April 20, 2013

Nebraska court ruling on book could affect sales

The case involving a Massachusetts bookseller could have implications for all online merchants.

The Associated Press

OMAHA, Neb. - The Nebraska Supreme Court on Friday upheld the dismissal of an Omaha woman's lawsuit against a Massachusetts bookseller over a rare, autographed novel in a decision that has implications for online merchants.

Helen Abdouch, 86, had claimed in the lawsuit that Ken Lopez and his Hadley, Mass.-based business, Ken Lopez Bookseller, improperly used her name and position as executive secretary on John F. Kennedy's presidential campaign to sell an autographed copy of "Revolutionary Road" she said had been stolen from her in the 1960s.

The pre-published, hardback copy of the 1961 novel about a disillusioned Connecticut couple was autographed by Richard Yates for Abdouch and included a personal note of best wishes. Yates, who had worked as a speechwriter for U.S. Attorney General Robert Kennedy in the early 1960s, died in 1992. "Revolutionary Road" was adapted into a 2008 movie starring Leonardo DiCaprio and Kate Winslet.

Abdouch's lawsuit said Lopez, who bought the book in 2009 from someone in Georgia, used the inscription by Yates and Abdouch's name in online advertisements to sell the book. Abdouch's lawsuit cited a 1979 Nebraska state law that allows people to sue if their names or images are exploited for commercial gain.

The trial court dismissed the lawsuit, saying Nebraska did not have jurisdiction in the case, and Abdouch appealed, saying Lopez's online advertisement deliberately targeted her and other Nebraska residents.

But in a case of first impression, the Nebraska Supreme Court said Friday that Abdouch failed to show Lopez and his business have even a minimum connection to the state of Nebraska. Lopez and his business do not own, lease, or rent land in Nebraska and have never advertised directly or participated in book fairs in Nebraska, Nebraska Supreme Court Judge Michael McCormack wrote for the high court. He also noted that Lopez has only two Nebraska customers on his mailing list and that from 2009 through 2011, he made a total of $615 in sales to Nebraska residents out of an estimated $3.9 million in total sales.

The benchmark in determining whether a state court has jurisdiction over matters involving an out-of-state defendant "is whether the defendant's minimum contacts with the forum state are such that the defendant should reasonably anticipate being hauled into court there," McCormack wrote. "Beyond the minimal website sales to Nebraska residents and mailing catalogs to two Nebraska residents, Lopez's and (his business') contacts with Nebraska are nonexistent."

Abdouch's attorney, Mary Kay Green of Kansas City, Mo., said she thinks Nebraska's high court took a narrow interpretation of jurisdiction. She also took issue with the high court's finding that she didn't prove intent to harm.

"Only God knows what was in the mind of the defendants," Green said. "There's no way to prove intent in a privacy case."

Green said she will confer with her client on whether to ask the Nebraska Supreme Court to reconsider or to file the case in Massachusetts court.

Lopez's attorney, David Yudelson of Omaha, said he and his client are pleased with the ruling.?

"It's a case that has huge implications for Internet vendors," Yudelson said, adding that unlike some other states, Nebraska had not had the occasion to decide the question until now.

 

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