Three recent Appellate Division opinions address the issue of whether and how far the consumer-protective requirements of Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430 (2014), for individual consumers in contracts of adhesion should be applied to agreements between sophisticated business parties to arbitrate. In County of Passaic v. Horizon Healthcare Servs., Inc., 474 N.J. Super. 498 (App. Div.), certif granted, ___N.J.___(2023), the Appellate Division held that sophisticated commercial parties to an arbitration agreement, represented by counsel, reasonably understood the nature of arbitration and, therefore, need not have met the Atalese requirement of an explicit statement that arbitration waived the parties’ right to resolve their dispute in a court and/or with a jury.

In a subsequent unpublished opinion, the court further explained the relevance of the parties’ sophistication in analyzing arbitration agreements. Arbor Green Condo. Ass’n v. Start 2 Finish Restoration & Bldg. Servs., No. A-2056-21, 2023 N.J. Super. Unpub. LEXIS 620 (App. Div. Apr. 24, 2023) involved a contractor’s effort to compel arbitration required by a standard AIA form contract in which the plaintiff had checked the arbitration box. The court noted that plaintiff was a sophisticated condominium association contracting for multi-million-dollar construction work—a task not unlike what it had done regularly. Following pre-Atalese cases, it noted that “The record lacks any evidence of an unequal bargaining power between the parties, a lack of sophistication, or of other evidence supporting plaintiff’s claims it did not understand it had to arbitrate its claims against defendant.” It affirmed the order compelling arbitration.