We previously considered the lawsuit by New Jersey lawyer Harold Hoffman’s lawsuit over his dissatisfaction his male enhancement drug purchased from Supplements Togo Management and World Class Nutrition. It appears that “Erection MD” did not help his juris doctor and he sued. After losing in the court below, the New Jersey appellate court has now revived his flaccid lawsuit. (Ok, that is the last double entendre).

Hoffman is arguing that the defendants violated the Consumer Fraud Act, N.J.S.A. 56:8-1-184, and the common law through false and exaggerated representations. Hoffman alleges that while the website says “Erection MD” (sold for $59.99 per bottle) as containing “a proprietary blend” of special ingredients that are in fact ingredients “commonly found in diet pills and energy drinks.”

However, the defendants insisted that they included the following disclaimer:

The information on this website reflects the opinion of our staff and manufacturers and should not be interpreted as medical advice. The descriptions and statements accompanying these products and vitamin supplements have not been evaluated by the FDA. These products are not intended to diagnose, treat, cure or prevent any disease. They are for use by healthy adults only. Consult your physician before beginning any bodybuilding or fitness program. Keep all products out of the reach of children. By placing your order with STG Investors, LLC5 you are agreeing that any and all litigation will take place in the state of Nevada.

What is fascinating is that Hoffman makes his living suing companies for advertising violations and “does not contend that he ingested any of the pills. Four days after receiving the shipment of the product, plaintiff filed the instant lawsuit in the Law Division.”

The court lays out a well-considered analysis of the difference between traditional contracts and Internet provisions. It finds that the placement of the disclaimer was key and that, because it was placed at the bottom of the page, Hoffman is not expected to scroll down to read it before buying the product.

Defendants provide nothing to contradict plaintiff’s contention that the forum selection clause would not be visible on an Erection MD purchaser’s computer screen unless he or she scrolled down to a submerged portion of the webpage where the disclaimer containing the clause appeared. Nor do defendants rebut plaintiff’s contention that if a purchaser selected one of their products (such as Erection MD) advertised on the site, by clicking that item and adding it to his or her electronic “shopping cart,” the webpage would skip ahead to new pages that do not contain the disclaimer.

It is a compelling decision where the court tries to address the dominance of Internet sales and how such sales fit with conventional contractual doctrines. In the end, this does not mean that Hoffman will prevail on the merits. It may, however, lead to Internet businesses redesigning their websites and disclaimers.

Here is the opinion: 09-41075.0.wpd