Gibbons Law Alert

Gibbons Law Alert

Tagged: Arbitration

Supreme Court Declines to Hear Challenge to New Jersey’s Requirement of Express Waiver Language for Enforcement of Arbitration Provision in Consumer Contracts

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Posted in Class Action Defense / General Litigation

On July 6, 2015

The Supreme Court of the United States declined to review the New Jersey Supreme Court decision in U.S. Legal Services Group v. Atalese, holding that an arbitration provision in a consumer contract was not enforceable because the contract’s language waiving the consumer’s right to sue was not clear and unambiguous. The New Jersey Supreme Court’s decision, which affects the enforceability of arbitration provisions interpreted under New Jersey law, directs that such provisions must clearly notify the parties of their waiver of the right to bring a lawsuit.

New Jersey Appellate Panel Upholds Pre-Discovery Dismissal of Weak Class Action Claims

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Posted in Class Action Defense

On June 2, 2015

In Myska, et al. v. New Jersey Manufacturers Insurance Co. et al., New Jersey’s Appellate Division recently upheld a pre-discovery striking of a complaint’s class allegations and dismissal of its Consumer Fraud Act claims because the complaint, the underlying policies, and other documents referenced by the complaint showed that class treatment was not warranted and that the plaintiffs could not prevail on their Consumer Fraud Act claims.

Business Organizations Seeking Quick and Inexpensive Resolutions of Business Disputes Need to Know About Delaware’s Rapid Arbitration Act

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Posted in General Litigation

On June 1, 2015

Arbitration is supposed to achieve quick, fair, and inexpensive resolutions of business disputes. But, seemingly more often than not, arbitration fails to fulfill its promise due to expensive and time-consuming pre-hearing discovery, lengthy hearings, and spiraling judicial review of arbitral awards. The Delaware Rapid Arbitration Act, which became effective on May 4, 2015, is Delaware’s unique and cutting-edge effort to offer a new brand of arbitration designed to achieve the original promise of quick and efficient justice.

No Specific Waiver, No Arbitration: Enforceability of Arbitration Provisions in New Jersey Real Estate Contracts in Doubt Following Dispenziere v. Kushner Cos.

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Posted in Development/Redevelopment / Real Estate / Transactional Real Estate and Leasing

On January 5, 2015

Companies doing business in New Jersey and accustomed to settling contract disputes through binding arbitration should carefully review their contracts – and carefully draft all future contracts – to ensure that each arbitration provision contains clear and unambiguous language that the parties are waiving their rights to sue in court. An arbitration clause stating that all disputes will be determined through binding arbitration, but failing to contain this explicit waiver, may not be enforceable in accordance with the recent holding by the Appellate Division in Dispenziere v. Kushner Cos.

New Jersey Appellate Division Requires Arbitration Provisions to Include Specific Waiver of Right to Sue in Court

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Posted in Policies and Handbooks

On December 3, 2014

Two recent New Jersey Appellate Division decisions have serious implications for employers utilizing or contemplating arbitration provisions. In both decisions – Kelly v. Beverage Works NY Inc., decided on November 26, 2014, and Dispenziere v. Kushner Cos., decided on November 21, 2014 – the Appellate Division relied on the New Jersey Supreme Court’s September decision in Atalese v. U.S. Legal Services Group, which held that an arbitration provision was unenforceable because it lacked “clear and unambiguous language” that the party signing the agreement is waiving its right to sue in court.

NJ Businesses Should Reassess Arbitration Waiver Provisions in Consumer Contracts

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Posted in General Litigation

On October 27, 2014

Companies that do business in New Jersey should carefully review arbitration provisions in their contracts after a unanimous decision by the New Jersey Supreme Court that marks a departure from recent federal opinions. In Atalese v. U.S. Legal Services Group, the Court held that “[t]he absence of any language” in an arbitration provision that a consumer is waiving his or her “statutory right to seek relief in a court of law renders the provision unenforceable.”

Fifth Circuit Denies NLRB Petition to Rehear D.R. Horton

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Posted in Alternative Dispute Resolution

On April 21, 2014

On April 16, 2014, the Fifth Circuit Court of Appeals denied the National Labor Relations Board’s (the “Board” or “NLRB”) petition for rehearing en banc in D.R. Horton, Inc. v. NLRB, thus upholding its December 3, 2013 decision that arbitration agreements prohibiting class or collective actions claims do not violate the National Labor Relations Act (“NLRA”).

Appellate Division Rules Arbitrator Exceeds Powers by Modifying Award to Add Unaddressed Claims

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Posted in General Litigation

On April 17, 2014

In a recent unpublished opinion, the Appellate Division ruled that, although an arbitrator may modify an award to fix technical errors, he cannot include relief for claims not addressed in the original award, even if the failure to address those claims was due to an oversight by the arbitrator. In Merion Construction Management, LLC v. Kemron Environmental Services, Inc., subcontractor Kemron commenced arbitration alleging that although Kemron had substantially performed its obligations, contractor Merion had not paid its invoices. The arbitrator agreed with Kemron and awarded $873,758.56.

Eleventh Circuit Becomes Latest Court of Appeals to Enforce Agreement to Arbitrate FLSA Collective Action

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Posted in Wage and Hour

On April 1, 2014

On March 21, 2014, the United States Court of Appeals for the Eleventh Circuit joined a growing number of federal Courts of Appeals to reject arguments that class waivers contained in arbitration agreements should not be enforced in the employment context. In Walthour v. Chipio Windshield Repair LLC, the Eleventh Circuit (which covers Georgia, Florida, and Alabama) upheld a broad arbitration provision which required employees to bring all employment claims in their “individual capacity and not as a plaintiff of class member in a purported class or representative proceeding ….”

Arbitration Agreement Nullified by Employee Handbook Disclaimer According to NJ District Court

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Posted in Policies and Handbooks

On March 5, 2014

Employers often use arbitration programs with employees to elect a forum that eliminates jury trials and class actions. A New Jersey District Court recently found that the employer’s handbook containing a provision which, gives the employer the exclusive ability to change the provisions of the handbook without notice to employees, invalidated an employee’s arbitration agreement.

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