THE STATE OF NEW HAMPSHIRE

JUDICIAL BRANCH
SUPERIOR COURT
Rockingham Superior Court Rockingham Cty Courthouse/PO Kingston NH 03848-1258

Telephone: (603) 642-5256

Box 1258

TTY/TDD Relay: (800) 735-2964 http: //www.courts. state.nh.us

NOTICE OF DECISION
Peter G. Callaghan, ESQ Preti Flaherty Beliveau & Pachios PLLP 57 North Ilain Street
PO Box 1318 Concord NH 03302-1318

Case Name: Case Number:

Autonomy NA Hol'dlngs Inc. v Virginia Briody

218-2012-CV-01056

Enclosed please find a copy of the court's order of November 30, 2012 relative to:
Final Order

November 30, 2012

Raymond W. Taylor
Clerk of Court

(398) C: Department of Labor;

Kristin M. Yasenka,

ESQ

NH

J B-2503-S (07/01/2011)

ROCKINGHAM COUNTY
2012-CV-1056
V VIRGINIA BRIODY

SUPERIOR COURT

AUTONOIIY NA HOLDINGS, INC.

FINAL ORDER

This case presents an appeal from a decision of the New Hampshire

Labor which ruled
in

Department

of

favor of the defendant,

the employee, on a wage claim, to which

officer at the Department

the plaintiff,
conducted

the employer,

objects.

A hearings

of Labor

a two day hearing on the defendant's

in

wage claim and thereafter wrote a

seven page detailed Order

favor of the defendant dated July 16, 2012.

The plaintiff's

appeal is filed pursuant

to RSA 275:51 (V).

In pertinent

part that

Statute reads as follows:

by the decision (of the Labor Department) may appeal to the Superior Court not later than twenty days from the date thereof by Petition, setting forth that the decision is erroneous, in whole or in part, and specifying the grounds upon which the decision is claimed to be in error. Upon the filing of an appeal, the Commissioner shall transfer to the Court the record of the proceedings or a certified copy thereof. The scope of review by the Superior Court shall be limited to questions of law. After hearing and upon consideration of the record, the Court may affirm, vacate or modify in whole or in part the decision of the Commissioner, or may remand the matter to the Commissioner for further findings".
"Any party aggrieved

Both parties concede that Superior Court review of a Labor Department

very limited.

decision is
However the

The appealing

party is not entitled to a de novo hearing.

parties appear to have a disagreement

as to the scope of review and

The defendant

authority

of the

Superior Court

in

the event that

it

finds factual error.

cites the case of

Demers Aaencv v Widnev 155 N.H. 658 (2007) for the proposition that appeals of Labor

Department

decisions to the Superior Court must be limited to questions of law, not fact.

The plaintiff cites the case of Miller v Blackden 154 N.H. 448 (2006) for the proposition
that Appellate Courts (which presumably
would include the Superior Court in

cases of

Labor Department
and uphold

appeals) review sufficiency of the evidence claims as a matter of law

and rulings
in

the findings

of the Trial Court (here the Labor Department)

support
finds

unless they are lacking

plaintiffs

evidential
if

or tainted
factual

by error of law.

Thus the

position

is that
it

the

Court

errors

made

by the

Labor

Commissioner

then

has the authority pursuant

to the appeal statute to set aside a

Labor Department
This Court

decision.

has always
Yet
in

looked

upon

its authority
it

to review

Labor Department

decisions narrowly.
simply misunderstood

the rare case where

has found that the Labor Department

the facts or failed to properly apply the evidence, such an error

it

was quasi factual and legal and therefore

makes such a finding
lacking in evidentiary
in

had the authority to

set

it

aside. This Court

rulings are

this

case, concluding that the Labor Commissioner's

support.

The Court does not lightly reverse a decision made by the Labor Commissioner.
This is particularly
literary six inches

true in a

case

which involved two days of testimony

and a review of
and the Court
all

of documents.

However the hearing was transcribed

It

did have an opportunity

to review the testimony of all the parties. to the Labor Department

also was given

of

the exhibits that were submitted

examine.

which the Court did carefully

it

Thus this Court had the exact same evidence available to

as

did the Labor

Department.
This Court held a hearing on the plaintiffs appeal on November
hearing the plaintiff argued that the most important

21, 2012.

At that

document

submitted

to the Labor

Department

was an Affidavit of one Stephen Chamberlain.

Mr. Chamberlain

The Affidavit is dated

April

13, 2012.
-the plaintiff.

resides

in

England and did not appear or testify on behalf of

Nonetheless

the Court has examined the specifics of the Affidavit and also
and it does find that Mr. Chamberlain,

the related documents

plaintiff, explained
in

an accountant

for the

precise detail as to why the defendant was properly compensated

under the employer's written plan for the work she did.

Independently,

on examination

of the other documents

and

review of the Labor

little

Department
regarding

hearing

transcript,

the Court finds that there

was very wage claim.

known

dispute

the pertinent

issues that relate to the defendant's

for a computer

Both agreed

that the defendant

worked

sales company

as Computer

Associates, Inc. for approximately

plaintiff on or before
until

six years before that company was bought out by the

June 1, 2010. She was employed by the plaintiff from June 8, 2010
While working
known

November

17, 2010 when she was terminated.

sold
It

for Computer

Associates,
Investments

Inc., the defendant

in

a contract to an entity
was multi-year contract.
with

as Pioneer

September of 2009.
continuing

Computer Associates,
its

Inc. had certain

obligations

respect to that contract throughout

pendency.

Pursuant to her employment

agreement with Computer Associates, Inc., the

and
in

defendant was entitled to a commission for the sale to Pioneer Investments

fact

was paid that commission

in

mid-November

of 2009.

The commission

amount

exceeded $ 100,000.00. The defendant's

of the hearing transcript

admission

of that fact is reflected on page 80

for day one before the Labor Department.

Said page also

records the following question and answer:

"Q. So on that contract you weren't paid a commission based on any face value of the contract? You were paid a commission based on the first three vears of the net contract value (emphasis added);
Is that right?"

A. Correct.
In

fact the contract which the defendant

negotiated

with

Pioneer on behalf of
It ran for

Computer

Associates,

Inc. did not remain

in

existence for three years.

approximately
plaintiff,

six months only. When Computer Associates, Inc. was bought out by the

the defendant

was instructed

to negotiate a new contract with Pioneer at a

higher cost. The defendant did her job well and her efforts resulted in Pioneer signing a

new contract with the plaintiff

in

September of 2010. That contract total was less than

with Computer

$500,000.00 more'than the first contract that Pioneer signed

Inc. At some point after demanding

Associates,

her commission for the second sale to Pioneer, the

insisted
upon by Pioneer was that they be forgiven

defendant

knew that a condition

from having

to pay the balance due on the first contract that Pioneer signed with

Computer

Associates, Inc. That balance due was approximately

1.2

million

dollars.

Thus when the amount

due on the first Pioneer contract (for which the defendant

received a

full

commission)

was deducted

from the amount

of the second Pioneer

contract, the so-called "new contract value" amounted

to less than $ 350,000.00. The

contract value was the basis for the payment of a commission.

The defendant
commission

argued, and the Labor Department

found, that the amount

of the

due her from the second Pioneer sale was based upon the total amount of
in

that second contract, to wit, $ 1.975 million dollars. Relying on the formula set forth
her

compensation

plan,

the

defendant

claimed

a commission

of $ 97,806.62.

Conversely,

the plaintiff determined

Ms. Briody's commission

to be $ 16,721.91 based

on the new contract value of the second Pioneer contract to the plaintiff company.

The

Labor Commissioner

found in favor of the defendant

in its

regarding this dispute.

The plaintiff addresses this issue

brief to this Court. Because the Court could

not analyze the issue more clearly than the plaintiff

it

reprints herein the plaintiffs

conclusion:

"The Department of Labor made two critical errors in this case when the hearing officer based the commission amount on the face value of the sale to Pioneer. First, in using the face value ($ 1.975 million) rather than the net new contract value ($329,117. 65), it failed to consider and apply the express terms of the contract, Autonomy's Compensation Plan for commissioned sales representatives. The Compensation Plan limited Ms. Briody's commissions to revenue "recognizable" under U.S GAAP accounting rules and based on net "new contract value." Second, the Department of Labor ignored the language of the September 2010 contract between Autonomy and Pioneer Investments ("Pioneer Two"), on which Ms. Briody's commission claim was based. Pioneer Two expressly cancelled a 2009 contract with the same customer for the same services ("Pioneer One" ) and forgave approximately $ 1.2 million in payments due under the earlier contract. As a result, the corn'pany was required, as a matter of accounting rules, to deduct from its books the value of the unpaid original contract. Consistent witih both the language of the Compensation Plan and established company and industry practice, Autonomy properly calculated Ms. Briody's commission using the nef value of the new contract".
parties'ritten

Essentially the defendant

asserts two reasons for which she is entitled to be paid

to wit,

the sum which was awarded to her for lost wages by the Labor Commissioner,

$97,806.62. First, she does not believe that there is any connection between the two
contracts which she negotiated with Pioneer, the first being for the benefit of her
initial

employer Computer Associates, Inc., and the second being for the benefit of her second

employer, the plaintiff.

At the hearing held before this Court on November

21, 2012, the

be allowed to

Court inquired

of defendant's

counsel as to why the defendant

should

retain the full commission

that she was paid for her obtaining the first Pioneer contract
it

when in fact Pioneer only paid a fraction of what was due on that contract before

was

cancelled

in

2010. Defense counsel conceded that

inasmuch

as Computer Associates,
the defendant

Inc. did not receive the full value of the first Pioneer contract, although

was paid as

if

Computer

Associates, Inc. did receive the

full

full

value of the multi-year

contract, perhaps the defendant did not earn the

commission she received. However

portion

defense

counsel

argued

that

any

remission

of any

of the defendant's
not the
all

commission
plaintiff.

payment

should

be up Computer Associates,

Inc. to demand,
it

Yet as the plaintiff pointed out at the hearing, because

acquired

of the

assets and liabilities of Computer

remittance
from the defendant

Associates,

Inc.,

it

was entitled
paid to her

to receive any

regarding

the commission

as a result of the

first sale to Pioneer. The Court finds that logic hard to dispute.

On page

6 of the Labor Department decision the

following appears:

"Although the testimony shows that the Pioneer I project was tied in with Pioneer II when the final costs were calculated. This does not appear to be the case. The Wage Claim is valid in the amount

of $ 97,806,62."
While appearing

to concede that the testimony showed a connection between the

did not

two Pioneer contracts, the Labor Commissioner

so find. There

is no evidentiary
it would

basis for that conclusion.

mean that the defendant

If the Labor Commissioner's

decision is to stand then

received double commissions from Computer Associates, Inc.

and the plaintiff for the amount that she brought in from Pioneer Investments.
no legal or equitable

There is

basis for her entitlement

to the amount

found

by the Labor

Commissioner.

The defendant's

second argument as to why she should be paid a

full

commission

on the gross amount of the second Pioneer contract was the fact that as she worked on

securing that contract between June and November

of 2010 she continued to receive

assurances from co-employees and her respective bosses at the plaintiff company that

she would be paid a full commission on any new contract that she was able to negotiate
with

Pioneer.

Even

if

that were true, and the transcript suggests that the evidence of

that fact was more general

than specific, such a promise would

be contrary to the

compensation
Moreover

plan that she had in writing with her employer.

as the

plaintiff

points out, she did not take on the responsibility

of

obtaining a second contract with Pioneer on

a strict commission basis. Instead she was

by her

a salaried employee

receiving

$ 150,000.00 a year and she was directed

employer to work on the Pioneer contract during the six months that she was employed
by the plaintiff.

Any commission

earned would

be

in addition

to the amount

she

received as her annual salary.

The defendant's
in

defense to this argument

is that had

she known that she would be receiving,

contract negotiated
.which would
with

her mind, a reduced commission for any new

Pioneer, she would have elected to work on other projects

No specifics were provided
with

have earned her a higher commission.

respect to that allegation.

However, as her employer the plaintiff had the right to direct

the defendant to pursue any contract which the employer deemed worth pursuing.
there was no reliance to her detriment regarding the defendant's

Thus

decision to work on the

Pioneer contract as opposed to some other contract that may have been available.
Upon review of all of the testimony

given at the Labor Department

hearing,
in

the

voluminous

exhibits presented to the Labor Department,

the pleadings filed

the within

appeal, and the oral argument

made by counsel

in

support of their respective positions

before this Court,

it finds

and rules that the Labor Commissioner

made an error of both

fact and law

in

deciding that the defendant

sustained

her burden of proving she was

entitled to a commission

of $ 97,806.62 as a result of the procurement

of the second The Court finds

Pioneer contract. Accordingly that decision is set aside and vacated.

that based
upon

her compensation

plan

formula

as set forth

in

the Chamberlain

Affidavit, the defendant

was paid the appropriate commission for this endeavor.

On the subject of liquidated

following in his decision:

damages, the Labor Commissioner

reported the

"It is also found that the employer went out of their way to take credit for the sale and then to cut the profit down. To do so shows that the employer performed a willful act to reduce the commission owed to the claimant. The only reason to do this was to increase profits and show better numbers on the quarterly report. The finding is for liquidated damages in the amount of

$97,806.62."
A review of the record before this Court suggests
promptly

that

in

fact the plaintiff did not

on the second

pay to the defendant the amount that was due for a commission

Pioneer contract. Accordingly, the Court finds that there is a factual basis for an award

of liquidated damages. However the amount of those liquidated damages is reduced to

the amount which the Court has concluded was due the plaintiff as a commission, to wit,

$ 16,721.91.
The defendant has requested an Order from this Court for attorney fees
defend these proceedings.
plaintiff
in having

to

That request is denied given the fact that

in

large part the

has prevailed

in

this

case.

The parties are instructed that the within Order is applicable only to the defendant's
wage claim. The Order of the Court is made
in

strict reliance upon the law as set out

in

RSA 275, our employment

statute.
believed

The evidence

before the Labor Commissioner

terminated
largely

suggests

that the defendant

that she was wrongfully

because the plaintiff did not wish to pay her the commission which she felt she was due
and also because of the timing of her departure
from the company. The plaintiff claims

the termination

was as a result of negative E-mails the defendant

has a wrongful
termination

sent. To the extent

that the defendant

complaint,

that must be filed as a that none of the

separate action.

Should she elect to do so, the Court determines

findings

contained

in

the within Order would be applicable

to any such claim as the

termination
in its

Court has not considered

the defendant's

allegations

of wrongful
in this

decision making

process on the limited issue presented

case, the defendant's

statutory wage claim.

So Ordered.

1V Date

k~~

EM 2/Q,
Kenneth R. McHu@ Presiding Justice