JUSTICE BOYD delivered the opinion of the Court.
This is an interlocutory appeal from the denial of Petitioners' special appearances. Petitioners are Mexican citizens who broadcast television programs on over-the-air signals that originate in Mexico but travel into parts of Texas. Respondents are Texas residents who allege Petitioners defamed them in some of those programs. We hold that the allegations and evidence that Petitioners harmed Texas residents in Texas, Petitioners' broadcasts were viewable in Texas, and Petitioners knew Texans could watch the programs in Texas are insufficient to establish that Petitioners purposefully availed themselves of the benefits of conducting activities in Texas. However, that evidence, taken together with evidence that Petitioners exploited the Texas market to capitalize on the broadcasts that traveled into Texas, does
Mexican recording artist Gloria de Los Angeles Trevino Ruiz, popularly known as Gloria Trevi (and sometimes referred to as "Mexico's Madonna"), now lives in Texas. Near the height of Trevino's fame in the late 1990s, she was accused of luring underage girls into sexual relationships with her manager. Authorities arrested Trevino and her manager in Brazil on charges of sexual assault and kidnapping. Trevino spent nearly five years in prisons in Brazil and Mexico, but a Mexican judge ultimately found her not guilty and dismissed all charges in 2004.
After her acquittal, Trevino moved to McAllen, Texas, and later married Armando Gomez, a Mexican attorney who had defended her in the criminal proceedings. In the late 2000s, as the ten-year anniversary of the scandal approached, various Mexican media outlets ran stories discussing the events and Trevino's activities following her acquittal. In 2009, Trevino, acting individually and on behalf of her minor son, and Gomez (collectively, Trevino)
The relevant defendants are two Mexican television broadcasting companies, TV Azteca, S.A.B. de C.V., and Publimax, S.A.B. de C.V., and a Mexican citizen, Patricia Chapoy, a news anchor and producer for TV Azteca. Trevino alleges that TV Azteca, Publimax, and Chapoy (collectively, Petitioners) defamed her on several occasions, primarily in stories on a television program called Ventaneando, a Spanish-language entertainment news program that TV Azteca produced, Chapoy hosted, and Publimax aired on television stations affiliated with TV Azteca. Petitioners filed special appearances challenging the trial court's jurisdiction over them. The trial court denied the special appearances, and this interlocutory appeal followed.
We begin by summarizing the well-established limits on a trial court's jurisdiction. A court has power to decide a case only if it has "both subject matter jurisdiction over the controversy and personal jurisdiction over the parties." Spir Star AG v. Kimich, 310 S.W.3d 868, 871 (Tex.2010). Subject matter jurisdiction involves a court's "power to hear a particular type of suit," while personal jurisdiction "concerns the court's power to bind a particular person or party." CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex.1996). Petitioners argue that Texas courts lack personal jurisdiction over them.
Courts have personal jurisdiction over a nonresident defendant when the state's long-arm statute permits such jurisdiction and the exercise of jurisdiction is consistent with federal and state due-process guarantees. Moncrief Oil Int'l Inc. v. OAO Gazprom, 414 S.W.3d 142, 149 (Tex. 2013). The Texas long-arm statute broadly allows courts to exercise personal jurisdiction over a nonresident who "commits a tort in whole or in part in this state." TEX. CIV. PRAC. & REM. CODE § 17.042(2). Because this statute reaches "as far as the federal constitutional requirements for due process will allow," Texas courts may exercise jurisdiction over a nonresident so long as doing so "comports with federal due process limitations." Spir Star, 310 S.W.3d at 872 (quoting Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex.2002)).
Consistent with federal due process protections, a state court can exercise jurisdiction over a nonresident defendant only if (1) the defendant has established "minimum contacts" with the state and (2) the exercise of jurisdiction comports with "traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945); see Moncrief Oil, 414 S.W.3d at 150. We will address both requirements in turn, in light of the allegations and evidence in this case.
The minimum-contacts requirement protects due-process rights by permitting a state to exercise jurisdiction over a nonresident defendant only when the defendant "could reasonably anticipate being haled into court there." Moncrief Oil, 414 S.W.3d at 152. Minimum contacts may create either general or specific personal jurisdiction. Id. at 150. A court has general jurisdiction over a nonresident defendant whose "affiliations with the State are so `continuous and systematic' as to render [it] essentially at home in the forum State." Daimler v. Bauman, ___ U.S. ___, 134 S.Ct. 746, 754, 187 L.Ed.2d 624 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011)). This test requires "substantial activities within the forum" and presents "a more demanding minimum contacts analysis than for specific jurisdiction." BMC Software, 83 S.W.3d at 797. When a court has general jurisdiction over a nonresident, it may exercise jurisdiction "even if the cause of action did not arise from activities performed in the forum state." Spir Star, 310 S.W.3d at 872.
By contrast, courts may exercise specific jurisdiction when the defendant's forum contacts are "isolated or sporadic," as opposed to "continuous and systematic," but only if the plaintiff's cause of action arises from or relates to those contacts. Id. at 872-73 (quoting 4 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1067.5 (3d ed.2002)); see also Moncrief Oil, 414 S.W.3d at 150 ("[S]pecific jurisdiction exists when the cause of action arises from or is related to purposeful activities in the state."). For specific jurisdiction, we must analyze the defendant's contacts "on a claim-by-claim basis" to determine whether each claim arises out of or is related to the defendant's minimum contacts. Moncrief Oil, 414 S.W.3d at 150.
Trevino alleged that the trial court has both general and specific personal jurisdiction over Petitioners. The trial court denied Petitioners' special appearances without specifying which type of jurisdiction it found. Affirming the trial court's decision, the court of appeals found that the trial court has specific jurisdiction, and it did not reach the general-jurisdiction issue. ___ S.W.3d at ___, 2014 WL 346031, at *26. We therefore also address specific jurisdiction. Because we conclude the evidence establishes that Petitioners purposefully availed themselves of the benefits of conducting activities in Texas and that Trevino's claims arise from or relate to those purposeful contacts, we do not reach the general-jurisdiction issue.
To establish minimum contacts for both general and specific jurisdiction, the defendant must have "purposefully avail[ed] itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.'" Moncrief Oil, 414 S.W.3d at 150 (quoting Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 338 (Tex.2009)). Due process requires purposeful availment because personal 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." Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex.2005). Three principles guide our analysis of whether a nonresident
Moncrief Oil, 414 S.W.3d at 151 (quoting Retamco, 278 S.W.3d at 338-39).
To constitute purposeful availment, the defendant's contacts must be "purposefully directed" to the state, Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 228 (Tex.1991), and must result from the defendant's own "efforts to avail itself of the forum." Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 576 (Tex. 2007). "[A] defendant will not be haled into a jurisdiction solely based on contacts that are `random, isolated, or fortuitous,'" Michiana, 168 S.W.3d at 785 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984)), or on the "unilateral activity of another party or a third person." Guardian Royal, 815 S.W.2d at 226 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Through its purposeful forum contacts, the defendant must have sought "some benefit, advantage, or profit by `availing' itself of the jurisdiction." Michiana, 168 S.W.3d at 785. In conducting this analysis, we assess "the quality and nature of the contacts, not the quantity." Moncrief Oil, 414 S.W.3d at 151.
TV Azteca is a Mexican national broadcasting company that provides programs to affiliated network-television stations. Publimax operates two such stations in Monterrey, Mexico, which are licensed by the Mexican government. Publimax pays TV Azteca for the exclusive right to broadcast TV Azteca programs in northeastern Mexico. Chapoy produces and hosts one of those programs, Ventaneando. Both TV Azteca and Publimax are Mexican corporations, are not registered in Texas or any of the United States, and do not have any offices, employees, agents, or representatives in Texas. Chapoy is a Mexican citizen and resident, has never been a Texas citizen or resident, does not have an office or agent for service of process in Texas, and has never been a party to a lawsuit in Texas other than this suit. Nevertheless, Trevino contends that Texas courts have specific personal jurisdiction over all three Petitioners because they purposefully availed themselves of the benefits of conducting activities in Texas when they defamed her in broadcasts that aired in Texas. As this is our first opportunity to address specific jurisdiction in the context of defamation claims arising from media broadcasts, we begin by reviewing four key precedents that are crucial to our analysis. We then apply those precedents to the allegations and evidence to determine whether Petitioners purposefully availed themselves of the benefits of doing business in Texas.
Numerous other courts, including the United States Supreme Court, have addressed specific personal jurisdiction in cases involving claims based on alleged defamatory or false statements
In Keeton, a New York resident filed a defamation suit in New Hampshire against the publisher of Hustler magazine, an Ohio corporation with headquarters in California. 465 U.S. at 772, 104 S.Ct. 1473. The plaintiff apparently filed in New Hampshire because it was the only state where limitations had not run. Id. at 773, 104 S.Ct. 1473. Although the defendant's only contacts with New Hampshire consisted of monthly magazine sales there, the Court concluded that the distribution of "some 10,000 to 15,000 copies of Hustler magazine in that State each month" could not "by any stretch of the imagination be characterized as random, isolated, or fortuitous." Id. at 772, 774, 104 S.Ct. 1473.
Although the plaintiff in Keeton had almost no connection with New Hampshire, the Court noted that "the jurisdictional inquiry ... focuses on the relations among the defendant, the forum, and the litigation." Id. at 780, 104 S.Ct. 1473 (emphasis added). Referencing its decision in Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), which the Court released on the same day as Keeton, the Court explained that the plaintiff's residence "is not ... completely irrelevant" because the "plaintiff's residence in the forum may, because of defendant's relationship with the plaintiff, enhance defendant's contacts with the forum." Id. (citing Calder, 465 U.S. at 788-89, 104 S.Ct. 1482). "Plaintiff's residence," in other words, "may be the focus of the activities of the defendant out of which the suit arises." Id. "But plaintiff's residence in the forum State is not a separate requirement, and lack of residence will not defeat jurisdiction established on the basis of defendant's contacts." Id. Noting that "New Hampshire has a significant interest in redressing injuries that actually occur within the State" and that "[t]he tort' of libel is generally held to occur wherever the offending material is circulated," id. at 776-77, 104 S.Ct. 1473, the Court concluded that, because the defendant had "continuously and deliberately exploited the New Hampshire market, it must reasonably anticipate being haled into court there in a libel action based on the contents of its magazine." Id. at 781, 104 S.Ct. 1473.
In Calder, Hollywood actress Shirley Jones filed suit in California asserting defamation claims based on statements in a National Enquirer article. 465 U.S. at 785, 104 S.Ct. 1482. Jones sued the Enquirer's owner, its local distributing company, the reporter who wrote the article, and the editor who revised and approved the final draft. Id. at 785-86, 104 S.Ct. 1482. The reporter and editor, who resided in Florida and prepared the article there, challenged the California court's personal jurisdiction over them. Although the Court acknowledged that the reporter and editor did not create the article in California or personally direct or control its circulation to the state, it found that several facts established that California was "the focal point both of the story and of the harm suffered." Id. at 789, 104 S.Ct. 1482. Specifically, the Court noted that the article (1) targeted California because it "concerned the California activities of a California resident" and "was drawn from California sources," and (2) caused Jones to suffer "the brunt of the harm" in California. Id. at 788-89, 104 S.Ct. 1482. Because the Enquirer sold nearly twice as many copies in California than in any other state, the reporter and editor "knew that the brunt of that injury would be felt by [Jones] in the State in which she lives and works and in which the National Enquirer has its largest circulation." Id. at 789-90, 104 S.Ct. 1482. Considering "the `effects' of their Florida conduct in California" and the evidence that "their intentional, and allegedly tortious, actions were expressly aimed at California," the Court concluded that the reporter and editor "must `reasonably anticipate being haled into court there' to answer for the truth of the statements made in their article." Id. (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). The Court referred to this analytical approach
Although the facts that Jones was a California resident and suffered "the brunt of the harm" there were critical to the Court's decision, the Court acknowledged, as it did in Keeton, "In judging minimum contacts, a court properly focuses on the relationship among the defendant, the forum, and the litigation.'" Id. at 788, 104 S.Ct. 1482 (emphasis added) (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977)). Cross-referencing its decision in Keeton, the Court explained that the plaintiff's "lack of `contacts' will not defeat otherwise proper jurisdiction," but those contacts "may be so manifold as to permit jurisdiction when it would not exist in their absence." Id. (citing Keeton, 465 U.S. at 778-81, 104 S.Ct. 1473). The plaintiff's lack of contacts with New Hampshire was not decisive in Keeton, but the plaintiff's contacts with California were crucial to the Court's decision in Calder because they evinced "the `effects' of [the defendant's] Florida conduct in California." Id. at 789, 104 S.Ct. 1482.
We previously addressed and applied Keeton and Calder in Michiana, 168 S.W.3d at 781-85. Although the claims in Michiana were not based on defamatory statements or broadcasts, our discussion of Keeton and Calder in Michiana helps lay the proper foundation for the resolution of this case. The plaintiff in Michiana, a Texas resident, purchased a recreational vehicle from an Indiana dealer that "only did business in Indiana." Id. at 781. Seeking a lower price than he could get from a Texas dealer, the plaintiff called the dealer in Indiana to negotiate the deal, then "sent payment to Indiana, paid for delivery from Indiana, and agreed to resolve every dispute in Indiana." Id. But when a dispute arose, he filed in Texas, asserting claims for breach of contract, breach of warranty, fraud, and DTPA violations based on misrepresentations the dealer allegedly made during the parties' phone call. Id. at 784; see also id. at 794 (Medina, J., dissenting). (listing causes of action asserted). Relying on the three principles that govern a purposeful-availment analysis — only the defendant's forum contacts count; the contacts must be "purposeful" rather than "random, isolated, or fortuitous"; and the defendant "must seek some benefit, advantage, or profit by `availing' itself of the jurisdiction" — we held that the evidence did not establish that the dealer had purposefully availed itself of the privilege of conducting activities in Texas. Id. at 785.
We then addressed the court of appeals' holding that Texas could assert specific jurisdiction over the dealer because the dealer had "committed a tort in Texas" by making misrepresentations in its phone call with the plaintiff. Id. at 788. Like several other Texas appellate courts, the court of appeals had relied on Calder to hold that "[i]f a tortfeasor knows that the brunt of the injury will be felt by a particular resident in the forum state, he must reasonably anticipate being haled into court there to answer for his actions." Id. We rejected that overly simplistic interpretation of Calder because it ignored Calder's reliance on the fact that the defendants knew that their article "was for their employer, the National Enquirer, which sold more than 600,000 copies in the forum state every week." Id. at 789 (citing Calder, 465 U.S. at 785 n. 2, 104 S.Ct. 1482). The Calder defendants' article "constituted a substantial `presence' in the state." Id. The single RV the Michiana defendant sold to a Texas resident did not. Construing Calder in light of Keeton's reliance on the defendant's distributing thousands
The Supreme Court recently confirmed our understanding of Calder and Keeton in Walden v. Fiore, ___ U.S. ___, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014). The defendant in Walden, a Georgia police officer assigned to a federal drug-interdiction team, confiscated money from the plaintiffs at the Atlanta airport. Id. at 1119. The plaintiffs were Nevada residents catching a connecting flight in Atlanta on their way from Puerto Rico. Id. They sued the Georgia defendant in Nevada, alleging he violated their Fourth Amendment rights by seizing and attempting to forfeit their money, in part by signing a false affidavit. Id. at 1119-20. The Ninth Circuit concluded that Nevada courts had specific jurisdiction over the Georgia defendant because the defendant had "`expressly aimed' his submission of the allegedly false affidavit at Nevada by submitting the affidavit with knowledge that it would affect persons with a `significant connection' to Nevada." Id. at 1120. The Supreme Court reversed, holding that "the mere fact that [the defendant's] conduct affected plaintiffs with connections to the forum State does not suffice to authorize jurisdiction." Id. at 1126.
The Court reaffirmed that the specific-jurisdiction inquiry "focuses `on the relationship among the defendant, the forum, and the litigation.'" Id. at 1121 (quoting Keeton, 465 U.S. at 775, 104 S.Ct. 1473). Thus, "the relationship must arise out of contacts that the `defendant himself' creates with the forum State," id. at 1122 (quoting Burger King, 471 U.S. at 475, 105 S.Ct. 2174), and the "analysis looks to the defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there," id. (citing Int'l Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). The Court explained that Calder focused on the "various contacts the defendants had created with California (and not just with the plaintiff)." Id. at 1123. The defendants' contacts were sufficient in Calder because they had relied on "California sources" for information, they had written "the story about the plaintiff's activities in California," and they had caused the "brunt of the injury" in California "by writing an allegedly libelous article that was widely circulated in the State." Id. (quoting Calder, 465 U.S. at 788-89, 104 S.Ct. 1482). "In sum, California [wa]s the focal point both of the story and of the harm suffered." Id. (quoting Calder, 465 U.S. at 789, 104 S.Ct. 1482). Under Calder, "mere injury to a forum resident is not a sufficient connection to the forum." Instead, "an injury is jurisdictionally relevant only insofar as it shows that the defendant has formed a contact with the forum State," and "[t]he proper question is not where the plaintiff experienced a particular injury or effect but whether the defendant's conduct connects him to the forum in a meaningful way." Id. at 1125.
With these precedents and principles in mind, we now consider Trevino's allegations and the evidence regarding Petitioners' contacts with Texas to determine whether they support the trial court's finding that Petitioners purposefully availed themselves of the benefits of conducting activities in the state. Specifically, we consider
We conclude that the evidence of the first three contentions does not establish purposeful availment, but the evidence of the fourth one does.
No one disputes that Trevino resides in Texas and the brunt of any injuries she suffered from Petitioners' broadcasts occurred in Texas. Petitioners argue, however, that the court of appeals erred by finding jurisdiction based on these facts because we expressly rejected the "directed-a-tort" test for specific jurisdiction in Michiana. Petitioners are mostly correct. See Michiana, 168 S.W.3d at 788-91. We explained in Michiana that courts cannot base specific jurisdiction merely on the fact that the defendant "knows that the brunt of the injury will be felt by a particular resident in the forum state." Id. at 788. "Put simply, however significant the plaintiff's contacts with the forum may be, those contacts cannot be `decisive in determining whether the defendant's due process rights are violated.'" Walden, 134 S.Ct. at 1122 (quoting Rush v. Savchuk, 444 U.S. 320, 332, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980)).
As Trevino notes, however, the court of appeals did not rely on the mere fact that Trevino lives in Texas and allegedly suffered harm here. To the contrary, the court agreed with Petitioners that its analysis should not focus "on where the plaintiffs felt the harm caused by the defamation if the defendants have not directed the publication or broadcast at the forum," and explained that it had "not considered [Trevino's] injury or residence in [its] analysis because it is not relevant." ___ S.W.3d at ___, 2014 WL 346031, at *22. Petitioners contend that, despite these disclaimers, the court in fact relied on the directed-a-tort test by holding that Texas courts can exercise specific jurisdiction because Petitioners "purposefully directed their broadcasts at Texas." Id. at ___, 2014 WL 346031 *25. We disagree.
There is a subtle yet crucial difference between directing a tort at an individual who happens to live in a particular state and directing a tort at that state. In Michiana, for example, the defendant allegedly directed a tort (by making misrepresentations in a phone call) at a plaintiff who lived in Texas, but that was the defendant's only contact with Texas. 168 S.W.3d at 789. By contrast, in Keeton, the plaintiff did not even reside in the forum state, but the defendant had "continuously and deliberately exploited the New Hampshire market" by regularly distributing its magazines there. 465 U.S. at 781, 104 S.Ct. 1473. Thus, when the magazine ran a story that allegedly defamed the plaintiff, it directed a tort at the state of New Hampshire, not just at the plaintiff. Under Keeton, Calder, Walden, and Michiana, the fact that the plaintiff lives and was injured in the forum state is not irrelevant to the jurisdictional inquiry, but it is relevant only to the extent that it shows that the forum state was "the focus of the activities of the defendant." Keeton, 465 U.S. at 780, 104 S.Ct. 1473. We thus conclude, as the court of appeals also concluded, that the mere fact that Petitioners directed defamatory statements at a plaintiff who lives in and allegedly suffered injuries in Texas, without more, does not establish specific jurisdiction over Petitioners.
We next address Trevino's allegations and evidence that Petitioners' broadcasts, though originating in Mexico, reached Texas residents through their television sets in their Texas homes. Petitioners do not dispute this contention, at least with respect to over-the-air transmissions. Publimax's controller explained that TV Azteca's two affiliated stations in Monterrey direct their broadcasts "at viewers in the northeast zone of Mexico, not Texas," but he acknowledged that households in South Texas may receive the broadcasts due to "signal `spill-over,'" which results from the over-the-air signals "following the law of physics." Petitioners concede that the signals carry "far enough that they might be received by households or cable system operators in a small section of the Rio Grande Valley," and that Texas cable companies that receive those signals may rebroadcast them to their cable subscribers. As the court of appeals noted, there is evidence that "programs broadcast by TV Azteca and Publimax [are] seen in Texas potentially by over one million viewers." ___ S.W.3d at ___, 2014 WL 346031, at *20. Comparing these broadcasts to the Keeton and Calder defendants' "regular circulation" of thousands of magazines in those forum states, the court concluded that Petitioners' act of "broadcasting programs to residents of Texas supports an assertion of jurisdiction in this case." Id.
Petitioners and their supporting amici
Several courts have addressed specific jurisdiction based on electronic broadcasts, and many have at least arguably found minimum contacts based solely on the fact that the broadcasts could be received in the forum state.
Trevino argues, however, that Petitioners knew their broadcasts would reach Texas homes. Trevino points to evidence, for example, that Publimax stated on its website that the two Monterrey television stations reached 766,087 viewers in South Texas in 2008 and 1,583,829 in 2012. Petitioners do not dispute that they knew the programs could be viewed in Texas, but they contend that mere known accessibility is not enough to support specific jurisdiction. Instead, they assert, the defendant must "aim" its broadcasts at the forum state. See, e.g., Calder, 465 U.S. at 789, 104 S.Ct. 1482 (noting that defendants were "not charged with mere untargeted negligence," but "expressly aimed" their actions at California).
Many of the courts that found jurisdiction based on broadcasts in the forum expressly noted that the defendants knew that the broadcasts would be viewable in those states.
We find a helpful analogy on this issue in our stream-of-commerce cases. Under the stream-of-commerce theory of personal jurisdiction, "a nonresident who places products into the `stream of commerce' with the expectation that they will be sold in the forum state" may be subject to personal jurisdiction in the forum. Moki Mac, 221 S.W.3d at 576-77. But even under that theory, mere knowledge that the product will be sold in the forum state is not enough. A product seller's "awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State." CSR, 925 S.W.2d at 595 (quoting Asahi, 480 U.S. at 112, 107 S.Ct. 1026). Instead, "additional conduct" must demonstrate "an intent or purpose to serve the market in the forum State." Moki Mac, 221 S.W.3d at 577 (quoting Asahi, 480 U.S. at 112, 107 S.Ct. 1026); see also J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873, 131 S.Ct. 2780, 2788, 180 L.Ed.2d 765 (2011) ("The defendant's transmission of goods permits the exercise of jurisdiction only where the defendant can be said to have targeted the forum; as a general rule, it is not enough that the defendant might have predicted that its goods will reach the forum State."); Zinc Nacional, S.A. v. Bouche Trucking, Inc., 308 S.W.3d 395, 397 (Tex.2010) ("The fact that a seller knows his goods will end up in the forum state does not support jurisdiction when the seller made no attempt to market its goods there."); Moki Mac, 221 S.W.3d at 577 ("[T]he facts alleged must indicate that the seller intended to serve the Texas market.").
In the same way, we conclude that a broadcaster's mere knowledge that its programs will be received in another jurisdiction is insufficient to establish that the broadcaster purposefully availed itself of the benefits of conducting activities in that jurisdiction. Instead, evidence of "additional conduct" must establish that the
Trevino contends that evidence of Petitioners' additional conduct demonstrates that they intended to serve the Texas market with their broadcasts. Relying on Calder, Petitioners argue that the evidence does not establish that they intentionally targeted Texas because the subject matter of the allegedly defamatory broadcasts had no relation to Texas and Petitioners did not rely on Texas sources to prepare those broadcasts. We agree that the evidence does not establish targeting under Calder's "subject-and-sources" test, but we do not agree that the subject-and-sources test is the only way to establish that a broadcaster targeted a forum state. Instead, a plaintiff can establish that a defamation defendant targeted Texas by relying on other "additional conduct" through which the defendant "continuously and deliberately exploited" the Texas market. Keeton, 465 U.S. at 781, 104 S.Ct. 1473. We conclude that Trevino has done so here.
The Supreme Court found that the defendants in Calder were "not charged with mere untargeted negligence," but instead had "expressly aimed" their actions at California, because their article "concerned the California activities of a California resident" and "was drawn from California sources." 465 U.S. at 788-89, 104 S.Ct. 1482. Petitioners rely on three Fifth Circuit cases to argue that, under Calder, an allegedly defamatory broadcast targets the forum state only if the subject matter of the article involves events in the state and the broadcaster prepared the article by relying on sources in the state. First, in Revell v. Lidov, the Fifth Circuit held that "the sources relied upon and activities described in an allegedly defamatory publication should in some way connect with the forum if Calder is to be invoked." 317 F.3d 467, 474 (5th Cir.2002). Then, in Fielding v. Hubert Burda Media, Inc., the court relied on Revell for the proposition that "[t]his Court has held that, to exercise specific jurisdiction in a libel action, the `aim' of the plaintiff under the Calder test must be demonstrated by showing that (1) the subject matter of and (2) the sources relied upon for the article were in the forum state." 415 F.3d 419, 426 (5th Cir. 2005) (citing Revell, 317 F.3d at 474 & n. 48). Finally, in Clemens v. McNamee, the court again stated, "We read Calder as requiring the plaintiff seeking to assert specific personal jurisdiction over a defendant in a defamation case to show `(1) the subject matter of and (2) the sources relied upon for the article were in the forum state.'" 615 F.3d 374, 380 (5th Cir.2010) (quoting Fielding, 415 F.3d at 426).
We agree with Petitioners that the subject-and-sources test is consistent with Calder's approach to determining whether a defamation defendant "expressly aimed" its communication to a forum state. We also agree that the evidence in this case does not support specific jurisdiction under this test. The subject matter of the allegedly defamatory broadcasts is completely unrelated to Texas. Trevino alleges that Petitioners defamed her by making statements that are almost exclusively about events that occurred outside of and completely unrelated to Texas. Specifically, she asserts the Petitioners:
We agree with Petitioners that these broadcasts did not "concern[ ] the [Texas] activities of a [Texas] resident," Calder, 465 U.S. at 788, 104 S.Ct. 1482, or describe activities having a connection with Texas, Revell, 317 F.3d at 474, as the subject-and-sources test requires. With the exception of the coverage of the house fire — which occurred in 1999, nearly ten years before the broadcasts about which Trevino primarily complains — and Trevino's assertion that one of the alleged assault victims resides in Texas, all of the statements relate to people and events in Brazil or Mexico. Thus, the evidence does not support a finding of purposeful availment under the Calder subject-and-sources test sufficient to make Texas "the focal point" of the broadcasts at issue. See Calder, 465 U.S. at 789, 104 S.Ct. 1482.
Citing the Fifth Circuit's decision in Clemens, Trevino asserts that the subject-and-sources test is only one method of proving that a defamation defendant targeted the forum state, and it need not be met when evidence otherwise establishes that the defendant's statement was "aimed at or directed to" the state. See Clemens, 615 F.3d at 380. Petitioners disagree, arguing that "whether the forum state is the focal point of the story is a crucial criterion in determining whether the story is directed at the forum state." We agree with Trevino.
When the Fifth Circuit first articulated the subject-and-sources test in Revell, it emphasized "[a]t the outset" that Calder's "`effects' test is but one facet of the ordinary minimum contacts analysis, to be considered as part of the full range of the defendant's contacts with the forum." 317 F.3d at 473 (citing Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 869 (5th Cir.2001)).
Even if the Fifth Circuit recognized the subject-and-sources test as the exclusive method for establishing personal jurisdiction over a defamation defendant, we would disagree. The test determines whether the forum state was "the focal point ... of the story," which in turn determines whether the defendant purposefully availed itself of the benefits of conducting activities in the state sufficient to establish minimum contacts. Calder, 465 U.S. at 788-89, 104 S.Ct. 1482. In Keeton, the plaintiff had no relevant contacts with New Hampshire, and the offending articles did not address events related to or drawn from sources within that state. 465 U.S. at 772-73, 104 S.Ct. 1473. Nevertheless, the Court found minimum contacts because the defendant had "continuously and deliberately exploited the New Hampshire market." Id. at 781, 104 S.Ct. 1473. We must likewise determine whether Petitioners had "an intent or purpose to serve the market in the forum State." Moki Mac, 221 S.W.3d at 577 (quoting Asahi, 480 U.S. at 112, 107 S.Ct. 1026).
As we have explained, the mere facts that Petitioners' signal reaches into Texas and that Petitioners know it does do not establish that Petitioners purposefully sought to serve the Texas market through their broadcasts. Petitioners cite to evidence to show that is, in fact, not their intent. TV Azteca's contract with Publimax, for example, limits Publimax's right to broadcast TV Azteca's programs like Ventaneando only to three Mexican states: Nuevo Leon, Coahuila, and Tamaulipas. Chapoy testified that her programs reported stories deemed appealing to Mexican viewers and that her intended viewership included "primarily Mexican citizens and residents, and not viewers located in the State of Texas." In short, Petitioners' evidence tends to establish that the signals "involuntarily strayed" into Texas as a result of "signal `spill-over,'" which occurs naturally from the broadcasts in Mexico.
Trevino submitted evidence, however, that Petitioners made substantial and successful efforts to benefit from the fact that the signals travel into Texas, as well as additional efforts to promote their broadcasts and expand their Texas audience. This evidence generally falls into three categories of activities. First, Trevino points to evidence that Petitioners actually physically "entered into" Texas to produce and promote their broadcasts. Between 2005 and 2009, for example, when Petitioners were producing and airing the allegedly defamatory stories about Trevino, TV Azteca had a business office and production
Second, Trevino points to evidence that Petitioners derived substantial revenue and other benefits by selling advertising time to Texas businesses. As we previously noted, Publimax's website included a map of its viewing market that at least arguably promoted that the stations (which Publimax operates and TV Azteca owns) had over 1.5 million viewers in South Texas. Trevino points to evidence that Petitioners took advantage of this Texas audience as a means to increase their advertising revenue in Texas. For example, the record includes evidence that:
And third, Trevino points to evidence that Petitioners made substantial and successful efforts to distribute their programs and increase their popularity in Texas, including the programs in which they allegedly defamed Trevino. For example, Trevino points to evidence that:
Petitioners argue that this evidence, at best, establishes that AIC and other companies intentionally target Texas, but it does not establish that Petitioners themselves have done so. Arguing that the court of appeals erred by relying on the activities and contacts of these other entities to find specific jurisdiction, Petitioners contend that this evidence shows that they have "not afforded [themselves] the benefits and protections of the laws of Texas, but instead [have] calculatedly avoided them." See Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 808 (Tex. 2002) (quoting Bearry v. Beech Aircraft Corp., 818 F.2d 370, 375-76 (5th Cir.1987)). As we have noted, "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." Michiana, 168 S.W.3d at 785. And we have "rejected attempts to sue foreign subsidiaries in Texas based on a parent corporation's contacts, holding that jurisdiction over one does not automatically establish jurisdiction over the other." Spir Star, 310 S.W.3d at 873.
But the evidence here relates as much to Petitioners' own efforts to target Texas with their broadcasts as it does to AIC's and the other contractors' efforts. To be sure, courts may lack specific jurisdiction over a nonresident defendant who made no independent efforts to purposefully avail itself of Texas and merely contracted with a third party who did. See, e.g., Zinc Nacional, 308 S.W.3d at 396 (holding that a Mexican company "using a third-party trucking service to transport its goods through Texas to an out-of-state customer" did not purposefully avail itself of Texas). But a defendant who "intentionally targets Texas as the marketplace for its products" is subject to specific jurisdiction, and "using a distributor-intermediary for that purpose provides no haven from the jurisdiction of a Texas court." Spir Star, 310 S.W.3d at 871. We conclude that this evidence would support a finding that Petitioners made substantial and successful efforts to distribute their programs in Texas, not just that they contracted with other companies that happened to have contacts with Texas.
We acknowledge Petitioners' evidence that their broadcasts originated in Mexico and were directed primarily at northeastern Mexico and their argument that no evidence suggests that they took steps to direct the signals into Texas or that they reasonably could have stopped that from happening. But whether Petitioners intentionally directed the signals into Texas or not, we must look for evidence that each of the Petitioners took specific and substantial actions to take advantage of the fact that the signals reach into Texas and
When determining personal jurisdiction, "[e]ach defendant's contacts with the forum State must be assessed individually." Calder, 465 U.S. at 790, 104 S.Ct. 1482. As the evidence we have listed demonstrates, each of the Petitioners physically entered Texas, sought revenue from Texas, and made efforts to distribute their broadcasts and increase their popularity in Texas. Publimax argues that it did not create, produce, or exercise editorial control over the allegedly defamatory broadcasts, so it cannot be charged with having targeted Texas with defamatory statements. But at this stage of the litigation, the issue is not whether the broadcasts were defamatory (an issue we do not address), but whether Publimax purposefully availed itself of Texas through those broadcasts.
For her part, Chapoy argues that the evidence does not establish her minimum contacts with Texas because she did not control the broadcasts. But the evidence establishes that she personally promoted Ventaneando in Texas. Like the editor and reporter who argued in Calder that they were "not responsible for the circulation of [their] article in California" and had "no direct economic stake in their employer's sales in a distant State," Chapoy's broadcasts were "expressly aimed" at Texas. 465 U.S. at 790, 104 S.Ct. 1482. And there is evidence that she knew that the programs would have a substantial audience in Texas and "the brunt" of Trevino's injury would be felt in Texas. See Michiana, 168 S.W.3d at 789 (citing Calder, 465 U.S. at 785 n.2, 104 S.Ct. 1482) (noting the Calder Court's reliance on the fact that the editor and reporter knew their article "was for their employer, the National Enquirer, which sold more than 600,000 copies in the forum state every week").
The evidence that Petitioners physically "entered into" Texas to produce and promote their broadcasts, derived substantial revenue and other benefits by selling advertising to Texas businesses, and made substantial efforts to distribute their programs and increase their popularity in Texas supports the trial court's finding that Petitioners "continuously and deliberately exploited the [Texas] market." Keeton, 465 U.S. at 781, 104 S.Ct. 1473. We thus conclude that the evidence supports the trial court's finding that through their broadcasts, Petitioners purposefully availed themselves of the benefits of conducting activities in Texas, such that they "could reasonably anticipate being haled into court there." Moncrief Oil, 414 S.W.3d at 152.
Because we are addressing the issue of specific — as opposed to general — jurisdiction, we must also determine whether Trevino's claim "arises from or is related to [Petitioners'] purposeful activities in the state." Id. at 150. "For specific-jurisdiction purposes, purposeful availment has no jurisdictional relevance unless the defendant's liability arises from or relates to the forum contacts." Moki Mac, 221 S.W.3d at 579. A claim arises from or relates to a defendant's forum contacts if there is a "substantial connection between those contacts and the operative facts of the litigation." Id. at 585; see Spir Star, 310 S.W.3d at 874 (stating same); Walden, 134 S.Ct. at 1121 ("For a State to exercise jurisdiction consistent with due process, the defendant's suit-related conduct must create a substantial connection with the forum State.").
This "substantial connection" standard does not require proof that the plaintiff would have no claim "but for" the contacts, or that the contacts were a "proximate
Petitioners contend that, even if the evidence we have described establishes that they purposefully availed themselves of the benefits of doing business in Texas, Trevino's claims are not substantially connected to those Texas contacts. The map showing their Texas viewership, for example, "contains no alleged defamation," and the advertising contracts and revenues from Texas are not "in any way attributable to the subject broadcasts." They thus compare this case to the circumstances we addressed in Moki Mac, in which Texas plaintiffs, the Druggs, sought specific jurisdiction over an Arizona outfitter company based in part on the company's advertising of its programs in Texas. 221 S.W.3d at 585-86. The Druggs sued the Arizona outfitter, Moki Mac, after their son, Andy, fell off a cliff and died while on a hiking trip Moki Mac led in Arizona, asserting wrongful-death claims for negligence and claims for intentional and negligent misrepresentation. Id. at 573. We held that Moki Mac's Texas advertisements were not substantially connected to the Druggs' claims, because "claims arising out of personal injury that occurs outside the forum do not arise from or relate to a defendant's forum advertising." Id. at 586. We concluded that "the injuries for which the Druggs seek recovery [were] based on Andy's death on the hiking trail in Arizona, and the relationship between the operative facts of the litigation and Moki Mac's promotional activities in Texas [were] simply too attenuated to satisfy specific jurisdiction's due-process concerns." Id. at 588. Petitioners here argue that, as in Moki Mac, Trevino's defamation claims do not arise from or relate to Petitioners' map, advertising contracts, studio, promotional tour, and other Texas contacts.
Petitioners overlook a key distinction between Moki Mac and this case. In Moki Mac, the evidence of the defendant's Texas contacts was insufficient to support specific jurisdiction in Texas because the "operative facts" of the suit occurred in Arizona. Id. at 585. In other words, Moki Mac's "actionable conduct," from which the claim arose, occurred in Arizona, and its "additional conduct" of advertising in Texas did not transform its actionable conduct in Arizona into a contact with Texas. We explained,
Id. at 585.
In Moki Mac, the actionable conduct occurred and caused harm outside of the
But the fact that the actionable conduct occurred in Texas is only one stage of the analysis, and it is not enough. For jurisdiction to exist, the actionable conduct within Texas must be conduct through which Petitioners purposefully had contact with Texas and sought some "benefit, advantage, or profit by `availing' itself of the jurisdiction." Michiana, 168 S.W.3d at 785. Thus, unlike in Moki Mac, the question here is not whether Trevino's claims arise from Petitioners' additional conduct in Texas (the promotional map, advertising contracts, the promotional tour, etc.), but whether that additional conduct establishes that Petitioners purposefully availed themselves of Texas through their actionable conduct in Texas (the broadcasts). The relevance of the additional conduct, in other words, is not to establish that those contacts constitute Petitioners' minimum contacts with Texas, but to establish that the actionable conduct in Texas itself constitutes minimum contacts.
In this regard, this case is more like the stream-of-commerce cases, in which the court determines whether a seller's placement of its product into the stream of commerce constitutes minimum contacts when the product travels into and causes harm in the forum state. See, e.g., CSR, 925 S.W.2d at 595. In those cases, the seller's "awareness that the stream of commerce may or will sweep the product into the forum State" is not enough, and "additional conduct" must indicate "an intent or purpose to serve the market in the forum State." Asahi, 480 U.S. at 112, 107 S.Ct. 1026. We expressly acknowledged this principle in Moki Mac, and explained, "In determining whether the defendant purposefully directed action toward Texas, we may look to conduct beyond the particular business transaction at issue: `[a]dditional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State.'" 221 S.W.3d at 577 (quoting Asahi, 480 U.S. at 112, 107 S.Ct. 1026).
We further noted in Moki Mac that "[e]xamples of additional conduct that may indicate whether a defendant purposefully availed itself of a particular forum include advertising and establishing channels of regular communication to customers in the forum state." Id. Or, as we listed more thoroughly in Spir Star, "[e]xamples of this additional conduct include: (1) `designing the product for the market in the forum State,' (2) `advertising in the forum State,' (3) `establishing channels for providing regular advice to customers in the forum State,' and (4) `marketing the product through a distributor who has agreed to serve as the sales agent in the forum State.'" Spir Star, 310 S.W.3d at 873 (quoting Asahi, 480 U.S. at 112, 107 S.Ct. 1026). Although this conduct may be "beyond the particular business transaction at issue" (i.e., the allegedly defamatory broadcasts), it is the kind of "additional conduct" that "indicate[s] an intent or purpose to serve the market in the forum State.'" Moki Mac, 221 S.W.3d at 577 (quoting Asahi, 480 U.S. at 112, 107 S.Ct. 1026). The evidence of "additional conduct"
Even when a nonresident has established minimum contacts with a state, due process permits the state to assert jurisdiction over the nonresident only if doing so comports with "traditional notions of fair play and substantial justice." Int'l Shoe, 326 U.S. at 316, 66 S.Ct. 154; Moncrief Oil, 414 S.W.3d at 154. Typically, "[w]hen a nonresident defendant has purposefully availed itself of the privilege of conducting business in a foreign jurisdiction, it is both fair and just to subject that defendant to the authority of that forum's courts." Spir Star, 310 S.W.3d at 872. Thus, "[i]f 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." Moncrief Oil, 414 S.W.3d at 154-55.
Nevertheless, we consider several factors to evaluate the fairness and justness of exercising jurisdiction over a nonresident defendant: (1) the burden on the defendant; (2) the interests of the forum in adjudicating the dispute; (3) the plaintiff's interest in obtaining convenient and effective relief; (4) the international judicial system's interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several nations in furthering fundamental substantive social policies. Id. at 155. When the defendant is a citizen of a foreign country, and not just another state, we consider more specifically (6) "the unique burdens placed upon the defendant who must defend itself in a foreign legal system;" (7) the state's regulatory interests; and (8) "the procedural and substantive policies of other nations whose interests are affected as well as the federal government's interest in its foreign relations policies." Guardian Royal, 815 S.W.2d at 229. "To defeat jurisdiction, [the defendant] must present `a compelling case that the presence of some consideration would render jurisdiction unreasonable'" Spir Star, 310 S.W.3d at 878-89 (quoting Guardian Royal, 815 S.W.2d at 231).
Petitioners (and their supporting amici) primarily argue that Texas lacks a constitutionally sufficient interest in providing a forum for the adjudication of this dispute. Specifically, Petitioners argue that Trevino and Gomez are Mexican citizens, and Texas has no interest in this suit by Mexican citizens "against other Mexican citizens over Mexican news broadcasts about Mexican activities." We disagree. Fundamentally, "[a] state has an especial interest in exercising judicial jurisdiction over those who commit torts within its territory," Keeton, 465 U.S. at 776, 104 S.Ct. 1473, and we have never conditioned that interest on the plaintiff's status as a Texas "citizen," as opposed to a Texas "resident."
Focusing on the international nature of this dispute and the respective policies of Mexico and the United States, Petitioners and their amici also argue that the exercise of jurisdiction in this case would infringe upon the interests of Mexico, and in turn, place American broadcasters at risk of unreasonable suits in Mexico and other countries. Our decision upholding Texas jurisdiction over them, they assert, "could well produce undesirable reciprocity, with foreign courts unreasonably exercising jurisdiction over American broadcasters whose over-the-air signals similarly cross national boundaries." And because different countries apply different standards to protect free speech, U.S. broadcasters will "be forced to make editorial decisions and to review programming with an eye to the differing legal standards applicable in other countries, with a clear potential for chilling speech in this country." While we recognize the legitimacy of these concerns, we do not agree that our holding implicates them. We hold that Texas courts have jurisdiction over Petitioners not because their broadcast signals "strayed" and "crossed national boundaries," but because some evidence establishes that Petitioners intentionally targeted Texas with those broadcasts and thereby purposefully availed themselves of the benefits of Texas laws. Requiring nonresidents to comply with the laws of the jurisdictions in which they choose to do business is not unreasonable, burdensome, or unique.
Although Petitioners do not contend that the remaining factors make jurisdiction here constitutionally unfair or unjust, we note that "the international judicial system's interest in obtaining the most efficient resolution of controversies" further supports the exercise of jurisdiction in this case. Petitioners are not the only defendants in this case, and because the other defendants have not challenged the trial court's jurisdiction over them, Texas will host the adjudication of Trevino's claims in this case whether Petitioners are present or not. As we have noted in other cases, adjudicating Trevino's claims against all defendants in one proceeding provides the most efficient means for resolving these disputes. See Moncrief Oil, 414 S.W.3d at 155 ("[B]ecause these claims will be litigated with [another defendant] in a Texas court, it promotes judicial economy to litigate the claims as to all parties in one court."); Spir Star, 310 S.W.3d at 879 ("[B]ecause the claims against [another defendant] will be heard in Texas, it would be more efficient to adjudicate the entire case in the same place."). We thus conclude that the Texas trial court's exercise of jurisdiction over Petitioners in this case will not offend traditional notions of fair play and substantial justice.
Trevino submitted evidence in this case that Petitioners intentionally targeted Texas through their broadcasts that aired in Texas, and Trevino's claims arise from and relate to those broadcasts. Because the
