Fairfax Financial Holdings Limited v. S.A.C. ( 2017 )


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  •                 NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
    
                                         SUPERIOR COURT OF NEW JERSEY
                                         APPELLATE DIVISION
                                         DOCKET NO. A-0963-12T1
    
    FAIRFAX FINANCIAL HOLDINGS
    LIMITED and CRUM & FORSTER
    HOLDINGS CORP.,                          APPROVED FOR PUBLICATION
    
              Plaintiffs-Appellants/              April 27, 2017
              Cross-Respondents,               APPELLATE DIVISION
    
        v.
    
    S.A.C. CAPITAL MANAGEMENT, L.L.C.,
    S.A.C. CAPITAL ADVISORS, L.L.C.,
    S.A.C. CAPITAL ASSOCIATES, L.L.C.,
    SIGMA CAPITAL MANAGEMENT, L.L.C.,
    STEVEN A. COHEN, ROCKER PARTNERS,
    L.P., COPPER RIVER PARTNERS, L.P.,
    DAVID ROCKER, THIRD POINT L.L.C.,
    DANIEL S. LOEB, JEFFREY PERRY,
    INSTITUTIONAL CREDIT PARTNERS, L.L.C.,
    WILLIAM GAHAN,1 JAMES S. CHANOS, and
    KYNIKOS ASSOCIATES, L.P.,
    
              Defendants-Respondents,
    
        and
    
    EXIS CAPITAL MANAGEMENT, INC.,
    EXIS CAPITAL, L.L.C., EXIS
    DIFFERENTIAL PARTNERS, L.P., EXIS
    INTEGRATED PARTNERS, L.P., ADAM D.
    SENDER, ANDREW HELLER, and MORGAN
    KEEGAN & COMPANY, INC.,
    
              Defendants-Respondents/
              Cross-Appellants,
    
    
    1 Defendants Institutional Credit Partners, L.L.C. and William
    Gahan entered into a stipulation of dismissal with plaintiffs
    prior to oral argument.
         and
    
    SPYRO CONTOGOURIS, MAX BERNSTEIN,
    MI4 INVESTORS, L.L.C., MI4
    RECONNAISSANCE, L.L.C., MI4
    LIMITED PARTNERSHIP, JOHN D. GWYNN,2
    and CHRISTOPHER BRETT LAWLESS,
    
              Defendants.
    ______________________________________________
    
               Argued October 17, 2016 – Decided April 27, 2017
    
               Before Judges Fisher, Ostrer and Leone.
    
               On appeal from the Superior Court of New
               Jersey, Law Division, Morris County, Docket
               No. L-2032-06.
    
               Michael J. Bowe (Kasowitz, Benson, Torres &
               Friedman, L.L.P.) of the New York bar,
               admitted pro hac vice, argued the cause for
               appellants/cross-respondents   (Nagel   Rice,
               L.L.P.   and  Kasowitz,   Benson,  Torres   &
               Friedman, L.L.P., attorneys; Bruce H. Nagel,
               Jay J. Rice, Marc E. Kasowitz of the New
               York bar, admitted pro hac vice, Daniel R.
               Benson of the New York bar, admitted pro hac
               vice, and Mr. Bowe, of counsel and on the
               briefs).
    
    
    
    
    2 Defendant John Gwynn passed away in 2009. He had filed a
    counterclaim, which alleged defamation, and the absence of a
    disposition of that claim generated inquiries about finality
    from this court soon after the appeal was filed. We were advised
    that a representative of Gwynn's estate had been substituted in
    his place pursuant to Rule 4:34-1, but that the estate had not
    appeared in response to the claims asserted against him or to
    prosecute his counterclaim. A remand to the trial court resulted
    in the filing of a stipulation of dismissal with prejudice of
    Gwynn's counterclaim. Gwynn's estate has neither appeared nor
    taken any part in this appeal.
    
    
    
                                     2                         A-0963-12T1
    Benjamin   P.  McCallen    (Willkie   Farr   &
    Gallagher, L.L.P.) of the New York bar,
    admitted pro hac vice, argued the cause for
    respondents   S.A.C.    Capital    Management,
    L.L.C., S.A.C. Capital Advisors, L.L.C.,
    S.A.C. Capital Associates, L.L.C., Sigma
    Capital Management, L.L.C. and Steven A.
    Cohen (Parker Ibrahim & Berg, L.L.C. and Mr.
    McCallen, attorneys; Joseph T. Boccassini,
    Martin B. Klotz of the New York bar,
    admitted pro hac vice, and Scott S. Rose of
    the New York bar, admitted pro hac vice, on
    the brief).
    
    Mark S. Werbner (Sayles Werbner, P.C.) of
    the Texas bar, admitted pro hac vice, argued
    the cause for respondents/cross-appellants
    Exis Capital Management, Inc., Exis Capital,
    L.L.C., Exis Differential Partners, L.P.,
    Exis Integrated Partners, L.P., Adam D.
    Sender and Andrew Heller (Walder Hayden &
    Brogan, P.A., and Mr. Werbner, attorneys;
    Richard A. Sayles of the Texas bar, admitted
    pro hac vice, Mr. Werbner, Mark D. Strachan
    of the Texas bar, admitted pro hac vice, and
    Mark Torian, of the Texas bar, admitted pro
    hac vice, of counsel; Rebekah R. Conroy and
    Joseph A. Hayden, Jr., on the brief).
    
    Gavin J. Rooney argued the cause for
    respondents Copper River Partners, L.P.,
    Rocker Partners, L.P. and David Rocker
    (Lowenstein Sandler, L.L.P., attorneys; Mr.
    Rooney, on the brief).
    
    Tibor L. Nagy, Jr., argued the cause for
    respondents Third Point L.L.C., Daniel S.
    Loeb and Jeffrey Perry (Tompkins, McGuire,
    Wachenfeld & Barry, L.L.P. and Matthew S.
    Dontzin (Dontzin Nagy & Fleissig, L.L.P.) of
    the New York bar, admitted pro hac vice,
    attorneys;   Mr.  Dontzin,   Mr.  Nagy,  and
    William McGuire, on the brief).
    
    Thomas F. Campion argued the cause for
    respondent/cross-appellant Morgan Keegan &
    
    
    
                          3                          A-0963-12T1
                Company, Inc. (Greenberg, Traurig, L.L.P.,
                Drinker Biddle & Reath, L.L.P., and Bruce W.
                Collins   (Carrington,   Coleman,   Sloman   &
                Blumenthal,   L.L.P.)   of   the  Texas   bar,
                admitted pro hac vice, attorneys; Philip R.
                Sellinger,   Roger   B.   Kaplan,  Aaron   Van
                Nostrand, Mr. Collins, Diane M. Sumoski of
                the Texas bar, admitted pro hac vice, Todd
                A. Murray of the Texas bar, admitted pro hac
                vice and Bryan A. Erman, of the Texas bar,
                admitted pro hac vice, on the briefs).
    
                Stewart D. Aaron (Arnold & Porter, L.L.P.)
                of the New York bar, admitted pro hac vice,
                argued the cause for respondents Kynikos
                Associates,   L.P.   and  James   S.   Chanos
                (Gibbons, P.C., and Mr. Aaron, attorneys;
                Mr. Aaron, Susan L. Shin of the New York
                bar, admitted pro hac vice, Joel D. Rohlf of
                the New York bar, admitted pro hac vice, and
                Marco J. Martemucci of the New York bar,
                admitted pro hac vice, of counsel; Brian J.
                McMahon and Joshua R. Elias, on the brief).
    
          The opinion of the court was delivered by
    
    FISHER, P.J.A.D.
    
          In   describing   the   adjudication   of    ostensibly     difficult
    
    cases, Justice Holmes observed that "when you walk up to the
    
    lion and lay hold the hide comes off and the same old donkey of
    
    a question of law is underneath."3 This case's leonine demeanor
    
    is   well-deserved.     Discovery   generated     millions   of   pages   of
    
    documents, the parties conducted more than 150 depositions, the
    
    
    
    3 Letter of December 11, 1909 appearing in 1 Holmes-Pollock
    Letters: The Correspondence of Mr. Justice Holmes and Sir
    Frederick Pollock 1874-1932, at 156 (Mark DeWolfe Howe ed.,
    1941).
    
    
    
                                         4                             A-0963-12T1
    joint    appendix    consists   of     nearly   200,000    pages,   and       the
    
    parties' excellent written submissions — succinct though they
    
    are – total nearly 600 pages.4 Nevertheless, as predicted by
    
    Holmes, after grappling with this lion's fearsome hide, we have
    
    found not unfamiliar issues lurking beneath. The sheer size of
    
    this case and the number of issues, however, has frustrated the
    
    normal desire to succinctly describe the implements of decision
    
    and,    in   the   final   analysis,   overwhelmed   our    preference        for
    
    brevity. Consequently, we take the unusual step of presenting,
    
    for the reader's ease, the following table of contents for this
    
    overlength opinion:
    
                                 TABLE OF CONTENTS
    
    I. INTRODUCTION………………………………………………………………………………………………………              8
    
    II. PLAINTIFFS' STORY ……………………………………………………………………………………              9
    
           A. The Plot Alleged ……………………………………………………………………………            10
    
           B. The Suit At Hand ……………………………………………………………………………            21
    
    III. A BRIEF HISTORY OF THE PROCEEDINGS ……………………………………              22
    
    IV. THE ISSUES POSED ………………………………………………………………………………………              25
    
           A. The Viability of the
                Racketeering Claims ………………………………………………………………            26
    
                 1. Plaintiffs' Arguments …………………………………………………           26
    
    
    4 So numerous were the filings in the trial court that the clerk
    was required to assign a second docket number because the
    court's database was unable to accommodate more than 999 filings
    within a single docket number.
    
    
    
                                           5                                A-0963-12T1
        2. The Judge's Decision ……………………………………………………    29
    
        3. Our Holding ……………………………………………………………………………    34
    
             (a) Some General Principles ……………………………    35
    
             (b) Ginsberg's Impact ……………………………………………    36
    
             (c) New Jersey's
             Racketeering Laws ………………………………………………………    40
    
             (d) New York's
             Racketeering Laws ………………………………………………………    46
    
             (e) The Choice ………………………………………………………………    48
    
                  (i) Legislative Directive   …………………   50
    
                       a. Is There an Express
                            Directive? …………………………………    50
    
                       b. Is There an Implied
                            Directive? …………………………………    52
    
                  (ii) Application of the
                  Second Restatement ………………………………………    56
    
                       a. Section 6 …………………………………………    56
    
                       b. Section 145 ……………………………………    61
    
                       c. Specific Tort
                            Principles …………………………………    64
    
                  (iii) Conclusion ……………………………………………    72
    
    B. The Maintainability of the
         Common Law Claims ……………………………………………………………………   73
    
        1. The Statute of Limitations
             Applicable to Plaintiffs'
             Disparagement Claim ………………………………………………     73
    
        2. Dismissal of Plaintiffs'
             Disparagement and Tortious
    
    
    
                              6                          A-0963-12T1
             Interference With Prospective
             Economic Advantage Claims Based
             on the Absence of
             Special Damages ……………………………………………………………    82
    
             (a) Choice of Law ………………………………………………………    82
    
             (b) Common Law Requirements ……………………………    83
    
                  (i) Disparagement …………………………………………    83
    
                  (ii) Tortious Interference
                       With Prospective
                       Economic Advantage …………………………    85
    
             (c) Damages Asserted ………………………………………………    86
    
        3. Summary ………………………………………………………………………………………    88
    
    C. The Personal Jurisdiction Rulings ………………………………   89
    
        1. General Jurisdiction   …………………………………………………   91
    
             (a) Kynikos ………………………………………………………………………    91
    
             (b) Third Point ……………………………………………………………    92
    
        2. Specific Jurisdiction …………………………………………………    95
    
        3. Conspiracy-Based Jurisdiction ……………………………    96
    
        4. Summary ………………………………………………………………………………………    112
    
    D. The Summary Judgments In Favor of
      the SAC Defendants and the
      Rocker Defendants ……………………………………………………………………………   113
    
        1. The SAC Defendants …………………………………………………………    113
    
             (a) The Parties' Arguments ………………………………    113
    
             (b) The Trial Judge's Ruling …………………………    115
    
             (c) Our Holding ……………………………………………………………    117
    
        2. The Rocker Defendants …………………………………………………    123
    
    
    
                              7                          A-0963-12T1
                    (a) The Parties' Arguments ………………………………     123
    
                    (b) The Trial Judge's Ruling …………………………     125
    
                    (c) Our Holding ……………………………………………………………     128
    
          E. Lost Profits and the Elson Reports ……………………………     129
    
              1. General Principles …………………………………………………………      132
    
              2. The Judge's Disposition of
                   the In Limine Motion
                   Regarding Elson's
                   Expert Testimony …………………………………………………………      133
    
              3. Our Ruling ………………………………………………………………………………      136
    
    V. THE CROSS-APPEALS ………………………………………………………………………………………      141
    
          A. Standing …………………………………………………………………………………………………     141
    
          B. First Amendment Grounds …………………………………………………………     145
    
              1. The Parties' Arguments ………………………………………………      145
    
              2. The Trial Judge's Decision ……………………………………      147
    
              3. Our Holding ……………………………………………………………………………      149
    
    V. CONCLUSION …………………………………………………………………………………………………………      155
    
    APPENDIX ………………………………………………………………………………………………………………………      A-1
    
    
                                      I
    
                                INTRODUCTION
    
          In this complex litigation, which was summarily dismissed
    
    in many stages over the course of six years, the Canadian and
    
    New   Jersey   plaintiffs   asserted,   among   other   things,   that
    
    defendants – most of whom were located in New York – engaged in
    
    
    
                                      8                          A-0963-12T1
    a   racketeering     enterprise       that    caused   plaintiffs      billions   of
    
    dollars in damages. That claim required a careful consideration
    
    of choice-of-law principles because New Jersey recognizes that a
    
    plaintiff may maintain a private civil RICO cause of action and
    
    New York doesn't. We agree the trial court correctly chose and
    
    applied New York law in dismissing the RICO claim. We reject,
    
    however, the trial court's determination that plaintiffs' common
    
    law causes of action were governed by a New York statute of
    
    limitations and hold instead that our own statute of limitations
    
    applies; any past uncertainty about that evaporated with the
    
    illumination provided by our Supreme Court's recent decision in
    
    McCarrell v. Hoffmann-La Roche, Inc., 
    227 N.J. 569
     (2017). We
    
    also conclude that New York substantive law applies and limits –
    
    but   does   not    eliminate     –    plaintiffs'     common    law    causes    of
    
    action. Consequently, we affirm in part, reverse in part, and
    
    remand for further proceedings.
    
    
                                             II
    
                                  PLAINTIFFS' STORY
    
          Because      our   Brill5   standard      governed   the   trial     court's
    
    disposition of the many issues presented, as it also guides our
    
    review, Townsend v. Pierre, 
    221 N.J. 36
    , 59 (2015), we examine
    
    5 Brill v. Guardian Life Ins. Co. of Am., 
    142 N.J. 520
    , 540
    (1995).
    
    
    
                                             9                                 A-0963-12T1
    the disposition of plaintiffs' claims by assuming the truth of
    
    their allegations and by giving plaintiffs the benefit of all
    
    reasonable   inferences.   Consequently,   our   description   of    the
    
    occurrences that triggered this suit are based on plaintiffs'
    
    allegations and should not be construed as our acceptance of
    
    their truth; in short, we only assume their truth. "I cannot
    
    tell how the truth may be; I say the tale as 't was said to me."
    
    Sir Walter Scott, The Lay of the Last Minstrel, canto II, st. 22
    
    (1805).
    
    
                           A. The Plot Alleged
    
        We are told plaintiff Fairfax Financial Holdings Limited
    
    (Fairfax) is a Canadian insurance holding company located in
    
    Toronto, and Crum & Forster Holdings Corp. (C&F) is a New Jersey
    
    corporation headquartered in Morristown. In 1998, Fairfax sought
    
    to rescue C&F from failure by purchasing it for hundreds of
    
    millions of dollars. C&F's turnaround, however, took longer and
    
    proved more difficult than Fairfax originally anticipated. Chief
    
    among its difficulties was what plaintiffs have claimed is a
    
    "racketeering scheme" designed to "kill" them both.
    
        Plaintiffs assert they were the victims of a "bear raid,"
    
    by which short-sellers borrow securities, sell them, and then
    
    drive the price of that stock down through lies and other forms
    
    of market manipulation. See, e.g., Robert G. DeLaMater, Target
    
    
    
                                     10                            A-0963-12T1
    Defensive Tactics As Manipulative Under Section 14(e), 84 Colum.
    
    L. Rev. 228, 244 n.114 (1984). The short-seller then repurchases
    
    the shares at the lower price – or not at all if the prey
    
    becomes bankrupt and its shares are rendered worthless – and
    
    profits from the difference between the higher price at which it
    
    sold the borrowed shares and the lower price it pays for the
    
    shares it returns to the lender. Because short-selling has its
    
    risks – the short-seller must pay interest and post collateral
    
    on the borrowed shares that may prove costly – a "short squeeze"6
    
    quickly causes an increase in the losses suffered.
    
          Plaintiffs     claim     the    short-sellers       here   were    shorted   so
    
    heavily that the way to a profit and the avoidance of massive
    
    losses    required      that   they   cause     Fairfax    to    fail.   Plaintiffs
    
    quote the statements of various defendants that they intended to
    
    "kill    this   company,"      "crush    this     company,"      "drive    a   stake
    
    through that pig Fairfax's heart," and "tak[e] this baby down
    
    for     the   count."    Plaintiffs      also    quote     various       defendants'
    
    statements that the alleged plan involved "get[ting] them where
    
    they eat, like the credit [analysts] and [stock] holders" and
    
    "stop [their] being able to write biz"; in short, they claim the
    
    short-sellers were intent on inflicting "death by a thousand
    
    
    6 The profitability of a short position fluctuates with changes
    in the values of the borrowed shares. A sudden increase in the
    cost of borrowing shares is known as a "short squeeze."
    
    
    
                                             11                                 A-0963-12T1
    knives"     by        getting       Fairfax's        subsidiaries     "downgraded"           and
    
    having    C&F     go     into       "runoff,"    causing       a   loss    of    rating      and
    
    rendering the company "pretty much worthless."
    
           Plaintiffs claim that, so motivated, defendants engaged in
    
    a RICO enterprise. See Boyle v. United States, 
    556 U.S. 938
    ,
    
    948, 
    129 S. Ct. 2237
    , 2245, 
    173 L. Ed. 2d 1265
    , 1277 (2009)
    
    (defining        such        an     enterprise       as   "a   continuing         unit    that
    
    functions        with     a       common   purpose"       that     "need        not   have     a
    
    hierarchical          structure       or   a   'chain     of   command'").        Plaintiffs
    
    allege    that         all        defendants     were     associated       in     this    RICO
    
    enterprise, and they described in detail the involvement of the
    
    dramatis personae, which we summarize in the following brief
    
    way:
    
                          defendant Morgan Keegan & Company,
                           Inc., a registered broker-dealer that
                           provides investment services to hedge
                           funds and others; defendant John Gwynn
                           was a Morgan Keegan analyst. According
                           to plaintiffs, Morgan Keegan dissemin-
                           ated more than sixty materially false
                           and misleading research reports on
                           Fairfax and C&F that were authored by
                           Gwynn, and Morgan Keegan and Gwynn also
                           uttered numerous disparaging communica-
                           tions;
    
                          defendant S.A.C. Capital Management,
                           L.L.C.,    S.A.C.   Capital   Advisors,
                           L.L.C.,   S.A.C.   Capital  Associates,
                           L.L.C., and Sigma Capital Management,
                           L.L.C., are alleged to be hedge funds
                           controlled by defendant Steven A. Cohen
                           (collectively "the SAC defendants");
    
    
                                                    12                                    A-0963-12T1
                    according   to   plaintiffs,   the   SAC
                    defendants   engaged   defendant   Spyro
                    Contogouris on a similar past bear raid
                    of a different company and, according
                    to plaintiffs, similarly engaged him to
                    do the same with plaintiffs. The SAC
                    defendants were the largest investors
                    in the Exis defendants7 and non-party
                    Bridger Capital Management, which both
                    possessed an economic interest in the
                    alleged scheme.
    
                   Contogouris was, according to plain-
                    tiffs, an enterprise operative who
                    posed   as   an   independent   research
                    analyst and disseminated disinforma-
                    tion,   instigated    a   Securities   &
                    Exchange Commission investigation, and
                    generated negative news stories about
                    plaintiffs8 via the so-called "MI4"
                    reports.9
    
                   The Exis defendants were alleged to be
                    hedge funds that secured a substantial
                    short position in Fairfax. They and
                    their   chief   executive   and   chief
                    operating officers, defendants Adam D.
                    Sender and Andrew Heller, respectively,
                    were alleged to have maintained the
                    closest relationship with Contogouris;
                    they allegedly provided him with office
    
    
    7 Namely, Exis Capital Management, Inc., Exis Capital, L.L.C.,
    Exis Differential Partners, L.P., and Exis Integrated Partners,
    L.P.
    
    8 Adding to the drama, plaintiffs allege Contogouris acted
    through the use of aliases, such as "Monsieur Skaramanga," a
    James Bond villain.
    
    9 The names of these reports refer to defendants MI4 Limited
    Partnership, MI4 Reconnaissance L.L.C., and MI4 Investors,
    L.L.C. (the MI4 defendants), all entities controlled by
    Contogouris.
    
    
    
                                    13                         A-0963-12T1
        space, assistants and a most       sub-
        stantial compensation package.
    
       defendants Rocker Partners, L.P., and
        Copper   River    Partners,  L.P.,   are
        alleged to be hedge funds based in
        Millburn primarily owned and managed by
        defendant David Rocker (collectively,
        the Rocker defendants); according to
        plaintiffs,    the    Rocker  defendants
        worked closely with defendant Kynikos
        Associates, L.P., Morgan Keegan and
        other members of the alleged enterprise
        in shorting Fairfax at the scheme's
        inception.
    
       defendant Institutional Credit Part-
        ners, L.L.C. (ICP) is a financial firm
        alleged to have paid and worked closely
        with Contogouris, and to have traded in
        advance of negative events allegedly
        generated by Contogouris. According to
        plaintiffs, ICP directly disseminated
        false claims about them; ICP employees
        are alleged to have worn surgical
        gloves to avoid leaving fingerprints on
        materials they transmitted, and William
        Gahan, an ICP credit analyst, obtained
        the bail bond that secured Conto-
        gouris's release after he was arrested
        by the Federal Bureau of Investigation
        on an unrelated fraud charge months
        after this suit was filed.
    
       defendant Kynikos Associates, L.P. – a
        limited partnership organized in 1985
        in Delaware with its principal place of
        business in New York – is an investment
        advisor and management company special-
        izing in short-selling; it has managed
        over   $1  billion   for  its  clients.
        Plaintiffs alleged that Kynikos and its
        founder and president, James S. Chanos,
        participated in the enterprise in that
        they worked closely with other defen-
        dants, including Contogouris.
    
    
                        14                         A-0963-12T1
                     defendant Christopher Brett Lawless, a
                      New   Jersey    resident,   worked  as   a
                      research analyst for Fitch Ratings in
                      New York City and for the Center for
                      Financial Research and Analysis in
                      Maryland.    Lawless   allegedly   tutored
                      Contogouris to enable him to pose as a
                      research     analyst     and    thereafter
                      continued to collaborate with Morgan
                      Keegan, Contogouris and those paying
                      Contogouris.
    
                     defendants Third Point, L.L.C., is an
                      investment   management   firm   created
                      under   the   laws   of   Delaware   and
                      headquartered in New York. During the
                      times in question, Third Point provided
                      management services to several invest-
                      ment funds that traded in Fairfax
                      securities. Defendant Daniel S. Loeb is
                      the founder and managing member of
                      Third Point, and defendant Jeffrey
                      Perry was a senior analyst.
    
        According      to    plaintiffs,       in   2002,     the   SAC   defendants,
    
    Kynikos, the Rocker defendants, and others, were collaborating
    
    and either aggressively shorting or preparing to short Fairfax.
    
    Plaintiffs   claim      that   C&F   had    begun    to    favorably      turn   its
    
    position around at that time, so defendants' enterprise sought a
    
    "negative    catalyst"       to   drive     down    C&F's       price,    and     the
    
    enterprise   began      to     "educate[]       rating    agencies       and    other
    
    research analysts about their negative views."
    
        On December 18, 2002, the day after deciding to cover their
    
    position, the SAC defendants learned that Gwynn of Morgan Keegan
    
    was about to issue a report that Fairfax and its subsidiaries
    
    
                                           15                                  A-0963-12T1
    were    under-reserved    by    billions     of   dollars    and   effectively
    
    insolvent. Gwynn tipped off Kynikos and faxed an outline of the
    
    issues.   Upon   receiving      this   tip,    the   SAC    defendants   began
    
    communicating directly with Gwynn, and Kynikos and Third Point
    
    thereafter traded in advance of the report based on the tipped
    
    information.10
    
           Morgan Keegan published its report on January 17, 2003.
    
    Plaintiffs    allege     that   Morgan      Keegan   falsely   claimed     that
    
    Fairfax had overstated its equity by more than $5 billion and
    
    that Morgan Keegan's alleged false claim devastated Fairfax's
    
    stock price, which fell thirteen percent in one day and further
    
    in the days that followed. Two weeks later, Morgan Keegan issued
    
    a second report acknowledging it "possibly" double-counted $2
    
    billion in purported subsidiary liabilities, including at C&F.
    
    As a result, the stock price recovered somewhat but remained
    
    down.
    
    
    
    
    10 Plaintiffs claim that Kynikos re-shorted over $5 million in
    shares just before the first report. And, after not shorting for
    four months, Third Point sold short $1,500,000 in shares the day
    before publication. The SAC defendants did not cover its short
    positions by year-end as originally planned but completed their
    cover after the report was issued and the stock price dropped
    sharply.   Plaintiffs assert that many of the trades involving
    these and other parties or accounts controlled by the enterprise
    members violated insider-trading laws and support their RICO
    claim.
    
    
    
                                           16                             A-0963-12T1
          According to plaintiffs, enterprise members traded heavily
    
    on   Morgan      Keegan's    tips    concerning        its     initial    report.    In
    
    exchange, Morgan Keegan benefited from these tips by way of
    
    commissions through referred trades, and with the expectation of
    
    greater future benefits. According to plaintiffs, Morgan Keegan
    
    understood their big payoff – what a Morgan analyist referred to
    
    as "our 7-8 digit trade!!" – would come when Fairfax's "stock
    
    goes to zero." Consequently, for the next four years, Morgan
    
    Keegan published more than sixty research reports that portrayed
    
    plaintiffs    and    their    affiliates        as    "an    insolvent,     Enron-like
    
    fraud[]";     this      disinformation      was,      according      to   plaintiffs,
    
    orchestrated,       and   Morgan     Keegan     was    urged    to   make    sure   its
    
    reports were "really negative." Morgan Keegan communicated in
    
    other ways that Fairfax and its executives were "crook[s]" and
    
    "felons"    who    manipulated       financial       information     to   "mak[e]    it
    
    look like they have a profit." Plaintiffs claim Morgan Keegan
    
    knew of the falsity of its disseminated statements.
    
          Plaintiffs allege that, despite the inflicted harm, their
    
    turnaround was progressing, causing defendants' enterprise to
    
    either    quit    its     position    at   a    loss    or     increase     the   short
    
    position and intensify their efforts. Information amassed in the
    
    joint appendix evokes scenes from Oliver Stone's 1987 film, Wall
    
    Street.     One hedge fund manager – defendant Adam Sender, who was
    
    
    
    
                                               17                                 A-0963-12T1
    affiliated with the Exis defendants – explained to Contogouris
    
    that he "want[ed] [Prem Watsa's11] head in a box," and another
    
    viewed the dissemination of negative reports as the equivalent
    
    of needing to "keep . . . this gun loaded with bullets" and
    
    "eventually this pig will roll over and die." Meanwhile, to add
    
    content to the negative reports, Morgan Keegan allegedly fed
    
    Contogouris with the false claims that: Fairfax was disguising
    
    billions       in    debt   as     reinsurance;         Fairfax     was     turning      its
    
    investment          subsidiaries        –    with     the   use     of    "[s]moke       and
    
    [m]irrors" – into "an illegal enterprise"; and that Watsa was
    
    "transferring         his   personal          holdings      into    asset     protection
    
    schemes that he thinks will be safe from regulators."
    
           Over     the     course     of       nearly    two    years,      Contogouris        –
    
    allegedly      at     the   direction        and     with   the    support    of    Morgan
    
    Keegan, Lawless, the Exis defendants, Third Point and Kynikos –
    
    disseminated false claims to the FBI, federal prosecutors, the
    
    SEC,     the    media,      ratings         agencies,       research      analysts       and
    
    investors, that Fairfax was engaged in an Enron-like fraud.12 In
    
    June 2005, the SAC defendants re-shorted Fairfax – a month after
    
    
    11   Watsa is Fairfax's chairman and chief executive officer.
    
    12   Contogouris   anonymously   created   a    website   called
    Premwatsa.com, which compared Fairfax to the disgraced Enron and
    Watsa to Enron's CEO, Kenneth Lay. Much has been written about
    the Enron debacle. See, e.g., Kurt Eichenwald, Conspiracy of
    Fools: A True Story (2005).
    
    
    
                                                  18                                   A-0963-12T1
    Contogouris's approach to the FBI that resulted in the service
    
    of   SEC   subpoenas   on   Fairfax   in     September   2005.       Three    weeks
    
    earlier, the investors of Exis, of which SAC was the largest,
    
    were tipped off that "subpoenas from the regulators . . . should
    
    be announced in the next three weeks." The Exis defendants and
    
    the SAC defendants increased their short positions in advance of
    
    the subpoenas.
    
          Plaintiffs    further   allege,      and   refer   to    the    voluminous
    
    record in support, that Contogouris provided false and negative
    
    information    to   various   media    and    targeted    as    part    of    this
    
    campaign: investors, institutions and research analysts; rating
    
    agencies13; Fairfax executives and staff14; and even to Watsa's
    
    parish pastor.15 Contogouris allegedly made harassing telephone
    
    calls to Watsa's home and office at night to "rattle his cage."
    
    Plaintiffs    assert   that    Contogouris       kept    Morgan      Keegan     and
    
    Lawless advised of his activities, and Morgan Keegan reported
    
    these activities to other enterprise members.
    
    
    
    13 Contogouris sent his FraudFacts report to Standard & Poor's
    and A.M. Best.
    
    14 Plaintiffs allege that Contogouris sent, through the use of
    aliases, threatening emails to Watsa's staff in an effort to
    find "a way in" via a staff member willing to be a mole.
    
    15 Contogouris allegedly sent information to Watsa's parish
    pastor, warning that Watsa, who handled the church's investment
    fund, might defraud the church.
    
    
    
                                          19                                 A-0963-12T1
          According     to   plaintiffs,         the    enterprise       members   learned
    
    during the Summer of 2006 that the FBI and federal prosecutors
    
    intended to expand their investigation into Fairfax in light of
    
    Contogouris' disseminations, and they also learned that The New
    
    York Post was about to publish a series of negative stories.
    
    Contogouris    used      code     in   communicating          this   information       to
    
    enterprise members, referring to the FBI as the "meteorologist,"
    
    The   New   York   Post       reporter       as   the   "Postman,"      and    what    he
    
    expected to imminently occur as the "Hurricane," which was due
    
    in August. Sender encouraged others to short the stock and the
    
    SAC defendants, which allegedly were in contact with Sender and
    
    Contogouris "all the time" during this period, increased their
    
    short position in June 2006. To fuel the flames, rumors were
    
    allegedly    spread      on    June    22    and    23,   2006,      that   Watsa     had
    
    transferred his assets into his wife's name and that he fled the
    
    country as the Royal Canadian Mounted Police raided Fairfax's
    
    offices.
    
          The day after these rumors started, the Exis defendants
    
    rewarded    Morgan       Keegan       with    substantial       trading       business.
    
    Fairfax's   stock     price     plummeted         for   two   days    before    Fairfax
    
    issued a statement debunking the rumors.
    
    
    
    
                                                 20                                A-0963-12T1
                                B. The Suit At Hand
    
         Plaintiffs commenced this lawsuit on July 26, 2006. Their
    
    complaint was filed just before what they allege were to be the
    
    final   steps   in   the    enterprise's      scheme    but   not    before    they
    
    allegedly    suffered      significant       monetary     damages.    Plaintiffs
    
    claim Fairfax suffered damages to its assets and equity, as well
    
    as those of its subsidiaries, in the billions of dollars.16
    
         Particularly relevant in light of the issues on appeal,
    
    plaintiffs   claim    C&F    incurred    a    loss   of   nearly     $1   billion,
    
    including: (1) approximately $200,000,000 in capital costs and
    
    interest incurred in and paid from New Jersey in the form of
    
    having to raise capital not otherwise needed; (2) lost profits
    
    estimated at $545,000,000; and (3) increased costs and expenses
    
    in the form of higher directors and officers (D&O) insurance
    
    premiums with far less coverage, and greater legal, accounting,
    
    
    
    
    16 The parties even dispute the purpose of this suit. Morgan
    Keegan contends that Fairfax has been a "troubled company for
    years," and launched, as part of a "public relations campaign,"
    this   "sensational"   RICO  suit,   claiming   $6  billion   in
    compensatory damages, which, if trebled as permitted by New
    Jersey law, would result in "a headline-grabbing $18 billion,"
    caused by "a veritable cabal of short sellers and research
    analysts bent on destroying the company" for their own profit.
    The matter having come before us by way of summary rulings in
    favor of all defendants, we place no reliance on Morgan Keegan's
    argument about the motivation of this suit and assume, without
    deciding, the bona fides of plaintiffs' claims.
    
    
    
                                            21                                A-0963-12T1
    and administrative costs to deal with the enterprise's alleged
    
    wrongful actions.
    
    
                                           III
    
                                  A BRIEF HISTORY
                                 OF THE PROCEEDINGS
    
         As mentioned, plaintiffs commenced this action in 2006. A
    
    second amended complaint was filed in 2007 and a third in 2008.
    
    Plaintiffs     alleged     defendants'       manipulations      violated      New
    
    Jersey's    RICO   statute    and    gave    rise   to   several    common    law
    
    claims,     specifically     commercial       or    product    disparagement,
    
    tortious     interference     with     prospective       economic    advantage,
    
    tortious interference with contractual relationships, and civil
    
    conspiracy.
    
         On July 11, 2008, the Rocker defendants moved for summary
    
    judgment,     asserting     that     insufficient    evidence       existed    to
    
    establish that it participated in the alleged conspiracy. The
    
    judge then presiding over the matter17 granted, on September 25,
    
    2008, the Rocker defendants' application, but did so without
    
    prejudice.
    
    
    
    
    17Numerous judges presided over this leviathan of a case during
    its long life in the trial court. To avoid confusion, we make no
    attempt to distinguish which of the able judges ruled on which
    motion. Regardless of the outcome of the many issues raised, we
    commend all these judges for their efforts.
    
    
    
                                           22                               A-0963-12T1
          On May 5, 2011, the SAC defendants sought summary judgment
    
    on   grounds    substantially         similar        to    those     that      the    Rocker
    
    defendants     had    successfully      advanced,          namely,      that      there     was
    
    insufficient     evidence        to    demonstrate           the       SAC     defendants'
    
    participation        in   the   alleged    scheme          against         plaintiffs.       On
    
    September 12, 2011, the court granted the SAC defendants' motion
    
    for summary judgment.
    
          Meanwhile, Kynikos moved for summary judgment, claiming our
    
    courts could not assert personal jurisdiction over it. Third
    
    Point and ICP also moved for summary judgment on the same or
    
    similar grounds. Kynikos and Third Point also sought a choice-
    
    of-law     determination,       arguing        New        York   law       both      governed
    
    plaintiffs'     conspiracy       claims    and        required         a     dismissal      of
    
    plaintiffs' RICO claims. And, in the same period of time, the
    
    Rocker defendants sought a determination that the September 25,
    
    2008 grant of summary judgment "without prejudice" be converted
    
    to a dismissal "with prejudice."
    
          On    December      23,   2011,     the        court       granted       the    Rocker
    
    defendants' application to convert its prior determination to
    
    summary judgment with prejudice and dismissed the third amended
    
    complaint    against      Kynikos,     Third     Point       and    ICP      for     lack    of
    
    personal jurisdiction.
    
          Many more motions followed.
    
    
    
    
                                              23                                         A-0963-12T1
         On    April     13,    2012,    Morgan    Keegan,      Lawless,    the   Exis
    
    defendants and the MI4 defendants filed a consolidated motion
    
    for summary judgment with respect to all the common law claims
    
    plaintiffs had asserted against them.18 And, on April 20, 2012,
    
    plaintiffs cross-moved for reconsideration of the court's prior
    
    dismissal of the Rocker defendants with prejudice.
    
         On May 11, 2012, the trial court granted partial summary
    
    judgment in favor of Lawless. Finding New York law governed
    
    plaintiffs' racketeering allegations, the trial court dismissed
    
    plaintiffs' RICO claims. And plaintiffs' reconsideration motion
    
    of the with-prejudice dismissal of the claims against the Rocker
    
    defendants was denied.
    
         In June 2012, the trial court heard and summarily dismissed
    
    plaintiffs'       claim    of   tortious     interference     with     prospective
    
    economic advantage but sustained plaintiffs' remaining common
    
    law claims.
    
         Also in June 2012, Morgan Keegan moved for partial summary
    
    judgment, seeking dismissal of plaintiffs' disparagement claim
    
    based on its alleged untimeliness; the motion was denied in
    
    August    2012.    Later    that    month,    the   judge   denied     plaintiffs'
    
    request to reconsider its ruling that New York law controlled
    
    
    18Namely, tortious interference with contractual relationships,
    tortious interference with prospective economic advantage, and
    civil conspiracy.
    
    
    
                                            24                                A-0963-12T1
    plaintiffs' racketeering and conspiracy claims. The judge also
    
    granted Morgan Keegan's application for reconsideration of the
    
    denial of summary judgment on the tortious-interference-with-
    
    contract claim but rejected Morgan Keegan's assertion that a
    
    one-year        statute    of       limitations         applied      to        plaintiffs'
    
    disparagement claim.
    
        On         September   5,       2012,     plaintiffs         stipulated       to     the
    
    dismissal of Lawless without prejudice. On September 11, 2012,
    
    in accordance with a partial settlement agreement, the judge
    
    signed     a    consent    order,       which      dismissed      without        prejudice
    
    plaintiffs' claims against Contogouris and the MI4 defendants.
    
    And, on September 12, 2012, the judge entered final judgment
    
    dismissing the entirety of the remainder of plaintiffs' third
    
    amended    complaint,      finding      "a    complete      absence       of    proof"    of
    
    proximately-caused damages.
    
        Plaintiffs        filed     a    notice       of   appeal.    Cross-appeals        were
    
    also asserted.
    
    
                                                 IV
    
                                        THE ISSUES POSED
    
        In appealing the summary dismissal of its causes of action,
    
    plaintiffs argue the trial court erred: (a) in dismissing their
    
    RICO claims by applying New York rather than New Jersey law; (b)
    
    in dismissing certain of their common law claims by applying New
    
    
    
                                                 25                                   A-0963-12T1
    York's statute of limitations rather than New Jersey's; (c) in
    
    dismissing the claims against Kynikos, Third Point and the ICP
    
    defendants19 for lack of personal jurisdiction; (d) in granting
    
    summary judgment in favor of both the SAC defendants and the
    
    Rocker defendants; and (e) in excluding the expert opinion of
    
    Craig Elson on damages that plaintiffs intended to elicit at
    
    trial, thereby shutting the door on any trial at all.
    
    
                             A. The Viability of
                           The Racketeering Claims
    
         In reviewing the disposition based on the trial court's
    
    application   of   choice-of-law   principles,     we   describe    (1)   the
    
    parties'   arguments   and   (2)   the   judge's    decision,      and    then
    
    express (3) our agreement with the trial court's disposition of
    
    the RICO claim.
    
    
                           1. Plaintiffs' Arguments
    
         Plaintiffs claim the trial court erred by dismissing their
    
    RICO claims through application of New York law. Indeed, they
    
    argue that choice-of-law questions do not even arise when a
    
    matter falls within the intended scope of a New Jersey statute;
    
    that is, they claim our Legislature intended to provide a remedy
    
    
    
    19As noted earlier, plaintiffs and the ICP defendants resolved
    their differences shortly before oral argument took place in
    this court.
    
    
    
                                       26                               A-0963-12T1
    for every New Jersey domiciliary harmed by a RICO violation,
    
    which   the     law       defines    as    harm    arising    from       conduct       of    a
    
    prohibited         kind    that     satisfies     the    enactment's          territorial
    
    predicates,        with    no    distinction      between    criminal         and   private
    
    prosecutions. And they argue there was sufficient conduct by
    
    defendants      that       either    occurred     within     or    had    a    sufficient
    
    effect in New Jersey to satisfy the statute, even apart from the
    
    conspiracy, which by itself – in their view – involved enough
    
    activity   within          New    Jersey   to     satisfy    the     Criminal        Code's
    
    definition of such an offense.
    
        Plaintiffs argue further that the court had no basis for
    
    "inventing" or "importing" common law principles to impose the
    
    territorial limitations on jurisdiction over traditional torts,
    
    noting that the limitations were not included in either the RICO
    
    statute    or       in     the    Criminal      Code's     general       territoriality
    
    statute.      On     the    contrary,      they    claim     the     Legislature          has
    
    specified that the RICO provisions for civil remedies must be
    
    liberally construed to affect that enactment's remedial purpose
    
    and that all remedies be cumulative to one another and to other
    
    remedies at law.
    
        In addition, plaintiffs argue that the trial judge erred by
    
    failing to recognize there was no policy conflict between New
    
    Jersey and New York law because both states' enactments "provide
    
    
    
    
                                                 27                                     A-0963-12T1
    civil remedies to deter and compensate for" the same proscribed
    
    conduct.      And they argue New Jersey's allowance of private civil
    
    remedies does not constitute a different approach toward the
    
    shared       goal    of     deterring    racketeering,        "only      a     different
    
    judgment about how best to use each state's judicial system to
    
    do    so."    Although       both    states     seek   to    vindicate         the     same
    
    policies, plaintiffs argue New Jersey's broader remedies made it
    
    the better vehicle for achieving that goal, and thus the correct
    
    law to apply.
    
          Plaintiffs contend further that, even if New Jersey and New
    
    York law generated a true conflict, section 6 of the Restatement
    
    (Second) of Conflict of Laws (1971) (Am. Law Inst., amended
    
    1988),20 provided an independent basis for applying New Jersey
    
    law   to     the    RICO     claims.    They     assert     section      6     warranted
    
    application of New Jersey law due to this State's interest in
    
    protecting      C&F,       which    sustained   injuries      at   its       New     Jersey
    
    headquarters,        and     because     New    Jersey      had    an    interest         in
    
    protecting         other    in-state     businesses,        such   as        the     rating
    
    agencies and business news organizations that the enterprise is
    
    
    
    20Our many references to the Restatement (Second) of Conflict of
    Laws shall hereafter in the text be "Second Restatement" and in
    citations be "Restatement (Second)," with reference to a
    specific section or comment. To avoid confusion, we will provide
    greater specificity when referring to the Restatements dealing
    with torts and contracts that are cited as well.
    
    
    
                                              28                                       A-0963-12T1
    alleged to have deliberately misled in order to promote their
    
    scheme.   Plaintiffs    contend      they    reasonably     expected    the
    
    protection of New Jersey law to the extent of their business
    
    affecting this State, whereas defendants had no expectation that
    
    their misconduct would be any less violative of New York law
    
    than it would of New Jersey law.       In addition, they contend that
    
    failing to apply New Jersey's RICO statute as intended would
    
    inject an unanticipated and unneeded balancing test between New
    
    Jersey law and out-of-state law.
    
         Finally,   plaintiffs   argue    that   the   Second   Restatement's
    
    section 145 standards favored application of New Jersey law due
    
    to the predominance of this case's contacts with New Jersey.
    
    They call New Jersey the situs of "the injury" because C&F had
    
    its domicile and principal place of business here, and they note
    
    that several enterprise members were New Jersey residents or
    
    engaged in enterprise activity within the State.
    
    
                           2. The Judge's Decision
    
         In May 2012, the trial judge determined that New York's
    
    local law – that is, the law that applied within New York before
    
    any consideration of choice-of-law principles21 – applied to the
    
    
    
    21 The judge's definition of "the local law" accords with the
    Second Restatement, which describes "the local law" as the law
    that would apply if all parties and relevant events were within
                                                        (continued)
    
    
                                      29                              A-0963-12T1
    RICO claims and, accordingly, compelled the entry of summary
    
    judgment in defendants' favor. He first found an actual conflict
    
    existed – because New Jersey recognizes a private civil RICO
    
    action and New York doesn't – and observed that a statutory
    
    mandate for New Jersey jurisdiction over private civil claims
    
    would have precluded a choice-of-law analysis here, but then
    
    found no such mandate existed. The judge explained that RICO's
    
    own territoriality provision was expressly limited to criminal
    
    cases, and that the Legislature did not intend civil RICO claims
    
    to have the same jurisdictional reach or to be exempt from the
    
    "accepted, traditional common law principles of jurisdiction"
    
    for civil claims, which included application of choice-of-law
    
    principles.
    
        The trial judge recognized that the first step in a choice-
    
    of-law analysis was to determine whether any state was presumed
    
    to satisfy the Second Restatement's most fundamental touchstone
    
    of being the state with "the most significant relationship" to
    
    the matter and found that, though choice-of-law principles might
    
    deem C&F's loss of customers to have been an injury sustained in
    
    
    
    (continued)
    one state, without application of that state's choice-of-law
    rules.   Restatement (Second), supra, § 145 cmt. h and § 4. In
    this context, a reference to "state law" without qualification
    means the entire body of a state's law, including its choice-of-
    law rules. Ibid.
    
    
    
                                   30                       A-0963-12T1
    New Jersey, it was "improper" to presume New Jersey jurisdiction
    
    on that basis, because C&F was "a minor player in this matter,"
    
    there   was   a   "complex     interrelationship     between      [the]
    
    plaintiffs," and the RICO allegations here were broader and more
    
    complex than a particular injury to one subsidiary.
    
         According to the trial judge, the "most direct consequence"
    
    of the alleged RICO enterprise was to decrease the market prices
    
    of plaintiffs' securities, a claim for which Fairfax was the
    
    "lead" plaintiff. All the other alleged injuries caused by the
    
    enterprise, namely, the increase in "capital costs," the costs
    
    of responding to the SEC investigation, and the increased legal
    
    and accounting costs, "were a consequence of that deflation."
    
    The "most direct" injury and its derivatives arose from the
    
    alleged enterprise activity that involved the financial markets
    
    and financial news media and, as the judge observed, "[t]he
    
    financial markets, the news media and the parties are clearly
    
    based predominantly in New York." Accordingly, the New Jersey
    
    connections to the RICO claims – namely, the domiciles of C&F,
    
    A.M. Best,22 and Lawless – did not suffice to give New Jersey the
    
    "most significant relationships" to a RICO enterprise as broad
    
    
    
    
    22 A.M. Best is   a major    rating   company   headquartered in     New
    Jersey.
    
    
    
                                     31                            A-0963-12T1
    and complex as alleged. Consequently, the trial judge found that
    
    New York's local law presumptively applied.
    
          As for the other section 145 factors, the judge found that
    
    the   "vast      majority"      of    the     alleged      misconduct      manifestly
    
    occurred   in     New   York    and   only       a   fraction    was     committed      by
    
    Lawless, the one defendant located in New Jersey. The judge
    
    determined that all other enterprise members were domiciled or
    
    incorporated elsewhere and conducted their activities elsewhere,
    
    and, also, that the enterprise members did not have a prior
    
    relationship, much less one centered in New Jersey. Furthermore,
    
    Fairfax    and    its   other    main       United      States   operating       Odyssey
    
    subsidiaries,23       were   domiciled       or      incorporated      elsewhere       and
    
    operated outside New Jersey. Accordingly, even if the decrease
    
    in the price of C&F securities was deemed a direct injury to
    
    C&F, as opposed to a derivative injury largely arising from its
    
    exposure   to     Fairfax's     troubles,        "the    place   where     the    injury
    
    occurred,"       as   defined    by     section       145(2)(a)     of    the     Second
    
    Restatement, was nonetheless in New York's financial markets,
    
    and the enterprise members had "minimal contact with New Jersey"
    
    in causing it.
    
    
    23 What we refer to as Odyssey consists of: Odyssey Re Holding
    Corp., which was incorporated in Delaware and had principal
    executive offices in New York; wholly-owned Odyssey Re Group;
    and Odyssey America Reinsurance Corp., which had its principal
    offices in Connecticut.
    
    
    
                                                32                                   A-0963-12T1
          The trial judge then turned to the general choice-of-law
    
    principles set out in section 6 of the Second Restatement. For
    
    comity's sake, he explained that, although New York and New
    
    Jersey     had    competing    interests         about   whether      private     actors
    
    should     be    able   to   enforce    a     RICO   statute,        the   two   states'
    
    enactments were nonetheless similar and shared the "fundamental
    
    policies" of preventing racketeering and other organized crime.
    
    The   two   states'      policies      were      therefore     not    in   fundamental
    
    conflict, so interstate comity required New Jersey to respect
    
    New York's deliberate decision about how to serve that policy
    
    that included a decision to withhold a private RICO cause of
    
    action. The judge found that was also true from the perspective
    
    of "[t]hose involved in the financial markets based in New York"
    
    because they "should be able to depend on New York law" as the
    
    law governing "their conduct."
    
          As    for   the   interests      of     the    parties    and    the   interests
    
    underlying the field of tort law, the judge observed that the
    
    parties knew New York law precluded exposure to private RICO
    
    claims regardless of their conduct. And, because New York had
    
    the "most significant relationship" to the matter, defendants
    
    had "no reasonable expectation" that such exposure could arise
    
    due to the application of another state's local law. The judge
    
    reasoned the result should not change just because the conduct,
    
    
    
    
                                                33                                   A-0963-12T1
    which was focused on "the New York financial industry," also had
    
    tangential     connections         outside       that       state,      such        as    the
    
    communications       with   A.M.      Best,     the       one   major    rating      agency
    
    located in New Jersey.
    
          The trial judge also observed that the only factor favoring
    
    application of New Jersey law instead of New York law was the
    
    greater involvement in this litigation of New Jersey's courts.
    
    He noted, however, that this factor did not outweigh the need to
    
    serve   the    choice-of-law           "values,"          which    were      "certainty,
    
    predictability and uniformity of results" in their application.
    
    Consequently, the judge ruled that the "qualitative balance" of
    
    all   the   section     145    and      section       6    factors      of    the    Second
    
    Restatement compelled application of New York local law, which,
    
    upon application, compelled dismissal of the RICO claims.
    
    
                                      3. Our Holding
    
          For the reasons that follow, we conclude that New York law,
    
    which   does   not    permit      a    private    civil         racketeering        action,
    
    applies in this case and, as held by the trial court, requires
    
    the dismissal of plaintiffs' RICO claim.
    
          We first consider (a) some general principles, as well as
    
    (b)   the   impact     of   the       Supreme    Court's        recent       decision      in
    
    Ginsberg v. Quest Diagnostics, Inc., 
    227 N.J. 7
    , 18 (2016), on
    
    the issues raised. Then, because an early but pivotal step in
    
    
    
                                              34                                        A-0963-12T1
    resolving a choice-of-law problem requires a determination that
    
    a true conflict exists, we examine (c) New Jersey's racketeering
    
    laws, and their intent and purposes, and we thereafter similarly
    
    analyze (d) New York's racketeering laws. We then conclude this
    
    part of the opinion with a description of (e) the choice of law
    
    required in these circumstances.
    
    
                             (a) Some General Principles
    
           In    considering       the   propriety        of     the   choice-of-law
    
    determinations in question, we observe, first, that the trial
    
    judge's interpretation of the RICO statutes is not entitled to
    
    deference. ADS Assocs. Grp., Inc. v. Oritani Sav. Bank, 
    219 N.J. 496
    ,   511     (2014).    Choice-of-law     determinations         present   legal
    
    questions,     which     are   subjected    to   de   novo    review.    Bondi    v.
    
    Citigroup, Inc., 
    423 N.J. Super. 377
    , 418 (App. Div. 2011),
    
    certif. denied, 
    210 N.J. 478
     (2012); Arias v. Figueroa, 395 N.J.
    
    Super.      623,   627   (App.   Div.),    certif.     denied,     
    193 N.J. 223
    
    (2007). And choice-of-law decisions are made not only issue-by-
    
    issue, Cornett v. Johnson & Johnson, 
    211 N.J. 362
    , 374 (2012),
    
    but also, at times, party-by-party, Ginsberg, supra, 227 N.J. at
    
    18.
    
           When New Jersey is the forum state, its choice-of-law rules
    
    control. McCarrell, supra, 227 N.J. at 588; Erny v. Estate of
    
    Merola, 
    171 N.J. 86
    , 94 (2002). For tort claims, our Supreme
    
    
    
                                           35                                 A-0963-12T1
    Court has expressly embraced the Second Restatement for choice-
    
    of-law determinations. P.V. ex rel. T.V. v. Camp Jaycee, 
    197 N.J. 132
    , 139-43 (2008).
    
         New   Jersey    courts    have    also   recognized   that   a     parent
    
    corporation may have standing to participate in litigation over
    
    wrongs sustained by its subsidiary if the parent itself has a
    
    sufficient financial interest in the outcome. See, e.g., Bondi,
    
    supra, 423 N.J. Super. at 436-39. See also Section V(A), infra.
    
    Bondi   did    not   declare   a      categorical   rule   that   the     same
    
    jurisdiction's local law always applies to both the parent and
    
    the subsidiary with regard to a particular claim, and, at the
    
    time the trial judge ruled, neither Bondi nor any other reported
    
    New Jersey opinion had suggested a general reason not to adopt
    
    such a rule.
    
    
                             (b) Ginsberg's Impact
    
         Recently, our Supreme Court recognized that, in multi-party
    
    actions, choice-of-law principles may call for the application
    
    of a different state's laws from party-to-party or claim-to-
    
    claim. Ginsberg, supra, 227 N.J. at 18.24 But plaintiffs have
    
    
    
    24 To be precise, Ginsberg specifically held that "in the
    majority of cases, a defendant-by-defendant analysis furthers
    the [Second] Restatement principles and provides the most
    equitable method of resolving choice-of-law questions." 227 N.J.
    at 18 (emphasis added). But, in explaining this aspect of its
                                                         (continued)
    
    
                                           36                             A-0963-12T1
    never   sought       separate       choice-of-law        analyses.        In      fact,
    
    plaintiffs have blurred the distinctions between them and their
    
    subsidiaries,        perhaps       for      strategic        reasons,25        thereby
    
    frustrating       any         attempt      at     rendering        an     informed,
    
    individualized,      choice-of-law         analysis     from    each    plaintiff's
    
    standpoint.
    
         That   is,   we     recognize       that    in   many   instances      in    which
    
    multiple    claims      are    asserted    by    multiple      plaintiffs      against
    
    multiple defendants, a court may be asked to make individualized
    
    choice-of-law     determinations          that   "exponentially"        increase      in
    
    difficulty with every increase in the number of parties and
    
    claims. See Georgine v. Amchem Products, Inc., 
    83 F.3d 610
    , 627
    
    (3d Cir. 1996). We do not think, however, that where two or more
    
    related corporate plaintiffs file a single action based on the
    
    
    (continued)
    holding, the Court observed that Second Restatement principles
    "focus[] on the state's relationship to the parties," and
    recognized   that,  in  referring   to  "parties,"   the  Second
    Restatement was not limited and included plaintiffs, defendants,
    and "any third party defendants." Ibid. (emphasis added).
    Consequently, we do not view Ginsberg's particular holding,
    which required in some instances a "defendant-by-defendant
    analysis," as applying only in that circumstance. Instead, the
    same principles may at times warrant plaintiff-by-plaintiff
    analyses as well.
    
    25 For example, if it had pursued its claims separately from
    C&F's, Fairfax would have had no plausible argument for applying
    New Jersey substantive law to a dispute between a Canadian
    corporation based in Toronto and various New York-based
    defendants.
    
    
    
                                              37                                   A-0963-12T1
    same operative set of facts, and assert causes of action and
    
    demands for damages allegedly caused to their corporate family –
    
    as if that family constituted a single entity – that a court
    
    must   nevertheless    disentangle      all    the      possibilities     in
    
    identifying   the   correct   state    law    to   be   applied   to    each
    
    plaintiff's claim or claims. Ginsberg does not require that a
    
    court make such determinations when the court is deprived of the
    
    parties' assistance. In short, since plaintiffs do not seek a
    
    separate resolution of each choice-of-law problem from each of
    
    their standpoints, we will not pursue that possibility further.
    
    We would add that to the extent multiple plaintiffs would have a
    
    court treat them differently for choice-of-law purposes, they
    
    must come forward and make that argument26 and, moreover, be
    
    
    
    26 We do not interpret our rules as requiring a plaintiff or
    plaintiffs to affirmatively plead the application of another
    jurisdiction's laws; indeed, we have shown particular liberality
    in allowing defendants to assert another jurisdiction's laws in
    moving for summary judgment even when not having first asserted
    that other jurisdiction's law as an affirmative defense. See
    Rowe v. Hoffman-La Roche Inc., 
    383 N.J. Super. 442
    , 450-51 (App.
    Div. 2006), rev’d on other grounds, 
    189 N.J. 615
     (2007); Erny v.
    Russo, 
    333 N.J. Super. 88
    , 96 (App. Div. 2000), rev’d on other
    grounds, 
    171 N.J. 86
     (2002). But that liberality is stretched
    beyond breaking if we were to allow a party to advocate on
    appeal, for the first time, an entirely different approach to
    already difficult choice-of-law questions. As we said in our
    decision in Ginsberg, which the Supreme Court affirmed, "choice-
    of-law determination[s] ideally should be made as early in a
    case as possible." Ginsberg v. Quest Diagnostics, Inc., 441 N.J.
    Super. 198, 223 (App. Div. 2015); see also Bailey v. Wyeth,
    Inc., 
    422 N.J. Super. 343
    , 350 (Law Div. 2008), aff’d on other
                                                         (continued)
    
    
                                      38                              A-0963-12T1
    willing     to    be   treated   separately   for    all   other    purposes     as
    
    well.27
    
           In   the   final   analysis,    Ginsberg     not    only    held   that   an
    
    individualized assessment is "not feasible in every matter," 227
    
    N.J. at 20, but also that, in each case, a court must ascertain
    
    "the      most     equitable     method     of      resolving      choice-of-law
    
    questions," Id. at 18.           A sudden alteration in course – sought
    
    by no one here, even now on appeal – that might arguably be
    
    
    
    (continued)
    grounds, 
    433 N.J. Super. 360
     (App. Div. 2011), certif. denied,
    
    211 N.J. 274
     (2012). And it is well-established in the federal
    courts that choice-of-law issues may be waived when not asserted
    by the parties, Williams v. BASF Catalysts LLC, 
    765 F.3d 306
    ,
    316-17 (3d Cir. 2014), a concept that we hold should be applied
    here as well. Having said all that, we do not mean to suggest
    that plaintiffs have sought a sudden change in course; to the
    contrary, even after both our decision and the Supreme Court's
    decision in Ginsberg, plaintiffs have continued to pursue their
    rights as if they were the same juridical creature and have not
    sought an individualized choice-of-law assessment from each
    plaintiff's standpoint. Consequently, we hold that in light of
    the arguments plaintiffs have posed, and in consideration of
    their suggestions as to how we are to exit this choice-of-law
    labyrinth, we should not now pursue a wholly different path that
    plaintiffs – even in the wake of Ginsberg – have never urged as
    the proper or required course.
    
    27 When multiple plaintiffs seek individualized choice-of-law
    determinations, we would think concerns about standing, such as
    those raised here, would warrant a less liberal approach than
    suggested by Bondi, supra, 423 N.J. Super. at 436-39, which we
    discussed above and again later in this opinion. In short, a
    court should not be expected to choose the law appropriate for
    each plaintiff as to each claim, only to have, for example,
    plaintiff X lay claim to a right to pursue an award of damages
    based on injuries sustained by plaintiff Y.
    
    
    
                                           39                                 A-0963-12T1
    permitted by Ginsberg, does not serve our chief, overarching
    
    goal of seeking an equitable method for resolving the parties'
    
    choice-of-law disputes.
    
    
                                 (c) New Jersey's
                                 Racketeering Laws
    
          In enacting anti-racketeering legislation, N.J.S.A. 2C:41-1
    
    to   -6.2,28   the   Legislature     utilized     federal   statutes   as    its
    
    model. Accordingly, federal case law provides a useful guide in
    
    understanding our own RICO law. Cagno, supra, 211 N.J. at 508.
    
    In this regard, it is noteworthy that the federal and New Jersey
    
    enactments expressly afford a private civil cause of action, see
    
    18 U.S.C.A. § 1964(c); N.J.S.A. 2C:41-4(c), whereas New York's
    
    similar law, which we discuss in Section IV(A)(3)(d), infra,
    
    does not. The New Jersey and federal enactments allow "[a]ny
    
    person," who is injured "in his business or property by reason
    
    of a violation" of the statute, to "sue therefore" and recover
    
    treble   damages,     plus   costs    of   suit    including   a   reasonable
    
    attorney's fee. 18 U.S.C.A. § 1964(c); N.J.S.A. 2C:41-4(c).
    
          All remedies permitted by our RICO law are "cumulative with
    
    each other and other remedies at law," N.J.S.A. 2C:41-6.1, and
    
    
    28Better known as our RICO law. State v. Cagno, 
    211 N.J. 488
    ,
    508 (2012), cert. denied, ___ U.S. ___, 
    133 S. Ct. 877
    , 184 L.
    Ed. 2d 687 (2013); State v. Ball, 
    268 N.J. Super. 72
    , 98 (App.
    Div. 1993), aff'd, 
    141 N.J. 142
     (1995), cert. denied, 
    516 U.S. 1075
    , 
    116 S. Ct. 779
    , 
    133 L. Ed. 2d 731
     (1996).
    
    
    
                                          40                               A-0963-12T1
    the   Legislature         has    instructed       that    our     RICO     law   must      be
    
    "liberally        construed       to    effect       [its]      remedial       purposes,"
    
    N.J.S.A. 2C:41-6.
    
          The    required       "racketeering         activity,"       also       known   as    a
    
    predicate    act,     must       itself   be     a   criminal      offense.      N.J.S.A.
    
    2C:41-1(a)(1), (2); Ball, supra, 141 N.J. at 162; Karo Mktg.
    
    Corp. v. Playdrome Am., 
    331 N.J. Super. 430
    , 438 (App. Div.),
    
    certif. denied, 
    165 N.J. 603
     (2000). In fact, the predicate act
    
    may not only be one of the crimes the Legislature has identified
    
    but   also   an    "equivalent         crime"    under    the     law    of    "any   other
    
    jurisdiction," N.J.S.A. 2C:41-1(a).
    
          A "pattern of racketeering activity" requires two predicate
    
    acts,   N.J.S.A.      2C:41-1(d)(1),        that      have      "either    the    same     or
    
    similar purposes, results, participants or victims or methods of
    
    commission     or     are       otherwise      interrelated        by     distinguishing
    
    characteristics and are not isolated incidents," N.J.S.A. 2C:41-
    
    1(d)(2). Participation in a conspiracy to commit prohibited RICO
    
    activity is also prohibited activity. N.J.S.A. 2C:41-2(d). The
    
    designation of conspiracy as racketeering activity under federal
    
    law means that the conspiracy itself may be one of the required
    
    predicate acts. State v. Bisaccia, 
    319 N.J. Super. 1
    , 20-21
    
    (App. Div. 1999). In a private civil RICO action, the predicate
    
    act   must   be     the    proximate      cause      of   the    plaintiff's      injury.
    
    
    
    
                                                41                                    A-0963-12T1
    Interchange State Bank v. Veglia, 
    286 N.J. Super. 164
    , 178 (App.
    
    Div. 1995) (citing Holmes v. Sec. Inv'r Prot. Corp., 
    503 U.S. 258
    , 265, 
    112 S. Ct. 1311
    , 1316-18, 
    117 L. Ed. 2d 532
    , 543
    
    (1992)), certif. denied, 
    144 N.J. 377
     (1996).
    
        The prohibited RICO activity relevant here is participation
    
    in an "enterprise" which engages in "a pattern of racketeering
    
    activity." N.J.S.A. 2C:41-2(c). The Legislature did not intend
    
    "to punish mere repeated offenses," so the term "pattern" also
    
    requires "relatedness," which means "some temporal connection or
    
    continuity over time," but nonetheless encompasses "short-term
    
    criminal activity" of the proscribed kind as well as "long-term
    
    criminal    activity."        Ball,   supra,    141    N.J.       at     167-69.
    
    "Enterprise"     is   broadly    defined   to   include       all      kinds   of
    
    entities,   as   well    as    "any   individual"     and   any     "group     of
    
    individuals" who are "associated in fact although not a legal
    
    entity." N.J.S.A. 2C:41-1(c). The enterprise may be "licit" or
    
    "illicit." Ibid.
    
        The enterprise is a statutory element "distinct from the
    
    incidents constituting the pattern of activity." Ball, supra,
    
    141 N.J. at 162. Because it is distinct, the enterprise must
    
    have an "organization" but the organization need not have "a
    
    structure with a particular configuration." Ibid.; accord Cagno,
    
    supra, 211 N.J. at 494. "[A]n informal organization functioning
    
    
    
    
                                          42                                A-0963-12T1
    as a continuing unit" is sufficient to facilitate "those kinds
    
    of   interactions   that   become    necessary   when   a   group,    to
    
    accomplish its goal, divides among its members the tasks that
    
    are necessary to achieve a common purpose." Ball, supra, 141
    
    N.J. at 161-62.
    
         Although evidence establishing the enterprise must "focus"
    
    on "how the participants associated with each other" and on the
    
    extent and nature of the planning, id. at 162-63, it "need not
    
    be distinct or different from the proof that establishes the
    
    pattern of racketeering activity," id. at 162, and a defendant
    
    only needs to possess "some minimal knowledge" of "'the general
    
    nature of the enterprise . . . beyond his individual role.'" Id.
    
    at 176 (quoting United States v. Eufrasio, 
    935 F.2d 553
    , 577 (3d
    
    Cir. 1991)). In this regard, our Supreme Court has declined to
    
    endorse a definition of enterprise. Id. at 177. An enterprise
    
    may be as little as "the sum of the racketeering acts," with
    
    neither a "definable structure" nor any "purpose . . . greater
    
    than the predicate acts," as we held in Ball, supra, 268 N.J.
    
    Super. at 143-44.
    
         For an enterprise's pattern of racketeering to constitute a
    
    RICO violation, it must "affect trade or commerce," N.J.S.A.
    
    2C:41-2, which is defined as including "all economic activity
    
    involving or relating to any commodity or service," N.J.S.A.
    
    
    
    
                                        43                         A-0963-12T1
    2C:41-1(h).      That   definition        of     "trade      or    commerce"       does   not
    
    specify that the trade or commerce occur within this State,
    
    N.J.S.A.       2C:41-1(h),         but     the     Legislature             declared       the
    
    enactment's      purpose    to     be    the    protection         of     "the   legitimate
    
    trade    or    commerce     of    this    State"       and    "the       general    health,
    
    welfare and prosperity of the State and its inhabitants" from
    
    "the     infiltration"       of     the    prohibited             kinds     of    activity.
    
    N.J.S.A. 2C:41-1.1(c).
    
           We     have   held   that    those       declarations,            along    with    the
    
    Legislature's finding of harm to "this State's economy" from
    
    racketeering, N.J.S.A. 2C:41-1.1(b), require that a plaintiff
    
    show the prohibited conduct has affected the trade or commerce
    
    of this State." State v. Casilla, 
    362 N.J. Super. 554
    , 563-64
    
    (App. Div.) (quoting N.J.S.A. 2C:41-1.1(c); emphasis omitted),
    
    certif. denied, 
    178 N.J. 251
     (2003). We have also observed that
    
    the Legislature would have had no reason to address the effects
    
    of racketeering in other states, many of which have their own
    
    RICO statutes, or in interstate commerce, as to which federal
    
    legislation applies. Id. at 564-65.
    
           In a criminal prosecution, in addition to subject matter
    
    and     personal     jurisdiction,        a      New   Jersey           court    must     have
    
    "territoriality," meaning territorial jurisdiction pursuant to
    
    N.J.S.A. 2C:1-3. State v. Denofa, 
    187 N.J. 24
    , 36 (2006). That
    
    
    
    
                                               44                                       A-0963-12T1
    statute recognizes various ways in which an offense may have "a
    
    direct nexus to New Jersey" that would justify its prosecution
    
    as a criminal offense here. State v. Sumulikoski, 
    221 N.J. 93
    ,
    
    102 (2015).
    
          The   plainest     examples        of     territoriality         are    when          the
    
    "result" of the offense "occurs within this State," or when the
    
    "conduct    which   is   an    element        of    the     offense"    occurs           here.
    
    N.J.S.A. 2C:1-3(a)(1). Conduct committed outside the State has a
    
    nexus to New Jersey if New Jersey law would view such acts as
    
    "constitut[ing] an attempt to commit a crime within the State,"
    
    N.J.S.A.    2C:1-3(a)(2),      meaning        an    attempt      to   cause       a    result
    
    within the State that would be an offense if caused by in-state
    
    conduct. See State v. Bragg, 
    295 N.J. Super. 459
    , 464-65 (App.
    
    Div. 1996). Outside conduct is also sufficient if New Jersey law
    
    would deem it "a conspiracy to commit an offense within the
    
    State," as long as there is also an "overt act in furtherance
    
    of"   the   conspiracy       that   is    committed         here.     N.J.S.A.           2C:1-
    
    3(a)(3). Conversely, our courts have jurisdiction over conduct
    
    occurring    within    the    State      that      causes    a   result      in       another
    
    state, or is part of an attempt or conspiracy to do so, as long
    
    as that conduct would be an offense under both New Jersey law
    
    and the other state's law. N.J.S.A. 2C:1-3(a)(4).
    
    
    
    
                                              45                                          A-0963-12T1
                                         (d) New York's
                                        Racketeering Laws
    
        Turning to New York's Organized Crime Control Act (OCCA),
    
    1986 N.Y. Laws, c. 516, § 2; N.Y. Penal Law §§ 460.00 to 460.80
    
    (Consol. 2014), we first observe that a violation is called the
    
    crime    of    "enterprise          corruption,"            N.Y.     Penal    Law        § 460.20.
    
    Unlike     New      Jersey's        law,    OCCA       is     not    modeled        on    federal
    
    statutes.      It    "is      far    more    restrictive             than"    federal        RICO,
    
    because New York "calculatedly narrowed the definition of the
    
    requisite pattern of criminal activity" to avoid conflating an
    
    ordinary      "criminal       offense       or    criminal         transaction"          with   the
    
    ongoing "pattern" that characterizes organized crime.                                     Simpson
    
    Elec. Corp. v. Leucadia, Inc., 
    515 N.Y.S.2d 794
    , 799 (App. Div.
    
    1987),   aff’d,       
    530 N.E.2d 860
           (N.Y.    1988);        N.Y.    Penal      Law
    
    § 460.10.
    
        OCCA       allows       designated           county       and    state     officials         to
    
    prosecute      charges        of    enterprise         corruption.           N.Y.    Penal      Law
    
    § 460.50. Although the New York Legislature's findings declare
    
    OCCA's   purposes        to    include       "making          both    criminal       and     civil
    
    remedies available," N.Y. Penal Law § 460.00, the only penalties
    
    it provides, beyond incarceration, are criminal forfeiture and
    
    fines allocated primarily to victim restitution. N.Y. Penal Law
    
    § 460.30.        Those     penalties        may       only     be    imposed        on    persons
    
    convicted of enterprise corruption. Ibid.
    
    
    
                                                     46                                       A-0963-12T1
          Unlike our Legislature's approach, the New York Legislature
    
    rejected a policy of either liberal or strict construction in
    
    order    to     preserve            a    role    for      "discretion."        N.Y.       Penal       Law
    
    § 460.00. Even when "the letter of the law" defining an OCCA
    
    violation       is    satisfied,            "the     question         whether       to    prosecute"
    
    under     OCCA       "is       essentially           one       of    fairness."          Ibid.    Such
    
    "fairness"         was     preserved            by   leaving         the   decision        to    label
    
    alleged criminal conduct as "enterprise corruption" to "those
    
    institutions of government which have traditionally exercised
    
    that function: the grand jury, the public prosecutor, and an
    
    independent judiciary." Ibid. OCCA accordingly does not provide
    
    for a private civil cause of action, see, e.g., Simpson, supra,
    
    515 N.Y.S.2d at 807 (Spatt, J., dissenting), as the parties
    
    concede.
    
          OCCA      liability               requires     the       personal     commission           of   "a
    
    pattern       of     criminal            activity"         comprising         two    felonies:         a
    
    conspiracy to engage in a "criminal enterprise" and a knowing
    
    participation            in    the       activity         or    finances      of    the     criminal
    
    enterprise, or of any other enterprise. N.Y. Penal Law § 460.20.
    
    OCCA also specifies that the pattern of criminal activity may
    
    not     serve      as         the       "criminal         enterprise."        N.Y.       Penal        Law
    
    § 460.10(1). Instead, the criminal enterprise must consist of "a
    
    group    of     persons         sharing         a    common         purpose    of    engaging         in
    
    
    
    
                                                         47                                     A-0963-12T1
    criminal      conduct,       associated      in     an     ascertainable          structure
    
    distinct      from     a    pattern     of   criminal       activity,          and     with    a
    
    continuity of existence, structure and criminal purpose beyond
    
    the   scope     of    individual      criminal      incidents."          Ibid.       In   Ball,
    
    supra, 141 N.J. at 159, our Supreme Court observed that OCCA was
    
    unique among the federal and other state RICO enactments because
    
    it explicitly required an ascertainable structure, separate from
    
    the    underlying          crimes     that        constituted           the    pattern        of
    
    racketeering activity.
    
           Unlike       New    Jersey   law,     OCCA     does       not     specify      that     a
    
    violation must affect trade or commerce, or indeed, that any
    
    particular      effect      must    have     occurred       or     be    deemed      to   have
    
    occurred within New York's borders.
    
           Consequently, in light of the vastly different approaches
    
    engaged by New Jersey and New York to combat racketeering, there
    
    is    no    doubt    that    a   true    conflict         exists       for    choice-of-law
    
    purposes.
    
    
                                        (e) The Choice
    
           In examining the trial court's choice, we start with our
    
    Supreme       Court's        observation          that,     "[a]lthough           we      have
    
    traditionally denominated our conflicts approach as a flexible
    
    'governmental interest' analysis, we have continuously resorted
    
    to    the    [Second       Restatement]      in     resolving       conflict         disputes
    
    
    
                                                 48                                       A-0963-12T1
    arising    out    of    tort."      P.V.,       supra,      197     N.J.    at    135-36.    The
    
    Second Restatement's approach focuses on the state with "the
    
    'most significant relationship'" to the parties and issues. Id.
    
    at 136.
    
          "Probably        the    most       important         function        of    choice-of-law
    
    rules" is to foster comity by promoting "harmonious relations"
    
    and   facilitating       "commercial            intercourse"          between       and    among
    
    states. Restatement (Second), supra, § 6 cmt. d. The first step
    
    is to establish that "an actual conflict exists" between the
    
    laws of the involved states. P.V., supra, 197 N.J. at 143. A
    
    conflict arises, like here, when one state provides a cause of
    
    action but the other does not, especially when that provision or
    
    denial    reflects       an    intent       to       regulate       conduct       rather    than
    
    allocate     losses.         Id.    at    143-44,          148-51     (observing      that     a
    
    conflict     existed         between      New        Jersey    law,     which      maintained
    
    statutory        immunity          from     tort        liability           for    charitable
    
    corporations,          and     Pennsylvania             law,        which        "definitively
    
    abrogated its charitable immunity laws").
    
          A conflict, however, does not always lead to a choice-of-
    
    law analysis. The analysis is preempted when our Legislature has
    
    determined       that        New     Jersey          public       policy        requires     the
    
    application      of    our    substantive            law    whenever       our    courts    have
    
    jurisdiction over the kind of claim at issue, regardless of the
    
    
    
    
                                                    49                                    A-0963-12T1
    interest of another state. See id. at 140 (citing Restatement
    
    (Second), supra, § 6(1)).
    
    
                                  (i) Legislative Directive
    
           Because       a    choice-of-law      analysis      may   be      precluded    or
    
    preempted by law, our first task, in light of the arguments
    
    posed, requires that we ascertain whether there is a legislative
    
    direction regarding the application of substantive law. For the
    
    reasons that follow, we conclude that our Legislature has not
    
    made    such     a       declaration   for        cases   like   this,     either    (a)
    
    expressly, or (b) by implication.
    
    
                                       a. Is There an
                                     Express Directive?
    
           Plaintiffs are mistaken in arguing that our Legislature has
    
    expressly required the application of our RICO laws to out-of-
    
    state conduct. In this respect, plaintiffs rely on provisions in
    
    our Criminal Code that express its territorial parameters. The
    
    Code recognizes its application to conduct occurring "outside
    
    the State" so long as it "constitute[s] an attempt to commit a
    
    crime within the State," N.J.S.A. 2C:1-3(a)(2), or to "conduct
    
    occurring outside the State" so long as it "is sufficient under
    
    the law of this State to constitute a conspiracy to commit an
    
    offense within the State and an overt act in furtherance of such
    
    conspiracy occurs within the State," N.J.S.A. 2C:1-3(a)(3).
    
    
    
                                                 50                               A-0963-12T1
          Because the criminal racketeering laws are also included
    
    within the Criminal Code, plaintiffs argue that the territorial
    
    reach     applicable       to    a      criminal         prosecution         under      those
    
    racketeering laws also applies to a private RICO action brought
    
    under     those    same     laws       and     principles.         We     disagree.        The
    
    territorial       parameters      delineated         in    N.J.S.A.       2C:1-3(a),        by
    
    their very terms, apply to criminal prosecutions, not private
    
    civil causes of action that may be based on provisions of the
    
    Criminal Code. N.J.S.A. 2C:1-3(a) unmistakably states that its
    
    six territorial rules apply to "a person [who] may be convicted
    
    under the law of this State of an offense . . . for which he is
    
    legally accountable" (emphasis added).
    
          Consequently, despite plaintiffs' forceful argument, this
    
    provision        does     not    contain           the     "preemptive         legislative
    
    expression,"       State    Farm       Mut.    Auto.       Ins.    Co.    v.    Estate      of
    
    Simmons,    
    84 N.J. 28
    ,    39    (1980),          necessary      to    support      the
    
    imposition of our substantive law to conduct occurring outside
    
    the     State.    Because       such    an     extensive          reach      would    likely
    
    constitute "an impermissible intrusion into the affairs of other
    
    states," O'Connor v. Busch Gardens, 
    255 N.J. Super. 545
    , 549-50
    
    (App. Div. 1992), we reject the contention that N.J.S.A. 2C:1-
    
    3(a) constitutes a legislative directive as to the reach of New
    
    Jersey substantive law in a private RICO cause of action.
    
    
    
    
                                                  51                                     A-0963-12T1
                                       b. Is There an
                                     Implied Directive?
    
             We   also    reject     any   contention        that   such       a    legislative
    
    directive may be found by implication here.
    
             The preeminent expression of New Jersey public policy is
    
    the Legislature's enactments. State Farm, supra, 84 N.J. at 39.
    
    If   a    statute     declares     that    a    substantive         rule   applies       in   a
    
    situation that would otherwise pose a choice-of-law question,
    
    "New Jersey courts would follow that directive even when the law
    
    of other jurisdictions dictated a contrary result." Ibid. That
    
    understanding conforms with the Second Restatement's instruction
    
    that, "subject to constitutional restrictions," a court "will
    
    follow a statutory directive of its own state on choice of law."
    
    Restatement          (Second),     supra,       § 6(1).       Examples         include    the
    
    Uniform Commercial Code provisions that direct courts to choose
    
    the law "of a particular state" or of the state that the parties
    
    specified. Id. at § 6 cmt. a.
    
             But,   because    statutes       are       usually   not    so    "explicit,"        a
    
    court may determine whether the issue presented "falls within
    
    the intended range of application of a particular statute." Id.
    
    at § 6 cmt. b & cmt. c. The Legislature's intended "range of
    
    application" should be enforced "when these intentions can be
    
    ascertained and can constitutionally be given effect," even if
    
    
    
    
                                                   52                                  A-0963-12T1
    another state's substantive law "would be applicable under usual
    
    choice-of-law      principles."        Id.    at    §    6     cmt.   b.    Thus,    if    the
    
    forum's legislature "intended that the statute should be applied
    
    to the out-of-state facts involved, the court should so apply
    
    it[.]" Ibid. "On the other hand, if the legislature intended
    
    that the statute should be applied only to acts taking place
    
    within the state, the statute should not be given a wider range
    
    of application." Ibid.
    
           The absence of such a declaration in an enactment implies
    
    the Legislature intended application only to conduct or results
    
    that    occur    within    the    State,      and       that    it    did   not     have   an
    
    interest in facilitating or preventing developments occurring
    
    elsewhere. Van Slyke v. Worthington, 
    265 N.J. Super. 603
    , 613-14
    
    (Law    Div.    1992).    The    Second      Restatement         similarly     recognizes
    
    that laws are commonly "formulated solely with the intrastate
    
    situation in mind," with no suggestion they are "intended to
    
    have extraterritorial application." Restatement (Second), supra,
    
    § 6 cmt. e. That would explain the absence in P.V., supra, 197
    
    N.J. at 148-49, of a suggestion that the Charitable Immunity Act
    
    could     be    understood        as    containing             such    a     declaration,
    
    notwithstanding the "importance" of that enactment's remedial
    
    
    
    
                                                 53                                     A-0963-12T1
    policy and the Legislature's mandate to construe the enactment
    
    liberally.29
    
         The higher standards for criminal liability in New York's
    
    OCCA, when compared to those in New Jersey's RICO statutes,
    
    meant that a defendant would be exposed to liability under New
    
    Jersey's local law for conduct that would not be illegal under
    
    New York's law.     The New York     Legislature made    its enactment
    
    narrower   than   federal   RICO,   instead   of   broader   as   did   our
    
    Legislature. See Ball, supra, 268 N.J. Super. at 107. New York
    
    
    
    29Plaintiffs emphasize two decisions from other jurisdictions in
    support of their position. We do not find they suggest a
    contrary view than that which we have reached. In Marshall v.
    Fenstermacher, 
    388 F. Supp. 2d 536
    , 547 (E.D. Pa. 2005), the
    court was required to apply "the conflicts regime of the forum
    state," Pennsylvania. The plaintiff had asserted common law
    torts under both Pennsylvania and New Jersey law but asserted
    RICO claims only under New Jersey and federal law, id. at 546,
    presumably because Pennsylvania's statute, like New York's, did
    not afford a private civil cause of action. See 18 Pa. Cons.
    Stat. § 911. The court simply stated that it would consider the
    New Jersey RICO claims under the New Jersey statute, with no
    mention of choice-of-law doctrine and without citation to New
    Jersey's RICO or general territoriality statutes. Marshall,
    supra, 388 F. Supp. 2d at 562 n.29. In the other case urged by
    plaintiffs, Houston v. Whittier, 
    216 P.3d 1272
    , 1278-80 (Idaho
    2009), it was explained that Idaho courts were not automatically
    compelled to let a plaintiff assert Oregon causes of action
    simply because they were statutory. Instead, the court had to
    find the absence of a conflict with "the public policy of the
    forum," and allowed the maintenance of the causes of action only
    after finding that Oregon statutes were "virtually identical" to
    Idaho's. Id. at 1279-80. Thus, plaintiffs are mistaken in
    suggesting that Houston presents an instance in which the
    existence of a statutory cause of action precluded a court from
    conducting a choice-of-law analysis.
    
    
    
                                        54                            A-0963-12T1
    also    precluded      private    litigants        from     pursuing    cases    that
    
    prosecutors with limited resources might decline, as opposed to
    
    New Jersey's decision to encourage private litigants with the
    
    prospect of treble damages and counsel fee awards. Cf. Lindsey
    
    v. Allstate Ins. Co., 
    34 F. Supp. 2d 636
    , 646 (W.D. Tenn. 1999)
    
    (observing that Congress included a private cause of action in
    
    federal     RICO       "[t]o     facilitate        the     enforcement     of     its
    
    provisions"); Metro Int'l, Inc. v. Alco Standard Corp., 657 F.
    
    Supp.     627,   634     (M.D.    Pa.    1986)      (recognizing       that,    "[t]o
    
    facilitate and strengthen enforcement," Congress created RICO
    
    with a private right of action for treble damages).
    
           As in P.V., supra, 197 N.J. at 148-49, the difference in
    
    approaches reflected a difference in policy and not a reflection
    
    of mere variations in the procedural rules to be followed in
    
    establishing       a    liability       that     both     states   recognized      in
    
    principle for the alleged conduct, as was the case in both State
    
    Farm, supra, 84 N.J. at 42-43, and Cornett, supra, 211 N.J. at
    
    377-78. We, thus, recognize that it is immaterial whether the
    
    New York Legislature's motivation was to protect individuals or
    
    the preeminence of its financial marketplace by limiting the
    
    vehicles that private litigants could use to inhibit incidental
    
    activity. It only matters that New York and New Jersey reached
    
    "conflicting       resolutions     of    a     particular    policy    issue."    See
    
    
    
    
                                              55                               A-0963-12T1
    Boyes v. Greenwich Boat Works, Inc., 
    27 F. Supp. 2d 543
    , 548
    
    (D.N.J.   1998).    In    other   words,    New   York   did   not    intend,   by
    
    enacting OCCA, to regulate all the conduct New Jersey intended
    
    to reach in enacting its RICO laws; consequently, we reject
    
    plaintiffs' characterization of the New Jersey private right of
    
    action as simply a stronger remedy to advance an out-of-state
    
    policy that is otherwise the same as the in-state policy.
    
    
                                 (ii) Application of
                               The Second Restatement
    
        Having found no legislative directive that would govern the
    
    choice-of-law problem, we turn to the Second Restatement and
    
    examine its: (a) section 6 factors; (b) section 145 principles;
    
    and (c) specific tort principles.
    
    
                                      a. Section 6
    
        In the absence of an explicit statutory directive or a
    
    directive    that        can   "be   ascertained         by    a     process    of
    
    interpretation and construction," Restatement (Second), supra,
    
    § 6 cmt. b, there is a nonexclusive list of seven factors to be
    
    considered in choosing the applicable law:
    
                (a) the needs of the interstate and inter-
                national systems,
    
                (b)    the relevant policies of the forum,
    
                (c) the    relevant   policies    of   other
                interested states and the relative interests
    
    
    
                                           56                                A-0963-12T1
                of those states in the determination of the
                particular issue,
    
                (d) the       protection         of    justified     expecta-
                tions,
    
                (e) the    basic  policies                   underlying     the
                particular field of law,
    
                (f) certainty, predictability and uniform-
                ity of result, and
    
                (g) ease in the determination and applica-
                tion of the law to be applied.
    
                [Id. at § 6(2).]
    
        The     factor      that       deserves       the    greatest     emphasis     in     a
    
    particular case is that which furthers the most relevant policy
    
    interest, such as "protecting the justified expectations of the
    
    parties" or "favoring uniformity of result." Id. at § 6 cmt. c.
    
    "Generally speaking, it would be unfair and improper to hold a
    
    person   liable       under    a    local    law    of    one   state    when    he     had
    
    justifiably molded his conduct to conform to the requirements of
    
    another state," as opposed to acting "without giving thought to
    
    the legal consequences of [his] conduct or to the law that may
    
    be applied." Id. at § 6 cmt. g. When "the purposes sought to be
    
    achieved    by    a    local       statute    or    common      law   rule     would     be
    
    furthered   by    its    application         to    out-of-state       facts,    however,
    
    this is a weighty reason why such application should be made."
    
    Id. at § 6 cmt. e.
    
    
    
    
                                                 57                                 A-0963-12T1
           The    proper      choice       often     "represents         an    accommodation         of
    
    conflicting values" that requires the forum court to name the
    
    "general      principle"          that    deserves          the    most    weight    and       then
    
    analyze the circumstances of the case in that regard. Id. at § 6
    
    cmt. c. Without a statutory mandate to apply its own local law,
    
    a court "must decide for itself whether the purposes sought to
    
    [be] achieved by a local statute or rule should be furthered at
    
    the expense of" other relevant factors. Id. at § 6 cmt. e. Those
    
    include "the relevant policies of all other interested states"
    
    and    their       "relative         interest"        in    regulating      the     underlying
    
    conduct that gave rise to the litigation, or in providing a
    
    remedy       for     a     particular          plaintiff          against     a     particular
    
    defendant.         Id.    at     § 6   cmt. f.        "[W]here      the    policies       of    the
    
    interested         states      are     largely    the       same    but    where    there       are
    
    nevertheless minor differences between their relevant local law
    
    rules," there is "good reason for the court to apply the local
    
    law of that state which will best achieve the basic policy, or
    
    policies, underlying the particular field of law involved." Id.
    
    at § 6 cmt. h.
    
           In applying section 6 of the Second Restatement in P.V.,
    
    supra,      197    N.J.     at    152-53,      the     Court       noted    that    interstate
    
    comity additionally counsels that the forum state should defer
    
    to    the    other       state's       local     law       if:    (1) applying      the    forum
    
    
    
    
                                                     58                                   A-0963-12T1
    state's local law would "substantially impair" the other state's
    
    ability "to regulate the conduct of those who chose to operate
    
    within its borders," and (2) applying the other state's local
    
    law would not inhibit the forum's ability to regulate conduct
    
    that occurs within its own borders. For example, the plaintiff
    
    in P.V. was a New Jersey resident pursuing a tort claim against
    
    a   Pennsylvania       charity        for     conduct     that      occurred      in
    
    Pennsylvania. Id. at 135. The Court found both of the conditions
    
    that it noted for affording comity: (1) applying New Jersey's
    
    broad charitable immunity to the activity in Pennsylvania would
    
    "substantially impair[]" Pennsylvania's "ability to regulate the
    
    conduct of those who chose to operate within its borders," and
    
    (2) applying Pennsylvania law would not prevent New Jersey from
    
    applying its law of charitable immunity to activities within New
    
    Jersey. Id. at 153.
    
         The parallel of this case to P.V. rests on the fact that
    
    the alleged RICO activity predominantly occurred in New York
    
    rather   than   New   Jersey,    and    was    primarily     aimed    at   harming
    
    plaintiffs      indirectly      by     damaging     their        reputation       by
    
    influencing     the   mostly    New    York-based       financial    markets     and
    
    financial news media. In those circumstances, the application of
    
    New York law would not set a precedent that inhibits New Jersey
    
    from providing a civil cause of action for in-state activities
    
    
    
    
                                            59                                 A-0963-12T1
    that qualify as racketeering under New Jersey's statute; New
    
    Jersey    could   still   protect    its    domiciliaries    and    New    Jersey
    
    commerce from harm that is felt mostly within its borders.
    
        In contrast, applying New Jersey's civil cause of action
    
    would nullify New York's policy of protecting analogous activity
    
    from being prosecuted as "racketeering" by private litigants,
    
    who lack the institutional constraints of prosecutors and grand
    
    juries. These distinctions in the two neighboring state's laws
    
    created    differing   expectations        about   what   conduct   each     would
    
    allow or prohibit.
    
        This case is, thus, distinguishable from those in which
    
    courts declined to dismiss claims recognized under New Jersey
    
    local law, even though out-of-state plaintiffs might have been
    
    unable to pursue such causes of action under their own state's
    
    local law.        In those matters, the plaintiffs were allowed to
    
    pursue their claims on the ground that their home states had no
    
    reason to deny them the fortuity of a remedy for what both
    
    states    recognized   as   "the    same    evil,"   even   if   they     did   not
    
    recognize it to the same degree. See Boyes, supra, 
    27 F. Supp. 2d
     at 547-48 (recognizing that Pennsylvania had no interest in
    
    denying its residents the greater damages available under New
    
    Jersey consumer fraud statutes for claims against a New Jersey
    
    seller); Smith v. Alza Corp., 
    400 N.J. Super. 529
    , 542-51 (App.
    
    
    
    
                                          60                                  A-0963-12T1
    Div. 2008) (recognizing that Alabama had no interest in denying
    
    its residents the procedural and substantive advantages afforded
    
    under     New   Jersey's    product    liability     and       consumer      fraud
    
    statutes, but not Alabama's, for claims against a New Jersey
    
    manufacturer); Almog v. Isr. Travel Advisory Serv., Inc., 
    298 N.J. Super. 145
    , 159 (App. Div. 1997) (recognizing Israel had no
    
    interest in denying its citizens the substantive advantages of
    
    New Jersey defamation law in New Jersey residents' claims for
    
    defamation published in New Jersey), appeal dismissed, 
    152 N.J. 361
    , cert. denied, 
    525 U.S. 817
    , 
    119 S. Ct. 55
    , 
    142 L. Ed. 2d 42
    
    (1998).
    
        That,       however,   is   not   what's     before    us.    As   we     have
    
    observed, New Jersey and New York local law do not just differ
    
    in the degree to which they deal with an otherwise common policy
    
    of allowing a private civil RICO cause of action. They share no
    
    such interest, as demonstrated by the fact that New Jersey law
    
    permits, and New York law categorically disallows, such private
    
    claims.    Thus,   we   conclude   that    the   section   6     factors     favor
    
    choosing New York as the state providing the applicable law.
    
    
                                    b. Section 145
    
        In addition, when a cause of action sounds in tort, the
    
    general choice-of-law rule is to ascertain the state with "the
    
    most significant relationship to the occurrence and the parties
    
    
    
                                          61                                  A-0963-12T1
    under     the    principles     stated        in   [section] 6."    Restatement
    
    (Second), supra, § 145(1). That determination is to be made for
    
    each "issue in tort," ibid., meaning each element needed to
    
    establish the tort or a defense to it. Id. at § 145 cmt. d. In
    
    making that determination, certain contacts are "to be taken
    
    into account," including:
    
                (a) the place where the injury occurred,
    
                (b) the place where the conduct causing the
                injury occurred,
    
                (c) the domicil, residence, nationality,
                place of incorporation and place of business
                of the parties, and
    
                (d) the place where the relationship,                  if
                any, between the parties is centered.
    
                [Id. at § 145(2).]
    
    Accord P.V., supra, 197 N.J. at 141. Plaintiffs and defendants
    
    have not asserted or alleged a prior relationship that preceded
    
    the alleged events in this dispute.
    
        The contacts analysis is "not merely quantitative." Id. at
    
    147. Its purpose is to assess the contacts in terms of the
    
    guiding    touchstones     of   the    Second      Restatement's    section       6,
    
    which, "[r]educed to their essence," are: "(1) the interests of
    
    interstate      comity;   (2) the     interests     of   the   parties;   (3) the
    
    interests underlying the field of tort law; (4) the interests of
    
    judicial administration; and (5) the competing interests of the
    
    
    
    
                                             62                               A-0963-12T1
    states." Ibid. (citations omitted).                   The "relative importance"
    
    of the matter's contacts with a state may vary according to "the
    
    nature of the tort involved." Restatement (Second), supra, § 145
    
    cmt. f. Furthermore, for each tort issue, the contacts "are to
    
    be evaluated according to their relative importance with respect
    
    to the particular issue." Id. at § 145 & cmt. d.
    
           If the primary purpose of the local "tort rule" is to deter
    
    or punish misconduct, then the most important contact will be
    
    the conduct's location. Id. at § 145 cmt. c. "[T]he same is true
    
    when the conduct was required or privileged by the local law of
    
    the state where it took place," id. at § 145 cmt. e, so "[a]
    
    rule   [of     tort]     which    exempts      the    actor    from     liability    for
    
    harmful conduct is entitled to the same consideration in the
    
    choice-of-law process as is a rule which imposes liability," id.
    
    at   § 145     cmt. c.    In     that   way,    the   tort     policies    behind    New
    
    Jersey's local law and New York's local law on private civil
    
    causes    of     action     for     racketeering       are     entitled     to     equal
    
    consideration, even if the purpose of New York's "tort rule" was
    
    to   prevent     private       civil    liability     for     certain    conduct    that
    
    would create such liability in New Jersey. In short, were we to
    
    apply section 145's general rule for torts, we would choose New
    
    York as providing the applicable law because it has the most
    
    significant relationship under section 6.
    
    
    
    
                                               63                                 A-0963-12T1
                            c. Specific Tort Principles
    
        In addition to section 145's general factors for torts, the
    
    Second   Restatement     also    provides   more      specific   choice-of-law
    
    rules for particular torts. P.V., supra, 197 N.J. at 141. There
    
    are rules for personal injuries, injuries to tangible things,
    
    injuries    resulting    from    a   plaintiff's      reliance    on    fraud   or
    
    misrepresentations, and injuries resulting from defamation or
    
    injurious    falsehood.       Restatement   (Second),        supra,    §§ 146-51.
    
    Only injurious falsehood is germane to plaintiffs' RICO claim.
    
        For Second Restatement purposes, an "injurious falsehood"
    
    is any false statement that causes pecuniary loss. Id. at § 151
    
    cmt. a; see also Restatement (Second) of Torts § 623A (1976)
    
    (declaring that an injurious falsehood creates liability for one
    
    who publishes it with knowledge or reckless disregard of its
    
    falsity and with intent "to result in harm to interests of the
    
    other having a pecuniary value"). An injurious falsehood "need
    
    not cast any reflection upon the plaintiff's personal reputation
    
    in order to be actionable." Restatement (Second), supra, § 151
    
    cmt. a. It is enough that the false statement "disparage[s] the
    
    plaintiff's    title     to   his    property,   or    its    quality    or     the
    
    character or conduct of the plaintiff's business." Ibid. This
    
    description encompasses defendants' alleged RICO scheme.
    
    
    
    
                                           64                                A-0963-12T1
          The Second Restatement does not have another tort rule that
    
    might cover plaintiffs' RICO claims. Plaintiffs' alleged RICO
    
    injuries are not a form of defamation, nor do they constitute a
    
    form of "personal injury" for choice-of-law purposes, because
    
    "personal     injury"    is     limited     to     "physical     harm       or    mental
    
    disturbance,"     which        means   that        "injuries     to     a        person's
    
    reputation . . . are not 'personal injuries' in the sense here
    
    used." Id. at § 146 cmt. b. Plaintiffs' RICO injuries are not
    
    "Injuries to Tangible Things" as used in section 147 of the
    
    Second Restatement. Plaintiffs' alleged injuries do not arise
    
    from "Fraud and Misrepresentation" for choice-of-law purposes
    
    because plaintiffs do not allege that they "suffered pecuniary
    
    harm on account of [their own] reliance on the defendant[s']
    
    false    representations."       Id.   at      §   148(1).    Rather,       plaintiffs
    
    allege reliance by others. Plaintiffs do not assert a defamation
    
    claim,    but    the     rules     for      "Defamation"        and     "Multistate
    
    Defamation" in sections 149 and 150 of the Second Restatement
    
    are   incorporated      into    section        151,   which    covers       "Injurious
    
    Falsehood." Thus, the only rules for specific torts relevant to
    
    plaintiffs'     RICO    claim    are   sections       149    through    151       of   the
    
    Second Restatement.
    
    
    
    
                                              65                                     A-0963-12T1
          For defamation,30 "the local law of the state where the
    
    publication occurs determines the rights and liabilities of the
    
    parties, except as stated in [section] 150, unless, with respect
    
    to the particular issue, some other state has a more significant
    
    relationship under the principles stated in [section] 6 to the
    
    occurrence       and   the    parties."        Id.   at    § 149.     That    same   rule
    
    governs the choice of law analysis for injurious falsehood. Id.
    
    at   § 151   &    cmt. b.      Here,     the    state      where     the    publications
    
    primarily    occurred        was   the    state      with      the   most    significant
    
    relationship – New York.
    
          Next, we must consider whether section 150 calls for a
    
    different    result.         For   multistate        defamation,       an     "aggregate
    
    communication" is "any one edition of a book or newspaper, or
    
    any one broadcast over radio or television, exhibition of a
    
    motion   picture,"       or    a   similar       act      of   publication,      id.    at
    
    § 150(1), meaning "a single aggregate communication to a large
    
    number of persons at one time." Id. at § 150 cmt. c. Multiple
    
    publications of a defamatory statement to numerous individuals
    
    
    
    30To be clear, plaintiffs did not assert a defamation claim nor
    complained in this appeal that their allegations should have
    been interpreted as if they had sought damages based on a claim
    of defamation. Nevertheless, their disparagement claims may –
    for these purposes – be viewed similarly due to their
    theoretical kinship. Cf. Dairy Stores, Inc. v. Sentinel Pub.
    Co., 
    104 N.J. 125
    , 133 (1986) (recognizing that the torts of
    product disparagement and defamation "sometimes overlap").
    
    
    
                                               66                                   A-0963-12T1
    are    not    necessarily          "aggregate            communications"            subject       to
    
    section      150,    as    they     can       be    separate     acts        that    require      an
    
    individual      choice-of-law            analysis        that    may    lead      to   differing
    
    results. Id. at § 149 cmt. a. Although plaintiffs have alleged
    
    multiple publications of certain defamatory statements, which
    
    might not qualify as section 150 multistate defamations, they
    
    primarily allege aggregate communications published in a manner
    
    intended to influence all persons and entities who follow or
    
    participate         in    the    financial         marketplace         and    financial         news
    
    media.
    
          The     "single       publication            rule"      applies        to     section      150
    
    aggregate communications, so the matter may be determined as if
    
    plaintiff has only one cause of action, regardless of the number
    
    of    jurisdictions         in     which       the      aggregate       communication            was
    
    published. Id. at § 150 cmt. c; Restatement (Second) of Torts,
    
    supra, § 577A cmts. e & f.
    
          In addition, we must consider that, in this context, a
    
    corporation is a legal person and therefore without domicile in
    
    the   choice-of-law             sense.    Restatement           (Second),         supra,      § 150
    
    cmt. f; see also id. at § 11 cmt. 1. Thus, when a corporation
    
    claims       multistate          defamation,            the     state        with      the      most
    
    significant      relationship            to    the      matter   "will        usually      be    the
    
    state where the corporation . . . had its principal place of
    
    
    
    
                                                       67                                    A-0963-12T1
    business" as long as that state was one in which the multistate
    
    defamation was published. Id. at § 150(3). This is because it is
    
    assumed that a corporation sustains its greatest injury from
    
    defamation there. Id. at § 150 cmt. f. Another state, however,
    
    may have the "most significant relationship with respect to the
    
    particular   issue     if    it    is   the    state      where   the   defamatory
    
    communication   caused       plaintiff        the    greatest     injury   to     its
    
    reputation." Ibid.      That can occur if "the matter claimed to be
    
    defamatory   related    to    an    activity        of   the   plaintiff   that   is
    
    principally located in this state," id. at § 150 cmt. f(b), or
    
    "the plaintiff suffered greater special damages in this state
    
    than in the state of its principal place of business," id. at §
    
    150 cmt. f(c), or "the place of principal circulation of the
    
    matter claimed to be defamatory was in this state," id. at § 150
    
    cmt. f(d).
    
        As alleged by plaintiffs, defendants' RICO scheme targeted
    
    plaintiffs' use of the New York financial markets for securities
    
    offerings and for third-party trading of their securities, which
    
    was an "activity" of plaintiffs that was "principally located
    
    in" New York. Ibid. As a result, New York was the state where
    
    defendants' false communications caused plaintiffs "the greatest
    
    injury to [their] reputation" because the main injury from the
    
    alleged RICO scheme was the decrease in offering and market
    
    
    
    
                                            68                                 A-0963-12T1
    share   prices    due     to    the   reputational         harm    that     plaintiffs
    
    suffered    in    the     markets     where        plaintiffs       conducted      such
    
    "activity."      That   is     bolstered        because,    although       defendants'
    
    publications      were       multistate,          "the     place     of     principal
    
    circulation of the matter claimed to be defamatory was in" New
    
    York.   Ibid.     Thus,      New   York     is     the     state    with    the    most
    
    significant relationship under section 150 as well as sections 6
    
    and 145.
    
        That      conclusion        remains         undisturbed       when     considering
    
    "special damages." If the injury was the loss of particular
    
    customers   or    of    market     share    in    particular       locations,     those
    
    would also be important contacts in determining which state's
    
    law to apply. See Pony Comput., Inc. v. Equus Comput. Sys. of
    
    Miss., Inc., 
    162 F.3d 991
    , 996 (8th Cir. 1998); Jelec USA, Inc.
    
    v. Safety Controls, Inc., 
    498 F. Supp. 2d 945
    , 952-53 (S.D. Tex.
    
    2007). As we discuss elsewhere, plaintiffs' cognizable special
    
    damages are the alleged loss of 180 customers throughout the
    
    country. There was no evidence that any loss of customers or
    
    market share occurred to a greater degree in New Jersey than in
    
    New York or elsewhere.
    
        We also are presented with no ground upon which to conclude
    
    that defamation or disparagement of a parent company generally
    
    amounts to defamation or disparagement of a subsidiary, or vice
    
    
    
    
                                               69                                 A-0963-12T1
    versa. The issue of entity separation for corporate parents and
    
    subsidiaries raises additional questions concerning the locus of
    
    the injury. For example, in a case that concerned the looting of
    
    a corporation rather than its defamation, we favored application
    
    of Delaware's equitable principles to pierce the corporate veil,
    
    and    gave   the    parent    standing     to    protect      financial    interests
    
    against the adverse party, because the parent's interests were
    
    not as distinct from its subsidiary's contractual rights as the
    
    doctrine      of    "entity    separateness"       generally      presumes.      Bondi,
    
    supra,   423       N.J.    Super.   at   437-39.       Although    such   recognition
    
    implies that the subsidiary's injury is also an injury to the
    
    parent, we intended no implication that the locus of the injury
    
    necessarily moved from where the subsidiary as a separate entity
    
    would have felt it to where the parent as a separate entity
    
    would feel it.
    
           Plaintiffs have alleged and argued that C&F's finances were
    
    inextricably intertwined with Fairfax's. And they have argued
    
    that    the   market       viewed   Fairfax      and    its    subsidiaries      as    so
    
    inseparable         that     some    defendants         bought     shares     of      the
    
    subsidiaries and affiliates as proxies for Fairfax shares, which
    
    had    become      too    costly    to   borrow    due    to     demand   from     those
    
    shorting        Fairfax.      Plaintiffs         have     further     argued       that
    
    defendants' defamation of C&F served the main goal of destroying
    
    
    
    
                                               70                                 A-0963-12T1
    the entirety of Fairfax itself, and defendants rarely bothered
    
    to distinguish among its subsidiaries. According to plaintiffs,
    
    the RICO enterprise operated by spreading false information in
    
    the    financial      markets        and    the        financial      news       media,      and     by
    
    encouraging      federal       law     enforcement             and   securities          officials
    
    outside New Jersey to investigate Fairfax's use of reinsurance.
    
    The goal was to damage Fairfax's reputation in order to reduce
    
    the     market     share       price,           and     the    proceeds           of    securities
    
    offerings, of all Fairfax entities.
    
           In   responding,           defendants            mostly       view    Fairfax          as    an
    
    integrated company whose general financial instability reached
    
    every    branch       of    the    Fairfax            family    tree.31      And        defendants'
    
    criticisms       of   C&F     served        more       as     criticism      of        the   Fairfax
    
    edifice     than      criticisms           of     C&F       individually.          Indeed,         some
    
    defendants expressly articulated an intent for their criticisms
    
    of a subsidiary, or their short positions in a subsidiary, to
    
    harm    plaintiff          Fairfax    Financial             Holdings.       In     addition,         we
    
    observe     that      the      parent           corporation          of     the        financially-
    
    intertwined Fairfax entities was located in Toronto, and all
    
    share-trading occurred on the New York Stock Exchange or the
    
    Toronto Stock Exchange.
    
    
    
    31 We have appended to this opinion a graph setting forth the
    relationship of the various Fairfax entities.
    
    
    
                                                      71                                         A-0963-12T1
        In    summary,    the    weight    of    the    conduct     in    this      alleged
    
    enterprise of multistate disparagement was in New York, not New
    
    Jersey.   The   financial     markets       and    financial     news    media    were
    
    predominantly located in New York, making New York central to
    
    defendants'     publications.    New     York      is    "the   state     where    the
    
    [harmful]     communication[s]        caused       the     greatest      injury     to
    
    [plaintiffs'] reputation." Restatement (Second), supra, § 150
    
    cmt. f. For all these reasons, New York has "a more significant
    
    relationship to the occurrences and the parties." Ibid.
    
    
                                  (iii) Conclusion
    
        For     these    reasons,    we     conclude         that   the     trial    judge
    
    correctly   gave     C&F's   direct    alleged      losses      little    weight    in
    
    balancing the state contacts and interests for the RICO claims.
    
    We, thus, affirm the determination that New York law applied and
    
    that, in applying New York law, plaintiffs' racketeering claim
    
    could not stand.
    
    
    
    
                                            72                                   A-0963-12T1
                                               B
    
                                THE MAINTAINABILITY OF
                                THE COMMON LAW CLAIMS
    
         Plaintiffs contend the trial judge erroneously dismissed
    
    two of their common law claims.32 They first argue the trial
    
    judge    mistakenly       applied    New    York's    statute      of     limitations
    
    rather    than    New     Jersey's       more   generous       time-bar    to      their
    
    disparagement      claim,33       and,     second,    they      argue     the      judge
    
    erroneously      excluded    evidence      of   damages    on    their     claims       of
    
    disparagement       and     tortious       interference         with      prospective
    
    economic advantage.
    
    
                              (1) Statute of Limitations
                              Applicable to Plaintiffs'
                                  Disparagement Claim
    
         Plaintiffs argue the trial judge erred in ascertaining the
    
    appropriate      statute     of   limitations        to   be    applied     to     their
    
    disparagement claim. They argued in the trial court that New
    
    
    
    
    32 Plaintiffs do not address in their appeal the trial court's
    disposition of their tortious interference with contractual
    relations claim.
    
    33Morgan Keegan has not only responded to plaintiffs' arguments
    about the applicable time-bar, but has also cross-appealed and
    argues, among other things, that the trial judge erred in
    applying New York's three-year statute of limitations instead of
    New York's one-year limitation period.
    
    
    
                                               73                                   A-0963-12T1
    Jersey's six-year statute of limitations34 applied, Morgan Keegan
    
    argued   for    application     of     New       York's    one-year    statute       of
    
    limitations,35 and the trial judge found controlling the three-
    
    year New York statute of limitations.36
    
          After    this   appeal   was    argued       the    Supreme   Court   decided
    
    McCarrell v. Hoffmann-LaRoche, Inc., supra, 227 N.J. at 574-75,37
    
    which illuminates our way by holding that section 142 of the
    
    Second Restatement "is now the operative choice-of-law rule for
    
    resolving     statute-of-limitations            conflicts    because   it   .    .   .
    
    channel[s] judicial discretion and lead[s] to more predictable
    
    and   uniform     results      that    are        consistent    with    the      just
    
    expectations of the parties." The Court described its holding as
    
    "a    natural     progression         in        [its]     conversion    from      the
    
    governmental-interest       test      to    the    Second    Restatement      [which
    
    
    34N.J.S.A. 2A:14-1 (declaring that "[e]very action at law for .
    . . any tortious injury to real or personal property . . . shall
    be commenced within 6 years next after the cause of any such
    action shall have accrued").
    
    35N.Y. C.P.L.R. § 215(3) (declaring that "an action to recover
    damages for," among other things, "libel, slander, [and] false
    words causing special damages" "shall be commenced within one
    year").
    
    36N.Y. C.P.L.R. § 214(4) (declaring that "an action to recover
    damages for an injury to property" "must be commenced within
    three years").
    
    37We invited and recently received and considered the parties'
    supplemental briefs on McCarrell's impact on the issues in this
    case.
    
    
    
                                               74                               A-0963-12T1
    began] in P.V.[, supra,] 
    197 N.J. 132
    ," and which adopted the
    
    methodology         described    earlier     in    this   opinion     for      resolving
    
    conflicts concerning substantive tort law. McCarrell, supra, 227
    
    N.J. at 574-75. McCarrell's approach has certainly simplified
    
    the disposition of most conflicts concerning a choice between
    
    two or more states' statutes of limitations.
    
        The       process     starts    with     an    understanding      that      when   an
    
    action       is   commenced     here,     "New    Jersey's    choice-of-law         rules
    
    [apply]      in   deciding      whether    this    State's     or   another     state's
    
    statute      of   limitations      governs       the   matter."     Id.   at    583.   In
    
    defining      New    Jersey     choice-of-law      rules,     the   McCarrell       Court
    
    instructed that the first matter of interest is whether there is
    
    a "true conflict." Id. at 584. "When application of the forum
    
    state's or another state's statute of limitations results in the
    
    same outcome, no conflict exists, and the law of the forum state
    
    governs." Ibid. (citing Rowe v. Hoffmann-La Roche, Inc., 
    189 N.J. 615
    , 621 (2007)). A true conflict occurs "when a complaint
    
    is timely filed within one state's statute of limitations but is
    
    filed outside another state's." Ibid. (citing Schmelze v. ALZA
    
    Corp., 
    561 F. Supp. 2d 1046
    , 1048 (D. Minn. 2008)).
    
        We can perceive a circumstance – perhaps applicable here –
    
    where    a    complaint    is    filed     within      time   regardless       of   which
    
    competing state's statute of limitations is applied, but the
    
    
    
    
                                                75                                  A-0963-12T1
    scope   of    the    claim      is   limited       or   enhanced      depending     on   the
    
    statute of limitations applied. For example, a plaintiff may sue
    
    on a series of defamatory statements occurring over the course
    
    of two years. If one state has a one-year statute of limitations
    
    and   the    other    has       a    two-year      statute     of     limitations,        the
    
    plaintiff's     suit       –    if    filed      within     one     year    of    the    last
    
    defamatory statement – would be timely filed pursuant to either
    
    state's statute of limitations. But, if the one-year statute of
    
    limitations is found applicable, the allegations or resulting
    
    damages      would    be       limited      by     that     choice     of   law    because
    
    allegations     of    defamatory           statements       made     more   than    a    year
    
    before the suit's commencement would not be cognizable. That
    
    particular     problem         was   not    likely        contemplated      in    McCarrell
    
    because the facts didn't warrant its consideration; that product
    
    liability action was either timely if our statute of limitations
    
    applied or entirely barred if Alabama's applied.
    
          In any event, other than referring to a "true conflict" as
    
    one which makes a difference as to the timeliness of the suit,
    
    the Court also emphasized that the test is whether the choice of
    
    "statute of limitations is outcome determinative." Id. at 584
    
    (emphasis added). In the example we have provided, the outcome
    
    would be impacted if a suit would be timely under either statute
    
    of limitations because, if the shorter limitations period was
    
    
    
    
                                                  76                                   A-0963-12T1
    applied, only the defamatory statements asserted within one year
    
    of the filing would be actionable. In ascertaining the existence
    
    of a true conflict, we assume the McCarrell Court intended the
    
    broader view suggested by its "outcome determinative" language.
    
    Indeed, later in the opinion, the Court again emphasized that
    
    whether the conflict is "outcome determinative" is the question,
    
    and, in that regard, the Court quoted with approval a federal
    
    judge who stated, in a different way, that there is no conflict
    
    if "'there is no divergence between the potentially applicable
    
    laws.'" Id. at 591 n.9 (quoting Spence-Parker v. Del. River &
    
    Bay Auth., 
    656 F. Supp. 2d 488
    , 497 (D.N.J. 2009)). Because some
    
    or   most    of    defendants'    allegedly      disparaging       statements    from
    
    2002 to 2006 would cease to be actionable if a shorter New York
    
    statute – either New York's one-year or its three-year statute
    
    of   limitations      –   were   to    be   applied    to   this    2006    complaint
    
    rather      than    New     Jersey's    six-year      statute      of    limitations,
    
    N.J.S.A. 2A:14-1, we conclude that the choice-of-law decision
    
    here is "outcome determinative" and requires a resolution.
    
           There being a true conflict, McCarrell instructs, 227 N.J.
    
    at 592-93, that we must apply the Second Restatement's section
    
    142,     which     states     that,    "barring    exceptional          circumstances
    
    [that] make such a result unreasonable":
    
                 (1) The forum will apply its own statute of
                 limitations barring the claim.
    
    
    
                                                77                               A-0963-12T1
             (2) The forum will apply its own statute of
             limitations permitting the claim unless:
    
                   (a) maintenance of the claim would
                   serve no substantial interest of
                   the forum; and
    
                   (b) the claim would be barred
                   under the statute of limitations
                   of   a   state    having   a more
                   significant relationship to the
                   parties and the occurrence.
    
    Because application of N.J.S.A. 2A:14-1 permits the maintenance
    
    of the claim, subsection (1) of section 142 has no application.
    
    We, thus, gaze toward section 142's subsection (2). And, as the
    
    Court held, under section 142(2)(a), "the statute of limitations
    
    of the forum state generally applies whenever that state has a
    
    substantial   interest   in   the    maintenance   of   the   claim."
    
    McCarrell, supra, 227 N.J. at 593. If that is so, then "the
    
    inquiry ends." Ibid. It is "[o]nly when the forum state has 'no
    
    substantial interest' in the maintenance of the claim [that] a
    
    court [would] consider [s]ection 142(2)(b) – whether 'the claim
    
    would be barred under the statute of limitations of a state
    
    having a more significant relationship to the parties and the
    
    occurrence.'" Ibid.
    
        In this case, section 142 is easily applied, as anticipated
    
    by McCarrell's description of the test. Ibid. (observing that
    
    section 142: "benefits from an ease of application; places both
    
    
    
    
                                    78                            A-0963-12T1
    this State's and out-of-state's citizens on an equal playing
    
    field,       thus        promoting        principles             of      comity;      advances
    
    predictability and uniformity in decision-making; and allows for
    
    greater certainty in the expectations of the parties").                                  Section
    
    142 "makes clear that when New Jersey has a substantial interest
    
    in the litigation and is the forum state, it will generally
    
    apply its statute of limitations." Ibid. Stated another way,
    
    under section 142, the forum state "presumptively applies its
    
    own statute of limitations unless . . . [it] has no significant
    
    interest in the maintenance of the claim and the other state,
    
    whose statute has expired, has 'a more significant relationship
    
    to the parties and the occurrence,' . . . or . . . given 'the
    
    exceptional        circumstances        of     the       case,'    following       the    Second
    
    Restatement         rule        would   lead        to     an     unreasonable        result."
    
    McCarrell, supra, 227 N.J. at 597.
    
           There       is    no     doubt   that    New        Jersey       has   a    substantial
    
    interest in this litigation. One of the plaintiffs – C&F – has
    
    its    principal         place     of   business          in    New     Jersey     and    claims
    
    injuries to its business caused by the alleged disparagement of
    
    it    and    its    products.       Because      New          Jersey    has   a    significant
    
    interest, it is irrelevant under section 142 that New York has a
    
    "more       significant          relationship            to     the     parties      and       the
    
    occurrence."            Ibid.    Absent      "exceptional              circumstances,"         not
    
    
    
    
                                                   79                                        A-0963-12T1
    remotely      suggested        here,      that          this     would      "lead       to    an
    
    unreasonable result," the test described in McCarrell requires
    
    application of our own statute of limitations. Ibid.
    
          Consequently, the timeliness of plaintiffs' disparagement
    
    cause of action – the only claim as to which plaintiffs argue
    
    the   judge   erred     in    applying        a    shorter,       New    York     statute     of
    
    limitations       –     is    governed            by     our     six-year        statute       of
    
    limitations. N.J.S.A. 2A:14-1.38 See Patel v. Soriano, 369 N.J.
    
    Super.    192,    247    (App.     Div.),         certif.       denied,     
    182 N.J. 141
    
    (2004).    Although          New   Jersey          has     a     one-year        statute      of
    
    limitations for libel and slander of a person, N.J.S.A. 2A:14-3,
    
    plaintiffs claim commercial disparagement of their business and
    
    products, sometimes referred to as trade libel. Patel, supra,
    
    369 N.J. Super. at 246-47. In New Jersey, "a claim for trade
    
    libel is subject to the general six-year statute of limitations
    
    applicable       to   malicious         interference            claims."        Id.   at     247.
    
    Moreover, that statute of limitations applies to disparagement
    
    whether    "the       aspersion         reflects         only     on     the     quality      of
    
    plaintiff's       products,        or    on       the     character        of     plaintiff's
    
    
    
    
    38For these same reasons, we reject the argument Morgan Keegan
    asserted in its cross-appeal that the trial judge erred in
    applying New York's three-year statute of limitations, instead
    of New York's one-year statute of limitations.
    
    
    
                                                  80                                       A-0963-12T1
    business   as   such."   Ibid.39   Therefore,   "the   more   restricted
    
    statute of limitations for slander does not apply" here. Id. at
    
    249.
    
           The six-year statute of limitations applies to plaintiffs'
    
    disparagement claims, as well as their other common law causes
    
    of action. The trial judge erred in applying a shorter statute
    
    of limitations.
    
    
    
    
    39 As the trial judge recognized, a statement that attacks an
    insurance company as a fraud or a Ponzi scheme, or an assertion
    that it is insolvent or bankrupt, among other similar things,
    may constitute an attack on its products. Here, statements
    disparaging the financial condition of plaintiffs may have a
    direct link to its products; plaintiffs are in the business,
    through the sale of insurance policies, of making promises to
    clients to pay them money in the future in the event of certain
    occurrences. Statements that question plaintiffs' ability to
    make those payments strike at both the heart of their reputation
    and the products they sell – a view that can be seen in the
    assertions of Fairfax's chairman and chief executive officer:
    
               When you're in the insurance business and
               you are selling a promise to pay a claim in
               a year or two or three or four, when you
               have all of this noise . . . when there
               [are] statements made that the company is
               bankrupt, of course, you have clients who
               would not do business with you. Why would a
               client do business with a property casualty
               insurance company that's going bankrupt?
    
    
    
                                       81                           A-0963-12T1
                              2. Dismissal of Plaintiffs'
                       Disparagement and Tortious Interference
                      With Prospective Economic Advantage Claims
                       Based on the Absence of Special Damages
    
           Plaintiffs also argue the trial court erred in excluding
    
    evidence       of     damages            allegedly     incurred       because      of     both
    
    disparagement            and        tortious    interference          with       prospective
    
    economic advantage. This involves not only a determination of
    
    which       state's       substantive          law     applies      in      assessing      the
    
    maintainability of those common law actions but also the content
    
    of that substantive law.
    
    
                                          (a) Choice of Law
    
           We need not discuss at length our determination that New
    
    York    provides         the    substantive      law     applicable         to   plaintiffs'
    
    common      law     causes          of     action.     Although       the    choice-of-law
    
    principles        discussed           in    Section     IV(B)(1),        supra,     required
    
    application         of    this       State's    statute        of   limitations,        other
    
    choice-of-law principles – already discussed in Section IV(A),
    
    supra,      which    led       to    our   affirmance     of    the    dismissal     of    the
    
    racketeering claim – compel the adoption of New York's common
    
    law    in    assessing         the       sufficiency    of     plaintiffs'        claims   of
    
    
    
    
                                                   82                                   A-0963-12T1
    disparagement        and        tortious     interference          with     prospective
    
    economic advantages.40
    
    
                                       (b) Common Law
                                        Requirements
    
           The parties' chief bone of contention concerns the types of
    
    damages plaintiffs were required to assert and prove to sustain
    
    their    claims   of       disparagement         and    tortious     inference        with
    
    prospective economic advantage. We discuss these separately.
    
    
                                      (i) Disparagement
    
           We initially observe that, in New York, defamation claims,
    
    which    are    akin       to    disparagement         claims,     require     "special
    
    damages," meaning an economic loss resulting from the harm to
    
    the    plaintiff's     reputation.         Liberman     v.    Gelstein,     
    605 N.E.2d 344
    , 347 (N.Y. 1992); Matherson v. Marchello, 
    473 N.Y.S.2d 998
    ,
    
    1000    (App.   Div.    1984).      This     requires        the   identification        of
    
    customers who would have dealt with the plaintiff but for the
    
    reputational harm. Squire Records, Inc. v. Vanguard Recording
    
    Soc'y, Inc., 
    226 N.E.2d 542
    , 543 (N.Y. 1967);                             Drug Research
    
    Corp. v. Curtis Publ'g Co., 
    166 N.E.2d 319
    , 322 (N.Y. 1960);
    
    DiSanto v. Forsyth, 
    684 N.Y.S.2d 628
    , 629 (App. Div. 1999);
    
    
    
    40We will not conduct an individualized choice-of-law assessment
    regarding plaintiffs' common-law claims for reasons expressed
    earlier. See Section IV(A)(3)(b), supra.
    
    
    
                                                83                                    A-0963-12T1
    Waste Distillation Tech., Inc. v. Blasland & Bouck Eng'rs, P.C.,
    
    
    523 N.Y.S.2d 875
    , 877 (App. Div. 1988).
    
           This principle seems to have emanated from New York state
    
    courts' disagreements with one federal case in New York that had
    
    allowed a substitute measure of damages for a plaintiff that
    
    sold its product only by mail order. Charles Atlas, Ltd. v.
    
    Time-Life Books, Inc., 
    570 F. Supp. 150
    , 156 (S.D.N.Y. 1983).
    
    The district judge in Charles Atlas held that it was "virtually
    
    impossible to identify those who did not order the plaintiff's
    
    product because of the" product disparagement, and allowed the
    
    plaintiff    "to   prove   lost   sales   by   other   means"    as   long   as
    
    "'other    factors   [are]    satisfactorily     excluded   by    sufficient
    
    evidence[.]'" Ibid. (quoting William L. Prosser, Handbook of the
    
    Law of Torts § 128, at 923-24 (4th ed. 1971)).41 In rejecting
    
    
    
    41   Dean Prosser observed:
    
                [T]he whole modern tendency is away from any
                such arbitrary rule. Starting with a few
                cases involving goods offered for sale at an
                auction, and extending to others in which
                there has been obvious impossibility of any
                identification of the lost customers, a more
                liberal rule has been applied, requiring the
                plaintiff to be particular only where it is
                reasonable to expect him to do so. It is
                probably still the law everywhere that he
                must either offer the names of those who
                have failed to purchase or explain why it is
                impossible for him to do so; but where he
                cannot, the matter is dealt with by analogy
                                                           (continued)
    
    
                                         84                               A-0963-12T1
    Charles    Atlas,    New       York's    Appellate      Division       held    that     a
    
    disparagement     claim       is   dependent      on   "evidence       of   particular
    
    persons who ceased to be or refused to become customers." De
    
    Marco-Stone Funeral Home Inc. v. WEBG Broadcasting Inc., 
    610 N.Y.S.2d 666
    ,     668   (App.     Div.      1994);   see    also    Prince    v.    Fox
    
    Television   Stations,         Inc.,    
    941 N.Y.S.2d 488
    ,    488    (App.    Div.
    
    2012).
    
    
                         (ii) Tortious Interference With
                         Prospective Economic Advantage
    
        To     sustain        a    claim    for      tortious      interference          with
    
    prospective economic advantage pursuant to New York substantive
    
    law: there must be a prospective business relationship between
    
    the plaintiff and a third party; the defendant must know of that
    
    relationship      and         intentionally       interfere          with     it;     the
    
    defendant's means of interference must amount to a crime, an
    
    independent tort, or conduct that arose solely out of malice;
    
    and the result must be some injury to the relationship with the
    
    third party. Posner v. Lewis, 
    965 N.E.2d 949
    , 952 n.2 (N.Y.
    
    
    
    (continued)
              to the proof of lost profits resulting from
              breach of contract. If the possibility that
              other factors have caused the loss of the
              general business is satisfactorily excluded
              by sufficient evidence, this seems entirely
              justified   by  the   necessities  of   the
              situation.
    
    
    
                                               85                                  A-0963-12T1
    2012); Carvel Corp. v. Noonan, 
    818 N.E.2d 1100
    , 1102-03 (N.Y.
    
    2004); Amaranth LLC v. J.P. Morgan Chase & Co., 
    888 N.Y.S.2d 489
    , 494-96 (App. Div. 2009). The requirement to specifically
    
    identify    the   business      lost    is    the        same    as   noted     above    with
    
    regard to disparagement claims.
    
          The    business     prospect          must        be    identifiable,       and     the
    
    plaintiff must show that it would have obtained that prospect's
    
    business but for the interference. Learning Annex Holdings, LLC
    
    v.   Gittelman,     
    850 N.Y.S.2d 422
    ,    423       (App.     Div.    2008).   The
    
    defendant    must    know       of    the     specific          third    party    and     the
    
    prospective business relationship. See GS Plasticos Limitada v.
    
    Bureau Veritas Consumer Prods. Servs., Inc., 
    931 N.Y.S.2d 567
    ,
    
    568 (App. Div.), appeal denied, 
    957 N.E.2d 1159
     (N.Y. 2011).
    
    
                                 (c) Damages Asserted
    
          To    maintain      its       common        law     claims,       C&F's    marketing
    
    department    developed         a    list     of        180   specifically-identified
    
    customers or potential customers whose business it claims C&F
    
    would have maintained or secured but for defendants' wrongful
    
    acts. C&F employees developed a model of the lost revenue and
    
    profits for each such customer. For the period between 2003 and
    
    2009, they estimated the lost revenue at $102 million and lost
    
    profits at $19 million; the total volume of business "quoted but
    
    not written" by C&F during that period was approximated at $14
    
    
    
                                                 86                                    A-0963-12T1
    billion,     of     which       the   revenue        lost     on    those      180      accounts
    
    represented less than one percent.
    
           Jorge    Echemendia,           a   corporate         representative           of    United
    
    States Fire Insurance Company, a wholly-owned subsidiary of C&F,
    
    testified      at    a    deposition        that     he     and    another     C&F      employee
    
    developed      the       list    from     C&F's      records,       which      included          the
    
    customer call report system that was used to archive notes on
    
    existing and potential accounts, and from communications with
    
    brokers      and     other      producers.         C&F      recognized       in    2004        that
    
    customers were paying greater attention to an insurer's ratings
    
    and financial capacity, and it accordingly added those concerns
    
    to the list of reasons that could be cited in a call report as a
    
    cause for losing a particular customer.                            Approximately 170 of
    
    the    180   accounts        in    the      list     were     identified          due     to     the
    
    selection of such a reason in the call report, while the rest
    
    were   identified         from    emails        that     attributed      the      loss      of   an
    
    account to those reasons.
    
           The trial court found no proof the 180 customers relied on
    
    defendants'          statements.            But        plaintiffs       proffered              that
    
    defendants' scheme was designed to disparage and interfere by
    
    lowering     C&F's       ratings      and    to      cast    doubt    on     the     financial
    
    soundness of C&F and its parent. Plaintiffs' proofs that these
    
    180    customers         relied    on     the     resulting        reduced        ratings        and
    
    
    
    
                                                    87                                        A-0963-12T1
    financial        reputation     indicated          these     customers            relied       on
    
    defendants'       statements       indirectly,         as        defendants         allegedly
    
    intended.    For     example,    plaintiffs         cited        a    March      2005    email,
    
    which followed a March 2005 rating agency report. Echemendia
    
    also asserted that "a few" of "the articles distributed by the
    
    defendants" were named in a call report or in an email.
    
           The question before us is not whether these assertions of
    
    lost    business     are     persuasive       or   even      whether        they     must      be
    
    presented through expert opinion. The question as we understand
    
    it, in light of the trial court's disposition and in light of
    
    New York law, requires a determination of whether plaintiffs
    
    asserted     a   loss   of    business       sufficient          to    withstand        summary
    
    disposition. We find plaintiffs' allegations regarding the 180
    
    lost     customers      were     sufficiently          specific             to     meet       the
    
    requirements of New York law.42
    
    
                                        3. Summary
    
           For   these      reasons,       our    review        of       the    trial       judge's
    
    disposition of the two common law causes of action referred to
    
    in     plaintiffs'      appeal     –     disparagement                and   the      tortious
    
    
    
    42 Because plaintiffs' disparagement and tortious interference
    with prospective economic advantage claims survive, their claim
    of a civil conspiracy may also be further maintained. Corris v.
    White, 
    289 N.Y.S.2d 371
    , 374 (App. Div. 1968); see also Banco
    Popular N. Am. v. Gandi, 
    184 N.J. 161
    , 177-78 (2005).
    
    
    
                                                 88                                         A-0963-12T1
    interference with prospective economic advantage – leads us to
    
    conclude      that:   New   Jersey's   six-year      statute     of    limitations
    
    applies to those claims; New York law imposes a requirement that
    
    plaintiffs     allege     special   damages;   and    summary      judgment     was
    
    erroneously      granted    because    the   claim    of   180    lost    business
    
    prospects was sufficient to meet the requirements of New York
    
    law.
    
    
                                            C
    
                          THE PERSONAL JURISDICTION RULINGS
    
           Plaintiffs argue that the trial judge erred in dismissing
    
    the Kynikos and Third Point defendants for lack of personal
    
    jurisdiction. Plaintiffs assert that those defendants ought to
    
    be held subject to suit in New Jersey because they participated
    
    in the overarching conspiracy to harm them. In response, these
    
    defendants argue that our courts do not recognize conspiracy-
    
    based jurisdiction and, alternatively, that plaintiffs have not
    
    presented any competent evidence to show they were part of a
    
    conspiracy. As required by Brill, supra, 142 N.J. at 540, we
    
    assume plaintiffs' allegations regarding these defendants are
    
    true    for    purposes     of   determining    whether     the       trial   court
    
    properly      granted     summary   judgment    on    personal        jurisdiction
    
    grounds.
    
    
    
    
                                           89                                 A-0963-12T1
           Before examining the relationship of these defendants to
    
    New Jersey, we first observe that the due process clause permits
    
    the assertion of personal jurisdiction over a nonresident in two
    
    ways – general and specific jurisdiction. Waste Mgmt., Inc. v.
    
    Admiral Ins. Co., 
    138 N.J. 106
    , 119 (1994), cert. denied, 
    513 U.S. 1183
    ,    
    115 S. Ct. 1175
    ,   130     L.    Ed.     2d   1128    (1995).     A
    
    nonresident's          continuous      and        systematic         contacts        that
    
    approximate       an     actual     presence           give     rise    to      general
    
    jurisdiction.      Ibid.     Specific        or    "case-linked"        jurisdiction
    
    "depends    on    an     'affiliatio[n]        between         the   forum    and     the
    
    underlying controversy,' principally, activity or an occurrence
    
    that takes place in the forum State and is therefore subject to
    
    the State's regulation." Goodyear Dunlop Tires Operations, S.A.
    
    v. Brown, 
    564 U.S. 915
    , 919, 
    131 S. Ct. 2846
    , 2851, 
    180 L. Ed. 2d
     796, 803 (2011) (quoting Arthur T. von Mehren & Donald T.
    
    Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79
    
    Harv. L. Rev. 1121, 1136 (1966)).
    
           We, thus, turn to the relationship between these two groups
    
    of defendants – the Kynikos and Third Point defendants – and
    
    this State, and examine whether there is jurisdiction in this
    
    State    over    these    defendants      through       a     consideration     of    the
    
    concepts of (1) general, (2) specific, and (3) conspiracy-based
    
    jurisdiction.
    
    
    
    
                                              90                                    A-0963-12T1
                                  1. General Jurisdiction
    
                                          (a) Kynikos
    
           Kynikos – formed in 1985 as a limited partnership organized
    
    in Delaware with its principal place of business in New York –
    
    is an investment advisor and management company that specializes
    
    in    short-selling      and     has    managed     over       $1     billion         for    its
    
    clients.    During the relevant period, Kynikos purchased services
    
    and products from New Jersey vendors; it did not, however, have
    
    any property, an office, a mailing address, a phone number, or a
    
    bank    account    in    this    State.      Kynikos         was    not    registered        to
    
    conduct    business      in    New     Jersey,    and    any       employees      who       were
    
    residents of New Jersey reported to Kynikos's offices in New
    
    York or London.
    
           Kynikos did not advertise its services in New Jersey. It
    
    operated a password-protected website, which only its existing
    
    or    prospective      clients       could   access.         Kynikos      had    seven      New
    
    Jersey clients between 2002 and 2007; those relationships were
    
    client-initiated and comprised less than one-half of one percent
    
    of Kynikos's total investment assets. Kynikos filed partnership
    
    tax    returns    in    New   Jersey     only     because      some       of    its   related
    
    entities    shared       partial       ownership        of     airplanes         that       were
    
    occasionally hangared at Teterboro Airport in Bergen County.
    
    
    
    
                                                 91                                       A-0963-12T1
          Defendant James S. Chanos, Kynikos's founder and president,
    
    was a New York resident; he did not have a New Jersey mailing
    
    address,    phone    number     or    bank       account.      Chanos    did    not    own
    
    property in New Jersey, and he was not obligated to file a
    
    personal income tax return in New Jersey. Like Kynikos, Chanos
    
    only filed partnership returns in connection with the airplanes
    
    in Bergen County.
    
          In   September    2000,      defendant       Jeffrey      Perry,    formerly      of
    
    SAC, joined Kynikos as a co-manager. After an alleged "falling
    
    out" with Chanos, Perry left Kynikos in 2005 and joined Third
    
    Point as a senior analyst.             He was a New York resident and had
    
    no New Jersey mailing address, phone number or bank account.
    
    Perry did not own property in, and did not regularly travel to,
    
    New   Jersey.     Although    he     paid    New    Jersey      taxes    in    2005    for
    
    earnings from an unrelated investment, he otherwise has not been
    
    obligated to file a personal income tax return in New Jersey.
    
          Kynikos traded in Fairfax stock between March 2002 and June
    
    2007, and in Odyssey stock between January 2006 and March 2007.
    
    Kynikos never held stock in, nor traded any interest in, C&F.
    
    
                                    (b) Third Point
    
          Third Point – a Delaware limited liability company with its
    
    principal    office     in    New     York       and    a   satellite         office    in
    
    California    –   was   an    employee-owned           hedge    fund    that    serviced
    
    
    
                                                92                                  A-0963-12T1
    pooled    investments     and   institutional      investors     and   had    an
    
    investment relationship with the Exis defendants.
    
          During the relevant period, Third Point provided management
    
    services to a number of funds that traded the securities of
    
    Fairfax   and   related    entities.    Those     funds   paid   Third    Point
    
    management fees; the funds themselves, however, are not parties
    
    to this suit and, in any event, had no New Jersey presence. The
    
    brokers who executed those trades were not located in New Jersey
    
    and no Third Point member resided in New Jersey.
    
          Between 2002 and 2006, New Jersey residents comprised only
    
    four percent of the investors in Third Point's funds, and less
    
    than two percent of the cash Third Point managed belonged to New
    
    Jersey investors. Third Point paid New Jersey taxes on behalf of
    
    its   investors,   but    the   Third     Point   funds   reimbursed      those
    
    outlays; Third Point itself did not pay New Jersey taxes.
    
          Third Point purchased services and products from New Jersey
    
    vendors, but those payments were minimal, representing less than
    
    one percent of Third Point's operating budgets between 2002 and
    
    2007. Third Point was not registered to conduct business in New
    
    Jersey, did not own or lease property here, and did not have any
    
    New Jersey-based offices, mailing addresses, phone numbers or
    
    bank accounts. Third Point did not send general solicitations to
    
    New Jersey residents unless such information was requested.
    
    
    
    
                                         93                                A-0963-12T1
        Defendant          Daniel   S.   Loeb     was   the   managing     member     and
    
    founder of Third Point and, as noted previously, Perry was a
    
    senior analyst. Both Loeb and Perry had their primary residences
    
    in New York and did not travel to New Jersey on a regular basis.
    
    Neither owned nor leased property in New Jersey or maintained a
    
    New Jersey mailing address or phone number.
    
        Loeb had personal accounts with various New Jersey savings
    
    banks, but he was not required to pay New Jersey income taxes.
    
    Plaintiffs alleged that Loeb directed Perry to help Contogouris
    
    develop    and        disseminate    false     information     about       Fairfax's
    
    health.
    
        Third Point traded extensively in the following entities
    
    and at the following times: (1) Fairfax, between June 2002 and
    
    February 2007; (2) Odyssey, between November 2005 and December
    
    2006;     (3)     Northbridge        Financial      Corporation,       a    Fairfax
    
    subsidiary located in Canada, between June 2002 and November
    
    2006;   and     (4)    C&F,   between   July    2006   and   April   2007.     Third
    
    Point's trading of C&F-related interests amounted to only three
    
    percent    of    its     overall     Fairfax-related      transactions.        Those
    
    interests, however, consisted of bonds that were not issued by
    
    C&F; they were instead originally issued by non-party Crum &
    
    Forster Funding Corp., a Delaware corporation. C&F assumed those
    
    
    
    
                                             94                                 A-0963-12T1
    bonds on June 30, 2003, through a transaction conducted in New
    
    York purportedly in accordance with New York law.
    
        Considering the contacts of the Kynikos and Third Point
    
    defendants, we conclude they are insufficient to give our courts
    
    general    jurisdiction       over    them    because       the    contacts      do    not
    
    constitute "continuous and systematic activities in the forum."
    
    Waste Mgmt., supra, 138 N.J. at 119.
    
    
                                2. Specific Jurisdiction
    
        There     being     no     basis     upon       which    to         assert   general
    
    jurisdiction over these defendants, we consider whether they had
    
    specific contacts with persons or entities in New Jersey that
    
    relate to the alleged enterprise or conspiracy. Although we do
    
    not have the benefit of the trial judge's view of plaintiffs'
    
    specific    allegations       of     communications         by     these     defendants
    
    toward    entities     or    persons    in    New    Jersey,       we     have   closely
    
    examined the record in light of the parties' arguments.                          We find
    
    any such communications to be so inconsequential as to justify
    
    rejection   of   the    argument       that   the    court        was    authorized     to
    
    exercise specific jurisdiction over these defendants.
    
    
    
    
                                             95                                      A-0963-12T1
         As   for      Kynikos,     plaintiffs   allude      to   a   handful    of
    
    communications it had with A.M. Best,43 CNBC,44 and "a New Jersey-
    
    based" Dow Jones reporter, Carol Redmond.45 And, as for Third
    
    Point, other than what has already been discussed, plaintiffs
    
    refer to communications – a few days before plaintiffs commenced
    
    this suit between Third Point and A.M. Best, as well as a number
    
    of other individuals, only a few of whom may have been located
    
    in New Jersey – that attached an article from The New York Post
    
    concerning Fairfax.
    
         These   few    communications     are   far   too   inconsequential      to
    
    warrant the assertion of jurisdiction over these defendants.
    
    
                                  3. Conspiracy-Based
                                     Jurisdiction
    
         Plaintiffs also contend that the court was authorized to
    
    assert jurisdiction over these defendants because of the actions
    
    of other alleged co-conspirators.
    
    
    43As for A.M. Best, the allegations seem to relate to a single
    email, which appears to have little significance to the issues
    at hand, since it appears to only pose questions about Fairfax
    subsidiaries other than C&F.
    
    44Plaintiffs do not claim Kynikos had direct contact with CNBC
    in New Jersey. Rather, plaintiffs referred in their opposing
    papers in the trial court to communications with a financial
    journalist located outside New Jersey who occasionally appeared
    on a show on CNBC, which broadcasts from Englewood Cliffs.
    
    45These communications related only to Kynikos's inclusion as a
    party to this lawsuit.
    
    
    
                                          96                              A-0963-12T1
           The trial judge determined, as he explained in his December
    
    23,    2011    written    decision,       that     plaintiffs         had     to      show
    
    defendants affirmatively injected themselves into New Jersey and
    
    that   mere    allegations      of   a   conspiracy      were    insufficient            to
    
    establish      the   requisite       minimum     contacts.       The    court         also
    
    rejected plaintiffs' contention that Fairfax's injuries could be
    
    attributed to C&F for the purpose of analyzing minimum contacts
    
    and concluded that a "comment made as to a Canadian company
    
    cannot by inference be applied to any and all subsidiaries of
    
    Fairfax.      That   [w]ould      unknowingly     impose     jurisdiction             upon
    
    defendants anywhere throughout the world."
    
           We   review   these     summary    determinations         de    novo.        Spring
    
    Creek Holding Co. v. Shinnihon U.S.A. Co., 
    399 N.J. Super. 158
    ,
    
    180 (App. Div.), certif. denied, 
    196 N.J. 85
     (2008); YA Global
    
    Invs., L.P. v. Cliff, 
    419 N.J. Super. 1
    , 8 (App. Div. 2011). To
    
    survive     these    motions,     plaintiffs     were    required       to    identify
    
    genuine disputes of material fact that could lead a rational
    
    factfinder to resolve the dispute in their favor. Brill, supra,
    
    142 N.J. at 540; Turner v. Wong, 
    363 N.J. Super. 186
    , 198-99
    
    (App. Div. 2003). Bare opposing conclusions and speculation are
    
    insufficient. Brill, supra, 142 N.J. at 541.
    
           In   applying     this     standard,      we     return     to       the      legal
    
    principles      that     govern      a   court's        exercise       of     personal
    
    
    
    
                                             97                                       A-0963-12T1
    jurisdiction. To start, it is of course self-evident that a
    
    court lacking personal jurisdiction has no authority over the
    
    nonresident. Burger King Corp. v. Rudzewicz, 
    471 U.S. 462
    , 471-
    
    72,   105    S.   Ct.   2174,    2181,     85   L.    Ed.    2d   528,   540    (1985);
    
    McKesson Corp. v. Hackensack Med. Imaging, 
    197 N.J. 262
    , 275
    
    (2009).     Although    New     Jersey's    long-arm        provision    permits     our
    
    courts to assert jurisdiction over nonresidents, the use of that
    
    authority must comply with the due process limits imposed by the
    
    United States Constitution. Avdel Corp. v. Mecure, 
    58 N.J. 264
    ,
    
    268   (1971);     Reliance      Nat'l    Ins.   Co.    in    Liquidation       v.   Dana
    
    Transp., Inc., 
    376 N.J. Super. 537
    , 543 (App. Div. 2005).
    
          As we have already observed, those limits recognize two
    
    types   of    personal    jurisdiction,         specific      and    general.       Waste
    
    Mgmt., Inc., supra, 138 N.J. at 119. A nonresident's direct
    
    contacts     with   the    forum    may     vest      the    court   with      specific
    
    jurisdiction; suits premised on a nonresident's continuous and
    
    systematic contacts give rise to general jurisdiction when they
    
    approximate an actual presence in the forum. Ibid.; Lebel v.
    
    Everglades Marina, Inc., 
    115 N.J. 317
    , 322-23 (1989).
    
          In assessing the sufficiency of the relationship between
    
    the forum and the nonresident, the initial step examines two
    
    factors: whether minimum contacts exist at all and whether those
    
    contacts provide adequate grounds for asserting jurisdiction. If
    
    
    
    
                                               98                                  A-0963-12T1
    a plaintiff demonstrates the existence of minimum contacts, the
    
    inquiry shifts to verifying that "the maintenance of the suit
    
    [would]     not    offend     'traditional    notions     of   fair     play    and
    
    substantial justice.'" Int'l Shoe Co. v. Washington, 
    326 U.S. 310
    , 316, 
    66 S. Ct. 154
    , 158, 
    90 L. Ed. 95
    , 102 (1945) (quoting
    
    Milliken v. Meyer, 
    311 U.S. 457
    , 463, 
    61 S. Ct. 339
    , 343, 85 L.
    
    Ed. 278, 283 (1940)); accord Blakey v. Cont'l Airlines, Inc.,
    
    
    164 N.J. 38
    , 71 (2000). Relevant factors in the "fair play"
    
    evaluation include "the burden on [the] defendant, the interests
    
    of   the   forum     state,     the   plaintiff's      interest   in    obtaining
    
    relief, the interstate judicial system's interest in efficient
    
    resolution of disputes, and the shared interest of the states in
    
    furthering        fundamental      substantive   social     policies."         Waste
    
    Mgmt., supra, 138 N.J. at 124-25.
    
          With respect to intentional torts, as alleged here, the
    
    question is whether an intentional act was "calculated to create
    
    an actionable event in a forum state." Blakey, supra, 164 N.J.
    
    at 67 (quoting Waste Mgmt., supra, 138 N.J. at 126). The Court
    
    recently reinforced in Walden v. Fiore, 
    571 U.S. 12
    , 14-15, 
    134 S. Ct. 1115
    , 1125, 
    188 L. Ed. 2d 12
    , 23 (2014), that the focus
    
    is on whether the nonresident "directed his conduct" at the
    
    plaintiff    whom     he    knew   had   connections    with   the     forum.   The
    
    plaintiff "cannot be the only link between the defendant and the
    
    
    
    
                                             99                               A-0963-12T1
    forum." Id. at 14, 134 S. Ct. at 1122, 188 L. Ed. 2d at 21. It
    
    is   "the    defendant's       conduct      that       must       form   the     necessary
    
    connection       with   the   forum   State    that       is      the    basis    for   its
    
    jurisdiction over him." Ibid. As stated in Burger King, supra,
    
    471 U.S. at 478, 105 S. Ct. at 2185, 85 L. Ed. 2d at 544-45,
    
    "[i]f the question is whether an individual's contact with an
    
    out-of-state party alone can automatically establish sufficient
    
    minimum contacts in the other party's home forum, we believe the
    
    answer clearly is that it cannot."
    
          In Walden, supra, 571 U.S. at 15, 134 S. Ct. at 1122, 188
    
    L.   Ed.    2d    at    21,   the   Court    found,          in    searching      for   the
    
    "necessary connection" between the nonresident's conduct and the
    
    forum, no such link even though the defendant in Georgia might
    
    have known that the plaintiffs could have felt the impact of his
    
    conduct in the forum. On the other hand, in an earlier case, the
    
    Court found a sufficient nexus when Florida defendants published
    
    an   allegedly      libelous    article      about       a     California        plaintiff
    
    knowing     their       publication      had       a     subscription            base     of
    
    approximately 600,000 readers in California. Calder v. Jones,
    
    
    465 U.S. 783
    , 785, 
    104 S. Ct. 1482
    , 1485, 
    79 L. Ed. 2d 804
    , 809-
    
    10   (1984).      The   principles    emanating          from       these      cases,   and
    
    others, direct that we first determine whether those defendants
    
    seeking to justify the dismissal based on personal jurisdiction
    
    
    
    
                                             100                                      A-0963-12T1
    had minimum contacts with New Jersey and, if so, whether those
    
    contacts represented deliberate attempts by those defendants to
    
    avail themselves of the forum. Lebel, supra, 115 N.J. at 322-24.
    
          With      respect    to       the   first        question     –    whether        these
    
    defendants had minimum contact with New Jersey — plaintiffs rely
    
    heavily    on    their    position        that      the   in-forum      contacts        of    a
    
    co-defendant      can,    as    a    matter      of    law,   be    imputed      to     other
    
    purported enterprise members by applying conspiracy or agency
    
    theories of liability. Although accepted in some courts, see
    
    Compania     Brasileira        Carbureto       De      Calicio     v.   Applied       Indus.
    
    Materials Corp., 
    640 F.3d 369
    , 372 (D.C. Cir. 2011); Melea, Ltd.
    
    v. Jawer Sa, 
    511 F.3d 1060
    , 1069 (10th Cir. 2007); Lolavar v. De
    
    Santibanes, 
    430 F.3d 221
    , 229 (4th Cir. 2005); Textor v. Board
    
    of Regents of N. Ill. Univ., 
    711 F.2d 1387
    , 1392-93 (7th Cir.
    
    1983), even those jurisdictions recognize that the theory might,
    
    at   times,     "subvert       the    due   process       principles          that    govern
    
    personal     jurisdiction,"          Newsome      v.   Gallacher,       
    722 F.3d 1257
    ,
    
    1265 (10th Cir. 2013). Other courts have rejected the theory.
    
    See Ploense v. Electrolux Home Prods., 
    882 N.E.2d 653
    , 665-67
    
    (Ill. App. 2007); OpenRisk, LLC v. Roston, 
    59 N.E.3d 456
     (Mass.
    
    App. 2016); Nat'l Indus. Sand Ass'n v. Gibson, 
    897 S.W.2d 769
    ,
    
    773 (Tex. 1995). One commentator has argued that its use is
    
    unconstitutional:
    
    
    
    
                                                101                                      A-0963-12T1
                 [B]efore [a court] may properly assert
                 jurisdiction, [it] must find actual or
                 constructive knowledge on the part of each
                 defendant that the conspiracy could lead to
                 the kind of significant contact with the
                 state that would support jurisdiction. It
                 cannot rely on a conspiracy "theory" to hold
                 every    individual   defendant    to    the
                 expectation of a particular forum simply
                 because one of the alleged co-conspirators
                 happened to choose that state as the place
                 to perform an act.
    
                     . . . .
    
                 [I]nsofar as conspiracy theory becomes a
                 device to bypass due process analysis, it is
                 plainly unconstitutional.
    
                 [Ann Althouse, The Use of Conspiracy Theory
                 to Establish In Personam Jurisdiction: A Due
                 Process Analysis, 52 Fordham L. Rev. 234,
                 253-54 (1983).]
    
    See   also   Rhett     Traband,   The    Case   Against   Applying    the     Co-
    
    Conspiracy     Venue    Theory    in    Private   Securities     Actions,      52
    
    Rutgers L. Rev. 227, 262 (1999) (criticizing this conspiracy
    
    approach because of its tendency to rely on "self-serving and
    
    often   conclusory     allegations,"      and   because   it   can   result    in
    
    subjecting a nonresident to "expedited and broad discovery," and
    
    the expenditure of funds "to defend in a forum with which the
    
    defendant had no contact"); Stuart Riback, Note, The Long Arm
    
    and Multiple Defendants: The Conspiracy Theory of In Personam
    
    Jurisdiction, 84 Colum. L. Rev. 506, 521 (1984) (concluding that
    
    "the conspiracy theory does not take into proper account the
    
    
    
    
                                            102                            A-0963-12T1
    International Shoe requirements [and] leads to undesirable and
    
    often unconstitutional results").
    
           Plaintiffs mistakenly rely on State, Department of Treasury
    
    v. Qwest Communications International, Inc., 
    387 N.J. Super. 487
    
    (App.     Div.   2006),       in    support       of    this     theory.    There,     the
    
    plaintiff      sued    Qwest   and    its     executive        officers    for   damages
    
    incurred when they allegedly conspired to inflate the price of
    
    Qwest's     stock.      Id.    at    493-94.       The     plaintiff       accused     the
    
    individual defendants, who were executive officers responsible
    
    for approving defendant's financial statements for filing with
    
    the     SEC,     of     intentionally         disseminating         false     financial
    
    statements through the company's investor relations division as
    
    an    inducement      to   invest.     Id.    at       501-02.    Those    nonresidents
    
    disputed personal jurisdiction on the ground that they had not
    
    known the company's investor relations division would transmit
    
    the   disputed        information     to    New    Jersey      investors.     Ibid.      We
    
    rejected       the      nonresidents'         "individual          protestations        of
    
    ignorance," recognizing "that a 'conspiracy theory' of personal
    
    jurisdiction is based on the 'time[-]honored notion that the
    
    acts of [a] conspirator in furtherance of a conspiracy may be
    
    attributed to the other members of the conspiracy.'" Id. at 503
    
    (quoting Textor, supra, 711 F.2d at 1392-93).
    
    
    
    
                                                103                                  A-0963-12T1
        Even       assuming        this          language      was    an     endorsement        of
    
    conspiracy-based              personal               jurisdiction,             Qwest         is
    
    distinguishable. There, "[t]he crux of the cause of action [was]
    
    the dissemination of fraudulent statements into this State that
    
    caused harm to NJT," a division of New Jersey's Department of
    
    Treasury.      Id.    at     499.      The    three     individual       defendants      "all
    
    signed    filings      with       the    SEC     that      included      allegedly      false
    
    statements that induced NJT to purchase and hold Qwest stock.
    
    NJT received in New Jersey specific notice of those filings and
    
    accompanying         press    releases         from     Qwest's    investor         relations
    
    division that included statements from all three defendants."
    
    Id. at 501. We found it reasonable to infer that the defendants
    
    were aware of this system of dissemination to major investors
    
    such as NJT. Id. at 502. Thus, it was a reasonable "inference
    
    and imputation of knowledge that the investor relations division
    
    would transmit the false statements to" NJT in New Jersey. Id.
    
    at 504.
    
        Here, by contrast, the crux of this alleged conspiracy was
    
    the dissemination of false statements to affect the financial
    
    markets   in    New     York      in     order    to    cause     harm    to    a    Canadian
    
    corporation.     These        defendants         did    not     make    statements       their
    
    alleged     co-conspirators                  distributed         into      New         Jersey.
    
    Importantly,     there       is     no    basis      for   an    inference      that     these
    
    
    
    
                                                   104                                   A-0963-12T1
    defendants were aware of any particular actions taken by their
    
    alleged co-conspirators in New Jersey. See Glaros v. Perse, 
    628 F.2d 679
    ,     682   (1st    Cir.         1980)     (holding   that   the    conspiracy
    
    theory of personal jurisdiction requires that "the out-of-state
    
    co-conspirator        was    or    should        have   been    aware"   of    the    acts
    
    performed in the forum state in furtherance of the conspiracy);
    
    Althouse, supra, 52 Fordham L. Rev. at 253 (observing that "a
    
    court must find actual or constructive knowledge on the part of
    
    each defendant that the conspiracy could lead to the kind of
    
    significant       contact         with         the    state     that   would    support
    
    jurisdiction").
    
           Absent such evidence, we reject the blanket rule urged by
    
    plaintiffs      in    favor       of       a    defendant-by-defendant         approach.
    
    Blakey, supra, 164 N.J. at 66; see also Lebel, supra, 115 N.J.
    
    at     321-22     (rejecting           a       "'stream-of-commerce'         theory     of
    
    jurisdiction" and opting to "stay with the basics"). Indeed, in
    
    other cases involving multiple defendants, our Supreme Court has
    
    warned that
    
                  if a suit contains multiple defendants,
                  their individual contacts to the forum state
                  cannot   be  aggregated   to   find  minimum
                  contacts for a single defendant. Similarly,
                  jurisdiction over one defendant may not be
                  based   on   the   activities    of  another
                  defendant, nor on the plaintiff's connection
                  to the forum state.     The requirements of
                  minimum contacts analysis "must be met as to
    
    
    
    
                                                   105                              A-0963-12T1
                  each defendant over whom                    a     state    court
                  exercises jurisdiction."
    
                  [Waste Mgmt., supra, 138 N.J. at 127
                  (quoting Rush v. Savchuk, 
    444 U.S. 320
    , 332,
                  
    100 S. Ct. 571
    , 579, 
    62 L. Ed. 2d 516
    , 527
                  (1980)).]
    
    In applying this standard, we must reject plaintiffs' claims
    
    that     courts     may    assert       personal          jurisdiction         over      these
    
    defendants      based     solely        on    actions         that     other    defendants
    
    allegedly     committed        within     New      Jersey      absent     evidence       these
    
    defendants      knew      or     should      have       known       their     alleged       co-
    
    conspirators would take action in this State.
    
           Plaintiffs have referred to a variety of emails and text
    
    messages exchanged between the defendants who obtained dismissal
    
    for    lack    of    personal        jurisdiction             and     other    defendants.
    
    "[C]ommunications with individuals and entities located in New
    
    Jersey     alone,"        however,        constitute           "insufficient          minimum
    
    contacts to establish personal jurisdiction over a defendant."
    
    Baanyan Software Servs., Inc. v. Kuncha, 
    433 N.J. Super. 466
    ,
    
    477 (App. Div. 2013). More importantly, the communications that
    
    plaintiffs        highlight       consist          of     information-sharing               and
    
    speculation       about    the    profitability           of     Fairfax's      securities
    
    exchanges.     There      was    nothing        objectively           actionable      in    the
    
    substance      of   the    communications            in       which    these    defendants
    
    participated. Plaintiffs' claims otherwise are based entirely on
    
    
    
    
                                                 106                                      A-0963-12T1
    speculation and innuendo and are wholly distinct from Qwest,
    
    supra,   387    N.J.      Super.   at    500,     where     the   "gravamen       of    the
    
    conduct alleged [was] the communication" itself. At best, any
    
    discussions     among      these    defendants       were       "peripheral       to    the
    
    conspiracy     alleged"      and    do     not    form     grounds    for    exercising
    
    personal jurisdiction. Id. at 503.
    
         Apart from plaintiffs' inability to show that the Kynikos
    
    and Third Point defendants had significant contacts with New
    
    Jersey, plaintiffs have not shown that whatever limited contacts
    
    these defendants may have had with New Jersey were sufficiently
    
    "purposeful" to impose jurisdiction. Plaintiffs were required to
    
    demonstrate that the contacts of these nonresidents with New
    
    Jersey resulted from deliberate conduct. Lebel, supra, 115 N.J.
    
    at 322-24 (citing World-Wide Volkswagen Corp. v. Woodson, 
    444 U.S. 286
    , 297-98, 
    100 S. Ct. 559
    , 567-68, 
    62 L. Ed. 2d 490
    , 501-
    
    02   (1980)).       The    goal     of     that    requirement        is     to     ensure
    
    predictability       and    to    shield    parties      from     being     "haled     into
    
    court in a foreign jurisdiction solely on the basis of random,
    
    fortuitous,     or     attenuated        contacts     or    as    a   result      of    the
    
    unilateral activity of some other party." Waste Mgmt., supra,
    
    138 N.J. at 121.
    
         Plaintiffs claim that these defendants purposely availed
    
    themselves     of    New   Jersey's      benefits        because,     in    their    view,
    
    
    
    
                                               107                                    A-0963-12T1
    defendants knew any harm to Fairfax would have a "cascading
    
    effect" that would extend to its subsidiaries, including the New
    
    Jersey-based C&F. Kynikos and Third Point's respective trading
    
    activities,        however,     belie    plaintiffs'       allegation       that    they
    
    specifically         targeted    C&F.    In   fact,    Kynikos      never    held    any
    
    investments in C&F. Third Point extensively traded securities
    
    related to Fairfax and many Fairfax's subsidiaries, but trades
    
    specific      to     C&F     amounted   to    only    three   percent        of    those
    
    transactions.
    
          Further, the bonds underlying those C&F trades were issued
    
    by Crum & Forster Funding Corp., a Delaware corporation, and
    
    then assumed by C&F. These facts are significant when viewed
    
    through the lens of the generally-accepted principle that the
    
    situs of intangible interests, like stock, is usually the state
    
    in which the entity is incorporated. State v. Garford Trucking,
    
    Inc.,     
    4 N.J. 346
    ,    351-53    (1950).   Because     the    bonds    in    this
    
    matter were issued by out-of-state entities, they arguably never
    
    found themselves within New Jersey's borders. Thus, Third Point
    
    could not have "reasonably anticipate[d] being haled into court"
    
    in New Jersey based on C&F's assumption of the bonds. World-Wide
    
    Volkswagen, supra, 444 U.S. at 297, 100 S. Ct. at 567, 
    62 L. Ed. 2d
       at   501.     Although     relevant,     even    if   those    bonds    could   be
    
    deemed to have entered New Jersey, the mere presence of Third
    
    
    
    
                                              108                                 A-0963-12T1
    Point's     property    in   New       Jersey,      standing       alone,    does    not
    
    establish jurisdiction; plaintiff was required to identify other
    
    facts to show minimum contacts. Shaffer v. Heitner, 
    433 U.S. 186
    , 209, 
    97 S. Ct. 2569
    , 2582, 
    53 L. Ed. 2d 683
    , 701 (1977);
    
    Appaloosa    Inv.,     L.P.I.    v.    J.P.      Morgan    Sec.,    Inc.,     398    N.J.
    
    Super. 52, 58 (App. Div. 2008). Given the number of Fairfax-
    
    related entities in which Third Point traded, the transactions
    
    involving C&F are not significant; that Third Point's trading of
    
    C&F-related    interests        represented       only     three    percent     of   its
    
    overall Fairfax holdings, and that those trades involved bonds
    
    that at the time of purchase were issued outside the state,
    
    defeat plaintiff's claim that Third Point set out to harm C&F.
    
        Focusing on C&F's lost customers does not alter the result.
    
    There is no more evidence that those relationships were targeted
    
    through   specific      conduct       in   New    Jersey    or     that     defendants'
    
    conduct was geared toward causing an effect in New Jersey than
    
    there was in Walden, where the defendant's conduct in Georgia
    
    interfered with the plaintiffs' possession of money they brought
    
    with them on a flight from Puerto Rico to Georgia, with                               an
    
    intention     to   travel    on       to   either     of    their     residences      in
    
    California and Nevada:
    
                [Plaintiffs'] claimed injury does not evince
                a connection between [defendant] and Nevada.
                Even if we consider the continuation of the
                seizure in Georgia to be a distinct injury,
    
    
    
                                               109                                 A-0963-12T1
             it is not the sort of effect that is
             tethered to Nevada in any meaningful way.
             [Plaintiffs] and only [plaintiffs] lacked
             access to their funds in Nevada not because
             anything independently occurred there, but
             because Nevada is where respondents chose to
             be at a time when they desired to use the
             funds seized by [defendant]. . . . Unlike
             the broad publication of the forum-focused
             story    in   Calder,    the    effects   of
             [defendant's] conduct on [plaintiffs] are
             not connected to the forum State in a way
             that makes those effects a proper basis for
             jurisdiction.
    
             [Walden, supra, 571 U.S. at 23, 134 S. Ct.
             at 1125, 188 L. Ed. 2d at 23-24.]
    
        Mere "random" and "attenuated contacts" with New Jersey are
    
    insufficient.   Waste   Mgmt.,   supra,   138   N.J.   at   121;   Baanyan,
    
    supra, 433 N.J. Super. at 475. Plaintiffs rely on the fact that
    
    C&F was a facet of Fairfax's consolidated financial statements
    
    in arguing that an attack on one entity was an attack on another
    
    or all. But they also recognize that harm to C&F was a byproduct
    
    and "cascading effect" of Fairfax's injuries. Therefore, unlike
    
    Qwest, supra, 387 N.J. Super. at 503, where there was a direct
    
    link between the defendants' financial misrepresentations and
    
    the impact to the New Jersey plaintiff, the harm to C&F, and
    
    thus to New Jersey, was largely derivative of that to Fairfax.
    
    Plaintiffs cite to authorities which are inapposite because in
    
    those cases the defendants knew their conduct would have a New
    
    Jersey impact. See Blakey, supra, 164 N.J. at 46 (finding "that
    
    
    
    
                                      110                              A-0963-12T1
    defendants who published defamatory electronic messages, with
    
    knowledge that the messages would be published in New Jersey and
    
    could influence a claimant's efforts to seek a remedy under New
    
    Jersey's Law Against Discrimination, may properly be subject to
    
    the   State's      jurisdiction");    Lebel,      supra,      115   N.J.   at    320
    
    (considering that the defendant actively solicited the business
    
    of a New Jersey plaintiff); Goldhaber v. Kohlenberg, 395 N.J.
    
    Super.     380,    389-90   (App.   Div.    2007)      (recognizing    that      the
    
    defendant "not only knew that plaintiffs resided in New Jersey,
    
    he knew the municipality in which they resided and made specific
    
    disparaging       references   to   that    municipality       in   many   of    his
    
    postings"); cf. Matsumoto v. Matsumoto, 
    335 N.J. Super. 174
    ,
    
    180-85 (App. Div.) (holding there was no personal jurisdiction
    
    over a foreign national who helped her son in an out-of-state
    
    conspiracy to violate his former wife's custody rights under
    
    their New Jersey divorce decree, even if she had retained title
    
    to the New Jersey marital home), aff'd in part, mod. in part on
    
    other grounds, 
    171 N.J. 110
     (2000).
    
          In   many    ways,    plaintiffs     seek   to   base    jurisdiction      for
    
    their claims against these defendants on the in-forum contacts
    
    of plaintiff's own subsidiary, C&F. By this logic, defendants
    
    would be subject to jurisdiction in any forum in which plaintiff
    
    had a subsidiary. Imposing jurisdiction on such "random" and
    
    
    
    
                                          111                                  A-0963-12T1
    "fortuitous"         grounds        would     undermine         the        due      process
    
    considerations on which the minimum contacts analysis is based.
    
    See Waste Mgmt., supra, 138 N.J. at 121; see also Kulko v.
    
    Superior Ct. of Cal., 
    436 U.S. 84
    , 93-94, 
    98 S. Ct. 1690
    , 1698,
    
    56   L.   Ed.   2d   132,     142   (1978).       Indeed,      such   an     exercise     of
    
    personal      jurisdiction      is     precluded         by    well-established          due
    
    process principles. Walden, supra, 571 U.S. at 15, 134 S. Ct. at
    
    1122, 188 L. Ed. 2d at 21 (holding that "plaintiff cannot be the
    
    only link between the defendant and the forum").
    
    
                                          4. Summary
    
          There     being    no    grounds       for    the       assertion      of    general
    
    jurisdiction,        plaintiffs       were    required         to     demonstrate,        in
    
    support of the exercise of specific jurisdiction or in support
    
    of   their    conspiracy-based        theory       of    jurisdiction,        that    these
    
    defendants "purposefully availed [them]sel[ves] of the privilege
    
    of   engaging    in     activities      within          the   forum    state,      thereby
    
    gaining the benefits and protections of its laws." Waste Mgmt.,
    
    supra, 138 N.J. at 120-21. For the reasons we have discussed, we
    
    conclude      that    these     defendants         could      not     have       reasonably
    
    anticipated "being haled into court in a foreign jurisdiction
    
    solely on the basis of [the] random, fortuitous, or attenunated
    
    contacts" asserted here. Id. at 121.
    
    
    
    
                                                112                                    A-0963-12T1
        We affirm the dismissal of the                       Kynikos and Third Point
    
    defendants on personal jurisdiction grounds.
    
    
                                                  D
    
                               THE SUMMARY JUDGMENTS
                          IN FAVOR OF THE SAC DEFENDANTS
                            AND THE ROCKER DEFENDANTS
    
        Plaintiffs        also      contend       that    the     trial       court      erred       in
    
    granting summary judgment to the SAC defendants and the Rocker
    
    defendants.      We view these matters separately.
    
    
                                    1. The SAC Defendants
    
                               (a) The Parties' Arguments
    
        In      granting       summary          judgment     in     favor          of        the    SAC
    
    defendants, the trial court concluded that SAC had not engaged
    
    in short-selling Fairfax equity securities and would actually
    
    "stand     to   lose"      money       if     the     alleged        scheme         succeeded.
    
    Plaintiffs,     however,        rely   on     evidence      that      suggests           the    SAC
    
    defendants      worked     with    enterprise         members       to    try       to    find     a
    
    negative    catalyst       to    drive      Fairfax's       stock     price         down,      and,
    
    after     receiving      non-public          information        of       the    anticipated
    
    adverse    report     by     Morgan         Keegan,    Cohen        and    Sigma          Capital
    
    Management, L.L.C., maintained or added to their short positions
    
    in Fairfax so they could profitably cover the stock price drop
    
    that would result when that report became public.                                   Plaintiffs
    
    
    
    
                                                 113                                          A-0963-12T1
    assert the record further shows the SAC defendants continued
    
    participation in the conspiracy in 2003 to 2006, well beyond the
    
    initial    acts,   by     increased   investments    in    Exis.    In   general,
    
    plaintiffs claim the trial judge erred in failing to give them
    
    the benefit of all favorable inferences regarding these facts,
    
    and, in that way, assumed or usurped the jury's fact-finding
    
    role.
    
           The SAC defendants argue that, unlike the other defendants
    
    that conceded trading in or communicating about Fairfax, they
    
    denied "any significant trading in Fairfax securities or having
    
    worked with or even communicated with the other [d]efendants
    
    regarding    Fairfax."      They    reject    plaintiffs'    characterization
    
    that     Contogouris       admitted    a     relationship     with       the    SAC
    
    defendants,      noting    that    Contogouris's    testimony,      in   context,
    
    constituted a denial that he spoke with defendant Cohen about
    
    Fairfax.
    
           The SAC defendants also argue that, for the entirety of the
    
    alleged    conspiracy,      its    economic    interests    in     Fairfax     were
    
    "either neutral or aligned with Fairfax's," a circumstance that
    
    would conclusively demonstrate they "had no economic interest in
    
    seeing     the   so-called     conspiracy     succeed."     SAC    invested       in
    
    Fairfax prior in time to when plaintiffs allege the conspiracy
    
    began; SAC was closing that short position in early 2003, and by
    
    
    
    
                                           114                                A-0963-12T1
    mid-September 2003 had "completely closed" its short position in
    
    Fairfax.     A    long-position             purchase    in      2004     aligned      SAC's
    
    interests with Fairfax and, therefore, contrary to the purposes
    
    of the alleged conspiracy. SAC had no position in Fairfax in
    
    2005,      and        considered       its         subsequent       short        positions
    
    inconsequential.         And,    to    the    extent    SAC     invested     in    outside
    
    entities, such as Exis and Bridger Capital Management, which
    
    both had invested in Fairfax, the SAC defendants assert these
    
    were    inconsequential,              and     they      denied       control       of      or
    
    communications about them with anyone relevant to the alleged
    
    conspiracy.       The    SAC    defendants          therefore    contend     plaintiffs
    
    failed to meet their burden of showing that they "purposefully
    
    and knowingly" engaged in a conspiracy, supported by permissible
    
    inferences       in     plaintiffs'         favor    that    were      not   "inherently
    
    implausible," and that the trial judge was correct in dismissing
    
    the claims asserted against the SAC defendants.
    
    
                              (b) The Trial Judge's Ruling
    
           The trial judge agreed with the SAC defendants' view. In
    
    September 2011,         the    judge    determined       that     although       over    200
    
    "disputed facts" were presented, "there really appears to be
    
    nothing    more       than    broad    speculation       based      on   circumstantial
    
    evidence" and plaintiffs failed to suggest "any inferences based
    
    upon    reasonable           facts    and     evidence"       that       would     suggest
    
    
    
                                                 115                                   A-0963-12T1
    otherwise. The judge, instead, believed plaintiffs had "tr[ied]
    
    to distort the record in an attempt to create their speculative
    
    assertions," and concluded that "the evidence on record is not
    
    enough   to    support    a   rational    finding      that    whatever       disputed
    
    issues   are    alleged    by     plaintiffs,    can    be    found    in     favor   of
    
    Fairfax." The court recognized that New Jersey's RICO and civil
    
    conspiracy laws can be viewed with leniency, allowing for some
    
    inferences     because     activities     may    have      taken      place    "behind
    
    closed doors," but basing a case entirely "on pure speculation
    
    is too big of a leap to take." The trial judge added:
    
                  Plaintiffs   have   pointed  to   no  direct
                  evidence which establishes a conspiracy of
                  which SAC was a part. . . . Most tellingly,
                  is   SAC's   trading   reports   in  Fairfax
                  securities. The fact that at no time did SAC
                  trade similarly to its alleged [e]nterprise
                  [m]embers    is   baffling,    and   without
                  explanation by plaintiffs. It does not make
                  sense that the alleged leader of the
                  conspiracy would not only NOT act as its
                  alleged cohorts did, but in fact, stand to
                  lose money as a result of the allege[d]
                  conspiracy.
    
        Finding      "no     direct    evidence     of   any     sort     of    conspiracy
    
    involving SAC to take down Fairfax, and any allegation of such,"
    
    viewing plaintiffs' allegations as "too much speculation based
    
    on circumstantial evidence to get past summary judgment," and
    
    concluding "[t]here is simply no evidence of motivation of [the]
    
    
    
    
                                             116                                   A-0963-12T1
    SAC    [defendants]     to     participate,     much     less   coordinate       the
    
    'conspiracy,'" the judge granted summary judgment.
    
    
                                       (c) Our Holding
    
           We disagree.        The judge was presented with a forty-eight
    
    page list of the statement of items relevant to the motion. To
    
    be sure, mere quantity will not tilt the scale, but summary
    
    judgment is "too fragile a foundation," Grow Co. v. Chokshi, 403
    
    N.J.   Super.    443,   470     (App.   Div.   2008)     (quoting     Petition    of
    
    Bloomfield S.S. Co., 
    298 F. Supp. 1239
    , 1242 (S.D.N.Y. 1969),
    
    aff’d, 
    422 F.2d 728
     (2d Cir. 1970)), for a disposition on the
    
    merits here. Indeed, there are assertions in the factual record
    
    that   raise     genuine      issues    regarding    the    claim     of   the   SAC
    
    defendants' participation in the scheme as to preclude summary
    
    judgment regardless of the extraordinary size of the record.
    
           The expert opinion submitted by plaintiffs could support a
    
    factfinder's determination that SAC took certain short positions
    
    that     gave    it    financial       goals   aligned      with    the    alleged
    
    conspiracy.      In a certification submitted in response to the SAC
    
    defendants'      motion,      plaintiffs'      expert,      Stanley    Fortgang,46
    
    opined    that   SAC    had    a   "substantial     known   short     interest    in
    
    
    
    46Fortgang was a consultant with approximately twenty-five years
    experience trading equities, bonds, and other securities for
    securities firms and hedge funds.
    
    
    
                                             117                               A-0963-12T1
    Fairfax     throughout       the    duration      of    the     conspiracy           and     a
    
    significant financial incentive to have acted in concert with
    
    other defendants and enterprise members in furtherance of the
    
    conspiracy."       He    also      explained      that        the       SAC    defendants
    
    "collaborated with other defendants and enterprise members with
    
    respect to their trading in Fairfax in order to depress the
    
    price of Fairfax stock, and profit from its short positions."
    
    These     bald    assertions       were   not     enough       to       defeat      summary
    
    judgment,    but   Fortgang        observed     that,    in    moving         for   summary
    
    judgment, the SAC defendants
    
                conveniently ignore[] trading in Fairfax's
                related entities, specifically Odyssey . . .
                under the ticker symbol ORH. However, the
                ledger of ORH trades shows that [SAC] held a
                short position in ORH during April 2002,
                from June 2002 through February 23, 2004
                (excepting for 2 distinct periods totaling
                approximately 30 days) and from July 2005 to
                September 2006 (except for a 15 day period
                from late July through early August 2006).
    
        Fortgang explained that the "stock price of Fairfax and
    
    Odyssey     are    directly        related      such    that        a    conspiracy        to
    
    manipulate the price of Fairfax could certainly include trading
    
    in ORH." He further found it "significant enough to justify its
    
    conduct" in the alleged conspiracy that SAC held a significant
    
    interest in outside funds including Exis and Bridger.                               SAC was
    
    Exis's largest investor and, through Exis, indirectly possessed
    
    short   positions       in   Fairfax.     And,     according            to    Contogouris,
    
    
    
                                              118                                       A-0963-12T1
    Exis's    "head    analyst,"      defendant     Steven   Cohen      had       frequent
    
    communications with him.
    
        Fortgang explained how this could be significant even where
    
    SAC's    actual    trading    activity     differed    from   the    activity        of
    
    other defendants:
    
                [SAC] is well known in the marketplace for
                having   a   unique  and   distinct   trading
                strategy more focused on short term gains
                than other [d]efendants. It is therefore
                reasonable to conclude that while pursuing
                its own trading strategy, [SAC] traded in
                collaboration with the enterprise despite
                the fact that their trading records are not
                identical to other enterprise members[].
    
        He added that the trading records showed that SAC "was
    
    certainly involved in trading on specific days and in the same
    
    direction as other defendants" and that the record further shows
    
    that many of those trades occurred "at times when significant
    
    communication occurred among the enterprise members." Fortgang
    
    further alluded to the fact that the SAC defendants' expert
    
    focused    only    on   whether    there      was   coordination      with       other
    
    defendants and enterprise members "over long periods of time,"
    
    noting that instead SAC could have chosen to "coordinate[] its
    
    trading    at     specific    critical       time   periods."    SAC's         trading
    
    approach        was,    nevertheless,         "consistent     with        a      stock
    
    manipulation      scheme     designed   to    profit   from   the    artificially
    
    depressed price of [Fairfax] and [Odyssey] stock . . . ." Even
    
    
    
    
                                            119                                   A-0963-12T1
    SAC's trading expert, Denise Martin, "concedes that a possible
    
    short   strategy       to    take    advantage    of   an    anticipated   negative
    
    event could be . . . to cover a short position in advance of
    
    that event after the anticipation of that event has already had
    
    an effect on the stock price."
    
           These contentions are further illuminated by SAC's guilty
    
    plea    to   a   2013       federal      indictment,    in   which   SAC   admitted
    
    widespread solicitation and use of illegal inside information
    
    and insider trading, for which it agreed to pay an aggregate
    
    financial penalty of $1.8 billion and agreed to terminate the
    
    investment advisory businesses of several named SAC entities.47
    
    Although     this      settlement         occurred     in    November   2013,       the
    
    stipulation      and    order       of   settlement    recites   that   the    period
    
    during which insider trading took place was between 1999 through
    
    at least in or about 2010, thus including the period relevant to
    
    plaintiffs' allegations.
    
           Plaintiffs'      statement         of   material      facts   submitted       in
    
    response to the SAC defendants' motion, includes numerous pages
    
    citing to and quoting documents describing SAC's early shorting
    
    of Fairfax in late 2002, its coordination with other alleged
    
    
    47 United States v. S.A.C. Capital Advisors, L.P., 13 Cr. 541
    (LTS), 13 Civ. 5182 (RJS) (S.D.N.Y. Nov. 2013), available at
    https://www.justice.gov/usao-sdny/pr/sac-capital-management-
    companies-plead-guilty-insider-trading-charges-manhattan-
    federal?print=1.
    
    
    
                                                120                               A-0963-12T1
    enterprise       members         regarding     Fairfax        and    the       need     for    a
    
    "catalyst" for short sellers, and its involvement in contacting
    
    analysts and reporters with an intent to trade ahead of negative
    
    articles. Citing to emails and SAC trading ledgers, plaintiffs
    
    claimed that SAC and its Bridger Capital account shorted in
    
    advance of an expected Canadian Imperial Bank of Commerce report
    
    by    Quentin    Broad      on     Fairfax,    and      SAC's     Sigma    account       began
    
    covering when it appeared that Broad's report would be delayed,
    
    but     it    then     began       "reshorting        those     covered        shares    after
    
    learning about the imminent publication of the Gwynn report,"
    
    covering at least 500 shares "at a drastically lower price –
    
    near the low of the day – after Gwynn published his report."
    
           Plaintiffs further described various contacts between SAC
    
    representatives         and        Morgan   Keegan,        including       a     request      in
    
    September       2003    for    a    reminder     of    what     Gwynn     had    said    about
    
    Fairfax's       use    of   finite     insurance.          Plaintiffs      also      cited    to
    
    SAC's $48 million interest as of May 2004 in Exis's Walrus Fund,
    
    Exis's       employment       of    Contogouris       in    March    2005       to    work    on
    
    Fairfax, and the fact that Steven Cohen knew Contogouris from
    
    his     prior    experience          with    him      on    the     Hanover       Compressor
    
    investment as to which defendant Cohen took a short position
    
    based    on     insider       information      from        Contogouris.         Accordingly,
    
    plaintiffs relied on Contogouris's assertion that in the spring
    
    
    
    
                                                 121                                      A-0963-12T1
    of   2006,       SAC     "called     Sender     and     wanted    some     of    .    .    .
    
    [Contogouris's]          research."       Based   on     the   information       gleaned
    
    through Contogouris's work on behalf of the alleged enterprise,
    
    plaintiffs were entitled to an inference that the SAC defendants
    
    were able to reap "substantial profitable returns from massive
    
    short positions that S.A.C.-related funds had assumed in Fairfax
    
    . . . ."
    
          Plaintiffs also asserted that, although the SAC defendants
    
    "attempt[] to narrowly interpret the relevant trading activity
    
    in   an   effort       to    minimize     the   extent    of     its    involvement       in
    
    trading Fairfax securities, the trading records produced by the
    
    [SAC]     [d]efendants           show    thousands      of     trades     in    Fairfax,
    
    including short trades that are not individually reflected in
    
    the [Fairfax] Ledger." Additional extensive trading was seen in
    
    Odyssey shares, and in options trades with Fairfax's stock – a
    
    lower     cost    way       to   "synthetically       short    Fairfax."       Plaintiffs
    
    asserted       that    although     SAC    at   times    "took     smaller      and   more
    
    short-term positions than other defendants, it often traded on
    
    the same days and in the same directions as those defendants,"
    
    citing     a     March      2006   SAC    short   position       taken    in    Fairfax.
    
    Consequently,            plaintiffs        contend       the       trading       records
    
    "demonstrate the opposite of what they have stated" in moving
    
    for summary judgment.
    
    
    
    
                                                122                                  A-0963-12T1
           Considering     that       the    matter     was    disposed       of   by   way    of
    
    summary judgment, and considering that we, too, are obligated to
    
    apply the Brill standard, see, e.g., Murray v. Plainfield Rescue
    
    Squad, 
    210 N.J. 581
    , 584 (2012), we conclude there are genuine
    
    factual disputes that precluded summary judgment. We agree with
    
    plaintiffs that the trial judge overlooked or otherwise resolved
    
    material factual disputes about SAC's trading during the period
    
    of the alleged enterprise. To be sure, at the conclusion of a
    
    trial,    the      factfinder       could     choose           to     reject   Fortgang's
    
    conclusions and find plaintiffs' interpretations of the facts
    
    less    credible     than    others      it   may       hear,       Poliseno   v.   General
    
    Motors    Corp.,     328    N.J.    Super.        41,     59    (App.    Div.),     certif.
    
    denied,    
    165 N.J. 138
        (2000),     but       for     purposes      of   summary
    
    judgment, plaintiffs were entitled to the benefit of the doubt
    
    on those matters.
    
    
                                2. The Rocker Defendants
    
                               (a) The Parties' Arguments
    
           Plaintiffs contend that, in granting summary judgment to
    
    the    Rocker    defendants,       the    judge     erred       because     judgment      was
    
    granted years before discovery was completed – indeed, before
    
    any depositions were taken – and because the judge relied on the
    
    opinion    of    a   discovery          master,     who,        in    plaintiffs'      view,
    
    improperly resolved disputed factual issues and incorporated his
    
    
    
                                               123                                      A-0963-12T1
    personal view of how securities markets operate in concluding
    
    that "Rocker's quick reaction to the negative report it received
    
    about Fairfax is hardly out of the ordinary." That conclusion
    
    purported to resolve disputed questions about when the Morgan
    
    Keegan report was officially published, when Rocker traded, and
    
    what       inferences     could        be     drawn     from     the     "speed       and
    
    aggressiveness" of Rocker's trades at and around the time of the
    
    report's publication.
    
           A   discovery     master       found   that    Rocker    began    trading      ten
    
    minutes      after    receiving       word    about   the     report,    and    without
    
    having seen the report. Plaintiffs contend these facts supported
    
    an inference that the Rocker defendants had prior knowledge of
    
    the report and the further inference that they were engaged in
    
    the conspiracy.         Moreover, plaintiffs assert that the discovery
    
    master relied upon an in camera review of Rocker's detailed
    
    trading records, which plaintiffs were not permitted to see and
    
    thus   could    not     test.    Plaintiffs        additionally    argue       that   the
    
    trial judge erred by improperly limiting the relevant issues for
    
    Rocker's participation in the conspiracy to just two events: (1)
    
    paying      Contogouris,        and    (2)    trading    in    advance     of    Morgan
    
    Keegan's initial January 2003 report.
    
    
    
    
                                                 124                                A-0963-12T1
                             (b) The Trial Judge's Ruling
    
           To be sure, the resolution of the claims against the Rocker
    
    defendants was unusual. In considering dispositive motions in
    
    2007, the trial judge stated a number of times: "I still don't
    
    know   what     the    Rocker   defendants   did."   She   asked   plaintiffs'
    
    counsel how quickly he could depose David Rocker if the motion
    
    to dismiss were to be denied, and counsel responded he could
    
    perhaps address the issue with more specific pleading, which was
    
    to be accomplished within two weeks, if needed. In clarifying
    
    and restating what would occur next, the trial judge stated that
    
    she    would    deny    Rocker's   motion,   without   prejudice,    and   that
    
    plaintiffs' and Rocker's counsel should talk. The judge added:
    
                   If you haven't been able to work it out,
                   he's going to amend the complaint. Yours is
                   going to be the first deposition, and you
                   can re[-]move . . . and . . . incorporate
                   the papers that you've already submitted,
                   with just . . . a summary brief on what
                   happened as far as the new pleading, and –
                   I'm trying to make it as inexpensive as
                   possible.
    
           The   Rocker     defendants   again   moved   for   dismissal   because
    
    plaintiffs did not avail themselves of the opportunity to depose
    
    Rocker. At the beginning of the argument, the court set forth
    
    the procedural background for the motion, specifically regarding
    
    the assertion by plaintiffs' counsel that plaintiffs "haven't
    
    had a chance to take the Rocker depositions." The trial judge
    
    
    
    
                                           125                             A-0963-12T1
    stated "that's not accurate[,] . . . just simply not accurate";
    
    she explained that, on September 7, 2007, "over a year ago, I
    
    told the plaintiffs to take Mr. Rocker's deposition."
    
         The trial judge recalled having been "ready to dismiss them
    
    on their motion to dismiss a year ago," but plaintiffs were
    
    given the time they requested to get together documents which
    
    would show a good faith basis for Rocker's continued inclusion
    
    as   defendants.       The   judge    recalled      having   told    plaintiffs'
    
    counsel "to share the evidence that they had with counsel for
    
    that particular defendant and if they didn't have a good faith
    
    basis for having them in the suit they should be dismissed." And
    
    she added, that she "didn't expect them to have to come in here
    
    and make another motion." More specifically, with regard to the
    
    Rocker defendants, the judge expressed that she "was assured
    
    that plaintiffs had a good faith basis, that somebody had given
    
    them the information." And she then recounted that she "said, .
    
    . . show them what it is, get it in the complaint, . . . and
    
    take a deposition" so that only individuals and entities that
    
    rightly belonged in the case would remain.
    
         At   the   motion's       conclusion,    the    judge   ruled      that:    "The
    
    Rocker    defendants     are    going   to    be    dismissed    from    the     suit
    
    without prejudice to an amended complaint being filed that comes
    
    forth    with   some    specific     conduct."     The   judge   relied     on    her
    
    
    
    
                                            126                                A-0963-12T1
    conclusion     that    the   proofs    of   any   wrongdoing    by    the     Rocker
    
    defendants in December 2002 were "too slippery and too tenuous,"
    
    and     were   further       attenuated      by     the   Rocker      defendants'
    
    contentions that they engaged in no trading as to Fairfax in
    
    December 2002 and had no Fairfax position until January 17,
    
    2003.    The   trial    judge    was   further      troubled   by     plaintiffs'
    
    failure to provide clear evidence as to when the Morgan Keegan
    
    report was published, even though their arguments as to the
    
    Rocker defendants assumed an afternoon publication on January
    
    17, 2003.
    
          The judge's decision also acknowledged "there may very well
    
    be reason[s] for bringing Rocker back into the complaint," if
    
    the discovery master's review showed some culpability. At the
    
    time, however, the judge found "there's really nothing" that
    
    implicated the Rocker defendants and rejected an inference of
    
    culpability     just    because    Rocker     and    Chanos    had    a   longtime
    
    friendship.     As     to    plaintiffs'     allegation    that      Rocker     paid
    
    Contogouris to do the things he did to hurt Fairfax, "if that is
    
    so, there has to be something before March of 2007 to link
    
    them," and the judge was shown no evidence of any such link.
    
          In December 2011, after the conclusion of discovery, the
    
    trial judge converted the summary judgment to a dismissal with
    
    prejudice, explaining that plaintiffs had failed to develop any
    
    
    
    
                                           127                                  A-0963-12T1
    evidence     to    support      the    claims       asserted    against   the    Rocker
    
    defendants.
    
    
                                         (c) Our Holding
    
          The     manner      in    which        the    action     against    the    Rocker
    
    defendants was disposed of is foreign to us. The problem is that
    
    the judge's "dismissal without prejudice" put the claims against
    
    the Rocker defendants in the unusual position of being neither
    
    in nor out, neither fish nor fowl. For these reasons, plaintiffs
    
    have argued that summary judgment was prematurely granted and,
    
    with no support, contend the Rocker defendants stonewalled them
    
    on   discovery      before      a    discovery      master     could   look   into     the
    
    issues they raised.
    
          It    is    clear    to   us    that    the    trial     judge   dismissed      with
    
    prejudice only after plaintiffs had a full and fair opportunity
    
    to obtain further discovery from the Rocker defendants and as to
    
    their alleged involvement. Plaintiffs also have presented very
    
    little about what they expected to find, so it all truly does
    
    seem more like a fishing expedition. With the vast amount of
    
    discovery available as it came from other parties, the trial
    
    judge   was      not   unreasonable          in    believing    plaintiffs      had    not
    
    sufficiently       shown    there      was    a    sound   basis   for    keeping      the
    
    Rocker defendants in the case. With the completion of discovery
    
    
    
    
                                                 128                                A-0963-12T1
    years    later,       there    is    nothing        to    suggest     any   substance       to
    
    plaintiffs' claims against the Rocker defendants.
    
           Consequently, we conclude that the trial judge did not err
    
    in granting summary judgment to the Rocker defendants, and we
    
    find plaintiffs' arguments to be without sufficient merit to
    
    warrant further discussion in this opinion. R. 2:11-3(e)(1)(E).
    
    
                                                  E
    
                                        LOST PROFITS AND
                                        THE ELSON REPORTS
    
           In   September     2012,       the     last       judge   to   preside    over      the
    
    matter       addressed          the         maintainability           of      plaintiffs'
    
    disparagement claim. The judge found sufficient evidence for a
    
    jury to find that defendants had intended to harm plaintiffs'
    
    interests;       he    further        found       those     interests       consisted       of
    
    plaintiffs' "ability to sell their insurance policies," which
    
    involved their "actual business dealings" rather than just their
    
    reputations. Product disparagement, however, as we have held,
    
    required proof of "special damages," and the trial judge ruled
    
    that only one alleged kind of loss could satisfy it, namely,
    
    C&F's injury from "products that were not sold." He concluded
    
    that     plaintiffs'      general       financial          losses,     such     as    losses
    
    arising from plaintiffs' offering of securities or the market
    
    trading     in    their       securities,      were        the   indirect     results       of
    
    
    
    
                                                  129                                    A-0963-12T1
    defendants' disparagement rather than the "direct and immediate"
    
    results of more targeted misconduct, and therefore could not be
    
    included in the disparagement claim. The judge found the same
    
    was   true    of     plaintiffs'       increased       auditing    costs     and    D&O
    
    insurance premiums, plaintiffs' inability to finance strategic
    
    acquisitions, and any legal costs. As a general matter, we agree
    
    with this conceptualization.
    
          These    rulings        narrowed   the    alleged     cognizable       "special
    
    damages"      to      C&F's     lost     customers.       Plaintiffs         proffered
    
    Echemendia's in-house report that named approximately 180 lost
    
    customers     from     whom     C&F    would    have    earned    profits      of   $19
    
    million. Earlier, we concluded that plaintiffs' assertions as to
    
    the   180    alleged     lost    customers      were     sufficient     to     survive
    
    summary judgment. See Section IV(B)(3), supra.
    
          But plaintiffs also offered Craig Elson's expert report on
    
    the value of the share of the insurance market that C&F would
    
    have secured but for defendants' alleged misconduct. The trial
    
    judge found Elson's expert report to be a net opinion, which
    
    failed to show the special damages required by law, leaving only
    
    the 180 lost customers named in Echemendia's report. As to those
    
    customers, the judge found "a complete absence of proof that any
    
    of the brokers in question actually made the decision . . . not
    
    to    sell    [C&F]     insurance"       products      "based     on   the     alleged
    
    
    
    
                                              130                                 A-0963-12T1
    statements," i.e., a failure of proof on proximate cause, which
    
    compelled dismissal of what remained of plaintiffs' entire case.
    
           We reject the judge's determination that plaintiffs could
    
    not    continue    to     pursue   its   claim    to   the   180   alleged    lost
    
    customers for reasons already expressed, but we agree with the
    
    argument that Elson's theory of recovery as to a lost market
    
    share cannot constitute damages permitted by way of plaintiffs'
    
    New York common law claims because New York law requires proof
    
    of the specific customers whose present or future relationship
    
    with plaintiffs was impinged, frustrated or precluded. It is for
    
    this reason alone that we affirm the judge's determination to
    
    bar the testimony Elson would have provided had the case gone to
    
    trial.
    
           Although not necessary for our disposition of the appeal
    
    concerning Elson's report, we nevertheless consider and address
    
    other concerns about that report and Elson's proposed expert
    
    testimony. The judge, as we have noted, barred Elson's expert
    
    testimony because he found it to be a net opinion. Plaintiffs
    
    additionally argue the trial judge erred in failing to conduct a
    
    hearing pursuant to N.J.R.E. 104. We agree the judge erred in
    
    finding Elson's proposed testimony constituted a net opinion but
    
    we    find   no   error    in   the   judge's    decision    not   to   conduct    a
    
    N.J.R.E. 104 hearing.
    
    
    
    
                                             131                              A-0963-12T1
                                   1. General Principles
    
        N.J.R.E. 702 provides that when "scientific, technical or
    
    other specialized knowledge will assist the trier of fact to
    
    understand    the       evidence   or    to    determine     a   fact   in   issue,    a
    
    witness qualified as an expert by knowledge, skill, experience,
    
    training or education may testify thereto in the form of an
    
    opinion or otherwise." Although the facts upon which a qualified
    
    expert's testimony is based need not be admissible, those facts
    
    must be "of a type reasonably relied upon by experts in the
    
    particular    field       in   forming    opinions      or   inferences      upon    the
    
    subject."     N.J.R.E. 703.        Consequently,         expert     opinions         must
    
    satisfy three requirements:
    
                (1) the intended testimony must concern a
                subject matter that is beyond the ken of the
                average juror;
    
                (2) the field testified to must be at a
                state of the art such that an expert's
                testimony could be sufficiently reliable;
                and
    
                (3)   the   witness  must   have   sufficient
                expertise to offer the intended testimony.
    
                [Landrigan v. Celotex Corp., 
    127 N.J. 404
    ,
                413 (1992).]
    
        A corollary of these principles — the net opinion rule —
    
    forbids     the        admission    of        an   expert's      conclusions         when
    
    unsupported       by     factual   evidence        or   other     data.      State     v.
    
    
    
    
                                              132                                 A-0963-12T1
    Townsend,     
    186 N.J. 473
    ,    494       (2006).     An    expert     witness     is
    
    required "to give the why and wherefore of [an] expert opinion,
    
    not just a mere conclusion." Jimenez v. GNOC, Corp., 286 N.J.
    
    Super.    533,     540    (App.       Div.),      certif.     denied,    
    145 N.J. 374
    
    (1996). The "key to admission" is the validity of the expert's
    
    "reasoning       and     methodology,"         and    in    that     regard,    a   court's
    
    function "is to distinguish scientifically sound reasoning from
    
    that     of   the       self-validating           expert,      who     uses    scientific
    
    terminology        to     present       unsubstantiated             personal    beliefs."
    
    Landrigan, supra, 127 N.J. at 414.
    
    
                                2. The Judge's Disposition
                            Of the In Limine Motion Regarding
                                 Elson's Expert Testimony
    
           Even   in       relatively      simple      cases,     determining       whether      a
    
    proffered expert opinion passes the "why and wherefore" test
    
    described above often proves difficult. On appeal, a dispute
    
    about    admissibility          –    even   considering        an    appellate      court's
    
    reticence in intervening absent an abuse of discretion, Hisenaj
    
    v. Kuehner, 
    194 N.J. 6
    , 16 (2008) – can prove perplexing. See,
    
    e.g., Townsend, supra, 221 N.J. at 53-57. And it doesn't get any
    
    better    when     a    trial       judge   has      failed   to     fully    explain     the
    
    grounds for exclusion; such is the case here.
    
           The trial judge found Elson lacked the requisite expertise
    
    because, although highly educated, he did not possess experience
    
    
    
                                                 133                                    A-0963-12T1
    in   the    insurance          industry.      The      judge        also    deemed       Elson's
    
    methodology to be unreliable by highlighting the lack of any
    
    objective data or evidence to demonstrate a causal link between
    
    an insurance company's rating and its market share growth. The
    
    trial judge, however, did little more than express this view in
    
    a conclusory fashion.
    
         On     the       return    date    of   an     in     limine     motion,          the   judge
    
    provided only the following to guide us in determining whether
    
    he soundly exercised his discretion. First, the judge stated
    
    that "Mr. Elson is an MBA with no experience in the insurance
    
    business     or       anything     relating       to     the     insurance        business      at
    
    all[,] as is clear from his report and perfectly clear from his
    
    testimony." The judge then referred to an obligation "in cases
    
    of this kind" for a plaintiff – whether applying New York or New
    
    Jersey     law    –     to   prove     "actual      loss    of      business."         The   judge
    
    followed     that       with    an     acknowledgement           that      "New    Jersey      law
    
    allows for an alternative approach when you can't prove . . .
    
    actual     lost       business."     But,    because,          as   the    judge       observed,
    
    "plaintiff        was    capable       of    proving       actual       loss      of    business
    
    involving approximately 180 producers of business, who it claims
    
    chose not to place insurance with [C&F] subsidiaries because of
    
    the so-called noise or negativity in the market," he apparently
    
    concluded that plaintiffs could not take an alternative approach
    
    
    
    
                                                  134                                        A-0963-12T1
    when    actual     lost       business    cannot     be     proven.     And       the    judge
    
    lastly, through citation to some brief excerpts from Elson's
    
    deposition      testimony,        found       Elson's     methodology        –    viewed     as
    
    being    based      on    a     "proposition        that    because     companies           are
    
    similarly rated by rating agencies and are similar in various
    
    respects, that, therefore, they would have grown at the same
    
    rate" – to constitute a theory that is "counterintuitive" and
    
    "simply . . . not supported by any standard."
    
           The     judge's     brief       oral    decision      provides        little       that
    
    demonstrates to us how – in this particularly complex aspect of
    
    the case – the expert's opinion should be barred for theoretical
    
    reasons. The judge's opinion does not demonstrate how Elson's
    
    opinion is "counterintuitive" or unsupported by known standards.
    
           The judge stated at the outset of his oral decision that he
    
    would "expand" on his reasoning by way of "a written opinion to
    
    follow,"     but    that      written     opinion        never     issued.       If   Elson's
    
    testimony was not barred because of the application of New York
    
    law,     and       if     admissibility          turned       on     the         net-opinion
    
    determination, we would simply remand for further amplification
    
    from the trial judge on this question. But, in light of the
    
    considerable time, expense and energy devoted to bringing the
    
    case    to   this       point,    we   instead      have     analyzed      the        parties'
    
    arguments      about      the    sufficiency        of     Elson's    credentials           and
    
    
    
    
                                                  135                                     A-0963-12T1
    methodology. Based upon our review of the record, we conclude
    
    his     expert    testimony       did     not    constitute      one   or    more    net
    
    opinions, although, as we have already mentioned, the damages
    
    claimed by way of the Elson report are not recoverable.
    
    
                                        3. Our Ruling
    
           Elson     provided     two       detailed    expert       reports    that    were
    
    explored at a lengthy deposition. In essence, he compared C&F's
    
    sales    and     growth   rates     to    comparable     competitors.       Except    in
    
    certain       respects    not     relevant       here,    the     admissibility       of
    
    evidence is governed by the law of the forum. See Restatement
    
    (Second), supra, § 138.
    
           Elson may not have previously provided an opinion of this
    
    nature in the insurance setting – a fact greatly relied upon by
    
    the trial judge48 – but that is not dispositive. See Quinlan v.
    
    Curtiss-Wright Corp., 
    425 N.J. Super. 335
    , 372 (App. Div. 2012)
    
    (observing that it "was not necessary for . . . a well-qualified
    
    economist quantifying plaintiff's alleged losses [to also] be an
    
    expert on employability"); see also Hammond v. Int'l Harvester
    
    Co.,    
    691 F.2d 646
    ,   652-53       (3d    Cir.    1982)    (holding    that   an
    
    engineer, whose only qualifications were sales experience in the
    
    
    48The trial judge held: "In order to give expert testimony . . .
    you have to have knowledge, experience, training, something in
    the area about which you're testifying. He has nothing with
    respect to insurance, nothing at all."
    
    
    
                                               136                                A-0963-12T1
    field of automatic and agricultural equipment and teaching high
    
    school automobile repair, could testify in a products liability
    
    action involving tractors); Knight v. Otis Elevator Co., 
    596 F.2d 84
    , 87-88 (3d Cir. 1979) (holding that an expert could
    
    testify      that    unguarded    elevator       buttons   constituted         a    design
    
    defect despite the expert's lack of a specific background in
    
    design and manufacture of elevators). Although the determination
    
    as     to    whether    our     evidence      rules     permit    admission           of    a
    
    particular expert's testimony lies within the sound exercise of
    
    the trial judge's discretion, see Hisenaj, supra, 194 N.J. at
    
    16,    we    agree     the    trial   judge      mistakenly      rested    his        order
    
    excluding Elson's testimony on Elson's lack of expertise in the
    
    insurance industry. Any gaps in his conclusions about the damage
    
    caused to C&F that were dependent on the jury's understanding of
    
    the insurance industry could be supplied by other witnesses or
    
    evidence, as N.J.R.E. 703 clearly permits. See, e.g., Indus.
    
    Dev. Assocs. v. Commercial Union Surplus Lines Ins. Co., 222
    
    N.J.    Super.      281,     296-97   (App.      Div.   1988).    Consequently,            we
    
    conclude the trial judge mistakenly exercised his discretion in
    
    excluding Elson's testimony solely on the basis of his lack of
    
    expertise in the insurance industry.
    
           The    judge     also    excluded      Elson's      testimony      on       another
    
    premise. The judge recognized that a plaintiff may prove damages
    
    
    
    
                                               137                                     A-0963-12T1
    in this context without showing an "actual loss of business"
    
    but, because plaintiffs were able to show the loss of business
    
    from    approximately        180    producers        of       business,       they    could    no
    
    longer take advantage of a looser standard for damages when the
    
    claim is a loss of prospective business. We agree, as we have
    
    already held, that a looser standard for damages is barred by
    
    the application of New York substantive law to this claim.
    
           The trial judge lastly based his determination on Elson's
    
    methodology. He said: "[t]here is nothing in his first report or
    
    his    reply   report       that    supports        the       proposition      that    because
    
    companies      are    similarly      related         by       rating    agencies       and    are
    
    similar in various respects, that, therefore, they would have
    
    grown at the same rate." Our review of the lengthy and detailed
    
    reports   reveals      that     Elson     compared            C&F's    actual     performance
    
    with the actual weighted average performance of peer companies
    
    that    were     sufficiently           similar          to     provide       a      meaningful
    
    comparison      for     the        benefit      of        the     factfinder.          Although
    
    significantly more complex than other cases routinely heard and
    
    considered     by     our   courts,      we    see       nothing       more    disqualifying
    
    about    Elson's      methodology        than       we     would       with    an     appraiser
    
    quantifying      an    injury      to   real        estate      through       comparison       to
    
    another similar parcel of property, or in quantifying an injury
    
    to a restaurant by comparing it to another similar restaurant.
    
    
    
    
                                                  138                                      A-0963-12T1
    See, e.g., RSB Lab. Servs., Inc. v. BSI, Corp., 
    368 N.J. Super. 540
    , 551-53 (App. Div. 2004).
    
          Elson identified those business lines most susceptible to
    
    the information disseminated by defendants and then ascertained
    
    a similar group of businesses – what he referred to as a cohort
    
    group – that compete with C&F in those areas. He then drew
    
    conclusions based on the performances of the cohort group in
    
    those areas and through consideration of numerous other factors,
    
    including     historical      performance,          the    ratings      provided       by
    
    entities    whose     opinions      are   of    a   type    relied      upon    in    the
    
    industry, as well as underwriting strategy, appetite for risk,
    
    and   product    pricing.      In    calculating          the   results    of      these
    
    comparisons,    Elson       determined      the     weighted    average     of     these
    
    cohorts in the specific markets identified and compared that to
    
    C&F's performance in those markets to calculate damages. We find
    
    nothing disqualifying about Elson's approach.
    
          For the reasons we have outlined, we draw the following
    
    conclusions. First, Elson's expert testimony is barred by the
    
    application     of    New    York    law.       But,   second,     if     New    Jersey
    
    substantive     law    governed      plaintiffs'          common   law    claims,        a
    
    different conclusion may have been warranted49 because it has not
    
    
    
    49As a matter of New Jersey law, a plaintiff's inability to fix
    "with precision" its lost-profits damages may not always
                                                        (continued)
    
    
                                              139                                   A-0963-12T1
    been shown that Elson lacked the necessary qualifications or
    
    that he provided only net opinions.50
    
    
    
    
    (continued)
    preclude a recovery of damages, as we have held in different
    settings. See V.A.L. Floors, Inc. v. Westminster Communities,
    Inc., 
    355 N.J. Super. 416
    , 424 (App. Div. 2002) (quoting Inter
    Med. Supplies v. EBI Med. Sys., 
    181 F.3d 446
    , 463 (3d Cir.
    1999)). That is, our courts have held at times that "mere
    uncertainty as to the amount [of damages] will not preclude the
    right of recovery." Tessmar v. Grosner, 
    23 N.J. 193
    , 203 (1957);
    see also Am. Sanitary Sales Co. v. State, Dep't of Treas., Div.
    of Purchase & Prop., 
    178 N.J. Super. 429
    , 435 (App. Div.),
    certif. denied, 
    87 N.J. 420
     (1981). These authorities do not
    expressly hold that this looser standard would apply to a
    tortious interference with prospective economic advantage, and
    we need not determine here whether it should.
    
    50Although not necessary for our disposition of this aspect of
    the appeal, we would further observe in the interest of
    completeness that we see no error in the judge's refusal to
    conduct a hearing regarding the admissibility of Elson's expert
    testimony. We agree that ordinarily the best practice would be
    for a trial judge to permit the examination of the scope of an
    expert's opinion – when its admissibility is challenged – at a
    pretrial N.J.R.E. 104(a) hearing. See Kemp ex rel. Wright v.
    State, 
    174 N.J. 412
    , 432 (2002). We see no error in the failure
    to conduct such a hearing here because Elson was examined at
    great length at his deposition about his methodology and that
    deposition testimony was available to and considered by the
    trial judge at the time of his ruling. We have no reason to
    believe – in light of the voluminous record on appeal – that a
    N.J.R.E. 104(a) hearing would have better amplified the disputes
    about his expert testimony; indeed, it seems to us that in this
    particular instance the efficient administration of justice
    would have been disserved if such a hearing were conducted.
    
    
    
                                   140                      A-0963-12T1
                                            V
    
                             THE CROSS-APPEALS
    
          We turn to the cross-appeals filed by Morgan Keegan and the
    
    Exis defendants. Morgan Keegan argues that the trial judge erred
    
    in allowing plaintiffs to seek damages allegedly incurred by
    
    non-party subsidiaries and that the trial judge erred in denying
    
    Morgan Keegan's motion for summary judgment on First Amendment
    
    grounds.51 We reject both these arguments.
    
    
                                  A. Standing
    
          Morgan Keegan argues the trial judge erred in declining to
    
    dismiss   plaintiffs'   claims     to       the   extent    plaintiffs      sought
    
    damages incurred by nonparty subsidiaries. Morgan Keegan asserts
    
    that three categories of damages were sustained not by Fairfax
    
    and C&F – the only named plaintiffs – but instead represent
    
    damages sustained by subsidiaries. Specifically, the argument
    
    focuses on plaintiffs' claim to: (1) $545 million in alleged
    
    lost profits related to insurance that would have been written
    
    by   C&F's   subsidiaries;   (2)   $805       million      in   alleged    losses
    
    relating to the sale of stock held in the ICICI Bank and sold by
    
    
    
    51The Exis defendants also filed a cross-appeal and have argued
    that the trial judge erred in denying their motion for summary
    judgment on the disparagement claim based on standing and
    statute of limitations grounds. The Exis defendants rely on the
    arguments thoroughly posed by Morgan Keegan on these issues.
    
    
    
                                        141                                   A-0963-12T1
    Fairfax's subsidiary Hamblin Watsa Investment Counsel, Ltd.; and
    
    (3) $42 million in allegedly increased D&O liability insurance
    
    costs paid by Fairfax but reimbursed by its subsidiaries.
    
           As we have already ruled, New York law applies and limits
    
    the    damages     available      on   the     disparagement      and       tortious
    
    interference       with   prospective      economic   advantage         claims     to
    
    profits emanating from the alleged lost 180 customers. New York
    
    law does not permit recovery for collateral damages, such as the
    
    losses related to the sale of the ICICI stock or the increased
    
    cost   of    D&O   insurance.     We   consider,   therefore,     the       argument
    
    insofar as Morgan Keegan alleges the 180 customers were lost not
    
    by C&F but by its subsidiaries.
    
           In   this      regard,   Morgan    Keegan    argues     that     a     parent
    
    corporation lacks standing to bring the claims of a subsidiary –
    
    regardless of whether New York or New Jersey law applies 52 – and
    
    that the trial judge erred in holding                 that material factual
    
    issues      existed     without    identifying     them,     as    Rule       4:46-3
    
    requires. Morgan Keegan further argues that even if, as the
    
    trial judge stated, plaintiffs might have been entitled to other
    
    damages properly asserted, the trial court still should have
    
    
    
    
    52There is no doubt, and no party has argued otherwise, that the
    law of the forum governs this question of standing. See
    Restatement (Second), supra, § 125.
    
    
    
                                             142                                A-0963-12T1
    granted partial summary judgment as to any damages sought on
    
    behalf of subsidiaries.
    
          Plaintiffs respond that courts broadly construe standing
    
    and allow a plaintiff to assert a third party's rights if the
    
    plaintiff states a "sufficient personal stake and adverseness
    
    [to   the    defendant]."   Jersey     Shore   Med.   Ctr.-Fitkin    Hosp.   v.
    
    Estate of Baum, 
    84 N.J. 137
    , 144 (1980); Assocs. Commercial
    
    Corp. v. Langston, 
    236 N.J. Super. 236
    , 242 (App. Div.), certif.
    
    denied, 
    118 N.J. 225
     (1989). Parent corporations have been held
    
    to meet that standard. Bondi, supra, 423 N.J. Super. at 436-37.
    
          The judge explained the motion was denied in this regard
    
    because,     in   pertinent    part,     plaintiffs    argued    that    C&F's
    
    subsidiaries' "losses are incorporated into C&F's consolidated
    
    financial     statements,   and   moreover,     C&F   writes   its   insurance
    
    policies through its subsidiaries[,] [which] are wholly-owned by
    
    plaintiffs." The judge concluded:
    
                 [E]ven   if   defendants'  allegations  are
                 assumed to be accurate, there are still
                 genuine issues of material fact with regard
                 to whether plaintiffs have standing to
                 pursue those actions on behalf of their
                 subsidiaries . . . . Defendants' motion for
                 summary judgment is not granted based on
                 this rationale.
    
    The denial of the summary judgment motion was warranted, based
    
    on the trial judge's sound reasoning and reliance on                    Bondi,
    
    which   we     discussed    earlier.     See   Section    IV(A)(3),     supra.
    
    
    
                                           143                            A-0963-12T1
    Briefly, the plaintiff Bondi was an administrator appointed by
    
    the Italian government to oversee the collapse of the Italian
    
    company    Parmalat.        The    defendant      Citigroup    (Citi)     asserted       a
    
    counterclaim as to which Bondi claimed it lacked standing to
    
    pursue     because    the     claims    belonged        to   Citi's   subsidiaries.
    
    Bondi, supra, 423 N.J. Super. at 436. We rejected that argument,
    
    finding Citi "was the operating agent for the transactions," the
    
    subsidiaries' business on the matter at issue "appeared on Citi
    
    consolidated financial statements, and all profits and losses
    
    flowed through Citi books. In short, any losses incurred by even
    
    one subsidiary was considered a loss of Citi funds." Ibid. We
    
    held "the evidence established that the funds loaned or extended
    
    to Parmalat all originated from Citi." Id. at 438. Citi had
    
    standing,     therefore,          because    in   New   Jersey,    "[a]    financial
    
    interest in the outcome of litigation is ordinarily sufficient
    
    to confer standing." Ibid. (quoting Assocs. Commercial Corp.,
    
    supra, 236 N.J. Super. at 242).
    
          We   agree     this    reasoning      requires     a    rejection    of    Morgan
    
    Keegan's argument. We conclude, as to the alleged lost insurance
    
    profits suffered by C&F's insurance subsidiaries, there is merit
    
    to the trial judge's view that the effect on C&F's consolidated
    
    financial statements gave C&F a sufficient "financial interest
    
    in   the   outcome     of     litigation"         to   preclude   a   dismissal        on
    
    
    
    
                                                144                                 A-0963-12T1
    standing grounds. We find insufficient merit in Morgan Keegan's
    
    arguments on standing to warrant further discussion in a written
    
    opinion. R. 2:11-3(e)(1)(E).
    
    
                              B. First Amendment Grounds
    
                              1. The Parties' Arguments
    
           Morgan Keegan also argues that the trial judge erroneously
    
    applied First Amendment principles because "no reasonable jury
    
    could find by clear and convincing evidence that Morgan Keegan
    
    published any false factual assertion with actual malice – that
    
    is, with knowledge that it was false." Morgan Keegan argues that
    
    the actual-malice standard applies because "large corporations
    
    active in the public arena" like Fairfax and C&F are considered
    
    public    figures,   and     the    law    affords    greater    protection    for
    
    speech concerning public figures. It claims that despite more
    
    than 150 depositions and the production of more than 15,000,000
    
    pages of documents, plaintiffs were unable to identify a single
    
    piece of evidence to support a contention that Morgan Keegan or
    
    its analyst, Gwynn, did not believe the statements they made
    
    were     true.   Morgan    Keegan     additionally      argues    that   whether
    
    advance    tipping   was     provided       about    their   reporting   is    not
    
    probative as to whether they believed the information in the
    
    report was false. Morgan Keegan contends there was no evidence
    
    of an incentive to report falsely, and asserts that the fact
    
    
    
                                              145                            A-0963-12T1
    Gwynn's reporting contained an error in calculating Fairfax's
    
    reserve deficiency, which was promptly corrected, does not raise
    
    a fact issue as to the malice requirement.
    
           In   addition,       Morgan     Keegan      contends         the   First    Amendment
    
    provides      absolute      protection       to    "opinions         that   do     not    imply
    
    false facts" or that are "pure opinions" for which the factual
    
    basis    is   disclosed.       It    argues        that    because        estimates       about
    
    insurance company reserves are not verifiable, First Amendment
    
    analysis mandates a presumption that statements about reserves
    
    are    protected    because      they    are       mere    opinions.        Morgan       Keegan
    
    contends further that the trial judge misconstrued the nature of
    
    "context" in the First Amendment analysis; it claims that rather
    
    than    referring      to     what     was   happening          at    the   time     of     the
    
    statement,      context       refers    only       to     how   a    reader       would    have
    
    interpreted the statement's content in view of the information
    
    disclosed. Based on the disclaimers in Morgan Keegan analyst
    
    reports, and with the underlying factual basis set forth, Morgan
    
    Keegan contends the context reinforced its position that Gwynn's
    
    statements      were    not    actionable          –    that    they      were    inherently
    
    subjective, completely protected "pure" opinions.
    
           Plaintiffs respond that the trial judge's denial of the
    
    motion was entirely correct because genuine issues of material
    
    fact    precluded      summary       judgment.          Plaintiffs        point    out     that
    
    
    
    
                                                 146                                     A-0963-12T1
    Morgan Keegan's collaboration and coordination in furtherance of
    
    the conspiracy went well beyond the statements in its reports,
    
    so the possibility of First Amendment protection for a limited
    
    number of statements provides no basis for dismissing Morgan
    
    Keegan    as   a   defendant.    Plaintiffs       further    set    out    several
    
    statements from the reports to support their contention that
    
    Morgan Keegan either knew or recklessly disregarded the truth.
    
    For example, plaintiffs contend Morgan Keegan admitted violating
    
    its own policies, and those of the New York Stock Exchange,
    
    because "it did not 'do a single thing' to determine whether its
    
    claims were true and/or [sic] reasonable" and its supervisory
    
    analyst provided no meaningful oversight. The First Amendment,
    
    they   contend,    does   not   protect    such    knowingly       or   recklessly
    
    false and misleading statements and, therefore, the trial judge
    
    properly denied Morgan Keegan's motion.
    
    
                         2. The Trial Judge's Decision
    
           Relying on Romaine v. Kallinger, 
    109 N.J. 282
     (1988), the
    
    trial judge held that where a statement is capable of more than
    
    one meaning, with only one being defamatory, "the question of
    
    whether its content is defamatory is one that must be resolved
    
    by the trier of fact." Although the judge acknowledged that the
    
    dispute    presented      a   difficult    question     as     to       whether     a
    
    statement's defamatory nature must be viewed solely within the
    
    
    
                                         147                                   A-0963-12T1
    four corners of the report, or whether it could be considered
    
    within the broader context of the alleged conspiracy, the judge
    
    was    satisfied       that       there       were    material            issues    of    fact       that
    
    required the motion's denial. For example, the judge determined
    
    that a fact issue remained whether Morgan Keegan disclosed to
    
    hedge fund investors the information contained in Gwynn's report
    
    prior     to    its        actual       release;          in     that      case,    even       if      the
    
    information          was    true,       the    release         "probably         [constituted]          an
    
    illegal insider trading act," in which case, according to the
    
    judge, "maybe that's not protected."
    
           The trial judge also relied on DeAngelis v. Hill, 
    180 N.J. 1
       (2004),      and       Ward    v.    Zelikovsky,             
    136 N.J. 516
        (1994),        as
    
    support for the view that courts do consider context and "do not
    
    automatically          decide       a     case       on        the    literal      meaning        of     a
    
    challenged       statement."            Consequently,               the   judge    observed          that
    
    "[c]ontext to me is also not just simply words on the paper but
    
    when    it     was    said,       how    it    was     said,         to    whom    it    was    said."
    
    Questions of fact, according to the trial judge, remained about
    
    whether      Gwynn     or    Lawless          correctly         represented        certain          facts
    
    about Fairfax's financial condition, and the verifiability of
    
    those facts. The judge recognized that "[d]efendants want to
    
    have    their        reports      characterized                as    pure    opinion,"         but      he
    
    
    
    
                                                     148                                           A-0963-12T1
    determined that "even pure opinion requires me to analyze the
    
    context of the matter and that's most troubling."
    
         Ultimately,     however,      the       judge      never     applied      these
    
    principles   to    the      parties'    assertions.       He     recognized       the
    
    questions posed were fact-sensitive but believed the process of
    
    determining whether the First Amendment afforded protection to
    
    Morgan Keegan was so "daunting" as to preclude the painstaking,
    
    statement-by-statement analysis, which the law requires, through
    
    what the judge referred to as "38 boxes" of materials.53
    
    
                                   3. Our Holding
    
         To be sure, our courts have held that the "summary judgment
    
    practice is particularly well-suited for the determination of
    
    libel [and defamation] actions" because those actions "tend to
    
    'inhibit   comment   on     matters    of    public     concern.'"    DeAngelis,
    
    supra, 180 N.J. at 12 (quoting Dairy Stores, supra, 104 N.J. at
    
    157). This lion of a case, however, mocks those beliefs. Indeed,
    
    although   the    summary    judgment       procedure    is     favored   in    such
    
    
    53In his March 16, 2012 oral decision, the trial judge observed
    that "everybody agrees that the statement-by-statement analysis
    the [c]ourt must go through is an extremely-daunting task and I
    think it's an unreasonable – let me not say that, I think it's
    the kind of task – I don't want to put it that way either. I did
    go through the statements, I did – I did go through the reports,
    but for me to conclude that there's no[t] one element of lack of
    truth in those – in that record is, I don't think that's
    inappropriate – well, it's not that it's inappropriate, I can't
    do that, I can't make that finding."
    
    
    
                                           149                                  A-0963-12T1
    instances,     that     is     chiefly   so   because    putting    a     speaker   or
    
    publisher through the discovery process could have a chilling
    
    effect on free speech. See Armstrong v. Simon & Schuster, Inc.,
    
    
    649 N.E.2d 825
    ,    828    (N.Y.    1995).    Considering      the    amount   of
    
    discovery already taken here, it seems a little late in the day
    
    – maybe ten years late – to express concern for the chilling
    
    effect of litigation and discovery.
    
           Moreover, the question is particularly elusive on appeal
    
    because the judge failed to engage in the process required by
    
    law. The statement-by-statement analysis that is required should
    
    not occur for the first time on appeal, and we decline to make
    
    an exception here.
    
           We remand on this point for the trial judge to consider
    
    further the application of First Amendment principles to the
    
    disparagement claims asserted against Morgan Keegan and the Exis
    
    defendants.54 Applied to a claim of disparagement, New York law
    
    would require a determination of whether any of the statements
    
    in    question    were    "susceptible        of   a   defamatory    connotation,"
    
    
    
    54These same First Amendment principles apply even if the claim
    does not sound in defamation but in some other theory of
    recovery. See, e.g., Hustler Magazine v. Falwell, 
    485 U.S. 46
    ,
    56, 
    108 S. Ct. 876
    , 882, 
    99 L. Ed. 2d 41
    , 52 (1988); Food Lion,
    Inc. v. Capital Cities/ABC, Inc., 
    194 F.3d 505
    , 522 (4th Cir.
    1999); Hornberger v. Am. Broad. Cos., Inc., 
    351 N.J. Super. 577
    ,
    628-30 (App. Div. 2002); LoBiondo v. Schwartz, 
    323 N.J. Super. 391
    , 415-17 (App. Div.), certif. denied, 
    162 N.J. 488
     (1999).
    
    
    
                                              150                                A-0963-12T1
    Davis    v.   Boeheim,   
    22 N.E.3d 999
    ,   1003-04        (N.Y.    2014),       as
    
    outlined in cases such as Thomas H. v. Paul B., 
    965 N.E.2d 939
    ,
    
    942 (N.Y. 2012) (for example, false statements "that tend[] to
    
    expose a person to public contempt, hatred, ridicule, aversion
    
    or disgrace"), and that the statements do not constitute "pure
    
    opinion," which would not be actionable because "[e]xpressions
    
    of   opinion,   as   opposed    to    assertions     of    fact,       are    deemed
    
    privileged . . . no matter how offensive," Mann v. Abel, 
    885 N.E.2d 884
    , 885-86 (N.Y. 2008). Stated another way, no matter
    
    "how[]   pernicious      an   opinion    may    seem,     we   depend        for   its
    
    correction not on the conscience of judges and juries but on the
    
    competition of other ideas." Steinhilber v. Alphonse, 
    501 N.E.2d 550
    , 552 (N.Y. 1986) (quoting Gertz v. Robert Welch, Inc., 
    418 U.S. 323
    , 339-40, 
    94 S. Ct. 2997
    , 3007, 
    41 L. Ed. 2d 789
    , 805
    
    (1974)). And, "[w]hile a pure opinion cannot be the subject" of
    
    an actionable claim, Davis, supra, 22 N.E.3d at 1004, an opinion
    
    that "implies that it is based upon facts which justify the
    
    opinion but are unknown to those reading or hearing it, . . . is
    
    a 'mixed opinion' and is actionable." Steinhilber, supra, 501
    
    N.E.2d at 552-53.
    
          "What   differentiates     an     actionable   mixed      opinion       from    a
    
    privileged, pure opinion is 'the implication that the speaker
    
    knows certain facts, unknown to [the] audience, which support
    
    
    
    
                                          151                                    A-0963-12T1
    [the speaker's] opinion and are detrimental to the person' being
    
    discussed."      Davis,      supra,       22     N.E.3d         at     1004       (quoting
    
    Steinhilber,     supra,      501    N.E.2d       at     553).        For    guidance       in
    
    determining      whether     a     reasonable         reader      would     consider        a
    
    statement as connoting facts or nonactionable opinions, New York
    
    law provides three factors: "(1) whether the specific language
    
    in issue has a precise meaning which is readily understood; (2)
    
    whether    the   statements      are    capable       of   being      proven      true    or
    
    false;    and    (3)     whether       either    the       full      context       of     the
    
    communication       in   which   the    statement       appears       or    the    broader
    
    social    context    and   surrounding         circumstances          are   such     as   to
    
    signal . . . readers or listeners that what is being read or
    
    heard is likely to be opinion, not fact." Brian v. Richardson,
    
    
    660 N.E.2d 1126
    , 1129 (N.Y. 1995). The third factor "lends both
    
    depth and difficulty to the analysis," ibid., and requires a
    
    consideration of "the content of the communication as a whole,
    
    its tone and apparent purpose." Davis, supra, 22 N.E.3d at 1005.
    
        We would also add that Morgan Keegan's claim to summary
    
    judgment is impacted by whether plaintiffs can show that any
    
    false statements of fact were made with "malice," which would
    
    require evidence of actual knowledge or reckless disregard of a
    
    statement's falsity. Gertz, supra, 418 U.S. at 334, 94 S. Ct. at
    
    2997, 41 L. Ed. 2d at 802. Whether a finding of actual malice
    
    
    
    
                                             152                                       A-0963-12T1
    requires clear and convincing evidence or only a preponderance
    
    of    the   evidence    depends     upon     whether   plaintiffs       are    public
    
    figures, see Weldy v. Piedmont Airlines, 
    985 F.2d 57
    , 63-65 (2d
    
    Cir.   1993)   (applying      New   York     law);   see   also    Masson     v.    New
    
    Yorker Magazine, 
    501 U.S. 496
    , 610, 
    111 S. Ct. 2419
    , 2429, 
    115 L. Ed. 2d 447
    , 468 (1991) (observing that "[w]hen . . . the
    
    plaintiff is a public figure, he cannot recover unless he proves
    
    by clear and convincing evidence that the defendant published
    
    the defamatory statement with actual malice"). Plaintiffs have
    
    not been clear about their position on this point; Morgan Keegan
    
    asserts that plaintiffs did not contest in the trial court that
    
    they are public figures.
    
           The particular question of whether a business entity may be
    
    characterized as a public figure has proved vexing. See Dairy
    
    Stores,     supra,     104   N.J.   at     139.   Courts    have    held      that     a
    
    corporation becomes a public figure when inviting reviews and by
    
    advertising extensively, Bose Corp. v. Consumers Union of U.S.,
    
    Inc., 
    508 F. Supp. 1249
    , 1273 (D. Mass. 1981), rev’d on other
    
    grounds, 
    692 F.2d 189
     (1st Cir. 1982), aff’d on other grounds,
    
    
    466 U.S. 485
    , 
    104 S. Ct. 1949
    , 
    80 L. Ed. 2d 502
     (1984), or when
    
    the    corporation     has   "considerable        access    to    the   media"       or
    
    "voluntar[il]y       ent[ers]     into   a     [public]    controversy,"       United
    
    States Healthcare, Inc. v. Blue Cross of Greater Phila., 898
    
    
    
    
                                             153                                  A-0963-12T1
    F.2d 914, 938 & n.29 (3d Cir. 1990). By way of example, in
    
    Reliance Ins. Co. v. Barron's, 
    442 F. Supp. 1341
    , 1348 (S.D.N.Y.
    
    1977), the court held that an insurance company – regulated by
    
    state insurance law and required to file reports with the SEC –
    
    whose "shares [we]re traded on the New York Stock Exchange,"
    
    possessed "more than a billion dollars in assets," and "offered
    
    to sell its stock to the public," had "voluntarily thrust[ed]
    
    itself   into     the   public   arena,      at    least   as    to   all    issues
    
    affecting that proposed stock sale," and was, therefore, to be
    
    treated as a public figure "with respect to issues involving its
    
    offering of securities to the public."55
    
         There remains a lack of clarity since our Supreme Court
    
    expressed uncertainty about this thirty years ago. Dairy Stores,
    
    supra, 104 N.J. at 139 (recognizing "that the constitutional
    
    concepts do not comfortably fit the activities or products of a
    
    corporation"). But we need not delve further into this area. As
    
    noted    above,    plaintiffs    may    not       have   disputed     the    point.
    
    Moreover, the questions whether plaintiffs are public figures
    
    are not presently reviewable. Although we apply the same summary
    
    judgment   standards     that    governed     the    trial      judge,   Townsend,
    
    
    55 Whether a corporation possesses fame and notoriety or seeks
    out attention raises questions as to whether it should be viewed
    as a general-purpose public figure or a limited-purpose public
    figure. See Steaks Unlimited v. Deaner, 
    623 F.2d 264
    , 273 (3d
    Cir. 1980).
    
    
    
                                           154                                  A-0963-12T1
    supra, 221 N.J. at 59, and are required to examine the same
    
    materials that were presented to the trial judge, Lombardi v.
    
    Masso, 
    207 N.J. 517
    , 542 (2011); Noren v. Heartland Payment
    
    Sys., __ N.J. Super. __, __ (App. Div. 2017) (slip op. at 3), we
    
    are not expected, in applying those principles, to canvass the
    
    record to determine whether plaintiffs' claims may be maintained
    
    against Morgan Keegan and the Exis defendants when the trial
    
    judge     has   not   first    undertaken      this   task.       We    certainly
    
    appreciate the size of the record and the burdensome nature of
    
    the task, but our procedures require that the effort first be
    
    exerted in the trial court.
    
    
                                          VI
    
                                      CONCLUSION
    
         For these reasons, we affirm: the May 11, 2012 order which
    
    dismissed the RICO claims (counts one and two56); the December
    
    23, 2011 order which dismissed in all respects as to defendants
    
    Kynikos,    Third     Point,   Chanos,     Perry   and     Loeb    on    personal
    
    jurisdiction grounds; the September 25, 2008 order which granted
    
    summary    judgment    in   all   respects   in    favor    of    Copper    River
    
    Partners, David Rocker, and Rocker Partners, L.P.; that part of
    
    
    
    56We refer in this paragraph to the counts as they appear in the
    third amended complaint.
    
    
    
    
                                         155                                 A-0963-12T1
    the    September      12,    2012     order    that      precluded       Elson's      expert
    
    testimony; and the August 14, 2012 order57 that denied Morgan
    
    Keegan's motion for summary judgment. We reverse: the August 21,
    
    2012 order, which determined that the disparagement claim (count
    
    three)    and   the     tortious       inference         with    prospective      economic
    
    advantage claim (count five) were governed by New York's three-
    
    year    statute    of       limitations;       the    September         12,    2011     order
    
    granting summary judgment in the SAC defendants' favor; and that
    
    part of the September 12, 2012 order that found the allegations
    
    concerning 180 lost customers to be inadequate.
    
           Affirmed    in       part,     reversed      in    part,    and    remanded       for
    
    further proceedings, in conformity with this opinion, on the
    
    claims    set   forth       in    counts    three,       five,    and    six,58    as    they
    
    pertain    to   Morgan       Keegan,       S.A.C.    Capital       Management,        S.A.C.
    
    Capital     Advisors,        S.A.C.     Capital       Associates,        Sigma     Capital
    
    Management,       Steven         A.   Cohen,      Exis     Capital,       Exis     Capital
    
    Management,     Exis        Differential       Partners,         and    Exis   Integrated
    
    Partners.
    
           We do not retain jurisdiction.
    
    
    
    
    57   This order was mistakenly dated October 12, 2012.
    
    58 Count six alleges a civil conspiracy by all defendants.
    Because there are other maintainable tort causes of action, this
    civil conspiracy claim may also be maintained.
    
    
    
                                                156                                    A-0963-12T1
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