## Facts

- Harold M. Hoffman bought a dietary supplement (“Erection MD”) from defendants through an online purchase.
- The website allegedly made false or exaggerated claims about the product’s efficacy and scientific support.
- The site included a disclaimer with a Nevada forum-selection clause requiring litigation to be brought in Nevada.
- The forum-selection clause was not visible on the portion of the page typically displayed during purchase unless the consumer scrolled down to see the “submerged” term.
- Hoffman sued in New Jersey, asserting claims under the New Jersey Consumer Fraud Act (CFA) and for common-law fraud based on alleged misrepresentations and omissions about efficacy.
- Defendants moved to dismiss pre-answer, arguing (1) the forum-selection clause required suit in Nevada and (2) the complaint failed to state claims, including failure to plead CFA “ascertainable loss” and elements of common-law fraud.
- The trial court dismissed on both grounds, and Hoffman appealed.

## Issues

1. Whether an online forum-selection clause placed in a non-visible, “submerged” portion of a webpage is enforceable against a consumer who could complete a purchase without seeing it.
2. Whether the complaint sufficiently pleaded (a) an “ascertainable loss of moneys or property” under the New Jersey CFA and (b) the elements of common-law fraud to survive a motion to dismiss.

## Decision

- The Appellate Division reversed the dismissal and remanded for further proceedings.
- The court held the Nevada forum-selection clause was presumptively unenforceable on the record presented because it was not fairly presented and could be missed absent scrolling.
- The court held the complaint, read with the liberal construction required on a motion to dismiss, sufficiently alleged an ascertainable loss under the CFA.
- The court held the complaint sufficiently alleged common-law fraud at the pleading stage, including misrepresentations about efficacy, reliance in purchasing, and monetary loss.

## Legal Principles

- A forum-selection clause in an online consumer transaction is generally enforceable only if reasonably communicated and presented in a fair and forthright manner.
- Online terms that are effectively hidden—such that a buyer can complete the transaction without seeing them—may not establish assent and may be treated as presumptively unenforceable.
- On a motion to dismiss, pleadings are construed liberally, and the plaintiff receives the benefit of reasonable inferences.
- For CFA pleading purposes, alleging payment for a product that allegedly lacks the represented qualities or efficacy can constitute an “ascertainable loss” sufficient to survive dismissal.
- Common-law fraud is adequately pleaded at the motion-to-dismiss stage where the complaint alleges material misrepresentations, reliance, and resulting economic damages, even if factual development is left for later proceedings.

## Conclusion

The appellate court reinstated the consumer’s CFA and fraud claims, holding that a forum-selection clause placed in a “submerged” part of a purchase webpage was not fairly presented and thus was presumptively unenforceable, and that allegations of paying for a misrepresented product were sufficient to plead economic loss and fraud at the dismissal stage.


Hoffman v. Supplements Togo Mgmt., LLC, 18 A.3d 210 (N.J. Super. Ct. App. Div. 2011)