Kaufman LLC et al v. Feinberg et al
Filing
352
ORDER granting 333 Motion for Summary Judgment; granting 334 Motion for Summary Judgment. For the reasons described in the attached Ruling and Order, the Court GRANTS the motions for summary judgment as to all remaining counts of the Complaint. The Clerk of Court is respectfully directed to close this case. Signed by Judge Victor A. Bolden on 5/11/24. (Chan, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
KAUFMAN LLC & ALAN KAUFMAN,
Plaintiffs,
v.
No. 3:17-cv-958 (VAB)
ESTATE OF HERBERT FEINBERG et al.,
Defendants.
RULING AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT
Kaufman LLC (“Kaufman”), a Connecticut limited liability company, and Alan Kaufman
(“Mr. Kaufman”), an attorney (collectively, “Plaintiffs”), have sued the Estate of Herbert
Feinberg (the “Estate”), Norman Arnoff, and Richard Derzaw (collectively “Defendants” 1) for:
(1) vexatious litigation under Connecticut common law, (2) vexatious litigation under
Connecticut General Statute § 52-568, and (3) civil conspiracy. 2 Second Am. Compl., ECF No.
146 (May 27, 2019) (“Compl.”); Order on Mots. to Dismiss, ECF No. 172 (Jan. 31, 2020)
(“Order on MTDs”).
On December 5, 2023, Mr. Derzaw and the Estate each filed a motion for summary
judgment. Def. Richard Derzaw’s Mot. for Summ. J., ECF No. 333 (Dec. 5, 2023) (“Derzaw
Mot.”); Def. Estate of Herbert Feinberg’s Mot. for Summ. J. and Mot. to Dismiss for Failure to
Prosecute, ECF No. 334 (Dec. 5, 2023) (“Estate Mot.”).
For the following reasons, the Court GRANTS the motions for summary judgment as to
all counts of the Complaint.
Steven Storch and Jason Levin were named as Defendants in the Amended Complaint, ECF No. 146 (May 27,
2019), but were subsequently dismissed, see Order on MTDs at 21.
2
The Second Amended Complaint contained additional claims, which have since been dismissed. See Order on
MTDs at 21.
1
1
I.
FACTUAL AND PROCEDURAL BACKGROUND
Given the significant length of this litigation, the Court assumes familiarity with the
factual background and procedural history of the case and only includes events relevant to the
motions for summary judgment.
A. Factual Background 3
Mr. Kaufman, an attorney, is the sole member and manager of Kaufman LLC, a
Connecticut limited liability company with a business address in Darien, Connecticut. Statement
Pursuant to Local Rule 56(a)(1) in Supp. of Def. Richard Derzaw’s Mot. for Summ. J. ¶¶ 17–18,
ECF No. 331-2 (Dec. 5, 2023) (“Derzaw SMF”); Compl. ¶ 2.
From March 2009 to September 2010, Mr. Kaufman represented Mr. Feinberg under a
year-to-year-contract for litigation-related services involving Mr. Feinberg or his companies.
Compl. ¶ 8; Local Rule 56(a)(1) Statement in Supp. of Def. Estate of Feinberg’s Mot. for Summ.
J. and Mot. to Dismiss for Failure to Prosecute ¶¶ 2–5, ECF No. 336 (Dec. 5, 2023) (“Estate
SMF”).
Mr. Kaufman served as Mr. Feinberg’s general in-house counsel and provided a range of
services, such as: providing advice to Mr. Feinberg; drafting agreements and communicating
with third-parties on behalf of Mr. Feinberg, including the preparation of a trust agreement and
other estate planning matters; providing advice and representation regarding a life insurance
To determine the undisputed facts in this case, the Court relies upon the parties’ Local Rule 56(a) Statements, to
the extent that they comply with the Federal Rules of Civil Procedure and the Local Rules of this District, and
evidence cited therein. Plaintiffs have failed to file a Local Rule 56(a)(2) Statement in response to Defendants’
Local Rule 56(a)(1) Statements. “Where a party asserts a fact and the opposing party either fails to deny the
assertion or, in issuing a denial, the party does not cite to evidence disputing its accuracy, the Court deems such fact
admitted.” Malick v. J.P. Morgan Chase Bank, N.A., No. 3:13-CV-00669 (VLB), 2015 WL 5797008, at *1 n.1 (D.
Conn. Sept. 30, 2015); see also D. Conn. L.R. Civ. P. 56(a)(1) (“Each material fact set forth in the Local Rule
56(a)(1) Statement and supported by the evidence will be deemed admitted (solely for purposes of the motion)
unless such fact is controverted by the Local Rule 56(a)(2) Statement required to be filed and served by the opposing
party in accordance with this Local Rule[.]”). The Court therefore deems admitted each material fact set forth in
Defendants’ Local Rule 56(a)(1) Statement, to the extent that it is supported by the evidence.
3
2
policy, a boat in Florida, a bond posted in connection with an appeal, a property in the Hudson
Valley, an investment in a company called Citibabes, and a certificate of deposit with Astoria
Bank; and assisting with the termination of employees, including preparation of a promissory
note and confidentiality agreement. Estate SMF ¶¶ 10–11.
Throughout the period of Mr. Kaufman’s representation of Mr. Feinberg—during which
Mr. Kaufman worked from his Connecticut office and provided legal services to Mr. Feinberg,
who was located in New York— Mr. Kaufman was not admitted to practice law in either
Connecticut or New York, although he was admitted to practice law in Massachusetts and the
District of Columbia. Id. ¶ 6; Judgment and Order, In re: Motion of May 27, 2002 by the Board
of Bar Overseers for Suspension of Attorneys Pursuant to Supreme Judicial Court Rule 4:03, (2),
Ex. 12 to Estate SMF, ECF No. 336-5 at 109–10 (Dec. 5, 2023); Letter Re: Reinstatement of
Attorney Following Administrative Suspension for Nonpayment of Registration Fees, Ex. 13 to
Estate SMF, ECF No. 336-5 at 117 (Dec. 5, 2023).
Mr. Kaufman was administratively suspended from the Massachusetts Bar on July 26,
2002, and he was reinstated on May 8, 2007. Judgment and Order, In re: Motion of May 27,
2002 by the Board of Bar Overseers for Suspension of Attorneys Pursuant to Supreme Judicial
Court Rule 4:03, (2), Ex. 12 to Estate SMF, ECF No. 336-5 at 109–10 (Dec. 5, 2023).
Mr. Kaufman was administratively suspended from the District of Columbia Bar for nonpayment of dues for several periods between 1994 and 2009. Letter Re: Reinstatement of
Attorney Following Administrative Suspension for Nonpayment of Registration Fees, Ex. 13 to
Estate SMF, ECF No. 336-5 at 117 (Dec. 5, 2023). He has been an active member of the District
of Columbia Bar since April 2009. Id.
In his affidavit in support of his request for reinstatement to the Massachusetts Bar, Mr.
3
Kaufman indicated that he was “[n]ot currently admitted” to any jurisdiction. Aff. in Supp. of
Request for Reinstatement, Ex. 12 to Estate SMF, ECF No. 336-5 at 115 (Dec. 5, 2023). He also
wrote that he “was at all times in good standing” with the District of Columbia Bar. Id.
In three affidavits in support of three motions for admission pro hac vice in May through
August of 2010, Mr. Kaufman stated that he was admitted to practice in the Commonwealth of
Massachusetts and the District of Columbia, and that he had been, at all times, a member in good
standing. Derzaw SMF ¶ 28; see Aff. of Alan H. Kaufman in Supp. of Mot. for Pro Hac Vice
Admission, Ex. 24 to Derzaw SMF, ECF No. 331-3 at 201–02 (Dec. 5, 2023); Aff. of Alan H.
Kaufman, Ex. 26 to Derzaw SMF, ECF No. 331-3 at 204–05 (Dec. 5, 2023); Verified Statement,
Ex. 26 to Derzaw SMF, ECF No. 331-3 at 211–12 (Dec. 5, 2023).
In August 2013, Kaufman LLC brought a lawsuit against Mr. Feinberg and related
entities (the “Fee Case”), advancing claims for unpaid fees related to Mr. Kaufman’s work on
cases in New York and Pennsylvania. Estate SMF ¶ 30; Derzaw SMF ¶ 16. In that case,
Kaufman stipulated that Mr. Kaufman had “performed legal services” and “provided legal advice
and representation” to Mr. Feinberg. Estate SMF ¶ 11.
In November 2013, Mr. Derzaw reached out to the Connecticut Statewide Bar Counsel
and learned that Mr. Kaufman had sought and received multi-jurisdictional practice (MJP)
exemptions under the Connecticut Rule of Professional Conduct 5.5(f) for three matters between
2009 and 2013, but that he had not sought any such exemptions for matters related to his work
for Mr. Feinberg. Derzaw SMF ¶¶ 20–22.
On June 11, 2014, Mr. Feinberg filed four nearly-identical grievance complaints against
Mr. Kaufman in Connecticut, New York, Massachusetts, and the District of Columbia. Id. ¶ 26.
The Complaints were co-signed by Mr. Derzaw and Norman Arnoff, both attorneys for Mr.
4
Feinberg. Id. ¶¶ 7–8. These complaints alleged that “Kaufman and his LLC represented, rendered
legal services, and provided legal advice to entities that Feinberg and his family owned, to
Feinberg and his family members from and in jurisdictions in which he was not licensed to
practice law, i.e., Connecticut and New York.” Disciplinary Compl. Against Alan H. Kaufman,
Ex. 4 to Estate SMF, ECF No. 336-5 at 14 (Dec. 5, 2023) (“Disciplinary Compl.”) (emphasis in
original). They also alleged that Mr. Kaufman had misrepresented his bar status and disciplinary
history, breached client confidentiality, and violated the rules of professional conduct. See id. at
18–25.
Mr. Feinberg admitted in a subsequent deposition that the grievance complaints were
undertaken to “caus[e] trouble” for Mr. Kaufman, in retaliation for the Fee Case. Pl. Mot. to
Stay, ECF No. 348 at 4 n.1 (Apr. 8, 2024) (“Mot. to Stay”) (quoting Feinberg Dep. Tr. at 330
(Nov. 18, 2018)). 4
On November 7, 2014, the State Grievance Committee of Connecticut dismissed the
Connecticut grievance complaint and found that Mr. Kaufman did not engage in the unlicensed
practice of law in any jurisdiction, misrepresent his credentials, breach confidentiality,
improperly attempt to collect legal fees, or provide incompetent representation. Feinberg v.
Kaufman, Grievance Compl. #14-0470, Grievance Panel Dismissal, Ex. 39 to Estate SMF, ECF
No. 336-41 at 2–3 (Dec. 5, 2023).
On September 17, 2017, the Bar Disciplinary Council for the District of Columbia
dismissed the grievance and found an absence of probable cause. Letter Re: Kaufman/Feinberg,
Disciplinary Docket No. 2014-D176, Ex. 40 to Estate SMF, ECF No. 336-42 at 2–3 (Dec. 5,
Although Mr. Kaufman has cited this quote in several filings, the Court has not received a transcript of the relevant
deposition. But, because this admission would not change the outcome of the case, the Court addresses the statement
as if it had been admitted, solely for the purpose of ruling on these motions.
4
5
2023). The D.C. Disciplinary Council also dismissed the referred grievance complaint filed in
New York. Compl. ¶ 35.
On April 4, 2018, the Board of Bar Overseers in Massachusetts closed the Massachusetts
complaint file. Id. ¶ 36.
B. Procedural History
On June 9, 2017, Plaintiffs filed the original Complaint in this action. Compl., ECF No. 1
(June 9, 2017).
The parties engaged in extensive motion practice, including the filing of two Amended
Complaints, see ECF No. 51 (Sept. 28, 2017) and ECF No. 146 (May 27, 2019), as well as
several motions to dismiss, see ECF No. 60 (Oct. 19, 2017), ECF No. 111 (Sept. 20, 2018), and
ECF No. 150 (June 10, 2019).
On January 31, 2020, the Court granted motions to dismiss by Defendants Storch, Levin,
and Derzaw. Order on MTDs. The Court terminated Attorneys Storch and Levin as Defendants;
dismissed all claims based on grievance complaints filed in New York, Massachusetts, and the
District of Columbia; and dismissed Count Four. Id.
On March 16, 2020, Mr. Derzaw and the Estate filed motions to strike several paragraphs
of the Second Amended Complaint under Fed. R. Civ. P. 12(f). ECF Nos. 188–89 (Mar. 16,
2020).
On January 27, 2021, in the absence of any response by Plaintiffs, the Court granted the
motions to strike and ordered Plaintiffs to submit a Third Amended Complaint. Order, ECF No.
246 (Jan. 27, 2021).
On February 16, 2021, Plaintiffs filed the Third Amended Complaint, the operative
Complaint in this case. Compl.
6
On February 4, 2022, Mr. Derzaw and the Estate filed their Answers. ECF Nos. 273–74
(Feb. 4, 2022).
On December 5, 2023, Mr. Derzaw and the Estate filed motions for summary judgment.
Derzaw Mot.; Estate Mot.
Plaintiffs never filed a response to the motions for summary judgment.
On March 28, 2024, the Court issued an Order stating that, in the absence of any response
from Plaintiffs, it would consider the motions for summary judgment to be fully briefed and
would not accept any additional filings beyond those already submitted. Order, ECF No. 347
(Mar. 28, 2024).
On April 8, 2024, Plaintiffs filed a motion to stay any decision on the pending motions
for summary judgment, pending the resolution of an appeal in the Fee Case, Kaufman LLC v.
Estate of Feinberg et al., No. 3:13-CV-1259 (VAB). Mot. to Stay. The motion also included
several substantive arguments related to the pending motions for summary judgment. Id.
On April 29, 2024, the Estate filed a motion to strike Plaintiffs’ motion to stay, arguing
that it was both untimely and in violation of this Court’s order prohibiting further briefing on the
motions for summary judgment. Mot. to Strike, ECF No. 351 (Apr. 29, 2024).
II.
STANDARD OF REVIEW
A court will grant a motion for summary judgment if the record shows no genuine issue
as to any material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). The moving party bears the initial burden of establishing the absence of a genuine dispute
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party may
defeat the motion by producing sufficient evidence to establish that there is a genuine issue of
material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “[T]he mere
7
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Id. at 247–48 (emphasis in the original).
“[T]he substantive law will identify which facts are material.” Id. at 248. “Only disputes
over facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Id.; see Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.
1996) (“[M]ateriality runs to whether the dispute matters, i.e., whether it concerns facts that can
affect the outcome under the applicable substantive law.” (citing Anderson, 477 U.S. at 248)).
“The inquiry performed is the threshold inquiry of determining whether there is the need
for a trial—whether, in other words, there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be resolved in favor of either
party.” Anderson, 477 U.S. at 250. When a motion for summary judgment is supported by
documentary evidence and sworn affidavits and “demonstrates the absence of a genuine issue of
material fact,” the non-moving party must do more than vaguely assert the existence of some
unspecified disputed material facts or “rely on conclusory allegations or unsubstantiated
speculation.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (citation
omitted).
The party opposing the motion for summary judgment “must come forward with specific
evidence demonstrating the existence of a genuine dispute of material fact.” Id. “If the evidence
is merely colorable, or is not significantly probative, summary judgment may be granted.”
Anderson, 477 U.S. at 250 (citing Dombrowski v. Eastland, 387 U.S. 82, 87 (1967); First Nat’l
Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)).
A court must view any inferences drawn from the facts in the light most favorable to the
8
party opposing the summary judgment motion. See Dufort v. City of N.Y., 874 F.3d 338, 343 (2d
Cir. 2017) (“On a motion for summary judgment, the court must ‘resolve all ambiguities and
draw all permissible factual inferences in favor of the party against whom summary judgment is
sought.’”). A court will not draw an inference of a genuine dispute of material fact from
conclusory allegations or denials, see Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011),
and will grant summary judgment only “if, under the governing law, there can be but one
reasonable conclusion as to the verdict,” Anderson, 477 U.S. at 250.
II.
DISCUSSION
Plaintiffs’ three remaining claims—common law and statutory vexatious litigation and
civil conspiracy—arise solely from the grievance complaint submitted by Defendants to the
Connecticut Statewide Bar Counsel (the “Grievance Complaint”), which alleged misconduct by
Mr. Kaufman in the course of his provision of legal services to Mr. Feinberg. See Disciplinary
Compl.; Order on MTDs.
Mr. Derzaw and the Estate raise the same four arguments in their motions for summary
judgment: (1) Plaintiffs’ claims are time-barred; (2) the grievance filing was supported by
probable cause; (3) the Noerr-Pennington doctrine immunizes them from this suit; and (4)
Plaintiffs’ failure to comply with District of Connecticut Local Rule of Civil Procedure 5(e)(4)
(“Local Rule 5(e)(4)”) and this Court’s orders warrants dismissal.
The Court first addresses the procedural argument regarding Plaintiffs’ failure to comply
with Local Rule 5(e)(4). Second, the Court provides an overview of the relevant caselaw and
addresses Defendants’ statute of limitations argument and substantive arguments regarding the
viability of Plaintiffs’ vexatious litigation and civil conspiracy claims. Third and finally, the
Court will briefly address the issue of Noerr-Pennington immunity, to the extent necessary.
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A. Local Rule 5(e)(4)
Local Rule 5(e)(4) lays out several different procedures for the filing of a document on
the docket under seal. The rule provides, among other requirements, that counsel must file an
unredacted version of any sealed filing. See D. Conn. L.R. Civ. P. 5(e)(4)(a). Federal Rule of
Civil Procedure 41(a) (“Rule 41(a)”) provides: “[i]f the plaintiff fails to prosecute or to comply
with these rules or a court order, a defendant may move to dismiss the action or any claim
against it.”
Mr. Derzaw and the Estate argue that summary judgment should be granted because
Plaintiffs failed to file an unredacted copy of the Second Amended Complaint, as required by
this Court’s Order and Local Rule 5(e)(4), in their view a “fatal defect.” Def. Richard Derzaw’s
Mem. of L. in Sup. Of Mot. for Summ. J., ECF No. 331-1 at 27 (Dec. 5, 2023) (“Derzaw
Mem.”); Def. Estate of Herbert Feinberg’s Mem. of L. in Supp. of Mot. for Summ. J. and Mot. to
Dismiss for Failure to Prosecute, ECF No. 335 at 26 (Dec. 5, 2023) (“Estate Mem.”). In light of
this failure, Defendants argue that the Court should dismiss the entire case under Federal Rule of
Civil Procedure 41(a). Id.
The Court disagrees.
The Second Circuit has cautioned against the casual dismissal of actions under Rule
41(a). While “involuntary dismissal is an important tool for preventing undue delays and
avoiding docket congestion[,] . . . it is also one of the harshest sanctions at a trial court’s
disposal, since it usually extinguishes the plaintiff’s cause of action and denies plaintiff his day
in court.” U.S. ex rel. Drake v. Norden Systems, Inc., 375 F.3d 248, 251 (2d Cir. 2004). Rule
41(a) therefore “is reserved for use only in the most extreme circumstances.” Id.
Courts considering whether to dismiss a case under Rule 41(b) must consider the
10
following five factors: “[1] the duration of the plaintiff’s failures, [2] whether plaintiff had
received notice that further delays would result in dismissal, [3] whether the defendant is likely
to be prejudiced by further delay, [4] whether the district judge has take[n] care to strik[e] the
balance between alleviating court calendar congestion and protecting a party’s right to due
process and a fair chance to be heard . . . and [5] whether the judge has adequately assessed the
efficacy of lesser sanctions.” LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir.
2001) (internal quotations and citations omitted) (quoting Alvarez v. Simmons Mkt. Research
Bureau, Inc., 839 F.2d 930, 932 (2d Cir. 1988)). No single factor is dispositive. Baptiste v.
Sommers, 768 F.3d 212, 217 (2d Cir. 2014).
Here, dismissal under Rule 41(b) is not warranted. It is true that Plaintiffs failed to
comply with Local Rule 5(e)(4) by neglecting to file an unredacted version of the operative
Complaint, see ECF No. 250, and that this failure has prejudiced the Defendants. Over the past
three years, since the filing of the Complaint, Defendants have submitted Answers, motions for
summary judgment, and other filings, all without having access to a complete, unredacted
version of the operative Complaint. And this is not the first time that Plaintiffs have missed
deadlines or otherwise failed to act in accordance with the Federal Rules of Civil Procedure, the
Local Rules of Civil Procedure, or this Court’s orders. See, e.g., Order, ECF No. 246 (Jan. 27,
2021) (“The Court grants the motions to strike as Mr. Kaufman has not filed an opposition to
these motions”); Order, ECF No. 307 (Aug. 3, 2023) (noting “Plaintiff’s failure to update the
Court on the outstanding discovery as required by a previous Order, see ECF No. 300 (‘By
August 1, 2023 at 5:00 p.m., Plaintiff shall update the Court on any efforts to comply with the
outstanding discovery.’)”).
Given the extent of litigation that has already taken place in this case, and the significant
11
issues at stake, dismissal on the basis of a procedural violation is not appropriate. Instead, in
accordance with the Second Circuit’s general preference, the Court will address the merits of this
case. See Pecarsky v. Galaxiworld.com Ltd., 249 F.3d 167, 172 (2d Cir. 2001) (“[S]trong public
policy favors resolving disputes on the merits.”); Chira v. Lockheed Aircraft Corp., 634 F.2d
664, 668 (2d Cir. 1980) (“[A] court must not let its zeal for a tidy calendar overcome its duty to
do justice.” (quoting Davis v. United Fruit Co., 402 F.2d 328, 331 (2d Cir. 1968))); Peoples v.
Fisher, 299 F.R.D. 56, 59 (W.D.N.Y. 2014) (“While courts are entitled to enforce compliance
with the time limits of the Rules by various means, the extreme sanction of a default judgment
must remain a weapon of last, rather than first, resort.”).
Accordingly, the Court denies summary judgment on the basis of Defendants’ failure to
prosecute argument.
B. The Vexatious Litigation and Civil Conspiracy Claims
“The cause of action for vexatious litigation permits a party who has been wrongfully
sued to recover damages.” Spilke v. Wicklow, 53 A.3d 245, 259 (Conn. App. Ct. 2012) (quoting
Bernhardt-Thomas Building Systems, LLC v. Dunican, 944 A.2d 329, 334–35 (Conn. 2008)). In
Connecticut, there exists both a statutory and common law cause of action for vexatious
litigation. Bernhardt-Thomas Building Systems, LLC, 944 A.2d at 335. Both require the plaintiff
to prove “that a civil action has been prosecuted.” QSP, Inc. v. Aetna Casualty & Surety Co., 773
A.2d 906, 919 (Conn. 2001). At common law, a plaintiff must additionally prove “want of
probable cause, malice and a termination of suit in the plaintiff’s favor.” Falls Church Group,
Ltd. v. Tyler, Cooper & Alcorn, LLP, 912 A.2d 1019, 1026–27 (Conn. 2007). The statutory cause
of action, under Conn. Gen. Stat. § 52-568, “differs from a common-law action only in that a
finding of malice is not an essential element, but will serve as a basis for higher damages.”
12
Bernhardt-Thomas Building Systems, LLC, 944 A.2d at 335 (quoting Falls Church Group, Ltd.,
912 A.2d at 1027).
“The [elements] of a civil action for conspiracy are: (1) a combination between two or
more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful
means, (3) an act done by one or more of the conspirators pursuant to the scheme and in
furtherance of the object, (4) which act results in damage to the plaintiff.” Harp v. King, 835
A.2d 953, 973 (Conn. 2003) (internal quotation marks omitted) (quoting Marshak v. Marshak,
628 A.2d 964, 970 (Conn. 1993)). “[T]he essence of a civil conspiracy . . . [is] two or more
persons acting together to achieve a shared goal that results in injury to another.” Id. at 972.
Importantly, there is no standalone claim for civil conspiracy. In other words, “to state a cause of
action, a claim of civil conspiracy must be joined with an allegation of a substantive tort.”
Macomber v. Travelers Prop. & Cas. Corp., 894 A.2d 240, 254 (Conn. 2006) (quoting Harp,
835 A.2d at 972 n.37).
Plaintiffs argue that the filing of the Grievance Complaint with the Connecticut Statewide
Bar Counsel, without probable cause and for a vindictive purpose, constituted vexatious
litigation. Compl. ¶¶ 72–103. Plaintiffs have also brought a claim of civil conspiracy, arguing
that Defendants combined and conspired to commit a tortious act—vexatious litigation—for the
purpose of harming Plaintiffs. Id. ¶ 111.
Because the civil conspiracy claim is derivative of Plaintiffs’ vexatious litigation claims,
to the extent that summary judgment is granted on the vexatious litigation claims, the Court
likewise must enter judgment on the civil conspiracy claim. If the vexatious litigation claims
survive, the Court will undertake a separate analysis of Plaintiffs’ civil conspiracy claim.
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1. The Applicable Statute of Limitations Period
The statute of limitations for a claim of vexatious litigation is three years. Balletti v.
Alter, No. CV-94-0541996-S, 1998 WL 712357, at *3 (Conn. Super. Ct. Sept. 25, 1998)
(“Actions for vexatious litigation are subject to § 52-577, the tort statute of limitations.”); Conn.
Gen. Stat. § 52-577 (“No action founded upon a tort shall be brought but within three years from
the date of the act or omission complained of.”). Section 52-577 “is an occurrence statute that, in
the absence of any claim that the vexatious litigation occurred due to maintenance of the suits or
as part of a continuous course of conduct, begins to run on the date that the vexatious litigation
was filed.” Moorman v. Khan, No. CV-09-5025473-S, 2014 WL 2922494, at *2 (Conn. Super.
Ct. May 21, 2014) (quoting Gianetti v. Greater Bridgeport Individual Practice Ass’n, No. X02CV-02-4001685–S, 2005 WL 2078546, at *7 (Conn. Super. Ct. July 21, 2005)); see also Gionet
v. Craft Magic, Inc., No. 115480, 1999 WL 417286, at *1 (Conn. Super. Ct. June 14, 1999)
(“Although a cause of action for vexatious litigation accrues upon the termination of the prior
suit in plaintiff’s favor, the statute of limitations . . . begins to run at the moment the act or
omission complained of occurs . . . [in other words,] on the date in which the prior action was
instituted or maintained.”).
Both Mr. Derzaw and the Estate argue that Plaintiffs’ claims for common law and
statutory vexatious litigation, as well as for civil conspiracy, began to run on the date of the
submission of the Grievance Complaint, June 11, 2014. Derzaw Mem. at 11–14; Estate Mem. at
13–15 (citing Conn. Gen. Stat. § 52-577; Silano v. Cooney, No. CV-18-6076642-S, 2020 WL
639261, at *4, aff’d, 207 A.3d 84 (Conn. App. Ct. 2019); Gionet, 1999 WL 417286, at *1).
Because Plaintiffs served the Complaint no earlier than July 7, 2017, see First Aff. of Serv., ECF
No. 29 (Aug. 11, 2017), Defendants argue that the claims are untimely and judgment must enter
14
in their favor. Derzaw Mem. at 12; Estate Mem. at 15.
The Court agrees. 5
“ [A] claim for vexatious litigation requires a plaintiff to allege that the previous lawsuit
was initiated maliciously, without probable cause, and terminated in the plaintiff’s favor.”
Scalise v. East Greyrock, LLC, 85 A.3d 7, 11 (Conn. App. Ct. 2014) (quoting Blake v. Levy, 464
A.2d 52, 56 (Conn. 1983)). Thus, in order “for a vexatious litigation claim to be ripe for
adjudication, the party must allege, among other facts, that the allegedly vexatious litigation has
terminated in its favor.” Id. “The application of General Statutes § 52-577 may be harsh because
‘the plaintiff may very well be foreclosed from any remedy for what might have been an
actionable injury’” if the three-year statute of limitations runs out while the underlying litigation
is still pending. Gionet, 1999 WL 417286, at *1 (quoting Burns v. Hartford Hospital, 472 A.2d
1257, 1261 (1984)). Yet, although § 52-577 “may work to preclude an action even before it
accrues[,]” courts in Connecticut have resisted adjusting their application of the statute of
limitations, in order to save such claims. Id. (“[I]t is within the General Assembly’s
constitutional authority to decide when claims for injury are to be brought.”); Ecker v. West
Hartford, 530 A.2d 1056, 1067 (Conn. 1987) (Although actions may be barred before they even
exist, “[i]t is not the function of the court to alter a legislative policy merely because it produces
unfair results.”).
In certain cases, the “continuing course of conduct” tolling provision available under
Plaintiffs argue that “[a] condition precedent to the institution of an action for vexatious litigation is that the
original action has terminated unsuccessfully,” Mot. to Stay at 8, ECF No. 347 (Apr. 8, 2024) (citing Scalise v. East
Greyrock, LLC, 85 A.3d 7, 11 (Conn. 2014)), and suggest that the statute of limitations cannot begin to run until the
termination of the underlying lawsuit because such termination is necessary to a ripe claim for vexatious litigation,
id. But that argument conflates the issue of accrual with the applicable statute of limitations period for a vexatious
litigation claim. As noted above and further addressed below, Connecticut courts have consistently recognized this
anomaly, but nonetheless have precluded claims brought within three years of the conclusion of the underlying legal
action, if they were filed more than three years after the initiation of such a lawsuit. See, e.g., Gionet, 1999 WL
417286, at *1 (acknowledging that § 52-577 “may work to preclude an action even before it accrues”).
5
15
Connecticut law may be applied to claims of vexatious litigation. See, e.g., Balletti, 1998 WL
712357, at *4 (considering whether the defendants’ “continuous course of conduct” in
maintaining the underlying, allegedly vexatious litigation tolled the statute of limitations);
Moorman, 2014 WL 2922494, at *3 (weighing whether the defendants’ “fail[ure] to withdraw
their counterclaims once they knew they were baseless” served to toll the statute of limitations);
Shea v. Chase Manhattan Bank, N.A., No. CV-96-0149647-S, 2000 WL 1196370, at *5 (Conn.
Super. Ct. July 27, 2000) (considering whether “[t]he act of maintaining a vexatious suit beyond
three years from its commencement could be a bad act that itself,” which could serve as the “act
or omission complained of for purposes of § 52-577 in the context of § 52-568” (internal
quotation marks omitted)).
In order for this tolling provision to apply, “there must be evidence of the breach of a
duty that remained in existence after the commission of the original wrong related thereto. That
duty must not have terminated prior to commencement of the period allowed for bringing an
action for such a wrong[.]” Balletti, 1998 WL 712357, at *4 (quoting Blanchette v. Barrett, 640
A.2d 74, 84 (Conn. 1994)). In the context of vexatious litigation, courts have generally
interpreted tolling to require some ongoing vexatious activity by the defendant, beyond simply
maintaining the suit. See, e.g., UHY, LLP v. Master-Halco, Inc., No. NNH-CV-10-6013492-S,
2014 WL 1011776, at *3 (Conn. Super. Ct. Feb. 11, 2014) (Because plaintiffs challenged not
only the filing of the underlying suit, but also defendants’ alleged disregard for evidence
unfavorable to their theory of liability and their solicitation of testimony that was more favorable
to their position, “the act complained of was not intended to be the singular event of the
defendants commencing a baseless action against the plaintiffs, but was also intended to include
the defendants’ continued prosecution of that baseless action. . . . [Thus,] for the purposes of
16
determining the applicability of § 52-577, the act or omission complained of was not a discrete
and isolated event, but an ongoing one that continued until the defendants withdrew their action.”
(internal quotation marks omitted)); cf Moorman, 2014 WL 2922494, at *3 (denying summary
judgment because, although the underlying, allegedly vexatious claims had been filed more than
three years before the initiation of the vexatious litigation suit, there remained “a material issue
of fact as to whether the defendants committed any acts which would support a vexatious
litigation action during the statutory period”); Balletti, 1998 WL 712357, at *4 (finding no
course of continuing conduct where “the defendants ha[d] submitted affidavits attesting to the
fact that they ceased to have any involvement in the case more than four years prior to the
bringing of the present action”).
Here, Plaintiffs did not serve the Complaint until more than three years after the filing of
the Grievance Complaint. The claims are therefore untimely, unless tolled by a continuing course
of conduct.
In the Complaint, with respect to the grievances, Plaintiffs have alleged only that “[o]n
June 11, 2014, Feinberg filed four lengthy grievance complaints against Kaufman in
Connecticut, New York, Massachusetts and the District of Columbia.” Compl. ¶ 19. 6 These
grievance complaints included “the presentation of lengthy, detailed documentation by Kaufman
and defendants Feinberg, Arnoff and Derzaw that exceeded 150 pages[.]” Id. ¶ 23. The
Complaint included no allegations regarding when and how this documentation was provided, or
describing how it could extend the commission of the original wrong. Indeed, the copy of the
Grievance Complaint included with Defendants’ motions for summary judgment is lengthy and
includes substantial documentation, all of which was submitted on June 11, 2014. See
As noted above, any claims based on grievance complaints in states besides Connecticut have been dismissed for
lack of jurisdiction. Order on MTDs at 21.
6
17
Disciplinary Compl. There is nothing in the record to suggest that additional documents or
information were provided at a later time. Moreover, in subsequent filings, Plaintiffs have not
alleged, let alone provided any basis for finding that, the process of pursuing the Grievance
Complaint could constitute ongoing conduct that would toll the statute of limitations. In short,
Plaintiffs have not shown that Defendants’ pursuit of the Grievance Complaint constituted a
wrong separable from the initial filing of the Complaint.
As to Plaintiffs’ allegations regarding Defendants’ actions in the Fee Case, that litigation
cannot form the basis of a claim for vexatious litigation because, thus far, that case has resolved
in favor of the Estate. See Judgment, Kaufman LLC v. Estate of Herbert Feinberg et al., No.
3:13-cv-1259 (VAB) (Dec. 20, 2022), ECF No. 488 at 1 (“On November 21, 2022, after
deliberation, the jury returned a verdict in favor of the defendants, Estate of Herbert Feinberg et
al and against Kaufman LLC. It is therefore ORDERED, ADJUDGED and DECREED that
judgment is entered in favor of the defendants and against plaintiff.”); Scalise, 85 A.3d at 11
(“[F]or a vexatious litigation claim to be ripe for adjudication, the party must allege, among other
facts, that the allegedly vexatious litigation has terminated in its favor.”). Additionally, the case
remains pending on appeal, meaning that it has yet to terminate fully, as required for a vexatious
litigation claim. See Scalise, 85 A.3d at 12 (concluding that “the underlying litigation upon
which the plaintiffs’ vexatious litigation claim is founded ha[d] yet to terminate fully in their
favor[,]” where some claims had been remanded back to an arbitrator, damages had yet to be
calculated, and “the underlying litigation [was] still subject to the possibility of appeal[,]” and
that the court “therefore lacked jurisdiction over the action”).
Because there is no basis to find that Defendants engaged in a course of continuing
conduct with respect to the Grievance Complaint, Plaintiffs’ claims for vexatious litigation are
18
untimely. And, as the civil conspiracy claim is derivative of the vexatious litigation claims,
Defendants are entitled to judgment on that claim, too.
Accordingly, the Court grants summary judgment as to all three claims, based on the
expiration of the applicable statute of limitations period.
2. The Merits of the Underlying Claims
Even if Plaintiffs’ claims were timely, they may still be dismissed as a matter of law, if
there was probable cause for the Defendants to file the Grievance Complaint. “[I]n the context of
a vexatious suit action, the defendant lacks probable cause if he lacks a reasonable, good faith
belief in the facts alleged and the validity of the claim asserted.” Id. In both statutory and
common law causes of action, “[t]he existence of probable cause is an absolute protection
against an action for malicious prosecution, and what facts, and whether particular facts,
constitute probable cause is always a question of law.” Falls Church Group, Ltd., 912 A.2d at
1027 (quoting Brodrib v. Doberstein, 140 A. 483, 484 (Conn. 1928)). As a result, the Court will
engage in this analysis, as well.
“Probable cause is a flexible common sense standard. It does not demand that a belief be
correct or more likely true than false.” Solomon v. Aberman, 493 A.2d 193, 196 (Conn. 1985)
(citing Texas v. Brown, 460 U.S. 730 (1983)). “The standard for determining probable cause is
not whether there are adverse rulings by the court or whether the claim is ultimately determined
to be without merit.” Schaeppi v. Unifund CCR Partners, 127 A.3d 304, 318 (Conn. App. Ct.
2015), cert. denied 128 A.3d 953 (Conn. 2015). “As is implied by its phrasing, the standard is an
objective one that is necessarily dependent on what the attorney knew when he or she initiated
the lawsuit.” Embalmers’ Supply Co. v. Giannitti, 929 A.2d 729, 740 (Conn. 2007). “[T]he
critical question [is] whether ‘on the basis of the facts known by the law firm, a reasonable
19
attorney familiar with Connecticut law would believe’ he or she had probable cause to bring the
lawsuit.” Id. (quoting Falls Church Group, Ltd., 912 A.2d at 1032).
Only those claims “which all reasonable lawyers agree totally lack merit” will be found
to lack probable cause. Falls Church Group, Ltd., 912 A.2d at 1031 (emphasis in original). “This
lenient standard for bringing a civil action reflects the important public policy of avoiding the
chilling of novel or debatable legal claims and allows attorneys and litigants to present issues
that are arguably correct, even if it is extremely unlikely that they will win . . . .” Id.
Mr. Derzaw and the Estate argue that Plaintiffs’ claims fail on the merits because the
Grievance Complaint was supported by probable cause, an “absolute protection” against an
action for vexatious litigation. Estate Mem. at 16; Derzaw Mem. at 15 (citing Falls Church Grp.,
Ltd., 912 A.2d at 1027). More specifically, in support of the unauthorized practice of law charge,
they cite Mr. Kaufman’s lack of admission to practice law in Connecticut; his performance of
legal services and provision of legal advice to Mr. Feinberg from his Connecticut home; and his
communications to Mr. Feinberg and to third parties, in which he held himself out as Mr.
Feinberg’s attorney without the involvement of local counsel. Estate Mem. at 18; Derzaw Mem.
at 20. In further support of the Grievance Complaint, Defendants cite other instances of
misconduct, including Mr. Kaufman’s failure to properly advise Mr. Feinberg regarding certain
transactional matters; misrepresentations in affidavits and applications submitted by Mr.
Kaufman to various courts; and his filing of an unredacted complaint in the Fee Case, which
included confidential information and communications protected by the attorney-client privilege.
Derzaw Mem. at 7; Estate SMF ¶ 30.
The Estate additionally argues that, even if the claims were ultimately meritless, it is
entitled to summary judgment because Mr. Feinberg acted on the advice of counsel when he filed
20
the Grievance Complaint. Estate Mem. at 21–22. Because he reasonably relied on his attorneys
to conduct an investigation and review of the relevant legal authorities in determining whether
there existed an adequate basis for filing the Grievance Complaint, Mr. Feinberg had a
reasonable belief in the validity of the claims in the Grievance Complaint, predicated on his
attorneys’ professional legal opinions. Id. at 22.
Mr. Derzaw and the Estate both emphasize that a lack of probable cause cannot be
inferred from the termination of an underlying action in favor of the plaintiff. Id. at 20–21;
Derzaw Mem. at 18. Rather, the relevant standard is whether “a person of ordinary prudence
[would] believe probable cause existed to support the remaining allegations against Kaufman.”
Estate Mem. at 20; Derzaw Mem. at 17. And, they argue that Connecticut courts have cautioned
against applying too high of a standard for probable cause, in order to avoid infringing “upon the
freedom of attorneys to pursue novel, although potentially successful, legal theories.” Derzaw
Mem. at 17 (quoting Falls Church Grp., Ltd., 912 A.2d at 1032).
Based on the facts known to Mr. Feinberg and Mr. Derzaw at the time of filing of the
Grievance Complaint, they argue, probable cause existed and the vexatious litigation claims
therefore must fail.
Plaintiffs argue that the Court cannot rule on these motions for summary judgment—and
must stay this case—because the Estate has challenged this Court’s directed verdict in the Fee
Case, which held that Mr. Kaufman did not engage in the unauthorized practice of law. Mot. to
Stay at 1–2. Plaintiffs argue that “[t]o find in the Estate’s favor the Court would have to rule
contrary to its directed verdict decision [and] contrary to the grievance panel decision” and
emphasizes that to do so would “risk reversal of the granting of the SJ motion if the directed
verdict decision is upheld by the Second Circuit.” Id. at 2. In Plaintiffs’ view, because various
21
administrative and judicial bodies have found that Mr. Kaufman did not engage in the
unauthorized practice of law, Defendants could not have had probable cause to file the Grievance
Complaint.
The Court disagrees.
The issues decided in the Fee Case and the grievance process were distinct from the issue
in this case. Although this Court and the Grievance Committee ultimately found that there was
insufficient evidence to prove that Mr. Kaufman engaged in the unauthorized practice of law, no
court has yet considered the question of whether Defendants had probable cause to file the
Grievance Complaint. The issue therefore cannot be “res judicata” and the outcome of the appeal
in the Fee Case would not alter any judgment issued in this case. See Embalmers’ Supply Co.,
929 A.2d at 740 (“[P]robable cause may be present even where a suit lacks merit. Favorable
termination of the suit often establishes lack of merit, yet the plaintiff in [vexatious litigation]
must separately show lack of probable cause.” (quoting Falls Church Group, Ltd., 912 A.2d at
1032)); Schaeppi, 161 Conn. App. at 53 (“The standard for determining probable cause is not
[based upon] whether there are adverse rulings by the court or whether the claim is ultimately
determined to be without merit.”). The Court therefore proceeds to consider whether there
existed probable cause for the filing of the Grievance Complaint.
Any determination regarding the existence of probable cause necessarily depends on the
facts and law underlying the claims at issue. Here, Plaintiffs challenge the Grievance Complaint
submitted to the Connecticut Statewide Bar Counsel. The Grievance Complaint primarily alleged
that Mr. Kaufman had engaged in the unauthorized practice of law, but also contained allegations
that he had misrepresented his bar status and disciplinary history, breached client confidentiality,
and violated the rules of professional conduct.
22
Conn. Gen. Stat. § 51-88 provides, in relevant part, that “a person who has not been
admitted as an attorney under the provisions of section 51-80 . . . shall not: (1) Practice law or
appear as an attorney-at-law for another in any court of record in this state, [or] (2) make it a
business to practice law or appear as an attorney-at-law for another in any such court[.]”
Connecticut courts have not adopted a clear definition of what constitutes the practice of
law. Robertson v. Town of Stonington, 750 A.2d 460, 464 (Conn. 2000) (“Attempts to define the
practice of law have not been particularly successful. The reason for this is the broad field
covered. The more practical approach is to consider each state of facts and determine whether it
falls within the fair intendment of the term.” (quoting Statewide Grievance Comm. v. Patton, 683
A.2d 1359, 1361 (Conn. 1996) and Grievance Comm. of Bar of New Haven v. Payne, 22 A.2d
623, 625 (Conn. 1941) (internal quotation marks omitted))). “The practice of law is not limited to
appearing before state courts; it includes giving legal advice and drafting documents regardless
of whether it occurs in a ‘court of record, ’and regardless of whether the practice is carried on as
a business.” In re Peterson, 163 B.R. 665, 672 (Bankr. D. Conn. 1994) (citing Grievance Comm.
of the Bar of Fairfield County v. Dacey, 222 A.2d 339, 345–46 (Conn. 1966), appeal dism’d, 386
U.S. 683 (1967)). Indeed, “it is clear that § 51–88 forbids the performance of any act both in and
out of court that is commonly understood to be the practice of law by persons not admitted to the
bar . . . .” Windover v. Sprague Technologies, 834 F. Supp. 560, 566 (D. Conn. 1993); Payne, 22
A.2d at 625–26.
The relevant question before this Court then is whether “on the basis of the facts known
by [Defendants], a reasonable attorney familiar with Connecticut law would believe” that they
had probable cause to allege that Mr. Kaufman, without having been admitted as an attorney,
performed any act in or out of court that is commonly understood to be the practice of law.
23
Significantly, with respect to this inquiry, “[t]he question is not whether [Mr. Feinberg or any of
his counsel] thought the facts to constitute probable cause, but whether [this Court] thinks they
did.” Falls Church, 912 A.2d at 1030 (citations and internal quotation marks omitted). The
answer is yes.
It is undisputed that Mr. Kaufman provided legal services to Mr. Feinberg between 2009
and 2010. The Employment Agreement stated that Mr. Feinberg was “hiring [Mr. Kaufman] for
the position of in house counsel for Gotham Enterprises & Affiliates, LLC[.]” Ex. 3C to Estate
SMF, ECF No. 336-4 at 13–14 (Dec. 5, 2023). The letter described the services that Mr.
Kaufman was expected to provide: “ongoing legal advice on current or future legal matters
relating to the company’s businesses or its management, providing representation on all personal
and business legal matters that may arise such as starting and pursuing legal actions, defending
legal actions against the company or its management, conducting depositions[.]” Id.
Moreover, Kaufman filed the Fee Case to collect fees allegedly owed by Mr. Feinberg for
the legal services that Mr. Kaufman had provided. See Compl. ¶¶ 1, 3; Kaufman LLC v. Estate of
Feinberg, No. 3:13-CV-1259, ECF No. 1 (Aug. 28, 2013) (describing the case as “an action for a
declaratory judgment by a law firm against former clients” based on Mr. Feinberg’s “fail[ure] to
pay Kaufman’s invoices for services”); Ruling and Order on Mot. for Summ. J., Kaufman LLC v.
Estate of Feinberg, No. 3:13-CV-1259, ECF No. 423 (May 17, 2022) (“In 2009 and 2010, Mr.
Kaufman provided legal services under the Employment Agreement, including matters both
expressly recited in the Employment Agreement and other matters that arose after it was signed.
Defs. Local R. 56(a)(1) ¶ 4.”).
Similarly, it is undisputed that, during the relevant time period, Mr. Kaufman was not
admitted to practice in Connecticut, the jurisdiction in which his office was located and from
24
which he provided his services, or New York, the jurisdiction in which Mr. Feinberg resided and
where many of the deals were centered. During this time, Mr. Kaufman sought pro hac vice
admission or an MJP exemption for work that he performed on other cases. Derzaw SMF ¶¶ 20–
21. He did not seek any such exemptions or admissions for any work conducted on behalf of Mr.
Feinberg. Id.
Additionally, based on the records provided by Defendants, it appears that Mr. Kaufman
submitted affidavits and applications to various courts that were, at the very least, misleading
regarding his bar membership status history. See Derzaw SMF ¶ 28 (“Derzaw then reviewed
various pro hac vice affidavits filed by Kaufman in the course of Kaufman’s work for Feinberg
and noticed inconsistences/inaccuracies between and amongst the various affidavits in that they
indicated that he was a member in continuous good standing of the bars of Massachusetts and the
District of Columbia but for many years he was suspended from practicing law in such
jurisdictions.”); Aff. in Supp. of Mot. for Pro Hac Vice Admission, Ex. 24 to Estate SMF, ECF
No. 336-6 at 59 (Dec. 5, 2023) (“I was admitted to practice law in the Commonwealth of
Massachusetts in 1971 where I was, at all times, in good standing, and am currently a member in
good standing of the Bar of the District of Columbia.”); Aff. of Alan H. Kaufman, Ex. 25 to
Estate SMF, ECF No. 36-6 at 62 (Dec. 5, 2023) (“I was admitted . . . to practice law in the
Commonwealth of Massachusetts in 1971 where I was, at all times, in good standing, and am
currently a member in good standing of the Bar of the District of Columbia.”); Authorized
Statement in Supp. of Mot. for Admission Pro Hac Vice of Alan Kaufman, Attorney, Pursuant to
Pa. R. Civ. P. 1012.1, Ex. 26 to Estate SMF, ECF No. 336-6 at 69 (Dec. 5, 2023) (“I have never
been suspended, disbarred or otherwise disciplined since being admitted.”). Indeed, the District
of Columbia Office of Disciplinary Counsel did find that Mr. Kaufman had misrepresented his
25
bar admission status when seeking pro hac vice admission with the assistance of local counsel,
although it accepted his explanation that these misrepresentations were the result of carelessness.
Letter Re: Kaufman/Feinberg, Disciplinary Docket No. 2014-D176, Ex. 40 to Estate SMF, ECF
No. 336-42 at 2–3 (Dec. 5, 2023). It cautioned Mr. Kaufman “that he is responsible for the
accuracy of pleadings that he signs.” Id. at 2. The Office of Disciplinary Counsel also cautioned
Mr. Kaufman regarding the disclosure of client confidences in the Fee Case, although it declined
to pursue the matter further. Id. at 3.
Finally, the docket of the Fee Case reflects that Kaufman initially filed an unsealed
Complaint referencing confidential attorney-client communications, which was later sealed by
Judge Covello upon Mr. Feinberg’s request. Derzaw SMF ¶ 27.
Based on these facts, even if the case was not strong, or likely to succeed, there was
clearly a basis for a Grievance Complaint, which would prompt the appropriate body to
investigate Mr. Kaufman’s bar membership and ensure that the services he had provided did not
violate the rules of professional conduct.
Plaintiffs argue that the Grievance Complaint was filed years after the termination of Mr.
Kaufman’s relationship with Mr. Feinberg and emphasize Mr. Feinberg’s admission that the
Grievance Complaint had been filed maliciously, in retaliation for the Fee Case. See Compl. ¶¶
28–30. But although these facts would certainly be relevant to the malice element of the common
law claim for vexatious litigation, even a finding of malice cannot defeat the existence of
probable cause. See Falls Church Group, Ltd., 912 A.2d at 1027 (“Malice may be inferred from
lack of probable cause. . . . The want of probable cause, however, cannot be inferred from the
fact that malice was proven.”).
Likewise, the dismissal of the Grievance Complaint, or the finding in the Fee Case that
26
Defendants failed to prove that Mr. Kaufman engaged in the unauthorized practice of law, does
not establish Plaintiffs’ cause of action for vexatious litigation. The Grievance Committee’s
determination that there was not probable cause to pursue the grievance does not bear on this
Court’s analysis of whether probable cause existed to file the grievance in the first place. See
Ogren v. Lassen, No. CV-12-6014603, 2013 WL 6916695, at *4 (Conn. Super. Ct. Nov. 27,
2013) (“Favorable termination of the suit often establishes lack of merit, yet the plaintiff in
[vexatious litigation] must separately show lack of probable cause.”).
In reaching this conclusion as a matter of law, the Court also has considered the cost to
Plaintiffs of Defendants’ filing of the Grievance Complaint. The Connecticut Statewide
Grievance Committee process is confidential. See Grievance Panel Comm. R. Proc. 1(D) (“All
matters received by the Committee shall be confidential except as otherwise provided by law.”).
And here, the Grievance Complaint filed against Kaufman was resolved within less than four
months. See Feinberg v. Kaufman, Grievance Compl. #14-0470, Grievance Panel Dismissal, Ex.
39 to Estate SMF, ECF No. 336-41 at 2–3 (Dec. 5, 2023) (finding, on November 17, 2014, that
“the Respondent did not: engage in the unlicensed practice of law in any jurisdiction;
misrepresent his credentials; breach the confidentiality of any privileged communications;
improperly attempt to collect legal fees; provide incompetent representation”). As a result, the
relative harm to Plaintiffs, as compared with the filing of a civil lawsuit in state or federal court,
was relatively limited.
Based on all of this information, there is no genuine issue of fact as to whether
Defendants had probable cause to file the Grievance Complaint, even if it arguably should have
been submitted earlier, and even if their subjective intent was malicious.
Accordingly, because the Court finds that there is no genuine issue of material fact as to
27
whether probable cause existed to file the Grievance Complaint, and that as a matter of law,
probable cause did exist, Defendants’ motions for summary judgment are granted as to Plaintiffs’
vexatious litigation claims. The Court need not reach the question of the Estate’s advice-ofcounsel defense. 7 And, because no substantive tort claims remain, the Court must grant summary
judgment as to Plaintiffs’ civil conspiracy claim as well.
C. The Noerr-Pennington Doctrine
The Noerr-Pennington doctrine “is derived from First Amendment principles
guaranteeing the right to petition the government.” Hartford Life Ins. Co. v. Variable Annuity
Life Ins. Co., 964 F. Supp. 624, 626 (D. Conn. 1997) It holds that “attempts to influence
legislative, executive, administration or judicial action are immune from liability by virtue of the
First Amendment right to petition the government for a redress of grievances.” In re Elysium
Health-Chromadex Litig., 354 F. Supp. 3d 330, 335 (S.D.N.Y. 2019), as amended (Feb. 7, 2019)
(citing Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 136–39
(1961); United Mine Workers v. Pennington, 381 U.S. 657, 669–70 (1965)). Noerr-Pennington
immunity does not extend to litigation that “constitutes ‘a mere sham to cover . . . an attempt to
interfere directly with the business relationships of a competitor.’” Hartford Life Ins. Co., 964 F.
Supp. at 626–27 (quoting Noerr, 365 U.S. at 144).
Both Mr. Derzaw and the Estate argue that all three counts of Plaintiffs’ Complaint are
barred by the Noerr-Pennington doctrine because the act of filing the Grievance Complaint
constituted “petitioning activity” that would qualify for Noerr-Pennington immunity. Estate
As the Court does not rely on the Estate’s advice-of-counsel defense in rendering its decision, Plaintiffs’
argument—that Defendants’ motions for summary judgment are premature and that this Court must stay any action
on those motions until Plaintiffs are able to depose Attorneys Storch and Levin—is unavailing. Mot. to Stay at 7
(“Given that Kaufman had been diligently seeking depositions of the Estate’s counsel for years before the Estate
Motion was filed, we believe that action on that motion should be stayed until such discovery is complete.”). Any
proposed depositions of Attorneys Storch and Levin are unnecessary, given that the Court has determined, as a
matter of law, that there was probable cause to file the Grievance Complaint.
7
28
Mem. at 24; Derzaw Mem. at 23–24.
Given that the Court has determined that Plaintiffs’ claims were untimely and that there
was probable cause to file the Grievance Complaint, the Court need not address Defendants’
defense of Noerr-Pennington immunity. And, because the Noerr-Pennington doctrine stems
from First Amendment principles, and application of such principles is unnecessary to resolve
the issues at hand, it is best not to address the doctrine’s application here. Cf. Spector Motor Co.
v. McLaughlin, 323 U.S. 101, 103 (1944) (“If there is one doctrine more deeply rooted than any
other in the process of constitutional adjudication, it is that we ought not to pass on questions of
constitutionality . . . unless such adjudication is unavoidable.”). But, if Plaintiffs’ claims had
been timely, or if there had not existed probable cause to file the Grievance Complaint, the
Noerr-Pennington doctrine would have immunized Defendants from liability.
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS the motions summary judgment as to all
counts of the Complaint.
The Clerk of Court is respectfully directed to close this case.
SO ORDERED at New Haven, Connecticut, this 11th day of May, 2024.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE
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