Bridgeport Harbour Place I, LLC v. Ganim
Bridgeport Harbour Place I, LLC v. Ganim
Opinion of the Court
Opinion
The plaintiff, Bridgeport Harbour Place I, LLC, brought this action against the defendants, Joseph P. Ganim, the city of Bridgeport (city), Alfred Lenoci, Sr., Alfred Lenoci, Jr., United Properties, Ltd., Eight Hundred Fifteen Lafayette Centre, LLC, United Investments, LLC, United Environmental Redevelopment, LLC, Crescent Avenue Development Company, LLC, Charles J. Willinger, Jr., Willinger, Willinger and Bucci, P.C., Joseph T. Kasper, Jr., Kasper Group, Inc., and Michael Schinella,
The following relevant procedural and factual background is set forth in the opinion of the Appellate Court. “In May, 1997, the city . . . requested proposals for the site development of a section of waterfront property known as Steel Point. A development proposal submitted by Bridgeport Renaissance Center, later renamed Harbour Place Limited Partnership and subsequently acquired by the plaintiff, was chosen by the city for the project. On November 18, 1998, the city and the plaintiff signed a development agreement. The plaintiff could not fulfill its obligations under the contract, however, due to the successive withdrawals of several financing partners, and the city terminated the contract in March, 2001.
“According to the plaintiff, it was prevented from completing the development activities specified in the contract by the unlawful conduct of the defendants. Specifically, the plaintiff alleged that the city’s mayor, Ganim, engaged in a contract steering scheme in which his coconspirators, Leonard Grimaldi and Paul Pinto, demanded bribes and kickbacks from businesses seeking city contracts and then divided the proceeds of those illegal payments with Ganim. After the contract had been awarded to the plaintiff, the plaintiff refused to participate in the scheme. Thereafter, Ganim and the other defendants allegedly conspired to deprive the plaintiff of its development rights, through corrupt and illegal means, for their own benefit. Because of the unreasonable delays, conditions and demands imposed on the plaintiff, its three financial partners withdrew
“The plaintiff filed a one count complaint on October 19, 2004, claiming that the defendants [had] violated the [antitrust act] by engaging in an illegal conspiracy in restraint of trade. [The plaintiff] sought treble damages pursuant to General Statutes § 35-35.
“The plaintiff timely filed an amended complaint. See Practice Book § 10-44. The amended complaint added one paragraph, alleging, in part, that ‘[t]he defendants’ conduct had an actual adverse effect on competition as a whole in the relevant market of undertaking and completing commercial development in the [c]ity . . . in a timely, cost efficient manner.’
“Six of the defendants filed motions to strike the plaintiffs amended complaint, claiming that the plaintiff [had] failed to allege any additional facts that could constitute a cognizable antitrust claim. The court, Stevens, J., heard argument and issued its decision on March 5, 2007, granting the motions of those defendants. In its decision, the court concluded that the allegations in the added paragraph contained only legal or conclusory claims and did not provide a factual basis for an antitrust violation. Further, the court stated that, even if it is assumed that the relevant market was as alleged in the added paragraph, the plaintiff nevertheless failed to allege any facts of a specific nature that demonstrated that the defendants’ conduct had an adverse effect on competition in that market. The court noted: ‘When taken as true, the facts set forth in the . . . amended complaint establish that the plaintiff lost its ability to develop a single property, Steel Point, due to the improper conduct of the various defendants. The plaintiff has not alleged any particular facts, however, that would indicate that this action prevented other competitors from developing Steel Point or other properties in [the city] under government contracts with the city ... or otherwise hindered competitors in such pursuits.’
“Subsequently, the [remaining] defendants filed motions to strike the amended complaint on identical grounds. The court granted the motions and . . . rendered judgment in favor of all of the defendants.” Bridgeport Harbour Place I, LLC v. Ganim, supra, 111 Conn. App. 200-203.
The plaintiff appealed to the Appellate Court from the judgment of the trial court, claiming, inter alia, that
On appeal to this court, the plaintiff contends that the Appellate Court improperly concluded that the
The following legal principles guide our analysis. “A motion to strike challenges the legal sufficiency of a
Furthermore, General Statutes § 35-44b provides that, in construing the antitrust act, “the courts of this state shall be guided by interpretations given by the federal courts to federal antitrust statutes.”
“Section 35-26 is substantially identical to § 1 of the Sherman Act; 15 U.S.C. § 1;
“A violation of [§] 1 [of the Sherman Act] generally requires a combination or other form of concerted action between two legally distinct entities resulting in an unreasonable restraint on trade. ... If a restraint
In order to establish an anticompetitive effect sufficient to avoid dismissal of a complaint for failure to state a claim, it is not enough to allege an injury to a competitor. See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S. Ct. 690, 50 L. Ed. 2d 701 (1977) (antitrust laws were designed “for the protection of competition, not competitors” [internal quotation marks omitted]). Rather, “the inquiry under the rule of reason is directed at the challenged restraint’s overall impact on competitive conditions, rather than whether a particular party has been restrained by the conduct at issue.” Berman Enterprises, Inc. v. Local 333, United Marine Division, 644 F.2d 930, 937 (2d Cir.), cert. denied, 454 U.S. 965, 102 S. Ct. 506, 70 L. Ed. 2d 381 (1981). Accordingly, “[u]nder the rule of reason, the [plaintiff bears] an initial burden to demonstrate [that] the [defendant’s] challenged behavior had an actual adverse effect on competition as a whole in the relevant market.” (Internal quotation marks omitted.) Major League Baseball Properties, Inc. v. Salvino, Inc., 542 F.3d 290, 317 (2d Cir. 2008). “Anti-competitive effects, more commonly referred to as ‘injury to competition’ or ‘harm to the competitive process,’ are usually measured by a reduction in output and
Upon review of the plaintiffs amended complaint, we conclude that the Appellate Court properly upheld the trial court’s decision to grant the defendants’ motions to strike because the complaint is devoid of facts demonstrating that the defendants’ alleged bribery scheme actually had an adverse effect on competition. Almost every paragraph of the thirty-three page amended complaint focuses on the various ways in which the defendants’ conduct injured the plaintiff individually by preventing it from completing the Steel Point project.
As the Appellate Court noted, moreover, even if the plaintiff adequately alleged in its amended complaint an anticompetitive impact on the market, federal courts have concluded that commercial bribery does not constitute a restraint of trade within the meaning of the Sherman Act. See Bridgeport Harbour Place I, LLC v. Ganim, supra, 111 Conn. App. 208. We are aware of no case in which governmental corruption was found to fall within the purview of federal antitrust law.
Recently, in Coll v. First American Title Ins. Co., 642 F.3d 876 (10th Cir. 2011), the Tenth Circuit Court of Appeals engaged in a comprehensive review of the governing case law in explaining why commercial bribery of government officials does not constitute a
“Notwithstanding this deceptive and unethical business conduct, the [c]ourt held that the Sherman Act did not apply to proscribe it. See [id., 140-41]. [The court in Noerr stated that] [i]nsofar as [the Sherman]
“In conclusion, [the court in] Noerr noted that the fight between the railroads and the truckers appears to have been conducted along lines normally accepted in our political system, except to the extent that each group has deliberately deceived the public and public officials. And that deception, reprehensible as it is, can be of no consequence so far as the Sherman Act is concerned. [Id., 144-45].
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“More recently, the [United States] Supreme Court, relying on its reasoning in Noerr, held that the Sherman Act did not proscribe private citizens’ conduct undertaken to influence government action, even if that conduct involved conspiracy or bribery. In [Columbia v. Omni Outdoor Advertising, Inc., supra, 499 U.S. 365], a jury found that a billboard company conspired with city officials to obtain legislation that protected the billboard company’s monopolization of the billboard market within the city [of Columbia, South Carolina] and that restrained the business of a competitor billboard company. See [id., 368-69]. Nevertheless, the . . . [c]ourt held that the Sherman Act did not apply to such conduct, which was undertaken to influence governmental action. See [id., 384]. In reaching this conclusion, the [c]ourt first rejected a conspiracy exception to Parker state-action immunity. See [id., 374-75]. Since it is both inevitable and desirable that public officials often agree to do what one or another group of private citizens urges upon them, such an
“[Columbia] went further, rejecting exceptions to Parker and Noerr immunity even for conspiracies involving corruption. See [id., 376-79]. A conspiracy exception narrowed along such vague lines is similarly impractical. Few governmental actions are immune from the charge that they are not in the public interest or in some sense corrupt. . . . The fact is that virtually all regulation benefits some segments of . . . society and harms others; and that it is not universally considered contrary to public good if the net economic loss to the losers exceeds the net economic gain to the winners. [Id., 377]. . . .
“[To] carve out a special exclusion to [the] Noerr-Pennington
As the foregoing case law makes clear, the plaintiffs allegation that the defendants took bribes and kickbacks in exchange for steering public contracts does not state a cognizable antitrust claim.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
Harbor Communications, Inc., and HNTB Corporation also were named as defendants. The plaintiff subsequently withdrew its complaint against Harbor Communications, Inc., and the action subsequently was withdrawn as against HNTB Corporation.
General Statutes § 35-26 provides: “Every contract, combination, or conspiracy in restraint of any part of trade or commerce is unlawful.”
General Statutes § 35-35 provides: “The state, or any person, including, but not limited to, a consumer, injured in its business or property by any violation of the provisions of this chapter shall recover treble damages, together with a reasonable attorney’s fee and costs.”
“The added paragraph . . . [provides]:‘The defendants’conduct had an actual adverse effect on competition as a whole in the relevant market of undertaking and completing commercial development in the [c]ity ... in a timely, cost efficient manner. The defendants’ conduct as alleged added the extra cost of corrupt paying as demanded. The corruption and payback system of Ganim, Grimaldi and Pinto, which operated with the cooperation of . . . [city] officials under . . . Ganim, including . . . corporation counsel, leaders of the [c]ity [c]ouncil, its economic director, finance director, zoning officials, comptroller and others caused the market for the commercial development as a whole to be adversely affected.’ ” Bridgeport Harbour Place I, LLC v. Ganim, supra, 111 Conn. App. 201 n.3.
Paragraph twenty-seven of the plaintiffs amended complaint provides in relevant part; “Ganim, acting through his office and through and in cooperation with various municipal officials and employees he influenced through corrupt payments of extraordinary benefits, appointments, awards of city contracts to relatives, was engaged in a massive, hidden conspiracy with the defendants and others, Willinger, Lenoci Sr., Lenoci Jr., Pinto, Grimaldi, Kasper and Schinella to illegally profit from the awarding and completion of contracts with the [c]ity .... The corrupt agreements included but were not limited to those involving the sewer treatment facility, the baseball park, the hockey stadium, the removal of asbestos, the public relations campaign for [the city], the clean and green program for the removal of distressed buildings, the redevelopment of Father Panik [V]illage, the redevelopment of Steel Point and the awarding of contracts for legal services, all in the restraint of trade . . . .”
See Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 15-16, 664 A.2d 719 (1995) (“we follow federal precedent when we interpret the [antitrust] act unless the text of our antitrust statutes, or other pertinent state law, requires us to interpret it differently”); see also Brown & Brown, Inc. v. Blumenthal, 297 Conn. 710, 727, 1 A.3d 21 (2010) (“[t]he antitrust act intentionally was patterned after federal antitrust law”).
We note, moreover, that, because Connecticut is a fact pleading state; see, e.g., Sullins v. Rodriguez, 281 Conn. 128, 147, 913 A.2d 415 (2007); see also Practice Book § 10-1; this point has particular pertinence to cases, like the present one, involving claims under this state’s antitrust laws.
Title 15 of the 2006 edition of the United States Code, § 1, provides in relevant part: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. . . .”
The following allegations of the amended complaint are representative of the entire complaint: “40. On or about January 27, 1999, as a result of the illegal conspiracy in restraint of trade by the defendants, the [plaintiffs] development partner . . . withdrew from the Steel Point project.”
“46. In April of 1999, less than one month after the known extension of the development agreement with the plaintiff, Pinto and the defendants Lenoci Sr., Lenoci Jr., and Ganim agreed to select and cause other officials and employees to sabotage the [plaintiffs] plan to develop the Steel Point site, in direct derogation of the [plaintiffs] rights under the development agreement.”
“51. The defendant . . . Willinger intentionally . . . and in bad faith inserted commercially unreasonable terms and conditions into the [Steel Point] agreement, intentionally delayed the completion of the agreements, participated in a scheme to steer [c]ity contracts on the project to entities who would pay fees to [the] conspirators, and who would act to further delay and interpose unfair development conditions [on] the Steel Point project.”
“53. From May of 1999 through January of 2000, while the plaintiff was attempting in good faith to complete the transaction, [certain of the defendants] were engaged in a conspiracy in restraint of trade or commerce to deprive the plaintiff of its rights.”
“56. Unaware of the fact that the mayor [Ganim] . . . had entered into a corrupt agreement to block and [to] interfere with [the plaintiffs] contractual*217 rights, the plaintiff continued to try to complete the Steel Point [p]roject, spending large sums of money on all of the various components of the project . . . .”
“65. The defendants . . . Lenoci Sr. . . . Lenoci [Jr.] . . . Schinella, and the related Lenoci [corporations . . . engaged in an illegal conspiracy in restraint of trade in one or more of the following ways:
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“d) by engaging in a myriad of illegal schemes to enrich the mayor [Ganim] and other [city] officials ... in order to obtain the cooperation of those officials in frustrating the development attempts of the [p]laintiff, [and]
“e) by providing the chief elected official of the [c]ity . . . with items of value in order to secure his cooperation in frustrating the development attempts of the plaintiff.”
“67. The defendants] . . . Kasper and Kasper Group [Inc.] engaged in a conspiracy in restraint of trade in one or more of the following ways
“a) by attempting to insert the Lenoci defendants into the Steel Point project;
“b) by paying bribes to the mayor [Ganim] . . .
“c) by conspiring with the Lenocis and the Lenoci controlled entities to steal the [plaintiffs] development project
“d) by deceiving the plaintiff and hiding from the plaintiff the illegal conspiracy [and]
“e) by paying sums of money to other conspirators in support of the conspiracy . . . .”
For example, paragraph twenty-eight of the amended complaint provides in relevant part: “At all times mentioned herein, and for a long time prior to the incidents described in this complaint, Pinto and Grimaldi received
Paragraph thirty-three of the amended complaint provides in relevant part: “Unlike other businesses in the [c]ity ... the plaintiff refused to pay ... or associate itself with the members of the conspiracy, in order to complete [the Steel Point] development project. As a result, the [defendant . . . Ganim, through the members of his administration, paid consultants . . . Willinger and the Willinger firm prevented [the] [p]laintiff from completing the [Steel Point] transaction.”
Paragraph thirty-six provides in relevant part: “During the period of the plaintiffs development of Steel Point, the defendant Willinger represented the defendants Lenoci Sr., Lenoci Jr., and their related companies, and Pinto, Grimaldi, Kasper and related companies, and Ganim . . . received from the defendants [money] extorted from persons seeking to do business with the [c]ity . . . .”
United Mine Workers v. Pennington, 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965).
This does not mean that there can be no remedy for the plaintiff’s injuries. Indeed, the plaintiff brought a separate action against several of the defendants for, among other wrongful acts, breach of contract, tortious interference with contractual relations, and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. See Bridgeport Harbour Place I, LLC v. Ganim, 131 Conn. App. 99, 104, 30 A.3d 703 (2011). The jury rendered a verdict in favor of the plaintiff on several counts and awarded the plaintiff $366,524 in damages. Id., 111-12. Thereafter, the court awarded the plaintiff punitive damages, attorney’s fees and costs in accordance with the jury’s findings on the CUTPA claim. Id., 113. The Appellate Court recently affirmed the judgment in that case. Id., 178. Federal authorities also successfully prosecuted several of the defendants for bribery, mail fraud and violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. (1994), in addition to other crimes.
Reference
- Full Case Name
- BRIDGEPORT HARBOUR PLACE I, LLC v. JOSEPH P. GANIM
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- 10 cases
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- Published