; © 2025 Thomson Reuters. No claim to original U.S. Government Works. 1 BRP-Rotax GmbH & Co. KG v. Shaik, --- S.W.3d ---- (2025) 2025 WL 1727903 For a nonresident defendant's activities to [4] Courts support the exercise of specific personal Texas courts exercise personal jurisdiction over jurisdiction in Texas, the activities, whether litigants by reference to the Texas long-arm they consist of direct acts within Texas or statute and federal constitutional due-process conduct outside Texas, must justify a conclusion guarantees; while allegations that a tort was that the nonresident defendant could reasonably committed in Texas satisfy the Texas long-arm anticipate being called into a Texas court with statute, those allegations must also satisfy due- respect to a particular claim. Tex. Civ. Prac. & process requirements. U.S. Const. Amend. 14; Rem. Code Ann. § 17.041 et seq. Tex. Civ. Prac. & Rem. Code Ann. § 17.042(2). [10] Courts [5] Courts No specific personal jurisdiction exists over There are two kinds of personal jurisdiction: foreign manufacturer whose product just general, sometimes called all-purpose, happens to end up in the forum state via the jurisdiction and specific, sometimes called case- stream of commerce. Tex. Civ. Prac. & Rem. linked, jurisdiction. Code Ann. § 17.041 et seq. [6] Courts [11] Courts Specific personal jurisdiction covers defendants Mere awareness, or foreseeability, of a product's less intimately connected with a State, but only sale or distribution in Texas alone cannot create as to a narrower class of claims than general minimum contacts sufficient to support personal jurisdiction would allow. jurisdiction. Tex. Civ. Prac. & Rem. Code Ann. § 17.041 et seq. [7] Courts To be subject to specific personal jurisdiction, [12] Courts the nonresident defendant must have taken some Stream-of-commerce-plus personal jurisdiction act by which it purposefully availed itself of the attaches only when the defendant targets privilege of conducting activities within Texas, the forum, not when the defendant merely thus invoking the benefits and protections of foresees his product ending up there; in other its laws; second, the claims must arise out of words, the “additional conduct” must show or relate to defendant's Texas-focused activities. targeting Texas in particular, not merely passive Tex. Civ. Prac. & Rem. Code Ann. § 17.041 et awareness of a likelihood—even a substantial seq. likelihood verging on certainty—that products may eventually arrive in Texas. Tex. Civ. Prac. & Rem. Code Ann. § 17.041 et seq. [8] Courts Deliberate conduct that could support specific personal jurisdiction in Texas may come in the [13] Courts form of exploiting a market in Texas. Tex. Civ. Distribution agreement that Austrian company Prac. & Rem. Code Ann. § 17.041 et seq. that designed and manufactured allegedly defective aircraft engine had with Bahamian company that originally bought the engine could [9] Courts not support finding that Austrian company targeted Texas and thus could not support finding specific personal jurisdiction over © 2025 Thomson Reuters. No claim to original U.S. Government Works. 2 BRP-Rotax GmbH & Co. KG v. Shaik, --- S.W.3d ---- (2025) 2025 WL 1727903 Austrian company as to lawsuit in which name, that could not support finding specific aircraft passenger injured in crash caused by personal jurisdiction over Austrian company as allegedly defective engine was asserting claims to lawsuit in which aircraft passenger injured of strict products liability, negligence, and gross in crash caused by allegedly defective engine negligence against Austrian company; Bahamian was asserting claims of strict products liability, company was an independent company in which negligence, and gross negligence against Austrian company held no ownership interest, Austrian company; that particular contractual Bahamian company had no distributors in Texas requirement had nothing to do with targeting any or even the United States, and nothing in particular market. Tex. Civ. Prac. & Rem. Code agreement specifically directed marketing efforts Ann. § 17.042(2). to Texas. Tex. Civ. Prac. & Rem. Code Ann. § 17.042(2). More cases on this issue More cases on this issue [18] Trademarks Trademark owner has duty to exercise control [14] Courts and supervision over licensee's use of mark. It is only the defendant's contacts with the forum that count when determining if specific personal jurisdiction exists. Tex. Civ. Prac. & Rem. Code [19] Courts Ann. § 17.041 et seq. Existence of Texas-based repair center could not support finding specific personal jurisdiction over Austrian company as to lawsuit in [15] Courts which aircraft passenger who was injured in As is relevant to specific personal jurisdiction, crash that was caused by allegedly defective purposeful availment of local markets may be engine that company designed and manufactured either direct, through one's own offices and was asserting claims of strict products employees, or indirect, through affiliates or liability, negligence, and gross negligence independent distributors. Tex. Civ. Prac. & Rem. against Austrian company; Austrian company's Code Ann. § 17.041 et seq. distribution agreement with Bahamian company, in which Austrian company held no ownership interest, showed that Bahamian company was [16] Courts wholly responsible for establishing the repair center, and Austrian company never directed If a nonresident targets Texas by deploying Bahamian company to establish any center others to achieve the goal, the outcome for within Texas at all. Tex. Civ. Prac. & Rem. Code purposes of specific personal jurisdiction is no Ann. § 17.042(2). different than if the nonresident targeted Texas directly. Tex. Civ. Prac. & Rem. Code Ann. § More cases on this issue 17.041 et seq. [20] Courts [17] Courts Interactions that Texans had with website of Austrian company that designed and Although distribution agreement that Austrian manufactured allegedly defective aircraft engine company that designed and manufactured could not support finding specific personal allegedly defective aircraft engine had with jurisdiction over Austrian company as to lawsuit Bahamian company that originally bought the in which aircraft passenger who was injured in engine stated that Austrian company had crash that was caused by allegedly defective to provide specific written permission for engine was asserting claims of strict products Bahamian company to use Austrian company's © 2025 Thomson Reuters. No claim to original U.S. Government Works. 3 BRP-Rotax GmbH & Co. KG v. Shaik, --- S.W.3d ---- (2025) 2025 WL 1727903 liability, negligence, and gross negligence advertising and that engines were voluntarily against Austrian company; despite argument that registered in Texas but were not delivered to the website and the engine manual downloaded Texas. Tex. Civ. Prac. & Rem. Code Ann. § from the website were written in English, use of 17.042(2). English in a website and manual about airplane engines was not limited to the English-speaking More cases on this issue world, nothing about website targeted Texas or Texans, and Austrian company's engines could [23] Courts not be purchased off of website. Tex. Civ. Prac. As is relevant to personal jurisdiction, a & Rem. Code Ann. § 17.042(2). nonresident defendant may purposefully avoid More cases on this issue a particular jurisdiction by structuring its transactions so as neither to profit from the forum's laws nor be subject to its jurisdiction. [21] Courts Tex. Civ. Prac. & Rem. Code Ann. § 17.041 et Alleged “hundreds” of engines that third seq. parties had voluntarily registered as located in Texas could not support finding specific personal jurisdiction over Austrian company as to lawsuit in which aircraft passenger who was injured in crash that was caused On Petition for Review from the Court of Appeals for the Fifth by allegedly defective engine that company District of Texas designed and manufactured was asserting claims Attorneys and Law Firms of strict products liability, negligence, and gross negligence against Austrian company; there was John M. Socolow, Jackie Robinson, Ralph Pagano, Wallace no evidence of any sales of Austrian company's B. Jefferson, James M. Parker Jr., for Petitioner. engines by anyone to anyone in Texas beyond the single engine at issue in the case. Tex. Civ. Prac. George S. Christian, for Amicus Curiae Texas Civil Justice & Rem. Code Ann. § 17.042(2). League. More cases on this issue G. Don Swaim, Alex J. Whitman, M. Ross Cunningham, for Other interested party Piper Aircraft, Piper Sport, Excite [22] Courts Aircraft d/b/a US Sport Aircraft, & Patrick Arznen. Taken collectively, evidence showed that Texas Andrew L. Payne, Shannon T. Hays, for Respondents. courts, under the stream-of-commerce-plus test, lacked personal specific jurisdiction over Opinion Austrian company as to lawsuit in which Justice Young delivered the opinion of the Court. aircraft passenger who was injured in crash that was caused by allegedly defective engine *1 We must decide whether Texas courts may exercise that company designed and manufactured specific personal jurisdiction over BRP-Rotax GmbH & Co. was asserting claims of strict products KG, an Austrian company that designs and manufactures liability, negligence, and gross negligence aircraft engines. The answer depends on our application of against Austrian company; all of the evidence the so-called “stream-of-commerce-plus” test, under which demonstrated that the engine came to Texas Rotax is subject to jurisdiction in Texas only if it had by the unilateral actions of third parties, i.e., an intent or purpose to serve the Texas market. But far evidence showed, among other things, that from reflecting Rotax's purposeful availment, the record Austrian company's only relevant distributor conclusively establishes the opposite. As we have repeatedly was independent Bahamian company that explained, the stream-of-commerce-plus test requires a had substantial discretion in marketing and defendant to specifically target Texas; it is not enough that © 2025 Thomson Reuters. No claim to original U.S. Government Works. 4 BRP-Rotax GmbH & Co. KG v. Shaik, --- S.W.3d ---- (2025) 2025 WL 1727903 a defendant may foresee some of its products' eventually arriving here. • does no business in Texas; • has no employees in Texas; This case requires us to break no new jurisprudential ground. Under our precedents, the lawsuit against Rotax should have • has no offices in Texas; been dismissed for lack of personal jurisdiction, and the lower courts erred by instead proceeding with the litigation. We • does not own or lease any real property in Texas; and therefore reverse the judgment of the court of appeals and • has never targeted any advertising or other marketing render judgment dismissing the case against Rotax. activities to Texas residents. *2 The declaration further explained that Rotax sells its I engines under distribution agreements with independent distributors, all of which are located not just outside Texas Tragedy struck respondents Sheema Shaik and Touseef but outside the United States, and that Rotax does not provide Siddiqui (together, the Shaiks) when a Piper Light Sport direct product support for or repair Rotax engines. Aircraft suddenly lost engine power and crashed on the runway at an airport in Addison, Texas. Sheema, a passenger Rotax sold the engine at issue here, for example, to Kodiak in the plane, suffered permanent and life-altering injuries. Research Ltd., a Bahamian company. Kodiak shipped the Touseef, her husband, witnessed the harrowing incident. As engine from Austria to the Bahamas. Kodiak then sold the Texas residents injured in Texas, the Shaiks chose Dallas engine to Lockwood Aviation Supply, Inc., its sub-distributor County as the place to adjudicate their claims and hold in Florida that was itself “an independent Service Centre to account the numerous parties they believed responsible located in Sebring, Florida,” and Lockwood then sold the for their injuries. They asserted claims for strict liability, engine to U.S. Sports Aircraft, the Texas company that negligence, and gross negligence against the designer and installed the engine into the plane that crashed. manufacturer of the aircraft, the seller of the aircraft, and Rotax, which designed and manufactured the engine that lost The Shaiks concede that Rotax lacks a physical presence in or power. The Shaiks initially sued multiple other parties, too, direct connection to Texas. They acknowledge the attenuated but dropped their claims against them in various amended way in which the allegedly defective engine reached Texas. petitions, leading to the sixth amended petition, which is their But they counter that Rotax had numerous—albeit indirect live pleading. —contacts sufficient for Texas courts to exercise specific personal jurisdiction. Any one of these contacts, they say, is We are concerned today only with Rotax, which is enough to show that Rotax made “deliberate and systematic headquartered in Gunskirchen, Austria. The Shaiks allege that attempts to establish a market” in Texas and that “Rotax has Texas courts have specific personal jurisdiction over Rotax pervasively served [that] market for decades and has reaped because it “intentionally placed” the allegedly defective substantial profits by doing so.” Had Rotax wished to avoid engine “into the stream of commerce” and “moved it along” litigation here, the Shaiks continue, it should have “taken to Texas. affirmative action” and severed its connection to Texas, “just as it d[id] [with] Iraq, Iran, and North Korea” by expressly Rotax responded to the suit by filing a special appearance forbidding its independent distributors from shipping Rotax under Texas Rule of Civil Procedure 120a, requesting that engines to those countries. the court dismiss the case against it for lack of personal jurisdiction. Rotax relied on a declaration from its general The trial court and court of appeals agreed. Affirming the manager and vice president of sales who stated, among other trial court's denial of Rotax's special appearance, the court things, that Rotax: of appeals concluded that Rotax “purposefully availed itself of Texas under the ‘stream of commerce-plus’ test.” 698 • designs and manufactures its engines exclusively in S.W.3d 305, 309 (Tex. App.—Dallas 2023). Its purposeful- Austria; availment analysis purportedly “focus[ed] on the relationship • never contracted with the Shaiks or any other Texas among the forum, the defendant, and the litigation,” and so resident for the sale, installation, or repair of its engines; it discussed the distribution agreement between Rotax and © 2025 Thomson Reuters. No claim to original U.S. Government Works. 5 BRP-Rotax GmbH & Co. KG v. Shaik, --- S.W.3d ---- (2025) 2025 WL 1727903 Kodiak; Rotax's website; a repair center in Bulverde, Texas, at 8 (first citing Moncrief Oil, 414 S.W.3d at 149; and then known as “Texas Rotax”; and the number of Rotax engines citing Spir Star AG v. Kimich, 310 S.W.3d 868, 872 (Tex. registered in Texas. Id. at 313–14. 2010)). But underlying the court of appeals' review of whether the Adhering to the U.S. Supreme Court's precedents, our primary trial court had specific personal jurisdiction over Rotax were concern in personal-jurisdiction cases is “the constitutional the allegations that the Shaiks are Texas residents, that the right to due process.” LG Chem, 670 S.W.3d at 346 (citing aircraft was “leased and operated by a Texas resident” who U.S. Const. amend. XIV, § 1); cf. Retamco Operating, Inc. owned and operated a business in Texas, that “[t]he crash and v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009). [the Shaiks'] damages occurred in Texas,” and that Rotax “is Rotax has not invoked the Texas Constitution's due-course a global company.” Id. at 313, 317. The opinion asserted an clause, see Tex. Const. art. I, § 19, so our analysis concerns intent to follow this Court's decisions in State v. Volkswagen only the limits imposed by federal constitutional law. We Aktiengesellschaft, 669 S.W.3d 399 (Tex. 2023), and Luciano walk the path initially charted by International Shoe Co. v. SprayFoamPolymers.com, LLC, 625 S.W.3d 1 (Tex. 2021), v. Washington, in which the U.S. Supreme Court held that as well as the U.S. Supreme Court's decision in Ford Motor the exercise of personal jurisdiction is proper where the Co. v. Montana Eighth Judicial District Court, 592 U.S. 351, nonresident defendant has “certain minimum contacts” with 141 S.Ct. 1017, 209 L.Ed.2d 225 (2021). See 698 S.W.3d the forum state “such that the maintenance of the suit” at 317–18. In doing so, the court of appeals concluded that against it “does not offend ‘traditional notions of fair play Rotax “served a market in Texas for the very engine that [the and substantial justice.’ ” 326 U.S. 310, 316, 66 S.Ct. 154, Shaiks] alleged malfunctioned and caused them injury in this 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, state” and “that exercising jurisdiction over [Rotax] would not 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). offend traditional notions of fair play and substantial justice,” meaning that the exercise of specific personal jurisdiction [5] [6] [7] There are “two kinds of personal jurisdiction: over Rotax was proper. Id. at 309, 317. general (sometimes called all-purpose) jurisdiction and specific (sometimes called case-linked) jurisdiction.” Ford, *3 Rotax filed a petition for review, which we granted. 592 U.S. at 358, 141 S.Ct. 1017. The Shaiks contend only that Texas courts may exercise specific personal jurisdiction, which “covers defendants less intimately connected with a State, but only as to a narrower class of claims” than general II jurisdiction would allow. Id. at 359, 141 S.Ct. 1017. For [1] [2] A defendant's amenability to specific personal Texas courts to do so here, the evidence must satisfy a well- jurisdiction in Texas presents a question of law that we established two-prong test. See LG Chem, 670 S.W.3d at review de novo. Old Republic Nat'l Title Ins. Co. v. Bell, 549 347. First, Rotax must have taken “some act by which [it] S.W.3d 550, 558 (Tex. 2018). Where the “relevant facts” are purposefully avail[ed] itself of the privilege of conducting undisputed, “we consider only the legal question [of] whether activities within [Texas], thus invoking the benefits and [those] facts establish Texas jurisdiction.” Id. protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Second, the [3] [4] Our analysis begins with some familiar boilerplate. claims must “arise out of or relate to” Rotax's Texas-focused “A court must have personal jurisdiction over a defendant to activities. Ford, 592 U.S. at 359, 141 S.Ct. 1017 (quoting issue a binding judgment.” LG Chem Am., Inc. v. Morgan, Bristol-Myers Squibb Co. v. Super. Ct. of Cal., 582 U.S. 255, 670 S.W.3d 341, 346 (Tex. 2023). Texas courts, specifically, 262, 137 S.Ct. 1773, 198 L.Ed.2d 395 (2017)). exercise personal jurisdiction over litigants by reference to the Texas long-arm statute and federal constitutional due- *4 [8] [9] As for the first prong, we have adhered process guarantees. See id.; see also Moncrief Oil Int'l Inc. to the U.S. Supreme Court's reiterated teaching that the v. OAO Gazprom, 414 S.W.3d 142, 149 (Tex. 2013) (quoting jurisdictionally relevant activities must have been the Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 defendant's “own choice and not ‘random, isolated, or (Tex. 2007)). While “[a]llegations that a tort was committed fortuitous.’ ” Id. (quoting Keeton v. Hustler Mag., Inc., 465 in Texas satisfy our long-arm statute,” those allegations “must U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984)). This also satisfy due-process requirements.” Luciano, 625 S.W.3d “deliberat[e]” conduct may come in the form of “exploiting © 2025 Thomson Reuters. No claim to original U.S. Government Works. 6 BRP-Rotax GmbH & Co. KG v. Shaik, --- S.W.3d ---- (2025) 2025 WL 1727903 a market” in Texas. See id. (alteration incorporated) (quoting of commerce may or will sweep the product into [Texas] does Walden v. Fiore, 571 U.S. 277, 285, 134 S.Ct. 1115, 188 not convert the mere act of placing the product into the stream L.Ed.2d 12 (2014)). But these activities, “whether they into an act purposefully directed toward [Texas].” CSR, 925 consist of direct acts within Texas or conduct outside S.W.2d at 595 (emphasis added) (quoting Asahi, 480 U.S. at Texas, must justify a conclusion that the [nonresident] 112, 107 S.Ct. 1026 (plurality opinion)). defendant could reasonably anticipate being called into a Texas court” with respect to a particular claim. Am. Type [11] [12] Thus, a key point is that mere awareness, or Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. “foreseeability,” of a product's sale or distribution in Texas 2002) (citing World– Wide Volkswagen Corp. v. Woodson, 444 “alone” cannot “create minimum contacts” sufficient to U.S. 286, 297, 100 S.Ct. 580, 62 L.Ed.2d 490 (1980)). “support personal jurisdiction.” Id. at 595–96. In TV Azteca v. Ruiz, we summarized a host of our cases, which in turn [10] The Shaiks rely on one particular way of establishing applied recent decisions of the U.S. Supreme Court, as purposeful availment: the so-called “stream-of-commerce- follows: plus” test, first articulated in Justice O'Connor's plurality opinion in Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 105, 107 S.Ct. 1026, 94 L.Ed.2d [A] nonresident who places products 92 (1987). Of course, no specific personal jurisdiction “exists into the “stream of commerce” with over a [foreign] manufacturer whose product just happens the expectation that they will be sold to end up in the forum state” via the stream of commerce. in the forum state may be subject Spir Star, 310 S.W.3d at 876. However, we have found to personal jurisdiction in the forum. that in certain product-liability cases, plaintiffs may leverage But even under that theory, mere the stream-of-commerce-plus test “to conceptualize [the knowledge that the product will be manufacturer's] minimum contacts” with Texas. Luciano, sold in the forum state is not enough. 625 S.W.3d at 9. Indeed, the very point of the stream-of- A product seller's awareness that the commerce-plus test is that Rotax's “act of placing a product stream of commerce may or will into the stream of commerce does not establish purposeful sweep the product into the forum State availment unless there is ‘additional conduct’ evincing ‘an does not convert the mere act of intent or purpose to serve the market in [Texas].’ ” LG Chem, placing the product into the stream into 670 S.W.3d at 347 (emphasis added) (quoting Moki Mac, 221 an act purposefully directed toward S.W.3d at 577). the forum State. Instead, additional conduct must demonstrate an intent Over the years, we have identified a few examples of or purpose to serve the market in the such “additional conduct” sufficient to establish that a forum State. nonresident defendant has purposefully availed itself of the privilege of conducting business activities in Texas, including “[a]dvertising in telephone directories in Texas cities” and *5 490 S.W.3d 29, 46 (Tex. 2016) (emphasis added) “operating an office for sales information and support.” (internal quotation marks and citations omitted). For that See, e.g., Michiana Easy Livin' Country, Inc. v. Holten, 168 reason, stream-of-commerce-plus jurisdiction attaches “only S.W.3d 777, 785 (Tex. 2005) (first citing Siskind v. Villa when the defendant targets the forum, not when the defendant Found. for Educ., Inc., 642 S.W.2d 434, 436 (Tex. 1982); and merely foresees his product ending up there.” Luciano, then citing Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 625 S.W.3d at 13 (emphasis added). Relevant “additional 199, 201 (Tex. 1985)). Additionally, and as relevant here, conduct,” in other words, must show “targeting” Texas in the stream-of-commerce-plus test finds purposeful availment particular, not merely passive awareness of a likelihood where the nonresident defendant “creat[es], control[s], or —even a substantial likelihood verging on certainty—that employ[s] the distribution system that brought the product products may eventually arrive in our State. into [Texas].” Luciano, 625 S.W.3d at 10 (citing CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex. 1996)). But all the while, and consistent with U.S. Supreme Court precedent, we have emphasized that the defendant's “awareness that the stream A © 2025 Thomson Reuters. No claim to original U.S. Government Works. 7 BRP-Rotax GmbH & Co. KG v. Shaik, --- S.W.3d ---- (2025) 2025 WL 1727903 [13] The Shaiks allege that any one of four pieces of continually treat Rotax and Kodiak as one and the same— evidence demonstrates sufficient “additional conduct” to often saying that “Rotax” itself “servic[ed],” “repair[ed],” establish that Rotax purposefully availed itself of Texas. First, “market[ed],” or “advertis[ed]” its engines outside Austria, the Shaiks claim that the distribution agreement between where only Kodiak or its sub-distributors and dealers Rotax and Kodiak shows that Rotax “creat[ed], employ[ed], conducted those activities. Rotax and Kodiak, however, are and control[led] a network of authorized distributors and not the same in any sense. The law provides ways to prove servicers to sell and service ... Rotax aircraft engines in that Rotax either is in fact Kodiak or that Rotax so thoroughly Texas.” That “service and distribution network,” they say, was controls Kodiak that it is justifiable to treat them as the same. obligated to “market[ ] and advertis[e]” Rotax engines and But the Shaiks have made no such effort here, and the record replacement parts in Texas and at Rotax's direction. Second, in no way suggests that such an effort could succeed. the Shaiks assert that Rotax “specifically authorized” the repair center in Bulverde, Texas, known as “Texas Rotax,” *6 [14] Verbs imputing Kodiak's actions to Rotax, through which Rotax “servic[ed], repair[ed], and warrant[ied] therefore, cannot advance the Shaiks' effort, for “it is only the hundreds of Rotax ... engines in Texas.” Third, the Shaiks defendant's contacts with the forum that count.” Michiana, argue that Rotax, through its website, “interact[ed] directly 168 S.W.3d at 785 (emphasis added). Take, for example, the with Texans.” And finally, they point to the number of Rotax Shaiks' allegation that Rotax “sen[t] hundreds” of engines to engines registered here between 2016 and 2020—roughly 150 Texas “through its distributorship network.” That allegation —which, they say, shows that Rotax “sen[t] hundreds of ... is doubly imprecise: the Shaiks not only present no evidence engines into Texas through its distributorship network.” that Rotax itself ever sent anything to Texas, but also improperly neglect Rotax's and Kodiak's status as “distinct We conclude that this evidence, whether taken individually corporate entities.” BMC Software Belg., N.V. v. Marchand, or collectively, does not satisfy the requirements of the 83 S.W.3d 789, 798 (Tex. 2002). They have not argued that stream-of-commerce-plus test. Examining the Shaiks' four Kodiak is Rotax's agent, much less its alter ego. Indeed, contentions shows why. we reject such an effort even for “parent” and “subsidiary” companies, so we are far less willing to do so for those that are First, Rotax's “network of authorized distributors” or “service unrelated. See id. at 799 (“To ‘fuse’ the parent company and and distribution network” turns out to consist of just one its subsidiary for jurisdictional purposes, the plaintiffs must relevant distributor: Kodiak. Kodiak, however, is indisputably prove the parent controls the internal business operations and an independent, Bahamian company in which Rotax holds affairs of the subsidiary.”). no ownership interest. Importantly, Rotax has no distributors in Texas or even the United States. Instead, for its [15] [16] Of course, Kodiak's independent status is not, products to reach the aircraft-engine market for nearly half by itself, a categorical basis for rejecting a jurisdictional the globe, Rotax contracted with Kodiak pursuant to a allegation against Rotax. After all, “purposeful availment of distribution agreement. The agreement authorized Kodiak local markets may be either direct (through one's own offices to sell Rotax products in what the agreement defined and employees) or indirect (through affiliates or independent as Kodiak's “TERRITORY”—namely, the United States, distributors).” Spir Star, 310 S.W.3d at 874 (emphasis added). Central America, and most of South America, collectively So “[w]hen an out-of-state manufacturer ... specifically constituting nearly the entire Western Hemisphere. targets Texas as a market for its products, that manufacturer is subject to a product liability suit in Texas based on a product In its territory, Kodiak sells engines that it has purchased sold here, even if the sales are conducted through a Texas from Rotax through Kodiak's distribution centers in Florida, distributor or affiliate.” Id. But again, “it is not the actions Wisconsin, and California. For example, Kodiak sold of the Texas intermediary that count, but the actions of the the allegedly defective engine that injured the Shaiks to foreign manufacturer who markets and distributes the product Lockwood Aviation, which is Kodiak's sub-distributor in to profit from the Texas economy.” Id. Said differently, what Florida. Kodiak, like Rotax, has no distributors or sub- matters is that Rotax must “specifically target[ ] Texas.” Id. distributors in Texas. If a nonresident targets Texas by deploying others to achieve the goal, the outcome for purposes of personal jurisdiction is We find it telling, therefore, that to establish even an arguable no different than if the nonresident targeted Texas directly. basis for exercising jurisdiction over Rotax, the Shaiks © 2025 Thomson Reuters. No claim to original U.S. Government Works. 8 BRP-Rotax GmbH & Co. KG v. Shaik, --- S.W.3d ---- (2025) 2025 WL 1727903 There is no Texas “distributor,” “affiliate,” or “intermediary” arising from that business” (emphasis added)). The agreement here, but we have recognized that “a truly interstate business expresses no view, much less any command, about whether may not shield itself from suit by a careful, but formalistic any business at all will be transacted in Texas—it simply structuring of its business dealings.” Siskind, 642 S.W.2d at requires Kodiak to deliver results within a territory spanning 437 (quoting Vencedor Mfg. Co. v. Gougler Indus., Inc., 557 two continents. If this were enough to constitute purposeful F.2d 886, 891 (1st Cir. 1977)). In Siskind, we observed that availment, then the stream-of-commerce-plus test would the nonresident defendant “affirmatively s[ought] business in come to an end. Our unwillingness to disregard “formalistic Texas” through its “advertising activities” and “practice of structuring” would be transformed into the elimination of any mailing informational packets,” “applications,” “invitations,” requirement to identify conduct that actually targets Texas. and “contracts to Texas residents.” Id. at 436. In concluding Instead, we adhere to our precedents: Targeting Texas remains that the defendant purposefully availed itself of Texas, we said the touchstone. We will not overlook such targeting when it is that it was “not determinative” that the defendant “accepted wrapped up in various business arrangements, but neither will the contract and was to perform its obligations” in another we find targeting that does not exist merely because a product state. Id. at 437. Indeed, that sort of “formalistic structuring” ultimately comes to Texas. of business dealings did not allow the defendant to escape jurisdiction in Texas where its “purposeful act[s]” were [17] [18] True, the distribution agreement states that Rotax otherwise sufficient. See id. at 436–37. must provide “specific written permission” before Kodiak can use the Rotax name, “trademark,” or “trade name.” This We therefore look to the distribution agreement between general requirement has nothing to do with targeting any Rotax and Kodiak. What we find is nothing “formalistic” particular market, and that minuscule measure of control in the sense that Siskind used that term—that is, targeting is in any event jurisdictionally unremarkable given that Texas yet hoping to obscure that effort, such as by “a trademark owner has a duty to exercise control and explicitly structuring its transactions with Texans to take place supervision over [a] licensee's use of the mark.” E.g., Ron outside Texas while directly marketing those transactions Matusalem & Matusa of Fla., Inc. v. Ron Matusalem, Inc., 872 inside Texas to Texans. The Shaiks allege that Rotax F.2d 1547, 1551 (11th Cir. 1989) (citing Sheila's Shine Prods., marketed and advertised its engines in Texas through Inc. v. Sheila Shine, Inc., 486 F.2d 114, 124 (5th Cir. 1973)). its service and distribution network. But the distribution We refuse to put nonresident defendants to such a choice: agreement makes Kodiak responsible for advertising in do not defend your marks (despite the law's requirements) Kodiak's “TERRITORY”—which of course includes Texas— or submit to our jurisdiction for doing so. Most importantly, but mandates no particular location within that vast territory. as the distribution agreement shows, Rotax expressed no It provides, for example, that Kodiak view about where Kodiak used its advertisements and did not control the frequency or method by which Kodiak did so. shall ensure that it and [its] dealers [19] Second, the Shaiks rely heavily on the mere existence advertise, display, and demonstrate of “Texas Rotax,” the Bulverde-based service center, as a [Rotax's product] ... in TERRITORY, basis to subject Rotax to jurisdiction in Texas. But again, and shall encourage and assist the distribution agreement shows that Kodiak, not Rotax, the dealers to advertise, display, is wholly responsible for establishing Texas Rotax. It gives demonstrate, and sell said PRODUCT Kodiak the “right to establish, operate and maintain an to the public ... at suitable locations and adequate dealer organization”—“including authorized repair with adequate facilities. and service centers”—in any way that it chooses and anywhere within its territory, a space so vast that even Texas looks small. The agreement correspondingly makes Kodiak, *7 It is hardly “formalistic” to recognize that unlike the not Rotax, responsible for “maintain[ing] and requir[ing]” Texas Rotax to have an “adequate inventory of spare parts, transactions in cases like Spir Star and Siskind, nothing in capable of adequately servicing” Rotax's engines, and it the agreement here specifically targets or “directs marketing requires Kodiak, not Rotax, to ensure that Texas Rotax (or efforts to Texas.” Cf. Michiana, 168 S.W.3d at 785 (observing any such center that Kodiak creates) honors Rotax's limited that “a nonresident that directs marketing efforts to Texas in warranty. the hope of soliciting sales is subject to suit here in disputes © 2025 Thomson Reuters. No claim to original U.S. Government Works. 9 BRP-Rotax GmbH & Co. KG v. Shaik, --- S.W.3d ---- (2025) 2025 WL 1727903 passive,” not “active,” because it “provid[ed] no means for What is initially striking about each of these provisions is that orders”). Prospective or current customers in the market none evinces an objective or purposeful intention of Rotax for a Rotax engine could perhaps email Rotax through the to do anything in Texas. Rather, these provisions relate to website's home page, and it may be true that the allegedly Kodiak's obligations in its territory, which simply includes defective engine here was inspected and installed using Texas. Rotax never directed Kodiak to establish Texas Rotax a Rotax engine manual downloaded from the website by specifically or to establish any center within Texas at all someone in Texas. None of that moves the needle toward —Kodiak did so of its own accord with Rotax's general subjecting Rotax to jurisdiction. Those actions could have permission. Kodiak, not Rotax, was responsible for training at been taken by anyone from anywhere on Earth, but “[t]he Texas Rotax; Kodiak, not Rotax, reimbursed Texas Rotax for unilateral activity of another party or a third person is not any warranty work that it did; and Kodiak, not the end-user an appropriate consideration when determining whether or even Texas Rotax, would later be reimbursed directly by a defendant has sufficient contacts” for specific personal Rotax for the warranty claim. Simply put, there is no evidence jurisdiction. Helicopteros Nacionales de Colom., S.A. v. Hall, that Rotax had any interest in any entity being in Bulverde or 466 U.S. 408, 417, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) anywhere else in Texas as opposed to any other place within (emphasis added). Kodiak's territory. [21] Finally, and for the same reason, we reject the Shaiks' [20] Third, the Shaiks are surely correct that Texans may attempt to hale Rotax into Texas given the “hundreds” have interacted with Rotax's website, but they have not of engines that third parties have voluntarily registered as identified anything about the website that targets Texas located in Texas. Such actions are even more attenuated and or Texans. Instead, they repeatedly emphasize that the beyond Rotax's control than the commercial transactions that website and especially the engine manual downloaded we have already described. We also cannot agree that the from the website were written in English as supporting presence of these engines demonstrates any “profit” to Rotax, Rotax's attempt to avail itself of Texas. This argument especially where the Shaiks have offered no evidence of any lacks merit. If any website's mere use of English illustrates sales of Rotax engines by anyone to anyone in Texas beyond an attempt to target Texas specifically—as opposed to the single engine at issue in this case. the other jurisdictions within our nation and across the world that primarily speak English—then the work of the Texas courts should be expected to grow by massive B proportions. Notably, the use of English in a website and manual about airplane engines is not limited even to the The Shaiks contend that the court of appeals' judgment English-speaking world. For example, the International Civil “involved nothing more than a straightforward application of Aviation Organization introduced language to “ensure that settled law.” But for reasons that should now be apparent, air traffic personnel and pilots are proficient in the English “[e]xercising jurisdiction here would go far beyond anything language.” See A38-8: Proficiency in the English Language we have approved in other commercial cases.” Michiana, 168 Used for Radiotelephony Communications, Int'l Civ. Aviation S.W.3d at 786. The court of appeals principally relied on three Org., https://www.icao.int/safety/lpr/Documents/A38.8.pdf. cases: Volkswagen, Luciano, and Ford. 698 S.W.3d at 317– This recognition of English as the international language of 18. Its holding in this case pushes far beyond the boundaries aviation is not unique. E.g., Paul v. Petroleum Equip. Tools of each of those cases. Co., 708 F.2d 168, 172 (5th Cir. 1983) (noting the “threshold requirements for a commercial pilot certificate include proof In Volkswagen, this Court stressed the “control” of the that the applicant ... is able to read, speak, and understand German manufacturers in concluding that they were subject English”). to specific personal jurisdiction in an enforcement suit brought by the State. 669 S.W.3d at 415 (noting how *8 Contrary to the Shaiks' argument that the website is the manufacturers put actionable conduct “into unstoppable “interactive” in a legally significant way, moreover, it is motion,” which “did not derive from unilateral or independent undisputed that Rotax engines cannot be purchased off action of [the distributor]”). Volkswagen was not even a the Rotax website. See McFadin v. Gerber, 587 F.3d 753, “stream of commerce” case, nor does it have much utility 762 (5th Cir. 2009) (concluding that “the website was here, where no sovereign is prosecuting any case against © 2025 Thomson Reuters. No claim to original U.S. Government Works. 10 BRP-Rotax GmbH & Co. KG v. Shaik, --- S.W.3d ---- (2025) 2025 WL 1727903 Rotax for purposefully violating Texas law inside Texas. with sub-distributors and service centers like Texas Rotax See id. at 415, 417. The Court observed that a nonresident throughout its territory. And Kodiak alone is responsible for “defendant need not single Texas out in some unique way further distributing Rotax's products and establishing service to satisfy constitutional dictates,” but that was because networks, according to whatever plan Kodiak deems best “direct[ing] activity to every state” is no less a targeting of —including Texas or excluding it. So long as Kodiak is Texas as to whatever activity occurred within Texas. Id. at successful within its broad territory, Rotax is apparently 420. The distribution agreement between Rotax and Kodiak happy—even if every engine Kodiak sold went to Brazil, does not resemble the control the German manufacturers Panama, or South Dakota. exercised there, which amounted to directly and purposefully affecting cars already in Texas, and indeed there is no [22] We said, and now say again, that “stream-of-commerce evidence that Rotax specifically targeted Texas at all. See id. jurisdiction requires a stream, not a dribble.” Michiana, 168 at 415, 417, 420. S.W.3d at 786. All the evidence in this case demonstrates that Rotax's engine came to Texas by the unilateral actions of third In Luciano, we emphasized the manufacturer's “purposeful parties—and certainly not from any “stream” engineered, acquisition of ... warehouse space in Texas” where it (not controlled, or manipulated by Rotax. Here, the plaintiffs someone else) “maintain[ed] a stock of merchandise,” as have not offered any evidence that Rotax—or its distributor well as its (not someone else's) retention of a “local sales Kodiak, or even a Kodiak sub-distributor—was routinely representative” to “find customers” specifically in Texas. sending Rotax engines into Texas, let alone selling them 625 S.W.3d at 11, 17 (stressing how all this was at the to Texans. Instead, the evidence shows that (1) Rotax had defendant manufacturer's own “direction and on [its own] one relevant distributor, Kodiak; (2) Kodiak had substantial dime”). Rotax did none of these things itself and certainly discretion in marketing and advertising Rotax products; (3) not on its “dime.” Luciano is, in essence, like Spir Star and engines were voluntarily registered in Texas but were not Siskind. The touchstone remains directly targeting Texas. We delivered there; (4) Kodiak was responsible for warranty will not overlook it when it occurs, as it decidedly did there. claims and establishing Texas Rotax; and (5) the Rotax website was not interactive or targeted toward Texans. *9 And in Ford, the manufacturer admitted that it had “substantial business [in the forum States]” and “actively [23] We do not retreat from our observation in Luciano that, s[ought] to serve the market for automobiles and related “[u]ndoubtedly, a nonresident defendant may ‘purposefully products in those States.” 592 U.S. at 361, 141 S.Ct. avoid’ a particular jurisdiction ‘by structuring its transactions 1017 (taking this as an admission that Ford “purposefully so as neither to profit from the forum's laws nor be subject availed itself of the privilege of conducting activities” in the to its jurisdiction.’ ” 625 S.W.3d at 9 (citation omitted). We forum states (alteration incorporated)). Indeed, even if we find ourselves with such a case today and so are breaking considered Texas Rotax as a Rotax contact with Texas, which no new ground in our holding. Indeed, we decline to give for the reasons discussed above we do not, that single contact even the slightest credence to the arguments that Rotax must would be miles away from Ford's pervasive presence through have treated Texas the same way it does Iraq, Iran, and North dealerships and service centers spread across the forum Korea to avoid personal jurisdiction here. Rotax's instruction states. See id. Unlike the evidence in Ford, in other words, to its distributors not to ship its engines to these countries— there is no evidence that Rotax has conducted “substantial countries notably targeted by international sanctions—hardly business” in Texas—let alone an admission by Rotax that means that Rotax has, by default, purposefully availed itself it has purposefully availed itself of the privilege of doing of every other forum for which it did not give that instruction. business here. See id. The evidence is legally insufficient to show that Rotax “has *** ‘continuously and deliberately exploited [Texas's] market’ ” such that it can “ ‘reasonably anticipate being haled into To summarize, Rotax is not Kodiak. Kodiak advertises, [Texas] courts’ to defend actions ‘based on’ products causing at its own discretion, within its territory and provides injury there.” Cf. Ford, 592 U.S. at 364, 141 S.Ct. 1017 after-sale support for Rotax products. Nothing requires (alteration incorporated) (quoting Keeton, 465 U.S. at 781, Kodiak to advertise in Texas as opposed to elsewhere 104 S.Ct. 1473). Rotax contracted with a distributor that in in the Western Hemisphere. Kodiak—not Rotax—works turn had wide discretion in building a “distribution system © 2025 Thomson Reuters. No claim to original U.S. Government Works. 11 BRP-Rotax GmbH & Co. KG v. Shaik, --- S.W.3d ---- (2025) 2025 WL 1727903 that [ultimately] brought” the Rotax engine to Texas. Cf. As explained below, the doctrine is unworkable: it yields Asahi, 480 U.S. at 112, 107 S.Ct. 1026 (plurality opinion). mixed results in indistinguishable cases, allowing one court But that is legally distinct from “creat[ing], control[ling], or to assert personal jurisdiction where another will not. Even employ[ing] the distribution system that brought [the product] worse, the current regime makes it easier for Texas federal to [Texas].” See id. In the end, Rotax's supposed “contacts courts to exercise personal jurisdiction over nonresident with Texas”—i.e., the mere fact that its engine allegedly failed corporate defendants—via the so-called “pure” stream-of- in Texas and injured Texas residents—“were ... fortuitous commerce test—than for Texas state courts—which apply or accomplished by the unilateral actions of third parties,” the more stringent stream-of-commerce-plus test. All this cf. Volkswagen, 669 S.W.3d at 406, meaning it did not uncertainty is costly for parties and inefficient for courts. purposefully avail itself of the privilege of doing business here. These difficulties in applying International Shoe consistently are the unsurprising result of the Supreme Court's decision *10 Without purposeful availment, there can be no specific to deviate from a deeply rooted historical understanding of personal jurisdiction over Rotax. Cf. Luciano, 625 S.W.3d at courts' power over parties—their jurisdiction to adjudicate. 13. Without any “Texas activities,” see id. at 16, we cannot But the tide is shifting: recent scholarship has helped recover proceed any further in the specific-personal-jurisdiction the original practice of American courts regarding personal analysis. jurisdiction. This practice shows that International Shoe went beyond what the Constitution requires: it constitutionalized personal jurisdiction under the banner of “due process” even though that concept alone offers no judicially discoverable or III manageable standards for determining jurisdiction. Because All told, this case is not among those “narrower class this error still haunts courts and litigants today and results of claims” where specific personal jurisdiction is proper. in federal-versus-state forum splits like the one here, I See Ford, 592 U.S. at 352, 141 S.Ct. 1017. We reverse write separately to urge the Supreme Court to reconsider its the judgment of the court of appeals and render judgment approach to personal jurisdiction. dismissing the case against Rotax. I Justice Busby filed a concurring opinion, in which Justice *11 I begin by explaining the Court's current fairness- Devine joined. based approach to constitutional personal jurisdiction and Justice Busby, joined by Justice Devine, concurring. showing that it yields inconsistent and unpredictable results I join the Court's opinion, which faithfully applies the law that are unfair on their own terms. This case provides a typical of personal jurisdiction to the facts of this case. But I do so illustration of these problems. with growing concern about the Supreme Court of the United States' decision to enshrine “fair play” and “reasonableness” as the constitutionally mandated touchstones of personal A jurisdiction. These squishy, subjective standards—unmoored from constitutional text and history—have failed on their own Since International Shoe, the Supreme Court of the United terms, producing inconsistent, unpredictable, and thus unfair States has focused its approach to personal jurisdiction mostly results in factually similar cases brought in different courts. on one guidepost: “general fairness.” Perkins v. Benguet Indeed, this very case would have been decided differently Consol. Mining Co., 342 U.S. 437, 445, 72 S.Ct. 413, 96 L.Ed. had it been filed in a Texas federal court. Jurists, scholars, and 485 (1952). 2 In World-Wide Volkswagen Corp. v. Woodson, commentators have all written extensively on the problem, the Court explained its view of the Due Process Clause but nothing has changed: my colleagues and I must still apply as a “guarantor against inconvenient litigation,” observing this broken regime ushered in by International Shoe Co. v. that this “protection ... is typically described in terms of Washington nearly 80 years ago. 1 ‘reasonableness’ or ‘fairness.’ ” 444 U.S. 286, 292, 100 S.Ct. 580, 62 L.Ed.2d 490 (1980). Over the decades, many justices writing separately have agreed with this description: the © 2025 Thomson Reuters. No claim to original U.S. Government Works. 12 BRP-Rotax GmbH & Co. KG v. Shaik, --- S.W.3d ---- (2025) 2025 WL 1727903 inquiry turns on “fairness” to the defendant. 3 Equally clear “[a]mbiguity and incoherence.” 6 This personal-jurisdiction “is what does not drive [this analysis]: original meaning.” 4 regime breeds inconsistency in the law, leaving litigants guessing what contacts amount to “minimum contacts” and In assessing “fairness,” International Shoe and its progeny courts unsure whether their exercise of jurisdiction comports instruct courts to apply a basic rule taught in 1L Civil with “fair play and substantial justice.” 7 Such uncertainty Procedure courses across the Nation: “due process requires” increases litigation costs, incentivizes forum shopping, 8 and that a defendant “have certain minimum contacts with [the consumes more of our scarce judicial resources. forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” 326 *13 Extensive scholarly research shows that this doctrine U.S. at 316, 66 S.Ct. 154 (internal quotation marks omitted). has produced confusion among state and federal courts Put slightly differently, there must be “such contacts ... with nationwide 9 —nowhere more pervasively, perhaps, than the state of the forum as make it reasonable, in the context where jurisdiction is predicated on a nonresident defendant's of our federal system of government, to require [a defendant] to defend a particular suit which is brought there.” Id. at 317, “contacts” with a forum through the internet. 10 Different 66 S.Ct. 154; see also id. (considering whether defense would States' courts are divided on the correct standard to apply “lay too great and unreasonable a burden on the [defendant] in deciding whether a corporate defendant has “minimum to comport with due process”). contacts” with the forum, 11 as are federal circuit courts across the Nation. 12 Even more troubling, state courts and *12 “[O]bvious and necessary though the principle may the federal circuits that include those States have split on what [have] be[en], it is an abstraction without easy application.” standard to apply, as this case shows. 13 Coca-Cola Co. v. Harmar Bottling Co., 218 S.W.3d 671, 680 (Tex. 2006). As nearly 80 years of trying to break in The Supreme Court not only has allowed these conflicts to International Shoe have revealed, its fairness-based approach persist, it has also facilitated their growth by producing a to personal jurisdiction fails on its own terms. Scholarly criticism of the doctrine's shortcomings in the modern world string of plurality and closely divided decisions. 14 Even in and empirical data from judicial decisions agree: using Ford Motor Co. v. Montana Eighth Judicial District Court subjective concepts of fairness, reasonableness, and justice to (one of the Court's recent attempts at untangling the doctrine) measure personal jurisdiction simply does not work. there was fair-minded disagreement on what the majority's opinion meant. 15 “It is a perilous project [for lower courts] In World-Wide Volkswagen, the Court stated the doctrine's to interpret a Supreme Court [doctrine] that the Justices objective: “[t]he Due Process Clause, by ensuring the orderly themselves interpret differently.” Ethridge v. Samsung SDI administration of the laws, gives a degree of predictability to Co., 137 F.4th 309, 317 (5th Cir. 2025) (Oldham, J.). the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to *14 These signals all point in the same direction: courts are where that conduct will and will not render them liable doing their level best to apply a flawed doctrine. And “[t]he to suit.” 444 U.S. at 297, 100 S.Ct. 580 (quoting Int'l impact of these differing approaches is clear: disharmony Shoe, 326 U.S. at 319, 66 S.Ct. 154). A few decades and unpredictability.” 16 The Court's approach to personal later, the Court reiterated that having “[s]imple jurisdictional jurisdiction should be “rooted in part in a realization that rules ... promote[s] greater predictability”; it “is valuable to it would be unfair for the character or result of a litigation corporations making business and investment decisions” and materially to differ because the suit had been brought in a “also benefits plaintiffs deciding whether to file suit in a state federal court.” Hanna v. Plumer, 380 U.S. 460, 467, 85 S.Ct. or federal court.” Hertz Corp. v. Friend, 559 U.S. 77, 94, 95, 1136, 14 L.Ed.2d 8 (1965). But the current doctrine does no 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010). such thing: far from “discourag[ing] ... forum-shopping,” id. at 468, 85 S.Ct. 1136, it instead “render[s] impossible [the] Unfortunately, the Supreme Court's current fairness-based equal protection of the law,” Erie R.R. Co. v. Tompkins, 304 approach is the opposite of consistent, predictable, and U.S. 64, 75, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). 17 orderly. Legal scholars have recognized for decades that International Shoe means “too many things to too many people,” 5 yielding a body of cases that is “plagued” by © 2025 Thomson Reuters. No claim to original U.S. Government Works. 13 BRP-Rotax GmbH & Co. KG v. Shaik, --- S.W.3d ---- (2025) 2025 WL 1727903 Writing for a plurality, Justice O'Connor answered “no”: B mere awareness could not serve as a basis for jurisdiction I can think of no better illustration of the problem than unless some further action was taken—the minimum contacts the aspect of personal jurisdiction at issue here: the stream- “must come about by an action of the defendant purposefully of-commerce doctrine. Our journey through this doctrinal directed toward the forum State.” Id. at 112, 107 S.Ct. 1026. labyrinth begins with the Supreme Court's decision in World- “The placement of a product into the stream of commerce, Wide Volkswagen. After purchasing a car in New York, without more,” the plurality held, is not such a purposefully the Robinsons embarked on a cross-country trip to their directed act; “[a]dditional conduct” indicating an intent or new Arizona home. While passing through Oklahoma, they purpose to serve the market is required. Id. were involved in an accident. The Robinsons sued (among others) the car's regional distributor, World-Wide, and its Justice Brennan concurred in the judgment, disagreeing with New York retailer in Oklahoma state court, alleging various the plurality's reasoning and seeing no need for a showing products-liability claims. Contrary to its name, World-Wide of “additional conduct” indicating an intent or purpose to contended that exercising jurisdiction over it would violate serve the forum. Id. at 117, 107 S.Ct. 1026 (Brennan, J., due process, but the Oklahoma courts disagreed. The U.S. concurring). Instead, he viewed the stream of commerce as Supreme Court reversed. Considering “the apparent paucity referring not “to unpredictable currents or eddies, but to the of contacts between [World-Wide] and Oklahoma,” 444 U.S. regular and anticipated flow of products from manufacture at 289, 100 S.Ct. 580, the Court held that Oklahoma's exercise to distribution to retail sale. As long as a participant in this of jurisdiction would offend principles of “reasonableness or process is aware that the final product is being marketed in fairness,” id. at 292, 100 S.Ct. 580, as World-Wide did not the forum State, the possibility of a lawsuit there cannot come “deliver[ ] its products into the stream of commerce with the as a surprise.” Id. 18 expectation that they [would] be purchased by consumers in the forum State,” id. at 298, 100 S.Ct. 580. Since Asahi, “[t]he rules and standards for determining when a State does or does not have jurisdiction over an absent Not even a decade later, the Court was presented with another party have been unclear.” J. McIntyre Mach., Ltd. v. Nicastro, opportunity to address the stream-of-commerce theory in 564 U.S. 873, 877, 131 S.Ct. 2780, 180 L.Ed.2d 765 (2011) Asahi Metal Industry Co. v. Superior Court of California, 480 (plurality opinion). Lower “courts have sought to reconcile U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (plurality the competing opinions,” id. at 883, 131 S.Ct. 2780, and so opinion). After an allegedly defective tire caused a fatal car has the Supreme Court. Just over a decade ago in Nicastro, collision, the plaintiffs sued a Taiwanese manufacturer that for example, the Court again tried to offer guidance on filed a cross-complaint against Asahi, a Japanese corporation. which approach—Justice O'Connor's or Justice Brennan's Asahi's contacts with the United States were limited: its —better applied to the “decades-old questions left open in manufacturing occurred in Japan and its products' arrivals Asahi.” Id. at 877, 131 S.Ct. 2780. But to no avail—again, here were indirect, occurring mostly through the Taiwanese a plurality agreed with Justice O'Connor's “plus” approach, manufacturer's sales. Even if it did not directly target the id. at 883, 131 S.Ct. 2780, while their colleagues preferred United States, testimony showed Asahi knew very well that Justice Brennan's approach, id. at 903-05, 131 S.Ct. 2780 its products would end up here. The Court granted certiorari (Ginsburg, J., dissenting). Several scholars have criticized the to decide split of authority. 19 And various courts attempting to apply the governing stream-of-commerce doctrine have reached whether the mere awareness on the part of a foreign defendant that the components it manufactured, sold, and opposite holdings in different jurisdictions on similar facts. 20 delivered outside the United States would reach the forum State in the stream of commerce constitutes “minimum *16 We are left today with just as many questions as before. contacts” between the defendant and the forum State such Courts across the Nation have chosen inconsistent approaches that the exercise of jurisdiction “does not offend ‘traditional to this stream-of-commerce conundrum: some apply a “pure” notions of fair play and substantial justice.’ ” standard based on foreseeability while others require a “plus.” Nowhere is this inconsistency more vividly on display than in *15 Id. at 105, 107 S.Ct. 1026 (quoting Int'l Shoe, 326 U.S. the approach taken and reasoning used in Texas federal and at 316, 66 S.Ct. 154). state courts. © 2025 Thomson Reuters. No claim to original U.S. Government Works. 14 BRP-Rotax GmbH & Co. KG v. Shaik, --- S.W.3d ---- (2025) 2025 WL 1727903 created, controlled, and employed a network of authorized The U.S. Court of Appeals for the Fifth Circuit follows independent distributors to sell its engines. It entered into the “stream-of-commerce” approach to personal jurisdiction, a distribution agreement with Kodiak, and Texas is in “under which the minimum contacts requirement is met so the territory that the agreement requires Kodiak to serve. long as the court ‘finds that the defendant delivered the Hundreds of Rotax engines are registered in Texas, and the product into the stream of commerce with the expectation record shows that the engine at issue here traveled through that it would be purchased by or used by consumers in the the stream of commerce from Rotax to Texas through Kodiak forum state.’ ” Ainsworth v. Moffett Eng'g, Ltd., 716 F.3d and one of its sub-distributors. Rotax also authorized Kodiak 174, 177 (5th Cir. 2013) (quoting Bearry v. Beech Aircraft to create centers to service, repair, and fulfill Rotax's warranty Corp., 818 F.2d 370, 374 (5th Cir. 1987)). In applying that obligations on Rotax engines. Kodiak established such a test, “mere foreseeability or awareness is a constitutionally center in Bulverde, Texas, and Rotax is required to reimburse sufficient basis for personal jurisdiction if the defendant's Kodiak for warranty claims made through the center. Because product made its way into the forum state while still in the this evidence shows Rotax “delivered [engines] into the stream of commerce.” Luv n' care, Ltd. v. Insta-Mix, Inc., stream of commerce with the expectation that [they] would 438 F.3d 465, 470 (5th Cir. 2006) (cleaned up). But “the be purchased by or used by consumers in [Texas],” a federal defendant's contacts must be more than ‘random, fortuitous, court in Texas would have specific personal jurisdiction over or attenuated, or ... the unilateral activity of another party or Rotax. Bearry, 818 F.2d at 374; see also Luv n' care, 438 third person.’ ” Ainsworth, 716 F.3d at 177 (internal citation F.3d at 470 (requiring “mere foreseeability or awareness” that omitted); see also Burger King Corp. v. Rudzewicz, 471 U.S. product will enter forum state while in stream of commerce). 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Texas Nothing in this Court's opinion today is to the contrary. federal district courts have attempted to follow this approach faithfully. 21 *** This Court, on the other hand, has adopted the Asahi If “fairness” is to be our constitutional north star in plurality's approach, endorsing the so-called stream-of- determining personal jurisdiction, as the Supreme Court has directed, this result surely shows we have been led astray. commerce-plus test. 22 Spir Star AG v. Kimich, 310 S.W.3d Today's holding—that the U.S. Constitution does not permit 868, 873 (Tex. 2010) (“[O]ur precedent generally follows personal jurisdiction over Rotax, a holding that directly Justice O'Connor's plurality opinion in Asahi, which requires results from International Shoe's fairness-based scheme— some ‘additional conduct’—beyond merely placing the allows plaintiffs suing in Texas to invoke the jurisdiction of a product in the stream of commerce—that indicates ‘an intent federal court over a defendant when they could not do so in or purpose to serve the market in the forum State.’ ”); see state court. Unless we revisit what the Constitution requires, also In re Christianson Air Conditioning & Plumbing, LLC, anomalies like this one will continue confusing lower courts 639 S.W.3d 671, 677 (Tex. 2022). Our courts of appeals have and litigants alike. attempted to apply this theory faithfully, 23 and this Court applies it faithfully today. Ante at –––– – ––––. *17 Given this division between Texas state and federal II courts, whether a court in Texas has personal jurisdiction It should come as no surprise that state and federal courts over Rotax depends on where the case is filed: state court or in Texas have broken from each other on the stream-of- federal court. As the Court explains, Texas state courts cannot commerce test, and that International Shoe has proven exercise personal jurisdiction over Rotax under the stream- difficult to apply in a predictable, even-handed fashion. of-commerce-plus theory. Ante at ––––, ––––. As many courts and scholars have explained, the existing fairness-based approach is unmoored from our Constitution's But a Texas federal court surely could under the pure stream- of-commerce theory. Plaintiffs allege and the record confirms text and history. 24 In particular, nothing in the text or history that Rotax, an Austrian manufacturer of airplane engines for of the Due Process Clause of the Fourteenth Amendment markets worldwide, placed an allegedly defective airplane provides an objective basis for determining when an exercise engine into the stream of commerce with the knowledge of personal jurisdiction over a foreign corporate defendant that it could reach the Texas market. Specifically, Rotax would be “unfair”—for example, whether that clause requires © 2025 Thomson Reuters. No claim to original U.S. Government Works. 15 BRP-Rotax GmbH & Co. KG v. Shaik, --- S.W.3d ---- (2025) 2025 WL 1727903 the stream of commerce to have a “plus.” Instead, I urge the Supreme Court to consider the guidance provided by early Moreover, Justice Black foresaw what International Shoe American practice regarding personal jurisdiction, which threatened to become: supports a sovereignty-based approach rooted in principles of customary law governing jurisdiction to adjudicate. I believe that the Federal Constitution leaves to each State, without any ‘ifs’ A or ‘buts’, a power to tax and to open the doors of its courts for its citizens *18 “The one thing jurisdiction scholars agree on is the to sue corporations whose agents do sad state of personal jurisdiction law.” 25 For the most business in those States. Believing that part, attacks on International Shoe have focused on the the Constitution gave the States that Court's inability to speak with one voice on when a power, I think it a judicial deprivation forum's exercise of jurisdiction will comport with “fair to condition its exercise upon this Court's notion of ‘fairplay’, however play and substantial justice.” 26 Instead, the Court has appealing that term may be. offered a potpourri of “catchphrases and buzzwords” 27 —i.e., “minimum contacts,” “substantial justice,” “fair warning,” “purposeful availment,” and “reasonableness”—that are Id. at 324-25, 66 S.Ct. 154 (emphasis added). He explained detached from early American personal-jurisdiction practice. that a test focused on “reasonableness, justice, or fair play, See Burger King, 471 U.S. at 472-78, 105 S.Ct. 2174. makes judges the supreme arbiters of the country's laws and And it has sent conflicting signals regarding the importance practices,” while the Constitution and our oath to preserve of particular considerations, such as the burden on the it require a less judge-centric approach. Id. at 326, 66 S.Ct. defendant 28 and the plaintiff's interest in a convenient 154. 30 As Justice Black's prophecy has come true, more 29 forum. Volatility and inconsistency in providing a single, judges are questioning whether International Shoe and its constitutionally rooted focus has left lower courts scrambling progeny should be revisited. to find a true “touchstone” in this analysis. “[W]e should endeavor to make the law simpler, not more byzantine.” *19 Just a few Terms ago, for example, Justice Douglass v. Nippon Yusen Kabushiki Kaisha, 46 F.4th 226, Gorsuch expressed his skepticism about the Court's 249 (5th Cir. 2022) (Ho, J., concurring). “personal jurisdiction jurisprudence and International Shoe's increasingly doubtful dichotomy.” Ford Motor, 592 U.S. Calls to discard International Shoe's regime have also come at 384, 141 S.Ct. 1017 (Gorsuch, J., concurring). After a from its creator—the Supreme Court. The first objection to majority of the Court added another chapter to the already a fairness-based doctrine of jurisdiction came from Justice confusing International Shoe saga, Justice Gorsuch took Black in International Shoe itself. After a majority of the the occasion to explain why another chapter had become International Shoe Court held that “fair play,” “justice,” and necessary: “because the old [International Shoe] test no “reasonableness” applied whenever personal jurisdiction was longer seems as reliable a proxy for determining corporate involved, Justice Black wrote separately to emphasize the presence as it once did.” Id. at 382-83, 141 S.Ct. 1017. danger International Shoe posed to “our federative system of International Shoe offered “a heady promise,” but all the government.” 326 U.S. at 323, 66 S.Ct. 154 (opinion of Black, Court has done since, Justice Gorsuch explained, “is struggle J.). International Shoe's reasoning, he explained, “introduced for new words to express the old ideas.” Id. Instead, Justice uncertain elements confusing the simple pattern and tending Gorsuch suggested that the Court should “seek to answer to curtail the exercise of State powers to an extent not justified the right question—what the Constitution as originally by the Constitution.” Id. He saw no basis for “stretch[ing] the understood requires, not what nine judges consider ‘fair’ and meaning of due process so far as to authorize this Court to ‘just.’ ” Id. at 379, 141 S.Ct. 1017 n.2. deprive a State of the right to afford judicial protection to its citizens on the ground that it would be more ‘convenient’ for Implicit in Justice Gorsuch's criticism is the reality that the corporation to be sued somewhere else.” Id. at 325, 66 International Shoe's attempt to “modernize” the doctrine S.Ct. 154. of personal jurisdiction in response “to the fundamental © 2025 Thomson Reuters. No claim to original U.S. Government Works. 16 BRP-Rotax GmbH & Co. KG v. Shaik, --- S.W.3d ---- (2025) 2025 WL 1727903 transformation of our national economy” has not worked as J., dissenting). Constitutional limits on personal jurisdiction expected. McGee v. Int'l Life Ins. Co., 355 U.S. 220, 222, 78 would not apply if the corporation were charged criminally S.Ct. 199, 2 L.Ed.2d 223 (1957). Shortly after International or if a foreign individual sent a harmful product into the Shoe, the Court explained that “modern transportation and country, and such a corporation cannot claim other important communication have made it much less burdensome for a constitutional protections. Yet every relevant Supreme Court party sued to defend himself in a State where he engages decision has assumed that foreign corporations are protected in economic activity.” Id. at 223, 78 S.Ct. 199. 31 And that from undesirable litigation in the United States as a matter of due process—without offering any reason why. burden has only continued to decrease, 32 especially for larger corporations. 33 Yet many corporations doing business Several judges have called this discontinuity into question. nationwide have sensibly structured their affairs to minimize Now-Chief Judge Elrod recently criticized the contradiction jurisdiction under International Shoe 34 —consenting to all- between demanding the right to stay at home abroad while purpose jurisdiction in their “home” state, see Daimler AG v. claiming the due process rights that belong to those at home Bauman, 571 U.S. 117, 127, 134 S.Ct. 746, 187 L.Ed.2d 624 in the United States. See id. Citing to Asahi and discussing (2014), while limiting their exposure to personal jurisdiction its application to foreign corporations, Judge Williams has in other States under the fairness-based minimum-contacts urged that “it may be valuable for courts to reconsider both the rubric. 35 Small businesses are less likely to be able to afford merits of the assumption in Asahi Metal and kindred cases that such structuring, yet it is they who face a greater burden when private foreign corporations deserve due process protections.” GSS Grp. Ltd. v. Nat'l Port Auth., 680 F.3d 805, 819 (D.C. Cir. called upon to defend themselves in remote States. 36 2012) (Williams, J., concurring). And a D.C. Circuit panel, just a few decades earlier, expressed the same sentiment in *20 Another oddity of International Shoe is that foreign an opinion by Judge Randolph: “[a] foreign entity without corporations like Rotax receive more protection under the property or presence in this country has no constitutional Due Process Clause than foreign individuals, and more rights, under the due process clause or otherwise.” People's protection than under other provisions of the Constitution. Mojahedin Org. of Iran v. U.S. Dep't of State, 182 F.3d 17, The U.S. Supreme Court has been abundantly clear: “it is 22 (D.C. Cir. 1999). Many scholars have agreed, arguing that long settled as a matter of American constitutional law that foreign corporations generally have no entitlement to due- foreign citizens outside U. S. territory do not possess rights under the U. S. Constitution.” Agency for Int'l Dev. v. All. process protections as an originalist matter. 38 “To the extent for Open Soc'y Int'l, Inc., 591 U.S. 430, 433, 140 S.Ct. that the Constitution is a social contract establishing a system 2082, 207 L.Ed.2d 654 (2020). This principle includes foreign of self-government, permanent outsiders ... seem to have little corporations: “foreign organizations operating abroad,” as claim to invoke constitutional ‘rights.’ ” 39 well as “foreign affiliates” of domestic corporations, “possess no rights under the First Amendment.” Id. at 436, 140 S.Ct. *21 I discuss these difficulties and debates not to venture an 2082. Even in criminal cases, where life and liberty may be opinion on how they should be resolved but instead to suggest at stake, foreign citizens abroad cannot claim constitutional that the very difficulties themselves indicate it is time for the protections. See, e.g., United States v. Verdugo-Urquidez, 494 Supreme Court to reexamine the fairness-based approach to U.S. 259, 274-75, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) personal jurisdiction that gives rise to them. As I explain next, (Fourth Amendment); Johnson v. Eisentrager, 339 U.S. 763, consulting our history and tradition reveals a very different 784, 70 S.Ct. 936, 94 L.Ed. 1255 (1950) (Fifth Amendment). relationship between the Constitution and limits on courts' Several scholars have explained that this principle logically personal jurisdiction over defendants. extends to the personal-jurisdiction context. 37 Given this precedent, should a separate foreign corporation B that has structured its activities to benefit from the U.S. market without entering the country directly be able to invoke To no part of the Constitution can one trace International constitutional limits on the jurisdiction of American courts in Shoe and its progeny. Considering the Due Process Clauses' a civil suit for harm caused by its product? As just explained, text and history, nothing there offers an objective basis for “[t]he American Constitution exists primarily to secure the determining when an exercise of personal jurisdiction would rights of Americans.” Douglass, 46 F.4th at 281 (Elrod, be “fair” to a foreign corporate defendant. © 2025 Thomson Reuters. No claim to original U.S. Government Works. 17 BRP-Rotax GmbH & Co. KG v. Shaik, --- S.W.3d ---- (2025) 2025 WL 1727903 jurisdiction. 48 Instead, Pennoyer simply recognized what the Almost a century after the American Founding, courts then-new Due Process Clause of the Fourteenth Amendment assessing personal jurisdiction over a defendant began had done: “creat[ed] an obligation for state courts—one asking a novel question: whether the exercise of personal that hadn't existed before [Pennoyer]—to follow the federal jurisdiction in a given case comported with due process. courts' lead on questions of personal jurisdiction” as a matter Courts today automatically associate restrictions on the of cooperative federalism. 49 Both federal and state courts assertion of personal jurisdiction with due process. But were still looking to traditional territorial rules of personal why? What constitutional role could due process play in jurisdiction—not to the Constitution itself—to answer those imposing nonprocedural limits on the scope of a court's questions, however. In other words, personal jurisdiction? And are courts correct in automatically associating personal jurisdiction with due process without The Fourteenth Amendment changed th[e] picture for state constitutional support on point? courts, because it enabled direct federal-question review of their jurisdictional rulings: as Pennoyer explained, From an originalist perspective, the phrase “due process” “proceedings in a court of justice to determine the personal provides no basis for divining territorial limits that can be rights and obligations of parties over whom that court has used to answer questions of personal jurisdiction. 40 Limits no jurisdiction do not constitute due process of law.” 50 on a court's personal jurisdiction over a defendant have always existed; 41 their connection to constitutional due This view finds strong support in Pennoyer itself. There, process has not. As one scholar has explained, “[w]hen the Court held that an Oregon state court lacked jurisdiction American courts first began articulating limits on personal over a nonresident defendant. But nothing in the Due Process jurisdiction, they didn't look to state or federal due process Clause inspired that holding: instead, Pennoyer rooted it in clauses, but to rules of general or international law that principles of sovereignty derived from customary law that had regulated the authority of separate sovereigns.” 42 existed for centuries. Courts long held that a forum's “attempt to give ex-territorial operation to its laws, or to enforce ... ex- “States that wanted to exercise broad jurisdiction would do territorial jurisdiction by its tribunals, would be deemed an so, and would execute judgments within their borders on encroachment upon the independence of the State in which the persons are domiciled or the property is situated.” Pennoyer, as much of the defendant's property as they could find.” 43 95 U.S. at 723 (emphasis added). These judgments were entitled to full faith and credit in other States, but only to the extent they complied with customary What due process meant in this context, as Pennoyer law and international conventions, 44 which focused on “a reaffirmed, was that an “exertion of power affecting private state's sovereign power over persons or property within its rights” can occur only through “a course of legal proceedings territory.” 45 Within this practice, constitutional principles [that] accord[ ] to those rules and principles which have of due process played an indirect and procedural role, been established in our systems of jurisprudence for the limiting enforcement of judgments rendered without personal protection and enforcement of private rights.” Id. at 733. jurisdiction according to substantive customary limits on In the era of Pennoyer, those rules and principles required the sovereign's jurisdiction to adjudicate. Defendants could that a defendant “be brought within [the State's] jurisdiction challenge a judgment's enforcement through “remov[al of] by service of process within the State, or [the defendant's] their cases into federal court or ... through diversity suits.” 46 voluntary appearance.” Id. The Oregon state court's exercise There, “[a] judgment without jurisdiction was void, and it of jurisdiction did not comport with those customs, so the wouldn't count as ‘due process of law’ to” enforce such Supreme Court decided that the judgment sought to be a judgment depriving the defendant of life, liberty, or enforced was invalid and not constitutionally recognizable. property. 47 One benefit of not constitutionalizing substantive limits on personal jurisdiction, as Justice Story recognized long ago, *22 Following Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 is that they can be adjusted by the politically accountable (1878), American courts began rooting personal jurisdiction branches as times change. Should Congress and the President in due process. But Pennoyer did not hold that the conclude that customary limits on courts' jurisdiction to Constitution itself dictated substantive limits on personal adjudicate are out of step with the modern world, they would © 2025 Thomson Reuters. No claim to original U.S. Government Works. 18 BRP-Rotax GmbH & Co. KG v. Shaik, --- S.W.3d ---- (2025) 2025 WL 1727903 2028, 216 L.Ed.2d 815 (2023). That case revived—or, more retain the power to change the applicable rules by statute. correctly put, reaffirmed—an early American court practice See Picquet v. Swan, 19 F. Cas. 609 (C.C.D. Mass. 1828) of exercising jurisdiction over corporations through consent- (No. 11,134) (Story, J.) (explaining that general jurisdictional by-registration statutes. See id. at 137, 143 S.Ct. 2028. But as principles, which kept with the law of nations, applied unless long as International Shoe's ahistorical appeal to “fairness” Congress clearly and expressly legislated otherwise). 51 remains, the doctrine will continue to befuddle judges and bedevil parties with an eye-of-the-beholder quality that the *23 In sum, the text of the Due Process Clauses offers Supreme Court has, despite its best efforts, failed to tame. no guidance on what constitutes a “stream of commerce.” And as a historical matter, the Constitution always permitted I encourage the Supreme Court to consider returning the American courts—state and federal—to rely on customary personal-jurisdiction inquiry to the touchstone Pennoyer principles of sovereignty in assessing personal jurisdiction, identified: sovereign power. The Fourteenth Amendment's as demonstrated by the common practice near the time of the role under this originalist approach is simple: channeling Founding and nearly a century thereafter. True, the current federal-question review of a state court's exercise of personal regime ushered in under International Shoe has existed for jurisdiction to ensure compliance with traditional limits on almost 80 years, and uprooting it to restore the early American sovereignty. Courts would not look to the Constitution to give tradition would surely create new questions that courts would content to these prevailing limits on when a sovereign's courts be left to answer. But perhaps not: “Pennoyer's reasoning can exercise jurisdiction to adjudicate. Instead, courts would can be right without International Shoe's outcome being take guidance from the customary law regarding territorial wrong; international law and American practice might just be rules of personal jurisdiction. I hope the cobbler will soon take different now than they were in 1878 or 1945.” 52 International Shoe and its fairness-based regime back to the workshop to consider such an originalist “resoling.” 53 *** So where do we go from here? As far as I can tell, the Supreme All Citations Court's decision in Mallory v. Norfolk Southern Railway Co. was a step in the right direction. 600 U.S. 122, 143 S.Ct. --- S.W.3d ----, 2025 WL 1727903 Footnotes 1 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). We are bound to follow U.S. Supreme Court precedent on questions of federal constitutional law. See Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 N.Y.U. J.L. & LIBERTY 44, 51 (2019). “[F]idelity to Supreme Court precedent must trump fidelity to text and original public meaning.” Douglass v. Nippon Yusen Kabushiki Kaisha, 46 F.4th 226, 246 (5th Cir. 2022) (Ho, J., concurring). 2 True, the Supreme Court's opinions have sometimes considered other principles when discussing personal jurisdiction. See, e.g., J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 879, 131 S.Ct. 2780, 180 L.Ed.2d 765 (2011) (plurality opinion) (sovereign authority of the State); Calder v. Jones, 465 U.S. 783, 788, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984) (convenience to and burden on the parties); Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) (individual liberty). But each case eventually reduces to one basic question: is exercising personal jurisdiction over the defendant consistent with “overall principles of fairness”? Richard D. Freer, Personal Jurisdiction in the Twenty-First Century: The Ironic Legacy of Justice Brennan, 63 S.C. L. REV. 551, 554 (2012). 3 See, e.g., Bristol-Myers Squibb Co. v. Super. Ct. of Cal., 582 U.S. 255, 269, 137 S.Ct. 1773, 198 L.Ed.2d 395 (2017) (Sotomayor, J., dissenting) (“A core concern in this Court's personal jurisdiction cases is fairness.”); © 2025 Thomson Reuters. No claim to original U.S. Government Works. 19 BRP-Rotax GmbH & Co. KG v. Shaik, --- S.W.3d ---- (2025) 2025 WL 1727903 Nicastro, 564 U.S. at 903, 131 S.Ct. 2780 (Ginsburg, J., dissenting) (“The modern approach to jurisdiction over corporations and other legal entities, ushered in by International Shoe, gave prime place to reason and fairness.”); Helicopteros Nacionales de Colom., S.A. v. Hall, 466 U.S. 408, 427, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (Brennan, J., dissenting) (“[T]he principal focus when determining whether a forum may constitutionally assert jurisdiction over a nonresident defendant has been on fairness and reasonableness to the defendant.”); Ins. Corp. of Ir., 456 U.S. at 713-14, 102 S.Ct. 2099 (Powell, J., concurring) (“Whenever the Court's notions of fairness are not offended, jurisdiction apparently may be upheld.”). 4 Mila Sohoni, The Puzzle of Procedural Originalism, 72 DUKE L.J. 941, 990 (2023). 5 Stephen E. Sachs, How Congress Should Fix Personal Jurisdiction, 108 NW. U. L. REV. 1301, 1305 (2014) [hereinafter Sachs, Fix Personal Jurisdiction]. 6 Kevin C. McMunigal, Desert, Utility, and Minimum Contacts: Toward a Mixed Theory of Personal Jurisdiction, 108 YALE L.J. 189, 189 (1998); see also Roger H. Trangsrud, The Federal Common Law of Personal Jurisdiction, 57 GEO. WASH. L. REV. 849, 850 (1989) (“[T]he Supreme Court ... has failed to expound a coherent theory of the limits of state sovereignty over noncitizens or aliens.”). 7 See Christina Ackemjack, Federal Personal Jurisdiction: Derailing Corporate-Friendly Litigation, 4 ST. THOMAS J. COMPLEX LITIG. 41, 41 (2018) (explaining that state courts are uncertain about when jurisdiction is proper given the lack of “clear and predictable rules”); Tracy O. Appleton, The Line Between Liberty and Union: Exercising Personal Jurisdiction over Officials from Other States, 107 COLUM. L. REV. 1944, 1990 (2007) (“[A]ll states suffer from the unpredictability of current personal jurisdiction rules.”); see also Angela M. Laughlin, This Ain't the Texas Two Step Folks: Disharmony, Confusion, and the Unfair Nature of Personal Jurisdiction Analysis in the Fifth Circuit, 37 CAP. U. L. REV. 681 (2009) [hereinafter Laughlin, Texas Two Step]. 8 See Sachs, Fix Personal Jurisdiction, at 1307 (“The more malleable the doctrine, the broader the forum shopping opportunities of highly sophisticated plaintiffs, who can select courts with plaintiff-friendly judges, juries, procedures, or choice of law.”). 9 See Laughlin, Texas Two Step, at 727 app. A. 10 See Bryce A. Lenox, Personal Jurisdiction in Cyberspace: Teaching the Stream of Commerce Dog New Internet Tricks: CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir. 1996), 22 U. DAYTON L. REV. 331, 345 n.129 (1997); Renaud Sorieul et al., Establishing a Legal Framework for Electronic Commerce: The Work of the United Nations Commission on International Trade Law (UNCITRAL), 35 INT'L LAW. 107, 121 (2001) (discussing conflicting outcomes on substantially similar facts among courts where personal jurisdiction is based on internet-related contacts with forums). 11 See Laughlin, Texas Two Step, at 727 app. A (demonstrating how different States apply different standards —i.e., some apply “pure” stream of commerce, others require “plus,” and a few apply an unclear hybrid standard). 12 Compare Bridgeport Music, Inc. v. Still N the Water Publ'g, 327 F.3d 472, 479-480 (6th Cir. 2003) (following stream-of-commerce-plus test), Lesnick v. Hollingsworth & Vose Co., 35 F.3d 939, 945-46 (4th Cir. 1994) (same), Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 683 (1st Cir. 1992) (same), and Holland Am. Line Inc. v. Wärtsilä N. Am., Inc., 485 F.3d 450, 459 (9th Cir. 2007) (same), with Barone v. Rich Bros. Interstate Display Fireworks Co., 25 F.3d 610, 613-15 (8th Cir. 1994) (following “pure” stream-of-commerce test), Ruston Gas Turbines, Inc. v. Donaldson Co., 9 F.3d 415, 420 (5th Cir. 1993) (same), and Dehmlow v. Austin Fireworks, 963 F.2d 941, 947 (7th Cir. 1992) (same). Some federal circuits have refused to choose a side. See, e.g., Monge v. RG Petro-Mach. (Grp.) Co., 701 F.3d 598, 620 (10th Cir. 2012); Vermeulen v. Renault, U.S.A., Inc., © 2025 Thomson Reuters. No claim to original U.S. Government Works. 20 BRP-Rotax GmbH & Co. KG v. Shaik, --- S.W.3d ---- (2025) 2025 WL 1727903 985 F.2d 1534, 1548 (11th Cir. 1993); Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 244 (2d Cir. 1999); Akro Corp. v. Luker, 45 F.3d 1541, 1545 (Fed. Cir. 1995); Renner v. Lanard Toys Ltd., 33 F.3d 277 (3d Cir. 1994). But most of the States within those circuits have selected one governing standard. See Laughlin, Texas Two Step, at 727 app. A. 13 See Laughlin, Texas Two Step, at 727 app. A (illustrating conflicts between federal circuit courts and States within those circuits). 14 See, e.g., Mallory v. Norfolk So. Ry., 600 U.S. 122, 143 S.Ct. 2028, 216 L.Ed.2d 815 (2023) (partial plurality opinion); Nicastro, 564 U.S. at 883, 131 S.Ct. 2780 (plurality opinion); Burnham v. Super. Ct. of Cal., 495 U.S. 604, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990) (plurality opinion); Asahi Metal Indus. Co. v. Super. Ct. of Cal., 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (plurality opinion); World-Wide Volkswagen, 444 U.S. at 286, 100 S.Ct. 580 (plurality opinion). 15 Compare Ford, 592 U.S. at 373, 141 S.Ct. 1017 (Alito, J., concurring), with id. at 375-78, 141 S.Ct. 1017 (Gorsuch, J., concurring). 16 Laughlin, Texas Two Step, at 712. 17 Erie, of course, curtailed federal common law. But the principles underlying Erie—its “twin aims,” see Hanna v. Plumer, 380 U.S. 460, 467, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965)—apply with great force in requiring procedural fairness here too. As explained below, where entry into federal court is easier than entry into state court— especially when the courts are within the same federal circuit—plaintiffs are incentivized to forum shop and the law is necessarily inequitable in opening the courthouse gates. Although the Court's personal-jurisdiction precedent currently permits that inequity, the Constitution and the practical underpinnings of the Court's related doctrines surely do not. 18 Justice Stevens also concurred, arguing the plurality's creation of an “intent or purpose” test was unnecessary to decide the case. Asahi, 480 U.S. at 121, 107 S.Ct. 1026 (Stevens, J., concurring). 19 See, e.g., Robert C. Casad, Personal Jurisdiction in Federal Question Cases, 70 TEX. L. REV. 1589, 1593 (1992) (explaining how lack of clarity in stream-of-commerce theory yields confusion, inconsistent holdings, and unpredictable results); Erik T. Moe, Comment, Asahi Metal Industry Co. v. Superior Court: The Stream of Commerce Doctrine, Barely Alive but Still Kicking, 76 GEO. L.J. 203, 213-15 (1987) (discussing cases that reach opposite holdings on similar facts given Supreme Court's conflicting guidance on stream-of-commerce theory). 20 Compare Gavigan v. Walt Disney World, Inc., 646 F. Supp. 786, 787-88 (E.D. Pa. 1986) (subject to jurisdiction for actively soliciting clientele in the forum), Walker v. Carnival Cruise Lines, 681 F. Supp. 470, 476 (N.D. Ill. 1987) (same), and Oliff v. Kiamesha Concord, Inc., 106 N.J.Super. 121, 254 A.2d 330, 333 (1969) (same), with Whalen v. Walt Disney World Co., 274 Pa.Super. 246, 418 A.2d 389, 392 (1980) (not subject to jurisdiction for similar contacts), Dirks v. Carnival Cruise Lines, 642 F. Supp. 971, 975 (D. Kan. 1986) (same), and Miller v. Kiamesha-Concord, Inc., 420 Pa. 604, 218 A.2d 309, 311 (1966) (same). Compare also Volkswagenwerk, A. G. v. Klippan GmbH, 611 P.2d 498, 511 (Alaska 1980) (permitting jurisdiction under stream-of-commerce theory over German car-seat manufacturer because manufacturer designed, manufactured and sold product to company knowing it would market product throughout the United States), with Humble v. Toyota Motor Co., 727 F.2d 709, 710 (8th Cir. 1984) (rejecting jurisdiction under stream-of- commerce-plus theory over Japanese car-seat manufacturer on similar facts because suit in forum was only foreseeable). 21 See, e.g., ATEN Int'l Co. v. Emine Tech. Co., 261 F.R.D. 112, 118-121 (E.D. Tex. 2009); Sunshine Kids Found. v. Sunshine Kids Juv. Prods., Inc., No. H-09-2496, 2009 WL 5170215 (S.D. Tex. Dec. 18, 2009); © 2025 Thomson Reuters. No claim to original U.S. Government Works. 21 BRP-Rotax GmbH & Co. KG v. Shaik, --- S.W.3d ---- (2025) 2025 WL 1727903 Ritzmann v. Nalu Kai, Inc., 523 F. Supp. 2d 564 (S.D. Tex. 2007); Animale Grp., Inc. v. Sunny's Perfume, Inc., No. 5:07-cv-13, 2007 WL 760373 (S.D. Tex. Mar. 8, 2007); Philip Morris USA, Inc. v. Lee, No. EP-05-CV-490- PRM, 2006 WL 4659839 (W.D. Tex. Dec. 28, 2006); Sorkin v. Dayton Superior Corp., No. H-06-1318, 2006 WL 2141255 (S.D. Tex. July 28, 2006); Biggs v. Bass Pro Outdoor World, LLC, No. 304CV1920R, 2005 WL 1511129 (N.D. Tex. June 27, 2005). 22 Only 20 years ago, the question whether “plus” was required for personal jurisdiction in Texas state courts remained unclear. See Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 786 (Tex. 2005) (“Whichever of these standards is ultimately correct, [the defendant]'s conduct meets none of them.”). 23 Unfortunately, given the prevailing confusion regarding the “fairness” analysis of personal jurisdiction and the stream-of-commerce concept specifically, these faithful attempts are sometimes unsuccessful. See, e.g., Hyundam Indus. Co. v. Swacina, No. 24-0207, --- S.W.3d ––––, slip op. at ––––, 2025 WL 1717010 (Tex. June 20, 2025); LG Chem Am., Inc. v. Morgan, 670 S.W.3d 341, 350 (Tex. 2023) (noting “multiple decisions of our courts of appeals ... involving factually similar claims ... yielding seemingly conflicting conclusions about whether personal jurisdiction exists” under stream-of-commerce-plus test); State v. Volkswagen Aktiengesellschaft, 669 S.W.3d 399, 417 (Tex. 2023) (reversing court of appeals' judgment and holding Texas court had personal jurisdiction over German manufacturer in case not “involv[ing] a typical stream- of-commerce scenario”). 24 See, e.g., Ethridge v. Samsung SDI Co., 137 F.4th 309, 323 (5th Cir. 2025) (Oldham, J.) (“The doctrine does not come from constitutional text or original law.”); Lawrence B. Solum & Max Crema, Originalism and Personal Jurisdiction: Several Questions and a Few Answers, 73 ALA. L. REV. 483, 486 (2022) [hereinafter Solum & Crema, Originalism and Personal Jurisdiction] (“[I]t seems very unlikely that International Shoe's ‘fair play and substantial justice’ standard can be grounded in the original meaning of the 1868 text.”). 25 Sachs, Fix Personal Jurisdiction, at 1304. 26 See James Weinstein, The Federal Common Law Origins of Judicial Jurisdiction: Implications for Modern Doctrine, 90 VA. L. REV. 169, 171 (2004) (“Although the extensive body of commentary on federally imposed limitations of state court jurisdiction agrees on very little, the one point of consensus is that Supreme Court personal jurisdiction doctrine is deeply confused.”); James P. George, Running on Empty: Ford v. Montana and the Folly of Minimum Contacts, 30 GEO. MASON L. REV. 1, 5 (2022) (calling personal jurisdiction doctrine “an unworkable maze of a test whose precedents are a repetitive patchwork of contradictions”). 27 Allan Erbsen, Impersonal Jurisdiction, 60 EMORY L.J. 1, 3 (2010). 28 Compare Kulko v. Super. Ct. of Cal., 436 U.S. 84, 97, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978) (holding burden too great where East Coast resident forced to litigate on the West Coast), with Calder, 465 U.S. at 789-790, 104 S.Ct. 1482 (holding burden not too great where East Coast resident forced to litigate on the West Coast). 29 Compare McGee v. Int'l Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957) (emphasizing plaintiff's interest in suing out-of-state defendant in convenient local forum), with Kulko, 436 U.S. at 100 n.15, 98 S.Ct. 1690 (deemphasizing plaintiff's interest in suing defendant in convenient local forum). 30 See Solum & Crema, Originalism and Personal Jurisdiction, at 485 (“International Shoe's adoption of the minimum-contacts and fairness standard as the test for compliance with the Due Process of Law Clauses is a paradigm case of living constitutionalism.”). 31 See also Frene v. Louisville Cement Co., 134 F.2d 511, 516 (D.C. Cir. 1943) (Rutledge, J.) (“In general the trend has been toward a wider assertion of power over nonresidents and foreign corporations....”). © 2025 Thomson Reuters. No claim to original U.S. Government Works. 22 BRP-Rotax GmbH & Co. KG v. Shaik, --- S.W.3d ---- (2025) 2025 WL 1727903 32 See World air passenger traffic evolution, 1980-2020, INT'L ENERGY AGENCY, https://www.iea.org/data- and-statistics/charts/world-air-passenger-traffic-evolution-1980-2020 (showing how during the 1980s, world air-passenger traffic was less than a billion passengers annually, but how recently the number has reached nearly five billion yearly passengers). 33 John F. Coyle, Financial Hardship and Forum Selection Clauses, 103 N.C. L. REV. 641, 646 (2025) (“When a wealthy corporation is directed to litigate in a distant forum, it will typically have the resources to do so.”). 34 Only two Terms ago, a plurality of the Supreme Court revisited part of its doctrine concerning corporations and personal jurisdiction. See Mallory, 600 U.S. 122, 143 S.Ct. 2028, 216 L.Ed.2d 815. Now, in States where there is a consent-by-registration statute on the books, a corporation is said to have consented to personal jurisdiction in that forum as a condition for doing business there—think something akin to “tag” jurisdiction for individuals. But outside this context, International Shoe remains alive and well. Id. at 146 n.11, 143 S.Ct. 2028 (“International Shoe governs where a defendant has not consented to exercise of jurisdiction.”). 35 Robert H. Jackson, What Price “Due Process?” 5 N.Y. L. REV. 435, 436 (1927) (explaining how corporations invoke their foreign charter when confronted with personal jurisdiction, enjoying the forum's economic benefits while avoiding liability there). 36 For example, a family business operating out of a Texas home and selling on eBay might be subjected to nationwide jurisdiction under the “pure” stream-of-commerce test solely because it foresaw its product reaching another forum. But it is for these small enterprises that nationwide jurisdiction is most “unfair” from a burden standpoint. See Peter L. Markowitz & Lindsay C. Nash, Constitutional Venue, 66 FLA. L. REV. 1153, 1209 (2014). 37 Aaron D. Simowitz, Legislating Transnational Jurisdiction, 57 VA. J. INT'L L. 325, 351 (2018) (“The right of foreign defendants to benefit from the protections of ... [d]ue [p]rocess personal jurisdiction is unclear.”); Lea Brilmayer & Matthew Smith, The (Theoretical) Future of Personal Jurisdiction: Issues Left Open by Goodyear Dunlop Tires v. Brown and J. McIntyre Machinery v. Nicastro, 63 S.C. L. REV. 617, 633 (2012) (granting foreign defendants due-process protections is “both highly controversial and contrary to other Supreme Court precedent” in other contexts); Austen L. Parrish, Sovereignty, Not Due Process: Personal Jurisdiction over Nonresident Alien Defendants, 41 WAKE FOREST L. REV. 1, 33 (2006) [hereinafter Parrish, Not Due Process] (arguing foreign private defendants should not be granted due-process protections in the personal- jurisdiction context). 38 See Parrish, Not Due Process, at 33-34 (“Several academics have convincingly argued that the Framers never intended [the Due Process Clauses of the Fifth or Fourteenth Amendment] to limit territorial assertions of power even in the domestic context,” and the “logic applies with greater force when the case involves a foreign defendant.”). 39 Lori Fisler Damrosch, Foreign States and the Constitution, 73 VA. L. REV. 483, 487 (1987). 40 See Stephen E. Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 VA. L. REV. 1703 (2020) [hereinafter Sachs, Unlimited Jurisdiction]; see also Stephen E. Sachs, Pennoyer Was Right, 95 TEX. L. REV. 1249 (2017) [hereinafter Sachs, Pennoyer Was Right]. 41 Before Pennoyer, these limits on state judgments, as a matter of customary law, simplified into one question: “whether anyone else would listen to them.” Sachs, Pennoyer Was Right, at 1274; see, e.g., Hart v. Granger, 1 Conn. 154, 168-69 (1814) (holding that if defendant is “so within the jurisdiction of the court,” “they can be commanded” “to appear and answer”). © 2025 Thomson Reuters. No claim to original U.S. Government Works. 23 BRP-Rotax GmbH & Co. KG v. Shaik, --- S.W.3d ---- (2025) 2025 WL 1727903 42 Sachs, Unlimited Jurisdiction, at 1708-09. See, e.g., Hitchcock v. Aicken, 1 Cai. 460, 481 (N.Y. Sup. Ct. 1803) (opinion of Kent, J.); id. at 478 (opinion of Radcliff, J.); accord Picket v. Johns, 16 N.C. 123, 131 1827 (opinion of Henderson, J.). 43 Sachs, Pennoyer Was Right, at 1270. 44 See, e.g., Hall v. Williams, 23 Mass. 232, 238 (1828) (holding “principles of the common law” applying “to judgments of the tribunals of foreign countries” were still just as applicable “to the judgments of the courts of the several States when sought to be enforced”). 45 Sachs, Pennoyer Was Right, at 1287. 46 Id. 47 Sachs, Unlimited Jurisdiction, at 1722-23. Professor Sachs' argument fits squarely within the doctrine articulated in Erie: although state and federal courts could disagree on the content of general law prior to Erie, see Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18-19, 10 L.Ed. 865 (1842), “they couldn't disagree any longer about personal jurisdiction, because due process issues were subject to federal-question review on direct appeal.” Sachs, Unlimited Jurisdiction, at 1725. 48 Wendy Collins Perdue, What's “Sovereignty” Got to Do with It? Due Process, Personal Jurisdiction, and the Supreme Court, 63 S.C. L. REV. 729, 732 (2012) (viewing due process as a “hook” for exercising jurisdiction); Sachs, Pennoyer Was Right, at 1288. 49 Sachs, Pennoyer Was Right, at 1288-89. 50 Sachs, Unlimited Jurisdiction, at 1709 (quoting Pennoyer, 95 U.S. at 733). 51 As Justice Story further explained, Congress could authorize unlimited federal-court jurisdiction by acting clearly enough, and if Congress did so, “the court would certainly be bound to follow it.” Picquet v. Swan, 19 F. Cas. 609, 615 (C.C.D. Mass. 1828) (No. 11,134). 52 Sachs, Pennoyer Was Right, at 1250. 53 Donald L. Doernberg, Resoling International Shoe, 2 TEX. A&M L. REV. 247 (2014). End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works. © 2025 Thomson Reuters. No claim to original U.S. Government Works. 24 EXHIBIT B Hyundam Industrial Company, Ltd. v. Swacina, --- S.W.3d ---- (2025) 2025 WL 1717010 [2] manufacturer did not purposefully avail itself of the Texas 2025 WL 1717010 market, and thus, manufacturer was not subject to specific Only the Westlaw citation is currently available. personal jurisdiction; and NOTICE: THIS OPINION HAS NOT BEEN RELEASED [3] manufacturer's action of designing fuel pump for North FOR PUBLICATION IN THE PERMANENT American specifications did not constitute conduct targeting LAW REPORTS. UNTIL RELEASED, IT IS Texas for personal jurisdiction purposes. SUBJECT TO REVISION OR WITHDRAWAL. Supreme Court of Texas. Reversed and rendered. HYUNDAM INDUSTRIAL Procedural Posture(s): On Appeal; Motion to Strike COMPANY, LTD., Petitioner, Affidavit. v. Paul SWACINA, as Successor Guardian of the Person West Headnotes (18) and Estate of Johari Kibibi Powell, an Incapacitated Person, and Paul Swacina as Next Friend of D.A.P., D.A.C., and D.A.C., Minor Children, Respondents [1] Appeal and Error Claim brought by guardian of person of No. 24-0207 incapacitated motorist, alleging that trial court | abused its discretion by denying guardian's OPINION DELIVERED: June 20, 2025 motion to strike affidavit of director of South Korean fuel pump manufacturer's research Synopsis and development center because affiant lacked Background: Guardian of the person and estate of personal knowledge, was not forfeited on incapacitated motorist filed products liability action against appeal by guardian's failure to file cross- South Korean fuel pump manufacturer and others on petition in his products liability action against motorist's behalf and as next friend of motorist's children, manufacturer, seeking to recover for injuries seeking to recover for injuries motorist sustained when her motorist sustained when her vehicle was rear- vehicle was rear-ended after it stalled in the center lane of ended after it stalled in traffic due to fuel pump traffic due to a fuel pump failure, and to recover for children's failure; although guardian raised his personal- loss of parental consortium, under theories of negligence, knowledge argument in his merits brief in gross negligence, misrepresentation, as well as design, Supreme Court and not by cross-petition for manufacturing, and marketing defects. The County Court review, he argued alternative ground to affirm at Law No. 1, Nueces County, Robert J. Vargas, J., denied Court of Appeals’ judgment and did not seek guardian's motion to strike affidavit of managing director to alter judgment, rule provided that party who of manufacturer's technical research and development center sought to alter Court of Appeals’ judgment had and denied manufacturer's special appearance. Manufacturer to file petition for review, and rule did not require filed an interlocutory appeal, and guardian cross-appealed. cross-petition when party raised argument as The Court of Appeals, 692 S.W.3d 734, affirmed, and alternative basis to support judgment. Tex. R. manufacturer filed petition for review. App. P. 53.1; Tex. R. Civ. P. 120a(3). Holdings: The Supreme Court held that: [2] Affidavits To satisfy the personal-knowledge requirement [1] affidavit of managing director of fuel pump for affidavit attached to a special appearance, the manufacturer's research and development center was affiant must swear that the facts presented in the sufficiently based on director's personal knowledge; affidavit reflect his personal knowledge; affiant's © 2025 Thomson Reuters. No claim to original U.S. Government Works. 1 Hyundam Industrial Company, Ltd. v. Swacina, --- S.W.3d ---- (2025) 2025 WL 1717010 belief about the facts is legally insufficient. Tex. R. Civ. P. 120a(3). More cases on this issue [6] Courts [3] Affidavits South Korean fuel pump manufacturer did not Affiant's job responsibilities can give him purposefully avail itself of the Texas market, and personal knowledge of a company's operations thus, manufacturer was not subject to specific and can establish how he learned of the facts personal jurisdiction in products liability action asserted for purposes of statute providing that brought against manufacturer by guardian of any affidavit attached to a special appearance the person and estate of incapacitated motorist, shall be made on personal knowledge. Tex. R. seeking to recover for injuries motorist sustained Civ. P. 120a(3). when her vehicle was rear-ended after it stalled in traffic due to fuel pump failure; manufacturer had no control over where vehicles containing [4] Affidavits its fuel pumps were sold, it had never sought to do business in Texas, it maintained no offices, Merely stating that the facts are within the employees, or agents in Texas, and it did not affiant's personal knowledge is conclusory and advertise, market, or sell its products in Texas. insufficient to satisfy the personal-knowledge requirement for purposes of statute providing More cases on this issue that any affidavit attached to a special appearance shall be made on personal knowledge. Tex. R. Civ. P. 120a(3). [7] Courts Texas court may exercise specific personal jurisdiction when the non-resident defendant [5] Affidavits purposefully avails itself of the privilege of conducting activities within the forum state and Affidavit of director of South Korean fuel pump the plaintiff's claims arise out of or relate to those manufacturer's research and development center forum contacts. was sufficiently based on director's personal knowledge for purposes of statute providing that any affidavit attached to a special appearance shall be made on personal knowledge, and [8] Courts thus, trial court did not abuse its discretion by When considering whether non-resident denying motion to strike affidavit in products defendant purposefully availed itself of Texas liability action brought against manufacturer by market, such that Texas court has specific guardian of the person and estate of incapacitated personal jurisdiction over defendant, courts motorist, seeking to recover for injuries motorist consider only the defendant's contacts with the sustained when her vehicle was rear-ended forum, not the unilateral activity of another party after it stalled in traffic due to fuel pump or a third person. failure; director laid foundation for his personal knowledge by detailing his extensive experience at manufacturer, knowledge he obtained in each [9] Courts role, and documents he reviewed to prepare Non-resident defendant's contacts with Texas his affidavit, and director obtained contracts for must be purposeful, not random, fortuitous, new vehicle models, learned distribution chain or attenuated, and defendant must seek some of manufacturer's fuel pumps, and was privy to benefit, advantage, or profit by availing itself information on its sales and marketing practices. of Texas's jurisdiction in order for Texas court Tex. R. Civ. P. 120a(3). to have specific personal jurisdiction over defendant. © 2025 Thomson Reuters. No claim to original U.S. Government Works. 2 Hyundam Industrial Company, Ltd. v. Swacina, --- S.W.3d ---- (2025) 2025 WL 1717010 More cases on this issue [10] Courts To engage in purposeful availment, for purposes [14] Courts of specific personal jurisdiction, non-resident It is the non-resident defendant's purposeful defendant must undertake some additional contacts with Texas—not a larger region in conduct—beyond merely placing the product in which Texas sits—that are relevant to court's the stream of commerce—that indicates an intent personal-jurisdiction inquiry. or purpose to serve the market in the forum state. [15] Courts [11] Courts Foreign manufacturer need not design its Mere awareness, or foreseeability, of a product's products specifically for Texas to purposefully sale or distribution in Texas, alone, cannot avail itself of the Texas market for personal create minimum contacts sufficient to support jurisdiction purposes, but a foreign manufacturer specific personal jurisdiction over non-resident must engage in some conduct targeting Texas. defendant. [16] Courts [12] Courts Fact that one of South Korean manufacturer's Non-resident defendant must specifically target fuel pumps was purchased in Texas was Texas to be subject to specific personal insufficient to show that manufacturer acted jurisdiction in Texas; it is not enough that a through an agent or intermediary to intentionally defendant may foresee some of its products target Texas for purposes of determining if eventually arriving in Texas. manufacturer was subject to specific personal jurisdiction in products liability action brought against manufacturer by guardian of the person [13] Courts and estate of incapacitated motorist, seeking to recover for injuries motorist sustained when her South Korean fuel pump manufacturer's action vehicle was rear-ended after it stalled in traffic of designing fuel pump for North American due to fuel pump failure. specifications did not constitute conduct targeting Texas, and thus, manufacturer was More cases on this issue not subject to specific personal jurisdiction in products liability action brought against manufacturer by guardian of the person and [17] Courts estate of incapacitated motorist, seeking to Evidence that South Korean fuel pump recover for injuries motorist sustained when manufacturer maintained a website in English, her vehicle was rear-ended after it stalled in without more, failed to show that manufacturer traffic due to fuel pump failure; manufacturer targeted Texas for purposes of determining if did not design fuel pump for Texas, but, rather, manufacturer was subject to specific personal for expansive North American region which jurisdiction in products liability action brought contained the United States’ 50 states and against manufacturer by guardian of the person 22 other countries, and manufacturer's mere and estate of incapacitated motorist, seeking to foreseeability or awareness that fuel pump might recover for injuries motorist sustained when her be sold in Texas, standing alone, was insufficient vehicle was rear-ended after it stalled in traffic to subject it to personal jurisdiction in Texas. due to fuel pump failure. © 2025 Thomson Reuters. No claim to original U.S. Government Works. 3 Hyundam Industrial Company, Ltd. v. Swacina, --- S.W.3d ---- (2025) 2025 WL 1717010 More cases on this issue I [18] Courts Evidence of third party's car sales was legally Johari Powell suffered serious injuries when her 2009 insufficient to show that South Koran fuel Hyundai Elantra stalled in the center lane of traffic and was pump manufacturer targeted Texas for purposes rear-ended. Powell alleges that the car stalled because its of determining if manufacturer was subject to fuel pump failed. Paul Swacina, on behalf of Powell and her specific personal jurisdiction in products liability minor children, sued multiple defendants in Texas state court action brought against manufacturer by guardian for various causes of action related to the car collision. This of the person and estate of incapacitated motorist, appeal concerns only defendant Hyundam, the manufacturer seeking to recover for injuries motorist sustained of the Elantra's fuel pump. when her vehicle was rear-ended after it stalled in traffic due to fuel pump failure; court would Hyundam filed a special appearance under Texas Rule of Civil not consider the unilateral activity of a third party Procedure 120a, requesting that the trial court dismiss the in assessing manufacturer's contacts with Texas. case against it for lack of personal jurisdiction. In support, it attached an affidavit by Jinwook Chang, Managing Director More cases on this issue of the Technical R&D Center at Hyundam, explaining that Hyundam designed and manufactured the fuel pump in South Korea. Hyundam designed the fuel pump under Hyundai Motor Company's specifications and subject to its approval. On Petition for Review from the Court of Appeals for the Hyundam sold ninety-nine percent of its fuel pumps to Thirteenth District of Texas, Honorable Nora Longoria. Donghee Industries, Co., a South Korean company. Donghee then incorporated the fuel pumps into a fuel system in South Attorneys and Law Firms Korea and sold the assembled fuel systems to Hyundai, also a South Korean company, which installed the fuel systems into Scott T. Staha, Corpus Christi, for Respondents. the Elantra in South Korea. Chang stated that once Hyundam Melissa Dorman Matthews, Plano, David William Green, for sold the fuel pumps to Donghee, it had no role in producing Petitioner. the Elantra. Hyundam sold the remaining one percent of fuel pumps to Hyundai Mobis Co. Ltd., a South Korean company. Michael W. Eady, Austin, for Amici Curiae Texas Association Mobis distributes service parts to Hyundai automobile dealers of Defense Counsel, International Association of Defense globally, including in Texas, but Hyundam has no control over Counsel. where Mobis sells its products. Opinion Chang added that Hyundam: PER CURIAM • has never done or sought to do business in Texas; *1 At issue here is whether a Texas court may exercise • has no place of business, employees, or agents in Texas; personal jurisdiction over Hyundam Industrial Company, Ltd., a South Korean company that manufactures automobile • does not advertise, market, export, or sell products in parts. As we reaffirm today in BRP-Rotax GmbH & Co. KG Texas; and v. Shaik, “a defendant [must] specifically target Texas” to be subject to personal jurisdiction; “it is not enough that • has no control over where the Elantras containing the fuel a defendant may foresee some of its products’ eventually pumps are sold or shipped. arriving here.” ––– S.W.3d ––––, 2025 WL 1716879 (Tex. June 20, 2025). Because there is no evidence Hyundam Swacina responded to Hyundam's special appearance and targeted Texas, we reverse the judgment of the court of presented evidence purporting to show that Hyundam was appeals and render judgment dismissing the case against subject to personal jurisdiction in Texas: (1) Hyundam Hyundam. designed the fuel pump for the North American region and © 2025 Thomson Reuters. No claim to original U.S. Government Works. 4 Hyundam Industrial Company, Ltd. v. Swacina, --- S.W.3d ---- (2025) 2025 WL 1717010 knew the fuel pumps were sold in Texas; (2) a replacement personal knowledge, shall set forth specific facts as would be Hyundam fuel pump was purchased at a Hyundai dealership admissible in evidence, and shall show affirmatively that the in Texas; (3) Hyundam maintains a website in English that affiant is competent to testify.” Id. To satisfy the personal- is accessible in Texas and that says Hyundam has supplied knowledge requirement, the “affiant must swear that the facts Hyundai with fuel pumps since 1994; and (4) Hyundai sold presented in the affidavit reflect his personal knowledge.” over 97,000 Elantras in the United States in 2009. In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 224 (Tex. 2004). “An affiant's belief about the facts is legally *2 Swacina also objected to Chang's affidavit and moved insufficient.” Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. to strike it because, among other things, it was not based 2008). on Chang's personal knowledge. The trial court overruled Swacina's objections and denied the motion to strike. The Chang begins his affidavit by detailing the various roles he court held a hearing on Hyundam's special appearance and held during the seventeen years he worked at Hyundam and ultimately denied it. Hyundam filed this interlocutory appeal. the knowledge he gained in each role. As Managing Director See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(7). of the Technical R&D Center, Chang oversaw “product development for new vehicle models.” Chang “routinely The court of appeals affirmed. It held that the trial court attend[ed]” business meetings in which he “obtained personal did not abuse its discretion in overruling Swacina's objection knowledge” about the fuel pump's “purchasers, product to the affidavit. 692 S.W.3d 734, 745 (Tex. App.—Corpus distribution chains, and quantities of the product being Christi–Edinburg 2023). The court further held that Hyundam sold” and information about Hyundam's “revenues, sales[,] purposefully availed itself of the privilege of doing business and marketing practices.” Throughout the affidavit, Chang in Texas by designing its fuel pumps for the North American asserted that the “facts are within [his] personal knowledge as region. Id. at 749. It was “of no consequence” that the a result of [his] experience” at Hyundam. North American region includes markets other than Texas because “Hyundam need not ‘single Texas out in some unique *3 [3] [4] [5] An affiant's job responsibilities can give way to satisfy constitutional dictates.’ ” Id. (quoting State v. him personal knowledge of a company's operations and Volkswagen Aktiengesellschaft, 669 S.W.3d 399, 420 (Tex. can establish how he learned of the facts asserted. See 2023)). Valenzuela v. State & Cnty. Mut. Fire Ins. Co., 317 S.W.3d 550, 553-54 (Tex. App.—Houston [14th Dist.] 2010, no This petition followed. pet.). Merely stating that the facts are within the affiant's personal knowledge would be conclusory and insufficient to satisfy the personal-knowledge requirement. See Ryland Grp. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). But the affidavit II here went further. Chang laid a foundation for his personal knowledge by detailing his extensive experience at Hyundam, A the knowledge he obtained in each role, and the documents he reviewed to prepare his affidavit. Most relevant here, [1] We first consider whether the trial court abused its Chang obtained contracts for new vehicle models, learned the discretion by overruling Swacina's objection to Chang's distribution chain of Hyundam's fuel pumps, and was privy to affidavit and denying his motion to strike the affidavit. See information on its sales and marketing practices. Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 727 (Tex. 2016) (stating that appellate courts review a trial court's Because the affidavit was sufficiently based on Chang's evidentiary rulings for abuse of discretion). 1 It did not. personal knowledge, the trial court did not abuse its discretion in overruling Swacina's objection and denying his motion to [2] A trial court must “determine the special appearance strike the affidavit. on the basis of the pleadings, any stipulations made by and between the parties, such affidavits and attachments as may be filed by the parties, the results of discovery processes, B and any oral testimony.” TEX. R. CIV. P. 120a(3). Any affidavit attached to a special appearance “shall be made on © 2025 Thomson Reuters. No claim to original U.S. Government Works. 5 Hyundam Industrial Company, Ltd. v. Swacina, --- S.W.3d ---- (2025) 2025 WL 1717010 [6] We next consider whether Hyundam purposefully availed America,” which, Chang admitted, includes Texas. Swacina itself of the privilege of doing business in Texas such that it argues that designing the fuel pump for North American is subject to specific personal jurisdiction here. We hold that specifications constitutes additional conduct targeting Texas. there is no evidence Hyundam targeted Texas, so it did not We disagree. purposefully avail itself of the Texas market. *4 [14] Designing a product for a region that includes [7] [8] [9] A Texas court may exercise specific personal Texas makes it foreseeable that the product will end up in jurisdiction when the defendant “purposefully avails itself Texas. But the fact that Hyundam designed the fuel pump of the privilege of conducting activities within the forum for North America and knew that it was sold in Texas does [s]tate” and “the plaintiff's claims ‘arise out of or relate to’ not, by itself, constitute additional conduct targeting Texas. those forum contacts.” Volkswagen, 669 S.W.3d at 412-13 It is the defendant's purposeful contacts with Texas—not a (alteration in original) (quoting Ford Motor Co. v. Mont. larger region in which Texas sits—that are relevant to our Eighth Jud. Dist. Ct., 592 U.S. 351, 359, 141 S.Ct. 1017, personal-jurisdiction inquiry. See J. McIntyre Mach., Ltd. v. 209 L.Ed.2d 225 (2021)). When considering whether the Nicastro, 564 U.S. 873, 885-86, 131 S.Ct. 2780, 180 L.Ed.2d defendant purposefully availed itself of Texas, we consider 765 (2011) (plurality opinion). Hyundam did not design the “only the defendant's contacts with the forum ..., not the fuel pump for Texas but rather, for the expansive North unilateral activity of another party or a third person.” Moki American region which contains the United States’ fifty states Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex. and twenty-two other countries. Hyundam had no control 2007). The defendant's contacts must be “purposeful,” not over where vehicles containing its fuel pumps were sold. “random, fortuitous, or attenuated.” Id. Further, the defendant Further, Hyundam has never sought to do business in Texas; “must seek some benefit, advantage[,] or profit by ‘availing’ maintains no offices, employees, or agents in Texas; and does itself of [Texas's] jurisdiction.” Id. (quoting Michiana Easy not advertise, market, or sell its products in Texas. Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex. 2005)). This case is like BRP-Rotax, in which we rejected the argument that a defendant's desire to serve a large region [10] [11] [12] To engage in purposeful availment, our including Texas was evidence of the defendant's purposeful precedent requires that the defendant undertake “some availment of Texas. ––– S.W.3d at ––––. There, a distribution ‘additional conduct’—beyond merely placing the product in agreement between the defendant and a third party required the stream of commerce—that indicates ‘an intent or purpose the third party to advertise and sell the defendant's product to serve the market in the forum [s]tate.’ ” Spir Star AG v. in a territory that spanned two large continents and included Kimich, 310 S.W.3d 868, 873 (Tex. 2010) (quoting Asahi Texas. Id. Here too, Hyundam's designing the fuel pump Metal Indus. Co. v. Super. Ct. of Cal., 480 U.S. 102, 112, for the entire North American region “expresses no view, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (plurality opinion)). much less any command, about whether any business at As we emphasize today in BRP-Rotax, “a key point is all will be transacted in Texas.” Id.; see also Nicastro, 564 that mere awareness, or ‘foreseeability,’ of a product's sale U.S. at 886, 131 S.Ct. 2780 (plurality opinion) (holding that or distribution in Texas ‘alone’ cannot ‘create minimum a foreign manufacturer had not purposefully availed itself contacts’ sufficient to ‘support personal jurisdiction.’ ” ––– of New Jersey despite its intent to serve the entire United S.W.3d at –––– (quoting CSR Ltd. v. Link, 925 S.W.2d 591, States market). Hyundam's manufacturing the fuel pump 595-96 (Tex. 1996)); see also TV Azteca v. Ruiz, 490 S.W.3d for North American specifications makes it foreseeable that 29, 46 (Tex. 2016). The defendant must target Texas; it is some of its products would end up in Texas. But the mere not enough that the “defendant merely foresees [its] product foreseeability or awareness that a product may be sold in ending up there.” Luciano v. SprayFoamPolymers.com, LLC, Texas, standing alone, is insufficient to subject a defendant to 625 S.W.3d 1, 13 (Tex. 2021) (emphasis added). personal jurisdiction in Texas. CSR, 925 S.W.2d at 595-96. [13] This dispute centers on Chang's deposition testimony This case is unlike Volkswagen, in which the defendants that Hyundam “developed and delivered [its] products purposefully availed themselves of every market in which to satisfy specification for North America.” Therefore, their vehicles were present, including Texas, by initiating “Hyundam knew that Hyundai was selling vehicles with fuel recall and service campaigns. 669 S.W.3d at 420, 424. modules built by Hyundam and they were being sold in North “[B]ecause ‘personal jurisdiction requires a forum-by-forum’ © 2025 Thomson Reuters. No claim to original U.S. Government Works. 6 Hyundam Industrial Company, Ltd. v. Swacina, --- S.W.3d ---- (2025) 2025 WL 1717010 analysis, we look[ed] only to the [defendants’] behavior *5 [15] To be sure, we are not suggesting that a foreign directed toward Texas, not their behavior directed elsewhere.” manufacturer must design its products specifically for Texas Id. at 420 (quoting Nicastro, 564 U.S. at 884, 131 S.Ct. to purposefully avail itself of the Texas market. But a foreign 2780 (plurality opinion)). As we explained, the fact that the manufacturer must engage in some conduct targeting Texas. defendants similarly targeted other forums did not negate their Hyundam's designing the fuel pump for a general region with purposeful availment of Texas: no specific targeting of Texas does not clear that bar. [16] Nor do Swacina's three other pieces of evidence show The defendant need not single Texas that Hyundam targeted Texas. First, Swacina presented out in some unique way to satisfy evidence that one of Hyundam's fuel pumps was purchased constitutional dictates. To hold that a in Texas. Chang explained in his affidavit that Hyundam nonresident who has directed activity sold less than one percent of its fuel pumps to Mobis, to every state is not amenable a South Korean company that distributes service parts to to jurisdiction in any state would Hyundai dealerships. Hyundam had no control over where unduly constrain the authority of Mobis distributed the fuel pumps. The replacement fuel pump state courts to hold nonresidents was purchased from Hub Hyundai, a franchised Hyundai accountable for their in-state conduct dealership—not from Hyundam. Swacina does not explain and would convert the specific- how Hub Hyundai obtained the fuel pump—be it from personal-jurisdiction analysis into a Mobis, Hyundai, or Hyundam. Nor is there any evidence that wholly subjective inquiry into the Hyundam had a distribution agreement with any company defendants’ state of mind. in the United States, let alone in Texas. See Asahi, 480 U.S. at 112, 107 S.Ct. 1026 (plurality opinion) (stating that “[a]dditional conduct” targeting the forum may include “marketing the product through a distributor who has agreed Id. The defendants’ targeting of every forum in which their to serve as the sales agent in the forum [s]tate”). The mere products were located (including Texas) could not mean fact that a fuel pump was purchased in Texas is insufficient to that they targeted no forum. Only after concluding that the show that Hyundam acted through an agent or intermediary defendants targeted Texas was it necessary for the Court to to intentionally target Texas. explain that they “need[ed] not” target Texas “in some unique way” from the other forums they targeted to be subject to [17] Second, evidence that Hyundam maintains a website in personal jurisdiction in Texas. Id. English, without more, fails to show that Hyundam targeted Texas. “If any website's mere use of English illustrates an The court of appeals below misapplied Volkswagen by stating attempt to target Texas specifically—as opposed to the other that “Hyundam need not ‘single Texas out in some unique jurisdictions within our nation and across the world that way to satisfy constitutional dictates.’ ” 692 S.W.3d at 749 primarily speak English—then the work of the Texas courts (quoting Volkswagen, 669 S.W.3d at 420). The court of should be expected to grow by massive proportions.” BRP- appeals took Volkswagen to mean that a defendant may be Rotax, ––– S.W.3d at ––––. subject to personal jurisdiction in Texas if the defendant merely targets a general region that includes Texas. Such a [18] Third, evidence of Hyundai's Elantra sales is legally reading flies in the face of our explanation that “the critical insufficient to show that Hyundam targeted Texas. We do inquiry is whether a nonresident defendant has established not consider the unilateral activity of Hyundai, a third party, sufficient contacts with Texas—not whether those contacts in assessing Hyundam's contacts with Texas. See Moncrief are materially different from its contacts with other states.” Oil, 414 S.W.3d at 151. In all, the evidence shows no Volkswagen, 669 S.W.3d at 421 (emphasis added). Unlike more than that the “stream [of commerce] eventually swept in Volkswagen, there is no evidence that Hyundam targeted [Hyundam's] product into” Texas despite Hyundam doing Texas, so our inquiry ends there. See Moncrief Oil Int'l Inc. “nothing else to purposefully avail itself of the [Texas] v. OAO Gazprom, 414 S.W.3d 142, 151 (Tex. 2013) (stating market.” See Asahi, 480 U.S. at 110, 107 S.Ct. 1026 (plurality that courts look only to the defendant's contacts with Texas). opinion). © 2025 Thomson Reuters. No claim to original U.S. Government Works. 7 Hyundam Industrial Company, Ltd. v. Swacina, --- S.W.3d ---- (2025) 2025 WL 1717010 P. 59.1, we grant Hyundam's petition for review, reverse III the judgment of the court of appeals, and render judgment As in BRP-Rotax, our decision today “break[s] no new dismissing the case against Hyundam. jurisprudential ground.” ––– S.W.3d at ––––. Hyundam's awareness that its product may end up in Texas is not, standing All Citations alone, sufficient to subject it to personal jurisdiction in our courts. Without hearing oral argument, see TEX. R. APP. --- S.W.3d ----, 2025 WL 1717010 Footnotes 1 Swacina raised his personal-knowledge argument in his merits brief in this Court and not by cross-petition for review. Swacina's argument is not forfeited by his failure to file a cross-petition because he argues an alternative ground to affirm the court of appeals’ judgment and does not seek to alter the judgment. See TEX. R. APP. P. 53.1 (“A party who seeks to alter the court of appeals’ judgment must file a petition for review.”); Dall./Fort Worth Int'l Airport Bd. v. Vizant Techs., LLC, 576 S.W.3d 362, 366 n.9 (Tex. 2019) (holding that Rule 53.1 does not require a cross-petition when a party raises an argument “as an alternative basis to support [the] judgment”). End of Document © 2025 Thomson Reuters. 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