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Hoffman v. Supplements Togo

Hoffman v. Supplements Togo

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Published by Eric Goldman

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Published by: Eric Goldman on May 20, 2011
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NOT FOR PUBLICATION WITHOUT THEAPPROVAL OF THE APPELLATE DIVISIONSUPERIOR COURT OF NEW JERSEYAPPELLATE DIVISIONDOCKET NO. A-5022-09T3HAROLD M. HOFFMAN,Individually and on behalfof the class of purchasersof Erection MD,Plaintiff-Appellant,v.SUPPLEMENTS TOGO MANAGEMENT,LLC, and WORLD CLASSNUTRITION, LLC,Defendants-Respondents. ___________________________________ Argued February 28, 2011 - DecidedBefore Judges Reisner, Sabatino, andAlvarez.On appeal from the Superior Court of NewJersey, Law Division, Bergen County, DocketNo. L-2428-10.Harold M. Hoffman, appellant, argued thecause pro se.Scott A. Shaffer argued the cause forrespondents (The Lustigman Firm P.C.,attorneys; Mr. Shaffer, on the brief).The opinion of the court was delivered bySABATINO, J.A.D.
APPROVED FOR PUBLICATIONMay 13, 2011APPELLATE DIVISION
May 13, 2011
 
A-5022-09T3
2This case arises out of the advertising and sale of adietary supplement over the internet. Plaintiff, who purchasedthe supplement, principally alleges that the defendant sellersviolated the Consumer Fraud Act, N.J.S.A. 56:8-1 to -184("CFA"), and the common law, by making false and exaggeratedrepresentations about the product's efficacy, which wereallegedly lacking in scientific or objective support. The trialcourt granted defendants' pre-answer motion to dismissplaintiff's lawsuit on two independent grounds: (1) plaintiffis precluded from suing defendants in New Jersey because of aforum selection clause contained within a disclaimer ondefendants' internet website; and (2) the complaint fails tostate a claim upon which relief can be granted because (a) itdoes not sufficiently allege that plaintiff sustained an"ascertainable loss of moneys or property" under the CFA, asrequired by N.J.S.A. 56:8-19, and (b) it does not sufficientlyallege the elements of common-law fraud.We reverse the determinations of the trial court on thesetwo discrete issues and remand for further proceedings. Inparticular, we hold that, subject to the potential developmentof additional facts on remand that might affect thejurisdictional analysis, the clause is presumptivelyunenforceable. We do so because defendants' website was
 
A-5022-09T3
3evidently structured in an unfair manner so that the clause would not appear on a purchaser's computer screen unless he orshe scrolled down to display the "submerged" clause beforeadding the product to his or her electronic "shopping cart."In addition, we reverse the trial court's order dismissingplaintiff's complaint for failure to state a cause of action.We do so because the complaint, when viewed under the generousconstruction that we must give to pleadings under Rule 4:6-2(e),sufficiently alleges the CFA element of "ascertainable loss."The complaint also sufficiently alleges the elements of common-law fraud. The complaint therefore must be reinstated, subjectto potential dispositive motion practice after discovery iscompleted.I.Although it is not fully developed, the record presents thefollowing circumstances and sequence of events relevant to thetwo key issues before us.A.Plaintiff, Harold M. Hoffman, is an attorney and a residentof New Jersey. At various times in the past, plaintiff hasbrought lawsuits, in his own name and on behalf of otherputative class members, against companies that sell and

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