GREGG RUSSO VS. CHUGAI PHARMA USA, INC. (L-6391-20, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1410-20
GREGG RUSSO,
Plaintiff-Appellant,
v.
CHUGAI PHARMA USA, INC.
and NORIHISA ONOZAWA,
Defendants-Respondents.
____________________________
Argued September 7, 2021 – Decided September 16, 2021
Before Judges Alvarez and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-6391-20.
Lisa Manshel argued the cause for appellant.
Joseph C. Toris argued the cause for respondents
(Jackson Lewis, PC, attorneys; John F. Tratnyek, of
counsel and on the brief; Joseph C. Toris, on the brief).
PER CURIAM
Plaintiff Gregg Russo appeals from the January 15, 2021 Law Division
order compelling arbitration and dismissing his discrimination complaint
against Chugai Pharma USA, Inc. and its President, Norihisa Onozawa,
(collectively, defendants) without prejudice. We affirm.
We discern these facts from the record. In May 2015, plaintiff was
extended an offer of employment by defendants as the Director of Human
Resources, beginning June 1, 2015. The May 8, 2015 offer letter specified "a
condition of employment" was plaintiff's "agree[ment] to sign the [c]ompany's
standard form of 'Proprietary Information and Inventions [PII] Agreement'"
attached to the offer letter to "safeguard" defendants' "proprietary and
confidential information . . . ." In accepting the position, plaintiff signed the
offer letter on May 19, 2015, stating he "accept[ed] th[e] offer of employment
and the terms described" therein. On June 8, 2015, plaintiff also signed the six-
page PII agreement, which included an arbitration clause beginning at the top of
page five.
The arbitration clause was the same typeface and font size as the rest of
the PII agreement, and was labeled "Arbitration," which was underlined. In its
entirety, the clause stated:
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11. Arbitration.
(a) The parties agree that all disputes,
controversies, or claims, or any proceeding seeking to
investigate such disputes, controversies or claims
between them arising out of or relating to this
Agreement, any other agreement relating hereto or
otherwise arising out of or relating to the employment
relationship of Employee with Employer or the
termination of same, including, but not limited to,
claims of discrimination, harassment and retaliation,
shall be submitted to, and determined by, binding
arbitration. Such arbitration shall be conducted before
a single arbitrator pursuant to the Employment
Arbitration Rules and Mediation Procedures then in
effect of the American Arbitration Association, except
to the extent such rules are inconsistent with this
Agreement. Exclusive venue for such arbitration shall
be in Berkeley Heights, New Jersey. The prevailing
party in any such arbitration shall be entitled to recover
its reasonable attorneys' fees, costs, and expenses
incurred in connection with the arbitration as
determined by the arbitrator where such an award
would be permitted under the law governing the claims
involved. Any award pursuant to such arbitration shall
be final and binding upon the parties, and judgment on
the award may be entered in any federal or state court
having jurisdiction. Furthermore, the agreement to
arbitrate claims shall not prevent the parties from
seeking a temporary restraining order or temporary or
preliminary injunctive relief from a court of competent
jurisdiction to protect its rights hereunder.
(b) By execution of this Agreement, each of the
parties hereto acknowledges and agrees that such party
has had an opportunity to consult with legal counsel and
that such party knowingly and voluntarily waives any
right to a trial by jury of any dispute pertaining to or
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relating in any way to the subject of this Agreement, the
provisions of any federal, state, or local law, regulation,
or ordinance notwithstanding.
(c) Nothing contained in this Section 11 shall
prevent a party from initiating a proceeding in the
United States District Court for the District of New
Jersey or, if such court lacks subject matter jurisdiction,
the state courts of the State of New Jersey in Union
County in order to seek or obtain specific performance
of the provisions of this Agreement or other injunctive
relief relating to the provisions contained in Sections 2,
3, 4, 5 or 6 of this Agreement. If a party seeks
injunctive relief, such action shall not constitute a
waiver of the provisions of this agreement to arbitrate,
which shall continue to govern any and every dispute
between the parties including, without limitation, the
right of damages, permanent injunctive relief, and any
other remedy at law or in equity.
Plaintiff served as the Director of Human Resources for almost four years.
His employment ended on March 11, 2019, when he was terminated. In a letter
accompanying the proposed termination agreement he received from
defendants, plaintiff was "reminded" he had signed the PII agreement when his
employment commenced. The PII agreement was attached to the letter. Plaintiff
did not sign defendants' proposed termination agreement.
On September 25, 2020, plaintiff filed a two-count complaint against
defendants, alleging "unlawful discrimination based on race, national origin[,]
and/or ancestry" and "unlawful retaliation" in violation of the Law Against
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Discrimination (LAD), N.J.S.A. 10:5-1 to -49. The complaint alleged that
defendants favored "Japanese employees and employees with Japanese
heritage," and that plaintiff, who was "of European and Turkish descent," was
terminated because he was not Japanese and had complained about
"discrimination against non-Japanese employees and the preferential treatment
of Japanese nationals and employees with Japanese ancestry."
On November 5, 2020, over plaintiff's objection, defendants moved to
compel arbitration and dismiss plaintiff's complaint pursuant to Rule 4:6-2(a).
In support, defendants relied on the arbitration clause included in the PII
agreement that plaintiff had executed when he commenced employment.
Defendants also submitted "samplings of [three a]greements countersigned by
[p]laintiff as [defendants'] Director of Human Resources" during the course of
his employment, which agreements contained the same arbitration clause
plaintiff had signed.
Following oral argument, in a January 15, 2021 order, Judge Thomas R.
Vena granted defendants' motion, compelling arbitration and dismissing
plaintiff's complaint without prejudice. In an oral opinion placed on the record,
which was supplemented by a written statement of reasons accompanying the
order, the judge rejected plaintiff's contentions that the arbitration clause was
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hidden in a side agreement, lacked any waiver of statutory rights, and was
inconsistent and fatally ambiguous. On the contrary, the judge found that the
arbitration clause contained in the PII agreement was "unambiguous and clear"
and plaintiff could not "defeat the well-accepted presumption that [he] knew and
understood what was being signed."
In distinguishing the facts in Kernahan v. Home Warranty Administrator
of Florida, Inc., 236 N.J. 301, 308 (2019), where our Supreme Court found no
"mutuality of assent" to enforce an arbitration provision in a consumer contract
that it deemed "confusing, and contradictory – and, in part, misleading," Judge
Vena explained that, here,
the word "Arbitration" appears on a separate line at the
top of the next to last page of the [PII] Agreement and
the word itself is underlined, creating a distinction from
the rest of the text. The arbitration provision discusses
binding arbitration as the forum for any disputes arising
out of [p]laintiff's employment or the termination
thereof. Therefore, [Kernahan] is not controlling here
as the facts are distinguishable from those at bar.
Further, the judge found that "the claims brought by [p]laintiff against
[d]efendant [were] within the scope of the arbitration clause." The judge
expounded:
[T]he scope of the [arbitration] clause runs the gamut –
any and all claims arising out of the Agreement and
employment relationship are covered therein and
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subject to binding arbitration. . . . [I]t cannot be
required, either in law or practicality, that an arbitration
agreement enumerate every conceivable statute under
which a covered claim could arise. The terms of the
Agreement are sufficient to apprise any signatory of the
fact that they are waiving important and time-honored
rights as part of a binding agreement of employment.
Additionally, in rejecting plaintiff's argument that the arbitration
provision was deceptively hidden and "was merely a side agreement among
numerous other agreements," the judge explained:
While the title of the Agreement appeared to [p]laintiff
to relate to only a specific subset of potential claims
arising from the employment arrangement, it does not
make the language of the provision itself so
[]ambiguous as to warrant a finding by th[e c]ourt that
[d]efendants engaged in some sort of fraud or
misconduct – a finding that would be necessary here to
void the terms agreed to by the parties.
In this ensuing appeal, defendants raise the following points for our
consideration:
POINT I: THE COURT BELOW ERRED BY
COMPELLING ARBITRATION IN THE ABSENCE
OF CLEAR, UNMISTAKABLE, AND
UNAMBIGUOUS MANIFESTATION OF THE
INTENT TO WAIVE STATUTORY RIGHTS.
A. The Title "Proprietary Information And
Inventions Agreement" Is Fatally
Ambiguous As Applied To Arbitration Of
Statutory Retaliation And Race, Ancestry,
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And National Origin Discrimination
Claims.
B. The Arbitration Clause In Paragraphs
11(a) And 11(b) Of The [PII] Agreement Is
Fatally Ambiguous As Applied To
Arbitration Of Statutory Retaliation And
Race, Ancestry, And National Origin
Discrimination Claims.
POINT II: THE COURT BELOW ERRED BY
ACTING AS THE TRIER OF FACT AND DECIDING
THE ISSUE OF FRAUD WITHOUT PERMITTING
ANY DISCOVERY.
We review de novo an order compelling arbitration. Skuse v. Pfizer, Inc.,
244 N.J. 30, 46 (2020); see also Kernahan, 236 N.J. at 316 ("Whether a
contractual arbitration provision is enforceable is a question of law, and we need
not defer to the interpretative analysis of the trial . . . court[] unless we find it
persuasive."). When reviewing such orders, we recognize arbitration is a
"favored means of dispute resolution," Hojnowski v. Vans Skate Park, 187 N.J.
323, 342 (2006), and "are mindful of the strong preference to enforce arbitration
agreements, both at the state and federal level." Hirsch v. Amper Fin. Servs.,
LLC, 215 N.J. 174, 186 (2013); see also Flanzman v. Jenny Craig, Inc., 244 N.J.
119, 133 (2020) (recognizing federal and state policy favoring arbitration).
In determining whether a valid agreement to arbitrate exists, we apply
"state contract-law principles." Hojnowski, 187 N.J. at 342; see also Kernahan,
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236 N.J. at 317-18. Indeed, we "cannot subject an arbitration agreement to more
burdensome requirements than those governing the formation of other
contracts." Leodori v. Cigna Corp., 175 N.J. 293, 302 (2003). Under those
principles, "[a]n arbitration agreement is valid only if the parties intended to
arbitrate because parties are not required 'to arbitrate when they have not agreed
to do so.'" Kernahan, 236 N.J. at 317 (quoting Volt Info. Scis., Inc. v. Bd. of
Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 478 (1989). Thus, our first
inquiry is whether the parties actually and knowingly agreed to arbitrate their
dispute. Ibid.; see also Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430,
442 (2014)).
That inquiry begins with the language of the arbitration clause itself. To
reflect mutual assent to arbitrate, the terms must be "sufficiently clear to place
[an individual] on notice that he or she is waiving a constitutional or statutory
right . . . ." Atalese, 219 N.J. at 443. "[A]lthough a waiver-of-rights provision
need not 'list every imaginable statute by name to effectuate a knowing and
voluntary waiver of rights,' employees should at least know that they have
'agree[d] to arbitrate all statutory claims arising out of the employment
relationship or its termination." Id. at 447 (second alteration in original)
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(quoting Garfinkel v. Morristown Obstetrics & Gynecology Assocs., 168 N.J.
124, 135 (2001)).
"No particular form of words is necessary to accomplish a clear and
unambiguous waiver of rights." Id. at 444; see also Flanzman, 244 N.J. at 137.
Stated differently, "[n]o magical language is required to accomplish a waiver of
rights in an arbitration agreement." Morgan v. Sanford Brown Inst., 225 N.J.
289, 309 (2016). If "at least in some general and sufficiently broad way" the
language of the clause conveys that arbitration is a waiver of the right to bring
suit in a judicial forum, the clause will be enforced. Atalese, 219 N.J. at 447.
See Arafa v. Health Express Corp., 243 N.J 147, 172 (2020) (finding jury trial
waiver "was knowing and voluntary in light of the . . . broad agreement to
resolve 'all disputes' between the parties through binding arbitration");
Martindale v. Sandvik, Inc., 173 N.J. 76, 81-82 (2002) (upholding arbitration
clause stating that "all disputes relating to [the party's] employment . . . shall be
decided by an arbitrator" and that party "waiv[ed] [her] right to a jury trial") .
In the employment setting in particular, an arbitration "provision must
reflect that an employee has agreed clearly and unambiguously to arbitrate the
disputed claim. Generally, we determine a written agreement's validity by
considering the intentions of the parties as reflected in the four corners of the
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written instrument." Leodori, 175 N.J. at 302. Employers and employees "may
agree to arbitrate their disputes by referring generally to an arbitration policy
contained in a separate writing, provided that the policy itself clearly reflects
the employee's knowing and voluntary waiver of rights." Id. at 308.
"[T]o enforce a waiver-of-rights provision[,] . . . the [c]ourt requires some
concrete manifestation of the employee's intent as reflected in the text of the
agreement itself." Id. at 300 (quoting Garfinkel, 168 N.J. at 135). "Although
not strictly required, a party's signature to an agreement is the custom ary and
perhaps surest indication of assent." Id. at 306-07.
[A]s a general rule, one who does not choose to read a
contract before signing it cannot later relieve himself of
its burdens. The onus [is] on plaintiff to obtain a copy
of the contract in a timely manner to ascertain what
rights it waived by beginning the arbitration process.
[Skuse, 244 N.J. at 54 (internal quotations omitted)
(quoting Riverside Chiropractic Grp. v. Mercury Ins.
Co., 404 N.J. Super. 228, 238 (App. Div. 2008)).]
Applying these principles to the arbitration clause at issue here, we
conclude that the arbitration clause clearly and unambiguously signaled to
plaintiff he was waiving his right to pursue his discrimination claims in court
and his execution of the agreement demonstrated his assent to the terms . The
clause is clearly labeled "Arbitration" and printed in the same font size as the
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rest of the agreement. Although the arbitration clause is contained within the
PII Agreement, the language leaves no room for confusion regarding the
requirement to arbitrate any "claims . . . arising out of or relating to the
employment relationship of [e]mployee with [e]mployer or the termination of
[the] same . . . ." Thus, we discern nothing about the mode of presentation or
the placement of the provision that would support a conclusion that the clause
was presented unfairly or with a design to conceal, deceive, or de-emphasize its
importance.
Encompassed within the claims subject to "binding arbitration[,]" the
clause specifically references "all disputes, controversies, or claims . . .
including, but not limited to, claims of discrimination . . . and retaliation . . . ."
The clause further specifies that execution of the agreement signifies "that such
party knowingly and voluntarily waives any right to a trial by jury of any dispute
pertaining to or relating in any way to the subject of this Agreement." Although
the latter provision appears in subsection (b) and the former in subsection (a),
there is no conflict or confusion between the subsections. Both provisions
clearly specify that the terms pertain to "this Agreement."
In sum, because the arbitration clause is clear and unambiguous, devoid
of conflicting provisions, and contains a definitive and valid waiver of the right
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to a jury trial for statutory claims of "discrimination" and "retaliation" as alleged
in plaintiff's complaint, it is enforceable. Cf. Rockel v. Cherry Hill Dodge, 368
N.J. Super. 577, 580-83 (App. Div. 2004) (finding an arbitration provision
unenforceable because of "the uncertain content of the parties' agreement to
arbitrate, the contracts' conflicting descriptions of the manner and procedure
which would govern the arbitration proceedings, the absence of a definitive
waiver of plaintiff's statutory claims, and the obscure appearance and location
of the arbitration provisions").
On appeal, plaintiff renews the arguments rejected by Judge Vena.
Specifically, plaintiff asserts the clause is fatally ambiguous, unenforceable, and
"deceptively[] . . . buried" in the PII agreement, which contains a deceptive title.
Plaintiff argues the clause "lacks a waiver notice," and "does not manifest an
intent to arbitrate statutory claims." Applying a de novo standard of review, we
reject plaintiff's contentions and affirm for the persuasive reasons articulated by
Judge Vena in his oral and written statement of reasons. Additionally, we have
considered plaintiff's remaining contention regarding his entitlement to
"discovery limited to the question of fraud in the formation of the arbitration
agreement" and reject it without further discussion in a written opinion. R. 2:11-
3(e)(1)(E). See N.J.S.A. 2A:23B-7 (permitting the court to "proceed summarily
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to decide the issue" on a party's application to compel arbitration); see also Gras
v. Assocs. First Cap. Corp., 346 N.J. Super. 42, 56 (App. Div. 2001) (noting that
there was "no . . . obligation" for the defendant to alert the plaintiff to the
arbitration provision "where the provision is not hidden" and "[f]ailing to read
a contract does not excuse performance unless fraud or misconduct by the other
party prevented one from reading." (quoting Young v. Prudential Ins. Co. of
Am., Inc., 297 N.J. Super. 605, 619 (App. Div. 1997))).
Affirmed.
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