"Deemed" jurisdiction / disclaimed personal jurisdiction

[Carol Shepherd]

I just saw my third or fourth instance of a contract provision along the
lines of:

"You agree that 1. the site, services and platform shall be deemed
solely based in [STATE] and 2. the site shall be deemed a passive
website that does not give rise to personal jurisdiction over us, either
specific or general, in jurisdictions other than [STATE]."

This seems to be at best hopeful and at worst in terrorem but I've
probably missed some relevant developments.

Can anyone point me to state or federal caselaw (conflicts of laws or
jdx, contracts cases, or otherwise) which would support this gambit?
--

Carol Ruth Shepherd, Esq.
VP/General Counsel Loud Feed, Inc.  |  http://loudfeed.com
Principal, Arborlaw PLC             |  http://arborlaw.biz
734.717.4646 v  734.786.1241 f


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[Warren E. Agin]

I'm not sure how this adds anything if you've already negotiated an exclusive jurisdiction provision in the contract. Are you spotting these in terms of service provisions or negotiated contracts?
Regards,

- Warren Agin

_____________________________________
Warren E. Agin
Swiggart & Agin, LLC
197 Portland Street
Boston, MA 02114
617.742.0110 x203 fax [phone]
direct: 617.517.3203
WEA@...
http://www.swiggartagin.com
_____________________________________
This e-mail and any attachments are confidential and may be privileged. If you are not an intended recipient, please notify Swiggart & Agin, LLC now -- either hit "Reply" or e-mail info@... -- and please delete all copies of this message and any attachments. Thank you.

Any tax information or written tax advice contained herein (including any attachments) is not intended to be and cannot be used by any taxpayer for the purpose of avoiding tax penalties that may be imposed on the taxpayer. (The foregoing legend has been affixed pursuant to U.S. Treasury Regulations governing tax practice.)

For more information about Swiggart & Agin, LLC, please visit http://www.swiggartagin.com.

----- Original Message -----

  From: Carol Shepherd
  To: CYBERIA-L@...
  Sent: Wednesday, September 17, 2008 3:44 PM
  Subject: "Deemed" jurisdiction / disclaimed personal jurisdiction


  I just saw my third or fourth instance of a contract provision along the
  lines of:

  "You agree that 1. the site, services and platform shall be deemed
  solely based in [STATE] and 2. the site shall be deemed a passive
  website that does not give rise to personal jurisdiction over us, either
  specific or general, in jurisdictions other than [STATE]."

  This seems to be at best hopeful and at worst in terrorem but I've
  probably missed some relevant developments.

  Can anyone point me to state or federal caselaw (conflicts of laws or
  jdx, contracts cases, or otherwise) which would support this gambit?
  --

  Carol Ruth Shepherd, Esq.
  VP/General Counsel Loud Feed, Inc.  |  http://loudfeed.com
  Principal, Arborlaw PLC             |  http://arborlaw.biz
  734.717.4646 v  734.786.1241 f


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  Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
  Need more help? Send mail to: Cyberia-L-Request@...
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[Carol Shepherd]

I've run into these only in unilateral contracts -- two TOS, two are
non-negotiable software licenses.  I wouldn't be counseling a client to
agree to these in a negotiated contract, for obvious reasons.

Warren E. Agin wrote:

> I'm not sure how this adds anything if you've already negotiated an exclusive jurisdiction provision in the contract. Are you spotting these in terms of service provisions or negotiated contracts?
> Regards,
>
> - Warren Agin
>
> _____________________________________
> Warren E. Agin
> Swiggart & Agin, LLC
> 197 Portland Street
> Boston, MA 02114
> 617.742.0110 x203 fax [phone]
> direct: 617.517.3203
> WEA@...
> http://www.swiggartagin.com
> _____________________________________
> This e-mail and any attachments are confidential and may be privileged. If you are not an intended recipient, please notify Swiggart & Agin, LLC now -- either hit "Reply" or e-mail info@... -- and please delete all copies of this message and any attachments. Thank you.
>
> Any tax information or written tax advice contained herein (including any attachments) is not intended to be and cannot be used by any taxpayer for the purpose of avoiding tax penalties that may be imposed on the taxpayer. (The foregoing legend has been affixed pursuant to U.S. Treasury Regulations governing tax practice.)
>
> For more information about Swiggart & Agin, LLC, please visit http://www.swiggartagin.com.
>
> ----- Original Message -----
>
>   From: Carol Shepherd
>   To: CYBERIA-L@...
>   Sent: Wednesday, September 17, 2008 3:44 PM
>   Subject: "Deemed" jurisdiction / disclaimed personal jurisdiction
>
>
>   I just saw my third or fourth instance of a contract provision along the
>   lines of:
>
>   "You agree that 1. the site, services and platform shall be deemed
>   solely based in [STATE] and 2. the site shall be deemed a passive
>   website that does not give rise to personal jurisdiction over us, either
>   specific or general, in jurisdictions other than [STATE]."
>
>   This seems to be at best hopeful and at worst in terrorem but I've
>   probably missed some relevant developments.
>
>   Can anyone point me to state or federal caselaw (conflicts of laws or
>   jdx, contracts cases, or otherwise) which would support this gambit?
>   --
>
>   Carol Ruth Shepherd, Esq.
>   VP/General Counsel Loud Feed, Inc.  |  http://loudfeed.com
>   Principal, Arborlaw PLC             |  http://arborlaw.biz
>   734.717.4646 v  734.786.1241 f
>
>
>   **********************************************************************
>   For Listserv Instructions, see http://www.lawlists.net/cyberia
>   Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
>   Need more help? Send mail to: Cyberia-L-Request@...
>   **********************************************************************
>
>
> **********************************************************************
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>

--
Carol Ruth Shepherd
Arborlaw PLC
Ann Arbor MI USA
734 668 4646 v  734 786 1241 f
Arborlaw - a legal blog for entrepreneurs and small business
http://arborlaw.biz/blog


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[Stephen T. Middlebrook]

The provision doesn't make a lot of sense to me.  You may consent to
personal jurisdiction, but I don't think you can "deem" it away.

In a two party contract if you wanted to control where litigation over the
agreement would take place, you would simply contractually bind each other
to bring suit in a specific court.  That provision wouldn't negate
personal jurisdiction in other states, it would just make it irrelevant.

Given that this provision speaks of both "specific and general"
jurisdiction, my guess is that this provision is targeted at third parties
who would attempt to use the fact that the web site is providing services
to your client in state X as evidence to support state X asserting general
jurisdiction over the provider.  If that is the actual goal, I think the
provision fails miserably and is, in fact, a tad silly.

"Pay no attention to the minimum contacts and purposeful availment behind
the curtain."

Cheers,

stm





Carol Shepherd <arborlaw@...>
Sent by: Law & Policy of Computer Communications
<CYBERIA-L@...>
09/18/2008 11:16 AM
Please respond to
Law & Policy of Computer Communications <CYBERIA-L@...>


To
CYBERIA-L@...
cc

Subject
Re: [CYBERIA] "Deemed" jurisdiction / disclaimed personal jurisdiction






I've run into these only in unilateral contracts -- two TOS, two are
non-negotiable software licenses.  I wouldn't be counseling a client to
agree to these in a negotiated contract, for obvious reasons.

Warren E. Agin wrote:
> I'm not sure how this adds anything if you've already negotiated an
exclusive jurisdiction provision in the contract. Are you spotting these
in terms of service provisions or negotiated contracts?

> Regards,
>
> - Warren Agin
>
> _____________________________________
> Warren E. Agin
> Swiggart & Agin, LLC
> 197 Portland Street
> Boston, MA 02114
> 617.742.0110 x203 fax [phone]
> direct: 617.517.3203
> WEA@...
> http://www.swiggartagin.com
> _____________________________________
> This e-mail and any attachments are confidential and may be privileged.

If you are not an intended recipient, please notify Swiggart & Agin, LLC
now -- either hit "Reply" or e-mail info@... -- and please
delete all copies of this message and any attachments. Thank you.
>
> Any tax information or written tax advice contained herein (including
any attachments) is not intended to be and cannot be used by any taxpayer
for the purpose of avoiding tax penalties that may be imposed on the
taxpayer. (The foregoing legend has been affixed pursuant to U.S. Treasury
Regulations governing tax practice.)
>
> For more information about Swiggart & Agin, LLC, please visit
http://www.swiggartagin.com.

>
> ----- Original Message -----
>
>   From: Carol Shepherd
>   To: CYBERIA-L@...
>   Sent: Wednesday, September 17, 2008 3:44 PM
>   Subject: "Deemed" jurisdiction / disclaimed personal jurisdiction
>
>
>   I just saw my third or fourth instance of a contract provision along

the
>   lines of:
>
>   "You agree that 1. the site, services and platform shall be deemed
>   solely based in [STATE] and 2. the site shall be deemed a passive
>   website that does not give rise to personal jurisdiction over us,
either

>   specific or general, in jurisdictions other than [STATE]."
>
>   This seems to be at best hopeful and at worst in terrorem but I've
>   probably missed some relevant developments.
>
>   Can anyone point me to state or federal caselaw (conflicts of laws or
>   jdx, contracts cases, or otherwise) which would support this gambit?
>   --
>
>   Carol Ruth Shepherd, Esq.
>   VP/General Counsel Loud Feed, Inc.  |  http://loudfeed.com
>   Principal, Arborlaw PLC             |  http://arborlaw.biz
>   734.717.4646 v  734.786.1241 f
>
>
>   **********************************************************************
>   For Listserv Instructions, see http://www.lawlists.net/cyberia
>   Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
>   Need more help? Send mail to: Cyberia-L-Request@...
>   **********************************************************************
>
>
> **********************************************************************
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> Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
> Need more help? Send mail to: Cyberia-L-Request@...
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>

--
Carol Ruth Shepherd
Arborlaw PLC
Ann Arbor MI USA
734 668 4646 v  734 786 1241 f
Arborlaw - a legal blog for entrepreneurs and small business
http://arborlaw.biz/blog


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