George A. Finkle, Judge

To meet STC's jurisdictional challenge at this early stage of the litigation, the State's burden is limited to demonstrating a prima facie jurisdictional case. STC's motion to dismiss should be granted only if it appears, beyond doubt, that the State can prove no set of facts consistent with the complaint to support its claim that Washington jurisdiction is proper. Berge v. Gorton, 88 Wn.2d 756, 759 (1977).

For purposes of this motion, the court must therefore accept the State's allegations as true (Lewis v. Bours, 119 Wn.2d 667, 670 (1992)): STC was incorporated in New York State in 1969 to conduct, collect, and disseminate research regarding smokeless tobacco products. STC has been funded by the defendant tobacco manufacturers to aid the manufacturers in deceiving the public about the health impacts of tobacco constituents and in restraining trade in safer products. The defendant tobacco manufacturers dominate STC and have actively participated in its operations. STC has avoided research that might weaken the manufacturers' position on the relationship between tobacco constituents and health. STC has sought to develop witnesses to present a unified tobacco industry position on the physical and social costs associated with smoking. STC has conducted such activities as the manufacturers' agent, employee, and co-conspirator. [ The facts recited herein were either alleged in the complaint or were asserted in the briefs and are consistent with the allegations in the complaint. Defendant Brown & Williamson Tobacco Corporation's Objection to the Exhibits to the Declaration of Lawrence O. Little Submitted in Support of Plaintiffs' Memorandum in Opposition to Smokeless Tobacco Council Inc.'s Motion to Dismiss re Personal Jurisdiction is overruled. In the context of a CR 12(b)(6) motion, it is the factual allegations of the complaint that are relevant, not the ultimate admissibility of the evidence upon which such allegations may rely.]

General jurisdiction under RCW 4.28.080(10) permits Washington courts to hear cases unrelated to a defendant's activities in Washington if the defendant's transaction of business in Washington has been substantial, continuous, and of such character as to give rise to a legal obligation. General jurisdiction subsumes Due Process requirements. Harbison v. Garden Valley Outfitters, Inc., 69 Wn.App. 590, 595-96 (1993).

The only conduct that STC itself appears to have engaged in within the borders of Washington consists of lobbying and political activities, conduct on which the State's claim of jurisdiction does not rely. (See Plaintiffs' Memorandum in Opposition, p.3 n.1.) Instead, the State appears to rely on assertions that STC was "dominated by U.S. Tobacco" and was the agent of the tobacco industry. The State argues that STC, as the agent or subordinate of the defendant manufacturers, was "doing business" in Washington through the conduct of those manufacturers, and should therefore be subjected to Washington's general jurisdiction. Even assuming that agency and control have been adequately pled, the State's argument cannot support general jurisdiction because the alleged domination runs in the wrong direction. In cases which hold that agency or control can form the basis of general jurisdiction, it is the dominant entity or principal that is required to defend in the forum state on the basis of activities conducted on its behalf by the subordinate or agent. See Crose v. Volkswagenwerk Antiengesellschaft, 88 Wn.2d 50 (1977); Pacific Typesetting Co. v. International Typographical Union, 125 Wn.273 (1923).

Here, the alleged activities within the forum state, Washington, were conducted by the principals. STC is not alleged to have controlled the conduct of the manufacturer defendants. Forcing STC to defend based on its principals' conduct of business in Washington would be no more justifiable than subjecting a New York bread company, wholly-owned and dominated by one of the manufacturer defendants, to Washington jurisdiction because the manufacturer defendant had engaged in illegal conduct here. Because STC's own actions within Washington, either individually or as the agent of the manufacturer defendants, have not been substantial and continuous and do not constitute "doing business" within the meaning of RCW 4.28.080(10), Washington general jurisdiction over STC does not lie.

Consideration of personal jurisdiction under Washington's long-arm statute, RCW 4.28.185, involves two questions: (1) does the language of the statute purport to extend jurisdiction to Washington and, if so, (2) would imposing Washington jurisdiction in this particular case violate constitutional Due Process principles? Grange Ins. Ass'n v. State, 110 Wn.2d 752, 756 (1988), cert. denied, 490 U.S. 1004 (1989).

A. The "Language of the Statute:" The Consumer Protection Act and RCW 4.28.185

Personal service of process in an action under the Washington Consumer Protection Act "may be made upon any person outside the state if such person has engaged in conduct which has had the impact in this state which this chapter reprehends." RCW 19.86.160. The State alleges that STC engaged in conduct in violation of the CPA which has had an impact within this state. Under RCW 19.86.150, persons who fall within the service provisions of the CPA are "deemed to have thereby submitted themselves to the jurisdiction of the courts of this state within the meaning of RCW 4.28.125." Thus, Washington's long-arm statute purports to extend jurisdiction over STC. Since the Washington long-arm statute is intended to extend jurisdiction to the full extent permitted by the Due Process clause (subject only to the statutory limitations), Washington long-arm jurisdiction will lie in the present case as long as the extension of jurisdiction is consistent with Due Process. See Tyree Constr. Co. v. Dulien Steel Prod., Inc., 62 Wn.2d 106, 115-116 (1963).

B. Due Process

Once a statutory basis of Washington jurisdiction is established, the well-settled constitutional Due Process test must be applied:

1. A non-resident defendant or foreign corporation must purposely do some act or consummate some transaction in the forum state;

2. The cause of action must arise from, or be connected with, such act or transaction; and

3. The assumption of jurisdiction must not offend traditional notions of fair play and substantial justice, consideration being given to (a) the quality, nature, and extent of the activity in the forum state, (b) the relative convenience of the parties, (c) the benefits and protection of the laws of the forum state afforded the respective parties, and (d) the basic equities of the situation.

See e.g., Tyee Constr., 62 Wn.2d at 115-116. Since Tyee was decided in 1963, the permitted scope of long-arm jurisdiction has gradually evolved in recognition of the fact that a person who has never entered a forum state is capable of exerting considerable power and causing significant damage therein. As part of this evolution, the cases have recognized that the physical presence of a person within the forum state is not a prerequisite to the exercise of personal jurisdiction, as long as the person's activities outside the state create sufficient minimum contacts within the state. See Calder v. Jones, 465 U.S. 783 (1984) (jurisdiction proper where non-residents intentionally aim their activities toward the forum state and know that any inquiries resulting from those activities will occur in that state); International Sales & Lease, Inc. v. Seven Bar Flying Serv., Inc., 12 Wn.App. 894 (1975) (jurisdiction proper where impact within the forum state is foreseeable, even if not extensive or physical); Leasco Data Processing Equip. Corp. v. Maxwell, 468 F.2d 1326 (2d Cir. 1972) (jurisdiction proper only if defendant "know[s], or ha[s] good reason to know, that his conduct will have effects in the state seeking to assert jurisdiction over him").

1. "Purposeful Acts" and Minimum Contacts

a. Foreseeability and Effects

Foreseeability, without more, does not satisfy the minimum contacts requirement and cannot support personal jurisdiction. Similarly, the mere fact that a defendant's actions outside the forum state have effects, even drastic effects, with the forum state will not, standing alone, support personal jurisdiction. In World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-299 (1980), the Supreme Court held that the fact that it was foreseeable that a car purchased in New York might be driven to Oklahoma and cause a personal injury there (i.e., have an effect) did not permit Oklahoma to exercise jurisdiction over the car sellers who resided in New York. The sellers had no prior "conduct in connection with the forum state," had not purposely availed themselves of the "privilege of conducting activities within the forum state," and had done nothing to institute the contact which gave rise to plaintiffs' claims in Oklahoma. Such minimum contacts are prerequisites to the valid exercise of personal jurisdiction over a non-resident defendant. See also, Asahi Metal Indus. Co., Ltd. v. Superior Court of California, 480 U.S. 102 (1987); Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985).

To confer jurisdiction, the defendant's conduct and connection with the forum state must be "such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen, 444 U.S. at 297. Such is the case where the effects of defendant's conduct have been intentionally caused through the purposeful direction of activity toward the forum state. In Calder v. Jones, supra, for example, the Florida writer and editor of an allegedly defamatory article were held to be subject to California jurisdiction because they knew that the article concerned a California citizen, they knew it would be distributed in California, and they knew that if injury resulted, it would occur in California.

The State alleges that STC engaged in research, data gathering, and witness development efforts in support of the tobacco industry. The State further alleges that STC's close relationship with the manufacturer defendants gave STC the knowledge that its efforts would be used by the manufacturers to soothe health-related fears in Washington: STC was not merely an independent research organization that did not know how its funding sources planned to use the data it generated, but rather was an active participant in conduct which it knew would be used to deceive or otherwise injure the State of Washington and/or its citizens.

A defendant's intentional conduct outside the forum state, which the defendant knows will be used by another to cause injury within the forum state, may be the basis of personal jurisdiction. See Calder v. Jones, supra, (California jurisdiction proper over Florida author and editor who knew publisher would distribute article in forum state). Cf. Underwager v. Channel 9 Australia, 69 F.3d 361 (9^th Cir. 1995) (jurisdiction improper where non-resident participants in a libelous program in Australia did not know that a third party would show the program in the forum state). While STC did not directly injure Washington or its citizens, it allegedly engaged in activities which it knew would be used by others throughout the United States and was aware that any injuries caused by its conduct would occur throughout the country, including in Washington. The State seeks to establish jurisdiction based on STC's Washington-directed conduct for which STC should have "reasonably anticipated being haled into court" in Washington. STC has the requisite minimum contacts to support Washington jurisdiction.

b. Conspiracy

The State also asserts that Washington jurisdiction is proper because STC entered into a conspiracy with the manufacturer defendants with the object of disseminating misleading materials throughout the United States to promote the economic interests of the tobacco industry. STC argues that the application of this conspiracy theory of jurisdiction would violate Due Process.

Courts have been willing, in principle, to consider basing the exercise of personal jurisdiction over a non-resident member of a conspiracy on the actions of co-conspirators in the forum state if (1) the plaintiff alleges the existence of a conspiracy in which the non-resident took part, (2) the plaintiff's allegations are not merely conclusory, and (3) the non-resident's participation makes it probable that he or she knew or should have known that the activities taken in furtherance of the conspiracy would be directed toward and have effects within the forum state. See Underwager, supra (jurisdiction improper where non-residents did not know their actions would have effect in forum state); Edmond v. U.S. Postal Serv. General Counsel, 949 F.2d 415 (D.C. Cir. 1991), rehearing denied, 953 F.2d 1398 (D.C. Cir. 1992) (allegations of conspiracy were far from conclusory and case was remanded for discovery); Ecclesiastical Order of the ISM of AM, Inc., v. Chasin, 845 F.2d 113 (6^th Cir. 1988) ("some minimal factual showing" must support allegations of conspiracy); Thomas v. Kadish, 748 F.2d 276 (5^th Cit. 1984), cert. denied, 473 U.S. 907 (1985) (allegations of conspiracy merely conclusory and fail to establish minimum contacts with forum state); McLaughlin v. McPhail, 707 F.2d 800 (4^th Cir. 1983) ("Courts that have approved the exercise of long-arm jurisdiction pursuant to the conspiracy theory typically require the plaintiff to make a threshold showing, inter alia, that a conspiracy existed and that the defendants participated therein"); Vermont Castings, Inc. v. Evans Prod. Co., 510 F. Supp. 940, 944 (D.Vt. 1981) (jurisdiction proper where substantial acts in furtherance of the conspiracy were performed in the forum state and where the non-resident co-conspirator knew or had good reason to know that his conduct would have effects in the forum state). See also Stauffacher v. Bennett, 969 F.2d 455 (7^th Cir.), cert. denied, 506 U.S. 1034 (1992) (whether conspiracy theory supports jurisdiction is a matter of state, not federal constitutional law).

While some courts, most notably those in California, have held that the conspiracy theory of jurisdiction is constitutionally infirm because the actions of one defendant can never fairly be used to hale another, non-resident, defendant into a foreign court (See Kipperman v. McCone, 422 F. Supp. 860 (N.D. Cal. 1976); Mansour v. Superior Court, 46 Cal.Rptr.2d 191 (Cal. App. 1995)), there is a definite trend, as evidenced by the decisions recited above, to consider the quality and character of the contacts with the forum state on a case-by-case basis. The fact that courts have seldom found jurisdiction based on the conspiracy theory does not appear to be due to any constitutional deficiency in the theory, but rather because the plaintiff has failed to allege sufficient facts to support the existence of a relevant conspiracy.

In the present case, the State has alleged the existence of a conspiracy involving STC, has alleged facts and produced documents in support of its allegations, and has alleged circumstances under which it is probably that STC knew or should have known that its co-conspirators were taking actions in Washington and impacting Washington. Under the facts alleged by the State, the court finds no persuasive analytical difference between the knowing commission of acts in a forum state through co-conspirators and the knowing direct commission of such acts. Thus, the acts of STC's alleged co-conspirators and the knowing direct commission of such acts. Thus, the acts of STC's alleged co-conspirators (the manufacturer defendants) satisfy the first prong of the Due Process test -- they create minimum contacts between STC and Washington that support the exercise of jurisdiction.

2. Action Arising Out of Minimum Contacts

The State has filed this action against STC and the manufacturer defendants claiming injuries to, caused by, and arising out of the alleged actions and conspiracy that form the basis of STC's contacts with Washington. The second prong of the Due Process test is satisfied.

3. "Fair Play and Substantial Justice"

Thus, if the exercise of Washington jurisdiction over STC would comport with the third prong of the Due Process test, "traditional notions of fair play and substantial justice," jurisdiction will lie.

STC cites Hewitt v. Hewitt, 78 Wn.App. 447 (1995), for the proposition that the extension of Washington jurisdiction under the conspiracy theory would not be consistent with such traditional notions. in Hewitt, the plaintiff and most of the defendants were non-residents of Washington, the defendants did not own property in Washington or personally perform any relevant acts in Washington, no injuries occurred in Washington, the defendants could not "reasonably anticipate being haled into court" in Washington, Washington did not have a strong interest in adjudicating the dispute, and Washington was an inconvenient forum. In light of those considerations, the allegation that a resident defendant did not constitute contacts of a "quality, nature, and extent" that would justify the extension of jurisdiction. Hewitt, 78 Wn.App. at 453-55. If the focus of the conspiracy had been directed toward Washington, the Hewitt court might well have found Washington jurisdiction to lie. Hewitt does not appear to stand for the proposition that the conspiracy theory may never be the basis for Washington jurisdiction. Instead, the court must determine whether subjecting STC to the jurisdiction of Washington courts would be fair, reasonable, and just in the alleged circumstances of the present case.

In World-Wide Volkswagen, 444 U.S. at 292, the Supreme Court noted that the burden on a defendant involved in the exercise of long-arm jurisdiction, while always a primary concern, will in an appropriate case be considered in the light of other relevant factors, including:

1. the forum State's interest in adjudicating the dispute (in the present case, such interest is high);

2. the plaintiff's interest in obtaining convenient and effective relief, at least when that interest is not adequately protected by the plaintiff's power to choose the forum (in the present case, the State's theoretical ability to choose STC's New York State domicile would not protect its interest);

3. the judicial system's interest in obtaining the most efficient resolution of the controversy (in the present case, piecemeal or abandoned litigation would be the likely consequence of denying Washington jurisdiction);

4. and the shared interest of the several states in furthering fundamental substantial social policies (in the present case, the relief sought by the State relates to policies reasonably asserted to be fundamental and substantial).

World-Wide Volkswagen notes that the limits imposed on state jurisdiction by the Due Process clause in its role as guarantor against inconvenient litigation have been substantially relaxed over the years, largely attributable to transformations in the American economy. 444 U.S. at 292-293. World-Wide Volkswagen states that the foreseeability that is critical to Due Process analysis is that the defendant's conduct in connection with the forum state be such that the defendant should reasonably anticipate being haled into court there. 444 U.S. at 297. In the present case, assuming the truth of the State's allegations regarding STC's involvement in a nationwide tobacco conspiracy, STC should reasonably anticipate being haled into court in the several states, including Washington, in which the conspiracy was effectuated. The plaintiff is the State of Washington; the injuries are alleged to have occurred in Washington; Washington appears to be the most convenient forum for adjudicating the State's dispute with STC under Washington law; STC was an alleged member of a conspiracy which was intended to have nationwide effects; STC engaged in activities knowing they would cause effects in Washington; STC should reasonably have expected to face litigation regarding the alleged wrongs in Washington; and Washington has a strong interest in the specific dispute. Thus, notions of fair play and substantial justice do not bar the exercise of Washington jurisdiction over STC.

STC's motion to dismiss for lack of personal jurisdiction is denied. RCW 19.86.160 and RCW 4.28.185 extend Washington jurisdiction over STC. Forcing STC to defend this suit in Washington would not violate Due Process. If, following discovery, STC believes that no genuine issue of fact exists concerning the State's factual allegations supporting the above jurisdictional analysis, it may bring a motion for summary judgment. The jurisdictional facts may, however, be found to be intertwined with, and dispositive of, STC's ultimate liability.

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