NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4211-18T3
JARROD MAGA,
Plaintiff-Appellant,
v.
PREMIER CONSULTING GROUP,
INC., d/b/a XTENSEGRITY/ZAG,
MADHU MADHAVAN, and
MOHAN VENGLAT,
Defendants-Respondents.
Argued November 19, 2019 – Decided January 29, 2020
Before Judges Hoffman, Currier and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-2329-18.
Jamison M. Mark argued the cause for appellant (Mark
Law Firm LLC, attorneys; Jamison M. Mark, of counsel
and on the briefs).
Jay H. Ganatra argued the cause for respondents
(Hartmann Doherty Rosa Berman & Bulbulia, LLC,
attorneys; Paul Schoonmak Doherty, III, Kelly A.
Zampino, and Jay H. Ganatra, on the brief).
PER CURIAM
Plaintiff Jarrod Maga appeals from an order dismissing his complaint and
compelling arbitration. Because we conclude the arbitration agreement did not
include a sufficiently clear waiver of plaintiff's right to litigate his claims in
court, we reverse.
In March 2017, plaintiff was hired by defendant Premier Consulting
Group Inc. After he filed a complaint with the United States Department of
Labor about defendant, he was terminated in 2018. Plaintiff filed suit, alleging
breach of contract, unjust enrichment, violation of the Wage Payment Law,
N.J.S.A. 34:11-4.1 to -4.14, and that his termination constituted retaliation under
the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14.
At the time of his hiring, plaintiff signed an employment agreement.
Section 9 is entitled Resolution of Disputes. Section 9.1 states:
Subject to the provisions of Subsection 9.2 of this
Agreement, any and all controversies or claims arising
out of or relating to this Agreement, its performance,
construction, interpretation or breach, or otherwise
relating to or arising from [plaintiff's] employment or
the termination thereof (including claims for
employment discrimination or claims under any local,
state or federal statute or regulation), shall be resolved
by final and binding arbitration, to the greatest extent
allowed by law, which arbitration will be conducted in
Delaware in accordance with the rules of the American
Arbitration Association then in effect, and any award
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that may be rendered by the arbitrator or arbitrators may
be enforced in any court of competent jurisdiction. The
arbitrator shall have no authority to change or modify
any provision of this Agreement.
Defendants moved to dismiss the complaint and compel arbitration under
the agreement. In his opposition, plaintiff argued the terms of the agreement
were ambiguous and Section 9.1 lacked the legally required language for his
knowing waiver and for a meeting of the minds. In addition, because the
agreement did not have a separate provision advising of the waiver of a jury
trial, it was unenforceable.
The court granted the motion in a March 29, 2019 order and written
decision. Finding the arbitration clause was clear that all claims arising out of
the agreement, including discrimination claims, would be resolved by final and
binding arbitration, the court dismissed the complaint without prejudice and
ordered the parties to arbitrate their dispute. The court denied plaintiff's motion
for reconsideration on May 10, 2019.
Plaintiff argues on appeal, as he did before the trial court, that the
arbitration clause in the employment agreement was unenforceable because it
did not refer to an explicit waiver of a jury trial. He contends there is a
fundamental right to a jury in a CEPA matter, and case law, specifically Atalese
A-4211-18T3
3
v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430 (2014), requires arbitration clauses
to contain an express waiver of the right to a jury.
We review the trial court's determination of the enforceability of an
arbitration clause in a contract de novo. Goffe v. Foulke Mgmt. Corp., 238 N.J.
191, 207 (2019) (citing Hirsch v. Amper 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 . . . ." Ibid. (citing Morgan v. Sanford Brown Inst., 225 N.J. 289, 303
(2016)).
The Federal and New Jersey Arbitration Acts, see 9 U.S.C. §§ 1 to 16 and
N.J.S.A. 2A:23B-1 to -32, express a general policy favoring arbitration.
Atalese, 219 N.J. at 440 (citing AT&T Mobility LLC v. Concepcion, 563 U.S.
333, 339 (2011)). "The public policy of this State favors arbitration as a means
of settling disputes that otherwise would be litigated in a court." Badiali v. N.J.
Mfrs. Ins. Grp., 220 N.J. 544, 556 (2015) (citing Cty. Coll. of Morris Staff v.
Cty. Coll. of Morris Staff Ass'n, 100 N.J. 383, 390 (1985)). While enforcement
is favored, it "does not mean that every arbitration clause, however phrased, will
be enforceable." Atalese, 219 N.J. at 441 (citing Hirsch, 215 N.J. at 187).
A-4211-18T3
4
In Atalese, the Court held that "[t]he absence of any language in the
arbitration provision that plaintiff [is] waiving [his or] her statutory right to seek
relief in a court of law renders the provision unenforceable." Id. at 436
(emphasis in original). While no precise set of words must be included in the
arbitration provision, the words that make up the clause "must be clear and
unambiguous that a consumer is choosing to arbitrate disputes rather than have
them resolved in a court of law." Id. at 447.
The Atalese Court provided several examples of language that would meet
its expectations of clarity and proper notice to a person that he or she was giving
up his or her right to a jury trial. The Court noted the language in Griffin where
this court 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
(alteration in original) (quoting Griffin v. Burlington Volkswagen, Inc., 411 N.J.
Super. 515, 518 (App. Div. 2010)).
The Court offered other examples: where the arbitration clause stated "the
plaintiff agreed 'to waive [her] right to a jury trial,'" and where the arbitration
clause stated: "Instead of suing in court, we each agree to settle disputes . . .
A-4211-18T3
5
only by arbitration," where "[t]here's no judge or jury. . . ." Id. at 444-45 (first
alteration in original) (first quoting Martindale v. Sandvik, Inc., 173 N.J. 76, 81-
82, 96 (2002); and then quoting Curtis v. Cellco P'ship, 413 N.J. Super. 26, 31
(App. Div. 2010)). The Court stated an arbitration "clause, at least in some
general and sufficiently broad way, must explain that the plaintiff is giving up
her right to bring her claims in court or have a jury resolve the dispute." Id. at
447.
Here, the arbitration clause is deficient under the Atalese standard.
Although the clause does reference final binding arbitration and provides a
venue and arbitration forum, it lacks any mention of the waiver of any right or
that plaintiff is foreclosed from bringing a claim in court. The signor of the
agreement is not advised that arbitration is a waiver of the right to bring a suit
in a judicial forum.
While the language suggested in Atalese to satisfy a knowing waiver of a
basic right may be simple in its words, it is crucial in its significance. Without
a reference to a waiver of a right, one cannot know with certainty "that
arbitration is a substitute for the right to have one's claim adjudicated in a court
of law." Id. at 442. Therefore, the arbitration clause here is unenforceable.
A-4211-18T3
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Reversed and remanded for further proceedings. We do not retain
jurisdiction.
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