Supreme Court of Texas 

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No. 21-0130 

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The State of Texas, 

Petitioner, 

v. 

Volkswagen Aktiengesellschaft, 

Respondent

═══════════════════════════════════════

On Petition for Review from the 

Court of Appeals for the Third District of Texas 

═══════════════════════════════════════

~ consolidated for oral argument with ~ 

══════════

No. 21-0133 

══════════

The State of Texas, 

Petitioner, 

v. 

Audi Aktiengesellschaft, 

Respondent

═══════════════════════════════════════

On Petition for Review from the 

Court of Appeals for the Third District of Texas 

═══════════════════════════════════════
2 

JUSTICE DEVINE delivered the opinion of the Court, in which 

Justice Lehrmann, Justice Boyd, Justice Busby, Chief Justice 

Sudderth,1 and Justice Tijerina2 joined. 

JUSTICE HUDDLE filed a dissenting opinion, in which Chief Justice 

Hecht and Justice Bland joined. 

The State of Texas and several local governments brought civil 

actions to enforce state environmental laws against German automobile 

manufacturers that intentionally evaded compliance with federal 

emissions standards by embedding illegal, emissions-beating technology 

in branded vehicles. The issue in this highly unusual 

personal-jurisdiction dispute is whether Texas courts have specific 

jurisdiction over the manufacturers based on their intentional post-sale 

tampering with affected vehicles that were owned, operated, and 

serviced in Texas. 

After an affiliated, Virginia-based distributor independently sold 

more than half a million affected vehicles nationwide, the 

manufacturers developed software updates designed to further conceal 

and perpetuate continued operation of the defeat-device technology. 

Leveraging fake recall campaigns and routine service opportunities, the 

manufacturers specifically targeted affected vehicles by vehicle 

1 The Honorable Bonnie Sudderth, Chief Justice of the Court of Appeals 

for the Second District of Texas, sitting for JUSTICE BLACKLOCK by commission 

of the Honorable Greg Abbott, Governor of Texas, pursuant to section 22.005 

of the Texas Government Code. 

2 The Honorable Jaime E. Tijerina, Justice of the Court of Appeals for 

the Thirteenth District of Texas, sitting for JUSTICE YOUNG by commission of 

the Honorable Greg Abbott, Governor of Texas, pursuant to section 22.005 of 

the Texas Government Code. 
3 

identification number (VIN) and employed a distribution system under 

their contractual control to install the updates in vehicles serviced in 

Texas. The manufacturers released the software updates to servers in 

Germany that were synchronized with the distributor’s stateside server, 

which automatically made the updates available to the distributor’s 

Texas dealerships for installation through the manufacturers’ 

proprietary system in the targeted vehicles. The distributor and its 

dealerships were contractually required to fulfill the 

manufacturer-initiated recall and service campaigns when, as, and how 

the manufacturers directed. 

In the civil-enforcement actions, the manufacturers have 

contested personal jurisdiction on the basis that (1) any contacts with 

Texas were solely by the distributor and dealerships and cannot be 

imputed to the manufacturers and (2) any domestic contacts on the 

manufacturers’ part targeted the United States as a whole, not Texas 

specifically, because the contacts were undifferentiated in kind and 

quality among the vast majority of states. The determinative question 

is whether the manufacturers’ contacts with Texas, accomplished 

through direct and indirect control over instrumentalities and 

intermediaries, satisfy constitutional requisites to exercising specific 

personal jurisdiction. They do. 

The German manufacturers purposely structured their 

relationships with the distributor and dealerships to retain control over 

after-sale recalls and repairs and then used that control to tamper with 

vehicles in Texas after the initial sale to consumers. The manufacturers 

had—and exercised—the sole authority to initiate the recall and service 

campaigns at issue and provided and approved deceptive content for 
4 

related customer and dealership messaging. Under the terms of 

importer agreements, the distributor was contractually required to 

deploy its dealership network to implement the recall and service 

campaigns on vehicles the manufacturers had specifically identified, 

including tens of thousands of cars owned and operated in Texas. The 

distributor agreements also gave the manufacturers control over the 

dealership network in those recall and service actions, and the dealers 

used the manufacturers’ proprietary diagnostic system to install the 

tampering software in Texas. Unlike myriad software updates that 

might be accomplished in the ordinary course of consumer transactions 

with downloads initiated by the consumer or without regard to the 

consumer’s location, these contacts with Texas were not fortuitous or 

accomplished by the unilateral actions of third parties. 

We also do not agree that the manufacturers’ contacts were not 

purposefully directed at Texas simply because the same actions were 

also directed at other states. Personal jurisdiction is a forum-specific 

inquiry, and a defendant’s contacts with other states do not negate 

purposeful availment of this jurisdiction regardless of whether 

out-of-state contacts are more, less, or exactly the same.3 Because we 

agree with the trial court that the manufacturers are amenable to 

specific personal jurisdiction in Texas, we reverse the court of appeals’ 

judgment and remand to the trial court for further proceedings. 

3 See Luciano v. SprayFoamPolymers.com, LLC, 625 S.W.3d 1, 10 (Tex. 

2021). 
5 

I. Background 

 These consolidated interlocutory appeals arise from “Dieselgate,” 

a highly publicized scandal in which foreign automobile manufacturer 

Volkswagen Aktiengesellschaft (VW Germany) pleaded guilty in federal 

court to three felony counts for designing and intentionally installing 

parts and software to circumvent federal emissions standards by 

altering the way motor vehicles sold in the United States operated 

during emissions testing.4 Under federal law, “defeat devices” of this 

nature are illegal,5 and motor vehicles equipped with such devices may 

not be sold in any state.6 In defiance of the applicable regulatory 

4 The facts pertaining to the Dieselgate scandal are essentially 

uncontested and derive from the “Statement of Facts” incorporated into the 

plea agreement between the United States Department of Justice and 

VW Germany. As part of the plea agreement, VW Germany agreed it would 

“neither contest the admissibility of, nor contradict” those stipulated facts “in 

any proceeding.” 

5 Federal law provides that “[t]he following acts and the causing thereof 

are prohibited”: 

[F]or any person to manufacture or sell, or offer to sell, or install, 

any part or component intended for use with, or as part of, any 

motor vehicle or motor engine, where a principal effect of the 

part or component is to bypass, defeat, or render inoperative any 

device or element of design installed on or in a motor vehicle or 

motor vehicle engine in compliance with regulations under this 

subchapter, and where the person knows or should know that 

such part or component is being offered for sale or installed for 

such use or put to such use . . . . 

42 U.S.C. § 7522(a)(3)(B); see also 40 C.F.R. §§ 86.1803-01 (defining a defeat 

device), 18.1809-10–.1809-12 (prohibiting defeat devices), 86.1854-12 

(prohibited acts). 

6 See 42 U.S.C. §§ 7521(a)(4), 7525(a)(1), (a)(3)(A); see also id.

§ 7522(a)(3)(B). 
6 

requirements, VW Germany surreptitiously implanted defeat-device 

technology on half a million domestic vehicles for nearly a decade7—first 

to secure federal certifications necessary to sell the affected products in 

the U.S. and then again during routine-service and fabricated-recall 

campaigns initiated after those vehicles were already traversing 

roadways nationwide, including in Texas. After-sale tampering was 

employed to avoid mounting warranty expenses caused by defects in the 

original defeat-device technology and served to further conceal the 

artifice. In this opinion, we refer to automobiles equipped with 

defeat-device technology as “Affected Vehicles.” 

VW Germany implemented this unlawful scheme in concert with 

its majority-owned subsidiary, Audi Aktiengesellschaft (Audi),8 and 

through its wholly owned subsidiary, Volkswagen Group of America, 

Inc. (VW America), among others. Like VW Germany, Audi is a German 

car manufacturer incorporated under German law and headquartered 

in Germany. VW America, which is incorporated in New Jersey and 

headquartered in Virginia, serves as the exclusive importer and 

distributor for both VW Germany and Audi automobiles in the United 

States and its territories. In that capacity, VW America is responsible 

for the importation, distribution, marketing, and sale of Volkswagen 

and Audi products and is obligated to establish a network of authorized 

7 The scheme, which involved both the initial sale of vehicles and 

post-sale service tampering, was active from approximately May 2006 to 

November 2015. 

8 Audi is approximately 99.55% owned by VW Germany. 
7 

Volkswagen and Audi dealerships to carry out retail and after-sale 

services. 

VW Germany and Audi (collectively, the German manufacturers) 

have separate “Importer Agreements” with VW America predating the 

Dieselgate misconduct; those agreements remain in force today, having 

been continuously renewed and amended on occasion. As a general 

proposition, neither of the German manufacturers has a contractual 

relationship with or direct control over any of the dealerships. Nor do 

they instruct VW America in the operations of the dealership network; 

that responsibility belongs exclusively to VW America. 

But with regard to after-sale relationships with U.S. consumers, 

the Importer Agreements require (1) VW America to “establish, develop 

and maintain a competent, effective[,] and customer oriented after sales 

service to be provided through its [dealerships]” and (2) its dealerships 

“to perform campaign inspections and/or corrections for users of [the 

manufacturers’ vehicles] including recall campaigns.” “Upon notice of a 

recall or service campaign,” which may be initiated only by the German 

manufacturers, “[VW America] and/or its [dealerships] shall” perform 

warranty repairs or maintenance service “in accordance with [the 

German manufacturers’] instructions, guidelines[,] and/or procedures.”9 

These provisions of the Importer Agreements provide the German 

manufacturers with direct and indirect control over VW America and 

the dealerships for recall, warranty, and other service work. 

As discussed in more detail below, after the initial sale of Affected 

Vehicles by VW America and its dealers, the German manufacturers 

9 Emphasis added. 
8 

actuated their retained control over recall and service work to further 

tamper with the emissions-control systems on those vehicles. The 

manufacturers’ plot to circumvent environmental protection laws 

involved defeat devices installed both before and after the initial sale of 

Affected Vehicles, but this appeal concerns only the manufacturers’ 

secondary tampering. 

The entire scheme had its genesis in the enactment of stricter 

federal emissions standards in 1998. Although implementation of the 

new emissions standards occurred in phases, manufacturers were 

required to be in full compliance beginning with model year 2007 

vehicles. VW Germany has stipulated that, around 2006, certain of its 

“supervisors” realized that the company “could not design a diesel 

engine that would both meet the stricter U.S. . . . emissions standards 

. . . and [also] attract sufficient customer demand in the U.S. market.” 

So, rather than create and market “a diesel vehicle that could 

legitimately meet the new, more restrictive” standards, VW Germany 

and Audi contrived to deceive U.S. regulators and customers about the 

ability of more than a dozen Volkswagen and Audi models to comply 

with those standards. 

To make it appear as if the Affected Vehicles met U.S. emissions 

standards when, in fact, they did not, VW Germany “designed, created, 

and implemented a software function to detect, evade and defeat U.S. 

emissions standards”—that is, an illegal defeat device.10 VW Germany 

10 The original defeat-device technology incorporated in Volkswagen 

and Audi models with 2.0-liter engines functioned differently from the 

defeat-device technology in models with 3.0-liter engines, but because the 

post-sale tampering at issue here concerns only vehicle models with 2.0-liter 
9 

began by borrowing Audi’s original concept of the “dual-mode, emissions 

cycle-beating software[.]” VW Germany’s iteration of the software, 

which Audi tested for compatibility with its own vehicles, was designed 

“to recognize whether the vehicle was undergoing standard U.S. 

emissions testing” or was “being driven on the road under normal 

driving conditions.” If the software detected that the vehicle was 

undergoing emissions testing, the vehicle performed in a mode that 

would satisfy U.S. emissions standards. If the software detected that 

the vehicle was not being tested, it operated in a different mode that 

reduced the effectiveness of its emission-control system and produced 

“substantially higher” emissions during normal driving conditions. 

Starting with model year 2009, the German manufacturers installed 

defeat devices or caused defeat-device technology to be installed in 

certain vehicles falsely marketed and sold in the United States as “clean 

diesel” and “environmentally friendly.” 

After a few years, Affected Vehicles throughout the United States 

began to develop hardware failures. These vehicles “were not designed 

to be driven for longer periods of time” in “testing mode,” and 

VW Germany’s engineers began to suspect that the defeat devices 

remained in test mode for too long, causing increased stress on the 

exhaust system. Over time, this caused the diesel particulate filter in 

Affected Vehicles to overheat and crack. The expensive repairs were 

covered by the manufacturers’ warranties and executed by local 

engines, we confine our discussion to the development and implementation of 

that software and its updates. 
10 

Volkswagen and Audi dealerships in VW America’s dealership network, 

including those in Texas. 

Although VW America’s dealerships were charged with making 

warrantied and recall repairs on Volkswagen and Audi vehicles, the 

Importer Agreements ultimately placed the financial burden of those 

repairs on the German manufacturers. The dealers paid the initial cost 

of warrantied and recall repairs, but VW America would reimburse the 

dealers for that work, and then, as required by the Importer 

Agreements, the German manufacturers would reimburse VW America. 

The German manufacturers, by practice, not by contract, made their 

reimbursement payments to VW America in the aggregate for costs 

incurred nationwide. 

To reduce escalating warranty expenditures and further conceal 

the defeat devices, the German manufacturers conspired to install 

updated software in post-sale Affected Vehicles throughout the United 

States, including Texas. To make this happen, they took two actions. 

First, without disclosing the true purpose of the software updates, they 

initiated voluntary recalls of Affected Vehicles so that software “fixes” 

could be installed on each recalled vehicle.11 Second, they arranged for 

the software to be updated when customers brought their cars in for 

normal maintenance, again without disclosing the true purpose of the 

updates.12 To identify which cars should receive the updates, 

11 In re Volkswagen “Clean Diesel” Mktg., Sales Pracs., & Prods. Liab. 

Litig., 959 F.3d 1201, 1208-09 (9th Cir. 2020) (recounting the facts stipulated 

in the plea agreement consistent with the record in this Court). 

12 Id. 
11 

VW Germany listed “in a specific system each and every VIN number of 

those vehicles that [were] affected by the recall.” When targeted 

vehicles were brought into local dealerships—either in response to the 

recall or for other services—the software updates were installed via the 

German manufacturers’ proprietary diagnostic system, which was 

designed for use on a worldwide basis. The software was available for 

these local updates via “automated download” after the manufacturers 

uploaded the updates to a “mirror server” in Germany that was 

“synchronized” with a “mirror server” VW America hosts in the United 

States. As soon as the software was available on VW America’s server, 

the manufacturers’ proprietary diagnostic system in each local 

dealership had access to it and would “transmit” it into targeted vehicles 

when presented for repair or service work. Before the German 

manufacturers uploaded the software to the mirror servers, 

VW America provided the manufacturers with a list of the dealers that 

would receive the updated software, which included dealers in Texas. 

At no point was the true purpose of the updated software 

disclosed. Rather, “[i]n each scenario, the [German manufacturers] 

deceptively told [federal] regulators and American consumers that the 

software updates were intended to improve the operation of the 

[Affected] Vehicles.”13 All told, the initiative targeted 28,898 specifically 

identified Volkswagen and Audi vehicles in Texas, and of those targets, 

the post-sale tampering software was installed at Texas dealerships on 

23,316 vehicles—a fact the German manufacturers do not dispute. For 

13 Id. 
12 

many of those vehicles, tampering occurred several years after the 

initial sale.14 

The jig was up about eight years after the German manufacturers 

first conspired to ship Affected Vehicles to the United States. Around 

that time, an “independent study . . . revealed that certain Volkswagen 

vehicles emitted air pollutants at concentrations of up to approximately 

40 times the permissible limit,” causing the Environmental Protection 

Agency (EPA) to commence an investigation.15 While the investigation 

was ongoing, and almost ten years after the deception’s inception, a 

Volkswagen whistleblower informed federal regulators about the defeat 

devices. Under increasing pressure, the car companies came clean about 

the entire scheme. 

The EPA pursued criminal charges against VW Germany for 

violating the federal Clean Air Act. VW Germany pleaded guilty to 

those charges and agreed to pay a criminal fine of $2.8 billion to the 

federal government. The EPA also filed a civil-enforcement action 

against the German manufacturers, VW America, and others. The civil 

claims were settled in a series of partial consent decrees that allocated 

$209 million to the State of Texas for environmental remediation, 

$1.45 billion in relief for Texas consumers, and more than $92 million to 

compensate Texas dealers.16 According to counsel for the German 

14 Post-sale tampering generally occurred from 2014 to 2016 with 

Affected Vehicle models dating back to 2009. Of the vehicles receiving the 

software updates, 487 were Audi models. 

15 Id. (internal quotation marks omitted). 

16 Volkswagen Aktiengesellschaft v. State, Nos. 03-19-00453-CV, 

03-20-00022-CV, ___ S.W.3d ___, 2020 WL 7640037, at *2 (Tex. App.—Austin 
13 

manufacturers, “Texas and its residents stand to recover more than 

$1.35 billion from the federal actions.”17 

Notably, neither the plea agreement nor the consent decrees gave 

the German manufacturers any express protection from similar lawsuits 

by state or local governments. “To the contrary, each state expressly 

reserved its ability to sue Volkswagen for damages,”18 and the State of 

Texas did just that. 

Initially, the State filed an environmental-enforcement action 

against only VW America, Audi of America,19 and Porsche Cars North 

America, Inc. (collectively, the American defendants), asserting 

violations of the Texas Clean Air Act and environmental regulations and 

seeking civil penalties and injunctive relief. After several Texas 

counties did the same, the lawsuits were transferred to a multidistrict 

litigation (MDL) pretrial court. In these proceedings, the parties refer 

to claims based on the original “factory installation of defeat devices” on 

Dec. 22, 2020) (Volkswagen AG). The extent of the German manufacturers’ 

total liability resulting from the federal proceedings is unclear, but it exceeds 

$20 billion, including the $2.8 billion fine. See Volkswagen “Clean Diesel” 

Mktg., 959 F.3d at 1209. 

17 See Volkswagen AG, ___ S.W.3d at ___, 2020 WL 7640037, at *2. 

Counsel made the same representation to this Court. 

18 Volkswagen “Clean Diesel” Mktg., 959 F.3d at 1209 & n.10. 

19 Audi of America is a wholly owned subsidiary of VW America. 

According to the record, the entity is “used for accounting purposes[] and is not 

engaged in the import or distribution of Audi vehicles. Audi vehicles are sold 

to authorized Audi dealers in the United States by VW America under the 

trade name . . . ‘Audi of America, Inc.’ No subsidiary of Audi is involved in the 

import or distribution of Audi vehicles in the United States.” 
14 

Affected Vehicles as “original tampering” claims.20 They use the term 

“recall tampering” to describe the “allegations that after the [A]ffected 

[V]ehicles had been sold to consumers, the [German and American] 

entities tampered with those vehicles through software updates to the 

defeat devices that were installed at dealerships as part of nationwide 

recall campaigns or when cars were brought in for servicing.”21 

Before the State sued the German manufacturers, the American 

defendants moved for summary judgment, arguing that the federal 

Clean Air Act preempts claims under the Texas Clean Air Act. The State 

filed a response in opposition to the summary-judgment motion and, on 

the same day, added VW Germany and Audi as defendants in the 

lawsuit. Shortly thereafter, the American defendants once again moved 

for summary judgment based on preemption.22 The trial court granted 

summary judgment as to the original-tampering claims but denied it as 

to the recall-tampering claims. 

The German manufacturers filed special appearances contesting 

personal jurisdiction in Texas with respect to the after-sale recall- and 

service-tampering claims, which were the only live claims remaining at 

that time.23 The parties conducted discovery directed to the 

20 Volkswagen AG, ___ S.W.3d at ___, 2020 WL 7640037, at *2. 

21 Id. at *3. 

22 The record does not reflect that the trial court ever ruled on the first 

summary-judgment motion. 

23 See TEX. R. CIV. P. 120a. The State’s Fourth Amended Petition, to 

which the German manufacturers filed their First Amended Special 

Appearance and First Amended Answer, alleges violations of the following: 

TEX. HEALTH & SAFETY CODE § 382.085(b) (Texas Clean Air Act’s prohibition 
15 

jurisdictional issue, and after separate hearings without live testimony, 

the trial court denied the special appearances. No findings of fact or 

conclusions of law were requested or provided, so in this opinion, we 

recount the evidence in the light most favorable to the trial court’s 

jurisdictional ruling, as we must.24 

Having lost on their jurisdictional challenges, the German 

manufacturers perfected separate interlocutory appeals, which the 

court of appeals consolidated for consideration.25 By then, the State had 

ostensibly abandoned any argument that the German manufacturers 

were subject to general jurisdiction in Texas. With the inquiry narrowed 

to whether Texas courts may exercise specific jurisdiction over 

VW Germany and Audi, a divided court of appeals reversed the trial 

court’s order and dismissed the claims against the German 

manufacturers.26

In finding personal jurisdiction lacking, the majority concluded 

that VW Germany and Audi had not purposefully availed themselves of 

the privilege of conducting activities in Texas because “[a]t most, the 

evidence in the record establishes that [they] directed recall-tampering 

on unauthorized emissions); TEX. WATER CODE §§ 7.101–.102 (penalty statutes 

for violating the Texas Clean Air Act and environmental regulations); TEX.

WATER CODE § 7.032 (statute authorizing injunctive relief for violating the 

Texas Clean Air Act and environmental regulations); and 30 TEX. ADMIN. CODE

§ 114.20(b), (e) (motor vehicle anti-tampering regulations). This petition was 

the live pleading when the trial court ruled on the special appearances. 

24 See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794-95 

(Tex. 2002). 

25 See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(7). 

26 Volkswagen AG, ___ S.W.3d at ___, 2020 WL 7640037, at *1. 
16 

conduct toward the United States as a whole, not to Texas specifically.”27 

The dissent would have held that the German manufacturers are subject 

to personal jurisdiction in Texas because even though they directed their 

after-sale tampering “to the United States as a whole,” they necessarily 

directed those activities to Texas as well.28 “To hold otherwise,” opined 

the dissent, “is to hold that by targeting every state, a foreign 

manufacturer is not accountable in any state.”29 

After consolidating the VW Germany and Audi cases for briefing, 

we granted the State’s petitions for review to consider, among other 

things, whether a foreign defendant can be subject to specific 

jurisdiction in this forum when its contacts with Texas are 

undifferentiated from its contacts with other states. 

II. Discussion 

 Texas courts may assert personal jurisdiction over a nonresident 

defendant if (1) the Texas long-arm statute so provides and (2) the 

exercise of jurisdiction “is consistent with federal and state due process 

guarantees.”30 “Our long-arm statute reaches as far as the federal 

constitutional requirements for due process will allow,”31 so Texas courts 

27 Id. at *5. 

28 Id. at *10 (Triana, J., dissenting). 

29 Id. 

30 Spir Star AG v. Kimich, 310 S.W.3d 868, 872 (Tex. 2010). 

31 Id. (internal quotation marks omitted); see BMC Software Belg., N.V. 

v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002) (the long-arm statute “extends 

Texas courts’ personal jurisdiction as far as the federal constitutional 

requirements of due process will permit[, so] we rely on precedent from the 

United States Supreme Court and other federal courts, as well as our own 
17 

may exercise personal jurisdiction over foreign defendants “having such 

‘contacts’ with the forum [s]tate that ‘the maintenance of the suit’ is 

‘reasonable[] in the context of our federal system of government’ and 

‘does not offend traditional notions of fair play and substantial 

justice.’”32 This “minimum contacts” inquiry is a “forum-by-forum” or 

“sovereign-by-sovereign”33 analysis that examines “the nature and 

extent of ‘the defendant’s relationship to the forum’”34 to determine 

whether the defendant is amenable to general or specific jurisdiction.35

General jurisdiction—which is not alleged here—arises when a 

defendant’s contacts with the forum state are so “continuous and 

systematic” that the defendant is “essentially at home.”36 This kind of 

personal jurisdiction allows courts to render a binding judgment against 

a defendant even if the plaintiff’s claims neither arise from activities 

State’s decisions, in determining whether a nonresident defendant has met its 

burden to negate all bases of jurisdiction” (internal quotation marks and 

citations omitted)); see also TEX. CIV. PRAC. & REM. CODE § 17.042 (Texas 

long-arm statute). 

32 Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1024 

(2021) (quoting Int’l Shoe Co. v. State of Wash., Off. of Unemployment Comp. 

& Placement, 326 U.S. 310, 316-17 (1945)); see Searcy v. Parex Res., Inc., 496 

S.W.3d 58, 66 (Tex. 2016) (“[F]ederal due process requirements shape the 

contours of Texas courts’ jurisdictional reach[.]”). 

33 J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 884 (2011) 

(plurality opinion); accord Luciano v. SprayFoamPolymers.com, LLC, 625 

S.W.3d 1, 10 (Tex. 2021) (citing Keeton v. Hustler Mag., Inc., 465 U.S. 770, 

779-80 (1984)). 

34 Ford Motor Co., 141 S. Ct. at 1024 (quoting Bristol-Myers Squibb Co. 

v. Superior Ct. of Calif., S.F. Cnty., 137 S. Ct. 1773, 1779 (2017)). 

35 E.g., Spir Star AG, 310 S.W.3d at 872. 

36 E.g., Luciano, 625 S.W.3d at 8; Searcy, 496 S.W.3d at 72. 
18 

conducted in the forum state nor “relate to the forum [s]tate or the 

defendant’s activity there.”37 Under general-jurisdiction principles, the 

cause of action “may concern events and conduct anywhere in the world,” 

subject to certain “correlative limit[s].”38 

“Specific jurisdiction is different: It covers defendants less 

intimately connected with [the forum state], but only as to a narrower 

class of claims.”39 Courts can exert specific jurisdiction over a 

nonresident defendant when (1) the defendant engages in “some act by 

which [it] purposefully avails itself of the privilege of conducting 

activities within the forum [s]tate” and (2) the plaintiff’s claims “arise 

out of or relate to” those forum contacts.40 This kind of personal 

jurisdiction involves a “claim-by-claim”41 analysis that focuses on the 

relationship between the defendant, the forum state, and the operative 

facts of the litigation.42

A court’s authority to exercise jurisdiction over a nonresident 

defendant is a question of law we review de novo.43 If the plaintiff meets 

37 Ford Motor Co., 141 S. Ct. at 1024. 

38 Id. 

39 Id. 

40 Id. at 1024-25 (2021) (alteration in original) (quoting Hanson v. 

Denckla, 357 U.S. 235, 253 (1958), and Bristol-Myers, 137 S. Ct. at 1780); see

Luciano, 625 S.W.3d at 8-9. 

41 Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 

2013). 

42 Id. 

43 E.g., Spir Star AG v. Kimich, 310 S.W.3d 868, 871 (Tex. 2010); BMC 

Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). 
19 

its initial burden to plead allegations sufficient to confer personal 

jurisdiction, the burden shifts to the defendant to negate all 

jurisdictional bases alleged.44 “When, as here, the trial court does not 

issue findings of fact and conclusions of law, we imply all relevant facts 

necessary to support the judgment that are supported by evidence.”45 “If 

the parties present conflicting evidence that raises a fact issue, we will 

resolve the dispute by upholding the trial court’s determination.”46

The controlling issue in this appeal is whether the relevant facts 

give rise to specific jurisdiction over the German manufacturers. 

Primarily, the parties debate whether the foreign defendants have any 

contacts with Texas at all and, if so, whether those contacts satisfy the 

“purposeful availment” requirement. The German manufacturers 

essentially concede that, if minimum contacts exist, the exercise of 

specific jurisdiction would comport with traditional notions of fair play 

and substantial justice.47 

A. Purposeful Availment 

“The ‘touchstone of jurisdictional due process’ is ‘purposeful 

availment.’”48 “At its core, the purposeful availment analysis . . . 

44 BMC Software, 83 S.W.3d at 793; see TV Azteca v. Ruiz, 490 S.W.3d 

29, 36 n.4 (Tex. 2016) (describing the burden-shifting process). 

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

46 TV Azteca, 490 S.W.3d at 36 n.4. 

47 See Moncrief Oil, 414 S.W.3d at 154-55 (“If a nonresident has 

minimum contacts with the forum, rarely will the exercise of jurisdiction over 

the nonresident not comport with traditional notions of fair play and 

substantial justice.”). 

48 TV Azteca, 490 S.W.3d at 45 (quoting Michiana Easy Livin’ Country, 

Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005)). 
20 

determine[s] whether a nonresident’s conduct and connection to a forum 

are such that it could reasonably anticipate being haled into court 

there.”49 Whether a nonresident defendant has “purposefully availed 

itself of the privilege of conducting activities in Texas” is guided by three 

considerations: 

 “[O]nly the defendant’s contacts with the forum are relevant, 

not the unilateral activity of another party or a third person”; 

 “The contacts relied upon must be purposeful,” not “random, 

fortuitous, or attenuated”; and 

 The defendant “must seek some benefit, advantage[,] or profit 

by availing itself of [Texas’s] jurisdiction.”50

“This analysis assesses the quality and nature of the contacts, not the 

quantity.”51

 The two somewhat novel purposeful-availment issues we consider 

here are: (1) whether the German manufacturers are accountable for 

forum-state contacts effectuated through legally distinct intermediaries 

that were acting at the German manufacturers’ direction and under 

their contractual control with respect to the recall and service 

campaigns; and (2) whether directing the same activity at multiple 

states negates purposeful availment of an individual state absent other, 

more differentiated, conduct directed to that forum. We resolve both 

issues favorably to the trial court’s jurisdictional ruling and hold that 

the German manufacturers’ after-sale recall- and service-tampering 

49 Moncrief Oil, 414 S.W.3d at 152. 

50 Id. at 151. 

51 Id. 
21 

activities give rise to sufficient minimum contacts to sustain specific 

personal jurisdiction.52

B. Minimum Contacts 

Citing our decisions in Spir Star AG v. Kimich53 and Luciano v. 

SprayFoamPolymers.com, LLC,54 the State argues that, despite lacking 

a physical presence in Texas, the German manufacturers conducted 

activities in Texas that are sufficient to sustain the exercise of specific 

personal jurisdiction. The State does not rely on alter ego or 

veil-piercing theories to fuse the German manufacturers with VW 

America or the local dealerships. Instead, the State asserts that the 

German manufacturers affirmatively used their control over 

VW America and its local dealerships to carry out after-sale recall- and 

service-tampering campaigns in Texas that violated our laws and, in 

doing so, established contacts with Texas that are directly attributable 

to the foreign defendants. These contacts, the State says, are no mere 

fortuity but rather an orchestrated and intentional scheme, and because 

the contacts were made at the German manufacturers’ behest and under 

their direction, they do not derive from the unilateral activity of 

VW America, the local dealerships, the State, or its residents. Arguing 

to the contrary, the German manufacturers contend that the State has 

not shown that the German manufacturers themselves, as opposed to 

52 Although the State argues that sufficient “plus” factors exist even as 

to the initial sales, we need not consider that argument. 

53 310 S.W.3d 868 (Tex. 2010). 

54 625 S.W.3d 1 (Tex. 2021). 
22 

VW America, have “specifically targeted” Texas or taken any steps 

purposefully directed towards the Texas market. 

We agree with the State that the German manufacturers have 

established contacts with Texas by using their direct contractual control 

over VW America and their direct and indirect contractual control over 

the dealerships. The German manufacturers structured their business 

relationships so that neither VW America nor the dealerships had 

control over how the Affected Vehicles were modified by the software 

updates that occurred inside this state. The record bears evidence that: 

 The German manufacturers had the sole authority to initiate and 

direct after-sale recall and service campaigns; 

 The German manufacturers used that authority to initiate and 

direct recall and service tampering of specifically identified 

vehicles that were owned, operated, and serviced in Texas;

 VW Germany developed the tampering software based on Audi’s 

original design; Audi contributed to the connivance and software 

development by testing the updates for compatibility with Audi 

cars; both manufacturers caused the defeat-device software to be 

uploaded to “mirror servers” that “automated” downstream 

delivery to the point of installation in Texas; and before deploying 

the software to the mirror servers, both manufacturers knew 

which local dealerships would receive the updates; 

 The software was installed in Texas vehicles using the German 

manufacturers’ proprietary diagnostic system; 

 VW America was contractually required to perform recall and 

service campaigns, and it did so, at the manufacturers’ directive 

and in accordance with their instructions; 

 VW America claims that it was an unwitting dupe that knew 

nothing about either the original tampering or the recall and 

service tampering, but whether that is true or not, the record 
23 

bears evidence that its servers were a mere conduit for passing 

the manufacturers’ software updates through to the local 

dealerships; 

 As mandated by the Importer Agreements, VW America caused 

its dealerships to install the software updates on behalf of and at 

the initiation, direction, and instruction of the German 

manufacturers; 

 As mandated by the Importer Agreements, Texas dealerships 

installed the software updates in the targeted vehicles in 

accordance with the manufacturers’ instructions; 

 VW Germany supplied, and Audi approved, false messaging 

about the purpose of the recalls and software updates, which 

VW America was obligated to disseminate to dealerships and 

customers, including those in Texas;55 and 

 The German manufacturers reimbursed the local dealers, by and 

through VW America, for the manufacturer-mandated after-sale 

services physically rendered to customers in Texas. 

While personnel at VW America’s Texas dealerships may have “clicked 

the button” to download the tampering software to the Affected Vehicles, 

the process was essentially put into unstoppable motion by the 

manufacturers and did not derive from unilateral or independent action 

of VW America, the dealerships, or their customers. By directing an 

affiliated importer/distributor to carry out the recall and service 

55 VW America drafted letters to customers, as well as “documents that 

would communicate the change or the field fix to the dealerships,” but 

information in the customer letter came from a campaign data sheet 

VW Germany prepared. For example, in one customer letter, in answer to the 

question “What is the issue, and what will we do?”, VW Germany provided text 

falsely stating that “the vehicle engine’s management software has been 

improved to assure your vehicle’s tailpipe emissions are optimized and 

operating efficiently—well beyond given government standards.” 
24 

campaigns—knowing the importer/distributor and the local dealerships 

were contractually obligated to do so when, as, and how instructed—the 

German manufacturers purposefully availed themselves of the Texas 

market to consummate their illegal scheme. 

 Whether the German manufacturers’ purposeful actions are 

characterized as direct or indirect contacts with Texas is, as the State’s 

counsel put it, a “metaphysical” distinction without a difference to the 

outcome of this case.56 The personal-jurisdiction analysis does not 

depend on “mechanical tests” but on a qualitative assessment of any 

relevant conduct demonstrating purposeful availment.57 If, as all agree, 

the core inquiry is whether the German manufacturers could reasonably 

anticipate being haled into a Texas court, that standard is met in this 

unprecedented case based on evidence of (1) the German manufacturers’ 

intentional conduct; (2) their knowing use of an established and 

preexisting distribution system—which they controlled in the relevant 

way—to bring their jointly developed software to Texas to alter the 

56 See Spir Star AG v. Kimich, 310 S.W.3d 868, 874 (Tex. 2010) 

(“[P]urposeful availment of local markets may be either direct (through one’s 

own offices and employees) or indirect (through affiliates or independent 

distributors).”). 

57 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478 (1985) (“The Court 

long ago rejected the notion that personal jurisdiction might turn on 

‘mechanical’ tests.”); Int’l Shoe Co. v. State of Wash., Off. of Unemployment 

Comp. & Placement, 326 U.S. 310, 319 (1945) (“[T]he criteria by which we mark 

the boundary line between those activities which justify the subjection of a 

corporation to suit, and those which do not, cannot be simply mechanical or 

quantitative. . . . Whether due process is satisfied must depend rather upon 

the quality and nature of the activity in relation to the fair and orderly 

administration of the laws which it was the purpose of the due process clause 

to insure.”).
25 

Affected Vehicles post-sale; (3) the “automated download” of the 

software through a conduit server for installation on targeted Texas 

vehicles; and (4) use of the manufacturers’ proprietary diagnostic system 

to install the software in Texas. The purposefulness of those forum 

contacts is not diminished in any way by the pervasiveness of the 

manufacturers’ recall-tampering scheme. 

1. The German Manufacturers’ Contacts 

The notion that a defendant may submit to a forum’s jurisdiction 

without physically entering the forum state is, of course, 

“unexceptional.”58 A paradigmatic example is when “manufacturers or 

distributors ‘seek to serve’ a given [s]tate’s market.”59 In such 

circumstances, courts often rely on “metaphors” as proxies for the 

purposeful-availment inquiry.60 In this case, the State asserts that the 

German defendants are amenable to jurisdiction in Texas under a 

“stream-of-commerce-plus” theory61 and also based on purposeful 

conduct designed to obstruct state law.62 We find both concepts 

informative. 

Under a stream-of-commerce-plus framework, “‘a nonresident 

who places products into the “stream of commerce” with the expectation 

58 J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 882 (2011) 

(plurality opinion). 

59 Id. 

60 Id. at 881-82. 

61 See Spir Star, 310 S.W.3d at 873 (explaining that our precedent 

generally follows this stream-of-commerce-plus theory). 

62 See Nicastro, 564 U.S. at 880 (plurality opinion) (“As a general rule, 

the sovereign’s exercise of power requires some act by which the defendant 
26 

that they will be sold in the forum state’ may be subject to personal 

jurisdiction in the forum.”63 In contrast, mere foreseeability that a 

product might ultimately end up in a particular forum does not alone 

constitute purposeful availment.64 When the stream of commerce only 

fortuitously deposits a product in the forum state, a nonresident 

manufacturer will be subject to the forum’s jurisdiction only if additional 

conduct—often referred to as a “plus factor”—evinces the 

manufacturer’s intent to serve that market.65 This analytical construct 

is frequently used in products-liability cases to determine whether 

specific jurisdiction exists.66 When a nonresident manufacturer has no 

knowledge, care, or control over where a product ends up, this and other 

courts require some “plus factor” to establish purposeful availment. 

Examples include “marketing the product through a distributor who has 

agreed to serve as the sales agent in the forum [s]tate” or “creating, 

‘purposefully avails itself of the privilege of conducting activities within the 

forum [s]tate, thus invoking the benefits and protections of its laws,’ though in 

some cases, as with an intentional tort, the defendant might well fall within 

the [s]tate’s authority by reason of his attempt to obstruct its laws.” (citations 

omitted) (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958))). 

63 TV Azteca v. Ruiz, 490 S.W.3d 29, 46 (Tex. 2016) (emphasis added) 

(quoting Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 576-77 (Tex. 

2007)). 

64 E.g., CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex. 1996) 

(“[F]oreseeability alone will not support personal jurisdiction. The defendant 

must take an action ‘purposefully directed toward the forum state’ to be subject 

to the jurisdiction of its courts.” (emphasis added) (quoting Asahi Metal Indus. 

Co. v. Superior Ct. of Cal., Solano Cnty., 480 U.S. 102, 112 (1987) (plurality 

opinion))). 

65 Asahi, 480 U.S. at 112 (plurality opinion). 

66 E.g., CMMC v. Salinas, 929 S.W.2d 435, 440 (Tex. 1996). 
27 

controlling, or employing the distribution system that brought the 

product into the forum state.”67 

Unlike the initial sales of Affected Vehicles, which might invoke 

the stream-of-commerce-plus framework, this case does not involve a 

typical stream-of-commerce scenario. With respect to the 

recall-tampering claims at issue here, Affected Vehicles were already in 

Texas when the German defendants reached in to modify those vehicles 

in ways that allegedly violate state law. But even though this is not a 

stream-of-commerce case, “plus” factors we have recognized are 

informative and strikingly similar to how the German manufacturers’ 

defeat-device software updates and recall and service messaging were 

brought to Texas dealers and consumers. 

In Spir Star, a products-liability case, we employed a 

stream-of-commerce-plus analysis in holding that a foreign 

manufacturer was amenable to specific jurisdiction in Texas because it 

had marketed its product through an independent distributor who 

“agreed to serve as the sales agent” in Texas.68 We observed that, “[j]ust 

as manufacturers cannot escape liability for defective products by 

selling them through a subsidiary or distributor, neither can they avoid 

jurisdiction related to such claims by the same means.”69

67 Luciano v. SprayFoamPolymers.com, LLC, 625 S.W.3d 1, 10, 12 (Tex. 

2021). 

68 Spir Star AG v. Kimich, 310 S.W.3d 868, 875 (Tex. 2010) (“[B]y 

‘marketing [its] product through a distributor who has agreed to serve as the 

sales agent in the forum state,’ [the manufacturer] has met [the] ‘additional 

conduct standard.’”). 

69 Id. 
28 

Likewise, in Luciano, we held that an out-of-state manufacturer 

was subject to specific jurisdiction in Texas because it employed an 

independent-contractor sales agent who served as the manufacturer’s 

“boots on the ground” in marketing and selling its products in Texas.70 

In finding specific jurisdiction existed over the out-of-state 

manufacturer, the “quality and nature” of the salesman’s role evinced 

the defendant’s “‘intent or purpose’ to target the Texas market.”71 As in 

Spir Star, our holding in Luciano affirms that acting through a 

“distributor-intermediary” or an agent with “boots on the ground” to 

intentionally target Texas as the marketplace for a product “provides no 

haven from the jurisdiction of a Texas court.”72 

Analogous conduct happened here, and the same result obtains. 

The plain and express terms of the Importer Agreements grant the 

German manufacturers control over both VW America and its network 

of dealerships, including those in Texas, for purposes of carrying out 

recall and service campaigns. Neither VW America nor the dealerships 

had discretion to initiate or refuse to implement a recall or service 

campaign. When the German manufacturers initiated those campaigns, 

VW America was required to fall in line at their say-so and to compel 

the dealerships to do the same. Indeed, the German manufacturers 

have admitted that they had the exclusive prerogative to institute a 

recall. 

70 625 S.W.3d at 12. 

71 Id. 

72 Id.; Spir Star, 310 S.W.3d at 871. 
29 

Importantly, the Importer Agreements also specifically and 

directly compel local Volkswagen and Audi dealerships to perform recall 

and service campaigns “in accordance with [the German 

manufacturers’] instructions, guidelines[,] and/or procedures.”73 

Although the German manufacturers’ software updates and 

instructions for conducting the after-sale tampering may have passed to 

the dealerships through VW America, that circumstance did not 

displace the German manufacturers’ actual and contractual control over 

the entire scheme and each level of the distribution stream. Consistent 

with the terms of the Importer Agreements and the testimony of 

VW Germany’s corporate representative, VW America’s corporate 

representative described the subsidiary as a mere “passthrough 

department given information by [VW Germany]” about recall and 

service campaigns, noting the company provided required signatures for 

relevant documents without always having the information necessary to 

ascertain whether the documents’ contents were true and correct. After 

developing the software updates and deploying them for downstream 

delivery, the German manufacturers used the dealerships as their 

“boots on the ground” for after-sale recall- and service-campaign 

purposes in two ways: (1) by issuing directives, instructions, and 

73 The Importer Agreements do not distinguish between the German 

manufacturers’ control over VW America and its “Contractual Enterprises,” 

requiring that “[VW America] and/or its Contractual Enterprises shall 

[perform], in accordance with [the German manufacturers’] instructions, 

guidelines[,] and/or procedures . . . warranty repairs and/or service and repair 

Contractual Products.” (Emphasis added.) The agreements define “Contractual 

Enterprises” as the dealers authorized to distribute, sell, or service the 

manufacturers’ vehicles. 
30 

procedures that both VW America and the dealerships were 

contractually obligated to obey and (2) by providing the proprietary 

diagnostic system through which each Texas dealership downloaded and 

installed the tampering software into Affected Vehicles.74 

We acknowledge, as we must, that parent and subsidiary 

corporations are presumed to be separate from one another.75 

Accordingly, to “ascribe one corporation’s actions to another by 

disregarding their distinct corporate entities” or to “‘fuse’ the parent 

company and its subsidiary for jurisdictional purposes, the plaintiff[] 

must prove the parent controls the internal business operations and 

74 See Luciano, 625 S.W.3d at 12 (noting the “reality” that the foreign 

manufacturer had taken purposeful steps to “tap[] into the local market” using 

an independent “sales agent” as its “boots on the ground”); see also, e.g., Cmty. 

Health Sys. Pro. Servs. Corp. v. Hansen, 525 S.W.3d 671, 691 (Tex. 2017) 

(explaining that an agency relationship exists if the agent has consented to act 

on the principal’s behalf and subject to the principal’s control and the principal 

has authorized the agent to act on his behalf); Wilburn v. Valliance Bank & 

Coleman & Patterson LLC, No. 05-14-00965-CV, 2015 WL 9281271, at *3 (Tex. 

App.—Dallas Dec. 21, 2015, no pet.) (mem. op.) (observing that “[a]n agency 

relationship is created” under an actual-authority theory “when the principal: 

(1) intentionally confers authority on the agent; (2) intentionally allows the 

agent to believe he has authority; or (3) allows the agent to believe that he has 

authority to act by lack of due care” on the principal’s part); Gonzales v. Am. 

Title Co. of Hous., 104 S.W.3d 588, 593 (Tex. App.—Houston [1st Dist.] 2003, 

pet. denied) (“An agent is a person or entity who (1) is authorized to act for 

another and (2) is subject to the control of the other.”). 

75 BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 798 (Tex. 

2002); see Hargrave v. Fibreboard Corp., 710 F.2d 1154, 1159 (5th Cir. 1983) 

(“Generally, a foreign parent corporation is not subject to the jurisdiction of a 

forum state merely because its subsidiary is present or doing business there; 

the mere existence of a parent–subsidiary relationship is not sufficient to 

warrant the assertion of jurisdiction over the foreign parent.”); id. at 1161 

(explaining that a Texas parent company’s contacts could not be imputed to 

the foreign subsidiary because the subsidiary and parent maintained “a degree 

of corporate separation that was more than superficial”). 
31 

affairs of the subsidiary” to a degree “greater than that normally 

associated with common ownership and directorship.”76 

In this case, however, we need not disregard corporate 

separateness or fuse the intermediaries with the German 

manufacturers based on alter ego or any other veil-piercing theory to 

give effect to the contractual relationship the parties designed with 

regard to the specific mechanism by which the wrongful conduct 

occurred in Texas. The German manufacturers’ control over the entire 

scheme—control granted and exercised by them under the Importer 

Agreements—allowed them to perpetrate a fraud on this state and its 

citizens under the guise of recall and service campaigns. While the 

German manufacturers could have organized their business 

relationships to insulate themselves from forum-state contacts, they did 

not do so with respect to the actions that form the basis of the State’s 

claims here. They cannot now use their mere passthrough department 

as a “haven from the jurisdiction of a Texas court.”77 

2. Purposeful, Not Fortuitous 

This brings us to the question of whether the German 

manufacturers can avoid personal jurisdiction in Texas merely because 

the after-sale tampering activities they controlled were part of a 

76 BMC Software, 83 S.W.3d at 798-99. “[T]he evidence must show that 

the two entities cease to be separate so that the corporate fiction should be 

disregarded to prevent fraud or injustice.” Id. at 799. 

77 Spir Star, 310 S.W.3d at 871, 874 (“The issue is not . . . whether [the 

subsidiary’s] actions in Texas can be imputed to [the foreign parent company]. 

Rather, our concern is with [the parent’s] own conduct directed toward 

marketing its products in Texas.”). 
32 

nationwide effort to cause local dealerships to install the defeat-device 

software in all targeted vehicles after-sale. 

As a necessary corollary to the principle that jurisdiction exists 

only when the defendant’s forum contacts are purposeful, contacts that 

are “random, isolated, or fortuitous” are not sufficient to hale a 

nonresident defendant into the jurisdiction.78 In other words, for Texas 

courts to exercise specific jurisdiction over the German manufacturers, 

their contacts with Texas cannot be accidental, mere happenstance, or 

simply foreseeable. 

Here, there was no happenstance to the contacts with Texas; 

rather, the German manufacturers’ conduct reflects an intent to avail 

themselves of every market Affected Vehicles were in at the time of the 

recall and service campaigns—including Texas. The targets were 

already here, so the German manufacturers had to direct their conduct 

here to accomplish their mission. And because “personal jurisdiction 

requires a forum-by-forum” analysis,79 we look only to the German 

manufacturers’ behavior directed toward Texas, not their behavior 

directed elsewhere.80 The logical consequence is that the lack of 

differentiation in the nature and kind of conduct directed at other 

jurisdictions does not negate the German manufacturers’ purposeful 

availment of this one. 

78 Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 785 

(Tex. 2005) (quoting Keeton v. Hustler Mag., Inc., 465 U.S. 770, 774 (1984)). 

79 J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 884 (2011) 

(plurality opinion). 

80 See Luciano v. SprayFoamPolymers.com, LLC, 625 S.W.3d 1, 10 (Tex. 

2021). 
33 

The defendant need not single Texas out in some unique way to 

satisfy constitutional dictates. To hold that a nonresident who has 

directed activity to every state is not amenable to jurisdiction in any

state would unduly constrain the authority of state courts to hold 

nonresidents accountable for their in-state conduct and would convert 

the specific-personal-jurisdiction analysis into a wholly subjective 

inquiry into the defendants’ state of mind.81 The potential ramifications 

prove the fallacy of the German manufacturers’ “nationwide targeting” 

argument with respect to wrongful conduct that actually occurred in 

Texas. For example, if a malfunction in the defeat-device software 

updates had caused a Texas car owner to suffer personal injuries in 

Texas, the German manufacturers’ jurisdictional theory would leave 

plaintiffs with no avenue of redress in any jurisdiction because none

would have jurisdiction despite—and indeed because of—the 

automakers’ pervasive scheme. The state tort claims also could not be 

brought in any federal court because jurisdiction there depends on 

jurisdiction in the forum state.82 Neither the federal nor the state 

81 See Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 147 (Tex. 

2013) (“[W]hat the parties thought, said, or intended is generally irrelevant to 

their jurisdictional contacts. Regardless of the defendants’ subjective intent, 

their Texas contacts are sufficient to confer specific jurisdiction over the 

defendants.”). 

82 See, e.g., Walk Haydel & Assocs. v. Coastal Power Prod. Co., 517 F.3d 

235, 242 (5th Cir. 2008) (“A federal district court has personal jurisdiction over 

a nonresident defendant to the same extent as a state court in the state in 

which the district court is located.”); Sawtelle v. Farrell, 70 F.3d 1381, 1387 

(1st Cir. 1995) (“It is well established in diversity cases that the district court’s 

personal jurisdiction over a nonresident defendant is governed by the forum’s 

long-arm statute.” (internal quotation marks omitted)); Rambo v. Am. S. Ins. 

Co., 839 F.2d 1415, 1416 (10th Cir. 1988) (observing that, in diversity cases, a 
34 

constitution requires us to adopt a rule insulating nonresident 

defendants from personal jurisdiction arising from or related to their 

Texas-based contacts merely because the defendant has targeted other 

states in a similar manner. Rather, the critical inquiry is whether a 

nonresident defendant has established sufficient contacts with Texas—

not whether those contacts are materially different from its contacts 

with other states. 

 Our recent decision in Luciano bears this out. There, the 

nonresident defendant had a greater number of contacts with 

Connecticut than it had with Texas: it was formed, had its principal 

place of business, “accept[ed] customers’ orders, approve[d] and 

processe[d] orders, employ[ed] personnel, and receive[d] payment” in 

Connecticut, while it merely sent a sales agent to Texas.83 Nonetheless, 

we rejected the defendant’s argument that “its numerous contacts with 

Connecticut ma[d]e specific jurisdiction in Texas improper.”84 “[T]he 

contacts an entity forms with one jurisdiction do not negate its 

purposeful contacts with another.”85 So too here: the fact that the 

German manufacturers have contacts with other states or the United 

States as a whole does not preclude them from having jurisdictionally 

significant contacts with Texas. 

federal court cannot exceed the jurisdictional reach of the courts of the forum 

in which they sit); FED. R. CIV. P. 4(k) (providing the process for acquiring 

personal jurisdiction in diversity cases). 

83 Luciano, 625 S.W.3d at 7, 10 n.2. 

84 Id. at 10. 

85 Id. (citing Keeton v. Hustler Mag., Inc., 465 U.S. 770, 779-80 (1984)). 
35 

 Our conclusion that differentiation among states is not required 

for personal jurisdiction is supported by the United States Supreme 

Court’s hallmark personal-jurisdiction decision in Keeton v. Hustler 

Magazine, Inc.86 and is consistent with our personal-jurisdiction 

precedent. 

In Keeton, the defendant publisher distributed its magazine 

nationwide.87 The Supreme Court nonetheless held that the forum state 

could exercise personal jurisdiction over the defendant, and it did so 

without regard to whether the defendant had availed itself of the forum 

in a way that was distinct from its availment of other jurisdictions.88 

The “circulation of magazines in the forum [s]tate [was] sufficient to 

support an assertion of jurisdiction” without any consideration of 

whether the extent of circulation was materially different from its 

distribution throughout the United States.89

The sole focus in Keeton was on the forum-state contacts, with the 

Supreme Court holding that “some 10 to 15,000 copies” of the magazine 

sold in the forum state each month could not “by any stretch of the 

imagination be characterized as random, isolated, or fortuitous.”90 

Considering only the forum contacts, the Court viewed this as evidence 

that the defendant “chose to enter the [forum state’s] market” and found 

86 465 U.S. 770 (1984). 

87 Id. at 774. 

88 See id. at 775-81. 

89 Id. at 773. 

90 Id. at 772, 774. 
36 

it “sufficient to support an assertion of jurisdiction.”91 In this case, 

Volkswagen and Audi dealerships in Texas—acting as the German 

manufacturers’ cat’s paw92—performed recall or service actions on 

23,316 specifically identified Affected Vehicles. Thousands of contacts 

are certainly not isolated—indeed, a regular flow of activity continued 

throughout the roughly two-year recall-tampering period.93 

Nor were these contacts random or fortuitous. Even if the 

German manufacturers were not subjectively focused on Texas to the 

exclusion of other jurisdictions, their 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. As we have explained, “what the parties 

thought, said, or intended is generally irrelevant to their jurisdictional 

contacts.”94 Rather, “the business contacts needed for specific personal 

jurisdiction over a nonresident defendant ‘are generally a matter of 

physical fact.’”95 Accordingly, we do not concern ourselves with whether, 

91 Id. at 773-74, 779. 

92 Colloquially, a “cat’s paw” is “one used by another as a tool,” “a person 

used by another to do dangerous, distasteful, or unlawful work,” and a “dupe.” 

MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/cat%27s-p

aw (last visited May 3, 2023); COLLINS https://www.collinsdictionary.com/us/ 

dictionary/english/ cats-paw (last visited May 3, 2023). 

93 Although only 487 were Audi models, that remains a significant 

number of purposeful contacts. 

94 Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 147 (Tex. 

2013). 

95 Id. (quoting Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 

777, 791 (Tex. 2005)). 
37 

in directing VW America to carry out the recall and service campaigns, 

the German manufacturers had Texas on their corporate minds. 

 The analysis in the Supreme Court’s plurality opinion in J. 

McIntyre Machinery, Ltd. v. Nicastro96 does not compel a different 

result. Nicastro, which we have cited for general propositions on a 

handful of occasions, is factually and analytically distinguishable. 

Nicastro is a products-liability case in which the United States Supreme 

Court—in plurality and concurring opinions—concluded that a foreign 

manufacturer had not purposefully availed itself of the New Jersey 

market despite its intent, desire, and hope to serve the entire U.S. 

market.97 In concluding that personal jurisdiction over the defendant 

did not lie in New Jersey under a stream-of-commerce analysis,98 a 

majority of the Court rejected the lower court’s ruling that a forum could 

“exercise jurisdiction over a foreign manufacturer of a product so long as 

the manufacturer ‘knows or reasonably 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.’”99 In the 

plurality’s view, the jurisdictional inquiry implicated two principles: 

(1) “personal jurisdiction requires a forum-by-forum, or 

96 564 U.S. 873 (2011) (plurality opinion). 

97 Id. at 886. 

98 Id. at 887. 

99 Id. (quoting Nicastro v. McIntyre Mach. Am., Ltd., 987 A.2d 575, 592 

(N.J. 2010), rev’d, 564 U.S. 873 (2011)); id. at 890-91 (Breyer, J., concurring) 

(quoting the same). 
38 

sovereign-by-sovereign, analysis,”100 and (2) in theory, a defendant “may 

be subject to the jurisdiction of the courts of the United States but not 

of any particular [s]tate” “[b]ecause the United States is a distinct 

sovereign.”101 

The plurality framed the jurisdictional question as “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.”102 And given the necessity of a forum-specific 

analysis, the plurality found it irrelevant that the defendant “directed 

marketing and sales efforts at the United States” because “the question 

concerns the authority of a New Jersey state court to exercise 

jurisdiction, so it is [the manufacturer’s] purposeful contacts with New 

Jersey, not with the United States, that alone are relevant.”103 The 

claim of jurisdiction in Nicastro rested on facts the plurality said “may 

reveal an intent to serve the U.S. market, but they do not show that [the 

manufacturer] purposefully availed itself of the New Jersey market.”104 

The plurality opinion explains: 

Respondent’s claim of jurisdiction centers on three facts: 

[t]he [independent] distributor agreed to sell [the 

100 Id. at 884 (plurality opinion); accord id. at 891 (Breyer, J., 

concurring) (noting that the established jurisdictional inquiry is whether “it is 

fair, in light of the defendant’s contacts with that forum, to subject the 

defendant to suit there”). 

101 Id. at 884. 

102 Id. 

103 Id. at 885-86. 

104 Id. at 886. 
39 

manufacturer’s] machines in the United States; [the 

manufacturer’s] officials attended trade shows in several 

States but not in New Jersey; and up to four machines 

ended up in New Jersey. The British manufacturer had no 

office in New Jersey; it neither paid taxes nor owned 

property there; and it neither advertised in, nor sent any 

employees to the State. Indeed, after discovery the trial 

court found that the “defendant does not have a single 

contact with New Jersey short of the machine in question 

ending up in this state.”105

 The German manufacturers suggest that the Nicastro plurality 

opinion precludes consideration of forum contacts if the nonresident 

defendant has targeted the U.S. market generally. This argument 

misreads Nicastro, which presents the inverse scenario. Properly 

construed, Nicastro reaffirms the forum-by-forum personal-jurisdiction 

analysis.106 The plurality repudiated the lower court’s aggregation of 

nationwide contacts and attribution of those contacts to a particular 

state based on the foreign manufacturer’s desire to penetrate the entire 

U.S. market and the mere foreseeability that its products could end up 

in any of the fifty states.107 The situation there was the opposite of the 

circumstances here, where the German manufacturers essentially seek 

to negate forum contacts based on their similar contacts elsewhere. 

Nicastro is further inapposite because, here, the German 

manufacturers’ conduct rises above mere foreseeability. In both 

Nicastro and the instant cases, legally distinct distributors 

105 Id. 

106 Id. at 884. 

107 See id. at 879, 886. 
40 

independently marketed and sold the foreign defendants’ products 

throughout the United States, and the foreign defendants had never 

established a physical presence in the forum state. But in Nicastro, the 

sale of one to four products through an independent distributor had been 

the extent of the forum activity. Although foreseeability is a factor in a 

stream-of-commerce-plus analysis, mere foreseeability that a product 

sold in the United States might end up in a particular forum state is not 

enough to subject the defendant to that state’s jurisdiction.108 A 

defendant who places a product into the stream of commerce can be 

charged only with foreseeing that the product might end up in the forum 

state, and such foreseeability is not evidence of the purposefulness 

required to “invok[e] the benefits and protections” of a forum’s laws or 

take advantage of its market.109 That is why we and courts around the 

country require “plus” factors in products-liability cases—to delineate 

purposeful action directed at the forum state.110 The Nicastro

manufacturer might have foreseen—and even hoped—that its machines 

would be sold in New Jersey, but the Supreme Court discerned no 

evidence of additional conduct indicating the foreign defendant’s intent 

108 E.g., CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex. 1996) 

(“[F]oreseeability alone will not support personal jurisdiction. The defendant 

must take an action ‘purposefully directed toward the forum state’ to be subject 

to the jurisdiction of its courts.” (emphasis added) (quoting Asahi Metal Indus. 

Co. v. Superior Ct. of Cal., Solano Cnty., 480 U.S. 102, 112 (1987) (plurality 

opinion))). 

109 Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 

(Tex. 2005) (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). 

110 See, e.g., CSR Ltd., 925 S.W.2d at 595. 
41 

to exploit the New Jersey market in connection with the initial sale of 

products through a distributor.111 

In contrast to the circumstances in Nicastro, the after-sale recall 

and service campaigns initiated at the German manufacturers’ direction 

on specifically identified vehicles goes far beyond a mere subjective 

awareness that the campaigns might be conducted in Texas. It 

demonstrates the German manufacturers’ intent to avail themselves of 

the benefits and protections of each and every market in which the recall 

and service campaigns were carried out. They did not simply anticipate 

that those campaigns would have an effect in Texas—they intentionally 

reached into this market with certainty that the fraudulent campaigns 

would be carried out on vehicles that were already here. 

The Nicastro plurality also recognized that, “in some cases, as 

with an intentional tort, the defendant might well fall within the 

[s]tate’s authority by reason of [the defendant’s] attempt to obstruct its 

laws.”112 To the extent Nicastro has any bearing on the jurisdictional 

analysis here, the Texas statutes and regulations the State alleges the 

German manufacturers violated are explicitly applicable to vehicles 

actually in use on Texas roadways.113 Among other things, those 

111 J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 886 (2011) 

(plurality opinion). 

112 Id. at 880. 

113 30 TEX. ADMIN. CODE § 114.20(b), (e); see TEX. HEALTH & SAFETY 

CODE § 382.085(b) (“A person may not cause, suffer, allow, or permit the 

emission of any air contaminant or the performance of any activity in violation 

of this chapter or of any commission rule or order.”); TEX. WATER CODE § 7.101 

(“A person may not cause, suffer, allow, or permit a violation of a statute within 
42 

regulations prohibit any person from “mak[ing] inoperable any system 

or device used to control” motor vehicle emissions or from selling, 

offering for sale, or using “any system or device which circumvents or 

alters any system, device, engine, or any part thereof, installed by a 

vehicle manufacturer to comply with the Federal Motor Vehicle Control 

Program during actual in-use operation of a motor vehicle on Texas 

roadways.”114 

The foreign manufacturers’ conduct here—as described in the 

federal plea agreement and the German manufacturers’ admissions—

was both intentional and obstructive, which at the very least heightens 

the quality of their contacts with this forum. States, of course, have an 

interest in protecting against torts that take place within their 

jurisdiction, and “the Supreme Court has [also] recognized state 

interests in protecting regulatory schemes[.]”115 Accordingly, in addition 

to the “plus-factor” conduct of exerting control over the distribution 

scheme that brought the corrupt software updates to Texas,116 Nicastro

the commission’s jurisdiction or a rule adopted or an order or permit issued 

under such a statute.”). 

114 30 TEX. ADMIN. CODE § 114.20(b), (e) (emphasis added). 

115 Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 152 (Tex. 

2013) (citing Travelers Health Ass’n v. Virginia, 339 U.S. 643, 648 (1950), and 

McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223 (1957)). 

116 Luciano v. SprayFoamPolymers.com, LLC, 625 S.W.3d 1, 10 (Tex. 

2021) (describing “creating, controlling, or employing the distribution system 

that brought the product into the forum state” as a type of “additional conduct” 

evidencing “‘an intent or purpose to serve the market in the forum [s]tate,’ 

whether directly or indirectly” (emphasis added) (quoting Asahi Metal Indus. 

Co. v. Superior Ct. of Cal., Solano Cnty., 480 U.S. 102, 112 (1987) (plurality 

opinion))); accord TV Azteca v. Ruiz, 490 S.W.3d 29, 46 (Tex. 2016) (quoting 

Asahi, 480 U.S. at 112 (plurality opinion)). 
43 

suggests, if anything, that the German manufacturers could also be 

within a Texas court’s authority by virtue of their intentional conduct 

undertaken to obstruct regulations that govern emissions compliance for 

vehicles operating on Texas roads.117 In our view, engaging the forum 

with the specific intent to take actions to thwart the enforcement of an 

applicable regulatory scheme could not be more purposeful.118

The fraudulent nature of the scheme also differentiates this case 

from ordinary software updates that are consummated with consumer 

consent or released for download without regard to where the consumer 

is located or which product the updates target. The after-sale tampering 

software the German manufacturers deployed was targeted to specific 

end-user products, and downloading to the subject vehicles was 

facilitated by misrepresentations and outright lies to dealers and 

consumers about the nature and purpose of the recall and service work. 

The record does not indicate that the owners or operators of Affected 

Vehicles affirmatively consented to the installation of the defeat-device 

117 See J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 880 (2011) 

(plurality opinion); Travelers Health, 339 U.S. at 648 (recognizing the “state’s 

interest in faithful observance” of its regulatory scheme by nonresidents). 

118 In Michiana Easy Livin’ Country, Inc. v. Holten, we held that specific 

jurisdiction would not lie based solely on whether the defendant’s conduct was 

tortious, holding that the jurisdictional analysis must focus on the defendant’s 

contacts with the forum itself. 168 S.W.3d 777, 791-92 (Tex. 2005). That is, 

intent is not a substitute for the defendant’s actual contacts with the forum, 

which, unlike questions about scienter, are generally a matter of physical fact. 

But unlike Michiana, which involved alleged misrepresentations ostensibly 

“directed at” a forum resident but otherwise occurring outside the forum, the 

conduct that allegedly violates state law in this case actually occurred in Texas. 

It is not a question of whether the State will succeed on the merits of its claims, 

but whether the defendants made purposeful contacts with Texas as a matter 

of physical fact. 
44 

software on their cars during recall or service work, but even if they did, 

any such consent was fraudulently procured by the unilateral actions of 

the defendants. 

 For these reasons, we cannot agree that the German 

manufacturers’ contacts elsewhere nullify their contacts with Texas119

or that those Texas contacts are attributable to mere fortuity or the 

unilateral acts of third parties. 

3. Forum Benefit, Advantage, or Profit

 Even so, nonresident defendants purposefully avail themselves of 

a forum state’s jurisdiction only when they “seek some benefit, 

advantage[,] or profit” from their contacts with the jurisdiction.120 

“Jurisdiction is premised on notions of implied consent—that by 

invoking the benefits and protections of a forum’s laws, a nonresident 

consents to suit there. By contrast, a nonresident may purposefully 

avoid a particular jurisdiction by structuring its transactions so as 

neither to profit from the forum’s laws nor be subject to its 

jurisdiction.”121

Both German manufacturers sought a benefit by availing 

themselves of Texas’s jurisdiction—VW Germany perhaps more 

obviously because it had a more direct financial incentive. By the terms 

of its Importer Agreement, VW Germany bore the ultimate burden to 

119 See Keeton v. Hustler Mag., Inc., 465 U.S. 770, 774 (1984); Michiana, 

168 S.W.3d at 785. 

120 See Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 151 

(Tex. 2013). 

121 Michiana, 168 S.W.3d at 785. 
45 

pay for all repairs covered by warranty and recall work for affected 

Volkswagen vehicles. VW Germany reimbursed VW America for all 

warrantied and recall work that local dealers undertook on Volkswagen 

cars, including for the recall and service actions at issue in the 

underlying litigation. In the same way, Audi was contractually 

responsible for financing warranty and recall work and reimbursed 

VW America for the recall and service actions the dealers performed on 

Audi cars, but for some—or all—of the work at issue here, VW Germany 

may have subsequently reimbursed Audi. 

 The after-sale tampering came about after diesel particulate 

filters in Affected Vehicles with 2.0-liter engines began to crack due to a 

malfunction in the defeat-device technology that had been installed in 

the vehicles before their importation and sale by VW America. These 

filters were covered by warranty, so VW Germany bore the ultimate 

responsibility for covering the cost of replacing them, including those in 

some affected Audi models. The German manufacturers initiated the 

recall and service campaigns to prevent this damage to the filters and to 

defray high costs associated with the repairs. According to the record, 

the cost of replacing a single filter was over $1,000, and nationally, 

VW Germany saved up to $525,000 per month in reduced warranty costs 

as a result of the “fixes” effectuated by the software downloaded in the 

after-sale tampering campaigns. VW Germany did not break down 

those payments by state, so the record contains no evidence of what it 

paid to reimburse warranty claims originating in Texas. Nonetheless, 

after-sale tampering allowed VW Germany to save money by preventing 

damage that would later require warranty repair; VW Germany sought 

this benefit by initiating the recall and service campaigns for vehicles in 
46 

Texas—the second-largest market for sales of Affected Vehicles; and 

reimbursable service work was performed on 23,316 cars at Texas 

dealerships. 

 Audi may or may not have borne ultimate financial responsibility 

for warranty claims of the specific part at issue here—it says it did not, 

and the special-appearance record does not contradict that assertion—

so it did not benefit from the after-sale tampering in all the same 

respects as VW Germany. But the record bears some evidence that Audi 

nonetheless benefitted in several significant ways. The most obvious is 

that Audi, like VW Germany, sought to prevent regulatory authorities 

from discovering that some of its cars—including cars owned and 

operated in Texas—did not comply with federal emissions standards so 

it would not have to recall, replace, or otherwise be held accountable for 

exporting illegal vehicles. Additionally, Audi, like VW Germany, would 

have obtained nonmonetary benefits in Texas in the form of enhanced 

relationships with consumers and the avoidance of adverse publicity. By 

initiating campaigns to further conceal the defeat devices installed in 

Affected Vehicles owned, operated, and serviced in Texas, VW Germany 

and Audi availed themselves of the benefits and privileges of conducting 

business activities in Texas. These contacts with Texas were not 

accidental and, instead, allowed the German manufacturers to exploit 

the Texas market to their benefit and advantage until the artifice was 

uncovered.122 All three factors of the purposeful-availment analysis are 

therefore satisfied. 

122 See Hanson v. Denckla, 357 U.S. 235, 253 (1958); Retamco Operating, 

Inc. v. Republic Drilling Co., 278 S.W.3d 333, 338 (Tex. 2007). 
47 

4. Response to the Dissent 

The dissent’s analysis misses the mark in several important 

respects. First, the opinion focuses on initial vehicle sales and related 

provisions of the Importer Agreements while neglecting the after-sale 

recall and service campaigns and the contract provisions governing 

them. This misstep leads the dissent’s analysis astray. The proper focus 

is on the German manufacturers’ purposeful use of existing distribution 

channels and an established control structure to bring a tainted 

product—the defeat-device software updates—to specifically targeted 

vehicles that were being serviced in Texas and operated on Texas 

roadways.123 While the German manufacturers engaged in conduct 

outside of Texas with regard to the after-sale tampering, as the dissent 

says, there was nonetheless a direct line from the German 

manufacturers to Texas through their chosen business structure. The 

dissent’s assertion that “[u]nder today’s holding, any foreign 

manufacturer directing its U.S. distributor to conduct a nationwide 

recall will be subject to personal jurisdiction in Texas courts, regardless 

of whether it targeted Texas,”124 is an obvious oversimplification that 

ignores (1) the level and nature of control the German manufacturers 

retained and exercised over both the recall campaigns and the service 

campaigns and (2) the requirement of a causal nexus between the forum 

123 The dissent’s rationale for absolving the German manufacturers of 

their purposeful contacts with Texas is that they only conducted recall and 

service campaigns on vehicles in Texas because of VW America’s “own decision 

to target the Texas market for car sales in the first instance.” Post at 16 n.9, 

18. VW America’s decisions about initial vehicle sales may have put the target 

here, but the German manufacturers knowingly and purposefully shot at it. 

124 Id. at 4. 
48 

contacts and the operative facts of the litigation, which narrows the class 

of claims that could give rise to specific personal jurisdiction. 

Second, the dissent is dead wrong in saying that (1) the record 

bears no evidence that the German manufacturers controlled the means, 

details, and manner of the wrongful conduct that was perpetrated in 

Texas and (2) the Importer Agreements preclude the distributor and 

dealers from acting as the manufacturers’ agents for purposes of the 

recall and service campaigns. Because no findings of fact were issued, 

we are obligated to view the record favorably to the trial court’s 

jurisdictional rulings,125 and as we have described in some detail, the 

record bears substantial evidence that the German manufacturers 

controlled the means, details, and manner in which VW America and its 

dealership network executed the recall and service campaigns.126 The 

125 See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 

2002). 

126 Despite ample evidence to support an implied finding of the 

manufacturers’ control over the distribution system, the distributors, and the 

dealerships with regard to installation of the post-sale modifications to 

Affected Vehicles in Texas, the dissent intimates that “the State’s own 

admissions” prevent us from considering that evidence. See post at 20. The 

dissent points to the State’s recently filed summary-judgment motion as 

precluding the conclusion that the German manufacturers controlled the 

means and details of the recall and service campaigns by arguing that 

VW America “not only ‘arranged, managed, promoted, [and] advertised’ but 

also ‘directed’ the recalls at Texas dealerships.” Id. But such arguments are 

not inconsistent with the State’s position—and the manufacturers’ 

admissions—that the distributor was contractually obligated to undertake 

such actions, and did do so, at the manufacturers’ direction. As VW Germany’s 

corporate representative testified, when the manufacturer initiates a recall, 

“everybody has to follow.” Rather than adhering to the applicable standard of 

review, the dissent’s analysis views the record contrary to the trial court’s 

ruling. 
49 

German manufacturers determined which vehicles would be tampered 

with, how the tampering would occur, and what the dealers and 

consumers would be told about the purpose of the recall and service 

campaigns. Just as importantly, the German manufacturers provided 

the means of implementation—not only the software updates 

themselves but also the proprietary diagnostic system the dealers used 

to identify the targeted vehicles and download the updates to those 

vehicles when presented for recall or service work. The German 

manufacturers uploaded the software onto their server, which was 

“synchronized” with the distributor’s server, and then the software was 

available by “automated download” for installation into specific vehicles 

via the manufacturers’ proprietary diagnostic system. The record does 

not show that VW America or the dealers had any control over whether 

these automated actions occurred.127 

This conclusion is further bolstered by the Importer Agreements, 

which give the German manufacturers control over the execution of 

But the dissent’s reliance on this filing is also troubling for other 

reasons: (1) the motion is outside the special-appearance record; and 

(2) litigants are not prohibited from taking contrary positions in the same 

proceeding. And most importantly, VW America’s participation in and 

knowledge of the scheme, if any, does not negate the substantial evidence that 

the German manufacturers controlled the distribution system in the relevant 

way. The outcome of the State’s motion for partial summary judgment on its 

claims against VW America remains to be seen, but we fail to see how the 

allegations recounted by the dissent have any bearing on Texas courts’ specific 

jurisdiction over the German manufacturers. 

127 See TV Azteca v. Ruiz, 490 S.W.3d 29, 36 n.4 (Tex. 2016) (explaining 

that once sufficient jurisdictional facts have been pleaded, the burden shifts to 

the defendant to negate all pleaded bases for jurisdiction and observing that 

any conflicts in the evidence must be resolved in favor of the trial court’s 

special-appearance ruling). 
50 

recall and service campaigns, including by requiring VW America and 

its dealerships to perform all “warranty repairs and/or services and 

repair[s]” and “all maintenance work and/or repairs” “in accordance with 

[the German manufacturers’] instructions, guidelines[,] and/or 

procedures.” Not only is there evidence that VW America and the 

dealers were not looped in to the manufacturers’ scheme, but the 

Importer Agreements’ express terms left them no choice about whether 

and how to perform the post-sale tampering campaigns.128 The dissent’s 

contention otherwise misstates the record. 

General language in the Importer Agreements purporting to 

disclaim an agency relationship between the German manufacturers 

and VW America does not overcome the Agreements’ specific language 

requiring all the downstream entities to do the German manufacturers’ 

bidding with respect to recall and service work. An agent may act on 

128 With a mere perfunctory citation to the Texas Occupations Code, the 

dissent implies that the German manufacturers could not lawfully contract to 

retain control over recall and service campaigns for branded vehicles because, 

under the Code, (1) “a manufacturer or distributor may not directly or 

indirectly: . . . operate or control: . . . a franchised dealer or dealership” and 

(2) any franchise term or condition that is “inconsistent with [Chapter 2301] is 

unenforceable.” Post at 15 n.7; TEX. OCC. CODE §§ 2301.003(b), .476(c)(2). 

Although the German manufacturers have never cited either provision, we will 

assume the dissent’s inferred construction of the statute is proper. Even so, 

the pertinent inquiry is not whether the German manufacturers lawfully

retained and exercised control over the recall and service campaigns at issue 

here but whether they actually retained and exercised control. As we have 

explored in some depth, evidence of the latter is more than ample to support 

the trial court’s special-appearance ruling. 
51 

the principal’s behalf for a specific purpose; it need not serve as the 

agent for all purposes.129 

Finally, the dissent errs in presenting Spir Star and Luciano as 

establishing circumstances necessary, as opposed to sufficient, to assert 

jurisdiction over a nonresident entity. While the foreign defendants’ 

forum contacts in those cases differ from the German manufacturers’ 

contacts in this case, the dissent cannot point to any authority finding 

personal jurisdiction lacking when a foreign manufacturer retained 

control over a distribution method it subsequently employed to bring a 

product to the forum state as part of a plot to deceive consumers and 

government regulators. To the contrary, the dissent acknowledges, as 

it must, that the stream-of-commerce “‘plus factor’ requirement may be 

satisfied by a foreign defendant’s . . . exercise of control over . . . the 

distribution system that brought goods into Texas.”130 That is exactly 

what happened here.131 

129 Cf. Jenkins v. Alexander, No. 03-95-00377-CV, 1997 WL 217176, at 

*2 (Tex. App.—Austin May 1, 1997, pet. denied) (not designated for 

publication) (describing a “special agent” who is “empowered to perform only a 

particular task or a particular class of work,” as opposed to a “general agent,” 

who is “empowered to transact all the business of his principal of a particular 

kind or in a particular place” (quoting First Nat’l Bank v. Kinabrew, 589 

S.W.2d 137, 145 (Tex. App.—Tyler 1979, writ ref’d n.r.e.))). 

130 Post at 2. 

131 The dissent also references two federal district court cases involving 

claims against foreign automobile manufacturers—one in which the district 

court found the manufacturers amenable to the forum’s jurisdiction and one in 

which the court found to the contrary. See id. at 26-27 & 29-30 (citing In re 

Volkswagen “Clean Diesel” Litigation, No. CL-2016-9917, 2018 WL 4850155, 

at *3, *6 (Va. Cir. Ct. Oct. 4, 2018), and discussing Thornton v. Bayerische 

Motoren Werke AG, 439 F. Supp. 3d 1303 (N.D. Ala. 2020)). But the dissent’s 
52 

suggestion that these cases required physical presence in the forum or some 

degree of overlapping governance among the manufacturer and distributor is 

inaccurate. 

The district court in In re Volkswagen noted that language in the 

importer agreements “insinuates that [VW America] had no control over the 

marketing and advertising materials for the fraudulent vehicles at the heart 

of Plaintiffs’ claims,” but the court had no occasion to “rule on the agency 

argument alleged by Plaintiffs” in light of the court’s finding “that the German 

Defendants already established enough contacts with Virginia alone” through 

participation in in-state activities to produce the fraudulent marketing 

materials. 2018 WL 4850155, at *3, *6. 

Thornton involved complaints about an allegedly defective safety 

component that was installed in the manufacturer’s vehicles prior to their 

initial sale in the United States; that case did not involve post-sale alteration 

of the component or any recall or servicing of the component. 439 F. Supp. 3d 

at 1306-08. The district court summarily rejected various bases for personal 

jurisdiction, including that the manufacturer had targeted the forum state 

(1) based on its targeting of the United States for initial vehicle sales and 

(2) based on its “established relationship” with a handful of local dealerships. 

Id. at 1311. The court rejected the first argument with a mere citation to the 

plurality opinion in Nicastro and the second because the plaintiff failed to 

“cite[] any evidence to support it or provide[] any specific facts about the nature 

and extent of the alleged relationship.” Id. We need not opine on the 

persuasiveness of the court’s analysis, but we note that (1) the instant case 

concerns contacts related to post-sale recall and service tampering, not initial 

sales of the Affected Vehicles, and (2) here, the State has produced evidence of 

the German manufacturers’ control over the distributor and local dealerships 

with respect to the specific actions giving rise to the underlying lawsuit. 

The dissent also parenthetically cites Rickman v. BMW of North 

America LLC for the proposition that “[the district] court could not assert 

personal jurisdiction over [a] company that [had] developed deceptive recall 

software in Germany where it had only exhibited ‘general efforts to target [the] 

U.S. market,’” post at 27, but the dissent’s citation to this holding is misplaced 

because, there, the claims against the defeat-device maker did not involve a 

recall, post-sale tampering claims, or any allegation that the foreign defendant 

controlled the distribution channel, 538 F. Supp. 3d 429, 434, 439 (D.N.J. 

2021). More importantly, unlike this case, the claims in Rickman that the 

dissent references were against a foreign component supplier and were based 

on the initial sale of vehicles in the U.S., which occurred after the defeat-device 
53 

Accordingly, we turn now to the second prong of the 

specific-jurisdiction inquiry: whether the State’s claims are sufficiently 

related to those contacts.132 Because this additional constraint on 

specific personal jurisdiction is not genuinely contested here, the dissent 

fails to consider it.133 But skipping over this essential component of the 

jurisdictional inquiry causes the dissent to gravely overstate the scope 

of our holding.134

C. Connection to the State’s Claims

 Whether the defendant has contacts with the forum state is the 

beginning but not the end of our inquiry because “[s]pecific jurisdiction 

exists only if the alleged liability arises out of or is related to the 

defendant’s activity within the forum.”135 An “affiliation” must exist 

component had been supplied to the foreign manufacturer for installation in 

its vehicles. Id. at 431, 434, 439. In concluding that the plaintiffs’ allegations 

were inadequate to plead personal jurisdiction against the component supplier, 

the court’s analysis demonstrates that the circumstances there are materially 

distinguishable from those in this case: “There is nothing in the Amended 

Complaint to plausibly allege that [the foreign component developer] worked 

directly with [the U.S. distributor, whose principal place of business was in the 

forum]. Rather, the Amended Complaint paints a picture of [the component 

developer] and [the foreign manufacturer] working to implement the defeat 

devices, inferably in Germany.” Id. at 439. 

132 E.g., Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 

1025 (2021). 

133 See post at 6 (“The German manufacturers concede that the 

relatedness prong is not in dispute here, leaving only a question of purposeful 

availment[.]”). 

134 Id. at 4 (proclaiming that today’s holding subjects any foreign 

manufacturer directing a nationwide recall to personal jurisdiction in Texas). 

135 Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 156 (Tex. 

2013); see Ford Motor Co., 141 S. Ct. at 1025-26. 
54 

“between the forum and the underlying controversy, principally, [an] 

activity or an occurrence that takes place in the forum [s]tate and is 

therefore subject to the [s]tate’s regulation.’”136 But specific jurisdiction 

does not necessarily require proof of causation—“i.e., proof that the 

plaintiff’s claim came about because of the defendant’s in-state 

conduct.”137 Relationships may “support jurisdiction without a causal 

showing” even when the litigation merely relates to the defendant’s 

forum contacts.138 In this case, the State’s civil-enforcement claims 

ineluctably arise out of or relate to the German manufacturers’ 

after-sale tampering conduct.139 The conduct at issue took place in 

136 Bristol-Myers Squibb Co. v. Superior Ct. of Cal., S.F. Cnty., 137 S. 

Ct. 1773, 1780 (2017) (quoting Goodyear Dunlop Tires Ops., S.A. v. Brown, 564 

U.S. 915, 919 (2011)). 

137 Ford Motor Co., 141 S. Ct. at 1026 (emphasis added). 

138 Id. 

139 In Ford Motor Co., the Supreme Court noted that the “first half” of 

the “arises out of or relates to” standard—that is, the “arises out of” half—“asks 

about causation,” while “the back half, after the ‘or,’ contemplates that some 

relationships will support jurisdiction without a causal showing.” Id. Because 

the State’s after-sale tampering claims clearly arise out of the recall and 

service tampering itself—a direct causal relationship connects the litigation to 

the contacts—we “need not determine whether [the] ‘substantial connection’ 

standard” articulated in our precedent “exceeds the bounds of due process.” 

See Luciano v. SprayFoamPolymers.com, LLC, 625 S.W.3d 1, 16 n.5 (Tex. 

2021). 
55 

Texas, is subject to Texas’s regulation under Texas law,140 and will form 

the “focus of the trial.”141

The requisite relatedness is illustrated by contrasting the facts 

alleged in this case with Moncrief Oil International Inc. v. OAO 

Gazprom.142 There, a Texas resident argued that Texas courts could 

permissibly exercise jurisdiction over a Russian defendant that 

tortiously interfered with the resident’s business relationships.143 But 

we held that even though the defendant was amenable to specific 

jurisdiction on a different claim, Texas courts could not exercise 

personal jurisdiction with respect to the tortious-interference claim 

because the alleged interference arose out of a meeting that took place 

140 See TEX. HEALTH & SAFETY CODE § 382.085(b); TEX. WATER CODE

§§ 7.101–.102; 30 TEX. ADMIN. CODE § 114.20(b), (e); see Bristol-Myers Squibb, 

137 S. Ct. at 1780 (“In other words, there must be . . . an activity or an 

occurrence that takes place in the forum State and is therefore subject to the 

State’s regulation.” (internal quotation marks and alteration omitted)). 

141 See Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 585 (Tex. 

2007) (explaining that the defendant’s Texas contacts and the litigation’s 

operative facts were not sufficiently related when the “focus of the trial” would 

be on events that took place outside of Texas, which would “consume most if 

not all of the litigation’s attention” and toward which “the overwhelming 

majority of the evidence [would] be directed”); see also Moncrief Oil Int’l Inc. v. 

OAO Gazprom, 414 S.W.3d 142, 156-57 (Tex. 2013) (looking to the events 

principally involved in the merits claims to determine whether the defendant’s 

Texas contacts and the operative facts of the litigation were sufficiently related 

to support specific jurisdiction). 

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

143 Id. at 156. 
56 

exclusively in California.144 We explained that “a nonresident directing 

a tort at Texas from afar is insufficient to confer specific jurisdiction.”145 

This case presents the opposite scenario and, predictably, 

produces the opposite result. Unlike Moncrief, which involved an 

alleged tort committed elsewhere that merely produced effects in 

Texas,146 the after-sale tampering took place in Texas; the State’s claims 

arise directly out of that conduct; and the substantiality of the 

connection is “enhanced” by Texas’s strong interest in protecting its 

regulatory scheme,147 which includes ensuring faithful observance by 

nonresidents and vindicating violations of its own laws in its own courts. 

Because the State’s after-sale tampering claims clearly arise out 

of or relate to the German manufacturers’ contacts with Texas, the 

German manufacturers have established contacts that are sufficiently 

connected to Texas to satisfy due-process guarantees.148 

144 Id. at 157. The plaintiff also alleged that the nonresident defendant’s 

establishment of a Texas subsidiary to compete with the plaintiff subjected the 

defendant to Texas’s jurisdiction. Id. We disagreed because the parent did not 

sufficiently control the subsidiary such that the subsidiary’s Texas contacts 

could be imputed to the nonresident parent. Id. As explained above, there is 

no need to impute VW America’s contacts to the German manufacturers given 

their control over the software-update distribution stream. 

145 Id. (citing Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 

777, 790-92 (Tex. 2005)). 

146 See id.; see also, e.g., Walden v. Fiore, 571 U.S. 277, 290 (2014) (“The 

proper question is not where the plaintiff experienced a meaningful injury or 

effect but whether the defendant’s conduct connects him to the forum in a 

meaningful way.”). 

147 See Moncrief Oil, 414 S.W.3d at 152. 

148 See, e.g., Walden, 571 U.S. at 283. 
57 

D. Fair Play and Substantial Justice 

“Once minimum contacts have been established, we must still 

consider whether, for other reasons, exercising jurisdiction over the 

nonresident defendant would nevertheless run afoul of ‘traditional 

notions of fair play and substantial justice.’”149 While this catchphrase 

is “well known to appellate courts,” it is nonetheless “imprecise.”150 

When a nonresident defendant has minimum contacts with the forum, 

“rarely will the exercise of jurisdiction over the nonresident not comport 

with traditional notions of fair play and substantial justice.”151 To avoid 

jurisdiction, the defendant would have to present “a compelling case that 

the presence of some consideration would render jurisdiction 

unreasonable.”152 

At oral argument, the German manufacturers forthrightly 

conceded that if the standard for specific jurisdiction were satisfied, 

traditional notions of fair play and substantial justice would not 

preclude Texas courts from exercising personal jurisdiction, and we 

agree. Accordingly, the trial court did not err in exercising specific 

personal jurisdiction over the German manufacturers. 

149 Luciano v. SprayFoamPolymers.com, LLC, 625 S.W.3d 1, 18 (Tex. 

2021) (quoting Int’l Shoe Co. v. State of Wash., Off. of Unemployment Comp. & 

Placement, 326 U.S. 310, 316 (1945)). 

150 Spir Star AG v. Kimich, 310 S.W.3d 868, 872 (Tex. 2010). 

151 Moncrief Oil, 414 S.W.3d at 154-55. 

152 Guardian Royal Exch. Assurance, Ltd. v. Eng. China Clays, P.L.C., 

815 S.W.2d 223, 231 (Tex. 1991) (quoting Burger King Corp. v. Rudzewicz, 471 

U.S. 462, 477 (1985)). 
58 

III. Conclusion 

 Unlike many personal-jurisdiction disputes in which a 

nonresident manufacturer has merely placed a product in a stream of 

commerce that fortuitously carried the product to the forum state, the 

German manufacturers effectively—and knowingly—dropped the 

tampering software down a chute that guaranteed it would land in 

Texas. The manufacturers developed the product, controlled the 

distribution stream that brought the product to Texas, and called all the 

shots. Because the trial court properly denied the special appearances, 

we reverse the court of appeals’ judgment and remand to the trial court. 

 

 John P. Devine 

 Justice 

OPINION DELIVERED: May 5, 2023