Document 103
Filed 03/30/2007
Page 1 of 52
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT : : : v. : : PROFESSIONAL MEDIA GROUP, LLC : : : : LISA K. BLUMENSCHINE
CIV. NO. 3:02CV2244 (HBF)
RULING ON POST TRIAL MOTIONS On May 17-19 and 22-24, 2006, a jury trial was held on Lisa Blumenschine's claims against her former employer, Professional Media Group, LLC. Ms. Blumenschine brought a nine count
complaint, alleging that her employment was unlawfully terminated on the basis of her sex and age.1 Plaintiff also brought state law claims to recover unpaid compensation. At the end of plaintiff's case, defendant moved for judgment as a matter of law pursuant to Rule 50(a) of the Federal Rules of Civil Procedure. of the evidence. The Court reserved decision pending completion The Court continued to reserve on defendant's
motion after the evidence was completed and the case was sent to the jury. In Count One, Ms. Blumenschine alleges discrimination on the basis of sex pursuant to Title VII, 29 U.S.C. §2000, et seq. In Court Two, plaintiff alleges age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §623(d). Count Three is a claim for sex and/or age discrimination pursuant to the Connecticut Fair Employment Practices Act ("CFEPA"), Conn. Gen. Stat. §46a-60(a). In Counts Four, Five and Six, she claims retaliation under Title VII, ADEA and CFEPA respectively. Finally, plaintiff brought the following state law claims in Counts Seven, Eight and Nine for Promissory Estoppel, Negligent Misrepresentation; and violation of the Connecticut Wage Statute, Conn. Gen. Stat. §31-72.
1
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 2 of 52
On May 24, 2006, the jury returned its verdict in favor of plaintiff on two counts: negligent misrepresentation (Count Eight) and violation of the Connecticut Wage Statute (Count Nine). Defendant renewed its oral motion for judgment as a
matter of law pursuant to Fed. R. Civ. P. 50(a) as to Counts Eight and Nine after the verdict was returned. On June 2, 2006, defendant filed a memorandum in opposition to doubling statutory damages and any award of attorney's fees under the Connecticut Wage Statute. [Doc. #93]. On the same date, plaintiff filed a post-trial motion for court-awarded statutory double damages, reasonable attorney's fees, costs and prejudgment and post-judgment interest. [Doc. #95]. On June 23, 2006, defendant filed its opposition to plaintiff's post-trial motion. [Doc. #96]. [Doc. #97]. On July 7, 2006, plaintiff filed a reply brief. Oral argument was held on October 5, 2006. The
defendant filed a post-argument letter brief on October 13, 2006, [doc. #101], which was followed by plaintiff's response on October 20, 2006. [Doc. #102].
BACKGROUND The Court sets forth only those facts deemed necessary to an understanding of the issues before the Court. facts are essentially undisputed. On January 31, 2000, Professional Media Group hired Ms. Blumenschine as a National Sales Manager of its new magazine Matrix. Matrix was launched in 2000 and directed to the higher 2 The following
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 3 of 52
education management such as college presidents, regents, deans, technology services and department heads. derived solely through advertising sales. Matrix's revenue was In her offer letter,
Blumenschine was promised compensation at the rate of $140,000 per year. This compensation was divided into her salary of In
$80,000 and a $60,000 nonrecoverable draw against commission. April 2001, plaintiff was told by defendant that the commission
portion of her compensation would be altered and replaced with a different but similar compensation package. At this time,
plaintiff's nonrecoverable draw against commissions was withheld. Plaintiff made numerous inquiries about the new compensation system and its implementation. In September 2001, plaintiff was Plaintiff's
promoted to the position of Associate Publisher. employment was terminated on January 2, 2002.
Plaintiff was
never paid her full nonrecoverable draw against commission for 2001. In all other respects, the parties disagree on the sufficiency of the evidence that Ms. Blumenschine was owed a nonrecoverable draw against commission in 2001. The Verdict On May 24, 2006, the jury returned its verdict, finding in favor of the plaintiff on her negligent misrepresentation claim (Count Eight), that her former employer made a misrepresentation of fact regarding her compensation that it knew or should have known was false. The jury awarded plaintiff $50,000 on the negligent misrepresentation claim, indicating on the verdict form 3
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 4 of 52
that $40,000 was for owed wages and $10,000 was a severance payment. [Doc. #87]. The jury also found in plaintiff's favor on
the Connecticut Wage Statute claim, Conn. Gen. Stat. § 31-71 (Count Nine), that defendant failed to pay wages in the amount of $40,000, as defined by the statute, that were due to her at the time of her termination. [Doc. #85]. The jury found in a special interrogatory that defendant's violation of the Connecticut Wage Statute was done in "bad faith, arbitrarily, or unreasonably." [Doc. #87]. Defendant renewed its oral motion for judgment as a
matter of law, pursuant to Fed. R. Civ. P. 50(a), as to Counts Eight and Nine after the verdict was returned.
MOTION FOR JUDGMENT AS A MATTER OF LAW Standard of Law The standards for granting a Rule 50 motion are well established. Judgment as a matter of law is only appropriate
where "there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Civ. P. 50(a)(1). Fed. R.
The Court, in ruling on a Rule 50 motion, is
"required to consider the evidence in the light most favorable to the party against whom the motion is made and to give that party the benefit of all reasonable inference that the jury might have drawn in his favor from the evidence. The court "cannot assess
the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury." Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 367 (2d 4
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 5 of 52
Cir. 1988); Galdieri-Ambrosini v. National Realty & Development Corp., 136 F.3d 276, 289 (2d Cir. 1998); Binder v. Long Island Lighting Co., 57 F.3d 193, 198-99 (2d Cir. 1995). In other
words, a motion for judgment as a matter of law may be granted only when: (1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against [it]. Eagleston v. Guido, 41 F.3d 865, 875 (2d Cir. 1994) (citation omitted), cert. denied, 516 U.S. 808 (1995).
"The standard for granting a renewed motion for judgment as a matter of law under Rule 50(b) is precisely the same as the standard for granting the pre-submission motion." 9A Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure §2537, p. 335-57 (1995). When an initial motion for judgment as a matter of law under Rule 50(a) is not granted, "the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion." Id. at §2522, p. 244-46.
Evidence Viewed In A Light Most Favorable to Plaintiff Viewed in a light most favorable to plaintiff, the evidence at trial supports the jury
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 6 of 52
Target in January 2000 to take a position as National Sales Manager with Professional Media. She was making $150,000 to Plaintiff
$200,000 a year as National Sales Manager at Target.
stated she was recruited by Bill Ziperman to work for Joe Hanson at Professional Media on a new magazine with a new readership. She testified she was nervous about joining a startup company. At her first meeting to discuss the possibility of joining Professional Media, Blumenschine testified that she discussed potential compensation and disclosed what she was making at Target. She was told that the company would meet her salary or
come close, and assured there was potential to exceed her current salary. They also discussed management opportunities and
responsibilities. Blumenschine testified that she wanted to be an Associate Publisher. She was told that her position could develop into an Associate Publisher position but the magazine needed time to get off the ground and then they would see what her position would be. On January 7, 2000, at a meeting with Bill Ziperman, she was presented an offer letter to join the company as National Sales Manager at the new higher education magazine Matrix. [Pl. Ex. 1]. Regarding compensation, the letter states, "[y]our salary will be $6,666.66 a month for the year 2000. The commission/bonus plan (I You
will be as previously discussed and informally documented. will write it up in detail and send it to you next week).
are eligible for full time employee benefits as described in our benefits documentation (previously provided)." [Pl. Ex. 1]. 6
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 7 of 52
Plaintiff testified that she was willing to accept the job title because Ziperman said that if the magazine was successful she would become an Associate Publisher. She testified that they
discussed her base salary of $80,000, set forth in the offer letter, and the nonrecoverable draw of $60,000 to get her compensation into the $140,000-$150,000 range. She stated she was willing to forgo the $10,000 necessary to match her Target compensation because of the income potential of the new magazine. She explained that the nonrecoverable draw was necessary as this was a new venture and no revenues were being generated. Ziperman
did not follow up the offer letter with the promised further documentation regarding the nonrecoverable draw. In April 2001, Ziperman initiated a discussion with Blumenschine regarding her nonrecoverable draw. She testified
that he told her the magazine was not generating the revenues that he hoped, and that he would be withdrawing her nonrecoverable draw until he could develop another plan. Plaintiff stopped receiving her nonrecoverable draw in May 2001. She testified that she did not agree to take less than $140,000 in total compensation. She estimated that she asked Ziperman
about the plan going forward once or twice a week and was told he was working on it. In September 2001, Ziperman promoted Blumenschine to the position of Associate Publisher for Matrix.2 [Pl. Ex. 11]. She On September 26, 2001, Bill Ziperman sent an e-mail to all of the employees at Professional Media Group announcing Blumenschine's promotion. The e-mail states in relevant part, 7
2
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 8 of 52
stated that, as Associate Publisher, she became more involved in putting the magazine together, playing an editorial role, establishing a rate card and profit and loss statement. No one ever indicated that her job was in jeopardy. She
testified that she asked whether her job was in jeopardy when her nonrecoverable draw was withdrawn and no new commission structure was provided. She understood that start up ventures are uncertain and need a lot of money to get them off the ground and obtain the advertising to support the business. She stated that she asked Ziperman whether they wanted another person for the job. She
needed to know that Joe Hanson was committed to see the start up through and was assured not to worry. She told Ziperman what she needed to earn. Blumenschine testified she went on job interviews and was offered a job in cable news, selling publications at $175,000 a year. She stated that Ziperman assured her that he
I'm pleased to announce that Lisa Blumenschine has been promoted to Associate Publisher for Matrix. This is good news for Matrix. Lisa has been with Matrix since its launch and has done a terrific job helping the book get established in the higher education market. She has contributed greatly to Matrix' steady growth and this new position will allow her to use more of her skills as we move the magazine to the next level. Lisa will, in addition to continue growing her own territory, support and manage the sales effort. She will also continue to play a key role in positioning the magazine and developing collateral sales material. [Pl. Ex. 11]. 8
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 9 of 52
had a lot of faith in her and that Matrix would make it. At that time, a restructuring took place at Matrix with Dan Shannon joining as Vice-President and Publisher. Shannon's She stated
responsibilities included supervision of plaintiff.
that, because her title changed, some of her accounts were redistributed and she was thwarted in her sales efforts. found Shannon unreceptive to discussion and dismissive and unsupportive. Blumenschine testified that, after Shannon took She believed She
over, she was excluded from management meetings.
Shannon treated her with distrust, disrespect and tremendous resistance. On January 2, 2002, plaintiff's employment with Professional Media Group was terminated at a meeting with Dan Shannon and Bill Ziperman. [Pl. Ex. 27]. Plaintiff was provided with a severance
letter. Regarding a severance payment, the Company stated in its letter that, We also are offering you an additional six (6) weeks of salary in light of your severance from the Company. However, because this severance pay is offered as a matter of goodwill rather than legal obligation, we do not want to make this payment only to find that you believe you have some claim against PMG. Accordingly, the aforementioned severance payment is dependent upon your written agreement to the terms of the attached letter. You should consider that letter carefully and consult with an attorney before signing it if you have any questions. If it is satisfactory, sign and return it to us, whereupon the severance payment will be made to you at the conclusion of the 7-day period referred therein. 9
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 10 of 52
[Pl. Ex. 27].
Six weeks' salary is approximately $10,000.3 The
Defendant provided a letter to plaintiff to sign. letter states in relevant part, I understand that Professional Media Group, LLC ("PMG") has offered the severance agreement arrangement outlined in your letter to me dated January 2, 2002, a copy of which is attached hereto. I further understand that my employment, which was at the will of PMG, has been terminated, effective immediately, and I acknowledge that the offer made to me in your January 2, 2002 letter represents full compensation for anything I believe is owed to me by PMG. Accordingly, I have decided to accept this severance offer by signing this letter and returning it to you. In consideration of the offer made to me by the attached letter dated January 2, 2002, I hereby release and discharge PMG, and any subsidiary or affiliate thereof, as well as its directors, officers, predecessors, successors, assigns, trustees, fiduciaries, managers, members, administrators, representatives and agents from all and all claims, of any type and description, I may have (or believe I have) against it or them, including but not limited to claims arising from my employment or from its termination, as well as from any purported discrimination or wrongful discharge. I understand that by accepting the offer outlined to me in the attached January 2, 2002 letter and signing this release, I am forever giving up my right to sue on any such claim, and I promise not to do so. This release is made by me knowingly and voluntarily. [Pl. Ex. 27].
Plaintiff testified that when she asked for the paperwork to
Plaintiff was paid a monthly salary of $6,666.66; six weeks' salary is $9,999.99. 10
3
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 11 of 52
apply for unemployment benefits, Ziperman told her she needed to sign the severance letter to get unemployment benefits and a severance payment. excused herself. Plaintiff recalled that she got upset and When she returned and asked for the papers for
unemployment benefits, she was told she must sign the severance letter. Dan Shannon then told her he was confused and provided Plaintiff did not
her with the unemployment benefits paperwork. sign the severance letter. William Ziperman
William Ziperman was employed as General Manager at Professional Media Group beginning in 1998. Ziperman testified
that he recruited plaintiff to work at Professional Media as National Sales Manager. He recalled that Blumenschine was
looking for an opportunity to earn $150,000 and wanted to know whether there was potential to become Associate Publisher. He
told plaintiff that the company had salespeople earning in excess of $150,000 and the company looked to promote from within whenever possible. Ziperman testified that he discussed the duties of National Sales Manager but did not provide a written list of responsibilities to plaintiff. Ziperman consulted with Joe Hanson and Dan Kinneman in hiring plaintiff. He testified that, regarding compensation, "we were looking to protect our salespeople for a protracted period of time where there would be no actual sales revenue coming in. So that is why there was a draw against commission in that first year." Ziperman Tr. 20-21. Blumenschine received a nonrecoverable draw. 11
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 12 of 52
"But it was against certain conditions.
Unfortunately, the But
letter of agreement was lost so I don't have the details.
part of it was to pay her for [advertising] pages that were being given away, and then part was to - was a draw against commissions on a magazine that hadn't been launched. So it was a way of Ziperman Tr.
protecting her, you know, in that launch phase." 21.
Ziperman agreed that, in her role as National Sales Manager, plaintiff had duties that other salespeople did not have. "Supervisory rather than managerial, I would say. We offered her
. . . I mean she was helpful in supervising the sales process, developing materials, and looking at territories trying to evaluate the market. selling." But her primary responsibility was
Ziperman Tr. 22-23.
Ziperman testified that Professional Media could produce no documents tracking Blumenschine's sales and commission calculations during her employment. Ziperman Tr. 26-28. "And
the reason, as I said before is in the year 2000 the performance did not exceed or come close to meeting the commission plan. And
I never got to put together a commission plan for the year 2001 because the sales of the magazine just didn't justify commissions." Ziperman Tr. 28. He stated that he could not
recall seeing any commission reconciliation reports for Blumenschine. Ziperman Tr. 39-40.
At his deposition, Ziperman was asked to consider an exhibit listing the duties for the National Sales Manager's position. 12
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 13 of 52
The document stated, in part, "[t]he commission/bonus plan will be as previously discussed and informally documented." Tr. 28. Ziperman
Ziperman testified that he was unable to locate any
documentation in which the commission/bonus plan was informally documented." Ziperman Tr. 29-30. When asked, "[t]his document
doesn't say anything about time period, does it?," he responded, "no." Ziperman Tr. 30. Ziperman was unable to recall any of the Ziperman Tr. 36. He
terms regarding the commission/bonus plan.
stated that he last saw the commission/bonus plan in January 2000. Ziperman Tr. 38.
In April 2001, Ziperman had a conversation with plaintiff about discontinuing her nonrecoverable draw. "What I explained to her was that, . . . sales on Matrix were very, very disappointing and not improving, and I was having difficulty getting together a commission plan for her with the sales so poor." 49. Ziperman Tr.
"I told her that we were discontinuing the draw against
commission because I did not see how she could earn commission in excess of the draw without improved performance of the magazine. And I did tell her I was trying to put together a commission plan, but I was struggling with it." testified, Q And was it your intent to make this commission, when you came up with it retroactive to that April date? Retroactive to the beginning of the year. Okay. And did you ever come up with such a commission plan? I did not. The sales of the magazine kept 13 Ziperman Tr. 50. Ziperman
A Q A
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 14 of 52
declining. . . . Q Did she make inquiry of you from time to time as to whether the commission plan you were working on was completed? Yes. But it wasn't your intent to drop Ms. Blumenschine's total compensation package down to 80,000, was it? She had already gotten the additional [$20,000]. Down to a hundred? Right. It wasn't your intent for the year to drop it down to a hundred, was it? No, if sales had increased and given me something to hang my hat on. In retrospect I'm sorry I hadn't come up with a commission plan like I had for eMarketing. I had given them a two-year plan because of different timing. None of them made commission, but they had plans. We wouldn't be having this conversation if I had estimated it earlier. I was chasing a second target.
A . . . Q
A Q A Q A
Ziperman Tr. 52-53. Ziperman testified that he made the decision to promote plaintiff in September 2001 with Joe Hanson and Dan Shannon. Ziperman Tr. 53. He considered the promotion a "change in As Associate Publisher, Blumenschine's Ziperman Tr.
title." Ziperman Tr. 60.
job was really a sales job, sales responsibility." 60.
"Did you tell her that, . . . 'We're going to change your
title but your duties aren't changing, so don't get excited?' No." Ziperman Tr. 86. "Did anyone tell her that? about any additional responsibilities." 14 Nobody told her "We
Ziperman Tr. 87-88.
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 15 of 52
conveyed to her that she was getting the title she wanted." Ziperman Tr. 87. Ziperman testified that he did not conduct a
performance review of plaintiff's performance, stating, "[i]f an employee were to request it, we would certainly try to accommodate." Ziperman Tr. 64. Ziperman could not recall any Ziperman Tr. 64.
employee who requested a performance review.
In the fall 2001, Dan Kinneman left Matrix and plaintiff began reporting to Dan Shannon. Ziperman Tr. 54-55. Ziperman
testified that a new editor was hired for Matrix and Professional Media acquired University Business sometime at the end or 2001 or the beginning of 2002. Ziperman Tr. 56, 66-67, Ziperman said that Dan Shannon recommended terminating Blumenschine's employment and that Joe Hanson and he were also involved in the decision. Ziperman Tr. 75, 90. Ziperman did not speak to plaintiff about
her performance because she reported directly to Dan Shannon. Ziperman Tr. 75. Ziperman testified that he did not provide Blumenschine with a written or verbal warning regarding her job performance. Ziperman Tr. 93.
Joe Hanson's Testimony Joe Hanson testified that he first met Lisa Blumenschine at an interview to recruit her for a sales position at Matrix. He stated that Ziperman told him that plaintiff was a top notch sales person at Prime Media. He recalled that Blumenschine was clear that she wanted a future in management. He did not recall
having a conversation with her about compensation. Rather, he spoke with Bill Ziperman about the content of the offer letter. 15
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 16 of 52
Hanson believed they could not get Blumenschine for less than $140,000 a year. He stated that the base salary was $80,000 with He said it was a one Matrix
an advance against commission of $60,000. year agreement.
There was little revenue opportunity.
was going to publish three issues in later 2000 and three issues in early 2001. He acknowledged that there was no way to
compensate Blumenschine close to what she was earning before she joined Matrix, so they contrived a compensation structure so that in the following year she would receive $80,000 plus commissions. He stated that the nonrecoverable draw was so that plaintiff could receive something and it was designed to persuade her to leave her job to work at Matrix. He testified that he was
unaware what plaintiff was earning with her former employer, Target. Hanson testified that Blumenschine received all of the compensation promised in 2000. Thereafter, he decided that her He stated that it
compensation structure needed to be altered.
was clear early in 2001 that he could not justify a total compensation of $140,000 to plaintiff. He said it made no sense
economically, as there was not nearly enough revenue to come close to justifying her compensation into 2001. Hanson spoke to Ziperman and told him to talk to Blumenschine and to tell her it just wasn't working and that her compensation was being reduced to $80,000. Hanson testified that plaintiff did not complain to
Hansen that she was not getting what was promised to her in 2001. Hanson testified that Matrix did not create documents 16
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 17 of 52
setting forth sales goals. The only document Hanson recalled seeing was plaintiff's offer letter. He testified that he was not there when plaintiff was promoted, but understood that the title of Associate Publisher effected no change in her responsibilities or activities and no change in her compensation. Hanson stated that he did not
consider her change in title a promotion as he has never promoted an employee without a raise. Hanson did not recall seeing plaintiff around the office because she was out making sales calls. He recalled asking her She
about sales and invariably was told it was a tough market. did not tell him about any problems with Shannon.
Blumenschine's title change was announced in September 2001 and the decision to terminate her employment was made in November 2001. He testified that the only documents he reviewed in discussing termination of plaintiff's employment was the severance letter and release. He did not look at sales figures, He testified that
as they did not exist at the time.
Blumenschine's termination was for inadequate sales performance. Daniel Kinneman's Testimony Daniel Kinneman was hired by Professional Media Group in 1998 as Group Publisher for both Curriculum Administrator and Matrix. Kinneman left his position in September 2001. Kinneman
testified that he met Lisa Blumenschine during the hiring process. He stated he was not responsible for administering
compensation packages but was involved in discussions about 17
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 18 of 52
general ranges of salary and structure.
He testified that he was
aware that plaintiff's compensation would include an advance against anticipated sales, paid as nonrecoverable. He explained
that this was done to protect sales people working for a startup magazine. Kinneman was responsible for supervising plaintiff day to day. He did not remember seeing specific commission He reviewed quarterly reports for all the
reconciliations.
people at the magazine. He did not recall a specific commission report for Blumenschine. Kinneman testified that Ziperman was
responsible for administering plaintiff's compensation and he was unaware that her nonrecoverable draw was discontinued. Kinneman recalled having several conversations with Blumenschine regarding the survival of Matrix. did not have enough sales to be self-sustaining. he told plaintiff to concentrate on sales. It was clear they He stated that
Kinneman was not
aware of Blumenschine's promotion and was not consulted about the promotion or the decision to terminate her employment.
Dan Shannon's Testimony Dan Shannon testified that when he joined Matrix, the decision to promote Lisa Blumenschine was already made. He
stated he had no input into Blumenschine's compensation and had not monitored her sales to that date. He testified that he
viewed plaintiff's promotion as a title change only and believed that no responsibilities were taken away from her. 18 He stated
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 19 of 52
that Blumenschine didn't ask for anything that was not given. Shannon recalled that his first conversations with Hanson and Ziperman regarding firings at Matrix was at the time he was hired. He was asked if he was prepared to make changes to fix
the problem, which he understood to mean firing employees, although he could not recall if plaintiff was specifically mentioned. Shannon testified that plaintiff's sales performance was going down and that he had daily conversations with her during the fall 2001. He stated that he never documented his
conversations with plaintiff regarding declining sales. He stated that plaintiff was never put on a thirty day written notice regarding her performance. He stated that the severance offered covered the notice period, as it was rare to give thirty days notice to a sales person because it was best to end the employment. Shannon testified that he recommended terminating Blumenschine's employment, adding that he was not the first to mention it. Shannon could not recall saying that plaintiff had
to sign the agreement not to sue in order to receive unemployment benefits.
DISCUSSION Defendant seeks judgment as a matter of law on plaintiff's claims of negligent misrepresentation (Count Eight) and violation of the Connecticut Wage Statute (Count Nine). that follow, defendant's motion is DENIED. 19 For the reasons
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 20 of 52
Negligent Misrepresentation Defendant argues that there was no evidence that Bill Ziperman was going to provide another commission plan and thus plaintiff could not reasonably rely on any representation or promise of a commission plan. Under Connecticut law, one who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. Even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth. Adair v. Pfizer, 245 F. Supp. 2d 437, 445 (D. Conn. 2003) (quoting Craine v. Trinity College, 259 Conn. 625, 661 (2002)). Defendant challenges the jury's finding that there was any promise made by Ziperman to provide a future commission plan and asserts there was no evidence showing that plaintiff was entitled to the nonrecoverable commission after 2000. According to defendant, Blumenschine's sales did not support her salary and she remained in her job only on the subjective belief of a future commission structure even though she had no commission structure after April 2001. The evidence considered in the light most favorable to plaintiff supports the jury's verdict on this claim. It is not disputed that the offer letter contains no date restriction for receiving the nonrecoverable draw of $60,000. Although the offer letter, signed by Bill Ziperman, stated, "The 20
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 21 of 52
commission/bonus plan will be as previously discussed and informally documented. (I will write it up in detail and send it to you next week.)" Pl. Ex. 1, defendant provided no evidence that any commission/bonus plan was ever documented. Ziperman
testified he was unable to locate any documentation regarding the commission/bonus plan, and was unable to recall any of the terms set forth in the plan. Ziperman Tr. 29-30. Ziperman stated the
last time he saw the commission/bonus plan was in January 2000. Ziperman Tr. 38. Moreover, defendant provided no evidence that an alternative commission plan for 2001 was created. There was no evidence
provided of plaintiff's 2001 sales and no commission reports to support the defendant's view that plaintiff's performance could not support continuing the nonrecoverable draw. Ziperman admitted that it was not his intention to drop Blumenschine's commission down to $100,000 from $140,000 a year. Ziperman at 52-53. He
was asked, "But as far as you understood, Lisa came away from your meeting in April with an understanding that you were discontinuing the nonrecoverable draw, but she would wait to hear from you as to the basis her compensation would be going forward?." He answered, "Yes. Commission going forward."
Ziperman Tr. 53. The Court concludes that, viewing all the evidence in a light most favorable to plaintiff, defendant's offer letter did not restrict the nonrecoverable draw to one year. The evidence demonstrates that plaintiff left her former job, which 21 paid
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 22 of 52
$150,000, on the promise that she would make $140,000 at Matrix. Plaintiff also testified that she declined a $175,000 job opportunity to remain at Matrix and move into a management position. The jury was entitled to believe plaintiff's testimony
that she remained in her position at Matrix on Ziperman's promise that an alternative commission plan would be developed for 2001 and that the new plan would be retroactive to April 2001. Ziperman Tr. 52. in September 2001. Plaintiff was promoted to Associate Publisher Plaintiff testified, and the record reflects,
that defendant did not support its claim that her nonrecoverable draw was based on lagging sales, and Ziperman could not recall seeing any commission reconciliation reports for Blumenschine. Ziperman Tr. 39-40. Ziperman never informed plaintiff that there would be no new 2001 commission plan. Without more, the jury was entitled to award plaintiff her nonrecoverable draw for 2001. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 135 (2000) ("[T]he court must review all of the evidence in the record, drawing all reasonable inferences in favor of the nonmoving party, but making no credibility determinations or weighing any evidence."). Finally, the jury's award of the $10,000 severance payment is also supported by the evidence. Dan Shannon testified that plaintiff was not put on notice that, if her sales did not improve, her employment would be terminated. He stated that the
offered severance payment covered the notice period as it was rare to give sales people thirty (30) days notice, because in his 22
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 23 of 52
view it was best to end the employment. Based on this record, defendant has not met the standard for granting a Rule 50 motion. See Eagleston, 41 F.3d at 875. Connecticut Wage Statute Similarly, defendant argues that the record does not contain a promise to pay additional wages. Plaintiff argued she was owed
her wages at the time of her termination, that is, the balance of the $140,000 due her. As set forth above, the jury was entitled
to find that plaintiff was promised wages of $140,000, that she was entitled to the nonrecoverable draw of $40,000 for 2001 and that upon her termination, defendant failed to pay her the wages due her. Based on the evidence, defendant's Rule 50 motion on the Connecticut Wage Statute is also DENIED.
PLAINTIFF'S POST-TRIAL MOTION FOR COURT AWARDED STATUTORY DAMAGES, REASONABLE ATTORNEY'S FEES, COSTS AND PREJUDGMENT AND POST-JUDGMENT INTEREST [Doc. #95] Plaintiff moves for an award of statutory damages, reasonable attorney's fees, costs and prejudgment and postjudgment interest under Connecticut General Statutes §§31-72, 373a and 37-3b. As set forth above, on May 24, 2006, the jury returned its verdict in favor of plaintiff on two counts: negligent misrepresentation (Count Eight) and violation of the Connecticut Wage Statute (Count Nine). The jury awarded plaintiff $50,000 on
the negligent misrepresentation claim, indicating on the verdict 23
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 24 of 52
form that $40,000 was for owed wages and $10,000 was a severance payment. [Doc. #87]. The jury also ruled in plaintiff's favor on
the Connecticut Wage Statute claim, Conn. Gen. Stat. § 31-71 (Count Nine), that defendant failed to pay wages in the amount of $40,000, as defined by the statute, that were due to her at the time of her termination. [Doc. #85]. The jury found in a special interrogatory that defendant's violation of the Connecticut Wage Statute was done in "bad faith, arbitrarily, or unreasonably." [Doc. #87]. Plaintiff moves for an award of statutory double damages together with reasonable attorneys' fees and costs under the Connecticut Wage Statute, Conn. Gen. Stat. §31-72. Plaintiff
also seeks prejudgment interest pursuant to Conn. Gen. Stat. §373a and post-judgment interest pursuant to Conn. Gen. Stat. §37-3a and §37-3b. A. Connecticut Wage Statute: Award of Double Damages
Plaintiff asks the Court to double the damages award of $40,000 pursuant to Conn. Gen. Stat. 31-72,4 based on the jury's finding that the defendant's failure to pay plaintiff her wages at the time of the termination of her employment was "unreasonable, arbitrary or in bad faith." Defendant argues that
the record does not support the advisory finding by the jury that the withholding of her wages was "unreasonable, arbitrary or in
The Connecticut Wage Statute states that a party may recover "twice the full amount of such wages, with costs and such reasonable attorney's fees as may be allowed by the court. . . ." Conn. Gen. Stat. §31-72. 24
4
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 25 of 52
bad faith."
Conn. Gen. Stat. § 31-72. The Court disagrees and
makes the following findings based on the trial record. Section 31-72 provides for a discretionary award of double damages to employees who are successful in actions against their employers who are successful in actions against their employers for wages due. Although the statutory language does not require evidence of bad faith, arbitrariness or unreasonableness, cases interpreting and applying this statute have required such evidence. See Sansone v. Clifford, 219 Conn. 217. 229 (1991) ("[i]n am action for wages brought pursuant to General Statutes §31-72, awards for double damages and attorney's fees are inappropriate in the absence of the trial court's finding of bad faith, arbitrariness or unreasonableness"). Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 470 (Conn. 1997). There is no dispute that defendant failed to pay plaintiff wages that were due to her after April 2007. The jury found that outstanding wages of $40,000 were withheld in violation of the Connecticut Wage Statute. Bill Ziperman testified that he was
developing a new compensation plan after he discontinued plaintiff's nonrecoverable draw. ever developed. Yet, no commission plan was
Plaintiff testified that she continued to ask
Ziperman for the new commission plan and was assured he was working on it. Significantly, Ziperman never told plaintiff that
there would be no commission plan for 2001 nor did he indicate that her compensation going forward was solely based on her $80,000 salary.5
5
Notwithstanding defendant's argument that
At his deposition, Ziperman was asked, Q But it wasn't your intent to drop Ms. Blumenschine's 25
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 26 of 52
plaintiff's sales did not justify any commissions in 2001, the company did not produce any commission reports to back this up. Plaintiff was promoted in September, yet she did not receive a performance review regarding poor sales performance. Defendant
discontinued plaintiff's nonrecoverable draw in May 2001 with the promise to develop a commission plan going forward. In effect, defendant stopped paying plaintiff any commission for the remainder of 2001, never responded to plaintiff's inquiries to be paid commissions, terminated her employment and then never paid her any commission for sales from May through December 2001. On
this record, the Court finds that withholding the nonrecoverable draw, in the absence of a new commission plan, was arbitrary and unreasonable and supports an award of double damages. See
Cabrera v. G.T. Construction, 3:05CV812, 2006 WL 1272618, at *1 (D. Conn. Mar. 27, 2006) (finding that the defendant acted in "bad faith based upon his pattern and practice of not paying wages that were due and owing, and based upon his repeated promises to Plaintiff's that they would be paid their back wages total compensation package down to $80,000, was it? She has already gotten the additional $20,000. Down to a hundred? Right. It wasn't your intent fo the year to drop it down to a hundred, was it? No, if sales had increased and given me something to hang my hat on. In retrospect I'm sorry I hadn't come up with a commission plan like I had for eMarketing. I had given them a two-year plan because of different timing. None of them made commission, but they had plans. We wouldn't be having this conversation if I had estimated it earlier. I am chasing a second target.
A Q A Q A
Ziperman Tr. 52-53. 26
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 27 of 52
as an inducement for them to continue to work for him."); Commissioner of Labor v. Wall, 69 Conn. App. 450, 462 (Conn. App. 2002) (finding that "the defendants' withholding in fact had been motivated not by a good faith belief that they were acting in accordance with the terms of the employment agreement, but rather by mere whim and caprice."); Petronella ex rel. Maiorano v.
Venture Partners, Ltd., 60 Conn. App. 205, 215 (Conn. App. 2000) (finding double damages were properly awarded, the lower Court found "[t]he claimants were promised by said defendants that they would be paid their back wages as an inducement to keep them working. Yet, they were fired two months later and not given After being fired, they were further told they However, to
those back wages.
would be paid if they would sign certain releases.
this day they have not been paid."), cert. granted in part, 255 Conn. 909 (2000), appeal dismissed as improvidently granted, 258 Conn. 453 (2001); Anderson v. Shcieffer, 35 Conn. App. 31, 42-43 (Conn. App. 1994) (unjustified failure to pay commissions demonstrated "bad faith, arbitrariness, and unreasonableness."); Crowther v. Gerber Garment Tech. Inc., 8 Conn. App. 254, 265-66 (Conn. App. 1986) (The Court of Appeals found persuasive, the lower court's finding that defendant "had unfettered discretion to adjust retroactively the plaintiff's commission rate as untenable" it "unilaterally" modified plaintiff's commission rate'. . . "these finding show that the defendant was jaundiced by the financial success of the plaintiff under the existing employment contract, unilaterally undertook to reduce the 27
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 28 of 52
commission rate, in effect taking the law into its own hands.") (emphasis in original).6 Here an award of double damages "is in Cabrera,
keeping with the remedial purposes of the wage laws." 2006 WL 1272618 at *1.
Accordingly, the Court awards plaintiff double damages pursuant to Conn. Gen. Stat. §31-72.
B.
Prejudgment and Post Judgment Interest
Additionally, the Court finds that an award of prejudgment and post judgment interest at the statutory rate of ten percent (10%) is warranted. The allowance of prejudgment and post
judgment interest under Conn. Gen. Stat. §37-3a "as an element of damages is primarily an equitable determination and a matter within the sound discretion of the trial court." Metcalfe v.
Talarski, 213 Conn. 145, 160 (1989) (prejudgment interest); .TDS Painting & Restoration, Inc. v. Copper Beech Farm Inc., 73 Conn. Defendant's reliance on Ravetto v. Triton Thalassic Technologies, Inc., No. FSTCV020189897, 2005 WL 3507963, at *4 (Conn. Super. Nov. 4, 2005), and the cases cited therein, are distinguishable on the facts. First, in Ravetto defendant's employees were furloughed because the company was unable to pay their salary. Second, some employees, such as plaintiff, voluntarily remained at work under a "deferred salary plan." Finally, when repaying wages to plaintiff, defendant subtracted monies "on the basis that the commissions on which the draw or advances in the amount were paid, were never earned." In this case, defendant did not furlough its employees. Blumenschine had a nonrecoverable draw, an agreement with defendant that the commission would be paid. Defendant discontinued the nonrecoverable draw in May 2001 with a promise to provide a new plan going forward. Ziperman testified he did not intend to limit Blumenschine's compensation to be at $100,000 for 2001. The jury found that the nonrecoverable draw was due to plaintiff in the absence of a new commission plan for 2001 and based on the testimony at trial. 28
6
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 29 of 52
App. 492, 510-11 (Conn. App.) (post judgment interest), cert. denied, 262 Conn. 925 (2002). Whether to award prejudgment
and/or post judgment interest turns on whether the detention of the money was wrongful under the circumstances. See Spearhead
Construction Corp. v. Bianco, 39 Conn. App. 122, 134-35 (Conn. App.), cert. denied, 235 Conn. 928 (1995); T.D. Painting & Restoration, Inc., 73 Conn. App. at 511-12 (post judgment interest); Lawrence v. New Hampshire Ins. Co., 29 Conn. App. 484, 498, cert. denied, 224 Conn. 923 (1992). Here, defendant
wrongfully withheld commissions due and owning to plaintiff and therefore an award of prejudgment interest running from the date that the wages were withheld is appropriate.7 Prejudgment
interest, awarded pursuant to §37-3a, runs from the date that the wages were withheld until the date of judgment enters. Cabrera v. G.T. Construction, 3:05CV812, 2006 WL 1272618, *1 (D. Conn. Mar. 27, 2006). "It follows, therefore, that post judgment interest, also awarded pursuant to §37-3a, begins to run from the date of judgment." T.D. Painting & Restoration, Inc., 73 Conn. App. at
511 (Post judgment interest "shall be calculated from the date of the final judgment to the date of payment.") (citing O'Leary v. Industrial Park Corp., 211 Conn 648, 653-54 (1989)). Accordingly, plaintiff's motion for prejudgment and post judgment interest is GRANTED.
Prejudgment and post-judgment interest is awarded only on the unpaid wages, not the additional double damages awarded pursuant to Conn. Gen. Stat. §31-72 29
7
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 30 of 52
C.
Reasonable Attorneys' Fees and Costs
Last, plaintiff seeks an award of attorneys' fees and costs. In support of this request, her attorneys have submitted an affidavit of Attorney Scott Lucas [Doc. #95]; contingency fee agreement dated February 8, 2002 [Doc. #95 Ex. 1]; contingency fee agreement dated May 23, 2002 [Doc. #95 Ex. 2]; billing invoice from January 7, 2002 through April 23, 2002 [Doc. #95 Ex. 3]; billing invoice from May 20, 2002 through May 31, 2006 [Doc. #95 Ex. 4]; a list of costs [Doc. #95 Ex. 5]; an invoice from State Marshal Anthony D. Verrico [Doc. #95 Ex. 6]; invoices from court reporters [Doc. #95 Ex. 6]; and Martindale.com lawyer profiles for attorneys Scott Lucas, Keith McBride, Mary Alice Canaday, Claire Ryan, and Michael Bayonne [Doc. #95 Ex. C]. Based on the affidavit and records, plaintiff seeks an award of attorneys' fees in the amount of $252,917.75 or, in the alternative, $122,915.75, plus costs of $9,625.97.8
Plaintiff offers the following explanation for the alternative request of $122,915.75: After April 30, 2002, this matter was handled on a 20% contingency, and, given the jury award of $50,000 plus doubling under the wage statute ($40,000) for a total of $90,000, an additional $18,000 is due from plaintiff. Thus, the total fees incurred by Ms. Blumenschine through May 31, 2006 are $122,915.75 (i.e. $2,560 (under the first retainer agreement) + $102,355.75 (reducedhourly-rate fees under the second retainer agreement) + $18,000 (contingency fee under second retainer agreement)). [Doc. #97 at 5]. 30
8
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 31 of 52
1.
The Standard for Awarding Fees
Section 31-72, provides for recovery of "reasonable attorney's fees to prevailing parties; 'it is well established, however, that it is appropriate for a plaintiff to recover attorney's fees, and double damages under that statute, only when the trial court has found that the defendant acted with 'bad faith, arbitrariness or unreasonableness.'" Schoomaker v.
Lawrence Brunoli, Inc., 265 Conn. 210, 269 (2003) (citing Sansone v. Clifford, 219 Conn. 217, 229 (1991)). The jury, by an
advisory finding, and the Court have made the requisite finding of bad faith, arbitrariness or unreasonableness and plaintiff may recover a "reasonable attorney's fee." Defendant objects to any fee award. However, defendant argues that if the Court is inclined to consider some award of attorney's fees, over objection, that the amount plaintiff sought should be reduced to one ninth (1/9)9 to reflect her limited success at trial. Alternatively, defendant argues that
plaintiff's fee request should be reduced by eighty percent (80%). The district court is afforded broad discretion in determining a reasonable fee award based on the circumstances of the case. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The
"normal starting point for calculating reasonable attorneys'
As defendant points out, plaintiff lost on seven of nine counts at trial, including her request for punitive damages and non-economic damages. Significantly, the Connecticut Wage Statute claim is the sole statutory authority for an award of attorney's fees. [Doc. #96 at 4]. 31
9
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 32 of 52
fees, to be awarded to a prevailing [] plaintiff is the calculation of a so-called 'lodestar' figure, which is arrived at by multiplying 'the number of hours reasonably expended in the litigation . . . by a reasonable hourly rate.'" Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 172 (2d Cir. 1998) (quoting Hensley, 461 U.S. at 433). The rates to be used in calculating the
lodestar are the market rates "prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Blum v. Stenson, 465 U.S. 886, 896
& n. 11 (1984); see also Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998). There is a strong presumption that the lodestar Quaratino v. Tiffany & Co.,
figure represents a reasonable rate. 166 F.3d 422, 425 (2d Cir. 1997).
"[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Hensley, 461 U.S. at 437.
"Applications for fee awards should generally be documented by contemporaneously created time records that specify, for each attorney, the date, the hours expended, and the nature of the work done." Kirsch, 148 F.3d at 173. The Court should exclude
from the fee calculation hours that were not reasonably expended. Hensley, 461 U.S. at 434. Hours that are "excessive, redundant,
or otherwise unnecessary should be excluded and in dealing with such surplusage, the court has discretion simply to deduct a reasonable percentage of the number of hours claimed as a practical means of trimming fat from a fee application, from the lodestar calculation." Kirsch, 148 F.3d at 173 (internal 32
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 33 of 52
citations and quotation marks omitted).
The task of determining
a fair fee requires a conscientious and detailed inquiry into the validity of the representations that a certain number of hours were usefully and reasonably expended. Lunday v. City of Albany,
42 F.3d 131, 134 (2d Cir. 1994) (remanding award of attorneys' fees and directing the magistrate judge to review critically counsel's time records). The trial court must
examine the hours expended by counsel and the value of the work product of the particular expenditures to the client's case . . . . In making this examination, the district court does not play the role of an uninformed arbiter but may look to its own familiarity with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties. Gierlinger, 160 F.3d at 876 (quoting DiFilippo v. Morizio, 759 F.2d 231, 235-36 (2d Cir. 1985)). The Second Circuit has further
directed that if the Court determines that certain hours are not deserving of compensation, it must state the reasons for excluding those hours "as specifically as possible." LeBlanc-
Sternberg v. Fletcher, 143 F.3d 748, 764 (2d Cir. 1998) (internal quotations omitted) (citing Orchano v. Advanced Recovery, Inc., 107 F.3d 94, 99 (2d Cir. 1997)). "The product of reasonable hours times a reasonable rate does not end the inquiry." Hensley, 461 U.S. at 434. There are
other considerations that may lead a court to adjust the fee upward or downward. Id. The lodestar figure may be adjusted on Id. "Indeed 'the most
the basis of the "results obtained."
critical factor' in determining the reasonableness of a fee award 33
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 34 of 52
'is the degree of success obtained.'" Farrar v. Hobby, 506 U.S. 103, 114 (1992) (quoting Hensley, 461 U.S. at 436). "This factor
is particularly crucial where a plaintiff is deemed 'prevailing' even though he succeeded on only some of his claims for relief." Hensley, 461 U.S. at 434. A plaintiff who prevails on some but
not all of his claims is not entitled to a fee award for unsuccessful claims that were based on different facts and different legal theories. Id. However, "[a] plaintiff's lack of
success on some of his claims does not require the court to reduce the lodestar amount where the successful and unsuccessful claims were interrelated and required essentially the same proof." Murphy v. Lynn, 118 F.3d 938, 952 (2d Cir. 1997), cert.
denied, 522 U.S. 1115 (1998) (citation omitted); DeLeon v. Little, No. 3:94CV902, 2000 WL 435494, at *4 (D. Conn. Mar. 2, 2000). The following factors may also be considered: (1) the
time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. 430 n. 3. Hensley, 461 U.S. at
34
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 35 of 52
2.
Plaintiff's Fee Request a. Reasonableness of the Hours Claimed
Plaintiff bases her fee request on 994.8 hours of time billed by attorneys Scott Lucas, Mary Alix Canaday, Michael Bayonne, Claire Ryan, Keith McBride and paralegal Bonnie Ford. There are two applicable fee agreements between Ms. Blumenschine and the firm of Martin, Lucas & Chioffi, LLP. The
firm was initially retained by plaintiff on an hourly basis, with the option to convert to a split-fee agreement, providing both substantially reduced hourly rates and a twenty percent (20%) contingency fee. [Doc. #95 Ex. 1]. The first agreement covers Plaintiff seeks
the period of January 7 through April 23, 2002.
10.6 hours of time totaling $2,560 in attorneys' fees under the terms of the first agreement. [Doc. #95 Ex.3]. On or about May 23, 2002, the terms of the engagement were changed to the split fee arrangement, retroactive to May 20, 2002. [Doc. #95 Ex. 2]. The second agreement covers the period Plaintiff seeks 984.20
from May 23, 2002 through May 31, 2006.
hours of time totaling $102,355.75, plus $18,000 due under the contingency fee portion of the second agreement (twenty percent (20%) of the $90,000 damages award). In addition, plaintiff seeks $9,625.97 in costs for a total of $132,541.72 in attorneys' fees and costs. [Doc. #95 Ex. 5].
Defendant argues that "the causes of action Blumenschine prevailed on (and the only one on which she can be awarded attorney's fees) have no overlapping legal elements or theories with her federal discrimination-based claims and are not 35
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 36 of 52
factually 'inextricably intertwined' with the discriminationbased counts, as evidenced by the underlying factual predicate for the different claims." [Doc. #96 at 8]. Defendant proposes an across the board award reduction to one-ninth (1/9) of the total fees and costs sought, since the sole source of the Court's discretionary authority to award fees is the Connecticut Wage statute §31-72. One-ninth (1/9) of the total requested fees and costs is $14,726.85. The Court has carefully considered defendant's requests to disallow specific time entries, and rules as follows: 1. In considering the first invoice, the time entries totaling 7 hours referencing work performed preparing for and representing plaintiff at the CHRO proceeding are disallowed.10 2. [Doc. #95 Ex. 1].
In considering the second invoice, the time entries from May 2, 2002 through December 2, 2002, totaling 13.65 hours that reference work performed preparing for and representing plaintiff at the CHRO proceeding are disallowed. [Doc. #95 Ex.4].
3.
Time entries totaling 56.8 hours referencing work performed relating to trial experts Wishnick and Silverman are disallowed. [Doc. #95 Ex.4].
4.
The time entry of .7 hour on May 6, 2004, to discuss a job offer with plaintiff is disallowed. [Doc. #95
The Court will permit 3.7 hours for the time expended meeting with plaintiff at the start of the case and in preparing plaintiff's demand letter and responding to defendant's opposition in the amount of $1,170. 36
10
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 37 of 52
Ex.4]. 5. Time entries totaling 81.8 hours referencing work performed on the motions in limine are disallowed. [Doc. #95 Ex.4]. 6. Time entries totaling 13.9 hours referencing work performed preparing witnesses Nancy Switkes and Sara Sikes are disallowed. [Doc. #95 Ex.4]. 7. Time entries totaling 27.25 hours referencing work performed relating to research on federal discrimination claims and/or damages are disallowed. [Doc. #95 Ex.4]. 8. Time entries totaling 136.2 hours referencing work performed researching and drafting plaintiff's summary judgment motion are disallowed. Plaintiff's Motion for
Summary Judgment was denied on all grounds. [Doc. #95 Ex.4]. 9. Time entries totaling 83.74 hours referencing work performed researching and drafting plaintiff's opposition to defendant's motion for summary judgment are disallowed. Plaintiff prevailed on her Connecticut
Wage Statute claim. Accordingly, the Court permitted an award of one-ninth (1/9) or 10.46 hours of the total 94.2 hours performed in opposing the motion. 10. Time entries totaling 24.35 hours referencing work performed researching and drafting a reply to defendant's opposition to plaintiff's motion for summary judgment and two (2) entries for reviewing the 37
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 38 of 52
court's rulings on summary judgment are disallowed. 11. Time entries totaling 10.25 hours referencing work performed in preparation for and in deposing Dan Boucher are disallowed. Based on the review a above, the Court disallows 455.64 hours. Finally, the Court makes a further reduction in the time entries for excessive, unnecessary or vague entries. The Second Circuit has held that an application for attorneys' fees must be supported by detailed, contemporaneous time records indicating the attorney who performed the work, the date, the hours expended, and the nature of the work done." New York Ass'n for Retarded Children v. Carey,711 F.2d 1136, 1148 (2d Cir. 1983). While the fee applicant's records need not be extraordinarily detailed, they must identify the general subject matter of the claimed time expenditures. Hensley, 461 U.S. at 437. A review of
the submitted records reveals that a number of the entries in the records submitted by counsel indicate merely that a phone call, or a conference was held without describing the nature of the discussions. "A court may ... refuse to award fees based on
time entries that provide a vague description of the work performed." Smart SMR of New York, Inc., 9 F. Supp. 2d at 150.
"Entries stating such vague references as 'review of file', 'review of correspondence', 'research', 'conference with client', and 'preparation of brief' do not provide an adequate basis upon which to evaluate the reasonableness of the services and hours expended on a given matter." Rabin, 425 F. Supp. 2d at 273 38
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 39 of 52
(quoting Mr. & Mrs. B. v. Weston Bd. of Educ., 34 F. Supp. 2d 777, 781 (D. Conn. 1999)). A court may attempt to clarify vague entries by looking at the context of adjacent entries. 891 F. Supp. 687, 691 (1994). Conn. Hosp. Ass'n v. O'Neill,
However, courts have stated that
it is "neither practical nor desirable" to review each entry in a massive case. Copeland, 641 F.2d at 903 ("a district court
[should not], in setting an attorney's fee, become enmeshed in a meticulous analysis of every detailed facet of the professional representation."). An award of attorney fees is not "to serve as full employment or continuing education programs for lawyers and paralegals." 1992). Lipsett v. Blanco, 975 F.2d 934, 938 (1st Cir.
Thus, a "trial court should ordinarily greet a claim that
several lawyers were required to perform a single set of tasks with healthy skepticism." Id. at 938-39 (citing United Nuclear
Corp. v. Cannon, 564 F. Supp. 581, 590 (D.R.I. 1983)). "It is well recognized that when more lawyers than are necessary are assigned to a case, the level of duplication of effort increases ...." Farmington Sav. Bank v. Patriot Mech. Servs., LLC,
CV0308273578, 2004 WL 422954, at *9 (Conn. Super. Ct. Jan. 26, 2004) (quoting Gatti v. Community Action Agency of Greene County, Inc., 263 F. Supp. 2d 496, 518 (N.D.N.Y. 2003)). "[I]n many cases in which prevailing parties seek an award of attorneys fees, it is unrealistic to expect a trial judge to evaluate and rule on every entry in an application ... For that reason, many courts have endorsed percentage cuts as a practical 39
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 40 of 52
means of trimming ... a fee application."
Farmington Sav. Bank,
2004 WL 422954, at *9 (internal quotations and citations omitted). Defendant correctly points out that a number of billing entries are vague. The Court spent a considerable amount of time reviewing the billing records, affidavit and exhibits submitted by counsel in order to evaluate the services performed. In some instances, vague entries can be clarified by reviewing adjacent time entries, in which case a deduction has not been taken. However, multiple entries for "review file" or "attention to file" "attention to status" "conference with. . ." or "misc." are noted.11 Other entries are purely duplicative or excessive. The billing records contain multiple entries of attorneys billing for conferences with each other and/or with their client present.12 Understandably, it is impossible to determine whether these hours and others like them were duplicative or were justifiably billed. Accordingly, the Court finds an across the board 4% reduction for these specific entries is justified. This reduction totals twenty (20) hours.
For example, February 8, December 9, 10, 16, 2002, February 4, March 5, 11, 17, May 2, 15, 21, 2003. This is not an exhaustive list but an example of the entries disallowed. For example, on December 9, 11, 2002, May 23, 2003, July 21, 22, both Attorneys Lucas and an associate billed for conferences with each other and/or their client. This is not an exhaustive list but an example of the entries disallowed. 40
12
11
Case 3:02-cv-02244-HBF
Document 103
Filed 03/30/2007
Page 41 of 52
b.
Reasonable Hourly Rate The traditional lodestar method for determining reasonable
attorneys fees calculates a figure "based upon the number of hours reasonably expended by counsel on the litigation multiplied by a reasonable hourly rate." Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997) (citi
United States Free Forms
Canada Free Forms
United Kingdom Free Forms
Australia Free Forms