NOT FOR PUBLICATION WITHOUT THE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-0350-20
DARRYL SEELHORST and
JAMES TAWN VIGIE,
Plaintiffs-Appellants,
v.
IMMUNOMEDICS, INC.,
DEBRA WARNER, and
WILLIAM CONKLING,
Defendants-Respondents.
___________________________
Submitted May 12, 2021 – Decided June 7, 2021
Before Judges Sumners and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Docket No. L-1226-20.
Joseph & Kirschenbaum, LLP, attorneys for appellants
(Lucas C. Buzzard, on the briefs).
Littler Mendelson, P., attorneys for respondents (Ivan
R. Novich and Sandra T. Jimenez, on the brief).
PER CURIAM
Plaintiffs Darryl Seelhorst and James Tawn Vigie appeal from an August
28, 2020 order granting defendants Immunomedics, Inc. (the Company), Debra
Warner, and William Conkling's motion to compel arbitration and staying this
action while plaintiffs' claims were being arbitrated. We affirm.
The facts relevant to the arbitration provisions are not in dispute. From
October 2018 until January 9, 2020, plaintiffs were employed by the Company
as oncology account managers or pharmaceutical sales representatives. As a
term and condition of their employment, plaintiffs were required to agree to and
execute the Company's "Arbitration Policy With Respect To Dispute Resolution
and Arbitration" (the Arbitration Agreement). Plaintiffs certified that they "read
and understood, and agree[d] to comply with, [the Arbitration Agreement]."
In relevant part, the Arbitration Agreement provides:
The Company will try and resolve disputes with
employees through internal discussions. However, if
disputes cannot be resolved, you may submit your claim
to the American Arbitration Association ("AAA") for
final and binding arbitration under the AAA's
Employment Dispute Rules. The Company may also
submit any claim it has against you to arbitration.
Copies of the AAA’s current Rules are available from
the Company’s Human Resources Department.
1) This Arbitration Procedure covers all claims or
controversies arising out of your employment or
its termination ("Claims"). It covers Claims
concerning discipline and discharge, benefits, job
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bidding, seniority rights, safety rules, and the
interpretation or application of any of the
provisions of the Company's Employee
Handbook. It covers Claims for wages or other
compensation or benefits; Claims for breach of
any contract or covenant whether express or
implied; tort Claims; Claims for discrimination
(including, but not limited to, race, color, sex,
sexual orientation or preference, religion,
national origin, age, marital status, handicap or
disability, veteran or citizenship status); Claims
of sexual harassment; and Claims for violation of
any federal, state, or local government
constitution, law, statute, regulation, or
ordinance.
....
3) A written arbitration demand must be made no
later than ninety (90) calendar days after the
Claim arises, unless a longer period is otherwise
provided by law, or it will be conclusively
resolved against the claiming party.
....
7) The arbitrator shall issue a written award and
an opinion explaining the award. The arbitrator's
decision shall be final, binding, and subject to
review only pursuant to the Federal Arbitration
Act or comparable state law.
....
9) This Arbitration Procedure bars litigation in
any court by either the Company or you of any
Claim that should be arbitrated under the
Procedure. However, you and the Company have
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the right to move in court to compel arbitration
or to confirm and enforce an arbitrator's award
under this Arbitration Procedure.
In the event that any court determines for any reason
that this Arbitration Procedure is not binding, or
otherwise allows any litigation regarding a Claim
covered by this Arbitration Procedure to go forward,
the Company and you agree that (i) the court
proceeding must be commenced no later than six (6)
months after the court makes such a determination,
unless a longer period is otherwise provided by law;
and (ii) all rights to a trial by jury in the litigation are
expressly waived.
[(Emphasis added).]
On January 9, 2020, the Company terminated plaintiffs' employment.
Five months later, plaintiffs filed a two-count complaint alleging: (1)
defendants retaliated and wrongfully discharged them for complaining about
allegedly unlawful Company practices, in violation of the Conscientious
Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14 (count one); and (2)
the Company fraudulently induced plaintiffs to enter into employment
agreements and continue their employment with the Company by
misrepresenting the state of its business, its ability to meet sales targets, and
plaintiffs' compensation (count two).
In lieu of filing an answer, defendants moved to compel arbitration in
accordance with the Arbitration Agreement and to dismiss count two as time-
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barred under a provision of the Arbitration Agreement. The Company argued
that plaintiffs entered into the Arbitration Agreement and their claims were
encompassed by its broad provisions, which specifically included CEPA claims.
The Company asserted that "no magic words are required" to create an
enforceable agreement to arbitrate employee disputes and claims. Relying on
the "strong public policy in favor of arbitration[,]" the Company stated that
"reasonable doubts . . . should be resolved in favor of arbitration." The Company
contended that the use of the word "may" did not make the Arbitration
Agreement permissive, because such an interpretation is "inconsistent with the
other language in the agreement . . . ."
Plaintiffs opposed the motion, contending the Arbitration Agreement
Policy gave each party a permissive right to elect arbitration but did not mandate
arbitration of plaintiffs' claims as the exclusive means of dispute resolution and
that count two was not time-barred. Plaintiffs argued that the operative language
of the Arbitration Agreement was permissive, stating that if disputes with
employees could not be resolved "through internal discussions" employees "may
submit [their] claim to the [AAA] for final and binding arbitration under the
AAA's Employment Dispute Rules." Plaintiffs contended that because the
Arbitration Agreement did not state that "the employee must submit his claim
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to arbitration," they did not clearly and unambiguously waive their right to
litigate their claims in court. They further argued that the operative language
was conditional and ambiguous and that any ambiguity in the Arbitration
Agreement should resolved against the Company, which drafted it.
On August 28, 2020, the court issued an order and written statement of
reasons granting defendants' motion to compel arbitration and staying the action
while plaintiffs' claims were being arbitrated. The court rejected plaintiffs'
argument that arbitration is not compulsory, stating:
In view of New Jersey's strong public policy favoring
arbitration, and notwithstanding the inartful use of the
term "may," [the] court finds that the clear intent of the
parties was to arbitrate all claims arising from or related
to [p]laintiffs' employment. Claims subject to
arbitration comprise claims for violation of any federal,
state or local law or statute, which would include CEPA
claims. Aside from [d]efendants' argument as to how
the "may" provision should be interpreted, the court’s
conclusion requiring the parties' intent for obligatory
arbitration is confirmed by the first numbered
paragraph stating, "This Arbitration Procedure covers
all claims or controversies arising out of your
employment or its termination" and the ninth numbered
paragraph that provides, "this Arbitration Procedure
bars litigation in any court by either the Company or
you of any Claim that should be arbitrated under the
Procedure."
Considering the strong public policy favoring
"arbitration as a means of dispute resolution" and
requiring "liberal construction of contracts in favor of
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6
arbitration," [Young v. Prudential Ins. Co. of Am., 297
N.J. Super. 605, 617 (App. Div. 1997)], any potential
dispute about what was intended by the term "may" is
dispositively resolved by the subsequent provisions of
the Agreement that make clear that arbitration
procedures bar litigation of claims relating to
[p]laintiffs' employment in any court. Therefore,
[d]efendants' motion to dismiss [p]laintiffs' complaint
is granted. The parties shall attend arbitration in
accordance with the Agreement.
The court also concluded it was precluded from determining whether the
fraudulent inducement claim (count two) was time-barred because the scope of
its review was "limited to determining: (1) whether a valid agreement to arbitrate
exists; and, if it does, (2) if the arbitration agreement encompasses the dispute
or claims at issue." This appeal followed.
Plaintiffs raise the following points for our consideration:
A. STANDARD OF REVIEW & GENERAL
PRINCIPLES GOVERNING THE
INTERPRETATION OF ARBITRATION
AGREEMENTS UNDER NEW JERSEY LAW.
B. THE PLAIN LANGUAGE OF THE
ARBITRATION AGREEMENT PERMITS (BUT
DOES NOT REQUIRE) EACH PARTY TO SELECT
ARBITRATION TO RESOLVE ITS OWN CLAIMS
AND TO HAVE THAT SELECTION ENFORCED.
1. The plain language of the opening paragraph
is permissive – it permits (but does not require)
each party to select arbitration as the forum for
resolving its own claims.
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2. Paragraphs One and Nine of the Agreement do
not mandate the arbitration of all disputes
between the parties or permit the Company to
compel the arbitration of Plaintiffs' own claims;
instead, these paragraphs allow the claiming
party to enforce its selection of arbitration as the
forum for resolving its own claims.
C. ANY AMBIGUITY IN THE ARBITRATION
AGREEMENT MUST BE CONSTRUED AGAINST
IMMUNOMEDICS AS THE DRAFTER.
Appellate courts "apply a de novo standard of review when determining
the enforceability of contracts, including arbitration agreements." 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 . . . ." Ibid. (citing Morgan v. Sandford Brown
Inst., 225 N.J. 289, 303 (2016)). Reviewing courts do not defer to a trial court's
interpretative analysis. Morgan, 225 N.J. at 303 (citing Atalese v. U.S. Legal
Servs. Grp., L.P., 219 N.J. 430, 445-46 (2014)). "We therefore construe the
arbitration provision with fresh eyes." Ibid. (citing Kieffer v. Best Buy, 205 N.J.
213, 223 (2011)).
"The Federal Arbitration Act (FAA), 9 [U.S.C.] §§ 1-16, and the nearly
identical New Jersey Arbitration Act, N.J.S.A. 2A:23B-1 to -32, enunciate
federal and state policies favoring arbitration." Atalese, 219 N.J. at 440 (citing
A-0350-20
8
AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011)). "[O]ur
jurisprudence has recognized arbitration as a favored method for resolving
disputes." Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 168
N.J. 124, 131 (2001). We therefore review orders compelling or denying
arbitration "mindful of the strong preference to enforce arbitration agreements,
both at the state and federal level." Hirsch, 215 N.J. at 186.
Under the FAA, arbitration is a creature of contract. 9 U.S.C. § 2; Rent-
A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 67 (2010); see also Hirsch, 215 N.J. at
187 (explaining that under New Jersey law, arbitration is also a creature of
contract). "Accordingly, the FAA 'permits states to regulate . . . arbitration
agreements under general contract principles,' and a court may invalidate an
arbitration clause 'upon such grounds as exist at law or in equity for the
revocation of any contract.'" Atalese, 219 N.J. at 441 (alteration in original)
(quoting Martindale v. Sandvik, Inc., 173 N.J. 76, 85 (2002)).
In determining whether a matter should be submitted to arbitration, a court
must evaluate (1) whether a valid agreement to arbitrate exists, and (2) whether
the dispute falls within the scope of the agreement. Mitsubishi Motors Corp. v.
Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985); Martindale, 173 N.J.
at 92. The agreement to arbitrate may include a waiver of statutory remedies in
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9
favor of arbitration, Garfinkel, 168 N.J. at 131, including claims arising under
CEPA. Young, 297 N.J. Super. at 619.
Plaintiffs do not dispute that the provisions of the Arbitration Agreement
are valid and enforceable. They were the product of mutual assent and clearly
state that the parties were giving up their right to pursue claims in court and,
instead, agreed to arbitrate those claims before an arbitrator, if either party
elected to pursue arbitration. See Atalese, 219 N.J. at 442 ("An agreement to
arbitrate, like any other contract, 'must be the product of mutual assent, as
determined under customary principles of contract law.'" (quoting NAACP of
Camden Cnty. E. v. Foulke Mgmt. Corp., 421 N.J. Super. 404, 424 (App. Div.
2011)).
The Arbitration Agreement provides that either the employee or the
Company "may" submit an employee's claim "to the [AAA] for final and binding
arbitration . . . ." It further provides that the "Arbitration Procedure bars
litigation in any court by either the Company or you of any Claim that should
be arbitrated under the Procedure." "[N]o prescribed set of words must be
included in an arbitration clause to accomplish a waiver of rights." Atalese, 219
N.J. at 447. Here, the use of "may" and "should" does not create an
inconsistency or ambiguity.
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The "intent expressed or apparent in the writing . . . controls" the
interpretation of an arbitration agreement. Garfinkel, 168 N.J. at 135. The clear
and unmistakable intent of the Arbitration Agreement is to allow either the
employee or the Company to submit any unresolved employee disputes and
claims to the AAA for final and binding arbitration, including any "tort [c]laims"
and any "[c]laims for violation of any federal, state, or local government
constitution, law, statute, regulation, or ordinance." Plaintiffs' claims fell within
the scope of the Arbitration Agreement. The Company elected to submit
plaintiffs' claims to the AAA for binding and enforceable arbitration. That
election is enforceable. The trial court correctly granted defendants' motion to
compel arbitration in accordance with the Arbitration Agreement.
Our interpretation gives full effect to the entire agreement. See Sonitrol
Holding Co. v. Marceau Investissements, 607 A.2d 1177, 1183 (Del. 1992)
("Under general principles of contract law, a contract should be interpreted in
such a way as to not render any of its provisions illusory or meaningless."). In
contrast, plaintiffs' interpretation of the Arbitration Agreement would render
much of it meaningless.
The FAA provides that a party may request a stay if a court action has
been commenced and the action involves "any issue referable to arbitration
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under an agreement in writing for such arbitration." 9 U.S.C. § 3. The Company
did just that. The trial court properly stayed the action pending arbitration and
retained jurisdiction.
Affirmed.
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