The court ordered disgruntled residents of the retirement community to stop “Disparag[ing]”The management, then reconsidered

From Fellowship Senior Living, Inc. v. Schenkdecided in 2020 by New Jersey District Court Judge Yolanda Ciccone, but just posted on Westlaw a few days ago:

For your information, this lawsuit stems from the Schenks’ non-payment of monthly residence fees and other recurring service charges beginning in June 2017 and continuing through October of this year. On March 18, 2010, the Schenks entered into the Residence Agreement with Fellowship whereby Fellowship accepted the Schenks as life care residents in Fellowship Village CCRC and agreed to provide them with, among other things, housing, some health care as needed and some meals. (Services”).

As per the agreement, the Schenks agreed to pay Fellowship an initial entry fee, as well as monthly service fees and other related costs such as cable television, carport, telephone and internet connectivity. The parties asserted various claims, counterclaims and third-party claims which were largely resolved by the Schenks’ offer of $140,501.36 in partial settlement of the unpaid amounts owed, as set forth in the November 7 order. 2019 of the Court.

The court issued an order which (among other things) “directs[ed] the Schenks from future disparagement or derogatory communications against Fellowship, its officers, board members, employees or agents,” but then granted the Schenks’ motion to reconsider:

Plaintiff submits that the purpose of this limitation is to ensure civility and respectful speech. Plaintiff explains that over the past nine years, the Schenks have circulated several hundred letters to Fellowship residents, Fellowship’s Board of Directors, and various officials containing false statements intended to destroy the reputation of Fellowship’s CEO. , members of its Board of Directors. Further, the plaintiff asserts that the court order is not an unconstitutional attack on Schenks’ speech.

The New Jersey Constitution guarantees a broad affirmative right to free speech: “Every person may freely speak, write, and publish his feelings on any subject, being liable for the abuse of this right. No law shall be passed to restrict or restrict freedom of speech or of the press.” This warranty is one of the broadest in the nation, and it provides greater protection than the First Amendment….

New Jersey has repeatedly recognized the right to free speech of residents of planned developments that are similarly located to Fellowship. This court agrees that management feedback is an integral part of residents’ lives. It is essential to critique decisions and disseminate information about decisions affecting a resident….

For the foregoing reasons, defendant’s motion for reconsideration is GRANTED in part for the permanent injunction on future disparagement….

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