Litigation

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

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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.

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If you have any questions relating to litigation hold letters, or ESI in general, please contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com to schedule a  consultation today.

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.

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If you have any questions regarding this posting, or any other matter, please do not hesitate to contact Attorney Joseph C. Maya at Maya Murphy, P.C. in Westport, Connecticut at (203) 221-3100 or 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.

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If you have any questions regarding the content above, please do not hesitate to contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com to schedule a consultation today.

Medical Devices Hurting Kids

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Medical Devices –  from contact lenses to insulin pumps – injure about 70,000 children each year in the United States. A study published in the journal Pediatrics Monday is the first to compile data on the injuries. The increasing use of medical devices designed for adults in children concerns researchers.

  • A groundbreaking study of hospital admissions estimates over 70,000 injuries yearly
  • Many injuries linked to improper handling or care of medical devices by patients
  • Concerns over pediatric use of adult devices
Many Injuries Preventable, Some Tradeoffs Made

Contact lenses caused one-quarter of the injuries counted. Many of these were minor infections or scratches caused by kids failing to clean their contacts carefully or wearing them too long. Devices also caused some serious injuries. Some devices allow children to be treated at home instead of in the hospital. Sometimes parents lack the skill or knowledge to handle the devices properly. The idea that some of the injuries may be the result of adult devices being used in children raises questions of defective design by manufacturers and malpractice by caregivers.

As doctors and healthcare use medical devices more frequently to treat patients, litigation over injures the devices cause also increases. Very often the litigation takes the form of a class action. In a class action, the claims of numerous people who’ve been injured by the same device or drug are combined in one lawsuit. Injured persons may choose to join the lawsuit or go it alone.

Class actions involving persons injured by medical devices will involve some form of a product liability claim. Individual claims relating to devices might also involve a theory of medical malpractice or negligence. The increase in malpractice and products liability cases continues to stoke the health care and tort reform debate.

By: Arthur Buono

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If you have any questions relating to a medical malpractice claim, medical injury, personal injury claim or would like to schedule a free consultation, please contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com to schedule a consultation today.

When Third-Party Custody is Awarded in Connecticut

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CT Third Party Custody 

Third-party custody can be awarded in Connecticut under some very exceptional circumstances. Most third-party actions fail and custody is ultimately awarded to a parent because they have a fundamental right to raise their children. The Connecticut Judicial Branch put out a few publications that outline what it takes for a third party to win in a custody action and the standards that will be applied to such actions.

That publication included an analysis of a landmark case in Connecticut, Fish v. Fish, that helped shape the law on this issue in Connecticut. That case has since been cited as the proper way to interpret C.G.S.A. 46b-56 and 46b-57 which deal with custody and visitation. The CT publication and Fish v. Fish will be excerpted in the following to explain this tricky custody issue.

Basic CT Principals

To begin it is helpful to outline a few basic Connecticut principles. First, “third parties cannot initiate custody proceedings, unlike third parties who are permitted to initiate proceedings in visitation cases.” Fish v. Fish, 285 Conn. 24, 72 (2008). Therefore, in order for a third party to make a claim for custody, they would have to intervene in an already initiated custody proceeding.

Next, a third party attempting to intervene in a custody proceeding needs to have proper standing. Unlike a parent who clearly has standing in a custody proceeding, a third party needs to overcome this constitutional hurdle by properly alleging a parent-like relationship.

As stated in Fish, “. . . to avoid constitutional infirmity, the standing requirement that a third party allege a parent-like relationship with the child should be applied for all of the reasons described in Roth to third party custody awards and to third parties seeking intervention in existing custody proceedings.” Id. at 44.

Overcoming a Strong Parental Presumption

If a third party does intervene properly and has standing, then the third party needs to overcome a strong parental presumption. “The statutory presumption in favor of parental custody may be rebutted only in exceptional circumstances and only upon a showing that it would be clearly damaging, injurious or harmful for the child to remain in the parent’s custody.” Id.

“Where the dispute is between a fit parent and a private third party, both parties do not begin on equal footing in respect to rights to care, custody, and control of the children. The parent is asserting a fundamental constitutional right. The third party is not. A private third party has no fundamental constitutional right to raise the children of others.

Generally, absent a constitutional statute, the non-governmental third party has no rights, constitutional or otherwise, to raise someone else’s child.” Id. at 46. Most jurisdictions have observed that third-party custody awards should be exceptional in nature and that the concept of detriment involves a type of analysis qualitatively different from that involving the best interests of the child.

Fish Court Conclusion

The Fish court concluded, “that the statutory presumption in favor of parental custody may be rebutted only in exceptional circumstances and only upon a showing that it would be clearly damaging, injurious or harmful for the child to remain in the parent’s custody.”

See In re B.G., 11 Cal.3d at 698. “We add that this does not mean temporary harm of the kind resulting from the stress of the dissolution proceeding itself but significant harm arising from a pattern of dysfunctional behavior that has developed between the parent and the child over a period of time.” Id. at 57.

“Such a standard is not constitutionally infirm or susceptible to the criticism sometimes leveled against the “best interests of the child” test because it does not allow the court to apply its own “personal and essentially unreviewable lifestyle preferences.” Roth v. Weston, 259 Conn. at 223.

“At the same time, the standard we adopt is narrowly tailored to limit the scope of intervention to those exceptional cases in which parental custody would result in significant harm to the child, thus serving the compelling state interest of protecting the liberty interests of the parents while remaining sensitive to the child’s welfare.” Id.

To Summarize

As you can see there are significant hurdles for a third party to overcome if they have a legitimate reason for wanting custody of someone’s child. In summation, the party must prove by a fair preponderance of the evidence facts demonstrating that he or she has a relationship with the child akin to that of a parent, that parental custody clearly would be detrimental to the child and, upon a finding of detriment, that third party custody would be in the child’s best interest.

Third-party custody is an uphill fight and only a very experienced attorney can help a client navigate these rough waters. If you need a lawyer’s assistance in a custody matter, don’t hesitate to call one of Maya Murphy’s experienced family law attorneys for a free consultation at 203-221-3100.

Written by Kyle M. Buonocore, Excerpts from Fish v. Fish, 285 Conn. 24 (2008).

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If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

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 CUTPA 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

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If you have any questions related to the content above, or any other employment matter, please do not hesitate to contact Joseph Maya and the other experienced employment law attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com to schedule a free initial consultation.

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 (203) 221-3100 or JMaya@Mayalaw.com.

Harassment at Work: Young Employees are Vulnerable and 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.

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If you have any questions regarding workplace harassment or other employment matters, do not hesitate to contact Joseph Maya and the other experienced employment law attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com to schedule a free initial consultation.

Negligence Claims Against School Following Son’s Suicide

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Plaintiff’s Negligence Claims Against School Following Son’s Suicide Survive Motion to Strike, Proceeds Further Into Litigation

Michael Girard was a senior at Putnam High School during the 2005-2006 academic year when his guidance counselor learned that he was suicidal and/or had threatened to kill himself. However, the counselor took no action to aid Michael despite a conversation with him about the threat, and simply let him leave for home by himself. Michael also “expressed an intention to harm or kill himself in the presence of employees and agents of the High School, Board of Education, and Town” while on school grounds during school hours. Once again, no official action was taken by any of these individuals. On March 23, 2006, Michael committed suicide by methadone toxicity.

At the time of Michael’s death, Putnam schools had a Suicide Prevention Policy (policy) in effect in the district. It set forth “detailed guidelines” on actions for staff to take when confronted with a scenario such as Michael’s. It required “immediate notification of emergency personnel or school psychologist or social worker,” and stated, “Under no circumstances is a student allowed to go home. The student must be released only to a parent, guardian, or other responsible adult.”

Lawsuit Arguments

In light of this policy, Michael’s parents filed a negligence lawsuit against the Town of Putnam, Board of Education, and various school employees, including the guidance counselor (collectively “defendants”). However, the defendants submitted a motion to strike, challenging the legal sufficiency of the amended complaint’s allegations. They argued on two fronts:

  • “The act of suicide is a deliberate and intentional act” absolving the defendants from liability. In other words, because Michael’s death was an unforeseeable, intentional tort, the defendants were could not be sued for negligence.
  • The defendants also claimed governmental immunity protection, pursuant to Connecticut General Statutes §§ 52-557n and 52-557n(b)(6). “[M]unicipalities and its employees may be exposed to liability for acts of negligence unless the function involved the exercise of discretion,” and there is no immunity for ministerial acts (exercise of judgment and discretion not allowed). In essence, the defendants argued that whether to follow the policy was “a discretionary function.”
The Court’s Decision

The Superior Court of Connecticut, Judicial District of Windham at Putnam denied the motion to strike as to these claims. It noted that while “suicide generally is an unforeseeable result that serves to preclude liability,” it does not automatically “break the chain of causation if it was a foreseeable result of the defendant’s tortious act.” In this case, the Court determined that Michael’s suicide “could be a foreseeable result of school staff’s failure to follow the suicide prevention policy.” As further explained:

It is foreseeable that if a person declares an intent to commit suicide, suicide is a foreseeable risk if nothing is done. Indeed, it was the written policy of the Putnam High School to immediately safeguard a student and obtain emergency medical or professional assessment and counseling for such a student in that circumstance. That is a clear cut warning of the need to take action. It creates a foreseeable harm as a consequence of a failure to act. No reasonable staff member could have concluded otherwise…

In addition, the Court was not persuaded by the defendants’ second argument. “[T]he Suicide Prevention Policy, by its terms, resolved that staff members are not qualified to assess whether someone is suicidal and it forbids discretion or delay in sending a student, who threatens suicide, to someone who is qualified to make the assessment.” When a staff member faces a situation like Michael’s, they must “follow their own mandatory procedures after a ministerial duty was triggered.” Therefore, the governmental immunity protection was inapplicable.

Intentional Infliction of Emotional Distress

Ultimately, the Court granted the motion to strike as to intentional infliction of emotional distress claims (as to the parents), but permitted the negligence claims related to Michael’s death to proceed further into litigation. “The plaintiff has alleged sufficient facts to show that the defendants committed negligent acts that increased the risk of accomplishment of a suicide by [Michael], and that their negligence was a substantial factor in causing that harm.”

The case is Estate of Michael Girard et al. v. Town of Putnam et al., CV-08-5002754-S.

Written by Lindsay E. Raber, Esq.

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Should you have any questions about school liability or other education law matters, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C. in Westport, Connecticut by telephone at (203) 221-3100, or by email at JMaya@Mayalaw.com.

Stop and Shop Slip and Fall Recovers $537,787 Against Attorney

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Bell v. Law Offices of Howard A. Lawrence, LLC, NNHCV116025442S, 2013 WL 1943849 (Conn. Super. Ct. Apr. 19, 2013)

In a Connecticut Superior Court decision, Norma Bell recovered $537,787 in damages stemming from a fall at Stop and Shop Supermarket. The plaintiff’s award was against her former attorney in her personal injury action against Stop and Shop, who had failed to appeal Stop and Shop’s Motion to Dismiss.[1]

Case Background

On August 25, 2006, Norma Bell, when exiting from the Stop and Shop Supermarket located at 100 Division Street in Ansonia, fell due to the dangerous and defective condition of the parking area next to the store provided for use by its patrons.[2]  Stop and Shop, although not the owner of the parking area, would have the duty to use reasonable care to maintain the said area in a reasonably safe condition to which its patrons were invited to use.

As a result of her fall, the plaintiff sustained serious and permanent personal injuries including a serious cerebral concussion, frontal sinus dehiscence requiring craniotomy.[3]  Bell retained Howard A. Lawrence to represent her in connection with a claim for monetary compensation.

Bell’s attorney, Lawrence, filed suit against Stop and Shop only.  However, the lease agreement between Stop and Shop and the owner of the parking lot provided the lot owner was responsible for maintenance.  Bell’s attorney failed to include the owner of the parking in the action and after the court granted Stop and Shop’s Motion To Dismiss, Lawrence failed to appeal.

In the subsequent legal malpractice lawsuit against the Law Offices of Howard A. Lawrence, Bell won a judgment of $537,787.41 ($187,781.41 in economic damages and $350,000 for noneconomic damages) representing her damages for the “lost cause” against Stop and Shop.[4]

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At Maya Murphy, P.C., our experienced team of personal injury attorneys is dedicated to achieving the best results for individuals and their families and loved ones whose daily lives have been disrupted by injury.  Our personal injury attorneys assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and throughout Fairfield County.

If you have any questions relating to a personal injury claim or attorney malpractice claim or would like to schedule a free consultation, please contact Joseph Maya and the other experienced attorneys at our Westport office by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.