State v. LG Electronics, Inc.

Gordon McCloud, J.

¶27 (concurring in part and dissenting in part) — The State filed this antitrust action against several foreign manufacturers of CRTs8 and their out-of-*186state distributors, alleging a conspiracy to fix the global market price of CRTs. Defendants9 moved to dismiss due to lack of personal jurisdiction under Civil Rule (CR) 12(b)(2) and supported their motions with unrebutted declarations about their lack of contacts in our state.

¶28 This case involves an intentional conspiracy to fix prices in violation of RCW 19.86.030—not a defective product.10 The majority nevertheless applies a “stream of commerce” test derived from fractured Supreme Court opinions involving products liability, i.e., Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987) (plurality opinion) and J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873, 131 S. Ct. 2780, 180 L. Ed. 2d 765 (2011) (plurality opinion), and concludes that the trial court had jurisdiction under one of the nonmajority, nonplurality opinions in one of these cases. Majority at 177, 182. The Supreme Court, however, has applied a different test to intentional torts. It holds that when a plaintiff claims injury from the intentional acts of another, the test for whether a court has specific personal jurisdiction over an out-of-state defendant is the “effects” test articulated in Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984). See also Walden v. Fiore, _ U.S. _, 134 S. Ct. *1871115, 188 L. Ed. 2d 12 (2014). I would apply Calder's “effects” test and find no jurisdiction. But even if a “stream of commerce” analysis applied, most Defendants11 filed unrebutted declarations showing that Washington lacked sufficient minimum contacts to support jurisdiction under the controlling “purposeful availment” standard for the “stream of commerce” analysis articulated in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980). I therefore respectfully dissent.

FACTUAL BACKGROUND

¶29 The State filed this antitrust action in Washington State against several foreign manufacturers, marketers, and sellers of CRTs, alleging that they colluded to fix the global market price of CRTs at supracompetitive levels in violation of the Consumer Protection Act, chapter 19.86 RCW. Specifically, the complaint alleged that Defendants sold these CRTs at inflated prices to out-of-state assemblers and that these assemblers then incorporated the CRTs into end products (CRT Products) and later sold these CRT Products to consumers in Washington. According to the State, the end purchasers of CRT Products suffered the ultimate harm from the passed-on overpricing. Clerk’s Papers (CP) at 18, 20. In its complaint, the State does not estimate how many CRT Products—or even how many of Defendants’ CRTs—were purchased by Washington consumers during the 12-year conspiracy period, but notes that 28 million CRT monitors were purchased in North America in 1995 alone and that Defendants collectively held a 78 percent share of the global CRT market. CP at 24, 15.

¶30 Defendants, who are not Washington residents, moved to dismiss due to lack of personal jurisdiction. They *188argued, and filed declarations, to prove that they lacked sufficient minimum contacts with the Washington forum. The State acknowledges that Defendants operated mainly outside of Washington, with their principal places of business in the Netherlands, South Korea, Taiwan, China, Malaysia, Brazil, Mexico, and California. CP at 4-12. The State did not contest Defendants’ declarations filed in support of their CR 12(b)(2) motions showing that they maintained no offices in Washington and employed no Washington employees. CP at 40-42, 56-64, 84-86, 104-06, 203-06. The State did not challenge Defendants’ showing that for many of them, their only connection with Washington was that the CRTs they manufactured were incorporated into CRT Products by immediate purchasers, and then the CRT Products were sold by those immediate purchasers to nonparticipants in that original purchase, i.e., to Washington consumers.

¶31 The majority contends that personal jurisdiction is proper in Washington because the complaint alleged that “(1) the [Defendants] together dominated the global market for CRTs, (2) the [Defendants] sold CRTs into international streams of commerce with the intent that the CRTs would be incorporated into millions of CRT products sold across the United States and in large quantities in Washington, and (3) along with their coconspirators, the [Defendants] intended for their price-fixing activities to elevate the price of CRT products purchased by consumers in Washington.” Majority at 182 (citing CP at 15, 3). Nowhere in the complaint, however, did the State allege that Defendants had control over what costs their direct buyers passed on to the indirect end purchasers or that they controlled where their buyers would choose to sell the CRT Products.

*189ANALYSIS

I. CONSPIRACY TO FIX PRICES IN VIOLATION OF RCW 19.86.030 IS AN INTENTIONAL WRONG, NOT A PRODUCT DEFECT, SO JURISDICTION SHOULD BE DETERMINED UNDER THE CALDER “EFFECTS” TEST APPLICABLE TO INTENTIONAL HARMS, NOT A “STREAM OF COMMERCE” TEST APPLICABLE TO PRODUCTS LIABILITY

A. The Supreme Court Has Adopted Two Different Tests for Analyzing a Defendant’s “Minimum Contacts”

¶32 The majority is certainly correct that a court cannot exercise specific personal jurisdiction over an out-of-state defendant unless such jurisdiction is consistent with the due process clause. Id. at 176; U.S. Const. amend. XIV, § 1. It is also correct that the due process clause requires sufficient “minimum contacts” between the defendant and the forum state to support such jurisdiction. Majority at 176 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945)).

¶33 The Supreme Court, however, has applied two different tests for evaluating the sufficiency of “minimum contacts” to support specific personal jurisdiction: (1) the “stream of commerce” test derived from product liability cases, World-Wide Volkswagen, Asahi, and J. McIntyre; and (2) the “effects” test derived from intentional tort cases, Calder and Walden. The first question for us is, which test applies here?

B. The Majority Finds Jurisdiction under Justice Brennan’s “Chain of Distribution” Analysis, Derived from Product Liability Cases, Even Though J. McIntyre Requires “Something More”

¶34 The majority applies a “stream of commerce” analysis to the jurisdictional question in this case. More specifi*190cally, the majority applies one of several different “stream of commerce” tests that some Supreme Court justices have endorsed but that no Supreme Court majority has ever adopted as a holding. Id. at 177-78.

¶35 The “stream of commerce” analysis was adopted by the Supreme Court in product liability cases and has been applied by that Court only to product liability cases. It was introduced as a basis for evaluating minimum contacts in World-Wide Volkswagen—a products liability case involving a defective automotive fuel system. 444 U.S. at 297-98. In that case, the Court unanimously recognized that in the right circumstances, a corporation could be subject to personal jurisdiction in a foreign forum based on the distribution of its products in that foreign forum. Id. The Court began by explaining that personal jurisdiction arises if the corporation “deliver [ed] its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.” Id. at 298. The Court further clarified, though, that jurisdiction attached only where “the sale of a product of a manufacturer or distributor ... is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its products in [the forum state].” Id. at 297 (emphasis added). The Court rejected the notion that jurisdiction could exist simply because it was foreseeable that the defendant’s product might enter the forum state. Id. at 296. The defendant’s purposeful availment of the benefits of the forum, the Court explained, is key. Id. at 295-98.

¶36 Although the World-Wide Volkswagen Court unanimously agreed that placement of a product in the “stream of commerce” could support jurisdiction over an out-of-state defendant in product liability actions in certain circumstances, it later split on what activities would be sufficient to trigger such jurisdiction. The fractured opinions on this topic began in 1987 in Asahi. In Asahi, the question was whether a California court could exercise jurisdiction over *191foreign manufacturers who sold component products overseas, based on the fact that the overseas purchasers integrated those component parts into retail products and some of those retail products were sold in California. 480 U.S. at 106-07. Justice O’Connor’s plurality opinion proposed a “stream of commerce plus” test for evaluating personal jurisdiction over an out-of-state defendant in such cases. Under that test, the plaintiff must show that the defendant did more than simply place its products into the stream of commerce to support such jurisdiction. The plaintiff must also show “conduct of the defendant” indicating an intent or purpose to serve the market in the forum state, such as designing the product for the forum market or marketing the product there. Id. at 112.

¶37 In contrast, Justice Brennan proposed a “chain of distribution” test. Under that test, the plaintiff need show only that the “regular and anticipated flow of products from manufacture to distribution to retail sale” occurred in the forum state to support personal jurisdiction there. Id. at 117 (Brennan, J., concurring).

¶38 Justice Stevens used a third test. That test considered the defendant’s “course of dealing[s],” including the “volume, the value, and the hazardous character of the components.” Id. at 122 (Stevens, J., concurring).

¶39 None of these tests garnered a majority. Indeed, at least five justices rejected each test. A majority of the Court instead resolved the jurisdictional question on other grounds related to traditional notions of fair play and substantial justice. Id. at 113. Thus, the Court left open the confusing question of what to do with the various tests that were articulated and then rejected.

¶40 As the majority correctly observes, the Supreme Court clarified these tests somewhat in J. McIntyre. In that 2011 decision, the Court ruled that the plaintiff must show that the defendant did “something more” than just sell its products through a nationwide distributor with the hope that they might be sold in the forum state to support forum *192jurisdiction. J. McIntyre, 564 U.S. at 888-89 (Breyer, J., concurring); see majority at 180. This “something more,” the majority recognizes, modified Justice Brennan’s “chain of distribution” test. See majority at 180-81.

¶41 The majority, however, denies that this “something more” is the equivalent of Justice O’Connor’s “plus” factor.12 See id. at 181. Instead, the majority interprets this “something more” as merely requiring more than a single, isolated product ending up in the forum state. Id. at 180-81. Thus, the majority takes the position that J. McIntyre adopted the bulk of Justice Brennan’s Asahi concurrence (without saying so).

¶42 The majority then applies Justice Brennan’s “chain of distribution” test (not Justice O’Connor’s Asahi plurality or World-Wide Volkswagen) and holds that the trial court has jurisdiction over Defendants in this case because the State alleged that Defendants placed large quantities of their products into international streams of commerce with the knowledge that they will likely enter the Washington market at some point, and that many more than one of them did enter our state. Id. at 182. This is probably a correct application of Justice Brennan’s test.

¶43 But J. McIntyre did not silently adopt Justice Brennan’s Asahi concurrence. In fact, a majority of the justices in J. McIntyre held that New Jersey, the forum state, lacked jurisdiction over the foreign manufacturer, despite the fact that its metal-shearing machine was sold to a distributor who resold it there, and despite the fact that *193the machine seriously injured a worker there. When one compares those facts to the facts in the instant case, it is clear that there is even less of a connection between the manufacturers and the plaintiff here than between the manufacturer and the plaintiff there: J. McIntyre at least entered the United States’ stream of commerce, rather than just the global, international market; attended annual conventions in the United States; and sold its machines to a domestic distributor, knowing that those machines would be sold throughout the United States. J. McIntyre, 564 U.S. at 878. The State’s complaint does not allege that Defendants ever even visited the United States, let alone Washington.

¶44 The majority seems to recognize that its analysis is somewhat inconsistent with J. McIntyre, with the supposed J. McIntyre endorsement of Justice Brennan’s test, and even with World-Wide Volkswagen. It therefore supports its conclusion with a fact peculiar to this case and missing from those stream of commerce cases: the intentional nature of Defendants’ alleged conspiracy. Majority at 182. I agree that that fact is peculiar to this case and hence calls for a different analysis here. But it does not call for yet another different stream of commerce test made especially for the intentional conspiracy situation. Instead, it underscores the importance of using the “minimum contacts” test that the Supreme Court has already adopted—unanimously—for just such intentional tort situations: the Calder “effects” test.13

*194C. The Calder “Effects” Test Is the One That the Supreme Court Applies Where, as Here, Intentional Torts Are Alleged

¶45 Each time the Supreme Court has answered a jurisdictional question involving an intentional act, it has unanimously applied the “effects” test rather than the “stream of commerce” test. See Calder, 465 U.S. 783 (intentional act of libel); Walden, 134 S. Ct. 1115 (intentional act of fraud). Under the Calder “effects” test, the plaintiff must show that the defendant (1) committed an intentional act (2) expressly aimed at the forum state, (3) causing harm, the brunt of which was suffered—and which the defendant knew would likely be suffered—in the forum state. CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1077 (9th Cir. 2011) (quoting Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1128 (9th Cir. 2010)).

¶46 The Court applied this test for the first time in a case involving the intentional tort of libel. In Calder, a California actress filed a lawsuit in California against two employees of a Florida magazine, alleging that they had published a libelous article about her. 465 U.S. at 784. Although the Florida defendants never entered California in connection with the article, the Supreme Court nevertheless held that California had jurisdiction over them. The Court found the defendants had sufficient contacts with California because they made phone calls to California sources to obtain information for their article, they wrote the story about the plaintiff’s activities in California, they caused reputational injury in California by writing an allegedly libelous article that was widely circulated in California, and they knew the plaintiff would suffer the brunt of that injury in California where she resided. Walden, 134 S. Ct. at 1123; Calder, 465 U.S. at 785-90.

*195¶47 The Supreme Court again unanimously applied the “effects” test in evaluating Nevada’s jurisdiction over an action for fraud, another intentional act, in Walden. In that case, airplane passengers detained at an airport in Georgia filed a Bivens14 action against several Georgia police officers, alleging that they had intentionally seized and kept plaintiffs’ cash without probable cause and later lied about it in false affidavits. Walden, 134 S. Ct. at 1124. But the plaintiffs filed in Nevada, where they lived, rather than Georgia, where the seizure occurred. The question for the Supreme Court was whether the Nevada court had personal jurisdiction over these out-of-state officers, since the officers knew at the time of the seizure that the plaintiffs resided in Nevada and that they were headed to Nevada to gamble with the monies seized. Id. at 1119. The Supreme Court unanimously held that Nevada lacked jurisdiction. According to the Court, due process requires more than just knowledge of the plaintiffs’ strong forum connections or that the plaintiffs would suffer foreseeable harm in the forum from the defendants’ acts. Id. at 1125. It requires that the defendants themselves have some contact with the forum state. See id. at 1122. Because the officers’ relevant conduct occurred entirely in Georgia, due process clause protections barred the Nevada court from exercising specific personal jurisdiction over them. Id. at 1126.

¶48 The Walden Court applied Calder’s “effects” test but distinguished Calder’s outcome because “the reputation-based ‘effects’ of the alleged libel [in Calder] connected the defendants to California, not just to the plaintiff.” Id. at 1123-24. This strong connection “was largely a function of the nature of the libel tort. However scandalous a newspaper article might be, it can lead to a loss of reputation only if communicated to (and read and understood by) third persons.” Id. at 1124.

*196¶49 Under controlling Supreme Court precedent, the Colder “effects” test applies to actions, such as this, involving an intentional act.

I). The Supreme Court Unanimously Applied the “Effects” Test in Calder Even Though a Product Was Involved

¶50 To be sure, an antitrust action involving a price-fixing conspiracy over component parts does involve a product, even though it also constitutes an intentional act. Because of this, lower courts have struggled over which test to apply in this hybrid context.

¶51 Many apply the “effects” test to such antitrust actions. E.g., In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 207-08 (2d Cir. 2003) (per curiam); In re Cathode Ray Tube (CRT) Antitrust Litig., 27 F. Supp. 3d 1002, 1011 (N.D. Cal. 2014); Am. Copper & Brass, Inc. v. Mueller Eur., Ltd., 452 F. Supp. 2d 821, 828-29 (W.D. Tenn. 2006); In re Vitamins Antitrust Litig., 270 F. Supp. 2d 15, 32 (D.D.C. 2003); see also In re Capacitors Antitrust Litig., No. 14-cv-03264-JD, 2015 WL 3638551, at *2, 2015 U.S. Dist. LEXIS 76557, at *17 (N.D. Cal. June 11, 2015) (court order); In re Fasteners Antitrust Litig., No. 08-md-1912, 2011 WL 3563989, at *12, 2011 U.S. Dist. LEXIS 90076, at *37 (E.D. Pa. Aug. 12, 2011) (court order); In re Bulk [Extruded] Graphite Prods. Antitrust Litig., No. 02-6030, 2007 WL 2212713, at *6, 2007 U.S. Dist. LEXIS 54906, at *14 (D.N.J. July 30, 2007) (unpublished).15 These courts reason that the “effects” test applies because a price-fixing antitrust action primarily involves an intentional tort. Bulk [Extruded] Graphite, 2007 WL 2212713, at *5, 2007 U.S. Dist. LEXIS 54906, at *14; Fasteners, 2011 WL 3563989, at *12, 2011 U.S. Dist. LEXIS 90076, at *36.

*197¶52 Others apply a “stream of commerce” analysis to such antitrust actions. E.g., Merriman v. Crompton Corp., 282 Kan. 433, 467-68, 146 P.3d 162 (2006); Frankenfeld v. Crompton Corp., 2005 SD 55, 697 N.W.2d 378, 385-86; Holder v. Haarmann & Reimer Corp., 779 A.2d 264, 273-74 (D.C. 2001); Four B Corp. v. Ueno Fine Chems. Indus., Ltd., 241 F. Supp. 2d 1258, 1265 (D. Kan. 2003). The Kansas Supreme Court’s only reason for applying the “stream of commerce” analysis in the antitrust price-fixing context was that at least one other court had done so. Merriman, 282 Kan. at 468 (citing Hitt v. Nissan Motor Co., 399 F. Supp. 838 (S.D. Fla. 1975)).

¶53 Some courts apply both tests. E.g., In re Chocolate Confectionary Antitrust Litig., 602 F. Supp. 2d 538, 562-65 (M.D. Pa. 2009); In re Dynamic Random Access Memory (DRAM) Antitrust Litig., No. C 02-1486 PJH, 2005 WL 2988715, at *5-7, 2005 U.S. Dist. LEXIS 30299, at *18-21 (N.D. Cal. Nov. 7, 2005) (court order).16

¶54 The Supreme Court, however, applied only the “effects” test in Calder even though it also involved a product—a magazine—that was widely distributed throughout the forum state. The Calder Court upheld jurisdiction in California not based on the fact that 600,000 copies of the defendants’ magazine were sold weekly in California, but “based on the ‘effects’ of their Florida conduct in California.” 465 U.S. at 789. Calder therefore supports applying only the “effects” test in an action such as this, where the gravamen of the claim is the defendant’s intentional wrongdoing and not a defect in a traveling product.

*198II. JURISDICTION IS LACKING UNDER BOTH THE CALDER “EFFECTS” TEST AND THE CONTROLLING “STREAM OF COMMERCE” TEST

A. Washington Lacks Personal Jurisdiction over Most Defendants under the “Effects” Test

¶55 As discussed above, for a court to have personal jurisdiction over an out-of-state defendant under the “effects” test, the plaintiff must show that the defendant (1) committed an intentional act (2) expressly aimed at the forum state, (3) causing harm, the brunt of which was suffered—and which the defendant knew would likely be suffered—in the forum state. CollegeSource, 653 F.3d at 1077.

¶56 The State did allege that Defendants committed an intentional act—conspiracy to fix the price of CRTs. The injury alleged, however, relates to the inflated price of CRT Products, not CRTs. The State did not allege any facts showing that the conspiracy targeted purchasers of CRTs in Washington. Nor did it allege that any of the “unlawful agreements” forming the underlying conspiracy occurred in Washington. In short, the complaint lacks any allegation that Defendants ever sold products in Washington or ever had control over the prices of CRT Products in Washington. The complaint instead alleged that some effects of the conspiracy over CRT prices were ultimately felt in Washington by Washington consumers who purchased CRT Products due to passed-on overpricing. CP at 17.

¶57 To be sure, the complaint did allege that Defendants expected direct purchasers of their CRTs to pass on the inflated prices to retail consumers of CRT Products: “Defendants concluded that they needed to make their price increase on CRTs high enough so that their direct customers would be able to justify a corresponding price increase to indirect purchasers. In doing so, Defendants’ actions ensured that price increases for CRTs were passed on to *199indirect purchasers of CRT Products.” CP at 20. But conclusory allegations about Defendants’ expectations are not facts that would support jurisdiction. Haberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 120, 744 P.2d 1032, 750 P.2d 254 (1987). At most, the State alleged that Defendants knew retail consumers of CRT Products would likely be harmed indirectly by their price-fixing of CRTs.

¶58 The Supreme Court has already held that this is not enough under the “effects” test. According to its unanimous decision in Walden, the plaintiff must allege more than just the defendant’s knowledge that the plaintiff resides in the forum state or that some harm would likely be felt there. Indeed, “[t]he proper question is not where the plaintiff experienced a particular injury or effect but whether the defendant’s conduct connects him to the forum in any meaningful way.” Walden, 134 S. Ct. at 1125. This means that “jurisdiction over an out-of-state intentional tortfeasor must be based on intentional conduct by the defendant that creates the necessary contacts with the forum.” Id. at 1123 (emphasis added). From this, it follows that “the plaintiff cannot be the only link between the defendant and the forum,” no matter how significant the plaintiff’s contact with the forum may be. Id. at 1122. As discussed above, the State has not provided any link between Defendants’ conduct and this state other than the fact that end consumers indirectly harmed by their alleged price-fixing conspiracy resided here. Jurisdiction is therefore lacking under the Supreme Court’s “effects” test.

¶59 Defendants’ declarations, for the most part, underscore that failure. Most Defendants17 submitted declara*200tions showing that they neither sold nor advertised CRTs in Washington State. CP at 40-42, 56-64, 84-86, 104-06, 203-06. In the absence of any connection between these Defendants’ acts and Washington, Walden precludes Washington courts from asserting personal jurisdiction over them.

¶60 Several lower courts that have considered this issue in the same context as that presented here—an intentional price-fixing conspiracy claim—have come to the same conclusion. In Chocolate Confectionary, for example, the plaintiffs filed an antitrust action in Pennsylvania, alleging that Mars Canada had conspired to fix the price of chocolate confectionary products in the United States and that it caused American consumers to pay artificially inflated prices for chocolate goods. 602 F. Supp. 2d at 548. Defendant Mars Canada disputed Pennsylvania’s jurisdiction over it. The district court applied the Calder “effects” test and found that it lacked jurisdiction over Mars Canada because the plaintiffs had failed to show that the company had specifically directed conduct toward the relevant forum (there, the United States18). Id. at 564-65. In particular, the district court noted that the plaintiffs had not alleged that Mars Canada was involved in any discussions about the pricing of American confectionary products or that it had any control over in-forum pricing. Id.

¶61 Like the plaintiffs in Chocolate Confectionary, the State in this case failed to allege that Defendants engaged in discussions about the pricing of CRT Products in Washington or that they controlled the pricing of those products here. This is because the CRT Products were assembled and sold by the direct purchasers not Defendants.19 Accord *201CRT Antitrust Litig., 27 F. Supp. 3d at 1012-13 (dismissing complaint for lack of jurisdiction in an indirect purchaser action involving price-fixing allegations because there were no allegations in the complaint that the defendants specifically shared information with their assemblers about the forum market, or that they coordinated with them about in-forum pricing). Following Chocolate Confectionary and CRT Antitrust Litig., Washington courts lack jurisdiction over Defendants in this case.

¶62 The court came to the same conclusion in American Copper & Brass. 452 F. Supp. 2d at 828-29. In that case, the plaintiffs sued a manufacturer of copper tubing in Tennessee for conspiracy to fix the global price of copper tubing, which resulted in indirect purchasers paying artificially high prices for such products in the United States. Id. at 824. The defendant submitted affidavits stating that they never sold, distributed, or sold for distribution any products into the United States. Id. at 828. The court ruled that it lacked jurisdiction over the defendant because there was no allegation of contact between the defendant and the forum (there, the United States). Id. at 829. According to that court, it is not enough to say that the defendant “ ‘[was] the leading global manufacturer of copper tubing.’ ” Id. The plaintiff must instead allege conduct by the defendant “ ‘expressly aimed’ ” at the forum. Id.

¶63 A district court for the Northern District of California also applied the “effects” test in an antitrust action involving price-fixing allegations and found jurisdiction lacking over the foreign defendants. DRAM, 2005 WL 2988715, at *6-7, 2005 U.S. Dist. LEXIS 30299, at *18-19. The district court reasoned, “Although plaintiffs allege that defendants have committed an intentional act by way of their participation in a price-fixing conspiracy, plaintiffs *202fail to allege that defendants’ conspiratorial acts were individually targeted towards any plaintiff whom defendants knew to be residents of [the forum states]. Nor can plaintiffs do so, given the uncontroverted testimony offered by defendants demonstrating that they have never manufactured nor sold any [dynamic random access memory (DRAM)] in any of the forum states, nor do they maintain any business or corporate formalities in the forum states, nor do they receive any substantial revenue from the sales of DRAM (or any other products) in the forum states.” 2005 WL 2988715, at *6-7, 2005 U.S. Dist. LEXIS 30299, at *18-19 (emphasis omitted).

¶64 Like the foreign manufacturers in Chocolate Confectionary, American Copper & Brass, and DRAM, most Defendants20 here did not direct activities toward the forum state (Washington) and did not sell products to customers here. The fact that they dominated the global market share for CRT sales or that their products were later incorporated into other products that were then assembled, sold, and distributed to indirect purchasers by other parties in the forum state is insufficient under these persuasive authorities.

B. The Result Is the Same under Controlling “Stream of Commerce” Authority

¶65 Even if the majority were correct and the “stream of commerce” analysis did apply here, the result would be the same under controlling “stream of commerce” precedent. As previously discussed, despite the Supreme Court’s attempts to clarify “stream of commerce” jurisdiction in Asahi and J. McIntyre, it has yet to adopt any of the “stream of commerce” tests articulated by Justice O’Connor, Justice Brennan, and Justice Stevens in Asahi. As the majority correctly observes, the only thing five Supreme Court *203justices agreed on in those cases was that a foreign manufacturer’s sale of products through an independent, nationwide distribution system is not sufficient, absent something more, for a state to assert personal jurisdiction over the manufacturer when only one product enters the forum state and causes injury. Majority at 181 (citing J. McIntyre, 564 U.S. at 889 (Breyer, J., concurring) for the narrowest holding). But this result, as Justice Breyer observed, stems not from any of the tests articulated in Asahi, but from the application of World-Wide Volkswagen. World-Wide Volkswagen thus seems to be the only controlling Supreme Court authority on “stream of commerce” analysis even after Asahi and J. McIntyre. Accord State v. Atl. Richfield Co., 2016 VT 22, 201 Vt. 342, 142 A.3d 215, 222.

¶66 World-Wide Volkswagen unambiguously holds that foreseeability of a defendant’s product eventually entering the forum state, alone, is not sufficient to support jurisdiction. 444 U.S. at 295-96. Nor can jurisdiction be based on the fact that the defendant benefited financially from some collateral relation with the forum state. Id. at 299. “Stream of commerce” jurisdiction arises only when “the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” Id. at 297 (emphasis added). Thus, “the mere ‘unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State.’ ” Id. at 298 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958)). There must be purposeful availment by the defendant.

¶67 The purposeful availment test measures the defendant’s conduct and connections with the forum state, not the plaintiff’s. This ensures notice and fairness: “When a corporation ‘purposefully avails itself of the privilege of conducting activities within the forum State,’ it has clear notice that it is subject to suit there, and can act to alleviate the risk of burdensome litigation by procuring insurance, *204passing the expected costs on to customers, or, if the risks are too great, severing its connection with the State.” Id. at 297 (citation omitted) (quoting Hanson, 357 U.S. at 253).

¶68 The State’s complaint failed to allege such conduct by Defendants in Washington. See supra Section II.A. The only connection the complaint alleged between Defendants and Washington stemmed from the unilateral activities of others in incorporating Defendants’ CRTs into new end products for sale in Washington. The complaint does not allege that Defendants had any control over these activities. The State also did not rebut or challenge the declarations that Defendants submitted in support of dismissal that, for the most part, highlighted the absence of any contacts between Defendants and Washington. Most Defendants swore that they never sold any CRTs in Washington, never entered Washington, never hired employees in Washington, and never transacted any business in Washington. Based on these uncontroverted facts, Defendants did not purposefully avail themselves of the benefits of doing business in Washington.

¶69 Several of our sister and lower courts have come to the same conclusion. In Holder, plaintiffs sued foreign manufacturers for conspiring to fix the price of citric acid, which resulted in higher prices for District of Columbia consumers buying products containing that ingredient. 779 A.2d at 267. The court applied the “stream of commerce” test and held that it lacked personal jurisdiction over the nonforum manufacturers. Id. at 269. To hold otherwise, the court explained, would be to find that the defendants could be haled into court anywhere in the world that a product containing any amount of citric acid produced by the defendants was ultimately sold. Id. at 267. Extending global jurisdiction to all component part manufacturers, the court found, would offend due process clause protections. Id.

¶70 The South Dakota Supreme Court applied the “stream of commerce” test and came to the same conclusion—no personal jurisdiction—on similar facts in Frankenfeld. 697 *205N.W.2d at 385-87. In Frankenfeld, plaintiffs alleged that out-of-state manufacturers conspired to fix the price of rubber processing chemicals and that the conspiracy caused South Dakota residents to pay supracompetitive prices for rubber tires (that were manufactured elsewhere with those chemicals but purchased in state). Id. at 380-81. The court found the defendants’ connections to South Dakota were too attenuated to support jurisdiction because those defendants never delivered their products—the chemicals—into the stream of commerce with the expectation that they would be purchased by consumers in South Dakota, and indeed their products—the chemicals—were not purchased by South Dakotans. Id. at 386. Instead, direct purchasers used the defendants’ products (chemicals) to manufacture different products (tires) and those direct purchasers then sent those tires to South Dakota. Id. This was such an “extremely attenuated connection” that it could not support jurisdiction. Id. at 387.

¶71 The Kansas Supreme Court applied the same “stream of commerce” test in Merriman and came to the same conclusion—that it lacked jurisdiction—in a similar antitrust case filed by indirect purchasers against manufacturers of rubber processing chemicals. 282 Kan. at 470. Like the South Dakota court, the Kansas court based this decision on the fact that the manufacturer of the plaintiffs’ tires did not operate in Kansas and that there was no indication that the defendants had any control over or collaboration with the tire manufacturers about where they marketed their tires. Id.

¶72 These cases illustrate that regardless of whether we apply the “effects” test for intentional acts articulated in Colder and Walden or the “stream of commerce” analysis articulated in World-Wide Volkswagen, the result is the same: Washington courts lack personal jurisdiction over any of Defendants, except SDI Defendants.

*206III. THE MAJORITY ERRS IN IGNORING DEFENDANTS’ DECLARATIONS

¶73 The majority reaches a contrary result in part by ignoring Defendants’ declarations. Majority at 183-85.

¶74 The majority’s approach is inconsistent with Washington cases stating that once the defendant files a CR 12(b)(2) motion challenging jurisdiction based on affidavits and discovery, the plaintiff must present evidence establishing a prima facie showing of jurisdiction. See Precision Lab. Plastics, Inc. v. Micro Test, Inc., 96 Wn. App. 721, 725, 981 P.2d 454 (1999); MBM Fisheries, Inc. v. Bollinger Mach. Shop & Shipyard, Inc., 60 Wn. App. 414, 418, 804 P.2d 627 (1991); see also Outsource Servs. Mgmt., LLC v. Nooksack Bus. Corp., 172 Wn. App. 799, 807, 292 P.3d 147 (2013) (“Once challenged, the party asserting personal jurisdiction bears the burden of proof to establish its existence.”), aff’d, 181 Wn.2d 272, 333 P.3d 380 (2014).

¶75 In fact, we have held that when the court considers matters outside the pleadings in ruling on a motion to dismiss for lack of personal jurisdiction, the court should treat the motion as one for summary judgment and view the facts in the light most favorable to the nonmoving party, not ignore all contrary facts as the majority does. See Failla v. FixtureOne Corp., 181 Wn.2d 642, 648 n.1, 649, 336 P.3d 1112 (2014), cert. denied, 135 S. Ct. 1904 (2015); FutureSelect Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc., 180 Wn.2d 954, 959, 331 P.3d 29 (2014); Beaman v. Yakima Valley Disposal, Inc., 116 Wn.2d 697, 701 n.3, 807 P.2d 849 (1991); see also Schumacher Painting Co. v. First Union Mgmt., Inc., 69 Wn. App. 693, 698, 850 P.2d 1361 (1993); Carrigan v. Cal. Horse Racing Bd., 60 Wn. App. 79, 83 n.3, 802 P.2d 813 (1990); Access Rd. Builders v. Christenson Elec. Contracting Eng’g Co., 19 Wn. App. 477, 481, 576 P.2d 71 (1978); Puget Sound Bulb Exch. v. Metal Bldgs. Insulation, Inc., 9 Wn. App. 284, 288-89, 513 P.2d 102 (1973).

*207¶76 These decisions comport with the approach that the federal courts typically use when applying Fed. R. Civ. P. 12.21 They permit a trial court to consider material outside the pleadings and to exercise discretion when deciding the proper procedure to resolve whether personal jurisdiction exists.22

¶77 We applied essentially this analysis in FutureSelect, 180 Wn.2d at 959. In that case, we considered whether a New York defendant had sufficient minimum contacts with Washington to support personal jurisdiction. The trial court dismissed on the pleadings after holding a hearing; considering numerous pleadings, declarations, and briefs; and hearing arguments in favor of dismissal, including a CR *20812(b)(2) argument. This court reversed, stating that “[a]t this stage of litigation, the allegations of the complaint establish sufficient minimum contacts to survive a CR 12(b)(2) motion. However, [defendant] may renew its jurisdictional challenge after appropriate discovery has been conducted.” Id. at 963 (emphasis added). We explained that in some cases it may be appropriate for the trial court to delay ruling on a CR 12(b)(2) motion to allow for limited jurisdictional discovery: “Though we leave open [defendant] ⅛ ability to renew its motion, we find the trial court dismissed prematurely. Some limited discovery and a resolution of disputed jurisdictional facts are warranted.” Id. at 966. We directed the trial court on remand to permit jurisdictional discovery and, if necessary, hold a jurisdictional hearing to resolve any contested material facts. Id. at 972.

¶78 I acknowledge that we did not explicitly address whether the CR 12(b)(2) motion would essentially be converted to a CR 56 motion at that point. But we have addressed that question in the past, and we have said that the answer is yes. See Beaman, 116 Wn.2d at 701 n.3 (“Because the trial court received matters outside the pleadings, Valley’s CR 12(b) motion to dismiss for lack of jurisdiction is treated on review as a summary judgment motion and the facts are viewed in the light most favorable to Beaman.”).

¶79 The majority’s decision to analogize the CR 12(b)(2) jurisdictional inquiry to the CR 8(a)(1) notice pleading inquiry strays from the approach of that prior precedent. Majority at 183. I would not stray from this approach, especially without any showing that it is incorrect and harmful. It allows the threshold jurisdictional question to be answered more quickly and efficiently. The trial court *209therefore properly considered Defendants’ declarations in ruling on jurisdiction. CP at 597.23

CONCLUSION

¶80 The trial court lacked personal jurisdiction over all Defendants except SDI Defendants. I would therefore reverse the Court of Appeals and reinstate the trial court’s dismissal of the complaint with prejudice as to all but SDI Defendants.

Madsen, C.J., and Owens, J., concur with Gordon McCloud, J.

CRTs (cathode ray tubes) are a form of display technology that was widely used in televisions and computer monitors until the introduction of LCD (liquid crystal display) and LED (light-emitting diode) displays.

Some defendants did not challenge Washington’s jurisdiction. The relevant defendants here are Koninklijke Philips Electronics NV, Philips Electronics Industries (Taiwan) Ltd., LG Electronics Inc., Samsung SDI Co. Ltd., Samsung SDI America Inc., Samsung SDI Mexico SA de CV, Samsung SDI Brasil Ltda., Shenzhen Samsung SDI Co. Ltd., Tianjin Samsung SDI Co. Ltd., and Samsung SDI (Malaysia) Sdn. Bhd. (Defendants).

Under RCW 19.86.030, “[e]very contract, combination, in the form of trust or otherwise, or conspiracy in restraint of trade or commerce is hereby declared unlawful.” The legislature patterned this provision after the federal Sherman Act, 15 U.S.C. § 1. When the Washington Legislature passed the Consumer Protection Act, ch. 19.86 RCW, it intended for our courts to be guided by the interpretation that the federal courts give to the corresponding federal statutes. RCW 19.86.920. Federal courts apply two tests to evaluate conduct that allegedly violates the Sherman Act. Both tests require proof of intentional wrongdoing. Arizona v. Maricopa County Med. Soc’y, 457 U.S. 332, 344-45, 102 S. Ct. 2466, 73 L. Ed. 2d 48 (1982) (plurality opinion) (per se price-fixing violations of Sherman Act section 1); Reid Bros. Logging Co. v. Ketchikan Pulp Co., 699 F.2d 1292, 1296 (9th Cir. 1983) (non-per-se violations).

There is one exception. Three defendants (Shenzhen Samsung SDI Co. Ltd., Samsung SDI Brasil Ltda., and Samsung SDI (Malaysia) Sdn. Bhd. (collectively SDI Defendants) submitted declarations admitting that they shipped CRT component parts to a manufacturer in Washington during the alleged conspiracy period. CP at 206.

This is probably because the State’s complaint clearly fails Justice O’Connor’s “stream of commerce plus’’ test, which requires that the defendant either designed its product for or actually marketed its products in the forum state. As Justice O’Connor explained in Asahi, “[T]he placement of a product into the stream of commerce’’—even hundreds of thousands of it—“without more, is not an act of the defendant purposefully directed toward the forum State.’’ Asahi, 480 U.S. at 112. Here, the State has not alleged that Defendants marketed in Washington State or designed their products to target Washington purchasers. On the contrary, the complaint alleged that Defendants had agreed to use uniform CRT designs in order to make it easier for them to monitor their agreement to fix prices for identical items. CP at 13. This is not enough to satisfy O’Connor’s “plus” factor.

The majority declines to consider whether the Calder “effects” test is the proper test to apply on the ground that that issue is not properly presented. Majority at 182 n.4. But the question presented is whether the State alleged sufficient minimum contacts with Defendants for a Washington court to assert personal jurisdiction over them. To answer that minimum contacts question, we must first decide which minimum contacts test applies. And Defendants did cite Walden s minimum contacts rule. Suppl. Br. of Pet’rs at 15-17 (“In Walden v. Fiore, the Court reaffirmed the principle that personal jurisdiction must be grounded in actions by the defendant, not those by the plaintiff or third parties.”). Amicus United States Chamber of Commerce then expressly argued that we should apply Walden, rather than the stream of commerce decisions, to this case. Amicus Br. of *194U.S. Chamber of Commerce at 9-11 (“The rule adopted by the court of appeals cannot be reconciled with Walden s requirement that the defendant itself create a connection with the forum.’’).

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971).

Citation to these unpublished cases is permitted pursuant to GR 14.1(b) and Fed. R. App. R 32.1 (permitting citation to federal decisions issued on or after January 1, 2007).

Citation to these unpublished cases is permitted pursuant to GR 14.1(b) and N.D. Cal. Civ. Local R. 3-4(e).

There is one exception. SDI Defendants submitted declarations admitting that they shipped CRT component parts to a manufacturer in Washington during the time of the alleged conspiracy. CP at 206. This is sufficient conduct “expressly aimed’’ at Washington to confer jurisdiction in Washington over SDI Defendants. See Vitamins, 270 F. Supp. 2d at 32-33 (finding specific personal jurisdiction in Kansas under the “effects” test based on the defendant’s sale of price-fixed choline chloride products in Kansas over a four-year period).

Federal courts have identified the United States as the relevant forum in federal antitrust actions under the Sherman Act. E.g., Go-Video, Inc. v. Akai Elec. Co., 885 F.2d 1406, 1415-17 (9th Cir. 1989); CRT Antitrust Litig., 27 F. Supp. 3d at 1008.

The majority infers from the State’s complaint an allegation of control over the pricing of CRT Products where none exists. Majority at 184 n.5. The State’s *201complaint alleged that “Defendants also agreed on the prices at which some of the Defendants would sell CRTs to their own corporate subsidiaries and affiliates that manufactured CRT Products.’’ CP at 20 (emphasis added). The State did not allege that Defendants had control over or made agreements regarding the price of CRT Products.

Koninklijke Philips Electronics NV, Philips Electronics Industries (Taiwan) Ltd., LG Electronics Inc., Samsung SDI America Inc., Samsung SDI Mexico SA de CV, Shenzhen Samsung SDI Co. Ltd., and Tianjin Samsung SDI Co. Ltd.

The Court of Appeals in this case declined to apply this analysis based on the additional language in our state rule, which provides that “ ‘[i]f, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by rule 56.’ ” State v. LG Elecs., Inc., 185 Wn. App. 394, 404, 341 P.3d 346 (emphasis omitted) (quoting CR 12(b)), review granted, 183 Wn.2d 1002, 349 P.3d 856 (2015). But the federal rule contains basically the same language in a slightly different spot at Fed. R. Civ. P. 12(d), so that supposed distinction fails.

See Toys “R" Us, Inc. v. Step Two, SA, 318 F.3d 446, 456 (3d Cir. 2003) (explaining that although plaintiff bears the burden of demonstrating facts supporting personal jurisdiction, courts are to assist the plaintiff by allowing jurisdictional discovery unless the claim is clearly frivolous (citing Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002) and quoting Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, 107 F.3d 1026, 1042 (3d Cir. 1997)));& Data Disc, Inc. v. Sys. Tech. Assocs., 557 F.2d 1280, 1285 (9th Cir. 1977) (A defendant may move, before trial, to dismiss the complaint for lack of personal jurisdiction, and because there is no statutory method for resolving this issue, the mode of its determination is left to the trial court.); Krepps v. Reiner, 588 F. Supp. 2d 471, 479 (S.D.N.Y. 2008) (“In deciding a pretrial motion to dismiss for lack of personal jurisdiction, the Court has ‘considerable procedural leeway. It may determine the motion on the basis of affidavits alone; or it may permit discovery in aid of the motion; or it may conduct an evidentiary hearing on the merits of the motion.’ ’’ (quoting Marine Midland Bank, NA v. Miller, 664 F.2d 899, 904 (2d Cir. 1981))); Allen v. Russian Fed’n, 522 F. Supp. 2d 167, 181-82 (D.D.C. 2007) (“In contrast to a Motion to Dismiss brought under Fed.R.Civ.P. 12(b)(6), the Court need not treat all of Plaintiffs’ allegations as true when determining whether personal jurisdiction exists over Defendants. Instead, the Court ‘may receive and weigh affidavits and any other relevant matter to assist it in determining the jurisdictional facts.’ ’’ (quoting United States v. Philip Morris, Inc., 116 F. Supp. 2d 116, 120 n.4 (D.D.C. 2000))).

The State did ask for jurisdictional discovery in response to Defendants’ motions to dismiss. See CP at 226-27, 239-40, 252-53, 265-66; Pet. for Review at 125-26. The trial court denied that request, but it did so because the State had failed to explain what relevant facts it would seek that might contradict Defendants’ declarations. Pet. for Review at 137-38. This is likely because the Defendants’ declarations did not contradict the complaint’s stream of commerce type allegations, but gave other relevant information. CP at 40-42, 56-64, 84-86, 104-06, 203-06. The trial court’s decision seems well within its discretion: as both the majority and this dissent show, the jurisdictional question in this case is a legal question on essentially undisputed facts about the limited direct contacts between Defendants and this state.