HO-HO-KUS, INC. v. SUCHARSKI

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

HO-HO-KUS, INC.,

Plaintiff,

Case No. 2:23-cv-01677 (BRM) (JSA)

v.

OPINION

STEVEN SUCHARSKI, JANEEN

SUCHARSKI, and SAJE AEROSPACE,

INC.,

Defendants.

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 Federal Rule

of Civil Procedure 12(b)(6) (ECF No. 64). Defendants filed an opposition to the Motion (ECF No.

67), and HHK filed a reply (ECF No. 68). Having reviewed and considered the submissions filed

in connection with the Motion and having declined to hold oral argument pursuant to Federal Rule

of Civil Procedure 78(b), for the reasons set forth below 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.

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

“document integral to or explicitly relied upon in the complaint.” In re Burlington Coat Factory

Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

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

allegedly unlawful and deceptive practices mandates by Nepola. (Id. ¶ 17.) Nepola allegedly

disregarded laws, standards, the regulatory regime, and certain requirements needed to engage

lawfully and safely in the industry, and instead cut corners and shifted responsibility to others

within HHK, which Sucharski and other employees witnessed. (Id.)

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

concern” to Sucharski regarding Nepola’s requested course of action and promised to alert relevant

authorities if Nepola continued to pressure employees to engage in questionable reporting and

conduct during internal and external audits related to critical topics like “calibration, special

process compliance, and production traceability.” (Id.) Sucharski and others had many concerns—

which Nepola consistently “disregarded”—related to Nepola’s “demands in early 2022” for the

Virginia facility to get its unused passivation tank “up and running.” (Id. ¶ 25.) In particular,

Sucharski alleges Nepola demanded he and others “certify compliance with customers’

requirements and specifications,” which, in actuality, “were either not met or were not able to be

verified as having been met.” (Id. ¶ 92.) Sucharski spoke with Nepola about Nepola’s demands

regarding the passivation tank ahead of a visit to HHK’s Virginia facility in late March 2022, and

Nepola “ordered” Sucharski to address those issues with the Virginia site operations manager. (Id.

¶ 26.) Stuart Kennedy (“Kennedy”), the Virginia site operations manager, like Sucharski, “was

unwilling to cut corners to meet Nepola’s demands and explained all the steps, processes, and

resources that would be needed to safely and lawfully set up and operate the passivation tank” as

well as “to support the production and ultimate certification of compliant products.” (Id.) Sucharski

spoke with Nepola after his return to New Jersey, who told him he was furious that Kennedy was

not willing or able to get the passivation tank operational and demanded that Sucharski fire the

manager, which Sucharski refused to do. (Id. ¶ 27.)

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

both Kennedy and Mladjenovic before the Recertification Audit occurred or to otherwise “prevent

or restrict their involvement” in it because of Nepola’s concerns regarding what they might reveal

to the auditors. (Id.) Sucharski refused to comply with the demands. (Id.) The Recertification Audit

identified fifteen areas of concern in the company’s practices and procedures for immediate

correction for HHK to maintain AS9100 certification. (Id. ¶ 29.) In August 2022, HHK’s AS9100

certification was suspended. (Id. ¶ 31.) One week after the Recertification Audit, HHK announced

“a sudden and complete reorganization, starting with Sucharski’s immediate removal as President

of HHK,” which Defendants allege marks the beginning of HHK’s “retaliatory, hostile course of

conduct.” (Id. ¶ 34.) Sucharski’s position as President of HHK was broken up into individual

presidents for each of HHK’s operational bases—Mladjenovic was promoted from New Jersey site

operations manager to President of HHK’s New Jersey operations, and Derek George (“George”)

was appointed as President of HHK’s Virginia operations despite purportedly having been

employed by HHK for just one month. (Id. ¶ 35.) This reshuffling purportedly gave Nepola “the

‘yes men’ to do his bidding.” (Id.)

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.

Nepola had . . . provided Mr. Mladjenovic with money for Mr. Mladjenovic’s mother’s apartment

in Serbia[.]” (Id.) Likewise, “Mr. George was [] an attractive fit to exact Mr. Nepola’s demands

and was . . . ripe for Mr. Nepola’s influence and intimidation.” (Id. ¶ 37.)

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

information belonged to HHK; and (3) an indemnification provision. (Id. ¶¶ 49–51.) The

Intellectual Property Acknowledgement also lacked a mandatory notice required by the Defend

Trade Secrets Act, see 18 U.S.C. § 1833(b)(3)(A), immunizing employees for, and permitting

retention or disclosure of, information related to protected employee activities, including

whistleblowing activities. (Id. ¶ 52.) According to Sucharski, Nepola represented that Boeing (an

HHK customer) demanded HHK create the Intellectual Property Acknowledgement but “failed to

provide anything” by way of proof. (Id. ¶ 54.) Sucharski allegedly “confronted” Nepola about

concerns the Intellectual Property Acknowledgement was “setting up employees of HHK to take

the blame for HHK’s own failures and misconduct.” (Id.) Given his concerns regarding the

Intellectual Property Acknowledgement as well as Nepola’s allegedly unlawful and deceptive

conduct in connection with the Recertification Audit, Sucharski contacted legal counsel, which

angered Nepola, who then demanded Sucharski sign the agreement. (Id. ¶ 55.)

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.)

Later, on November 23, 2022, Sucharski and his wife1 incorporated Saje in Connecticut;

Saje is 100% owned by Mrs. Sucharski and provides “benefits with various government

contracting programs and with certain bids and initiatives.” (Id. ¶¶ 67, 69.) At the time of the filing

of this action, Saje was “focused only on the manufacture of NAS77 bushings and other similar

NAS standard bushings[,]” which are “open bid, open source” and “not even manufactured or

solicited by HHK and were not at any time during Sucharski’s employment with HHK.” (Id. ¶ 74.)

Moreover, Saje: (1) did not occupy office space until March 1, 2023; (2) does not currently have

the required certifications; (3) does not have a quality management system in place; (4) has not yet

earned any revenue; (5) does not produce the same products as HHK; and (6) that, regardless of

the above, “by creating a competing company engaged in virtually the same manufacturing and

sales activities as [HHK], it is inevitable that Mr. Sucharski will necessarily use and disclose

[HHK]’s Protected Information for his own personal gain and to create an unfair competitive

advantage for Saje.” (Id. ¶¶ 71–73.)

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,

1 Although Mrs. Sucharski was originally a named defendant in this action (ECF No. 1), all claims

against her—namely, Counts I, II, III, and VII alleging misappropriation of trade secrets and unjust

enrichment—have been dismissed. (See ECF No. 38.) As such, she is no longer a party to this

lawsuit.

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

Sucharski’s termination on November 18, 2022.” (Id.) Consequently, Defendants bring the

following two counterclaims: (1) wrongful termination under the New Jersey Conscientious

Employee Protection Act (“CEPA”), see N.J. Stat. Ann. §§ 34:19-1, et seq., (id. ¶¶ 89–110); and

(2) common law defamation and/or trade libel (id. ¶¶ 111–16).

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 Federal Rule of Civil Procedure 12(b)(6), a

district court is “required to accept as true all factual allegations in the complaint and draw all

inferences from the facts alleged in the light most favorable to [the non-moving party].” Phillips,

515 F.3d at 228. “[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

omitted). However, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’

requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of

action will not do.” Id. (alterations in original) (quoting Papasan v. Allain, 478 U.S. 265, 286

(1986)). A court is “not bound to accept as true a legal conclusion couched as a factual allegation.”

Papasan, 478 at 286. Instead, assuming the factual allegations in the complaint are true, those

“[f]actual allegations must be enough to raise a right to relief above the speculative level.”

Twombly, U.S. at 555.

“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 Fed. R. Civ. P. 8(a)(2)). Indeed,

after Iqbal, it is clear that conclusory or “bare-bones” allegations will no longer survive a motion

to dismiss: “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id. at 678. To prevent dismissal, all civil complaints must

now set out “sufficient factual matter” to show that the claim is facially plausible, allowing “the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

The Supreme Court’s ruling in Iqbal emphasizes that a plaintiff must show that the allegations of

his or her complaints are plausible. See id. at 670.

While, generally, the court may not consider anything beyond the four corners of the

complaint on a motion to dismiss pursuant to Rule 12(b)(6), the Third Circuit has held that “a court

may consider certain narrowly defined types of material without converting the motion to dismiss

[to one for summary judgment pursuant to Rule 56].” In re Rockefeller Ctr. Props. Sec. Litig., 184

F.3d 280, 287 (3d Cir. 1999). Specifically, courts may consider any “document integral to or

explicitly relied upon in the complaint.” In re Burlington Coat Factory Sec. Litig., 114 F.3d at 1426

(quoting Shaw v. Digit. Equip. Corp., 82 F.3d 1194, 1220 (1st Cir. 1996)). However, “[w]hen the

truth of facts in an ‘integral’ document are contested by the well-pleaded facts of a complaint, the

facts in the complaint must prevail.” Princeton Univ., 30 F.4th at 342.

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.)

In the Second Amended Counterclaims, Defendants contend HHK wrongfully terminated

Sucharski in violation of CEPA for various actions, refusals to take certain actions, and objections

raised in response to alleged conduct by Nepola. (See ECF No. 61 ¶¶ 89–110.) Specifically,

Defendants point to: (1) “concerns” raised by Sucharski regarding “unlawful, deceptive, and

unsafe conduct mandated by” Nepola leading up to, including, and after the Recertification Audit

in June 2022; (2) “Sucharski’s objection to and failure to abide by certain of those mandates,”

including Nepola’s alleged attempts to doctor records and circumvent requirements for

certification; and (3) Sucharski’s failure to sign the Intellectual Property Acknowledgement, which

he considered unlawful. (Id. ¶ 91.)

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 N.J.

Stat. Ann. § 34:19-1; Pierre v. Otsuka Am. Pharm., Civ. A. No. 23-21848, 2024 WL 1704847, at

*6 (D.N.J. Apr. 19, 2024). To state a claim under CEPA, the New Jersey Supreme Court has

explained that a plaintiff must sufficiently allege: (1) a reasonable belief the complained-of

employer conduct violated a law, rule, regulation, or public policy, or is fraudulent or criminal; (2)

whistleblowing activity; (3) an adverse employment action; and (4) a causal connection between

the whistleblowing activity and the adverse employment action. See Dzwonar v. McDevitt, 828

A.2d 893, 900 (N.J. 2003); Young v. Twp. of Irvington, 629 F. App’x 352, 356 (3d Cir. 2015). The

burden of “‘making a prima facie [CEPA] case is relatively easy to meet,’ and is satisfied ‘when

sufficient evidence is offered such that 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.’”

Griffin v. Metromedia Energy, Inc., Civ. A. No. 10-3739, 2011 WL 12872504, at *2 (D.N.J. Feb.

7, 2011) (quoting Bowles v. City of Camden, 993 F. Supp. 255, 264–65 (D.N.J. 1998)). Indeed, the

New Jersey Supreme Court has described CEPA as “remedial legislation . . . [which] ‘should be

construed liberally to effectuate its important social goal.’” Dzwonar, 828 A.2d at 901 (quoting

Abbamont v. Piscataway Twp. Bd. of Educ., 650 A.2d 958, 971 (N.J. 1994)).

It is undisputed that Sucharski was terminated from HHK, and that termination is an

adverse employment action under CEPA § 34:19-2(e). The third element of a CEPA claim, then, is

satisfied. Moreover, the Court found the elements of reasonable belief and whistleblowing activity

were sufficiently pled in its prior opinion granting HHK’s motion to dismiss Defendants’ Amended

Counterclaims. (See ECF No. 55.) The discussion that follows will therefore focus solely on the

fourth element of causal connection.

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

to comply with certain of Nepola’s demands constitute binding judicial admissions which

Defendants are judicially estopped from denying; HHK contends the positions Defendants have

taken regarding Mladjenovic are irreconcilable, made in bad faith, and no lesser sanction would

be appropriate, thereby satisfying the three elements for judicial estoppel to apply. (Id. at 13–15.)

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:

(1) “manipulation of records and processes and ‘pencil whipping’

with respect to the Audit and demands to fire or silence Kennedy

and Provost;”

(2) “employment of a passivation tank at HHK’s Virginia facility

without standard safety measures and without complying with

industry standards and customer specifications;”

(3) “termination of Kennedy in retaliation for resisting Nepola’s

unlawful demand to employ the passivation tank;” and

(4) “execution of the overbroad, unenforceable, and illegal IP

Acknowledgement under a threat of termination . . . and in

breach of whistleblower protections.

(Id. at 13.)

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

employment, not prove it was the only possible basis for it. (Id. at 15–16 (citing Robles v. U.S.

Env’t Universal Servs., Inc., 469 F. App’x 104, 107 (3d Cir. 2012) (internal citation omitted).)

Defendants assert their allegations that Sucharski was “subject to a pattern of retaliation beginning

with his demotion and pretextual reassignment and culminating in his termination” are supported

by the temporal proximity of the chain of events and the circumstantial evidence alleged of the

retaliation itself, which Defendants suggest is “amplified—not undercut” by the allegations in the

Second Amended Counterclaims concerning Mladjenovic’s promotion and Nepola’s alleged

motivation for it. (Id. at 17–20.)

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

connection through other types of circumstantial evidence, such as a pattern of antagonism or

pretext. Cohen v. BH Media Grp., Inc., 419 F. Supp. 3d 831, 856 (D.N.J. 2019).

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

comfortably infer an unlawful retaliatory motive for Sucharski’s termination, which appears to

stand alone and apart from HHK’s treatment of Sucharski’s various co-workers, including

Mladjenovic himself.

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

procedural act very commonly involves deleting, reconfiguring, and adding new factual

allegations. See W. Run Student Hous. Assocs., LLC v. Huntington Nat’l Bank, 712 F.3d 165, 172

(3d Cir. 2013) (“Plaintiffs routinely amend complaints to correct factual inadequacies in response

to a motion to dismiss . . . . That is so even when the proposed amendment flatly contradicts the

initial allegation.”). Indeed, as Defendants rightly point out, their amendments were made in direct

response to the Court granting them leave to amend to cure identified deficiencies involving

Mladjenovic and his alleged involvement or lack thereof in Sucharski’s whistleblowing activities

and related events. (ECF No. 67 at 25.)

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 (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

Court and several of our sister courts have recognized that judicial admissions may be withdrawn

by amendment.”)).

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

negligence evaluated under a preponderance of the evidence standard and malice under a clear and

convincing evidence standard. Id. (quoting G.D. v. Kenny, 15 A.3d 300, 310 (N.J. 2011)). With

regard to the first prong, whether a statement is false depends on if it is one of fact or opinion;

whereas statements of fact can be objectively proved or disproved, opinion statements “reflect a

person’s state of mind” and are therefore protected. Id. (quoting NuWave Inv. Corp. v. Hyman Beck

& Co., 75 A.3d 1241, 1250 (N.J. Super. App. Div. 2013). Opinions can be actionable as defamation,

however, where they “impl[y] ‘reasonably specific assertions’ of underlying objective facts that

are false.’” Id. A defamatory statement is one which “impute[s] . . . ‘fraud, deceit, dishonesty, or

reprehensible conduct’” to the plaintiff. Gillon v. Bernstein, 218 F. Supp. 3d 285, 296 (D.N.J. 2016)

(quoting Dairy Stores, Inc. v. Sentinel Pub. Co., Inc., 516 A.2d 220, 238 (N.J. 1986) (Garibaldi, J.,

concurring)). Courts have explained the aspect of whether a statement is defamatory is generally

a legal question subject to a court’s discretion, though it could be subject to a jury’s deliberations

where the statement is ambiguous and could be reasonably defined as both a defamatory and

opinion statement. Id. (citing Ward, 643 A.2d at 978).

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

allegedly defamatory complaint are protected “by the same qualified privilege extended to others

who publish the contents of a filed complaint.” Cappello v. Scott, 644 A.2d 102, 103 (N.J. Super.

Ct. App. Div. 1994). Notwithstanding this protection, the privilege may be lost when such

republication of allegedly defamatory allegations is done with malice. Arista Recs., Inc. v. Flea

World, Inc., 356 F. Supp. 2d 411, 426 (D.N.J. 2005) (“[C]ase law is clear that, in order to overcome

this qualified privilege, Defendants must plead malice.”); see also Bender v. Smith Barney, Harris

Upham & Co., Inc., 901 F. Supp. 863, 871 (D.N.J. 1994) (“[T]he purposeful dissemination of

defamatory allegations contained in a pleading, for purposes of obtaining publicity of the

allegation, causes otherwise privileged allegations to lose their protected status when published.”)

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

the circumstances to preserve the integrity of the judicial process and maintain a respectful distance

with the media concerning ongoing litigation.

Additionally, Defendants’ reliance on Bender highlights why the complained-of statements

cannot sustain a defamation or trade libel claim. 901 F. Supp. 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. Bender, 901 F. Supp. 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

party making the defamatory statements and the circumstances in which th[o]se statements were

publicized.”); Foxtons, Inc. v. Cirri Germain Realty, Dkt. No. L-1421-06, 2008 WL 465653, at *5

(N.J. Super. Ct. App. Div. Feb. 22, 2008) (holding it is a “plaintiff’s significant burden to plead

with specificity sufficient facts to demonstrate that the [allegedly defamatory statement] was ‘of

and concerning’ [plaintiff] without any further discovery”); F.D.I.C. v. Bathgate, 27 F.3d 850, 875

(3d Cir. 1994) (finding a plaintiff failed to “plead the alleged defamatory statements with

particularity”); Zoneraich v. Overlook Hosp., 514 A.2d 53, 62 (N.J. Super. Ct. App. Div. 1986)

cert. denied, 526 A.2d 126 (N.J. 1986) (providing a plaintiff must specify the “when, where, by

which defendants and by what words” of a defamation claim). Indeed, “pleadings reciting mere

conclusions without facts . . . do not justify a lawsuit.” Neuwirth v. State, 300 A.3d 274, 282 (N.J.

Super. Ct. App. Div. 2023).

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