HO-HO-KUS, INC., Plaintiff, v. STEVEN SUCHARSKI, JANEEN SUCHARSKI, and SAJE AEROSPACE, INC., Defendants.
Case No. 2:23-cv-01677 (BRM) (JSA)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
August 21, 2025
MARTINOTTI, DISTRICT JUDGE
NOT FOR PUBLICATION
MARTINOTTI, DISTRICT JUDGE
Before the Court is Plaintiff Ho-Ho-Kus, Inc.‘s (“HHK“) Motion to Dismiss (“Motion“) Defendants Steven Sucharski‘s (“Sucharski“) and Saje Aerospace, Inc.‘s (“Saje“) (together with Sucharski, “Defendants“) Second Amended Counterclaims (ECF No. 61) pursuant to
I. BACKGROUND
For the purpose of this Motion, the Court accepts the factual allegations in the Second Amended Counterclaims as true and draws all inferences in the light most favorable to Defendants. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). The Court also considers any
The factual and procedural backgrounds of this matter are well-known to the parties and were previously recounted in great depth by the Court in its prior opinions: (1) granting in part and denying in part Defendants’ Motion to Dismiss and denying HHK‘s application for a Preliminary Injunction and Temporary Restraining Order (ECF No. 38); and (2) granting HHK‘s Motion to Dismiss Defendants’ Amended Counterclaims (ECF No. 55). Accordingly, the Court will recount only the factual background and procedural history associated with this Motion.
A. Factual Background
HHK is a New Jersey corporation founded in 1992 (Compl. (ECF No. 1) ¶¶ 8, 10) that designs and manufactures high precision parts and components for certain commercial and government/military customers based on detailed proprietary prints and models provided to the company (id. at ¶ 11; Second Am. Countercls. (ECF No. 61) ¶ 5.) Sucharski served as General Manager and President of HHK from 2015 to 2022, during which time he oversaw all aspects of the business and was responsible for developing and safeguarding its proprietary information. (ECF No. 1 ¶¶ 22-23.) Specifically, Sucharski oversaw sales, business development, and customer relationships in addition to supervising the engineering manager in Fair Lawn, New Jersey and the on-site operations managers at HHK‘s Paterson, New Jersey and Richmond, Virginia manufacturing facilities. (ECF No. 61 ¶ 15.)
During Sucharski‘s employment with HHK, owner and director, Tom Nepola (“Nepola“), was directly engaged in supporting, negotiating, and approving major customer and supplier contracts, exclusively oversaw the VP of Finance, and was involved in nearly all other aspects of HHK‘s business. (Id. ¶ 16.) Throughout his time at HHK, Sucharski became concerned with
The industry in which HHK operates is highly regulated, and manufacturers, including HHK, and others are “subject to non-government standards, certifications, and accreditation that is required even to design, manufacture, or sell parts of this nature[.]” (Id. ¶ 18.) Principal among these required certifications is the AS9100 certification, an audit for which HHK underwent annually with a more comprehensive re-certification audit every third year. (Id. ¶¶ 19-20.) The recertification audits covered, among other things, quality management systems and procedures. (Id. ¶ 20.) In June 2022, HHK underwent a recertification audit (the “Recertification Audit“) designed to ensure compliance with guidelines set forth by SAE International, the governing body that maintains aerospace approvals, qualifications and shipment authorities in the industry. (Id. ¶ 21.) The last audit before the June 2022 audit occurred one year prior in the Summer of 2021 and was followed soon thereafter by the resignation of HHK‘s top quality manager. (Id.) Nepola did not permit Sucharski or others to immediately hire a replacement quality manager and only approved a new hire in March 2022 after Sucharski and HHK‘s New Jersey and Virginia site operations managers “pleaded with [him]” to do so. (Id. ¶ 22.)
Nepola would instruct Sucharski or other site operations managers to “take care of it” whenever they raised “concerns” regarding a lack of resources to adequately address HHK‘s quality management systems, often with dubious reporting and staging to pass an audit without resolving underlying issues or providing adequate resources to maintain an AS9100-compliant system. (Id. ¶ 23.) In one instance, HHK‘s Virginia site operations manager “expressed deep
In the weeks before the 2022 Recertification Audit, Sucharski—along with various subordinates, including Kennedy and Slobodan Mladjenovic (“Mladjenovic“), the New Jersey site operations manager—agreed “to do the best [they] could with the limited time and resources available but, at Sucharski‘s direction, without the illegal and unethical misdirection and pencil-whipping demanded of Mr. Nepola.” (Id. ¶ 28.) Meanwhile, Nepola demanded Sucharski terminate
Mladjenovic was purportedly “buffered” by Sucharski from Nepola‘s demands, which were “primarily communicated directly to Sucharski who was responsible for operations at both HHK sites[,]” and did not “openly buck[]” Nepola. (Id. ¶ 36.) “While Mr. Mladjenovic may have, at times, agreed with the concerns raised by Sucharski and others in regards to a lack of resources at HHK,” Mladjenovic never “openly refused” to comply with Nepola‘s demands. (Id.) Moreover, Mladjenovic had a “passive nature,” “presented a valuable opportunity for control by Nepola because he could be close by at HHK‘s New Jersey [s]ite where Mr. Nepola could keep him on a short leash[,]” and “was already compromised and under Mr. Nepola‘s influence and intimidation when he was appointed as ‘President’ of HHK‘s New Jersey operations because, by that time, Mr.
Kennedy was allegedly terminated by George as part of “the retaliation against Mr. Kennedy that Mr. Nepola had been demanding and to which Sucharski had objection.” (Id. ¶ 39.) Sucharski, in turn, was reassigned to a “distinct line of business established in June 2022 to supply after-market, spare products to customers in the commercial aerospace industry[,]” to which HHK allegedly dedicated no resources. (Id. ¶¶ 40-41.) At Nepola‘s request, Sucharski “transferred all sales information, sales contracts, quotes, purchase orders, customers, [and] client lists” to Mladjenovic, George, and other HHK staff, and his computer, workspace, and email credentials to Mladjenovic. (Id. ¶ 43.) Sucharski was also transferred to an office in Jupiter, Florida in connection with his new role and was told to work out of that office to maintain employment with HHK. (Id. ¶ 45.) On his only trip to that office in September 2022, Sucharski was allegedly threatened that his new division would “need to make money by January 2023 . . . to support his salary or else Mr. Nepola planned to ‘cut [him] off.‘” (Id. ¶ 46.) Still, Sucharski was allegedly never provided with sufficient resources to support the new business, and Nepola consistently avoided Sucharski‘s attempts at contact from August to October 2022. (Id. ¶ 47.)
On November 11, 2022, HHK sent Sucharski a document titled “Intellectual Property Acknowledgement” purportedly to verify in writing that he had not, and would not, misuse or disclose any Protected Information. (Id. ¶¶ 48-49.) The Intellectual Property Acknowledgement included, in relevant part, language suggesting: (1) it served to address concerns originating from HHK‘s customers’ legal departments regarding how their intellectual property was being used (although it did not fully define the intellectual property in question); (2) HHK‘s customer‘s
Sucharski did not refuse to sign the agreement but instead wrote an email in the evening of November 17, 2022, to Nepola and an HHK attorney in which he stated he had contacted counsel regarding the agreement and emphasized he did not have any copies of HHK or customer intellectual property in his possession. (Id. ¶ 56.) Roughly twelve hours after Sucharski‘s email, HHK terminated Sucharski in a letter dated November 17, 2022, which was electronically transmitted to him at 6:00 a.m. on November 18, 2022. (Id. ¶¶ 57, 59.) After the termination letter, Nepola nevertheless sent Sucharski a text message saying, “Sign the F[*]CKING form and send it to me and we will resume [the new business] plan together[,]” allegedly to prevent Sucharski from becoming a whistleblower. (Id. ¶ 58.) Sucharski also received multiple instructions via letters and in-person meetings, including with Mladjenovic, to turn over company materials still in Sucharski‘s possession and “promptly return or destroy” data. (Id. ¶¶ 63-64.)
One week after Saje‘s formation, on November 30, 2022, HHK published an allegedly defamatory post on LinkedIn (“LinkedIn post“) titled “Termination of Company President Steve Sucharski,” which included “a variety of broad industry-related tags so that it would not only be picked up among Sucharski‘s over 1,500 connections . . . but also all others worldwide who searched for content with those industry tags“; however, the content of the LinkedIn post itself only discussed Sucharski‘s termination and did not mention any other companies, including Saje. (Id. ¶ 78.) According to Defendants,
The LinkedIn post‘s reference to Sucharski and Sucharski‘s personal LinkedIn profile is not unrelated to Saje because Saje is marketed through and referenced on Sucharski‘s personal LinkedIn page given his role as Saje executive and because anyone in the industry looking to partner with a new entrant such as Saje first reviews the background regarding the entrant and its principles [sic.]
(Id. ¶ 80.) Additionally, the LinkedIn post incorrectly stated Sucharski was the only HHK employee to not sign the Intellectual Property Acknowledgement, even though multiple HHK employees elected not to sign it. (Id. ¶ 82.)
In addition to the LinkedIn post, HHK allegedly spread “similar falsehoods” about Saje in the press and to others within the industry, including in two Law360 articles. (Id. ¶ 83.) The articles, published on March 24, 2023, and April 11, 2023, “included summaries of HHK‘s defamatory pleading” and “parroted HHK‘s defamatory allegations . . . and provid[ed] an embedded link to the Complaint in which those defamatory allegations were made by HHK[.]” (Id. ¶¶ 84-85.) However, HHK‘s only comments, made through a representative, were that it “declined to comment aside from its filing” and that “Ho-Ho-Kus stands by the allegations in its Complaint[.]” (Id. ¶¶ 85-86.) Furthermore, HHK “has interfered with Saje‘s business relationships using similar defamatory statements” which were made to “a high-level aerospace individual close with Mr. Nepola,” a “top industry player” who has “communicated to other industry representatives” and “industry participants” those same statements. (Id. ¶¶ 87, 112.)
Ultimately, Defendants contend HHK—specifically, Nepola—engaged in a series of “unlawful, deceptive, and unsafe business practices,” intimidation of employees, and mismanagement and refusal to provide needed resources ultimately resulting in the suspension following the June 2022 audit of HHK‘s critical AS9100 certification in or around August 2022. (Id. ¶ 1.) Defendants further allege Nepola “set out to scapegoat Sucharski” for the suspension of HHK‘s AS9100 certification and “engag[ed] in a pattern of retaliatory conduct culminating in
B. Procedural History
On December 17, 2024, Defendants filed their Answer and Second Amended Counterclaims. (ECF No. 61.) HHK filed an Opposition (ECF No. 67) on February 25, 2025, pursuant to the stipulation and consent order (ECF No. 66) entered on February 19, 2025, outlining the deadlines for the parties’ filings regarding the Motion. HHK filed a Reply on March 11, 2025. (ECF No. 68.)
II. LEGAL STANDARD
In deciding a motion to dismiss pursuant to
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.‘” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). This requires the complaint allege “more than a sheer possibility that a defendant has acted unlawfully,” but it “is not akin to a ‘probability requirement.‘” Id. (citing Twombly, 550 U.S. at 556). “Detailed factual allegations” are not required, but “more than an unadorned, the-defendant-unlawfully-harmed-me accusation” must be pled; it must include “factual enhancements” and not just conclusory statements or a recitation of the elements of a cause of action. Id. (citations omitted). In assessing plausibility, the Court may not consider any “[f]actual claims and assertions raised by a defendant.” Doe v. Princeton Univ., 30 F.4th 335, 345 (3d Cir. 2022).
“Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]‘—‘that the pleader is entitled to relief.‘” Id. (quoting
While, generally, the court may not consider anything beyond the four corners of the complaint on a motion to dismiss pursuant to
III. DECISION
HHK requests this Court dismiss both of Defendants’ Second Amended Counterclaims in which Sucharski alleges wrongful termination under CEPA and Saje asserts common law claims of defamation and/or trade libel. The Court addresses each in turn.
A. Wrongful Termination under CEPA (Counterclaim I)
HHK argues that Defendants’ Second Amended Counterclaims “play[] fast and loose with the Court” by changing critical facts about a former co-worker of Sucharski‘s at HHK to remedy the deficiencies identified by the Court in the causation element of the CEPA counterclaim, and that such attempts still fail to prove the necessary causal connection between Sucharski‘s whistleblowing activities and his subsequent termination by HHK. (ECF No. 64 at 1, 12.)
CEPA prohibits employers from taking retaliatory action against an employee who disagrees with or refuses to engage in illegal or otherwise unethical workplace activities. See
It is undisputed that Sucharski was terminated from HHK, and that termination is an adverse employment action under
1. Defendants Sufficiently Pled Causal Connection Between Sucharski‘s Whistleblowing Activity and His Termination by HHK
HHK generally argues that Defendants’ Second Amended Counterclaims change critical facts about Mladjenovic, a site manager and co-worker of Sucharski‘s at HHK, in an attempt to remedy the deficiencies identified by the Court regarding causation. (ECF No. 64 at 1.) Specifically, HHK contends that the “[t]he recasting of Mladjenovic as a ‘yes man’ who never ‘openly refused’ Nepola‘s demands” is contradicted by Defendants’ apparently unchanged Answer; HHK points to paragraph 31 of the Answer, which discusses Nepola‘s demand that Sucharski terminate multiple “site managers” who allegedly objected to Nepola‘s demands yet names only one other site manager besides Mladjenovic. (Id. at 11.) HHK claims Defendants admit Mladjenovic “expressed concerns or complaints” regarding Nepola‘s various actions through their allegation that Mladjenovic “agreed with the concerns raised by Sucharski,” and takes the position the difference between allegedly agreeing with such concerns and openly refusing to comply is “mere dissembling” and ultimately unsupported. (Id. at 12 (citing ECF No. 61 ¶ 36).) HHK further argues Defendants’ prior allegations concerning Mladjenovic‘s purportedly active and open refusal
In their opposition to the Motion, Defendants argue HHK‘s inference that the phrase “site managers” necessarily includes Mladjenovic is incorrect, as Defendants never argued “Mladjenovic was a whistleblower or that he voiced objections to the unlawful demands at issue[,]” and assert the phrase “site managers” refers instead to “operations manager Stuart Kennedy and quality assurance manager Mike Provost—the only managers Nepola demanded Sucharski terminate.” (ECF No. 67 at 1.) Defendants contend they addressed this issue for the first time in their Second Amended Counterclaims to “eliminat[e] any conceivable ambiguity,” and insist Sucharski was terminated for specific objections made “to Nepola‘s unlawful demands” and not any “generalized grievances” Mladjenovic or others had with respect to “HHK‘s lack of focus on quality.” (Id. at 2.) Specifically, Defendants claim their Second Amended Counterclaims clarify the unlawful reasons underpinning Sucharski‘s termination, and their CEPA counterclaim arises out of Sucharski‘s specific objections to four demands made by Nepola and HHK:
- “manipulation of records and processes and ‘pencil whipping’ with respect to the Audit and demands to fire or silence Kennedy and Provost;”
- “employment of a passivation tank at HHK‘s Virginia facility without standard safety measures and without complying with industry standards and customer specifications;”
- “termination of Kennedy in retaliation for resisting Nepola‘s unlawful demand to employ the passivation tank;” and
- “execution of the overbroad, unenforceable, and illegal IP Acknowledgement under a threat of termination . . . and in breach of whistleblower protections.
Their counterclaims, as amended, purportedly show the retention and promotion of Mladjenovic was done “to ensure [Nepola] had ‘yes men’ in place . . . to do his bidding and to enable him to have direct management . . . without an intermediary President like Sucharski who . . . served as a buffer.” (Id. at 14.) HHK‘s argument in favor of judicial estoppel shows, according to Defendants, that HHK “finds itself with no good option because the Court already rejected most of its dismissal arguments and any arguments regarding the [Second Amended Counterclaims] are foreclosed by the substantial factual allegations and detail, . . . which are to be accepted as true for purposes of this motion[,]” and HHK cites no case law showing the doctrine applies “to dismiss a pleading amended in response to a court order granting leave to amend[.]” (Id.) Importantly, Defendants claim HHK cannot establish the prerequisites for judicial estoppel because the positions Defendants have taken are not irreconcilably different because: (1) the allegations in the Second Amended Counterclaims merely “broaden[] th[e] allegation [with respect to who comprised site managers] to include Kennedy” (id. at 22); (2) there was no bad faith in the amendments, which were made ”at the invitation of this Court” (id. at 25 (emphasis in original)); and (3) ample alternative, lesser remedies would be acceptable in lieu of the extreme remedy of judicial estoppel, including, for example, granting Defendants further leave to amend Paragraph 31 of the Answer on which HHK centers its argument here (id. at 26-27).
Moreover, Defendants argue HHK‘s conflation of the allegations in the Second Amended Counterclaims with the Answer should be ignored because answers may not properly be relied upon in assessing the sufficiency of independent counterclaims on a motion to dismiss, and that Defendants have met their burden in showing causation as it requires a showing that “protected activity ‘was more likely than not a determinative factor in the decision‘” to terminate Sucharski‘s
To survive a motion to dismiss a CEPA claim, a plaintiff must adequately allege a causal connection between the whistleblowing activity and the adverse employment action. See Griffin, 2011 WL 12872504, at *3. This means plaintiff must avoid conclusory allegations and instead include enough facts from which “the court can infer that if the employer‘s actions remain unexplained, it is more likely than not that such actions were based on impermissible reasons.” Id. (“Plaintiff cannot satisfy the fourth prong (causal connection) simply by satisfying the second and third prongs (whistle[]blowing activity and adverse employment action) and then stating in a conclusory fashion that the termination was in retaliation for the whistle[]blowing activity.“). In some cases, courts have found temporal proximity between the whistleblowing activity and the challenged employer action to be so “‘unusually suggestive’ of retaliatory conduct as to obviate the need for additional allegations to establish the causal nexus,” though courts are generally reluctant to infer a causal nexus based on temporal proximity alone. Paskas v. United Parcel Serv., Inc., Civ. A. No. 23-1162, 2023 WL 9017080, at *6 (D.N.J. Dec. 29, 2023) (quoting Young v. Hobart W. Grp., 897 A.2d 1063, 1073 (N.J. Super. Ct. App. Div. 2005)). Where temporal proximity is not found to be unusually suggestive, plaintiffs may still succeed in establishing a causal
Here, the Court finds Defendants have now sufficiently pled a causal connection between Sucharski‘s protected whistleblowing activities and his termination by HHK. The Second Amended Counterclaims now show Sucharski was not alone in voicing concerns and engaging in whistleblowing activity, but that he alone was met with termination. (See ECF No. 61 ¶¶ 26-28, 33-42.) Defendants argue the Court should focus on Sucharski‘s allegedly pretextual reassignment to HHK‘s after-market line of business as strong circumstantial evidence of the causal connection between his whistleblowing activities and termination. (ECF No. 67 at 17.) The Court finds the Second Amended Counterclaims sufficiently remedy deficiencies identified in the prior opinion (see ECF No. 55 at 30-31), and provide a coherent and convincing explanation for Sucharski‘s reassignment and ultimate termination that is consistent with an inference of retaliatory motive and supported by specific allegations showing Sucharski was treated less favorably than those other employees for engaging in the same activity. See Cohen, 419 F. Supp. 3d at 853. The counterclaims as amended illustrate Sucharski raised objections about various activities—such as the alleged demands to feign conformity with industry regulations and customer specifications with respect to the June 2022 Recertification Audit as well as the events surrounding the passivation tank at the Virginia site which purportedly lacked necessary safety measures—and otherwise expressly declined to acquiesce to other demands made by Nepola, and was reassigned and ultimately terminated shortly thereafter. (See, e.g., ECF No. 61 ¶¶ 1-2, 17, 24-27, 55, 91-92.) With the new explanation of Mladjenovic‘s activities and the clarification of “site managers” (id. ¶¶ 28, 35-37, 39, 42-43, 53-54; ECF No. 67 at 1, 22-23), the Second Amended Counterclaims, the allegations of which the Court is required to accept as true at this stage, allow the Court to
The Court is also not convinced by HHK‘s argument that the doctrine of judicial estoppel should prevent Defendants from amending their counterclaims as they did. The Third Circuit requires three elements to apply judicial estoppel: (1) “the party in question must have adopted irreconcilably inconsistent positions;” (2) “the party must have adopted these positions in ‘bad faith‘“; and (3) “there must be a showing that judicial estoppel is tailored to address the harm and that no lesser sanction would be sufficient.” Shire Lab‘ys, Inc. v. Corepharma, LLC, Civ. A. No. 06-2266, 2008 WL 4822186, at *4 (D.N.J. Nov. 3, 2008) (citing Chao v. Roy‘s Constr., Inc., 517 F.3d 180, 186 (3d Cir. 2008)). A court weighing these factors “must be mindful that judicial estoppel is an extraordinary remedy to be invoked only ‘when a party‘s inconsistent behavior will otherwise result in a miscarriage of justice.‘” Rivet v. Office Depot, Inc., Civ. A. No. 12-02992, 2015 WL 9308246, at *2 (D.N.J. Dec. 22, 2015) (quoting Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 365 (3d Cir. 1996) (internal citations omitted)). Here, the positions concerning Mladjenovic are not irreconcilably inconsistent because the change may easily be explained by Defendants learning new information that casts events in a new light. See, e.g., Lenox Corp. v. Robedee, Civ. A. No. 15-1654, 2016 WL 3032686, at *4 (D.N.J. May 26, 2016) (“It is entirely possible that an impression can change when new facts are learned.“). It is well worth keeping in mind that no discovery has yet taken place, so HHK and Defendants are both equipped with only the information and documents they have on hand, with much yet to be uncovered in the stages to come. Furthermore, even if the positions were inconsistent, the Court does not find bad faith in the mere fact that Defendants amended their counterclaims as that
Additionally, HHK‘s argument that Defendants’ consistent statements regarding Mladjenovic‘s alleged concerns and objections to Nepola‘s demands raised “in seven separate submissions to the Court, including a sworn Declaration from Sucharski” constitute binding judicial admissions is incorrect on the law. HHK‘s reliance on Berckeley Investment Group, Ltd. v. Colkitt is illustrative as it cites to a string of cases which all explain “judicial admissions” are “formal concessions in the pleadings, or stipulations by the party or its counsel,” and do not include factual allegations in claims or counterclaims which may be amended as of right or with leave. 455 F.3d 195, 211 n.20 (3d Cir. 2006) (citing Parilla v. IAP Worldwide Servs., VI, Inc., 368 F.3d 269, 275 (3d Cir. 2004) (quoting Keller v. United States, 58 F.3d 1194, 1198 n.8 (7th Cir. 1995)) (emphasis added)). Indeed, over half a century ago, the Third Circuit explained that amended pleadings are not judicial admissions. See Giannone v. U.S. Steel Corp., 238 F.2d 544, 547 (3d Cir. 1956) (“By the weight of authority even withdrawn or superseded pleadings are admissible“). Even assuming, arguendo, that the allegations in question constitute judicial admissions, such statements can be withdrawn by subsequent amendment, as was the case here. See Judon v. Travelers Prop. Cas. Co. of Am., 773 F.3d 495, 503 n.6 (3d Cir. 2014) (citing W. Run Student Hous. Assocs., 712 F.3d at 171 (“This
For these reasons, HHK‘s Motion to Dismiss is DENIED with respect to Defendants’ wrongful termination counterclaim.
B. Common Law Defamation and/or Trade Libel (Counterclaim II)
HHK asserts Defendants’ amended counterclaims for defamation and/or trade libel “plead no new facts” and must fail. (ECF No. 64 at 16.) It argues Defendants again fail to state a claim for defamation or trade libel because the allegedly defamatory and libelous statements made by HHK are “vague and non-specific” (id.), “relate[] solely to Sucharski, not Saje” (id. at 17), and are opinions or otherwise facially neutral (id. at 17-18). In their Second Amended Counterclaims and opposition brief, Defendants contend HHK engaged in defamation and/or trade libel through “three independent groups” of statements, one published on LinkedIn, a second in two Law360 articles, and a third communicated directly to aerospace customers. (ECF No. 67 at 27-37; see ECF No. 61 ¶¶ 112-116.)
“The law of defamation exists to achieve the proper balance between protecting reputation and protecting free speech.” DeAngelis v. Hill, 847 A.2d 1261, 1267 (N.J. 2004) (quoting Ward v. Zelikovsky, 643 A.2d 972, 978 (N.J. 1994)). It protects the right of people to “be free to enjoy their reputations without suffering false and defamatory attacks.” Okeke v. Anekwe, Dkt. No. A-3391-20, 2022 WL 2674944, at *5 (N.J. Super. Ct. App. Div. July 12, 2022). Indeed, a defendant can be found liable for defamation for publishing a false statement that harms another‘s reputation. Id. The tort of defamation requires plaintiffs to prove: “defendant[] made a false and defamatory statement concerning [the plaintiff]; (2) [] the statement was communicated to another person (and was not privileged); and (3) [] defendant[] acted negligently or with actual malice[,]” with
Mirroring those of defamation, the elements of trade libel—also known as product disparagement—in New Jersey are: “(1) publication; (2) with malice; (3) of false allegations concerning another‘s property, product, or business; and (4) special—i.e., pecuniary—damages.” Benecard Serv., Inc. v. Allied World Specialty Ins. Co., Civ. A. No. 15-8593, 2020 WL 2842151, at *13 (D.N.J. May 31, 2020) (quoting Albion Eng‘g Co. v. Hartford Fire Ins. Co., 779 F. App‘x 85, 88 (3d Cir. 2019)); see also Gillon, 218 F. Supp. 3d at 294. Unlike defamation, however, trade libel “is an offshoot of the cause of action for interference with contractual relations,” Gillon, 218 F. Supp. 3d at 295, and as such requires some proof showing “a material and substantial part in leading others not to deal with plaintiff.” Patel v. Soriano, 848 A.2d 803, 835 (N.J. Super. App. Div. 2004). A statement may satisfy the elements of both defamation and trade libel simultaneously. Gillon, 218 F. Supp. 3d at 296.
While the Second Amended Counterclaims identify four allegedly defamatory statements—the same four statements identified in the Amended Counterclaims which the Court has already found insufficient to support a defamation or trade libel claim in favor of Sucharski, much less for Saje (see ECF No. 55 at 31-35)—Defendants now argue in favor of reviewing the statements through the lens of the three groups identified. (ECF No. 67 at 27-37; see ECF No. 61 ¶¶ 112-116.) Given there are only two new sets of factual allegations before the Court (namely, the Law360 articles and some slightly more specific information regarding publication to third parties in the industry), the Court will address each in turn.
1. The March 24 and April 11, 2023 Law360 Articles
HHK asserts its statements to Law360—specifically, that the HHK representative “declined to comment aside from its filing” and the company “stands by the allegations in its Complaint“—are “absolutely privileged” as statements made within judicial proceedings. (ECF No. 64 at 16 (quoting Dairy Stores, 516 A.2d at 226).) Defendants dispute the statements are protected, arguing that while the litigation privilege protects otherwise defamatory statements made in complaints and other court filings, it “does not extend to or immunize a party for out-of-court statements repeating or republishing those falsehoods or directing third parties to them.” (ECF No. 67 at 35 (citing Dill v. Yellin, 725 F. Supp. 3d 471, 488 (D.N.J. 2024)).)
New Jersey law has long shielded “certain statements, such as those made in judicial, legislative, or administrative proceedings” with an absolute privilege from claims of defamation “because the need for unfettered expression is crucial to the public weal.” Dairy Stores, 516 A.2d at 226. Statements made by a party or her attorney to the media regarding the allegations of an
The Court finds the Law360 articles do not give rise to a defamation or trade libel claim. HHK‘s only comments to Law360 were effectively ‘no comment‘—in other words, the Second Amended Counterclaims allege HHK‘s representative made only two statements, one “declin[ing] to comment aside from its filing” and the second stating “[HHK] stands by the allegations in its Complaint.” (ECF No. 61 ¶¶ 85-86.) More importantly, Defendants list passages from the articles containing allegedly defamatory statements, but it appears the reporter gleaned them directly from the Complaint, not from the HHK representative. (Id.; see ECF No. 67 at 33-35.) There is no evidence HHK invited the press coverage in a way that “serves only the interest of the distributor in getting one side of the story out first or most vividly[,]” or otherwise affirmatively distributed or published a court filing, actions which would rightly forfeit the litigation privilege. Bender, 901 F. Supp. at 871 (quoting Citizens State Bank of N.J. v. Libertelli, 521 A.2d 867, 871 (N.J. Super. Ct. App. Div. 1987)). In fact, not only do Defendants fail to allege HHK acted with any malice, the Court also finds HHK‘s two “no-comment” comments were the appropriate ones to make in
Additionally, Defendants’ reliance on Bender highlights why the complained-of statements cannot sustain a defamation or trade libel claim. Id. at 871. Unlike in Bender, in which a plaintiff volunteered a copy of defamatory pleadings to a magazine reporter with the goal of engendering coverage of the legal claims, here, Law360 contacted HHK representatives, not the other way around, and HHK representatives gave no substantive comments besides resting on the publicly-available Complaint. (See ECF No. 61 ¶¶ 85-86.) Again, Defendants do not allege HHK sought the press coverage or otherwise intentionally “purposeful[ly] disseminat[ed]” the complained-of statements. Id. at 871.
2. Allegedly Defamatory Statements to Aerospace Customers
HHK argues Defendants’ allegations concerning defamatory statements made to “industry participants,” a “high-level aerospace individual” and a “top industry player” are insufficient to support a defamation and/or trade libel claim as they are “vague and non-specific.” (ECF No. 64 at 16 (quoting ECF No. 61 ¶¶ 87, 112).) Defendants contend they have included “sufficient details for Plaintiff to know who they are referring to.” (ECF No. 67 at 36.) They further note they expressly identify Boeing Global Services and Boeing Distribution Services, Inc. “as partners with whom Plaintiff has tortiously interfered.” (Id.)
To sufficiently state a claim for defamation, a plaintiff must allege, “with specific particularity,” that a defendant made a specific false, defamatory statement concerning plaintiff and communicated that statement to a specific third party. Kennedy v. Am. Airlines, Inc., 195 F. Supp. 3d 646, 655 (D.N.J. 2016); see Torrey v. New Jersey, Civ. A. No. 13-1192, 2014 WL 941308, at *20 (D.N.J. Mar. 11, 2014) (“Under New Jersey law, a plaintiff must sufficiently identify the
Here, the Court finds Defendants’ contention that allegedly defamatory statements were made to anonymous aerospace customers and without any information regarding the date, time, or circumstances of the alleged publication lacks the specificity and particularity required to survive dismissal. See Kennedy, 195 F. Supp. 3d at 655; Torrey, 2014 WL 941308, at *20; Foxtons, 2008 WL 465653, at *5; Bathgate, 27 F.3d at 875; Zoneraich, 514 A.2d at 62. The identification of “industry participants,” a “high-level aerospace individual” and a “top industry player” as third parties to whom the allegedly defamatory statements were publicized are woefully insufficient as the third parties remain practically unidentifiable and anonymous. (ECF No. 61 ¶¶ 87, 111.) Because the Second Amended Counterclaims provide no new facts in this regard, this Court‘s previous ruling that:
none of [the complained-of] statements can serve as the basis for either a defamation or trade libel claim because: (1) Defendants provide details only with regards to the LinkedIn Post and none of these statements appear within that post, either explicitly or
implicitly; and (2) the post refers only to Sucharski, not Saje, whereas Defendants specifically claim these statements defame Saje[,]
stands unchanged. (ECF No. 55 at 33-34.) Furthermore, Defendants’ identification of two Boeing-related companies does not save their defamation counterclaim because the identifications are made with respect to an unasserted counterclaim of tortious interference and otherwise lack any discernible context, such as the content of what was said, when, and to whom within either company. Moreover, Defendants’ argument they provided “sufficient details for Plaintiff to know who they are referring to” is speculative and no substitute for providing the Court with the required information. (ECF No. 67 at 36.)
For these reasons, HHK‘s motion to dismiss is GRANTED as to the defamation and/or trade libel counterclaim.
IV. CONCLUSION
For the reasons set forth above, and for good cause having been shown, HHK‘s Motion to Dismiss Defendants’ Second Amended Counterclaims (ECF No. 64) is GRANTED in part and DENIED in part. Specifically, HHK‘s Motion is GRANTED with respect to Defendants’ defamation and/or trade libel counterclaim and DENIED with respect to Defendants’ CEPA wrongful termination counterclaim.
Date: August 21, 2025
/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE