Gray, Ritter & Graham, PC Wolf Haldenstein Adler Freeman & Herz, LLC Neblett Beard & Arsenault, LLP Don M. Downing And Adam J. Levitt v. Goldman Phipps PLLC F/K/A Goldman Pennebaker & Phipps, PC Mikal C. Watts, PC And Murray Law Firm

NUMBER 13-14-00310-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

GRAY, RITTER & GRAHAM,
PC; WOLF HALDENSTEIN
ADLER FREEMAN & HERZ, LLC;
NEBLETT BEARD & ARSENAULT, LLP;
DON M. DOWNING; AND
ADAM J. LEVITT, Appellants,

v.

GOLDMAN PHIPPS PLLC
F/K/A GOLDMAN PENNEBAKER
& PHIPPS, PC; MIKAL C. WATTS,
PC; AND MURRAY LAW FIRM, Appellees.

On appeal from the County Court at Law No. Two
of Nueces County, Texas.

OPINION
 Before Justices Benavides, Perkes, and Longoria
Opinion by Justice Longoria

Appellants, Gray, Ritter & Graham, P.C. (“GRG”), Wolf Haldenstein Adler Freeman

& Herz LLC (“WHAFH”), Neblett Beard & Arsenault LLP (“NBA”), Don M. Downing, and

Adam J. Levitt, appeal the trial court’s denial of their special appearances. Appellants

served as leadership counsel representing the plaintiffs in multidistrict litigation in federal

court against Bayer CropScience L.P. and other entities (collectively “Bayer”) based on

the escape of genetically modified rice into the nation’s rice crops. Appellees, Goldman

Phipps, PLLC f/k/a Goldman Pennebaker & Phipps, P.C., Mikal C. Watts, P.C., and

Murray Law Firm also represented plaintiffs bringing claims against Bayer, however, their

cases were generally filed in Texas and other state courts rather than in the federal

multidistrict litigation case. Appellants claim that appellees owe them attorney’s fees from

a settlement that appellees reached with Bayer in the state court cases. In the underlying

proceeding, appellees filed a declaratory judgment action against appellants to construe

appellants’ rights to the fees under the state court settlement agreement.

After examining the principles of jurisdiction at issue in this case and the

jurisdictional evidence provided by the parties, we affirm the trial court’s order denying

appellants’ special appearances on grounds that the appellants purposefully availed

themselves of the privilege of conducting activities in Texas and their liability arose from

or was related to those contacts.

I. BACKGROUND

In August of 2006 and March of 2007, the United States Department of Agriculture

announced that two unapproved genetically modified varieties of rice developed by Bayer

had escaped from Bayer’s test plots into the nation’s rice crops. As a result, thousands

2
of rice farmers, land owners, and rice producers in the five main rice-producing states,

Texas, Arkansas, Louisiana, Mississippi, and Missouri, brought suit against Bayer for their

damages. The United States Judicial Panel on Multidistrict Litigation transferred and

consolidated the cases that had been filed in or removed to federal court into a single

federal multi-district case in the United States District Court for the Eastern District of

Missouri before the Honorable Catherine D. Perry (the “genetically modified rice MDL”).

After receiving and reviewing various proposals from law firms who wished to serve

as leadership counsel for the plaintiffs in the genetically modified rice MDL, Judge Perry

appointed Downing from the law firm of GRG, and Levitt, who at that time was a partner

with WHAFH, to serve as co-lead counsel for all of the plaintiffs. Judge Perry appointed

Arsenault of NBA to serve on the plaintiffs’ executive committee. Judge Perry directed

co-lead counsel and the plaintiffs’ executive committee (collectively referred to as the

leadership group or the common benefit attorneys), to act on behalf of all plaintiffs in the

genetically modified rice MDL in prosecuting the case.1 The leadership group engaged

in discovery, including taking over 150 depositions, retained experts, and handled

dispositive motions. The leadership group picked groups of plaintiffs from each state for

“bellwether” trials to be held in St. Louis, Missouri.2 The leadership group conducted the

trials, three of which resulted in verdicts for the plaintiffs, and a fourth trial which settled

after the first week. The fourth bellwether trial, which settled, featured Texas plaintiffs.

1According to the order appointing leadership counsel, the Plaintiffs’ Executive Committee was
composed of Arsenault and Scott E. Poynter of Emerson Poynter LLP; Stephen A. Weiss of Seeger Weiss
LLP; Joe R. Whatley, Jr. of Whatley Drake & Kallas LLC; William Chaney of Looper, Reed & McGraw, P.C.;
and Ralph E. Chapman of Chapman Lewis & Swan.

2 A “bellwether” trial is used to assess whether a class should be certified or to assess a claim’s

value for settlement purposes. In re FEMA Trailer Formaldehyde Products Liab. Litig., 628 F.3d 157, 159
n.1 (5th Cir. 2010).

3
 While the genetically modified rice MDL proceeded in federal court, other cases

against Bayer remained in state courts and were prosecuted in essentially parallel

litigation by appellees in Texas, Arkansas, and Louisiana. Appellees represented

approximately 5,000 of the plaintiffs in the state court litigation and also represented some

of the clients who had claims pending in the federal MDL.3 In the state court litigation,

appellees conducted discovery, including taking over 120 state court depositions, and

handled dispositive motions. Appellees tried two of the state court cases to verdict, one

of which constituted the first punitive damage verdict and the highest overall per-acre

award against Bayer.

After the bellwether trials in the genetically modified rice MDL and the two state

court trials, Bayer offered to settle all claims against it, in both the federal MDL proceeding

and the state court claims, through a global settlement totaling $750 million. Bayer wished

to buy “global peace,” and thus all claims against it, whether filed in the federal MDL or in

state court, had to be settled for the total amount in order for the settlement to be

effectuated. In order to accomplish the global settlement, Bayer entered into two separate

settlement agreements. One of the settlement agreements, the genetically modified rice

MDL settlement agreement, related exclusively to plaintiffs whose cases were included

in the federal rice MDL, for which the appellants served as the leadership group. The

second settlement agreement, the GMB4 state court settlement agreement, resolved the

claims of state court litigants who were appellees’ clients.

3 Appellees’ clients in the MDL included 251 Texas rice farming operations who had originally filed

their claims in Texas state court; however, those claims were removed to federal court and ultimately
transferred into the genetically modified rice MDL.
4 The GMB state court settlement agreement appears to be titled as such based on the names of

the plaintiffs’ law firms participating in the agreement. According to the initial recital in the agreement, it “is
entered into by and among (i) Bayer, (ii) each of Goldman, Pennebaker and Phipps, P.C. (“GPP”), Mikal C.

4
 Watts testified that the GMB state court settlement was negotiated first. According

to Watts, appellants were not signatories on the GMB state court settlement agreement,

however, they were “involved” in that settlement. Watts testified that Bayer would not

agree to settle any claims against it unless the plaintiffs in both the MDL and state court

cases agreed to settle for the total sum of $750 million. “And so the different parties had

to, in effect, approve the other settlement because there was money moving around

between the two.” Watts testified that appellants “got to be the signatories on the MDL

settlement” and “[w]e got to be the signatories on the GMB settlement.” Watts testified

that “there was plenty [of] back and forth about what should be in each after the original

deal was done.”

The funds for the GMB state court settlement were structured through a qualified

settlement fund agreement.” The purpose of the fund was to “accept, hold and distribute

funds” paid by Bayer in consideration of the settlement of all claims against Bayer and a

full and final release. According to the qualified settlement fund agreement:

Allocation issues exist as to the settlement, including but not limited
to allocation among the plaintiffs and various attorneys, payment of fees
and litigation expenses, potential liens and other unresolved matters. It is
the best interests of the Plaintiffs that the money be paid into a Fund which
earns income rather than held by [Bayer] while those issues are being
resolved.
....

. . . To the extent that there is any dispute of the administration and
payouts to be made by this fund, or need for a court order to terminate this
fund, such matters shall be resolved by a suit being filed in the county courts
at law of Nueces County, Texas, and such Court shall have exclusive
jurisdiction over any disputes as to the administration and pay outs to be
made by this Fund, and any issues concerning the termination of this fund.

Watts, P.C. (“MCWPC”), Chuck Banks (“Banks”) and the Murray Law Firm (“Murray”) (collectively referred
to herein as “GMB”) and (iii) each GMB Client who is bound by this Agreement according to its terms.”

5
 After their appointment and during the pendency of the federal MDL case, the

leadership group had requested Judge Perry to establish a common benefit fund5 on

grounds that the leadership group had, to that date, incurred $20,000,000 in fees in

prosecuting the rice MDL. They requested that Judge Perry set aside eleven percent of

the overall recovery of all of the rice litigants, both federal MDL plaintiffs and state court

plaintiffs, and pay that amount into the common benefit fund. Bayer and appellees

objected to that request. In February of 2010, Judge Perry issued an order instructing

Bayer to withhold 11% of the funds to be paid to the federal MDL plaintiffs and to place

those funds into a common benefit fund as both attorneys’ fees and compensation for

courts costs incurred by the federal MDL plaintiffs’ lawyers, including the leadership

group. The court ordered a disbursement of up to seventy-two million dollars to the

leadership group and the other attorneys and firms who worked with them. While the

leadership group had also requested Judge Perry to order Bayer to withhold a portion of

the state court GMB settlement for the same purpose, Judge Perry denied that request.

Both groups of attorneys appealed, and the Eighth Circuit affirmed. In re Genetically

Modified Rice Litig., 764 F.3d 864, 873–74 (8th Cir. 2014), cert. denied, 135 S.Ct. 1455

(Feb. 23, 2015); see also Downing v. Goldman Phipps PLLC, No. 4:13CV206 CDP, 2015

5 Under the “American Rule” pertaining to the award of attorneys’ fees, the prevailing litigant is

ordinarily not entitled to collect a reasonable attorney’s fee from the losing litigant. Pennsylvania v. Del.
Valley Citizens’ Council for Clean Air, 478 U.S. 546, 561 (1986). Likewise, the attorney for the prevailing
litigant must generally look to his or her own client for payment of attorneys’ fees. See id.; In re Vioxx
Products Liab. Litig., 760 F. Supp. 2d 640, 647 (E.D. La. 2010). The “common benefit” doctrine provides
an equitable exception to the American Rule that permits the creation of a common fund in order to pay
reasonable attorneys’ fees for legal services beneficial to persons other than a particular client, thus
spreading the cost of the litigation to all beneficiaries. See In re Zyprexa Prods. Liab. Litig., 594 F.3d 113,
128 (2d Cir. 2010) (Kaplan, J., concurring). This equitable exception was originally most commonly applied
to awards of attorneys’ fees in class actions; however, the common benefit concept has migrated into
multidistrict litigation. In re Vioxx Products Liab. Litig., 760 F. Supp. 2d at 647. “The theoretical bases for
the application of this concept to MDLs are the same as for class actions, namely equity and her blood
brother, quantum meruit. However, there is a difference. In class actions the beneficiary of the common
benefit is the claimant; in MDLs the beneficiary is the primary attorney.” See id.

6
WL 3971054, at *1 (E.D. Mo. June 30, 2015). The Eighth Circuit held, inter alia, that the

MDL court acted within its discretion in awarding fees and expenses to lead counsel; that

the MDL court acted within its discretion in declining to award fees to non-lead attorneys;

and that the MDL court did not have power to order parties in cases not before it to

contribute to the settlement fund. See id.

Between July of 2010 and May of 2011, the leadership group attempted to

intervene in multiple state court proceedings in Arkansas and Louisiana to claim a portion

of the money due to the plaintiffs in those cases on grounds that the state court attorneys

utilized the leadership group’s common benefit work to prosecute their own state court

claims. The leadership group’s attempts at intervention were either abandoned or denied

by the state courts.6

Appellees subsequently filed the underlying declaratory judgment action in County

Court at Law No. Three of Nueces County, Texas, as contemplated by the GMB

settlement agreement and the qualified settlement fund agreement, against appellants

and others to construe the rights of the parties to the attorneys’ fees and expenses under

the GMB state court settlement agreement.7 The jurisdictional allegations in the

appellees’ second amended petition are as follows:

6 After this declaratory judgment action was filed, Downing and Levitt filed a putative class action

in the Eastern District of Missouri against appellees for unjust enrichment and quantum meruit, arguing that
the appellees in this case used common benefit materials and services developed by the Federal MDL
lawyers in appellees’ state courts actions but refused to pay them. The trial court dismissed the case for
lack of personal jurisdiction, but the Eighth Circuit reversed. Downing v. Goldman Phipps, PLLC, 764 F.3d
906, 908 (8th Cir. 2014), cert. denied, 135 S.Ct. 1464 (Feb. 23, 2015).

7 Plaintiffs’ second amended petition for declaratory judgment was brought against appellants and

Seeger Weiss LLP, Emerson Poynter LLP, Whatley Drake & Kallas LLP, Looper Reed & McGraw, P.C.,
and Chapman, Lewis & Swan, P.L.L.C. Defendants Whatley Drake & Kallas, LLP, Chapman Lewis & Swan,
and Seeger Weiss, LLP initially filed special appearances, but withdrew them before the hearing.
Defendants Looper Reed & McGraw, P.C. and Emerson Poynter LLP did not file special appearances.

7
 10. The amount in controversy exceeds this Court’s minimum
jurisdictional requirement. Defendants seek attorney’s fees and expenses
based on settlement monies paid, or that will be paid, for the claims of
Plaintiffs’ clients into the [qualified settlement fund], which is domiciled and
administered in Nueces County, Texas. Plaintiffs contend Defendants are
entitled to no share of the funds paid pursuant to the GMB Settlement
Agreement and seek attorney’s fees . . . .

11. Although not all Defendants are Texas residents, this Court
has both general and specific personal jurisdiction over Defendants. First,
Defendants, who are all law firms or attorneys, have had continuous and
systematic contacts with Texas, when considering the litigation arising from
[the genetically modified rice litigation] (both federal MDL and non-MDL
proceedings) and the representation of other Texas clients unrelated to the
[genetically modified] rice litigation. Second, Defendants have purposefully
availed themselves to the privilege of conducting business in Texas,
continue to conspire to commit acts affecting Texas residents, and have
committed acts outside of Texas that have reasonably foreseeable
consequences in Texas. Defendants have sufficient minimum contacts with
Texas to confer jurisdiction on Texas courts, including but not limited to:

a. Contracting for the legal representation of Texas clients;

b. Requesting the creation of a common benefit fund (related to
Plaintiffs’ Texas clients and the Texas clients of other attorneys governed
by the federal MDL proceeding) and then requesting a distribution of $72
million in attorney’s fees, some of which originated from the recoveries of
Plaintiffs’ Texas clients and other attorneys’ Texas clients governed by the
federal MDL proceeding;

c. Authorizing, employing, and/or directing agents, including, but
not limited to, other Texas attorneys, to perform legal services on behalf of
federal MDL clients, some of which are Texas clients, and then seeking
recovery of attorney’s fees performed by these Texas law firms as “common
benefit” work;

d. Maintaining a website, www.bayerricelitigation.com, to solicit
clients from Texas and other states in the federal MDL proceeding and in
the pendant non-MDL state proceedings;

e. Seeking payment from Texas attorneys, including Plaintiffs,
arising out of the representation of Texas clients who fell within and outside
the federal MDL proceeding; Defendants purposefully availed themselves
of the privilege of conducting activities within Texas and seek monetary
benefit from those activities.

8
 f. Defendants [Downing and Levitt], individually, have now in
fact filed a class action lawsuit against Plaintiffs Goldman Phipps PLLC
f/k/a Goldman, Pennebaker & Phipps, PC and Mikal C. Watts PC seeking
attorney’s fees in the United States District Court, Eastern District of
Missouri.[footnote omitted]

g. Defendants sought intervention into Plaintiffs’ cases pending
in the state courts of Arkansas and Louisiana. After seeking intervention,
Defendants threatened to sue Texas lawyers seeking an award for the
payment of attorney’s fees from Plaintiffs’ [qualified settlement fund], which
specifically sets forth that all disputes over disbursements from that
[qualified settlement fund] be adjudicated in Nueces County, Texas.

12. Further, diversity does not exist because two Plaintiffs —
Goldman Phipps PLLC and Mikal C. Watts, PC — are Texas citizens and
Defendant Looper Reed & McGraw is a Texas citizen.

Appellants filed special appearances and amended special appearances

contending that the trial court lacked jurisdiction over them, and appellees filed responses

thereto. After the parties filed additional briefing, the trial court held an evidentiary hearing

on the special appearances. At the hearing, appellants argued generally that they were

not subject to general jurisdiction or specific jurisdiction in Texas because: the genetically

modified rice litigation was litigated in Missouri; the common benefit fund was located in

Missouri; appellants were not parties to the GMB state court settlement agreement or the

qualified settlement fund, both of which were created by the unilateral actions of

appellees; appellants had not filed suit in Texas to recover any fees from the appellees

or from the qualified settlement fund; appellants were not “at home” in Texas for purposes

of general jurisdiction; appellants did not utilize any Texas agents to perform work on the

genetically modified rice MDL; the appellants’ website pertaining to the MDL was not

interactive; and any attorney-client relationships that they had with Texans pertained to

litigation outside of Texas. In contrast, appellees argued, in relevant part, that: appellants

were seeking access to attorney’s fees from the GMB state court settlement and the

9
qualified settlement fund located in Nueces County, Texas; appellants were asserting a

right to benefit from contractual agreements between Texas attorneys and Texas clients;

and appellants were awarded substantial financial gains in the form of attorney’s fees in

the federal rice MDL as a result of the claims of Texas residents.

The trial court denied the appellants’ special appearances and did not enter

findings of fact and conclusions of law. This appeal ensued. By one issue, appellants

contend that the trial court erred in denying their special appearances because: (a)

appellants’ contacts with Texas are not “constant and pervasive” so as to render them

“essentially at home” in this state, so general jurisdiction does not exist under the United

State Supreme Court’s opinion in Daimler AG v. Bauman, 134 S. Ct. 746, 187 L. Ed. 2d

624, 82 USLW 4043 (Jan. 14, 2014); (b) specific jurisdiction does not exist because

appellees’ declaratory judgment action does not arise out of, or relate to, appellants’

contacts with the State of Texas; and (c) even if appellants have sufficient minimum

contacts to support specific or general jurisdiction in Texas, the exercise of jurisdiction

here would violate the traditional notions of fair play and substantial justice.

II. STANDARD AND SCOPE OF REVIEW

Whether a trial court has personal jurisdiction over a nonresident defendant is a

question of law. Moncrief Oil Int’l Inc. v. OAO Gazprom Exp., LLC, 414 S.W.3d 142, 150

(Tex. 2013); Michiana Easy Livin’ Country, Inc. v. Holten, 168 SW.3d 777, 790–91 (Tex.

2005); BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).

Accordingly, we perform a de novo review of the trial court’s ruling on the a special

appearance. Moncrief, 414 S.W.3d at 150; Moki Mac River Expeditions v. Drugg, 221

S.W.3d 569, 574 (Tex. 2007); BMC Software, 83 SW.3d at 794. However, the trial court

10
must frequently resolve questions of fact before deciding the jurisdictional question. BMC

Software, 83 SW.3d at 794; Capital Tech. Info. Servs., Inc. v. Arias & Arias, Consultores,

270 SW.3d 741, 748 (Tex. App.—Dallas 2008, pet. denied) (en banc); Preussag

Aktiengesellschaft v. Coleman, 16 S.W.3d 110, 113 (Tex. App.—Houston [1st Dist.] 2000,

pet. dism’d w.o.j.). In this regard, the trier of fact is the sole judge of the credibility of the

witnesses and the weight to be given to their testimony. WA DC Party Shuttle, LLC v.

IGuide Tours, LLC, 406 S.W.3d 723, 729 (Tex. App.—Houston [14th Dist.] 2013, pet.

denied) (en banc); Xenos Yuen v. Fisher, 227 S.W.3d 193, 201 (Tex. App.—Houston [1st

Dist.] 2007, no pet.) Huynh v. Nguyen, 180 S.W.3d 608, 615 (Tex. App.—Houston [14th

Dist.] 2005, no pet.).

When a trial court does not issue findings of fact or conclusions of law, as in this

case, “all facts necessary to support the judgment and supported by the evidence are

implied.” BMC Software, 83 S.W.3d at 795; see Retamco Operating, Inc. v. Republic

Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009). However, because the appellate record

includes the reporter’s and clerk’s records, the trial court’s implied findings are not

conclusive and may be challenged for legal and factual sufficiency. BMC Software, 83

S.W.3d at 795. We will affirm the trial court’s ruling on any legal theory that finds support

in the record. Dukatt v. Dukatt, 355 S.W.3d 231, 237 (Tex. App.—Dallas 2011, pet.

denied).

We analyze the propriety of a special appearance on the basis of “the pleadings,

any stipulations made by and between the parties, such affidavits and attachments as

may be filed by the parties, the results of discovery processes, and any oral testimony.”

TEX. R. CIV. P. 120a(3); see Camac v. Dontos, 390 S.W.3d 398, 405 (Tex. App.—Dallas

11
2012, no pet.). On appeal, the scope of review in a special appearance case includes all

evidence in the record. Dodd v. Savino, 426 S.W.3d 275, 284 (Tex. App.—Houston [14th

Dist.] 2014, no pet.); Horowitz v. Berger, 377 S.W.3d 115, 122 (Tex. App.—Houston [14th

Dist.] 2012, no pet.). We do not address the merits of the lawsuit when we review an

order denying a special appearance. See Michiana, 168 S.W.3d at 791–92; Pulmosan

Safety Equip. Corp. v. Lamb, 273 S.W.3d 829, 839 (Tex. App.—Houston [14th Dist.]

2008, pet. denied); Petrie v. Widby, 194 S.W.3d 168, 175 n. 2 (Tex. App.—Dallas 2006,

no pet.).

III. BURDEN OF PROOF

The plaintiff and the defendant bear “shifting burdens of proof” in a challenge to

personal jurisdiction. Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex.

2010). The plaintiff bears the initial burden of pleading sufficient allegations to bring a

nonresident defendant within the provisions of the Texas long-arm statute. Moncrief, 414

S.W.3d at 149; Kelly, 301 S.W.3d at 658; Moki Mac, 221 S.W.3d at 574. When the

plaintiff’s initial burden is met, the burden shifts to the defendant who then has the burden

of negating all bases of jurisdiction alleged in the plaintiff’s petition. Kelly, 301 S.W.3d at

657–58; Moki Mac, 221 S.W.3d at 574.

The nonresident defendant can negate jurisdiction on either a factual or a legal

basis. Kelly, 301 S.W.3d at 659. To negate jurisdiction on a factual basis, the nonresident

defendant can disprove the plaintiff’s allegations by presenting evidence that it has no

contacts with Texas. Id. The plaintiff can respond with its own evidence affirming the

allegations and risks dismissal if it cannot present the trial court with evidence establishing

jurisdiction. Id. To negate jurisdiction on a legal basis, the nonresident defendant can

12
show that the evidence is legally insufficient to establish jurisdiction even if the plaintiff’s

allegations are true. Id. For example, the defendant can show that its contacts with Texas

fall short of purposeful availment, that the plaintiff’s claims do not arise from or relate to

the contacts, or that exercising jurisdiction would offend traditional notions of fair play and

substantial justice. Id.

IV. JURISDICTION

A defendant makes a special appearance for the purpose of objecting to the court’s

jurisdiction over the defendant’s person or property on the basis that the defendant or the

defendant’s property is not amenable to process in this state. See TEX. R. CIV. P. 120a(1).

The concept of personal jurisdiction flows from the Due Process Clause of the Fourteenth

Amendment to the United States Constitution and refers to the court’s power to bind a

particular person or party to a judgment. CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex.

1996); see U.S. CONST. amend. XIV, §1. Texas courts may exercise personal jurisdiction

over a nonresident if: (1) the Texas long-arm statute authorizes the exercise of

jurisdiction, and (2) the exercise of jurisdiction is consistent with federal and state

constitutional due-process guarantees. Moncrief, 414 S.W.3d at 149; Moki Mac, 221

S.W.3d at 574; see Retamco, 278 S.W.3d at 337; accord Schlobohm, 784 S.W.2d at 356.

The Texas long-arm statute provides:

In addition to other acts that may constitute doing business, a nonresident
does business in this state if the nonresident:

(1) contracts by mail or otherwise with a Texas resident and either party
is to perform the contract in whole or in part in this state;

(2) commits a tort in whole or in part in this state; or

(2) recruits Texas residents, directly or through an intermediary located
in this state, for employment inside or outside this state.

13
TEX. CIV. PRAC. & REM. CODE ANN. § 17.042 (West, Westlaw through 2015 R.S.). The

Texas long-arm statute extends Texas courts’ personal jurisdiction “as far as the federal

constitutional requirements of due process will permit.” PHC–Minden, L.P. v. Kimberly–

Clark Corp., 235 S.W.3d 163, 166 (Tex. 2007) (quoting U–Anchor Adver., Inc. v. Burt,

553 S.W.2d 760, 762 (Tex. 1977)). Thus, assuming personal jurisdiction over a

nonresident defendant comports with due process when: (1) the nonresident defendant

has minimum contacts with the forum state, and (2) asserting jurisdiction complies with

traditional notions of fair play and substantial justice. Moncrief, 414 S.W.3d at 150; accord

Retamco, 278 S.W.3d at 338; see Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

A defendant establishes minimum contacts with a forum when it “purposefully avails itself

of the privilege of conducting activities within the forum state, thus invoking the benefits

and protections of its laws.” Moncrief, 414 S.W.3d at 150. In this regard, “what the parties

thought, said, or intended is generally irrelevant to their jurisdictional contacts.” Id. at 147.

A nonresident’s contacts can give rise to general or specific personal jurisdiction.

Id.; see Zinc Nacional, S.A. v. Bouche Trucking, Inc., 308 S.W.3d 395, 397 (Tex. 2010).

General jurisdiction involves a court’s ability to exercise jurisdiction over a nonresident’s

claim regardless of whether the claim is related to the defendant’s contacts with the state.

PHC–Minden, 235 S.W.3d at 168. General jurisdiction exists when the nonresident’s

contacts with the state are continuous and systematic. Moncrief, 414 S.W.3d at 150;

Retamco, 278 S.W.3d at 338–39. In contrast, specific jurisdiction exists when the cause

of action arises from or is related to the nonresident’s purposeful activities in the state.

Moncrief, 414 S.W.3d at 150.

A. GENERAL JURISDICTION

14
 If the defendant has made continuous and systematic contacts with the forum,

general jurisdiction is established whether or not the defendant’s alleged liability arises

from those contacts. Moki Mac, 221 S.W.3d at 575; BMC Software, 83 S.W.3d at 796.

General jurisdiction is “dispute-blind,” as it permits the court to “exercise jurisdiction over

a nonresident defendant based on any claim, including claims unrelated to the

defendant’s contacts with the state.” PHC–Minden, 235 S.W.3d at 168; see Nat’l Fire Ins.

Co. of Hartford v. CE Design, Ltd., 429 S.W.3d 806, 812 (Tex. App.—Dallas 2014, no

pet.). Thus, general jurisdiction involves a “more demanding minimum contacts analysis”

than is involved in specific jurisdiction and has a “substantially higher” threshold. PHC–

Minden, 235 S.W.3d at 168; see CRS Ltd., 925 S.W.2d at 595. “Usually, ‘the defendant

must be engaged in longstanding business in the forum state, such as marketing or

shipping products, or performing services, or maintaining one or more offices there;

activities that are less extensive than that will not qualify for general in personam

jurisdiction.’” PHC–Minden, 235 S.W.3d at 168 (quoting 4 W RIGHT & MILLER, FEDERAL

PRACTICE & PROCEDURE § 1067.5).

In conducting a general-jurisdiction analysis, we are concerned with the quality

rather than the quantity of the contacts, and the defendant’s pre-suit contacts are the only

relevant contacts. See id. at 169; Am. Type Culture Collection, Inc. v. Coleman, 83

S.W.3d 801, 809–10 (Tex. 2002). In assessing the quality of the contacts, we do not view

each contact in isolation; rather, we carefully investigate, compile, sort, and analyze all

contacts to determine if together they are proof of a pattern of continuing and systematic

activity that is sufficient to support general jurisdiction. Coleman, 83 S.W.3d at 809;

15
Schlobohm, 784 S.W.2d at 359; see Parex Res., Inc. v. ERG Res., LLC, 427 S.W.3d 407,

417 (Tex. App.—Houston [14th Dist.] 2014, pet. filed).

As the United States Supreme Court recently explained, a court has general

jurisdiction when the nonresident defendant’s affiliations with the state in which suit is

brought “are so constant and pervasive” as to render the nonresident defendant

“essentially at home in the forum State.” Daimler AG, 134 S.Ct. at 751 (quoting Goodyear

Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. 2846, 2854, 2851, 2857, 180 L.Ed.2d

796 (2011)). In Daimler, the United States Supreme Court for the first time addressed

the question of whether, consistent with due process, “a foreign corporation may be

subjected to a court’s general jurisdiction based on the contacts of its in-state subsidiary.”

134 S.Ct. at 759. The Court held that, assuming without deciding that such contacts may

in some circumstances be imputed to the foreign parent, a corporation may nonetheless

be subject to general jurisdiction in a state only where its contacts are so “continuous and

systematic,” judged against the corporation’s national and global activities, that it is

“essentially at home” in that state. Id. at 761–62; see Goodyear Dunlop, 131 S.Ct. at

2851. The Court explained that a corporation is generally “at home,” and thus subject to

general jurisdiction, in a state that is the company’s formal place of incorporation or its

principal place of business, however, in “an exceptional case,” there is the “possibility”

that a corporation may be “at home” in places outside of its place of incorporation or

principal place of business. See Daimler AG, 134 S.Ct. at 751, 761 n.19. The Court,

reversing the Ninth Circuit’s determination that general jurisdiction was appropriately

exercised over a German corporation based on the California contacts of its Delaware

and New Jersey-based subsidiary, expressly warned against the “risks to international

16
comity” of an overly expansive view of general jurisdiction that is inconsistent with “the

‘fair play and substantial justice’ due process demands.” Id. at 763 (quoting Int’l Shoe,

326 U.S. at 316).

B. SPECIFIC JURISDICTION

For a Texas court to properly exercise specific jurisdiction, the defendants must

have made minimum contacts with Texas by purposefully availing themselves of the

privilege of conducting activities here, and their liability must have arisen from or be

related to those contacts. Moki Mac, 221 S.W.3d at 576. The “touchstone” of

jurisdictional due process is “purposeful availment.” Michiana, 168 S.W.3d at 784. The

nonresident defendant must take action that is purposefully directed at the forum state.

Moki Mac, 221 S.W.3d at 577. To determine whether the nonresident defendant

purposefully directed action toward Texas, we examine the nonresident defendant’s

conduct indicating an intent or purpose to serve the Texas market. Id.

We apply a three-factor test to determine whether a nonresident purposefully

availed itself of the privilege of conducting activities in Texas. Moncrief, 414 S.W.3d at

151. First, we consider only the specific defendant’s contacts with the forum. Id. In this

analysis, the unilateral activity of another party or a third person is not relevant. Id.

Second, the contacts relied upon must be purposeful rather than random, fortuitous, or

attenuated. Id. Third, the nonresident defendant must seek some benefit, advantage, or

profit by availing itself of the jurisdiction. Id. In this analysis, we do not assess the quantity

of the contacts, but rather their nature and quality. Id. “[T]he purposeful availment

analysis seeks to determine whether a nonresident’s conduct and connection to a forum

17
are such that it could anticipate being haled into court there.” Id. at 152; see BMC

Software, 83 S.W.3d at 798.

To support the exercise of specific jurisdiction, the plaintiff’s causes of action must

arise from or relate to the nonresident defendant’s forum contacts. Moki Mac, 221 S.W.3d

at 576. This means that a substantial connection must exist between the nonresident

defendant’s forum contacts and the operative facts of the litigation. Id. at 585. The

operative facts are those facts that would be the focus of a trial on the merits. Id. at 575;

see also Kaye/Bassman Int’l Corp. v. Dhanuka, 418 S.W.3d 352, 357 (Tex. App.—Dallas

2013, no pet.); Pulmosan Safety, 273 S.W.3d at 839. “But for causation” alone is not

sufficient to establish the requisite connection between the forum contacts and the

operative facts of the litigation. Moncrief, 414 S.W.3d at 157. Whether a plaintiff’s claims

arise from or relate to the nonresident defendant’s Texas contacts is a question of law

unaffected by the operation of implied findings of relevant fact necessary to support the

special appearance ruling. Id. at 150 n.4.

C. JURISDICTION OVER NON-RESIDENT ATTORNEYS

We begin with a brief review of the law applicable to jurisdiction over nonresident

attorneys. As expected, this law is generally consistent with the foregoing fundamental

tenets regarding jurisdiction. For instance, a nonresident attorney who has only sporadic

contacts with Texas will not be subject to general jurisdiction in Texas. See Myers v.

Emery, 697 S.W.2d 26, 31–32 (Tex. App.—Dallas 1985, no writ); see also Fowler v.

Litman, No. 05-07-01056-CV, 2008 WL 2815086, at *3 (Tex. App.—Dallas Jul. 23, 2008,

pet. denied) (mem. op.); Geo-Chevron Ortiz Ranch #2 v. Woodworth, No. 04-06-00412-

CV, 2007 WL 671340, at *5 (Tex. App.—San Antonio Mar. 7, 2007, pet. denied) (mem.

18
op.); Daniels v. Blodgett, No. 05-04-00626-CV, 2005 WL 1120010, at *3 (Tex. App.—

Dallas May 12, 2005, no pet.) (mem. op). However, a nonresident attorney’s systematic

representation of Texas residents may suffice to establish general jurisdiction over a

nonresident attorney. See Nikolai v. Strate, 922 S.W.2d 229 (Tex. App.—Fort Worth

1996, writ denied).

In a specific jurisdiction analysis, a nonresident attorney’s act of entering into an

attorney-client relationship with a Texas resident, standing alone, does not provide the

minimum contacts necessary to support personal jurisdiction over the nonresident

attorney. Gordon & Doner, P.A. v. Joros, 287 S.W.3d 325, 335 (Tex. App.—Fort Worth

2009, no pet.); Myers, 697 S.W.2d at 32; see also Geo-Chevron, 2007 WL 671340, at *3.

Moreover, neither the mere existence of an attorney-client relationship between a Texas

resident and a nonresident attorney, nor the routine correspondence and interactions

attendant to that relationship, are sufficient to confer specific personal jurisdiction over a

nonresident attorney. Markette v. X-Ray X-Press Corp., 240 S.W.3d 464, 468–69 (Tex.

App.—Houston [14th Dist.] 2007, no pet.); see also Proskauer Rose LLP v. Pelican

Trading, Inc., No. 14–08–00283–CV, 2009 WL 242993, at *4 (Tex. App.—Houston [14th

Dist.] Feb. 3, 2009, no pet.) (mem. op.). Similarly, a nonresident attorney’s act of

contracting with and accepting payment from Texas residents for services performed

elsewhere does not support specific jurisdiction over a nonresident attorney. Weldon-

Franke v. Fisher, 237 S.W.3d 789, 796 (Tex. App.—Houston [14th Dist.] 2007, no pet.);

see Star Tech., Inc. v. Tultex Corp., 844 F.Supp. 295 (N.D. Tex. 1993). As stated by one

of our sister appellate courts, the “mere act of contracting with a Texas resident does not

give rise to specific jurisdiction in Texas: performance must be due in Texas.” Lisitsa v.

19
Flit, 419 S.W.3d 672, 680 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); see

Markette, 240 S.W.3d at 464; see also Wilson v. Baker, No. 03-10-00507-CV, 2011 WL

6938523, at *5 (Tex. App.—Austin Dec. 29, 2011, no pet.) (mem. op.) (holding that Texas

court possessed specific jurisdiction over nonresident attorney who did not pay fees

where attorney “purposefully initiated contact with Texas residents intending that they

would perform work in Texas”). For specific jurisdiction to attach, the claims in the lawsuit

must arise from or relate to the nonresident lawyer’s purposeful contacts with Texas.

Weldon-Franke, 237 S.W.3d at 797; Bergenholtz v. Cannata, 200 S.W.3d 287, 293–97

(Tex. App.—Dallas 2006, no pet.); Klenk v. Bustamente, 993 S.W.2d 677, 682 (Tex.

App.—San Antonio 1998, no pet.), disapproved on other grounds, BMC Software, 83

S.W.3d at 794; see Markette, 240 S.W.3d at 468–69. Generally, in order to show that

nonresident attorneys have engaged in purposeful contact with Texas, the record must

indicate that the nonresident attorneys have sought clients in Texas or otherwise have

affirmatively promoted their businesses in Texas. See, e.g., Bergenholtz, 200 S.W.3d at

293–97; Klenk, 993 S.W.2d at 682; see also Katz v. Winston & Cashett, 05-10-01535-

CV, 2011 WL 3435789, at *3 (Tex. App.—Dallas Aug. 5, 2011, no pet.) (mem. op.).

V. FACTS

The appellants filed separate special appearances and amended special

appearances. When there are multiple defendants, each defendant’s contacts with the

forum must be assessed separately. M & F Worldwide Corp. v. Pepsi-Cola Metro. Bottling

Co., 453 S.W.3d 492, 502 (Tex. App.—Houston [14th Dist.] 2014, pet. filed); Citrin

Holdings, LLC v. Minnis, 305 S.W.3d 269, 279 (Tex. App.—Houston [14th Dist.] 2009, no

pet.) (citing Calder v. Jones, 465 U.S. 783, 790 (1984)). We briefly summarize the facts

20
applicable to all appellants and the operative facts of the underlying proceeding, then

review the facts for each appellant individually.

The genetically modified rice MDL was consolidated in federal court in the United

States District Court for the Eastern District of Missouri and consisted of claims against

Bayer from the five rice-growing states: Texas, Arkansas, Missouri, Louisiana, and

Mississippi. The record fails to contain the total number of plaintiffs in the MDL, the

number of Texas residents in the MDL, or the number of Texas state cases that were filed

against Bayer. For instance, the estimated number of plaintiffs in the MDL varies in the

record from five to eleven thousand, and there appears to have been approximately three

thousand state court plaintiffs.8 Appellants generally disclaimed knowledge of the number

of Texas residents included in the MDL. Downing testified that he thought “there were

hundreds of Texas farmers included in the federal MDL.” Isquith agreed that there were

a “substantial” number of Texas growers that were part of the MDL litigation. Arsenault

testified that “presumably” there were “many” Texas rice growers in the MDL.

Downing and Levitt were appointed by the MDL court to be the two co-lead counsel

in the MDL and the remaining appellants were members of the court-appointed plaintiffs’

executive committee, which directed the litigation on behalf of the plaintiffs and performed

work that benefitted all plaintiffs in the MDL. Co-lead counsel and the plaintiffs’ executive

committee comprised the leadership group or common benefit attorneys for the MDL.

Appellants were thus charged with the responsibility of prosecuting the case for the

common benefit of all of the litigants within the MDL. Appellants testified that they

8 For instance, Judge Perry’s February 24, 2010 memorandum and order regarding appellants’
motion to create a common benefit trust fund recites that, at that time, there were approximately seven
thousand plaintiffs included in the MDL.

21
intended both the MDL litigants and the state court litigants to benefit by their work as the

leadership group. In the MDL, Downing and the other appellants: (1) engaged in

“substantial factual investigation and legal research under the laws of [the five main rice-

producing states, including Texas] in connection with drafting the master complaint; (2)

researched “elements and proof required for all claims asserted” under the laws of the

five states, including related issues such as the economic loss doctrine, intervening and

superseding cause, and vicarious liability; (3) “engaged in . . . briefing regarding the

summary judgment and Daubert9 motions under the laws of Arkansas, Mississippi,

Louisiana, and Texas”; and (4) “fully briefed all summary judgment issues under Texas

law” for the Texas bellwether trial. As leadership counsel, appellants engaged in

extensive pretrial activity for and the presentation of the four bellwether trials in Missouri,

including the final bellwether case “involving three Texas family farming operations.”

Appellants generally testified that the majority of their work on the MDL occurred

outside of Texas, although, as discussed in more detail herein, each had some direct

contact with Texas in conjunction with their work on the MDL.

Downing and Levitt testified that as co-lead counsel, they were authorized by the

MDL court to prosecute the case and to enlist the services of others to do so. Appellants

utilized the services of Looper, Reed & McGraw, P.C. (“Looper Reed”), a Texas law firm,

to assist in prosecuting the genetically modified rice MDL. Looper Reed was

independently appointed by the MDL court to serve on the plaintiffs’ executive committee,

and was “not a part of the slate” of lawyers that appellants proposed for inclusion in the

leadership group. Downing and Levitt testified that they “assigned” common benefit work

9 See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)(regarding the admissibility of
expert testimony).

22
to Looper Reed, but they did not “control[] the means and details of how Looper Reed

performed the assigned tasks.” Downing and Levitt specifically testified that they “did not

actively seek to work” with Chaney or Looper Reed and that the relationship existed

“solely by virtue of the MDL court’s independent appointment.” Downing testified that he

and Levitt coordinated the MDL work that they directed Looper Reed to perform. Levitt

testified that he and Downing “determined who was going to work on what in somewhat

of a collective matter sometimes,” and “[p]erhaps on occasion,” that included designating

work to be performed by Looper Reed. With regard to the genetically modified rice MDL,

Downing testified that he had “substantial” communications with Looper Reed, Levitt

acknowledged that he had hundreds of communications with Looper Reed, and Isquith

and Arsenault testified their firms each had more than a thousand communications with

Looper Reed. With the exception of in-person meetings of the executive committee that

were held in St. Louis, Missouri, all of appellants’ communications with Looper Reed took

place by telephone or email.

Appellants created and utilized a website in connection with the rice MDL:

www.bayerricelitigation.com. Isquith testified that this website “was informational in

nature and employed as a database for existing clients and their attorneys about the

status of discovery and other pre-trial matters in the Federal Rice Litigation.” The website

was maintained by WHAFH. Downing and Levitt testified that the website did not provide

an opportunity for users to enter into contracts and it was not used to solicit clients.

Downing and Levitt testified that the website instead “was merely used as a vehicle to

provide information about the status of discovery and other pre-trial matters in the federal

MDL litigation and to provide the contact information of certain members of the MDL

23
Leadership Group, including [ourselves].” Levitt testified that, “as a service to everybody,”

they kept “more substantial case-related [electronic filings] uploaded as PDFs on the site”

so individuals could “download some of the key MDL documents.”

Bayer agreed to enter a global settlement of all claims against it in the MDL and in

state court. While the settlement agreements in the MDL and state court cases were

separate, the two agreements were contingent on each other insofar as Bayer refused to

settle the claims against it in a piecemeal fashion. Each of the appellants testified that

they were not parties to the qualified settlement fund that was created in accordance with

the state court GMB settlement agreement, which was made the basis of this lawsuit, and

they did not consent to the forum-selection clause in the documents establishing the

qualified settlement fund. According to Watts, however, while appellants were not

signatories to the GMB settlement, they were “involved.” Watts testified that the GMB

state court settlement was negotiated first, and one of Bayer’s requirements for that

settlement was a settlement for the MDL claims. “And so the different parties had to, in

effect, approve the other settlements because there was money moving around between

the two.” Watts testified that appellants “got to be the signatories on the MDL settlement”

and “[w]e got to be the signatories on the GMB settlement.” Watts testified that “there

was plenty [of] back and forth about what should be in each after the original deal was

done.”

A. DOWNING AND GRG

The special appearances filed by Downing and GRG are largely identical and are

premised on the same facts and arguments.

24
 By separate affidavits supporting the special appearances, Downing testified that

he is currently licensed to practice law in the state of Missouri. He is a shareholder and

vice president of GRG. Downing resides and works in Missouri. Neither he nor GRG

maintains an office of any type in Texas. Neither Downing nor any of the eleven other

attorneys at GRG have a license to practice law in Texas, and there are no GRG

employees who work or reside in Texas. Downing testified that neither he nor GRG holds

business meetings in Texas, stores any records in Texas, or deposits funds into Texas

banks.

Downing testified that the vast majority of his work and that of other GRG attorneys

and employees in the genetically modified rice MDL, common benefit work or otherwise,

was performed in St. Louis, Missouri. Downing testified that work performed outside of

St. Louis by Downing or GRG employees included depositions, but none of those

depositions took place in Texas.10

GRG attorneys, including Downing, represented approximately nineteen

individuals or entities with Texas mailing addresses in the MDL. According to Downing,

“all of the claims related to farming operations in Arkansas and/or Missouri and [did not]

relate to any Texas farming operations.” Downing testified that none of the work that he

or GRG performed regarding these attorney-client relationships occurred in Texas.

Downing testified that “many” of these individuals and entities were “landlords for farming

operations” and “a number [were] related.” Downing testified that the claims of these

clients represented a fraction of one percent of all settlement claims by GRG clients, and

a minimal portion of the firm’s clients, acres and recoveries in the MDL.

10 We note that the record reflects that Bayer’s field testing agents were deposed in various
locations, including Texas.

25
 Downing testified that he “assisted in the bellwether trial of Texas farmers’ cases”

in the MDL court in St. Louis, Missouri; however, each of the Texas farmers in that trial

was directly represented by other counsel and all of his services in that trial were

conducted in Missouri. By deposition, Downing testified that they had “no representation

agreement with any of those growers, and that “[o]ur work in that trial was as a common

benefit attorney as co-lead counsel part of the leadership. It was a [b]ellwether trial. So

I don’t think it’s—it’s accurate to state that we represented, with an employment

agreement, those Texas farmers.”

Downing had a contractual agreement to assist Riviana Foods, Inc. (“Riviana”), a

company headquartered in Texas, in presenting its bellwether trial for non-producers in

the MDL in St. Louis, Missouri.11 According to Downing, under the agreement, any

services to be performed by Downing or any other GRG attorneys would have been

performed in St. Louis, Missouri. No GRG attorney, including Downing, traveled to Texas

in connection with their representation of Riviana. Riviana settled its claims with Bayer

prior to the bellwether trial, and thus Downing testified that “the agreement [with Riviana]

was never effectuated.”

Downing testified that, other than the attorney-client relationships previously

mentioned, he has not contracted to represent any Texas residents in the last five years.

Downing testified that neither he nor any other GRG attorney has filed any lawsuits in

state or federal court in Texas during the last five years. Downing testified that he has

traveled to Texas in connection with litigation twice in the last five years, and five of the

eleven other GRG attorneys have traveled to Texas in connection with litigation in the

11 Riviana processes and distributes branded and private label rice products.

26
past five years. With the exception of one of Downing’s trips, all of these trips were made

in conjunction with expert witness depositions in cases having no connection with the

MDL.

Downing testified that over the course of the MDL, he made “one single trip to

Texas related to the litigation, solely in my capacity as court-appointed co-lead counsel

in the MDL, to discuss settlement issues.” Downing testified that, except for this single

trip, none of the GRG attorneys or employees traveled to or performed any legal work in

Texas in connection with the MDL. Downing testified that he made the trip to Texas to

meet with Watts at his home in San Antonio, Texas to discuss “settlement issues” that

were “broader” than merely settling the claims against Bayer. Watts testified that

Downing requested to meet with him to “try to negotiate a deal” regarding settlement with

Bayer and also to discuss appellants’ demand for attorney’s fees from appellees’ state

court cases. According to Downing, in order for Bayer to settle the claims against it in the

MDL or state court proceedings, eighty-five percent of the acreage affected by Bayer had

to agree to participate in a global settlement. There were Texas residents in the MDL

settlement and in the state court GMB settlement, so Downing acknowledged that the

settlement discussions addressed, at least in part, settlement of the claims that the Texas

residents were bringing against Bayer. Downing testified that, generally speaking, he had

multiple conversations with appellees Phipps and Watts and stated that “generally

speaking, the nature of the communications with those two would have been global

settlement issues, and common benefit fees.”

As co-lead counsel in the MDL, Downing performed services that were intended

to benefit all persons or entities who had suffered a loss. Downing testified that he and

27
the other common benefit attorneys wanted all the rice farmers to participate in receiving

compensation from Bayer for the losses they suffered, whether they were litigants in the

MDL or not. Downing stated that appellants intended to benefit both the MDL and the

state court litigants.

Downing testified that there was “[n]o question” that the state court litigants

benefited from appellants’ work. Downing contended that “we do believe that Texas

growers benefited tremendously” by the work that appellants performed as reflected in

their request for payment of attorney’s fees from appellants. Downing testified that he

intended to be paid for his work in the rice litigation and that all the people who benefited

from his work should pay for his services. When Downing was asked if those who

benefited from his work included Texas residents, he responded that appellees “certainly

[were] benefited by our work and [their] clients were, but the obligation to pay, I think,

rested primarily, if not exclusively, with [appellees] because of the nature of [their] fee

contract[s] with [their] clients. We have not sued [their] clients.”

As co-lead counsel, Downing testified that the MDL attorneys shared discovery

with the attorneys for the other MDL litigants; however, he was not sure if they shared

information with state court attorneys other than those that had MDL cases. Downing

testified that appellants shared discovery with appellees Watts and Phipps, who had both

federal MDL and state court clients. Appellants further had joint prosecution agreements

with some state court litigants in which appellants agreed to make common benefit

materials and work product available to the state court litigants in exchange for their

agreement to pay common benefit fees to appellants. Downing testified that appellants

obtained an amendment to a protective order issued in the genetically modified rice MDL

28
in order to allow certain state court litigants to benefit from the documents produced in

the MDL. Downing reiterated that appellants expected to be paid for their common benefit

work in the MDL.

Downing testified that the MDL settlement resulted in a common benefit fund, and

that appellants sought and received attorney’s fees as a common benefit payment from

the fund. Texas MDL clients contributed to the MDL settlement fund, so Downing

acknowledged that appellants have received some compensation from the Texas growers

in the MDL who contributed to the common benefit fund. However, Downing contended

that the monies that appellants received as payment from the common benefit fund did

not fully compensate appellants for their work in the genetically modified rice MDL.

Downing testified that appellants’ common benefit work benefited others, including

appellees, who had not paid them for that work.

B. LEVITT

By affidavit, Levitt testified that he is an attorney currently licensed in good standing

to practice law in the states of Illinois and New York. He resigned his partnership with

WHAFH in January 2013, and is currently a director of Grant & Eisenhofer, P.A. He works

in the firm’s Chicago, Illinois, office. When he was at WHAFH, his office was also in

Chicago. Neither WHAFH nor his current firm maintain an office in Texas. Levitt testified

that he has “never practiced law in the State of Texas” and he is not a member of the

State Bar of Texas. Levitt testified that he works and resides in Chicago and has never

resided in the State of Texas. He testified that he does not own any real property in the

State of Texas, has not deposited any funds in any Texas bank, and does not “travel to

Texas for personal or recreational purposes.”

29
 Levitt specializes in complex commercial litigation and class action litigation and

has sought certification for nation-wide, state-wide, and multi-state class action cases.

According to Levitt, he has had certified a “substantial number” in the “mid to high double

digits” of nation-wide class actions for the purposes of litigation or settlement. Levitt

acknowledged that his certified class actions have included Texas residents. He testified

that he has had approximately six state-wide Texas class actions, although none of those

cases were filed in Texas. Levitt did not recall having a separate Texas class certified for

litigation or settlement.

Levitt testified that he represented two clients in the genetically modified rice MDL

who were residents of Texas, however, “both of those clients’ claims were filed directly

with the United States District Court for the Eastern District of Missouri.” Levitt testified

that the “only work I performed in Texas in connection with the Genetically Modified Rice

Litigation was to travel to defend the depositions of my two clients who resided in Texas,”

and that “[a]ll other work I performed in the Genetically Modified Rice Litigation for those

clients, and non-Texas clients, was done outside of the State of Texas.” Levitt testified

that work for these clients was principally performed in his Chicago office and in St. Louis,

Missouri.

Levitt had attorney-client agreements with Texas residents and farmers, Lee and

Robbie Hafernick and Bob Shoemate, who served as the named litigants in the Texas

bellwether trial, and he testified that he “personally represented” the plaintiffs in that case.

According to Levitt, he had an attorney-client relationship with the Texas farmers and also

appeared as lead trial counsel in that case in his capacity as MDL co-lead counsel acting

30
for all of the MDL litigants. Levitt acknowledged that it was “fair” to state that he was

serving in both capacities in that bellwether case.

Levitt testified that the common benefit work that he performed was intended to

benefit all rice farmers affected by the genetically modified rice developed by Bayer. He

knew that Texas was one of the five largest long-grain rice producing states and agreed

that “absolutely” a number of Texas growers benefited from the services he provided as

part of the leadership group in the MDL. He testified that he had a “very small number of

Texas clients” in the rice litigation. Approximately ninety percent of all rice farmers ended

up participating in the settlement, and a proportionate “relatively substantial” number of

Texas rice farmers filed claims in the settlement. According to Levitt’s resume, he

obtained settlements exceeding $900 million on behalf of long grain rice producers and

others who suffered losses resulting from contamination of the U.S. rice supply. In his

deposition, Levitt explained that this sum included all the money paid by Bayer to settle

all the rice cases, including the state court GMB settlement with appellees.

Levitt testified that he is admitted to practice in the United States District Courts for

the Eastern, Northern, and Southern Districts of Texas. He has previously filed a lawsuit

in the Eastern District of Texas. During the past five years, he has represented “only five

Texas residents,” and during his legal career, he has traveled to Texas “on only four

occasions to meet with my clients, including my travel to Texas to meet with my clients in

the Genetically Modified Rice Litigation.” He traveled to Texas to defend his Texas clients

at their depositions. He testified that his most recent travel to Texas was in 2007.

Levitt testified that he has had thousands of communications with Texas attorneys

in connection with the rice litigation. He has had hundreds of communications with Watts

31
and Phipps on several different topics, including common benefit issues relating to the

litigation and settlement with Bayer. The ultimate result was that the federal MDL and the

state cases were settled at once. Levitt testified that Bayer wanted to buy “global [peace].”

Levitt testified that he believed that appellants were owed a common benefit payment on

the state court cases that Phipps and others filed. He indicated that appellants were

going to pursue “whatever remedies we were going to seek against Mr. Phipps and others

through different means.”

C. WHAFH

The WHAFH special appearance was supported by the affidavit of Fred T. Isquith.

According to his affidavit, Isquith is a licensed attorney in New York and is a member of

WHAFH. According to Isquith, WHAFH is not a resident of the State of Texas, but is

organized under Illinois law and has its principal place of business in Illinois. WHAFH

maintains no general business practice in Texas, although Isquith conceded that WHAFH

has had attorney-client relationships with three or four Texas residents in the past few

years. WHAFH has no office, bank accounts, or records in Texas, none of its partners or

other lawyers are admitted to practice in Texas, and it has not held any partner meetings

in Texas. WHAFH does not have a registered agent for service of process in Texas, does

not own any real or personal property in Texas, and does not pay taxes to any local or

state taxing authorities within Texas.

Because WHAFH “maintains a large nation-wide class action practice and thus

has clients who reside in most, if not all, fifty states,” it has “a number of clients who are

Texas residents.” However, according to Isquith, WHAFH has not filed any cases in

Texas courts in the past five years, and all work that it does, or has done, on behalf of

32
any Texas resident was performed in connection with out-of-state litigation and has

“rarely” involved travel by WHAFH attorneys to Texas. Isquith testified that members of

firm have physically been present in Texas on business-related matters nine or ten times

in the past six years.

Isquith testified that WHAFH had two Texas clients in the MDL litigation.

Specifically, Isquith testified that WHAFH had a direct contractual relationship with the

plaintiffs in the Texas bellwether case that was partially tried; however, Isquith had not

been able to find the written employment contract with those clients. According to Isquith,

“[n]early all of the common benefit work that [WHAFH] performed in the Federal Rice

Litigation, including for the benefit of its two Texas resident clients, was performed outside

the State of Texas.” Isquith testified that “over the course of the five year litigation,

[WHAFH] attorneys travelled to Texas on only five occasions,” and “[a]ll communications

with Texas-based counsel on the Plaintiffs’ Executive Committee occurred at in-person

meetings in St. Louis, by email, or by conference or telephone call.” Isquith believed that

members of the firm made four trips to Texas pertaining to the rice litigation. According

to Isquith, these trips were made for the purpose of appearing for the depositions of the

firm’s clients. Isquith testified that Levitt made one trip to Texas to meet another attorney

who introduced Levitt to a number of rice farmers who were considering hiring WHAFH

to represent them in the rice litigation. Isquith testified that the firm represented a

“relatively substantial” number of Texas rice farmers who filed claims in the settlement

with Bayer.

Isquith agreed that Texas residents contributed to the common benefit fund in the

MDL litigation through the settlement with Bayer. WHAFH received some portion of those

33
proceeds. Isquith testified that WHAFH expected payment for its services in the

genetically modified rice litigation through the common benefit fund, or to the extent it

represented rice clients directly, through any recovery that its direct clients would have

received. Isquith further asserted that appellants intended to benefit all rice litigants and

intended to be compensated by all rice litigants. Isquith believed that he provided legal

services for Texas residents or Texas attorneys for which he felt entitled to compensation

in the rice litigation. He acknowledged that WHAFH had hundreds of communications

with Texas attorneys Watts and Phipps with regard to the rice litigation.

D. NBA

NBA filed an amended special appearance supported by the affidavit of Richard J.

Arsenault. Arsenault has been a member of NBA since approximately 1981. Arsenault

testified that he is an attorney-at-law admitted to practice in Louisiana since 1980. He

has also been admitted to practice in Texas since 1992, Colorado since 1991, and

Washington D.C. since 1991. He is licensed in the Eastern, Southern, and Northern

Districts of Texas. His curriculum vitae indicates he has belonged to the Texas Trial

Lawyers Association. Arsenault testified that he became licensed in Texas because he

thought it would be assistance to have additional licenses in complex litigation and mass

torts on a national level.

Arsenault testified that NBA is not a resident of Texas, but is organized under

Louisiana law and has its principal place of business in Louisiana. NBA does not have a

general business practice in the State of Texas, does not have an office or bank account

in Texas, and stores no records in Texas. Three of its lawyers are admitted to practice in

Texas, but NBA has not held any firm meetings in Texas. None of NBA’s employees

34
reside or work in Texas. NBA does not maintain a registered agent for service of process

in Texas, does not own any real or personal property in Texas, and does not pay taxes

to any local or state taxing authorities within Texas.

Arsenault testified that NBA represented one of the Texas bellwether plaintiffs,

Jamie Gentz, however, “this representation was limited to fewer than four . . . visits to the

State of Texas, three of which were to defend the witness during depositions taken by

defense counsel.” According to Arsenault, “[n]early all” of the common benefit work that

NBA performed on behalf of Texas resident plaintiffs in the genetically modified rice MDL

was performed outside of Texas, and NBA attorneys travelled “predominantly” to North

Carolina, Louisiana, Missouri and Arkansas in connection with that litigation.

Arsenault testified that he actively participated in the trial of the bellwether case

featuring Texas rice farmers. He testified that he did not have a contract with the three

Texas rice growers he was representing in that case, but he conceded that he had

“whatever relationship someone in a leadership capacity has in an MDL to all plaintiffs in

that MDL.” Arsenault testified that the Texas farmers were directly represented by other

attorneys, however, he helped protect their rights as an attorney, and he sought and

received compensation for those services in the MDL.

Arsenault also testified that NBA had an attorney-client relationship with

“approximately” eighteen Texas residents with claims in the genetically modified rice

MDL. Arsenault testified that these clients “were all retained post-settlement and were all

non-farmer landowners for Louisiana farmer clients.” Arsenault testified that NBA

assisted these clients in preparing the necessary claim forms to receive settlement

benefits from Bayer and that NBA charged these Texas clients for its services.

35
 In terms of other litigation, Arsenault testified that NBA has clients who are Texas

residents, however, he stated “that is only because it maintains a nation-wide mass tort

and class action practice and thus has clients who reside in most, if not all, fifty states.”

Texas resident clients whom NBA currently represents primarily have, or have had,

federal multidistrict litigation or mass tort litigation pending in other states. In his

deposition testimony, Arsenault stated that he had been involved in other matters

involving Texas litigation, and stated that he recalled three other instances where he had

Texas clients or cases that were filed in Texas. He recalled trying one case in Beaumont,

but did not recall participating in any other Texas cases.

Arsenault estimated that fifty percent of NBA’s work involves traditional litigation

and fifty percent consists of class actions and mass tort cases. Many of the class action

cases and mass tort cases are nation-wide in scope and include Texas. Arsenault has

served on twenty national leadership committees in mass tort or multidistrict litigation

cases. Arsenault conceded that he has two multidistrict litigation matters pending in

Texas, but Arsenault testified that he did not select Texas as the venue for these cases

and instead, the Judicial Panel on Multidistrict Litigation decided where the cases would

be tried. Arsenault is a member of the leadership committee in the multidistrict litigation

matter arising from the Pinnacle hip implant, In re DePuy Orthopaedics, Inc., in the United

States District Court for the Northern District of Texas, and has filed dozens of related-

case pleadings in that case.

Arsenault testified that attorneys who serve on leadership committees in

multidistrict litigation cases are charged with the responsibility of prosecuting the case for

the common benefit of all the litigants in the litigation, and “they have a fiduciary obligation

36
to all plaintiffs that are in the case,” even where they are represented by other lawyers,

and “the fiduciary obligation would extend to the lawyers in those instances.”

Arsenault testified that the work he and NBA performed in the genetically modified

rice MDL benefited the litigants in the MDL action as well as similarly situated claimants

who brought their cases in state court rather than the MDL. Arsenault intended his

services to benefit all state court litigants who were not part of the MDL and expected to

be compensated for his services. Arsenault testified that under the common benefit

doctrine, anyone who is the beneficiary of common benefit work has a corresponding

obligation to compensate those that provided the common benefit services. Arsenault

testified that appellants did not prohibit anyone from obtaining the common benefit work

that appellants provided, and that state court litigants obtained and utilized appellants’

common benefit work. Arsenault testified that it was the appellants’ intention that all of

the rice litigants would be able to obtain and use the common benefit work. Arsenault

acknowledged that it was beneficial to the federal MDL litigants if state court litigants were

successful in prosecuting their separate claims.

Arsenault testified that NBA had a website with a “landing page,” or “satellite

website” that dealt specifically with the genetically modified rice MDL. The website did

not contain a “pop up” allowing real-time communication, but contained a “block” that

allowed individuals to communicate with the firm to seek information about the litigation.

Arsenault agreed that the website was “all part of a marketing effort both to distribute

information about the litigation but also to attract rice litigants.”

VI. ANALYSIS

37
 We begin our analysis with specific jurisdiction. In this case, all claims against

appellants arise from the same forum contacts, so we do not perform a separate claim-

by-claim analysis. See Moncrief, 414 S.W.3d at 151. In a specific jurisdiction analysis,

we focus on the relationship among the appellants, the forum, and the litigation, and

determine whether a substantial connection exists between appellants’ contacts with

Texas and the operative facts of the litigation. Kelly, 301 S.W.3d at 658; Moki Mac, 221

S.W.3d at 575–76. We consider the “quality and nature of [these] contacts, rather than

their number.” Am. Type Culture, 83 S.W.3d at 806. And, we must conclude that

appellants’ purposeful conduct, rather than another’s, caused their contact with Texas.

See Michiana, 168 S.W.3d at 784. A substantial connection can result, however, from a

single purposeful act. Moncrief, 414 S.W.3d at 151–52.

A. CONTACTS

With these principles in mind, we turn to the allegations in this case and appellants’

contacts with Texas. To the extent possible, we have grouped the jurisdictional facts into

categories.

1. Attorney Client Representation

Appellants contend that their attorney-client contracts with Texas residents, alone,

are not sufficient to establish the minimum contacts necessary to support the exercise of

personal jurisdiction over them. See Gordon & Doner, P.A., 287 S.W.3d at 335; Myers,

697 S.W.2d at 32. Appellants also argue that their performance under the contracts and

as leadership counsel generally involved the provision of their services in Missouri, rather

than in Texas, and thus jurisdiction is not proper in Texas. See Lisitsa, 419 S.W.3d at

680; Weldon-Franke, 237 S.W.3d at 796.

38
 Appellants directly represented Texas residents and Texas landowners in the

MDL. Further, and more significantly, appellants sought out and obtained roles as co-

lead counsel or members of the plaintiffs’ executive committee for all plaintiffs in the rice

litigation MDL. The rice litigation MDL arose from Texas as one of the five main rice-

producing states. There were hundreds, if not thousands, of Texas residents or

landowners involved in the MDL. The MDL alleged damage to Texas property, Texas

businesses, and Texas citizens. Appellants drafted the pleadings in the MDL, in part, on

Texas law. Texas citizens served as the plaintiffs in one of the bellwether trials.

As leadership counsel, appellants testified that they felt that they had obligations

to all MDL participants and even to their attorneys.12 Moreover, all appellants intended

their work in the MDL to benefit all state-court litigants, including Texans. Appellants did

not engage in sporadic, random representation of Texas clients, instead, they sought out

and chose to accept leadership roles on the executive committee of the MDL and thereby

systematically undertook to represent hundreds of Texas clients in the MDL, intending

both Texas state court litigants and their attorneys to rely on and benefit from that

representation. Cf. Nikolai, 922 S.W.2d at 229.

Moreover, while the appellants’ work on the rice MDL occurred mainly in Missouri

rather than Texas, we do not consider this factor dispositive given the span and breadth

of the litigation’s nexus with Texas. The Texas Supreme Court has found jurisdiction over

nonresidents with no physical ties to Texas when a nonresident attended two Texas

12 The attorney-client relationship gives rise to a fiduciary relationship as a matter of law. See
Meyer v. Cathey, 167 S.W.3d 327, 330–31 (Tex. 2005) (per curiam); Johnson v. Brewer & Pritchard, P.C.,
73 S.W.3d 193, 199 (Tex. 2002). Whether or not there is a direct or formal attorney-client relationship
between plaintiffs in an MDL and the leadership group of attorneys representing the plaintiffs in the MDL,
both the leadership group and the individually retained plaintiffs’ attorneys “necessarily” owe a fiduciary
obligation to the plaintiffs in the MDL. In re San Juan Dupont Plaza Hotel Fire Litig., 111 F.3d 220, 234 (1st
Cir. 1997).

39
meetings with a Texas corporation and accepted alleged trade secrets created in Texas

regarding a potential joint venture in Texas with the Texas corporation, see Moncrief, 414

S.W.3d at 154; when an out-of-state contract was formed “for the sole purpose of building

a hotel in Texas,” Zac Smith & Co., Inc. v. Otis Elevator Co., 734 S.W.2d 662, 665–66

(Tex. 1987); and when enrollment for an out-of-state school was executed in Arizona but

was “actively and successfully solicited” in Texas. Siskind v. Villa Found. for Educ., Inc.,

642 S.W.2d 434, 437 (Tex.1982); see also Michiana, 168 S.W.3d at 789–90 (discussing

cases finding specific jurisdiction when forum contact “was aimed at getting extensive

business in or from the forum state”). Appellants chose to undertake leadership roles in

representing hundreds of Texans in the rice litigation, knowing that these clients were

located in Texas and that the case involved damage to Texas property. Overall, we

consider that appellants’ representation of Texans in the MDL, both directly and as

members of the leadership group, supports jurisdiction in Texas.

2. Communications and Travel

Appellants contend that their visits to Texas were nonexistent or sporadic, and that

the routine correspondence and interactions attendant to appellants’ relationships with

their Texas clients were insufficient to confer specific personal jurisdiction over appellants.

See Markette, 240 S.W.3d at 464. It is not the quantity but the quality and nature of the

contacts that are important to the minimum-contacts analysis. See Coleman, 83 S.W.3d

at 806; see also Retamco, 278 S.W.3d at 339 (“[T]he minimum-contacts analysis is

focused on the quality and nature of the defendant’s contacts, rather than their number.”);

Tempest Broad. Corp. v. Imlay, 150 S.W.3d 861, 875 (Tex. App.—Houston [14th Dist.]

2004, no pet.).

40
 Based on the record, all appellants traveled to Texas at least once regarding the

rice litigation and most visited Texas on several occasions. For instance, Levitt and

Isquith traveled to Texas to present their clients for deposition. According to Isquith, Levitt

also visited Texas for the purpose of meeting potential clients in the rice MDL. Arsenault

traveled to Texas on at least four occasions in connection with the MDL. Significantly,

Downing traveled to Texas on behalf of all appellants to negotiate the global settlement

with Bayer and to specifically discuss and demand the disputed fees that are at issue in

this lawsuit. See Moncrief, 414 S.W.3d at 154.

Appellants engaged in hundreds, or thousands, of communications with individuals

in Texas regarding the rice litigation. Appellants engaged in hundreds of communications

with Texans in attempting to settle the claims in the genetically modified rice MDL in

conjunction with the settlement of the state court claims. Appellants participated in

months of negotiations with Texas lawyers and Texas residents and participated in

drafting settlement agreements affecting Texas real property and assets in Texas.

Appellants engaged in hundreds of communications with Texans in attempting to procure

their alleged share of the fees from the state court settlement.

Appellants’ contacts with Texas were not random, fortuitous or attenuated. See

BMC Software, 83 S.W.3d at 795; Tempest Broad. Corp., 150 S.W.3d at 875–76. Further,

as stated previously, even a single act can support jurisdiction so long as it is substantial.

See Cartlidge v. Hernandez, 9 S.W.3d 341, 348 (Tex. App.—Houston [14th Dist.] 1999,

no pet.); Mem’l Hosp. Sys., 835 S.W.2d at 650–51, and the record indicates that Downing

traveled to Texas to negotiate settlement of the rice litigation and to seek attorney’s fees

from appellees’ state court claims. Considering the overall quality and nature of the

41
appellants’ contacts with Texas, including but not limited to Downing’s trip to Texas, we

conclude that this factor predominates in favor of jurisdiction in Texas. See Coleman, 83

S.W.3d at 806; see also Retamco, 278 S.W.3d at 339.

3. Website

Appellees contend that the rice litigation website utilized by appellants constitutes

a jurisdictionally significant contact with Texas. Appellants contend that the website was

passive and, accordingly, lacks significance in our analysis.

For jurisdictional purposes, we analyze cases involving a website according to the

degree of interaction allowed by the website. Specifically, internet usage is divided into

three categories, using a sliding scale, for the purposes of establishing personal

jurisdiction. Choice Auto Brokers, Inc. v. Dawson, 274 S.W.3d 172, 177–78 (Tex. App.—

Houston [1st Dist.] 2008, no pet.); Reiff v. Roy, 115 S.W.3d 700, 705 (Tex. App.—Dallas

2003, pet. denied). “At one end of the scale are websites clearly used for transacting

business over the [i]nternet, such as entering into contracts and knowing and repeated

transmission of files of information, which may be sufficient to establish minimum contacts

with a state.” Reiff, 115 S.W.3d at 705; see Choice Auto Brokers, Inc., 274 S.W.3d at

177–78. “Interactive” websites that allow the “exchange” of information between a

potential customer and a host computer are in the middle of the scale. Reiff, 115 S.W.3d

at 706; see Choice Auto Brokers, Inc., 274 S.W.3d at 177–78. “Passive” websites that

are used only for advertising over the internet are not sufficient to establish minimum

contacts even though they are accessible to residents of a particular state.” Id. at 705–

06.13

13Much of the analysis regarding websites is devoted to their place in a general jurisdiction analysis
rather than a specific jurisdiction analysis, as applicable in this case. See, e.g., Exchequer Fin. Grp., Inc.

42
 The rice litigation website was not interactive and did not allow the exchange of

information between a potential customer and the host computer. Accordingly, in a typical

analysis, this factor would not support jurisdiction. Reiff, 115 S.W.3d at 706; see Choice

Auto Brokers, Inc., 274 S.W.3d at 177–78. However, the website contained the electronic

pleadings filed in the MDL which were informational in nature and which appellants

intended to be used by state court litigants. The website could thus be characterized as

one which allowed the knowing and repeated transmission of files. Reiff, 115 S.W.3d at

705; see Choice Auto Brokers, Inc., 274 S.W.3d at 177–78. Given that the rice website

utilized by appellants in the MDL was intended to and did provide the repeated

transmission of documents to state court litigants, and that the use of these documents

allegedly benefited the state court litigants and is a basis for the appellants’ claims for

compensation, we conclude that the genetically modified rice website is a factor which

weighs in favor of jurisdiction.

4. Appellants’ Relationships with Texas Entities

Appellees contend that appellants’ contacts with Looper Reed, a law firm located

in Texas, are significant in our jurisdictional analysis. As stated previously, in examining

appellants’ contact with Texas, we do not consider the unilateral activity of another party

or a third person. See IRA Res., Inc. v. Griego, 221 S.W.3d 592, 596 (Tex. 2007) (per

curiam); see e.g., Gordon & Doner, P.A. v. Joros, 287 S.W.3d 325, 335 (Tex. App.—Fort

Worth 2009, no pet.). Nevertheless, the contacts of an agent or corporate representative

may be sufficient to confer jurisdiction on the principal. MasterGuard L.P. v. Eco Techs.

v. Stratum Dev., Inc., 239 S.W.3d 899, 909 (Tex. App.—Dallas 2007, no pet.); see also Klug v. Wickert,
No. 05-14-00080-CV, 2015 WL 4338424, at *6 (Tex. App.—Dallas July 16, 2015, no. pet. h.); My Vacation
Europe, Inc. v. Sigel, No. 05–14–00435–CV, 2015 WL 316319, at *5 (Tex. App.—Dallas Jan. 26, 2015, no
pet.) (mem. op.).

43
Int’l LLC, 441 S.W.3d 367, 377 (Tex. App.—Dallas 2013, no pet.); Olympia Capital

Assocs., L.P. v. Jackson, 247 S.W.3d 399, 412–13 (Tex. App.—Dallas 2008, no pet.).

Consequently, the question is whether Looper Reed’s actions are attributable to

appellants for purposes of the specific jurisdiction analysis.

An essential element of the principal-agent relationship is the alleged principal’s

right to control the actions of the alleged agent. Exxon Corp. v. Tidwell, 867 S.W.2d 19,

21 (Tex. 1993); Olympia Capital Assocs., L.P., 247 S.W.3d at 412–13. This right includes

not only the right to assign tasks, but also the right to dictate the means and details of the

process by which an agent will accomplish the task. Olympia Capital Assocs., L.P., 247

S.W.3d at 412–13; Ross v. Tex. One P’ship, 796 S.W.2d 206, 210 (Tex. App.—Dallas

1990), writ denied, 806 S.W.2d 222 (Tex.1991) (per curiam). In the instant case, the

record is clear that appellants directed Looper Reed in the prosecution of the MDL;

however, the record indicates that appellants did not retain the right to control the details

of Looper Reed’s work in the genetically modified rice MDL. Accordingly, we do not

consider the acts of Looper Reed as imputed to appellants or determinative of our specific

jurisdiction analysis. See Olympia Capital Assocs., L.P., 247 S.W.3d at 412–13.14

We further note that Downing testified that appellants entered into joint prosecution

agreements with Texas entities15 regarding the prosecution of related Texas cases and

14 While we do not attribute Looper Reed’s contacts with Texas to appellants, we nevertheless
conclude that appellants’ delegation of work to, and communications with, Looper Reed are not wholly
insignificant factors in our analysis. Appellants both instigated and authorized significant activity in Texas.
Cf. IRA Res., Inc., 221 S.W.3d at 598; see Citrin, 305 S.W.3d at 283 (stating that a non-resident’s multiple
Texas contacts over many months in the course of an ongoing relationship that was not unilaterally initiated
by the Texas resident demonstrated purposeful contact with Texas along with an intent to obtain benefits
from these contacts).
15 Appellants entered into separate joint prosecution agreements with, among others, Riviana and
a different Texas company, Beaumont Rice Mills.

44
sharing common benefit materials. In this regard, a nonresident’s entry into a joint

prosecution agreement with a Texas entity does not necessarily the nonresident to

jurisdiction in Texas. See, e.g., Gordon & Doner, P.A. v. Joros, 287 S.W.3d 325, 334

(Tex. App.—Fort Worth 2009, no pet.) (rejecting a joint venture agreement as a source of

jurisdiction when the agreement did not focus on litigation in Texas and the contemplated

activity occurred by the Texas member of the joint venture); Langston, 255 S.W.3d at 411

(holding partnership’s contacts with state not imputed to individual nonresident partner to

establish personal jurisdiction absent evidence partner participated in litigation in Texas

or had other individual contacts); see also Moni Pulo Ltd. v. Trutec Oil & Gas, Inc., 130

S.W.3d 170, 175 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (op. on reh’g)

(holding acts of one joint venturer in business that did not focus on Texas “did not create

jurisdiction, as opposed to liability, of other—that is, there are no imputed minimum

contacts”).

Overall, appellants’ relationships with the Texas entities discussed here does not

weigh in favor of personal jurisdiction.

5. Summary

We conclude that appellants’ contacts with Texas were substantial and purposeful.

Appellants sought and obtained leadership roles in the genetically modified rice MDL

knowing that Texas was one of the five main rice-producing states involved in that

litigation. Appellants’ contacts with Texas, through representing Texans directly and as

members of the leadership group, were neither random nor attenuated.

Further, in determining whether appellants purposefully directed action toward

Texas, we may look to conduct beyond the particular business transaction at issue

45
because additional conduct of the defendant may indicate an intent or purpose to serve

the market in the forum State. Moki Mac, 221 S.W.3d at 577; see also Michiana, 168

S.W.3d at 786. As a group, appellants had mass tort and nation-wide class action

practices that included Texas clients. One appellant testified that he obtained a Texas

law license because he thought it would benefit his business. One appellant had an

interactive website. One appellant visited Texas to solicit Texas clients in the rice

litigation. In summary, appellants sought clients and affirmatively promoted their business

in Texas. See IRA Res., Inc., 221 S.W.3d at 597; Moki Mac, 221 S.W.3d at 575–76;

Michiana, 168 S.W.3d at 785.

We conclude that, far from seeking to avoid Texas, appellants sought out Texas

and the benefits and protections of its laws. Moncrief, 414 S.W.3d at 154; Michiana, 168

S.W.3d at 785; BMC Software, 83 S.W.3d at 795.

B. BENEFIT, ADVANTAGE, OR PROFIT

We next consider whether appellants sought some benefit, advantage, or profit by

availing themselves of Texas. Moncrief, 414 S.W.3d at 151. Appellants sought

leadership roles in the MDL knowing that Texas was one of the five rice-producing states.

Appellants utilized Texas law and a Texas law firm in their prosecution of the MDL.

Appellants selected Texas landowners to serve as the plaintiffs in one of the seminal

bellwether trials in the MDL. Appellants were paid attorney’s fees directly from any Texas

clients that they had and they also received common benefit funds from recoveries from

Texans. According to estimates in the record, the common benefit funds included

approximately $6 million derived from settlement recoveries attributable to Texas farmers.

Appellants currently seek to recover additional attorney’s fees from the qualified

46
settlement fund for the state court litigants, which includes funds for Texas residents. In

this regard, we note that appellants generally assert that they are only seeking fees from

appellees, as attorneys for the state court litigants, rather than from the state court litigants

themselves, however, even if we characterize appellants’ claims in this manner,

appellants seek attorney’s fees from, inter alia, attorneys who are Texas residents.

We conclude that the record supports the trial court’s implied finding that

appellants sought the benefits, advantages, and profits inherent in representing hundreds

or thousands of Texans in the rice MDL, most specifically in the form of attorney’s fees.

See id.

C. SUBSTANTIAL CONNECTION

Finally, we examine whether there is a substantial connection between the

appellants’ contacts with Texas and the operative facts of this litigation. See Moki Mac,

221 S.W.3d at 576, 585. In terms of the specific dispute at issue, appellants admittedly

thought that they had earned the attorney’s fees at issue in this lawsuit. Appellant

Downing traveled to Texas and met with Watts at his home to, in part, attempt to resolve

appellants’ claims to the disputed fees. Appellants had hundreds of communications with

appellees in Texas about the fees. In this regard, we note that appellants were not

signatories to the state court settlement, and have pointed out that they did not agree to

the venue provision in that agreement. However, the record nevertheless reflects that

the MDL settlement and the GMB state court settlement were effectively negotiated

together and contingent on each other, and appellants effectively had to approve the state

court settlement in order to settle the MDL.

47
 We conclude that the claims in this lawsuit arise from or relate to appellants’

purposeful contacts with Texas. See Weldon-Franke, 237 S.W.3d at 797; Bergenholz,

200 S.W.3d at 293–97. Appellants intended the Texas litigants to profit from their

common benefit work and intended Texas lawyers to use their common benefit work, and

sought payment from the Texas state court litigants and their Texas attorneys for their

common benefit work. The rights to these fees are directly at issue in the underlying

action for declaratory judgment.

D. CONCLUSION

In determining whether jurisdiction exists, each case turns on its own facts.

Guardian Royal Exch. Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 231

(Tex. 1991); Schlobohm v. Schapiro, 784 S.W.2d 355, 358 (Tex. 1990). Considering the

quality and nature of appellants’ contacts with Texas, we conclude that the record

supports the exercise of jurisdiction over appellants in this litigation. See Am. Type

Culture, 83 S.W.3d at 806. Appellants as a group sought to systematically represent

hundreds of Texas litigants in their claims against Bayer in the MDL, and further

admittedly sought to represent Texas state court litigants with the same or similar claims

against Bayer. Focusing on the relationship among the appellants, Texas, and this

litigation, we conclude that a substantial connection exists between appellants’ contacts

with Texas and the operative facts of the litigation. See Kelly, 301 S.W.3d at 658; Moki

Mac, 221 S.W.3d at 575–76.

VII. FAIR PLAY AND SUBSTANTIAL JUSTICE

Having found that appellants purposefully established minimum contacts with

Texas, we next consider whether the exercise of personal jurisdiction over appellants

48
comport with traditional notions of fair play and substantial justice. Specifically, in addition

to sufficient minimum contacts, due process requires the exercise of personal jurisdiction

to comply with traditional notions of fair play and substantial justice. Retamco, 278

S.W.3d at 338. In this regard, appellants argue that they will be burdened by having to

appear and litigate this case in Texas, as they do not live or work in or near Texas and

most, if not all, of the witnesses necessary for their defense reside outside the State of

Texas, “save and except, perhaps, representatives of co-defendant Looper Reed.”

If a nonresident has minimum contacts with the state, then the exercise of

jurisdiction over the nonresident will rarely offend traditional notions of fair play and

substantial justice. Moncrief, 414 S.W.3d at 154–55; Retamco, 278 S.W.3d at 338. In

evaluating this component of personal jurisdiction, we consider the following factors: (1)

the burden on the defendant; (2) the interests of the forum in adjudicating the dispute; (3)

the plaintiff’s interest in obtaining convenient and effective relief; (4) the interstate judicial

system’s interest in obtaining the most efficient resolution of controversies; and (5) the

shared interest of the several states in furthering fundamental substantive social policies.

Moncrief, 414 S.W.3d at 150; Guardian Royal, 815 S.W.2d at 232. The defendant must

present “a compelling case that the presence of some consideration would render

jurisdiction unreasonable.” Spir Star AG v. Kimich, 310 S.W.3d 868, 879 (Tex. 2010);

Dodd, 426 S.W.3d at 287.

The fact that appellants are not Texas residents is insufficient in itself to show that

their burden is excessive. See Henkel v. Emjo Investments, Ltd., No. 01-14-00703-CV,

__ S.W.3d __, __, 2015 WL 5076287, at *5 (Tex. App.—Houston [1st Dist.] Aug. 27, 2015,

no. pet. h.); Tempest Broad. Corp. v. Imlay, 150 S.W.3d 861, 877 (Tex. App.—Houston

49
[14th Dist.] 2004, no pet.). Further, subjecting appellants to suit in Texas certainly

imposes a burden on them, but the same can be said of all nonresidents; thus, distance

alone cannot ordinarily defeat jurisdiction. Moncrief, 414 S.W.3d at 155; Spir Star, 310

S.W.3d at 879. Given the appellants’ use of the Texas legal system “and their increased

familiarity with the forum and legal system” through representing Texans in lawsuits

based in relevant part on Texas law, “the burden of litigating in Texas is not so severe as

to defeat jurisdiction.” Cf. Moncrief, 414 S.W.3d at 155; Spir Star, 310 S.W.3d at 879. In

this regard, we note that courts generally do not find any problems with fair play and

substantial justice in exercising jurisdiction over attorneys when the courts have

jurisdiction over the attorneys’ clients. See, e.g., In re Prudential Ins. Co. of Am. Sales

Practices Litig., 314 F.3d 99, 103 n.7 (3rd Cir. 2002); In re Diet Drugs, 282 F.3d 220, 231

(3rd Cir. 2002); Wartsila NSD N. Am., Inc. v. Hill Int’l, Inc., 269 F. Supp. 2d 547, 557

(D.N.J. 2003). Finally, because appellants’ claims will be litigated with those defendants

who did not appeal the denial of their special appearances, it promotes judicial economy

to litigate the claims as to all parties in one court. See Moncrief, 414 S.W.3d at 155; Spir

Star, 310 S.W.3d at 879. On balance, the burden on the appellants of litigating in a foreign

jurisdiction is minimal and outweighed by Texas’s interests in adjudicating the dispute.

Moncrief, 414 S.W.3d at 155.

After weighing all of the relevant factors, we conclude that exercising personal

jurisdiction over appellants would not offend the traditional notions of fair play and

substantial justice.

VIII. CONCLUSION

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 Having concluded that the facts support specific jurisdiction over the appellants,

we need not address general jurisdiction. See TEX. R. APP. P. 47.1, see, e.g., Citrin

Holdings, LLC v. Minnis, 305 S.W.3d 269, 279 (Tex. App.—Houston [14th Dist.] 2009, no

pet.); Flanagan v. Royal Body Care, Inc., 232 S.W.3d 369, 378 (Tex. App.—Dallas 2007,

pet. denied). We note, in this regard, that evidence informing the trial court’s decision

comprised affidavits, including multiple affidavits from the same individuals, answers to

discovery, and deposition testimony. The jurisdictional facts as alleged by appellants

were frequently unclear, obfuscated, or directly contradicted by other evidence. To the

extent that the trial court’s resolution of evidentiary conflicts turned on credibility

determinations or the weight of the evidence, we do not disturb it herein. Benoit v. Wilson,

239 S.W.2d 792, 796–97 (Tex. 1951); Young Chevrolet, Inc. v. Tex. Motor Vehicle Bd.,

974 S.W.2d 906, 914 (Tex. App.—Austin 1998, pet. denied).

We lift the stay previously imposed in this cause and we affirm the order of the trial

court denying appellants’ special appearances.

NORA L. LONGORIA
Justice

Delivered and filed the
8th day of October, 2015.

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