Posts tagged with "Court"

No Child Left Behind – Connecticut

What is NCLB?

One of the legislative centerpieces of Federal Education Law is “The No Child Left Behind Act of 2001” (“NCLB”).  The Act is 670 pages in length and almost as controversial as it is long.   Therefore, parents should be familiar with at least its stated purpose and general provisions.  NCLB does not, however, give parents the right to sue on behalf of their children. 

NCLB funds Federal programs established by the U.S. Department of Education aimed at improving the performance of schools throughout the 50 states by imposing greater accountability on public schools, expanding parental choice in the school attended by their child, and placing increased emphasis on reading and math skills.  NCLB has as one of its focal points the improvement of schools and school districts serving students from low-income families.

The theory underlying enactment of NCLB was that improved educational programs would enable students to meet challenging state academic achievement standards and thereby achieve their full potential.  Among other areas, the Act funds programs and resources for disadvantaged students, delinquent and neglected youth in institutions, improving teacher and principal quality, use of technology in schools, and fostering a safe and drug-free learning environment.  One source of controversy is the fact that NCLB allows military recruiters access to the names, addresses, and telephone listings of 11th and 12th grade students if the school provides that information to colleges or employers. 

Stronger Test Standards

More specifically, NCLB requires states to strengthen test standards, to test annually all students in grades 3-8, and to establish annual statewide progress objectives to ensure that all students achieve proficiency within 12 years. There are no Federal standards of achievement; each state is required to set its own standards. Test results and state progress objectives must be stratified based upon poverty, race, ethnicity, disability, and English proficiency to ensure that “no child is left behind.”  Schools and school districts that fail to make “adequate yearly progress” are subject to corrective action and restructuring.  Adequate yearly progress means, for example, that each year a school’s fourth graders score higher on standardized tests than the previous year’s fourth graders.

What if a school underperforms?

Once a school has been identified under NCLB as requiring improvement, corrective action, or restructuring, local school officials must afford its students the opportunity (and transportation, if needed) to attend a better public school within the same school district.  Low-income students attending a “persistently failing school” (i.e., one failing to meet state standards for 3 out of the 4 preceding years) are eligible for funding to obtain supplemental educational services from either public or private schools selected by the student and his parents. 

Under-performing schools are highly incentivized to improve if they wish to avoid further loss of students (and an accompanying loss of funding).  A school that fails to make adequate yearly progress for five consecutive years is subject to reconstitution under a restructuring plan.

Simply stated, NCLB provides states and school districts unprecedented flexibility in their use of federal funds in return for more stringent accountability for increased teacher quality and improved student results.

Improving Reading Ability and Instruction

One of the stated goals of NCLB is that every child be able to read by the end of third grade.  To this end, the Federal government invested in scientifically based reading instruction programs to be implemented in the early grades.  An expected collateral benefit of this initiative is reduced identification of children requiring special education services resulting from a lack of appropriate reading instruction. 

NCLB funds screening and diagnostic assessments to identify K-3 students who are at risk of reading failure, and to better equip K-3 teachers in the essential components of reading instruction.  Funds are also available to support early language, literacy, and pre-reading development of pre-school age children.

In keeping with its major themes of accountability, choice, and flexibility, NCLB also emphasizes the use of practices grounded in scientifically based research to prepare, train, and recruit high-quality teachers.  Once again, local school administrators are afforded significant flexibility in teacher staffing, provided they can demonstrate annual progress in maintaining and enhancing the high-quality of their teachers.

Ensuring Safe School Environments

Finally, in an effort to ensure safe and drug-free schools, NCLB, as proposed, requires states to allow students who attend a persistently dangerous school, or who have been victims of violent crime at school, to transfer to a safe school.  To facilitate characterizing schools as “safe” or “not safe,” NCLB requires public disclosure of school safety statistics on a school-by-school basis.  In addition, school administrators must use federal funding to implement demonstrably effective drug and violence prevention programs.

It is within this overarching educational framework of NCLB that the State of Connecticut oversees and administers its constitutional and statutory obligations to educate your children.

Decision Suggests Educational Support Orders May Not Be Applied Retroactively

A case decided by the Connecticut Appellate Court, suggests Educational Support orders entered pursuant to Connecticut General Statutes § 46b-56c may not be entered retroactively.  In Kleinman v. Chapnick, 131 Conn. App. 812 (2011), the parties had two children who were over the age of eighteen and enrolled as full-time college students.  During the divorce proceedings, the parties’ older daughter was a senior and their younger daughter was a freshman.  In February 2010, after the parties entered into a final agreement on custody and visitation, a two-day trial ensued regarding financial issues.

As part of its decision, the Court ordered the husband to pay 100 percent of the statutory expenses for the education of the parties’ younger daughter beginning with the 2010-2011 school year.  As the Court did not enter an order with respect to the 2009-2010 school year, the wife filed a Motion to Clarify, Correct and/or Reargue.  The Court subsequently heard the wife’s motion, but declined to change its position.

On appeal, the Connecticut Appellate Court found that the husband made voluntary payments for the 2009-2010 school year that exceeded his statutory obligation under Conn. Gen. Stat. § 46b-56c.  More importantly, however, the Court held that Section 46b-56c contains no language authorizing retroactive application, pointing out that various provisions contained within the statute suggest that it is intended to apply prospectively only.  In a footnote, the Court further explained that child support orders cannot be retroactive, and an order for post-majority educational support is in fact an order for child support for college education.

Should you have any questions regarding educational support in the context of divorce proceedings, please feel free to contact Attorney Michael D. DeMeola.  He practices out of the firm’s Westport office and can be reached by telephone at (203) 221-3100 or email at mdemeola@maylaw.com.

Placement in Appropriate Education Programs

Special education students are entitled to a free appropriate public education (otherwise known as “FAPE”), that must be tailored to the individual student. However, schools are not required to provide optimum programming – just “appropriate” programming. One federal judge has likened the difference between optimum and appropriate programming to that between a “Cadillac” and a “serviceable Chevrolet.” See Doe v. Bd. of Ed. of Tullahoma City Schools, 9 F.3d 455, 459-60 (6th Cir. 1993). However, if a particular service is required for the student’s special education needs, as evaluated, then the service must be provided without regard to how much it costs.

Sometimes, public schools simply do not offer the services that your child’s special education needs require. At this point, it may be possible to place your child in an appropriate private school and seek reimbursement from your school district for the associated costs. In order to do this, you must request a due process hearing and prove to an impartial hearing officer that not only does the private school meet your child’s educational needs, but that the school district failed to provide your child with a FAPE in a timely manner. Furthermore, you must comply with relevant statutory and regulatory requirements or your reimbursement award may be denied or reduced.

Significantly, one misstep in this process can mean losing your right to reimbursement – there are time limitations and notice requirements to comply with, and it is important to know all the details before a parent unilaterally places a child privately. Our experienced attorneys will make themselves available to guide and assist you in making a quick and efficient determination of the most effective plan of action for your family, while protecting your rights under applicable regulations.

Special Education Law: Evaluation and Identification

Children identified as having disabilities have different rights from other students. Accordingly, the identification process is a very important step. It begins with a referral sent to the student’s school district – specifically, a written request for an evaluation of whether the child is eligible for, and needs, special education services. This request can be made by the child’s parent, school personnel, or another appropriate person (such as a physician or a social worker).

Once the school district receives a referral, it must convene a planning and placement team (“PPT”) to review the referral, determine whether further evaluation is necessary and, ultimately, decide whether the child requires special education services. If the PPT requests further evaluation of your child, such evaluation will be conducted at the school district’s expense.

Once the PPT has made its determination, you have the right to request an independent educational evaluation (“IEE”) of your child if you disagree with the PPT’s decision. If, after the IEE, you still disagree with the PPT, you may request a hearing in accordance with State Department of Education regulations. Our attorneys will work with your family to determine the best course of action and to protect your child’s educational rights, while ensuring compliance with applicable federal, state and local regulations.

Connecticut School Districts and Bullying: What Can Parents Do?

I was greeted this morning with a very unfortunate email.  The email concerned bullying in Westport, Connecticut Schools and included a heart-wrenching video of an 8th-grade girl claiming to be a victim of bullying in Westport schools. (http://patch.com/A-gcKG) It is just not enough to feel sorry for this victim of bullying, we need to question the effectiveness of the current law and policies in place to avoid the tragic consequences that other towns have dealt with because their students were victims of bullying.

Connecticut General Statute Section 10-222d

I previously blogged about the revisions to Connecticut’s law against bullying in 2008.  Under Connecticut General Statute section 10-222d, the law requires “any overt acts by a student or group of students directed against another student with the intent to ridicule, harass, humiliate or intimidate the other student while on school grounds, at a school sponsored activity or on a school bus, which acts are committed more than once against any student during the school year.” In addition to definitional changes, the statute requires:

  1.  teachers and other staff members who witness acts of bullying to make written notification to school administrators;
  2. prohibits disciplinary actions based solely on the basis of an anonymous report of bullying;
  3. requires prevention strategies as well as interventions strategies;
  4. requires that parents of a student who commits verified acts of bullying or against whom such bullying occurred be notified by each school and be invited to attend at least one meeting;
  5. requires school to annually report the number of verified acts of bullying to the State Department of Education (DOE);
  6. no later than February 1, 2009, boards must submit the bullying policies to the DOE;
  7. no later than July 1, 2009, boards must include their bullying policy in their school district’s publications of rules, procedures and standards of conduct for school and in all of its student handbooks, and
  8.  effective July 1, 2009, boards must now provide in-service training for its teacher and administrators on prevention of bullying.
Westport’s Bullying Policy

Westport responded to the requirements of this statute with a comprehensive bullying policy which can be found on the school district’s website under the tab for parents, and then selecting policies.  Here is the direct link to the policy: (http://www2.westport.k12.ct.us/media/policies/prohibition_against_bullying_5131.911_revised_8.25.2008.pdf)

Armed with Connecticut’s law and Westport’s policy, what should we do as parents, community members, and professionals?  I do not profess to have the answers but at a minimum, we should discuss this with our children, question the school administrators, guidance staff and teachers. Together we should challenge ourselves to make a difference using the channels available to us.  There are ways that we can help to effectuate change before it is too late.

If you know of a child affected by bullying, please act on their behalf.  Not every student will post a video to tell you this is happening. If the school is not addressing the bullying in a meaningful way to eradicate the conduct, legal redress is available and the courts will readily intervene.

If you have any questions please feel free to contact me by telephone in the Firm’s Westport office at (203) 221-3100 or by e-mail at SMaya@Mayalaw.com. Attorney Maya is a partner at Maya Murphy, P.C. Her practice is limited to Education Law and Trusts and Estates.

The Best Divorce Lawyers CT: Divorce Attorneys Fairfield County, Connecticut

Maya Murphy’s Matrimonial Law Group consists of a dedicated team of lawyers committed to representing its clients through the most complex divorce proceedings.  As a significant portion of our Matrimonial Law Group’s client base consists of high net-worth individuals, we have experience dealing with the valuation and division of a variety of assets including businesses, residential and commercial real estate, high-end personal property, trusts, various retirement vehicles, as well as stocks, bonds, and other securities.

Our matrimonial lawyers also counsel the Firm’s clients through the formation and execution of pre-marital agreements and often collaborate with our Trusts & Estates Group regarding issues involving trusts, testamentary instruments, and estate planning.  With attorneys licensed to practice in Connecticut and New York, we routinely handle cases originating in Fairfield County, Westchester County and New York City.

Matrimonial Law Representation

Our Matrimonial Law Group represents clients in dissolution and separation proceedings, custody and child support cases, as well as post-judgment custody and support modifications.  Our matrimonial lawyers handle each and every case professionally and diligently.  Though we aggressively litigate our more acrimonious cases when required, we always take into account the individual and unique needs, position and desires of each client, and recognize the importance of negotiating settlements when appropriate.  Our matrimonial lawyers are well versed in the mediation process as well, and are often retained in a neutral capacity, providing our clients with an alternative to the traditional adversarial divorce model.

Maya Murphy’s Matrimonial Law Group is dedicated to providing its clients with high quality representation, including a thorough knowledge of the law, unsurpassed attention to detail, unwavering client support and constant preparedness.  We understand that our clients are often in the worst situations they will ever personally encounter, and seek, at every turn, to alleviate their fears while protecting and advancing their interests in a court of law.

Our firm provides representation in all trial and appellate courts for matters relating to dissolution of marriage including: legal separation, property division, alimony, child custody, child support, and visitation rights. We are experienced in dealing with the legal, financial, emotional and psychological issues arising in family and matrimonial relationships. Our attorneys have extensive experience representing individuals in matters involving all types of divorce and family law issues.

Maya Murphy’s offices are located in Westport, Connecticut and serves clients in locations including Stamford, Hartford, New Haven, Danbury, Waterbury, Bridgeport, Greenwich, Norwalk, Milford, Stratford, Fairfield County, Hartford County, New Haven County, Litchfield County, Middlesex County, Tolland County, Windham County, and New London County.

To discuss a case please contact Joseph C. Maya at (203) 221-3100 in Connecticut or (212) 682-5700 in New York. Mr. Maya can be reached via e-mail at JMaya@Mayalaw.com.

Physician Adequately Alleges Violation of CUTPA Against His Former Counsel

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

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.

Excessive Geographical Limitation in Connecticut Non-Compete Agreement Found Unenforceable

Timenterial, Inc. v. Dagata, 29 Conn. Supp. 180
Case Background

Timenterial was a company that engaged in the sale and rental of mobile units and had previously employed Mr. James Dagata.  The employment contract contained a non-compete clause wherein Mr. Dagata agreed not to “engage in any business venture having to do with the sale or rental of mobile homes or mobile offices in a fifty miles radius from any existing Timenterial, Inc. sales lot” for one year following the termination of his employment.

Mr. Dagata terminated his employment on June 1, 1970, and Timenterial claimed that he had been active in business ventures involving mobile homes beginning June 12, 1970, at an office located a mere one-quarter mile from Timenterial’s Plainville, CT office.  Timenterial commenced a suit for violation of the non-compete agreement and sought to restrain Mr. Dagata from further mobile home business ventures in accordance with the agreement.

The Court’s Decision

The court found in favor of Mr. Dagata and held that the non-compete agreement was unenforceable because the geographical restriction in the agreement was unreasonable and excessive.  At the time of legal proceedings, Timenterial had seven facilities in Connecticut, four in Massachusetts, two in Vermont, and one in New Hampshire.  The court applied the fifty-mile radius as stipulated in the agreement and held that this territorial prohibition was unreasonable.

The application of the agreement would mean that Mr. Dagata could not be involved in the mobile homes business in all or substantial parts of Connecticut, New York, Massachusetts, Vermont, New Hampshire, and Rhode Island.  This placed excessive restrictions on Mr. Dagata and severely limited the opportunity for him to practice his occupation.  This excessive and burdensome characteristic of the non-compete rendered the agreement unenforceable and the court concluded that Mr. Dagata’s actions did not constitute a breach of the restrictive covenant.

 

If you have any questions relating to your non-compete agreement or would like to discuss any element of your employment agreement, please contact Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

Court Denies Injunction Against Former IBM Executive

By:  Joseph Maya, Esq.

Early in the morning of January 19, 2011, Mr. Visentin notified IBM that he was leaving the company to work for a major competitor- Hewlett-Packard.  Just one day later, he found himself the subject of a lawsuit.  On January 20, 2011, in an effort to enforce the parties’ noncompetition agreement, IBM filed suit against Mr. Visentin, a former executive, in the United States District Court for the Southern District of New York, claiming breach of contract and misappropriation of trade secrets.

Case Background

On January 24, 2011, the Court issued a temporary restraining order, and scheduled the case for a preliminary injunction hearing.  Within five days of providing IBM with notice of his departure, Mr. Visentin was effectively without a job, precluded- at least temporarily- from engaging in his newly secured position.  This case demonstrates not only the force, speed and agility of a large corporation’s legal team, but perhaps more importantly, illustrates the effectiveness of a quickly orchestrated and well-executed legal defense.

Prior to his resignation, Mr. Visentin worked for IBM in various capacities for twenty-six years.  In 2006, he became a Global Vice President in the company’s Integrated Technology Services Group (ITS).  Then, in September, 2007, he became General Manager of the ITS business.  Responsible for providing its clients with various technology services, including services to improve data storage and recovery capabilities, protect networks from viruses, and implement data security systems, this segment generates approximately five thousand to nine thousand deals per quarter, and total revenue of $2.5 billion annually.

In December, 2008, Mr. Visentin was appointed to IBM’s Integration and Value Team, a leadership group that develops IBM’s corporate strategy.  Although there were technical aspects of Mr. Visentin’s various positions, after hearing four days of testimony, the Court found that he was a business manager, not a technical expert.

Non-Compete Agreements

As part of his employment with IBM, Mr. Visentin signed two noncompetition agreements, the first on July 16, 2008 and the second on July 29, 2009.  The July 29th agreement essentially provided that during his employment with IBM, and for 12 months thereafter, he would not directly or indirectly engage in or associate with any competitors of the company.  Mr. Visentin also agreed to a restrictive covenant precluding him from soliciting IBM clients for a period of one year, and IBM employees for a period of two years.

IBM’s first argument was that if Mr. Visentin were allowed to work for HP, IBM would be irreparably harmed because Mr. Visentin’s new position posed the risk that he would inevitably disclose confidential IBM information.  IBM argued that Mr. Visentin possessed a plethora of confidential information including strategic business and marketing plans, “strategic initiative,” new service offerings, acquisition plans, the operational finances of the ITS business, IBM’s competitive business and pricing strategies, the identity of new client targets, the identify of troubled clients, and IBM’s competitive strategies to attack HP.

Court Denies Injunction

In denying IBM’s application for an injunction, the Court first noted that a preliminary injunction is “an extraordinary and drastic remedy which should not be routinely granted.”  Med. Soc’y of State of N.Y. v. Toia, 560 F.2d 535, 538 (2nd Cir. 1977).  Indeed, to obtain a preliminary injunction, the moving party must demonstrate, first, that it will be irreparably harmed if an injunction is not granted, and, second, either a likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation, as well as a balance of the hardships tipping decidedly in its favor.  Lusk v. Vill. Of Cold Spring, 475 F.3d 480, 485 (2nd Cir. 2007).

To show that it will be irreparably harmed, a movant bears the burden of demonstrating that absent an injunction, it will suffer an injury that is neither remote nor speculative, but rather actual and imminent, and one that cannot be redressed through a monetary award. Payment Alliance Int’l, Inc. v. Ferreira, 530 F. Supp. 2d 477, 480 (S.D.N.Y. 2007).

Next, the Court explained that in New York, properly scoped noncompetition agreements are enforceable to protect an employer’s legitimate interests so long as they pose no undue hardship on the employee and do not militate against public policy.  BDO Seidman v. Hirshber, 712 N.E. 2d 1220, 1223 (N.Y. 1999).

The Court further explained that trade secrets and confidential information are considered legitimate interests; however, only that confidential information or those trade secrets that the employee misappropriates or will inevitably disclose are protectable.  Reed, Roberts Assocs., Inc. v. Strauman, 353 N.E. 2d 590, 593 (N.Y. 1976).

Court’s Ruling

In ruling in Mr. Visentin’s favor, the Court noted that his primary job at IBM was to be a general manager, explaining, “[a]lthough trade secrets may have lurked somewhere on the periphery, the real thrust of his position was to manage his teams to make them as efficient as possible.”  The Court relied on Mr. Visentin’s testimony that he had never taken a computer science course and considered himself a generalist.  Mr. Visentin testified, “I am not technical, I don’t know the details of offerings, I’m more of a general manager and I run a business.”

The Court also relied on the testimony of Mr. Visentin’s new manager at HP, who confirmed that Mr. Visentin’s generalist qualities were the driving factor behind his hiring.  Mr. Visentin’s future manager testified that he hired Mr. Visentin because, “he had good general IT services knowledge [and] broad experience,” and that Mr. Visentin struck him, “as a process-oriented thinker, a guy who could sort of connect the dots, if you will, of the overall responsibilities of the job.”  He also testified that Mr. Visentin’s job would not include involvement in technical services, but rather would be to “manage people.”

Court Does Not Find

Although IBM identified numerous types of information potentially in Mr. Visentin’s possession which it argued should be afforded protection, the court noted that much of the information is either applicable to all large corporations, in the public domain, or outdated, and, thus, does not constitute “trade secrets.”

The court also explained that simply showing Mr. Visentin had access to some confidential information does not sufficiently demonstrate irreparable harm.  IBM failed to provide specific examples of confidential or trade secret information that could actually be used to its detriment if Mr. Visentin were allowed to assume his new position at HP.  The Court further held that IBM failed to demonstrate Mr. Visentin’s position at HP would require him to disclose any confidential IBM information he might remember.

Contact Us

Attorney Joseph Maya is a Managing Partner of Maya Murphy, P.C. Litigation Department. He can be reached by telephone in the Firm’s Westport office at (203) 221-3100 or by e-mail at JMaya@Mayalaw.com.