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Rockingham Superior Court Rockingham Cty Courthouse/PO Kingston NH 03848-1258
Telephone: (603) 642-5256
TTY/TDD Relay: (800) 735-2964 http: //www.courts. state.nh.us
NOTICE OF DECISION
Peter G. Callaghan, ESQ Preti Flaherty Beliveau & Pachios PLLP 57 North Ilain Street
PO Box 1318 Concord NH 03302-1318
Case Name: Case Number:
Autonomy NA Hol'dlngs Inc. v Virginia Briody
Enclosed please find a copy of the court's order of November 30, 2012 relative to:
November 30, 2012
Raymond W. Taylor
Clerk of Court
(398) C: Department of Labor;
Kristin M. Yasenka,
J B-2503-S (07/01/2011)
V VIRGINIA BRIODY
AUTONOIIY NA HOLDINGS, INC.
This case presents an appeal from a decision of the New Hampshire
Labor which ruled
favor of the defendant,
the employee, on a wage claim, to which
officer at the Department
a two day hearing on the defendant's
wage claim and thereafter wrote a
seven page detailed Order
favor of the defendant dated July 16, 2012.
appeal is filed pursuant
to RSA 275:51 (V).
Statute reads as follows:
by the decision (of the Labor Department) may appeal to the Superior Court not later than twenty days from the date thereof by Petition, setting forth that the decision is erroneous, in whole or in part, and specifying the grounds upon which the decision is claimed to be in error. Upon the filing of an appeal, the Commissioner shall transfer to the Court the record of the proceedings or a certified copy thereof. The scope of review by the Superior Court shall be limited to questions of law. After hearing and upon consideration of the record, the Court may affirm, vacate or modify in whole or in part the decision of the Commissioner, or may remand the matter to the Commissioner for further findings".
"Any party aggrieved
Both parties concede that Superior Court review of a Labor Department
party is not entitled to a de novo hearing.
parties appear to have a disagreement
as to the scope of review and
the event that
finds factual error.
cites the case of
Demers Aaencv v Widnev 155 N.H. 658 (2007) for the proposition that appeals of Labor
decisions to the Superior Court must be limited to questions of law, not fact.
The plaintiff cites the case of Miller v Blackden 154 N.H. 448 (2006) for the proposition
that Appellate Courts (which presumably
would include the Superior Court in
appeals) review sufficiency of the evidence claims as a matter of law
of the Trial Court (here the Labor Department)
unless they are lacking
by error of law.
has the authority pursuant
to the appeal statute to set aside a
the rare case where
has found that the Labor Department
the facts or failed to properly apply the evidence, such an error
was quasi factual and legal and therefore
makes such a finding
lacking in evidentiary
had the authority to
aside. This Court
case, concluding that the Labor Commissioner's
The Court does not lightly reverse a decision made by the Labor Commissioner.
This is particularly
literary six inches
true in a
which involved two days of testimony
and a review of
and the Court
However the hearing was transcribed
did have an opportunity
to review the testimony of all the parties. to the Labor Department
also was given
the exhibits that were submitted
which the Court did carefully
Thus this Court had the exact same evidence available to
did the Labor
This Court held a hearing on the plaintiffs appeal on November
hearing the plaintiff argued that the most important
to the Labor
was an Affidavit of one Stephen Chamberlain.
The Affidavit is dated
England and did not appear or testify on behalf of
the Court has examined the specifics of the Affidavit and also
and it does find that Mr. Chamberlain,
the related documents
precise detail as to why the defendant was properly compensated
under the employer's written plan for the work she did.
of the other documents
review of the Labor
the Court finds that there
was very wage claim.
issues that relate to the defendant's
for a computer
that the defendant
Associates, Inc. for approximately
plaintiff on or before
six years before that company was bought out by the
June 1, 2010. She was employed by the plaintiff from June 8, 2010
17, 2010 when she was terminated.
Inc., the defendant
a contract to an entity
was multi-year contract.
September of 2009.
Inc. had certain
respect to that contract throughout
Pursuant to her employment
agreement with Computer Associates, Inc., the
defendant was entitled to a commission for the sale to Pioneer Investments
was paid that commission
exceeded $ 100,000.00. The defendant's
of the hearing transcript
of that fact is reflected on page 80
for day one before the Labor Department.
Said page also
records the following question and answer:
"Q. So on that contract you weren't paid a commission based on any face value of the contract? You were paid a commission based on the first three vears of the net contract value (emphasis added);
Is that right?"
fact the contract which the defendant
Pioneer on behalf of
It ran for
Inc. did not remain
existence for three years.
six months only. When Computer Associates, Inc. was bought out by the
to negotiate a new contract with Pioneer at a
higher cost. The defendant did her job well and her efforts resulted in Pioneer signing a
new contract with the plaintiff
September of 2010. That contract total was less than
$500,000.00 more'than the first contract that Pioneer signed
Inc. At some point after demanding
her commission for the second sale to Pioneer, the
upon by Pioneer was that they be forgiven
knew that a condition
to pay the balance due on the first contract that Pioneer signed with
Associates, Inc. That balance due was approximately
Thus when the amount
due on the first Pioneer contract (for which the defendant
from the amount
of the second Pioneer
contract, the so-called "new contract value" amounted
to less than $ 350,000.00. The
contract value was the basis for the payment of a commission.
argued, and the Labor Department
found, that the amount
due her from the second Pioneer sale was based upon the total amount of
that second contract, to wit, $ 1.975 million dollars. Relying on the formula set forth
of $ 97,806.62.
the plaintiff determined
Ms. Briody's commission
to be $ 16,721.91 based
on the new contract value of the second Pioneer contract to the plaintiff company.
found in favor of the defendant
regarding this dispute.
The plaintiff addresses this issue
brief to this Court. Because the Court could
not analyze the issue more clearly than the plaintiff
reprints herein the plaintiffs
"The Department of Labor made two critical errors in this case when the hearing officer based the commission amount on the face value of the sale to Pioneer. First, in using the face value ($ 1.975 million) rather than the net new contract value ($329,117. 65), it failed to consider and apply the express terms of the contract, Autonomy's Compensation Plan for commissioned sales representatives. The Compensation Plan limited Ms. Briody's commissions to revenue "recognizable" under U.S GAAP accounting rules and based on net "new contract value." Second, the Department of Labor ignored the language of the September 2010 contract between Autonomy and Pioneer Investments ("Pioneer Two"), on which Ms. Briody's commission claim was based. Pioneer Two expressly cancelled a 2009 contract with the same customer for the same services ("Pioneer One" ) and forgave approximately $ 1.2 million in payments due under the earlier contract. As a result, the corn'pany was required, as a matter of accounting rules, to deduct from its books the value of the unpaid original contract. Consistent witih both the language of the Compensation Plan and established company and industry practice, Autonomy properly calculated Ms. Briody's commission using the nef value of the new contract".
Essentially the defendant
asserts two reasons for which she is entitled to be paid
the sum which was awarded to her for lost wages by the Labor Commissioner,
$97,806.62. First, she does not believe that there is any connection between the two
contracts which she negotiated with Pioneer, the first being for the benefit of her
employer Computer Associates, Inc., and the second being for the benefit of her second
employer, the plaintiff.
At the hearing held before this Court on November
21, 2012, the
be allowed to
counsel as to why the defendant
retain the full commission
that she was paid for her obtaining the first Pioneer contract
when in fact Pioneer only paid a fraction of what was due on that contract before
2010. Defense counsel conceded that
as Computer Associates,
Inc. did not receive the full value of the first Pioneer contract, although
was paid as
Associates, Inc. did receive the
value of the multi-year
contract, perhaps the defendant did not earn the
commission she received. However
of the defendant's
be up Computer Associates,
Inc. to demand,
Yet as the plaintiff pointed out at the hearing, because
assets and liabilities of Computer
from the defendant
paid to her
to receive any
as a result of the
first sale to Pioneer. The Court finds that logic hard to dispute.
6 of the Labor Department decision the
"Although the testimony shows that the Pioneer I project was tied in with Pioneer II when the final costs were calculated. This does not appear to be the case. The Wage Claim is valid in the amount
of $ 97,806,62."
to concede that the testimony showed a connection between the
two Pioneer contracts, the Labor Commissioner
so find. There
is no evidentiary
basis for that conclusion.
mean that the defendant
If the Labor Commissioner's
decision is to stand then
received double commissions from Computer Associates, Inc.
and the plaintiff for the amount that she brought in from Pioneer Investments.
no legal or equitable
basis for her entitlement
to the amount
by the Labor
second argument as to why she should be paid a
on the gross amount of the second Pioneer contract was the fact that as she worked on
securing that contract between June and November
of 2010 she continued to receive
assurances from co-employees and her respective bosses at the plaintiff company that
she would be paid a full commission on any new contract that she was able to negotiate
that were true, and the transcript suggests that the evidence of
that fact was more general
than specific, such a promise would
be contrary to the
plan that she had in writing with her employer.
points out, she did not take on the responsibility
obtaining a second contract with Pioneer on
a strict commission basis. Instead she was
a salaried employee
$ 150,000.00 a year and she was directed
employer to work on the Pioneer contract during the six months that she was employed
by the plaintiff.
to the amount
received as her annual salary.
defense to this argument
is that had
she known that she would be receiving,
her mind, a reduced commission for any new
Pioneer, she would have elected to work on other projects
No specifics were provided
have earned her a higher commission.
respect to that allegation.
However, as her employer the plaintiff had the right to direct
the defendant to pursue any contract which the employer deemed worth pursuing.
there was no reliance to her detriment regarding the defendant's
decision to work on the
Pioneer contract as opposed to some other contract that may have been available.
Upon review of all of the testimony
given at the Labor Department
exhibits presented to the Labor Department,
the pleadings filed
appeal, and the oral argument
made by counsel
support of their respective positions
before this Court,
and rules that the Labor Commissioner
made an error of both
fact and law
deciding that the defendant
her burden of proving she was
entitled to a commission
of $ 97,806.62 as a result of the procurement
of the second The Court finds
Pioneer contract. Accordingly that decision is set aside and vacated.
as set forth
Affidavit, the defendant
was paid the appropriate commission for this endeavor.
On the subject of liquidated
following in his decision:
damages, the Labor Commissioner
"It is also found that the employer went out of their way to take credit for the sale and then to cut the profit down. To do so shows that the employer performed a willful act to reduce the commission owed to the claimant. The only reason to do this was to increase profits and show better numbers on the quarterly report. The finding is for liquidated damages in the amount of
A review of the record before this Court suggests
fact the plaintiff did not
on the second
pay to the defendant the amount that was due for a commission
Pioneer contract. Accordingly, the Court finds that there is a factual basis for an award
of liquidated damages. However the amount of those liquidated damages is reduced to
the amount which the Court has concluded was due the plaintiff as a commission, to wit,
The defendant has requested an Order from this Court for attorney fees
defend these proceedings.
That request is denied given the fact that
large part the
The parties are instructed that the within Order is applicable only to the defendant's
wage claim. The Order of the Court is made
strict reliance upon the law as set out
RSA 275, our employment
before the Labor Commissioner
that the defendant
that she was wrongfully
because the plaintiff did not wish to pay her the commission which she felt she was due
and also because of the timing of her departure
from the company. The plaintiff claims
was as a result of negative E-mails the defendant
has a wrongful
sent. To the extent
that the defendant
that must be filed as a that none of the
Should she elect to do so, the Court determines
the within Order would be applicable
to any such claim as the
Court has not considered
process on the limited issue presented
case, the defendant's
statutory wage claim.
Kenneth R. McHu@ Presiding Justice
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