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A Ticking Time Bomb: Existing Arbitration Clauses in Light of New Law

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By:         Jacqueline A. Muttick, Esq.
               Associate, New Jersey
Date:      December 3, 2018


While there is a strong public policy in favor of arbitration, the Appellate Division in Flanzman v. Jenny Craig, Inc., et al., __ N.J. Super. __ (App. Div. 2018), has held that arbitration provisions need to specify the arbitral forum or otherwise set forth the process for arbitration in order to be enforceable. The Appellate Division, in a November 13, 2018, published opinion that superseded its prior October 17, 2018, opinion, held that an arbitration clause that did not specify the forum or process for arbitration was unenforceable, as there is no “meeting of the minds” when the parties do not understand the rights that replace the right to a jury trial.

The Court found that parties to an arbitration agreement must select the forum, like the American Arbitration Association (“AAA”) or the Judicial Arbitration and Mediation Services (“JAMS”), or otherwise set forth the process for arbitration at the time of the agreement. Failure to specify the forum or set forth the process for arbitration may result in an unenforceable arbitration agreement.

In Flanzman, plaintiff filed a lawsuit for employment discrimination and defendant, relying upon an arbitration clause, sought to compel arbitration. The clause at issue specifically stated the following:
“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.”
While the trial court compelled arbitration, the Appellate Division reversed and held that there is no “meeting of the minds” between the parties when the arbitration clause lacks an agreed upon forum or process for arbitration. Citing Atalese v. United States Legal Services Group, 219 N.J. 430 (2014), the Court explained that arbitration agreements, like any other contract, require mutual assent and a “meeting of the minds” before the agreement will be found enforceable. Parties to an arbitration agreement must “clearly and unambiguously” agree to waive their otherwise statutory right to a trial, and the parties must understand the ramifications of that waiver. “[T]o understand the ramifications of a waiver of a jury trial, the parties must generally address in some fashion what rights replace those that have been waived.”

This fashioning includes setting forth the arbitrator(s) who will be used, or identifying an arbitral institution, like AAA or JAMS. Selection of an arbitral institution “informs the parties about the right that replace those that they waived in the arbitration agreement,” including the rules, procedures, and setting for the arbitration. The Court noted that if an arbitration agreement does not specify an arbitration forum it could nonetheless suffice by setting forth the process for selecting a forum.

The Court distinguished this matter from one in which a court under the Federal Arbitration Act (9 U.S.C. §5) or the New Jersey Arbitration Act (N.J.S.A. 2A:23B-11(a)) could appoint an arbitrator. The Court noted that the case under review was not a matter in which the parties could not select an arbitrator; rather, in this matter the forum, not the arbitrator, was unspecified. In the absence of a forum or forum selection process, there was no “meeting of the minds” or agreement to arbitrate.

The Court stressed in its ruling that there are no “talismanic words” required in an arbitration provision to make it enforceable, other than the requirement for a “clear mutual understating of the ramifications” of judicial waiver as set forth in Atalese. Since the arbitration provision in Flanzman did not set forth any arbitration forum or process for choosing an arbitration forum, or otherwise specify the rights replacing the right to proceed in court, the clause was unenforceable.

While the Appellate Division emphasized that this ruling does not require specific language in an arbitration clause to make it enforceable, it does add a previously unarticulated condition for such clauses to be valid. The Court in Atalese mandated that arbitration provisions clearly and unambiguously state that parties waive the right to seek relief in court and instead elect arbitration. The Flanzman ruling now requires the arbitration forum, or the process of choosing a forum, be denoted in sufficient detail so the parties understand the replacement forum.

While Flanzman dealt with an employment matter, it will likely have a far-reaching impact on arbitration clauses in other contracts, especially contracts between “sophisticated parties” and individuals. Now, parties seeking to enter into arbitration agreements need take heed not only to waive explicitly the right to bring an action in court (as required by Atalese), but also to specify the arbitration forum or forum-selection process in accordance with Flanzman.



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