On September 4, 2013, the New Jersey Appellate Division in Lippman v. Ethicon, Inc., Docket No. L–9025–06, 2013 WL 4726834 (App. Div. September 04, 2013), reversed a ruling by the Superior Court, Law Division granting summary judgment to the defendant employers and dismissing plaintiff’s claim under New Jersey’s Conscientious Employee Protection Act (CEPA) on the grounds that the plaintiff had “failed to show that he performed a whistle-blowing activity” where plaintiff’s job responsibilities included alerting his employer to potential safety issues related to the defendants’ drugs and products.  In the Appellate Division’s view, an employee’s job title or job responsibilities should not be considered “outcome determinative”  when deciding whether a plaintiff has made out a cognizable claim under New Jersey’s Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19–1 to –8.


Plaintiff Joel S. Lippman, M.D., brought a claim under CEPA, against his former employer, Ethicon, Inc., a subsidiary of defendant Johnson & Johnson, Inc. (“J & J”) alleging he was terminated after repeatedly raising concerns about the safety or efficacy of several different pharmaceutical drugs and medical products.  Plaintiff joined Ethicon in July 2000 as the Vice President of Medical Affairs.  In that position Plaintiff was responsible for “safety, ensuring that safe medical practices occurred in clinical trials of [Ethicon’s] products; … medical reviews, information from a medical standpoint; [and] medical writing.”  Defendants contended that when plaintiff expressed opinions regarding the safety of certain products; he was performing his “core job functions” and was not engaged in “whistle-blowing under CEPA.”  The defendants also argued that plaintiff’s termination was unrelated to his work on the various safety review boards, but was in fact due to evidence that plaintiff had engaged in a “inappropriate sexual relationship with a subordinate.”

In granting summary judgment to the defendants, the trial court relied on Massarano v. New Jersey Transit, 400 N.J.Super. 474, 477-79 (App.Div.2008), an earlier Appellate Division opinion which found the plaintiff was not engaged in whistle-blowing activities when she reported seeing important documents discarded in her employer’s dumpster on the grounds that plaintiff was just “doing her job as the security operations manager by reporting her findings and her opinion to.”  The trial court held that since Lippman’s core job responsibilities required him to monitor and report any concerns he may have had regarding the safety of defendants’ drugs or medical products, plaintiff “failed to show that he performed a whistle-blowing activity.”

Appellate Division Decision

The Appellate Division, however, reversed the trial court’s grant of summary judgment in defendants’ favor as inconsistent with “CEPA’s broad remedial purpose” and on the grounds that “‘Watchdog’ employees, like plaintiff, are the most vulnerable to retaliation because they are uniquely positioned to know where the problem areas are and to speak out when corporate profits are put ahead of consumer safety.”  In support of its ruling, the court explained that the defendants had set up various quality boards to function as open forums where employees could freely express their opinions regarding the safety of certain drugs and medical devices.

The Appellate Division went on to explain that “watchdog” employees would refer to employees who “by virtue of his or her duties and responsibilities, is in the best position to: (1) know the relevant standard of care; and (2) know when an employer’s proposed plan or course of action would violate or materially deviate from that standard of care.” Just because an individual’s job description includes the responsibility “to protect the public from exposure to dangerous defective medical products, CEPA does not permit the employer to retaliate against that individual because of his or her performance of duties in good faith, and consistent with the job description.”  Ultimately, the court reversed the trial court’s grant of summary judgment and remanded the case for further proceedings.


The Lippman decision is a troubling one for many reasons.  Regulators constantly exhort employers to instill a “culture of compliance” which requires hiring and encouraging “watch dog” employees to perform their job duties with both honesty and zeal.  Lippman undermines an employer’s incentives in this regard because it makes any such employee a potential plaintiff whistleblower within the meaning of CEPA.  In the absence of a more favorable ruling by the New Jersey Supreme Court, New Jersey employers — particularly those in regulated industries — should tread carefully when dealing with employees who meet the Lippman definition of “watchdogs”.

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Photo of Lloyd B. Chinn Lloyd B. Chinn

Lloyd B. Chinn is a partner in the Labor & Employment Law Department and co-head of the Whistleblowing & Retaliation Group. He litigates employment disputes of all types before federal and state courts, arbitration tribunals (e.g., FINRA, JAMS and AAA), and before administrative…

Lloyd B. Chinn is a partner in the Labor & Employment Law Department and co-head of the Whistleblowing & Retaliation Group. He litigates employment disputes of all types before federal and state courts, arbitration tribunals (e.g., FINRA, JAMS and AAA), and before administrative agencies in New York and across the country. Lloyd’s practice ranges from litigating compensation disputes to defending whistleblower, discrimination and sexual harassment claims. Although he represents employers in a wide range of industries, including law, insurance, health care, consulting, media, education and technology, he focuses a substantial portion of his practice on the financial services sector. He has tried to final verdict or arbitration award substantial disputes in this area.

Due to Lloyd’s litigation experience, clients regularly turn to him for advice regarding the full range of employment matters, including terminations, whistleblower policy and procedure, reductions in force, employment agreements, and employment policies. For example, in the wake of the financial crisis, he has counseled a number of firms through reductions in force and related bonus and deferred compensation disputes. Lloyd has also been retained to conduct internal investigations of allegations of workplace misconduct, including claims leveled against senior executives.

Lloyd has represented global businesses in matters involving Sarbanes-Oxley and Dodd-Frank whistleblower claims. He has taken an active role in the American Bar Association on these issues, currently serving as Co-Chair of the Whistleblower subcommittee of the ABA Employee Rights and Responsibilities Committee. Lloyd has spoken on whistleblowing topics before a numerous organizations, including the American Bar Association, ALI-ABA, Association of the Bar of the City of New York, and New York University School of Law. He has testified twice before Congressional subcommittees regarding whistleblower legislation and has also published blog postings, articles and client alerts on a variety of topics in this area, including the Dodd-Frank Act’s whistleblower provisions. Lloyd is a co-editor of Proskauer’s Whistleblower Defense Blog, and he has been widely quoted by on whistleblower topics by a number of publications, including the New York Times, the Wall Street Journal, the National Law Journal and Law 360.

Lloyd has also become active in the International Bar Association, presenting on a variety of subjects, including: the #MeToo movement, the COVID-19 pandemic and employment law, and cross-border harmonization of employment provisions in transactions. Lloyd also hosts a quarterly roundtable discussion among financial services industry in-house employment lawyers. He has also published articles and given speeches on a variety of other employment-law topics, including non-solicitation provisions, FINRA arbitration rules, cross-border discovery, e-discovery, and the use of experts.

Photo of Lucas Markowitz Lucas Markowitz

Lucas A. Markowitz is an Associate in the Labor & Employment Department, resident in the Newark office.