Walmart Class Action Lawsuit Challenges Website Terms of Use

A Walmart online customer is bringing a consumer class action lawsuit against the giant retailer, alleging its website’s terms and conditions violate consumers’ rights under New Jersey law.

Plaintiff Michelle Murphy says Walmart imposes “unfair, one-sided and illegal provisions” in the “Terms of Use” that shoppers must accept in order to complete their online purchases. Murphy says she had to submit to these terms and conditions on the two occasions in November 2015 when she made purchases from the store’s website walmart.com.

The wording at issue are within the “Terms of Use” found on Walmart websites. Included within these “Terms of Use” is language that purports to absolve Walmart of any responsibility for the information provided on the websites. Murphy’s Walmart class action lawsuit quotes this language as telling the consumer: “If you find a product is not as described, your sole remedy is to return it in unused condition (excluding products that are not eligible for return).”

Elsewhere in the “Terms of Use,” Walmart disavows responsibility for the proper functioning of the website, Murphy says. Yet another section of the “Terms of Use” requires the user to indemnify Walmart for apparently all possible liability arising out of the consumer’s own use of the Walmart website and to defend Walmart from any related legal claims at the user’s own expense, the lawsuit states.

Finally, a section labeled “Limitation of Liability” purports to absolve Walmart from all possible legal liability arising out of the consumer’s use or inability to use Walmart’s websites.

Murphy says that some of Walmart’s terms and conditions violate New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act. The TCCWNA governs the terms that retailers like Walmart put in consumer contracts. It forbids terms that would be illegal or unenforceable, or that would require the consumer to give up certain consumer rights well-established under New Jersey law.

In enacting the TCCWNA, the legislature commented that the very inclusion of such terms in a consumer contract tends to deceive the shopper into thinking those terms are enforceable and therefore induces consumers to give up their rights.

Murphy argues that the Walmart “Terms of Use” attempt to extinguish consumer’s rights under the New Jersey Consumer Fraud Act and common law. By doing so, they violate the TCCWNA, she says.

Even a provision in the “Terms and Conditions” that notifies the consumer that not all terms in the document may be enforceable, constitutes a TCCWNA violation, Murphy says. She says the act requires such a provision to clearly identify which provisions are void, inapplicable, or unenforceable in New Jersey.

If the proposed Class is certified, Murphy’s Walmart class action lawsuit will represent all residents of New Jersey who made a purchase on walmart.com that was subject to the “Terms of Use” found on that website.

Murphy is seeking an award of damages to cover the actual harm she and the proposed Class Members have suffered, or at least the statutory minimum. She is also seeking reimbursement of her court costs and attorneys’ fees.

Plaintiff’s counsel is Robert J. Berg and Peter N. Freiberg of Denlea & Carlton LLP.

The Walmart Website Class Action Lawsuit is Michelle Murphy v. Walmart Stores Inc., et al., Case No. 2:16-cv-02629, in the U.S. District Court for the District of New Jersey.