Submitted September 24, 2018
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
Judges Messano, Fasciale and Rose.
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.
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.
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.
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
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:
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)....
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