JEFFREY SANTANA VS. SMILEDIRECTCLUB, LLC (L-3156-21

JEFFREY SANTANA VS. SMILEDIRECTCLUB, LLC (L-3156-21 Plaintiff filed a products-liability complaint against defendant, alleging the invisible tooth aligners he purchased on-line damaged his teeth and resulted in lasting injuries. Defendant moved to dismiss the complaint, citing an arbitration provision that was embedded in the first of three hyperlinked underlined documents that appeared in different colored font. The hyperlinked document, entitled "Informed Consent," included not only the arbitration agreement but also explanations of the benefits and risks of using the aligners, representations by plaintiff regarding his oral health, and his consent to the treatment. Users could not proceed to open an account and order the aligners unless they clicked on a box next to the three hyperlinked documents, "I Agree," and another button, "FINISH MY ACCOUNT." The Law Division denied defendant's motion, relying extensively on our recent decision in Wollen v. Gulf Stream Restoration & Cleaning, LLC, 468 N.J. Super. 483 (App. Div. 2021). The court reversed, drawing distinctions between the "browsewrap" agreement at issue in Wollen, and the "clickwrap" agreement in this case. See, e.g., Skuse v. Pfizer, Inc., 244 N.J. 30, 55 n.2 (2020) ("Contracts that require 'that a user consent to any terms or conditions by clicking on a dialog box on the screen in order to proceed with the internet transaction' are sometimes called 'clickwrap' agreements," and "are 'routinely enforced by the courts.'" Skuse, 244 N.J. at 55 n.2 (first quoting Feldman v. Google, Inc., 513 F. Supp. 2d 229, 236 (E.D. Pa. 2007); and then quoting HealthPlanCRM, LLC v. AvMed, Inc., 458 F. Supp. 3d 308, 334–35 (W.D. Pa. 2020)).