Dissent - North Sails Group, LLC v. Boards & More GMBH ( 2021 )

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NORTH SAILS GROUP, LLC v. BOARDS & MORE GMBH—DISSENT
ECKER, J., with whom KAHN, J., joins, dissenting.
When sophisticated, longtime contractual partners
domiciled in different jurisdictions end their business
relationship, no one should be surprised that, in the
absence of a forum selection clause, any disputes aris-
ing from the breakup can be litigated in the courts of
either party’s home state. Where else, after all? The
scenario is common and unremarkable—in the rubric
of our minimum contacts jurisprudence, the exercise
of jurisdiction over the foreign party in the aggrieved
party’s home state ‘‘does not offend traditional notions
of fair play and substantial justice.’’ (Internal quotation
marks omitted.) International Shoe Co. v. Washington,
326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945)
(International Shoe). The United States Supreme Court
described the basic rule in these simple terms: ‘‘[W]ith
respect to interstate contractual obligations, we have
emphasized that parties who reach out beyond one state
and create continuing relationships and obligations
with citizens of another state are subject to regulation
and sanctions in the other [s]tate for the consequences
of their activities.’’ (Emphasis added; internal quotation
marks omitted.) Burger King Corp. v. Rudzewicz, 471
U.S. 462, 473, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)
(Burger King). Although the mere act of contracting
with a forum resident, without more, does not automat-
ically confer jurisdiction; see id., 478–79; knowingly
entering into a long-term contractual relationship with
a forum resident makes it eminently fair and foreseeable
in the absence of unusual circumstances, and even more
so thirty-six years after Burger King, in today’s techno-
logically borderless business environment. See, e.g.,
General Electric Co. v. Deutz AG, 270 F.3d 144, 150 (3d
Cir. 2001) (‘‘Courts are not reluctant to find personal
jurisdiction in such instances. ‘[M]odern transportation
and communications have made it much less burden-
some for a party sued to defend himself in a [s]tate
where he engages in economic activity . . . .’ ’’), quot-
ing Burger King Corp. v. Rudzewicz, supra, 474.
Despite this, the majority today holds that Connecti-
cut courts have no jurisdiction over an Austrian entity
with a very American name, Boards and More GmbH
(B&M),1 a global business operation that has been con-
tinuously engaged for almost two decades in an active,
robust, and financially significant contractual relation-
ship with the plaintiff, North Sails Group, LLC (North
Sails), the brick and mortar base of operations of which
is firmly planted in Milford, Connecticut. I find this
result unwarranted on the present record and, there-
fore, respectfully dissent.
The crux of the disagreement between the majority
and this dissent involves the proper application of mini-
mum contacts precedent in the particular context of
long-term, contractual relationships of the nature at
issue in the present case. The two opinions read Burger
King—by far and away the closest United States
Supreme Court precedent—very differently in critical
respects. Ultimately, the majority believes that the prec-
edent imposes a more demanding legal standard than
does the dissent. It concludes that most, if not all, of
B&M’s purported contacts with Connecticut were
‘‘ancillary and incidental’’ for constitutional purposes
because, in the majority’s view, B&M’s relationship with
Connecticut stemmed largely from the ‘‘fortuitous’’ fact
that North Sails ‘‘happens’’ to be a Connecticut resident.
Part I B of the majority opinion. By contrast, I am
convinced that the legal requirements for personal juris-
diction are easily met on the facts of this case due to
the nature and extent of the contractual relationship
that the defendant deliberately chose to establish and
continuously maintain with the plaintiff over the course
of eighteen years. For the reasons that follow, I believe
it is incorrect to characterize B&M’s prolonged, pur-
poseful and commercially meaningful contacts into and
out of Connecticut—the home state of its contracting
partner—as anything like random, fortuitous, or attenu-
ated within the meaning of Burger King and related
precedent.
The relationship between North Sails and B&M has
all of the characteristics of a long-term business venture
of considerable importance to both parties. The compa-
nies have been engaged since 20002 in a joint commer-
cial enterprise that is the very opposite of a one-off,
passing, or sporadic business interaction between com-
mercial parties crossing paths briefly while transacting
a trivial, ancillary, or inconsequential purchase or sale
without discernable terrestrial moorings. Indeed, before
the recent breakup, B&M itself described its contractual
relationship with North Sails as integral to B&M’s inter-
national success, boasting on its corporate website that
its ‘‘Mistral, Fanatic and North Sails brands have made
Boards & More the world leader in the wind surfing
market.’’ For its part, North Sails spent the past twenty
years operating out of a physical facility right here in
Connecticut, administering the contract, promoting and
maintaining the integrity of its market leading brand,
monitoring compliance, negotiating disputes, and bring-
ing into the Connecticut economy revenues of hundreds
of thousands of dollars annually as a result of its perfor-
mance under the contract.
B&M’s contractual connection to Connecticut existed
from the outset. Desiring to continue the relationship
with North Sails enjoyed by B&M’s predecessor in inter-
est, the company’s leadership negotiated the terms of
the contract by sending communications to North Sails’
Milford headquarters and mailing the final agreement
to Milford for execution by Thomas A. Whidden, North
Sails’ president and chief executive officer. B&M knew
full well that it was entering into a contractual relation-
ship with a Connecticut based business, and it purpose-
fully and deliberately directed its activities at and into
Connecticut. The property that B&M purchases from
North Sails is an incorporeal license to use certain North
Sails trademarks (North Marks) that does not require
delivery of a physical product from Connecticut to Aus-
tria. But, at all times, B&M knew that North Sails pos-
sessed an absolute contractual right, on demand, to
require shipment of B&M products, documents, and
marketing materials into Connecticut for inspection.
Indeed, in 2003, B&M’s chief executive officer, Yves
Marchand, evidently considered it important enough to
visit the North Sails facility in Milford in furtherance
of the business relationship during its early stages. Both
before and after that visit, B&M employees—including
high-level executives—directed literally hundreds of
business related letters, faxes, telephone calls, and
e-mails to North Sails in Milford over the years. These
communications, as we shall see, have included many
substantive and even contractually essential correspon-
dences on subjects going to the heart of the parties’
commercial relationship.
The simple fact of the matter is that B&M made a
voluntary, informed choice to enter into a long-term
contractual relationship with North Sails, and it did so
knowing full well that North Sails would perform its
principal obligations under the contract—including fil-
ing, processing, maintaining, and protecting the parties’
rights to and the value of the North Marks trade name—
from its headquarters in Milford. B&M further under-
stood—indeed, the parties’ contract expressly states—
that B&M’s use of the North Marks would be subject
to various forms of ongoing oversight by North Sails
from and in Connecticut. This included a duty on the
part of B&M (1) to send, upon North Sails’ request,
samples of the licensed products and associated adver-
tising and promotional materials and quality control
test data for North Sails’ inspection in Connecticut,
(2) to furnish copies of B&M’s quarterly and annual
financial statements to North Sails in Connecticut to
allow North Sails to review and verify its royalty pay-
ments, and (3) to conform to all standards and specifica-
tions set forth in successive revisions of the North Sails
Corporate Identification Manual, promulgated from its
Milford headquarters. Moreover, several provisions of
the contract also obligate B&M to cooperate to the
greatest extent reasonably possible in North Sails’
defense in any legal action involving the North Marks,
meaning that B&M understood from the outset that
it could become involved in litigation in Connecticut
should North Sails be sued by a third party in its home
state. And, finally, it is undisputed that thousands of
dollars of B&M products, including those that were
subject to the parties’ trademark licensing agreement,
were marketed and sold in Connecticut.
The majority alternatively overlooks or understates
the importance of these facts. In my view, B&M’s numer-
ous contacts with Connecticut make it clear that B&M
reasonably could have foreseen, from the outset, that
it might be haled into court in Connecticut and that it
purposefully availed itself of the benefits and protec-
tions of this state such that requiring it to answer here
for harms allegedly done to a Connecticut resident
would not be unjust. Sister courts routinely have con-
cluded that jurisdiction is proper on facts such as these.
The majority, in sum, construes the federal constitution
too narrowly, fails to consider key legal and factual
aspects of the present case, and reaches an unfortunate
result inconsistent with the realities of contemporary
commercial life in which Connecticut businesses oper-
ate.
I
I begin by noting that, although I take issue with
the majority’s recitation of the relevant facts and its
application of the law to those facts, I largely agree at
the broadest level with the majority’s summary of the
governing legal framework under International Shoe
and its progeny. Our disagreement about the law resides
in various important details, which I will address in
due course. I would, however, emphasize four general
points at the outset.
First, at this stage in the proceedings, the plaintiff
need only make a prima facie showing that jurisdiction
is proper. See Designs for Health, Inc. v. Miller, 187
Conn. App. 1, 12–13, 201 A.3d 1125 (2019). Although
the majority takes issue with this proposition, it is not
clear to me that our disagreement on this narrow legal
issue is anything more than semantical. I believe that
the majority and I agree on all of the following: (1) the
plaintiff bears the burden of advancing allegations or
evidence sufficient to establish the court’s personal
jurisdiction over a nonresident defendant, (2) in the
absence of any contrary evidentiary showing by the
defendant, the plaintiff need only allege facts sufficient
to establish minimum contacts—it need not establish
those facts by a preponderance of the evidence, (3) all
undisputed allegations and facts must be construed in
the light most favorable to the plaintiff, drawing all
reasonable inferences in the plaintiff’s favor, (4) if the
defendant sets forth evidence that calls jurisdiction into
question and the plaintiff fails to respond with affidavits
or evidence in support of its contrary allegations, the
action must be dismissed, and (5) if the defendant sets
forth evidence calling jurisdiction into question and
the plaintiff responds with affidavits or evidence that
creates a material factual dispute, the trial court must
either conduct an evidentiary hearing to resolve that
dispute or defer resolution of the dispute until trial.
Regardless of whether one or both parties proffer evi-
dence on the jurisdictional question, and regardless of
whether there is any material factual dispute, the fed-
eral courts routinely characterize the plaintiff’s burden
as a ‘‘prima facie’’ showing because the plaintiff need
only make ‘‘an averment of facts that, if credited by
the ultimate trier of fact, would suffice to establish
jurisdiction over the defendant.’’ (Internal quotation
marks omitted.) MacDermid, Inc. v. Canciani, 525 Fed.
Appx. 8, 10 (2d Cir. 2013); see, e.g., Druck Corp. v.
Macro Fund (U.S.) Ltd., 102 Fed. Appx. 192, 193–94
(2d Cir. 2004) (applying prima facie standard despite
lack of any factual dispute); Pecoraro v. Sky Ranch for
Boys, Inc., 340 F.3d 558, 562 (8th Cir. 2003) (concluding,
on basis of undisputed allegations, that ‘‘[the plaintiff]
has made the requisite prima facie showing of minimum
contacts’’); Djordjevich v. Bundesminister Finanzen,
Germany, Docket No. 93-7149, 1997 WL 530499, *2–3
(D.C. Cir. July 21, 1997) (decision without published
opinion, 124 F.3d 1309) (similar); PDK Labs, Inc. v.
Friedlander, 103 F.3d 1105, 1109 (2d Cir. 1997) (‘‘[the
plaintiff’s] allegations—uncontested in material part—
regarding [the defendant’s] actions satisfy its prima
facie burden’’); Stone v. Chung Pei Chemical Industry
Co., Ltd., 790 F.2d 20, 22 (2d Cir. 1986) (similar). This
approach, as followed by the United States Court of
Appeals for the Second Circuit, has been summarized
as follows: ‘‘Whatever procedural path the [trial] court
chooses to follow determines the plaintiff’s burden of
proof and the standard to be applied on appeal. If the
court chooses to rely on pleadings and affidavits, the
plaintiff need only make a prima facie showing of per-
sonal jurisdiction over [the] defendant. . . . However,
if that initial decision is contested, the plaintiff must
then prove, following discovery, either at a [pretrial]
hearing or at trial, that jurisdiction exists by a prepon-
derance of the evidence. . . . The [c]ourt may examine
the affidavits and depositions submitted by the parties
to establish personal jurisdictional facts, so long as
these documents are considered in the light most favor-
able to the [nonmoving] party. . . . While the plaintiff’s
prima facie showing may be established solely by allega-
tions, [a]fter discovery, [that] showing, necessary to
defeat a jurisdiction testing motion, must include an
averment of facts that, if credited by the trier, would
suffice to establish jurisdiction over the defendant. At
that point, the prima facie showing must be factually
supported.’’ (Citations omitted; internal quotation marks
omitted.) Dubied Machinery Co. v. Vermont Knitting
Co., Docket No. 85 Civ. 8610 (PKL), 1991 WL 84511, *1
(S.D.N.Y. May 14, 1991).3
The Appellate Court has followed suit, embracing the
federal approach, which is well settled and universally
recognized.4 See Designs for Health, Inc. v. Miller,
supra, 187 Conn. App. 12–13. This court has never held
otherwise. Of course, if for some reason the majority
objects to using the label ‘‘prima facie’’ in this context,
it is free to use other language to characterize the plain-
tiff’s burden. The only important thing is that we hold
fast to the well established rule that all facts and plead-
ings, and all reasonable inferences drawn therefrom,
must be construed in favor of North Sails at this stage.
As I discuss in this opinion, I fear that the majority loses
sight of this important requirement at numerous points.
Second, when the trial court has not engaged in juris-
dictional fact-finding, a motion to dismiss for lack of
personal jurisdiction presents a legal question over
which this court exercises de novo review. See Kenny
v. Banks, 289 Conn. 529, 532, 958 A.2d 750 (2008). When
‘‘an evidentiary hearing was not requested . . . by
either party, we will accept, as the trial court should,
all undisputed factual allegations for the purpose of
determining whether the plaintiffs have sustained their
burden of proving that the court had personal jurisdic-
tion . . . .’’ (Emphasis added.) Knipple v. Viking Com-
munications, Ltd., 236 Conn. 602, 608–609, 674 A.2d
426 (1996); see also Golodner v. Women’s Center of
Southeastern Connecticut, Inc., 281 Conn. 819, 826, 917
A.2d 959 (2007) (‘‘a motion to dismiss admits all facts
well pleaded and invokes any record that accompanies
the motion, including supporting affidavits that contain
undisputed facts’’ (emphasis added)). In this context,
de novo review entails independent appellate consider-
ation of the entire record for constitutionally relevant
minimum contacts. See, e.g., Xena Investments, Ltd.
v. Magnum Fund Management Ltd., 726 F.3d 1278,
1283–84 (11th Cir. 2013) (concluding that personal juris-
diction was proper on basis of de novo review of
record); Mellon Bank (East) PSFS, National Assn. v.
Farino, 960 F.2d 1217, 1224 (3d Cir. 1992) (‘‘a court is
required to make an independent factual assessment
of a defendant’s contacts with the forum’’); Vons Com-
panies, Inc. v. Seabest Foods, Inc., 14 Cal. 4th 434, 449,
926 P.2d 1085, 58 Cal. Rptr. 2d 899 (1996) (‘‘[w]hen
no conflict in the evidence exists . . . the question of
[personal] jurisdiction is purely one of law and the
reviewing court engages in an independent review of the
record’’), cert. denied sub nom. Washington Restaurant
Management, Inc. v. Vons Companies, Inc., 522 U.S.
808, 118 S. Ct. 47, 139 L. Ed. 2d 13 (1997); VKGS, LLC
v. Planet Bingo, LLC, 285 Neb. 599, 612, 828 N.W.2d
168 (2013) (reversing trial court’s dismissal of action
for lack of personal jurisdiction after independently
reviewing complaint and affidavits in light most favor-
able to plaintiff); Guffey v. Ostonakulov, 321 P.3d 971,
975 (Okla. 2014) (‘‘[t]he determination of in personam
jurisdiction is a legal ruling, subject to de novo review
by this [c]ourt, and this [c]ourt will canvas[s] the record
for proof that the nonresident party had sufficient con-
tacts’’ (emphasis omitted; footnote omitted)).
Third, I agree with the majority that the trial court
went astray when it concluded that the present case was
governed by the decision of the United States Supreme
Court in Bristol-Myers Squibb Co. v. Superior Court,
U.S. , 137 S. Ct. 1773, 198 L. Ed. 2d 395 (2017).
See footnote 8 of the majority opinion. Applying well
established law, Bristol-Myers Squibb Co., which
addressed the question of personal jurisdiction in a
product liability action, held that specific personal juris-
diction regarding certain plaintiffs’ claims was lacking
because the injuries alleged to have resulted from the
defendant’s pharmaceutical products did not occur in
the forum state. See Bristol-Myers Squibb Co. v. Supe-
rior Court, supra, 1781–83. The trial court in the present
case, apparently under the belief that the same analysis
applies in contract cases, proceeded on the assumption
that the only jurisdictionally relevant fact was that the
alleged contractual breach—B&M’s decision to rebrand
its products with an in-house trademark rather than
the North Marks, without adequate warning to North
Sails—transpired in Europe and not Connecticut. The
trial court readily acknowledged that B&M benefitted
from its ongoing dealings with a Connecticut company,
that B&M had many mail, telephone, and electronic
communications and one in-person contact with North
Sails in Connecticut over the parties’ eighteen year rela-
tionship, that North Sails suffered harm from the alleged
breach in Connecticut, that B&M’s attorneys contacted
North Sails in Connecticut regarding the alleged breach
(prior to litigation), and that some of the branded prod-
ucts at issue were sold in Connecticut. But, in light of
Bristol-Myers Squibb Co., the court mistakenly con-
cluded that all of those contacts were irrelevant to the
constitutional analysis.
I agree with the majority that Bristol-Myers Squibb
Co. does not govern the present case. Rather, in a breach
of contract action brought against a foreign defendant,
as long as the cause of action either ‘‘arise[s] out of or
relate[s] to’’ a contractual relationship that establishes
sufficient minimum contacts with the forum state, the
minimum contacts prong of the due process analysis
is satisfied. (Internal quotation marks omitted.) Middle-
ton v. Green Cycle Housing, LLC, 689 Fed. Appx. 12,
13 (2d Cir. 2017); see also Ford Motor Co. v. Montana
Eighth Judicial District Court, U.S. , 141 S. Ct.
1017, 1026, 209 L. Ed. 2d 225 (2021) (cause of action
need only relate to defendant’s minimum contacts with
forum state).5 Indeed, it is black letter law that minimum
contacts sufficient for personal jurisdiction to attach
may be established by the conduct of the parties during
the contract negotiation process, by the terms of the
contract itself, and by the parties’ contemplated future
consequences and actual course of dealing over the
course of the contractual relationship. See Burger King
Corp. v. Rudzewicz, supra, 471 U.S. 479. Where the
alleged breach of contract took place is, therefore, only
one of many factors to be considered as part of the
totality of the circumstances.6 See, e.g., General Electric
Co. v. Deutz AG, supra, 270 F.3d 150–51; Max Ten Mar-
keting, LLC v. Marketech, Inc., Docket No. 11-1823
(RMB/AMD), 2012 WL 12898795, *2 (D.N.J. December
12, 2012). As I shall discuss, the failure of the majority
to consider on appeal the entire trial record is especially
concerning because the trial court failed to conduct
its analysis of the record under the correct minimum
contacts standard.
Fourth, as I noted, the United States Supreme Court’s
personal jurisdiction cases require us to consider the
totality of the defendant’s relevant contacts with Con-
necticut and to view them in the light most favorable
to the party asserting jurisdiction. See, e.g., Eades v.
Kennedy, PC Law Offices, 799 F.3d 161, 169 (2d Cir.
2015). Although the majority insists that it conducts a
proper totality of the circumstances analysis, I find that,
in virtually each step in its analysis, the majority mini-
mizes the contacts at issue by contending or citing
authorities stating that this or that factor, taken alone
or by itself, does not necessarily suffice to confer juris-
diction. We see this, for example, in (1) the majority’s
consideration of the fact that Marchand, B&M’s chief
executive officer, personally visited North Sails in Con-
necticut in 2003, (2) the majority’s treatment of various
provisions of the parties’ contract that allowed North
Sails to exercise oversight of B&M from Connecticut,
to request that product samples be sent to Connecticut
for review, and to regularly receive and review B&M’s
financial statements and royalty reports in Connecticut,
and (3) with respect to B&M’s hundreds of electronic
and telephonic communications with North Sails in
Connecticut. North Sails is not contending that any
individual contact, standing alone, establishes jurisdic-
tion. North Sails simply asks this court to follow the
well established law and assess all of B&M’s contacts
with Connecticut in their totality. Indeed, the federal
courts of appeals routinely have rejected the approach
taken by the majority, which discounts each individual
contact as less than the sum of the parts. See, e.g.,
Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553,
561 (4th Cir. 2014) (holding that District Court erred in
viewing each of defendant’s contacts with forum ‘‘in
isolation from the totality of the facts before the court
[rather than] considered as a whole’’), cert. denied, 576
U.S. 1035, 135 S. Ct. 2860, 192 L. Ed. 2d 896 (2015);
Chloé v. Queen Bee of Beverly Hills, LLC, 616 F.3d
158, 164 (2d Cir. 2010) (court must consider totality
of defendant’s contacts rather than look at factors in
isolation); Mid-America Tablewares, Inc. v. Mogi Trad-
ing Co., Ltd., 100 F.3d 1353, 1361 (7th Cir. 1996) (‘‘by
discussing its contacts with Wisconsin in isolation and
suggesting that none alone establishes the requisite min-
imum contacts, [the defendant] fails to appreciate that
the minimum contacts inquiry is one that examines the
totality of the circumstances’’); Northrup King Co. v.
Compania Productora Semillas Algodoneras Selectas,
S.A., 51 F.3d 1383, 1388 (8th Cir. 1995) (‘‘[The defen-
dant] wrongly attempts to treat each category of [the]
numerous and significant communications separately.
. . . In determining whether there is personal jurisdic-
tion, the courts consider the defendant’s contacts with
the forum in the aggregate, not individually; they look at
the totality of the circumstances.’’ (Citations omitted.)).
The remainder of this opinion explains why B&M’s vari-
ous contacts with Connecticut—taken together, viewed
under the applicable prima facie standard, and consid-
ered in light of the relevant case law—were more than
enough to subject it to jurisdiction in our state courts.
II
The first and most fundamental flaw in the majority’s
analysis is that it fails to give any weight at all to the
fact that the parties were engaged in a decades long
business partnership rather than a single product sale or
some one-off contractual arrangement. Both the United
States Supreme Court and sister courts have made clear
that jurisdiction is proper under circumstances such
as these.
A
The United States Supreme Court set forth the gov-
erning rule very clearly in Burger King Corp. v. Rud-
zewicz, supra, 471 U.S. 462, the leading case on the
subject of personal jurisdiction when there is a direct
contractual relationship between the parties: ‘‘[W]ith
respect to interstate contractual obligations, we have
emphasized that parties who reach out beyond one state
and create continuing relationships and obligations
with citizens of another state are subject to regulation
and sanctions in the other [s]tate for the consequences
of their activities.’’ (Internal quotation marks omitted.)
Id., 473. The court evidently thought this principle
important enough that the court reiterated—indeed,
amplified—it just a few pages later in the decision:
‘‘[When] the defendant deliberately has engaged in sig-
nificant activities within a [s]tate . . . or has created
continuing obligations between [itself] and residents of
the forum . . . [it] manifestly has availed [itself] of the
privilege of conducting business there, and because [its]
activities are shielded by the benefits and protections
of the forum’s laws it is presumptively not unreasonable
to require [it] to submit to the burdens of litigation in
that forum as well.’’ (Citations omitted; internal quota-
tion marks omitted.) Id., 475–76. Put differently, by
knowingly entering into a long-term contractual rela-
tionship that contemplates and entails an ongoing course
of dealing of substantial commercial importance to both
parties, implicating rights, obligations, communications,
and consequences flowing into and out of Connecticut,
all of which are integral to contractual performance, a
foreign corporation subjects itself to regulation and sanc-
tions in this state for its contract related activities. See
id., 479.
One would think that this would be the end of the
story. The simple reality is that B&M entered into a
contractual relationship that undisputedly created
‘‘continuing obligations’’ between itself and a forum
resident and, therefore, according to the United States
Supreme Court, ‘‘presumptively’’ subjected itself to
jurisdiction in Connecticut. (Internal quotation marks
omitted.) Id., 476. The contractual relationship between
these particular parties, moreover, was not merely exec-
utory or prospective in nature; the parties actively per-
formed their reciprocal and mutual obligations without
interruption for eighteen consecutive years.7
The majority rejects this reading of Burger King.
Rather than take the cited passages at face value, the
majority focuses on other language in Burger King,
first, the court’s statement regarding the so-called
‘‘ ‘purposeful availment’ ’’ requirement; id., 475; and,
second, a footnote that addresses some concerns
unique to the retail franchise context. I consider each
passage in turn.
1
The majority emphasizes—indeed, its entire argu-
ment hangs on—the following language in Burger King:
‘‘ ‘The unilateral activity of those who claim some rela-
tionship with a nonresident defendant cannot satisfy
the requirement of contact with the forum [s]tate. The
application of that rule will vary with the quality and
nature of the defendant’s activity, but it is essential in
each case that there be some act by which the defendant
purposefully avails itself of the privilege of conducting
activities within the forum [s]tate, thus invoking the
benefits and protections of its laws.’ ’’ Id., 474–75.
Another version of this language, which traces its ori-
gins to Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct.
1228, 2 L. Ed. 2d 1283 (1958), appears in a more recent
United States Supreme Court case, Walden v. Fiore,
571 U.S. 277, 134 S. Ct. 1115, 188 L. Ed. 2d 12 (2014):
‘‘[T]he relationship must arise out of contacts that the
defendant himself creates with the forum [s]tate. . . .
We have consistently rejected attempts to satisfy the
defendant-focused minimum contacts inquiry by dem-
onstrating contacts between the plaintiff (or third par-
ties) and the forum [s]tate. . . . [The] unilateral activ-
ity of another party or a third person is not an appropriate
consideration when determining whether a defendant
has sufficient contacts with a forum [s]tate to justify
an assertion of jurisdiction . . . .’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Id., 284.
The majority interprets this language to essentially
read North Sails’ location, and its activities at that loca-
tion, out of the minimum contacts equation. In the
majority’s view, the fact that North Sails resides and
conducts its affairs in the forum state is irrelevant, as
are all of North Sails’ activities undertaken in perfor-
mance of its contractual obligations. If that were not
enough, the majority also believes that even B&M’s own
interactions with North Sails in the forum state are
‘‘ancillary or incidental’’ and, thus, largely irrelevant if
they result only from the ‘‘fortuitous’’ fact that North
Sails made a ‘‘unilateral’’ choice to reside in that state.
See part I B of the majority opinion. The majority thus
dismisses out of hand most of B&M’s many contacts
with Connecticut because ‘‘the contract did not envision
that B&M would deliberately engage in activity in Con-
necticut or have continuous obligations with Connecti-
cut. Any link to Connecticut was merely because [North
Sails was located there], which was a matter of happen-
stance that could have changed at any time.’’ Id.
I strongly disagree with the majority’s view that
Burger King and Walden support its theory that North
Sails—its location and activities in the forum state—is
irrelevant and that jurisdiction cannot attach unless
B&M itself opts to engage with Connecticut qua Con-
necticut. There are at least four reasons why the majori-
ty’s reading of Burger King and Walden is untenable.
a
First, as I noted, the plain language of Burger King,
the leading case on the subject, flatly contradicts the
majority’s construction. Burger King holds, in broad,
clear, and unequivocal terms, that creating continuing
contractual obligations with a forum resident subjects
a foreign defendant to jurisdiction in the forum. As I
discuss more fully hereinafter, countless federal and
sister state decisions have taken this prominent lan-
guage at face value, reading Burger King to mean that
knowingly entering into a long-term contractual rela-
tionship with a forum resident presumptively gives rise
to the minimum contacts necessary for jurisdiction to
attach. See footnote 12 of this opinion. We should be
able to agree that an argument is fatally flawed if it
fails to account for the most prominent language used
by the United States Supreme Court to summarize the
holding of the leading case on the subject.8
b
Second, the majority misinterprets the language in
Burger King and Walden indicating that the defendant’s
minimum contacts with the forum state must arise from
its own intentional conduct rather than from the plain-
tiff’s unilateral connections to the forum. The majority
construes this language without analyzing its contextual
meaning or harmonizing it with Burger King’s very
clear holding about the presumptive jurisdiction cre-
ated by contract based continuing obligations.
Burger King invokes the purposeful availment con-
cept in the course of explaining ‘‘when it is that a poten-
tial defendant should ‘reasonably anticipate’ out-of-
state litigation . . . .’’ Burger King Corp. v. Rudzew-
icz, supra, 471 U.S. 474. The court elaborated: ‘‘The
unilateral activity of those who claim some relationship
with a nonresident defendant cannot satisfy the require-
ment of contact with the forum [s]tate. The application
of that rule will vary with the quality and nature of the
defendant’s activity, but it is essential in each case that
there be some act by which the defendant purposefully
avails itself of the privilege of conducting activities
within the forum [s]tate, thus invoking the benefits and
protections of its laws.’’ (Internal quotation marks omit-
ted.) Id., 474–75. The very next sentence in Burger King
reiterates that the exercise of jurisdiction, to be predict-
able and fair, must not emanate from contacts that the
defendant does not intend or control: ‘‘This purposeful
availment requirement ensures that a defendant will
not be haled into a jurisdiction solely as a result of
random, fortuitous, or attenuated contacts . . . or of
the unilateral activity of another party or a third person
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Id., 475.
This uncontroversial observation hardly erects a sig-
nificant jurisdictional barrier in a case like the present
one, in which the mutuality of the contractual relation-
ship stands in stark contrast to the kind of unilateral
activity of another party that Burger King says will
not create the necessary minimum contacts. When the
United States Supreme Court has discussed what it
means by ‘‘random, fortuitous, or attenuated contacts,’’
it has held up as exemplars cases such as World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 288, 100
S. Ct. 559, 62 L. Ed. 2d 490 (1980), in which a car sold
in New York by a New York dealership to New York
residents happened to be involved in an accident while
passing through Oklahoma, and Walden v. Fiore, supra,571 U.S. 279–80, in which a Georgia police officer
wrongly confiscated funds at an Atlanta airport from
travelers who happened to be en route to Nevada. In
each case, there was absolutely nothing in the conduct
of the defendants or the nature of the transactions that
reflected a voluntary choice to engage in activities
occurring in the forum state or that made it likely that
the defendants would be haled into court in Oklahoma
or Nevada, respectively. By contrast, in those cases in
which a defendant knowingly entered into a long-term
relationship with a forum resident, the high court has
found that specific jurisdiction attached, even when the
defendant’s contacts with the forum state were limited
to that one relationship and even when they fully
depended on the fact that the plaintiff happened to
reside in the forum. See, e.g., Burger King Corp. v.
Rudzewicz, supra, 471 U.S. 474; see also McGee v. Inter-
national Life Ins. Co., 355 U.S. 220, 222, 78 S. Ct. 199,
2 L. Ed. 2d 223 (1957) (defendant insurer’s only contact
with forum state was having assumed insurance con-
tract with plaintiff, a California resident).9
The federal courts have understood that Burger
King’s ‘‘random, fortuitous, or attenuated’’ language
simply recognizes that a defendant may provide or
receive a product, service, or payment under circum-
stances that do not create the kind of ‘‘continuing [con-
tractual] relationships and obligations with citizens of
another state’’ that Burger King instructs will serve as
the basis for personal jurisdiction. (Internal quotation
marks omitted.) Burger King Corp. v. Rudzewicz,
supra, 471 U.S. 473, 475. The limitation has been applied,
for example, with respect to transactions involving a
onetime product sale or short-term service contract to
be performed entirely outside of the forum state; see,
e.g., Wilkerson, Tate & Williams, LLC v. Bouza, Docket
No. 97-31259, 1998 WL 857883, *1–2 (5th Cir. November
18, 1998) (decision without published opinion, 163 F.3d
1356); Chung v. NANA Development Corp., 783 F.2d
1124, 1125–26 (4th Cir.), cert. denied, 479 U.S. 948, 107
S. Ct. 431, 93 L. Ed. 2d 381 (1986); or when a plaintiff
unilaterally relocates to the forum state after having
entered into a contract with the defendant. See, e.g.,
Rambo v. American Southern Ins. Co., 839 F.2d 1415,
1420–21 (10th Cir. 1988); Tidy Car International, Inc.
v. Firestine, 810 F. Supp. 199, 201, 205 (E.D. Mich.
1993). Those are the sorts of unilateral, ancillary con-
nections with the forum state that the United States
Supreme Court has indicated are insufficient to confer
jurisdiction because they arise solely from the fact that
the plaintiff happens to be a forum resident.
By contrast, more substantial contractual relation-
ships are not unilateral in nature, which is why Burger
King emphasizes that, by entering into a contractual
relationship entailing mutual obligations, ‘‘it is pre-
sumptively not unreasonable to require [the defendant]
to submit to the burdens of litigation in that forum as
well.’’ Burger King Corp. v. Rudzewicz, supra, 471 U.S.
476. When a commercial entity knowingly and volunta-
rily chooses to become business partners with a resident
of a state, and follows through by engaging in a long-
term relationship, it necessarily accepts a connection
with the state itself—its laws, economy, transportation
and communication infrastructure, and other resi-
dents—in all sorts of ways, both predictable and unex-
pected, such that it should reasonably anticipate the
possibility that a contract related dispute may be adjudi-
cated by that state’s courts.
Walden warrants further attention in this regard
because it plays such a prominent role in the majority’s
analysis. The majority cites Walden no fewer than ten
times for the proposition that the defendant’s knowl-
edge that the plaintiff will perform its contractual obli-
gations or suffer injury in the forum is irrelevant in
assessing minimum contacts because it is only the
defendant’s contacts with the forum state that are con-
stitutionally relevant. Walden is a constitutional tort
case, not a contract case, and the only contact with
the forum state of Nevada was that the defendant had
allegedly confiscated funds at an Atlanta airport from
travelers who were en route from Puerto Rico to Las
Vegas. See Walden v. Fiore, supra, 571 U.S. 279–80.
Although the defendant police officer may have been
aware that the plaintiffs happened to be Nevada resi-
dents, that mere knowledge, standing alone, did not
bespeak a voluntary choice to engage with Nevada, any
more than he chose to engage with any of the other
states when he interacted with residents of those states
as they passed through Atlanta. Indeed, just this year,
the United States Supreme Court emphasized that juris-
diction was lacking in Walden because the defendant
‘‘had never traveled to, conducted activities within, con-
tacted anyone in, or sent anything or anyone to Nevada’’;
(internal quotation marks omitted) Ford Motor Co. v.
Montana Eighth Judicial District Court, supra, 141 S.
Ct. 1031; all contacts that B&M did have with Connecti-
cut in the present case.
The United States Supreme Court has never applied
the cited language, or the underlying principle, to bar
jurisdiction in a contract case like this one, and the
majority’s heavy reliance on Walden exposes the central
flaw in its argument. The issue is not, as the majority
contends, whether B&M’s contacts with Connecticut
flow largely10 from the fact that North Sails is a Connect-
icut resident. In the context of the present case, there
was never anything fortuitous about B&M’s contact
with Connecticut. B&M affirmatively chose to enter into
a long-term partnership with a Connecticut resident. It
knew from the outset that North Sails would perform its
contractual obligations in Connecticut and that B&M
might at any time be required to do so as well.11 B&M’s
chief executive officer deliberately visited Connecticut
for a business meeting with North Sails in 2003, and,
as the years passed, B&M well knew that Connecticut
would serve as the source of and destination for count-
less substantive communications critical to some aspect
of contractual performance. B&M knew that it would
enjoy the protections of Connecticut’s laws in connec-
tion with everything that made contractual performance
possible, and, not insignificantly given its volume of
business, B&M knew that a successful contractual rela-
tionship would redound to the economic benefit of Con-
necticut, whereas the adverse impacts of any breach
would be felt here. These contacts are deliberate, pur-
poseful and substantial, not random, fortuitous, and
attenuated, and jurisdiction over B&M is therefore
proper in Connecticut.
c
Third, the majority fails to consider the underlying
principles that animate the United States Supreme
Court’s personal jurisdiction jurisprudence. The pri-
mary concern motivating the high court’s personal juris-
diction case law—an offshoot of its due process juris-
prudence—is that the defendant have ‘‘fair warning’’
and that the rules ‘‘[give] a degree of predictability to
the legal system that allows potential defendants to
structure their primary conduct with some minimum
assurance as to where that conduct will and will not
render them liable to suit . . . .’’ (Citation omitted;
internal quotation marks omitted.) Burger King Corp.
v. Rudzewicz, supra, 471 U.S. 472; see also Ford Motor
Co. v. Montana Eighth Judicial District Court, supra,
141 S. Ct. 1030 (emphasizing importance that defendant
have ‘‘predictable,’’ ‘‘clear notice’’ that it will be subject
to jurisdiction in forum (internal quotation marks omit-
ted)). The defendant in Walden lacked any such notice.
Exercising jurisdiction in a case such as the present
one, by contrast, is eminently foreseeable to the out-
of-state party, insofar as (1) a long-term business rela-
tionship typically will entail various contacts and com-
munications, both physical and electronic, with resi-
dents of the forum state; see parts III A and B of this
opinion; (2) in most instances the forum resident can
be expected to fulfill some or all of its contractual
obligations, reap the financial benefits of the relation-
ship, and suffer any contract related damages in the
forum state; see part III C of this opinion; and (3) a
forum resident reasonably can be expected to seek to
vindicate its rights in the most convenient and familiar
forum. See, e.g., Ford Motor Co. v. Montana Eighth
Judicial District Court, supra, 1031 (plaintiffs’ home
state, where injuries were suffered, is ‘‘the most natural
[s]tate’’ in which to bring action); D. Kelly & C. Hieber,
‘‘Untangling a Web of Minimum Contacts: The Internet
and Personal Jurisdiction in Trademark and Unfair
Competition Cases,’’ 87 Trademark Rep. 526, 526 (1997)
(‘‘a plaintiff typically desires to sue in its home state’’).
Along with predictability, the other primary values
driving the United States Supreme Court’s personal
jurisdiction jurisprudence are the principles of fairness
(i.e., voluntariness) and interstate federalism, that is,
that the state most directly impacted by an alleged
wrong should be able to provide a convenient forum
for redressing the injury. See, e.g., Ford Motor Co. v.
Montana Eighth Judicial District Court, supra, 141 S.
Ct. 1031. The exercise of personal jurisdiction over B&M
in Connecticut under these circumstances not only is
foreseeable, it is also fair. It satisfies the purposeful
availment requirement of International Shoe and its
progeny, insofar as anyone who knowingly and deliber-
ately engages in continuous and robust business deal-
ings with a Connecticut resident over the course of
almost two decades benefits in various ways from the
protections of our state’s laws. See Burger King Corp.
v. Rudzewicz, supra, 471 U.S. 475–76; see also part III
D of this opinion (discussing benefits enjoyed by B&M
by virtue of its dealings with North Sails); Vance’s
Foods, Inc. v. Special Diets Europe Ltd., Docket No.
2:11-cv-02943-MCE-GGH, 2012 WL 1353898, *3 (E.D.
Cal. April 16, 2012) (‘‘[t]he requirement of purposeful
availment is based on the presumption that it is reason-
able to require a defendant who conducts business and
benefits from his activities in a state to be subject to
the burden of litigating in that state as well’’ (internal
quotation marks omitted)).
It is very difficult for me to see how resolving the case
in Connecticut is unfair to B&M, a major international
corporation with a strong presence in the United States,
and, indeed, a company that according to its own web-
site has built its core business on the back of a long-
term partnership with a Connecticut resident. In light
of the cases I cite in this opinion, B&M should reason-
ably have anticipated (I would say fully expect) that
North Sails would seek to hale it into court in Connecti-
cut in the event of a contractual breach. The majority
has failed to identify any other state in which jurisdic-
tion would be more appropriate; nor has it explained
why a major international retailer, the business model
of which depends on the use of a license situated in
Connecticut, should be able to fully evade jurisdiction
in the United States. B&M had every opportunity to
structure its affairs to avoid being sued in Connecticut,
if that was its desire, and it failed to do so. See Ford
Motor Co. v. Montana Eighth Judicial District Court,
supra, 141 S. Ct. 1025; World-Wide Volkswagen Corp.
v. Woodson, supra, 444 U.S. 297; Illinois v. Hemi Group,
LLC, 622 F.3d 754, 758 (7th Cir. 2010). Due process
would not be offended by calling B&M to account in
Connecticut for its alleged misconduct under its con-
tract.
d
Fourth, the vast majority of federal and sister state
courts have rejected the majority’s unconventional,
overly restrictive reading of Burger King for precisely
the reasons that I have discussed. Indeed, countless
cases have expressly held that, although it is the defen-
dant’s own contacts with the forum state and not those
of the plaintiff that are relevant to the minimum con-
tacts calculus, a defendant’s voluntary choice to enter
into a long-term relationship with a forum resident is
just the sort of direct contact that creates continuing
obligations and constitutes purposeful availment of the
forum state’s laws and protections under Burger King.12
In part II C of this opinion, I discuss several of these
cases in greater detail and explain why the primary
case on which the majority relies, Calphalon Corp. v.
Rowlette, 228 F.3d 718 (6th Cir. 2000), is unpersuasive.
It is deeply unfortunate, in my view, that we have chosen
to travel a path that locates Connecticut well outside
of mainstream jurisprudence in this important area of
the law.
2
The majority also contends that Burger King sup-
ports its due process analysis because, in footnote 28
of that opinion, the court cautioned that not every fran-
chise relationship necessarily confers jurisdiction on
the franchisee in the franchisor’s home state. See
Burger King Corp. v. Rudzewicz, supra, 471 U.S. 485n.28. The majority interprets this ‘‘critical footnote’’;
part I A of the majority opinion; to mean that my position
is flawed because, if even franchise relationships do not
necessarily give rise to the types of minimum contacts
necessary for jurisdiction to attach, then, surely, run-
of-the-mill contractual relationships such as the one
between North Sails and B&M fall short. The majority
misses the point of footnote 28.
A big part of the battle in Burger King involved the
David and Goliath aspect of some franchise relation-
ships. The footnote appears in the part of Burger King
where the majority addresses the argument by the
defendant franchisee, and by Justice Stevens in dissent,
that it may at times be unjust to force a franchisee to
defend a lawsuit in the franchisor’s home state because,
first, the franchisee may fall victim to unfair play by the
franchisor, including misrepresentation, fraud, duress,
and contracts of adhesion; see Burger King Corp. v.
Rudzewicz, supra, 471 U.S. 484, 486; and, second, the
franchisee’s relationship may be limited to communica-
tions in its home state with the franchisor’s local repre-
sentative, such that the franchisee does not reasonably
anticipate being haled into court by the distant parent
company.13 See id., 480–85, 487–88. The court in Burger
King, both in footnote 28 and in the accompanying
text, merely acknowledges the unremarkable point that
under such circumstances—‘‘unfair business practices’’
in the inception or a ‘‘primarily intrastate’’ franchise
relationship in which the out-of-state parent company
is not an active participant—jurisdiction would not nec-
essarily attach. Id., 485 and n.28. Footnote 28 has abso-
lutely nothing to do with the present case. It cannot be
invoked in support of the majority’s theory that, when
a foreign company freely and knowingly forms an ongo-
ing, unmediated business relationship directly with a
forum resident, and in the absence of any suggestion
that the parties’ contract was born of fraud or duress,
the foreign company has not created the sorts of contin-
uing obligations that Burger King repeatedly says are
sufficient to satisfy due process.
B
Part II A of this opinion explains why the language
and reasoning of Burger King will not abide the restric-
tive reading that the majority seeks to impose on it. I
now turn to the majority’s effort to blunt the force of
Burger King by distinguishing that case on its facts. In
particular, the majority attempts to distinguish Burger
King on the grounds that (1) Burger King involved a
highly regulated franchise license that was more elabo-
rate than the relationship at issue in the present case,
and (2) the franchise agreement at issue in Burger King
had a fixed, twenty year term, whereas the contract at
issue in the present case had been renewed annually
over the course of eighteen years but did not dictate
or anticipate that the relationship between the parties
would endure for some specific period of time. Neither
point withstands scrutiny.
With respect to the first point, I agree that the franchi-
sor in Burger King exercised more control over the
franchisee’s business operations than North Sails exer-
cised, or was contractually authorized to exercise, over
B&M. That is the nature of franchise relationships, and
it happened to be the contractual relationship under
review in Burger King. But the United States Supreme
Court never indicated that the degree of extensive
supervision inherent in a franchise relationship is neces-
sary for personal jurisdiction to attach in the context
of a long-term contractual relationship, only that it was
sufficient under the unique facts of that case. Indeed,
Burger King ‘‘emphasized the need for a highly realistic
approach that recognizes that a contract is ordinarily
but an intermediate step serving to tie up prior business
negotiations with future consequences which them-
selves are the real object of the business transaction,’’
and that it is the ‘‘quality and nature’’ of the ensuing
relationship that will justify calling the defendant to
account in the forum state. (Internal quotation marks
omitted.) Id., 479–80. As I discuss more fully in part II C
and footnote 12 of this opinion, numerous sister courts
have made it clear that the types and degree of ongoing
interactions with a forum state resident that character-
ize the present case are more than enough to invoke
personal jurisdiction under Burger King. As one court
has explained, ‘‘the rationale behind Burger King is not
limited to disputes surrounding franchise agreements.
Rather, Burger King stands for the principle that a
single contract can produce continuing and [wide reach-
ing] contacts that cross the [purposeful availment]
threshold even though a single, isolated contract for a
sale of goods in a foreign jurisdiction remains too ran-
dom, fortuitous, or attenuated to confer jurisdiction.’’
(Internal quotation marks omitted.) Smart Call, LLC v.
Genio Mobile, 349 S.W.3d 755, 763 (Tex. App. 2011);
see also ICEE Distributors, Inc. v. J&J Snack Foods
Corp., 325 F.3d 586, 592 (5th Cir. 2003) (holding that
jurisdiction was proper under Burger King in case in
which licensor’s control over licensees was far less than
that in Burger King).
With respect to the second distinction offered by
the majority, it is of no constitutional significance that
Burger King involved a fixed, twenty year contract,
rather than a continuous, two decade contractual rela-
tionship subject to periodic voluntary renewal. The rele-
vant consideration is not whether two parties commit
to doing business together for a specified lengthy period
of time or actually do business together for a lengthy
period of time. What is important, both practically and
legally, is that the defendant knowingly and purpose-
fully engages in a long-term business relationship with
a resident of the forum state, such that it (1) anticipates
visiting the state on occasion for business purposes,
(2) knows that its contracting partner’s performance
of contractual obligations will occur in that state, (3)
engages in frequent and ongoing exchanges of substan-
tive and meaningful business phone calls, faxes, and
mailings into and out of that state, (4) acknowledges
the need, on demand, to deliver products and marketing
materials to that state for quality control inspection,
(5) acknowledges the need, on demand, to cooperate
with the contracting party in third-party litigation in
that state, (6) enjoys the protection and benefits of that
state’s laws and other public services if the need arises,
and (7) has a substantial impact on the state’s economy
and its residents, whether positive (should the contrac-
tual relationship flourish) or negative (should the for-
eign corporation breach the contract). See, e.g., Crete
Carrier Corp. v. Red Food Stores, Inc., 254 Neb. 323,
325, 331–32, 576 N.W.2d 760 (1998) (finding sufficient
minimum contacts under Burger King when parties
had engaged for five years in open-ended contractual
relationship that would continue in force until cancelled);
McKesson Corp. v. Hackensack Medical Imaging, 197
N.J. 262, 278, 962 A.2d 1076 (2009) (concluding that
potential for long-term relationship was sufficient to
establish jurisdiction when defendant made nine pur-
chases from plaintiff and opened credit line).
In the present case, B&M voluntarily and affirma-
tively chose in 2000 to renew a licensing partnership
that already had been in place for one decade, signed
a contract that automatically renewed each year unless
certain specified events occurred, and proceeded over
the course of eighteen years to build its market leading,
global product line in significant part around the North
Marks. There can be little doubt under these circum-
stances that B&M anticipated a long-term relationship
with North Sails, of undefined but substantial duration,
which is exactly what transpired. On these facts, per-
sonal jurisdiction in Connecticut clearly exists under
Burger King.
C
Burger King remains the leading precedent in this
field, but there are many other personal jurisdiction
cases involving long-term contractual relationships.
The cases relied on by the majority, in my estimation,
are not factually apposite. By contrast, I have identified
numerous cases, largely overlooked by the majority, in
which personal jurisdiction was held to exist in compa-
rable circumstances—indeed, when a defendant had less
extensive contacts with the forum state than B&M has
in the present action.14
For example, in Cole v. Mileti, 133 F.3d 433 (6th Cir.),
cert. denied, 525 U.S. 810, 119 S. Ct. 42, 142 L. Ed. 2d
32 (1998), the plaintiff, an Ohio resident, brought suit
in federal court in Ohio to enforce a security agreement
against the defendant, a California resident. See id., 435.
The defendant’s contract related contacts with Ohio
were extremely limited—the contract itself and a hand-
ful of letters and telephone calls—and the parties
agreed that California law would govern the agreement.
See id. The District Court found that jurisdiction was
proper, and the United States Court of Appeals for the
Sixth Circuit affirmed. Id., 435, 438. Applying Burger
King, the court held that, when ‘‘a nonresident defen-
dant transacts business by negotiating and executing
a contract via telephone calls and letters to an Ohio
resident, then the defendant has purposefully availed
himself of the forum by creating a continuing obligation
in Ohio.’’ Id., 436.
Similarly, in Grand Entertainment Group, Ltd. v.
Star Media Sales, Inc., 988 F.2d 476 (3d Cir. 1993), the
plaintiff brought suit in federal court in Pennsylvania,
alleging that the defendants, Spanish citizens, had
breached a contract over the rights to distribute various
foreign films in North America. See id., 478. The United
States Court of Appeals for the Third Circuit affirmed
the District Court’s ruling that jurisdiction over the
defendants in Pennsylvania was proper, notwithstand-
ing that the plaintiff had initiated the parties’ relation-
ship and the defendants never once visited Pennsylva-
nia. See id., 479–80. Also applying Burger King, the
Court of Appeals reasoned that the defendants’ forma-
tion of a contract that contemplated significant ties
with forum residents, in tandem with at least twelve
communications into the forum, constituted sufficient
minimum contacts to satisfy due process. See id., 482–
84.
In Crete Carrier Corp. v. Red Food Stores, Inc., supra,
254 Neb. 323, the Supreme Court of Nebraska likewise
concluded that ‘‘numerous telephone and mail commu-
nications made pursuant to an ongoing and long-term
contract [were] sufficient to establish personal jurisdic-
tion.’’ Id., 324. In that case, the parties had been engaged
for five years in an open-ended contract; the record did
not disclose which party had initiated the relationship.
See id., 324–25. Nevertheless, the court concluded that
the parties’ ongoing contractual relationship and the
regular communications that ensued were sufficient to
confer jurisdiction over the defendant. See id., 331–32.
In fact, the majority itself relies on a case, Benton v.
Cameco Corp., 375 F.3d 1070, 1077 (10th Cir. 2004),
cert. denied, 544 U.S. 974, 125 S. Ct. 1826, 161 L. Ed.
2d 723 (2005), in which the United States Court of
Appeals for the Tenth Circuit, relying on Burger King,
held that there were sufficient minimum contacts, on
facts that were substantially similar to—indeed, rather
more sparse than—those in the present case. The Court
of Appeals held that the interactions of the Canadian
defendant with the plaintiff, a Colorado resident, had
created sufficient minimum contacts with Colorado to
satisfy due process, because (1) the parties had been
doing business—trading uranium supply contracts—
for eight years and envisioned a continuing business
relationship, (2) the plaintiff would fulfill his end of any
financial transactions from Colorado, (3) the parties
exchanged telephone calls and letters to and from Colo-
rado during the negotiations, and (4) the defendant
sent several of its employees to Colorado, on a single
occasion, to conduct the due diligence review required
by the agreement. See id., 1073, 1077–80. Ultimately,
the Court of Appeals concluded that, because ‘‘[the
defendant] voluntarily conducted business with [the
plaintiff], whom [the defendant] knew to be located in
Colorado for many years prior to and at the time of the
events at issue,’’ and ‘‘engag[ed] in a business relation-
ship with [a person] . . . who operates his business
from Colorado, [the defendant] purposefully avail[ed]
itself of the privilege of conducting activities within the
forum [s]tate, thus invoking the benefits and protec-
tions of its laws.’’ (Internal quotation marks omitted.)
Id., 1077–78.15 Again, the court reached this conclusion
even though the defendant’s only link with Colorado
was what the majority would characterize as the ‘‘fortu-
itous’’ fact that the plaintiff happened to reside there
and conduct his business and communications from
there.
In each of these cases, the court relied on the fact
that the defendant had entered voluntarily into a long-
term contractual relationship, knowing that the plaintiff
was located in the forum state and, therefore, that the
defendant reasonably could expect that the plaintiff
would seek to vindicate its rights in its home forum
should the defendant breach the contract. There are
numerous other cases in which sister courts have indi-
cated that, by knowingly entering into a long-term con-
tractual relationship with a forum resident, a foreign
defendant purposefully avails itself of the protections
of the forum state and is on notice that it may be haled
into court there should it breach that contract. See
footnote 12 of this opinion.
Of course, the personal jurisdiction analysis is heavily
fact dependent, and every case is unique. Each case
can, no doubt, be distinguished along one parameter or
another. Taken together, however, the foregoing cases
demonstrate that a long-term contractual relationship,
in tandem with ongoing mail and telephone communica-
tions into the forum state and, perhaps, some minimal
additional form of contact, such as a personal visit by
the defendant or a right of inspection in the forum state,
is sufficient to satisfy the International Shoe standard.
Indeed, just this year, in its most recent personal juris-
diction decision, the United States Supreme Court con-
firmed that this is the correct interpretation of Burger
King. ‘‘Specific jurisdiction is different: It covers defen-
dants less intimately connected with a [s]tate, but only
as to a narrower class of claims. The contacts needed
for this kind of jurisdiction often go by the name pur-
poseful availment. Burger King Corp. v. Rudzewicz,
[supra, 471 U.S. 475]. The defendant . . . must take
some act by which [it] purposefully avails itself of the
privilege of conducting activities within the forum
[s]tate. . . . The contacts must be the defendant’s own
choice and not random, isolated, or fortuitous. . . .
They must show that the defendant deliberately reached
out beyond its home—by, for example . . . entering
a contractual relationship centered there.’’ (Citations
omitted; internal quotation marks omitted.) Ford Motor
Co. v. Montana Eighth Judicial District Court, supra,
141 S. Ct. 1024–25.
In support of its claim that even cultivating a long-
term, multifaceted relationship with a forum resident
is not enough to confer jurisdiction unless the defendant
expresses some independent interest in engaging with
that forum in particular, the majority repeatedly cites
Calphalon Corp. v. Rowlette, supra, 228 F.3d 718. Cal-
phalon Corp. is a split decision of the United States
Court of Appeals for the Sixth Circuit. In that case,
Judge William C. Hillman begins his thorough and inci-
sive dissenting opinion with the following observation,
which I believe is applicable to the present case: ‘‘In
its opinion, the majority goes to great lengths to mini-
mize the [nearly two decade] continuing business rela-
tionship between these parties and to broaden the
notion of fortuitous contacts so as to expand the con-
cept beyond all recognition. While citing the relevant
controlling language from the cases, the majority dis-
torts and distinguishes the facts of this case in ways
that render those controlling decisions meaningless. In
the end, the instant decision is almost unrecognizable
under modern notions of personal jurisdiction . . . .’’
(Internal quotation marks omitted.) Id., 724 (Hillman,
J., dissenting).
III
In part II of this opinion, I explained how, under
Burger King and its progeny, sufficient minimum con-
tacts are established when a nonresident party engages
in a long-term business relationship involving the typi-
cal attendant communications and trappings of an
active, ongoing, and robust contractual relationship
with a forum resident.16 In this section, I discuss in
greater detail B&M’s most important contacts with Con-
necticut and the ways in which the majority understates
the nature, extent, and/or significance of those contacts
and the continuing obligations envisioned and created
by the parties’ agreement.
A
First, the majority significantly understates, as a mat-
ter of both law and fact, the importance of B&M’s
numerous telephone, electronic, and letter communica-
tions with North Sails in Connecticut. In World-Wide
Volkswagen Corp. v. Woodson, supra, 444 U.S. 286, the
United States Supreme Court discussed how ‘‘[t]he lim-
its imposed on state jurisdiction by the [d]ue [p]rocess
[c]lause, in its role as a guarantor against inconvenient
litigation, have been substantially relaxed over the
years. As [that court] noted in McGee v. International
Life Ins. Co., [supra, 355 U.S. 222–23], this trend is
largely attributable to a fundamental transformation in
the American economy: Today many commercial trans-
actions touch two or more [s]tates and may involve
parties separated by the full continent. With this
increasing nationalization of commerce has come a
great increase in the amount of business conducted
by mail across state lines. At the same time modern
transportation and communication have made it much
less burdensome for a party sued to defend himself in
a [s]tate where he engages in economic activity. The
historical developments noted in McGee, of course, have
only accelerated in the generation since that case was
decided.’’ (Internal quotation marks omitted.) World-
Wide Volkswagen Corp. v. Woodson, supra, 292–93; see
also Burger King Corp. v. Rudzewicz, supra, 471 U.S.
476 (‘‘[I]t is an inescapable fact of modern commercial
life that a substantial amount of business is transacted
solely by mail and wire communications across state
lines, thus obviating the need for physical presence
within a [s]tate in which business is conducted. So
long as a commercial actor’s efforts are purposefully
directed toward residents of another [s]tate, we have
consistently rejected the notion that an absence of phys-
ical contacts can defeat personal jurisdiction there.’’
(Internal quotation marks omitted.)); Metropolitan Life
Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 574 (2d
Cir.) (‘‘the conveniences of modern communication and
transportation ease what would have been a serious
burden only a few decades ago’’), cert. denied, 519 U.S.
1006, 117 S. Ct. 508, 136 L. Ed. 2d 398 (1996), and cert.
denied, 519 U.S. 1007, 117 S. Ct. 508, 136 L. Ed. 2d
398 (1996).
The majority denies that any courts deem ‘‘consistent
and continuing communication by itself [to be] suffi-
cient to justify jurisdiction . . . .’’ Part I B of the major-
ity opinion. In no way do I rely on the stream of commu-
nication between the parties ‘‘by itself’’ to establish
jurisdiction, but I take issue with the majority’s reading
of the case law on this subject. In fact, consistent with
the United States Supreme Court’s guidance, many sis-
ter courts have held that regular and sustained contrac-
tual communications, if not independently sufficient to
establish personal jurisdiction, go a long way in that
direction. See, e.g., Cole v. Mileti, supra, 133 F.3d 436(‘‘If . . . a nonresident defendant transacts business
by negotiating and executing a contract via telephone
calls and letters to an Ohio resident, then the defendant
has purposefully availed himself of the forum by creat-
ing a continuing obligation in Ohio. . . . Furthermore,
if the cause of action is for breach of that contract
. . . then the cause of action naturally arises from the
defendant’s activities in Ohio.’’ (Citations omitted.));
Grand Entertainment Group, Ltd. v. Star Media Sales,
Inc., supra, 988 F.2d 479–80, 482–83 (in dispute over
intellectual property licensing contract, finding suffi-
cient minimum contacts largely on basis of twelve tel-
exes and fifty telephone calls to forum state); English &
Smith v. Metzger, 901 F.2d 36, 38–39 (4th Cir. 1990)
(relying in large part on parties’ telephone calls and
written communications, in conjunction with ongoing
contractual dealings, to find jurisdiction); Pulte Home
Corp. v. Delaware Land Associates, L.P., Docket No.
08-311, 2008 WL 2168788, *3 (E.D. Pa. May 22, 2008)
(‘‘[t]he [United States Court of Appeals for the] Third
Circuit has found that mail and telephone communica-
tions that the defendant sent into the forum state may be
sufficient to be considered minimum contacts’’ (internal
quotation marks omitted)); Eaton Corp. v. Maslym
Holding Co., 929 F. Supp. 792, 797 (D.N.J. 1996) (‘‘courts
have found that communications directed into [the
forum state] go a long way toward establishing mini-
mum contacts’’); Kultur International Films Ltd. v.
Covent Garden Pioneer, FSP., Ltd., 860 F. Supp. 1055,
1062–63 (D.N.J. 1994) (finding jurisdiction largely on
basis of communications and anticipated relationship);
Crete Carrier Corp. v. Red Food Stores, Inc., supra, 254
Neb. 324 (‘‘numerous telephone and mail communica-
tions made pursuant to an ongoing and long-term con-
tract are sufficient to establish personal jurisdiction’’);
Willbros USA, Inc. v. Certain Underwriters at Lloyds
of London, 220 P.3d 1166, 1174 (Okla. Civ. App. 2009)
(‘‘[t]elephone calls and letters alone may provide suffi-
cient contacts for the existence of personal jurisdic-
tion’’).17 Indeed, one case on which the majority relies
for this point, InfoSpan, Inc. v. Emirates NBD Bank
PJSC, 903 F.3d 896 (9th Cir. 2018), implies that, in a
contract dispute between a Cayman Islands corporation
and an Emirati bank that had no relationship to Califor-
nia, it would have been enough to confer jurisdiction
under Walden had the defendant bank conducted the
contract ‘‘through [e-mail] and [telephone] calls to Cali-
fornia . . . .’’ Id., 903; see footnote 10 of the majority
opinion. The majority does acknowledge, as it must,
that sister courts have found business communications
with a forum resident, in the context of a long-term
contractual relationship, to be an important factor sup-
porting a finding of jurisdiction. Indeed, the United
States Supreme Court recently reaffirmed as much. See
Walden v. Fiore, supra, 571 U.S. 285 (‘‘physical entry
into the [s]tate . . . through . . . goods, mail, or some
other means—is certainly a relevant contact’’). And
although I might quibble with the majority’s reading of
some of the cases on which it relies,18 I do agree with
its ultimate point that the importance of mail, elec-
tronic, and telephone communications as a factor estab-
lishing personal jurisdiction depends on both the quan-
tity and the nature of those communications.
But our agreement ends quickly because the majority
very significantly underestimates the importance of the
hundreds of indisputably substantive communications
between B&M and its Connecticut counterpart. The
majority dismisses nearly two decades of communica-
tions, declaring that, ‘‘[d]espite this evidence . . . the
parties’ communications do not weigh in favor of juris-
diction because they were ancillary to the performance
of the contract . . . .’’ Part I B of the majority opinion.
I find this conclusion inexplicable and completely at
odds with the record evidence. The record reflects that
the hundreds of pages of sample communications that
North Sails proffered in opposition to B&M’s motion
to dismiss go to the core of the parties’ agreement and
B&M’s alleged breach thereof. They document substan-
tive negotiations over the terms of the licensing agree-
ment, the signing of the agreement itself, numerous
examples of the fifty-two quarterly accounting reports
of B&M’s royalty payments sent for North Sails’ review
pursuant to the agreement, and attempts to navigate and
resolve the parties’ ongoing legal and financial disputes,
disputes that ultimately culminated in B&M’s alleged
breach.
North Sails specifically alleges, for example, that, in
2000, while negotiating the licensing agreement, B&M
representatives communicated with North Sails by tele-
phone, fax, and mail at its Connecticut offices, after
which B&M sent the executed agreement to Connecti-
cut. The record contains evidence that B&M representa-
tives then e-mailed Whidden in February, 2001, seeking
substantive amendments to the terms of the agreement;
there were significant differences between the parties
that required resolution in these communications into
and out of Connecticut.
Meaningful contractual negotiations continued in the
same manner at various times throughout the long life
of the business relationship. The record contains an
April 16, 2003 e-mail from B&M representatives to Whid-
den proposing a change to a core element of the parties’
contract, the licensing fee that B&M paid in exchange
for its use of the North Marks. The record further reveals
that, in June, 2007, B&M wrote to North Sails in Con-
necticut regarding the former’s interest in acquiring the
rights to the ‘‘ ‘Northkiteboarding’ ’’ trade name. B&M
indicated that acquiring the rights to the mark was key
to the company’s strategic growth plan.
The record plainly reveals that contractual issues
reached a level of open and potentially irremediable
discord in 2009, when the parties communicated about
various alleged breaches of the licensing agreement by
B&M, including its failure to pay the required royalties
and its attempt to register a trademark (NKB Mark) that
was ‘‘confusingly similar’’ to the North Marks. North
Sails wrote letters demanding that B&M pay the required
royalties, abandon the NKB Mark, and assign the NKB
Mark to North Sails. Following a series of negotiations
requiring the involvement of counsel from New York
and Chicago, B&M agreed to comply with North Sails’
demands. This serious contractual rift, which went to
the core of the parties’ trademark licensing agreement,
involved multiple communications and negotiations
directed into and out of North Sails’ Milford office.
For instance, the record includes a February 25, 2009
letter from Whidden to various B&M executives that
references the parties’ prior discussions of and efforts
to resolve the alleged breach. After memorializing a possi-
ble resolution to the dispute that the parties previously
had discussed, Whidden closed: ‘‘[North Sails] will
amend the existing [l]icense [a]greement upon [B&M’s]
completion of the above assignments and the with-
drawal of the intent-to-use [United States] application.
. . . [P]lease believe me. I am trying to be a good part-
ner to you and to give you every opportunity possible
to be successful. In fact, there is nothing I want more
than for you to have fantastic success going forward.
Obviously, we have coterminous objectives when it
comes to wanting the best for B&M and the North
[Sails] brand.’’
On April 7 of that year, B&M’s Chicago counsel
e-mailed Whidden a draft of a proposed addendum to
the parties’ licensing agreement to address North Sails’
concerns. The e-mail contains approximately twenty
pages of attachments, including the addendum itself,
assignments of B&M’s infringing trademarks in the
United States and Europe, and a withdrawal of North
Sails’ notice of opposition before the United States
Patent and Trademark Office. Then there is a lengthy
July, 2009 e-mail chain from B&M that references prior
telephone calls between the parties, as well as meetings
with legal counsel, regarding a supplement to the licens-
ing agreement to resolve a dispute over the use of the
North Marks in the textile industry. None of this can
fairly be characterized as ‘‘ancillary.’’
North Sails further alleges that, since 2014, the parties
have engaged in numerous communications, including
telephone calls to Milford and the solicitation of a for-
mal bid from North Sails, to address B&M’s ongoing
interest in purchasing the North Marks and terminating
the licensing agreement. Finally, North Sails contends
that B&M and its counsel informed North Sails on multi-
ple occasions in 2017 and 2018 that it planned to breach
the agreement, after which the parties engaged in multi-
ple conversations in an attempt to reach a settlement.
B&M allowed North Sails to audit its financial records
at that time. Again, these communications went to the
very essence and existence of the business relationship,
and they were made into and out of Connecticut. If
each of these communications is merely ‘‘ancillary,’’ as
the majority repeatedly suggests; part I B of the majority
opinion; it is difficult to imagine what might qualify as
substantive. See, e.g., Central Freight Lines, Inc. v.
APA Transport Corp., 322 F.3d 376, 382 (5th Cir. 2003)
(contract negotiations via telephone and mail are sub-
stantive contacts); Grand Entertainment Group, Ltd.
v. Star Media Sales, Inc., supra, 988 F.2d 482 (‘‘contract
negotiations with forum residents can empower a court
to exercise personal jurisdiction over persons outside
the forum’’); Max Ten Marketing, LLC v. Marketech,
Inc., supra, 2012 WL 12898795, *3 (e-mails containing
amendments to parties’ contract and addressing subject
of terminating or renegotiating contract, along with
mailing of executed contract, were important contacts
supporting finding of jurisdiction); Nationwide Mutual
Ins. Co. v. Curry, Docket No. 2:96-CV-476, 1997 WL
165374, *4–5 (S.D. Ohio January 7, 1997) (letter from
defendants seeking amicable resolution of controversy,
while not alone sufficient to establish jurisdiction, was
deemed important substantive contact).
These communications are in addition to the more
than fifty quarterly royalty reports and annual financial
reports that B&M sent for North Sails’ review in Con-
necticut, pursuant to paragraphs 7 (c) and 7 (d) of the
licensing agreement. These financial reports were not
peripheral or ancillary. They were central and essential
to North Sails’ ability to monitor and enforce its rights
under the licensing agreement, such as when, in 2008
and 2009, B&M failed to pay royalties due under the
agreement.
I also would hazard to say that, had the quarterly
accountings been hand delivered to Milford by a B&M
employee, we would not even be discussing the ques-
tion of personal jurisdiction. ‘‘In its application of the
test for purposeful availment, the [court in] Burger
King . . . recognized that wire and phone transmis-
sion make possible impact on the forum state without
the physical presence of the actor.’’ Corporate Invest-
ment Business Brokers v. Melcher, 824 F.2d 786, 789
(9th Cir. 1987). In this day and age, this is how business
is done. See, e.g., Heritage House Restaurants, Inc. v.
Continental Funding Group, Inc., 906 F.2d 276, 283
(7th Cir. 1990) (‘‘[the defendant] created a relationship
[that] is naturally based on telephone and mail contacts
rather than physical presence, and it should not be able
to avoid jurisdiction based on that distinction’’); Travel
Opportunities of Fort Lauderdale, Inc. v. Walter Karl
List Management, Inc., 726 So. 2d 313, 315 (Fla. App.
1998) (‘‘in modern commercial life it matters little that
such solicitation is accomplished by a deluge of catalogs
rather than a phalanx of drummers: [t]he requirements
of due process are met irrespective’’ (internal quotation
marks omitted)); cf. Sarvint Technologies, Inc. v.
OMsignal, Inc., 161 F. Supp. 3d 1250, 1262 (N.D. Ga.
2015) (‘‘[c]yberspace . . . is not some mystical incan-
tation capable of warding off the jurisdiction of courts
built from bricks and mortar’’ (internal quotation marks
omitted)). These reports may seem like nothing more
than inconsequential ‘‘receipts’’ to the majority; part I
B of the majority opinion; but, as I have discussed, the
accounting function—confirming that proper royalties
were timely paid—was a critical component of the par-
ties’ contract, and North Sails relied on it on more than
one occasion to enforce its rights under the agreement.
Indeed, the record includes various documents in which
representatives of both parties underscore the impor-
tance—to them—of the reports.
There is a good deal more. Reading the record in the
light most favorable to finding jurisdiction, we may
reasonably assume that the many examples of written
correspondence submitted by North Sails in opposition
to B&M’s motion to dismiss reflect only a portion of
the parties’ total e-mail, letter, and fax communications
over the past two decades. And, of course, the docu-
ments in the record do not capture the content of any
of the parties’ many substantive business telephone
calls, a number of which are referenced in North Sails’
written communications. In the face of this extensive
record, and drawing all reasonable inferences in favor
of North Sails, I cannot agree with the majority’s conclu-
sion that the parties’ hundreds of communications to
and from Connecticut were merely ancillary. See, e.g.,
Johnson Worldwide Associates, Inc. v. Brunton Co., 12
F. Supp. 2d 901, 907–908, 911 (E.D. Wis. 1998) (almost
sixty letters, with offers to purchase trademarks at
issue, represented ‘‘substantial’’ contacts).
B
Not all of the parties’ communications were written,
telephonic, or electronic. B&M’s most senior officer,
Marchand, physically visited North Sails in Connecticut
in 2003. North Sails has alleged that this visit ‘‘con-
cern[ed] [the parties’] ongoing contractual relationship
and related business matters,’’ and we are obliged to
accept this undisputed allegation as true.
Numerous sister courts have concluded that even
one or two visits to the forum state, in the furtherance
of a contractual relationship, weigh heavily in favor
of a finding of personal jurisdiction. See, e.g., Control
Screening LLC v. Technological Application & Produc-
tion Co. (Tecapro), HCMC-Vietnam, 687 F.3d 163,
167–68 (3d Cir. 2012); Central Freight Lines, Inc. v.
APA Transport Corp., supra, 322 F.3d 382; Complete
Concepts, Ltd. v. General Handbag Corp., 880 F.2d 382,
388–89 (11th Cir. 1989); Pulte Home Corp. v. Delaware
Land Associates, L.P., supra, 2008 WL 2168788, *4;
Excel Plas, Inc. v. Sigmax Co., Ltd., Docket No. 07-CV-
578-IEG (JMA), 2007 WL 2853932, *8 (S.D. Cal. Septem-
ber 27, 2007); Omni Hotels Management Corp. v. Round
Hill Developments Ltd., 675 F. Supp. 745, 750 (D.N.H.
1987). Although the majority contends otherwise; see
footnote 22 of the majority opinion; the visit need not
be for purposes of negotiating the contract or the like
to be a relevant contact but may simply contribute to
maintaining the parties’ ongoing business relationship.
See, e.g., Penco Products, Inc. v. WEC Mfg., LLC, 974
F. Supp. 2d 740, 751 and n.62 (E.D. Pa. 2013) (finding
that jurisdiction existed under Burger King when
defendant made single forum visit over course of con-
tractual relationship to discuss sales and marketing);
SWMP, LLC v. Downs Racing, L.P., Docket No. 12-
2608-JWL, 2012 WL 5354602, *3 (D. Kan. October 30,
2012) (single forum visit to discuss project that was
subject of contract supported finding of jurisdiction);
Hexacomb Corp. v. Damage Prevention Products Corp.,
905 F. Supp. 557, 562–63 (N.D. Ind. 1995) (‘‘[The] trip
[the defendant’s president took] to Indiana to check on
[the] progress in building the machine is a manifest
indication that [the defendant] purposefully availed
itself of the privilege to conduct business in Indiana.
. . . That [the] visit to Indiana was subsequent to the
formation of the contract . . . is irrelevant.’’ (Citations
omitted; footnote omitted.)); Reliable Tool & Machine
Co. v. U-Haul International, Inc., 837 F. Supp. 274,
280–81 (N.D. Ind. 1993) (‘‘[V]isits made during the
course of performance [can] also be significant contacts
with the forum state. . . . This court deems controlling
the fact that [the defendant] thought the contract was
important enough to make substantial contacts with
the forum state, not when the visit was made.’’ (Citation
omitted.)); Texas Axles, Inc. v. Baillie, 140 Ill. App. 3d
760, 762, 489 N.E.2d 16 (1986) (considering fact that
‘‘on one occasion during the course of the dealings
an agent of the [defendant] visited and inspected the
[plaintiff’s] plant in Texas’’); Willbros USA, Inc. v. Cer-
tain Underwriters at Lloyds of London, supra, 220 P.3d
1173–74 (infrequent social visits involving some discus-
sion of business were deemed relevant contacts).19
This makes perfect sense. First, the fact that B&M’s
chief executive officer went to the trouble and expense
of crossing the Atlantic to cultivate an ongoing business
relationship easily distinguishes this case from those
involving one-off purchases or other arm’s length trans-
actions, in which the plaintiff’s state of residence is
purely incidental. Second, by sending a representative
into the forum, B&M availed itself of all manner of
additional protections, everything from Connecticut’s
law enforcement and emergency services to food safety
codes, from traffic laws to our unique state constitu-
tional freedoms. See, e.g., Mid-America Tablewares,
Inc. v. Mogi Trading Co., Ltd., supra, 100 F.3d 1361(‘‘by coming to Eau Claire and engaging in preliminary
discussions over a [three day] period, [the defendant]
invoked the benefits and protections of Wisconsin law;
at a minimum, Wisconsin provided police and fire pro-
tection . . . during [the] visit to [the plaintiff’s] facili-
ties’’); Bell Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d
816, 820 (8th Cir. 1994) (single visit by defendant’s repre-
sentative was relevant minimum contact because repre-
sentative benefitted from police and fire protection and
other public services while in forum state); In re Oil
Spill by Amoco Cadiz off Coast of France on March
16, 1978, 699 F.2d 909, 916 (7th Cir.) (‘‘[the Spanish
defendant] had the protection of Illinois’ laws all the
while that it was transacting business with [the cross
claimaint] in Chicago’’), cert. denied sub nom. Astilleros
Espanoles, S.A. v. Standard Oil Co. (Indiana), 464 U.S.
864, 104 S. Ct. 196, 78 L. Ed. 2d 172 (1983). Accordingly,
on the basis of Marchand’s visit to Connecticut, together
with the parties’ hundreds of contract related communi-
cations over the course of their eighteen year commer-
cial relationship, I would conclude that jurisdiction over
B&M is proper.
C
Additional evidence of minimum contacts is found
in the terms and execution of the licensing agreement
itself. Whidden has averred that all of North Sails’ obli-
gations under the agreement were performed in Con-
necticut: ‘‘North Sails has performed its obligations
under the [l]icense [a]greement, such as registering the
North Marks, maintaining the exclusivity of the license
granted to [B&M] under the [l]icense [a]greement . . .
and handling the [day-to-day] business and contractual
relationship with [B&M] from Connecticut.’’ Although
mere knowledge that North Sails was a Connecticut
resident may not be sufficient to establish minimum
contacts; see, e.g., Chung v. NANA Development Corp.,
supra, 783 F.2d 1128; a party’s knowledge that contrac-
tual performance will occur and is occurring in the
forum state is a meaningful indicium of fairness and
foreseeability. See, e.g., Air Products & Controls, Inc.
v. Safetech International, Inc., 503 F.3d 544, 553 (6th
Cir. 2007) (‘‘[the] [d]efendants . . . undoubtedly knew
that [the plaintiff] had its principal place of business
in Michigan . . . and that the focal point of its actions
and the brunt of the harm would be in Michigan’’);
Mississippi Interstate Express, Inc. v. Transpo, Inc.,
681 F.2d 1003, 1006, 1008 (5th Cir. 1982) (finding juris-
diction, even though ‘‘[the defendant’s] contact with
. . . Mississippi was somewhat minimal, consisting pri-
marily of entering into a contract with a Mississippi
corporation and engaging that corporation to deliver
certain shipments between states other than Missis-
sippi’’).
The majority also understates the importance of
North Sails’ contractual right, on demand, to conduct
quality control inspections of the licensed products in
Connecticut. Article 6 of the licensing agreement con-
fers extensive rights on North Sails, preserving its abil-
ity to ensure that the licensed products bearing its name
‘‘are of the highest quality in the industry . . . .’’ Para-
graph 6 (b), among other things, allows North Sails to
inspect B&M’s products and relevant quality control
test data, presumably in Europe.20 Paragraph 6 (c) then
goes one step further by providing that ‘‘[North Sails]
shall have the right to receive from B&M [i.e., in Con-
necticut] at such time as [North Sails] considers it nec-
essary or desirable reasonable sample quantities of the
[l]icensed [p]roducts and examples of advertising and
promotional materials and all quality control test data
pertaining to the [l]icensed [p]roducts in order to deter-
mine whether such products conform to the quality
standards set forth herein.’’ (Emphasis added.)
It strikes me as unarguable that B&M has voluntarily
accepted a real and substantial connection to Connecti-
cut when its contractual commitments require it to ship
products and advertising materials into Connecticut for
inspection on demand. The majority cites three cases,
all inapposite, for the proposition that ‘‘[c]ourts have
found oversight provisions similar to those in the pres-
ent case to be ancillary and not to support jurisdiction.’’
Part I B of the majority opinion.
First, the majority relies on Diamond Healthcare of
Ohio, Inc. v. Humility of Mary Health Partners, 229
F.3d 448, 449 (4th Cir. 2000) (Diamond Healthcare), in
which a divided panel of the United States Court of
Appeals for the Fourth Circuit held that an Ohio corpo-
ration (Humility) that had entered into a contract with
a Virginia corporation (Diamond) to operate a clinical
facility in Ohio was not subject to personal jurisdiction
in Virginia. Diamond Healthcare is not our case. First,
the right of inspection in that case was limited to the
review of financial statements and other business
records; there was no question, as in the present case,
of the defendant having to ship actual physical products
into the forum state for inspection. See id., 451–52.
Second, the majority in Diamond Healthcare did not
hold that a plaintiff’s contractual right of inspection
is never constitutionally relevant. Rather, the majority
noted that Diamond’s right to inspect Humility’s finan-
cial statements was peripheral to the agreement in that
particular case, insofar as the contract was for the provi-
sion of hospitalization services. See id., 452. Here, by
contrast, when the subject of the agreement is intangi-
ble—the right to use North Sails’ intellectual property—
the ability to confirm that the appropriate royalties were
being paid and that the North Marks were not being
debased by use in conjunction with inferior products
was an important aspect of the licensing agreement.
Third, Judge J. Michael Luttig authored a dissenting
opinion in which he argued that jurisdiction was proper
under Burger King because, among other things, the
contract afforded Diamond a right of inspection in Vir-
ginia. See id., 455 (Luttig, J., dissenting).
The other cases on which the majority relies are still
less availing. Guinness Import Co. v. Mark VII Distrib-
utors, Inc., 153 F.3d 607 (8th Cir. 1998), did not involve
any right of inspection whatsoever. Moreover, the sen-
tence of the decision that the majority quotes, which
merely explains that the defendant, a Jamaican beer
brewer, did not operate in Minnesota other than through
independent importers and distributors, falls in the sec-
tion of the decision in which the court discusses whether
the defendant was subject to general, rather than spe-
cific, jurisdiction. See id., 614–15. The discussion is
irrelevant to the present case. The third case on which
the majority relies, RLB & Associates, Ltd. v. Aspen
Medical Pty., Docket No. 2:15-cv-123, 2016 WL 344925(D. Vt. January 27, 2016), is likewise inapposite, as no
right of inspection was involved or discussed. The pas-
sage to which the majority cites in this unreported Dis-
trict Court decision merely states that the foreign defen-
dant had no control over how the resident plaintiff
carried out its portion of the contract. See id., *5–6.
The clear implication is that, if the parties had been
able to regulate each other’s work under the contract,
jurisdiction would have been proper.
The cases that are on point, such as Marine Charter &
Storage Ltd., Inc. v. Denison Marine, Inc., 701 F. Supp.
930 (D. Mass. 1988), are not cited in the majority opin-
ion. In that case, the court found that jurisdiction over
the Florida defendant was proper in Massachusetts on
the basis of a yearlong contractual relationship, cross-
state communications, and an inspection clause, not-
withstanding that the plaintiff had initiated contact and
that the agreement was negotiated in Florida and sub-
ject to Florida law. See id., 934–95; see also, e.g., Electro-
source, Inc. v. Horizon Battery Technologies, Ltd., 176
F.3d 867, 872 (5th Cir. 1999); Mid-America Tablewares,
Inc. v. Mogi Trading Co., Ltd., supra, 100 F.3d 1360;
United Coal Co. v. Land Use Corp., 575 F. Supp. 1148,
1152, 1157 (W.D. Va. 1983); cf. Burger King Corp. v.
Rudzewicz, supra, 471 U.S. 480 (relying on fact that
‘‘[the defendant voluntarily accepted] the long-term and
exacting regulation of his business from [the plaintiff’s]
Miami headquarters’’).
It is difficult to know what to make of the majority’s
response that, although the contract required that B&M
send materials to North Sails for inspection, and
although North Sails has been located in Connecticut
throughout the entire two decades of the parties’ rela-
tionship, the contract did not specifically require that
B&M send the materials to North Sails in Connecticut.
See part I B of the majority opinion. The majority offers
no rationale for erecting this sort of arbitrary barrier
to jurisdiction. The agreement that required B&M to
send materials for North Sails’ inspection listed North
Sails’ Connecticut address as its principal place of busi-
ness, on the very first page. The record indicates that
B&M mailed its other communications to North Sails
in Connecticut, and its chief executive officer visited
North Sails in Connecticut; there was no reason to think
that the products for inspection would be sent to any
location other than Connecticut. In requiring that the
contract include a specific inspection-in-Connecticut
provision, the majority fails to take into account the
primary concern of the due process clause in a case
such as this one, which is that the defendant be able
to predict that the ‘‘contemplated future consequences’’
of the agreement will involve its reaching out into the
forum state. Burger King Corp. v. Rudzewicz, supra,471 U.S. 479. That prediction was easy to make here.21
The majority’s observation that North Sails exercised
its inspection rights in a limited manner also is irrele-
vant. The majority offers neither authority nor analysis
in support of its suggestion that a forum resident must
exercise its right of inspection on a regular basis in
order for that right to factor in the constitutional analy-
sis. Such a theory would make little sense; the important
point is that the foreign defendant, by voluntarily agree-
ing to submit to inspection of its products and financial
records in the forum state, reasonably foresees that it
may be called to answer there for breach of contract.
See, e.g., K-V Pharmaceutical Co. v. J. Uriach & CIA,
S.A., 648 F.3d 588, 593–94 (8th Cir. 2011); see also foot-
note 6 of this opinion. As the United States Supreme
Court explained in Burger King, the ‘‘terms of the con-
tract’’ and the attendant ‘‘contemplated future conse-
quences’’ thereof are as important to the due process
analysis as ‘‘the parties’ actual course of dealing . . . .’’
Burger King Corp. v. Rudzewicz, supra, 471 U.S. 479.
For this reason, sister courts have determined that per-
sonal jurisdiction exists on the basis of contractual
rights that were never actually exercised. See, e.g., K-
V Pharmaceutical Co. v. J. Uriach & CIA, S.A., supra,
594 (‘‘[a]lthough the record reflects that many of the
[contract] terms were never carried out because the
contract was terminated before the [product] was suc-
cessfully developed, both these terms and the future
consequences that the parties contemplated in fashion-
ing them support personal jurisdiction’’); North Penn
Gas Co. v. Corning Natural Gas Corp., 897 F.2d 687,
690–91 (3d Cir.) (defendant’s unexercised contractual
right to store gas in Pennsylvania fields qualified as
minimum contact), cert. denied, 498 U.S. 847, 111 S.
Ct. 133, 112 L. Ed. 2d 101 (1990); see also TJF Associ-
ates, LLC v. Kenneth J. Rotman & Allianex, LLC,
Docket No. 05-705, 2005 WL 1458753, *5 (E.D. Pa. June
17, 2005) (‘‘[a]s it happened, the mutual benefits and
obligations of a long-term alliance did not come to pass,
but the fact that the parties contemplated such benefits
and obligations is significant in and of itself’’).
Finally, although the majority is correct that the
licensing agreement provides that B&M’s royalty pay-
ments were (subject to North Sails’ sole discretion)
routed to North Sails through a Wisconsin based bank,
the important point for jurisdictional purposes is that
B&M was fully aware that North Sails would, for all
practical purposes, receive and use the funds in Con-
necticut because that is where North Sails resides. B&M
necessarily understood that North Sails would suffer
the harm in Connecticut should B&M renege on its
contractual obligations. See Burger King Corp. v. Rud-
zewicz, supra, 471 U.S. 480 (relying on fact that defen-
dant’s improper use of plaintiff’s trademarks caused
foreseeable injury at plaintiff’s corporate headquarters
in forum state); see also, e.g., Air Products & Controls,
Inc. v. Safetech International, Inc., supra, 503 F.3d 553;
Associated Business Telephone Systems Corp. v. Greater
Capital Corp., 861 F.2d 793, 797 (3d Cir. 1988); Combus-
tion Engineering, Inc. v. NEI International Combus-
tion, Ltd., 798 F. Supp. 100, 106 (D. Conn. 1992). A
defendant’s knowledge that the plaintiff will suffer harm
in the forum state is not, standing alone, enough to
confer jurisdiction; see Walden v. Fiore, supra, 571 U.S.
289–90; but it is relevant to the constitutional analysis;
see id., 286; especially in a case that revolves around
intellectual property rights. See, e.g., Glenn H. Curtiss
Museum of Local History v. Confederate Motors, Inc.,
Docket No. 20-CV-6237 (CJS), 2021 WL 514229, *4
(W.D.N.Y. February 11, 2021) (‘‘[t]he torts of copyright
and trademark infringement cause injury in the state
where the allegedly infringed intellectual property is
held’’ (internal quotation marks omitted)); Mountz, Inc.
v. Northeast Industrial Bolting & Torque, LLC, Docket
No. 15-cv-04538-MEJ, 2016 WL 6699295, *4–5 (N.D. Cal.
September 30, 2016) (explaining that, post-Walden, it
remains true that, ‘‘[i]n trademark infringement actions,
the claim arises out of [forum related] activities when
the infringing conduct harms the plaintiff in the
forum’’), report and recommendation adopted, 2016 WL
6679548 (N.D. Cal. November 14, 2016); Raser Technolo-
gies, Inc. v. Morgan Stanley & Co., LLC, 449 P.3d 150,
160, 162 (Utah 2019) (noting that ‘‘[t]he distinction
between a defendant’s contacts with the plaintiff and
a defendant’s contacts with the forum state itself is
difficult to grasp in the abstract’’ and that, ‘‘[e]ven if
the effects are felt by just the plaintiff in the state, if
those effects are the product of a defendant purpose-
fully reaching into the state, specific jurisdiction may
exist [under Walden]’’).
D
The majority also understates the legal advantages
that B&M enjoyed by virtue of North Sails’ Connecticut
residency. There are countless ways in which Connecti-
cut law helped to ensure the safety and security of
Marchand’s visit here and the ability of North Sails
to carry out its everyday business functions and the
contractual performance on which B&M’s contract
relied. See, e.g., Vishay Intertechnology, Inc. v. Delta
International Corp., 696 F.2d 1062, 1068 (4th Cir. 1982)
(intent to derive benefit from contracting with forum
resident and to inflict financial harm on resident in
forum is enough to establish that defendant availed
itself of privilege of forum state’s laws). To cite one
example that North Sails argued before the trial court,
over the course of the parties’ eighteen year relation-
ship, Connecticut law provided B&M with key protec-
tions against North Sails engaging in wrongful commer-
cial practices, business torts, and the like under statutes
such as the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq. There are
numerous cases in which Connecticut courts have per-
mitted a foreign entity, such as B&M, to bring a CUTPA
claim against a Connecticut company arising from a
dispute involving a long-term contract. See, e.g., Fabri
v. United Technologies International, Inc., 387 F.3d
109, 122–23 (2d Cir. 2004) (holding that Argentine plain-
tiffs could prevail on CUTPA claim alleging that Con-
necticut defendant wrongfully terminated parties’ long-
term agreement); Stanley Works Israel Ltd. v. 500
Group, Inc., 332 F. Supp. 3d 488, 499–500, 510–13 (D.
Conn. 2018) (declining to dismiss CUTPA claim brought
by Israeli entity alleging that defendants maliciously
refused to return overpayment of funds due under
licensing agreement); Metropolitan Enterprise Corp. v.
United Technologies International, Corp., Docket No.
3:03CV1685 (JBA), 2004 WL 1497545, *4 (D. Conn. June
28, 2004) (noting that ‘‘the statutory scheme permits
[out-of-state] residents to bring a CUTPA action against
a defendant located in Connecticut notwithstanding the
locus of injury’’).22 See generally R. Langer et al., 12
Connecticut Practice Series: Connecticut Unfair Trade
Practices, Business Torts and Antitrust (2020–2021 Ed.)
§ 4.3, pp. 406–74. The ready availability of such legal
protections was an advantage possessed by B&M since
2000 and provides one more reason why it is fair that
B&M would shoulder the reciprocal burden of being
subject to jurisdiction here, should it be called to
account in Connecticut for its alleged commercial mis-
conduct. The majority has not identified any jurisdiction
that is more directly impacted by or has a predictably
greater interest in resolving the present dispute than
does Connecticut.
E
For its part, in concluding that B&M lacks sufficient
minimum contacts with Connecticut, the majority relies
heavily on the purported fact that ‘‘the record contains
nothing to show . . . that B&M initiated the October,
2000 licensing agreement.’’ Part I B of the majority opin-
ion. Although it attempts at times to minimize the signif-
icance of this point; see footnote 18 of the majority
opinion; the majority in fact emphasizes its importance
by mentioning the issue of which party initiated contrac-
tual relations no fewer than a dozen times throughout
its opinion. Indeed, the majority repeatedly highlights
the alleged lack of any evidence that B&M first
approached North Sails as the missing ingredient in
North Sails’ jurisdictional allegations and notes that
one decision gave ‘‘special weight’’ to the fact that the
defendant had initiated contact with the plaintiff. Part
I B of the majority opinion; see CFA Institute v. Insti-
tute of Chartered Financial Analysts of India, 551 F.3d
285, 295 n.17 (4th Cir. 2009). I believe that this aspect
of the majority’s analysis is mistaken as a matter of
both law and fact.
Sister courts are not uniform in the legal weight they
give to which party originally initiated contractual nego-
tiations. When it is the defendant who first reaches out
to contract with the plaintiff, there is broad agreement
that that is one factor favoring jurisdiction, although no
more important than the long-term nature of the parties’
relationship. See, e.g., Diamond Crystal Brands, Inc.
v. Food Movers International, Inc., 593 F.3d 1249, 1268
and n.24 (11th Cir.), cert. denied, 562 U.S. 836, 131 S.
Ct. 158, 178 L. Ed. 2d 39 (2010); Pro Axess, Inc. v. Orlux
Distribution, Inc., 428 F.3d 1270, 1277–78 and n.5 (10th
Cir. 2005); Daniel J. Hartwig Associates, Inc. v. Kan-
ner, 913 F.2d 1213, 1218–19 (7th Cir. 1990). Such cases
are uncontroversial, but they provide no support for
the inverse proposition that jurisdiction is difficult to
establish when it was the plaintiff who made the first
overture.
To the contrary, the prevailing rule appears to be
that, when it is the plaintiff who initiated contact, sister
courts treat this as merely one among many relevant
factors, focusing on considerations such as whether,
on the one hand, the relationship revolved around a
single product sale or was solely the result of the plain-
tiff’s unilateral activity in reaching out to the defendant,
which tends to weigh against jurisdiction, or, on the
other hand, whether the relationship blossomed into a
long-term partnership in which the defendant volunta-
rily reciprocated by directing its activities toward the
forum state in various ways. See, e.g., Diamond Crystal
Brands, Inc. v. Food Movers International, Inc., supra,
593 F.3d 1271–72 (‘‘[t]hat a plaintiff first solicited a
nonresident defendant does not nullify the significance
of a defendant’s initiation of subsequent transactions’’);
Hogar CREA, Inc. v. Hogar CREA International of
Connecticut, Inc., 708 F. Supp. 2d 158, 172 (D.P.R. 2009)
(‘‘the relevant question is not which party instigated
the relationship, but whether the actions are voluntary
or rather the kind of unilateral action that makes the
[forum state] contacts involuntary’’ (internal quotation
marks omitted)); Marine Charter & Storage Ltd., Inc. v.
Denison Marine, Inc., supra, 701 F. Supp. 933 (‘‘[W]hich
party initiated negotiations is not dispositive of pur-
posefulness. The character and quantity of an out-of-
state defendant’s many contacts with the forum state
may still reveal an intent on his part to reap some benefit
from that state even though he has not taken the first
step in the overall negotiation process.’’ (Internal quota-
tion marks omitted.)); Crouch Railway Consulting,
LLC v. LS Energy Fabrication, LLC, 610 S.W.3d 460,
478 (Tenn. 2020) (fact that defendant ultimately chose
to contract with plaintiff was deemed more important
than who approached whom); Willbros USA, Inc. v.
Certain Underwriters at Lloyds of London, supra, 220
P.3d 1173 (‘‘Regardless of who initiated the contact,
the [nonresidents] could have refused to enter into a
contract and thereby alleviated the risk of defending a
suit in [the forum state of] Oklahoma. . . . By choosing
to do business with an Oklahoma company, [the defen-
dant] purposefully availed itself of the privilege of con-
ducting activities within Oklahoma.’’ (Citation omitted;
internal quotation marks omitted.)). In most instances
in which a long-term contractual relationship ultimately
was consummated, sister courts have had no difficulty
finding that minimum contacts existed, even when it
was the plaintiff who initially reached out to solicit that
relationship. See, e.g., Benton v. Cameco Corp., supra,
375 F.3d 1077–78; Grand Entertainment Group, Ltd.
v. Star Media Sales, Inc., supra, 988 F.2d 482–83; South-
west Offset, Inc. v. Hudco Publishing Co., 622 F.2d 149,
150, 152 (5th Cir. 1980); Hogar CREA, Inc. v. Hogar
CREA International of Connecticut, Inc., supra, 172;
H. Lewis Packaging, LLC v. Spectrum Plastics, Inc.,
296 F. Supp. 2d 234, 240 (D. Conn. 2003).
Other courts, such as the United States Court of
Appeals for the Third Circuit, have afforded no weight
whatsoever to whether it was the defendant who first
initiated the relationship or opened contract negotia-
tions with a forum resident. As that court explained in
General Electric Co. v. Deutz AG, supra, 270 F.3d 144,
‘‘[i]n the commercial milieu,’’ it ‘‘is not significant that
one or the other party initiated the relationship. . . .
[Instead] the intention to establish a common venture
extending over a substantial period of time is a more
important consideration.’’ (Citation omitted.) Id., 151;
see also Southern Machine Co. v. Mohasco Industries,
Inc., 401 F.2d 374, 382 (6th Cir. 1968) (‘‘[T]he contention
that [the plaintiff] solicited the license agreement from
[the defendant] is immaterial. . . . [The defendant]
chose to deal with [the plaintiff]; and . . . it cannot
diminish the purposefulness of [the defendant’s] choice
that . . . [the defendant] like the maker of the better
mousetrap, is fortunate enough to get the business with-
out active solicitation . . . .’’ (Citation omitted; inter-
nal quotation marks omitted.)); Bodek & Rhodes, Inc.
v. Bob Lanier Enterprises, Inc., Docket No. 15-3421,
2016 WL 398079, *4 (E.D. Pa. February 2, 2016) (‘‘[t]he
important consideration is the intention to establish a
common venture extending over a substantial period
of time, not which party initiated the relationship’’
(internal quotation marks omitted)); Carlson Corp. v.
University of Vermont, 380 Mass. 102, 109 n.11, 402
N.E.2d 483 (1980) (‘‘[t]he fact that the resident plaintiff
may have initiated the entire business relationship is not
a fact [that] is entitled to constitutional consideration’’).
To my knowledge, the United States Court of Appeals
for the Fourth Circuit is the only appellate court that
gives ‘‘special weight’’ to the question of which party
originally initiated contractual relations. Indeed, even
the Fourth Circuit itself has acknowledged that, ‘‘[when]
. . . minimum contacts are present, that the defen-
dant did not initiate the contacts does not bar a judicial
finding of purposeful availment.’’ Tire Engineering &
Distribution, LLC v. Shandong Linglong Rubber Co.,
Ltd., 682 F.3d 292, 302 (4th Cir. 2012), cert. denied, 568
U.S. 1087, 133 S. Ct. 846, 184 L. Ed. 2d 655 (2013); see
also Universal Leather, LLC v. Koro AR, S.A., supra,
773 F.3d 562 (retaining ‘‘special weight’’ language but
also indicating that which party initiated contact is
merely one factor among many, including whether
defendant engaged in significant or long-term relations,
made in-person contact, or had extensive communica-
tions with forum state). Accordingly, I see no good
reason to accord importance to who first contacted
whom two decades ago; the proper inquiry involves
determining the nature and extent of the relationship
once initiated.
Perhaps more importantly, regardless of the legal
standard, I disagree with the majority’s recitation of
the facts. The evidence, with all reasonable inferences
properly drawn in the light most favorable to North
Sails, reasonably suggests that it was B&M that first
approached North Sails. North Sails had been engaged
in a predecessor licensing agreement with a German
company, North Sails Windsurfing GmbH, since 1990.
The business relationship plainly appears to have been
of substantial commercial importance to B&M’s prede-
cessor,23 and it makes perfect sense that B&M, as the
successor in interest, desired to maintain that beneficial
relationship and undertook the necessary steps to do
so. Indeed, we need not speculate on this point because
the preamble to the October, 2000 licensing agreement
between the present parties indicates that (1) ‘‘B&M
has represented to [North Sails] . . . that B&M is the
successor of North Sails Windsurfing GmbH,’’ (2) ‘‘B&
M is [the] assignee of all interests of North Sails [Winds-
urfing] GmbH,’’ and (3) ‘‘B&M desires to acquire world-
wide rights to use the [North Marks] in connection with
manufacturing and selling certain windsurfing products
. . . .’’ (Emphasis added.) The preamble concludes that
‘‘B&M and [North Sails] wish to mutually terminate
the [p]revious [t]rademark [l]icense [a]greement and to
substitute this [t]rademark [l]icense [a]greement . . . .’’
The fact that B&M acquired North Sails Windsurfing
GmbH’s interests and desired to step into that com-
pany’s shoes with respect to the North Marks licensing
agreement strongly suggests that B&M initiated the con-
tinued business relationship with North Sails. On this
record, viewing the facts in the proper light, by far the
most reasonable assumption is that, when B&M chose
to acquire the interests of the predecessor company,
it did so with the intention of retaining its valuable,
Connecticut based intellectual property rights. B&M, in
other words, initiated the contractual relationship. I do
not understand how anyone could conclude otherwise.
F
Two additional facts in particular stand out as directly
relevant to the proper due process analysis. First, B&M,
with the assistance of North Sails and through B&M’s
own distribution affiliate, actually marketed and sold
the licensed products in Connecticut. Second, the licens-
ing agreement committed B&M to assist North Sails in
litigating any actions that should arise in relation to
the licensed products or the North Marks. Those facts,
while important to any minimum contacts analysis,
assume a special significance in the context of trade-
mark licensing and other intellectual property disputes
that revolve around intangible assets that cannot readily
be ascribed to any particular physical location.
1
The majority, recognizing that knowingly marketing
or distributing trademarked products to the residents
of a forum represents powerful evidence of purposeful
availment, especially in a dispute of this nature; see,
e.g., Curry v. Revolution Laboratories, LLC, 949 F.3d
385, 401 (7th Cir. 2020); states that ‘‘the parties’ course
of dealings shows that B&M, despite having a world-
wide license, never conducted any business in Connect-
icut.’’ Part I B of the majority opinion. The majority
further contends that B&M ‘‘never attempted to exploit
any market for its products in Connecticut.’’ (Internal
quotation marks omitted.) Id. Although the majority
never defines what it means by conducting business in
a state or exploiting a market for its products, these
assertions are, for constitutional purposes, inaccurate.
In his affidavit, Whidden specifically alleges that B&M
purposefully availed itself of the protections and bene-
fits of the state of Connecticut by, among other things,
marketing and selling products subject to the licensing
agreement in this state: ‘‘North Sails has performed its
obligations under the [l]icense [a]greement, such as
. . . advertising and offering for sale in Connecticut
the Surf Sport products at issue in the [v]erified [c]om-
plaint, and other products of . . . B&M, and handling
the [day-to-day] business and contractual relationship
with [B&M] from Connecticut.’’ (Emphasis added.) B&
M did not dispute in the trial court North Sails’ allega-
tions that its Surf Sport products subject to the licensing
agreement were marketed and sold in Connecticut.
Instead, Till Eberle, the chief executive officer of B&
M’s ultimate parent company, Boards and More Holding
GmbH, acknowledged in his affidavit that, in 2017,
approximately 4000 euros worth of B&M products were
sold in Connecticut.24 Eberle contended, however, that
B&M itself does not transact any business in Connecti-
cut, distributing its products here via a sister company,
Washington based Boards & More, Inc. B&M and
Boards & More, Inc., are both wholly owned subsidiar-
ies of Boards and More Beteiligungs GmbH, which, in
turn, is a wholly owned subsidiary of Boards and More
Holding GmbH. Both parties addressed B&M’s Connect-
icut product sales in their trial briefs. At the hearing
on the motion to dismiss, B&M again took the position
that sales of the licensed products in Connecticut were
‘‘trivial.’’25
In its memorandum of decision, the trial court recog-
nized that ‘‘some of the products at issue were sold
here [in Connecticut].’’ The court deemed that fact irrel-
evant to the minimum contacts analysis, however, on
the basis of its mistaken belief that the only constitu-
tionally relevant question was where B&M allegedly
breached the licensing agreement. See part I of this
opinion. As the following discussion makes clear, prod-
uct sales by B&M made through a dealer, such as
Boards & More, Inc., are directly relevant to the mini-
mum contacts analysis. This is especially so in the pres-
ent case, in which B&M derives licensing fees for prod-
ucts sold by its affiliates, including Boards & More, Inc.,
under the express terms of the licensing agreement.
Even outside of the intellectual property context, a
foreign corporation’s decision to advertise and sell its
products in the forum state is an important, often dis-
positive, factor in establishing personal jurisdiction.
The United States Supreme Court has explained that
a company that chooses to direct its products into a
particular market not only has ‘‘clear notice’’ that it
may face legal action in that state sounding in product
liability, unfair competition, or other legal theories, but
also ‘‘can act to alleviate the risk of burdensome litiga-
tion by procuring insurance, passing the expected costs
on to customers, or, if the risks are too great, severing its
connection with the [s]tate.’’ World-Wide Volkswagen
Corp. v. Woodson, supra, 444 U.S. 297. This principle
applies not only in so-called ‘‘stream of commerce’’
product liability cases, such as World-Wide Volkswagen
Corp.,26 but also in contract actions in which the product
is the subject of or relates to the contract at issue. See
Eason v. Linden Avionics, Inc., 706 F. Supp. 311, 323
(D.N.J. 1989); see also, e.g., Sky Motor Cars v. Auto
Sport Designs, Inc., Docket No. 09-4055, 2012 WL
3024006, *4 (E.D. Pa. July 23, 2012) (‘‘[w]hen a defendant
makes a conscious choice to conduct business with the
residents of a forum state, it has clear notice that it is
subject to suit there’’ (internal quotation marks omit-
ted)); Julia Cosmetics, Inc. v. National Broadcasting
Co., 355 F. Supp. 938, 944 (W.D. La. 1973) (applying
principle in context of licensing agreement).
Sales of a product in the forum assume a heightened
importance in the context of an intellectual property
dispute, insofar as it is often the use of the patent
or trademark in commerce that forms the core of the
dispute. See, e.g., Breckenridge Pharmaceutical, Inc.
v. Metabolite Laboratories, Inc., 444 F.3d 1356, 1365
(Fed. Cir. 2006) (‘‘a defendant’s obligations under an
exclusive license agreement may subject it to personal
jurisdiction in the forum state even if the licensee is
not incorporated or headquartered in the forum state,
so long as the exclusive licensee conducts business
there’’); Duck Commander, Inc. v. TNP Productions,
Inc., Docket No. 10-1790, 2011 WL 4973880, *4 (W.D.
La. September 12, 2011) (‘‘it is the use in commerce of
a registered mark that gives rise to liability’’ (footnote
omitted)), report and recommendation adopted, 2011
WL 4973828 (W.D. La. October 19, 2011); SRAM Corp.
v. Sunrace Roots Enterprise Co., Ltd., 390 F. Supp. 2d
781, 787 (N.D. Ill. 2005) (sales of competing product to
forum state customers were sufficient minimum con-
tacts); Sollinger v. Nasco International, Inc., 655 F. Supp.
1385, 1386, 1388–89 (D. Vt. 1987) (offering of copy-
righted books for sale in forum was sufficient to estab-
lish jurisdiction); Kmart Properties, Inc. v. Taxation &
Revenue Dept., 139 N.M. 177, 183, 131 P.3d 27 (2001)
(‘‘[b]y allowing its [trademarks] to be used in New Mex-
ico to generate income, [the plaintiff] purposefully
avail[ed] itself of the benefits of an economic market
in the forum’’ (internal quotation marks omitted)), rev’d
on other grounds sub nom. Kmart Corp. v. Taxation &
Revenue Dept., 139 N.M. 172, 131 P.3d 22 (2005). This
principle holds true regardless of whether the cause of
action sounds in breach of contract, as when use of
the intellectual property is subject to a licensing agree-
ment, or in tort, as with an infringement claim under
the Lanham Act, 15 U.S.C. § 1051 et seq., or a state
equivalent. See, e.g., Connecticut Community Bank v.
Bank of Greenwich, 578 F. Supp. 2d 405, 412 (D. Conn.
2008) (trademark infringement or unfair competition in
violation of Lanham Act is automatic CUTPA violation).
Under the licensing agreement, B&M acquired the right
to use North Sails’ valuable, market leading trade name
to advertise and promote B&M’s own products. And,
when B&M markets and sells its products in a state
using the North Sails trade name, that is about as funda-
mental of a contact as there can be. B&M is reaching
out to Connecticut consumers, displaying the brand
here, and staking a claim against anyone else who might
try to use the brand in Connecticut without authoriza-
tion, all while earning royalties on Connecticut sales
for North Sails.
Two points warrant emphasis in this regard. First,
the fact that the products were distributed through B&M
affiliates makes no difference in the constitutional anal-
ysis, particularly on the facts of this case. As the United
States Supreme Court indicated in World-Wide Volks-
wagen Corp., it does not matter for constitutional pur-
poses whether a foreign manufacturer sells its products
directly to consumers in the forum state or avails itself
of the market indirectly through an established distribu-
tion channel. See World-Wide Volkswagen Corp. v.
Woodson, supra, 444 U.S. 297; see also Beverly Hills
Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1565
(Fed. Cir.) (‘‘[The] defendants purposefully shipped the
[product] into Virginia through an established distribu-
tion channel. The cause of action for patent infringe-
ment is alleged to arise out of these activities. No more
is usually required to establish specific jurisdiction.’’),
cert. dismissed, 512 U.S. 1273, 115 S. Ct. 18, 129 L. Ed.
2d 917 (1994); Akeva LLC v. Mizuno Corp., 199 F. Supp.
2d 336, 341 (M.D.N.C. 2002) (establishment by foreign
corporation of independent subsidiary in nonforum
state to sell trademarked products in United States,
including in forum state, was deemed sufficient to
establish minimum contacts); Aluminum Housewares
Co. v. Chip Clip Corp., 609 F. Supp. 358, 361 (E.D. Mo.
1984) (jurisdiction attached when all sales to forum
were through independent manufacturer’s representa-
tive); L. Graham, ‘‘The Personal Jurisdiction Effect of
Notifications on Infringement,’’ 78 J. Pat. & Trademark
Off. Society 858, 864 (1996) (‘‘it . . . makes no differ-
ence whether the defendant’s sales are made directly
or through a distributor’’).
These cases show that the choice of business model,
whether selling directly, through a sister company, or
using an independent distributor, does not shield a for-
eign defendant from jurisdiction if it chooses to make
use of the licensed intellectual property in the forum
state. In Beverly Hills Fan Co. v. Royal Sovereign Corp.,
supra, 21 F.3d 1558, for example, the Court of Appeals
found that sales of the infringing product into the forum
were sufficient to confer jurisdiction, notwithstanding
that the plaintiff had alleged only that the products had
been sold via intermediaries, such as an independent
building products retailer. See id., 1563, 1565. Accord-
ingly, B&M’s choice to supply the Connecticut surf
products market through a sister distribution company,
and with the assistance of North Sails, rather than
directly from Austria, is of no moment; B&M was, never-
theless, conducting business in Connecticut. Indeed,
the parties’ licensing agreement expressly applied to
sales of the licensed products to B&M’s affiliates and
dealers, as well as direct-to-consumer sales. The agree-
ment even specifically established pricing/royalty levels
for sales to affiliates with principal operations in the
United States, of which Boards & More, Inc., is the
only one. Accordingly, B&M’s sales of its products to
Connecticut customers via Boards & More, Inc., clearly
arise from and directly implicate the licensing agree-
ment.
The majority attempts to blunt the import of B&M’s
Connecticut sales in various ways, none of which sur-
vives scrutiny. The majority appears to take the position
that, if the plaintiff did not specifically allege that either
it or Boards & More, Inc., has served as B&M’s distribu-
tor in Connecticut, then we cannot assume that B&M’s
acknowledged Connecticut sales went through those
channels. The majority takes this to mean that B&M
itself had no Connecticut sales. See footnote 28 of the
majority opinion and accompanying text. The flaws in
this argument are numerous.
As I stated, North Sales has alleged that it marketed
and sold not only B&M products but the licensed prod-
ucts in Connecticut under the auspices of the contrac-
tual relationship. B&M has not denied or refuted that
allegation. In fact, Eberle conceded in his affidavit that
the Boards & More group’s Connecticut sales consisted
of sales by Boards & More, Inc., to North Sails. Accord-
ingly, both parties agree that North Sails was part of
B&M’s distribution network for Connecticut, and there
is no dispute that the licensed products were among
those sold through that channel.
Nevertheless, the majority concludes that B&M’s
Connecticut product sales are not relevant to the consti-
tutional analysis for three reasons, each of which is
contradicted by the trial record. First, the majority con-
tends that ‘‘[t]he record is void of any direct link
between [Boards & More, Inc.] and B&M . . . .’’ Part
II B of the majority opinion. That statement is contra-
dicted by Eberle’s own concession, in his affidavit, that
‘‘[B&M’s] only sales in the [United States] occur as
direct sales to Boards & More, Inc. . . . .’’ (Emphasis
added.) Eberle’s statement that B&M had ‘‘direct sales’’
to its American counterpart is reproduced twice in the
appendix to B&M’s brief; the majority fails to explain
how a direct sale from one company to its own corpo-
rate sister company falls short of a ‘‘direct link.’’ Second,
the majority contends that ‘‘there is no allegation or
evidence that [Boards & More, Inc.] is B&M’s distribu-
tor.’’ Part II B of the majority opinion. Before the trial
court, however, B&M conceded that ‘‘[Boards & More,
Inc.] is [the] distributor of the Boards & More group’s
branded products (i.e. . . . NorthSails Windsurfing) in
Canada and the USA.’’ The record also is clear that B&
M, the primary defendant in this action, is the company
within the Boards & More group that produces the
‘‘NorthSails Windsurfing’’ licensed products. There
really is no question that Boards & More, Inc., is B&M’s
distributor. The majority fails to acknowledge or account
for this record evidence. Third, although its reasoning
is never spelled out, the majority appears to be of the
view that, even if B&M sells its products solely to
Boards & More, Inc., in the United States, and even if
Boards & More, Inc., distributes those products in the
United States, and even if those products—including
the licensed products—are sold in Connecticut, we can-
not be sure that Boards & More, Inc., is the one that
distributes those products in Connecticut. I assume the
theory here is that Boards & More, Inc., might sell the
products to, say, Walmart, which, in turn, distributes
them in Connecticut. This theory fails to abide by the
legal standard obliging us to draw reasonable inferences
in favor of North Sails rather than against it. The theory
also is directly contradicted by the trial record. Eberle
declared that the Boards & More group’s Connecticut
sales consist of sales ‘‘direct[ly]’’ from Boards & More,
Inc., to the plaintiff; (emphasis added); which is consis-
tent with Whidden’s own declaration that North Sails
sells and markets the licensed products in Connecticut
as part of the contractual relationship. Indeed, the
licensing agreement itself bars anyone except B&M and
its corporate affiliates from distributing the licensed
products to dealers and consumers. In sum, there sim-
ply is no basis for concluding, in the face of B&M’s
own repeated admissions, that it did not distribute its
products to the Connecticut market via Boards & More,
Inc., and North Sails.
Second, I am not persuaded by B&M’s argument that
sales of its products in Connecticut, which account for
a small share of the company’s global revenues, were
de minimis and, therefore, cannot provide a basis for
personal jurisdiction. In the present case, it is undis-
puted that the Boards & More group, with the assistance
of North Sails, logged product sales of approximately
$4500 in Connecticut in 2017. Particularly in the trade-
mark licensing arena, the volume of sales is largely
immaterial because, simply by selling a trademarked
product in the forum state, the seller (1) avails itself
of the protections afforded by the state’s competition
and trademark protection laws,27 and (2) simultane-
ously exposes itself to potential litigation in the state
should it be accused of infringement or the like. See,
e.g., Chloé v. Queen Bee of Beverly Hills, LLC, supra,
616 F.3d 165–66 (single shipment of counterfeit item
into forum conferred jurisdiction); Neogen Corp. v. Neo
Gen Screening, Inc., 282 F.3d 883, 886–87, 891–92 (6th
Cir. 2002) (holding that District Court erred in dismiss-
ing trademark infringement action for lack of personal
jurisdiction when defendant’s principal contact with
forum was sale of fourteen medical test kits, notwith-
standing that those sales represented insignificant per-
centage of defendant’s total annual global sales of
215,000 kits); Sarvint Technologies, Inc. v. OMsignal,
Inc., supra, 161 F. Supp. 3d 1262–63 (‘‘multiple courts
have found personal jurisdiction over a patent defen-
dant based on a single sale or minimal sales of the
accused product’’); Patterson v. Fendrich Industries,
Inc., Docket No. CIV-01-0006 RLP/WWD, 2001 WL
37125385, *1, *4–5 (D.N.M. August 28, 2001) (finding
that defendant was subject to personal jurisdiction in
New Mexico primarily on basis of two sales of allegedly
infringing products to forum residents amounting to
$787.50, or 0.0023 percent of defendant’s total annual
revenues, and rejecting argument that sales were de
minimis); Aluminum Housewares Co. v. Chip Clip
Corp., supra, 609 F. Supp. 361 (product sales to forum
of $3553 over six month period, accounting for 0.5 per-
cent of defendant’s total national sales, subjected defen-
dant to jurisdiction of forum courts); see also Digital
Equipment Corp. v. AltaVista Technology, Inc., 960
F. Supp. 456, 472 (D. Mass. 1997) (‘‘in the context of
trademark infringement, it has long been the law that
harm is caused by the very offer of an infringing work,
even if not one single sale is made’’ (emphasis omitted));
L. Graham, supra, 78 J. Pat. & Trademark Off. Society
865 (‘‘[T]he quantity of sales required before minimum
contacts are established is not great. . . . Courts have
. . . not been persuaded [by the argument] that a virtu-
ally negligible percentage of the defendant’s overall
sales have been made in the forum state.’’). The fact
that B&M logged product sales—including the licensed
products—of approximately $4500 to the Connecticut
market in 2017, and also advertised the licensed prod-
ucts to consumers in this state via North Sails, was
sufficient to invoke the trial court’s jurisdiction. See,
e.g., Patterson v. Fendrich Industries, Inc., supra, *1,
*3–4.
2
The majority also declines to consider the provisions
of the licensing agreement that obligate B&M to assist
North Sails should the latter either initiate or be drawn
into litigation regarding the North Marks. See footnote
29 of the majority opinion. Those provisions are rele-
vant to the constitutional analysis because they leave
no room for doubt that B&M understood from the outset
that it could be haled into court in Connecticut and
that it freely consented to that arrangement.28
The pertinent facts are as follows. Paragraph 9 of the
licensing agreement provides in relevant part:
‘‘Infringements:
‘‘(a) B&M shall cooperate fully and in good faith with
[North Sails] to secure and preserve, and to procure
protection of, [North Sails’] right, title and interest in
and to the [North Marks]. B&M agrees to inform [North
Sails] promptly in writing of any possible infringement
or imitations of, or unfair competition affecting the
[North Marks] which comes to the attention of B&M.
In the event [North Sails] decides to take action against
any such possible infringement or acts of unfair compe-
tition, B&M agrees to assist [North Sails] in whatever
reasonable manner [North Sails] may direct at the
expense of [North Sails]. . . .
‘‘(b) Should either party be involved as a defendant
in judicial action with respect to the [North Marks],
the parties agree to cooperate in each other’s defense
to the greatest extent reasonably possible.’’ (Emphasis
added.)
Paragraph 10 (a) further provides in relevant part:
‘‘B&M hereby agrees to indemnify, defend and hold
[North Sails] harmless from any loss, actions, suits,
claims liability, damages cost or expense (including,
without limitation, reasonable attorneys fees), arising
out of (i) any unauthorized use by B&M of the [North
Marks]; and (ii) any claims, suits or actions brought
against [North Sails] or any affiliate thereof arising
out of the [l]icensed [p]roducts or other products
or failures by B&M to act relating to the conduct of its
business. . . .’’ (Emphasis added.) Finally, paragraph
5 (c) of the agreement provides in relevant part: ‘‘B&M
agrees to assist [North Sails] upon request from [North
Sails] to the extent necessary to protect and procure
protection for [North Sails’] rights to the [North Marks],
including execution, formalization and filing of any legal
documents . . . .’’
As with paragraph 6 (c) of the agreement relating to
North Sails’ right to require B&M to send product sam-
ples and documents into Connecticut for inspection,
these contractual provisions should weigh heavily in
the minimum contacts analysis because they made it
readily foreseeable to B&M that it could be haled into
Connecticut—indeed, in this context, a Connecticut
courtroom—on the basis of its contractual obligations
to assist North Sails in the prosecution or defense of
a very broad range of possible trademark related law-
suits, litigation that obviously could occur in North
Sails’ home state, Connecticut. Although a contractual
commitment by a foreign defendant to assist a forum
resident in litigation does not carry the same signifi-
cance as a forum selection clause, which can operate as
a waiver of a party’s due process rights in the personal
jurisdiction context; see Burger King Corp. v. Rudzew-
icz, supra, 471 U.S. 472 n.14; it does tend to establish
that the foreign corporation foresaw, and was amenable
to the possibility, that it might become engaged in litiga-
tion in the forum state. See, e.g., Breckenridge Pharma-
ceutical, Inc. v. Metabolite Laboratories, Inc., supra,
444 F.3d 1366; Genetic Implant Systems, Inc. v. Core-
Vent Corp., 123 F.3d 1455, 1459 (Fed. Cir. 1997); see
also Beloteca, Inc. v. Apicore US LLC, Docket No. 19
CV 00360, 2019 WL 1516943, *5 (N.D. Ill. April 8, 2019)
(‘‘[the defendant] cannot credibly claim surprise that
it has been sued in Illinois, given its execution of an
exclusive licensing agreement that pledges cooperation
with . . . an Illinois corporation’’).
This court recently applied these same principles to
find that personal jurisdiction existed over a company
domiciled in New York, albeit in the distinct context
of a subrogation action against an automobile liability
insurer. See Samelko v. Kingstone Ins. Co., 329 Conn.
249, 184 A.3d 741 (2018). In Samelko, the defendant
insurer was not licensed to and did not conduct any
business in Connecticut, the insured was a New York
resident, and the defense clause in the policy made no
specific mention of Connecticut, merely obligating the
insurer to defend the insured against any action arising
from any accident within the designated coverage terri-
tory of the United States. See id., 252–53. Indeed, the
only nexus between the defendant insurer and this state
was the happenstance that the insured was involved in
a collision while driving in Stamford. See id., 253. We
nonetheless held that jurisdiction was proper, explain-
ing that, ‘‘[b]ecause the defendant obligated itself to
provide a legal defense in Connecticut, it should have
reasonably anticipated being haled into a Connecticut
court when a dispute arose over the performance or
nonperformance of its obligations. The defendant’s
promise to provide a defense—entailing acts such as
interviewing witnesses, taking depositions, meeting
with opposing counsel, and litigating in court—pur-
posefully availed it of the privilege of conducting activi-
ties within this forum.’’ Id., 266–67. In the present case,
B&M knowingly committed itself to assist in the legal
defense or trademark prosecution of a company that
was domiciled in Connecticut under circumstances
making it eminently foreseeable that any third party
seeking to bring a trademark infringement or unfair
competition claim against North Sails could do so in
North Sails’ home state. For these reasons as well, I
would conclude that jurisdiction over B&M is proper.
IV
I also am concerned that the result reached by the
majority will compromise our state’s legitimate efforts
to provide a forum for Connecticut residents to seek
redress when they have been wronged by foreign corpo-
rations. The due process calculus is not confined to the
interests of the defendant. Rather, it is well established
that the proper constitutional analysis also must take
account of Connecticut’s ‘‘manifest interest in providing
its residents with a convenient forum for redressing
injuries inflicted by out-of-state actors.’’ (Internal quota-
tion marks omitted.) Burger King Corp. v. Rudzewicz,
supra, 471 U.S. 473; see also B & J Mfg. Co. v. Solar
Industries, Inc., 483 F.2d 594, 598–99 (8th Cir. 1973)
(‘‘Minnesota most certainly has an interest in providing
a forum for a resident who claims that a foreign corpora-
tion is attempting to prevent it from manufacturing and
marketing its product’’), cert. denied, 415 U.S. 918, 94
S. Ct. 1417, 39 L. Ed. 2d 473 (1974); Akeva LLC v. Mizuno
Corp., supra, 199 F. Supp. 2d 341 (stating, in patent
infringement case, that forum state ‘‘has a significant
interest in providing a forum for its residents’’); Richmar
Development, Inc. v. Midland Doherty Services,
Ltd., 717 F. Supp. 1107, 1120 (W.D.N.C. 1989) (‘‘North
Carolina and this [d]istrict have strong interests in pro-
tecting the corporate entities that are contributing to
the economic well-being of the area’’); Aquarium Phar-
maceuticals, Inc. v. Industrial Pressing & Packaging,
Inc., 358 F. Supp. 441, 445 (E.D. Pa. 1973) (‘‘States
have always had a legitimate and substantial interest
in safeguarding the rights and property of their citizens.
It is not unreasonable for them to expect foreign [busi-
nesses that] involve themselves, to one degree or
another, in commercial transactions with citizens of
their state to accept the corresponding burden of
accepting service and defending themselves in a court
of that state.’’); G. Miller, ‘‘In Search of the Most Ade-
quate Forum: State Court Personal Jurisdiction,’’ 2 Stan.
J. Complex Litig. 1, 7 (2014) (‘‘[a]lthough the [United
States] Supreme Court has never fully explained exactly
how the minimum contacts test implements the require-
ments of due process, the answer appears to be the
following: the minimum contacts inquiry, which focuses
on the relationship between the defendant, the forum,
and the litigation, balances between the interests of the
defendant in avoiding answering in the forum state’s
courts and the interest of the forum state in calling
the defendant to account there’’ (footnotes omitted;
internal quotation marks omitted)).
To the extent that the majority would place the onus
on the plaintiff to negotiate for the inclusion of a forum
selection clause if it wishes to be able to litigate any
contractual claims in Connecticut, that is not the law.
See footnote 15 of the majority opinion. Far from being
necessary to ensure that a party will be able to vindicate
its interests in its home courts, forum selection clauses
are not typical in commercial contracts between parties
of relatively equal bargaining power. Until relatively
recently, in fact, they were widely deemed to be unen-
forceable as contrary to public policy. See, e.g., Reiner,
Reiner & Bendett, P.C. v. Cadle Co., 278 Conn. 92,
100–101, 897 A.2d 58 (2006) (discussing history). In
Connecticut, as elsewhere, the obstacles to enforcing
such clauses have eroded significantly since the United
States Supreme Court decided Bremen v. Zapata Off-
Shore Co., 407 U.S. 1, 92 S. Ct. 1907, 32 L. Ed. 2d 513(1972), which held that, under appropriate circum-
stances, forum selection clauses are enforceable in
admiralty. See id., 12–15. I am not aware of any author-
ity, however, to the effect that the pendulum has swung
so far in the other direction that a contracting party
entering into a long-term business relationship must
negotiate for a contractual forum selection clause in
order to have the right to vindicate its rights in its home
state. To the contrary, a plaintiff in those circumstances
should presumptively be entitled to seek to vindicate
its rights in the state in which it performs its contractual
obligations and suffers harm as a result of the alleged
breach. Should a party wish to limit its potential expo-
sure to suit in foreign venues, the onus should be on
that party to negotiate for the right to be sued only in
a chosen forum.29 The majority turns this commonsense
arrangement on its head, without authority or explana-
tion.
As I discussed, Burger King emphasized the need to
conduct the due process analysis in a way that recog-
nizes and respects the realities of the commercial world.
I see no reason why we should disregard those commer-
cial realities, as articulated in an amicus curiae brief
filed in the present case by the Connecticut Business
and Industry Association, and adopt a default rule that
requires Connecticut residents to bargain for the right
to litigate claims in their home courts when jurisdiction
is otherwise proper.
V
For all of the foregoing reasons, I would hold that
B&M had more than sufficient contacts with Connecti-
cut for personal jurisdiction to attach.30 We have explained
that the primary rationale for the purposeful availment
requirement is to ensure that a defendant will not be
forced to defend itself in a jurisdiction solely as a result
of ‘‘random, fortuitous, or attenuated contacts . . . or
of the unilateral activity of another party or a third
person . . . .’’ (Internal quotation marks omitted.)
Cogswell v. American Transit Ins. Co., 282 Conn. 505,
530, 923 A.2d 638 (2007). That simply is not the case
here. B&M (1) sought to step into an existing contrac-
tual relationship with North Sails, (2) negotiated a new
agreement knowing that North Sails would perform
its obligations from and suffer any consequences in
Connecticut, (3) agreed to send regular financial
reports, product samples, and marketing materials to
Connecticut for review, (4) submitted itself to various
forms of oversight by North Sails, (5) sent an executive
to Connecticut for an on-site visit, (6) engaged in hun-
dreds of substantive mail, telephonic, and electronic
communications with North Sails in the context of nego-
tiating and amending the licensing agreement, conduct-
ing business over the course of eighteen years and dis-
cussing B&M’s desire at various points in time to alter
and then sever the agreement, (7) marketed and sold
thousands of dollars of the licensed products in Con-
necticut, and (8) agreed to assist North Sails in any
litigation arising from the licensing agreement, without
restriction as to the forum.
I recognize that, for reasons that are not immediately
apparent, North Sails did not brief on appeal the argu-
ments discussed in part III F of this opinion. The fact
that B&M’s licensed products were marketed and sold
in Connecticut was raised and briefed before the trial
court and discussed in its memorandum of decision.
No one, however, appears to have addressed the signifi-
cance of the contractual provisions that committed
B&M to assist North Sails in litigation. Although it is
important to understand that those arguments are not
essential to my opinion—as I have discussed, the con-
tacts that the parties have fully briefed are more than
enough to establish jurisdiction—I have considered
these additional points for three reasons.
First, as I discussed in part I of this opinion, it is
well established that a reviewing court must examine
a party’s minimum contacts with a forum state de novo,
after having conducted an independent review of the
entire record. I am not aware of any authority sug-
gesting that a court conducting a jurisdictional analysis
of this nature—having concluded that a full, totality of
the circumstances analysis of the relevant facts of
record was warranted—should not evaluate all of the
unrebutted factual allegations made by the plaintiff.
Second, I feel compelled to correct various factual
errors in the majority opinion, including the assertion
that B&M had no product sales in Connecticut. Third,
although it is impossible to know why North Sails failed
to discuss these points in its appellate briefing, that
choice or oversight presumably reflects the fact that
North Sails’ primary focus in its brief was to establish
the predicate point that the trial court misapplied Bris-
tol-Myers Squibb Co., a point on which the majority
and I are in agreement. Having concluded that the trial
court applied the incorrect legal standard and, thus,
failed to fully consider all of the relevant factual allega-
tions, the majority should either (1) conduct its own
complete review of the record; see, e.g., Frazer v. McGo-
wan, 198 Conn. 243, 250, 502 A.2d 905 (1986) (when
trial court has applied incorrect legal standard, appel-
late court reviews undisputed facts disclosed on record
to determine whether personal jurisdiction exists); or
(2) remand the case to give the trial court an opportunity
to apply the correct legal standard in the first instance.
See, e.g., Frederiksson v. HR Textron, Inc., 484 Fed.
Appx. 610, 613 (2d Cir. 2012) (concluding that District
Court improperly dismissed action for forum nonconve-
niens under incorrect legal standard and remanding
case for consideration under correct standard); State
v. Swebilius, 325 Conn. 793, 815, 159 A.3d 1099 (2017)
(directing Appellate Court to reverse judgment of trial
court denying motion to dismiss and to remand case
to give parties opportunity to argue case under correct
legal standard); Southwest Appraisal Group, LLC v.
Administrator, Unemployment Compensation Act,
324 Conn. 822, 844–45, 155 A.3d 738 (2017) (remanding
case to give board opportunity to apply correct legal
standard); Raser Technologies, Inc. v. Morgan Stan-
ley & Co., LLC, supra, 449 P.3d 164–65 (concluding that
trial court applied incorrect legal standard in dismissing
action for lack of personal jurisdiction and remanding
case to allow that court to perform proper analysis of
record in first instance). In either event, North Sails,
as the plaintiff, is entitled to have the record evaluated
under the correct legal standard.
Because the majority does not afford the trial court
the opportunity to conduct a proper constitutional anal-
ysis and, in conducting its own analysis, overlooks key
portions of the record, relevant legal principles, and
the overwhelming weight of federal and sister state
authority, I respectfully dissent.
1
The defendants in this case are B&M and Emeram Capital Partners
GmbH (Emeram), a private equity investment limited liability company with
its principal place of business in Munich, Germany. As the majority notes;
see footnote 5 of the majority opinion; the plaintiff’s sole theory of liability
against Emeram is that it is the alter ego of B&M. For the sake of simplicity,
all references to the defendant are to B&M.
2
In fact, the relationship grows directly out of a business venture between
the plaintiff and B&M’s predecessor in interest tracing back to 1990.
3
Indeed, although in practice many cases will involve factual disputes,
the majority has failed to identify a single case—and my own research has
not revealed one—that specifically states that the prima facie standard
applies only when material jurisdictional facts are in dispute. Literally scores
of cases, by contrast, articulate the unqualified rule that, in the absence of
an evidentiary hearing, a plaintiff need only make a prima facie showing
that jurisdiction is proper. Nor does the majority offer any rationale for why
the burden on the plaintiff would be lower when the defendant has actively
contested jurisdiction than when the facts alleged by the plaintiff go undis-
puted.
4
The majority attempts to distinguish Designs for Health, Inc., because,
in that case, some facts were in dispute. See part II A of the majority opinion.
This factor bears no relevance to the proposition for which I cite the case.
The Appellate Court in Designs for Health, Inc., very clearly articulated
and adopted the prevailing constitutional standard applied by the United
States Court of Appeals for the Second Circuit and the other federal courts
when a foreign defendant challenges the trial court’s personal jurisdiction
but no evidentiary hearing is requested or held. See Designs for Health,
Inc. v. Miller, supra, 187 Conn. App. 12–13. In such a circumstance—i.e.,
precisely the circumstance in both Designs for Health, Inc., and the present
case—the plaintiff need only make a prima facie showing that jurisdiction
is proper.
5
If there were any doubt, the United States Supreme Court clarified in
Ford Motor Co. that Bristol-Myers Squibb Co. stands only for the proposition
that due process requires that there be some ‘‘connection between the forum
and the specific claims at issue . . . .’’ (Internal quotation marks omitted.)
Ford Motor Co. v. Montana Eighth Judicial District Court, supra, 141 S.
Ct. 1031.
6
Courts have emphasized in this respect that establishing that the defen-
dant’s contacts with the forum state arise from or are related to the cause
of action is a relaxed, flexible, and lenient standard. See, e.g., Avocent
Huntsville Corp. v. Aten International Co., Ltd., 552 F.3d 1324, 1330–31
(Fed. Cir. 2008), cert. denied, 557 U.S. 904, 129 S. Ct. 2796, 174 L. Ed. 2d
292 (2009); Air Products & Controls, Inc. v. Safetech International, Inc.,
503 F.3d 544, 553 (6th Cir. 2007); Ticketmaster-New York, Inc. v. Alioto, 26
F.3d 201, 206 (1st Cir. 1994); see also Russell v. SNFA, 987 N.E.2d 778, 797
(Ill.) (citing cases), cert. denied, 571 U.S. 886, 134 S. Ct. 295, 187 L. Ed. 2d
152 (2013); L. Graham, ‘‘The Personal Jurisdiction Effect of Notifications
of Infringement,’’ 78 J. Pat. & Trademark Off. Society 858, 863 (1996) (relat-
edness requirement is easily satisfied); G. Miller, ‘‘In Search of the Most
Adequate Forum: State Court Personal Jurisdiction,’’ 2 Stan. J. Complex
Litig. 1, 21 (2014) (‘‘ ‘[m]inimum’ in [the personal jurisdiction] context means
both that the required contacts need only exceed a certain threshold, and
also that the threshold is not demanding’’).
7
Courts consistently have held that the duration of the contractual rela-
tionship, as well as its quality, has legal significance. See, e.g., Financial
Software Systems, Inc. v. Questrade, Inc., Docket No. 18-742, 2018 WL
3141329, *5 (E.D. Pa. June 27, 2018) (‘‘[t]he longer the duration of a contract,
the more likely that a party is subject to the personal jurisdiction of its
counterparty’s forum state’’); Blessey Marine Services, Inc. v. Jeffboat, LLC,
Docket No. 10-1863, 2012 WL 12986645, *5 (E.D. La. March 30, 2012)
(‘‘because the [p]laintiff has presented evidence that [the] [d]efendant’s
contacts at issue go beyond a single [onetime] purchase of goods, the [c]ourt
may consider the duration of the relationship between the parties’’); Lively
v. IJAM, Inc., 114 P.3d 487, 497 (Okla. Civ. App. 2005) (‘‘factors such as
the duration of a defendant’s relationship with the forum state must be
considered’’). The duration of the contractual relationship matters because
the relevant due process (i.e., minimum contacts) principles will apply very
differently to a foreign defendant who makes a single purchase from a
Connecticut business on one occasion as compared to a foreign defendant
who enters into a contractual relationship with a Connecticut business and
annually engages in hundreds of thousands of dollars of trade pursuant to
that contract over a period of eighteen years.
Moreover, it is clear that the anticipated duration of a contractual relation-
ship, and not merely the actual duration, can support a finding of minimum
contacts. Numerous cases treat as an important factor the fact that the
parties anticipated entering into a relationship of substantial duration, even
though the lengthy duration was cut short by unanticipated events. See,
e.g., Citadel Group Ltd. v. Washington Regional Medical Center, 536 F.3d
757, 764 (7th Cir. 2008) (‘‘although the parties had not finalized a long-term
relationship yet, during the months prior to closing they were certainly
contemplating that one would exist’’); Brookfield Machine, Inc. v. Calbrit
Design, 929 F. Supp. 491, 495, 499 (D. Mass. 1996) (anticipated three year
duration of agreement supported finding of jurisdiction, notwithstanding
fact that relationship was terminated after less than six months); McKesson
Corp. v. Hackensack Medical Imaging, 197 N.J. 262, 278, 962 A.2d 1076(2009) (relying on fact that ‘‘[the] defendant entered into what was intended
to be a long-term commercial relationship with [the] plaintiff’’); Harrelson
Rubber Co. v. Layne, 69 N.C. App. 577, 583, 317 S.E.2d 737 (1984) (it was
important that ‘‘the parties anticipated they would have a long, profitable
relationship’’ rather than isolated transactions (internal quotation marks
omitted)). This principle flows directly from the United States Supreme
Court’s statement in Burger King that the ‘‘contemplated future conse-
quences’’ of a contractual relationship can be important minimum contacts.
Burger King Corp. v. Rudzewicz, supra, 471 U.S. 479; see, e.g., Citadel
Group Ltd. v. Washington Regional Medical Center, supra, 764 (applying
Burger King).
8
The majority contends, and I agree, that the mere fact that a foreign
defendant has entered into a contract with a resident of the forum state
does not, ipso facto, create the minimum contacts necessary for personal
jurisdiction to exist. The majority fails, however, to acknowledge Burger
King’s fundamental distinction between the mere act of contracting with a
forum resident and entering into a contractual relationship that creates
continuing obligations to residents of the forum state. To the extent that
the majority’s position is that Burger King requires that a defendant create
continuing obligations with forum residents other than the plaintiff for
jurisdiction to be proper, that proposition is unsupported by any precedent
and is belied by Burger King itself, as well as the many cases cited in
footnote 12 of this opinion.
9
The majority seeks to distinguish McGee, in which the United States
Supreme Court held that jurisdiction attached when an out-of-state resident
entered into a long-term contract with a single forum resident, by noting
that McGee involved an insurance contract, but the majority offers no expla-
nation as to why that distinction makes a difference. See footnote 14 of the
majority opinion. The majority also notes that McGee predated Walden. See
id. True enough, but Walden never even remotely suggests that the decision
in that case either overrules McGee or reshapes the law of personal jurisdic-
tion. See, e.g., Curry v. Revolution Laboratories, LLC, 949 F.3d 385, 396
(7th Cir. 2020) (‘‘[i]n the last decade, the [United States] Supreme Court
has confirmed that the inquiry into specific jurisdiction has not changed’’),
citing Walden v. Fiore, supra, 571 U.S. 291.
10
Though not entirely. See part III F of this opinion.
11
See part III C of this opinion (North Sails had right to require B&M to
send products and materials into Connecticut for inspection).
12
See, e.g., Benton v. Cameco Corp., 375 F.3d 1070, 1078 (10th Cir. 2004)
(‘‘When [the defendant] negotiated and entered into the [memorandum of
understanding] in 1994, it voluntarily and knowingly entered into a relation-
ship with a Colorado resident. Thus, [the defendant] purposefully directed
[its] activities at residents of the forum . . . .’’ (Internal quotation marks
omitted.)), cert. denied, 544 U.S. 974, 125 S. Ct. 1826, 161 L. Ed. 2d 723(2005); Cole v. Mileti, 133 F.3d 433, 436 (6th Cir.) (‘‘[when] a nonresident
defendant transacts business by negotiating and executing a contract via
telephone calls and letters to an Ohio resident, then the defendant has
purposefully availed himself of the forum by creating a continuing obligation
in Ohio’’), cert. denied, 525 U.S. 810, 119 S. Ct. 42, 142 L. Ed. 2d 32 (1998);
Grand Entertainment Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476,
482–83 (3d Cir. 1993) (holding that jurisdiction was proper when defendant
‘‘engaged in negotiations for an agreement that would have created rights
and obligations among citizens of the forum and contemplated significant
ties with the forum’’); Associated Business Telephone Systems Corp. v.
Greater Capital Corp., 861 F.2d 793, 797 (3d Cir. 1988) (‘‘by entering into
a [long-term] contract [the defendant] had created continuing obligations
between itself and [the plaintiff], a business located in New Jersey’’); Missis-
sippi Interstate Express, Inc. v. Transpo, Inc., 681 F.2d 1003, 1008 (5th Cir.
1982) (‘‘the [nonresident] defendant . . . by contracting with . . . the resi-
dent plaintiff . . . is considered to have purposefully availed itself of the
privilege of conducting activities within the forum if it was reasonably
foreseeable that [the resident plaintiff] would in fact perform a material
part of its contractual obligations within the forum state’’); In re Customs &
Tax Administration of the Kingdom of Denmark (SKAT) Tax Refund
Litigation, Docket Nos. 18-cv-5053 (LAK) and 18-md-2865 (LAK), 2020 WL
70938, *1 (S.D.N.Y. January 7, 2020) (‘‘[b]y engaging in a long-term business
relationship with a New York entity, [the defendant] purposefully availed
itself of the benefits of doing business in New York’’); Western Dental
Services, Inc. v. Media Direct, Inc., Docket No. SA CV 19-0318-DOC (JDEx),
2019 WL 6998762, *5 (C.D. Cal. July 19, 2019) (‘‘[b]ecause [the] [p]laintiff
has adequately established the existence of a [multiyear] contract between
[the] [p]laintiff and [the] [d]efendant, which was targeted at a California
corporation and from which [the] [d]efendant benefitted, the [c]ourt finds
the [d]efendant purposefully availed itself of the forum state’’); Maine Com-
munity Health Options v. Walgreen Co., Docket No. 18-mc-0009, 2018 WL
6696042, *5 (W.D. Wis. December 20, 2018) (‘‘[g]iven that [the defendant]
purposely availed itself of the opportunity to do business with a Wisconsin
company and to communicate with that company on a regular basis, it
should reasonably have expected that it could be haled into a Wisconsin
court’’); Venuto v. Atlantis Motor Group, LLC, Docket No. 17-3363 (RBK/
KMW), 2018 WL 2134035, *3 (D.N.J. May 9, 2018) (‘‘[the defendant] purpose-
fully availed itself of the forum when it decided to engage in business with
a New Jersey citizen and it was on notice that it could be haled into court
in New Jersey, if only because the prospect of litigation attaches, even if
only remotely, to any such deal’’); SWMP, LLC v. Downs Racing, L.P.,
Docket No. 12-2608-JWL, 2012 WL 5354602, *3 (D. Kan. October 30, 2012)
(‘‘[The] [d]efendant’s contacts with Kansas were not merely random or
fortuitous; rather, it reached out beyond the borders of Pennsylvania and
entered into a continuing relationship with citizens of Kansas. In doing so,
[the] defendant purposefully availed itself of the benefits of [Kansas’] laws
and should reasonably have anticipated being haled into court [there].’’);
Vance’s Foods, Inc. v. Special Diets Europe Ltd., supra, 2012 WL 1353898,
*5–6 (‘‘[The defendant] knew that it was entering into a long-term contractual
relationship with a company located in California . . . . Thus, [the defen-
dant] has taken deliberate action within the forum state and has created
continuing obligations to forum residents . . . .’’ (Citation omitted; internal
quotation marks omitted.)); Nielsen Idaho Tool & Engineering Corp. v.
Scepter Corp., Docket No. 1:11-cv-00058-BLW, 2011 WL 4431751, *4 (D. Idaho
September 22, 2011) (‘‘[b]y entering into a continuing relationship with . . .
an Idaho citizen, [the defendant] purposefully availed itself of the privileges
and protections of doing business in Idaho’’); Engineered Medical Systems,
Inc. v. Despotis, Docket No. 1:05-CV-0170-DFH-TAB, 2005 WL 2922448, *3
(S.D. Ind. November 4, 2005) (‘‘[w]hen [the defendant] deliberately entered
into a long-term contractual relationship with . . . an Indiana corporation,
he purposefully availed himself of the privilege of conducting business in
Indiana’’); Comerota v. Vickers, 170 F. Supp. 2d 484, 489 (M.D. Pa. 2001)
(‘‘[T]he defendants created minimum contacts with Pennsylvania. They
availed themselves of the opportunity to do business with a Pennsylvania
resident. Although the business relationships at issue here began outside
of Pennsylvania, the defendants were notified of [the] plaintiff’s move to
the [c]ommonwealth and voluntarily continued to do business with him
over the next several months while he was in Pennsylvania.’’); Eaton Corp.
v. Maslym Holding Co., 929 F. Supp. 792, 797 (D.N.J. 1996) (‘‘long-term
commitments with state residents contribute to establishing minimum con-
tacts with the forum, as they create ‘continuing obligations’ among the
parties’’); Russell v. SNFA, 987 N.E.2d 778, 796 (Ill.) (‘‘[b]y engaging a busi-
ness entity located in Illinois, [the] defendant undoubtedly benefitted from
Illinois’ system of laws, infrastructure, and business climate’’), cert. denied,
571 U.S. 886, 134 S. Ct. 295, 187 L. Ed. 2d 152 (2013); Crete Carrier Corp.
v. Red Food Stores, Inc., 254 Neb. 323, 331–32, 576 N.W.2d 760 (1998) (finding
sufficient minimum contacts under Burger King because defendants entered
into ongoing contractual relationship with Nebraska resident); Willbros USA,
Inc. v. Certain Underwriters at Lloyds of London, 220 P.3d 1166, 1173 (Okla.
Civ. App. 2009) (‘‘The appropriate question is not whether the defendant
has sufficient contacts with the plaintiff, but whether the defendant has
sufficient contacts with the forum state. . . . By choosing to do business
with an Oklahoma company, [the defendant] purposefully availed itself of
the privilege of conducting activities within Oklahoma.’’ (Citations omitted;
footnote omitted.)); Peters v. Top Gun Executive Group, 396 S.W.3d 57, 70
(Tex. App. 2013) (‘‘when a single contract evidences that the parties sought
to establish a long-term arrangement with [a] continuing relationship and
obligations, it is likely that the nonresident purposefully availed itself of the
forum’’ (internal quotation marks omitted)); Raser Technologies, Inc. v.
Morgan Stanley & Co., LLC, 449 P.3d 150, 160, 162 (Utah 2019) (noting that
‘‘[t]he distinction between a defendant’s contacts with the plaintiff and a
defendant’s contacts with the forum state itself is difficult to grasp in the
abstract’’ and that, ‘‘[e]ven if the effects are felt by just the plaintiff in the
state, if those effects are the product of a defendant purposefully reaching
into the state, specific jurisdiction may exist’’).
13
For example, Justice Stevens argued in his dissent that the defendant
franchisee had done business primarily with the franchisor’s local Michigan
office, which was solely responsible for supervising his restaurant, and that
the majority, by relying on boilerplate contract language referencing the
franchisor’s Florida headquarters, created a greater potential for unfairness
in negotiations between franchisors and their franchisees. Burger King
Corp. v. Rudzewicz, supra, 471 U.S. 487–89 (Stevens, J., dissenting).
14
For purposes of this comparison, I am taking into account only those
contacts between B&M and Connecticut that are credited by the majority,
that is, a long-term contractual relationship with a forum resident that
performs its contractual duties and suffers any harms in the forum state, a
physical visit to the state, hundreds of telephone and mail communications,
and North Sails’ right to inspect B&M’s products and financial records in
Connecticut. But see part III F of this opinion (identifying additional contacts
not included in majority’s analysis).
15
The court in Benton ultimately concluded that the plaintiff had failed
to establish that the reasonableness prong of the personal jurisdiction test
was satisfied. See Benton v. Cameco Corp., supra, 375 F.3d 1078–79. In
significant part, that conclusion was reached because the law of the foreign
defendant’s home country—in that case Canada—governed the dispute. See
id., 1078–80. In the present case, by contrast, the parties’ contract provided
that any dispute would be resolved according to Wisconsin law and also
committed B&M to assisting North Sails in any litigation arising from the
licensing agreement, indicating that B&M was on notice that it might have
to litigate any disputes with North Sails in the United States and consented
thereto. Certainly this court is in a better position than are the courts of
Austria to interpret and apply the law of Wisconsin.
16
I would emphasize that, although most long-term business relationships
will give rise to jurisdiction in the forum state, that certainly is not always
or necessarily the case, which is why I have referred to the ‘‘typical’’ trappings
of such contracts as ‘‘presumptively’’ generating sufficient minimum con-
tacts. In the remainder of this part of the opinion, I explain why and how
the licensing agreement at issue in the present case did in fact envision and
actually generate numerous continuing obligations within the meaning of
Burger King.
17
The majority is incorrect when it asserts that cases such as these, which
treat contractual communications into and out of the forum as powerful
evidence of purposeful availment, invariably involve continuous communica-
tion coupled with other significant contacts, such as the defendant initiating
contact with a forum resident. See footnote 22 of the majority opinion and
accompanying text. No such additional contacts were present in Star Media
Sales, Inc., for example, and yet the United States Court of Appeals for the
Third Circuit had no difficulty concluding that jurisdiction was proper,
largely on the basis of twelve communications conducted over a relatively
brief period of time. See Grand Entertainment Group, Ltd. v. Star Media
Sales, Inc., supra, 988 F.2d 482–83. Although the majority insists that Star
Media Sales, Inc., supports its view, it never explains exactly what other
significant contacts distinguish that case, offering only the unhelpful and
conclusory statement that ‘‘[B&M] ‘engaged in negotiations for an agreement
that would have created rights and obligations among citizens of the forum
and contemplated significant ties with the forum.’ ’’ Footnote 22 of the
majority opinion. The truth is that, aside from the communications between
the parties, the primary jurisdictional factor that the court relied on in Star
Media Sales, Inc., was that the defendant had entered into a long-term
agreement to use the plaintiff’s intellectual property. See Grand Entertain-
ment Group, Ltd. v. Star Media Sales, Inc., supra, 479–80, 482–83. That
relationship is the reference point of the ‘‘rights and obligations’’ language
cited by the majority, which strongly supports my view that ongoing commu-
nications, in the context of a long-term commercial relationship, create
sufficient minimum contacts with the forum state, especially in the context
of an intellectual property licensing agreement.
18
The majority cites cases from the United States Courts of Appeals for
the Sixth, Eighth, and Ninth Circuits for the proposition that ‘‘e-mail, mail,
and telephone communications . . . do not constitute a purposeful
availment of the benefits and protections of the forum’’ and ‘‘carry minimal
weight . . . .’’ Part I B of the majority opinion. The cited cases from the
Sixth and Eighth Circuits on their face contradict that assertion, stating
instead that ‘‘[t]he use of interstate facilities such as the telephone and mail
is a secondary or ancillary factor and cannot alone provide the minimum
contacts required by due process.’’ (Emphasis added; internal quotation
marks omitted.) Reynolds v. International Amateur Athletic Federation,
23 F.3d 1110, 1119 (6th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 423, 130
L. Ed. 2d 338 (1994); accord Scullin Steel Co. v. National Railway Utilization
Corp., 676 F.2d 309, 314 (8th Cir. 1982). More recent cases from the Ninth
Circuit likewise conclude that traditional and electronic communications,
although not dispositive, are relevant to the minimum contacts analysis in
the context of a long-term contractual relationship. See, e.g., In re LLS
America, LLC, 701 Fed. Appx. 565, 567 (9th Cir. 2017) (telephone calls and
letters, in context of contractual course of dealing, are relevant contacts).
19
It is unclear why the majority deems the decisions of sister state appel-
late courts to be irrelevant. See footnote 19 of the majority opinion. In any
event, the majority fails to articulate any compelling reason why we should
not adopt the reasoning of these decisions that indicate that, by visiting a
state such as Connecticut in furtherance of a contractual relationship, a
foreign defendant avails itself of the state’s protections and, thus, is on
notice that it should anticipate being subject to suit there. Physical presence
in a state, even short-lived and fortuitous in nature, will often subject an
individual (and the individual’s principal under some circumstances) to the
jurisdictional authority of the forum state for certain purposes. We take for
granted, for example, that a corporate officer with no personal or corporate
connection to Connecticut may be compelled to appear in Connecticut as
a witness at a specified place and time—sometimes for days—if the individ-
ual is served with a subpoena while changing planes at Bradley International
Airport during a layover on a flight from Chicago to Bangor, Maine. To be
sure, there is a significant difference between being a witness and a party
to a lawsuit, but the point is that the choice to visit a state, however
temporarily, increases the risk that the visitor will be subjected to the
coercive authority of that state’s judicial machinery.
20
Paragraph 6 (b) provides: ‘‘Representatives of [North Sails] shall have
the right, at reasonable times, to inspect the [l]icensed [p]roducts, the prem-
ises of B&M on which such products are manufactured or stored and all
quality control test data of B&M pertaining thereto in order to determine
and assure that all [l]icensed [p]roducts conform to the quality standards
established herein.’’
21
I fail to grasp the logic of the majority’s position that, on the one hand,
B&M sending hundreds of substantive, contractually mandated communica-
tions to North Sails’ Connecticut headquarters, as identified in the contract,
is mere ‘‘happenstance’’ because North Sails might have chosen to reside
elsewhere but, on the other hand, that B&M sending payments to a bank
in Wisconsin where North Sails happened to do its banking somehow repre-
sented a purposeful availment of the privilege of doing business in Wisconsin.
North Sails’ fixed, physical location in Connecticut seems far less a matter
of accident or chance (fortuity) than does the location of its bank account
in Wisconsin. Indeed, the agreement itself reflects the inessential and poten-
tially transitory nature of North Sales’ bank account location by expressly
providing that North Sails could change the account designation at will.
The majority cites Burger King for the distinction it draws, but the cited
pages say nothing of the sort. See Burger King Corp. v. Rudzewicz, supra,471 U.S. 475–76.
22
The majority’s only responses to this point are to observe that (1) North
Sails has not specifically argued on appeal that B&M enjoyed the protections
of CUTPA, and (2) taking unfair trade practice laws such as CUTPA into
account would make jurisdiction too easy to establish. CUTPA, however,
is merely one example among many of the broader point that the United
States Supreme Court has consistently made, which is that a foreign corpora-
tion that chooses to do business in the forum state or partners with a
resident thereof necessarily invokes the protection and benefits of that
state’s commercial laws and business climate. See, e.g., Ford Motor Co.
v. Montana Eighth Judicial District Court, supra, 141 S. Ct. 1029 (‘‘[the
defendant] enjoys the benefits and protection of [the forum states’] laws—
the enforcement of contracts, the defense of property, the resulting forma-
tion of effective markets’’ (internal quotation marks omitted)); Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 779, 104 S. Ct. 1473, 79 L. Ed. 2d 790(1984) (‘‘[c]ertainly [the defendant], which chose to enter the New Hampshire
market . . . would have claimed the benefit of [its laws] if it had a complaint
against a subscriber, distributor, or other commercial partner’’); Russell v.
SNFA, 987 N.E.2d 778, 796 (Ill.) (‘‘[b]y engaging a business entity located
in Illinois, [the] defendant undoubtedly benefitted from Illinois’ system of
laws, infrastructure, and business climate’’), cert. denied, 571 U.S. 886, 134
S. Ct. 295, 187 L. Ed. 2d 152 (2013). My point regarding CUTPA is not a new
argument; it is merely an example taken from the facts of the present case
that goes to the core of what the high court means by purposeful availment.
Relatedly, with respect to the second point, I am not contending that
anyone who does business with a Connecticut resident is, ipso facto, subject
to jurisdiction in our state courts simply because CUTPA governs those
transactions. As with other factors in the minimum contacts analysis, it is
a matter of degree, and we look to the totality of the circumstances. The
longer a foreign company does business with a Connecticut resident, the
more extensive the negotiations and more multifaceted the communications,
the stronger the argument that the twin pillars of due process—notice and
fairness/voluntariness—have been satisfied. In this case, B&M enjoyed the
protections of CUTPA over the course of nearly two decades, during which
the parties repeatedly renegotiated the terms of their contract. Having bene-
fitted during that entire period from Connecticut’s unfair trade practice,
tort and contract laws, B&M ought not now be heard to contend that it
need not answer here for its alleged contract related misconduct.
23
The record contains ample evidence of a highly developed, multifaceted
relationship between North Sails and B&M’s predecessor in interest. The
latter had been paying North Sails approximately $60,000 in quarterly royal-
ties, invited Whidden to attend North Sails Windsurfing GmbH’s board of
directors meetings in New York, requested key financial data from North
Sails in conjunction with a potential acquisition, and invited North Sails to
send proposals regarding additional potential licensing agreements.
24
At an average 2017 exchange rate of 1.13 dollars per euro, this means
that the company’s Connecticut sales were approximately $4500 that year.
Eberle did not dispute North Sails’ contention that these product sales
included B&M products encompassed by the licensing agreement, and we
are, therefore, compelled to accept that allegation as true. Neither party
indicated the extent of B&M’s Connecticut sales, if any, in prior contract
years.
25
For reasons unknown, North Sails does not address these product sales
in its appellate briefs. As previously discussed; see part I of this opinion;
our independent review of the jurisdictional question, and of the factual
record, is de novo. See, e.g., Golodner v. Women’s Center of Southeastern
Connecticut, Inc., supra, 281 Conn. 826 (court should accept all undisputed
facts when making personal jurisdiction determination); Frazer v. McGo-
wan, supra, 198 Conn. 250 (when trial court has applied incorrect legal
standard, appellate court reviews undisputed facts disclosed on record to
determine whether personal jurisdiction exists). In part V of this opinion,
I explain in greater detail why I believe that we can and should consider
B&M’s sale and marketing of its products to Connecticut consumers as part
of the totality of the circumstances in the present case. To be clear, I would
reach the same result regardless.
26
For the reasons discussed herein, it is clear that B&M’s activities in
Connecticut, in addition to marketing and selling the licensed products
here, are such that the requirements of either Justice Brennan’s or Justice
O’Connor’s approach to the stream of commerce theory would be satisfied.
See Asahi Metal Industry Co., Ltd. v. Superior Court, 480 U.S. 102, 112,
107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987) (opinion announcing judgment)
(O’Connor, J.); id., 117 (Brennan, J., concurring in part and concurring in
the judgment).
27
In Connecticut, for example, product sales enjoy the protection of
CUTPA (unfair competition), General Statutes § 35-11a et seq. (trademark
regulation), and General Statutes § 35-24 et seq. (Connecticut Antitrust Act),
among other laws.
28
North Sails itself has not discussed these provisions of the parties’
agreement and their potential implications for the due process analysis. See
part V of this opinion.
29
Notably, the record suggests that B&M at one point sought the inclusion
of a forum selection clause that would have provided for the litigation of
all claims in the International Chamber of Commerce, but it ultimately signed
on to the agreement despite its inability to obtain a contractual assurance
that it would not have to litigate in the United States. This fact itself indicates
that B&M foresaw and accepted the possibility that it could be haled into
court here.
30
With respect to the second prong of the International Shoe test, it
should be clear that, in my view, B&M has failed to satisfy its burden
of presenting a ‘‘compelling case’’ that exercising jurisdiction would be
unreasonable insofar as it would offend traditional notions of fair play and
substantial justice. Burger King Corp. v. Rudzewicz, supra, 471 U.S. 477.