State of Texas v. Arity 875, LLC

ACCEPTED
15-25-00082-CV
No. 15-25-00082-CV FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
In the Court of Appeals 9/15/2025 3:46 PM
CHRISTOPHER A. PRINE

for the Fifteenth Judicial District FILED IN CLERK

Austin, Texas 15th COURT OF APPEALS
AUSTIN, TEXAS
9/15/2025 3:46:35 PM
CHRISTOPHER A. PRINE
State of Texas, Clerk
Appellant,
v.
Arity 875, LLC,
Appellee.

On Appeal from the 457th Judicial District Court, Montgomery County

APPELLANT’S REPLY BRIEF

Ken Paxton Rick Berlin
Attorney General of Texas Assistant Attorney General
State Bar No. 24055161
Brent Webster Rick.Berlin@oag.texas.gov
First Assistant Attorney General
Office of the Attorney General
Ralph Molina Consumer Protection Division
Deputy First Assistant Attorney General 808 Travis Street Suite 1520
Houston, Texas 75251
Austin Kinghorn Tel: (800) 621-0508
Deputy Attorney General for
Civil Litigation

Johnathan Stone
Chief, Consumer Protection Division
Counsel for Appellant

ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellant: Appellate and Trial Counsel:

State of Texas Rick Berlin
Assistant Attorney General
State Bar No. 24055161
Rick.Berlin@oag.texas.gov

Kaylie Buettner
Assistant Attorney General
State Bar No. 24109082
Kaylie.Buettner@oag.texas.gov

Richard McCutcheon
Assistant Attorney General
State Bar No. 24139547
Richard.McCutcheon@oag.texas.gov

Office of the Attorney General of Texas
Consumer Protection Division
808 Travis St., Suite 1520
Houston, Texas 77002

Appellee: Appellate and Trial Counsel:

Arity 875, LLC W. Reid Wittliff
State Bar No. 00791951
WITTLIFF CUTTER PLLC
510 Baylor St.
Austin, Texas 78703
Telephone: (512) 960-4866
Facsimile: (512) 960-4869
Email: reid@wittliffcutter.com

2
Jake Sommer
Kelsey Harclerode
ZWILLGEN PLLC
1900 M Street NW, Suite 250
Washington, D.C. 20036
Telephone: (202) 296-3585
Email: jake@zwillgen.com
kelsey@zwillgen.com

Sudhir V. Rao
ZWILLGEN PLLC
183 Madison Ave., Suite 1504
New York, NY 10016
Telephone: (646) 362-5590
Email: sudhir.rao@zwillgen.com

3
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ......................................................... 2
INDEX OF AUTHORITIES .................................................................................. 5
INTRODUCTION.................................................................................................. 8
ARGUMENT .......................................................................................................... 9
I. VOLKSWAGEN CONTROLS. .......................................................................... 9
A. Arity 875’s Data Collection Creates Minimum Contacts with
Texas under Volkswagen. .................................................................... 10
B. Arity 875’s “Distributor Intermediary” Relationship with the
App Developers Creates Minimum Contacts under
Volkswagen. ......................................................................................... 11
II. ARITY 875’S ARGUMENTS CONCERNING ITS DATA COLLECTION
LACK MERIT. ............................................................................................ 12
A. Data Collection without Consent Is Not an “Out-Of-State
Omission.” ......................................................................................... 13
B. Arity 875, not the App Developers or Users, Decides
Whether It Collects Data. ...................................................................16
III. ARITY 875 CANNOT DISTINGUISH ITS ACTIONS FROM
VOLKSWAGEN. .......................................................................................... 20
A. Volkswagen’s “Stream of Commerce” Framework Applies. ............ 21
B. Arity 875’s Conduct Fits Volkswagen’s “Stream of
Commerce” Framework. ................................................................... 22
IV. ARITY 875 MISAPPLIES GOOGLE. ............................................................... 23
V. ARITY 875’S REMAINING ARGUMENTS ARE MISCELLANEOUS
DISTRACTIONS. ......................................................................................... 28
PRAYER ................................................................................................................. 31
CERTIFICATE OF COMPLIANCE..................................................................... 31

4
INDEX OF AUTHORITIES

CASES

Alves v. Goodyear Tire & Rubber Co.,

683 F. Supp. 3d 111 (D. Mass. 2023), appeal dismissed, No. 23-1682, 2023 WL

9782813 (1st Cir. Dec. 18, 2023) ........................................................................ 30
Anderson v. Bechtle,

No. 01-00-00593-CV, 2001 WL 930205 (Tex. App.—Houston [1st Dist.] 2001,

no pet.) ............................................................................................................... 16
Brocail v. Anderson,

132 S.W.3d 552 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) ............. 16

BRP-Rotax GmbH & Co. KG v. Shaik,
716 S.W.3d 98 (Tex. 2025) .......................................................................... passim

Chen & DynaColor, Inc. v. Razberi Techs., Inc.,

No. 05-19-01551-CV, 2022 WL 16757346 (Tex. App.—Dallas Nov. 8, 2022, pet.

denied) .......................................................................................................... 14, 15

Dalal v. Clearview AI, Inc.,

No. CV 24-10380-SDW-AME, 2025 WL 1726259 (D.N.J. May 1, 2025), report
and recommendation adopted, No. CV 24-10380 (SDW) (AME), 2025 WL

1725010 (D.N.J. June 20, 2025) ......................................................................... 29

Hindujab Glob. Sol., Inc. v. Ganjaei,

No. 05-22-00052-CV, 2023 WL 179808 (Tex. App—Dallas Jan. 13, 2023, pet.

denied) ............................................................................................................... 14

5
Jackson v. Hoffman,

312 S.W.3d 146 (Tex. App.—Houston [14th Dist.] 2010, no pet.) .............. 25, 26

Johnson v. TheHuffingtonPost.com, Inc.,

21 F.4th 314 (5th Cir. 2021) ............................................................................... 19

Luciano v. SprayFoamPolymers.com, LLC,

625 S.W.3d 1 (Tex. 2021) ...................................................................11, 21, 22, 23

McDonald v. Kiloo ApS,

385 F. Supp.3d 1022 (N.D. Cal. 2019) ......................................................... 28, 29

Mehta v. State ex rel. Ahmed,

716 S.W.3d 186 (Tex. App. [15th Dist.] 2025) .............................................. 15, 16
Moncrief Oil Int’l Inc. v. OAO Gazprom,

414 S.W.3d 142 (Tex. 2013) ............................................................................... 25

Slyce Acquisition Inc. v. Syte – Visual Conception Ltd.,
422 F.Supp.3d 1191 (W.D. Tex. 2019) ................................................................17

State v. Volkswagen Aktiengesellschaft,

669 S.W.3d 399 (Tex. 2023)........................................................................ passim

STATUTES

Tex. Bus. & Com. Code § 509.005 .........................................................................13

Tex. Bus. & Com. Code § 541.101(b)(3) .................................................................13

Tex. Bus. & Com. Code § 541.102 ..........................................................................15

Tex. Bus. & Com. Code § 541.103 ..........................................................................15

Tex. Bus. & Com. Code §§ 541.101(a)–(b) .............................................................15

6
Tex. Civ. Prac. & Rem. Code § 17.042(2) .............................................................. 24

Tex. Civ. Prac. & Rem. Code § 17.042(1) .............................................................. 24

Tex. Ins. Code § 541.001.........................................................................................13

7
INTRODUCTION

On a basic level, Arity 875 asks this Court to permit it to collect sensitive data

directly from millions of Texans’ phones but not be subject to Texas’ jurisdiction

because it collects the data through third-party apps. No court approves this

understanding of personal jurisdiction, and the Texas Supreme Court expressly

rejected it in Volkswagen. Arity 875 tries to avoid that simple conclusion with a

lengthy argument composed of meaningless distinctions and distractions. Arity

875’s sidestepping of the State’s core allegations and reinvention of the State’s case

reveal its fundamental inability to square its conduct with the law. When viewed

against binding precedent, undisputed facts, and well-established principles of

personal jurisdiction, Arity 875’s arguments fall short.

Arity 875 does not dispute the relevant evidence. First, Arity 875 continuously

collects data from Texas devices. Arity Br. 5; Am. C.R. at 58, 68, 82 ¶ 9; State Br.

13–14. Second, its contracts require Texas companies to install software that

captures driving behavior data–the Arity software development kit (“Arity SDK”)–

in their mobile apps, which Arity 875 then uses to collect data from Texas devices.

Arity Br. 7, 17; Am. C.R. at 216–17 ¶¶ 38–41; State Br. 14–16. Finally, Arity 875

purchases information concerning Texas individuals from Texas-based companies,

Arity Br. 52 (acknowledging receipt of Texans’ personal identifying data through

8
licensing); Am. C.R. at 217 ¶ 42; State Br. 15. Further, Arity 875 itself admits that it

provides “services” to Texas, notwithstanding attempts to obscure what such

“services” are and whether they are “relevant.” See Arity Br. 4, 40; Am. C.R. at 82

¶ 9; State Br. 13–14. All these Texas contacts substantially relate to the State’s

claims.

The Court need not reinvent the wheel here. Although this is a complex,

multi-party case concerning sophisticated technology, whether Arity 875 should be

subject to personal jurisdiction remains simple. Because the State alleges Arity 875

violated Texas law by unlawfully collecting and processing Texans’ data from Texas

devices, Texas courts should hear Texas’ claims.

ARGUMENT

I. VOLKSWAGEN CONTROLS.

Volkswagen requires finding for the State. See State v. Volkswagen

Aktiengesellschaft, 669 S.W.3d 399 (Tex. 2023). The State explained in its brief that

Arity 875’s conduct falls within Volkswagen’s scope in at least two ways, each

independently sufficient for this Court to exercise jurisdiction. First, Arity 875’s data

collection in Texas using the Arity SDK directly creates minimum contacts with

Texas. Second, Arity 875 established a distribution chain that guaranteed that its

software would land in Texas. Similar to the software updates in Volkswagen, Arity

9
875 creates Texas contacts through a “distributor-intermediary” relationship with

the app developers. See id. at 432.

A. Arity 875’s Data Collection Creates Minimum Contacts with Texas
under Volkswagen.

Thousands of times every day, Arity 875 reaches into the phones of Texans

and takes data that tracks their movements in Texas. The fact that they do this to

citizens in every state does not make their Texas conduct any less egregious,

invasive, or worthy of judicial review. Arity 875 does not dispute that it collects data

from Texas phones using the Arity SDK as part of a nationwide scheme. See, e.g.,

Am. C.R. at 67 (“[T]he challenged data collection affected Texans in the same way

it did residents of all other states[.]”), 82 (“[T]he challenged data collection

occurred nationally.”). That admission shows Arity 875 made the decision to collect

data from Texas phones and create Texas contacts. Am. C.R. at 206 ¶ 2, 214 ¶ 31

(Arity maintains three million connections with Texas). But Arity 875’s intentional

targeting of Texans doesn’t end there: Arity 875 also highlights Texas data on its

website for marketing purposes. Am. C.R. at 219 ¶ 44.

By choosing to collect data from Texas devices, Arity 875 “purposefully

availed itself to the privilege of conducting activities in Texas.” See Volkswagen, 669

S.W.3d at 413 (internal citation omitted). Arity 875 is not insulated from personal

jurisdiction “merely because the defendant has targeted other states in a similar

10
manner.” See id. at 421; compare Volkswagen, 669 S.W.3d at 420 (rejecting the idea

that “a nonresident who has directed activity to every state is not amenable to

jurisdiction in any state”), with Am. C.R. at 82 (“[Arity 875’s] services are equally

available in Texas as they are in all other States.”). The collection relates to the

State’s claims because all the State’s claims against Arity 875 stem from Arity 875’s

collection of data from the Arity SDK. See Volkswagen, 669 S.W.3d at 430 (requiring

an “affiliation” between the forum and underlying controversy); State Br. 41–44

(explaining “affiliation” prong). Arity 875 created Texas contacts by directly

interfacing with Texas devices and specifically marketing its Texas data to

customers.

B. Arity 875’s “Distributor Intermediary” Relationship with the App
Developers Creates Minimum Contacts under Volkswagen.

Arity 875 also exerts control over the third-party apps to implement the Arity

SDK the same way Volkswagen exerted control over its dealerships to implement its

software updates. Acting through a “distributor-intermediary” to intentionally

target Texas as a marketplace “provides no haven from the jurisdiction of a Texas

court.” Volkswagen, 669 S.W.3d at 418 (quoting Luciano v. SprayFoamPolymers.com,

LLC, 625 S.W.3d 1, 12 (Tex. 2021)). Just like in Volkswagen, Arity 875 has a

“contractual relationship the parties designed with regard to the specific mechanism

by which the wrongful conduct occurred in Texas.” Id. at 419.

11
In Volkswagen, the contractual relationship came from Volkswagen

Germany’s subsidiary dealerships, which were used as “passthrough departments”

to initiate Volkswagen Germany’s software updates. Id. at 418. Here, Arity 875

contracted with mobile app developers acting as “a mere conduit” to install the Arity

SDK on mobile devices on the “behalf of and at the initiation of” Arity 875. See id.

at 415; Am. C.R. at 207 ¶ 5, 216–17 ¶¶ 38–41.

Given Volkswagen and Arity 875’s near-identical contractual arrangements

with third parties, the Court should hold Arity 875 used the third-party apps as a

“distributor-intermediary” to target Texas consumers.

II. ARITY 875’S ARGUMENTS CONCERNING ITS DATA COLLECTION LACK
MERIT.

Nonetheless, Arity 875 offers a litany of excuses as to why the Court should

not consider its conscious decision to collect data from, and maintain continuous

connections with, nearly three million Texas individuals’ phones to constitute

sufficient Texas contacts. None have merit. Arity 875’s workarounds take two

general forms: (1) recharacterizing its collection without consent as an “omission”

rather than an affirmative act that creates a Texas contact, and (2) shunting

responsibility for where it collects data to the apps and its users. But Arity 875, not

the app developers or their users, makes the deliberate, affirmative decision to reach

into Texas to collect Texans’ data. That fact controls.

12
A. Data Collection without Consent Is Not an “Out-Of-State
Omission.”

All agree that Arity 875 collects data from Texans’ mobile phones and

purchases Texas data. The core controversy is whether Arity 875 had the legal right

to perform those acts without obtaining consent, posting adequate disclosures, or

registering as a data broker in Texas. Arity 875 claims its collection of data without

permission is an “out-of-state omission,” reasoning that, because Texas law does

not prohibit data collection, with appropriate consent, the only acts that could relate

to the State’s claims are its “failure to provide the required information or obtain the

required consent” or “failure to register.” Arity Br. 43, 51, 53–54. From there, Arity

875 asserts that collection of Texas data does not relate to the State’s claims in this

lawsuit about illicit data collection. But Arity 875’s actions and inactions are

inextricably linked together.

Arity 875’s collection of data creates the Texas contacts, and that collection

without consent renders its conduct illegal. See, e.g., Tex. Bus. & Com. Code §

541.101(b)(3) (imposing a duty on a data controller to not process sensitive data

without consent); Tex. Bus. & Com. Code § 509.005 (requiring registration when

conducting business in the State of Texas); Tex. Ins. Code § 541.001 (imposing

liability for unfair acts in the business of insurance stemming from unfair data

collection practices). Arity 875’s response distracts from the core inquiry by focusing

13
on the “consent” and “disclosure” requirements without addressing Arity 875’s

underlying actions. See Arity Br. 43. Arity 875’s argument does not meaningfully

counter or negate the idea that collecting data from Texas creates Texas contacts.

Instead, Arity 875 cherry-picks a series of quotes from unrelated cases. For

example, Arity 875 leads with the Fifth Court of Appeals’ non-binding statement

that “failure to disclose cannot be purposeful availment.” Hindujab Glob. Sol., Inc.

v. Ganjaei, No. 05-22-00052-CV, 2023 WL 179808, at *6 (Tex. App—Dallas Jan. 13,

2023, pet. denied). But Ganjaei involved an out-of-state defendant that allegedly

failed to disclose that he possessed a conflict of interest adverse to a Nevada

company that was based in Texas. Id. at *1, *6. He had no connection with Texas,

unlike the millions of connections Arity 875 purposefully created here.

Similarly, Arity 875 references another Fifth Court of Appeals case denying

personal jurisdiction over a Taiwan-based defendant for claims of an alleged failure

to disclose a conflict of interest to third-party investors. See Chen & DynaColor, Inc.

v. Razberi Techs., Inc., No. 05-19-01551-CV, 2022 WL 16757346, at *8 (Tex. App.—

Dallas Nov. 8, 2022, pet. denied). There, the court relied not on the location but the

fact that the defendant had no duty to disclose the alleged conflict. See id. (“Thus,

without more, such as a specific duty to disclose, we cannot conclude that appellants’

conduct of sitting mute in Taiwan constitutes directing a tort at Texas or arises from

14
or relates to their contacts with Texas.”) (emphasis added). Outside the fact that

Arity 875 collects Texas data from Texas devices, Arity 875 has a specific duty to

disclose under the TDPSA. Tex. Bus. & Com. Code §§ 541.101(a)–(b) (requiring

limitation of data processing based on what was disclosed and informed consent

before collection of sensitive data), 541.102 (requiring privacy notice disclosing

privacy practices), 541.103 (requiring conspicuous disclosure of targeted advertising

process and opt-out option). Arity 875 omits the unfavorable “without more”

language from its version of the quote in its brief, which the Chen court intimates

would change the analysis. Compare Chen, 2022 WL 16757346, at *8, with Arity Br.

at 42.

Arity 875 also references Mehta v. State ex rel. Ahmed, where this Court

rejected personal jurisdiction where a non-resident, who made drug manufacturing

decisions in New Jersey, entered into a marketing agreement with Pfizer, who later

sold the drug in Texas. 716 S.W.3d 186, 190 (Tex. App. [15th Dist.] 2025). Arity

875’s reliance on Mehta misconstrues the nature of the relationship Arity 875 has

with the mobile apps. See Arity Br. 42. Mehta’s “decisions about drug

manufacturing outside of Texas [were] not contacts with Texas,” particularly where

Pfizer sold the drug without Mehta’s involvement. See Mehta, 716 S.W.3d at 190.

Arity 875 claims that its actions are like Mehta’s, who made the decision about drug

15
manufacturing from afar in New Jersey and that the apps are Pfizer, responsible for

distribution without Mehta’s input. See id. But unlike in Mehta, the undisputed facts

show that Arity 875 itself connects to Texans’ devices, collects their data through

the Arity SDK, and uses the third-party apps as the vessels for that connection. The

two cases are factually and fundamentally distinguishable.

Arity 875’s remaining authorities are likewise factually distinct. See, e.g.,

Brocail v. Anderson, 132 S.W.3d 552, 564 (Tex. App.—Houston [14th Dist.] 2004,

pet. denied) (rejecting personal jurisdiction for a medical negligence, fraud, and

fraudulent concealment for doctor who performed surgery and prescription plans in

Michigan); Anderson v. Bechtle, No. 01-00-00593-CV, 2001 WL 930205, at *2 (Tex.

App.—Houston [1st Dist.] 2001, no pet.) (rejecting personal jurisdiction for non-

resident individual corporate officers and directors alleged misrepresentations with

no Texas contacts and no duty to disclose). Unlike these cases, Arity 875 performs

data collection in Texas.

B. Arity 875, not the App Developers or Users, Decides Whether It
Collects Data.

Arity 875 attempts to further muddy the waters by casting its deliberate

decision to collect data in Texas as one made by the third-party mobile apps and

Texas consumers. Arity 875 claims that, because it does not maintain complete

control over the apps’ data collection requirements, its contacts with Texas are

16
either “random and fortuitous” or result from “nonparties’ unilateral conduct.” See

Arity Br. 3, 27. This fails many times over.

First, Arity 875 retains ultimate control over whether Arity 875 collects data in

Texas. Arity 875 deliberately developed a system to collect data from individual

phones. If Arity 875 did not want to collect data from or create a continuous

connection with Texas phones, it could decide not to do so. It is certainly within their

power not to maintain three million connections with individual phones in Texas.

Am. C.R. at 206 ¶ 2, 214 ¶ 31. These Texas contacts cannot be chalked up to

“random contacts” or the “unilateral activity of another party,” because Arity 875

created a structured plan for who, what, when, where, and how it would collect data.

The discretion to collect data from Texas lies with Arity 875, not any other party.

Second, Arity 875 contracted with third-party mobile apps to integrate the

Arity SDK into their apps to exploit these apps’ existing userbases. See Volkswagen,

669 S.W.3d at 422 (“[T]heir contacts reflect both an expectation that the software

updates would be deployed in Texas and a clear choice to enter the Texas market

where a substantial number of targeted vehicles would be serviced.”); see also Slyce

Acquisition Inc. v. Syte – Visual Conception Ltd., 422 F.Supp.3d 1191, 1201 (W.D. Tex.

2019) (upholding personal jurisdiction based on distribution of apps through iTunes

17
and Google Play servers). Here, Arity 875 had an expectation that its software would

be deployed in Texas and made a clear choice to enter the Texas market.

Arity 875 argues that because the mobile apps “license” the Arity SDK from

Arity 875, responsibility falls on the apps. See, e.g., Arity Br. 38–39. But Arity 875

pays the apps to “license” the Arity SDK and gain access to the apps’ data. Am. C.R.

at 207, ¶ 5 (“Defendants paid app developers millions of dollars to integrate

Defendants’ software into their apps”). The Arity SDK’s presence on Texas mobile

devices are not the “unilateral acts” of the third-party mobile apps or “random or

fortuitous,” but instead the result of Arity 875 directing the mobile apps to undertake

collection on its behalf.

Third, and consistent with this arrangement, the fact that Arity 875 requires

certain inputs from the end user to enable data collection does not change the

outcome. Once those criteria are met, the Arity SDK turns on automatically, and

Arity 875 reaches into Texas to collect data from Texas phones. Arity 875 determines

what conditions are necessary for the Arity SDK to switch on and thereby

determines when it wants to contact Texas. See, e.g., Am. C.R. at 58 (requiring

mobile apps to warrant the data was lawfully collected), 216 ¶ 39 (noting a user

enabling location features permits the Arity SDK to function, undetected). These

are not “random and fortuitous” contacts “beyond Arity 875’s control” but rather

18
a clear set of conditions that allow Arity 875 to purposefully choose when it wants to

collect data. Contra Arity Br. 27.

Finally, the apps that embed the Arity SDK are not akin to a “universally

accessible website,” nor is the Arity SDK itself. Contra Arity Br. 29. Unlike a website

which passively exists, and a user can visit and leave at his or her discretion, Arity

875 reaches into Texans’ phones every fifteen seconds to collect data so long as an

app with the Arity SDK is installed. Further, the apps and the Arity SDK do not

operate like mere “passive” websites but instead provide specific services to end-

users, some of which are powered by the Arity SDK. See BRP-Rotax GmbH & Co.

KG v. Shaik, 716 S.W.3d 98, 109 (Tex. 2025) (noting distinction between “passive”

and “active” websites for personal jurisdiction purposes). Outside of the continuous

data collection, the Arity SDK receives, processes, and sends user data concerning

events such as crash detection. Am. C.R. at 90, ¶ 8–9; Arity Br. 6.

Even if Arity 875’s comparison had merit, the standard that applies to

“interactive” websites would still establish minimum contacts because Arity 875

targets Texas because it both sends and receives information. See, e.g., Johnson v.

TheHuffingtonPost.com, Inc., 21 F.4th 314, 318 (5th Cir. 2021) (“[I]f the site interacts

with its visitors, sending and receiving information from them, we must then apply our

19
usual tests to determine [whether plaintiff’s suit] arise[s] from the defendant’s

purposeful targeting of the forum state.”) (emphasis added).

III. ARITY 875 CANNOT DISTINGUISH ITS ACTIONS FROM VOLKSWAGEN.

Arity 875 has the same type of Texas contacts as Volkswagen yet in greater

quantity. The software updates in Volkswagen were implemented through third-party

intermediaries in discreet nationwide updates with no direct contact to Texas

consumers. Volkswagen, 669 S.W.3d at 410–11. Here, Arity 875 uses the third-party

apps as the medium for an active, continuous connection directly with Texas devices

and as a distribution channel to target Texas consumers. That is more than enough

under the Volkswagen framework.

Arity 875 raises five points against this conclusion. First, Arity 875 states

Volkswagen’s “stream of commerce” framework applies only to “products-liability

cases.” Arity Br. 35. Second, Arity 875 claims Volkswagen Germany had “unique

and pervasive control” over the distribution of its software. Id. at 37. Third, Arity

875 claims the circumstances of when and where the Arity SDK collects data

happen—at least in part—outside Arity 875’s direct control, which is not relevant

because Arity 875 dictates the terms for when it collects data. Id. at 38–39. Fourth,

Arity 875 argues that the Arity SDK’s existence itself does not violate Texas law. Id.

20
at 39. Fifth, Arity 875 claims it does not have relevant Texas contacts. Id. at 39–40.

None have merit and only the first two warrant discussion.

A. Volkswagen’s “Stream of Commerce” Framework Applies.

Arity 875 argues that Volkswagen applies “stream-of-commerce-plus,” which

only applies to products-liability cases, while simultaneously noting Volkswagen is not

even a “stream-of-commerce case.” Arity Br. 35; Shaik, 716 S.W.3d at 110 (noting

Volkswagen was not a “stream-of-commerce” case). The latter view is correct.

Volkswagen itself was not a products-liability case, so the argument that

Volkswagen’s rule applies only to products-liability cases must fail. See 669 S.W.3d at

410–11 (noting the State filed an environmental enforcement action). Arity 875

correctly notes that Volkswagen analogized the stream-of-commerce-plus theory.

Arity Br. 36. And that is what the State asks this Court to do with respect to Arity

875’s Texas contacts arising from its distribution of the Arity SDK. State Br. 31–32.

Arity 875 misreads an offhand remark by the Texas Supreme Court

concerning Luciano in BRP-Rotax GmbH & Co. v. Shaik to avoid Volkswagen’s reach.

716 S.W.3d at 105 (noting that “in certain products liability cases,” plaintiffs “may

leverage the stream-of-commerce plus test”) (citing Luciano, 625 S.W.3d at 9). Arity

claims Shaik imposes a restriction on the Volkswagen rule to limit the application of

21
Volkswagen’s “stream-of-commerce” theory to only products-liability cases. Arity

Br. 35.

Shaik provides no obstacle to using Volkswagen here. First, the Court does not

cite Volkswagen or even express a mechanical rule that “stream-of-commerce plus”

applies only in products-liability cases. See Shaik, 716 S.W.3d at 105. The Court

merely notes that “in certain products liability cases,” the “stream of commerce

test” may be used. Id. Second, even assuming Arity 875’s read of Shaik was correct,

the State urges the same “stream-of-commerce” analogy from Volkswagen, not the

“stream-of-commerce plus” test from Luciano. Finally, Shaik explicitly provides

that a “sovereign prosecuting [a case] for purposefully violating Texas law inside

Texas” provides unique considerations that trigger the application of Volkswagen. Id.

at 110. Arity 875’s contorted reading of Shaik does not change Volkswagen’s on-point

holding.

B. Arity 875’s Conduct Fits Volkswagen’s “Stream of Commerce”
Framework.

Arity 875 claims that Volkswagen could not apply to its conduct because unlike

Volkswagen, Arity 875 does not have “unique and pervasive” control that forces the

third-party apps to install the Arity SDK. Arity Br. 37. First and foremost, Arity 875

does contractually obligate the apps to install the Arity SDK, just like how

Volkswagen Germany obligated its subsidiaries to roll-out software updates. Second,

22
the phrase “unique and pervasive” does not appear anywhere in Volkswagen. The

Court never indicated that the specific level of control Volkswagen Germany had

over its subsidiaries would be required to find jurisdiction and such a constrictive

reading should be rejected.

Rather, the Court indicated that the touchstone for finding personal

jurisdiction comes from the standard established in Luciano. Volkswagen, 669 S.W.3d

at 418. Volkswagen indicates that “acting through a distributor-intermediary” to

intentionally target Texas creates jurisdictional contacts. Id. Much like how

Volkswagen Germany “directly and purposefully” targeted cars in Texas using its

subsidiaries, Arity 875 did the same for Texas mobile devices using the third-party

apps. See Shaik, 716 S.W.3d at 110 (analyzing Volkswagen, 669 S.W.3d at 415, 417,

420). In this respect, the third-party apps were the mere instrumentalities of Arity

875’s illegal acts, much like the dealerships in Volkswagen.

Because Arity 875’s conduct implicates the same “stream-of-commerce”

analogy as Volkswagen, this Court should find personal jurisdiction here for the same

reasons.

IV. ARITY 875 MISAPPLIES GOOGLE.

Arity 875 misconstrues the applicability of Google LLC v. The State of Texas.

In Google, the Court found that there was no activity that occurred within Texas

23
related to the State’s claims and all tortious conduct occurred outside of the state.

Google LLC v. State, No. 13-23-00114-CV, 2025 WL 52611 (Tex. App.—Corpus

Christi–Edinburg Jan. 9, 2025, pet. abated). Here, the State’s claims relate not only

to tortious conduct that took place in Texas but also contracts with Texas entities

that were performed in Texas. Arity 875 misstates that the State’s claims only look

at Arity 875’s policy disclosures and consent statements, completely ignoring their

contracts with third-party mobile apps, vehicle manufacturers, and the collection of

data from mobile devices within Texas.

The Texas long-arm statute states that a nonresident does business in the state

if they contract with a Texas resident and either party completes all or part of the

contract in the state or if they commit a tort “in whole or in part” in Texas. Tex.

Civ. Prac. & Rem. Code §§ 17.042(1) & (2). In Google, the State alleged that Google

violated the Texas Deceptive Trades Practices—Consumer Protection Act (DTPA)

because of their private-browsing activity and location tracking policies. 2025 WL

52611 at *6. There, the Court held that the State did not “…[meet] its initial burden

to show that appellant’s allegedly tortious conduct occurring outside of Texas is

sufficient to confer specific jurisdiction.” Id. at *7. The Court reasoned that

Google’s alleged tortious conduct occurred wholly outside of Texas and “[a]

nonresident directing a tort at Texas from afar is insufficient to confer specific

24
jurisdiction.” Id. (quoting Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142,

157 (Tex. 2013)). Here, Arity 875 erroneously states that “…the State’s allegations

and jurisdictional theories [in Google] are virtually identical to those here,” when

they are not. Arity Br. 46.

The facts underlying the State’s claims in this case raise a stark contrast to

those in Google. Not only does Arity 875 collect and sell Texans’ data, but they have

also contracted with vehicle manufacturers and third-party mobile apps to collect

Texas consumers’ personal data. See Am. C.R. at 214, 216–217, 227, and 230 (Am.

Pet. ¶¶ 31, 38, 40–42, 74, 88, and 90). Specific jurisdiction does not exist if a contract

is performed wholly outside of Texas. Jackson v. Hoffman, 312 S.W.3d 146, 154 (Tex.

App.—Houston [14th Dist.] 2010, no pet.) (holding there was no jurisdiction over a

Missouri auto repair shop who performed restoration services in the Missouri shop

on a vehicle located in Missouri, even if the vehicle’s owner resided in Texas). In

Google, the operative facts dealt solely with the terms of service and disclosures,

which had no nexus to Texas, so all relevant events were outside of Texas. 2025 WL

52611 at *7. Arity 875 mistakenly asserts that the State’s claims here mirror those

made in Google, because the operative facts forming the basis of the claims there

“concerned Google’s allegedly misleading statements,” and “[n]either the

25
allegations nor evidence established” that Google employees within Texas made the

misleading statements. Arity Br. 48.

That is not the fact pattern in this case. Instead, Arity 875 contracted with

third-party mobile app companies, such as GasBuddy and Fuel Rewards, to integrate

the Arity SDK into their apps, which collected the data from the app user. Am. C.R.

at 216–17 (Am. Pet. ¶¶ 38–42). GasBuddy and Fuel Rewards have headquarters in

Dallas, Texas. Am. C.R. at 216 (Am. Pet. ¶ 38). Part of these agreements with the

app companies provided that “Defendants owned any Arity SDK Data they

collected from an app user and were permitted to use the Arity SDK Data for their

own independent purposes.” Am. C.R. at 217 (Am. Pet. ¶ 41). So, Arity 875

contracted with Texas entities and those contracts were performed in Texas.

Additionally, Arity 875 contracted directly with vehicle manufactures to “receive

and access Texans’ driving data.” Am. C.R. at 230 (Am. Pet. ¶ 90). Unlike Google

and Jackson where all the conduct occurred outside of Texas, the collection of

consumers’ data occurred in Texas pursuant to licensing agreements with Texas

entities.

Arity 875 contends that the State’s claims merely arise from “alleged

omissions that occurred, if at all, outside of Texas.” Arity Br. 9. Namely, “the failure

to disclose information to consumers, obtain consumer consent… and register as a

26
data broker in Texas,” completely ignoring the conduct taking place within Texas.

Arity Br. 11. Arity 875 argues that the “challenged disclosure and consent policies

are not substantially connected to Texas,” and all decision-making regarding policies

at issue occur outside of Texas, and the teams involved in developing and licensing

the SDK are also outside of Texas. Arity Br. 44–45. However, contrary to Arity 875’s

insistence, “this is not a ‘directed-a-tort’ case.” State Br. 43. Courts “review the

substantial connection between the operative facts of the litigation based on the

claims involved in the litigation and the defendant’s contacts with Texas.” 2025 WL

52611 at *2. Arity 875 attempts to assert that the State failed to allege that “Arity 875

negotiated or entered contracts with either entity in Texas,” that the apps “had

Texas users,” that the “contracts were to be performed in Texas,” among others.

Arity Br. 7–8. But the State’s allegations make it clear that Arity 875 has entered into

licensing agreements with Texas entities, see Am. C.R. at 216–217, 226–227, and 230

(Am. Pet. ¶¶ 38, 40–41, 72, 74, and 88), and that “Arity 875 has committed torts

within Texas.” State Br. 44.

Arity 875 woefully misreads and misapplies Google both in fact and law. Here,

the contacts, including contracts entered into with vehicle manufacturers and third-

party mobile app developers, are the acts of Arity 875 in Texas and this court should

find that personal jurisdiction exists.

27
V. ARITY 875’S REMAINING ARGUMENTS ARE MISCELLANEOUS
DISTRACTIONS.

Arity 875 makes feeble attempts to distract from the relevant issues at play.

First, Arity 875 asserts that their contacts with Texas are simply related to Texans

that “happened to download and use apps that incorporated the Arity SDK” and

mobile app developers that licensed the Arity SDK. Arity Br. 25–26. Arity 875 tries

to assert that only after developers and mobile app users “have made several

unilateral choices does the Arity SDK collect data.” Arity Br. 27. Arity 875’s

argument misses the mark. As described supra, Arity 875 entered into licensing

agreements with third-party mobile apps. Arity 875 maintained ownership of the data

collected via those apps, so their contacts with Texas are not passive.

Second, Arity 875’s argument regarding the foreseeability of harm falls flat.

Arity 875 throws out a slew of irrelevant case law regarding “universally accessible

websites.” Arity Br. 29. For example, Arity 875 incorrectly asserts that the State is

basing its jurisdictional premise simply on the fact that they knew mobile apps would

have Texas users, Arity Br. 28, and argues that a California court in McDonald v.

Kiloo ApS (denying a finding of jurisdiction over an SDK developer) is informative.

McDonald v. Kiloo ApS, 385 F. Supp.3d 1022, 1041 (N.D. Cal. 2019). In McDonald,

the plaintiff was “not suing for any breaches of [the] contract,” and therefore the

Court found there was no nexus to the operative facts. Id. at 1042. Arity 875

28
emphasizes that the “State does not purport to challenge the contracts themselves”

either, so the conclusion should be similar to that in McDonald. Arity Br. at 49.

However, in McDonald, the basis of jurisdiction was premised only on the fact that

the defendant was aware the apps would appear on California devices and not on the

defendant’s actions within California. Id. at 1041–1042. Unlike the defendant in

McDonald, Arity 875’s contacts with Texas go well beyond the foreseeability of harm

argument Defendant attempts to assert.

Another distinguishable case cited by Arity 875, Dalal v. Clearview AI, Inc.,

also undercuts Arity 875’s argument. In Dalal, the plaintiff “fail[ed] to point to any

allegation indicating that Clearview forged purposeful affiliations” with the forum in

relation to his claims. Dalal v. Clearview AI, Inc., No. CV 24-10380-SDW-AME,

2025 WL 1726259, at *9 (D.N.J. May 1, 2025), report and recommendation adopted,

No. CV 24-10380 (SDW) (AME), 2025 WL 1725010 (D.N.J. June 20, 2025). The

claims in Dalal arose from the “alleged sale of access to the unlawfully obtained

biometric data to businesses,” but there was “no indication that Clearview sold

access” to that data. Id. at *8. Here, Arity 875’s agreements with the app developers

permitted them to use and sell the data collected from the apps, which they did.

The remainder of the cases cited also involve companies with websites visible

in the forum state with no other substantiated contacts. See Alves v. Goodyear Tire &

29
Rubber Co., 683 F. Supp. 3d 111, 119 (D. Mass. 2023), appeal dismissed, No. 23-1682,

2023 WL 9782813 (1st Cir. Dec. 18, 2023) (holding that no personal jurisdiction

exists when the “intentional contact” is the accessibility of a “generally accessible

website); Shaik, 2025 WL 1727903, at *2, *7 (holding no specific personal

jurisdiction for a foreign aircraft engine designer and manufacturer with indirect

Texas contacts when the plaintiffs did not “identif[y] anything about the website

that targets Texas or Texans…”). Arity 875 attempts to show that these cases are

relevant because universally accessible apps are parallel to universally accessible

websites and are therefore not subject to jurisdiction. Arity Br. 29. This argument

completely misses the mark. Those cases deal with fact patterns of users accessing

websites and mobile apps with nothing more, whereas here, the State’s claims

involve Arity 875 intentionally targeting Texas and far more than mere use of third-

party mobile apps.

In sum, the various authorities Arity 875 puts forth are easily distinguishable

from the facts in this case and do nothing to bolster their argument that they have no

substantial contacts with Texas. Because Arity 875 has numerous contacts with

Texas related to the claims of this case, including intentionally targeting the State of

Texas for data collection and marketing, this court should find that personal

jurisdiction exists.

30
PRAYER

The Court should reverse the district court’s order granting Arity 875’s

Special Appearance and remand for further proceedings.

Respectfully Submitted,

Ken Paxton
Attorney General of Texas

Brent Webster
First Assistant Attorney General

Ralph Molina
Deputy First Assistant Attorney General

Austin Kinghorn
Deputy Attorney General for
Civil Litigation

Johnathan Stone
Chief, Consumer Protection Division

CERTIFICATE OF COMPLIANCE

Microsoft Word reports that this document contains 5,285 words, excluding

exempted text.

/s/ Rick Berlin
Rick Berlin
Assistant Attorney General

31
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Filing Code Description: Brief Requesting Oral Argument
Filing Description: Appellants Reply Brief
Status as of 9/15/2025 3:52 PM CST

Associated Case Party: State of Texas

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