General Jurisdiction and Internet Contacts: What Role, if any, Should the Zippo Sliding Scale Test Play in the Analysis?
General Jurisdiction and Internet Contacts: W hat Role, if any, Should the Zippo Sliding Scale Test Play in the Analysis?
Eric C. Hawkins 0 1
0 Thi s Article is brought to you for free and open access by FLASH: The F ordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The F ordham Law Archive of Scholarship and History. For more information , please contact
1 Eric C. Hawkins, General Jurisdiction and Internet Contacts: What Role, if any, Should the Zippo Sliding Scale Test Play in the Analysis? , 74 Fordham L. Rev. 2371 (2006). Available at:
Since the mid-1990s, courts have struggled with the issue of whether to
assert personal jurisdiction over an out of state defendant who has
established contacts with the forum state via the Internet. As courts
searched for a way to apply the conventional "minimum contacts" rule to
Internet activity, the "sliding scale" test of Zippo Manufacturing Co. v.
Zippo Dot Corn, Inc. 1 emerged as the most popular framework for
analyzing Internet contacts. But since Zippo was decided in 1997,
numerous flaws have emerged in the sliding scale test, and critics have
questioned the test's continuing usefulness. 2 Courts disagree as to whether
Zippo is the proper standard for general jurisdiction cases. 3 This Note
focuses on that question.
Part I of this Note provides background material on the concept of
personal jurisdiction and the "minimum contacts" test used to determine
when a court has jurisdiction over an out of state defendant. Part I also
examines the emergence of the Zippo test and some reactions to it. Part II
explores the split among courts over what role, if any, Zippo should play in
a general jurisdiction analysis. Part III argues that the Zippo test is
inconsistent with the Supreme Court's general jurisdiction doctrine and is
under-protective of due process rights in the general jurisdiction context.
Therefore, this Note proposes that courts abandon Zippo in general
jurisdiction cases and refocus the analysis on traditional minimum contacts
* J.D. Candidate, 2007, Fordham University School of Law. I would like to thank Professor
Marc Arkin for her valuable help with this Note.
1. 952 F. Supp. 1119, 1124 (W.D. Pa. 1997) (introducing a "sliding scale test" for
determining whether to assert personal jurisdiction over an out of state defendant in the
2. See infra Part I.B.3.
3. See infra Part II.
I. PERSONAL JURISDICTION BACKGROUND
Part I of this Note surveys fundamental personal jurisdiction concepts
and their application in the Internet age. First, it covers the evolution of the
U.S. Supreme Court's minimum contacts framework, from the oWriagsihninogftothne4
minimum contacts concept in International Shoe Co. v.
through the Court's most recent major refinement of it in Asahi Metal
Industry Co. v. Superior Court of California5. Next, this part examines the
Zippo sliding scale test, which attempts to adapt minimum contacts analysis
to Internet activities. 6 Part I concludes by presenting some reactions to
Zippo and post-Zippo trends in Internet-based personal jurisdiction.
A. Due Processand the Evolution ofMinimum Contacts
The Due Process Clause of the Fourteenth Amendment limits the power
of a state court to issue binding judgments on out of state defendants who
do not have sufficient connections with that state. 7 This section of the Note
examines the ways in which the Supreme Court has defined that limitation.
1. The Minimum Contacts Rule
The Supreme Court addressed the constitutional limitations on the
exercise of personal jurisdiction over an out of state defendant in
InternationalShoe.8 In InternationalShoe, the state of Washington sought
personal jurisdiction over the International Shoe Company, a Delaware
corporation that had its principal place of business in St. Louis, Missouri,
but sold its products in Washington. 9 The state was attempting to recover
from International Shoe unpaid contributions to the state unemployment
fund.10 The company argued that it did not have to contribute because it
was not an employer within the meaning of the relevant statute. 11
International Shoe did not have an office or inventory in Washington.' 2
Instead, the company employed between eleven and thirteen salesmen,
working on commission, who displayed samples there.13
When a customer
made an order, the salesman would relay it to International Shoe's office in
St. Louis, and the company would ship the merchandise to the customer. 14
In deciding the case, the InternationalShoe Court formally articulated
the due process protection to which an out of state defendant is entitled: A
only exercise jurisdiction
minimum contacts" with the state. 15
over a defendant that has "certain
This is the "minimum contacts" rule.
The rule is based on the premise that enjoying the benefits of acting within
a state gives rise to certain responsibilities. 16
As the Court stated, "[T]o the
extent that a corporation exercises the privilege of conducting activities
within a state, it enjoys the benefits and protection of the laws of that state.
The exercise of that privilege may give rise to obligations. . .. "17
The purpose of the minimum contacts requirement is to ensure that an
exercise of personal jurisdiction does not violate "'traditional notions of fair
play and substantial justice."' 18
To this end, the Court identified a range of
levels of contact between a corporation and a forum. 19
proper when the corporation's activities in the forum are "continuous and
systematic" and also give rise to the plaintiffs cause of action.20
12. Id.at 313.
13. Id.at 313-14.
14. Id. at 314.
15. See id. at 316. Prior to InternationalShoe, personal jurisdiction was based on a
defendant's physical presence in the forum state, although this rule was subject to numerous
exceptions. See Jack H. Friedenthal et al., Civil Procedure § 3.10 (4th ed. 2005); cf
Pennoyer v. Neff, 95 U.S. 714 (1877). InternationalShoe was the Supreme Court's attempt
to craft a more flexible personal jurisdiction standard that would be better suited for a mobile
society. Friedenthal et al., supra, § 3.10. The Court moved away from the legal fiction of the
"presence" requirement, reasoning that a measurement of the defendant's activities in the
forum could take its place. See id.
16. See Int'l Shoe, 326 U.S. at 319. The Court has observed that, where a defendant has
deliberately engaged in "significant activities" within a state or created "continuing
obligations" between himself and residents of the state, he has "availed himself of the
privilege of conducting business there." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476
(1985) (citation omitted). Because such a person's activities are shielded by the benefits and
protections of the state's laws, it is presumptively reasonable for him to be haled into court
there. See id.
17. Int'l Shoe, 326 U.S. at 319.
18. Id. at 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
19. See id. at 317-18. In one of the many post-InternationalShoe refinements of the
minimum contacts rule, courts (including the Supreme Court) have conceptually separated
"minimum contacts" from "fair play and substantial justice." Friedenthal et al., supra note
15, § 3.10. The result is a two-step test, in which a court first determines whether the
defendant has sufficient minimum contacts and then decides whether exercising jurisdiction
would offend "traditional notions of fair play and substantial justice." Id.; see also Burger
King, 471 U.S. at 476 ("Once it has been decided that a defendant purposefully established
minimum contacts within the forum State, these contacts may be considered in light of other
factors to determine whether the assertion of personal jurisdiction would comport with 'fair
play and substantial justice."' (quoting Int'l Shoe, 326 U.S. at 320)).
20. See Int'lShoe, 326 U.S. at 317.
situation, a court may exercise specific jurisdiction over the out of state
defendant, or, in other words, jurisdiction over the defendant with regard to
a claim arising out of the defendant's contacts with the forum. 2 1
Additionally, specific jurisdiction may be available based on "the
commission of some single or occasional acts of the corporate agent in [the]
state," depending on the nature, quality, and circumstances of those acts. 22
The Court also introduced the possibility of exercising jurisdiction over a
claim unrelated to the defendant's contacts with the forum if those contacts
are sufficiently "substantial. '23 This last form of jurisdiction is known as
"general jurisdiction." 24
Applying the minimum contacts test, the Court found International
Shoe's contacts with Washington to be "neither irregular nor casual," but
rather "systematic and continuous." 25 Because the dispute arose out of
those contacts, the Court did not address the issue of whether they were
substantial enough to support general jurisdiction. 26 The Court concluded
that the Washington state court could exercise jurisdiction over
International Shoe consistent with traditional concepts of "fair play and
substantial justice." 27
2. Post-InternationalShoe Refinements of the Minimum Contacts Rule
The Supreme Court has clarified the minimum contacts doctrine several
times since its 1945 ruling in InternationalShoe. Those refinements are
discussed in this section.
a. The Calder Effects Test
The Supreme Court addressed personal jurisdiction in the tort context in
Calder v. Jones.28 In Calder, the actress Shirley Jones sued the National
Enquirer and two of its employees, John South and lain Calder, over an
article that appeared in that magazine. 29 Jones brought claims in California
state court for libel, invasion of privacy, and intentional infliction of
emotional distress. 30 The Enquirer, which had a weekly circulation in
21. See Robert J. Condlin, "Defendant Veto" or "Totality of the Circumstances"? It's
Time for the Supreme Court to Straighten Out the Personal Jurisdiction Standard Once
Again, 54 Cath. U. L. Rev. 53, 58 (2004).
22. See Int'l Shoe, 326 U.S. at 318; see also Condlin, supra note 21, at 58 (describing
the exercise of jurisdiction in such a situation as specific jurisdiction). This form of specific
jurisdiction, which covers cases in which the defendant's activity in the forum is sporadic or
consists of only a single act, has often been used in tort claims against out of state motorists.
See Friedenthal et al., supranote 15, § 3.10.
23. Int'lShoe, 326 U.S. at 318.
24. See infra Part I.A.3.
25. Int'lShoe, 326 U.S. at 320.
26. See id.("The obligation which is here sued upon arose out ofthose very activities.").
28. 465 U.S. 783 (1984).
29. See id. at 784-86.
30. Id. at 785.
California of approximately 600,000 copies, did not contest personal
jurisdiction. 3 1 However, South (the writer) and Calder (the editor), both
Florida residents, objected to personal jurisdiction.3 2
South researched the article primarily by making calls from Florida to
California. 33 There was a dispute as to whether South had traveled to
California in connection with the article, but the Court did not consider the
issue, because doing so was unnecessary to resolve the case. 34 Calder, who
approved the subject of the article and edited its final form, had no other
relevant contacts with California. 3 5
Despite what appeared to be limited direct contact between the
defendants and the forum state, the Court upheld jurisdiction. 36 The Court
based this result on the effects that the defendants' out of state conduct had
within the forum and the fact that the defendants had targeted the forum
state with their conduct. 37 The brunt of the harm that the defendants caused
was felt in California, and the Court concluded that the defendants had
"expressly aimed" their intentional actions there. 3 8 Because the defendants
could reasonably anticipate being haled into court in California, jurisdiction
b. World-Wide Volkswagen Co. v. Woodson and Foreseeability
World-Wide Volkswagen presented the Supreme Court with the issue of
whether a defendant that sells a product in interstate commerce is subject to
suit wherever the product creates a cause of action.40 In World-Wide
Volkswagen, the plaintiffs bought an Audi from a car dealer in New York.4 1
While the plaintiffs were driving through Oklahoma, another car struck
theirs, causing a fire that severely injured them.42 The plaintiffs brought
suit in Oklahoma state court against, among others, the retail distributor,
World-Wide Volkswagen, and the retail dealer, Seaway, both of which
were incorporated in New York and had their places of business there. 43
The Court held that, despite the fact that the defendants' product could
foreseeably cause injury in Oklahoma, the defendants were not subject to
personal jurisdiction there.44 To rule otherwise, the Court reasoned, would
mean that every seller of chattels would be subject to suit wherever his
chattels were taken. 45 The Court did not hold that foreseeability was totally
irrelevant in the personal jurisdiction analysis, however.46 But the
foreseeability that matters for purposes of personal jurisdiction is not the
possibility that the defendant's product could somehow end up in the forum
state. 47 Instead, the issue was whether the defendant "should reasonably
anticipate being haled into court [in the forum state]."'4 8 Contacts sufficient
to establish personal jurisdiction exist when the defendant has purposefully
availed itself of the benefits and privileges of conducting activities within
the forum state. 49 The World-Wide Volkswagen defendants did not have
those kinds of contacts with Oklahoma, so the Court refused to authorize
c. Burger King Corp. v. Rudzewicz's Two-Part Test
Burger King involved a breach of contract claim by Burger King, a
Florida corporation, against a Michigan franchisee. 5 1 Burger King brought
suit in the U.S. District Court for the Southern District of Florida. 52 The
district court took jurisdiction, but the U.S. Court of Appeals for the
Eleventh Circuit reversed. 5 3 The Supreme Court reversed the Eleventh
Circuit, allowing the district court to exercise personal jurisdiction over the
out of state defendant. 54 In reaching this conclusion, the Court announced a
two-part personal jurisdiction test. First, a court should look to the
defendant's actions to determine whether he has purposefully availed
himself of the privilege of conducting business in the forum state, thereby
enjoying the benefits and protections of that state's laws. 55 Second, if the
court determines that the defendant has purposefully established minimum
contacts, the court should consider whether the exercise of personal
jurisdiction would be consistent with traditional notions of "'fair play and
substantial justice." 56
In applying the second prong of the test, a court can consider a multitude
of factors, including the burden on the defendant, the forum state's interest
in adjudicating the dispute, the plaintiffs interests, the interstate judicial
system's interest in the efficient resolution of controversies, and the shared
interests of the states in furthering fundamental social policies. 57 If those
considerations favor jurisdiction, then jurisdiction will exist under a lesser
showing of minimum contacts than would otherwise be required.58 But
where a defendant has purposefully directed his activities at the forum state,
he must show a high level of unreasonableness in order to defeat
In Asahi, the Court addressed the issue of whether a defendant
establishes minimum contacts with a forum state by placing its product in
the "stream of commerce" with knowledge that the product might end up in
the forum. 60 Asahi was a products-liability case arising out of a motorcycle
accident. 6 1 The plaintiff brought suit in California state court, and one of
the defendants sought to implead Asahi, a Japanese corporation that had
manufactured a component part of the motorcycle. 62 A small percentage of
Asahi's annual sales were to Cheng Shin, a Taiwanese firm that
manufactured part of the plaintiffs motorcycle, and approximately twenty
percent of Cheng Shin's sales were to California. 63
The Court did not allow California to take jurisdiction over Asahi. 64
Writing for a plurality, Justice Sandra Day O'Connor reiterated the Court's
statement in Burger King that minimum contacts require "an action of the
defendant purposefully directed toward the forum State." 65 The placement
of a product in the stream of commerce, without more, is not an act
purposefully directed at the forum state. 66 As the Court held in World-Wide
Volkswagen, the mere fact that the defendant's product had created a cause
of action in the forum did not create personal jurisdiction over the defendant
there. 67 However, a defendant could, through additional conduct, indicate
an intent to serve the forum. 68 Such conduct might include designing the
product for the forum market, advertising in the forum, establishing
channels to provide regular advice to customers in the forum, or marketing
the product through a distributor in the forum. 69
3. General Jurisdiction
When the Supreme Court articulated the minimum contacts rule in
International Shoe, it acknowledged the possibility that a court could,
consistent with due process, exercise personal jurisdiction over an out of
state defendant on a cause of action unrelated to the defendant's contacts
with the forum state. 70 That form of jurisdiction has come to be known as
general jurisdiction. 7 1 This section explores the evolution of general
jurisdiction in the sixty-one years since InternationalShoe.
a. The Supreme Court's Major GeneralJurisdictionCases
Although International Shoe clearly stated that courts may in certain
circumstances exercise jurisdiction over a defendant on a cause of action
unrelated to the defendant's forum state activities, 72 the Supreme Court has
done little to further develop the concept of general jurisdiction. 73 In fact,
the Court directly addressed general jurisdiction only twice since deciding
InternationalShoe in 1945.74 As a result, some commentators feel that the
Court has provided insufficient guidance as to when general jurisdiction
i. Perkinsv. Benguet ConsolidatedMining Co.
The Court's first general jurisdiction case, and the only one in which it
has upheld general jurisdiction, was Perkins v. Benguet Consolidated
Mining Co. 76 Perkins was a shareholder suit brought in Ohio state court
against a mining company based in the Philippine Islands. 77 During the
Korean War, the company carried on a "continuous and systematic, but
limited" part of its business in Ohio; the cause of action was unrelated to
those activities. 78
In Perkins, the Court reaffirmed its position (as stated in International
Shoe) regarding the availability of general jurisdiction: There are situations
where a corporation's activities in a state justify subjecting it to suit on an
unrelated cause of action. 79 The test is simple, if somewhat vague: Are the
defendant's activities in the forum substantial enough to justify such a
suit?80 The Perkins defendant's activities 8 1 met this standard, and therefore
Ohio could take jurisdiction consistent with due process. 82
ii. HelicopterosNacionalesde Colombia, S.A. v. Hall
The Court next took up general jurisdiction thirty-two years later in
HelicopterosNacionales de Colombia, S.A. v. Hall.83 Although the Court
claimed to be following Perkins, and discussed that case at length, 84 it
subtly but significantly reformulated the general jurisdiction test. In
Perkins, the Court described the defendant's contacts with the forum as
"continuous and systematic," 85 but it clearly stated that the appropriateness
of general jurisdiction would depend on whether they were "sufficiently
substantial. ' 86 In Helicopteros, however, the Court described the general
jurisdiction test as whether the defendant's contacts with the forum
''constitute the kind of continuous and systematic general business contacts
the Court found to exist in Perkins."87 This was a rhetorical break not only
with Perkins,but with InternationalShoe as well, which had also stated that
general jurisdiction requires substantial contacts with the forum. 88
b. Metropolitan Life Insurance Co. v. Robertson-Ceco Corp. and the
In addition to the requirement that the defendant's contacts with the
forum be continuous, systematic, and substantial, due process also requires
that the exercise of general jurisdiction be reasonable. 89 The Supreme
Court has deemed a number of factors relevant to the reasonableness
inquiry: the burden on the defendant, the interests of the forum state, the
plaintiff's interest in obtaining relief, the interstate judicial system's interest
in obtaining the most efficient resolution of controversies, and the shared
interest of the several states in furthering substantive social policies. 90 The
more reasonable that personal jurisdiction would be in light of these factors,
the fewer contacts necessary. 9 1 Conversely, a defendant who has
purposefully directed activities at the forum state will have to show a high
degree of unreasonableness in order to defeat jurisdiction. 92 The Supreme
Court has provided only limited guidance as to what the various
reasonableness factors mean and how they should be weighed, leading
The reasonableness inquiry rarely prevents the exercise of general
jurisdiction when the defendant's contacts with the forum are otherwise
sufficient.94 However, it is not completely toothless. 95 The Second Circuit
used it to decline general jurisdiction in MetropolitanLife Insurance Co. v.
Robertson-Ceco Corp.9 6 In that case, Metropolitan Life Insurance Co.
("Met Life"), a New York corporation with its principal place of business in
New York, brought suit in Vermont against Robertson-Ceco, a Delaware
corporation with its principal place of business in Pennsylvania, based on
events that occurred in Florida.97
The court found the defendant's contacts with the forum to be sufficient
for general jurisdiction, although it was a close case, falling somewhere
between Perkins and Helicopteros.98 Despite the contacts, the court
declined to assert general jurisdiction over Robertson-Ceco in Vermont,
because doing so would be "decidedly unreasonable." 99 Among other
factors, the dispute "implicate[d] absolutely no interest of the State of
Vermont," and Met Life failed to show that trying the case there would
further any substantive social policy.' 00
c. ScholarlyAnalysis of the Supreme Court's GeneralJurisdiction
According to InternationalShoe, general jurisdiction is available when
the defendant's contacts with the forum are sufficiently "substantial."' '0 In
subsequent cases, however, both the Supreme Court and lower courts have
strayed from this formulation, using the phrase "continuous and systematic"
instead. 10 2 This shift in terminology has caused further confusion in the
already poorly defined area of general jurisdiction. 10 3 As Professor Robert
J. Condlin points out, the term "substantial" was the key difference between
specific and general jurisdiction in InternationalShoe:104 "[T]o interpret
the requirement of 'continuous and systematic' contacts to mean the same
thing as 'substantial' contacts is just a mistake, no matter how frequently it
is made."'1 5 And it is a mistake with serious implications:
Lower courts (and even the Supreme Court, in Burger King) routinely
quote Helicopteros for the proposition that general jurisdiction requires
only "continuous and systematic" in-state activity, find this requirement
satisfied by some form of doing business in the state, and then routinely
take general jurisdiction over corporations carrying on any minimal
amount of commercial activity in the state. This is a mistake not only for
reasons of policy and principle ...but also because it gets the doctrinal
Condlin argues that, as a result of this confusion, the concept of general
jurisdiction has become so "watered down" that it is often actually easier to
satisfy its requirements than to satisfy the requirements of specific
jurisdiction, which were intended to be less restrictive. 10 7 As a result, many
courts treat Helicopterosas holding that simply doing business in a state is
sufficient to support general jurisdiction. 10 8
The Supreme Court has refined the minimum contacts framework
approximately once every twenty years since deciding InternationalShoe in
1945.109 In the twenty-one years since Burger King, which the Court
decided in 1985, the Internet has dramatically transformed commerce and
communication.1 10 By one estimate, over sixty-eight percent of the U.S
population uses the Internet.11 1 The U.S. Census Bureau estimates that, in
the third quarter of 2005, online commerce in the U.S. amounted to $22.3
billion, or 2.3 percent of total sales in the economy. 112 Five years ago, the
portion of total U.S. sales attributed to e-commerce was about one
percent. 1 3 Yet the Supreme Court has not adapted the minimum contacts
framework to the Internet age. This section of the Note examines the
attempts of lower courts to do so.
1. Pre-Zippo Internet Jurisdiction
Determining when Internet activity can constitute sufficient minimum
contacts for personal jurisdiction has been a challenge for courts,11 4 and the
early results were met with "widespread academic despair." 115 Inset
Systems, Inc. v. Instruction Set, Inc., 116 a major pre-Zippo Internet
jurisdiction case, 117 is an early example of a court struggling with this
challenge. Inset was a trademark infringement case. 118 After the plaintiff
had already registered "Inset" as its trademark, the defendant registered the
Internet domain name "inset.com." 19 The defendant had few non-Internet
contacts with the forum state (Connecticut).1 20 The plaintiff argued that the
defendant's 1-800 number and web site, both of which the defendant had
allegedly used to conduct business in Connecticut, were sufficient contacts
to establish personal jurisdiction.' 2 1
The court agreed, indicating that the web site alone was enough to
support the result. 122
What made this case so disturbing to those who
advocate limited state powers of personal jurisdiction 123 was the court's
exceedingly broad view of Internet jurisdiction. 124 The defendant had used
its web site, which was continuously available in Connecticut, to direct
advertising toward the state. 125 According to the court, that meant the
defendant had purposefully availed itself of the privilege of doing business
with the state and could reasonably anticipate being haled into court
there.126 Therefore, Connecticut could assert personal jurisdiction.12 7
Although some other courts approved of Inset,128 scholars have generally
been critical of it.129 Professor Dennis T. Yokoyama, for example, believes
that Inset and its progeny
were leading courts towards establishing
universal personal jurisdiction, because under their reasoning a web site
operator would be subject to jurisdiction
wherever the site could be
Yokoyama and others argue further that the premise of
Insetthat Internet advertising alone establishes personal jurisdiction-is contrary
to the Supreme Court's concept of purposeful availment. 13 1
maintains that Inset's expansive approach to Internet jurisdiction would
have stifled e-commerce and significantly harmed smaller merchants.' 32
2. Zippo and the Sliding Scale Test
In Zippo Manufacturing Co. v. Zippo Dot Corn, Inc.,133 the Western
District of Pennsylvania announced a new personal jurisdiction framework
for evaluating Internet contacts, a framework that a majority of federal
courts have since adopted. 134 The case involved a series of trademark
claims by Zippo Manufacturing (maker of Zippo lighters) against Zippo
Dot Com. 135 Zippo Manufacturing filed suit in the Western District of
Pennsylvania. 13 6 Zippo Dot Coin, a California corporation that ran an
Internet news web site, moved to dismiss for lack of personal
jurisdiction. 137 The defendant's contacts with the forum state "occurred
almost exclusively over the Internet": The defendant did not have offices,
employees, or agents in the forum; it advertised there only through its web
site; and only two percent of its news service subscribers lived there. 138
Because the dispute arose from the name of the web site itself, the
plaintiff sought specific, not general, jurisdiction over Zippo Dot Com. 139
After reviewing the major personal jurisdiction cases (including
Wide Volkswagen, InternationalShoe, and Burger King), the court sought
to apply the principles behind those cases to the new technological medium
with which it was faced. 140 Reasoning that the constitutionality of an
exercise of personal jurisdiction is proportionate to the "nature and quality
of commercial activity that an entity conducts over the Internet," the court
announced a "sliding scale" test for Internet-based personal jurisdiction:
At one end of the spectrum are situations where a defendant clearly does
business over the Internet. If the defendant enters into contracts with
residents of a foreign jurisdiction that involve the knowing and repeated
transmission of computer files over the Internet, personal jurisdiction is
proper.... At the opposite end are situations where a defendant has
simply posted information on an Internet Web site which is accessible to
users in foreign jurisdictions. A passive Web site that does little more
than make information available to those who are interested in it is not
grounds for the exercise of personal jurisdiction.... The middle ground
is occupied by interactive Web sites where a user can exchange
information with the host computer. In these cases, the exercise of
jurisdiction is determined by examining the level of interactivity and
133. 952 F. Supp. 1119 (W.D. Pa. 1997).
134. See infra note 208; see also 16 Moore et al., supra note 74, § 108.44[l] (observing
that most courts apply the sliding scale).
135. Zippo, 952 F. Supp. at 1121. Zippo Dot Corn had been maintaining a web site on
which the word "Zippo" appeared numerous times. Id.
136. Id. at 1119.
137. Id .at 1121.
139. Ida.t 1122.
140. See id. at 1124 ("This sliding scale is consistent with well developed personal
commercial nature of the exchange of information that occurs on the Web
The court then found Zippo Dot Com's web site to be interactive in
nature and upheld jurisdiction. 142
It noted that the defendant was doing
business over the Internet and had entered into thousands of electronic
contracts with forum residents. 143
3. Reactions to Zippo
The Zippo sliding scale test has become the most influential Internet
jurisdiction framework by an "overwhelming margin."' 144 Part of the reason
for the test's widespread acceptance was that courts had been eagerly
searching for a single personal jurisdiction standard for all Internet cases. 145
Zippo's approval was not undeserved; Professor Yokoyama argues that
Zippo was an improvement over the Inset line of cases because it was
"much more consistent" with established personal jurisdiction doctrine, 146
and because the Zippo court extended the minimum contacts rule to the
Internet. 147 Although he ultimately advocates minimizing the overall role
of the sliding scale test, 148 Yokoyama nevertheless praises Zippo for its
"incisive questioning and well-reasoned undermining of the Inset rationale
and its thoughtfulness in creating an alternative approach to Internet
Carlos J.R. Salvado has described Zippo as "a thoughtful opinion that
remained true to the established principles of personal jurisdiction.' 50
Professor Michael A. Geist believes that the Zippo test is "grounded in
traditional jurisdictional principles," particularly foreseeability.15 1
praises Zippo for rejecting the concept of the Internet as a separate
jurisdiction and making clear that local law still applies to the Internet. 152
While Zippo is preferable to the Inset rationale, which might have led to
universal Internet-based personal jurisdiction, 153 it has nevertheless drawn
much criticism. This criticism has come from courts 154 as well as
scholars. 155 Some critics are harsh; one commentator described the Zippo
test as "arbitrary" and "an egregious failure of legal imagination."' 156 The
critics have pointed out several flaws: The test is inconsistent with
established minimum contacts jurisprudence; it is too vague, creating
uncertainty; courts have applied it in inappropriate cases; and the test is bad
for policy reasons. 157
a. Zippo Is Inconsistent with TraditionalMinimum Contacts Doctrine
The U.S. District Court for the District of Oregon issued a thorough
critique of the Zippo test in Millennium Enterprises,Inc. v. Millennium
Music, LP.158 Although the defendant's web site in that case was probably
interactive enough to support jurisdiction under the middle range of Zippo,
the court declined to exercise jurisdiction, finding that the sliding scale test
needed "further refinement" in order to be consistent with established
minimum contacts doctrine. 159 The test needed "something more" to
encapsulate the critical requirement of minimum contacts, which is
deliberate action in the forum state or conduct directed at forum
residents. 160 The maintenance of a web site does not by itself satisfy the
purposeful availment requirement, even if the web site is interactive. 16 1
The court apparently saw itself as faced with a choice between basing
jurisdiction on an interactive web site (which Zippo would have authorized)
or sticking with the Supreme Court's traditional minimum contacts
boundaries). For further arguments that conventional laws should remain supreme over
Internet technology, see generally Joel R. Reidenberg, Technology and InternetJurisdiction,
153 U. Pa. L. Rev. 1951 (2005).
153. See Yokoyama, supra note 110, at 1160. For discussion of the implications of Inset,
see supranotes 116-32 and accompanying text.
154. See, e.g., Hy Cite Corp. v. Badbusinessbureau.com, 297 F. Supp. 2d 1154, 1160
(W.D. Wis. 2004)
("[A] rigid adherence to the Zippo test is likely to lead to erroneous
155. See Yokoyama, supra note 110, at 1166-67 (observing that courts and commentators
have been increasingly attacking Zippo).
156. Stein, supranote 114, at 430.
157. See infra Part I.B.3.a-d.
158. 33 F. Supp. 2d 907 (D. Or. 1999).
159. Id.at 921.
160. See id; cf Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76 (1985)
(discussing the "purposeful availment" requirement). Carlos Salvado's proposal for
addressing Intemet-based personal jurisdiction issues is also based on the requirement of
"something more." See Salvado, supra note 150, at 78. Salvado argues that a state should
have the power to assert personal jurisdiction over parties that, by some "additional
conduct," cause the effects of the Internet upon the state to be "intensified." Id. Salvado
identifies three ways in which such intensification can occur: "[c]ommercial sales, contracts,
or the infliction of intentional harm through the use of a website." Id.
161. See Millennium Music, 33 F. Supp. 2d at 923.
requirement of purposeful availment, and the court chose the latter
The U.S. District Court for the Western District of Wisconsin has also
observed potential inconsistencies between Zippo and the Supreme Court's
traditional minimum contacts doctrine. 163 In Hy Cite Corp. v.
Badbusinessbureau.com, a trademark infringement case, the court
compared Zippo with the established personal jurisdiction concepts of the
effects test and purposeful availment. 164 The Hy Cite court questioned both
the necessity of a separate personal jurisdiction test for Internet contacts and
the Zippo court's authority to create such a test. 165 The Hy Cite court also
observed that the Supreme Court has never instructed lower courts to apply
different personal jurisdiction standards depending on the type of contacts
involved in a case. 166 The court appeared to doubt the usefulness of the
sliding scale terminology, arguing that a court cannot determine whether
personal jurisdiction is appropriate simply by deciding whether a web site is
"6passive" or "active":
Even a "passive" website may support a finding of jurisdiction if the
defendant used [it] to harm the plaintiff in the forum state .... Similarly,
an "interactive" or commercial website may not be sufficient to support
jurisdiction if it is not aimed at residents in the forum state....
rigid adherence to the Zippo test is likely to lead to erroneous resultTs.h1u6s7, a
b. The Sliding Scale Is Too Vague andLacks Predictive Value
Professor Condlin argues that the sliding scale is excessively vague and
flexible, effectively giving courts license to apply whatever factors however
they want in a totality of the circumstances test. 168 Condlin claims that
susceptib[le], in the hands of a willful judge, to being turned into a kind of
all-purpose balancing test. Its open-ended and flexible terms permit a
judge to take all types of factors into account... and to weigh and
compare those factors in whatever fashion the judge thinks appropriate,
without necessarily having to rank the factors or make any one of them
(e.g., th1e69purposefulness of the defendant's forum contacts) first among
162. See id. ("[T]his court will not abandon the basic principle that defendants must have
taken some action to direct their activities in the forum so as to 'purposely avail' themselves
of the privilege of doing business within [the forum].").
163. See Hy Cite Corp. v. Badbusinessbureau.com, 297 F. Supp. 2d 1154, 1160
164. See id. at 1160-61.
165. See id. at 1160 ("[I]n Zippo, the court did not explain under what authority it was
adopting a specialized test for the internet or even why such a test was necessary.").
166. See id.
167. id. (citation omitted).
168. See Condlin, supra note 21, at 137.
The result, Professor Condlin believes, is that the sliding scale test
becomes a totality of the circumstances analysis, which is an approach that
the Supreme Court has repeatedly rejected for personal jurisdiction. 170
Zippo may even undermine the well-settled notion that a defendant can
avoid being haled into a particular state court by avoiding purposeful
contacts with that state. 17 1
Bunmi Awoyemi argues that the Zippo test currently offers little
predictive value. 172 Few web sites are totally active or passive, so more of
them fall into Zippo's middle category, which is less predictive and useful
than the two extreme ends of the sliding scale; this makes it hard for online
actors to predict where they will be subject to suit. 173 Awoyemi believes
that the decreasing usefulness of the sliding scale, combined with courts'
increasingly sophisticated understanding of the Internet, has led some
courts to move away from Zippo and towards a more traditional personal
jurisdiction approach in Internet cases. 174 Professor Yokoyama also noted
this problem with the Zippo test, describing it as having created "a black
hole of doubt and confusion" which leaves courts to struggle with the
question of whether an interactive web site constitutes purposeful
availment. 175 Summarizing these concerns, Professor Geist commented
that the Zippo test has "proven to be largely unhelpful as it provides parties
with only limited guidance."' 176
c. Courts Have Applied the Sliding Scale Incorrectly
Several commentators argue that, regardless of the Zippo test's inherent
value, courts have been misapplying it. 177 Salvado believes that some
courts have made the sliding scale categories more important than the Zippo
court intended.17 8 Those categories were not meant to be "neat categorical
and jurisdictionally dispositive boxes," but rather a conceptual tool to help a
court understand the nature of a web site and its potential uses. 179 Some
courts have forgotten that the Zippo court considered not only the potential
of the defendant to enter into contacts with the forum through its web site,
but also the extent to which the defendant actually did so. 180
Professor Yokoyama argues that it is a mistake for courts to treat Zippo
as an all-purpose test for Internet jurisdiction cases. 181 Yokoyama points
out that Zippo itself involved the more limited issue of specific jurisdiction
in a trademark dispute case, yet courts have applied the sliding scale test to
other kinds of cases and to general jurisdiction as well. 182 This
"one-sizefits-all approach to Internet jurisdiction" is both too simplistic and
inconsistent with the Supreme Court's personal jurisdiction jurisprudence,
which has produced distinct tests for different substantive issues (such as
breach of contract, products liability, and defamation claims) and for
general jurisdiction. 183
d. PolicyArguments Against Zippo
Professor Richard A. Bales and Suzanne Van Wert argue that Zippo
undermines Congress's policy of promoting e-commerce without
government interference. 184 According to Bales and Van Wert, Zippo's
focus on the medium through which online activity occurs, as opposed to
the conduct of the parties, has chilled e-commerce by leaving online actors
uncertain as to where their activities may subject them to suit.1 85
Professor Allan R. Stein has observed another negative policy effect of
Zippo: the "bizarre" incentives that it has created for web site operators. 186
A web site operator seeking to limit its susceptibility to suit in far away
jurisdictions is encouraged to reduce the utility of its web site by making it
less interactive. 187 For example, a retailer might put product information on
its web site but only take orders over the phone, rather than online, in order
to reduce the retailer's likelihood of being haled into court in another
state. 188 Such behavior, which Zippo encourages, does not benefit any
person or state. 189 Professor Geist has also commented on this incentive
problem and its potentially harmful effect on e-commerce, arguing, as
Professor Stein does, that Zippo inhibits e-commerce by encouraging web
site owners to create passive, rather than interactive, web sites to limit the
owners' likelihood of facing lawsuits in other jurisdictions. 190
questions about the ability of the sliding scale test to measure the kind of
contacts necessary for general jurisdiction. 322
1. Courts that Have Explained Zippo's Shortcomings in the General
a. The Fifth CircuitChangesIts Positionon Zippo
In Revell v. Lidov, the Fifth Circuit disclaimed the Zippo sliding scale test
for general jurisdiction cases. 323
three years earlier in Mink v. AAAA
This was a departure from its decision
Development LLC,324 in which that
court had applied the sliding scale test in its general jurisdiction analysis.
Revell involved a defamation
out of an article that the
defendant had posted on an Internet bulletin board. 325 The plaintiff, Revell,
a Texas resident, brought suit in the Northern District of Texas against
University, which maintained the online bulletin board and has its main
offices in New York.326
Revell argued for both specific and general jurisdiction.32 7
quickly rejected Zippo for general jurisdiction. 32 8
At the beginning of its
general jurisdiction analysis, it made the following observation about
Zippo's limitations in the general jurisdiction context:
While we deployed this sliding scale in Mink v. AAAA Development,
LLC, it is not well adapted to the general jurisdiction inquiry, because
even repeated contacts with forum residents by a foreign defendant may
not constitute the requisite substantial, continuous and systematic contacts
required for a finding of general jurisdiction-in other words, while it
may be doing business with Texas, it is not doing business in Texas. 329
322. See infra Part II.B.1.
323. Revell, 317 F.3d at 471.
324. 190 F.3d 333, 336 (5th Cir. 1999). See also supra notes 261-69 and accompanying
text for further discussion of Mink.
325. Revell, 317 F.3d at 469.
327. See id.at 470, 472. Revell argued that the Caldereffects test supported specific
jurisdiction. See id at 473. The court disagreed, holding that the online posting here, unlike
the newspaper article at issue in Calder,was not sufficiently directed at the plaintiffs home
state. See id; id.at 475 ("Knowledge of the particular forum in which a potential plaintiff
will bear the brunt of the harm forms an essential part of the Calder test."). The court
observed that "Lidov must have known that the harm of the article would hit home wherever
Revell resided. But that is the case with virtually any defamation. A more direct aim is
required than we have here." Id. at 476. The plaintiff had argued that the court should
abandon Zippo for defamation cases because it is in tension with Calder, an argument that
the court ultimately rejected. See id at 471-72. For further discussion of Zippo's potential
incompatibility with Calder,see infra Part III.B.2.
328. See Revell, 317 F.3d at 471.
After dispensing with the sliding scale test, the court next addressed the
issue of whether Columbia's web site was enough to support general
jurisdiction under any other jurisdictional standard. 330 The site allowed
users to subscribe to the ColumbiaJournalismReview, purchase advertising
on the web site or in the journal, and apply electronically for admission to
Columbia. 33 1 The court held that the web site did not support general
jurisdiction. 332 The court's reasoning turned on the substantiality
requirement: 333 While a web site may be a form of continuous presence
everywhere throughout the world, Columbia's web site did not establish
"substantial" contact with Texas. 334
b. The DistrictCourtfor the EasternDistrictofMissouriRecognizes the
In Bell v. Imperial Palace Hotel/Casino, Inc., the plaintiffs sought to
assert general jurisdiction over the defendant hotel corporation based on the
fact that its web site was accessible in their home state, Missouri. 33 5 The
plaintiff sustained an injury in a slip and fall accident in the defendant's
hotel.3 36 The cause of action therefore arose in Nevada (the location of the
hotel). 337 The plaintiffs sought to assert personal jurisdiction by alleging
that the defendant solicited business in Missouri via its web site. 338 The site
offered information about the hotel and invited customers to make
reservations either through a toll free telephone number or online. 339
Because a broad view of Internet-based jurisdiction could subject those
who maintain web sites to personal jurisdiction in every forum in the
country, the court felt the need to proceed cautiously. 340 Given these high
stakes, the court was reluctant to give too much weight to the Zippo test. 341
The court's analysis implied that the sliding scale was too simplistic to
handle general jurisdiction: "The analysis cannot begin and end with the
'active' and 'passive' labels." 34 2
The Bell court did not reject Zippo as strongly as the Fifth Circuit did in
Revell.34 3 However, it suggested that the sliding scale test should have at
most a limited role in general jurisdiction analysis. 344 The court stated that
the Zippo test "may be a relevant factor in assessing general
jurisdiction. '345 But that relevance requires more than just a certain kind of
web site: "The fact that a site is classified as 'interactive' is irrelevant to
the analysis of general jurisdiction if no one from the forum state has ever
used the site." 346 In fact, the court stated that "much more" contact with the
forum than the maintenance of an interactive web site is necessary to
establish general jurisdiction. 34 7
i. Commentary on the Quantity of the Contacts/Substantiality Issue
Bell raises an issue that commentators and other courts have also noted:
The sliding scale may not adequately measure the quantity and
substantiality of a defendant's contacts with the forum. 348
The Eighth Circuit has observed that "[u]nder the Zippo test, it is possible
for a Web site to be very interactive, but to have no quantity of contacts. In
other words, the contacts would be continuous but not substantial.'"34 9 The
Fifth Circuit has made a similar observation, noting that a web site can be a
form of continuous and systematic contact with the forum, but not
necessarily a substantial contact.3 50
Carlos J.R. Salvado has noted this quality of web site versus quantity of
contacts problem: 35 1 "The Zippo scale does nothing to discover the actual
intended contacts with the forum by a defendant's use of a web site. What
it does do is attempt to measure the potential of a website to be used by a
defendant in a particular way. '352 Salvado argues that, while the qualitative
nature of the defendant's web site may be dispositive in some cases, in most
situations courts must supplement the Zippo test in order to be able to
analyze the defendant's actual, intended contacts with the forum.3 53
Professor Yokoyama has also commented on the quantity versus quality
of contacts issue. 354 He argues that the general jurisdiction analysis must
look beyond the potential for marketing and sales that an interactive web
site provides. 3 55 Simply maintaining an "interactive" web site, even one
that targets the forum state, is not enough to create general jurisdiction. 356
To decide whether general jurisdiction exists, a court must look to the
quantity of business that the defendant does with the forum state and
determine whether the business generates continuous and substantial
revenue. 3 57
2. Courts that Have Declined to Apply Zippo to General Jurisdiction
a. Sixth Circuit
The Sixth Circuit applied Zippo to specific but not general jurisdiction in
Bird v. Parsons.358 The case involved a dispute over an Internet domain
name; the plaintiff argued that the defendant was subject to suit in the
forum (Ohio) because the defendant had registered 4666 domain names
there and its web site was available there. 359
The court clearly applied the sliding scale test to its specific jurisdiction
analysis. 360 It cited Zippo to support the assertion that the defendant's
doing business with forum residents via its web site made it subject to
specific jurisdiction under the sliding scale test.3 61 But the court did not
refer to Zippo or apply the sliding scale test in addressing general
First, the court applied Helicopteros and found that the defendant's
contacts with Ohio were similar in scope to those that the Supreme Court
had held inadequate for general jurisdiction in that case. 363 It then cited
Cybersell,Inc. v. Cybersell,Inc.364 for the proposition that a web site alone
is insufficient to establish general jurisdiction.3 65 The ability of visitors to
register domain names on the site did not change the result; the fact that the
site enabled the defendant to do business with forum residents was not
At least one scholar sees Bird as an indication that Zippo is on the way
out.367 According to Awoyemi, the Sixth Circuit paid lip service to Zippo
while actually discarding the sliding scale test; the defendant's interactive
web site had "virtually nothing" to do with the outcome in Bird.368 Bird is
therefore yet another sign that litigants cannot look to the sliding scale test
for dependable guidance on personal jurisdiction issues.369
Bird is not the only case in which a court has bypassed Zippo in
addressing Internet-based general jurisdiction. In Hockerson-Halberstadt,
Inc. v. Costco Wholesale Corp.,370 the Eastern District of Louisiana did so
as well, citing both Internet and non-Internet cases in its analysis, but not
Zippo. The case involved an alleged patent infringement, and the
defendant, Costco, had no non-Internet contacts with Louisiana, the forum
state. 37 1 Because the suit did not arise out of Costco's Internet contacts
with Louisiana, the only potential ground for personal jurisdiction was
general jurisdiction based on Costco's rather limited online sales to the
state's residents. 372
The court found personal jurisdiction to be lacking.37 3 In doing so, it not
only ignored the Zippo sliding scale, but did not consider the quality of
Costco's web site at all. 374 Instead, the court zeroed in on the quantity of
the wholesaler's Internet sales in Louisiana (or lack thereof), citing both
Internet and non-Internet cases in which courts declined to exercise general
jurisdiction over out of state defendants with similarly small volumes of
sales to the forum.375
Although the court did not apply Zippo, it did address the issue of basing
general jurisdiction on Internet activity, observing that
365. See Bird,289 F.3d at 874.
366. See id.
367. See Awoyemi, supranote 131, at 55.
368. See id.
369. See id.
370. No. 91-1720, 2000 U.S. Dist. LEXIS 8290, at *7-*10 (E.D. La. June 5, 2000).
371. See id. at *3, *7. Costco is a Washington corporation with its principal place of
business in Washington State; at the time of the case it had never operated a warehouse in
Louisiana and had no bank accounts, property, offices, or agents there. Id. at *3.
372. See id. at *3-*4. In the approximately two years leading up to the decision, Costco
had shipped $32,252.32 worth of merchandise from online sales to Louisiana, an amount that
represented less than 0.0000008 of the company's total sales during that time period. See id.
373. ida.t *10.
374. See id. at *7-*9.
375. See id. at *7-*8.
[t]o subject a nonresident corporate defendant to suit in Louisiana solely
on the basis of a miniscule number of intemet sales that are unrelated to
the cause of the plaintiff's alleged injury would render established
jurisdictional boundaries meaningless. Further, defendants that operate
twoepbrseitdeisctawccitehssainbylecteortaoinnltiynewphuerrcehtahseeyrsmwaoyublde sbuebjdeecptrtiovesduiot.f37t6he ability
With this statement, the court touched on what are perhaps the two most
widely feared dangers of excessively broad Internet-based jurisdiction: the
erosion of traditional geographically based limitations on courts'
jurisdictions, and a lack of foreseeability for online actors. 377 The latter
issue is a problem because businesses engaged in e-commerce need some
predictability regarding where they are subject to jurisdiction.378
While uncertainty is troubling due to economic efficiency concerns, the
breakdown of jurisdictional boundaries raises serious constitutional
issues. 379 After all, as Salvado has explained, "The existence of boundary
lines between states is a fact of our constitutional life and their significance
to each other lies at the core of Federalism .... Our legal system is, and
always will be, based upon boundaries." 3 80 A very broad conception of
Internet-based jurisdiction could effectively destroy the idea that states have
geographically limited judicial power.381 As the Fourth Circuit put it,
"notions of limited State sovereignty and personal jurisdiction would be
Perhaps more common than cases clearly embracing the Zippo sliding
scale for general jurisdiction, 383 or explicitly rejecting it for that purpose,3 84
are those that have made it one part of a multifactor, hybrid analysis. The
typical hybrid framework involves assessing the quality of the defendant's
web site under Zippo and then measuring the level of the defendant's
nonInternet contacts with the forum.3 85 Some courts that have adopted this
kind of hybrid approach have done so explicitly, announcing that they are
formulating a new test. 386 And while some courts have recognized the need
for hybrid analysis in the specific jurisdiction context,3 87 others have gone
to a hybrid analysis because of Zippo's potential incompatibility with the
traditional general jurisdiction framework. 3 88 The reasoning of hybrid
approaches has been persuasive, and several commentators have advocated
1. Cases that Have Adopted a Hybrid Framework but Not Exercised
a. Third Circuit
Toys "R" Us, Inc. v. Step Two, S.A. involved a series of trademark
violation and cybersquatting claims by Toys "R" Us against Step Two, a
Spanish toy store corporation. 390 Toys "R" Us acquired a subsidiary that
operated a network of stores under the name "Imaginarium"; Step Two also
had stores called "Imaginarium. ' '39 1 Both companies registered Internet
domain names with variations on the word "Imaginarium." 3 92 Four of Step
Two's web sites allowed visitors to make online purchases. 393 The
defendant had few contacts with the forum state, New Jersey, other than
shipping to Spain two orders placed by New Jersey residents. 394 In its
decision, the Third Circuit directly addressed only the issue of specific
jurisdiction, although it used the broader term "personal jurisdiction"
throughout its analysis.395
The Toys "R" Us court cast its analysis largely in terms of the traditional
"purposeful availment" test, 396 although it cited Zippo as well. 397 The court
observed that other circuits had applied purposeful availment tests that were
consistent with the Zippo sliding scale. 398 Purposeful availment analysis is
necessary because, without purposeful availment, the mere operation of a
commercially interactive web site should not be enough to subject a
defendant to personal jurisdiction everywhere in the world. 399 To
determine whether there has been purposeful availment, the Toys "R" Us
court indicated that a court may consider the defendant's relevant
nonInternet activities as well. 400 The Toys "R" Us court reaffirmed the
importance of Zippo, citing it for the proposition that a court should make a
case-by-case assessment of the nature and quality of the defendant's
contacts with the forum. 40 1 However, the court did not feel the need to
determine the precise mix of Internet and non-Internet contacts necessary
for personal jurisdiction,40 2 as the plaintiff had not been able to show the
level of non-Internet contacts necessary for purposeful availment.40 3 The
court remanded for limited jurisdictional discovery. 4 04
b. Eighth Circuit
The Eighth Circuit crafted a hybrid approach to Internet-based general
jurisdiction in Lakin v. PrudentialSecurities, Inc.40 5 Lakin involved a
series of claims-negligence, breach of contract, and breach of fiduciary
duty-all of which were "entirely unrelated" to defendant Prudential's
activities in Missouri, the forum state. 4 06 Those contacts consisted of home
equity loans that Prudential had extended to Missouri residents and the fact
that Prudential's web site was accessible in Missouri. 40 7
Before performing its general jurisdiction analysis, the court voiced its
approval of the use of Zippo in specific jurisdiction cases, noting that a
"great majority" of cases had adopted it for that purpose. 40 8 However, the
court noted the split of authority40 9 regarding Zippo's applicability in
general jurisdiction cases, and it sided with those courts that limited their
use of the sliding scale to specific jurisdiction. 4 10 The court decided to keep
the sliding scale as "an important factor" in its analysis; this way, the nature
and quality of the defendant's contacts with the forum would be one of a
variety of considerations in the personal jurisdiction analysis. 4 11
The court based its decision on its belief that the sliding scale test does
not mesh perfectly with traditional general jurisdiction doctrine. 4 12 In the
general jurisdiction context, a court must consider both the nature and
quality of the contacts, as well as the quantity of the contacts. 4 13 But
"[u]nder the Zippo test, it is possible for a Web site to be very interactive,
but to have no quantity of contacts. In other words, the contacts would be
continuous, but not substantial. This is untenable in a general jurisdiction
analysis." 4 14 The Lakin court's analysis is based on the difference between
contacts that are only continuous and systematic and those that are
substantial as well. 4 15 Zippo alone is inadequate for general jurisdiction
analysis because it only measures the quality of contacts and not the
The court announced a simple two-part hybrid test as its solution.41 7
First, it applied Zippo to analyze the quality of Prudential's Internet
contacts with Missouri, and then it considered the quantity of those
contacts. 4 18 Under the sliding scale analysis, the court determined that
Prudential's site fell into the middle category, "a sophisticated, interactive
Web site in which a user can exchange information with the host
computer." 4 19 The web site therefore made it possible for Prudential to
have continuous and systematic contacts with Missouri. 4 20 But that alone
would not be enough to establish general jurisdiction; the court still needed
to consider the quantity of contacts that actually occurred through the site,
which it was unable to do because the trial court had not permitted
jurisdictional discovery. 42 1
412. See id. at 712.
415. The Supreme Court's original general jurisdiction case stated that the test was
whether the defendant's contacts were substantial. See Perkins v. Benguet Consol. Mining
Co., 342 U.S. 437, 447 (1952). But in a later case, the court recast the test in terms of
whether the contacts are "continuous and systematic." See Helicopteros Nacionales de
Colom., S.A. v. Hall, 466 U.S. 408, 416 (1984). For the importance of this distinction, see
416. See Lakin, 348 F.3d at 712.
417. See id.
418. Id. For an endorsement of the Lakin test, see Woeste, supranote 318, at 809.
419. Lakin, 348 F.3d at 712. The site allowed users to view information on Prudential
financial services, email the company, set up an online account, and apply online for home
equity loans and other lines of credit. Id.
421. See id. Relevant contacts would include the number of forum residents that visited
the site, requests for information, responses to those requests, online loan applications, and
loans resulting from online applications. Id. The court ultimately remanded for jurisdictional
discovery. Id.at 714.
c. The Fourth CircuitAdapts TraditionalMinimum ContactsDoctrine to
The Fourth Circuit announced a hybrid framework of its own in ALS
Scan, Inc. v. DigitalService Consultants,Inc.,422 a copyright violation case.
ALS was primarily a specific jurisdiction case, although the court did
address the issue of Internet-based general jurisdiction as well. 423 The court
began by noting the potential danger of excessively broad personal
jurisdiction based on Internet activities: Such an approach could lead to
universal personal jurisdiction, eviscerating traditional notions of limited
state sovereignty and personal jurisdiction.424 With those concerns in mind,
the court revised Zippo's sliding scale test:42 5
[W]e conclude that a State may, consistent with due process, exercise
judicial power over a person outside of the State when that person (1)
directs electronic activity into the State, (2) with the manifested intent of
engaging in business or other interactions within the State, and (3) that
activity creates, in a person within the State, a potential cause of action
cognizable in the State's courts. 426
Other hybrid frameworks tend to keep the different facets of the analysis
(such as Internet and non-Internet contacts or Zippo and conventional
minimum contacts framework) separate and discrete.4 27 The ALS test is
different because it effectively blends the two components into one; the
language of the test echoes both Zippo and traditional minimum contacts
staples such as Calder428 and Burger King.429 As the U.S. District Court
for the Eastern District of Virginia observed about the Fourth Circuit's
A comparison of this formulation to the original Zippo test indicates that
the ALS test emphasizes that requirement of purposeful targeting of a
particular forum, not just the level of interactivity. Under the ALS test,
the defendant must direct activity into the forum state, with the intent to
engage in business within the state. As the ALS panel makes clear,
personal jurisdiction requires "purposeful availment," that is "purposeful
conduct directed at the State." 430
Both the ALS hybrid itself and the Raju court's explanation of it show the
influence of Calderand BurgerKing.4 3 1 The first two elements of the ALS
test, directing electronic activity into the state with the manifested intent of
engaging in business or other interactions there, 432 are essentially a Burger
King-like purposeful availment analysis.4 33 Raju's emphasis on the
defendant's intent to engage in business in the forum 434 is reminiscent of
Burger King's observation that a defendant who intentionally establishes a
certain level of contacts has "availed himself of the privilege of conducting
business" in the forum.4 35
The ALS framework also reflects the reasoning of Calder.436 Calder
upheld jurisdiction because the defendant's "intentional ... actions were
expressly aimed at" the forum. 4 37 ALS requires "a manifested intent" of
engaging in business or other interactions with the forum and asks whether
the defendant directed electronic activity into the forum. 438 The third prong
of the ALS framework (whether the defendant's activity creates a potential
cause of action in a state resident) bears some resemblance to Calder's
effects test, which upheld jurisdiction because the defendants there knew
that the harmful effects of their conduct would be felt in the forum. 439
2. Courts that Have Asserted General Jurisdiction Based on Hybrid
Although the Lakin and ALS courts refused to assert general jurisdiction
on the records before them, 440 other courts have upheld general jurisdiction
based on hybrid analyses.44 1
a. EasternDistrictof Texas
The Eastern District of Texas upheld general jurisdiction using a hybrid
analysis in Mieczkowski v. Masco Corp.,442 a products liability case. The
defendant Masco had little physical presence in Texas-it had no offices,
employees, agents, or property there and did not advertise there. 44 3
However, in the six years leading up to the case, Masco had shipped over
5.7 million dollars worth of merchandise to Texas, and twice a year it did a
direct mailing to its existing customers in the state. 444 Masco also
maintained a web site that was, at the time, accessible to approximately 2.2
million Texans.44 5
Internet-based personal jurisdiction was an issue of first impression in
both the Eastern District of Texas and the Fifth Circuit.44 6 The district
court adopted Zippo, and though it observed that the majority of cases
addressing the issue were specific jurisdiction cases, it saw "no reason"
why the sliding scale test should not apply to general jurisdiction as well. 447
The court found Masco's web site to be in the middle of the Zippo scale
(interactive). 44 8 It was "designed to solicit business in a manner that
exceed[ed] traditional notions of advertising." 44 9 However, the court did
not reach the issue of whether the web site alone would have been enough
to support general jurisdiction.4 50 Instead, it employed a hybrid framework,
assessing both the nature of the web site and the "traditional business
contacts" that Masco had with Texas.4 51 These two sets of contacts, taken
together, were continuous, systematic, and substantial enough to subject
Masco to general jurisdiction in Texas. 452
PublicationsInternational,Inc. v. Burke/Triolo, Inc.453 is another case in
which a district court used a hybrid analysis to uphold general jurisdiction
based in part on a defendant's Internet contacts with the forum. The
plaintiff, Publications International, sued Burke for breach of contract and
copyright violation, alleging that Burke's web site had unlawfully used
Publications International's photographs. 4 54 The plaintiff, an Illinois
corporation, brought suit in the U.S. District Court for the Northern District
of Illinois; the defendant was a California corporation. 4 55
The court performed a straightforward, two-step analysis. It evaluated
the quality of the defendant's web site under the Zippo sliding scale, and it
then considered the defendant's non-Internet contacts with the state. 456 The
web site fell into Zippo's middle category; the court characterized it as
"promotional" in nature and as an "intentional and continuous business
contact. '45 7 The defendant's non-Internet contacts were also "intentional
and continuous" (as opposed to "incidental and sporadic"). 458 Therefore,
general jurisdiction was proper and consistent with "traditional notions of
fair play and substantial justice. '459
D. Summary ofthe Zippo Split
This part of the Note examined the split among federal courts over
whether to apply the Zippo test to general jurisdiction. Although most
courts apply Zippo in at least some circumstances, 460 many courts have
determined that the sliding scale test is inappropriate for general
jurisdiction.4 61 Still other courts have sought to adapt minimum contacts
analysis to the Internet age by combining Zippo with traditional minimum
contacts factors in a hybrid analysis.462
452. See id.
453. 121 F. Supp. 2d. 1178, 1183 (N.D. Ill. 2000).
454. Id. at 1181.
455. See id.
456. See id. at 1182-83.
458. Id.at 1183.
459. Id. The court also found specific jurisdiction. Id. at 1182.
460. For a list ofappellate court cases that have applied Zippo, see supranote 208.
461. See supra Part I.B.
462. See supra Part II.C.
III. COURTS SHOULD ABANDON ZIPPOAND REFOCUS ON TRADITIONAL
MINIMUM CONTACTS STANDARDS IN GENERAL JURISDICTION CASES
Part III of this Note argues that courts should stop trying to contort
general jurisdiction analysis into the format of Zippo's sliding scale test.
There are several reasons to abandon Zippo in general jurisdiction cases.
First, Zippo itself was a specific jurisdiction case.4 63 There is reason to
doubt whether the sliding scale test is well-suited to handling general
jurisdiction, an issue which the court that created the test did not face. 4 64
Second, the Zippo test is inconsistent with and less protective of due
process rights than the Supreme Court's established general jurisdiction
standards. 4 65 Finally, while some courts and commentators have sought to
prolong Zippo's vitality by making it part of a hybrid framework, the
sliding scale test adds little or no value to those analyses. 466
This Note proposes that courts apply a more traditional minimum
contacts analysis when Internet contacts are at issue in a general jurisdiction
case. Courts should determine whether the defendant purposefully availed
itself of the benefits and privileges of conducting activities in the forum
state467 and whether the defendant's contacts with the forum state are
sufficiently continuous, systematic, and substantial to support general
jurisdiction. 46 8 If a court determines that the defendant's contacts support
jurisdiction, it must then consider whether the exercise of jurisdiction would
be reasonable. 46 9 Through a web site, an out of state defendant could
potentially create contacts with the forum that, taken together with other,
non-Internet contacts, might support general jurisdiction. But the web site's
level of interactivity should carry little, if any, weight in the analysis.
A. Zippo Was a Specific JurisdictionCase
The Zippo plaintiff argued only for specific jurisdiction, conceding that
the court did not have general jurisdiction.470 The court therefore did not
have to address the issue of whether the defendant's web site could have
supported general jurisdiction.47 1 By failing to limit the Zippo holding to
its facts and apply the sliding scale only to specific jurisdiction cases, courts
have created a confusing and inconsistent body of case law. 47 2 The Zippo
court itself deserves some of the blame for this confusion. Although the
court made clear at the beginning of its opinion that the only issue before it
463. See Zippo Mfg. Co. v. Zippo Dot Corn, Inc., 952 F. Supp. 1119, 1122 (W.D. Pa.
1997) (stating that the plaintiff did not argue for general jurisdiction and conceded that, if
personal jurisdiction existed in the case, it would be specific jurisdiction).
464. See infra Part III.A.
465. See infra Part III.B.
466. See infra Part III.C.
467. See supraPart I.A.2.
468. See supraPart I.A.3.
469. See supraPart I.A.3.b.
470. Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1122 (W.D. Pa. 1997).
471. See id.
472. See Awoyemi, supranote 131, at 38.
was specific jurisdiction, 473 it presented the sliding scale test almost entirely
in terms of the broader phrase "personal jurisdiction," which could indicate
general jurisdiction, specific jurisdiction, or both. 474
Because the Zippo test was not created to address the constitutional
questions implicit in a general jurisdiction analysis, there is reason to doubt
its suitability for that task. The requirements of specific jurisdiction and
general jurisdiction are significantly different. 475 There is, therefore, reason
to question the ability of any "one size fits all" test to encapsulate both, 4 76
especially when the court that created the test was not faced with both
B. Zippo Is Inconsistentwith the Supreme Court'sGeneralJurisdiction
The Zippo sliding scale test is both inconsistent with the Supreme Court's
established general jurisdiction framework and under-protective of due
The Due Process Clause of the Fourteenth
limits the ability of courts to exercise personal jurisdiction over out of state
defendants who do not have sufficient contacts with the forum in which the
court sits.4 77 The threshold for establishing general jurisdiction is
"extremely high. '478 General jurisdiction exists only when the out of state
defendant's forum contacts are continuous, systematic, and substantial.4 79
1. Zippo Is Inconsistent with Helicopterosand Perkins
It is doubtful that merely maintaining a web site that is accessible in a
forum is a contact substantial enough to confer general jurisdiction. In fact,
courts and commentators have widely rejected 4 80 and even ridiculed 481 the
473. See Zippo, 952 F. Supp. at 1122.
474. See id.at 1124 ("[T]he likelihood that personal jurisdiction can be constitutionally
exercised is directly proportional to the nature and quality of commercial activity that an
entity conducts over the Internet.... If the defendant enters into contracts with residents of
a foreign jurisdiction that involve the knowing and repeated transmissions of computer files
over the Internet, personal jurisdiction is proper.... A passive Web site... is not grounds
for the exercise [of] personal jurisdiction."). Additionally, the Zippo court cited only
specific jurisdiction cases. Woeste, supranote 318, at 797.
475. See supraPart I.A.
476. Cf Rhodes, supra note 193, at 200 ("The courts should. . . not be constrained by the
elusive quest for a comprehensive standard ....); Yokoyama, supra note 110, at 1173-76
(arguing against a single, all-encompassing standard for Internet jurisdiction cases).
477. See supraPart I.A. 1.
478. Salvado, supranote 150, at 96.
479. The Supreme Court has used these terms inconsistently, creating some confusion.
See supra Part I.A.3.c. However, the case law shows that general jurisdiction requires
contacts that are substantial, not merely continuous and systematic. Condlin, supra note 21,
480. See supranotes 197-203 and accompanying text.
481. See, e.g., Hy Cite Corp. v. Badbusinessbureau.com, 297 F. Supp. 2d 1154, 1161
(W.D. Wis. 2004)
("Plaintiff's argument that general jurisdiction exists in this case borders
on the frivolous.").
notion of basing general jurisdiction solely on the operation of a web site.
The Zippo test measures only the nature of a web site, not the quantity or
substantiality of the defendant's contacts with the forum.4 82 Because of
this, the Zippo sliding scale ultimately reveals only a defendant's ability to
create contacts with the forum, not the defendant's actual contacts. 48 3 As
one court rightly observed, "[t]he fact that a site is classified as 'interactive'
is irrelevant to the analysis of general jurisdiction if no one from the forum
state has ever used the site." 4 84
It is therefore unsurprising that Zippo is inconsistent with Helicopteros,
the Supreme Court's most recent general jurisdiction case, and Perkins, the
only case in which the Court has found general jurisdiction. Under the
Zippo sliding scale, personal jurisdiction is proper where a defendant
"clearly does business over the Internet... enter[ing] into contracts with
residents of a foreign jurisdiction that involve the knowing and repeated
transmission of computer files over the Internet. '4 85 But to apply this
terminology to a general jurisdiction analysis begs the key question: Are
the contacts continuous, systematic, and substantial? 4 86 Do "knowing and
repeated" transactions entail contacts that are "continuous and systematic"?
Does a defendant's "clearly doing business over the internet" show
"substantial" contacts with the forum? The plain meaning of these words
suggests that Zippo sets a lower bar than Helicopterosand Perkins. Even a
transaction that occurs repeatedly may happen less frequently than
"continuously and systematically"; the fact that a defendant is "clearly
doing business" does not necessarily mean the defendant is conducting a
substantial amount of business.
In Helicopteros, Helicol was "clearly doing business" in the state of
Texas. The company sent its chief executive officer there on business,
purchased equipment from a Texas supplier, and sent its employees to
Texas for training. 48 7 Helicol presumably did these things "knowingly,"
and it did them repeatedly. Yet Helicol's contacts with Texas were
insufficient for the Supreme Court to confer general jurisdiction. 488 Had
Helicol established the same or similar contacts with Texas over the
Internet, the Zippo test would likely have authorized jurisdiction.
482. See supranotes 348-57 and accompanying text.
483. See Salvado, supra note 150, at 104 ("The Zippo scale does nothing to discover the
actual intended contacts with the forum by a defendant's use of a website. What it does do is
attempt to measure the potential of a website to be used by a defendant in a particular
484. Bell v. Imperial Palace Hotel/Casino, Inc., 200 F. Supp. 2d 1082, 1091-92 (E.D. Mo.
485. Zippo Mfg. Co. v. Zippo Dot Coin, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997).
486. See Helicopteros Nacionales de Colom., S.A. v. Hall, 466 U.S. 408, 416 (1984); see
also Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 447 (1952).
487. See Helicopteros,466 U.S. at 416.
488. See id. at 418.
Because it would confer general jurisdiction over out of state defendants
in situations where the Supreme Court's minimum contacts framework
would not, the Zippo test is under-protective of due process rights.
2. Zippo Is Inconsistent with the CalderEffects Test
The Zippo test can also produce results inconsistent with established
specific jurisdiction jurisprudence. For example, the Supreme Court held in
Calder that two National Enquirer employees were subject to specific
jurisdiction in California because they had allegedly libeled a resident of
that state. 489 Calder shows that an out of state defendant can become
subject to personal jurisdiction in a forum that he has targeted with conduct
that causes a foreseeable, harmful effect therein. 490
If the allegedly libelous article at issue in Calder had appeared online
instead of in print, the Zippo test would have commanded a result different
from the one that the Supreme Court reached. A libelous Internet posting
could target a certain forum (for example, by being local in focus and
scope) and cause injury that would be felt primarily in that place, just as the
harm that the National Enquirer article caused to Shirley Jones was felt
primarily in California. 49 1 And a libelous posting could appear on an
entirely "passive" web site; in fact, it is probably more likely that a libelous
site would be "passive" rather than "interactive" or "clearly doing business
over the intemet" 49 2 (assuming that an online retailer is less likely to libel
someone). Yet the Zippo test would instruct a court to disregard Calderand
only examine the nature of the web site: "A passive Web site. . . is not
grounds for the exercise [of] personal jurisdiction." 4 93
C. HybridFrameworksAre a PoorSolution
Recognizing Zippo's various shortcomings, many courts and
commentators have sought to shore up the sliding scale test by combining it
with other factors in multipronged, hybrid analyses. 4 94 For example,
Salvado argues that "[t]he Zippo scale must be supplemented in order to
become useful. '4 95 He proposes a two-pronged test in which a court first
uses Zippo to determine the nature of the web site and then looks for
"something more" to determine whether the defendant has intentionally
intensified its Internet contacts with the forum.49 6
489. See Calder v. Jones, 465 U.S. 783, 791 (1984). For more on Calder, see supra Part
490. See Calder,465 U.S. at 788-90.
491. See id.at 789-90.
492. Cf Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa.
494. See supra Part II.C.
495. Salvado, supra note 150, at 105.
496. See id. at 113-14.
Salvado's proposal is a fairly typical hybrid framework: Apply the Zippo
test, consider other contacts (Internet or non-Internet), and then determine
whether everything taken together supports the exercise of personal
jurisdiction.49 7 But Zippo appears to add little if any value to the general
jurisdiction analysis as part of these hybrid tests. If factors other than the
quality of the web site (such as other Internet contacts or non-Internet
contacts) are continuous, systematic, and substantial, then general
jurisdiction exists under Perkins and Helicopteros. It would not be
necessary to evaluate the quality of the web site in order to make that
determination, so Zippo would add no value. If, on the other hand, those
other factors by themselves are insufficient to establish general jurisdiction,
then the court is left with a difficult task. It must determine how much
weight to give the nature of the web site in determining whether the site tips
the scales towards allowing jurisdiction.
For whatever role the court gives Zippo, it will probably receive little
benefit in return. The web site will most likely fall into Zippo's poorly
defined middle category, 4 98 the category that has created a "black hole of
doubt and confusion." 49 9 And to the extent that terms such as "passive" and
"interactive" have any discernable meaning, that meaning is subject to
change. As Professor Geist has noted, the entire passive versus active
spectrum has shifted since Zippo was decided in 1997.500 A web site that
was considered interactive in 1997 may be considered passive now, creating
the possibility that web site owners need to constantly reevaluate their
positions on the sliding scale. 50 1
Courts have a hard enough time determining whether a defendant's
contacts are continuous, systematic, and substantial enough to support
general jurisdiction. 50 2 Requiring courts to assess the importance of a
"somewhat interactive" web site and then factor this determination into
their analyses would not make the process any simpler or more predictable.
That sort of discredited "totality of the circumstances" test 50 3 would leave
courts with too much flexibility and too little guidance.
497. See supra note 385 and accompanying text.
498. See Geist, supra note 114, at 1379 (observing that most sites fall in the middle
ground of the Zippo scale).
499. Yokoyama, supra note 110, at 1166.
500. See Geist, supra note 114, at 1379-80.
502. See supra notes 72-75, 101-08 and accompanying text for a discussion of the
confusing nature of general jurisdiction.
503. See Condlin, supra note 21, at 137 (noting that the Supreme Court has repeatedly
rejected the notion of a totality of the circumstances test for personal jurisdiction); cf
Yokoyama, supra note 110, at 1174 (observing that, for specific jurisdiction, the Supreme
Court has "refined and tailored [the] personal jurisdiction analysis" in light of the nature of
the plaintiff's claim).
Courts should not apply the Zippo sliding scale test to general
jurisdiction. As discussed above, Zippo is inconsistent with the Supreme
Court's general jurisdiction doctrine and under-protective of due process
rights. 504 Instead of getting bogged down in the Zippo terminology, courts
should return to traditional minimum contacts principles to determine
whether a defendant has (through the Internet or otherwise) established
contacts with the forum state that are continuous, systematic, and
1. A Return to Fundamental Principles
The Supreme Court has made it clear that increases in interstate
commerce and communications do not "herald the eventual demise of all
restrictions on the personal jurisdiction of state courts. ' 50 5 To make those
restrictions relevant and meaningful in the Internet age, and to protect the
due process rights of out of state defendants, 50 6 courts must return to
established minimum contacts jurisprudence. In other words, rather than
getting bogged down in terminology such as "interactive," "passive," and
"doing business," 50 7 courts should return their focus to the issue that the
Supreme Court has deemed critical: whether the defendant has
purposefully availed itself of the benefits and privileges of doing business
in the forum state, thereby invoking the protection of its laws, and whether
the exercise of jurisdiction would be reasonable. 50 8 In a general jurisdiction
case, the defendant's contacts with the forum must be continuous,
systematic, and substantial. 50 9
2. The Fourth Circuit's Solution
The traditional minimum contacts requirements are by no means
incompatible with Internet-related issues or incapable of handling the
challenges of an Internet-based personal jurisdiction case. The Fourth
Circuit successfully applied those traditional requirements to an Internet
case in ALS Scan, Inc. v. Digital Service Consultants, Inc.51 0 Under the
504. See supra Part III.B.
505. Hanson v. Denckla, 357 U.S. 235, 251 (1958). As Professor Geist has observed,
because "technological change is constant, [legal] standards created with specific
technologies in mind are likely to become outdated as the technology changes." Geist, supra
note 114, at 1359.
506. See supra Part I.A.1.
507. See Zippo Mfg. Co. v. Zippo Dot Com, Inc. 952 F. Supp. 1119, 1124 (W.D. Pa.
1997) (laying out the sliding scale test).
508. See supra Part I.A.
509. See supra Part I.A.3.c.
510. 293 F.3d 707 (4th Cir. 2002). For additional discussion of ALS, see supranotes
42239 and accompanying text.
a State may... exercise judicial power over a person outside of the State
when that person (1) directs electronic activity into the State, (2) with the
manifested intent of engaging in business or other interactions within the
cSatuatsee, aonfdac(t3io)nthcaotgancitziavbitlye cinretahtees,Stiantea'specrosuornts.w5i1t1hin the State, a potential
The ALS test borrows concepts from some of the Supreme Court's
seminal personal jurisdiction cases, notably Burger King and Calder.5 12
ALS rephrases the reasoning of those cases into terminology better suited to
Internet cases, while staying faithful to the underlying minimum contacts
principles that the Supreme Court sought to advance.
While the Fourth Circuit claimed to be "adopting and adapting" Zippo,5 13
the ALS test bears little resemblance to Zippo's sliding scale. 514 And that is
ALS's greatest strength: It moves away from the Zippo terminology, which
was confusing and unhelpful 5 15 for anything other than measuring potential
contacts,5 16 and instead offers a framework for evaluating actual contacts.
The ALS test would probably require some modification before it could
work well in a general jurisdiction case. The third prong of the test
examines whether the defendant's contacts created a cause of action in a
forum resident, 5 17 which implies that the test only applies to specific
jurisdiction (jurisdiction based on a cause of action related to the
defendant's contacts with the forum). In a general jurisdiction case, the test
should instead ask whether the defendant's Internet and non-Internet
contacts with the forum are continuous, systematic, and substantial. 5 18
3. General Jurisdiction
Courts and commentators have rightly rejected the idea of basing general
jurisdiction solely on the operation of a web site. 5 19
accessible there. But general jurisdiction also requires contacts that are
substantial, 520 a high threshold that a web site alone does not meet.
As Professor Rhodes has observed, "the better reasoned opinions focus
not on the characteristics of the website, but rather on the nature of the
transactions between the nonresident defendant and residents of the forum
state." 52 1 In other words, as Professor Bales and Van Wert put it, "focus on
conduct rather than medium. '522 A web site is a communication tool, a
vehicle through which a defendant could conceivably create contacts
substantial enough to support general jurisdiction. It is on those other
contacts, whether they are online (such as the downloading of a computer
program) or offline (such as the shipment of a book to the forum to fill an
online order) that the general jurisdiction analysis should focus. Whether
the web site that facilitates those contacts is "active," "passive," or
something in between 523 should not determine the existence of general
The Zippo sliding scale test provided useful guidance to courts struggling
to apply traditional personal jurisdiction principles to a new technology.
But in the years since the test's introduction, its many significant
shortcomings have become apparent. As numerous courts and scholars
have realized, the sliding scale is not the appropriate framework for a
general jurisdiction analysis. Rather than attempt to twist, modify, or
supplement the Zippo test until it appears up to the task, courts should
simply abandon it when addressing general jurisdiction. Courts should
return to fundamental minimum contacts principles and focus on the key
question of whether the defendant's contacts with the forum are sufficiently
continuous, systematic, and substantial to justify subjecting the defendant to
suit in the forum on an unrelated matter. Courts need not determine how
interactive the defendant's web site is in order to answer that question.
520. See supra Part I.A.3.c.
521. Rhodes, supranote 73, at 885.
522. Bales & Van Wert, supra note 173, at 55.
523. See Zippo Mfg. Co. v. Zippo Dot Corn, Inc. 952 F. Supp. 1119, 1124 (W.D. Pa.
1997) (laying out the sliding scale test).
4. 326 U.S. 310 , 316 ( 1945 ) (stating that due process requires that an out of state defendant have "certain minimum contacts" with the forum state in order to support personal jurisdiction).
5. 480 U.S. 102 , 112 ( 1987 ). For further discussion of Asahi, see infra Part I.A.2 .d.
6. Zippo , 952 F. Supp . at 1124.
7. See Burger King Corp. v. Rudzewicz, 471 U.S. 462 , 471 - 72 ( 1985 ) ; cf U.S. Const. amend. XIV, § 1 ("[N]or shall any State deprive any person of life, liberty, or property, without due process of law."). The U.S. Supreme Court has repeatedly reaffirmed this constitutional limitation on jurisdiction . See Asahi , 480 U.S. at 108 ( "The Due Process Clause of the Fourteenth Amendment limits the power of a state court to exert personal jurisdiction over a nonresident defendant."); see also Calder v . Jones , 465 U.S. 783 , 788 ( 1984 ); World-Wide Volkswagen Corp . v. Woodson, 444 U.S. 286 , 291 ( 1980 ) ("The Due Process Clause of the Fourteenth Amendment limits the power of a state court to render a valid personal judgment against a nonresident defendant." ); Int' Shoe , 326 U.S. at 316.
8. 326 U.S. at 316.
9. Id . at313 .
10. Id . at 312.
11. Id .
57. See id.at 477 (quoting World-Wide Volkswagen Corp . v. Woodson, 444 U.S. 286 , 292 ( 1980 )).
58. Id .
59. Id . For more on the reasonableness requirement, see infra Part I.A.3 .b.
60. See Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102 , 105 ( 1987 ).
61. See id. at 105-06.
62. See id. at 106.
63. See id.
64. Id . at 116.
65. Id . at 112 (citing Burger King Corp . v. Rudzewicz, 471 U.S. 462 , 475 ( 1985 )) (emphasis omitted).
66. Id .
67. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 , 297 ( 1980 ).
68. Id .
69. Asahi , 480 U.S. at 112.
70. See Int'l Shoe Co . v. Washington, 326 U.S. 310 , 318 ( 1945 ).
71. Condlin , supra note 21, at 58; see also Helicopteros Nacionales de Colom., S.A. v. Hall, 466 U.S. 408 ( 1984 ).
72. See Int'l Shoe , 326 U.S. at 318.
73. See Charles W. Rhodes , Clarifying GeneralJurisdiction,34 Seton Hall L. Rev . 807 , 808 ( 2004 ).
74. See 16 James Wm.Moore et al., Moore's Federal Practice § 108.41  (3d ed. 2005 ) ("Beyond Perkins and Helicopteros, the Supreme Court has offered little guidance on the issue of general jurisdiction ...".).
75. See Rhodes, supra note 73 , at 808 , 810 ("Unfortunately, neither decision [Helicopteros or Perkins] provided much illumination regarding the due process strictures for general in personam jurisdiction, as the Court never developed either a theoretical foundation or a framework for resolving this query .... The resulting lack of predictability contravenes notions of both fairness and efficiency .. ");see also Walter W . Heiser, Toward Reasonable Limitations on the Exercise of General Jurisdiction ,41 San Diego L. Rev. 1035 , 1041 - 42 ( 2004 ) (arguing that the Supreme Court has provided limited guidance and a lack of direction regarding the reasonableness inquiry in general jurisdiction cases).
76. 342 U.S. 437 ( 1952 ). The Court did not uphold general jurisdiction in the only other case in which it focused on the issue . See Helicopteros ,466 U.S. at 418-19.
77. Perkins , 342 U.S. at 439.
89. See Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102 , 113 - 14 ( 1987 ) (listing factors that determine the reasonableness of asserting personal jurisdiction over an out of state defendant); see also 16 Moore et al ., supranote 74 , § 108 .41.
90. Asahi , 480 U.S. at 113 ( citing World-Wide Volkswagen Corp . v. Woodson, 444 U.S. 286 , 292 ( 1980 )) ; see also Burger King Corp . v. Rudzewicz, 471 U.S. 462 , 477 ( 1985 ) (listing the same factors as Asahi) .
91. See BurgerKing , 471 U.S. at 477.
92. See id.
93. See Heiser, supra note 75 , at 1041. Professor Walter W. Heiser believes, however, that a clearer picture of the meanings ofthe reasonableness requirement is emerging from the lower courts . Id. at 1042.
94. 16 Moore et al., supra note 74 , § 108 .41. Reasonableness is a more important factor in specific jurisdiction cases . Id. While Asahi and Burger King were specific jurisdiction cases, there is a clear consensus among the federal circuits that the reasonableness inquiry applies to general jurisdiction as well . See Metro. Life Ins . Co. v. Robertson-Ceco Corp., 84 F.3d 560 , 573 ( 2d Cir . 1996 ). However, the Second Circuit has interpreted Burger King as standing for the proposition that dismissals based on unreasonableness should be "few and far between." Id . at 575.
95. Cf Met Life, 84 F.3d at 573 -75 (finding sufficient contacts for general jurisdiction, but declining to assert general jurisdiction because doing so would be unreasonable ).
96. See id.
97. Id . at 564- 65 . Met Life brought suit in Vermont for statute of limitations purposes . Id. at 565.
98. See id. at 571-73.
99. Id . at 575.
100. Id .at 574-75.
101. Int'l Shoe Co . v. Washington, 326 U.S. 310 , 318 ( 1945 ).
102. See supraPart I. A.3.a.ii.
103. See Condlin, supra note 21 , at 71.
104. Id .
105. Id .at 72.
106. Id .at 100.
107. Id . at 120. Condlin claims that lower courts "often find general jurisdiction present when a defendant has engaged in just about any kind of regular business in a state, no matter how minimal." Id.at 124 & n.474 (listing courts that have done this) . One student commentator has drawn the opposite conclusion, arguing that the lack of Supreme Court guidance has caused courts to "virtually abandon" general jurisdiction . See Kristina L. Angus, Note, The Demise of GeneralJurisdiction: Why the Supreme Court Must Define the Parametersof GeneralJurisdiction ,36 Suffolk U. L. Rev. 63 , 65 ( 2002 ).
108. Condlin , supranote 21 , at 125.
109. See id.at 147.
110. See Dennis T. Yokoyama , You Can'tAlways Use the Zippo Code: The Fallacy ofa Uniform Theory of Internet Personal Jurisdiction ,54 DePaul L. Rev . 1147 , 1148 ( 2005 ). For an explanation of how the Internet functions , see id at 1153-56.
111. Internet World Stats: Usage and Population Statistics, Internet Usage Statistics for the Americas, http://www.internetworldstats. com/stats2.htm (last visited Jan . 19 , 2006 ).
112. U.S. Census Bureau News, Quarterly Retail E-Commerce Sales , 3rd Quarter 2005 ( 2005 ), availableat http://www.census.gov/mrts/www/data/html/05Q3.html.
113. Id .
114. See 16 Moore et al., supranote 74 , § 108 .44 ; see also Michael A. Geist, Is There a There There? Toward Greater Certaintyfor Internet Jurisdiction, 16 Berkeley Tech . L.J. 1345 , 1345 ( 2001 ); Allan R. Stein, PersonalJurisdictionand the Internet: Seeing Due Process Through the Lens of Regulatory Precision , 98 Nw. U. L. Rev. 411 , 429 ( 2004 ) ("The challenge of the Internet is that it has blurred the line between local and global actions.").
115. Stein , supra note 114, at 411.
116. 937 F. Supp . 161 ( D. Conn . 1996 ).
117. See Yokoyama, supra note 110 , at 1156 ( referring to Inset as a "significant precursor" to Zippo).
118. Inset , 937 F. Supp . at 162.
119. Id . at 163.
120. See id. at 162-63.
121. Id . at 164.
122. See id. ("The court concludes that advertising via the Internet is solicitation of a sufficient repetitive nature to satisfy ... the Connecticut long-arm statute .. . thereby conferring Connecticut's long-arm jurisdiction .... ").
123. See infra notes 377-82 and accompanying text.
124. Cf Inset, 937 F. Supp . at 165.
125. Id .
126. Id .
127. Id . at 166.
128. See Yokoyama, supra note 110 , at 1157 (citing TELCO Commc'ns Group, Inc. v. An Apple a Day, Inc ., 977 F. Supp . 404 , 406 (E.D. Va . 1997 ); Heroes, Inc. v. Heroes Found., 958 F. Supp . 1 , 4 (D.D .C. 1996 )).
129. See id. at 1160; see also Geist, supra note 114 , at 1362 ( arguing that Inset's conclusion that creating a web site amounts to purposeful availment in every jurisdiction where the site is accessible "distorts the fundamental principle ofjurisdiction" ).
130. See Yokoyama, supra note 110 , at 1161.
131. See id. at 1159-62; see also Bunmi Awoyemi, Zippo Is Dying, Should It Be Dead?: The Exercise of Personal Jurisdiction by US . Federal Courts Over Non-Domiciliary Defendants in TrademarkInfringement Lawsuits Arising Out of Cyberspace, 9 Marq. Intell. Prop. L. Rev . 37 , 46 ( 2005 ) (referring to Inset's "over-expansion" of the personal jurisdiction doctrine).
132. Yokoyama , supranote 110 , at 1165-66.
141. Id . (citations omitted).
142. Id .at 1125.
143. Id .at 1125-26.
144. Condlin , supranote 21 , at 133; see also Awoyemi, supra note 131 , at 47 ( stating that Zippo was, for a time, the seminal case on Internet-based minimum contacts ); Yokoyama, supra note 110, at 1149.
145. See Yokoyama, supra note 110 , at 1149 ( observing that many courts adopted Zippo in a "zealous and understandable quest to adopt a single standard for all Interet jurisdiction issues" ).
146. Id . at 1160.
147. See id.at 1164.
148. See id.at 1195 ( "The decision in Zippo ...should not be applied to all personal jurisdiction issues involving the Internet.").
149. Id .at 1157.
150. Carlos J.R. Salvado , An Effective PersonalJurisdictionDoctrinefor the Internet , 12 U. Balt . Intell. Prop. L.J. 75 , 103 ( 2002 ).
151. Geist , supra note 114, at 1371; cf World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 , 297 ( 1980 ) (discussing the relevance of foreseeability for personal jurisdiction purposes).
152. See Geist, supranote 114 , at 1371; cf Salvado, supranote 150 , at 76 (rejecting the notion that our legal system must "succumb to cyberspace, accepting it as a distinct area that it can not control" simply because the Internet itself does not respect geographical
170. See id.
171. See id.
172. See Awoyemi, supra note 131 , at 61-62.
173. See id.; see also Richard A. Bales & Suzanne Van Wert , Internet Web Site Jurisdiction , 20 J.Marshall J.Computer & Info. L. 21 , 32 ( 2001 ) (observing that Zippo's "interactive" prong is ambiguous and has created problems for courts attempting to apply it) . Web sites that are "interactive" fall in the middle of the sliding scale, where the court should decide whether to exercise jurisdiction based on "the level of interactivity and commercial nature of the exchange of information that occurs on the Web site." Zippo Mfg . Co. v. Zippo Dot Com, Inc., 952 F. Supp . 1119 , 1124 (W.D. Pa . 1997 ).
174. See Awoyemi, supra note 131 , at 62.
175. Yokoyama , supra note 110, at 1166- 67 . For more on the purposeful availment requirement , see supranotes 55-59 and accompanying text.
176. Geist , supranote 114 , at 1348; see also id.at 1379.
177. See , e.g., Salvado, supranote 150 , at 103.
178. See id.
179. Id .
330. See id.
331. Id . at470 .
332. See id.at 471.
333. For more on the substantiality requirement, see supra Part I.A.3 .c. See also Perkins v. Benguet Consol . Mining Co., 342 U.S. 437 , 447 ( 1952 ) (stating that general jurisdiction requires substantial contacts between the defendant and the forum state ).
334. See Revell, 317 F.3d at 471. The court also declined to exercise specific jurisdiction under the Calder effects test, finding that the web site was not sufficiently directed at the forum . Id. at 475-76.
335. Bell v. Imperial Palace Hotel/Casino, Inc., 200 F. Supp . 2d 1082 , 1084 - 85 ( E.D. Mo . 2001 ).
336. See id.at 1084.
337. See id. at 1084- 85 . The court declined to exercise specific jurisdiction because the plaintiffs did not demonstrate that their cause of action arose out of the defendant's contacts with Missouri . See id.at 1088.
338. Id . at 1085.
339. Id . The plaintiffs made their reservation through a travel agent, not through the web site . Id.
340. See id.at 1091.
341. See id.at 1091-92.
342. Id .at 1091.
343. Compare id. with Revell v . Lidov , 317 F.3d 467 , 471 ( 5th Cir . 2002 ) (stating that Zippo is "not well adapted to the general jurisdiction inquiry" ).
344. See Bell, 200 F. Supp . 2d at 1091 - 92 . By contrast, the court relied heavily on Zippo in its specific jurisdiction analysis . See id.at 1087.
345. Id .at 1091.
346. Idat 1091-92.
347. Id .at 1092.
348. See id. at 1091-92 ( stating that the interactive nature of a web site is irrelevant if no one from the forum has actually accessed the site ).
349. Lakin v. Prudential Sec., Inc., 348 F.3d 704 , 712 ( 8th Cir . 2003 ). For further discussion of Lakin, see infra notes 405-21 and accompanying text .
350. See Revell v. Lidov , 317 F.3d 467 , 471 ( 5th Cir . 2002 ). For further discussion of Revell, see supranotes 323-34 and accompanying text .
351. See Salvado, supra note 150 , at 103-05; see also Jennings, supra note 317 , at 384; Woeste, supra note 318, at 808. This is not to say that the quality of contacts is irrelevant; the Supreme Court has indicated that the general jurisdiction test has both quantitative and qualitative aspects . See Rhodes, supra note 73 , at 816 (describing the substantiality requirement as part of the qualitative analysis).
352. Salvado , supranote 150 , at 104.
376. Id .at *9.
377. See id.
378. Cf Swire, supra note 250 , at 1982 (describing the steps that online businesses have taken to limit their amenity to suit in multiple jurisdictions).
379. Cf Salvado, supra note 150 , at 75.
380. Id .at 75-76; see also ALS Scan, Inc. v. Digital Servs. Consultants, Inc., 293 F.3d 707 , 713 ( 4th Cir . 2002 ) (warning that excessively broad personal jurisdiction based on Internet activities could eviscerate traditional notions of limited state sovereignty).
381. SeeALS, 293F . 3dat713 .
382. Id . For more on the geographical limitations on states' judicial authority, see generally Burnham v . Superior Court , 495 U.S. 604 ( 1990 ).
383. See , e.g.M,ink v. AAAA Dev. Corp. LLC, 190 F.3d 333 , 336 ( 5th Cir . 1999 ).
384. See , e.g.R,evell v. Lidov , 317 F.3d 467 , 471 ( 5th Cir . 2002 ).
385. See Toys "R" Us , Inc. v. Step Two, S.A. , 318 F.3d 446 , 451 - 53 ( 3d Cir . 2003 ) ; see also Lakin v . Prudential Sec., Inc., 348 F.3d 704 , 711 - 12 ( 8th Cir . 2003 ); Publ'ns Int'l, Ltd . v. Burke/Triolo, Inc., 121 F. Supp . 2d 1178 , 1182 - 83 ( N.D. Ill . 2000 ); Mieczkowski v . Masco Corp., 997 F. Supp . 782 , 788 (E.D. Tex . 1998 ).
386. See , e.g., ALS, 293 F.3d at 714 ( "Thus, adopting and adapting the Zippo model , we conclude ....").
387. See id. ; see also Toys "R" Us, 318 F.3d at 451-53 . The Toys "R" Us court observed that "[i]n deciding whether to exercise jurisdiction over a cause of action arising from a defendant's operation of a website, a court may consider the defendant's related non-Internet activities as part of the 'purposeful availment' calculus." Id.at 453.
388. See Lakin, 348 F.3d at 711 -12 (noting problems with applying Zippo to general jurisdiction but making the sliding scale test one of several factors in the analysis ).
389. See Salvado, supra note 150 , at 113-14; see also Jennings, supra note 317 , at 411; Woeste, supra note 318, at 814-15.
390. Toys "R" Us , 318 F.3d at 448 - 49 . "[C]ybersquatting [is] the practice of registering a domain name known to be another's trademark, [in order to sell the] domain name to the trademark holder . " Yokoyama , supranote 110 , at 1168.
391. Toys "R" Us , 318 F.3d at 449.
392. Id .
393. Id .at 450.
394. See id.
395. See id at 451 (stating that specific jurisdiction is the precise issue in the case); id.at 453 (referring to the level of contacts necessary for "personal jurisdiction" ).
396. Compare id.at 452 with Burger King Corp . v. Rudzewicz, 471 U.S. 462 , 475 ( 1985 ).
397. See Toys "R" Us , 318 F.3d at 452.
422. 293 F.3d 707 , 714 ( 4th Cir . 2002 ).
423. See id. at 712 , 715 .
424. See id. at 713; see also supra notes 379-82 and accompanying text.
425. See ALS , 293 F.3d at 714. District courts within the Fourth Circuit have taken notice that ALS introduced a new framework, distinct from the Zippo sliding scale . See Burleson v. Toback , 391 F. Supp . 2d 401 , 409 (M.D.N .C. 2005 )) ; see also Graduate Mgmt . Admission Council v. Raju , 241 F. Supp . 2d 589 , 594 (E.D. Va . 2003 ).
426. ALS, 293 F.3d at 714.
427. See Toys "R" Us , Inc. v. Step Two, S.A. , 318 F.3d 446 , 453 ( 3d Cir . 2003 ) ; see also Publ'ns Int'l, Ltd . v. Burke/Triolo, Inc., 121 F. Supp . 2d 1178 , 1183 (N.D. Ill . 2000 ); Mieczkowski v . Masco Corp., 997 F. Supp . 782 , 788 (E.D. Tex . 1998 ).
428. Calder v. Jones , 465 U.S. 783 ( 1984 ).
429. Burger King Corp. v. Rudzewicz, 471 U.S. 462 ( 1985 ).
430. Raju , 241 F. Supp . 2d at 594.
431. Compareid . andALS, 293 F.3d at 714, with Calder , 465 U.S. at 789-90, andBurger King, 471 U.S. at 473-75.
432. See ALS , 293 F.3d at 714.
433. Cf Burger King, 471 U.S. at 475 ( noting that the requirement of purposeful availment ensures that a defendant will not be haled into a jurisdiction solely on the basis of random, fortuitous, or attenuated contacts); see also Hanson v . Denckla , 357 U.S. 235 , 253 ( 1958 ) ("[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws."). Raju also emphasized the purposeful availment requirement . See Raju , 241 F. Supp . 2d at 594 ( "As the ALS panel makes clear, personal jurisdiction requires 'purposeful availment,' that is 'purposeful conduct directed at the State."' (citation omitted)). For further discussion of the purposeful availment requirement , see supranotes 55-59 and accompanying text.
434. See Raju, 241 F. Supp . 2d at 594.
435. See BurgerKing , 471 U.S. at 476.
436. Compare ALS , 293 F.3d at 714, with Calder , 465 U.S. at 789- 90 . The court in ALS made this comparison itself, noting that "[t]his standard... is not dissimilar to that applied by the Supreme Court in Calder v . Jones." 293 F.3d at 714 (citation omitted) . For further discussion of Calder,see supra Part I.A.2.a .
437. See Calder,465 U.S. at 789.
438. See ALS , 293 F.3d at 714. This prong also bears some similarity to Professor Geist's proposed targeting approach to Internet jurisdiction, which seeks to "identify the intentions of the parties and to assess the steps taken to either enter or avoid a particular jurisdiction." See Geist , supranote 114 , at 1380.
439. Compare ALS , 293 F.3d at 714 ( "[T]hat activity creates, in a person within the State, a potential cause of action cognizable in the State's courts." ), with Calder , 465 U.S. at 789- 90 ( "[T]hey knew that the brunt of that injury would be felt by respondent in the State in which she lives and works .... ).
440. See Lakin v. Prudential Sec., Inc., 348 F.3d 704 , 713 - 14 ( 8th Cir . 2003 ) ; see also ALS, 293 F .3d at 715.
441. See Publ'ns Int'l, Ltd . v. Burke/Triolo, Inc., 121 F. Supp . 2d 1178 , 1183 (N.D. Ill . 2000 ) ; see also Mieczkowski v . Masco Corp., 997 F. Supp . 782 , 788 (E.D. Tex . 1998 ). The District of Columbia Circuit, using a hybrid analysis, would likely have upheld general jurisdiction in Gorman v. Ameritrade Holding Corp ., 293 F. 3d 506 (D.C. Cir . 2002 ), but it did not officially decide the issue because the plaintiff had failed to perfect service of process . Id.at 513.
442. 997 F. Supp . at 787-88.
443. Id . at 785. The court found that the plaintiffs had failed to allege facts sufficient to support specific jurisdiction, so the opinion only addressed general jurisdiction . See id
444. Id .
445. Id .
446. Id .at 785-86.
447. See id. at 786 & n.3.
448. See id at 786-87.
449. Id .
450. Id .at 788.
451. Id .