Thursday, June 29, 2006

Time's a wastin'

Dear Committee Members:

The Cyberspace Law Committee will have an interesting but abbreviated schedule of events in Hawaii. We will be presenting one program for the Business Law Section -- Transacting Business via the Internet in Asia-Pacific Rim (co-sponsored with the UCC Committee and the International Business Committee) co-sponsoring a program with the Science and Technology Section about VoIP, and holding two expanded and dynamic Committee meetings in lieu of our typical schedule of separate Subcommittee and Working Group meetings. Both Committee meetings will include substantitve discussions.

Reservation deadlines for Hawaii are approaching. If you are still on the fence, I encourage you to make the trip. Also, if you are planning to attend and have not yet purchased tickets for Business Law Section events, please check them out. The deadline to purchase advance tickets for the Business Law Section Brunch and Dinner is this Thursday, June 29.

The Cyberspace Law Committee will not be holding a separate Committee dinner this year. I'll look forward to seeing you at the Section events instead.

Candace Jones
Chair, Cyberspace Law Committee

Wednesday, June 14, 2006

Dropdown and Give Me Twenty Two!

The USDC in Washington has just issued a decision on specific personal jurisdiction over a Web site operator. In running through the typical analysis of how much the defendant aimed its activity at the forum state, the court held that the operator's site "was expressly aimed at Washington in that the website lists Washington as an available shipping location and Defendant intentionally shipped its product into this state . . .."

This after noting that only three of the plush dolls at issue had been shipped to Washington, out of the 22 total states where the Michigan-based defendant had sold its products. (Arguably, the three shipments alone might have tipped the balance, but I think some courts would have had a tough time with that as the only factor.)

So, a convenience offered to users of web sites that is not offered to people who fill-in little coupons out of a magazine suddenly subjects the retailer to jurisdiction. Who knew the Web was going to be so dangerous?

It seems unlikely that the vendor who probably sold the off-the-shelf shopping cart system to the defendant here took the time to note that including any particular state in the drop-down list was going to subject the defendant to the personal jurisdiction of every state in that list. It also seems a bit of a stretch to fathom the defendant's intent out of what was probably nothing more than a choice made by the shopping cart operator (who was merely following the standard practice for all shopping carts). Should we now be counseling our clients that they should not present a dropdown list of states to anybody? Or, is the convenience to the site's customers worth the risk (but the lawyers to the site need to counsel on the risk in any event)? Should shopping cart developers provide a functionality in their software to allow site operator to delete certain states from the list? Should the site operator bring a claim against the shopping cart vendor for a design defect? (Just kidding on that last one...) (Sort of...)

Second practice note: Keep in mind that this is not a case where a click-through choice of law/venue provision would have made a difference, since the plaintiff was not itself a customer of the defendant's site nor subject to any contract between it and the defendant. We can't always rely on those contracts to save us from all possible exposure to out-of-state litigation!

Case is Qwest Communications Int., Inc. v. Sonny Corp. (USDC WD Wash NO. C06-20P, May 15, 2006). Reported in the June 15 issue of BNA Electronic Commerce Reporter.