236 A.3d 939
N.J.2020Background
- Pfizer emailed employees a five-page Mutual Arbitration and Class Waiver Agreement (May 2016) stating that continued employment for 60 days after receipt would be deemed assent and require arbitration of covered employment claims.
- Pfizer also sent a two-part communication: an FAQs link explaining the waiver and a four-slide online module that invited employees to "CLICK HERE to acknowledge" after reviewing the Agreement; module completion for Skuse was recorded on June 9, 2016.
- Skuse continued working, was terminated in August 2017 over a religious objection to a required yellow fever vaccination, and sued under New Jersey’s Law Against Discrimination (LAD).
- Pfizer moved to dismiss and compel arbitration; the trial court granted the motion. The Appellate Division reversed, citing (a) e-mail delivery amid inbox overload, (b) use of a “training module,” and (c) the module’s request to “acknowledge” rather than “agree.”
- The New Jersey Supreme Court reversed the Appellate Division: it held Pfizer’s communications satisfied New Jersey’s waiver-of-rights standard (clear and unmistakable notice), e-mail delivery did not invalidate the Agreement, and clicking to “acknowledge” was appropriate in context (though calling the material "training" was a misnomer).
Issues
| Issue | Plaintiff's Argument (Skuse) | Defendant's Argument (Pfizer) | Held |
|---|---|---|---|
| Whether an employee’s continued employment + digital "acknowledgement" effected mutual assent to arbitrate | Skuse: she only acknowledged receipt, didn’t agree; continued employment cannot substitute for explicit assent | Pfizer: module click + clear notice that continued employment equals assent establishes consent | Court: Held Pfizer’s materials clearly and unmistakably informed employees that continued employment for 60 days constituted assent; arbitration enforceable |
| Whether the waiver-of-rights language satisfied New Jersey’s clear-and-unmistakable standard | Skuse: language and presentation didn’t show knowing waiver of court/jury rights | Pfizer: Agreement and FAQs plainly stated waiver of court/jury and described arbitration | Court: Held language (bold, caps, FAQs, module) met Atalese/Kernahan clarity requirements; rights waived were adequately explained |
| Whether e-mail/module delivery (vs. hard copy/signature) invalidates formation | Skuse: delivery by e-mail and inbox overload risked non-review and undermines assent | Pfizer: electronic delivery and click-confirmation are valid methods (clickwrap) and employees were required to complete module | Court: Held electronic delivery and click-module do not invalidate the Agreement; failure to read does not avoid signed/acknowledged terms |
| Whether labeling as "training" or using the word "acknowledge" (vs. "agree") defeated clear assent | Skuse: calling it training and asking to "acknowledge" receipt made assent ambiguous | Pfizer: context made the meaning clear; "acknowledge" tied to obligation to agree or be deemed to agree by continued employment | Court: Calling it "training" was a misnomer but not fatal; "acknowledge" was acceptable in context because surrounding language clearly tied it to assent and the 60-day deeming provision |
Key Cases Cited
- Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430 (N.J. 2014) (requires waiver-of-rights language to be clear and unambiguous and to explain that plaintiff gives up the right to sue in court)
- Leodori v. CIGNA Corp., 175 N.J. 293 (N.J. 2003) (unsigned required- signature form defeats enforcement; explicit proof of assent required)
- Kernahan v. Home Warranty Adm’r of Fla., Inc., 236 N.J. 301 (N.J. 2019) (confusing or contradictory ADR language defeats mutual assent)
- Jaworski v. Ernst & Young U.S. LLP, 441 N.J. Super. 464 (App. Div. 2015) (continued employment after effective date can constitute assent where policy so states)
- Martindale v. Sandvik, Inc., 173 N.J. 76 (N.J. 2002) (arbitration agreements governed by general contract principles and may be enforced when there is mutual assent)
- Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358 (N.J. 1960) (industry-wide adhesion clauses may be invalidated on public-policy grounds)
- AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (U.S. 2011) (FAA preempts state rules that single out arbitration agreements for stricter treatment)
- Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S. Ct. 1421 (U.S. 2017) (arbitration agreements are placed on equal footing with other contracts under the FAA)