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

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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.

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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:

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(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

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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

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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).

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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.

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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

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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

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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

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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.

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