Hoffman v. SUPPLEMENTS TOGO MGT.
18 A.3d 210
| N.J. Super. Ct. App. Div. | 2011Background
- Hoffman, a New Jersey resident, purchased Erection MD from STM/WCN over the internet and alleges CFA and common-law fraud based on unsubstantiated efficacy claims.
- Defendants’ website advertised Erection MD as highly efficacious but included a disclaimer with a forum selection clause directing disputes to Nevada.
- Hoffman paid $59.99 plus shipping; product shipped March 11, 2010, after ordering March 3, 2010, with Hoffman filing suit soon after.
- Trial court dismissed the case on two grounds: (a) forum non conveniens due to the website forum clause; (b) failure to allege ascertainable loss and common-law fraud elements.
- Appellate Division reversed on both grounds, holding the forum clause presumptively unenforceable due to an unfair, submerged presentation and that the CFA and common-law fraud claims were sufficiently pled.
- The case was remanded for further proceedings, including possible evidentiary development on notice and potential dispositive motions after discovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Forum clause enforceability | Hoffman argues clause was not reasonably conspicuous or assent-giving; unenforceable. | Defendants contend clause is valid, prominently displayed and binding. | Forum clause presumptively unenforceable; remanded for evidentiary development on notice. |
| Ascertainable loss sufficiency | Complaint adequately alleges ascertainable loss under CFA at pleadings stage. | Complaint fails to plead concrete ascertainable loss. | Complaint sufficient to plead ascertainable loss; remand for further proceedings. |
| Common-law fraud pleading | Pleading plausibly alleges misrepresentations and reliance causing damages. | Pleading inadequately pleads falsity and damages. | Common-law fraud pleading sufficient; remand for discovery and dispositive motion practice. |
Key Cases Cited
- Caspi v. Microsoft Network, L.L.C., 323 N.J. Super. 118 (App.Div. 1999) (fair notice required for forum clauses; no concealment)
- Specht v. Netscape Commc'ns Corp., 306 F.3d 17 (2d Cir. 2002) (submerged license terms unenforceable for lack of notice)
- Register.com, Inc. v. Verio, Inc., 356 F.3d 393 (2d Cir. 2004) (enforcement where terms clearly posted and known)
- Feldman v. Google, Inc., 513 F. Supp. 2d 229 (E.D. Pa. 2007) (internet forum clause notices and assent relevance)
- Major v. McCallister, 302 S.W.3d 227 (Mo. Ct. App. 2009) (immediately visible forum clause in clickwrap/browsewrap context)
- Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (U.S. 1991) (forum selection clauses in contracts honored absent unfairness)
- Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55 (1978) (general forum selection enforceability standards under New Jersey law)