The Appellate Division overturned the Trial Court's decision, holding that the placement of the disclaimer on Defendant's web page failed to meet the "fair and forthright" standard the Appellate Division had previous laid out in Caspi v. Microsoft Network, 323 N.J. Super. 118 (App. Div. 1999) and, as such, the forum selection clause contained therein was presumptively invalid. The Appellate Division found that Defendant's "submerging" of the forum selection clause was not "fair and forthright." Specifically, Defendant placed the disclaimer in a position on the web page where it was possible for a consumer to make their entire purchase without ever seeing the disclaimer if they did not scroll down the page. Furthermore, once a consumer had added an item to their online "shopping cart," the web page would skip ahead to a new page that did not contain the disclaimer. The Appellate Division highlighted these points, stating, "The forum selection clause was unreasonably masked from the view of the prospective purchasers because of its circuitous mode of presentation." Hoffman, supra, at p. 23. The Appellate Division therefore ruled that the forum selection clause was presumptively invalid and reinstated Mr. Hoffman's complaint.
What This Means for Companies
The Appellate Division in Hoffman has further detailed the "fair and forthright" standard for online consumer agreements previously laid out in Caspi. Companies that sell products directly to consumers over the Internet should therefore review and, where necessary, revise their website layouts to ensure that they are conforming to the now further-defined standard. Companies should make sure that any online consumer agreements are conspicuously displayed, in a manner ensuring that consumers will see them. To be enforceable, online consumer agreements in New Jersey must conform to the "fair and forthright" standard that has now been further defined by the Appellate Division.www.daypitney.com
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