On September 23, 2014, the New Jersey Supreme Court held in Atalese v. U.S. Legal Services Group that an arbitration clause in a consumer contract is not enforceable unless it clearly indicates that the plaintiff is giving up the right to go to court. Accordingly, any company doing business in New Jersey that uses an arbitration clause in its contracts, consumer or otherwise, must make sure that the clause states in easy to read language: 1) the differences between litigation and arbitration, and 2) that the contracting party is being foreclosed from proceeding to court on any dispute arising from the contract.

The Atalese Decision

The plaintiff in Atalese contracted with U.S. Legal Services Group (USLSG) for debt adjustment services. The plaintiff filed suit in state court, alleging that USLSG violated two State consumer protection statutes, the New Jersey Consumer Fraud Act (CFA) and the Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA) by misrepresenting the scope of the services it would provide and its status as a licensed debt adjuster in New Jersey.

USLSG moved to compel arbitration, based on an arbitration clause in the parties’ agreement, which provided:

“Arbitration: In the event of any claim or dispute between Client and the USLSG related to this Agreement or related to any performance of any services related to this Agreement, the claim or dispute shall be submitted to binding arbitration upon the request of either party upon the service of that request on the other party. The parties shall agree on a single arbitrator to resolve the dispute. . . . Any decision of the arbitrator shall be final and may be entered into any judgment in any court of competent jurisdiction.”

The trial court granted USLSG’s motion to compel Plaintiff to arbitrate her dispute. Plaintiff appealed the trial court’s decision, arguing that the arbitration clause was unenforceable because it did not adequately notify plaintiff of her right to have her consumer claims tried before a jury. The New Jersey Appellate Decision affirmed the trial court’s decision, but in a unanimous decision the New Jersey Supreme Court reversed, and held that the arbitration clause was unenforceable because it “did not clearly and unambiguously signal to plaintiff that she was surrendering her right to pursue her statutory claims in court.”

The Court reasoned that arbitration is essentially a waiver of rights which, to be effective, “requires a party to have full knowledge of his legal rights and intent to surrender those rights.” The Court criticized the arbitration clause at issue for not “explain[ing] what arbitration is,” how it “is different from a proceeding in a court of law,” and for not being “written in plain language that would be clear and understandable to the average consumer.”  The Court also recognized a countervailing State legislature policy implicit in the enactment of the CFA and TCCWNA that favored consumers seeking relief though courts of law.

In reaching this decision, the Court rejected the argument that consumers are sophisticated enough to understand that agreeing to resolve disputes in binding arbitration means they are forgoing their right to have disputes resolved in court.

The Court stressed that there was no “magic language” required in order to make an arbitration clause enforceable.  Rather, the clause must use “clear and unambiguous” language, which in a “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”. However, it did provide the following broad guidance for the enforceability of consumer arbitration clauses, generally, an enforceable consumer arbitration clause must: (1) state what arbitration is, (2) explain how arbitration differs from a court proceeding, and (3) do so in language that is plain and understandable to the average consumer. The Court went on to cite the following arbitration provisions that New Jersey’s courts have previously upheld as enforceable:

  • The parties agree “to waive [the] right to a jury trial” and that “all disputes relating to [the plaintiff’s] employment . . . shall be decided by an arbitrator.”
  • “By 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.”
  • “Instead of suing in court, we each agree to settle disputes (except certain small claims) only by arbitration. The rules in arbitration are different.  There’s no judge or jury, and review is limited, but an arbitrator can award the same damages and relief, and must honor the same limitations stated in the agreement as a court would.”

Going Forward

Given the sweeping nature of Atalese, all New Jersey businesses using arbitration clauses in their agreements must rewrite these clauses in order to make sure that the they contain clear and easy to read language that:  1) explains the nature of arbitration proceedings and how they differ from judicial proceedings; and 2) expressly states the rights that are being waived or forfeited as a result of the agreement.

If you have any questions, please feel free to contact Howard A. Matalon, Esq. at 908-964-2424.

OlenderFeldman LLP

New Law Significantly Limits Viability of Certain Shareholder Derivative Suits in New Jersey

On April 2nd, New Jersey Governor Chris Christie signed bill A-3123 into law and in doing so, significantly revised the law in New Jersey regarding shareholder derivative proceedings under N.J.S.A. §14A:3-6, etseq. The stated purpose of the new law is to temper derivative lawsuits brought by shareholders against a corporation, its directors or majority shareholders and to make efforts to curb excessive and unnecessary litigation costs on New Jersey corporations.  Beyond this succinct goal, an ancillary intent of the law is to encourage corporations to continue to incorporate in New Jersey by making the state more corporate friendly.

Notable changes  include the following:

As a precondition to suit, a shareholder must make a written demand to the corporation to take suitable corrective action and allow the corporation 90 days to investigate and respond to the demand unless “irreparable injury to the corporation would result by waiting.”  This 90 day waiting period is a akin to a tort claims notice and is intended to give corporations adequate time to remedy potentially minor issues before dealing with the costs and expense of litigation.

In the event that a plaintiff challenges a company’s actions in suit after the demands made in the 90 day letter are rejected, he/she/it must allege with particularity that the decision was improper and show any rejection was in bad faith or not made by “independent directors.”   A status as a litigant does not divest a director of independence and unless the independence of the directors is challenged successfully, the plaintiff must show bad faith on the part of the entity.

The law increases the interest requirement that a plaintiff must hold an entity to avoid the posting of security against the possible award of attorney’s fees and costs. If litigant a holds less than 5% of the outstanding shares of any class or series of the corporation, unless the shares have a market value in excess of $250,000, the corporation can require the plaintiff to give security for the reasonable expenses, including attorney’s fees.  This will hopefully dissuade minority shareholders from filing suits with questionable merit.

The law requires that a plaintiff remain a shareholder throughout any initiated litigation so that it can adequately and fairly represent the corporation’s interests.  Prior to this change, the shareholder merely had to be a shareholder at the time suit was filed.

The law applies to both derivative proceedings brought on behalf of single shareholders as well as class actions.

A corporation can move for dismissal of a suit, after a good faith investigation, and assert that the derivative proceeding is not in the best interest of the corporation on the grounds that its board is independent and acted in good faith.  Such a motion will be granted unless the court finds otherwise or the shareholders rebut the corporation’s supporting facts.

The court must stay discovery until ruling on the motion to dismiss, but can order limited discovery if the plaintiff shows a lack of independence or good faith.

The court must approve any settlement or dismissal.

The court can award expenses to the plaintiff if the proceedings result in a substantial benefit to the corporation, or to the defendant if the case was commenced or maintained without reasonable diligence or reasonable cause or for an improper purpose.

For these new provisions to apply, existing corporations must amend their certificate of incorporation and explicitly adopt these provisions.

For more information about this new law and how it may impact your business please contact Olender Feldman LLP, or review our additional  business legal resources here.

 

What is the best way to protect against employee lawsuits?

We recently received an inquiry about the best ways for businesses to protect against employee lawsuits. We’ve found that most employee lawsuits occur due to low morale, unaddressed personality conflicts, disparate productivity between employees and/or failure to give effective performance reviews. Of course, it is always important to have effective, well-drafted legal documents and policies that clearly delineate employee rights and obligations from the outset, which will help your business win lawsuits . However, the easiest way to protect your business from lawsuits is by preventing them in the first place. This means ensuring a good working environment, keeping employees happy, and giving employees recourse to deal with the issues that come up in the workplace, ideally through a dedicated and effective HR representative.