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          NXEGEN, LLC v. JOHN CARBONE
                   (AC 35954)
                  Lavine, Beach and Borden, Js.
    Argued October 22, 2014—officially released February 3, 2015

   (Appeal from Superior Court, judicial district of
                Hartford, Miller, J.)
  James G. Green, Jr., with whom, on the brief, was
David W. Case, for the appellant (defendant).
  Alexander J. Trembicki, for the appellee (plaintiff).
                           Opinion

   BEACH, J. The defendant, John Carbone, appeals
from the judgment of the trial court granting the applica-
tion to confirm the arbitration award in favor of the
plaintiff, Nxegen, LLC. The defendant claims that the
trial court erred in determining that the arbitrator did
not manifestly disregard the law in finding that the
defendant maliciously misappropriated trade secrets
and consequently awarding punitive damages to the
plaintiff. We disagree and affirm the judgment of the
trial court.
   The following facts were found by the arbitrator. The
defendant is the former chief operating officer of the
plaintiff.1 In 2001, the officers of the plaintiff, including
the defendant, executed employment contracts and
agreements with respect to intellectual property rights.
The defendant’s employment contract was for a term
of one year and was automatically renewed for an addi-
tional year if neither party gave sixty days notice of
intent to terminate the contract. The defendant held
the titles of secretary and vice president of operations;
he assumed the role of chief operating officer. In Febru-
ary, 2005, two businesses owned by Lynn Sutcliffe
agreed to work with the plaintiff for the mutual benefit
of all three companies. Sutcliffe became chief executive
officer of each of the three companies. The defendant
did not get along with Sutcliffe, to whom he technically
reported, and he was unhappy with the direction in
which the plaintiff’s business was going. In 2006, the
defendant renegotiated his employment contract. In
exchange for an increase in his compensation, he
agreed to stay with the plaintiff until May 24, 2008.
   Meanwhile, in 2006, the plaintiff was awarded a
$737,203 contract by the Board of Education of the City
of Bridgeport (board) for phase I of a project encom-
passing energy efficiency upgrades in some of the
board’s facilities. After completion of phase I, the board
asked the plaintiff to prepare a proposal for phase II
of the project, which contemplated energy efficiency
modifications for thirteen additional school facilities.
The work required by phase II involved the use of more
complex systems than those with which the plaintiff
had previously worked. The defendant was in charge
of the plaintiff’s proposal for phase II, and he presented
it to the board in July, 2007. The board approved the
proposal at a meeting on August 27, 2007, and author-
ized the superintendent of schools to enter into a con-
tract with the plaintiff for $2,304,000.
  Two days later, at the plaintiff’s regular sales meeting,
the defendant failed to disclose fully the circumstances
of the $2,304,000 project and, instead, reported that the
phase II project had been held up because of personnel
turnover. On September 6, 2007, the defendant
announced his intention to resign from the plaintiff,
and he submitted his resignation on September 10, 2007,
effective at the end of the month.
   The arbitrator found that on September 14, 2007,
the defendant provided the board’s purchasing director
‘‘with his business card on which he deleted his . . .
office phone number [at the plaintiff] and replaced it
with his personal cell phone number.’’ The defendant
then met with the president of the plaintiff on Septem-
ber 27, 2007, to discuss the projects he had been work-
ing on. The defendant did not disclose to any of his
supervisors at the plaintiff the size, nature, or dollar
value of the phase II project proposal, or the fact that
it had been approved. The defendant had expressed a
willingness to consult for the plaintiff after he resigned,
but the parties were unable to come to an agreement
on a consulting arrangement, and those discussions
concluded in November, 2007.
   On December 12, 2007, the defendant formed his own
company, Power Point Energy, LLC, which he owned
solely. The defendant worked to secure the phase II
contract for his new company. He secured utility incen-
tives for the project in January, 2008. On April 9, 2008,
the superintendent of schools entered into a contract
to complete phase II with the defendant’s company
rather than with the plaintiff.2 The defendant’s company
completed the project and was paid for it.
   After the defendant resigned, the plaintiff discovered
various breaches of his fiduciary duties; one such
breach occurred in the context of his involvement with
the phase II contract.3 The plaintiff sought arbitration,
per the defendant’s employment contract, on November
20, 2009. Following the arbitration hearing, the parties
submitted memoranda and reply memoranda, and the
arbitrator issued an interim award on April 6, 2012. The
arbitrator found that the defendant had wilfully and
maliciously misappropriated the plaintiff’s trade secrets
in violation of the Connecticut Uniform Trade Secrets
Act (CUTSA), General Statutes § 35-50 et seq., by using
work product developed while he was employed by the
plaintiff to obtain the contract for his new company
and that the defendant had breached his employment
contract by resigning before his two year term was
complete. The arbitrator also held that the defendant’s
actions clearly violated the Connecticut Unfair Trade
Practices Act (CUTPA), General Statutes § 42-110a et
seq., but dismissed the claim as duplicative because
no separate damages were recoverable.4 Finally, the
arbitrator found that the defendant had breached his
fiduciary duty to the plaintiff by not disclosing the
approval of the phase II contract to his superiors and
for various unauthorized uses of funds while he was
an employee.
  The arbitrator awarded the plaintiff compensatory
damages and held a second hearing to determine the
amount of punitive damages, interest, costs, and attor-
ney’s fees. The arbitrator subsequently issued the final
award.5 The arbitrator declined to reconsider his finding
that the defendant’s misappropriation of trade secrets
was malicious, and awarded punitive damages6 in the
amount of $340,156. The arbitrator awarded a total of
$1,031,356 in damages for the defendant’s violation of
CUTSA.7
   The plaintiff applied to the trial court to confirm
the arbitration award. The defendant objected to the
application and filed an application to vacate the award
in part. Specifically, the defendant objected to the puni-
tive damages award, claiming that it was entered in
‘‘manifest disregard of the law.’’ The plaintiff objected
to the defendant’s motion to vacate the award. The
court granted the motion to confirm the arbitration
award. This appeal followed.
  The defendant claims here, as he did in the trial court,
that the arbitrator awarded punitive damages in mani-
fest disregard of the law. The defendant argues that
the arbitrator understood that the standard to award
punitive damages under CUTSA required the actions of
the defendant to be both wilful and malicious, but
ignored precedent as to what constitutes malice and
decided the case under a different definition. We
disagree.
   ‘‘Our analysis is guided by well established principles
regarding a party’s application to vacate a consensual
arbitration award resulting from an unrestricted sub-
mission. Judicial review of arbitral decisions is nar-
rowly confined. . . . When the parties agree to
arbitration and establish the authority of the arbitrator
through the terms of their submission, the extent of
our judicial review of the award is delineated by the
scope of the parties’ agreement. . . . When the scope
of the submission is unrestricted, the resulting award
is not subject to de novo review even for errors of law
so long as the award conforms to the submission. . . .
Because we favor arbitration as a means of settling
private disputes, we undertake judicial review of arbi-
tration awards in a manner designed to minimize inter-
ference with an efficient and economical system of
alternative dispute resolution. . . .
  ‘‘Where the submission does not otherwise state, the
arbitrators are empowered to decide factual and legal
questions and an award cannot be vacated on the
grounds that . . . the interpretation of the agreement
by the arbitrators was erroneous. Courts will not review
the evidence nor, where the submission is unrestricted,
will they review the arbitrators’ decision of the legal
questions involved. . . . In other words, [u]nder an
unrestricted submission, the arbitrators’ decision is
considered final and binding; thus the courts will not
review the evidence considered by the arbitrators nor
will they review the award for errors of law or fact. . . .
   ‘‘Even in the case of an unrestricted submission, we
have . . . recognized three grounds for vacating an
award: (1) the award rules on the constitutionality of
a statute . . . (2) the award violates clear public policy
. . . [and] (3) the award contravenes one or more of
the statutory proscriptions of [General Statutes] § 52-
418.’’ (Internal quotation marks omitted.) Economos v.
Liljedahl Bros., Inc., 279 Conn. 300, 305–306, 901 A.2d
1198 (2006).
   ‘‘[A]n award that manifests an egregious or patently
irrational application of the law is an award that should
be set aside pursuant to § 52-418 (a) (4) because the
arbitrator has exceeded [his] powers or so imperfectly
executed them that a mutual, final and definite award
upon the subject matter submitted was not made. We
emphasize, however, that the manifest disregard of the
law ground for vacating an arbitration award is narrow
and should be reserved for circumstances of an arbitra-
tor’s extraordinary lack of fidelity to established legal
principles.’’ (Internal quotation marks omitted.) Gar-
rity v. McCaskey, 223 Conn. 1, 10, 612 A.2d 742 (1992).
‘‘The test [announced in Garrity] consists of the follow-
ing three elements, all of which must be satisfied in
order for a court to vacate an arbitration award on the
ground that the arbitration panel manifestly disregarded
the law: (1) the error was obvious and capable of being
readily and instantly perceived by the average person
qualified to serve as an arbitrator; (2) the arbitration
panel appreciated the existence of a clearly governing
legal principle but decided to ignore it; and (3) the
governing law alleged to have been ignored by the arbi-
tration panel is well defined, explicit, and clearly appli-
cable.’’ Saturn Construction Co. v. Premier Roofing
Co., 238 Conn. 293, 305, 680 A.2d 1274 (1996).
   In this case, the first two prongs of the Garrity test
have not been satisfied. In the final award, the arbitrator
properly acknowledged that the law required findings
of malice and wilfulness if punitive damages were to
be awarded. He set forth the reasons he found malice
in the defendant’s conduct: ‘‘[The defendant] is correct
that the statute requires a finding of both a ‘wilful’ and
a ‘malicious’ violation. Although there was not the type
of evidence showing malice as in Elm City Cheese [Co.]
v. Federico, 251 Conn. 59, [752 A.2d 1037] (1999) . . .
there was sufficient evidence to warrant the finding of
malice in this case. [The defendant] did not like . . .
Sutcliffe’s management style or vision for [the plaintiff].
Based on [the defendant’s] numerous violations of his
fiduciary duty to [the plaintiff], the finding is warranted
[in] that his conduct in stealing [the plaintiff’s] trade
secrets was motivated by [the defendant’s] ill will
towards . . . Sutcliffe and his desire to harm [the
plaintiff].’’ The court properly found, as to the first and
second prongs of the Garrity test, that the defendant’s
contention that the arbitrator consciously ignored the
law was not supported by the record, nor was the defen-
dant’s contention that the arbitrator committed an obvi-
ous error.
   The defendant argues in his brief to this court that
the second and third prongs of the Garrity test were
satisfied because the law is clear and the arbitrator
appreciated the law but decided to ignore it. Regardless
of whether the law is clear and well-defined, there is
nothing in the record to compel the conclusion that
the arbitrator consciously disregarded the law (second
prong) or that any alleged error was obvious (first
prong). The defendant argues that the arbitrator’s refer-
ence to Elm City Cheese Co., and his recognition that
Elm City Cheese Co. and the present case do not present
identical situations, lead to the conclusion that the arbi-
trator consciously disregarded the law in awarding
punitive damages. As did the trial court, we consider
the arbitrator’s findings to suggest only that the factual
situation in Elm City Cheese Co. was different from the
present case, and not that the arbitrator applied an
unauthorized standard in finding malice. Whether the
arbitrator correctly found malice is not for us to decide.
See Economos v. Liljedahl Bros., Inc., supra, 279 Conn.
305. We decide only that the arbitrator’s finding of mali-
cious misappropriation and award of punitive damages
in this case does not ‘‘so egregiously depart from estab-
lished law that [it] border[s] on the irrational [such that
judicial approval thereof] would undermine society’s
confidence in the legitimacy of the arbitration process.’’
Garrity v. McCaskey, supra, 223 Conn. 10. The defen-
dant failed to prove that the Garrity test was satisfied
because there was no obvious error, and the record did
not show that the arbitrator deliberately ignored the
law. Therefore, there is no error in the trial court’s
conclusion that the arbitrator did not run afoul of § 52-
418 (a) (4).
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
    The defendant was one of four founding members of Energy Solutions,
LLC, which was the predecessor to the plaintiff. In 1999, Energy Solutions,
LLC, was reorganized as Nxegen, Inc., following an investment of capital
by and the involvement of new investors. In January, 2005, the relevant
assets of Nxegen, Inc., were transferred to the plaintiff. For simplicity, we
refer to these entities collectively as the plaintiff.
  2
    The evidence was unclear how the defendant managed to obtain the
contract for his new company because the defendant’s company never
obtained a ‘‘qualification to bid,’’ never bid on the work, and the board never
authorized the execution of the contract with anyone other than the plaintiff.
  3
    The president of the plaintiff learned of the defendant’s involvement in
the phase II project when an employee of the board called to complain
about the condition of its premises.
  4
    The arbitrator dismissed five of the eight counts. The arbitrator found
the plaintiff’s claim that the defendant breached his employment agreement
by using the plaintiff’s proprietary information was duplicative of the CUTSA
claim and therefore dismissed it. The arbitrator dismissed the other four
claims because he found that the request for an injunction prohibiting the
defendant from breaching the employment agreement was moot, that there
was insufficient evidence to sustain claims of tortious interference with the
plaintiff’s contractual or business relationships, and that the noncompete
clause in the parties’ agreement was unenforceable.
   5
     The arbitrator also issued an amended award to correct a computational
error as to the amount of fees and costs.
   6
     General Statutes § 35-53 (b) provides in relevant part: ‘‘[I]f the court
finds wilful and malicious misappropriation, the court may award punitive
damages . . . .’’
   7
     In the final, amended award, the arbitrator awarded compensatory dam-
ages in the amounts of $691,200 for the breach of CUTSA, $36,850 for the
breaches of fiduciary duty, and $129,211.44 for the breach of contract, as
well as an award of attorney’s fees, expert witness fees, and costs in the
amount of $204,324.13 pursuant to the breach of contract claim.
