In Fazio v. Altice USA, the New Jersey Supreme Court clarified exactly how much proof a business must offer to establish that it delivered contract terms, including an arbitration clause, to a customer. The answer: far more than a generalized affidavit. For any party litigating the enforceability of consumer or platform agreements, Fazio is required reading.
Background
The plaintiff purchased cellular service at an Altice retail store. He was not shown the customer service agreement containing the arbitration clause; his receipt indicated documents would be emailed. After he filed a discrimination suit under the NJLAD, Altice moved to compel arbitration, supporting the motion with an employee affidavit describing the company's general practice of emailing service agreements to new customers.
The Decision
The Court held that under N.J.R.E. 406, evidence of a specific, repeated, and regular business habit or practice can create a rebuttable presumption that the business acted in conformity with that practice, in this case, that the agreement was actually emailed. But the proof must be specific. Altice's affidavit failed because it did not certify that an email is automatically generated upon a triggering event, did not identify whose job it was to send the email, did not describe what representatives routinely told customers, and did not explain how, when, or from whom the emails were sent. Without that detail, no presumption of delivery arose, and the Court reversed and remanded for a trial on whether the agreement was ever delivered.
What It Means for New Jersey Cases
Arbitration motions in New Jersey now rise or fall on operational evidence. A declaration reciting that the company “routinely sends” its terms will not survive Fazio. This matters enormously in the gig economy and platform space, where the enforceability of user arbitration agreements is often the single most consequential early question in the case, determining whether claims proceed as a putative class action in court or as individual arbitrations. Fazio gives the party resisting arbitration a concrete standard to hold the movant to, and it gives the party seeking arbitration a clear blueprint for what its proofs must contain.
It is worth remembering that delivery is only half the battle in New Jersey. The arbitration clause itself must still contain the clear and unambiguous waiver of court rights that our courts have long required. Fazio adds a distinct, threshold layer: before a court ever examines the language of the clause, the movant must prove the customer actually received it.
How We Put It to Work
When a motion to compel arbitration is in play, the evidentiary package decides it: declarations from personnel with actual knowledge of the sign-up flow, screenshots of each screen the user encountered, records of the specific user's acceptance event, and system logs of transmission. Where we are testing an adversary's motion, Fazio supplies the checklist for exposing generalized affidavits that cannot support the presumption. For business clients, an in-app clickwrap flow, where assent is captured and logged at the moment of account creation, is materially stronger under Fazio than any post-transaction email, and contracting flows should be structured accordingly. The parties that prevail on these motions going forward will be the ones that treated contract formation as an engineering problem before litigation ever began.
This article is provided for general informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship with Sanchez Maselli Trial Attorneys.