sinfiery wrote:Hey, so how exactly does the test in Asahi coincide with the test in Volkswagon?
In VW, you have to have needed to know you could be sued in a state (which is weird because if you know a product can end up in the state, you know it can malfunction there..) so they instead used a directed activity test (is this purposeful availment?) so that the product would not serve as an implied agent for the seller no matter where it went
Under Asahi, the plurality would likely resemble closely with that decision. You can't just forsee the car being driven to OK, you need to have purposefully availed yourself to the specific market.
Whereas the Bernnan dissent would likely overrule VW?
Or would the important distinction be different because one is speaking towards where a product can be taken versus the other where it can be potentially sold?
I'm not sure how to put the two together
Upon further thought I think Asahi O'Conner standard comes from the WV idea but is only applied to stream of commerce cases and WV is applied to non-stream of commerce cases
Am I missing something?
I am confused as to what you're asking. Not sure if that is because I'm so tired or because of the way you worded the question.
Directed activity = purposeful availment, yes. You are also right that VW's majority ruling is the base for the reasoning given in Asahi, and that the major difference is that VW was talking about an isolated incident (one car that happened to find itself in OK), while Asahi is talking about stream of commerce (a product repeatedly finding its way to CA, albeit indirectly).
Brennan wrote one of the dissents in WWVW, so yeah, he would have absolutely overruled that outcome if he could have. That dissent was very consistent with his partial dissent in Asahi; he believed that foreseeability was enough for purposeful availment. His POV on this was even stronger in Asahi because that wasn't a one-time incident, but a regular occurrence, so the 'mere' foreseeability became not only predictable, but even expected. The Asahi defendant knew the buyer was using its valve assembly to build motorcycle tubes, and that it regularly marketed those tubes to people in CA. Under Brennan's reasoning, if the def. didn't want to purposefully avail itself to CA law it shouldn't have sold valves to a company that it knew got a decent amount of its sales from there.
And Brennan even made it a point in his Asahi dissent to note how the majority there was contradicting the majority opinion from WWVW (b/c the WWVW majority was all 'there's a difference between goods reaching a state through the chain of distribution, and one consumer taking the goods there' but then in Asahi they were suddenly like 'eh, you know what, we guess chain of distribution is not that different after all, it's not enough').
"Or would the important distinction be different because one is speaking towards where a product can be taken versus the other where it can be potentially sold?"
This isn't quite
the distinction Brennan was trying to point out, I don't think. He was just noting the difference between a a consumer taking the product to the forum state and the stream of commerce causing the product to end up in the forum state. The majority in Asahi didn't see a notable difference at all; they believed that the product was only being "taken" to the forum state via the direct consumer.