1

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the 

Clerk for the convenience of the reader. It has been neither reviewed nor approved by the 

Court. In the interest of brevity, portions of an opinion may not have been summarized.

Amy Skuse v. Pfizer, Inc. (A-86-18) (082509)

Argued February 3, 2020 -- Decided August 18, 2020

PATTERSON, J., writing for the Court.

In this appeal, the Court reviews the trial court’s decision dismissing plaintiff Amy 

Skuse’s complaint against her former employer, Pfizer, Inc., and ordering arbitration of 

her employment discrimination claims.

Pfizer’s Human Resources Department sent an e-mail to Pfizer employees at their 

corporate e-mail addresses announcing Pfizer’s five-page Mutual Arbitration and Class 

Waiver Agreement (Agreement) and included a link to that document. The following 

language appeared in bold font on the final page of the Agreement:

You understand that your acknowledgement of this Agreement 

is not required for the Agreement to be enforced. If you begin 

or continue working for the Company sixty (60) days after 

receipt of this Agreement, even without acknowledging this 

Agreement, this Agreement will be effective, and you will be 

deemed to have consented to, ratified and accepted this 

Agreement through your acceptance of and/or continued 

employment with the Company.

The e-mail also included a included a link to a document that listed “Frequently Asked 

Questions,” including “Do I have to agree to this?” to which the response indicated, “The 

Arbitration Agreement is a condition of continued employment with the Company. If 

you begin or continue working for the Company sixty (60) days after receipt of this 

Agreement, it will be a contractual agreement that binds both you and the Company.” 

The “FAQs” document also encouraged any employee who had “legal questions” about 

the Agreement “to speak to [his or her] own attorney.”

Additional e-mails assigned the “Mutual Arbitration and Class Waiver Agreement 

and Acknowledgment” as part of Pfizer’s module-based training program, noting that 

agreement to individual arbitration was a condition of employment, and included a link to 

launch that module, which consisted of four slides. The first slide noted that agreement 

to individual arbitration was a condition of employment; the second contained 
2

instructions for opening the Agreement; the third slide contained language similar to the 

final page of the Agreement (reproduced above); a box with an arrow pointing upward to 

that language instructed the employee to “CLICK HERE to acknowledge.” The fourth 

slide thanked the employee for reviewing the Agreement, provided an e-mail address for 

questions, and included a means to exit the “course.”

Pfizer terminated Skuse’s employment in August 2017, and Skuse filed a 

complaint alleging that Pfizer and the individual defendants violated the Law Against 

Discrimination by terminating her employment because of her religious objection to 

being vaccinated for yellow fever. Defendants moved to dismiss the complaint and to 

compel arbitration. Skuse opposed the motion, contending that she was not bound by 

Pfizer’s Agreement, arguing that she was asked only to acknowledge the Agreement, not 

to assent to it, and that she never agreed to arbitrate her claims.

The trial court dismissed Skuse’s complaint and directed her to proceed to 

arbitration in accordance with the Agreement. The Appellate Division reversed,

identifying three aspects of Pfizer’s communications to Skuse as grounds for its decision: 

Pfizer’s use of e-mails to disseminate the Agreement to employees already inundated 

with e-mails; its use of a “training module” or a training “activity” to explain the 

Agreement; and its instruction that Skuse click her computer screen to “acknowledge” 

her obligation to assent to the Agreement in the event that she remained employed for 

sixty days, not to “agree” to the Agreement. 457 N.J. Super. 539, 555-61 (App. Div. 

2019). The Court granted certification. 238 N.J. 374 (2019).

HELD: Pfizer’s Agreement and related communications informed Skuse that if she 

remained a Pfizer employee more than sixty days from her receipt of that Agreement, she 

was deemed to assent to it. Those communications clearly and unmistakably explained 

the rights that Skuse would waive by agreeing to arbitration, thus complying with waiverof-rights case law, and Pfizer’s delivery of the Agreement by e-mail did not warrant its 

invalidation. Pfizer’s use of the word “acknowledge” was appropriate in the 

circumstances of this case, given the terms of Pfizer’s arbitration policy and other 

expressions of assent that immediately preceded that request. Pfizer should not have 

labeled its communication explaining its arbitration agreement a “training module” or 

training “activity,” but that is not a basis to invalidate the Agreement. The Agreement 

was valid and binding, and the Court concurs with the trial court’s decision to enforce it.

1. Federal law specifically permits states to regulate contracts, including contracts 

containing arbitration agreements, under general contract principles. For any waiver-ofrights provision to be effective, the party who gives up rights must have full knowledge 

of his legal rights and intent to surrender those rights. New Jersey case law requires that 

a waiver-of-rights provision be written clearly and unambiguously. In an employment 

setting, employees must at least know that they have agreed to arbitrate all statutory 

claims arising out of the employment relationship or its termination. (pp. 18-23)
3

2. Applying those principles, Pfizer’s Agreement and its related communications clearly 

informed Skuse that by continuing to be employed for sixty days, she would waive her 

right to pursue employment discrimination claims against Pfizer in court. New Jersey 

contract law recognizes that in certain circumstances, conduct can constitute contractual 

assent. Pfizer informed employees, with the clarity that New Jersey’s waiver-of-rights 

law requires, that continued employment after the policy’s effective date would constitute 

acceptance of the Agreement’s terms. Further, as required by case law, Pfizer clearly 

explained to Skuse the rights that she would relinquish if she remained employed after 

the policy’s effective date and thereby assented to the Agreement’s terms. The 

Agreement’s language complied with the Court’s mandate in Atalese v. U.S. Legal 

Services Group, L.P., 219 N.J. 430, 446 (2014), that a waiver-of-rights provision clearly 

and unambiguously state that the plaintiff is “waiving her right to sue or go to court to 

secure relief.” Pfizer’s communications also explained in general terms what arbitration, 

the agreed-upon method of dispute resolution, would entail, with no confusing references 

to mediation as in Kernahan v. Home Warranty Administrator of Florida, Inc., 236 N.J. 

301, 323-26 (2019). Finally, Skuse’s LAD claim was indisputably included in the 

Agreement’s broad language describing the employment-related claims subject to 

arbitration, and it does not fall within the exceptions to that policy enumerated in the 

Agreement. (pp. 23-28)

3. The Court next considers the method by which Pfizer chose to deliver its Agreement 

and accompanying communications to Skuse. Even if Skuse were to contend that she did 

not review Pfizer’s e-mails and their attachments because of the volume of e-mails 

addressed to her -- which she does not -- her failure to review Pfizer’s communications 

would not invalidate the Agreement. Under case law, any contention by Skuse that she 

completed Pfizer’s e-mailed module without reading its contents or the documents linked 

to it would have no impact on the analysis. Moreover, no principle of New Jersey 

contract law bars enforcement of a contract because that contract is communicated by email, rather than by the transfer of a hard-copy document. And here, nothing in the emailed communications in this case concealed the Agreement or understated its 

importance. The Court does not share the Appellate Division’s view that Pfizer’s 

decision to communicate the Agreement and related materials to its employees by e-mail 

warrants invalidation of the Agreement. (pp. 28-33)

4. The Court agrees with the Appellate Division that Pfizer’s characterization of its 

slides summarizing the Agreement as “training” was a misnomer. When it disseminates 

an arbitration agreement, an employer may choose to use tools developed for its training 

program. The employer should not, however, label those communications as “training.”

Although a reference to “training” in an employer’s communication of an arbitration 

policy might be regarded as misleading an employee in a different setting, however, 

Pfizer’s use of the term does not invalidate the Agreement in the circumstances here. 

(pp. 33-34)
4

5. This case is distinguishable from Leodori v. CIGNA Corp., 175 N.J. 293, 305-07

(2003). Here, what Skuse was asked to “acknowledge” -- what she did “acknowledge” --

was her understanding that she “must agree” to the Agreement, and that whether or not 

she clicked the “acknowledge” button, she would be deemed to have “consented to, 

ratified and accepted” the Agreement through her continued employment at Pfizer. 

Although the word “acknowledge” could be vague or misleading in a different setting, it 

was an appropriate term as used here. (pp. 35-40)

The judgment of the Appellate Division is REVERSED, and the trial court’s 

order is REINSTATED.

JUSTICE ALBIN, concurring, is persuaded by the totality of the evidence that 

plaintiff clearly and unmistakably understood that she was agreeing to submit any 

disputed employment issue to an arbitrator rather than a court and notes that plaintiff has 

not raised the argument that the arbitration provision constituted an illicit, industry-wide 

contract of adhesion. Justice Albin cautions, however, that when every employment and 

consumer contract contains such a clause across an entire profession or industry, when 

employees and consumers have no choice but to waive their right to resolve their disputes 

in a judicial forum in order to get a job or buy a good, the Court will have to address a 

more profound question: Are such contracts of adhesion contrary to New Jersey’s most 

fundamental public policy -- the constitutional right to a civil jury trial -- and therefore 

unconscionable and unenforceable under the Federal Arbitration Act and its state 

counterpart? That is the great issue that will confront the Court, in Justice Albin’s view. 

In his concurrence, Justice Albin sets the stage for what is at stake.

CHIEF JUSTICE RABNER, dissenting, notes that the Appellate Division 

decision carefully parses the online “training module” defendant Pfizer used and explains 

why the module lacks clear and unmistakable proof that Pfizer’s employees agreed to 

waive the right to have their day in court. Chief Justice Rabner fears that today’s opinion 

not only sanctions what took place but also ushers in a new day for arbitration 

agreements. Going forward, Chief Justice Rabner asks, what employer will ask an 

employee to agree to settle a dispute through arbitration and waive the right to proceed in 

court if it is enough simply to ask the employee to acknowledge she received a statement 

of company policy and deem consent from her continuing to show up for work? More is 

required to show clear and unmistakable assent in any context, Chief Justice Rabner 

explains, and more should be required before employees are asked to give up their 

constitutional and statutory rights to have their day in court. 

JUSTICES LaVECCHIA, FERNANDEZ-VINA, and SOLOMON join in JUSTICE 

PATTERSON’s opinion. JUSTICE ALBIN filed a concurrence. CHIEF JUSTICE 

RABNER filed a dissent. JUSTICE TIMPONE did not participate.
1

SUPREME COURT OF NEW JERSEY

A-86 September Term 2018

082509

Amy Skuse,

Plaintiff-Respondent,

v.

Pfizer, Inc., John D. Witzig,

Paul Mangeot, and Connie Corbett,

individually, jointly, severally and/or

in the alternative,

Defendant-Appellants.

On certification to the Superior Court, 

Appellate Division, whose opinion is reported at

457 N.J. Super. 539 (App. Div. 2019).

Argued

February 3, 2020

Decided

August 18, 2020

Thomas A. Linthorst argued the cause for appellants

(Morgan, Lewis & Bockius and Jackson Lewis, attorneys; 

Thomas A. Linthorst, Sam S. Shaulson, John M. Nolan, 

Carla D. Macaluso, and Timothy M. McCarthy, on the 

briefs).

Alan H. Schorr argued the cause for respondent (Schorr 

& Associates, attorneys; Alan H. Schorr, on the briefs).

David R. Kott argued the cause for amici curiae New 

Jersey Business & Industry Association, Commerce and 

Industry Association of New Jersey, and New Jersey 

Chamber of Commerce (McCarter & English, attorneys; 
2

David R. Kott and Edward J. Fanning, Jr., of counsel and 

on the brief, and Steven H. Del Mauro, on the brief). 

Andrée P. Laney argued the cause for amicus curiae 

Employers Association of New Jersey (Ford & Harrison

and Employers Association of New Jersey, attorneys; 

Mark A. Saloman, of counsel and on the brief, and 

Jeffrey A. Shooman, on the brief). 

William D. Wright argued the cause for amicus curiae 

New Jersey Association for Justice (The Wright Law 

Firm, attorneys; William D. Wright and David T. Wright, 

on the brief).

Richard M. Schall argued the cause for amicus curiae 

National Employment Lawyers Association of New 

Jersey (Schall & Barasch, attorneys; Richard M. Schall, 

on the brief). 

Leah S. Robinson submitted a brief on behalf of amicus 

curiae Chamber of Commerce of the United States of 

America (Mayer Brown, attorneys; Leah S. Robinson,

Archis A. Parasharami, of the District of Columbia bar, 

admitted pro hac vice, and Daniel E. Jones, of the District 

of Columbia bar, admitted pro hac vice, on the brief).

Gavin J. Rooney submitted a brief on behalf of amicus 

curiae New Jersey Civil Justice Institute (Lowenstein 

Sandler, attorneys; Gavin J. Rooney and Justin Corbalis, 

on the brief).

JUSTICE PATTERSON delivered the opinion of the Court.

In this appeal, we review the trial court’s decision dismissing plaintiff 

Amy Skuse’s complaint against her former employer, Pfizer, Inc., and ordering 

arbitration of her employment discrimination claims.
3

In 2016, four years after it hired Skuse, Pfizer notified her of a new 

arbitration policy that would become a condition of her employment. Under 

that policy, if an employee continued to work for Pfizer for sixty days after 

receiving a copy of Pfizer’s Mutual Arbitration and Class Waiver Agreement 

(Agreement), that employee would be deemed to have assented to the

Agreement, waived the right to litigate in court several categories of 

employment-related claims, and agreed to arbitrate those claims. Skuse 

opened e-mails that linked to the Agreement, completed a “training module” 

regarding the arbitration policy, and clicked a box on her computer screen that 

asked her to “acknowledge” her obligation to assent to the Agreement as a 

condition of her continued employment after sixty days.

Skuse continued to work for Pfizer for another thirteen months. 

Following a dispute between Pfizer management and Skuse as to whether she 

should be required to receive a particular vaccine, Pfizer terminated her 

employment.

Skuse filed this action against Pfizer and three of its employees, 

asserting claims based on the Law Against Discrimination, N.J.S.A. 10:5-1 

to -49 (LAD). Pfizer moved to dismiss the complaint and compel arbitration. 

The trial court enforced Pfizer’s Agreement, dismissed the complaint, and 

ordered the parties to arbitrate Skuse’s claims.
4

The Appellate Division reversed the trial court’s determination. It held

that Pfizer’s communications to Skuse regarding the Agreement were 

inadequate to ensure that she knowingly and unmistakably agreed to arbitrate 

her claims and waive her right of access to the courts. Skuse v. Pfizer Inc., 

457 N.J. Super. 539, 561 (App. Div. 2019). The Appellate Division identified

three aspects of Pfizer’s communications to Skuse as grounds for its decision:

Pfizer’s use of e-mails to disseminate the Agreement to employees already 

inundated with e-mails; its use of a “training module” or a training “activity”

to explain the Agreement; and its instruction that Skuse click her computer 

screen to “acknowledge” her obligation to assent to the Agreement in the event 

that she remained employed for sixty days, not to “agree” to the Agreement. 

Id. at 555-61.

We conclude that Pfizer’s Agreement and related communications

informed Skuse that if she remained a Pfizer employee more than sixty days 

from her receipt of that Agreement, she was deemed to assent to it. We hold

that those communications clearly and unmistakably explained the rights that 

Skuse would waive by agreeing to arbitration, thus complying with our waiverof-rights case law. We further determine that Pfizer’s delivery of the 

Agreement by e-mail did not warrant its invalidation. We view Pfizer’s use of 

the word “acknowledge” -- in its request that Skuse click to “acknowledge” 
5

her obligation to arbitrate disputes with her employer if she remained a Pfizer 

employee sixty days later -- to be appropriate in the circumstances of this case, 

given the terms of Pfizer’s arbitration policy and other expressions of assent 

that immediately preceded that request. We concur with the Appellate 

Division that Pfizer should not have labeled its communication explaining its 

arbitration agreement a “training module” or training “activity,” but we do not 

view that as a basis to invalidate the Agreement.

Accordingly, we reverse the Appellate Division’s determination and 

reinstate the trial court’s judgment dismissing the complaint and ordering 

arbitration.

I.

A.

On May 5, 2016, Pfizer’s Human Resources Department sent an e-mail 

to Pfizer employees at their corporate e-mail addresses.

1

 The e-mail

announced Pfizer’s five-page Agreement and included a link to that document.

The first section of the Agreement, entitled “Mutual Arbitration 

Agreement,” provided:

1

 We derive our summary of the facts from the allegations of the complaint 

and the record presented to the trial court in connection with Pfizer’s motion to 

dismiss and to compel arbitration. 
6

Except as expressly set forth in section 3, titled, 

“Claims Not Covered by this Agreement,” all disputes, 

claims, complaints, or controversies (“Claims”) that 

you have now or at any time in the future may have 

against Pfizer and/or any of its parents, subsidiaries, 

affiliates, predecessors, successors, assigns, current 

and former officers, directors, employees, and/or those 

acting as an agent of the Company (which make up the 

definition of “Company”), or that the Company has 

now or at any time in the future may have against you, 

including claims relating to breach of contract, tort 

claims, wrongful discharge, discrimination and/or 

harassment claims, retaliation claims, claims for 

overtime, wages, leaves, paid time off, sick days, 

compensation, penalties or restitution, including but 

not limited to claims under the Fair Labor Standards 

Act (“FLSA”), Title VII of the Civil Rights Act of 1964 

(“Title VII”), the Age Discrimination in Employment 

Act (“ADEA”), the Worker Adjustment and Retraining 

Notification Act (“WARN”), the Equal Pay Act 

(“EPA”), the Americans with Disabilities Act 

(“ADA”), the Family and Medical Leave Act 

(“FMLA”), and any other claim under any federal, 

state, or local statute, constitution, regulation, rule, 

ordinance, or common law, arising out of and/or 

directly or indirectly related to your application for 

employment with the Company, and/or your 

employment with the Company, and/or termination of 

your employment with the Company (collectively 

“Covered Claims”), are subject to arbitration pursuant 

to the terms of this Agreement and will be resolved by 

arbitration and NOT by a court or jury. THE PARTIES 

HEREBY FOREVER WAIVE AND GIVE UP THE 

RIGHT TO HAVE A JUDGE OR JURY DECIDE ANY 

COVERED CLAIMS. Either party to this Agreement 

may make application to a court for temporary or 

preliminary injunctive relief in aid of arbitration or for 
7

the maintenance of the status quo pending arbitration, 

if the award to which the party may be entitled may be 

rendered ineffectual without such relief.

The following language appeared in bold font on the final page of the 

Agreement:

You understand that your acknowledgement of this 

Agreement is not required for the Agreement to be 

enforced. If you begin or continue working for the 

Company sixty (60) days after receipt of this 

Agreement, even without acknowledging this 

Agreement, this Agreement will be effective, and you 

will be deemed to have consented to, ratified and 

accepted this Agreement through your acceptance of 

and/or continued employment with the Company.

The May 5, 2016 e-mail stated that under the Agreement, “both 

colleagues and Pfizer agree that arbitration will replace state and federal courts 

as the place where certain employment disputes are ultimately decided,” and 

that “arbitrators will resolve the disputes, rather than judges or juries.” It also 

included a link to a document entitled “Mutual Arbitration and Class Waiver 

Agreement FAQs,” which listed “Frequently Asked Questions,” including:

4. Do I have to agree to this?

The Arbitration Agreement is a condition of continued 

employment with the Company. If you begin or 

continue working for the Company sixty (60) days after 

receipt of this Agreement, it will be a contractual 

agreement that binds both you and the Company.
8

5. Can I change any parts of the agreement that I do not 

like?

No, you cannot change any of the terms of the 

Arbitration Agreement.

6. Do I give up any rights under the Arbitration 

Agreement?

Please review the Arbitration Agreement carefully to 

fully understand its terms and conditions. By agreeing 

to the Arbitration Agreement through continuing your 

employment with Pfizer, you are giving up the right to 

bring employment-related claims covered by the 

Agreement against Pfizer in a court of law. Instead, 

you are agreeing to arbitrate those claims before a 

neutral arbitrator. You are also agreeing to bring those 

claims on an individual basis and not on a class action, 

collective action, or representative action basis. Pfizer 

is also giving up the right to bring employment-related 

claims covered by the Agreement against you in court 

and is agreeing to bring any such claims on an 

individual basis in arbitration.

The “FAQs” document informed employees that Pfizer “cannot provide 

you with legal advice about the legal impact” of the Agreement. It stated that

Pfizer encouraged any employee who had “legal questions” about the 

Agreement “to speak to [his or her] own attorney.” The “FAQs” document

also explained the details of the arbitration proceedings contemplated by the 

Agreement.
9

On May 5 and 6, 2016, as part of Pfizer’s “Power2Learn” module-based 

training program, Pfizer sent a second e-mail to approximately 28,540 Pfizer 

employees at their Pfizer e-mail addresses. In that e-mail, Pfizer advised each 

employee that he or she had been “assigned the activity, Mutual Arbitration 

and Class Waiver Agreement and Acknowledgment.” The e-mail stated that 

the employee had been assigned the training “activity” because “[a]s a 

condition of your employment with Pfizer, you and Pfizer agree to individual 

arbitration as the exclusive means of resolving certain disputes relating to your 

employment.” The e-mail added “[t]his agreement is contained in the Mutual 

Arbitration and Class Waiver Agreement. It is important that you are aware of 

the terms of this Agreement.”

In its second e-mail, Pfizer informed the employees that the due date for 

completing the “activity” was July 4, 2016, the date on which the Agreement 

would become effective.

The e-mail included a link by which the employee would launch the 

“Mutual Arbitration and Class Waiver Agreement” module, choose to proceed 

in English or Spanish, and review the module.

The module consisted of four slides. The first slide stated:

As a condition of your employment with Pfizer, you 

and Pfizer agree to individual arbitration as the 

exclusive means of resolving certain disputes relating 

to your employment. This agreement is contained in 
10

the Mutual Arbitration and Class Waiver Agreement. It 

is important that you are aware of the terms of this 

Agreement.

The next page contains the Mutual Arbitration and 

Class Waiver Agreement. You will be able to review 

and print the Agreement. You will then be asked to 

acknowledge your receipt of the Agreement.

The second slide instructed the employee to “[c]lick the ‘Resources’ tab 

in the upper-right corner to review the Agreement” and identified that tab with 

an arrow. The slide instructed that after opening the “Resources” tab, the 

employee “may print the Agreement and retain for your records.” It instructed 

that after reviewing the Agreement, the employee should “close the window to 

return to this page.”

The third slide stated:

I understand that I must agree to the Mutual Arbitration 

and Class Waiver Agreement as a condition of my 

employment. Even if I do not click here, if I begin or 

continue working for the Company sixty (60) days after 

receipt of this Agreement, even without acknowledging 

this Agreement, this Agreement will be effective, and I 

will be deemed to have consented to, ratified and 

accepted this Agreement through my acceptance of 

and/or continued employment with the Company.

Just below the language set forth above, a box with an arrow pointing

upward to that language instructed the employee to “CLICK HERE to 

acknowledge.”
11

The fourth slide thanked the employee “for reviewing the Mutual 

Arbitration and Class Waiver Agreement.” It provided an e-mail address for 

the employee to use if he or she had questions about the Agreement and 

instructed the employee to “[c]lick ‘Exit’ to exit this course.”

B.

In 2012, Pfizer hired Skuse to work as a flight attendant in its corporate 

aviation operations, based at its aviation facility in West Trenton. 

Skuse was an active Pfizer employee on May 5 and 6, 2016, when Pfizer 

sent its two e-mails to employees announcing its arbitration Agreement. 

Pfizer’s records indicate that Skuse received both e-mails. On June 9, 2016, 

Pfizer sent Skuse an e-mail confirming that she had completed the Mutual 

Arbitration and Class Waiver Agreement training module at 7:33 p.m. on that 

date.

The dispute that gave rise to this action concerned Pfizer’s policy 

requiring its corporate aviation flight attendants to be vaccinated for yellow 

fever. Skuse, a practicing Buddhist who has adhered to a vegan diet all her 

adult life, refused the yellow fever vaccine on the ground that it contained 

animal products. She states that during the first five years of her employment 

at Pfizer, she was never asked or pressured to be vaccinated for yellow fever.
12

According to Skuse, in April 2017, the two managers to whom she 

reported gave her “an ultimatum to receive the yellow fever vaccination” 

within thirty days “or be terminated.” She asserts that her managers ignored a 

letter from her doctor and her requests for exemptions from the vaccination 

requirement on religious and medical grounds, and that they persistently 

pressured her to be vaccinated or be terminated, prompting her to have a 

“breakdown from all of the threats.”

Skuse contends that she was granted medical leave but was not permitted 

to return to work at the conclusion of that leave, and that Pfizer refused to 

reasonably accommodate her request to be exempted from the vaccination 

requirement.

On August 11, 2017, Pfizer terminated Skuse’s employment.

II.

A.

Skuse filed a complaint against Pfizer, the two managers to whom she 

reported and a Pfizer human resources executive. Skuse alleged that Pfizer 

and the individual defendants violated the LAD by terminating her 

employment because of her religious objection to being vaccinated for yellow 

fever. She demanded compensatory and punitive damages, attorneys’ fees, and 

other relief.
13

Invoking the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 to 16, and the 

New Jersey Arbitration Act (NJAA), N.J.S.A. 2A:23B-1 to -36, Pfizer and the 

individual defendants moved to dismiss the complaint and to compel 

arbitration. 

Skuse opposed the motion, contending that she was not bound by 

Pfizer’s Agreement. She asked the court to assume for purposes of the motion 

that she “got the email and that she saw the screen that said, I acknowledge 

receipt of this policy.” Skuse argued, however, that in Pfizer’s 

communications on May 5 and 6, 2016, she was asked only to acknowledge 

the Agreement, not to assent to it, and that she never agreed to arbitrate her 

claims.

Citing the FAA and the NJAA, the trial court granted the motion filed by 

Pfizer and the individual defendants. The court noted that it was undisputed

that the Agreement covered Skuse’s LAD claims and that, if the Agreement 

were held to be binding, the claims would be subject to arbitration. The trial 

court concluded that Skuse assented to the Mutual Arbitration and Class 

Waiver Agreement module by clicking the “acknowledge” box that appeared

on the module’s third slide. Citing Jaworski v. Ernst & Young U.S. LLP, 441 

N.J. Super. 464 (App. Div. 2015), the court found that Skuse’s continued 

employment after the effective date of Pfizer’s arbitration policy constituted 
14

assent to arbitration in accordance with Pfizer’s Agreement. Accordingly, the 

trial court dismissed Skuse’s complaint and directed her to proceed to 

arbitration in accordance with the Agreement.

B.

Skuse appealed the trial court’s judgment. The Appellate Division 

granted amicus curiae status to the National Employment Lawyers Association

of New Jersey, the Employers Association of New Jersey, and the New Jersey 

Civil Justice Institute. Skuse, 457 N.J. Super. at 551.

The Appellate Division observed that under United States Supreme 

Court jurisprudence applying the FAA, state-law contract principles govern 

contract formation in a dispute over the arbitrability of a claim. Id. at 552 

(citing AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011)). The 

court recognized Leodori v. CIGNA Corp., 175 N.J. 293 (2003), as the state 

law “guiding precedent” on mutual assent and knowing and voluntary waiver 

of rights in arbitration agreements between employers and employees. Id. at 

552-53.

The Appellate Division noted a distinction between Leodori, in which 

the employer sought but did not obtain the employee’s physical signature on 

an “agreement” form, and this matter, in which the employer used a computer 

training module “to communicate and impose the terms of its mandatory 
15

arbitration policy.” Id. at 555. It concluded, however, that like the arbitration 

agreement in Leodori, the arbitration agreement in this case was not agreed to 

and was thus unenforceable. Id. at 555-61. The Appellate Division viewed

“the wording and method of Pfizer’s training module” to be “inadequate to 

substantiate an employee’s knowing and unmistakable assent to arbitrate and 

waive his or her rights of access to the courts.” Id. at 561. It therefore 

reversed the trial court’s judgment. Ibid.

C.

We granted Pfizer’s petition for certification. 238 N.J. 374 (2019). We 

also granted amicus curiae status to the New Jersey Association for Justice, the 

New Jersey Business & Industry Association, the Commerce and Industry 

Association of New Jersey, the New Jersey Chamber of Commerce, and the 

Chamber of Commerce of the United States of America. The National 

Employment Lawyers Association of New Jersey, the Employers Association 

of New Jersey, and the New Jersey Civil Justice Institute continue to 

participate as amici curiae.

III.

A.

Pfizer and the individual defendants argue that the trial court properly 

enforced a valid and binding arbitration agreement between it and its 
16

employee, Skuse. They cite Pfizer’s announcement of its arbitration policy in 

its May 5 and 6, 2016 e-mails, which provided a link to that Agreement. 

Pfizer and the individual defendants assert that when Skuse “acknowledged” 

the Agreement, she agreed to be bound by that Agreement, and that even if 

Skuse’s completion of the module was not sufficient to bind her to the 

Agreement’s terms, her continued employment for thirteen months thereafter 

unambiguously effected a waiver of her rights. They argue that any 

heightened standard imposed by New Jersey law for the waiver of rights in the 

employment arbitration setting would diverge from the requirements imposed 

by state law on other types of contracts, thus contravening the FAA as applied 

in Kindred Nursing Centers Ltd. Partnership v. Clark, 581 U.S.___, 137 S. Ct. 

1421 (2017).

B.

Skuse contends that the Appellate Division properly reversed the trial 

court’s determination. She states that New Jersey case law treats arbitration 

contracts as it treats any other contract and that, accordingly, this appeal does 

not implicate Kindred Nursing. Skuse argues that Pfizer did not ask her to 

“agree” to the Agreement, but only to acknowledge that she received the 

Agreement. To Skuse, that acknowledgement does not satisfy the standard 

prescribed by this Court in Leodori.
17

Skuse asserts that Pfizer’s notice to her that she would be “deemed to 

have consented to, ratified and accepted this Agreement through [her] 

acceptance of and/or continued employment with the Company” was likewise 

inadequate to express her individual assent to that Agreement. She urges that 

we hold that in the absence of an unambiguous agreement to arbitration, it is 

her subjective intent, not her assumed intent, that governs.

C.

Amici curiae New Jersey Business & Industry Association, Commerce 

and Industry Association of New Jersey, New Jersey Chamber of Commerce, 

Chamber of Commerce of the United States of America, Employers 

Association of New Jersey, and the New Jersey Civil Justice Institute urge that 

we reverse the Appellate Division’s judgment. Amici assert that to the extent 

that state law would impose a more exacting test for assent in an arbitration 

dispute than it does in other contractual settings, it would run afoul of the FAA 

and the Supreme Court’s decision in Kindred Nursing. Amici contend that 

under state contract law principles, Skuse assented to Pfizer’s Agreement when 

she clicked the box “acknowledging” her agreement and elected to remain

employed after the effective date of Pfizer’s arbitration policy.
18

D.

Amici curiae National Employment Lawyers Association of New Jersey

and New Jersey Association for Justice argue that the Appellate Division 

decision should be affirmed. Amici assert that Pfizer failed to demonstrate 

Skuse’s assent to its Agreement because she did nothing more than receive and 

acknowledge that Agreement. They contend that the communications between 

Pfizer and Skuse do not satisfy the contractual formation principles applied to 

all agreements under New Jersey law.

IV.

A.

“Whether a contractual arbitration provision is enforceable is a question 

of law, and we need not defer to the interpretative analysis of the trial or 

appellate courts unless we find it persuasive.” Kernahan v. Home Warranty 

Adm’r of Fla., Inc., 236 N.J. 301, 316 (2019). We review de novo the trial 

court’s determination that Skuse’s claims are subject to arbitration. See ibid.; 

Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 445-46 (2014).

B.

The FAA and the NJAA “enunciate federal and state policies favoring 

arbitration.” Atalese, 219 N.J. at 440; see also Concepcion, 563 U.S. at 339, 

346 (noting section 2 of the FAA reflects “a liberal federal policy favoring 
19

arbitration” and “the fundamental principle that arbitration is a matter of 

contract” (internal quotation marks and citations omitted)); Martindale v. 

Sandvik, Inc., 173 N.J. 76, 92 (2002) (recognizing “the affirmative policy of 

this State, both legislative and judicial, favors arbitration as a mechanism for

resolving disputes”).

Pursuant to the FAA, courts must “place arbitration agreements ‘on 

equal footing with all other contracts.’” Kindred Nursing, 137 S. Ct. at 1424 

(quoting DIRECTV, Inc. v. Imburgia, 577 U.S. ___, 136 S. Ct. 463, 468

(2015)); see also Arafa v. Health Express Corp., ___ N.J. ___, ___ (2020) (slip 

op. at 18) (noting in the FAA, “Congress intended to place arbitration 

agreements upon the same footing as other contracts” (internal quotation 

marks omitted) (quoting Goffe v. Foulke Mgmt. Corp., 238 N.J. 191, 208 

(2019)). Thus, a state may not “subject an arbitration agreement to more 

burdensome requirements than those governing the formation of other 

contracts.” Leodori, 175 N.J. at 302. “An arbitration clause cannot be 

invalidated by state-law ‘defenses that apply only to arbitration or that derive 

their meaning from the fact that an agreement to arbitrate is at issue.’” 

Atalese, 219 N.J. at 441 (quoting Concepcion, 563 U.S. at 339).

Notwithstanding the FAA’s preemptive effect, federal law “specifically 

permits states to regulate contracts, including contracts containing arbitration 
20

agreements under general contract principles.” Martindale, 173 N.J. at 85. 

New Jersey may “regulate agreements, including those that relate to 

arbitration, by applying its contract-law principles that are relevant in a given 

case.” Leodori, 175 N.J. at 302. Accordingly, we look to state-law principles 

generally applicable to contracts involving the waiver of rights as the 

governing law in this appeal. Atalese, 219 N.J. at 441.

V.

A.

Guided by contract principles stated in our case law, we determine 

whether Skuse assented to the arbitration of her LAD claims. 

In that inquiry, we first determine whether the terms of the Agreement 

itself and the language appearing in Pfizer’s explanatory materials satisfy New 

Jersey’s state law standard governing contractual waiver of rights. We next

consider whether the Appellate Division correctly concluded that the 

Agreement was unenforceable because Pfizer chose “an inadequate way for an 

employer to go about extracting its employees’ agreement” to arbitrate. Skuse, 

457 N.J. Super. at 542.
21

B.

1.

An arbitration agreement must be the result of the parties’ mutual assent, 

according to customary principles of state contract law. Atalese, 219 N.J. at 

442. Thus, “there must be a meeting of the minds for an agreement to exist 

before enforcement is considered.” Kernahan, 236 N.J. at 319. 

For any waiver-of-rights provision to be effective, the party who gives 

up rights must “have full knowledge of his legal rights and intent to surrender 

those rights.” Knorr v. Smeal, 178 N.J. 169, 177 (2003). When the waiver of 

rights is an agreement to arbitrate employment disputes, courts “require[] some 

concrete manifestation of the employee’s intent as reflected in the text of the 

agreement itself.” Leodori, 175 N.J. at 300 (quoting Garfinkel v. Morristown 

Obstetrics & Gynecology Assocs., P.A., 168 N.J. 124, 135 (2001)). “Our 

jurisprudence has stressed that when a contract contains a waiver of rights --

whether in an arbitration or other clause -- the waiver ‘must be clearly and 

unmistakably established.’” Atalese, 219 N.J. at 444 (quoting Garfinkel, 168 

N.J. at 132).

In Atalese, we invalidated an arbitration clause in a consumer contract 

that did not explain to the consumer that by signing the agreement, she waived 
22

her right to pursue her statutory claims in court. Id. at 445-48. We observed

that

[n]owhere in the arbitration clause is there any 

explanation that plaintiff is waiving her right to seek 

relief in court for a breach of her statutory rights. . . . 

The provision does not explain what arbitration is, nor 

does it indicate how arbitration is different from a 

proceeding in a court of law. Nor is it written in plain 

language that would be clear and understandable to the 

average consumer that she is waiving statutory rights. 

The clause here has none of the language our courts 

have found satisfactory in upholding arbitration 

provisions -- clear and unambiguous language that the 

plaintiff is waiving her right to sue or go to court to 

secure relief. 

[Id. at 446.]

Emphasizing “that no prescribed set of words must be included in an 

arbitration clause to accomplish a waiver of rights,” we held that 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.

In Kernahan, we reviewed a provision in a consumer contract entitled 

“Mediation” that addressed two different methods of alternative dispute 

resolution -- arbitration and mediation -- in a contradictory and confusing 

manner and identified the American Arbitration Association’s Commercial 
23

Mediation Rules as the exclusive method of resolving the parties’ disputes. 

236 N.J. at 323-26. We held that the provision’s “references to arbitration 

cannot be harmonized with the title of the section and the intended use of the 

Commercial Mediation Rules in order to give rise to an enforceable agreement 

to arbitrate,” and that its “small typeface, confusing sentence order, and 

misleading caption exacerbate the lack of clarity in expression.” Id. at 326. 

Given the “material discrepancies that call[ed] into question the essential terms 

of the purported agreement to arbitrate,” we found that there was no mutual 

assent and declined to compel arbitration. Id. at 327.

Our case law thus requires that a waiver-of-rights provision be written 

clearly and unambiguously. Atalese, 219 N.J. at 443; Leodori, 175 N.J. at 302. 

In an employment setting, employees must “at least know that they have 

‘agree[d] to arbitrate all statutory claims arising out of the employment 

relationship or its termination.’” Atalese, 219 N.J. at 447 (alteration in 

original) (quoting Garfinkel, 168 N.J. at 135).

2.

Applying those principles, we conclude that Pfizer’s Agreement and its

related communications clearly informed Skuse that by continuing to be 

employed for sixty days, she would waive her right to pursue employment 

discrimination claims against Pfizer in court. The Agreement, the e-mails, the 
24

“FAQs” document, and the module explained that an employee would assent to 

arbitration of covered disputes by virtue of his or her continued employment

for sixty days.

New Jersey contract law recognizes that in certain circumstances, 

conduct can constitute contractual assent. See, e.g., Martindale, 173 N.J. at 

88-89 (“[I]n New Jersey, continued employment has been found to constitute 

sufficient consideration to support certain employment-related agreements.”);

Weichert Co. Realtors v. Ryan, 128 N.J. 427, 436 (1992) (“An offeree may 

manifest assent to the terms of an offer through words, creating an express 

contract, or by conduct, creating a contract implied-in-fact.”). Indeed, in 

Jaworski, the Appellate Division enforced the employer’s agreement providing 

that an employee “indicates his or her agreement to the Program [mandating 

arbitration] and is bound by its terms and conditions by beginning or 

continuing employment” after a specific date. 441 N.J. Super. at 474-75. 

Pfizer unambiguously explained that an employee’s continued 

employment after the arbitration policy’s effective date would be deemed to 

constitute his or her assent to the arbitration policy. The Agreement stated, in 

bold font, that the employee’s acknowledgement of the Agreement was not 

required for that Agreement to be enforced, and that the employee would be 
25

“deemed to have consented to, ratified and accepted this Agreement” by 

accepting or continuing employment with Pfizer after the effective date. 

That message was underscored by Pfizer’s additional communications. 

The May 5, 2016 e-mail explained that “[a]ll covered colleagues will be bound 

by the agreement as part of their continued employment at Pfizer.” The 

“FAQs” page linked to that e-mail provided that “[t]he [a]rbitration 

[a]greement is a condition of continued employment with the Company. If you 

begin or continue working for the Company sixty (60) days after receipt of this 

Agreement, it will be a contractual agreement that binds both you and the 

Company.” In addition, the first of the four slides comprising the module 

stated that “[a]s a condition of [the employee’s] employment with Pfizer,” the 

employee agreed to “individual arbitration as the exclusive means of resolving 

certain disputes relating to your employment.”

Pfizer thus informed employees, with the clarity that our waiver-ofrights law requires, that continued employment after the policy’s effective date 

would constitute acceptance of the Agreement’s terms. It advised Skuse that if 

she remained employed by Pfizer after July 4, 2016, her conduct would 

constitute assent to arbitration in accordance with the Agreement’s terms. She 

had the option to leave her employment if it was unacceptable to her that most 
26

potential disputes between her and Pfizer would be arbitrated rather than 

resolved by a jury or judge.

Pfizer’s communications comported with our waiver-of-rights law in a 

second critical respect. As our decisions in Atalese and Kernahan require, 

Pfizer clearly explained to Skuse the rights that she would relinquish if she 

remained employed after the policy’s effective date and thereby assented to the 

Agreement’s terms. The Agreement provided that the claims affected would 

be resolved by arbitration, not “by a court or jury,” and -- in capital letters --

that the parties “forever waive and give up the right to have a judge or a jury 

decide any covered claims.” Pfizer’s May 5, 2016 e-mail stated that under the 

Agreement, “arbitration will replace state and federal courts as the place where 

certain employment disputes are ultimately decided,” and that arbitrators, 

“rather than judges or juries,” would resolve the disputes. The Agreement’s 

language complied with our mandate in Atalese that a waiver-of-rights 

provision clearly and unambiguously state that the plaintiff is “waiving her 

right to sue or go to court to secure relief.” 219 N.J. at 446.

Pfizer’s communications also explained in general terms what 

arbitration, the agreed-upon method of dispute resolution, would entail, with 

no confusing references to mediation as in Kernahan. Its Agreement, 

summarized on the “FAQs” page, briefly described an arbitration proceeding, 
27

defined the arbitrator’s role, explained the effect of an arbitrator’s decision, 

identified a specific arbitration organization as the administrator of its 

program, and designated that organization’s employment arbitration rules as 

the governing rules for the proceeding. Those communications informed 

Skuse “that there is a distinction between resolving a dispute in arbitration and 

in a judicial forum,” Atalese, 219 N.J. at 445, and made clear that if she 

assented, arbitration would be “the only means of dispute resolution 

permitted” to her, see Kernahan, 236 N.J. at 325-26.

Finally, Skuse’s LAD claim was indisputably included in the 

Agreement’s broad language describing the employment-related claims subject 

to arbitration, and it does not fall within the exceptions to that policy 

enumerated in the Agreement.

In sum, the terms of the Agreement, supported by the explanatory

documents that accompanied it, met the standard of clarity that our decisions 

impose in all respects. Those communications informed Skuse that by 

remaining employed at Pfizer, she would give up the right to pursue her LAD 

claims in court and would instead be required to submit those claims to 

arbitration as described in the Agreement. And the Agreement and Pfizer’s 

other communications left no question that Skuse’s continued employment 

would be deemed to constitute her assent, thus ensuring that her potential
28

employment discrimination claims against her employer would be resolved by 

arbitration.

C.

We next consider the method by which Pfizer chose to deliver its 

Agreement and accompanying communications to Skuse.

The Appellate Division premised its reversal of the trial court’s decision 

on three aspects of Pfizer’s communications with Skuse: its use of e-mail to 

convey important information to employees overwhelmed by too many

workplace e-mails, Skuse, 457 N.J. Super. at 555-57; its labeling of its slides 

summarizing the Agreement as a “training module” or training “activity,” id.

at 557; and its choice of the term “acknowledge,” rather than the term “agree” 

in the “click box” at the presentation’s end, id. at 558-59. We consider each in 

turn.

1.

The Appellate Division observed that employees who work in offices are 

“inundated” with incoming e-mails and that they “send out a large number of 

their own e-mails.” Id. at 556. The court took judicial notice that in order to 

deal with the volume of e-mails that they receive, “people frequently skim (or 

scroll through without reading) written material sent to them digitally,” such as 
29

computer applications downloaded online, or “impersonal messages or 

announcements from organizations.” Ibid.

The Appellate Division held that the terms used in Pfizer’s e-mails in 

“assigning” the “training module” actually “dilute[d] the legal significance and 

necessary mutuality of the contractual process.” Id. at 557. It expressed doubt 

that all Pfizer employees took the time to read the Agreement linked to the 

module. Id. at 558. It viewed Pfizer’s use of e-mail as a factor warranting 

invalidation of the Agreement. Id. at 555-58.

We concur with the Appellate Division that many of our State’s 

residents receive large volumes of e-mails in the workplace, and that it is not 

always feasible for a given employee to scroll through and carefully read each 

of the e-mails that he or she receives. We do not share the Appellate 

Division’s view, however, that this indisputable challenge faced by many 

workers invalidates the Agreement. See ibid.

Even if Skuse were to contend that she did not review Pfizer’s May 5 

and 6, 2016 e-mails and their attachments because of the volume of e-mails 

addressed to her -- which she does not -- her failure to review Pfizer’s 

communications would not invalidate the Agreement. As the Appellate 

Division has observed, “[a]s a general rule, ‘one who does not choose to read a 

contract before signing it cannot later relieve himself of its burdens.’ The onus 
30

was on plaintiff to obtain a copy of the contract in a timely manner to ascertain 

what rights it waived by beginning the arbitration process.” Riverside 

Chiropractic Grp. v. Mercury Ins. Co., 404 N.J. Super. 228, 238 (App. Div. 

2008) (quoting Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 386 

(1960)); 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 dealership is simply inadequate to avoid enforcement 

of [the] clear and conspicuous arbitration agreement[] [she] signed.”). Any 

contention by Skuse that she completed Pfizer’s e-mailed module without 

reading its contents or the documents linked to it would have no impact on the 

analysis. See Henningsen, 32 N.J. at 386.

Moreover, no principle of New Jersey contract law bars enforcement of a 

contract because that contract is communicated by e-mail, rather than by the 

transfer of a hard-copy document. If we were to adopt such a rule, it would

invalidate contracts that have been negotiated and transmitted electronically

for decades. We decline to do so here.

Indeed, our contract law recognizes that an electronic communication 

may be a clear and effective method of communicating proposed contract 

terms. Rejecting the contention that an online agreement containing a forum 

selection clause should be viewed differently from a forum selection clause on 
31

a cruise ticket that the United States Supreme Court had upheld, the Appellate 

Division observed that

[t]he scenario presented here is different because of the 

medium used, electronic versus printed; but, in any 

sense that matters, there is no significant distinction. 

The plaintiffs in [Carnival Cruise Lines v. Shute, 499 

U.S. 585 (1991)] could have perused all the fine-print 

provisions of their travel contract if they wished before 

accepting the terms by purchasing their cruise ticket. 

The plaintiffs in this case were free to scroll through 

the various computer screens that presented the terms 

of their contracts before clicking their agreement.

[Caspi v. Microsoft Network, L.L.C., 323 N.J. Super.

118, 125 (App. Div. 1999)].

As the Appellate Division there noted, “[w]e discern nothing about the 

style or mode of presentation, or the placement of the provision, that can be 

taken as a basis for concluding that the forum selection clause was proffered 

unfairly, or with a design to conceal or de-emphasize its provisions.” Id. at 

125-26. It accordingly enforced the disputed clause.2 Ibid. But see Hoffman 

2

 Contracts that require “that a user consent to any terms or conditions by 

clicking on a dialog box on the screen in order to proceed with the internet 

transaction” are sometimes called “clickwrap” agreements. Feldman v. 

Google, Inc., 513 F. Supp. 2d 229, 236 (E.D. Pa. 2007). “Even though they 

are electronic, clickwrap agreements are considered to be writings because 

they are printable and storable.” Ibid. Such agreements are “routinely 

enforced by the courts.” HealthPlanCRM, LLC v. AvMed, Inc., ___ F. Supp.

3d ___, ___ (W.D. Pa. 2020) (slip op. at 38); see Meyer v. Uber Techs., Inc., 

868 F.3d 66, 75 (2d Cir. 2017) (clickwrap agreements are valid and routinely 

enforced); Hancock v. AT&T Co., Inc., 701 F.3d. 1248, 1258 (10th Cir. 2012) 
32

v. Supplements Togo Mgmt., LLC, 419 N.J. Super. 596, 611 (App. Div. 2011) 

(holding the disputed forum selection clause presumptively unenforceable 

because it was concealed from offeree in “a submerged portion of the 

webpage” and was not clearly presented, in contrast to the provision in Caspi).

As in Caspi, and in contrast to Hoffman, nothing in the e-mailed

communications in this case concealed the Agreement or understated its

importance. To the contrary, Pfizer highlighted that Agreement in two e-mails 

to the employees concerned. Each e-mail provided a conspicuous link to the 

Agreement itself. The first prominently announced and explained Pfizer’s new 

arbitration policy and linked to the “FAQs” page discussing the import of the 

Agreement and suggesting that an employee might seek to review it with 

counsel. The second launched the module summarizing the Agreement. 

Moreover, contrary to the Appellate Division’s suggestion that an employee 

could easily miss the Agreement because it was sent by e-mail, these 

communications could not be ignored because every employee was required to 

(same); Feldman, 513 F. Supp. 2d at 235-38 (enforcing clickwrap agreement);

Specht v. Netscape Commc’ns Corp., 150 F. Supp. 2d 585, 594-95 (S.D.N.Y. 

2001) (finding that “[t]he few courts that have had occasion to consider clickwrap contracts have held them to be valid and enforceable,” but invalidating 

the agreement at issue because “the user [did not] need [to] view any license 

agreement terms or even any reference to a license agreement, and [did not] 

need [to] do anything to manifest assent to such a license agreement other than 

actually taking possession of the product.”), aff’d, 306 F.3d 17 (2d Cir. 2002).
33

access and complete the module by a stated deadline. Pfizer presented its new 

arbitration policy as an important development and emphasized its 

consequences.

Accordingly, we do not share the Appellate Division’s view that Pfizer’s 

decision to communicate the Agreement and related materials to its employees 

by e-mail warrants invalidation of the Agreement.

2.

The Appellate Division viewed Pfizer’s description of its four-slide 

summary of the Agreement as a “training module” and “activity” in its training 

program to be misleading. Skuse, 457 N.J. Super. at 559. We agree that

Pfizer’s characterization of its slides summarizing the Agreement as “training”

was a misnomer.

When an employer instructs an employee about an aspect of his or her 

job or mandates that an employee review and agree to abide by the policies 

that it expects the employee to honor in the workplace, it is “training” the 

employee. When an employer informs an employee that it has adopted an 

arbitration policy and that his or her continued employment will constitute 

assent to arbitrate potential disputes, “training” is not the most accurate word 

to describe what transpires.
34

When it disseminates an arbitration agreement, an employer may choose

to use tools developed for its training program, such as e-mail notice to 

employees, mandatory review of an agreement along with other relevant 

documents within a prescribed period, and digital confirmation that the 

employee has reviewed the materials provided. Those techniques may 

highlight the importance of the arbitration materials to the employee and

ensure that the communications were received and reviewed. The employer

should not, however, label those communications as “training.”

In our view, however, Pfizer’s use of the term “training” in its 

communications does not invalidate the Agreement. By virtue of their content 

and tone, Pfizer’s communications could not be misconstrued as a routine 

component of a training program. In its May 5 and 6, 2016 e-mails and their 

attachments, Pfizer signaled a fundamental change in the manner in which 

potential disputes would be resolved. Pfizer plainly informed employees that 

they needed to understand and act on the new policy, and that they should seek 

the advice of counsel if they had legal questions about it. Although a reference 

to “training” in an employer’s communication of an arbitration policy might be 

regarded as misleading an employee in a different setting, Pfizer’s use of the 

term does not invalidate the Agreement in the circumstances here.
35

3.

Finally, the Appellate Division held that because Pfizer requested that

Skuse “CLICK HERE to acknowledge” at the end of its module, instead of 

asking that she click to “agree,” she did not assent to the Agreement’s terms. 

Id. at 558-61. Relying on this Court’s decision in Leodori, the Appellate 

Division deemed it “vital that this momentous segment of the module make 

‘unmistakably’ clear that the employee is voluntarily agreeing to the 

arbitration policy, and not simply acknowledging it.” Id. at 559.

In Leodori, we considered an employer’s decision to require each 

employee to sign a specific form as an expression of his or her intent to agree 

to the employer’s arbitration policy. 175 N.J. at 303-07. There, the employer 

issued to all employees a handbook that set forth the company’s arbitration 

policy and identified that policy as “a term and condition of [the employee’s] 

continued employment.” Id. at 296. It issued two separate forms with its 

handbook: an “acknowledgement” form that included a space for the 

employee to acknowledge that he or she had received the handbook but

included no details on the arbitration policy, and a form entitled “Employee 

Handbook Receipt and Agreement,” to be signed by the employee, stating that 

any claims other than worker’s compensation or unemployment compensation 

claims would be subject to arbitration. Id. at 297-98. The plaintiff signed the 
36

“acknowledgment” form but declined to sign the “Receipt and Agreement” 

form; on the latter, “[t]he signature line in [the] plaintiff’s copy was left 

blank.” Id. at 298.

We held that because the plaintiff did not sign the “Receipt and 

Agreement” form, he did not assent to arbitration. Id. at 305. We observed 

that

the acknowledgment form that 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. (The 

acknowledgment form states only that plaintiff had 

“received” the handbook, not that he had “agreed” to its 

terms.) We assume that even large employers presently 

require their employees to sign similar forms as a 

routine part of the handbook-distribution process. 

Thus, with minimal effort, employers can revise the 

language to include an indication that the recipient has 

received and agreed to an arbitration policy. The 

acknowledgment form need not recite that 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 handbook or in another document 

known to the employee.

[Id. at 307.]

The communications at issue in this case differ fundamentally from 

those at issue in Leodori. 
37

First, the employer in Leodori designated the employee’s signature on

the “Employee Handbook Receipt and Agreement” form -- not his signature on 

the “acknowledgement” form or any other conduct -- as the method by which 

the employee would assent to the arbitration agreement. Id. at 305-06. We 

cited Restatement (Second) of Contracts § 60 (Am. Law Inst. 1981), which 

provides that “[i]f an offer prescribes the place, time or manner of 

acceptance[,] its terms in this respect must be complied with in order to create 

a contract.” See id. at 306. Based on that provision, we held that “[o]ur 

contract law does not permit defendant to contemplate or require plaintiff’s 

signature on an agreement and then successfully to assert that the omission of 

that signature is irrelevant to the agreement’s validity.” Ibid. As we noted, the 

employer’s “own documents contemplated plaintiff’s signature as a concrete 

manifestation of his assent.” Ibid. We concluded that “[a]bsent plaintiff’s 

signature here, we cannot enforce the waiver provision unless we find some 

other unmistakable indication that the employee affirmatively had agreed to 

arbitrate his claims.” Id. at 307.

This appeal raises no such considerations. No form intended to confirm 

the employee’s assent was left unsigned, as was the case with the plaintiff’s 

“Review and Agreement” form in Leodori. No writing -- paper or digital --

was designated by the employer to be the employee’s expression of assent, let 
38

alone refused by Skuse. Instead, the prescribed form of assent here was the 

employee’s decision to remain employed after the effective date of the 

arbitration policy. As the Appellate Division observed in Jaworski, 

[h]ere, unlike Leodori, where the employer’s “own 

documents contemplated [the employee’s] signature as 

a concrete manifestation of assent,” [the employer’s] 

ADR policy provided: “An Employee indicates his or 

her agreement to the Program and is bound by its terms 

and conditions by beginning or continuing employment 

with [the employer] after July 18, 2007 (the ‘Effective 

Date’).” Not only did [the employee] continue with 

[the employer] after the Effective Date, thus 

manifesting his intent to be bound pursuant to the 

unambiguous and specifically [] emphasized terms of 

the Program, he did so for an additional five years until 

his termination in 2012.

[Jaworski, 441 N.J. Super. at 474 (second alteration in 

original) (emphasis and citation omitted).]

Here, as in Jaworski, the employee assented to the Agreement in 

accordance with Pfizer’s designated method of expressing assent -- her 

continued employment for an additional sixty days after she received the 

Agreement. 

Second, there are stark distinctions between the “acknowledgement” 

form signed by the plaintiff in Leodori and the page containing the “CLICK 

HERE to acknowledge” button in Pfizer’s arbitration module. 
39

In Leodori, the “acknowledgement” form only generally mentioned the 

employee handbook and did not “refer specifically to arbitration”; only the 

“Receipt and Agreement” form that the plaintiff refused to sign specifically 

addressed arbitration. Leodori, 175 N.J. at 295-97. Moreover, the 

“acknowledgement” form made no reference to any agreement. Id. at 297. It 

confirmed only that the employee had “received a copy” of the employee 

handbook; that he understood that the handbook included “information on 

division policies and programs” that he was “responsible for knowing”; and 

that he understood that the policies and programs were “subject to change at 

the discretion of senior management and that the handbook and its contents are 

not a contract of employment.” Ibid. On its face, the form was thus 

untethered to the question of arbitration. Ibid.

Pfizer’s use of the word “acknowledge” on the third page of the module, 

in contrast, was plainly tied to the arbitration provision at issue.3 That page 

was entitled “Mutual Arbitration and Class Waiver Agreement and 

Acknowledgement,” and the Agreement’s full title was also mentioned on the

first line of that page. It is evident from the language of that page that the

3

 The module’s first slide, previewing the slides that followed, imprecisely 

stated that the employee would be asked to “acknowledge [his or her] receipt” 

of the Mutual Arbitration and Class Waiver Agreement. As the third slide 

makes clear, the acknowledgement that appears on that slide entails much 

more than the employee’s mere “receipt” of the Agreement.
40

“CLICK HERE to acknowledge” button directly relates to Pfizer’s arbitration 

policy, as set forth in that Agreement. 

Significantly, the language immediately preceding “CLICK HERE to 

acknowledge” used several other terms that denote assent. What Skuse was

asked to “acknowledge” -- what she did “acknowledge” -- was her 

understanding that she “must agree” to the Agreement, and that whether or not 

she clicked the “acknowledge” button, she would be deemed to have 

“consented to, ratified and accepted” the Agreement through her continued 

employment at Pfizer. As she clicked the “CLICK HERE to acknowledge” 

button, Skuse was reminded yet again that if she remained employed at Pfizer 

for an additional sixty days after receiving the Agreement, she would be 

deemed to have agreed to that Agreement’s terms. Although the word 

“acknowledge” could be vague or misleading in a different setting, it was an 

appropriate term as used here.

D.

In sum, Pfizer’s Agreement explained to Skuse in clear and 

unmistakable terms the rights that she would forego if she assented to 

arbitration by remaining employed at Pfizer for sixty days. Although Pfizer’s 

“training module” was not an optimal method of conveying to Skuse her 

employer’s arbitration policy, Pfizer’s May 5 and 6 e-mails, the link to the 
41

Agreement contained in those e-mails, the “FAQs” page, and the summaries 

that appeared on the four pages collectively explained, with the clarity that our 

law requires, the terms of the Agreement to which Skuse agreed by virtue of 

her continued employment. 

Accordingly, we hold that the Agreement was valid and binding, and we 

concur with the trial court’s decision to enforce it.

VI.

The judgment of the Appellate Division is reversed, and the trial court’s 

judgment dismissing the complaint and ordering the parties to arbitrate their 

dispute is reinstated.

JUSTICES LaVECCHIA, FERNANDEZ-VINA, and SOLOMON join in 

JUSTICE PATTERSON’s opinion. JUSTICE ALBIN filed a concurrence. 

CHIEF JUSTICE RABNER filed a dissent. JUSTICE TIMPONE did not 

participate.
1

Amy Skuse,

Plaintiff-Respondent,

v.

Pfizer, Inc., John D. Witzig,

Paul Mangeot, and Connie Corbett,

individually, jointly, severally and/or

in the alternative,

Defendant-Appellants.

JUSTICE ALBIN, concurring.

I concur with the majority opinion because, despite any displeasure I 

may have with the online waiver-of-rights procedure used by the employer, the 

totality of the evidence persuades me that plaintiff clearly and unmistakably 

understood that she was agreeing to submit any disputed employment issue to 

an arbitrator rather than a court. In this appeal, plaintiff has not raised the 

argument that the arbitration provision in her employment agreement 

constituted an illicit, industry-wide contract of adhesion.

1

1

 “[T]he essential nature of a contract of adhesion is that it is presented on a 

take-it-or-leave-it basis, commonly in a standardized printed form, without 

opportunity for the ‘adhering’ party to negotiate except perhaps on a few 

particulars.” See Rudbart v. N. Jersey Dist. Water Supply Comm’n, 127 N.J. 

344, 353 (1992).
2

The arbitration cases that have come before our Court have generally 

addressed whether employees or consumers had clearly and unmistakably 

waived their right to seek relief in a judicial forum for a breach of contract or a 

statutory violation. In that respect, this case is no different.

But soon employers and corporations will develop the perfect, 

unassailable arbitration clause. When every employment and consumer 

contract contains such a clause across an entire profession or industry, when 

employees and consumers have no choice but to waive their right to resolve 

their disputes in a judicial forum in order to get a job or buy a good, we will 

have to address a more profound question. Are such contracts of adhesion

contrary to New Jersey’s most fundamental public policy -- the constitutional 

right to a civil jury trial -- and therefore unconscionable and unenforceable 

under the Federal Arbitration Act and its state counterpart? That is the great 

issue that will confront the Court. I will not attempt to resolve that issue here, 

for this is not the time or the case. But I do want to set the stage for what is at 

stake.

I.

Alternative dispute resolution suggests a choice -- an alternative. When 

an entire industry or profession inserts in employment and consumer contracts 

arbitration provisions on a take-it-or-leave-it basis, the public has no real 
3

choice. The option of rejecting an arbitration provision and foregoing either a 

job offer or access to medical services or the opportunity to purchase a car is 

not a choice. Most consumers who purchase goods and services and most job 

seekers who search for employment have no bargaining power to demand the 

removal of an arbitration clause. That is the reality of the marketplace.

A.

The benefits of arbitration as an alternative dispute resolution forum are 

many, and when parties freely contract for arbitration, those agreements -- like 

all valid agreements -- must be enforced. Marchak v. Claridge Commons, Inc., 

134 N.J. 275, 281-82 (1993). To be sure, arbitration provides an informal, 

“efficient, inexpensive, and expeditious means for dispute resolution.” 

Alexander v. Gardner-Denver Co., 415 U.S. 36, 58 (1974); see also Kernahan 

v. Home Warranty Adm’r of Fla., Inc., 236 N.J. 301, 324 (2019). When 

entered into freely, arbitration agreements give the parties what they bargained 

for -- the opportunity to choose a skilled and experienced arbitrator in a 

specialized field to preside over and decide a dispute in a forum out of the 

public glare. Diverting cases from our overburdened civil justice system, 

moreover, allows more matters to be brought to a swifter conclusion.

Significantly, “[t]he Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, 

and the nearly identical New Jersey Arbitration Act (NJAA), N.J.S.A. 
4

2A:23B-1 to -32, enunciate federal and state policies favoring arbitration.” 

Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 440 (2014) (citing

AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011); Hojnowski v. 

Vans Skate Park, 187 N.J. 323, 342 (2006); Martindale v. Sandvik, Inc., 173 

N.J. 76, 92 (2002)). Arbitration agreements, however, are governed under 

general state contract principles. Id. at 441. Although the FAA and NJAA

require that a court “place arbitration agreements on an equal footing with 

other contracts,” ibid. (quoting Concepcion, 563 U.S. at 339), those Acts 

permit a court to invalidate an arbitration provision, like any other provision, 

“upon such grounds as exist at law or in equity for the revocation of any 

contract,” 9 U.S.C. § 2; Concepcion, 563 U.S. at 339; Martindale, 173 N.J. at

85.

General state contract principles authorize courts to invalidate contracts 

that contain terms that are unconscionable and in violation of public policy. 

Rudbart v. N. Jersey Dist. Water Supply Comm’n, 127 N.J. 344, 356 (1992). 

Consistent with those principles, on a number of occasions, we have exercised 

our authority to strike down unconscionable contract terms on public-policy 

grounds. See, e.g., Vitale v. Schering-Plough Corp., 231 N.J. 234, 247, 255-56 

(2017); Muhammad v. Cty. Bank of Rehoboth Beach, Del., 189 N.J. 1, 15-16, 

22 (2006); Vasquez v. Glassboro Serv. Ass’n, Inc., 83 N.J. 86, 104-05 (1980); 
5

Ellsworth Dobbs, Inc. v. Johnson, 50 N.J. 528, 554-56 (1967). Industry-wide 

contracts of adhesion -- contracts that are offered on a take-it-or-leave-it basis 

-- that impose unconscionable terms will not be enforced by our courts. The 

classic example for this proposition is the landmark case of Henningsen v. 

Bloomfield Motors, Inc., 32 N.J. 358, 385-408 (1960).

In Henningsen, we struck down on public-policy grounds the terms of a 

consumer contract for the purchase of an automobile that waived almost all 

warranties concerning the merchantability of the vehicle. Id. at 404, 408. The 

plaintiffs sued an automobile manufacturer and dealership for personal injuries 

and consequential damages after the purchased vehicle crashed as a result of a

manufacturing defect in the car. Id. at 364-65. The manufacturer and 

dealership disclaimed liability for the personal injuries caused by the defective 

automobile, relying on the contract’s warranty-waiver provision. Id. at 367, 

404. The consumer contract “limit[ed] the manufacturer’s liability to 

replacement of defective parts, and . . . disclaim[ed] all other warranties, 

express or implied.” Id. at 386. The warranty-waiver provision was 

effectively an exculpatory clause. See id. at 372-73.

This Court recognized that the entire automobile industry had adopted 

similar exculpatory contract terms, giving consumer’s “no real freedom of 

choice.” Id. at 390-91, 404. The absence of freedom of contract was central to 
6

our holding that the warranty-waiver provision violated public policy and 

therefore was invalid. Id. at 391, 408. We stated that 

[t]he gross inequality of bargaining position occupied 

by the consumer in the automobile industry is thus 

apparent. There is no competition among the car 

makers in the area of the express warranty. Where can 

the buyer go to negotiate for better protection? Such 

control and limitation of his remedies are inimical to 

the public welfare and, at the very least, call for great 

care by the courts to avoid injustice through application 

of strict common-law principles of freedom of contract.

[Id. at 391.]

The basic public policy at issue in Henningsen was the right of a 

purchaser to sue for defects in the manufacture of a vehicle, despite the

automobile industry’s form-contract disclaimers. Id. at 377, 403-04. When an 

entire profession or industry includes in an employment or consumer contract a 

provision that all statutory or common law disputes must be resolved only by 

arbitration, the public policy at risk is the freedom to choose a judicial forum 

and to exercise the constitutional right to a civil jury trial.

B.

The right to trial by jury in civil cases is deeply rooted in New Jersey’s 

history and “predates the founding of our Republic.” Allstate N.J. Ins. Co. v. 

Lajara, 222 N.J. 129, 134, 139-41 (2015). In seventeenth-century New Jersey, 

then divided into the provinces of West and East Jersey, the right to a jury trial 
7

was codified in two separate enactments. Id. at 139; see Charter or 

Fundamental Laws of West New Jersey ch. XXII (1676), http://

www.njstatelib.org/wp-content/uploads/slic_files/imported/Research_Guides/

Historical_Documents/nj/NJ05A.html; Fundamental Constitutions for the 

Province of East New Jersey in America art. XIX (1683), http://

avalon.law.yale.edu/17th_century/nj10.asp. On July 2, 1776, New Jersey

ratified its first Constitution, which declared “that the inestimable right of trial 

by jury shall remain confirmed, as a part of the law of this colony, without 

repeal for ever.” N.J. Const. of 1776 art. XXII. New Jersey’s 1844 and 1947 

Constitutions both reaffirmed that “[t]he right of trial by jury shall remain 

inviolate.” N.J. Const. of 1844 art. I, ¶ 7; N.J. Const. art. I, ¶ 9.

The civil jury trial has historically played a preeminent role in our 

constitutional system of justice -- a system that places “trust in ordinary men 

and women of varying experiences and backgrounds, who serve as jurors, to 

render judgments concerning liability and damages.” Cuevas v. Wentworth 

Grp., 226 N.J. 480, 499 (2016) (quoting Johnson v. Scaccetti, 192 N.J. 256, 

279 (2007)). A jury trial is the ultimate example of self-government in a 

democratic society. Lajara, 222 N.J. at 134. To many, a verdict rendered by a 

jury has greater currency than a judgment coming from any single individual, 

whether a special master, an arbitrator, or even a judge.
8

Today, industry-wide employment and consumer contracts of adhesion 

with compelled arbitration provisions and forced waiver-of-rights clauses are 

rendering the right to a civil jury an anachronism. In considering the publicpolicy implications of this phenomenon, we must take account of what will be

lost with the demise of the civil jury trial.

A trial by a jury of one’s peers -- representing a cross-section and the 

diversity of society -- is infused with community values. See ibid. Though 

mistakes are unavoidable in any human enterprise, six jurors deliberating

-- examining the evidence and testing one another’s theories in the crucible of 

debate -- may be less prone to err than a solitary person whose views are not 

subject to challenge.

The right to a public trial ensures transparency that is absent from a 

closed arbitration proceeding. Transparency of court proceedings allows the 

public and the press to serve as watchdogs over our justice system and to be 

educated about how it functions. In an open judicial system, where grievances 

are aired in a public forum, citizens can learn the identities of companies that 

manufacture dangerous products; the identities of employers who sexually 

harass their employees or discriminate on the basis of nationality or religion; 

the identities of landlords who turn away renters on the basis of race; the 

identities of doctors, lawyers, and other professionals who repeatedly engage 
9

in malpractice; the identities of home-improvement companies that engage in 

unconscionable practices; and much more. That valuable information that 

benefits an informed citizenry is kept under a veil of secrecy in arbitration 

proceedings. See Benjamin P. Edwards, Arbitration’s Dark Shadow, 18 Nev. 

L.J. 427, 431 (2018) (“[I]ndustry-wide arbitration replaces a court’s public 

benefit with secrecy. Because the public lacks meaningful oversight over 

arbitration, it cannot be assured that the process operates fairly. Importantly, 

arbitration also often removes the frequency, type, and result of disputes from 

the public eye, undercutting reputation’s ability to police market behavior.” 

(footnote omitted)).

Public accountability leads to corrective actions: procedures to 

eliminate discrimination in the workplace, safer products, safer medical 

procedures, and heightened integrity in consumer transactions. Additionally, 

arbitration typically does not provide comparable civil-trial discovery that may 

be needed to uncover well-concealed wrongdoing or negligence. Without 

access to civil trials and appellate review, there is no opportunity for the 

interpretation of complex legal principles in legislative schemes or for the 

development and refinement of our common law.
10

For those who freely choose the many benefits of arbitration, the tradeoff is fair. They can voluntarily and knowingly waive their rights to access the 

courts through arbitration agreements. See Atalese, 219 N.J. at 442.

But for those who are herded into arbitration agreements through 

industry-wide employment and consumer contracts of adhesion, the 

admonitions in Henningsen are worthy of thoughtful consideration. In striking

down the industry-wide waiver of warranties in Henningsen, this Court 

acknowledged the unequal bargaining power between consumers and

automobile manufacturers and the potential harm to the public good posed by 

exculpatory clauses. 32 N.J. at 384. The Henningsen decision undoubtedly 

prodded the automobile industry to produce safer cars and therefore reduced 

the number of injuries caused by defective vehicles.

New Jersey’s four-century-old commitment to the civil jury trial 

-- inscribed in all three of our State Constitutions -- is a self-evident 

expression of a paramount public policy. Viewed through the prism of general 

contract principles, industry-wide arbitration agreements in contracts of 

adhesion that compel an employee or consumer to waive his or her 

constitutional right to a civil jury trial and accept arbitration, arguably, would 

be unconscionable and violative of public policy. An arbitration agreement 

voided on that non-discriminatory basis would not appear to offend either the 
11

FAA or NJAA. See 9 U.S.C. § 2; Concepcion, 563 U.S. at 339; Martindale, 

173 N.J. at 85; Henningsen, 32 N.J. at 384-408.

That issue is for another day and is not raised in the appeal before us.

For the present, I concur in the majority opinion.
1

Amy Skuse,

Plaintiff-Respondent,

v.

Pfizer, Inc., John D. Witzig,

Paul Mangeot, and Connie Corbett,

individually, jointly, severally and/or

in the alternative,

Defendant-Appellants.

CHIEF JUSTICE RABNER, dissenting.

I respectfully dissent largely for the reasons stated in Judge Sabatino’s 

thoughtful opinion in Skuse v. Pfizer, Inc., 457 N.J. Super. 539 (App. Div. 

2019). The decision carefully parses the online “training module” defendant 

Pfizer used. It also explains why the module lacks clear and unmistakable 

proof that Pfizer’s employees agreed to waive the right to have their day in 

court. 

I.

Basic contract principles apply to arbitration agreements. Kernahan v. 

Home Warranty Adm’r of Fla., Inc., 236 N.J. 301, 307 (2019). To begin with, 

both sides must agree to any contract. If only one side consents, there is no 

“meeting of the minds” and no “legally enforceable agreement.” Atalese v. 
2

U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 442 (2014) (quoting Morton v. 4 

Orchard Land Tr., 180 N.J. 118, 120 (2004)). In short, “[a]n agreement to 

arbitrate, like any other contract, ‘must be the product of mutual assent.’” 

Ibid. (quoting NAACP of Camden Cty. E. v. Foulke Mgmt., 421 N.J. Super. 

404, 424 (App. Div. 2011)). 

Beyond that, an arbitration agreement is a contract under which both 

sides agree to waive the right to proceed in court to resolve their disputes. 

Ibid. (citing Foulke, 421 N.J. Super. at 425). For a waiver to be valid, the 

parties must knowingly and voluntarily give up their rights. Knorr v. Smeal, 

178 N.J. 169, 177 (2003). Courts therefore look to the language of any 

waiver-of-rights provision to see if it “clearly and unambiguously” sets forth 

an agreement “to arbitrate the disputed claim.” Leodori v. Cigna Corp., 175 

N.J. 293, 302 (2003); see also Atalese, 219 N.J. at 443-44, 448; Garfinkel v. 

Morristown Obstetrics & Gynecology Assocs., P.A., 168 N.J. 124, 132 (2001). 

In light of those unremarkable principles, a valid waiver requires “an 

explicit, affirmative agreement that unmistakably reflects the employee’s 

assent.” Leodori, 175 N.J. at 303 (emphases added). In short, there must be 

(1) a provision that plainly alerts the parties they are giving up a right -- in this 

case, the right to litigate in court, and (2) clear and unmistakable proof that 

both parties agreed to the provision.
3

Application of those basic principles under state contract law does not 

run afoul of the Federal Arbitration Act (FAA). See First Options of Chi., Inc. 

v. Kaplan, 514 U.S. 938, 944 (1995) (“When deciding whether the parties 

agreed to arbitrate a certain matter . . . , courts generally . . . should apply 

ordinary state-law principles that govern the formation of contracts.”); see also

9 U.S.C. § 2 (arbitration agreements are “valid, irrevocable, and enforceable, 

save upon such grounds as exist at law or in equity for the revocation of any 

contract”); Lamps Plus, Inc. v. Varela, 587 U.S. ___, 139 S. Ct. 1407, 1415

(2019) (citing First Options and observing that “courts may ordinarily” enforce 

arbitration agreements “by relying on state contract principles”).

II.

The documents Pfizer provided to its employees plainly called for 

arbitration of employment-related disputes. This appeal instead turns on the 

second of the above two elements: whether there is clear and unmistakable 

proof that Pfizer’s employees assented or agreed to arbitration. Here, neither 

the “acknowledgment” of company policy that Pfizer elicited from its 

employees, nor a one-sided declaration that consent would be deemed by 

default, met that standard. 

Pfizer first sent its employees an email that announced and outlined its 

arbitration policy. The message, by itself, could not and did not establish that 
4

a recipient agreed to the policy. Pfizer suggests that assent can be found from 

the language of the training module it emailed the next day. That is not the 

case, however. 

The first screen of the training module states that arbitration is a 

condition of employment with Pfizer and then adds, in clear language, “The 

next page contains the Mutual Arbitration and Class Waiver Agreement. You 

will be able to review and print the Agreement. You will then be asked to

acknowledge your receipt of the Agreement.” (emphasis added). 

Words matter, and the words Pfizer used told its employees they would 

be asked to acknowledge they had received the Agreement. Not that they 

reviewed and agreed with it, or “consented to, ratified and accepted” the 

Agreement. Just that they had received it. Yet later in the training module, 

Pfizer used the very words “consented to, ratified and accepted” as a way to 

“deem” assent. 

The second screen provides a way for employees to review and print the 

Agreement. That leads into the third screen, which reads as follows: 

[1] I understand that I must agree to the Mutual 

Arbitration and Class Waiver Agreement as a condition 

of my employment. [2] Even if I do not click here, if 

I begin or continue working for the Company sixty (60) 

days after receipt of this Agreement, even without 

acknowledging this Agreement, this Agreement will be 

effective, and I will be deemed to have consented to, 
5

ratified and accepted this Agreement through my 

acceptance of and/or continued employment with the 

Company.

Immediately below, the following critical language appears: “CLICK HERE 

to acknowledge.”1 

The first part of the third screen contains a statement of company policy: 

arbitration is a condition of employment to work for Pfizer. Pfizer can set and 

enforce company policies that do not run afoul of “a clear mandate of public 

policy.” See Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 71-72 (1980); accord

Woolley v. Hoffmann-La Roche, 99 N.J. 284, 291-92 (1985). But Pfizer

cannot declare that its employees agree with a policy and agree to waive their 

rights. Only the employees can speak for themselves. As with any contract, 

one side cannot simply declare that the other agrees; clear and unmistakable 

proof of assent on both sides is needed. 

The module alternatively states that employees “will be deemed to have 

consented to, ratified and accepted this Agreement” if they continue to work 

for sixty days. But one side deeming consent by default suffers from the same 

flaw: it does not show clear and unmistakable proof that the other party 

agrees. As the Appellate Division correctly observed, Pfizer’s “unilateral 

1

 For purposes of Pfizer’s motion to dismiss and compel arbitration, plaintiff 

Amy Skuse, who worked for Pfizer before the company terminated her 

employment, did not dispute that she saw the screen.
6

declaration” of consent “is an attempt to bypass” elementary principles of 

contract law. Skuse, 457 N.J. Super. at 563. 

The cases cited by the majority do not compel a different outcome. See

ante at ___ (slip op. at 23-24). In Martindale v. Sandvik, Inc., the Court 

upheld an arbitration agreement set forth in an employment application. 173 

N.J. 76, 81-82 (2002). Unlike here, the parties “executed a written agreement 

to arbitrate all claims against” the employer. Id. at 86. Similarly, in Jaworski 

v. Ernst & Young U.S. LLP, all three plaintiffs in the case signed and assented

to at least one arbitration agreement. 441 N.J. Super. 464, 471, 473 (App. Div. 

2015). Amy Skuse never did. Skuse, 457 N.J. Super. at 562-63.

And in Weichert Co. Realtors v. Ryan, the Court rejected a real estate 

broker’s claim that a developer had agreed to pay the broker a ten-percent 

commission. 128 N.J. 427, 438-40 (1992). In the course of reviewing the 

broker’s claim for breach of contract, the Court recounted a general principle 

that words or conduct can sometimes manifest assent and create an implied-infact contract. Id. at 436 (citing 1 Williston on Contracts § 91 (3d ed. 1957) 

and other sources). The Court then provided examples, such as “when an 

offeree accepts the offeror’s services without expressing any objection to the 

offer’s essential terms,” and “when a party confers a benefit with a reasonable 
7

expectation of payment.” Id. at 436-37. Those situations are not instructive 

here.

The final page of Pfizer’s training module likewise fails to offer clear 

and unmistakable proof of assent. It “thank[s]” employees for “reviewing the 

Mutual Arbitration and Class Waiver Agreement.” (emphasis added). Again, 

the module makes no mention of “agreeing” or “consenting” to the Agreement,

just “reviewing” it.

III.

Assent or agreement can easily be established through an online module 

that is emailed or a written document sent in the mail.

2

 Employers must 

simply use words of their own choosing that convey “the recipient has 

received and agreed to an arbitration policy.” Leodori, 175 N.J. at 307. That

was not done here. 

There is no reason not to hold Pfizer to the words it chose: employees 

were expressly told they would be asked “to acknowledge . . . receipt of the 

Agreement” after having a chance to read it -- no more and no less. (emphasis 

added). 

2

 The Appellate Division noted an obvious fact of modern-day life -- that 

employees can be inundated with emails at work, which they “frequently 

skim.” Skuse, 457 N.J. Super. at 556. Nowhere, however, did the court rest

its decision on Pfizer’s use of email to convey its arbitration policy. See id. at 

555-58. But see ante at ___ (slip op. at 28-33).
8

Consider a related example. The majority today plainly upholds the use 

of the online training module in this case. I received and reviewed the opinion 

and acknowledge the majority’s position. Does that mean I agree with it? Of 

course not -- because “acknowledge” and “agree” do not necessarily mean the 

same thing. See Skuse, 457 N.J. Super. at 559 n.7 (citing Merriam-Webster’s 

Collegiate Dictionary 11 (11th ed. 2003)). To establish clear and unmistakable 

proof of assent requires more than an acknowledgment.

The Court in Leodori made that clear. In that case, an employee signed 

an acknowledgment form that noted he “received” and “reviewed” the 

employer’s handbook; the handbook contained a purported agreement to 

arbitrate. 175 N.J. at 297. The employee did not, however, sign a second form 

that stated he “agreed” to the arbitration policy. Id. at 298. The Court found 

the waiver invalid because it could not conclude the employee “clearly had 

agreed to it.” Id. at 295. 

As in this case, there was proof an employee understood and received a

company’s arbitration policy -- not that he agreed to it. Had he signed the 

second form, there would have been clear proof of assent. Id. at 307. 

That did not mark the end of the Court’s analysis, though. As the Court 

explained, without a signature on the latter form, the arbitration provision 

could not be enforced unless there was “some other explicit indication that the 
9

employee intended to abide by that provision.” Id. at 305 (emphasis added). 

There was none, just as there is no explicit indication of assent in this case.

Finally, to the extent language in Pfizer’s agreement is open to another 

interpretation -- that employees not only received but also “agreed” in some 

way to Pfizer’s waiver-of-rights policy -- the Agreement “should be construed 

against the drafter,” who “‘chose the words . . . susceptible to different 

meanings.’” Roach v. BM Motoring, LLC, 228 N.J. 163, 174 (2017) (quoting 

Kieffer v. Best Buy, 205 N.J. 213, 224 (2011)). In any event, an ambiguous 

agreement, by definition, cannot establish clear and unmistakable proof of 

assent.

IV.

Many employers will understandably prefer the training module Pfizer 

used in this case. It is simpler to have employees click a screen and 

acknowledge they received a document, or to deem their consent by default, 

than it is to ask whether they agree to waive their right to resolve disputes in 

court. The module eliminates the need to follow up with individuals who 

disagree or fail to respond. But straightforward legal principles require both 

sides to assent to form a contract. It is not enough to “acknowledge” a 

statement of policy or to deem consent by default. 
10

The majority rightly criticizes some of the language defendant used. See

ante at ___ (slip op. at 33-34, 39 n.3, 40). Yet by upholding the so-called 

training module, I fear that today’s opinion not only sanctions what took place 

but also ushers in a new day for arbitration agreements. Going forward, what 

employer will ask an employee to agree to settle a dispute through arbitration 

and waive the right to proceed in court if it is enough simply to ask the 

employee to acknowledge she received a statement of company policy and 

deem consent from her continuing to show up for work? 

More is required to show clear and unmistakable assent in any context. 

More should be required before employees are asked to give up their

constitutional and statutory rights to have their day in court. For those 

reasons, I respectfully dissent.