ROSEMARY ANNUNZIATO, individually and
`derivatively on behalf of WESTMORE FUEL
`CO., INC.,
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`Plaintiff.
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`DOMENICK D. BOLOGNA, RICHARD
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`BOLOGNA and WESTMORE FUEL CO., INC.
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`Defendants
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`SUPERIOR COURT
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`JUDICIAL DISTRICT of
`STAMFORD/NORWALK
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`AT STAMFORD
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`AUGUST 19, 2024
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`MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’
`MOTION TO STRIKE AND TO DISMISS
`Pursuant to Connecticut Practice Book §§ 10-40 and 10-31, Rosemary Annunziato
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`(“Plaintiff” or “Annunziato”) objects to the Motion to Strike and Dismiss filed by Defendants Dick
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`Bologna and Rick Bologna on July 19, 2024, seeking to strike Counts Three, Four, and Five of the
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`Complaint, and dismiss Counts One, Two, Three, and Seven of Plaintiff’s Complaint (the
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`“Motion”). As set forth more fully below, the Court should deny the Defendants’ Motion in its
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`entirety because the Complaint states legally cognizable causes of action for violation of the
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`Connecticut Unfair Trade Practice Act, tortious interference with expected inheritance, and
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`derivative claims on behalf of Westmore Fuel Corporation, Inc. (“Westmore Fuel” or the
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`“Company”).
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`I.
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`RELEVANT BACKGROUND
`Founded in 1959 by siblings Domenick and Patsy Bologna, Westmore Fuel is a family-
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`owned heating oil company located in Greenwich, Connecticut. Complaint (“Compl.”) ¶¶ 6-7. The
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`Company is one of several related entities owned and operated by the Bologna Family. Compl. ¶
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`8. These entities include Westchester Oil, a New York corporation that sells oil wholesale, and
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`upwards of ten real estate holding LLCs with properties located in Connecticut and New York (the
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`“Related Entities”). Compl. ¶¶ 8-9.
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`1
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`DOCKET NO.: FST-CV24-6066928-S
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`The Bologna family tree is central to this dispute. Siblings Domenick and Patsy Bologna
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`founded Westmore Fuel. Compl. ¶ 7. Domenick Bologna is the father of Plaintiff Rosemary
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`Annunziato. Compl. ¶ 11. Defendant Dick Bologna is the son of Patsy Bologna, and Defendant
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`Rick Bologna is the son of Defendant Dick Bologna. Compl. ¶ 11. For nearly 70 years, Westmore
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`Fuel and the Related Entities operated successfully with Domenick Bologna at the helm. Compl.
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`¶ 10. He maintained his ownership interest in, and active involvement in the management of,
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`Westmore Fuel until his death in 2019. Compl. ¶ 11. At the time of Domenick Bologna’s death,
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`the Company was owned as follows: Domenick Bologna (30.4%); Defendant Dick Bologna
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`(59.96%); and Defendant Rick Bologna (10%). Compl. ¶ 12. Pursuant to the terms of Domenick
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`Bologna’s will, his shares in the Company were to be divided equally between his daughters,
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`Rosemary Annunziato and Maria Santora, and were ultimately transferred to Annunziato and
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`Santora on August 9, 2023. Compl. ¶ 15-16. In the period between Domenick Bologna’s death
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`and the transfer of his shares in Westmore Fuel to his daughters, the shares were held by the Estate
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`of Domenick Bologna (the “Estate”). Compl. ¶ 14.
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`Between the time of Domenick Bologna’s passing and Annunziato’s receipt of the shares,
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`however, Defendants embarked upon a secretive campaign designed to loot Westmore Fuel assets
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`for their own benefit, thereby artificially devaluing Annunziato’s ownership interest, and to freeze
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`Annunziato out of the management of the family business. Since 2019, Dick and Rick Bologna
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`have exercised sole control over the bank accounts, finances, operations, books and records of the
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`Company. Compl. ¶ 18. Rather than managing the Company’s finances in the best interest of its
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`shareholders, Defendants have abused their positions of trust and authority to exclude Annunziato
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`from the bank accounts, finances, operations, books and records of the Company. Compl. ¶ 20.
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`Indeed, Defendants have exercised complete dominion over Westmore Fuel and the Related
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`Entities and have operated each of the entities primarily for their own benefit. Compl. ¶ 24. Their
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`conduct in this regard has included extensive commingling of assets between entities, including
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`transactions made for the purpose of artificially devaluing Westmore Fuel (thereby attempting to
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`devalue the minority shareholders’ interests therein). Compl. ¶ 24.
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`In addition to improper commingling and use of Company assets to fund the Related
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`Entities, Defendants have engaged in extensive self-dealing. Compl. ¶ 25. For example, in the
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`years 2020 and 2021, Defendants Dick and Rick Bologna paid themselves exorbitant and
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`unprecedented “wages” from the Company collectively totaling in the seven figures for each year.
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`Compl. ¶ 26. Of those amounts, only a fraction represented Defendants’ salaries; the remainder
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`consisted of excessive, unearned, and unjustified “bonuses” taken by Defendants pro rata to their
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`respective interests in the Company. Compl. ¶ 26. The Estate (which owned Domenick Bologna’s
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`shares at the time) received no such bonuses. Compl. ¶ 27. This is because the outsized “bonuses”
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`were designed to mask the Company’s true earnings to avoid paying dividends or making
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`distributions to its minority shareholders. Compl. ¶ 28. Further advancing their campaign to
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`deprive the minority shareholders of their interests, Defendants wasted Company assets on
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`improper personal expenditures. Compl. ¶ 33. For example:
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` Defendants caused Westmore Fuel to pay tax preparation fees for other entities owned by
`Defendant Dick Bologna in which Westmore Fuel has no interest and from which
`Westmore Fuel receives no benefit. Compl. ¶ 34.
` Defendants caused Westmore Fuel to pay legal fees for the benefit of Defendant Dick
`Bologna personally, and not Westmore Fuel. Compl. ¶ 35.
` Defendants caused Westmore Fuel to make excessive payments to landscaping and other
`contractors,
`including for residence-related maintenance and repairs,
`that were
`unexplained, unjustified, and wasteful. Compl. ¶ 37.
`Aware of their own wrongdoing, Defendants steadfastly concealed their financial
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`misappropriation from the Estate and from Plaintiff. Defendants’ conduct goes beyond mere
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`mismanagement—it constitutes improper looting and waste of corporate assets for Defendants’
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`personal gain.
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`II.
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`LEGAL STANDARDS
`Defendants’ motion seeks to strike Counts Three, Four, and Five of the Complaint, and to
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`dismiss Counts One, Two, Three, and Seven of the Complaint. Thus, the standards applicable to
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`motions to strike and motions to dismiss are each relevant here.
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`“The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations
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`of any complaint . . . to state a claim upon which relief can be granted.” Fort Trumbull
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`Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003) (internal citation and quotations omitted).
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`See also Conn. Practice Book § 10-39 (“A motion to strike shall be used whenever any party wishes
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`to contest . . . the legal sufficiency of the . . . complaint.”). “If any facts provable under the express
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`and implied allegations in the plaintiff’s complaint support a cause of action . . . the complaint is
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`not vulnerable to a motion to strike.” Bouchard v. People's Bank, 219 Conn. 465, 471 (1991). The
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`adjudication of a motion to strike “requires no factual findings by the trial court.” Doe v. Yale
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`University, 252 Conn. 641, 667 (2000).
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`“[I]t is fundamental that in determining the sufficiency of the complaint challenged by a
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`defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the
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`allegations are taken as admitted.” Coe v. Board of Education, 301 Conn. 112, 116–17 (2011)
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`(internal citation and quotations omitted). “[P]leadings must be construed broadly and
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`realistically, rather than narrowly and technically.” Connecticut Coalition for Justice in Education
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`Funding, Inc. v. Rell, 295 Conn. 240, 253 (2010) (internal citation and quotations omitted). The
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`Court must “construe the complaint in the manner most favorable to sustaining its legal
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`sufficiency.” New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747 (2012) (internal
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`citation and quotations omitted). “If facts provable in the complaint would support a cause of
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`action, the motion to strike must be denied.” Fort Trumbull Conservancy, LLC, 262 Conn. at 498.
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`“As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried
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`and do not surprise or prejudice the opposing party, [the court] will not conclude that the complaint
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`is insufficient.” J.D.C. Enterprises, Inc. v. Sarjac Partners, LLC, 164 Conn. App. 508, 512 (2016)
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`(internal citation and quotations omitted).
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`A motion to dismiss, on the other hand, tests “whether, on the face of the record, the court
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`is without jurisdiction.” MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626 (2013). “A court
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`deciding a motion to dismiss must determine not the merits of the claim or even its legal
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`sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide.”
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`(Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.
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`App. 730, 740–41 (2014). “[I]n determining whether a court has subject matter jurisdiction, every
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`presumption favoring jurisdiction should be indulged.” (Internal quotation marks omitted.)
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`Conboy v. State, 292 Conn. 642, 650 (2009).
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`III. ARGUMENT
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`A. Defendants’ Conduct, as Alleged in the Complaint, Goes Beyond a Mere
`Intracorporate Dispute and is therefore Subject to CUTPA.
`Defendants contend that Annunziato’s CUTPA claim describes nothing more than an
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`“intracorporate dispute” that is beyond the scope of CUTPA. While the general premise that
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`“purely intracorporate conflicts do not constitute CUTPA violations” is accurate, the allegations of
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`the Complaint go far beyond a simple governance dispute. The Complaint alleges that Defendants
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`engaged in a months-long looting scheme designed to benefit themselves and other entities in
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`which they hold ownership interests, to the detriment of Westmore Fuel. Such allegations “go well
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`beyond governance of the [corporation]”; “they place [defendants] in direct competition with the
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`interests of the [corporation],” and are plainly sufficient to survive a motion to strike. Spector v.
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`Konover, 57 Conn. App. 121, 133, cert. denied, 254 Conn. 913 (2000).
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`General Statutes § 42-110b(a) prohibits “unfair methods of competition and unfair or
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`deceptive acts or practice in the conduct of any trade or commerce.” C.G.S. § 42-110b(a).
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`Connecticut courts follow the so-called “cigarette rule” in determining whether a practice is unfair,
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`and therefore actionable under CUTPA. The cigarette rule considers:
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`(1) Whether the practice, without necessarily having been previously considered
`unlawful, offends public policy as it has been established by statutes, the common
`law, or otherwise—whether, 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; [and] (3) whether it
`causes substantial injury to consumers, competitors or other businessmen.
`Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 105-06 (1992). Because CUTPA’s
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`“coverage is broad and its purpose remedial” id. at 114, “all three criteria do not need to be satisfied
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`in order to support a finder of unfairness,” id. at 105-06. Rather, “[a] practice may be unfair
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`because of the degree to which it meets one of the criteria or because to a lesser extent it meets all
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`three.” Id.
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`Defendants do not contest that the Complaint satisfies the cigarette rule. Instead,
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`Defendants rely on Metcoff v. Lebovics, 123 Conn. App. 512 (2010) to argue that Defendants’
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`conduct does not implicate CUTPA because the dispute is intracorporate in nature. Defendants’
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`analysis is flawed. Defendants pay lip service to the “narrow exception” articulated in Metcoff—
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`that CUTPA applies to “internal corporate actions that also have the effect of usurping the
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`customers, employees or assets of one business in favor of another business”—and ignore the
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`allegations of the Complaint that place Annunziato’s CUTPA claim squarely within this exception.
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`Specifically:
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` ¶ 8: The Company is one of several related entities owned and operated by the
`Bologna family. These entities
`include Westchester Oil Terminals, Inc.
`(“Westchester Oil”), a New York corporation that rents storage space for oil and
`sells oil wholesale.
` ¶ 9: In addition to Westmore Fuel and Westchester Oil, the Bologna family created
`upwards of ten real estate holding LLCs with real estate interests located in both
`Connecticut and New York (together with Westchester Oil, the “Related Entities”).
` ¶ 24: Since the time of Domenick Bologna’s passing, Defendants have exercised
`complete dominion over Westmore Fuel and the Related Entities and have operated
`each of the entities primarily for their own benefit. Their conduct in this regard has
`included extensive commingling of asses between the entities, including, upon
`information and belief, transactions made for the purpose of artificially devaluing
`Westmore Fuel (thereby attempting to devalue the minority shareholders’ interests
`therein).
` ¶ 34: In 2022, Defendants caused Westmore Fuel to pay tax preparation fees for
`other entities owned by Defendant Dick Bologna in which Westmore Fuel has no
`interest and from which Westmore receives no benefit.
`Indeed, Defendants ignore altogether the extensive line of cases recognizing that
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`“[a]lthough CUTPA does not apply to purely intracorporate conflicts…CUTPA does apply where
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`one’s actions go well beyond governance of the [corporation], and [place] him in direct
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`competition with the interests of the [corporation].” Spector, 57 Conn. App. at 133.
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`Spector v. Konover is instructive. There, Spector formed a general partnership with
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`Konover and two other parties for the purpose of building, and subsequently operating and
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`managing, a shopping plaza. Konover was responsible for day-to-day management of the property
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`and, in that capacity, provided monthly finance reports to each of the partners. Plaintiff sued
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`Konover alleging, among other things, that Konover’s practice of commingling the partnership’s
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`funds with funds from other Konover entities, using partnership monies to cover expenses incurred
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`by other Konover entities, and delaying disbursements to the partnership’s partners to cover those
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`expenses violated CUTPA. The trial court rendered judgment in favor of Konover. Plaintiff
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`appealed. On appeal, Konover argued that the dispute was purely intracorporate, and thus outside
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`the scope of CUTPA. The Connecticut Appellate Court disagreed and reversed the trial court,
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`reasoning:
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`Here, the defendants diverted partnership funds to benefit other Konover owned
`properties. The defendants delayed the disbursement of Tri Town profits to the
`plaintiff so that these funds could be used to finance Konover’s other entities.
`Those actions clearly placed the defendants in direct competition with the interests
`of the Tri Town partnership and are, therefore, a violation of CUTPA.
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`Id.
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`In the present case, Defendants’ conduct—namely, the looting of Company assets for their
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`own benefit and to the harm of the Company, the diversion of Company assets to benefit
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`themselves and family members, and the diversion of “assets and resources of [Westmore] to one
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`or more business entities or personal causes in which they held an interest,” Jagodzinski v.
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`Jagodzinski, No. CV166028734, 2017 WL 4427031, at *4 (Conn. Super. Ct. Aug. 28, 2017)1—
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`undeniably places them in “direct competition with the interests of the [corporation],” Spector, 37
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`Conn. App. at 133. See also Olmstead v. DeJoseph, No. X03-CV-19-6145621-S, 2022 WL
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`1051231, at *8 (Conn. Super. Ct. Feb. 23, 2022) (“The diversion of partnership funds to Olmstead
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`personally and to his other business placed him in direct competition with the interests of the
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`partnership and, thus, DeJoseph’s interest in the partnership. Consequently, Olmstead’s alleged
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`misconduct is governed by CUTPA.”); Zhao v. Dean, No. FSTCV196042813S, 2020 WL 1031613,
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`at *3 (Conn. Super. Ct. Jan.31, 2020) (holding that “transfer of MTC’s asset base” to other entities,
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`“which stripped MTC of its value,” and was “to the detriment of its shareholders and creditors,
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`would be competitive with MTC’s interest” and therefore subject to CUTPA); Bascom/Magnotta,
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`Inc. v. Magnotta, No. X04CV044000302S, 2005 WL 3470649, at *2 (Conn. Super. Ct. Nov. 18,
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`2005) (“It would appear, then, that some of the alleged conduct, such as the alleged siphoning of
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`1 Copies of unreported decisions are attached hereto as Exhibit A.
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`assets to [one owner] so that he retained all the benefits of the corporation, may state a claim on
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`which relief may be granted pursuant to CUTPA.”).
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`In short, “[o]ur case law supports the proposition…that conduct which transcends matters
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`of internal governance and instead places the alleged violator in competition with the interest of
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`the business organization may be subject to relief pursuant to [CUTPA].” Bascom/Magnetta, 2005
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`WL 3470649, at *2. That is precisely what the Complaint alleges took place here. Accordingly,
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`Defendants’ Motion to Strike the CUTPA claims alleged in Counts Three and Five should be
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`denied.
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`B. The Court Should Reject Defendants’ Motion to Strike Plaintiff’s Well-Plead Claim
`for Tortious Interference with Expected Inheritance.
`Defendants’ analysis of Annunziato’s tortious interference with expected inheritance claim
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`(the Fourth Count) is similarly divorced from Connecticut case law. Seeking to strike the claim,
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`Defendants first argue that this Court should decline to recognize the claim as a valid cause of
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`action on account of “the appellate courts’ hesitance to create this new cause of action in the first
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`place, and the uncertainty as to its elements and contours.” Defendants’ MOL at 10. In actuality,
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`however, Connecticut appellate courts have repeatedly assumed (though have not formally
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`decided) that a cause of action for tortious interference with expected inheritance is a viable claim
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`and have set forth its elements accordingly. See Solon v. Slater, 345 Conn. 794, 820 (2023);
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`O’Sullivan v. Haught, 348 Conn. 625 (2024). As the Connecticut Supreme Court explained in
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`Slater, “the essential elements of tortious interference with the right of inheritance are (1) an
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`expected inheritance, (2) the defendant’s knowledge of the expected inheritance, (3) the
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`defendant’s intent to interfere with the expected inheritance, (4) the interference was tortious, and
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`(5) actual loss suffered by the plaintiff as a result of the defendant’s tortious conduct.” Id. at 821.
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`Each of these elements is satisfied here: (1) Annunziato expected to receive valuable shares in
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`Westmore Fuel; (2) Defendants knew of Annunziato’s expected inheritance; (3) Defendants
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`intended to, and did, interfere with Annunziato’s expected inheritance by making exorbitant
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`distributions to themselves and otherwise wasting and misusing corporate funds in order to
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`artificially deflate the value of Westmore Fuel, and thereby reduce Annunziato’s inheritance; (4)
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`Defendants’ conduct was tortious in that it violated Defendants’ fiduciary duties and was designed
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`to intentionally interfere with Annunziato’s expectancy; and (5) Annunziato suffered actual loss,
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`namely, the reduction in value of her inheritance.
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`Disregarding the fact that the allegations of the Complaint squarely satisfy the elements of
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`a claim for tortious interference with expected inheritance, as set forth in Slater, Defendants argue
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`that the claim is not viable because Annunziato was not deprived entirely of her inheritance but
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`rather received 15.4% of the shares in an (artificially devalued) Westmore Fuel. Defendants’
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`interpretation of the requirements of this claim is absurd. Take, for example, an estate worth
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`$1,000,000, of which beneficiary A is entitled to receive 10%. Under Defendants’ interpretation
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`of the cause of action, the executor could drain the estate of assets, leaving only $10, and so long
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`as beneficiary A received $1 (i.e. 10% of the remaining assets), no claim for tortious interference
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`with expected inheritance would lie. This cannot be. The elements of a cause of action for tortious
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`interference with expected inheritance, as set forth by our Supreme Court, do not require a total
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`deprivation. All that is required is actual loss. There can be no serious dispute that the Complaint
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`adequately pleads that Annunziato suffered actual loss as a result of Defendants’ tortious conduct,
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`and as such, Defendants’ motion to strike Count Four should be denied.
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`C. The Complaint Properly Asserts Derivative Claims Under the Common Law Demand
`Futility Exception.
`Defendants maintain that Annunziato’s derivative claims should be dismissed for failure to
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`satisfy the demand requirement that Connecticut General Statutes § 33-722 prescribes.
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`Defendants’ contention elevates form over substance and ignores the weight of Connecticut
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`authority recognizing a common law futility exception to the demand requirement under which
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`Defendants seek dismissal.
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`Defendants do not dispute that if Annunziato had made demand on Defendants to bring the
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`derivative claims in this action, that demand would have been futile. They do not dispute that they
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`are controlling shareholders, principals, officers and directors of the Company, and that they would
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`never cause the Company to bring a lawsuit against themselves to redress their wrongful actions
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`in which they profited at the Company’s expense.
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`Rather, Defendants rely primarily on the legislative history of Connecticut General Statutes
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`§ 33-722 for the proposition that the enactment of C.G.S. § 33-722 extinguished the demand futility
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`exception. Upon closer examination, however, the statute’s history undermines rather than
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`supports Defendants’ position. The legislature enacted Connecticut General Statutes § 33-722 in
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`1994, with an effective date of January 1, 1997. Prior to the enactment of C.G.S. § 33-722, the
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`common law set the parameters for shareholder derivative actions in Connecticut. “In the normal
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`course of events…shareholders upset at” a corporation’s actions were not permitted to “initiate a
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`derivative suit without first making a demand upon the directors to bring the action.” Joy v. North,
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`692 F.2d 880, 888 (2d Cir. 1982). The law recognized an exception, however, where “there is a
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`conflict of interest in the directors’ decision not to sue because the directors themselves have
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`profited from the transaction underlying the litigation or are named defendants.” Id. Under such
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`circumstances, “no demand need be made and shareholders can proceed directly with a derivative
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`suit.” Id. This exception has come to be known as the “demand futility exception” and predated
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`the enactment of C.G.S. § 33-722 by several decades. Thus, the relevant question is not, as
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`Defendants posit, whether Connecticut General Statutes § 33-722 recognizes a demand futility
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`exception, but whether Connecticut General Statutes § 33-722 abrogated the well-established
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`common law demand futility exception. It did not.
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`Courts are guided by “well established principles” (ones that Defendants conveniently
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`ignore) in making the “determination of when a legislative enactment will be deemed to have
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`abrogated the common law.” Matthiessen v. Vanech, 266 Conn. 822, 838 (2003). “While the
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`legislature’s authority to abrogate the common law is undeniable, [courts] will not lightly impute
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`such an intent to the legislature.” Id. (quoting Munroe v. Great American Ins. Co., 234 Conn. 182,
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`187 (1995)). Thus, “[w]hen a statute is in derogation of common law…it should receive a strict
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`construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics
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`of statutory construction.” Id. (quoting Alvarez v. New Haven Register, inc., 249 Conn. 709, 715
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`(1999)). Rather, “[i]n determining whether or not a statute abrogates or modifies a common law
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`rule the construction must be strict, and the operation of a statute in derogation of the common law
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`is to be limited to matters clearly brought within its scope.” Id. In other words, “[a]lthough the
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`legislature may eliminate a common law right by statute, the presumption that the legislature does
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`not have such a purpose can be overcome only if the legislative intent is clearly and plainly
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`expressed.” Id. The purpose behind these principles is an important one: it “serve[s] the same
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`policy of continuity and stability in the legal system as the doctrine of stare decisis in relation to
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`case law.” Id.
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`Defendants attempt to do precisely what Connecticut jurisprudence prohibits; they rely on
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`principles of statutory construction to read an abrogation of the common law demand futility
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`exception into the statute where none exists. This interpretation flies in the face of the well-
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`established rule that the “[t]he legislature is always presumed to have created a harmonious and
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`consistent body of law…[and] to be aware of prior judicial decisions involving common-law
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`rules.” R.C. Equity Group, LLC v. Zoning Commission, 285 Conn. 240, 257 n.20 (2008). Had the
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`legislature intended to abrogate the common law demand futility exception, such intent would be
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`“clearly and plainly expressed” in the statutory language. See Dicin Electric Company, Inc. v. O
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`& G Industries, Inc., No. HHDCV166070813S, 2017 WL 2764752, at *5 (Conn. Super. Ct. May
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`25, 2017) (codification of certain common law rights for subcontractors did not eliminate causes
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`of action that existed at common law). That “there is no provision in [Connecticut General Statutes
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`§ 33-722] explicitly or even implicitly provid[ing]” for abrogation of the common law demand
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`futility exception compels the conclusion that the exception was intended to survive the enactment
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`of Connecticut General Statutes § 33-722. See Geriatrics, Inc. v. McGee, 332 Conn. 1, 16 (2019)
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`(reversing trial court’s holding that involvement of third-party transferor defeated claim under the
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`Connecticut Uniform Fraudulent Transfers Act and holding that CUTPA requirement that transfer
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`be “made by the debtor” does not abrogate common law principles of agency and therefore transfer
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`by agent of debtor was sufficient to make out a claim under CUFTA).
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`The weight of Connecticut authority post-enactment of C.G.S. § 33-722 confirms this
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`conclusion as Connecticut courts have routinely upheld the demand futility exception for
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`derivative claims. As Defendants admit, “[n]either Connecticut’s appellate courts nor the Second
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`Circuit Court of Appeals have addressed whether there is a common-law futility exception to the
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`demand requirement of § 33-722.” Camerota v. Camerota, No. X07-HHD-CV-18-6102657-S,
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`2024 WL 2955705, at *3 (Conn. Super. Ct. June 7, 2024). While Defendants rely on a handful of
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`outlier trial court decisions2 to assert that Connecticut courts do not recognize a demand futility
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`2 Defendants rely primarily on Beckworth v. Bizier, 138 F. Supp. 3d 144 (D. Conn. 2015). Like
`Defendants, however, the court in Beckworth did not apply the strict principles applicable to
`statutory abrogation of a common law rule. Accordingly, Beckworth and the other two Superior
`Court cases Defendants rely on—Bragoni v. Francalangia, No. X03HHDCV176079494S, 2017
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`exception, the vast majority of cases decided after the enactment of Connecticut General Statutes
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`§ 33-722 have continued to recognize the demand futility exception. See, e.g., Camerota, 2024
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`WL 2955705, at *3 (“This court has previously adopted the position that futility can be found, and
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`excuses pre-suit demand, where a plaintiff alleges facts from which the court can infer demand
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`futility, especially where the other individual corporate shareholders in the closely held entity are
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`directly involved in the alleged wrongdoing.”); Moore v. Bender, No. FSTCV136020376S, 2014
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`WL 4099345, at *8 (Conn. Super. Ct. July 14, 2014) (“After carefully scrutinizing and analyzing
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`the case’s own unique set of facts as set forth in the allegations of the complaint, this court finds
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`that formal demand on the companies is futile and thus unnecessary under the law.”); Rocco v.
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`Furrer, No. MMXCV136009192, 2013 WL 5879523, at *7 (Conn. Super. Ct. Oct. 17, 2013)
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`(rejecting argument that C.G.S. § 33-722 does not recognize futility exception and concluding that
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`the activities alleged in the complaint “are the type of allegations of self-dealing and fraud by a
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`majority voting bloc that would excuse Rocco from having to make demand under § 33-722 due
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`to futility.”); Ward v. Gamble, No. HHDCV116018954S, 2013 WL 4872711, at *6 (Conn. Super.
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`Ct. Aug. 19, 2013) (“In the absence of a clear appellate holding to the contrary, this court concludes
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`that it is appropriate to only require the plaintiff to either prove demand has been made or allege
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`particularized facts that demonstrate such demand would have been futile.”); Taccogna v. Turner,
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`No. LLICV125007399S, 2013 WL 1010633, at *4 (Conn. Super. Ct. Feb. 13, 2013) (“It is true that
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`General Statutes § 33-722 imposes such a ninety-day requirement, but there is clear authority for
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`the proposition that the foregoing steps need not be taken if taking them would be futile.”); First
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`Equity Group, Inc. v. Culver, No. 3:08-CV-01893 (VLB), 2009 WL 353490, at *4 (Conn. Super.
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`WL 5642275 (Conn. Super. Ct. 2017), and Anderson v. Estate of Weiss, No.
`MMXCV196024088S, 2019 WL 3407099 (Conn. Super. Ct. June 27, 2019)— are inapposite.
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`Ct. Feb. 11, 2009) (“Despite the existence of contrary case law, the defendant argues that the futility
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`concept was overridden by C.G.S. § 33-722, effective in 1997.”); Saunders v. Firtel, No.
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`CV054007690, at *3 (Conn. Super. Ct. Dec. 27, 2006) (affirming that “lack of written demand
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`pursuant to General Statutes § 33-722 was not fatal to the plaintiff’s case.”).
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`It is undisputed that it would have been futile for Plaintiff to demand that Defendants cause
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`the Company to sue themselves, and there is therefore no purpose to the demand requirement for
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`a derivative claim in this case. This Court should follow the vast majority of Connecticut cases
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`which have upheld the demand futility exception and deny Defendants’ motion to dismiss the
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`derivative claims.
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`IV. CONCLUSION
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`For the reasons set forth herein, the Court should deny Defendants’ Motion in its entirety.
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`THE PLAINTIFF,
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`By: /s/ David A. Ball
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`David A. Ball, Esq.
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`Nicole M. Dwyer, Esq.
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`Cohen and Wolf, P.C.
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`1115 Broad Street
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`Bridgeport, CT 06604
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`Tel. No. (203) 368-0211
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`Fax No. (203) 337-5534
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`E-Mail: dball@cohenandwolf.com
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`E-Mail: ndwyer@cohenandwolf.com
`Juris No. 010032
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`CERTIFICATION OF SERVICE
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`I certify that a copy of the above was or will immediately be mailed or delivered electronically
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`or non-electronically to all counsel and self-represented parties of record and that written consent for
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`electronic delivery was received from all counsel and self-represented parties of record who were or
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`will immediately be electronically served.
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`Leonard Braman
`Wofsey, Rosen, Kweskin & Kuriansky, LLP
`600 Summer Street, 7th Floor
`Stamford, CT 06901
`lbraman@wrkk.com
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`By: /s/ David A. Ball
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