Justices Need to Clear Up Murky Waters of ‘Stream of Commerce’

The Bottom Line

• The “stream of commerce” doctrine was meant to provide guidance on whether companies can be sued when their products are distributed in states where the companies don’t have a physical presence.
• Five decades of court decisions have created a circuit-by-circuit patchwork where the same conduct and level of contact can lead to personal jurisdiction in some states but not others.
• The US Supreme Court should weigh in again to offer clarity to businesses.

Nearly 50 years in, the stream-of-commerce doctrine remains an ill-defined outgrowth of judicial power. At a basic level, it says that defendants may be sued (at least sometimes) in states where their products are distributed, even when they otherwise lack a physical presence in those states.

But appellate courts continue to fracture over the doctrine’s contours. As a result, a manufacturer whose products are distributed nationwide may be subject to personal jurisdiction in some jurisdictions, but not others.

Businesses, always averse to uncertainty, need guidance from the US Supreme Court on where they can be sued.

The Supreme Court

Originally, the stream-of-commerce doctrine was intended to provide greater clarity for personal jurisdiction analyses involving out-of-state manufacturers. Some members of the Supreme Court envisioned a framework for exercising jurisdiction over a defendant who “delivers its products into the stream of commerce,” but otherwise lacks minimum contact with the forum state.

As Justice William Brennan explained, the “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.”

But this premise of predictability remains unrealized. The Supreme Court has twice split on the doctrine’s framework.

First, in Asahi Metal, the high court issued two separate plurality opinions that took differing views on the doctrine’s reach. Writing for one plurality, Justice Brennan opined that a defendant may be subject to a court’s jurisdiction as long as the defendant was “aware that the final product is being marketed in the forum State.”

Writing for the other plurality, Justice Sandra Day O’Connor opined that “placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State.” Instead, she explained, the defendant must engage in some “[a]dditional conduct” that demonstrates “an intent or purpose to serve the market in the forum State.”

Second, when the Supreme Court last considered the doctrine in Nicastro, Justice Anthony Kennedy noted that “this case presents an opportunity to provide clarity.” But the court again fractured in Nicastro.

Writing for yet another plurality, Justice Kennedy took the position that the stream-of-commerce doctrine “does not amend the general rule of personal jurisdiction”—the defendant must still “purposefully avai[l] itself of the privilege of conducting activities within the forum State.”

That view failed to garner support from a majority of the justices. Concurring in the judgment, Justice Stephen Breyer reasoned it was “unwise to announce a rule of broad applicability,” noting that what “might appear fair in the case of a large manufacturer … might seem unfair in the case of a small manufacturer.”

Since Nicastro, the court hasn’t shown an appetite to refine the doctrine’s scope. Most recently, in January 2026, the court rejected a pair of related petitions for certiorari filed by foreign auto manufacturers—Audi and Volkswagen—who had been subjected to litigation in California state court based on the sales and marketing of independent distributors.

As Audi’s petition lamented: “It is hard to believe that the confusion on this core aspect of personal jurisdiction has persisted for so long.” But such is the state of the stream-of-commerce doctrine.

In the absence of clear guidance from the Supreme Court, federal circuit courts have been left to devise their own contours, and, unsurprisingly, have likewise fractured.

‘Awareness’ or ‘Availment’

On one end of the spectrum are US Courts of Appeals for the Fifth and Seventh Circuits.

Aligning themselves with Justice Brennan’s approach, those courts take the view that “minimum contacts” are satisfied where a defendant “deliver[s] products into the stream of commerce” with the mere “expectation” that its goods will be “purchased by or used by consumers in the forum.”Under such a regime, “minimum contacts” are established so long as a defendant is “aware that the final product is marketed in the forum state”—“targeting” isn’t required.

On the opposite end, the Third and Fourth Circuits essentially dismissed the stream-of-commerce doctrine entirely. In effect, these courts declined to tailor the jurisdictional inquiry to the particular sub-class of defendant, asking only whether the “defendant purposefully avails itself of the privilege of conducting activities within the forum state.”

In support of this framework, the Third Circuit reasoned that a “plurality of Supreme Court Justices has twice rejected the stream-of-commerce theory.” This analysis follows the one set out by Justice Kennedy in Nicastro, where he underscored that, while a defendant’s expectation “may indicate purposeful availment,” there is no basis to “amend the general rule of personal jurisdiction.”

‘Something More’

Falling somewhere between these poles, the First, Sixth, Ninth, and D.C. Circuits have recently affirmed a middle-ground, requiring “something more” beyond awareness.They have explained that “mere placement of a product into the stream of commerce,” standing alone, does not satisfy the requirements of personal jurisdiction.

Some of these courts have expressly adopted Justice O’Connor’s approach from Asahi, which is often referred to as the “stream of commerce ‘plus’ approach.”

Other courts have been more equivocal. The DC Circuit explained in adopting this formulation that it would “take no position here on which Asahi theory should prevail.” Rather, the DC Circuit simply lamented that the “choppy waters” of the doctrine “have plagued lower courts for years.”

Business Uncertainty

The business implications of these fissures are dramatic. Businesses whose products are distributed on a national scale should be aware that they may be subject to suit in some places where their products are distributed, but not others.

For example, a manufacturer might be forced to defend against a products liability lawsuit in Illinois simply because it knows its products are distributed in that state, even if the manufacturer has no other contact with the state. However, that same manufacturer may well be protected from suit in Pennsylvania because the prevailing federal law in that circuit differs from the prevailing law in Illinois.

In still other jurisdictions, it may be unclear whether that same manufacturer will be subject to personal jurisdiction because the circuit court hasn’t clearly weighed in on the applicability of the stream-of-commerce doctrine. By choosing to distribute products nationally, manufacturers subject themselves to a near inescapable jurisdictional patchwork.

For those businesses with more targeted distribution, it is imperative to understand the jurisdictional regime within a given region. A regional business should consider whether it is worthwhile to allow its products to be distributed in additional parts of the country where mere distribution of the product itself could subject the business to personal jurisdiction.

These concerns are heightened by an ever-more interconnected world in which products are sold online and distributed throughout the country. As Justice Brennan explained nearly 50 years ago, the “model of society on which the International Shoe Court based its opinion is no longer accurate.” And with ever-deepening division among the circuit courts in applying the stream-of-commerce doctrine, the need for clarity is greater than ever.

The stream-of-commerce doctrine may be on thin ice. In Nicastro, the plurality dismissed it as little more than a “metaphor” leading courts “far afield.” But as it stands now, at least in many circuits across the country, the doctrine still has real implications for businesses whose products are distributed on a national or regional scale.

The doctrine continues to create widespread uncertainty about the due process rights of defendants, the scope of judicial power to force those defendants to defend themselves in court, and the capacity of plaintiffs to seek redress.

The Supreme Court should take up the issue and provide clarity on whether the stream-of-commerce doctrine remains a viable basis for personal jurisdiction, and if so, what criteria must be met to satisfy it.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Ted Tsekerides is a litigation partner, Aaron Curtis is counsel, and Gus Ipsen is an associate at Weil in New York.

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