C537A104d01 - Page 1 1 of 1 DOCUMENT STEVEN J CASPI RONALD...

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1 of 1 DOCUMENT STEVEN J. CASPI, RONALD W. JONAS, ARDEN JEFFREY CONE III, AND LAUREL BARRIE, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS, v. THE MICROSOFT NETWORK, L.L.C., AND MICROSOFT CORPORATION, DEFENDANTS-RESPONDENTS. A-2182-97T5 SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION 323 N.J. Super. 118; 732 A.2d 528 ; 1999 N.J. Super. LEXIS 254 January 5, 1999, Argued July 2, 1999, Decided SUBSEQUENT HISTORY: [***1] Approved for Publication July 2, 1999. As Amended July 12, 1999. PRIOR HISTORY: On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Bergen County. CASE SUMMARY: PROCEDURAL POSTURE: Plaintiffs appealed the decision of the Superior Court of New Jersey, Law Division, Civil Part, Bergen County (New Jersey), which granted defendants' motion to dismiss plaintiffs' breach of contract, common law fraud, and consumer fraud suit. OVERVIEW: Plaintiff members of defendants' on-line computer service filed suit for breach of contract, common law fraud, and consumer fraud. Before becoming a member of defendants' service, a prospective subscriber was required to agree to the terms of the membership agreement, which contained a forum selection clause. Members were required to click either "I agree" or "I don't agree" to the membership agreement. A potential subscriber could only use defendants' services after clicking "I agree." Affirming the decision of the lower court granting defendant's motion to dismiss the complaint for lack of jurisdiction, the court held that plaintiffs failed to meet any of the exceptions to the general rule that forum selection clauses were prima facie valid and enforceable. Because plaintiffs were not subject to overwhelming bargaining power, where there were several competitors in the provision of on-line services, and because enforcement of the clause would not violate the strong public policy of New Jersey and would not seriously inconvenience trial, the court agreed that clause was enforceable. OUTCOME: The judgment of the lower court granting defendants' motion to dismiss plaintiffs' complaint for lack of jurisdiction was affirmed where plaintiffs failed to meet their burden in establishing that the forum selection clause was not valid. CORE TERMS: forum selection clause, membership, notice, consumer fraud, bargaining power, computer screens, overweening, subscriber, on-line, public policy, inconvenience, cruise, travel, question of law, computer service, class action, general matter, material misrepresentation, adequate notice, contracting party, fine print, enforceability, certification, communicated, electronic, recipient, placement, consumer, clicking, unfairly LexisNexis(R) Headnotes Page 1
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Civil Procedure > Venue > General Overview Contracts Law > Contract Conditions & Provisions > Forum Selection Clauses [HN1] Generally, forum selection clauses are prima facie valid and enforceable in New Jersey. New Jersey courts will decline to enforce a clause only if it fits into one of three exceptions to the general rule: (1) the clause is a result of fraud
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