KENNETH VERCAMMEN v. LINKEDIN CORPORATION

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0188-20

KENNETH VERCAMMEN,

Plaintiff-Appellant,

LINKEDIN CORPORATION,

Defendant-Respondent.
_________________________

January 18, 2022 – Decided January 26, 2022

Before Judges Fasciale and Firko.

On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. C-000103-20.

Kenneth Vercammen, appellant, argued the cause pro
se.

Bruce W. Clark argued the cause for respondent (Clark
Michie LLP, attorneys; Bruce W. Clark and
Christopher Michie, on the brief).

PER CURIAM
Plaintiff appeals from an August 18, 2020 order denying relief requested

by order to show cause (OTSC) and dismissing his complaint with prejudice.

Plaintiff argues, primarily, that the judge denied him due process by not giving

him sufficient time to respond to defendant LinkedIn's motion to dismiss. We

disagree with that argument, affirm the order under review, but remand and

direct that the order be converted from with prejudice to without prejudice.

Consequently, plaintiff may then pursue a cause of action in accordance with

the forum selection clause.

Plaintiff is a New Jersey attorney. LinkedIn is a social networking website

for professionals headquartered in Sunnyvale, California. In June 2019, plaintiff

entered into a contract via a User Agreement with LinkedIn for one year of

premium use of LinkedIn's service. The User Agreement contains a hyperlink

to LinkedIn's terms of service, which includes a forum selection clause

mandating that any dispute concerning the contract or services must be resolved

in California.

In December 2019, LinkedIn suspended plaintiff's account after

determining that plaintiff allegedly violated multiple provisions of its User

A-0188-20
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Agreement and Publishing Platform Guidelines.1 LinkedIn terminated

plaintiff's account in January 2020 after warning him of multiple violations of

the company's policies. LinkedIn later refunded plaintiff the balance of his

subscription fee.

Thereafter, plaintiff filed a complaint and OTSC seeking reactivation of

his LinkedIn premium account, contact information for an individual LinkedIn

employee he could contact about his account, and free LinkedIn premium

service for five years, in addition to compensatory, treble, and punitive damages.

Plaintiff also brought claims for breach of warranty, negligence, common law

fraud, and consumer fraud under the Consumer Fraud Act (CFA), N.J.S.A 56:8-

1 to -20.

In lieu of filing an answer, LinkedIn filed a motion to dismiss for failure

to state a claim, arguing that the forum selection clause mandates that the dispute

be litigated in California and that plaintiff otherwise failed to state a claim for

fraud, consumer fraud, and injunctive relief. LinkedIn supported the motion

with the certification of Tsitsi Harmston, LinkedIn's Senior Legal Policy

1
LinkedIn alleges plaintiff was posting more than fifteen articles per day on the
networking site, which exceeded the permitted daily number of articles members
were permitted to post. LinkedIn staff determined plaintiff was using the articles
to advertise his business, which violated LinkedIn's Publishing Platform
Guidelines.
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Enforcement Manager, and copies of the relevant provisions of the User

Agreement. The judge conducted oral argument, entered an order denying

injunctive relief, and dismissed plaintiff's complaint with prejudice, citing the

forum selection clause.

On appeal, plaintiff raises the following points for this court's

consideration:

POINT I

A MOTION TO DISMISS FOR LACK OF PROPER
VERIFICATION AND FAILURE TO STATE A
CLAIM THAT USES MATTERS OUTSIDE THE
PLEADINGS SHOULD BE TREATED AS A
SUMMARY JUDGMENT MOTION AND BE
AFFORDED PROPER DUE PROCESS TO
RESPOND.

POINT II

THE TRIAL [JUDGE] SHOULD NOT HAVE ENDED
THE CLAIM ON THE MERITS WITH PREJUDICE
WITHOUT A WRITTEN OR ORAL OPINION.

POINT III

[PLAINTIFF'S] ABILITY TO CONSENT TO AN
ARBITRATION CLAUSE SHOULD BE FULLY
LITIGATED IN THE TRIAL COURT.

POINT IV

THERE EXISTS A GENUINE ISSUE OF FACT OF
WHETHER [DEFENDANT] VIOLATED THE [CFA].

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Plaintiff also raises the following points in reply, which we have renumbered:

[POINT V]

. . . PLAINTIFF'S COMPLAINT WAS PROPERLY
VERIFIED AND SERVED.

[POINT VI]

THERE IS A GENUINE ISSUE OF MATERIAL
FACT AS TO WHETHER [DEFENDANT]
ENGAGED IN UNCON[S]CIONABLE AND
DECEPTIVE BUSINESS PRACTICES BY
OFFERING HORRENDOUS CUSTOMER
SUPPORT.

[POINT VII]

[PLAINTIFF'S] ABILITY TO CONSENT TO A
FORUM SELECTION CLAUSE SHOULD BE
FULLY LITIGATED IN THE TRIAL COURT.

[POINT VIII]

THE CRUX OF THE ISSUE IS THAT THERE WAS
SIMPLY NOT ENOUGH TIME TO ANSWER THE
ABOVE AFFIRMATIVE DEFENSES ON AN [OTSC]
SCHEDULE.

We disagree and affirm.

We first reject plaintiff's contention that the judge erred by not treating

LinkedIn's motion to dismiss as a summary judgment motion. If a party presents

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matters outside the pleadings to support a motion to dismiss for failure to state

a claim, the judge may exclude that material. See R. 4:6-2. If the judge does

not exclude the material, "the motion shall be treated as one for summary

judgment and disposed of as provided by R[ule] 4:46." Ibid.

Judges may consider documents specifically referenced in the complaint

"without converting the motion into one for summary judgment." Myska v. N.J.

Mfrs. Ins. Co., 440 N.J. Super. 458, 482 (App. Div. 2015) (quoting E. Dickerson

& Son, Inc. v. Ernst & Young, LLP, 361 N.J. Super. 362, 365 n.1 (App. Div.

2003)). "In evaluating motions to dismiss, [judges] consider 'allegations in the

complaint, exhibits attached to the complaint, matters of public record, and

documents that form the basis of a claim.'" Ibid. (quoting Banco Popular N.

Am. v. Gandi, 184 N.J. 161, 183 (2005)). "It is the existence of the fundament

of a cause of action in those documents that is pivotal; the ability of the plaintiff

to prove [the] allegations is not at issue." Ibid. (quoting Banco Popular, 184 N.J. at 183).

Here, in addition to examining the complaint, the judge considered the

User Agreement and Harmston's certification, which detailed the various

breaches of the User Agreement. Plaintiff's complaint references a contract

between plaintiff and LinkedIn. That contract includes LinkedIn's User

A-0188-20
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Agreement and Terms of Service. We, therefore, conclude there was no error

by considering these documents as part of the motion to dismiss.

We disagree with plaintiff's assertion that the judge denied him due

process and a meaningful opportunity to respond. The schedule governing the

timing of motions and responses set by Rule 1:6-3 applies "unless otherwise

provided by court order." R. 1:6-3(a). At plaintiff's request, the matter

proceeded by OTSC with an accelerated briefing schedule. The record, and

plaintiff's own actions, belie his contention that the judge did not afford him

adequate time. Plaintiff did not ask for an extension of time and filed a reply

brief in response to LinkedIn's motion to dismiss, which failed to address the

jurisdictional issue or any of LinkedIn's arguments in opposition. We, therefore,

see no error in the judge's briefing schedule or the opportunity to respond.

II.

We review the dismissal of a complaint on legal grounds, including based

on a forum selection clause, de novo. Hoffman v. Supplements Togo Mgmt.,

LLC, 419 N.J. Super. 596, 605 (App. Div. 2011).

Plaintiff asserts he lacked reasonable notice of the terms of the User

Agreement, including the provision containing the forum selection clause. He

did not dispute the binding effect of the forum selection clause before the judge,

A-0188-20
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despite it being the focus of LinkedIn's motion to dismiss, and does not address

its validity or enforceability on appeal. LinkedIn contends plaintiff validly

assented to the "sign-in-wrap" agreement, which contained a sufficiently

noticeable hyperlink containing the User Agreement and Terms of Service.

LinkedIn further maintains that the forum selection clause is valid and

enforceable because it is not unduly oppressive and does not violate public

policy, as required under New Jersey law.

"A court lacks subject matter jurisdiction over a case if it is brought in an

ineligible forum." Id. at 606. The question of whether a forum selection clause

is binding upon a purchaser of a service "turns upon fundamental precepts of

contract law." Ibid. Thus, like any other contract, an online service contract

requires mutual assent or "a meeting of the minds." Ibid.

Forum selection clauses are prima facie valid and enforceable in New

Jersey. Caspi v. Microsoft Network, L.L.C., 323 N.J. Super. 118, 122 (App.

Div. 1999). "The courts of our State have generally enforced such forum

selection clauses, where: (1) they are not the product of fraud or undue

bargaining power, (2) they would not violate public policy, and (3) their

enforcement would not seriously inconvenience the parties at trial." Hoffman,

419 N.J. Super. at 606. "In applying these standards of enforceability, a critical

A-0188-20
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consideration is whether or not the plaintiff was provided with fair notice of the

forum selection clause." Id. at 607. "If a forum selection clause is clear in its

purport and has been presented to the party to be bound in a fair and forthright

fashion, no consumer fraud policies or principles have been violated." Ibid.

(emphasis omitted) (quoting Caspi, 323 N.J. Super. at 124). It cannot be

"proffered unfairly, or with a design to conceal or de-emphasize its provisions."

Id. at 611 (quoting Caspi, 323 N.J. Super. at 126). The issue of reasonable notice

regarding a forum selection clause is a question of law to be reviewed de novo.

Ibid.

The agreement at issue is commonly referred to as a "sign-in-wrap." Sign-

in-wraps are agreements that "notify the user of the existence of a website's

or she is agreeing to the terms of service when registering or signing up." Meyer

v. Uber Techs., Inc., 868 F.3d 66, 75-76 (2d. Cir. 2017); see also Wollen v. Gulf

Stream Restoration & Cleaning, LLC, 468 N.J. Super. 483, 495-96 (App. Div.

2021) Courts give effect to sign-in-wrap agreements, if, under a fact-sensitive

inquiry, if the user was provided with notice of the applicable terms. Wollen,

468 N.J. Super. 495-96. In Caspi, this court found enforceable a forum selection

clause, which was contained in a membership agreement that "appear[ed] on the

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[subscriber's] computer screen in a scrollable window next to blocks providing

the choices 'I Agree' and 'I Don't Agree.'" 323 N.J. Super. at 122, 125-26.

Conversely, in Hoffman, this court found a forum selection clause unenforceable

where the seller's website was unfairly structured so that the clause would not

appear on a purchaser's computer screen unless they "scrolled down to display

the 'submerged' clause before adding the product to" their cart. 419 N.J. Super.

at 598.

When completing his premium subscription order, plaintiff was required

to click a button, stating, "Start your free trial." Above the button was the

following statement:

By placing this order you agree to our terms of service.
To ensure continued service, we'll store and update
(e.g., upon expiration) your payment method. Learn
about how to cancel and our refund policy.

The reference to the "terms of service" is a hyperlink, located directly

above the button used to purchase the service, and by clicking on the reference,

the user is taken directly to LinkedIn's User Agreement. The terms of service

contains the following clause:

6. Governing Law and Dispute Resolution

....

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. . . . You and LinkedIn agree that the laws of the State
of California, U.S.A., excluding its conflict of laws
rules, shall exclusively govern any dispute relating to
this Contract and/or the Services. You and LinkedIn
both agree that all claims and disputes can be litigated
only in the federal or state courts in Santa Clara County,
California, [U.S.A.], and you and LinkedIn each agree
to personal jurisdiction in those courts.

Here, the clause was not submerged nor hidden. And, like in Caspi, the

clause was "clear in its purport and has been presented to the party to be bound

in a fair and forthright fashion." 323 N.J. Super. at 124. Therefore, plaintiff

cannot assert that he had no notice of the terms.

As to the validity of the clause itself, plaintiff never alleged that LinkedIn

acted improperly by including a forum selection clause. Plaintiff failed to meet

his burden of showing that the forum selection clause was oppressive, violated

public policy, or was unduly inconvenient to the parties. Plaintiff has not shown

that he was the subject of overwhelming bargaining power in dealing with

LinkedIn. See Carnival Cruise Lines v. Shute, 499 U.S. 585, 593-94 (1991)

(holding that a corporate vendor's inclusion of a forum selection clause in a

consumer contract does not itself constitute overwhelming bargaining power).

Furthermore, plaintiff retained the option of rejecting the contract and

LinkedIn's services. And, moreover, applying the forum selection clause does

not contravene public policy. See Wilfred MacDonald, Inc. v. Cushman, Inc.,

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256 N.J. Super. 58, 63-65 (App. Div. 1992) (noting that the enforcement of a

forum selection clause is not contrary to public policy). The judge, therefore,

did not err in dismissing plaintiff's complaint where the judge did not directly

adjudicate plaintiff's ability to consent to the forum selection clause.

III.

The forum selection clause precludes plaintiff's fraud claims; however, we

also reject plaintiff's contention that the judge erred in dismissing his complaint

where there were material fact issues as to whether LinkedIn's customer service

constituted common law fraud or fraud under the CFA on the merits.

We review a judge's decision to dismiss for failure to state a claim de

novo. MasTec Renewables Constr. Co., Inc. v. SunLight Gen. Mercer Solar,

LLC, 462 N.J. Super. 297, 309 (App. Div. 2020). Under Rule 4:6-2(e), a trial

judge must "search the complaint 'in depth and with liberality to ascertain

whether the fundament of a cause of action may be gleaned even from an obscure

statement of claim, opportunity being given to amend if necessary.'" Banco

Popular, 184 N.J. at 165 (quoting Printing Mart-Morristown v. Sharp Elecs.

Corp., 116 N.J. 739, 746 (1989)). The review must be performed in a manner

that is "generous and hospitable." Printing Mart-Morristown, 116 N.J. at 746.

Our review requires us to simply determine whether a cause of action is

A-0188-20
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"suggested" by the complaint. Ibid. (quoting Velantzas v. Colgate-Palmolive

Co., 109 N.J. 189, 192 (1988)). "[I]f the complaint states no basis for relief and

discovery would not provide one, dismissal is the appropriate remedy." Banco

Popular, 184 N.J. at 166.

To establish a common law fraud claim, a plaintiff must demonstrate that

a "defendant: (1) made a representation or omission of a material fact; (2) with

knowledge of its falsity; (3) intending that the representation or omission be

relied upon; (4) which resulted in reasonable reliance; and that (5) [the] plaintiff

suffered damages." DepoLink Court Reporting & Litig. Support Servs. v.

Rochman, 430 N.J. Super. 325, 336 (App. Div. 2013) (citing Jewish Ctr. of

Sussex Cnty. v. Whale, 86 N.J. 619, 624 (1981)). The fraud pleading must allege

"particulars of the wrong, with dates and items if necessary, . . . insofar as

practicable." R. 4:5-8(a). Plaintiff's complaint asserts that "defendant

knowingly concealed material facts with the intent that [he] rely on such

concealment" and that "[he] relied upon the concealment and omission of these

facts, to his detriment." He does not specify what LinkedIn concealed or

omitted. Plaintiff's general allegation is insufficient to state a claim for common

law fraud.

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To state a private claim under the CFA, a consumer must allege "unlawful

conduct; an ascertainable loss; and a causal relationship between the unlawful

conduct and the ascertainable loss." Heyert v. Taddese, 431 N.J. Super. 388,

412 (App. Div. 2013); N.J.S.A. 56:8-19. "Because a claim under the CFA is

essentially a fraud claim, [Rule 4:5-8(a)] requires that such claims be pled with

specificity to the extent practicable." Hoffman v. Hampshire Labs, Inc., 405 N.J. Super. 105, 112 (App. Div. 2009). Plaintiff's complaint is bereft of any

particulars that adequately allege fraud under the CFA.

IV.

Finally, we conclude that the judge properly denied injunctive relief.

Plaintiff's request for injunctive relief is also barred by the forum selection

clause, nonetheless, we address his claim on the merits.

We review a trial judge's decision to grant or deny a preliminary

injunction for an abuse of discretion. Rinaldo v. RLR Inv., LLC, 387 N.J. Super.
387, 395 (App. Div. 2006). A judge abuses his or her discretion "when a

decision is 'made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty.

Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. INS, 779 F.2d 1260, 1265 (7th Cir. 1985)).

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When determining whether a party is entitled to preliminary injunctive

relief, we must consider the four factors outlined in Crowe v. DeGioia, 90 N.J.
126 (1982). See Garden State Equal. v. Dow, 216 N.J. 314, 320 (2013)

(reiterating the factors outlined in Crowe, 90 N.J. at 132-34). First, "a

preliminary injunction should not issue except when necessary to prevent

irreparable harm." Crowe, 90 N.J. at 132. "Harm is generally considered

irreparable in equity if it cannot be redressed adequately by monetary damages."

Id. at 132-33. Second, "temporary relief should be withheld when the legal right

underlying [the] plaintiff's claim is unsettled." Id. at 133. Third, a "preliminary

injunction should not issue where all material facts are controverted." Ibid.

Under the third factor, "to prevail on an application for temporary relief, a

plaintiff must make a preliminary showing of a reasonable probability of

ultimate success on the merits." Ibid. Fourth, and finally, a judge must consider

the "relative hardship to the parties in granting or denying relief." Id. at 134.

We acknowledge that the judge did not provide a statement of reasons for

his denial in compliance with Rule 1:7-4(a). Notwithstanding this error, we find

that the judge did not abuse his discretion in denying relief because, under

Crowe, plaintiff failed to allege irreparable harm and failed to show that an

adequate remedy at law does not exist. This is especially apparent where

A-0188-20
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plaintiff sought compensatory, treble, and punitive damages. Plaintiff offered

no explanation for why this remedy, outside of his requested equitable relief,

was valid.

Plaintiff also argues that an OTSC "should not be a final adjudication on

the matter." To support this proposition, plaintiff cites Solondz v. Kornmehl,

317 N.J. Super. 16 (App. Div. 1998), contending that if the judge found that

dismissal should be granted "he should have denied the emergent relief while

allowing the controversy to proceed to be fully litigated in accordance with

principles of due process." In Solondz, the trial judge entered judgment

enforcing a contract against plaintiff because there was no material fact in

dispute. Id. at 22. Here, the judge properly dismissed plaintiff's complaint

because there was no dispute as to the legal effect of the forum selection clause.

Plaintiff contends that if the judge found that dismissal was proper, "he

should have denied the emergent relief while allowing the controversy to

proceed to be fully litigated in accordance with principles of due process."

LinkedIn does not contest that the dismissal should not have been with

prejudice. We, therefore, remand and direct the judge to modify the order to

make clear that the dismissal of plaintiff's complaint is without prejudice,

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thereby allowing him to file an action in the appropriate judicial forum in

California.

Affirmed and remanded. We do not retain jurisdiction.

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