                     NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-5259-13T2

PAUL JAWORSKI, ALEXANDER
HAGGIS and ROBERT HOLEWINSKI,         APPROVED FOR PUBLICATION

     Plaintiffs-Appellants,                 July 23, 2015

                                         APPELLATE DIVISION
v.

ERNST & YOUNG US LLP, TRACEY
GUNTER and RICHARD BAKER,

     Defendants-Respondents.
_________________________________________

         Argued February 23, 2015 – Decided July 23, 2015

         Before Judges Lihotz, Espinosa and St. John.

         On appeal from Superior Court of New Jersey,
         Law Division, Hudson County, Docket No. L-
         5223-13.

         Christopher P. Lenzo argued the cause for
         appellants (Lenzo & Reis, LLC, attorneys;
         Mr. Lenzo, of counsel and on the briefs).

         Robert T. Szyba (Seyfarth Shaw LLP) argued
         the cause for respondents (Mr. Szyba and
         Loren Gesinsky (Seyfarth Shaw LLP), of the
         New York bar, admitted pro hac vice,
         attorneys; Mr. Szyba and Mr. Gesinsky, on
         the brief).

     The opinion of the court was delivered by

ST. JOHN, J.A.D.

     Plaintiffs Paul Jaworski, Alexander Haggis and Robert

Holewinski appeal from the trial court's order compelling
arbitration of their age-discrimination suit against defendants

Ernst & Young US LLP (EY) and two of its executives, Tracey

Gunter and Richard Baker.    Plaintiffs challenge the

enforceability of EY's mandatory arbitration policy on

constitutional, statutory and common law grounds.       The employees

were provided notice of changes to the arbitration policy by

electronic distribution.    We must determine whether, if the

policy states assent is given by continued employment, remaining

employed with the company evinces an unmistakable indication

that the employee affirmatively has agreed to arbitrate his

claims pursuant to the changed policy.       Having reviewed the

arguments advanced in light of the record and governing law, we

affirm.

                                  I.

    The record discloses the following facts and procedural

history.   Plaintiffs are former employees of EY's Secaucus

office whose employment was terminated in August 2012.      Jaworski

worked for EY for thirteen years and was a Finance Director in

the Global Finance Group before his employment was terminated at

the age of sixty-one.   Haggis was fifty-seven years old when EY

terminated his employment after seventeen years, at which time

he was a Manager of Accounting.       Holewinski worked at EY for

over eleven years before he was fired, at age fifty-five, while




                                  2                           A-5259-13T2
working as an Associate Director of Finance in the Global

Infrastructure Group.

    In August 2002, EY initiated the Common Ground Program (the

Program), a set of mandatory alternative dispute resolution

(ADR) procedures for its employees.   The Program provided in

pertinent part:

         All claims, controversies, or other disputes
         between [EY] and an Employee that could
         otherwise be resolved by a court, [subject
         to limited exceptions enumerated within]
         ("Covered Disputes"), shall be resolved
         through the Program, and both [EY] and the
         Employee   expressly   waive  any  right  to
         resolve any Covered Dispute through any
         other means.    Neither [EY] nor an Employee
         will be able to sue in court in connection
         with a Covered Dispute.

         [(Emphasis added).]

    As a non-exhaustive list of examples of Covered Disputes

within the Program's ambit, EY provided: (1) "[c]laims based on

federal statutes" including civil rights and anti-discrimination

laws; (2) "[c]laims based on state statutes and local ordinances

including state and local anti-discrimination laws"; (3)

"[c]laims based on common law theories such as tort and

contract"; (4) "[c]laims concerning wages, salary and incentive

compensation programs" subject to limited exceptions; and (5)

"[c]laims concerning application, interpretation and enforcement

of the Program."   The provision further emphasized that "[a]ll




                                3                           A-5259-13T2
Covered Disputes, whether or not listed here, must be resolved

through the Program."

    In the event of a Covered Dispute, the Program first

required "the parties . . . try to resolve the [dispute] through

mediation" provided by the CPR Institute for Dispute Resolution

(CPR).   Should a dispute remain unresolved following mediation,

either party was then able to proceed with binding arbitration,

also through CPR.   Any dispute for $250,000 or less was to be

decided by one arbitrator, whereas any controversy involving

more than $250,000, "or if the party initiating [arbitration] so

chooses," went before a three-arbitrator panel.   As to

discovery, the program limited each party to one deposition pre-

hearing, unless the arbitrator(s) found "the party seeking the

[additional] discovery ha[d] a substantial need for it and . . .

the discovery sought [was] consistent with the expedited nature

of arbitration and not unduly burdensome."

    In addition to requiring the initiating party to pay any

filing fees as well as the party's own attorney's fees, the

Program provided:

          The parties' intent is for the cost of the
          arbitration (including administration and
          arbitrator fees) to be shared equally to the
          extent permitted by law.       However, the
          portion of the cost to be paid by an
          Employee shall be adjusted to the extent, if
          any, necessary for the parties' agreement to




                                4                          A-5259-13T2
         arbitrate to be enforced in accordance with
         applicable law.

    Finally, the ADR policy included a provision on Termination

or Amendment of the Program:

         [EY] may propose termination or amendment of
         the program at any time by providing notice
         to Employees through the Daily Connection
         [daily email bulletin] or other electronic
         notice.   An Employee indicates his or her
         agreement to the proposed amendment or
         termination,   and   such  proposed   changes
         become effective as to that Employee, by
         continuing his or her employment with [EY]
         for at least three days after the notice is
         provided.    Termination or amendment shall
         not affect a Covered Dispute as to which
         [mediation] has already been initiated.

         [(Emphasis added).]

    On July 29, 2002, EY announced the implementation of the

Program to all United States (U.S.) personnel, including

plaintiffs, via its Daily Connection email bulletin.   The July

29 message provided a brief synopsis of the Program and directed

the reader to two links, one leading to the policy's provisions

in their entirety in EY's employee manual and the other to an

article about the Program.

    On March 23, 2006, EY announced revisions to the Program

through a Daily Connection message to all U.S. employees,

including plaintiffs.   The three main changes, as identified in

the email, were: (1) "Employees now have a choice of three ADR

providers" — CPR, the American Arbitration Association (AAA) and



                                5                           A-5259-13T2
JAMS; (2) "[e]xcept for a fee equal to what it would have cost

the employee to sue in court, the firm will pay the entire cost

of mediation (not including any attorney's fees)"; and (3)

"[d]isputes up to $1 million will be heard by a single

arbitrator, rather than by a three-arbitrator panel."

    The amendments also clarified certain important provisions

through highlighting and italicization, unlike the 2002 version.

For instance, under the 2006 Program, "[n]either [EY] nor an

employee will be able to sue in court in connection with a

Covered Dispute."   "All Covered Disputes . . . must be resolved

through the Program."   Further, "[a]n Employee indicates his or

her agreement to the Program and is bound by its terms and

conditions by beginning or continuing employment with [EY] after

May 1, 2006 (the 'Effective Date')."

    The 2006 amendments provided for expanded discovery,

including a party's right to depose three individuals prior to

any arbitration hearing.   As to arbitration fees:

         1. Filing and administrative fees.     [EY]
         will pay all filing and administrative fees
         in connection with the arbitration, except
         as follows:

              a.     An     Employee    starting
              [arbitration] shall contribute the
              Court   Equivalent   Fee  or   the
              Employee's fee specified in the
              Arbitration Rules, whichever is
              less.   An Employee who has paid
              the   Court   Equivalent  Fee   in


                                6                          A-5259-13T2
              [mediation] need not contribute
              when initiating [arbitration].

                   . . . .

         2. Arbitrator fees and other costs.      The
         parties' intent is for the Arbitrator fees
         and other costs of the arbitration, other
         than filing and administrative fees, to be
         shared equally to the extent permitted by
         law and the Arbitration Rules. However, the
         portion of the cost to be paid by an
         Employee will be adjusted to the extent, if
         any, necessary for the parties' agreement to
         arbitrate to be enforced.

    Finally, the 2006 policy amended the "Termination or

Amendment" clause, so that:

         [EY] may propose termination or amendment of
         the Program by providing notice to Employees
         through   the  Daily   Connection  or   other
         electronic notice on at least two occasions.
         An Employee indicates his or her agreement
         to the proposed amendment or termination,
         and such proposed change becomes effective
         as to that Employee, by continuing his or
         her employment with [EY] for at least thirty
         days after the second notice is provided.

         [(Emphasis added).]

However, as in the original policy, "[t]ermination or amendment

will not affect a Covered Dispute as to which [mediation] had

been initiated when the termination or amendment was proposed."

    On April 25, 2006, EY sent the revised terms to all U.S.

personnel via email.   EY's records reflect that plaintiffs

received the April 25 email.




                                7                          A-5259-13T2
    On June 18, 2007, EY distributed another revised version of

the Program via email to U.S. personnel, including plaintiffs.

As with the previous iterations of the Program, an employee

indicates agreement with its provisions by continuing employment

with EY after the "Effective Date," in this case July 18, 2007.

The main substantive difference between the 2006 and the 2007

versions is that under the latter an employee may only choose

between AAA and JAMS, not CPR, for purposes of mediation and

arbitration.

    On August 3, 2007, Jaworski signed an EY Employment

Agreement acknowledging and assenting to the terms of the

Program.    The last paragraph of the agreement states:

            I HAVE READ THIS AGREEMENT AND ATTACHMENT
            AND FULLY UNDERSTAND THEIR TERMS.          I
            ACKNOWLEDGE THAT I HAVE AGREED TO WAIVE ANY
            RIGHT I MAY HAVE TO HAVE A DISPUTE BETWEEN
            MYSELF AND [EY] DETERMINED BY A COURT OF LAW
            AND THAT ALL SUCH DISPUTES SHALL BE RESOLVED
            THROUGH MEDIATION AND ARBITRATION.

On January 27, 2010, Haggis signed a similar contract agreeing

to arbitration of any Covered Disputes.    Holewinski, however,

signed his Employment Agreement on May 19, 2004, but did not

sign a new agreement after either the 2006 or 2007 amendments to

the Program became effective.    Nevertheless, Holewinski, Haggis

and Jaworski all continued their employment with EY after July

18, 2007.




                                 8                          A-5259-13T2
     Subsequent to their termination, plaintiffs filed the

instant suit in the Law Division.    In lieu of an answer,

defendants moved to dismiss and compel arbitration, which

plaintiffs opposed.   The judge denied defendants' motion,

concluding, although plaintiffs' claims fell within the meaning

of Covered Disputes under the Program, because the record was

"devoid of any indication that . . . plaintiffs signed any

paperwork regarding the arbitration agreement," the Program was

unenforceable as applied to them.1   Defendants moved for

reconsideration and, in support of their motion, attached copies

of the three agreements signed by plaintiffs individually.

Thereafter, the trial court granted defendants' motion for

reconsideration and dismissed plaintiffs' claims without

prejudice in favor of arbitration.

     This appeal ensued.

                               II.

     We begin by noting the applicable legal principles that

guide our analysis.   Orders compelling or denying arbitration

are deemed final and appealable as of right.    See R. 2:2-3(a);

Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 186 (2013).       We

exercise plenary review of the trial court's decision regarding


1
    The signed employment agreements referenced above were not
included with defendants' initial filing.



                                9                            A-5259-13T2
the applicability and scope of an arbitration agreement.     See

Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 446

(2014), cert. denied, 83 U.S.L.W. 3888 (U.S. June 8, 2015).

Similarly, the issue of whether parties have agreed to arbitrate

is a question of law that is reviewed de novo.   See Hirsch,

supra, 215 N.J. at 186; see also Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's

interpretation of the law and the legal consequences that flow

from established facts are not entitled to any special

deference.").   Nevertheless, "[i]n reviewing such orders, we are

mindful of the strong preference to enforce arbitration

agreements, both at the state and federal level."   Hirsch,

supra, 215 N.J. at 186.

                                A.

    We first must determine which iteration of the Program

controls as to each plaintiff's employment relationship with EY.

Jaworski and Haggis signed employment agreements on August 3,

2007, and January 27, 2010, respectively.   These agreements

unambiguously referenced and assented to the terms of the

Program, including the 2007 amendments, particularly with

regards to "WAIV[ING] ANY RIGHT [THE EMPLOYEE] MAY HAVE TO HAVE

A DISPUTE BETWEEN MYSELF AND [EY] DETERMINED BY A COURT OF LAW."

Jaworski's and Haggis' signatures constituted "explicit,




                                10                          A-5259-13T2
affirmative agreement[s] that unmistakably reflect[ed] the

employee[s'] assent" to be bound by the 2007 amendments to the

Program and arbitrate any employment-related disputes in lieu of

proceeding in court.   See Leodori v. Cigna Corp., 175 N.J. 293,

303, cert. denied, 540 U.S. 938, 124 S. Ct. 74, 157 L. Ed. 2d

250 (2003).   Therefore, there can be no dispute they are each

bound by its terms as in force as of each party's termination

date.

     However, Holewinski signed his employment agreement with EY

in 2004, subsequent to the initial enactment of the Program in

2002, but before the later amendments.     Relying on Leodori, he

argues he cannot be forced to arbitrate under the policy in

effect as of his termination date, because he never explicitly

indicated his agreement thereto.     Any attempt to compel

arbitration, Holewinski submits, must be done under the original

2002 Program.2   We disagree.

     In Leodori, the Court declined to enforce an employment

agreement's arbitration provision where there was no evidence

the plaintiff-employee assented to the agreement's terms through

his signature, and where there was no "other unmistakable

2
    Holewinski goes on to challenge the 2002 Program as
unenforceable on other grounds, specifically, for failing to
provide for a neutral arbitration forum. For the reasons that
follow, we need not address this argument, which is limited
solely to the Program in its original form.



                                11                           A-5259-13T2
indication that the employee affirmatively had agreed to

arbitrate his claims."   Leodori, supra, 175 N.J. at 306-07.

However, in reaching its decision, the Court clarified, "'[t]o

enforce a waiver-of-rights provision in this setting, the Court

requires some concrete manifestation of the employee's intent as

reflected in the text of the agreement itself.'"   Id. at 300

(alteration in original) (emphasis added) (quoting Garfinkel v.

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

135 (2001)).

    Here, unlike Leodori, where the employer's "own documents

contemplated [the employee]'s signature as a concrete

manifestation of his assent," id. at 306,   EY's ADR policy

provided: "An Employee indicates his or her agreement to the

Program and is bound by its terms and conditions by beginning or

continuing employment with [EY] after July 18, 2007 (the

'Effective Date')."   Not only did Holewinski continue with EY

after the Effective Date, thus manifesting his intent to be

bound pursuant to the unambiguous and specifically-emphasized

terms of the Program, he did so for an additional five years

until his termination in 2012.   See Martindale v. Sandvik, Inc.,

173 N.J. 76, 88-89 (2002) ("[I]n New Jersey, continued

employment has been found to constitute sufficient consideration

to support certain employment-related agreements." (citing




                                 12                        A-5259-13T2
Quigley v. KPMG Peat Marwick, LLP, 330 N.J. Super. 252, 265

(App. Div.), certif. denied, 165 N.J. 527 (2000); Hogan v.

Bergen Brunswig Corp., 153 N.J. Super. 37, 43 (App. Div.

1977))).3

     Therefore, consistent with Leodori, we conclude Holewinski,

Jaworski and Haggis are bound by the Program in its iteration as

of the date of their termination.

                               B.

     Plaintiffs challenge EY's mandatory ADR policy as

unenforceable on several grounds.   Specifically, they aver: (1)

the Program constitutes an illusory agreement because EY retains

the right to unilaterally modify its terms; (2) plaintiffs never

agreed to arbitrate claims relating to the termination of their

employment; (3) the Program is not a valid waiver of plaintiffs'

constitutional and statutory rights to a jury trial; and (4) the

Program is unconscionable since it imposes substantial forum




3
    Moreover, although plaintiffs do not challenge the adequacy
of the email notice of changes to the Program, we agree with
those courts that have held "an e-mail, properly couched, can be
an appropriate medium for forming an arbitration agreement."
Campbell v. Gen. Dynamics Gov't Sys. Corp., 407 F.3d 546, 555-56
(1st Cir. 2005) ("[W]e easily can envision circumstances in
which a straightforward e-mail, explicitly delineating an
arbitration agreement, would be appropriate."). EY's June 18,
2007 email to employees contained the Program's terms in their
entirety, with special emphasis on those portions affecting
employees' rights.



                               13                          A-5259-13T2
costs on plaintiffs they would not incur if proceeding in a

court of law.   We address each argument seriatim.

     Plaintiffs first argue the Program constitutes an illusory

promise because, given EY's right to modify or terminate, it

impermissibly reserves the decision whether to resolve a

particular employment-related dispute through mediation and

arbitration to EY's sole discretion.4   Moreover, they contend the

notice provision concerning when and how any amendments to EY's

ADR policy take effect is functionally meaningless, because an

employee has no means of rejecting a proposed amendment short of

quitting his or her job.

     As a general matter, both the Federal Arbitration Act

(FAA), 9 U.S.C.A. §§ 1-16, and the New Jersey Arbitration Act

(NJAA), N.J.S.A. 2A:23B-1 to -32, promote federal and state


4
    Plaintiffs concede there is no controlling New Jersey
precedent supporting this proposition, but rely upon a litany of
decisions from other jurisdictions to contend EY's "unilateral
reservation of the right to modify or terminate" the arbitration
Program invalidates it. See Morrison v. Amway Corp., 517 F.3d
248, 254-55 (5th Cir. 2008); Al-Safin v. Circuit City Stores,
Inc., 394 F.3d 1254, 1259-60 (9th Cir. 2005); Ingle v. Circuit
City Stores, Inc., 328 F.3d 1165, 1179 (9th Cir. 2003), cert.
denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204
(2004); Floss v. Ryan's Family Steak Houses, Inc., 211 F.3d 306,
315-16 (6th Cir. 2000), cert. denied, 531 U.S. 1072, 121 S. Ct.
763, 148 L. Ed. 2d 664 (2001); Keanini v. United Healthcare
Servs., Inc., 33 F. Supp. 3d 1191, 1195 (D. Haw. 2014); Phox v.
Atriums Mgmt. Co., Inc., 230 F. Supp. 2d 1279, 1282-83 (D. Kan.
2002); Cheek v. United Healthcare of the Mid-Atl., Inc., 378 Md.
139, 161 (2003).



                                14                         A-5259-13T2
policies favoring arbitration as a means of resolving disputes

by establishing the validity of arbitration provisions.     See 9

U.S.C.A. § 2; N.J.S.A. 2A:23B-6.     Section 2 of the FAA states

such provisions "shall be valid, irrevocable, and enforceable,

save upon such grounds as exist at law or in equity for the

revocation of any contract," which the United States Supreme

Court has interpreted as reflecting the "'fundamental principle

that arbitration is a matter of contract.'"     AT&T Mobility LLC

v. Concepcion, 563 U.S. ___, ___, 131 S. Ct. 1740, 1745, 179 L.

Ed. 2d 742, 751 (2011) (quoting Rent-A-Center, W., Inc. v.

Jackson, 561 U.S. 63, 67, 130 S. Ct. 2772, 2776, 177 L. Ed. 2d

403, 410 (2010)); see also N.J.S.A. 2A:23B-6 (mirroring FAA's

language).

    Due to the preemptive effect of the FAA, a state may not

invalidate an agreement to arbitrate on public-policy grounds or

by defenses "'that apply only to arbitration or that derive

their meaning from the fact that an agreement to arbitrate is at

issue.'"   Atalese, supra, 219 N.J. at 441 (quoting Concepcion,

supra, 563 U.S. at ___, 131 S. Ct. at 1746, 177 L. Ed. 2d at

751).   However, "state courts remain free to decline to enforce

an arbitration provision by invoking traditional legal doctrines

governing the formation of a contract and its interpretation."

NAACP of Camden Cnty. E. v. Foulke Mgmt. Corp., 421 N.J. Super.




                                15                          A-5259-13T2
404, 428 (App. Div.), certif. granted, 209 N.J. 96 (2011),

appeal dismissed, 213 N.J. 47 (2013).

    Under general principles of contract law, an agreement,

including one to arbitrate disputes, based only upon an illusory

promise is unenforceable.   See Del Sontro v. Cendant Corp., 223

F. Supp. 2d 563, 578 (D.N.J. 2002) (citing Bryant v. City of

Atl. City, 309 N.J. Super. 596, 621 (App. Div. 1998)).   "An

illusory promise has been defined as[] a 'promise which by [its]

terms make[s] performance entirely optional with the promisor

whatever may happen, or whatever course of conduct in other

respects he may pursue.'"   Bryant, supra, 309 N.J. Super. at 620

(second and third alterations in original) (quoting Restatement

(Second) of Contracts, § 2 cmt. e (1979)) (internal quotations

marks omitted); see also Customized Distribution Servs. v.

Zurich Ins. Co., 373 N.J. Super. 480, 493 (App. Div. 2004) ("An

illusory promise is defined as one 'in which the promisor does

not bind himself.'" (quoting Black's Law Dictionary 1213 (6th

ed. 1990))), certif. denied, 183 N.J. 214 (2005).    Generally,

however, "courts should seek to avoid interpreting a contract

such that it is deemed illusory."    Bryant, supra, 309 N.J.

Super. at 621 (citing Russell v. Princeton Labs., Inc., 50 N.J.

30, 38 (1967); Nolan v. Control Data Corp., 243 N.J. Super. 420,

431 (App. Div. 1990)).




                                16                         A-5259-13T2
     Here, despite plaintiffs' suggestions otherwise, the

Program was not founded on an illusory promise by EY to resolve

any Covered Disputes through arbitration.   The provision

covering Termination or Amendment of the Program reads:

          [EY] may propose termination or amendment of
          the Program by providing notice to Employees
          through   the  Daily   Connection  or   other
          electronic notice on at least two occasions.
          An Employee indicates his or her agreement
          to the proposed amendment or termination,
          and such proposed change becomes effective
          as to that Employee, by continuing his or
          her employment with [EY] for at least thirty
          days after the second notice is provided.

          [(Emphasis added).]

On its face, the provision provides if EY changes its

arbitration policy, even in response to a previously-accrued

claim, any change does not become binding on a particular

employee until thirty days after he or she receives the second

electronic notice of the amendment.   Construing the Termination

or Amendment clause's language as plaintiffs suggest would

functionally read out the notice provision.5


5
    Plaintiffs' extra-jurisdictional authority, most of which is
readily distinguishable, need not be addressed at length. See
Morrison, supra, 517 F.3d at 256 (employer sought to
retroactively apply ADR policy to facts pre-existing the
proposal or adoption thereof); Al-Safin, supra, 394 F.3d at 1260
(employer argued amendment to ADR policy provided reasonable
notice to former employees); Floss, supra, 211 F.3d at 315-16
(employer retained the "right to alter the applicable rules and
procedures without any obligation to notify"); Keanini, supra,
                                                      (continued)


                                17                          A-5259-13T2
    Moreover, plaintiffs erroneously seek to treat the language

that "[t]ermination or amendment will not affect a Covered

Dispute as to which [mediation] has been initiated when the

termination or amendment was proposed" as exhaustive, so that

the only disputes to which an amendment to the Program would not

apply are those already in mediation at the time EY announced

the change.   No such exhaustiveness is explicit or even

suggested in the language of that sentence itself or the

surrounding provisions.   Therefore, even if EY altered the

Program before an employee initiated mediation for an accrued

claim, that employee, pursuant to the explicit terms of the

policy, would have thirty days to initiate before the proposed

amendment altered his or her rights under the former language.

    This reading of the notice provision does not render the

language regarding the inapplicability of any termination or

amendment to a Covered Dispute for which mediation has been



(continued)
33 F. Supp. 3d at 1195 (ADR policy provided: "All arbitrations
shall be conducted in accordance with the Policy in effect on
the date [employer] receives the Demand for Arbitration"
(emphasis added)); Phox, supra, 230 F. Supp. 2d at 1283
(employer reserved "the right to alter, amend, eliminate or
modify [the arbitration] agreement prior to the initiation of
any proceeding controlled or falling under the terms of th[e
a]greement"); Cheek, supra, 378 Md. at 149 (employer retained
"the right to alter, amend, modify, or revoke the . . . [p]olicy
at its sole and absolute discretion at any time with or without
notice").



                                18                         A-5259-13T2
initiated meaningless or superfluous.   Rather, the latter

clarifies that an employee who has already begun mediation need

not take any additional action post-proposal of an amendment in

order to preserve his or her rights under the status quo of the

Program, pre-amendment.

    In light of the principle that "courts should seek to avoid

interpreting a contract such that it is deemed illusory,"

Bryant, supra, 309 N.J. Super. at 621, our construction of the

Termination or Amendment clause provides a sound and equitable

response to the parties' concerns.   First, an employer is able

to respond to developments in the law by adopting changes to its

ADR policy without the prohibitively burdensome and costly

obligation to negotiate the terms with each and every one of its

employees.   Indeed, we note that the facts of this case

underscore the wisdom of endowing employers with such

flexibility.   Even a cursory review of EY's ADR policy, as it

has developed since its initial enactment in 2002, demonstrates

EY has repeatedly responded to positive developments in the law

to amend its ADR procedures to provide greater, not fewer,

protections for its employees in resolving employment-related

disputes through ADR.

    Equally important, employees need not fear that an employer

may change the terms to retroactively alter an employee's




                                19                           A-5259-13T2
rights.   All an employee must do, pursuant to the unambiguous

terms of the agreement, to ensure he or she can arbitrate under

the terms in existence at the time of accrual is provide written

notice to EY of the intention to mediate no later than thirty

days after receiving the second electronic notice of a proposed

amendment to or termination of the Program.   We therefore

determine EY's ADR Program is not unenforceable as an illusory

contract.

    Plaintiffs next argue the trial court erred in dismissing

their suit in favor of arbitration because they never agreed to

arbitrate claims relating to the termination of their

employment.   Relying on Garfinkel and Quigley, they contend EY's

failure to include language relating to "discharge," "dismissal"

or "termination" in defining what constitutes a Covered Dispute

subject to mandatory arbitration removes plaintiffs' claims

arising from termination from the Program's ambit.   We are not

persuaded.

    In Garfinkel, the Court concluded an arbitration provision,

which stated "that 'any controversy or claim' that arises from

the [employment] agreement or its breach shall be settled by

arbitration," was "insufficient to constitute a waiver of [the]

plaintiff's" statutory claims.   Garfinkel, supra, 168 N.J. at

134; see also Quigley, supra, 330 N.J. Super. at 272 (noting the




                                 20                          A-5259-13T2
lack of any reference to statutory claims in arbitration

clause).    However, in providing guidance, the Court advised:

            "The better course would be the use of
            language reflecting that the employee, in
            fact, knows that other options such as
            federal and state administrative remedies
            and   judicial   remedies  exist;   that   the
            employee also knows by [agreeing to] the
            contract,    those   remedies   are    forever
            precluded; and that, regardless of the
            nature of the employee's complaint, he or
            she knows that it can only be resolved by
            arbitration."

            [Garfinkel, supra, 168 N.J. at 135 (quoting
            Alamo Rent A Car, Inc. v. Galarza, 306 N.J.
            Super. 384, 394 (App. Div. 1997)).]

    Plaintiffs contended their claims arose under the Law

Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.        Unlike

the provisions in Garfinkel or Quigley, EY's Program explicitly

states "[c]laims based on state statutes and local ordinances,

including state and local anti-discrimination laws," are Covered

Disputes.    By specifically including state statutory anti-

discrimination claims as Covered Disputes, EY clearly and

unequivocally put plaintiffs on notice that any claims arising

under the LAD, regarding termination or otherwise, were subject

to mandatory arbitration.    See also Atalese, supra, 219 N.J. at

444 ("No particular form of words is necessary to accomplish a

clear and unambiguous waiver of rights.").




                                 21                            A-5259-13T2
    Plaintiffs next argue the ADR policy is not a valid waiver

of their constitutional and statutory rights to a jury trial.

They aver the decisions in Atalese and State v. Blann, 217 N.J.

517 (2014), when read in conjunction,

         stand for the proposition that when parties
         seek to arbitrate a claim that would
         otherwise be submitted to a jury, the
         arbitration   agreement  must   inform   the
         parties of (1) the number of jurors, (2) the
         parties' rights to choose the jurors, (3)
         how many jurors would have to agree on a
         verdict, and (4) who will decide the dispute
         instead of the jurors.

This argument is similarly unavailing.

    In Atalese, the Court emphasized:

         [W]hen a contract contains a waiver of
         rights — whether in an arbitration or other
         clause — the waiver "must be clearly and
         unmistakably established."  Thus, a "clause
         depriving a citizen of access to the courts
         should clearly state its purpose."   We have
         repeatedly stated that "[t]he point is to
         assure that the parties know that in
         electing   arbitration   as  the   exclusive
         remedy, they are waiving their time-honored
         right to sue."

         [Atalese, supra, 219 N.J. at 444 (second
         alteration in original) (quoting Garfinkel,
         supra, 168 N.J. at 132).]

    Unlike the arbitration clause struck down in Atalese, here,

EY's written ADR policy unambiguously provides, with special

emphasis through highlighting and italicization, "[n]either [EY]

nor an Employee will be able to sue in court in connection with




                               22                        A-5259-13T2
a Covered Dispute."   Therefore, the Program complies with

Atalese and plaintiffs' arguments to the contrary are without

merit.   Furthermore, we find plaintiffs' contention that Blann,

which addressed the issue of when a criminal defendant's waiver

of a jury trial was knowing and voluntary, see Blann, supra, 217

N.J. at 518, is applicable in resolving the present dispute to

be without sufficient merit to warrant further discussion in a

written opinion.   R. 2:11-3(e)(1)(E).

    Finally, plaintiffs contend the arbitration agreement is

unconscionable because it exposes them to significant expenses

related to the cost of paying arbitrators, which would not be

incurred in a court of law.   Plaintiffs rely on several extra-

jurisdictional decisions to argue cost-sharing provisions for

arbitration expenses are invalid.    Additionally, plaintiffs

point to a footnote in Atalese, where the Court noted that its

opinion "should not be read to approve that part of the

arbitration clause that states: 'The costs of arbitration,

excluding legal fees, will be split equally or born by the

losing party, as determined by the arbitrator.'"     Atalese,

supra, 219 N.J. at 448 n.3.   Plaintiffs argue this statement

implicitly invalidates EY's fee-sharing provision.

    The Supreme Court has recognized that "the prospects of

having to shoulder all the costs of arbitration could chill




                                23                           A-5259-13T2
. . . [plaintiffs] from pursuing their statutory claims through

mandatory arbitration."    Delta Funding Corp. v. Harris, 189 N.J.

28, 42 (2006).   In Delta Funding, the Court invalidated an

arbitration cost-shifting provision that potentially "could

force [the plaintiff-consumer] to bear the risk that she will be

required to pay all arbitration costs" as an unconscionable

"deterrent to the vindication of her statutory rights."     Id. at

43.   In Atalese, the Court again expressed its displeasure with

terms that potentially shift the entire cost of arbitration to

the losing party.     See Atalese, supra, 219 N.J. at 448 n.3.

      However, both Delta Funding and Atalese are

distinguishable.6   Here, unlike those matters, EY's fee-sharing

provision does not provide for the potential shifting of the

entire cost of arbitrating to a non-prevailing employee.

Rather, the provision states: "The parties' intent is for

Arbitrator fees and other costs of the arbitration . . . to be

shared equally to the extent permitted by law and the

Arbitration Rules."    Any portion an employee might pay towards

arbitration costs is to be limited by substantive law and


6
    Alexander v. Anthony International, L.P., 341 F.3d 256 (3d
Cir. 2003), upon which plaintiffs also rely, is similarly
distinguishable. See id. at 267-68 (invalidating fee provision
requiring losing party to "bear the costs of the arbitrator's
fees and expenses").




                                  24                        A-5259-13T2
arbitration rules.7    There is no language suggesting employees

would have to shoulder the entire pecuniary burden of the

arbitration process.    Therefore, we determine EY's fee-sharing

provision does not render its ADR policy unconscionable.8

     For these reasons, we conclude EY's ADR policy, as

reflected in the 2007 iteration of its Program, is valid and

enforceable as to plaintiffs, and hold the trial court properly

dismissed the complaint in favor of mandatory arbitration.

     Affirmed.




7
    Both AAA's and JAMS' rules governing arbitration of
employment-related disputes limit an employee's financial burden
to the initial filing fee, with the employer being responsible
for the balance of the costs. See American Arbitration
Association, Employment Arbitration Rules & Mediation Procedures
1-2 (Nov. 1, 2014), available at https://www.adr.org/
aaa/ShowPDF?doc=ADRSTAGE2025292; JAMS, Employment Arbitration
Rules & Procedures 26 (July 1, 2014), available at
http://www.jamsadr.com/files/Uploads/Documents/JAMS-
Rules/JAMS_employment_arbitration_rules-2014.pdf.
8
    Furthermore, even if the fee-sharing provision was
unconscionable, which we hold it is not, the Program contains a
clause providing for broad severability in the event any portion
of its terms is found unenforceable. See Delta Funding, supra
189 N.J. at 46 ("[I]f an arbitrator were to interpret all of the
disputed provisions in a manner that would render them
unconscionable, we have no doubt that those provisions could be
severed [in light of the arbitration policy's broad severability
clause] and that the remainder of the arbitration agreement
would be capable of enforcement.").



                                 25                         A-5259-13T2
