Scherillo v. Dun & Bradstreet, Inc. 2010 WL 537805 Clickthrough Agreement with Acknowledgement Checkbox Enforced
Facts <ul><li>Plaintiff brought the action for gross negligence and negligent misrepresentation </li></ul><ul><li>Defendant’s negligence in providing him with a financial report regarding Agape caused him to maintain an existing investment and invest additional funds with Agape </li></ul><ul><li>Agape was operating a Ponzi scheme and was insolvent </li></ul>
Forum Selection (28 U.S.C. § 1404(a)) <ul><li>Defendant argued that the case should be transferred to the District of NJ because the plaintiff agreed to a forum selection clause when he purchased the report </li></ul>
Clause was Reasonably Communicated to Plaintiff <ul><li>Website has included a page that requires users to register before purchases a Dun and Bradstreet product </li></ul><ul><li>On the page, users input information, including their email address and name </li></ul><ul><li>On the bottom of the page, there is a scrollable box, which includes the Terms and Conditions </li></ul>
Terms and Conditions <ul><li>This agreement and performance hereunder shall be governed by and construed in accordance with the laws of the State of NJ, USA and any action, suit, or proceeding instituted hereunder shall be maintained in the courts of the State of NJ, USA, or the federal courts located in the state of NJ, USA, which shall have exclusive jurisdiction for such purposes. </li></ul>
Checkbox <ul><li>There is a text box that reads that “I have read and AGREE to the terms and conditions shown above.” </li></ul><ul><li>The user must check an empty box beside this text in order to complete the registration </li></ul>
Holding <ul><li>Court determined that plaintiff knowingly and voluntarily checked the terms and conditions box and assented to the clause. </li></ul>
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