Hancock, et al. v. Borough of Oaklyn, et al. In an unreported decision on December 16, 2004, the Appellate Division in Hancock, et al. v. Borough of Oaklyn, et al., A-2021-03T3, dismissed an employer’s application for counsel fees after successfully dismissing an employees’ Conscientious Employee Protection Act (“CEPA”) suit even though the lower court determined that the litigation “was without basis and law or in fact.” The CEPA statute allows for the successful litigant to make an application for counsel fees. Typically, this provision is relied upon by successful plaintiffs. The Appellate Division, however, noted that a party’s failure to prevail in a lawsuit does not render the suit one in which there is no basis in law or in fact. The Appellate Division cited earlier authority which defined frivolous as “a claim will be deemed frivolous or groundless when no rational argument can be advanced in its support, when it is not supported by any credible evidence, when a reasonable person could not have expected its success, or when it is completely untenable. The Appellate Division stressed that “when the plaintiff’s conduct bespeaks an honest attempt to press a perceived, though ill-founded and perhaps misguided, claim, he or she should not be found to have acted in bad faith.” Here, the Appellate Division’s reversal of the grant of counsel fees for this successful defendant/employer highlights the difficulty employers have in recouping litigation costs even when defending suits with little merit. It is unclear from the decision with the employer had the proper policies in place to handle whistleblower-type complaints by employees. Stark & Stark attorneys can help your Company to develop policies that satisfy CEPA’s statutory requirements.