Thomas Techsavvy, a domiciliary and habitual resident of Atlanta, Georgia (Fulton County) started an electronic commerce company about four years ago. The company developed a business plan, signed up customers, and successfully started operations. Investment bankers became interested in taking the company public through an initial Public Stock offering (IPO). Thomas was scheduled to make a final presentation to the lead investment banker on February 1, 2014. Throughout the month of January 2014, he and his small staff had worked 16-hour days including weekends to develop sales projections, financial statements, and images of the companys Web sites for the presentation. On January 31, 2014, Thomas received an email message, apparently from a former high school classmate, with the subject line, I Miss You. Thomas opened an attachment to the message and was puzzled by the attachment contents, which referred to omissions in his email address book. Thomas turned his attention back to a last minute review of the materials before heading to New York for his presentation the next day. To his great surprise, he found that all the files containing the charts for his presentation had been suddenly erased. Despite frantic efforts by Thomas and his staff to recover the files in time for his flight to New York, they were lost and Thomas was forced to cancel his presentation. Over the next several weeks, the stock market fell, and the investment banker declined interest in further exploration of an IPO. After investigation, Thomas staff, along with a variety of technical consultants and law enforcement agencies, determined that the damage to his files had been caused by a computer virus that had spread over much of the world in I Miss You messages. Apparently, the virus was the work of John Schmoe, a renegade Australian computer hacker who wrote the virus, intending that it replicate in email address books and spread around the world. He intentionally wrote the program so that the virus would erase word processing, spreadsheet, image, and presentation files on any computer on which it was received. He began the propagation of the virus by sending it to everyone who had an email account with Australia OnLine (AOL), an Internet Service Provider located in Canberra, Australia and incorporated in Australia. AOL is a wholly-owned subsidiary of AOL-Time Warner, an American (Delaware) company with its principal place of business in Arlington, Virginia. AOL-Time Warner systematically and continuously does business in every one of the 50 states. At the time, Thomas own email service was provided by Fulton County Access (Full Access), located in Atlanta, Georgia. Thomas selected Full Access as his Internet service provider in part because Full Access had made commitments in both its advertisements and its subscriber agreement that it offered virus free email accounts by sweeping email files every few minutes with virus detection and eradication software. Unfortunatel.

1. Thomas Techsavvy, a domiciliary and habitual resident of Atlanta, Georgia (Fulton County) started
an electronic commerce company about four years ago. The company developed a business plan,
signed up customers, and successfully started operations. Investment bankers became interested
in taking the company public through an initial Public Stock offering (IPO). Thomas was scheduled
to make a final presentation to the lead investment banker on February 1, 2014. Throughout the
month of January 2014, he and his small staff had worked 16-hour days including weekends to
develop sales projections, financial statements, and images of the companys Web sites for the
presentation. On January 31, 2014, Thomas received an email message, apparently from a former
high school classmate, with the subject line, I Miss You. Thomas opened an attachment to the
message and was puzzled by the attachment contents, which referred to omissions in his email
address book.
Thomas turned his attention back to a last minute review of the materials before heading to New
York for his presentation the next day. To his great surprise, he found that all the files containing
the charts for his presentation had been suddenly erased. Despite frantic efforts by Thomas and
his staff to recover the files in time for his flight to New York, they were lost and Thomas was
forced to cancel his presentation. Over the next several weeks, the stock market fell, and the
investment banker declined interest in further exploration of an IPO. After investigation, Thomas
staff, along with a variety of technical consultants and law enforcement agencies, determined that
the damage to his files had been caused by a computer virus that had spread over much of the
world in I Miss You messages.
Apparently, the virus was the work of John Schmoe, a renegade Australian computer hacker who
wrote the virus, intending that it replicate in email address books and spread around the world. He
intentionally wrote the program so that the virus would erase word processing, spreadsheet,
image, and presentation files on any computer on which it was received. He began the
propagation of the virus by sending it to everyone who had an email account with Australia OnLine
(AOL), an Internet Service Provider located in Canberra, Australia and incorporated in Australia.
AOL is a wholly-owned subsidiary of AOL-Time Warner, an American (Delaware) company with its
principal place of business in Arlington, Virginia. AOL-Time Warner systematically and
continuously does business in every one of the 50 states.
At the time, Thomas own email service was provided by Fulton County Access (Full Access),
located in Atlanta, Georgia. Thomas selected Full Access as his Internet service provider in part
because Full Access had made commitments in both its advertisements and its subscriber
agreement that it offered virus free email accounts by sweeping email files every few minutes with
virus detection and eradication software. Unfortunately, the I Miss You virus caught almost
everyone by surprise and the Full Access virus protection software did not detect it. The Internet
and email service contract between Thomas and Full Access contains a forum-selection and
choice-of-law clause providing that any claims must be litigated in Illinois courts under Illinois law.
Thomas had never read the Terms of Service Contract because it was only made available if he
had clicked on a particular button when he signed up for the Full Access service. He did not do so,
and he was surprised when Full Access mentioned the forum-selection and choice-of-law clauses
in its answer.
Thomas has obtained your law firm, which has filed suit against Mr. Schmoe, Australia OnLine and

2. Full Access in the Superior Court of Fulton County, Georgia. The claim against Mr. Schmoe is
based on trespass, the one against AOL is based on negligence for allowing Mr. Schmoe to use
its services without determining that he had a long history of misconduct on the Internet, and the
claim against Full Access is for breach of contract.
Full Access answered the complaint and vigorously contests its liability. Full Access has filed a
motion to dismiss Thomass claim, and its lawyers state that if the motion is denied, they are
prepared to present evidence that any obligation it had under its warranty was fulfilled and that the
virus attack could not have been foreseen and should be treated under Georgia contract law as an
unforeseeable and unpreventable event under the Force Majeure Doctrine (often otherwise
referred to as the Commercial Impracticability Defense) applicable in Georgia. Australia OnLine
has entered a limited special appearance for the purpose of contesting jurisdiction only, arguing
that under Virginia law the acts of corporate subsidiaries and parents cannot be attributed to each
other. Mr. Schmoe filed a separate answer, denying liability.
The partner in charge of this case feels a bit overwhelmed with the Conflicts issues in this case.
She has asked you to write her a memorandum explaining the likely effect in this case of the
resolution of the Conflicts issues. Please tell her how she should proceed to best represent
Thomas. Please also tell her any additional information that you would like to have to better predict
what will happen in this case. You need not discuss substantive law except as necessary to fully
explore the conflict of laws issues. Limit your answer to no more than 2400 words.
please assume the following about the states laws below:
Georgia conflicts law is unsettled. Georgia decisions can be found embracing traditional choice-
of-law rules as well as more modern approaches. A relatively recent Georgia case involving a
trespass claim against an email spammer held that trespass is not available as a legal theory for
unpermitted access to computer resources or for damage to electronic files. Georgia corporation
law affords strong protection to corporate affiliates, not allowing the attribution of conduct by
another as long as they are separately incorporated. A statute in Georgia immunizes Internet
intermediaries for liability for the conduct of their subscribers and others who use their services.
Georgia law is favorable to breach of contract claims against Internet Service Providers. The
statute of limitations in Georgia for tort actions is 3 years, and for contract and property actions is 4
years.
Illinois follows the Second Restatement of Conflict of Laws. It has a one-year statute of limitations
for tort, contract and property suits. Illinois law does not recognize Force Majeure clauses unless
they are explicitly reserved.
Virginia courts follow the First Restatement of Conflict of Laws. Virginia law allows the corporate
veil to be pierced (for owners of corporations to be held liable for the acts of corporations they
own) when the owner exercises close control over the operations of the owned corporation.
Virginia cases allow the corporate veil to be pierced when a subsidiary uses the same name as
the parent corporation. A Virginia statute immunizes Internet intermediaries for liability for the
conduct of their subscribers and others who post information on their servers. Virginia trespass
law allows claims for intentional damage to computer files and for unpermitted entry into computer
resources. In Virginia, plaintiffs need not establish their causes of action in order to obtain default
judgments. The statutes of limitation in Virginia are as follows: torts4 years; contracts2 years;

3. property 4 years.
Australian courts use interest analysis to resolve choice-of-law problems. Australian law allows
trespass actions for damage to computer files and for unpermitted entry into computer resources.
It does not provide any immunity for Internet intermediaries. It preserves corporate veils and does
not attribute the conduct of one corporate affiliate to another. In Australia, plaintiffs need not
establish their causes of action in order to obtain default judgments. The statutes of limitations for
tort, contract and property actions are all 5 years.