Doherty Enterprises, Inc. v. Murray [1]

Doherty Enterprises, Inc., a large Applebee's restaurant franchisee with approximately 80 restaurants in New Jersey and neighboring states, sued Michael Murray for defamation and trade libel over a critical comment posted to a September 2008 article on NorthJersey.com [2], the online edition of The Record. 

The article in question contained an interview with Ed Doherty, the founder and president of Doherty Enterprises. In the interview, Ed Doherty stated that he believes he “treat[s employees] with dignity and respect and provide[s] a great opportunity for them to have a good job . . . . I want the people that work for me never to want to leave me.” When asked what his "recipe for success was," Doherty replied: “Don't lie, don't steal. And treat everybody the way you want to be treated. If you do that, you've lived a good life. . . . It's so simple.” 

Michael Murray posted the following comment:

I find this article quite disturbing with respect to how Ed Doherty represents how he treats people. I am an advocate involved in a sexual harassment case and have arbitration transcripts which demonstrate that women . . . are routinely sexually harassed and that this behavior is condoned by high level management at Doherty Enterprises right up to the top. His General Managers & Area Managers commit perjury, obstruct and/ or [sic] ignore sexual harassment claims with immunity
[sic]. This man and his rhetoric are repugnant and fly in the face of the facts. . . . . Additionally, any reader who has a daughter, wife etc. [sic] working for Doherty are more than likely being subjected to similar treatment. . . .

At the time, Murray, a non-lawyer, was representing his daughter in the arbitration of a sexual harassment case against Doherty Enterprises, in which she claimed that she was sexually harassed by managers and employees of the Applebee’s at which she worked.  In late 2007, Murray had rejected a settlement offer on behalf of his daughter.

Doherty Enterprises filed suit, and both parties moved for summary judgment in April 2009.  In May 2009, the court granted summary judgment to Murray, dismissing all of the claims against him.  The court ruled that certain of the statements -- such as that Doherty's rhetoric was "repugnant" and that others were "likely being subject to similar treatment" -- were "pure opinion" subject to an absolute privilege. 

The court determined that the remaining statements related to a matter of public concern and that Doherty became a public figure for purposes of New Jersey law when he gave an interview with The Record, thus “voluntarily and knowingly engag[ing] in conduct that one in his position should reasonably know would implicate a legitimate public interest, engendering the real possibility of public attention and scrutiny.”  Therefore, the court held that the "actual malice" standard applied. Applying this standard, the court found that Murray had sufficient evidentiary support from the arbitration proceedings "to defeat any claim that these statements were made with the recklessness required."

The court refused to dismiss Murray's counterclaim for abuse of process, finding that factual issues remained about whether Doherty Enterprises brought the lawsuit with an "ulterior motive" to allegedly punish Murray refusing to settle the arbitration proceeding. 

According to one press account [3], Doherty Enterprises and Murray subsequently settled for an undisclosed amount.