NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2651-13T3

GREG NOREN,

Plaintiff-Appellant/

Cross-Respondent,

v.

HEARTLAND PAYMENT SYSTEMS, INC.,

Defendant-Respondent/

Cross-Appellant.

________________________________________________________________

Submitted May 3, 2016 – Decided

Before Judges Fisher, Espinosa and 

Rothstadt.

On appeal from Superior Court of New Jersey, 

Law Division, Bergen County, Docket No. L4528-06.

Franzblau Dratch, PC, attorneys for 

appellant/cross-respondent (Patrick T. 

Collins, of counsel; Adam Shefki, on the 

briefs).

Blank Rome, LLP, attorneys for respondent/ 

cross-appellant (Seth J. Lapidow, of counsel 

and on the brief; Jaret N. Gronczewski, on 

the brief).

The opinion of the court was delivered by

ESPINOSA, J.A.D.

Plaintiff Greg Noren brought suit against his former 

employer, Heartland Payment Systems, Inc. (HPS), alleging breach 

February 6, 2017

APPROVED FOR PUBLICATION

February 6, 2017

APPELLATE DIVISION
A-2651-13T3

2

of contract and a violation of the Conscientious Employee 

Protection Act (CEPA), N.J.S.A. 34:19-1 to -14.

1 Pursuant to a 

jury-waiver provision in Noren's employment contract, the trial 

court denied his demand for a jury. Following a bench trial, 

the trial court dismissed Noren's claims and awarded HPS over $2

million in fees and costs. Noren's appeal does not require us 

to determine the merits of his claims. He also does not contest 

the application of the jury-waiver provision to his breach of 

contract claim or that fees may be awarded on that claim. He 

challenges the application of the jury-waiver provision to the

CEPA claim and argues that HPS is not entitled to fees related 

to his CEPA claim. Because we conclude the jury-waiver 

provision was not legally enforceable as to Noren's CEPA claim, 

we reverse the judgment and fee award on that claim, and remand 

for a jury trial on the CEPA claim. For reasons that follow, we 

also dismiss HPS's cross-appeal, challenging the trial judge's 

denial of its summary judgment motion.

 

1 The complaint also alleged claims of intentional harassment, 

wrongful discharge, intentional infliction of emotional 

distress, defamation, false light, fraud and negligent 

misrepresentation. These claims were dismissed before trial and 

are not the subject of this appeal. 
A-2651-13T3

3

I.

Noren was employed as a Relationship Manager (RM) by HPS 

from April 1998 until June 2005. He sold HPS's credit and 

debit, payroll and related processing card services to 

merchants. On June 14, 2002, HPS terminated Noren's employment 

because his contract had expired and he refused to sign a new 

Relationship Manager Agreement (2002 RMA). On July 15, 2002, 

Noren faxed a signed copy of the 2002 RMA to HPS and was 

immediately rehired. The 2002 RMA contained a jury-waiver 

provision that stated:

HPS and RM irrevocably waive any right to 

trial by jury in any suit, action or 

proceeding under, in connection with or to 

enforce this Agreement.

In January 2003, Noren signed a Vested Relationship Manager 

Agreement (2003 VRMA), which: superseded all prior agreements 

between Noren and HPS, contained a jury-waiver provision 

identical to the provision in the 2002 RMA as well as a feeshifting provision, and specified he was an at-will employee. 

HPS terminated Noren's employment in June 2005.

Noren's demand for a jury trial was denied by the court 

based on the jury-waiver provision in the 2002 RMA.2 After a 

 

2 There was significant motion practice concerning the 

complaint. In addition to a February 2011 order denying HPS's 

motion for summary judgment and subsequent denial of HPS's 

(continued)
A-2651-13T3

4

twenty-two-day bench trial, the trial court dismissed Noren's 

complaint, finding he failed to prove either cause of action, 

and awarded HPS $2,059,206.53 in fees and costs. 

II.

The right to a trial by jury is guaranteed by the New 

Jersey Constitution, N.J. Const. art. I, ¶ 9, and, in the case 

of Noren's CEPA claim, explicitly established by statute, 

N.J.S.A. 34:19-5. The Legislature's intent that the right to a 

jury trial be guaranteed is manifest from its amendment of the 

statute in 1990, following our decision in Abbamont v. 

Piscataway Township Board of Education, 238 N.J. Super. 603 

(App. Div. 1990), aff'd, 138 N.J. 405 (1994), in which we held 

there was no right to a jury trial under CEPA. In response, the

Legislature enacted L. 1990, c. 12, amending both CEPA and the 

Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, to 

 

(continued)

motion for reconsideration, the motion practice included: a 

September 2007 order denying HPS's motion to dismiss the 

complaint and strike the jury demand, a September 2008 order 

dismissing the complaint as to the individual defendants, a 

November 2008 order dismissing the complaint, the reinstatement 

of Noren's CEPA and breach of contract claims on appeal, a March 

2010 order granting HPS's motion to strike previously dismissed 

allegations from Noren's second amended complaint, an October 

2010 order granting HPS's motion to reconsider the 2007 denial 

of its motion to strike Noren's jury demand and striking the 

jury demand, and a November 2010 order denying Noren's motion 

for reconsideration and disqualification of the judge. 
A-2651-13T3

5

specify that a person who brings a legal action under either 

statute is entitled to a jury trial. See State v. Sailor, 355 

N.J. Super. 315, 322 (App. Div. 2001). As a result, CEPA now 

explicitly provides, "Upon the application of any party, a jury 

trial shall be directed to try the validity of any claim under 

this act specified in the suit." N.J.S.A. 34:19-5 (emphasis 

added).

3 The amendment of CEPA and LAD in a single enactment 

reflects their shared character as remedial statutes that 

"promote[] a strong public policy of the State," that should be 

liberally construed. Abbamont, supra, 138 N.J. at 431 (citing 

Judiciary, Law and Public Safety Committee, Statement on 

Assembly Bills No. 2872, 2118, 2228 (1990)).

Noren's appeal therefore turns on whether the provision in 

his 2002 RMA is a legally enforceable waiver of this 

constitutionally and statutorily guaranteed right, a question 

decided through the application of "customary principles of 

contract law." Atalese v. U.S. Legal Servs. Grp., L.P., 219 

N.J. 430, 442 (2014) (quoting NAACP of Camden Cty. E. v. Foulke 

Mgmt., 421 N.J. Super. 404, 424 (App. Div.), certif. granted, 

209 N.J. 96 (2011), and appeal dismissed, 213 N.J. 47 (2013)), 

 

3 But see Kaye v. Rosefielde, 432 N.J. Super. 421, 433 (App. 

Div. 2013) (affirming the trial judge's exercise of ancillary 

jurisdiction to hear a CEPA claim without a jury, an issue not 

addressed in Supreme Court's decision reversing), rev'd, 223

N.J. 218 (2015).
A-2651-13T3

6

cert. denied, ____ U.S. ____, 135 S. Ct. 2804, 192 L. Ed. 2d 847 

(2015). 

"[W]hen a contract contains a waiver of rights . . . the 

waiver 'must be clearly and unmistakably established.'" Morgan 

v. Sanford Brown Inst., 225 N.J. 289, 308-09 (2016) (quoting 

Atalese, supra, 219 N.J. at 444). The contractual waiver of 

rights provision "must reflect that [the party] has agreed 

clearly and unambiguously to its terms." Atalese, supra, 219 

N.J. at 443 (alteration in original) (quoting Leodori v. Cigna 

Corp., 175 N.J. 293, 302 (2003)). Because "[w]aiver is the 

voluntary and intentional relinquishment of a known right,"

Knorr v. Smeal, 178 N.J. 169, 177 (2003), there cannot be a 

clear and unambiguous agreement to waive without a "mutual 

understanding" of the terms of the waiver. Atalese, supra, 219 

N.J. at 446-47. To be effective, a party must "have full 

knowledge of his legal rights and intent to surrender those 

rights." Knorr, supra, 178 N.J. at 177.

"No magical language is required to accomplish a waiver of 

rights," Morgan, supra, 225 N.J. at 309, and the provision need 

not "identify the specific constitutional or statutory right" 

subject to the waiver. Atalese, supra, 219 N.J. at 447. But 

the provision must be grounded in "plain language that would be 

clear and understandable to the average" person that statutory 
A-2651-13T3

7

rights are being waived. Id. at 446. In short, to effect a 

waiver, the language must clearly explain (1) what right is 

being surrendered and (2) the nature of the claims covered by 

the waiver. 

Language that failed to meet that standard includes the 

arbitration provision contained in the employment agreement in 

Garfinkel v. Morristown Obstetrics & Gynecology Associates, 

P.A., 168 N.J. 124 (2001). The Court found the language too 

ambiguous to constitute an enforceable waiver of the employee's 

LAD claim, explaining:

The clause states that "any controversy or 

claim" that arises from the agreement or its 

breach shall be settled by arbitration. That 

language suggests that the parties intended 

to arbitrate only those disputes involving a 

contract term, a condition of employment, or 

some other element of the contract itself. 

Moreover, the language does not mention, 

either expressly or by general reference, 

statutory claims redressable by the LAD. 

[Id. at 134 (emphasis added).]

The Court instructed, "a waiver-of-rights provision should at 

least provide that the employee agrees to arbitrate all 

statutory claims arising out of the employment relationship or 

its termination." Id. at 135.

In contrast, the arbitration provision in Jaworski v. Ernst 

& Young US LLP, 441 N.J. Super. 464 (App. Div.), certif. denied, 

223 N.J. 406 (2015) identified "[c]laims based on state statutes 
A-2651-13T3

8

and local ordinances, including state and local antidiscrimination laws," as covered disputes. Id. at 480 

(alteration in original). We observed, "By specifically 

including state statutory anti-discrimination claims as Covered 

Disputes, [Ernst & Young] clearly and unequivocally put 

plaintiffs on notice that any claims arising under the LAD, 

regarding termination or otherwise, were subject to mandatory 

arbitration." Ibid. 

Similarly, in Leodori, supra, the Supreme Court found the 

relevant clause in the employee handbook "unambiguously" 

articulated the intent "to arbitrate all employment-related 

claims, including those that might be asserted under CEPA." 175 

N.J. at 302. The Court explained, 

The relevant provision lists numerous 

federal statutes by name as falling within 

its purview, in addition to "any other 

federal, state, or local statute, 

regulation, or common-law doctrine, 

regarding employment discrimination, 

conditions of employment, or termination of 

employment." That language easily satisfies 

the requirement that such clauses provide an 

unmistakable expression of an employee's 

willingness to waive his or her statutory 

remedies. 

[Id. at 302-03.]

Although it is plainly preferable for a waiver of rights 

provision to explicitly state so when the waiver is intended to 

include statutory rights, it is possible to provide the clarity 
A-2651-13T3

9

necessary for a valid waiver without such specific reference. 

The arbitration agreement in Martindale v. Sandvik, Inc., 173 

N.J. 76 (2002), stated that plaintiff agreed to waive her right 

to a jury trial "in any action or proceeding relating to my 

employment with Sandvik" and that "all disputes relating to my 

employment with Sandvik or termination thereof" would be subject 

to arbitration. Id. at 96. The Court distinguished this 

language from the arbitration provision in Garfinkel, stating it 

was free of the "limiting references" that were fatal to the 

enforceability of that arbitration provision. Ibid. The Court 

concluded the arbitration provision in Martindale "was clear and 

unambiguous [and] sufficiently broad to encompass reasonably 

plaintiff's statutory causes of action." Ibid.

The jury-waiver provision here applied to "any suit, action 

or proceeding under, in connection with or to enforce this 

Agreement." (Emphasis added). It made no reference to statutory 

claims and did not define the scope of claims as including all 

claims relating to Noren's employment. This language was 

similar to the language in Garfinkel deemed too ambiguous 

because it failed to refer to statutory claims. And, by using 

"this Agreement" as the defining threshold for all suits, 

actions and proceedings, the provision limits the category of 

disputes for which a jury trial is waived. We therefore 
A-2651-13T3

10

conclude the jury-waiver provision fails to clearly and 

unambiguously explain that the right to a jury trial is waived 

as to a CEPA claim and that a remand is necessary for a jury 

trial on this claim.

III.

The trial judge wrote an extensive opinion to support her 

award of $2,059,260.53 in attorney fees and costs to HPS. 

Although fee determinations by the trial court are generally 

entitled to our deference, Packard-Bamberger & Co. v. Collier, 

167 N.J. 427, 444 (2001), a remand is required here.

"New Jersey has a strong policy disfavoring shifting of 

attorneys' fees." N. Bergen Rex Transp., Inc. v. Trailer 

Leasing Co., 158 N.J. 561, 569 (1999). We allow for the 

recovery of such fees only "if they are expressly provided for 

by statute, court rule, or contract." Packard-Bamberger, supra, 

167 N.J. at 440. In this case, there were two possible grounds 

for the award of counsel fees and costs: the fee-shifting 

provisions contained in CEPA, N.J.S.A. 34:19-6, and in the 2003 

VRMA.

CEPA permits an award of "reasonable attorneys' fees and 

court costs" to a prevailing employer "if the court determines 

that an action brought by an employee under this act was without 

basis in law or in fact." N.J.S.A. 34:19-6. This provision 
A-2651-13T3

11

applies only to "a narrow band of cases" in which "the employer 

must be vindicated and the employee must have proceeded without 

basis in law or in fact. . . ." Best v. C&M Door Controls, 

Inc., 200 N.J. 348, 358 (2009). Moreover, because the feeshifting provision is in derogation of common law, it is 

strictly construed. See Buccinna v. Micheletti, 311 N.J. Super.

557, 566 (App. Div. 1998) (citing Hirsch v. Tushill, Ltd., 110 

N.J. 644, 647 (1988)).

It must be noted that the threshold for the award of fees 

is higher for the CEPA claim. It was error for the trial judge 

to conclude the threshold was met based upon her finding that 

Noren "failed to set forth a viable claim against the defendant 

pursuant to CEPA." There is a broad spectrum in the quality of 

proofs that fall between a claim that is not "viable" and one 

that is "without basis in law or in fact." N.J.S.A. 34:19-6;

see Buccinna, supra, 311 N.J. Super. at 562 (concluding 

defendant who prevailed at trial was not entitled to counsel 

fees under CEPA because there was no finding that plaintiff's 

claim was "without basis in law or in fact"). A claim is not 

viable if it fails to satisfy all the requisite elements of 

proof. To lack any basis in law or in fact, there must be 

either no legal authority to support the claim or the absence of 

a factual basis for the claim. 
A-2651-13T3

12

The applicable standard is similar to that for Rule 1:4-8, 

which authorizes a sanction for an assertion made in a paper 

filed with the court when "no rational argument can be advanced 

in its support, or it is not supported by any credible evidence, 

or it is completely untenable." United Hearts, L.L.C. v. 

Zahabian, 407 N.J. Super. 379, 389 (App. Div.) (quoting First 

Atl. Fed. Credit Union v. Perez, 391 N.J. Super. 419, 432 (App. 

Div. 2007)), certif. denied, 200 N.J. 367 (2009). In United 

Hearts, we concluded, 

[A] pleading cannot be deemed frivolous as a 

whole nor can an attorney be deemed to have 

litigated a matter in bad faith where, as in 

this case, the trial court denies summary 

judgment on at least one count in the 

complaint and allows the matter to proceed 

to trial.

[Id. at 394.]

 

The fact that Noren's CEPA claim survived summary judgment 

would similarly appear to preclude a finding that his claim was 

"without basis in law or in fact." N.J.S.A. 34:19-6; see also

Buccinna, supra, 311 N.J. Super. at 562-63 (finding the standard 

for an award of fees under CEPA, N.J.S.A. 34:19-6, similar to 

the standard for the frivolous claim law, N.J.S.A. 2A:15-59.1).

Turning to the fee-shifting provision in the 2003 VRMA, we 

note that "when the fee-shifting is controlled by a contractual 

provision, the provision should be strictly construed in light 
A-2651-13T3

13

of our general policy disfavoring the award of attorneys' fees." 

Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 385 

(2009). The 2003 VRMA states:

In any suit, action or proceeding arising 

out of or related to this Agreement, the 

successful party shall be awarded, in 

addition to any other relief to which it is 

found to be entitled, costs of suit, fees of 

experts and reasonable attorneys' fees 

against the unsuccessful party.

This language tracks that of the jury-waiver provision, 

which we hold failed to clearly and unequivocally extend to 

Noren's CEPA claim. Further, the provision authorizes an award 

of expert fees. This exceeds the award of what is permitted 

under CEPA, i.e., "reasonable attorneys' fees and court costs,"

N.J.S.A. 34:19-6, and is not authorized by another statute or 

any court rule. See Buccinna, supra, 311 N.J. Super. at 565-66. 

The trial judge found the CEPA and breach of contract 

claims "inextricably intertwined" and so, drew no distinction 

between expenses incurred to defend against either claim. To be 

sure, this is a difficult task but one that must be performed to 

determine what fees are attributable to the breach of contract 

claim.4

 

4 Relying on Hensley v. Eckerhart, 461 U.S. 424, 434-35, 103 S. 

Ct. 1933, 1940, 76 L. Ed. 2d 40, 51-52 (1983), HPS argues that 

(continued)
A-2651-13T3

14

IV.

Finally, we turn to HPS's cross-appeal, in which HPS argues 

the trial court erred in denying its summary judgment motion. 

Rule 2:6-1(a)(1) states, in pertinent part: 

If the appeal is from a summary judgment, 

the appendix shall . . . include a statement 

of all items submitted to the court on the 

summary judgment motion and all such items 

shall be included in the appendix, except 

that briefs in support of and opposition to 

the motion shall be included only as 

permitted by subparagraph (2) of this rule.

Contrary to the requirements of this rule, HPS did not 

submit the items that had been submitted to the trial court on 

the summary judgment motion or even a statement of the items 

submitted. HPS's appendix included the briefs and 

certifications of counsel for Noren and HPS. As to the 

certification submitted in support of its motion, HPS attached 

"only relevant exhibits." The certification on behalf of Noren 

was in the appendix, but "excluding exhibits."

 

(continued)

it is entitled to fees incurred defending both the CEPA and 

breach of contract claims because they involved a common core of 

facts and related legal theories. In Hensley, the Court 

considered the appropriate measure of attorneys' fees in a case 

where a suit filed alleging several civil rights violations was 

successful on one claim. Ibid. The award of fees was made 

pursuant to 42 U.S.C.A. § 1988, which is designed to encourage 

litigation to vindicate civil rights violations. That 

underlying public policy does not apply here.
A-2651-13T3

15

In reviewing a summary judgment, we are required to view 

the evidence that was submitted to the trial court "in the light 

most favorable to the non-moving party," to determine "if there 

is a genuine issue as to any material fact or whether the moving 

party is entitled to judgment as a matter of law." Rowe v. 

Mazel Thirty, LLC, 209 N.J. 35, 41 (2012) (citing Brill v. 

Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)). HPS's 

selective inclusion of exhibits it considers relevant and 

exclusion of exhibits relied upon by Noren in opposing summary 

judgment makes that task impossible. Therefore, the crossappeal is dismissed.

In sum, we reverse the judgment as to the CEPA claim and 

remand for a jury trial. The judgment regarding the breach of 

contract claim remains intact and the fee award is remanded for 

the trial judge to apportion the reasonable amount of fees and 

costs incurred in defense of the breach of contract claim. The 

cross-appeal is dismissed.

Reversed and remanded. We do not retain jurisdiction.