Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

Can You Enforce an Arbitration Clause on the Other Side Just Before Trial?

Author: Scarinci Hollenbeck, LLC

Date: May 10, 2013

Key Contacts

Back

The Supreme Court of New Jersey recently considered how late is “too late” to invoke an arbitration clause in a contract. The court accepted the case after lower courts reached opposing opinions of the issue.

In the recently decided Cole v. Jersey City Medical Center, the defendant waited until three days before trial to invoke its right to proceed to arbitration. The arbitration clause at issue was included in an employment agreement with the plaintiff, Karen Cole. The agreement provided, in pertinent part, that, “any claim, controversy or dispute between you and [the employer] . . . arising out of or relating to your employment, the cessation of your employment, or any matter relating to the foregoing . . . shall be submitted to and settled by arbitration . . . .”

Cole was hired by Liberty Anesthesia Associates, LLC (Liberty) to work as a Certified Registered Nurse Anesthetist at the Jersey City Medical Center (Medical Center). After refusing to submit to a drug test, her employment was terminated. Cole filed suit against the Medical Center alleging retaliation in violation of the Conscientious Employee Protection Act, among other claims. She later added Liberty as a defendant, and asserted many of the same claims.

After discovery was completed, Liberty and the Medical Center filed motions for summary judgment. Cole settled with the Medical Center, and the court ultimately dismissed several claims against Liberty. It then set a trial date of March 22, 2010 for the remaining claims.

Three days before trial, Liberty filed a motion to compel arbitration. Cole objected on the basis that Liberty had failed to raise the clause as a required affirmative defense and had willingly participated in the litigation for several years. Liberty explained that it did not raise the arbitration issue earlier because an arbitrator might have reached a different result than a jury if the claims against Liberty proceeded to trial and the nearly identical claims against the Medical Center proceeded in court.

The trial court granted Liberty’s motion and dismissed the case but the Appellate Division reversed. The state Supreme Court will now take on the issue of whether Liberty waived its right to arbitration. We will be closely watching this case and will provide a discussion of the decision as soon as it is published.

If you have any questions about this case or would like to discuss the legal issues involved, please contact me or the Scarinci Hollenbeck attorney with whom you work. 

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
SECURE 2.0 RMD Planning Strategies post image

SECURE 2.0 RMD Planning Strategies

How the Updated Law Shapes Retirement and Estate Planning The SECURE 2.0 Act of 2022 materially reshapes the required minimum distribution (RMD) landscape, extending tax deferral opportunities while accelerating distribution requirements for many beneficiaries. For high-net-worth individuals and families, these changes are not merely technical. They require a reassessment of retirement income strategies, beneficiary planning, […]

Author: Marc J. Comer

Link to post with title - "SECURE 2.0 RMD Planning Strategies"
Buying Commercial Property in New Jersey: Legal Guide for Small Businesses post image

Buying Commercial Property in New Jersey: Legal Guide for Small Businesses

Small businesses considering buying commercial property in New Jersey must evaluate a range of legal, financial, and operational factors. While ownership can offer long-term value and control, it also introduces significant risks if not properly structured. This guide outlines key considerations to help New Jersey business owners make informed decisions, minimize legal exposure, and successfully […]

Author: Robert L. Baker, Jr.

Link to post with title - "Buying Commercial Property in New Jersey: Legal Guide for Small Businesses"
The SEC’s Latest Guidance on Applying Federal Securities Laws to Tokenized Securities post image

The SEC’s Latest Guidance on Applying Federal Securities Laws to Tokenized Securities

On January 28, 2026, staff of the U.S. Securities and Exchange Commission’s Divisions of Corporation Finance, Investment Management, and Trading and Markets issued a joint statement clarifying how existing federal securities laws apply to tokenized securities. The SEC’s “Statement on Tokenized Securities” does not establish new law, but it does provide greater clarity on the […]

Author: Dan Brecher

Link to post with title - "The SEC’s Latest Guidance on Applying Federal Securities Laws to Tokenized Securities"
Common Legal Mistakes NYC and New Jersey Business Owners Make post image

Common Legal Mistakes NYC and New Jersey Business Owners Make

Operating a business in the New Jersey and New York City metropolitan region offers incredible opportunities, but it also requires navigating a dense and highly regulated legal environment. From entity formation to regulatory compliance, seemingly minor legal oversights can expose business owners to significant risk. In our work with businesses throughout the region, our attorneys […]

Author: Dan Brecher

Link to post with title - "Common Legal Mistakes NYC and New Jersey Business Owners Make"
What Founders Can Learn From Start-up Suits post image

What Founders Can Learn From Start-up Suits

High-profile founder litigation is more than just a media spectacle. For startup founders, these cases underscore the legal and structural risks that can arise when rapid growth outpaces formal oversight. While launching a new company can be both an exciting and deeply rewarding endeavor, founders must be mindful that it also comes with significant risks. […]

Author: Dan Brecher

Link to post with title - "What Founders Can Learn From Start-up Suits"
Corporate Governance Reviews: A Practical Guide for New Jersey Companies post image

Corporate Governance Reviews: A Practical Guide for New Jersey Companies

Every New Jersey company should periodically evaluate its governance framework. Strong corporate governance protects directors and officers, builds investor confidence, reduces litigation exposure, and positions a company for sustainable growth. The first quarter of the year is a great time to evaluate your corporate governance practices and perform any routine maintenance needed to keep that […]

Author: Ken Hollenbeck

Link to post with title - "Corporate Governance Reviews: A Practical Guide for New Jersey Companies"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form. By providing a telephone number and submitting this form you are consenting to be contacted by SMS text message. Message & data rates may apply. Message frequency may vary. You can reply STOP to opt-out of further messaging.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!