AND NOTICE ACT IS WITHOUT MERIT.
[POINT VIII]
PLAINTIFF'S ARGUMENT REGARDING NON- SIGNATORIES IS WITHOUT MERIT.
[POINT IX]
A-3092-19 THE ALLEGED FAILURE TO EXPLAIN THE JAMS RULES HAS NO EFFECT ON THE ARBITRATION AGREEMENT'S VALIDITY.
[POINT X]
THE UNAVAILABILITY OF JAMS HAS NO EFFECT ON THE ARBITRATION AGREEMENT'S VALIDITY.
[POINT XI]
NJAJ IMPROPERLY RELIES ON IMMATERIAL AND UNSUPPORTED ARGUMENTS THAT WERE NOT RAISED BELOW.
[PONT XII]
IN SKUSE,[8] THE NEW JERSEY SUPREME COURT REAFFIRMED THE FAA'S EQUAL-FOOTING PRINCIPLE AND APPLIED GENERAL CONTRACT LAW.
[POINT VIII]
IN SKUSE, THE NEW JERSEY SUPREME COURT HELD THAT PLAINTIFFS BEAR THE BURDEN OF OBTAINING AND REVIEWING AVAILABLE INFORMATION.
On his cross-appeal, plaintiff raises the following contentions, which we
have re-numbered:
[POINT I]
Skuse v. Pfizer, Inc., 244 N.J. 30 (2020). A-3092-19 THE [MOTION JUDGE] CORRECTLY HELD THE ARBITRATION PROVISION TO BE UNENFORCEABLE BECAUSE THE JAMS RULES WERE "UNACCESSIBLE[,]" THE ARBITRATION PROVISION "DOES NOT EXPLAIN THE RULES[,]" AND "BECAUSE IT LACKS A MEETING OF THE MINDS.["]
[POINT II]
THE [MOTION JUDGE] HELD CORRECTLY THAT THE DESIGNATION OF JAMS AS THE EXCLUSIVE ARBITRAL FORUM AND ITS UNAVAILABILITY MEANT THAT THERE WAS NO MEETING OF THE MINDS BETWEEN THE PARTIES AND THE ARBITRATION CLAUSE IS UNENFORCEABLE[;] THE [MOTION JUDGE] ERRED UPON RECONSIDERATION IN HOLDING THAT THE UNAVAILABILITY OF JAMS WAS NOT SO INTEGRAL TO THE ARBITRATION CLAUSE TO RENDER IT UNENFORCEABLE.
[POINT III]
DIVERGENT COURT OPINIONS HAVE LEFT THE VALIDITY OF THE SKY ZONE ARBITRATION CLAUSE UNSETTLED.
[POINT VI]
DISMISSAL OF THE FIRST AMENDED COMPLAINT WOULD BE IMPROPER BECAUSE NON-SIGNATORIES TO THE AGREEMENT CANNOT BE COMPELLED TO ARBITRATE.
[POINT V]
A-3092-19 THE SKY ZONE ARBITRATION AGREEMENT CONTAINS MATERIAL DISCREPANCIES ESSENTIAL TO A CONSUMER WAIVER-OF- RIGHTS NEGATING A MEETING OF THE MINDS.
[POINT VI]
SKY ZONE CLAIMS SUBJECT TO ARBITRATION UNDER THE JAMS RULE 16.1 EXPEDITED PROCEDURES AND RULES ARE AN EXAMPLE OF INDUSTRY-WIDE CONTRACTS OF [9] ADHESION.
[POINT VII]
FLANZMAN HOLDS THAT THE NJAA PROVIDES A DEFAULT PROCEDURE WHEN PARTIES OMIT THE TERMS FOR SELECTION OF THE ARBITRATOR AND THE ARBITRATION PROCESS - BUT DISTINGUISHES THE HOLDING IN KLEINE WHERE THE PARTIES AGREE TO A SPECIFIC ARBITRATION ORGANIZATION AS AN ESSENTIAL TERM AND RENDER IT UNENFORCEABLE WHEN THE ARBITRATION ORGANIZATION WAS UNAVAILABLE AT THE TIME THE CONTRACT WAS EXECUTED - AS ESSENTIAL TO A CONSUMER WAIVER-OF- RIGHTS AND NEGATING A MEETING OF THE MINDS.
A. SKY ZONE SELECTED JAMS AS THE EXCLUSIVE ARBITRATION ORGANIZATION AND KNEW OR
There is insufficient information on this record for us to adjudicate this contention, which was not explicitly addressed by the judge, either by way of findings of fact or conclusions of law. A-3092-19 SHOULD HAVE KNOWN JAMS WAS UNAVAILABLE.
B. THE SKY ZONE ARBITRATION CLAUSE VIOLATES THE PLAIN LANGUAGE ACT AND THE TRUTH- IN-CONSUMER CONTRACT, WARRANTY AND NOTICE ACT.
C. SKY ZONE'S SELECTION OF JAMS WAS AN ESSENTIAL/INTEGRAL CONTRACT TERM.
NJAJ, as amici, raise the following points, which we have re-numbered:
[POINT I]
THERE WAS NO ASSENT BY [PLAINTIFF] TO WAIVE HIS RIGHT TO A JURY TRIAL SO THE [MOTION JUDGE] CORRECTLY HELD THAT