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Jurisdiction: Building Confidence in a Borderless Medium

July 26-27, 1999
Montreal, Canada

U.S. Judicial Decisions on E Commerce Jurisdiction

Professor John L. Gedid
Widener Law School
Harrisburg, Pennsylvania, U.S.A.


I. Internet Advertising-no phone-passive
  1. Cases holding no jurisdiction for passive web site
    1. No general jurisdiction theory cases
      1. Weber v Jolly Hotels, 977 F.Supp. 327 (D. N.J. 1997).
        1. FACTS: Sale of services. Defendant was Italian hotel that advertised on the Internet. Plaintiff booked a room through a travel agent who was licensed by defendant in New Jersey, and was injured while guest in defendant hotel in Italy.
        2. HELD: corporation's advertising on Internet, without more, could not support jurisdiction under theory of general jurisdiction.
        3. TEST: Is the web site active or passive. Nature and quality of contacts are key to Internet personal jurisdiction cases.
          1. Here entirely passive defendant Internet connection. Defendant merely placed information about its hotels on the Internet as an advertisement, not as a means of conducting business.
        4. COURT RATIONALE: If this rule otherwise, Defendant amenable to suit everywhere in absence of evidence of purposeful availment.
      2. Santana Products, Inc. v. Bobrick Washroom Equipment 14 F. Supp2d. 710 (M.D. PA. 1998)
        1. FACTS: Antitrust conspiracy case in which plaintiff accused defendants of disparagement. Defendant was architectural representative of national company for New York and New Jersey. Forum is Pennsylvania. Allegation is unrelated defendant acts in Pennsylvania.
        2. HELD: Where only contact is passive inclusion on non- interactive web page, no general jurisdiction.
        3. TEST:
          1. Minimum contacts require defendant purposeful availment.
          2. General jurisdiction requires substantial and continuous defendant activities in forum.
        4. COURT ANALYSIS "Passive web page is not sufficient basis upon which to exercise jurisdiction." Court cites national magazine advertisements as the appropriate analogue to passive Internet web page.
      3. Osteotech v. Gensci Regeneration Sciences, Inc. 6 F. Supp.2d 349 (D. N.J. 1998)
        1. FACTS: Defendants were incorporated & principal place of business in Canada & Washington. Plaintiff brought patent infringement action in New Jersey. As part of case, plaintiff alleged an Internet advertisement by defendants "which was easily accessed from everywhere."
        2. HELD: No general jurisdiction because no continuous and systematic contacts with forum
        3. COURT DISCUSSION:
          1. Plaintiff burden of proof for general jurisdiction is to demonstrate that defendant had "significantly" more than bare minimum contacts with forum.
          2. Exercise of general jurisdiction meets due process criteria only when "rigorous" test of defendant continuous and systematic contacts with forum is met.
      4. Ids Life Insurance Company v. Sunamerica, Inc. , 958 F.Supp. 1258 (N.D. Illinois, 1997).
        "Plaintiffs ask this court to hold that any defendant who advertises nationally or on the Internet is subject to its [general] jurisdiction. It cannot plausibly be argued that any defendant who advertises nationally could expect to be haled into court in any state, for a cause of action that does not relate to the advertisements. Such general advertising is not the type of purposeful activity related to the forum that would make the exercise of jurisdiction fair, just or reasonable."
      5. Many other cases have held that it is almost impossible to establish general jurisdiction through use of an Internet advertisement. Digital Equipment v. Altavista Technology, 960 F.Supp. 456 (D. Mass., 1997); Zippo v. Zippo Dot Com, 952 F.Supp. 1119 (W.D. Pa, 1997); Edias Software v. Basis International, 947 F.Supp. 413 (D.C. Az., 1996); Panavision v. Toeppen, 938 F.Supp. 616 (C.D. Cal., 1996).
      6. Only one case has held that general jurisdiction can be established over the Internet, (see Mieczkowski v. Masco Corp below); however, web site was highly interactive.
    2. No specific jurisdiction cases for web site advertisement.
      1. Bensusan v. King, 937 F.Supp. 295 (S.D. N.Y. 1996) affd 126 F.3d 25 (2d Cir. 1997). (caveat: D.C extensive cyberanalysis. On appeal, 2d circuit affirmed solely on basis that New York long arm statute did not intend to reach this type of defendant activity.)
        1. FACTS: King, a Missouri resident, set up a web site called "the Blue Note" to advertise his Missouri jazz club. Bensusan, the New York corporation that owned "The Blue Note" jazz club in New York City, brought suit against King for trademark infringement. Web site had advertisement for defendant's club, a schedule of events, and information on ticket prices and outlets with telephone numbers for the ticket outlets.
        2. TEST: Test Bensusan court used:
          "(1) whether the defendant purposefully availed himself of the benefits of the forum state; (2) whether the defendant's conduct and connection with the forum state *301 are such that he should reasonably anticipate being haled into court there; and (3) whether the defendant carries on a continuous and systematic part of its general business within the forum state." At *300-301.
        3. HELD: Defendant did not meet New York long arm statute requirements and minimum contacts test not met.
        4. TEST: (1) whether the defendant purposefully availed himself of the benefits of the forum state; (2) whether the defendant's conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there; and (3) whether the defendant carries on a continuous and systematic part of its general business within the forum state. At **301.
        5. COURT RATIONALE: No purposeful availment because web site is analogous to placing product into stream of commerce: anyone who finds may have access, but standing alone it is not an act purposely directed or aimed at forum. No contact directed to New York or had any contact or intended to avail of any New York benefit.
      2. Santana Products, Inc. v. Bobrick Washroom equipment 14 F. Supp2d. 710 (M.D. PA. 1998)
        1. FACTS: above under general jurisdiction.
        2. TEST: Due Procedure requires two prong inquiry: sufficient defendant minimum contacts with the forum state (power prong); and does the exercise of personal jurisdiction comport with the notions of fair play and substantial justice (fairness prong).
        3. HELD: no specific jurisdiction here.
        4. TEST APPLIED: An effect in the forum is insufficient to satisfy minimum contacts due process specific jurisdiction test. For effect to be sufficient minimum contact, defendant must have targeted forum. By inference, general web site advertisement does not, even though site can be accessed from forum. (caveat: Court doesn't discuss Internet web site in its analysis of minimum contacts).
      3. Osteotech v. Gensci Regeneration Sciences, Inc. 6 F. Supp.2d 349 (D. N.J. 1998)
        1. FACTS: Defendants were incorporated & principal place of business in Canada & Washington. Plaintiff brought patent infringement action in New Jersey. As part of case, plaintiff alleged an Internet advertisement by defendants "which was easily accessed from everywhere."
        2. TEST for specific jurisdiction: Specific jurisdiction requires court to examine relationship among the defendant, the forum and the cause of action for the purpose of determining whether the defendant had "fair warning" that it could be brought to suit in forum. That fair warning will be presumed if the defendant directed its activities at residents of the forum.
        3. HELD: Advertisements on the Internet are analogous to ads in a national magazine and do not constitute the purposeful availment necessary to establish personal jurisdiction. To hold otherwise would mean worldwide jurisdiction for an advertisement in a magazine or newspaper or web site.
      4. Hearst v. Goldberger , 1997 WL 97097 (S.D.N.Y.).
        1. FACTS: Web site at which the defendant advertised services using name similar to plaintiff 's trademarked name, Esquire. Defendant lawyer lived in N.J. and practiced law in Phil. Defendant proposed to supply legal services virtually using name esqwire.com. He advertised this on home page and solicited for participants to provide the legal services. Stopped before got any further.
          1. Caveat: case decided under N.Y. long arm statute, so appears to involve only construing that act and not due process.
        2. ISSUE: did the Internet activities meet the requirements of New York long arm statute for transacting business? (Extensive analysis of Internet precedents & ideas).
        3. HELD: Passive web site as analogous to advertisement in national publication & thus not sufficient contacts for personal jurisdiction.
        4. COURT DISCUSSION: Because it is viewable by persons in all 50 states, therefore it is not targeted at New York. Such national advertisements are not the transaction of business in New York nor are they solicitation of business.
          1. Court noted (n13) that national advertisement not enough to satisfy due process requirements.
            1. To hold otherwise would allow jurisdiction exercise by any forum in world. That would be a devastating impact.
            2. Connection between downloader and provider is remote & unforeseeable
            3. No purposeful direction by provider aiming at forum. Hearst at *20.
  2. Cases holding jurisdiction for passive web site.
    1. GENERAL JURISDICTION
      1. None.
    2. SPECIFIC JURISDICTION
      1. Inset Systems v. Instruction Set, 937 F.Supp. 161 (D.Conn,1996)
        1. FACTS: Inset of Connecticut marketed computer software and registered the name "INSET" as its trademark. Defendant Massachusetts corporation with offices in Massachusetts obtained the name "INSET.COM"' as its Internet domain address. Court probably didn't know anything about Internet & not clear in facts about how defendant used Internet.
        2. TEST: Acts by which defendant purposely avails self of privilege of acting within forum, thus invoking benefits & protections of forum law. Court examines totality of circumstances in applying this test. Fair play & substantial justice part of test also.
        3. HELD: Passive web site with advertisement sufficient minimum contacts to constitute due process.
        4. COURT DISCUSSION:
          1. Power prong of International Shoe test. Internet is directed at all states; there are 10,000 internet access sites in Connecticut. Internet site not equivalent to national magazine advertisement. Internet advertisement more potent contact than regular advertisement because permanently and continuously available to any Internet user. Therefore purposeful direction at forum and defendant could reasonably anticipate being haled into forum (?/!).
          2. Reasonableness prong of International Shoe test: because travel to Connecticut only two hours from Massachusetts no inconvenience to defendant to come into forum to defend. Also court concluded that forum had interest & adjudication there would be efficient.
      2. Maritz v. Cybergold, 947 F.Supp. 1328 (E.D. MO.1996). Mailing list was interactive: 300 hits, 180 of which were plaintiff.
        1. FACTS: Defendant operated an Internet site in California that allowed users to sign onto a mailing list to receive advertisements. Before site actually began to operate by taking ads and sending them to subscribers, Plaintiff, a Missouri corporation, filed suit claiming trademark infringement and unfair competition. The only contacts with Missouri were 300 hits on the defendant web site, 180 of which were by plaintiff.
        2. TEST: nature and quality of contacts with forum state; quantity of those contacts: relation of the cause of action to contacts; interest of the forum state in providing a forum for its residents; the convenience of the parties.
        3. HELD: there were minimum contacts based on application of the 5 part test.
          1. Nature & quality of contacts
            1. Maintenance of a web site on the Internet is clearly of a different nature and quality than other means of contact with a forum. Major difference: web site seeks to reach all Internet users. Therefore, defendant's contacts are of such a quality and nature that they favor the exercise of personal jurisdiction over defendant.
          2. Quantity of contacts.
            1. 131 hits from forum in one month. Information transmitted clearly intended as a promotion. Therefore, defendant purposefully availing itself of privilege of conducting activities in Missouri.
          3. Contacts and cause of action related.
            1. Injuries that, at least in part, arise out of or relate to CyberGold's web site and the information posted at the web site.
        4. Analysis:
          1. Rationale by which court justifies holding is defendant intent to reach global audience. Rationale also appears to be that commercial Web page, by its very nature, "solicits" business within the forum. Web page to this court per se is the equivalent to "advertising" directed at the forum. Court would find personal jurisdiction in all cases where the only contact with the forum is a Web page.
  • Advertising or web site with other traditional act or acts
    Advertising with phone number.
    1. Web site and Telephone-800 number cases--No Jurisdiction.
      1. Shapiro v. Santa Fe Gaming Corp. No. 97 C 6117, 1998 WL 102677
        1. FACTS: plaintiff sought to recover attorney fees for services rendered against defendant, who maintained web site with toll free number in forum.
        2. HELD: Although Internet law is still rapidly developing, it is well- settled that the operation of a toll-free telephone number and a passive, non- advertising web site, without more, is insufficient to satisfy jurisdiction or venue.
      2. Ragonese v. Rosenfeld 722 A.2d 991 (N.J. Super 1998)
        1. FACTS: Plaintiff purchased airline ticket on Argentinian Airline defendant through travel agency. Ticket not issued. Action for breach of contract. Sale of service case. Only defendant contact with New Jersey was through Alta Vista to web page & 800 telephone number.
        2. ISSUE: Court stated that it believed issue to be whether defendant's Internet page & 800 telephone numbers constituted sufficient contacts with forum under due process.
        3. HELD: No personal jurisdiction over Aerolinas Argentinas
        4. DISCUSSION: Debate is passive v interactive web site. A web site that merely places information on web for interested browsers is not purposeful availment.
          1. On web site no direct solicitation of New Jersey residents, no interactive possibilities, no info aimed at New Jersey residents.
    2. Web site and Magazine ads
      1. INTERNET WEB PAGE PLUS PRINT ADVERTISEMENT--Jurisdiction Proper.
        1. HEROES, INC. v. HEROES FOUNDATION, 958 F.Supp. 1 (D.C. 1996)
          1. FACTS: Trademark infringement case. Defendant operated web site, which contained allegedly infringing advertisement, and also placed an advertisement in Washington Post to solicit funds using allegedly confusing name.
          2. HELD: Use of newspaper advertisement appearing in forum (as distinguished from national magazine) coupled with web site general advertisement constitutes directing activities at forum sufficient for purposeful availment.
          3. DISCUSSION: Advertisement placed specifically in the forum's local newspaper, not in a national newspaper, is purposely directing the advertisement at the forum. Moreover defendant received benefit because donations occurred in response. In this context the web site advertisement is important contact of a continuing basis and contributes to finding that forum can exercise jurisdiction consistent with due process.

    Summary of I & II--policy analysis
    • Analysis of the categories discussed, the features, the applicable law and the problems and needs of the seller and buyer who use the Internet.
      • First, the categories included thus far share certain common features.
        • Passive web site: whether own or 3p, they are essentially advertisements or pass on information over the Internet without interactivity over Internet
          • Consequently Certain features
            • Seller cannot know who will access and from where, at least as to initial hits.
            • For seller Analogous to magazine & newspaper & radio ads, which HELD: in past to be national with out more
          • Supreme Court, in adopting International Shoe, emphasized certain features:
            • Plaintiff need for forum
              • Minimum contacts test recognized that physical presence is not adequate test given modern technology, so test loosened up.
              • But with new minimum contacts test Supreme Court refused to say that plaintiff could simply sue anywhere product found or where any activity of defendant.
            • Instead, Supreme Court Balanced plaintiff need against defendant fairness, activities and notice
              • Actual contacts of defendant with forum
              • Purposeful availment
              • notice
          • Needs of seller
            • To plan: if jurisdiction, can be haled in anywhere
              • Rational planning impossible
              • Unfair to seller argument
          • Needs of b
            • For forum
              • If bring action, then in that situation for sale, either further communication which interactive in nature or goods or service into forum, which changes the equation (see below).
                • Further Communication in connection with sale may lead to basis for specific jurisdiction
                • Entering contract for sale is strong indicator of targeting jurisdiction
                • Sending goods or service converts national into local forum action.
                • So in typical sales case, where plaintiff bringing misrepresentation, breach of contract or breach of warranty action, plaintiff will usually be able to use long arm.
                • Without more, not unfair to plaintiff to deny forum.
          • With distributive chain, as in the hypos, then problem more complex.
            • Stream of commerce cases have held that need more than mere general foreseeablility.
            • Need act by which defendant aims at or targets forum
              • This can occur by use of distribution chain which aimed at forum
              • By marketing aimed at forum.
            • However, Asahi case has held that where distant seller who has merely put into stream of commerce, then without more plaintiff need for forum does not overcome defendant lack of connection with forum.

  • Advertising plus e-mail or other Internet acts or other, non-Internet acts.
    1. CASES HOLDING JURISDICTION PROPER: little interactivity but other traditional contacts as well as web site.
      1. Specific jurisdiction proper. Non Zippo case.
        1. American Network v. Access America, 975 F.Supp. 494 (S.D. N.Y. 1997).
          1. FACTS: Trademark infringement action. Georgia Internet access provider operated web site by which it advertised its services to Internet entrepreneurs and franchisees of Internet access services. Hyperlink led to sales and contract page; service contract was executed online between defendant & its customers. Defendant had 6 New York customers from whom it received $150 per month; this was 0.08% of its sales.
          2. HELD: Exercise of jurisdiction satisfied International Shoe due procedure minimum contacts test.
          3. DISCUSSION: Defendant purposefully availed self of New York benefits by entering agreements or contracts with New York residents and receiving income from them. Defendant also had notice that it might be haled into court in forum by the addresses of its New York subscribers; if it didn't want to defend in forum it should have refused to contract with the forum residents.
      2. Specific jurisdiction proper even though interactivity and other activities not related to cause of action.
        1. Hasbro Inc. v. Clue, Inc. 994 F.Supp. 34 (D. Massachusetts, 1997).
          1. FACTS: Trademark infringement action. Defendant operated a computer-consulting firm, headquartered in Colorado, which maintained a web site advertising defendant services which customers could e-mail. The site used a trademarked name of plaintiff. In three years of existence, defendant had eight customers. Plaintiff, which has many employees and facilities in Massachusetts, filed suit there. Only defendant contact with forum is that one of eight companies for which defendant did consulting work was forum company.
          2. HELD: Defendant purposefully availed itself of the benefits of forum law through interactive web site and serving one customer which was forum corporation.
          3. DISCUSSION:
            1. Posting advertisement on web is like placing it into stream of commerce. Test from Asahi is deliberate availment, so there must be something more than merely placing in stream, and something more must indicate intent or purpose to serve forum.
            2. Here court reasoned that defendant purposely directed its advertising at all the states. "It [defendant] did nothing to avoid Massachusetts"(!/?). It worked in one year for a corporation which was from forum, and that constituted 1/3 to 1/2 of its business that year. It also advertised that it had done business for that forum customer.
        2. Gary Scott International v. Baroudi, 981 F.Supp. 714 (D. Massachusetts, 1997).
          1. FACTS: Trademark infringement action. Defendant operated non-interactive web site with advertisement. Defendant sold 12 items to forum residents and stated at trade show that he intended to sell large number of items to pharmacy, which does business in forum.
          2. HELD: Defendant is subject to jurisdiction of forum. He purposely availed self of benefits of law of forum, so it was foreseeable that he would be haled into forum.
          3. DISCUSSION: "Rather than limiting his business to his home state or region, defendant chose to market and sell his humidors nationwide. In choosing to do so, defendant accepted both the benefits and the risks of nationwide business. One of the risks inherent in defendant's decision to pursue nationwide sales was the possibility that he could be haled into a Court in a foreign state where his humidors were marketed and sold."
      3. Specific jurisdiction proper as result of interactive web site: the Zippo case and its successors.
        1. ZIPPO MANUFACTURING COMPANY v. ZIPPO DOT COM, 952 F.Supp. 1119 (W.D. Pa.1997).
          1. FACTS: Zippo cigarette lighter Pennsylvania manufacturer brought trademark infringement action against California Internet news service company that used domain name of Zippo.com. Defendant web site had advertisement & application which could be filled out to subscribe to various levels of news service. Application processed, credit card submitted & credit approved, then password assigned to subscriber. Defendant had contracts with seven Internet providers in Pennsylvania and had electronically entered into subscription agreements with 3000 forum residents.
          2. HELD: Jurisdiction could be exercised by Pennsylvania forum; defendant had purposefully availed self of benefits of Pennsylvania law & economy.
          3. TEST: In Internet case, the International Shoe test is applied according to a "sliding scale" which measures the degree of interactivity of web site.

            Three levels:

            1. Passive web site:
              1. Merely distributes information
              2. exercise of jurisdiction inconsistent with due process.
            2. Intermediate web site: depending on level of activity & commercial nature of web site, exercise of jurisdiction may be consistent with International Shoe.
              1. Definition of this category: interactivity: host and user can exchange information.
              2. Individual factual inquiry and ad hoc evaluation in each case.
              3. Draws major distinction between seller of goods or services and consumer: with consumer fundamentally different approach and serious problems with exercise of jurisdiction (See Pres-Cap case below cited in this opinion). Same concerns not applicable to seller.
              4. OBSERVE: court applies a totality of circumstances test: examines and weighs Internet and other contacts together in analysis.
            3. Defendant conducts business over Internet.
              1. Defendant enters contracts over the Internet and/or engages in knowing & repeated transmission of computer files over Internet.
              2. Forum exercise of jurisdiction consistent with International Shoe.
            4. RATIONALE: (for intermediate and conducting business categories);
              1. Nature & quantity of defendant Internet activity are crucial activity to reveal purposeful availment of benefits of forum or not.
          4. DISCUSSION and APPLICATION:
            1. This is a category three "doing business" case: defendant clearly conducted electronic commerce with forum residents.
              1. Defendant entered contracts with 3000 forum subscribers to Internet news service.
              2. Defendant issued passwords for those 3000 subscribers aimed at use of Internet directed into forum.
              3. Defendant entered contracts with seven providers of Internet access in forum to provide service to forum residents.
            2. This level of interactivity satisfied due process power requirements:
              1. Defendant was purposely availing self of law and economic benefits of forum.
              2. Defendant as reasonable person would anticipate being haled into court in forum for this degree of activity.
              3. Defendant targeted or directed sale of service activities at forum.
              4. Court explains how the contacts are not "fortuitous" in sense of World Wide Volkswagen case:
                1. World Wide Volkswagen case involved travel by customer into distant state and defendant had not knowledge of where or when travel would occur-no foreseeability of particular forum.
                2. Here: defendant "repeatedly and consciously" made choice of processing Pennsylvania applications.
                  1. As defendant knew result was transmission of e messages into forum.
                  2. Conscious choice of defendant to conduct business with residents of forum gives it notice that it is subject to suit there.
              5. In reply to defendant argument that minimal percentage of business with forum (2% of subscribers), court explains amount or degree of activity that suffices for Internet- based exercise of jurisdiction:
                1. McGee case established that even a single contact could be sufficient to establish minimum contacts.
                2. Test is not quantity of contacts, but rather "nature and quality" of forum contacts and consciousness and deliberateness of contacts is important factor.
            3. This level of activity satisfied reasonableness prong of International Shoe test:
              1. Forum has "strong" interest in adjudication of dispute involving resident corporation.
              2. Plaintiff has chosen Pennsylvania as forum, and that decision merits some weight.
              3. These interests outweigh the burden on the defendant.
      4. CASES EXPLAINED BY OR APPLYING ZIPPO
        1. CASES HOLDING SPECIFIC JURISDICTION PROPER.
          1. Compuserve v. Patterson, 89 F.3d 1257 (6th Cir, 1996).
            1. FACTS: Defendant was plaintiff subscriber for Internet service & distribution of shareware. Plaintiff entered Internet contract with defendant which recited contract performance in forum and choice of law was forum law. Plaintiff allowed other subscribers to download defendant shareware; 12 were from forum. Plaintiff began to use similar name for some of its software. Defendant objected on basis of trademark infringement. Plaintiff brought declaratory judgement action in forum.
            2. TEST: Defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. The cause of action must arise from the defendant's activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum to make the exercise of jurisdiction over the defendant reasonable.
            3. HELD: Here, contacts were sufficient to satisfy due process.
            4. DISCUSSION:
              1. Purposeful availment: action of defendant created connection with forum. Contract with plaintiff gave notice that Ohio forum. After that notice, repeated transactions which were commercial in nature. Defendant was not mere consumer of Internet service provided by plaintiff; he was 3rd party provider of software using plaintiff to distribute. Crucial fact for satisfaction of this criterion: defendant relationship with plaintiff to electronically advertise and market with notice of forum connection.
              2. Contacts sufficiently substantial: quality, not quantity, of contacts is what is significant. Court analogizes to case in which license to distribute in Forum State and contemplation of ongoing marketing in forum state contemplated by defendant.
                1. In addition, defendant contacts after alleged infringement were weighed: defendant made demand by communication to Ohio plaintiff.
            5. OBSERVE: Zippo court considered this Compuserve case as a prime example of category 3 of the sliding scale, doing business, as a result of entering contracts with plaintiff and "knowing and repeated" transmission of computer files to plaintiff.
          2. Vitullo v. Velocity Powerboats, 998 WL 246152 (N.D.Ill.)
            1. FACTS: Defendant is Florida manufacturer of powerboats who sold to intermediary dealer in Michigan, who sold to plaintiffs in Illinois. One plaintiff killed & other injured when boat broke apart. Defendant maintains Internet site that has e mail capability, customer information form, and ability to notify customer of boat shows of defendant products in plaintiff locale. Defendant has also engaged in national advertising in magazines, and occasionally buys parts in forum.
            2. TEST: Court adopts Zippo sliding scale test because it examines actual nature of contacts in case before the court and therefore does not eviscerate the International Shoe due process test.
            3. HELD: Defendant subject to forum jurisdiction because it targeted forum state.
            4. TEST APPLIED:
              1. This is Zippo middle category case because, although cannot complete or conduct sales over Internet, it does enable e-conversations between defendant & customers.
              2. Web site had explicit solicitation for forum residents to attend Chicago boat show. That was affirmative step to target forum. Also they sold to dealer who they know sold in forum. So there is placing in stream of commerce and the Internet supplies the "something more" that Justice O'Connor explained was necessary in Asahi stream of commerce plurality opinion.
          3. Thompson v. Handa-Lopez, 998 F.Supp. 738 (W.D. Tex. 1998).
            1. FACTS: California corporation operated Internet site on which gambling conducted. Gamblers enter e-contract with defendant, purchase game tokens with credit card, then gamble in defendant's "Internet arcade." E-contract that plaintiff entered had arbitration clause which provided California law would apply, and which laid venue exclusively in California. Plaintiff, from Texas visited defendants web site, purchased game tokens, then gambled and won tokens, that according to defendant rules, should have entitled him to almost $200,000 in winnings. Defendant refused to pay. Action on breach of contract, fraud & violation Texas deceptive trade practices statute.
            2. HELD: Court adopts Zippo sliding scale. This is a sliding scale class 3 case: defendant continuously conducted business over Internet with Texas residents.
            3. DISCUSSION:
              1. Power prong of International Shoe minimum contacts analysis met because defendant "continuously interacted" with Texas residents by: exchanging information with plaintiffs, entering contracts with Texas residents, and sending winnings to Texas for commercial gain.
              2. Reasonableness prong met: in spite of arbitration and forum selection clause in contract, Texas has strong interest in resolving dispute involving its citizens from fraud & deceptive practices; & "due regard must be given to plaintiff choice to seek relief in Texas. These two outweigh inconvenience to defendant.
          4. Blumenthal v. Drudge and AOL 992 F. Supp. 44, (D.C. 1998)
            1. FACTS: White House employees sued plaintiff columnist and on-line provider for defamation. Defendant, a California resident, operated e magazine gossip column. Defendant operated hyperlinks and had e subscribers to whom he sent e magazine. Defendant entered license agreement with AOL that defendant report to be available to all AOL subscribers. Defendant defamed plaintiffs. Action brought in D.C.
            2. HELD: (After AOL dismissed on basis of Communications Decency Act), under Zippo sliding scale, court appears to hold that this is category 3--transacting business--case with non internet contacts which together make exercise of jurisdiction proper.
            3. DISCUSSION:
              1. Maintenance of an interactive web site, which can be continuously accessed by forum residents, plus other non Internet contacts which target forum is sufficient for exercise of forum jurisdiction.
              2. Here, subscriptions and constant exchange of email make this "epitome" of interactivity. Focus of report is the forum: Washington D.C. inside the beltway gossip is all that defendant writes about. E solicitation of contributions from Washington D.C., also.
              3. Here, non-Internet contacts: C Span interview and several visits to Washington D.C.
              4. [Caveat: court was construing long arm statute in most of opinion, and merely added that, because long arm doing business and persistent solicitation had occurred along with other non Internet plus factors, due process was also satisfied.]
          5. GTE New Media Services, Inc. v. Ameritech Corp., 21 F. Supp. 2d 27 (D.C. 1998)
            1. FACTS: Action under Clayton Antitrust Act for alleged anti competitive injuries in monopolizing Yellow Pages. Argument was conspiracy to monopolize Internet access points for Yellow Pages service. Plaintiff GTE operated a Yellow Pages Internet directory; defendant regional bell companies operated Yellow Pages Internet sites.
            2. CAVEAT: [Court analyzes whether case meets Washington D.C. long arm statute; concludes that Internet contacts are interactive, continuous and commercial for purposes of that statute; court then simply states that analysis on interactivity, continuity and commercial nature satisfy due process test for long arm jurisdiction].
            3. HELD: Forum exercise of jurisdiction over defendants was consistent with due process.
            4. DISCUSSION:
              1. Court used Zippo sliding scale that focuses on interactivity and commercial nature & quality of defendant contacts with forum.
              2. For interactivity: defendant web sites seek exchange of information with subscribers to find telephone listing. That exchange is interactive for purposes of due process.
              3. Defendants' selling advertisements that generated a high volume of revenue for their Yellow Pages was highly commercial for due process purposes. Also, there was chanelling of subscribers into Washington D.C. Yellow Pages, which generate a higher volume of advertising revenue, was commercial.
              4. Nature of defendant acts is economic benefit purposely availed in by defendants; purposeful availment of forum.
          6. Park Inns International v. Pacific Plaza Hotels, 5 F.Supp.2d 762 (D. Arizona, 1998).
            1. FACTS: Trademark infringement suit. Defendant maintained web site on which customers could make, amend and cancel reservations, and there was evidence that a number of forum-resident customers had booked and stayed at the defendant's hotels as result of web site reservations.
            2. HELD: Following Cybersell, which follows Zippo, web site is interactive; this is a Class 3 interactivity case, in which business was transacted over web site between customers and operator.
            3. DISCUSSION:
              1. Solicitation of business in forum, which results in business transaction, is purposeful availment.
          7. International Star v. Bowman Haight, 1999 WL 300285 (N.D.Ill.).
            1. FACTS: Trademark infringement action. Defendant conducted business through web site at which customer could purchase service and pay for it. Defendant also used telephone to conduct business. 22 hits in forum.
            2. HELD: Exercise of jurisdiction proper on Zippo "plus" basis.
            3. DISCUSSION: This was a Zippo category 3 case: business was transacted over the Internet.
              • Court notes recent cases have used Zippo approach for Internet contacts and also used non-Internet contacts with it, regardless of whether non-Internet contacts were related to claim.
        2. CASES HOLDING SPECIFIC JURISDICTION NOT PROPER.
          1. Cybersell case
            1. FACTS: Cybersell AZ was web services marketing firm with registered trademark. Cybersell FL was small business providing business consulting services for web marketing. Cybersell FL used a web page with a hyperlink to allow the viewer to e-mail messages back to the company.
            2. GENERAL INTERNATIONAL SHOE TEST of court: 1. Nonresident defendant act or transaction involving forum by which he purposefully avails himself of the privilege of conducting activities in the forum which invokes the benefits and protections or forum law; 2. claim arises out of or results from the defendant's forum-related activities; and 3. exercise of jurisdiction reasonable.
            3. SPECIFIC INTERNET JURISDICTION TEST. Level of interactivity. Precedents that exist have used level of interactivity and commercial nature of the exchange of information that occurs on the Web site in deciding if sufficient contacts exist to warrant the exercise of jurisdiction.
            4. HELD: no purposeful availment. Mere advertisement not enough; "something more" required for purposeful availment.
              1. No defendant commercial activity in forum. Defendant's posting passive; posting alone doesn't create deliberate activity in a forum.
              2. No forum resident had signed up for defendant web services; no e-mail messages or other Internet communications; no contracts, sales, phone calls or income from forum.
              3. Defendant didn't target forum
                1. Defendant didn't direct activity to forum;
                2. Defendant didn't encourage forum residents to access web site.
                3. No hits from forum.
          2. Millennium Enterprises, Inc. v. Millennium Music, LP, 1999 WL 27060 (D. Or. 1999) . [Major new case with informed analysis of Internet International Shoe due process test].
            1. FACTS: Copyright infringement case. Defendant maintained web site that was interactive: customers could purchase CD's, request franchise information and join a discount CD club at web site. Only other contact with forum was single (probably feigned) purchase of CD by forum resident from defendant over Internet at request of plaintiff lawyer.
            2. HELD: Court will follow Zippo and Bensusan precedents, because they correctly apply International Shoe principles to Internet contacts. Here, no jurisdiction because no actual interaction occurred.
            3. DISCUSSION:
              • Under Zippo test, passive web site not sufficient for forum exercise of jurisdiction. Those cases involving passive web site in past have involved, in addition to Internet contacts, other traditional contacts.
              • Third, "doing business," category for interactive sites is also consistent with International Shoe requirements.
              • Middle Zippo category here reviewed. Review reveals 3 classes of case
                1. Sites with advertising and the potential for interactivity. Majority of cases have held that there must be actual interaction between web site operator & users.
                2. Interactive web site plus non-Internet contacts. At least 2 approaches
                  1. "Totality of Contacts" approach. Problem: lumps non-Internet contacts which have no relation to cause of action together with Internet contacts which do.
                  2. Mieczkowski case: traditional sales plus interactive Internet web site is sufficient for general jurisdiction.
                3. Interactive web site plus related contacts.
                  1. Transacting business by solicitation over interactive web site at which hotel customers from forum made amended and cancelled reservations met Zippo test.
                  2. Interactive web site by which contracts executed electronically met Zippo test.
            4. ZIPPO TEST APPLIED & REFINED.
              1. This is middle category Zippo case. Here jurisdiction cannot be applied, and the Zippo test needs refinement which court makes.
                • Here level of potential interactivity, while not necessarily high, is not insubstantial. Potential exchange of information also commercial in nature. But "[T]he court finds that the middle interactive category of Internet contacts as described in Zippo needs further refinement to include the fundamental requirement of personal jurisdiction: "deliberate action" within the forum state in the form of transactions between the defendant and residents of the forum or conduct of the defendant purposefully directed at residents of the forum state. Ninth Circuit requires "something more" than mere advertisement on Internet and these deliberate transactions within forum are what circuit meant.
          3. CFOs2 GO, Inc. v. CFOs to Go, Inc. 1998 WL 320821 (N.D.Cal.)
            1. FACTS: Trademark infringement action. Defendant set up web site on the Internet that advertised its services. Defendant also maintained email addresses for communication over the Internet. However, the web site was a test.
            2. TEST: International Shoe test for minimum contacts based on Internet site are sliding scale in which likelihood of long arm jurisdiction exercise is directly proportionate to the nature & qualities of commercial activities that defendant conducts over Internet. This approach is to answer question of whether defendant purposefully availed self of benefits & protections of forum law
            3. HELD: Like Cybersell, this case is primarily one where only advertisement placed on defendant web site. Defendant web site had only contact information; there were no hits from forum that were unconnected to this litigation; and the web site was a test that was never up and running.
          4. Origin Instruments v. Adaptive Computer Systems 1999 WL 76794 (N.D.Tex.)
            1. FACTS: Trademark infringement action. Defendant maintains web site on which users can obtain product information, use a hyperlink to download a product purchase program, and communicate via e-mail with defendant. However, no evidence that there were any hits from forum, or that any forum user had ever done any interactive act at defendant web site.
            2. HELD: Although Defendant's web site is an interactive site that falls into Zippo middle category, level of interactivity is moderate and no evidence of any forum hits or interactivity.
            3. DISCUSSION: With middle category, court must analyze level of interactivity and actual actions of defendant & users.
              • Here no evidence of any interaction of defendant with anyone from forum.
              • Evidence shows no sales to anyone from forum.
              • Mere possibility that a defendant may be able to do business with forum residents should not be premise for exercise of forum jurisdiction. Such mere possibility does not establish that Defendant purposefully availed itself of the benefits of the forum state and its laws.
              • With this interactive Internet web site there was possibility, but not actuality, of purposeful availment interactivity. For due process requirements to be satisfied, "something more" (that is not Internet related) must have occurred which, when combined with web site, shows purposeful availment. That "something more" is not present in this case.
          5. SF Hotel Company v. Energy Investments, 985 F.Supp. 1032 (D. Kansas, 1997)
            1. FACTS: Trademark infringement action. Defendant operated web site which contained general advertisement.
            2. HELD: This is Zippo class one passive web site case. No jurisdiction.
          6. Pheasant Run, Inc., v. Moyse No. 98 C 4202, 1999 WL 58562 (N.D. Ill. February 3, 1999)
            1. FACTS: Trademark infringement. Plaintiff was country club from Illinois. Defendant advertised its restaurant in Ohio on web site with telephone number.
            2. HELD: This was essentially passive web site: advertisement plus telephone number. Under Sliding Scale test something more than mere posting of advertisement is necessary to support exercise of forum jurisdiction
            3. RATIONALE: In absence of interactivity under Zippo test, "something more" than advertisement must indicate that defendant purposefully directed activity toward forum.
          7. Patriot Systems, Inc v. C-Cubed Corporation, 21 F. Supp. 1318 (D. Utah 1998)
            1. FACTS: Copyright infringement action. Plaintiff incorporated in Utah; defendant in Virginia. Defendant ran advertisements on Internet.
            2. HELD: Zippo sliding scale requires more interactivity than mere advertisement. This is a class 1 sliding scale case: a mere passive web site.
          8. Scherr v. Abrahams, No. 97 C5453, 198 WL 299678, (N.D. Ill. 1998).
            1. FACTS: Plaintiff was magazine publisher; Defendant, a former employee, left & started magazine that allegedly infringed trademark, committed fraud & slander. Defendant maintained web site on which subscribers could receive an electronic copy of defendant magazine by transmitting their Internet address.
            2. HELD: Forum could not exercise jurisdiction because level of interactivity low & no targeting of forum.
            3. DISCUSSION: This is case in which users can access, then place email addresses on web site and receive an email copy of defendant publication. Thus, interactive under Zippo test.
              • "No money is exchanged. The only commercial information in the mini-AIR is advertisements for the AIR and other products of Improbable Research. Moreover, nothing on the Internet site is specifically targeted at Illinois consumers."
              • Caveat: this case appears to contradict other cases that apply Zippo test: contacts here are commercial in that advertisements in e magazine presumably produces revenue for defendant and user see the ads; and there is substantial interactivity (though court characterizes as "low" interactivity) involving actual distribution of magazine.
          9. Transcraft v. Doonan Trailer, 1997 WL 733905 (N.D.Ill.)
            1. FACTS: Trademark infringement action by Illinois manufacturer against Kansas's manufacturer. Defendant operated Internet site that gave local dealers names and phone numbers and email for sales information. Plaintiff also alleged that the trailers came into Illinois.
            2. HELD: Exercise of long arm jurisdiction not proper on application of Zippo categories modified by Hasbro.
            3. DISCUSSION: Generally, Zippo passive category (advertising) or middle category (interactive, but not clearly transacting business over Internet) are supplemented or modified by Asahi stream of commerce test: if advertising intends to draw residents of forum or targets forum, then jurisdiction proper.
              1. Applied here: where customer can exchange information with web site, test is level of interactivity and commercial nature. Using Hasbro stream of commerce analogy, no evidence that defendant used web site to encourage contact by Illinois residents; advertisements were national ones. No evidence of any Illinois contacts or hits.
          10. Smith v. Hobby Lobby v. Boto, 968 F.Supp. 1356 (W.D. Ark. 1997).
            1. FACTS: In the Smith case, the plaintiff's decedent was burned to death in a fire allegedly caused by a defect in an artificial Christmas tree, manufactured by defendant from Hong Kong. The defendant sold to large independent distributors fob Hong Kong. The distributors sold in the United States to various retailers. The defendant was also included in an advertisement on the Internet posted by its trade association. Plaintiff filed a wrongful death suit in federal district court in Arkansas. Defendant objected to the exercise of long arm jurisdiction.
            2. HELD: With these contacts federal district court could not exercise long arm jurisdiction.
            3. DISCUSSION
              [Interesting discussion/analysis of stream of commerce theory].
              • Stream of commerce is analytical tool for dealing with cases in which defendant has established distribution network in forum.
                • Defendant did not establish network here, but merely sold to national distributors.
              • The World Wide Volkswagen case established the requirements for stream of commerce cases. Use of distributors and Internet is stream of commerce case. Stream of commerce is a sub type of specific jurisdiction case.
                • Under World Wide Volkswagen test knowledge that goods reach forum is not sufficient for exercise of long arm jurisdiction.
                • More than knowledge that goods reach forum is necessary. Purposeful availment requires additional conduct of defendant that indicates intent or purpose to serve market in forum state.
                  • Sale to national distributors who sell without direction or input from defendant is not sufficient additional conduct to establish purposeful availment.
                • Defendant Internet advertisement in trade journal on Internet not sufficient contact under Zippo and Compuserve cases.
                  • Compuserve, though it held that the defendant could be haled into Ohio, carefully limited reach of holding to preserve idea from World Wide Volkswagen and Asahi cases that the defendant "to structure their primary conduct with some minimum assurance as to where the conduct will and will not render them liable to suit." (CompuServe, 89 F.3d at *1262).
                  • Applying Zippo sliding scale, court held that here there was only advertisement, and not any sale or contract for goods or services by defendant to forum resident. Therefore, the contact is insufficient.
        3. CASES HOLDING GENERAL JURISDICTION PROPER
          1. Mieczkowski v. Masco Corp., 997 F. Supp. 782 (E.D. Texas 1998).
            1. FACTS: Wrongful death action by North Carolina Plaintiffs v Texas defendant. Plaintiffs' son was killed by a bunk bed manufactured by defendant in North Carolina. Bed had been purchased by other private individuals in Washington D.C. for use in a residence in Virginia, then sold to the Plaintiffs in North Carolina. Plaintiffs then moved to Texas. Son of Plaintiffs hung himself there while attempting to climb down from the top bunk. Plaintiffs brought an action in Texas against the defendant, which had its plant in North Carolina. The contacts on which the plaintiffs relied were: several million dollars in sales in Texas that amounted to 3.7% of defendant total sales: defendant web site; defendant purchase of 2% of its materials from a Texas supplier; a direct mailing to all persons who had purchased from defendant in the past twice each year. At the defendant's web site customers could: 1. Browse through a section which displayed pictures, construction and prices of furniture for sale; 2. Customers could fill out an order form; 3. Customers could check the status of their orders; 4. Customers could communicate via email through the web site with defendant representatives.
            2. HELD: Combination of non-Internet and Internet contacts were sufficient to support exercise of general jurisdiction.
            3. DISCUSSION:
              1. No specific jurisdiction because could not satisfy World Wide Volkswagen stream of commerce specific jurisdiction test: that defendant must have been able to foresee that goods would make their way into Texas.
              2. Court used Zippo sliding scale test for general jurisdiction here.
                1. General jurisdiction test: continuous and systematic defendant contacts with forum and a greater amount of contact than would be necessary for specific jurisdiction.
                2. This was a second category or middle category Zippo test: contacts were more than passive, but not wholly interactive. Court considered non-Internet and Internet contacts in their totality.
                3. Internet contacts: interactive because defendant responded "indiscriminately" to all inquiries; customers could shop, including placing order and paying for it electronically at defendant web site. Customers could also track status of orders and communicate with defendant personnel.
                4. Nature of interactivity like Maritz case: constant exchange of information and all inquiries indiscriminately responded to.
                5. Combination of non-Internet and Internet contacts satisfies due process test: nature and quantity of defendant contacts were such that defendant should have realized that could be haled into Texas.
              3. Reasonableness prong of test: court argued that forum courtroom gave one place for plaintiffs and all defendants to come in and settle controversy; that burden on defendant was not very great to defend in Texas; and that Texas has "strong" interest in protecting citizens from defective products.
        4. CASES HOLDING GENERAL JURISDICTION NOT PROPER.
          1. Millennium Enterprises, Inc. v. Millennium Music, LP No. 98-1058, 1999 WL 27060 (D. Or. January 4, 1999).
            1. FACTS: See no specific jurisdiction Zippo cases above.
            2. HELD: General jurisdiction requires systematic and continuous contacts. Purchase of single CD and maintenance of web site are not sufficient. Precedents have so held; and Mieczkowski case involved Internet plus traditional non-Internet contacts
          2. Grutkowski v. Steamboat Lake Guides & Outfitters, Inc., 1998 WL 962042 (E.D. Pa. December 28, 1998).
          3. ESAB Group, Inc. v. Centricut, LLC, 1999 WL 27514 (D.S.C. Jan. 15, 1999)
        5. CASES THAT REJECT ZIPPO ANALYSIS
          1. Telco Communications v. An Apple a Day, 977 F.Supp. 404 (E.D. Virginia, 1997).
            1. FACTS: Action for defamation and tortious interference with contract. Defendant made harmful statements on web site, which could be accessed by forum residents.
            2. HELD: Inset approach (supra) adopted: mere passive web site is sufficient for exercise of jurisdiction.
            3. DISCUSSION:
              • Advertising and soliciting over the Internet are doing business under long arm statute of forum, so defendants were doing business over Internet. If forum resident saw advertisement and called, defendants would have taken call.
              • Posting a web site is a persistent course of conduct, and two or three press releases rises to regularly doing or soliciting business.
              • Court argues this result is consistent with due process because defendant should have realized that it could be haled into court in forum: defendants should have known that their statements would be disseminated in forum, and they knew that plaintiff was headquartered there.
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