STATE OF CONNECTICUT
`
`
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`
`SUPERIOR COURT
`
`JUDICIAL DISTRICT OF
`HARTFORD
`
`AT HARTFORD
`
`
`
`
`
`
`June 17, 2021
`
`DOCKET NO: HHD-CV21-6138150-S
`
`
`
`
`
`
`
`
`
`
`
`
`JENNIE RODRIGUEZ and other
`similarly situated employees
`
`Plaintiffs,
`
`
`
`
`
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`
`
`
`
`
`
`SLIDERS, INC.; SLIDERS RESTAURANT
`GROUP, LLC; SLIDERS MIDDLETOWN,
`LLC; SLIDERS TORRINGTON, LLC;
`SLIDERS WALLINGFORD, LLC; and
`FRED MARCANTONIO
`
`
`
`
`Defendants.
`
`
`
`
`
`
`MOTION TO INTERVENE
`
`Counsel for Plaintiff, Hayber, McKenna & Dinsmore, LLC (hereinafter “intervenor” or
`
`“HMD”) presently a non-party, hereby moves pursuant to Conn. Gen. Stat. Section 52-102, to
`
`intervene in this case to assert a charging lien1 in the amount of fees and costs incurred
`
`representing Plaintiff Rodriguez and to prevent Defendants from releasing any settlement funds
`
`to Plaintiff without first paying HMD all of the fees and costs to which they are entitled –
`
`presently estimated at $27,680.00. HMD seeks an order from this court granting permission to
`
`intervene, and an order directing Defendants not to pay Plaintiff until the amount of HMD’s lien
`
`is determined and paid over to HMD.
`
`I.
`
`Legal principles.
`
`Connecticut provides a mechanism for a non-party to intervene in litigation when that
`
`non-party asserts a claim to the litigation:
`
`
`1 See Olszewski v. Jordan III, 315 Conn. 618 (2015).
`
`

`

`
`
`Sec. 52-102. Joinder of persons with interest adverse to plaintiff and of
`necessary persons. Upon motion made by any party or nonparty to a civil
`action, the person named in the party's motion or the nonparty so moving,
`as the case may be, (1) may be made a party by the court if that person has
`or claims an interest in the controversy, or any part thereof, adverse to the
`plaintiff, or (2) shall be made a party by the court if that person is necessary
`for a complete determination or settlement of any question involved therein;
`provided no person who is immune from liability shall be made a defendant
`in the controversy.
`C.G.S. Sec. 52-102.
`
`
`
`Connecticut common law recognizes the right of an attorney or law firm to assert and
`
`obtain a lien against the proceeds due to a client for the fees and costs due to the lawyer who caused
`
`the funds to become due to the client:
`
`The concept of an attorney's charging lien is rooted in common law and is
`“founded on the equitable right of an attorney to recover ... fees and costs
`due ... for ... services out of the judgment ... obtained. Thus, an
`attorney's charging lien does not merely give the attorney an enforceable
`right against the property of another, but rather it gives the attorney an
`equitable ownership interest in the client's cause of action, and the client's
`property right in his or her own cause of action is only what remains after
`transfer to the attorney of the attorney's agreed-on share.” (Footnote
`omitted.) 7 Am.Jur.2d 352, Attorneys at Law § 317 (2007). An
`attorney's charging lien is distinguishable from an attorney's retaining lien,
`which is “a possessory lien on a client's papers and files that the attorney
`holds until his fee has been paid.” Marsh, Day & Calhoun v. Solomon, 204
`Conn. 639, 643, 529 A.2d 702 (1987).
`
`
`
`
`
`Our courts have held that the lien attaches to the “avails” coming to the client “as will
`
`pay him for his services and expenses therein.” Id. at 625 – 27.
`
`It has long been held that an attorney has ‘an equitable lien upon the avails [of
`his actions for a client] for the services and expenses in the suit.’Cooke
`v. Thresher, [supra, 51 Conn. at 107].... [The attorney's] undisputed testimony
`was that he obtained the funds on [his client's] behalf as a result of an action
`
`

`

`which he undertook as [his] attorney. He, therefore, had a lien upon those
`funds.” Perlmutter v. Johnson, supra, at 298, 505 A.2d 13.
`
`Id.
`
`II.
`
`Facts.
`
`On January 22, 2021, Plaintiff Jennie Rodriguez hired Plaintiff, Hayber, McKenna &
`
`Dinsmore, LLC to represent her in a class action lawsuit against Fred Marcantonio and five
`
`separate LLCs owned by Mr. Marcantonio to operate his “Sliders” restaurants.
`
`In that written agreement Rodriguez agreed to pay Plaintiff “ the greater of the value of
`
`the attorneys’ fees (their hours multiplied by their hourly rates) or thirty-three percent (33%) of
`
`the fund remaining after repayment of costs. In addition, Attorneys are entitled to reimbursement
`
`of all out-of-pocket costs advanced by them.”
`
`On February 9, 2021, Intervenor filed a lawsuit on behalf of Plaintiff and prosecuted that
`
`action diligently, advancing funds for filing fees, service fees, a jury fee and other fees.
`
`Intervenor has documented the hours it has worked on the case and presently estimate the value
`
`of its fees and costs at approximately $27,680.00.
`
`Intervenor has now learned that the Plaintiff and the Defendants have entered into a
`
`settlement behind Intervenor’s back which does not include provisions to pay Plaintiff its fees
`
`and costs. See Agreement attached as Ex. A. Whatever funds are being offered to Plaintiff are
`
`being offered because of the work that Intervenor did in filing the action and prosecuting the
`
`claims. Defendants have a new attorney who has communicated with the undersigned about this
`
`matter but as yet no enforceable agreement has been reached to protect Intervenor’s fees and
`
`costs.
`
`

`

`III. Discussion
`
`Any agreement to pay Plaintiff any sum of money will have occurred only because of the
`
`work and efforts of Intervenor HMD. By agreement with Plaintiff, HMD is owed their costs and
`
`the larger of 1/3 or the lodestar fees out of any settlement. Plaintiff has been in touch with
`
`Defendants’ new counsel but as yet no enforceable agreement has been reached and executed
`
`which will protect Intervenor’s fees and costs.
`
`IV.
`
`Conclusion
`
`Accordingly, Intervenor moves this court for an order permitting it to intervene and to
`
`assert a right to a charging lien for its fees and costs, presently estimated at $27,680.00 and
`
`climbing. Intervenor also asks this court to enjoin Defendants and their counsel from disbursing
`
`any funds to Plaintiff until the claims of Intervenor are adjudicated.
`
`
`
`
`
`
`
`
`Plaintiff, Hayber, McKenna & Dinsmore, LLC
`
`By: __/s/_Richard E. Hayber____
` Richard E. Hayber
`Hayber, McKenna & Dinsmore, LLC
`750 Main St, Suite 904
`Hartford, CT 06103
`Juris No. 426871
`Tel: (860) 522-8888
`Fax: (860) 218-9555
`rhayber@hayberlawfirm.com
`Attorney for Plaintiff
`
`
`
`
`

`

`
`
`CERTIFICATE OF SERVICE
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`_/s/ Richard E. Hayber__________
`Richard E. Hayber
`
`
`
`I hereby certify that a copy of the above was mailed or electronically delivered on June
`17, 2021, to all counsel and pro se parties of record:
`
`Attorney Jonathan Shaprio
`Aeton Law Partners, LLP
`311 Centerpoint Drive
`Middletown, CT 06457
`
`
`
`
`
`
`
`
`
`

`

`
`
`
`
`EXHIBIT A
`EXHIBIT A
`
`

`

`AGREEMENT AND GENERAL RELEASE
`
`Sliders, Inc., Slider’s Restaurant Group, LLC, Slider’s Middletown, LLC,Slider’s
`Torrington, LLC, Slider’s Wallingford, LLC, CDR4 Corp., FCT LLC, Sliders Wing Sauce, and
`Fred Marcantonio (“Slider’s”}, on the one side, and Jennie Rodriguez, her heirs, executors,
`administrators, successors, and assigns (referred to throughout
`this Agreement as “Ms.
`Rodriguez”), on the other, agree that:
`
`Pending Claim. There is an action currently pending in Connecticut
`1,
`Superior Court entitled Rodriguez y. Slider’s Inc. et. al. Docket No, HHD-CV-21-6138150-S the
`Action”). Ms. Rodriguez and Slider’s wish to resolve any andall disputes that may exist between
`them up to and including the date this Agreement and General Release is executed by Ms.
`Rodriguez. The parties agree that neither the making of this Agreement and General Release nor
`anything contained herein shall, in any way, be construed or considered to be an admission by Ms.
`Rodriguez or Slider’s of guilt, or ofnoncompliancewith,or violation of, any federal, state, or local
`statute or law, public policy, tort law, contract law, common law, or of any other wrongdoing,
`unlawful conduct, liability or breach of any duty whatsoever.
`
`Consideration. In consideration for Ms. Rodriguez signing this Agreement
`2.
`and General Release and complying with the promises herein, Slider’s agrees to pay Ms.
`Rodriguez a total sum of TWENTY-FIVE THOUSAND DOLLARS($25,000.00)to be allocated
`as follows:
`
`a check in the amount of TWELVE THOUSAND FIVE HUNDRED
`a.
`DOLLARS($12,500.00) less required withholdings will be issued to Ms. Rodriguez in connection
`with her alleged lost wages, including any and all unpaid minimum wage and overtime wages.
`This payment will be reported on an IRS Form W-2 issued to Ms. Rodriguez.
`
`a check in the amount of TWELVE THOUSAND FIVE HUNDRED
`b.
`DOLLARS($12,500.00) will be issued to Ms. Rodriguez in connection with her alleged claim for
`penalty damages andinterest. This payment will be reported on an IRS Form 1099 issued to Ms.
`Rodriguez.
`
`The payments described in this Paragraph 2 will be made within seven business
`days after all of the following have occurred:(1) Ms. Rodriguez has signed and returned a copy of
`this Agreement to Slider’s; (2) the Action has been withdrawn with prejudice as described in
`Paragraph 6; and (3) Ms. Rodriguez has provided Slider’s with IRS forms W4 and W9.
`
`Slider’s has not provided and could not provide Ms. Rodriguez with any advice
`with regard to her tax obligations on the considerationset forth in Paragraph 2 of this Agreement.
`Ms. Rodriguez understands and agrees that she shall be responsible for any andall tax obligations
`under federal, state and/or local tax laws, resulting from her receipt of the consideration. To the
`extent that any taxing authority shall make a determination that the Slider’s has failed to make
`proper withholdings from the consideration, Ms. Rodriguez shall hold Slider’s harmless and
`indemnify it for any liabilities, costs and expenses, including attorneys’ fees, caused by such
`
`1
`
`

`

`determination.
`
`No Consideration Absent Execution of this Agreement. Ms. Rodriguez
`3.
`understands and agrees that she would not receive the benefits specified in Paragraph 2 above,
`except for her execution of this Agreement and General Release and the fulfillment of the
`promises contained herein.
`
`General Release of AN Claims. Ms, Rodriguez knowingly and voluntarily
`4,
`releases and forever discharges, to the fullest extent permitted by law, Slider’s, including any
`parent corporation,affiliates, subsidiaries, divisions, predecessors, successors, and assigns, and the
`current and former employees, officers, directors, insurers, owners, attorneys and agents thereof
`(collectively referred to throughout the remainderofthis Agreement as-“Released Parties”), ofand
`from any and all claims, known and unknown,asserted and unasserted, Ms. Rodriguez has or may
`have against the Released Parties as of the date of her execution of this Agreement and General
`Release, including, but not limited to, any alleged violation of: Title VII of the Civil Rights Act
`of 1964; The Americans with Disabilities Act of 1990;The Family and Medical Leave Act; The
`Fair Credit Reporting Act; Connecticut Fair Employment Practices Act, Conn. Gen. Stat. § 46a-
`31 et seq.; Connecticut Statutory Provision Regarding Retaliation/Discrimination for Filing a
`Workers’ Compensation Claim, Conn. Gen. Stat. § 31-290a; Connecticut Family and Medical
`Leave Act, Conn. Gen. Stat. § 31-51kk et seq.; Connecticut Whistleblower Law, Conn. Gen.Stat.
`§ 31-51m(a) et seq.; Connecticut Free Speech Law, Conn. Gen.Stat. § 31-51q; Connecticut Wage
`Hour and Wage Payment Laws, as amended; Connecticut OSHA, as amended; Any other federal,
`state or local civil or human rights law or any other federal, state or local law, regulation or
`ordinance; Any obligation or claim arising under any public policy, contract (express or implied,
`written or oral), tort, or common law, including but not limited to, wrongful discharge, libel,
`slander, defamation, emotionaldistress, misrepresentation and/or obligations arising out of any of
`Slider’s employment policies or practices, employee handbooks and/or any statements by any
`employee or agentof Slider’s whether oral or written; and any allegation for costs, attorney’s fees,
`or other expenses,
`
`Claims Not Released, Ms. Rodriguez is not waiving any rights she may
`a.
`have to: (i) her own vested accrued employee benefits under any health, welfare, or retirement
`benefit plan sponsored and/or provided by, or on behalf of, Slider’s; (ii) benefits and/orthe right
`to seek benefits under applicable unemployment compensation and/or workers’ compensation
`statutes, excluding Conn. Gen.Stat. § 31-290a (claims under that provision being expressly waived
`herein);(iii) pursue claims which by law cannot be waived by signing this Agreement;(iv) enforce
`this Agreement; and/or (v) challenge thevalidity of this Agreement.
`
`-
`
`Governmental Agencies. Nothing in this Agreement prohibits or prevents
`b,
`Ms. Rodriguez from filing a charge with or participating,
`testifying, or assisting in any
`investigation, hearing, or other proceeding before any federal, state, or local government agency.
`However,
`to the maximum extent permitted by law, Ms. Rodriguez agrees that if such an
`administrative claim is made, she shall not be entitled to recover any individual monetary relief or
`other individual remedies. Likewise, Ms. Rodriguez further acknowledges and affirms that should
`
`

`

`she commence, or becomea partyto, any lawsuit against any ofthe Released Partiesfiled in federal
`or state court, she waives her right to any monetary recovery or damages,including attorneys’ fees.
`
`If any claim is not subject to release, to
`Collective/Class Action Waiver.
`c.
`the extent permitted by law, Ms. Rodriguez waives anyrightor ability to be a class or collective
`action representative or to otherwise participate in any putative or certified class, collective
`or multi-party action or proceeding based on such a claim in which Slider’s or any other Released
`Party identified in this Agreementis a party. Ms. Rodriguez promisesnot to consent to becomea
`memberof any class or collective group in a case in which claimsare asserted against Slider’s that
`are related in any way to her employment.
`If, without Mrs. Rodriguez’s prior knowledge or
`consent, she is made a member ofa class asserting claims against Slider’s, she agrees to opt out of
`the class at the first opportunity.
`
`Affirmations. Ms, Rodriguez affirms that she has not filed, caused to be
`5.
`filed, or presently is a party to any claim against Slider’s in any forum or form, except for the
`Action.
`
`Except for the amounts identified in this Agreement, Ms. Rodriguez affirms that
`she has been paid and/or has received all compensation, wages, bonuses, incentive compensation,
`vacation time, PTO and other benefits which are due and payable as of the date of her execution
`of this Agreement. Ms. Rodriguez affirms that no improper deductions were madefrom her wages
`and that she reported all hours worked.
`
`Ms. Rodriguez affirms that she was granted all leave (paid or unpaid) to which she
`wasentitled underthe state and/or federal Family and Medical Leave Actand that she hasnot been
`discriminated or retaliated against duc to his exercise ofrights, if any, under the state and/or federal
`Family and Medical Leave Act. Ms. Rodriguez further affirms that she has no known workplace
`injuries or occupational diseases,
`
`Ms. Rodriguez affirms that she has not divulged any proprietary or confidential
`information of Slider’s and that she will continue to maintain the confidentiality of such
`information consistent with company policy and the law. Ms. Rodriguez affirms that she has not
`beenretaliated against for reporting any allegations of wrongdoing or inappropriate conduct by
`Slider’s or its officers, including any allegations of corporate or financial fraud.
`
`Ms. Rodriguez affirmsthat all of Slider’s decisions regarding her pay and benefits
`through the date of her execution of this Agreement were not discriminatory based on age,
`disability, race, color, sex, religion, national origin or any other classification protected by law.
`
`Withdrawal of Claims. Ms. Rodriguez agrees to execute and file any and
`6.
`all documents necessary to effectuate the withdrawal of the Action and any other charge, lawsuit,
`or other claim filed by her against Slider’s, with prejudice, and without costs or fees awarded to
`either party. Ms. Rodriguez agrees that she will not institute or continue any claim, grievance,
`charge, lawsuit, or action of any kind against Slider’s relating to any matter released by this
`Agreement and General Release.
`
`

`

`Limited Confidentiality and Return of Property. Ms. Rodriguez agrees
`7.
`not to disclose any information regarding the existence or substance ofthis Agreement and General
`Release including the discussions which led thereto, except to her tax or financial advisor,
`immediate family and/or an attorney with whom Ms. Rodriguez chooses to consult regarding her
`consideration of this Agreement and General Release and/or to any federal, state or local
`government agency. IfMs. Rodriguez engages in any permissible disclosure to her tax or financial
`advisor, immediate family and/or an attorney, such persons to which disclosure is made shall be
`advised that they, in turn, are bound by the requirements of this confidentiality provision.
`
`In the event any inquiry is made to Ms. Rodriguez regarding this matter, she agrees
`to state only, “The matter has been resolved.” Ms. Rodriguez agrees that any violation of this
`Paragraph will cause irreparable harm and damageto Slider’s and will seriously interfere with the
`purpose of this Agreement, which is to accomplish a private, unpublished settlement and general
`release of any and all claims Ms. Rodriguez has or may have against Slider’s.
`
`Ms. Rodriguez affirms that she has returned all of Slider’s property, documents,
`and/or any confidential information in her possession or control to Slider’s. Ms. Rodriguez also
`affirms that she is in possession of all of the property that she had on Slider’s premises and that
`Slider’s is not in possession of any of her property.
`
`Non-Disparagement. Ms. Rodriguez represents and agrees that she will
`8.
`not in any way disparage Slider’s including, but not limited to, current and former officers,
`directors and employees, or make or solicit any comments, statements, or the like (including,
`withoutlimitation, the repetition or distribution of derogatory rumors, allegations, negative reports
`or comments) to the media or to others that may be considered to be derogatory or detrimental to
`the good name or business reputation of Slider’s. This includes any comments, posts or other
`communications on social media.
`
`Ms. Rodriguez acknowledges and agrees that a violation of any or all of the
`foregoing non-disparagement or confidentiality provisions in Paragraphs 7 and 8 of this
`Agreement will cause Slider’s irreparable harm. Ms. Rodriguez agrees that Slider’s is entitled to
`protection from such;violations, both actual and threatened, including protection by injunctive
`relief, in addition to other remedies available under the law. All of Slider’s remediesfor the breach
`of this Agreement will be cumulative and the pursuit of any one remedy will not be deemed to
`exclude any other remedies.
`
`If Slider’s proves in a court of competent jurisdiction that Ms. Rodriguez or any
`agent acting under Ms. Rodriguez’s direction or with the direct or indirect consent or approval of
`Ms. Rodriguez, breached Paragraphs 7 or 8 of this Agreement, Ms. Rodriguez will: (i) be liable
`for actual damages; (ii) forfeit any consideration provided under this Agreement not yet made; and
`(iii) reimburse Slider’s for reasonable attorney’s fees and costs incurred in enforcingthis provision,
`but Ms. Rodriguez shall remain bound by the general and unlimited release of all claims contained
`herein.
`
`

`

`9, Medicare Indemnification. Ms. Rodriguez certifies and declares that she has
`no present or outstanding claim against Slider’s (excluding any claims against any group health
`plan) involving any illness, injury, incident, or accident in which medical expensesarising out of
`such claim were incurred and paid in whole or in part by Medicare. Accordingly, she certifies that
`Medicare has no interest in the consideration paid under this Agreement. However, if Medicare
`(or the agency representing Medicare’s interests) later determines that it does have an interest in
`the consideration received by Ms. Rodriguez underthis Agreement, the party for whom Medicare
`has such interest agrees to indemnify Slider’s as soon as possible for any payments Slider’s
`reasonably is required to make to Medicare(or the agency collecting on behalf of Medicare) as a
`result of the payments under this Agreement. However, such indemnification shall not exceed the
`amount of consideration paid under this Agreement. Ms. Rodriguez shall reasonably cooperate
`with Slider’s upon request in the event that Medicare makes any claim for which she may be
`required to indemnify Slider’s under this paragraph. Ms. Rodriguez further agrees that she, and
`not Slider’s, shall be responsible for satisfying any licns, claims, demands, subrogated interests,
`or causes ofaction that may exist or have been asserted or that may in the future exist or be asserted
`by, or on behalf of Medicare.
`
`This Agreement and General
`Governing Law and Interpretation.
`10.
`Release shall be governed and conformed in accordance with the laws of the state of Connecticut
`without regard to its conflict of laws provision.
`In the event of a breach of any provisionofthis
`Agreement, either party may institute an action specifically to enforce any term or terms ofthis
`Agreement and/or seek any damages for breach. Should any provision of this Agreement and -
`General Release be declared illegal or unenforceable by any court of competent jurisdiction and
`cannot be modified to be enforceable, excluding the general release language, such provision shall
`immediately become null and void, leaving the remainder of this Agreement and General Release
`in full force and effect.
`
`Amendment. This Agreement and General Release may not be modified,
`Ii.
`altered or changed except in writing and signed by the parties wherein specific reference is made
`to this Agreement.
`
`Entire Agreement. This Agreement and General Release sets forth the
`12,
`entire agreement between the parties hereto, and fully supersedes any prior agreements or
`understandings between the parties concerning its subject matter except for any confidentiality,
`non-solicitation, and non-competition agreements between the parties. Ms. Rodriguez has not
`relied on any representations, promises, or agreements of any kind madeto her in connection with
`her decision to accept this Agreement and General Release, except for those set forth in this
`Agreement.
`
`Signing of Agreement. This Agreement may be executed in one or more
`13.
`counterparts, each of which shall constitute an original and all of which shall constitute one
`instrument. Signatures delivered via facsimile or electronically shall have the sameforce,validity
`and effect as the originals thereof.
`
`

`

`MS. RODRIGUEZ IS ADVISED THAT SHE HAS A REASONABLEPERIOD OF
`TIME TO CONSIDER THIS AGREEMENT AND GENERAL RELEASE. MS.
`RODRIGUEZ ALSO IS ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO
`SIGNING THIS AGREEMENT AND GENERAL RELEASE. MS. RODRIGUEZ
`CONFIRMS THAT SHE DID, IN FACT, CONSULT WITH COUNSEL PRIOR TO
`SIGNING THIS AGREEMENT.
`
`MS. RODRIGUEZ FREELY AND KNOWINGLY, AND AFTER DUE
`CONSIDERATION, ENTERS INTO THIS AGREEMENT AND GENERAL RELEASE
`INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS SHE HAS OR MIGHT
`HAVE AGAINST SLIDER’S AND THE RELEASED PARTIES AS SET FORTH IN
`PARAGRAPH 4 ABOVE.
`
`The parties knowingly and voluntarily signed this Agreement and General Release
`as of the date(s) set forth below:
`
`ceI7/ ZI Date: Sy ~ > [
`
`
` Jennie Rodriguez
`
`