Full Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2387-25 SHAREEN VAVERCHAK a/k/a ARAMINTA BUSINESS SOLUTIONS LLC and SHAMLA MANI a/k/a SM MARKETING, Plaintiffs-Respondents, v. SHIFT4 PAYMENTS, INC., f/k/a HARBORTOUCH, f/k/a UNITED BANK CARD INC., TAYLOR LAUBER, and MICHAEL ISAACMAN, Defendants-Appellants. ___________________________ Submitted October 15, 2026 – Decided November 5, 2026 Before Judges Mawla and Augostini. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1596-25. Chiesa Shahinian & Giantomasi PC, attorneys for appellants (Mauro G. Tucci Jr., Sarah Heba-Escobar, and Kelly Kortes, on the briefs). DiFazio Law Office, attorneys for respondents (Salvatore P. DiFazio and Angela DiFazio, on the brief). PER CURIAM Defendants Shift4 Payments, Inc., Taylor Lauber, and Michael Isaacman appeal from a February 27, 2026 order granting reconsideration of a January 21, 2026 order compelling arbitration and dismissing plaintiffs Shareen Vaverchak a/k/a Araminta Business Solutions LLC's and Shamla Mani a/k/a SM Marketing's complaint. For the reasons set forth in this opinion, we vacate and remand with direction to enter a new order compelling arbitration and staying the action until arbitration is completed. I. Vaverchak owns Araminta Business Solutions LLC, a single-member entity, and Mani, a sole proprietor, owns SM Marketing. They operate as independent sales organizations (ISO). Shift4 is a publicly traded corporation that provides payment processing services for retail businesses. Lauber is Shift4's Chief Operating Officer, and Isaacman is its Chief Commercial Officer. Shift4 contracts with companies to market its software and credit card processing services to merchants nationwide. A-2387-25 2 In 2015, plaintiffs entered into ISO contracts with Shift4 to market their products. They received monthly compensation in the form of revenue sharing referred to as "residual payments," initial bonuses when new accounts signed up, and secondary bonuses based on the volume of merchant processing. Both ISO agreements contained the same arbitration provision; Section 10.13, entitled "Dispute Resolution," which provides: Any dispute or claim arising out of, or in connection with this Agreement will be settled by final and binding arbitration to be held in Lehigh County, PA in accordance [with] the commercial rules of the American Arbitration Association ("AAA"). Judgment upon award rendered by the arbitrators may be entered in [any] court having jurisdiction over: the award, the party against whom enforcement is sought, or that party's assets. The procedures and law applicable during the arbitrations will be both the AAA rules and the internal substantive laws of New Jersey (excluding any rules regarding conflicts of law). In such arbitration, the award will be rendered by an arbitrator who is not an employee, agent, or former employee or agent of any party. In the event that any party fails to appoint an arbitrator within [thirty] days after submission of the [dispute] to arbitration, such arbitrator will be appointed by the AAA. On June 22, 2025, plaintiffs alleged they did not receive their regularly scheduled residual payments. In response, Shift4 contended plaintiffs had been overpaid. Plaintiffs alleged their access to customer accounts and online portals A-2387-25 3 were terminated, ending their ISOs without prior written notification, while their male counterparts were offered repayment plans for the overpayments. On November 4, 2025, plaintiffs filed their complaint, asserting a violation of the New Jersey Law Against Discrimination (LAD); unjust enrichment; breach of contract; and breach of the covenant of good faith and fair dealing. Defendants moved to dismiss the complaint and compel arbitration. On January 21, 2026, the court granted defendants' motion, compelling arbitration and dismissing plaintiffs' complaint without prejudice. Plaintiffs moved for reconsideration. On February 27, 2026, the court reconsidered the January 21 order, vacated it, and restored the matter to the trial calendar. The court explained upon a "closer review of the arbitration clauses evaluated in Garfinkel,[1] Atalese,[2] and their progeny, the court finds that the language in the arbitration clause did not clearly and unambiguously reflect to [p]laintiffs that they were waiving their right to have their claims adjudicated by a court with competent jurisdiction." 1 Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 168 N.J. 124 (2001). 2 Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430 (2014). A-2387-25 4 II. We review a trial court's reconsideration decision for abuse of discretion. R. 4:49-2; Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021). "[A] trial court's reconsideration decision will be left undisturbed unless it represents a clear abuse of discretion." Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015) (citing Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994)). Reconsideration is appropriate when a prior decision is "based on plainly incorrect reasoning or failure to consider evidence or a good reason for the court to reconsider new information." Pressler & Verniero, Current N.J. Court Rules, cmt. 2 on R. 4:49-2 (2022) (citing Kornbleuth v. Westover, 241 N.J. 289, 301-02 (2020)). However, we review the enforceability of arbitration agreements de novo. Skuse v. Pfizer, Inc., 244 N.J. 30, 46 (2020). "Similarly, the issue of whether parties have agreed to arbitrate is a question of law that is reviewed de novo." Jaworski v. Ernst & Young U.S. LLP, 441 N.J. Super. 464, 472 (App. Div. 2015). "The Federal Arbitration Act (FAA), 9 U.S.C.A. §§ 1-16, and the nearly identical New Jersey Arbitration Act [(NJAA)], N.J.S.A. 2A:23B-1 to -32, enunciate federal and state policies favoring arbitration." Atalese, 219 N.J. at A-2387-25 5 440 (citing AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011)). "[C]ourts [] 'place arbitration agreements on an equal footing with other contracts and enforce them according to their terms.'" Id. at 441 (quoting Concepcion, 563 U.S. at 339). Thus, arbitration agreements are subject to customary contract law principles. Id. at 442. A valid and enforceable agreement requires (1) consideration; (2) a meeting of the minds based on a common understanding of the contract terms; and (3) unambiguous assent. See id. at 442-45. "[C]ontract terms should be given their plain and ordinary meaning." Kernahan v. Home Warranty Adm'r of Fla., Inc., 236 N.J. 301, 321 (2019) (citing Roach v. BM Motoring, LLC, 228 N.J. 163, 174 (2017)). When interpreting a contract, "[a] court's objective . . . is to determine the intent of the parties." Id. at 320 (citing Kieffer v. Best Buy, 205 N.J. 213, 223 (2011)). When the language of the contract is "clear and unambiguous, a court must enforce the agreement as written, unless doing so would lead to an absurd result." Barila v. Bd. of Educ. of Cliffside Park, 241 N.J. 595, 616 (2020) (quoting Quinn v. Quinn, 22 5 N.J. 34, 45 (2016)). A-2387-25 6 III. On appeal, defendants contend the court erred in vacating the January 21 order because it had correctly enforced the parties' clear and unambiguous agreement to resolve disputes arising from their ISO agreement through arbitration. The court also erred by addressing the issue of the arbitration provision's enforceability because plaintiffs did not challenge the delegation clause as required under Goffe v. Foulke Management Corporation, 238 N.J. 191, 211 (2019). A. "[P]arties to an [arbitration] agreement may waive statutory remedies in favor of arbitration." Garfinkel, 168 N.J. at 131. That waiver, however, "must be clearly and unmistakably established, and contractual language alleged to constitute a waiver will not be read expansively." Id. at 132 (quoting Red Bank Reg'l Educ. Ass'n v. Red Bank Reg'l High Sch. Bd. of Educ., 78 N.J. 122, 140 (1978)). When evaluating an arbitration provision, a court undertakes a two- step analysis by: (1) determining whether the parties have entered into a valid and enforceable agreement to arbitrate disputes; and (2) determining whether the dispute falls within the scope of the agreement. Martindale v. Sandvik, Inc., 173 N.J. 76, 92 (2002). A-2387-25 7 Goffe is factually distinguishable from the present matter. In Goffe, the consumer plaintiffs asserted the commercial defendants fraudulently induced them to sign sales agreements. Id. at 194. Unlike plaintiffs in this case, the Goffe plaintiffs did not dispute the validity of the arbitration agreement or the delegation provision, but instead "continuously maintained that the contract was the product of fraudulent inducement and that the arbitration agreement—within that sales contract—[was] thus also invalid." Id. at 212. Analyzing federal and New Jersey precedent, the Goffe Court acknowledged "when a plaintiff raises a claim of fraud in the inducement of a contract as a whole—rather than fraud in the making of the arbitration agreement itself—the FAA requires that the dispute be resolved by the arbitrator." Id. at 208-09 (citing Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04 (1967)). So, "unless the challenge is to the arbitration clause itself, the issue of the contract's validity is considered by the arbitrator in the first instance." Buckeye Check Cashing Inc., v. Cardegna, 546 U.S. 440, 445-46 (2006). "[A] party's challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate." Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 70 (2010). A court may resolve the threshold issue of whether the parties agreed to arbitration A-2387-25 8 unless they specifically delegated that issue to the arbitrator. Morgan v. Sanford Brown Inst., 225 N.J. 289, 295-96 (2016). Thus, because the Goffe plaintiffs challenged the validity of the contracts in their entirety, and not simply the arbitration agreement, they could not avoid arbitration. 238 N.J. at 195-96, 212. The Court concluded "a general challenge to the validity of the agreement as a whole will not suffice to permit arbitration to be avoided." Id. at 195 (citing Rent-A-Center, W., Inc., 561 U.S. at 72). It affirmed the trial court's ruling compelling arbitration as to the plaintiffs' general claims about the validity of their contracts under the delegation clauses of those contracts. Id. at 195-96. Here, in opposition to defendants' motion to compel arbitration, plaintiffs argued the arbitration clause should be severed from the contract because its terms were vague, ambiguous, and unconscionable under New Jersey law. They were not seeking, however, to invalidate the entire ISO agreement. Therefore, the trial court did not err by deciding the enforceability of the arbitration provision and not referring this threshold question to the arbitrator. B. Turning to plaintiffs' specific challenges to the arbitration provision, the court initially found "[n]othing in the [language of the arbitration provision] is A-2387-25 9 ambiguous, unclear or conflicting." The language of the agreement clearly stated "any disputes or claims that arise out of or in connection with the ISO [a]greement are to be settled by final and binding arbitration." On reconsideration, the court reversed course stating it "overlooked the distinction between 'broad' language and 'clear' language in its prior decision." Upon closer review of the Garfinkel and Atalese standard, the court found "the language in the arbitration clause did not clearly and unambiguously reflect to [p]laintiffs that they were waiving their right to have their claims adjudicated by a court with competent jurisdiction." In Atalese, our Supreme Court established heightened standards for proving assent to arbitration in some circumstances. 219 N.J. 430. The Court invalidated an arbitration provision in the context of a twenty-three-page consumer contract of adhesion because it did not: include an explanation the plaintiff was waiving her right to seek relief in court; clearly explain arbitration or how it differs from judicial relief; and explain in plain language understandable to the average consumer they were waiving their right to sue in court. Id. at 446-48. The Court has also applied Atalese to employment contracts. See Flanzman v. Jenny Craig, Inc., 244 N.J. 119, 137-38 (2020). A-2387-25 10 In County of Passaic v. Horizon Healthcare Services, 474 N.J. Super. 498, 503-04 (App. Div. 2023), we explained our understanding of the holding in Atalese: [Atalese's] concern for those not versed in the law or not necessarily aware of the fact that an agreement to arbitrate may preclude the right to sue in a court or invoke the inestimable right of trial by jury . . . vanishes when considering individually-negotiated contracts between sophisticated parties – often represented by counsel at the formation stage – possessing relatively similar bargaining power. Although our Supreme Court has not expressly declared it, and although we too have not said as much in any published opinion, we are satisfied . . . that an express waiver of the right to seek relief in a court of law to the degree required by Atalese is unnecessary when parties to a commercial contract are sophisticated and possess comparatively equal bargaining power. See also In re Remicade (Direct Purchaser) Antitrust Litig., 938 F.3d 515, 525- 26 (3d Cir. 2019) (holding Atalese does not apply where the parties have relatively equal bargaining power and levels of sophistication). The next question is whether the parties' arbitration provision clearly included a waiver of statutory claims such as the LAD claim. The trial court relied on Garfinkel to conclude the arbitration provision did not clearly waive plaintiffs' right to pursue judicial recourse for their statutory claims. Garfinkel, A-2387-25 11 however, is distinguishable because the present case does not involve an employment agreement between an employee and employer. In Garfinkel, the Court addressed an employee's waiver of the right to sue his former employer in the Law Division for alleged violations of the LAD. 168 N.J. at 127. LAD provides "aggrieved employees with a choice of forum to prosecute [discrimination] claims." Id. at 130. The statute grants employees the right to "pursue an administrative remedy by filing a verified complaint with the Division [on Civil Rights], or [by] fil[ing] suit in the Law Division of the Superior Court." Ibid. (citing N.J.S.A. 10:5-13; Hernandez v. Region Nine Hous. Corp., 146 N.J. 645, 652 (1996)). Following Garfinkel, "the Legislature amended LAD to add several sections, including Section 12.7, which states that '[a] provision in any employment contract that waives any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment shall be deemed against public policy and unenforceable.'" Antonucci v. Curvature Newco, Inc., 470 N.J. Super. 553, 563 (App. Div. 2022) (alteration in original) (quoting N.J.S.A. 10:5-12.7(a) (codifying L. 2019, c. 39, § 1(a))). Notwithstanding the amendment we held arbitration agreements governed by the FAA pre-empt the 2019 amendment to New Jersey's LAD that "prohibits the waiver of procedural A-2387-25 12 and substantive rights." Id. at 557. The 2019 LAD amendments, moreover, only apply prospectively. Id. at 564. Arbitration agreements, which broadly extend to "[a]ny dispute or claim," "should be read liberally in favor of arbitration." Garfinkel, 168 N.J. at 132 (quoting Marchak v. Claridge Commons, Inc., 134 N.J. 275, 282 (1993)). "That parties to an agreement may waive statutory remedies in favor of arbitration is a settled principle of law in this State." Id. at 131. "Our Supreme Court has recognized that '[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral[,] rather than a judicial, forum.'" Antonucci, 470 N.J. Super. at 566 (alterations in original) (quoting Martindale, 173 N.J. at 93). We have held the express waiver requirement for consumer contracts does not extend to "parties to a commercial contract [who] are sophisticated and possess comparatively equal bargaining power." Horizon, 474 N.J. Super. at 504. In Horizon, the parties had "maintained a lengthy contractual relationship" of seventeen years and were represented by counsel during the formation of the relevant contracts to the dispute as well as the negotiation stages. Id. at 504-05; see also In re Remicade, 938 F.3d at 525-26 (applying New Jersey law to hold Atalese did not apply to a commercial contract between two "highly A-2387-25 13 sophisticated participant[s] in the pharmaceutical market" (alteration in original)). Pursuant to these principles and having considered the record, we conclude the trial court misapplied its discretion on reconsideration by finding the language in the arbitration clause did not clearly and unambiguously state plaintiffs were waiving their right to have their claims decided in court, and as a result, invalidating the provision. The terms of the parties' ISO agreement clearly stated they agreed to settle "[a]ny dispute or claim arising out of, or in connection with[,] this [a]greement" by final and binding arbitration and "in accordance [with] the . . . rules of the American Arbitration Association." As the trial court initially found, this language is clear and unambiguous, thus the arbitration provision is valid and enforceable. This provision, moreover, is not contained in an employment contract covered by N.J.S.A. 10:5-12.7, which invalidates such waivers as against public policy and unenforceable. The arbitration provision is part of a business contract between professionals with equal bargaining power. The parties have maintained a contractual business relationship for approximately ten years and have been governed by their ISO agreements containing arbitration provisions. There is no dispute as to the validity of the agreement generally, or that the A-2387-25 14 parties did not share an understanding of the agreement's terms and conditions. This record does not show an "unequal relationship" between the parties as found in the one-time consumer or employee contract context—i.e., contracts of adhesion. Here, in its February 27 decision, the trial court did not explain why the heightened standard of Garfinkel and Atalese—applicable to consumer and employee relationships—should also apply to these circumstances. We are satisfied the trial court's January 21 decision was sound, as the language of the arbitration provision was clear, unambiguous, and consistent with existing law. Under the circumstances of this case, the strict Atalese and Garfinkel standards are inapplicable. The lack of an express waiver of plaintiffs' right to pursue their claims in court was not fatal to the arbitration provision because these parties are long-standing business professionals and not one-time consumers or employees standing on unequal footing and faced with a take-it-or-leave-it contract. In sum, we vacate the February 27 order and remand the matter for the entry of a new order compelling arbitration and staying the court action . See 9 U.S.C. § 3; N.J.S.A. 2A:23B-7(g); see also Antonucci, 470 N.J. Super. at 567 (reversing the provision of an order compelling arbitration which dismissed the A-2387-25 15 case with prejudice pending arbitration); Perez v. Sky Zone LLC, 472 N.J. Super. 240, 251 (App. Div. 2022) ("Under the FAA and the NJAA, a court must stay an arbitrable action pending the arbitration."). Vacated and remanded. We do not retain jurisdiction. A-2387-25 16