SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1662-20

NIKKI CORDERO,

Plaintiff-Appellant,

v.

FITNESS INTERNATIONAL, 

LLC, a/k/a LA FITNESS

INTERNATIONAL, LLC, 

RYAN FARLEY, LINA

ANDERSON, and GEORGE

WALKER,

Defendants-Respondents.

____________________________

Submitted October 18, 2021 – Decided November 10, 2021

Before Judges Vernoia and Firko.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Docket No. L-0641-18.

Smith Eibeler, LLC, attorneys for appellant 

(Christopher J. Eibeler, Meghan Chrisner-Keefe, and 

Lisa Ackerly Hernandez, on the briefs).

William F. Dahill (Dunnington, Bartholow & Miller,

LLP) of the New York bar, admitted pro hac vice, and 

NOT FOR PUBLICATION WITHOUT THE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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Olivera Medenica (Dunnington, Bartholow & Miller, 

LLP) attorneys for respondents Fitness International, 

LLC, and Lina Anderson (William F. Dahill and 

Olivera Medenica, on the brief).

PER CURIAM

Plaintiff Nikki Cordero appeals from the January 12, 2021 Law Division 

order dismissing her complaint asserting claims under the New Jersey Law 

Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -42, quid pro quo sexual 

harassment, sexual discrimination, and retaliation against defendants Fitness 

International, LLC, also known as LA Fitness International, LLC, and Lina 

Anderson (collectively referred to as defendants)1and compelling arbitration. 

For the reasons that follow, we reverse and remand.

I.

This matter comes before us for a second time. The parties are familiar 

with the procedural history and facts of this case and, therefore, they will not be 

repeated in detail here.2 We derive the following facts from the motion record 

1

 Defendants Ryan Farley and George Walker are not participating in this 

appeal.

2

 The chronology is set forth in this court's unpublished opinion entered on April 

10, 2019, in which we reversed the May 25, 2018 Law Division order, denying

defendants' motion to dismiss the complaint and compel arbitration, and the July 

20, 2018 order denying their motion for reconsideration. Cordero v. Fitness 

Int'l, LLC, No. A-5542-17 (App. Div. Apr. 10, 2019) (slip op. at 2-4). We 
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on remand. Plaintiff is a former employee of LA Fitness. During her threemonth tenure at the Holmdel LA Fitness gym in 2016, plaintiff claims her 

supervisor, defendant George Walker, the trainees' manager, sexually harassed 

and assaulted her at work. According to plaintiff, defendants collectively

created a hostile work environment and discriminated against her on the basis 

of her sex, resulting in her termination.

On March 3, 2016, plaintiff applied for an open sales counselor position 

with LA Fitness's Holmdel gym. She was twenty-two years old at the time and 

"had recently moved in with [her] mother." Plaintiff claims she applied for the 

position through an app called "Snagajob" and "attached [her] resume to the app 

. . . and . . . clicked submit."

Between March 3 and March 9, 2016, plaintiff received an invitation to 

interview for an open position from defendant Ryan Farley, the general manager 

at the Holmdel gym. Plaintiff interviewed onsite at the Holmdel gym with 

Farley and after the interview, she was invited for a second interview that day 

reversed and remanded for further proceedings and directed the trial court to 

consider the motion anew and enter a new order, together with a written or oral 

statement of reasons in conformity with Rule 1:7-4. Id. slip op. at 5. We 

incorporate, by reference, the facts stated in our prior opinion to the extent they 

are consistent with those developed on remand.
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with Ray Malki. At the conclusion of the second interview, plaintiff was offered 

the sales counselor position, which she accepted.

On March 9, 2016, plaintiff began her employment at the Holmdel 

location. During her new hire onboarding on her first day of work, plaintiff was 

seated across from Farley at his desk. Plaintiff was instructed to "sign a few 

things electronically . . . to start." She claimed:

the signature pad was right in front of me to my left. 

Like I said, he was sitting across from me looking at the 

computer and he was basically clicking away . . . I 

signed a few times just so I was able to start . . . my 

training for my job . . . . 

. . . . 

I did not physically see [what I was signing]. He 

basically just said, you know, in order for me to start, 

you know, I would have to, you know, sign these 

employment documents and then we would go on and 

start our training. So I signed -- I signed electronically 

the things that he told me to sign.

. . . .

After I signed all the stuff that he gave me to sign, he 

invited me to sit on his side of the desk where he was 

sitting and he pulled up the chair next to me. And at 

that point he was basically showing me, you know, all 

his clients that he -- potential clients that he had that he 

usually makes phone calls to every day to see if they 

want a membership. . . .
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While employed by LA Fitness, plaintiff alleges she repeatedly heard 

Walker and Farley make sexual comments regarding the Holmdel gym female 

employees and gym members. On March 27, 2016, plaintiff claims Walker 

approached her to inquire about her recent manicure while she was working at 

her desk. Walker then asked her, "Did you get your toes done too?" After 

responding "No," plaintiff avers Walker then stated, "Let me know when you 

get your toes done so I can suck them," and she responded, "[N]o thank you." 

Despite plaintiff's apparent discomfort with Walker's "unwelcomed sexual 

advance[s]," he "placed his hands on [plaintiff]'s waist from behind" and 

"grabbed and groped [her] breast." Walker then ostensibly stated "words to the 

effect of, 'I had a dream last night that I fucked you'" and threatened plaintiff 

"with words to the effect of[] 'I'm the boss around here! If I didn't like you, you 

would not be working here!'"

In her Law Division complaint, plaintiff also alleged she heard Walker 

referring to a female gym member as having a "nice ass and breasts," and stating 

to Farley, "[D]amn, I'd hit that." Feeling "intimidated by . . . Walker's behavior 

and comments[,]" plaintiff "changed her work wardrobe to long, baggy-fitting 

sweaters and other clothes" in order to "draw less attention from . . . Walker."
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After this interaction, plaintiff immediately informed both her direct 

supervisor, Farley, via text message, and her mother of the incident. Because 

she felt unsafe, plaintiff went outside the Holmdel gym because no management 

personnel were inside. Plaintiff's mother then contacted the police, who arrived

at the Holmdel gym shortly thereafter to take plaintiff's statement and speak with 

Walker. Plaintiff left work early that day after being interviewed by the police

and felt "tremendous anxiety." Later that day, the police called plaintiff and 

advised, "Walker had been arrested for criminal sexual contact and that a 'no 

contact' order had been issued." Plaintiff proceeded to advise Farley of the no 

contact order.

On March 29, 2016, plaintiff returned to work, where she was informed 

by Farley that "Walker would be transferred to . . . [another] LA Fitness' gym

location." After her meeting with Farley, plaintiff attempted to file an incident 

report with LA Fitness's human resources manager, defendant Lina Anderson, 

who "advised [p]laintiff that the operations manager is responsible for filing an 

incident report[,]" and he should be contacted directly. Plaintiff contacted the 

operations manager and reported the March 27, 2016 incident to him. An 

incident report was filed with human resources. Despite her many attempts "to 

learn the status of her complaint and whether there would be an investigation," 
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plaintiff was never informed about whether defendants took any action in 

response to her incident report.

On May 10, 2016, plaintiff received a phone call from Anderson and 

Malki advising she was terminated. According to plaintiff, Anderson stated, 

"that situation shouldn't have affected your work." Walker then returned to work 

at the Holmdel gym and allegedly continued his untoward behavior to women.

On July 11, 2017, "Walker was charged with criminal sex charges after he 

allegedly groped a female gym member . . . at the Holmdel [g]ym." On January 

26, 2018, plaintiff filed her complaint in the Law Division. As stated in our 

prior opinion, defendants filed a motion to dismiss the complaint and compel 

arbitration. We reversed the May 25, 2018 order denying defendants' motion 

and the July 20, 2018 order denying their motion for reconsideration. On 

remand, we directed the trial court "to consider the motion anew and enter a new 

order, together with a written or oral statement of reasons in conformity with 

Rule 1:7-4."

Following remand, a different trial court was assigned this matter. 

Consistent with our decision, the trial court permitted "limited discovery" on the 

issues regarding arbitration and conducted a plenary hearing in order to assess 

credibility issues. The parties exchanged documents and conducted depositions
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prior to the hearing. On July 22 and 31, 2020, the trial court held a plenary 

hearing "for the limited purpose of determining whether or not the parties have 

entered into a binding enforceable arbitration agreement in relation to 

[plaintiff's] claims."

Plaintiff and two representatives of LA Fitness testified at the hearing. 

After the conclusion of the hearing, the trial court allowed post-hearing briefing. 

On January 11, 2021, the trial court granted defendants' motion to compel 

arbitration and dismissed plaintiff's complaint without prejudice. In its written 

eleven-page statement of reasons, the trial court found:

Plaintiff answered [defendant LA Fitness's] job posting 

using the website Snagajob. She completed and signed 

[the] [a]pplication for [e]mployment remotely.

The [a]pplication for [e]mployment included an 

[a]rbitration and [d]ispute [r]esolution [a]greement 

. . . . The text instructed her to read and sign the 

[a]greement “as a condition of consideration for 

employment with Fitness International . . . ." 

. . . . 

[The arbitration agreement] contained a block for 

electronic signature – separate from the signature block 

for the application itself. There is no dispute that 

[plaintiff] completed the electronic signature for this 

[d]ispute [r]esolution [a]greement portion of the 

application. An electronic notification – referring to an 

IP address – verifies her use of the electronic signature 

block from a remote computer.
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. . . . 

The [c]ourt finds, on the basis of the evidence 

now before it, that . . . [p]laintiff freely assented to the 

[d]ispute [r]esolution [a]greement . . . when she was 

presented with and signed the same in connection with 

the [a]pplication for [e]mployment. The record is 

undisputed that a complete form of the [d]ispute 

[r]esolution [a]greement was contained within the 

[a]pplication for [e]mployment; that [plaintiff] 

executed the electronic signature – separately from the 

application itself – signifying her assent to its terms; 

and the [a]greement itself not only advised her of the 

right to seek counsel, but afforded her an opportunity 

to reject the [a]greement and withdraw her application.

. . . . 

For these reasons, the [c]ourt finds the [d]ispute 

[r]esolution [a]greement is an enforceable contract, 

binding on [plaintiff] and applicable to the claims 

asserted in her action. There has never been an issue 

presented in this case concerning whether the terms of 

such agreement are sufficiently clear to give rise to an 

enforceable waiver of the right to proceed in a court.

A memorializing order was entered. This appeal ensued.

On appeal, plaintiff presents the following arguments for our 

consideration:

POINT I: [PLAINTIFF] DID NOT KNOWINGLY 

AND VOLUNTARILY AGREE TO WAIVE HER 

STATUTORY RIGHT TO A JURY TRIAL.

A. The Employment Application [I]s Not [A]

Contract.
10 A-1662-20

B. The Arbitration Agreement [I]s Not [A] StandAlone Contract.

C. Appellant Did Not Knowingly [A]nd Voluntarily 

Waive Her Right [T]o Sue.

D. The Court Declined [T]o Analyze Whether [T]he 

Documents Signed During [Plaintiff's] 

[Onboarding] Were Binding.

POINT II: [PLAINTIFF] DID NOT WAIVE HER 

RIGHT TO A JURY TRIAL ON CLAIMS FOR 

INJUNCTIVE RELIEF UNDER THE [NJ]LAD.

II.

Orders compelling or denying arbitration are treated as final orders for 

purposes of appeal. R. 2:2-3(3); GMAC v. Pittella, 205 N.J. 572, 582 n.6 (2011). 

The validity of an arbitration agreement is a question of law. Atalese v. U.S. 

Legal Servs. Grp., L.P., 219 N.J. 430, 446 (2014) (citing Hirsch v. Amper Fin. 

Servs., LLC, 215 N.J. 174, 186 (2013)). Accordingly, the appellate court applies 

a de novo standard of review when determining the enforceability of arbitration 

agreements. Goffe v. Foulke Mgmt. Corp., 238 N.J. 191, 207 (2019) (citing 

Hirsch, 215 N.J. at 186). As such, we "need not give deference to the analysis 

by the trial court." Ibid. However, a trial court's factual findings are reviewed 

for an abuse of discretion. See Cumberland Farms, Inc. v. N.J. Dep't of Env't. 

Prot., 447 N.J. Super. 423, 437-38 (App. Div. 2016). "The general rule is that 
11 A-1662-20

findings by the trial court are binding on appeal when supported by adequate, 

substantial, credible evidence." Ibid. (quoting Seidman v. Clifton Sav. Bank, 

S.L.A., 205 N.J. 150, 169 (2011)).

Both the Federal and the New Jersey Legislatures have "enunciate[d] 

federal and state policies favoring arbitration." Atalese, 219 N.J. at 440

(citations omitted); see also Martindale v. Sandvik, Inc., 173 N.J. 76, 92 (2002) 

("[T]he affirmative policy of this State, both legislative and judicial, favors 

arbitration as a mechanism of resolving disputes." (citing Barcon Assocs., Inc. 

v. Tri-Cnty. Asphalt Corp., 86 N.J. 179, 186 (1981))).

The Federal Arbitration Act (FAA), 9 U.S.C.A. § 1 -307, requires "courts 

[to] place arbitration agreements on equal footing with all other contracts." 

Skuse v. Pfizer, Inc., 244 N.J. 30, 47 (2020) (internal quotation marks omitted) 

(quoting Kindred Nursing Ctrs. Ltd. P'ship v. Clark, 581 U.S. ___, 137 S. Ct. 

1421, 1424 (2017)). Under the FAA, a state "may not 'subject an arbitration 

agreement to more burdensome requirements than those governing the formation 

of other contracts,'" or invalidate the agreement through "state-law 'defenses that 

apply only to arbitration or that derive their meaning from the fact that an 

agreement to arbitrate is at issue.'" Ibid. (first quoting Leodori v. CIGNA Corp., 

175 N.J. 293, 302 (2003)); and then quoting Atalese, 219 N.J. at 441). The FAA, 
12 A-1662-20

however, does not bar all state-law defenses and "specifically permits states to 

regulate contracts, including contracts containing arbitration agreements under 

general contract principles." Ibid. (quoting Martindale, 173 N.J. at 85).

Similarly, the New Jersey Legislature codified its own endorsement of 

arbitration agreements in the New Jersey Arbitration Act (NJAA), N.J.S.A. 

2A:23B-1 to -36. See Hojnowski v. Vans Skate Park, 187 N.J. 323, 342 (2006). 

The statute was enacted to "advance arbitration as a desirable alternative to 

litigation and to clarify arbitration procedures in light of the developments of 

the law in this area," Assemb. Judiciary Comm. Statement to S. 514 1 (Dec. 9, 

2002), and "is nearly identical to the FAA," Arafa v. Health Express Corp., 243 

N.J. 147, 167 (2020) (citing Atalese, 219 N.J. at 440). The NJAA provides that 

"[a]n agreement contained in a record to submit to arbitration any existing or 

subsequent controversy arising between the parties to the agreement is valid, 

enforceable, and irrevocable except upon a ground that exists at law or in equity 

for the revocation of a contract." N.J.S.A. 2A:23B-6(a).

Consequently, New Jersey courts "may 'regulate [arbitration] agreements, 

including those that relate to arbitration, by applying its contract-law principles 

that are relevant in a given case.'" Skuse, 244 N.J. at 47 (quoting Leodori, 175 

N.J. at 302). When reviewing a motion to compel arbitration, courts apply a 
13 A-1662-20

two-pronged inquiry: (A) whether there is a valid and enforceable agreement to 

arbitrate disputes; and (B) whether the dispute falls within the scope of the 

agreement. Martindale, 173 N.J. at 83, 92. 

Plaintiff here contends the arbitration agreement is not a valid and 

enforceable contract because the agreement: (1) was not "in writing"; (2) was 

not divisible from the employment application, which is not a contract per the 

application's disclaimer; and (3) was executed without her knowing and 

voluntary consent. First, plaintiff argues that defendants conditioned the 

agreement to "require such a document to be executed[] 'in writing.'"

"I understand that . . . this document . . . [does not] constitute[] an 

employment contract unless a specific document to that effect is executed by 

both the employer and myself, in writing." (emphasis added). Plaintiff 

specifically notes that the employment application was "online only, . . . not in 

a document[,] . . . [defendant Bryant's] electronic signature . . . was inserted[,] 

[and] . . . [plaintiff] never signed the employment application in writing."

We analyze the term "in writing" in the context of the agreement under 

review. A "writing" is "[a]ny intentional recording of words in a visual form, 

whether in handwriting, printing, typewriting, or any other tangible form . . . 

includ[ing] hard-copy documents, electronic documents on computer media, 
14 A-1662-20

audio and videotapes, e-mails, and any other media on which words can be 

recorded." Writing, Black's Law Dictionary (11th ed. 2019).

Our Supreme Court has routinely upheld the use of electronic documents 

and signatures to uphold a contract. See Skuse, 244 N.J. at 55 n.2 ("[E]lectronic 

. . . agreements are considered to be writings because they are printable and 

storable." (quoting Feldman v. Google, Inc., 513 F. Supp. 2d 229, 236 (E.D. Pa. 

2007))); Shelton v. Restaurant.com, Inc., 214 N.J. 419, 439 (2013) (rejecting the 

argument that an electronic, consumer contract between parties cannot be 

considered a contract because it was not "in writing," pursuant to the Plain 

Language Act, N.J.S.A. 56:12-1 to -13); Caspi v. Microsoft Network, L.L.C., 

323 N.J. Super. 118, 125 (App. Div. 1999) ("[E]lectronic versus printed[,] . . . 

in any sense that matters, there is no significant distinction."); see also N.J.S.A. 

12A:12-7(a) (stating an electronic consumer contract or signature may not "be 

denied legal effect or enforceability solely because it is in electronic form"). 15 

U.S.C.A. § 7001(a) ("[A] signature, contract, or other record relating to [a] 

transaction may not be denied legal effect, validity, or enforceability solely 

because it is in electronic form[] [or] . . . because an electronic signature or 

electronic record was used in its formation.").
15 A-1662-20

Here, the fact the application was available online, included an electronic 

signature, and was never physically signed by plaintiff, permits only a 

conclusion that the arbitration agreement constituted an "intentional recording 

of words in a visual form," i.e., "in writing." Writing, Black's Law Dictionary

(11th ed. 2019).

Second, plaintiff argues the trial court erred in its "factual finding that the 

[a]rbitration [a]greement was 'contained within the [a]pplication for 

[e]mployment'" but was divisible from the application for purposes of enforcing 

the agreement's arbitration provisions. An employer may not assert "its written 

rules and regulations were not contractual and then argue, through reference to 

the same materials, that the employee contracted away a particular right." 

Morgan v. Raymours Furniture Co., 443 N.J. Super. 338, 342-43 (App. Div. 

2016).

In Woolley v. Hoffman-La Roche, Inc., our Supreme Court held that a 

company manual "impos[es] an obligation on the employer to abide by the terms 

of [its] [employee] manual." Wade v. Kessler Inst., 172 N.J. 327, 340 (2002) 

(citing Woolley, 99 N.J. 284, 292 (1995)). Employers, however, may avoid such 

obligations by including in its manuals "a prominent disclaimer of the 

contractual nature of a handbook." Morgan, 443 N.J. Super. at 342.
16 A-1662-20

But an employer may not "seek both the benefit of its disclaimer . . . while 

insisting that [its materials were] contractual when it suits its purposes." Ibid.

(citation omitted). In Morgan, where the plaintiff was terminated after refusing 

to sign a stand-alone arbitration agreement, we determined the prominent 

disclaimer included in the employee handbook precluded enforcement of the 

arbitration agreement contained in the same handbook. 433 N.J. Super. at 343. 

"By inserting such a waiver provision in a company handbook, which, at the 

time, the employer insisted was not 'promissory or contractual,' an employer 

cannot expect—and a court, in good conscience, will not conclude—that the 

employee clearly and unambiguously agreed to waive the valued right to sue." 

Ibid. However, a stand-alone arbitration agreement will be enforced by the 

court. Id. at 344.

Plaintiff, relying on our decision in Morgan, where the disclaimer 

included in the employee handbook precluded enforcement of the unsigned 

arbitration agreement included in same, asserts the disclaimer within defendants' 

employment application disclaimed the application's arbitration agreement. 

"[A]n arbitration agreement is unenforceable when it is contained in a document 

that disclaims [it] is a contract." Plaintiff relies on the fact that the trial court 
17 A-1662-20

itself recognized that the arbitration agreement was in fact included in the 

employment application.3

However, our Supreme Court has previously held an arbitration agreement 

contained within an employment application is a stand-alone contract. In 

Martindale, where the plaintiff argued an arbitration agreement contained within 

an employment application to be unenforceable because the agreement was not 

an employment contract, the Supreme Court held an arbitration "agreement is 

complete in and of itself and need not be part of a larger employment contract." 

173 N.J. at 86. "[T]he question of enforceability is determined not on the basis 

of whether the arbitration agreement is contained in an application for 

employment or in an employment contract, but rather whether the arbitration 

provision qualifies as a valid and enforceable contract." Id. at 87.

Here, the trial court found the agreement, standing on its own, to be a valid 

and enforceable contract and noted the agreement had its own separate and 

distinct block for electronic signatures. Importantly, unlike in Morgan, where 

3

 Although the trial court did in fact recognize the agreement was contained 

within in the application for employment, it distinguished the application's 

disclaimer from that in Morgan, determining the disclaimer in Morgan to have 

been broader than defendant's arbitration agreement, "contain[ing] language to 

the effect that the entire contents of the document did not give rise to an 

enforceable employment contract."
18 A-1662-20

the employee's signature "only established that the employee had received a 

copy of the same and did not evidence agreement to any of its terms," plaintiff's 

signature here ostensibly established both receipt of the agreement as well as

her agreement with its terms. Thus, plaintiff's consent to the agreement is 

distinct and separate from that of the disclaimer. Because the trial court found 

the agreement was a stand-alone arbitration agreement, and thus not limited by 

the application's disclaimer, the sole "question of [its] enforceability is 

determined . . . [by] whether the arbitration provision qualifies [on its own] as a 

valid and enforceable contract." Martindale, 173 N.J. at 87.

Third, plaintiff argues the arbitration agreement itself is not a valid 

contract because it was executed without her knowledge or consent. Only the 

trial court, and not the arbitrator, may determine whether a valid arbitration 

agreement in fact exists. See Martindale, 173 N.J. at 83. An arbitrator is not 

empowered to decide disputes related to the parties' agreement "unless and until 

the trial court initially resolves the issues of fact pertaining to the formation of 

the arbitration provision, and determines the parties agreed to arbitrate their 

claims." Knight v. Vivint Solar Dev., LLC, 465 N.J. Super. 416, 428 (App. Div. 

2020), cert. denied, 246 N.J. 222 (2021), and cert. denied, 246 N.J. 223 (2021). 

Under our State's defined contract-law principles, a valid and enforceable 
19 A-1662-20

agreement requires: (1) consideration;4(2) a meeting of the minds; and (3) 

unambiguous consent. See Atalese, 219 N.J. at 442-45. Additionally, if the 

arbitration agreement is a contract of adhesion, the court will not enforce the 

agreement if the agreement is unconscionable.5 Vitale v. Schering-Plough 

Corp., 447 N.J. Super. 98, 111 (App. Div. 2016).

An arbitration agreement, like any other contract, requires a meeting of 

the minds. A meeting of the minds, i.e., mutual assent, requires the parties to 

have both: (1) reasonable notice of the agreement, See Hoffman v. Supplements 

Togo Mgmt., LLC, 419 N.J. Super. 596, 607 (App. Div. 2011); and (2) "an 

understanding of the terms to which they have agreed," Atalese, 219 N.J. at 442.

4

 Our Supreme Court has held "that the creation of an employment relationship, 

which is achieved when the employer agrees to consider and/or agrees to hire 

the applicant for employment, is sufficient consideration to uphold an arbitration 

agreement contained in an employment application." Martindale, 173 N.J. at 88

(citations omitted) (finding defendants' consideration of plaintiff's application 

to be adequate consideration).

5

 "Whether an employment provision is enforceable depends on an analysis of 

the subject of the provision, the sophistication of the employee, and whether the 

employee has some bargaining power." Vitale, 447 N.J. Super. at 111 (citing 

Martindale, 173 N.J. at 90). Generally, an arbitration agreement for employment 

is enforceable because "[a]lthough the parties were in an unequal bargaining 

position, [applicants] [are] entitled to reject the disclaimer and seek employment 

elsewhere." Ibid. As such, courts will generally only find an arbitration 

agreement unenforceable if the agreement violates public policy. Ibid.
20 A-1662-20

An arbitration agreement "is not enforceable unless the [parties] ha[ve] 

reasonable notice of its existence." Wollen v. Gulf Stream Restoration & 

Cleaning, LLC, __ N.J. Super. ___, ___ (App. Div. July 9, 2021) (slip op. at 19) 

(citing Hoffman, 419 N.J. Super. at 609). A party does not have a reasonable 

notice of an arbitration agreement where the agreement is "proffered unfairly[] 

or . . . design[ed] to conceal or de-emphasize its provisions" through the 

application's "style[,] . . . mode of presentation, or the placement of the 

[agreement]." Skuse, 244 N.J. at 55 (citing Caspi, 323 N.J. Super. at 125).

If a party has reasonable notice of an arbitration agreement, the party may 

not claim a lack of notice for failure to read it. "[A]s a general rule, 'one who 

does not choose to read a contract before signing it cannot later relieve himself 

of its burdens.'" Skuse, 244 N.J. at 54 (quoting Riverside Chiropractic Grp. v. 

Mercury Ins. Co., 404 N.J. Super. 228, 238 (App. Div. 2008); see also Goffe, 

238 N.J. at 212 ("[T]he argument that [a] plaintiff did not understand the import 

of the arbitration agreement and did not have it explained to her by the 

[employer] is simply inadequate to avoid enforcement of [the] clear and 

conspicuous arbitration agreement[ ] that [she] signed." (citing Borough of E. 

Caldwell v. Borough of Caldwell, 26 N.J. 9, 24-25 (1958))).
21 A-1662-20

We have recognized that electronic or online "contracts are no longer a 

novel concept." Wollen, __ N.J. Super. at __ (slip op. at 14). The enforceability 

of an electronic contract "often turns on whether the agreement is characterized 

as a 'scrollwrap,' 'sign-in wrap,' 'clickwrap,' or 'browsewrap' – or a hybrid 

version of these electronic contract types." Id. at __ (slip op. at 15) (citing 

Berkson v. Gogo LLC, 97 F. Supp. 3d 359, 394-401 (E.D.N.Y. 2015)); see also

ibid. (defining the online contract characterizations). But regardless of the 

contract's characterization, "the pertinent inquiry is whether the user was 

provided with reasonable notice of the applicable terms, based on the design and 

layout of the [application]." Id. at ___ (slip op. at 17). "In that regard, 

[electronic] contracts are not all that different from traditional, written contracts 

containing arbitration provisions." Ibid.

A "scrollwrap" agreement is generally sufficient to show reasonable 

notice. A "scrollwrap" agreement requires "users to physically scroll through 

an [electronic] agreement and click on a sperate 'I agree' button in order to assent 

to the terms and conditions of the [application]." Id. at ___ (slip op. at 15) 

(quoting Berkson, 97 F. Supp. 3d at 394-401). In Caspi, where prospective 

subscribers had to view multiple computer screens of information, including a 

membership agreement with a forum selection clause, and registration could 
22 A-1662-20

only proceed after the prospective subscriber clicked "I Agree" after having the 

opportunity to scroll through view the full membership agreement, the appellate 

court held the plaintiffs had reasonable notice. 323 N.J. Super. at 122, 125. 

Here, defendants' application and arbitration agreement consisted of a 

"scrollwrap" agreement. As such, plaintiff should have had reasonable 

knowledge of the agreement as required to constitute a meeting of the minds. 

An arbitration agreement, like any other contract, requires a meeting of the 

minds. A meeting of the minds, i.e., “[m]utual assent[,] requires that the parties 

have an understanding of the terms to which they have agreed.” Atalese, 219 

N.J. at 442.

Because an arbitration agreement waives a constitutional right, "the right 

to pursue a case in a judicial forum, 'courts take particular care in assuring the 

knowing assent of both parties to arbitrate, and a clear mutual understanding of 

the ramifications of that assent.'" Atalese, 219 N.J. at 442-43 (quoting NAACP 

of Camden Cnty. E. v. Foulke Mgmt. Corp., 421 N.J. Super. 404, 425 (App. Div. 

2011)). "The point is to assure that the parties know that in electing arbitration 

as the exclusive remedy, they are waiving their time-honored right to sue." 

Marchak v. Claridge Commons, Inc., 134 N.J. 275, 282 (1993). As such, to 

show mutual assent to arbitrate, the terms must "be sufficiently clear to place 
23 A-1662-20

[an individual] on notice that he or she is waiving a constitutional or statutory 

right." Atalese, 219 N.J. at 443.

When analyzing the validity of an arbitration agreement, there are "no 

prescribed set of words [that] must be included . . . to accomplish a waiver of 

rights." Atalese, 219 N.J. at 447. "No particular form of words is necessary to 

accomplish a clear and unambiguous waiver of rights." Id. at 444. 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. Id. at 447; see Arafa, 243 N.J. at 172 (finding waiver "was 

knowing and voluntary in light of the . . . broad agreement to resolve 'all 

disputes' between the parties through binding arbitration"). In the employment 

setting in particular, an arbitration "provision must reflect that an employee has 

agreed clearly and unambiguously to arbitrate the disputed claim." Leodori, 175 

N.J. at 302.

Here, the terms of the agreement appear to be clear and unambiguous:

This [d]ispute [r]esolution [a]greement and the 

[d]ispute [r]esolution [r]ules and [p]rocedures affect 

your legal rights. You may wish to seek legal advice 

before signing this . . . [a]greement.

. . . .
24 A-1662-20

I AGREE AND ACKNOWLEDGE RECEIPT OF THE 

DISPUTE RESOLUTION RULES AND 

PROCEDURES.

I AGREE THAT I WILL RESOLVE ANY AND ALL 

CLAIMS OR CONTROVERSIES BETWEEN ME 

AND [DEFENDANTS] EXCLUSIVELY BY FINAL 

AND BINDING ARBITRATION IN MY 

INDIVIDUAL CAPACITY BEFORE A NEUTRAL 

ARBITRATOR INSTEAD OF ANY COURT ACTION 

OR JURY TRIAL WHICH I HEREBY EXPRESSLY 

FOREVER GIVE UP.

However, the party seeking to enforce an arbitration agreement must 

prove the nonmoving party knowingly and voluntarily assented to it. See

Atalese, 219 N.J. at 447 (quoting Garfinkel v. Morristown Obstetrics & 

Gynecology Assocs., 168 N.J. 124, 135 (2001)); Midland Funding LLC v. 

Bordeaux, 447 N.J. Super. 330, 336 (App. Div. 2016). Assent requires "some 

concrete manifestation of the [party's] intent as reflected in the text of the 

agreement itself." Leodori, 175 N.J. at 300 (quoting Garfinkel, 168 N.J. at 135). 

"[A] valid waiver results only from an explicit, affirmative agreement that 

unmistakably reflects the employee's assent." Id. at 303 (citing Garfinkel, 168 

N.J. at 135 (instructing when asked to enforce an arbitration agreement, "[t]he 

[c]ourt [may] not assume that employees intend to waive [their] rights")).

Although a party's signature is "not strictly required, a party's signature to 

an agreement is the customary and perhaps surest indication of assent." Id. at 
25 A-1662-20

306-07; see id. at 305 ("When one party . . . presents a contract for signature to 

another party, the omission of that other party's signature is a significant factor 

in determining whether the two parties mutually have reached an agreement."). 

Absent a signature, the party seeking to enforce an arbitration agreement must 

provide some other explicit or unmistakable "indication that the employee 

affirmatively had agreed to" and "intended to abide by th[e] [arbitration] 

provision." Id. at 305, 307. "Finding no such proof, [the court] must hold for 

plaintiff." Id. at 307.

A virtual signature is not an unmistakable indication of consent where the 

employee denies having signed the agreement. In Knight, the plaintiff asserted 

defendant had "neither displayed the [arbitration] provision nor explained its 

legal ramifications to her at any time." 465 N.J. Super. at 427. More 

importantly, she denied "checking any boxes on [defendant's] [application], 

including the box, which would otherwise indicate her assent to be bound by the 

terms of an arbitration provision." Ibid. We noted the importance of plaintiff's 

assertion, "from the outset of the litigation . . . that she never checked any boxes 

on the [application], including the arbitration provision" and defendant's failure 

to have "provided plaintiff with an electronic or hard copy of the [agreement] at 

any time." Id. at 427-28. Because "the trial court specifically noted there existed 
26 A-1662-20

'a factual issue' as to whether plaintiff checked the arbitration box," we 

concluded the plaintiff had "not 'sign[ed]' the arbitration agreement." Id. at 427.

Here, the trial court held "[t]he record is undisputed that . . . [plaintiff] 

executed the electronic signature . . . signifying her assent to its terms." In 

finding the record uncontroverted, the trial court relied primarily on the IP 

address6attached to the agreement's electronic signature, which "verifie[d] 

[plaintiff's] use of the electronic signature block from a remote computer." The 

court also gave considerable weight to the testimony of Mimi Stokesberry, the 

Vice President of Human Resources for LA Fitness, who developed the

application and onboarding process.

At the hearing, Stokesberry testified that in order to apply for a position 

at LA Fitness, "[t]he applicant would go to our public website," could apply 

"[f]rom any computer . . . [and] [or] even do it from their phone." After the 

applicant submits the application, "the[] [application] fills in the date and . . . 

shows [defendants'] the IP address from which [the application] was executed." 

When asked how she knew the IP address listed on plaintiff's application was 

6

 An IP address "acts like a literal address." Digital 101: What is an IP address 

and what does it mean?, LEADFORENSICS, https://www.leadforensics.com/

digital-101-what-is-an-ip-address-and-what-does-it-mean/ (last reviewed Oct. 

26, 2021). "Every online action involves an exchange of IP addresses." Ibid.
27 A-1662-20

not one of defendants' addresses, Stokesberry responded, "Because ours all start 

with [ten]."

Based on the proofs, there is no dispute that defendants' application 

contains plaintiff's name, personal information, and typed signature, i.e., her 

name typed "exactly the way it was typed in at the beginning of the application." 

"Stokesb[erry] testified this is the only application and it was the one used to 

hire [plaintiff], and there's no dispute that [the application] was filled out outside 

of LA Fitness." Saliently, defendants did not suggest that there was no dispute 

"[plaintiff] executed the electronic signature . . . signifying her assent to its 

terms."

Notwithstanding the documentary evidence, throughout her testimony at 

the hearing, plaintiff consistently disputed the fact that she completed

defendants' application:

Yes, it's my information, but I didn't put it there.

. . . .

I submitted [my] resume through Snagajob.

. . . .

I don't know [who put down, "Radius will travel to 

work [ten] miles"].

. . . .
28 A-1662-20

I don't know [if somebody made it up].

. . . .

It's not accurate [that I have a high school diploma or 

GED].

. . . .

I didn't [supply that information].

. . . .

[The information under "Reasons for leaving" was] on 

my resume.

. . . .

I do not know [how information about an interest in 

club staff got into the application].

. . . .

I do not know [how that information could have been 

inputted in here].

When asked whether she was aware if someone else filled out the defendants' 

application on her behalf, plaintiff responded she was unaware. Rather, plaintiff 

consistently asserted she had not applied for the position through defendants' 

website, but rather applied on a separate app. And, plaintiff claimed she applied 

for the position "on [her] telephone . . . [on] an app that [she] downloaded," 

"called Snagajob." According to plaintiff: 
29 A-1662-20

Snagajob . . . is basically an app that you download and 

it has many different employment opportunities and 

many different jobs, whatever category you want. You 

just put what you're looking for and a whole bunch of 

jobs come up and you're able to click on it and you're 

able to apply for it.

After downloading Snagajob, plaintiff claims she "started submitting 

applications to many different jobs and . . . places[,] [and] came across LA 

Fitness. So [she] attached [her] resume to the app . . . and . . . clicked submit 

and . . . submitted [her] resume to whoever posted the job." After considering

plaintiff's testimony, the trial court found she had "answered [defendants'] job 

posting using . . . Snagajob," even though this fact was not included in plaintiff's 

certification in opposition to defendant's motion.

Stokesberry admitted she was unaware of Snagajob. Although 

Stokesberry denied an applicant could use any other "website" to apply for a LA 

Fitness position, she acknowledged it was possible that the Holmdel gym could 

have advertised on Snagajob. She stated, "I don't know if managers out there 

are doing their own thing." Stokesberry claimed to "know that . . . VP's 

advertise, indeed we've given them the verbiage to use." Moreover, Stokesberry 

testified that the LA Fitness contract does not create a binding contract between 

the applicant and LA Fitness, and Stokesberry had even seen ads on Craigslist, 

which, when brought to her attention, were requested to be taken down.
30 A-1662-20

At the hearing, Farley testified that during the onboarding process, 

plaintiff sat across from his desk, the computer screen was facing him, and out 

of her sight. Farley also stated that plaintiff signed her name on an electronic 

signature pad, but he also admitted he had no independent recollection of 

plaintiff or her onboarding process—he simply testified as to his "general 

practices."

Based on our review of the record developed during the plenary hearing, 

we are constrained to reverse and remand this matter because we conclude there 

is a factual issue as to whether plaintiff typed the electronic signature. Knight, 

465 N.J. Super. at 427. The circumstances surrounding plaintiff's execution of 

the agreement is subject to conflicting interpretations based upon the record 

before us and does not present a clear expression of an explicit and voluntary 

agreement to forego the court system and be bound by arbitration and requires 

further factual findings by the trial court.

Moreover, the disclaimer states that "neither this document," which 

includes the putative arbitration agreement, "nor any offer of employment from 

the employer constitutes an employment contract unless a specific document to 

that effect is executed by both the employer and myself." (Emphasis added). 

Thus, the application itself suggests that binding contractual obligations would 
31 A-1662-20

be set forth in a separate "specific document" setting forth its terms, and, also 

declares that the application is not a binding contract. The Woolley disclaimer 

is unclear; it does not carve out the arbitration agreement from its disavowal of 

the application as a contract. For that reason, the disclaimer could be construed 

as ambiguous and misleading and, as a result, it could not be reasonably 

concluded plaintiff knowingly consented to a binding contractual obligation to 

arbitrate her claims.

On remand, because the trial court did not address whether the onboarding 

arbitration agreement allegedly signed without plaintiff's opportunity for review 

was a valid and binding contract, the trial court must make findings of fact and 

conclusions of law on the issues pertaining to the formation of the second 

arbitration provision before an arbitrator may be empowered to decide disputes 

related to the parties' agreement.

III.

Finally, plaintiff contends she did not waive her right to a jury trial on 

claims for injunctive relief under the NJLAD. Here, defendant's agreement 

includes "claims under federal, state and local statutory or common law, such as 

. . . the law of contract and law of tort." Plaintiff claims the arbitration 

agreement's language "provide[s] an express exception for 'claims by either 
32 A-1662-20

party for injunctive relief pending arbitration as provided by applicable state 

law.'" (emphasis added). No specific, applicable State law has been advanced 

by plaintiff—rather, her claim for injunctive relief appears to stem from the 

NJLAD's "overarching goal" to "eradicate[e] . . . the cancer of discrimination." 

(citing Fuchilla v. Layman, 109 NJ. 319, 334-35 (1988)). And, plaintiff argues 

under a plain reading, the arbitration agreement functionally requires that 

"claims by either party for injunctive relief" carve the entire claim from 

arbitration as it relates to liability and injunctive relief pending arbitration of the 

monetary damages.

In contrast, defendants contend that the applicable state law is N.J.S.A. 

2A:23B-8(b)(2), which states "[a]fter an arbitrator is appointed and is authorized 

and able to act . . . a party to an arbitration proceeding may move the court for

a provisional remedy only if the matter is urgent and the arbitrator is not able to 

act timely or the arbitrator cannot provide an adequate remedy." Here, because 

defendants allowed Walker to return to the Holmdel location after her 

employment ended, plaintiff seeks "injunctive relief to protect the rights of other 

victims of harassment." We note that plaintiff asserts this claim without having 

established defendants' liability under the NJLAD or other statutory or common 

law or identifying the individuals she deems need protection from harassment.
33 A-1662-20

The trial court determined the provision on which plaintiff "relies does 

not exempt from the [d]ispute [r]esolution [a]greement all claims for injunctive 

relief that may be afforded a litigant under applicable law" and "is simply not 

the injunctive relief [plaintiff] seeks in her lawsuit." On remand, the trial court 

may reconsider its decision after considering any additional evidence.

Reversed and remanded for further proceedings consistent with this 

opinion. We do not retain jurisdiction.