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A Massachusetts state court recently ruled it has jurisdiction to hear a case against Salomon S.A. because the company’s Web site directs consumers to retailers that sell its products in the state. On Dec. 19, Associate Justice Elizabeth Fahey denied Salomon’s motion to dismiss a Suffolk County, Mass., Superior Court case, LaFond v. Salomon North America Inc., ruling that the court has personal jurisdiction over the company. The ruling also applies to both Salomon North America, which manufactures winter sports equipment, and its parent company in Metz-Tessy, France. Fahey wrote in a footnote that the question of whether a Web site gives Massachusetts courts personal jurisdiction over a defendant is one of first impression in the state’s courts. The ruling follows, but does not reference, two June U.S. Supreme Court rulings that addressed U.S. state court jurisdiction over foreign manufacturers of products. In Goodyear Dunlop Tires Operations S.A. v. Brown, a 9-0 opinion authored by Justice Ruth Bader Ginsburg held that North Carolina state courts did not have jurisdiction for a wrongful-death lawsuit against Goodyear stemming from its allegedly defective tires. Parents of North Carolina minors who died in a bus accident outside Paris filed the case. In J. McIntyre Machinery Ltd. v. Nicastro, the high court reversed a New Jersey Supreme Court ruling against a foreign manufacturer. The state high court held there was jurisdiction because scrap metal machine maker J. McIntyre knew or reasonably should have known its products would be distributed through a nationwide U.S. distribution system. But the U.S. Supreme Court majority, in an opinion authored by Justice Anthony Kennedy, held that the company did not purposefully avail itself of the New Jersey market. Kennedy’s ruling noted that no more than four, and possibly as few as one, of the company’s machines ended up in New Jersey. In the Massachusetts case, the plaintiff, Gary LaFond sued Salomon and Ogden, Utah-based distributor Amer Sports & Winter Outdoor Co. in March 2008 for negligence, breach of implied warranty of merchantability and violation of The Massachusetts Consumer Protection Act. He alleged that Salomon ski bindings were responsible for “serious and permanent injuries and losses” that he sustained in Utah. Fahey noted that Salomon has not visited Massachusetts to market, promote, or solicit sales of its products but does have a Web site that directs consumers to retailers that sell its products, including 56 in Massachusetts. LaFond claims he researched products on the Web site in June 2004 then bought the ski bindings in a Massachusetts store. After he was injured in January 2007, he returned to the store where he bought the bindings, which had replacement ones shipped to it. Fahey found that the Massachusetts Superior Court has jurisdiction over Salomon under the state’s long-arm statute on the ground that Salomon has engaged in “purposeful and successful solicitation of business from Massachusetts residents via the Web site. The Web site is not merely a passive instrument that only presents information about Salomon products.” Fahey also wrote that it’s significant that LaFond purchased the binding at issue partly based on his research on the Web site. The claims against Salomon also comply with the due process requirements of the U.S. Constitution because the company “purposefully avails itself of the benefits of doing business in Massachusetts by placing its products in the stream of commerce with the intention of reaching consumers, including consumers in Massachusetts,” Fahey wrote. LaFond’s lawyer, Susan Bourque, a Boston partner at Parker Scheer, said that it appears that the deciding factor for Fahey is that Salomon’s Web site informs Massachusetts consumers about where they can purchase the company’s products. Bourque said there was “no specific targeting” of consumers in the forum states where the lawsuits were filed in the Goodyear and McIntyre cases. “Here their Web site was more than a passive Web site,” Bourque said. “It says if you want to buy our product we’re going to tell you where to go. The court found that was sufficient to be transacting business in the Commonwealth.” The defendants’ lawyer, Mark Bodner of Boston’s Engelberg & Bratcher declined to comment while the case is pending. Salomon could not immediately be reached for comment, and Amer did not immediately respond to a request for comment. A trio of law professors with civil procedure expertise who have studied the recent Supreme Court rulings say they aren’t clear enough, or related enough, to provide guidance in the Massachusetts case. The professors say the Goodyear case is too different to provide guidance. And they believe the Massachusetts case either doesn’t conflict with McIntyre or that McIntyre doesn’t provide enough guidance. Seton Hall University School of Law Professor Adam Steinman said Goodyear was a general jurisdiction case, while McIntyre was a specific jurisdiction case like LaFond. Although LaFond and McIntyre are ultimately very different, they both involve a foreign manufacturer using a U.S. distributor to access the markets in the U.S. and the individual states, Steinman said. In LaFond, “the foreign manufacturer recognized 56 dealers of its products in Massachusetts and had an expectation of selling its products to customers there, Steinman said. “I don’t think it’s at all inconsistent with McIntyre to uphold jurisdiction on these facts,” Steinman said. New York University School of Law Professor Arthur Miller, said, “This is an example of the chaos created by the obscurity and indefiniteness and ambiguity of McIntyre.” “Did Salomon solicit in Massachusetts or did Salomon simply inform” Massachusetts consumers about their products? Miller said. “What is the movement of the product?” McIntyre is ambiguous enough that it doesn’t answer the question of whether putting product information on the Internet means a company is liable for lawsuits filed anywhere in the world or if a company is only responsible if it says, “Hey, you folks in Massachusetts, we’re aiming this at you,” Miller said. University of Richmond School of Law Dean Wendy Perdue said LaFond looks different from McIntyre because it appears the defendant’s products are regularly sold in the forum through 56 retailers. In McIntyre “there was apparently only one sale of the product to someone in the forum, and Justice Breyer in his plurality opinion specifically makes the point that there was no “regular flow” of sales into New Jersey,” Perdue said. Sheri Qualters can be contacted at [email protected] .

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