NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court,
109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may
be made before this opinion goes to press.


                                         2016 VT 22

                                        No. 2015-204

State of Vermont                                             Supreme Court

                                                             On Appeal from
   v.                                                        Superior Court, Civil Unit,
                                                             Washington Division

Atlantic Richfield Company, et al.                           October Term, 2015


Mary Miles Teachout, J.

William H. Sorrell, Attorney General, Scot L. Kline, Gavin J. Boyles and Robert F. McDougall,
 Assistant Attorneys General, Montpelier, Matthew F. Pawa, Benjamin A. Krass and Wesley
 Kelman of Pawa Law Group, P.C., Newton Centre, Massachusetts, Robert J. Gordon, Robin
 Greenwald and William A. Walsh of Weitz & Luxenberg, P.C., New York, New York, and
 Scott Summy, Celeste Evangelisti and Carla Burke Pickrel of Baron & Budd, P.C., Dallas,
 Texas, for Plaintiff-Appellee.

Harry R. Ryan and Eric J. Morgan of Ryan Smith & Carbine, Ltd., Rutland, and M. Coy
 Connelly and Amy E. Parker of Bracewell & Giuliani LLP, Houston, Texas, for Defendant-
 Appellant Total Petrochemicals & Refining USA, Inc.


PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


        ¶ 1.   REIBER, C.J. This interlocutory appeal requires us to examine the contours of

the “stream-of-commerce” doctrine of personal jurisdiction, which was introduced by the U.S.

Supreme Court in a 1980 decision but later divided the Court with respect to its scope.

Defendant Total Petrochemicals & Refining USA, Inc. (TPRI) challenges a decision of the

superior court, civil division, denying its motion to dismiss, for lack of personal jurisdiction,

plaintiff State of Vermont’s complaint alleging that TPRI, along with twenty-eight other
defendants, contaminated the waters of the state by introducing into those waters a gas additive

called methyl tertiary butyl ether (MTBE). We affirm.

       ¶ 2.    In June 2014, the State filed a seventy-six-page complaint in the superior court

alleging that the decision of the twenty-nine defendants, all major oil and chemical companies, to

manufacture MTBE or to refine, blend, or supply gasoline containing MTBE, and/or to promote,

market, or distribute the sale of such gasoline, knowing that it would reach and contaminate the

waters of the State of Vermont, caused widespread degradation—as well as a threat of future

harm—to both surface water and groundwater within the state. The complaint stated that,

compared to other gasoline constituents, MTBE contaminates and spreads in water more quickly

and resists removal and treatment, thereby presenting a particularly serious threat to state waters.

The complaint also stated that defendants were aware of, but concealed, the risks associated with

using the additive in gasoline. The complaint set forth nine causes of action, including actions

for restoration of damaged natural resources and groundwater in violation of 10 V.S.A. §§ 1390

and 1410, public and private nuisance, trespass, negligence, strict liability for design defect and

failure to warn, and civil conspiracy. Among other things, the State sought compensation for

damages to natural resources and for the costs of investigating, monitoring, and remediating

those damages, as well as injunctive and equitable relief and punitive damages.

       ¶ 3.    In August 2014, TPRI filed a motion to dismiss the complaint for lack of personal

jurisdiction, arguing that the company did not have the required minimum contacts with Vermont

and that asserting personal jurisdiction over it would violate traditional notions of fair play and

substantial justice. Along with the motion, TPRI filed an affidavit of its senior manager for

financial accounting, who averred, among other things, that: (1) TPRI is a Delaware corporation

engaged in petroleum refining and the manufacture of petrochemicals, with headquarters in

Houston, Texas, and facilities in Texas, Louisiana, Colorado, Connecticut, and Alabama; (2)

TPRI has never been registered with the Vermont Secretary of State and has never been qualified

                                                 2
to do business in the State of Vermont; (3) TPRI has never maintained employees or an office in

Vermont and has never entered into a contract with any distributor for the delivery of MTBE, or

gasoline containing MTBE, into Vermont; (4) “TPRI never refined gasoline containing MTBE,

manufactured MTBE, blended MTBE, supplied gasoline containing MTBE, or otherwise made,

marketed, advertised, stored, or sold any product containing MTBE in Vermont”; and (5) from

2006 to the present, only 0.0013% of TPRI’s total revenue came from Vermont sales.

       ¶ 4.   In its opposition to TPRI’s motion to dismiss, the State argued that TPRI should

be subject to personal jurisdiction in Vermont because it had knowingly placed its fungible

commercial products in a national distribution system that included Vermont. Along with its

memorandum of law opposing TPRI’s motion, the State submitted an affidavit of its expert, a

senior vice-president of an energy and chemicals advisory business, discussing how gasoline is

manufactured and distributed to retail gas stations in the United States and in particular the

Northeast and Vermont. The expert explained that gasoline from refineries is commingled in

pipelines and sent to various distribution centers, where it is moved by other means of

transportation to retail gas stations. The expert focused in particular on the distribution of

gasoline into the East Coast market and from there into New England and Vermont. The expert

opined that although it is impossible to determine the origin of any given gallon of gasoline

because of its fungible nature and commingling in transport, over time any supplier of gasoline

into the East Coast market will have supplied gasoline throughout the entire supply system,

including New England and Vermont.

       ¶ 5.   Thus, according to the expert, it was “reasonable to conclude” that refiners

supplying MBTE-gasoline to the East Coast distribution system understood the fungible nature

of the gasoline they produced and the likelihood that, over time, they were supplying MTBE-

gasoline to the northern terminus of the Colonial Pipeline in New Jersey and onward to New

England and Vermont. The expert identified three activities by TPRI that linked that company to

                                              3
the supply of MTBE-gasoline in Vermont: (1) blending MTBE-gasoline in New Jersey storage

tanks, some of which was more likely than not to have ended up in Vermont; (2) manufacturing

MTBE-gasoline in its Texas refinery and shipping it on to the Colonial Pipeline, where more

likely than not some of it found its way into Vermont; and (3) selling MTBE to numerous

national gasoline marketers over a twenty-year period ending in 2007, with the reasonable

expectation that its MTBE would be distributed nationally, including in New England and

Vermont.

       ¶ 6.    The State also argued, in the alternative, that if the superior court deemed its

submission in opposition to TPRI’s motion to dismiss insufficient for the court to exercise

personal jurisdiction over TPRI, it should be given the opportunity to engage in discovery on the

question of jurisdiction. In response to the State’s opposition to its motion, TPRI argued that the

undisputed facts and controlling law precluded the State of Vermont from asserting personal

jurisdiction over it. TPRI asked the court to deny the State’s request for discovery on the

jurisdictional question, arguing that the State was not entitled to discovery because it had failed

to make a prima facie case by asserting any specific, non-conclusory facts that could establish

personal jurisdiction.

       ¶ 7.    Following oral argument on TPRI’s motion to dismiss, the superior court denied

the motion in a January 16, 2015 decision. The court ruled that “[b]ecause TPRI undisputedly

manufactured neat MTBE and MTBE gasoline and sold those products to national distributors

who in turn distributed those products for sale in the northeast market, including in Vermont,

TPRI has sufficient contacts with the State of Vermont for the exercise of personal jurisdiction

over it with respect to alleged injuries resulting from the sale of MTBE gasoline in Vermont.”

On May 22, 2015, in response to TPRI’s motion for reconsideration, the court reiterated that

personal jurisdiction was established in Vermont because “TPRI took active steps in sending its

products through the Colonial Pipeline from Texas to New Jersey and conducted activities in

                                                4
New Jersey that actively directed its products for distribution and use throughout the entire

northeastern United States gasoline market, including Vermont, such that it could have been

foreseen being haled into court in Vermont as a destination state.”

       ¶ 8.    On appeal, TPRI argues that the superior court erred by denying its motion to

dismiss because neither Vermont’s long-arm statute nor established principles of federal due

process as set forth in controlling case law permit the exercise of personal jurisdiction over a

nonresident defendant based solely on either mere participation in an alleged national market or

the unilateral conduct of third parties.

       ¶ 9.    The superior court “has discretion to decide a pretrial motion to dismiss for lack

of personal jurisdiction on the basis of affidavits alone, to permit discovery, and to conduct an

evidentiary hearing.” Godino v. Cleanthes, 163 Vt. 237, 239, 656 A.2d 991, 992 (1995). If, as

in this case, “a court chooses to rule on a motion to dismiss for lack of personal jurisdiction on

the basis of affidavits alone, the party opposing [the] motion need make only a prima facie

showing of jurisdiction, or, in other words, demonstrate facts which would support a finding of

jurisdiction.” Id. The nonmoving party’s prima facie showing must go beyond the pleadings

and rely upon specific facts set forth in the record. Schwartz v. Frankenhoff, 169 Vt. 287, 295,

733 A.2d 74, 81 (1999). “In assessing the submitted materials, the [trial] court eschews fact

finding and simply accepts properly supported proffers of evidence as true and rules on the

jurisdictional question as a matter of law.” Id. (quotation omitted). “Our review of the trial

court’s legal analysis concerning personal jurisdiction is nondeferential and plenary.” Fox v.

Fox, 2014 VT 100, ¶ 9, 197 Vt. 466, 106 A.3d 919.

       ¶ 10.   “It is well settled that Vermont courts must have both statutory and constitutional

power to exercise personal jurisdiction over a nonresident defendant.” Id. Because “Vermont’s

long-arm statute, 12 V.S.A. § 913(b), permits state courts to exercise jurisdiction over

nonresident defendants to the full extent permitted by the [federal] Due Process Clause,” our

                                                5
statutory and constitutional analyses are the same—the jurisdictional issue is resolved under

federal constitutional law as interpreted by the U.S. Supreme Court. Id. (quotation omitted); see

also N. Aircraft, Inc. v. Reed, 154 Vt. 36, 40-41, 572 A.2d 1382, 1385-86 (1990).

       ¶ 11.   The crux of TPRI’s argument on appeal is that recent controlling U.S. Supreme

Court case law—specifically J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 1058, 131 S. Ct. 2780

(2011) and Walden v. Fiore, ___ U.S. ___, 134 S. Ct. 1115 (2014)—preclude Vermont courts

from exercising personal jurisdiction over it in this case. According to TPRI, those cases stand

for the propositions, respectively, that a defendant cannot be subjected to personal jurisdiction

based on either the mere foreseeability that its product will end up in the subject forum or the

unilateral conduct of third parties. We conclude that the governing law permits the exercise of

personal jurisdiction in Vermont under the circumstances of this case.

       ¶ 12.   A review of the U.S. Supreme Court case law on personal jurisdiction generally

and the stream-of-commerce doctrine specifically reveals the following. “The Due Process

Clause of the Fourteenth Amendment [to the United States Constitution] limits the power of a

state court to render a valid personal judgment against a nonresident defendant.” World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980). “[A] state court may exercise

personal jurisdiction over a nonresident defendant only so long as there exist ‘minimum

contacts’ between the defendant and the forum State.”           Id. (quoting Int’l Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945)). The concept of minimum contacts not only “protects

the defendant against the burdens of litigating in a distant or inconvenient forum,” but also “acts

to ensure that the States through their courts, do not reach out beyond the limits imposed on them

by their status as coequal sovereigns in a federal system.” World-Wide Volkswagen, 444 U.S. at

291.

       ¶ 13.   “The limits imposed on state jurisdiction by the Due Process Clause . . . have been

substantially relaxed over the years”—a “trend” that is “largely attributable to a fundamental

                                                6
transformation in the American economy” resulting from an ever-increasing nationalization of

commerce. Id. at 292-93; see also Dall v. Kaylor, 163 Vt. 274, 277, 658 A.2d 78, 80 (1995) (“As

technology and economic practices diminish the importance of geographic boundaries, it is not

unreasonable to anticipate the expansion of personal jurisdiction to those who deliberately

transcend those boundaries in pursuit of economic gain.”). Although “ ‘foreseeability’ ” alone

has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause,” it

is not “wholly irrelevant.”       World-Wide Volkswagen, 444 U.S. at 295, 297.                  “[T]he

foreseeability that is critical to due process analysis is not the mere likelihood that a product will

find its way into the forum State,” but rather “that the defendant’s conduct and connection with

the forum State are such that he should reasonably anticipate being haled into court there.” Id. at

297.

       ¶ 14.   “A court may exercise either general or specific jurisdiction over a nonresident

defendant.” Fox, 2014 VT 100, ¶ 27. Although the State in this case also argues that there is

general jurisdiction, which “applies to suits not arising out of or related to the defendant’s

contacts with the forum state,” the principal focus of its argument is on specific jurisdiction,

which requires that “a defendant has ‘purposefully directed . . . activities at residents of the

forum and the litigation results from alleged injuries that arise out of or relate to those

activities.’ ” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)). Specific

jurisdiction is satisfied when a defendant has “fair warning” that a particular activity may subject

it to the jurisdiction of a state by virtue of the fact that the defendant “purposefully directed” its

activities at residents of the forum state and that the litigation results from injuries arising out of

or relating to those activities. Burger King, 471 U.S. at 472-73 (quotations omitted).

       ¶ 15.   Therefore, “[t]he forum State does not exceed its powers under the Due Process

Clause if it asserts personal jurisdiction over a corporation that delivers its products into the

stream of commerce with the expectation that they will be purchased by consumers in the forum

                                                  7
State.” World-Wide Volkswagen, 444 U.S. at 297-98 (emphasis added). On the other hand,

neither “random, fortuitous, or attenuated contacts,” Burger King, 471 U.S. at 475 (quotations

omitted), nor “the mere unilateral activity of those who claim some relationship with a

nonresident can[] satisfy the requirement of contact with the forum State,” World-Wide

Volkswagen, 444 U.S at 298 (quotation omitted).

       ¶ 16.   Since this stream-of-commerce doctrine was established in World-Wide

Volkswagen, factions of the U.S. Supreme Court have at times set forth competing versions of

the scope of the doctrine in plurality decisions. In Asahi Metal Indus. Co., Ltd. v. Super. Ct. of

California, 480 U.S. 102 (1987), the only part of a products liability action arising from a

motorcycle accident that remained when it reached the Court was an indemnity action by one of

the foreign defendants, the maker of the motorcycle’s tire and tube, against another foreign

defendant, the maker of the tube’s valve assembly. The question presented was whether the

valve-assembly defendant’s “mere awareness . . . that the components it manufactured, sold, and

delivered outside the United States would reach the forum State in the stream of commerce

constitutes minimum contacts between the defendant and the forum State such that the exercise

of jurisdiction” did not violate due process. Asahi, 480 U.S. at 105 (quotation omitted). Noting

a disagreement among lower courts over the scope of the stream-of-commerce analysis set forth

in World-Wide Volkswagen, the four-member plurality opinion stated that personal jurisdiction

does not result from the mere placement of a product into the stream of commerce knowing that

it may wind up in the forum state, but rather requires additional conduct by the defendant such as

“designing the product for the market in the forum State, advertising in the forum State,

establishing channels for providing regular advice to customers in the forum State, or marketing

the product through a distributor who has agreed to serve as the sales agent in a forum State.” Id.

at 112. In holding that imposing personal jurisdiction would be unreasonable and unfair, the



                                                8
plurality opinion noted that the valve-assembly defendant “did not create, control, or employ the

distribution system that brought its valves to California.” Id. at 113.

       ¶ 17.   On the other hand, the four-member concurring opinion stated that, by requiring

conduct beyond placing goods in the stream of commerce, the plurality opinion represented a

minority view among the federal circuit courts and “a marked retreat from the analysis in World-

Wide Volkswagen.” Id. at 118 (Brennan, J., concurring). According to the concurring justices,

due process is satisfied as long as “[t]he stream of commerce refers not to unpredictable currents

or eddies, but to the regular and anticipated flow of products from manufacture to distribution to

retail sale,” and the defendant, “as a participant in this process is aware that the final product is

being marketed in the forum State.” Id. at 117.

       ¶ 18.   The debate in the Supreme Court over the scope of World-Wide-Volkswagen’s

stream-of-commerce doctrine continued twenty-four years later in J. McIntyre Machinery, Ltd.

v. Nicastro. That case also involved a products liability action against a foreign manufacturer.

The Court divided once again, issuing a four-justice plurality opinion, a two-justice concurring

opinion, and a three-justice dissent. The plurality opinion reversed a decision of the New Jersey

Supreme Court concluding that the British manufacturer of scrap metal machines was subject to

personal jurisdiction in New Jersey even though it had not advertised in, sent goods to, or

otherwise particularly targeted the forum state. McIntyre, 131 S. Ct. at 2785. In so ruling, the

plurality opinion noted and rejected the broader stream-of-commerce analysis in Justice

Brennan’s concurring opinion in Asahi. Id. at 2788-89.

       ¶ 19.   The controlling concurring opinion, authored by Justice Breyer and joined by

Justice Alito, concluded that the facts—(1) one machine sold on one occasion in New Jersey; (2)

the manufacturer’s desire to have its American distributor sell its machines to anyone in America

willing to buy them; and (3) the manufacturer’s attendance at trade shows in cities outside New

Jersey—demonstrated neither a regular flow of its product, nor a regular course of sales in New

                                                  9
Jersey, nor something more such as special state-related designs or advertising. Id. at 2791-92

(Breyer, J., concurring). While joining the plurality’s mandate, the concurring opinion cited both

the plurality and concurring opinions in Asahi in support of its position. Id. at 2792. The three

dissenters, relying heavily on World-Wide Volkswagen and Justice Brennan’s concurrence in

Asahi, included an appendix demonstrating that federal and state courts confronting facts similar

to that case had “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.” Id. at 2801, 2804-06 (Ginsburg, J., dissenting). While

not carrying the day in that case, the dissenters took “heart that the plurality opinion does not

speak for the Court.” Id. at 2804.

       ¶ 20.   Hence, World-Wide Volkswagen’s stream-of-commerce analysis is the governing

law on the stream-of-commerce doctrine, given the failure of the competing factions on the U.S.

Supreme Court since that decision to garner a majority of votes to limit or expand the doctrine.

“Because neither Justice Brennan’s nor Justice O’Connor’s test garnered a majority of the votes

in Asahi, neither test prevailed as the applicable precedent.” AFTG-TG, LLC v. Nuvoton Tech.

Corp., 689 F.3d 1358, 1362 (Fed. Cir. 2012).         Moreover, “the crux of Justice Breyer’s

concurrence [in McIntyre] was that the Supreme Court’s framework applying the stream-of-

commerce theory—including the conflicting articulations of that theory in Asahi—had not

changed, and that the defendant’s activities in McIntyre failed to establish personal jurisdiction

under any articulation of that theory.” Id. at 1363; see McIntyre, 131 S. Ct. at 2792 (Breyer, J.,

concurring) (stating that, on record presented, “resolving this case requires no more than

adhering to our precedents”). “Because McIntyre did not produce a majority opinion,” courts

“must follow the narrowest holding among the plurality opinions in that case,” which is J.

Breyer’s determination “that the law remains the same after McIntyre.” AFTG-TG, LCC, 689

F.3d at 1363; accord Ainsworth v. Moffett Eng., Ltd., 716 F.3d 174, 175 (5th Cir. 2013); see also

                                               10
In re Chinese-Manufactured Drywall Prods. Liab. Litig., 753 F.3d 521, 541 (5th Cir. 2014)

(stating that “the law remains the same after McIntyre, and that circuit courts may continue to

attempt to reconcile the Supreme Court’s competing articulations of the stream of commerce

test”).

          ¶ 21.   Accordingly, we reject TPRI’s argument that both the plurality and concurring

opinions in McIntyre preclude the exercise of personal jurisdiction over a defendant based solely

on the defendant’s introduction of its product into a national distribution system aimed at

bringing the product into the forum state among others. Indeed, as noted, the fundamental

principle articulated in World-Wide Volkswagen is that although neither random nor fortuitous

acts can create personal jurisdiction, “[t]he forum State does not exceed its powers under the Due

Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into

the stream of commerce with the expectation that they will be purchased by consumers in the

forum State.” 444 U.S. at 297-98; cf. Hedges v. W. Auto Supply Co., 161 Vt. 614, 614-15, 640

A.2d 536, 537 (1994) (stating that, even absent evidence that product was sold in Vermont,

defendant’s sale of product to distributor for national marketing, including in Vermont, was

sufficient to establish personal jurisdiction over defendant); Pasquale v. Genovese, 136 Vt. 417,

421, 392 A.2d 395, 398 (1978) (mem.) (finding personal jurisdiction based “upon the

defendant’s active, planned participation in the Vermont market, through a chain of manufacture

and distribution set up for the purpose, and through eventual sale of the [product] in Vermont”).

          ¶ 22.   This principle was applied by the United States District Court for the Southern

District of New York in two 2005 cases involving facts similar to the instant case. The cases

concerned lawsuits in which dozens of municipalities and related entities filed actions against

hundreds of companies in the petroleum industry, alleging that the companies caused or

threatened the contamination of groundwater with the introduction of MTBE. Specifically, the

cases addressed the motions of particular defendants seeking to dismiss the lawsuits for lack of

                                                 11
personal jurisdiction. In the first case, the court reviewed the two competing opinions in Asahi

construing the scope of the stream-of-commerce doctrine, but noted that neither constituted

binding decisions and that the holding and reasoning in World-Wide Volkswagen remained the

controlling law. In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., Master File

No. 1:00-1898, MDL No. 1358(SAS), No. M21-88, 2005 WL 106936, at *7-8 (S.D.N.Y. Jan. 18,

2005). Citing the regular and anticipated flow of the defendant’s product into the stream of

commerce, the court found personal jurisdiction was warranted in the forum states because the

defendant manufacturer of MTBE had created a national market for its product and had sold it to

refiners, traders, and blenders who incorporated it into their gasoline. Id. at *9. The court

reached the same conclusion with two other defendants in the second case, stating that one

defendant had “supplie[d] MTBE-containing gasoline to the national market” and thus

reasonably should have expected “its product to reach all of the states in the nation,” and that the

other defendant had produced MTBE in Texas that reached the forum states through “sales to

other refiners with nationwide distribution.” See In re Methyl Tertiary Butyl Ether (“MTBE”)

Prods. Liab. Litig., 399 F. Supp. 2d 325, 332-33 (S.D.N.Y. 2005).

       ¶ 23.   Based on similar reasoning, given the facts of this case as they have been

developed thus far, we conclude that the superior court did not err in denying TPRI’s motion to

dismiss for lack of personal jurisdiction. In its complaint, the State alleged that TPRI was one of

twenty-nine companies that refined, marketed, or otherwise supplied, directly or indirectly,

MTBE or gasoline containing MTBE—a fungible product commingled during transport—into a

nationwide distribution system that they knew or should have known would bring their product

into Vermont. Further, the affidavit of the State’s expert in support of its opposition to TPRI’s

motion to dismiss explained that gasoline is a fungible product commingled in pipelines to

various distribution centers, including to a distribution center in New Jersey, from which

gasoline is trucked throughout New England, including Vermont. The expert also opined that

                                                12
companies such as TPRI that supply MBTE-gasoline to the East Coast distribution system do so

with the understanding that the fungible gasoline they supplied through this system was likely to

eventually end up in the Northeast, including Vermont. Rather than contest these allegations,

TPRI opposed the State’s request for discovery to prove the allegations, which describe activities

resulting in a regular and anticipated, rather than a random or fortuitous, introduction of TPRI’s

products into Vermont. The State’s complaint and accompanying affidavit are sufficient for the

superior court to exercise specific personal jurisdiction over TPRI.

       ¶ 24.   TPRI argues that, instead of relying upon the 2005 decisions of the United States

District Court for the Southern District of New York, we should rely upon that same court’s

2014 decision in which the court granted the defendant’s motion to dismiss, for lack of personal

jurisdiction in the Commonwealth of Puerto Rico, a complaint alleging injuries resulting from

the defendant’s use and handling of MTBE. See In re Methyl Tertiary Butyl Ether (“MTBE”)

Prods. Liab. Litig., Master File No. 1:00-1898, MDL No. 1358 (SAS), No. M21-88, 2014 WL

1778984 (S.D.N.Y. May 5, 2014). The defendant in the Puerto Rico case was a Texas-based

marketer of energy products who had sold MTBE to an oil company in Oklahoma “in a series of

spot sales.” Id. at *1. In its brief analysis, the court granted the defendant’s motion to dismiss

based on the following findings and conclusions: (1) the purchasing oil company’s independent

decision to ship the MTBE to Puerto Rico did not establish jurisdiction over the defendant

because it was not foreseeable, and in any case foreseeability alone does not establish

jurisdiction; (2) no evidence showed that the defendant knew, or had any way of knowing, that

its MTBE was blended into gasoline destined for Puerto Rico; and (3) jurisdiction could not be

based on the actions of the defendant’s subsidiary company. Id. at *3-4.

       ¶ 25.   TPRI contends that this Court should rely on this latter case—which was decided

after the U.S. Supreme Court’s decisions in McIntyre and Walden—rather than the outdated

cases decided in 2005 before those Supreme Court cases issued. The State responds to this

                                                13
argument by attempting to distinguish the 2014 case, noting that it involved “spot sales” to the

island territory of Puerto Rico, and thus the court did not consider the defendant’s distribution of

its product through a national distribution system.

       ¶ 26.   We decline TPRI’s invitation to rely upon the Puerto Rico case. First, we note

that the brief decision did not rely upon or even cite McInytre, presumably because it recognized,

as we have here, that McIntyre did not alter previous controlling law on the stream-of-commerce

doctrine. Second, although the court cited Walden v. Fiore, ___ U.S. ___, 134 S. Ct. 1115, 1122

(2014), for the proposition that personal jurisdiction may be established only by the

defendant’s—and not a third party’s—contacts with the forum state, that proposition was not

introduced in Walden, but rather was well established and in fact stated in World-Wide

Volkswagen—the very case that introduced the stream-of-commerce doctrine. See 444 U.S. at

298 (“[T]he mere ‘unilateral activity of those who claim some relationship with a nonresident

defendant cannot satisfy the requirement of contact with the forum State.’ ” (quoting Hanson v.

Denckla, 357 U.S. 235, 253 (1958))). Walden is not a stream-of-commerce case and offers little,

if anything, to the analysis here. In the end, we do not find the Puerto Rico case persuasive to

the extent that it diverges from the 2005 cases and our analysis above. We uphold the superior

court’s exercise of personal jurisdiction over TPRI based upon the company’s own conduct and

contacts with Vermont via the nationwide gasoline distribution system—pursuant to the stream-

of-commerce doctrine—not the conduct or contacts of independent third parties.

       ¶ 27.   Finally, TPRI argues that asserting jurisdiction over it would violate traditional

notions of fair play and substantial justice. We disagree. “Once it has been decided that a

defendant purposefully established minimum contacts within the forum State, these contacts may

be considered in light of other factors to determine whether the assertion of personal jurisdiction

would comport with fair play and substantial justice.” Burger King, 471 U.S. at 476 (quotation

omitted); see N. Aircraft, 154 Vt. at 42, 572 A.2d at 1386 (same). Those factors include “the

                                                14
burden on the defendant, the forum State’s interest in adjudicating the dispute, the plaintiff’s

interest in obtaining convenient and effective relief, the interstate judicial system’s interest in

obtaining the most efficient resolution of controversies, and the shared interest of the several

States in furthering fundamental substantive social policies.” Burger King Corp., 471 U.S. at

477 (quotations omitted). “[W]here a defendant who purposefully has directed [its] activities at

forum residents seeks to defeat jurisdiction, [it] must present a compelling case that the presence

of some other considerations would render jurisdiction unreasonable.” Id. Thus, “dismissals

resulting from the application of the reasonableness test should be few and far between.” Metro.

Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 575 (2d Cir. 1996).

       ¶ 28.   Here, TPRI argues that because it is headquartered in Texas and has no presence

in Vermont, the State’s interest in protecting its groundwater, while legitimate, “cannot

overcome TPRI’s lack of minimum contacts with Vermont.” Essentially, TPRI is still warring

with the superior court’s finding of minimum contacts, which we have upheld. This argument

falls far short of making a compelling case that it is unreasonable to force the company to litigate

in Vermont the State’s contention that TPRI’s product contaminated state waters.

       Affirmed.



                                               FOR THE COURT:



                                               Chief Justice




                                                15
