List Services Corp. v. LLC (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 118

FACTUAL AND PROCEDURAL BACKGROUND

On June 4, 2008, the plaintiff, List Services Corporation, commenced this action by service of process against the defendant, Ampere Media, LLC. In its two-count complaint seeking breach of contract and unjust enrichment, the plaintiff alleges the following facts.   On March 19, 2006, the plaintiff, a Connecticut corporation with a place of business in Bethel, entered into a “lead generation agreement” with the defendant, a limited liability company located in Northbrook, Illinois.   Pursuant to this contract, the defendant agreed to provide qualified leads for the plaintiff's client, Financialaid.com, in exchange for a fee paid by the plaintiff.   The purpose of this lead data was to provide Financialaid.com with the names of qualified individuals to solicit for student loan consolidations.   In its complaint, the plaintiff alleges that “the lead data was required to include certain information for each individual including, but not limited to, first name, last name, address, city, state, e-mail address, phone number, social security number, and the correct ‘yes' or ‘no’ answers to several questions including the answers ‘no’ to ‘Are any of your student loans in default’ and ‘Are you a full time student’ and ‘yes' to ‘Do you have $7,500 or more in student loan debt.’  “ Pursuant to this agreement, the defendant provided lead data to Financialaid.com and the plaintiff paid the defendant for this lead data.

The parties subsequently entered into another agreement on December 5, 2006.   In this contract, the defendant represented that it would “make best efforts to generate qualified leads” and that “[e]ach lead is carefully reviewed by our exclusive lead generation technology.”   In March 2007, the defendant provided lead data directly to Financialaid.com. The defendant then submitted an invoice dated March 31, 2007 to the plaintiff in the amount of $26,054, which the plaintiff paid in full.   On April 7, 2007, the defendant provided additional lead data to Financialaid.com, which was reflected in an invoice submitted to the plaintiff totaling $30,234.   The plaintiff also paid this invoice in full.   Additionally, the plaintiff submitted the March 31, 2007 and April 30, 2007 invoices to Financialaid.com. Upon receipt of these invoices, Financialaid.com informed the plaintiff that almost none of the lead data provided by the defendant resulted in qualified leads.   Specifically, Financialaid.com indicated that:  (1) the leads included incorrect social security numbers;  (2) that ‘yes' answers were given to questions that required a ‘no’ answer and (3) that there were charges for duplicate leads.   As a result of these incorrect leads, the plaintiff demanded that the defendant reimburse the plaintiff, which it has failed to do.   The plaintiff alleges that it was wrongful for the defendant to withhold reimbursement and that the defendant has been unjustly benefitted by the payment that it received for inaccurate and duplicative leads.

On March 31, 2010, the defendant filed a motion for summary judgment, as well as a memorandum of law in support of its motion.   The defendant's motion attaches a copy of the December 5, 2006 contract between the parties and a document titled “Advertising Standard Terms and Conditions” dated July 16, 2008.   On April 28, 2010, the plaintiff filed a memorandum of law in opposition, which attaches:  (1) the sworn affidavit of Malcolm W. McCluskey, who is the plaintiff's president;  (2) an agreement between the plaintiff and Financialaid.com dated January 12, 2006;  (3) a copy of the March 15, 2006 contract between the parties;  (4) an offer preview created by the defendant setting forth the required lead data dated March 15, 2006;  (5) a copy of the December 5, 2006 contract between the parties;  (6) an e-mail from J.D. Etmore to Tara Wexler dated January 11, 2007;  (7) an email from J.D. Etmore to Tara Wexler dated January 23, 2007;  (8) an email from Tara Wexler to Andrew Thomashow dated January 29, 2007 and (9) invoices from the defendant dated March 31, 2007 and April 30, 2007.

On May 20, 2010, the defendant filed:  (1) an unnotarized “declaration” from Phillip Schechter, who is the defendant's president and chief executive officer and (2) an unnotarized “declaration” from Andrew Thomashow, who is the defendant's director of media sales.   The defendant further filed a reply memorandum on May 24, 2010.   In response, the plaintiff filed its own reply memorandum on June 2, 2010, which attaches:  (1) a copy of a print out from the defendant's website dated March 30, 2010 and (2) an additional sworn affidavit from McCluskey.   Finally, on June 8, 2010, the defendant filed notarized versions of the affidavits that it had previously submitted from Schechter and Thomashow.

DISCUSSION

“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.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”  (Citations omitted;  internal quotation marks omitted.)   Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).   The burden is on the moving party to demonstrate an absence of any triable issue of material fact and “[t]o 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 ․ Once the moving party has met its burden, however, 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].”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).  “As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits.”  Heyman Associates No. I v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995).

Before addressing the substantive legal issues raised in this motion, the court first must determine which evidence submitted by the parties that it can consider.   The plaintiff has raised an objection to the admissibility of the Schechter and Thomashow affidavits offered by the defendant.   Specifically, the plaintiff argues that these affidavits are inadmissible because they are not properly sworn documents, inadmissible hearsay and were untimely filed.

Under Connecticut law, “[o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment, and the applicable provisions of our rules of practice contemplate that supporting [or opposing] documents ․ be made under oath or be otherwise reliable.”  (Internal quotation marks omitted.)  Rockwell v. Quintner, 96 Conn.App. 221, 233 n.10, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).  “An affidavit is defined as [a] voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths ․ [U]nsworn statements ․ do not fit this definition ․ [When] witness statements [are] not sworn to before an officer authorized to administer oaths, they [do] not meet the requirements of an affidavit ․” (Citation omitted;  internal quotation marks omitted.)  Krassner v. Ansonia, 100 Conn.App. 203, 209-10, 917 A.2d 70 (2007).   Unsworn statements made in a document purporting to be an affidavit cannot be relied on in support of a motion for summary judgment.  Fogarty v. Rashaw, 193 Conn. 442, 444, 476 A.2d 582 (1984).

The Schechter and Thomashow affidavits filed with the court on May 20, 2010, are not notarized or signed by a commissioner of the Superior Court.   Although these documents do indicate that the statements contained therein were made under penalty of perjury pursuant to 28 U.S.C. § 1746,¹ which allows for unsworn declarations under federal law, there is no indication that this provision has been adopted in Connecticut.   In fact, Connecticut courts have consistently stated that in order for a document to be considered a valid affidavit, it must be sworn before an officer authorized to administer oaths.   Krassner v. Ansonia, supra, 100 Conn.App. 209-10.   Accordingly, the court cannot consider the Schechter and Thomashow affidavits that were filed on May 20, 2010.

In an effort to correct this defect, the defendant filed notarized versions of the Schechter and Thomashow affidavits on June 8, 2010, which was one day after the short calendar hearing on this matter.   Although this action on the part of the defendant may have produced legally sufficient affidavits had they been part of the original motion for summary judgment, these versions of the affidavits should not be considered by the court because they are untimely filed.  “Our rules of practice require affidavits in support of or in opposition to summary judgment motions to be filed before the motion is to be heard;  see Practice Book § 17-45;  and where an affidavit is not timely filed under the rules, the trial court does not abuse its discretion in refusing to consider it ․” (Internal quotation marks omitted.)  Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 656, 905 A.2d 1256 (2006).   For this reason, the court also will not consider the notarized versions of the Schechter and Thomashow affidavits.   Therefore, the only remaining evidence offered in support of the defendant's motion for summary judgment is a copy of the December 5, 2006 contract between the parties and the “Advertising Standard Terms and Conditions” document dated July 16, 2008.²

I

COUNT ONE:  BREACH OF CONTRACT

The defendant first moves for summary judgment on count one, breach of contract.   In its memorandum of law, the defendant argues that there is no genuine issue of material fact that the defendant did not breach the terms of the contracts.   Specifically, the defendant argues that it had no contractual obligation to ensure that the leads that it provided to the plaintiff had correct social security numbers.   Indeed, the defendant contends that it would have been a violation of various state and federal privacy laws for it to verify the social security numbers of the leads.   The defendant also argues that the plaintiff failed to satisfy a condition precedent under the terms of the contracts.   According to the defendant, the subject contracts mandated that the plaintiff notify the defendant of any discrepancies within forty-eight hours of the original lead delivery date and send weekly reports regarding the leads that it received.   The defendant argues that the plaintiff failed to satisfy these conditions precedent, and, therefore, the plaintiff has waived its breach of contract claim.

In response, the plaintiff argues that the defendant has failed to meet its burden to establish a lack of any genuine issues of material fact.   The plaintiff argues that the defendant was under a contractual obligation to provide “qualified leads,” and that the defendant breached the parties' contracts because it produced leads “significantly in excess of the quantity requested, and almost entirely worthless ․” Moreover, the plaintiff notes that the defendant has attempted to rely on the “Advertising Standard Terms and Conditions” document dated July 16, 2008 to support its position, even though the plaintiff never saw this document until the commencement of this litigation.   The plaintiff further argues that it was necessary for the leads to have valid social security numbers because Financialaid.com needed social security numbers in order to determine the creditworthiness of people who would be applying for student loan consolidations.   Finally, the defendant contends that the plaintiff's argument regarding its supposed violation of a condition precedent takes the contractual language out of context, and, therefore, that the plaintiff has not waived its breach of contract claim.   For all of these reasons, the plaintiff argues that the defendant's motion for summary judgment should be denied.

Having determined that the court should not consider either version of the Schechter and Thomashow affidavits because they are unsworn and untimely, the defendant must prove that it is entitled to judgment as a matter of law based on its two remaining exhibits, which are a copy of the December 5, 2006 contract between the parties and the “Advertising Standard Terms and Conditions” document dated July 16, 2008.   In his affidavit offered in opposition to the defendant's summary judgment motion, McCluskey attests that:  “the Plaintiff did not receive a copy of the document entitled ‘Ampere Media LLC Advertising Standard Terms and Conditions' before or at the time it entered into the March or December 2006 Agreement.”   McCluskey further attests that the first time that the plaintiff received such a document was after the defendant filed a motion to dismiss in this lawsuit.   The defendant has produced no evidence that clearly disproves these attestations.³  Consequently, there is a genuine issue of material fact as to whether the “Advertising Standard Terms and Conditions” document was actually a part of the parties' contract.   Accordingly, this document cannot be used by the defendant to demonstrate that there are no genuine issues of material fact regarding the plaintiff's breach of contract claim.   As such, in order for the defendant to prevail on its motion for summary judgment as to count one, it must be clear from the language of the parties' agreements that the defendant did not breach the subject contracts.

“A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction ․ [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and ․ the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract ․ Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.”  (Internal quotation marks omitted.)  Office of Labor Relations v. New England Health Care Employees Union, District 1199, AFL-CIO, 288 Conn. 223, 231-32, 951 A.2d 1249 (2008).  “If a contract is unambiguous within its four corners, intent of the parties is a question of law ․ Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.   A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity ․” (Internal quotation marks omitted.)  O'Connor v. Waterbury, 286 Conn. 732, 744, 945 A.2d 936 (2008).  “A contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself ․ Accordingly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms ․ When the language of a contract is ambiguous, the determination of the parties' intent is a question of fact ․” (Internal quotation marks omitted.)  Id., 743.

“Interpretation of the written terms of a contract and the degree of compliance by the parties are questions of fact to be determined by the trier of fact.”  Burns v. Quinnipiac University, 120 Conn.App. 311, 322, 991 A.2d 666 (2010).

The December 5, 2006 agreement provides as follows:  “Ampere Media LLC will make a best effort to generate qualified leads.   Each lead is carefully reviewed by our exclusive lead generation technology.   Each lead is guaranteed to be deliverable to a valid postal address.   However, no credits or discounts are issued for leads that could not be reached by phone or e-mail.   No other guarantees or representations are made.   Data to be gathered:  First name, last name, address, city, state, email address, phone number.   Page 2 per data provided by List Services.”   From the face of the contract, it is unclear precisely what the term “qualified leads” means.   The defendant argues that its only contractual obligations were to collect leads that were deliverable to a valid postal address and to collect the data that is specifically enumerated in the contract.   In contrast, the plaintiff has produced a contract between the plaintiff and Financialaid.com that is dated January 12, 2006.   This document is the plaintiff's exhibit 2. According to this contract, a “valid lead” is defined as a “yes” answer to the question “Do you have $7,500 in student loan debt,” as well as “no” answers to the questions “Are any of your student loans in default,” and “Are you a full time student.”   The January 12, 2006 contract further provides that a “valid lead” includes a correct “First Name, Last Name, Address, Phone Number, Email, SSN.” In his affidavit, McCluskey attests that in the March 19, 2006 and December 5, 2006 contracts, that the parties agreed that the defendant “would provide qualified lead information as set forth [in the January 12, 2006 contract] for Financialaid.com's use ․” As the language of the subject contracts regarding what constitutes a qualified lead is ambiguous, this attestation is sufficient to raise a genuine issue of material fact as to whether the defendant had to supply valid social security numbers and individuals who answered certain questions correctly in order to provide “qualified leads.”

In an effort to demonstrate that the subject agreements could not have required the defendant to verify the social security numbers of the potential leads, the defendant's reply memorandum cites to a number of state and federal statutes that regulate the dissemination of social security numbers.   Although the court recognizes that because this advertisement campaign occurred on the internet that the defendant would potentially be subject to many different federal and state laws, the relevant statutes of the two states at issue here, Illinois and Connecticut, do not make it per se illegal for the defendant to confirm social security numbers.⁴  In its reply memorandum, the defendant cites to 815 Ill. Comp. Stat. 505/2QQ (2007) ⁵ for the proposition that it would have been illegal for the defendant to collect social security information under Illinois law.   An examination of this statute, however, reveals that it only prohibits the printing of a social security number on a health insurance card, and, therefore, the statute is inapplicable to the present case.   Furthermore, the relevant statute in this state, General Statutes § 42-470, does not prohibit the use of social security numbers “for internal verification or administrative purposes.” ⁶  As the plaintiff contends that the purpose of obtaining the social security numbers of the leads was to verify whether the individual would be appropriate for a student loan consolidation, the defendant has failed to affirmatively demonstrate that the parties' agreements are in violation of § 42-470.

Finally, the defendant argues that the plaintiff breached a condition precedent, and, therefore, that the plaintiff has waived its breach of contract claim.  “Whether the performance of a certain act by a party to a contract is a condition precedent to the duty of the other party to act depends on the intent of the parties as expressed in the contract and read in light of the circumstances surrounding the execution of the instrument.”  (Internal quotation marks omitted.)  Gingras v. Avery, 90 Conn.App. 585, 590, 878 A.2d 404 (2005).  “It is axiomatic that the intent of the parties is a question of fact.   Summary judgment is inappropriate where the inferences that the parties seek to have drawn concern questions of intent.”  Reid & Riege v. Brainerd Cashman Ins. Agency, 26 Conn.App. 580, 584, 602 A.2d 1051 (1992).   The defendant contends that the plaintiff failed to satisfy two different conditions precedent.   First, the defendant states that the subject contracts required the plaintiff to notify the defendant of any invalid leads with forty-eight hours.   As stated in the December 5, 2006 contract:  “Client is responsible for reporting any discrepancies between actual lead data received and the confirmed lead count as provided by Ampere Media.   Ampere Media must be notified by client via email to athomashow@AmpereMedia.com of any discrepancies within 48 business hours of original lead delivery date.”  (Emphasis added.).   As correctly pointed out by the plaintiff, however, this contractual language only refers to discrepancies in the amount of leads, not the quality of the leads.

Second, the defendant argues that the plaintiff was required to send weekly reporting lists to the defendant regarding the number of leads that it received.   The December 5, 2006 contract does state that “Client will send weekly reporting to:  LeadReporting@amperemedia.com.” Although the plaintiff does not dispute that it did not send a weekly report as provided in the contracts, the defendant has not demonstrated why this failure on the part of the plaintiff would preclude the plaintiff from bringing this action.   There is no language in the relevant contracts indicating that the plaintiff's failure to send a weekly report would bar the plaintiff from commencing a civil action seeking redress for the defendant's alleged breach of contract.   The defendant has also not brought forth any evidence indicating that this was the intent of the parties.   Accordingly, the defendant has failed to demonstrate that the plaintiff breached a contractual condition precedent that would entitle the defendant to summary judgment in its favor on count one.

For all of these reasons, the defendant has failed to establish that there are no genuine issues of material fact as to count one.   Therefore, the motion for summary judgment on this count is denied.

II

UNJUST ENRICHMENT

The defendant also moves for summary judgment on count two, unjust enrichment, because “[t]he parties agree that there was a contract setting forth their obligations to each other.   The contract is a complete bar to the plaintiff's claim for unjust enrichment.”   In its memorandum of law, the defendant argues that because there is no genuine issue of material fact that there was a contract between the parties, then the plaintiff is precluded, as a matter of law, from any recovery under the theory of unjust enrichment.   The plaintiff responds that it should be allowed to plead unjust enrichment in the alternative because it alleges that it made payments to the defendant for data that could not be used and that the defendant wrongfully benefitted from these payments.

“A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another ․ Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy ․ Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment.”  (Internal quotation marks omitted.)  New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 451-52, 970 A.2d 592 (2009).   Because unjust enrichment is an equitable cause of action, “[p]roof of a contract enforceable at law precludes the equitable remedy of unjust enrichment ․” Polverari v. Pratt, 29 Conn.App. 191, 199, 614 A.2d 484, cert. denied, 224 Conn. 913, 617 A.2d 166 (1992).   Nevertheless, “[p]arties routinely plead alternative counts alleging breach of contract and unjust enrichment, although in doing so, they are entitled only to a single measure of damages arising out of these alternative claims ․ Under this typical belt and suspenders approach, the equitable claim is brought in an alternative count to ensure that the plaintiff receives some recovery in the event that the contract claim fails.”  (Citations omitted;  internal quotation marks omitted.)  Stein v. Horton, 99 Conn.App. 477, 485, 914 A.2d 606 (2007).  “[T]he existence of a contract, in itself, does not preclude equitable relief which is not inconsistent with the contract ․” (Internal quotation marks omitted.)  Fuller v. Fuller, 119 Conn.App. 105, 119, 987 A.2d 1040, cert. denied, 296 Conn. 904, 992 A.2d 329 (2010).   Rather, it is the “lack of a remedy under the contract [that] is a precondition for recovery based upon unjust enrichment.”  (Emphasis added;  internal quotation marks omitted.)  Marlin Broadcasting, LLC v. Law Office of Kent Avery, LLC, 101 Conn.App. 638, 651 n.7, 922 A.2d 1131 (2007).

The defendant's sole argument in support of its motion for summary judgment on count two is that the existence of a contract between the parties precludes any recovery for unjust enrichment.   While it is true that both sides agree that there were written contracts in effect between the parties, that fact alone does not mandate that the defendant is entitled to summary judgment on the plaintiff's claim for unjust enrichment.   As demonstrated by the above cited case law, the plaintiff could succeed on an unjust enrichment claim in the event that a fact finder determines that the plaintiff cannot obtain a remedy for the defendant's alleged breach of contract.   Consequently, the defendant has failed to demonstrate that there are no genuine issues of material fact regarding the plaintiff's unjust enrichment cause of action.   Accordingly, the defendant's motion for summary judgment on count two is denied.

CONCLUSION

For all of the reasons stated above, the defendant's motion for summary judgment is denied in its entirety.

Marano, J.

FOOTNOTES

FN1. 28 U.S.C. § 1746 provides:  “Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:“(1) If executed without the United States:  ‘I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.   Executed on (date).  (Signature).’“(2) If executed within the United States, its territories, possessions, or commonwealths:  ‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.   Executed on (date).  (Signature).’ “.  FN1. 28 U.S.C. § 1746 provides:  “Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:“(1) If executed without the United States:  ‘I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.   Executed on (date).  (Signature).’“(2) If executed within the United States, its territories, possessions, or commonwealths:  ‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.   Executed on (date).  (Signature).’ “

FN2. The court also notes that the plaintiff has attached some unauthenticated documentary evidence in opposition to the defendant's motion for summary judgment.   Under Connecticut law, “before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.”  (Internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   Nevertheless, a court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   As the defendant has not objected to the plaintiff's use of unauthenticated documentary evidence in opposition to the motion for summary judgment, the court can consider this evidence when ruling on the motion..  FN2. The court also notes that the plaintiff has attached some unauthenticated documentary evidence in opposition to the defendant's motion for summary judgment.   Under Connecticut law, “before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.”  (Internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   Nevertheless, a court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   As the defendant has not objected to the plaintiff's use of unauthenticated documentary evidence in opposition to the motion for summary judgment, the court can consider this evidence when ruling on the motion.

FN3. The December 5, 2006 agreement does state that:  “This Insertion Order/Invoice Incorporates Publisher standard terms and conditions, Client Acknowledges that it has read and agrees to be bound by them:  www.amperemedia.com/terms.html.” Although the “Advertising Standard Terms and Conditions” document does appear to be a print off from this internet address, the date on this document is July 16, 2008.   As the contracts between the parties were formed in March and December 2006, there is no way of knowing whether this document accurately reflects the terms and conditions that were integrated into the parties' agreements..  FN3. The December 5, 2006 agreement does state that:  “This Insertion Order/Invoice Incorporates Publisher standard terms and conditions, Client Acknowledges that it has read and agrees to be bound by them:  www.amperemedia.com/terms.html.” Although the “Advertising Standard Terms and Conditions” document does appear to be a print off from this internet address, the date on this document is July 16, 2008.   As the contracts between the parties were formed in March and December 2006, there is no way of knowing whether this document accurately reflects the terms and conditions that were integrated into the parties' agreements.

FN4. According to the “Advertising Standard Terms and Conditions” document, the parties agreed that the subject contracts would be interpreted under Illinois law.   As there is a question of fact regarding whether this document was actually part of the parties' contracts, this memorandum will analyze this issue under both Illinois and Connecticut law..  FN4. According to the “Advertising Standard Terms and Conditions” document, the parties agreed that the subject contracts would be interpreted under Illinois law.   As there is a question of fact regarding whether this document was actually part of the parties' contracts, this memorandum will analyze this issue under both Illinois and Connecticut law.

FN5. 815 Ill. Comp. Stat. 505/2QQ (2007) provides:  “Insurance cards;  social security number. (a) As used in this Section, ‘insurance card’ means a card that a person or entity provides to an individual so that the individual may present the card to establish the eligibility of the individual or his or her dependents to receive health, dental, optical, or accident insurance benefits, prescription drug benefits, or benefits under a managed care plan or a plan provided by a health maintenance organization, a health services plan corporation, or a similar entity.“(b) A person or entity may not print an individual's social security number on an insurance card.   A person or entity that provides an insurance card must print on the card an identification number unique to the holder of the card in the format prescribed by Section 15 of the Uniform Prescription Drug Information Card Act.“(c) An insurance card issued to an individual before the effective date of this amendatory Act of the 93rd General Assembly that does not comply with subsection (b) must be replaced by January 1, 2006 with an insurance card that complies with subsection (b) if the individual's eligibility for benefits continues after the effective date of this amendatory Act of the 93rd General Assembly.“(d) A violation of this Section constitutes an unlawful practice within the meaning of this Act.”.  FN5. 815 Ill. Comp. Stat. 505/2QQ (2007) provides:  “Insurance cards;  social security number. (a) As used in this Section, ‘insurance card’ means a card that a person or entity provides to an individual so that the individual may present the card to establish the eligibility of the individual or his or her dependents to receive health, dental, optical, or accident insurance benefits, prescription drug benefits, or benefits under a managed care plan or a plan provided by a health maintenance organization, a health services plan corporation, or a similar entity.“(b) A person or entity may not print an individual's social security number on an insurance card.   A person or entity that provides an insurance card must print on the card an identification number unique to the holder of the card in the format prescribed by Section 15 of the Uniform Prescription Drug Information Card Act.“(c) An insurance card issued to an individual before the effective date of this amendatory Act of the 93rd General Assembly that does not comply with subsection (b) must be replaced by January 1, 2006 with an insurance card that complies with subsection (b) if the individual's eligibility for benefits continues after the effective date of this amendatory Act of the 93rd General Assembly.“(d) A violation of this Section constitutes an unlawful practice within the meaning of this Act.”

FN6. General Statutes § 42-470(d) provides:  “This section does not prevent the collection, use or release of a Social Security number as required by state or federal law or the use of a Social Security number for internal verification or administrative purposes.”.  FN6. General Statutes § 42-470(d) provides:  “This section does not prevent the collection, use or release of a Social Security number as required by state or federal law or the use of a Social Security number for internal verification or administrative purposes.”

Marano, Richard M., J.