Janell Goffe v. Foulke Management Corp Sasha Robinson and Tijuana Johnson v. Mall Chevrolet (081258) (Camden County and Statewide)

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

Janell Goffe v. Foulke Management Corp. (A-3/4-18) (081258)

Argued February 25, 2019 -- Decided June 5, 2019

LaVECCHIA, J., writing for the Court.

This consolidated appeal involves claims that fraudulent sales practices by two car
dealerships induced consumers to enter into agreements for the purchase of cars. The
question is whether plaintiffs may avoid being compelled to arbitrate those claims.

Plaintiffs challenge the formation and validity of their sales agreements on the
bases that the dealerships’ fraudulent practices and misrepresentations induced them to
sign the transactional documents and that the agreements are invalid due to violations of
statutory consumer fraud requirements. As part of the overall set of documents, plaintiffs
signed arbitration agreements. Those agreements contained straightforward and
conspicuous language that broadly delegated arbitrability issues -- issues of whether a
particular matter is subject to arbitration or can be decided by a court -- to an arbitrator.

Plaintiff Sasha Robinson contacted Mall Chevrolet in Cherry Hill about buying a
car and allegedly was told that, if she purchased from the dealership, she would have two
days within which to change her mind, return it, and get her money back. Robinson
moved ahead with the car purchase transaction that day. She signed several documents,
including one that set forth the price of the new car, various fees, the price of the trade-in,
and the deposit amount. That document included an agreement to arbitrate “all claims
and disputes arising out of . . . [the] purchase of any goods,” including disputes as to
“whether the claim or dispute must be arbitrated.” When Robinson sought to return the
Malibu, she was told that the representation about being able to rescind the deal was a
mistake and that she was bound by the documents she signed. She alleges that the
representatives attempted to “coerce” her into signing purchase documents.

Janell Goffe went to Cherry Hill Mitsubishi in response to an Internet
advertisement for a Buick. Goffe was told that she could obtain the car that day if she
traded in her 2006 Infiniti, paid $250 that day, and then later paid $750. She was told
that financing on the Buick was approved. Goffe went ahead with the proposed deal and
signed several documents -- including an arbitration agreement -- identical in form to
those that Robinson signed. When Goffe returned later with the remainder of the down
payment, she was informed that financing had not been approved and that she could
1
retain the Buick only if she agreed to a larger down payment and higher monthly
payments. Goffe refused and cancelled the deal.

Each trial court determined the arbitration agreements to be enforceable and
entered orders compelling plaintiffs to litigate their various claims challenging the overall
validity of the sales contracts in the arbitral forum. The Appellate Division reversed
those orders. 454 N.J. Super. 260 (App. Div. 2018). The Court granted defendants’
petitions for certification. 235 N.J. 202 (2018); 235 N.J. 200 (2018).

HELD: The trial courts’ resolution of these matters was correct and consistent with clear
rulings from the United States Supreme Court that bind state and federal courts on how
challenges such as plaintiffs’ should proceed. Those rulings do not permit threshold
issues about overall contract validity to be resolved by the courts when the arbitration
agreement itself is not specifically challenged. Here, plaintiffs attack the sales contracts
in their entirety, not the language or clarity of the agreements to arbitrate or the broad
delegation clauses contained in those signed arbitration agreements. The Supreme
Court’s precedent compels only one conclusion: an arbitrator must resolve plaintiffs’
claims about the validity of their sales contracts as well as any arbitrability claims that
plaintiffs may choose to raise.

1. In applying the Federal Arbitration Act (FAA), the United States Supreme Court has
provided substantial guidance on the question of whether arbitration should be compelled
in situations such this. Section two of the FAA provides that agreements to arbitrate any
controversy arising out of a commercial contract “shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for the revocation of any
contract.” 9 U.S.C. § 2. New Jersey case law acknowledges the preeminence of the
national policy established by Congress through the FAA as well as the Supreme Court’s
holdings interpreting and implementing that policy. (pp. 22-24)

2. The United States Supreme Court has held that when a plaintiff raises a claim of fraud
in the inducement of a contract as a whole -- rather than fraud in the making of the
arbitration agreement itself -- the FAA requires that the dispute be resolved by the
arbitrator. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04 (1967).
The Court held that “if the claim is fraud in the inducement of the arbitration clause itself
-- an issue which goes to the ‘making’ of the agreement to arbitrate -- the federal court
may proceed to adjudicate it. But the statutory language does not permit the federal court
to consider claims of fraud in the inducement of the contract generally.” Ibid. The
Court’s determination recognized that arbitration agreements are severable from the rest
of the contract and that the arbitration agreement may be valid separate and apart from
the contract as a whole, provided that a party has not challenged the arbitration agreement
itself. In Buckeye Check Cashing, Inc. v. Cardegna, the Court determined that “as a
matter of substantive federal arbitration law, an arbitration provision is severable from
the remainder of the contract,” and that “unless the challenge is to the arbitration clause
2
itself, the issue of the contract’s validity is considered by the arbitrator in the first
instance.” 546 U.S. 440, 445-46 (2006). The Court therefore concluded that because the
respondents in that case challenged the contract, “but not specifically its arbitration
provisions,” a challenge to those provisions “should therefore be considered by an
arbitrator, not a court.” Id. at 446. Similarly, in Rent-A-Center, West, Inc. v. Jackson,
the Court held as valid a provision in a contract that delegated to the arbitrator the
question of arbitrability under circumstances in which the plaintiff challenged only the
validity of the contract as a whole, rather than mounting a challenge to the validity of the
delegation provision specifically. 561 U.S. 63, 72 (2010). The Supreme Court of New
Jersey has acknowledged the legitimacy and applicability of the Rent-A-Center holding
to delegation provisions in New Jersey arbitration agreements. (pp. 24-28)

3. Here, plaintiffs have not attacked the language or clarity of the arbitration agreement
or its delegation clause. Rather, they have continuously maintained that the contract was
the product of fraudulent inducement and that the arbitration agreement -- within that
sales contract -- is thus also invalid. The disputed facts that plaintiffs allege go to
whether the dealerships performed a bait-and-switch related to enticing plaintiffs to enter
into the contract as a whole. Plaintiffs have not raised a specific claim attacking the
formation of the arbitration agreement that each signed. Federal precedent instructs that
the arbitration agreements here be severed from the rest of the agreement, whose totality
Goffe and Robinson contest on a number of grounds. Goffe and Robinson must arbitrate
their claims as to the enforceability of the overall sales contract. The Court does not
opine on the merits of any of those claims. (pp. 28-31)

4. Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764 (3d Cir. 2013), a
case on which the Appellate Division relied, was misapplied here. In Guidotti, the
dispositive issue was whether a document that included an arbitration clause was
included in the initial package of documents emailed to the plaintiff and, thus, whether
there was mutual assent to arbitrate. Id. at 769, 780. The Third Circuit determined under
the summary judgment standard that there was a genuine issue of material fact regarding
whether the parties agreed to arbitrate and remanded to the District Court for limited
discovery. Id. at 780. Guidotti is in line with federal case law that allows a court to
decide matters that relate directly to the formation of the arbitration agreement.
However, because plaintiffs here challenge the contract as a whole rather than the
arbitration agreement itself, the Guidotti summary judgment standard does not apply in
this instance. (pp. 31-35)

The judgment of the Appellate Division is REVERSED and the trial courts’
orders compelling arbitration are REINSTATED.

CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE
LaVECCHIA’s opinion.
3
 SUPREME COURT OF NEW JERSEY
A-3/4 September Term 2018
081258

Janell Goffe,

Plaintiff-Respondent,

v.

Foulke Management Corp. t/a Cherry Hill Triplex/Cherry Hill
Mitsubishi and Antonio (Tony) Salisbury,

Defendants-Appellants.

Sasha Robinson and Tijuana Johnson,

Plaintiffs-Respondents,

v.

Mall Chevrolet, Inc.,

Defendant-Appellant.

On certification to the Superior Court,
Appellate Division, whose opinion is reported at
454 N.J. Super. 260 (App. Div. 2018).

Argued Decided
February 25, 2019 June 5, 2019

Laura D. Ruccolo argued the cause for appellants
(Capehart & Scatchard, attorneys; Laura D. Ruccolo, of
counsel and on the briefs).

1
 Charles N. Riley argued the cause for respondents
(Charles N. Riley, on the briefs).

Jennifer Borek argued the cause for amicus curiae New
Jersey Coalition of Automotive Retailers (Genova Burns,
attorneys; Jennifer Borek, of counsel and on the brief,
and Matthew I.W. Baker, on the brief).

Joseph A. Osefchen argued the cause for amicus curiae
NAACP Camden County East (DeNittis Osefchen Prince,
attorneys; Joseph A. Osefchen and Stephen P. DeNittis,
on the briefs).

William D. Wright argued the cause for amicus curiae
New Jersey Association for Justice (The Wright Law
Firm, attorneys; William D. Wright, on the brief).

Andrew M. Milz submitted a brief on behalf of amici
curiae Consumers League of New Jersey and National
Association of Consumer Advocates (Flitter Milz,
attorneys; Andrew M. Milz, of counsel and on the brief,
Cary L. Flitter and Jody Thomas Lopez-Jacobs, on the
brief).

JUSTICE LaVECCHIA delivered the opinion of the Court.

This consolidated appeal involves claims that fraudulent sales practices

by two car dealerships induced consumers to enter into agreements for the

purchase of cars. The essential question on appeal, though, is whether

plaintiffs may avoid being compelled to arbitrate those claims.

Plaintiffs challenge the formation and validity of their sales agreements

on the bases that the dealerships’ fraudulent practices and misrepresentations

2
induced them to sign the transactional documents and that the agreements are

invalid due to violations of statutory consumer fraud requirements. As part of

the overall set of documents, plaintiffs signed arbitration agreements. Those

agreements contained straightforward and conspicuous language about

arbitration and broadly delegated arbitrability issues to an arbitrator.

Trial court orders in those individual matters compelled plaintiffs to

litigate their various common law and statutory claims challenging the overall

validity of the sales contracts in the arbitral forum. Each trial court

determined the arbitration agreements to be enforceable. The Appellate

Division reversed those orders.

We hold that the trial courts’ resolution of these matters was correct and

consistent with clear rulings from the United States Supreme Court that bind

state and federal courts on how challenges such as plaintiffs’ should proceed.

Those rulings do not permit threshold issues about overall contract validity to

be resolved by the courts when the arbitration agreement itself is not

specifically challenged.

Supreme Court holdings treat an arbitration agreement as severable and

enforceable, notwithstanding a plaintiff’s general claims about the invalidity of

the contract as a whole. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388

U.S. 395, 403-04 (1967); see also Buckeye Check Cashing, Inc. v. Cardegna,

3
546 U.S. 440, 445-46 (2006). The same approach pertains to issues of

arbitrability. In order to be decided by a court, an arbitrability challenge -- a

challenge as to whether a particular matter is subject to arbitration or can be

decided by a court -- must be directed at the delegation clause itself (which

itself constitutes an arbitration agreement subject to enforcement); a general

challenge to the validity of the agreement as a whole will not suffice to permit

arbitration to be avoided. Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 72

(2010).

We thus approach the instant matter mindful of our obligation to comply

with the Supreme Court’s holdings on the severability doctrine that applies to

arbitration agreements. Plaintiffs assert common law and statutory violation

theories that allegedly invalidate their overall sales agreements or otherwise

render them unenforceable. While we do not address the merits of those

claims, it is clear to us that plaintiffs attack the sales contracts in their entirety,

challenging their formation process and arguing that they are, at best,

unenforceable. They do not challenge the language or clarity of the

agreements to arbitrate or the broad delegation clauses contained in those

signed arbitration agreements. In this setting, the Supreme Court’s precedent

compels only one conclusion. On the question of who gets to decide plaintiffs’

general claims about the validity of their sales contracts, we hold that an

4
arbitrator must resolve them, as well as any arbitrability claims that plaintiffs

may choose to raise under these delegation clauses.

I.

A.

Plaintiffs Robinson and Goffe each signed several documents in

connection with their respective car purchases from defendant car dealerships. 1

The common forms used by the dealerships2 allow for a singular description of

the documents in issue, although we recite the alleged purchase experience of

each plaintiff.

1.

On November 5, 2016, plaintiff Sasha Robinson contacted Mall

Chevrolet in Cherry Hill about buying a car and allegedly was told that, if she

purchased from the dealership, she would have two days within which to

1 We summarize the facts as presented in the plaintiffs’ complaints, signed
certifications, and documentary exhibits.

2 The cases involve two dealerships -- Mall Chevrolet, Inc., and Foulke
Management Corp. -- that are both located in Cherry Hill. According to
defendants, the dealerships “are two separate corporate entities” and “[t]here
are simply no facts to connect Mall Chevrolet . . . to Foulke Management.”
Plaintiffs contend that the two dealerships are “closely connected” and
controlled by a “common president Charles W. Foulke Jr.” They have
submitted a copy of Mall Chevrolet’s articles of incorporation, signed by
Foulke, in support of their contention.

5
change her mind, return it, and get her money back. Later that day, she went

to the dealership and discussed purchasing a 2016 Chevrolet Malibu. Mall

Chevrolet employees told Robinson that -- in addition to trading in a Chevrolet

Cruze that she jointly owned with her mother, Tijuana Johnson -- she would

have to provide a $1000 deposit for the Malibu and that her monthly car

payment on the remaining loan would be $549. Robinson says she was told

that Johnson would be required to co-sign in order to complete the transaction.

Robinson moved ahead with the car purchase transaction that day,

signing several documents. Johnson’s signature does not appear on any of

them.

One document Robinson signed is a two-page Motor Vehicle Retail

Order (MVRO). Among other things, the MVRO lists the date of the sale,

Robinson’s address, email, phone numbers, the salesperson who worked with

her, the car she was purchasing, and the one she was trading in. The MVRO

lays out the financial terms of the transaction, including the price of the new

car, various fees, the price of the trade-in, and the deposit amount.

Robinson signed the MVRO in multiple places. Above her second

signature, the MVRO states:

Customer agrees that this Order on the face and on the
reverse side and any attachments to it includes all the
terms and conditions. . . . THIS ORDER SHALL
NOT BECOME BINDING UNTIL ACCEPTED BY
6
 DEALER OR HIS AUTHORIZED
REPRESENTATIVE. Customer by execution of this
Order acknowledges that they have read the terms and
conditions and have received a true copy of the Order.
I am 18 years of age or older and of full legal capacity
to enter into this contract. I ACKNOWLEDGE
THAT I HAVE RECEIVED, READ,
UNDERSTAND AND HAVE SIGNED THE
ARBITRATION AGREEMENT WHICH APPLIES
TO THIS TRANSACTION. CUSTOMER AGREES
THAT CUSTOMER WILL BRING ANY CLAIMS
CUSTOMER MAY HAVE HAD AGAINST
DEALER, EXCEPT FOR UCC CLAIMS BUT,
INCLUDING CLAIMS UNDER THE NEW
JERSEY CONSUMER FRAUD ACT, WITHIN 180
DAYS FROM THE DATE OF THIS AGREEMENT
AND IF NOT BROUGHT WITHIN 180 DAYS ALL
CLAIMS WILL BE TIME BARRED. UCC
CLAIMS MUST BE BROUGHT WITHIN ONE
YEAR.

Robinson also signed an arbitration agreement. The agreement is

detailed but, in relevant part, states:

In consideration of the mutual promises made in this
agreement, you and we agree that either you or we have
an absolute right to demand that any dispute be
submitted to an arbitrator in accordance with this
agreement. If either you or we file a lawsuit . . . or other
action in a court, the other party has the absolute right
to demand arbitration following the filing of such
action.

ARBITRATION: Arbitration is a method of resolving
disputes between parties without filing a lawsuit in
court. . . .

DISPUTES COVERED: This agreement applies to all
claims and disputes between you and us. This includes,
7
without limitation, all claims and disputes arising out
of, in connection with, or relating to:

 your purchase of any goods or services from us;
 any previous purchase of goods or services from
us;

....

 whether the claim or dispute must be arbitrated;
 the validity of this arbitration agreement;
 any negotiations between you and us;
 any claim or dispute based on an allegation of
fraud or misrepresentation, including fraud in the
inducement of this or any other agreement;
 any claim or dispute based on a federal or state
statute including, but not limited to the N.J.
Consumer Fraud Act, N.J.S.A. 56:8-1 et seq. and
the Federal Truth in Lending Act;

....

WAIVER OF RIGHT TO JURY TRIAL: You and we
expressly waive all right to pursue any legal action to
seek damages or any other remedies in a court of law,
including the right to a jury trial.

ARBITRATION RULES: Arbitration will be
conducted under the . . . protocol of the American
Arbitration Association . . . .

....

OTHER IMPORTANT AGREEMENTS:
1. The Federal Arbitration Act applies to and governs
this agreement . . . .

....

8
 4. If any term of this agreement is unenforceable, the
remaining terms of this agreement are severable and
enforceable . . . .

....

10. CUSTOMER AGREES TO WAIVE THE
APPLICABLE STATUTE OF LIMITATIONS AS
FOLLOWS: CUSTOMER AGREES THAT IT WILL
BRING ANY AND ALL CLAIMS CUSTOMER MAY
HAVE AGAINST DEALER, EXCEPT FOR CLAIMS
FOR BREACH OF CONTRACT UNDER THE NEW
JERSEY UNIFORM COMMERCIAL CODE, BUT
INCLUDING CLAIMS UNDER THE NEW JERSEY
CONSUMER FRAUD ACT WITHIN 180 DAYS
FROM THE DATE OF THIS AGREEMENT. IF
CLAIMS ARE NOT BROUGHT WITHIN 180 DAYS
THE CLAIMS WILL BE TIME BARRED. ALL
CLAIMS UNDER THE NEW JERSEY CODE FOR
BREACH OF CONTRACT MUST BE BROUGHT
WITHIN ONE YEAR AFTER THE CAUSE OF
ACTION ACCRUES.

Then, in larger font, and above a place for Robinson’s signature, the

agreement states: “READ THIS ARBITRATION AGREEMENT

CAREFULLY. IT LIMITS CERTAIN OF YOUR RIGHTS, INCLUDING

YOUR RIGHT TO MAINTAIN A COURT ACTION.” Under Robinson’s

signature, the agreement states: “You acknowledge that you have received a

completed copy of this agreement.” Robinson initialed next to the

acknowledgement.

Robinson signed one more time at the bottom of the agreement, beneath

the following statement:
9
 I, AS THE UNDERSIGNED, HEREBY
ACKNOWLEDGE THAT THE ATTACHED
CONDITIONAL SALES OR LEASE CONTRACTS
WERE FULLY COMPLETED AND EXPLAINED TO
ME PRIOR TO MY AFFIXING MY SIGNATURE ON
THE CONTRACT. I IMMEDIATELY RECEIVED A
COPY OF THE CONTRACTS ALONG WITH THIS
ARBITRATION AGREEMENT, AND
ACKNOWLEDGE THAT I FULLY UNDERSTAND
THE CONTENTS THEREIN.

A third document Robinson signed is a “Spot Delivery Agreement.” 3 It

identifies the 2016 Chevrolet Malibu as the vehicle purchased. Robinson

signed the document; the line for a second “customer” is blank.

The spot delivery agreement states, in relevant part:

It is my understanding and agreement that I am taking
possession and delivery of the above described vehicle
prior to financing being finalized. I understand that the
Dealership is not financing this transaction. I further
understand that financing for the purchase of the
vehicle has not been finalized and is subject to approval
by an outside financing source. This is known as “Spot
Delivery”. I understand that this Spot Delivery
Agreement is for the purpose of allowing me to take
possession of the vehicle, subject to the following terms
and conditions, until a final decision regarding my
request for financing is made.

....

2. I fully understand that, should the Dealership be
unable to obtain an approval from an outside financing

3
The spot delivery agreement was not presented to the trial court. It became
part of the record on appeal after the Appellate Division granted Mall
Chevrolet’s motion to supplement the record.
10
 source . . . I will be required to obtain financing myself
or surrender the vehicle to the Dealership at the
Dealership’s option. . . .

....

By signing below, I acknowledge that I have been given
the opportunity to read this Spot Delivery Agreement
and fully understand and agree to be bound by the terms
and conditions set forth herein. This Spot Delivery
Agreement is hereby incorporated by reference into any
other purchase documents which I may execute.

After signing the above documents, Robinson charged the $1000 deposit

to her debit card and handed over the keys to her Chevrolet Cruze. Before

driving home in the Malibu, Robinson was advised that she would have to

return to the dealership with Johnson on the following Monday to finish

signing the documents.

Robinson returned with Johnson to the dealership on Monday and

declared that she no longer wanted the Malibu because it was too expensive.

Mall Chevrolet’s representatives told her that she could not return the Malibu,

that the representation about being able to rescind the deal within two days

was a mistake, and that she was bound by the documents she signed. Robinson

alleges that the representatives attempted in various ways to “coerce” her into

signing the purchase documents even though she demanded her $1000 deposit

back. That said, Robinson was able to leave with her former car after Mall

11
Chevrolet eventually relented, returned the Chevrolet Cruze to her, and

promised a return of her deposit. 4

In this action, Robinson alleges that Mall Chevrolet did not give her a

copy of any documents that she signed during the transaction. She further

alleges that no one from the dealership had signed the MVRO or arbitration

agreement when she saw the documents on Monday, November 7, and that

they “had to be signed after we left the dealership on Monday.”

Mall Chevrolet’s finance manager submitted to the trial court a

certification in which he asserts that he explained the MVRO and arbitration

agreement to Robinson before she signed and that she acknowledged that she

understood their terms. He does not assert that he gave Robinson a copy of the

documents that she signed.

2.

On October 7, 2016, plaintiff Janell Goffe went to Cherry Hill

Mitsubishi in response to an Internet advertisement for a Buick listed for

4
According to Robinson, after she and Johnson called an attorney and
threatened to call the police, Mall Chevrolet’s employees backed off their
initial positions. They inspected the Malibu before agreeing to return the
Chevrolet Cruze and deposit. Mall Chevrolet continued to contact Robinson
thereafter seeking to persuade her to buy a car from them. At some point, the
dealership told Robinson that she had damaged the Malibu and that it would
retain a portion of her deposit. Robinson did not receive the return of any
deposit monies until shortly after she filed her complaint in Superior Court.

12
$15,800. A sales representative, Antonio Salisbury, worked with her on the

deal. Essentially, Goffe was told that she could obtain the car that day if she

traded in her 2006 Infiniti, paid $250 that day, and then $750 on October 21.

She was told that financing on the Buick was approved through Global

Lending Services and that the monthly loan payments would be $390. In

going forward with the purchase, she was told to cancel her insurance on her

Infiniti and that automobile insurance on the Buick would be made available

through the dealership.

Goffe did go ahead that day with the proposed deal. She paid $250,

cancelled the insurance on her trade-in, and purchased insurance for the Buick

through the dealership. The dealership provided temporary registration on the

vehicle and Goffe drove the Buick off the lot.

To proceed with the transaction, Goffe signed several documents --

including an arbitration agreement -- identical in form to those that Robinson

signed. Goffe signed the documents in the same places as Robinson, signaling

that she read, understood, and received copies of the documents. And, like

Robinson, Goffe asserts that she was not given copies of any documents that

she signed.

In a certification submitted in the present action, Goffe contends that she

“did not know what arbitration was and did not agree to arbitrate or allow an

13
arbitrator to decide any disputes including the validity and enforcement of the

arbitration agreement.” She also states that no one ever explained the content

of the documents to her and that Salisbury held the documents as she signed

them and did not give them to her to read. 5

When Goffe returned to the dealership two weeks later with the

remainder of the down payment, Salisbury informed her that financing had not

been approved, contrary to what he originally told her, and that she could

retain the Buick only if she agreed to a larger down payment and higher

monthly payments. Goffe refused and cancelled the deal. The dealership

returned the traded-in vehicle but did not immediately return Goffe’s initial

$250 down payment. The down payment was returned after she commenced

this lawsuit.

B.

Robinson and Goffe filed substantially similar six-count complaints.

Each alleges statutory violations of the New Jersey Consumer Fraud Act

(CFA), N.J.S.A. 56:8-1 to -210; the Truth in Consumer Contract Warranty and

Notice Act, N.J.S.A. 56:12-14 to -18; the Plain Language Act, N.J.S.A. 56:12-

5
In her certification, Goffe also disputes that she signed the Spot Delivery
Agreement, claiming that it is not her signature on the document. She further
claims that any signature of hers that does appear on any form was obtained
only through “trickery and misrepresentation.”
14
1 to -13; the Truth in Lending Act, 15 U.S.C. §§ 1601 to 1667f, as well as

common law fraud. Plaintiffs, who are represented by the same counsel, claim

that Mall Chevrolet and Cherry Hill Mitsubishi respectively engaged in

deceptive and unconscionable practices, including misrepresentations and

concealment in the buying process. Robinson’s complaint includes her

mother, Johnson, as a co-plaintiff.

Defendants moved to dismiss the claims in each case and to compel

arbitration based on the arbitration agreements. The trial courts granted the

motions and compelled arbitration.

The Robinson trial court determined that the language of the forms that

Robinson signed was unambiguous and the parties therefore entered into a

binding contract. The court concluded that, based on the signed arbitration

agreement and the “strong presumption in favor of arbitration,” all of

Robinson’s claims must be resolved in arbitration.6

The Goffe trial court similarly concluded that enforcing the arbitration

agreement was appropriate. Further, Goffe’s claim that “she was not given an

6
Mall Chevrolet filed a motion to dismiss Johnson’s claims for failure to state
a claim at the same time that it moved to compel Robinson to arbitrate her
claims. Mall Chevrolet argued that Johnson failed to state a claim because she
did not have standing as she did not sign the documents or pay a deposit. The
trial court did not address whether Johnson had standing, resolving the matter
purely on the basis of the arbitration issue.
15
opportunity to read the arbitration agreement or was not given a copy of the

arbitration agreement or didn’t understand the arbitration agreement” was held

to be “legally insufficient” to avoid arbitration.

Goffe filed a cross-motion for limited discovery. Relying on Guidotti v.

Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764 (3d Cir. 2013), she

argued that motions to compel arbitration should be “viewed as a summary

judgment motion and the non-movant must be given an opportunity to conduct

limited discovery on the narrow issue concerning the validity of the arbitration

agreement.” She argued that she was entitled to “all pertinent documents

surrounding the transaction” “that could support [her] allegations of fraud.”

The trial court rejected her reasoning and denied the motion.

C.

Plaintiffs appealed and the Appellate Division consolidated the cases.7

In a published opinion, the panel reversed the orders that granted defendants’

7
Mall Chevrolet cross-appealed arguing, as it did before the trial court, that
Johnson has no cognizable CFA claim because she has no standing to sue.
Addressing the merits of Johnson’s CFA claim, the panel determined that
Johnson alleged an ascertainable loss sufficient to survive a motion to dismiss,
and so she has standing to bring her CFA claims. Goffe v. Foulke Mgmt.
Corp., 454 N.J. Super. 260, 282-83 (App. Div. 2018). The panel also held that
she could not be compelled to arbitrate her claims because she did not sign the
contract. Id. at 281. We do not address whether Johnson should be compelled
to arbitrate her claims -- CFA or otherwise -- because the issue is not raised in
Mall Chevrolet’s petition for certification and because, at oral argument, Mall
16
motions to compel arbitration. Goffe v. Foulke Mgmt. Corp., 454 N.J. Super.

260 (App. Div. 2018). The panel’s decision contains a number of conclusions,

which are set forth below.

First, the panel determined that “[s]tanding alone . . . the particular

arbitration provisions included within the parties’ sales contracts are capable

of being enforced,” because of the “clear and conspicuous expression of . . .

intent” to arbitrate all claims and to waive the parties’ rights to jury trials. Id.

at 271. Nonetheless, the panel determined that “[t]he circumstances

surrounding the execution of the documents in question raise[d] legitimate

questions about the enforceability of defendants’ otherwise acceptable

arbitration provisions.” Id. at 272.

Next, the panel addressed the procedure that should be followed in order

to resolve whether the arbitration provision should be enforced. The panel was

persuaded that the Third Circuit’s decision in Guidotti established the proper

approach to resolving disputes over contract enforceability, which must

precede an order compelling arbitration. Id. at 272-73. Relying on Guidotti

and applying a summary judgment review standard, the Appellate Division

held that the trial court should have conducted an evidentiary hearing to

Chevrolet asserted that it does not challenge the Appellate Division’s holding
that Johnson can bring her claims in court.
17
resolve, as a threshold matter, genuine and material disputes over “whether the

parties entered into an enforceable contract.” Id. at 273-74.

The panel identified several issues that, it believed, required evidential

development. As one example, it cited the disagreement over whether

Robinson’s deal was dependent on Johnson’s participation as a co-signer. Id.

at 273.

The panel also concluded that there was a genuine issue, in both cases,

regarding the import of compliance with N.J.S.A. 56:8-2.22 of the CFA, which

requires a seller to provide a consumer with a copy of the executed contract

when consummating a consumer agreement. The panel acknowledged that no

reported decision in our State has considered “the effect of a violation of

N.J.S.A. 56:8-2.22” on the enforceability of a consumer agreement; however,

the panel determined that the trial court should have conducted a hearing to

resolve the issue because Robinson and Goffe both alleged that “they were not

given copies of the[ir] documents.” Id. at 274-75. In so concluding, the

Appellate Division disagreed that an arbitrator should decide the CFA issue,

even though the arbitration provision specifically identifies CFA claims as

being subject to arbitration. Id. at 275. The panel reasoned that whether the

dealerships gave copies of the documents to plaintiffs in compliance with

18
N.J.S.A. 56:8-2.22 “is a question of disputed fact” that must be settled before

arbitration can be compelled. Ibid.

The panel also determined there was a genuine issue of fact, in both

cases, regarding whether cancellation of the purchase agreement and

subsequent return of deposit monies resulted in rescission of the arbitration

agreement. Ibid. The panel reasoned that issues related to the parties’

decision to cancel the sales contract cannot be addressed through arbitration

because, if there was a rescission of the purchase agreement, then the

arbitration provision was rescinded as well. Id. at 276.

Last, the panel addressed the broad arbitrability provisions in the

arbitration agreement. The court acknowledged that parties can agree to

arbitrate arbitrability issues under the holding in Rent-A-Center. Id. at 278.

But, in this matter, the panel determined that there were more fundamental

questions about whether the parties entered into binding contracts, which

required resolution before the arbitrability provision could have effect. Id. at

277-78.

Due to the multiple issues it viewed as requiring resolution, the

Appellate Division directed the respective trial courts, on remand, to

implement the Guidotti approach and to “permit limited discovery and, if

necessary, evidentiary hearings.” Id. at 279.

19
 We granted defendants’ petitions for certification. 235 N.J. 202 (2018);

235 N.J. 200 (2018). We also granted amicus curiae status to the New Jers ey

Coalition of Automotive Retailers (NJCAR), supportive of defendants, and to

the New Jersey Association for Justice, the Consumers League of New Jersey

and the National Association of Consumer Advocates, who are generally

supportive of plaintiffs. NAACP Camden County East appeared as amicus

curiae before the Appellate Division and relied on its appellate brief before

this Court. Its arguments are supportive of plaintiffs’ efforts to avoid

compelled arbitration in settings where fraud in the inducement of a contract is

involved.

II.

The central issue in this case is whether plaintiffs should be compelled

to address their claims before an arbitrator.

Before this Court, plaintiffs and the amici who support them continue to

focus on the reasons they believe their overall sales agreement is invalid --

either in its formation or because it was effectively rescinded through the

contract’s cancellation. As they did before the Appellate Division, they argue

that the arbitration agreement, which is a part of the overall invalid sales

agreement between the parties, may not be enforced.

20
 Defendants argue that the panel misread Guidotti and, consequently,

expanded its holding. Defendants factually distinguish Guidotti and contend

that it does not apply when the challenge at issue is not specifically to the

arbitration provision. They argue that “the question of the enforceability of

this Arbitration Agreement is a question for the arbitrator to decide and not the

Court.” NJCAR, in support of defendants, adds clarification about the nature

of spot delivery agreements which, it contends, undermines the rescission issue

raised by the Appellate Division and remanded for factual development .8

III.

A.

We apply a de novo standard of review when determining the

enforceability of contracts, including arbitration agreements. Hirsch v. Amper

8
Specifically, NJCAR says the Appellate Division erred when it held that the
arbitration agreements may have been rescinded when plaintiffs failed to
achieve financing. It claims that the panel demonstrated a misunderstanding of
the character of “spot-delivery vehicle transactions,” which allow a consumer
to take possession of a vehicle prior to the finalization of financing terms but
forces the consumer to relinquish the vehicle if financing falls through.
NJCAR argues that it is illogical to characterize spot delivery agreements as
“rescinded” when vehicles are returned because that flawed reasoning could
apply “any time parties have fully performed their obligations under a contract
that explicitly requires the return of another’s property if a certain condition is
met during performance.” It adds that the return of a vehicle, as contractually
obligated, “is . . . an acknowledgement that the [person] remain[s] bound,” not
a rescission.

21
Fin. Servs., LLC, 215 N.J. 174, 186 (2013). The enforceability of arbitration

provisions is a question of law; therefore, it is one to which we need not give

deference to the analysis by the trial court or Appellate Division. Morgan v.

Sanford Brown Inst., 225 N.J. 289, 303 (2016) (citing Atalese v. U.S. Legal

Servs. Grp., L.P., 219 N.J. 430, 445-46 (2014)).

B.

In applying the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 to 16, the

United States Supreme Court has provided substantial guidance on the

question of whether arbitration should be compelled in situations such as we

address in this case.

The FAA constitutes the supreme law of the land regarding arbitration.

Southland Corp. v. Keating, 465 U.S. 1, 10 (1984) (“In enacting [section two

of the FAA], Congress declared a national policy favoring arbitration and

withdrew the power of the states to require a judicial forum for the resolution

of claims which the contracting parties agreed to resolve by arbitration.”).

Reflecting the “fundamental principle that arbitration is a matter of contract,”

Rent-A-Center, 561 U.S. at 67, section two of the FAA provides:

A written provision in . . . a contract evidencing a
transaction involving commerce to settle by arbitration
a controversy thereafter arising out of such contract . . .
shall be valid, irrevocable, and enforceable, save upon
such grounds as exist at law or in equity for the
revocation of any contract.
22
 [9 U.S.C. § 2.]

Thus, Congress intended “to place arbitration agreements upon the same

footing as other contracts.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.

20, 24 (1991). It is the FAA’s “principal purpose” to “‘ensur[e] that private

arbitration agreements are enforced according to their terms.’” AT&T

Mobility LLC v. Concepcion, 563 U.S. 333, 344 (2011) (alteration in original)

(quoting Volt Info. Scis., Inc. v. Bd. of Trs., 489 U.S. 468, 478 (1989)). To

make that so, the FAA provides remedies. First, section three provides that a

party may request a stay of an in-court action of “any issue referable to

arbitration under an agreement in writing for such arbitration.” 9 U.S.C. § 3.

And, section four provides a federal remedy for a party “aggrieved by the

alleged failure, neglect, or refusal of another to arbitrate under a written

agreement for arbitration,” and directs the federal court to order arbitration

once it is satisfied that an agreement for arbitration has been made and has not

been honored. 9 U.S.C. § 4.

New Jersey case law acknowledges the preeminence of the national

policy established by Congress through the FAA as well as the Supreme

Court’s holdings interpreting and implementing that policy. See, e.g., Morgan,

225 N.J. at 304-06; Martindale v. Sandvik, Inc., 173 N.J. 76, 84-85 (2002).

23
Hence, in this matter, as in others, we look to the Supreme Court’s decisions to

guide us in the enforcement of arbitration agreements according to their terms.

Importantly, with respect to the type of situation that has arisen in this

matter, the Supreme Court has provided guidance. We turn to that case law as

our starting point.

C.

The United States Supreme Court has held that when a plaintiff raises a

claim of fraud in the inducement of a contract as a whole -- rather than fraud in

the making of the arbitration agreement itself -- the FAA requires that the

dispute be resolved by the arbitrator. Prima Paint, 388 U.S. at 403-04.

In Prima Paint, the plaintiff brought suit alleging that the defendant “had

fraudulently represented that it was solvent and able to perform its contractual

obligations, whereas it was in fact insolvent and intended to file a [bankruptcy]

petition.” Id. at 398. The defendant moved to compel arbitration based on the

arbitration provision in the contract between the parties. Ibid.

The Court framed the central issue in the case as “whether a claim of

fraud in the inducement of the entire contract is to be resolved by the federal

court, or whether the matter is to be referred to the arbitrators.” Id. at 402.

The Court held that

if the claim is fraud in the inducement of the arbitration
clause itself -- an issue which goes to the “making” of
24
 the agreement to arbitrate -- the federal court may
proceed to adjudicate it. But the statutory language
does not permit the federal court to consider claims of
fraud in the inducement of the contract generally.

[Id. at 403-04 (footnote omitted).]

The Court reasoned that “it is inconceivable that Congress intended the

rule [in section four of the FAA] to differ depending upon which party to the

arbitration agreement first invokes the assistance of a federal court.” Id. at

404. The Court’s determination recognized that arbitration agreements are

severable from the rest of the contract and that the arbitration agreement may

be valid separate and apart from the contract as a whole, provided that a party

has not challenged the arbitration agreement itself. Id. at 403-04.

The Court reaffirmed the Prima Paint rule more recently in Buckeye, 546

U.S. 440, as well as in Rent-A-Center, 561 U.S. at 70 (“[A] party’s challenge

to another provision of the contract, or to the contract as a whole, does not

prevent a court from enforcing a specific agreement to arbitrate.”).

In Buckeye, the plaintiffs signed contracts that contained arbitration

agreements. 546 U.S. at 442. They thereafter brought a putative class action

in state court “alleging that Buckeye charged usurious interest rates and that

the Agreement violated various Florida lending and consumer-protection laws,

rendering it criminal on its face.” Id. at 443. Relying in large part on Prima

Paint, the Court determined that “as a matter of substantive federal arbitration
25
law, an arbitration provision is severable from the remainder of the contract,”

and that “unless the challenge is to the arbitration clause itself, the issue of the

contract’s validity is considered by the arbitrator in the first instance.” Id. at

445-46. The Court therefore concluded that “because respondents challenge

the Agreement, but not specifically its arbitration provisions, those provisions

are enforceable apart from the remainder of the contract. The challenge should

therefore be considered by an arbitrator, not a court.” Id. at 446.

The Buckeye decision was based on the premise that a challenge to the

validity of the arbitration agreement is different from a challenge to “the

contract as a whole, either on a ground that directly affects the entire

agreement (e.g., the agreement was fraudulently induced), or on the ground

that the illegality of one of the contract’s provisions renders the whole contract

invalid.” Id. at 444. In the former scenario, the challenge is to the actual

formation of the arbitration agreement; in the latter scenarios, the challenge is

to the validity of the contract as a whole. Ibid.

Similarly, in Rent-A-Center, the Court held as valid a provision in a

contract that delegated to the arbitrator the question of arbitrability under

circumstances in which the plaintiff challenged only the validity of the

contract as a whole, rather than mounting a challenge to the validity of the

delegation provision specifically. 561 U.S. at 72. In Rent-A-Center, the Court

26
reaffirmed an earlier holding in First Options of Chicago, Inc. v. Kaplan9 to the

same effect and added that a party opposing a motion to compel arbitration on

an arbitrability issue must specifically challenge the delegation clause itself

rather than assert a general challenge to the validity of the contract as a whole .

Ibid. Relying on Prima Paint and Buckeye, the Court explained that section

two of the FAA “states that a ‘written provision’ ‘to settle by arbitration a

controversy’ is ‘valid, irrevocable, and enforceable’ without mention of the

validity of the contract in which it is contained.” Id. at 70. Thus, it follows

that the arbitration agreement may be valid even if the underlying contract is

not. Ibid. As a result, because the plaintiff in that case challenged only the

validity of the contract as a whole, the delegation of authority to the arbitrator

to resolve disputes relating to the enforceability of the agreement was valid.

Id. at 72-73.

Our Court has acknowledged the legitimacy and applicability of the

Rent-A-Center holding to delegation provisions in New Jersey arbitration

agreements. See Morgan, 225 N.J. at 303. And, Rent-A-Center’s well-

understood import is firmly part of the federal precedent implementing the

FAA at this time. Just this year, in Henry Schein, Inc. v. Archer & White

9
In First Options, the Supreme Court held that determining who has the
power to decide arbitrability -- the arbitrator or the court -- turns on whether
the parties agreed to arbitrate that matter. 514 U.S. 938, 943 (1995).
27
Sales, Inc., 568 U.S. ___, 139 S. Ct. 524 (2019), the Supreme Court reaffirmed

the Rent-A-Center holding, adding that when the parties’ contract delegates

the question of the arbitrability of a particular dispute to an arbitrator, a court

may not override the contract, even if the court thinks that the argument that

the arbitration agreement applies to a dispute is “wholly groundless.” Id. at

___, 139 S. Ct. at 528-29.

IV.

A.

Based on that line of cases, we have no doubt that the arbitration

agreements in plaintiffs’ contracts -- acknowledged by the Appellate Division

to be clear and conspicuous -- are entitled to enforcement.

Plaintiffs do not dispute the validity of the arbitration agreement itself

nor do they dispute the delegation provision within it that delegates the

question of arbitrability to the arbitrator. They have not attacked the language

or clarity of the arbitration agreement or its delegation clause. Rather, they

have continuously maintained that the contract was the product of fraudulent

inducement and that the arbitration agreement -- within that sales contract -- is

thus also invalid.

Plaintiffs seek to distinguish their claims by emphasizing their position

that there was no mutual assent to arbitrate their claims because the arbitration

28
agreements they signed were “the product of fraud and trickery . . . and were

not voluntarily and knowingly agreed to.” However, the disputed facts that

plaintiffs allege go to whether the dealerships performed a bait-and-switch

related to enticing plaintiffs to enter into the contract as a whole. Specifically,

Goffe claims that the dealership lied about the fact that she had been approved

for financing in order to get her to agree to the deal and sign the contracts .

Robinson argues that the dealership represented to her that the contracts would

not be enforceable until Johnson co-signed them. They have not raised a

specific claim attacking the formation of the arbitration agreement that each

signed.

Moreover, the argument that either plaintiff did not understand the

import of the arbitration agreement and did not have it explained to her by the

dealership is simply inadequate to avoid enforcement of these clear and

conspicuous arbitration agreements that each signed. Borough of West

Caldwell v. Borough of Caldwell, 26 N.J. 9, 24-25 (1958) (stating the basic

principle that an enforceable contract exists where a written agreement is

“sufficiently definite in its terms that the performance to be rendered by each

party can be ascertained with reasonable certainty”).

Federal precedent instructs that the arbitration agreements here be

severed from the rest of the agreement, whose totality Goffe and Robinson

29
contest on a number of grounds. Goffe and Robinson must arbitrate their

claims as to the enforceability of the overall sales contract. As a result, their

various statutory and common law claims, including their CFA claims, which

allege that defendants failed to give plaintiffs copies of the contracts they

signed, in violation of N.J.S.A. 56:8-2.22, should be decided by the

arbitrator.10 Under these circumstances, we do not opine on the merits of any

of these claims, including the question of remedy for any alleged violation of

N.J.S.A. 56:8-2.22. In the same vein, plaintiffs’ claims that they rescinded

their contracts is also a question for the arbitrator. To the extent that plaintiffs

seek to argue that the cancellation of their purchases is the factual and legal

equivalent of a rescission, that argument still goes to the enforceability of t he

sales agreement as a whole. Again, it is not a specific challenge to the

10
We note that the agreements in this case limit the time period for purchasers
to assert claims under the CFA: “If such claims are not brought within 180
days the claims will be time barred.” The Appellate Division raised concerns
about the same clause in NAACP of Camden County East v. Foulke Mgmt.
Corp., 421 N.J. Super. 404, 432 (App. Div. 2011), and pointed out that the
provision “is at odds with the six-year statute of limitations generally
applicable to CFA claims arising out of sale of merchandise,” ibid. (citing
N.J.S.A. 2A:14-1); see also Rodriguez v. Raymours Furniture Co., Inc., 225
N.J. 343, 347 (2016) (finding that a private agreement to shorten the Law
Against Discrimination’s two-year limitations period to six months
undermined and thwarted the legislative scheme and was therefore
unenforceable). Because the issue was not directly raised in this appeal, we do
not address it further at this time.
30
arbitration agreement that avoids enforcement of the severed arbitration

agreement.

B.

Importantly, the Third Circuit Court of Appeals decision in Guidotti,

relied upon by the Appellate Division, was misapplied here. In that case, the

Third Circuit determined that different standards of review should apply to a

motion to compel arbitration depending on whether or not it is apparent that

there was an agreement to arbitrate between the parties. Guidotti, 716 F.3d at

776. Specifically, the Third Circuit held that if “based on ‘the face of the

complaint, and documents relied upon in the complaint’” it is apparent that the

parties’ claims are subject to an enforceable arbitration agreement, the motion

to compel arbitration should be considered under a Fed. R. Civ. P. 12(b)(6)

motion to dismiss standard. Ibid. (quoting Somerset Consulting, LLC v.

United Capital Lenders, LLC, 832 F. Supp. 2d 474, 482 (E.D. Pa. 2011)). On

the other hand,

if the complaint and its supporting documents are
unclear regarding the agreement to arbitrate, or if the
plaintiff has responded to a motion to compel
arbitration with additional facts sufficient to place the
agreement to arbitrate in issue, then “the parties should
be entitled to discovery [under Rule 56] on the question
of arbitrability before a court entertains further briefing
on [the] question.”

31
 [Ibid. (second alteration in original) (quoting Somerset
Consulting, 832 F. Supp. 2d at 482).]

In Guidotti, the dispositive issue was whether an account agreement

document, which included an arbitration clause, was included in the initial

package of documents emailed to the plaintiff. Id. at 769. The Third Circuit

determined that there was a genuine issue of material fact regarding whether

the parties agreed to arbitrate because the plaintiff disputed that she actually

received the emailed document containing the arbitration agreement. Id. at

780. For that reason, the court analyzed the case under the summary judgment

standard and remanded to the District Court for limited discovery on the

specific challenge to the mutuality of assent to the arbitration agreement before

it would determine whether her underlying dispute was arbitrable. Ibid.

While the plaintiff in Guidotti disputed the validity of the arbitration

agreement itself, 11 plaintiffs here make general assertions that their contracts

were unenforceable. Unlike the Guidotti plaintiff, they do not claim not to

have seen the arbitration agreement, for their signatures are on the written

documents. They do not dispute the validity of the arbitration agreement or its

11
The plaintiff’s factual claim focused on the arbitration agreement, which
she asserted she never saw. Id. at 769. She claimed not to have received the
document that allegedly was emailed to her and could therefore not have
agreed to it. Ibid.

32
delegation clause other than to say that it is invalid as a result of the invalidity

of the contract as a whole. In fact, the Appellate Division held that if it were

not for the issues regarding the enforceability of the contract itself, the

arbitration agreements would be enforceable as the agreements met New

Jersey standards for evidencing “clear and conspicuous expression[s] of [the]

intent” of the parties to arbitrate. Goffe, 454 N.J. Super. at 271.

In our view, the Appellate Division misapprehended and consequently

misapplied Guidotti.

We reviewed all published decisions that cite Guidotti. Of the cases that

concern arbitration disputes,12 no case has ever used the Guidotti standard in

the way the Appellate Division did here. Specifically, no case applied the

Guidotti summary judgment standard to delay or avoid enforcement of an

arbitration agreement when a plaintiff challenged a motion to compel

arbitration on grounds that the contract as a whole was invalid. 13

12
We note that many of the cases cite Guidotti only as a reference for a
motion to dismiss or a summary judgment standard of review and do not even
deal with arbitration agreements. See, e.g., Keyes v. Sessions, 282 F. Supp. 3d
858, 865 (M.D. Pa. 2017) (citing Guidotti for the summary judgment standard
of review in a case involving a Second Amendment challenge).
13
Indeed, in Somerset Consulting -- a case cited and used by the Guidotti
court in reaching its own determination, 716 F.3d at 772 n.4 -- the Eastern
District of Pennsylvania relied upon Prima Paint and Buckeye, addressing the
plaintiffs’ substantive challenge to the arbitration provision at issue only after
determining that the challenge was to the arbitration provision, rather than the
33
 In fact, in only one case that cites Guidotti -- Allstate Insurance Co. v.

Toll Brothers, Inc., 171 F. Supp. 3d 417 (E.D. Pa. 2016) -- did a plaintiff

challenge a motion to compel arbitration by arguing that the contract as a

whole was invalid. In that case, the defendants moved to compel arbitration.

Id. at 421. Allstate, the plaintiff, opposed the motion, arguing in part that the

parties never formed an agreement to arbitrate because the buyers did not

receive any consideration for entering into the Agreement of Sale. Id. at 422.

Relying on Buckeye and Prima Paint, the Eastern District of Pennsylvania

rejected the contention, reasoning that the argument that there was no

consideration called the entire agreement into question, not specifically the

arbitration clause within it. Id. at 422-23. The District Court concluded this

part of its analysis by citing Guidotti for the proposition that because the

plaintiff failed to show that the arbitration clause was unconscionable,

discovery on the question of arbitrability was unnecessary. Id. at 434 n.25.

Accordingly, the District Court stayed the action pending arbitration. Id. at

436.

contract as a whole. 832 F. Supp. 2d at 486-87. The Guidotti court’s reliance
on Somerset Consulting supports that the Third Circuit did not intend for its
holding in Guidotti to apply where there is a challenge to the contract as
whole, like in plaintiffs’ case here.
34
 We do not suggest that there is not a place for Guidotti in our arbitration

jurisprudence. The decision is in line with federal case law that allows a court

to decide matters that relate directly to the formation of the arbitration

agreement. However, because plaintiffs here challenge the contract as a whole

rather than the arbitration agreement itself, we hold that the Guidotti summary

judgment standard does not apply in this instance. Rather, based on the

complaint and the certifications provided to the trial court, it is apparent to us

that the parties’ claims are subject to an enforceable arbitration agreement.

Therefore, the arbitration agreement is severable and enforceable. Plaintiffs

must arbitrate their claims. Before the arbitrator, plaintiffs can raise any

arbitrability issues consistent with the delegation clauses in these agreements.

V.

The judgment of the Appellate Division is reversed. We reinstate the

orders compelling plaintiffs to arbitrate the merits of their claims.

CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE
LaVECCHIA’s opinion.

35