Opinion
No. CV-03-0476159 S
October 28, 2005
MEMORANDUM OF DECISION
The plaintiff brought this action against the defendant to recover sums allegedly due pursuant to a contract to advertise the defendant's business in the Yellow Pages. The defendant has filed an answer, special defenses and several Counterclaims. The plaintiff has now moved for summary judgment as to the First Count of the Counterclaim, which alleges a violation of the Connecticut Antitrust Act, General Statutes § 35-24, et seq. It also seeks summary judgment as to the Second Count of the Counterclaim, which alleges a violation of the Connecticut Unfair Trade Practices Act Statutes § 42-110(b) et seq. With regard to the First Count, the plaintiff contends that there are no material facts in genuine dispute as to the absence of any evidence of the defendant's principal allegations that the plaintiff contracted, combined or conspired with anyone so as to violate Connecticut's Antitrust Act. The plaintiff's contention as to the Second Count is that the CUTPA claim is barred by the statute of limitations.
It is undisputed that the defendant sought to advertise his florist and casket businesses in the plaintiff's Yellow Pages. Although he requested that his ads be published under the heading "Funeral Directors," the plaintiff refused because the defendant was not a licensed funeral director. The plaintiff also refused to publish the defendant's advertising under the heading "Funeral Plans — Prearranged" for the same reason. Instead, the defendant's advertising was published under the heading "Funeral Director's Equipment and Supplies." The defendant contends that his business has been damaged by the plaintiff's actions. He has refused to pay for this advertising, and the plaintiff has therefore instituted this lawsuit. The plaintiff, as mentioned, now seeks summary judgment as to the Antitrust and CUTPA Counterclaims for the reasons previously stated.
As for the first count of the Counterclaim, the plaintiff offered the defendant's own deposition testimony, which was to the effect that he did CT Page 13938-ag not know with whom, if anyone, the plaintiff "contracted, conspired or combined" in connection with the defendant's Yellow Pages advertising. The Plaintiff also submitted the affidavit of John Sancomb, Manager of SNET's Process Management and Standards Group, to the effect that SNET's advertising standards required that a potential advertiser had to establish that he was qualified to be listed under a particular heading, and that he consulted with no outside agencies, individuals or companies, including funeral directors, in reaching his decision not to permit the defendant to advertise under the headings "Funeral Directors" and "Funeral Plans — Prearranged."
Connecticut General Statutes § 35-27 is patterned after Section 2 of the Sherman Act, 15 USC § 2. It enumerates three separate offenses: (1) "Contract, combination or conspiracy to monopolize"; (2) "Monopolization"; and (3) "Attempt to monopolize." The first offense requires a plurality of actors. Shea v. First Federal Savings and Loan Association of New Haven, 184 Conn. 285, 304 (1981).
Section 35-26 is substantially identical to Section 1 of the Sherman Act; 15 USC § 1 applies to contracts, combinations or conspiracies in restraint of trade or commerce. Id. at 305. The essence of a violation of Section 1 of the Sherman Act is a concerted action. For its provisions to apply, two or more "persons" must agree to act together. Id., citing United States v. Wise, 370 U.S. 405 82 S.Ct. 1354, 8 L.Ed.2d 590 (1962); Ernest W. Hahn, Inc. v. Codding, 615 F.2d 830, 844 (2d Cir. 1980).
Section 35-28 has no specific counterpart in the Federal Antitrust laws. It codifies federal case law concerning certain "per se" violations of the Sherman Act, notably Section 1. Elida, Inc. v. Harmor Realty Corporation, supra 177 Conn. at 227. An individual or corporation cannot alone contract, combine, or conspire to violate the Antitrust laws. Thus, "a violation of § 35-28 . . . requires a plurality of actors." McKeown Distributors, Inc. v. Gyp-Crete Corporation, 618 F.Sup. 632, 645 (1985) (District of Connecticut) citing Shea v. Federal Savings and Loan Association of New Haven, supra 184 Conn. at 306. No antitrust violation exists where a company unilaterally elects to exercise its rights to publish an advertisement under the heading in which it deems adheres to its policies and advertising standards. See, e.g., McKeown Distributors, Inc. v. Gyp-Crete Corporation, supra, 618 F.Sup. at 645, citing Monsanto Co. v. Spray-Rite Services Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984) (holding that a manufacturer has a right to deal, or refuse to deal, with whoever it likes, as long as it does so independently.)
Although the instant motion for summary judgment was filed in CT Page 13938-ah mid-August of 2005, the defendant did not fax-file his opposition brief until, at the earliest, the Wednesday before the October 24, 2005 short calendar argument, and that brief had yet not been made part of the court's file by the time of oral argument. The defendant did not file the documents on which he relied as his basis for opposing summary judgment until the morning of the hearing itself. None of the documents which he has filed, however, in any way support his opposition. Those documents include 1) copies of the advertising contracts between the parties, 2) an unsworn letter from another funeral director to defendant's counsel in response to counsel's request, which would not have been admissible as evidence in its current form, stating his belief that "The Yellow Page Companies need to be more diligent in there [sic] efforts to verify headings"; 3) an amicus brief filed by the Federal Trade Commission in an Oklahoma federal antitrust case, also not admissible evidence in connection with the motion for summary judgment; 4) a complete copy of the deposition transcript of John Sancomb; and 5) a complete copy of the deposition transcript of John Crouse, a former SNET employee. The contracts are not relevant to the anti-trust claim, the letter and the amicus brief are inadmissible as evidence, and the Sancomb transcript only supports his affidavit as submitted by the plaintiff. The Crouse transcript provides evidence of conversations within SNET about the propriety of listing the defendant's advertising under "Funeral Directors" and "Funeral Plans — Prearranged," and indicates concern about the potential reaction of funeral directors if such services were listed under such headings, but it provides no evidence at all that the plaintiff or any of its employees ever "contracted, conspired or combined" with anyone.
In addition, at oral argument, the defendant offered a purported "affidavit" signed by the defendant's attorney. The document was, in fact, unsworn. In addition to the fact that the "affidavit" was not an affidavit, the document consisted of 1) hearsay statements reported by the attorney based on conversations he claims to have had with various individuals about their concerns over the plaintiff's Yellow Page advertising practices; and 2) his own recollections of what he heard at certain of the depositions taken in this case. The court declined to consider the purported "affidavit" because it was unsworn, but even if the court had considered it, the document would have added nothing to the defendant's efforts to oppose summary judgment on the first count of the Counterclaim. Not since the days of the old "Perry Mason" television series has a piece of proffered evidence been as "irrelevant, incompetent and immaterial" as the purported "affidavit" submitted by defendant's counsel.
As the evidence in support of summary judgment was uncontradicted by CT Page 13938-ai any admissible evidence, the court finds that there are no material factual issues in genuine dispute as to the First Count alleging a violation of the Connecticut Antitrust Act, and that the plaintiff is therefore entitled to judgment on the First Count of the Counterclaim as a matter of law.
At oral argument, the plaintiff asked the court to consider imposing sanctions against the defendant for an affidavit filed in bad faith, as provided in Practice Book § 17-48. Upon review of the document in question and having heard defense counsel's attempt at an explanation, the court is of the opinion that the filing of the "affidavit" was extraordinarily shoddy practice, but that the court lacks a basis for finding the existence of bad faith. The court therefore declines to impose sanctions. On the other hand, by attempting to insert himself into the summary judgment proceeding as a witness, via his purported "affidavit," defendant's counsel may have violated Rule 3.7 of our Rules of Professional Conduct, which provides:
Rule 3.7. Lawyer as Witness
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) The testimony relates to an uncontested issue;
(2) The testimony relates to the nature and value of legal services rendered in the case; or
(3) Disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.
Because counsel placed himself in a position, avoided only by the court's refusing, sua sponte, to consider the "affidavit," of being an advocate for his own veracity as a witness, the court is of the view that counsel should be referred to Statewide Bar Counsel for review, and a copy of this Memorandum of Decision will therefore be sent to Statewide Bar Counsel.
The plaintiff's claim for summary judgment as to the Second Count is CT Page 13938-aj grounded in its contention that the CUTPA claim is barred by the three-year statute of limitations. General Statutes § 42-110g(f). It is undisputed that the initial publication of the Yellow Pages edition in question occurred on April 15, 1999 and that the defendant did not interpose his CUTPA Counterclaim until March 27, 2003, nearly four years after the date of publication. It is now well-settled that in CUTPA cases, the statute of limitations runs from the date of the violation, rather than the date of discovery, and the plaintiff contends that the violation in this case could have occurred no later than the date of initial publication. Although the defendant endeavors to argue that the publication of the Yellow Pages should be viewed as a "continuing course of conduct," such that the date on which the statute of limitations begins to run would the day before the publication of the subsequent edition, the defendant offers absolutely no legal or evidentiary support for such a contention.
The court notes that on this issue the defendant cited numerous cases in support of propositions for which those cases do not stand. Indeed, many of them stand for contrary propositions. Most significantly, the defendant also cited Fichera et al v. Mine Hill Corp. et al, 207 Conn. 204, 541 A.2d 472 (1988), but referred only to the trial court decision, which would have supported the defendant's position had it not been reversed on appeal, a fact not mentioned by defendant's counsel in his memorandum of law. The defendant's brief reads:
In Anthony S. Fichera et al. v. Mine Hill Corporation et al., the plaintiff's purchased real property based upon the defendants' representations as to recreation facilities that we[re] to be built on the property. Anthony S. Fichera et al. v. Mine Hill Corporation et al. 207 Conn. 204; 541 A.2d 472 (1988). The plaintiffs alleged that defendants' conduct was an unfair trade practice under CUTPA. The defendants argued that the CUTPA cause of action was barred by the statute of limitations. The trial court rejected the statute of limitations defense, citing Handler v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d 793 (1957), which held "[w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed."
The defendant makes absolutely no reference to the Supreme Court's actual holding. Fichera makes it quite clear that it is the date of the violation that triggers CT Page 13938-ak the statute of limitations in CUTPA cases, and that absent evidence of any continuing duty on the part of the CUTPA defendant, there can be no valid claim of a "continuing course of conduct," the last act of which would trigger the statute of limitations. The defendant has provided no evidence of any continuing duty on SNET's part following its decision to publish under the headings previously indicated and not under those sought by the defendant. Citing no law, he argues that the last monthly payment date for the advertising should trigger the statute, and citing no evidence, he argues that it is possible that the Yellow Pages books were distributed later than their date of publication, thereby creating an issue of fact. All of these contentions are unavailing.
Counsel's conduct with respect to his brief in opposition to the summary judgment claim on the CUTPA count raises serious questions about whether he has violated Rule 3.3(a)(1) regarding "Candor to the Tribunal," which states that "[a] lawyer shall not knowingly . . . [m]ake a false statement of material fact or law to the tribunal . . ." By citing the Supreme Court decision in Fichera but giving the court only the repudiated trial court opinion as though it represented the Supreme Court's holding, counsel appears to have made a false statement of law that, were the court and opposing counsel not already aware of the Supreme Court's decision, could have had the effect (if not the intent) of misleading the tribunal. The court will therefore request that Statewide Bar Counsel review this issue as well.
The plaintiff has demonstrated that there are no material facts in genuine dispute as to the date of the alleged CUTPA violation and the date on which the defendant asserted his CUTPA claim. Because the latter date is indisputably beyond the three-year statute of limitations, the plaintiff is entitled to judgment on this count as a matter of law.
For all of the above reasons, the motion for summary judgment is granted in its entirety. CT Page 13938-al