ALAN MARCUS AND THE MARCUS GROUP, INC. v. DENNIS MCNERNEY

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

Plaintiff, Alan Marcus, has been an active New Jersey politician since the 1960’s serving in leadership positions in the Bergen County Republican Committee. Marcus is also the Chief Executive Officer and sole owner of The Marcus Group, INC. The Marcus Group, INC. offers lobbying, strategic counseling, advertising, public relations and crisis management services to private and public entities. In 2010, Kathleen Donovan was the Republican candidate running for the office of Bergen County Executive and Marcus was her advisor. She defeated McNerney in the election and Marcus served as a Chairman of Donovan’s transition team. Marcus later came under scrutiny by the Bergen County Board of Chosen Freeholders, the media, as well as the United States Attorney’s Office. On a public relations contract awarded to The Marcus Group by Bergen County Community College. Prior to the 2014 re-election, McNerney, in his name and other fictitious identities, posted defamatory comments on PolitickerNJ.com accusing Marcus of fraud, blackmail, corruption, and exchanging “sex contracts.”

Plaintiffs Alan Marcus and The Marcus Group, Inc. filed suit against defendant Dennis McNerney for his comments he posted on the PolitickerNJ.com website. Plaintiffs alleged the comments published were defamatory, an invasion of privacy false light, and in violation of the Computer Related Offenses Act (CROA). The plaintiffs also alleged the comments posted were financially damaged because McNerney’s posts were a “purposeful or knowing, and unauthorized access or attempt to access any computer, computer system or computer network.”

In granting partial summary judgment dismissing the Computer Related Offenses Act claims, the trial judge issued a decision stating viewing the allegations in the light most favorable to plaintiffs, McNerney’s postings on PolitickerNJ.com did not constitute purposeful and knowing conduct as contemplated by CROA. The judge explained the posts did not violate the CROA because they “did not purposefully and knowingly access the websites’ computer network in an unauthorized manner.” Plaintiffs appeal the judge’s decision to grant partial summary judgment.

The Appellate Court did not disturb the trial judge’s ruling. The Appellate Division was convinced the lower court properly interpreted the Computer Related Offenses Act in his dismissal of the plaintiff’s Computer Related Offenses Act claims.

The Computer Related Offense Act provides:

A person or enterprise damaged in business or property as a result of any of the following actions may sue the actor therefore in the Superior Court and may recover compensatory and punitive damages and the cost of the suit, including a reasonable attorney’s fee, costs of investigation and litigation:

1. The purposeful or knowing, and unauthorized altering, damaging, taking or
2. destruction of any data, data base, computer program, computer software or computer equipment existing internally or externally to a computer, computer system or computer network;
3. The purposeful or knowing, and unauthorized altering, damaging, taking or
4. destroying of a computer, computer system or computer network;
5. The purposeful or knowing, and unauthorized accessing or attempt to
   access any computer, computer system or computer network
6. The purposeful or knowing, and unauthorized altering, accessing, tampering with,
   obtaining, intercepting, damaging or destroying of a financial instrument; or
   computer program, computer software, computer equipment, computer system or
   computer network.
   [N.J.S.A. 2A:38A-3]

The plaintiffs argued McNerney knowingly posted comments on PolitickerNJ.com thereby
engaging in an “unauthorized access” and “unauthorized altering” which is prohibited by the
Computer Related Offenses Act. The support the plaintiffs used in their case was Fairway Dodge
v. Decker Dodge. The Supreme Court held that the defendant was liable in using his employer’s
computer in an unauthorized manner to copy customer lists for a competitor. The Appellate
Court found their argument and the use of this case to be too broad in order to comply with the
Computer Related Offenses Act clear statute. The Appellate Court affirms the trial judge’s
decision that McNerney posts concerning Marcus on PolitickerNJ.com did not violate the
Computer Related Offenses Act.