On April 3, 2023, the New Jersey Appellate Division in Jeffrey Santana v. SmileDirectClub, LLC, Docket A-2433-21, __ N.J. Super. __ ( App. Div. April 3, 2023), issued an opinion enforcing an arbitration provision found within an e-commerce "clickwrap" agreement.
The defendant, SmileDirectClub, LLC ("SDC"), offers a platform enabling dentists and orthodontists to provide clear-aligner treatment. In order to receive the treatment, a user must create an on-line account. In order to create the account, the user must check a blank box that states, "I agree to SmileDirectClub's Informed Consent and Terms & SmilePay Conditions." The hyperlinked "Informed Consent" document contained a mandatory arbitration agreement among other provisions.
After purchasing clear aligners from SDC, the plaintiff, Jeffrey Santana, later filed a products liability action alleging personal injuries resulting from use of the aligners. SDC moved to dismiss the complaint arguing the matter was subject to the mandatory arbitration agreement. The plaintiff opposed, arguing that (a) the agreement was hidden from view; and (b) SDC had waived its right to compel arbitration by engaging...
