On Thursday, March 4, 2021, the Honorable Anne E. Thompson, a Senior Judge for the United States District Court for the District of New Jersey, heard oral argument on a motion for summary judgment filed by the New Jersey Civil Justice Institute (“NJCJI”) and the U.S. Chamber of Commerce in their pending civil action against New Jersey’s Attorney General. This case seeks a declaratory judgment that N.J.S.A. 10:5-12.7 is unconstitutional as preempted by the Federal Arbitration Act (“FAA”), and also, seeks a permanent injunction against the Attorney General’s enforcement of the law. That statute, enacted by the New Jersey Legislature in 2019, effectively bars use of arbitration agreements in the employment context in New Jersey. NJCJI has consistently maintained that this constitutes a clear violation of the FAA, and aggressively lobbied against the law on that basis.

Thursday’s argument centered on four issues: Federal preemption, the plaintiffs’ associational standing, the plaintiffs’ organizational standing, and ripeness of the plaintiffs’ claims. Regarding federal preemption, the Attorney General failed to raise the issue in its earlier motion to dismiss, which was denied, and in its opposition to NJCJI’s motion for summary judgment. Accordingly, NJCJI argued that there was no genuine dispute as to preemption, and therefore, only summarized its legal position in that regard. Regarding ripeness. NJCJI was able to cite to Judge Thompson’s prior opinion denying the Attorney General’s motion to dismiss, which found the matter was ripe for disposition.

The core of the oral argument addressed the plaintiffs’ standing, both on associational and organizational grounds. Judge Thompson previously allowed limited discovery on the standing issues, and as a result, NJCJI and the U.S. Chamber produced evidence in support of standing that was not factually disputed by the State in its papers or during the argument. Rather, the State simply argued that more evidence was required before judgment as a matter of law could be warranted. Accordingly, the State requested that the plaintiffs’ motion be denied so that plenary discovery on the standing issues could occur. After hearing both sides’ arguments and asking limited questions, Judge Thompson reserved on her decision, which we expect to receive in the coming weeks.

NJCJI and the U.S. Chamber were both represented in this matter by Shalom D. Stone, Esq. of Stone Conroy, LLC and Archis A. Parasharami, Esq. of Mayer Brown.  NJCJI would like to thank both Shalom and Archis for their excellent advocacy on the motion.  NJCJI would also like to thank Daryl Joseffer, Esq. from the U.S. Chamber Litigation Center.