Your Class Action Lawyer in New Jersey

James Barry, Esq. of DeNittis Osefchen Prince argued in the New Jersey Supreme Court yesterday in the case captioned Fazio v. Altice. The case raised the issue of whether a forced arbitration clause could be enforced when the terms of the contract were never shown to a consumer before he completed his transaction.

It is undisputed that the plaintiff, who purchased a cellular phone plan in Defendant’s retail store on November 20, 2019 and was never shown a copy of the Defendant’s Customer Service agreement before completing his purchase. Instead, a web address was included in small font on the receipt handed the Plaintiff when he completed his transaction which purportedly would have included the Customer Service Agreement had Plaintiff visited the site. Defendant asserted that they would have sent a copy of the Customer Service Agreement to the Plaintiff as a matter of course after his transaction. Plaintiff denied receiving an email with the Customer Service Agreement. Included in the Customer Service Agreement was a forced arbitration clause, providing that under the agreement consumers must arbitrate all their contract, statutory, tort, fraud or misrepresentation claims against Altice and waived their right to bring those claims in court before a jury of their peers. Nearly two years after his transaction,the Plaintiff alleged he was discriminated against in Defendant’s store when he went in for a routine purchase. He filed a claim under the New Jersey Law Against Discrimination against the Defendant. Defendant asserted he gave up his right to sue in court under the Customer Service Agreement and asked the trial court to compel arbitration. The trial court granted Defendant’s motion to compel arbitration. The Plaintiff appealed and the Appellate Division again found that Plaintiff should arbitrate his claims.

The Supreme Court granted certification to hear argument about whether arbitration should be compelled in the case. James Barry appeared as amicus curiae, or a friend of the court, and argued that under New Jersey law, no agreement to arbitrate could be formed under the facts presented. He argued that in order for a contract to be formed consumers must be shown a copy of the terms prior to completing a transaction, and to the extent that a business wanted to add additional terms through an email after the transaction, the law requires some manifestation of assent on the part of a Plaintiff, whether through a signature or some other affirmative act to show they had received and agreed to the terms added to the agreement.

James also argued that under New Jersey law, Defendant had provided insufficient evidence of its business practices to prove that the Customer Service Agreement had been sent to Plaintiff. This is the sixth time that James has handled a case before the Supreme Court and the fourth time that he has argued before the Court. Other cases James has handled before the Court are:

• Morgan v. Sanford Brown Institute, 225 NJ 289 (2016)(argued): Addressing the question about whether an agreement to delegate the question of whether a dispute could be arbitrated to an arbitrator had been formed;
• Roach v. BM Motoring, LLC, 228 N.J. 163 (2017)(on the brief): Addressing whether Defendant’s failure to pay arbitration fees constituted a material breach of the agreement and rendered the arbitration agreement unenforceable.
• Dugan v. TGI Fridays, 231 N.J. 24 (2017)(on the brief): Addressing the propriety of class certification in a consumer case.
• Spade v. Select Comfort, 232 N.J. 504 (2018)(argued): Addressing whether the New Jersey Truth in Consumer Contract Warranty and Notice Act applied to regulatory violations and the definition of “aggrieved consumer” under the Act.
• Kernahan v. Home Warranty Admin of Florida, 236 N.J. 301 (2019) (argued): Addressing whether discrepancies in an arbitration clause including references to mediation made the clause unenforceable.