Preview
DOCKET NO. AAN-CV19-6041967-S : SUPERIOR COURT
:
WENDY ROWELY : J.D. OF ANSONIA/MILFORD
:
V. : AT MILFORD
:
KENNETH E. BRYANT, ET AL : OCTOBER 6, 2022
MOTION TO DISMISS
The Defendants respectfully move this court to dismiss the Plaintiff’s case pursuant to
Connecticut General Statutes Section 34-271d(e). This is a derivative proceeding, and the Special
Litigation Committee appointed by the company to investigate the claims filed its Report dated
September 30, 2022 (153.00) determining “that it is in the best interest of the Bryant Family, LLC
that this action be dismissed.” General Statutes Section 34-271d(e) directs that, now that the
Report is on file, “[t]he court shall determine whether the members of the committee were
disinterested individuals and whether the committee conducted its investigation and made its
recommendation in good faith, independently, and with reasonable care[.]” If the Court finds that
these elements are satisfied, “the court shall enforce the determination of the committee.”
Here, the Report demonstrates that the Committee was disinterested, as the Committee was
composed of unbiased outside counsel. The Report further demonstrates that the Committee
reached its recommendation in good faith, after a thorough independent investigation that went
above and beyond the reasonable care standard. The Court should therefore enforce the
Committee’s recommendation and dismiss this action.
1
DEFENDANTS:
KENNETH E. BRYANT AND
BRYANT FAMILY, LLC
By /s/ Steven J. Zakrzewski
Steven J. Zakrzewski
Shelby L. Dattilo
Gordon & Rees Scully Mansukhani
95 Glastonbury Boulevard, Suite 206
Glastonbury, CT 06033
Phone: (860) 494-7511
szakrzewski@grsm.com
sdattilo@grsm.com
2
DOCKET NO. AAN-CV19-6041967-S : SUPERIOR COURT
:
WENDY ROWLEY : J.D. OF ANSONIA/MILFORD
:
V. : AT MILFORD
:
KENNETH E. BRYANT, ET AL : OCTOBER 6, 2022
MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS
The Defendants respectfully move this court to dismiss the Plaintiff’s case pursuant to
Connecticut General Statutes Section 34-271d(e). This is a derivative proceeding, and the Special
Litigation Committee appointed by the company to investigate the claims filed its Report dated
September 30, 2022 (153.00) determining “that it is in the best interest of the Bryant Family, LLC
that this action be dismissed.” General Statutes Section 34-271d(e) directs that, now that the
Report is on file, “[t]he court shall determine whether the members of the committee were
disinterested individuals and whether the committee conducted its investigation and made its
recommendation in good faith, independently, and with reasonable care[.]” If the Court finds that
these elements are satisfied, “the court shall enforce the determination of the committee.”
Here, the Report demonstrates that the Committee was disinterested, as the Committee was
composed of unbiased outside counsel. The Report further demonstrates that the Committee
reached its recommendation in good faith, after a thorough independent investigation that went
above and beyond the reasonable care standard. The Court should therefore enforce the
Committee’s recommendation and dismiss this action.
I. FACTUAL AND PROCEDURAL BACKGROUND: This Is A Derivative Action
Which Was Stayed To Allow An Investigation Pursuant To General Statutes Section
34-271d
This action was commenced by a Complaint dated June 7, 2019, which is titled “Derivative
Complaint as to Ken Bryant,” and which seeks to recover against Defendant Kenneth E. Bryant
1
for damages that he allegedly caused to The Bryant Family, LLC while acting as a Manager of the
company. Paragraph 11 of the Complaint alleges that Mr. Bryant breached his duties to the
company, and Paragraph 12 directly alleges that the damages that he caused were to the company,
and not to Ms. Rowley personally: “As a direct and proximate result of Defendant’s breach of his
fiduciary duties as Manager to the Company, the Company has suffered and will continue to
suffer damages.” (Emphasis added.) The current operative version of the Complaint is the
“Proposed Amended Derivative Complaint” dated November 2, 2021 (144.00), which left intact—
at Paragraph 15—the operative allegations that the damages at issue in this case were suffered by
The Bryant Family, LLC and not Ms. Rowley personally; and which also added The Bryant
Family, LLC as a nominal party to this action.
As set forth in the Special Litigation Committee’s Report (153.00), the Committee was
appointed by a July 2, 2021 resolution of The Bryant Family, LLC, after which the Committee
moved to intervene in this action. That motion was granted by the Court in a remote hearing on
January 25, 2022, during which the Court also entered a three-month stay of the action to permit
the Committee to conduct its investigation. That stay was subsequently extended by three separate
motions (149.00; 150.00; 152.00) through August 31, 2022. The Committee then filed its Report
on September 30, 2022.1
II. LEGAL AUTHORITY: Connecticut General Statutes Section 34-271d(e) Governs
This Case
This case is governed by Connecticut General Statutes Section 34-271d, which sets forth a
series of requirements regarding derivative actions involving limited liability companies. That
statute states that if an LLC is named in a derivative proceeding, the company may appoint a
1
The docket shows the Report as having been filed on October 3, 2022, because it was filed after 5 pm on September
30, 2022.
2
special litigation committee to investigate the claims and determine whether pursuing the action is
in the company’s best interests. Section 34-271d(b) provides that the committee must be
disinterested, and Section 34-271d(d) provides that, after “appropriate investigation,” the
committee may determine that it is in the company’s best interest to: “(1) [c]ontinue under the
control of the plaintiff; (2) continue under the control of the committee; (3) be settled on terms
approved by the committee; or (4) be dismissed.”
Section 34-271d(e) directs that the committee must file a report after its investigation is
complete. That section goes on to direct that the court “shall enforce” the committee’s
recommendation “[i]f the court finds that the members of the committee were disinterested
individuals, and that the committee acted in good faith, independently, and with reasonable care.”
(Emphasis added.)
III. CONCLUSION: This Action Should Be Dismissed Pursuant To General Statutes
Section 34-271d(e)
The Court should enforce the Committee’s recommendation and dismiss this action. The
Report demonstrates that the Committee is disinterested—the Committee is an attorney in good
standing licensed to practice in Connecticut, with no prior relationship with any of the parties to
this case, who has had matters both aligned with and adverse to Plaintiff’s counsel, and has had
matters adverse to Defendants’ counsel as well. The Report further demonstrates that the
Committee acted in good faith, independently, and with reasonable care. In detail, the Report
recounts that the Committee conducted a thorough investigation over the course of several months,
which included interviews with the parties, and review of documents that the parties provided.
The Committee reached its recommendation after all of this work, and after the parties and their
counsel were given ample opportunity to follow up and supplement the information they provided
to the Committee. Now that its investigation is complete, the Committee has recommended that
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“that it is in the best interest of the Bryant Family, LLC that this action be dismissed.”
(Emphasis added.) As the requirements of Section 34-271d have been satisfied, the Defendants
respectfully move this Court to enforce the Committee’s recommendation and dismiss this action.
DEFENDANTS:
KENNETH E. BRYANT AND
BRYANT FAMILY, LLC
By /s/ Steven J. Zakrzewski
Steven J. Zakrzewski
Shelby L. Dattilo
Gordon & Rees Scully Mansukhani
95 Glastonbury Boulevard, Suite 206
Glastonbury, CT 06033
Phone: (860) 494-7511
szakrzewski@grsm.com
sdattilo@grsm.com
4
CERTIFICATION
I certify that a copy of the above was or will immediately be mailed or delivered
electronically or non-electronically on October 6, 2022 to all counsel and self-represented parties
of record and that written consent for electronic delivery was received from all counsel and
self-represented parties or record who were or will immediately be electronically served:
Edward N. Lerner, Esq.
Lerner & Guarino, LLC
8 Wright Street, 2nd Floor
Westport, CT 06880
Telephone: (203) 817-0850
enlerner@lernerandguarino.com
Peter M. Nolin
Carmody Torrance Sandak & Hennessey LLP
707 Summer Street, Suite 300
Stamford, CT 06901
pnolin@carmodylaw.com
/s/ Steven J. Zakrzewski
Steven J. Zakrzewski
Preview
DOCKET NO. AAN-CV19-6041967-S : SUPERIOR COURT : WENDY ROWELY : J.D. OF ANSONIA/MILFORD : V. : AT MILFORD : KENNETH E. BRYANT, ET AL : OCTOBER 6, 2022 MOTION TO DISMISS The Defendants respectfully move this court to dismiss the Plaintiff’s case pursuant to Connecticut General Statutes Section 34-271d(e). This is a derivative proceeding, and the Special Litigation Committee appointed by the company to investigate the claims filed its Report dated September 30, 2022 (153.00) determining “that it is in the best interest of the Bryant Family, LLC that this action be dismissed.” General Statutes Section 34-271d(e) directs that, now that the Report is on file, “[t]he court shall determine whether the members of the committee were disinterested individuals and whether the committee conducted its investigation and made its recommendation in good faith, independently, and with reasonable care[.]” If the Court finds that these elements are satisfied, “the court shall enforce the determination of the committee.” Here, the Report demonstrates that the Committee was disinterested, as the Committee was composed of unbiased outside counsel. The Report further demonstrates that the Committee reached its recommendation in good faith, after a thorough independent investigation that went above and beyond the reasonable care standard. The Court should therefore enforce the Committee’s recommendation and dismiss this action. 1 DEFENDANTS: KENNETH E. BRYANT AND BRYANT FAMILY, LLC By /s/ Steven J. Zakrzewski Steven J. Zakrzewski Shelby L. Dattilo Gordon & Rees Scully Mansukhani 95 Glastonbury Boulevard, Suite 206 Glastonbury, CT 06033 Phone: (860) 494-7511 szakrzewski@grsm.com sdattilo@grsm.com 2 DOCKET NO. AAN-CV19-6041967-S : SUPERIOR COURT : WENDY ROWLEY : J.D. OF ANSONIA/MILFORD : V. : AT MILFORD : KENNETH E. BRYANT, ET AL : OCTOBER 6, 2022 MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS The Defendants respectfully move this court to dismiss the Plaintiff’s case pursuant to Connecticut General Statutes Section 34-271d(e). This is a derivative proceeding, and the Special Litigation Committee appointed by the company to investigate the claims filed its Report dated September 30, 2022 (153.00) determining “that it is in the best interest of the Bryant Family, LLC that this action be dismissed.” General Statutes Section 34-271d(e) directs that, now that the Report is on file, “[t]he court shall determine whether the members of the committee were disinterested individuals and whether the committee conducted its investigation and made its recommendation in good faith, independently, and with reasonable care[.]” If the Court finds that these elements are satisfied, “the court shall enforce the determination of the committee.” Here, the Report demonstrates that the Committee was disinterested, as the Committee was composed of unbiased outside counsel. The Report further demonstrates that the Committee reached its recommendation in good faith, after a thorough independent investigation that went above and beyond the reasonable care standard. The Court should therefore enforce the Committee’s recommendation and dismiss this action. I. FACTUAL AND PROCEDURAL BACKGROUND: This Is A Derivative Action Which Was Stayed To Allow An Investigation Pursuant To General Statutes Section 34-271d This action was commenced by a Complaint dated June 7, 2019, which is titled “Derivative Complaint as to Ken Bryant,” and which seeks to recover against Defendant Kenneth E. Bryant 1 for damages that he allegedly caused to The Bryant Family, LLC while acting as a Manager of the company. Paragraph 11 of the Complaint alleges that Mr. Bryant breached his duties to the company, and Paragraph 12 directly alleges that the damages that he caused were to the company, and not to Ms. Rowley personally: “As a direct and proximate result of Defendant’s breach of his fiduciary duties as Manager to the Company, the Company has suffered and will continue to suffer damages.” (Emphasis added.) The current operative version of the Complaint is the “Proposed Amended Derivative Complaint” dated November 2, 2021 (144.00), which left intact— at Paragraph 15—the operative allegations that the damages at issue in this case were suffered by The Bryant Family, LLC and not Ms. Rowley personally; and which also added The Bryant Family, LLC as a nominal party to this action. As set forth in the Special Litigation Committee’s Report (153.00), the Committee was appointed by a July 2, 2021 resolution of The Bryant Family, LLC, after which the Committee moved to intervene in this action. That motion was granted by the Court in a remote hearing on January 25, 2022, during which the Court also entered a three-month stay of the action to permit the Committee to conduct its investigation. That stay was subsequently extended by three separate motions (149.00; 150.00; 152.00) through August 31, 2022. The Committee then filed its Report on September 30, 2022.1 II. LEGAL AUTHORITY: Connecticut General Statutes Section 34-271d(e) Governs This Case This case is governed by Connecticut General Statutes Section 34-271d, which sets forth a series of requirements regarding derivative actions involving limited liability companies. That statute states that if an LLC is named in a derivative proceeding, the company may appoint a 1 The docket shows the Report as having been filed on October 3, 2022, because it was filed after 5 pm on September 30, 2022. 2 special litigation committee to investigate the claims and determine whether pursuing the action is in the company’s best interests. Section 34-271d(b) provides that the committee must be disinterested, and Section 34-271d(d) provides that, after “appropriate investigation,” the committee may determine that it is in the company’s best interest to: “(1) [c]ontinue under the control of the plaintiff; (2) continue under the control of the committee; (3) be settled on terms approved by the committee; or (4) be dismissed.” Section 34-271d(e) directs that the committee must file a report after its investigation is complete. That section goes on to direct that the court “shall enforce” the committee’s recommendation “[i]f the court finds that the members of the committee were disinterested individuals, and that the committee acted in good faith, independently, and with reasonable care.” (Emphasis added.) III. CONCLUSION: This Action Should Be Dismissed Pursuant To General Statutes Section 34-271d(e) The Court should enforce the Committee’s recommendation and dismiss this action. The Report demonstrates that the Committee is disinterested—the Committee is an attorney in good standing licensed to practice in Connecticut, with no prior relationship with any of the parties to this case, who has had matters both aligned with and adverse to Plaintiff’s counsel, and has had matters adverse to Defendants’ counsel as well. The Report further demonstrates that the Committee acted in good faith, independently, and with reasonable care. In detail, the Report recounts that the Committee conducted a thorough investigation over the course of several months, which included interviews with the parties, and review of documents that the parties provided. The Committee reached its recommendation after all of this work, and after the parties and their counsel were given ample opportunity to follow up and supplement the information they provided to the Committee. Now that its investigation is complete, the Committee has recommended that 3 “that it is in the best interest of the Bryant Family, LLC that this action be dismissed.” (Emphasis added.) As the requirements of Section 34-271d have been satisfied, the Defendants respectfully move this Court to enforce the Committee’s recommendation and dismiss this action. DEFENDANTS: KENNETH E. BRYANT AND BRYANT FAMILY, LLC By /s/ Steven J. Zakrzewski Steven J. Zakrzewski Shelby L. Dattilo Gordon & Rees Scully Mansukhani 95 Glastonbury Boulevard, Suite 206 Glastonbury, CT 06033 Phone: (860) 494-7511 szakrzewski@grsm.com sdattilo@grsm.com 4 CERTIFICATION I certify that a copy of the above was or will immediately be mailed or delivered electronically or non-electronically on October 6, 2022 to all counsel and self-represented parties of record and that written consent for electronic delivery was received from all counsel and self-represented parties or record who were or will immediately be electronically served: Edward N. Lerner, Esq. Lerner & Guarino, LLC 8 Wright Street, 2nd Floor Westport, CT 06880 Telephone: (203) 817-0850 enlerner@lernerandguarino.com Peter M. Nolin Carmody Torrance Sandak & Hennessey LLP 707 Summer Street, Suite 300 Stamford, CT 06901 pnolin@carmodylaw.com /s/ Steven J. Zakrzewski Steven J. Zakrzewski