BTS, USA, Inc. v. Executive Perspectives, LLC , 166 Conn. App. 474 ( 2016 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
BTS, USA, INC. v. EXECUTIVE
PERSPECTIVES, LLC, ET AL.
(AC 37502)
DiPentima, C. J., and Sheldon and Mullins, Js.
Argued March 14—officially released June 28, 2016
Appeal from Superior Court, judicial district of
Waterbury, Complex Litigation Docket, Dubay, J.
[motion to inspect]; Dooley, J. [motions for order, and
attorney’s fees, costs; judgment].)
James T. Baldwin, with whom, on the brief, were
Catherine L. Creager and Douglas J. Varga, for the
appellant (plaintiff).
Joseph D. Garrison, with whom were Joshua R.
Goodbaum and, on the brief, Robert A. Richardson, for
the appellees (defendants).
Opinion
SHELDON, J. The plaintiff, BTS, USA, Inc., appeals
from the judgment of the trial court rendered in favor
of the defendants, Executive Perspectives, LLC (EP),
and Marshall Bergmann, on its claims against them for
violation of the Connecticut Uniform Trade Secrets Act
(CUTSA); General Statutes § 35-50 et seq.; and the Con-
necticut Unfair Trade Practices Act; General Statutes
§ 42-110a et seq.; and tortious interference with the
plaintiff’s business relationships, and on its claim
against Bergmann for breach of his employment con-
tract with the plaintiff and against EP for tortious inter-
ference with that employment contract. On appeal, the
plaintiff claims that the court abused its discretion by
(1) precluding it from inspecting an adequate sampling
of EP’s products; (2) determining that the name and
identity of the plaintiff’s vendor was not a trade secret;
(3) denying its request for injunctive relief; (4) finding
that it had maintained its CUTSA claims in bad faith;
and (5) awarding attorney’s fees to EP without distin-
guishing the fees associated with its colorable claims
from the claims found to have been made in bad faith.
We affirm the judgment of the trial court.
The following facts, as found by the trial court,1 are
relevant to this appeal. ‘‘[The plaintiff] is part of a Swed-
ish based international corporation which designs and
markets training simulations, experiential educational
exercises and related products to business and industry.
The products include business simulations designed
to educate and train client employees, whether upper
management, middle management or front office work-
ers. There are essentially three types of product[s]:
learning maps, computer simulations, and board games.
The products can be sold ‘as is’ or they can be custo-
mized to varying degrees. As needed, a simulation can
be designed almost from scratch to suit the specific
model or needs of the client. The president of [the
plaintiff] is Jonas Akerman.
‘‘EP is a direct competitor of [the plaintiff]. EP designs
and sells the same types of product to the same types
of clients, with the exception of learning maps. EP
does not have any learning map type products in its
inventory. It does however have both computer simula-
tions and board game products. EP can also sell product
‘as is’ or can customize the product to whatever extent
is necessary to meet the needs of the client. Although
a direct competitor of [the plaintiff], EP is much smaller
than [the plaintiff]. The president of EP is John Wells.
‘‘EP has been in business since 1983. EP has changed
names and has changed hands a few times over the
years but in 2004, John Wells and John Thomas (both
cofounders of the company in 1983) reacquired the
business and all of its assets. The court credits the
testimony of Wells that throughout its existence, EP’s
simulation technology has gone largely unchanged and
relies in large measure on the original technology
acquired in 1983. Although it has expanded with time,
the inventory of products has been unchanged, for the
most part, since approximately 2009. EP has always
had the ability and the manpower to customize its simu-
lations. EP has had board game simulations in its inven-
tory for many years. EP has not created any new
products or simulations since approximately 2009.
‘‘The court further finds, crediting the testimony of
Wells and the documentary evidence offered by the
defendants, that as of the filing of this lawsuit, most of
this information was known to [the plaintiff]. In 2008,
[the plaintiff] considered acquiring EP. As a result, sub-
ject to a confidentiality and nondisclosure agreement,
[the plaintiff]’s financial advisors and [the plaintiff]
were given access to much of EP’s proprietary informa-
tion. EP disclosed details of its corporate structure;
personnel; sales history; client information; capabilities;
liabilities and other information pertinent to a determi-
nation as to whether it was a good prospect for acquisi-
tion. During this time, Wells and Akerman had
discussions about EP’s capabilities to include the scope
and range of its customization ability. Ultimately, [the
plaintiff] determined not to proceed.2
‘‘Marshall Bergmann was employed by [the plaintiff]
from 2005 until mid-June, 2010. He was a senior director
at the time he left. As such, he had access to much of [the
plaintiff]’s proprietary information and was involved in
many of the proprietary processes, i.e., product pricing
. . . [of the plaintiff]. When Bergmann began work
. . . [for the plaintiff], he signed an employment con-
tract which contained a number of restrictions, to
include a noncompete clause upon his departure. Mate-
rial to the plaintiff’s claim that the contract was
breached by Bergmann and/or interfered with by EP
are the following provisions:
‘‘ ‘2.1 Employee shall not for a period of two (2) years
immediately following the end of the Employee’s active
duties with Employer, either directly or indirectly,
either for himself or for any other person, company or
other business entity:
‘‘ ‘a. Make known or otherwise make available to
any person, company, and/or other business entity the
names and addresses of any clients (whether the corpo-
rate entity or the individuals employed by such corpo-
rate entity) of Employer or any other information
pertaining to them;
‘‘ ‘b. Call on, solicit, or take away, or attempt to call
on, solicit, or take away or communicate in any manner
whatsoever, with any of the clients of Employer;
‘‘ ‘c. Call on, solicit, or take away, or attempt to call
on, solicit, or take away or communicate in any manner
whatsoever, with any of the clients of Employer on
behalf of any business which directly competes with
employer.
‘‘ ‘2.2 For the purposes of this Agreement, clients shall
be defined as any person, company or other business
entity whom the Employer has performed work or ser-
vices for, solicited business and/or collected monies
from, with the twelve month period immediately pre-
ceding the end of the Employee’s active duties with
the Employer.’
‘‘While [working for the plaintiff], Bergmann was
involved in an effort to do business with the Royal Bank
of Canada (RBC). Ultimately, RBC decided not to do
business with [the plaintiff] and decided to give the
business to a Canadian business school. RBC turned
down [the plaintiff]’s offer in June, 2010. Prior to 2010,
RBC was not a client of [the plaintiff]. [The plaintiff]
had not previously done any business with RBC.
‘‘Also in June, 2010, Bergmann accepted a job offer
from EP to work in its New York office. He gave two
weeks’ notice to [the plaintiff]. He did not tell [the
plaintiff] that he was going to work for a competitor.
Bergmann testified that he did not take any contact
lists, client lists, vendor lists or other . . . . informa-
tion with him when he left. This testimony is credited.
Further, Wells testified that Bergmann did not share
[the plaintiff’s] client lists, client information, technol-
ogy, product information, pricing strategies or other
proprietary information. Nor did EP solicit any such
information from Bergmann upon his arrival or at any
time thereafter. This court finds Wells’ testimony
credible.
‘‘Shortly after he began work at EP, Bergmann posted
his new job to his LinkedIn account. Those to whom
he was ‘linked’ on this social media could have received
a notification of this posting. Whether a ‘linked’ individ-
ual received notice of the posting or not would depend
on the particular settings selected by that person. One
of the tasks given Bergmann when he joined EP was
to improve and revamp the EP website, which he did.
Upon completion he posted an invitation to ‘check out’
the new website via his LinkedIn account. Some of the
individuals to whom Bergmann was ‘linked’ were clients
and contacts he had developed while [working for the
plaintiff]. He did not ‘unlink’ these people when he left
[the plaintiff’s employ]. He was not asked to do so. He
never had any discussions with anyone at BTS about
his LinkedIn account. In fact, many people [employed
by the plaintiff] have similar LinkedIn accounts and are
still linked to Bergmann.
‘‘Shortly after he began work at EP, Bergmann con-
tacted Liz Carreiro and Jan Wilmott, both of whom
worked at RBC. Carreiro and Wilmott were the contacts
at RBC Bergmann dealt with when trying to sell the
[plaintiff’s] product/project shortly before his departure
from [its employ]. He had known Jan Wilmott for years,
to include a time when Wilmott did not work at RBC.
In his correspondence, Bergmann advised RBC that he
had taken a new job with EP and he attempted to meet
with and discuss EP’s capabilities for possible business
in the future. The correspondence was clearly designed
to get business with RBC for EP, something readily
acknowledged by Bergmann in his testimony. The cor-
respondence also included some comparisons between
EP and [the plaintiff], which were unfavorable to [the
plaintiff] as well as some arguably disparaging com-
ments about [the plaintiff]. The communications did
not contain any proprietary information belonging to
[the plaintff] and did not make reference to any such
information. Ultimately, RBC did not do any business
with EP. In fact, to date, RBC has done no business
with EP. Bergmann’s last correspondence or contact
with RBC occurred in November, 2010.
‘‘Conversely, after Bergmann left [the plaintiff’s
employ], Akerman maintained regular contact with
RBC. [The plaintiff] continued in discussions with RBC
and in 2013, sold RBC an education/training product.
During that process, [the plaintiff] initially quoted a
particular price to RBC. RBC responded that the price
was too high. As a result, [the plaintiff] developed differ-
ent options by which RBC could obtain the same result
or objective but which would be less costly. The product
was scaled back in some respects in order to achieve
these cost savings. Ultimately, RBC chose one of the
options developed by [the plaintiff]. This option was
$73,000 less expensive than the originally quoted prod-
uct proposal. [The plaintiff] provided the work/product
to RBC and to this day enjoys a good business relation-
ship with RBC. . . .
‘‘While at EP, within two years of his arrival, Berg-
mann was assigned to work in the field at Hewlett
Packard (HP). He did not solicit HP and did not have
any role in securing the business of HP. He was merely
assigned to help deliver the product. HP was a client
of [the plaintiff] as well, though Bergmann never did
any work for HP while he was [employed by the plain-
tiff]. HP remains a client of [the plaintiff], and there was
no evidence that Bergmann’s work on the HP project
included the use of any [of the plaintiff’s] proprietary
or confidential information. Nor was there evidence
offered that Bergmann’s work on the HP project had
any adverse impact on [the plaintiff] or its relationship
with HP.
‘‘Richard Kelly is one of EP’s independent contractors
in Australia. He is also a former employee of BTS, Aus-
tralia, Inc. Kelly left BTS Australia in February, 2009.
After he left BTS Australia, he went to work for a firm
called AJ Lucas. While at AJ Lucas, he had discussions
with BTS Australia about BTS Australia providing a
product/training exercise to AJ Lucas. In connection
with those discussions, BTS Australia gave Kelly a ‘par-
ticipant kit’ for one of its learning map products called
‘Conductor.’ The kit was contained within a cardboard
box, which was designed to look like a large envelope.
It also bore artwork specific to the Conductor game.
Kelly, individually or on behalf of AJ Lucas, was not
asked to enter into a confidentiality agreement with
respect to the participant kit. He was not advised that
either the box or its contents were proprietary or that
they were not to be shared with anyone else. Although
AJ Lucas ultimately determined not to do business with
BTS Australia, no one at BTS Australia asked Kelly to
return the participants kit or the box in which it was
housed. In sum, the box and the kit were given away
by BTS [Australia] to AJ Lucas as a potential client
without any restrictions. When Kelly left his employ-
ment with AJ Lucas, he took the box and the participant
kit home.
‘‘In 2010, Kelly contacted EP about possible employ-
ment opportunities. He was hired as an independent
contractor for marketing and sales of EP’s inventory
of products in Australia. Also in 2010, EP was thinking
about changing its packaging for one of its board game
products, ‘Takeoff,’ and perhaps ‘Wild Fire,’ as well.
During a discussion on this issue, Kelly advised EP that
the box used by [the plaintiff] might be of interest.
Thereafter, he took a photograph of the outside of the
‘Conductor’ box he had received when he was at AJ
Lucas and sent the photographs to EP. EP then did a
mock-up of its own art work for a similar style box.
Bergmann advised EP that Ironwood Lithographers was
the vendor that [the plaintiff] used for its packaging.
He gave Kelly Snider, at EP, the name of Jay Topczewski
as a point of contact at Ironwood and told her to men-
tion his name as the reference. [The plaintiff’s] employ-
ees, to include Bergmann, were never told that vendor
names are proprietary and not to be shared. Bergmann’s
employment contract, which contained a lengthy
description of information deemed ‘confidential,’ did
not include the names of vendors as subject to its non-
disclosure provisions.
‘‘Snider contacted Topczewski by e-mail to inquire
about a quote for packaging. She sent the EP mock-up
as well as the photographs of the ‘Conductor’ partici-
pant kit box. Topczewski did not believe that he could
or should be using the [the plaintiff’s] packaging as a
base design for EP. He declined to do business with EP
and advised [the plaintiff] of his interactions with EP.
‘‘All of the events which purport to comprise the
tortious conduct complained of occurred in the latter
six months of 2010. And notwithstanding these events,
[the plaintiff] continues to enjoy an excellent and ongo-
ing business relationship with Ironwood; RBC changed
from being a prospective client of [the plaintiff] to an
actual client; RBC and [the plaintiff] enjoy an ongoing
business relationship; RBC never gave any business to
EP; EP has done no business with Ironwood; EP never
changed its ‘Take Off’ or ‘Wildfire’ packaging.’’3 (Foot-
notes altered.)
On the basis of these factual findings, the court con-
cluded: ‘‘With these facts found, it is manifest that the
plaintiff’s evidence is so lacking that the determination
that the plaintiff has failed in its burden of proof is
completely unremarkable.’’4 (Footnote altered.) The
court further found that the ‘‘[p]laintiff’s theory of dam-
ages is factually and legally unfounded.’’ The court thus
rendered judgment in favor of the defendants on all
five counts of the plaintiff’s complaint. The court also
found that the plaintiff’s CUTSA claim, although ‘‘color-
able at the outset, portions of it became objectively
specious shortly into the discovery process,’’ and thus
that the plaintiff’s insistence in maintaining certain of
those claims was motivated by improper purposes. Pur-
suant to General Statutes § 35-54, on the basis of that
determination, the court awarded attorney’s fees to EP
in the amount of $171,203.40.5 This appeal followed.
Additional facts will be set forth as necessary.
I
The plaintiff first claims that the trial court abused
its discretion in not permitting it to inspect an adequate
number of EP’s products to ascertain whether EP had
misappropriated trade secrets. We disagree.
The following factual and procedural history is rele-
vant to this claim. On May 7, 2012, the plaintiff served
upon the defendants a request for inspection seeking
to have its expert witness inspect six of EP’s products,
namely: ‘‘[The following] computer simulations of the
defendant [EP] with regard to the (a) user interface,
(b) programming language and (c) the processing meth-
odology (including a demonstration by an operator des-
ignated by [EP] for each: (1) ‘Go Figure—Financial
Services’; (2) ‘Strategic Horizons’; (3) ‘Oil & Gas Per-
spectives’; (4) ‘Business Perspectives.’ [In addition,
these] board simulations/learning maps of [EP]: (1)
‘Wildfire’ [and] (2) ‘Take-off for Teams.’ ’’
On May 14, 2012, the defendants filed an objection
to the plaintiff’s request to inspect in which they argued,
inter alia, that: ‘‘Undeterred by the mountain of evidence
which contradicts [the] plaintiff’s speculation, the plain-
tiff now seeks to accomplish its major objective in this
[litigation—to acquire] [EP]’s trade secrets. With no
solid evidence to rest upon, the plaintiff has filed a
motion to inspect [EP]’s important secret products and
capabilities. [The] plaintiff seeks access to the com-
puter programming language that [EP] uses to operate
its products, as well as [EP]’s processing methodology.
[The] plaintiff seeks access to these essential trade
secrets, even though the evidence clearly shows that
the products [the] plaintiff wants to inspect all predated
Bergmann’s hire.’’ (Emphasis in original.) The defen-
dants addressed each of the products that the plaintiff
sought to inspect, giving reasons as to why the plaintiff’s
request to inspect should be denied, and emphasized
that the plaintiff already had received discovery that
supported the defendants’ claims and concluded that:
‘‘[T]his must be the point in this litigation where [EP]’s
essential trade secrets are deemed worthy of protection
from its competitor. This should be especially so where
the evidence which supposedly justifies the disclosure
or inspection of such trade secrets is totally lacking.
Mere speculation and unsupported allegations should
never allow access to competitive trade secrets.’’
On May 18, 2012, the plaintiff filed a reply to the
defendants’ objection to its request to inspect EP’s prod-
ucts, arguing that the defendants’ objection was actually
a motion for protective order and thus that the defen-
dants had the burden to ‘‘demonstrate that disclosure
of allegedly confidential information will work a clearly
defined and very serious injury’’ to their business.
(Emphasis omitted; internal quotation marks omitted.)
The plaintiff argued that the defendants had completely
failed to meet this burden and that the parties had
already established measures to protect their trade
secrets by agreeing to a general protective order.
On May 24, 2012, the court, Dubay, J., held a hearing
on the dispute surrounding the plaintiff’s request to
inspect EP’s products at which counsel for the parties
presented oral argument. The court ordered, inter alia,
the parties to submit proposed orders regarding their
respective positions on the parameters of any inspec-
tion to be conducted of EP’s products, including the
scope of the inspection and the identity of an expert
to conduct said inspection. After receiving the parties’
proposals, the court issued an order on June 19, 2012,
that the plaintiff and EP each name an expert and that
those two experts confer to agree upon a neutral expert
to conduct the inspection. The court ordered that if the
parties could not come to an agreement in that regard,
that the parties would submit names of proposed
experts to the court and that it would appoint a neutral
expert to conduct the inspection; that said expert would
abide by the protective order previously agreed to by
the parties. As to the scope of the inspection, the court
ordered: ‘‘The defendants are to provide the neutral
expert with all documentary, electronic and physical
information, and/or access to said information or indi-
viduals with that information, for the purpose of con-
ducting an inspection of up to twenty percent (20%) of
the product offerings of [EP] listed in plaintiff’s motion
to inspect dated May 14, 2012. The choice as to which
products to be inspected shall be within the sound
discretion of the neutral expert.’’ The court further
ordered: ‘‘Upon the conclusion of the inspection, the
neutral expert shall prepare and issue an interim report
designated ‘Attorney’s Eyes Only’ directed to counsel
for the parties. The report shall state in sufficient detail,
but without disclosing proprietary information belong-
ing to [EP] or [the plaintiff] the neutral expert’s findings
with regard to the neutral expert’s review of each of
the products, whether there is a significant similarity
between the products of [EP] and [the plaintiff] and, if
there is a similarity, whether the similarity is significant
enough to give rise to an inference of misappropriation
of [the plaintiff]’s products by [EP], or whether addi-
tional inquiry by the neutral expert is warranted in order
to make such determination.’’
The plaintiff thereafter sought clarification of the
court’s June 19, 2012 order, specifically as to the number
of EP’s products the court was permitting the neutral
expert to inspect.6 The court held a hearing on the
plaintiff’s motion for clarification on July 6, 2012. Pri-
marily, the plaintiff sought clarification as to whether
the court intended the inspection to encompass 20 per-
cent of EP’s entire product line, which equated to
approximately six products, or 20 percent of the six
products that the plaintiff listed in its request to inspect.
At the hearing, the court clarified that its order was
that the plaintiff could inspect 20 percent of the prod-
ucts that it had listed in its request, not 20 percent
of EP’s entire product line. Upon hearing the court’s
clarification, the plaintiff made an oral motion for
reconsideration of the scope of the inspection to include
more than 20 percent of the six products it had listed
in its request for inspection as that figure would equate
to only one product. The court explained to counsel
for the plaintiff: ‘‘I know that you believe that the scope
of the audit is insufficient and it may not serve your
purpose for . . . it certainly doesn’t give you what you
sought. However, in this case, I was very close to finding
that an insufficient showing had been made to allow
any discovery whatsoever, which was the position that
was urged upon me by [counsel for the defendants];
that essentially the plaintiff had not made any showing
in this case which should allow a raid of [20] percent
of the work product of the defendant. And so . . . I
decided that 20 percent of 20 percent, or 4 percent is
better than zero percent.’’ The court permitted the par-
ties to file posthearing memoranda on the plaintiff’s
motion to reconsider. On July 19, 2012, the court reaf-
firmed its June 19, 2012 order.
The parties thereafter reached an impasse in choos-
ing a neutral expert to conduct the inspection, and the
court thus issued an order on August 28, 2012, naming
said expert, Francois Thrower. Thrower conducted his
inspection and on January 2, 2013, issued his report,
wherein he explained: ‘‘It is now abundantly clear to
me that a broader review of EP products is necessary
to assess the likelihood that the products of EP are
copies or derivative works of [the plaintiff’s] products.’’
Thrower opined that the inspection of the court-permit-
ted singular product ‘‘is simply too few products to
determine if there are sufficient similarities in products
and whether technology and know-how have been mis-
appropriated.’’ Thrower noted that he reviewed two
versions of EP’s ‘‘Wildfire’’ product. He did not, how-
ever, set forth any findings regarding that inspection.
Rather, Thrower explained that a review of ‘‘both com-
puter and noncomputer-based products including
generic and customized examples is required.’’ He thus
requested ‘‘as a starting point’’ to inspect all six of the
products identified in the plaintiff’s May 14, 2012
request for inspection.
On January 8, 2013, the plaintiff filed a motion for
order seeking to inspect the products identified by
Thrower in his report. The defendants filed an objection
to that motion, arguing, inter alia, that Thrower had
not, on the basis of his inspection of Wildfire, deter-
mined that they had stolen the plaintiff’s trade secrets,
but, rather, Thrower was simply seeking to expand the
scope of the inspection to obtain more information to
make that determination. Thrower did not opine as
to Wildfire’s similarity, or lack thereof, to any of the
plaintiff’s products. The court, Dooley, J., held a hearing
on the plaintiff’s motion and the defendant’s objection
on February 13, 2013, at which the plaintiff presented
the testimony of Thrower. Thrower testified that, upon
being appointed to conduct the inspection in this case,
he first met with the plaintiff to familiarize himself with
their products. Following that meeting, but before meet-
ing with EP to review its product, he sent an e-mail to
the parties stating that ‘‘it was not possible for me to
render a complete judgment without having a broader
access to both sides’ products.’’ He testified that he was
aware that the court had issued an order allowing the
inspection of only one of EP’s products, which he was
permitted to choose, but that he had reviewed seven-
teen of the plaintiff’s products and wanted to ‘‘make a
similar kind of comparison with EP’s products.’’
Thrower testified that he had chosen to inspect Wildfire
because he had learned from the depositions of Wells
and Bergmann that the packaging of Wildfire had been
a source of contention between the parties. On the basis
of his inspection, Thrower testified that he could say
with a reasonable degree of certainty that there were no
similarities between Wildfire and any of the plaintiff’s
products. Despite that conclusion, however, Thrower
testified that he did not have enough information to
conclude that none of EP’s products are, as the plain-
tiff’s counsel stated, ‘‘remarkably similar’’ to any of [the
plaintiff’s] products. On that basis, the plaintiff asked
the court to expand the scope of the inspection to
permit Thrower to inspect more of EP’s products.
On February 15, 2013, the court denied the defen-
dant’s motion for order seeking to inspect additional
EP products. The court explained: ‘‘It appears to this
court that granting the plaintiff’s motion for order so
as to allow the further inspection by Mr. Thrower of
[EP]’s products would necessarily require this court to
revisit and undo the prior determination of Judge
Dubay. The question[s] of whether, how and to what
extent [EP]’s products would be inspected by a court-
appointed expert were thoroughly and aggressively liti-
gated before Judge Dubay. The outcome of that litiga-
tion is contained in the court’s order dated June 19,
2012, as clarified by order dated July 19, 2012. The
court permitted a very limited inspection, which could
potentially be expanded if the initial limited inspection,
by virtue of its findings, gave rise to such an expansion.
Mr. Thrower determined that [EP]’s product chosen for
inspection had absolutely no similarity to any of the
plaintiff’s products. Thus, by virtue of the court’s prior
determinations, no further inspection is warranted. This
court gives ‘law of the case’ deference to these prior
orders. . . . The fact that Mr. Thrower determined not
to follow the court’s directive and simply render an
opinion as to the single product chosen, and chose
instead to request greater access so that he might make
a more informed judgment does not change the analysis.
It was for the court, following input from both parties,
to determine the scope of the expert’s assignment and
the role he might play in the litigation. His desire to
play a different role or to expand the scope of his
assignment is not reason, at this juncture, to revisit or
change Judge Dubay’s decision.’’
On appeal, the plaintiff claims that the court abused
its discretion in permitting it to inspect only one of EP’s
products because the defendants failed to show good
cause to limit the plaintiff’s discovery request pursuant
to Practice Book § 13-5. Our Supreme Court has stated,
‘‘We have long recognized that the granting or denial
of a discovery request rests in the sound discretion of
the [trial] court, and is subject to reversal only if such
an order constitutes an abuse of that discretion. . . .
[I]t is only in rare instances that the trial court’s decision
will be disturbed. . . . That ample discretion is limited,
however, by the provisions of the rules [of practice]
pertaining to discovery; Practice Book §§ 217–221 [now
§§ 13-2 through 13-5]; especially the mandatory provi-
sion that discovery shall be permitted if the disclosure
sought would be of assistance in the prosecution or
defense of the action. . . . The [party] opposing . . .
retains the ability [however] to object to such requests
by any number of procedural vehicles, including written
objection, motion to quash, motion to limit, or motion
for a protective order. See Practice Book § 13-5 . . . .
The court, in its discretion, may grant or deny such
objections as it deems appropriate.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Brody v. Brody, 153 Conn. App. 625, 637–38, 103 A.3d
981, cert. denied, 315 Conn. 910, 105 A.3d 901 (2014).
Here, on the basis of the arguments of the defendants,
the court determined that it was limiting the scope of
the inspection on the basis of the weakness of the
plaintiff’s argument that the allegations of their com-
plaint were based upon anything more than mere specu-
lation. Although the plaintiff claims that the court
abused its discretion in limiting the scope of its inspec-
tion of EP’s products, it has not challenged as erroneous
the basis for the court’s limitation on that inspection,
the court’s determination that the plaintiff’s request for
inspection was based upon speculative allegations of
the misappropriation of trade secrets. On the basis of
the defendants’ arguments that the plaintiff’s allegations
were based solely upon speculation, the court remarked
that it was very close to denying the request for inspec-
tion altogether. On the basis of the court’s finding in
this regard, the court acted well within its discretion
in limiting the scope of the inspection.
The plaintiff also claims that the court abused its
discretion in deferring to Judge Dubay’s limitation of
the scope of the inspection as ‘‘the law of the case.’’
‘‘The law of the case doctrine provides that [w]here a
matter has previously been ruled upon interlocutorily,
the court in a subsequent proceeding in the case may
treat that decision as the law of the case, if it is of the
opinion that the issue was correctly decided, in the
absence of some new or overriding circumstance.’’
(Internal quotation marks omitted.) Mazier v. Signa-
ture Pools, Inc., 159 Conn. App. 12, 28, 123 A.3d 1, cert.
denied, 319 Conn. 933, 125 A.3d 207 (2015). Here, it is
clear from the court’s explanation of its denial of the
plaintiff’s motion for order permitting the inspection of
additional EP products that the court found that Judge
Dubay had correctly decided the plaintiff’s earlier, heav-
ily litigated request to inspect EP’s products and the
objection filed by EP and that no new or overriding
circumstance had arisen that would form the basis for
an expansion of that order. Thus, the plaintiff’s claim
that the court abused its discretion in this regard also
must fail.
II
The plaintiff next claims that the trial court erred in
determining that the name and identity of the plaintiff’s
vendor was not a trade secret. We disagree.
‘‘The question of whether information sought to be
protected by [CUTSA] rises to the level of a trade secret
is one of fact for the trial court. . . . [When] the factual
basis of the court’s decision is challenged we must
determine whether the facts set out in the memorandum
of decision are supported by the evidence or whether,
in light of the evidence and the pleadings in the whole
record, those facts are clearly erroneous. . . . In other
words, to the extent that the trial court has made find-
ings of fact, our review is limited to deciding whether
those findings were clearly erroneous. . . . A finding
of fact is clearly erroneous when there is no evidence
in the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed. . . . In making
this determination, every reasonable presumption must
be given in favor of the trial court’s ruling. . . .
‘‘With respect to what constitutes a trade secret, the
meaning of that term is set forth at General Statutes
§ 35-51 (d). Under that statutory subsection, trade
secret is defined as information, including a formula,
pattern, compilation, program, device, method, tech-
nique, process, drawing, cost data or customer list that:
(1) Derives independent economic value, actual or
potential, from not being generally known to, and not
being readily ascertainable by proper means by, other
persons who can obtain economic value from its disclo-
sure or use, and (2) is the subject of efforts that are
reasonable under the circumstances to maintain its
secrecy. General Statutes § 35-51 (d).’’ (Citations omit-
ted; internal quotation marks omitted.) Lydall, Inc. v.
Ruschmeyer, 282 Conn. 209, 220–21, 919 A.2d 421(2007). Accordingly, to make out a prima facie case
for a violation of CUTSA, the plaintiff was required to
present sufficient evidence that, if believed, would
prove that its ‘‘vendor information consisting of the
unpublished name and e-mail address of the vendor
representative . . . Topczewski,’’ had independent
economic value and that the plaintiff made reasonable
efforts to maintain the secrecy of his identity.
Here, the trial court found: ‘‘The plaintiff also failed
to establish that the name of the vendor who makes
the packaging is a trade secret. [The plaintiff’s] employ-
ees, to include Bergmann, were never told that vendor
names are proprietary and not to be shared. Bergmann’s
employment contract, which contained a lengthy
description of information deemed ‘confidential,’ did
not include the names of vendors as subject to its non-
disclosure provisions. The fact that Bergmann told
Snider to use his name further supports the conclusion
that Bergmann was under no obligation to keep [the
plaintiff’s] vendor names secret. Ironwood was identi-
fied as a partner of [the plaintiff’s] predecessor in inter-
est, The Real Learning Company, in that company’s
website. Ironwood has no contractual obligation or
understanding with [the plaintiff] that it must keep its
status as the [the plaintiff’s] box maker a secret. [The
plaintiff] discloses Ironwood as its printer/vendor on
those occasions that Ironwood is required to speak
directly to the client or on those occasions when Iron-
wood ships the product directly to the client.
‘‘In the face of this evidence, [the plaintiff] offers only
the testimony of Akerman that the box and vendors’
names are trade secrets. This is not sufficient.
‘‘Furthermore, [the plaintiff] failed to establish that
either the box or the vendor name was misappropriated
or obtained through ‘improper means.’ BTS Australia
gave the box to Kelly when Kelly worked for AJ Lucas.
It did so without restriction of any sort. It required no
confidentiality agreement; did not request its return and
never told Kelly the box (or even its content) were
proprietary or not to be shared. Kelly, who was not
even an employee of EP at the time, was under no
obligation or duty to maintain the box’s secrecy. He
took it home, where it stayed. Months later, when Kelly
worked for EP, he took a picture of the outside of the
box and sent it to EP. [The plaintiff] offers no evidence
to contradict these facts. Nor does [the plaintiff] offer
a cogent explanation as to how EP’s possession of the
photograph of the outside of the box can be the result
of ‘misappropriation‘ under these facts.
‘‘Similarly, for the same reasons that the vendor iden-
tities cannot be considered trade secrets, their use or
disclosure cannot constitute misappropriation. Berg-
mann was not under any duty to maintain the secrecy
of the vendor’s identities. The names were therefore
not obtained through improper means, and their use
by EP was not misappropriation.’’
The plaintiff claims that the trial court erred in focus-
ing on the identity of Ironwood, versus the ‘‘unpublished
personal contact information for Topczewski’’—that
‘‘[t]he trial court erred when it failed to address the
evidence as to the vendor contact information and
instead referenced evidence that the identity of Topc-
zewski’s employer, Ironwood, was not confidential as
a basis for its determination that [the plaintiff]’s vendor
information is not a trade secret.’’ The plaintiff argues,
‘‘The vendor, Ironwood, does not publish Topczewski’s
name or e-mail address; therefore, EP could have
obtained his name and e-mail only through Bergmann.’’
The court’s determination that the names of the plain-
tiff’s vendors did not constitute trade secrets logically
encompasses the employees of those vendors. The fact
that EP discovered Topczewski’s identity and e-mail
address from Bergmann does not demonstrate that Ber-
gmann was the only way that that information could
have been obtained, that that information had any inde-
pendent economic value, or that either the plaintiff or
Ironwood itself had taken measures to maintain the
secrecy of that information. On the basis of the record
before us, we cannot conclude that the court erred in
determining that the plaintiff’s ‘‘vendor contact informa-
tion’’ was not a trade secret under CUTSA.
III
The plaintiff also claims that the trial court improp-
erly denied its request for injunctive relief under Gen-
eral Statutes § 35-52 (a). We disagree.
The trial court found: ‘‘Alternatively, the plaintiff
seeks injunctive relief. CUTSA does allow for the grant-
ing of injunctive relief, in appropriate cases, in addition
to or in lieu of damages . . . § 35-52 (a). However,
nor has [the] plaintiff established that injunctive relief
is appropriate.
‘‘Bergmann left [the plaintiff’s employ] over four
years ago. The last act by Bergmann which is even
arguably a CUTSA violation occurred in November,
2010. If, arguendo, the RBC solicitation was considered
a CUTSA violation, it was done without malice or
improper intent; it was isolated in nature; it caused no
harm to [the plaintiff]; and it has not been repeated.
There is no evidence or indication that Bergmann or
EP have done anything wrong since that time, and no
indication that Bergmann or EP intend to use any of
[the plaintiff]’s confidential information into the future.
. . . Thus, absent any actual damages or cause for
injunctive relief, the CUTSA claim premised upon the
RBC solicitation also fails.’’ (Citation omitted; internal
quotation marks omitted.)
Our standard of review of a trial court’s denial of a
request for injunctive relief is well settled. ‘‘The issu-
ance of an injunction and the scope and quantum of
injunctive relief rests in the sound discretion of the
trier. . . . A prayer for injunctive relief is addressed
to the sound discretion of the court and the court’s
ruling can be reviewed only for the purpose of determin-
ing whether the decision was based on an erroneous
statement of law or an abuse of discretion.’’ (Internal
quotation marks omitted.) Stamford v. Ten Rugby
Street, LLC, 164 Conn. App. 49, 73, A.3d (2016).
Section 35-52 (a) provides: ‘‘Actual or threatened mis-
appropriation may be enjoined upon application to any
court of competent jurisdiction. An injunction shall be
terminated when the trade secret has ceased to exist,
but the injunction may be continued for an additional
reasonable period of time in order to eliminate commer-
cial advantage that otherwise would be derived from
the misappropriation.’’
The plaintiff claims that the trial court improperly
denied its claim for injunctive relief on the basis of
three allegedly erroneous factual findings. First, the
plaintiff argues that ‘‘the defendants have a continuing
duty not to use the plaintiff’s existing trade secrets.’’
Second, the plaintiff claims that ‘‘a finding of malice or
improper intent is not required for injunctive relief.’’
Third, the plaintiff contends that ‘‘a finding of threat-
ened misappropriation, not actual, is required for
injunctive relief.’’ We need not address the plaintiff’s
arguments in depth, as each of those grounds is easily
dispatched by the trial court’s determination that the
plaintiff had presented no evidence whatsoever of any
wrongdoing by either of the defendants in the past,
any intended wrongdoing in the future, or any harm
stemming from any alleged wrongdoing. The plaintiff’s
claim that the trial court erred in denying its request
for injunctive relief is thus without merit.
IV
The plaintiff next claims that the trial court erred in
finding that it had maintained its CUTSA claims in bad
faith.7 We disagree.
In determining whether the plaintiff’s CUTSA claims
were maintained in bad faith, the trial court set forth
the following additional facts. ‘‘[The plaintiff] initially
claimed that Kelly misappropriated board game tech-
nology and processes. This claim was made largely due
to Akerman’s suspicions that Kelly had done so. Those
suspicions purportedly arose out of the coincidental
timing regarding Kelly’s departure from [BTS Australia]
and EP’s addition of board games to its advertised
inventory. Specifically, Akerman said EP began adver-
tising board game product on its website in January,
2009, the same time Kelly had left [BTS Australia] to
go to EP. Therefore, Akerman suspected and assumed
that Kelly misappropriated board game trade secret
information and gave it to EP in January, 2009. How-
ever, not long after this litigation began, that these prem-
ises were factually flawed came to light. First, EP has
had board game technology and advertised such (to
include on its website) for many years prior to 2009.
Second, Kelly did not leave [BTS Australia] in January,
2009. He left in February, 2009. Kelly did not go to EP
from [BTS Australia] and had no contact with EP until
January, 2010. In the interim, he worked for AJ Lucas.
Further, the evidence established the [the plaintiff] was
fully aware that Kelly did not leave until February, 2009,
and that he did not pursue employment with EP at that
time. Indeed, after he left BTS Australia, he discussed
a potential business transaction between AJ Lucas and
BTS Australia.
‘‘An additional purported justification for pursuing
these claims was Akerman’s suspicion that Bergmann
had also shared product technology with EP. This suspi-
cion turns out to be equally flawed and wholly incredi-
ble. Akerman claimed that EP did not have the capacity
to provide ‘level 2’ customization to its simulation prod-
ucts until Bergmann began working at EP. Therefore, he
reasoned, Bergmann must have shared that technology
and processes with EP. However, as found above,
throughout its existence, EP has had the ability to cus-
tomize product to whatever extent was necessary in
order to meet a client’s needs. A review of the EP
website going back many years confirms this testimony.
Further, as already found above, [the plaintiff] was fully
aware of EP’s ability to perform ‘level 2’ customization
of its simulations as a result of the information provided
by Wells and EP during the 2008 due diligence. The
information disclosed by EP during that due diligence
included the extent to which EP’s work involved cus-
tomization and the time value of its customization busi-
ness. Again, Akerman’s stated ‘suspicions’ as
justification for this lawsuit were not well founded,
could have been debunked with a modicum of due
diligence and in fact, are not credible.8
‘‘Akerman further testified that in 2010, when it was
brought to his attention that EP had contacted Iron-
wood and appeared to have a ‘Conductor’ participant
kit, he became further concerned or suspicious of EP.
However, soon into the litigation, [the plaintiff] knew
that the box had been given to Kelly by [BTS Australia]
without restriction, while he was at AJ Lucas. [The
plaintiff] was provided chapter and verse as to the cir-
cumstances under which the Conductor box and kit
came into Kelly’s possession. [The plaintiff] has never
developed any evidence that the kit itself was ever seen
or used by EP. Indeed, EP still has no learning map
type of product in its inventory.
‘‘Nothwithstanding [the plaintiff]’s actual knowledge
of when Kelly left, the complete debunking of the
assumptions about Kelly, and [the plaintiff]’s knowl-
edge that EP could in fact customize its product before
2010, [the plaintiff] continued to seek extraordinary
discovery in this case to include all of EP’s product
technology.9 The court (Dubay, J.), recognizing the
dearth of evidence to support [the plaintiff]’s suspi-
cions, ordered a very limited review, by a court-
appointed expert, of a single EP product. The expert
found no evidence of any similarity between the EP
product chosen by [the plaintiff] and any of [the plain-
tiff]’s products. The court (Dooley, J.) thereafter deter-
mined that no justification existed for a further
intrusion by [the plaintiff] into EP’s products or prod-
uct technology.
‘‘On the first day of trial [the plaintiff] advised EP
and the court that the CUTSA claim would be limited
and would not include any claim that EP misappropri-
ated product technology. [The plaintiff] did not concede
that no evidence existed to support the claim, but
rather, blamed the court’s ruling restricting access to
EP’s products, as the reason that it was unable to prove
its suspicions regarding EP. Notwithstanding [the plain-
tiff]’s pronouncement on the first day of trial, EP has
offered voluminous testimony and evidence that no
such misappropriation occurred. It d[id] so not to dis-
prove the plaintiff’s case, but to advance its own claim
that the CUTSA action was brought and maintained in
bad faith.
‘‘EP’s claim that the CUTSA count was advanced in
bad faith relies largely on the utter dearth of evidence,
as outlined above, to support the initial allegations of
product technology misappropriation. [The plaintiff]
responds that the lawsuit was only commenced after
a series of events which gave rise to grave concern
regarding Bergmann and EP, to wit: Bergmann did not
tell [the plaintiff] he was going to a competitor; [the
plaintiff] learned that Bergmann was at EP; Bergmann
contacted RBC within weeks of joining EP (conduct
which [the plaintiff] believed violated the employment
agreement); Ironwood was contacted by EP and [the
plaintiff] learned that EP had what appeared to be a
participant kit for one of its learning map products; EP
requested a similar packaging design to the one used
by [the plaintiff] for Conductor. Under these circum-
stances, [the plaintiff] argues it had legitimate reason
to believe Bergmann was sharing [the plaintiff’s] propri-
etary information and trade secrets.
‘‘This court agrees that at its inception, the plaintiff
had a colorable CUTSA claim. [The plaintiff] had
received sufficient information to give rise to an infer-
ence that EP was in possession of [the plaintiff’s] trade
secrets and pursuing the how and the extent of the
situation through this litigation was not bad faith on
the part of [the plaintiff]. However, not far into the
discovery process, it was abundantly clear that the
product technology claim had no merit. All of [the plain-
tiff]’s suspicions or concerns regarding product technol-
ogy misappropriation should have been adequately laid
to rest by the end of 2011. By then, it was abundantly
clear that EP had not modified nor added to its technol-
ogy or product inventory since approximately 2009,
long before Kelly and Bergmann joined EP. This was
made clear to [the plaintiff] through discovery requests;
deposition testimony; and responses to document
requests.
‘‘Further, Akerman’s factual assumptions and suspi-
cions regarding Kelly were fully debunked by then. Kelly
was not hired by EP until 2010, and EP had board games
long before Kelly was hired. To the extent that the
participant kit for ‘Conductor’ raised concerns, it was
also clear that EP does not have and has never had a
learning map type of product. Conductor is a learning
map product. For [the plaintiff] to maintain these claims
after the discovery process made crystal clear that the
very premises upon which his suspicions were purport-
edly based were factually inaccurate gives rise to an
inference that the litigation was maintained for
improper purposes. Indeed, to date, aside from factually
flawed premises and the unfounded suspicions of Aker-
man, [the plaintiff] has offered no explanation for per-
sisting in its claim of product technology
misappropriation.
‘‘In sum, no later than end of 2011, there was simply
nothing left to justify or explain [the plaintiff]’s persis-
tence in pursuing the CUTSA claims as to product tech-
nology. [The plaintiff]’s quest to obtain EP product
technology through discovery and court process, after
their claims were laid bare as meritless, gives rise to
an inference of improper motive on the part of [the
plaintiff]. The court finds that [the plaintiff]’s determina-
tion to maintain the product technology CUTSA claims
as of the end of calendar year 2011 and through to the
first day of trial was made in bad faith as that term has
been defined by our appellate courts. The court will
hear evidence as to the attorneys fees incurred
defending these claims during that time period.
‘‘The claim that the Conductor box was a trade secret
and was misappropriated was, as found, wholly without
merit. Akerman’s testimony, if believed, might have
established that the packaging was considered a trade
secret, thus making this claim ‘colorable’ at the incep-
tion of the litigation. However, in light of the circum-
stances under which the box and its content came into
Kelly’s possession, i.e., it was given to him by [the plain-
tiff] without restriction while he was employed at AJ
Lucas, the claim of ‘misappropriation’ as defined by
CUTSA was demonstrably false and no longer ‘color-
able’ upon those circumstances coming to light. Main-
taining such a claim, under those circumstances,
amounts to bad faith. Those circumstances were known
to [the plaintiff] (if not before commencement of the
litigation) certainly by the end of 2011. The court will
hear evidence as to the claimed attorney’s fees incurred
defending this claim after that date and through trial.
‘‘The claim that the vendor names and contact infor-
mation, specifically, Ironwood, was a trade secret was
supported by scant evidence. However, Akerman did
testify that the information is presently not available
to the public and that [the plaintiff] does not advertise
or share openly its vendor’s identities. While the court
found the evidence lacking in terms of the plaintiff’s
burden, it was not a claim ‘without color.’
‘‘The claim that the RBC solicitation involved the
misappropriation of a trade secret was also, throughout
the litigation, a colorable claim. While the court has
found that the solicitation itself did not include the use
of trade secrets such as pricing information, RBC was
a potential client of [the plaintiff]; was an entity [the
plaintiff] had tried to do business with and clearly hoped
to do business with in the future. Wilmott and Carreiro
were client contacts developed by Bergmann while
[working for the plaintiff]. Both Wells and Akerman
agree that potential clients and current clients can be
proprietary in nature and can be and often are consid-
ered trade secrets. To the extent that Bergmann was
under a duty not to disclose such information, his solici-
tation of RBC on behalf of EP could give rise to a good
faith claim of a CUTSA violation. The court did not
resolve this aspect of the CUTSA claim, however,
because it did not need to do so. The CUTSA claim
premised upon the RBC solicitation was colorable. That
the conduct, for the reasons articulated above, could
not be the basis for an award of damages or the granting
of injunctive relief, does not alter this conclusion. Los-
ing on the merits for these reasons, does not make the
claim without color at the time it is brought or tried.
‘‘Whether or not the CUTSA claim was colorable at
the outset, portions of it became objectively specious
shortly into the discovery process. [The plaintiff]’s per-
sistence in maintaining certain of these CUTSA claims,
to include those which it dropped before trial and one
which it brought to trial (the box), was motivated by
improper purposes.’’ (Footnotes altered.)
On appeal, the plaintiff challenges the court’s bad
faith determination on the grounds that the court ‘‘com-
pletely misapprehend[ed] [its] concerns relating to EP’s
ability to customize its products after Bergmann left
[its employ] and joined EP in 2010’’ and ‘‘ignore[d]’’
certain facts regarding EP’s product upgrades. (Empha-
sis omitted.) The plaintiff’s arguments in this regard are
belied by the trial court’s thorough decision addressing
those very issues. The record supports the trial court’s
determination and it is not the role of this court to retry
those issues.10 We thus reject the plaintiff’s contention
that the trial court’s bad faith determination was
erroneous.
V
The plaintiff finally claims that the trial court erred
in awarding attorney’s fees to EP on the basis of its
finding of bad faith against the plaintiff without appor-
tioning that award to only the claims found to have
been made in bad faith. We disagree.
At the conclusion of its October 16, 2014 memoran-
dum of decision, the court directed the parties to con-
tact the court officer to schedule a hearing on the
defendants’ request for attorney’s fees. On March 6,
2015, EP filed a motion for attorney’s fees, costs and
postjudgment interest pursuant to § 35-54. The court
held a hearing on that motion on March 16, 2015.
Although the plaintiff did not file a written objection
to EP’s motion prior to the hearing, its counsel
expressed at the hearing that it objected to the motion
and that it assumed that the hearing would be eviden-
tiary. Counsel for the plaintiff also requested permission
to file a memorandum in opposition to EP’s motion
after the hearing. The court stated: ‘‘Well, to the extent
that either side wants to put on evidence, I’m certainly
going to permit that.’’ The court also indicated that it
would permit the plaintiff to file a memorandum follow-
ing the hearing. The court then asked counsel for EP
to proceed on his motion. Counsel for EP indicated to
the court that it was relying as evidence for its claim
for attorney’s fees the affidavits that he had attached
to his March 6, 2015 motion. Those affidavits were
marked by the court as defendants’ exhibit A. By way
of objection to the amount of attorney’s fees requested
by EP, the plaintiff argued that certain of the time billed
by counsel for EP should be segregated out of their bill
because it did not concern the claims that the trial court
had determined were maintained in bad faith. Upon
inquiry by the court, the plaintiff agreed that the court
should look at the billing records from February, 2013,
up ‘‘to the time of trial and make a reduction because
the product technology was off the table during that
time period . . . .’’ Following its argument that certain
billing should be excised by way of timing, the court
asked, ‘‘Anything further by way of . . . putting me on
notice of what you anticipate challenging from a factual
standpoint, or a legal argument you’d like to present?’’
The plaintiff responded only that it did not believe that
EP’s claim for costs were appropriate under the law,
and stated that it would brief that argument fully. The
court advised counsel that once it received all of the
parties’ posthearing filings, it would assess ‘‘whether
[it could] take it on the papers or whether [it would]
need to bring everybody back in.’’ Counsel for the defen-
dant thanked the court and the court set a briefing
schedule, after which it stated, consistent with its ear-
lier statement: ‘‘And I will review everything that is
submitted, and I will decide at that point whether I can
resolve the question of award on papers, or whether I
need to bring you back. If, having reviewed each other’s
submissions, you think one way or the other, then you
should communicate to [the court officer] whether the
court can take it on the papers or you feel strongly that
you want to come back. As I said, I’ll have your input
on that, and ultimately I will decide whether I take it
on the papers.’’
On April 7, 2015, the plaintiff filed an objection to
EP’s motion for attorney’s fees, costs and interest, in
which it stated: ‘‘The issue for the court’s determination
now is the reasonableness of [EP]’s request for attor-
ney’s fees for the plaintiff’s maintenance of claims of
misappropriation of the plaintiff’s product technology
and box design after 2011.’’ The plaintiff argued, inter
alia, that EP’s claimed amount of attorney’s fees failed
to properly apportion the amount of time spent on the
claims that the court found to have been pursued in
bad faith, versus its colorable claims, and posited that
the appropriate award of attorney’s fees, after proper
apportionment, would be $60,998.70. The plaintiff also
objected to EP’s counsel billing their full hourly rate
for time spent traveling as unreasonable.11
In response to the plaintiff’s objection, EP argued
that the plaintiff’s calculation of attorney’s fees was
based upon the incorrect premise that if a billable item
involves both a colorable claim and a bad faith claim,
then it cannot be recovered. EP argued to the con-
trary—that the plaintiff’s colorable claims and bad faith
claims were so intertwined that they could not be sepa-
rated. The plaintiff filed a surreply to EP’s response,
and EP filed a reply to the plaintiff’s surreply, wherein
both parties reiterated their respective positions on the
apportionment of fees between colorable claims and
those made in bad faith. Nowhere in any of those post-
hearing filings did either party request an evidentiary
hearing before the court.12
On May 21, 2015, the court issued an order in which
it concluded that ‘‘it would be impossible, due to the
intertwined nature of the CUTSA claims with the tort
claims, as well as the intertwined nature of both the
colorable and noncolorable CUTSA claims, to attempt
to segregate out specific invoice entries or apportion
only some of the fees to the CUTSA claim brought in
bad faith.’’ The court thus awarded attorney’s fees in
the amount of $171,203.40, which was the amount
requested by EP, minus a 10 percent reduction to
account for the ‘‘defense of the other causes of action
and/or the colorable CUTSA claims . . . .’’
On appeal, the plaintiff challenges the award of attor-
ney’s fees to the plaintiff on the grounds that EP failed to
meet its burden of distinguishing between the plaintiff’s
colorable claims and those maintained in bad faith and
apportioning the claimed fees accordingly, and that the
court erred in accepting EP’s allegedly unfounded con-
tention that its defense of the plaintiff’s colorable claims
constituted ‘‘approximately 10 percent of the case.’’
‘‘We review the reasonableness of the court’s award
of attorney’s fees under the abuse of discretion stan-
dard. . . . Under the abuse of discretion standard of
review, [w]e will make every reasonable presumption
in favor of upholding the trial court’s ruling, and only
upset it for a manifest abuse of discretion. . . . [Thus,
our] review of [the amount of attorney’s fees awarded]
is limited to the questions of whether the trial court
correctly applied the law and reasonably could have
reached the conclusion it did. . . . A court has few
duties of a more delicate nature than that of fixing
counsel fees. The issue grows even more delicate on
appeal . . . for the trial court is in the best position
to evaluate the circumstances of each case.’’ (Internal
quotation marks omitted.) East Windsor v. East Wind-
sor Housing, Ltd., LLC, 150 Conn. App. 268, 275, 92
A.3d 955 (2014).
In issuing its award of attorney’s fees to EP, the
court relied upon our Supreme Court’s decision in Total
Recycling Services of Connecticut, Inc. v. Connecticut
Oil Recycling Services, LLC, 308 Conn. 312, 63 A.3d
896 (2013), in which the court held: ‘‘[W]hen certain
claims provide for a party’s recovery of contractual
attorney’s fees but others do not, a party is nevertheless
entitled to a full recovery of reasonable attorney’s fees
if an apportionment is impracticable because the claims
arise from a common factual nucleus and are inter-
twined.’’ Id., 333. In light of the trial court’s determina-
tion that the plaintiff’s claims were intertwined to the
point that it would be impossible to separate them,
we disagree, as did the trial court, with the plaintiff’s
contention that EP failed to meet its burden of distin-
guishing between the plaintiff’s colorable claims and
those maintained in bad faith. The court was free to
accept or reject EP’s contention that its defense of
the plaintiff’s colorable claims accounted for only 10
percent of the claimed fees and properly exercised its
discretion in fashioning its award of attorney’s fees
to EP.
The judgment is affirmed.
In this opinion the other judges concurred.
1
As a preliminary matter, the trial court explained: ‘‘The court does not
attempt to include in this decision all of the evidence relied upon in the
court’s factual findings. The court has considered all of the evidence admit-
ted, and the reference to any subset of the evidence presented should not
be construed as identifying the exclusive basis for the court’s ruling. Neither
should the court’s failure to identify or mention specific evidence give rise
to an inference that such evidence has not been considered.’’
2
The trial court noted: ‘‘Given [the plaintiff]’s access to this information,
and the additional evidence offered by the defendants as to EP’s relative
capabilities and products through the years, Akerman’s testimony that he
believed that EP could not perform customizations, and that EP did not
have board games in its inventory is not credible.’’
3
The court explained: ‘‘[The plaintiff] also asserts that EP misappropriated
its pricing strategies and information. [The plaintiff] adduced little if any
evidence from which such a finding might be made. The court does not
herein further address this claim. [The plaintiff] claims EP and Bergmann
misappropriated client lists. [The plaintiff] offers no evidence of such a
claim, with the possible exception of RBC, which was, at best, a potential
future client. Bergmann testified he did not take any lists, and Wells testified
that Bergmann did not provide any lists. This testimony was credited. The
court does not herein further address this claim. [The plaintiff] also asserts
that EP and Bergmann misappropriated, used and disseminated [the plain-
tiff’s] ‘confidential information.’ Aside from the claims addressed above,
[the plaintiff] offers no evidence from which such a finding could be made.
The court does not herein further address this claim. Indeed, [the plaintiff]
continues to make broad, sweeping allegations of wrongdoing by EP even
though the evidence at trial as to such sweeping allegations was utterly
lacking.’’
4
The court further noted: ‘‘The plaintiff’s case relies largely on the testi-
mony of Jonas Akerman, who presented on many issues, as not credible.
The court observed Mr. Akerman’s unwillingness to let go of beliefs or
suspicions which were concededly based upon false premises. He offered
testimony on ‘facts’ only to have those same ‘facts’ to be revealed as his
personal opinion, for which no corroborating evidence was offered. He was
unreasonably intransigent when confronted with contrary evidence. His
testimony was often refuted by other witnesses as well as the documentary
evidence submitted. He was evasive and defensive. At times, his testimony
was simply inexplicable.’’
5
The court denied EP’s claim for costs on the ground that § 35-54 does
not provide for such an award. The court also awarded postjudgment interest
at the rate of 5 percent per annum. Neither of those orders is challenged
on appeal.
6
The plaintiff also sought clarification as to an order requiring the defen-
dants to disclose their expert. That portion of the court’s order is not relevant
to the claims on appeal.
7
The plaintiff also argues for the first time in its reply brief to this court
that the trial court applied the incorrect legal standard to its bad faith
determination. It is well settled that this court does not address claims
raised for the first time in a reply brief.
8
The trial court noted: ‘‘At trial, [the plaintiff] produced, for the first time,
a page from a multipage document which was prepared by [the plaintiff]’s
financial advisors during the 2008 due diligence. It is a one page summary
which encapsulates the advisor’s assessment of EP and the viability of an
acquisition. The one page summary does not include any mention of EP’s
capacity to customize its product to suit the needs of its clients. Akerman
testified that this is a document on which he relied in coming to his belief
that EP had lost its previous ability to customize until after Bergmann was
hired. However, the document itself was part of a bigger document which
included a second page containing a fair amount of information on EP’s
customization capacity. [The] plaintiff’s effort to bolster what the court has
found to be false testimony with an incomplete and misleading document
is troubling. While this court does not go so far as to conclude that Akerman
sought to mislead the court by withholding the second page, it does appear
to this court that he was trying to bolster his own false statement that he
did not believe EP had a high level of customization capability.’’
9
‘‘The plaintiff also sought: a list of current and former clients; a descrip-
tion of which products were sold to which clients; and other clearly protected
trade secret information.’’
10
The plaintiff also claims on appeal that the trial court improperly deter-
mined that it had made a claim of misappropriation of the ‘‘Conductor’’ box
itself. The plaintiff argues that its claim concerning the box concerned only
the identity of the designer of the box. A reading of the plaintiff’s brief to
this court, in which it cites its own posttrial brief to the trial court belies
this argument. As the plaintiff stated in its brief to this court: ‘‘In its posttrial
memorandum, the plaintiff argued that ‘the unique design of [its] Conductor
box, including who makes it and how,’ were trade secrets as defined
under CUTSA.’’
11
The plaintiff also challenged EP’s request for costs and postjudgment
interest. The court did not award costs and although it did award postjudg-
ment interest, the plaintiff has not challenged that award on appeal.
12
The plaintiff claims that the trial court erred in denying its request
for an evidentiary hearing. Our review of the record reveals that this is a
misrepresentation of the proceedings that occurred before the trial court.
Although counsel for the plaintiff suggested a desire to cross-examine coun-
sel for EP as to the reasonableness of the claimed fees, he was unable,
upon inquiry by the court, to articulate a basis for such an examination,
and, instead, challenged the apportionment of the billing between the color-
able and the bad faith claims. Counsel for the plaintiff indicated to the court
that he would fully address that argument in his posthearing brief. The court
indicated to counsel for both parties that if either of them wanted to come
back for an evidentiary hearing following the posthearing briefing, to so
indicate to the court or the court would consider the issue on the papers.
Neither party made such a request. The quoted portions of the hearing that
are cited herein, in addition to the fact that neither party requested an
evidentiary hearing in their posthearing briefs, belie the plaintiff’s claim that
the trial court denied its request for such an opportunity.