United States District Court, D. New Jersey
H. Clark, Esq. Clark Law Firm, PC 811 Sixteenth Avenue
Belmar, N.J. 07719 Attorney for Plaintiff
Geoffrey W. Castello, III, Esq. Kelley Drye & Warren LLP
One Jefferson Road 2nd Floor Parsippany, N.J.
07054 Attorney for Defendant
HONORABLE JEROME B. SIMANDLE, Chief Judge
case, Plaintiff Norris Hite alleges that the “Terms of
Use” on the website of Defendant Lush Internet, Inc.
(“Lush”) constitute a consumer contract with
exculpatory provisions that violate the New Jersey Truth in
Consumer Contract, Warranty and Notice Act
(“TCCWNA”), N.J.S.A. 56:12-14 et seq., and other
New Jersey laws. Defendant now moves to compel arbitration
and strike Plaintiff's class action allegations, stay the
action pending arbitration, and in the alternative and to
dismiss the amended complaint with prejudice under
Fed.R.Civ.P. 12(b)(6). [Docket Item 8.] For the reasons that
follow, the Court will deny Defendant's motion to compel
arbitration and grant Defendant's motion to the extent it
seeks to dismiss the Amended Complaint with prejudice.
facts in this case, as alleged in the Amended Complaint, are
straightforward. Defendant Lush sells cosmetics on the
internet. Plaintiff visited Defendant's website on or
about February 17, 2016, and purchased one of Defendant's
cosmetic products. (Amended Complaint [Docket Item 3-1]
¶ 4.) Plaintiff does not allege she has any claim about
the product that she purchased, such as fraud, product
liability or tort. Her quarrel is with the provisions of the
site. Defendant's website contains the following
through a hyperlink at the bottom of the site's homepage.
(Screenshot of lushusa.com homepage, Exhibit 1 to
Plaintiff's Brief in Opposition to Motion to Compel
[Docket Item 11-4]; see also Defendants' Brief
in Support of Motion to Compel [Docket Item 9] at 24.)
appears on the homepage unless the user finds the hyperlink.
The parties do not dispute that at the bottom line of each
webpage appears the legend in the smallest print on the page
that reads “© 2002-2016 LUSH North America. View
(See Ex. A to Def. Br. at p. 11; Ex. 1 to Pl. Request for
Judicial Notice [Docket Item 11-4 and 11-7.]) At the top of the
If You Want to Use This Site, then carefully read these
entire Terms (including all links to details), as they
constitute a written agreement between you and us and they
affect your legal rights and obligations. Each time you
access and/or use the Site (other than to simply read these
Terms), you agree to be bound by and comply with these Terms
and any Additional Terms (defined below) then posted.
Therefore, do not use the Site if you do not agree.
of Motion to Compel [Docket Item 9] at 1 (formatting in
original).) There is no opportunity, on the homepage or the
hyperlinked Terms, for the user to indicate he or she has
read and accepts the terms.
generally alleges that the exculpatory clauses contained in
because they unlawfully disclaim all tort liability and
purport to absolve Defendant of its duty to protect customers
against harm arising from third-party acts, and because they
limit consumers' rights under the New Jersey Products
Liability Act, New Jersey Punitive Damages Act, and the New
Jersey Uniform Commercial Code. The following specific
section of the Terms is relevant to the instant motion:
12. Dispute Resolution
B. Binding Arbitration.
If we cannot resolve a Dispute set forth in Section 12(A) (or
agree to arbitration in writing with respect to an Excluded
Dispute) within sixty (60) days of receipt of the notice,
then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND LUSH MUST
BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES
ANY AND ALL DISPUTES BASED ON ANY PRODUCT, SERVICE OR
ADVERTISING CONNECTED TO THE PROVISION OR USE OF THE SITE
(WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE,
TORT - INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, FRAUD, ANY
OTHER INTENTIONAL TORT OR COMMON LAW, CONSTITUTIONAL
PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR
EQUITABLE THEORY - AND WHETHER ARISING BEFORE OR AFTER THE
EFFECTIVE DATE OF THESE TERMS. The Federal Arbitration Act
(“FAA”) shall govern the arbitrability of all
disputes between Lush and you regarding these Terms (and any
Additional Terms) and the Site, including the No Class Action
Matters section below. BY AGREEING TO ARBITRATE, EACH PARTY
IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE
HEARD BY A JUDGE OR JURY. Lush and you agree, however, that
the State of California or federal law shall apply to and
govern, as appropriate, any and all claims or causes of
action, remedies, and damages arising between you and Lush
regarding these Terms and the Site, whether arising in
contract, statute, common law, or any other legal theory,
without regard to the State of California's choice of law
principles. . . .
C. Limited Time to File Claims. TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO
ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE
OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF
WRITTEN NOTICE AS SET FORTH IN SECTION 12(A)) WITHIN ONE (1)
YEAR AFTER THE DISPUTE ARISES - OR IT WILL BE FOREVER BARRED.
. . .
E. No Class Action Matters. YOU AND LUSH AGREE THAT
EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS
INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER
IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN
ASSOCIATION. . . .
G. Small Claims Matters Are Excluded from Arbitration
Requirement. Notwithstanding the foregoing, either of us
may bring qualifying claim of Disputes (but not Excluded
Disputes) in small claims court of competent jurisdiction.
website at the time she made her purchase. (Declaration of
Norris Hite in Support of her Memorandum of Law in Opposition
to Defendant's Motion to Compel Arbitration [Docket Item
11-3] at ¶¶ 4-6.) The motion is fully ...