                                NOT FOR PUBLICATION WITHOUT THE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-4352-17T1

BETH LASCH,

          Plaintiff-Appellant,

v.

STUART KOPERWEIS and KBBC
KEYPORT BAYFRONT BUSINESS
COOPERATIVE,

     Defendants-Respondents.
_______________________________

                    Submitted March 25, 2019 – Decided May 31, 2019

                    Before Judges Haas and Mitterhoff.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Monmouth County, Docket No. L-3917-16.

                    Beth Lasch, appellant pro se.

                    Manna & Bonello, PA, attorneys for respondents (John
                    L. Bonello, on the brief).

PER CURIAM
      Plaintiff Beth Lasch appeals pro se from the trial court's April 13, 2018

order granting summary judgment to defendants Stuart Koperweis and the

Keyport Bayfront Business Cooperative ("KBBC") on her trade secret and

tortious interference with prospective business relationship claims. We affirm

substantially for the reasons set forth in the Honorable Mara E. Zazzali-Hogan,

J.S.C.'s well-reasoned oral decision. We add only the following comments.

                                      I.

      We derive the following facts from the record below. The Borough of

Keyport established a "special improvement district" ("SID") 1 with a "district

management corporation" ("DMC") 2, in accordance with N.J.S.A. 40:56-65 to

-89.3 By borough ordinance, Keyport designated a SID known as the "Business


1
  A SID is "an area within a municipality designated by municipal ordinance as
an area in which a special assessment on property within the district shall be
imposed for the purposes of promoting the economic and general welfare of the
district and the municipality." N.J.S.A. 40:56-66(b).
2
  A SID's DMC is "an entity created by municipal ordinance or incorporated
pursuant to Title 15A of the New Jersey Statutes and designated by municipal
ordinance to receive funds collected by a special assessment within a special
improvement district, as authorized by this amendatory and supplementary act."
N.J.S.A. 40:56-66(c).
3
   The purpose of the legislation is to "assist municipalities in promoting
economic growth and employment within business districts." N.J.S.A. 40:56-
65(b)(1).


                                                                       A-4352-17T1
                                      2
Improvement District" ("BID").4 Keyport's DMC is a non-profit corporation

known as the Keyport Business Alliance, Inc. (also known as the Keyport

Bayfront Business Cooperative). Defendant Koperweis served as the Executive

Director of the KBBC.

      Plaintiff is a resident of Keyport, New Jersey, but she does not have a

business located in Keyport's BID.      Plaintiff's business includes producing

commercial advertisements on cable television and on YouTube. She operates

several municipality-oriented YouTube channels, and she solicits business

owners in those municipalities.

      On April 17, 2015, plaintiff sent an email to the KBBC in which she

referenced "a meeting last fall where I presented the idea of running local TV

commercials promoting Keyport." She indicated that "[a]ttached[] is a proposal

to review with more details about airing in Monmouth County on cable TV."

The email did not indicate that the proposal or email should remain confidential.

Plaintiff never subsequently informed defendants that the email or proposal

should remain confidential.




4
  Keyport, NJ, Mun. Code (1988),
http://www.keyportonline.com/filestorage/4135/5720/5882/5888/BOROUGH_
OF_KEYPORT_ORDINANCES.pdf.
                                                                         A-4352-17T1
                                       3
      Plaintiff's proposal included two "projects." Project #1 called for "8

commercials for Keyport to air on cable TV in Monmouth and Middlesex

counties, running on major TV channels . . . [and to] run the ads in the cable

TV's digital opportunities . . . , for those who look for local news online." Project

#2 called for one thirty-second "commercial for the Spring activities coming

up." The ad would run on cable TV in Monmouth and Middlesex counties and

"in the cable TV's digital opportunities."

      In May 2015, after plaintiff submitted the proposal, she spoke to defendant

Koperweis, who informed her that there was no video budget. Plaintiff did not

bid on a project involving defendants.

      In or about June 2016, plaintiff discovered that a YouTube channel titled

"Visit Keyport" had been created and videos had been uploaded. A company

known as "Direct Development," which trades a "Market Me," and which was

hired to do video production work for defendants, created the page and uploaded

the videos. The "Visit Keyport" YouTube channel did not include the same

advertisements that were provided for in plaintiff's proposal. The KBBC also

did not air commercials on cable TV in Monmouth or Middlesex counties, nor

on major TV channels.




                                                                             A-4352-17T1
                                         4
      Plaintiff filed the instant action against defendants Stuart Koperweis and

the KBBC alleging that defendants appropriated her trade secret by creating a

YouTube channel and utilizing the proposal that she provided without paying

for its use. As part of plaintiff's lawsuit, she claimed $55,000 in damages, which

is not supported by any documentary evidence in the record.

      At oral argument on defendants' motion for summary judgment, plaintiff

conceded that the KBBC was producing videos prior to the creation of their

YouTube channel, but contended that they were of a lower quality and they did

not promote businesses. Plaintiff further conceded that defendants did not

produce the eight videos that she included in her proposal, but she contended

that they produced a video advertisement for a garden walk, which was included

in her proposal, and a radio advertisement for the township's Memo rial Day

parade.

      In an oral decision, the trial court granted summary judgment to

defendants. The trial found that plaintiff's proposal was not a trade secret

because there was no indication that she attempted to keep the infor mation

confidential.

      Regarding the tortious interference claims, the trial court further found

that giving plaintiff the benefit of every inference in her favor, her YouTu be


                                                                          A-4352-17T1
                                        5
channel ideas gave her "a reasonable expectation of economic advantage"

because her business is primarily producing videos for businesses. Nonetheless,

the court granted summary judgment based on its finding that defendants did not

act unlawfully, maliciously, or unjustly toward plaintiff and that plaintiff did not

provide any support for her claim of damages. The instant appeal followed.

                                          II.

      On appeal, plaintiff argues that the trial court erred by not reopening

discovery, despite her failure to make a motion for same. We disagree.

      Generally, "issues not raised below will . . . not be considered on appeal

unless they are jurisdictional in nature or substantially implicate the public

interest." N.J. Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 339

(2010). However, "appellate court[s] may, in the interests of justice, notice plain

error not brought to the attention of the trial or appellate court[,]" if "it is of such

a nature as to have been clearly capable of producing an unjust result[.]" R.

2:10-2.

      Here, we decline to reach the merits of plaintiff's argument that the trial

court should have reopened discovery. See M.C. III, 201 N.J. at 339; R. 2:10-2.

Discovery in the instant matter ended on October 1, 2017 and oral argument




                                                                                A-4352-17T1
                                           6
took place on April 13, 2018.       Plaintiff did not make a motion to extend

discovery at any point between the discovery end date and oral argument.

      Plaintiff argues that, being a pro se party, she was not aware of all of the

intricacies of discovery. However, the trial court relaxed the rules for plaintiff

on several occasions, including considering her opposition to defendants' motion

for summary judgment despite its procedural deficiencies. Further, the first time

she suggested reopening discovery was during the summary judgment oral

argument. See, e.g., A.T. v. Cohen, 445 N.J. Super. 300, 305 n.7 (App. Div.

2016) (refusing to address the merits of the plaintiff's argument where "it was

not properly raised to the trial judge").

                                        III.

      Although plaintiff's sole argument on appeal was that the trial court erred

by not reopening discovery, for the purposes of completeness we will address

her claims on the merits. We conclude that the trial court correctly granted

summary judgment to defendants on the trade secret and tortious interference

claims.

      The standard of review for a grant of summary judgment is de novo.

Conley v. Guerrero, 228 N.J. 339, 346 (2017) (citing Templo Fuente De Vida

Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)).


                                                                          A-4352-17T1
                                            7
            [W]hen deciding a motion for summary judgment under
            Rule 4:46–2, the determination whether there exists a
            genuine issue with respect to a material fact challenged
            requires the motion judge to consider whether the
            competent evidential materials presented, when viewed
            in the light most favorable to the non-moving party in
            consideration of the applicable evidentiary standard,
            are sufficient to permit a rational factfinder to resolve
            the alleged disputed issue in favor of the non-moving
            party.

            [Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,
            523 (1995).]

New Jersey Trade Secrets Act

      "In any trade secret case, the Court must first determine whether there

exists, in fact, a trade secret." Baxter Healthcare Corp. v. HQ Specialty Pharma

Corp., 157 F. Supp. 3d 407, 424 (D.N.J. 2016) (citing Merckle GmbH v. Johnson

& Johnson, 961 F. Supp. 721 (D.N.J. 1997)). Prior to adopting the New Jersey

Trade Secrets Act, N.J.S.A. 56:15-1 to -9 (the "Act"), trade secret claims were

decided under common law.           The Act "supercede[s] conflicting tort,

restitutionary, and other law of this State providing civil remedies for

misappropriation of a trade secret." N.J.S.A. 56:15-9(b). Under the Act, a

            "[t]rade secret" means information, held by one or more
            people, without regard to form, including a formula,
            pattern, business data compilation, program, device,
            method, technique, design, diagram, drawing,
            invention, plan, procedure, prototype or process, that:
            (1) Derives independent economic value, actual or

                                                                        A-4352-17T1
                                       8
              potential, from not being generally known to, and not
              being readily ascertainable by proper means by, other
              persons who can obtain economic value from its
              disclosure or use; and (2) Is the subject of efforts that
              are reasonable under the circumstances to maintain its
              secrecy.

              [N.J.S.A. 56:15-2.]

"The subject matter of a particular trade secret . . . must be secret. In other

words, '[m]atters of public knowledge' or information 'completely disclosed by

[marketed] goods' cannot qualify as trade secrets." Baxter Healthcare, 157 F.

Supp. 3d at 424 (citations omitted) (alterations in original) (internal quotations

omitted).

      Here, plaintiff's proposal does not meet the statutory definition of trade

secret.     See N.J.S.A. 56:15-2.    Initially, plaintiff's proposal provided for

advertisements that would be uploaded to plaintiff's Keyport YouTube channel

and aired on cable television. However, as YouTube dominates the internet in

terms of video-sharing and video-hosting, plaintiff's concepts for both video

advertising and a Keyport YouTube channel were clearly "readily ascertainable

by proper means." See ibid.5


5
   See Jay E. Grenig & William C. Gleisner, III, The Impact of Social
Networking on e-Discovery, 1 eDiscovery & Digital Evidence § 14:4 (Oct.
2018) (footnote omitted) ("YouTube is a social networking system built around


                                                                          A-4352-17T1
                                         9
      Moreover, even if plaintiff could satisfy the first prong of the test, she did

not establish that her proposal was "the subject of efforts that are reasonable

under the circumstances to maintain its secrecy." See N.J.S.A. 56:15-2. There

is no indication or marking on either the email plaintiff sent to defendants or the

attached proposal that the contents or communication should remain

confidential. Further, as plaintiff voluntarily provided a copy of the proposal to

defendants, voluntarily explained her ideas, and did not indicate that the

proposal should remain confidential, plaintiff's proposal does not qualify as a

trade secret. See ibid.

Common Law Trade Secret

      Under New Jersey's common law, "[a] trade secret may consist of any

formula, pattern, device or compilation of information which is used in one's

business, and which gives him an opportunity to obtain an advantage over

competitors who do not know or use it." Hammock v. Hoffman-LaRoche, Inc.,

142 N.J. 356, 384 (1995) (quoting Smith v. BIC Corp., 869 F.2d 194, 199 (3d




videotapes uploaded from users and often accompanied by a comments section
in the nature of a blog. . . . YouTube makes the dissemination of personal and
potentially embarrassing videotape information very easy for the most novice
computer user. With its simple interface, YouTube makes it possible for anyone
with an Internet connection to post a video.")


                                                                            A-4352-17T1
                                       10
Cir. 1989)). "[I]nformation that is in the public domain . . . cannot be protected

as trade secrets." Ibid.

      "[T]he definition of trade secret does not include a marketing concept or

a new product idea." Johnson v. Benjamin Moore & Co., 347 N.J. Super. 71, 96

(App. Div. 2001) (citing Hudson Hotels Corp. v. Choice Hotels Int'l, 995 F.2d

1173 (2d Cir. 1993)). In Johnson, the plaintiff met with one of the defendant's

employees about an idea for a new product that the plaintiff wanted to submit.

Id. at 78-79. The defendant's employee suggested that the plaintiff put his

proposal in writing, and the plaintiff complied. Id. at 79. According to the

plaintiff, the defendant's employee called and informed that he was going to

present the proposal to his superiors. Ibid.

      The proposal was for a "Mural in a Can[,]" a step-by-step, do-it-yourself

art project. Ibid. The first page of the proposal included the following written

statement, which both parties signed:

            I UNDERSTAND IT IS YOUR PRACTICE TO
            ENTERTAIN      OR   RECEIVE   IDEAS    OR
            SUGGESTIONS FOR THE MERCHANDISING OF
            BENJAMIN MOORE PAINT PRODUCTS. I HAVE
            DEVELOPED SUCH AN IDEA AND PRODUCT FOR
            SUBMISSION AND WOULD LIKE TO DISCLOSE
            IT TO YOU. I UNDERSTAND THAT IF YOU USE IT
            YOU WILL PAY ME A REASONABLE
            COMPENSATION      BASED    ON    CURRENT
            INDUSTRY STANDARDS.

                                                                          A-4352-17T1
                                        11
            PLEASE ACKNOWLEDGE THE RECEIPT OF THIS
            LETTER WITH YOUR DATED SIGNATURE
            BELOW.

            [Ibid.]

The plaintiff also provided the defendant with a disclaimer that provided for an

initial fee of $500,000 and a royalty fee of $25,000 annually, if the defendant

utilized the plaintiff's "Mural in a Can" product proposal.       Id. at 80. The

defendant stated that he never saw the disclaimer, while the plaintiff states that

it was included with his submitted proposal. Ibid.

      The defendant subsequently worked with Crayola on the implementation

of the Crayola Paints program, which included the "umbrella concept" of "a line

of paint and related decorating products positioned for parents who want to

create fun and imaginative environments for, and with, their children." Id. at

80-81.

      When the plaintiff saw an advertisement for "Crayola Paints," he sued the

defendant and alleged, among other things, that the defendant misappropriated

trade secrets by developing a product for which the plaintiff had submitted a

proposal. Id. at 77, 81. The trial court granted summary judgment to the

defendant on all of the plaintiff's claims. Id. at 75. We affirmed and held that




                                                                          A-4352-17T1
                                       12
the "[p]laintiff's idea for Mural in a Can and his broad concept of marketing

materials for murals for the masses are not trade secrets." Id. at 96.

      Here, plaintiff's trade secret claim is clearly weaker than the plaintiff's in

Johnson. Here, unlike in Johnson, plaintiff did not take steps to protect her

proposal. See id. at 79-80. As in Johnson, plaintiff voluntarily provided her

proposal and information about her services to defendants.          See id. at 79.

However, unlike the plaintiff in Johnson, she did not take any steps to protect

her proposal. See ibid. For instance, she did not include a provision for initial

or royalty payments in the event her proposal was implemented, nor did she

include an acknowledged signed receipt. See ibid. Thus, we conclude that the

trial court correctly rejected plaintiff's trade secret claim under the common law

doctrine.

Common Law "Use-of-Idea"

                   [W]here a person communicates a novel
                   idea to another with the intention that the
                   latter may use the idea and compensate him
                   for such use, the other party is liable for
                   such use and must pay compensation if he
                   actually appropriates the idea and employs
                   it in connection with his own activities.

            [Id. at 84 (quoting Flemming v. Ronson Corp., 107 N.J.
            Super. 311, 317 (L. Div. 1969), aff'd, 114 N.J. Super.
            221 (App. Div. 1971)).]


                                                                            A-4352-17T1
                                       13
      To state a claim for "use of idea" the party must "establish as a perquisite

to relief that (1) the idea was novel; (2) it was made in confidence, and (3) it

was adopted and made use of." Ibid. In Johnson, we held that the trial court

correctly granted summary judgment to the defendant's on the plaintiff's "use of

idea" claim because his "Mural in a Can" proposal was not "novel." Id. at 85.

      Additionally, YouTube is "recognized by experts as the clear leader in the

[social media] industry." Ibid. See also Franklin Graves & Michael Lee, The

Law of YouTubers, 9 No. 5 Landslide 8, 9 (2017) ("It's undeniable that, by

generating billions of daily views and hundreds of millions of hours in watch

time over the course of a single day, YouTube is the go-to destination for video

consumption on the internet.") (footnotes omitted).

      In the instant matter, we conclude that plaintiff cannot establish a claim

for common law "use of idea." First, plaintiff's proposal was not novel. See id.

at 84. Advertising, generally, is very common on all platforms. Specifically, as

YouTube is the most used social media platform, creating video advertisements

for a channel dedicated to a township and using YouTube as the means to

disseminate the advertisements is not novel.      See Graves & Lee, 9 No. 5

Landslide at 9.




                                                                          A-4352-17T1
                                      14
      Second, even if plaintiff's proposal was novel, as stated above, they were

not made in confidence. See Johnson, 347 N.J. Super. at 84.

      Lastly, plaintiff has not established that defendants made use of her

proposal. See ibid. Plaintiff submitted a proposal that included ideas for eight

commercials that would be uploaded to plaintiff's Keyport YouTube channel and

would also air on cable television. Defendants created one video Spring-themed

commercial and one radio commercial about Keyport's Memorial Day Parade.

None of plaintiff's other ideas or concepts from her written proposal were

created. Thus, defendants did not make use of her proposal and plaintiff cannot

state a claim for "use of idea." See ibid.

Tortious Interference

      In an action for tortious interference with a prospective business

relationship, a plaintiff is required to prove that:

                   (1) [she] had some reasonable expectation
                   of economic advantage; (2) the defendants'
                   actions were malicious in the sense that the
                   harm was inflicted intentionally and
                   without justification or excuse; (3) the
                   interference caused the loss of the
                   prospective gain or there was a reasonable
                   probability that the plaintiff would have
                   obtained the anticipated economic benefit,
                   and (4) the injury caused the plaintiff
                   damage.


                                                                        A-4352-17T1
                                        15
              [Singer v. Beach Trading Co., Inc., 379 N.J. Super. 63,
              81 (App. Div. 2005) (quoting Mandel v.
              UBS/PaineWebber, Inc., 373 N.J. Super. 55, 79-80
              (App. Div. 2004)) (alteration in original).]

      In determining whether a party acted with malice,

              the ultimate inquiry is whether the conduct was "both
              injurious and transgressive of generally accepted
              standards of common morality or of law." In other
              words, was the interference by defendant "sanctioned
              by the rules of the game." There can be no tighter test
              of liability in this area than that of the common
              conception of what is right and just dealing under the
              circumstances.

              [Printing Mart-Morristown v. Sharp Elec. Corp., 116
              N.J. 739, 757 (1989) (quoting Sustick v. Slatina, 48 N.J.
              Super. 134, 144 (App. Div. 1957)).]

      Here, the trial court did not err by granting summary judgment to

defendants on plaintiff's tortious interference claim. Initially, granting plaintiff

every inference in her favor, she established that she had "some reasonable

expectation of economic advantage." Singer, 379 N.J. Super. at 81. At oral

argument she stated that she was hired to make videos for at least two local

businesses and that she primarily gets her business by soliciting the businesses

personally.

      However, plaintiff cannot establish any of the other elements of tortious

interference. As the trial court found, defendants did not act "malicious[ly] in


                                                                            A-4352-17T1
                                        16
the sense that the harm was inflicted intentionally and without justification or

excuse." Ibid. Even accepting plaintiff's allegation that defendants utilized her

proposal when they created a YouTube channel and uploaded videos of the town,

they were not legally prohibited from doing so. Plaintiff sent defendants an

unsolicited, non-proprietary proposal for a basic advertising idea. In the absence

of wrongdoing, utilizing those ideas in their own marketing scheme is not

"transgressive of generally accepted standards of common morality or of law"

or a violation of "the common conception of what is right and just dealing under

the circumstances." See ibid.

      Additionally, there was no "reasonable probability that . . . plaintiff would

have obtained the anticipated economic benefit" in the absence of defendant

KBBC creating video advertisements for the local businesses.             See ibid.

Although plaintiff stated that she worked with local businesses in the past, she

came forth with no additional evidence to suggest that the forty-one businesses

she solicited would have agreed to work with her in the absence of defendant

KBBC's making video advertisements free of charge.

      Lastly, plaintiff has not proven damages. "Anticipated profits that are too

remote, uncertain, or speculative are not recoverable." Desai v. Bd. of Adj. of

Phillipsburg, 360 N.J. Super. 586, 595 (App. Div. 2003), certif. denied, 177 N.J.


                                                                           A-4352-17T1
                                       17
492 (2003) (citing Stanley Co. of Am. v. Hercules Powder Co., 16 N.J. 295, 314

(1954)). Plaintiff claims $55,000 in damages, primarily based on the contract

between defendant KBBC and Direct Development. However, she provided no

expert or lay testimony regarding how much money she would have received if

she contracted with defendants. She also did not provide any prior contracts or

receipts to substantiate her damages. Thus, her claim for damages is speculative

and uncertain, and the trial court did not err in granting summary judgment to

defendants on plaintiff's tortious interference claim. See ibid.

      To the extent we have not specifically addressed any of plaintiff's

remaining arguments, we find them without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




                                                                        A-4352-17T1
                                       18
