Maniscalco v. Brother International (USA) Corp.

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 11-3032
_____________
MARK MANISCALCO*; WALTER HURYK, on behalf of
themselves and all others similarly situated
v.
BROTHER INTERNATIONAL (USA) CORPORATION
Walter Huryk,
Appellant
*Dismissed pursuant to USCA Order of January 24, 2012
_____________
APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 06-cv-04907)
District Judge: Honorable Freda L. Wolfson
____________
Argued: January 16, 2013
____________
Before: SMITH, CHAGARES and BARRY, Circuit Judges
(Opinion Filed: March 08, 2013)
____________
Douglas J. McNamara, Esq. (Argued)
Lisa M. Mezzetti, Esq.
Cohen Milstein
1100 New York Avenue, N.W.
1
West Tower, Suite 500
Washington, DC 20005-0000
Counsel for Appellant
Michael R. McDonald, Esq. (Argued)
Melissa C. Dehonney, Esq.
Lan Hoang, Esq.
Christopher Walsh, Esq.
Gibbons
One Gateway Center
Newark, NJ 07102
Counsel for Appellee
____________
OPINION OF THE COURT
____________
BARRY, Circuit Judge
I. INTRODUCTION
Walter Huryk (“Huryk”) appeals the order of the
District Court granting summary judgment in favor of Brother
International Corp. (“BIC”) and dismissing his putative class
action claim under the New Jersey Consumer Fraud Act
(“NJCFA”), N.J. Stat. Ann. § 56:8-2. The District Court
dismissed that claim—a claim for concealing or failing to
disclose two design defects present in BIC’s line of Multi-
Function Center (“MFC”) machines—on the ground that
South Carolina law, not New Jersey law, is the applicable law.
We will affirm.
II. BACKGROUND
BIC is a Delaware corporation with a principal place
of business and headquarters in New Jersey. It is the primary
distributor of MFC machines that are manufactured by
Brother Industries, Ltd. (“BIL”), BIC’s parent entity located
2
in Japan. BIC began distributing the Brother 3220C, a small
printer, fax machine, scanner and copier, around August or
September 2001. Each MFC machine sold was accompanied
by a Limited Warranty and User Manual drafted by BIL in
Japan and translated by BIC. The Limited Warranty provided
that the MFC would be “free from defects in materials and
workmanship, when used under normal conditions” for one
year, and BIC agreed to repair or replace MFC machines if a
defect was reported to BIC or an authorized service center
within the applicable warranty period. Huryk alleges that
from 2002 to 2005, BIC and its customer relations, technical
and marketing executives in New Jersey knew about but
concealed information regarding two defects in the Brother
3220C: (1) a defect that caused printer heads to fail and
display the message “Machine Error 41” before the end of the
MFC’s expected useful life; and (2) a defect that caused the
machines to purge excess amounts of ink when not used
frequently enough.
A. The Machine Error 41 (“ME41”) Defect
Sometime in 2001, BIC began to receive phone calls
complaining about the appearance of an error message—
“Machine Error 41”—that would flash across the LCD screen
of the MFC indicating a voltage issue in the print heads of
affected machines and causing the machines to stop printing
until the error message was cleared. Nineteen calls regarding
the ME41 defect were received that year. In some cases, the
message could be cleared by unplugging and replugging the
affected machine. In others, the message could not be cleared
without replacing the print heads, which, for owners no longer
covered by warranty, cost approximately the same amount as
the machine itself. By 2002, BIC knew that the ME41
problem related to complications in the machines’ print heads
but had not yet determined the cause. In August 2002, BIC
submitted a fault report1 to bring the quality issues and
1
A fault report is the method by which BIC alerted BIL of
quality issues after some threshold triggering event, such as
an unusually large number of customer complaints or a
quality problem of a particularly serious magnitude. BIC
3
customer calls BIC had been receiving to BIL’s attention in
Japan. BIL investigated the matter, and in November 2002
provided BIC with a “temporary troubleshooting guide” with
potential solutions BIC field personnel could implement when
encountering customers complaining of ME41 defects. In
2003, BIC opened two more fault reports concerning the
ME41 issue, stating that the defect was the “number 1 quality
issue on this product.” A. 1674. By the end of 2003, BIC
unilaterally extended the print head warranty on machines
affected by the ME41 defect to eighteen months, and
requested from BIL “warranty reimbursement and a no cost
print head.” A. 1738. In mid-2004, BIL informed BIC that it
had discovered the cause of the ME41 defect but did not
know how to fix it. By the end of the year, BIC lowered the
cost of replacement print heads from approximately $130 to
approximately $20 and $10. In early 2005, BIC again
extended the print head warranty, this time, to two years from
the date of purchase, and sent an e-mail notice to registered
customers who were within the twenty-four month extended
warranty period. In June 2005, BIL discovered a permanent
fix to the ME41 defect and applied the fix to new MFC
machines. The only permanent fix for old machines affected
by the defect was replacement of the print head.
B. The Ink-Purging Defect
In or around August 2004, BIC’s New Zealand
counterpart opened up a fault report to launch an investigation
into the source of a defect in some MFC models that would
cause the machines to purge excess amounts of ink.
Essentially, as part of their routine cleaning process, affected
machines would purge ink too often, emptying ink cartridges
within seven months or less when the ink should have lasted
fifteen to twenty months.2 In September 2004, BIC made
would provide a description of the problem to BIL, and BIL
would investigate and attempt to solve the problem. As part
of the fault report process, BIC often sent samples to BIL of
MFCs affected by the defect.
2
Ink is commonly used in similar machines as part of the
routine cleaning process. The ink-purging defect occurred
4
available to its authorized service centers modified software
to address the ink-purging defect. In March 2005, BIC
created a CD with the modified software that it provided to
owners for self-installation. In June 2005, BIC posted the
revised software to its website. BIC, however, did not reach
out to machine owners to notify them about the defect or the
availability of the revised software; rather, customers learned
about the modified software only by discovering it on their
own on the website or by contacting BIC about the defect.
C. Walter Huryk
Huryk, a South Carolina resident, purchased a Brother
3220C for approximately $125 from an Office Depot retail
store in South Carolina on December 11, 2003. The MFC
came with the Limited Warranty and User Manual described
above. Based on his professional experience as an executive
of a printing company and personal experience with office
equipment, Huryk believed his MFC would last between five
and seven years. In early 2007, Huryk’s machine displayed
the ME41 defect, and by April 2007, stopped working
altogether. Huryk became aware of the pending litigation on
April 24, 2007, and one day later disconnected his machine,
for some reason disposing of it by placing it on the curb.
In October 2007, Huryk joined in a putative class
action alleging that the MFC he purchased contained the
ME41 defect and the ink-purging defect, and that BIC’s
omissions and concealments concerning the defects
constituted a violation of the NJCFA. Huryk alleges that his
machine ceased functioning as a result of BIC’s failure to
disclose defects, causing losses because Huryk had to
purchase more ink than he otherwise would have, paid more
for his MFC machine than it was worth, and had to purchase a
replacement machine. Huryk contends that BIC’s omissions
and concealments in New Jersey included: (1) observing and
when the automated cleaning process took place too
frequently. For the Brother 3320C, this typically happened
when the machine had been rarely used, paradoxically
resulting in faster ink loss.
5
participating in the investigation of the ME41 defect without
disclosing it to consumers; (2) persuading BIL not to recall
the machines; (3) rejecting the option of suspending sales of
the machines; (4) intentionally manipulating the warranty
extension announcement by burying it in the company’s
website; (5) publishing misleading solutions to the ME41
defect on its website; (6) learning but failing to disclose the
breadth of the ink-purging defect; (7) manipulating its website
to make it appear the ink-purging software fix was an
“upgrade” and not a solution to a defect; and (8) hiding from
its customer service operators information about the software
defect.
BIC moved for summary judgment, arguing that New
Jersey law did not apply to Huryk’s claim, and, in the
alternative, that even if New Jersey law did apply, Huryk
could not establish (1) an ascertainable loss, (2) a causal
connection between the alleged conduct and his harm, or (3)
that BIC engaged in any wrongful conduct, as required by the
NJCFA. The District Court granted BIC’s motion and
dismissed the action, finding that under New Jersey choice-
of-law rules, the factors set forth in the Restatement (Second)
of Conflicts of Law weighed in favor of applying the law of
Huryk’s home state of South Carolina, and that South
Carolina had the most significant relationship with the
litigation. Huryk now appeals.
III. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction over this case under
the Class Action Fairness Act, 28 U.S.C. §1332(d)(2), and we
have appellate jurisdiction under 28 U.S.C. § 1291. “We
exercise plenary review over the District Court’s choice of
law determination.” Hammersmith v. TIG Ins. Co., 480 F.3d
220, 226 (3d Cir. 2007).
IV. ANALYSIS
A federal court sitting in diversity applies the choice-
of-law rules of the forum state—here, New Jersey—to
determine the controlling law. Klaxon Co. v. Stentor Elec.
6
Mfg. Co. Inc., 313 U.S. 487, 496 (1941); Thabault v. Chait,
541 F.3d 512, 535 (3d Cir. 2008). New Jersey has adopted
the “most significant relationship” test set forth in the
Restatement (Second) of Conflict of Laws. P.V. v. Camp
Jaycee, 962 A.2d 453, 459-60 (N.J. 2008). This is a two-part
test.
The first part of the choice-of-law inquiry is to
determine whether or not an actual conflict exists between the
laws of the potential forums. Lebegern v. Forman, 471 F.3d
424, 429-30 (3d Cir. 2006); see Camp Jaycee, 962 A.2d at
460 (“Procedurally, the first step is to determine whether an
actual conflict exists. That is done by examining the
substance of the potentially applicable laws to determine
whether there is distinction between them. . . . If not, there is
no choice-of-law issue to be resolved.”) (internal citations and
quotations omitted). There is no dispute that there is a
conflict between New Jersey and South Carolina consumer
fraud law, a conflict that, indeed, would be dispositive of
Huryk’s putative class action. Among other differences,
South Carolina, unlike New Jersey, would not permit the
statutory consumer fraud claims to proceed as a class action.
See S.C. Code. Ann. § 39-5-140(a) (“Any person who suffers
any ascertainable loss . . . as a result of . . . an unfair or
deceptive method, act or practice declared unlawful by [the
consumer fraud statute] may bring an action individually, but
not in a representative capacity, to recover actual damages.”).
Under the second part of the inquiry, the court must
determine which jurisdiction has the “most significant
relationship” to the claim. Camp Jaycee, 962 A.2d at 461.
Where a fraud or misrepresentation claim has been alleged,
the court looks to the factors set forth in § 148 of the
Restatement (Second) of Conflict of Laws. Under subsection
(1) of § 148, when the “plaintiff’s action in reliance took
place in the state where the false representations were made
and received,” there is a presumption that the law of that state
applies. Under subsection (2), when the plaintiff’s action in
reliance takes place in a different state than where the false
representations were made and received, courts weigh the
following factors:
7
(a) the place, or places, where the plaintiff acted
in reliance upon the defendant’s representations,
(b) the place where the plaintiff received the
representations,
(c) the place where the defendant made the
representations,
(d) the domicil, residence, nationality, place of
incorporation and place of business of the
parties,
(e) the place where a tangible thing which is the
subject of the transaction between the parties
was situated at the time, and
(f) the place where the plaintiff is to render
performance under a contract which he has been
induced to enter by the false representations of
the defendant.
§ 148(2). “The factors enumerated in [the Restatement]
should be evaluated on a qualitative rather than a quantitative
basis.” David B. Lilly Co. v. Fisher, 18 F.3d 1112, 1119 (3d
Cir. 1994) (discussing sections 145 and 146 of the
Restatement). The relative importance to each of the factors
in a given case “should be determined in light of the choice-
of-law principles stated in § 6 [of the Restatement].”
Restatement (Second) of Conflict of Laws § 148 cmt. e.
Those principles are: “(1) the interests of interstate comity; (2)
the interests of the parties; (3) the interests underlying the
field of tort law; (4) the interests of judicial administration;
and (5) the competing interests of the states.” Camp Jaycee,
962 A.2d at 463 (internal quotation omitted).
As a threshold matter, we must determine which
subsection of the Restatement to apply, i.e., whether the
subsection (1) presumption in favor of the state of Huryk’s
reliance applies, or whether we must weigh the five factors
8
enumerated in subsection (2). BIC argued in the District
Court for the application of subsection (1) and its presumption
that South Carolina provides the controlling law because any
representation made by BIC—such as the Limited Warranty
and User Manual—was directed to Huryk in South Carolina.
We recognize that several courts have agreed under similar
circumstances. This line of cases reasons that the
representations—or, as here, omissions—even if originated
from the headquarters state are actually made in the
purchaser’s home state when they are directed to the
purchaser’s home state at the point of sale. See Laney v. Am.
Standard Cos., Inc., Civ. No. 07-7991, 2010 WL 3810637, at
*22 (D.N.J. Sept. 23, 2010) (following §148(1) and holding
that each plaintiff’s state’s consumer fraud laws should apply
in omissions case where plaintiff alleged that defendant
manufacturer failed to disclose latent defect because the
relevant warranties were directed to customers in their home
states); Agostino v. Quest Diagnostics, Inc., 256 F.R.D. 437,
463 (D.N.J. 2009) (applying §148(1) to case in which plaintiff
alleged a billing scheme emanating from New Jersey where
bills were sent to plaintiffs in their home states).
We find this approach contradictory to the plain
language of the Restatement. The Restatement applies the
presumption of subsection (1) only when “the plaintiff’s
action in reliance took place in the state where the false
representations were made and received.” Restatement
(Second) of Conflict of Laws §148(1) (emphasis added).
Construing the location to which a representation is “directed”
to be the same in which one is “made”—as opposed to the
location from which the representation emanated—would
render meaningless the Restatement drafters’ careful
distinction between “made” and “received.” Under the
Agostino/Laney approach, a plaintiff’s state of receipt would
become the only relevant contact in nearly every case in
which a defendant is a multistate seller. It would be
antithetical to traditional choice-of-law principles to disregard
the locale of a defendant’s actual misconduct. See
Restatement (Second) of Conflict of Laws § 148 cmt. c.
Here, Huryk alleges fraudulent omissions that directly
emanated from decisions made in BIC’s headquarters in New
9
Jersey, not at the point of sale in South Carolina. Because
Huryk received and relied on BIC’s representations in his
home state of South Carolina, and there was no evidence
demonstrating that BIC made any omissions or
misrepresentations in South Carolina, the District Court
properly applied subsection (2) of the Restatement.3 See, e.g.,
Arlandson v. Hartz Mountain Corp., 792 F. Supp. 2d 691,
708-09 (D.N.J. 2011) (applying subsection (2) under similar
circumstances); Nikolin v. Samsung Elecs. Am., Inc., Civ. No.
10-1456, 2010 WL 4116997, at *4 (D.N.J. Oct. 18, 2010)
(same).
Under subsection (2), three of the six contacts weigh
strongly in favor of applying South Carolina law: (a) the place
where Huryk acted in reliance upon BIC’s representations, (b)
the place where Huryk received the representations, and (e)
the place where a tangible thing which is the subject of the
transaction between the parties was situated at the time.
Factor (f) is not applicable because there is no contract in the
case. Although Huryk is a domiciliary of South Carolina and
BIC’s place of business is in New Jersey, factor (d) weighs
slightly in favor of applying South Carolina law. See § 148
cmt. i. (noting, in cases of pecuniary loss, that “[t]he domicil,
residence and place of business of the plaintiff are more
important than are similar contacts on the part of the
defendant” because “financial loss will usually be of greatest
concern to the state with which the person suffering the loss
has the closest relationship”). The only remaining questions
are whether the place where BIC’s alleged omissions took
place, factor (c), weighs in favor of applying New Jersey law,
and, if so, whether this contact is of such significance that it
outweighs the contacts in favor of applying South Carolina
law. We find that it does not.
Accepting Huryk’s premise that there were actionable
3
Although, as we will explain, we do not agree with the
court’s conclusion, we refer the reader to the thoughtful
discussion of the difference between the two subsections in In
re Mercedes-Benz Tele Aid Contract Litigation, 257 F.R.D.
46, 65-66 (D.N.J. 2009).
10
omissions by BIC at its headquarters in New Jersey, we
conclude that this single contact—factor (c)—does not
warrant applying New Jersey law. Nothing else about the
relationship between the parties, other than the fortuitous
location of BIC’s headquarters, took place in the state of New
Jersey.4 Huryk’s home state, in which he received and relied
on BIC’s alleged fraud, has the “most significant relationship”
to his consumer fraud claim. In so concluding, we adopt the
overwhelming majority of courts’ application of New Jersey
choice-of-law rules under similar circumstances. See, e.g.,
Montich v. Miele USA, Inc., 849 F. Supp. 2d 439, 449 (D.N.J.
2012) (“A majority of courts in this District have held that the
mere fact that a company is headquartered in New Jersey or
that unlawful conduct emanated from New Jersey will not
supersede the numerous contacts with the consumer's home
state for purposes of determining which state has the most
significant relationship under Restatement § 148(2).”)
(internal quotation marks omitted); Arlandson, 792 F. Supp.
2d at 709 (applying consumer fraud law of plaintiffs’ home
states where they “received and relied upon the alleged
misrepresentations . . . , the product is located . . . , and the
performance of the contract was rendered” even where
alleged misrepresentations were made in New Jersey);
Maloney v. Microsoft Corp., Civ. No. 09-2047, 2011 WL
5864064, at *10 (D.N.J. Nov. 21, 2011) (same); Nikolin, 2010
WL 4116997, at *4 (“[M]ere allegations that the unlawful
conduct emanated from New Jersey did not outweigh the
substantial ties to plaintiffs' home states based on the other
factors under § 148(2).”); Warma Witter Kreisler, Inc. v.
Samsung Elecs. Am., Inc., Civ. No. 08-5380, 2010 WL
1424014, at *4 (D.N.J. Apr. 8, 2010) (holding that “allegation
that [the defendant] designed the product's operation in New
4
The District Court held that the record failed to establish any
facts pointing to a decision to omit or conceal a material fact
concerning the ME41 and ink-purging defects by BIC in New
Jersey, a conclusion with which—as was made clear in oral
argument—Huryk disagrees. As discussed infra, even if the
record could establish that some BIC wrongdoing emanated
from New Jersey, we would find that South Carolina, not
New Jersey law, would apply.
11
Jersey does not outweigh the other, more significant, ties to
Illinois”); Int’l Union of Operating Eng’rs Local No. 68
Welfare Fund v. Merck & Co. Inc., 929 A.2d 1076, 1086 n.3
(N.J. 2007) (reversing certification of nationwide class action
under NJCFA on other grounds, but noting that application of
the law of a single state to all members of a nationwide class
is “rare” and acknowledging defendant’s “strong arguments”
under choice-of-law principles that each plaintiff’s home
state’s law should apply); Fink v. Ricoh Corp., 839 A.2d 942,
990-91 (N.J. Super. Ct. 2003) (applying law of each
plaintiff’s state in large consumer fraud action).
Our conclusion is supported by the authors’
commentary accompanying § 148(2): “If any two of the
[148(2)] contacts, apart from the defendant’s domicil, state of
incorporation or place of business, are located wholly in a
single state, this will usually be the state of the applicable law
with respect to most issues.” Restatement (Second) of
Conflicts of Law § 148, cmt j. Here, Huryk’s reliance, his
receipt of the representation, the location of the MFC, and the
sale, all took place in South Carolina. Accordingly, the §
148(2) factors weigh strongly in favor of applying South
Carolina law.
Applying Section 6 of the Restatement also bolsters the
conclusion that South Carolina law has the greater interest in
the litigation. First, the interests of interstate comity favor
applying the law of the individual claimant’s own state.
Applying New Jersey law to every potential out-of-state
claimant would frustrate the policies of each claimant’s state.
See Fink, 839 A.2d at 983 (finding that the interests of
interstate comity “clearly require application of the law of any
potential claimant's state of residence because application of
any other state's law would frustrate the domiciliary state's
legislative policies”). Second, the interest of the parties
favors applying South Carolina law: because the only contacts
between the parties took place in South Carolina, it is
reasonable to assume that they expected that South Carolina
law would apply. The third section 6 factor likely favors
neither state. Consumer fraud law serves the dual purposes of
compensating injured parties—which might favor South
12
Carolina law—and deterring corporate misconduct—which
might favor New Jersey law. Fourth, while the interests of
judicial administration might favor applying one state’s law in
a putative class action, rather than the law of each plaintiff’s
home state, New Jersey courts have found that the interests of
judicial administration must yield to the interests of the other
factors. Fu v. Fu, 733 A.2d 1133, 1142 (N.J. 1999). Finally,
and most importantly, the interest of South Carolina in having
its law apply to its own consumers outweighs the interests of
New Jersey in protecting out-of-state consumers from
consumer fraud. See Knox v. Samsung Elecs. Am., Inc., Civ.
No. 08-4308, 2009 WL 1810728, at *4 (D.N.J. June 25, 2009)
(“Although it is true that New Jersey seeks to prevent its
corporations from defrauding out-of-state consumers, it is not
clear to this Court that New Jersey intended out-of-state
consumers to engage in end runs around local law in order to
avail themselves of collective and class remedies that those
states deny.”); In re Ford Motor Co. Ignition Switch Prods.
Liab. Litig., 174 F.R.D. 332, 348 (D.N.J. 1997) (“Each
plaintiff’s home state has an interest in protecting its
consumers from in-state injuries caused by foreign
corporations and in delineating the scope of recovery for its
citizens under its own laws.”).
Huryk relies heavily on In re Mercedes-Benz Tele Aid
Contract Litigation, 257 F.R.D. 46 (D.N.J. 2009) (“Tele
Aid”), in which the district court found that New Jersey law
should apply in a class action involving out-of-state plaintiffs
alleging that Mercedes-Benz made false statements and
omissions under the NJCFA when promoting vehicles
equipped with an emergency response system which
Mercedes-Benz allegedly knew would become obsolete.
Although finding that three of the § 148 factors weighed in
favor of applying the laws of each plaintiff’s home state, the
court concluded that the state from which the defendant’s
omissions and misrepresentations “emanated,” New Jersey,
had a greater interest in the litigation. It reasoned that while
“each of the states from which class members will be drawn
has an interest in assuring that its citizens will be
compensated for any harm they may have suffered . . . [,]
[o]nly New Jersey . . . possesses the additional interest in
13
regulating a corporation headquartered within its borders.”
Id. at 68. It found that the NJCFA’s interest in deterring local
corporations—by permitting class actions and treble
damages—“would be compromised if the company were
subjected to the law of states that do not [have such remedies
available] in consumer fraud cases.” Id.
While, to be sure, New Jersey has an interest in
deterring misconduct by corporations headquartered within its
borders, it is far from clear that this interest would be
sufficient to outweigh other significant contacts with a
plaintiff’s home state. New Jersey’s deterrent interest might
well be served by actions involving in-state plaintiffs or
actions involving additional contacts within New Jersey
without opening the floodgates to nation-wide consumer fraud
class actions brought by out-of-state plaintiffs involving
transactions with no connection to New Jersey other than the
location of the defendant’s headquarters.
But even were we to find the reasoning of the Tele Aid
court persuasive, the case before us is distinguishable. In Tele
Aid, the court was bound at the motion to dismiss stage to
accept as fact that the defendant’s marketing team was solely
responsible for any alleged misrepresentations and omissions,
and that all of the misconduct took place in New Jersey.
Here, however, the District Court found that any
representations or omissions relied on by Huryk were made by
BIL in Japan, where the Limited Warranty and User Manual
was authored. The District Court expressly held that Huryk
had not demonstrated “any facts pointing to a decision to omit
or conceal a material fact” by BIC in New Jersey. Even
accepting Huryk’s premise that the District Court erred by
overlooking certain conduct that occurred at BIC’s
headquarters in New Jersey—such as obscure or buried
website announcements and BIC’s decision not to recall the
machines or fully refund purchasers—it is undisputed that at
least some of the allegedly wrongful conduct emanated from
Japan, at BIC’s parent company, in its failure to disclose
latent defects. It is also undisputed that BIL authored the
Limited Warranty and User Manual, the only representations
made to Huryk in connection with his MFC at the point of
14
sale, and that BIL was significantly involved in decisions
regarding how to address the ME41 and ink-purging defects.
One final observation in this regard. The Restatement
instructs courts to discount the relative weight of the place
where the defendant made the false representations when the
alleged representations (or omissions or concealments in this
case) are made in two or more states. Restatement (Second)
of Conflict of Laws § 148 cmt. h. (“The making of the
representations provides a more important contact when the
representations are made only in one state than when they are
made in two or more.”). Here, it is undisputed that at least
some of the responsibility for BIC’s alleged failure to disclose
the ME41 and ink-purging defects lies with decisionmakers in
Japan. Because the alleged omissions or concealments took
place in New Jersey and Japan, factor (c) of the Restatement
does not weigh strongly in favor of applying New Jersey law.
Viewed in light of the principles of § 6 as well as the
commentary accompanying the Restatement, we find that the
factors enumerated in subsection (2) of § 148 point decisively
in favor of applying South Carolina law. Accordingly, BIC’s
motion for summary judgment was properly granted.5
V. CONCLUSION
The order of the District Court will be affirmed.
5
Because we find that New Jersey law does not apply, we
need not reach BIC’s alternative argument that Huryk had not
established a violation of the NJCFA, and that the District
Court had so found.
15