On Feb. 8, 2023, in County of Passaic v. Horizon Healthcare Services, the New Jersey Appellate Division affirmed the validity of a commercial arbitration agreement that did not contain a jury waiver. While more of a clarification than a radical change in the law, this decision is important. Contracting entities, including those in the health care industry, need to approach language differently depending on whether they are dealing with a consumer or employment agreement or an arm’s-length commercial contract.

In this health care setting, the plaintiff contracted with the defendant to manage its self-funded employee health benefit plan. Negotiations were through counsel and the contractual relationship was a longstanding one. The provision requiring arbitration under the Federal Arbitration Act (FAA) was inserted in 2009 and the suit was brought in 2021. The relationship existed over approximately 20 years.