author: STREIT, Justice. CARTER, Justice CADY, Justice

text:
    Joe COMES and Comes Vending, Inc., Appellants, v. MICROSOFT CORPORATION, a Washington Corporation, Appellee.
    No. 00-1268.
    Supreme Court of Iowa.
    June 12, 2002.

      Roxanne Barton Conlin of Roxanne Con-lin & Associates, P.C., Des Moines, for appellants.
    Donald G. Ribble of Lynch, Dallas, Smith & Harman, P.C., Cedar Rapids, and Joseph E. Neuhaus, Alphonzo A. Grant, Jr., and David B. Tulchin of Sullivan & Cromwell, New York, New York, for ap-pellee.
   STREIT, Justice.

A group of computer consumers filed suit alleging Microsoft Corporation maintained or used a monopoly in conjunction with its Windows 98 operating system for the purpose of excluding competition or controlling, fixing, or maintaining prices in violation of the Iowa Competition Law. See Iowa Code §§ 553.4, 553.5 (1997). On appeal, the consumers urge us to find our state antitrust law is not controlled by federal law, and thereby allow them to sue in Iowa as indirect purchasers. We conclude the Iowa Competition Law is not controlled by federal law and indirect purchasers may maintain an antitrust action in state court. Therefore, the motion to dismiss should have been denied. We reverse and remand.

I. Background and Facts

Joe Comes is a resident of Polk County, Iowa. Comes Vending, Inc. is a corporation organized and existing under the laws of the State of Iowa. Comes and Comes Vending purchased a Gateway Solo Computer directly from Gateway. The computers came with Windows 98 operating system pre-installed. As a precondition to using Windows. 98, they became end-user licensees of Microsoft as to the operation and use of Windows 98. Comes and Comes Vending registered its ownership of the licenses with Microsoft via electronic mail.

Microsoft is a for-profit corporation organized and existing under the laws of the State of Washington. Microsoft’s focus is primarily on developing and licensing computer software. Microsoft is the world’s leading supplier of operating systems for personal computers.

Comes and Comes Vending represent the group of all end-user licensees of Windows 98 living in Iowa as to whom Microsoft has an electronic mail address that is computer-accessible by Microsoft (all the foregoing the “Class”). Each member of the Class owns or leases an Intel-based personal computer. The Class filed suit alleging Microsoft maintained or used a monopoly in conjunction with its Windows 98 operating system for the purpose of excluding competition or controlling, fixing, or maintaining prices in violation of the Iowa Competition Law. See Iowa Code §§ 553.4, 558.5. The Class further stated,

[w]ell aware of its unlawfully and willfully maintained monopoly power and in unlawful exercise of that monopoly power, Microsoft has knowingly, flagrantly, and with impunity licensed its Windows 98 operating system for Intel-based personal computers without regard to competition, at a monopoly price in excess of what Microsoft would have been able to charge in a competitive market.

The Class asserted that by virtue of its status as end-user licensees, it incurred a monopoly price charged by Microsoft for use of Windows 98. Microsoft filed a motion to dismiss claiming chapter 553 must be interpreted consistently with federal law and under federal law the Class was deemed to be comprised of indirect purchasers barred from recovering damages for alleged antitrust violation. See Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977).

The Iowa district court, persuaded by the policies of Illinois Brick, granted the motion to dismiss. The court concluded the indirect purchaser rule set forth in Illinois Brick applied to the Iowa Competition Law. The court noted the similarity between the federal and state statutes, prior interpretations by this court consistent with federal antitrust law, and the statutory directive to “harmonize” state and federal antitrust laws. The court further found this case did not fall within any of the limited exceptions to Illinois Brick. The Class appeals.

On appeal, the Class argues this court should hold Illinois Brick does not apply and that if it does apply they are direct, not indirect, users under Microsoft’s licensing agreement. In the alternative, the Class argues they fall within the exceptions to Illinois Brick allowing suits by indirect purchasers.

II. Scope of Review

We review the grant of a motion to dismiss for correction of errors at law. State v. Hoegh, 632 N.W.2d 885, 887 (Iowa 2001). We will affirm the dismissal of a claim only if the petition shows no right of recovery under any state of the facts. Barnes v. State, 611 N.W.2d 290, 292 (Iowa 2000). In reviewing the trial court’s grant of Microsoft’s motion to dismiss, we consider the allegations in the petition in the light most favorable to the Class. See Sanford v. Manternach, 601 N.W.2d 360, 363 (Iowa 1999).

III. The Merits

The only issue on appeal is whether the United States Supreme Court case, Illinois Brick, should be followed in interpreting the Iowa Competition Law. The Class argues this case should not be applied because the Iowa Competition Law does not limit the class of plaintiffs who may bring a state antitrust suit. Microsoft argues Iowa must harmonize the Iowa Competition Law with federal law articulated in Illinois Brick such that only direct purchasers may recover damages for antitrust violations. We now turn to the holding of Illinois Brick and its applicability to our state competition law.

A. The Origins of State and Federal Antitrust Laws

In 1976, the Iowa legislature overhauled our state competition law using federal law as a model. Since then, the Iowa Competition Law has provided

[a] person shall not attempt to establish or establish, maintain, or use a monopoly of trade or commerce in a relevant market for the purpose of excluding competition or of controlling, fixing or maintaining prices.

Iowa Code § 553.5. The Iowa Competition Law also authorizes a very broad category of persons to maintain a suit in our state courts for damages resulting from anti-competitive conduct.

[A] person who is injured ... by conduct prohibited under this chapter may bring suit to: ... [rjecover actual damages resulting from conduct prohibited under this chapter.

Id. § 553.12(2).

A year after the Iowa legislature enacted our current state antitrust law, the United States Supreme Court was called upon to determine who has standing to sue in federal court for damages resulting from monopolistic conduct. Illinois Brick, 431 U.S. at 720, 97 S.Ct. at 2061, 52 L.Ed.2d at 707. The Court’s decision in Illinois Brick was built upon the Court’s prior holding in Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968). In Hanover Shoe, plaintiff shoe manufacturer alleged the defendant manufacturer and distributor of shoe-making machinery unlawfully inflated the price of the machinery. The defendant argued the plaintiff, despite being a direct purchaser, did not suffer a legally cognizable injury because the plaintiff had passed on the overcharge to indirect purchasers. The Court held the defendant could not use the pass on theory as a defense. Hanover Shoe, 392 U.S. at 494, 88 S.Ct. at 2232, 20 L.Ed.2d at 1242. In so ruling the Court explained,

[a]s long as the seller continues to charge the illegal price, he takes from the buyer more than the law allows. At whatever price the buyer sells, the price he pays the seller remains illegally high, and his profits would be greater were his costs lower.

Id. at 489, 88 S.Ct. at 2229, 20 L.Ed.2d at 1239. In effect, the Hanover Shoe Court acknowledged that in a system allowing pass ons, the real victims — those who paid extra money as a result of the pass on— are not compensated. However, in the interests of antitrust public policies, the Court concluded the defendants should not be allowed to use the pass on theory as a defense. The Court would later revisit similar antitrust issues in Illinois Brick.

In Illinois Brick, the State of Illinois brought suit against concrete block manufacturers, alleging price fixing in violation of section four of the Clayton Act. See 15 U.S.C. § 15. The provision of the Clayton Act at issue there provides “[a]ny person who shall be injured ... by reason of anything forbidden in the antitrust laws may bring suit to recover damages sustained by him.” Id. The United States Supreme Court held the state was an indirect purchaser because it did not buy concrete blocks directly from the manufacturers. Illinois Brick, 431 U.S. at 726, 97 S.Ct. at 2065, 52 L.Ed.2d at 713. The Court drew a line at which the law will not permit remote antitrust claims to be asserted. This bright line has become known as the “indirect-purchaser rule.”

The rule provides indirect purchasers are barred from bringing claims for overcharges under federal law. Id. at 728-29, 97 S.Ct. at 2065-66, 52 L.Ed.2d at 714. The Court explained the “direct purchaser, and not others in the chain of manufacture or distribution, is the party ‘injured in his business or property’ within the meaning of [section 4 of the Clayton Act].” Id. Accordingly, the Court concluded federal antitrust law bars claims by indirect purchasers. Id. at 745^46, 97 S.Ct. at 2074-75, 52 L.Ed.2d at 725.

Over ten years after Illinois Brick, the United States Supreme Court clarified the extent of its ruling. The Court was faced with the question of whether state statutes expressly granting standing to indirect purchasers were preempted by federal law to the contrary. It held nothing in the Sherman Act or in Illinois Brick prevents the states from allowing indirect purchasers to bring antitrust actions, even if this results in multiple recoveries. California v. ARC Am. Corp., 490 U.S. 93, 101-02, 109 S.Ct. 1661, 1665, 104 L.Ed.2d 86, 95 (1989). However, this decision itself did not create a cause of action for indirect purchasers to pursue. It merely authorized the states to provide a cause of action- for indirect purchasers based on state antitrust law. The Class asserts this case compels Iowa to find the same and allow indirect purchasers to recover under state law. We must determine whether we should interpret Iowa antitrust law in the same way the United States Supreme Court has interpreted federal antitrust law.

B. Interpretation of the Iowa Competition Law

Our first role is to interpret the state antitrust statute. We apply our familiar rules of statutory interpretation to the words of the statute. Our goal in interpreting the Iowa Competition Law is to give effect to the purpose and intent of the legislature. State v. Owens, 635 N.W.2d 478, 485 (Iowa 2001). In examining the words of the statute, we give words their ordinary and common meaning absent any specific legislative meaning or meaning in law. Id. at 486. If there is no ambiguity, but the plain meaning of the statute is ascertainable, our inquiry must end. State v. Welton, 300 N.W.2d 157, 160 (Iowa 1981).

The state antitrust. statute is clear on its face. The statute provides, “[a] person who is injured ... by conduct prohibited under this chapter may bring suit.” Iowa Code § 553.12. This statute does not restrict the class of persons who may bring suit under the Iowa Competition Law. Nothing in the statute says in order to seek redress for antitrust violations a purchaser must be directly injured. The legislature did not specifically limit standing to direct purchasers, but instead it simply authorized “[a] person who is injured” to sue. Legislative intent is determined by what the legislature said, not by what it did not say or might have said. State v. Beach, 630 N.W.2d 598, 600 (Iowa 2001); see Bunker’s Glass Co. v. Pilkington, pic, 47 P.3d 1119, 1128 (Ariz. Ct. App.2002). Therefore, we do not regard our legislature’s failure to explicitly authorize indirect purchasers to maintain a suit for antitrust violations as an expression of its agreement with Illinois Brick. See Bunkers’s Glass Co., 47 P.3d at 1128-29. Given the clear, broad language of the state antitrust law, we conclude the Iowa Competition Law creates a cause of action for all consumers, regardless of one’s technical status as a direct or indirect purchaser.

Despite the plain language of the statute, Microsoft argues Iowa does not have authority to allow indirect purchasers redress under our state antitrust laws because our legislature has mandated that the Iowa Competition Law shall be construed to complement federal law. Therefore, Microsoft argues, Iowa is bound by the federal law. The harmonization statute upon which Microsoft relies provides,

This chapter shall be construed to complement and be harmonized with the applied laws of the United States which have the same or similar purpose as this chapter. This construction shall not be made in such a way as to constitute a delegation of state authority to the federal government, but shall be made to achieve uniform application of the state and federal laws prohibiting restraints of economic activity and monopolistic practices.

Iowa Code § 553.2 (emphasis added). Given this statutory provision, the district court agreed with Microsoft and concluded interpretation of the Iowa Competition Law is bound by federal law announced in Illinois Brick. We disagree with this conclusion.

We do not find Iowa Code section 553.2 requires Iowa courts to interpret the Iowa Competition Law the same way federal courts have interpreted federal law. In fact, the harmonization statute specifically states the provision “shall not be made in such a way as to constitute a delegation of state authority to the federal government.” This is not an issue of federal preemption of state law. This argument has been consistently rejected by the United States Supreme Court and by us today. Emergency One, Inc. v. Waterous Co., 23 F.Supp.2d 959, 967 (E.D.Wis.1998). Congress intended federal antitrust laws to supplement, not displace state antitrust remedies. Id. (citing ARC Am., 490 U.S. at 102, 109 S.Ct. at 1661, 104 L.Ed.2d at 95). Furthermore, because Illinois Brick was a decision construing only federal antitrust law, it did not define the connection, if any, between federal and state antitrust laws. The “concept of federalism assumes power, and duty, of independence in interpreting our own organic law.” Pool v. Superior Ct., 139 Ariz. 98, 677 P.2d 261, 271 (Ariz.1984). Given that there is no federal preemption on this issue, we must construe the Iowa Competition Law to encourage the primary goal of antitrust law. Neyens v. Roth, 326 N.W.2d 294, 297 (Iowa 1982) (antitrust laws are remedial and should be broadly construed to effect their purposes); see Bunker’s Glass Co., 47 P.3d at 1124.

In construing the Iowa. Competition Law, we are bound by the purpose of our harmonization provision. Contrary to Microsoft’s assertion, this provision is not aimed at defining who can sue under our state antitrust law. Rather, our legislature clearly announced the purpose of the harmonization statute by stating it is designed to achieve uniform application of the state and federal laws prohibiting monopolistic practices. See Iowa Code § 553.2. The purpose behind both state and federal antitrust law is to apply a uniform standard of conduct so that businesses will know what is acceptable conduct and what is not acceptable conduct. To achieve this uniformity or predictability, we are not required to define who may sue in our state courts in the same way federal courts have defined who may maintain an action in federal court. Rather, our guiding principle in interpreting the Iowa Competition Law is to do so in such way as to prohibit “restraints of economic activity and monopolistic conduct.” Harmonizing our construction and interpretation of state law as to what conduct is governed by the law satisfies the harmonization provision.

Moreover, there is no plain inconsistency between the policies behind the Iowa Competition Law and those underlying federal antitrust law. The United States Supreme Court has held that two statutes, both of which prohibit anticompetitive conduct, are not inconsistent merely because one allows indirect purchasers to sue for damages while the other does not. Mack v. Bristol-Myers Squibb Co., 673 So.2d 100, 110 (Fla.Dist.Ct.App.1996) (citing generally ARC Am., 490 U.S. at 93, 109 5.Ct. at 1661, 104 L.Ed.2d at 86). The federal antitrust statute shows Congress’ concern with the protection of competition, not competitors. State v. Cedar Rapids Bd. of Realtors, 300 N.W.2d 127, 129 (Iowa 1981) (quoting Brown Shoe Co. v. United States, 370 U.S. 294, 320, 82 S.Ct. 1502, 1521, 8 L.Ed.2d 510, 533 (1962)). The goal of federal antitrust law is to prohibit restraint of economic activity and monopolistic practices. Our state antitrust law promotes the same consumer protection policies as does federal antitrust law by “assur[ing] customers the benefits of price competition.” See Associated Gen. Contractors of California, Inc. v. Carpenters, 459 U.S. 519, 538, 103 S.Ct. 897, 908, 74 L.Ed.2d 723, 738 (1983). In order for us to agree with Microsoft that the harmonization statute requires us to prohibit suits by indirect consumers, we must accept the fact that real victims — • those who purchase goods and pay the overcharge — cannot recover. This result would overwhelmingly defeat the purpose of the Iowa Competition Law. Consumers in this state are best protected by permitting all injured purchasers to bring suit against those who violate our antitrust laws.

As a final consideration in our interpretation of the Iowa Competition Law, we must strive to effectuate the purpose and intent of the -legislature. In order to accomplish this, we examine what the current state of the law was at the time our state legislature enacted the Iowa Competition Law. The Iowa legislature passed the current Iowa Competition Law one year before the decision in Illinois Brick. Consequently, it was impossible for the legislature to have adopted a judicial construction which did not exist at that time. The legislature did not have the opportunity to discuss Illinois Brick and accept or reject its law before passing the Iowa Competition Law. See Bunker’s Glass Co., 47 P.3d at 1129 (“We do not consider the legislature’s posiAL977 silence on the issue of indirect purchaser standing as an indication that it acquiesces in the holding of Illinois Brick.”).

Because Iowa took its cues from federal law in creating our state antitrust statute, the federal law in place before Illinois Brick is instructive. Prior to the court’s ruling in Illinois Brick, most federal courts construed section four of the Clayton Act to allow suits by indirect purchasers. Hyde v. Abbott Labs. Inc., 123 N.C.App. 572, 473 S.E.2d 680, 685 (N.C.Ct.App.1996) (citations omitted). In fact before the Illinois Brick ruling, six of the seven federal courts of appeals that considered this issue- held indirect purchasers could recover damages for antitrust violations. Cynthia Urda Kassis, The Indirect Purchaser’s Right to Sue Under Section I of the Clayton Act: Another Congressional Response to Illinois Brick, 32 Am. U.L.Rev. 1087, 1098 (1983) (hereinafter Kassis). Moreover, even the United States Supreme Court prior to Illinois Brick consistently recognized Congress’ intent in enacting section four of the Clayton Act was to protect all victims of antitrust infringements. Id. When the Iowa legislature enacted the Iowa Competition Law, it did so considering the federal law prior to Illinois Brick which allowed indirect purchasers to bring antitrust suits. To the extent we consider relevant federal precedent on this subject as persuasive, we find the status of federal law before Illinois Brick supports our conclusion that the Iowa legislature intended indirect purchasers to have standing under the Iowa Competition Law. See Neyens, 326 N.W.2d at 297 (in construing the Iowa Competition Law, federal cases are of “some help” and we must consider them).

Microsoft relies much on other recent state court rulings on this issue. A number of these state courts have decided not to permit indirect purchasers to sue in state court. See Vacco v. Microsoft Corp., 260 Conn. 59, 793 A.2d 1048 (Conn.2002); Berghausen v. Microsoft Corp., 765 N.E.2d 592 (Ind.Ct.App.2002); Arnold v. Microsoft Corp., No. 2000-CA-002144-MR, 2001 WL 1835377 (Ky.Ct.App. Nov.21, 2001); Davidson v. Microsoft Corp., 143 Md.App. 43, 792 A.2d 336 (Md.Ct.App.2002); Siena v. Microsoft Corp., No. C.A. 00-1647, 2000 WL 1274001 (R.I.Super.Ct. Aug. 21, 2000). On the other hand, in the wake of the Illinois Brick decision, many other states passed legislation insuring indirect purchasers would continue to have a remedy under state law. In total, nineteen states, the District of Columbia, and Puerto Rico have statutes explicitly authorizing indirect purchasers to maintain an antitrust suit. Seventeen other states permit recovery on behalf of consumers, either in the form of restitution or damages under state consumer protection laws or state unfair trade practices statutes. Kevin J. O’Connor, Is the Illinois Brick Wall Crumbling? 15 Antitrust 34, 34-35 (2001) (hereinafter O’Connor). In total, thirty-six states and the District of Columbia recognize a cause of action for indirect purchasers. Id. Additionally, another four states allow the state attorney general to initiate a lawsuit on behalf of the government or natural persons. Id.

Though interesting, what a few other states have chosen to do with their various antitrust laws is not determinative of what is permitted under Iowa state antitrust law. The fact that some other state courts have chosen to bar antitrust suits by indirect purchasers does not deter us from interpreting the Iowa Competition Law consistently with legislative intent and policies behind our antitrust law. Moreover, the fact that thirty-six jurisdictions allow antitrust suits by indirect purchasers militates against Microsoft. This certainly shows a trend, even if by statute, to allow any injured person to maintain a suit. In Iowa, without express legislative comment to the contrary, it is appropriate to interpret the Iowa Competition Law- in conformity with this trend. In sum, based on the words of the statute, we conclude the IowR antitrust law is not bound by the federal antitrust law announced in Illinois Brick.

C. Illinois Brick Policies

Though our primary role is to interpret the words of our statute, in determining the intent of the legislature, it is also helpful to examine the policies underlying Illinois Brick to determine whether they are applicable to the issue before us. The Illinois Brick court was primarily concerned with policy considerations which have not materialized as it envisioned actions in state court. In holding indirect purchasers could not sue to enforce federal antitrust laws, the Illinois Brick court was wholly concerned with the complexity of litigation and the possibility of multiple liability. In barring indirect purchaser suits, the Court reasoned that direct purchasers have the greatest incentive to enforce antitrust laws. We conclude these policy considerations have little, if any, applicability to antitrust suits in state court.

In holding indirect purchasers could not sue to enforce federal antitrust laws, the Court in Illinois Brick was concerned with the possibility of multiple liability. Illinois Brick, 431 U.S. at 730, 97 S.Ct. at 2067, 52 L.Ed.2d at 715. The fear was that both direct and indirect purchasers would each recover the full amount of the overcharge subjecting the antitrust violator to liability more than the allowed three times the amount of the violation. However, given the facts of the case before us, the concern of multiple liability is unfounded. “[T]here are few, if any, reported instances of a defendant paying treble damages to two different classes of purchasers based on a single antitrust violation.” Hyde, 123 N.C.App. 572, 583, 473 S.E.2d 680 (citing Thomas Greene, Should Congress Preempt State Indirect Purchaser Laws? Counterpoint: State Indirect Purchaser Remedies Should he Preserved, 5 Antitrust 25, 26-27 (1990)); see O’Con-nor, 15 Antitrust at 37. Furthermore, the district courts are fully capable of ensuring antitrust defendants are not forced to pay more in damages than amounts to which the injured parties are entitled. Bunker’s Glass Co., 47 P.3d at 1130 (citing In re W. Liquid Asphalt Cases, 487 F.2d at 201 (“The day is long past when courts ... will deny relief to a deserving plaintiff merely because of procedural difficulties or problems of apportioning damages.”)). Even assuming such danger of multiple liability exists, there is no federal policy against states imposing liability in addition to that imposed under federal law. Id. We conclude it is in the best interests of the citizens of Iowa to allow indirect purchaser suits despite the remote possibility of multiple liability.

The Court in Illinois Brick also stated those who were directly injured have the greatest incentive to bring suit to enforce antitrust laws. Illinois Brick, 431 U.S. at 735, 97 S.Ct. at 2069, 52 L.Ed.2d at 718. However, later in ARC America, the Court stated “[sjtate indirect purchaser statutes pose no similar risk to the enforcement of the federal law.” ARC Am., 490 U.S. at 104, 109 S.Ct. at 1667, 104 L.Ed.2d at 97. Clearly, direct purchasers such as Dell, Compaq, Gateway, and IBM have not sued Microsoft for antitrust infringements. Even the majority in Illinois Brick recognized that direct purchasers likely will not enforce antitrust laws out of fear of retaliation by their suppliers, such as Microsoft — the sole supplier of a popular operating system. See Illinois Brick, 431 U.S. at 746, 97 S.Ct. at 2074-75, 52 L.Ed.2d at 725. Instead, the direct purchasers pass the overcharge onto indirect consumers who are ultimately damaged by Microsoft’s monopolistic conduct. See id. at 764, 97 S.Ct. at 2084, 52 L.Ed.2d at 736 (Brennan, J., dissenting); Mack, 673 So.2d at 108 n. 7; see also Jeff Patterson, Note, Microsoft Antitrust Litigation: Illinois Brick Defeats its Intended Purpose, 5 J. Small & Emerging Bus. L. 377, 384-85 (2001). The fact that no direct purchaser has yet sued Microsoft for antitrust violations suggests that no direct purchaser will do so.

It is the indirect purchaser, not the direct purchaser, who is most frequently injured. Kassis, 32 Am. U.L.Rev. at 1087 (“Price fixing and other antitrust violations most frequently injure indirect purchasers — those who purchase goods through retailers and other middlemen rather than directly from the antitrust violator.” (citing S.Rep. No. 96-239 at 2 (1979)). The Illinois Brick majority conceded the ultimate effect of allowing only direct purchaser suits is that the person “actually injured” — the indirect purchaser who paid the overcharge — will have no redress. Illinois Brick, 431 U.S. at 746, 97 S.Ct. at 2075, 52 L.Ed.2d at 725. The true incentive to enforce antitrust law lies with the real victims, like those of the Class, who may lack a direct business relationship with the antitrust violator. See O’Connor, 15 Antitrust at 38. Therefore, to facilitate enforcement of the policies behind the Iowa Competition Law, indirect purchasers, the real victims, must be authorized to bring a cause of action in state court. In allowing indirect purchaser suits in Iowa, we do nothing more than recognize the concern articulated by the Illinois Brick Court and fashion a remedy for the ultimate victims of antitrust violations.

Finally, the Court in Illinois Brick stated its concern that allowing indirect purchasers to sue would result in highly complex litigation. Illinois Brick, 431 U.S. at 745-47, 97 S.Ct. at 2074-75, 52 L.Ed.2d at 724-25. The Illinois Brick Court feared the determination of damages would become complicated because direct purchasers damaged by the overcharge would simply pass on the increased cost to consumers. Consequently, the damages must be apportioned among a number of parties. Id. at 745-47, 97 S.Ct. at 2074-75, 52 L.Ed.2d at 724-26. The Court stated litigation would grow increasingly more complicated because the determination of damages on a proportionate scale would be very difficult. Id. at 732, 97 S.Ct. at 2067-68, 52 L.Ed.2d at 716-17. However, the House Report on H.R. 11942 concluded the Court overstated the potential complexity in Illinois Brick. Kassis, 32 Am. U.L.Rev. at 1116 (citing H.R.Rep. No. 95-1397 at 13 (1978)). Both the Senate Judiciary Committee and the Class acknowledged this is a valid concern. However, both also correctly stated we should not defeat the ends of justice simply because the litigation may be complicated. See id. (citing S.Rep. No. 95-934 at 6-7 (1978) (concluding the difficulty in proving pass-on damages does not justify ignoring the rights of indirect purchasers and the courts or legislature can resolve any management problems that may be inherent in the litigation)).

Complexity is not a foreign concept in the world of antitrust. These cases typically involve highly intricate litigation. See Illinois Brick, 431 U.S. at 758, 97 S.Ct. at 2081, 52 L.Ed.2d at 733 (Brennan, J., dissenting); see also Bunker’s Glass Co., 47 P.3d at 1125. We also note there is an absence of cases in which the court was faced with the impossible task of apportioning damages. The situation before us is further distinguishable from Illinois Brick because here we are dealing with only one manufacturer. The Court in Illinois Brick was faced with the possibility of tracing overcharges through multiple manufacturers. Certainly, that situation presents increased difficulties that are not found in the case before us. We conclude the possibility of complex litigation is an insufficient reason for us to find indirect purchasers must be barred from bringing a state cause of action for antitrust violations.

IV. Conclusion

Nothing in the Iowa Competition Law or in federal antitrust law requires us to find indirect purchasers may not maintain an antitrust action in Iowa state courts. We conclude our antitrust law contemplates all injured consumers are authorized to bring suit to enforce our antitrust laws. Since the Class may pursue an action for violation of the Iowa Competition Law it has stated a claim upon which relief may be granted. We conclude the motion to dismiss should not have been granted and reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

All justices concur except CARTER and CADY, JJ., who dissent.

CARTER, Justice

(dissenting).

Contrary,to the opinion of the court, I believe that the reasons advanced by the Court in the Illinois Brick Co. case, 431 U.S. at 745-46, 97 S.Ct. at 2074-75, 52 L.Ed.2d at 724-25, for precluding recovery by indirect purchasers under federal antitrust law, are persuasive and apply with equal force to the issue of such recovery under state antitrust laws. I would affirm the judgment of the district court.

CADY, Justice

(dissenting).

I respectfully dissent.

The majority articulates many policies that support permitting an indirect purchaser to sue under the Iowa Competition Law, and has identified a few other states that permit an indirect purchaser to sue. Nevertheless, this case is not about which policy is better or trends in other states. If it were, the majority would have to acknowledge that the authority for indirect purchasers to sue in other states has typically been traced to specific legislative enactments in those states or a statutory scheme that does not include a rule of construction requiring state law to follow federal court interpretations of the federal antitrust statutes. See Vacco, 793 A.2d at 1061 n. 20. Instead, I believe this case solely involves the interpretation of our Iowa statute, and the majority has failed to interpret the statute according to the directive of our legislature.

We do not determine the policy of our law, nor establish trends for our legislature. We only seek to interpret statutes consistent with the intent of our legislature.

The key to the resolution of the issue in this case rests on the interpretation of section 553.12 of the Iowa Competition Law. This law generally prohibits restraint of trade or the use of a monopoly to exclude competition or influence prices in the market, subject to certain exemptions. Iowa Code §§ 553.4-6. The law also gives criminal and civil enforcement powers to the attorney general of this state, including the power to investigate. Id. §§ 553.7, .9. Additionally, the law authorizes the state, or “a person who is injured” by the prohibitive competition, to bring an action to, inter alia, recover actual damages. Id. § 553.12(2). The question in this case is whether our legislature intended this language to include a person who can only claim an indirect injury.

On its face, this question has no easy resolution. The cause of action created under the statute extends to “a person who is injured.” Yet, our legislature did not further define “a person who is injured” by the conduct prohibited under the law.

The majority concludes the language of the statute is clear and unambiguous on its face, and creates a cause of action for all consumers, without any restrictions on the class or type of consumer. It then minimizes and ultimately rejects the specific rule of construction our legislature provided for us in section 553.2 to resolve disputes over the meaning of the competition law. Finally, it reviews the various policy considerations underlying the issue whether to allow lawsuits by indirect purchasers, and adopts the policies that favor antitrust actions by indirect purchasers. In my mind, the majority has utilized faulty reasoning, and abandoned its judicial role. Under the fundamental doctrine of separation of powers, we are obligated to construe statutes to carry out the will of the legislative branch. 2A Norman J. Singer, Sutherland Statutory Construction § 45:03, at 19-20 (6th ed.2000) [hereinafter Sutherland Statutory Construction]. The majority has ignored the expressed will of the legislature and has become the policymakers of our government.

The very premise used by the majority is simply incorrect. The statute is not clear and unambiguous, and I can find no other jurisdiction in this country that has taken such an approach when faced with the question before us. An ambiguity exists in a statute “when a statute is capable of being understood by reasonably well-informed persons in two or more different senses.” Id. § 45:02, at 11-12. Considering the simple fact that most jurisdictions have concluded that indirect purchasers are not persons who are injured under antitrust law, I would conclude on that basis alone that our statute is capable of different meanings.

To resolve the ambiguity of the statute, we are obligated to ascertain the legislative intent, and we have adopted a variety of rules and principles to accomplish this purpose, just as our legislature has provided a variety of general rules of statutory interpretation. See Iowa Code ch. 4 (delineating rules to apply in the construction of statutes). Yet, in this instance, our legislature has provided a general interpretative rule specifically applicable to the Iowa Competition Law. Iowa Code section 553.2 provides:

This chapter shall be construed to complement and be harmonized with the applied laws of the United States which have the same or similar purpose as this chapter. This construction shall not be made in such a way as to constitute a delegation of state authority to the federal government, but shall be made to achieve uniform application of the state and federal laws prohibiting restraints of economic activity and monopolistic practices.

(Emphasis added.)

We have recognized that interpretational directives, such as legislative definitions, are binding on us in our role of interpreting statutes. S & M Fin. Co. v. Iowa State Tax Comm’n, 162 N.W.2d 505, 507 (Iowa 1968). Internal legislative construction is given the highest value by courts, and prevails over other extrinsic statutory aides of construction. 1A Sutherland Statutory Construction § 27:2, at 625-26 (6th ed.2002); see Lauridsen v. City of Okoboji Bd. of Adjustment, 554 N.W.2d 541, 543 (Iowa 1996); S & M Fin. Co., 162 N.W.2d at 508. Similarly, specific legislative directives specifying how a particular statute should be construed and applied should also be binding on us, and utilized to resolve doubts over the meaning of a statute. 1A Sutherland Statutory Construction § 27:1, at 624, § 27:3, at 631.

Thus, in resolving the question whether “a person who is injured” includes an indirect purchaser, we must rely on the guidance of the interpretive statute given to us by the legislature as its expression of the very intent we are obligated to ascertain and follow. This statute specifically directs that the Iowa Competition Law “be construed to complement and be harmonized with the applied laws of the United States which have the same or similar purpose as this chapter.” Iowa Code § 553.2. To further assist us, our legislature indicated that this rule of construction was not established as a means of delegating authority to the federal government, but to achieve uniform application of the state and federal laws governing eompeti-tipn. Id.

The majority attempts to minimize the impact of this statutory rule of construction by declaring that it does not establish federal preemption of state law and does not apply .to the remedy portion of the Iowa Competition Law, but- only to the provisions dealing with prohibited conduct. These arguments are simply misplaced. First, the fact that section 553.2 is not a doctrine of federal preemption does not minimize its application as a rule of construction. The statute is what it is: an important key to guide courts interpreting the Iowa Competition Law. Second, it is not limited to any specific part of the Iowa Competition Law, but applies to every statutory provision within the competition law. Section 553.2 makes this abundantly clear by pronouncing, “This chapter shall be construed .... ” The legislature then merely explained that it was establishing a rule of construction, not a federal preemption doctrine, and in doing so mentioned its desire for uniformity in the law prohibiting anti-competition practices. Clearly, this explanation was not intended as a restriction on the rule of construction to limit it to those specific sections of the chapter that define monopolistic practices. Moreover, an explanation that the law be construed to be uniform with federal law prohibiting competition is not inconsistent with the rule that “[tjhis chapter” be construed to complement federal law as interpreted by the federal courts.

Section 553.2 directs us to construe the Iowa Competition Law to complement and harmonize its provisions with the federal law as applied by the federal courts. Id. Our legislature wanted to achieve uniform application of state and federal antitrust law. Id.

Within a year following enactment of the legislative rule of construction, the United States Supreme Court held that a person who is not a direct purchaser from a violator is not authorized to bring a federal antitrust suit under section 4 of the Clayton Act, 15 U.S.C. § 15(a). Illinois Brick Co., 431 U.S. at 745-46, 97 S.Ct. at 2074-75, 52 L.Ed.2d at 725. Similar to section 553.12, section 4 of the Clayton Act provides “[a]ny person who shall be injured ... by reason of anything forbidden in the antitrust laws may sue .... “ 15 U.S.C. § 15(a).

Thus, the conclusion we must draw is clear. The federal courts have interpreted the federal antitrust law to exclude indirect purchasers as “a person who has been injured.” Our legislature wants us to harmonize the Iowa Competition Law with federal antitrust law so that the two laws will have uniform application. This directive is a clear indication our legislature intended to exclude indirect purchasers.

The majority, nevertheless, declares it is not inconsistent to give an indirect purchaser a cause of action in state court, while precluding such a cause of action in federal court. This argument, however, can only be formulated by debating the policy of the law and minimizing the scope of the legislative directive. This is not our role. We must interpret the meaning of the language of section 553.12 by utilizing the directives of section 553.2.

Lastly, the majority argues that section 553.2 cannot be viewed as a legislative endorsement of Illinois Brick because the opinion was not decided until after section 553.2 was enacted. There is, however, nothing in section 553.2 to even hint that our legislature only wanted our competition law to be uniform with the applied laws of the federal government as they existed at the time section 553.2 was enacted. In fact, such an approach would be contrary to the clear intent of our legislature to maintain uniformity between state and federal law. The rule of construction established by section 553.2 is unrelated to the doctrine of legislative acquiescence of existing legal principles. It is, plain and simple, a rule of construction. We are obligated to use it, which leads only to one result. The majority has failed to reach this result, and, by doing so, has engaged in lawmaking in violation of the separation of powers doctrine.

      . The term "pass on” describes “the process by which a middleman in the chain of distribution who has been charged by a manufacturer or by a producer adjusts his prices upward so as to pass on his increased costs to his own customers.” Annot., 55 A.L.R. Fed. 919, 922 n. 3. (1981).

      . Justice Blackman, joining in Justice Brennan's Illinois Buck dissent, commented if not for Hanover Shoe he was certain the Court in Illinois Brick would have permitted indirect purchasers to maintain an antitrust action. Illinois Brick, 431 U.S. at 765, 97 S.Ct. at 2085, 52 L.Ed.2d at 737 (Blackman, J., dissenting). Commenting on Hanover Shoe, Justice Brennan stated, "[d]espite the superficial appeal of the argument that Hanover Shoe should be applied ‘consistently,’ thus precluding plaintiffs and defendants alike from proving that increased costs were passed along the chain of distribution, there are sound reasons for treating offensive and defensive passing-on cases differently.” Id. at 754, 97 S.Ct. at 2078, 52 L.Ed.2d at 730 (Brennan, J., dissenting). Justice Brennan stated the same policies at the heart of Hanover Shoe — "insuring continued effectiveness of the treble-damages action and preventing wrongdoers from retaining the spoils of their misdeeds”' — favor permitting indirect purchasers to prove they absorbed an overcharge as a result of a direct purchaser’s pass on. Id. Justice Brennan advocated limiting Hanover Shoe to cases where the defendant uses the pass on theory defensively and where direct and indirect purchasers are not parties in the same action. Id.

      . Congress enacted the first of the federal antitrust statutes in 1890 under the Sherman Act. In it, Congress authorized a private cause of action for treble damages and attorney’s fees to any person injured as a result of antitrust violations. This provision was reenacted as section four of the Clayton Act.

      . A Maryland federal district court granted Microsoft’s motion to dismiss the money damages claims in a number of private antitrust cases against Microsoft virtually identical to the case before us. In re Microsoft Corp. Antitrust Litig., 127 F.Supp.2d 702 (D.Md.2001), leave to appeal denied sub nom. Kloth v. Microsoft Corp., No. 01-656, CA-11-2117-JFM (4th Cir. June 27, 2001). The Maryland court in this case held the plaintiffs as indirect purchasers were barred from bringing claims for alleged overcharges under federal law, pursuant to Illinois Brick. However, the court expressly reserved comment on whether Illinois Brick was incorporated into the state law of a number of states pending resolution of current appeals, including the one before us, that raised the issue. See also Arnold v. Microsoft Corp., No. 00-CI-00123, 2001 WL 193765 (Ky.Cir.Ct. July 21, 2000), aff'd, No. 2000-CA-002144-MR, 2001 WL 1835377 (Ky.Ct.App. Nov.21, 2001); Kieffer v. Mylan Labs., No. BER-L-365-99-EM, 1999 WL 1567726 (N.J.Super.Sept. 9, 1999); Arnold v. Microsoft Corp., No. 00-CI-00123, 2001 WL 193765 (Ky.Cir.Ct. July 21, 2000), aff'd, No.2000-CA-002144-MR, 2001 WL 1835377 (Ky.Ct.App. Nov.21, 2001).

      . The distinction between direct and indirect purchasers in antitrust law is akin to early distinctions in product liability tort law between tort plaintiffs in privity with the manufacturer and those who were not in direct privity. Early cases refused to allow injured plaintiffs to recover from the manufacturer if the parties were not in privity. However, the trend in tort law soon relaxed and many jurisdictions began to allow such suits. In a prominent case, the New York Court of Appeals found it may be “inferred from the nature of the transaction” that "in the usual course of events the danger will be shared by others than the [direct] buyer.” MacPherson v. Buick Motor Co., 217 N.Y. 382, 389-90; 111 N.E. 1050-51, (1916) (discussing the progression of the law since the landmark case in the Court of Appeal of England, Heaven v. Pender, L.R. 11 Q.B. Div. 503 (1882-83)). The courts now recognize that in product liability, an "indirect purchaser,” i.e., one who is not in privity with the manufacturer, is the one more often directly injured by a manufacturer's negligent conduct. Consequently, courts will allow an indirect purchaser in this situation to recover damages.

      . Citing In re W. Liquid Asphalt Cases, 487 F.2d 191 (9th Cir.1973); Yoder Bros., Inc. v. Cal.-Fla. Plant Corp., 537 F.2d 1347 (5th Cir.1976); Illinois v. Bristol-Myers Co., 470 F.2d 1276 (D.C.Cir.1972); West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079 (2d Cir.1971); In re Master Key Antitrust Litig., 1973-2 Trade Cas. (CCH) ¶ 74,680 (D.Conn.1973).

        .See, e.g., Cal. Bus. & Prof.Code § 16750(a) (enacted in 1978); D.C.Code Ann. § 28-4509 (1980); Haw.Rev.Stat. §§ 480-3, 480-14 (enacted in 1987); 740 Ill. Comp. Stat. § 10-7(2) (West 1997); Kan. Stat. Ann. 10, § 1104 (enacted in 1989); Md.Code Ann., Com. Law I § 11 — 209(b)(2)(ii) (enacted in 1982); Mich. Comp. Laws Ann. § 445.778(2) (enacted in 1984); Minn.Stat. Ann. § 325D.57 (enacted in 1984); N.M. Stat. Ann. § 57-l-3(A) (1979); N.Y. Gen. Bus. Law § 340(6) (enacted in 1980); S.D. Codified Laws § 37-1-33 (enacted in 1980); Wis. Stat. § 133.18(l)(a) (enacted in 1979).

      . These states are: Alaska, Arizona, Arkansas, Connecticut, Florida, Kentucky, Louisiana, Massachusetts, Missouri, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Utah, Washington, and West Virginia. O'Connor, 15 Antitrust at 35 n. 4.

      . These states are: Colorado, Delaware, Maryland, and Virginia. O’Connor, 15 Antitrust at 35 n. 6.

      . A number of legal commentators have criticized Illinois Brick for its bad public policy. See Bunker’s Glass Co., 47 P.3d at 1129 (citing Phillip E. Areeda, Roger D. Blair & Herbert Hovencamp, Antitrust Law 346, at 378 (2000); Joseph P. Bauer, The Stealth Assault on Antitrust Enforcement: Raising the Barriers for Antitrust Injury and Standing, 62 U. Pitt. L.Rev. 437 (2001); Roger D. Blair & Jeffrey L. Harrison, Reexamining the Role of Illinois Brick in Modem Antitrust Standing Analysis, 68 Geo. Wash. L.Rev. 1 (1999); Kevin J. O’Connor, Is the Illinois Brick Wall Crumbling?, 15 Antitrust, 34, 34-35; 37-38 (2001); Robert G. Harris & Lawrence A. Sullivan, Passing on the Monopoly Overcharge: A Comprehensive Policy Analysis, 128 U. Pa. L.Rev. 269, 270-73, 338-54 (1979)); Jeff Patterson, Microsoft Antitrust Litigation: Illinois Brick Defeats its Intended Purpose, 5 J. Small & Emerging Bus. L. 377 (2001).

      . Several state legislatures had similar concerns in enacting their state antitrust statutes. See, e.g., 740 Ill. Comp. Stat. § 10-7(2) (West 1997) (“the court shall take all steps necessary to avoid duplicative liability for the same injury including transfer and consolidation of all actions”); N.M. Stat. Ann. § 57-l-3(C) (1979) ("any defendant, as a partial or complete defense ... may, in order to avoid duplicative liability ... be entitled to prove that the plaintiff purchaser or seller ... who paid any overcharge or received any underpayment, passed on all or any part of such overcharge or underpayment to another purchaser”); S.D. Codified Laws § 37-1-33 (enacted in 1980) ("the court may take any steps necessary to avoid duplicative recovery”).


source: Caselaw Access Project

author: BLATZ, Chief Justice.

license: Public Domain

text:
    In re Petition of John M. STUART, State Public Defender, Petitioner. State of Minnesota, Respondent, v. Roger L. Schleicher, Respondent.
    No. C7-01-1824.
    Supreme Court of Minnesota.
    July 11, 2002.

      John M. Stuart, State Public Defender, Minneapolis, for Petitioner.
    Mike Hatch, Attorney General, St. Paul, Douglas L. Ruth, Steele County Attorney, Owatonna, Roger L. Schleicher, St. Peter Regional Treatment Center, St. Peter, for Respondent.
   OPINION

BLATZ, Chief Justice.

Respondent Roger Schleicher was indicted for first-degree murder and initially appeared in court on this matter without counsel. A public defender was appointed to act as advisory or standby counsel, and later as counsel for Schleicher. The public defender brought a motion for discharge from representation based on the public defender’s belief that Schleicher was not financially eligible given his ownership of an unencumbered home and receipt of a monthly pension. The district court denied the motion to discharge the public defender on the basis that real estate could not be considered a liquid asset available to pay an attorney. The State Public Defender (SPD) brought a petition for writ of mandamus in the court of appeals, seeking an order requiring discharge of the public defender. The court of appeals denied the petition. We reverse and by writ of mandamus order the district court to consider Schleicher’s assets including his real property in determining his eligibility for public defense services.

Schleicher was indicted for first-degree murder in Steele County in connection with a shooting death that occurred at his residence on December 29, 2000. Schleicher initially appeared in court without counsel, and refused to fill out the financial eligibility application for public defender services. The court appointed a public defender to act as advisory or standby counsel, and in this capacity appointed counsel requested a Rule 20 evaluation of Schleicher’s competency. See Minn. R.Crim. P. 20.01.

The district court conducted a Rule 20 competency hearing. During that hearing appointed counsel brought to the court’s attention financial information Schleicher had disclosed during a psychological evaluation, in which Schleicher estimated his assets at $350,000, including a home, a 1997 Chevrolet Tahoe, and a monthly disability income of $2,000. Schleicher was required to pay $630 monthly in child support for three children, then aged 20, 17 and 15. Based on the information provided to the district court, appointed counsel asked that he be relieved of his duty as advisory counsel. The court denied the request, stating that Schleicher was not competent to waive counsel and that he needed representation. The court then modified the appointment from advisory counsel for Schleicher to an appointment for full representation. After this hearing, Schleicher was found to be mentally ill and incompetent and was committed to the Minnesota Security Hospital.

Based on a new psychological evaluation completed several months later, the court declared Schleicher competent to proceed in the criminal case. Appointed counsel brought a second motion to discharge the public defender’s office from representing Schleicher, arguing that Schleicher’s refusal to execute a financial statement in an application constituted waiver of his right to the appointment of a public defender. Appointed counsel further argued that Schleicher was financially able to obtain counsel. In support, appointed counsel submitted real estate records that showed that Schleicher was the sole owner of unencumbered real property with an assessed market value of approximately $104,000. Evidence was also presented indicating that on June 1, 2001, the day after he was found competent to stand trial, Schleicher filed a quit claim deed transferring ownership of his home to his son for consideration of “$500 or less.”

Appointed counsel also informed the court that one month prior to the murder indictment, Schleicher applied for and was denied public defender representation on an unrelated criminal charge in another county. In that application Schleicher disclosed a gross annual income of $25,000, with monthly expenses including child support of $1,425. Schleicher also reported owning a house valued at $100,000, a truck valued at $20,000, a boat and snowmobile worth $7,000, and $7,000 in cash on hand.

At the hearing on the motion to discharge the public defender in this case, Schleicher finally filled out an application for public defender services, disclosing a net annual income of $12,000 from railroad retirement, $400 in a savings account, and a car valued at $22,000 that was currently impounded. Schleicher further disclosed that he owned no boats or snowmobiles, no real property of any sort, and no other property of value. Upon examination, Schleicher admitted that he gave his home away without consideration to his son, and that it had an assessed value for tax purposes of $104,000. Schleicher explained that he gave his son the house because he did not want the state to take it as compensation for the cost of his care at the state facility to which he was committed.

Based on this evidence, the district court concluded that Schleicher qualified for public defender services. Appointed counsel objected to his continued appointment on the basis that the transfer of the real estate was fraudulent, and that Schleicher could obtain counsel by liquidating his home. The district court noted that while the transfer of the homestead “is perhaps voidable,” the defendant did not appear to have the funds “immediately available” to hire counsel. The court stated that eligibility criteria required consideration of “liquid assets, which would be non-real estate, certainly non-homestead.” In so doing, the court stated: “I don’t believe the assets * * * based on the * * * at least questionable transfer of the defendant’s homestead, is a liquid asset that [Schleicher] can have sufficient access to * ⅜ ⅜ go out an¿[ counsel with.” The court also stated that if the property had stayed as Schleicher’s homestead, “I don’t think normally I would have looked at that as a liquid asset.”

The SPD-then filed a petition for a writ of mandamus in the court of appeals, seeking the discharge of the public defender from representation of Schleicher. The court of appeals denied the petition holding that the SPD had not shown that Schleicher’s assets were “liquid assets” as a matter of law, or that Schleicher was “clearly able” to pay the costs of a defense in a first-degree murder prosecution. The SPD now appeals the denial of its petition for a writ of mandamus.

We have not had an opportunity to articulate a standard of review for the district court’s determination of financial -eligibility for public defender services. Many courts hold that the decision to appoint counsel is within the discretion of the district court. See, e.g., Cooper v. State, 639 So.2d 1320, 1325 (Miss.1994) (holding whether defendant may proceed in forma pauperis is committed to sound discretion of trial court); State v. Rochefort, 129 Or. App. 296, 878 P.2d 1111, 1112-13 (1994) (applying abuse-of-discretion standard); State v. Wolverton, 193 Wis.2d 234, 533 N.W.2d 167, 175 (1995) (holding erroneous exercise of discretion for trial court to rule that court is bound by indigency criteria followed by public defender). But see State v. Vincent, 883 P.2d 278, 281 (Utah 1994) (noting “the underlying empirical facts regarding [a] claim of indigency are reviewable for clear error; the conclusion as to whether those facts qualify the defendant as indigent is reviewable for correctness”). We agree that review of the district court’s appointment of the public defender should be for abuse of discretion.

This case also arises on a petition for a writ of mandamus. To obtain a writ of mandamus, a petitioner must establish that the court had a clear and present official duty to perform a certain act. State v. Pero, 590 N.W.2d 319, 323 (Minn.1999). Where, as in this case, the act the court is charged with is a discretionary one, the petitioner must establish that failure to perform it “ ‘was so arbitrary and capricious as to constitute a clear abuse of discretion.’ ” McIntosh v. Davis, 441 N.W.2d 115, 118 (Minn.1989) (quoting Baker v. Connolly Cartage Corp., 239 Minn. 72, 74, 57 N.W.2d 657, 658 (1953)). A writ of mandamus may be issued to require a court to exercise its discretion, but may not be issued to control how the court exercises its judicial discretion. State v. Davis, 592 N.W.2d 457, 459 (Minn.1999). The SPD identified the duty the district court failed to perform in this case as the inquiry into the liquidity of real estate assets to determine eligibility for public defender services.

Initially, we note that the district court properly made every effort to safeguard Schleicher’s right to counsel while his competency was in question. In particular, the court recognized that Schleicher was not capable of waiving his right to counsel due to his mental illness. See Minn. R.Crim. P. 20.01, subd. 1 (“A defendant shall not be permitted to waive counsel who lacks sufficient ability to knowingly, voluntarily, and intelligently waive the constitutional right to counsel * * *.”); State ex rel Riendeau v. Tahash, 276 Minn. 26, 29, 148 N.W.2d 557, 559-60 (1967) (holding district court erred in not appointing counsel for pretrial hearing where competency was at issue). The court’s action in this difficult procedural posture assured adequate representation during the competency proceeding and during the time that he was adjudicated incompetent to assist in his own defense. Once Schleicher was restored to competency, however, the court was faced with the question of his eligibility for public defender services.

We begin our analysis with the Sixth Amendment, which guarantees that an accused in a criminal prosecution has the right to the assistance of counsel for his defense. Gideon v. Wainwright, 372 U.S. 335, 339-45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (holding Sixth Amendment applicable to state criminal proceedings); Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158 (1932) (holding court’s refusal to hear a defendant through counsel constitutes due process violation). In accordance with this constitutional principle, courts have long required appointment of counsel for criminal defendants who are financially unable to obtain counsel for their defense. Gideon, 372 U.S. at 344-45, 83 S.Ct. 792. “[A]ny person haled into court, who is too poor to hire a lawyer, cannot be assured of a fair trial unless counsel is provided for him.” Id. at 344, 83 S.Ct. 792.

It is out of this concern for the right to counsel that we must jealously guard the resources of the SPD, and not provide counsel to those who are able to afford an attorney. The right to counsel necessarily encompasses the right to effective assistance of counsel, which requires time and preparation. When an ineligible defendant is provided with services by the public defender, those finite resources are improperly diverted from the representation of other clients of the public defender. Almost ten years ago we recognized that state funding for the Board of Public Defense has not kept pace with the increased workloads and responsibilities of our public defender system. Dziubak v. Mott, 503 N.W.2d 771, 775 (Minn.1993) (“Workload is too high in every [public defender] district given the current level of staff.”) (quoting The Spangenberg Group, Weighted Caseload Study for the State of Minnesota Board of Public Defense 20 (1991)). The SPD asserts that not only has this sitúation not improved, it has perhaps gotten worse. For these reasons, qualification of applicants is essential so that the resources of the public defender system are not unnecessarily depleted by people who, in their own right, can obtain legal counsel with their own resources. Therefore, courts must not appoint counsel for a defendant who is financially capable of retaining counsel on his own but refuses to hire an attorney. Hanson v. Passer, 13 F.3d 275, 280 (8th Cir.1994); Spevak v. United States, 158 F.2d 594, 596 (4th Cir. 1946); State v. Zimmer, 198 Kan. 479, 426 P.2d 267, 272 (1967).

Under the Minnesota Rules of Criminal Procedure, a defendant is “financially unable to obtain counsel” if:

(1) The defendant, or any dependent of the defendant who resides in the same household as the defendant, receives means-tested governmental benefits; or
(2) The defendant, through any combination of liquid assets and current income, would be unable to pay the reasonable costs charged by private counsel in that judicial district for a defense of a case of the nature at issue; or
(3) The defendant can demonstrate that due to insufficient funds or other assets: two members of a defense attorney referral list maintained by the court have refused to defend the case or, if no referral list is maintained, that two private attorneys in that judicial district have refused to defend the case.

Minn. R.Crim. P. 5.02, subd. 3 (emphasis added). Because Schleicher does not receive a means-tested government benefit, and because the record does not demonstrate that he has attempted to secure private counsel and been refused, only category 2 is at issue here.

The SPD argues that the equity value of real property fits the definition of “liquid asset” because it is readily convertible to cash. The district court concluded that the eligibility criteria required consideration of “liquid assets, which would be non-real estate, certainly non-homestead.” Thus, the district court indicated its unwillingness to consider real estate as a liquid asset under any circumstance.

While the term “liquid asset” is susceptible to common understanding, we have previously construed the term with specific regard to the context in which it arose. In McNiff v. Olmsted County Welfare Dept., 287 Minn. 40, 176 N.W.2d 888 (1970), wé held that the term could not be interpreted to exclude a beneficiary’s interest in a testamentary trust in light of the purpose of the medical assistance program at issue, which was to provide medical care for those who could not pay for such care. Id. at .44-45, 176 N.W.2d at 892. Similarly, liquid assets for purposes of Minn. R.Crim. P. 5.02, subd. 3, must be construed in light of the context of public defender eligibility. If an asset can be readily converted to cash or used to secure an indebtedness, the asset should be considered liquid for purposes of Rule 5.02, given that public defender services are available only to those who cannot hire an attorney on their own. See Bolds v. Bennett, 159 N.W.2d 425, 428 (Iowa 1968) (providing that court determining public defender eligibility should consider readily available assets, such as property “of such nature and net value that it would be immediately accepted in lieu of or as a fee by a legally qualified attorney”)

We believe that the district court’s unwillingness to consider whether the particular real estate owned is a liquid asset constitutes a failure to exercise the court’s discretion. Under Minn. R.Crim. P. 5.02, the court has a duty to determine whether the assets of the applicant for public defender services, including real estate holdings, are liquid. The court’s refusal to consider real estate assets thus constitutes a failure to perform an act that the court had a duty to perform. Therefore, the court of appeals erred in refusing to issue a writ of mandamus requiring consideration of Schleicher’s real estate assets in this case.

We also note that the court of appeals appears to have placed the burden on the SPD to establish ineligibility for public defender services. Under federal law and in other states, the burden is on the defendant to show that he or she is financially unable to afford representation. See, e.g. United States v. Lefkowitz, 125 F.3d 608, 621 (8th Cir.1997); State v. Smith, 677 A.2d 1058, 1060 (Me.1996); State v. DuPaul, 527 N.W.2d 238, 241-42 (N.D.1995). This allocation of the burden of proof properly places the burden on the party that has in its possession the relevant information, and prevents further dilution of the resources of the public defender’s- office that would result from requiring that office to investigate an applicant’s assets. Accordingly, we join- those states and the federal courts that allocate the burden of proof to the applicant for public defender services.

While we hold that the district court failed to exercise its discretion in determining eligibility for public defender services, we do not dictate to the district court how to exercise its discretion but remand for further consideration by the district court. See Davis, 592 N.W.2d at 459. In that regard, a threshold determination in this case is whether the homestead remains available to be considered part of Schleicher’s assets. Further, the court must evaluate Schleicher’s post-application transfer of the home to his son for no consideration. The Second Circuit has held that “a defendant’s claim of indi-gency certainly should be rejected when he puts his own assets into his relatives’ names and those assets remain at his disposal.” United States v. Rubinson, 543 F.2d 951, 964 (2d Cir.1976). In Rubinson the Second Circuit found overwhelming evidence to support the district court’s finding that Rubinson was financially able to retain counsel where he put assets in the name of other members of his family to conceal them from “creditors, the government and the court.” Id.; see also State v. Harris, 5 Conn.Cir.Ct. 313, 250 A.2d 719, 721 (1968) (“Of course, a person claiming the benefits of the [public defender] statute cannot conceal his assets and demand the services of a public defender at state expense.”); Williams v. Superior Court, 226 Cal.App.2d 666, 672, 38 Cal.Rptr. 291 (1964) (“Of course, he cannot hide his assets and demand the help of a public defender at public expense.”).

Schleicher admitted putting his home in his son’s name so that the state could not seize the asset as compensation for his care at a state hospital. In general, a court determining eligibility for public defender services must consider whether transfer of an asset is voidable as a fraudulent conveyance. See Minn.Stat. § 513.44 (2000) (defining fraudulent transfer with respect to present and future creditors); MinmStat. § 513.47(a)(1) (2000) (providing for avoidance of the transfer as a remedy of a creditor). If a homestead is to be considered an asset of the defendant for purposes of determining public defender eligibility, the court must be attuned to transfers of homestead property for little or no. consideration in an attempt or with the effect of establishing public defender eligibility. We note that the Kansas State Board of Indigents’ Defense Services has adopted a rule that specifies that the value of any property transferred after the date of the commission of the alleged offense shall be included in the defendant’s liquid assets. Kan. Admin. Regs. 105-4-2(2). Likewise, we believe that eligibility for public defender services in Minnesota should include consideration of the value of homestead property transferred after the date of the offense.

If the district court determines in this case that the homestead is properly considered Schleicher’s asset, the court must also exercise its discretion to determine whether the property is liquid or whether liquidation of the asset would pose too great a hardship. Ownership of real property does not automatically disqualify a defendant for court-appointed counsel. See, e.g. United States v. Cohen, 419 F.2d 1124, 1127 (8th Cir.1969) (requiring “full and adequate inquiry” into landowner’s ability to afford counsel). Real property can often be converted into liquid assets or serve as security for an obligation, but some property is highly mortgaged and therefore the owner may not have sufficient available equity to compensate an attorney. ' Moreover, in some situations a court may conclude that liquidating real property imposes too great a hardship on the defendant’s spouse and dependents. See, e.g., Kan. Admin. Regs. 105-4-2(1) (considering as liquid asset only homesteads having a net value greater than $50,000). That, however, will be a case-by-case determination for the district court in the first instance.

In sum, the district court must exercise its discretion to 'determine whether Schleicher has met his burden of establishing that through any combination of liquid assets and current income he would be unable to pay the reasonable costs charged by private counsel for defense of a case of this nature. Minn. R.Crim. P. 5.02, subd. 3. That inquiry requires the court to consider the value of the home despite the transfer for no consideration to Schleicher’s son, and also requires the court to consider whether the value of the home can be converted to a liquid - asset and whether converting the home into a liquid asset would result in a hardship on others. We remand to the district court for this inquiry.

Reversed and writ of mandamus issued.

      . The legislature has provided that a criminal defendant who is "financially unable to obtain counsel” is entitled to representation by the public defender. Minh.Stat. § 611.14 (2000). Minnesota Statutes § 611.17 (2000) requires that each judicial district screen applicants for public defender services, and applicants are required to disclose, among other things, the value of any real property owned.

      . We recognize that in Minnesota the homestead enjoys an exemption from seizure or sale upon legal process on account of any debt, other than a lien for work or materials performed on the homestead. See Minn.Stat. § 510.01 (2000). Protection from creditors is qualitatively distinct from eligibility for public defender services, however. While the legislature can decide as a policy matter to exempt homestead property from debtors, a district court is asked to determine whether an individual property owner is so devoid of resources as to be constitutionally entitled to appointment of counsel.


text:
    Katherine GRIFFIS, Respondent, v. Marianne LUBAN, Petitioner, Appellant.
    No. C3-01-296.
    Supreme Court of Minnesota.
    July 11, 2002.
    Rehearing Denied Aug. 14, 2002.

      Faegre & Benson LLP, John P. Borger, Eric E. Jorstad, C. David Flower, Patricia R. Stembridge, Minneapolis, for Appellant.
    C. Peter Erlinder, St. Paul, Ralph Over-holt, Hopkins for Respondent.
   OPINION

BLATZ, Chief Justice.

Respondent Katherine Griffis brought suit against appellant Marianne Luban in Jefferson County, Alabama, alleging defamation and invasion of privacy arising out of statements made by Luban on the internet. Luban did not appear in the Alabama action, and the Alabama district court entered a default judgment for $25,000 in damages and issued an injunction prohibiting Luban from making certain statements in the future. Griffis filed the Alabama judgment in Ramsey County District Court, and Luban brought a motion to vacate, challenging the jurisdiction of the Alabama court. The Ramsey County District Court upheld personal jurisdiction of the Alabama court over Luban, and the court of appeals affirmed. We reverse.

Respondent Katherine Griffis, an Alabama resident, has taught noncredit courses in ancient Egyptian history and culture at the University of Alabama, Birmingham. Griffis also works as a self-employed consultant. Appellant Marianne Luban, a Minnesota resident, maintains a nonprofessional interest in the history and culture of ancient Egypt. Both Luban and Griffis have participated in an internet newsgroup on archeology, the sci ar-chaeology newsgroup, since at least 1996. A newsgroup is a forum for internet users that addresses a specific topic and allows participants to exchange information and engage in discussions or debate by “posting” messages on the website. The sciar-chaeology newsgroup is public and so messages posted there can be accessed anywhere by any person with internet access.

During the latter part of 1996 a disagreement arose between Luban and Grif-fis relating to the subject of Egypt and Egyptology. In December 1996 Luban posted a message challenging Griffis’s credentials as an Egyptologist, and accusing Griffis of obtaining her degree from a “box of Cracker Jacks.” Griffis states that she responded by citing her credentials in an electronic message sent directly to Luban. The disagreement continued into 1997, with both Luban and Griffis continuing to post messages relating to their disagreement on the sciarchaeology newsgroup. In May 1997, Griffis’s attorney sent a letter to Luban demanding that Luban refrain from attacking Griffis’s character and professional reputation. The letter threatened legal action if Luban did not retract the prior statements and refrain from future attacks. Although Griffis asserts that Luban continued posting defamatory messages after receiving this letter, the record before us does not include any statements made by Luban, whether on the sci. ar-chaeology newsgroup or elsewhere, after March, 1997.

In September 1997, Griffis brought a defamation action against Luban in Alabama state court. Griffis’s complaint alleged that Luban posted statements on the newsgroup asserting that Griffis obtained membership in the International Association of Egyptologists and inclusion on other lists of Egyptologists by misrepresenting her qualifications, that Griffis was a liar, was not affiliated with the University of Alabama, did not have a juris doctor degree, and that Griffis’s consulting business was not legitimate. Because Luban was advised by her attorney that the Alabama state court did not have personal jurisdiction over her, she did not answer the complaint or make any appearance in the Alabama action. On December 17, 1997, the Alabama court entered a default judgment against Luban. The court assessed damages in the amount of $25,000 and also issued an injunction specifically enjoining Luban from publishing certain statements in the future.

On May 5, 1998, Griffis filed the Alabama judgment in Ramsey County District Court in order to enforce its terms against Luban. Luban moved to vacate the judgment on the basis that the Alabama court lacked personal jurisdiction over her. A referee initially granted Luban’s motion, but on reconsideration concluded that the Alabama court had personal jurisdiction over Luban and ordered entry of a Minnesota court judgment against Luban. On appeal, the court of appeals vacated the referee’s order because it had not been confirmed or countersigned by a district court judge. In the interim, Luban petitioned for bankruptcy, and on March 15, 2000, the bankruptcy court discharged the $25,000 judgment from the Alabama court.

In March 2000, Luban renewed her motion in district court to vacate the Alabama judgment, and Griffis filed a cross-motion to enforce the Alabama injunction. The court found that the Alabama district court had personal jurisdiction over Luban and therefore the judgment must be given full faith and credit. Judgment was entered on December 21, 2000. On Luban’s appeal, the court of appeals affirmed, ruling that the district court did not err in its determination that the Alabama court properly exercised personal jurisdiction over Luban. Griffis v. Luban, 633 N.W.2d 548, 553 (Minn.App.2001). The court of appeals concluded that Luban was subject to the Alabama court’s jurisdiction because she made potentially defamatory statements that were being read in Alabama and had knowledge of the effect of those statements in Alabama. Id. Luban sought and was granted review in this court.

The question presented is whether the Ramsey County District Court correctly determined that the Alabama district court had personal jurisdiction over Luban so that the Alabama judgment is entitled to full faith and credit in the Minnesota courts. This court recognizes the right of a' defendant to contest an action brought on the' basis of a foreign court’s judgment by demonstrating that the foreign court rendered the judgment in the absence of personal jurisdiction over the defendant. David M. Rice, Inc. v. Intrex, Inc., 257 N.W.2d 370, 372 (Minn.1977). Such judgments are not entitled to full faith and credit in Minnesota. Uniform Enforcement of Foreign Judgments Acts, Minn.Stat. § 548.27 (2000); Hutson v. Christensen, 295 Minn. 112, 117, 203 N.W.2d 535, 538 (1972). Minnesota courts will uphold a foreign court’s exercise of personal jurisdiction over a nonresident defendant when two requirements are met: (1) compliance with the foreign state’s law providing jurisdiction, and (2) the exercise of jurisdiction under circumstances that do not offend the Due Process Clause of the federal constitution. Intrex, 257 N.W.2d at 372. Whether personal jurisdiction exists is a question of law and therefore our review is. de novo. See V.H. v. Estate of Birnbaum, 543 N.W.2d 649, 653 (Minn.1996); see also Matson v. Matson, 310 N.W.2d 502, 506 (Minn.1981) (applying de novo review to issue of whether foreign judgment entitled to full faith and credit).

For the first requirement, Minnesota courts apply the law of the foreign state, as construed by that state’s courts. See David M. Rice, Inc., 257 N.W.2d at 372. Alabama law extends personal jurisdiction over nonresident defendants to the full extent permitted by due process. Ala. R. Civ. P. 4.2(a)(1)(B); DeSotacho, Inc. v. Valnit Industries, Inc., 350 So.2d 447, 449-50 (Ala.1977). Because Alabama provides jurisdiction as broad as due process will allow, the first requirement is subsumed by the second, and we need only determine whether Alabama’s exercise of personal jurisdiction over Luban was consistent with due process.

The Due Process Clause of the Fourteenth Amendment limits the power of a state court to exercise personal jurisdiction over a nonresident defendant to circumstances where the defendant has “minimum contacts” with the state so that “maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). Where the defendant had “continuous and systematic” contacts with the forum state, the court can exercise “general” jurisdiction over a nonresident defendant for all purposes, even for a claim that is not related to the defendant’s contacts with the forum state. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (quoting Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 445, 72 S.Ct. 413, 96 L.Ed. 485 (1952)). Griffis does not contend that the Alabama courts could exercise general jurisdiction over Luban. Where the nonresident defendant’s contacts with the forum state are not sufficient for general jurisdiction, the defendant may nonetheless be subject to “specific” jurisdiction — that is, jurisdiction over a claim that allegedly arose out of the defendant’s contacts with the forum. Valspar Corp. v. Lukken Color Corp., 495 N.W.2d 408, 411 (Minn.1992). Griffis contends that Luban had sufficient contacts with Alabama, out of which her claims arose, to support the Alabama court’s exercise of specific jurisdiction.

In judging minimum contacts for purposes of assessing the validity of specific jurisdiction, a court focuses on the “relationship among the defendant, the forum, and the litigation.” Helicopteros Nacionales de Colombia, S.A., 466 U.S. at 414-16, 104 S.Ct. 1868 (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977)); West American Ins. Co. v. Westin, Inc., 337 N.W.2d 676, 679 (Minn.1983). For the minimum contacts requirement to be satisfied, the defendant must have “purposefully avail[ed]” herself of the privilege of conducting activities within the jurisdiction. Imo Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998) (quoting and modifying Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)). The defendant’s conduct and connections with the forum state must be such that the defendant “should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). The Supreme Court has explained that specific jurisdiction may be found where the nonresident defendant has “ ‘purposefully directed’ his activities at residents of the forum and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984), and Helicopteros Nacionales de Colombia, S.A., 466 U.S. at 414).

In asserting that the Alabama district court had personal jurisdiction over Lu-ban, Griffis relies in particular, as did the courts below, on Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). In Calder the Supreme Court approved a test that had been employed by the California courts in that case for determining personal jurisdiction over nonresident defendants who allegedly committed an intentional tort outside the forum. Id. at 787 & n. 6, 104 S.Ct. 1482. Rather than focusing only on the defendant’s conduct within or contacts with the forum, the so-called “effects test” approved in Calder allowed long-arm jurisdiction to be based on the effects within the forum of tortious conduct outside the forum. Id.

Calder involved an allegedly libelous National Enquirer article written and edited by the defendants in Florida, but concerning the California activities of a Cali-forma resident. Id. at 784-85, 104 S.Ct. 1482. Although the Enquirer was distributed nationally, it had its largest circulation in California. Id. at 784-85, 104 S.Ct. 1482. Plaintiff was an entertainer whose profession, the Court pointed out, was centered in California. Id. at 788, 104 S.Ct. 1482. She brought suit in California against the Florida-based publication, its distributing company, and the reporter and editor of the article. Id. at 785-86, 104 S.Ct. 1482. The reporter and editor moved to quash service of process for lack of personal jurisdiction. Id. at 785-85, 104 S.Ct. 1482. Although the investigative contacts of one defendant with California, including a visit and several phone calls, were alleged as a basis for jurisdiction, the Court found it unnecessary to consider those direct contacts with the forum. Id. at 786-87 & n. 6, 104 S.Ct. 1482. Instead, the Court held that California had personal jurisdiction over the reporter and editor because their Florida conduct was “expressly aimed” at California, knowing that the harmful effects would be felt primarily there. Id. at 789, 104 S.Ct. 1482. The Court emphasized that the alleged tort was not “mere untargeted negligence.” Id. Under these circumstances, the Court found that defendants “must ‘reasonably anticipate being haled into court’ ” in California for their out-of-state actions. Id. at 790, 104 S.Ct. 1482 (quoting World-Wide Volkswagen Corp., 444 U.S. at 297, 100 S.Ct. 559).

Courts have come to varying conclusions about how broadly the “effects test” approved in Calder can be applied to find jurisdiction. The Seventh Circuit Court of Appeals has construed Calder very broadly, concluding that “the state in which the victim of a tort suffers the injury may entertain a suit against the accused tort-feasor.” Janmark, Inc. v. Reidy, 132 F.3d 1200, 1202 (7th Cir.1997). However, the other federal courts of appeals that have considered the issue have rejected this expansive view that Calder supports specific jurisdiction in a forum state merely because the harmful effects of an intentional tort committed in another jurisdiction are primarily felt in the forum. E.g., Imo Indus., 155 F.3d at 265. Thus, courts have consistently refused to find jurisdiction based on Calder merely because the plaintiff was located in the forum state and therefore felt the effects of the alleged intentional tortious conduct there. E.g., id.; ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 625-26 (4th Cir.1997); Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1080 (10th Cir.1995); Southmark Corp. v. Life Investors Inc., 851 F.2d 763, 773 (5th Cir.1988). Instead, the courts have construed Calder as requiring more than mere effects in the forum state. For example, the Ninth Circuit reasoned that “ ‘something more’ ” than mere effects is needed and found that something more in the “ ‘express aiming’ ” language of Calder. Bancroft & Masters v. Augusta Nat’l, Inc. 223 F.3d 1082, 1087 (9th Cir.2000) (quoting Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1321 (9th Cir.1998); Calder, 465 U.S. at 789, 104 S.Ct. 1482). But the court took a broad view of express aiming by concluding that the requirement is satisfied simply by “wrongful conduct [outside the forum] individually targeting a known forum resident.” Id.

The Eighth Circuit adopted a narrower interpretation of Calder, stating that it was more than “mere effects” that supported the Supreme Court’s holding. Hicklin Eng’g, Inc. v. Aidco, Inc., 959 F.2d 738, 739 (8th Cir.1992). The court found that the Iowa court’s jurisdiction did not extend over a Michigan company that sent allegedly defamatory letters to customers of the Iowa-based plaintiff company. Id. The customers to whom the letters were sent were all located outside of Iowa. Id. The court stated that while the defendant’s statements to the non-Iowa customers were intended to promote the defendant’s product to the detriment of the plaintiffs and therefore might have an adverse effect on the Iowa plaintiff, this effect alone was not sufficient to establish jurisdiction. Id.

Within the spectrum of differing circuit court interpretations of Colder, we believe the most cogent analysis of the Colder effects test is that of the Third Circuit in Imo Industries. In Imo Industries, the circuit court expressed concern over the possible breadth of Colder, asking whether under Colder a court can automatically infer that an out-of-state defendant can anticipate being haled into the forum from the fact that the defendant knew that plaintiff resided in the forum. 155 F.3d at 262-63. After examining how a number of other courts construed Colder, the Third Circuit concluded that the Colder effects test is not satisfied by the “mere allegation that the plaintiff feels the effect of the defendant’s conduct in the forum because the plaintiff is located there.” 155 F.3d at 263. Instead, the court stated that Colder’s holding “cannot be severed from its facts.” 155 F.3d at 261. The court explained that in Colder the Supreme Court relied on three principal findings in reaching its conclusion that the California court properly exercised jurisdiction over the nonresident defendants, and the circuit court incorporated those findings into a three-prong analysis for application of the Colder effects test. 155 F.3d at 261. The test requires the plaintiff to show that: (1) the defendant committed an intentional tort; (2) the plaintiff felt the brunt of the harm caused by that tort in the forum such that the forum state was the focal point of the plaintiffs injury; and (3) the defendant expressly aimed the tortious conduct at the forum such that the forum state was the focal point of the tortious activity. Id. at 265-66. Significantly, the court emphasized that to satisfy the third prong, the plaintiff must show that “the defendant knew that the plaintiff would suffer the brunt of the harm caused by the tortious conduct in the forum, and point to specific activity indicating that the defendant expressly aimed its tortious conduct at the forum.” Id. at 266 (emphasis added).

We, too, are cautious about applying Colder too broadly. Although the Supreme Court has engaged in little further discussion of Colder, in one post-Colder decision the Court did make it clear that foreseeability of effects in the forum is not itself enough to justify long-arm jurisdiction. The Court explained:

[T]he constitutional touchstone remains whether the defendant purposefully established “minimum contacts” in the forum State. International Shoe Co. v. Washington, [326 U.S.] at 316, 66 S.Ct. 154. Although it has been argued that foreseeability of causing injury in another State should be sufficient to establish such contacts there when policy considerations so require, the Court has consistently held that this kind of foreseeability is not a “sufficient benchmark” for exercising personal jurisdiction. World-Wide Volkswagen Corp. v. Woodson, 444 U.S., at 295, 100 S.Ct. 559. Instead, “the foreseeability that is critical to due process analysis ... is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” Id., at 297, 100 S.Ct. 559.

Burger King Corp., 471 U.S. at 474, 105 S.Ct. 2174 (footnote omitted). If foreseeability of injury in the forum is not enough, it follows that something more than defendant’s knowledge that the plaintiff is a resident of the forum and will feel the effects of the tortious conduct there must be necessary to satisfy the effects test. We conclude that something more than mere effects in the forum state is required, and agree with the Third Circuit that the Supreme Court did not “carve out a special intentional torts exception to the traditional specific jurisdiction analysis, so that a plaintiff could always sue in his or her home state.” Imo Indus., 155 F.3d at 265. Broad applications of the effects test, such as those of the Seventh and Ninth Circuits, cast too wide a net and incorrectly disregard the factual underpinnings of the Court’s holding in Colder. We adopt the three-prong analysis articulated by the Third Circuit in Imo Industries, as it properly synthesizes the bases of the Court’s decision in Colder without effecting an overly broad application.

The critical question in this case turns on the third prong, whether the defendant expressly aimed the allegedly tor-tious conduct at the forum such that the forum was the focal point of the tortious activity. As noted above, to satisfy the third prong, the plaintiff must show that “the defendant knew that the plaintiff would suffer the brunt of the harm caused by the tortious conduct in the forum, and point to specific activity indicating that the defendant expressly aimed its tortious conduct at the forum.” Imo Indus., 155 F.3d at 266.

Griffis argues that Luban directed the defamation at the Alabama forum because she targeted her messages at Griffis, whom she knew to be an Alabama resident, and because Luban knew that messages posted on the sciarchaeology newsgroup could be read anywhere in the world and in fact were read by Griffis in Alabama. Griffis further contends that Lu-ban’s defamatory statements had “deleterious effects” on Griffis’s consulting business and her professional reputation in Alabama. The district court agreed with Grif-fis, stating that Luban “never denied that she knew Plaintiff was located in Alabama, and that her allegedly defamatory messages would have an ‘effect’ on Plaintiffs professional career in Alabama.”

While the record supports the conclusion that Luban’s statements were intentionally directed at Griffis, whom she knew to be an Alabama resident, we conclude that the evidence does not demonstrate that Lu-ban’s statements were “expressly aimed” at the state of Alabama. The parties agree that Luban published the allegedly defamatory statements on an internet newsgroup accessible to - the public, but nothing in the record indicates that the statements were targeted at the state of Alabama or at an Alabama audience beyond Griffis herself. The newsgroup on which Luban posted her statements was organized around the subjects of archeology and Egyptology, not Alabama or the University of Alabama academic community. According to Griffis, Luban’s messages were widely read by her colleagues — the other amateur Egyptologists who participated in the sci archaeology newsgroup. But Griffis has not presented evidence that any other person in Alabama read the statements. Nor has she asserted that Alabama has a unique relationship with the field of Egyptology, like the close relationship between the plaintiffs profession and the forum state that the Supreme Court found relevant in Calder. Therefore, even if we assume Luban’s statements were widely read by followers of the sci archaeology newsgroup, the readers most likely would be spread all around the country — maybe even around the world— and not necessarily in the Alabama forum. The fact that messages posted to the newsgroup could have been read in Alabama, just as they could have been read anywhere in the world, cannot suffice to establish Alabama as the focal point of the defendant’s conduct.

To support her assertion that Luban’s statements affected her professional integrity in Alabama, Griffis relies on the message posted by a dean at the University of Alabama. But that message simply verified that Griffis had taught noncredit classes related to ancient Egypt at the University of Alabama’s Department of Special Studies. The statement did not indicate an awareness of Luban’s statements, nor did it indicate that Griffis’s integrity or reputation had been impugned at the University. Significantly, the dean posted the message to another newsgroup because she did not have access to sci ar-chaeology newsgroup on which Luban made her postings. Griffis later copied the Dean’s message onto the sci archaeolo-gy newsgroup. Thus nothing in the factual record before us indicates that Luban’s messages were read by any other person in Alabama, or by anyone in the academic community at the University of Alabama. Griffis also relies on a letter her attorney wrote to Luban threatening litigation to establish that Luban knew her postings would harm Griffis’s consulting business in Alabama. But the letter states only that Luban’s statements were “threatening” Griffis’s business and did not specify any details about the business. Nor does anything in the record establish that Griffis’s consulting business was focused in Alabama, beyond the fact that Griffis herself was located there. Unlike the facts in Calder, where the defamatory article was focused on California activities of a California plaintiff whose professional industry was centralized in California and was carried by a national newspaper with its highest circulation in California, Luban did not “expressly aim” her statements at the state of Alabama such that Alabama was the focal point of the tortious activity.

In sum, we conclude that the record does not demonstrate that Luban expressly aimed her allegedly tortious conduct at the Alabama forum so as to satisfy the third prong of the Imo Industries analysis. The mere fact that Luban knew that Grif-fis resided and worked in Alabama is not sufficient to extend personal jurisdiction over Luban in Alabama, because that knowledge does not demonstrate targeting of Alabama as the focal point of the allegedly defamatory statements. As a result, even if Luban knew or should have known that defamatory statements about Griffis would affect her in her home state of Alabama, that alone is not enough to demonstrate that Alabama was the focal point of Luban’s tortious conduct. Failing this, Griffis cannot rely on Calder to confer personal jurisdiction based on Luban’s allegedly intentional tortious conduct. Because Griffis does not claim any other basis on which the Alabama court could properly extend personal jurisdiction over Luban, the judgment of the Alabama court is not entitled to full faith and credit in Minnesota. The decisions of the courts below enforcing the Alabama judgment are therefore reversed, and the Alabama judgment filed in Ramsey County District Court on May 5, 1998, under the Uniform Enforcement of Foreign Judgments Acts, MinmStat. § 548.27, and the Ramsey County District Court judgment entered on December 21, 2000, based on the Alabama judgment, are vacated.

Reversed and judgments vacated.

GILBERT, J., took no part in the consideration or decision of this case.

      . The injunction prohibited Luban from publishing in any form — including on the internet, world wide web and e-mail — statements asserting or implying that Griffis is a liar, a phony, a con-artist or scam artist, that she has falsified her credentials as an Egyptologist, that she is not affiliated with the University of Alabama, that she does not have a juris doctor degree, and that she is not engaged in a legitimate consulting business.

      . Because all three prongs must be satisfied for jurisdiction to attach, we need address the other two prongs only if this requirement is met.

      . Luban concedes that she knew Griffis lived in Alabama. But this fact alone is insufficient to conclude that Luban expressly aimed her allegedly tortious conduct at the Alabama forum. We look to the record for other evidence that the Alabama forum was the focal point of the defamatory statements. The record contains only two messages posted by Luban on the sci.archaeology newsgroup that identify the Alabama forum in any way. In one, Luban stated Griffis was “from the great state of Alabama.” In another, in response to a message by Griffis signed University of Alabama at Birmingham, Special Studies, Luban asked: "What are special studies and what have you to do with them.” In response, Griffis posted, "Now for the record, I am an instructor with the University of Alabama at Birmingham, Department of Special Studies, and have been for over 17 years.” Luban also acknowledges that she made one phone call to the University of Alabama, in which she asked a receptionist whether Griffis was employed there.

      . In fact, a copy of the website of the consulting business in the district court record identifies Griffis Consulting as “a U.S.-based consulting firm * * * involved in both domestic and international services to business, government, and other organizations.” There is no mention of Alabama on the website, other than an ad from the hosting site.