Lush Cosmetics Class Action Says Website’s ‘Terms of Use’ Illegal

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A proposed class action lawsuit filed against Lush Cosmetics LLC last week in New Jersey alleges that the company’s website terms are unlawful and violates New Jersey consumer protection laws.

Lead plaintiff Norris Hite claims that Lush’s website contains a “Terms of Use” consumer contract that purports to “impose illegal, exculpatory and other such provisions upon all users of that website and purports to nullify certain legal duties and responsibilities Defendant owes its consumers.”

Specifically, the complaint alleges that Lush is in violation of New Jersey’s Truth in Consumer Contract, Warranty and Notice Act by proclaiming the retailer is not liable for any consumer claim arising out the use of its website, including liability for harmful products and even data breaches.

Essentially, if a consumer purchases a product from Lush’s website they are required to agree to the “Terms of Use” contract which bars them from bringing claims for injury. Additionally, the website prevents consumers from seeking punitive damages in the event of an injury and limits the time period in which they can pursue claims, the complaint states.

“Despite clear law to the contrary, defendant’s terms of use purport to deprive plaintiffs of their legal right to pursue a remedy for harms arising from defendant’s tortious acts,” according to the complaint. “Similarly, the terms of use purport to absolve defendant of its responsibility to refrain from creating an unreasonable risk of harm to consumers and protecting against the unlawful acts of third parties.”

Hite alleges that by requiring customers to agree to their “Terms of Use” contract, Lush aims to circumvent its responsibility to customers, fails to protect them from potential illegal actions and deprives customers from their legal rights.

“The ‘terms of use,’ namely defendant’s ‘indemnity’ provision, requires plaintiffs and class members to indemnify and hold harmless defendant and its personnel and affiliates from a vast array or claims and liabilities that essentially involve all conceivable claims that could arise against defendant,” the class action lawsuit claims.

Hite seeks to certified the proposed class action lawsuit on behalf of New Jersey residents who were offered, given, displayed or entered into the “Terms of Use” on Lush’s website during the applicable statute of limitations. The proposed class action lawsuit seeks damages of at least $100 for each violation of state law, an order to remove the terms from Lush’s website along with attorneys’ fees and costs.

The plaintiff is represented by Gerald H. Clark, Mark W. Morris and Lazaro Berenguer of Clark Law Firm PC and Scott J. Ferrell and Victoria Knowles of Newport Trial Group.

The Lush Cosmetics Terms of Use Class Action Lawsuit is Norris Hite, et al. v. Lush Cosmetics LLC, Case No. 1:16-cv-01533, in the U.S. District Court for the District of New Jersey.