NANCY WOLLEN VS. GULF STREAM RESTORATION AND CLEANING, LLC (L-0900-18, OCEAN COUNTY AND STATEWIDE)
A-1107-20
| N.J. Super. Ct. App. Div. | Jul 9, 2021Background
- HomeAdvisor operated an online referral portal; users created accounts and completed a multi‑page service‑request workflow in April 2017.
- The final page had a "View Matching Pros" button; directly beneath it was the text: "By submitting this request, you are agreeing to our Terms & Conditions," with "Terms & Conditions" as blue hyperlinked text (not underlined, bolded, or otherwise emphasized).
- The Terms & Conditions (separate seven‑page document) contained a mandatory arbitration clause and class‑action waiver; users were not required to click, scroll through, or otherwise affirmatively accept the terms before submitting the request.
- Plaintiff Nancy Wollen did not recall clicking the hyperlink or reviewing the terms; she hired a contractor via a HomeAdvisor referral and later sued for alleged defects and consumer‑protection violations.
- HomeAdvisor moved to compel arbitration; the trial court granted the motion relying in part on Skuse v. Pfizer; on appeal the court reversed, holding HomeAdvisor failed to show reasonable notice and mutual assent to the arbitration clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the arbitration clause was binding given website presentation | Wollen: hyperlink and wording did not give reasonable notice; she did not assent | HomeAdvisor: hyperlink was visible and users had opportunity to read terms before submitting | Court: hyperlink presentation (blue, not emphasized, no directive) and placement beneath submit button did not give reasonable notice or assent; arbitration not binding |
| Whether lack of "click‑to‑accept" or other affirmative acknowledgement permits enforcement | Wollen: absent click/acknowledgement, no knowing, voluntary waiver of right to court | HomeAdvisor: submitting the request manifested assent to terms, so no separate click required | Court: affirmative assent was lacking; no prerequisite to submission, so no proven mutual assent or incorporation by reference |
| Applicability of Skuse v. Pfizer to validate electronic assent | Wollen: Skuse (employee e‑mail + required acknowledgement) is distinguishable; consumer context differs | HomeAdvisor: Skuse supports enforcement of electronically communicated agreements | Court: distinguished Skuse — facts unlike employer‑mandated email/acknowledgement; Skuse does not compel enforcement here |
| Plaintiff's Plain Language Act challenge to arbitration clause | Wollen: clause violates New Jersey Plain Language Act | HomeAdvisor: (not fully addressed on appeal) | Court: did not reach Plain Language Act claim because arbitration enforcement failed on notice/assent grounds |
Key Cases Cited
- Skuse v. Pfizer, 244 N.J. 30 (2020) (upheld arbitration enforced where employer emailed notice and required electronic acknowledgment)
- Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430 (2014) (arbitration agreements governed by general contract‑law principles)
- Martindale v. Sandvik, Inc., 173 N.J. 76 (2002) (FAA allows states to apply general contract defenses)
- Kernahan v. Home Warranty Adm'r of Fla., Inc., 236 N.J. 301 (2019) (standards for reviewing arbitration orders)
- Hoffman v. Supplements Togo Mgmt., 419 N.J. Super. 596 (App. Div. 2011) (disclaimer/forum clause submerged on webpage did not give reasonable notice)
- Caspi v. Microsoft Network L.L.C., 323 N.J. Super. 118 (App. Div. 1999) (scrollable agreement with clickable "I Agree" held enforceable)
- Specht v. Netscape Commc'ns Corp., 306 F.3d 17 (2d Cir. 2002) (downloaders not on reasonable notice where license terms were "submerged" and not required to be viewed)