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15 Rutgers Bus. L.J. 1 (2019-2020)

handle is hein.journals/rutgblaj15 and id is 1 raw text is: PRACTICAL BUSINESS IMPACTS: SW FT NEW JERSEY..., 15 Rutgers Bus. L.. 15 Rutgers Bus. L. Rev. 65 Rutgers Business Law Review Winter, 2019 Note Richard T. 'Rick' Madurski Copyright C 2019 by Rutgers Business Law Review; Richard T 'Rick' Madurski PRACTICAL BUSINESS IMPACTS: SWIFT NEW JERSEY COURT GUIDANCE ON HOW NOT TO COMPEL ARBITRATION - CONTRACT BASED DEFENSES AND ARBITRATION AGREEMENT PITFALLS I. Introduction Federal and state jurisprudence, news media, legalblogs, and watercooler conversations have been gripped by a prominent topic: the scope, processes, and enforceability of arbitration clauses. So too has employer concern with how to implement mandatory arbitration as a contract provision. 2 Human resource managers, executive committees, and especially lawyers in New Jersey have taken notice of the bright future under the Federal Arbitration Act (FAA) and a federal preference for arbitration. But New Jersey is not as agreeable. Section § 2 of the FAA is a stronghold for dismissing motions to compel arbitration through unenforceable, or otherwise deficient, contract provisions. New Jersey courts weigh the balance of power in what are often contracts of adhesion, and at the outset of their analysis, present a significant threshold that businesses have to overcome. 5 Indeed, both the Supreme Court of the United States and New Jersey courts have created various limitations on arbitration provisions. 6 While sophisticated legal teams are able to manage these impediments to arbitrating, reliance on form contracts and boilerplate language hinder small businesses' ability to draft compliant provisions, and those without counsel may struggle to compel arbitration. Even those *66 who stay current on the nuances of arbitration can fall behind on the impacts of each new case or statutory reference used by the courts, affecting the validity of a binding arbitration agreement. 8 Some unenforceable agreements struggle with procedural deficits, presenting the waiver of an individual's constitutional and statutory right to pursue a judicial resolution to their claims in the form of an obscurely labeled checkbox within a training module. 9 Others have compelled courts to perform judicial surgery on the agreements for compliance with local statutory protections. 10 Not insignificant amounts of attention have been paid to how arbitration affects employees and consumers.1 Surely, an individual plaintiff lacking legal savvy will be surprised when they cannot file a claim for an injury or breach of contract. 12 The public interest therefore remains a serious consideration when courts are tasked with compelling arbitration. 13

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