NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1096-17T1
ALAN MARCUS AND THE MARCUS GROUP, INC.,
Plaintiffs-Appellants,
v.
DENNIS MCNERNEY,
Defendant-Respondent,
and
CATHY MCNERNEY,
Defendants. ________________________________
Argued January 30, 2018 – Decided July 12, 2018
Before Judges Fisher and Sumners.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8093-14.
Joseph B. Fiorenzo, argued the cause for appellants (Sills Cummis & Gross, PC, attorneys; Joseph B. Fiorenzo, of counsel and on the brief; Stephen M. Klein, on the brief).
Stephen R. Katzman, argued the cause for respondent (Methfessel & Werbel, attorneys; Stephen R. Katzman, of counsel and on the brief).
PER CURIAM
Plaintiffs Alan Marcus and The Marcus Group, Inc. filed suit
against defendants Dennis McNerney and Cathy McNerney (husband and
wife) for comments they posted on the PolitickerNJ.com website
(PolitickerNJ) that were allegedly defamatory, an invasion of
privacy – false light, and in violation of the Computer Related
Offenses Act (CROA), N.J.S.A. 2A:38A to -6. We granted plaintiffs
leave to appeal the trial court's grant of partial summary judgment
to defendants dismissing all CROA claims. We conclude that, as a
matter of law, the postings do not fall within the protections of
CROA, and, therefore, we affirm.
I
Marcus – active in New Jersey politics since the 1960's and
having served in leadership positions in the Bergen County
Republican Committee – is the Chief Executive Officer and sole
owner of The Marcus Group, Inc., which offers lobbying, strategic
counseling, advertising, public relations and crisis management
services to private and public entities. In 2010, Marcus was an
advisor to Kathleen Donovan, the Republican candidate for the
2 A-1096-17T1 office of Bergen County Executive, who defeated McNerney,1 the
two-term incumbent. After the election, Marcus served as Chairman
of Donovan's transition team. In the ensuing years, Marcus' role
and influence in the county government came under scrutiny by the
Bergen County Board of Chosen Freeholders and the media, as well
as the United States Attorney's Office, which investigated a public
relations contract awarded to The Marcus Group by Bergen County
Community College.
Pertinent to this appeal, plaintiffs sued McNerney claiming
that leading up to Donovan's successful 2014 re-election campaign,
McNerney, in his name and using fictitious identities, posted
scores of defamatory comments on PolitickerNJ accusing Marcus of
fraud, blackmail, corruption, and exchanging "sex for contracts,"
to scandalize Marcus and to defeat Donovan. Contending
PolitickerNJ required its invited users to agree not to post:
"defamatory, abusive, threatening or harassing speech; personal
attacks of any kind of any kind[;]. . . content that is untrue,
inaccurate, deliberately, misleading, or trade libelous, . . .
[or] creat[e] a misleading screen name that misrepresents the
poster's identity in an identifiable fashion," plaintiffs asserted
1 All references to "McNerney" are to Dennis since Cathy was dismissed as a party and is not involved in this appeal.
3 A-1096-17T1 that under the CROA they were entitled to damages. Relying upon
N.J.S.A. 2A:38A-3(c), plaintiffs claimed they were financially
damaged because McNerney's posts were a "purposeful or knowing,
and unauthorized access[] or attempt to access any computer,
computer system or computer network."
In granting partial summary judgment dismissing the CROA
claims, Judge John D. O'Dwyer issued a written rider to his order
stating that viewing the allegations in the light most favorable
to plaintiffs, McNerney's postings on PolitickerNJ did "not
constitute purposeful and knowing conduct as contemplated by
CROA."2 The judge explained the posts did not violate the CROA
because they "did not purposefully and knowingly access the
website's computer network in an unauthorized manner."
II
When reviewing an order granting summary judgment, we apply
"the same standard governing the trial court." Oyola v. Xing Lan
Liu, 431 N.J. Super. 493, 497 (App. Div. 2013). A court should
grant summary judgment when the record reveals "no genuine issue
2 Judge O'Dwyer also ruled that Marcus was a public figure who must establish by clear and convincing evidence that any posting must be done with malice; that some of the alleged defamatory statements as barred by the one-year statute of limitations under N.J.S.A. 2A:14-3; that all claims against Cathy are dismissed because she had no involvement with the postings. We do not address these rulings because the leave to appeal was limited to the alleged violations of the CROA.
4 A-1096-17T1 as to any material fact" and "the moving party is entitled to a
judgment or order as a matter of law." R. 4:46-2(c). We accord
no deference to the trial judge's legal conclusions. Nicholas v.
Mynster, 213 N.J. 463, 478 (2013) (citations omitted). Guided by
these standards, we are convinced that the judge properly
interpreted the CROA in his dismissal of plaintiff's CROA claims.
The CROA provides:
A person or enterprise damaged in business or property as a result of any of the following actions may sue the actor therefor in the Superior Court and may recover compensatory and punitive damages and the cost of the suit, including a reasonable attorney's fee, costs of investigation and litigation:
a. The purposeful or knowing, and unauthorized altering, damaging, taking or destruction of any data, data base, computer program, computer software or computer equipment existing internally or externally to a computer, computer system or computer network;
b. The purposeful or knowing, and unauthorized altering, damaging, taking or destroying of a computer, computer system or computer network;
c. The purposeful or knowing, and unauthorized accessing or attempt to access any computer, computer system or computer network;
d. The purposeful or knowing, and unauthorized altering, accessing, tampering with, obtaining, intercepting, damaging or destroying of a financial instrument; or
e. The purposeful or knowing accessing and reckless altering, damaging, destroying or obtaining of any data, data base, computer,
5 A-1096-17T1 computer program, computer software, computer equipment, computer system or computer network.
[N.J.S.A. 2A:38A-3]
Plaintiffs argued that McNerney knowingly posted comments on
PolitickerNJ thereby engaging in an "unauthorized access" and
"unauthorized altering" of the website's computers prohibited by
the CROA.
To support their vision of the CROA, plaintiffs rely upon
Fairway Dodge v. Decker Dodge, 191 N.J. 460, 464 (2007), where our
Supreme Court held that the defendant was liable in using his
employer's computer in an unauthorized manner to copy customer
lists for a competitor. Plaintiffs argue that the Court's
statutory interpretation of the "unauthorized" element of the CROA
Free access — add to your briefcase to read the full text and ask questions with AI
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-1096-17T1
ALAN MARCUS AND THE MARCUS GROUP, INC.,
Plaintiffs-Appellants,
v.
DENNIS MCNERNEY,
Defendant-Respondent,
and
CATHY MCNERNEY,
Defendants. ________________________________
Argued January 30, 2018 – Decided July 12, 2018
Before Judges Fisher and Sumners.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8093-14.
Joseph B. Fiorenzo, argued the cause for appellants (Sills Cummis & Gross, PC, attorneys; Joseph B. Fiorenzo, of counsel and on the brief; Stephen M. Klein, on the brief).
Stephen R. Katzman, argued the cause for respondent (Methfessel & Werbel, attorneys; Stephen R. Katzman, of counsel and on the brief).
PER CURIAM
Plaintiffs Alan Marcus and The Marcus Group, Inc. filed suit
against defendants Dennis McNerney and Cathy McNerney (husband and
wife) for comments they posted on the PolitickerNJ.com website
(PolitickerNJ) that were allegedly defamatory, an invasion of
privacy – false light, and in violation of the Computer Related
Offenses Act (CROA), N.J.S.A. 2A:38A to -6. We granted plaintiffs
leave to appeal the trial court's grant of partial summary judgment
to defendants dismissing all CROA claims. We conclude that, as a
matter of law, the postings do not fall within the protections of
CROA, and, therefore, we affirm.
I
Marcus – active in New Jersey politics since the 1960's and
having served in leadership positions in the Bergen County
Republican Committee – is the Chief Executive Officer and sole
owner of The Marcus Group, Inc., which offers lobbying, strategic
counseling, advertising, public relations and crisis management
services to private and public entities. In 2010, Marcus was an
advisor to Kathleen Donovan, the Republican candidate for the
2 A-1096-17T1 office of Bergen County Executive, who defeated McNerney,1 the
two-term incumbent. After the election, Marcus served as Chairman
of Donovan's transition team. In the ensuing years, Marcus' role
and influence in the county government came under scrutiny by the
Bergen County Board of Chosen Freeholders and the media, as well
as the United States Attorney's Office, which investigated a public
relations contract awarded to The Marcus Group by Bergen County
Community College.
Pertinent to this appeal, plaintiffs sued McNerney claiming
that leading up to Donovan's successful 2014 re-election campaign,
McNerney, in his name and using fictitious identities, posted
scores of defamatory comments on PolitickerNJ accusing Marcus of
fraud, blackmail, corruption, and exchanging "sex for contracts,"
to scandalize Marcus and to defeat Donovan. Contending
PolitickerNJ required its invited users to agree not to post:
"defamatory, abusive, threatening or harassing speech; personal
attacks of any kind of any kind[;]. . . content that is untrue,
inaccurate, deliberately, misleading, or trade libelous, . . .
[or] creat[e] a misleading screen name that misrepresents the
poster's identity in an identifiable fashion," plaintiffs asserted
1 All references to "McNerney" are to Dennis since Cathy was dismissed as a party and is not involved in this appeal.
3 A-1096-17T1 that under the CROA they were entitled to damages. Relying upon
N.J.S.A. 2A:38A-3(c), plaintiffs claimed they were financially
damaged because McNerney's posts were a "purposeful or knowing,
and unauthorized access[] or attempt to access any computer,
computer system or computer network."
In granting partial summary judgment dismissing the CROA
claims, Judge John D. O'Dwyer issued a written rider to his order
stating that viewing the allegations in the light most favorable
to plaintiffs, McNerney's postings on PolitickerNJ did "not
constitute purposeful and knowing conduct as contemplated by
CROA."2 The judge explained the posts did not violate the CROA
because they "did not purposefully and knowingly access the
website's computer network in an unauthorized manner."
II
When reviewing an order granting summary judgment, we apply
"the same standard governing the trial court." Oyola v. Xing Lan
Liu, 431 N.J. Super. 493, 497 (App. Div. 2013). A court should
grant summary judgment when the record reveals "no genuine issue
2 Judge O'Dwyer also ruled that Marcus was a public figure who must establish by clear and convincing evidence that any posting must be done with malice; that some of the alleged defamatory statements as barred by the one-year statute of limitations under N.J.S.A. 2A:14-3; that all claims against Cathy are dismissed because she had no involvement with the postings. We do not address these rulings because the leave to appeal was limited to the alleged violations of the CROA.
4 A-1096-17T1 as to any material fact" and "the moving party is entitled to a
judgment or order as a matter of law." R. 4:46-2(c). We accord
no deference to the trial judge's legal conclusions. Nicholas v.
Mynster, 213 N.J. 463, 478 (2013) (citations omitted). Guided by
these standards, we are convinced that the judge properly
interpreted the CROA in his dismissal of plaintiff's CROA claims.
The CROA provides:
A person or enterprise damaged in business or property as a result of any of the following actions may sue the actor therefor in the Superior Court and may recover compensatory and punitive damages and the cost of the suit, including a reasonable attorney's fee, costs of investigation and litigation:
a. The purposeful or knowing, and unauthorized altering, damaging, taking or destruction of any data, data base, computer program, computer software or computer equipment existing internally or externally to a computer, computer system or computer network;
b. The purposeful or knowing, and unauthorized altering, damaging, taking or destroying of a computer, computer system or computer network;
c. The purposeful or knowing, and unauthorized accessing or attempt to access any computer, computer system or computer network;
d. The purposeful or knowing, and unauthorized altering, accessing, tampering with, obtaining, intercepting, damaging or destroying of a financial instrument; or
e. The purposeful or knowing accessing and reckless altering, damaging, destroying or obtaining of any data, data base, computer,
5 A-1096-17T1 computer program, computer software, computer equipment, computer system or computer network.
[N.J.S.A. 2A:38A-3]
Plaintiffs argued that McNerney knowingly posted comments on
PolitickerNJ thereby engaging in an "unauthorized access" and
"unauthorized altering" of the website's computers prohibited by
the CROA.
To support their vision of the CROA, plaintiffs rely upon
Fairway Dodge v. Decker Dodge, 191 N.J. 460, 464 (2007), where our
Supreme Court held that the defendant was liable in using his
employer's computer in an unauthorized manner to copy customer
lists for a competitor. Plaintiffs argue that the Court's
statutory interpretation of the "unauthorized" element of the CROA
in Fairway Dodge, equates to McNerney's use of PolitickerNJ in a
manner expressly prohibited by the website, thereby causing damage
to a plaintiff. Thus, they contend that their CROA claims should
not have been summarily dismissed.
We conclude that plaintiff's overly broad interpretation of
the CROA distorts the statute's clear meaning and is therefore
incorrect. Our rules of statutory construction are well known.
"It is a basic rule of statutory construction to ascribe to plain
language its ordinary meaning." Bridgewater-Raritan Educ. Ass'n
v. Bd. of Educ. of Bridgewater-Raritan Sch. Dist., Somerset Cty.,
6 A-1096-17T1 221 N.J. 349, 361 (2015) (citing D'Annunzio v. Prudential Ins. Co.
of Am., 192 N.J. 110, 119-20 (2007)). It is a primary purpose of
a court to "seek to effectuate the 'fundamental purpose for which
the legislation was enacted.'" Twp. of Pennsauken v. Schad, 160
N.J. 156, 170 (1999) (quoting N. J. Builders, Owners & Managers
Ass'n v. Blair, 60 N.J. 330, 338 (1972)). Yet, "[w]hen all is
said and done, the matter of statutory construction . . . will
not justly turn on literalisms, technisms or the so-called formal
rules of interpretation; it will justly turn on the breadth of the
objectives of the legislation and the commonsense of the
situation." Jersey City Chapter, P.O.P.A. v. Jersey City, 55 N.J.
86, 100 (1969).
Clearly, the CROA's plain language provides a civil remedy
for a person or entity whose business or property is damaged by
someone who knowingly gains, or attempts to gain, unauthorized
access, tampering or destruction to the person's or entity's
computer system. There is no doubt that McNerney did not access,
tamper, or destroy plaintiffs' computer system; his posts were on
PolitickerNJ, which, based on the record before us, has not
objected to them. Accordingly, plaintiffs' reliance on Fairway
Dodge is misplaced. There, the Court concluded no CROA violation
occurred where there was no evidence that two of the named
defendants "acted purposefully or knowingly" in accessing
7 A-1096-17T1 plaintiff's computer to obtain information. Fairway Dodge, 191
N.J. at 469-70. However, two other named defendants who admitted
to accessing plaintiff's computer without authorization were
liable under the CROA. Id. at 464. Thus, the CROA violations in
Fairway, which involved the defendants' unauthorized access to the
plaintiff's computer, is not the situation presented here.
McNerney, like others viewing PolitickerNJ, was invited to
post comments on the website regarding his thoughts and opinions.
Even agreeing with plaintiffs – as Judge O'Dwyer did – that some
of McNerney's posts violated PolitickerNJ's user requirements
prohibiting comments that are defamatory, abusive, threatening,
personal attacks, untrue, inaccurate, or misleading, the CROA does
not apply to their contentions. Contrary to plaintiffs' argument,
PolitickerNJ's user guidelines do not define what is prohibited
under the CROA, the statute's language does. We thus agree with
McNerney that under plaintiff's reading of the CROA, every breach
of a social media outlet's user requirements could be used to
invoke the CROA. There is nothing in the statute's plain language
that calls for such an inaccurate and distorted interpretation.
Accordingly, McNerney posts concerning Marcus on PolitickerNJ did
not violate the CROA.
Affirmed.
8 A-1096-17T1