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DOCKET NO.: WWM-CV-21-6022016-S SUPERIOR COURT
TRONHORSE AUTO, LLC d/b/a
CENTRAL HYUNDAI J.D. OF WINDHAM
vs. AT PUTNAM
BRENT MATTSON JUNE 6, 2023
PLAINTIFF’S OBJECTION TO DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT
Pursuant to Practice Book § 17-45 er seq., the Plaintiff, Ironhorse Auto, LLC d/b/a
Central Hyundai, hereby files this Objection to the motion for summary judgment filed by the
Defendant, Brent Mattson, on March 6, 2023 as to Counts Four, Five, Six, and Eight of the
Revised Complaint. The Plaintiff does not object to entry of summary judgment as to Counts
One, Six, and Nine.
RELEVANT FACTS
The Plaintiff, Ironhorse Auto, LLC d/b/a Central Hyundai (“Central Hyundai” or the
“Plaintiff’), is a limited liability company with a principal place of business in Plainfield.
Affidavit of David Cartwright (“Cartwright Aff.”) 45. The Plaintiff is a full-service Hyundai
automobile dealer. Jd.
Defendant, Brent Mattson, is an individual who resides at 40 Mile Road, Coventry,
Rhode Island. Jd. | 6. WHL LLC d/b/a Wile Hyundai, is a Connecticut Hyundai dealer with a
principal place of business in Columbia, Connecticut (“Wile Hyundai”). Id. | 7. Wile Hyundai is
located approximately 20 miles from the Plaintiff and is the Plaintiff's direct competitor with
respect to the sale and service of Hyundai brand motor vehicles. Id.
Hyundai Motor America (“HMA”) is the United States seller of Hyundai vehicles, with a
business address in California. Jd. { 8. HMA is a wholly owned subsidiary of Hyundai Motor
Company. /d. HMA makes and distributes Hyundai vehicles for the United States market. /d.
In or about August of 2019, the Plaintiff hired Mattson as its Service Manager. Id. 4 9.
As the Service Manager, Mattson had limited access to the Plaintiff's computerized Dealer
Management System (the “DMS”). Jd. The DMS contains all of the Plaintiff's proprietary and
confidential business information, including detailed customer information, employee
information, details about the dealership’s new and used car inventories, as well as its parts
inventory, service transactions, and its finances. Id. J 10.
On or about March 9, 2021, Mattson resigned from Central Hyundai. Jd. ¥ 11;
Deposition of Brent Mattson (“Mattson Depo.”) at 97. Immediately after Mattson’s resignation
was final, the Plaintiff deleted his rights to access Central Hyundai’s DMS, and Mattson’s
company email access was also deleted. Cartwright Aff. 11.
The next day, Mattson joined Wile Hyundai as its Service Manager. Jd. { 12; Mattson
Depo. at 97. However, on March 12, 2021, Mattson improperly obtained system administrator
access to Central Hyundai’s DMS System, without the Plaintiff's permission. Cartwright Aff.
q 13.
The protocol at Hyundai Motor America was that Mattson should have been referred to
the current system administrator at Central Hyundai for the system administrator to contact
HMA to obtain any rights to access Central Hyundai’s DMS. Jd. ¥ 18. However, HMA violated
its own protocol and granted Mattson rights into Central Hyundai’s DMS as an Administrator,
thereby giving Mattson full, complete and total access to Central Hyundai’s confidential and
proprietary business information, including its financial information, employee data base, sales
customer data base, service customer data base, inventory, and all other aspects of Central
Hyundai’s dealership. Id. 4 15.
Mattson maintained full access to his administrator status over Central Hyundai’s DMS
system from the time that he entered the system on March 12, 2021 until April 2, 2021, when
Central Hyundai was made aware of the breach and Mattson’s access was shut down by HMA at
Central Hyundai’s request. Id. J] 22-24. During this time period, Mattson had full access to the
Plaintiff's DMS system after he left the Plaintiff's employment. Jd. { 22. Mattson took several
affirmative actions on the DMS system during this time, including (1) account set up; and
(2) changing the job code. Jd. 423. During his deposition, Mattson admitted that after March
12, 2021, he had improper access to the Plaintiff's DMS system, and reviewed training
information from employees of Central Hyundai. Mattson Depo. at 125-28.
Ellen Jones, the Plaintiff's System Administrator, spoke with HMA by telephone on
April 2, 2021. Affidavit of Ellen Jones (“Jones Aff.”) § 13. During this call, Jones learned for
the first time that Mattson had access to the system administrator level in Central Hyundai’s
DMS. Jd. Jones immediately asked HMA to shut down Mattson’s access, and HMA did so. Id.
Jones immediately told Mr. Cartwright about the breach of security. Id.
RELEVANT PROCEDURAL HISTORY
On or about May 27, 2021, the Plaintiff filed its initial Complaint against Mattson. On
September 26, 2021, the Plaintiff filed a Revised Complaint which alleged nine counts,
including: violation of General Statutes §§ 53-451 and 53-452 (Count One); conversion (Count
Two); statutory theft (Count Three); breach of fiduciary duty (Count Four); breach of the duty of
loyalty (Count Five); tortious interference with business relationships (Count Six); violation of
the Connecticut Unfair Trade Practices Act (Count Eight); and unjust enrichment (Count Nine).
The Defendant moved to strike counts two, three, four, and five of the Plaintiff's
Complaint. On January 18, 2022, the trial court (Fischer, J.), granted the Plaintiffs motion to
strike counts two and three, and denied the Plaintiff's motion to strike counts four and five. Doc
No. 109.10. With regard to its decision to deny the Defendant’s motion to strike counts four and
five, the trial court reasoned:
As to Counts 4 and 5, the defendant, relying on Essex Insurance Co. y. William
Kramer & Assocs., 331 Conn. 493 (2019) argues that they must be struck because
his duty of loyalty and fiduciary duty ended when he left the plaintiff's
employment. The plaintiff counters that even after leaving employment there
remains a duty not to use confidential information that an employee has acquired
during his employment, citing Elm City Cheese Co. v. Frederico, 251 Conn. 59
(1999).
Under the allegations here, at the very least, the defendant used information
previously acquired while employed by the plaintiff in order to enter and access
the confidential records of the plaintiff. Accordingly, the plaintiff's objections to
the motion to strike counts 4 and 5 are sustained.
See Doc. No. 109.10. In other words, this Court held that, as a matter of law, even after leaving
his employment with the Plaintiff, the Defendant still had a duty not to use confidential
information that he had acquired during his employment with the Plaintiff. See id.
STANDARD OF REVIEW
Pursuant to Practice Book § 17-49, summary judgment shall enter only if “the pleadings,
affidavits, and any other proof submitted show that there is no genuine issue as to any material
fact, and that the moving party is entitled to judgment as a matter of law.” “In deciding a motion
for summary judgment, the trial court must view the evidence in the light most favorable to the
nonmoving party.” Dunn v. Northeast Helicopters Flight Servs., LLC, 346 Conn. 360, 369-70
(2023). Additionally, “the court must view the inferences to be drawn from the facts in the light
most favorable to the party opposing the motion.” Walker v. Dep’t of Children & Families, 146
Conn. App. 863, 871 (2013); see Das v. Pratt & Whitney, HHD-CV-16-6070095-S, 2018 WL
4373841, at *3 (Conn. Super. Aug. 27, 2018).
“The party seeking summary judgment has the burden of showing the absence of any
genuine issue of material facts which, under applicable principles of substantive law, entitle him
to a judgment as a matter of law, and the party opposing such a motion must provide an
evidentiary foundation to demonstrate the existence of material fact. A material fact is a fact
which will make a difference in the result of the case.” Romprey v. Safeco Ins. Co. of Am., 310
Conn. 304, 312-13 (2013). The courts hold the moving party to a “strict standard”:
The courts are in entire agreement that the moving party for summary
judgment has the burden of showing the absence of any genuine issue as to
all the material facts, which, under applicable principles of substantive law,
entitle him to a judgment as a matter of law. The courts hold the movant to a
strict standard.
Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11 (2008) (emphasis added). In
other words, “to satisfy his burden, the movant must make a showing that it is quite clear
what the truth is, and that excludes any real doubt as to the existence of any genuine issue
of material fact.” Dougherty v. Graham, 161 Conn. 248, 250 (1971) (emphasis added).
“When documents submitted in support of a motion for summary judgment fail to
establish that there is no genuine issue of material fact, the nonmoving party has no obligation
to submit documents establishing the existence of such an issue. Once the moving party has
met its burden, however, the nonmoving party must present evidence that demonstrates the
existence of some disputed factual issue.” Lucenti v. Laviero, 327 Conn. 764, 773 (2018).
DISCUSSION
I MATTSON IMPROPERLY OBTAINED ACCESS TO THE PLAINTIFF’S DMS
SYSTEM AFTER HE RESIGNED FROM ITS EMPLOYMENT
The Defendant’s motion for summary judgment first argues that summary judgment
should be entered in his favor because his “sworn testimony at his deposition establishes that the
allegations against him have no basis.” Memorandum in Support of MSJ (“Memo.”) at 14.
Specifically, Mattson argues that he “never was given administrator access to Central Hyundai’s
DMS, he does not know how to obtain such access, and the Complaint is not truthful.” Jd. at 14-
15.
However, the Defendant is incorrect. Indeed, the Plaintiff has produced substantial
evidence to show that Mattson improperly obtained access to the Plaintiffs DMS after he left the
Plaintiff's employment, without permission. See Romprey, 310 Conn, at 312-13. For instance,
the Affidavit of David Cartwright states that Mattson resigned from Central Hyundai on March
9, 2021. D. Cartwright Aff. 411. Immediately after Mattson’s resignation was final, the
Plaintiff deleted his rights to Access Central Hyundai’s DMS, and Mattson’s email access was
also deleted. Id.
The next day, Mattson joined Wile Hyundai as its Service Manager. Id. § 12. On March
12, 2021, while working at Wile Hyundai, Mattson improperly obtained administrator access to
Central Hyundai’s DMS. Jd. 13. Mattson maintained full access to his administrator status
without permission from the Plaintiff from the time he improperly entered the system on March
12, 2021 until April 2, 2021, when Central Hyundai became aware of the breach and Mattson’s
access was shut down. Jd. ¥ 14; Jones Aff. §§ 13-15.
In addition, the Cartwright Affidavit includes contemporaneous emails he wrote to
Hyundai Motor America after he learned that Mattson had improperly gained access to the
Plaintiff's DMS. Id. §§ 16-19, Exh. A. The Cartwright Affidavit also includes the DMS
Account History for Mattson (“Account History”), which demonstrates that Mattson re-activated
his DMS account on March 12, 2021, after he left the Plaintiff's employment. Jd. {4 20-24, Exh.
B. The Account History further reflects that Mattson took several other actions on the DMS
account after March 12, 2021, including (1) account set up; and (2) changing the job code. Jd.
{| 23. The Account History also reflects that Central Hyundai did not terminate Mattson’s access
to the DMS until it became aware of the breach on April 2, 2021. Id. § 24.
Moreover, in his deposition, Mattson admitted that he had improper access to the
Plaintiff's DMS system after March 12, 2021. Mattson Depo. at 125-28. Specifically, he
testified, under oath:
Q Why would you have sent him a text . . . to the effect of I see you are not
up to speed in training?
A At one point I was able to see the training levels for previous
employees that were under me, whether it was Central Hyundai or if
it was Wile Hyundai. And at that point, I sent an email to Mr. Cleary
regarding that, and he said he would talk to Tim Longton to address
that.
What do you mean you would—when was this?
The exact date, I don’t remember.
Was this before or after you left Central Hyundai?
This was after.
How did you get to see?
That, I don’t know. [...]
When you say you could see training, where were you secing it?
In the Hyundai learning portal.
And the Hyundai learning portal is part of what program?
Hyundai dealer.com. It has its own website. You get to it through its
website.
Are you saying it is part of Hyundai dealer.com?
Uh-huh. Yes.
And that you had access to training histories from Central Hyundai
employees?
It would show me past and present employees that worked under me
whether or not they had taken a class.
Id. at 125-26 (emphasis added). Earlier in his deposition, Mattson clarified that “Hyundai
dealer.com” is Hyundai’s dealer management system. Jd. at 59. Thus, Mattson admitted that he
had improper access to Central Hyundai’s DMS after he was no longer employed by Central
Hyundai. See id.
In sum, the Plaintiff has submitted admissible evidence to show that Mattson wrongfully
obtained access to the Plaintiff's DMS system after he left the Plaintiff's employment on March
12, 2021, and that he wrongfully maintained access to the DMS system until April 2, 2021. For
this reason alone, this Court should deny the Defendant’s motion for summary judgment. See
Hurlburt v. City of New Haven, No. CV-166061635-S, 2018 WL 3711314, at *3-4 (Conn. Super.
Jul. 3, 2018) (denying motion for summary judgment where evidence submitted by the plaintiff
“demonstrates the existence of genuine issues of material fact.”); Papa v. Schroeder, No. CV-
146052720-S, 2016 WL 1265707, at *5 (Conn. Super. Mar. 1, 2016) (on a motion for summary
judgment, “if the parties present conflicting evidence, it should be submitted to the fact
finder.”)
Il. THE PLAINTIFF CAN PROVE ITS DAMAGES WITH REASONABLE
CERTAINTY
Next, the Defendant contends that the Plaintiff cannot prove its damages with reasonable
certainty. Memo at 15-16. In particular, the Defendant argues that the Plaintiff's damages
calculation is “built on sheer speculation” because “there is no evidence of any claim against
Mattson that would support” an award of lost profits. Jd. at 15. Once again, the Defendant is
wrong. The Plaintiff has produced sufficient evidence to prove its damages arising from its lost
profits with reasonable certainty.
A. The PlaintiffCan Prove Its Damages Arising From Lost Profits With
Reasonable Certainty.
“In deciding whether damages properly have been awarded, we are guided by the well-
established principle that such damages must be proved with reasonable certainty. Although we
recognize that damages for lost profits may be difficult to prove with exactitude, such damages
are recoverable only to the extent that the evidence affords a sufficient basis for estimating their
amount with reasonable certainty. Consequently, we have permitted lost profits to be
calculated by extrapolating from past profits.” Cheryl Terry Enters., Ltd. v. City of Hartford,
270 Conn. 619, 639 (2004) (emphasis added). “This court and courts of other jurisdictions have
looked to a number of factors in evaluating whether the plaintiff has proved damages with
reasonable certainty. A plaintiff's prior experience in the same business has been held to be
probative, as has a plaintiff's experience in the same enterprise subsequent to the
interference.” Jd. at 639-40 (emphasis added).
In addition, “a damage theory may be based on assumptions so long as the
assumptions are reasonable in light of the record evidence. The reasonableness of the
assumptions underlying the plaintiff's damage theory is determined by the trier of fact. Federal
appellate courts have refused to find damage evidence insufficient unless there was no basis
for critical assumptions made by the trier of fact.” Jd. at 640 (emphasis added); see Westport
Taxi Serv., Inc. v. Westport Transit Dist., 235 Conn. 1, 28 (1995).
“Where damages are appropriate but difficult to prove the law eschews the necessity of
mathematical exactitude. Such exactitude in the proof of damages is often impossible, and all
that can be required is that the evidence, with such certainty as the nature of the particular case
may permit, lay a foundation which will enable the trier to make a fair and reasonable estimate.”
Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 285 (1994); see
Johnson v. NEHDS Logistics, LLC, DBD-CV-17-6022465-S, 2018 WL 7893359, at #3 (Conn.
Super. Dec. 20, 2018) (denying motion for partial summary judgment on damages where
plaintiff's claim for damages meets standard of reasonable certainty).
Moreover, our Supreme Court has recognized that where, as in this case, an employee has
secretly breached his fiduciary duty to his employer, evidence of damages is likely to be solely in
the possession of the employee, and therefore, it may be difficult for the employer to discover
such evidence. See Wall Sys., Inc. v. Pompa, 324 Conn. 718, 734 (2017) (ina claim for breach
of the duty of loyalty by an employee, “forfeiture may be the only available remedy when it is
difficult to prove that harm to the employer resulted from the employee’s breach or when the
employee realizes no profit from the breach.”); Hosp. Media Network, LLC v. Henderson, FST-
CV-136020559-S, 2020 WL 1921996, at *10 (Conn. Super. Feb. 25, 2020) (in a claim for breach
of the duty of loyalty by an employee, “the extent to which the defendant was affirmatively
disloyal or engaged in self-dealing, the extent to which he took and misused proprietary or
confidential information, the extent to which he may have usurped corporate opportunities . . . all
would require access to materials in the possession or control of the defendant.”)
The case of Message Center Management, Inc. v. Shell Oil Products Co., 85 Conn. App.
401, 421 (2004), is instructive. There, the parties executed three contracts—two regional
contracts and one national contract—in which the plaintiff agreed to market the defendant’s
properties as possible locations for wireless communications carriers. See Message Center
Management, Inc., 85 Conn. App. at 404-05. Two years later, the defendant terminated the
national contract, and the plaintiff sued for lost profits arising from a breach of that contract. Id.
at 405. At trial, the plaintiff's expert witness estimated that the plaintiff would have secured 38
contracts for the defendant under the national agreement, based solely upon the number of
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contracts it secured for the defendant under the two regional agreements. /d. The jury found for
the plaintiff
on its breach of contract claim, and awarded damages in the amount of $1,351,836.
Id. at 407. However, the trial court granted the defendant’s motion for judgment notwithstanding
the verdict, vacated the damages award, and entered judgment for the plaintiff for $1.00. Id.
The court reasoned that the plaintiff did not produce sufficient evidence to prove damages to a
reasonable certainty. Id.
On appeal, the Appellate Court reversed the trial court’s decision, holding that the
plaintiff proved its damages with reasonable certainty. Jd. at 423-24. The court noted that the
plaintiff's damages evidence rested upon “the key assumption . . . that the plaintiff's success in
securing contracts under the [regional] agreements was a valid indicator as to anticipated success
under the national agreement.” /d. at 424-25. The court held that the jury’s award of damages
was reasonable in light of the record evidence, noting that “damages related to lost profits
cannot be calculated with mathematical certainty. Mathematical exactitude in proof often
is impossible. Doubts as to exact amounts generally are resolved against the party in
breach.” /d. at 421 (emphasis added).
Here, as in Message Center Management, the Plaintiff in this case has produced
sufficient evidence to establish its damages to a reasonable certainty. See id. The admissible
evidence reflects that before Mattson resigned as an employee of the Plaintiff, A&B
Transportation was a frequent and reliable customer of the Plaintiff. Cartwright Aff. | 36. For
example, between September 2017 and February 2020, A&B Transportation purchased six
vehicles from the Plaintiff, with a total gross profit of approximately $126,000.00. /d. 429. In
his affidavit, David Cartwright, the owner of the Plaintiff, states that the Plaintiff's gross profit
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percentage is 36%. Id. 430. Thus, the Plaintiff realized net profits of more than $45,000.00
from these six sales. /d.
In addition, from 2017 through February 2020, the Plaintiff frequently provided parts and
service for A&B Transportation’s vehicles, which amounted to gross profit of $4,274.00. Id.
Thus, the Plaintiff realized a total of $49,274.00 in net profit from A&B Transportation during
this same time period. Jd. The Plaintiff calculates that it would have realized at least the same
amount of net profits from A&B Transportation over the next three years but for Mattson’s
interference. Id. 4 32; see Cheryl Terry Enters., Ltd., 270 Comn. at 639 (“we have permitted lost
profits to be calculated by extrapolating from past profits.”)
The Defendant argues that A&B Transportation is not a “lost customer” because it
continued to do some business with the Plaintiff after Mattson resigned. Memo. at 16. However,
it is undisputed that since Mattson’s resignation, A&B Transportation has dramatically reduced
the amount of business that it does with the Plaintiff. Cartwright Aff. | 36. In addition, A&B
Transportation only continues to bring its vehicles to the Plaintiff for service where such vehicles
are under warranty with the Plaintiff, and those service visits are covered by Hyundai under
warranty work. /d. { 34. In other words, after Mattson’s departure from the Plaintiff, the
Plaintiff has lost A&B Transportation’s paid service visits, and it has only performed warranty
service on A&B Transportation’s vehicles. See id.
The Defendant also points out that A&B Transportation has purchased two vehicles
from the Plaintiff after Mattson’s departure. Memo. at 17; Brown Aff. 4 6. However, it is
undisputed that A&B Transportation purchased more vehicles from the Plaintiff before Mattson
resigned his position. Cartwright Aff. { 29. In addition, the only reason why A&B
Transportation purchased these two vehicles from the Plaintiff is because A&B Transportation
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uses only black on black Hyundai Accents and Elantras in its fleet. Jd. 936. A&B
Transportation only purchased those vehicles from the Plaintiff because the Plaintiff had the
needed black on black vehicles in inventory when A&B Transportation required such vehicles,
and the Plaintiff was not their first choice to make such purchases. Jd.
The Defendant also argues that the Plaintiff's calculation of loss is somehow deficient
because it is based upon lost profits from a single customer. Memo. at 16. However, our
Appellate Courts have routinely held that a damages calculation is made with reasonable
certainty in cases where, as in this case, it is based upon the demand from a single customer.
See, e.g., Message Ctr. Mgmt., Inc., 85 Conn. App. at 424-25 (plaintiff's damages calculation of
lost profits was made with reasonable certainty where it was based solely upon a business
relationship with one customer).
Similarly, the Defendant argues that the Plaintiff cannot “presume that it will retain the
undivided loyalty of any given service customer for a period of years.” Memo. at 16. However,
“a plaintiff's prior experience in the same business has been held to be probative, as has a
plaintiffs experience in the same enterprise subsequent to the interference.” Cheryl Terry
Enters., Ltd., 270 Conn. at 639-40. In addition, our courts have repeatedly held that “a damages
theory may be based upon assumptions as long as those assumptions are reasonable in light of
the record evidence. The reasonableness of those assumptions is to be determined by the trier
of fact.” Message Ctr. Mgmt., Inc., 85 Conn. App. at 424. In other words, the question of
whether the assumptions made by the Plaintiff are reasonable should be made by the “trier of
fact” after a full trial on the merits—not by this Court on a motion for summary judgment. See
id.
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Moreover, the Defendant argues that “the Plaintiff has failed to meet the evidentiary
burden, specific to claims of lost profit, articulated by our Supreme Court in American Diamond
Exchange, Inc. v. Alpert, 302 Conn. 494 (2011).” Memo. at 17. Once again, however, the
Defendant is incorrect. In Alpert, the Court held that the plaintiff, a jewelry merchant, failed to
prove its claim for lost profits with reasonable certainty where the plaintiff's president testified
that its markup on estate jewelry sales was “at a minimum, 100% every time on items that cost
less than $50,000 to acquire.” Am. Diamond Exch., Inc., 302 Conn. at 511. The Court reasoned
that “no documentary evidence was offered to support this claim,” and there was no
testimony to the effect that such data were not available. Jd. at 511-12 (emphasis added). The
Court explained that, “at a minimum, opinions or estimates of lost profits must be based on
objective facts, figures, or data from which the amount of lost profits may be ascertained.”
Id. at 512 (emphasis added).
Here, by contrast, the Plaintiff has produced “objective facts, figures, or data from which
the amount of lost profits may be ascertained.” See id. Specifically, the Plaintiff has produced
the objective evidence of its profits from business with A&B Transportation from 2017 through
early 2020. Cartwright Aff. {{] 28-32. The Defendant does not even attempt to argue that these
figures are inaccurate. See id. Our Supreme Court has repeatedly held that lost profits may be
calculated “by extrapolating from past profits.” Cheryl Terry Enters., Ltd., 270 Conn. at 639.
In addition, “a plaintiffs prior experience in the same business has been held to be probative, as
has a plaintiffs experience in the same enterprise subsequent to the interference.” Jd. at 639-
40. Thus, unlike the plaintiff in Alpert, the Plaintiff in this case has produced sufficient
evidence of its past profits to make a reasonable assumption regarding the profits it would have
received from A&B Transportation but for the Defendant’s interference. See id. at 640 (“a
14
damage theory may be based on assumptions as long as the assumptions are reasonable in light
of the record evidence.”)
Moreover, the Court in Alpert found that there were additional problems with the
plaintiff's damages calculation: “even if the evidence had permitted the fact finder to determine
the plaintiff's profit margins with reasonable certainty, there still was no way to calculate what
the plaintiffs profit margins would have been on the diverted sales with anything approaching
reasonable certainty because, with very few exceptions, Alpert was unable to recall what he paid
to acquire a piece of diverted jewelry or what he later sold it for. The plaintiff, moreover, made
no efforts to obtain this information.” Id. at 513 (italics added). Here, by contrast, the Plaintiff
has produced all such information, and the Defendant does not even attempt to argue that the
Plaintiff's proof of damages contains similar defects. See id.
Furthermore, Alpert was decided after a full trial on the merits, in which the plaintiff had
the burden to prove its damages by a preponderance of the evidence. Here, by contrast, in this
motion for summary judgment, the Defendant, as the moving party, has the burden to
demonstrate the absence of any genuine issue of material fact. See Romprey, 310 Conn. at 312-
13. In addition, in deciding this motion for summary judgment, this Court “must view the
evidence in the light most favorable to the nonmoving party,” and “must view the inferences to
be drawn from the facts in the light most favorable to the party opposing the motion.” See Das,
2018 WL 4373841, at *3. In this case, when viewing the evidence of damages in the light most
favorable to the Plaintiff, and taking all inferences to be drawn from the facts in favor of the
Plaintiff, this Court should conclude that the Plaintiff has calculated its lost profits to a
reasonable certainty. See id.; Message Ctr. Mgmt., Inc., 85 Conn. App. at 424-25.
15
B. The Plaintiff Can Prove An Ascertainable Loss Under CUTPA.
Count Nine of the Plaintiff's Complaint states a claim under CUTPA. “We begin our
analysis with the principle that CUTPA is remedial in character, and must be liberally construed
in favor of those whom the legislature intended to benefit.” Serv. Road Corp. v. Quinn, 241
Conn. 630, 637 (1997). “CUTPA was designed to provide protection to businesses as well as to
consumers. CUTPA is not limited to conduct involving consumer injury. A competitor or other
business person can maintain a CUTPA cause of action without showing consumer injury.” Id.
“To be entitled to any relief under CUTPA, a plaintiff must first prove that he has
suffered an ascertainable loss due to a CUTPA violation. CUTPA, however, is not limited to
providing redress only for consumers who can put a precise dollars and cents figure on
their loss.” Gombos v. Wogchowski, No. CV-205047911-S, 2021 WL 6334963, at *4 (Conn.
Super. Dec. 20, 2021) (emphasis added). Our Supreme Court has held that an ascertainable loss
under CUTPA “is a deprivation, detriment, or injury that is capable of being discovered,
observed, or established. A loss is ascertainable if it is measurable even though the precise
amount of the loss is not known, Under CUTPA, there is no need to allege or prove the
amount of the ascertainable loss. A plaintiff need not prove a specific amount of actual
damages in order to make out a prima facie case under CUTPA” Serv. Road Corp., 241 Conn. at
638-39 (emphasis added); see Kent Literary Club of Wesleyan Univ. v. Wesleyan Univ., 338
Conn. 189, 229 n.20 (2021).
“Thus, as noted above, the plaintiff is not required to prove actual damages in order
to prevail on her CUTPA claims. The plaintiff need only prove that she suffered an
ascertainable loss.” Gombos, 2021 WL 6334693, at *4 (emphasis added). “The term ‘loss’
necessarily encompasses a broader meaning than the term damage.” Hinchliffe v. Am.
16
Motors Corp., 184 Conn. 607, 613 (1981) (emphasis added). “In fact, where a plaintiff
has
established a CUTPA violation and an ascertainable loss, it is reversible error not to award
at least nominal damages, even if the plaintiff has failed to prove any actual damages.”
Gombos, 2021 WL 6334693, at *4 (citing Tang v. Bou-Fakhreddine, 75 Conn. App. 334 (2003).
Here, as discussed in Section IV of this Objection, the Plaintiff has produced sufficient
evidence to establish that the Defendant’s actions violated CUTPA. In addition, the Plaintiff has
produced sufficient evidence to establish that it has suffered an ascertainable loss under CUTPA.
See Hinchliffe, 184 Conn. at 613; Kent Literary Club of Wesleyan Univ., 338 Conn. at 229 n.20.
ii. THERE IS A GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER
MATTSON BREACHED HIS FIDUCIARY DUTY TO THE PLAINTIFF AND
BREACHED HIS DUTY OF LOYALTY (COUNTS FOUR AND FIVE)
Count Four of the Plaintiff's Revised Complaint states a claim for breach of fiduciary
duty, and Count Five brings a claim for breach of the duty of loyalty. In his motion for summary
judgment, the Defendant does not argue that the Plaintiff cannot produce sufficient evidence to
create a genuine issue of material fact as to the elements of these two claims. Indeed, the
Defendant’s motion does not even state the elements of the torts of breach of fiduciary duty or
breach of the duty of loyalty. See, e.g., Wall Sys., Inc., 324 Conn. at 730-31 (stating elements for
claim of breach of duty of loyalty); Biller Assocs. v. Peterkin, 269 Conn. 716, 723 (2004) (stating
elements for claim of breach of fiduciary duty).
Instead, the Defendant’s motion principally contends that this Court should enter
summary judgment as to Counts Four and Five of the Plaintiff's Complaint because “the alleged
bad acts on his part . . . all came after any fiduciary relationship between the plaintiff and
Mattson had ended.” Memo. at 20. In other words, the Defendant argues that he had no
17
fiduciary duty to the Plaintiffas a matter of law after he resigned as the Plaintiff's employee.
See id.
To the contrary, Connecticut law clearly provides that even after an employment
relationship has terminated, there is a continuing duty for former employees not to use
confidential information for the benefit of a new employer.
Generally speaking, in the absence of a restrictive covenant, a former employee
may compete with his or her former employer upon termination of employment.
Even after the employment has ceased, however, the employee remains
subject to a duty not to use trade secrets, or other confidential information,
which he has acquired in the course of his employment, for his own benefit or
that of a competitor to the detriment of his former employer.
Elm City Cheese Co. v. Federico, 251 Conn. 59, 69 (1999) (emphasis added); see CTRE, LLC v.
Colburn, No. CV-074028031, 2008 WL 2796870, at *3 (Conn. Super. Jun. 20, 2008) (same);
Restatement (Third) of Agency § 8.01, comment (c) (“an agent may be subject to post-
termination duties applicable to the agent’s use of property of the principal and confidential
information provided by the principal or otherwise acquired in the course of the agency
relationship.”) Thus, as a matter of law, Mattson’s fiduciary duty to the Plaintiff did not end on
the day he terminated his employment with the Plaintiff, and this Court should reject the
Defendant’s argument to the contrary.!
1
This Court has already rejected the Defendant’s argument that an employee is no longer
subject to a fiduciary obligation to his employer on the date he resigns his employment. In its
order denying the Defendant’s motion to strike Counts Four and Five, this Court (Fischer, J.)
stated: “The Plaintiff counters that even after leaving employment there remains a duty not
to use confidential information that an employee has acquired during his employment,
citing Elm City Cheese Co. v. Federico, 251 Conn. 59 (1999). Under the allegations here, at
the very least, the defendant used information previously acquired while employed by the
plaintiff in order to enter and access the confidential records of the plaintiff. Accordingly,
the plaintiffs objections to the motion to strike counts 4 and 5 are sustained.” Doc. No. 109.00
(emphasis added). In other words, this Court has already held that, even after leaving
employment with the Plaintiff, there remains a duty not to use confidential information that the
employee has acquired during his employment. Pursuant to the law of the case doctrine, this
18
Here, Cartwright’s Affidavit and attached exhibits demonstrate that on March 12, 2021—
just three days after he left his job with the Plaintiff—the Defendant improperly obtained
administrator rights and access to the Plaintiff's DMS. Cartwright Aff. § 13. In other words,
Mattson used his knowledge of the Plaintiff's confidential and proprietary DMS, which he
acquired in the course of his employment with the Plaintiff, to obtain the Plaintiff's confidential
and proprietary business information for the benefit of himself and his new employer. Jd. For
this reason alone, this Court should deny the Defendant’s motion for summary judgment as to
Counts Four and Five. See Hurlburt, 2018 WL 3711314, at *3-4 (denying motion for summary
judgment where evidence submitted by the plaintiff “demonstrates the existence of genuine
issues of material fact.”)
The Defendant also makes this perplexing argument: “There is no evidence that
Mattson’s accidental access to certain plaintiff-related information, via the HMA website, is in
any way traceable to proprietary information of the plaintiff that he had obtained when he
worked there.” Memo. at 21. The Defendant’s argument should be rejected by this Court
because it is vague and ambiguous. In addition, this argument is inadequately briefed. “Courts
are not required to review claims that are inadequately briefed. The parties may not merely cite a
legal principle without analyzing the relationship between the facts of the case and the law cited.
It is not enough merely to mention a possible argument in the most skeletal way, leaving the
court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.”
Colby v. Colby, No. HHD-CV-21-6150562-S, 2022 WL 2981659, at *3 (Conn. Super. Jul. 28,
2022) (Shapiro, J.).
Court should not disturb Judge Fischer’s earlier ruling. See Bowman v. Jack’s Auto Sales, 54
Conn. App. 289, 293 (1999) (“A judge should hesitate to change his own rulings in a case and
should be even more reluctant to overrule those of another judge.”)
19
IV. THERE IS A GENUINE ISSUE OF MATERIAL FACT REGARDING
WHETHER MATTSON BREACHED THE CONNECTICUT UNFAIR TRADE
PRACTICES ACT (“CUTPA”) (COUNT EIGHT)
“General Statutes § 42-110b(a) provides that no person shall engage in unfair methods
of competition and unfair or deceptive acts or practices in the conduct of any trade or
commerce. It is well settled that in determining whether a practice violates CUTPA we have
adopted the criteria set out in the cigarette rule by the federal trade commission for determining
when a practice is unfair: (1) whether the practice, without necessarily having been previously
considered unlawful, offends public policy as it has been established by statutes, the common
law, or otherwise—in other words, it is within at least the penumbra of some common law,
statutory, or other established concept of unfairness; (2) whether it is immoral, unethical,
oppressive, or unscrupulous; or (3) whether it causes substantial injury to consumers,
competitors, or other businesspersons. All three criteria do not need to be satisfied to support a
finding of unfairness. A practice may be unfair because of the degree to which it meets one of
the criteria or because to a lesser extent it meets all three. Thus, a violation of CUTPA may be
established by showing either an actual deceptive practice, or a practice amounting to a
violation of public policy.” Harris v. Bradley Mem. Hosp. & Health Ctr. Inc., 296 Conn. 315,
350-51 (2010).
Here, the Plaintiff has proffered substantial evidence to demonstrate a genuine issue of
material fact that Mattson has engaged in an actual deceptive practice that is immoral, unethical,
or unscrupulous. See id. For instance, the evidence demonstrates that Mattson, while working at
Wile Hyundai, improperly obtained administrator rights and access to Central Hyundai’s DMS
without permission. Cartwright Aff. { 13. As a result of Mattson’s deceptive and unscrupulous
actions, he was granted rights into Central Hyundai's DMS as an Administrator, which gave him
20
full, complete and total access to Central Hyundai’s financials, employee data base, sales
customer data base, service customer data base, inventory, and all other aspects of Central
Hyundai’s dealership. /d. { 15. Even though the Defendant has denied these actions, the
Plaintiff's admissible evidence creates a genuine issue of material fact that defeats his motion for
summary judgment. See Hurlburt, 2018 WL 3711314, at *3-4 (denying motion for summary
judgment where evidence submitted by the plaintiff “demonstrates the existence of genuine
issues of material fact.”)
CONCLUSION
WHEREFORE, for all of the foregoing reasons, this Court should deny the Defendant's
motion for summary judgment as to Counts Four, Five, Six, and Eight of the Revised Complaint.
The Plaintiff does not object to entry of summary judgment as to Counts One, Six, and Nine.
THE PLAINTIFF,
IRONHORSE AUTO, LLC d/b/a
CENTRAL HYUNDAI
By /s/ 103001
John M. Wolfson
Benjamin M. Wattenmaker
FEINER WOLFSON LLC
One Constitution Plaza
Suite 900
Hartford, CT 06103
Juris No. 415049
Tel: (860) 713-8900
Fax: (860) 713-8905
jwolfson@feinerwolfson.com
21
CERTIFICATION
I certify that a copy of the above was or will immediately be mailed or delivered
Jectronically or non-electronically on June 6, 2023 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 of record who were or will immediately be electronically served.:
William J. O’Sullivan, Esq.
O’Sullivan McCormack Jensen & Bliss PC
180 Glastonbury Boulevard, Suite 210
Glastonbury, CT 06033
Phone: (860) 258-1993
Fax: (860) 258-1991
Email: wosullivan@omijblaw.con
/s/ 103001
John M. Wolfson
Das v. Pratt & Whitney, Not Reported in Atl. Rptr. (2018)
2018 WL 4373841
In the amended complaint, the plaintiff alleges the following
2018 WL 4373841 facts. The plaintiff is a seventy-one-year-old man, and
Only the Westlaw citation is currently available. he is of Indian “national origin/ethnicity.” In 1992, the
plaintiff started working for the defendant as a materials
UNPUBLISHED OPINION. CHECK engineer. Beginning in 2000, the plaintiff was stationed at
COURT RULES BEFORE CITING. the defendant's East Hartford facility. During his employment
with the defendant, the plaintiff always received positive
Superior Court of Connecticut, reviews.
Judicial District of Hartford at Hartford.
In April 2015, the plaintiff was assigned to participate in
Gopal DAS the “Materials Affordability Initiative” (program), a joint
V. research endeavor between the defendant, other businesses,
PRATT & WHITNEY, a Division and the United States Air Force. As a participant in
the program, the plaintiff researched “various metal or
of United Technologies Corporation composite materials” for future use in “industrial or aerospace
applications.” To conduct such research, the plaintiff
HHDCV166070095S submitted purchase orders to procure necessary materials.
| Multiple levels of management, including the program's
August 27, 2018 manager, Erik Michaelson, processed and approved the
purchase orders. In this regard, the plaintiff was not
Opinion
responsible for budgeting or accounting.
Cesar A. Noble, J.
*2 Approximately four months later, in August 2015,
*1 Before the court is the motion for summary judgment the plaintiff discovered an issue relating to the program's
of the defendant, United Technologies Corp.,! as to count budget, and he notified Michaelson of the budgetary issue.
two of the amended complaint filed by the plaintiff, Gopal Sometime thereafter, the plaintiff discussed the issue with
Das, on the grounds that the plaintiff cannot satisfy all of Michaelson and Mike Maloney, Michaelson's supervisor.
the elements of a prima facie case of age discrimination, and Both Michaelson and Maloney informed the plaintiff that the
further that the plaintiff cannot establish that the defendant's budgetary issue would be “resolved.”
reason for terminating his employment was a pretext for
age discrimination. For the reasons set forth below, the On October 22, 2015, the plaintiff was summoned to a
defendant's summary judgment motion must be denied. meeting with other employees and a representative from the
defendant's human resources department. During the meeting,
the plaintiff was questioned about the budgetary issue that he
discovered in August 2015. At its conclusion, the plaintiff's
FACTS
Preview
DOCKET NO.: WWM-CV-21-6022016-S SUPERIOR COURT TRONHORSE AUTO, LLC d/b/a CENTRAL HYUNDAI J.D. OF WINDHAM vs. AT PUTNAM BRENT MATTSON JUNE 6, 2023 PLAINTIFF’S OBJECTION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Pursuant to Practice Book § 17-45 er seq., the Plaintiff, Ironhorse Auto, LLC d/b/a Central Hyundai, hereby files this Objection to the motion for summary judgment filed by the Defendant, Brent Mattson, on March 6, 2023 as to Counts Four, Five, Six, and Eight of the Revised Complaint. The Plaintiff does not object to entry of summary judgment as to Counts One, Six, and Nine. RELEVANT FACTS The Plaintiff, Ironhorse Auto, LLC d/b/a Central Hyundai (“Central Hyundai” or the “Plaintiff’), is a limited liability company with a principal place of business in Plainfield. Affidavit of David Cartwright (“Cartwright Aff.”) 45. The Plaintiff is a full-service Hyundai automobile dealer. Jd. Defendant, Brent Mattson, is an individual who resides at 40 Mile Road, Coventry, Rhode Island. Jd. | 6. WHL LLC d/b/a Wile Hyundai, is a Connecticut Hyundai dealer with a principal place of business in Columbia, Connecticut (“Wile Hyundai”). Id. | 7. Wile Hyundai is located approximately 20 miles from the Plaintiff and is the Plaintiff's direct competitor with respect to the sale and service of Hyundai brand motor vehicles. Id. Hyundai Motor America (“HMA”) is the United States seller of Hyundai vehicles, with a business address in California. Jd. { 8. HMA is a wholly owned subsidiary of Hyundai Motor Company. /d. HMA makes and distributes Hyundai vehicles for the United States market. /d. In or about August of 2019, the Plaintiff hired Mattson as its Service Manager. Id. 4 9. As the Service Manager, Mattson had limited access to the Plaintiff's computerized Dealer Management System (the “DMS”). Jd. The DMS contains all of the Plaintiff's proprietary and confidential business information, including detailed customer information, employee information, details about the dealership’s new and used car inventories, as well as its parts inventory, service transactions, and its finances. Id. J 10. On or about March 9, 2021, Mattson resigned from Central Hyundai. Jd. ¥ 11; Deposition of Brent Mattson (“Mattson Depo.”) at 97. Immediately after Mattson’s resignation was final, the Plaintiff deleted his rights to access Central Hyundai’s DMS, and Mattson’s company email access was also deleted. Cartwright Aff. 11. The next day, Mattson joined Wile Hyundai as its Service Manager. Jd. { 12; Mattson Depo. at 97. However, on March 12, 2021, Mattson improperly obtained system administrator access to Central Hyundai’s DMS System, without the Plaintiff's permission. Cartwright Aff. q 13. The protocol at Hyundai Motor America was that Mattson should have been referred to the current system administrator at Central Hyundai for the system administrator to contact HMA to obtain any rights to access Central Hyundai’s DMS. Jd. ¥ 18. However, HMA violated its own protocol and granted Mattson rights into Central Hyundai’s DMS as an Administrator, thereby giving Mattson full, complete and total access to Central Hyundai’s confidential and proprietary business information, including its financial information, employee data base, sales customer data base, service customer data base, inventory, and all other aspects of Central Hyundai’s dealership. Id. 4 15. Mattson maintained full access to his administrator status over Central Hyundai’s DMS system from the time that he entered the system on March 12, 2021 until April 2, 2021, when Central Hyundai was made aware of the breach and Mattson’s access was shut down by HMA at Central Hyundai’s request. Id. J] 22-24. During this time period, Mattson had full access to the Plaintiff's DMS system after he left the Plaintiff's employment. Jd. { 22. Mattson took several affirmative actions on the DMS system during this time, including (1) account set up; and (2) changing the job code. Jd. 423. During his deposition, Mattson admitted that after March 12, 2021, he had improper access to the Plaintiff's DMS system, and reviewed training information from employees of Central Hyundai. Mattson Depo. at 125-28. Ellen Jones, the Plaintiff's System Administrator, spoke with HMA by telephone on April 2, 2021. Affidavit of Ellen Jones (“Jones Aff.”) § 13. During this call, Jones learned for the first time that Mattson had access to the system administrator level in Central Hyundai’s DMS. Jd. Jones immediately asked HMA to shut down Mattson’s access, and HMA did so. Id. Jones immediately told Mr. Cartwright about the breach of security. Id. RELEVANT PROCEDURAL HISTORY On or about May 27, 2021, the Plaintiff filed its initial Complaint against Mattson. On September 26, 2021, the Plaintiff filed a Revised Complaint which alleged nine counts, including: violation of General Statutes §§ 53-451 and 53-452 (Count One); conversion (Count Two); statutory theft (Count Three); breach of fiduciary duty (Count Four); breach of the duty of loyalty (Count Five); tortious interference with business relationships (Count Six); violation of the Connecticut Unfair Trade Practices Act (Count Eight); and unjust enrichment (Count Nine). The Defendant moved to strike counts two, three, four, and five of the Plaintiff's Complaint. On January 18, 2022, the trial court (Fischer, J.), granted the Plaintiffs motion to strike counts two and three, and denied the Plaintiff's motion to strike counts four and five. Doc No. 109.10. With regard to its decision to deny the Defendant’s motion to strike counts four and five, the trial court reasoned: As to Counts 4 and 5, the defendant, relying on Essex Insurance Co. y. William Kramer & Assocs., 331 Conn. 493 (2019) argues that they must be struck because his duty of loyalty and fiduciary duty ended when he left the plaintiff's employment. The plaintiff counters that even after leaving employment there remains a duty not to use confidential information that an employee has acquired during his employment, citing Elm City Cheese Co. v. Frederico, 251 Conn. 59 (1999). Under the allegations here, at the very least, the defendant used information previously acquired while employed by the plaintiff in order to enter and access the confidential records of the plaintiff. Accordingly, the plaintiff's objections to the motion to strike counts 4 and 5 are sustained. See Doc. No. 109.10. In other words, this Court held that, as a matter of law, even after leaving his employment with the Plaintiff, the Defendant still had a duty not to use confidential information that he had acquired during his employment with the Plaintiff. See id. STANDARD OF REVIEW Pursuant to Practice Book § 17-49, summary judgment shall enter only if “the pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” Dunn v. Northeast Helicopters Flight Servs., LLC, 346 Conn. 360, 369-70 (2023). Additionally, “the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion.” Walker v. Dep’t of Children & Families, 146 Conn. App. 863, 871 (2013); see Das v. Pratt & Whitney, HHD-CV-16-6070095-S, 2018 WL 4373841, at *3 (Conn. Super. Aug. 27, 2018). “The party seeking summary judgment has the burden of showing the absence of any genuine issue of material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law, and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of material fact. A material fact is a fact which will make a difference in the result of the case.” Romprey v. Safeco Ins. Co. of Am., 310 Conn. 304, 312-13 (2013). The courts hold the moving party to a “strict standard”: The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11 (2008) (emphasis added). In other words, “to satisfy his burden, the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.” Dougherty v. Graham, 161 Conn. 248, 250 (1971) (emphasis added). “When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue. Once the moving party has met its burden, however, the nonmoving party must present evidence that demonstrates the existence of some disputed factual issue.” Lucenti v. Laviero, 327 Conn. 764, 773 (2018). DISCUSSION I MATTSON IMPROPERLY OBTAINED ACCESS TO THE PLAINTIFF’S DMS SYSTEM AFTER HE RESIGNED FROM ITS EMPLOYMENT The Defendant’s motion for summary judgment first argues that summary judgment should be entered in his favor because his “sworn testimony at his deposition establishes that the allegations against him have no basis.” Memorandum in Support of MSJ (“Memo.”) at 14. Specifically, Mattson argues that he “never was given administrator access to Central Hyundai’s DMS, he does not know how to obtain such access, and the Complaint is not truthful.” Jd. at 14- 15. However, the Defendant is incorrect. Indeed, the Plaintiff has produced substantial evidence to show that Mattson improperly obtained access to the Plaintiffs DMS after he left the Plaintiff's employment, without permission. See Romprey, 310 Conn, at 312-13. For instance, the Affidavit of David Cartwright states that Mattson resigned from Central Hyundai on March 9, 2021. D. Cartwright Aff. 411. Immediately after Mattson’s resignation was final, the Plaintiff deleted his rights to Access Central Hyundai’s DMS, and Mattson’s email access was also deleted. Id. The next day, Mattson joined Wile Hyundai as its Service Manager. Id. § 12. On March 12, 2021, while working at Wile Hyundai, Mattson improperly obtained administrator access to Central Hyundai’s DMS. Jd. 13. Mattson maintained full access to his administrator status without permission from the Plaintiff from the time he improperly entered the system on March 12, 2021 until April 2, 2021, when Central Hyundai became aware of the breach and Mattson’s access was shut down. Jd. ¥ 14; Jones Aff. §§ 13-15. In addition, the Cartwright Affidavit includes contemporaneous emails he wrote to Hyundai Motor America after he learned that Mattson had improperly gained access to the Plaintiff's DMS. Id. §§ 16-19, Exh. A. The Cartwright Affidavit also includes the DMS Account History for Mattson (“Account History”), which demonstrates that Mattson re-activated his DMS account on March 12, 2021, after he left the Plaintiff's employment. Jd. {4 20-24, Exh. B. The Account History further reflects that Mattson took several other actions on the DMS account after March 12, 2021, including (1) account set up; and (2) changing the job code. Jd. {| 23. The Account History also reflects that Central Hyundai did not terminate Mattson’s access to the DMS until it became aware of the breach on April 2, 2021. Id. § 24. Moreover, in his deposition, Mattson admitted that he had improper access to the Plaintiff's DMS system after March 12, 2021. Mattson Depo. at 125-28. Specifically, he testified, under oath: Q Why would you have sent him a text . . . to the effect of I see you are not up to speed in training? A At one point I was able to see the training levels for previous employees that were under me, whether it was Central Hyundai or if it was Wile Hyundai. And at that point, I sent an email to Mr. Cleary regarding that, and he said he would talk to Tim Longton to address that. What do you mean you would—when was this? The exact date, I don’t remember. Was this before or after you left Central Hyundai? This was after. How did you get to see? That, I don’t know. [...] When you say you could see training, where were you secing it? In the Hyundai learning portal. And the Hyundai learning portal is part of what program? Hyundai dealer.com. It has its own website. You get to it through its website. Are you saying it is part of Hyundai dealer.com? Uh-huh. Yes. And that you had access to training histories from Central Hyundai employees? It would show me past and present employees that worked under me whether or not they had taken a class. Id. at 125-26 (emphasis added). Earlier in his deposition, Mattson clarified that “Hyundai dealer.com” is Hyundai’s dealer management system. Jd. at 59. Thus, Mattson admitted that he had improper access to Central Hyundai’s DMS after he was no longer employed by Central Hyundai. See id. In sum, the Plaintiff has submitted admissible evidence to show that Mattson wrongfully obtained access to the Plaintiff's DMS system after he left the Plaintiff's employment on March 12, 2021, and that he wrongfully maintained access to the DMS system until April 2, 2021. For this reason alone, this Court should deny the Defendant’s motion for summary judgment. See Hurlburt v. City of New Haven, No. CV-166061635-S, 2018 WL 3711314, at *3-4 (Conn. Super. Jul. 3, 2018) (denying motion for summary judgment where evidence submitted by the plaintiff “demonstrates the existence of genuine issues of material fact.”); Papa v. Schroeder, No. CV- 146052720-S, 2016 WL 1265707, at *5 (Conn. Super. Mar. 1, 2016) (on a motion for summary judgment, “if the parties present conflicting evidence, it should be submitted to the fact finder.”) Il. THE PLAINTIFF CAN PROVE ITS DAMAGES WITH REASONABLE CERTAINTY Next, the Defendant contends that the Plaintiff cannot prove its damages with reasonable certainty. Memo at 15-16. In particular, the Defendant argues that the Plaintiff's damages calculation is “built on sheer speculation” because “there is no evidence of any claim against Mattson that would support” an award of lost profits. Jd. at 15. Once again, the Defendant is wrong. The Plaintiff has produced sufficient evidence to prove its damages arising from its lost profits with reasonable certainty. A. The PlaintiffCan Prove Its Damages Arising From Lost Profits With Reasonable Certainty. “In deciding whether damages properly have been awarded, we are guided by the well- established principle that such damages must be proved with reasonable certainty. Although we recognize that damages for lost profits may be difficult to prove with exactitude, such damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount with reasonable certainty. Consequently, we have permitted lost profits to be calculated by extrapolating from past profits.” Cheryl Terry Enters., Ltd. v. City of Hartford, 270 Conn. 619, 639 (2004) (emphasis added). “This court and courts of other jurisdictions have looked to a number of factors in evaluating whether the plaintiff has proved damages with reasonable certainty. A plaintiff's prior experience in the same business has been held to be probative, as has a plaintiff's experience in the same enterprise subsequent to the interference.” Jd. at 639-40 (emphasis added). In addition, “a damage theory may be based on assumptions so long as the assumptions are reasonable in light of the record evidence. The reasonableness of the assumptions underlying the plaintiff's damage theory is determined by the trier of fact. Federal appellate courts have refused to find damage evidence insufficient unless there was no basis for critical assumptions made by the trier of fact.” Jd. at 640 (emphasis added); see Westport Taxi Serv., Inc. v. Westport Transit Dist., 235 Conn. 1, 28 (1995). “Where damages are appropriate but difficult to prove the law eschews the necessity of mathematical exactitude. Such exactitude in the proof of damages is often impossible, and all that can be required is that the evidence, with such certainty as the nature of the particular case may permit, lay a foundation which will enable the trier to make a fair and reasonable estimate.” Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 285 (1994); see Johnson v. NEHDS Logistics, LLC, DBD-CV-17-6022465-S, 2018 WL 7893359, at #3 (Conn. Super. Dec. 20, 2018) (denying motion for partial summary judgment on damages where plaintiff's claim for damages meets standard of reasonable certainty). Moreover, our Supreme Court has recognized that where, as in this case, an employee has secretly breached his fiduciary duty to his employer, evidence of damages is likely to be solely in the possession of the employee, and therefore, it may be difficult for the employer to discover such evidence. See Wall Sys., Inc. v. Pompa, 324 Conn. 718, 734 (2017) (ina claim for breach of the duty of loyalty by an employee, “forfeiture may be the only available remedy when it is difficult to prove that harm to the employer resulted from the employee’s breach or when the employee realizes no profit from the breach.”); Hosp. Media Network, LLC v. Henderson, FST- CV-136020559-S, 2020 WL 1921996, at *10 (Conn. Super. Feb. 25, 2020) (in a claim for breach of the duty of loyalty by an employee, “the extent to which the defendant was affirmatively disloyal or engaged in self-dealing, the extent to which he took and misused proprietary or confidential information, the extent to which he may have usurped corporate opportunities . . . all would require access to materials in the possession or control of the defendant.”) The case of Message Center Management, Inc. v. Shell Oil Products Co., 85 Conn. App. 401, 421 (2004), is instructive. There, the parties executed three contracts—two regional contracts and one national contract—in which the plaintiff agreed to market the defendant’s properties as possible locations for wireless communications carriers. See Message Center Management, Inc., 85 Conn. App. at 404-05. Two years later, the defendant terminated the national contract, and the plaintiff sued for lost profits arising from a breach of that contract. Id. at 405. At trial, the plaintiff's expert witness estimated that the plaintiff would have secured 38 contracts for the defendant under the national agreement, based solely upon the number of 10 contracts it secured for the defendant under the two regional agreements. /d. The jury found for the plaintiff on its breach of contract claim, and awarded damages in the amount of $1,351,836. Id. at 407. However, the trial court granted the defendant’s motion for judgment notwithstanding the verdict, vacated the damages award, and entered judgment for the plaintiff for $1.00. Id. The court reasoned that the plaintiff did not produce sufficient evidence to prove damages to a reasonable certainty. Id. On appeal, the Appellate Court reversed the trial court’s decision, holding that the plaintiff proved its damages with reasonable certainty. Jd. at 423-24. The court noted that the plaintiff's damages evidence rested upon “the key assumption . . . that the plaintiff's success in securing contracts under the [regional] agreements was a valid indicator as to anticipated success under the national agreement.” /d. at 424-25. The court held that the jury’s award of damages was reasonable in light of the record evidence, noting that “damages related to lost profits cannot be calculated with mathematical certainty. Mathematical exactitude in proof often is impossible. Doubts as to exact amounts generally are resolved against the party in breach.” /d. at 421 (emphasis added). Here, as in Message Center Management, the Plaintiff in this case has produced sufficient evidence to establish its damages to a reasonable certainty. See id. The admissible evidence reflects that before Mattson resigned as an employee of the Plaintiff, A&B Transportation was a frequent and reliable customer of the Plaintiff. Cartwright Aff. | 36. For example, between September 2017 and February 2020, A&B Transportation purchased six vehicles from the Plaintiff, with a total gross profit of approximately $126,000.00. /d. 429. In his affidavit, David Cartwright, the owner of the Plaintiff, states that the Plaintiff's gross profit 11 percentage is 36%. Id. 430. Thus, the Plaintiff realized net profits of more than $45,000.00 from these six sales. /d. In addition, from 2017 through February 2020, the Plaintiff frequently provided parts and service for A&B Transportation’s vehicles, which amounted to gross profit of $4,274.00. Id. Thus, the Plaintiff realized a total of $49,274.00 in net profit from A&B Transportation during this same time period. Jd. The Plaintiff calculates that it would have realized at least the same amount of net profits from A&B Transportation over the next three years but for Mattson’s interference. Id. 4 32; see Cheryl Terry Enters., Ltd., 270 Comn. at 639 (“we have permitted lost profits to be calculated by extrapolating from past profits.”) The Defendant argues that A&B Transportation is not a “lost customer” because it continued to do some business with the Plaintiff after Mattson resigned. Memo. at 16. However, it is undisputed that since Mattson’s resignation, A&B Transportation has dramatically reduced the amount of business that it does with the Plaintiff. Cartwright Aff. | 36. In addition, A&B Transportation only continues to bring its vehicles to the Plaintiff for service where such vehicles are under warranty with the Plaintiff, and those service visits are covered by Hyundai under warranty work. /d. { 34. In other words, after Mattson’s departure from the Plaintiff, the Plaintiff has lost A&B Transportation’s paid service visits, and it has only performed warranty service on A&B Transportation’s vehicles. See id. The Defendant also points out that A&B Transportation has purchased two vehicles from the Plaintiff after Mattson’s departure. Memo. at 17; Brown Aff. 4 6. However, it is undisputed that A&B Transportation purchased more vehicles from the Plaintiff before Mattson resigned his position. Cartwright Aff. { 29. In addition, the only reason why A&B Transportation purchased these two vehicles from the Plaintiff is because A&B Transportation 12 uses only black on black Hyundai Accents and Elantras in its fleet. Jd. 936. A&B Transportation only purchased those vehicles from the Plaintiff because the Plaintiff had the needed black on black vehicles in inventory when A&B Transportation required such vehicles, and the Plaintiff was not their first choice to make such purchases. Jd. The Defendant also argues that the Plaintiff's calculation of loss is somehow deficient because it is based upon lost profits from a single customer. Memo. at 16. However, our Appellate Courts have routinely held that a damages calculation is made with reasonable certainty in cases where, as in this case, it is based upon the demand from a single customer. See, e.g., Message Ctr. Mgmt., Inc., 85 Conn. App. at 424-25 (plaintiff's damages calculation of lost profits was made with reasonable certainty where it was based solely upon a business relationship with one customer). Similarly, the Defendant argues that the Plaintiff cannot “presume that it will retain the undivided loyalty of any given service customer for a period of years.” Memo. at 16. However, “a plaintiff's prior experience in the same business has been held to be probative, as has a plaintiffs experience in the same enterprise subsequent to the interference.” Cheryl Terry Enters., Ltd., 270 Conn. at 639-40. In addition, our courts have repeatedly held that “a damages theory may be based upon assumptions as long as those assumptions are reasonable in light of the record evidence. The reasonableness of those assumptions is to be determined by the trier of fact.” Message Ctr. Mgmt., Inc., 85 Conn. App. at 424. In other words, the question of whether the assumptions made by the Plaintiff are reasonable should be made by the “trier of fact” after a full trial on the merits—not by this Court on a motion for summary judgment. See id. 13 Moreover, the Defendant argues that “the Plaintiff has failed to meet the evidentiary burden, specific to claims of lost profit, articulated by our Supreme Court in American Diamond Exchange, Inc. v. Alpert, 302 Conn. 494 (2011).” Memo. at 17. Once again, however, the Defendant is incorrect. In Alpert, the Court held that the plaintiff, a jewelry merchant, failed to prove its claim for lost profits with reasonable certainty where the plaintiff's president testified that its markup on estate jewelry sales was “at a minimum, 100% every time on items that cost less than $50,000 to acquire.” Am. Diamond Exch., Inc., 302 Conn. at 511. The Court reasoned that “no documentary evidence was offered to support this claim,” and there was no testimony to the effect that such data were not available. Jd. at 511-12 (emphasis added). The Court explained that, “at a minimum, opinions or estimates of lost profits must be based on objective facts, figures, or data from which the amount of lost profits may be ascertained.” Id. at 512 (emphasis added). Here, by contrast, the Plaintiff has produced “objective facts, figures, or data from which the amount of lost profits may be ascertained.” See id. Specifically, the Plaintiff has produced the objective evidence of its profits from business with A&B Transportation from 2017 through early 2020. Cartwright Aff. {{] 28-32. The Defendant does not even attempt to argue that these figures are inaccurate. See id. Our Supreme Court has repeatedly held that lost profits may be calculated “by extrapolating from past profits.” Cheryl Terry Enters., Ltd., 270 Conn. at 639. In addition, “a plaintiffs prior experience in the same business has been held to be probative, as has a plaintiffs experience in the same enterprise subsequent to the interference.” Jd. at 639- 40. Thus, unlike the plaintiff in Alpert, the Plaintiff in this case has produced sufficient evidence of its past profits to make a reasonable assumption regarding the profits it would have received from A&B Transportation but for the Defendant’s interference. See id. at 640 (“a 14 damage theory may be based on assumptions as long as the assumptions are reasonable in light of the record evidence.”) Moreover, the Court in Alpert found that there were additional problems with the plaintiff's damages calculation: “even if the evidence had permitted the fact finder to determine the plaintiff's profit margins with reasonable certainty, there still was no way to calculate what the plaintiffs profit margins would have been on the diverted sales with anything approaching reasonable certainty because, with very few exceptions, Alpert was unable to recall what he paid to acquire a piece of diverted jewelry or what he later sold it for. The plaintiff, moreover, made no efforts to obtain this information.” Id. at 513 (italics added). Here, by contrast, the Plaintiff has produced all such information, and the Defendant does not even attempt to argue that the Plaintiff's proof of damages contains similar defects. See id. Furthermore, Alpert was decided after a full trial on the merits, in which the plaintiff had the burden to prove its damages by a preponderance of the evidence. Here, by contrast, in this motion for summary judgment, the Defendant, as the moving party, has the burden to demonstrate the absence of any genuine issue of material fact. See Romprey, 310 Conn. at 312- 13. In addition, in deciding this motion for summary judgment, this Court “must view the evidence in the light most favorable to the nonmoving party,” and “must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion.” See Das, 2018 WL 4373841, at *3. In this case, when viewing the evidence of damages in the light most favorable to the Plaintiff, and taking all inferences to be drawn from the facts in favor of the Plaintiff, this Court should conclude that the Plaintiff has calculated its lost profits to a reasonable certainty. See id.; Message Ctr. Mgmt., Inc., 85 Conn. App. at 424-25. 15 B. The Plaintiff Can Prove An Ascertainable Loss Under CUTPA. Count Nine of the Plaintiff's Complaint states a claim under CUTPA. “We begin our analysis with the principle that CUTPA is remedial in character, and must be liberally construed in favor of those whom the legislature intended to benefit.” Serv. Road Corp. v. Quinn, 241 Conn. 630, 637 (1997). “CUTPA was designed to provide protection to businesses as well as to consumers. CUTPA is not limited to conduct involving consumer injury. A competitor or other business person can maintain a CUTPA cause of action without showing consumer injury.” Id. “To be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation. CUTPA, however, is not limited to providing redress only for consumers who can put a precise dollars and cents figure on their loss.” Gombos v. Wogchowski, No. CV-205047911-S, 2021 WL 6334963, at *4 (Conn. Super. Dec. 20, 2021) (emphasis added). Our Supreme Court has held that an ascertainable loss under CUTPA “is a deprivation, detriment, or injury that is capable of being discovered, observed, or established. A loss is ascertainable if it is measurable even though the precise amount of the loss is not known, Under CUTPA, there is no need to allege or prove the amount of the ascertainable loss. A plaintiff need not prove a specific amount of actual damages in order to make out a prima facie case under CUTPA” Serv. Road Corp., 241 Conn. at 638-39 (emphasis added); see Kent Literary Club of Wesleyan Univ. v. Wesleyan Univ., 338 Conn. 189, 229 n.20 (2021). “Thus, as noted above, the plaintiff is not required to prove actual damages in order to prevail on her CUTPA claims. The plaintiff need only prove that she suffered an ascertainable loss.” Gombos, 2021 WL 6334693, at *4 (emphasis added). “The term ‘loss’ necessarily encompasses a broader meaning than the term damage.” Hinchliffe v. Am. 16 Motors Corp., 184 Conn. 607, 613 (1981) (emphasis added). “In fact, where a plaintiff has established a CUTPA violation and an ascertainable loss, it is reversible error not to award at least nominal damages, even if the plaintiff has failed to prove any actual damages.” Gombos, 2021 WL 6334693, at *4 (citing Tang v. Bou-Fakhreddine, 75 Conn. App. 334 (2003). Here, as discussed in Section IV of this Objection, the Plaintiff has produced sufficient evidence to establish that the Defendant’s actions violated CUTPA. In addition, the Plaintiff has produced sufficient evidence to establish that it has suffered an ascertainable loss under CUTPA. See Hinchliffe, 184 Conn. at 613; Kent Literary Club of Wesleyan Univ., 338 Conn. at 229 n.20. ii. THERE IS A GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER MATTSON BREACHED HIS FIDUCIARY DUTY TO THE PLAINTIFF AND BREACHED HIS DUTY OF LOYALTY (COUNTS FOUR AND FIVE) Count Four of the Plaintiff's Revised Complaint states a claim for breach of fiduciary duty, and Count Five brings a claim for breach of the duty of loyalty. In his motion for summary judgment, the Defendant does not argue that the Plaintiff cannot produce sufficient evidence to create a genuine issue of material fact as to the elements of these two claims. Indeed, the Defendant’s motion does not even state the elements of the torts of breach of fiduciary duty or breach of the duty of loyalty. See, e.g., Wall Sys., Inc., 324 Conn. at 730-31 (stating elements for claim of breach of duty of loyalty); Biller Assocs. v. Peterkin, 269 Conn. 716, 723 (2004) (stating elements for claim of breach of fiduciary duty). Instead, the Defendant’s motion principally contends that this Court should enter summary judgment as to Counts Four and Five of the Plaintiff's Complaint because “the alleged bad acts on his part . . . all came after any fiduciary relationship between the plaintiff and Mattson had ended.” Memo. at 20. In other words, the Defendant argues that he had no 17 fiduciary duty to the Plaintiffas a matter of law after he resigned as the Plaintiff's employee. See id. To the contrary, Connecticut law clearly provides that even after an employment relationship has terminated, there is a continuing duty for former employees not to use confidential information for the benefit of a new employer. Generally speaking, in the absence of a restrictive covenant, a former employee may compete with his or her former employer upon termination of employment. Even after the employment has ceased, however, the employee remains subject to a duty not to use trade secrets, or other confidential information, which he has acquired in the course of his employment, for his own benefit or that of a competitor to the detriment of his former employer. Elm City Cheese Co. v. Federico, 251 Conn. 59, 69 (1999) (emphasis added); see CTRE, LLC v. Colburn, No. CV-074028031, 2008 WL 2796870, at *3 (Conn. Super. Jun. 20, 2008) (same); Restatement (Third) of Agency § 8.01, comment (c) (“an agent may be subject to post- termination duties applicable to the agent’s use of property of the principal and confidential information provided by the principal or otherwise acquired in the course of the agency relationship.”) Thus, as a matter of law, Mattson’s fiduciary duty to the Plaintiff did not end on the day he terminated his employment with the Plaintiff, and this Court should reject the Defendant’s argument to the contrary.! 1 This Court has already rejected the Defendant’s argument that an employee is no longer subject to a fiduciary obligation to his employer on the date he resigns his employment. In its order denying the Defendant’s motion to strike Counts Four and Five, this Court (Fischer, J.) stated: “The Plaintiff counters that even after leaving employment there remains a duty not to use confidential information that an employee has acquired during his employment, citing Elm City Cheese Co. v. Federico, 251 Conn. 59 (1999). Under the allegations here, at the very least, the defendant used information previously acquired while employed by the plaintiff in order to enter and access the confidential records of the plaintiff. Accordingly, the plaintiffs objections to the motion to strike counts 4 and 5 are sustained.” Doc. No. 109.00 (emphasis added). In other words, this Court has already held that, even after leaving employment with the Plaintiff, there remains a duty not to use confidential information that the employee has acquired during his employment. Pursuant to the law of the case doctrine, this 18 Here, Cartwright’s Affidavit and attached exhibits demonstrate that on March 12, 2021— just three days after he left his job with the Plaintiff—the Defendant improperly obtained administrator rights and access to the Plaintiff's DMS. Cartwright Aff. § 13. In other words, Mattson used his knowledge of the Plaintiff's confidential and proprietary DMS, which he acquired in the course of his employment with the Plaintiff, to obtain the Plaintiff's confidential and proprietary business information for the benefit of himself and his new employer. Jd. For this reason alone, this Court should deny the Defendant’s motion for summary judgment as to Counts Four and Five. See Hurlburt, 2018 WL 3711314, at *3-4 (denying motion for summary judgment where evidence submitted by the plaintiff “demonstrates the existence of genuine issues of material fact.”) The Defendant also makes this perplexing argument: “There is no evidence that Mattson’s accidental access to certain plaintiff-related information, via the HMA website, is in any way traceable to proprietary information of the plaintiff that he had obtained when he worked there.” Memo. at 21. The Defendant’s argument should be rejected by this Court because it is vague and ambiguous. In addition, this argument is inadequately briefed. “Courts are not required to review claims that are inadequately briefed. The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited. It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.” Colby v. Colby, No. HHD-CV-21-6150562-S, 2022 WL 2981659, at *3 (Conn. Super. Jul. 28, 2022) (Shapiro, J.). Court should not disturb Judge Fischer’s earlier ruling. See Bowman v. Jack’s Auto Sales, 54 Conn. App. 289, 293 (1999) (“A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge.”) 19 IV. THERE IS A GENUINE ISSUE OF MATERIAL FACT REGARDING WHETHER MATTSON BREACHED THE CONNECTICUT UNFAIR TRADE PRACTICES ACT (“CUTPA”) (COUNT EIGHT) “General Statutes § 42-110b(a) provides that no person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; or (3) whether it causes substantial injury to consumers, competitors, or other businesspersons. All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three. Thus, a violation of CUTPA may be established by showing either an actual deceptive practice, or a practice amounting to a violation of public policy.” Harris v. Bradley Mem. Hosp. & Health Ctr. Inc., 296 Conn. 315, 350-51 (2010). Here, the Plaintiff has proffered substantial evidence to demonstrate a genuine issue of material fact that Mattson has engaged in an actual deceptive practice that is immoral, unethical, or unscrupulous. See id. For instance, the evidence demonstrates that Mattson, while working at Wile Hyundai, improperly obtained administrator rights and access to Central Hyundai’s DMS without permission. Cartwright Aff. { 13. As a result of Mattson’s deceptive and unscrupulous actions, he was granted rights into Central Hyundai's DMS as an Administrator, which gave him 20 full, complete and total access to Central Hyundai’s financials, employee data base, sales customer data base, service customer data base, inventory, and all other aspects of Central Hyundai’s dealership. /d. { 15. Even though the Defendant has denied these actions, the Plaintiff's admissible evidence creates a genuine issue of material fact that defeats his motion for summary judgment. See Hurlburt, 2018 WL 3711314, at *3-4 (denying motion for summary judgment where evidence submitted by the plaintiff “demonstrates the existence of genuine issues of material fact.”) CONCLUSION WHEREFORE, for all of the foregoing reasons, this Court should deny the Defendant's motion for summary judgment as to Counts Four, Five, Six, and Eight of the Revised Complaint. The Plaintiff does not object to entry of summary judgment as to Counts One, Six, and Nine. THE PLAINTIFF, IRONHORSE AUTO, LLC d/b/a CENTRAL HYUNDAI By /s/ 103001 John M. Wolfson Benjamin M. Wattenmaker FEINER WOLFSON LLC One Constitution Plaza Suite 900 Hartford, CT 06103 Juris No. 415049 Tel: (860) 713-8900 Fax: (860) 713-8905 jwolfson@feinerwolfson.com 21 CERTIFICATION I certify that a copy of the above was or will immediately be mailed or delivered Jectronically or non-electronically on June 6, 2023 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 of record who were or will immediately be electronically served.: William J. O’Sullivan, Esq. O’Sullivan McCormack Jensen & Bliss PC 180 Glastonbury Boulevard, Suite 210 Glastonbury, CT 06033 Phone: (860) 258-1993 Fax: (860) 258-1991 Email: wosullivan@omijblaw.con /s/ 103001 John M. Wolfson Das v. Pratt & Whitney, Not Reported in Atl. Rptr. (2018) 2018 WL 4373841 In the amended complaint, the plaintiff alleges the following 2018 WL 4373841 facts. The plaintiff is a seventy-one-year-old man, and Only the Westlaw citation is currently available. he is of Indian “national origin/ethnicity.” In 1992, the plaintiff started working for the defendant as a materials UNPUBLISHED OPINION. CHECK engineer. Beginning in 2000, the plaintiff was stationed at COURT RULES BEFORE CITING. the defendant's East Hartford facility. During his employment with the defendant, the plaintiff always received positive Superior Court of Connecticut, reviews. Judicial District of Hartford at Hartford. In April 2015, the plaintiff was assigned to participate in Gopal DAS the “Materials Affordability Initiative” (program), a joint V. research endeavor between the defendant, other businesses, PRATT & WHITNEY, a Division and the United States Air Force. As a participant in the program, the plaintiff researched “various metal or of United Technologies Corporation composite materials” for future use in “industrial or aerospace applications.” To conduct such research, the plaintiff HHDCV166070095S submitted purchase orders to procure necessary materials. | Multiple levels of management, including the program's August 27, 2018 manager, Erik Michaelson, processed and approved the purchase orders. In this regard, the plaintiff was not Opinion responsible for budgeting or accounting. Cesar A. Noble, J. *2 Approximately four months later, in August 2015, *1 Before the court is the motion for summary judgment the plaintiff discovered an issue relating to the program's of the defendant, United Technologies Corp.,! as to count budget, and he notified Michaelson of the budgetary issue. two of the amended complaint filed by the plaintiff, Gopal Sometime thereafter, the plaintiff discussed the issue with Das, on the grounds that the plaintiff cannot satisfy all of Michaelson and Mike Maloney, Michaelson's supervisor. the elements of a prima facie case of age discrimination, and Both Michaelson and Maloney informed the plaintiff that the further that the plaintiff cannot establish that the defendant's budgetary issue would be “resolved.” reason for terminating his employment was a pretext for age discrimination. For the reasons set forth below, the On October 22, 2015, the plaintiff was summoned to a defendant's summary judgment motion must be denied. meeting with other employees and a representative from the defendant's human resources department. During the meeting, the plaintiff was questioned about the budgetary issue that he discovered in August 2015. At its conclusion, the plaintiff's FACTS