The U.S. Supreme Court’s recent decision in Kindred Nursing Centers v. Clark, 2017 WL 2039160 (May 15, 2017), calls into question the continuing viability of the New Jersey Supreme Court’s decision in Atalese v. U.S. Legal Services Group, 219 N.J. 430 (2014), cert. denied, 135 S.Ct. 2804 (2015), under the Federal Arbitration Act (FAA).
In Atalese, the New Jersey Supreme Court invalidated an arbitration provision that “did not clearly and unambiguously” state that the plaintiff was “surrendering her right [to be] in court.” Since Atalese, New Jersey courts have invalidated arbitration provisions that failed to comply with the Atalese “clear and unambiguous” rule. However, the U.S. Supreme Court’s decision in Kindred Nursing suggests that any state rule requiring such a “clear and unambiguous” waiver of a court and jury trial may be inherently hostile to arbitration and, therefore, preempted.
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