Litigation

Physician Adequately Alleges Violation of CUTPA Against His Former Counsel

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Case Background

In a recent decision, the Superior Court for the Judicial District of Stamford/Norwalk held that a plaintiff physician adequately alleged a violation of the Connecticut Unfair Trade Practices Act (“CUTPA”) against his former counsel.  More specifically, the Court held that, as alleged, the defendant law firm’s actions were entrepreneurial in nature, and, thus, were not subject to immunity that ordinarily attaches to conduct involving legal representation. In reaching its decision, the Court relied on the following facts, as alleged in the plaintiff’s complaint:

In this action, the plaintiff has brought suit against the defendants Yale-New Haven Health Services, Greenwich Hospital, MCIC Vermont, Inc. and the law firm of Heidell, Pittoni, Murphy & Bach, LLP (the defendant).[1]The operative pleading, which is the plaintiffs amended complaint dated August 20, 2010, alleges the following relevant facts. Until January 3, 2008, the plaintiff was employed by Yale-New Haven Health Services as the director of the emergency services department at Greenwich Hospital.

On August 4, 2006, the plaintiff met and treated a patient during the course of his employment. Subsequent to this treatment, the patient initiated a medical malpractice lawsuit against Greenwich Hospital and five physicians including the plaintiff. As a result of this lawsuit, the plaintiff was contacted by Yale-New Haven Health Services and told that he could be provided a defense in the Sousa lawsuit pursuant to an undisclosed insurance policy provided by MCIC Vermont, Inc.

The Plaintiff’s Representation 

The plaintiff was further told that the defendant law firm would represent all five of the physicians who were defendants in the underlying lawsuit, as well as Greenwich Hospital. According to the complaint, the plaintiff was not told that he had a right to obtain independent counsel or that he had the ability to object to any settlements. There was no written retainer agreement between the plaintiff and the defendant law firm. The plaintiff further alleges that the defendant law firm never informed him of any potential conflicts of interest arising from this joint representation.

In fact, upon meeting with one of the defendant’s partners, the plaintiff was told that it was “not necessary” for him to obtain independent counsel because in “most cases,” settlements were covered entirely by the subject insurance policy and that individual physicians were “very rarely” reported to the National Practitioners Data Bank pursuant to 45 C.F.R. § 60.5.

Failure to Protect a Client

According to the plaintiff, “throughout the representation [the defendant] failed to exercise the degree of skill and learning commonly applied to protect a client in Plaintiffs’ position as independent from the competing interests of common clients, including [Greenwich Hospital].” Specifically, the plaintiff alleges that the defendant failed to inform him in a timely manner of the occurrence of the deposition of the plaintiff in the underlying case, which deprived him of an opportunity to be present and provide input.

The plaintiff further alleges that he was not told for nine months that the defendant had obtained the services of an independent medical expert. In November 2009, the plaintiff was informed that the case was settled on his behalf and that he would not be reported to the National Practitioners Data Bank. When the plaintiff asked whether he could object to the settlement, the plaintiff was told that he could not because of the contractual arrangement between MCIC Vermont, Inc. and Greenwich Hospital or Yale-New Haven Health Services. The plaintiff was further informed that he would not be named as a payor of the settlement proceeds.

Several weeks later, however, the plaintiff was in fact told that he would be named in the settlement and reported to the National Practitioners Data Bank. The reason for this decision was because of an independent expert opinion that the plaintiff was not told about until after the settlement. None of the other physicians represented by the defendant were reported to the National Practitioners Data Bank. On December 22, 2009, the plaintiff eventually obtained independent counsel and the defendant refused to turn over relevant documents to the plaintiffs’ new attorneys.

The Plaintiff’s Claims

As a result of all of this conduct, the plaintiff alleges the following claims:

(1) legal malpractice against the defendant; (2) breach of fiduciary duty against the defendant; (3) breach of fiduciary duty against MCIC Vermont, Inc.; (4) breach of contract against Greenwich Hospital; (5) breach of contract against Yale-New Haven Health Services; (6) breach of the covenant of good faith and fair dealing against Greenwich Hospital; (7) breach of the covenant of good faith and fair dealing against Yale-New Haven Health Services; (8) breach of the covenant of good faith and fair dealing against MCI C Vermont, Inc.;

(9) violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-1a et seq. (CUTPA), against the defendant; (10) negligence against MCIC Vermont, Inc.; (11) violations of CUTPA against MCIC Vermont, Inc. and (12) violations of the Connecticut Unfair Insurance Practices Act, General Statutes § 3Sa-S15 et seq. (CUTPA) against MCIC Vermont, Inc.

Motion to Strike

On August 20, 2010, the defendant filed a motion to strike and a memorandum of law in support of its motion (Dkt. Entries 107.00 and 10S.00).  As originally filed, the defendant’s motion sought to strike counts one and six, as well as the prayer for relief associated with count one, which were located in the plaintiffs revised complaint dated August 5, 2010. The plaintiff filed a memorandum of law in opposition to this motion on September 2, 2010 (Dkt. Entry 112.00).

Following the filing of the defendant’s motion to strike, on August 23, 2010, the plaintiff filed a request for leave to file an amended complaint, as well as a proposed amended complaint. This complaint is now the operative complaint in the case.2  In this amended complaint, the plaintiff added a new cause of action against the defendant for breach of fiduciary duty and changed the numbering of the counts that are directed to the plaintiff.

As a result, on October 4, 2010, the defendant filed a supplemental motion to strike and supporting memorandum of law addressing count two (Dkt. Entry121.00 and 123.00). The plaintiff further filed a memorandum of law in opposition to this supplemental motion to strike on November 5, 2010 (Dkt. EntryI28.00). When read together, the defendant’s original and supplemental motions to strike requested that the court strike all of the counts levied against the defendant in the plaintiffs amended complaint dated August 20, 2010. These are counts one, two and nine.

The defendant is also moving to strike the portions of the prayer for relief associated with count one that seek punitive damages and attorney’s fees. The court heard arguments in this matter on a short calendar on December 6, 2010.

The Court’s Reasoning From a Legal Perspective

“The purpose of a motion to strike is to contest … the legal sufficiency of the allegations of any complaint … to state a claim upon which relief can be granted.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In a motion to strike, “the moving party admits all facts well pleaded.” RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381,383 n.2, 650 A.2d 153 (1994).

Therefore, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.” (Internal quotation marks omitted.) Batte-Homgren v. Commissioner of Public Health, 281 Conn. 277,294,914 A.2d 996 (2007). Nevertheless, “[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.” (internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. When deciding a motion to strike, the court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.” (internal quotation marks omitted.) Sullivan v. Lake Com pounce Theme Park, Inc., 277 Conn. 113, 117,889 A.2d 810 (2006).

Motion to Strike Count 9

The defendant first moves to strike count nine alleging CUTP A on the ground that the plaintiff fails to allege facts involving the entrepreneurial aspects of the defendant’s law practice.3 In its memorandum of law, the defendant argues that all of the allegations in this count arise from the defendant’s legal representation of the plaintiff and that such allegations cannot form a legally cognizable CUTPA claim against a law firm. As a result of this immunity from CUTPA liability, the defendant argues that count nine is legally insufficient.

In response, the plaintiff argues that he alleges facts involving the defendant’s “engaging and disengaging of clients, its billing practices and fees.” Specifically, the plaintiff contends that he alleges actions taken by the defendant in order to secure the plaintiff as a client and prevent him from obtaining independent counsel. Furthermore, the plaintiff argues that he alleges facts involving the defendant’s improper billing practices. Consequently, the plaintiff contends that count nine sets forth a legally viable CUTPA cause of action.

CUTPA: Conduct of Attorneys

“[I]n general, CUTPA applies to the conduct of attorneys…. The statute’s regulation of the conduct of any trade or commerce does not totally exclude all conduct of the profession of law. . .. Nevertheless, [the Connecticut Supreme Court has] declined to hold that every provision of CUTPA permits regulation of every aspect of the practice of law…. [The Supreme Court has] stated, instead, that, only the entrepreneurial aspects of the practice of law are covered by CUTPA. … [P]rofessional negligence that is, malpractice does not fall under CUTPA.” (Citations omitted; internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 781, 802 A.2d 44 (2002).

“Our CUTPA cases illustrate that the most significant question in considering a CUTP A claim against an attorney is whether the allegedly improper conduct is part of the attorney’s professional representation of a client or is part of the entrepreneurial aspect of practicing law.” Id. “The ‘entrepreneurial’ exception is just that, a specific exception from CUTP A immunity for a well-defined set of activities-advertising and bill collection, for example.” Id., 782; see also Haynes v. Yale-New Haven Hospital, 243 Conn. 17,34-38,699 A.2d 964 (1997) (stating that CUTPA can apply to the professions of law and medicine, but only for entrepreneurial aspects such as solicitation of clients and billing).

Count 1, Paragraph 14: Representation

In paragraph fourteen of count one, which is incorporated by reference into count nine, the plaintiff alleges that “at the outset of the representation, [he] inquired as to whether he needed separate counsel and was told it was ‘not necessary,’ especially as in ‘most cases,’ settlements were covered entirely by [MCIC Vermont, Inc.] on behalf of [Greenwich Hospital] and [Yale-New Haven Health Services] ….”

As further alleged in paragraphs thirty-two and thirty-three of count nine, “[t]he representation of all individual physicians and [Greenwich Hospital] in the Sousa lawsuit, while purposefully overlooking potential and actual conflicts of interest, permitted [the defendant] to bill numerous hours above and beyond what it would have been able to bill if it only represented one physician or one hospital” and “[i]t is and/or was [the defendant’s] pattern and practice to increase billable hours, regardless of its ethical obligations to its individual clients.”

Attorney-Client Conflict of Interest

If read in a light most favorable to the pleader and accepted as true, these allegations suggest that the defendant failed to divulge a potential conflict of interest in order to convince the plaintiff to have it represent him in the Sousa lawsuit and that this was done so that the plaintiff could over-bill its clients.

As stated by one Superior Court judge, “the solicitation of a client is more apt to involve the entrepreneurial, as opposed to the representational, aspects of a legal practice because such an activity more often involves conduct occurring before the creation of the attorney-client relationship.” (Emphasis in original.) Tracey v. Still, Superior Court, judicial district ofAnsonia-, Milford at Derby, Docket No. CV 054001883 (March 23, 2006, Stevens, J) (41 Conn. L. Rptr. 101, ‘ 104); see also Anderson v. Schoenhorn, 89 Conn. App. 666, 674,874 A.2d 798 (2005) (stating that “the conduct of a law firm in obtaining business and negotiating fee contracts does fall within the ambit of entrepreneurial activities”).

Count 9: Billing

The allegations of count nine also directly implicate the defendant’s billing practices in that the plaintiff alleges that the defendant over-billed as a result of its representation of multiple clients in the Sousa lawsuit. Cf. Proskauer Rose, LLP v. Lindholm, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 07 5005353 (May 19, 2008, Tobin, J) (45 Conn. L. Rptr. 503, 505) (striking CUTPA counterclaim because of the defendant’s failure “to allege any wrongdoing on the plaintiffs part other than over-billing.

There are no claims that the plaintiffs bill, for example, included time incurred in working for other clients …. Without such allegations claims of over-billing necessarily involve only the professional judgment of the plaintiff as to how to staff the defendant’s case ….”). Consequently, although it is a close call, the court finds that the plaintiff alleges enough facts regarding the solicitation of clients and billing practices to arguably place this matter within the entrepreneurial exception to the CUTPA immunity afforded to attorneys.

Additionally, the defendant argues that count nine is legally insufficient because the plaintiff fails to allege causation. In its memorandum of law, the defendant argues that there are no facts alleged indicating that the defendant’s actions were the proximate cause of the plaintiffs injuries. In response, the plaintiff argues that he alleges sufficient facts in the amended complaint to establish the causation element because he alleges that he suffered injury “as a result” of the defendant’s conduct.

CUTPA: Loss of Money or Property

CUTPA provides in relevant part that: “Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages ….” General Statutes § 42-110g (a).

“Our courts have interpreted § 42-110g (a) to allow recovery only when the party seeking to recover damages meets the following two requirements: First, he must establish that the conduct at issue constitutes an unfair or deceptive trade practice .. . . Second, he must present evidence providing the court with a basis for a reasonable estimate of the damages suffered …. Thus, in order to prevail in a CUTPA action, a plaintiff must establish both that the defendant has engaged in a prohibited act and that, ‘as a result of this act, the plaintiff suffered an injury.

The language ‘as a result requires a showing that the prohibited act was the proximate cause of a harm to the plaintiff.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Scrivani v. Vallombroso, 99 Conn. App. 645, 651-52,916 A.2d 827, cert. denied, 282 Conn. 904, 920 A.2d 309 (2007).

Count 9, Paragraph 37: Damages

In paragraph thirty-seven of count nine, the plaintiff alleges that he “has suffered damages as a result of [the defendant’s] conduct, including but not limited to damage to his professional reputation, loss of prospective economic advantage, loss of future earnings, and diminished value in the professional marketplace.” With this allegation, it can be seen that the plaintiff alleges that he suffered specific damages “as a result” of the defendant’s acts that are prohibited under CUTPA. The “as a result of” phrasing tracks the language of§ 42-1 10g (a) and that used by the Appellate Court in Scrivani. 

At the motion to strike stage, the plaintiff need only allege causation in order to have a legally sufficient cause of action. The plaintiff here alleges that he suffered specific harm “as a result of’ the defendant’s alleged violation of CUTPA; that sufficiently alleges the causation element. See, e.g. Myers v. Ocean Trace Development, Superior Court, judicial district of Fairfield, Docket No. CV 00 0375476 (May 3, 2002, Gallagher, J.) (stating that the plaintiffs “adequately allege causation by alleging that [they] suffered damages ‘as a result’ of the defendants’ recklessness”). Accordingly, this court denies the defendant’s motion to strike count nine.

Footnotes

1.   As Heidell, Pittoni, Murphy & Bach, LLP is the only defendant that is a party to the motion to strike that is presently before the court, it alone will be referred to as “the defendant” in this memorandum.

2.  After the plaintiff filed the request for leave to file this amended complaint, the defendant filed an objection. This objection was overruled by the court, Jennings,      JTR., on September 22, 2010. Another defendant in this case later filed a request to revise this amended complaint, to which the plaintiff filed an objection. All of the plaintiffs’ objections were sustained by the court, Karazin, JTR., on October 14, 2010.

3.  The various counts will be addressed in the order that they are raised in the defendant’s two memoranda of law in support of its motions to strike, even though this is not the numerical order set forth in the amended complaint

New York Court vacates FINRA Arbitration Award and remands to Arbitration Panel for clarification

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Matter of Kaufman v. Kaufman Bros., LP, 33 Misc. 3d 1046; 935 N.Y.S.2d 447; 2011 N.Y. Misc. LEXIS 5215; 2011 NY Slip Op 21383 (1st Dept., 2011)
Case Background

Petitioner’s employment with Kaufman Brothers LP (“KBRO”) was terminated for allegedly interfering with the hiring of a new employee.  After his termination, Petitioner alleged that KBRO and the other Respondents engaged in malicious conduct by threatening to report his alleged criminal activities, fraudulently inducing him to default on a loan from his 401K, threatening to interfere with his new employment, and placing false information on his permanent record. Thereafter, Petitioner filed a claim with the Financial Industry Regulatory Authority (“FINRA”).

In subsequent amended filings, he asserted two claims.  Petitioner’s first claim was for defamation relating to alleged false information in the U5 termination notice and the second claim was for extreme emotional distress.  Respondents filed their answer denying the allegations as contained in Petitioner’s statement of claim, with counterclaims.

The Court’s Decision

A FINRA panel of arbitrators considered the matter and ruled that the Respondents were jointly and severally liable for and shall pay to Petitioner compensatory damages in the amount of $182,500.00.  The panel also recommended the expungement of and the addition of certain information in the Petitioner’s form U5 and the deletion of the criminal disclosure reporting page.  Finally, the Petitioner was found liable to KBRO for compensatory damages in the amount of $15,000.00.  All remaining claims for relief were denied.

Petitioner moved to confirm the award and the Respondents opposed the petition and cross-moved to vacate the award and modify the award against the Petitioner.  The Court found that the Petitioner did not make a wrongful termination claim and that his claims were for defamation and intentional infliction of emotional distress.  The claim for defamation was dismissed even though the body of the award referred to the defamatory language in the form U5.

The panel of arbitrators made an award of $182,500.00 without explaining on which claim and also made an award of $15,000.00 on the counterclaim without the benefit of explanation.  The Court concluded that the arbitrators failed to address and dispose of the issues raised by the parties and did not make specific findings of fact and credibility.  The petition to confirm the arbitrator’s award was denied and the cross-motion to vacate the award was granted.  The Court ordered that the matter be remanded to the arbitration panel for clarification.

Year End Employment Contract Bonus Payments in Connecticut: Enforceable Promises?

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Employment Contracts in Connecticut: When is a promise to pay a year-end bonus enforceable against an employer?

Given the downturn in the economy, millions of employees lost their jobs at the end of 2012. Many of those jobs were based upon a compensation structure including a base salary and a bonus to be paid at the end of the year, or early this year, as in now. If you are one of those individuals who lost your job, you are probably wondering whether you are entitled to the bonus you thought you were promised. The Connecticut Appellate Court answered this question in favor of employees.

Case Background

Here are the facts of the case. An employee worked for a small Connecticut employer for several years. At the outset of the employment relationship, the employee agreed to accept a lower salary in consideration for the employer’s promise to pay a year-end bonus. This arrangement continued for several years. Eventually, the employee left the firm and the employer decided to pay only his base salary, but no year-end bonus. The employee sued.

In the lawsuit, the employee alleged breach of contract and wrongful withholding of wages. After trial the court entered judgment for the employee on the breach of contract count awarding damages.  In reviewing the case, the Connecticut Appellate Court found that the trial court properly looked at the employment contract, and parole evidence – circumstances outside of the employment contract – to determine the appropriate compensation, including a bonus payment, for the employee during the last year of his employment. The Connecticut Appellate Court determined the parties entered into a written employment contract setting forth the criteria upon which annual compensation would be based and therefore, the employee had a viable claim to a bonus payment.

The Court’s Decision

The Court found the written employment contract only set forth the timing and basis for calculating the amount of annual compensation. The written employment contract did not set forth the expression of the parties intent as to the timing, form and amount of payment, which are essential terms to an employment contract.

The trial court concluded that the employer had agreed by either words or deeds pursuant to the compensation clause in the contract to pay a bonus to the employee for that portion of the year the plaintiff was employed with the employer. The Appellate Court further found that even though the employer and the employee were indefinite as to the amount of the bonus, this did not render the bonus promise unenforceable. The employer’s promise of a yearly bonus was supported by the consideration of the employee accepting a lower salary throughout the year.

The Appellate Court also reversed the trial court and found that the claim for wrongful withholding of wages should not have been dismissed. The Court determined that under the employment agreement the bonus could have been classified as wages under Connecticut Labor Law.

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If you have any questions regarding this article, or would like to discuss an employment contract, severance package, non-competition agreement, non-solicit agreement, or any other issue related to your employment, please contact Joseph C. Maya, Esq. at JMaya@Mayalaw.com or (203) 221-3100.

Fired Teacher Sues for Wrongful Discharge and Defamation

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A former middle school teacher who experienced wrongful termination suffered insult upon injury when he was defamed by his principal following his departure from the school, a new lawsuit alleges.

The physical education teacher – who previously had been praised as a “distinguished teacher” by the school – was continually harassed and berated by his supervising principal before ultimately being terminated, as the lawsuit sets forth.  Even after the teacher’s departure from the school, the abuse continued – culminating in the principal making a series of specific, baseless, outrageous statements to the teacher’s former colleagues.

Harassment at work: Young employees vulnerable, should know their rights

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In her mid-20s, Melanie Chalwell worked for a boss who was constantly hitting on her. Whenever she talked to him, he tried to brush up against her.

He asked Chalwell to go to his house and other places with him. At the time she thought it was funny and liked the attention.

But the Yonkers, N.Y., resident, who now works at the Danbury Fair mall, says she also knew it was inappropriate. And today, looking back on what happened, she sees the situation really was “weird.”

Young Workers Most Vulnerable

Many times, young people can become targets of harassment at work. Sometimes some older superiors may see them as vulnerable because of their inexperience.

“When you are younger you desperately want to keep this form of independence (employment), and you tend to absorb the abuse,” says Stephen L. Cuyjet Jr., an investigator for the U.S. Equal Employment Opportunity Commission (EEOC).

That’s why Cuyjet, EEOC lawyers and other staff visit schools across the nation. They want the youngest generation of workers to know the EEOC is there to help if they have harassment and discrimination problems on the job.

How the EEOC Can Help

In September 2004, the EEOC announced its Youth@Work Initiative to promote equal employment opportunities for the next generation of workers. The initiative provides a national outreach and education campaign to educate young workers about their workplace rights and responsibilities.

“They don’t know they have the right to address it,” Cuyjet says, of some young people who have been harassed.

Cuyjet says young people should first tell the person who is causing the problem to stop. If that fails, they should talk to their bosses and consult company harassment policies. But if that fails or they are not sure what to do, they can contact the EEOC.

Last summer, 21.4 million people from ages 16 to 24 held jobs in the United States, according to the U.S. Bureau of Labor Statistics. The youth work force swelled by 2.3 million from April to July – the peak month for summer employment. Nine out of 10 high school seniors work in the summer, during the school year, or both.

The EEOC has been traveling to schools, talking to youths about harassment and what to do if they’re a victim. They haven’t been to Connecticut yet, but are willing to come if called.

When Does Something Become Harassment?

Charles Brown, who is assigned to the EEOC’s Philadelphia office, has told students that some tensions in the workplace are inevitable.

“When there are boys and when there are girls, when there are men and when there are women, people are going to hit people up,” Brown says. “Is it illegal to hit on someone? No, it’s not.

“If someone is hitting on you and you don’t like it, and you tell the boss and he doesn’t do something about it, that’s when it’s illegal. If someone is hitting on you and you like it, just keep it to yourself,” he says to students.

Experience Handling Harassment Cases

It is not uncommon for attorney Joseph Maya, of Maya & Associates P.C. LLC, to see a variety of harassment cases a week that deal with young people as the victims. The firm has offices in Westport and Fairfield, and one in New York City.

Some are sexual harassment cases, others are harassment cases involving a person’s sexual orientation or a disability – from being diabetic to being obese.

Sometimes when a person is hired they do not expose certain aspects to their employer, says Maya, of the Westport office. When an employer finds out, they can get apprehensive about having such people at risk on the job.

Employers who are unsure about a person because of their condition may try to push the person out, with tactics such as making their job difficult, rather than risk getting rid of the employee and being faced with a lawsuit.

Often sexual harassment cases happen when a superior harasses a subordinate, says Maya. The superior knows the subordinate may be inexperienced in the work force and not know what is appropriate work conduct.

Young people view social norms in different ways. Some young people might think it is OK to discuss sex and curse at work because they do it normally, while older people realize it is not acceptable, says Maya.

“In the workplace it is not acceptable under any circumstances,” says Maya.

His firm handled a case where an 18-year-old woman was working at the Milford mall where her boss (in his early 20s) continued to hit on her and make sexual advances. She did not respond to the advances, finally going to the firm after he physically assaulted her. After police began to investigate, they found others had complained to mall security about the man harassing people.

Maya says another case involved a woman in her early 20s, just out of college, who worked for a business in New York. Her male boss was always staring at her, brushing up against her, and making comments about how sexy she looked.

She didn’t go along with the sexual advances and little by little he kept piling on more work. Eventually he fired her, saying she was incompetent.

The firm has also dealt with harassment against men. One man in his mid-20s, attending college at the time, was sexually harassed by his female boss. She constantly told him about her divorce and how she had not had sex in so long, says Maya.

She told him she thought about him a lot and asked him to come over.

The man didn’t want to get involved and did not respond to her advances. Soon the woman started to criticize his work, forcing him to resign.

Chalwell has a friend who was sexually harassed when she was in her 20s. It occurred while she was working in a supermarket in Yonkers, N.Y. Her male boss started flirting with her. Then he started smacking her butt every once in a while.

She became uncomfortable with the situation and refused his advances. Her boss started cutting her hours and talking rudely about her to other employees.

She then was suspended and hired a lawyer to help her get her job back. She got the job back, but no one believed her about what had happened.

Finally wanting to prove that her boss in fact was acting inappropriately, she confronted him and secretly taped his response, later using it against him. The grocery chain where the boss was working settled out of court with her for about $90,000.

“She did what she had to do,” says Chalwell, of her friend pressing charges. “She shouldn’t have had to deal with it.”

Joseph Maya’s Message to Victims

Maya wants all victims to realize this: Any individual who feels he or she is potentially a victim of harassment should contact the Connecticut Commission on Human Rights and Opportunities.

If a person does not want to do that, he or she should talk to someone such as a parent, teacher or someone trusted.

Maya, who helped draft New York City’s Human Rights law in the early 1990s, protecting employees in the workplace from discrimination, wants people to know they should not be afraid to make complaints and complaints should be taken seriously. He adds that 99 percent of lawyers who deal with harassment cases will give a free consultation.

To contact the Connecticut Commission on Human Rights and Opportunities, call 1-800-477-5737 or go to their Web site at http://www.ctgov/chro/. For further information visit http://youth.eeoc.gov, or send an e-mail to Youth.AtWork@eeoc.gov, or call (202)663-4624.

Knight Ridder Newspapers contributed to this story.
Contact Heather Barr
at hbarr@newstimes.com
or at (203) 731-3331.

Liability Under Dram Shop Act Requires “Visible Intoxication”

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The Appellate Court of Connecticut considered whether or not a trial court’s denial of a motion to set aside the verdict in a case involving the Dram Shop Act was an abuse of discretion, because a required element of the offense charged was not established by the plaintiff.

Case Background

In this case, a citizen and his friend were at a restaurant-bar where they were playing billiards. The citizen consumed five beers, two alcoholic shots, and a blackberry brandy within a four-hour period, but did not exhibit any physical signs of intoxication. Nonetheless, while drunk, he purchased an alcoholic beverage from the restaurant’s bartender. Subsequently, the citizen and his friend left the restaurant-bar and were involved in an accident, resulting in the friend’s death.

The estate of the friend (plaintiff) brought a wrongful death action against the owners of the restaurant (defendant), claiming liability under the Dram Shop Act, Connecticut General Statutes (CGS) § 30-102. A jury found in the plaintiff’s favor and awarded $4 million in damages, though the defendant sought reduction to the statutory $250,000, which the court granted. The defendant also filed a motion to set aside the verdict and a directed verdict, arguing, in part, that “no evidence was presented from which the jury reasonably could have concluded that [the citizen] was intoxicated” under CGS § 30-102. The motion was denied, and the defendant appealed, arguing that the trial court abused its discretion in denying the motion.

Proof of “Visible Intoxication” Required

CGS § 30-102 is the statutory mechanism through which a plaintiff may recover damages from one who sells alcohol to an intoxicated person, and such person subsequently causes an injury. For the plaintiff to prevail in such an action, he or she must prove that “there was (1) a sale of intoxicating liquor (2) to an intoxicated person (3) who, in consequence of such intoxication, causes injury to the person or property of another.” At issue on appeal in this case was whether or not the second element requires proof of “visible intoxication” or what amounts to per se intoxication.

The Appellate Court agreed that a showing of visible intoxication was required, and stated that for purposes of CGS § 30-102, “an individual must exhibit some type of physical symptomology in such a way that an observer could perceive that the individual was indeed under the influence of alcohol to some noticeable extent.” In addition, the plaintiff must present evidence that shows the subject in question was either visibly or perceivably intoxicated.

Appellate Court Ruling

In this case, the Appellate Court noted that while the evidence presented at trial may establish intoxication as it is used in our DUI law (CGS § 14-227a), it was insufficient to prove intoxication under CGS § 30-102. As the Court elaborated, the plaintiff did not present any evidence of visible intoxication – indeed, there was no evidence at all showing that the citizen “was exhibiting any visible or perceivable indications that he was intoxicated.” Therefore, the court abused its discretion in denying the motion to set aside the verdict, because based on the evidence presented, a jury could not have found the required element of “intoxicated person.” Therefore, the judgment was reversed and case remanded.

Written by Lindsay E. Raber, Esq.

Should you have any questions, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Federal Court Does Not Vacate FINRA Arbitration Award Denying ERISA Claims

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Stephen P. Finkelstein v. UBS Global Asset Management (US) Inc. and UBS Securities LLC,2011 WL 3586437 (S.D.N.Y. Aug 9, 2011)

In a case before the Southern District of  New York, Stephen P. Finkelstein (“Finkelstein”) filed a petition to vacate part of a Financial Industry Regulatory Authority (“FINRA”) Arbitration Award dated October 20, 2010, pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. § 10. UBS Global Asset Management (US), Inc., and UBS Securities LLC, (collectively “UBS”) filed a cross-motion to confirm the arbitration award pursuant to the FAA, 9 U.S.C. § 9.  The court denied Finkelstein’s motion to vacate and granted UBS’s motion to confirm the arbitration award in their favor.

Case Background

The underlying dispute is based on UBS’s denial of Finkelstein’s claim for a special payment under the UBS severance pay plan, which is governed by the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132.  Finkelstein began his employment with UBS in 2002.  In April 2006, he was internally transferred to a hedge fund as a portfolio manager responsible for a variety of subprime securities.  Within a year of his transfer, the hedge fund suspended his trading authority due to losses of over $300 million in his positions.  A few months later, UBS closed the hedge fund based on its overall losses; hedge fund employees were either offered new jobs or terminated.  Finkelstein was terminated without cause in August 2007.

The UBS separation program contained a provision offering a special payment to employees who were terminated on or after October 1, but before the date on which bonuses are usually paid.  As part of the closure of the hedge fund, UBS adopted a supplemental program that amended the special payment provision to provide eligible employees with a special payment at the discretion of the hedge fund’s management, even though these employees were not terminated on or after October 1.

The written eligibility requirements of the supplemental program specified dates of employment and involuntary termination; the hedge fund’s management exercised its discretion to define the formula for calculating the amount of the special payment and to exclude employees who were responsible for substantial losses at the time of the hedge fund’s closure.  Therefore, despite having satisfied the written eligibility requirements of supplemental program, Finkelstein was offered a separation package that did not include a special payment.

Finkelstein’s Claims

Pursuant to the separation program’s grievance procedures, Finkelstein submitted a claim for benefits demanding a special payment that was equivalent to 25-percent of his 2006 bonus, which was in accordance with the formula determined by the hedge fund management.  Although he acknowledged the losses on his 2007 trading book, Finkelstein attempted to explain that greater than half the losing positions were purchased by his partner without his consent and that the remainder of the losses could be recovered over time.

The severance committee denied Finkelstein’s claim, stating that the hedge fund’s management had appropriately exercised its discretion in denying him a special payment.  Finkelstein requested a review of the severance committee’s denial of his claim, and was again denied his demand for a special payment.

In December 2008, Finkelstein filed a Statement of Claim with FINRA seeking an award of the special payment.  FINRA appointed a panel of three arbitrators to hear the matter and, in October 2010, entered an award in favor of UBS without any explanation or rationale.

Finkelstein filed a petition in federal district court to vacate the arbitration award on the following three grounds: (a) the arbitration panel decision was in “manifest disregard” of ERISA, 29 U.S.C. § 1145; (b) the arbitration award was procured through the fraudulent concealment of material information by UBS; and (c) the arbitrators refused to hear evidence pertinent and material to the controversy.

Basis of Manifest Disregard

Vacating an arbitration award on the basis of manifest disregard of the law requires the challenging party to demonstrate that the arbitrators clearly defied the law either by rejecting precedent or pronouncing a decision that strains credulity. See Stolt–Nielsen SA v. AnimalFeeds Int’l Corp., 548 F.3d 85, 92–93 (2d Cir.2008),reversed on other grounds, 130 S.Ct. 1758 (2010).

However, even if the arbitrators do not explain the reasons for their decision, the court will uphold the arbitration award “if a justifiable ground for the decision can be inferred from the record.” Id.at 97. In his petition, Finkelstein contended that the FINRA arbitration panel manifestly disregarded ERISA, 29 U.S.C. § 1145, on four different grounds.  The most significant basis for his contention was that the arbitration panel should have rejected UBS’s unwritten, oral modification of the ERISA severance pay plan to exclude employees responsible for substantial losses from special payment eligibility.  Both the ERISA statute, 29 U.S.C § 1102(a)(1), and case law within the Second Circuit require that all amendments to employee benefit plans be in writing.

Court’s Ruling on Manifest Disregard

However, the written documents of the hedge fund supplemental program expressly conferred the hedge fund management with certain discretionary powers; therefore, the court determined that it was not erroneous for the arbitration panel to conclude that the unwritten rule excluding employees who incurred substantially losses was a permissible exercise of this discretionary authority, rather than an oral modification of the supplemental program.  Because the ERISA provision on oral modifications cited by Finkelstein was inapplicable, the arbitration panel had colorable justification to conclude that it was not violated.

Consequently, the court determined that Finkelstein failed to demonstrate manifest disregard of ERISA on these grounds. The court also found that each of the remaining challenged panel determinations was supported by a colorable justification.  Therefore, the court concluded that the arbitration award could not be vacated for manifest disregard of the ERISA statute.

Court’s Ruling on Fraud

Vacating an arbitration award on the basis of fraud under the FAA, 9 U.S.C. § 10(a)(1), requires the challenging party to produce clear and convincing evidence that there was fraud that could not have been discovered during the arbitration process and that such fraud is materially related to the award.Chimera Capital, L.P. v. Nisselson (In re MarketXT Holdings, Corp.),428 B.R. 579, 590 (S.D.N.Y. 2010) (citingA.G. Edwards & Sons, Inc. v. McCollough.967 F.2d 1401, 1404 (9th Cir. 1992) (per curiam).   Finkelstein alleged that UBS concealed material information relevant to the dispute.

However, the court determined that UBS could not have fraudulently concealed information that they had no obligation to disclose, and also determined that UBS did voluntarily disclose the challenged information in an accurate manner.  Therefore, the court concluded that the arbitration award could not be vacated on the basis of fraud under the FAA.

Court Ruling on Refusing to Hear Evidence

Vacating an arbitration award on the basis of refusing to hear evidence pertinent to the dispute, 9 U.S.C. § 10(a)(3), has been interpreted by courts to mean that an arbitration award will not be opened to evidentiary review except “where fundamental fairness is violated.” Tempo Shain Corp. v. Bertek, Inc.,120 F.3d 16, 20 (2d Cir.1997) (quotingBell Aerospace Co. Div. of Textron v. Local 516,500 F.2d 921, 923 (1974)).

The arbitration panel denied Finkelstein’s request for production of evidence concerning the value of any parallel investments held by the UBS Investment Bank.  He contended this evidence was highly relevant because it would have negated UBS’s assertion that his trading activities sustained substantial losses.  It was within the arbitration panel’s broad discretion to determine that the requested materials would have been irrelevant and/or unduly burdensome for UBS to produce.

The court determined that the arbitration panel’s refusal to compel UBS to produce this evidence did not deny Finkelstein a “fundamentally fair” hearing because the scope of inquiry afforded him was sufficient to provide him with a reasonable opportunity to be heard and to enable the arbitration panel to make an informed decision.  Therefore, the court concluded that the arbitration award could not be vacated on the basis of refusing to hear evidence.

The court denied Finkelstein’s petition to vacate the FINRA arbitration award, and entered judgment to confirm the arbitration award in UBS’s favor.

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Should you have any questions relating to FINRA, arbitration or employment issues, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County, Connecticut at 203-221-3100 or at JMaya@Mayalaw.com.

California Court Modifies FINRA Arbitration Award to Provide for a Setoff

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UBS Financial Services, Inc. and Piper Jaffray & Co. v. Mark C. Riley, 2012 WL 1831720 (S.D. Calif. May 18, 2012)

In a case before the Southern District of California involving a setoff in a FINRA arbitration award, UBS Financial Services, et al, (“UBS”) petitioned to confirm, or in the alternative modify, a Financial Industry Regulatory Authority (“FINRA”) Arbitration Award issued September 2, 2011.  Mark Riley (“Riley”), a former USB employee, filed a reply.  The court granted UBS’s alternative motion to modify the award and awarded UBS pre and post judgment interest.  All other motions were denied.

Case Background

The underlying dispute in this case arose when Riley failed to satisfy his indebtedness on two promissory notes after he terminated his employment with UBS, which had acquired his previous employer, Piper Jaffray.  The two loans were received during Riley’s course of employment with Piper Jaffray and UBS.  Because submission to FINRA arbitration was included in Riley’s employment agreement with UBS, the firm initiated a FINRA arbitration claim against Riley to recover the outstanding balances, as well as interest and attorneys’ fees.   Riley filed a counterclaim against UBS and Piper Jaffray, alleging claims related to his employment with the firms.

FINRA appointed a panel of three arbitrators to hear the matter.  The panel issued an arbitration award in favor of UBS for $377,024.83, including principal, interest and attorneys’ fees.  The panel also held UBS and Piper Jaffray jointly and severally liable to Riley in the amount of $127,024.83.  One week after the award, UBS filed a motion with the arbitration panel requesting clarification of the award to provide for Riley’s award to be offset against the UBS award.

Debate about Setoff

The Director of Arbitration rejected the motion because it did not comply with the FINRA Code of Arbitration Procedure for Industry Disputes Rule 13905, which provides that parties may not submit documents to arbitrators in cases that have been closed except under limited circumstances.  Therefore, UBS petitioned the federal district court to confirm, or alternatively modify, the award with a setoff of the amount awarded to Riley against the larger amount awarded to UBS, and to enter a single judgment in favor of UBS in the net amount of $250,000, plus interest, attorneys’ fees and costs.

The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1–16, governs the role of federal courts in reviewing arbitration decisions and provides very limited grounds on which a federal court may correct, modify or vacate such decision.  “Under the statute, confirmation [by federal court] is required even in the face of erroneous findings of fact and misinterpretations of law.” Kyocera Corp. v. Prudential–Bache T Serv’s, Inc., 341 F.3d 987, 997 (9th Cir. 2003) (internal quotation marks and citation omitted)

Riley argued the award should be confirmed without setoff on three separate grounds: (1) the court does not have the authority to provide a setoff; (2) UBS and Piper Jaffray are jointly and severally liable so to allow an offset against the money awarded to UBS would deprive him of the ability to recover from Piper Jaffray; and (3) his counsel’s attorneys’ fee lien on his award takes priority over UBS’s right to a setoff.   He opposed modification of the award for the same reasons.

Section 11 of the FAA

The court denied UBS’s motion to confirm the arbitration award with a setoff because it was unable to find any authority in the Ninth Circuit to permit a setoff in the confirmation of an arbitration award.  However, section 11 of the FAA permits a federal court to modify or correct an award “as to effect the intent thereof and promote justice between the parties” under the following circumstances:

(a) Where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award.

(b) Where the arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matter submitted.

(c) Where the award is imperfect in matter of form not affecting the merits of the controversy.

Decision for Setoff

The court determined that allowing for a setoff in the instant case was consistent with the requirements of section 11(c).  The court was not required to reconsider the merits of the arbitration decision, and the modification did not affect the amount of damages awarded to either party.  Setoff only modified the form of the award to avoid the potentially unjust consequences of UBS paying Riley a substantial sum of money in a situation where there was a high likelihood that Riley would not pay UBS in return.  Finally, allowing Riley to pay just his net obligation would avoid “the absurdity of making A pay B when B owes A.” Studley v. Boylston Nat’l Bank of Boston, 229 U.S. 523, 528 (1913).

The court ordered the FINRA arbitration award be modified to a single judgment of $250,000 in favor of UBS.  It also awarded UBS prejudgment interest at the state interest rate of nine percent per annum on the sum of $250,000.00 from the date of the arbitration award until the judgment was entered in federal court, and post-judgment interest at the federal interest rate as provided for in 28 U.S.C. § 1961 from the entry of the judgment until the judgment award is paid in full.

Should you have any questions relating to FINRA, employment or arbitration issues, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County, Connecticut at 203-221-3100 or at JMaya@Mayalaw.com.

Making a Lease’s Anti-Assignment Clause Enforceable

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Connecticut Supreme Court: Lease Terms

Most commercial real estate leases contain an anti-assignment clause.  Such provisions prohibit any assignment of the lease without the permission of the landlord.  Often the lease will state that the requisite permission will not be unreasonably withheld; other times, the granting of permission remains in the sole discretion of the landlord.  A decision of the Connecticut Supreme Court has placed a significant judicial gloss on the effect of these traditional lease terms and commercial landlords and tenants should be aware of the new rules of the game.

David Caron Chrysler Motors LLC v. Goodhall’s, Inc., 304 Conn. 738 (2012)

In David Caron Chrysler Motors LLC v. Goodhall’s, Inc., 304 Conn. 738 (2012), a landlord leased commercial property to a limited liability company tenant.  The lease contained the typical “no assignment without landlord consent which will not be unreasonably withheld” language.  The tenant assigned the lease to the plaintiff without the landlord’s consent.

Findings

The plaintiff brought suit claiming that the landlord had violated the lease.  The trial court found that the absence of landlord consent to the earlier assignment of the lease precluded a finding of an enforceable contract (i.e., lease) between the parties.  The Connecticut Supreme Court reversed the decision below.  It found that because the particular anti-assignment clause did not also state that any assignment would be rendered void or invalid, the challenged assignment was merely “voidable.”  The court found significant the fact that the landlord never sought to invoke its option to void the lease, post assignment.  Thus, the landlord remained bound by the lease, albeit with a new, assignee tenant.

Conclusion

The take-away from David Caron Chrysler Motors, LLC, is that landlords should adopt a “belt and suspenders” approach to drafting anti-assignment clauses.  The lease should expressly state that (a) there is to be no assignment of the lease without landlord consent, and (b) any purported assignment of the lease in violation of such provision shall be void.  The absence of such additional, clarifying language can result in a landlord having to accept a previously unacceptable assignee tenant.

The commercial litigation attorneys in the Westport, Connecticut office of Maya Murphy, P.C. have extensive experience in the negotiation and litigation of all sorts of business-related disputes and assist clients from Greenwich, Stamford, New Canaan, Darien, Norwalk, Westport and Fairfield and resolving such issues.

ESI or “Electronically Stored Information”—The Hidden Litigation Tripwire

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New York: (212) 682-5700 Connecticut: (203) 221-3100

When examining the impacts of ESI technology, we must understand that we live in a digital world.  So prevalent is “data” that we forget that we are surrounded by visual portrayals of streams of zeroes and ones.  We have computers at work as well as at home, and laptops, PDA’s, and “Blackberrys” to keep us connected to e-mail, voice mail, and text messages while we vacation or commute (and blur the distinction between the two).  It has been said that technology is a wonderful slave and a terrible master.

Technology may also present the least understood and a most dangerous trap for the unwary litigant—one that can lose a case before it is even begun.  The solution is a timely and thoughtful “litigation hold” letter, and this article will explain when one has to be sent, and what it should say.

Adoption and Aftermath of the Federal Rules of Civil Procedure

Over the years, the Federal and State Rules governing pretrial discovery have generally kept pace with societal changes so that discovery vehicles such as Requests for Production could be tailored to fit the myriad and unique circumstances that surround any case, and perform as designed.  Technological advances, however, have pulled far ahead of the rules, and Courts have been scrambling to catch up.  Thus began the evolution of discovery of “electronically stored information”, or “ESI.”

Court interpretation of the discovery rules has given lawyers and litigants guidance on how to uncover ESI, but they also impose draconian penalties for conduct that heretofore might have been countenanced by a well meaning and lenient jurist.  The purpose of this article is to warn business owners and their counsel of the unseen pitfalls of ESI, and ensure by means of a “litigation hold” letter that devastating sanctions are avoided.  Simply stated, a “litigation hold” letter commands a party (or client) to locate, segregate, and preserve documents and data that may be relevant to pending or threatened litigation.

Relevant Court Cases: Zubulake IV and Pension Committee

In 2003 and 2004, Judge Shira A. Scheindlin of the United States District Court for the Southern District of New York, decided two in the series of the Zubulake v. UBS Warburg LLC cases and introduced a brave new world of ESI discovery.  In 2010, Judge Scheindlin decided Pension Committee of the University of Montreal Pension Plan v. Bank of America Securities, LLC, 2010 U.S. Dist. LEXIS 1839 and dispelled any doubt about the duty to preserve and produce ESI, and the penalties to be imposed for its breach.

One teaching of Pension Committee is that the rules articulated in Zubulake are now “well established” and lawyers and litigants ignore them at their peril.  Judge Scheindlin leaves no room for interpretation or debate:

“Possibly after October, 2003, when Zubulake IV was issued, and definitely after July, 2004, when the final relevant Zubulake opinion was issued, the failure to issue a written litigation hold constitutes gross negligence because that failure is likely to result in the destruction of relevant information.” 2010 U.S. Dist. LEXIS at * 10.

The corollary teaching of Pension Committee is that if a party is currently in litigation or reasonably anticipates litigation, then such party in conjunction with its counsel must issue a timely and written litigation hold and supervise and oversee that hold diligently and in good faith, or face sanctions to include termination of the underlying case to its extreme prejudice.

Consequences of Misconduct with Respect to ESI

A party to litigation or a party that reasonably anticipates litigation (more on that amorphous concept later) has a duty to preserve, collect, review and/or produce relevant evidence.  In failing to discharge that duty with respect to ESI, the party’s conduct may amount to negligence, gross negligence (a failure to exercise even that care which a careless person would use), or willful and bad faith misconduct (an intentional act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow).  In each instance, available sanctions ratchet up accordingly.

With regard to the duty to preserve, post-Zubulake, the failure to issue a timely, written litigation hold will likely rise to the level of gross negligence.  With respect to the duty to collect, the failure to collect paper or electronic records from “key players” (another “fuzzy” concept that may even include former employees) constitutes gross negligence or willfulness, in contradistinction to failing to collect records from all employees, which may be viewed as mere negligence and carry a lesser penalty.  As noted by Judge Scheindlin, “[e]ach case will turn on its own facts and the varieties of efforts and failures is [sic] infinite.”  Id. At * 12-13.

So what is a business owner/HR executive/general counsel to do?

The first step is to understand when the ESI duty to preserve, collect, etc. attaches.  Where a party sues or is sued, that particular point in time is clearly defined.  But when must a party “reasonably anticipate” litigation?  If one or two employees get a mere whiff of threatened litigation, that does not impose an “all hands on deck” company-wide duty to preserve.

If those same employees, however, document their concerns with an identifiable plaintiff and targeted defendant, then the duty to preserve would arise well in advance of the actual filing of the lawsuit.  Often, it is middle-management that first sees litigation storm clouds on the horizon, and they need to be conditioned to alert senior management and outside counsel to threatened litigation.

Once the alarm is sounded, the litigation hold letter must be carefully drafted and quickly disseminated.  Each situation is different, and this is not an area where a generic, “one size fits all” form letter can be sent.  Management and counsel should collaborate on ensuring company-wide compliance and the letter should emanate from the company’s upper echelons (e.g., CEO, COO, and CIO).  Implementation and supervision of the litigation hold cannot be delegated away and senior management must remain involved and responsible throughout the process.

In the words of Judge Scheindlin, “[i]n short, it is not sufficient to notify all employees of a litigation hold and expect that the party will then retain and produce all relevant information.  Counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched.”  Zubulake V, 229 F.R.D. at 432.

Conclusion

The litigation hold letter is both a sword and a shield.  It is a recognized and ubiquitous “terrain feature” on any litigation landscape and litigants and lawyers are now on notice that they are expected to be familiar with the evolving law and conform fully to its requirements.  Every case is different, however, and must be analyzed and evaluated on its own peculiar facts and circumstances.  If you have any questions relating to ESI in general, or litigation hold letters, in particular, please contact Maya Murphy by phone at (203) 221-3100.