[plaintiff's] purchase of any goods or services from [defendant];

any previous purchase of goods or services from [defendant];

all the documents relating to this or any previous purchase of goods or services from [defendant];

any service contract or other after market products purchased in connection with this or any previous purchase;

whether the claim or dispute must be arbitrated;

the validity of this arbitration agreement;

any negotiations between [plaintiff] and [defendant];

any claim or dispute based on an allegation of fraud or misrepresentation, including fraud in the inducement of this or any other agreement;

any claim or dispute based on a federal or state statute including, but not limited to the [Consumer Fraud Act] . . . and the Federal Truth in Lending Act;

any claim or dispute based on an alleged tort; and

any claim or dispute based on breach of contract.

The SAD further stated that it applied to:

[A]ny claim or dispute, including all the kinds of disputes listed above, between you and any of our employees or agents, any of our affiliate corporations, and any of their employees or agents and any third parties related to this transaction.

[Emphasis added.]

Under yet another section, entitled "OTHER IMPORTANT AGREEMENTS," the SAD provided:

1. This [SAD] does not affect the applicability of any statute of limitations.

2. The Federal Arbitration Act applies to and governs this agreement.

. . . .

5. If any term of this agreement is unenforceable, the remaining terms of this agreement are severable and enforceable to the fullest extent permitted by law.

6. This agreement supersedes any prior arbitration agreement that there may be between you and us.

7. This agreement is fully binding in the event a class action is filed in which you would be a class representative or member. You and we agree that arbitrations pursuant to this agreement which involve you and us and/or us and any other person cannot be consolidated unless we consent to a consolidation. You and we further agree that there shall be no class action arbitration pursuant to this agreement.

. . . .

9. If you have signed a[n RIC] in connection with this transaction which contains a different arbitration agreement, then this [SAD] shall supersede that arbitration agreement and this [SAD] shall control any claims or disputes between you and us.

10. The arbitrator shall render his/her decision only in conformance with New Jersey law and evidence rules. If the arbitrator fails to render a decision in conformance with New Jersey law or evidence, then the award may be reversed by a court of competent jurisdiction for mere errors of New Jersey law. A mere error is the failure to follow New Jersey law.

11. Customer agrees that Customer will bring any claims Customer may have against Dealer, including claims under the [Consumer Fraud Act], within 180 days from the date of this agreement and if not brought within 180 days all claims will be time barred.

[Emphasis added.]

Immediately above the signature line of the SAD, in bold and capitalized print, it cautioned: "READ THIS ARBITRATION AGREEMENT CAREFULLY. IT LIMITS CERTAIN OF YOUR RIGHTS, INCLUDING YOUR RIGHT TO MAINTAIN A COURT ACTION."

The Consumer Notice

Plaintiff also signed a consumer notice, which provided, in capital letters, that:

CHERRY HILL TRIPLEX DOES NOT MAKE ANY ORAL AGREEMENTS. ALL AGREEMENTS WHICH YOU HAVE MADE ARE CONTAINED IN THE WRITTEN CONTRACT DOCUMENTS THAT YOU ARE BEING ASKED TO SIGN. IF YOU HAVE MADE AN AGREEMENT THAT IS NOT CONTAINED OR SPECIFIED IN THE WRITTEN DOCUMENTS — DO NOT SIGN THE DOCUMENTS!

BY SIGNING BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE CONTRACT DOCUMENTS PRIOR TO SIGNING THEM AND THAT THE CONTRACT DOCUMENTS WHICH YOU HAVE SIGNED CONTAIN ALL OF THE TERMS OF THE AGREEMENT BETWEEN YOU AND CHERRY HILL TRIPLEX. YOU FURTHER ACKNOWLEDGE THAT THERE WERE NO ORAL AGREEMENTS!

I ACKNOWLEDGE BY SIGNING BELOW THAT I HAVE READ ALL OF THE DOCUMENTS I HAVE SIGNED PRIOR TO SIGNING THEM AND THAT ALL OF THE TERMS OF THE AGREEMENT BETWEEN MYSELF AND CHERRY HILL TRIPLEX ARE ACCURATELY REFLECTED IN THOSE DOCUMENTS. I ALSO ACKNOWLEDGE THAT I UNDERSTOOD ALL DOCUMENTS I SIGNED AND THAT I HAVE RECEIVED A COPY OF ALL DOCUMENTS WHICH I HAVE SIGNED.

[Emphasis added.]

The MVROA

The MVROA did not specifically discuss arbitration, but it provided the following:

EXECUTION OF OTHER DOCUMENTS. The Customer, before or at the time of delivery of the motor vehicle covered by this Order will execute such other forms of agreement or documents as may be required by the terms and conditions of payment in accordance with Customer's election to purchase . . . the vehicle covered by this Order.

[Emphasis added.]

In small print above the signature line, the MVROA also stated that:

Customer agrees that this Order on the face and on the reverse side and any attachments to it includes all the terms and conditions, if a cash sale. Customer further agrees this Order cancels and supersedes any prior [MVROA] and as of the date signed by Dealer or authorized agent, comprises the complete and exclusive statement of the terms of the agreement between Customer and Dealer unless the purchase is a credit sale or lease.

[Emphasis added.]

The MVROA did not define what constituted a "credit sale."

The Waiver Document

Plaintiff also signed a separate waiver document, which largely addressed topics unrelated to the issues on appeal, such as the buyer's liability for lease termination charges. We do note that this document attemped to insulate the dealership from liability for failing to honor promises that it may have made in its advertising. In particular, the waiver document recited that the purchaser shall:

[R]elinquish and waive any claims to any financial benefit represented in any and all of CHERRY HILL TRIPLEX promotions or advertisements in consideration for the personal and individual negotiations and agreements reached as part of my purchase . . . .

The Spot Delivery Agreement

Finally, plaintiff signed a so-called "spot delivery" agreement, which permitted her to take possession of the vehicle "prior to financing being finalized." The document contained several provisions discussing her obligations in the event that financing was not approved.

Post-Sale Events

After signing these various documents, plaintiff took possession of her new Sportage and drove it home. The dealership, in turn, took possession of the trade-in Cavalier.

When plaintiff returned home, she realized that defendant had charged her $25,999 for the Sportage instead of the advertised MRSP of $19,575, a difference of $6,424. According to figures set forth in the RIC and the MVROA, defendant had subtracted plaintiff's $500 down payment, her $5,000 trade-in credit, and the $1,000 rebate, from a sale price of $25,999, rather than subtracting those sums from the advertised MSRP of $19,575. Defendant also charged plaintiff, purportedly unbeknownst to her, an additional $600 for gap insurance, an additional $1,500 for a service contract, and an additional $65.80 for vehicle registration fees. Taking into account applicable sales taxes, these combined charges raised the total amount financed to $23,430.73. However, the RIC did reflect a monthly payment figure of $398.47, the same anticipated monthly charge that the salesperson had allegedly represented to plaintiff.

Plaintiff complained to the dealership about these various charges, but the parties were unable to resolve their dispute. Plaintiff alleges that she demanded that the dealership rescind the transaction, but it declined to do so, telling her that it no longer had the Cavalier that she had traded in.

The Litigation

In November 2007, plaintiff and the NAACP of Camden County East (collectively, "plaintiffs") filed a complaint against the dealership in the Law Division.6 In April 2008, plaintiffs filed an amended complaint.

In their pleadings, plaintiffs alleged that defendant's sales practices violated several New Jersey statutes, including the Consumer Fraud Act ("CFA"), N.J.S.A. 56:8-1 to -18; the Plain Language Act ("PLA"), N.J.S.A. 56:12-1 to -13; the Truth-in-Consumer Contract, Warranty and Notice Act ("TCCWNA"), N.J.S.A. 56:12-14 to -18; and the Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49. Among other things, plaintiffs claimed that the dealership "routinely engages in the practice of 'boosting' customers' contracts by the value of their trade-ins or rebates they receive and 'packing' customers['] contracts with unnecessary and unconscionably priced service contracts and gap policies." The amended complaint sought to bring these claims as a class action, designating three sub-classes, including "[a]ll African-Americans who have purchased or leased a vehicle from [defendant]."7

Defendant acknowledged that it sold plaintiff a new car on the terms stated in the contract documents, but denied that it acted deceptively or violated any laws.

Defendant's Motion to Dismiss

Defendant filed a pre-answer motion to dismiss the amended complaint. Among other things, the dealership argued that the NAACP lacked standing and that the arbitration provisions within the contract documents barred plaintiff from litigating her claims in the Superior Court.

After the trial court heard oral argument, it first concluded that the NAACP did not have standing as a co-plaintiff in this matter. Consequently, on October 7, 2008, the court issued an order dismissing the amended complaint as to the NAACP, with prejudice.

At the same time, the trial court preliminarily detected a material dispute as to whether, given the projected monetary value of plaintiff's case, the class action waiver provisions in the contract documents would have an untenable chilling effect on the enforcement of consumer claims. If such a chilling effect were proven, the trial court perceived that the class action waiver might be invalidated on public policy grounds, as the New Jersey Supreme Court had found in Muhammad v. County Bank of Rehoboth Beach, 189 N.J. 1, 20-22 (2006), cert. denied, ­­­ 549 U.S. 1338, 127 S. Ct. 2032, 167 L. Ed.2d 763 (2007). Accordingly, the trial court provisionally denied defendant's motion to dismiss plaintiff's amended complaint. Relying on Muhammad, the court ordered a plenary hearing to assess whether plaintiff would be able to find a competent attorney to represent her in an arbitration on an individualized basis. Defendant filed a motion for reconsideration, which the original motion judge denied.8

Plaintiff's Motion for Partial Summary Judgment

In November 2008, plaintiff filed a motion for partial summary judgment, arguing that the arbitration provisions in the contract documents were unenforceable as a matter of law, and that she was entitled to proceed with her claims in the Superior Court. As part of her contentions, plaintiff urged the court to consider the dealership's alleged history of deceptive sales practices, which, according to plaintiff, had resulted in investigations of defendant by the New Jersey Attorney General in 2001 and 2009.

To this end, plaintiff submitted an expert report from an auto industry consultant, David A. Stivers. In his report, Stivers described the kinds of deceptive sales practices that he contended are typically used by dishonest car dealers. Among other things, Stivers stated:

Based on my experience in investigating fraud in the automobile sales industry, it is common for dishonest dealers to use multi-form documents to enable the dealer to have customers sign documents unfavorable to the consumer without their knowledge or awareness. This permits the dealer to camouflage provisions which are unfavorable to the consumer.

[Emphasis added.]

Stivers continued:

It would have been rather simple and easy for this dealer [defendant] to use a single document which contains a table of contents or alphabetical index that contains all the terms of the contract, including an arbitration clause, which would have highlighted in conformance with the [PLA] the many exceptions to the main promise of this contract. The main terms are the price, monthly payment, interest-rate and term. The contradictory language in the . . . arbitration clauses could have been easily eliminated.

[Emphasis added.]

Defendant responded with a cross-motion to dismiss plaintiff's amended complaint and to compel arbitration.

After hearing oral argument on the parties' competing motions, the judge issued a bench ruling on March 9, 2009. The ruling denied plaintiff's motion for partial summary judgment and, subject to a Muhammad hearing, granted defendant's cross-motion.

The judge held that the arbitration provisions, subject to certain excisions, were presumptively enforceable. The judge found that plaintiff's allegations as to defendant's past misconduct were irrelevant to the determination of enforceability. However, the judge did find invalid, and accordingly severed, certain provisions in the contract documents. In particular, the judge nullified provisions that shortened the applicable statute of limitations and which made plaintiff potentially liable for the dealership's defense costs in arbitration. The judge reiterated the first judge's finding that a Muhammad hearing was needed to assess whether the class waiver would have an undue chilling effect on the enforcement of consumer claims against the dealership.

Consistent with these rulings, the trial court entered an order on April 23, 2009, denying plaintiff's motion for partial summary judgment, but retaining jurisdiction to conduct a Muhammad hearing on the enforceability of the class action waiver. Subject to the results of that hearing, the matter would be referred to binding arbitration.

The Muhammad Hearing

The court conducted a plenary hearing pursuant to Muhammad on July 24, 2009. Plaintiff and defendant each presented several witnesses. These witnesses addressed the viability of litigating plaintiff's claims against the dealership on an individualized basis, based on her projected damages of $8,500 (untrebled) for her CFA claim and the fees that she would have to pay to her counsel out of a recovery.

Plaintiff presented expert testimony from Gregory Shivers, Stephen DeNittis, and Michael Halbfish, all of whom are practicing attorneys with experience in litigating consumer fraud claims. According to each of these attorney experts, plaintiff would have difficulty finding a lawyer to represent her in an arbitration against the dealership on an individualized basis. The experts cited various reasons for their shared pessimism, including such factors as the complexity of the dealership's contract documents and the restrictions typically imposed upon discovery in arbitration.

Defendant presented testimony from two experts at the Muhammad hearing, Mitchell Berman and Perry Pittenger, both of whom are attorneys with experience in defending car dealerships from consumer claims. Both of those experts recalled personally being involved in past cases where the damages sought by the consumer were less than $8,500.

Defendant also presented testimony from William Kopp, the general manager of the Cherry Hill Triplex since January 2001. Kopp was responsible for overseeing the dealership's daily operations and addressing consumer complaints that result in litigation. Kopp testified that he had been personally involved in fifteen to twenty consumer complaints since 2001, and that he had been involved in several arbitrations with dissatisfied customers, who were represented by counsel, where the damages claimed were less than $8,500.

Additionally, defendant submitted a certification from Carl Poplar,9 a litigator who has handled numerous CFA cases. Poplar stated that he personally "would take a case [as plaintiff's counsel] where the actual damages were less than $8500.00 in either arbitration or court if the statute provided [for] attorney's fees and I felt that the case had potential, which the instant case does." Poplar added that if other attorneys "believe the case has merit [they] will not hesitate to take a case with less than $8500 in actual damages because statutes like [the CFA] provide for attorney's fees even if there is just One Dollar ($1.00) in damages."

Assessing these proofs from the Muhammad hearing, the trial court ruled that the class action waiver provisions did not violate public policy and were thus enforceable. In particular, the court found that it was not likely that attorneys would be unwilling to represent consumers such as plaintiff in an arbitration on claims against a dealership, given the potential for fee-shifting if such claims were successful. Hence, the court ruled that plaintiff was barred from pursuing her claims in a class action lawsuit or, by implication, a class-based arbitration.

The court memorialized its decision in a final order dated September 28, 2009. Accordingly, the lawsuit was dismissed and the matter was referred to arbitration.10

The Appeal

This appeal ensued. Although they raise several points, plaintiffs fundamentally assert that the trial court erred in enforcing the binding arbitration provisions in the form documents. Plaintiffs also raise several subsidiary arguments, including: (1) the NAACP should not have been dismissed as a co-plaintiff for lack of standing; (2) the trial court erred in not taking into account the dealership's alleged prior misconduct; (3) the court should not have denied partial summary judgment to plaintiff on the PLA and TCCWNA claims; (4) the court erred in finding the LAD claim arbitrable; and (5) the court should have granted class certification.

Following oral argument before this court, the United States Supreme Court issued its decision in AT&T Mobility, supra. We invited, and have considered, supplemental letter briefs from the parties addressing the impact of AT&T Mobility on this case, particularly as to the class action waiver issues.

II.

Section 2 of the Federal Arbitration Act ("FAA"), 9 U.S.C. § 2, which applies to the contract documents in this case, reflects both "a liberal federal policy favoring arbitration," Moses H. Cone Memorial Hospital v. Mercury Construction Corporation, 460 U.S. 1, 24, 103 S. Ct. 927, 941, 74 L. Ed.2d 765, 785 (1983), and "the fundamental principle that arbitration is a matter of contract." Rent-A-Center, W., Inc. v. Jackson, 561 U.S. ___, ___, 130 S. Ct. 2772, 2776, 177 L. Ed.2d 403, 410 (2010). The United States Supreme Court recently reaffirmed those key principles in AT&T Mobility, supra, 563 U.S. at ___, 131 S. Ct. at 1745, 179 L. Ed. 2d at 751 (quoting these passages from Moses H. Cone and Rent-A-Center).

Our state law has similarly recognized these basic tenets. In many contexts, arbitration may be advantageous over traditional litigation in the courts because it can be faster, cheaper, and less formal. See, e.g., Fawzy v. Fawzy, 199 N.J. 456, 472 (2009); Marchak v. Claridge Commons, Inc., 134 N.J. 275, 281 (1993). As we reiterated earlier this year in Frumer v. National Home Insurance Company, 420 N.J. Super. 7, 13 (App. Div. 2011), "'New Jersey law comports with its federal counterpart in striving to enforce arbitration agreements.'" (quoting Jansen v. Salomon Smith Barney, Inc., 342 N.J. Super. 254, 257 (App. Div.), certif. denied, 170 N.J. 205 (2001)). "'An agreement relating to arbitration should thus be read liberally to find arbitrability if reasonably possible.'" Ibid.; see also N.J.S.A. 2A:23B-1 to -32 ("New Jersey Arbitration Act") (providing in N.J.S.A. 2A:23B-6 that an agreement to arbitrate is "valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract").

That said, an agreement to arbitrate must be the product of mutual assent, as determined under customary principles of contract law. See N.J.S.A. 2A:23B-6; Muhammad, supra, 189 N.J. at 15. There must be, as our cases instruct, a "meeting of the minds." See, e.g., Pinto v. Spectrum Chems. & Lab. Prods., 200 N.J. 580, 600 (2010) (upholding the trial court's ruling that a settlement agreement was unenforceable "because the parties never had a meeting of the minds on the precise terms of the agreement"); Morton v. 4 Orchard Land Trust, 180 N.J. 118, 120 (2004) (declining to enforce a sale agreement where the contract was missing the "essential element" of "a meeting of the minds on the terms of the agreement"). Consequently, the clarity and internal consistency of a contract's arbitration provisions are important factors in determining whether a party reasonably understood those provisions and agreed to be bound by them.

By its very nature, an agreement to arbitrate involves a waiver of a party's right to have her claims and defenses litigated in court. "Generally, we determine a written agreement's validity by considering the intentions of the parties as reflected in the four corners of the written instrument." Leodori v. CIGNA Corp., 175 N.J. 293, 302, cert. denied, 540 U.S. 938, 124 S. Ct. 74, 157 L. Ed.2d 250 (2003). Thus, such a waiver contained in a written provision "must reflect that [a party] has agreed clearly and unambiguously to arbitrate the disputed claim." Ibid.

Moreover, because arbitration provisions are often embedded in contracts of adhesion, courts take particular care in assuring the knowing assent of both parties to arbitrate, and a clear mutual understanding of the ramifications of that assent. See, e.g., Fawzy, supra, 199 N.J. at 469-70; Marchak, supra, 134 N.J. at 282. "This requirement of a 'consensual understanding' about the rights of access to the courts that are waived in the agreement has led our courts to hold that clarity is required." Moore v. Woman to Woman Obstetrics & Gynecology, L.L.C., 416 N.J. Super. 30, 37 (App. Div. 2010) (quoting Fawzy, supra, 199 N.J. at 469-70).

Earlier this year, the United States Supreme Court in AT&T Mobility confirmed the applicability of these basic principles of contract formation to arbitration provisions. The Court was presented in that case with arbitration provisions set forth in form contracts between a cellular telephone company and consumers who had purchased cell phones from that company. The contract terms provided for mandatory arbitration of all disputes between the parties. AT&T Mobility, supra, 563 U.S. at ___, 131 S. Ct. at 1744, 179 L. Ed. 2d at 749. In addition, the contract "required that claims be brought in the parties' 'individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.'" Ibid. (citation to the record omitted). That provision further specified that "'the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.'" Id. at ____ n.2, 131 S. Ct. at 1744 n.2, 179 L. Ed. 2d at 749 n.2 (citation to the record omitted).

After a dispute arose over the cellular contracts, the consumers filed a class action against the company in the federal district court. The company then moved to compel arbitration under the contract, which the consumers opposed. The company further argued that the consumers had waived their right to proceed on a class-wide basis, either in court or in arbitration. The United States Court of Appeals for the Ninth Circuit declared the class waiver provision unenforceable on public policy grounds, applying principles of California state contract law. Id. at ___, 131 S. Ct. at 1745, 179 L. Ed. 2d at 750.

The Supreme Court reversed the Ninth Circuit's ruling in AT&T Mobility, holding that the FAA preempted the state's ability to nullify a class action waiver provision in an arbitration agreement on public policy grounds. Id. at ___, 131 S. Ct. at 1746-53, 179 L. Ed. 2d at 752-59. The majority of the justices rejected the consumers' argument that because the monetary stakes that could arise in disputes under the contract were small, state law could invalidate the class action waiver as unconscionable. Id. at ___, 131 S. Ct. at 1753, 179 L. Ed. 2d at 758. The majority instead held that the national policies favoring arbitration, as expressed in the FAA, precluded states from requiring "a [formal judicial] procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons." Ibid.

The majority in AT&T Mobility specifically found that several aspects of class-based dispute resolution, such as greater formality, slower and more costly processes, and increased risks to defendants if the outcome is unfavorable to them, were incompatible with the basic characteristics of arbitration. Id. at ___, 131 S. Ct. at 1751-53, 179 L. Ed. 2d at 756-59. Consequently, the Court held that California law could not invalidate the class action waiver in the cell phone contracts on public policy or unconscionability grounds. Ibid.11

Nevertheless, the Court in AT&T Mobility acknowledged that the FAA does not require an arbitration provision to be enforced if the provision is defective for reasons other than public policy or unconscionability. Other contract principles under state law, such as those governing the formation and interpretation of an agreement, may still pertain, subject to the overarching objectives of the FAA. As the majority noted in footnote six:

Of course States remain free to take steps addressing the concerns that attend contracts of adhesion  for example, requiring class-action-waiver provisions in adhesive arbitration agreements to be highlighted. Such steps cannot, however, conflict with the FAA or frustrate its purpose to ensure that private arbitration agreements are enforced according to their terms.

[Id. at ___ n.6, 131 S. Ct. at 1750 n.6, 179 L. Ed. 2d at 756 n.6 (emphasis added).]

This caveat was developed more explicitly in Justice Thomas's concurring opinion, which represented the pivotal fifth vote in the Court's five-to-four decision in AT&T Mobility. As Justice Thomas noted, "the FAA requires that an agreement to arbitrate be enforced unless a party successfully challenges the formation of the arbitration agreement, such as by proving fraud or duress." Id. at ___, 131 S. Ct. at 1753, 179 L. Ed. 2d at 759 (Thomas, J., concurring) (emphasis added) (citation omitted). On the other hand, "[c]ontract defenses unrelated to the making of the agreement  such as public policy  could not be the basis for declining to enforce an arbitration clause." Id. at ___, 131 S. Ct. at 1755, 179 L. Ed. 2d at 761 (Thomas, J., concurring) (emphasis added). Justice Thomas further observed that "[c]ontract formation is based on the consent of the parties, and we have emphasized that '[a]rbitration under the [FAA] is a matter of consent.'" Id. at ___ n.*, 131 S. Ct. at 1755 n.*, 179 L. Ed. 2d at 761 n.* (Thomas, J., concurring) (emphasis added) (quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 479, 109 S. Ct. 1248, 1256, 103 L. Ed.2d 488, 500 (1989)).

Thus, in the aftermath of AT&T Mobility, 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. Applying such core principles of contract law here, we must decide whether there was mutual assent to the arbitration provisions in the dealership's contract documents. As part of that assessment, we must examine whether the terms of the provisions were stated with sufficient clarity and consistency to be reasonably understood by the consumer who is being charged with waiving her right to litigate a dispute in court.

We previously applied such fundamental requirements of clarity and consistency to the form contracts used by a car dealership, one affiliated with defendant in the present appeal, in Rockel v. Cherry Hill Dodge, 368 N.J. Super. 577 (App. Div.), certif. denied, 181 N.J. 545 (2004). Similar to the circumstances here, Rockel involved conflicting arbitration provisions set forth in multiple contract documents, namely, an RIC and an MVROA. Id. at 581. Although the RIC in this matter is apparently the same as or similar to the one used in Rockel, there was no separate arbitration agreement in Rockel. Id. at 581-82. Instead, the MVROA in Rockel incorporated a clause that provided:

ARBITRATION: The terms of this Agreement are hereby incorporated herein and made a part of this Agreement. Dealer and you, the purchaser, agree that any controversy or claim arising out of or relating to this Agreement shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the "AAA").

[Id. at 581.]

Comparing the arbitration provisions in the two documents, the panel in Rockel found that the RIC's arbitration clause was broader than the MVROA's. That was so because the RIC "purport[ed] to render arbitrable the scope and meaning of the arbitration agreement, attempt[ed] to extend the arbitration agreement to persons not parties to the agreement, and declare[d] that the right to elect arbitration may be exercised even by non-parties." Id. at 582-83.

We concluded in Rockel that the arbitration provisions there were unenforceable, largely relying upon basic tenets of contract formation and interpretation. Ibid. Among other things, we highlighted the "uncertain content of the parties' agreement to arbitrate"; the "contracts' conflicting descriptions of the manner and procedure which would govern the arbitration proceedings"; the "absence of a definitive waiver of plaintiff's statutory claims"; and the "obscure appearance and location of the arbitration provisions" within the agreements. Id. at 580. Viewed in combination, these flaws "militate[d] against the entry of an order requiring arbitration[.]" Ibid.

In reaching our conclusion in Rockel, we compared the arbitration provisions in that case to other cases involving the arbitration of statutory claims. Id. at 580-81. In particular, we considered Gras v. Associates First Capital Corporation, 346 N.J. Super. 42 (App. Div. 2001), certif. denied, 171 N.J. 445 (2002), a case in which we upheld arbitration provisions contained within a series of bank loan documents and rejected the plaintiffs' argument that the arbitration provisions in the loan documents were too obscure or unclear to enforce. Id. at 46-47, 57. We specifically distinguished the contract provisions in Gras from the defective provisions in the dealership's agreements in Rockel:

In Gras, we held that an arbitration provision was "specific enough to inform plaintiffs that they were waiving their statutory rights to litigation in a court," and concluded that the policy in favor of the arbitration of disputes sufficiently outweighed the plaintiffs' statutory right to present their claims to a jury in a court of law. Here, the arbitration agreement is highly ambiguous because the parties executed two documents which contain separate and somewhat disparate arbitration clauses. This ambiguity, we conclude, is fatal to the compelling of the arbitration of plaintiffs' CFA claims.

[Rockel, supra, 368 N.J. Super. at 581 (emphasis added) (citation omitted).]

Following Rockel, the dealership apparently revised the arbitration provisions within its form contracts, leading to the provisions that are at issue in the present litigation.

A.

We now proceed to apply these basic principles of contract formation to the multiple arbitration provisions in this case. As we have noted, the provisions are spread across three different documents, namely, the RIC, the SAD, and the Addendum. The trial court concluded that these provisions, read as a whole, were sufficiently clear and could be sufficiently harmonized to reflect mutual assent and thus were enforceable. We review the trial court's legal assessment de novo, and we do not accord any special deference to the court's conclusions. The "interpretation of an arbitration clause is a matter of contractual construction that this court should address de novo." Coast Auto. Grp., Ltd. v. Withum Smith & Brown, 413 N.J. Super. 363, 369 (App. Div. 2010); see also EPIX Holdings Corp. v. Marsh & McLennan Cos., 410 N.J. Super. 453, 472 (App. Div. 2009) (noting that "[o]ur standard of review of the applicability and scope of an arbitration agreement is plenary"). We further note that such de novo review is especially appropriate in evaluating a trial court's ruling on summary judgment. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Viewed in their totality, the arbitration provisions scattered among the RIC, the Addendum, and the SAD are too plagued with confusing terms and inconsistencies to put a reasonable consumer on fair notice of their intended meaning. We recognize that an especially prudent purchaser who takes the time to read these documents, which are laden with fine print, would likely obtain a generalized sense that a post-sale dispute would be handled through some kind of arbitration. Even so, the assorted documents do not plainly convey  with precision and consistency  what the exact terms and conditions of that arbitration process would be. Consequently, the form documents in this case suffer from the same, if not the identical, kinds of deficiencies that infected the arbitration provisions in Rockel.

To begin with, the documents do not clearly and consistently express the nature and locale of the arbitration forum itself. The RIC allows the arbitration to be conducted under either the rules of the American Arbitration Association ("AAA") or the National Arbitration Forum ("NAF"), whereas the SAD and the Addendum restrict the arbitration to only AAA rules. The RIC further states that "[w]hichever rules are chosen, the arbitrator shall be an attorney or retired judge," but the SAD and the Addendum provide that the arbitrator is to be selected in accordance with AAA commercial arbitration rules, which do not require arbitrators to be attorneys.12 Moreover, the venue of the arbitration under the RIC is the "federal district" in which the purchaser resides, while the Addendum more narrowly states that the venue will be the customer's "county of residence," and the SAD more broadly states that the arbitration "will take place in the State of New Jersey" unless the parties agree on a different location.