Choose Your Forum Wisely

The Appellate Division of the New Jersey Supreme Court recently affirmed a dismissal of a plaintiff’s complaint based on the Conscientious Employment Protection Act (CEPA). The plaintiff, David Schmidt, alleged retaliation after he blew the whistle against his employer, Celgene Corporation, and CVS/Caremark Corporation, one of Celgene’s distributors. The primary reason why the Appellate Division affirmed the dismissal of the complaint was based on the fact that Mr. Schmidt first filed his lawsuit in Texas, and when he received an unfavorable ruling on the choice of law, he then filed in New Jersey. Mr. Schmidt’s actions appeared to look like “forum shopping,” a practice the courts strongly frown upon. Further, filing the CEPA claim in Texas first made Mr. Schmidt miss the one year filing deadline in New Jersey.

It is unusual that Mr. Schmidt filed his CEPA claim in Texas before considering New Jersey as New Jersey law provides stronger CEPA protections for employees. When there is more than one acceptable venue for a claim, it is important to keep in mind strategy and evaluate which jurisdiction your claim is more likely to prevail in.