Specificity as the Keystone: New Jersey Supreme Court Clarifies When Habit Evidence Creates a Rebuttable Presumption
Commentary on Gerald Fazio Jr. v. Altice USA, 256 N.J. ___ (2025)

1. Introduction

Gerald Fazio Jr. v. Altice USA presented the Supreme Court of New Jersey with a deceptively simple question that resonates far beyond the parties: When may a corporation rely on evidence of its business “habit” to prove that it followed that habit in a particular transaction?

The dispute arose after Altice employees denied Fazio—who has quadriplegia and cannot wear a face mask—entry during the COVID-19 pandemic. Accusing Altice of disability discrimination under the New Jersey Law Against Discrimination (LAD), Fazio sued in court. Altice moved to compel arbitration, asserting that a Customer Service Agreement (CSA) containing an arbitration clause had been emailed to Fazio at the time of purchase. Because Altice had no direct proof that the email was ever sent or received, it invoked N.J.R.E. 406—the Rule permitting evidence of “habit or routine practice” to establish that the same act likely occurred in the case at bar.

The trial court and Appellate Division accepted Altice’s position based on a single employee affidavit describing general practices. The Supreme Court reversed, holding that while habit evidence can create a rebuttable presumption of conformity, the proponent must show a specific, repeated, and regular practice with enough detail to rise above a mere “tendency.” The decision not only sends Fazio’s discrimination claims to trial; it recalibrates how New Jersey courts will treat habit evidence—especially in consumer-contract and arbitration settings.

2. Summary of the Judgment

• The Court unanimously reversed the Appellate Division’s order compelling arbitration.
• It held that N.J.R.E. 406 allows a defendant to raise a rebuttable presumption by showing a specific, regular business habit—but Altice’s affidavit lacked the required specificity.
• Because Altice was not entitled to the presumption, there was no evidence that the CSA (with its arbitration clause) was ever delivered; the Court therefore did not reach whether the parties mutually assented to arbitrate.
• The matter was remanded directly for trial; Altice had disclaimed the need for further discovery on its habit evidence.

3. Analysis

3.1 Precedents Cited

• N.J.R.E. 406 (Habit/Routine Practice) – Central rule interpreted.
• Sharpe v. Bestop, Inc., 158 N.J. 329 (1999) – Clarified that admissible habit requires “semi-automatic” uniform response.
• Showalter v. Barilari, Inc., 312 N.J. Super. 494 (App. Div. 1998) – Emphasized need for specificity in habit evidence.
• Atalese v. U.S. Legal Services Grp., 219 N.J. 430 (2014) – Required clear, unambiguous notice of waiver of jury trial in consumer arbitration clauses; cited in dicta to show RIC itself was non-compliant.
• National treatises (McCormick on Evidence) – Quoted for the definition of habit as “regular practice” and rationale for admissibility.

“Lack of specificity in defining a habit or routine practice should preclude its admissibility into evidence.” – Justice Fasciale

The Court wove these authorities into a bright-line demand for granular detail: affidavits must describe who does what, when, and how frequently. A conclusory statement that a customer “would have received an email” will no longer suffice.

3.2 Legal Reasoning

1. Textual reading of Rule 406. The Court began with the rule’s plain language: evidence of habit “is admissible” and “need not be corroborated.” However, admissibility does not automatically generate a presumption; the proof must show a “degree of specificity and frequency” that transforms a tendency into a reliable habit.
2. Rebuttable presumption framework. Once a party offers sufficiently specific habit evidence, a rebuttable presumption of conformity arises. The burden then shifts to the opponent to produce evidence creating a genuine factual dispute. This approach promotes efficiency without sacrificing fairness.
3. Application to Altice’s affidavit. The affidavit merely asserted managerial “familiarity” with business practices and speculated that Fazio “would have” been emailed the CSA. It omitted:
   • The system or personnel responsible for sending the email.
   • How the email process is triggered (automatic on purchase? manual step?).
   • Statistics or records showing the practice is followed close to 100% of the time.
   The Court characterized these omissions as fatal under Rule 406.
4. Contract-formation consequences. Because Altice failed on the evidentiary step, the Court declined to reach contract questions of mutual assent or Atalese compliance. The arbitration clause never made it in front of Fazio, so those doctrinal issues were moot.

3.3 Potential Impact

• Elevated affidavit standards. Businesses seeking to compel arbitration (or prove any fact via habit) must now marshal granular data—log files, automated system descriptions, training manuals, or sample records—rather than generic declarations.
• Consumer and employee litigation. Plaintiffs challenging browsewrap, clickwrap, or post-transaction emailed terms gain a stronger footing to demand proof of actual delivery.
• E-commerce record-keeping. Companies may adopt auditable systems that log transmission and receipt of contractual materials to meet Rule 406’s specificity threshold.
• Procedural efficiency. By framing the issue as an evidence rule rather than a contract doctrine, the Court created a tidy gatekeeping step—courts decide the admissibility and sufficiency of habit evidence before wading into substantive arbitration law.

4. Complex Concepts Simplified

• Habit vs. Character Evidence – Habit shows a regular response to a specific stimulus (e.g., always clocking in with a biometric scan); character shows a person’s generalized disposition (e.g., “careful driver”). Habit is admissible to prove conduct; character usually is not.
• Rebuttable Presumption – A legal shortcut: if one party meets a preliminary evidentiary threshold, the fact is assumed true unless the opponent produces contrary evidence.
• Mutual Assent – Meeting of the minds; both parties knowingly agree to the same terms. In consumer arbitration, assent requires clear notice that court rights are being waived.
• Atalese Compliance – Under New Jersey law, an arbitration clause must explicitly tell a consumer they are giving up the right to sue in court and have a jury trial.
• Browsewrap / Email-wrap – Contracts presented via website links or follow-up emails rather than physical documents. Courts scrutinize whether the consumer had reasonable notice.

5. Conclusion

Fazio v. Altice USA carves a precise niche in New Jersey evidence law. It endorses the use of habit evidence to create rebuttable presumptions only when the proponent supplies concrete, specific details demonstrating a near-automatic practice. In arbitration disputes, this means a corporation’s bare assertion that “we always send the contract” will no longer suffice. The decision harmonizes evidentiary rigor with consumer-protection principles, ensuring that waiver of fundamental rights—like a jury trial—cannot hinge on equivocal proof.

Practitioners should treat the case as a warning: generalized affidavits are out; system logs, timestamps, and well-documented workflows are in. And courts now have a clear, structured pathway for analyzing habit evidence before addressing the thornier questions of contract formation and arbitration enforceability.