This month, a panel of the New Jersey Superior Court, Appellate Division, ruled that a proposed class action brought by customers of a solar energy company was subject to arbitration. The case, Brian and Ananis Griffoul v. NRG Residential Solar Solutions, LLC, Dkt. No. A-5536-16T1, alleged fraudulent marketing under the New Jersey Consumer Fraud Act as well as violations of the state’s Truth-In-Consumer Contract Warranty and Notice Act.

The defendant, NRG Residential Solar Solutions, LLC, responded to the lawsuit with a motion to compel arbitration and to dismiss the claims with prejudice. The trial court judge originally sided with the plaintiffs, finding the case analogous to Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430, 435 (2014), which found an arbitration clause unenforceable because it failed to clearly and unambiguously state that consumers were waiving their right to seek relief in court. Specifically, in Atalese, the court held the arbitration clause failed to state that consumers were waiving their right to seek relief in court by agreeing to the arbitration clause.

But the appellate court in Griffoul reversed, premising its holding on the arbitration clause’s clear and unambiguous language. It found the arbitration clause expressly “announced” that any dispute was subject to arbitration; that arbitration was the “sole and exclusive remedy”; and “clearly stated the parties were waiving the right to a jury trial.” Importantly, the appellate court also found–unlike the trial court–that the arbitration clause “clearly” limited claims brought in arbitration to individual claims, therefore barring a class action in arbitration.

Griffoul brings more certainty and clarification to the law. When considered alongside Atalese, it underscores the critical importance of using clear language, which unambiguously announces to consumers that any potential claim is subject to arbitration and that they are waiving their right to seek relief in court.

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Photo of Jeremy Sacks Jeremy Sacks

Jeremy Sacks is a partner in the Litigation Practice Group, chair of the firm’s Energy Litigation Initiative, and chair of the Portland office Trial group. His practice focuses on complex litigation in a variety of businesses, including the energy and health care industries.

Jeremy Sacks is a partner in the Litigation Practice Group, chair of the firm’s Energy Litigation Initiative, and chair of the Portland office Trial group. His practice focuses on complex litigation in a variety of businesses, including the energy and health care industries. He has experience litigating business torts, contract disputes, securities fraud, False Claims Act issues, shareholder disputes, class actions, licensing disputes, and antitrust claims. Jeremy also has substantial experience conducting internal corporate investigations and handling export and import matters. He has represented individual and corporate clients, both regional and national, in a variety of private, state and federal forums.

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Photo of Tyler Killeen Tyler Killeen

Tyler Killeen is an associate in the firm’s Litigation Group. Tyler represents businesses and individuals in a variety of complex commercial matters, such as contract disputes, corporate governance and shareholder disputes, class actions, health care, and commercial leasing matters. Tyler has experience representing…

Tyler Killeen is an associate in the firm’s Litigation Group. Tyler represents businesses and individuals in a variety of complex commercial matters, such as contract disputes, corporate governance and shareholder disputes, class actions, health care, and commercial leasing matters. Tyler has experience representing clients in state and federal court, appeals, mediations, and arbitrations.

Tyler graduated Order of the Coif from the University of Oregon School of Law, where he was a member of the Oregon Law Review. Prior to joining Stoel Rives, Tyler worked in Medford, Oregon, as a judicial law clerk at the U.S. District Court for the District of Oregon. Tyler worked in multiple areas of the law, including on matters involving commercial, environmental, employment, and insurance disputes.

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