(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that,
in the interests of brevity, portions of any opinion may not have been summarized).
Argued March 26, 1996 -- Decided May 13, 1996
POLLOCK, J., writing for a unanimous Court.
In 1978, Robert Barratt signed a broker-salesperson employment contract with Cushman & Wakefield,
a commercial real estate brokerage. Cushman's employment manual provided that its employees should not
discuss company business with agencies such as the Real Estate Commission without prior approval from
Cushman's legal department.
In 1982, Cushman & Wakefield signed a contract with Connell Rice and Sugar Co., Inc., to act as
Connell's exclusive broker. Barratt actively sought to lease a property on behalf of Cushman. Through William
Schaffel, a competing broker, and others, Connell signed a ten-year lease with AT&T Technologies for over
$70,000,000.
Cushman brought suit against Schaffel and others. It won a judgment of $3,821,469.42 in compensatory
damages and $1,250,000 in punitive damages. The jury found that Schaffel had tortiously interfered with the
exclusive contract between Cushman and Connell and with Cushman's prospective economic advantage.
The Appellate Division affirmed the judgment and both sides petitioned for certification, which the
Court denied on October 10, 1990. While the petitions were pending in the Supreme Court, Barratt drafted a
letter to the Real Estate Commission to inform it of the Appellate Division's decision as it related to Schaffel's
conduct.
Pursuant to his employment contract, Barratt submitted the proposed letter to the attorney for Cushman
& Wakefield. Concerned that the letter would jeopardize Cushman's role as the exclusive leasing agent for a
partnership known as Exchange Place Urban Renewal Associates, which owned a commercial building in Jersey
City, the attorney directed Barratt not to send it. The attorney's concern was based on the fact that Schaffel was
a minority owner in the Exchange Place partnership.
Barratt, who was about to undergo heart surgery, gave a copy of his letter to his attorney with directions
to send it if he did not survive the surgery. Barratt survived the surgery. Subsequently, the letter was sent to
the Real Estate Commission, which acknowledged receipt to Barratt. Barratt took the position that the letter
was either sent erroneously by his secretary or that he might have inadvertently mailed it to the Commission.
Schaffel learned of the letter from the Commission. He complained to Cushman. On August 2, 1990,
Cushman wrote the Commission seeking the withdrawal of the complaint. The Commission refused to do that.
On August 17, 1990, Cushman wrote Barratt to inform him that sending the letter amounted to "gross
insubordination." Cushman discharged Barratt on September 27, 1990.
In response to a January 25, 1991, letter from the Commission, Schaffel, without admitting his guilt, paid
a $1,000 administrative penalty to the Commission.
Barratt subsequently sued Cushman & Wakefield, alleging that it had violated the Conscientious Employee Protection Act (CEPA), the Law Against Discrimination (LAD), the common law, and Barratt's employment contract. The trial court granted Cushman's motion for summary judgment on Barratt's claims of
retaliatory discharge under CEPA and the common law. A jury found that Cushman had good cause for
discharging Barratt and that the dismissal did not constitute a violation of the LAD.
Cushman & Wakefield applied for counsel fees. The trial court granted the application. On appeal,
the Appellate Division determined that the award of counsel fees had to await the outcome of the CEPA claim.
That aspect of the case was remanded for further proceedings.
The Supreme Court granted Cushman & Wakefield's petition for certification.
HELD: The Conscientious Employee Protect Act protects an employee who reports an illegal act of a partner
in a partnership that has a business relationship with the employee's employer. Plaintiff has presented enough
evidence of the business relationship to withstand a motion for summary judgment.
1. The Conscientious Employee Protection Act (CEPA)(N.J.S.A. 34:19-1 to -8) is a codification of the Court's
1980 decision in Pierce v. Ortho Pharmaceutical Corp. The purpose of CEPA is to protect employees who
report illegal or unethical work-place activities. As such, it is remedial legislation that should be construed
liberally. (p. 9)
2. CEPA was expanded in 1989 to protect employees from retaliation for the disclosure of an improper act of
"another employer" with whom the employee's employer has a business relationship. The exclusive leasing
agreement between Cushman and Exchange Place, with Schaffel serving as a minority partner, was a "business
relationship" within the meaning of CEPA. (pp. 10-12)
3. Cushman & Wakefield is not foreclosed from introducing evidence of the precise amount of Schaffel's interest
in Exchange Place. In addition, the Court does not hold that the facts conclusively establish that Schaffel was
"another employer." At this stage in the proceedings, all that can be said is that the Court cannot conclude as
a matter of law that Schaffel was not an employer. (pp. 12-13)
4. An action for retaliatory discharge is sustainable if the business relationship existed at the time of disclosure,
even though the relationship did not exist at the time of the occurrence. A contrary holding would provide a
disincentive for an employee to report an employer's illegal unethical conduct. It would also contravene the
legislative purpose of discouraging collusion between employers. (pp. 13-14)
5. Contrary to the arguments of Cushman, Barratt's claim implicates the public interest. Further, CEPA
protects more than the disclosure of illegal acts that are ongoing. Disclosure of a past act can be in the public
interest. (pp. 15-16)
6. The Law Division should reconsider the counsel fee award after it has resolved Barratt's CEPA claim. (pp.
16-17)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, O'HERN, GARIBALDI, STEIN, and
COLEMAN join in JUSTICE POLLOCK's opinion.
SUPREME COURT OF NEW JERSEY
A-
128 September Term 1995
ROBERT N. BARRATT,
Plaintiff-Respondent,
v.
CUSHMAN & WAKEFIELD OF NEW
JERSEY, INC.,
Defendant-Appellant.
Argued March 26, 1996 - Decided May 13, 1996
On certification to Superior Court, Appellate
Division.
Donna duBeth Gardiner argued the cause for
appellant (Robinson, St. John & Wayne,
attorneys; (Ms. Gardiner and Thomas D. Ruane,
on the briefs).
Frederick E. Gerson argued the cause for
respondent (D'Alessandro & Jacovino,
attorneys).
The opinion of the Court was delivered by
POLLOCK, J.
This case raises two issues concerning the construction of
the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8
(CEPA). The first issue is whether a minority partner in a real
estate partnership can constitute "another employer with whom
there is a business relationship" within the meaning of N.J.S.A.
34:19-3a. The second is whether the business relationship will
sustain an action for a retaliatory discharge if the relationship
existed at the time of the discharged employee's disclosure of
the illegal act of the other employer, but not at the time of the
occurrence of the illegal act. We answer both questions in the
affirmative.
Plaintiff, Robert N. Barratt, sued his former employer,
Cushman & Wakefield of New Jersey, Inc. (Cushman & Wakefield), a
commercial real estate broker, for a retaliatory discharge
resulting from Barratt's disclosure to the New Jersey Real Estate
Commission (the Commission) that William Schaffel may have
participated in commercial bribery seven years earlier. At the
time of Barratt's discharge, Cushman & Wakefield was the
exclusive leasing agent for a partnership known as Exchange Place
Urban Renewal Associates (Exchange Place), which owned a
commercial building in Jersey City. Schaffel was a twenty
percent owner in the partnership.
The Law Division granted Cushman & Wakefield's motion for summary judgment dismissing Barratt's claim for a CEPA violation. The Appellate Division reversed, holding that Schaffel could constitute another employer with whom Cushman & Wakefield had a business relationship and that the existence of the relationship at the time of Barratt's disclosure to the Commission sufficed to sustain Barratt's claim for a retaliatory discharge. We granted
Cushman & Wakefield's petition for certification,
143 N.J. 321
(1995), and now affirm.
On November 15, 1978, Barratt signed a "Broker-Salesperson Employment Contract" with Cushman & Wakefield. Paragraph four of the contract incorporated "the written policies, rules, regulations, and office procedures of [Cushman & Wakefield]." The Cushman & Wakefield employment manual provided:
Employees should not discuss any matters
concerning, or in any way relating, to C&W
[Cushman & Wakefield] business with
representatives of administrative and
investigative agencies, e.g., . . . Real
Estate Commission; or any other governmental
agencies or with any attorneys or insurance
company personnel representing adversaries or
potential claimants against [Cushman &
Wakefield] or our client, without the prior
approval of the Legal Department.
Paragraph 8(a) of the employment contract stated:
In the event any transaction in which Employee is involved results in a dispute, arbitration, litigation or legal fee or expense, Employee shall cooperate fully with C&W and C&W and Employee shall share any fees, expenses, settlements and judgments, in connection therewith in the same proportion as they would normally share the commission or fee resulting from such transaction, provided, however, if in the course of performing his services for C&W in accordance with the terms of this Agreement, Employee,
C&W and Employee, or C&W is made a party
defendant in any litigation, arbitration, or
other legal proceeding, and provided Employee
has not exceeded his authority or otherwise
acted contrary to the terms of this Agreement
with respect to the matter involved, then C&W
shall indemnify, defend and hold Employee
harmless from any loss, liability, damages,
costs and expenses, including attorney's
fees, in excess of Employee's share of the
commission or fee received or to be received
by Employee relating to the matter in
dispute.
Finally, paragraph ten of the employment contract provided
in part:
In the event any legal action or proceeding
is commenced to interpret or enforce the
terms of or obligations arising out of this
Agreement, or to recover damages for the
breach thereof, the party prevailing in any
such action or proceeding shall be entitled
to recover from the non-prevailing party all
reasonable legal fees, costs and expenses
incurred by the prevailing party.
In 1982, Cushman & Wakefield entered an agreement to act as
the exclusive broker for Connell Rice & Sugar Co., Inc. (Connell)
in the rental of a large commercial building in Berkeley Heights.
Barratt actively sought to lease the property on behalf of
Cushman & Wakefield. Through Schaffel, a competing broker, and
others, Connell signed a ten-year lease with AT&T Technologies
for $71,429,388.40.
In an ensuing civil action, Cushman & Wakefield obtained a
judgment against Schaffel and others for $3,821,469.42
compensatory damages and $1,250,000 punitive damages.
Specifically, the jury found that Schaffel had tortiously
interfered with the exclusive contract between Cushman &
Wakefield and Connell and with Cushman & Wakefield's prospective
economic advantage.
The Appellate Division affirmed in an unreported opinion.
Both parties filed petitions for certification, which this Court
denied on October 10, 1990.
122 N.J. 390 (1990). Ultimately,
the defendants paid Cushman & Wakefield $5,535,632.40, from which
Cushman & Wakefield paid Barratt $1,107,126.48, less $157,379.11,
representing Barratt's share of the legal fees.
While the petitions for certification were pending in this
Court, Barratt drafted a letter dated July 5, 1990, to the
Commission to inform it of "a decision of the Appellate Division
. . . affirming a jury verdict which found that William D.
Schaffel (broker) and Benedict Torcivia (salesperson) were guilty
of conspiracy and commercial bribery and that both participated
in a pay off (a commission) to a person . . . not a broker."
Barratt submitted his proposed letter to Cushman &
Wakefield's attorney, Steven A. Sandberg. Concerned that
Barratt's letter would jeopardize the brokerage relationship with
the partnership, Sandberg directed Barratt not to send it.
Sandberg sent a confirming memorandum of July 10, 1990, stating:
"As I informed you, neither you nor your attorney are [sic]
authorized to make such communication on behalf of Cushman &
Wakefield. If and when the proper time for the communication
arises, that will be a decision made by the firm."
Barratt, who was about to undergo heart surgery, gave a copy
of his letter to his attorney, Edward D'Alessandro, with
instructions to send the letter to the Commission if Barratt
died. Barratt survived the surgery. At one point, Barratt said
that he did not remember sending the letter. Someone, however,
sent it to the Commission, and the Commission sent Barratt a
letter acknowledging receipt. Later, Barratt alleged he
feels that it is possible that he may have
left the original letter at his office and
that his secretary, unbeknownst to him, may
have mailed the letter to the New Jersey Real
Estate Commission or, that in a moment of
extreme stress, he may have inadvertently
mailed that letter to the New Jersey Real
Estate Commission.
While Barratt was on medical leave, Schaffel learned that the Commission had received the letter. Schaffel complained to Cushman & Wakefield. On August 2, 1990, Barratt's counsel wrote to the Commission requesting withdrawal of the complaint. The
Commission, however, proceeded. In response to a letter of
January 25, 1991, from the Commission, Schaffel, without
admitting his guilt, paid a $1,000 administrative penalty to the
Commission.
In the interim, on August 17, 1990, Sandberg sent Barratt a
memorandum informing him, "[t]his action on your part constitutes
gross insubordination and a wanton violation of the terms of your
employment . . . ." On September 27, 1990, Cushman & Wakefield
+discharged Barratt and sent him a confirming memorandum,
stating: "Per our discussion this morning, you are hereby
terminated for cause as per [counsel's] memo to you . . . ."
Barratt filed a multi-count complaint against Cushman & Wakefield. The relevant counts alleged that Cushman & Wakefield violated CEPA by dismissing him in retaliation for his letter to the Commission; that Cushman & Wakefield dismissed him in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, because of his heart condition and age, sixty-two; in violation of public policy and the common law; and in violation of his employment contract, which required two weeks' notice. He also alleged that he was entitled to disability benefits arising from his heart attack and that he had not received his full share of the proceeds of the earlier civil action against Schaffel. Underlying the last claim was the contention that Cushman &
Wakefield had deducted not only Barratt's proportionate share of
the attorney's fees related to the claim for a commission, but
also a share of the fees attributable to the defense of
Schaffel's counterclaim charging anti-trust violations.
Of particular relevance to this appeal, the Law Division
granted Cushman & Wakefield's motion for summary judgment
dismissing Barratt's claims for retaliatory discharge under CEPA
and the common law. On the remaining claims, the jury found that
Cushman had good cause for dismissing Barratt and that his
dismissal did not violate the LAD. The only claim on which the
jury found for Barratt was that for disability benefits arising
from his heart attack.
While the jury was deliberating, the trial court determined
that Cushman & Wakefield properly had charged Barratt with a
portion of the litigation expenses attributable to the defense of
Schaffel's anti-trust counterclaim in the earlier proceeding.
Thereafter, Cushman & Wakefield applied for attorney's fees. It based its application on the terms of the employment contract; the LAD, which authorizes the allowance of reasonable attorneys' fees to a party that has successfully defended against discrimination claims if "the charge was brought in bad faith," N.J.S.A. 10:5-27.1; and on CEPA, which authorizes the award of
reasonable attorneys' fees to an employer "if the court
determines that an action brought by an employee under this act
was without basis in law or in fact." N.J.S.A. 34:19-6. For the
defense of the claims under the employment contract, including
claims not otherwise relevant to this appeal, the court awarded
Cushman & Wakefield $187,181.58 for attorney's fees and
$30,784.60 for disbursements; $75,727.60 for attorneys' fees for
defense of the LAD claim; and $18,524.43 for attorneys' fees in
defending the CEPA claim.
In reversing the Law Division's dismissal of the CEPA claim,
the Appellate Division also ruled that CEPA, N.J.S.A. 34:19-8,
preempted Barratt's common-law claim for retaliatory discharge.
The Appellate Division found further that the amounts awarded for
attorneys' fees were reasonable. It continued, however, that the
award of attorneys' fees to the "prevailing party," on the
contract claim should await the outcome of the resolution of that
claim. The court also stated that to sustain an award of
attorneys' fees to Cushman & Wakefield under CEPA, the Law
Division must first find that Barratt's action "was without basis
in law or in fact." N.J.S.A. 34:19-6. Concerning the attorney's
fee awarded on the LAD claim, the Appellate Division stated that
the Law Division must find "`that the [discrimination] charge was
brought in bad faith.'" N.J.S.A. 10:5-27.1."
Ten years ago, the Legislature adopted CEPA. In CEPA the Legislature codified this Court's ruling in Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (1980), which protected employees against discharges that violated a clear mandate of public policy. The purpose of CEPA is to protect employees who report illegal or unethical work-place activities. So viewed, CEPA is remedial legislation. Consequently, courts should construe CEPA liberally to achieve its remedial purpose. Abbamont v. Board of Educ., 138 N.J. 405, 431 (1994).
Specifically, CEPA prohibits an employer from taking
retaliatory action against an employee who discloses to a public
body an activity of an employer "that the employee reasonably
believes is in violation of a law, or a rule or regulation
promulgated pursuant to law." N.J.S.A. 34:19-3a. Barratt
perceived that Schaffel had violated a rule of the Commission.
For the purposes of withstanding Cushman & Wakefield's motion for
summary judgment, we conclude that CEPA protects Barratt's
conduct in reporting the alleged violation to the Commission.
Because this appeal arises from the grant of a summary judgment in favor of defendant, Cushman & Wakefield, we give plaintiff the benefit of all inferences that may be drawn in his favor. R. 4:46-2; Pierce, supra, 84 N.J. at 61. So viewed, the
record reveals that Schaffel is a partner in Exchange Place,
Cushman & Wakefield is the partnership's leasing broker, Barratt
reported to the Commission Schaffel's illegal conduct of seven
years ago, and that Cushman & Wakefield fired Barratt in
retaliation for sending the letter and to protect its business
relationship with Schaffel's partnership.
The initial question is whether CEPA protects an employee who reports an illegal act of a partner in a partnership that has a business relationship with the employee's employer. Finston v. Unemployment Compensation Commission, 132 N.J.L. 276 (Sup. Ct. 1944), aff'd sub nom Naidech v. Unemployment Compensation Commission , 134 N.J.L. 232 (E. & A. 1946), on which Cushman & Wakefield relies, is irrelevant. In that case, the court held that a partnership that had common partners with a second partnership was not liable to the unemployment compensation fund for the obligation to the fund of the second partnership. That issue is distinguishable from the issue before us, whether CEPA covers Barratt's otherwise protected disclosure about Schaffel, a partner in a partnership with which Cushman & Wakefield had a business relationship. CEPA's emphasis on protecting an employee, such as Barratt, from a retaliatory discharge likewise distinguishes Barratt's situation from attempts to hold a partnership liable for the wrongs of individual partners. See N.J.S.A. 42:1-9; 42:2A-27 (stating that partnership not liable
for acts of individual partners taken without partnership's
acquiescence). The issue of Exchange Place's liability for
Schaffel's acts is not before us.
As originally enacted, CEPA protected an employee from
retaliatory action for a disclosure about "an activity, policy or
practice of the employer . . . ." L. 1986, c. 105, § 3a. In
1989, the Legislature extended CEPA to protect employees from
retaliation for disclosure about such an activity, policy or
practice of "another employer, with whom the employee's employer
has a business relationship . . . ." L. 1989, c. 220, § 1.
Assembly Labor Committee Statement No. 661 explained the
legislative purpose:
Under current law, an employee is
protected against retaliation only with
regard to the disclosure or threatened
disclosure of information about his employer
and public policies concerning the health,
safety or welfare of the public. These
protections are available to the employee,
though, only if the employee brings the
unlawful activity, policy or practice to the
attention of the employer, and provides the
employer with a reasonable opportunity to
correct the unlawful activity, policy or
practice.
The aim of the bill is to discourage
collusion between employers for the purpose
of inhibiting disclosure by their employees
of violations of law committed by either
employer.
Through its exclusive leasing agreement, Cushman & Wakefield
had a business relationship with Exchange Place. The issue is
whether Schaffel's acts, through his relationship with Exchange
Place, can constitute those of Exchange Place and therefore of
"another employer with whom" Cushman & Wakefield had a business
relationship. In resolving that issue we recognize that the
exclusive leasing agreement between Cushman & Wakefield and
Exchange Place constitutes a "business relationship" between the
two employers. Although the record is not clear on the precise
amount of Schaffel's interest in Exchange Place, his testimony
that it was "less than twenty per cent" leaves the impression
that the interest, although that of a minority limited partner,
was significant. Further, Schaffel's relationship to the general
partner, Prudential, was sufficient for Cushman & Wakefield to
fear that Barratt's complaint to the Commission could result in
the loss of Exchange Place as a customer. Objectively viewed,
that fear, expressed by Cushman & Wakefield's counsel on
deposition, was reasonable. The facts, although not
overpowering, suffice to withstand Cushman & Wakefield's motion
for summary judgment.
Two considerations affect our evaluation of the facts. First, CEPA is remedial legislation, and courts should construe liberally such terms as "another employer." Second, the issue
arises on Cushman & Wakefield's motion for summary judgment.
Consequently, we must accord Barratt the benefit of all favorable
inferences that a fact finder might draw in Barratt's favor. So
viewed, we conclude that a fact finder could find that Schaffel
had a sufficient interest to provide Cushman & Wakefield with the
incentive to cover up wrongdoing by Schaffel.
In reaching that conclusion, we do not foreclose Cushman &
Wakefield from introducing evidence of the precise amount of
Schaffel's interest and activities in Exchange Place. Nor do we
hold that the facts conclusively establish that Schaffel was
"another employer." We recognize that in some situations the
acts of a passive investor with a minimal interest in a real
estate partnership need not constitute the acts of the
partnership. Here, we go no further than to say that we cannot
conclude as a matter of law that Schaffel was not an employer.
We next consider whether a business relationship will sustain an action for a retaliatory discharge if the relationship existed not at the time of the occurrence, but at the time of disclosure of the illegal act. Schaffel's conspiracy and commercial bribery occurred in 1983 at a time when he had no business relationship with Cushman & Wakefield. In fact, at that time they were competitors. In 1990, however, when Barratt
disclosed Schaffel's wrongdoing to the Commission, Schaffel had a
business relationship with Cushman & Wakefield.
We hold that a business relationship at the time of the
disclosure can provide the incentive for the collusion that CEPA
sought to discourage. A contrary holding would provide a
disincentive for an employee to report an employer's illegal
unethical conduct. It would also contravene the legislative
purpose of discouraging collusion between employers. As the
Assembly Statement declared, "[t]he aim of the [1989 amendments]
is to discourage collusion between employers . . .," not merely
provide redress for wronged employees. Assembly Labor Committee
Statement No. 661, L. 1989, c. 220, § 1.
The statutory requirement that employees notify their employers and give them a reasonable opportunity to correct their unlawful conduct, N.J.S.A. 34:19-4, does not undermine Barratt's action. The purpose of that requirement, which was part of CEPA as it was originally enacted, is to provide an employer with the opportunity to correct illegal or unethical activities. We doubt that the Legislature intended that N.J.S.A. 34:19-4 would bar a retaliatory discharge action under the 1989 amendments for an act committed by another employer at a time when the discharging employer did not correct it. Finally, Barratt notified Cushman & Wakefield of his intent to complain to the Commission. Giving
Barratt the benefit of all favorable inferences, that
notification would satisfy the statute.
We likewise reject Cushman & Wakefield's argument that CEPA
does not apply to Barratt's claim because it does not implicate
the public interest. To reject that claim, we need not plumb the
depths of the differences between common law and statutory
retaliatory-discharge actions. Nor need we resolve whether CEPA
requires that the discharge affect the public interest. Here,
the effect on the public interest is apparent.
Real estate brokerage is heavily regulated. N.J.S.A. 45:15-1 to -29.5; N.J.A.C. 11:5-1.1 to -6.19. Schaffel's conduct,
which led to the imposition of an administrative penalty of
$1,000, reflects adversely on all brokers. If unredressed,
unethical or illegal conduct could lead others astray and subvert
public confidence in real estate brokers. To protect the public,
the Commission licenses brokers, investigates complaints of
misconduct, and conducts disciplinary proceedings. Statutes and
administrative regulations, moreover, are precisely the mandates
of public policy that will support an action for wrongful
discharge. Pierce, supra, 84 N.J. at 72.
We find distinguishable two cases cited by Cushman & Wakefield: Littman v. Firestone Tire & Rubber Co., 715 F. Supp
90 (S.D.N.Y. 1989), and Foley v. Interactive Data Corp.,
765 P.2d 373 (Cal. 1988). In Littman, the court granted the employer's
motion for summary judgment because the employee "failed to
adduce any evidence to demonstrate a prima facie case that his
whistle-blowing may have played a part in the decision to fire
him." 715 F. Supp. at 92. The court stated in dicta that the
employer's conduct did not violate CEPA because the conduct
affected only the employer and its shareholders, not the public.
Id. at 93. For similar reasons, the California Supreme Court in
Foley found no violation of public policy arising from the
discharge of an employee who warned his employer that his
supervisor had been indicted for fraud. The court ruled that the
disclosure served not the public, but "only the private interest
of the employer." 765 P.
2d at 380. For reasons previously
stated, Schaffel's conduct was adverse to the public interest in
regulating the activities of real estate brokers. Hence, both
Littman and Foley are distinguishable on their facts.
Contrary to Cushman & Wakefield's contentions, we believe
that CEPA protects more than the disclosure of illegal acts that
are ongoing. To require employees to confirm that the illegal
conduct was ongoing would inhibit them from reporting that
conduct. Disclosure of illegal conduct that is past, moreover,
like that of ongoing conduct, can be in the public interest.
The Appellate Division directed a limited remand on the
award of attorneys' fees, including the fees awarded for the
breach of the employment contract. Cushman & Wakefield argues
that the award of fees under that contract is separate from the
award under CEPA and LAD. Although we recognize the technical
correctness of that argument, see Young v. Schering Corp.,
141 N.J. 16, 29 (1995) (holding statutory waiver of common-law
wrongful-discharge claim did not affect waiver of employee's
contractual claims), we believe that the fairer and more
reasonable result is to permit the Law Division to reconsider the
award after the determination of Barratt's CEPA claim.
Conceivably, Cushman & Wakefield could prevail on the contract
claim, but not on the CEPA claim. We do not suggest that such a
result is appropriate, only that it is possible. Under the
circumstances, we believe that the more prudent decision is to
defer the award of fees until after the resolution of the CEPA
claim.
The judgment of the Appellate Division is affirmed, and the
matter is remanded to the Law Division.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, O'HERN, GARIBALDI, STEIN, and COLEMAN join in JUSTICE POLLOCK's opinion.
NO. A-128 SEPTEMBER TERM 1995
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
ROBERT N. BARRATT,
Plaintiff-Respondent,
v.
CUSHMAN & WAKEFIELD OF NEW
JERSEY, INC.,
Defendant-Appellant.
DECIDED May 13, 1996
Chief Justice Wilentz PRESIDING
OPINION BY Justice Pollock
CONCURRING OPINION BY
DISSENTING OPINION BY