Virginia Courts and Civil Procedure

One of the first hurdles in any litigation is to determine whether the court has jurisdiction over a defendant who resides out-of-state. If jurisdiction cannot be established, then the plaintiff must bear the added expense of bringing the suit in another state. Traditionally, under the "long- arm" statute, the courts in Virginia have been able to establish jurisdiction over an out-of-state defendant upon a showing that the action giving rise to the litigation occurred in the state or otherwise show that the defendant had sufficient contacts with the state.

An amendment to the "long-arm statute" will increase the reach of Virginia's courts. Now, Virginia court's will have jurisdiction over any defendant who transmits or causes the transmission of unsolicited bulk electronic mail to or through an "electronic mail service provider's computer network" located in Virginia. Because a large number of service providers are located in Virginia, any business or individual who sends out bulk E-mail will increase their chances of falling within the reach of the Virginia Courts.

By now, we have all heard the predictions about the Year 2000 ("Y2K") computer problems that may affect Virginia and the world in January. This spring the General Assembly passed a number of measures to control the litigation that is expected to arise out of the Y2K problem. The policy behind these measures (as expressed in Va. Code §8.01-227.1) is that the Y2K problem is a one-time occurrence for which no one person is accountable and, therefore, businesses in the Commonwealth should not be unfairly penalized and impaired in their ability to transact business.

As a result, the Assembly created Va. Code §8.01-227.3 stating, among other things, that no employee, officer or director shall be liable in his individual capacity and no person shall be liable for any damages beyond actual direct damages resulting from a Y2K computer problem (i.e. consequential or punitive damages). The net effect of these restrictions is to limit the amount of damages one is liable for and to restrict those potentially liable to businesses causing direct economic harm as a result of fault or negligence. Please note however, that this section does not limit damages in connection with wrongful death, personal injury or property damage that results from a Y2K problem.

Daniel C. Summerlin

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