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JUDICIAL BRANCH
SUPERIOR COURT
Rockingham Superior Court Rockingham Cty Courthouse/PO Kingston NH 03848-1258
Box 1258
NOTICE OF DECISION
Peter G. Callaghan, ESQ Preti Flaherty Beliveau & Pachios PLLP 57 North Ilain Street
PO Box 1318 Concord NH 03302-1318
218-2012-CV-01056
Enclosed please find a copy of the court's order of November 30, 2012 relative to:
Final Order
Raymond W. Taylor
Clerk of Court
Kristin M. Yasenka,
ESQ
NH
J B-2503-S (07/01/2011)
ROCKINGHAM COUNTY
2012-CV-1056
V VIRGINIA BRIODY
SUPERIOR COURT
FINAL ORDER
Department
of
the plaintiff,
conducted
the employer,
objects.
A hearings
of Labor
The plaintiff's
In pertinent
part that
decision is
However the
The appealing
authority
of the
Superior Court
in
it
Demers Aaencv v Widnev 155 N.H. 658 (2007) for the proposition that appeals of Labor
Department
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
cases of
Labor Department
and uphold
the findings
evidential
if
or tainted
factual
by error of law.
Thus the
position
is that
it
the
Court
errors
made
by the
Labor
Commissioner
then
Labor Department
This Court
decision.
has always
Yet
in
looked
upon
its authority
it
to review
Labor Department
decisions narrowly.
simply misunderstood
set
it
this
support.
The Court does not lightly reverse a decision made by the Labor Commissioner.
This is particularly
literary six inches
true in a
case
and a review of
and the Court
all
of documents.
of
as
Department.
This Court held a hearing on the plaintiffs appeal on November
hearing the plaintiff argued that the most important
21, 2012.
At that
document
submitted
to the Labor
Department
April
13, 2012.
-the plaintiff.
resides
in
Nonetheless
the Court has examined the specifics of the Affidavit and also
and it does find that Mr. Chamberlain,
an accountant
for the
under the employer's written plan for the work she did.
Independently,
on examination
and
Department
regarding
hearing
transcript,
dispute
the pertinent
Both agreed
worked
sales company
as Computer
June 1, 2010. She was employed by the plaintiff from June 8, 2010
While working
known
November
for Computer
Associates,
Investments
a contract to an entity
was multi-year contract.
with
as Pioneer
September of 2009.
continuing
Computer Associates,
its
obligations
pendency.
fact
in
mid-November
of 2009.
The commission
amount
admission
"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?"
A. Correct.
In
negotiated
with
Pioneer on behalf of
It ran for
Computer
Associates,
in
approximately
plaintiff,
six months only. When Computer Associates, Inc. was bought out by the
the defendant
was instructed
higher cost. The defendant did her job well and her efforts resulted in Pioneer signing a
in
Associates,
defendant
from having
to pay the balance due on the first contract that Pioneer signed with
Computer
1.2
million
dollars.
received a
full
commission)
was deducted
The defendant
commission
of the
due her from the second Pioneer sale was based upon the total amount of
in
that second contract, to wit, $ 1.975 million dollars. Relying on the formula set forth
her
compensation
plan,
the
defendant
claimed
a commission
of $ 97,806.62.
Conversely,
to be $ 16,721.91 based
on the new contract value of the second Pioneer contract to the plaintiff company.
The
Labor Commissioner
it
conclusion:
"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".
parties'ritten
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
initial
employer Computer Associates, Inc., and the second being for the benefit of her second
Court inquired
of defendant's
should
that she was paid for her obtaining the first Pioneer contract
it
when in fact Pioneer only paid a fraction of what was due on that contract before
was
cancelled
in
inasmuch
as Computer Associates,
the defendant
Inc. did not receive the full value of the first Pioneer contract, although
was paid as
if
Computer
full
defense
counsel
argued
that
any
remission
of any
of the defendant's
not the
all
commission
plaintiff.
payment
should
be up Computer Associates,
Inc. to demand,
it
acquired
of the
Associates,
Inc.,
it
was entitled
paid to her
to receive any
regarding
the commission
as a result of the
first sale to Pioneer. The Court finds that logic hard to dispute.
On page
following appears:
"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."
While appearing
so find. There
is no evidentiary
it would
and the plaintiff for the amount that she brought in from Pioneer Investments.
no legal or equitable
There is
to the amount
found
by the Labor
Commissioner.
The defendant's
full
commission
on the gross amount of the second Pioneer contract was the fact that as she worked on
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
with
Pioneer.
Even
if
that were true, and the transcript suggests that the evidence of
be contrary to the
compensation
Moreover
as the
plaintiff
of
a salaried employee
receiving
employer to work on the Pioneer contract during the six months that she was employed
by the plaintiff.
Any commission
earned would
be
in addition
to the amount
she
The defendant's
in
is that had
the defendant to pursue any contract which the employer deemed worth pursuing.
there was no reliance to her detriment regarding the defendant's
Thus
Pioneer contract as opposed to some other contract that may have been available.
Upon review of all of the testimony
hearing,
in
the
voluminous
the within
made by counsel
in
it finds
in
sustained
entitled to a commission
her compensation
plan
formula
as set forth
in
the Chamberlain
reported the
"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
$97,806.62."
A review of the record before this Court suggests
promptly
that
in
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
$ 16,721.91.
The defendant has requested an Order from this Court for attorney fees
defend these proceedings.
plaintiff
in having
to
in
has prevailed
in
this
case.
The parties are instructed that the within Order is applicable only to the defendant's
wage claim. The Order of the Court is made
in
in
statute.
believed
The evidence
suggests
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
the termination
complaint,
separate action.
findings
contained
in
the defendant's
allegations
of wrongful
in this
decision making
So Ordered.
1V Date
k~~
EM 2/Q,
Kenneth R. McHu@ Presiding Justice