NAACP v. Foulke Management 421 N.J.Super 404 (App.Div 2011). Consumer Arbitration Agreements and Consumer Fraud. Consumer Lawyers.
In NAACP the court refused to enforce an arbitration agreement in a motor vehicle sale agreement. In NAACP the court held that the arbitration provisions scattered among various documents executed by purchaser were too plagued with confusing terms and inconsistencies, and thus, there was no enforceable arbitration agreement. NAACP of Camden County v. Foulke Mgmt. Corp., 421 N.J. Super. 404 (App. Div. 2011). The court held the following:
Thus, in the aftermath of AT&T Mobility, state courts remain free to decline to enforce an arbitration provision by invoking traditional legal doctrines governing the formation of a contract and its interpretation. NAACP of Camden County E. v. Foulke Mgmt. Corp., 421 N.J. Super. 404, 428 (App. Div. 2011).
New Jersey claims including claims under the New Jersey consumer fraud act are all subject to arbitration clauses. This means that if there is an arbitration agreement in the contract that you have signed the dealership for the business can attempt to enforce the arbitration clause by forcing the clause upon you. Yes this is enforceable, yes this is permitted, and yes many dealerships do this.
It is important that you read these contracts and negotiate the arbitration clause is out of the contract. If you do not negotiate the arbitration clause out of the contract if the dealership tries to enforce the contract it is likely that they can enforce the arbitration clause contained in the contract.
However, there is an entire analysis required, and set forth by the New Jersey Supreme Court that delineates and explains when an arbitration clause can be enforced and when an arbitration clause cannot be enforced. It is not an automatic win for the dealership. There are certain rules and procedures that must be undertaken for an arbitration clause to be enforceable. It must be fair. It must be clear. It must be understandable. It must be open obvious and notorious. It must clearly and obviously advise consumer that there waiving the right to a jury trial.
Again, the mere existence of an arbitration clause is not the final issue. The final issue is whether or not the method by which the arbitration clause is been disclosed is acceptable to the New Jersey Supreme Court as explained in numerous, various cases. That have been published by the New Jersey Supreme Court that must be followed by the Appellate Division and must be filed by the all of the trial courts.
The actual placement of thearbitration clause is a factor as to the enforceability of an arbitration clause in a consumer contract. The size of the print is an actual factor as to the enforceability of an arbitration clause in a consumer contract. The location of the arbitration clause in the contract is a factor in the enforceability of an arbitration clause in the consumer contract. These are but several factors that the court can address and usually will address in the context of enforceability.
Courts will also look at the specific terms and conditions within the arbitration clause to determine whether or not it’s enforceable. This is known as a procedural unconscionability. As an example, there might be a mandatory confidentiality nondisclosure requirement. This is been stricken by the New Jersey Supreme Court. There might be a provision that requires the consumer to pay all the costs and fees. This is potentially a significant factor as to whether or not a court will enforce the arbitration agreement in a consumer contract.
Consumer attorneys and other experienced attorneys that litigate consumer law cases and litigated in the state of New Jersey are usually well-versed in the issues of enforceability of arbitration agreements. You should review your documents and determine whether or not there's an arbitration agreement at: attorney to see if the arbitration agreement is enforceable as well as discussed your rights under the contract with the consumer attorney.