are you saying that the harassment that led to the harassment is put into the process as a way of independent getting the refrigerator but the statute that's  the case law is clear in the statute is clear there are two ways that public accommodation discrimination can occur under the l e d the st way is an outright denial of access because of membership in a protected classification the nd way is to engage in discrimination in the furnishing of those services so even though one may not be denied access or denied services one may still be discriminated against in the process of obtaining the services this is been the law since the nd was written and the supreme court made particular note of it and made that finding st in the frantic decision and then in the turner decision in both of those cases the plaintiffs were not actually denied access to the place of public accommodation they were simply subjected to discriminatory conduct in the course of obtaining those services in one instance going to the lake in the other instance and purchasing the coffee in the in terms of afterward constructive knowledge we don't have a published decision yet from either really from the supreme court in new jersey that requires actual or constructive knowledge on the in the statute anywhere that's correct your honor and that's why i think that n w was wrong and frankly i was disappointed when we  we rely on frank we rely on turner we rely on but there is a rasher was the owner of the establishment that's correct or out of employee correct we also rely on holmes vs jersey city police department in which mr holmes who's a transgender individual was discriminated against during his detention by the police department after an arrest he was at what's called the d c i which is their processing unit where they really process arrestees and he was subjected to discriminatory conduct by officers employed by the jersey city police department and there is no end holmes is a published decision of the appellate division unlike and w which is unpublished nowhere in homes does the court that actually constructed knowledge on the part of the police department was required for mr holmes to be able to get to a trial to determine whether or not he was subjected to public accommodation discrimination let me ask this question if  superior apply as you say to us applies in production court cases and now we're going to apply to statutes so it's so so it's a little bit of a merger right it's a common law doctrine that we're now going to to graft onto a statute in the statute could have articulated it's own defenses but it didn't we're going to we're potentially you say we can craft this common law defense or theory of vicarious liability onto a statute let me just start with the st question then under respond the superior was the l a p d the manifest intent of the l a p d is to eradicate what the supreme court for chiller called the cancer of discrimination the statute has its own special rules of interpretation it has to be liberally interpreted and so to interpret it in a way that says and less the employer of the person engaging in the act of discrimination has knowledge of their conduct or if we find that every time someone acts outside of the scope of their employment if they engage in cuts both ways right because at one level you can say no employer unless there's an extraordinary example like judge mckee comes up with would ever be within the scope of your employment when an employee discriminates the flip side is if the mere act of discrimination in employment otherwise doing your job and then engaging in some discrimination takes you outside the scope then there's no vicarious liability for the employer in the act would only be against the individual so it where this weird place where the easiest way for you to get redress against the employer is to say this was within the scope because if it was within the scope then you don't just have redress you always have redress and the individual but now you want redress against the employer scope is the easiest way and that's why some courts have i think it very broad readings of scope because that supreme state supreme court policy justification comes in and says well it might what we are going to say that doing this bad act whatever it might be is part of your employment we'd rather you have access to you know the money the ability to pay an award the that the employer has i suppose employees if you lose scope you know you're quite a bit down the road in terms of an action against offensive to just about anyone how how do they serve the purpose of sears those comments don't serve the purpose of sears but he was if for whatever reason he's doing these things while he's trying to make a sale he's there on the floor to talk to customers to interact with customers to make that sound and by the way we don't know yet because we have a good bye to the opportunity to engage discovery we don't know where he lands in the hierarchy of that store b leaving that aside so i guess almost any bad act would be outside the scope any time an employee drops a refrigerator and in injure someone else in the in the store you can say you weren't paid to do that you were just paid t it so it seems that you get to a point where scope is delicate but if you don't win on sco you've got an uphill battle in your redress is only against jeff not against seniors i don't necessarily agree with that judge because if there was a finding that he's outside the scope of his employment simply because he engaged in an act of discrimination then i think we can move to argue whether or not there are any principles such as a parent authority if you're acting with a parent authority or an apparent design to deny or interfere with someone's use and enjoyment of a place of public accommodation then i think there are still avenues to get to the liability of the defendant the same way under women even though it to me is a only one situation women allows for that  maybe the only way you could get to it was this person in some way in charge of the store was the supervisor how would we know judge we weren't allowed discovery were dismissed on top of the sex that you still have a duty to investigate before you file a sears but you skip jaffe you should just sears and say well we didn't have any information or no means of learning information well if you want to sue just jaffe you might have gone to discovery could learn what his role was learn how he fit into the your cart and then is you know typically pleadings are liberally amended i understand that your honor but our interpretation of the statute which is in our view clear on its face the defendant is liable for any act of an employee manager agent superintendent et the motion to dismiss that i would also argue that to run out of the case longer light upon by the district judge all those cases were a summary judgment disposition not a disposition on the pleadings argument here is that of course on pleadings it is possible and i you know who knows what happens maybe we lose but we should have the opportunity to engage in discovery litigate this case on the merits and then get to a later decision  correctly reliant on the only decision out there that's on square on all fours with the underlying facts of this case the legal issues are similar the factual issues are similar and in class the analysis in n w that g  known to the employer the issue here is employer liability the inquiry and w is whether the employer has actual i constructed knowledge of the propensity or past behavior of the  the use of accommodations advantages facilities for privileges to any member of a protected sex in this in the underlying facts of this case the even the complaint itself this is not allege that the behavior of the statements made by the employee attributed to her gender or sex i am not condoning that behavior it it's one let me ask you a question about the come on yes you are you are mobius case to federal court yes your honor we're going to move the case to federal court you have to say that it's plausible that's a standard for the amount of controversy exceeded seventy five thousand dollars do you walk me through exactly how under these facts it's plausible that the amount of controversy in this case exceed seventy five thousand dollars you church years isn't proud of in any way shape or form but how is it that these facts generate in amount in controversy over seventy five thousand uplift in object because that that might be good news or shop in the bank waste of apparently but tell me how you get to seventy four thousand dollars in non economic damages in this case plausibly you look at jury verdicts and you know you won there's the interests there's the cost of sued and more importantly there is the not just the attorney's fees that states that stand on just complete its enhanced return is fees and given the course of the discovery of that scene even through motion practice we tried to  be engaged in mediation significantly that amount but i mean this caused the parties were so far apart because the also the attorney's fees tend to fuel the case and propel the value of cases beyond seventy five thousand dollars so so your number one multiplier what i'm hearing maybe it's not we intend but what i'm hearing is the way that you get over seventy five thousand dollars is the attorney's fees not entirely your honor described as a tory damages and punitive damages which would be the biggest jury verdict in new where a lot of discrimination against discrimination where the sexual harassment gender discrimination particularly in this need to environment we had good faith basis to believe that this amount of the other case was a leas given on how long is it in is is he a supervisor mike we he is that we do not believe he's a supervisory honor and he's not certainly the allegation is he's part of the upper management he's not part of apple management so but when you when th with your opposing counsel here is just strict liability so doesn't that mean that sears is or could be liable for the equitable relief that as you say you could s the strict liability component of the lehman case for equitable relief apply to super in a supervisory sexual harassment case correct and in that particular manner the offending actor list a supervisor involved in an employer employee relationship in this situation the allegation is not even that the impending employee is a supervisor the allegation is that the offending employee belongs to upper management you're the complaint is completely devoid of any allegation that this particular individual supervise that particular store was in charge of employees or was in charge of setting policies or procedures that affected the sales force that not in the complaint judge kugler quite rightly brad this complaint and gave even assume that even all of those allegations are true we moved beyond that and now we look at whether they're the how do you set employer liability in a situation where the comment is one time by a a by an employee not one time in three hundred and three times several times  here sears would have to do something there strictly liable because your don't get into the same types of issues that you do with regard to the nonnegotiable for injunctive relief right it's a different standard right yeah yes for for for it's a different standard for injunctive relief and our position here is that again this is not the situation factually even as lad were strict liability will apply that is not that is not the was from the context of her going into the story looking at refrigerators but if you read the complaint very closely and you read the allegations concerning their interaction with those allegations he would argue did i not even centered on two things not even centered on the sale itself because they were personal in each other but then again doesn't want they never will be so you're asking us to read into the policies running the markets discrimination some limitation w the parameter within which conversation occurs and you're saying well that's not a machine nation would respect the public accommodations access to the premises in this situation those statements did not say unlike turner intranets there were no statements to the fact that you were not welcome here because of your gender or cannot restrict or refuse deny withhold axis based on a protected category here not only were there racial comments made but on the basis of dallas racial comments they said get out of here in kind as your question about scope again because i just i just want to sound let's just say that let's just say the plaintiff and mr jaffe are talking about getting a fridge and none of these comments were made just now are made it's a standard by a fridge transaction do you like this one do you like that one and then all of a sudden a sears says we won't deliver the fridge you know you have to you have to haul it away yourself and this prompts honor and they get to an assault her fist fight for mr jaffe begins to  the point would that after they have negotiated in agreed to buy the fridge and then the only issue is confirmed what will sears deliver it free of charge or not is that in the scope of employment or is that fish like a sears isn't paying mr jaffrey i just kind of scope because this statute needs you to use by it would involve the implication of by carious liability principles under new jersey law so take away the underlying offense the hypotheticals designed to push you on vicarious liability principles in that specific scenario the argument would still be your honor and that we would argue that it would not get engaging into a fistfight with the customers not within your scope of employment really wrapping it up and but but the fist fight a rose out of the non free delivery of a refrigerator which does make people sometimes upset when they find out that they d bought a fridge and now you want a liver so that it feels like that's a little more in the scope your honor in that situation and i'm fairly certain that there are standards and procedures here that that that limit employees from engaging in fistfights or all there's also policies or procedures that prevent this sort of conduct as well so the presence of those d is not despised of the end or the hypothetical i think you are i believe that the body of case law would respect employer liability case took all of the allegations and that's true and then raised the questions do you do these facts these are these allegations plaid i asked you know taking them all t claim of relief or employer liability the judge said no not under the way it's planned and not under the one case and publish you know it may be n w same analogy same facts same concern understood your honor but what plaintiffs arguments here they have yet to propound wind decision wind case that addresses the same issue presented by this one says quote a master is not subject to liability for the torts of his servants acting outside the scope of their employment unless and then in the quote they are there's there's for subsections that's right you know one is the master intended the consequences i don't think that's pled the matter was wrecked negligent or reckless what about that one i don't believe that was played either iwan what about the conduct violated the of the master that was not played either given or what about the last one the servant purported to act or to speak on behalf of the principle there was reliance on the apparent authority and he was aided in accomplishing that work by the existence of the agent relation i'm on the same page or so i'm this is quoting restatement of agency two hundred and nineteen yes as adopted by laymen so i assume a good just to be forthright with my thinking new jersey is about that this restatement of agency at least for torts maybe not for the l e d the question is the servant purported to act or to speak on behalf of the principle that's the st problem and there was a lions on apparent authority or we don't know necessarily what this war means if it's conjunct above everything or just that st and he was aided in accomplishing the tort by the existence of the agency relation yes you're going that no one seems like maybe the allegations get there because probably was aided by the fact that he worked for sears and she came in as a customer and he could talk to her there  again supervisory authority that would be the hook for the apparent authority but but this but but you know i mean the thought is this that's how we even applied it in that case of course but if adopted the restatement which doesn't mention in subsection d supervisory authority it's sufficient with any apparent authority whether or not it's apparent supervisory arguably your honor it can under like it's a strict reading of that but in that in that situation we also believe that even outside the scope of the authority the nature of the statements made by this particular employee i mean the other side of that is that they were really not made for the purpose  provision that says you can still be liable for a matter can still be liable for the torts of a servant outside the scope of their employment in these four circumstances and i'm asking about the th one and it seems like your answer is maybe it could apply in this case and if the answer is maybe then the answer seems to be there's a plausible complaint if i may conclude your honor this might help time is up but however that being said oh the courts of we will submit gates and holding all employers liable for this particular section of the restatement you believe this is not either the intent of what the log instrumentation is in in holding an employe that you jersey law would apply this common law doctrine of vicarious liability to this statutory cause of action if we make that junction then it seems reasons it will create so many conflicting cases so many conflicting policy reason so many click conflicting results from the established body of law when it comes to analysis of employer liability in situations such never looked at anything beyond four hundred dollars if you want to cease and desist it means if you go back i intend to go back and i don't want them to act like this ever again but there's no allegation that there was ever a typical back there's no allegation there was an intent to go back there's an allegation in fact she was children going back i would submit their your honor and i was actually in the new jersey appellate division last week on another component of the holmes matter which goes directly to equitable remedies and that was one of the questions that the court was discussing with the parties in ordering equity which did happen in homes after the trial and discrimination was found by the jury to have occurred for which jersey city was liable  equity wouldn't necessarily just go to the person harmed that the court can fashion an equitable order specifically relating to the conduct of the defendant in order to because it's a public accommodation case protect other members of the public from having to suffer this and so that in order of that latest this complaint was just personal as to the individual correct it's personalized to the individual but the l a p d and of itself one of the reasons that the l a p d has shifting attorneys fees is that individual plaintiffs even their own private personal matters are essentially acting as private attorneys general one of the fundamental underpinnings of the policy of the l a p d is that every time a pla might not otherwise have the means to redress something is able to go on this fee shifting scheme and obtain justice they're doing it not only for themselves but for when all of the public in new jersey but that the hand of equity should be no more equitable really shouldn't be any broader than is necessary to bring closure to an individual case and it sounds like this case has already been leased from an equitable standpoint not a damages standpoint which i still wonder why it's worth so much  is done your client's not going to go back not combine other fruit from sears equities limited to can be no more broader than is necessary to effectuate really and the relief that your client want is money apparently compensatory damages and not compensatory damn and equitable really she put it up to the point is i know she wants it but my point is this once she gets her compensatory or not compensatory damages equitable relief isn't a substitute for that it's when those fail for something that she still needs and judging ambrose point is she still doesn't need she has no interest never returning to seniors so she can be made whole by the substitute really that's afforded by damages that's a point of damages remedies a substitute for what the wise would have done but if she's not clear that she wants to go back then the hand of that would be seems to be stated i would disagree i disagree that the supreme court would find that i don't think dr hammer would have asked his question i understand that you're not in the complaint right it's not in the complaint the complaint certainly is subject to amendment but i would also argue that he  frankly i don't think we need to but certainly it's a better alternative to a dismissal under twelve b six an alternative that if the court really out the facts were insufficient should have done i would argue that the facts are more than sufficient to create a cause of action under public accommodation discrimination and really be but to get back to the equity question i believe that the appellate division and the supreme court would both find that in order to achieve the l e d s purpose its manifest intent equably can and should be broader than does this particular plaintiff get to go back to that store and not be discriminated against again that it is just as mr holmes and we'll find out when the opinion comes down but i suspect that one of the things that's going to be in that opinion is that equity into the a lady is broader because we don't expect mr holmes to be detained again but we expect many other new jerseyans to be detailed when i believe that i will gauge of expectation you either need an allegation that your client wants to go back or you need now a geisha of expected repeatability and you have neither i have no allegation that my client wants to go back but i think we can reasonably read any complaint of a public accommodation discrimination that other members of the public are going to access that place of public accommodation and potentially be subject to  why was it that mr geoffrey wasn't sue would be concerned about divulging attorney client privilege communications and answering that question your honor i can only tell you that may answer that's that's that's a decision that was made but i can't comment further