Disparagement: It's all in the definition
Let’s examine the word disparagement. What exactly is considered disparagement?
Definitions of disparage: verb (used with object), disparaged, disparaging.
1. to speak of or treat slightingly; depreciate; belittle: Do not disparage good manners.
2. to bring reproach or discredit upon; lower the estimation of: Your behavior will disparage the whole family.
3. express a negative opinion of
4. To speak of in a slighting or disrespectful way.
5. To reduce in esteem or rank.
Synonym Discussion of DISPARAGE
decry, depreciate, disparage, belittle, denigrate mean to express a low opinion of. decry implies open condemnation with intent to discredit <decried their defeatist attitude>. depreciate implies a representing as being of less value than commonly believed <critics depreciate his plays for being unabashedly sentimental>. disparage implies depreciation by indirect means such as slighting or invidious comparison <disparaged polo as a game for the rich>. belittle usually suggests a contemptuous or envious attitude <belittled the achievements of others>.
These verbs mean to minimize the value or importance of someone or something. Disparage implies a critical or dismissive attitude often accompanied by disrespect: "Leaders who wouldn't be caught dead making religious or ethnic slurs don't hesitate to disparage the 'godless' among us" (Daniel C. Dennett).
Denigrate often adds a note of contempt: "elitist music critics who denigrated jazz by portraying it as inferior to the classical tradition" (Tyler Stovall).
Belittle means to reduce someone or something to a lowly status, often in an arrogant or hurtful manner: "those who would mock and belittle others simply on the basis of their physical appearance" (Tyler Dilts).
Depreciate implies the assignment of a low estimation of value or worth, though the judgment it expresses is generally less disdainful than in the previous terms: "[19th-century American] literature was still mainly subservient to English models and depreciated as secondhand and second rate" (Chronology of American Literature)
From: Legal Dictionary.thefreedictionary.com
In old English Law, an injury resulting from the comparison of a person or thing with an individual or thing of inferior quality; to discredit oneself by marriage below one's class. A statement made by one person that casts aspersions on another person's goods, property, or intangible things.
In torts, a considerable body of law has come about concerning interference with business or economic relations. The tort of injurious falsehood, or disparagement, is concerned with the publication of derogatory information about a person's title to his or her property, to his or her business in general, or anything else made for the purpose of discouraging people from dealing with the individual. Generally, if the aspersions are cast upon the quality of what the person has to sell, or the person's business itself, proof of damages is essential.
Disparagement of goods is a false or misleading statement by an entrepreneur about a competitor's goods. It is made with the intention of influencing people adversely so they will not buy the goods.
Disparagement of title is a false or malicious statement made about an individual's title to real or Personal Property such disparagement may result in a pecuniary loss due to impairment of vendibility that the defamatory statements might cause.
Non-Disparagement Clause- Paul Steinberg, attorney, State of NY
In general conversation "disparage" means to speak poorly about someone, but in a legal context "disparagement" involves a false statement. Non-Disparagement clauses are increasingly common in settlement agreements. Their efficacy and the wisdom of including them is open to question. That being said, a few general observations suggest that these clauses are less of a legal issue than they may first appear; they are often more a tool to enforce silence upon the less-wealthy signatory.
“Defamation” is a cause of action which is well-defined by case law in most states. “Disparagement” is a much broader concept which is often ill-defined or undefined in the contract itself. In the New World Coffee case, the court relied on definitions from Black’s Law Dictionary suggesting that in order to be “disparaging” the statement must be untrue (though the court avoided making a ruling on this, the majority of subsequent NY cases have held that truth is an absolute defense to a disparagement claim).
To the extent that a "non disparagement" clause is popularly perceived as silencing the speech of the weaker party, the mere existence of such a clause creates perceptual issues which may be more detrimental to the stronger party than any gain by inclusion of the clause: for members of the public, it looks as though the stronger party has something to hide. That perception may be wrong, but that is the perception all the same.
It is becoming apparent that the NJMP can say anything they want. There’s no one to say otherwise as they illegally, and deliberately disbanded the Sound Committee over a year ago.
Below is the result of having the fox guard the hen house. Out of 15 noise complaints that were lodged for the month of April, the NJMP chose only 4 to list, labeling it a "sampling". Lets take a closer look at the “samplings" and the NJMP’s responses.
#1 April 9. I know this complaint came from the north side of the track. The weather almanac for that day had the wind blowing from the SSW, which means the wind was blowing any noise directly to them and would experience the brunt of the loudspeaker noise regardless of it’s volume levels. Ok, giving the benefit of the doubt, how are we to know that the personnel had the speaker turned down 2 notches below normal? Are we to believe them? Sorry, but I want clarification by an outside, independent party.
#2 April 16. I also love the way they brush off the April 16th complaint as it being only ‘motorcycles’. I guess the NJMP doesn’t consider them worthy of making noise. On the contrary, they make horrendous, high pitched screaming noise too.
#3 The reason this person did not know that there was a ‘major noise event’ happening is because the NJMP neglected to list it on the Community Corner page on their website that TrackRacket worked together with them to give the community a head’s up on what’s happening at the track that would be causing excessive noise. I don’t see that documented in their response...
#4 April 29. I sent in this complaint. Their response is a convenient attempt to blame someone else, mainly the Field of Dreams. There are no other ‘local businesses’ that have revving engines going through their gears. The reason they listed this complaint is because they could deflect it to another source, hence they were not responsible for the noise. They did not need to list this complaint, as it wasn’t directed specifically to them but they just can’t help to make themselves to take advantage of a situation look good. Angels, they are...
Now, I’d like to share a complaint that the NJMP would not dare to list. They don’t have the balls, nor would they ever consider being magnanimous. Nor did they even offer an apology. This came in from Walter Johnson and is everyone’s nightmare when it comes to outdoor family gatherings:
April 29- I'd like to lodge a noise complaint for the entire day. My grandfather is the late Harold N. Peek. He passed away in December just before Christmas. Today we had a memorial service and family reunion on his old property, The "Harold N. Peek Preserve" on South 2nd street in Millville. We had family and friends from all over the country and world there today. The noise from the racetrack quickly became the top discussion topic as it interfered with our family gathering. At times people actually stopped taking because the noise was so annoying and they couldn't believe it the city allowed this type of facility so close to nature preserves and neighborhoods. When I told them how representatives of the track and local politicians responded to our noise complaints they couldn't believe it. Some actually got pissed off because they thought it was going to be a nice relaxing day on the old property, but were greeted with loud racing instead. I hope all the people who were involved in this project are proud of what they've done...the noise from NJMP has now been heard world wide.
So, there you have it. NJMP operating at their best.
If it looks like a duck...
On April 10, 2017 I received an email from the Millville Air Museum requesting that TrackRacket give approval for the NJMP to have an extra 'early start' (track activity to start at 8:00am instead of the normal 9:00am) for the 2017 racing season to compensate them for the time they have to shut down operations due to the (fabulous) Blue Angels performing. The contract between the Air Museum and the track specified that the museum was to do the asking. We did give permission two years ago for this to happen as we were all working together through our Sound Committee in accordance to our settlement.
This year is a bit different. Under the accusation of disparagement on my part, the NJMP abruptly and illegally stopped our Sound Committee meetings (see Update for 2-2-2016) and has refused to have any dealings with TrackRacket. I said TrackRacket would give its approval if the NJMP resumes the Sound Committee. I felt bad that the museum was put in this rather awkward and in my opinion unfair position, but I was not going to reward NJMP's bad behavior by allowing an additional early start. Keep in mind, that this was not a make-or-break condition for the Air Show takes place, it was just a courtesy on our part. I told the museum that if the NJMP wanted an early start for the Air Show weekend and were not willing to resume the Sound Committee meetings, they would have to forego one of the allotted three they are entitled to.
What is interesting here is back in January, 2017 I received a letter from the track specifying the dates of the 3 early starts along with the one endurance race as they are required to do. Oddly, only 2 early start events were listed.
Then, on April 12, 2017, two days after I declined to give approval, I received an updated version of the notification that listed the Air Show weekend as the 3rd early start event!
It sure does seem that the NJMP was hedging its bet to see if they could wangle an extra early start for the 2017 racing season. If it looks like a duck...
Loving being a fox
Here is another example of why the unlawful ending of our Sound Committee meetings by the NJMP with the bogus claim of disparagement on my part is important to the track's operation.
In their newly created “Community Feedback” page, it lists claims from “credible sources” on the effects of mufflers on race cars. The statements found on this page are excerpts from letters by their constituents presented to us in a 2014 Sound Committee meeting after we kept advocating the use of mufflers on non-sanctioned racing activity at the track (See Update for October 2014).
What they did not include was TrackRacket’s extensive research and documents we presented to them in rebuttal. It debunked every one of their claims, except for the claim that mufflers can explode and cause wrecks on the track. We couldn’t find anything to support or debunk that particular claim. I believe that if this was an occurrence that is inherently dangerous as they purport, there would certainly be evidence.
Tell me again why it is a good idea to have only the fox guard the henhouse? Where is the credibility and accountability?
Why it is important to lodge a complaint
After exposing their deceptive practice on their newest attempt in continuing the charade of being a "good neighbor" (see Update 1.21.2017), their website's "Community Feedback" listed 5 of the 9 complaints that came in for the month of March! Last year, they listed only 6 out of 91 complaints that were filed for the entire year!
However, I am sorry to report that they are still practicing deception in their attempts to downplay the effect of intrusive noise on the community.
Each entry was met with the same reply- "NJMP personnel and certified sound technicians found all automobiles to be at acceptable levels." That certainly raises a few questions. What constitutes 'acceptable levels'? Who set these 'acceptable levels'? And 'acceptable levels' to whom? Obviously, not the community.
It is important to shed some light on their claim. First, there are no 'levels' to base their assertion of being 'acceptable'. They operate under no noise restrictions, with the exception of SCCA events where the organization sets their own noise restrictions to 103 decibels trackside. Their backroom-deal (with the previous Millville commission) noise ordinance (80 decibels, 20 minutes sustained at the property line of the aggrieved person) was disapproved by the DEP thus rendering it null.
So who are they trying to kid?
Why it is important to NOT have the Fox guarding the Hen House
On NJMP's home page, they have a new button! They created, in their continuing efforts to be a Good Neighbor, the "Community Feedback" page where they list, among other things, 'Sound Complaints- 2016".
It became blatantly obvious why they wanted to break off the Sound Committee meetings. Here is TrackRacket'sresponse to one of the listings as published in the Daily Journal, 1-19-2017.
Well folks, it seems that the NJMP does not want to play anymore. Not only do they not want to honor their end of our lawsuit settlement, they are fast becoming bullies on the playground.
They have not reached out to TrackRacket nor contacted me in anyway since their accusation of disparagement (see below posting). They have cut off all ties with TR and have discontinued participating on our monthly Sound Committee meetings that legally cannot be disbanded unless it is mutually agreed upon, thus they are in breach of our contract.
Why are they doing this? It is because they know that we no longer have legal representation, plain and simple. We do not have the legal clout to formally slap their hands when they get caught in the cookie jar.
Why does this matter? In our settlement reached over 5 years ago, certain new operational restrictions were placed on the track. Restrictions that they have been adhering to (more or less) since then. We addressed any violations of these restrictions during our monthly meetings. Since they are refusing to participate in these meetings, does that mean that next they will stop adhering to the settlement? Now that there are no more Sound Committee meetings, does that mean that they can continue their bad behavior because there is no one there to keep an eye on them?
So without TR there to guard the henhouse, who will? They themselves? Good luck with that.
Since the NJMP does not want to play anymore, TR will propose to the City of Millville that they adopt an ordinance that will codify all the restrictions that went into place in accordance with our settlement. By doing so, there will be a real way that the community can have violations remedied. Right now, the only way that TR can get a violation rectified is to take them back to court and that, my friends, is a costly and time consuming endeavor.
Here are the items that will be included in this ordinance. They are taken verbatim from our lawsuit's settlement stipulation.
1. Start Times.
It has been agreed that the engine “start times” will be no earlier than 8:30 a.m., except for maintenance and other non-racing activities for vehicles that have standard, street legal mufflers, and maintenance vehicles. The hours of operation on the road courses will not commence until 9:00 a.m. with the exception of three (3) events per year, for which events prior written notification shall be provided to TrackRacket, City of Millville, and posted to the NJMP website on the Community Corner page. Commencement times for these three (3) events per year will apply for the duration of each event and will comply with the hours of operation contained within the prior Citizens United (“CU”) settlement agreement. This does not apply to the Karting Track.
2. End Times:
Except for maintenance and other non racing activities, and only insofar as these vehicles have standard, street legal mufflers, or are maintenance vehicles, the hours of operation on the road courses will be no later than 6:30 p.m. This does not apply to the Karting Track.
3. Exceptions to End Times:
a. NJMP may extend the hours of operation on its road courses on forty-five (45) days of its available dates to end time hours which are in compliance with the prior CU settlement agreement (which provides for events to end by sunset as defined by the National Weather Service for that given day). Additionally and in compliance with the prior CU settlement agreement, there will be no end time limitation for scheduled security training sessions and for maintenance or other non-racing activities, provided that these vehicles have standard, street legal mufflers or are maintenance vehicles. (I want to add in: NJMP must notify the City for each day the End Time is extended. This way there is an official tally taken.)
b. Endurance Races: NJMP may only have one (1) race which runs up to twenty-four (24) consecutive hours (an “Endurance Race”) per year, or if NJMP does not have one Endurance Race which lasts up to twenty-four (24) consecutive hours, then it is permitted two (2) Endurance-type races per year which involve racing activities after sunset as defined by the National Weather Service for that given day (up to Midnight). For purposes of this settlement, Endurance-type races are those races which conclude after sunset.
4. Public Address System:
Public Announcement Sound System: (The NJMP has made alterations to its PA system throughout the course of the 5 years since the lawsuit was settled, but they have not fully fixed the PA problem as the number of complaints attests.)
a. NJMPrecognizes that the current Public Announcement (“PA”) sound system is not effective in that it allows an amount of undesired noise to escape into the community, while failing to disperse noise efficiently through the paddock area. In light of this, NJMP has/will commission “consultants, contractors or suppliers” to evaluate the current system and make certain recommendation/ proposed remedies to improve the current system, and/or to install new parts, make upgrades and other changes to the current system, or install a new system. The consultant, contractor or supplier retained, at NJMP’s sole expense, will be commissioned to perform the sound system upgrades. Any and all upgrades shall be at the sole expense of NJMP.
So, you would think that a business who touts so bravely and proudly their "Good Neighbor Policy" would have no problem with the approval of this ordinance? That they will stand behind the convictions of their words?
Time will tell...
In October 2015, in response to statements I made in a published article, the New Jersey Motorsports Park sent a letter accusing me of breaching TrackRacket's settlement stipulation with NJMP by disparaging them. The park's lawyer said, "Therefore, demand is made that within five days of the date of this letter Ms. Post contact The Press of Atlantic City and direct that a retraction of her statements be published immediately." They concluded with a statement that they "will no longer take part in the Sound Committee meetings until this significant breach is properly addressed."
I am submitting this response in reply to the NJMP and then as published in the Press of Atlantic City:
"In the five years since our lawsuit was settled in bankruptcy court, we have been at the table with the NJMP in the monthly Sound Committee meetings formed to work out the noise portion of our lawsuit because we could not come to an agreement during settlement. They have moved forward on other issues that are important to TrackRacket, mainly the public address system that has been worked on but not yet solved. But sadly, after five long and excruciating years, we are no closer to a noise "remedy" than we were when we started. It is not for lack of trying on TrackRacket's part.
One of the first things we accomplished in the monthly Sound Committee meetings was to establish a "noise" hotline to which people could call or email noise complaints. The main objective was to pinpoint when, where, who or what was making the loudest noise that resulted in community complaints so the NJMP could act on them in a timely manner. Millville Commissioner Lynne Porreca-Compari gave a very proactive call for residents to lodge complaints both to the hotline and the city. About a week later, a reporter from The Press contacted me and I brought him up to date on what has transpired in the Sound Committee meetings that precipitated the action from the city. Then, on Oct. 14, I received the aforementioned letter of accusation from the NJMP's lawyer.
The statements I made were simply the truth; I was not about to retract the truth. I merely reported the lack of cooperation by the NJMP to reduce the noise levels coming from their facility as they are required to do as per our stipulation. I replied directly to Brad Scott, general manager, of NJMP:
"I have carefully considered the disparagement allegations from your lawyer. They are totally meritless. What I may have said or done in no way constitutes disparagement and I resent the fact that you have charged that I have engaged in prohibited conduct. I see it as an excuse to end your involvement with the Sound Committee.
"On the other hand, if we are going to engage in allegations of breach of the settlement, NJMP has committed the following clear violations:
If NJMP is sincere about being a "good neighbor," it will come back to the table, resume the Sound Committee meetings and address the violations listed above, unless it wants to add that to the list of breaches it has committed."
So, there are many questions that need to be posed: Is telling the truth considered disparagement? Is relating the non-compliance of our stipulation considered a disparaging act?
Why is it that we are now at the beginning of 2016 and still do not have a noise remedy as required in our settlement's stipulation? With all this being said, I hope that the NJMP will rethink its position and resume the Sound Committee meetings with TrackRacket.
SPOILER ALERT- Still no response from the NJMP
Update: May, 2015
Muffler (Non) Debate.
There has been no reply to our submitted rebuttal of the NJMP's letters. We have asked, but they will not respond.
Update: October, 2014
The NJMP submitted to the Sound Committee 5 testimonial letters that support their case that mufflers are detrimental to a race car. TrackRacket has been advocating the use of racing mufflers for the Members, Driver's Club and other clubs that rent or race on the track. Here are the letters from the NJMP in support.
After some considerable research on the topics posed by these testimonials, here is TrackRacket's rebuttal submitted to Brad Scott at the September Sound Committee meeting. It is lengthly and extensive, so grab a glass or wine or your favorite beer, sit back, and enjoy.
It no surprised that the NJMP has refused to accept our Proposal for Remedy to lower the noise levels to something that we can all live with; something that they can operate with and give us some relief to enjoy our properties. In fact, they did not even submit a Remedy of their own so we can formulate something we can mutually agree on.
So where does that leave us? Arbitration. As stated in our Settlement Stipulation, if both sides cannot agree upon a Remedy, then (non-binding) arbitration is ordered. We pleaded our case in front of the honorable Judge L. Anthony Gibbon, J.S.C. (Ret.) in early January, 2013.
After hearing both sides of the arguments, Judge Gibson gave his opinion on January 24, 2013 in the Award Letter.
To make better sense of the outcome, thisexplains it.
Update January, 2012
In accordance to our settlement stipulation and based on the Joint Monitoring Sessions performed in 2011, TrackRacket submitted the following Proposal for Resolution/Remedy.
We are still waiting for the NJMP to present their Remedy.
Update September, 2011
Sound Committee Monitoring Results
TrackRacket and the NJMP, as a result of our settlement, formed the Sound Committee made up of delegates from both sides. This committee meets regularly on a monthly basis to continue to work out the unsolved provisions of the settlement and to monitor ongoing noise complaints. To satisfy the most egregious portion of our suit, we immediately started the "Joint Monitoring" of noise by recording noise levels at the track (50ft trackside) and simultaneously at the closest residential neighborhood. This will determine at what point does noise levels that occur on the track translate into excessive noise in the community.
We analyzed the results from both sets of data and compiled it into one document and submitted it to the NJMP:
Results of Noise Monitoring Comparisons 2011