Exam No.  ________ Time:  _____

Dean Henry H. Perritt, Jr.                                                                                      Spring, 2001

Conflict of Laws                                                                                                   

Chicago-Kent College of Law

Final Examination in conflict of LawS

Instructions

1.                  This examination consists of 3 pages.  Please check to make certain you have the complete examination.

2.                  Read these instructions carefully and read each question carefully.  Think each problem through before you write and treat every appropriate issue in each question.  Be direct and concise.

3.                  Answers will be graded upon the reasons given as well as the conclusions drawn.  If more than one reason is pertinent to an answer, state every reason.

4.                  While you have been permitted to bring materials into the examination room, answering the questions appropriately will put time pressure on you.  You should not do extensive research during the examination.  Credit will be weighted according to the time allocations shown.  Manage your time accordingly.

5.                  You may decide, in answering one or more questions, that a complete answer would require legal research.  If this is so, you should identify the specific issue that you would research.  If you have a mastery of the basic concepts, you will be able to frame research issues very narrowly and precisely.

6.                  It also may be that more factual information is required to answer a question.  If this is the case, you should say what factual information is required and why you need it.  A mastery of the underlying concepts will permit you to frame any factual inquiries very narrowly and link them precisely to the legal issue involved.

7.                  Organization and clarity are very important.  A shorter answer that is well organized and evidences a clear understanding of basic concepts and their interrelationships is better than a long answer with disconnected fragments of information.

8.                  Do not write outside the margins of your bluebook pages.

9.                  Write your examination number on your bluebook(s) and on each page of this examination.  Do not use your name.

10.              When you have finished the examination place it inside your bluebook(s) and deposit them in the appropriate box in the examination room.

MATERIALS WHICH MAY BE TAKEN INTO THE EXAMINATION ROOM

Any material including any outlines whether commercially prepared or not, whether accessible by computer or not.  No communication by e-mail is permitted during the exam.

GOOD LUCK!


Confidential

Conflict of Laws Final Examination

Question I. (120 Minutes)

Raul Trixie has organized an Internet activity he calls the Business Abuse Prevention System ("BAPS").  Among other things, BAPS maintains the Bad Business Black List ("BBBL").  Mr. Trixie has developed some "rules" for good e-commerce business practices.  One of the rules requires merchants offering goods or services on the Internet to offer money back guarantees "with no questions asked."  Any merchant whom Mr. Trixie believes to operate in violation of any of his rules is blacklisted.  Blacklisting works by entering the IP address of the merchant to be blacklisted into the BBBL. 

Any Internet Service Provider ("ISP") can subscribe to the BBBL.  Mr. Trixie sends any subscriber a software patch for the router that connects that subscribing ISP ("SISP") to the Internet.  The software programs the router so that whenever it receives a packet of information from the Internet addressed to one of the SISP's customers or members, it checks the sending address (the origin address) automatically against the BBBL.  If the IP address is found on the BBBL, the software causes the packet to be thrown away instead of being delivered to the addressee.  When customers or members of a SISP send packets to addresses on the Internet outside of that particular ISP, the software checks the destination address against the BBBL.  If it appears on the BBBL, the software causes the packet to be thrown away instead of sent on to other parts of the Internet.

Tommy Krebs wanted to sell his small sailboat he kept on the Chesapeake Bay near St. Michael's, Maryland.  He decided a good way to advertise the sailboat was to send out mass email messages to everyone whose email address he had, and also to post an offer to sell the sailboat on his personal Web site.  Krebs had no Web server of his own.  Instead, like many individuals, he subscribed to an ISP, "America Ontime," ("AOT") which provided him space on its Web server for his personal Web page.  Krebs also maintained an email account with America Ontime.  The only IP address associated with Krebs was the IP address assigned to America Ontime. 

Trixie had told a friend that he was interested in buying a sailboat, and the friend told him about Krebs' offer to sell his boat.  Trixie looked at Krebs' Web site, and sent him an email asking if he offered a money back guarantee with no questions asked.  Krebs responded, "I certainly do not make any such guarantee.  This an "as is" sale.  It's your responsibility to check the boat over as much as you want before you decide whether to buy it."  Concluding that Krebs was completely out of compliance with his money back guarantee rule, Trixie included the IP address of America Ontime on the BBBL.  The result was that any email or Web request to or from America Ontime was thrown away—not only those going to or from Krebs' site, but also those going to or from any other America Ontime subscriber. 

America Ontime did not subscribe to the BBBL, but ISP's accounting for about 40% of the Internet do subscribe.  Thus, America Ontime and all its subscribers were cut off from about 40% of the Internet.

Trixie is located in California where he bases his Internet consulting business.  The BBBL is maintained on a Web server in Trixie's office.  He connects to the Internet directly through a backbone service provider incorporated in Delaware, which has points of presence (connection points) in all 50 states.  Krebs lives in Pennsylvania.  He does most of his Internet activity from his home, and the rest of it from his office also located in Pennsylvania.  America Ontime is incorporated in Virginia, and maintains all of its server hardware there.  While it accepts subscribers from anywhere in the United States or elsewhere, the way most individuals, including Krebs, connect with AOT servers is through "1-800" toll free telephone numbers, which allow calls from anywhere, without America Ontime having to maintain any telephone equipment or modems anywhere except at its headquarters in Virginia.

Mort Jordan was a recreational sailor who lived in Illinois.  He wanted to buy a boat just like the one Krebs wanted to sell.  Because Jordan's ISP, Macro Hard Worknet ("MHW") subscribed to the BBBL, Jordan was unable to receive any information about Krebs' boat.  He had heard about the boat ad, and sought to connect to Krebs' Web site and to send Krebs email but was unable to do so because of the blacklist.  He ended up buying another boat at a much higher price with less satisfactory characteristics.

A.        What arguments can Krebs make to support personal jurisdiction over Trixie if Krebs

sues Trixie in state court in Pennsylvania?

How would Jordan's arguments differ, in support of personal jurisdiction over Trixie in state court in Illinois?  What would Trixie's arguments against personal jurisdiction be in each of these forums?

B.         Both Krebs and Jordan want to sue Trixe and MHW for the tort of intentional

interference with contractual relations.  Assume that the only element in question in establishing the tort is whether the interference with the sailboat sale from Krebs to Jordan is whether the interference was "improper."  Assume further that, under California law, the interference with the sale resulting from the blacklisting of AOT would not be improper because Trixie can justify his conduct based on a good faith effort to impose increased standards for business conduct.  Assume that it would almost certainly be improper under Pennsylvania law because attempting to impose one's own standards on another business has been found to be improper in Pennsylvania cases.  Maryland may not recognize the tort at all for such a speculative business relationship.  Assume that Illinois recognizes the tort but would permit recovery only upon clear and convincing evidence that Trixie's money back guarantee rule exceeded normal standards in the industry.

1.                  What choice of law arguments would Krebs make in his suit against Trixie?  Evaluate his prospects for success with each argument.

2.                  What choice of law arguments would Jordan make in his suit against MHW,  which is incorporated in, and has its primary place of business in, Washington state?  In order to recover against MHW, he must show that Trixie committed the tort of intentional interference with contractual relations and that MHW acted as Trixie's agent.  Assume that Maryland, Pennsylvania, and California law is favorable to Jordan on the agency question, and that Washington and Illinois law is unfavorable.  Assess the probability of success with each major argument.

3.                  Does Krebs have different choice of law arguments in his claim against MHW?  If he does, how do they differ from the arguments attributed to Jordan?

4.                  How would the arguments change, if at all, if Jordan files suit in federal court in Illinois instead of in state court?

Question II. (60 Minutes)

Suppose your client, Mildred Wagner, maintains a Web site on which she posts book reviews.  One of the book reviews was quite critical of a Danish author's new book.  Wagner comes to you in a panic because she just received word that a default judgment for defamation has been entered against her by a Danish court.  When you interview her, she tells you that she remembers receiving an email message about a month ago notifying her that she had been sued in this Danish court for defamation.  She paid no attention to the email message, thinking that it either was a joke or that it had no legal significance.  Your research uncovers a new Danish long arm statute that permits defendants maintaining Web sites to be served by email at the email address shown on their Web site, when the claim arises out of the contents of a Web site visible in Denmark.

Wagner tells you she has no assets in Denmark and that she has no plans to travel there.  She does, however, own a timeshare condominium interest in Dublin, Ireland.  Write a concise memo to her explaining the risks she faces in having this judgment enforced against her, the arguments you might make on her behalf to resist enforcement and the probability of success with those arguments.  Be sure to explain the sources of law involved in your analysis.