Always click on the user agreement link! | Saiber LLC

In a recent case decided by the New Jersey Appellate Division – Vercammen v. LinkedIn Corp. – The court upheld the dismissal of a lawsuit filed by a New Jersey attorney who terminated his LinkedIn premium membership due to his alleged multiple social violations. the media network’s policies, even after being warned that its posting practices violated LinkedIn’s policies. LinkedIn terminated the attorney’s account for posting more than 15 articles per day (which exceeded the number of articles members were allowed to post) and for using the articles to advertise his company in violation of the site’s publishing platform guidelines.

All of the attorney’s claims – for breach of contract, breach of warranty, injunction, negligence, fraud and consumer fraud – were dismissed with trial-level prejudice, among other reasons, the attorney’s failure to comply the forum selection clause in LinkedIn’s User Agreement, which required disputes to be settled in California.

On appeal, the attorney argued that he “lacked reasonable notice” of the terms of LinkedIn’s user agreement, including the forum selection clause. The court, however, rejected this argument. The court initially noted that the choice of court clauses are “prima facie valid and enforceable in New Jersey” and concluded that a key consideration in determining the enforceability of these clauses is whether the plaintiff has received a reasonable notice of the choice of court clause.

Here, the court found that in order to end their premium membership subscription, the plaintiff had to click on a button that read: “Start your free trial”. Immediately above this button was the following statement: “By placing this order, you agree to our Terms of Service.” The words “Terms of Service” were a clickable hyperlink to LinkedIn’s User Agreement which contained the Forum Selection Clause. The Appeals Division found that “the clause was neither hidden nor submerged”, so it rejected the plaintiff’s claim that he had not been advised of its terms. Thus, the court upheld the trial court’s final decision to dismiss the action, but remanded the case so that the trial judge could vary the order to reflect that the dismissal was without prejudice, which would allow plaintiff to pursue claims against LinkedIn in California pursuant to the Forum Selection Clause in the Terms of Use.

Parties to contracts are often urged to “always read the fine print”. In the digital age, parties must not only read the fine print, but must also click on the hyperlinks that will take them to where the fine print can be found.

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