Metro Marketing, LLC v. Nationwide Vehicle Assurance, Inc.

This litigation pitted rival telemarketing firms against one another. The plaintiffs are affiliated companies that sell extended service contracts to motor vehicle owners over the telephone. They claimed that the defendants hired away key managers and more than forty sales force members, siphoned customers, and misappropriated alleged trade secrets. Relying upon several legal theories, the plaintiffs sued to recover damages and obtain injunctive relief. The New Jersey Appellate Division held that the “sham affidavit” doctrine that the New Jersey Supreme Supreme Court adopted in Shelcusky v. Garjulio, 172 N.J. 185, 199-202 (2002), can extend to a “side-switching” situation. In particular, the doctrine can apply where, as here: (1) a codefendant was deposed, (2) that deponent thereafter obtained a job with the plaintiff, (3) the deponent then aided his new employer by signing certifications recanting his deposition testimony, and (4) the plaintiff offered those certifications in opposing summary judgment motions by the other defendants. The Court remanded because the trial court erred in rejecting as evidence a recorded telephone conversation of a different codefendant who was also rehired by one of the plaintiffs’ companies after his deposition.

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