* State Of Washington, App. V. Lg Display Co., Ltd., Res.

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Appellant,
v.
AU OPTRONICS CORPORATION; AU
OPTRONICS CORP., AMERICA;
CHIMEI INNOLUX CORPORATION;
CHI MEI OPTOELECTRONICS USA,
INC.; EPSON IMAGING DEVICES
CORPORATION; EPSON
ELECTRONICS AMERICA, INC.;
HITACHI, LTD.; HITACHI DISPLAYS,
LTD.; HITACHI ELECTRONIC
DEVICES (USA), INC.; SAMSUNG
ELECTRONICS CO., LTD.; SAMSUNG
SEMICONDUCTOR, INC.; SAMSUNG
ELECTRONICS AMERICA, INC.;
SHARP CORPORATION; SHARP
ELECTRONICS CORPORATION;
TOSHIBA CORPORATION; TOSHIBA
AMERICA ELECTRONICS
COMPONENTS, INC., TOSHIBA
AMERICA INFORMATION SYSTEMS,
INC., and TOSHIBA MOBILE DISPLAY
TECHNOLOGY CO., LTD., F/K/A
TOSHIBA MATSUSHITA DISPLAY
TECHNOLOGY CO.,
Defendants,
LG DISPLAY CO., LTD.; LG DISPLAY
AMERICA, INC.,
Respondents.
NO. 69318-2-1
DIVISION ONE
PUBLISHED OPINION
FILED: 	May 5, 2014
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NO. 69318-2-1/2
Leach, J. — In this case we consider the due process limitations on a
Washington 	court's 	exercise 	of 	personal 	jurisdiction 	over 	two 	foreign
corporations, LG Display Co. Ltd. and LG Display America Inc. (collectively LG
Display). 	LG 	Display 	manufactures 	and 	distributes 	components 	for 	retail
consumer goods that third parties mass-market throughout the United States. It
does 	not 	manufacture 	or 	distribute 	any 	component 	within 	the 	state 	of
Washington.
After LG Display admitted participating in a worldwide conspiracy to fix the
prices of LCD (liquid crystal display) panels, the State sued it in King County
Superior Court. 	The State alleged that the conspiracy resulted in higher prices
for Washington citizens and state agencies that purchased products containing
these panels. 	The State appeals the trial court's dismissal of LG Display for lack
of personal jurisdiction. 	The State also challenges the court's award of attorney
fees to LG Display under RCW 4.28.185(5). 	Because the State alleges sufficient
minimum contacts with this state for due process to allow a Washington court to
exercise specific jurisdiction over LG Display for harm allegedly caused here by
its conspiracy and LG Display fails to show that this exercise of jurisdiction would
be constitutionally unreasonable, we reverse and remand.
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 69318-2-1/3
FACTS
LG Display Co. Ltd. 	is a Korean corporation with its principal place of
business in Seoul, South Korea. 	It has an American subsidiary, LG Display
America 	Inc., 	located 	in 	San 	Jose, 	California. 	LG 	Display 	designs 	and
manufactures thin film transistor LCD panels. 	LG Display sells these flat screen
LCD panels to original equipment manufacturers, systems integrators, original
design manufacturers, and resellers.1 	Many of these third parties integrate the
flat 	screens 	into 	computer 	monitors, 	laptop 	computers, 	televisions, 	mobile
phones, 	and 	other finished 	products that they sell to indirect purchasers-
consumers who purchase the finished products from retailers.
LG Display is not licensed or qualified to do business in Washington state.
It maintains no offices, real property, telephone listing, mailing address, assets,
employees, or designated agent for service of process in Washington.
LG Display pleaded guilty in federal court to participating in a price-fixing
scheme from the late 1990s until 2006.2 	In August 2010, the Washington State
1 	An 	original 	equipment 	manufacturer 	produces 	products 	using
components purchased from other companies and sells the products, such as
computers, under its own brand name.
2 In re TFT-LCD (Flat Panel) Antitrust Litig.. 267 F.R.D. 291 	(N.D. Cal.
2010), abrogated on other grounds by In re ATM Fee Antitrust Litig., 686 F.3d
741 (9th Cir. 2012). 	Numerous direct purchasers and indirect purchasers filed
separate class actions in federal courts around the United States. 	The Joint
Panel on Multidistrict Litigation consolidated all of these federal court actions in
the 	Northern District of California for pretrial purposes, 	In 	re TFT-LCD (Flat
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NO. 69318-2-1/4
attorney general sued 20 defendants, including LG Display, in the name of the
State and as parens patriae on behalf of consumers residing in the state. 	In its
complaint, the State alleged that from at least January 1, 1998, through at least
December 1, 2006, LG Display participated in a worldwide conspiracy to fix the
prices of LCD panels that resulted in higher prices for Washington citizens and
state agencies that purchased products containing these panels. 	It claimed that
LG Display manufactured, marketed, sold, and/or distributed LCD panels and
LCD products to customers throughout the United States and in Washington
state. 	The State's complaint contained the following statement about the court's
jurisdiction and venue:
5. 	This 	action 	alleges 	violations 	of 	the 	Washington
Consumer Protection Act ("CPA"), RCW 19.86. 	Jurisdiction exists
pursuant to RCW 19.86.160.
6. 	Venue is proper in King County because the Plaintiff
resides therein; a significant portion of the acts giving rise to this
action 	occurred 	in 	King County; 	the 	Defendants 	and 	their co
conspirators 	[sic] 	activities 	were 	intended 	to, 	and 	did 	have 	a
substantial and foreseeable effect on U.S. and Washington State
trade 	or 	commerce; 	the 	conspiracy affected 	the 	prices of 	LCD
panels 	and 	LCD 	products 	purchased 	in 	Washington; 	and 	all
Defendants knew or expected that products containing their LCD
panels would be sold in the U.S. and into Washington.
Panel) Antitrust Litig., MDL Docket No. 1827. 	Washington was not a party to this
litigation.
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NO. 69318-2-1/5
The State sought injunctive relief, civil penalties, damages for state agencies,
and restitution for consumers.3
LG Display moved to dismiss the State's complaint, claiming that it did not
have "the 	continuous and systematic contacts with Washington necessary to
support general jurisdiction." 	It also alleged that the State's claims did 	not
support specific jurisdiction because "they do not arise from any conduct by [LG
Display] 	in 	Washington. 	The 	alleged 	conspiracy 	took 	place 	outside 	of
Washington State."
To resolve the personal jurisdiction issue, the trial court considered the
following allegations.4 	LG Display Co. Ltd. sold its LCD panels to a particular
global consumer electronics brand, which sold computer monitors and televisions
containing these panels throughout the United States and in Washington "by
making use of 'key electronic appliance distribution chains in the U.S.'"5 Another
Washington-based consumer electronics retailer purchased products containing
LG Display's LCD panels from the same global consumer electronics brand. 	In
3 Several defendants removed the case to federal court in September
2010. 	The district court held that removal was not proper, and the United States
Court of Appeals for the Ninth Circuit affirmed and remanded the case to state
court. Washington v. Chimei Innolux Corp., 659 F.3d 842 (9th Cir. 2011).
4 We 	consider 	only 	the 	facts 	alleged 	to 	have 	occurred 	within 	the
conspiracy period.
5 Because the trial court granted the State and LG Display's motion to
seal, 	we 	do 	not 	use 	the 	names 	of 	specific 	businesses 	or companies 	that
purchased or sold LG Display's LCD panels or products containing these panels.
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NO. 69318-2-1/6
2002, 2003, and 2004, sales by LG Display Co. Ltd. to this global consumer
electronics brand accounted for 19.4 percent, 25.1 	percent, and 19.3 percent,
respectively, of its revenues.
LG Display America Inc. sold over $600 million worth of LCD panels to a
particular original equipment manufacturer between 2001 and 2005. 	Between
2001 	and 	2007, 	the 	State 	purchased 	"in excess 	of 	100 	Million 	dollars 	of
product.... including] 	LCD 	Products" 	from 	this 	same 	particular 	original
equipment manufacturer. 	In 2003, this manufacturer's purchases accounted for
10 percent or more of net sales by LG Display America Inc. 	Also in 2003, LG
Display Co. Ltd. entered into a master purchase agreement with this particular
original equipment 	manufacturer. 	The 	purchase 	agreement 	stated 	that 	LG
Display Co. Ltd. 	agreed to obtain and 	retain U.S. regulatory approval 	for its
products. 	It also contained an indemnification provision obligating LG Display
Co. Ltd. to "defend, indemnify, and hold harmless" this manufacturer, as well as
the manufacturer's customers.6
Although 	LG 	Display 	Co. 	Ltd. 	had 	no 	direct 	sales 	to 	Washington
consumers 	between 	January 	1, 2001, 	and 	October 	31, 	2011,7 	LG 	Display
America Inc. sold one LCD panel to Bell Microproducts USA, a former computer
6 The State did not name this manufacturer in its complaint.
7 The record contains no information about any of LG Display's activities
outside of these dates.
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NO. 69318-2-1/7
wholesaler, in Washington in November 2006.8 	From July 2001 through March
2003, 	LG Display America 	Inc. sold 84 	units 	in 15 	separate transactions to
General Dynamics Itronix Corporation, a mobile computer manufacturer.9
Between January 1, 2001, and October 31, 	2011, LG Display Co. 	Ltd.
made pass-through shipments of 14,348 units of LCD panels to the Port of
Tacoma. 	LG Display Co. Ltd. sold these shipments in European markets. 	It
neither shipped nor sold these panels to 	any customers in Washington. 	LG
Display Co. Ltd. or its non-U.S. subsidiaries negotiated the contracts for these
shipments with companies outside of Washington.
Between 2001 and 2010, representatives from LG Display Co. Ltd. made
13 	trips 	to 	Washington 	to 	meet 	with 	representatives 	from 	the 	Microsoft
Corporation and to perform market research. 	LG Display Co. Ltd. states that
"[t]he majority of these trips included visits to several states, and the duration of
the Washington visit was generally one or two days." 	LG Display Co. Ltd. also
states that these meetings with Microsoft resulted in no business. 	Between 2001
and 2010, representatives from LG Display America Inc. made 26 business trips
8 The total value of this sale was $148.
9 The total value of these sales was $23,500. 	The State's brief indicates
that the sales totaled 	$178,000, 	but that calculation 	appears 	incorrect. 	LG
Display 	asserts, 	"Bell's 	and 	Itronix's 	claims 	were 	already 	resolved 	in 	the
multidistrict litigation and resellers are not included in the State's alleged parens
patriae class."
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NO. 69318-2-1/8
to Washington to meet with representatives from Microsoft, Best Buy, Target,
Itronix, Costco, and Rockwell/APC.
The trial court granted LG Display's motion to dismiss for lack of personal
jurisdiction. The court relied upon the United State Supreme Court's opinion in J.
Mclntvre Machinery Ltd. v. Nicastro10 and concluded,
[T]here 	is 	no 	"something 	more", 	[sic] no 	state 	related 	design,
advertising, or marketing directed to Washington, no showing that
the LG Defendants have purposefully availed themselves of the
privilege 	of 	conducting 	themselves 	in 	Washington, 	or 	have
delivered 	their 	product 	into the 	stream 	of commerce 	with the
expectation 	that 	it 	would 	be 	purchased 	by 	Washington
users. .. . Under the facts alleged, a finding of specific jurisdiction
does not satisfy due constitutional process.
The court entered a final judgment as to LG Display's motion to dismiss
for lack of personal jurisdiction. 	Later, the court granted LG Display's application
for attorney fees in concept, concluding, "Defendants are entitled to fees and
costs pursuant to RCW4.28.185(5)."11
The State appeals.12
1° 	U.S. 	, 131 S. Ct. 2780, 2792, 180 L. Ed. 2d 765 (2011) (Breyer,
J., concurring in the judgment).
11 	The 	court 	noted, 	"The 	burden 	is 	on 	the 	petitioner 	to 	provide
documentation 	sufficient for 	the 	court to determine the 	reasonableness 	and
necessity of the fees requested. 	Such has not been provided. . . . Defendants
may elect to have this determination made upon the resolution of the [S]tate's
appeal of this issue."
12 See RAP 2.4(g) ("An appeal from a decision on the merits of a case
brings up for review an award of attorney fees entered after the appellate court
accepts review of the decision on the merits.").
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NO. 69318-2-1/9
STANDARD OF REVIEW
"When the trial court considers matters outside the pleadings on a motion
to dismiss for lack of personal jurisdiction, we review the trial court's ruling under
the de novo standard of review for summary judgment."13 We review the facts
and reasonable inferences drawn from the facts in the light most favorable to the
nonmoving party.14 "For purposes of determining jurisdiction, this court treats the
allegations in the complaint as established."15 	The plaintiff bears the burden of
establishing a prima face 	case that jurisdiction exists.16 	We apply a two-part
review to awards or denials of attorney fees: 	(1) we review de novo whether a
legal basis exists for awarding attorney fees by statute, under contract, or in
equity, and (2) we review the decision to award fees and the reasonableness of
any attorney fee award for abuse of discretion.17
13 Freestone Capital Partners L.P. v. MKA Real Estate Opportunity Fund I,
LLC, 155 Wn. App. 643, 653, 230 P.3d 625 (2010) (citing CTVC of Haw. Co. v.
Shinawatra, 82 Wn. App. 699, 707-08, 919 P.2d 1243 (1996)).
14 Freestone Capital Partners, 155 Wn. App. at 653-54 (citing CTVC of
Haw., 82 Wn. App. at 708).
15 Freestone Capital Partners, 155 Wn. App. at 654 (citing CTVC of Haw.,
82 Wn. App. at 708).
16 In re Marriage of David-Ovtan, 171 Wn. App. 781, 798, 288 P.3d 57
(2012) (citing John Does v. CompCare. Inc., 52 Wn. App. 688, 693, 763 P.2d
1237 (1988); In re Marriage of Yocum, 73 Wn. App. 699, 703, 870 P.2d 1033
(1994)), review denied, 177 Wn.2d 1017 (2013).
17 Gander v. Yeager, 167 Wn. App. 638, 647, 282 P.3d 1100 (2012).
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NO. 69318-2-1/10
ANALYSIS
Personal Jurisdiction
A court may exercise 	general 	or 	specific personal jurisdiction 	over a
nonresident 	defendant.18 	A 	court 	may 	exercise 	general 	jurisdiction 	if a
nonresident defendant "is doing 	business 	in this 	state on 	a 	substantial and
continuous basis."19 A court may exercise specific jurisdiction over a nonresident
defendant "based on much more limited contacts with Washington, but specific
jurisdiction extends only to causes 	of action that 	arise out of those 	limited
contacts."20
The 	State 	claims 	specific 	jurisdiction 	over 	LG 	Display 	under 	RCW
19.86.160, the long-arm provision of the Consumer Protection Act (CPA), chapter
19.86 RCW:
Personal service of any process in an 	action 	under this chapter
may be made upon any person outside the state if such person has
engaged in conduct in violation of this chapter which has had the
impact in this state which this chapter reprehends. 	Such persons
shall 	be 	deemed 	to 	have thereby submitted 	themselves to the
18 FutureSelect Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc., 175
Wn. App. 840, 886, 309 P.3d 555 (2013) (citing CTVC of Haw., 82 Wn. App. at
708), review granted, 179 Wn.2d 1008 (2014).
19 FutureSelect Portfolio 	Mgmt., 	175 Wn. App. 	at 886 (citing CTVC of
Haw., 82 Wn. App. at 708).
20 FutureSelect Portfolio 	Mgmt., 	175 Wn. App. 	at 886 (citing CTVC of
Haw., 82 Wn. App. at 709).
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NO. 69318-2-1/11
jurisdiction of the courts of this state within the meaning of RCW
4.28.180 and 4.28.185J21!
This statute extends the jurisdiction of Washington courts to persons outside its
borders.22 	RCW 19.86.160 "is intended to operate to the fullest extent permitted
by due process."23 A court's exercise of jurisdiction under RCW 19.86.160 must
satisfy 	both 	the 	statute's 	requirements 	and 	due 	process.24 	LG 	limits 	its
jurisdictional challenge to the State's alleged attempt to violate due process.
The United States Supreme Court examines three elements to determine
if personal jurisdiction satisfies due process:
(1) that purposeful "minimum contacts" exist between the defendant
and the forum state; (2) that the plaintiff's injuries "arise out of or
relate to" those minimum contacts; 	and 	(3) that the exercise of
jurisdiction be 	reasonable, that is, that jurisdiction be 	consistent
with notions of "fair play and substantial justice."[25]
21 	RCW 19.86.020 states, "Unfair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade or commerce are hereby
declared 	unlawful." 	The State does not claim that Washington can exercise
general jurisdiction over LG Display.
22 David-Ovtan, 171 Wn. App. at 798 (citing Yocum, 73 Wn. App. at 703).
Our Supreme Court applies a similar analysis to the CPA's long-arm provision,
RCW 19.86.160, and to the general long-arm statute, RCW 4.28.185. 	See State
v. Reader's Digest Ass'n, 81 Wn.2d 259, 276-78, 501 P.2d 290 (1972).
23 David-Ovtan, 171 Wn. App. at 798 (interpreting RCW 4.28.185).
24 David-Ovtan, 171 Wn. App. at 798 (interpreting RCW 4.28.185) (citing
Yocum, 73 Wn. App. at 702).
25 Grange Ins. Ass'n v. State, 110 Wn.2d 752, 758, 757 P.2d 933 (1988)
(citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-78, 105 S. Ct. 2174,
85 L. Ed. 2d 528 (1985)).
-11-
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 69318-2-1/12
If the plaintiff satisfies the first two prongs of this test, the burden shifts to the
defendant "'to set forth a compelling case that the exercise of jurisdiction would
not be reasonable.'"26
The State alleges that Washington's 	exercise of jurisdiction 	does 	not
violate due process because (1) LG Display "purposefully delivered hundreds of
millions of panels to the United States which were purchased in finished products
in Washington State," (2) "[t]his action arises from [LG Display's] [c]ontacts with
Washington," and (3) "[t]he exercise of Personal Jurisdiction over [LG Display]
comports with traditional notions of fair play and substantial justice."
LG 	Display 	asserts 	that 	the 	due 	process 	clause 	of 	the 	Fourteenth
Amendment to the United States Constitution prohibits a Washington court from
exercising personal jurisdiction over it because it has not purposefully availed
itself of the privilege of conducting business in Washington.
To satisfy the first prong of the specific jurisdiction test, a plaintiff may
show either that the defendant's activities constituted "purposeful availment" of
the forum state's laws or the defendant's "purposeful direction" toward the forum
state.27 	This 	requirement ensures that a defendant will 	not be haled 	into a
26 C.S. v. Corp. of the Catholic Bishop of Yakima, No. 13-CV-3051, 2013
WL 5373144, 	at *3 (E.D. 	Wash. 	Sept. 	25, 	2013) 	(internal 	quotation 	marks
omitted) (quoting CollegeSource, Inc. v. AcademvOne. Inc., 653 F.3d 1066, 1076
(9th Cir. 2011)).
27 CJL 2013 WL 5373144, at *3 (citing Yahoo! Inc. v. Le Ligue Contre La
Racisme et L'Antisemitisme, 433 F.3d 1199, 1206 (9th Cir. 2006) (en banc))).
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NO. 69318-2-1/13
jurisdiction 	solely 	as 	the 	result 	of 	random, 	fortuitous, 	or 	attenuated
circumstances.28
The State claims that LG Display
purposefully availed itself in Washington by releasing hundreds of
millions of its LCD panels into the stream of commerce with the
expectation and intent that they would be incorporated into finished
goods to 	be sold throughout the United States. 	LGD's conduct
spanned many years, and it targeted as broad a market as possible
by selling panels both to companies that directly do business in the
U.S. through retail distribution and through its U.S. subsidiary.
The State relies upon the United States Supreme Court's decision in World-Wide
Volkswagen Corp. v. Woodson.29 	There, the Court held, "The forum State does
not exceed 	its powers 	under the 	Due 	Process Clause if it asserts 	personal
jurisdiction over 	a 	corporation 	that 	delivers 	its products 	into the 	stream 	of
commerce with the expectation that they will be purchased by consumers in the
forum State."
LG Display argues that if Washington consumers purchased electronic
products containing LG Display's LCD panels, these purchases "resulted from
the independent actions of products manufacturers and retailers. 	The State does
not and cannot identify a single sale of laptops, televisions, or other electronic
products from LG Display to Washington consumers. 	Nor can it show that LG
28 Burger King, 471 U.S. at 475.
29 444 U.S. 286, 297-98, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980).
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NO. 69318-2-1/14
Display directed or controlled any such sales. 	They did not."30 	LG Display
further contends,
Under the narrowest holding of J. Mclntyre, simply placing a
product into the stream of commerce and targeting the general U.S.
market does not establish the forum contact required to satisfy due
process. 	The trial court's ruling that "something more" is required
to assert personal jurisdiction over [LG Display] is supported by J.
Mclntyre and by Washington law.
In J. Mclntyre, a British manufacturer, J. Mclntyre Machinery Ltd., sold its
metal shearing machines to an independent U.S. distributor, which marketed the
machines throughout the United States.31 	The distributor sold one machine to a
company in New Jersey.32 This machine allegedly malfunctioned and injured the
plaintiff in New Jersey. The worker sued Mclntyre in New Jersey.33 	The New
Jersey Supreme Court held that New Jersey courts could exercise personal
jurisdiction over the manufacturer because the manufacturer "knew or reasonably
30 	In a 	2004 	filing 	with the 	United States 	Securities 	and 	Exchange
Commission, LG Display Co. Ltd. stated, "We negotiate directly with our end-
brand customers concerning the terms and conditions of the sales, but typically
ship our display panels to designated systems integrators at the direction of
these end-brand customers."
31 J. Mclntyre, 131 S. Ct. at 2786 (plurality opinion).
32 J. Mclntyre, 131 S. Ct. at 2786 (plurality opinion). 	The plurality opinion
stated 	that "no 	more than four 	machines . . . ended 	up 	in New 	Jersey." 	vL
Mclntyre, 	131 	S. 	Ct. 	at 	2786 	(plurality 	opinion). 	Justice 	Breyer's 	opinion
concurring in the judgment stated, "The American Distributor on one occasion
sold and shipped one machine to a New Jersey customer." J. Mclntyre, 131 S.
Ct. at 2791 (Breyer, J., concurring in the judgment). As explained below, Justice
Breyer's opinion controls.
33 J. Mclntyre, 131 S. Ct. at 2786 (plurality opinion).
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NO. 69318-2-1/15
should 	have 	known 	'that 	its 	products 	are 	distributed 	through 	a 	nationwide
distribution system that might lead to those products being sold in any of the fifty
states.'"34
The 	United States Supreme Court reversed.35 	The 	case produced no
majority opinion. 	Four justices signed a plurality opinion authored by Justice
Kennedy. 	Two signed a concurring opinion authored by Justice Breyer. 	These
six justices agreed that a foreign manufacturer's sale of its products through an
independent, nationwide distribution system is not sufficient, without more, for a
state to assert personal jurisdiction over the manufacturer when only one of its
products ends up in a state and causes injury there.36 	But the two opinions
differed in their reasoning.
Justice 	Kennedy, joined 	by Chief Justice 	Roberts, 	Justice Scalia, 	and
Justice 	Thomas, 	explained 	that 	"it 	is 	the 	defendant's 	actions, 	not 	his
expectations, that empower a State's courts to subject him to judgment."37 	The
fact that it was foreseeable a defendant's products might be distributed in the
34 J. Mclntyre, 131 S. Ct. at 2786 (plurality opinion) (quoting Nicastro v.
Mclntyre Machinery America, Ltd., 201 N.J. 48, 76, 987 A.2d 575 (2010)).
35 See J. 	Mclntyre, 	131 	S. 	Ct. 	at 2791 	(plurality opinion) 	(Breyer, 	J.,
concurring in the judgment).
36 J. Mclntyre, 131 S. Ct. at 2791 (plurality opinion); J. Mclntyre, 131 S. Ct.
at 2792 (Breyer, J., concurring in the judgment).
37 J. Mclntyre, 131 S. Ct. at 2789 (plurality opinion).
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NO. 69318-2-1/16
forum state or all 50 states was not sufficient; the plurality would require evidence
that the foreign defendant "targeted" the forum state in some way.38
Justice 	Kennedy 	identified two 	principles. 	First, 	determining 	personal
jurisdiction "requires a forum-by-forum, or sovereign-by-sovereign, analysis. 	The
question is whether a defendant has followed a course of conduct directed at the
society or economy existing within the jurisdiction of a given sovereign, so that
the sovereign has the power to subject the defendant to judgment concerning
that conduct."39 	Second, "[bjecause the United States is a distinct sovereign, a
defendant may in principle be subject to the jurisdiction of the 	courts of the
United States but not of any particular State."40 	Despite evidence that the British
manufacturer targeted the 	United States, no evidence showed that it targeted
New Jersey specifically.41 	Accordingly, the plurality concluded that New Jersey
lacked personal jurisdiction over the British manufacturer.42
Justice Breyer, joined by Justice Alito, cited the Court's opinions in World-
Wide Volkswagen43 and Asahi Metal Industry Co. v. Superior Court44 as support
for the proposition that "a single sale of a product in a State does not constitute
38 J. Mclntyre, 131 S. Ct. at 2788 (plurality opinion).
39 J. Mclntyre, 131 S. Ct. at 2789 (plurality opinion).
40 J. Mclntyre, 131 S. Ct. at 2789 (plurality opinion).
41 J. Mclntyre, 131 S. Ct. at 2790 (plurality opinion).
42 J. Mclntyre, 131 S. Ct. at 2790-91 (plurality opinion).
43 444 u.S. at 297-98.
44 480 U.S. 102, 117, 122, 107 S. Ct. 1026, 94 L Ed. 2d 92 (1987).
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NO. 69318-2-1/17
an adequate basis for asserting jurisdiction over an out-of-state defendant, even
if that defendant places his goods in the stream of commerce, fully aware (and
hoping) that such a sale will take place."45 	Because the evidence established no
connection 	between 	the 	British 	manufacturer and 	New Jersey other than 	a
"single isolated sale" achieved as a result of the independent distributor's efforts,
Justice Breyer agreed with the plurality that the British manufacturer's contacts
with 	New 	Jersey 	were 	constitutionally 	insufficient 	to 	support 	New 	Jersey's
assertion of jurisdiction.46
Finally, 	Justice 	Ginsburg, 	joined 	by 	Justices 	Sotomayor 	and 	Kagan,
dissented. 	Justice Ginsburg concluded that when the British manufacturer "dealt
with the 	United 	States as a 	single market" and 	sought to 	have 	its products
distributed nationwide, due process did not prevent the state where the injury
occurred 	from 	holding 	the 	manufacturer 	accountable.47 	The 	fact 	that 	the
distributor sold only one machine in New Jersey did not preclude jurisdiction over
the manufacturer when that machine gave rise to the plaintiff's claim.48
45 J. Mclntyre, 131 S. Ct. at 2792 (Breyer, J., concurring in the judgment).
46 	J. 	Mclntyre, 	131 	S. 	Ct. 	at 	2791-92 	(Breyer, 	J., 	concurring 	in the
judgment).
47 J. Mclntyre, 131 S. Ct. at 2801-02 (Ginsburg, J., dissenting).
48 J. Mclntyre. 131 S. Ct. at 2804 (Ginsburg, J., dissenting).
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NO. 69318-2-1/18
In Marks v. United States,49 the United States Supreme Court held, "When
a fragmented Court decides a case and no single rationale explaining the result
enjoys the assent of five Justices, 'the holding of the Court may be viewed as
that position taken by those Members who concurred in the judgment[ ] on the
narrowest grounds.'" 	Applying this 	rule, Justice 	Breyer's concurring opinion,
deciding 	the 	case 	on 	narrower 	grounds 	than 	the 	plurality's, 	controls 	in J.
Mclntyre.
We consider Justice Breyer's reasoning:
Here, the relevant facts found by the New Jersey Supreme
Court show no "regular. . . flow" or "regular course" of sales in New
Jersey; and there is no "something more," such as special state-
related design, advertising, advice, marketing, or anything else. 	Mr.
Nicastro, who here bears the burden of proving jurisdiction, has
shown no specific effort by the British Manufacturer to sell in New
Jersey. 	He 	has 	introduced 	no 	list 	of 	potential 	New 	Jersey
customers who might, for example, have regularly attended trade
shows [in other states at which the British Manufacturer appeared
and solicited sales]. 	And he 	has not otherwise shown that the
British Manufacturer "purposefully avail[ed] itself of the privilege of
conducting activities" within 	New Jersey, 	or that 	it delivered 	its
goods in the stream of commerce "with the expectation that they
will be purchased" by New Jersey users.[50]
49 430 U.S. 188, 	193, 97 S. Ct. 990, 	51 L. Ed. 2d 260 (1977) (quoting
Gregg v. Georgia, 428 U.S. 153, 	169 n.15, 	96 S. Ct. 2909, 49 L 	Ed. 2d 859
(1976) 	(opinion 	of 	Stewart, 	Powell, 	& Stevens, 	JJ.)); 	accord 	Panetti 	v.
Quarterman, 551 	U.S. 930, 949, 	127 S. 	Ct. 2842, 168 L. Ed. 2d 662 (2007)
(following Marks); 	Davidson v. Henson, 135 Wn.2d 112, 128, 954 P.2d 1327
(1998) (same).
50 J. Mclntyre, 131 S. Ct. at 2792 (Breyer, J., concurring in the judgment)
(some alterations in original) (quoting World-Wide Volkswagen, 444 U.S. at 297-
98). 	In relying upon the phrases "'regular. . . flow' or 'regular course' of sales,"
Justice Breyer cited Justice Brennan's and Justice Stevens's separate opinions
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NO. 69318-2-1/19
Absent evidence of a 	"'regular. . . flow' or 	'regular course' of sales," in New
Jersey, or evidence of "'something more,' such as special state-related design,
advertising, advice, marketing, or anything else," Justice Breyer found the record
insufficient to support personal jurisdiction.51
Further, Justice Breyer noted the he "d[id] not agree with the plurality's
seemingly strict no-jurisdiction rule" or the "absolute approach adopted by the
New Jersey Supreme Court" authorizing a state to exercise jurisdiction over an
out-of-state manufacturer as long as the manufacturer knows or should know that
its products "'are distributed through a nationwide distribution system that might
lead to those products being sold in any of the fifty states.'"52 	The New Jersey
Supreme Court's 	rule did 	not focus 	on 	the defendant's relationship with the
forum, leading to the possibility that jurisdiction would rest "upon no more than
the occurrence of a product-based accident in the forum State."53 New Jersey's
rule would 	also 	result in jurisdiction over all out-of-state 	manufacturers who
distribute goods nationally without regard to the fairness of making them appear
in Asahi, 480 U.S. at 117, 122, which he referenced earlier in his opinion. 	J.
Mclntyre, 131 S. Ct. at 2792 (Breyer, J., concurring in the judgment).
51 	J. 	Mclntyre, 	131 	S. 	Ct. 	at 	2792 	(alteration 	in original) (Breyer, 	J.,
concurring in the judgment).
52 J. Mclntyre, 131 S. Ct. at 2793 (Breyer, J., concurring in the judgment)
(quoting Nicastro, 201 N.J. at 76-77).
53 J. Mclntyre, 131 S. Ct. at 2793 (Breyer, J., concurring in the judgment).
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NO. 69318-2-1/20
and 	defend 	in New Jersey.54 	Justice 	Breyer explained 	that 	although 	New
Jersey's rule might seem fair when applied to a large manufacturer that has the
ability to appear and defend wherever its products cause injury—or to alleviate
the risk of litigation 	by procuring insurance—this rule "may be fundamentally
unfair" 	when 	applied to 	a 	small 	manufacturer selling 	its 	products through a
national 	or international distributor.55 	New Jersey's approach would not only
impose potentially undue burdens on 	small manufacturers selling only a few
products in a state but would also require these manufacturers to anticipate and
comply with the laws of every state.56
Here, the State cites various Washington cases it claims recognize that
merely placing goods into a broad stream of commerce can constitute purposeful
minimum contacts to establish personal jurisdiction.57 	With the 	exception of
Grange Insurance Ass'n v. State,58 our Supreme Court decided these cases
before 	the 	United 	States 	Supreme 	Court 	decided 	World-Wide 	Volkswagen,
Asahi, 	and 	J. 	Mclntyre. 	Because 	this 	case 	requires 	us 	to 	apply 	federal
54 	J. 	Mclntyre, 	131 	S. 	Ct. 	at 	2793-94 	(Breyer, 	J., 	concurring 	in the
judgment).
55 	J. 	Mclntyre, 	131 	S. 	Ct. 	at 	2793-94 	(Breyer, 	J., 	concurring 	in the
judgment).
56 J. Mclntyre, 131 S. Ct. at 2794 (Breyer, J., concurring in the judgment).
57 Griffiths & Sprague Stevedoring Co. v. 	Bavlv. Martin & Fay, Inc., 71
Wn.2d 679, 684, 430 P.2d 600 (1967); Omstead v. Brader Heaters, Inc., 5 Wn.
App. 258, 269-71, 487 P.2d 234 (1971), affd, 80 Wn.2d 720, 497 P.2d 1310
(1972); Reader's Digest Ass'n, 81 Wn.2d at 276-78; Grange, 110 Wn.2d at 761.
58 110 Wn.2d 752, 761, 757 P.2d 933 (1988).
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NO. 69318-2-1/21
constitutional law, we look to these more recent United States Supreme Court
decisions for guidance. 	And, contrary to the 	State's argument, 	the 	court in
Grange cited the United States Supreme Court's decisions in Burger King Corp.
v. Rudzewicz59 and Asahi in recognizing, "[T]here is no longer any doubt that a
party asserting long-arm jurisdiction must show 'purposefulness' as part of the
first due 	process element."60 	No 	recent Washington case applies a simple
stream of commerce analysis.
Following the analysis of J. Mclntyre adopted by the Oregon Supreme
Court in Willemsen v. Invacare Corporation,61 	we hold 	that Washington may
exercise 	personal jurisdiction over LG 	Display. 	In Willemsen, a Taiwanese
company that manufactured battery chargers, CTE, supplied its products for
installation 	in motorized 	wheelchairs 	built by an 	Ohio 	corporation, 	Invacare,
which then 	sold 	the wheelchairs throughout the 	United States, 	including in
Oregon.62 	Between 2006 and 2007, Invacare sold 1,166 motorized wheelchairs
59 471 U.S. 462, 476, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985) ("Once it
has been decided that a defendant purposefully established minimum contacts
within the forum State, these contacts may be considered in light of other factors
to determine whether the assertion of personal jurisdiction would comport with
'fair play and substantial justice."' (quoting Int'l Shoe Co. v. Washington, 326 U.S.
310, 320, 66 S. Ct. 154, 90 L. Ed. 95 (1945))).
60 Grange, 110 Wn.2d at 760.
61 352 Or. 191, 282 P.3d 867 (2012), cert, denied, 133 S. Ct. 984 (2013).
62 Willemsen, 352 Or. at 194.
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NO. 69318-2-1/22
in Oregon, nearly 95 percent of which came with CTE's battery chargers.63 	The
plaintiffs sued CTE after their mother died in a fire allegedly caused by a defect in
CTE's 	battery 	charger.64 	CTE 	challenged 	the 	Oregon 	court's 	exercise 	of
personal jurisdiction, claiming that Invacare chose to sell its products in Oregon
and that under J. Mclntyre, "the mere fact that [CTE] may have expected that its
battery chargers might end up in Oregon is not sufficient to give Oregon courts
specific jurisdiction over it."65
The Oregon Supreme Court determined, "The sale of the CTE 	battery
charger in Oregon that led to the death of plaintiffs' mother was not an isolated or
fortuitous occurrence."66 	Relying on Justice Breyer's concurrence in J. Mclntyre,
the court concluded that "the sale of over 1,100 CTE battery chargers within
Oregon over a two-year period shows a 'regular. . . flow' or 'regular course' of
sales in Oregon" and thus established sufficient minimum contacts for an Oregon
court 	to 	exercise 	specific 	jurisdiction 	over 	CTE.67 	The 	court 	stated, 	"Put
63 Willemsen, 352 Or. 	at 196. 	The court noted, "It is unclear from the
complaint whether Invacare itself sold its motorized wheelchairs in Oregon or
whether it sold them through a distributor. ... In CTE's view, the dispositive facts
are that it did not sell its battery chargers directly in Oregon and that jt did not
otherwise have any direct contacts here." Willemsen, 352 Or. at 196 n.5.
64 Willemsen, 352 Or. at 194.
65 Willemsen, 352 Or. at 198.
66 Willemsen, 352 Or. at 203.
67 Willemsen, 352 Or. at 203-04 (alteration in original) (internal quotation
marks omitted) (quoting J. Mclntyre, 131 S. Ct. at 2792 (Breyer, J., concurring in
the judgment)).
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NO. 69318-2-1/23
differently, the pattern of sales of CTE's battery chargers in Oregon establishes a
'relationship between the defendant, the forum, and the litigation, [such that] it is
fair, in light of the defendant's contacts with [this] forum, to subject the defendant
to suit [h]ere.'"68 	Courts in other jurisdictions have similarly distinguished J.
Mclntyre and held that a foreign defendant is subject to personal jurisdiction in
the forum state based upon the volume of sales in that state.69
Similarly, 	the 	alleged 	sale 	in Washington 	of 	products 	containing 	LG
Display panels at inflated prices was not an isolated or fortuitous occurrence. 	LG
Display's alleged conduct plus a 	large volume of expected and actual sales
established 	sufficient 	minimum 	contacts for 	a 	Washington 	court to 	exercise
specific jurisdiction over it. 	LG Display understood the third parties would sell
products containing its LCD panels throughout the United States, including large
numbers of those products in Washington. 	LG Display Co. 	Ltd. sold its LCD
68 Willemsen, 	352 Or. at 207 (alterations in original) (internal quotation
marks omitted) (quoting J. Mclntyre, 131 S. Ct. at 2793 (Breyer, J., concurring in
the judgment)).
69 See, e.g., Graham v. Hamilton, No. 3.11-CV-609, 2012 WL 893748, at
*4 (W.D. La. Mar. 15, 2012) (holding that "the Mclntyre concurrence does not
govern the facts of this case" because, unlike the single sale to New Jersey in
that case the record showed that the foreign defendant "places over 800,000
vehicles into the U.S. market each year," many of which "would likely be sold in"
the forum state); Ainsworth v. Cargotec USA, Inc., No. 2.10-CV-236, 2011 WL
4443626, 	at 	*7 	(S.D. 	Miss. 	Sept. 	23, 	2011) 	(holding 	that 	the 	case 	was
"remove[d].. . from the scope of Mclntyre's 	applicability" because the out-of-
state defendant sold 	203 forklifts 	to 	customers 	in 	the forum 	state over the
previous decade, generating over $5.3 million in sales).
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NO. 69318-2-1/24
panels 	to 	a 	particular 	global 	consumer 	electronics 	manufacturer 	that 	sold
products containing these panels nationwide and in Washington through national
electronic 	appliance 	distribution 	chains. 	These 	sales 	accounted 	for
approximately 	19-25 percent of LG 	Display's 	annual 	revenues. 	Washington
State purchased "in excess of 100 Million dollars of product . . . including] LCD
Products" from this 	manufacturer. 	This original equipment manufacturer also
entered into a master purchase agreement with LG Display Co. Ltd. in which the
company agreed to obtain and maintain all necessary U.S. regulatory approval.
And LG Display representatives met with various companies in Washington and
in other states.
Although, "[t]o be sure, nationwide distribution of a foreign manufacturer's
products is not sufficient to establish jurisdiction over the manufacturer when that
effort results in only a single sale in the forum state,"70 the record here shows that
during the conspiracy period, various companies and retailers sold millions of
dollars' worth of products containing LG Display's LCD panels in Washington.
Sales to 	Washington 	consumers were 	not 	isolated; 	rather, 	they 	indicated 	a
"'regular. . . flow' or 'regular course'" of sales in Washington. 	Further, the pattern
of 	sales 	of 	products 	containing 	LG 	Display's 	LCD 	panels 	establishes 	a
relationship between LG Display, Washington, and this litigation, such that it is
70 Willemsen, 352 Or. at 203.
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NO. 69318-2-1/25
fair, in light of LG Display's contacts with Washington, to subject LG Display to
suit here.
LG 	Display 	claims 	that 	Willemsen's 	reasoning 	"directly 	conflicts 	with
Grange, 	which 	disclaimed 	those 	Washington 	cases 	that 	did 	not 	require 	a
showing 	of 'purposefulness' to 	establish jurisdiction 	in tort cases." 	But, 	the
Oregon Supreme Court's analysis relies upon Justice Breyer's rationale in J.
Mclntyre, which required showing purposefulness, and the court determined that
the sales in Oregon were not "isolated or fortuitous."71 	Further, Grange predates
the United States Supreme Court's more recent interpretations of the federal due
process clause. We reject LG Display's claim.
Due process also requires the State to show this cause of action arises
from LG Display's indirect sales to Washington consumers. 	The State claims,
"Washington 	consumers 	and 	state 	agencies 	have 	been 	injured 	by 	paying
supracompetitive prices for LCD products as a result of [LG Display's] price-fixing
conduct." 	LG Display argues that consumers purchased 	LCD products from
independent third parties. 	We agree with the State.72 	LG Display's admitted
price manipulation allegedly inflated the price paid for those purchases.
71 Willemsen, 352 Or. at 201 	(quoting J. 	Mclntyre. 131 	S. 	Ct. at 2792
(Breyer, J., concurring in the judgment)).
72 See In re W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d
716, 	742-43 	(9th 	Cir. 2013) 	("There 	is no question 	that the 	Plaintiffs' state
antitrust claims arise out of the AEP Defendants' collusive manipulation of the
gas price indices. 	In other words, their claims 'arise[ ] out of or relate[ ] to' the
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NO. 69318-2-1/26
Finally, LG Display must show that the exercise of personal jurisdiction
would not be reasonable. 	Courts consider "the quality, nature, and extent of the
defendant's activity in Washington, the relative convenience of the plaintiff and
the defendant in maintaining the action 	here, 	the 	benefits and 	protection of
Washington's laws afforded the parties, and the basic equities of the situation."73
Because the trial court determined that LG Display's contacts were insufficient to
establish personal jurisdiction, it did not address this element. 	Because we hold
that the State showed both purposeful availment and relatedness, we address
this third factor in the due process test.
As 	discussed 	above, 	the 	State claims that 	LG Display manufactured,
marketed, sold, and/or distributed millions of LCD panels and LCD products to
customers nationwide and in Washington during the course of the price-fixing
conspiracy. 	In its complaint, the State alleged that LG Display "knew or expected
that products containing their LCD panels would be sold in the U.S. and into
Washington." 	LG Display representatives also traveled to Washington numerous
times for business meetings and to perform market research. 	The fact that these
Defendants' alleged forum-related 	activities.") (alterations in original) (quoting
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004)),
petition for cert, filed, 82 U.S.L.W. 3107 (U.S. Aug. 26, 2013) (No. 13-271).
73 CTVC of Haw., 82 Wn. App. at 720 (citing DiBernardo-Wallace v. Gullo,
34 Wn. App. 362, 365-66, 661 P.2d 991 (1983)).
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NO. 69318-2-1/27
meetings resulted in no business does not discount LG Display's efforts to target
Washington.
For the convenience element, LG Display argues, "Requiring LG Display
to litigate in a state where they have no offices, employees, or other resources on
its own 	presents a significant burden." 	Requiring LG Display to answer and
defend in Washington would not pose an unfair burden. 	In a master purchase
agreement, LG Display Co. Ltd. agreed that its products would comply with all
U.S. regulatory requirements, which suggests its familiarity with applicable laws.
This agreement also contained an indemnity provision, indicating that LG Display
"anticipated the 	need 	to defend 	against [this] 	very sort 	of claim."74 	Again,
representatives from LG Display traveled to Washington for business meetings
and to perform market research.
The benefits and 	protections of Washington 	law favor 	the State. 	LG
Display claims, "The State's strong interest in protecting its citizens, on its own, is
an insufficient basis for finding jurisdiction." 	RCW 19.86.080(3) authorizes the
State to bring a CPA action on behalf of Washington's indirect purchasers; these
74 See Willemsen, 	352 Or. at 208 (master supply agreement provision
agreeing to maintain certificate of insurance indicated that "CTE anticipated the
need to defend against [this] very sort of claim"); see also Abel v. Montgomery
Ward Co., 798 	F. Supp. 322, 	327 	(E.D. Va. 1992) (manufacturer anticipated
being haled into court in forums where its products were resold was obligated to
purchase insurance to protect itself, reserved rights to defend its products, and
agreed to indemnify Montgomery Ward).
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NO. 69318-2-1/28
consumers have no private right of action.75 	Our Supreme Court explained in
State v. Reader's Digest Ass'n:76
Respondent solicited Washington business and derived substantial
profits from Washington residents by clearly illegal methods. 	It is
the 	duty 	of the 	state to 	protect 	its 	residents from 	such 	unfair
practices. 	If our courts are not open, the state will be without a
remedy 	in any court and 	the 	Consumer 	Protection Act will be
rendered useless.
LG Display allegedly 	solicited 	Washington 	business 	and 	derived 	substantial
profits indirectly from Washington consumers as a result of its illegal actions, and
no alternative forum exists for Washington consumers.77
Finally, equity weighs in the State's favor. 	LG Display contends, "[T]he
State alleges conduct that occurred primarily in Asia and has provided no direct,
related link to Washington residents." 	It also asserts, "[T]here is little risk that
dismissing the LG Display companies from this case will limit the State's recovery
at trial. 	Fifteen defendants remain in the case, and the State will likely argue that
each defendant is joint and severally liable for all of its alleged injuries."
As the State notes, only an indirect relationship can exist between LG
Display and Washington consumers who purchased finished goods containing
75 See Blewett v. Abbott Labs., 86 Wn. App. 	782, 790, 938 P.2d 842
(1997) ("We conclude that direct purchasers and the attorney general are the
enforcers of antitrust law in Washington.").
76 81 Wn.2d 259, 278, 501 P.2d 290 (1972).
77 The State concedes that if it were to file a federal action, it could ask the
court to exercise pendant jurisdiction over its state law claim.
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NO. 69318-2-1/29
LG 	Display's 	products. 	Considering 	modern 	economic 	structures, 	it 	is
unreasonable to expect that LG Display would target Washington consumers
directly. 	Finding no jurisdiction could also encourage manufacturers to structure
their businesses to avoid direct 	activity in Washington to avoid 	liability. 	LG
Display should not avoid 	liability for any alleged harm simply because other
defendants might provide compensation.
We 	conclude 	that 	requiring 	LG 	Display 	to 	appear 	and 	defend 	in
Washington does not offend traditional notions of fair play and substantial justice.
The trial court could, consistently with due process, require LG Display to appear
in a Washington court and respond to the State's 	claims that its price-fixing
conspiracy harmed Washington consumers by forcing them to pay higher prices
for LCD products.
Attorney Fees
The State also challenges the trial court's award of attorney fees to LG
Display under RCW 4.28.185(5). 	Because LG Display no longer is a prevailing
party 	at this 	point, 	we 	reverse 	the trial 	court's 	attorney fee award 	without
addressing the State's argument.
Amicus Curiae
Costco Wholesale Corporation, acting as amicus curiae, raises two issues
not raised in the parties' briefing. 	Because "this court does not consider new
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NO. 69318-2-1/30
issues raised for the first time in an amicus brief,"78 we do not address these
issues.
CONCLUSION
Because Washington's exercise of jurisdiction 	in this 	case 	meets the
requirements of due process, we reverse the trial court's dismissal of the State's
action and its award of fees to LG Display. We remand this case for further
proceedings consistent with this opinion.
/-^**c^£
WE CONCUR:
l^ectee,
78 Protect the Peninsula's Future v. City of Port Angeles, 175 Wn. App.
201, 217, 304 P.3d 914 (citing Ruff v. King County, 125 Wn.2d 697, 704 n.2, 887
P.2d 886 (1995)), review denied, 178 Wn.2d 1022 (2013).
-30-