MILAGROS ROMAN VS. BERGEN LOGISTICS, LLC (L-2652-17, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5388-16T3

MILAGROS ROMAN,

Plaintiff-Appellant,
APPROVED FOR PUBLICATION
v.
September 24, 2018

BERGEN LOGISTICS, LLC and APPELLATE DIVISION
GREGG OLIVER,

Defendants-Respondents.
______________________________

Argued February 5, 2018 – Decided August 23, 2018

Before Judges Accurso, O'Connor and Vernoia.

On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-2652-17.

Peter D. Valenzano argued the cause for appellant
(Mashel Law, LLC, attorneys; Stephan T. Mashel, of
counsel and on the briefs; Peter D. Valenzano, on the
briefs).

Jessica L. Sussman argued the cause for respondent
Bergen Logistics, LLC (Jackson Lewis PC, attorneys;
Richard J. Cino, of counsel; Jessica L. Sussman, on
the brief).

Kyle L. Wu argued the cause for respondent Gregg
Oliver (Margolis Edelstein, attorneys; Michael R.
Miller and Kyle L. Wu, of counsel and on the brief).
 Thaddeus P. Mikulski, Jr., attorney for amicus curiae
National Employment Lawyers Association of New
Jersey, Inc. (Thaddeus P. Mikulski, Jr. and Richard M.
Schall, on the brief).

The opinion of the court was delivered by

VERNOIA, J.A.D.

Plaintiff Milagros Roman appeals from an order dismissing her sexual

harassment and retaliation complaint against defendants Bergen Logistics,

LLC and Gregg Oliver. Because we are convinced the court correctly

determined the complaint should be dismissed because plaintiff agreed to

arbitrate her claims, we affirm but modify the court's order to permit plaintiff

to pursue her punitive damages claims in arbitration.

I.

In September 2015, Bergen Logistics hired plaintiff as a human

resources generalist. Oliver was Bergen Logistics's Human Resources

Director and plaintiff's immediate supervisor. He terminated plaintiff's

employment on December 30, 2015.

In an April 2017 Law Division complaint, plaintiff alleged Oliver

sexually harassed her and created a sexually hostile work environment during

her employment. She also alleged that after she objected to his conduct and

sexual advances, he retaliated against her and terminated her employment. She

asserted causes of action against Bergen Logistics and Oliver under the New

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Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and for

intentional infliction of emotional distress.

Defendants moved to dismiss the complaint, asserting plaintiff was

obligated to arbitrate her claims pursuant to the arbitration agreement she

signed when hired in September 2015. In support of their motion, defendants

relied on the agreement, which refers to plaintiff as "you" and Bergen

Logistics as the "Company, and provides in pertinent part that "[a]s an express

condition of" plaintiff's "hiring" and "continu[ed]" employment by Bergen

Logistics she agreed:

(i) all (past, present and future) disputes, controversies
and claims of any nature (whether under federal, state
or local laws and whether based on contract, tort,
common law, statute . . .) arising out of, involving,
affecting or related in any way to your . . .
employment . . . and/or termination of employment by
or from Company, the conditions of your employment,
or any act or omission of Company or Company's
other employees shall be resolved exclusively by final
and binding arbitration before the American
Arbitration Association . . . . This Agreement covers
all employment matters, including but not limited to
matters directly or indirectly related to wrongful
termination, . . . discrimination, harassment,
retaliation (in the whistle blower or any other context),
. . . and any other violation of state, federal or
common law . . . .

....

(iii) neither you nor Company shall file or maintain
any lawsuit, action or legal proceeding of any nature

A-5388-16T3
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 with respect to any dispute, controversy or claim
within the scope of this Agreement, including, but not
limited to, any lawsuit, action or legal proceeding
challenging the arbitrability of any such dispute . . . .
BY SIGNING THIS AGREEMENT YOU AND
COMPANY ARE WAIVING ANY RIGHT,
STATUTORY OR OTHERWISE, TO A TRIAL BY
JURY AND TO PUNITIVE AND EXEMPLARY
DAMAGES . . . .

....

YOU ACKNOWLEDGE AND AGREE THAT
YOU . . . READ THIS AGREEMENT AND . . . HAD
SUFFICIENT TIME TO STUDY AND CONSIDER
IT AND TO CONSULT WITH COUNSEL OF YOUR
CHOICE, THAT YOU UNDERSTAND ALL OF ITS
TERMS AND ARE SIGNING THIS AGREEMENT
KNOWINGLY AND VOLUNTARILY, AND THAT
IN DOING SO YOUR ARE NOT RELYING UPON
ANY OTHER STATEMENTS OR
REPRESENTATIONS BY THE COMPANY, ITS
AFFILIATE OR THEIR EMPLOYEES OR
AGENTS . . . .

Plaintiff opposed the motion, arguing the agreement was unenforceable

as against public policy because it barred her recovery of punitive damages

otherwise available under the LAD. See N.J.S.A. 10:5-3 (providing for the

recovery of punitive damages for LAD claims). Plaintiff also asserted the

agreement was unenforceable because she was unable to read it when it was

presented, it was not written in plain language and she did not read it before

signing it.

A-5388-16T3
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 After hearing argument, the court issued a written opinion finding

plaintiff knowingly signed the agreement, and that it contained an

unambiguous waiver of claims for "punitive and exemplary damages." 1 The

court found plaintiff's hiring and continued employment provided

consideration for the agreement, which covered the claims asserted in the

complaint, was binding and required submission of her claims to arbitration.

The court entered an order dismissing the complaint. This appeal followed.

II.

Plaintiff first contends the court erred by dismissing the complaint

because the arbitration agreement's punitive damages waiver violates the

public policy underlying the LAD, thereby rendering the agreement

unenforceable.2 Bergen Logistics and Oliver contend punitive damages

waivers do not violate public policy and therefore there is no basis to void

plaintiff's obligation to arbitrate her claims under the agreement's plain

language.

1
We note that although the arbitration agreement refers to "punitive and
exemplary damages," the two are one and the same. See Fischer v. Johns-
Manville Corp., 103 N.J. 643, 654 (1986) (referring to punitive damages and
exemplary damages interchangeably); Restatement (Second) of Torts § 908(1)
(Am. Law Inst. 1979) (noting that punitive damages are frequently called
"exemplary" damages).
2
Amicus curiae, National Employment Lawyers Association of New Jersey,
Inc., make the same argument.

A-5388-16T3
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 We review the court's order dismissing the complaint de novo because it

is founded on a determination of a question of law - the validity of the

arbitration agreement. Barr v. Bishop Rosen & Co., Inc., 442 N.J. Super. 599,

605 (App. Div. 2015). "Our review of a contract, generally, is de novo, and

therefore we owe no special deference to the trial court's . . . interpretation.

Our approach in construing an arbitration provision of a contract is governed

by the same de novo standard of review." Atalese v. U.S. Legal Servs. Grp.,

L.P., 219 N.J. 430, 445-46 (2014) (citations omitted).

The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 to 16, and the New

Jersey Arbitration Act (NJAA), N.J.S.A. 2A:23B-1 to -32, reflect federal and

state policies favoring arbitration of disputes. Roach v. BM Motoring, LLC,

228 N.J. 163, 173-74 (2017); Hojnowski v. Vans Skate Park, 187 N.J. 323, 342

(2006). The FAA was enacted "to 'reverse the longstanding judicial hostility'

towards arbitration agreements and to 'place arbitration agreements upon the

same footing as other contracts,'" Roach, 228 N.J. at 173 (quoting Gilmer v.

Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991)), and "preempts state

laws that single out and invalidate arbitration agreements," id. at 174 (citing

Doctor's Assocs. v. Casarotto, 517 U.S. 681, 687 (1996)). A court "'cannot

subject an arbitration agreement to more burdensome requirements than' other

contractual provisions." Ibid. (quoting Atalese, 219 N.J. at 441).

A-5388-16T3
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 "The preference for arbitration 'is not without limits,'" Hirsch v. Amper

Fin. Servs., LLC, 215 N.J. 174, 187 (2013) (quoting Garfinkel v. Morristown

Obstetrics & Gynecology Assocs., 168 N.J. 124, 132 (2001)), and "[t]he right

of freedom to contract 'is not such an immutable doctrine as to admit of no

qualification,'" Rodriguez v. Raymours Furniture Co., Inc., 225 N.J. 343, 361

(2016) (quoting Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 388

(1960)). "[S]tate contract-law principles generally govern a determination

whether a valid agreement to arbitrate exists." Hojnowski, 187 N.J. at 342.

Thus, "[a]n arbitration clause may be invalidated 'upon such grounds as exist

at law or in equity for the revocation of any contract.'" Martindale v.

Sandvick, Inc., 173 N.J. 76, 85 (2002); see also Morgan v. Sanford Brown

Inst., 225 N.J. 289, 303-04 (2016) ("Under the FAA, an arbitration agreement,

like any contract, may be held invalid 'upon such grounds as exist at law or in

equity for the revocation of any contract.'"); Rent-A-Center, W., Inc. v.

Jackson, 561 U.S. 63, 68 (2010) (quoting Casarotto, 517 U.S. at 687) (finding

arbitration agreements "may be invalidated by 'generally applicable contract

defenses, such as fraud, duress, or unconscionability'").

Our courts have "recognize[d] that an individual may agree by contract

to submit his or her statutory LAD claim to alternative dispute resolution and

therefore different processes," Rodriquez, 225 N.J. at 364, and applied state

A-5388-16T3
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contract law principles in enforcing agreements requiring arbitration of

employment-related claims, see, e.g., Martindale, 173 N.J. at 91-92 (finding an

arbitration agreement in an employment application constitutes a binding

contractual obligation); Young v. Prudential Ins. Co. of Am., Inc., 297 N.J.

Super. 605, 618 (App. Div. 1997) (enforcing an agreement to arbitrate LAD

claims and claims arising under the Conscientious Employee Protection Act,

N.J.S.A. 34:19-1 to -14).

Applying contract principles, our courts have also determined

agreements otherwise requiring arbitration of employment-related claims are

unenforceable. See, e.g., Leodori v. Cigna Corp., 175 N.J. 293, 302-07 (2003)

(finding an arbitration requirement in an employee handbook was not binding

because there was no evidence the plaintiff consented to it); Garfinkel, 168

N.J. at 132-36 (finding an arbitration agreement too ambiguous to constitute a

binding contractual obligation waiving the right to a trial by jury); Quiqley v.

KPMG Peat Marwick, LLP, 330 N.J. Super 252, 270-73 (App. Div. 2000)

(finding an arbitration agreement unenforceable as to the plaintiff's LAD

claims because the contract did not clearly cover such claims).

In Rodriguez, the Court determined an arbitration agreement provision

requiring the filing of an employee's LAD claim within six months of its

accrual was unenforceable under general contract principles because it violated

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the public policy embodied in the LAD. 225 N.J. at 363-66. The Court noted

that "the right of freedom to contract 'is not such an immutable doctrine as to

admit of no qualification,'" and "[t]he right must recede to 'prevent its abuse,

as otherwise it could be used to override all public interests.'" Id. at 361

(quoting Henningsen, 32 N.J. at 388).

The Court found the LAD "exists for the good of all the inhabitants of

New Jersey," and is "imbued with a public-interest agenda" of eliminating

discrimination. Ibid. Thus, the Court reasoned that a "contractual limitation

on an individual's right to pursue and eradicate discrimination of any form

prohibited under the LAD is not simply . . . a private matter," but instead

"would curtail a claim designed to also further a public interest." Ibid. The

Court found the two-year statute of limitations for the filing of a LAD claim

recognized in Montells v. Haynes, 133 N.J. 282 (1993), has been tacitly

approved by the Legislature, and is "woven . . . into the fabric of the LAD" and

"part of the statutory program and how it operates." Id. at 362.

The Court observed that although an individual may agree by contract to

submit his or her LAD claims to arbitration, "in permitting the submission of

an LAD claim to an alternative forum by operation of contract, the contract is

examined to determine whether substantive rights have been precluded." Id. at

364. The Court determined the arbitration agreement requiring that LAD

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claims be filed within six months was unenforceable because it "is contrary to

the public policy expressed in the LAD," ibid., "undermines the integrated

nature of the statutory avenues of relief and the election of remedies available

to victims of discrimination," id. at 362, and would "effectively eliminate[ ]

claims,"3 id. at 363; see also Van Duren v. Rzasa-Ormes, 394 N.J. Super. 254,

267-68 (App. Div. 2007) (finding an arbitration agreement provision

foreclosing judicial review of an arbitration award void as against public

policy).

Measured against the standard employed by the Court in Rodriguez, we

are persuaded the arbitration agreement's bar of punitive damages claims under

the LAD is unenforceable because it violates the public policy embodied in the

LAD. Our Supreme Court has "long recognized that the essential purpose of

the LAD is the 'eradication of the cancer of discrimination.'" Quinlan v.

Curtiss-Wright Corp., 204 N.J. 239, 258 (2010) (quoting Fuchilla v. Layman,

3
The Court also observed that "contracts, or discrete contract provisions,"
may be unenforceable because they are unconscionable. Id. at 366. However,
the Court found it unnecessary to decide if the arbitration agreement's
provision requiring that LAD claims be filed within six months was
unconscionable because it otherwise violated public policy. Ibid. We similarly
do not address whether the punitive damages bar under the arbitration
agreement is unenforceable as unconscionable, see Muhammad, 189 N.J. at 15
(explaining the standard for determining whether an arbitration agreement is
unenforceable as unconscionable), because we determine the provision is
unenforceable because it violates public policy.

A-5388-16T3
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109 N.J. 319, 334 (1988)); accord Rodriguez, 225 N.J. at 361. The Court has

"been vigilant in interpreting the LAD in accordance with that overarching

purpose," Quinlan, 204 N.J. at 259, and "scrupulous in [its] insistence that the

[LAD] be applied to the full extent of its facial coverage,'" ibid. (quoting

Bergen Commercial Bank v. Sisler, 157 N.J. 188, 216 (1999)).

In 1990, the Legislature amended the LAD to permit the recovery of

punitive damages. L. 1990, c. 12. The amendment includes an unambiguous

declaration of public policy providing a substantive remedy to victims of

discrimination: "[t]he Legislature intends that [punitive] damages be available

to all persons protected by" the LAD. L. 1990, c. 12; N.J.S.A. 10:5-3.

"Awards of punitive damages [under the LAD] . . . serve particular

purposes, which [the Court has] described as 'the deterrence of egregious

misconduct and the punishment of the offender.'" Quinlan, 204 N.J. at 273

(quoting Herman v. Sunshine Chem. Specialties, Inc., 133 N.J. 329, 337-38

(1993)); see also Fischer, 103 N.J. at 657 (citation omitted) ("The doctrine of

punitive damages survives because it continues to serve the useful purposes of

expressing society's disapproval of intolerable conduct and deterring such

conduct where no other remedy would suffice."). Our Supreme Court "view[s]

the . . . scope of an employer's liability for compensatory and punitive

damages as a question of public policy," to be resolved in a manner

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"provid[ing] the most effective intervention and prevention of employment

discrimination." Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 625 (1993).

The availability of punitive damages serves the LAD's public policy of

eradicating employment discrimination by focusing on the deterrence and

punishment of particularly serious discriminatory conduct by certain

employees. See Fischer, 103 N.J. at 657 (noting that punitive damages "punish

the wrongdoer" and "deter both the wrongdoer and others from similar conduct

in the future"). Punitive damages may be awarded under the LAD only where

there is "proof that there was 'actual participation by upper management or

willful indifference,' and proof that the conduct was 'especially egregious.'"

Quinlan, 204 N.J. at 274 (quoting Rendine v. Pantzer, 141 N.J. 292, 313-14

(1995)). "[F]or an employer to be held liable for punitive damages under the

LAD, there must be some involvement by a member of the employer's upper

management." Cavuoti v. N.J. Transit Corp., 161 N.J. 107, 117 (1999). The

Court has defined those employees who may be properly considered to be in

upper management, see id. at 128-29, and stated the "purpose of the definition

of 'upper management' is to 'provid[e] employers with the incentive not only to

provide voluntary compliance programs'" directed at eliminating workp lace

discrimination, "but also to insist on the effective enforcement of their

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programs . . . [,]" id. at 128 (alteration in original) (quoting Lehmann, 131

N.J. at 626).

In our view, a contractual provision barring an employee's access to

punitive damages under the LAD not only violates public policy by

eliminating a remedy the Legislature expressly declared is available to all

victims of discrimination under the statute, see Martindale, 173 N.J. at 93-94

(enforcing an agreement to arbitrate LAD claims in part because none of the

plaintiff's substantive rights and remedies under the statute were affected);

N.J.S.A. 10:5-3, it also eviscerates an essential element of the LAD's purpose –

deterrence and punishment of the most egregious discriminatory conduct by

employees who, by virtue of their position and responsibilities, see Cavuoti,

161 N.J. at 128-29 (providing the standards for inclusion in upper

management), control employer policies and actions that should prevent

discriminatory conduct in the workplace. An agreement barring the recovery

of punitive damages to victims of employment discrimination under the LAD

allows an employer's upper management to be willfully indifferent to the most

egregious forms of discriminatory conduct without fear of punishment and

without the incentive to stop or prevent the discriminatory conduct that the

availability of punitive damages is intended to provide. We find such a result

is contrary to the public policy underlying the LAD – the eradication of

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discrimination – and therefore the arbitration agreement's bar to the recovery

of punitive damages is unenforceable as against public policy. Rodriguez, 225

N.J. at 361; see also Estate of Anna Ruszala ex. rel. Mizerak v. Brookdale

Living Cmtys., Inc., 415 N.J. Super. 272, 298-99 (App. Div. 2010) (finding an

arbitration agreement provision precluding recovery of punitive damages

otherwise available under the Nursing Home Responsibilities and Rights of

Residents Act, N.J.S.A. 30:13-1 to -17, is "void and unenforceable under the

doctrine of substantive unconscionability").

As we determined in Ruszala, where we found an arbitration agreement

provision precluding the recovery of punitive damages unenforceable, "the

remedy here is to enforce our federal policy in favor of arbitration, while

excising . . . restrictions we have concluded are unenforceable." 415 N.J.

Super. at 300; see also Muhammad, 189 N.J. at 26 (finding an arbitration

agreement's class-arbitration waiver was unenforceable and severing the

waiver provision). We reject plaintiff's claim that severance of the

unenforceable provision barring recovery of punitive damages is not

appropriate because the arbitration agreement does not expressly provide for

severance. See, e.g., Muhammad, 189 N.J. at 26 (rejecting the argument that

severance of an unenforceable contract provision was inappropriate in part

because the agreement reflected an intention that the contract would be

A-5388-16T3
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implemented without the unenforceable provision); Ruszala, 415 N.J. Super. at

300 (concluding severance of unenforceable contract provisions was

appropriate "as provided for in the arbitration agreement").

"[I]f a contract contains an illegal provision, if such provision is

severable [we] will enforce the remainder of the contract after excising the

illegal position." Naseef v. Cord, Inc., 90 N.J. Super. 135, 143 (App. Div.),

aff'd, 48 N.J. 317 (1966). In Van Duren, 394 N.J. Super. at 268, the arbitration

agreement did not address severability, but we nevertheless determined that an

unenforceable provision barring judicial review of an arbitration award should

be severed because "the agreement [was] otherwise valid and enforceable." As

the Third Circuit Court of Appeals stated in a similar context, "[y]ou don’t cut

down the trunk of a tree because some of its branches are sickly." Spinetti v.

Serv. Corp. Int'l, 324 F.3d 212, 214 (3d Cir. 2003).

We are satisfied the unenforceable prohibition against the recovery of

punitive damages should be severed from the otherwise valid agreement to

arbitrate the claims asserted in the complaint. The parties shall do so,

however, without any limitation on plaintiff's right to recover punitive or

exemplary damages.

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 III.

Plaintiff next argues that even if the punitive damages waiver provision

is valid or otherwise severable, the arbitration agreement is unenforceable

because she did not knowingly and voluntarily enter into an agreement to

arbitrate the claims asserted in the complaint. More particularly, she contends

the arbitration agreement did not include a sufficiently clear waiver of her

right to litigate her claims in court, her right to a jury trial and her right to

punitive and exemplary damages. She also argues she did not knowingly

waive any of her rights because she was not provided an opportunity to take

the document home, did not have legal counsel, was not told she was giving up

her right to proceed to court, and did not understand what the terms "punitive"

and "exemplary" meant. Last, she claims she was entitled to a plenary hearing

on her claim that she did not knowingly and voluntarily waive her rights by

entering into the arbitration agreement.

An arbitration agreement, "like any other contract, 'must be the product

of mutual assent, as determined under customary principles of contract law.'"

Atalese, 219 N.J. at 442 (citation omitted). "Mutual assent requires that the

parties have an understanding of the terms to which they have agreed." Ibid.

"This requirement of a 'consensual understanding' about the rights of access to

the courts that are waived in the agreement has led our courts to hold that

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clarity is required." Moore v. Woman to Woman Obstetrics & Gynecology,

L.L.C., 416 N.J. Super. 30, 37 (App. Div. 2010) (citation omitted).

"By its very nature, an agreement to arbitrate involves a waiver of a

party's right to have her claims and defenses litigated in court." Atalese, 219

N.J. at 442 (citation omitted). However, "an average member of the public

may not know — without some explanatory comment — that arbitration is a

substitute for the right to have one's claim adjudicated in a court of law." Ibid.

Plaintiff's claim that the agreement does not adequately state she waived

her right to proceed in court and to a jury trial is undermined by the

agreement's plain language. The agreement states that plaintiff and Bergen

Logistics agree not to "file or maintain any lawsuit, action or legal proceeding

of any nature with respect to any dispute, controversy or claim within the

scope of [the] Agreement," and that "BY SIGNING [THE] AGREEMENT

[PLAINTIFF] AND THE COMPANY ARE WAIVING ANY RIGHT,

STATUTORY OR OTHERWISE TO A TRIAL BY JURY." The agreement

also expressly states that any covered claims "shall be resolved exclusively by

final and binding arbitration." In Atalese, the Court held "the absence of any

language in the arbitration provision that plaintiff was waiving her statutory

right to seek relief in a court of law renders the provision unenforceable." Id.

at 436. Here, the arbitration agreement informed plaintiff that the exclusive

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forum for resolution of her claims was arbitration, she was prohibited from

filing any other lawsuits or legal proceedings and she waived her right to a

trial by jury.

The Court in Atalese provided "examples of language sufficient to meet

these expectations." Barr, 442 N.J. Super. at 606. Our Supreme Court noted

our decision in Griffin v. Burlington Volkswagen, Inc., 411 N.J. Super. 515,

518 (App. Div. 2010), where we "upheld an arbitration clause, which

expressed that '[b]y agreeing to arbitration, the parties understand and agree

that they are waiving their rights to maintain other available resolution

processes, such as a court action or administrative proceeding, to settle their

disputes.'" Atalese, 219 N.J. at 445.

In Atalese, the Court also cited an arbitration clause stating "the plaintiff

agreed 'to waive [her] right to a jury trial,'" and another where the arbitration

clause stated: "Instead of suing in court, we each agree to settle disputes . . .

only by arbitration," where "[t]here's no judge or jury." Id. at 444-45 (citations

omitted). A valid arbitration agreement does not require advice on all

component rights encompassed in a waiver of seeking relief in court. Such a

requirement would render arbitration clauses too complex, hard to understand,

and easy to invalidate, in contravention of the strong public policy favoring

arbitration. See Jaworski v. Ernst & Young U.S. LLP, 441 N.J. Super. 464,

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480-81 (App. Div. 2015) (upholding an arbitration clause stating the parties

would not "be able to sue in court," and rejecting plaintiffs' argument that the

"the arbitration agreement must inform the parties of (1) the number of jurors,

(2) the parties' rights to choose the jurors, (3) how many jurors would have to

agree on a verdict, and (4) who will decide the dispute instead of the jurors.").

Here, the agreement made clear that the parties opted for arbitration to

resolve their disputes rather than "lawsuit[s], action or [other] legal

proceeding[s]," and the arbitration would be conducted before the American

Arbitration Association, not a court. The agreement expressly provided, in

bold letters, that plaintiff and Bergen Logistics waived their right to a trial by

jury. Thus, the record provides no support for plaintiff's claim the arbitration

agreement did not provide adequate notice plaintiff waived her right to

prosecute her claims in a court proceeding and to a trial by jury. An

enforceable arbitration agreement "at least in some general and sufficiently

broad way, must explain that plaintiff is giving up her right to bring her claims

in court or have a jury resolve the dispute." Atalese, 219 N.J. at 447. The

arbitration agreement meets that standard here. 4

4
Because we have determined the agreement's putative waiver of plaintiff's
right to seek punitive and exemplary damages is unenforceable, it is
unnecessary to address her claim she did not knowingly and voluntarily agree
to the waiver because the term "punitive and exemplary damages" was not
(continued)

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 We also reject plaintiff's contention the agreement is not enforceable

because she was not provided an opportunity to read it, could not understand it

or was not informed of her right to confer with counsel. The argument is also

contradicted by the plain language of the agreement, stating that by its

execution plaintiff acknowledged and agreed she read it, had sufficient time to

study and consider it, had sufficient time to confer with counsel of her choice,

understood its terms, signed it knowingly and voluntarily, and did not rely on

any statements or representations by Bergen Logistics in doing so. In

plaintiff's submissions, she does not address this provision of the agreement or

contend she did not, or could not, understand it.

Moreover, "[a] party who enters into a contract in writing, without any

fraud or imposition being practiced upon him, is conclusively presumed to

understand and assent to its terms and legal effect." Rudbart v. N. Jersey Dist.

Water Supply Comm'n, 127 N.J. 344, 353 (1992) (quoting Fivey v. Pa. R.R.

Co., 67 N.J.L. 627, 632 (E. & A. 1902)). An employee who signs but claims

(continued)
explicitly defined in the agreement. We observe, however, that the damages
waiver was clearly and unequivocally stated in the agreement, and plaintiff's
inability to understand the term would not otherwise have been a defense to
the enforceability of the arbitration agreement. See New Gold Equities Corp.
v. Jaffe Spindler Co., 453 N.J. Super 358, 381 (App. Div. 2018) (noting the
general rule that a party to a contract is presumed to have read and understood
its terms absent a showing of fraud or misconduct).

A-5388-16T3
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to not understand an arbitration agreement will not be relieved from an

arbitration agreement on those grounds alone. See Booker v. Robert Half Int'l,

Inc., 315 F. Supp. 2d 94, 101 (D.D.C. 2004) ("Failing to read or understand an

arbitration agreement, or an employer's failure to explain it, simply will not

constitute 'special circumstances' warranting relieving an employee from

compliance with the terms of an arbitration agreement that she signed.").

Thus, plaintiff's claims she was unable to read or understand the agreement

and, for some undisclosed reason, precluded from conferring with her counsel

are unavailing, and did not require a plenary hearing.

Plaintiff's remaining arguments are without sufficient merit to warrant

discussion in a written opinion. 5 R. 2:11-3(e)(1)(E).

In sum, we affirm the court's order dismissing the complaint. The

parties may proceed to arbitration in accordance with the arbitration

agreement, but the provision barring recovery of punitive and exemplary

5
We note that at oral argument, plaintiff's counsel argued for the first time
that the arbitration agreement contained an unenforceable fee-shifting
provision, and that the combination of the fee-shifting provision and punitive
damages waiver constituted and integrated scheme that rendered the agreement
unenforceable. We do not address the fee-shifting argument either alone or as
it pertains to any purported scheme because it was not raised before the motion
court and does not involve jurisdictional or public interest concerns, Zaman v.
Felton, 219 N.J. 199, 226-27 (2014), and was not briefed on appeal, see
Jefferson Loan Co., Inc. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div.
2008) (finding that an issue not briefed on appeal is deemed waived).

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damages is unenforceable and void. Plaintiff shall be permitted to prosecute

her claims for such damages at arbitration.

Affirmed as modified.

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