Court Must Examine Totality of the Evidence in Deciding Employer’s Fee-Shifting Application

DiMaggio v. Novartis Pharmaceutical Corp., 2010 WL 4621881 (App. Div., November 15, 2010) – The Appellate Division recently ruled that a court must review all available evidence when determining whether a plaintiff’s lawsuit is frivolous because it is based on fabricated facts. The plaintiff brought suit under the Conscientious Employee Protection Act (CEPA), New Jersey’s whistleblower statute, alleging that he was terminated for making an anonymous call to his employer’s confidential complaint line. After the jury issued a verdict in favor of the employer, the employer moved for costs and fees pursuant to CEPA’s fee-shifting provision and New Jersey’s frivolous litigation statute. The Appellate Division concluded that a court may not simply deny such an application because a jury question may have existed regarding the plaintiff’s claims, but must examine all evidence adduced to determine whether the plaintiff’s claims were fabricated and made in bad faith.