Posted May 16, 2011 12:56 pm CDT
A lawyer who was dissatisfied with the sexual enhancement pills he bought over the Internet will be able to proceed with his lawsuit because of a favorable ruling by a New Jersey appeals court.
Lawyer Harold Hoffman of Englewood will be able to sue in New Jersey, despite an online disclaimer requiring all litigation to be brought in Nevada, NorthJersey.com reports. The opinion (PDF) by the Appellate Division of the Superior Court of New Jersey said the disclaimer is “presumptively unenforceable” because it was at the bottom of an online page that could not be seen unless buyers scrolled down.
Hoffman claims two vendors, Supplements Togo Management and World Class Nutrition, didn’t have any evidence to back up their online claims for their product, “Erection MD.” The ads promise “maximum performance,” enhanced sex drive and “ultimate stamina.”
A trial judge had dismissed Hoffman’s suit because of the Nevada litigation requirement and because the lawyer failed to prove any “ascertainable loss.” The judge noted Hoffman was a “repeat litigator” in the field of consumer fraud.
The appeals court reversed on both the disclaimer and loss issues. Hoffman’s loss allegations were sufficient to withstand dismissal, the court said.
A lawyer for the defendants, Scott Shaffer, told NewJersey.com that his clients “look forward to ultimately prevailing on the merits.