On July 9, 2025, the New Jersey Supreme Court issued a unanimous opinion in Fazio v. Altice USA,—A.3d.—, 2025 WL 1888095 (N.J. July 9, 2025), which clarified the high “degree of specificity” of evidence required under New Jersey Rule of Evidence 406 to give rise to a rebuttable presumption that a business acted in conformity with its habit or routine practice.

Background

Plaintiff Gerald Fazio Jr. is an individual who purchased cellular service and a cellphone from defendant Altice USA, a cellphone provider.

In 2019, Fazio visited an Altice retail store and purchased cellular service. While he was there, he was not shown any documents containing arbitration provisions. Instead, a salesperson gave him a receipt providing, without reference to arbitration, that “[a] copy of all documents and agreements … will be sent electronically to the email address you provided during account creation.” The “documents and agreements” purportedly included a customer service agreement (CSA), which contained arbitration provisions. A few days after purchasing the cellular service, Fazio visited an Altice retail store and purchased a cellphone. During this visit, a salesperson provided Fazio with a retail installment contract, which purportedly incorporated portions of the CSA.

In 2021, during the COVID-19 pandemic, Fazio, who has a medical condition that renders him unable to wear a face mask, attempted to enter an Altice retail store to discuss an issue with his phone. Altice employees allegedly refused him access for failing to wear a face mask and called the police. In 2022, Fazio sued Altice under the New Jersey Law Against Discrimination, alleging that Altice store employees discriminated against and harassed him by refusing to accommodate his medical condition and calling the police.

In support of its motion to compel arbitration and to dismiss the complaint for failure to state a claim, Altice argued that, although it could not point to a specific email that it sent to Fazio, the CSA containing the relevant arbitration provisions would have been emailed to him in accordance with Altice’s routine habit and business practice. In support of that argument, Altice submitted an affidavit from its senior director of business process management for retail stores, who generally certified that Fazio would have received a copy of the CSA by email following purchase of his cellular service. In opposition, Fazio challenged the probative weight of Altice’s affidavit and argued that there was no evidence that Altice emailed him the CSA containing the arbitration provisions.

The trial court granted Altice’s motion to dismiss, and the Appellate Division affirmed. The New Jersey Supreme Court granted Fazio’s petition for certification limited to “the sufficiency of establishing mutual assent through a business’ practice of sending a customer service agreement without proving that practice was followed as to [Fazio].” On appeal, the Supreme Court reversed the judgment of the Appellate Division and remanded the case for trial.

The New Jersey Supreme Court’s Analysis 

In reversing the Appellate Division’s decision, the state Supreme Court explained that evidence of a specific, repeated and regular business habit or practice is generally admissible to establish a rebuttable presumption that a business acted in conformity with that habit or practice under New Jersey Rule of Evidence 406. If the offeror successfully establishes such presumption, then the opposing party may rebut it by demonstrating the existence of a genuine issue of material fact about whether the business conformed to its regular habit or practice in a particular case. In Fazio, however, the Supreme Court concluded that Altice had failed to provide sufficient evidence of such habit or practice to establish the rebuttable presumption.

The Supreme Court began its analysis by noting that, per the express terms of Rule 406(a), evidence of habit or routine practice need not be corroborated to be admissible circumstantial evidence that a business acted in conformity with such habit or routine practice. Moreover, such evidence may give rise to a rebuttable presumption that the business acted in conformity with the habit or practice in a particular case. But the Supreme Court explained that, before a court may admit evidence of a habit or routine, the offering party must establish the requisite “degree of specificity” and the “frequency of [its] uniform response.” According to the Supreme Court, the “degree of specificity” of the habit or routine evidence is “not a minor detail” but rather “‘crucial’ to establishing that a business employed a regular practice of addressing a particular kind of situation with a specific type of conduct ‘and the likelihood that it occurred on the occasion at bar.’” The evidence must ensure more than the business’ mere “tendency” to act in a given manner, but rather that the business’ conduct is “semi-automatic” in nature. 

The Supreme Court then examined the Altice affidavit, concluding that it failed to provide the requisite “degree of specificity” as to Altice’s specific business practices or how Altice’s actions in the case conformed to them. For example, the court emphasized that, in the Altice affidavit, Altice’s representative:

• Certified he was “familiar … with Altice’s and Optimum Mobile’s business practices” without actually identifying them
• Did not describe how such habit or routine practices were undertaken
• Did not certify that an email is automatically sent by a computer upon a certain condition or that it is a specific employee’s job to send an email after a customer purchases cellular service
• Did not set forth with specificity what customer service representatives routinely discussed with customers
• Did not list how, when or from whom emails containing customer service agreements were routinely sent
• Only speculated in conditional terms that “while placing orders [Fazio] would have discussed the [CSA] and any contract terms and conditions for the [cellular] service with a customer service representative” and that when “[Fazio] ordered cellular services” he “would have received a copy of the [CSA] by email”

In short, the Supreme Court concluded that the Altice affidavit “did not set forth what … Altice’s … specific business practices were regarding how customers were provided with service agreements.”

Finally, because Altice had not established its entitlement to a rebuttable presumption that it emailed the CSA to Fazio, the Supreme Court did not reach any conclusions as to the enforceability of the CSA’s arbitration provisions or whether the parties mutually assented to arbitrate.

Takeaways

Fazio is a warning to businesses (and their counsel) to ensure that their routine business practices or habits are detailed, documented and supported by specific, thorough affidavits from knowledgeable representatives. Although evidence of a business’ habit or routine practice is generally admissible without corroboration, the evidence demonstrating such habit or routine practice and a business’ actions in conformance therewith still must be sufficiently specific to establish that the business’ conduct is “semi-automatic” in nature. Following Fazio, courts will view the specificity of such evidence as “crucial” under New Jersey Rule of Evidence 406(a).

In the pre-litigation context, businesses would be well advised to examine their routine business practices—particularly as they pertain to the transmittal of customer documents via email—to ensure that they are appropriately detailed and documented. Relatedly, when defending themselves in litigation through use of circumstantial and habit evidence, businesses and their counsel should be careful to include sufficient details describing their routine business practices, including specific steps, triggers, conditions and responsible personnel, all of which help demonstrate “a repeated behavioral response to a specific factual stimulus.”

Reprinted with permission from New Jersey Law Journal, © ALM Media Properties LLC. All rights reserved.