V.S. v. T-MOBILE, USA, INC. (L-2946-21, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0973-21

V.S.,1

Plaintiff-Appellant,

v.

T-MOBILE, USA, INC., and
JAYSON PATROCHE,

Defendants-Respondents.
____________________________

Submitted June 7, 2022 – Decided June 21, 2022

Before Judges Sumners and Firko.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-2946-21.

1
In her complaint, plaintiff used initials in lieu of her full name to protect her
identity citing Rule 1:38-3 claiming she is a victim of a sexual offense, which is
provided in Rule 1:39-3(c)(12). However, Rule 1:39-3(c)(12) is limited to
actions commenced in the criminal and municipal courts. Plaintiff should have
filed an application with the trial court for authorization to proceed with her
complaint using her initials. For purposes of consistency, we refer to plaintiff
as V.S. in this opinion.
 Stradley Ronon Stevens & Young, attorneys for
appellant (Andrew Hamelsky and Zaara Bajwa Nazir,
on the briefs).

Goldberg Segalla, LLP, attorneys for respondent T-
Mobile, USA, Inc. (Thomas J. O'Grady, on the brief).

PER CURIAM

Plaintiff V.S. appeals from the October 26, 2021 Law Division order

dismissing her complaint against defendant T-Mobile, USA, Inc. (T-Mobile)

without prejudice and compelling arbitration. Plaintiff's complaint alleges

thirteen causes of action against T-Mobile and defendant Jayson Patroche

stemming from events, which occurred on February 5, 2021, involving her

purchase of a new cell phone and the unauthorized transfer of nude photos and

data. For the reasons that follow, we affirm.

I.

The following facts are derived from the motion record. On February 5,

2021, plaintiff went to a T-Mobile retail store in Montclair to purchase a new

cell phone. The retail store is operated by third-party vendors of T-Mobile,

Portables Unlimited, Inc. and Elite One Mobile, Inc.

Plaintiff claims "the T-Mobile employees advised [her] that they could

transfer data from her old cell phone to the new one she was purchasing that

day." Plaintiff gave Patroche her old cell phone to transfer the data, and he

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informed her the transfer would take a while. According to plaintiff, she left the

store to pick up her child with her new cell phone but left her old cell phone at

the store with Patroche "while the data was still uploading to her new cell

phone." Plaintiff was to "call the T-Mobile [s]tore once her data fully uploaded

to her new cell phone to let the T-Mobile [s]tore know that they could delete the

data from her old cell phone."

Once the data came through to the new phone, plaintiff notified the store.

An employee other than Patroche directed her to return to provide a password

in order to delete the data on the old cell phone. The employee gave plaintiff

her old cell phone back upon her arrival. Plaintiff alleges she saw "nine of [her]

highly personal nude photos were texted to a phone number with a 973 area

code" while Patroche possessed her old cell phone at the store. She then called

the number and observed Patroche "pick[] up his own personal phone." When

plaintiff confronted Patroche, he denied sending her nude photos to his cell

phone. He had allegedly been in possession of plaintiff's old cell phone "for

three hours."

In her complaint, plaintiff avers the following day she "searched the trash

folder of her email" and saw that Patroche "sent an additional [eighteen] nude

images of [p]laintiff from her personal email to his personal email address

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during the time he" possessed her cell phone. In addition, "[p]laintiff then

discovered that a photo of her credit card that [she] had taken one year prior had

been illegally downloaded and stolen off of [her] cloud during" that same time.

On April 12, 2021, plaintiff filed her complaint against defendants

alleging the following causes of action: sexual harassment and discrimination

due to gender under the New Jersey Law Against Discrimination Act, N.J.S.A.

10:5-1 to -50 (count one); the New Jersey Computer-Related Offenses Act,

N.J.S.A. 2A:38A-1 to -6 (count two); invasion of privacy, unreasonable

intrusion upon the seclusion of another (count three); invasion of privacy and

invasion of privacy with photographs in violation of N.J.S.A. 2A:58D -1 to

(count four); negligent hiring as to T-Mobile (count five); negligent retention as

to T-Mobile (count six); negligent training as to T-Mobile (count seven);

negligent supervision as to T-Mobile (count eight); negligence (count nine);

harassment (count ten); harassment in violation of N.J.S.A. 2C:33-4 (count

eleven); intentional infliction of emotional distress (count twelve); and theft

(count thirteen).

On July 19, 2021, T-Mobile filed its answer and affirmative defenses. T-

Mobile denied Patroche was its employee and asserted plaintiff's claims were

subject to arbitration. Plaintiff was a subscriber of wireless services from T-

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Mobile, which was subject to terms and conditions (T&Cs) as of September 1,

2020. T-Mobile's T&Cs begin by visibly stating: "Thanks for choosing T-

Mobile. Please read these [T&Cs], which contain important information about

your relationship with T-Mobile, including mandatory arbitration of disputes

between us, instead of class actions or jury trials. You will become bound by

these provisions once you accept these T&Cs." (Emphasis added). Under the

section entitled "HOW DO I ACCEPT THESE T&Cs?"2 found shortly

thereafter, the T&Cs explain to the reader:

You accept these T&Cs by doing any of the following
things:

• giving us a written or electronic signature or
confirmation, or telling us orally that you accept;
• activating, using or paying for the Service or a
Device; or
• opening the Device box.

If you don't want to accept these T&Cs, don't do any of
these things.

The following section entitled "WHAT IS INCLUDED IN THESE T&Cs?"

states the consumer will find important information in the T&Cs about

2
In our opinion, we use the bolded language for T-Mobile's T&Cs as found in
its original form.
A-0973-21
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"[r]esolution of disputes by arbitration and class action and jury trial waivers,"

and other information.

Most relevant to this action is the section conspicuously entitled " HOW

DO I RESOLVE DISPUTES WITH T-MOBILE?" The section states in part:

By accepting these T&Cs, you are agreeing to resolve
any dispute with us through binding arbitration or small
claims dispute procedures (unless you opt out), and to
waive your rights to a jury trial and to participate in any
class action suit. . . .

Dispute Resolution and Arbitration. YOU AND WE
EACH AGREE THAT, EXCEPT AS PROVIDED
BELOW, ANY AND ALL CLAIMS OR DISPUTES
IN ANY WAY RELATED TO OR CONCERNING
THE AGREEMENT, OUR PRIVACY POLICY,
OUR SERVICES, DEVICES OR PRODUCTS,
INCLUDING ANY BILLING DISPUTES, WILL
BE RESOLVED BY BINDING ARBITRATION OR
IN SMALL CLAIMS COURT. This includes any
claims against other parties relating to Services or
Devices provided or billed to you (such as our
suppliers, dealers, authorized retailers, or third[-]party
vendors) whenever you also assert claims against us in
the same proceeding. You and we each also agree that
the Agreement affects interstate commerce so that the
Federal Arbitration Act and federal arbitration law, not
state law, apply and govern the enforceability of this
dispute resolution provision (despite the general choice
of law provision set forth below). THERE IS NO
JUDGE OR JURY IN ARBITRATION, AND COURT
REVIEW OF AN ARBITRATION AWARD IS
LIMITED. THE ARBITRATOR MUST FOLLOW
THIS AGREEMENT AND CAN AWARD THE SAME

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 DAMAGES AND RELIEF AS A COURT
(INCLUDING ATTORNEYS' FEES).

....

Notwithstanding the above, YOU MAY CHOOSE TO
PURSUE YOUR CLAIM IN COURT AND NOT BY
ARBITRATION IF YOU OPT OUT OF THESE
ARBITRATION PROCEDURES WITHIN
[THIRTY] DAYS FROM THE EARLIER OF THE
DATE YOU PURCHASED A DEVICE FROM US
OR THE DATE YOU ACTIVATED A NEW LINE
OF SERVICE (the "Opt Out Deadline"). You must
opt out by the Opt Out Deadline for each line of
Service. You may opt out of these arbitration
procedures by calling 1-866-323-4405 or online at
www.T-Mobiledisputeresolution.com. Any opt-out
received after the Opt Out Deadline will not be valid
and you will be required to pursue your claim in
arbitration or small claims court.

On September 1, 2021, T-Mobile filed a motion to dismiss plaintiff's

complaint and to compel arbitration as per the T&Cs. In support of its motion,

T-Mobile submitted the certification of Christopher Muzio, an analyst and team

Chief Executive Officer, for T-Mobile, and a copy of the T&Cs. Muzio certified

that plaintiff subscribed to T-Mobile at all relevant times to the allegations; the

retail store was operated by a third-party vendor; she activated service from T-

Mobile; and she had not opted out of the arbitration procedures provided for in

the T&Cs.

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 Plaintiff asserted five points in her opposition to T-Mobile's motion to

dismiss and compel arbitration: (1) she did not sign the alleged portions of the

T&Cs; (2) T-Mobile failed to provide her with its purported T&Cs; (3) section

two of the Federal Arbitration Act (FAA) does not warrant arbitration in this

matter; (4) T-Mobile was on notice that its employees were invading customers'

privacy before; and (5) if arbitration was compelled, the trial court should stay,

not dismiss, her matter.3

On October 26, 2021, Judge Vena heard oral argument on the motion.

Following argument that day, the judge granted T-Mobile's motion and stated:

[T&Cs] in the very first paragraph are clear that
any disputes are to be arbitrated as opposed to a jury
trial. Thus, the [c]ourt is satisfied that both the notice
to the plaintiff, as well as the language within the
arbitration agreement merely informs the plaintiff of
plaintiff's waiver of access to the courts.

. . . This [c]ourt is satisfied that the terms are
clear, that all claims and disputes related to the
agreement are encompassed.

. . . This [c]ourt finds plaintiff may pursue a
claim against a third[-]party as alleged in the complaint
in court and without arbitration, as long as . . . T-Mobile
is not joined.

3
There are several references to plaintiff's opposition papers throughout the
briefs, transcript and Judge Thomas R. Vena's opinion. However, no such
documents are included in the record on appeal.
A-0973-21
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In his written statement of reasons, Judge Vena found "the claims alleged by

[p]laintiff are within the scope of the arbitration agreement." The judge

emphasized in the first paragraph of the T&Cs, its "clear that any disputes are

to be arbitrated, as opposed to a jury trial." Regarding plaintiff's argument that

the additional claims against T-Mobile, such as "theft and harassment, are

beyond the scope of the arbitration agreement[,]" the judge found the T&Cs "are

clear" and "all claims or disputes related to the agreement are encompassed." In

addition, the judge determined plaintiff may "pursue a claim against the third

parties alleged in this complaint, in court and without arbitration, so long as

[d]efendant T-Mobile is not joined." A memorializing order was entered.

On December 1, 2021, plaintiff appealed the October 26, 2021 order. On

January 5, 2022, plaintiff filed a motion in the Law Division for leave to file and

serve an amended complaint against Portables Unlimited and Elite One Mobile,

operators of the retail store and Patroche's employers. 4

On appeal, plaintiff presents the following arguments for our

consideration:

I. THE TRIAL COURT'S JUDGMENT DISMISSING
THE COMPLAINT AND COMPELLING
ARBITRATION MUST BE REVIEWED DE NOVO.
(Issue not raised below).

4
The record does not indicate the disposition of the motion.
A-0973-21
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 II. THE ALLEGED [T&Cs] ARE UNFAIR AS ASSENT
IS IMPOSED WHEN A CUSTOMER OPENS A BOX.

III. THE TRIAL COURT ERRED IN FINDING THAT T-
MOBILE'S [T&Cs] APPLIED TO [PLAINTIFF]'S
CLAIMS.

IV. THE TRIAL COURT ERRED IN DISMISSING THE
COMPLAINT INSTEAD OF A STAY.

II.

Orders compelling or denying arbitration are treated as final orders for

purposes of appeal. R. 2:2-3(a); GMAC v. Pittella, 205 N.J. 572, 586 (2011).

The validity of an arbitration agreement is a question of law. Atalese v. U.S.

Legal Servs. Grp., L.P., 219 N.J. 430, 446 (2014) (citing Hirsch v. Amper Fin.

Servs., LLC, 215 N.J. 174, 186 (2013)). Accordingly, the appellate court applies

a de novo standard of review when determining the enforceability of arbitration

agreements. Goffe v. Foulke Mgmt. Corp., 238 N.J. 191, 207 (2019) (citing

Hirsch, 215 N.J. at 186). As such, "we need not give deference to the analysis

by the trial court." Ibid. However, a trial court's factual findings are reviewed

for an abuse of discretion. See Cumberland Farms, Inc. v. N.J. Dep't of Env't.

Prot., 447 N.J. Super. 423, 437-38 (App. Div. 2016). "The general rule is that

findings by the trial court are binding on appeal when supported by adequate,

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substantial, credible evidence." Ibid. (quoting Seidman v. Clifton Sav. Bank,

S.L.A., 205 N.J. 150, 169 (2011)).

Both the Federal and the New Jersey Legislatures have "enunciate[d]

federal and state policies favoring arbitration." Atalese, 219 N.J. at 440

(citations omitted); see also Martindale v. Sandvik, Inc., 173 N.J. 76, 92 (2002)

("[T]he affirmative policy of this State, both legislative and judicial, favors

arbitration as a mechanism of resolving disputes." (citing Barcon Assocs. v. Tri-

Cnty. Asphalt Corp., 86 N.J. 179, 186 (1981))). 5

The FAA, 9 U.S.C.A. § 1 -307, requires courts to "place arbitration

agreements on equal footing with all other contracts." Skuse v. Pfizer, Inc., 244

N.J. 30, 47 (2020) (internal quotation marks omitted) (quoting Kindred Nursing

Ctrs. Ltd. P'ship v. Clark, 581 U.S. ___, 137 S. Ct. 1421, 1424 (2017)). Under

the FAA, "a state may not 'subject an arbitration agreement to more burdensome

requirements than those governing the formation of other contracts,'" or

invalidate the agreement through "state-law 'defenses that apply only to

5
We note that on May 23, 2022, the United States Supreme Court published its
opinion in the matter of Morgan v. Sundance, Inc. The Court held although the
FAA's policy favors arbitration, "a court may not devise novel rules to favor
arbitration over litigation." ___ U.S. ___, 142 S. Ct. 1708 (2022). Procedures
may not be implemented to "tilt the playing field in favor of (or against)
arbitration." Ibid.
A-0973-21
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arbitration or that derive their meaning from the fact that an agreement to

arbitrate is at issue.'" Ibid. (first quoting Leodori v. CIGNA Corp., 175 N.J. 293,

302 (2003); and then quoting Atalese, 219 N.J. at 441). The FAA, however,

does not bar all state-law defenses and "specifically permits states to regulate

contracts, including contracts containing arbitration agreements under general

contract principles." Ibid. (quoting Martindale, 173 N.J. at 85).

Similarly, the New Jersey Legislature codified its own endorsement of

arbitration agreements in the New Jersey Arbitration Act (NJAA), N.J.S.A.

2A:23B-1 to -36. See Hojnowski v. Vans Skate Park, 187 N.J. 323, 342 (2006).

The statute was enacted to "advance arbitration as a desirable alternative to

litigation and to clarify arbitration procedures in light of the developments of

the law in this area," Assemb. Judiciary Comm. Statement to S. 514 1 (Dec. 9,

2002), and "is nearly identical to the FAA," Arafa v. Health Express Corp., 243

N.J. 147, 167 (2020) (citing Atalese, 219 N.J. at 440). The NJAA provides "[a]n

agreement contained in a record to submit to arbitration any existing or

subsequent controversy arising between the parties to the agreement is val id,

enforceable, and irrevocable except upon a ground that exists at law or in equity

for the revocation of a contract." N.J.S.A. 2A:23B-6(a).

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 Consequently, New Jersey courts "may 'regulate [arbitration] agreements,

including those that relate to arbitration, by applying its contract-law principles

that are relevant in a given case.'" Skuse, 244 N.J. at 47 (quoting Leodori, 175

N.J. at 302). When reviewing a motion to compel arbitration, courts apply a

two-pronged inquiry: (A) whether there is a valid and enforceable agreement to

arbitrate disputes; and (B) whether the dispute falls within the scope of the

agreement. Martindale, 173 N.J. at 83, 92.

Plaintiff asserts that "there was no agreement to arbitrate" due to lack of

mutual assent. Specifically, plaintiff argues T-Mobile never procured her

signature assenting to the T&Cs, thus precluding mutual assent required for a

valid arbitration agreement. She adds the T&Cs were a contract of adhesion and

the parties' respective bargaining powers made T-Mobile's accepted methods of

assent improper.

"An agreement to arbitrate, 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 (quoting NAACP of Camden Cnty. E. v. Foulke Mgmt.

Corp., 421 N.J. Super. 404, 424 (App. Div. 2011)). In determining whether a

valid agreement to arbitrate exists, we apply "state contract-law principles."

Hojnowski, 187 N.J. at 342; accord Kernahan v. Home Warranty Admin. of Fla.,

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Inc., 236 N.J. 301, 317-18 (2019). Under those principles, "[a]n arbitration

agreement is valid only if the parties intended to arbitrate because parties are

not required 'to arbitrate when they have not agreed to do so.'" Kernahan, 236

N.J. at 317 (quoting Volt Info. Scis., Inc. v. Bd. of Ts. of Leland Stanford Junior

Univ., 489 U.S. 468, 478 (1989)).

"A contract arises from offer and acceptance, and must be sufficiently

definite that the performance to be rendered by each party can be ascertained

with reasonably certainty." Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435

(1992) (internal quotation marks omitted). Where parties agree on essential

terms and manifest some intention to be bound by those terms, an enforceable

contract is created. Ibid. Therefore, a court must determine whether a valid

agreement to arbitrate exists before it can decide whether the dispute in question

falls within the scope of the agreement. Mitsubishi Motors Corp. v. Soler

Chrysler-Plymouth, 473 U.S. 614, 626 (1985); Martindale, 173 N.J. at 92.

Thus, the first inquiry is whether the parties actually and knowingly

agreed to arbitrate their dispute. Ibid.; see also Atalese, 219 N.J. at 442. This

inquiry begins with the language of the arbitration clause. See Atalese, 219 N.J.

at 443. To be enforceable, an arbitration agreement must be clear in stating that

the parties are agreeing to arbitrate and give up the right to pursue a claim in

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court. Flanzman v. Jenny Craig Inc., 244 N.J. 119, 137 (2020) (citing Atalese,

219 N.J. at 447).

As our Court explained in Atalese:

Mutual assent requires that the parties have an
understanding of the terms to which they agreed. An
effective waiver requires a party to have full knowledge
of his [or her] legal rights and intent to surrender those
rights. By its very nature, an agreement to arbitrate
involves a waiver of a party's right to have [his or] her
claims and defenses litigated in court. But 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.

....

No particular form of words is necessary to
accomplish a clear and unambiguous waiver of rights.
It is worth remembering, however, that every consumer
contract in New Jersey must be written in a simple,
clear, understandable and easily readable way.
Arbitration clauses—and other contractual clauses—
will pass muster when phrased in plain language that is
understandable to the reasonable consumer.

[219 N.J. at 442-44 (internal quotation marks omitted)
(citations omitted).]

In holding the parties did not enter into an enforceable arbitration

agreement, the Court noted:

Nowhere in the arbitration clause is there any
explanation that plaintiff is waiving her right to seek

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 relief in court for a breach of her . . . rights. . . . The
provision does not explain what arbitration is, nor does
it indicate how arbitration is different from a
proceeding in a court of law. Nor is it written in plain
language that would be clear and understandable to the
average consumer that she is waiving statutory rights.
The clause here has none of the language our courts
have found satisfactory in upholding arbitration
provisions—clear and unambiguous language that the
plaintiff is waiving her right to sue or go to court to
secure relief.

[Id. at 446.]

Furthermore, in the matter under review, because the parties' agreement is

a consumer contract under N.J.S.A. 56:12-1—T-Mobile provides wireless

services to plaintiff—it must "be written in a simple, clear, understandable and

easily readable way." N.J.S.A. 56:12-2. "For any waiver-of-rights provision to

be effective, the party who gives up rights must 'have full knowledge of his [or

her] legal rights and intent to surrender those rights.'" Skuse, 244 N.J. at 48

(quoting Knorr v. Smeal, 178 N.J. 169, 177 (2003)). That is, the waiver "'must

reflect that [the party] has agreed clearly and unambiguously' to its terms."

Atalese, 219 N.J. at 443 (alteration in original) (quoting Leodori, 175 N.J. at

302).

Under the guise of Atalese, this court reached the opposite conclusion to

that of Atalese in Roman v. Bergen Logistics, LLC, 456 N.J. Super. 157 (App.

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Div. 2018). In Roman, we determined the arbitration agreement enforceable

because "the agreement made clear that the parties opted for arbitration to

resolve their disputes," plaintiff "was prohibited from filing any other lawsuits

or legal proceedings," and "expressly provided, in bold letters, that [the parties]

waived their right[s] to a trial by jury." Id. at 172-73. "The agreement also

expressly state[d] that any covered claims 'shall be resolved exclusively by final

and binding arbitration.'" Id. at 172.

We reached the same conclusion in the factually similar matter of Curtis

v. Cellco P'ship, 413 N.J. Super. 26, 41-42 (App. Div. 2010). In Curtis, the

plaintiff consumer entered into a service agreement with the defendant cellular

telephone service provider d/b/a Verizon Wireless. Id. at 30-33. The service

agreement included a conspicuously placed arbitration clause explicitly

notifying the reader in capitalized, bold letters that the parties agree to resolve

any controversy or claim arising from the agreement in binding arbitration. Ibid.

Moreover, the provision stated in the same format that each party waived their

right to trial by jury. Id. at 31.

The plaintiff ultimately sued the defendant for violating the Consumer

Fraud Act, among other things, after defendant reported plaintiff to collections

for non-payment of the outstanding balance. Id. at 30. The plaintiff argued the

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trial court's decision to grant defendant's motion to dismiss and compel

arbitration per the arbitration clause was error. Id. at 33. But we affirmed,

holding the arbitration clause enforceable because "the provisions requiring

arbitration [were] unambiguous, highlighted, and easily understood." Id. at 37.

In addition, we stated although the language did "not expressly identify

the applicability of arbitration to federal and state statutory claims," the

agreement "unmistakably inform[ed] a consumer accepting its terms for wireless

telephone service that he or she must settle 'any controversy or claim arising out

of or related to th[e] agreement' in arbitration, where 'there is no judge or jury.'"

Id. at 38 (second alteration in original).

Here, we are satisfied Judge Vena properly found T-Mobile's T&Cs

contained a valid and enforceable agreement to arbitrate disputes. Martindale,

173 N.J. at 83. Mutual assent is discernible between plaintiff and T-Mobile

because the first page of the T&Cs conspicuously and explicitly states opening

the device box will accept the T&Cs and warns the consumer about important

mandatory arbitration information. And, within the T&Cs, the arbitration clause

uses bold, capital letters, and explains in straightforward terms that by accepting

the T&Cs each party agrees to settle all disputes through binding arbitration.

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The arbitration clause continues to alert the reader that by accepting, the parties

agree to waive their right to a jury trial.

Unlike in Atalese, the language of the T-Mobile consumer contract here

is satisfactorily "'written in a simple, clear, understandable and easily readable

way'" so that "an average member of the public may . . . know—without some

explanatory comment—that arbitration is a substitute for the right to have one's

claim adjudicated in a court of law." 219 N.J. Super. at 442, 444 (quoting

N.J.S.A. 56:12-2). Like the agreements in Roman and Curtis, we are satisfied

T-Mobile expressly informed plaintiff that she was waiving her right to a trial

by jury to resolve all disputes arising from the agreement. Roman, 456 N.J.

Super. at 173-74; Curtis, 413 N.J. Super. at 37-38.

T-Mobile's agreement used plain language as mentioned and utilized bold

lettering and conspicuous placement like those in Roman and Curtis. Roman,

456 N.J. Super. at 172-73; Curtis, 413 N.J. Super. at 30-33. Therefore, we

conclude there was mutual assent here because the arbitration provision reflects

that plaintiff "clearly and unambiguously" agreed to waive her right to a jury

trial and submit to binding arbitration. Atalese, 219 N.J. at 443.

Furthermore, a party's signature is "not strictly required." Leodori, 175

N.J. at 306-07. Absent a signature, the party seeking to enforce an arbitration

A-0973-21
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agreement must provide some other explicit or unmistakable indication that a

party affirmatively agreed to and intended to adhere to the subject arbitration

clause. Id. at 305. Plaintiff claims T-Mobile imposed assent on her, but the

agreement shows otherwise. Although plaintiff did not sign the agreement, she

opened the device box and activated T-Mobile's service. These are explicitly

and unmistakably defined methods of acceptance conspicuously found on the

first page of the T&Cs. Consequently, plaintiff was clearly informed as to what

rights she was waiving and how she was waiving them.

Plaintiff's bargaining-power argument also lacks merit. As discussed in

the factually similar Curtis case, telecommunication service providers, along

with other major companies, routinely utilize arbitration agreements with their

consumers. 413 N.J. Super. at 41-42. Since T-Mobile's arbitration agreement

meets these requirements, it is therefore enforceable. E.g., ibid.

Lastly of significance, "[a]s a general rule, 'one who does not choose to

read a contract before signing it cannot later relieve himself of its burdens.'"

Skuse, 244 N.J. at 54 (alteration in original) (quoting Riverside Chiropractic

Grp. v. Mercury Ins. Co., 404 N.J. Super. 228, 238 (App. Div. 2008)). Included

in the arbitration agreement is a simply stated, conspicuous opt-out clause.

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Plaintiff admits she failed to read the T&Cs, and now cannot seek to avoid a

valid arbitration agreement. Therefore, we reject plaintiff's argument.

III.

Plaintiff also contends that her claims are beyond the scope of T-Mobile's

arbitration agreement. "Regarding the scope of the arbitration clause, '[c]ourts

have generally read the terms "arising out of" or "relating to" [in] a contract as

indicative of an "extremely broad" agreement to arbitrate any dispute relating in

any way to the contract.'" Curtis, 413 N.J. Super. at 37-38 (emphasis added)

(quoting Griffin v. Burlington Volkswagen, Inc., 411 N.J. Super. 515, 518 (App.

Div. 2010)). Such broad clauses, as the one here, "have been construed to

require arbitration of any dispute between the contracting parties that is

connected in any way with their contract." Id. at 38.

Specifically, plaintiff argues that ten of her thirteen causes of action are

beyond the scope of the arbitration agreement, including invasion of privacy,

sexual harassment, negligent hiring, theft, and violation of the New Jersey

Computer-Related Offenses Act. However, the language of the arbitration

provision here is sufficiently broad to require all claims to be arbitrated.

Martindale, 173 N.J. at 96. Indeed, all of the pleaded claims are related to the

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T&Cs, or T-Mobile's service, devices, or privacy policy. The cause of events

all stem from the service T-Mobile provided plaintiff at the retail store.

Even if T-Mobile is arguably not responsible for Patroche because he is

an employee of the third-party vendors, Portables Unlimited, Inc. and Elite One

Mobile, Inc., who operated the Montclair retail store, plaintiff asserted claims

against T-Mobile in the same action as Patroche. The arbitration clause states,

"that any claims against other parties relating to [s]ervices or [d]evices provided

or billed . . . (such as our suppliers, dealers, authorized retailers, or third [-]party

vendors)" are included "whenever you also assert claims against us in the same

proceeding." This is significant because had plaintiff not asserted any actions

against Patroche in the same action, her claims would not be subject to

arbitration. Similar to the opt-out provision discussed above, whether plaintiff

failed to read the T&Cs or consciously asserted claims against T-Mobile in the

same action as Patroche, she cannot now seek to avoid arbitration. The T&Cs

clearly and broadly state any and all claims are subject to arbitration, to which

plaintiff assented to.

We conclude the remaining arguments—to the extent we have not

addressed them—lack sufficient merit to warrant any further discussion in a

written opinion. R. 2:11-3(e)(1)(E).

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Affirmed.

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