Feldman v. Comprehensive Information Services
| Decision Date | 06 October 2003 |
| Docket Number | X01CV010170630S. |
| Court | Connecticut Superior Court |
| Parties | Robert Feldman v. Comprehensive Information Services, Inc. |
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
In April of 1999, the plaintiff's employer (Advest) contacted the defendant (hereafter CIS) to perform a background check on the plaintiff. Specifically, Advest requested verification of the plaintiff's employment history, interviews with persons listed as references on the plaintiff's employment application, verification of the plaintiff's educational background, and a criminal records search. Advest had provided CIS an authorization signed by the plaintiff; that authorization permitted Advest and its agents to investigate the truthfulness of the information the plaintiff had provided in his employment application to Advest. CIS subcontracted with CrimeSearch, Inc. to conduct the criminal background search for an agreed fee; it instructed CrimeSearch to search the criminal records in Hartford County for a period of seven (7) years and provided CrimeSearch the plaintiff's name, date of birth, last known address, and Social Security number. CrimeSearch performed the record search and provided the defendant a report which accurately listed criminal charges brought against the plaintiff and the resolution and/or status of those charges. However, it mischaracterized some of those charges — including one in which the plaintiff had pled guilty — as felonies in a report to Advest. Shortly after Advest received the report, it terminated the plaintiff.
The plaintiff alleges he lost his job because of this false report. The Amended Complaint of August 7, 2002, asserts four (4) causes of action more specifically to be described. The defendant has filed a motion for summary judgment as to all counts and the plaintiff has objected to the motion in its entirety. Memoranda of law were submitted and oral argument was heard on September 24, 2003.
Summary judgment shall be rendered if the pleadings, affidavits and any other proof submitted show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. P.B. § 17-49. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party. Miller v. United Technologies Corp., 233 Conn. 732, 745, 660 A.2d 810 (1995).
The moving party has the burden of showing the absence of any genuine issue of material fact and therefore his/her entitlement to judgment as a matter of law. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). The non-moving party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Appleton v. Board of Directors, 254 Conn. 205, 209, 757 A.2d 1059 (2000). It must be demonstrated by counter-affidavits and concrete evidence. Pion v. Southern New England Telephone, 44 Conn.App. 657, 663, 691 A.2d 1107 (1997). "A material fact . . . [is] a fact which will make a difference in the result of the case." H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560, 783 A.2d 993 (2001). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Cummings & Lockwood v. Gray, 26 Conn.App. 293, 296-97, 600 A.2d 1040 (1991).
Count One sets out a claim for reckless common-law libel. The plaintiff asserts the CIS report which stated he "had been convicted . . . of a felony or felonies" (Para 6) was false and defamatory (Para 7), constituted an unprivileged communication, and that CIS "either knew that the statements in the CIS report were false or acted in reckless disregard of their truth or falsity" (Para 10). The defendant argues it had a qualified privilege pursuant to 15 U.S.C. 1681h(e)—the federal Fair Credit Reporting Act (FCRA) and that the plaintiff must plead and prove malice or a willful intent to injure which he cannot do because the affidavit of the President and CEO of CIS ("Capwell") stated CIS relied on the accuracy of the information from CrimeSearch , was not aware of the falsity of some of that information , intended no misrepresentation regarding the classification of the plaintiff's criminal charges (Para 24 of Exhibit A), and did not intend to adversely affect the plaintiff's employment status . The plaintiff's argument is essentially that there is a genuine issue of material fact whether there was an agency relationship between CIS and CrimeSearch and, if the jury decides such relationship existed, CIS is liable for the inaccurate information which injured his client's reputation and cost him his job.
That argument, however, misses its mark. Even were it so that CrimeSearch was an agent of CIS, the plaintiff has presented no evidence—by affidavit or otherwise—that CrimeSearch acted in reckless disregard of the truth. "It is not enough merely to assert the existence of a disputed issue . . . [instead] the genuine issue aspect requires the party to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred." Wadia Enterprises, Inc. v. Hirschfeld, 27 Conn.App. 162, 168-69, 604 A.2d 1339 (1992), citing Na-Mor, Inc. v. Roballey, 24 Conn.App. 215, 217, 587 A.2d 427 (1991). The plaintiff has failed to offer any evidence that either CrimeSearch or CIS acted with reckless disregard of the truth concerning the alleged felony charges and the motion is granted as to Count One.
The Second Count of the complaint alleges a violation of the Connecticut Unfair Trade Practices Act (CUTPA). The plaintiff asserts CIS "either knew that the statements" in its report "were false" or "acted in reckless disregard of the truth of falsity" of the statements or "acted negligently in failing to ascertain [their] truth or falsity." (Para 10.) It further alleges the defendant was "engaged in the conduct of trade or commerce" as alleged in C.G.S. § 42-110a (Para 12), that the obtaining of the plaintiff's criminal history was illegal and in violation of C.G.S. §§ 54-142g to 54-142q (Para 14), and that the acts, omissions, and conduct of CIS were "unfair and deceptive acts and practices in the conduct of trade or commerce" in violation of § 42-110 (Para 15). The defendant has denied a violation both of CUTPA and §§ 54-142g to 54-142q.
C.G.S. § 42-110b(a) provides, "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." CUTPA is a remedial statute and must be liberally construed in favor of those whom the legislature intended to benefit. Willow Springs Condo. Ass'n v. Seventh BRT Dev. Corp.., 245 Conn. 1, 42, 717 A.2d 77 (1998); C.G.S. § 42-110b(d). One need not prove an intent to deceive in order to prevail under CUTPA. Normand v. Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 523, 646 A.2d 1289 (1994). Under § 42-110b(b), in construing what is meant by "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce," we are guided by interpretations given by federal courts and the Federal Trade Commission to applicable sections of the Federal Trade Commission Act. Our courts have adopted the Federal Trade Commission's test—known as the "cigarette rule"—for determining whether an act or practice constitutes a CUTPA violation. Thus, whether an act or practice is unfair requires consideration of whether that practice: a) without necessarily having been previously considered unlawful, offends public policy as established by statute, the common law, or otherwise; b) is immoral, unethical, oppressive, or unscrupulous; or c) causes substantial injury to consumers. 230 Conn., at 522. All three criteria need not be satisfied to support a finding of unfairness. Normand, supra, at 522.
"A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." Id.
C.G.S. §§ 54-142g through 54-142q are directed to the "Security and Privacy of Criminal Records"—specifically, the compilation and release of various kinds of arrest and conviction records by law enforcement agencies. § 54-142k(b) provides conviction information is available to the public for any reason. "Conviction information" means "criminal history . . . which discloses that a person has pleaded guilty or nolo contendere to, or was convicted of any criminal offense, and the terms of the sentence." § 54-142g(c). "Criminal history record information" means "court records and information compiled by criminal justice agencies for purposes of identifying criminal offenders and of maintaining as to each offender notations of arrests, releases, detentions, indictments, informations, or other formal criminal charges or any events and outcomes arising from those arrests . . ." Section 54-142g(a). Information regarding the plaintiff's participation in the CADAC Program, an alternative program for the treatment of substance abusers, clearly goes beyond "conviction information" which is available to the public for any purpose under § 54-142k(b). It is instead "criminal history record information." Under § 54-142k(e), any person who obtains criminal history record information other than conviction information by falsely representing to be the subject of the information is guilty of a Class D felony. At oral argument, the defendant conceded the identity of the person from CrimeSearch who obtained the information is not known; it cannot therefore be said how...
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