revisit its earlier legal conclusion in light of both Myers and the underdeveloped but existing record in Ethridge.
In doing so, the court underscores that appellate judges may independently search the record and refine the legal framework, even where counsel has not fully marshaled all available arguments.
7. Procedural and Ancillary Authorities
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Albrechtsen v. Board of Regents of Univ. of Wis. Sys., 309 F.3d 433 (7th Cir. 2002) &
United States v. del Carpio Frescas, 932 F.3d 324 (5th Cir. 2019):
Both contain the oft-quoted line that “judges are not like pigs, hunting for truffles buried in the record.” The Fifth Circuit invokes these cases to emphasize that it is normally counsel’s duty to identify key facts. But in this unusual instance, the panel nevertheless undertook its own “truffle hunt” after Myers signaled what kinds of facts mattered.
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Fed. R. Civ. P. 41(b) & Semtek International Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001):
These authorities establish that a “dismissal without prejudice” generally does not bar the plaintiff from returning “later, to the same court, with the same underlying claim.” The panel cites them to reassure that its jurisdictional ruling is not a merits judgment and does not preclude Ethridge from refiling with additional jurisdictional facts.
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Fed. R. App. P. 40 & 5th Cir. R. 40 (and related I.O.P.):
These rules govern panel rehearing and rehearing en banc. The per curiam order explains that panel rehearing is the “ordinary means” of reconsidering a panel decision; en banc rehearing is “not favored.” Once the panel granted rehearing, it retained control of the case, and Judge Oldham’s vote on the en banc poll was not counted.
B. The Court’s Legal Reasoning
1. Reassessing the Factual Record in Light of Myers
The critical move in the substituted opinion is factual, not just legal. In the earlier, now-withdrawn opinion, Samsung had emphasized that it markets 18650 cells to corporate clients in Texas but had provided only a vague footnote reference to its efforts to limit sales to “approved products.” Counsel did not explain what those “careful steps” were, what counted as “approved products,” or how Samsung policed its distribution channels.
After reading the Seventh Circuit’s detailed description of Samsung’s business model in Myers, the Fifth Circuit suspected that similar facts might exist in its own record. Using its “independent power” under Kamen, the panel dug into the record and found:
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A declaration paragraph (previously uncited) stating that Samsung went to “great lengths” to prevent consumers like Ethridge from obtaining 18650 cells.
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A “customer vetting process” documented at ROA.645, under which prospective customers had to apply to purchase 18650 cells, and Samsung rejected applications with “connections to the e‑cigarette industry.”
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Website and packaging warnings explaining the risk of serious injury or death from consumer use of loose 18650 cells.
This evidence mirrored the core features described in Myers and confirmed that Samsung:
- intended to sell 18650 cells only to industrial customers,
- wanted those cells used only as components inside sealed battery packs in approved products, and
- attempted to exclude the e‑cigarette market from its customer base.
These facts fundamentally altered the panel’s understanding of Samsung’s Texas contacts and served as the factual predicate for its new jurisdictional analysis.
2. Applying the Ford “Arise out of or Relate to” Standard
Specific personal jurisdiction requires:
- Minimum contacts: the defendant must have purposefully availed itself of the privilege of conducting activities in the forum; and
- Relatedness: the plaintiff’s claims must arise out of or relate to those contacts;
- Fairness: exercising jurisdiction must be consistent with “fair play and substantial justice.”
In Ethridge, the panel does not dwell on the minimum-contacts or fairness prongs. The decisive issue is the second prong—whether Ethridge’s injury “arises out of or relates to” Samsung’s Texas contacts under Ford.
The prior (withdrawn) panel opinion had treated Samsung’s sales of 18650 cells to Texas corporate customers as sufficient contacts and had read Ford as allowing jurisdiction where:
- the defendant marketed the same general product in the forum, and
- the injury-causing product was of the same type, even if it entered the forum via a different path.
On rehearing, the panel takes a more granular view. It essentially adopts the reasoning of Judge Jones’s original dissent (quoted approvingly in the new opinion), which stressed that:
“In this case, there is no link between Samsung’s sales of goods to manufacturers and the plaintiff’s injuries, which arose from a direct‑to‑consumer purchase and involved distribution channels that Samsung did not participate in and never authorized . . . . Ford does not authorize States to exercise personal jurisdiction over out‑of‑state defendants because of the unilateral acts of plaintiffs or third parties.”
The key contrast with Ford is:
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In Ford, the same models of cars were marketed, sold, and serviced directly to consumers in the forum states; the plaintiff’s injuries arose from accidents involving those same models; the only disconnect was that the particular vehicles at issue had first been sold in other states. The overall relationship between Ford’s forum-directed conduct and the injuries was still strong.
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In Ethridge, Samsung’s forum-directed conduct (sales to vetted industrial customers for use in sealed battery packs) was specifically designed to exclude the loose-cell consumer and e‑cigarette market. Ethridge’s battery entered Texas through a distribution channel that Samsung neither authorized nor participated in.
Thus, even though 18650 batteries were present in Texas and Samsung did sell 18650 cells to Texas entities, the Fifth Circuit takes the view that Ethridge’s claim does not “relate to” those particular contacts in the constitutionally meaningful sense explained by Ford. The relationship is too attenuated and depends on the “unilateral acts” of third parties who diverted the product into a forbidden consumer use.
3. “Structuring Primary Conduct” and “Clear Notice”
The opinion returns several times to the idea that businesses may “structure [their] primary conduct to lessen or avoid exposure to a given State’s courts,” quoting Ford and World-Wide Volkswagen. This framing does two important things:
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It casts Samsung’s vetting and anti–e‑cigarette policies as exactly the kind of conduct that due process is meant to protect. By:
- refusing to sell to entities with e‑cigarette ties,
- requiring applications from would-be purchasers, and
- placing explicit warnings on its products and website,
Samsung signaled that it was not targeting the consumer e‑cigarette market and was attempting to confine its batteries to industrial, encased uses.
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It connects these facts directly to the fairness and foreseeability considerations at the heart of personal jurisdiction. Because Samsung structured its conduct this way, it lacked “clear notice” that it would be haled into Texas courts for injuries caused by loose cells acquired in violation of its business model.
In other words, Ethridge illustrates the flip side of Ford:
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Where a defendant affirmatively cultivates a forum market for a product (as Ford did), it can be sued there for injuries caused by that product even if the exact item traveled via a different sales path.
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But where a defendant affirmatively disclaims and polices a particular market or end use, and injuries arise only because others circumvent those controls, the “relatedness” between the defendant’s forum contacts and the claim may be too weak to support jurisdiction.
4. Narrowness and Fact-Dependency of the Holding
Notably, the panel carefully limits its holding. It explicitly disclaims ruling that Samsung’s particular measures (vetting, contractual limits, warnings) represent a necessary baseline for foreign manufacturers to avoid specific jurisdiction in similar cases:
“Nothing in this opinion should be construed as answering whether the precise measures Samsung took to sell its products only to the industrial market create a necessary baseline for specific personal jurisdiction cases like this one.”
Instead, the court says:
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It is “enough” that Samsung “affirmatively limited its contacts to approved manufacturers in Texas,” and
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Ethridge has not shown his injuries are related to those contacts.
This framing:
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leaves open the possibility that in other cases—perhaps with weaker or less consistently enforced distribution controls—courts might find jurisdiction even over foreign component manufacturers;
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implicitly recognizes the concern (raised in the broader jurisprudence) that overly generous crediting of “paper” restrictions could allow multinationals to insulate themselves from suit in the very places where their products predictably cause harm; and
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underscores that the result in Ethridge is heavily dependent on the particular, uncontroverted record facts about Samsung’s business model.
5. Procedural Posture and the Role of Counsel
The opinion contains a pointed, if understated, critique of Samsung’s earlier advocacy. Initially, Samsung:
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made only a fleeting, unsupported reference to limiting sales to “approved products” in a footnote, without citing the record or elaborating.
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did not meaningfully develop the factual narrative of vetting, purchase applications, or anti–e‑cigarette measures.
The panel observes that courts are not ordinarily obliged to “go hunting through the record” in this way—“judges are not like pigs, hunting for truffles buried in the record.” Still, guided by Myers, the panel took the unusual step of doing just that.
This dynamic yields two practical lessons:
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For defendants, critical jurisdictional facts must be clearly presented in the trial court and on appeal. Failure to do so can shape appellate doctrine and result in adverse published precedent, as nearly occurred here.
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For appellate courts, Kamen provides flexibility to refine legal theories and, in exceptional cases, to reexamine the record when subsequent precedent highlights the doctrinal importance of particular factual details.
6. Dismissal Without Prejudice and Prospects for Refiling
Finally, the panel emphasizes that the district court’s dismissal was “without prejudice,” which generally means:
- no binding determination on the merits, and
- no bar to refiling the same underlying claim, potentially with a better-developed jurisdictional showing.
Citing Fed. R. Civ. P. 41(b) and Semtek, the court notes that Ethridge can bring his suit again and “plead additional facts that could support jurisdiction.” In practice, this would likely mean:
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alleging more specific connections between the battery that injured him and Samsung’s Texas-directed distribution channels; or
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showing that Samsung’s purported anti–e‑cigarette measures were pretextual or inconsistently enforced, such that Samsung actually benefited from and knowingly tolerated a forum market for loose 18650 cells for vaping.
Absent such new facts, however, the Fifth Circuit’s analysis will likely control any renewed attempt to sue Samsung in Texas courts for injuries from loose 18650 cells.
C. Impact of the Opinion
1. Consolidation of a Nationwide Trend in 18650 Battery Litigation
By aligning itself with Myers and citing related cases involving LG Chem and similar products, the Fifth Circuit situates Ethridge within a broader national trend:
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Foreign lithium-ion battery manufacturers that:
- sell 18650 cells only to industrial customers, and
- take formal steps to avoid direct-to-consumer sales and the e‑cigarette market,
are increasingly shielded from being haled into U.S. courts based solely on injuries from loose cells obtained via unauthorized channels.
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Plaintiffs injured by such batteries in their home states may find that specific jurisdiction is unavailable unless they can tie:
- their particular battery, or
- their mode of use,
directly to the manufacturer’s forum-directed conduct.
This trend narrows plaintiffs’ choice of forum and may force such suits to be filed:
- in the manufacturer’s home country, or
- in a U.S. forum where the manufacturer’s consumer-facing activities (if any) are more robustly targeted.
2. Clarifying the Outer Limits of Ford’s “Relate To” Language
Ford rejected a rigid causation requirement, but it did not give states unlimited power to assert jurisdiction whenever a defendant’s product is present in the forum. Justice Alito’s concurrence warned about the “potentially boundless reach” of “relate to.”
Ethridge plays a constraining role:
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It makes clear that “relate to” does not mean:
- “the defendant sold the same product somewhere in the forum;” or
- “the defendant could foresee that its product might end up in the forum.”
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Instead, there must be a meaningful nexus between:
- the defendant’s forum-directed activities, and
- the specific way the plaintiff came to be injured.
In this sense, Ethridge reflects an attempt to honor Ford’s more generous reading of “relate to” while preserving a boundary consistent with World-Wide Volkswagen’s emphasis on fairness and predictable exposure.
3. Implications for Component Manufacturers and B2B Sellers
For companies that sell components (like batteries, chips, or other parts) to other manufacturers rather than directly to end-users, Ethridge is particularly significant:
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It suggests that robust distribution controls—such as vetting customers, contractual prohibitions on certain uses, and prominent warnings—can materially limit the jurisdictions in which those companies can be sued for downstream consumer injuries.
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It reinforces the idea that carefully honed B2B relationships, without direct marketing to consumers in the forum, may not suffice to subject a foreign manufacturer to specific jurisdiction for consumer injuries arising from unauthorized re-distribution.
At the same time, Ethridge leaves open important questions:
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How strictly must such controls be enforced to carry jurisdictional weight?
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What if the manufacturer knows, in practice, that its products routinely leak into the proscribed consumer market, but continues to profit from bulk sales while maintaining formal restrictions?
Future cases will likely probe these gray areas; Ethridge supplies an important data point but not a definitive answer.
4. Federal-State Alignment in Texas and Erie Considerations
Because Texas’s long-arm statute extends to the limits of due process, the Texas Supreme Court’s decisions (like LG Chem America v. Morgan) are crucial for federal courts applying Texas law in diversity cases. Before the substituted opinion, the Fifth Circuit’s earlier Ethridge decision risked putting federal courts on a different trajectory from Texas courts in evaluating jurisdiction over foreign battery manufacturers.
By adopting a view consistent with Morgan, the substituted opinion:
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promotes uniformity between Texas state courts and federal courts sitting in Texas on this recurring issue, and
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reduces incentives for forum-shopping based solely on the state–federal divide.
5. Guidance for Litigators
For plaintiffs:
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Jurisdictional discovery is critical in product cases involving foreign component manufacturers. Plaintiffs should:
- seek detailed information on the defendant’s distribution network,
- obtain evidence of actual or constructive knowledge that the product is reaching the forum in the allegedly unauthorized manner, and
- identify any forum-directed advertising or support for the specific end use at issue (e.g., vaping).
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Complaints and opposition to motions to dismiss must concretely link the forum-directed conduct (not just global conduct) to the plaintiff’s injury and show that the defendant’s structuring of its business did not, in reality, avoid that risk.
For defendants:
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Document and highlight distribution controls early and thoroughly:
- include declarations detailing vetting policies, contract terms, and enforcement practices;
- present product warnings and website notices in the record; and
- explain how these measures relate to specific forum contacts.
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Use Ethridge (and Myers) to argue that:
- sales to industrial buyers do not automatically support jurisdiction for consumer injuries caused by unauthorized resale or repurposing, and
- the “unilateral acts” of third parties and consumers cannot expand the reach of specific jurisdiction beyond what the manufacturer has purposefully created.
6. The En Banc Split and Continuing Debate
The denial of rehearing en banc, with five judges in favor and eleven against, underscores that the appropriate application of Ford in this context remains contested even within the Fifth Circuit. While the panel’s substituted opinion is now binding circuit precedent, the significant minority vote for en banc review signals:
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ongoing concern about how narrowly or broadly “relate to” should be read, and
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the possibility that future panels, on different records, may refine or distinguish Ethridge.
For now, however, the Fifth Circuit has chosen to harmonize itself with the emerging nationwide approach to exploding-battery cases and to limit the scope of specific jurisdiction in this corner of product liability.
IV. Key Legal Concepts Explained (Simplified)
1. Personal Jurisdiction
“Personal jurisdiction” is a court’s power to bind a particular defendant to its judgments. Even if a court has subject-matter jurisdiction (authority over the type of case), it cannot proceed unless it has personal jurisdiction over the defendant consistent with the Constitution’s Due Process Clause.
2. General vs. Specific Personal Jurisdiction
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General jurisdiction: Exists where the defendant is “at home” (for a corporation, usually its place of incorporation and principal place of business). The defendant can be sued there for any claim, even unrelated to the forum.
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Specific jurisdiction: Exists when the lawsuit is tied to the defendant’s contacts with the forum. The defendant is not “at home” there, but it has engaged in activities in the state, and the plaintiff’s claim arises out of or relates to those activities.
Ethridge concerns specific jurisdiction over a foreign corporation not “at home” in Texas.
3. “Minimum Contacts” and “Purposeful Availment”
To establish specific jurisdiction, the defendant must have:
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“Minimum contacts” with the forum—some deliberate connection with the state, such as selling products there, contracting with local entities, or directing advertising at its residents; and
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“Purposefully availed” itself of the privilege of conducting activities in the forum, meaning it has not been dragged in solely due to the unilateral actions of others.
In Ethridge, Samsung’s sales of 18650 cells to vetted industrial customers in Texas are the relevant minimum contacts. The question was whether Ethridge’s injury from a loose cell used in an e‑cigarette sufficiently “relates to” those contacts.
4. “Arise out of or Relate to”
This phrase comes from the Supreme Court’s specific-jurisdiction test. It has two parts:
- “Arise out of” often suggests a causal relationship: the forum contact directly gives rise to the claim.
- “Relate to” is broader; it does not require strict causation but still requires a meaningful link or “strong relationship” among the defendant, the forum, and the litigation.
Ford clarified that strict “but-for” causation is not required, but the relationship cannot be so broad as to make jurisdiction limitless. Ethridge uses this principle to say that:
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although Samsung sold 18650 cells in Texas, its Texas-directed activities were carefully confined to industrial uses, and
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Ethridge’s injury from a battery obtained via unauthorized consumer channels does not sufficiently “relate to” those contacts.
5. Jurisdictional Discovery
“Jurisdictional discovery” is limited pretrial discovery permitted solely to determine whether the court has personal jurisdiction. It might include:
- interrogatories or depositions about the defendant’s contacts with the forum;
- requests for documents about marketing, sales, or distribution practices.
In Myers, the Seventh Circuit remanded for jurisdictional discovery, which produced a detailed record about Samsung’s vetting processes and anti–e‑cigarette measures. In Ethridge, the Fifth Circuit found similar, but less clearly presented, facts already in the record.
6. Dismissal “Without Prejudice”
A dismissal “without prejudice” means the case is closed but:
- the plaintiff is not barred from bringing the same claim again; and
- there is no decision on the underlying merits of the claim (such as whether the product was defective).
In Ethridge, the district court’s dismissal for lack of personal jurisdiction was without prejudice, leaving open the possibility that Ethridge can refile if he can allege and establish new jurisdictional facts.
7. Panel Rehearing vs. Rehearing En Banc
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Panel rehearing: The same three-judge panel that decided the case reconsiders its own opinion. This is the “ordinary” means of reconsideration and was used here; the panel granted rehearing, withdrew its prior opinion, and substituted a new one.
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Rehearing en banc: The case is reheard by all active judges on the circuit (or a large subset, depending on the circuit). En banc rehearing is “not favored” and is reserved for especially important or conflicting issues. In Ethridge, rehearing en banc was requested but denied by an 11–5 vote.
V. Conclusion
Ethridge v. Samsung SDI marks a significant recalibration of the Fifth Circuit’s application of Ford to foreign component manufacturers. By withdrawing its prior, more expansive opinion and substituting this narrower one, the court:
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aligns itself with the Seventh Circuit’s Myers decision and with state-court decisions like Texas’s LG Chem America v. Morgan;
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emphasizes that due process allows defendants to “structure [their] primary conduct” to limit jurisdictional exposure, and credits Samsung’s vetting and anti–e‑cigarette policies as meaningful evidence of such structuring;
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clarifies that Ford’s “relate to” prong does not automatically permit jurisdiction whenever the same general product is marketed in the forum, but instead requires a strong, non-attenuated relationship between the defendant’s forum-focused activities and the plaintiff’s injury; and
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underscores the importance of a carefully developed jurisdictional record and the need for litigants to thoroughly present key facts bearing on the defendant’s forum contacts and business model.
For future cases, Ethridge stands for the proposition that foreign manufacturers who genuinely and consistently confine their forum contacts to industrial markets, and who explicitly reject and warn against the consumer end use that caused the injury, may fall outside the reach of specific personal jurisdiction, even when their products are present in the forum and cause foreseeable injuries there.
At the same time, the court’s express refusal to set a universal baseline, its acknowledgment of division among able jurists, and the close en banc vote all suggest that the outer limits of Ford’s “relate to” test remain a live and evolving question—one that may continue to generate substantial litigation and, potentially, future Supreme Court review.