In Re VOLKSWAGEN GROUP OF AMERICA, INC. ( 2022 )

Case: 22-108 Document: 22 Page: 1 Filed: 03/09/2022
United States Court of Appeals
for the Federal Circuit
______________________
IN RE: VOLKSWAGEN GROUP OF AMERICA, INC.,
Petitioner
______________________
2022-108
______________________
On Petition for Writ of Mandamus to the United States
District Court for the Western District of Texas in No. 6:20-
cv-01131-ADA, Judge Alan D. Albright.
-------------------------------------------------
IN RE: HYUNDAI MOTOR AMERICA,
Petitioner
______________________
2022-109
______________________
On Petition for Writ of Mandamus to the United States
District Court for the Western District of Texas in No. 6:20-
cv-01125-ADA, Judge Alan D. Albright.
______________________
ON PETITION
______________________
MARK A. HANNEMANN, Shearman & Sterling LLP, New
York, NY, for petitioner Volkswagen Group of America, Inc.
Also represented by AHMED ELDESSOUKI, ERIC SEBASTIAN
LUCAS, THOMAS R. MAKIN.
RYAN KEN YAGURA, O'Melveny & Myers LLP, Los
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2 IN RE: VOLKSWAGEN GROUP OF AMERICA, INC.
Angeles, CA, for petitioner Hyundai Motor America. Also
represented by CLARENCE ROWLAND, NICHOLAS
WHILT.
MICHAEL SONGER, White & Case LLP, Washington,
DC, for respondent StratosAudio, Inc. Also represented by
HENRY HUANG, HALLIE ELIZABETH KIERNAN, JONATHAN J.
LAMBERSON, Palo Alto, CA; DANIEL STERNBERG, Boston,
MA.
MARK S. DAVIES, Orrick, Herrington & Sutcliffe LLP,
Washington, DC, for amicus curiae Alliance for Automotive
Innovation. Also represented by ALEXANDRA BURSAK, New
York, NY.
Before DYK, REYNA, and CHEN, Circuit Judges.
PER CURIAM.
ORDER
Volkswagen Group of America, Inc. (Volkswagen or
VW) and Hyundai Motor America (Hyundai or HMA) (col-
lectively, the “Petitioners”) both seek a writ of mandamus
to vacate the United States District Court for the Western
District of Texas’s denial of their motions to dismiss or
transfer for improper venue. The district court held venue
was proper over each car distributor under 28 U.S.C.
§ 1400(b). The court based that conclusion on the presence
of independently owned and operated Volkswagen or
Hyundai car dealerships in the Western District of Texas,
determining those independent dealerships constituted “a
regular and established place of business” of the Petition-
ers. § 1400(b). Because there has been disagreement on
this issue in the district courts, we deem it appropriate to
now take up the issue. We conclude that the district court
clearly abused its discretion in failing to properly apply es-
tablished agency law and reaching a patently erroneous re-
sult. We therefore grant both petitions.
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IN RE: VOLKSWAGEN GROUP OF AMERICA, INC. 3
I.
In December 2020, StratosAudio, Inc. (Stratos) filed
these patent infringement complaints in the United States
District Court for the Western District of Texas, Waco Di-
vision, against Volkswagen and Hyundai, car distributors
that are incorporated in New Jersey and California, respec-
tively, and hence do not “reside[]” for venue purposes in the
Western District. 28 U.S.C. § 1400(b); TC Heartland LLC
v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514 (2017).
Volkswagen and Hyundai moved to dismiss or transfer the
cases under 28 U.S.C. § 1406(a) and Federal Rule of Civil
Procedure 12(b)(3).
The district court denied the motions, concluding that
venue in the Western District over Volkswagen and Hyun-
dai was proper. It reached that conclusion based on inde-
pendent car dealerships located in the Western District
that sell and service cars after purchasing them from the
Petitioners under franchise agreements imposing, inter
alia, transfer restrictions, staffing and reporting require-
ments, minimum inventory levels, employee training, and
equipment requirements on the dealerships. The district
court concluded those agreements gave the Petitioners suf-
ficient control over the dealership locations to establish a
regular and established place of business of the Petitioners
despite the fact that Texas law prohibits auto manufactur-
ers and distributors from directly or indirectly “operat[ing]
or control[ling] a franchised dealer or dealership.” Tex.
Occ. Code (TOC) § 2301.476(c)(2)(A).
In so doing, the district court found that the agree-
ments give Petitioners sufficient control over dealership
operations such that the dealerships are agents of the dis-
tributors. See 2022-108 Appx (VW Appx) 8–10; 2022-109
Appx (HMA Appx) 397–99. Based on similar facts, the dis-
trict court found that Petitioners had ratified the dealer-
ships as their own places of business. See VW Appx 4–8;
HMA Appx 391–97. Additionally, the district court deter-
mined that the dealerships are conducting Petitioners’
business because Volkswagen and Hyundai are “in the
business of manufacturing and distributing vehicles to
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4 IN RE: VOLKSWAGEN GROUP OF AMERICA, INC.
consumers” and “the only way that [Volkswagen and Hyun-
dai] can distribute [their] vehicles to consumers in this Dis-
trict is through [their] authorized dealerships in this
District.” VW Appx 10; HMA Appx 399. It similarly found
the dealerships conducted Petitioners’ business of provid-
ing “new purchase warranties and services to the consum-
ers through [their] dealerships,” VW Appx 10; HMA Appx
399, and in the case of Volkswagen, “establish[ing] the pro-
cedures for processing warranty claims and returning and
disposing of defective parts,” “requir[ing] its dealers to com-
ply with such procedures,” and “determin[ing] the rate or
price at which a . . . dealer will be reimbursed for services,”
VW Appx 10.
Volkswagen and Hyundai each petitioned this court for
a writ of mandamus. The two cases are now consolidated
in this court. Both present similar challenges to the dis-
trict court’s conclusions that the dealerships are Petition-
ers’ agents, that Petitioners ratified the dealerships as
their own places of business, and that Petitioners’ business
is conducted from the dealership locations. Volkswagen
asks us to vacate the denial of its motion and instruct the
district court to dismiss or transfer the action to the United
States District Court for the Eastern District of Michigan.
Hyundai asks the court to direct dismissal of its case.
II.
A.
Pursuant to the All Writs Act, this court “may issue all
writs necessary or appropriate in aid of [our] respective ju-
risdiction[] and agreeable to the usages and principles of
law.” 28 U.S.C. § 1651(a). Before a court may issue a writ,
three conditions must be satisfied: (1) the petitioner must
have “no other adequate means to attain the relief he de-
sires”; (2) the petitioner must show that the right to the
writ is “clear and indisputable”; and (3) the court “in the
exercise of its discretion, must be satisfied that the writ is
appropriate under the circumstances.” Cheney v. U.S. Dist.
Ct. for D.C., 542 U.S. 367, 380–81 (2004) (citation and in-
ternal quotation marks omitted).
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IN RE: VOLKSWAGEN GROUP OF AMERICA, INC. 5
Ordinarily, mandamus relief is not available for rul-
ings on motions under 28 U.S.C. § 1406(a). See In re HTC
Corp., 889 F.3d 1349, 1352–53 (Fed. Cir. 2018) (“Unlike a
defendant challenging the denial of a § 1404(a) transfer
motion, a defendant aggrieved by the denial of an im-
proper-venue motion has an adequate remedy on appeal
from a final judgment.”). However, “[m]andamus may be
used in narrow circumstances where doing so is important
to ‘proper judicial administration,’” In re Micron Tech.,
Inc., 875 F.3d 1091, 1095 (Fed. Cir. 2017) (quoting La Buy
v. Howes Leather Co., 352 U.S. 249, 259–60 (1957)), such
as when there are “a significant number of district court
decisions that adopt conflicting views on the basic legal is-
sues presented in th[e] case” at hand, In re Google LLC, 949
F.3d 1338, 1342 (Fed. Cir. 2020) (Google II). Here, given
the disagreement among district courts on the recurring is-
sue of whether independent car dealerships are sufficient
to establish venue over car distributors, compare Omega
Pats., LLC v. Bayerische Motoren Weke AG, 508 F. Supp.
3d 1336 (N.D. Ga. 2020) (finding venue improper); W. View
Rsch., LLC v. BMW of N. Am., LLC, Case No. 16-cv-2590,
2018 WL 4367378 (S.D. Cal. Feb. 5, 2018) (same), with
Arigna Tech. Ltd. v. Volkswagen AG, Case No. 2:21-cv-
00054-JRG, Dkt. Nos. 415 & 424 (E.D. Tex. Jan. 18 & 20,
2022) (report and recommendations finding venue
proper) 1; Blitzsafe Tex., LLC v. Bayerische Motoren Werke
AG, Case No. 2:17-cv-00418-JRG, 2018 WL 4849345 (E.D.
Tex. Sept. 6, 2018), vacated, 2019 WL 3494359 (E.D. Tex.
Aug. 1, 2019) (same)), we determine that these cases
1 In a related case involving similar venue consider-
ations, the same district court has stayed the proceeding to
“gain the benefit of [the] guidance” provided herein.
Arigna Tech. Ltd. v. Bayerische Motoren Werke AG, Case
No. 2:21-cv-00172, Dkt. No. 179 at 2 (E.D. Tex. Feb. 1,
2022) [hereinafter Arigna ’172].
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6 IN RE: VOLKSWAGEN GROUP OF AMERICA, INC.
involve exceptional circumstances warranting immediate
review. 2
B.
The burden to establish venue in patent infringement
cases rests with the plaintiff. See Westech Aerosol Corp. v.
3M Co., 927 F.3d 1378, 1382 (Fed. Cir. 2019). Whether
venue is appropriate in a patent infringement action is
unique to patent law and therefore Federal Circuit law ap-
plies. See Celgene Corp. v. Mylan Pharms. Inc., 17 F.4th
1111, 1119 n.4 (Fed. Cir. 2021); In re Cray Inc., 871 F.3d
1355, 1360 (Fed. Cir. 2017).
Section 1400(b) provides, in relevant part, that “[a]ny
civil action for patent infringement may be brought in the
judicial district where . . . the defendant has committed
acts of infringement and has a regular and established
place of business.” The regular and established place of
business inquiry has three general requirements:
2 The at least four disparate inter-district determi-
nations on the specific issue presented here, in combination
with a district court staying another case “until the Federal
Circuit issues further guidance on the[se] venue issues,”
Arigna ’172, distinguishes the instant case from In re
Google LLC, No. 2018-152, 2018 WL 5536478, at *3 (Fed.
Cir. Oct. 29, 2018) (Google I). Google I declined to entertain
a venue challenge where there were only a “paucity of dis-
trict court cases that ha[d] so far addressed the issue,” such
that there was not, at the time, “almost-even disagreement
among a large number of district courts” warranting the
extraordinary remedy of mandamus. Id. The circum-
stances present here are more akin to Google II, where the
court exercised its discretion to provide guidance on the
same issue present in Google I, based on the intervening
two years producing “a significant number of district court
decisions that adopt conflicting views” that “crystallized
and brought clarity to the issues.” Google II, 949 F.3d at
1342–43. The inter- and intra-district uncertainty on this
issue thus warrants mandamus review in this case.
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IN RE: VOLKSWAGEN GROUP OF AMERICA, INC. 7
“(1) there must be a physical place in the district; (2) it
must be a regular and established place of business; and
(3) it must be the place of the defendant.” Cray, 871 F.3d
at 1360. The second Cray factor requires “the regular,
physical presence of an employee or other agent of the de-
fendant conducting the defendant’s business at the alleged
‘place of business.’” Google II, 949 F.3d at 1345. We con-
sider whether these requirements are met with the under-
standing that the Supreme Court has repeatedly cautioned
against a broad reading of the patent venue statute.
See Schnell v. Peter Eckrich & Sons, Inc., 365 U.S. 260, 264
(1961); Stonite Prods. Co. v. Melvin Lloyd Co., 315 U.S. 561,
566 (1942).
Petitioners do not challenge that Stratos has ade-
quately alleged infringement within the Western District
for venue purposes. And Petitioners do not dispute that
the dealership locations are physical places within the
Western District. Nor do they dispute that those physical
places are regular and established places of business for
the dealerships. The dispute thus boils down to three is-
sues: (1) whether the dealerships are the agents of Peti-
tioners; (2) whether the dealerships conduct Petitioners’
business; and (3) whether Petitioners have ratified the
dealerships as Petitioners’ places of business. “If any [of
these] statutory requirement[s] [are] not satisfied, venue is
improper under § 1400(b).” Cray, 871 F.3d at 1360.
C.
We hold that the dealerships located in the Western
District do not constitute regular and established places of
business of Volkswagen and Hyundai under § 1400(b) be-
cause Stratos has failed to carry its burden to show that
the dealerships are agents of Volkswagen or Hyundai un-
der a proper application of established agency law. 3
3 Because Stratos has failed to show that an agent or
employee of the Petitioners conducts business at the deal-
erships we need not address whether the dealerships
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8 IN RE: VOLKSWAGEN GROUP OF AMERICA, INC.
Per Google II, “a ‘regular and established place of busi-
ness’ requires the regular, physical presence of an em-
ployee or other agent of the defendant conducting the
defendant’s business at the alleged ‘place of business.’” 949
F.3d at 1345. Stratos does not argue that Petitioners’ em-
ployees work out of the individual dealerships or that the
individual dealership employees are agents of Petitioners.
See Stratos VW Br. 9; Stratos HMA Br. 9. Rather, Stratos
argues, and must therefore prove, that the dealership enti-
ties themselves are Petitioners’ agents. See Pac. Gas &
Elec. Co. v. United States, 838 F.3d 1341, 1359 (Fed. Cir.
2016) (PG&E) (“The party asserting that a relationship of
agency exists generally has the burden in litigation of es-
tablishing its existence.” (quoting Restatement (Third) of
Agency (Restatement) § 1.02(d))).
As we noted in Google II:
An agency relationship is a fiduciary relationship
that arises when one person (a principal) manifests
assent to another person (an agent) that the agent
shall act on the principal’s behalf and subject to the
principal’s control, and the agent manifests assent
or otherwise consents to act. Restatement (Third)
of Agency § 1.01. The essential elements of agency
are (1) the principal’s right to direct or control the
agent’s actions, (2) the manifestation of consent by
the principal to the agent that the agent shall act
on his behalf, and (3) the consent by the agent to
act. Meyer v. Holley, 537 U.S. 280, 286, 123 S. Ct.
824, 154 L.Ed.2d 753 (2003).
949 F.3d at 1345 (internal quotation marks and alteration
brackets omitted). Google II emphasized that the control
required in an agency relationship is one of “interim
conduct Petitioners’ business by selling cars to consumers
or providing warranty services or whether the dealership
locations can be considered the places of business of Peti-
tioners. Google II, 949 F.3d at 1346; Cray, 871 F.3d at
1360.
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IN RE: VOLKSWAGEN GROUP OF AMERICA, INC. 9
control.” Id. at 1345–46 (“The power to give interim in-
structions distinguishes principals in agency relationships
from those who contract to receive services by persons who
are not agents.” (citing Restatement § 1.01(f)(1))). Google
II further recognized that agency relationships are narrow
in scope. Id. at 1346. That is, just because a party may be
a principal’s agent for a particular purpose does not mean
that the party is the principal’s agent for another. See Re-
statement § 1.01(c) (“Only interactions are within the scope
of an agency relationship affect the principal’s legal posi-
tion.”).
Google II’s analysis is instructive for each of these
points. In Google II, the plaintiff alleged that Internet Ser-
vice Providers (ISPs) who hosted Google’s servers were
Google’s agents because the ISPs were contractually re-
quired to install and maintain the servers in addition to
providing them with network access. See 949 F.3d at 1345–
46.
As to providing network access, Google II determined
that the ISPs were merely “provid[ing] Google with a ser-
vice, and Google has no right of interim control over the
ISP’s provision of network access beyond requiring that the
ISP maintain network access to the . . . servers and allow
the . . . servers to use certain ports for inbound and out-
bound network traffic.” Id. at 1345. The lack of interim
control over how the ISPs performed this contractual duty
meant “[i]n this respect, the ISPs are not the agents of
Google.” Id. (citation omitted).
In contrast, the installation and maintenance provi-
sions of the contract between Google and the ISPs required
the ISPs to perform certain discrete tasks “based on infor-
mation and instructions provided from Google,” or “only
with specific and direct step-by-step instructions by
Google.” Id. at 1346 (citations omitted). Although the ad-
ditional, specific control by Google may have been “sugges-
tive of an agency relationship” with respect to those tasks,
id., the court did not need to decide that question because
the one-off installations could not be considered “regular
and established,” see id. And the “maintenance activities
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10 IN RE: VOLKSWAGEN GROUP OF AMERICA, INC.
cannot, standing alone, be considered the conduct of
Google’s business.” Id. The ISPs, therefore, were not
Google’s agents for venue purposes for these activities ei-
ther.
Google II thus distinguishes between contractual pro-
visions potentially evidencing interim control (step-by-step
directions for maintenance and installation) and those that
merely provide constraints on how a service is provided
(e.g., network access). Stated differently, Google II recog-
nizes that an agency relationship requires the “principal
ha[ve] the right throughout the duration of the relationship
to control the agent’s acts.” PG&E, 838 F.3d at 1360 (quot-
ing Restatement § 1.01(c)). And the “fact that such an
agreement imposes constraints on the service provider
does not mean that the service recipient has an interim
right to give instructions to the provider. Thus, setting
standards in an agreement for acceptable service quality
does not of itself create a right of control.” Restatement
§ 1.01(f)(1).
Questions of control often arise in the context of fran-
chise agreements, and courts long have recognized that
“[s]ome degree of control by the franchisor over the franchi-
see would appear to be inherent in the franchise relation-
ship,” but “the mere existence of a franchise relationship
does not necessarily trigger a master-servant relationship.”
See Drexel v. Union Prescription Ctrs., Inc., 582 F.2d 781,
786 (3d Cir. 1978). What matters is “the nature and extent
of such control as defined in the franchise agreement or by
the actual practice of the parties.” Id. (collecting cases);
2 Franch. & Distr. Law & Prac. § 9:42 (“Where a contract
establishes an independent contractor relationship rather
than an agency relationship and does not grant the princi-
pal control over the details of the contractor’s work, then
evidence must be produced to show that despite the con-
tract terms, a true relationship between the parties gave
the principal a right of control.”).
Google II also stands for the proposition that the con-
trol analysis must account for the scope of the alleged
agency. In other words, control over one aspect of a party’s
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IN RE: VOLKSWAGEN GROUP OF AMERICA, INC. 11
or agent’s activities does not affect the analysis of whether
that party is an agent for a different activity. See Restate-
ment § 1.01(c) (“Only interactions that are within the scope
of an agency relationship affect the principal’s legal posi-
tion.”). For example, when assessing agency based on a
contractual relationship, “an agent’s duties of performance
to the principal are subject to the terms of any contract be-
tween them.” Nat’l Plan Adm’rs v. Nat’l Health Ins. Co.,
235 S.W.3d 695, 702 (Tex. 2007) (quoting Restatement
§ 8.07(a)). An agreement to act on behalf of another “only
for specific purposes” does not give rise to a general duty or
agency for other purposes. See id. at 703. In the franchise
context, for example, “the most significant factor to con-
sider is the degree of control that the franchisor maintains
over the daily operations of the franchisee or more specifi-
cally, the ‘manner of performing the very work in the
course of which the accident occurred.’” Kerl v. Rasmussen,
267 Wis. 2d 827, 839 (Wis. Ct. App. 2003) (quoting Hart v.
Marriot Int’l, Inc., 304 A.D.2d 1057, 758 N.Y.S.2d 435, 438
(2003)).
Here, Stratos argues that the dealerships are Hyun-
dai’s and Volkswagen’s agents for conducting Petitioners’
business of (i) selling cars to consumers and (ii) providing
warranty services to consumers. Assuming that is a proper
characterization of the Petitioners’ business in the Western
District, 4 Stratos still must show that the Petitioners have
4 Petitioners argue that their business is to sell cars
to dealerships, not consumers. See VW Pet. 26 (“VWGoA is
in the business of selling vehicles to dealers, not to consum-
ers”); HMA Pet. 25 (“HMA is in the business of selling
Hyundai-branded vehicles to independent dealerships
across the country.”). And while Petitioners appear to con-
cede that part of their business is reimbursing dealers for
providing warranty services to consumers, they argue they
are not in the business of providing warranty services at
the dealership locations. See VW Pet. 20–21 (“Reimburs-
ing Texas dealers for warranty service charges, although it
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12 IN RE: VOLKSWAGEN GROUP OF AMERICA, INC.
the requisite control over the dealerships with respect to
those activities, including the right to provide “interim in-
structions.” Google II, 949 F.3d at 1345–46.
Stratos argues that similar contractual provisions in
both the Volkswagen and Hyundai dealership agreements
give Petitioners the control required for agency. These con-
tractual provisions generally require the dealerships to:
(1) employ certain types of employees, such as a general
manager, and service and sales staff; (2) maintain a mini-
mum amount of inventory; (3) perform warranty work on
consumer vehicles; (4) use specified tools when performing
warranty and maintenance work; (5) use distributor-ap-
proved computer hardware and software; (6) comply with
the distributors’ standards regarding dealership appear-
ance and use of signs and brand logos; (7) comply with the
distributors’ working capital requirements; and (8) attend
mandatory training sessions (Hyundai) or require staff to
have certain training certifications (Volkswagen). 5 Stratos
further argues that the Petitioners’ conditional ability to
terminate the agreements demonstrates the requisite con-
trol for agency.
Petitioners contend that they do not have the right to
control the day-to-day operations of the dealerships, see
HMA Pet. 1, 20, and that the provisions cited above are
basic “quality controls” insufficient to find agency, see
VW Pet. 22. They liken whatever requirements and stand-
ards may exist in this case to Andra Group, LP v. Victoria’s
may be considered doing business in the state of Texas, . .
. is not doing business at the dealerships for purposes of
venue.”); HMA Pet. 26 (“There is no evidence suggesting
that HMA conducts any warranty or service business at a
physical place of business in this district. . . .”).
5 Stratos also cites Volkswagen-specific contract pro-
visions requiring dealerships to use Volkswagen-approved
stationery and business forms, and to keep brochures on
hand and display them as dictated by Volkswagen.
See, e.g., VW Appx 66. These Volkswagen-specific provi-
sions do not alter our analysis in this case.
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IN RE: VOLKSWAGEN GROUP OF AMERICA, INC. 13
Secret Stores, L.L.C., 6 F.4th 1283, 1289 (Fed. Cir. 2021),
where we found allegations of control by several parent
companies over the operations of a retail subsidiary insuf-
ficient to create an agency relationship. Petitioners further
point to contractual provisions in each franchise agreement
with the dealers disclaiming an agency relationship,
VW Appx 88; HMA Appx 168, and that state the dealer-
ships have complete authority over their own operations,
VW Appx 88; HMA Appx 133. Petitioners also point to TEX.
OCC. CODE ANN. § 2301.476(c)(2), which prohibits distribu-
tors from “operat[ing] or control[ling]” car dealerships in
Texas. Furthermore, TEX. OCC. CODE ANN. § 2301.003(b)
states that any contractual provision that violates chapter
2301 is “unenforceable.” Thus, according to Petitioners,
any interpretation of the agreements to give Petitioners
control over the dealerships would make those agreements
void and unenforceable as a matter of law.
We need not reach whether the Volkswagen and Hyun-
dai dealership agreements violate Texas law, however, as
we determine that the cited contractual provisions fail to
give Petitioners “interim control” over either the dealer-
ships’ car sales or warranty work. Stratos has not cited
any evidence that Volkswagen or Hyundai maintain influ-
ence over the sales process once they have sold a car to a
dealership. Once the cars leave Petitioners’ possession, Pe-
titioners “retain[] no authority over the manner in—or
price for—which the [car] will be [sold].” See Johnson v.
Priceline.com, Inc., 711 F.3d 271, 278 (2d Cir. 2013); see
also id. at 279 (finding no agency relationship between con-
sumers and website operator because the consumer “re-
tains no right to instruct Priceline as to how it procures
hotel reservations beyond the initial specifications”). At
best, Stratos cites various constraints placed on the dealer-
ships that are arguably related to sales (minimum inven-
tory, sales staff, displaying the parent company’s logo,
providing sales reports, etc.), but none of these provisions
evidence any control over the sales process itself. These
provisions are akin to the constraints placed on the
Google II ISPs (use of certain ports and maintaining net-
work access) that failed to make the ISPs agents of Google.
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14 IN RE: VOLKSWAGEN GROUP OF AMERICA, INC.
949 F.3d at 1345–46; see also Johnson, 711 F.3d at 279 (“Af-
ter the customer . . . delimits the choices that the service
provider has the right to make . . . he cedes all other control
over the reservation process to Priceline.”) (internal cita-
tion, quotation marks, and alteration brackets omitted);
Kerl, 267 Wis. 2d at 839 (“[T]he most significant factor to
consider is the degree of control that the franchisor main-
tains over the . . . manner of performing the very work in
the course of which the accident occurred.”).
And, unlike Google II’s maintenance and installation
provisions, there are no “step-by-step” instructions from
Petitioners that dealerships must follow when selling a car
to a consumer. See 949 F.3d at 1346; Andra, 6 F.4th at
1289 (taking actions which benefit a separate company
does not create an agency relationship unless the alleged
principal “controls this process”). Indeed, Stratos has cited
no evidence that undermines the franchise agreements’
provisions giving the dealerships full control over their
day-to-day operations, such as sales. VW Appx 88;
HMA Appx 133. Thus, the terms and conditions set forth
in the franchise agreements fail to give rise to an agency
relationship between the Petitioners and dealerships when
it comes to selling cars to consumers. See Arguello v.
Conoco, Inc., 207 F.3d 803, 808 (5th Cir. 2000) (finding lack
of day-to-day control by franchisor of franchisee’s opera-
tions and hiring decisions precluded agency finding for al-
leged customer-service-based harms); Schear v. Motel
Mgmt. Corp. of Am., 61 Md. App. 670, 688 (Md. Ct. Spec.
App. 1985) (holding that a franchisor’s lack of control over
the “day-to-day operation” of the franchisee’s hotel pre-
cluded agency finding with respect to harm caused through
allegedly negligent security).
Our holding is further bolstered by the relevant—
though not dispositive—consideration that the parties to
the franchise agreements disclaim an agency relationship.
VW Appx 88; HMA Appx 168; see also PG&E, 838 F.3d at
1359 (“[I]t is well established that parties’ statements in a
contract are not dispositive as to the existence of an agency
relationship.”); Restatement § 1.02(b) (“Although such
statements are relevant to determining whether the
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IN RE: VOLKSWAGEN GROUP OF AMERICA, INC. 15
parties consent to a relationship of agency, their presence
in an agreement is not determinative and does not preclude
the relevance of other indicia of consent.”).
This result is further in accord with a near uniform
body of case law finding that similar contractual provisions
or allegations of control fail to show that independent deal-
erships are agents of vehicle manufacturers or distributors.
See Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285,
290 (5th Cir. 2004) (finding no agency relationship between
General Motors and independent local dealership where
General Motors did “not control [the dealership’s] daily op-
erations”); Leon v. Caterpillar Indus., Inc., 69 F.3d 1326,
1334, 1335–36 (7th Cir. 1995) (finding no agency relation-
ship between manufacturer and dealer due to an “express[]
disavow[al of] an agency relationship” in a sales agreement
and where dealer “manage[d] its operations completely in-
dependent of supplier” and “ma[de] all of [its] day to day
decisions”); Arnson v. Gen. Motors Corp., 377 F. Supp. 209,
212 (N.D. Ohio 1974) (“[T]he weight of authority, including
decisions reviewing similar dealer agreements and dealer-
ship operations, support the view that a franchised auto-
mobile dealer, with regard to the sale of new vehicles, is an
independent merchant and not an agent of the manufac-
turer.” (collecting cases)); Poynor v. BMW of N. Am., LLC,
441 S.W.3d 315, 322 (Tex. App.–Dallas 2013, no pet.) (find-
ing no agency between a distributor and dealership em-
ployee concerning accident that occurred during a test
drive, as plaintiff failed to present evidence that distributor
“had the right to control [salesperson] or [dealership] dur-
ing the act resulting in appellants’ injuries”).
The same is true as to the dealerships’ performance of
warranty services. The contractual provisions require the
dealerships to perform warranty services, which are reim-
bursed by Petitioners, 6 or require the dealerships to keep
6 Stratos argues the HMA agreement additionally
requires “dealers [to] explain and provide a copy of warran-
ties to customers at the time of sale.” Stratos HMA Br. 11
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16 IN RE: VOLKSWAGEN GROUP OF AMERICA, INC.
certain parts on hand and use certain tools when perform-
ing repairs. But Stratos fails to cite any language giving
the Petitioners control over how the dealerships perform
warranty services once those parameters are set. Petition-
ers’ lack of “interim control” over how the dealerships per-
form warranty work again precludes a finding that the
dealerships are Petitioners’ agents for warranty services.
Google II, 949 F.3d at 1345–46; Leon, 69 F.3d at 1330, 1336(reimbursement for warranty work insufficient to create
agency relationship); Theos & Sons, Inc. v. Mack Trucks,
Inc., 431 Mass. 736, 744 (2000) (requirements that repairs
are to “be done in a prompt and efficient manner, in accord-
ance with Mack’s policies and standards, and . . . will uti-
lize only parts manufactured or recommended by Mack[,]
. . . are merely reflective of the ordinary desire of manufac-
turers to set sufficient minimum performance and quality
standards to protect the good name of their trademark that
they are allowing another to display” and “do not establish,
without more, the kind of close control . . . that would indi-
cate that Vigor was serving as Mack’s agent for the work”
(cleaned up)).
In contrast, the cases cited by the district court and
Stratos are distinguishable procedurally and factually. In
Morano v. BMW of N. Am., LLC, 928 F. Supp. 2d 826(D.N.J. 2013), the court denied BMWNA’s motion to dis-
miss because it found the plaintiff’s allegations of agency
(citing HMA Appx 147). But the provision Stratos cites
does not require dealerships to provide and explain HMA
warranties. Rather, “DEALER agrees that, if it sells or in-
stalls any part or accessory that is not a Hyundai Genuine
Part or Accessory, . . . Dealer will clearly explain to the
Customer the extent of any [third-party] warranty covering
the equipment, part or accessory involved and will deliver
a copy of such warranty to the Customer at the time of
sale.” HMA Appx 147 (emphasis added). As Stratos does
not allege that HMA’s business includes providing consum-
ers third-party parts or warranty service, this provision
does not bear on the instant analysis.
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IN RE: VOLKSWAGEN GROUP OF AMERICA, INC. 17
plausible. Id. at 838 (“If BMWNA is the entity that made
the decision whether to cover certain losses—conveying
that decision through the local dealer—it stands to reason
that the dealer acted as BMWNA’s agent, or at least that
the two acted together.”). Accordingly, we do not read Mo-
rano as finding “that the dealer acted as BMWNA’s agent,”
as the district court did. See VW Appx 9–10; HMA Appx
398. Further, the specific allegation in Morano—that
BMWNA itself made the decision to decline Mr. Morano’s
requested warranty service and instructed the dealership
accordingly—is an allegation that BMWNA exerted in-
terim control over the warranty process in that instance.
Stevens v. Ford Motor Co., Case No. 2:18-CV-456, 2020
WL 12573279 (S.D. Tex. Nov. 2, 2020), and Kent v. Celozzi-
Ettleson Chevrolet, Inc., Case No. 99 C 2868, 1999 WL
1021044 (N.D. Ill. Nov. 3, 1999), have both also been in-
voked for the unremarkable proposition that independent
dealerships may, in some circumstances, be considered
agents of distributors or manufacturers. See VW Appx 9–
10; HMA Appx 397–98; Stratos HMA Br. 29. We can
hardly disagree that when a distributor or manufacturer
exercises the requisite level of control over a dealership for
certain activities—control not present here for sales or
warranty service—that an agency relationship can exist.
That is why the district court in Morano allowed the plain-
tiffs to take discovery as to whether BMWNA controlled the
specific warranty rejections at issue. And why Stevens,
which similarly involved allegations of a defective part, de-
clined to dismiss a case where Ford was alleged to have
“multiple controls over advertising and warranty and re-
pair work.” 2020 WL 12573279, at *6. Unsurprisingly,
Kent also declined to dismiss a claim against General Mo-
tors because, “[t]hough it may be unlikely that Kent will be
able to establish that General Motors made Celozzi-Ettle-
son its agent with respect to the sale of extended warran-
ties, . . . it is not out of the question that she will be able to
do so.” 1999 WL 1021044, at *4.
In light of the above, we conclude that Stratos has
failed to carry its burden to show that the dealerships with
the Western District are agents of either Volkswagen or
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18 IN RE: VOLKSWAGEN GROUP OF AMERICA, INC.
Hyundai under a proper application of established agency
law.
* * *
For these reasons, we conclude the district court’s
venue conclusions were a clear abuse of discretion for erro-
neously interpreting governing law and reaching a pa-
tently erroneous result. The district court declined to
dismiss or transfer based entirely on its determination that
the independent car dealerships in the Western District of
Texas constituted regular and established places of busi-
ness of Volkswagen and Hyundai. Because we reverse the
only basis for the district court’s decisions to keep these
cases in the Western District of Texas, we remand for the
district court to now address whether to dismiss or transfer
these two cases.
Accordingly,
IT IS ORDERED THAT:
The petitions for a writ of mandamus are granted, the
district court orders denying the motions to dismiss or
transfer are vacated, and the case is remanded for further
proceedings consistent with this order.
FOR THE COURT
March 9, 2022 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court