                 NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-5214-14T4

PETRO-LUBRICANT TESTING
LABORATORIES, INC., and
JOHN WINTERMUTE,
                                    APPROVED FOR PUBLICATION
     Plaintiffs-Appellants/
     Cross-Respondents,                October 19, 2016

                                       APPELLATE DIVISION
v.

ASHER ADELMAN, d/b/a
eBossWatch.com,

     Defendant-Respondent/
     Cross-Appellant.
_______________________________

         Argued September 19, 2016 – Decided October 19, 2016

         Before Judges Sabatino, Haas, and Currier.

         On appeal from the Superior Court of New
         Jersey, Law Division, Sussex County, Docket
         No. L-0406-12.

         Mark G. Clark (Traverse Legal) of the
         Michigan bar, admitted pro hac vice, argued
         the cause for appellants/cross-respondents
         (Trimboli & Prusinowski, LLC, and Mr. Clark,
         attorneys; James Prusinowski, of counsel;
         Mr. Clark, Mr. Prusinowski, Jinkal Pujara,
         and John P. Harrington, on the briefs).

         Garen   Meguerian   argued  the    cause    for
         respondent/cross-appellant.

         Eugene Volokh (First Amendment Clinic) of
         the California bar, admitted pro hac vice,
         argued the cause for amicus curiae Reporters
         Committee for Freedom of the Press (Hartman
          & Winnicki, P.C., and Mr. Volokh, attorneys;
          Mr. Volokh and Daniel L. Schmutter, on the
          brief).

      The opinion of the court was delivered by

CURRIER, J.A.D.

      In this defamation case, we are asked to decide whether a

second posting of an article on a website with minor changes

from the original posting was sufficient to categorize it as a

separate publication, and therefore subject to a new statute of

limitations. We find the minor changes between the two articles

to be immaterial and not sufficient to render them two separate

publications. In addition, to the extent that any of the changes

could be regarded as material, on the whole they lessened the

"sting" of the publication.        Therefore, the single publication

rule is applicable and the complaint was properly dismissed as

untimely under the one-year statute of limitations.

      We also uphold the dismissal of defendant's counterclaim,

rejecting the novel theory that defendant has standing as a

publisher to assert a claim of retaliation under the New Jersey

Law Against Discrimination (NJLAD).

      The website eBossWatch.com was created by defendant Asher

Adelman for people to rate their employers and bosses so that

job   seekers     might   search   workplaces   and   "access    inside

information about what it's really like to work there."            After




                                    2                           A-5214-14T4
viewing an article on the Courthouse News Service1 that detailed

allegations      of     gender    discrimination          and    a    hostile     workplace

environment        in    a   complaint         filed     by     an    employee        against

plaintiffs Petro-Lubricant Testing Laboratories, Inc. (PTL) and

John Wintermute, defendant published an article on his website

reporting on the same complaint.

       The    article,       entitled          "'Bizarre'           and     Hostile      Work

Environment Leads to Lawsuit," was posted on August 3, 2010.                                 It

repeated     the      allegations          contained     in     the       complaint      which

described     Wintermute         as    a     "violent    bully,       a    racist,     and    a

womanizer     who       regularly          brought      guns    to        the   workplace."

Allegations of Wintermute's explosive temper, his sexual affairs

with    female     employees,          and    his    retaliation           by   firing     the

employee when she refused to lie for the company in another

employment-related lawsuit were also described.

       In    2010,      defendant          also     posted      a     webpage      entitled

"America's Worst Bosses 2010," a list that ranked bosses and

named their employers.                Wintermute was named in the list and a

hyperlink led to the eBossWatch article.




1
  Courthouse News Service is an Internet-based news service that
publishes original content, focusing on civil litigation
nationwide.




                                               3                                     A-5214-14T4
      In December 2011, an attorney representing plaintiffs wrote

to defendant stating:

           It has recently come to our attention that
           you have published false and defamatory
           statements concerning our client in an
           article.   This letter serves as your final
           notice to remove this article from your
           website or face liability under New Jersey
           law for defamation, defamation per se, and
           false light invasion of privacy.


The   letter   advised   that   defendant   "may   be   held   liable   for

significant monetary damages," and demanded defendant remove the

article, related links, and metatags.

      The letter stated that the employee "was fired from Petro-

Lubricant for reasons unrelated to anything contained in her

complaint" and that her "retaliatory lawsuit containing these

baseless allegations" had been settled.

      Defendant   responded     to   plaintiffs'    counsel     that    the

"article is clearly a reporting of the complaint that was filed

by [the employee] against [plaintiffs]. [O]ur article contains

only factual statements about the abovementioned complaint and

its allegations."        Defendant stated further that "to make it

even more clear that our article is a factual reporting of the

[employee's] complaint, we have made some minor changes to the

wording and to the article's title."        The email provided counsel

with a link to the updated article published in December 2011.




                                     4                            A-5214-14T4
The article was also linked to the "America's Worst Bosses 2010"

list.

      A    reading     of     the   December    2011     article      reveals    that

defendant changed the title to "Hostile Work Environment Lawsuit

Filed Against Petro-Lubricant Testing Laboratories."                        He also

removed a picture of the laboratory which had accompanied the

first     article.          Although    there    was    some    rewording   in    the

paragraphs, the content reported and the construction of the

article remained the same.

        In reporting the employee's claims, the earlier article

stated: "[Wintermute] also allegedly forced workers to listen to

and   read    white    supremacist      materials."          The   second   posting

deleted that wording and stated: "John Wintermute also allegedly

regularly     subjected       his   employees     to     'anti-religion,        anti-

minority, anti-Jewish, anti-catholic, anti-gay rants.'"

      In     June     2012,    plaintiffs       filed    a     complaint    against

defendant     alleging        defamation,      false    light      publicity,     and

intentional infliction of emotional distress as a result of the

false and defamatory statements contained in the August 2010

eBossWatch article and the "America's Worst Bosses 2010" list.

The     complaint     was     amended    in     September      2012    to   include

defamation claims arising from the December 2011 posting.




                                          5                                 A-5214-14T4
       In lieu of filing an answer, defendant moved for summary

judgment.       Noting the one-year statute of limitations for a

libel   or    slander    action,     N.J.S.A.        2A:14-3,    the    motion    judge

found the August 2010 article and the December 2010 publication

of   the     worst    bosses   list   to       be    time-barred.         He   further

concluded in his opinion and order of December 10, 2012 that

issues of fact prevented the grant of summary judgment regarding

the December 2011 re-posted article.

       At the close of discovery both parties presented summary

judgment motions.        Defendant also moved to amend his answer and

add a counterclaim for retaliation under the NJLAD, N.J.S.A.

10:5-12(d),      as     well   as     a    motion       seeking     sanctions        for

plaintiffs' alleged discovery violations.

       Following oral argument on May 21, 2015, the second motion

judge2 rendered an oral decision, with only a brief reference to

the statute of limitations argument posited by defendant.                             He

stated: "I'm satisfied that the Single Publication rule does not

apply to the December 2011 article as that rule applies to a

mass    distribution      of   the    same          material."         Therefore,     he

concluded the statute of limitations on the second article had

not expired. Summary judgment, however, was granted to defendant


2
  A different judge presided over the second summary judgment
applications.



                                           6                                   A-5214-14T4
on other grounds as the judge found the article was a "full,

fair and accurate account of the [employee's complaint]" and

therefore privileged as plaintiffs had failed to prove it had

been published with actual malice.             On the same date, the judge

issued a written statement of reasons granting summary judgment

to     defendant     and    denying      summary   judgment      to    plaintiffs.

Although    the     judge   granted      defendant's    motion    to    amend     the

answer with a counterclaim, he denied the counterclaim as moot

and denied defendant's sanction request.

        On appeal, plaintiffs argue that the December 2011 article

is "a separate and distinct publication from the August 2010

post" and therefore, the complaint was timely filed within the

one-year statute of limitations.              Plaintiffs contend the single

publication rule does not apply to the second posting as the

December    2011     article     contained    significant     changes       in    its

content, substance, and form from the earlier post.                     Plaintiffs

also    argue      that    the   judge    erred    in   deeming       the   article

privileged.       In his cross-appeal, defendant contends the judge's

dismissal of his retaliation counterclaim and discovery sanction

motion was error.

       Amicus curiae, the Reporters Committee for Freedom of the

Press, asserts that the "minor changes" made in the December

2011 article did not broaden any of the claims or allegations




                                          7                                 A-5214-14T4
set forth in the original posting, and therefore, under the

single      publication         rule,     the     one-year       statute    of    limitations

applied and had expired prior to the filing of the complaint.

       We    review       a     grant     of    summary     judgment       under     the     same

standard as the motion judge.                         Rowe v. Mazel Thirty, LLC, 209

N.J. 35, 41 (2012).                 We must determine whether there are any

genuine issues of material fact when the evidence is viewed in

the light most favorable to the non-moving party.                                  Id. at 38,

41.    "The inquiry is whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided         that    one     party    must       prevail    as   a    matter       of   law."

Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J.

436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of

Am.,       142    N.J.     520,     536        (1995))    (internal        quotation         marks

omitted).          "[T]he       legal     conclusions       undergirding          the    summary

judgment         motion    itself       [are     reviewed]       on   a   plenary       de    novo

basis," Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202

N.J.       369,     385       (2010);     including        whether        the     statute       of

limitations applies, Churchill v. State, 378 N.J. Super.                                      471,

478 (App. Div. 2005).

       The single publication rule was applied traditionally to

"mass publications under which a plaintiff alleging defamation

has    a    single        cause    of     action,        which    arises     at     the      first




                                                  8                                      A-5214-14T4
publication of an alleged libel, regardless of the number of

copies of the publication distributed or sold."           Ibid.

      In Churchill, we addressed the application of the single

publication   rule   to     an   Internet   publication   of   a   document.

Concluding that the "Internet appears to be particularly suited

to application of the single publication rule," we found no

basis to treat the Internet differently than other forms of mass

media, and held the single publication rule applied to Internet

publications.     Id. at 483.

      The plaintiffs in Churchill also argued that the updates

made to the website constituted republications of the allegedly

defamatory report, thus triggering a new statute of limitations

upon each update.         Id. at 477.        We rejected that argument,

finding that the updates "were merely technical changes to the

website.      . . . [T]hey in no way altered the substance or form

of the report."      Id. at 483.      We concluded that "to treat the

changes as republications would be inappropriate and defeat the

beneficial purposes of the single publication rule."                 Id. at

483-84.

      Mindful of that benchmark, we turn to an analysis of the

two   articles.      Both    posts   are    constructed   similarly,    each

containing six paragraphs.           As noted earlier, the title was

changed between posts but the subject matter remained the same;




                                      9                             A-5214-14T4
both   articles       report    on    a     hostile      work    environment     lawsuit.

Although   the    wording       used        in    the    first    two    paragraphs     is

slightly different, the substance remains the same.                           The fourth,

fifth, and sixth paragraphs are unchanged.

       We look then at the third paragraph in the articles.                            The

August post reads:

           [The employee] claims that John Wintermute
           is a violent bully, a racist, and a
           womanizer who regularly brought guns to the
           workplace and target practiced, hunted and
           gutted birds, which he then fed to his guard
           dogs,   on  company   property.    He   also
           allegedly forced workers to listen to and
           read white supremacist materials, drank
           alcohol regularly throughout the workday,
           and was a violent, raging drunk.

       The third paragraph of the December 2011 article states:

           [the employee] claims that John Wintermute
           is a "dangerous and violent alcoholic" who
           allegedly regularly brought guns to the
           workplace and target practiced, hunted and
           gutted birds, which he then fed to his dogs,
           on company property.    John Wintermute also
           allegedly regularly subjected his employees
           to   "anti-religion,   anti-minority,   anti-
           Jewish, anti-catholic, anti-gay rants."

       The only substantive difference in the actual text of these

articles   is    the     elimination         of    the    reference      to    Wintermute

requiring his employees to listen to and read white supremacist

materials;      the     later        post     instead      quotes       the    employee's

allegations that Wintermute subjected his employees to "anti-




                                             10                                  A-5214-14T4
religion, anti-minority, anti-Jewish, anti-catholic and anti-gay

rants."

    Communications posted on websites are viewed on a far wider

scale than traditional mass media.                  Web postings are available

for an indefinite period of time.                  If immaterial changes to an

Internet post were to result in a retriggering of the statute of

limitations        on       each    occasion,   the     legislative      purpose    of

favoring a short statute of limitations for defamation would be

defeated. Therefore, the statute of limitations will only be

triggered if a modification to an Internet post materially and

substantially alters the content and substance of the article.

    We note that the modifications in the second posting were

intended by defendant to diminish the defamatory sting of the

previously reported allegations after his receipt of plaintiffs'

counsel's antagonistic correspondence.                    We find it a logical

extension     of    our       decision    today    to    also   conclude     that    a

softening of prior material in a subsequent posting should not

result in the commencement of a new statute of limitations.

Therefore,    if        a   minor   modification      diminishes   the    defamatory

sting of an article, it should not trigger a new statute of

limitations.

    We reject the argument that the second post was altered in

substance or form from the earlier posting as the differences




                                           11                               A-5214-14T4
between the articles are immaterial.                         The allegedly defamatory

information is the same in both articles.                               Paragraph three of

the   second    posting       was       minimally         altered       to    quote      specific

phrases     contained         in        the     complaint.               The       disseminated

information stayed constant.

      Therefore, we find the December                        2011 article was not a

republication     and    instead          falls      under       the    single      publication

rule.     The one-year statute of limitations commenced with the

posting of the original article in August 2010; therefore, the

complaint      filed    in     June           2012   is    barred        as       untimely     and

defendants were entitled to summary judgment and a dismissal of

plaintiffs'     claims.            As    a     result,      we    do     not      consider     the

remainder of plaintiffs' contentions.

      We turn to defendant's cross-appeal.                             Defendant sought to

assert a counterclaim on the grounds of retaliation under NJLAD,

N.J.S.A.    10:5-12(d).3                The    facts      presented          in    the    summary

judgment    record      are    not        sufficient         to        accord      standing     to

defendant      under    the    statute.              There        were       no    proofs     that

defendant had any relationship with the aggrieved employee or

that he aided or encouraged her in asserting her rights in her


3
  "It shall be an unlawful employment practice . . . [f]or any
person to take reprisals against any person because that person
has . . . aided or encouraged any other person in the exercise
or enjoyment of, any right granted or protected by this act."



                                                12                                       A-5214-14T4
NJLAD claim so as to confer him standing under the statute.                   See

Craig v. Suburban Cablevision Inc., 140 N.J. 623, 630 (1995).

      Moreover,     defendant     may   be    granted      certain   rights   and

protections under the First Amendment and the common law as a

result   of   his    claimed     status      as    a    journalist   objectively

reporting on employment litigation.               He would not be entitled to

those same safeguards if he were to be considered an advocate

for the rights of the employee under the NJLAD.                      Although we

disagree with the judge's determination that mootness required

the   dismissal     of   the   counterclaim,       we   nevertheless   find   the

dismissal to have been properly entered, as defendant lacked

standing to assert the claim.                See Isko v. Planning Bd. of

Livingston, 51 N.J. 162, 175 (1968) ("[I]f the order of the

lower tribunal is valid, the fact that it was predicated upon an

incorrect basis will not stand in the way of its affirmance.").

      Finally, we find the judge did not abuse his discretion in

denying defendant sanctions for alleged discovery abuses.

      Affirmed.




                                        13                              A-5214-14T4
