New Jersey Appellate Division Upholds E-commerce Clickwrap Agreement Requiring Arbitration of Product Liability Dispute
By Paul V. Esposito
Siding with a telemed group offering alternatives to orthodontic braces, the Court ruled that the “clickwrap” agreement signed by a user required arbitration of his product liability claim. Santana v. SmileDirectClub, LLC, 2023 N.J. App. LEXIS 36 (4/3/23). A clickwrap agreement requires an electronic physical manifestation of assent. The arbitration provision was contained in a clearly hyperlinked “Informed Consent” document explaining the benefits and risks of the product and requiring the user to check the “I Agree” box. The notation “AGREEMENT TO ARBITRATE” in the Informed Consent document should have told the user that the provision was important. He could not finish the transaction without checking the “I Agree” box.