Supreme Court Will Review NAACP v. Foulke

The Supreme Court has granted a petition for certification to review the decision of the Appellate Division in NAACP of Camden County East v. Foulke Mgmt. Corp., 421 N.J. Super. 404 (App. Div. 2011).  The decision of the Appellate Division is discussed here.  The question presented, as described by the Clerk’s Office, is “[w]ere the arbitration provisions contained in various form documents that a consumer signed in connection with her purchase of a new motor vehicle from a New Jersey dealership enforceable?”  The Clerk’s Office does not always list all the questions implicated by the petition, so it may be that the case will present for review not only issues involving arbitration clauses but also the Appellate Division’s ruling about the standing of the NAACP to appear as a plaintiff alongside the individual plaintiff. 

The decision of the Appellate Division, written by Judge Sabatino for a unanimous panel, was scholarly and wise.  It is to be hoped that the Supreme Court will affirm that decision in all respects.  The standing issue should be easy, since the Appellate Division relied on settled New Jersey law to reach its conclusion.  The arbitration clause issues are complicated by the United States Supreme Court’s decision in AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011), which was discussed, at great length, here.  Judge Sabatino’s opinion followed Concepcion, despite the flaws of that opinion, but invalidated the arbitration clauses on other grounds.  That decision to invalidate the arbitration clauses was sound and deserves to be affirmed.