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 mechanism or setting for the
proceeding is important because the rights associated with
arbitration forums may differ depending on which forum the
parties choose, or on how they define the arbitral process.
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
plaintiff's 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 - a weight loss, weight
management, and nutrition company - for twenty-six years.
During that time, plaintiff provided weight loss counseling.
Defendant gradually reduced plaintiff's 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 [plaintiff's] 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
over to the [p]laintiff." In other words, the judge -
not the parties - decided who would pick the forum.
appeal, plaintiff primarily argues that the arbitration
agreement lacked mutual assent and is therefore invalid as a
matter of contract law. She maintains that the parties did
not reach a "meeting of the minds" as to the rights
that replaced her right to a jury trial. She also argues that
the arbitration agreement is unconscionable.
courts exercise de novo review of a judge's decision on
the enforceability of contracts, such as an arbitration
clause. Morgan v. Sanford Brown Inst., 225 N.J. 289,
302-03 (2016). Whether a contractual arbitration clause is
enforceable is a legal issue; therefore, this court affords
no special deference to the judge's determination of that
issue. Hirsch v. Amper Fin. Servs., LLC, 215 N.J.
174, 186 (2013).
begin by addressing plaintiff's contention that the
arbitration agreement is invalid as a matter of law.
Plaintiff emphasizes that there are significant consequences
to the absolute absence of any reference in the arbitration
agreement as to the process for generally selecting an
arbitration forum. She asserts that without that information
communicated somehow in the agreement - whether it be by
designating AAA, JAMS, or some other mechanism intended to
replace her right to a jury trial - there exists no mutual
principles of law govern our analysis. The Federal
Arbitration Act (FAA), 9 U.S.C.A. §§ 1 to 16, and
the New Jersey Arbitration Act, N.J.S.A. 2A:23B-1 to -32,
reflect federal and state policies favoring arbitration of
disputes. Roach v. BM Motoring, LLC, 228 N.J. 163,
173-74 (2017). Congress enacted the FAA "to 'reverse
the longstanding judicial hostility' towards arbitration
agreements and to 'place arbitration agreements upon the
same footing as other contracts.'" Id. at
173 (quoting Gilmer v. Interstate/Johnson Lane
Corp., 500 U.S. 20, 24 (1991)).
Atalese v. United States Legal Services Group, L.P.,
the New Jersey Supreme Court recognized that "[t]he FAA
requires courts to 'place arbitration agreements on an
equal footing with other contracts and enforce them according
to their terms.'" 219 N.J. 430, 441 (2014) (quoting
AT&T Mobility v. Concepcion, 563 U.S.
333, 339 (2011)). As to the application of contract law
principles to arbitration agreements, the Court stated:
"[A] state cannot subject an arbitration agreement to
more burdensome requirements than" other contractual
provisions. An arbitration clause cannot be invalidated by
state-law "defenses that apply only to arbitration or
that derive their meaning from the fact ...