McIntire Company v. Trent, Co. et al. (2013)

MEMORANDUM OF DECISION

The plaintiff, McIntire Company (McIntire) has brought a complaint against the defendants, Trent Co., and Gary D. Trent (collectively, Trent Co. or defendant), arising out of a Sales Representative Agreement (Agreement), with McIntire for the representation of McIntire products.   The four-count complaint claims breach of contract, violation of Connecticut Unfair Trade Practices Act (CUTPA), violation of Connecticut Uniform Trade Secrets Act (CUTSA), and tortious interference with business expectancies, and seeks damages.   The defendant has filed an answer and special defenses, and asserts two counterclaims, sounding in breach of contract and violation of CUTPA.

A court trial was held on July 10 and July 11, 2013.   Subsequently, each party submitted post-trial briefs.¹  The court has reviewed the evidence admitted, the testimony provided, the arguments set forth in the parties' briefs, the cases and authority cited therein, and renders this decision after careful consideration of all of these items.

I

FINDINGS OF FACT

“In a bench trial ․ the court sits as the trier of fact ․” (Internal quotation marks omitted.)  Knock v. Knock, 225 Conn. 776, 793, 621 A.2d 267 (1993).   The court makes the following findings of fact based upon the more credible evidence.

This case involves an industry which is slowly phasing itself out due to the new technology that is taking over.   As William Rotenberry, the CEO of McIntire explained, the company's product is supporting a “legacy infrastructure,” that is, outdated technology that is in decline due to the advancement of fiber optics for telecommunications.

McIntire manufactures and sells air dryers and related parts for the telecommunications industry.   The air dryers are used to pump pressurized air into underground tubing which house underground cables.   If there is any breach in the tubing, the positive pressure from the air dryers will keep any water or moisture out.   With the telecommunications industry moving to fiber optics, the need for air dryers is becoming less and less, and therefore McIntire is a company with declining sales since the industry they serve is also declining.   Because of this, Rotenberry underscored the importance of not only selling air dryers whenever possible, but also selling the air dryer parts to support and maintain the existing air dryers.

Trent Co. (formerly known as Trentco, Inc.), was a sales representative for a company selling air dryers and parts known as ADK. In 1995, ADK was taken over by McIntire, and a decision was made to sign Trent Co. as a sales representative for McIntire.   Trent Co. entered into the Agreement to sell McIntire products and to receive compensation.  (Plaintiff's Exh. 1.) The Agreement was a standard agreement for sales representatives of McIntire, and McIntire never allowed a modification of the Agreement.²  The Agreement contained a non-compete clause which was agreed to by Trent Co., and provides that “[i]n consideration for the training, compensation and continued representation of [McIntire], the Sales Representative agrees that he will not act in any way as a Representative or Agent of any manufacture or seller of products similar to those products offered by [McIntire].”  (Emphasis in original.)  Id., ¶ 8.

Trent Co. furthered acknowledged that “[it] recognize[d] and agree[d] that any and all price and customer lists, together with any and all documents indicating any financial information between the Sales Representative and [McIntire] and all documents or knowledge concerning new products or ongoing research are considered to be proprietary, confidential and protected by the Uniform Trade Secrets Act ․ The Sales Representative agrees to recognize and defend [McIntire's] rights with respect to said information.”  Id., ¶ 12.   Rotenberry stated that McIntire was seeking to protect the information of what the customers were buying and what they were paying for the products.   This information was obviously shared with Trent Co.

Sometime in 1997, TX Technology, a company which also manufactures products for telecommunications, and a competitor of McIntire, wanted to hire Trent Co. as a sales representative for their products.   Knowing that Trent Co. had an agreement with McIntire, Donald Black, the general manager of TX, testified that he called Bob Peck, the national sales manager at McIntire, to “get his permission to bring Gary [Trent] on board” for the sale of monitoring systems.³  Black testified that his understanding with Peck was that Gary would only be selling TX's monitoring systems, and these monitoring systems would compliment the McIntire air dryer products that Gary was selling on behalf of McIntire.   Notwithstanding this “understanding,” Black testified that Trent Co. did engage in selling air dryer parts on behalf of TX to McIntire customers and others, and was compensated by TX for those efforts.

The relationship between Trent Co., and McIntire was not without problems.   In October 1999, Trent Co. sent a letter to Peck expressing dissatisfaction that the commissions on air dryers was dropped from ten percent to eight percent.   (Plaintiff's Exh. 16.)   In 2004, Qwest Communications was removed from Trent Co.'s territory (Plaintiff's Exh. 15);  and in 2009, McIntire removed the California territory from Trent Co. (Plaintiff's Exh. 13.)

In 2000, Trent Co. began discussions with another competitor of McIntire, Pentras, which sold air dyers and air dryer parts.   As a result, Trent Co. and Pentras entered into an oral agreement to sell air dryer parts at a commission rate of fifteen (15) percent, compared with the ten (10) percent offered by McIntire.   Pentras competes directly with McIntire with respect to air dryer parts, and Trent Co. sold Pentras parts to McIntire customers.  (Plaintiff's Exh. 6.) In order to promote Pentras and its products, Trent Co. put together tool kits which contained specialized tools to service the air dryers with Pentras' insignia and other related marketing items such as hats with the logo of Pentras.   This all took place while the Agreement between Trent Co. and McIntire was in effect.

In 2010, Rotenberry was contacted by a trusted customer, and he learned that Trent Co. was selling air dryer products for another company to McIntire customers.   Peck handled the termination of the Agreement, and McIntire stopped paying commissions to Trent Co. in December 2010, with approximately $9,000 outstanding at that time.   Rotenberry as president of McIntire then made the decision to institute this suit.   It is claiming damages for the lost commissions as well as repayment for the commissions paid out while Trent Co. was in breach of this Agreement.

Additional facts shall be set forth as necessary.

II

DISCUSSIONA. Plaintiff's ComplaintCount One—Breach of Contract

McIntire claims damages for breach of contract based upon the August 7, 1995, Agreement.   It claims that Trent Co. breached the Agreement by serving as a sales representative of direct competitors of McIntire, and selling the competitor's products and/or parts to McIntire customers.

“The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other, and damages.”  (Internal quotation marks omitted.)  American Express Centurion Bank v. Head, 115 Conn.App. 10, 15–16, 971 A.2d 90 (2009).  “It is a fundamental principle of contract law that the existence and terms of a contract are to be determined from the intent of the parties ․ [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 [writing] ․ Where the language of the [writing] is clear and unambiguous, the [writing] 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.”  (Citations omitted;  internal quotation marks omitted.)  Auto Glass Express v. Hanover Insurance Co., 293 Conn. 218, 225–26, 975 A.2d 1266 (2009).

After careful review of all the evidence and corresponding legal principles, the court concludes that McIntire has sustained its burden of proof as to a breach of contract claim against Trent Co. The contract was clear, concise and unambiguous.   In pursuance of the contract, McIntire would provide training and compensation for the sales of its products by the defendant, performing all of its obligations and requirements.   The defendant breached the Agreement by acting as a sales representative of companies with products similar to those offered by McIntire.

Trent Co. argues that McIntire waived the noncompete clause and/or orally modified the Agreement to prevent the enforcement of this clause.   It contends McIntire personnel always knew that Trent Co. represented competitors, and that its sales director, Peck, authorized Trent Co. to represent other companies that sold similar products, provided that Trent Co. could not sell another company's air dryer.

There was no credible evidence provided to indicate that any oral modifications had been made, or that there was any waiver of the non-compete clause to the Agreement.   The court finds in favor of McIntire on this count.   The question of damages is addressed below.

Count Two—Violation of CUTPA

McIntire claims that the defendant, a sales representative of McIntire entrusted with important, valuable, confidential customer information, used its position and customer information to profit himself and his company to the detriment of McIntire.   Specifically, it is alleged that Trent Co. sold to customers of McIntire similar products from competitors while also acting as a sales representative of McIntire, and represented to customers of McIntire that competitor's products were identical to McIntire's products.   In addition, McIntire promoted the name and products of a competitor, somehow suggesting that the competitor was part of the McIntire corporate family through the use of promotional products.   By these actions, McIntire alleged that Trent Co. has engaged in unfair methods of competition and/or committed unfair or deceptive acts or practices.

“It is well settled that in determining whether a practice violates CUTPA [our appellate courts] have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair:  (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] ․ All three criteria do not need to be satisfied to support a finding of unfairness.   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.”  (Internal quotation marks omitted.)  Centimark Corp. v. Village Manor Associates Ltd. Partnership, 113 Conn.App. 509, 523, 967 A.2d 550 (2009).⁴  “Thus a violation of CUTPA may be established by showing either an actual deceptive practice ․ or a practice amounting to a violation of public policy ․ In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice ․” (Internal quotation marks omitted.)   Kosiorek v. Smigelski, 112 Conn.App. 315, 321–22, 962 A.2d 880, cert. denied, 291 Conn. 903, 967 A.2d 113 (2009).  “[I]n order to prevail in a CUTPA action, a plaintiff must establish both that the defendant has engaged in a prohibited act and that, as a result of this act, the plaintiff suffered an injury.”  Stevenson Lumber Co.-Suffield, Inc. v. Chase Associates, Inc., 284 Conn. 205, 214, 932 A.2d 401 (2007).

The conduct of Trent Co. implicates the second and third prong of the cigarette rule.   It utilized valuable customer information to profit himself and his company to the detriment of McIntire and such conduct constitutes “immoral, unethical, oppressive, or unscrupulous” conduct.   Moreover, Trent Co.'s conduct resulted in substantial injury to the consumers by selling products only for its own financial gain.   The conduct went beyond a simple breach of contract in that Trent Co. used information obtained through its relationship with McIntire, and promoted McIntire's competitors through its marketing efforts.   The circumstances surrounding the breach include deception and allegations of unfairness that rise to the level of immoral, oppressive or unethical conduct in business relations, which in turn resulted in injury to consumers and competitors.

The evidence supports the conclusion that the unfair or deceptive trade practice caused harm to McIntire.   The “harm” remediable by CUTPA is an “ascertainable loss.”  Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 217–18, 947 A.2d 320 (2008).  “An ‘ascertainable loss' is a loss that is capable of being discovered, observed or established ․ The term ‘loss' necessarily encompasses a broader meaning than the term ‘damage,’ and has been held synonymous with deprivation, detriment and injury ․ To establish an ascertainable loss, a plaintiff is not required to prove actual damages of a specific dollar amount ․ [A] loss is ascertainable if it is measurable even though the precise amount of the loss is not known ․

“A plaintiff also must prove that the ascertainable loss was caused by, or a result of, the prohibited act ․ When plaintiffs seek money damages, the language ‘as a result of’ in § 42–110g(a) requires a showing that the prohibited act was the proximate cause of a harm to the plaintiff ․ [P]roximate cause is [a]n actual cause that is a substantial factor in the resulting harm ․ The question to be asked in ascertaining whether proximate cause exists is whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's act ․” Id., 218–19.

The evidence shows that the defendant was representing competitors of McIntire while under a specific agreement that it would only act on behalf of McIntire.   The court finds Trent Co. engaged in actions which were unethical and unscrupulous.   The type of practices employed by Trent Co. in utilizing customer lists provided by Trent Co. and promoting competitors' products are the type of unethical and unscrupulous acts that CUTPA seeks to prohibit.   Trent Co.'s actions caused McIntire an ascertainable loss, entitling it to damages, costs and attorneys fees under CUTPA.   Based upon the testimony and evidence presented, the court finds that the plaintiff has established, by a fair preponderance of the evidence, that the defendant has violated the Connecticut Unfair Trade Practices Act.

Count Three—Violation of CUTSA

The plaintiff alleges a violation of CUTSA, Connecticut's version of the Uniform Trade Secrets Act (CUTSA), which is codified at General Statutes § 35–50 et seq.   It alleges that Trent Co. acquired proprietary and confidential information through McIntire's customer lists and their buying requirements and history, which information constituted a trade secret under CUTSA.   Trent Co. used such information to divert sales from McIntire to its competitors.

A plaintiff can seek damages, among other remedies, for the misappropriation of trade secrets.  “Misappropriation” includes “acquisition of a trade secret by a person who knows or has reason to know that the trade secret was acquired by “improper means.”  General Statutes § 35–51(b)(1).   It also includes:  [d]isclosure or use of a trade secret ․ without express or implied consent by a person who (A) used improper means to acquire knowledge of the trade secret or (B) at the time of the disclosure or use, knew that the knowledge of the trade secret was (i) derived from or through a person who had utilized improper means to acquire it;  (ii) acquired under circumstances giving rise to a duty to maintain its secrecy ․;  or (iii) derived from a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use ․” General Statutes § 35–51(b)(2)(A) and (B).

“Improper means,” for purposes of the allegations in this complaint include:  theft and “breach or inducement of a breach of a duty to maintain secrecy.”   General Statues § 35–51(a).   The defendant is alleged to have breached its duty to maintain the secrecy of the information contained in the customer lists and related proprietary information.

Under CUTSA, proof of misappropriation requires proof of the existence of a “trade secret.”   Determining whether Trent Co. used “improper means” or “misappropriated” the information contained on the customer lists provided to Trent Co. requires, in the first instance, that such information constituted “trade secrets.”  “A primary issue to be determined ․ is whether there is a trade secret existing which is to be protected.”  Elm City Cheese Co. v. Federico, 251 Conn. 59, 71, 752 A.2d 1037 (1999).

“Trade secret” is defined to include:  “information, including a ․ compilation, ․ or customer list that:  (1) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use;  and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”  General Statutes § 35–51(d).

The statutory definition of a trade secret is reflective of the factors courts typically consider when determining the existence of a trade secret:  “(1) the extent to which the information is known outside the business;  (2) the extent to which it is known by employees and others involved in the business;  (3) the extent of measures taken by the employer to guard the secrecy of the information;  (4) the value of the information to the employer and to his competitors;  (5) the amount of effort or money expended by the employer in developing the information;  and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.   Additional factors cited by courts are:  (7) the extent to which the principal-agent relationship was a confidential or fiduciary one;  (8) the method by which the former agent acquired the alleged secret;  (9) the former agent's personal relationship with the customers;  and (10) the unfair advantage accruing to the former agent from the use of his former principal's alleged secret.”   Nationwide Mutual Ins. Co. v. Stenger, 695 F.Sup. 688, 691 (D.Conn.1988).

Although the Agreement between the parties referenced the price and customer lists as being proprietary and confidential, there was no evidence to indicate that McIntire took any measures to otherwise maintain its secrecy.   Gary Trent testified that much of the information regarding the pricing for parts, etc., is readily available on the internet or through other forums.   Also, the companies which sell products in this very specialized, albeit dying industry, are few, and the identities of the customers' are not a trade secret but readily available to the companies attempting to sell products to them.

Judgment shall enter in favor of Trent Co. on this count.

Count Four—Tortious Interference with Business Expectancies

“A successful action for tortious interference with business expectancies requires the satisfaction of three elements:  (1) a business relationship between the plaintiff and another party;  (2) the defendant's intentional interference with the business relationship while knowing of the relationship;  and (3) as a result of the interference, the plaintiff suffers actual loss.”   (Internal quotation marks omitted.)  American Diamond Exchange, Inc. v. Alpert, 101 Conn.App. 83, 90, 920 A.2d 357, cert. denied, 284 Conn. 901, 931 A.2d 261 (2007).

“Our case law has recognized that not every act that disturbs a business expectancy is actionable.  [A] claim is made out [only] when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself ․ Accordingly, the plaintiff must plead and prove at least some improper motive or improper means ․ [F]or a plaintiff successfully to prosecute such an action it must prove that ․ the defendant was guilty of fraud, misrepresentation, intimidation or molestation ․, or that the defendant acted maliciously ․ In the context of a tortious interference claim, the term malice is meant not in the sense of ill will, but intentional interference without justification ․ In other words, the [plaintiff] bears the burden of alleging and proving lack of justification on the part of the [defendant] ․ Our Supreme Court has recognized that the legal theory of tortious interference with a business expectancy encompasses a broad range of behavior.”  (Citations omitted;  internal quotation marks omitted.)  Id., 90–91.

There is no bright line rule as to whether an actor's “interference” is improper or without justification.   Rather, courts consider several factors set forth in the Restatement (Second) of Torts, § 767, including:  “(a) the nature of the actor's conduct, (b) the actor's motive, (c) the interests of the other with which the actor's conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor's conduct to the interference and (g) the relations between the parties.”  (Internal quotation marks omitted.)   Id., 91 n.4.

The tort of interference with business relations can overlap an unfair trade practice, since as to the former, the plaintiff must prove a malicious or deliberate interference to a competitor's business relations and under the latter, it need only prove that the defendant engaged in unfair competition or in an unfair or deceptive act.   See, Web Press Services Corp. v. New London Motors, 203 Conn. 342, 363, 525 A.2d 57 (1987).

“Unlike other torts in which liability gives rise to nominal damages even in the absence of proof of actual loss, it is an essential element of the tort of unlawful interference with business relations that the plaintiff suffered actual loss.”  (Citations omitted;  internal quotation marks omitted.)  Hi–Ho Tower, Inc. v. Com–Tronics, Inc., 255 Conn. 20, 33, 761 A.2d 1268 (2000).   “A major problem with damages of this sort, [however], is whether they can be proved with a reasonable degree of certainty ․ If the question is whether the plaintiff would have succeeded in attaining a prospective business transaction in the absence of [the] defendant's interference, the court may, in determining whether the proof meets the requirement of reasonable certainty, give due weight to the fact that the question was made hypothetical by the very wrong of the defendant.   Sometimes, when the court is convinced that damages have been incurred but the amount cannot be proved with reasonable certainty, it awards nominal damages.   Thus, an award of compensatory damages is not necessary to establish a cause of action for tortious interference as long as there is a finding of actual loss ․” (Citations omitted;  internal quotation marks omitted.)  Id., 34.

The conduct of the defendant in representing competitors of McIntire in the sale of the same products provides the necessary evidence that the conduct was in fact tortious.   The acts on the part of Trent Co. are sufficient to support a cause of action for interference with business expectancy.   Trent Co. was well aware of the business relationships that McIntire had with various customers.   The use of the contact and customer information by Trent Co. to poach customers supports the proof of tortious interference of McIntire's contractual and business relations as well as supporting the proof of a violation of CUTPA.   In order to make up for the territories that were taken away from Trent Co., as well as the decrease in percentages for commission sales, Trent Co. made agreements with competitors to sell their products and parts at a higher commission.   Common sense would dictate that if given the choice whose products to sell, Trent Co. would sell the ones in which it received a higher commission.

The court finds that the plaintiff has proven by a preponderance of the evidence that the defendant interfered with McIntire's existing or prospective business relationships.

B. Defendant's Counterclaims

Count One—Breach of Contract

Trent Co. claims that McIntire is in breach of the Agreement for its failure to pay commissions pursuant to Paragraph 5B of the Agreement which provides that such payment “shall be made within twenty-one (21) days following the month shipment is made.”   McIntire has acknowledged that it stopped paying commissions to Trent Co. in December 2010, when it discovered that Trent Co. was selling competitors' products in violation of the Agreement.   Specifically, McIntire has identified $9,000 in earned commissions which were due but not paid.   McIntire claims that these are not due because of Trent Co.'s long standing breach of the Agreement and the automatic termination clause set forth in Paragraph 8.⁵

Trent Co. also argues that McIntire is in violation of the terms of the Agreement when it transferred the California sales territory from Trent Co. Based on that argument, Trent Co. is seeking claimed California commissions as well as commissions it believes it is still owed.

The court finds in favor of McIntire on this count.   It is clear that Trent Co. was in breach of the Agreement at the time the unpaid commissions of approximately $9,000 were to be paid.   In accordance with the Agreement, Trent Co.'s breach served as an automatic termination of the contract, with no further commission payments due.   Furthermore, there is no allegation that the transfer of the California territory was a breach of the Agreement.

Count Two—Violation of CUTPA

The court has previously set forth the requirements to establish a violation of CUTPA.   Trent Co. fails to meet any of the criteria necessary to establish such a violation.   Given the factual findings set forth above, the court finds that McIntire's conduct was neither unscrupulous nor unethical.   It did not implicate public policy.   There was no evidence of substantial consumer injury.   There was no evidence to establish that McIntire had agreed to Trent Co. representing other companies and selling the very products that Trent Co. was hired to sell for McIntire.   Judgment will enter in favor of McIntire on this count.

C. Damages

The parties each filed supplemental briefs setting forth their claims for damages.   Because the court has only found in favor of McIntire and against Trent Co., the court shall address the damages claimed by McIntire.   McIntire is seeking:

1. $107,957 in lost profits based on commissions received by Trent Co. from Pentras;

2. $4,195.57 in lost profits based on commissions received by Trent Co. from TX Technology;  and

3. $186,768.31 in damages based upon commission paid to Trent Co. during a time when Trent Co. was in breach of the Agreement when Trent Co. was acting on behalf of competitors during the period between 2008–2011.

McIntire has based its calculations for numbers 1 and 2 above on Trent Co.'s disclosures which set forth the amounts Trent Co. received in commissions from these competitors, and then calculated a fifteen (15) percent margin on the sales.  (Plaintiff's Exh. 6.) The damages claimed in number 3 for commissions paid by McIntire to Trent Co. are set forth in McIntire's Detailed Commission Reports.  (Plaintiff's Exhs. 2–5.)   McIntire claims that since the Agreement provides for an automatic termination upon breach, and no further commission payments are due thereafter, Trent Co. should repay these commissions.   The court finds no merit in this argument as it relates to the damages claimed in number 3.

Trent Co. objects to McIntire's damages claims, arguing that it did not present any attempt at calculating its damages, and any calculations was based upon speculation and surmise.   The court does not agree.   Trent Co. indicated through its responses that it received commissions from Pentras and TX Technology and provided the amounts.   Based upon those amounts, the plaintiff calculated the amount in gross sales, and then applied a fifteen (15) percent profit margin which was testified to by Rotenberry.   Rotenberry was unable to provide the amount of damages for business that may have been siphoned away from McIntire due to Trent Co. promoting competitors.   Moreover, Rotenberry is unable to determine the damage that may have been done with McIntire's customers going forward—these damages he could not quantify.

The court finds that McIntire has proven its damages in the amount of $112,152.57.   Because the court has found in favor of McIntire on the CUTPA count, it is entitled to punitive damages as well as attorneys fees and costs.

III

CONCLUSION

The court finds in favor of the plaintiff on counts one, two and four, and in favor of the defendant on count three.   With respect to the counterclaims, the court finds in favor of the counter-claim defendant on counts one and two.

Swienton, J.

FOOTNOTES

FN1. The court requested supplemental briefs regarding each parties' claim for damages, which were submitted.   In addition, the defendant filed an objection to McIntire's specification of damages, arguing that it had failed to present admissible evidence of damages at trial, and its purported evidence should be precluded.   The plaintiff filed a reply to said objection..  FN1. The court requested supplemental briefs regarding each parties' claim for damages, which were submitted.   In addition, the defendant filed an objection to McIntire's specification of damages, arguing that it had failed to present admissible evidence of damages at trial, and its purported evidence should be precluded.   The plaintiff filed a reply to said objection.

FN2. Rotenberry testified that in 2005, another sales representative for McIntire, approached him about selling a monitoring line by a competitor in air dryer parts.   The decision was made not to allow the sales representative to take on another competitor, even if it was to sell parts not offered by McIntire It might be confusing to a consumer that the sales representative was there to sell a monitoring system for one company, and to sell air dryer/parts on behalf of McIntire, Rotenberry explained..  FN2. Rotenberry testified that in 2005, another sales representative for McIntire, approached him about selling a monitoring line by a competitor in air dryer parts.   The decision was made not to allow the sales representative to take on another competitor, even if it was to sell parts not offered by McIntire It might be confusing to a consumer that the sales representative was there to sell a monitoring system for one company, and to sell air dryer/parts on behalf of McIntire, Rotenberry explained.

FN3. Bob Peck died during the pendency of this action..  FN3. Bob Peck died during the pendency of this action.

FN4. Although our Appellate Courts have adopted the cigarette rule set forth, the Federal Trade Commission, in 1980, issued a policy statement on unfairness, emphasizing “that unjustified consumer injury is the primary focus of the act and the most important of the three cigarette rule criteria” Ulbrich v. Groth, 310 Conn. 375, 474, A.3d (2013) (Justice Zarella dissenting.)  “Although the commission was focusing upon substantial injury to consumers, one commentator has claimed that the test is equally applicable when a business person or competitor claims substantial injury.   We agree.”  McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn 558, 570, 473 A.2d 1185 (1984)..  FN4. Although our Appellate Courts have adopted the cigarette rule set forth, the Federal Trade Commission, in 1980, issued a policy statement on unfairness, emphasizing “that unjustified consumer injury is the primary focus of the act and the most important of the three cigarette rule criteria” Ulbrich v. Groth, 310 Conn. 375, 474, A.3d (2013) (Justice Zarella dissenting.)  “Although the commission was focusing upon substantial injury to consumers, one commentator has claimed that the test is equally applicable when a business person or competitor claims substantial injury.   We agree.”  McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn 558, 570, 473 A.2d 1185 (1984).

FN5. Paragraph 8 is the non-compete clause.  “Breach of this section shall automatically terminate this contract.   If this contract is terminated due to breach of this section, no further commission payments are due the Sales Representative on shipments following the date of breach/termination.”   (Plaintiff's Exh. 1, ¶ 8.).  FN5. Paragraph 8 is the non-compete clause.  “Breach of this section shall automatically terminate this contract.   If this contract is terminated due to breach of this section, no further commission payments are due the Sales Representative on shipments following the date of breach/termination.”   (Plaintiff's Exh. 1, ¶ 8.)

Swienton, Cynthia K., J.