ANNA JASICKI v. MORGANSTANLEY SMITHBARNEY LLC

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1629-19T1

ANNA JASICKI,

          Plaintiff-Appellant,

v.

MORGANSTANLEY
SMITHBARNEY LLC,
MORGAN STANLEY
WEALTH MANAGEMENT
d/b/a MORGAN STANLEY,
and JAMES LLOYD,

     Defendants-Respondents.
____________________________

                    Argued January 5, 2021 – Decided January 19, 2021

                    Before Judges Mawla and Natali.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Monmouth County, Docket No. L-1686-19.

                    R. Armen McOmber argued the cause for appellant
                    (McOmber McOmber & Luber, PC, attorneys; Matthew
                    A. Luber and R. Armen McOmber, on the briefs).

                    Thomas A. Linthorst argued the cause for respondents
                    (Morgan, Lewis & Bockius, LLP, attorneys for Morgan
             Stanley Smith Barney, LLC, and Morgan Stanley
             Wealth Management; Hamburger Law Firm, LLC,
             attorneys for James Lloyd; Thomas A. Linthorst, Tova
             Katims, and Sharron E. Ash, on the joint brief).

PER CURIAM

      Plaintiff Anna Jasicki appeals from a December 5, 2019 order dismissing

her complaint against defendants Morgan Stanley Smith Barney, LLC, Morgan

Stanley Wealth Management d/b/a Morgan Stanley, and James Lloyd, and

compelling arbitration. We affirm.

      Plaintiff was employed at Morgan Stanley beginning in 2011. In May

2019, she filed a three-count complaint in the Law Division alleging disparate

treatment and hostile work environment, sexual harassment and discrimination,

and retaliation pursuant to the New Jersey Law Against Discrimination,  N.J.S.A.

10:5-1 to -49.     The complaint alleged plaintiff's supervisor, Lloyd, had

committed various acts of sexual harassment and when she rejected his

advances, he retaliated against her. The complaint also alleged when plaintiff

complained about Lloyd's conduct to Morgan Stanley, it protected Lloyd and

retaliated against her.

      Defendants moved to compel arbitration, alleging plaintiff waived her

right to prosecute her claims in court because she agreed to arbitration.

Specifically, defendants argued that on September 2, 2015 at 3:19 p.m., Morgan

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Stanley's human resources email account sent an email to plaintiff's work email

with the subject line, "Expansion of CARE 1 Arbitration Program." The body of

the email read:

              Expansion of CARE Arbitration Program

              September 2, 2015

                     More than [ten] years ago, Morgan Stanley
              launched CARE . . . the [f]irm's internal employee
              dispute resolution program. CARE provides employees
              with a quick and neutral way to raise and address
              workplace concerns. By combining internal (informal
              resolution) and external (mediation and arbitration)
              dispute resolution mechanisms, CARE promotes open
              and honest communication, increases mutual respect,
              and resolves employment-related concerns swiftly,
              fairly[,] and economically.

                     Current registered employees are required to
              arbitrate most workplace claims under existing FINRA
              [Financial Industry Regulatory Authority] rules, and
              given the success of the CARE program, Morgan
              Stanley is announcing the expansion of CARE and
              modifications to related [f]irm policies and programs to
              extend arbitration obligations for all U[.]S[.] employees
              – registered and non-registered. Effective October 2,
              2015, arbitration under the CARE Arbitration Program
              will be mandatory for all employees in the U.S., and all
              covered claims between the [f]irm and employees will
              be resolved through final and binding arbitration on a
              non-class, non-collective and non-representative action
              basis as more fully described in the Arbitration
              Agreement and CARE Guidebook. Please review the

1
    CARE stands for Convenient Access to Resolutions for Employees.
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           Arbitration Agreement and the CARE Guidebook. It is
           important that you read and understand the Arbitration
           Agreement and the CARE Guidebook as they describe
           the terms, features[,] and details of this program.

           Next Steps

                  By continuing your employment with Morgan
           Stanley, you accept and agree to, and will be covered
           and bound by the terms of the Arbitration Agreement
           and the arbitration provisions of the CARE Guidebook,
           unless you elect to opt out of the CARE Arbitration
           Program by completing, signing and submitting an
           effective CARE Arbitration Program Opt-Out Form by
           October 2, 2015 . . . . If you remain employed and do
           not timely complete, sign and submit an effective
           CARE Arbitration Program Opt-Out Form, the [f]irm's
           records will reflect that you have consented and agreed
           to the terms of the Arbitration Agreement and the
           arbitration provisions of the CARE Guidebook. You
           will not have an opportunity to opt out at a later date.

                  Importantly, should you choose to opt out of the
           Arbitration Agreement and CARE Arbitration Program,
           you will continue to be bound by the terms of any other
           arbitration agreement or obligation applicable to you.
           Your decision to opt out of the Arbitration Agreement
           and the CARE Arbitration Program will not adversely
           affect your employment status with the [f]irm.

                If you have questions about the Arbitration
           Agreement or the arbitration provisions in the CARE
           Guidebook, email carebox@morganstanley.com.

     Defendants argued plaintiff agreed to arbitration because she did not opt -

out of the CARE Arbitration Program, her email did not send an out-of-the-


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office reply when it received the CARE email, and plaintiff sent emails on

September 2, 2015, around the time she received the CARE email, namely, at

2:41 p.m., 2:44 p.m., 3:30 p.m., and 4:29 p.m. In support of their motion,

defendants filed a certification from the Morgan Stanley Executive Director and

Global Head of End User Technology Operations, in which he explained that he

"reviewed the metadata for the Jasicki CARE Email, which show that the Jasicki

CARE Email was marked as 'read' in [plaintiff's] mailbox." He further certified

as follows:

              Based on my review of Firm records, I can confirm that
              [plaintiff's] Exchange mailbox was working properly,
              operational and in use by [plaintiff] on September 2,
              2015. Any of the following actions would have caused
              the Jasicki CARE Email to be marked as "read":

                    a. [Plaintiff] selected the Jasicki CARE
                    Email and then opened the Jasicki CARE
                    Email for review;

                    b. [Plainiff] selected the Jasicki CARE
                    Email, which was displayed in the reading
                    pane;

                    c. [Plaintiff] selected the Jasicki CARE
                    Email, and then made a selection to mark
                    the Jasicki CARE Email as "Read"; or

                    d. [Plaintiff] set up a rule within her
                    Exchange mailbox to automatically mark
                    emails as "read." Morgan Stanley located
                    and collected a snapshot of [plaintiff's]

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                   mailbox, which . . . shows that there are a
                   number of emails [plaintiff] received on
                   September 2, 2015 that are not marked
                   "read." That fact indicates that [plaintiff]
                   did not have a rule set up within her
                   Exchange mailbox to automatically mark
                   emails as "read" on that date.

      Plaintiff's opposition to the motion argued there was no evidence she

agreed to the CARE Arbitration Program and the mere receipt of an email was

not enough to compel her to arbitrate her claims. She argued the disclaimers

within the email rendered the agreement to arbitrate illusory and the email's

reference to CARE as a part of Morgan Stanley's policies did not create an

express or implied contract to arbitrate. She asserted she did not knowingly or

voluntarily waive her right to a jury trial.

      The motion judge granted defendants' motion. She noted there was no

dispute plaintiff did not return the opt-out form and continued her employment

past the October 2 deadline.       The judge rejected plaintiff's argument the

arbitration agreement was illusory noting the disclaimer language referred only

to the "at-will employment relationship and makes clear that the agreement to

arbitrate does not affect the at-will employment status." The judge further

stated:




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            It is clear to the [c]ourt that . . . plaintiff received
      the e-mail. The e-mail was acknowledged in some form
      by having been marked as read.

            The [c]ourt is satisfied with the certifications
      submitted in support of the contention that the method
      by which an e-mail is marked as read requires some
      action on the part of the plaintiff, and . . . therefore, the
      [c]ourt as far as the question of whether the e-mail was
      actually received by the plaintiff is put aside . . . .

The judge found there was an agreement to arbitrate, stating:

            Reviewing the language of the e-mail in question
      here, the [c]ourt is satisfied that the e-mail clearly
      placed the plaintiff in this matter on notice, first that
      there was an expansion of the CARE arbitration
      program. On its face, the e-mail indicates that
      continued employment would certainly . . . constitute
      agreement to the arbitration agreement.

            The face of the e-mail references the arbitration
      agreement. Although it does not provide the actual
      terms of the arbitration agreement, it does highlight the
      fact that the plaintiff is to review the arbitration
      agreement as well as review the CARE guidebook.

               It indicates that it is important that the employee
      read and understand the arbitration agreement, and then
      it . . . actually . . . labels what the next steps would be.

            And there, it indicates again that continued
      employment with Morgan Stanley would constitute an
      agreement to be bound by the terms of the agreement,
      and then it indicates that the employee can select to opt
      out by signing and submitting an arbitration opt-out
      form.


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                  That creates a second step, a second level of
            assent. Not only does the employee have to continue
            employment, but the employee also must select not to
            sign an opt-out form.

                   And that satisfies the [c]ourt that that provides
            sufficient evidence . . . that the plaintiff assented and
            agreed to the terms of that arbitration agreement.

                  The plaintiff did not quarrel with the general
            principle that a failure to read the terms of the contract
            was not a defense.

      On appeal, plaintiff argues there was no agreement to arbitrate because

she did not execute an agreement and the motion judge erred by relying on

metadata which noted the CARE email was marked as read to conclude plaintiff

had agreed to arbitration. Plaintiff also argues the opt-out provision in the

CARE email did not constitute assent to arbitrate her claims.

      Our law strongly prefers the enforcement of arbitration agreements

because "arbitration is [the] favored method of resolving disputes." Garfinkel

v. Morristown Obstetrics & Gynecology Assocs., P.A.,  168 N.J. 124, 131

(2001). Our review of the validity of an arbitration agreement and the legal

determinations made by the trial court is de novo. Morgan v. Sanford Brown

Inst.,  225 N.J. 289, 302-03 (2016).

      In determining whether parties have waived their right to resolution of

their dispute before a court in favor of arbitration, we "cannot subject an

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arbitration agreement to more burdensome requirements than those governing

the formation of other contracts." Leodori v. Cigna Corp.,  175 N.J. 293, 302

(2003). An arbitration "provision must reflect that an employee has agreed

clearly and unambiguously to arbitrate the disputed claim.          Generally, we

determine a written agreement's validity by considering the intentions of the

parties as reflected in the four corners of the written instrument." Ibid.

      Employers and employees "may agree to arbitrate their disputes by

referring generally to an arbitration policy contained in a separate writing,

provided that the policy itself clearly reflects the employee's knowing and

voluntary waiver of rights." Id. at 308. "'[A]n e-mail, properly couched, can be

an appropriate medium for forming an arbitration agreement.'" Jaworski v. Ernst

& Young,  441 N.J. Super. 464, 474 n.3 (App. Div. 2015) (quoting Campbell v.

Gen. Dynamics Gov't Sys. Corp.,  407 F.3d 546, 555-56 (1st Cir. 2005)).

      "'[T]o enforce a waiver-of-rights provision[,] . . . the [c]ourt requires some

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

agreement itself.'" Leodori,  175 N.J. at 299 (quoting Garfinkel,  168 N.J. at 135).

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

customary and perhaps surest indication of assent." Leodori at 306-07. In the

absence of a signature, a court should "not assume that employees intend to


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waive [statutory] rights unless their agreements so provide in unambiguous

terms." Id. at 301 (alteration in original) (quoting Garfinkel,  168 N.J. at 135).

"[V]alid waiver[s] result[] only from an explicit, affirmative agreement that

unmistakably reflects the employee's assent." Leodori at 303. Knowledge of

the company's use of an arbitration program is not enough to signify intent to

waive rights. Id. at 306. However, employers need not "negotiate individual

agreements with their entire workforce to implement a companywide arbitration

policy." Id. at 307. Rather, the policy may be effectuated through a signature

or other explicit waiver of rights. Ibid.

      "As a general rule, one who does not choose to read a contract before

signing it cannot later relieve himself of its burdens. The onus [is] on plaintiff

to obtain a copy of the contract in a timely manner to ascertain what rights it

waived by beginning the arbitration process." Skuse v. Pfizer, Inc.,  244 N.J. 30,

54 (2020) (internal quotations omitted) (quoting Riverside Chiropractic Grp. v.

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

      In Skuse, our Supreme Court addressed the dissemination of an arbitration

agreement in a context similar to the one presented here. There, Pfizer's human

resources department emailed all employees announcing and linking its five-

page Arbitration and Class Waiver Agreement.  244 N.J. at 38. The email stated,


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"both [employees] 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." Id. at

39 (internal citations omitted). Under the frequently asked questions (FAQs)

section in the linked document, it stated employees must agree to the arbitration

agreement if they wish to continue their employment, continuation of

employment for sixty days constituted a contractual agreement, and employees

should consult their own attorney for legal questions. Ibid. In bold, the email

stated:

             You understand that your acknowledgement of this
             [a]greement is not required for the [a]greement to be
             enforced. If you begin or continue working for the
             [c]ompany sixty . . . days after receipt of this
             [a]greement, even without acknowledging this
             [a]greement, this [a]greement will be effective, and you
             will be deemed to have consented to, ratified and
             accepted this [a]greement through your acceptance of
             and/or continued employment with the [c]ompany.

             [Ibid.]

      The same day it sent the email, Pfizer sent a second email containing an

"assigned . . . activity" in the company's "module-based training program" on

the agreement, indicating the training was important because the agreement was




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a "condition of [their] employment." Id. at 40. The due date listed was the same

as the effective date of the agreement. Ibid.

      The training module included 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." Ibid. The second stated: "Click the 'Resources' tab in the upper-

right corner to review the Agreement [and] . . . print the Agreement and retain

for your records." Ibid. The third 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 . . . 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.

            [Id. at 41.]

Below this statement, "a box with an arrow pointing upward to that language

instructed the employee to 'CLICK HERE to acknowledge.'" Ibid. The fourth

slide thanked the employee for "reviewing" the agreement and provided an email

for questions. Ibid.




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      Skuse was an active employee when Pfizer transmitted the emails and

training module. Pfizer's records indicated she received all emails, and Pfizer

sent her an email confirming she completed the training module approximately

a month after receipt of the initial emails. Ibid. As a result, the trial court

dismissed Skuse's employment discrimination complaint and compelled

arbitration.

      We reversed the trial court because we found the transmission of the

arbitration agreement and training module by email was "'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 44. The Supreme Court

noted our concerns that "employees who work in offices are inundated with

incoming e-mails [and that we] took judicial notice that in order to deal with the

volume of e-mails . . . they receive, people frequently skim (or scroll through

without reading) written material sent to them digitally." Id. at 53 (internal

quotations and citations omitted). The Court further noted that we "doubt[ed]

. . . all . . . employees took the time to read the [a]greement linked to the module"

because defendant utilized the term "assigning" the "training module . . .

dilut[ing] the legal significance and necessary mutuality of the contractual

process." Ibid. (internal quotations and citations omitted).


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      Notwithstanding these concerns, the Court reversed our decision and

stated: "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[,]

. . . her failure to review Pfizer's communications would not invalidate the

[a]greement." Id. at 54. The Court concluded

            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 . . .
            for sixty days. Although Pfizer's "training module" was
            not an optimal method of conveying to Skuse her
            employer's arbitration policy, Pfizer's . . . e-mails, the
            link to the 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.

            [Id. at 61.]

      Here, similar to Skuse, plaintiff does not dispute that she received the

CARE email. The email subject line and its body unmistakably pertained to the

CARE Arbitration Program. Contrary to plaintiff's argument, the outcome in

Skuse did not turn on the multiplicity of communications sent by Pfizer. Rather,

as the Skuse Court noted, an employee's failure to review the contents of an

email does not invalidate an arbitration agreement. Moreover, arbitration was

not unilaterally imposed; plaintiff had time to either opt out or, as in Skuse,


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assent to arbitration by continuing to work for Morgan Stanley.       For these

reasons, we reject plaintiff's argument this dispute centers on metadata or that

defendants were required to prove the extent to which she read the CARE email,

beyond presenting objective evidence that she received the email, in order to

compel arbitration of plaintiff's claims.

      Affirmed.




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