Pursuit Partners, LLC v. Reed Smith, LLP

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PURSUIT PARTNERS, LLC, ET AL. v. REED
SMITH, LLP, ET AL.
(AC 41551)
Elgo, Moll and Devlin, Js.
Syllabus
The plaintiffs, M Co., O Co. and P Co., sought to recover damages from the
defendant R Co., a law firm, for breach of contract for its alleged violation
of a confidentiality provision of a settlement agreement executed by
the plaintiffs and A Co., to which R Co. was a signatory. The plaintiffs
and A Co. had executed a confidential settlement agreement to resolve
certain litigation and arbitration proceedings. Thereafter, A Co. brought
a related action, Alpha Beta Capital Partners, L.P. v. Pursuit Investment
Management, LLC, (193 Conn. App. 381) (Alpha Beta), seeking damages
for the alleged failure of the defendants, which included the plaintiffs
in the present case, to provide A Co. with its proportionate share of the
litigation proceeds secured by the settlement agreement. In Alpha Beta,
the trial court found that the delayed payment of the proceeds to A Co.
constituted a material breach of the settlement agreement by certain
defendants in that action, relieving A Co. of its confidentiality obligations
thereunder, and this court held that the court’s finding was not clearly
erroneous. Subsequently, the plaintiffs commenced this action against
R Co., alleging that R Co. breached the confidentiality provision of the
agreement when it communicated with S Co. in connection with litiga-
tion involving the plaintiffs in the present case. The trial court granted
the motion for summary judgment filed by R Co. on defensive collateral
estoppel grounds, concluding that, in Alpha Beta, the defendants were
determined to be the culpable parties, excusing further adherence to
the confidentiality provisions by A Co., and, once the court had ruled
in favor of A Co., it found that R Co.’s obligation pursuant to the confiden-
tiality provisions of the agreement also was excused. Held:
1. The plaintiffs could not prevail on their claim that the trial court improperly
concluded that R Co. was bound by the confidentiality provision of the
settlement agreement only to the extent of its client, A Co., which was
based on their claim that the language of the agreement, coupled with
R Co.’s signature on the agreement, was ambiguous and created a genu-
ine issue of material fact regarding the capacity in which R Co. signed
the agreement: the agreement was a contract that was entered into
among A Co. and the plaintiffs and certain other companies for the
principal purpose of settling certain litigation and arbitration proceed-
ings; it was undisputed that R Co. was not a named party to the agree-
ment, and the language of the agreement repeatedly referred to the
parties and their respective counsel, indicating that R Co.’s obligations
flowed from its role as A Co.’s counsel and, furthermore, R Co. signed
the agreement as counsel for A Co.; viewing the agreement as a whole,
this court concluded that any confidentiality obligation that R Co. under-
took was limited to the extent of the obligation of A Co., its client;
moreover, the trial court properly concluded that a certain affidavit on
which the plaintiffs relied in opposition to R Co.’s motion for summary
judgment did not create a genuine issue of material fact but, rather,
contained conclusory allegations that did not constitute evidence suffi-
cient to establish the existence of disputed material facts.
2. The trial court properly concluded that the finding in Alpha Beta that A
Co. had been released from its confidentiality obligations under the
settlement agreement by virtue of the material breach of the settlement
agreement by certain defendants in that action had collateral estoppel
effect that extended to R Co., as an agent of A Co.: it was undisputed
that A Co. was released from compliance with the confidentiality provi-
sions of the settlement agreement as a result of the prior material breach
of that agreement by the defendants in Alpha Beta, and, in the absence
of an independent contractual obligation on the part of R Co. to comply
with the agreement that was untethered to its role as counsel for A Co.,
this court could conceive of no reason why collateral estoppel principles
should not apply under the limited circumstances of this case; moreover,
the fact that R Co. was not a party to the related action in Alpha Beta
did not militate against its defensive use of collateral estoppel.
Argued October 9, 2019—officially released June 9, 2020
Procedural History
Action to recover damages for breach of contract,
and for other relief, brought to the Superior Court in
the judicial district of Stamford-Norwalk, where Pursuit
Opportunity Fund I, LP, was substituted for the named
plaintiff, and Pursuit Capital Management Fund I, LP,
was added as a plaintiff; thereafter, the action was with-
drawn as to the defendant John Scott et al.; subse-
quently, the court, Hon. Kenneth B. Povodator, judge
trial referee, granted the named defendant’s motion for
summary judgment and rendered judgment thereon,
from which the plaintiffs appealed to this court.
Affirmed.
Sabato P. Fiano, for the appellants (substitute plain-
tiff et al.).
William N. Wright, with whom, on the brief, were
John W. Cannavino and Robert M. Abrahams, pro hac
vice, for the appellee (named defendant).
Opinion
MOLL, J. The plaintiffs Pursuit Investment Manage-
ment, LLC (PIM), Pursuit Opportunity Fund I, LP (POF),
and Pursuit Capital Management Fund I, LP (PCM)
(plaintiffs), appeal from the judgment of the trial court
granting summary judgment in favor of the defendant
Reed Smith, LLP (Reed Smith). POF and PCM are hedge
funds1 to which PIM provided investment management
and advisory services. Reed Smith is a law firm that
represented Alpha Beta Capital Partners, L.P. (Alpha
Beta), an investor in POF and PCM. In the present
action, the plaintiffs claim that Reed Smith violated
a confidentiality provision of a settlement agreement
executed by, among others, Alpha Beta and the plain-
tiffs, to which Reed Smith was a signatory. On appeal,
the plaintiffs argue that the trial court erred by conclud-
ing that (1) the language of the settlement agreement
bound Reed Smith to the confidentiality provision only
to the extent of its principal, Alpha Beta, and (2) a
finding in a related action, Alpha Beta Capital Partners,
L.P. v. Pursuit Investment Management, LLC, 193
Conn. App. 381, 415, 219 A.3d 801 (2019), cert. denied,
334 Conn. 911, 221 A.3d 446 (2020) (Alpha Beta)2—
namely, that the Pursuit Parties’ material breach of the
settlement agreement effectively released Alpha Beta
from its confidentiality obligations thereunder—was
entitled to collateral estoppel effect that extended to
Reed Smith, as an agent of Alpha Beta.3 We affirm the
judgment of the trial court.
In order to put the present appeal in its proper con-
text, we begin with an abbreviated recitation of the
complex factual and procedural history of the related
action, as recently set forth by this court in Alpha Beta.
‘‘In approximately 2007, [Alpha Beta] invested in both
POF and PCM. . . . Also invested in POF and PCM at
that time was the Schneider Group . . . . In 2007 and
2008, all of the [Pursuit Parties] were experiencing sig-
nificant financial difficulties as a result of the volatility
of the global securities market. More specifically, in
2007, POF Master and PCM Master had purchased cer-
tain securities known as collateralized debt obligations
(CDOs) from UBS AG, or its affiliate, for substantial
sums of money. Shortly thereafter, the value of the
CDOs precipitously dropped and, in 2008, Pursuit Part-
ners and PIM commenced a civil action in the Connecti-
cut Superior Court against UBS AG and Moody’s Corpo-
ration (UBS litigation) . . . .
‘‘In 2010, [Alpha Beta] commenced a civil action in
the Supreme Court of the state of New York (2010
New York action) against PIM, [Anthony] Schepis, and
[Frank] Canelas [Jr.]. Therein, [Alpha Beta] alleged that
[those parties] were liable for substantial damages
caused by their ‘tortious conduct involving the manage-
ment of its investments in the hedge funds.’ Contempo-
raneously, [Alpha Beta] filed a separate arbitration pro-
ceeding against POF and PCM, claiming similar losses
for similar tortious conduct. In that proceeding, [Alpha
Beta] alleged, among other things, that one or more of
the [Pursuit Parties] had paid themselves compensation
on the basis of a highly inflated value of the CDOs,
notwithstanding their knowledge that the CDOs had
little or no value.
‘‘On or about April 8, 2011, [Alpha Beta], PIM, Schepis,
Canelas, Pursuit Management, POF, and PCM executed
the ‘Confidential Settlement Agreement and Mutual
Release’ (CSA) to resolve the 2010 New York action
and the arbitration proceeding. The CSA was comprised
of fifteen sections and provided at the outset that ‘the
parties hereby agree as follows . . . .’ In §§ 1, 2, 5, and
6, the CSA provided that [Alpha Beta] was to execute
a dismissal with prejudice as to both the 2010 New York
action and the parallel arbitration proceeding, and that
[Alpha Beta] agreed to a mutual release with PIM,
Schepis, Canelas, Pursuit Management, POF, and PCM
of all claims that were, or could have been, raised
therein.
‘‘As consideration for [Alpha Beta’s] withdrawal and
release, § 3 of the CSA required PIM to pay [Alpha Beta]
a settlement payment of $2.2 million and a redemption
payment of $1,418,033. Pursuant to § 3 (b) (i) and (iii)
of the CSA, the amount of the redemption payment
represented [Alpha Beta’s] pro rata share, approxi-
mately 32.083612 percent, of the net asset value (NAV)
in PCM as of February 28, 2011, minus a holdback4 of
‘$250,000 for the purpose of funding necessary costs
. . . associated with the ongoing [UBS litigation]’ and
minus ‘an additional holdback in the amount [of]
$200,000 to pay legal fees and expenses with respect
to which PCM has an obligation to indemnify.’ Section 3
(b) (ii) of the CSA provided detailed mandates regarding
these holdbacks, including that PIM shall not use any
prior holdbacks in connection with the UBS litigation,
that [Alpha Beta] shall ‘be entitled to periodic updates
on the status of the holdbacks,’ and that [Alpha Beta]
‘will be provided with the opportunity to pay additional
expenses necessary for the UBS [l]itigation’ if the UBS
litigation holdback was insufficient.
‘‘In addition, § 4 of the CSA secured [Alpha Beta’s]
interest in two of PCM’s contingent assets. . . . These
contingent assets include (a) PCM’s proportionate inter-
est in the UBS [l]itigation; and (b) PCM’s interest in a
claim against Lehman Brothers International (Europe)
. . . in the amount of approximately $14,000,000 [(LBIE
claim)]. . . .
‘‘Section 7 of the CSA was a confidentiality provision
in which the parties agreed, among other things, ‘to
maintain in the strictest confidence and not disclose
. . . the contents and terms of [the CSA] . . . [and]
not to use or provide any information relating to any
claim arising out of an investment in the [f]unds to any
other person in connection with the initiation of any
lawsuit, claim, arbitration or action related to or con-
cerning any investment in PCM, POF or any other
investment vehicle managed by PIM.’ Section 12 of the
CSA was a choice of law provision that provided: ‘This
[a]greement shall be construed and interpreted in accor-
dance with the laws of the [s]tate of New York. Any
disputes or litigation arising out of this [a]greement
shall be governed by New York law.’ . . .
‘‘Shortly after the CSA was signed, the LBIE claim
was sold for $9,334,141.55, and, on June 1, 2011, those
funds were received [by PCM Master]. Nevertheless,
no portion of the LBIE claim proceeds were remitted
to [Alpha Beta] until October, 2011, when [Alpha Beta]
received $1,022,022.36.5 Thereafter, a series of commu-
nications occurred between Reed Smith and DLA Piper6
regarding the distribution of the LBIE claim proceeds
to [Alpha Beta].
‘‘On November 9, 2011, DLA Piper sent an explanation
to Reed Smith, stating that [Alpha Beta’s] contingent
interest in the LBIE claim was worth $2,691,641, which
amount represented 32.08 percent of PCM’s 90 percent
interest in the LBIE claim owned by PCM Master, and
that a performance fee also would be subtracted from
that amount. On November 16, 2011, Reed Smith sent
a letter in response, asserting that the [Pursuit Parties]
had provided no documentation to support their valua-
tion of [Alpha Beta’s] proportionate interest in the LBIE
claim, that Reed Smith had been in contact with the
Schneider Group and their related entities, and that the
Schneider Group was supporting [Alpha Beta’s]
demands. On November 26, 2011, DLA Piper sent
another explanation to Reed Smith, stating that [Alpha
Beta’s] interest in the LBIE claim was reduced to
$2,132,559 to account for the performance fee due to
the [Pursuit Parties], and that [Alpha Beta’s] ‘reserve
balance in May, 2011, was adjusted upward in that
amount.’ Neither of DLA Piper’s communications pro-
vided an explanation as to the basis for the performance
fee or the balance reserve, nor the reason for which
the [Pursuit Parties] had remitted less than 48 percent
of the total amount that they finally had calculated
[Alpha Beta’s] interest in the LBIE claim to be worth.
The [Pursuit Parties] did not remit any further amount
of the LBIE claim at that time. . . .
‘‘In March, 2013, after having received no further com-
munication regarding the LBIE claim and concerned
about the status of its holdbacks, [Alpha Beta] com-
menced a civil action in the Supreme Court of the state
of New York against PIM, PCM, POF, and Pursuit Man-
agement (2013 New York action). In that action, [Alpha
Beta] alleged that those defendants had breached the
CSA by failing to pay [Alpha Beta] its pro rata portion
of the LBIE claim proceeds, and by failing to provide
[Alpha Beta] with periodic updates on the status of its
holdbacks and contingent assets. . . .
‘‘Soon after the commencement of the 2013 New York
action, the [Pursuit Parties], or some of them, trans-
ferred to [Alpha Beta] approximately $700,000 in addi-
tional proceeds from the LBIE claim, for a total distribu-
tion of $1,722,022.36, which was approximately 81
percent of the total amount that the [Pursuit Parties]
finally had calculated [Alpha Beta’s] interest in the LBIE
claim to be worth. The transmittal of the $700,000 was
not accompanied by any explanation or accounting as
to how the amount was calculated, the balance of the
LBIE claim proceeds, or the status of the holdbacks.
. . .
‘‘In August and September, 2015, Pursuit Partners
settled the UBS litigation for a total of $36 million;
however, the [Pursuit Parties] have not provided [Alpha
Beta] with any portion of the settlement proceeds.’’
(Footnotes added and omitted.) Alpha Beta, supra, 193
Conn. App. 391–98.
As a result, Alpha Beta brought the related action
against the Pursuit Parties in Connecticut Superior
Court seeking damages for their alleged failure to remit
to Alpha Beta its share of the UBS litigation proceeds.
Id., 398. Alpha Beta’s operative complaint comprised
seven counts: (1) breach of the CSA; (2) breach of
the covenant of good faith and fair dealing; (3) unjust
enrichment; (4) conversion; (5) statutory theft under
General Statutes § 52-564; (6) violation of the Connecti-
cut Unfair Trade Practices Act (CUTPA), General Stat-
utes § 42-110a et seq.; and (7) civil conspiracy. Id. The
Pursuit Parties’ operative two count amended counter-
claim asserted claims for breach of the CSA and fraud.
Id., 399. ‘‘In particular, the [Pursuit Parties] alleged that
[a] November, 2011 letter from Reed Smith to DLA Piper
referencing [Alpha Beta’s] communication with the
Schneider Group, as well as the commencement of the
2013 New York action, had breached certain provisions
of . . . the CSA . . . .’’ Id. Following a bench trial, the
trial court, Genuario, J., rendered judgment in favor
of Alpha Beta on counts one and two of its complaint
as to those defendants that were parties to the CSA,
and on both counts of the Pursuit Parties’ counterclaim.
Id., 400–401. The court rendered judgment in favor of
Pursuit Partners, PCM Master, and POF Master on
counts one and two of the complaint and in favor of
all of the Pursuit Parties on counts three through seven
of the complaint. Id., 401. Particularly relevant for pur-
poses of this appeal, the trial court in the related action
made a finding, which was left undisturbed on appeal,
namely, that the Pursuit Parties’ prior partial delayed
payment of the LBIE claim to Alpha Beta constituted
a material breach of the CSA that, under New York
law, relieved Alpha Beta of its obligations under the
confidentiality provision of the CSA. Id., 413–15, 413
n.20.
On appeal, this court affirmed in part and reversed
in part the judgment.7 Id., 390. We held in relevant part
that the trial court’s finding that the Pursuit Parties’
partial delayed payment of Alpha Beta’s proportionate
share of the LBIE claim relieved Alpha Beta of its obliga-
tions under the CSA’s confidentiality provision was not
clearly erroneous. Id., 413–15. Because the Pursuit Par-
ties’ breach in that regard occurred prior to Alpha Beta’s
communications with the United States Securities and
Exchange Commission (SEC) and the Schneider Group,
this court held that the trial court properly rejected
the Pursuit Parties’ breach of contract counterclaim.
Id., 415.
Against this backdrop, we now turn to the relevant
procedural background of the present action. In Decem-
ber, 2015, Pursuit Partners and PIM commenced the
present action against Reed Smith, John Scott, who is
a member of Reed Smith, and Philip Chapman, a princi-
pal of Alpha Beta. On April 20, 2016, the action was
withdrawn as to Scott and Chapman. On April 25, 2016,
POF was substituted as a plaintiff for Pursuit Partners,
and PCM was added as a plaintiff. On January 18, 2017,
the plaintiffs filed the operative amended complaint
against Reed Smith, alleging one count of breach of
contract. Specifically, the complaint alleged that Reed
Smith breached the confidentiality provision of the CSA
when Reed Smith communicated with, provided infor-
mation to, and otherwise assisted the Schneider Group
in separate litigation involving several of the Pursuit
Parties.
On May 8, 2017, Reed Smith filed a motion for sum-
mary judgment, a supporting memorandum of law, a
supporting affidavit from William N. Wright, Esq., and
appended exhibits. In support of its motion, Reed Smith
argued, inter alia, that the plaintiffs’ claim was barred
on collateral estoppel grounds because the issue of the
plaintiffs’ prior material breach of the CSA, and the
resulting release of Alpha Beta from its confidentiality
obligations, was fully and fairly litigated, actually
decided, and necessary to the judgment in the related
action. Reed Smith contended that the principal basis
for the motion was that any alleged breach of the confi-
dentiality provision of the CSA on its part occurred after
the plaintiffs materially breached the CSA by refusing to
remit the LBIE claim settlement proceeds. Reed Smith
further argued that, because the trial court in the related
action considered the Pursuit Parties’ breach to be
‘‘material,’’ both Alpha Beta and Reed Smith were
excused from performance under the CSA. On August
25, 2017, the plaintiffs filed their memorandum in oppo-
sition to Reed Smith’s motion for summary judgment,
as well as a supporting affidavit from Canelas (Canelas
affidavit) and appended exhibits.8
On March 26, 2018, the trial court, Hon. Kenneth B.
Povodator, judge trial referee, issued a comprehensive
memorandum of decision, granting Reed Smith’s
motion for summary judgment on collateral estoppel
grounds.9 In connection with its collateral estoppel dis-
cussion, the court began with a review of the confidenti-
ality provision, set forth in § 7 of the CSA, quoted pre-
viously in this opinion. Focusing in relevant part on
the language obligating each signatory ‘‘not to use or
provide any information relating to any claim arising
out of an investment in the [f]unds to any other person
in connection with the initiation of any lawsuit, claim,
arbitration or action related to or concerning any invest-
ment in PCM, POF or any other investment vehicle
managed by PIM,’’ the court concluded that such lan-
guage could not reasonably extend to Reed Smith’s
communications with the SEC.10 The court then exam-
ined Reed Smith’s alleged communications with the
Schneider Group. Acknowledging that these communi-
cations ‘‘appear to come within the scope of [§ 7 of the
CSA] . . . or at least [were] sufficiently likely to be so
categorized as to present a material issue of fact, unless
otherwise explained or justified or excused,’’ the court
stated that ‘‘[t]he documents submitted . . . all reflect
conduct of Alpha Beta through [Reed Smith] as its attor-
neys,’’ and that ‘‘there has been no suggestion of any
basis or reason why [Reed Smith], while representing
Alpha Beta, might be communicating with the [Schnei-
der Group] other than in furtherance of the interests of
its client . . . .’’ Rather, Reed Smith’s alleged ‘‘conduct
seem[ed] to have been directed to applying pressure to
the [Pursuit Parties] to provide the amounts claimed
to be due to Alpha Beta.’’ Turning to the findings under-
lying Reed Smith’s collateral estoppel argument, the
court observed that ‘‘[t]he court [in the related action]
was addressing conduct that primarily if not exclusively
was that of [Reed Smith], acting on behalf of Alpha
Beta as the client.’’
The court then rejected the plaintiffs’ argument that
because Reed Smith was a separate signatory to the
CSA, the language of the confidentiality provision bind-
ing ‘‘the [p]arties and their respective counsel’’ sepa-
rately obligated Reed Smith, irrespective of whether
Alpha Beta had been excused from its own confidential-
ity obligation. Noting the ‘‘irrationality’’ of a result in
which an agent, i.e., Reed Smith, could be liable for a
breach of confidentiality when its principal, i.e., Alpha
Beta, had already been excused from the identical obli-
gation with respect to the same communication, the
court concluded that, in the related action, ‘‘[the plain-
tiffs] were determined to be the culpable parties, excus-
ing further adherence to the confidentiality provi-
sions—and the conduct of Reed Smith was the primary
if not the sole focus of the Pursuit [Parties’] claims.
While perhaps not framed in this manner, effectively
the conduct of the [Pursuit Parties] had frustrated the
purpose of the obligation of confidentiality, including
as to Reed Smith once the court had ruled in favor of
Alpha Beta with respect to the claim that it had
breached its confidentiality obligation.’’ This appeal fol-
lowed. Additional facts and procedural history will be
set forth as necessary.
I
The plaintiffs first claim that the language of the CSA
does not support the trial court’s conclusion that Reed
Smith was bound by the CSA’s confidentiality provision
only to the extent of its client, Alpha Beta. Reed Smith
maintains that the trial court properly concluded that
it signed the CSA solely in its representative capacity
as Alpha Beta’s agent, and that the plaintiffs’ position
that Reed Smith was effectively a separate obligor under
§ 7 of the CSA would lead to nonsensical results. We
agree with Reed Smith.
We begin by setting forth the standard of review
and applicable legal principles. ‘‘Practice Book § 17-
49 provides that summary judgment shall be rendered
forthwith if the pleadings, affidavits and any other proof
submitted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. A party moving for sum-
mary judgment is held to a strict standard. . . . To
satisfy his burden the movant must make a showing
that it is quite clear what the truth is, and that excludes
any real doubt as to the existence of any genuine issue
of material fact. . . . As the burden of proof is on the
movant, the evidence must be viewed in the light most
favorable to the opponent. . . . When documents sub-
mitted in support of a motion for summary judgment
fail to establish that there is no genuine issue of material
fact, the nonmoving party has no obligation to submit
documents establishing the existence of such an issue.
. . . Once the moving party has met its burden, how-
ever, the opposing party must present evidence that
demonstrates the existence of some disputed factual
issue. . . . It is not enough, however, for the opposing
party merely to assert the existence of such a disputed
issue. Mere assertions of fact . . . are insufficient to
establish the existence of a material fact and, therefore,
cannot refute evidence properly presented to the court
under Practice Book § [17-45]. . . . Our review of the
trial court’s decision to grant [a] motion for summary
judgment is plenary.’’ (Emphasis omitted; internal quo-
tation marks omitted.) Capasso v. Christmann, 163
Conn. App. 248, 257, 135 A.3d 733 (2016).
‘‘The standard of review for the interpretation of a
contract is well established. Although ordinarily the
question of contract interpretation, being a question of
the parties’ intent, is a question of fact [subject to the
clearly erroneous standard of review] . . . [when]
there is definitive contract language, the determination
of what the parties intended by their . . . commit-
ments is a question of law [over which our review is
plenary]. . . . In light of the fact that the [plaintiffs’]
claim is directed at the court’s interpretation of the
[CSA], as opposed to the court’s factual findings, our
review is plenary and we must decide whether its con-
clusions are legally and logically correct and find sup-
port in the facts that appear in the record.’’ (Citation
omitted; internal quotation marks omitted.) Alpha Beta,
supra, 193 Conn. App. 403.
To determine the capacity in which Reed Smith
signed the CSA, we continue by setting forth the applica-
ble contract interpretation principles under New York
law.11 ‘‘[W]hen parties set down their agreement in a
clear, complete document, their writing should as a rule
be enforced according to its terms . . . . We apply this
rule with even greater force in commercial contracts
negotiated at arm’s length by sophisticated, counseled
businesspeople . . . . In such cases, courts should be
extremely reluctant to interpret an agreement as
impliedly stating something which the parties have
neglected to specifically include . . . . [C]ourts may
not by construction add or excise terms, nor distort
the meaning of those used and thereby make a new
contract for the parties under the guise of interpreting
the writing . . . . We instead concern ourselves with
what the parties intended, but only to the extent that
they evidenced what they intended by what they wrote
. . . . Accordingly, before assessing evidence regard-
ing what was in the parties’ minds at the time of the
agreement, we must first look to the agreement itself.’’
(Citations omitted; internal quotation marks omitted.)
Ashwood Capital, Inc. v. OTG Management, Inc., 99
App. Div. 3d 1, 7, 948 N.Y.S.2d 292 (2012).
‘‘A contract is ambiguous if the language used lacks
a definite and precise meaning, and there is a reasonable
basis for a difference of opinion . . . .’’ (Citations omit-
ted; internal quotation marks omitted.) Agor v. Board
of Education, 115 App. Div. 3d 1047, 1048, 981 N.Y.S.2d
485 (2014). It is well established that, in order to deter-
mine whether an ambiguity exists under the CSA, we
‘‘should examine the entire contract and consider the
relation of the parties and the circumstances under
which it was executed. Particular words should be con-
sidered, not as if isolated from the context, but in the
light of the obligation as a whole and the intention of
the parties as manifested thereby. Form should not
prevail over substance and a sensible meaning of words
should be sought.’’ Atwater & Co. v. Panama Railroad
Co., 246 N.Y. 519, 524, 159 N.E. 418 (1927).
The following additional principles also apply to our
resolution of this claim. ‘‘Agency is a legal relationship
between a principal and an agent. It is a fiduciary rela-
tionship which results from the manifestation of con-
sent of one person to allow another to act on his or
her behalf and subject to his or her control, and consent
by the other so to act. The agent is a party who acts
on behalf of the principal with the latter’s express,
implied, or apparent authority . . . .’’ (Citations omit-
ted; internal quotation marks omitted.) Faith Assembly
v. Titledge of New York Abstract, LLC, 106 App. Div.
3d 47, 58, 961 N.Y.S.2d 542 (2013). It is axiomatic that
an attorney is an agent for his or her client. See Aetna
Casualty & Surety Co. v. Hambly Construction Co.,
65 App. Div. 2d 612, 613, 409 N.Y.S.2d 552 (1978); see
also New York Rules of Professional Conduct 1.2 (a).
When a party materially breaches a contract, the non-
breaching party’s performance thereunder is excused.
Grace v. Nappa, 46 N.Y.2d 560, 567, 389 N.E.2d 107,
415 N.Y.S.2d 793 (1979). A breach is material if it ‘‘go[es]
to the root of the agreement between the parties.’’
(Internal quotation marks omitted.) Frank Felix Associ-
ates, Ltd. v. Austin Drugs, Inc., 111 F.3d 284, 289 (2d
Cir. 1997) (applying New York law). ‘‘A party’s obliga-
tion to perform under a contract is only excused where
the other party’s breach of the contract is so substantial
that it defeats the object of the parties in making the
contract.’’ Id.Guided by these principles, we turn to the language
of the CSA. We first note that the definitions of the
terms ‘‘[p]arty’’ and ‘‘[p]arties’’ in the CSA do not include
Reed Smith. However, the confidentiality provision of
the CSA, set forth in § 7 thereof, provides in relevant
part: ‘‘The [p]arties and their respective counsel agree
to maintain in the strictest confidence and not disclose
. . . the contents and terms of this [a]greement, includ-
ing but not limited to the [c]onsideration for this [a]gree-
ment. For the avoidance of doubt, this confidentiality
provision expressly prohibits, among other things, the
issuance of any press release regarding the [a]greement,
and the . . . publication of the [a]greement or the
terms of the [a]greement. . . . To further ensure the
confidentiality of this [a]greement, the [p]arties and
their respective counsel agree not to use or provide
any information relating to any claim arising out of
an investment in the [f]unds to any other person in
connection with the initiation of any lawsuit, claim,
arbitration or action related to or concerning any invest-
ment in PCM, POF or any other investment vehicle
managed by PIM.’’ (Emphasis added.) Although Reed
Smith was not a ‘‘[p]arty’’ to the CSA, the CSA’s signa-
ture block includes Reed Smith as a signatory with
an accompanying parenthetical that reads ‘‘counsel for
Alpha Beta.’’
The plaintiffs argue that the language in § 7 directed
to ‘‘the [p]arties and their respective counsel,’’ coupled
with Reed Smith’s signature to the CSA, is ambiguous
and creates, at a minimum, a genuine issue of material
fact regarding the capacity in which Reed Smith signed
the CSA. In support of their position, they rely on the
principle that a contract is unambiguous only ‘‘if the
language it uses has a definite and precise meaning,
unattended by danger of misconception in the purport
of the [agreement] itself, and concerning which there
is no reasonable basis for a difference of opinion
. . . .’’ (Citation omitted; internal quotation marks
omitted.) Greenfield v. Philles Records, Inc., 98 N.Y.2d
562, 569, 780 N.E.2d 166, 750 N.Y.S.2d 565 (2002). The
plaintiffs also contend that the Canelas affidavit raised
a genuine issue of material fact, specifically, that they
would not have entered into the CSA unless Reed Smith
agreed to its terms in an individual capacity. Reed Smith
argues in contrast that the language of the CSA, includ-
ing the signature block, demonstrates that it signed the
CSA as Alpha Beta’s counsel, and that requiring its
compliance with the confidentiality provision after
Alpha Beta was no longer bound thereby as a result of
the plaintiffs’ prior material breach would be a nonsen-
sical, overly formalistic interpretation of the contract.
We agree with Reed Smith.
The CSA is a contract that was entered into among
Alpha Beta and PIM, Pursuit Capital Management, LLC,
POF, PCM, Schepis, and Canelas for the principal pur-
pose of settling the 2010 New York action and arbitra-
tion proceedings. It is undisputed that Reed Smith was
not a named party to the CSA. Notably, § 7 of the CSA,
the only section directed to the parties’ counsel, repeat-
edly refers to the ‘‘[p]arties and their respective coun-
sel,’’ indicating that Reed Smith’s obligations thereun-
der flowed from its role as Alpha Beta’s counsel.
Moreover, Reed Smith signed the CSA as ‘‘counsel for
Alpha Beta.’’ Cf. Pepsi-Cola Buffalo Bottling Corp. v.
Wehrle Drive Supermarkets, Inc., 123 App. Div. 2d 515,
515, 507 N.Y.S.2d 107 (1986) (agent’s signature failed
to show that he signed guarantee in representative
capacity); see also Georgia Malone & Co. v. Rieder,
86 App. Div. 3d 406, 408–409, 926 N.Y.S.2d 494 (2011)
(‘‘agents of a company are not personally liable on a
contract if they do not purport to bind themselves indi-
vidually’’), aff’d, 19 N.Y.3d 511, 973 N.E.2d 743, 950
N.Y.S.2d 333 (2012). Viewing the CSA as a whole, we
conclude that any confidentiality obligation Reed Smith
undertook pursuant to § 7 was limited to the extent of
the confidentiality obligation of its client, Alpha Beta.
Any other reading of the CSA would strain the objec-
tive intentions of the contracting parties; see Mencher
v. Weiss, 306 N.Y. 1, 7, 114 N.E.2d 177 (1953); and would
lead to nonsensical results. See Reiss v. Financial Per-
formance Corp., 279 App. Div. 2d 13, 19, 715 N.Y.S.2d
29 (2000) (‘‘Surely a court is not required to disregard
common sense and slavishly bow to the written word
where to do so would plainly ignore the true intentions
of the parties in the making of a contract. Such formalis-
tic literalism serves no function but to contravene the
essence of proper contract interpretation, which, of
course, is to enforce a contract in accordance with the
true expectations of the parties in light of the circum-
stances existing at the time of the formation of the
contract . . . .’’ (Citations omitted.)), aff’d as modified,
97 N.Y.2d 195, 764 N.E.2d 958 (2001). For example,
taken to its logical conclusion, the plaintiffs’ interpreta-
tion would have permitted Alpha Beta to communicate
with the Schneider Group through anyone other than
Reed Smith. Such a result would defy common sense
and is incongruent with established contract and agency
principles. See Givati v. Air Techniques, Inc., 104 App.
Div. 3d 644, 645, 960 N.Y.S.2d 196 (2013) (in interpreting
contract, sensible meaning of words should be sought);
see also Georgia Malone & Co. v. Rieder, supra, 86 App.
Div. 3d 408–409. Rather, we construe § 7 of the CSA as
the practical means to prevent a contracting party’s
circumvention of the confidentiality provision by com-
municating with third parties through their counsel in
an attempt to avoid liability. The plaintiffs’ contrary
interpretation fails to provide a reasonable basis to
conclude that Reed Smith had an ongoing contractual
duty to comply with § 7 once Alpha Beta was excused
from performance. Accordingly, the plaintiffs’ reliance
on the principle that an ambiguity exists when there is
a reasonable basis for a difference in opinion as to the
contract’s meaning; see Greenfield v. Phillies Records,
Inc., supra, 98 N.Y.2d 569; is misplaced.
Furthermore, we, like the trial court, conclude that
the Canelas affidavit on which the plaintiffs rely did
nothing to create a genuine issue of material fact. The
trial court described the Canelas affidavit as follows:
‘‘The affidavit of . . . Canelas reads more like a supple-
mental brief than an affidavit. . . . [M]ost of the recita-
tions seem to have been taken from a brief or draft
brief, minimally modified to appear to be assertions by
a speaker (the affiant), going so far as to even have
section headings such as ‘The issues before Judge Gen-
uario and the New York [c]ourts are not the issues
before this [c]ourt’ . . . .’’ Among the examples noted
by the court was the fact that the Canelas affidavit
contained ‘‘a conclusion—complete with a heading in
all capital letters and in boldface and underlined—read-
ing: ‘Based on the foregoing and all of the prior proceed-
ings had herein, Pursuit respectfully requests that the
[c]ourt enter summary judgment in its favor on liability
. . . .’’ The court further noted that the following sen-
tence in the affidavit ‘‘epitomize[d] the extreme depar-
ture from anything approaching proper content in an
affidavit’’: ‘‘ ‘In my view, Reed Smith’s reliance on the
Appellate Division Decision as barring the instant action
on res judicata grounds is wholly without merit.’ ’’ The
trial court concluded, and we agree, that ‘‘most of the
twenty-three pages of the affidavit are more in the
nature of arguments than competent factual statements,
making it especially difficult to discern evidence that
the court should consider (can properly consider).’’
What remain in the Canelas affidavit are conclusory
allegations that ‘‘do not constitute evidence sufficient
to establish the existence of disputed material facts.’’
Gupta v. New Britain General Hospital, 239 Conn. 574,
583, 687 A.2d 111 (1996). The trial court’s rebuke of
the Canelas affidavit, and its conclusion that it lacked
evidentiary value, were well founded. In sum, on the
basis of our careful review of the Canelas affidavit, we
agree with the trial court that, upon the proper burden
shifting, the affidavit failed to demonstrate that there
existed a genuine issue of material fact.
For the foregoing reasons, the plaintiffs’ first claim
fails.
II
The plaintiffs next claim that the finding in the related
action—that their prior material breach of the CSA
excused Alpha Beta from compliance with § 7 of the
CSA (a finding that was left undisturbed in Alpha
Beta)—does not extend to Reed Smith and is not enti-
tled to collateral estoppel effect under the circum-
stances of the present case. We disagree.
The applicability of collateral estoppel to a particular
set of facts presents a question of law over which this
court exercises plenary review. Rodriguez v. Saucier,
108 Conn. App. 599, 601, 948 A.2d 1067, cert. denied,
289 Conn. 917, 957 A.2d 879 (2008). ‘‘The common-
law doctrine of collateral estoppel, or issue preclusion,
embodies a judicial policy in favor of judicial economy,
the stability of former judgments and finality. . . . Col-
lateral estoppel . . . prohibits the relitigation of an
issue when that issue was actually litigated and neces-
sarily determined in a prior action between the same
parties upon a different claim. . . . For an issue to be
subject to collateral estoppel, it must have been fully
and fairly litigated in the first action. It also must have
been actually decided and the decision must have been
necessary to the judgment.’’ (Internal quotation marks
omitted.) Birnie v. Electric Boat Corp., 288 Conn. 392,
405, 953 A.2d 28 (2008). ‘‘If an issue has been deter-
mined, but the judgment is not dependent upon the
determination of the issue, the parties may relitigate
the issue in a subsequent action. . . . For collateral
estoppel to apply, the issue concerning which relitiga-
tion is sought to be estopped must be identical to the
issue decided in the prior proceeding. . . .
‘‘An issue is actually litigated if it is properly raised
in the pleadings or otherwise, submitted for determina-
tion, and in fact determined. An issue is necessarily
determined if, in the absence of a determination of
the issue, the judgment could not have been validly
rendered.’’ (Citations omitted; internal quotation marks
omitted.) State v. Joyner, 255 Conn. 477, 490, 774 A.2d
927 (2001).
At issue in the present case is Reed Smith’s defensive
use of the collateral estoppel doctrine, which ‘‘occurs
when a defendant in a second action seeks to prevent
a plaintiff from relitigating an issue that the plaintiff
had previously litigated in another action against the
same defendant or a different party. . . . It is well
established that privity is not required in the context
of the defensive use of collateral estoppel . . . .’’ (Cita-
tion omitted; emphasis added; internal quotation marks
omitted.) Marques v. Allstate Ins. Co., 140 Conn. App.
335, 340–41, 58 A.3d 393 (2013).
As a threshold matter, it is undisputed that the issues
of whether the Pursuit Parties materially breached the
CSA and whether such breach released Alpha Beta from
compliance with § 7 of the CSA were actually litigated
and necessarily determined in the related action. See
Alpha Beta, supra, 193 Conn. App. 415 (‘‘the evidence
that, prior to any of the contested communications,
[Alpha Beta] received less than one half of what the
[Pursuit Parties] had calculated was [Alpha Beta’s] enti-
tlement, more than four months after the funds had
been received by PCM without sufficient justification,
supports the court’s finding that the [Pursuit Parties]
had materially breached the CSA’’); id., 413–15 (con-
cluding that evidence supported trial court’s finding
that Pursuit Parties had materially breached their obli-
gations under CSA in October and November, 2011,
prior to any of Alpha Beta’s communications with SEC
or Schneider Group, and that, as result, under New
York law, Alpha Beta was discharged from its obliga-
tions under § 7 of CSA). It is also undisputed that the
specific communications underlying the plaintiffs’
breach of contract claim against Reed Smith in the
present action are the identical communications that
were at issue in the related action, and that Reed Smith
engaged in such communications solely on behalf of
its client and principal, Alpha Beta, after the Pursuit
Parties materially breached the CSA.12 In the absence
of an independent contractual obligation on the part
of Reed Smith to comply with § 7 of the CSA that is
untethered to its role and conduct as counsel for Alpha
Beta, we can conceive of no reason why collateral
estoppel principles—and the specific policy of judicial
economy they serve—should not apply under the lim-
ited circumstances of this case.13 Thus, we conclude that
the trial court properly concluded that the plaintiffs’
breach of contract claim against Reed Smith was pre-
cluded on the basis of defensive collateral estoppel.
The plaintiffs argue that the related action did not
resolve an ‘‘identical issue’’ in the present action, that
is, whether Reed Smith was excused from compliance
under § 7 of the CSA. The plaintiffs’ argument ignores
the contract and agency principles discussed in part I
of this opinion. Moreover, as stated previously, the fact
that Reed Smith was not a party to the related action
does not militate against the defensive use of collateral
estoppel.14 See Marques v. Allstate Ins. Co., supra, 140
Conn. App. 340–41; Gionfriddo v. Gartenhaus Cafe, 15
Conn. App. 392, 404, 546 A.2d 284 (1988), aff’d on other
grounds, 211 Conn. 67, 557 A.2d 540 (1989).
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘A hedge fund is [a] specialized investment group—[usually] organized
as a limited partnership or offshore investment company—that offers the
possibility of high returns through risky techniques such as selling short or
buying derivatives.’’ (Internal quotation marks omitted.) Alpha Beta Capital
Partners, L.P. v. Pursuit Investment Management, LLC, 193 Conn. App.
381, 390 n.3, 219 A.3d 801 (2019), cert. denied, 334 Conn. 911, 221 A.3d
446 (2020).
2
The defendants in the related action included POF, Pursuit Opportunity
Fund I Master Ltd. (POF Master), PCM, Pursuit Capital Master (Cayman)
Ltd. (PCM Master), Pursuit Partners, LLC (Pursuit Partners), PIM, Northeast
Capital Management, LLC, Anthony Schepis, and Frank Canelas, Jr. Canelas
and Schepis are individuals ‘‘who, together, formed, operated, and controlled
all of the other defendants [in the related action].’’ Alpha Beta, supra, 193
Conn. App. 390–91. Pursuit Partners was not a party to the appeal in Alpha
Beta; id., 388–89; and, although Pursuit Partners was the named plaintiff in
the present action, it has been substituted as a plaintiff by POF. For ease
of reference, we refer to the defendants in the related action, which included
the plaintiffs in the present action, as the ‘‘Pursuit Parties.’’
3
In its appellate brief, Reed Smith offers an alternative basis for affirming
the judgment, namely, that the trial court’s finding in the related action that
the Pursuit Parties suffered no damages was entitled to collateral estoppel
effect. Because we reject both of the plaintiffs’ claims, we need not reach
this alternative argument. See Capen v. General Dynamics Corp./Electric
Boat Division, 38 Conn. App. 73, 80–81 n.7, 659 A.2d 735 (1995).
4
A holdback is ‘‘an amount withheld from the full payment of a contract
pending the other party’s completion of some obligation . . . .’’ (Internal
quotation marks omitted.) Alpha Beta, supra, 193 Conn. App. 392 n.7.
5
There was an apparent dispute in the related action over the amount
Alpha Beta was owed from the LBIE claim proceeds pursuant to the CSA.
See Alpha Beta, supra, 193 Conn. App. 414–15. However, even assuming
that the Pursuit Parties’ calculation as to that amount was correct, the figure
provided to Alpha Beta in October, 2011, was less than one half of the
calculated entitlement. Id., 415.
6
‘‘During all relevant times, [Alpha Beta] was represented by . . . Reed
Smith, and the [Pursuit Parties] were represented by the law firm DLA
Piper.’’ Alpha Beta, supra, 193 Conn. App. 391.
7
This court reversed the trial court’s determination that Schepis and
Canelas were, in part, liable in their individual capacities for damages to
Alpha Beta with respect to their purported failure to provide UBS litigation
settlement proceeds. Alpha Beta, supra, 193 Conn. App. 436–37.
8
The plaintiffs also simultaneously filed a cross motion for summary
judgment as to liability only, which the trial court subsequently determined
had been abandoned.
9
On March 27, 2018, the trial court issued a supplemental order clarifying
one aspect of its March 26, 2018 decision and holding that the doctrine of
res judicata applied with respect to Reed Smith’s November, 2011 letter to
DLA Piper. In their principal appellate brief, the plaintiffs do not challenge
the court’s decision on the basis of res judicata. We therefore do not review
the court’s supplemental order.
10
The plaintiffs do not challenge on appeal this particular conclusion.
11
The parties agree that New York substantive law governs this contractual
claim because of the choice of law provision in § 12 of the CSA, which
provides in relevant part: ‘‘This [a]greement shall be construed and interpre-
ted in accordance with the laws of the [s]tate of New York.’’
12
During oral argument before this court, the plaintiffs’ counsel acknowl-
edged that Reed Smith engaged in all of the alleged conduct on behalf of
Alpha Beta.
13
Neither party points to a Connecticut case in direct support of its respec-
tive position, nor have we found one. Nevertheless, we note that several
jurisdictions have applied defensive collateral estoppel to bar subsequent
litigation in the specific context of a principal-agent relationship. See, e.g.,
Griffin v. Sirva, Inc., 291 F. Supp. 3d 245, 247, 252–54 (E.D.N.Y. 2018)
(concluding that plaintiff employees were collaterally estopped from reliti-
gating, as against defendant, whether defendant’s subsidiary violated state
human rights law when earlier litigation resulted in jury verdict in favor of
subsidiary); Cook v. Detroit, 125 Mich. App. 724, 734, 337 N.W.2d 277 (1983)
(applying collateral estoppel to bar negligence action against city when
earlier action against city police officers absolved them of negligence).
14
‘‘Historically, the doctrine of collateral estoppel, or issue preclusion,
required mutuality of the parties. The general rule of issue preclusion is
that [w]hen an issue of fact or law is actually litigated and determined by
a valid and final judgment, and the determination is essential to the judgment,
the determination is conclusive in a subsequent action between the parties,
whether on the same or a different claim. . . . Under the mutuality rule,
[p]arties who were not actually adverse to one another in a prior proceeding
could not assert collateral estoppel against one another in a subsequent
action. . . .
‘‘The mutuality requirement has, however, been widely abandoned as an
ironclad rule. We have held that the [mutuality] rule will no longer operate
automatically to bar the use of collateral estoppel . . . .’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.) Torres v. Waterbury,
249 Conn. 110, 135–36, 733 A.2d 817 (1999).