ALAN MARCUS v. DENNIS MCNERNEY

NOT FOR PUBLICATION WITHOUT THE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




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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

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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.



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