Appellate Division Oral Argument of the Week: Can a Party That Expressly Waived Arbitration in an Appearance Before the Court Nonetheless Demand Arbitration? | NJ Appellate Law Blog – NJ Appellate Lawyer Bruce D. Greenberg blogs about Appeals and Appellate Law Practice

On Thursday, March 13, a panel of Part C of the Appellate Division will hear oral argument in Gallardo v. Ginarte. Plaintiff and defendant were former law partners. Plaintiff alleged that defendant and his law firm had locked plaintiff out of the firm to retaliate for plaintiff having engaged in activity protected under the Law Against Discrimination and the Conscientious Employee Protection Act. Plaintiff claimed that defendants then improperly tried to prevent clients from leaving defendant for plaintiff’s new law firm. Defendants countered that plaintiff had improperly pressured defendants’ clients to move to plaintiff’s new firm.

The partnership agreement between plaintiff and defendants contained an arbitration clause. During a court appearance, defendants’ counsel stated that arbitration had been waived and was no longer an issue. Two months later, new defense counsel filed a motion to compel arbitration. The Law Division denied that motion. Defendants then appealed as of right.

A key issue in the case is whether and to what extent the factors of Cole v. Jersey City Med. Ctr., 215 N.J. 265 (2023), a case involving an implied waiver of arbitration by a party’s litigation conduct, applies to an express waiver of arbitration. The case may be of particular interest to those in the legal community, as well-known law firms were involved in some of the underlying events.

The briefs on this appeal are available here. The livestreamed oral argument can be viewed here.

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