Nicastro v. McIntyre MacHinery America, Ltd.

Justice HOENS,

dissenting.

I respectfully dissent. Quoting extensively from this Court’s decision in Charles Gendler & Co. v. Telecom Equipment Corp., 102 N.J. 460 , 508 A.2d 1127 (1986), the majority asserts, indeed insists, that it is merely reaffirming and applying the bedrock jurisdictional principles this Court has long embraced. Ante at 73, 987 A2.d at 589, 76-77, 987 A2.d at 591-92. The majority purports as well to harmonize the Gendler holding with the analyses set forth in the competing plurality opinions of the United States Supreme Court, see Asahi Metal Indus. Co., Ltd., 480 U.S. 102 , 107 S.Ct. 1026 , 94 L.Ed.2d 92 (1987). In fact, the majority’s opinion does nothing of the sort.

Instead, in place of utilizing any of the analytical frameworks found in those three precedents, the majority has created an entirely new and unbounded test for asserting jurisdiction over foreign entities. Indeed, it is only by ignoring the essential underpinnings shared by those three opinions that the majority can reach its result; it is only by the use of subtle and unspoken shifts in language and emphasis that the majority is able to transform Gendler from what it is to what the majority chooses to have it mean. And transform it is precisely what the majority does. Because where Gendler used the stream of commerce theory as but one part of a larger due process analysis, with its *82 traditional focus on the foreign defendant’s connection to this forum, the majority has effectively substituted any effort by a manufacturer to sell its product anywhere in the nation as the only act needed for assertion of our jurisdiction.

Repeated quotations and soaring language about the realities of the global marketplace might compel the casual reader to follow what appears to be the majority’s relentless logic. But those rhetorical techniques cannot mask the fact that the majority today embarks on a path that stretches our notions about due process, and about what is fundamentally fair, beyond the breaking point. In doing so, the majority has, notwithstanding its protestations to the contrary, elected to forge a new and uncharted path. Because it is a path with which I cannot agree, I dissent.

I.

The issue presented to the Court in this dispute is a familiar one, for it requires us to decide whether our courts have jurisdiction over a foreign manufacturer of a product that is alleged to have injured one of our residents. At the same time, what might otherwise be an almost mundane exercise is complicated by the challenge of balancing the rights of the parties when the realities of a twenty-first century global economy strain against the outer limits of due process. In an effort to strike the right balance, we are asked to apply the stream of commerce theory, as articulated by this Court, see Gendler, supra, 102 N.J. at 480-81 , 508 A.2d 1127 ; cf. Lebel v. Everglades Marina, Inc., 115 N.J. 317 , 558 A.2d 1252 (1989) (declining to employ stream of commerce in place of traditional jurisdictional analysis), and as explained in the competing plurality opinions handed down by the United States Supreme Court, see Asahi, supra, 480 U.S. at 112 , 107 S.Ct. at 1032 , 94 L.Ed.2d at 104 (O’Connor, J., plurality opinion); id. at 117 , 107 S.Ct. at 1034-35 , 94 L.Ed.2d at 107-08 (Brennan, J., concurring). That theory, therefore, is at the heart of the debate in this appeal.

*83 In the majority’s view, applying that theory demands that this foreign manufacturer be subject to the jurisdiction of our courts. Objectively analyzed, however, it is hardly that simple, because in its articulation of the stream of commerce theory, the majority has strayed far from the precedents it purports to apply. Starkly stated, the majority has abandoned the cautious wisdom of Gendler and AsoM, creating in their place a new test that consists of but one inquiry: whether a product has found its way here. In the majority’s version of the stream of commerce theory, that fact alone suffices to subject the manufacturer of that product to our jurisdiction. But the majority’s opinion fails to articulate an analysis consistent with any of the well-established tests that have discussed the stream of commerce theory and, in the process, departs radically from all of them. More to the point, the majority reaches its result only by disregarding carefully developed notions of due process to which non-resident defendants always have been entitled. I therefore respectfully dissent.

Three opinions, one in Gendler and the two plurality opinions in Asahi, stand at the core of the debate over jurisdiction in this appeal. Although each uses “stream of commerce” as its central theme, those decisions agree on neither the meaning nor the implications of that concept as it relates to the exercise of jurisdiction. Instead, each of those opinions considers the manufacturer’s use of modern commercial distribution schemes, referred to as the stream of commerce, as but one part of a traditional jurisdictional inquiry. In doing so, those opinions express diverse views that spring from different theoretical underpinnings, but none of them uses the stream of commerce concept as an independent source of jurisdiction; each considers it solely for the role it plays in the context of a due process analysis.

In reality, it is only by appreciating what each of those decisions actually understood the “stream of commerce” theory to mean that one can hope to apply any of those distinct theories about jurisdiction to this dispute. One cannot, as does the majority in this appeal, simply pluck out the words “stream of commerce” *84 from those opinions and, repeating them like some ancient incantation, imply that it is a free-standing theory that supports the result the majority reaches. Nor can one use the phrase as if it were a short-hand substitute for a single analytical approach, so as to suggest that one has adhered to settled principles expressed in those three opinions. On the contrary, a careful explanation of the different versions of the stream of commerce theory set forth in those three opinions will best illustrate how the majority’s approach has departed from, rather than adhered to, any of those precedents.

A.

This Court’s prescient and groundbreaking opinion in Gendler is perhaps the best starting place, because it engaged in a thorough and scholarly analysis of the underlying problem of jurisdiction over foreign manufacturers that not only preceded the United States Supreme Court’s effort to tackle the question, but that continues to serve us well today.

As the Gendler Court recognized, all questions concerning a state’s assertion of personal jurisdiction “must comport with the due-process requirement of the fourteenth amendment.” Gendler, supra, 102 N.J. at 469 , 508 A.2d 1127 . Although we have long interpreted our long-arm jurisdiction to be consistent with “the uttermost limits permitted by the United States Constitution,” ibid, (quoting Avdel Corp. v. Mecure, 58 N.J. 264, 268 , 277 A.2d 207 (1971)), the fundamental and unquestioned right of a foreign defendant to due process remains the essential touchstone of jurisdiction.

In Gendler , the Court traced the origins of the stream of commerce theory through a review of the historical development of our theories of long-arm jurisdiction generally, beginning with the requirement of physical presence, ibid, (citing Pennoyer v. Neff, 5 Otto 714 , 95 U.S. 714 , 24 L.Ed. 565 (1878)), through the minimum contacts approach begun thereafter, see ibid, (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 , 66 S.Ct. 154, 158 , *85 90 L.Ed. 95, 102 (1945)), to explain the framework within which a stream of commerce theory might apply. As part of that analysis, the Court pointed out that deciding whether it is fair to subject any defendant to suit in a particular forum has evolved to include concepts such as whether defendant has “purposefully avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws,” id. at 471, 508 A.2d 1127 (quoting Hanson v. Denckla, 357 U.S. 235, 253 , 78 S.Ct. 1228, 1240 , 2 L.Ed.2d 1283, 1298 (1958)), and whether “defendant’s contacts with the forum state [are] such that it ‘should reasonably anticipate being haled into court there.’ ” Id. at 470, 508 A.2d 1127 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 , 100 S.Ct. 559, 567 , 62 L.Ed.2d 490, 501 (1980)).

The Court in Gendler pointed out that the United States Supreme Court, in World-Wide Volkswagen, had recognized the vitality of a stream of commerce theory, but described that theory as having two component parts. Quoting the United States Supreme Court, this Court described the theory as permitting the exercise of jurisdiction over a non-resident manufacturer if that manufacturer first, places its products into the stream of commerce and, second, does so “with the expectation that they will be purchased by consumers in the forum State.” Id. at 474 , 508 A.2d 1127 (quoting World-Wide Volkswagen, supra, 444 U.S. at 298 , 100 S.Ct. at 567 , 62 L.Ed.2d at 502 ). That second consideration, that is, the manufacturer’s expectation, was related to the Court’s reliance on a foreseeability analysis, and remains entirely consistent with the traditional inquiry about whether defendant could reasonably anticipate being “haled into court.” Id. at 475, 508 A.2d 1127 . Although this Court referred to the stream of commerce theory that had developed in the federal courts as “an independent basis to satisfy the minimum-contacts standard,” id. at 476 , 508 A.2d 1127 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 , 105 S.Ct. 2174, 2182 , 85 L.Ed.2d 528, 541 (1985)), its quotations from the United States Supreme Court’s opinion in Burger King make plain that this Court recognized that stream of *86 commerce necessarily includes the element of expectation of purchase in this state. That is, by recognizing that there are two elements to the theory, this Court did not substitute mere usage of the stream of commerce as if it were a free-standing basis for jurisdiction, but instead included within it the fairness and foreseeability analyses that are essential to due process. Ibid.

Turning to an exhaustive analysis of both state and federal precedents in which the stream of commerce theory had been considered, this Court considered the exercise of jurisdiction over foreign manufacturers generally, finding that concepts such as the nature of the chosen chain of distribution, see id. at 477-78 , 508 A.2d 1127 , and evidence of a manufacturer’s “purposeful penetration of the [forum state’s] market,” id. at 478 , 508 A.2d 1127 , were relevant to any consideration of the stream of commerce theory. In the end, however, the Court returned to fundamental concepts of due process, holding fast to considerations of purposeful availment, ibid., reasonable expectations of being haled into court, id. at 475 , 508 A.2d 1127 , and receipt of benefits of the forum, id. at 480 , 508 A.2d 1127 , as the guiding principles of our jurisdictional analysis. This Court described with precision the test to be applied: “The crucial question is whether [the- foreign manufacturer] was aware or should have been aware of a system of distribution that is purposefully directed at New Jersey residents.” Gendler, supra, 102 N.J. at 484 , 508 A.2d 1127 (emphasis added).

It is instructive to emphasize what Gendler did not decide. This Court did not conclude that the simple process of a product being placed into the general stream of commerce and ending up here was enough to support jurisdiction. Nor did this Court decide that creating a system of distribution that resulted in a product finding its way here was enough. Instead, this Court linked together two elements, awareness and purposefulness, that are critical, from the point of view of due process, to an exercise of jurisdiction. All of the comments in Gendler about the realities of a global economy and of nationwide patterns of distribution aside, *87 this Court remained true to concepts long recognized to be the fundamental basis on which any state can exercise jurisdiction over a foreign entity.

B.

An analysis of the two competing plurality opinions of the United States Supreme Court in Asahi, supra, leads to a similar conclusion, that is, that in evaluating any state’s exercise of long-arm jurisdiction, the Court’s core concern is due process. On that point, both the plurality opinion authored by Justice O’Connor and the concurring opinion written by Justice Brennan agree. The basis for deciding all jurisdictional questions remains rooted in our traditional notions of due process, see Asahi, supra, 480 U.S. at 108-09 , 107 S.Ct. at 1030 , 94 L.Ed.2d at 102 (O’Connor, J., plurality opinion); id. at 117 , 107 S.Ct. at 1034-35 , 94 L.Ed.2d at 107-08 (Brennan, J., concurring), and must comport with “fair play and substantial justice,” see id. at 113 , 107 S.Ct. at 1033 , 94 L.Ed.2d at 105 (O’Connor, J., plurality opinion) (quoting Int'l Shoe, supra, 326 U.S. at 316 , 66 S.Ct. at 158 , 90 L.Ed. at 102 ); id. at 116, 107 S.Ct. at 1034 , 94 L.Ed.2d at 107 (Brennan, J., concurring) (quoting Int’l Shoe, supra, 326 U.S. at 320 , 66 S.Ct. at 160 , 90 L.Ed. at 104 ).

Each of the plurality opinions uses the same test, namely, whether the foreign manufacturer has done something to “purposefully avail itself of the market in the forum State.” Asahi, supra, 480 U.S. at 110 , 107 S.Ct. at 1031 , 94 L.Ed.2d at 103 (O’Connor, J., plurality opinion); id. at 116-17 , 107 S.Ct. at 1034 , 94 L.Ed.2d at 107 (Brennan, J., concurring). Each, significantly, makes clear that it is inappropriate to define the stream of commerce theory in such a way that the label takes the place of an evaluation of purposeful availment.

That is, Justice O’Connor, as part of considering the stream of commerce theory, framed the question in terms of whether it is consistent with the protections afforded by the Due Process Clause to assert jurisdiction over a defendant whose product was *88 “swept” by the stream of commerce “into the forum State, but [where] the defendant did nothing else to purposefully avail itself of the market in the forum State.” Asahi, supra, 480 U.S. at 110 , 107 S.Ct. at 1031 , 94 L.Ed.2d at 103 . In her view, merely placing a product into the stream of commerce is insufficient to support jurisdiction because, without more, it cannot constitute action purposefully directed at the forum state. Id. at 112 , 107 S.Ct. at 1032 , 94 L.Ed.2d at 104 . Although reaching a different conclusion on what purposeful availment requires, Justice Brennan’s opinion does not disagree with the notion that merely placing a product into the stream of commerce will not suffice. He explicitly pointed out that, in his understanding, “[t]he stream of commerce refers not to unpredictable currents or eddies, but to the regular and anticipated flow of products from manufacture to distribution to retail sale.” Id. at 117 , 107 S.Ct. at 1034 , 94 L.Ed.2d at 107 .

Both of the plurality opinions in Asahi, therefore, caution against using “stream of commerce” as a surrogate for the analysis of the connection between the foreign entity and the forum that due process demands. The two opinions differ only in their definition of what, in addition to placing a product into the stream of commerce, will be required in order for the assertion of jurisdiction to pass constitutional muster.

For Justice O’Connor, the key lies in identifying sufficient additional conduct that would qualify to meet the test of purposeful availment. In her view, such conduct could be anything that would indicate that the foreign entity intended to serve a forum state’s market, including: designing the product for the forum state’s market; advertising there; establishing channels for providing regular advice to customers in the particular forum state; or marketing the product through a distributor that has agreed to serve as the sales agent in the forum state. Id. at 112 , 107 S.Ct. at 1032 , 94 L.Ed.2d at 104 .

Applying those concepts to the factual record before the Court in Asahi, Justice O’Connor concluded that the plaintiffs proofs fell short. She noted, for example, that the defendant did no business *89 in the forum state, had no office, no agents, no employees and no property there. Id. at 112 , 107 S.Ct. at 1032 , 94 L.Ed.2d at 105 . She observed that the defendant did not create, control or directly utilize the distribution system that brought its product to the forum state, because its product was merely a component of a vehicle being sold and distributed by others. Ibid. Moreover, she found in the record no evidence that the defendant had designed its product in anticipation of sales in the forum state. Id. at 113 , 107 S.Ct. at 1032 , 94 L.Ed.2d at 105 . Because the record lacked any evidence of conduct by the defendant that would tend to demonstrate that it had engaged in purposeful availment of the benefits of the forum, the opinion concluded that due process considerations would be offended by requiring it to appear and defend there.

More to the point, Justice O’Connor’s plurality opinion in Asahi closely linked the assertion of jurisdiction over a defendant that has introduced a product into the stream of commerce to traditional notions of personal jurisdiction and the Due Process Clause, because jurisdiction rested on conduct of some variety or an intentional act directed at the forum. Far from simply relying on the act of introducing one’s product into the stream of commerce, her opinion is rooted in the well-settled principle that jurisdiction must be based on some action or conduct that demonstrates that the defendant has purposefully availed itself of the forum state’s market.

Justice Brennan’s concurring opinion in Asahi expressed a different view, but one that is equally grounded on ordinary concepts of due process and the extent to which that constitutional guarantee would be offended by the absence of a direct physical connection between the manufacturer’s activities and the result of its product ending up in the forum state. He, too, considered the nature and extent of a manufacturer’s activities that would suffice to satisfy the basic requirement that jurisdiction be supported by a defendant’s purposeful availment of the forum state’s market. Id. at 116-17 , 107 S.Ct. at 1034-35 , 94 L.Ed.2d at 107-08 . He *90 disagreed with Justice O’Connor’s conclusion that affirmative conduct was needed, reasoning that due process notions of purposeful availment could be satisfied instead by evidence demonstrating that the manufacturer was aware of the fact that its product was being marketed in the forum state. Id. at 116-17 , 107 S.Ct. at 1034 , 94 L.Ed. 2d at 107 . Simple awareness of a remote possibility, however, is insufficient for jurisdiction as Justice Brennan understood it. Rather, in his words,

[t]he stream of commerce refers not to unpredictable currents or eddies, but to the regular and anticipated flow of products from manufacture to distribution to retail sale. As long as a participant in this process is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise.

[Id, at 117, 107 S.Ct. at 1034 , 94 L.Ed,2d at 107.]

Although Justice Brennan found it unnecessary for a plaintiff to show “additional conduct” directed toward the forum by a manufacturer, he defined the stream of commerce to include an affirmative awareness that the product, either separately or as a component part, is being marketed in the forum state. Ibid.

Justice Brennan commented that, as long as the manufacturer “is aware that the final product is being marketed in the forum,” ibid., there is a connection between the manufacturer and the forum sufficient for due process purposes. His opinion, therefore, did not substitute mere placement of a product into the stream of commerce for the ordinary requirements needed to satisfy due process. Nor did he embrace some metaphysical or theoretical definition of awareness. Instead, his opinion emphasized that there are two key indicia of “awareness” needed to support jurisdiction consistent with due process, namely, the regularity of the sales in or to the forum state and evidence of defendant’s expectation that its product would be purchased there. Id. at 121 , 107 S.Ct. at 1036-37 , 94 L.Ed.2d at 110 .

As part of his examination of the factual record in Asahi, Justice Brennan concluded that the evidence of regular and extensive sales of a product by the defendant to a manufacturer for incorporation as a component part, coupled with the defendant’s *91 knowledge that the manufacturer was engaged in the regular course of selling the final product in the forum state, was the crucial basis for the exercise of jurisdiction. He pointed out that the defendant’s components were included in at least eighteen percent of the products sold in one forum state store and that the defendant, on average, annually sold hundreds of thousands of its components to the manufacturer. See id. at 121 n. 4, 107 S.Ct. at 1037 n. 4, 94 L.Ed.2d at 110 n. 4. Justice Brennan, therefore, found ample support for the “awareness” analysis embodied in his stream of commerce theory, leading to the conclusion that the defendant’s due process rights would not be abridged by subjecting it to jurisdiction. Id. at 121 , 107 S.Ct. at 1036-37 , 94 L.Ed.2d at 110 .

II.

Neither of the Asahi opinions abandoned due process as the essential underpinning of jurisdiction, or reliance on purposeful availment as the core of that analysis. Neither of the Asahi opinions, moreover, equated merely placing a product into the stream of commerce somewhere in the United States with purposeful availment sufficient to comport with due process and to support jurisdiction. On the contrary, as those opinions and this Court’s decision in Gendler make clear, this Court and the United States Supreme Court have never strayed from the recognition that due process is fundamental to the constitutional assertion of jurisdiction over a non-resident defendant. This Court and the United States Supreme Court have never varied from holding that due process demands that there be some connection between a defendant and the forum, whether that analysis is expressed in terms of minimum contacts, see Int'l Shoe, supra, 326 U.S. at 316 , 66 S.Ct. at 158 , 90 L.Ed. at 102 , or purposeful availment, see Burger King, supra, 471 U.S. at 475-76 , 105 S.Ct. at 2183-84 , 85 L.Ed.2d at 542-43 , or an action purposefully directed toward the forum State, see Asahi supra, 480 U.S. at 112 , 107 S.Ct. at 1032 , 94 L.Ed.2d at 104 (O’Connor, J., plurality opinion), or awareness of *92 regular and extensive sales of its product by another, see Asahi, supra, 480 U.S. at 121 , 107 S.Ct. at 1036-37 , 94 L.EdM at 110 (Brennan, J., concurring), or purposefulness demonstrated by the knowledge that one’s products will be sold in the forum state, see Gendler, supra, 102 N.J. at 480 , 508 A2d 1127 .

Today, in the guise of reaffirming Gendler, ante at 73, 987 A 2d at 589, the majority cuts all ties with precedent and does what Asahi warned against, equating the mere placement of a product into the stream of commerce somewhere with whatever due process would otherwise demand for assertion of jurisdiction anywhere. The majority does so by first conceding that nothing in this record would satisfy the traditional minimum contacts test, ante at 60-61, 987 A2d at 582. It then describes the stream of commerce as if it were an alternative rationale, ibid., proceeding thereafter to review the factual record in terms meant to match the ones used by this Court in Gendler .

As characterized by the majority, this case is about a foreign company that engaged in “purposeful marketing” of its product, ante at 52, 987 A.2d at 577, that used a “distribution scheme,” ibid., and that “targeted” a geographical market that included New Jersey, ante at 52, 987 A.2d at 577, 52-53, 987 A.2d at 577, 73, 987 A.2d at 589. There can be little debate, of course, that if defendant in fact had a “distribution scheme” like the ones considered in Gendler and Asahi, and if it “targeted” this state in particular, our traditional notions of due process would support the exercise of jurisdiction. This record, however, has evidence neither of a “distribution scheme” nor of “targeting” consistent with what this Court in Gendler or the United States Supreme Court in Asahi discussed. Indeed, it is only through subtle and unspoken, but analytically significant, shifts in the meaning of those phrases that the majority is able to assert that it is applying those precedents faithfully. It is, however, the very real distinctions between what the earlier opinions meant and what the majority today means that demonstrate that there is no faithful adherence to those precedents at all.

First, the “distribution scheme” in Gendler included a foreign manufacturer’s creation of a wholly-owned subsidiary that was *93 authorized to do business in this state, Gendler, supra, 102 N.J. at 467 , 508 A 2d 1127, and that company’s use of another wholly-owned subsidiary that sold its products to a New Jersey corporation for eventual sale to plaintiff. Ibid. Moreover, the foreign corporation in Gendler conceded that the sale in New Jersey was “not an isolated transaction,” ibid., but was part of larger and “[deliberate sales efforts,” id. at 469 , 508 A2d 1127 , aimed at this state. Likewise, in Asahi, the foreign manufacturer’s distribution system resulted in what Justice Brennan described as “regular and extensive sales” of its product for use as a component part in products sold in the state seeking to assert jurisdiction. Asahi, supra, 480 U.S. at 121 , 107 S.Ct. at 1037 , 94 L.Ed.2d at 110 .

Nothing in this record approaches the sort of “distribution scheme” to which those precedents referred. Instead, we are confronted with a foreign manufacturer that chose an entirely distinct, unaffiliated Ohio corporation to serve as its distributor, that had little, if any, success in its efforts to control or direct that entity’s activities, that sent a representative to trade shows somewhere in this country from time to time, and whose independent distributor made but one sale of a machine that ended up in this state. Notwithstanding that record, through clever repetition of phrases like “distribution scheme,” the majority transforms what might at most be described as a trickle of goods into a flood of products sufficient to meet the demands of due process when, in truth, the facts fall short. Apparently mindful of Justice Brennan’s caution that we not equate stream of commerce with the “unpredictable currents and eddies, but to the regular and anticipated flow of its products,” see id. at 117 , 107 S.Ct. at 1034 , 94 L.Ed.2d at 107 , the majority miseharacterizes the record to achieve precisely that end.

Second, the record is barren of the kind of targeting that this Court in Gendler and the United States Supreme Court in Asahi considered. In each of those opinions, the Courts evaluated the manufacturer’s connection with the particular forum and utilized the stream of commerce to the extent that it played a role as the *94 vehicle for getting the product to that forum. For example, in Gendler , one could conclude that there was an effort to access and exploit a market in New Jersey because the manufacturer utilized an alter ego, a wholly-owned subsidiary doing business here, and engaged in “[d]eliberate sales efforts” aimed at this state. Gendler, swpra, 102 N.J. at 469 , 508 A2d 1127 . In Asahi, although the record was hardly extensive, both of the opinions are clear about what is required, at a minimum, for this element of the test. For Justice O’Connor, it remains purposeful availment as evidenced through conduct aimed at a particular forum’s market, see Asahi, supra, 480 U.S. at 112 , 107 S.Ct. at 1032 , 94 L.Ed.2d at 104 ; for Justice Brennan, it requires affirmative awareness that the stream of commerce is being used to market the product in the target state, id. at 117 , 107 S.Ct. at 1034 , 94 L.Ed.2d at 107 .

Nothing in this record rises to that level, for there is no evidence that the foreign corporation made any effort to send its products here; there is nothing more than a decision to market its product somewhere within this nation. Ignoring this Court’s plain command in Gendler that the “crucial question” includes a “system of distribution that is purposefully directed at New Jersey residents,” Gendler, supra, 102 N.J. at 484 , 508 A 2d 1127, the majority simply replaces targeting of this state, which would comport with due process, with a generic effort toward the whole of the United States, which does not.

The majority has, in reality, redefined the crucial jurisdictional terms to suit its ends. Affixing the wholly unwarranted label of “distribution scheme” now takes the place of explaining how the marketing efforts in this record rise to the level contemplated by that phrase in Gendler or Asahi. Redefining the target market from this forum to “a geographical market that includes New Jersey,” ante at 53, 987 A2d at 577, masks the fact that there was no focus on this state. These are subtle shifts in emphasis indeed, but they are intentional ones, utilized to accomplish the majority’s goal of transforming the due process requirement that there be a connection between the foreign entity and the forum state into a *95 test in which the mere act of placing a product into the general stream of commerce somewhere in this nation will suffice. Justice O’Connor and Justice Brennan both rejected such a view, and the suggestion that somehow in Gendler this Court did otherwise is false.

Merely including extensive quotations from Gendler , and from the competing plurality opinions in Asahi, does not equate with analytical faithfulness to the principles on which those cases rest. Citing Gendler’s language about the global economy and about modern methods for distribution of allegedly dangerous products, as if those concerns alone support jurisdiction over a non-resident, misses the entire point of the Gendler analysis. Likewise, quoting from the opinions in Asahi without appreciating the fine distinctions about whether purposeful availment is tested by the additional conduct of the manufacturer, or by awareness of a regular and extensive distribution scheme, ignores the thorny constitutional questions those Courts, and this one, must confront fairly and squarely.

Instead of recognizing that in each of those opinions the stream of commerce is the beginning, and not the end, of the inquiry into jurisdiction, the majority has contorted the stream of commerce theory to its own ends. By ignoring the second half of the Gendler test, that is, the element of purposeful direction at New Jersey residents, Gendler, swpra, 102 N.J. at 484 , 508 A2d 1127 , the majority has transformed the analysis of the due process demands of jurisdiction into a single question: was a product introduced into the stream of commerce somewhere in the United States, eventually ending up here. That approach is not only circular and simplistic, it is, in the end, an unconstitutional one, because it is starkly inconsistent with fundamental notions of fairness and due process that this Court and the United States Supreme Court have identified as the touchstone of jurisdiction.

I part company with the majority’s opinion because it fails to recognize that what gives content to the stream of commerce theory is the manufacturer’s conduct, or knowledge, or awareness of what others were doing with its product. It is those elements *96 that satisfy the traditional component of purposeful availment and that, therefore, permit an exercise of jurisdiction that does not offend the outermost bounds of due process. Any jurisdictional inquiry must contend with the accepted two-part test, through which we recognize that due process demands some act, some evidence, some proof of affirmative awareness, that one’s actions will likely result in a sale in the forum state. Because the majority has substituted any act, or potentially no act at all, that can be equated with permitting one’s product to enter generally into the stream of commerce for that essential component of our due process analysis, I cannot agree.

III.

I part from my colleagues for a separate reason, albeit one that requires only a brief exposition. In Worldr-Wide Volkswagen, the United States Supreme Court commented that part of deciding whether it is reasonable to require a nonresident corporation to defend itself in a particular forum includes an analysis of factors other than those that focus on defendant alone. The Court noted:

[T]he burden on the defendant, while always a primary concern, will in an appropriate ease be considered in light of other relevant factors, including the forum State’s interest in adjudicating the dispute!,] ... the plaintiffs interest in obtaining convenient and effective relief!,] ■ • • the interstate judicial system’s interest in obtaining the most efficient resolution of controversies!,] and the shared interest of the several States in furthering fundamental substantive social policies!.] [World-Wide Volkswagen, supra, 444 U.S. at 292 , 100 S.Ct. at 564 , 62 L.Ed.2d at 498 (citations omitted).]

Through this language, the Supreme Court made plain that the essential focus of the due process analysis must be on defendant and its relationship to the forum, and that the other considerations play a subsidiary role should the court conclude that there are sufficient contacts to support jurisdiction. In each of the decisions of that Court, the focus of the jurisdictional analysis is on defendant and its behavior or activities, rather than on plaintiff and his or her injuries or damages. The United States Supreme Court, although reciting facts relating to the damage or injury alleged, has done so in a cursory fashion, presumably to ensure that *97 sympathy for an injured plaintiff would not shift the focus away from the due process rights of the nonresident defendant. See, e.g., Asahi supra, 480 U.S. at 105 , 107 S.Ct. at 1029 , 94 L.Ed.2d at 100 (noting that plaintiff was “severely injured”); World-Wide Volkswagen, supra, 444 U.S. at 288 , 100 S.Ct. at 562 , 62 L.Ed.2d at 495 (noting that plaintiffs were “severely burned” when their car caught fire after accident with another vehicle).

Apparently concluding that an appropriate evaluation of defendant’s due process rights should instead be conducted only in the context of a full explanation of the factual assertions, the majority engages in an unnecessarily detailed description of plaintiffs severe injuries, coupled with repeated references to defendant’s “dangerous” machine as the cause. That all of us desire to make certain that our citizens have access to our courts, that all of us agree that we should make a forum available so that injured individuals can achieve justice and fair compensation for their injuries caused by the negligence of others, is a given. But in this appeal, involving a dispute on a matter as to which the seriousness of the injury or the fault of the manufacturer is largely irrelevant, the majority’s election to make such considerations so great a part of its reasoning suggests a disturbing shift in focus in two ways.

First, the majority rather inexplicably uses the fact of plaintiffs severe injuries to support its jurisdictional analysis, commenting that this newly adopted test applies in products liability eases, ante at 52, 987 A2d at 577, and observing that lesser injuries somehow might not be sufficient to support jurisdiction, ante at 76-77, 987 A2d at 591-92. Apparently, the majority’s stream of commerce approach would not, in these same factual circumstances, afford sufficient basis for us to grant the machine’s corporate owner access to our courts if it sought to pursue a contract or warranty claim. Likewise, the usual focus on due process as it applies to a foreign defendant now turns in some never explained fashion on whether the plaintiff includes the right sort of claim in the pleading and has injuries that the majority *98 considers worthy of concern. In either ease, those comments evidence a new, unexplained and unfounded approach to jurisdiction.

The majority therefore, sadly, creates a new rule only for the class of claims and claimants it favors, rather than one that applies to all like-situated matters and litigants. Indeed, the proof of that may be found in the supremely ironic fact that, on the same date on which we heard oral argument in this appeal, we issued our unanimous opinion in McKesson Corp. v. Hackensack Medical Imaging, 197 N.J. 262 , 962 A.2d 1076 (2009). The Court there, using language that the majority today echoes, commented that “[i]n today’s rapidly shrinking world, the purchase of goods from out-of-state vendors has become commonplace.” Id. at 278 , 962 A2d 1076 . Contrary to the majority’s conclusion that for some plaintiffs, that fact alone supports the exercise of jurisdiction, this Court in McKesson utilized our traditional due process approach, cautioning that “[tjhose instances, standing alone, are insufficient to establish the requisite minimum contacts needed to invoke long-arm jurisdiction consistent with due process.” Ibid.

Second, the majority opinion includes a change in focus from an appropriate analysis of a defendant’s due process rights to concerns that plaintiffs be assured of access to the most convenient forum. Particularly troubling in this regard is the end of the opinion, in which the majority appears to address two issues without benefit of briefing or argument. First, engaging in a discussion that should properly be characterized as a forum non conveniens analysis and, second, baldly asserting that our substantive law will apply, ante at 80, 987 A2d at 593-94, the majority seeks to add support for its conclusion that defendant should be forced to defend itself here. Whether a dispassionate forum non conveniens or choice of law analysis would yield that result is of no consequence; the inclusion of those points, as if the outcome is self-evident, betrays a majority that has lost sight of the fact that the focus of the analysis of due process and jurisdiction should be on defendant.

*99 Because the majority opinion is pervaded by expressions of concern for plaintiff, his particular cause of action, the severity of his injuries and his interests, and because it has shifted from fairness to the nonresident defendant as the “primary concern,” see World-Wide Volkswagen, supra, 444 U.S. at 292 , 100 S.Ct. at 564 , 62 L.Ed.2d at 498 , of a jurisdictional analysis, I respectfully dissent.

IV.

The version of the stream of commerce theory that the majority uses is a radical departure from the articulations of that theory as embraced by this Court in Gendler , and by the opinions of the United States Supreme Court in Asahi. It shatters the traditional, constitutionally-required ties between jurisdiction and connection with the forum, instead concluding that the mere happenstance of a product finding its way here is sufficient indicia of foreseeability or availment or awareness which has long been the hallmark of due process. It avoids faithful application of the fundamental fairness concerns that have long guided this Court, and the United States Supreme Court, by relying on circular rhetoric about the global economy as if that alone comports with due process. In the end, the majority has replaced a carefully balanced test, albeit one with some slightly varying emphases, but that remained true to our notions of due process, with an unbounded one that presumes that participation in the global economy, without more, bespeaks purposeful availment of the benefits of this jurisdiction. I respectfully dissent.

Justice RIVERA-SOTO joins in this opinion.