SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4211-18T3

JARROD MAGA, 

Plaintiff-Appellant,

v.

PREMIER CONSULTING GROUP, 

INC., d/b/a XTENSEGRITY/ZAG,

MADHU MADHAVAN, and 

MOHAN VENGLAT,

Defendants-Respondents.

Argued November 19, 2019 – Decided

Before Judges Hoffman, Currier and Firko. 

On appeal from the Superior Court of New Jersey, Law 

Division, Mercer County, Docket No. L-2329-18.

Jamison M. Mark argued the cause for appellant (Mark 

Law Firm LLC, attorneys; Jamison M. Mark, of counsel 

and on the briefs).

Jay H. Ganatra argued the cause for respondents 

(Hartmann Doherty Rosa Berman & Bulbulia, LLC, 

attorneys; Paul Schoonmak Doherty, III, Kelly A. 

Zampino, and Jay H. Ganatra, on the brief).

NOT FOR PUBLICATION WITHOUT THE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.

January 29, 2020
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PER CURIAM

Plaintiff Jarrod Maga appeals from an order dismissing his complaint and 

compelling arbitration. Because we conclude the arbitration agreement did not 

include a sufficiently clear waiver of plaintiff's right to litigate his claims in 

court, we reverse.

In March 2017, plaintiff was hired by defendant Premier Consulting

Group Inc. After he filed a complaint with the United States Department of 

Labor about defendant, he was terminated in 2018. Plaintiff filed suit, alleging 

breach of contract, unjust enrichment, violation of the Wage Payment Law, 

N.J.S.A. 34:11-4.1 to -4.14, and that his termination constituted retaliation under 

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

At the time of his hiring, plaintiff signed an employment agreement. 

Section 9 is entitled Resolution of Disputes. Section 9.1 states:

Subject to the provisions of Subsection 9.2 of this 

Agreement, any and all controversies or claims arising 

out of or relating to this Agreement, its performance, 

construction, interpretation or breach, or otherwise 

relating to or arising from [plaintiff's] employment or 

the termination thereof (including claims for 

employment discrimination or claims under any local, 

state or federal statute or regulation), shall be resolved 

by final and binding arbitration, to the greatest extent 

allowed by law, which arbitration will be conducted in 

Delaware in accordance with the rules of the American 

Arbitration Association then in effect, and any award 
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that may be rendered by the arbitrator or arbitrators may 

be enforced in any court of competent jurisdiction. The 

arbitrator shall have no authority to change or modify 

any provision of this Agreement.

Defendants moved to dismiss the complaint and compel arbitration under 

the agreement. In his opposition, plaintiff argued the terms of the agreement 

were ambiguous and Section 9.1 lacked the legally required language for his 

knowing waiver and for a meeting of the minds. In addition, because the 

agreement did not have a separate provision advising of the waiver of a jury 

trial, it was unenforceable.

The court granted the motion in a March 29, 2019 order and written 

decision. Finding the arbitration clause was clear that all claims arising out of 

the agreement, including discrimination claims, would be resolved by final and 

binding arbitration, the court dismissed the complaint without prejudice and 

ordered the parties to arbitrate their dispute. The court denied plaintiff's motion 

for reconsideration on May 10, 2019.

Plaintiff argues on appeal, as he did before the trial court, that the 

arbitration clause in the employment agreement was unenforceable because it 

did not refer to an explicit waiver of a jury trial. He contends there is a 

fundamental right to a jury in a CEPA matter, and case law, specifically Atalese 
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v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430 (2014), requires arbitration clauses 

to contain an express waiver of the right to a jury.

We review the trial court's determination of the enforceability of an 

arbitration clause in a contract de novo. Goffe v. Foulke Mgmt. Corp., 238 N.J. 

191, 207 (2019) (citing Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 186 

(2013)). "The enforceability of arbitration provisions is a question of law; 

therefore, it is one to which we need not give deference to the analysis by the 

trial court . . . ." Ibid. (citing Morgan v. Sanford Brown Inst., 225 N.J. 289, 303 

(2016)).

The Federal and New Jersey Arbitration Acts, see 9 U.S.C. §§ 1 to 16 and 

N.J.S.A. 2A:23B-1 to -32, express a general policy favoring arbitration. 

Atalese, 219 N.J. at 440 (citing AT&T Mobility LLC v. Concepcion, 563 U.S. 

333, 339 (2011)). "The public policy of this State favors arbitration as a means 

of settling disputes that otherwise would be litigated in a court." Badiali v. N.J. 

Mfrs. Ins. Grp., 220 N.J. 544, 556 (2015) (citing Cty. Coll. of Morris Staff v. 

Cty. Coll. of Morris Staff Ass'n, 100 N.J. 383, 390 (1985)). While enforcement 

is favored, it "does not mean that every arbitration clause, however phrased, will 

be enforceable." Atalese, 219 N.J. at 441 (citing Hirsch, 215 N.J. at 187).
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In Atalese, the Court held that "[t]he absence of any language in the 

arbitration provision that plaintiff [is] waiving [his or] her statutory right to seek 

relief in a court of law renders the provision unenforceable." Id. at 436

(emphasis in original). While no precise set of words must be included in the 

arbitration provision, the words that make up the clause "must be clear and 

unambiguous that a consumer is choosing to arbitrate disputes rather than have 

them resolved in a court of law." Id. at 447. 

The Atalese Court provided several examples of language that would meet 

its expectations of clarity and proper notice to a person that he or she was giving 

up his or her right to a jury trial. The Court noted the language in Griffin where 

this court upheld an arbitration clause, which expressed that "[b]y agreeing to 

arbitration, the parties understand and agree that they are waiving their rights to 

maintain other available resolution processes, such as a court action or 

administrative proceeding, to settle their disputes." Atalese, 219 N.J. at 445 

(alteration in original) (quoting Griffin v. Burlington Volkswagen, Inc., 411 N.J. 

Super. 515, 518 (App. Div. 2010)).

The Court offered other examples: where the arbitration clause stated "the 

plaintiff agreed 'to waive [her] right to a jury trial,'" and where the arbitration 

clause stated: "Instead of suing in court, we each agree to settle disputes . . . 
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only by arbitration," where "[t]here's no judge or jury. . . ." Id. at 444-45 (first 

alteration in original) (first quoting Martindale v. Sandvik, Inc., 173 N.J. 76, 81-

82, 96 (2002); and then quoting Curtis v. Cellco P'ship, 413 N.J. Super. 26, 31 

(App. Div. 2010)). The Court stated an arbitration "clause, at least in some 

general and sufficiently broad way, must explain that the plaintiff is giving up 

her right to bring her claims in court or have a jury resolve the dispute." Id. at 

447.

Here, the arbitration clause is deficient under the Atalese standard. 

Although the clause does reference final binding arbitration and provides a 

venue and arbitration forum, it lacks any mention of the waiver of any right or 

that plaintiff is foreclosed from bringing a claim in court. The signor of the 

agreement is not advised that arbitration is a waiver of the right to bring a suit 

in a judicial forum.

While the language suggested in Atalese to satisfy a knowing waiver of a 

basic right may be simple in its words, it is crucial in its significance. Without 

a reference to a waiver of a right, one cannot know with certainty "that 

arbitration is a substitute for the right to have one's claim adjudicated in a court 

of law." Id. at 442. Therefore, the arbitration clause here is unenforceable.
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Reversed and remanded for further proceedings. We do not retain 

jurisdiction.