Filed 12/28/07 NO. 4-06-0894
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
CINDY PLOENSE, Individually and as Special ) Appeal from Administrator of the Estate of Michael Ploense, ) Circuit Court of Deceased, ) McLean County Plaintiff-Appellee, ) No. 05L202 v. ) ELECTROLUX HOME PRODUCTS, INC., et al., ) Defendants, ) and ) THE CHROME COALITION, ) Defendant-Appellant. ) Honorable ) James E. Souk, ) Judge Presiding.
PRESIDING JUSTICE APPLETON delivered the opinion of the court:
In March, 2006, plaintiff, Cindy Ploense, as special administrator of the
estate of Michael Ploense, deceased, sued the Chrome Coalition, along with other
defendants, for participation in a civil conspiracy to suppress knowledge of the harmful
health effects of chrome. The Chrome Coalition specially appeared and moved to
dismiss the action against it for lack of personal jurisdiction. In September 2006, the
circuit court denied the motion, and the Chrome Coalition petitioned to us for leave to
appeal pursuant to Illinois Supreme Court Rule 306(a)(3) (210 Ill. 2d R. 306(a)(3)). We
denied the petition. The Chrome Coalition then appealed to the supreme court, which,
by supervisory order, directed us to grant the petition and to hear the appeal on its
merits. Ploense v. Chrome Coalition, 223 Ill. 2d 684, 862 N.E.2d 1001 (2007) (nonprecedential supervisory order on denial of petition for leave to appeal). We have
done so. We conclude that the Chrome Coalition lacks the "minimum contacts" with
Illinois necessary to justify the exercise of personal jurisdiction. See International Shoe
Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158 (1945).
Therefore, we reverse the circuit court's judgment.
I. BACKGROUND
In count XVI of her amended complaint, plaintiff seeks damages for
wrongful death from the Chrome Coalition and five other defendants: Occidental
Chemical Corporation (Occidental); Metropolitan Life Insurance Company; PPG
Industries, Inc. (PPG); Elementis Chromium G.P., Inc. (Elementis); and Honeywell
International, Inc. (Honeywell). Therein, she refers to these six defendants as the
"[c]onspirators."
Plaintiff pleads the following facts. From 1973 to 1999 (except for periods
when he was laid off), Michael Ploense was employed by a company called Eureka. He
worked at Eureka's plant in Bloomington, Illinois, from 1973 to 1997 and at another
Eureka plant in Normal, Illinois, from 1997 to 1999. Eureka assigned him to work
"throughout the plants[,] including within or near the plating department in the
Bloomington plant[,] from 1973 to 1984."
During these years, Honeywell, PPG, Occidental, and Elementis (or their
corporate predecessors) were in the business of manufacturing and distributing
products containing chrome. The Chrome Coalition was an organization promoting the
sale and use of products containing chrome. Exposure to chrome caused disease and
-2- death. Ploense "was exposed to chrome, including chrome from one or more of the
conspirators, during his employment at Eureka," and, as a result, he contracted lung
cancer and died. Before Ploense was exposed to chrome in the workplace, the
conspirators knew that chrome caused serious disease and death. Ploense, however,
lacked such knowledge, and the conspirators knew that workers like him, exposed to
chrome in the course of their job duties, were ignorant of its hazardous properties.
"Two or more of the [c]onspirators had employees who were exposed to *** chrome,"
and "[e]ach of the [c]onspirators knew that if it [had] adequately warned its own
employees and others whose work brought them into contact with chrome, *** workers
[would have left] those industries using chrome[,] *** there[by] reduc[ing] the sale and
usage of chrome products."
Plaintiff further alleges as follows:
"20. The [c]onspirators knowingly conspired and
agreed among themselves to, among other[] [things]:
(a) assert that which was not true--that
it was safe for people to be exposed to chrome
and chrome[-]containing materials; [and]
(b) suppress information about the
harmful effects of chrome.
21. One or more of the [c]onspirators performed the
following overt acts in furtherance of the conspiracy:
(a) sold chrome products which were
-3- used at the [Bloomington and Normal plants]
without warning of the hazards known to the
conspirators, including sales by Occidental ***,
Allied Chemical [Corporation (the predecessor
of Honeywell),] and PPG *** to Eureka, from
which Michael Ploense was exposed to chrome;
(b) refused to warn its own employees
about the hazards of chrome known to it;
(c) suppressed the results of chrome
studies conducted by the Industrial Hygiene
Foundation [(IHF)] in the 1940s regarding the
relationship between chrome and cancer;
(d) agreed not to disclose the results of
research on the effects of chrome upon health
unless the results suited their interests;
(e) through lobbying and other efforts,
attempted to defeat measures by the federal
government to regulate the amount of chrome
permissible in the breathing zone of workers,
suppressed the results of stud[ies] on the
effects of chrome, including the [1956 to 1957]
study by IHF, and agreed to the non-
-4- dissemination of information linking chrome
to disease back to at least the 1940s[;]
(f) exposed its own employees to chrome
without warning of the hazards;
(g) refused to warn its employees who
were exposed to chrome-containing materials
of the hazards of exposure to chrome known to
the conspirators; and
(h) misrepresented and suppressed the
results of its studies finding a five[]fold
increase in lung[-]cancer deaths from
low[-]level exposure to chrome[,] from [the
Occupational Safety and Health Administration]
and other governmental bodies."
Counts XVII and XVIII of the amended complaint make essentially the
same allegations against the six defendants, but count XVII adds that Ploense "was ill
from lung cancer for a period of time before his death," and count XVIII adds that
Ploense was plaintiff's spouse and, because of his injury, plaintiff "suffered a loss of
services and society and became obligated for the expense of the medical care and
funeral costs for treatment and services provided to her spouse."
In support of its motion for dismissal on the ground of lack of personal
jurisdiction, the Chrome Coalition filed an affidavit by its chairman, Joel Barnhart. In
-5- his affidavit, he states as follows. The Chrome Coalition is not a resident of Illinois and
has "never engaged in the design, manufacture, marketing, sale, or distribution of any
products." Rather, it was founded in 1986 as a voluntary unincorporated trade
association with a dual purpose: to "serve as an information clearinghouse that gathers
and disseminates information, research, and studies relating to chrome; and to serve as
a facilitator of chrome[-]industry comments and opinions concerning regulations
affecting chrome." The Chrome Coalition has no employees and only two officers:
Barnhart and a vice chairman, Russell J. Morgan. Its membership consists of "various
segments of the chromium industry, including manufacturers and producers of chrome
and chrome products, distributors of chrome products, users of chrome products, and
other trade associations representing users of chrome products." Although its
membership includes manufacturers and producers of chromium chemicals and other
chromium products, "the Chrome Coalition itself has no financial investment in any of
those manufacturers or producers and does not share in their profits." From 1986 to
2003, the Chrome Coalition's affairs were administered by the Industrial Health
Foundation, which maintained an office in Pittsburgh, Pennsylvania. Currently, the
Chrome Coalition has no physical office. Its affairs "are conducted at meetings held
periodically by telephone or at locations where the Chrome Coalition's various members
themselves are located. Past meetings of the Chrome Coalition's members have taken
place in Pennsylvania, California, and the Washington, D.C.[,] area."
Under the heading "The Chrome Coalition Has No Contacts With the State
of Illinois," Barnhart's affidavit avers as follows:
-6- "12. The Chrome Coalition has never engaged in
substantial business activities in the State of Illinois[] [and
never] has otherwise established or sought to establish a
presence in Illinois.
13. The Chrome Coalition has never been qualified or
licensed to do business in Illinois; has never maintained or
conducted business operations in Illinois; and has never
operated, conducted, or engaged in or carried on a business
or a business venture in Illinois.
14. The Chrome Coalition does not own, use,
possess[,] or hold any mortgage or lien on any real property
in Illinois.
15. The Chrome Coalition has no interest in any other
property or asset in Illinois. The Chrome Coalition has no
property at all, other than various records related to its
existence and operations.
16. The Chrome Coalition does not maintain any
offices, agencies, bank accounts, telephone lines or listings,
post office boxes, mailing address, or other physical presence
17. The Chrome Coalition does not maintain an
authorized agent for service of process in Illinois.
-7- 18. The Chrome Coalition does not maintain
employees or agents in Illinois.
19. The Chrome Coalition has never paid taxes to the
State of Illinois.
20. The Chrome Coalition has never advertised in the
21. The Chrome Coalition has never engaged in
promotions in the State of Illinois.
22. The Chrome Coalition has never instituted a legal
proceeding of any kind in Illinois.
23. To the best of my knowledge, the Chrome
Coalition has never contracted in Illinois, and the Chrome
Coalition has never contracted with any person or entity for
goods or services in the State of Illinois.
24. The Chrome Coalition has never held a meeting in
the State of Illinois.
25. No officer of the Chrome Coalition has ever
traveled to Illinois for Chrome Coalition business purposes."
II. ANALYSIS
A. Our Standard of Review
The circuit court denied the Chrome Coalition's motion for dismissal
without holding an evidentiary hearing. We infer that the court found, in the amended
-8- complaint, a prima facie case of personal jurisdiction unrebutted by Barnhart's affidavit.
Our standard of review is de novo, for when the circuit court hears no testimony and
determines the jurisdictional issue solely on the basis of documents on file, it is in no
better position than we are to assess credibility and weigh the evidence. TCA
International, Inc. v. B & B Custom Auto, Inc., 299 Ill. App. 3d 522, 531, 701 N.E.2d 105,
112 (1998); Stein v. Rio Parismina Lodge, 296 Ill. App. 3d 520, 523, 695 N.E.2d 518, 521
(1998).
B. Personal Jurisdiction Under the Illinois Long-Arm Statute
Sections 2-209(a)(2) and (c) of the Code of Civil Procedure (Code) provide
as follows:
"(a) Any person, whether or not a citizen or resident
of this [s]tate, who[,] in person or through an agent[,] does
any of the acts hereinafter enumerated[] thereby submits
such person *** to the jurisdiction of the courts of this
[s]tate as to any cause of action arising from the doing of any
of such acts:
***
(2) The commission of a tortious act
within this State[.]
(c) A court may also exercise jurisdiction on any other
basis now or hereafter permitted by the Illinois Constitution
-9- and the Constitution of the United States." 735 ILCS 5/2-
209(a)(2), (c) (West 2006).
To find personal jurisdiction under section 2-209(a)(2), the court need not resolve, on
the merits, the issue of whether the act was indeed "tortious" as the plaintiff alleges
(thereby improperly merging the jurisdictional question with the merits); "'[i]f the
defendant or its agent performs an act or omission which causes an injury in Illinois
and the plaintiff alleges that the act or omission was tortious in nature, the
jurisdictional requirement is satisfied.'" International Business Machines Corp. v.
Morton Property & Casualty Insurance Agency, Inc., 281 Ill. App. 3d 854, 859, 666
N.E.2d 866, 869 (1996), quoting 3 R. Michael, Illinois Practice §6.5, at 68 (1989).
According to the amended complaint, it was not the Chrome Coalition but
a manufacturer or distributor that actually "commi[tted] [the] tortious [or injury-
causing] act" within the territorial boundaries of Illinois, i.e., "sold chrome products
which were used at the [Bloomington and Normal plants] without warning of the
hazards known to the conspirators." By alleging a conspiracy between the Chrome
Coalition and the manufacturer or distributor, plaintiff effectively rules out any agency
relationship between the Chrome Coalition and the manufacturer or distributor.
"[B]ecause the acts of an agent are considered in law to be the acts of the principal, there
can be no conspiracy between a principal and an agent." Buckner v. Atlantic Plant
Maintenance, 182 Ill. 2d 12, 24, 694 N.E.2d 565, 571 (1998); see also John Deere Co. v.
Metzler, 51 Ill. App. 2d 340, 355, 201 N.E.2d 478, 486 (1964). Thus, the perpetrator of
the overt act in Illinois was neither the Chrome Coalition nor an agent of the Chrome
- 10 - Coalition. It follows that personal jurisdiction is unavailable under section 2-209(a)(2)
(735 ILCS 5/2-209(a)(2) (West 2006)).
Section 2-209(c) allows an Illinois court to exercise personal jurisdiction
to the fullest extent permitted by the Illinois Constitution and the Constitution of the
United States. 735 ILCS 5/2-209(c) (West 2006). We next will explore this broader,
constitutional basis of jurisdiction.
C. The "Outer Limits" of Personal Jurisdiction, as Delineated By International Shoe and Its Progeny
Plaintiff argues that our decision in Cameron v. Owens-Corning Fiberglas
Corp., 296 Ill. App. 3d 978, 695 N.E.2d 572 (1998), is directly on point and requires us
to affirm the circuit court's judgment. The Chrome Coalition argues that Cameron is
distinguishable and that, if not distinguishable, it is inconsistent with federal standards
of due process in the exercise of personal jurisdiction over nonresident defendants.
Regardless of whether Cameron is directly on point in its facts, it uses language, in its
rationale, that is directly applicable to the present case. For example, the decision states
that "[t]he Illinois long-arm statute encompasses the conspiracy theory of jurisdiction."
Cameron, 296 Ill. App. 3d at 986, 695 N.E.2d at 577. Because plaintiff invokes the
"conspiracy theory of jurisdiction," we must consider the extent to which that theory
comports with due process.
"Federal standards are the outer limits beyond which the state may not go
to acquire jurisdiction over nonresidents ***." Cameron, 296 Ill. App. 3d at 984, 695
N.E.2d at 576. We look to four decisions by the Supreme Court of the United States as
determining the limits of personal jurisdiction.
- 11 - 1. International Shoe
In International Shoe, 326 U.S. at 313, 90 L. Ed. at 100, 66 S. Ct. at 157, the
appellant was a Delaware corporation engaged in the manufacture and sale of footwear.
Its principal place of business was St. Louis, Missouri. The appellant had no office or
inventory in the State of Washington. International Shoe, 326 U.S. at 313, 90 L. Ed. at
100, 66 S. Ct. at 157. But it had 11 to 13 salesmen in that state, and they rented rooms in
hotels and business buildings, where they exhibited sample shoes and solicited orders
from prospective buyers. International Shoe, 326 U.S. at 313-14, 90 L. Ed. at 100, 66 S.
Ct. at 157. Their commissions each year for sales in Washington totaled more than
$31,000. International Shoe, 326 U.S. at 313, 90 L. Ed. at 100, 66 S. Ct. at 157. The
salesmen had no authority to enter into contracts or make collections; they merely
transmitted orders to the appellant's office in St. Louis for acceptance or rejection.
International Shoe, 326 U.S. at 314, 90 L. Ed. at 100, 66 S. Ct. at 157.
The administrators of the Washington unemployment compensation fund
brought an action against the appellant to recover unpaid contributions to the fund.
International Shoe, 326 U.S. at 312, 90 L. Ed. at 99, 66 S. Ct. at 156. The appellant
contended that its activities within the state were insufficient to manifest its presence
there and that Washington's exercise of personal jurisdiction over the appellant
consequently violated due process. International Shoe, 326 U.S. at 315, 90 L. Ed. at 101,
66 S. Ct. at 158.
The Supreme Court held that in the case of a defendant (such as the
appellant shoe company) that was not present in the state, due process allowed the
- 12 - state's courts to exercise personal jurisdiction over that defendant only if it "[had]
certain minimum contacts with [the state] such that the maintenance of the suit
[would] not offend 'traditional notions of fair play and substantial justice.'"
International Shoe, 326 U.S. at 316, 90 L. Ed. at 102, 66 S. Ct. at 158, quoting Milliken v.
Meyer, 311 U.S. 457, 463, 85 L. Ed. 278, 283, 61 S. Ct. 339, 343 (1940). The contacts of
the corporation with the state must be such "as make it reasonable, in the context of our
federal system of government, to require the corporation to defend the particular suit
which is brought there. An 'estimate of the inconveniences' which would result to the
corporation from a trial away from its 'home' or principal place of business is relevant in
this connection." International Shoe, 326 U.S. at 317, 90 L. Ed. at 102, 66 S. Ct. at 158,
quoting Hutchinson v. Chase & Gilbert, Inc., 45 F.2d 139, 141 (2d Cir. 1930).
Generally, the amount of contact required depends on whether the activity
of the corporation within the state constitutes the basis of alleged liability. The required
amount of contact is less if the corporation's activity within the state "give[s] rise to the
liabilities sued on." International Shoe, 326 U.S. at 317, 90 L. Ed. at 102, 66 S. Ct. at 159.
The required amount of contact is more if the lawsuit "aris[es] from dealings entirely
distinct from those [contacts]." International Shoe, 326 U.S. at 318, 90 L. Ed. at 103, 66
S. Ct. at 159.
The test, however, is not "simply mechanical or quantitative"
(International Shoe, 326 U.S. at 319, 90 L. Ed. at 103, 66 S. Ct. at 159)--the analysis is
not reducible to the mere question of whether the nonresident defendant's activity in
the state is "a little more or a little less"--the "quality and nature of the activity" also
- 13 - count (International Shoe, 326 U.S. at 319, 90 L. Ed. at 103-04, 66 S. Ct. at 159-60).
"Whether due process is satisfied must depend *** [on] the quality and nature of the
activity in relation to the fair and orderly administration of the laws which it was the
purpose of the due process clause to insure." International Shoe, 326 U.S. at 319, 90 L.
Ed. at 104, 66 S. Ct. at 160.
The Supreme Court reasoned:
"[T]o the extent that a corporation exercises the
privilege of conducting activities within a state, it enjoys the
benefits and protection of the laws of that state. The exercise
of that privilege may give rise to obligations, and, so far as
those obligations arise out of[,] or are connected with[,] the
activities within the state, a procedure which requires the
corporation to respond to a suit brought to enforce them can,
in most instances, hardly be said to be undue." International
Shoe, 326 U.S. at 319, 90 L. Ed. at 104, 66 S. Ct. at 160.
The appellant in International Shoe not only carried on "systematic and
continuous" activities in Washington, "result[ing] in a large volume of interstate
business, in the course of which [the] appellant received the benefits and protection of
the laws of the state" (for example, the laws making it possible to lease real estate), but
"[t]he obligation *** sued upon arose out of those very activities"--the payment of
income to employees within the state gave rise to a statutory obligation to contribute to
the unemployment compensation fund. International Shoe, 326 U.S. at 320, 90 L. Ed.
- 14 - at 104, 66 S. Ct. at 160. The Supreme Court concluded: "It is evident that these
operations establish sufficient contacts or ties with the state of the forum to make it
reasonable and just[,] according to our traditional conception of fair play and
substantial justice[,] to permit the state to enforce the obligations which [the] appellant
ha[d] incurred there." International Shoe, 326 U.S. at 320, 90 L. Ed. at 104, 66 S. Ct. at
160.
2. Hanson v. Denckla
Dora B. Donner, a resident of Pennsylvania, executed a trust agreement
naming the Wilmington Trust Company of Wilmington, Delaware, as trustee. The
corpus of the trust consisted of securities. Hanson v. Denckla, 357 U.S. 235, 238, 2 L.
Ed. 2d 1283, 1289, 78 S. Ct. 1228, 1231 (1958). In the trust agreement, Donner reserved
a life estate in the corpus and provided that the remainder was to be paid to such
persons as she should appoint by inter vivos or testamentary instrument. Hanson, 357
U.S. at 238, 2 L. Ed. 2d at 1289, 78 S. Ct. at 1231. Donner subsequently moved to
Florida, where she exercised her inter vivos power of appointment. Hanson, 357 U.S. at
239, 2 L. Ed. 2d at 1289, 78 S. Ct. at 1232.
Because the appointment amounted to a "republication" of the trust
instrument that Donner originally executed in Pennsylvania, Florida courts ruled that
they had personal jurisdiction over the nonresident Delaware trustee. Hanson, 357 U.S.
at 253, 2 L. Ed. 2d at 1297, 78 S. Ct. at 1239. The Supreme Court disagreed. It said:
"For choice-of-law purposes[,] such a ruling may be
justified, but we think it an insubstantial connection with
- 15 - the trust agreement for purposes of determining the
question of personal jurisdiction over a nonresident
defendant. The unilateral activity of those who claim some
relationship 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. International Shoe v. Washington, 326 U.S. [at]
319, [90 L. Ed. at 104, 66 S. Ct. at 160]. The settlor's
execution[,] in Florida[,] of her power of appointment
cannot remedy the absence of such an act in this case."
Hanson, 357 U.S. at 253-54, 2 L. Ed. 2d at 1297-98, 78 S. Ct.
at 1239-40.
3. Kulko v. Superior Court of California
Ezra and Sharon Kulko married and had two children, Darwin and Ilsa.
Kulko v. Superior Court, 436 U.S. 84, 86-87, 56 L. Ed. 2d 132, 138, 98 S. Ct. 1690, 1694
(1978). The Kulkos and their two children resided together in New York City until
March 1972, when the Kulkos separated from one another. Kulko, 436 U.S. at 87, 56 L.
Ed. 2d at 138, 89 S. Ct. at 1694. Sharon moved to San Francisco, California, while Ezra
- 16 - remained in New York City. Kulko, 436 U.S. at 87, 56 L. Ed. 2d at 138, 98 S. Ct. at 1694.
A separation agreement provided that the children would remain with their father
during the school year but would spend Christmas, Easter, and summer vacations with
their mother. Kulko, 436 U.S. at 87, 56 L. Ed. 2d at 138, 98 S. Ct. at 1694. Ezra also
agreed therein to pay a certain amount of child support for the periods when the
children were in Sharon's custody. Kulko, 436 U.S. at 87, 56 L. Ed. 2d at 138, 98 S. Ct.
at 1694. The parties obtained a divorce incorporating the terms of the separation
agreement. Kulko, 436 U.S. at 87, 56 L. Ed. 2d at 138, 98 S. Ct. at 1694. In December
1973, just before Ilsa was to leave New York to spend Christmas vacation with her
mother, she told her father she wished to remain in California after the vacation. Kulko,
436 U.S. at 87, 56 L. Ed. 2d at 138, 98 S. Ct. at 1694. Ezra acceded to his daughter's
wish, and she moved to California to stay permanently with her mother. Kulko, 436
U.S. at 87-88, 56 L. Ed. 2d at 138, 98 S. Ct. at 1694. In January 1976, Darwin called his
mother from New York and told her that he, too, wanted to live in California. Kulko,
436 U.S. at 88, 56 L. Ed. 2d at 138, 98 S. Ct. at 1694. Without Ezra's knowledge, Sharon
mailed Darwin a plane ticket, and he flew to California, where he took up residence with
his mother and sister. Kulko, 436 U.S. at 88, 56 L. Ed. 2d at 138, 98 S. Ct. at 1694.
Less than a month after Darwin's arrival in California, Sharon filed an
action against Ezra in the California superior court, seeking to increase his child-
support obligation. Kulko, 436 U.S. at 88, 56 L. Ed. 2d at 138-39, 98 S. Ct. at 1694. Ezra
specially appeared, arguing he was not a resident of California and he had insufficient
contacts with California to justify its exercise of personal jurisdiction over him. Kulko,
- 17 - 436 U.S. at 88, 56 L. Ed. 2d at 139, 98 S. Ct. at 1694-95. The California courts rejected
his jurisdictional challenge because by allowing his daughter to live with her mother in
California, he had done two things: (1) he had caused "an effect" in the state, justifying
the state courts' assertion of personal jurisdiction over him in a lawsuit arising from
that "effect"; and (2) he had purposefully availed himself of the benefits and protections
of the laws of California. Kulko, 436 U.S. at 89, 56 L. Ed. 2d at 139, 98 S. Ct. at 1695.
The Supreme Court of the United States was unpersuaded by this
rationale. "A father who agrees, in the interests of family harmony and his children's
preferences, to allow them to spend more time in California than was required under a
separation agreement can hardly be said to have 'purposefully availed himself' of the
'benefits and protections' of California's laws." Kulko, 436 U.S. at 94, 56 L. Ed. 2d at
142-43, 98 S. Ct. at 1698. "In light of our conclusion that [Ezra] did not purposefully
derive benefit from any activities relating to the [s]tate of California, it is apparent that
the California Supreme Court's reliance on [Ezra's] having caused an 'effect' in
California was misplaced." Kulko, 436 U.S. at 96, 56 L. Ed. 2d at 143-44, 98 S. Ct. at
1699.
4. World-Wide Volkswagen Corp. v. Woodson
Harry and Kay Robinson, husband and wife, bought a new Audi
automobile from Seaway Volkswagen, Inc. (Seaway), in New York. World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 288, 62 L. Ed. 2d 490, 495, 100 S. Ct. 559,
562 (1980). The Robinsons, who resided in New York, decided to move to Arizona.
World-Wide Volkswagen, 444 U.S. at 288, 62 L. Ed. 2d at 495, 100 S. Ct. at 562. As they
- 18 - were passing through Oklahoma, another car struck their Audi in the rear, causing the
Audi to catch on fire and severely burn Kay Robinson and her two children. World-
Wide Volkswagen, 444 U.S. at 288, 62 L. Ed. 2d at 495, 100 S. Ct. at 562. The
Robinsons brought a product-liability action in Oklahoma, alleging that their injuries
resulted from the defective design and placement of the Audi's gas tank and fuel system.
World-Wide Volkswagen, 444 U.S. at 288, 62 L. Ed. 2d at 495, 100 S. Ct. at 562. Among
other defendants, they named the retail dealer, Seaway, as well as the regional
distributor, World-Wide Volkswagen Corp. (World-Wide). World-Wide Volkswagen,
444 U.S. at 288, 62 L. Ed. 2d at 495-96, 100 S. Ct. at 562. Seaway and World-Wide
challenged the Oklahoma court's exercise of personal jurisdiction over them. World-
Wide Volkswagen, 444 U.S. at 288, 62 L. Ed. 2d at 496, 100 S. Ct. at 562-63. Oklahoma
rejected their challenge, and Seaway and World-Wide appealed to the Supreme Court of
the United States. World-Wide Volkswagen, 444 U.S. at 289-91, 62 L. Ed. 2d at 496-97,
100 S. Ct. at 563-64.
The Supreme Court reaffirmed the principle that a state court could
exercise personal jurisdiction over a nonresident defendant only if the defendant's
contacts with the state were such that it would be reasonable to require the defendant to
defend against the lawsuit brought there. World-Wide Volkswagen, 444 U.S. at 291-92,
62 L. Ed. 2d at 498, 100 S. Ct. at 564. With respect to the petitioners, Seaway and
World-Wide, the Supreme Court made the following observations:
"[W]e find in the record before us a total absence of
those affiliating circumstances that are a necessary predicate
- 19 - to any exercise of state-court jurisdiction. [The]
[p]etitioners carry on no activity whatsoever in Oklahoma.
They close no sales and perform no services there. They
avail themselves of none of the privileges and benefits of
Oklahoma law. They solicit no business there[,] either
through salespersons or through advertising reasonably
calculated to reach the [s]tate. Nor does the record show
that they regularly sell cars at wholesale or retail to
Oklahoma customers or residents or that they indirectly,
through others, serve or seek to serve the Oklahoma market.
In short, [the] respondents seek to base jurisdiction on one,
isolated occurrence and whatever inferences can be drawn
therefrom: the fortuitous circumstance that a single Audi
automobile, sold in New York to New York residents,
happened to suffer an accident while passing through
Oklahoma." World-Wide Volkswagen, 444 U.S. at 295, 62 L.
Ed. 2d at 500, 100 S. Ct. at 566.
The Robinsons argued that because an automobile was mobile by its very
design and purpose, it was foreseeable to Seaway and World-Wide that the Robinsons'
Audi would cause an injury in Oklahoma. World-Wide Volkswagen, 444 U.S. at 295, 62
L. Ed. 2d at 500, 100 S. Ct. at 566. The Supreme Court responded that foreseeability
alone was an insufficient benchmark for personal jurisdiction. World-Wide
- 20 - Volkswagen, 444 U.S. at 295, 62 L. Ed. 2d at 500, 100 S. Ct. at 566. In Hanson, it was
foreseeable that the settlor of a Delaware trust would move to Florida and exercise her
power of appointment there; and, in Kulko, it was foreseeable that the mother would
move to California and the daughter would want to live with her mother. World-Wide
Volkswagen, 444 U.S. at 295-96, 62 L. Ed. 2d at 500, 100 S. Ct. at 566. If foreseeability
were the criterion of personal jurisdiction, "[e]very seller of chattels would in effect
appoint the chattel his agent for service of process. His amenability to suit would travel
with the chattel." World-Wide Volkswagen, 444 U.S. at 296, 62 L. Ed. 2d at 501, 100 S.
Ct. at 566. For instance, a Wisconsin seller of a defective automobile jack could be sued
in New Jersey for damage caused there (World-Wide Volkswagen, 444 U.S. at 296, 62 L.
Ed. 2d at 500, 100 S. Ct. at 566, citing Reilly v. Phil Tolkan Pontiac, Inc., 372 F. Supp.
1205 (D. N.J. 1974)), or a Florida soft-drink concessionaire could be sued in Alaska for
injuries occurring there (World-Wide Volkswagen, 444 U.S. at 296, 62 L. Ed. 2d at 500-
01, 100 S. Ct. at 566, citing Uppgren v. Executive Aviation Services, Inc., 304 F. Supp.
165, 170-71 (D. Minn. 1969))--effectively abolishing the limitations on the sovereignty of
each state (World-Wide Volkswagen, 444 U.S. at 293-94, 62 L. Ed. 2d at 499, 100 S. Ct.
at 565).
Foreseeability was not, in the Supreme Court's view, wholly irrelevant.
"But the foreseeability that is critical to due[-]process analysis is not the mere likelihood
that a product will find its way into the forum [s]tate. Rather, it is that the defendant's
conduct and connection with the forum [s]tate are such that he should reasonably
anticipate being haled into court there." World-Wide Volkswagen, 444 U.S. at 297, 62 L.
- 21 - Ed. 2d at 501, 100 S. Ct. at 567. The manufacturer or distributor must purposefully
market its products to the forum state, either directly or indirectly. World-Wide
Volkswagen, 444 U.S. at 297, 62 L. Ed. 2d at 501-02, 100 S. Ct. at 567.
The purchase of automobiles in New York, from which Seaway and World-
Wide earned substantial revenue, would not have occurred but for the fact that the
automobiles could be used in distant states such as Oklahoma. World-Wide
Volkswagen, 444 U.S. at 298, 62 L. Ed. 2d at 502, 100 S. Ct. at 568. "However, financial
benefits accruing to the defendant from a collateral relation to the forum [s]tate will not
support jurisdiction if they do not stem from a constitutionally cognizable contact with
that [s]tate." World-Wide Volkswagen, 444 U.S. at 299, 62 L. Ed. 2d at 502, 100 S. Ct. at
568.
D. Factual Differences Between Cameron and the Present Case
In Cameron, 296 Ill. App. 3d at 981-82, 695 N.E.2d at 574-75, the plaintiffs
alleged that Charter PLC (Charter) conspired with other defendants to suppress
information about the harmful effects of asbestos and that, in furtherance of the
conspiracy, they "'sold asbestos which was used at [a] plant [in Illinois] without
warning of the hazards.'" Charter specially appeared, contending that the circuit court
lacked personal jurisdiction because Charter had no contacts with Illinois and had never
engaged in any aspect of the asbestos business, as Charter explained in an affidavit by
its secretary, Peter Thwaite. Cameron, 296 Ill. App. 3d at 987-88, 695 N.E.2d at 578-79.
We affirmed the circuit court's denial of Charter's motion for dismissal. Cameron, 296
Ill. App. 3d at 989, 695 N.E.2d at 579. In our decision, we regarded the following facts
- 22 - as important: "Thwaite's affidavit concedes that until 1979[,] Cape Industries PLC
indirectly owned companies that were engaged in the mining and marketing of
asbestos[;] that after 1969[,] Charter owned a majority interest in Cape[;] that Charter
placed three directors on Cape's board[;] that Cape’s managing director and chairman
was a member of Charter’s board[;] and that Charter and Cape filed consolidated tax
returns." Cameron, 296 Ill. App. 3d at 988, 695 N.E.2d at 579. Cameron is factually
distinguishable from the present case. The record contains no evidence that the
Chrome Coalition ever had any ownership interest, directly or indirectly, in a
manufacturer or distributor of chrome products; that it placed directors on the board of
any such entity; or that it filed consolidated tax returns with such an entity.
E. The Constitutional Difficulties With Cameron's Sweeping Rationale
In Cameron, 296 Ill. App. 3d at 986, 695 N.E.2d at 577, we stated that
"[t]he Illinois long-arm statute encompasses the conspiracy theory of jurisdiction." By
that theory, if one of the coconspirators committed a tortious act in Illinois, the courts of
Illinois acquire personal jurisdiction not only over that coconspirator but over the other
coconspirators as well. Cameron, 296 Ill. App. 3d at 990, 695 N.E.2d at 580 (Cook, J.,
specially concurring) ("it is only necessary that a conspirator perform an unlawful act
pursuant to and in furtherance of the conspiracy that causes an injury in Illinois"). As a
federal court put it, "'[u]nder Illinois law, jurisdiction over one conspirator is
jurisdiction over all.'" In re Vitamins Antitrust Litigation, 94 F. Supp. 2d 26, 33 (D. D.C.
2000), quoting Lexecon, Inc. v. Milberg Weiss Bershad Specthrie & Lerach, No. 92 c
7768 (N.D. Ill. May 24, 1993) (1993 U.S. Dist. LEXIS 6898, 1993 WL 179789 at *3) ; see
- 23 - also Textor v. Board of Regents of Northern Illinois University, 711 F.2d 1387, 1393 (7th
Cir. 1983) (actions by one coconspirator in Illinois "provide the requisite minimum
contacts between the remaining members of the conspiracy and the [forum state]"). We
cited Green v. Advance Ross Electronics Corp., 86 Ill. 2d 431, 440-41, 427 N.E.2d 1203,
1208 (1981), for the following proposition: "[F]or all coconspirators to be subject to
Illinois jurisdiction, one coconspirator must have committed a tortious act within
Illinois as agent for the other coconspirators." Cameron, 296 Ill. App. 3d at 985, 695
N.E.2d at 577.
In the referenced passage in Green, the supreme court stated as follows:
"It is not true that if one conspirator is subject to
Illinois jurisdiction[,] so are all the others. Rather, the
theory of jurisdiction based on the acts of a co[]conspirator
must be that co[]conspirators are each others' agents; thus[,]
the argument would be that when a conspirator commits a
tortious act within Illinois[,] he does so as agent for his co-
conspirators, who thereby also become subject to this
[s]tate's jurisdiction." Green, 86 Ill. 2d at 440-41, 427
N.E.2d at 1208.
Some 16 years after deciding Green, the supreme court held that no agency relationship
could exist between coconspirators (Buckner, 182 Ill. 2d at 24, 694 N.E.2d at 571),
effectively scuttling the "theory of jurisdiction" (stated in Green merely for the sake of
- 24 - description) whereby a coconspirator commits a tortious act in Illinois as agent for his
coconspirators."
In Green, the supreme court seemed to express some reservation about the
conspiracy theory of jurisdiction. It observed: "The idea of jurisdiction based on the
acts of co[]conspirators has been questioned. (Chromium Industries, Inc. v. Mirror
Polishing & Plating Co. (N.D. Ill. 1978), 448 F. Supp. 544, 552.)." Green, 86 Ill. 2d at
441, 427 N.E.2d at 1208. In Cameron, immediately after noting the supreme court's
apparent statement of reservation and its citation of Chromium Industries, we remarked
that "the legislative amendment of section 2-209 of the Code to add what is now
subsection (c) effectively overruled the language in Green *** to the effect that a statute
worded such as that in Illinois should have a fixed meaning"--as if to suggest that the
legislative amendment, by broadening section 2-209 to encompass jurisdiction on any
constitutionally permitted basis, had cured the supreme court's concern about the
conspiracy theory of jurisdiction. Cameron, 296 Ill. App. 3d at 985, 695 N.E.2d at 577;
see also In re Vitamins Antitrust Litigation, 94 F. Supp. 2d at 32 ("Chromium has been
effectively overruled by the legislative amendment of section 2-209"). But the federal
court's concern in Chromium Industries (and, therefore, the supreme court's concern in
Green) was not simply with the limited scope of the preamendment version of section 2-
209. The federal court explained:
"Chromium's theory is that if one co[]conspirator
commits an overt act causing tortious injury in Illinois, all
participants in the conspiracy are deemed to have subjected
- 25 - themselves to the jurisdiction of the Illinois courts. Here the
alleged overt act was performed by Mirror alone. Chromium
does not point to any overt tortious acts connecting Roll
Grinding or Plasma with Illinois. We have already held that
these two corporations do not transact business in Illinois.
Thus[,] the co[]conspirator theory would permit jurisdiction
over defendants with no direct contacts with the forum
district.
We cannot subscribe to this theory. Conspiratorial
activities having tortious consequences in this district, at
least in the amount shown here, are not a sufficient basis for
jurisdiction in the absence of any other contacts."
(Emphases added.) Chromium Industries, 448 F. Supp. at
552.
See also A. Althouse, The Use of Conspiracy Theory To Establish In Personam
Jurisdiction: A Due Process Analysis, 52 Fordham L. Rev. 234, 253 (1983) ("Automatic
attribution of contacts upon a showing of conspiracy avoids consideration of the
individual defendant's contact with the forum state--the very essence of jurisdiction");
S. Riback, The Long Arm and Multiple Defendants: The Conspiracy Theory of In
Personam Jurisdiction, 84 Colum. L. Rev 506, 510 (1984) ("[The] basic premise [of the
conspiracy theory of jurisdiction]--that acts of one conspirator may be attributed to
co[]conspirators for jurisdictional purposes--is seriously flawed. The theory looks to
- 26 - the contacts of the conspiracy with the forum, rather than to the contacts of each
conspirator"). The repeated references to "contacts," in the quoted passage from
Chromium Industries, are an unmistakable allusion to International Shoe, which the
federal court cited, earlier in its decision, for the proposition that "in order to exercise in
personam jurisdiction over a non[]resident defendant, due process requires that he
have certain 'minimum contacts' with the forum so that ‘maintenance of the suit does
not offend traditional notions of fair play and substantial justice.’" Chromium
Industries, 448 F. Supp. at 550, quoting International Shoe, 326 U.S. at 316, 90 L. Ed. at
102, 66 S. Ct. at 158. Thus, we must infer, our supreme court was concerned that the
conspiracy theory of jurisdiction would allow the exercise of personal jurisdiction over a
nonresident defendant who had no minimum contacts with the forum state. We should
be concerned, too.
We find, in the record before us, a "total absence of *** affiliating
circumstances" between the Chrome Coalition and the State of Illinois. World-Wide
Volkswagen, 444 U.S. at 295, 62 L. Ed. 2d at 500, 100 S. Ct. at 566. This nonresident
defendant has never purposefully availed itself of the benefits and protections of Illinois
laws. See International Shoe, 326 U.S. at 319, 90 L. Ed. at 104, 66 S. Ct. at 160; Hanson,
357 U.S. at 253, 2 L. Ed. 2d at 1298, 78 S. Ct. at 1240. That the Chrome Coalition
theoretically might derive some benefit from its members' profitable activities in this
state (in the vague sense that what is good for the members is good for the association)
does not make the Chrome Coalition subject to this state's personal jurisdiction.
"[F]inancial benefits accruing to the defendant from a collateral relation with the forum
- 27 - [s]tate will not support jurisdiction if they do not stem from a constitutionally
cognizable contact with that [s]tate." World-Wide Volkswagen, 444 U.S. at 299, 62 L.
Ed. 2d at 502, 100 S. Ct. at 568.
Plaintiff alleges that the Chrome Coalition conspired with other
defendants to spread false information, to wit, that chrome posed no hazard to human
health. Plaintiff does not allege, however, that the Chrome Coalition intended Illinois to
be a particular target of this false information; she does not allege any activity that the
Chrome Coalition purposefully directed at Illinois. See World-Wide Volkswagen, 444
U.S. at 295, 62 L. Ed. 2d at 500, 100 S. Ct. at 566 ("They solicit no business there ***
through advertising reasonably calculated to reach the State"). As both Kulko and
World-Wide Volkswagen teach, it is not enough that the Chrome Coalition caused or
contributed to an "effect" in Illinois. Kulko, 436 U.S. at 96, 56 L. Ed. 2d at 143-44, 98 S.
Ct. at 1699; World-Wide Volkswagen, 444 U.S. at 296, 62 L. Ed. 2d at 500-01, 100 S. Ct.
at 566 (foreseeability). "A contact with the forum state will serve to give it jurisdiction
only if the defendant himself had control over the choice of the geographical target of
his activities and chose to direct his activities at the forum state. That he caused an
effect in a certain state is not enough; he must have purposefully aimed at the state in
causing that effect." 84 Colum. L. Rev. at 515. According to the amended complaint, the
Chrome Coalition merely agreed to let loose some misinformation upon the world.
"[T]he mere likelihood that [the misinformation would] find its way into the forum
[s]tate" will not subject the Chrome Coalition to the personal jurisdiction of that state.
World-Wide Volkswagen, 444 U.S. at 297, 62 L. Ed. 2d at 501, 100 S. Ct. at 567.
- 28 - Intangible information cannot become the Chrome Coalition's roving agent for service
of process any more than a tangible chattel could. See World-Wide Volkswagen, 444
U.S. at 296, 62 L. Ed. 2d at 501, 100 S. Ct. at 566. Allegedly, other coconspirators chose
Illinois as a place in which to sell chrome without warning of its dangers. The record
appears to contain no evidence that the Chrome Coalition had any agreement with them
regarding Illinois. Other coconspirators, not the Chrome Coalition, purposefully
directed their activities at Illinois. "The unilateral activity of those who claim some
relationship with a nonresident defendant cannot satisfy the requirement of contact
with the forum [s]tate." Hanson, 357 U.S. at 253, 2 L. Ed. 2d at 1298, 78 S. Ct. at 1239-
40.
This is not to say that the Chrome Coalition is immune from liability for
civil conspiracy--any more than Seaway and World-Wide were immune from liability
for the alleged defect in their product. Plaintiff must enforce that liability, however, in
the correct forum--a forum with which the Chrome Coalition has sufficient
jurisdictional contacts. "It is elementary that the fact of liability does not confer
jurisdiction[;] yet[,] by endowing a conspiracy with an independent jurisdictional
significance, the conspiracy theory does just that." 84 Colum. L. Rev. at 510. "The
requirements of International Shoe *** must be met as to each defendant over whom a
state court exercises jurisdiction." Rush v. Savchuk, 444 U.S. 320, 332, 62 L. Ed. 2d
516, 527, 100 S. Ct. 571, 579 (1980). There is no shortcut, and there is no substitute, for
the analysis required by International Shoe and its progeny. "[A] court should look at
each defendant's activities. If a conspirator's actions were purposefully aimed at the
- 29 - forum, then jurisdiction is present. If not, assertion of jurisdiction would be
unconstitutional, even though liability might attach under the substantive law of
conspiracy." (Emphasis omitted.) 84 Colum. L. Rev. at 524.
III. CONCLUSION
For the foregoing reasons, we reverse the circuit court's judgment.
Reversed.
MYERSCOUGH and TURNER, JJ., concur.
- 30 -