Hoffman v. Supplements Togo Management, Ll

18 A.3d 210 (2011)

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Nature of the Case

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Facts

Hoffman (P), is an attorney and a resident of New Jersey. At various times in the past, P has brought lawsuits, in his own name and on behalf of other putative class members, against companies that sell and advertise products in a deceptive manner allegedly in violation of the CFA and other laws. another company related to defendants, known as 'STG Supplements,' was started in Cincinnati in the early 1980s by a weightlifting enthusiast. Ds claimed that STG Supplements has been in the industry 'over 25 years' and the company has 'a name you can trust for results.' D sold a dietary supplement known as 'Erection MD.' The ads for Erection MD describe the product's benefits as follows: 'Enhances Sex Drive, Maximum Performance, Instantly Boost Testosterone Levels, Rapid Blood Flow, Ultimate Stamina, Higher Volume of Ejaculate.' The site also contained a disclaimer. P alleges that D portrayed Erection MD in their ads as 'the most advanced sexual enhancement product.' But all the claims alleged contained disclaimers as well. The Erection MD pills ordered by P were delivered to him on March 11, 2010. P does not contend that he ingested any of the pills. Four days after receiving the shipment of the product, P filed the instant lawsuit. Ds moved to dismiss because the forum selection clause in their website disclaimer only permits their dissatisfied customers to file suit against them in the state of Nevada. P argued that the forum selection clause was unenforceable because it was essentially hidden within the website and was not reasonably conspicuous to him and other consumers. The trial court dismissed the complaint. In an oral opinion, the court found that New Jersey lacks subject matter jurisdiction over this case because the forum selection clause was sufficiently prominent on Ds' website to be enforceable. The court also rejected P's legal argument that a forum selection clause in an internet transaction is not enforceable unless the purchaser specifically clicks an 'I agree' icon associated with the clause. The opinion did not expressly address plaintiff's argument that the clause had been 'submerged' in the website in a manner that reduced the likelihood that it would be visible on a purchaser's computer screen. P appealed.