Free Trial Memo - District Court of Connecticut - Connecticut

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT _________________________________________ JOHN D. DARER, 4STRUCTURES.COM, LLC : CASE NO. 302 CV 1751 (MRK) d/b/a SUMMIT SETTLEMENT SERVICES, : : Plaintiffs, : : : v. : : : : : : :

EXHIBIT E

MARY WROBLESKI and LING WANG, Defendants. _______________________________________

DEFENDANT MARY WROBLESKI'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW Defendant Mary Wrobleski respectfully submits the following proposed findings of fact and conclusions of law. With respect to all of the foregoing "findings of fact," Ms. Wrobleski will rely primarily upon her trial testimony. When principal reliance also will be made on other testimony or exhibits, it is so noted. Nonetheless, Ms. Wrobleski believes that much of the testimony and exhibits introduced by the Plaintiffs supports her position, and she therefore designates the source of her primary reliance without prejudice to her reliance on such other testimony and exhibits. FIRST COUNT - COPYRIGHT INFRINGEMENT AS TO WROBLESKI FINDINGS OF FACT: 1. There is no proof that Ms. Wrobleski copied, distributed, disseminated, disclosed

and/or otherwise reproduced unauthorized copies of any copyrighted material owned by the Plaintiffs. 2. There is no proof that Ms. Wrobleski marketed or attempted to sell unauthorized

copies of any copyrighted material owned by the Plaintiffs. 3. Much of the information, business plans and other matter they claim as their

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proprietary intellectual property was copied from other businesses and websites in the public domain. Thus, it does not constitute the Plaintiffs' original work product capable of copyright protection. 4. There is no proof that Ms. Wrobleski wilfully infringed any copyrighted material

owned by the Plaintiffs. 5. There is no proof that the Plaintiffs have suffered any loss or damages resulting

from Ms Wrobleski's alleged infringement of their copyrighted materials. (Darer Testimony.) 6. Ms. Wrobleski did not disclose any copyrighted material to Viren Patel. (Viren

Patel deposition and/or testimony). 7. Ms. Wrobleski did not show any source code to Viren Patel. (Viren Patel

deposition and/or testimony). 8. Ms. Wrobleski did not publicly perform or publicly display any copyrighted

material owned by the Plaintiffs. 9. Plaintiffs. 10. Since prior to the time this action was commenced, Ms. Wrobleski no longer had Ms. Wrobleski did not disseminate any copyrighted material owned by the

in her possession any copyrighted material owned by the Plaintiffs. To the extent copyrighted material existed on Ms. Wrobleski's home computer or otherwise in her possession, she deleted that software off of her home computer after demand for return of the Plaintiffs' property was made, prior to the commencement of this litigation. 11. Since prior to the time this action was commenced, Ms. Wrobleski, individually

and through counsel, has expressed her abandonment of any claim to ownership of the software she wrote and/or designed for the Plaintiffs. Likewise, since prior to the time this action was commenced, Ms. Wrobleski has not threatened to copy or sell any software or other items that the Plaintiffs claim to be the subject of their copyright protect. 12. The Plaintiffs were motivated to bring this copyright claim by a desire to punish 2

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Ms. Wrobleski by forcing her to incur extensive attorney's fees in the hopes of financially harming her. (Darer Testimony, Wang Testimony). 13. 14. The Plaintiffs' copyright claim is factually unsupported. The Plaintiffs have attempted to stifle competition by prosecuting meritless

claims of copyright infringement. (Darer Testimony, Wang Testimony, Sybits complaint).

CONCLUSIONS OF LAW: 1. In the First Count, the Plaintiffs allege that Ms. Wrobleski "copied, distributed,

disseminated, disclosed and/or otherwise reproduced unauthorized copies of the Intellectual Property." See Amended Verified Complaint ¶ 116. The Plaintiffs further allege that Ms. Wrobleski marketed and attempted to sell unauthorized copies of the Plaintiffs' intellectual property. See Amended Verified Complaint ¶ 118. The Plaintiffs alleged that Ms. Wrobleski willfully infringed their rights. See Amended Verified Complaint ¶ 19. And, the Plaintiffs allege that Ms. Wrobleski's infringement "has caused, and will continue to cause damage to Darer's and 4Structures' business, goodwill, reputation and profits." See Amended Verified Complaint ¶ 120. Despite having signing a verified complaint swearing to each of these allegations, the Plaintiffs now withdraw almost this entire claim, undoubtedly because they neither had at the commencement of the case, nor were they able to ascertain during discovery, any evidence to support their false allegations. The only "copyright" infringement claim now pursued by the Plaintiffs is the frivolous allegation that Ms. Wrobleski infringed their copyright by allegedly briefly showing their website to Viren Patel. 2. While the Plaintiffs appear to contend that all aspects of their website are their

proprietaryk intellectual property that is subject to and is protected by the Copyright Act, the Act in fact protects only expression and not the underlying ideas encompassed in the Plaintiffs' intellectual property. Therefore, to the extent that the Plaintiffs claim they possess a unique business model, process or plan, such ideas cannot be copyrighted, and any claim of copyright 3

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infringement of such alleged intellectual property must be rejected. 3. "Copyright protection subsists in original works of authorship fixed in any

tangible medium of expression, however, this protection has never accorded copyright owner complete control over all possible uses of his work; rather, the Copyright Act grants the copyright holder exclusive rights to use and to authorize the use of his work in five [now six] qualified ways, including reproduction of copyrighted works in copies." Sony Corp. of America v. University City Studios, Inc., 464 U.S. 417, 433 (1984). 4. "To establish a claim of copyright infringement, a plaintiff must establish: (1)

ownership of a valid copyright; and (2) unauthorized copying of original elements of the plaintiff's work." Dun & Bradstreet Software Services, Inc. v. Grace Consulting, Inc., 307 F.3d 197, 206 (3d Cir. 2002) (citations omitted), cert. denied, 538 U.S. 1032 (2003). "Copying is a `shorthand reference to the act of infringing any of the copyright owner's five [now six] exclusive rights set forth at 17 U.S.C. § 106.'" Id. (citing Ford Motor Co. v. Summit Motor Products, Inc., 930 F.2d 277, 291 (3d Cir.1991), cert. denied, 502 U.S. 939 (1991)). 5. following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound records, to perform the copyrighted work publicly by means of a digital audio transmission. 17 U.S.C. § 106. 6. The Plaintiffs' claim of copyright infringement does not state a viable claim An owner of a copyright has the exclusive rights to do and to authorize any of the

because the Plaintiffs do not now even allege that Ms. Wrobleski unlawfully copied their 4

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website. See Feist Publications v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991) (in order to establish copyright infringement, plaintiff must prove "copying of constituent elements of the work that are original") (emphasis added). 7. At most, Ms. Wrobleski is alleged only to have invited Viren Patel to her home

and shown their website to him without their authority. Briefly showing a website to a single individual does not, as a matter of law, constitute a public performance. To the extent such a demonstration could constitute a public display, the display was so cursory and incomplete that it could constitute nothing more than a minimal "fair use" of the allegedly protected material. See 17 U.S.C. § 107 ("fair use" includes use for "comment"). Showing a prospective employer copyrighted material owned by another for the limited purpose of displaying one's work does not constitute copyright infringement, and even were such use questionable, it would constitute "fair use" of another's copyright. 8. Even if Ms. Wrobleski's showing of the website were found to constitute a

display or performance, it could not constitute the public performance or public display of copyrighted material necessary to support an infringement claim. 9. To perform or display a work "publicly" means: (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. 17 U.S.C. § 101. Far from being open to the public or at a place where a substantial number of persons are gathered, Ms. Wrobleski's alleged actions of displaying the website to Viren Patel occurred in the most private of places, her home. Any alleged unauthorized display or performance of the Plaintiffs' website in Ms. Wrobleski's home cannot be viewed as anything more than a completely private display or performance, even if it did constitute either. The 5

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Copyright Act provides a limited bundle of rights, and it simply does not protect such private actions. 10. Ms. Wrobleski has not made any unauthorized copies of the Plaintiffs' website

and, therefore, judgment on this claim must enter in favor of Ms. Wrobleski. 11. Even had Ms. Wrobleski somehow "copied" the Plaintiffs' website by showing it

to someone else, said copying would not have constituted a copyright infringement because the Plaintiffs do not hold a copyright protectable interest in the general characteristics of their website, that are shared by many websites. 12. The U.S. Constitution limits copyright protection to original works of authorship.

See Feist Publications, Inc. v. Rural Telephone Serv. Co., 499 U.S. 340, 345 (1991) (the "sine qua non of copyright is originality" and "[o]riginality is a constitutional requirement"). Copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity. Id. at 348. Although the Plaintiffs' website may provide them with a marketable tool in selling their services, there is nothing original about its functionality that warrants copyright protection other than the exact form of expression utilized by the Plaintiffs in, for example, the exact layout of their screen display or the compilation of their original and open source code. 13. "It is axiomatic that copyright does not protect ideas, but only expressions of

ideas." Whelan Associates v. Jaslow Dental Library, 797 F.2d 1222, 1234 (3d Cir. 1986), cert. denied, 479 U.S. 1031 (1987). "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." 17 U.S.C. § 102(b). Thus copyright law forces "a distinction between ideas and functional items (which are not protected) and creative, expressive works (which are)." See O.P. Solutions, Inc. v. Intellectual Property Network, Ltd., NO. 96 Civ. 7952 (LAP), 1999 WL 47191 at *8 (S.D.N.Y. Feb. 2, 1999) (citing Baker v. Selden, 101 U.S. 99, 103 (1879)). 6

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Thus, for example, the menu command hierarchy of a spreadsheet program is an unprotectable "method of operation" under 17 U.S.C. § 102(b). See Lotus Dev. Co. v. Borland, Inc., 49 F.3d 807 (1st Cir. 1995), aff'd, 516 U.S. 233 (1996). This concept precludes the Plaintiffs from claiming, as they do, that all aspects of their website are entitled to copyright protection. 14. "The merger doctrine ... restricts the realm of protectable material by recognizing

that although `expression' of an idea is entitled to protection, even expression is not protected in those instances where there is only one or so few ways of expressing an idea that protection of the expression would effectively accord protection to the idea itself." Id. (internal quotation marks omitted) (citing Gennessee Brewing Co. v. Stroh Brewing Co., 124 F.3d 137, 146 (2d Cir. 1997)). To the extent the Plaintiffs claim that the general layout of their website is protected by their copyright protection, such claim fails as a matter of law. 15. The scenes a faire doctrine "strips protection from expression made in the form of

stock features required by specifications of the computer itself and supported software, or by industry standards and customary programming practices." Id. at *8 (citations and internal quotation marks omitted). "The scenes a fair doctrine ... denies protection to stock devices that are either standard expressions within a particular industry or are standard programming techniques." Id. (quoting Harbor Software, Inc. v. Applied Sys. Inc., 925 F. Supp. 1042, 1048 (S.D.N.Y. 1996)). To the extent the Plaintiffs claim that the general layout of their website is protected by their copyright protection, such claim fails as a matter of law. 16. "Protection is not accorded to expressive elements taken from the public domain."

There is "no reason to make an exception to this rule for elements of a computer program that have entered the public domain." Id. at *9 (quoting Computer Assoc., Inc. v. Altai, Inc., 982 F.2d 693, 710 (2d Cir. 1992)). Almost all of the expressive elements of the Plaintiffs' website were taken from the public domain, as they are similar to the elements utilized by many websites and other computer programs. 17. In order to show an unlawful "distribution" of a copyrighted work pursuant to 17 7

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U.S.C. § 106(3), the Plaintiffs must show that an unlawful copy was disseminated "to the public." Hotalling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199, 203 (4th Cir. 1997). "Infringement of the distribution right requires an actual dissemination of ... copies." National Car Rental Sys. v. Computer Assocs. Int'l, Inc., 991 F.2d 426, 434 (8th Cir. 1993) (citing 2 Nimmer on Copyrights § 8.11[A], at 8-124.1), cert. denied, 510 U.S. 861 (1993). 18. The Plaintiffs are not entitled to injunctive relief because there is no threat of

infringement. Since prior to the commencement of this action, Ms. Wrobleski has abandoned any claim to ownership of their software or website. "Generally, a plaintiff must show the threat of [a] continuing violation in order to be entitled to injunctive relief." Peer Intern. Corp. v. Luna Records, Inc., 887 F. Supp. 560, 570 (S.D.N.Y. 1995) (internal citation omitted); see also Universal Studios, Inc. v. Sony Corp. of America, 659 F.2d 963, 976 (9th Cir. 1981) ("[A]s a general rule, a copyright plaintiff is entitled to a permanent injunction when liability has been established and there is a threat of continuing violations."), rev'd on other grounds, 464 U.S. 417 (1984). "When there is no probability or threat of continuing infringements, injunctive relief is ordinarily inappropriate." Harolds Stores, Inc. v. Dillard Department Stores, Inc., 82 F.3d 1533, 155 (10th Cir. 1996) (citing Nimmer & Ninner, § 14.06[B], at 14-97 to 14-98), cert. denied, 519 U.S. 928 (1996). Because Ms. Wrobleski does not have any of the Plaintiffs' allegedly copyright protected material in her possession, there is no possibility or threat that she will infringe the Plaintiffs' copyright. Indeed, no such possibility or threat existed even at the time the Plaintiffs' commenced this litigation. 19. Any alleged threat or probability that Ms. Wrobleski would infringe the Plaintiffs'

copyright ceased to exist in advance of the commencement of this litigation and, therefore, no injunctive relief ever was necessary. 20. "In any civil action under this title, the court in its discretion may allow the

recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to 8

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the prevailing party as part of the costs." 17 U.S.C. § 505. 21. Attorneys' fees should be awarded to Ms. Wrobleski on Plaintiffs' claim:

[T]he Supreme Court's decision in Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994), ... changed the standard in this circuit for determination of fee awards under the Copyright Act. 17 U.S.C. § 505 provides that, in any copyright infringement action, the court "in its discretion may allow the recovery of full costs by or against any party ... [and] may also award a reasonable attorney's fee to the prevailing party as part of the costs." In Fogerty, [the Supreme Court held] .... that prevailing plaintiffs and prevailing defendants must be treated alike for purposes of attorney's fee awards. 510 U.S. at ----, 114 S.Ct. at 1033. Attorney's fees are not to be awarded automatically to a prevailing party, the Court held, but "only as a matter of the court's discretion." Id. The Court noted that "[s]ome courts ... have suggested several nonexclusive factors" which "may be used to guide courts' discretion, so long as such factors are faithful to the purposes of the Copyright Act and are applied to prevailing plaintiffs and defendants in an evenhanded manner." Id. at ---- n. 19, 114 S.Ct. at 1033 n. 19. These factors include: "frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence." Id. (quoting Lieb v. Topstone Indus., Inc., 788 F.2d 151, 156 (3d Cir.1986)). Knitwaves, Inc. v. Lollytogs Ltd, 71 F.3d 996, 1011-12 (2d Cir. 1995). Ms. Wrobleski here is the prevailing party, and she is entitled to an award of her costs and attorney's fees because of the objectively unreasonable nature of the Plaintiffs' copyright claim and because of the improper motivation for the Plaintiffs' pursuit of this claim.

SECOND COUNT - BREACH OF CONTRACT FINDINGS OF FACT: 1. The Plaintiffs do not allege, and have not proven, any of the terms of the alleged

consulting agreement between Wrobleski and 4Structures other than that Ms. Wrobleski agreed to perform computer consulting services at a fixed hourly rate of $100 per hour commencing in or about January 2002. (Darer testimony). 2. From 1996 until in or about June 2001, Ms. Wrobleski and John Darer, the sole

owner of the Plaintiff 4Structures.com, enjoyed a strong friendship. The two first met through an internet dating service, Match.com. For many years, the two shared personal and professional 9

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problems and issues as part of their ongoing, devoted friendship. Indeed, as part of said friendship and in her attempt to assist John Darer in growing his business, Ms. Wrobleski assisted John Darer with many computer related problems and desires with respect to his structured settlement business. (Darer testimony). 3. As a result of their friendship, Ms. Wrobleski provided the Plaintiffs with advice

and assistance concerning their desire to build a website devoted to the structured settlement industry. Ms. Wrobleski devoted many hours to those endeavors. (Darer testimony). 4. Ms. Wrobleski first attempted to assist the Plaintiffs in accomplishing their goals

by working with a single programmer, Greg Bush, who would do programming for the Plaintiffs as a part-time evening job. When the Plaintiffs' needs expanded so that it was no longer realistic for a single, part-time individual to develop the Plaintiffs' project, Ms. Wrobleski ultimately introduced the Plaintiffs to her then employer, Smartspares d/b/a "Sybits." Simultaneously, the Plaintiffs budget also significantly expanded when the Plaintiffs finally realized the expense involved in developing a website that they wanted. (Darer testimony, Greg Bush testimony). 5. From in or about June 2001 to January 2002, the Plaintiffs engaged Sybits, and

Sybits successfully developed a website that first "went live" on the internet on or about August 15, 2000. (Darer testimony). 6. Sybits terminated Ms. Wrobleski's employment in September 2000, and the

Plaintiffs ultimately sought to retain Ms. Wrobleski to replace Sybits in further developing and maintaining their website. Although Ms. Wrobleski previously had provided all services free of charge to the Plaintiffs as part of their friendship, John Darer induced Ms. Wrobleski to become a paid computer consultant in or about January 2001 with the promise, among others, that the two eventually would become partners in this and other structured settlement industry software endeavors. (Darer testimony). 7. Thus, although contending that the Plaintiffs "engaged Wrobleski to provide

software development services" on or about January 2000, see Amended Verified Complaint ¶ 10

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31, at that time, Ms. Wrobleski provided such services free of charge, at her discretion and not pursuant to any contract. During said time period, Ms. Wrobleski performed services as a volunteer and friend of John Darer. No contract existed requiring Ms. Wrobleski to perform any services or requiring the Plaintiffs to provide any compensation at that time. Moreover, there were no other terms of a contract that could have supported a breach of contract claim, even had consideration existed for any agreement. (Darer testimony). 8. On or about January 2002, the Plaintiffs retained Ms. Wrobleski pursuant to a

simple oral contract. With respect to the scope of Ms. Wrobleski's services, the agreement was that Ms. Wrobleski would, at the Plaintiffs' request, perform software development services and be compensated at the rate of $100 per hour. The Plaintiffs ultimately requested that Ms. Wrobleski perform numerous types of consulting services, including but not limited to, interfacing with Dr. Wang and other potential programmers, regarding the development of their website, consulting with their lawyers regarding actual or potential litigations, and assisting the Plaintiffs with other computer or technology issues, including assisting them in locating other professionals. (Darer testimony, Wang testimony, Hayden Brainard testimony). 9. Any agreement between the Plaintiffs and Ms. Wrobleski did not contain specific

promises of results such that a breach of contract claim could be made for failure to meet such results, other than with respect to compensation. (Darer testimony). 10. Plaintiffs. 11. The Plaintiffs failed to pay Ms. Wrobleski in accordance with their agreement. Ms. Wrobleski satisfactorily performed all services requested of her by the

Darer testimony. 12. Ms. Wrobleski was not motivated by any desire to harm the Plaintiffs in taking

any actions with respect to her consulting relationship with the Plaintiffs. 13. Ms. Wrobleski has never taken any actions with respect to the Plaintiffs with an

intent or motivation to harm the Plaintiffs. To the contrary, all of Ms. Wrobleski's actions were 11

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motivated by a good faith desire to benefit the Plaintiffs and especially her former close friend, plaintiff John Darer.

CONCLUSIONS OF LAW: 1. "It is well established that the elements to form the basis of a breach of contract

claim are that there was a formation of an agreement, performance by one party, breach of the agreement by the other party and damages." Rosato v. Mascardo, 82 Conn. App. 396, 411 (2004) (citations and internal quotation marks omitted). Here, there is no evidence of an agreement with terms sufficient to support a breach of contract claim. 2. "It is a general rule of contract law that a total breach of the contract by one party

relieves the injured party of any further duty to perform further obligations under the contract." Rokalor, Inc. v. Connecticut Eating Enterprises, Inc., 18 Conn. App. 384, 391 (1989). Thus, because the Plaintiffs ultimately refused to pay Ms. Wrobleski for her services, they cannot claim that Ms. Wrobleski breached any agreement by refusing to continue to perform services. 3. Under the law of contracts, a promise is generally not enforceable unless it is

supported by consideration. See E. Farnsworth, Contracts (1982) § 2.9, p. 89; A. Corbin, Contracts (1963) § 193, p. 188; State National Bank v. Dick, 164 Conn. 523, 529 (1973). Therefore, there was no enforceable contract between Ms. Wrobleski and the Plainitffs until January 2002, at which time Ms. Wrobleski promised to perform services in exchange for the Plaintiffs' promise to compensate her at the rate of $100 per hour. Prior to that time, all of Ms. Wrobleski's services were the equivalent of a non-binding contractual gift. 4. While, in hindsight, the Plaintiffs may regret having hired Ms. Wrobleski because

of a falling out of their friendship or even because they no longer trust Ms. Wrobleski and are no longer confident of her competency, such regret does not support a breach of contract claim. 5. Exemplary damages may be awarded for breach of contract "only when the

breach is aggravated by particularly egregious conduct on the part of the defendant." L.F. Pace 12

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& Sons v. Travelers Indemnity Co., 9 Conn.App. 30, 48, cert. denied, 201 Conn. 811 (1986). 6. The Connecticut Supreme Court explained when recovery of punitive damages

for breach of contract is permissible in Triangle Sheet Metal Works, Inc. v. Silver, 154 Conn. 116 (1966): Punitive damages are not ordinarily recoverable for breach of contract. Restatement, 1 Contracts § 342; 5 Corbin, Contracts § 1077; McCormick, Damages § 81. This is so because, as lucidly reasoned by Professor Corbin in the passage cited, punitive or exemplary damages are assessed by way of punishment, and the motivating basis does not usually arise as a result of the ordinary private contract relationship. The few classes of cases in which such damages have been allowed contain elements which bring them within the field of tort. It is, of course, settled law that, in certain cases of tort, punitive or exemplary damages may properly be awarded. In Connecticut, however, recovery is limited to an amount which will serve to compensate the plaintiff to the extent of his expenses of litigation less taxable costs. **** The flavor of the basic requirement to justify an award of punitive or exemplary damages has been repeatedly described in terms of wanton and malicious injury, evil motive and violence. The Restatement declares that punitive damages may be awarded only for "outrageous conduct, that is, for acts done with a bad motive or with a reckless indifference to the interests of others." Restatement, 4 Torts § 908, comment (b). 154 Conn. at 127-28. 7. The Plaintiffs have neither alleged nor proven any tortious conduct sufficient to

justify punitive or exemplary damages for the alleged breach of contract. As a matter of law, even if the Plaintiffs' allegations of breach of contract were true, they would not constitute sufficiently egregious conduct to justify an award of exemplary damages.

THIRD COUNT - BREACH OF SETTLEMENT AGREEMENT FINDINGS OF FACT: 1. Ms. Wrobleski in no way has violated the Settlement Agreement as alleged in

paragraphs 46 and 47 of the Amended Verified Complaint. 13

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2.

Ms. Wrobleski has not interfered with the Plaintiffs' use and ownership of their

intellectual property. 3. Ms. Wrobleski has never taken any actions with respect to the Plaintiffs with an

intent or motivation to harm the Plaintiffs. To the contrary, all of Ms. Wrobleski's actions were motivated by a good faith desire to benefit the Plaintiffs and especially her former close friend, plaintiff John Darer.

CONCLUSIONS OF LAW: SEE ABOVE, CONCLUSIONS OF LAW WITH RESPECT TO 2nd COUNT. FOURTH COUNT - COMPUTER FRAUD AND ABUSE, 18 U.S.C. §§ 1030(a)(4) FINDINGS OF FACT: 1. Ms. Wrobleski has never accessed the Plaintiffs' website or other computers with

intent to defraud or without authorization. To the contrary, Ms. Wrobleski's intent each time she accessed the Plaintiffs' computer system was for the purpose of performing the tasks assigned to her by the Plaintiffs, for the benefit of the Plaintiffs. 2. Ms. Wrobleski never exceeded her authorized access with respect to the

Plaintiffs' website. 3. Ms. Wrobleski never accessed the Plaintiffs' website and obtained anything of

value from it. To the contrary, each time Ms. Wrobleski accessed the Plaintiffs' website, she intended to, and did, access the website for the purpose of imparting value to the Plaintiffs. 4. Even had Ms. Wrobleski accessed the Plaintiffs' website for an improper purpose

and otherwise sought to defraud the Plaintiffs, which she expressly denies, she did so only for the purpose of using the computer and the value of such use was less than $5,000. (Darer testimony, Plaintiffs' Detailed Information Regarding Claims for Damages). 5. Even had Ms. Wrobleski shown the Plaintiffs' website, the evidence is that she 14

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did so for the exclusive purpose of displaying and/or confirming her skills and work experience with Viren Patel, as Viren Patel testified that Ms. Wrobleski "showed me very briefly a few part of the system to give me an idea saying she has developed the system and she has knowledge of the structured settlement industry and pretty much to, like, basically establish a confidence that she is a capable person and she does know the business." Deposition of Viren Patel, p. 41. Mr. Patel further testified that the alleged demonstration of the Plaintiffs' website was "superficial," lasting "between five and ten minutes" and that it was "not in detail at all." Id. at p. 44. (Viren Patel deposition and/or testimony). 6. While Ms. Wrobleski was working with the Plaintiffs, there was no oral or written

agreement that precluded Ms. Wrobleski from providing similar consulting services to other individuals or companies (such as Mr. Patel's) within or without the structured settlement industry. 7. During the time period that Ms. Wrobleski is alleged to have shown the Plaintiffs'

website to Viren Patel, Ms. Wrobleski was not prohibited from utilizing the website as an example of her work for other potential employers. 8. Had Ms. Wrobleski shown the Plaintiffs' website to Viren Patel, her access to

Plaintiffs' website for this purpose was not gained without authority. CONCLUSIONS OF LAW: 1. As relevant to the Plaintiffs' claim, 18 U.S.C. § 1030(a)(4) provides: (a) Whoever ... (4) knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period ... shall be punished .... 2. Ms. Wrobleski is not liable for violation of 18 U.S.C. § 1030(a)(4) because her

proven conduct does not satisfy any of requirements for liability under this section. 15

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3.

Even had Ms. Wrobleski provided Viren Patel with limited access to the

Plaintiffs' website, the only evidence is that she provided a "superficial," short demonstration for between five and ten minutes, for the purposes of demonstrating her general knowledge of the industry and in order to gain Mr. Patel's confidence. Such conduct in no way can be said to have been intended to defraud the Plaintiffs. 4. Pursuant to 18 U.S.C. § 1030(g), the Plaintiffs do not state a claim upon which a

civil action may be based for violation of § 1030(a)(4) because the conduct did not cause, and if completed could not have caused, a loss of at least $5,000 in value.

FIFTH COUNT - COMPUTER FRAUD, 18 U.S.C. § 1030(a)(5)(B) FINDINGS OF FACT: 1. Ms. Wrobleski has never accessed the Plaintiffs' website without authorization.

She did, however, frequently access the Plaintiffs' computer system in order to accomplish the tasks assigned to her by the Plaintiffs. 2. 3. Testimony). 4. Even if Ms. Wrobleski accessed the Plaintiffs' website without authorization and Ms. Wrobleski never intended any fraud with respect to the Plaintiffs' website. Ms. Wrobleski never caused damage to the Plaintiffs' website. (Wang

caused damage, both of which accounts she expressly denies, any damaged caused would have been caused, at most, negligently, as an unintended consequence of Ms. Wrobleski's endeavors to complete the tasks assigned to her by the Plaintiffs. (Wang testimony). CONCLUSIONS OF LAW: 1. As relevant to the Plaintiffs' fifth count, 18 U.S.C. § 1030(a)(5)(B) provides: (a) Whoever ... (5)(B) by conduct described in clause (i), (ii), or (iii) of subparagraph (a), caused (or in the case of an attempted 16

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offense, would, if completed, have caused) -(i) loss to 1 or more persons during any 1-year period ... aggregating at least $5,000 in value ... shall be punished .... 2. Clauses (i), (ii), and (iii) of subparagraph (a) provide: (i) knowingly causes the transmission of a program, information, code or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer; (ii) intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damages; or (iii) intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage ... 3. Ms. Wrobleski is not liable for violation of 18 U.S.C. § 1030(a)(5)(B) because her

proven conduct does not satisfy any of requirements for liability under this section. 4. Ms. Wrobleski never caused damage, in any respect, to the Plaintiffs' website that

would support a claim of violation of 18 U.S.C. § 1030(a)(5)(B). 5. system. 6. Pursuant to 18 U.S.C. § 1030(e)(11), a "loss" means: any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of the interruption of service .... 7. The Plaintiffs did not experience a loss relating to the August 2002 "crash" of Ms. Wrobleski did not recklessly cause any damage to the Plaintiffs' computer

their computer system, because the reasonable cost to them of said "crash" did not exceed $5,000, as the Plaintiffs offer insufficient proof of lost revenues or costs. 8. In calculating the Plaintiffs' loss pursuant to 18 U.S.C. § 1030(e)(11), it is

improper for the Plaintiffs to include costs of increasing the security of their system.

SIXTH COUNT - COMPUTER FRAUD AND ABUSE, 18 U.S.C. § 1030(a)(5)(C) FINDINGS OF FACT: 17

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1.

Ms. Wrobleski never accessed the Plaintiffs' computer system or took any other

action adverse to the Plaintiffs' interests for the purpose of her own commercial advantage or private financial gain. To the contrary, all actions taken by Ms. Wrobleski with respect to the Plaintiffs' computer system were taken with the intention of benefitting the Plaintiffs. (Wang testimony). 2. Ms. Wrobleski did not cause any damage to the Plaintiffs' computer system,

recklessly or otherwise.

CONCLUSIONS OF LAW: 1. In pleading the Sixth Count of their complaint, the Plaintiffs appear to be replying

upon an outdated version of the statute, as the current version of the referenced statute does not contain a section 1030(a)(5)(C). 2. To the extent the Court deems this count a claim for "reckless" damages pursuant

to 18 U.S.C. § 1030(a)(5)(A)(ii) and (a)(5)(B)(i), Ms. Wrobleski respectfully incorporates the findings of fact and conclusions of law set forth above with respect to the Plaintiffs' fifth count.

SEVENTH COUNT - COMPUTER RELATED OFFENSE, CONN. GEN. STAT. § 52570b FINDINGS OF FACT: 1. Ms. Wrobleski never accessed the Plaintiffs' computer system without authority,

nor did she steal computer services or otherwise misuse the Plaintiffs' computer system information. 2. Ms. Wrobleski neither intentionally nor recklessly disrupted or caused the

disruption of the Plaintiffs' computer system. 3. Ms. Wrobleski did not intentionally and without authorization obtain and use data

she "knew or believed was obtained in violation of Conn. Gen Stat. § 53a-251 or (2) [sic]." See 18

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Amended Verified Complaint ¶ 162. 4. Ms. Wrobleski caused no damage to the Plaintiffs' computer system at any time.

CONCLUSIONS OF LAW: 1. Ms. Wrobleski did not violate Conn. Gen. Stat. § 52-570b, as the facts proven by

the Plaintiffs do not support liability under this section. 2. Had Ms. Wrobleski shown the Plaintiffs' website to Viren Pattel in the

superficial, brief matter contended by Mr. Patel, pursuant to Conn. Gen. Stat. § 53a251(b)(2)(B), Ms. Wrobleski reasonably could not have known that it was unauthorized for her to take said action. Therefore, Ms. Wrobleski cannot be found liable to the Plaintiffs. 3. Pursuant to Conn. Gen. Stat. § 52-570b(c), an award of treble damages would be

appropriate only if the Plaintiffs had pled and then proven "wilful and malicious conduct." The Plaintiffs have done neither. 4. The Plaintiffs are not prevailing parties within the meaning of Conn. Gen. Stat. §

52-570b(e), and they therefore are not entitled to reasonable costs and reasonable attorney's fees for their prosecution of this claim. To the contrary, Ms. Wrobleski is the prevailing party with respect to this claim and entitled to reasonable costs and reasonable attorney's fees. EIGHTH COUNT - CONNECTICUT UNIFORM TRADE SECRETS ACT FINDINGS OF FACT: 1. The Plaintiffs have a grossly inflated view of what trade secrets they possess.

(Darer testimony and, if necessary, Darer deposition testimony, Viren Patel deposition or testimony, Wang testimony). 2. Any information allegedly disclosed by Ms. Wrobleski when she is alleged to

have shown the Plaintiffs' website to Viren Patel does not constitute a trade secret. Said information allegedly disclosed to Viren Patel is generally known to other persons who can 19

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obtain economic value from its disclosure or use. (Wang testimony, Darer testimony, Viren Patel deposition or testimony). 3. The information allegedly disclosed to Viren Patel is readily ascertainable by

proper means. Although such information does not and cannot constitute a "secret" capable of trade secret protection, if such information were a secret, it has already been disclosed to many others without the Plaintiffs having attempted to maintain protection for said "secrets." (Darer testimony, Wang testimony). 4. Much of the information, business plans and other matters the Plaintiffs claim as

their proprietary intellectual property was copied from other businesses and websites in the public domain. (Wang testimony, Darer testimony). 5. The Plaintiffs did not use reasonable efforts to maintain the secrecy of their

website, as they allowed many to work on the website or view it. (Darer testimony, Wang testimony, Greg Bush testimony). 6. The information allegedly disclosed to Viren Patel is not the subject of efforts

that are reasonable under the circumstances to maintain its secrecy. Aside from commencing litigations to punish those who were unfortunate enough to have assisted the Plaintiffs in developing their website, the Plaintiffs have done little to protect said information. To the contrary, the Plaintiffs have voluntarily disclosed said information to third parties on numerous occasions without attempting to maintain its secrecy. (Darer testimony). 7. The Plaintiffs have displayed their website in sales demonstrations and marketing

efforts on numerous occasions. Had Ms. Wrobleski given Viren Patel a brief tour of the Plaintiffs' website, any information disclosed would have been no more than what is regularly disclosed by the Plaintiffs to others in their attempts to market and sell their services. (Darer testimony). 8. The Plaintiffs have shown their website to others without endeavoring to have

said individuals maintain the secrecy of their website. Said individuals include potential 20

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computer professionals they interviewed, their attorneys, their friends, their current and former consultants or employees, their clients, and their potential clients. (Darer testimony). 9. Prior to allowing Ms. Wrobleski or Dr. Wang to work on their website, the

Plaintiffs did not require either to sign a confidentiality agreement. (Darer testimony, Wang testimony). 10. Ms. Wrobleski did not misappropriate or assist others in misappropriating any

trade secret owned by the Plaintiffs. (Wang testimony, Viren Patel deposition or testimony). 11. The Plaintiffs have suffered no damages as a result of the alleged

misappropriation of trade secrets. (Darer testimony).

CONCLUSIONS OF LAW: 1. Under the Connecticut Uniform Trade Secrets Act, liability may be established

only if the Plaintiffs can prove the existence of a trade secret pursuant to Conn. Gen. Stat. § 3551(d) that has been misappropriated pursuant to Conn. Gen. Stat. § 35-51(b). 2. There is no support for the Plaintiffs' claim that any trade secret was

misappropriated because, as a matter of law, the general ideas behind their website are not trade secrets and because factually those ideas were not misappropriated. 3. Any information allegedly disclosed by Ms. Wrobleski during the brief

demonstration that she allegedly provided to Viren Patel would not have constituted a trade secret, as the layout and functions performed by the Plaintiffs' website do not constitute a trade secret. See IDX Systems Corp. v. Epic Systems Corp., 285 F.3d 581 (7th Cir. 2002) (the appearance of data-entry screens "are exceedingly hard to call trade secrets" because "things that any user or passer-by sees at a glance are `readily ascertainable by proper means'"; "a trade secret claim based on readily observable material is a bust"). 4. 5. The various pages of the Plaintiffs' website do not constitute trade secrets. Forms and expressions of ideas that have been registered with the Copyright 21

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Office and are readily available to the public do not constitute trade secrets. Therefore, the Plaintiffs' web pages cannot be trade secrets. See Air Support, Inc. v. Maurice Acuna, Inc., No. CV050148386S, 1996 WL 362097 at *2 (Conn. Super. May 26, 1996) (citing Robert S. Weiss & Associates, Inc. v. Weidlight, 208 Conn. 525 (1988)) ("An element of secrecy must exist to the extent that it would be difficult for someone else to acquire the information except by the use of improper means."). "There is not trade secret if the [information alleged to be a trade secret] can be readily ascertained through ordinary business channels or reference sources." Id. 6. "An employee has a right to grow with his experience, and he can carry away for

general use his skill and everything that he has learned at his place of employment, except trade secrets." Wentworth Laboratories, Inc. v. Probe 2000, Inc., No. CV020346892S, 2002 WL 31758350 at *2 (Conn. Super. Nov. 19, 2002) (quoting A.B.A., Trade Secrets: A State-by-State Survey (A. Pedowitz & R. Sikkel eds., 1997), p. 147). 7. Knowledge that is held by an average computer user after using a computer

program that might, itself, constitute a trade secret is not sufficient to state a claim for misappropriation of any trade secret embodied in a computer program. See Beer & Wine Services, Inc. v. Dumas, 2d Civil No. B151792, 2003 WL 1194725 (Cal. App. 2 Dist. Mar. 17, 2003). Even if the general idea for a computer program comes from an individual's experience with his or her former employer's trade secret protected program, general ideas about automating business processes, reporting and computerizing functions do not constitute trade secrets. Id. at *8. A defendant that is charged with a specious misappropriation claim premised upon the alleged theft of such a general idea is entitled to attorney's fees for his defense of such an action. Id. at *9. 8. Federal copyright law requires every applicant for a copyright to submit a copy of

the material to the Copyright Office. See 17 U.S.C. § 407, 408. Said submissions are open for public inspection. See 17 U.S.C. § 705(a), (b). The readily available access to the Plaintiffs' software through the Copyright Office precludes a finding that the web pages enjoy trade secret 22

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protection. The web pages also are readily available because anyone interested could simply express to the Plaintiffs interest in their services and thereby request and obtain a tour of the Plaintiffs' website from the Plaintiffs. Indeed, the Plaintiffs regularly market their services in such a manner. 9. Even had Ms. Wrobleski created a computer software package or website that

performed all of the same functions as those performed by the Plaintiffs' product, which she has not done, so long as she did not utilize the Plaintiffs' proprietary software code, there would be no trade secret violation. "Trade secret law does not offer protection against reverse engineering. Patent law gives protection against copying a product, but trade secret law does not." SNA, Inc. v. Array, 51 F. Supp.2d 554, 567 (E.D. Pa. 1999) (citing Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 476 (1974) and Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 160 (1989)), aff'd, 259 F.3d 719 (3d Cir. 2001). 10. The Plaintiffs have not taken reasonable efforts to protect and maintain the

secrecy of any information included within their website that otherwise might have been capable of trade secret protection. In addition to the Plaintiffs' sharing of their website with potential and actual customers, the Plaintiffs also shared such information with Ms. Wrobleski, Dr. Wang and many others without requiring the signing of a confidentiality agreement. See Jay's Custom Stringing, Inc. v. Yu, No. 01 Civ. 1690 (WHP), 2001 WL 761067 at *16 (S.D.N.Y. July 6, 2001) (former employee's access to alleged trade secrets without being required to sign any confidentiality agreement is inconsistent with an employer's subsequent claim that such information enjoys trade secret status). 11. The Plaintiffs have not suffered any loss for the alleged violation of their alleged

trade secrets, as there was no misappropriation. See Conn. Gen. Stat. § 35-53. 12. There has been no willful and malicious misappropriation and, therefore, the

Plaintiffs are not entitled to punitive damages or reasonable attorney's fees. See Conn. Gen. Stat. § 35-53(b). 23

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13.

Ms. Wrobleski is the prevailing party with respect to the Plaintiffs' claim of theft

of trade secrets. Therefore, she is entitled to her reasonable attorney's fees. See Conn. Gen. Stat. § 35-53(b). 14. The Plaintiffs have pursued their claim of misappropriation in bad faith, and Ms.

Wrobleski therefore is entitled to an award of reasonable attorney's fees. See Conn. Gen. Stat. § 35-54. TENTH COUNT - VIOLATION OF CONN. GEN. STAT. § 42-110a, et seq ("CUTPA") FINDINGS OF FACT: 1. The Plaintiffs do not allege any facts to support this claim other than the facts

alleged to support the preceding claims. Because the Plaintiffs' previously discussed claims fail as a matter of law or for want of any proof, the Plaintiffs also are not entitled to judgment on this claim.

CONCLUSIONS OF LAW: 1. Ms. Wrobleski respectfully incorporates the general conclusions of law regarding

CUTPA, set forth with respect to the Seventh Count of her Counterclaims, as if set forth herein. 2. None of Ms. Wrobleski's conduct with respect to the Plaintiffs constitutes unfair

competition or unfair trade practices in the conduct of business, trade or commerce or in the furnishing of services in Connecticut. 3. Ms. Wrobleski's actions were not immoral, oppressive, or unscrupulous, and they

did not cause substantial injury to the Plaintiffs. 4. Neither punitive damages nor attorney's fees should be awarded to the Plaintiffs.

TWELFTH COUNT - INTENTIONAL MISREPRESENTATION FINDINGS OF FACT: 24

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1.

Ms. Wrobleski did not misrepresent her academic or professional credentials to

the Plaintiffs. (Darer testimony). 2. To the extent Ms. Wrobleski described her skills as a computer consultant, said

description was made as a statement of opinion and not as a statement of fact. (Darer testimony). 3. Ms. Wrobleski informed plaintiff John Darer of her academic and professional

credentials in the context of discussions between friends in or around 1996. At the time Ms. Wrobleski informed Darer of her academic and professional accomplishments, Darer and ms. Wrobleski were either dating or good friends with no business relationship. In fact, for several years after Ms. Wrobleski and Mr. Darer met and became familiar with each other's past experiences and accomplishments, Ms. Wrobleski assisted Mr. Darer with computer issues and problems associated with his business free of charge. (Darer testimony). 4. No statements Ms. Wrobleski made concerning her credentials ever were made in

an attempt to induce the Plaintiffs' reliance so that the Plaintiffs would hire her. Indeed, the Plaintiffs did not even discuss hiring Ms. Wrobleski personally until approximately November or December 2001, approximately five years after Ms. Wrobleski met Darer. (Darer testimony). 5. At the time the Plaintiffs engaged Ms. Wrobleski to provide software

development services in December 2001 or January 2002, Ms. Wrobleski had been helping the Plaintiffs, sometimes occasionally and sometimes frequently, for approximately five years. The Plaintiffs based their decision to retain Ms. Wrobleski's more extensive, paid services, upon the years of friendship and dealings between Ms. Wrobleski and Darer. The Plaintiffs did not make the decision to retain Ms. Wrobleski in reliance upon her prior description of her credentials. (Darer testimony). 6. Ms. Wrobleski in good faith delivered competent computer consultant services to

the Plaintiffs during the entire time that she was working with the Plaintiffs, even though the Plaintiffs refused to pay for all of her time expended at first and eventually, near the conclusion of their relationship, unjustifiably denied her any compensation unless she signed a non-compete 25

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agreement. (Darer testimony, Wang testimony, Correspondence between counsel, draft work pay for hire agreements). 7. Ms. Wrobleski never made statements concerning her professional or academic

credentials, or statements concerning any other matters, in an attempt to defraud the Plaintiffs. 8. 9. Ms. Wrobleski never intended to violate any of the Plaintiffs' rights. By following Ms. Wrobleski's recommendations with respect to the development

of their website, the Plaintiffs greatly increased their revenues and profits. Thus, far from being harmed by their association with Ms. Wrobleski, the Plaintiffs' relationship with Ms. Wrobleski earned them, and continues to earn them, hundreds of thousands of dollars of profits. (Darer testimony, Darer tax returns).

CONCLUSIONS OF LAW 1. The statute of limitations for an action founded in misrepresentation or fraud is

three years. See Conn. Gen. Stat. § 52-577. Section 52-577 is an "occurrence statute" meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs. As the Supreme Court has stated: In construing our general tort statute of limitations, General Statutes § 52-577, which allows for an action to be brought within three years from the date of the act or omission complained of, we have concluded that the history of that legislative choice of language precludes any construction thereof delaying the start of the limitation period until the cause of action has accrued or the injury has occurred. Fichera v. Mine Hill Corp., 207 Conn. 204, 212 (1988) (citations and internal quotation marks omitted); see also McDonald v. Haynes Medical Laboratory, 192 Conn. 327, 330 (1984) ("Unlike the statutes of other jurisdictions which begin to run only after the cause of action has accrued, the Connecticut statutes of limitations for torts commence with the act or omission complained of, which is when the tortious conduct of the defendant occurs and not the date when the plaintiff first sustains damage or first discovery injury."). 26

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2.

Because the Plaintiffs' misrepresentation claims are premised upon alleged

statements made more than three years prior to the time they asserted those claims, as part of their Amended Verified Complaint dated August 29, 2003, those claims are time barred. Even if those claims were time, however, the Plaintiffs still would not be entitled to judgment. 3. The elements of a claim for intentional misrepresentation or fraud are that: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury." Parker v. Shaker Real Estate, Inc., 47 Conn. App. 489, 493 (1998). 4. "The party asserting [an intentional misrepresentation or fraud] cause of action

must prove the existence of the first three of these elements by a standard higher than the usual fair preponderance of the evidence, which higher standard we have described as `clear and satisfactory' or `clear, precise and unequivocal.'" Weisman v. Kaspar, 233 Conn. 531, 539-540 (1995) (citations omitted). 5. There is no support for the Plaintiffs' contention that Ms. Wrobleski

misrepresented or stated anything false about her academic or professional credentials. 6. Even if Ms. Wrobleski had overstated her expertise in the area of website

development, which is denied, overstating one's skill or expertise constitutes "nothing worse than permissible puffing" and is not actionable as fraud. See Bank Brussels Lambert, S.A. v. Intermetals Corp., 779 F. Supp. 741, 746 (S.D.N.Y. 1991); see also Charter Medical Management Co. v. Ware Manor, Inc., 159 Ga. App. 378, 383 (1981) (claim of fraud based upon defendant's alleged misrepresentation as to its expertise and experience failed, as the challenged statements were "mere commendation or `puffing' and plaintiff showed that it took no action to ascertain the truth thereof"). 7. Representing that one would meet the applicable standards of competency for an

occupation constitutes a malpractice or negligence claim, not a claim of misrepresentation. Clark v. Ward, No. X03CV990496095, 2002 WL 1150721 at *3 (Conn. Super. May 8, 2002). 27

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Moreover, were such a claim permissible, an expert would be required to prove the truth or accuracy of the alleged "misrepresentation" as compared to the defendant's competency. Id. Because no such expert has been offered on this issue, the Court cannot as a matter of law evaluate whether Ms. Wrobleski's skills met the standard of care appropriate for computer consultants. 8. In electing to retain Ms. Wrobleski's computer consulting services and pay for

them, to the extent the Plaintiffs relied upon statements made by Ms. Wrobleski to John Darer concerning her credentials, such reliance was unreasonable, as such statements were made in the context of their dating relationship or friendship and were not intended by Ms. Wrobleski to induce reliance. 9. Ms. Wrobleski never made statements to the Plaintiffs concerning her academic

or professional credentials for the purpose of inducing the Plaintiffs to act. 10. The Plaintiffs have not been damaged as a result of Ms. Wrobleski's alleged

misrepresentations. To the contrary, Ms. Wrobleski's recommendations and hard work, a large part of which she was uncompensated for, resulted in the Plaintiffs greatly increasing their income. Thus, the Plaintiffs have benefitted, rather than been harmed, by their retention of and relationship with Ms. Wrobleski. 11. "To support an award of punitive damages [premised upon a common law fraud

claim], the evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights." Sorrentino v. All Seasons Services, Inc., 245 Conn. 756, 778 (1998) (internal quotation marks omitted). A malicious and wanton injury justifying an award of punitive damages is one in which both the action producing the injury and the resulting injury were intentional. Markey v. Santangelo, 195 Conn. 76, 77 (1985).

THIRTEENTH COUNT - INTENTIONAL MISREPRESENTATION FINDINGS OF FACT: 28

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1.

Ms. Wrobleski respectfully incorporates the findings of fact related to the Twelfth

Count with respect to the Plaintiffs' allegations that Ms. Wrobleski, with intent to defraud, misrepresented her academic and professional credentials to the Plaintiffs. 2. Ms. Wrobleski respectfully incorporates the findings of fact related to the Twelfth

Count with respect to the Plaintiffs' allegation that they relied upon Ms. Wrobleski's alleged misrepresentations in engaging her services as a software developer. 3. To the extent the Plaintiffs' claim that Ms. Wrobleski recommended that the

Plaintiffs engage Greg Bush and vouched for his abilities, said allegation is not pled in their complaint and is false. 4. While Sybits, the company that worked on the development of the Plaintiffs'

website after Greg Bush, may have believed that Greg Bush's work did not constitute "any useful software," there is no evidence upon which to conclude that Greg Bush did not provide competent and useful computer programming services. (Greg Bush testimony). 5. There is no connection or reliance relationship, pled or existing in fact, between

Ms. Wrobleski's alleged misrepresentations concerning her credentials and the Plaintiffs' retention of Greg Bush. 6. At the time the Plaintiffs first retained Greg Bush, he and Ms. Wrobleski both

were employed by iSolve.com. During that time, John Darer requested Ms. Wrobleski's assistance in locating a software programmer willing to assist him in the development of the Plaintiffs' website. Ms. Wrobleski informed John Darer about the availability of Greg Bush to perform "moonlight" work, and John Darer requested that Ms. Wrobleski introduce the two of them. (Greg Bush testimony, Darer testimony). 7. 8. At the Plaintiffs' request, Ms. Wrobleski introduced Greg Bush to John Darer. At no time did Ms. Wrobleski recommend that the Plaintiffs retain Greg Bush,

nor did Ms. Wrobleski guarantee the competency of Greg Bush. (Darer testimony).

29

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CONCLUSIONS OF LAW: 1. Ms. Wrobleski respectfully incorporates the conclusions of law relating to the

Twelfth Count with respect to the Plaintiffs' legal claim that they have been damaged by Ms. Wrobleski's alleged misrepresentations. 2. To the extent Ms. Wrobleski expressed an opinion as to the competency of Greg

Bush to perform services for the Plaintiffs, said recommendation was an opinion and not a statement of fact. 3. To the extent the Plaintiffs relied upon Ms. Wrobleski's statements concerning

Greg Bush to their detriment, said reliance was not reasonable. 4. The Plaintiffs have suffered no damages as a result of Ms. Wrobleski's alleged

misrepresentations. Simply because Sybits elected not to utilize the source code prepared by Greg Bush does not support the Plaintiffs' claim that Greg Bush was incompetent and that Ms. Wrobleski should be held liable for allegedly recommending him to them. Regardless, there is no proof that Greg Bush was incompetent. 5. The Plaintiffs cannot offer any support for their request that the Court determine

that Greg Bush was incompetent to perform the software development services for which the Plaintiffs retained him. 6. To the extent the Plaintiffs claim that Ms. Wrobleski's alleged misrepresentations

concerning her credentials caused them to retain Greg Bush, they cannot prove that said misrepresentations caused them to suffer damages resulting from Greg Bush's subsequent alleged misconduct. 7. "To support an award of punitive damages [premised upon a common law fraud

claim], the evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights." Sorrentino v. All Seasons Services, Inc., 245 Conn. 756, 778 (1998) (internal quotation marks omitted). A malicious and wanton injury justifying an award of punitive damages is one in which both the action producing the injury and the resulting 30

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injury were intentional. Markey v. Santangelo, 195 Conn. 76, 77 (1985). FOURTEENTH COUNT - INTENTIONAL MISREPRESENTATION Ms. Wrobleski believes that this count is duplicative of the Plaintiffs' Twelfth and Thirteen Counts. Ms. Wrobleski therefore respectfully incorporates the findings of fact and conclusions of law set forth with respect to the Twelfth and Thirteenth Counts as if fully set forth herein.

FIFTEENTH COUNT - INTENTIONAL MISREPRESENTATION FINDINGS OF FACT: 1. Ms. Wrobleski never submitted to the Plaintiffs false invoices for work not

performed. (Wrobleski invoices). 2. To the extent the invoices submitted to the Plaintiffs contained errors concerning

time or specific task performed on specific dates, any such errors were innocent mistakes in no way intended to defraud the Plaintiffs. 3. 4. The Plaintiffs did not rely upon Ms. Wrobleski's alleged misrepresentations. The Plaintiffs received almost all of the work claimed to have been performed by

Ms. Wrobleski. The sole exception to this statement is that the Plaintiffs did not receive the results of Ms. Wrobleski's review of the source code that she conducted in anticipation of preparing the documentation that had been demanded by the Plaintiffs. As with most computer professionals, Ms. Wrobleski's practice of drafting documentation is first to perform a detailed, unwritten review of the source code before beginning to draft documentation. Such a method is the most efficient for Ms. Wrobleski and many other computer professionals, as they ensure their fresh knowledge of the entire system before they commence drafting the written documentation. However, because the Plaintiffs terminated Ms. Wrobleski while she was still reviewing the Plaintiffs' system before she had commenced formalizing the documentation, Ms. Wrobleski 31

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never had an opportunity to draft the documentation, the final stage of the documentation process. (Wrobleski invoices, Darer testimony). 5. The Plaintiffs have not suffered any damage as a result