JAMES C. LAWRENCE VS. SKY ZONE FRANCHISE GROUP, LLC (L-2149-19, OCEAN COUNTY AND STATEWIDE)

J
                                NOT FOR PUBLICATION WITHOUT THE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-3092-19

JAMES C. LAWRENCE,

          Plaintiff-Respondent/
          Cross-Appellant,

v.

SKY ZONE, LLC, SKY ZONE
FRANCHISE GROUP, LLC,
CIRCUSTRIX HOLDINGS, LLC,
BUCKINGHAM INVESTMENT
GROUP, INC. d/b/a SKY ZONE
LAKEWOOD, and RPSZ
CONSTRUCTION, LLC,

          Defendants-Appellants/
          Cross-Respondents,

and

FUN SPOT MANUFACTURING,
LLC, INTERNATIONAL
ASSOCIATION OF TRAMPOLINE
PARKS, INC. (Discovery Only),
and AMERICAN SOCIETY FOR
TESTING AND MATERIALS d/b/a
ASTM INTERNATIONAL,
(Discovery Only),
      Defendants.

            Submitted March 15, 2021 – Decided March 30, 2021

            Before Judges Fasciale and Mayer.

            On appeal from the Superior Court of New Jersey, Law
            Division, Ocean County, Docket No. L-2149-19.

            Chazen     &     Chazen,    LLC,  attorneys  for
            respondent/cross-appellant (David K. Chazen, of
            counsel and on the briefs).

            Wood Smith Henning & Berman, LLP, attorneys for
            appellants/cross-respondents (Kelly A. Waters, of
            counsel and on the briefs; Samuel G. John and Carolynn
            A. Mulder, on the briefs).

            Cohen, Placitella & Roth, P.C. attorneys for amicus
            curie New Jersey Association for Justice (Jared M.
            Placitella and Christopher M. Placitella, of counsel and
            on the briefs).

PER CURIAM

      Sky Zone, LLC, Sky Zone Franchise Group, LLC, Circustrix Holdings,

LLC, Buckingham Investment Group, Inc. (d/b/a Sky Zone Lakewood), and

RPSZ Construction, LLC (collectively defendants), appeal from a March 30,

2020 order denying reconsideration of a December 20, 2019 order denying their

motion to dismiss plaintiff's first amended complaint and compel arbitration.

The judge altered his earlier finding that the unavailability of JAMS rendered

the agreement unenforceable but concluded that the agreement still lacked

                                                                        A-3092-19
                                       2
mutual assent because it did not adequately explain what replaced a jury.

Defendants generally maintain that the law only requires that plaintiff

understand he waived a jury.

       Plaintiff cross-appeals from the March 30, 2020 order contending that the

judge erroneously changed his mind about JAMS. Plaintiff primarily maintains

that the agreement is unenforceable because, despite the designation that the

arbitration would be administered by JAMS utilizing its rules, JAMS itself is an

unavailable arbitration forum in New Jersey. Thus, plaintiff argues, there was

no meeting of the minds. The New Jersey Association for Justice (NJAJ),

participating as amici, also argues that there was no meeting of the minds.

       On these motions, the parties and the judge focused on whether the

agreement adequately explained the ramifications of a jury waiver, particularly

addressing whether it sufficiently referenced the rights that replaced the jury.

That made sense because, at the time, they attempted to apply our decision in

Flanzman.1 But since the issuance of the orders, the Supreme Court reversed




1
    Flanzman v. Jenny Craig, Inc., 

456 N.J. Super. 613

(App. Div. 2018).


                                                                           A-3092-19
                                        3
our opinion,2 which directly impacts our adjudication of the issues on appeal. 3

The parties did not make arbitrating the dispute utilizing JAMS and its rules an

integral term to the agreement, which contained a severability clause indicating

that if one term is unenforceable, the rest of the agreement will not be affected.

The automatic application of the New Jersey Arbitration Act (NJAA)4 supplies

the missing terms about the arbitration process, as does the Federal Arbitration

Act (FAA),5 which the agreement generally references.6 We therefore reverse.

                                        I.

       Before entering the indoor trampoline facility, plaintiff was required to

execute a six-page release agreement entitled "Participation Agreement, Release

and Assumption of Risk" (Release Agreement).              The Release Agreement

generally required him to release the facility from liability, assume the risk of

using the trampolines and other equipment, and waive certain rights, such as his


2
    Flanzman v. Jenny Craig, Inc., 

244 N.J. 119

(2020).
3
   The parties and amici submitted supplemental briefs since the Court rendered
its decision in Flanzman.
4
    New Jersey Arbitration Act, N.J.S.A. 2A:23B-1 to -36.
5
    Federal Arbitration Act, 9 U.S.C. §§1-16.
6
  See e.g., 9 U.S.C. § 5 (providing for the appointment of an arbitrator)

, id. § 7
(addressing

witnesses, documents, fees, and the power to issue a summons).
                                                                            A-3092-19
                                        4
right to a jury trial by agreeing to arbitrate covered disputes. The Release

Agreement reads as follows:

           ARBITRATION OF DISPUTES; TIME LIMIT TO
           BRING CLAIM

           I understand that by agreeing to arbitrate any dispute as
           set forth in this section, I am waiving my right, and the
           right(s) of the minor child(ren) above, to maintain a
           lawsuit against SZ and the other Releasees for any and
           all claims covered by this Agreement. By agreeing to
           arbitrate, I understand that I will NOT have the right to
           have my claim determined by a jury, and the minor
           child(ren) above will NOT have the right to have
           claim(s) determined by a jury. Reciprocally, SZ and the
           other Releasees waive their right to maintain a lawsuit
           against me and the minor child(ren) above for any and
           all claims covered by this Agreement, and they will not
           have the right to have their claim(s) determined by a
           jury.          ANY       DISPUTE,       CLAIM        OR
           CONTROVERSY ARISING OUT OF OR
           RELATING TO MY OR THE CHILD'S ACCESS
           TO AND/OR USE OF THE SKY ZONE PREMISES
           AND/OR ITS EQUIPMENT, INCLUDING THE
           DETERMINATION OF THE SCOPE OR
           APPLICABILITY OF THIS AGREEMENT TO
           ARBITRATE, SHALL BE BROUGHT WITHIN
           ONE YEAR OF ITS ACCRUAL (i.e., the date of the
           alleged injury) FOR AN ADULT AND WITHIN
           THE APPLICABLE STATUTE OF LIMITATIONS
           FOR A MINOR AND BE DETERMINED BY
           ARBITRATION IN THE COUNTY OF THE SKY
           ZONE FACILITY, NEW JERSEY, BEFORE ONE
           ARBITRATOR. THE ARBITRATION SHALL BE
           ADMINISTERED BY JAMS PURSUANT TO ITS
           RULE 16.1 EXPEDITED ARBITRATION RULES
           AND PROCEDURES. JUDGMENT ON THE

                                                                       A-3092-19
                                      5
            AWARD MAY BE ENTERED IN ANY COURT
            HAVING JURISDICTION.               THIS CLAUSE
            SHALL NOT PRECLUDE PARTIES FROM
            SEEKING PROVISIONAL REMEDIES IN AID OF
            ARBITRATION          FROM       A     COURT       OF
            APPROPRIATE JURISDICTION. This Agreement
            shall be governed by, construed and interpreted in
            accordance with the laws of the State of New Jersey,
            without regard to choice of law principles.
            Notwithstanding the provision with respect to the
            applicable substantive law, any arbitration conducted
            pursuant to the terms of this Agreement shall be
            governed by the [FAA] (9 U.S.C., Sec. 1-16). I
            understand and acknowledge that the JAMS Arbitration
            Rules to which I agree are available online for my
            review at jamsadr.com, and include JAMS
            Comprehensive Arbitration Rules & Procedures; Rule
            16.1 Expedited Procedures; and, Policy On Consumer
            Minimum Standards of Procedural Fairness.

            [Emphasis in original.]

It is undisputed that JAMS could not administer the arbitration proceeding.

Consequently, that part of the agreement was unenforceable. The severance

provision provides that

            [i]f any term or provision of this Release shall be
            illegal, unenforceable, or in conflict with any law
            governing this Release[,] the validity of the remaining
            portions shall not be affected thereby.

In entering the orders under review, and guided by our Flanzman decision, the

judge concluded the agreement was unenforceable for lack of mutual assent

because the parties did not fully understand what rights replaced the jury .

                                                                               A-3092-19
                                        6
                                     II.

     On appeal, defendants raise the following arguments, which we have re -

numbered, for our consideration:

           [POINT I]

           THE [MOTION JUDGE] ERRED IN HOLDING
           THAT      THE ARBITRATION CLAUSE   IS
           UNENFORCEABLE BECAUSE IT DOES NOT
           EXPLAIN OR SUMMARIZE THE ARBITRATION
           RULES.[7]

           [POINT II]

           THE [MOTION JUDGE] CORRECTLY HELD THAT
           THE UNAVILABILITY OF JAMS IS IMMATERIAL
           TO    THE  ENFORECEABILITY     OF   THE
           ARBITRATION PROVISION.

                 A. FEDERAL LAW PROVIDES FOR
                 COURT APPOINTMENT OF AN
                 ARBITRATOR AND PREEMPTS ANY
                 CONTRARY STATE LAW.

                 B. NEW JERSEY LAW PROVIDES FOR
                 COURT APPOINTMENT OF AN
                 ARBITRATOR.

                 C. THE ARBITRATION AGREEMENT
                 AT    ISSUE   HERE   REQUIRES


7
  We need not reach this contention because JAMS itself was unavailable to
administer the arbitration. Whether plaintiff had the opportunity to read the
JAMS rules, therefore, is academic: JAMS could not arbitrate the dispute
regardless.
                                                                       A-3092-19
                                     7
     ARBITRATION EVEN IF JAMS IS
     UNAVAILABLE.

[POINT III]

THE [MOTION JUDGE] ERRED IN HOLDING
THAT ARBITRATION AGREEMENTS MUST
SUMMARIZE OR PROVIDE A COPY OF THE
ARBITRATION RULES.

[POINT IV]

PLAINTIFF'S SUBSTANTIVE OBJECTIONS TO
THE JAMS RULES LACK MERIT AND ARE
IMMATERIAL TO THE ENFORCEABILITY OF
THE ARBITRATION CLAUSE. (Not Ruled on
Below).

     A. PARTIES MAY AGREE TO LIMIT
     DISCOVERY      AND     OTHER
     PROCEDURES       IN     THEIR
     ARBITRATION AGREEMENT.

     B. LIKE THE NEW JERSEY COURT
     RULES, THE JAMS RULES CONTAIN
     APPROPRIATE SAFEGUARDS AND
     FLEXIBILITY.

     C. EVEN IF PLAINTIFF'S OBJECTIONS
     TO THE JAMS RULES HAD MERIT,
     THEY ARE IMMATERIAL BECAUSE
     ARBITRATION      CLAUSES      ARE
     SEVERABLE AS A MATTER OF LAW.

[POINT V]

THE [MOTION JUDGE] CORRECTLY HELD THAT
THE UNAVAILABILITY OF JAMS DOES NOT

                                         A-3092-19
                     8
AFFECT THE VALIDITY OF THE ARBITRATION
CLAUSE BECAUSE JAMS IS NOT INTEGRAL TO
THE AGREEMENT TO ARBITRATE.

     A. NEW JERSEY LAW REQUIRES
     COURT-APPOINTMENT   OF   AN
     ARBITRATOR EVEN THOUGH JAMS
     IS UNAVAILABLE.

     B. EVEN IF PLAINTIFF'S POSITION
     REGARDING NEW JERSEY LAW
     WERE CORRECT, FEDERAL LAW
     WOULD PREEMPT NEW JERSEY LAW
     AND      REQUIRES       COURT-
     APPOINTMENT OF AN ARBITRATOR.

[POINT VI]

PLAINTIFF'S RELIANCE ON UNREPORTED
DECISIONS    IS    UNAVAILING  AND
PROCEDURALLY IMPROPER.

[POINT VII]

PLAINTIFF'S ARGUMENT REGARDING THE
TRUTH-IN-CONSUMER        CONTRACTS,
WARRANTY, AND NOTICE ACT IS WITHOUT
MERIT.

[POINT VIII]

PLAINTIFF'S ARGUMENT REGARDING NON-
SIGNATORIES IS WITHOUT MERIT.

[POINT IX]




                                         A-3092-19
                    9
               THE ALLEGED FAILURE TO EXPLAIN THE JAMS
               RULES HAS NO EFFECT ON THE ARBITRATION
               AGREEMENT'S VALIDITY.

               [POINT X]

               THE UNAVAILABILITY OF JAMS HAS NO
               EFFECT ON THE ARBITRATION AGREEMENT'S
               VALIDITY.

               [POINT XI]

               NJAJ IMPROPERLY RELIES ON IMMATERIAL
               AND UNSUPPORTED ARGUMENTS THAT WERE
               NOT RAISED BELOW.

               [PONT XII]

               IN SKUSE,[8] THE NEW JERSEY SUPREME COURT
               REAFFIRMED THE FAA'S EQUAL-FOOTING
               PRINCIPLE AND APPLIED GENERAL CONTRACT
               LAW.

               [POINT VIII]

               IN SKUSE, THE NEW JERSEY SUPREME COURT
               HELD THAT PLAINTIFFS BEAR THE BURDEN OF
               OBTAINING AND REVIEWING AVAILABLE
               INFORMATION.

        On his cross-appeal, plaintiff raises the following contentions, which we

have re-numbered:

               [POINT I]


8
    Skuse v. Pfizer, Inc., 

244 N.J. 30

(2020).
                                                                           A-3092-19
                                         10
THE [MOTION JUDGE] CORRECTLY HELD THE
ARBITRATION      PROVISION    TO     BE
UNENFORCEABLE BECAUSE THE JAMS RULES
WERE "UNACCESSIBLE[,]" THE ARBITRATION
PROVISION "DOES NOT EXPLAIN THE RULES[,]"
AND "BECAUSE IT LACKS A MEETING OF THE
MINDS.["]

[POINT II]

THE [MOTION JUDGE] HELD CORRECTLY THAT
THE DESIGNATION OF JAMS AS THE
EXCLUSIVE ARBITRAL FORUM AND ITS
UNAVAILABILITY MEANT THAT THERE WAS
NO MEETING OF THE MINDS BETWEEN THE
PARTIES AND THE ARBITRATION CLAUSE IS
UNENFORCEABLE[;] THE [MOTION JUDGE]
ERRED UPON RECONSIDERATION IN HOLDING
THAT THE UNAVAILABILITY OF JAMS WAS
NOT SO INTEGRAL TO THE ARBITRATION
CLAUSE TO RENDER IT UNENFORCEABLE.

[POINT III]

DIVERGENT COURT OPINIONS HAVE LEFT THE
VALIDITY OF THE SKY ZONE ARBITRATION
CLAUSE UNSETTLED.

[POINT VI]

DISMISSAL  OF  THE   FIRST   AMENDED
COMPLAINT WOULD BE IMPROPER BECAUSE
NON-SIGNATORIES TO THE AGREEMENT
CANNOT BE COMPELLED TO ARBITRATE.


[POINT V]


                                            A-3092-19
                   11
           THE SKY ZONE ARBITRATION AGREEMENT
           CONTAINS    MATERIAL     DISCREPANCIES
           ESSENTIAL TO A CONSUMER WAIVER-OF-
           RIGHTS NEGATING A MEETING OF THE MINDS.

           [POINT VI]

           SKY ZONE CLAIMS SUBJECT TO ARBITRATION
           UNDER THE JAMS RULE 16.1 EXPEDITED
           PROCEDURES AND RULES ARE AN EXAMPLE
           OF   INDUSTRY-WIDE    CONTRACTS     OF
                     [9]
           ADHESION.

           [POINT VII]

           FLANZMAN HOLDS THAT THE NJAA PROVIDES
           A DEFAULT PROCEDURE WHEN PARTIES OMIT
           THE TERMS FOR SELECTION OF THE
           ARBITRATOR     AND    THE  ARBITRATION
           PROCESS—BUT DISTINGUISHES THE HOLDING
           IN KLEINE WHERE THE PARTIES AGREE TO A
           SPECIFIC ARBITRATION ORGANIZATION AS AN
           ESSENTIAL    TERM    AND   RENDER     IT
           UNENFORCEABLE WHEN THE ARBITRATION
           ORGANIZATION WAS UNAVAILABLE AT THE
           TIME THE CONTRACT WAS EXECUTED—AS
           ESSENTIAL TO A CONSUMER WAIVER-OF-
           RIGHTS AND NEGATING A MEETING OF THE
           MINDS.

                 A. SKY ZONE SELECTED JAMS AS
                 THE  EXCLUSIVE   ARBITRATION
                 ORGANIZATION AND KNEW OR


9
   There is insufficient information on this record for us to adjudicate this
contention, which was not explicitly addressed by the judge, either by way of
findings of fact or conclusions of law.
                                                                       A-3092-19
                                    12
           SHOULD HAVE KNOWN JAMS WAS
           UNAVAILABLE.

           B. THE SKY ZONE ARBITRATION
           CLAUSE VIOLATES THE PLAIN
           LANGUAGE ACT AND THE TRUTH-
           IN-CONSUMER       CONTRACT,
           WARRANTY AND NOTICE ACT.

           C. SKY ZONE'S SELECTION OF JAMS
           WAS    AN   ESSENTIAL/INTEGRAL
           CONTRACT TERM.

NJAJ, as amici, raise the following points, which we have re-numbered:

     [POINT I]

     THERE WAS NO ASSENT BY [PLAINTIFF] TO
     WAIVE HIS RIGHT TO A JURY TRIAL SO THE
     [MOTION JUDGE] CORRECTLY HELD THAT HE
     CANNOT BE COMPELLED TO ARBITRATION.

           A. THE ARBITRATION AGREEMENT
           HERE FAILS TO EXPLAIN TO THE
           CONSUMER THE RAMIFICATIONS OF
           SURRENDERING                HIS
           CONSTITUTIONAL RIGHT TO A JURY
           TRIAL.

           B. THE ARBITRATION AGREEMENT
           FAILED TO PROVIDE AND EXPLAIN
           THE JAMS EXPEDITED ARBITRATION
           RULES, AND ITS MERE REFERENCE
           TO      THOSE      PROCEDURES
           PREVENTED ANY MEETING OF THE
           MINDS.



                                                                 A-3092-19
                              13
     C. THE ARBITRATION AGREEMENT
     IS CONTRADICTORY, CONFUSING
     AND VIOLATES NEW JERSEY'S PLAIN
     LANGUAGE ACT.

[POINT II]

THE [MOTION JUDGE] ERRED IN [HIS] DICTUM
STATEMENT THAT [HE] COULD APPOINT AN
ARBITRAL FORUM NOT CONTEMPLATED BY
THE PARTIES BECAUSE THAT WOULD
INAPPROPRIATELY RE-WRITE THE PARTIES'
AGREEMENT.

[POINT III]

THE [MOTION JUDGE] CORRECTLY HELD THAT
[PLAINTIFF] CANNOT BE COMPELLED TO
ARBITRATION    BECAUSE   [SKY   ZONE'S]
AGREEMENT FAILS TO CLEARLY AND
UNMISTAKABLY EXPLAIN THAT HE WAS
SURRENDERING HIS RIGHT TO A JURY TRIAL
AND THE RAMIFICATIONS FOR DOING SO.

[POINT IV]

THE [MOTION JUDGE] CORRECTLY HELD THAT
[PLAINTIFF] CANNOT BE COMPELLED TO
ARBITRATE BECAUSE THE CONFUSING AND
CONTRADICTORY LANGUAGE OF [SKY ZONE'S]
AGREEMENT FAILED TO ASSURE HIS MUTUAL
ASSENT.

[POINT V]

FLANZMAN REQUIRES THAT ARBITRATION
CANNOT BE COMPELLED HERE BECAUSE SKY
ZONE LLC'S SELECTED ARBITRAL FORUM AND

                                           A-3092-19
                   14
            PROCESS WAS NEVER AVAILABLE TO THE
            PARTIES AND THUS THERE WAS NO MUTUAL
            ASSENT TO ARBITRATE.

                                    III.

      We begin by addressing the judge's conclusion that the agreement was

unenforceable for lack of mutual assent. The judge undertook a careful analysis

of whether there existed a meeting of the minds; specifically, whether the parties

understood what rights replaced the jury.

      The judge reached his conclusion by relying on our appellate opinion in

Flanzman, where we quoted both Atalese v. U.S. Legal Serv. Group, L.P., 

219

N.J. 430

, 443-45 (2014) and NAACP of Camden Cty. E. v. Foulke Mgmt., 

421

N.J. Super. 404

, 425 (App. Div. 2011), explaining that " [judges] take particular

care in assuring the knowing assent of both parties to arbitrate, and a clear

mutual understanding of the ramifications of that assent." Flanzman, 456 N.J.

Super at 621. And like us, the judge cited Kleine v. Emeritus at Emerson, 

445

N.J. Super. 545

, 552-53 (App. Div. 2016), where this court determined that to

clearly understand the ramifications of waiving a jury, a party "must be able to

understand—from clear and unambiguous language—both the rights that have

been waived and the rights that have taken their place." Flanzman, 456 N.J.

Super. at 622 (citing 

Kleine, 445 N.J. Super. at 552-53

). That is because the


                                                                            A-3092-19
                                       15
Supreme Court explained that the word "arbitration" is not self-defining. See

Kernahan v. Home Warranty Admin., 

236 N.J. 308

, 332-33 (2019); Morgan v.

Sanford Brown Inst., 

225 N.J. 289

, 308 (2016); 

Atalese, 219 N.J. at 442

. We

understood "ramifications of the assent" to mean not just the rights parties gave

up but also the rights the parties received in their place. The Supreme Court

disagreed with our understanding and clarified that "ramifications" referred only

to waiving a jury, rather than also understanding what replaced the jury.

      Unlike Flanzman, where the parties omitted any reference to what

replaced the jury, the parties' agreement here incorporated that information.

Even if they had not, the Court has since explained a general reference to the

arbitration process governing the dispute is not a material term; failure to

reference it does not impact enforceability; and instead, the NJAA will fill in

the missing information. 

Flanzman, 244 N.J. at 136-39

. The Court agreed—to

add clarity—it would be advantageous, sound, and practical for parties to

"designate in their agreement an arbitral organization" and "an alternative

method of choosing an organization" should the parties' primary choice be

unavailable.

Id. at 140.

By doing so, the parties would then understand what to

expect during the arbitration. But the Court concluded the information was not

essential to the arbitration agreement.


                                                                            A-3092-19
                                          16
       The judge determined that the agreement was unenforceable for lack of

mutual assent because what the parties had contracted for—JAMS arbitrating

the dispute—could not occur. He found, therefore, that they did not reach a

meeting of the minds about what replaced the jury. Applying the Court's

decision in Flanzman, and Arafa v. Health Express Corp., 

243 N.J. 147

(2020),10

we reach a different conclusion.

                                       IV.

       We conclude the agreement meets the requirements established in Atalese,

and therefore there exists mutual assent to arbitrate.      The parties clearly

understood the ramifications of such assent because the agreement itself

explains that the parties have waived a jury. The unavailability of JAMS is not

fatal to the enforceability of the agreement, especially because the agreement

contains a severability clause. And even without the severability clause, under

Flanzman and Arafa, the NJAA will fill in the arbitration process details.

       As evidence that the parties did not make JAMS integral to the arbitration

process, we turn to the language of the agreement that identified the NJAA and

FAA.



10
  The orders under review were issued before the Court rendered its opinion in
Arafa.
                                                                             A-3092-19
                                       17
            This Agreement shall be governed by, construed and
            interpreted in accordance with the laws of the State of
            New Jersey, without regard to choice of law principles.
            Notwithstanding the provision with respect to the
            applicable substantive law, any arbitration conducted
            pursuant to the terms of this Agreement shall be
            governed by the [FAA] (9 U.S.C., Sec. 1-16).

The parties' agreement did not make arbitration solely dependent on the

availability of JAMS. Instead, it included a severability clause and specifically

identified the NJAA and FAA.

      In 2002, our Legislature enacted the NJAA to advance arbitration as an

alternative to litigation and to clarify arbitration procedures. 

Flanzman, 214 N.J.

at 133-34

. The NJAA is a modified version of the Uniform Act, 11 which itself

is a default statute, meaning that statutory provisions can be varied or waived

by contract. Indeed, the NJAA is a modified default statute, as reflected by its

legislative history. See Assemb. Judiciary Comm. Statement to S. 514 1 (stating

that "[t]his bill is a modified version of the Uniform Arbitration Act of 2000

. . . as proposed by the National Conference of Commissioners on Uniform State

Laws").



11
   The Revised Uniform Arbitration Act, Rev. Unif. Arb. Act §§ 1-31 (2000),
updated and modified the Uniform Arbitration Act, Unif. Arb. Act §§ 1 -25
(1955).


                                                                             A-3092-19
                                       18
        In Flanzman, the automatic application of the NJAA permitted the

appointment of an arbitrator, 

Flanzman, 224 N.J. at 141

(citing N.J.S.A.

2A:23B-11(a)),12 and provided the general framework of the arbitration process

,

ibid. (citing N.J.S.A. 2A:23B-15).

As to these two points, the same is true here.

Flanzman is not the first instance where the Supreme Court utilized the NJAA

to fill in missing terms in arbitration agreements. In July of last year, the Court

decided Arafa, a case in which the parties identified in their agreement the FAA

as the governing law, then later discovered that the FAA could not 

control. 243

N.J. at 166

(noting that "it is undisputed that Section 1 [of the FAA] applies" to

Arafa, which exempts employees and independent contractors involved in

interstate commerce from the FAA). The Court applied the NJAA and filled in

the missing terms addressing the arbitration process.

Id. at 167.

In Arafa, the

Court concluded that the NJAA applies automatically, as it does here.

        To summarize: the arbitration agreement satisfies Atalese; the provision

that JAMS arbitrate the dispute is unenforceable because JAMS is not available;

the severability clause renders the rest of the agreement enforceable; and the

NJAA will fill in the missing term as to the arbitration process. We therefore




12
     The FAA has a similar provision. See 9 U.S.C. § 5.
                                                                             A-3092-19
                                       19
reverse and remand, directing the parties to the arbitration agreement proceed to

arbitration.

      Reversed and remanded. We do not retain jurisdiction.




                                                                           A-3092-19
                                      20

Add comment

By

Recent Posts

Recent Comments