Don’t Make Enemies With Website Ts&Cs

Consumers using state consumer protection statutes for class actions against internet sites selling products or services into their states.

By Benjamin P. Michaelson

Plaintiffs’ lawyers are at it again. New target, website terms and conditions. Certain states, New Jersey in particular, have consumer protection statutes. Consumers have been using these statutes to target on-line retailers. These class action suits are targeting website terms and conditions, disclaimers, advertisements, “click through” contracts and other boilerplate statements. These statutes prohibit sellers from:

“offer[ing] to any consumer or prospective consumer or enter[ing] into any written consumer contract or giv[ing] or display[ing] any written consumer warranty, notice or sign” in the course of business that includes any provision that violates a “clearly established legal right” of a consumer or responsibility of a seller under New Jersey state or federal law.”

The kickers? First, liability can exist simply for having the violating language in the contract, regardless of whether or not the plaintiff exposed to the language suffered any actual harm or economic loss. Second, you don’t need to be physically in that state to be subject to liability, so long as your website is available to consumers to engage in commerce through in those states, you can be held liable.

The takeaway is that, if you are conducting commerce, for products, services, or information, in exchange for a fee of any kind, through the internet, be sure that your content is in compliance with applicable law.