In finding that an arbitration agreement must do more than say merely that all disputes must be arbitrated—without specifying the arbitrator, his or her qualifications, an arbitration provider (such as the American Arbitration Association, ICC or JAMS), or the means for selecting the arbitrator—the Appellate Division has introduced a new element for an arbitration contract that will require parties to rewrite their pre-dispute arbitration clauses in employment, consumer and commercial contexts—all for no reason. Our Supreme Court should review the matter and reverse before it upsets the federal and state statutory scheme in place for decades.

In Flanzman v. Jenny Craig, Inc., __ N.J. Super. __, 2018 N.J. Super. LEXIS 156 (N.J. Super. Ct. App. Div.  Nov. 13, 2018), a long-time Paramus employee, 82 years old, sued her employer in Bergen County Superior Court for wrongful termination under the New Jersey Law Against Discrimination. The employer moved to dismiss the litigation, based on a contract the employee personally signed in 2011 requiring arbitration. Importantly, the clause explained that arbitration was “in lieu of a jury or other civil trial” as would be required by the New Jersey Supreme Court three years later in Atalese v. United States Legal Services Group, L.P., 219 N.J. 430 (2014), and explicitly covered statutory claims of discrimination. The standardized clause called for plaintiff to pay only the fees that would be required if she were to sue in California, no doubt because that is the location of the employer’s headquarters and HR Department, but the clause contained no further specificity as to the forum or arbitration rules to be applied.