Decision may reshape relationship between business, press

Applebee’s restaurant franchisee and Doherty Enterprises President Ed Doherty got some unwanted attention late last year, following an interview with The Record newspaper, where he said “If I treat them [employees] with dignity and respect, and provide a great opportunity for them to have a good job and to grow within their job, then they will wow every guest every time.”

Soon after the article was posted to the paper’s Web site, reader Michael Murray responded in the comments section, claiming he was “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.”

Murray, who is not a lawyer, previously represented his daughter, Erin Duby, who claimed she was sexually harassed by managers and employees when she worked at one of Doherty’s Applebee’s restaurants.

Doherty responded with a lawsuit against Murray, claiming his statements defamed, or injured the reputation, of Doherty Enterprises, according to documents filed in the case.

But when Doherty agreed to the newspaper interview, “which he knew would be published, would be distributed globally via the Internet and would open him to public criticism for his comments,” the restaurant owner “exposed both himself and his business entity to public criticism,” according to Essex County Superior Court Judge Donald Goldman’s May 7 ruling, which blocked Doherty’s efforts to win a summary judgment, or a favorable decision without going to trial.

The courts generally make it tougher for so-called public figures — typically politicians — to prove defamation, the judge noted in the ruling.

The two sides eventually reached a confidential settlement, according to a lawyer who represented Doherty in the case.

“If you seek out publicity, you may get more exposure than you planned on,” said Bruce S. Rosen, a partner with the Florham Park-based law firm McCusker, Anselmi, Rosen & Carvelli. Rosen was not involved in the case, but First Amendment and media law issues are among his primary focuses.

But even without the interview, Doherty may have had a tough time proving defamation, Rosen added.

“The ruling does not mean that every businessperson is automatically a public figure,” Rosen said. “A person’s statements about a hostile workplace constitute an issue of public concern that the courts appear to want to protect.”