SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5315-17T1

TAMMIE S. NAU,

Plaintiff-Appellant,

v.

DAVID CHUNG and ENGLEWOOD

LAB, INC.,

Defendants-Respondents.

________________________________

Argued May 15, 2019 – Decided June 24, 2019

Before Judges Accurso, Vernoia and Moynihan.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Bergen County, Docket No. C000145-18.

Michael S. Horn argued the cause for appellant (Archer 

& Greiner, PC, attorneys; Steven B. Harz and Michael 

S. Horn, on the briefs).

Claudia A. Costa and Marc Cytryn argued the cause for 

respondents (Gordon & Rees, LLP, attorneys for 

Englewood Lab, Inc.; Kaufman Dolowich Voluck,

LLP, attorneys for David Chung; Gregory S. Hyman, 

NOT FOR PUBLICATION WITHOUT THE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.
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Marc Cytryn and Hillary A. Fraenkel, on the joint 

brief).

PER CURIAM

Plaintiff Tammie S. Nau appeals from a Chancery Division order 

dismissing her complaint pursuant to Rule 4:6-2(a) for lack of jurisdiction and 

directing that her claims proceed in mediation and arbitration in accordance with 

defendant Englewood Lab, Inc.'s (Englewood) arbitration policy. We affirm.

I.

Plaintiff filed a complaint against Englewood and its chief executive 

officer, defendant David Chung. The complaint alleged Chung offered plaintiff 

a position as Englewood's Executive Vice President and that she would receive 

"a substantial number of shares" in Englewood "once she started working,"

equating to an equity interest in the company of no less than $7 million and no 

more than $9 million. 

Plaintiff accepted the position and entered into a December 12, 2017 

written employment agreement with Englewood. Plaintiff agreed to "comply 

with all [of Englewood's] policies, procedures, rules and regulations, both 

written and oral." The agreement further provided for "[s]tock [o]ption terms to 

be finalized as promised by [the] end of 2018." The agreement did not otherwise 
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provide for plaintiff's receipt of shares of stock or an equity interest in 

Englewood. 

Shortly after signing the employment agreement, plaintiff received 

Englewood's Employee Handbook. The handbook's introduction states "the 

procedures, practices, policies and benefits described in the [h]andbook may be 

modified or discontinued by [Englewood] at any time, as it deems appropriate 

and at its sole discretion. Nothing in this [h]andbook creates a contract or 

otherwise modifies the at-will employment relationship." 

Section 710 of the handbook addresses dispute resolution, mediation, and 

arbitration. In pertinent part, it provides as follows:

If a dispute cannot be resolved internally, you and 

ENGLEWOOD LAB agree to first engage in mediation, 

and then arbitrate any remaining disputes.

For purposes of this policy, the following definitions 

apply:

"ENGLEWOOD LAB" or the "Company" shall mean 

ENGLEWOOD LAB, LLC, its officers, directors, 

owners, managers, employees, agents, [affiliated]

entities, subsidiaries, clients, vendors, and parent 

companies.

"Dispute", "Claim", or "Controversy" shall be broadly 

interpreted to mean any claim you may have against 

ENGLEWOOD LAB, or ENGLEWOOD LAB may 

have against you, relating to, arising from, or having 

any relationship or connection whatsoever with your 

employment with ENGLEWOOD LAB or the 
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termination thereof. This applies to claims including, 

but not limited to, claims for wages or other 

compensation due, claims for breach of any contract or 

covenant, tort claims including but not limited to libel, 

slander, fraud, and intentional infliction of emotional 

distress, claims for discrimination (including, but not 

limited to, race, sex, religion, national origin, age, 

marital status, or medical condition, handicap or 

disability), claims for benefits, and claims for violation 

of any federal, state, or other governmental law, statute, 

regulation or ordinance, except claims excluded by the 

terms of this agreement. This includes claims arising 

under the Age Discrimination in Employment Act 

(ADEA), Title VII of the Civil Rights Act of 1964, the 

Americans with Disabilities Act (ADA), the Family and 

Medical Leave Act (FMLA), the Fair Labor Standards 

Act (FLSA), 42 U.S.C. § 1981, including amendments 

to all the foregoing statutes, the Employee Polygraph 

Protection Act, the New Jersey Law Against 

Discrimination, the New Jersey Conscientious 

Employee Protection Act, or any other applicable 

federal, state, or local laws, and/or common law 

regulating employment termination, misappropriation, 

breach of the duty of loyalty, the law of contract or the 

law of tort; including, but not limited to, claims for 

malicious prosecution, wrongful discharge, wrongful 

arrest/wrongful imprisonment, intentional/negligent 

infliction of emotional distress or defamation.

"Disputes", "Claims" or "Controversies" does not 

include claims for state employment insurance (e.g., 

unemployment compensation, workers' compensation, 

worker disability compensation) or under the National 

Labor Relations Act.

. . . .

Neither ENGLEWOOD LAB nor you can file a civil 

lawsuit in court against the other party relating to such 
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claims, with the exception of claims for emergent relief 

related to the misuse or misappropriation of 

confidential business information and/or violation of 

the confidentiality and non-disclosure agreement. If a 

party files a lawsuit in court to resolve claims subject 

to arbitration, both agree that the court shall dismiss the 

lawsuit and require the claim to be resolved through 

arbitration.

If a party files a lawsuit in court involving claims that 

are, and other claims that are not, subject to arbitration, 

such party shall request the court to stay litigation of 

the nonarbitrable claims and require that arbitration 

take place with respect to those claims subject to 

arbitration.

. . . .

THE SUBMISSION OF AN APPLICATION, 

ACCEPTANCE OF EMPLOYMENT OR THE 

CONTINUATION OF EMPLOYMENT BY YOU 

SHALL BE DEEMED TO BE ACCEPTANCE OF 

THIS ARBITRATION POLICY. NO SIGNATURE 

SHALL BE REQUIRED FOR THE POLICY TO BE 

APPLICABLE. THE MUTUAL OBLIGATIONS SET 

FORTH IN THIS AGREEMENT SHALL 

CONSTITUTE A CONTRACT BETWEEN YOU AND 

ENGLEWOOD LAB BUT SHALL NOT CHANGE 

YOUR AT-WILL RELATIONSHIP OR ANY TERM 

OF ANY OTHER CONTRACT OR AGREEMENT 

BETWEEN ENGLEWOOD LAB AND YOU. THIS 

POLICY SHALL CONSTITUTE THE ENTIRE 

AGREEMENT BETWEEN YOU AND ENGLEWOOD 

LAB REGARDING THE RESOLUTION OF 

COVERED CLAIMS.

Plaintiff signed an "Acknowledgement and Receipt of Handbook" form 

which, in relevant part, states: 
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I acknowledge that I have received a copy of 

ENGLEWOOD['s] Employee Handbook . . . . I 

understand that I am expected to comply fully with each 

of those policies as a condition of my employment with 

ENGLEWOOD . . . . 

I understand and acknowledge that this Handbook is 

intended to provide me with general information about 

ENGLEWOOD['s] policies and procedures, that it is 

not a contract of employment, and that the Handbook is 

not intended as a promise or guarantee of my 

employment or of any particular term or condition of 

my employment.

I understand and acknowledge that ENGLEWOOD . . . 

may amend, modify, supersede or terminate the policies 

described in the Handbook, or introduce new policies 

and/or procedures, in its sole discretion, and at any 

time, with or without notice to me.

. . . .

I agree to mediate and arbitrate any claims I may have 

against ENGLEWOOD . . . as described in Section 710 

of this Handbook, and waive my right to a trial by jury.

I understand and acknowledge that my employment 

with ENGLEWOOD . . . is "at will," meaning that 

ENGLEWOOD . . . can terminate my employment . . . 

at any time, with or without notice or cause, and for any 

or no reason. . . . I understand and acknowledge that my 

"at will" employment status may not be altered by any 

oral or written statement made or issued by a[n 

Englewood] representative, with the exception of a 

written employment agreement signed by an officer of 

[Englewood].

[(Emphasis added).]
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The complaint alleges that following the commencement of plaintiff's 

employment, Chung sold "a majority stake" in Englewood without plaintiff's 

knowledge or consent. Plaintiff claimed it was "unknown" if the transaction 

involved the sale of Englewood stock shares she allegedly owned and Chung did 

not notify her of any meeting at which a vote was taken to approve the sale and 

change in control of Englewood. The complaint also alleged Chung denied 

plaintiff access to Englewood's books and records and violated her employment 

agreement by changing her role in the company. 

Plaintiff sought a declaratory judgment that she is a shareholder of 

Englewood and Chung's alleged transfer of her putative shares is null and void. 

The complaint asserted causes of action against Englewood and Chung for 

breach of "a number of agreements" between plaintiff and Englewood, breach 

of the covenant of good faith and fair dealing, unjust enrichment and conversion. 

Plaintiff also asserted claims against Chung for breach of fiduciary duty, 

minority shareholder oppression, misrepresentation and concealment.

Englewood and Chung moved to dismiss the complaint pursuant to Rule

4:6-2(a), claiming the court lacked jurisdiction because plaintiff is obligated to 

mediate and arbitrate her claims pursuant to the arbitration policy in the 
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handbook because she executed the acknowledgment form which included her 

express agreement to be bound by the policy. 

Plaintiff opposed the motion, asserting her employment agreement did not 

include a mediation or arbitration requirement and that the handbook and 

acknowledgment she signed incorporating the arbitration policy did not 

constitute a binding contract. In the alternative, plaintiff claimed that even if 

she is bound to arbitrate, the claims in her complaint do not fall within the 

coverage of the arbitration policy.

Judge Robert P. Contillo heard argument on defendants' motion and issued 

a detailed written decision and order dismissing the complaint without prejudice 

for lack of subject matter jurisdiction. See R. 4:6-2(a). Judge Contillo found 

plaintiff "clearly and unambiguously assented" to Englewood's arbitration 

policy by executing the acknowledgment that included a waiver of the right to a 

jury trial and an express agreement to mediate and arbitrate in accordance with 

Section 710 of the handbook, and that the policy encompassed the claims 

asserted in the complaint. The judge also found that although plaintiff believed 

otherwise, she was not a shareholder in Englewood and had not been issued any 

shares. The judge ordered "that all claims should be mediated then arbitrated 

consistent with the valid [a]rbitration [p]olicy." This appeal followed.
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II.

We review the court's order granting defendants' motion to compel 

arbitration de novo because the validity of an arbitration agreement presents a 

question of law. Kernahan v. Home Warranty Adm'r of Fla., Inc., 236 N.J. 301, 

316 (2019); see also Atalese v. U.S. Legal Servs. Grp., LP, 219 N.J. 430, 445-

46 (2014) ("Our review of a contract, generally, is de novo, and therefore we 

owe no special deference to the trial court's . . . interpretation. Our approach in 

construing an arbitration provision of a contract is governed by the same de novo 

standard of review." (citations omitted)). 

We must be "mindful of the strong preference to enforce arbitration 

agreements." Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 186 (2013). The 

Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 to 16, favors enforcement of 

arbitration agreements. AT&T Mobility, LLC v. Concepcion, 563 U.S. 333, 339 

(2011). The "overarching purpose of the FAA . . . is to ensure the enforcement 

of arbitration agreements according to their terms so as to facilitate streamlined 

proceedings." Id. at 344. "The [FAA] and the nearly identical New Jersey 

Arbitration Act, N.J.S.A. 2A:23B-1 to -32, enunciate federal and state policies 
10 A-5315-17T1

favoring arbitration" as a mechanism of resolving disputes that otherwise would 

be litigated. Atalese, 219 N.J. at 440 (citation omitted).

"An agreement to arbitrate 'must be the product of mutual assent, as 

determined under customary principles of contract law.'" Barr v. Bishop Rosen 

& Co., 442 N.J. Super. 599, 605-06 (App. Div. 2015) (quoting Atalese, 219 N.J. 

at 442). As noted recently by our Supreme Court, "[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)). 

"Mutual assent requires that the parties understand the terms of their 

agreement[,]" and where the "agreement includes a waiver of a party's right to 

pursue a case in a judicial forum, 'clarity is required.'" Barr, 442 N.J. Super. at 

606 (quoting Moore v. Woman to Woman Obstetrics & Gynecology, LLC, 416 

N.J. Super. 30, 37 (App. Div. 2010)). An arbitration agreement that includes a 

waiver of an employee's right to assert causes of action in court against an 

employer requires "an explicit, affirmative agreement that unmistakably reflects 

the employee's assent." Leodori v. Cigna Corp., 175 N.J. 293, 303 (2003). 
11 A-5315-17T1

Applying these principles, we are unpersuaded by plaintiff's claim that she 

did not have an obligation to arbitrate because her employment agreement 

lacked an arbitration provision. "[T]he question of enforceability" of plaintiff's 

arbitration obligation "is determined not on the basis of whether the arbitration 

agreement is contained in . . . an employment contract, but rather whether the 

arbitration provision qualifies as a valid and enforceable contract." Martindale 

v. Sandvik, Inc., 173 N.J. 76, 87 (2002). Although her employment agreement 

did not include an arbitration provision, plaintiff signed the acknowledgment 

expressly agreeing to mediate and arbitrate any claims against Englewood "as 

described in Section 710 of the [h]andbook." An employee's "signature to an 

agreement is the customary and perhaps surest indication of assent." Leodori, 

175 N.J. at 306-07. Plaintiff's execution of the plainly worded acknowledgment 

provides that unmistakable indication here.1 

Plaintiff also asserts she is not contractually bound by Section 710 because 

the handbook's introduction states that "[n]othing in this [h]andbook creates a 

contract," and that language creates an ambiguity as to whether she could be 

contractually bound by the handbook's provisions. The record does not support 

 

1

 Plaintiff does not argue that Section 710 of the handbook is unclear or 

ambiguous. 
12 A-5315-17T1

plaintiff's contention because her arbitration obligation is not founded on the 

handbook's terms; that is, Englewood does not claim and the court did not find 

that plaintiff is contractually bound to arbitrate under the handbook's terms. 

Rather, the court found, and we agree, plaintiff's execution of the 

acknowledgment, which clearly and unequivocally provides that plaintiff agrees 

to arbitrate her claims in accordance with Section 710 of the handbook, 

constitutes the binding contractual obligation requiring the mediation and 

arbitration of plaintiff's claims. 

Nothing in the handbook precludes plaintiff's execution of a separate 

document, such as the acknowledgment, adopting the handbook's provisions as 

binding contractual obligations. In Leodori, the Court recognized that an 

arbitration agreement may be set forth in a document separate from the one 

describing the terms of the arbitration obligation. 175 N.J. at 307. The Court 

held that where an employee acknowledges and assents to an arbitration 

agreement in a document separate from the one describing the arbitration 

obligation, the acknowledgment form "need not recite [the full] policy verbatim 

so long as the form refers specifically to arbitration in a manner indicating an 

employee's assent, and the policy is described more fully in an accompanying 
13 A-5315-17T1

handbook or in another document known to the employee." Ibid. That is the 

precise circumstance present here. 

Plaintiff relies on our decision in Morgan v. Raymours Furniture Co., 

where we found that an employee was not bound by an arbitration policy in the 

employer's handbook. 443 N.J. Super. 338, 343 (App. Div. 2016). In Morgan, 

the employee was terminated following his refusal to sign a stand-alone 

arbitration agreement, id. at 341, and then filed a complaint asserting claims 

under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49, and 

for wrongful termination and other similar claims, id. at 339-40. The employer 

moved to dismiss the complaint, arguing the employee was bound to arbitrate 

his claims under an arbitration provision in an employee handbook, the receipt 

of which the employee had acknowledged. Id. at 341.

We affirmed the trial court's denial of the employer's motion, finding no 

evidence the employee "'clearly and unambiguously' agree[d] to a waiver of the 

right to sue," id. at 343 (quoting Atalese, 219 N.J. at 443), a waiver the employer 

had stated "was not 'promissory or contractual,'" and "the employer cannot fairly 

contend the employee 'agreed' to a waiver of the right to sue," because the 

employee only acknowledged he "'received' and 'underst[ood]' the contents of 

the . . . handbook," ibid. (first alteration in original).
14 A-5315-17T1

Here, plaintiff did not merely acknowledge receipt of the handbook or that 

she understood its terms. She executed the acknowledgment that included a 

separate and express agreement to mediate and arbitrate her claims against 

Englewood in accordance with Section 710 of the handbook. As we explained 

in Morgan, "had plaintiff executed the stand-alone arbitration agreement 

presented to him . . . a different outcome would likely have followed." Id. at 

344. That different outcome is required where, as here, an employee executes 

an agreement separate from a handbook, but which expressly provides that the 

employee agrees to be bound by clearly defined provisions contained within the 

handbook. See Leodori, 175 N.J. at 305 (finding an arbitration clause will be 

enforced where there is an "explicit indication that the employee intended to 

abide by that provision"). 

Contrary to plaintiff's assertion, our conclusion that she is bound by her 

agreement to mediate and arbitrate in accordance with Section 710 of the 

handbook is supported by the Supreme Court's decision in Leodori. In Leodori, 

the Court found that an acknowledgment of receipt of a handbook, which 

included an arbitration provision, did not create a contractual obligation to 

arbitrate because the acknowledgment stated only that the employee "received"

the handbook. Id. at 297, 306. The Court specifically noted that "the 
15 A-5315-17T1

acknowledgment form that [the] plaintiff did sign would have sufficed as 

concrete proof of a waiver had it stated that the employee had agreed to the more 

detailed arbitration provision contained in the handbook." Id. at 307. Here, 

plaintiff executed the acknowledgment which included the "affirmative 

agreement that unmistakably reflects [plaintiff's] assent," id. at 303, to the 

arbitration policy the Court found missing in Leodori, see id. at 306. 

Plaintiff also argues that any purported contract formed by her execution 

of the acknowledgment is unenforceable as illusory because the handbook's 

introduction states it "may be modified or discontinued by [Englewood] at any 

time, as it deems appropriate and at its sole discretion." See Jaworski v. Ernst 

& Young U.S. LLP, 441 N.J. Super. 464, 477 (App. Div. 2015) ("Under general 

principles of contract law, an agreement . . . based only upon an illusory promise

is unenforceable."). We disagree. By her execution of the acknowledgment, 

plaintiff agreed to mediate and arbitrate her claims "as described in Section 710 

of this [h]andbook," and thus her contractual obligation was limited to only the 

version of Section 710 contained in the handbook extant when she signed the 

agreement. Her obligation to mediate and arbitrate is defined solely by the terms 

of the acknowledgment that she signed, and it does not allow for any 

modification of the mediation and arbitration requirement from that which is set 
16 A-5315-17T1

forth in Section 710 of "this [h]andbook." As such, there is nothing in the 

agreement rendering the clearly defined mediation and arbitration agreement 

illusory. 

We are also unpersuaded by plaintiff's contention that the arbitration 

policy in Section 710 is unenforceable because it provides that "NO 

SIGNATURE SHALL BE REQUIRED FOR THE POLICY TO BE 

APPLICABLE." We recognize that an affirmative showing of mutual assent to 

a waiver of an employee's right to a jury trial is required and that a lack of an 

affirmative indication of assent, in the form of a signature or otherwise, will 

render an arbitration policy unenforceable. See Leodori, 175 N.J. at 303, 307. 

But we find plaintiff's reliance on the language misplaced because she actually 

executed the acknowledgment and thereby provided the affirmative assent 

required to constitute a valid and binding agreement. 

Because we are satisfied plaintiff agreed to be contractually bound to 

mediate and arbitrate her claims under Section 710 of the handbook, we also 

address plaintiff's contention that the claims in the complaint are not 

encompassed by the arbitration policy's terms. "A court must look to the 

language of the arbitration clause to establish" the scope thereof and "its 

boundaries." Hirsch, 215 N.J. at 188. "[T]he proper starting point is the plain 
17 A-5315-17T1

meaning of the Arbitration Agreement. . . . Other interpretive principles need be 

employed only if the Agreement's plain meaning cannot be determined." 

Steigerwalt v. Terminix Int'l Co., 246 F. App'x 798, 801 (3d Cir. 2007).

The policy requires mediation and then arbitration of all disputes and, as 

noted, includes a broad definition of the disputes subject to its terms. The policy 

requires mediation and arbitration of claims "arising from, or having any 

relationship or connection whatsoever with [plaintiff's] employment with 

[Englewood]," "claims for . . . other compensation due, claims for breach of any 

contract or covenant," and claims for "breach of the . . . law of contract."

Plaintiff argues her claims fall outside the scope of the arbitration policy 

because the policy does not specifically state that it includes "shareholder 

disputes." However, her complaint does not allege she was actually issued or 

possessed any shares of stock in Englewood. It alleges a promise of shares of 

stock conditioned on plaintiff's acceptance of employment with Englewood and 

an entitlement to shares of stock based on an "equity interest" in accordance 

with the terms of her employment agreement. 

Plaintiff's claim she is entitled to shares of stock is encompassed by the 

arbitration policy because it "arises from" her employment with Englewood and 

is founded on an alleged breach of contract. The complaint alleges she accepted 
18 A-5315-17T1

employment based on the promise of an equity interest, and her claims are 

necessarily founded on the terms of her employment agreement because it 

includes a provision defining her entitlement to an equity interest—"[s]tock 

[o]ption terms [are] to be finalized as promised by [the] end of 2018." We are 

satisfied they fall within the disputes covered by the arbitration policy.

We last reject plaintiff's argument that the arbitration policy does not bar 

her claims against Chung because he did not execute the acknowledgment form. 

Section 710 plainly requires that plaintiff mediate and arbitrate her disputes 

against Englewood, which is expressly defined to include its "officers, directors, 

owners . . . employees, [and] agents." The complaint alleges Chung is 

Englewood's chief executive officer and acted in that capacity in offering 

plaintiff her employment position, executing the employment agreement and 

undertaking the alleged sale of the "majority stake" in Englewood. Thus, the 

claims against Chung fall within the coverage of the arbitration policy because, 

at a minimum, the complaint alleges claims against Chung in his capacity as an 

employee and agent of Englewood. 

Plaintiff also argues her claims fall outside the scope of the arbitration 

policy because "this matter involves equity that may be awarded under New 

Jersey's Business Corporation Act ('BCA')" and jurisdiction under the BCA is 
19 A-5315-17T1

expressly vested in the Superior Court, citing N.J.S.A. 14A:12-7 and 14A:12-

15. We reject plaintiff's claim because the arbitration policy encompasses all 

statutory claims. In addition, the BCA pertains to actions by shareholders and, 

as alleged in the complaint, plaintiff is not a shareholder. Rather, she alleges 

only that she was promised shares after her employment commenced and her 

employment agreement provided only for possible stock options that were to be 

subject to a future agreement. 

Any arguments asserted by plaintiff that we have not expressly addressed 

are without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E). 

Affirmed.