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,
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
323 N.J. Super. 118;
; 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.
On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Bergen County.
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.
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.
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
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