J. MCINTYRE MACHINERY v. NICASTRO

Opinion of KENNEDY, J.

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
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No. 09–1343

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J. MCINTYRE MACHINERY, LTD., PETITIONER v.

ROBERT NICASTRO, INDIVIDUALLY AND AS

ADMINISTRATOR OF THE ESTATE OF

ROSEANNE NICASTRO

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NEW

JERSEY

[June 27, 2011]

JUSTICE KENNEDY announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE THOMAS join.

Whether a person or entity is subject to the jurisdiction of a state court despite not having been present in the State either at the time of suit or at the time of the alleged injury, and despite not having consented to the exercise of jurisdiction, is a question that arises with great frequency in the routine course of litigation. The rules and standards for determining when a State does or does not have jurisdiction over an absent party have been unclear because of decades-old questions left open in Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U. S. 102 (1987). Here, the Supreme Court of New Jersey, relying in part on Asahi, held that New Jersey’s courts can exercise jurisdiction over a foreign manufacturer of a product so long as the manufacturer “knows or reasonably should know that its products are distributed through a nationwide distribution system that might lead to those products being sold in any of the fifty states.” Nicastro v. McIntyre Machinery America, Ltd., 201 N. J. 48, 76, 77, 987 A. 2d 575, 591, 592 (2010). Applying that test, the court concluded that a British manufacturer of scrap metal machines was subject to jurisdiction in New Jersey, even though at no time had it advertised in, sent goods to, or in any relevant sense targeted the State.

That decision cannot be sustained. Although the New Jersey Supreme Court issued an extensive opinion with careful attention to this Court’s cases and to its own precedent, the “stream of commerce” metaphor carried the decision far afield. Due process protects the defendant’s right not to be coerced except by lawful judicial power. As a general rule, the exercise of judicial power is not lawful unless the defendant “purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U. S. 235, 253 (1958). There may be exceptions, say, for instance, in cases involving an intentional tort. But the general rule is applicable in this products-liability case, and the so-called “stream-ofcommerce” doctrine cannot displace it.

I

This case arises from a products-liability suit filed in New Jersey state court. Robert Nicastro seriously injured his hand while using a metal-shearing machine manufactured by J. McIntyre Machinery, Ltd. (J. McIntyre). The accident occurred in New Jersey, but the machine was manufactured in England, where J. McIntyre is incorporated and operates. The question here is whether the New Jersey courts have jurisdiction over J. McIntyre, notwithstanding the fact that the company at no time either marketed goods in the State or shipped them there. Nicastro was a plaintiff in the New Jersey trial court and is the respondent here; J. McIntyre was a defendant and is now the petitioner.

At oral argument in this Court, Nicastro’s counsel stressed three primary facts in defense of New Jersey’s assertion of jurisdiction over J. McIntyre. See Tr. of Oral Arg. 29–30.

First, an independent company agreed to sell J. McIntyre’s machines in the United States. J. McIntyre itself did not sell its machines to buyers in this country beyond the U. S. distributor, and there is no allegation that the distributor was under J. McIntyre’s control.

Second, J. McIntyre officials attended annual conventions for the scrap recycling industry to advertise J. McIntyre’s machines alongside the distributor. The conventions took place in various States, but never in New Jersey.

Third, no more than four machines (the record suggests only one, see App. to Pet. for Cert. 130a), including the machine that caused the injuries that are the basis for this suit, ended up in New Jersey.

In addition to these facts emphasized by petitioner, the New Jersey Supreme Court noted that J. McIntyre held both United States and European patents on its recycling technology. 201 N. J., at 55, 987 A. 2d, at 579. It also noted that the U. S. distributor “structured [its] advertising and sales efforts in accordance with” J. McIntyre’s “direction and guidance whenever possible,” and that “at least some of the machines were sold on consignment to” the distributor. Id./i>, at 55, 56, 987 A. 2d, at 579 (internal quotation marks omitted).

In light of these facts, the New Jersey Supreme Court concluded that New Jersey courts could exercise jurisdiction over petitioner without contravention of the Due Process Clause. Jurisdiction was proper, in that court’s view, because the injury occurred in New Jersey; because petitioner knew or reasonably should have known “that its products are distributed through a nationwide distribution system that might lead to those products being sold in any of the fifty states”; and because petitioner failed to “take some reasonable step to prevent the distribution of its products in this State.” Id., at 77, 987 A. 2d, at 592.

Both the New Jersey Supreme Court’s holding and its account of what it called “[t]he stream-of-commerce doctrine of jurisdiction,” id., at 80, 987 A. 2d, at 594, were incorrect, however. This Court’s Asahi decision may be responsible in part for that court’s error regarding the stream of commerce, and this case presents an opportunity to provide greater clarity.

II

The Due Process Clause protects an individual’s right to be deprived of life, liberty, or property only by the exercise of lawful power. Cf. Giaccio v. Pennsylvania, 382 U. S. 399, 403 (1966) (The Clause “protect[s] a person against having the Government impose burdens upon him except in accordance with the valid laws of the land”). This is no less true with respect to the power of a sovereign to resolve disputes through judicial process than with respect to the power of a sovereign to prescribe rules of conduct for those within its sphere. See Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 94 (1998) (“Jurisdiction is power to declare the law”). As a general rule, neither statute nor judicial decree may bind strangers to the State. Cf. Burnham v. Superior Court of Cal., County of Marin, 495 U. S. 604, 608–609 (1990) (opinion of SCALIA, J.) (invoking “the phrase coram non judice, ‘before a person not a judge’—meaning, in effect, that the proceeding in question was not a judicial proceeding because lawful judicial authority was not present, and could therefore not yield a judgment”)

A court may subject a defendant to judgment only when the defendant has sufficient contacts with the sovereign “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U. S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U. S. 457, 463 (1940)). Freeform notions of fundamental fairness divorced from traditional practice cannot transform a judgment rendered in the absence of authority into law. As a general rule, the sovereign’s exercise of power requires some act by which the defendant “purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws,” Hanson, 357 U. S., at 253, though in some cases, as with an intentional tort, the defendant might well fall within the State’s authority by reason of his attempt to obstruct its laws. In products-liability cases like this one, it is the defendant’s purposeful availment that makes jurisdiction consistent with “traditional notions of fair play and substantial justice.”

A person may submit to a State’s authority in a number of ways. There is, of course, explicit consent. E.g., Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U. S. 694, 703 (1982). Presence within a State at the time suit commences through service of process is another example. See Burnham, supra. Citizenship or domicile—or, by analogy, incorporation or principal place of business for corporations—also indicates general submission to a State’s powers. Goodyear Dunlop Tires Operations, S. A. v. Brown, post, p. __. Each of these examples reveals circumstances, or a course of conduct, from which it is proper to infer an intention to benefit from and thus an intention to submit to the laws of the forum State. Cf. Burger King Corp. v. Rudzewicz, 471 U. S. 462, 476 (1985). These examples support exercise of the general jurisdiction of the State’s courts and allow the State to resolve both matters that originate within the State and those based on activities and events elsewhere. Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U. S. 408, 414, and n. 9 (1984). By contrast, those who live or operate primarily outside a State have a due process right not to be subjected to judgment in its courts as a general matter.

There is also a more limited form of submission to a State’s authority for disputes that “arise out of or are connected with the activities within the state.” International Shoe Co., supra, at 319. Where a defendant “purposefully avails itself of the privilege of conducting activities within the invoking the benefits and forum State, thus protections of its laws,” Hanson, supra, at 253, it submits to the judicial power of an otherwise foreign sovereign to the extent that power is exercised in connection with the defendant’s activities touching on the State. In other words, submission through contact with and activity directed at a sovereign may justify specific jurisdiction “in a suit arising out of or related to the defendant’s contacts with the forum.” Helicopteros, supra, at 414, n. 8; see also Goodyear, post, at 2.

The imprecision arising from Asahi, for the most part, results from its statement of the relation between jurisdiction and the “stream of commerce.” The stream of commerce, like other metaphors, has its deficiencies as well as its utility. It refers to the movement of goods from manufacturers through distributors to consumers, yet beyond that descriptive purpose its meaning is far from exact. This Court has stated that a defendant’s placing goods into the stream of commerce “with the expectation that they will be purchased by consumers within the forum State” may indicate purposeful availment. World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 298 (1980) (finding that expectation lacking). But that statement does not amend the general rule of personal jurisdiction. It merely observes that a defendant may in an appropriate case be subject to jurisdiction without entering the forum—itself an unexceptional proposition—as where manufacturers or distributors “seek to serve” a given State’s market. Id., at 295. The principal inquiry in cases of this sort is whether the defendant’s activities manifest an intention to submit to the power of a sovereign. In other words, the defendant must “purposefully avai[l] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson, supra, at 253; Insurance Corp., supra, at 704–705 (“[A]ctions of the defendant may amount to a legal submission to the jurisdiction of the court”). Sometimes a defendant does so by sending its goods rather than its agents. The defendant’s transmission of goods permits the exercise of jurisdiction only where the defendant can be said to have targeted the forum; as a general rule, it is not enough that the defendant might have predicted that its goods will reach the forum State.

In Asahi, an opinion by Justice Brennan for four Justices outlined a different approach. It discarded the central concept of sovereign authority in favor of considerations of fairness and foreseeability. As that concurrence contended, “jurisdiction premised on the placement of a product into the stream of commerce [without more] is consistent with the Due Process Clause,” for “[a]s long as a participant in this process is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise.” 480 U. S., at 117 (opinion concurring in part and concurring in judgment). It was the premise of the concurring opinion that the defendant’s ability to anticipate suit renders the assertion of jurisdiction fair. In this way, the opinion made foreseeability the touchstone of jurisdiction.

The standard set forth in Justice Brennan’s concurrence was rejected in an opinion written by Justice O’Connor; but the relevant part of that opinion, too, commanded the assent of only four Justices, not a majority of the Court. That opinion stated: “The ‘substantial connection’ between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State. The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State.” Id., at 112 (emphasis deleted; citations omitted).

Since Asahi was decided, the courts have sought to reconcile the competing opinions. But Justice Brennan’s concurrence, advocating a rule based on general notions of fairness and foreseeability, is inconsistent with the premises of lawful judicial power. This Court’s precedents make clear that it is the defendant’s actions, not his expectations, that empower a State’s courts to subject him to judgment.

The conclusion that jurisdiction is in the first instance a question of authority rather than fairness explains, for example, why the principal opinion in Burnham “conducted no independent inquiry into the desirability or fairness” of the rule that service of process within a State suffices to establish jurisdiction over an otherwise foreign defendant. 495 U. S., at 621. As that opinion explained, “[t]he view developed early that each State had the power to hale before its courts any individual who could be found within its borders.” Id., at 610. Furthermore, were general fairness considerations the touchstone of jurisdiction, a lack of purposeful availment might be excused where carefully crafted judicial procedures could otherwise protect the defendant’s interests, or where the plaintiff would suffer substantial hardship if forced to litigate in a foreign forum. That such considerations have not been deemed controlling is instructive. See, e.g., World-Wide Volkswagen, supra, at 294.

Two principles are implicit in the foregoing. First, personal jurisdiction requires a forum-by-forum, or sovereignby-sovereign, analysis. The question is whether a defendant has followed a course of conduct directed at the society or economy existing within the jurisdiction of a given sovereign, so that the sovereign has the power to subject the defendant to judgment concerning that conduct. Personal jurisdiction, of course, restricts “judicial power not as a matter of sovereignty, but as a matter of individual liberty,” for due process protects the individual’s right to be subject only to lawful power. Insurance Corp., 456 U. S., at 702. But whether a judicial judgment is lawful depends on whether the sovereign has authority to render it.

The second principle is a corollary of the first. Because the United States is a distinct sovereign, a defendant may in principle be subject to the jurisdiction of the courts of the United States but not of any particular State. This is consistent with the premises and unique genius of our Constitution. Ours is “a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.” U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838 (1995) (KENNEDY, J., concurring). For jurisdiction, a litigant may have the requisite relationship with the United States Government but not with the government of any individual State. That would be an exceptional case, however. If the defendant is a domestic domiciliary, the courts of its home State are available and can exercise general jurisdiction. And if another State were to assert jurisdiction in an inappropriate case, it would upset the federal balance, which posits that each State has a sovereignty that is not subject to unlawful intrusion by other States. Furthermore, foreign corporations will often target or concentrate on particular States, subjecting them to specific jurisdiction in those forums. It must be remembered, however, that although this case and Asahi both involve foreign manufacturers, the undesirable consequences of Justice Brennan’s approach are no less significant for domestic producers. The owner of a small Florida farm might sell crops to a large nearby distributor, for example, who might then distribute them to grocers across the country. If foreseeability were the controlling criterion, the farmer could be sued in Alaska or any number of other States’ courts without ever leaving town. And the issue of foreseeability may itself be contested so that significant expenses are incurred just on the preliminary issue of jurisdiction. Jurisdictional rules should avoid these costs whenever possible.

The conclusion that the authority to subject a defendant to judgment depends on purposeful availment, consistent with Justice O’Connor’s opinion in Asahi, does not by itself resolve many difficult questions of jurisdiction that will arise in particular cases. The defendant’s conduct and the economic realities of the market the defendant seeks to serve will differ across cases, and judicial exposition will, in common-law fashion, clarify the contours of that principle.

III

In this case, petitioner directed marketing and sales efforts at the United States. It may be that, assuming it were otherwise empowered to legislate on the subject, the Congress could authorize the exercise of jurisdiction in appropriate courts. That circumstance is not presented in this case, however, and it is neither necessary nor appropriate to address here any constitutional concerns that might be attendant to that exercise of power. See Asahi, 480 U. S., at 113, n. Nor is it necessary to determine what substantive law might apply were Congress to authorize jurisdiction in a federal court in New Jersey. See Hanson, 357 U. S., at 254 (“The issue is personal jurisdiction, not choice of law”). A sovereign’s legislative authority to regulate conduct may present considerations different from those presented by its authority to subject a defendant to judgment in its courts. Here the question concerns the authority of a New Jersey state court to exercise jurisdiction, so it is petitioner’s purposeful contacts with New Jersey, not with the United States, that alone are relevant.

Respondent has not established that J. McIntyre engaged in conduct purposefully directed at New Jersey. Recall that respondent’s claim of jurisdiction centers on three facts: The distributor agreed to sell J. McIntyre’s machines in the United States; J. McIntyre officials attended trade shows in several States but not in New Jersey; and up to four machines ended up in New Jersey. The British manufacturer had no office in New Jersey; it neither paid taxes nor owned property there; and it neither advertised in, nor sent any employees to, the State. Indeed, after discovery the trial court found that the “defendant does not have a single contact with New Jersey short of the machine in question ending up in this state.” App. to Pet. for Cert. 130a. These facts may reveal an intent to serve the U. S. market, but they do not show that J. McIntyre purposefully availed itself of the New Jersey market.

It is notable that the New Jersey Supreme Court appears to agree, for it could “not find that J. McIntyre had a presence or minimum contacts in this State—in any jurisprudential sense—that would justify a New Jersey court to exercise jurisdiction in this case.” 201 N. J., at 61, 987 A. 2d, at 582. The court nonetheless held that petitioner could be sued in New Jersey based on a “stream-ofcommerce theory of jurisdiction.” Ibid. As discussed, however, the stream-of-commerce metaphor cannot supersede either the mandate of the Due Process Clause or the limits on judicial authority that Clause ensures. The New Jersey Supreme Court also cited “significant policy reasons” to justify its holding, including the State’s “strong interest in protecting its citizens from defective products.” Id., at 75, 987 A. 2d, at 590. That interest is doubtless strong, but the Constitution commands restraint before discarding liberty in the name of expediency.

* * *

Due process protects petitioner’s right to be subject only to lawful authority. At no time did petitioner engage in any activities in New Jersey that reveal an intent to invoke or benefit from the protection of its laws. New Jersey is without power to adjudge the rights and liabilities of J. McIntyre, and its exercise of jurisdiction would violate due process. The contrary judgment of the New Jersey Supreme Court is Reversed.

BREYER, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
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No. 09–1343

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J. MCINTYRE MACHINERY, LTD., PETITIONER v.

ROBERT NICASTRO, INDIVIDUALLY AND AS

ADMINISTRATOR OF THE ESTATE OF

ROSEANNE NICASTRO

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NEW

JERSEY

[June 27, 2011]

JUSTICE BREYER, with whom JUSTICE ALITO joins, concurring in the judgment.

The Supreme Court of New Jersey adopted a broad understanding of the scope of personal jurisdiction based on its view that “[t]he increasingly fast-paced globalization of the world economy has removed national borders as barriers to trade.” Nicastro v. McIntyre Machinery America, Ltd., 201 N. J. 48, 52, 987 A. 2d 575, 577 (2010). I do not doubt that there have been many recent changes in commerce and communication, many of which are not anticipated by our precedents. But this case does not present any of those issues. So I think it unwise to announce a rule of broad applicability without full consideration of the modern-day consequences.

In my view, the outcome of this case is determined by our precedents. Based on the facts found by the New Jersey courts, respondent Robert Nicastro failed to meet his burden to demonstrate that it was constitutionally proper to exercise jurisdiction over petitioner J. McIntyre Machinery, Ltd. (British Manufacturer), a British firm that manufactures scrap-metal machines in Great Britain and sells them through an independent distributor in the United States (American Distributor). On that basis, I agree with the plurality that the contrary judgment of the Supreme Court of New Jersey should be reversed.

I

In asserting jurisdiction over the British Manufacturer, the Supreme Court of New Jersey relied most heavily on three primary facts as providing constitutionally sufficient “contacts” with New Jersey, thereby making it fundamentally fair to hale the British Manufacturer before its courts: (1) The American Distributor on one occasion sold and shipped one machine to a New Jersey customer, namely, Mr. Nicastro’s employer, Mr. Curcio; (2) the British Manufacturer permitted, indeed wanted, its independent American Distributor to sell its machines to anyone in America willing to buy them; and (3) representatives of the British Manufacturer attended trade shows in “such cities as Chicago, Las Vegas, New Orleans, Orlando, San Diego, and San Francisco.” Id., at 54–55, 987 A. 2d, at 578–579. In my view, these facts do not provide contacts between the British firm and the State of New Jersey constitutionally sufficient to support New Jersey’s assertion of jurisdiction in this case.

None of our precedents finds that a single isolated sale, even if accompanied by the kind of sales effort indicated here, is sufficient. Rather, this Court’s previous holdings suggest the contrary. The Court has held that a single sale to a customer who takes an accident-causing product to a different State (where the accident takes place) is not a sufficient basis for asserting jurisdiction. See WorldWide Volkswagen Corp. v. Woodson, 444 U. S. 286 (1980). And the Court, in separate opinions, has strongly suggested that a single sale of a product in a State does not constitute an adequate basis for asserting jurisdiction over an out-of-state defendant, even if that defendant places his goods in the stream of commerce, fully aware (and hoping) that such a sale will take place. See Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U. S. 102, 111, 112 (1987) (opinion of O’Connor, J.) (requiring “something more” than simply placing “a product into the stream of commerce,” even if defendant is “awar[e]” that the stream “may or will sweep the product into the forum State”); id., at 117 (Brennan, J., concurring in part and concurring in judgment) (jurisdiction should lie where a sale in a State is part of “the regular and anticipated flow” of commerce into the State, but not where that sale is only an “edd[y],” i.e., an isolated occurrence); id., at 122 (Stevens, J., concurring in part and concurring in judgment) (indicating that “the volume, the value, and the hazardous character” of a good may affect the jurisdictional inquiry and emphasizing Asahi’s “regular course of dealing”).

Here, the relevant facts found by the New Jersey Supreme Court show no “regular . . . flow” or “regular course” of sales in New Jersey; and there is no “something more,” such as special state-related design, advertising, advice, marketing, or anything else. Mr. Nicastro, who here bears the burden of proving jurisdiction, has shown no specific effort by the British Manufacturer to sell in New Jersey. He has introduced no list of potential New Jersey customers who might, for example, have regularly attended trade shows. And he has not otherwise shown that the British Manufacturer “purposefully avail[ed] itself of the privilege of conducting activities” within New Jersey, or that it delivered its goods in the stream of commerce “with the expectation that they will be purchased” by New Jersey users. World-Wide Volkswagen, supra, at 297–298 (internal quotation marks omitted).

There may well have been other facts that Mr. Nicastro could have demonstrated in support of jurisdiction. And the dissent considers some of those facts. See post, at 3 (opinion of GINSBURG, J.) (describing the size and scope of New Jersey’s scrap-metal business). But the plaintiff bears the burden of establishing jurisdiction, and here I would take the facts precisely as the New Jersey Supreme Court stated them. Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U. S. 694, 709 (1982); Blakey v. Continental Airlines, Inc., 164 N. J. 38, 71, 751 A. 2d 538, 557 (2000); see 201 N. J., at 54–56, 987 A. 2d, at 578–579; App. to Pet. for Cert. 128a–137a (trial court’s “reasoning and finding(s)”).

Accordingly, on the record present here, resolving this case requires no more than adhering to our precedents.

II

I would not go further. Because the incident at issue in this case does not implicate modern concerns, and because the factual record leaves many open questions, this is an unsuitable vehicle for making broad pronouncements that refashion basic jurisdictional rules.

A

The plurality seems to state strict rules that limit jurisdiction where a defendant does not “inten[d] to submit to the power of a sovereign” and cannot “be said to have targeted the forum.” Ante, at 7. But what do those standards mean when a company targets the world by selling products from its Web site? And does it matter if, instead of shipping the products directly, a company consigns the products through an intermediary (say, Amazon.com) who then receives and fulfills the orders? And what if the company markets its products through popup advertisements that it knows will be viewed in a forum? Those issues have serious commercial consequences but are totally absent in this case.

B

But though I do not agree with the plurality’s seemingly strict no-jurisdiction rule, I am not persuaded by the absolute approach adopted by the New Jersey Supreme Court and urged by respondent and his amici. Under that view, a producer is subject to jurisdiction for a productsliability action so long as it “knows or reasonably should know that its products are distributed through a nationwide distribution system that might lead to those products being sold in any of the fifty states.” 201 N. J., at 76–77, 987 A. 2d, at 592 (emphasis added). In the context of this case, I cannot agree.

For one thing, to adopt this view would abandon the heretofore accepted inquiry of whether, focusing upon the relationship between “the defendant, the forum, and the litigation,” it is fair, in light of the defendant’s contacts with that forum, to subject the defendant to suit there. Shaffer v. Heitner, 433 U. S. 186, 204 (1977) (emphasis added). It would ordinarily rest jurisdiction instead upon no more than the occurrence of a product-based accident in the forum State. But this Court has rejected the notion that a defendant’s amenability to suit “travel[s] with the chattel.” World-Wide Volkswagen, 444 U. S., at 296.

For another, I cannot reconcile so automatic a rule with the constitutional demand for “minimum contacts” and “purposefu[l] avail[ment],” each of which rest upon a particular notion of defendant-focused fairness. Id., at 291, 297 (internal quotation marks omitted). A rule like the New Jersey Supreme Court’s would permit every State to assert jurisdiction in a products-liability suit against any domestic manufacturer who sells its products (made anywhere in the United States) to a national distributor, no matter how large or small the manufacturer, no matter how distant the forum, and no matter how few the number of items that end up in the particular forum at issue. What might appear fair in the case of a large manufacturer which specifically seeks, or expects, an equal-sized distributor to sell its product in a distant State might seem unfair in the case of a small manufacturer (say, an Appalachian potter) who sells his product (cups and saucers) exclusively to a large distributor, who resells a single item (a coffee mug) to a buyer from a distant State (Hawaii). I know too little about the range of these or inbetween possibilities to abandon in favor of the more absolute rule what has previously been this Court’s less absolute approach.

Further, the fact that the defendant is a foreign, rather than a domestic, manufacturer makes the basic fairness of an absolute rule yet more uncertain. I am again less certain than is the New Jersey Supreme Court that the nature of international commerce has changed so significantly as to require a new approach to personal jurisdiction.

It may be that a larger firm can readily “alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with the State.” World-Wide Volkswagen, supra, at 297. But manufacturers come in many shapes and sizes. It may be fundamentally unfair to require a small Egyptian shirt maker, a Brazilian manufacturing cooperative, or a Kenyan coffee farmer, selling its products through international distributors, to respond to products-liability tort suits in virtually every State in the United States, even those in respect to which the foreign firm has no connection at all but the sale of a single (allegedly defective) good. And a rule like the New Jersey Supreme Court suggests would require every product manufacturer, large or small, selling to American distributors to understand not only the tort law of every State, but also the wide variance in the way courts within different States apply that law. See, e.g., Dept. of Justice, Bureau of Justice Statistics Bulletin, Tort Trials and Verdicts in Large Counties, 2001, p. 11 (reporting percentage of plaintiff winners in tort trials among 46 populous counties, ranging from 17.9% (Worcester, Mass.) to 69.1% (Milwaukee, Wis.)). C

At a minimum, I would not work such a change to the law in the way either the plurality or the New Jersey Supreme Court suggests without a better understanding of the relevant contemporary commercial circumstances. Insofar as such considerations are relevant to any change in present law, they might be presented in a case (unlike the present one) in which the Solicitor General participates. Cf. Tr. of Oral Arg. in Goodyear Dunlop Tires Operations, S. A. v. Brown, O. T. 2010, No. 10–76, pp. 20–22 (Government declining invitation at oral argument to give its views with respect to issues in this case).

This case presents no such occasion, and so I again reiterate that I would adhere strictly to our precedents and the limited facts found by the New Jersey Supreme Court. And on those grounds, I do not think we can find jurisdiction in this case. Accordingly, though I agree with the plurality as to the outcome of this case, I concur only in the judgment of that opinion and not its reasoning.

GINSBURG, J., dissenting

SUPREME COURT OF THE UNITED STATES
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No. 09–1343

_________________

J. MCINTYRE MACHINERY, LTD., PETITIONER v.

ROBERT NICASTRO, INDIVIDUALLY AND AS

ADMINISTRATOR OF THE ESTATE OF

ROSEANNE NICASTRO

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NEW

JERSEY

[June 27, 2011]

JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR and JUSTICE KAGAN join, dissenting.

A foreign industrialist seeks to develop a market in the United States for machines it manufactures. It hopes to derive substantial revenue from sales it makes to United States purchasers. Where in the United States buyers reside does not matter to this manufacturer. Its goal is simply to sell as much as it can, wherever it can. It excludes no region or State from the market it wishes to reach. But, all things considered, it prefers to avoid products liability litigation in the United States. To that end, it engages a U. S. distributor to ship its machines stateside. Has it succeeded in escaping personal jurisdiction in a State where one of its products is sold and causes injury or even death to a local user?

Under this Court’s pathmarking precedent in International Shoe Co. v. Washington, 326 U. S. 310 (1945), and subsequent decisions, one would expect the answer to be unequivocally, “No.” But instead, six Justices of this Court, in divergent opinions, tell us that the manufacturer has avoided the jurisdiction of our state courts, except perhaps in States where its products are sold in sizeable quantities. Inconceivable as it may have seemed yesterday, the splintered majority today “turn[s] the clock back to the days before modern long-arm statutes when a manufacturer, to avoid being haled into court where a user is injured, need only Pilate-like wash its hands of a product by having independent distributors market it.” Weintraub, A Map Out of the Personal Jurisdiction Labyrinth, 28 U. C. Davis L. Rev. 531, 555 (1995).

I

On October 11, 2001, a three-ton metal shearing machine severed four fingers on Robert Nicastro’s right hand. Nicastro v. McIntyre Machinery America, Ltd., 201 N. J. 48, 53, 987 A. 2d 575, 577 (2010); see App. 6a–8a (Complaint). Alleging that the machine was a dangerous product defectively made, Nicastro sought compensation from the machine’s manufacturer, J. McIntyre Machinery Ltd. (McIntyre UK). Established in 1872 as a United Kingdom corporation, and headquartered in Nottingham, England, McIntyre UK “designs, develops and manufactures a complete range of equipment for metal recycling.” Id., at 22a, 33a. The company’s product line, as advertised on McIntyre UK’s Web site, includes “metal shears, balers, cable and can recycling equipment, furnaces, casting equipment and . . . the world’s best aluminium dross processing and cooling system.” Id., at 31a. McIntyre UK holds both United States and European patents on its technology. 201 N. J., at 55, 987 A. 2d, at 579; App. 36a.

The machine that injured Nicastro, a “McIntyre Model 640 Shear,” sold in the United States for $24,900 in 1995, id., at 43a, and features a “massive cutting capacity,” id., at 44a. According to McIntyre UK’s product brochure, the machine is “use[d] throughout the [w]orld.” Ibid. McIntyre UK represented in the brochure that, by “incorporat[ing] off-the-shelf hydraulic parts from suppliers with international sales outlets,” the 640 Shear’s design guarantees serviceability “wherever [its customers] may be based.” Ibid. The instruction manual advises “owner[s] and operators of a 640 Shear [to] make themselves aware of [applicable health and safety regulations],” including “the American National Standards Institute Regulations (USA) for the use of Scrap Metal Processing Equipment.” Id., at 46a.

Nicastro operated the 640 Shear in the course of his employment at Curcio Scrap Metal (CSM) in Saddle Brook, New Jersey. Id., at 7a, 43a. “New Jersey has long been a hotbed of scrap-metal businesses . . . .” See Drake, The Scrap-Heap Rollup Hits New Jersey, Business News New Jersey, June 1, 1998, p. 1. In 2008, New Jersey recycling facilities processed 2,013,730 tons of scrap iron, steel, aluminum, and other metals—more than any other State—outpacing Kentucky, its nearest competitor, by nearly 30 percent. Von Haaren, Themelis, & Goldstein, The State of Garbage in America, BioCycle, Oct. 2010, p. 19.

CSM’s owner, Frank Curcio, “first heard of [McIntyre UK’s] machine while attending an Institute of Scrap Metal Industries [(ISRI)] convention in Las Vegas in 1994 or 1995, where [McIntyre UK] was an exhibitor.” App. 78a. ISRI “presents the world’s largest scrap recycling industry trade show each year.” Id., at 47a. The event attracts “owners [and] managers of scrap processing companies” and others “interested in seeing—and purchasing—new equipment.” Id., at 48a–49a. According to ISRI, more than 3,000 potential buyers of scrap processing and recycling equipment attend its annual conventions, “primarily because th[e] exposition provides them with the most comprehensive industry-related shopping experience concentrated in a single, convenient location.” Id., at 47a. Exhibitors who are ISRI members pay $3,000 for 10’ x 10’ booth space. Id., at 48a–49a.1 McIntyre UK representatives attended every ISRI convention from 1990 through 2005. Id., at 114a–115a. These annual expositions were held in diverse venues across the United States; in addition to Las Vegas, conventions were held 1990–2005 in New Orleans, Orlando, San Antonio, and San Francisco. Ibid. McIntyre UK’s president, Michael Pownall, regularly attended ISRI conventions. Ibid. He attended ISRI’s Las Vegas convention the year CSM’s owner first learned of, and saw, the 640 Shear. Id., at 78a–79a, 115a. McIntyre UK exhibited its products at ISRI trade shows, the company acknowledged, hoping to reach “anyone interested in the machine from anywhere in the United States.” Id., at 161a.

Although McIntyre UK’s U. S. sales figures are not in the record, it appears that for several years in the 1990’s, earnings from sales of McIntyre UK products in the United States “ha[d] been good” in comparison to “the rest of the world.” Id., at 136a (Letter from Sally Johnson, McIntyre UK’s Managing Director, to Gary and Mary Gaither, officers of McIntyre UK’s exclusive distributor in the United States (Jan. 13, 1999)). In response to interrogatories, McIntyre UK stated that its commissioning engineer had installed the company’s equipment in several States—Illinois, Iowa, Kentucky, Virginia, and Washington. Id., at 119a.

From at least 1995 until 2001, McIntyre UK retained an Ohio-based company, McIntyre Machinery America, Ltd. (McIntyre America), “as its exclusive distributor for the entire United States.” Nicastro v. McIntyre Machinery America, Ltd., 399 N. J. Super. 539, 558, 945 A. 2d 92, 104 (App. 2008).2 Though similarly named, the two companies were separate and independent entities with “no commonality of ownership or management.” Id., at 545, 945 A. 2d, at 95. In invoices and other written communications, McIntyre America described itself as McIntyre UK’s national distributor, “America’s Link” to “Quality Metal Processing Equipment” from England. App. 43a, 78a.

In a November 23, 1999 letter to McIntyre America, McIntyre UK’s president spoke plainly about the manufacturer’s objective in authorizing the exclusive distributorship: “All we wish to do is sell our products in the [United] States—and get paid!” Id., at 134a. Notably, McIntyre America was concerned about U. S. litigation involving McIntyre UK products, in which the distributor had been named as a defendant. McIntyre UK counseled McIntyre America to respond personally to the litigation, but reassured its distributor that “the product was built and designed by McIntyre Machinery in the UK and the buck stops here—if there’s something wrong with the machine.” Id., at 129a–130a. Answering jurisdictional interrogatories, McIntyre UK stated that it had been named as a defendant in lawsuits in Illinois, Kentucky, Massachusetts, and West Virginia. Id., at 98a, 108a. And in correspondence with McIntyre America, McIntyre UK noted that the manufacturer had products liability insurance coverage. Id., at 129a.

Over the years, McIntyre America distributed several McIntyre UK products to U. S. customers, including, in addition to the 640 Shear, McIntyre UK’s “Niagara” and “Tardis” systems, wire strippers, and can machines. Id., at 123a–128a. In promoting McIntyre UK’s products at conventions and demonstration sites and in trade journal advertisements, McIntyre America looked to McIntyre UK for direction and guidance. Ibid. To achieve McIntyre UK’s objective, i.e., “to sell [its] machines to customers throughout the United States,” 399 N. J. Super., at 548, 945 A. 2d, at 97, “the two companies [were acting] closely in concert with each other,” ibid. McIntyre UK never instructed its distributor to avoid certain States or regions of the country; rather, as just noted, the manufacturer engaged McIntyre America to attract customers “from anywhere in the United States.” App. 161a.

In sum, McIntyre UK’s regular attendance and exhibitions at ISRI conventions was surely a purposeful step to reach customers for its products “anywhere in the United States.” At least as purposeful was McIntyre UK’s engagement of McIntyre America as the conduit for sales of McIntyre UK’s machines to buyers “throughout the United States.” Given McIntyre UK’s endeavors to reach and profit from the United States market as a whole, Nicastro’s suit, I would hold, has been brought in a forum entirely appropriate for the adjudication of his claim. He alleges that McIntyre UK’s shear machine was defectively designed or manufactured and, as a result, caused injury to him at his workplace. The machine arrived in Nicastro’s New Jersey workplace not randomly or fortuitously, but as a result of the U. S. connections and distribution system that McIntyre UK deliberately arranged.3 On what sensible view of the allocation of adjudicatory authority could the place of Nicastro’s injury within the United States be deemed off limits for his products liability claim against a foreign manufacturer who targeted the United States (including all the States that constitute the Nation) as the territory it sought to develop?

II

A few points on which there should be no genuine debate bear statement at the outset. First, all agree, McIntyre UK surely is not subject to general (all-purpose) jurisdiction in New Jersey courts, for that foreign-country corporation is hardly “at home” in New Jersey. See Goodyear Dunlop Tires Operations, S. A. v. Brown, post, at 2–3, 9–13. The question, rather, is one of specific jurisdiction, which turns on an “affiliatio[n] between the forum and the underlying controversy.” Goodyear Dunlop, post, at 2 (quoting von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121, 1136 (1966) (hereinafter von Mehren & Trautman); internal quotation marks omitted); see also Goodyear Dunlop, post, at 7–8.

Second, no issue of the fair and reasonable allocation of adjudicatory authority among States of the United States is present in this case. New Jersey’s exercise of personal jurisdiction over a foreign manufacturer whose dangerous product caused a workplace injury in New Jersey does not tread on the domain, or diminish the sovereignty, of any sister State. Indeed, among States of the United States, the State in which the injury occurred would seem most suitable for litigation of a products liability tort claim. See World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 297 (1980) (if a manufacturer or distributor endeavors to develop a market for a product in several States, it is reasonable “to subject it to suit in one of those States if its allegedly defective [product] has there been the source of injury”); 28 U. S. C. §1391(a)–(b) (in federal-court suits, whether resting on diversity or federal-question jurisdiction, venue is proper in the judicial district “in which a substantial part of the events or omissions giving rise to the claim occurred”).

Third, the constitutional limits on a state court’s adjudicatory authority derive from considerations of due process, not state sovereignty. As the Court clarified in Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U. S. 694 (1982): “The restriction on state sovereign power described in World-Wide Volkswagen Corp. . . . must be seen as ultimately a function of the individual liberty interest preserved by the Due Process Clause. That Clause is the only source of the personal jurisdiction requirement and the Clause itself makes no mention of federalism concerns. Furthermore, if the federalism concept operated as an independent restriction on the sovereign power of the court, it would not be possible to waive the personal jurisdiction requirement: Individual actions cannot change the powers of sovereignty, although the individual can subject himself to powers from which he may otherwise be protected.” Id., at 703, n. 10. See also Shaffer v. Heitner, 433 U. S. 186, 204, and n. 20 (1977) (recognizing that “the mutually exclusive sovereignty of the States [is not] the central concern of the inquiry into personal jurisdiction”). But see ante, at 7 (plurality opinion) (asserting that “sovereign authority,” not “fairness,” is the “central concept” in determining personal jurisdiction).

Finally, in International Shoe itself, and decisions thereafter, the Court has made plain that legal fictions, notably “presence” and “implied consent,” should be discarded, for they conceal the actual bases on which jurisdiction rests. See 326 U. S., at 316, 318; Hutchinson v. Chase & Gilbert, 45 F. 2d 139, 141 (CA2 1930) (L. Hand, J.) (“nothing is gained by [resort to words that] concea[l] what we do”). “[T]he relationship among the defendant, the forum, and the litigation” determines whether due process permits the exercise of personal jurisdiction over a defendant, Shaf- fer, 433 U. S., at 204, and “fictions of implied consent” or “corporate presence” do not advance the proper inquiry, id., at 202. See also Burnham v. Superior Court of Cal., County of Marin, 495 U. S. 604, 618 (1990) (plurality opinion) (International Shoe “cast . . . aside” fictions of “consent” and “presence”).

Whatever the state of academic debate over the role of consent in modern jurisdictional doctrines,4 the plurality’s notion that consent is the animating concept draws no support from controlling decisions of this Court. Quite the contrary, the Court has explained, a forum can exercise jurisdiction when its contacts with the controversy are sufficient; invocation of a fictitious consent, the Court has repeatedly said, is unnecessary and unhelpful. See, e.g., Burger King Corp. v. Rudzewicz, 471 U. S. 462, 472 (1985) (Due Process Clause permits “forum . . . to assert specific jurisdiction over an out-of-state defendant who has not consented to suit there”); McGee v. International Life Ins. Co., 355 U. S. 220, 222 (1957) (“[T]his Court [has] abandoned ‘consent,’ ‘doing business,’ and ‘presence’ as the standard for measuring the extent of state judicial power over [out-of-state] corporations.”).5

III

This case is illustrative of marketing arrangements for sales in the United States common in today’s commercial world.6 A foreign-country manufacturer engages a U. S. company to promote and distribute the manufacturer’s products, not in any particular State, but anywhere and everywhere in the United States the distributor can attract purchasers. The product proves defective and injures a user in the State where the user lives or works. Often, as here, the manufacturer will have liability insurance covering personal injuries caused by its products. See Cupp, Redesigning Successor Liability, 1999 U. Ill. L. Rev. 845, 870–871 (noting the ready availability of products liability insurance for manufacturers and citing a study showing, “between 1986 and 1996, [such] insurance cost manufacturers, on average, only sixteen cents for each $100 of product sales”); App. 129–130.

When industrial accidents happen, a long-arm statute in the State where the injury occurs generally permits assertion of jurisdiction, upon giving proper notice, over the foreign manufacturer. For example, the State’s statute might provide, as does New York’s long-arm statute, for the “exercise [of] personal jurisdiction over any nondomiciliary . . . who . . . “commits a tortious act without the state causing injury to person or property within the state, . . . if he . . . expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.” N. Y. Civ. Prac. Law Ann. §302(a)(3)(ii) (West 2008).7 Or, the State might simply provide, as New Jersey does, for the exercise of jurisdiction “consistent with due process of law.” N. J. Ct. Rule 4:4–4(b)(1) (2011).8

The modern approach to jurisdiction over corporations and other legal entities, ushered in by International Shoe, gave prime place to reason and fairness. Is it not fair and reasonable, given the mode of trading of which this case is an example, to require the international seller to defend at the place its products cause injury?9 Do not litigational convenience10 and choice-of-law considerations 11 point in that direction? On what measure of reason and fairness can it be considered undue to require McIntyre UK to defend in New Jersey as an incident of its efforts to develop a market for its industrial machines anywhere and everywhere in the United States? 12 Is not the burden on McIntyre UK to defend in New Jersey fair, i.e., a reasonable cost of transacting business internationally, in comparison to the burden on Nicastro to go to Nottingham, England to gain recompense for an injury he sustained using McIntyre’s product at his workplace in Saddle Brook, New Jersey? McIntyre UK dealt with the United States as a single market. Like most foreign manufacturers, it was concerned not with the prospect of suit in State X as opposed to State Y, but rather with its subjection to suit anywhere in the United States. See Hay, Judicial Jurisdiction Over Foreign-Country Corporate Defendants—Comments on Recent Case Law, 63 Ore. L. Rev. 431, 433 (1984) (hereinafter Hay). As a McIntyre UK officer wrote in an e-mail to McIntyre America: “American law—who needs it?!” App. 129a–130a (e-mail dated April 26, 1999 from Sally Johnson to Mary Gaither). If McIntyre UK is answerable in the United States at all, is it not “perfectly appropriate to permit the exercise of that jurisdiction . . . at the place of injury”? See Hay 435; Degnan & Kane, The Exercise of Jurisdiction Over and Enforcement of Judgments Against Alien Defendants, 39 Hastings L. J. 799, 813–815 (1988) (noting that “[i]n the international order,” the State that counts is the United States, not its component States,13 and that the fair place of suit within the United States is essentially a question of venue).

In sum, McIntyre UK, by engaging McIntyre America to promote and sell its machines in the United States, “purposefully availed itself ” of the United States market nationwide, not a market in a single State or a discrete collection of States. McIntyre UK thereby availed itself of the market of all States in which its products were sold by its exclusive distributor. “Th[e] ‘purposeful availment’ requirement,” this Court has explained, simply “ensures that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.” Burger King, 471 U. S., at 475. Adjudicatory authority is appropriately exercised where “actions by the defendant himself” give rise to the affiliation with the forum. Ibid. How could McIntyre UK not have intended, by its actions targeting a national market, to sell products in the fourth largest destination for imports among all States of the United States and the largest scrap metal market? See supra, at 3, 10, n. 6. But see ante, at 11 (plurality opinion) (manufacturer’s purposeful efforts to sell its products nationwide are “not . . . relevant” to the personal jurisdiction inquiry).

Courts, both state and federal, confronting facts similar to those here, have rightly rejected the conclusion that a manufacturer selling its products across the USA may evade jurisdiction in any and all States, including the State where its defective product is distributed and causes injury. They have held, instead, that it would undermine principles of fundamental fairness to insulate the foreign manufacturer from accountability in court at the place within the United States where the manufacturer’s products caused injury. See, e.g., Tobin v. Astra Pharmaceutical Prods., Inc., 993 F. 2d 528, 544 (CA6 1993); A. Uberti & C. v. Leonardo, 181 Ariz. 565, 573, 892 P. 2d 1354, 1362 (1995).14

IV

A

While this Court has not considered in any prior case the now-prevalent pattern presented here—a foreigncountry manufacturer enlisting a U. S. distributor to develop a market in the United States for the manufacturer’s products—none of the Court’s decisions tug against the judgment made by the New Jersey Supreme Court. McIntyre contends otherwise, citing World-Wide Volkswagen, and Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U. S. 102 (1987).

World-Wide Volkswagen concerned a New York car dealership that sold solely in the New York market, and a New York distributor who supplied retailers in three States only: New York, Connecticut, and New Jersey. 444 U. S., at 289. New York residents had purchased an Audi from the New York dealer and were driving the new vehicle through Oklahoma en route to Arizona. On the road in Oklahoma, another car struck the Audi in the rear, causing a fire which severely burned the Audi’s occupants. Id., at 288. Rejecting the Oklahoma courts’ assertion of jurisdiction over the New York dealer and distributor, this Court observed that the defendants had done nothing to serve the market for cars in Oklahoma. Id., at 295–298. Jurisdiction, the Court held, could not be based on the customer’s unilateral act of driving the vehicle to Oklahoma. Id., at 298; see Asahi, 480 U. S., at 109 (opinion of O’Connor, J.) (World-Wide Volkswagen “rejected the assertion that a consumer’s unilateral act of bringing the defendant’s product into the forum State was a sufficient constitutional basis for personal jurisdiction over the defendant”).

Notably, the foreign manufacturer of the Audi in WorldWide Volkswagen did not object to the jurisdiction of the Oklahoma courts and the U. S. importer abandoned its initially stated objection. 444 U. S., at 288, and n. 3. And most relevant here, the Court’s opinion indicates that an objection to jurisdiction by the manufacturer or national distributor would have been unavailing. To reiterate, the Court said in World-Wide Volkswagen that, when a manufacturer or distributor aims to sell its product to customers in several States, it is reasonable “to subject it to suit in [any] one of those States if its allegedly defective [product] has there been the source of injury.” Id., at 297.

Asahi arose out of a motorcycle accident in California. Plaintiff, a California resident injured in the accident, sued the Taiwanese manufacturer of the motorcycle’s tire tubes, claiming that defects in its product caused the accident. The tube manufacturer cross-claimed against Asahi, the Japanese maker of the valve assembly, and Asahi contested the California courts’ jurisdiction. By the time the case reached this Court, the injured plaintiff had settled his case and only the indemnity claim by the Taiwanese company against the Japanese valve-assembly manufacturer remained.

The decision was not a close call. The Court had before it a foreign plaintiff, the Taiwanese manufacturer, and a foreign defendant, the Japanese valve-assembly maker, and the indemnification dispute concerned a transaction between those parties that occurred abroad. All agreed on the bottom line: The Japanese valve-assembly manufacturer was not reasonably brought into the California courts to litigate a dispute with another foreign party over a transaction that took place outside the United States.

Given the confines of the controversy, the dueling opinions of Justice Brennan and Justice O’Connor were hardly necessary. How the Court would have “estimate[d] . . . the inconveniences,” see International Shoe, 326 U. S., at 317 (internal quotation marks omitted), had the injured Californian originally sued Asahi is a debatable question. Would this Court have given the same weight to the burdens on the foreign defendant had those been counterbalanced by the burdens litigating in Japan imposed on the local California plaintiff? Cf. Calder v. Jones, 465 U. S. 783, 788 (1984) (a plaintiff’s contacts with the forum “may be so manifold as to permit jurisdiction when it would not exist in their absence”).

In any event, Asahi, unlike McIntyre UK, did not itself seek out customers in the United States, it engaged no distributor to promote its wares here, it appeared at no tradeshows in the United States, and, of course, it had no Web site advertising its products to the world. Moreover, Asahi was a component-part manufacturer with “little control over the final destination of its products once they were delivered into the stream of commerce.” A. Uberti, 181 Ariz., at 572, 892 P. 2d, at 1361. It was important to the Court in Asahi that “those who use Asahi components in their final products, and sell those products in California, [would be] subject to the application of California tort law.” 480 U. S., at 115 (majority opinion). To hold that Asahi controls this case would, to put it bluntly, be dead wrong.15

B

The Court’s judgment also puts United States plaintiffs at a disadvantage in comparison to similarly situated complainants elsewhere in the world. Of particular note, within the European Union, in which the United Kingdom is a participant, the jurisdiction New Jersey would have exercised is not at all exceptional. The European Regulation on Jurisdiction and the Recognition and Enforcement of Judgments provides for the exercise of specific jurisdiction “in matters relating to tort . . . in the courts for the place where the harmful event occurred.” Council Reg. 44/2001, Art. 5, 2001 O. J. (L. 12) 4.16 The European Court of Justice has interpreted this prescription to authorize jurisdiction either where the harmful act occurred or at the place of injury. See Handelskwekerij G. J. Bier B. V. v. Mines de Potasse d’Alsace S. A., 1976 E. C. R. 1735, 1748–1749.17

V

The commentators who gave names to what we now call “general jurisdiction” and “specific jurisdiction” anticipated that when the latter achieves its full growth, considerations of litigational convenience and the respective situations of the parties would determine when it is appropriate to subject a defendant to trial in the plaintiff’s community. See von Mehren & Trautman 1166–1179. Litigational considerations include “the convenience of witnesses and the ease of ascertaining the governing law.” Id., at 1168–1169. As to the parties, courts would differently appraise two situations: (1) cases involving a substantially local plaintiff, like Nicastro, injured by the activity of a defendant engaged in interstate or international trade; and (2) cases in which the defendant is a natural or legal person whose economic activities and legal involvements are largely home-based, i.e., entities without designs to gain substantial revenue from sales in distant markets. See id., at 1167–1169.18 As the attached appendix of illustrative cases indicates, courts presented with von Mehren and Trautman’s first scenario—a local plaintiff injured by the activity of a manufacturer seeking to exploit a multistate or global market—have repeatedly confirmed that jurisdiction is appropriately exercised by courts of the place where the product was sold and caused injury.

* * *

For the reasons stated, I would hold McIntyre UK answerable in New Jersey for the harm Nicastro suffered at his workplace in that State using McIntyre UK’s shearing machine. While I dissent from the Court’s judgment, I take heart that the plurality opinion does not speak for the Court, for that opinion would take a giant step away from the “notions of fair play and substantial justice” underlying International Shoe. 326 U. S., at 316 (internal quotation marks omitted). APPENDIX

Illustrative cases upholding exercise of personal jurisdiction over an alien or out-of-state corporation that, through a distributor, targeted a national market, including any and all States:19

Clune v. Alimak AB, 233 F. 3d 538, 544 (CA8 2000) (wrongful-death action against the Swedish manufacturer of a construction hoist that allegedly caused a workplace death in Missouri; holding the manufacturer amenable to suit in Missouri, the Eighth Circuit stated: “Although we can imagine a case where a foreign manufacturer selects discrete regional distributors for the purpose of penetrating the markets in some states to the exclusion of others, that situation is not before us.” In this case, the foreign manufacturer had “successfully employ[ed] one or two distributors to cover the [entire] United States[,] intend[ing] to reap the benefit of sales in every state where those distributors market.” Were the court to conclude that the manufacturer “did not intend its products to flow into Missouri,” the court “would be bound to the conclusion that the [manufacturer] did not intend its products to flow into any of the United States.”).

Kernan v. Kurz-Hastings, Inc., 175 F. 3d 236, 242–244 (CA2 1999) (products liability action against the Japanese manufacturer of an allegedly defective stamping press that caused a workplace injury in New York; holding the manufacturer amenable to suit in New York, the Second Circuit stated that an “exclusive sales rights agreement” between the Japanese manufacturer and a Pennsylvania distributor “contemplates that [the distributor] will sell [the manufacturer’s] machines in North America and throughout the world, serv[ing] as evidence of [the manufacturer’s] attempt to serve the New York market, albeit indirectly”).

Barone v. Rich Bros. Interstate Display Fireworks Co., 25 F. 3d 610, 613–615 (CA8 1994) (products liability suit against a Japanese fireworks manufacturer for injuries sustained in Nebraska; Eighth Circuit held the manufacturer amenable to suit in Nebraska, although the manufacturer had no distributor or sales agents in that State, did not advertise in Nebraska, and claimed it was unaware that its distributors sold products there; Court of Appeals stated: “In this age of NAFTA and GATT, one can expect further globalization of commerce, and it is only reasonable for companies that distribute allegedly defective products through regional distributors in this country to anticipate being haled into court by plaintiffs in their home states.”).

Tobin v. Astra Pharmaceutical Prods., Inc., 993 F. 2d 528, 544 (CA6 1993) (products liability action against the Dutch pharmaceutical manufacturer of a drug alleged to have caused Kentucky resident’s heart disease; holding the manufacturer amenable to suit in Kentucky, the Sixth Circuit reasoned: “[Defendant] argues that it has done nothing in particular to purposefully avail itself of the Kentucky market as distinguished from any other state in the union. If we were to accept defendant’s argument on this point, a foreign manufacturer could insulate itself from liability in each of the fifty states simply by using an independent national distributor to market its products.”).

Hedrick v. Daiko Shoji Co., 715 F. 2d 1355, 1358 (CA9 1983) (products liability suit arising from injuries plaintiff sustained in Oregon caused by an allegedly defective wirerope splice manufactured in Japan; holding the Japanese manufacturer amenable to suit in Oregon, the Ninth Circuit noted that the manufacturer “performed a forumrelated act when it produced a splice that it knew was destined for ocean-going vessels serving United States ports, including those of Oregon”).

Oswalt v. Scripto, Inc., 616 F. 2d 191, 200 (CA5 1980) (products liability action stemming from an injury plaintiff sustained in Texas when using a cigarette lighter made in Japan; holding the manufacturer amenable to suit in Texas, the Fifth Circuit noted that the manufacturer “had every reason to believe its product would be sold to a nation-wide market, that is, in any or all states”).

Stokes v. L. Geismar, S.A., 815 F. Supp. 904, 907 (ED Va. 1993), aff ’d on other grounds, 16 F. 3d 411 (CA4 1994) (action by worker injured in Virginia while using a railcutting saw manufactured by a French corporation; holding the manufacturer amenable to suit in Virginia, the District Court noted that there was “no evidence of any attempt . . . to limit th[e] U. S. marketing strategy to avoid Virginia or any other particular state”).

Felty v. Conaway Processing Equipment Co., 738 F. Supp. 917, 919–920 (ED Pa. 1990) (personal injury suit against the Dutch manufacturer of a poultry processing machine that allegedly caused injury in Pennsylvania; holding the manufacturer amenable to suit in Pennsylvania, the District Court observed that the manufacturer “clearly and purposefully used [distributors] to deal in the international market for poultry processing equipment” and was “well aware that its equipment was being sold for use in the United States, including Pennsylvania”). Scanlan v. Norma Projektil Fabrik, 345 F. Supp. 292, 293 (Mont. 1972) (products liability action occasioned by defect in ammunition used while hunting in Montana; plaintiff sued the Swedish ammunition manufacturer; holding the manufacturer amenable to suit in Montana, the District Court noted that the distributor intended “a nationwide product distribution”).

Ex parte DBI, Inc., 23 So. 3d 635, 654–655 (Ala. 2009) (wrongful-death action arising out of an automobile accident in Alabama; plaintiff sued the Korean manufacturer of an allegedly defective seatbelt; Supreme Court of Alabama held the manufacturer amenable to suit in Alabama, although the manufacturer had supplied its seatbelts to the car maker in Korea and “maintain[ed] there [was] no evidence . . . showing that it knew its products were being marketed in Alabama”).

A. Uberti & C. v. Leonardo, 181 Ariz. 565, 573, 892 P. 2d 1354, 1362 (1995) (wrongful-death action against the Italian manufacturer of an allegedly defective handgun that caused child’s death in Arizona; Arizona Supreme Court stated: “[F]or all this record shows, Defendant never heard of Arizona. This raises the following question: Having shown that the gun was knowingly designed for and exported to exploit the market of the United States or western United States, must Plaintiffs additionally show that Defendant had the specific intent to market the gun in Arizona, or is it enough to show that Defendant intended to market it in any state, group of states, or all states? We conclude that only the latter is necessary.”).

Hill by Hill v. Showa Denko, K. K., 188 W. Va. 654, 661, 425 S. E. 2d 609, 616 (1992) (products liability suit against the Japanese manufacturer of a sleep aid alleged to have caused West Virginia plaintiff’s blood disorder; holding the manufacturer amenable to suit in West Virginia, that State’s Supreme Court noted that the manufacturer had profited from sales in the United States and considered it unfair to “requir[e] the plaintiff to travel to Japan to litigate th[e] case”).

1 New Jersey is home to nearly 100 ISRI members. See Institute of Scrap Recycling Industries, Inc., Member Directory, http://www.isri.org/ imis15_prod/core/directory.aspx (as visited June 24, 2011, and available in Clerk of Court’s case file).

2 McIntyre America filed for bankruptcy in 2001, is no longer operating, and has not participated in this lawsuit. Brief for Petitioner 3. After “the demise of . . . McIntyre America,” McIntyre UK authorized a Texas-based company to serve as exclusive United States distributor of McIntyre UK shears. App. 52a–53a.

3 McIntyre UK resisted Nicastro’s efforts to determine whether other McIntyre machines had been sold to New Jersey customers. See id., at 100a–101a. McIntyre did allow that McIntyre America “may have resold products it purchased from [McIntyre UK] to a buyer in New Jersey,” id., at 117a, but said it kept no record of the ultimate destination of machines it shipped to its distributor, ibid. A private investigator engaged by Nicastro found at least one McIntyre UK machine, of unspecified type, in use in New Jersey. Id., at 140a–144a. But McIntyre UK objected that the investigator’s report was “unsworn and based upon hearsay.” Reply Brief 10. Moreover, McIntyre UK maintained, no evidence showed that the machine the investigator found in New Jersey had been “sold into [that State].” Ibid.

4 Compare Brilmayer, Rights, Fairness, and Choice of Law, 98 Yale L. J. 1277, 1304–1306 (1989) (hereinafter Brilmayer) (criticizing as circular jurisdictional theories founded on “consent” or “[s]ubmission to state authority”), Perdue, Personal Jurisdiction and the Beetle in the Box, 32 Boston College L. Rev. 529, 536–544 (1991) (same), with Trangsrud, The Federal Common Law of Personal Jurisdiction, 57 Geo. Wash. L. Rev. 849, 884–885 (1989) (endorsing a consent-based doctrine of personal jurisdiction), Epstein, Consent, Not Power, as the Basis of Jurisdiction, 2001 U. Chi. Legal Forum 1, 2, 30–32 (urging that “the consent principle neatly explains the dynamics of many of our jurisdictional doctrines,” but recognizing that in tort cases, the victim ordinarily should be able to sue in the place where the harm occurred).

5 But see ante, at 4–8 (plurality opinion) (maintaining that a forum may be fair and reasonable, based on its links to the episode in suit, yet off limits because the defendant has not submitted to the State’s authority). The plurality’s notion that jurisdiction over foreign corporations depends upon the defendant’s “submission,” ante, at 6, seems scarcely different from the long-discredited fiction of implied consent. It bears emphasis that a majority of this Court’s members do not share the plurality’s view.

6 Last year, the United States imported nearly 2 trillion dollars in foreign goods. Census Bureau, U. S. International Trade in Goods and Services (Apr. 2011), p. 1, http://www.census.gov/foreign-trade/PressRelease/current_press_release/ft900.pdf (as visited June 24, 2011, and in Clerk of Court’s case file). Capital goods, such as the metal shear machine that injured Nicastro, accounted for almost 450 billion dollars in imports for 2010. Id., at 6. New Jersey is the fourth-largest destination for manufactured commodities imported into the United States, after California, Texas, and New York. Id., FT–900 Supplement, p. 3.

7 This provision was modeled in part on the Uniform Interstate and International Procedure Act. See N. Y. Legislative Doc. 90, Judicial Conference of the State of New York, 11th Annual Report 132–147 (1966). Connecticut’s long-arm statute also uses the “derives substantial revenue from interstate or international commerce” formulation. See Conn. Gen. Stat. §52–59b(a) (2011).

8 State long-arm provisions allow the exercise of jurisdiction subject only to a due process limitation in Alabama, Arkansas, California, Colorado, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Missouri, Nevada, North Dakota, Oregon, Pennsylvania, Puerto Rico, South Carolina, South Dakota, Tennessee, Texas, Utah, Washington, and West Virginia. 4 C. Wright & A. Miller, Federal Practice & Procedure §1068, pp. 577–578, n. 12 (3d ed. 2002).

9 The plurality objects to a jurisdictional approach “divorced from traditional practice.” Ante, at 5. But “the fundamental transformation of our national economy,” this Court has recognized, warrants enlargement of “the permissible scope of state jurisdiction over foreign corporations and other nonresidents.” McGee v. International Life Ins. Co., 355 U. S. 220, 222–223 (1957).

10 See von Mehren & Trautman 1167 (“[C]onsiderations of litigational convenience, particularly with respect to the taking of evidence, tend in accident cases to point insistently to the community in which the accident occurred.”).

11 Historically, “tort cases were governed by the place where the last act giving rise to a claim occurred—that is, the place of injury.” Brilmayer 1291–1292. Even as many jurisdictions have modified the traditional rule of lex loci delicti, the location of injury continues to hold sway in choice-of-law analysis in tort cases. See generally Whytock, Myth of Mess? International Choice of Law in Action, 84 N. Y. U. L. Rev. 719 (2009).

12 The plurality suggests that the Due Process Clause might permit a federal district court in New Jersey, sitting in diversity and applying New Jersey law, to adjudicate McIntyre UK’s liability to Nicastro. See ante, at 10–11. In other words, McIntyre UK might be compelled to bear the burden of traveling to New Jersey and defending itself there under New Jersey’s products liability law, but would be entitled to federal adjudication of Nicastro’s state-law claim. I see no basis in the Due Process Clause for such a curious limitation.

13 “For purposes of international law and foreign relations, the separate identities of individual states of the Union are generally irrelevant.” Born, Reflections on Judicial Jurisdiction in International Cases, 17 Ga. J. Int’l & Comp. L. 1, 36 (1987). See also Hines v. Davidowitz, 312 U. S. 52, 63 (1941) (“For local interests the several States of the Union exist, but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power.”) (internal quotation marks omitted); Restatement (Third) of Foreign Relations Law of the United States §421, Comment f, p. 307 (1986) (“International law . . . does not concern itself with the allocation of jurisdiction among domestic courts within a [nation,] for example, between national and local courts in a federal system.”).

14 For a more complete set of examples, see Appendix, infra, at 20–24.

15 The plurality notes the low volume of sales in New Jersey, ante, at 3, 11. A $24,900 shearing machine, however, is unlikely to sell in bulk worldwide, much less in any given State. By dollar value, the price of a single machine represents a significant sale. Had a manufacturer sold in New Jersey $24,900 worth of flannel shirts, see Nelson v. Park Industries, Inc., 717 F. 2d 1120 (CA7 1983), cigarette lighters, see Oswalt v. Scripto, Inc., 616 F. 2d 191 (CA5 1980), or wire-rope splices, see Hedrick v. Daiko Shoji Co., 715 F. 2d 1355 (CA9 1983), the Court would presumably find the defendant amenable to suit in that State.

16 The Regulation replaced the “European” or “Brussels” Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, entered into in 1968 by the original Common Market member states. In the interim, the Lugano Convention “extended the Brussels Convention scheme to [European Free Trade Association] countries.” Clermont & Palmer, Exorbitant Jurisdiction, 58 Me. L. Rev. 474, 491, n. 82 (2006).

17 For a concise comparison of the European regime and this Court’s decisions, see Weintraub, A Map Out of the Personal Jurisdiction Labyrinth, 28 U. C. Davis L. Rev. 531, 550–554 (1995).

18 Assigning weight to the local or international stage on which the parties operate would, to a considerable extent, answer the concerns expressed by JUSTICE BREYER. See ante, at 5–7 (opinion concurring in judgment).

19 The listed cases are by no means exhaustive of decisions fitting this pattern. For additional citations, see Brief for Public Citizen, Inc., as Amicus Curiae 16, n. 5.

Print this transcript Transcript: 

ORAL ARGUMENT OF ARTHUR F. FERGENSON ON BEHALF OF PETITIONER

Chief Justice John G. Roberts: We will hear argument first this morning in Case 09-1343, J. McIntyre Machinery, Ltd. v. Nicastro.

Mr. Fergenson.

Mr. Fergenson: Mr. Chief Justice, and may it please the Court:

Because J. McIntyre did not direct any activity at residents of New Jersey either itself or by directing its distributor MMA to do so and had no awareness or knowledge that the distributor took the action that it did toward New Jersey, New Jersey lacked adjudicative jurisdiction.

Justice Antonin Scalia: When you say "its distributor", was this distributor at all controlled by the defendant?

Mr. Fergenson: No, Your Honor.

It was not.

And both under Ohio law, Wells v. Komatsu America, and under the Restatement -- Second -- Agency, section 1-1, the right to control is essential to ascribe actions to create an agency, and it's on a per-purpose basis.

Justice Antonin Scalia: It might be better to refer to it as the company that distributed its product, rather than calling it "its distributor".

Mr. Fergenson: Very good, Your Honor.

Justice Antonin Scalia: It's loaded, it seems to me.

Mr. Fergenson: Very good, Your Honor.

Justice Elena Kagan: Mr. Fergenson, in your question presented to this Court, you asked whether there's personal jurisdiction -- and I'm quoting here --

"solely because the manufacturer targets the United States market for the sale of its product. "

So I'm taking from that, that you acknowledge that this manufacturer, McIntyre, a British manufacturer, targeted the United States market for the sale of its product.

That's correct, yes?

Mr. Fergenson: Your Honor, that's what the New Jersey Supreme Court held, and that's how we fashioned the--

Justice Elena Kagan: That's your question presented--

Mr. Fergenson: --the test.

Justice Elena Kagan: --Did this -- well, I'll just ask you, then: Did this manufacturer target the United States market?

Did it want to sell its products in the United States?

Mr. Fergenson: Yes, Your Honor.

Justice Elena Kagan: Okay.

So what does that mean, exactly, Mr. Fergenson?

Because the United States is the United States.

It's made up of 50 States.

So I assume that what that means is the manufacturer wanted to sell its products in each of the 50 States.

Is that right?

Mr. Fergenson: No, Your Honor.

Justice Elena Kagan: It only wanted to sell its product in a few States?

Mr. Fergenson: No, Your Honor.

It wanted to sell its product anywhere that the distributor could find.

The distributor was the market manager.

Justice Elena Kagan: Right, anywhere.

So if the distributor came up with California, that was great.

If the distributor came up with a customer in New Jersey, that was great.

As many as possible, more the better, all over the United States.

Is that right?

Mr. Fergenson: As many as possible, wherever the distributor could find a customer, yes, Your Honor.

Justice Elena Kagan: Exactly.

So you targeted New Jersey no less than you targeted California or New York or Illinois or Massachusetts or anything else.

Mr. Fergenson: Well--

Justice Elena Kagan: You targeted the entire United States?

Why shouldn't there be jurisdiction in each of the States you targeted?

Mr. Fergenson: --Well, Your Honor, because, first, this Court's jurisprudence looks to a direct act from World-Wide Volkswagen and even before, as it brought forward Hanson.

As this Court has applied World-Wide Volkswagen, Burger King, and Justice O'Connor's concurrence in Asahi and the other occurrence -- concurrence, Justice Brennan's concurrence in Asahi, look toward a specific State.

Justice Antonin Scalia: Mr. Fergenson, I suppose you could say the same thing about any United States manufacturer--

Mr. Fergenson: Yes.

Justice Antonin Scalia: --who would desire to sell his product in any of the States that would buy it?

Mr. Fergenson: Yes, Your Honor.

Justice Antonin Scalia: And to say that this foreign manufacturer is therefore suable in any State would mean that any American manufacturer is suable in any State?

Mr. Fergenson: Yes, Your Honor.

Justice Antonin Scalia: None of our cases hold--

Justice Elena Kagan: Well, suable in any State where the incident arises.

This is not general jurisdiction.

This is specific jurisdiction.

So the question is, when you target the entire United States and each of the 50 States within that and an accident occurs within one of those States, are you subject to jurisdiction in that State for that accident, for a claim based on that accident?

Not generally, but just for a claim based on that accident.

Didn't even Justice O'Connor -- you referenced the Asahi opinions, but Justice O'Connor said as long as there's purposeful availment, there is specific jurisdiction, and there is purposeful availment when there's an active effort to target a market.

Mr. Fergenson: Well, Your Honor, in Burger King, in Hanson, in World-Wide Volkswagen, the purposeful availment is defined as conducting activities within the forum State.

The -- this Court, through those opinions, foreseeability, clear notice, reasonably anticipate -- all converge.

Justice Ruth Bader Ginsburg: In all of those cases there was a forum in the United States where someone injured in the United States could sue.

Your proposition is that a company can deliberately send its products, wants to explore the U.S. market.

But I take it that there is no place in the United States, because New Jersey is no different than California or any other place -- is it your position that there is no forum in which McIntyre can be sued, even though it set up this distribution arrangement for the very purpose of having its machines in as many locations in the United States as it could?

Is there a forum in the United States where it could be sued?

Mr. Fergenson: Yes, Your Honor.

Justice Ruth Bader Ginsburg: Which one?

Mr. Fergenson: Ohio.

It could have been proceeded against in Ohio.

Justice Ruth Bader Ginsburg: It could be reached in Ohio.

Now, does that make a whole lot of sense?

Is it any more convenient for McIntyre to come to Ohio than New Jersey?

It's a lot less convenient for Mr. Nicastro, who had his fingers removed by this machine.

But you are conceding that there is a forum where this British company can be sued on a tort that occurred in New Jersey.

Explain to me why, since there is a forum in the United States, the logical one isn't New Jersey rather than Ohio.

Mr. Fergenson: Well, Your Honor, first, the issue of convenience, choice of law, conflict of law, as a determinative factor was rejected by this Court.

Justice Ruth Bader Ginsburg: I'm asking you the question: Where can it be sued?

Well, something happened in New Jersey.

The machine, allegedly defective machine, caused a harm there.

What happened in Ohio?

What basis for specific jurisdiction is there in Ohio?

There was no tort in Ohio.

Mr. Fergenson: Well, Your Honor, under Ohio law, the -- there can be an assignment.

There was no written contract between MMA and J. McIntyre.

There can be an assignment in return for a release of a common law indemnification right.

Justice Ruth Bader Ginsburg: I don't understand.

Justice Elena Kagan: Mr. Fergenson, just picking up where Justice Ginsburg left off, Ohio is a perfectly good place for jurisdiction over a claim between the British manufacturer and its distributor in Ohio.

Any kind of contract claim, a claim based on the agreement between the two, Ohio is the appropriate place for jurisdiction.

But Ohio does not seem the appropriate place for jurisdiction -- and again, we're talking about specific jurisdiction, not general -- as to a claim based on an accident that occurred in New Jersey.

The entire idea of specific jurisdiction is that you need a relationship between the defendant and the forum and the claim, and here the claim arose in New Jersey and was in fact not related to Ohio.

Mr. Fergenson: Well, Your Honor, Ohio explicitly provides, and they are -- it's arisen in statute of limitation cases, and it goes back to Travelers Indemnity v. Trowbridge, that an action under both express and common law indemnity arises under contract.

So upon the assignment, and there need not be a judgment under Ohio law -- that's Fort Defiance Construction v. Village of Grover Hill -- there can be an assignment of a common law indemnity under strict product liability.

Justice Ruth Bader Ginsburg: What kind of common law indemnity are we dealing with here?

Where does Mr. Nicastro sue?

He hasn't got any assignment, any indemnity.

Mr. Nicastro is injured in the United States by a machine manufactured in England and he wants to sue, understandably, in the United States.

Why are we talking about assignments, indemnity?

That has nothing to do with Mr. Nicastro.

Mr. Fergenson: Yes, Your Honor, it does.

Mr. Nicastro had an action under strict product liability.

I want to come back to more fully answer the why question that you asked: Why is it just and right that he go to Ohio?

Justice Ruth Bader Ginsburg: No, I would just like to know first -- you said there is jurisdiction in Ohio and not in New Jersey.

In New Jersey, it's the place where the accident occurred, and in Ohio there's nothing but the relationship between the distributor -- there's a contract between the distributor and McIntyre.

So why does Ohio have jurisdiction over this New Jersey tort?

Mr. Fergenson: Ohio has New Jersey -- jurisdiction.

As Your Honor noticed, there are three places that Mr. Nicastro, in looking over this, could have chosen: United Kingdom, which he is now in, in filing a claim in the liquidation proceedings; Ohio; and New Jersey.

The accident occurred in New Jersey.

That's a forum non conveniens issue that's--

Justice Ruth Bader Ginsburg: It's a forum what?

Mr. Fergenson: --That's a convenience issue, a forum non conveniens.

And justice Brennan was clear before Burger King that that's what he wanted to see the law go in the direction of.

He was clear about that.

Ohio, however, in looking at International Shoe, going back to International Shoe, which talks about the relationship between the defendant and the forum State--

Justice Ruth Bader Ginsburg: And the claim in suit.

That's very important.

Mr. Fergenson: --And -- and the cause of action, yes.

There -- the one place where both the distributor, who would upon suit and then a claim over under product, strict product liability would disappear -- that's why you can get an assignment -- the distributor is in Ohio, and so too is the contract relationship.

Justice Ruth Bader Ginsburg: I still don't follow how Mr. Nicastro gets involved with assignment, indemnity.

Mr. Nicastro has a claim against -- well, he sued them both, but the distributor is now bankrupt.

And he says, well, this is specific jurisdiction; specific jurisdiction, as International Shoe teaches, is where the claim arose.

International Shoe, it arose in the State of Washington because that's where the shoe -- the people who were promoting sale of International Shoe's -- International Shoe's shoes worked every day.

So it was a claim relating to a tax owed by International Shoe based on the events that occurred in California.

It was not all-purpose jurisdiction.

And your suggestion that Ohio somehow is a proper forum for Mr. Nicastro's tort claim, I really don't follow that.

Mr. Fergenson: It -- Your Honor, it is.

Mr. Nicastro could have contacted MMA and stated: I have a strict product liability action -- or the trustee in bankruptcy.

The statute of limitations was 2 years in both cases.

Ohio would have applied New Jersey strict liability law.

Justice Anthony Kennedy: Your answer to Justice Ginsburg -- I don't want to make your argument for you, but it seems to me all of a sudden you're talking about how Ohio law will help you out.

I thought the question was, from the standpoint of the defendant at least, whether the defendant purposely availed itself of the forum and you would say the defendant here purposely availed itself of Ohio by choosing an Ohio distributor.

But you don't make that argument.

You're talking about a contract, an indemnity, which seems to me another step.

That's a choice of law and applicable law.

Mr. Fergenson: I agree, Your Honor; it is choice of law.

Justice Antonin Scalia: --Also, I don't think it's worth your time, because frankly it doesn't make a whole lot of difference to me whether they can sue in Ohio or not.

You really think that that's--

Mr. Fergenson: And, Your Honor--

Justice Antonin Scalia: --What about in the United States?

Would the United States have jurisdiction?

Mr. Fergenson: --No, because--

Justice Antonin Scalia: The United States would not?

They surely targeted the United States.

Mr. Fergenson: --Well, Your Honor, in the -- in Justice O'Connor's footnote on national contacts in Asahi, which was not disputed and I think essentially accepted by Justice Brennan, in that footnote it states that national contacts is for the national sovereign to decide.

Justice Antonin Scalia: That's right.

But if the national sovereign, the United States, provided by statute that Federal district courts would have jurisdiction over any, any tort suit by a person injured by a foreign manufacturer that targeted the United States, would that be proper?

Mr. Fergenson: This Court has not evaluated under the Fifth Amendment what circumstances it may be, and this is speculation, how Congress would establish it.

It may be that Congress--

Justice Antonin Scalia: Of course.

It's a hypothetical.

Mr. Fergenson: --Yes, sir.

Yes, sir.

Justice Antonin Scalia: Hypotheticals are always speculation.

Mr. Fergenson: I think that--

Justice Antonin Scalia: How do you speculate about that?

Mr. Fergenson: --Your Honor, I think that, without Klaxon and with a reasonable choice of venue, Congress could establish a uniform system to bring -- to bring foreign defendants into this country.

Justice Anthony Kennedy: Would you say the same thing if, hypothetically, since we're engaging in a hypothetical, the distributor were in France, machine manufactured in England, distributor is in France, and the distributor then selects the United States and then the same facts, New Jersey?

United States would be an appropriate jurisdiction under the Due Process Clause, but not New Jersey?

Mr. Fergenson: I think that, with that one step--

Justice Anthony Kennedy: Assuming the statute that Justice Scalia hypothesizes.

Mr. Fergenson: --Yes, Your Honor.

I think that, with that one step beyond--

Justice Anthony Kennedy: It's a little odd that the States, which have residual sovereignty, which are not limited sovereigns, would not have jurisdiction, but the United States, which is a limited sovereignty other than in the foreign affairs area, which may be relevant here, does have jurisdiction.

That seems backwards.

Mr. Fergenson: --Well, Your Honor, I think that if one looks at this as part of the Congress's power to control, let's say, imports, then as a condition -- and this is what the proposed Foreign Manufacturer's Legal Accountability Act--

Justice Antonin Scalia: Well, Congress has power to control the jurisdiction of Federal courts, and Congress says Federal courts have jurisdiction over this matter.

Mr. Fergenson: --Yes, Your Honor.

Justice Elena Kagan: Mr. Fergenson, could I try another hypothetical?

Justice Anthony Kennedy: But the question is why the State can't make the same choice that the Congress does.

The State lacks foreign affairs power, to be sure.

Is that the only distinction?

That doesn't sound to me like due process.

What we're talking about is a source of authority, not fairness to the defendant.

Mr. Fergenson: Well, Your Honor, I think -- and I go to two words in particular in Burger King, one taken from Hanson, which is essential -- it is essential in each case that there be a purposeful availment of the privilege of conducting activities within the forum; and then the other--

Justice Elena Kagan: But, Mr. Fergenson, the question is whether seeking to serve a market -- and here you're seeking to serve a market in each of the 50 States -- is purposeful availment.

So let me just try a different hypothetical.

Suppose you had the same arrangement with your distributor in Ohio, but the arrangement was not to serve the entire United States market.

Instead, the arrangement was to serve only five States in the Midwest.

That's what you wanted, your client wanted, the market to be.

So it was going to be Ohio and Indiana and Illinois and Michigan and Iowa, all right?

So now a machine blows up in Illinois.

Is there jurisdiction in Illinois?

Mr. Fergenson: --Yes, Your Honor.

Justice Elena Kagan: There is jurisdiction in Illinois, even though your relationship with your distributor was in Ohio.

But there's jurisdiction in Illinois because the machine blew up there and you were seeking to serve the market; that's right?

Mr. Fergenson: Because there was a direction of the distributor to go into the State where the accident occurred.

Justice Elena Kagan: Okay.

Now we have -- now we say this is working very well.

Let's get another nine distributors on board.

We'll give each of them five states, all right?

Now, if I understand you correctly, now you're liable all over the United States because you've had this relationship with ten different distributors, each of whom are going to serve five states.

So there's personal jurisdiction in any state where a machine blows up.

Mr. Fergenson: If the -- yes, Your Honor, if the states are assigned by name.

Justice Elena Kagan: And now I say: Let's forget these ten distributors.

Who needs ten distributors?

I'll just have one distributor.

Why is there any difference?

Mr. Fergenson: Because that distributor -- unless that distributor is told, you must go, like a traveling salesperson, you must go into each State, you must personally go into each State -- that's purposeful availment.

Justice Elena Kagan: Mr. Fergenson, with respect, this distributor was told to sell as many products as it could in as many States as it could.

Mr. Fergenson: No, it was not, Your Honor.

It was not told to do anything more than to sell products, not in as many--

Justice Sonia Sotomayor: Excuse me, counselor.

Going back to the relationship, Justice Scalia asked you whether there was legal control, and you said no.

But there was coordination, wasn't there?

Isn't -- doesn't the record show that the English company traveled to the trade shows with the American company?

Wasn't your president, your English president, present at the Las Vegas show in which this New Jersey company first saw the machine?

Is that correct?

Mr. Fergenson: --Yes.

Justice Sonia Sotomayor: I know there's a--

Mr. Fergenson: Yes, Your Honor.

Justice Sonia Sotomayor: --And you approved all marketing efforts.

You had to approve -- according to the findings of the court below, you approved all the marketing materials that the American company--

Mr. Fergenson: No, Your Honor.

There is a letter that's undated that speaks about we have advertised under your direction and per your suggestions.

That letter also states that: We've spent $350,000 and we performed the -- we performed repairs and warranty service without seeking reimbursement from you, and that's consistent with the distant relationship here.

Your Honor, we asked for the names of the customers.

We didn't get it.

We didn't get -- we didn't drop-ship.

And that would obviously have been a lot less expensive in cost rather than shipping it to Ohio.

They were the market maker.

They controlled the relationships with the individual customers.

Justice Sonia Sotomayor: --Then why was your number and name both printed on the machine and in the warranty book?

The American -- obviously, some customers had to be reaching out you to because all the materials they received directed them to the English company, not to the American company.

Mr. Fergenson: And, Your Honor, the record shows that we were sued in Kentucky, we were sued in Massachusetts.

The Kentucky dispute was settled, was resolved by dismissal under the statute of limitations, but--

Justice Sonia Sotomayor: I think you've begged my question.

Mr. Fergenson: --I'm sorry, Your Honor.

Justice Sonia Sotomayor: You did travel to certain of the trade shows--

Mr. Fergenson: Yes, Your Honor.

Justice Sonia Sotomayor: --with the America company?

Mr. Fergenson: Yes, Your Honor.

Justice Sonia Sotomayor: You did make suggestions with respect to advertising?

At least with -- at least once, but you did?

Mr. Fergenson: The -- the company that distributed the products stated in a letter that we conformed our advertising to what you suggested.

Justice Sonia Sotomayor: Okay.

And you don't believe that coordinating your actions with the distributor and appointing that distributor to distribute products wherever it can is not enough for you to reasonably believe -- know that you're going to be dragged into a State where that product has been sold--

Mr. Fergenson: That's correct, Your Honor.

Justice Sonia Sotomayor: --and has caused injury?

Mr. Fergenson: That's correct, Your Honor.

And I would ask Your Honor to look at Professor Kurland's University of Chicago Law Review article in 1958, very influential, and to look at footnote 99, in which Professor Kurland quotes, all quotes, from this Court's transcript of record in International Shoe.

And in the International Shoe the salespeople were controlled by International Shoe.

Justice Stephen G. Breyer: Right.

Can I ask you--

Mr. Fergenson: Yes, Your Honor.

Justice Stephen G. Breyer: --Now, first, the word "distributor" hurts, so I'm going to take that out, and I imagine a hypothetical -- I know your case differs from that, but I'm going to ask them how it differs, not you, okay?

Now, a person walks into a shop in either West Virginia or the country of India where they make pots.

They're very nice pots made actually in West Virginia.

And the potter makes several thousand a year, and this individual says: Mr. Potter, I want to sell your pots; send me a thousand each year.

Where are you going to sell them?

Everywhere.

Great.

Okay?

That's it.

Now, suppose that the law were, as it could be perhaps, that it is sufficient for jurisdiction throughout the United States that the distributor or independent buyer said: Good, I'm selling them everywhere I can and two or three end up in New Mexico, but it doesn't matter where they end up.

Suppose that was sufficient to find jurisdiction.

You've prepared for this case.

I want to know in your opinion, if that were the rule, that's all that's necessary, what cases in this Court in your opinion would that conflict with?

I mean, I'm thinking of the facts.

I'm not thinking of statements of law or whatever, but you can bring those in, too.

I want to write those down because I want to read those cases and you know them better than me.

Mr. Fergenson: Your Honor, I believe that the -- that the principles of law as stated, because they're law and they're applied in each case, it could -- which you apply to the facts, I believe that the rejection of the convenience test by this Court in World-Wide Volkswagen, Savchuk, and in Shaffer, where Justice Brennan posited that there be a convenience test, that those--

Justice Stephen G. Breyer: I don't know what a convenience test is.

Assume I'm very ignorant, which isn't too far from the truth.

I would like you to tell me, are there any cases which we would actually be conflicting with were we to say all that's necessary to assert jurisdiction in every State is that a buyer walks into a shop where the manufacturer of pots makes pots and tells the potter, I'm going to sell everywhere I can, and the potter says good, okay.

Now -- and he buys the pots.

Now, if that were the rule, can you find a case that that actually conflicts with?

Mr. Fergenson: --I believe that that conflicts, Your Honor, with Asahi.

Justice Stephen G. Breyer: Asahi, okay.

Justice Ruth Bader Ginsburg: Asahi -- Asahi, Mr. Fergenson, was a litigation between a Japanese component part manufacturer and a Taiwanese finished product manufacturer.

What -- how in the world could you compare that case, which really has nothing at all to do with the United States?

It's -- it's a Japanese valve manufacturer sells the valve to a tire maker in Taiwan, and there should be -- that suit should go forward in the United States?

I can see it going forward in -- in Japan, but it has no connection with the United States.

And how can you possibly compare that with this case where somebody was injured by a machine that malfunctions, allegedly?

There was something very interesting you said in your brief.

And you said the U.K., which you -- you say -- now you added Ohio, but you said U.K. would be the place for Mr. Nicastro to go.

It provides a trusted legal system.

What would be your answer if the manufacturer, same arrangement with a distributor, sell anyplace in the United States you can, is from China?

Would you give the same answer?

Mr. Fergenson: Your Honor, I would have to look at -- and -- and the answer would not be, off the cuff, the same.

It would not be flatly the same.

There's been a recent decision by Judge Chasanow on melamine in which Chasanow applied the availability law that this Court has set forth in Piper and Gulf Oil and -- and the other cases that follow, and determined that China was an available forum for the plaintiffs suing for the harm to their children from tainted milk.

Justice Ruth Bader Ginsburg: You -- you made a point about the trusted legal system.

Well, let's say it was Russia, Mexico.

You make -- pick any one.

The machine is manufactured in one of those countries where it's not so certain that there's a trusted legal system.

Mr. Fergenson: That's correct, Your Honor.

And so under Piper, Gulf Oil, and I can't remember the name of the other case that Judge Chasanow relied upon, they are difficult cases, and the ability of the Court to determine whether the other forum is available is quite cabined.

And they are difficult, Your Honor.

Justice Ruth Bader Ginsburg: Those that--

Chief Justice John G. Roberts: Perhaps you would like to reserve some of your time for rebuttal, counsel?

Mr. Fergenson: Yes, Your Honor.

Thank you.

Chief Justice John G. Roberts: Thank you.

Mr. Ross?

ORAL ARGUMENT OF ALEXANDER W. ROSS, JR., ON BEHALF OF RESPONDENTS

Mr. Ross Jr.: Mr. Chief Justice, and may it please the Court:

"All we wish to do is sell our products in the States and get paid. "

That's what the British manufacturer said.

Chief Justice John G. Roberts: What if he said: We want to do that, but we don't like New Jersey, so don't sell our products in New Jersey, and the Ohio company nonetheless does so?

Could you get them -- can you hail them into court in New Jersey?

Mr. Ross Jr.: I would say under those circumstances, yes, because the purpose that -- this particular manufacturer purposefully availed themselves of the entire U.S. market.

Chief Justice John G. Roberts: But he said: But I have no intention of selling in New Jersey, I'm afraid I might get sued there and I don't want to get sued there.

He is not entering the stream of commerce in the United States.

He's entering a stream of commerce that detours around New Jersey.

Mr. Ross Jr.: So every State with the exception of New Jersey, is that the hypothetical, Your Honor?

Chief Justice John G. Roberts: Yes.

Mr. Ross Jr.: Then I would say under those circumstances, yes, New Jersey would be excluded.

Chief Justice John G. Roberts: Oh, it would be excluded?

Mr. Ross Jr.: Yes.

If the manufacturer--

Chief Justice John G. Roberts: So it depends on the intent of the manufacturer?

Mr. Ross Jr.: --I think it's the intent and the additional conduct of the manufacturer, Your Honor.

I think, as Justice O'Connor said in the Asahi case, she gave several examples.

I think we'd meet all the examples under the circumstances of this case.

Justice Antonin Scalia: What if a manufacturer tells a distributor, you have international distribution authority, you can sell my machine anywhere in the world, sell as many as you can anywhere in the world; that would include the United States, right?

Mr. Ross Jr.: That is correct, Your Honor.

Justice Antonin Scalia: And therefore it would include New Jersey?

Mr. Ross Jr.: Under those circumstances, of course, which are different from our case, it would seem to me--

Justice Antonin Scalia: I know; it's a hypothetical.

Mr. Ross Jr.: --Of course, of course.

But the fact of the matter is if the manufacturer purposefully availed itself of -- of the market which would include the world and had a distributor for the entire world and did--

Justice Antonin Scalia: It would include New Jersey.

Mr. Ross Jr.: --Yes, it would.

Justice Antonin Scalia: Purposeful availment of the government of New Jersey?

Mr. Ross Jr.: I would say the manufacturer has to take some additional conduct.

Justice Antonin Scalia: I mean, availment doesn't mean much if that's all it means.

Mr. Ross Jr.: Well, if--

Justice Antonin Scalia: You tell somebody distribute in the world and you are availing yourself of the government of New Jersey?

Mr. Ross Jr.: --If there is purposeful availment and additional conduct, Your Honor.

In this case that's what we have here.

Justice Stephen G. Breyer: Additional conduct?

Mr. Ross Jr.: Correct.

Justice Stephen G. Breyer: What I have written down in my notes, which you can add to--

Mr. Ross Jr.: Sure.

Justice Stephen G. Breyer: --is that there are three things that happened.

One -- it's the equivalent of the potter.

One thing that happened, we have to take it as, I think, an independent company, whether you want to call them a distributor or not.

I didn't see a difference there.

An independent company goes to a firm somewhere in the world and says: I will buy your product and sell it in the United States.

And the guy says good.

And that's true whether it's a woman's cooperative in southern India or whether it's the biggest company in the world, okay?

That's the first thing.

The second thing is that an executive of that company went to seven trade shows in the United States.

And the third thing is that two, three, or four machines ended up in New Jersey.

Now, is there anything other than that?

And there's a lot of rhetoric, and there are all kinds of characterizations, but when I look for facts, I found those three, and I want to be sure I have them all.

Mr. Ross Jr.: You do, Your Honor.

Justice Stephen G. Breyer: I do.

Now, then my question following from that, if I have those are the three facts, what worries me is the exact opposite of what the New -- the New Jersey Supreme Court said.

It said in worldwide markets this is a good thing.

I think I worry about it, because I'm worried about the woman's cooperative in India, I'm worried about the Chinese development, I'm worried about development everywhere.

We have a lot of small businesses.

And I would worry -- now, maybe the worry is legally irrelevant -- but I'd worry about a rule of law that subjects every small business in every developing company -- in every developing country to have to be aware of the law in 50 States simply because they agreed to sell to an independent company who is going to sell to America, plus your two factors.

And really the third is none, because if it hadn't ended up somewhere, there would have been no accident.

Mr. Ross Jr.: I would say--

Justice Stephen G. Breyer: Now, that's my basic concern here.

Mr. Ross Jr.: --I would say in -- in response to your hypothetical question, that because there was purposeful availment where they came to the United States, attended trade shows in an effort to sell their product to anyone who would come to that trade show throughout the United States, and those sales were in fact consummated, then in that case I think that the manufacturer has done more than just intend to sell.

They have taken certain positive steps.

Justice Stephen G. Breyer: Yes.

Okay, but you see what my -- my problem is a sort of policy problem that may be irrelevant; but I -- I don't see how the world's going to work or develop if in fact every small business everywhere in the world has to know, you know, the law of every 50 States and hire lawyers and come here, rather than making the accident victim go there.

Now, it's tough on the accident victim, but the other is also tough.

So -- so -- so that's -- that's sort of the -- I'm sketching out my concerns here.

Mr. Ross Jr.: I understand.

Justice Stephen G. Breyer: All right.

Justice Sonia Sotomayor: What is--

Chief Justice John G. Roberts: Maybe you could respond to Justice Breyer's--

Justice Stephen G. Breyer: Yes.

Mr. Ross Jr.: In -- in my judgment, it's not enough to just have intent, it's not enough just to send the product out on, adrift on the stream of commerce.

There have to be some additional conduct, some concrete steps taken.

And I believe--

Justice Stephen G. Breyer: Trade shows.

Mr. Ross Jr.: --in your hypothetical, attending the trade shows, perhaps hiring a distributor, selling the products--

Justice Stephen G. Breyer: Well, that's the same as the first; that's the sale.

Mr. Ross Jr.: --That's right.

So I think those are the additional concrete steps that were taken in your hypothetical.

Justice Elena Kagan: Mr. Ross, do you think if there's a small business in the United States that sells a product and that actively seeks to serve a foreign market, maybe it's Great Britain, maybe it's China, and that product blows up in that foreign country -- Great Britain, China -- do you think that the manufacturer, the American manufacturer is subject to jurisdiction there?

Mr. Ross Jr.: Yes.

If they actively seek the market there, they have purposely availed themselves, they have taken--

Justice Elena Kagan: All -- all over the world this is true; is that right?

Mr. Ross Jr.: --Yes.

Yes, Your Honor.

Justice Ruth Bader Ginsburg: And it is the jurisdictional rule that civil law systems have always had?

Mr. Ross Jr.: That's correct, Your Honor.

I believe--

Justice Antonin Scalia: But -- and I assume that if we do this to a company in England, any country in the world, and we say that this satisfies due process, we would have to honor a judgment from Bangladesh based upon -- against an American company, based upon a similarly modest degree of -- of availment, right?

Mr. Ross Jr.: --Well, Your Honor, it depends on the extent of the availment, I would say, under those circumstances.

Justice Antonin Scalia: Just as -- just as modest as what you propose here, or as extensive.

I don't mean to demean the degree of it here.

Mr. Ross Jr.: It seems to me -- if there's--

Justice Antonin Scalia: But the same kind of contact in India, which has different -- different states in India.

And -- strike Bangladesh.

Make it Madras, okay?

Mr. Ross Jr.: --All right.

Justice Antonin Scalia: And we would have to honor a judgment by a court of Madras against an American manufacturer who had as little contact with Madras as exists here.

Mr. Ross Jr.: I would say under -- yes.

Justice Antonin Scalia: We would have to?

Mr. Ross Jr.: Yes, I would say.

Justice Elena Kagan: Mr. Ross, we do that now; isn't that right?

Mr. Ross Jr.: That's correct, Your Honor.

Justice Stephen G. Breyer: We do?

We do?

So if someone goes into a shop in West Virginia and buys 1,000 pots and says I'm going to sell them in Madras, or I might sell them anywhere in the world--

Mr. Ross Jr.: That's a slightly--

Justice Stephen G. Breyer: --and then that manufacturer, that potter in West Virginia, now has to go to wherever he ends up -- wherever that pot ends up?

Mr. Ross Jr.: --That's a slightly different scenario in my judgment, Your Honor.

Justice Stephen G. Breyer: Ah.

Ah.

Mr. Ross Jr.: --because the distributor came to the manufacturer.

In this case, the manufacturer from Britain hired--

Justice Stephen G. Breyer: We turn it on that?

We turn it on whether the independent buyer -- the independent buyer walked into the shop or whether the seller found that there was an independent buyer, is that what this case should turn on?

I mean, I'm nervous.

I see a lot of rather deep issues here, and I -- that's what are making me nervous.

Mr. Ross Jr.: --I understand that.

Justice Stephen G. Breyer: I want to -- you've thought about it more than I.

So--

Mr. Ross Jr.: I understand that.

Justice Ruth Bader Ginsburg: Can we go back to Justice Scalia's question?

I mean, the United States has been telling the rest of the world: We do recognize and enforce your judgments--

Mr. Ross Jr.: I think--

Justice Ruth Bader Ginsburg: --if there is a -- a proper jurisdictional basis.

Mr. Ross Jr.: --That's correct, Your Honor.

Justice Ruth Bader Ginsburg: We do, and we would like you to recognize ours, and we don't get that reciprocity, but we are still trying to get it.

But the United States has taken a very neighborly view about recognizing and enforcing foreign judgments.

Mr. Ross Jr.: Yes, Your Honor.

Justice Antonin Scalia: That's true when there is a proper jurisdictional basis, which is what we're talking about here: What does the United States mean when it says there is a proper jurisdictional basis?

Is all that the court in Madras needs what existed here in order to hold an -- an American manufacturer liable?

That's -- that's a little scary.

Mr. Ross Jr.: Well, Your Honor, if the corporation, the manufacturer is purposely availing itself of the Madras market and hires a distributor to go to Madras and to sell its products, then indeed I don't see why a court in Madras would not have -- and the product explodes or causes some horrific--

Justice Sonia Sotomayor: --To it really, to you -- are you saying that Justice Breyer's hypothetical creates jurisdiction, that the mere sale to a distributor anywhere creates jurisdiction, wherever that distributor is marketing the manufacturer's product?

I thought because in the hypothetical he created it was they were availing themselves of the U.S. market, that they were marketing, they went to seven trade shows.

They did merely -- they did something more than the sale.

So where's your -- what's your position?

Mr. Ross Jr.: --My position is exactly what Your Honor has just stated.

They have to do something more than just sell.

There has to be purposeful availment.

There has to be some concrete action, attending trade shows, designing the product for the market.

Justice Samuel Alito: What -- what difference does attending some trade shows in the United States mean -- make?

Suppose they're -- they didn't attend any trade shows, they just have a web site that provides a description of the product.

Mr. Ross Jr.: I think--

Justice Samuel Alito: Would there be no jurisdiction then?

Mr. Ross Jr.: --Well, it depends on the web site.

But in my judgment, attending trade shows is a large factor that is unique in this case.

As I pointed out in our briefs, they were -- they didn't just attend a trade show.

They attended trade shows throughout the United States to sell this product.

Justice Samuel Alito: But not in New Jersey.

Mr. Ross Jr.: Not in the State of New Jersey, but a lot of other places.

Justice Ruth Bader Ginsburg: Where did the New Jersey company that bought this machine find out about it?

Mr. Ross Jr.: Well, Mr. Curcio, who was Mr. Nicastro's employer, went to one of these convention trade shows in Las Vegas, where he saw the machine.

And at that trade show the British manufacturer shared a booth with the -- its American distributor.

And that's where Mr. Curcio, Mr. Nicastro's employer, saw the machine and that's why he decided to buy it there.

Chief Justice John G. Roberts: --What difference does it make that they go to a trade show somewhere other than New Jersey?

We have the notion that they're availing themselves of the -- the entire United States market.

That's -- I'll accept that.

What does the trade show in Nevada add to the jurisdictional ties to New Jersey?

Mr. Ross Jr.: The difference for this case, precisely this case, is that we feel that under those circumstances there may have been minimum contacts, even under a traditional sense here.

Chief Justice John G. Roberts: With Nevada?

Mr. Ross Jr.: No, with New Jersey, because the British manufacturer was there.

He was in a booth.

A New Jersey person came to the booth and said, That's a great machine.

There was some kind of interaction.

The record is unclear as to what it was, but the result was the British manufacturer wound up selling its product--

Justice Antonin Scalia: If you interact with somebody from New Jersey, you have committed availment of the government of New Jersey?

Mr. Ross Jr.: --It's more than that.

Justice Antonin Scalia: There are a lot of people from New Jersey.

Mr. Ross Jr.: It's more than -- it's more than that, Your Honor.

It's more than that.

It's the distributor acting under the direction, guidance, and control of the British manufacturer, and there are records in the -- in the record there's plenty of reference to that.

Justice Antonin Scalia: He didn't tell them to just seek out a person from New Jersey.

He told them to talk to people.

Mr. Ross Jr.: He was prepared to sell to anyone.

Whether it was from New Jersey or Massachusetts or Connecticut, it didn't matter as long as the sale was into the United States and the manufacturer got the economic benefit of it.

Justice Elena Kagan: And Mr. Ross, isn't the point that he was selling by using large convention sites in the United States, expecting that people from other -- would show up to those large convention sites?

I know that Justice Alito doesn't want to hear this, but New Jersey doesn't have all that many large convention sites like Las Vegas does.

Newark is not such a hot place, but they're expecting people from Newark to go and look at these machines and buy these machines.

That's the marketing system that's used for these massive machines that they're trying to sell nationwide.

Mr. Ross Jr.: That's exactly correct, Your Honor.

The--

Chief Justice John G. Roberts: What if there is no scrap metal plant in Montana?

Can Montana be a jurisdiction in a case like this?

You know, a Montana worker is over in New Jersey and comes back to his home in Montana, and he's been injured.

Do they avail themselves of the market in Montana when there's no market for their products there?

Mr. Ross Jr.: --Well, if someone from Montana attends one of these trade shows and decides to purchase one of these machines--

Chief Justice John G. Roberts: No, no.

He's just injured by one of these machines somewhere else, but he's from Montana.

Can he sue in Montana?

Mr. Ross Jr.: --Under those circumstances I would say not.

Justice Ruth Bader Ginsburg: The basis would only be the plaintiff's residence?

Mr. Ross Jr.: That's correct.

Justice Ruth Bader Ginsburg: And we don't accept that as a sufficient basis.

Mr. Ross Jr.: That's correct.

That would not be enough.

Chief Justice John G. Roberts: Well, I thought -- I thought this was what the case was all about: Whether this is -- the stream of commerce is sufficient to add a basis on top of the plaintiff's residence.

And I would have thought to me, that's a significant limitation on your theory to say that in areas where you don't expect to be hailed into court because your machine is not going to be used, you can't be.

Mr. Ross Jr.: Well, it seems to me that if the, if the manufacturer has purposefully availed itself of the entire United States market, which is inclusive of Montana--

Chief Justice John G. Roberts: Yeah.

Mr. Ross Jr.: --and the machine somehow winds up in Montana.

Chief Justice John G. Roberts: No, no.

Not the machine.

Mr. Ross Jr.: The individual.

Chief Justice John G. Roberts: Yes.

Mr. Ross Jr.: So the individual is in Montana; the accident happened somewhere else?

Chief Justice John G. Roberts: Yes.

Mr. Ross Jr.: Under those circumstances, I would say that wherever that machine was sold into, whether it was in an adjoining State, and the fellow from Montana lived across the border, say--

Chief Justice John G. Roberts: Yes, exactly.

Mr. Ross Jr.: --I would say that the jurisdiction would be better put where the accident occurred.

Chief Justice John G. Roberts: Could it be put elsewhere?

Could it be put in the other State?

Mr. Ross Jr.: I would say that if the -- if the manufacturer has not purposefully availed itself of the State of Montana--

Chief Justice John G. Roberts: Right.

Mr. Ross Jr.: --and has taken no steps--

Chief Justice John G. Roberts: Right.

Mr. Ross Jr.: --to push into Montana, even though it is seeking to sell to the entire United States--

Chief Justice John G. Roberts: Yes.

Mr. Ross Jr.: --I think the better location for that--

Chief Justice John G. Roberts: Well, better -- I know -- I know you think it's better, but can he be sued in Montana?

What I'm trying to get at, obviously, is we're talking about the stream of commerce in the United States, but the stream doesn't wash over the United States evenly.

The manufacturer, as I asked earlier, may decide, I don't want to sell New Jersey.

Mr. Ross Jr.: --Right.

Chief Justice John G. Roberts: The manufacturer may reasonably assume his machines aren't going to be in Montana because there is no scrap metal business in Montana.

So I'm just trying to see if there are limitations to your theory about the stream of commerce covers everything.

Mr. Ross Jr.: Yes, Your Honor.

The answer is yes, there are limitations.

There are those limitations, and I think the best way of -- of stating it would be if there is purposeful availment of entering a market and you sell the product into that market, you take these additional steps plus the intent.

Chief Justice John G. Roberts: Right, but the market cannot be simply the United States, because you carve out New Jersey if the manufacturer does, you carve out Montana.

Mr. Ross Jr.: That is correct.

That is correct.

Chief Justice John G. Roberts: Okay.

Justice Stephen G. Breyer: --But what I'm thinking is this area of law has treated States as if they're foreign countries, in a certain way analogous to.

If that -- I'm trying to -- let me ask: What you said at one point, that if an independent company comes to a business, however small, in the United States and says, give us some of your product, we're going to sell it everywhere in the world we can, fine.

And they do.

A couple get into some very -- Burma or whatever, Myanmar.

And right now, it's the law that consumers in all those countries sue in that country if they're hurt.

Is that really the law?

Is there something you can cite me to on that?

Mr. Ross Jr.: Well, there are conventions.

There's the Brussels convention and the Uganda--

Justice Stephen G. Breyer: What does it say?

Mr. Ross Jr.: --They basically state, according to my understanding, that where the tort occurred to the signatories to that convention, which includes--

Justice Stephen G. Breyer: And we're one?

Mr. Ross Jr.: --The United Kingdom; which Includes the United Kingdom.

Justice Stephen G. Breyer: And are we one?

Mr. Ross Jr.: That -- then in those cases, where the tort occurred there would be jurisdiction over the foreign manufacturer.

For example, if there's an injury in Belgium and the machine is manufactured in Britain and someone is hurt in Belgium, according to those conventions then the person in Belgium could sue the British company in Belgium.

Justice Stephen G. Breyer: Did you refer to that?

Do you have the citation to that?

Mr. Ross Jr.: They're in our brief.

Justice Stephen G. Breyer: They're in your brief?

Mr. Ross Jr.: Yes, Your Honor.

Justice Ruth Bader Ginsburg: Is -- this EEOC Convention on Jurisdiction and Judgments, does that operates only within the Community?

Mr. Ross Jr.: That's correct.

The United States is not a signatory to that convention.

But the hypothetical was -- and I tried to answer the hypothetical.

Justice Anthony Kennedy: Does your argument depend on whether the manufacturer is the manufacturer of the whole machine as opposed to a component part, like Asahi?

Suppose there was a little battery or lever that was manufactured, I don't know, in France, and it was sent over to this English manufacturer, and they were -- this part is incorporated in many different kinds of machines, but the part then -- and then the facts are the same: It goes to the Ohio distributor and New Jersey, but the part is what causes the injury.

What result?

Mr. Ross Jr.: I would say no jurisdiction for a component manufacturer under those circumstances, unless the component manufacturer was deliberately manufacturing a product for sale into a State in the United States.

Justice Anthony Kennedy: Well, it's like Justice Breyer's hypothetical.

He wants to sell to the entire universe if he can.

Mr. Ross Jr.: That's correct, but the manufacturer in your hypothetical did not purposely avail itself of the United States market.

He simply sold a component part.

This is, of course, not a component part case we have here before us.

So he may have known, there might have been foreseeability that it was possible that.

That's not enough.

Chief Justice John G. Roberts: What if -- let's say he does know, it's a component part for something that is sold, widely sold, in the United States.

Or it's a component part of this machine.

Mr. Ross Jr.: Our position is that under those circumstances, if the manufacturer did not purposely avail itself of the United States market by hiring a distributor--

Chief Justice John G. Roberts: Why would it be -- so you have an entirely different test?

Mr. Ross Jr.: --That's the components -- I'm sorry.

Chief Justice John G. Roberts: You have -- you have an entirely different test for a component manufacturer than you do for the finished product manufacturer.

The component manufacturer may well know to a certainty that his component is going to be used in a product that's sold in the United States.

Let's say he makes a component for this machine.

Mr. Ross Jr.: Right.

Chief Justice John G. Roberts: Why is that different?

Shouldn't it be the same test?

Mr. Ross Jr.: I think it's different.

And that's where the limitation of the Due Process Clause, I think, comes into play because that manufacturer, making a small component, a spring, a small part for a large machine like in the Asahi case, he may have known.

It's foreseeable that this product--

Chief Justice John G. Roberts: Let's say he makes the 25-inch blade that only goes into this machine.

That's the only market for it.

Does -- no difference?

Mr. Ross Jr.: --I would say there is a difference, because that component--

Chief Justice John G. Roberts: I'm sorry.

That was poorly phrased.

Is it the same test for the machine or is it a different test?

Is it your component test?

Mr. Ross Jr.: --I think it's -- I think it's the same test, but it would come out differently for the component manufacturer.

That's the way I'd like to--

Justice Elena Kagan: And Mr. Fergenson, isn't that what Justice O'Connor said in Asahi, that the component manufacturer may have all the knowledge in the world -- for Justice Brennan, that was enough; for Justice O'Connor, it was not enough that knowledge was insufficient, that there had to be purposeful availment, that there had to be an active decision, a choice to seek the market.

And -- and I understand that, on your view, McIntyre made that choice.

Mr. Ross Jr.: --Exactly.

Chief Justice John G. Roberts: How can there not -- how can there possibly not be purposeful availment if the manufacturer of the 25-inch blade knows it's only going to be used in McIntyre's machine and it knows that McIntyre is trying to sell its machine in the United States?

Mr. Ross Jr.: Because the manufacturer of that blade did not specifically target the United States market.

Chief Justice John G. Roberts: He put it in a product that is only going to be -- that he knows is going to be sold in the United States.

Mr. Ross Jr.: But it's not specifically designed for them.

That -- that machine is not specifically designed for the U.S. market.

Chief Justice John G. Roberts: You have a partnership.

One of the partners makes the shell of the machine; the other partner makes the insides of the machine.

Are they as individual companies, are they availing themselves in the United States market?

Mr. Ross Jr.: Now, under those circumstances, I would think there would be a difference.

I think there would be a difference because they are combined in joining to market into the United States.

But if this is a -- a manufacturer of blades in Birmingham, England, and the manufacturer of blades in Birmingham, England sends it to Nottingham, England, and then something happens in New Jersey and all the facts are the same, I would say Birmingham is off the hook.

Justice Antonin Scalia: Suppose the company in Nottingham only sells to the United States, that's the only place its machines are -- are marketed?

Mr. Ross Jr.: That would be different then.

Then there -- there is more than that.

There--

Justice Antonin Scalia: Then the component manufacturer would be liable in New Jersey?

Mr. Ross Jr.: --Because he is basically piggybacking on the actions of the manufacturer.

Justice Stephen G. Breyer: What about today, is there any difference between the trade show, and he did show up at seven trade shows, I -- I mean the manufacturer here had a representative at several trade shows, you're right.

Mr. Ross Jr.: Twenty-six.

Justice Stephen G. Breyer: Twenty -- no, well, the record said seven.

Mr. Ross Jr.: There were 26 trade shows.

Justice Stephen G. Breyer: Is that in the record?

Mr. Ross Jr.: Yes, it is.

Joint Appendix 114 to 117.

Justice Stephen G. Breyer: Okay.

All right.

Is there a difference between that you think and -- I just read in the paper I think there are some Ethiopian or some foreign countries, very poor country, and they are selling goats, and they're sending some to the United States for some kind of festival purpose or something.

Now, he said I have a site on the Internet.

All right.

Now, all of these people, however small, I mean, many, many will have Internet sites, and some of them might have an Internet site that's accessed by American buyers, as this man did.

Mr. Ross Jr.: Right.

Justice Stephen G. Breyer: All right.

Is there any difference between that and your trade shows?

Mr. Ross Jr.: And if the goat poisons someone in the United States and the -- and the person who raised the goat--

Justice Stephen G. Breyer: Yes.

Mr. Ross Jr.: --purposely availed itself--

Justice Stephen G. Breyer: No, no, don't use the characterization.

I mean, I'm -- I'm -- I'm trying to figure out does this count as purposely availed?

Mr. Ross Jr.: --If -- if they take steps, concrete steps, additional conduct, then yes.

The answer is yes.

Justice Stephen G. Breyer: Okay.

So the answer is going to be, in this case, if we say you win--

Mr. Ross Jr.: Sadly even if--

Justice Stephen G. Breyer: --then everyone with a -- with a -- everyone with a Internet site who also sells to a buyer who says anywhere in the world, perhaps -- I don't know how far that reaches -- seems pretty filled with implications?

Mr. Ross Jr.: --Yes, it does.

The Internet -- we deliberately did not raise the Internet or any web sites in our briefs.

Justice Stephen G. Breyer: But it's the same you think?

It's the same--

Mr. Ross Jr.: I think if there is purposeful availment and if the Internet is being used to market specifically into the United States and the product causes harm to someone in the United States--

Justice Ruth Bader Ginsburg: There are -- there are -- there are some cases, just beginning -- as a beginning stages, aren't there, involving sales through the Internet?

Mr. Ross Jr.: --Yes.

Yes, Your Honor.

I believe that those cases say if there is an interactive web site; in other words, if the person is sitting in the United States and presses several buttons on his computer and interacts and make -- consummates the transaction, if you will, with the foreign manufacturer, then under those circumstances I believe the trend of the cases seems to be that there would be jurisdiction.

Justice Anthony Kennedy: But -- but you were cut off before you finished your answer, I want to make sure I understood it.

I -- I make the inference that you -- you would say that if there is an advertisement, not a sale, just an advertisement on the Internet, replacing the trade show, that that is a significant availment -- a purposeful availment, and there can be jurisdiction in New Jersey.

Same factors here, somebody doesn't go to the U.S. trade shows but he does put it on the Internet, same result.

Mr. Ross Jr.: That was one of the four examples that Justice O'Connor gave us in Asahi, advertising for--

Justice Anthony Kennedy: I want to know what your position is?

Mr. Ross Jr.: --Yes.

My position is yes, because they are -- they are attempting to sell into the United States with advertising.

But the trend of the decisions has been that it has to be an interactive web site.

Chief Justice John G. Roberts: Maybe everybody knows this except me.

Do you -- are web sites targeted to the United States?

Don't you -- you can -- let's say they put it on their web site in England.

Can't you -- can't -- can't I access that from here?

Mr. Ross Jr.: Yes, you can.

Chief Justice John G. Roberts: So they don't even have to send the web site to the United States?

They just have to have a web site?

Mr. Ross Jr.: If it's an interactive web site where you can sit in New Jersey, order a product, the product is then delivered by the foreign manufacturer into New Jersey and the product then chops off four fingers of someone's hand--

Chief Justice John G. Roberts: So it has to be interactive?

Mr. Ross Jr.: --Yes, Your Honor.

Chief Justice John G. Roberts: If it's just -- what if it says, here, we're McIntyre on the web site name, we make these machines, give us a call at this number if you want to buy one?

Mr. Ross Jr.: Not enough.

Chief Justice John G. Roberts: Not enough?

Mr. Ross Jr.: That's like a billboard.

That's not enough.

That's just a pure advertising; not enough.

But if the additional steps that I just mentioned are taken and the sale occurs--

Chief Justice John G. Roberts: And this distinction is somewhere in the Due Process Clause?

Mr. Ross Jr.: --I believe that the Due Process Clause requires the additional conduct.

The purposeful availment, which is what we have in your hypothetical and the actual transaction, the sale, then we have jurisdiction.

Justice Anthony Kennedy: But was the sale here negotiated in -- or part of the sale negotiated in Nevada or the person just -- the New Jersey manufacturer just was interested in the machine and then later contacted the Ohio distributor?

Mr. Ross Jr.: In this case, the manufacturer says they own the machines until they're paid for in full.

The machine was not paid for in full.

Justice Anthony Kennedy: I'm -- I'm -- I'm trying to relate what happened here to the Internet hypothetical.

I have the--

Mr. Ross Jr.: Right.

Justice Anthony Kennedy: --Internet hypothetical where there's just an advertisement.

Mr. Ross Jr.: Right.

Justice Anthony Kennedy: And at first I thought you were saying that's sufficient.

Now you're say, no, because they have to be part of the contract.

I'm trying to make the Internet equivalent to the trade show.

Mr. Ross Jr.: If the Internet web site is interactive, so you can sit in New Jersey, order the product, complete the transaction, send money, and in response to the money coming, you get a product--

Justice Anthony Kennedy: Not just an advertisement?

Mr. Ross Jr.: --Not just an advertisement.

Justice Anthony Kennedy: Even though that's the cause for the buyer's interest in it and he pursues -- pursues his -- his transaction after finding out all the information on the Internet from an Ohio distributor?

Mr. Ross Jr.: It's not enough, in my judgment, if -- under the Internet example that you just gave.

If there's an interactive web site where the person in New Jersey can press buttons on his computer and complete the transaction with the result that the product comes to New Jersey, under those circumstances, I would say there is--

Chief Justice John G. Roberts: Complete?

It's got to complete the transaction?

Mr. Ross Jr.: --That's correct.

Chief Justice John G. Roberts: What if it's -- you know, punch these numbers and we will send you an application for a machine, is that not enough, because he's got to complete the transaction?

Mr. Ross Jr.: I would say under those circumstances, that that's part of what the manufacturer requires, but the end result is that the machine winds up in New Jersey through this contact between the person and the manufacturer, then I would say that would be enough for jurisdiction.

Chief Justice John G. Roberts: So that if they say, fill this out, and contact this person, McIntyre, whatever, in Ohio, that's where you can get one of our machines, that's enough?

Mr. Ross Jr.: I would say in that case they have deliberately targeted the entire United States market, but they want you to go through their distributor, which they have hired--

Chief Justice John G. Roberts: Would their--

Mr. Ross Jr.: --in Ohio, and he sends it, it's the same situation.

Well, if there's no further questions, I would simply like to ask this Court to affirm the judgement of the Supreme Court of New Jersey in this case.

Chief Justice John G. Roberts: --Thank you, Mr. Ross.

Mr. Ross Jr.: Thank you.

Chief Justice John G. Roberts: Mr. Fergensen, you have two minutes remaining.

REBUTTAL ARGUMENT BY ARTHUR F. FERGENSON ON BEHALF OF PETITIONER

Mr. Fergenson: Thank you, Your Honor.

Justice Breyer, I would -- in response to your concern, I would ask you to look at page 29 of the State's amicus brief.

Ignorance of the fact that New Jersey is a State within our union or of the specifics of New Jersey products liability law should not allow Petitioner to avoid jurisdiction, its own lack of research, prior to embarking on a nationwide marketing campaign is no defense.

I think that--

Justice Sonia Sotomayor: I think--

Justice Elena Kagan: Mr. Fergenson, could I ask you a question?

Justice Sonia Sotomayor: --I'm sorry.

Could you -- just one quick point of clarification.

Mr. Fergenson: --Yes, Your Honor.

Justice Sonia Sotomayor: It's a point that your adversary raised in passing.

I'm not quite sure, do you sell outright to the American company?

Do you ship a product and they pay you, or they only pay you when they receive the money from their customer?

There appears to be some suggestion of the latter.

Mr. Fergenson: And the New Jersey Supreme Court said there was a suggestion that some trades could have been by consignment.

I believe that that is outside of this -- taken out of this case by an admission in the brief -- at least for this sale -- in the brief in our position to defendant's motion to dismiss at 1920 filed October 11th, 2006, where they state, where respondent states it was sold by us to MMA, and it was sold by MMA to Curcio Scrap Metal.

So, there is no consignment, there is no consignment under 9102 which Ohio has adopted.

Justice Sonia Sotomayor: It is a different question than I asked.

There was no consignment on this machine?

Mr. Fergenson: Yes.

Justice Sonia Sotomayor: But you're not claiming that there might not be on others?

Mr. Fergenson: The evidence in the record under 9102 which Ohio has adopted, I think can only be reasonably viewed -- and this Court obviously treats it as de novo, on a jurisdictional review -- can only be viewed as not a consignment because MMA was in the business of selling the products to others.

Let me say that for the -- there was no interaction in the record with anyone from New Jersey by MMA or by J. McIntyre.

It was the booth, and then there was an order.

And if you look at the invoice, it says verbal order.

There was an order by the son of the owner of Curcio metal works, and that's it.

The order was fulfilled.

Justice Elena Kagan: Mr. Fergenson, Toyota, Honda, Volkswagen -- pick your car company -- sells many millions of cars to the United States.

They start flowing up here, they operate through independent distributors only.

Can they be subject to jurisdiction in any of the States?

Mr. Fergenson: I think that most sophisticated distribution networks -- and this one was not -- I -- the defense takes it as a -- takes on the issue of this as a scheme.

Most sophisticated distribution networks, such as the manufacturers you're talking about, there is -- there is recourse to remedies throughout the United States, whether against the distributor or against the manufacturer.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Justice Ginsburg: -- just summarized.

The accident occurred in France and the defective tire that allegedly caused the bus to overturn was made and sold in Europe.

In this case, the accident occurred at a workplace in New Jersey and the manufacturer of the machine, a UK company, wanted to sell its products anywhere and everywhere in the United States.

In neither case was the U.S. forum one that could properly exercise general, all-purpose jurisdiction over the foreign defendants.

But in this case, contrary to the Court's judgment, specific jurisdiction would be appropriately exercised by New Jersey courts.

Indeed, what form is more appropriate than one in the place where McIntyre UK's machine was shipped, installed and malfunction severing local worker, Nicastro's fingers.

The plaintiff and witnesses to the accident are in New Jersey.

The law normally applicable to industrial accidents is the law of the place of injury.

And of prime importance, the foreign manufacturer sought deliberately to develop a market for its machines anywhere and everywhere in the United States.

The pattern presented here is familiar in today's international commercial relationships.

A foreign industrialist seeks to attract U.S. purchases for the products it manufactures.

McIntyre UK did so in typical fashion.

It engaged a U.S. distributor to promote its products.

It attended and exhibited at annual trade shows and other demonstrations in diverse U.S. locations.

It hoped to derive substantial revenue from sales to U.S. purchases.

And indeed, for some years, sales of McIntyre UK's products to U.S. purchases compared favorably to sales made to buyers in the rest of the world.

Where in the United States buyers resided?

New Jersey or Nevada, matter not at all to McIntyre UK.

It's goal was to sell as much as it could, wherever it could and it had liability insurance concerning personal injuries caused by its products.

Although, nothing impeded it from targeting only particular States, it excluded no region or State from the market it wished to reach hardly “at home” in each State as its market.

Rather than the United States as a whole, New Jersey would have been an unlikely candidate for exclusion.

McIntyre UK made machines used in recycling metals and New Jersey recycles more metals than any other states of the United States.

There are two things McIntyre UK clearly did not want, subjection to US courts and judgment under the product liability law of any State of the United States.

To that end, it heavily avoided shipping directly to the United States and engaged in exclusive U.S. distributor to deliver its products stateside.

Should that manner of marketing have enabled to escape jurisdiction in a State where one of its products is sold, installed and because of the defect in design or in the manufacturing process, causes injury to a local user.

"Of course, not" would be a sensible answer.

But under today's judgment, McIntyre UK is free to seek out U.S. customers nationwide, yet enjoy immunity from suit in any and every State.

Our prior decisions call for no such result.

First, they plainly reject the notion affecting the plurality opinion that a foreign defendant must somehow submit to the jurisdiction of a state court in order to legitimize the course exercise of adjudicatory authority over it.

This Court has said repeatedly the fairness, judged by the relationship among the defendant, the forum and the episode in suit is what counts.

Fictions of implied consent, prior decisions teach do not advance the proper inquiry.

If fairness is the central concept in determining questions of personal jurisdiction as we have said it is, then one might ask, “Is it not fair and reasonable given the mode of trading," of which this case is an example, “to require the international seller of a dangerous product to defend at the place of its product causes injury?”

On what measure of reason and fairness can it be considered undue to require McIntyre UK to defend in New Jersey as an incident of these efforts to develop a market for its industrial machines anywhere and everywhere in the United States?

Is not the burden on McIntyre UK to defend in New Jersey a reasonable cause of transacting business internationally in comparison to the burden on New Jersey work on Nicastro to go to Nottingham, England, transporting his witnesses with him to gain recompense for an injury sustained using McIntyre's product at his workplace in Saddle Brook, New Jersey.

Some 30 years ago, this Court said that when a manufacturer or distributor aims to sell its products to customers in several States, it is reasonable to subject it to suit in any one of the States if it’s allegedly defective product.

Has there been the source of injury?

The Court was -- is right then as it is wrong today.

In the past marking case in this area, International Shoe Company against Washington, the Court observed that an estimate of inconveniences is relevant in determining whether appropriate defendant maybe called on to respond away from its home or principal place of business.

In undertaking such an estimate, courts have differently appraised two situations.One, cases involving a local plaintiff like Nicastro injured in his home State by the activity of a defendant like McIntyre UK engaged in international trade.

And cases in which the defendant is a natural or a legal person, whose economic activities and legal involvements are largely home based, one who harbors no designs to gain substantial revenue from sales and distant markets.

This case fits the first category, a local plaintiff injured by the activity of a manufacturer seeking to exploit a multistate or global market.

On any fair estimate of the inconveniences, Nicastro should prevail before this Court for the reasons just stated developed further in the dissenting opinion.

Justice Sotomayor, Justice Kagan and I would hold McIntyre UK answerable in New Jersey for the harm Nicastro has suffered using McIntyre's UK shearing machine at his workplace in that State.

While I dissent from the Court's judgment, I take heart that the plurality opinion does not speak for the Court for that opinion, takes a giant step back from the course this Court has pursued since International Shoe and would restore a way of thinking about personal jurisdiction long discredited for its detachment from the realities of today's trading relationships.

Print this transcript Transcript: 

Justice Anthony Kennedy: This case arises from a products liability suit filed in a New Jersey state court.

Robert Nicastro seriously injured his hand while using a metal shearing device, a machine that was manufactured by J. McIntyre Machinery.

The accident occurred in New Jersey, but the machine was made in England and England is where J. McIntyre is incorporated and that's where it operates.

The question here is whether the New Jersey courts have jurisdiction over J. McIntyre, not withstanding the fact that the company at no time either marketed goods in the State or shipped from there.

Of course, Nicastro was the plaintiff in the New Jersey trial court and is the respondent here.

McIntyre was the defendant and is now the petitioner here.

The New Jersey Supreme Court held that its states courts -- its state courts could exercise jurisdiction over petitioner McIntyre.

It held that the company knew or recently should have known that its products were distributed through a nationwide distribution system that might lead to those products being sold in any of the 50 states.

Six members of the Court agree that this judgment must be reversed.

I've written a plurality opinion joined by the Chief Justice and Justices Scalia and Thomas.

That opinion explains that, at least in products liability cases, the sovereign's exercise of judicial power requires some act by which the defendant purposely avails itself of the privilege of conducting activities within the foreign State, thus invoking the benefits and the protection of its laws.

This Court's decision in an earlier case, a case called “Asahi” may impart be responsible for the New Jersey's Supreme Court's contrary conclusion that the mere placement of goods in the stream of commerce can substitute for purposeful availment.

Although, this Court invoke the stream of commerce metaphor in Asahi, it should be clear that there is no special rule of personal jurisdiction for products-liability cases.

Justice Breyer has filed an -- an opinion concurring in the judgment joined by Justice Alito.

He argues that none of this Court's precedence would support the exercise of jurisdiction over the defendant by petitioner who had only a single sale in the State as occurred here.

Because the incident at issue in this case does not invocate modern concerns, the concurring opinion would avoid using this case as an opportunity to make broad pronouncements on basic jurisdictional rules.

The petitioner is, thus, entitled to a dismissal of the suit for lack of jurisdiction.

The contrary judgment of the New Jersey Supreme Court is reversed.

Justice Ginsburg has filed a dissenting opinion in which Justices Sotomayor and Kegan joined.