Wednesday, May 09, 2007

Zippo Zinged Without Reazon

I don't know why this keeps happening, but yet another court has misstated the holding of the famous Zippo sliding-scale of interactivity case (Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F Supp 1119 (USDC WDPA 1997). (It isn't entirely clear to me if the confusion arose from the litigants, so I'll reserve my right to re-aim my ire.)

Once again, just so we can get this straight: Zippo is a SPECIFIC JURISDICTION holding. Its author went out of his way to say that the sliding-scale test had no application to GENERAL JURISDICTION.

In Howard v. Missouri Bone and Joint Center, Inc. 2007 ILRWeb (P&F) 1675 [Ill App Ct, 2007], the court went out of its way to reject the Zippo test, saying it had no application to the matter at bar (and that web sites, interactive or not, should be viewed as nothing different than advertising, essentially stating that interactivity is irrelevant to the question of jurisdiction). However, all of the parties were in agreement that the web site in question could only apply for jurisdictional purposes as a matter of GENERAL JURISDICTION. The Zippo rule has no application to claims of general jurisdiction.

There was no need for the court to reject Zippo. It need merely have pointed out to counsel that their cite to Zippo in support of their argument for general jurisdiction was clearly misplaced. Having said that, it does make sense to this author, when doing a general jurisdiction analysis, to view web sites as nothing more than another form of advertising. But, there is plenty to commend the interactivity sliding-scale test when looking for specific jurisdiction -- Jurisdiction arising out of a litigated matter that occurred via that particular interactive web site. (I'm not saying it's necessarily perfect... But, it's certainly better, when used in the right circumstances, than this court seems to allow it.)


Anonymous said...

While you are clearly correct in saying that zippo was a specific jurisdiction case (all you have to do is read the case), can you explain why Zippo Mfg did not try to pursue a claim of general jurisdiction. The business Dot com was doing in PA would have qualified as continuous and systematic, no?

Michael Fleming said...

I can only surmise that since specific was good enough for their immediate purposes that Zippo Mfg would not have bothered with the pursuit of general. That said, one usually pleads general and has specific in one's back pocket.

On the other hand, put yourself back in 1997, and the still unfamiliar context of a web-only business. I'm not sure that a judge would have necessarily agreed, at that time at least, as to how to characterize the dot-com business' presence.

In other words, I don't know! Sounds like a project for some student to go look up the briefs, no?