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Forsyth v. First Trenton Indemnity Co.


May 28, 2010


On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9185-08.

Per curiam.


Argued April 27, 2010

Before Judges Carchman, Parrillo and Ashrafi.

Plaintiff Phyllis Forsyth appeals from an order of the Law Division compelling her to arbitrate her employment discrimination and retaliation claims against her former employer, defendant First Trenton Indemnity Company (First Trenton), its parent, defendant The Travelers Indemnity Companies, Inc. (Travelers), and its chief executive officer (CEO) defendant Jay Fishman,*fn1 under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the New Jersey Equal Pay Act (NJEPA), N.J.S.A. 34:11-56.1 to -56.11. Plaintiff argues that the court erred in finding that she waived her right to sue in the Law Division. We disagree, and affirm.

The record established the following facts. During her fifteen-year tenure, plaintiff was the general counsel, president, and CEO of First Trenton, a subsidiary of Travelers, a property casualty insurer. She was hired on May 10, 1993, as the company's general counsel, promoted on June 18, 2002, as its president, and in 2004, appointed its CEO. Effective December 31, 2008, following a major corporate restructuring, plaintiff's position was eliminated, and her employment with defendant terminated.

As a condition of employment, Travelers required all employees to agree to submit employment-related disputes to binding arbitration. First Trenton initially adopted Travelers' mandatory Employment Arbitration Policy (EAP) in July 1994. In a July 5, 1994 letter to all employees, First Trenton's vice president announced "enhancements to [its] existing dispute resolution procedures and the adoption of impartial binding arbitration." All disputes were to be first addressed through First Trenton's internal dispute resolution procedure (IDRP), and those disputes that could not be so resolved would be "submitted to binding arbitration in accordance with the Employment Dispute Resolution Procedures of the American Arbitration Association as modified and expanded by [Travelers]." Under the IDRP and EAP, agreement to arbitrate was "an essential element of [the] employment relationship and a condition of employment." Copies of the IDRP and EAP were attached to the July 5 letter.

Plaintiff acknowledged, in writing, receipt of the July 5 letter, and that it was her "responsibility to read and understand these policies and procedures."

First Trenton published the EAP in its 1994 employee handbook, and apparently every annual employee handbook thereafter. For instance, the August 1997 edition of First Trenton's employee handbook contained two provisions regarding the IDRP and EAP. It stated that if the IDRP did not resolve an employee's concern, "the dispute may be submitted to binding arbitration" in accordance with the company's EAP, and "[a]rbitration is an essential element of your employment relationship and is a condition of your employment." Plaintiff acknowledged receipt of the handbook and that she "underst[oo]d these policies and procedures."

In June 2003, approximately one year after plaintiff was promoted to the position of president, First Trenton distributed to its employees an updated employee handbook, which again included the EAP.*fn2 The opening provisions of the 2003 handbook stated:


As in prior years, the handbook stated that if the IDRP does not fully resolve an employment related dispute, the dispute will be submitted "to binding arbitration before the arbitration facilities of the American Arbitration Association . . . ." The handbook also reiterated that "[a]rbitration is an essential element of your employment relationship and is a condition of your employment." The EAP was attached to the handbook.

In 2004, Travelers merged with The St. Paul Companies, Inc. to become The St. Paul Travelers Companies, Inc. (St. Paul Travelers). On April 5, 2004, John Clifford, then Senior Vice President of St. Paul Travelers, sent an e-mail to all employees stating that Travelers' IDRP and EAP would remain in effect for all Travelers employees through December 31, 2004, and reminding them that: "It is your responsibility to read and understand all of our company policies. Your agreement to abide by all of these policies is an express condition of your continued employment . . . ." At the bottom of the e-mail, under a bullet-point stating "Arbitration Policy", there was a hyperlink leading the reader to the full text of the arbitration policy. As before, the e-mail stated that "[a]rbitration is an essential element of your employment relationship and a condition of employment." Clifford sent another e-mail on March 31, 2005, to St. Paul Travelers' employees, extending applicability of the Travelers EAP to all St. Paul Travelers' employees. In the same correspondence, Clifford solicited the support of all St. Paul Travelers member managers, including plaintiff, in ensuring compliance with the EAP by their employees:

As a manager at St. Paul Travelers we ask that you give the Internal Dispute Resolution/Arbitration program your full support. If you have any questions about the program please speak with your Human Resources Generalist.

Travelers also adopted a Code of Business Conduct and Ethics (Code), applicable to all employees, officers and directors. The Code referenced and incorporated the IDRP and EAP and mandated "[a]dherence to these policies and procedures . . . ."*fn3 All Travelers' employees were required to annually certify their receipt, review, and agreement with the Code as part of an annual online compliance training program. Following the online training course, employees were directed to a screen where they were requested to certify compliance with the Code.

The Certification screen for the 2008 compliance training course stated, for example:

* I have read and understand the Code of Business Conduct and Ethics and the policies incorporated within and agree that I will comply with them; . . . .

By clicking the "I certify" button below, I certify that I am in compliance with all of the above.

I Certify

Plaintiff certified her receipt, review, and agreement with the Code by completing the online compliance training course on May 8, 2006, July 18, 2007, and February 14, 2008.

On March 19, 2008, Clifford sent plaintiff an e-mail (March 19 e-mail), captioned "FINAL REMINDER: Important Policy Update -Action Required." The e-mail began by stating in large, bold letters: "IMPORTANT - Employee Policy Update Reminder." The e-mail stated, in part:

The following is an excerpt of the current HR policies, which are effective January 1, 2008. These new and updated policies replace the previous version appearing on STArt > myHR in 2007 or earlier. Any policies, which have not been specifically updated in this excerpt document, remain in full force and effect.

Please complete the following two steps as soon as possible. Your action is required.

1. Carefully Review the new/updated employee policies by clicking here. As an employee of Travelers, you are expected to read these policies and comply with them. As you carefully review the policies, you will notice that some are new while others have been modified. All policies, including these new/updated documents, are permanently housed on myHR > Employee Policies.

2. Acknowledge that you have received and reviewed the excerpt document by clicking here. With your acknowledgement, you are indicating that you have read, understand and agree to abide by these new/updated policies.

The following is a list of new/updated policies: > Arbitration Policy - updated to clarify the relief available in arbitration and disputes covered by arbitration . . . .

The e-mail further listed eighteen other new or updated policies.

Clicking the link in paragraph 1 would, as indicated, direct the employee to a page with a more detailed description of the updated policies. The updated arbitration policy was the first item listed on this page, and its heading stated, in bold font: "Travelers Employment Arbitration Policy." The policy provided that "arbitration [is] the required and exclusive forum for the resolution of all employment-related and compensation related disputes . . . " and applies to "any . . . state . . . statute, regulation or common law doctrine regarding employment discrimination."

Plaintiff's e-mail was tracked by a software application called "Campaign Monitor," which is licensed to Travelers by U4EA Design. Campaign Monitor generates a recipient activity report with respect to a specific e-mail sent to a certain employee e-mail account. The report will indicate the date and time that a specific e-mail was opened by the recipient. If the e-mail included a hyperlink, the report will indicate the date and time that the hyperlink in the e-mail was clicked by the recipient. The recipient activity report with regard to Clifford's March 19 e-mail to plaintiff showed that plaintiff opened the e-mail at 10:33 a.m. on March 20, 2008, and clicked the "clicking here" hyperlink in paragraph 2 at 10:46 a.m.

Following her termination, on November 19, 2008, plaintiff commenced a civil action against defendants alleging that, in the course of her employment, she was subject to unlawful gender discrimination, age discrimination, and unlawful retaliation in violation of the LAD and the NJEPA. In response, defendants commenced a summary action by way of a verified complaint and order to show cause, pursuant to Rule 4:67-1, to compel arbitration of plaintiff's claims in accordance with the New Jersey Arbitration Act (Act), N.J.S.A. 2A:23B-1 to -32. Following arguments, the court entered an order compelling arbitration, concluding: the competent evidence provided to the [c]court overwhelmingly shows and/or proves that, in fact, an arbitration agreement was entered into between the parties. And that [plaintiff] did, in fact, accept as a condition of continued employment and, in fact, agreed to arbitrate all employer/employee related disputes, pursuant to the employer's long standing policy.

I also find unpersuasive [plaintiff]'s argument that she never formally signed or formally accepted any agreement to arbitrate employee/employer related disputes. That is clearly not what a reasonable interpretation of the evidence would conclude or indicate.

Again, I find not only that she agreed to this policy about 1994 when the policy was first instituted or promulgated by the employer, but subsequently, at various dates -- that the aforementioned policy was amended and/or revised, she again affirmed and/or acknowledged receipt of the same and agreed and/or -- and agreed to be bound by the same.

In addition, I also find that an agreement was entered into between the parties in 2008. That is on March 20th, 2008, by virtue of the -- e-mail -- and acceptance of the e-mail by [plaintiff].

On appeal, plaintiff raises the following issues:


A. [Defendants] bear the burden of proving clearly and unmistakably the existence of a waiver of rights/agreement to arbitrate.

B. [Defendants] cannot meet their burden because the record is devoid of a clear and unambiguous agreement to arbitrate signed by [plaintiff].

C. [Defendants] have failed to prove the existence of an "Appropriate Statement" of waiver in a "Very Prominent" place.

1. [Defendants] have not proven an "Appropriate Statement" of waiver.

2. [Defendants] have not proven a "Very Prominent" waiver of rights.



We reject these contentions.

The Act authorizes courts to recognize and enforce arbitration agreements. Spaeth v. Srinivasan, 403 N.J. Super. 508, 513 (App. Div. 2008) (citing N.J.S.A. 2A:23B-5, -6). The Act provides that parties may "submit to arbitration any existing or subsequent controversy arising between the parties . . . except upon a ground that exists at law or in equity for the revocation of a contract."*fn4 N.J.S.A. 2A:23B-6. See also Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 168 N.J. 124, 131 (2001) (recognizing, as settled law, "[t]hat parties to an agreement may waive statutory remedies in favor of arbitration[,]" and this principle applies "both as a general rule and as applied specifically to claims arising under the LAD").

An agreement to arbitrate "is, at its heart, a creature of contract." Fawzy v. Fawzy, 199 N.J. 456, 469 (2009) (quoting Kimm v. Blisset, LLC, 388 N.J. Super. 14, 25 (App. Div. 2006) (internal citations omitted), certif. denied, 189 N.J. 428 (2007)). The validity and enforceability of an arbitration agreement is governed by State contract law principles, and "a state is permitted to regulate agreements . . . that relate to arbitration[] by applying its contract-law principles that are relevant in a given case." Leodori v. Cigna Corp., 175 N.J. 293, 302, cert. denied, 540 U.S. 938, 124 S.Ct. 74, 157 L.Ed. 2d 250 (2003); see Martindale v. Sandvik, Inc., 173 N.J. 76, 86 (2002).

Consistent with contract law principles, "'[t]o enforce a waiver-of-rights provision in this setting, the Court requires some concrete manifestation of the employee's intent as reflected in the text of the agreement itself.'" Leodori, supra, 175 N.J. at 300 (quoting Garfunkel, supra, 168 N.J. at 135). In Leodori, the Court held that where the employee did not sign an agreement that accompanied the employer's handbook, and there were no other explicit indications that the employee intended to abide by its provisions, the arbitration policy was not enforceable. Id. at 305.

Generally speaking, a valid agreement to arbitrate may be established in one of two ways: by a signature on an arbitration agreement or by some other explicit, affirmative expression of agreement. Id. at 305-06. Thus, there are two issues at hand: "Does the relevant waiver-of-rights provision reflect an unambiguous intention to arbitrate a[n employment related] claim? If yes, does the record before us indicate that plaintiff clearly had agreed to that provision?" Id. at 302.

Here, there is no real dispute that the arbitration agreement at issue covers plaintiff's employment-related claims against defendants. The "updated" arbitration policy provides that "arbitration [is] the required and exclusive forum for the resolution of all employment-related and compensation related disputes . . . " and applies to "any . . . state . . . statute, regulation or common law doctrine regarding employment discrimination." Plaintiff's LAD and NJEPA claims are within the scope of the EAP.

Nor does plaintiff dispute that she knew and fully understood defendants' EAP. Indeed, as president and CEO of a Travelers' subsidiary, plaintiff was responsible for implementation and enforcement of the EAP.*fn5 Moreover, as detailed by the trial judge, plaintiff was made aware of defendants' EAP on many occasions when she personally acknowledged not only her receipt, but her review and understanding of the written policy.

Rather, the essence of plaintiff's argument is that she never knowingly waived her legal rights to sue in the Law Division nor agreed to arbitrate, and that her click on the hyperlink constituted neither an electronic signature nor consent to a waiver of her rights under the LAD and NJEPA. We assess these claims against settled principles of law.

To be enforceable, an arbitration agreement "must reflect that an employee has agreed clearly and unambiguously to arbitrate the disputed claim. Generally, we determine a written agreement's validity by considering the intentions of the parties as reflected in the four corners of the written instrument." Leodori, supra, 175 N.J. at 302. While an "explicit, affirmative agreement that unmistakably reflects the employee's assent[]" is required, id. at 303, an actual, handwritten signature is not necessary. Id. at 305-06. An agreement to arbitrate may be enforced against an employee who signs it "or otherwise explicitly indicate[s] his or her agreement to it." Id. at 306 (emphasis added). An oral agreement, for example, may be the basis for an agreement to arbitrate. Kimm, supra, 388 N.J. Super. at 32; but see Leodori, 175 N.J. at 304-05 (noting that, while the Statute of Frauds, N.J.S.A. 25:1-5 to -16, requires certain agreements to be in writing to be enforceable, the absence of a party's signature on agreements not governed by the Statute is "a significant factor in determining whether the two parties mutually have reached an agreement"). Simply stated, although "a party's signature to an agreement is the customary and perhaps surest indication of assent[,]" we may nonetheless enforce a waiver provision where "we find some other unmistakable indication that the employee affirmatively had agreed to arbitrate his claims." Id. at 306-07.

By the same token, however, employers need not "negotiate individual agreements with their entire workforce to implement a company-wide arbitration policy[,]" and an employee's signature on the pre-printed agreement is sufficient to effectuate such a policy. Id. at 307. Likewise, the accompanying acknowledgement form "need not recite that policy verbatim so long as the form refers specifically to arbitration in a manner indicating an employee's assent, and the policy is described more fully in an accompanying handbook or in another document known to the employee." Ibid. "[A]n employer and its employee may agree to arbitrate their disputes by referring generally to an arbitration policy contained in a separate writing, provided that the policy itself clearly reflects the employee's knowing and voluntary waiver of rights." Id. at 308. The Court noted, by way of example, that the acknowledgment form that plaintiff did sign would have sufficed as concrete proof of a waiver had it stated that the employee had agreed to the more detailed arbitration provision contained in the handbook. (The acknowledgment form states only that plaintiff had "received" the handbook, not that he had "agreed" to its terms.) We assume that even large employers presently require their employees to sign similar forms as a routine part of the handbook-distribution process. Thus, with minimal effort, employers can revise the language to include an indication that the recipient has received and agreed to an arbitration policy. [Id. at 307.]

We have also recognized that a party may manifest assent to a contract by clicking a link on a website. In Caspi v. Microsoft Network, L.L.C., we held that a plaintiff accepted an online membership agreement, which contained a forum selection clause, where the agreement "appear[ed] on the computer screen in a scrollable window next to blocks providing the choices 'I Agree' and 'I Don't Agree.'" 323 N.J. Super. 118, 122 (App. Div.), certif. denied, 162 N.J. 199 (1999). "Prospective members assent[ed] to the terms of the agreement by clicking on 'I Agree' using a computer mouse. Prospective members ha[d] the option to click 'I Agree' or 'I Don't Agree' at any point while scrolling through the agreement." Ibid.

Here, defendants advance that plaintiff's clicking on the link in the March 19*fn6 e-mail constituted an electronic signature, pursuant to the New Jersey Uniform Electronic Transactions Act (UETA), N.J.S.A. 12A:12-1 to -26. The UETA provides that an electronic signature, which is "an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record[,]" N.J.S.A. 12A:12-2, satisfies any law requiring a signature. N.J.S.A. 12A:12-7. This definition of "electronic signature" is derived verbatim from the uniform UETA. See Uniform Electronic Transactions Act §§ 1-21 (1999). In explaining the definition of "electronic signature" under the uniform UETA, the National Conference of Commissioners on Uniform State Laws (Commissioners) in their prefatory note and comments, available at ulc/fnact99/1990s/ueta99.pdf, noted:

This definition includes as an electronic signature the standard webpage click through process. For example, when a person orders goods or services through a vendor's website, the person will be required to provide information as part of a process which will result in receipt of the goods or services. When the customer ultimately gets to the last step and clicks "I agree," the person has adopted the process and has done so with the intent to associate the person with the record of that process. The actual effect of the electronic signature will be determined from all the surrounding circumstances, however, the person adopted a process which the circumstances indicate s/he intended to have the effect of getting the goods/services and being bound to pay for them. The adoption of the process carried the intent to do a legally significant act, the hallmark of a signature. [Ibid. (emphasis added).]

The Commissioners' interpretation of the UETA, however, envisions a scenario wherein the electronic signor visits a website to purchase goods or services and "clicks" through multiple pages before being prompted to "agree" to associate with the company. In that instance, the electronic signor's active participation and demonstrated willingness to deal with that company reflects the signors "intent to sign the record." N.J.S.A. 12A:12-2. That scenario, admittedly, is quite different than the facts here, where plaintiff clicked a single link in an unsolicited e-mail.

For present purposes, however, we need not address the significance of these distinctions nor determine whether plaintiff's "click" constituted an electronic signature under the UETA because the "record as a whole" reflects a knowing and voluntary waiver of plaintiff's rights. See Leodori, supra, 175 N.J. at 305-06. First, plaintiff assented to the EAP by clicking the link in paragraph 2 of the March 19 e-mail.*fn7

Previously, she had been frequently informed that her agreement to arbitrate was an express condition of her continued employment, and "continued employment has been found to constitute sufficient consideration to support certain employment-related agreements." Martindale, supra, 173 N.J. at 88-89 (citing Quigley v. KPMG Peat Marwick, LLP, 330 N.J. Super. 252, 265 (App. Div.), certif. denied, 165 N.J. 527 (2000); Hogan v. Bergen Brunswig Corp., 153 N.J. Super. 37, 43 (App. Div. 1977)).

More significantly, plaintiff repeatedly assented to the EAP throughout her tenure with defendants. First, she acknowledged that she would "comply with all the policies and procedures" in First Trenton's handbook, including the August 1997 edition, which contained two provisions regarding the IDRP and EAP. As noted, the handbook stated that if the IDRP did not resolve an employee's concern, "the dispute may be submitted to binding arbitration" in accordance with respondent's EAP, and "[a]rbitration is an essential element of your employment relationship and is a condition of your employment."

Furthermore, plaintiff certified her receipt, review and agreement with Travelers' Code by completing the online compliance training course on May 8, 2006, July 18, 2007, and February 14, 2008. The Certification screen for the compliance training course specifically required acknowledgement of an agreement to comply with the Code, which referenced and incorporated the IDRP and AEP and mandated "[a]dherence to these policies and procedures . . . ."

Lastly, we cannot ignore plaintiff's former status as First Trenton's general counsel and later president and CEO. Although we may not infer her assent to waiver based simply and solely on her former corporate positions, see Leodori, supra, 175 N.J. at 306 (holding that the plaintiff's "status as an attorney does not alter our disposition provided that he truly had not intended to waive his rights"); Garfinkel, supra, 168 N.J. at 136 (noting that "[i]rrespective of plaintiff's status or the quality of his counsel, the Court must be convinced that he actually intended to waive his statutory rights"), we may nevertheless consider her tenure at the company as part of the "record as a whole." Leodori, supra, 175 N.J. at 305-06.

In contrast to Leodori, where the Court refused to enforce an arbitration agreement that the employee had not signed, id. at 306-07, here, the record as a whole shows a knowing and voluntary waiver of plaintiff's rights under the LAD and NJEPA and her assent to binding and mandatory arbitration.


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