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DOCKET NO.: WWM-CV21-6022016-S : SUPERIOR COURT
:
IRONHORSE AUTO, LLC d/b/a : J.D. OF WINDHAM
CENTRAL HYUNDAI :
:
VS. : AT PUTNAM
:
BRENT MATTSON : DECEMBER 21, 2023
MOTION FOR ATTORNEYS’ FEES
Pursuant to rule 11-21 of the Practice Book, and upon the authority of the
Connecticut Supreme Court’s decision in Lederle v. Spivey, 332 Conn. 837 (2019), the
defendant, Brent Mattson, hereby moves for an order directing the plaintiff and/or its
counsel to pay the attorneys’ fees associated with the defendant’s successful defense of
this matter, on the grounds that the plaintiff’s claims were not colorable and were pursued
in bad faith.
Mr. Mattson was a valued employee of the plaintiff who left the company and
joined a competitor. In the words of this court (Lohr, J.), there was “no evidentiary
foundation”1 for the plaintiff to pursue litigation against him, but no matter: the plaintiff
saw an opportunity to punish him and perhaps harm his relationship with his new boss.
So, the plaintiff sued him anyway, and forced him to litigate the case to judgment.
The court’s observation of “no evidentiary foundation,” in the context of its
summary judgment ruling for Mr. Mattson, was as far as the court needed to go. But as
1
Memorandum of Decision Granting Defendant’s Motion for Summary Judgment,
November 21, 2023 (162.00) (“MOD”), p. 12.
explained herein, the deficiencies in the plaintiff’s case are so profound, and
demonstrably known to be so by the plaintiff and its counsel, that the court should take
the further step of concluding this action was commenced and pursued in bad faith. That
conclusion is compelled by the following:
(a) The premise of this case was that Mr. Mattson, after improperly obtaining
access to the plaintiff’s proprietary “dealer management” computer system (“DMS”),
made active use of that access to improperly solicit the plaintiff’s customers. But the
plaintiff never identified an iota of evidence that Mr. Mattson improperly viewed or took
any such customer data, or solicited the plaintiff’s customers.
(b) The plaintiff deposed Mr. Mattson at an unusually early stage of the case:
barely two (2) months after the return date (return date June 15, 2021; deposition date,
August 20, 2021). At that time, he fully explained the situation, namely that, as this court
found in the MOD:
Hyundai Motor America maintains a computer system accessible to Hyundai
dealers through www.hyundaidealer.com2;
The plaintiff maintains an entirely separate computer system, the “CDK dealer
management system,” which “would include the plaintiff’s proprietary
information relating to customers” 3;
2
MOD at 10.
3
Id. at 8.
2
“The admissible record is clear and undisputed that the defendant had inadvertent
access to the plaintiff’s employee training history through hyundaidealer.com” 4;
but
“Nothing in the admissible record suggests that the defendant ever had access
to—or ever attempted to access—the plaintiff’s proprietary information on CDK,
the dealer management system.5”
The court went on to find:
The defendant’s deposition testimony clearly identifies the difference between the
two computer systems at issue, and nowhere does the defendant admit to having
accessed plaintiff’s CDK.6
The plaintiff had this information in August of 2021, never obtained competent evidence
to the contrary, but stubbornly subjected Mr. Mattson to further prosecution of this matter
for another two (2) years, based on the entirely fabricated theory that he hacked the
plaintiff’s CDK system and stole customer data.
(c) From the start of the case, the plaintiff persisted in alleging that due to
alleged misconduct on the part of Mr. Mattson, “numerous customers ceased doing
business with the plaintiff.” This was a fabrication: the plaintiff never identified a single
such customer.
4
MOD at 9.
5
Id.
6
Id.
3
For these reasons, as elaborated below, the defendant seeks an award of attorneys’
fees.
I. The plaintiff’s allegations; procedural history.
The plaintiff brought this action by a writ and complaint dated May 19, 2021, and
returnable on June 15, 2021. The original Complaint was in nine (9) counts, one of
which was dropped in the plaintiff’s Revised Complaint (108.00). In the MOD, the court
summarized the plaintiff’s factual allegations as follows:
The plaintiff is a full-service Hyundai automobile dealer which has been
operating in Plainfield since October 2007. In August 2019, plaintiff hired the
defendant, Brent Mattson, as its service manager. The defendant, like most of the
plaintiff’s employees, had limited access to the plaintiff’s dealer management
“CKD”7 system, which contains proprietary information relating to customers and
employees, dealership inventory and finances, as well as service transactions.
The defendant’s limited access to the plaintiff’s dealer management CKD system
allowed for entering service appointment and transaction information. Only one
employee, as administrator, had full access to the plaintiff’s CKD system. On
March 9, 2021, the defendant informed David Cartwright, owner of the plaintiff
dealership, that he would be resigning in favor of another job. The resignation
became effective that afternoon, and the defendant’s access to the dealer
management system and his work email were shut down immediately. By March
10 or March 11, 2021, the defendant joined Wile Hyundai (Wile), a direct
competitor of the plaintiff, as its service manager.
The plaintiff has alleged that on March 12, 2021, at 11:17 a.m., the defendant
called Hyundai Motor America, the subsidiary of the Hyundai Motor Company
that oversees the company’s North American operations, misrepresenting himself
as an employee of the plaintiff, and requested full administrator access to the
plaintiff’s CKD dealer management system. Allegedly, in violation of its own
7
Mr. Mattson’s deposition testimony (and later references in the MOD) identified the
dealer system as “CDK,” not “CKD.” This portion of the MOD includes the recurring
scrivener’s error “CKD.”
4
protocols, Hyundai Motor America gave the defendant access to the plaintiff’s
dealer management system. The defendant allegedly maintained unfettered
access to the dealer management system until 9:58 a.m. on April 2, 2021, when
the plaintiff was made aware of the access and requested Hyundai Motor America
shut it down.8
All counts of the Complaint and Revised Complaint were built on this common
core of factual allegations. In the plaintiff’s claims for tortious interference (Revised
Complaint, Count Six) and violations of CUTPA (Revised Complaint, seventh count,
misnumbered as Count Eight), the plaintiff further alleged:
that Mr. Mattson “used the information he obtained surreptitiously from Hyundai
Motor America to contact current and/or former customers of the Plaintiff,
thereby intentionally interfering with the contractual and beneficial relationship
established by the Plaintiff with its customers” 9; and
“As a result of Defendant Brent Mattson’s intentional interference with the
Plaintiff’s business relationship with its customers, numerous customers ceased
doing business with the Plaintiff.”10
Mr. Mattson held the plaintiff’s feet to the fire on its allegation that he had
somehow caused “numerous customers [to] cease[] doing business with the Plaintiff.”
As detailed in Mr. Mattson’s Memorandum of Law in Support of Motion for Summary
Judgment (150.00) (“MSJ Memo”), p. 9, after a compliance order by this court, the
8
MOD at 1, 2.
9
Revised Complaint, Counts Six and “Eight,” ¶ 44.
10
Id., ¶ 45.
5
plaintiff eventually identified one (1) “lost” customer, AB Transportation, LLC. This
disclosure was made in September of 2022, sixteen (16) months into the case, while the
operative Revised Complaint still maintained the plaintiff had lost “numerous”
customers.
Worse yet, as also pointed out in Mr. Mattson’s MSJ Memo, the plaintiff’s own
documents made a mockery of the claim that even that one customer “ceased doing
business” with it: after Mr. Mattson left the plaintiff’s employ, AB Transportation
purchased two (2) vehicles from the plaintiff, and brought in vehicles for service
appointments numerous times.11
We will not mince words: the plaintiff’s persistent allegation of “numerous
customers [that] ceased doing business with the Plaintiff” was a lie. Actually, two lies:
one for “numerous,” and another for “ceased.”
Two (2) counts of the Revised Complaint were stricken via an order partially
granting Mr. Mattson’s Motion to Strike (109.10). Mr. Mattson later moved for summary
judgment on the remaining six (6) counts of the Revised Complaint (motion at 149.00;
MSJ Memo at 150.00). As noted in the MOD, the plaintiff conceded summary judgment
on three (3) of those counts12, and so the parties argued the motion as to counts four
11
MSJ Memo at 9, 10.
12
MOD at 4.
6
(breach of fiduciary duty), five (breach of employee duty of loyalty) and eight (CUTPA)
of the Revised Complaint.13
The court issued its MOD granting Mr. Mattson summary judgment on November
21, 2023. As quoted above, the court found, “Nothing in the admissible record suggests
that the defendant ever had access to—or ever attempted to access—the plaintiff’s
proprietary information on CDK, the dealer management system.” (Emphasis added.)
As for AB Transportation, the court further found, “there is no evidence that the
defendant improperly solicited their business with the use of proprietary information
accessed through the plaintiff’s dealer management system.” 14 (Emphasis added.) This
finding was bolstered by the affidavit of AB’s owner, Joshua Brown, who averred, “I had
no advance notice that [the defendant] planned to leave [the plaintiff’s employ].... He
never contacted me to tell me that he had left or that he had joined Wile…” 15
As noted, the plaintiff’s own business records show that AB Transportation
continued to patronize the plaintiff, regularly, after Mr. Mattson’s departure. That is,
they had an ongoing business relationship with Mr. Brown, and plenty of opportunity to
ask him: what happened with Brent? But that would be only if the plaintiff had been
interested in the truth.
13
MOD at 4.
14
Id. at 10.
15
Id.
7
II. Mr. Mattson’s deposition testimony; the plaintiff’s failure to follow up.
Mr. Mattson set the record straight more than two (2) years ago, at his deposition
on August 20, 2021. As this court noted, he testified that he “never called Hyundai
Motor America looking to access the plaintiff’s dealer management system … at no point
did he ever have unfettered access to the dealer management system, he does not know
how to obtain such access, and the only information he ever saw was related to employee
training history accessible through hyundaidealer.com.” 16 And the plaintiff never
developed a shred of admissible evidence to counter any of this.
The court also quoted, and credited, Mr. Mattson’s detailed testimony about the
difference between the Hyundai Motor America database and the plaintiff’s database:
The defendant’s deposition testimony clearly identifies the difference between the
two computer systems at issue, and nowhere does the defendant admit to having
accessed plaintiff’s CDK:
“Q: And now how does hyundaidealer.com differ from CDK?
“A: CDK is where all repair information is stored. Customer’s concerns,
customer’s information, regardless of year, make and model of the vehicle.
***
“Q: When you say you could see training, where were you seeing it?
“A: In the Hyundai learning portal.
“Q: And the Hyundai learning portal is part of what program?
“A: Hyundaidealer.com. It has its own website. You get to it through its website.
“Q: It is not part of CDK?
16
MOD at 7, 8.
8
“A: No.”17
Thus, even if we were to indulge the proposition that the plaintiff had some good-
faith basis to commence the suit, the record is clear that at the very start of the case, the
plaintiff was put on notice of the fallacy in its narrative. Yet it is clear that in the ensuing
almost twenty (20) months – the timeframe between Mr. Mattson’s deposition in October
2021 and the plaintiff’s June 6, 2023, filing of opposition papers to his MSJ – the plaintiff
made no effort to verify its story.
The plaintiff’s opposition papers included two affidavits: by the plaintiff’s owner,
David Cartwright (159.00) and by its employee Ellen Jones (160.00). At the summary
judgment hearing, the plaintiff’s counsel “conceded – as he must” that those affidavits
were “inadmissible hearsay,”18 and accordingly the court gave them no weight in
opposition to Mr. Mattson’s MSJ. But for present purposes, those inadmissible affidavits
are quite telling.
The Jones Affidavit relies entirely on a purported telephone call with an
unidentified person at Hyundai Motor America, which supposedly took place on April 2,
2021 (before the commencement of suit), and a document called “DMS Account
History,” which purportedly refers to certain electronic events between March 9, 2021,
and April 2, 2021. The mystery person at HMA supposedly told Ms. Jones that Mr.
17
MOD at 9, 10.
18
MOD at 9.
9
Mattson “had had unauthorized access to the system administrator level” in the plaintiff’s
Dealer Management System. (Jones Affidavit, ¶ 13.) There is no indication that that
person ever told Ms. Jones that Mr. Mattson actually made use of his supposed access –
or even knew about it.
As noted, at his deposition, Mr. Mattson rebutted the allegation that he ever had
had unauthorized access to the plaintiff’s DMS. That put the plaintiff on notice that it
had some work to do. But the Jones Affidavit does not reflect any attempt to gather,
verify, discount, update or supplement its information – not after Mr. Mattson’s
deposition testimony, nor indeed at any time after April 2, 2021, pre-suit. Inexplicably,
the plaintiff chose to rest on stale, vague, unverified, contested information from an
unidentified person, and rely on an affidavit that any law student who got at least a C+ in
“Evidence” would recognize as clear-cut hearsay.
The Cartwright Affidavit suffers from the same infirmity, as to the plaintiff’s
critical contention that Mr. Mattson unlawfully gained access to its computer system. On
that subject matter, Mr. Cartwright refers to the Jones Affidavit (making this part of his
affidavit double hearsay) and his own emails, from March of 2021, which also were
riddled with hearsay. Once again, there is no indication that the plaintiff made even the
slightest effort to get its facts straight, or present a credible MSJ opposition to this court.
10
III. Legal standard and argument.
It is axiomatic that under the so-called American Rule, “the prevailing litigant is
ordinarily not entitled to collect a reasonable [attorney’s] fee from the loser.” Lederle v.
Spivey, 332 Conn. 837, 843, 844 (2019). But the rule is subject to a significant
exception:
That rule does not apply, however, where the opposing party has acted in bad
faith.... It is generally accepted that the court has the inherent authority to assess
attorney’s fees when the losing party has acted in bad faith, vexatiously, wantonly
or for oppressive reasons.... This bad faith exception applies, not only to the filing
of an action, but also in the conduct of the litigation.... It applies both to the party
and his counsel.
Id. at 844 (citation and internal punctuation omitted). The court went on to observe, “in
order to impose sanctions under the bad faith exception, the trial court must find both that
the litigant’s claims were entirely without color and that the litigant acted in bad faith.”
Id. (citation and internal punctuation omitted).
The first prong of the analysis, colorability, is an objective standard, which
“focuses on the merits of the claim. … [A] claim is colorable, for the purpose of the bad
faith exception, when it has some legal and factual support, considered in light of the
reasonable beliefs of the individual making the claim … Put simply, the colorability
inquiry asks whether there is a reasonable basis, given the facts, for bringing the claim...”
Id. at 845 (citations and internal punctuation omitted).
The second prong of the analysis, bad faith, “by contrast, rather than focusing on
the objective, reasonable beliefs of the person against whom sanctions are sought, focuses
11
on subjective intent.” Id. at 845. The court is not required to conduct a mind-reading
exercise. “[I]n determining whether a party has engaged in bad faith, the appropriate
focus for the court is the conduct of the party in instigating or maintaining the litigation.
From that conduct, the court may infer the subjective intent of the person against whom
sanctions are sought.” Id. (citation and internal punctuation omitted). A claim of bad
faith may be “predicated on the individual’s personal knowledge that there is no factual
support for the claim or claims at issue,” if the court “make[s] a finding that the
individual knew of the absence of that factual basis.” Id. at 846.
The trial court’s findings in this regard must have “a high degree of specificity,”
but the court need not “separately indicate which factual findings relate to which prong,
colorability or bad faith … Frequently, the subordinate factual findings that support bad
faith will also provide support for lack of colorability.” Id. at 848, fn. 8.
We note again that the bad faith exception applies “not only to the filing of an
action, but also in the conduct of the litigation.” Id. at 844.
The record in this case provides overwhelming support for the conclusion that the
“bad faith” exception applies here. The plaintiff and its attorneys had no reasonable basis
for commencing this action, and knew that that was so. This became even clearer after
Mr. Mattson’s deposition, and the plaintiff’s maintenance of this action after that
deposition was also in bad faith. This is true for the following reasons.
12
1. The unverified alleged conversation between “someone” at HMA and the
plaintiff’s employee Ellen Jones.
It is apparent that the trigger for this lawsuit was an alleged phone conversation
between the plaintiff’s employee Ellen Jones and someone at Hyundai Motor America,
from which Ms. Jones supposedly was led to believe that Mr. Mattson “had had access to
the system administrator level in Central Hyundai’s DMS,” and “wrongfully had access”
to that system.”19 Notably, the (inadmissible, hearsay-laden) Jones Affidavit identifies
the counterparty to the conversation as “someone” – not by name.
From this, there are only two (2) possible inferences that can be drawn, and both
are extremely damning to the plaintiff. One is that the plaintiff genuinely does not know
who the HMA person was, and is unable to confirm that person’s identity. If that is the
case, then the plaintiff launched and maintained this action based on the say-so of an
anonymous person, whose job title, duties, knowledge, experience, competence, honesty
and biases are unknown and unknowable. Nor would the plaintiff be able to fulfill its
basic litigation duty of making a critical witness available for deposition. Then, once Mr.
Mattson blew up those allegations at his deposition, the plaintiff was unable to follow up
with its alleged source. It would be reckless in the extreme to sue on the basis of such a
tissue-paper-thin foundation, but here we are.
The other possible inference is that the plaintiff does know the identity of HMA
Employee X, but has willfully concealed that person’s identity, for the plaintiff’s own
19
Jones Affidavit (159.00), ¶¶ 12, 13.
13
reasons. Either way, the plaintiff’s reliance on the content of the Jones Affidavit as the
basis for this suit is unconscionable.
2. The plaintiff’s leap from “Brent had access to the system” to “Brent stole
customer data and wrongfully solicited customers.”
As we have noted, Ms. Jones claimed in her affidavit that HMA Employee X told
her Mr. Mattson “had access” to the plaintiff’s Dealer Management System. But
“having” access, in and of itself, means nothing, and by no stretch of the imagination
does it support the inference of making use of that access. (As we analogized in an
earlier filing in this case, just because someone supposedly had access to the car keys
doesn’t mean they actually drove the car.)
As we have already argued, the plaintiff had no good cause to rely on the unverified,
anonymous allegation that Mr. Mattson wrongfully “had access” to the plaintiff’s computer
system. But it is even clearer, much clearer, that the plaintiff lacked any basis whatsoever
to then build a narrative that Mr. Mattson availed himself of that “access” by logging in,
zeroing in on customer data and then targeting the plaintiff’s customers. (One would expect
the plaintiff in a case of this type to consult with a forensic computer expert to either
confirm or debunk its suspicions.) But as to these crucial allegations, the plaintiff has
identified no evidence whatsoever. They made it all up.
As noted, in the earliest stages of the case, at the Mattson deposition, the plaintiff
was put on notice that he vigorously disputed the entire premise of this lawsuit, and that it
14
needed to identify support for its claims. No such support has ever been produced.
To state the obvious, litigation parties are not allowed to simply make stuff up. But
that is what happened here.
3. The plaintiff’s persistent, false allegation that “numerous customers ceased
doing business with the plaintiff.”
We have already made the point: the plaintiff made this up, too. “Numerous”:
false. “Ceased”: false. It was false at the start of the case, it was false at the end of the case,
and obviously the plaintiff knows who its customer are, so the falsehood was deliberate.
Specific to AB Transportation, the only identified customer: we already made this
point as well. The plaintiff’s own sales records eviscerate its claim, and Mr. Brown’s
continued patronage of the plaintiff gave it every opportunity to go right to the source and
ask him if Mr. Mattson had solicited him. Apparently, the plaintiff didn’t bother, and Mr.
Brown’s affidavit unequivocally established the contrary.
IV. Conclusion.
Based on the foregoing, the defendant respectfully submits the following:
(a) The plaintiff’s claims against him lacked color, in that there was no reasonable basis
for bringing and maintaining those claims against him.
(b) Based on the conduct of the plaintiff and its counsel in bringing and maintaining this
action against him, the court can and should infer their subjective intent, namely that
15
they had personal knowledge of the lack of factual support for the plaintiff’s claims,
and therefore acted in bad faith.
(c) The defendant has established the elements of the “good faith exception” to the
American Rule, such that the plaintiff and/or its counsel should be required to pay
the legal fees associated with his defense of this matter.
(d) The defendant has provided the court with examples that will allow it to support its
conclusion with the requisite “high degree of specificity.”
The defendant requests that the court make a threshold finding that fee-shifting
applies in this case, and allow the defendant to then submit and document the amount of the
claim.
DEFENDANT,
BRENT MATTSON
By 403444
William J. O’Sullivan
O’Sullivan McCormack Jensen & Bliss PC
180 Glastonbury Boulevard, Suite 210
Glastonbury, CT 06033
Phone: (860) 258-1993
Fax: (860) 258-1991
wosullivan@omjblaw.com
Juris # 407344
His Attorneys
16
CERTIFICATION
I hereby certify that on December 21, 2023, a copy of the above was or will
immediately be mailed or delivered electronically or non-electronically 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.
Service list:
John Wolfson, Esq.
Feiner Wolfson LLC
One Constitution Plaza
Hartford, CT 06103
jwolfson@feinerwolfson.com
403444
William J. O’Sullivan
17
Preview
DOCKET NO.: WWM-CV21-6022016-S : SUPERIOR COURT : IRONHORSE AUTO, LLC d/b/a : J.D. OF WINDHAM CENTRAL HYUNDAI : : VS. : AT PUTNAM : BRENT MATTSON : DECEMBER 21, 2023 MOTION FOR ATTORNEYS’ FEES Pursuant to rule 11-21 of the Practice Book, and upon the authority of the Connecticut Supreme Court’s decision in Lederle v. Spivey, 332 Conn. 837 (2019), the defendant, Brent Mattson, hereby moves for an order directing the plaintiff and/or its counsel to pay the attorneys’ fees associated with the defendant’s successful defense of this matter, on the grounds that the plaintiff’s claims were not colorable and were pursued in bad faith. Mr. Mattson was a valued employee of the plaintiff who left the company and joined a competitor. In the words of this court (Lohr, J.), there was “no evidentiary foundation”1 for the plaintiff to pursue litigation against him, but no matter: the plaintiff saw an opportunity to punish him and perhaps harm his relationship with his new boss. So, the plaintiff sued him anyway, and forced him to litigate the case to judgment. The court’s observation of “no evidentiary foundation,” in the context of its summary judgment ruling for Mr. Mattson, was as far as the court needed to go. But as 1 Memorandum of Decision Granting Defendant’s Motion for Summary Judgment, November 21, 2023 (162.00) (“MOD”), p. 12. explained herein, the deficiencies in the plaintiff’s case are so profound, and demonstrably known to be so by the plaintiff and its counsel, that the court should take the further step of concluding this action was commenced and pursued in bad faith. That conclusion is compelled by the following: (a) The premise of this case was that Mr. Mattson, after improperly obtaining access to the plaintiff’s proprietary “dealer management” computer system (“DMS”), made active use of that access to improperly solicit the plaintiff’s customers. But the plaintiff never identified an iota of evidence that Mr. Mattson improperly viewed or took any such customer data, or solicited the plaintiff’s customers. (b) The plaintiff deposed Mr. Mattson at an unusually early stage of the case: barely two (2) months after the return date (return date June 15, 2021; deposition date, August 20, 2021). At that time, he fully explained the situation, namely that, as this court found in the MOD: Hyundai Motor America maintains a computer system accessible to Hyundai dealers through www.hyundaidealer.com2; The plaintiff maintains an entirely separate computer system, the “CDK dealer management system,” which “would include the plaintiff’s proprietary information relating to customers” 3; 2 MOD at 10. 3 Id. at 8. 2 “The admissible record is clear and undisputed that the defendant had inadvertent access to the plaintiff’s employee training history through hyundaidealer.com” 4; but “Nothing in the admissible record suggests that the defendant ever had access to—or ever attempted to access—the plaintiff’s proprietary information on CDK, the dealer management system.5” The court went on to find: The defendant’s deposition testimony clearly identifies the difference between the two computer systems at issue, and nowhere does the defendant admit to having accessed plaintiff’s CDK.6 The plaintiff had this information in August of 2021, never obtained competent evidence to the contrary, but stubbornly subjected Mr. Mattson to further prosecution of this matter for another two (2) years, based on the entirely fabricated theory that he hacked the plaintiff’s CDK system and stole customer data. (c) From the start of the case, the plaintiff persisted in alleging that due to alleged misconduct on the part of Mr. Mattson, “numerous customers ceased doing business with the plaintiff.” This was a fabrication: the plaintiff never identified a single such customer. 4 MOD at 9. 5 Id. 6 Id. 3 For these reasons, as elaborated below, the defendant seeks an award of attorneys’ fees. I. The plaintiff’s allegations; procedural history. The plaintiff brought this action by a writ and complaint dated May 19, 2021, and returnable on June 15, 2021. The original Complaint was in nine (9) counts, one of which was dropped in the plaintiff’s Revised Complaint (108.00). In the MOD, the court summarized the plaintiff’s factual allegations as follows: The plaintiff is a full-service Hyundai automobile dealer which has been operating in Plainfield since October 2007. In August 2019, plaintiff hired the defendant, Brent Mattson, as its service manager. The defendant, like most of the plaintiff’s employees, had limited access to the plaintiff’s dealer management “CKD”7 system, which contains proprietary information relating to customers and employees, dealership inventory and finances, as well as service transactions. The defendant’s limited access to the plaintiff’s dealer management CKD system allowed for entering service appointment and transaction information. Only one employee, as administrator, had full access to the plaintiff’s CKD system. On March 9, 2021, the defendant informed David Cartwright, owner of the plaintiff dealership, that he would be resigning in favor of another job. The resignation became effective that afternoon, and the defendant’s access to the dealer management system and his work email were shut down immediately. By March 10 or March 11, 2021, the defendant joined Wile Hyundai (Wile), a direct competitor of the plaintiff, as its service manager. The plaintiff has alleged that on March 12, 2021, at 11:17 a.m., the defendant called Hyundai Motor America, the subsidiary of the Hyundai Motor Company that oversees the company’s North American operations, misrepresenting himself as an employee of the plaintiff, and requested full administrator access to the plaintiff’s CKD dealer management system. Allegedly, in violation of its own 7 Mr. Mattson’s deposition testimony (and later references in the MOD) identified the dealer system as “CDK,” not “CKD.” This portion of the MOD includes the recurring scrivener’s error “CKD.” 4 protocols, Hyundai Motor America gave the defendant access to the plaintiff’s dealer management system. The defendant allegedly maintained unfettered access to the dealer management system until 9:58 a.m. on April 2, 2021, when the plaintiff was made aware of the access and requested Hyundai Motor America shut it down.8 All counts of the Complaint and Revised Complaint were built on this common core of factual allegations. In the plaintiff’s claims for tortious interference (Revised Complaint, Count Six) and violations of CUTPA (Revised Complaint, seventh count, misnumbered as Count Eight), the plaintiff further alleged: that Mr. Mattson “used the information he obtained surreptitiously from Hyundai Motor America to contact current and/or former customers of the Plaintiff, thereby intentionally interfering with the contractual and beneficial relationship established by the Plaintiff with its customers” 9; and “As a result of Defendant Brent Mattson’s intentional interference with the Plaintiff’s business relationship with its customers, numerous customers ceased doing business with the Plaintiff.”10 Mr. Mattson held the plaintiff’s feet to the fire on its allegation that he had somehow caused “numerous customers [to] cease[] doing business with the Plaintiff.” As detailed in Mr. Mattson’s Memorandum of Law in Support of Motion for Summary Judgment (150.00) (“MSJ Memo”), p. 9, after a compliance order by this court, the 8 MOD at 1, 2. 9 Revised Complaint, Counts Six and “Eight,” ¶ 44. 10 Id., ¶ 45. 5 plaintiff eventually identified one (1) “lost” customer, AB Transportation, LLC. This disclosure was made in September of 2022, sixteen (16) months into the case, while the operative Revised Complaint still maintained the plaintiff had lost “numerous” customers. Worse yet, as also pointed out in Mr. Mattson’s MSJ Memo, the plaintiff’s own documents made a mockery of the claim that even that one customer “ceased doing business” with it: after Mr. Mattson left the plaintiff’s employ, AB Transportation purchased two (2) vehicles from the plaintiff, and brought in vehicles for service appointments numerous times.11 We will not mince words: the plaintiff’s persistent allegation of “numerous customers [that] ceased doing business with the Plaintiff” was a lie. Actually, two lies: one for “numerous,” and another for “ceased.” Two (2) counts of the Revised Complaint were stricken via an order partially granting Mr. Mattson’s Motion to Strike (109.10). Mr. Mattson later moved for summary judgment on the remaining six (6) counts of the Revised Complaint (motion at 149.00; MSJ Memo at 150.00). As noted in the MOD, the plaintiff conceded summary judgment on three (3) of those counts12, and so the parties argued the motion as to counts four 11 MSJ Memo at 9, 10. 12 MOD at 4. 6 (breach of fiduciary duty), five (breach of employee duty of loyalty) and eight (CUTPA) of the Revised Complaint.13 The court issued its MOD granting Mr. Mattson summary judgment on November 21, 2023. As quoted above, the court found, “Nothing in the admissible record suggests that the defendant ever had access to—or ever attempted to access—the plaintiff’s proprietary information on CDK, the dealer management system.” (Emphasis added.) As for AB Transportation, the court further found, “there is no evidence that the defendant improperly solicited their business with the use of proprietary information accessed through the plaintiff’s dealer management system.” 14 (Emphasis added.) This finding was bolstered by the affidavit of AB’s owner, Joshua Brown, who averred, “I had no advance notice that [the defendant] planned to leave [the plaintiff’s employ].... He never contacted me to tell me that he had left or that he had joined Wile…” 15 As noted, the plaintiff’s own business records show that AB Transportation continued to patronize the plaintiff, regularly, after Mr. Mattson’s departure. That is, they had an ongoing business relationship with Mr. Brown, and plenty of opportunity to ask him: what happened with Brent? But that would be only if the plaintiff had been interested in the truth. 13 MOD at 4. 14 Id. at 10. 15 Id. 7 II. Mr. Mattson’s deposition testimony; the plaintiff’s failure to follow up. Mr. Mattson set the record straight more than two (2) years ago, at his deposition on August 20, 2021. As this court noted, he testified that he “never called Hyundai Motor America looking to access the plaintiff’s dealer management system … at no point did he ever have unfettered access to the dealer management system, he does not know how to obtain such access, and the only information he ever saw was related to employee training history accessible through hyundaidealer.com.” 16 And the plaintiff never developed a shred of admissible evidence to counter any of this. The court also quoted, and credited, Mr. Mattson’s detailed testimony about the difference between the Hyundai Motor America database and the plaintiff’s database: The defendant’s deposition testimony clearly identifies the difference between the two computer systems at issue, and nowhere does the defendant admit to having accessed plaintiff’s CDK: “Q: And now how does hyundaidealer.com differ from CDK? “A: CDK is where all repair information is stored. Customer’s concerns, customer’s information, regardless of year, make and model of the vehicle. *** “Q: When you say you could see training, where were you seeing it? “A: In the Hyundai learning portal. “Q: And the Hyundai learning portal is part of what program? “A: Hyundaidealer.com. It has its own website. You get to it through its website. “Q: It is not part of CDK? 16 MOD at 7, 8. 8 “A: No.”17 Thus, even if we were to indulge the proposition that the plaintiff had some good- faith basis to commence the suit, the record is clear that at the very start of the case, the plaintiff was put on notice of the fallacy in its narrative. Yet it is clear that in the ensuing almost twenty (20) months – the timeframe between Mr. Mattson’s deposition in October 2021 and the plaintiff’s June 6, 2023, filing of opposition papers to his MSJ – the plaintiff made no effort to verify its story. The plaintiff’s opposition papers included two affidavits: by the plaintiff’s owner, David Cartwright (159.00) and by its employee Ellen Jones (160.00). At the summary judgment hearing, the plaintiff’s counsel “conceded – as he must” that those affidavits were “inadmissible hearsay,”18 and accordingly the court gave them no weight in opposition to Mr. Mattson’s MSJ. But for present purposes, those inadmissible affidavits are quite telling. The Jones Affidavit relies entirely on a purported telephone call with an unidentified person at Hyundai Motor America, which supposedly took place on April 2, 2021 (before the commencement of suit), and a document called “DMS Account History,” which purportedly refers to certain electronic events between March 9, 2021, and April 2, 2021. The mystery person at HMA supposedly told Ms. Jones that Mr. 17 MOD at 9, 10. 18 MOD at 9. 9 Mattson “had had unauthorized access to the system administrator level” in the plaintiff’s Dealer Management System. (Jones Affidavit, ¶ 13.) There is no indication that that person ever told Ms. Jones that Mr. Mattson actually made use of his supposed access – or even knew about it. As noted, at his deposition, Mr. Mattson rebutted the allegation that he ever had had unauthorized access to the plaintiff’s DMS. That put the plaintiff on notice that it had some work to do. But the Jones Affidavit does not reflect any attempt to gather, verify, discount, update or supplement its information – not after Mr. Mattson’s deposition testimony, nor indeed at any time after April 2, 2021, pre-suit. Inexplicably, the plaintiff chose to rest on stale, vague, unverified, contested information from an unidentified person, and rely on an affidavit that any law student who got at least a C+ in “Evidence” would recognize as clear-cut hearsay. The Cartwright Affidavit suffers from the same infirmity, as to the plaintiff’s critical contention that Mr. Mattson unlawfully gained access to its computer system. On that subject matter, Mr. Cartwright refers to the Jones Affidavit (making this part of his affidavit double hearsay) and his own emails, from March of 2021, which also were riddled with hearsay. Once again, there is no indication that the plaintiff made even the slightest effort to get its facts straight, or present a credible MSJ opposition to this court. 10 III. Legal standard and argument. It is axiomatic that under the so-called American Rule, “the prevailing litigant is ordinarily not entitled to collect a reasonable [attorney’s] fee from the loser.” Lederle v. Spivey, 332 Conn. 837, 843, 844 (2019). But the rule is subject to a significant exception: That rule does not apply, however, where the opposing party has acted in bad faith.... It is generally accepted that the court has the inherent authority to assess attorney’s fees when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons.... This bad faith exception applies, not only to the filing of an action, but also in the conduct of the litigation.... It applies both to the party and his counsel. Id. at 844 (citation and internal punctuation omitted). The court went on to observe, “in order to impose sanctions under the bad faith exception, the trial court must find both that the litigant’s claims were entirely without color and that the litigant acted in bad faith.” Id. (citation and internal punctuation omitted). The first prong of the analysis, colorability, is an objective standard, which “focuses on the merits of the claim. … [A] claim is colorable, for the purpose of the bad faith exception, when it has some legal and factual support, considered in light of the reasonable beliefs of the individual making the claim … Put simply, the colorability inquiry asks whether there is a reasonable basis, given the facts, for bringing the claim...” Id. at 845 (citations and internal punctuation omitted). The second prong of the analysis, bad faith, “by contrast, rather than focusing on the objective, reasonable beliefs of the person against whom sanctions are sought, focuses 11 on subjective intent.” Id. at 845. The court is not required to conduct a mind-reading exercise. “[I]n determining whether a party has engaged in bad faith, the appropriate focus for the court is the conduct of the party in instigating or maintaining the litigation. From that conduct, the court may infer the subjective intent of the person against whom sanctions are sought.” Id. (citation and internal punctuation omitted). A claim of bad faith may be “predicated on the individual’s personal knowledge that there is no factual support for the claim or claims at issue,” if the court “make[s] a finding that the individual knew of the absence of that factual basis.” Id. at 846. The trial court’s findings in this regard must have “a high degree of specificity,” but the court need not “separately indicate which factual findings relate to which prong, colorability or bad faith … Frequently, the subordinate factual findings that support bad faith will also provide support for lack of colorability.” Id. at 848, fn. 8. We note again that the bad faith exception applies “not only to the filing of an action, but also in the conduct of the litigation.” Id. at 844. The record in this case provides overwhelming support for the conclusion that the “bad faith” exception applies here. The plaintiff and its attorneys had no reasonable basis for commencing this action, and knew that that was so. This became even clearer after Mr. Mattson’s deposition, and the plaintiff’s maintenance of this action after that deposition was also in bad faith. This is true for the following reasons. 12 1. The unverified alleged conversation between “someone” at HMA and the plaintiff’s employee Ellen Jones. It is apparent that the trigger for this lawsuit was an alleged phone conversation between the plaintiff’s employee Ellen Jones and someone at Hyundai Motor America, from which Ms. Jones supposedly was led to believe that Mr. Mattson “had had access to the system administrator level in Central Hyundai’s DMS,” and “wrongfully had access” to that system.”19 Notably, the (inadmissible, hearsay-laden) Jones Affidavit identifies the counterparty to the conversation as “someone” – not by name. From this, there are only two (2) possible inferences that can be drawn, and both are extremely damning to the plaintiff. One is that the plaintiff genuinely does not know who the HMA person was, and is unable to confirm that person’s identity. If that is the case, then the plaintiff launched and maintained this action based on the say-so of an anonymous person, whose job title, duties, knowledge, experience, competence, honesty and biases are unknown and unknowable. Nor would the plaintiff be able to fulfill its basic litigation duty of making a critical witness available for deposition. Then, once Mr. Mattson blew up those allegations at his deposition, the plaintiff was unable to follow up with its alleged source. It would be reckless in the extreme to sue on the basis of such a tissue-paper-thin foundation, but here we are. The other possible inference is that the plaintiff does know the identity of HMA Employee X, but has willfully concealed that person’s identity, for the plaintiff’s own 19 Jones Affidavit (159.00), ¶¶ 12, 13. 13 reasons. Either way, the plaintiff’s reliance on the content of the Jones Affidavit as the basis for this suit is unconscionable. 2. The plaintiff’s leap from “Brent had access to the system” to “Brent stole customer data and wrongfully solicited customers.” As we have noted, Ms. Jones claimed in her affidavit that HMA Employee X told her Mr. Mattson “had access” to the plaintiff’s Dealer Management System. But “having” access, in and of itself, means nothing, and by no stretch of the imagination does it support the inference of making use of that access. (As we analogized in an earlier filing in this case, just because someone supposedly had access to the car keys doesn’t mean they actually drove the car.) As we have already argued, the plaintiff had no good cause to rely on the unverified, anonymous allegation that Mr. Mattson wrongfully “had access” to the plaintiff’s computer system. But it is even clearer, much clearer, that the plaintiff lacked any basis whatsoever to then build a narrative that Mr. Mattson availed himself of that “access” by logging in, zeroing in on customer data and then targeting the plaintiff’s customers. (One would expect the plaintiff in a case of this type to consult with a forensic computer expert to either confirm or debunk its suspicions.) But as to these crucial allegations, the plaintiff has identified no evidence whatsoever. They made it all up. As noted, in the earliest stages of the case, at the Mattson deposition, the plaintiff was put on notice that he vigorously disputed the entire premise of this lawsuit, and that it 14 needed to identify support for its claims. No such support has ever been produced. To state the obvious, litigation parties are not allowed to simply make stuff up. But that is what happened here. 3. The plaintiff’s persistent, false allegation that “numerous customers ceased doing business with the plaintiff.” We have already made the point: the plaintiff made this up, too. “Numerous”: false. “Ceased”: false. It was false at the start of the case, it was false at the end of the case, and obviously the plaintiff knows who its customer are, so the falsehood was deliberate. Specific to AB Transportation, the only identified customer: we already made this point as well. The plaintiff’s own sales records eviscerate its claim, and Mr. Brown’s continued patronage of the plaintiff gave it every opportunity to go right to the source and ask him if Mr. Mattson had solicited him. Apparently, the plaintiff didn’t bother, and Mr. Brown’s affidavit unequivocally established the contrary. IV. Conclusion. Based on the foregoing, the defendant respectfully submits the following: (a) The plaintiff’s claims against him lacked color, in that there was no reasonable basis for bringing and maintaining those claims against him. (b) Based on the conduct of the plaintiff and its counsel in bringing and maintaining this action against him, the court can and should infer their subjective intent, namely that 15 they had personal knowledge of the lack of factual support for the plaintiff’s claims, and therefore acted in bad faith. (c) The defendant has established the elements of the “good faith exception” to the American Rule, such that the plaintiff and/or its counsel should be required to pay the legal fees associated with his defense of this matter. (d) The defendant has provided the court with examples that will allow it to support its conclusion with the requisite “high degree of specificity.” The defendant requests that the court make a threshold finding that fee-shifting applies in this case, and allow the defendant to then submit and document the amount of the claim. DEFENDANT, BRENT MATTSON By 403444 William J. O’Sullivan O’Sullivan McCormack Jensen & Bliss PC 180 Glastonbury Boulevard, Suite 210 Glastonbury, CT 06033 Phone: (860) 258-1993 Fax: (860) 258-1991 wosullivan@omjblaw.com Juris # 407344 His Attorneys 16 CERTIFICATION I hereby certify that on December 21, 2023, a copy of the above was or will immediately be mailed or delivered electronically or non-electronically 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. Service list: John Wolfson, Esq. Feiner Wolfson LLC One Constitution Plaza Hartford, CT 06103 jwolfson@feinerwolfson.com 403444 William J. O’Sullivan 17