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Flanzman v. Jenny Craig, Inc.

Superior Court of New Jersey, Appellate Division

October 17, 2018

MARILYN FLANZMAN, Plaintiff-Appellant,
v.
JENNY CRAIG, INC., LILLIAS PIRO, individually, and DENISE SHELLEY, individually, Defendants, and JC USA, INC., Defendant-Respondent.

          Submitted September 24, 2018

          On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6238-17.

          Zatuchni & Associates, LLC, attorneys for appellant (David Zatuchni, on the brief).

          Ogletree, Deakins, Nash, Smoak & Stewart, PC, attorneys for respondent (Sharon P. Margello and Jocelyn A. Merced, on the brief).

          Before Judges Messano, Fasciale and Rose.

          OPINION

          FASCIALE, J.A.D.

         This appeal requires us to decide whether to invalidate an arbitration agreement because the parties failed to identify any arbitration forum and any process for conducting the arbitration. In general, a forum is the mechanism -or setting - that parties use to arbitrate their dispute. They could have designated an arbitral institution (like the American Arbitration Association (AAA) or the Judicial Arbitration and Mediation Services (JAMS)), or they could have communicated a general method for selecting a different arbitration setting. The process is important because the rights associated with arbitration forums differ depending on which is chosen, or how the arbitral process is defined. Here, the agreement ignored the subject altogether.

         We hold that the parties lacked a "meeting of the minds" because they did not understand the rights under the arbitration agreement that ostensibly foreclosed plaintiffs right to a jury trial. We therefore reverse the order compelling arbitration for lack of mutual assent.

         I.

         At the time of her termination, plaintiff was eighty-two years old. She had worked for defendant JC USA, INC. - a weight loss, weight management, and nutrition company - for twenty-six years. During that time, plaintiff provided weight loss counseling. Defendant gradually reduced plaintiffs full-time hours to only three hours per week. The substantial reduction in hours led to her termination.

         Plaintiff filed her complaint alleging (1) age discrimination and harassment in violation of the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49; (2) discriminatory discharge and/or constructive termination in violation of the NJLAD; and (3) aider and abettor liability under the NJLAD. Defendant then filed its motion to compel arbitration relying on the parties' arbitration agreement.

         Plaintiff has no recollection of signing the document that contained the arbitration agreement, which the parties did not execute when defendant hired her. Rather, in 2011, twenty years after she was hired, defendant presented plaintiff with the document, which she signed to maintain her employment. In pertinent part, the agreement provides:

         Arbitration Agreement

Any and all claims or controversies arising out of or relating to [plaintiffs] employment, the termination thereof, or otherwise arising between [plaintiff] and [defendant] shall, in lieu of a jury or other civil trial, be settled by final and binding arbitration. This agreement to arbitrate includes all claims whether arising in tort or contract and whether arising under statute or common law including, but not limited to, any claim of breach of contract, discrimination or harassment of any kind.
. . . [Plaintiff] will pay the then-current Superior Court of California filing fee towards the costs of the arbitration (i.e., filing fees, administration fees, and arbitrator fees)....

[(Emphasis added).]

         If enforceable, plaintiff gave up her right to a jury trial by executing the agreement. That is not an issue. The agreement, however, said nothing about what forum generally replaced that right (although it confusingly referred to California court filing fees). The judge recognized this important omission when he suggested that "the choice of which arbitral body would conduct the arbitration would be turned ...


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