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finding the plaintiff "failed to sufficiently demonstrate irreparable harm" when the plaintiff did not "substantiate[] or provide[] context for the value" of being able to conduct business at a certain location
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18 Civ. 11932 (VM)
2019-08-23
CARUSO MANAGEMENT COMPANY LTD., Plaintiff, v. INTERNATIONAL COUNCIL OF SHOPPING CENTERS, Defendant.
Julia Marie Beskin, Renita Sharma, Steven M. Edwards, Quinn Emanuel Urquhart & Sullivan LLP, New York, NY, for Plaintiff. Alan Schoenfeld, Wilmer Cutler Pickering Hale & Dorr LLP, New York, NY, Steven Franklin Cherry, Wilmer Cutler Pickering Hale & Dorr, L.L.P., Washington, DC, for Defendant.
Julia Marie Beskin, Renita Sharma, Steven M. Edwards, Quinn Emanuel Urquhart & Sullivan LLP, New York, NY, for Plaintiff.
Alan Schoenfeld, Wilmer Cutler Pickering Hale & Dorr LLP, New York, NY, Steven Franklin Cherry, Wilmer Cutler Pickering Hale & Dorr, L.L.P., Washington, DC, for Defendant.
DECISION AND ORDER
VICTOR MARRERO, United States District Judge
Plaintiff Caruso Management Company Ltd. ("Caruso") brought this action against defendant International Council of Shopping Centers ("ICSC"), alleging multiple antitrust violations as well as claims of tortious interference with contract and prospective business. (See "Amended Complaint," Dkt. No. 20.) The crux of the Amended Complaint is that Caruso desires to meet with potential clients at nearby hotel venues during ICSC's annual "RECon" event, a large real estate conference held at the Las Vegas Convention Center ("Convention Center"). ICSC, however, has contracts with nearby hotels containing exclusivity clauses preventing such offsite meetings.
Caruso moved for a preliminary injunction to prevent the enforcement of the exclusivity clauses before this year's RECon, which took place in May 2019. The Court held a show cause hearing on Caruso's preliminary injunction motion on April 12, 2019 (the "Preliminary Injunction Hearing"). (See Dkt. Minute Entry for 4/12/2019.) The Court found that Caruso did not sufficiently demonstrate irreparable harm and denied Caruso's motion for a preliminary injunction. See Caruso Mgmt. Co. v. Int'l Council of Shopping Centers, No. 18 Civ. 11932, 2019 WL 1949801 (S.D.N.Y. Apr. 18, 2019) (the "April 18 Order," Dkt. No. 52.)
Now before the Court are the pre-motion letters submitted by ICSC seeking a conference to discuss a motion for summary judgment on all of Caruso's claims. The Court construes such letters as a motion by ICSC for summary judgment pursuant to Rule 56(a) of the Federal Rules of Civil Procedure (" Rule 56(a)") (the "ICSC Motion"). For the reasons set forth below, the ICSC Motion is GRANTED in part and DENIED in part.
I. BACKGROUND
A. FACTUAL BACKGROUND
Caruso is a successful real estate company founded by Rick Caruso. It owns, develops, manages, rents, buys, and sells profitable shopping center real estate. Its targeted clients include high-profile and profitable retailers. Caruso's properties are located exclusively in Southern California and rank among some of the most desirable retail locations in the United States.
For sixteen of the last eighteen years, Caruso has attended RECon, which is a large convention that ICSC hosts annually and draws over 35,000 attendees. Among its educational and other programming, RECon provides attending retailers and developers ample opportunity to engage in "deal-making." (See Belli Tr. 18:9-17.)
RECon also provides a significant source of income to its host, ICSC, which is a membership organization of retail real estate industry professionals with over 70,000 members such as Caruso and its employees. Certain ICSC members make up its board of trustees, which in turn selects a smaller group of about a dozen trustees to comprise the "Executive Board." The Executive Board is responsible for ICSC's governance, long-term strategy, and budget. The Executive Board, in carrying out those responsibilities, oversees the performance of ICSC's CEO, Tom McGee ("McGee"), and senior management. (See McGee Tr. 12:9-19.)
Recently, ICSC's marquee event at the Convention Center has faced competition for attendees. Since 2009, certain ICSC members (the "Real Estate Investment Trusts" or "REITs"), have taken to hosting their own large event at the nearby Caesars Palace ("Caesars"), during the weekend of RECon, for members to convene there, rather than attend RECon itself (the "REIT Convention"). The Simon Property Group, the largest mall owner in the country, and one of Caruso's competitors, rents space from Caesars every year to organize this gathering.
Both parties, as well as other RECon attendees, have complained about the negative impact that the REIT Convention has had on attendance at RECon. In response to such concerns, ICSC has taken some measures to preserve the effectiveness of RECon as a deal-making, networking, and social event. For example, ICSC requires exhibitors to staff their booths at the Convention Center during business hours. Further, ICSC now includes exclusivity clauses in its contracts with the hotels near the Convention Center at which it reserves discounted rooms for attendees (the "Covered Hotels"). These exclusivity clauses prevent the hotels from renting venue space for any events that would be similar or connected to RECon. However, the Simon Property Group's contract with Caesars predates such exclusivity clauses, thus those restrictions have no impact on the REIT Convention.
The negative effects of the REIT Convention on RECon motivated Caruso to start hosting its own away from the Convention Center event. In 2018, Caruso agreed to rent such offsite venue space on the casino floor at the nearby Wynn Hotel (the "Wynn") to host an event. The Wynn is not only one of the Covered Hotels, but also an informal "headquarters" hotel where ICSC hosts social and networking events of its own during RECon. ICSC's contract with the Wynn in 2018 contained an exclusivity clause, which required the Wynn to "use commercially reasonable efforts to not book function space in the Conference Center for any group or individual with the purpose to display exhibits directly related in any way to the related products relating to the show." (Pl. Ex. 34 ¶ 25.) "Conference Center" is not defined in that contract.
When ICSC learned of Caruso's agreement to exhibit at the Wynn in 2018, ICSC notified the Wynn that, in ICSC's view, Caruso's agreement violated the exclusivity clause in ICSC's agreement with the Wynn Specifically, Malachy Kavanagh ("Kavanagh"), a senior vice president of ICSC, emailed McGee about Caruso's agreement and organized a conversation between McGee and the Wynn's CEO. McGee, in turn, notified certain members of the Executive Board about Caruso's agreement with the Wynn and his plan to speak with the Wynn's CEO. (See Pl. Ex. 4 at 1-2; McGee Tr. 118:10-120:7.) When considering what approach to take with the Wynn, McGee and Kavanagh noted that the Wynn wanted to renew its contract with ICSC for RECon 2020 and 2021. (See Pl. Ex. 35 at 1.)
After several discussions among the Wynn, ICSC, and Caruso, the Wynn permitted Caruso to hold its event in a restaurant on Wynn hotel grounds, where Caruso met with twenty-one retailers. During this time, Caruso's counsel wrote to McGee about the situation, prompting McGee to seek the advice of certain Executive Board members about how to resolve the conflict. (See McGee Tr. 139:16-144:25.)
Shortly after RECon 2018, Caruso began to arrange a similar event with the Wynn for RECon 2019. In the meantime, McGee directed ICSC employees "to have conversations" with the Covered Hotels, such as the Wynn, to "ensure" clarity about the "understanding of the exclusivity clause." (Id. 24:11-20.) ICSC maintains an unwritten policy, which predates McGee's tenure as CEO, animating the inclusion of the exclusivity clause in the contracts with the Covered Hotels. (See id. 82:17-84:21.)
Ultimately, Caruso was unable to exhibit at the Wynn in 2019. On January 11, 2019, ICSC and the Wynn amended their contract, clarifying and expanding the exclusivity clause to prevent exhibition of products related to RECon at "any other function space or hospitality space or other publicly available space" at the Wynn. (Pl. Ex. 37 at 64.) ICSC understands that this clause prevents Caruso from hosting any and all formal meetings on the premises of the Wynn and other Covered Hotels, even in a private suite, during RECon. McGee met with the Executive Board in the days leading up to this renegotiated contract and after Caruso filed suit, but does not recall discussing the substance of Caruso's lawsuit with the Executive Board. (See McGee Tr. 154:12-25, 157:2-3.)
B. PROCEDURAL BACKGROUND
On December 18, 2018, Caruso sued ICSC in this Court, requesting a preliminary injunction and expedited discovery. (See Amended Complaint; Dkt. No. 6.) Counts I, II, and III assert violations of the antitrust laws under Sections One and Two of the Sherman Act, 15 U.S.C. §§ 1, 2. (See Amended Complaint ¶¶ 62-82.) Count IV asserts state law claims of tortious interference with contract and prospective business. (Id. ¶¶ 83-88.)
On January 11, 2019, the Court held a hearing to address Caruso's motion for a preliminary injunction and expedited discovery. (See Dkt. Minute Entry for 1/11/2019.) The Court granted the application for expedited discovery and set a hearing date for April 12, 2019 regarding the preliminary injunction request. (See id. )
After the Preliminary Injunction Hearing, the Court denied Caruso's motion for a preliminary junction and ordered the parties to confer on a trial date, due to the Court's preliminary finding of genuine disputes of material fact that would make motions for summary judgment a waste of the parties' and the Court's resources. (See April 18 Order at 22.)
Undeterred by the Court's Order to confer on a trial date, ICSC addressed the Court by letter dated April 22, 2019, setting forth its basis for ICSC's anticipated motion for summary judgment. (See "April 22 Letter," Dkt. No. 55.) ICSC presents three arguments. First, contends that summary judgment on Count I is warranted on the grounds that Caruso cannot show evidence of a horizontal agreement. (Id. at 1-2.) Second, ICSC seeks summary judgment on Counts II and III by contesting Caruso's proposed market definitions and methodologies for calculating market power. (See id. at 2-3.) Third, ICSC argues that it is entitled to summary judgment on Caruso's tortious interference claims in Count IV because Caruso fails to show multiple required elements, such as breach by a third party, that ICSC acted maliciously or with malintent, and that Caruso suffered damages. (See id. at 3.)
By letter dated April 24, 2019, Caruso contests each of these points. (See "April 24 Letter," Dkt. No. 56.) First, Caruso cites evidence purportedly showing that, through the Executive Board, ICSC's members entered into a horizontal agreement to "prevent Caruso from having offsite meetings with retailers." (Id. at 2.) Second, highlighting its expert's work, Caruso defends its proposed market definition and market power conclusions but contends that these determinations present issues of material fact more appropriate for trial. (See id. ) Third, Caruso asserts, without citation to the record, that "extensive testimony" exists that ICSC acted improperly with regard to Caruso's Wynn contract, creating genuine disputes of material fact. Separately, Caruso argues that it is entitled to additional discovery before the filing of any summary judgment motion, and summarizes its outstanding requests. (See id. at 3-5.)
After reviewing these letters, the Court held a telephone conference on May 7, 2019. (See Dkt. Minute Entry for 5/7/2019.) At the conclusion of the conference, the Court directed (1) ICSC to submit an additional letter to further supplement its arguments; and (2) Caruso to respond to ICSC's additional letter and identify any material facts unavailable to Caruso without further discovery which may make summary judgment premature. (See id. )
ICSC submitted its additional arguments by letter dated May 14, 2019. (See "May 14 Letter," Dkt. No. 65.) ICSC largely reiterates its earlier arguments by responding to Caruso's April 24 Letter. As part of its response to Caruso's arguments regarding market power, ICSC provides the declaration of Stefan Freiberg, the Chief Financial Officer of ICSC, summarizing RECon's rising costs. (See id. at 6.)
One week later, Caruso submitted its letter responding to ICSC's latest arguments. (See "May 21 Letter," Dkt. No. 65.) In conjunction with the May 21 Letter, Caruso submitted the declaration of its counsel describing the discovery Caruso contends it is entitled to obtain before responding to a summary judgment motion. (See "Edwards Declaration," Dkt. No. 66.)
By letter dated May 23, 2019, ICSC again wrote to the Court in response to the May 21 Letter and Edwards Declaration. (See "May 23 Letter," Dkt. No. 68.) However, because the Court never authorized ICSC to file a reply letter, the Court indicated that it would not consider the May 23 Letter, and if it were to do so, that it would provide Caruso an opportunity to respond. (See Dkt. No. 69.) The Court did not consider the May 23 Letter with respect to this Order, and thus did not give Caruso an opportunity to respond.
The Court now construes the April 22 Letter and the May 14 Letter from ICSC as a motion by ICSC for summary judgment on all counts of the Amended Complaint pursuant to Rule 56(a).
II. LEGAL STANDARDS
Summary judgment is appropriate if the evidence shows that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The role of a court in ruling on such a motion "is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried." Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986).
The moving party bears the initial burden of demonstrating the absence of any genuine issues of material fact. See Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548 ; Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994). If the moving party satisfies its burden, the nonmoving party must provide specific facts showing that there is a genuine issue for trial in order to survive the motion for summary judgment. See Shannon v. New York City Transit Auth., 332 F.3d 95, 98-99 (2d Cir. 2003).
In determining whether the moving party is entitled to judgment as a matter of law, the court must "resolve all ambiguities and draw all justifiable factual inferences in favor of the party against whom summary judgment is sought." Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008) ; see also Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir. 1996) ("Summary judgment is proper if, viewing all facts of record in a light most favorable to the non-moving party, no genuine issue of material fact remains for adjudication.") (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). Although the party opposing summary judgment may not "rely on mere conclusory allegations nor speculation," D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998), if there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper. See Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996).
In the context of antitrust cases, the Court of Appeals for the Second Circuit has clarified that "summary judgment is particularly favored because of the concern that protracted litigation will chill [procompetitive] market forces." PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 104 (2d Cir. 2002) (citing Tops Mkts., Inc. v. Quality Mkts., Inc., 142 F.3d 90, 95 (2d Cir. 1998) ). ICSC emphasizes this language in support of its substantive arguments for summary judgment. (See May 14 Letter at 1.) But this tilt in favor of granting summary judgment in certain antitrust cases is best understood within the context of the applicable antitrust law governing Caruso's claims. See In re Publ'n Paper Antitrust Litig., 690 F.3d 51, 63 (2d Cir. 2012) ("substantive antitrust law limits the range of permissible inferences that may be drawn from ambiguous evidence" on a summary judgment motion (internal quotation marks omitted)). Thus, the Court next turns to the substantive antitrust law.
Of course, the Court notes that another approach to avoiding "protracted litigation" is to eschew reflexive and needless motion practice and proceed expeditiously to a trial on the merits.
Count I and Count II are brought under Section One of the Sherman Act, which prohibits any "contract, combination in the form of trust or otherwise, or conspiracy, in restraint of [interstate] trade or commerce." 15 U.S.C. § 1. To prove a Sherman Act Section One violation, a plaintiff must show first that there were "concerted actions between at least two legally distinct economic entities" which evince "a conscious commitment to a common scheme designed to achieve an unlawful objective." United States v. Apple, Inc., 791 F.3d 290, 313, 315 (2d Cir. 2015).
Once plaintiffs demonstrate concerted action, they must then show that the concerted action "constituted an unreasonable restraint of trade." Anderson News, L.L.C. v. Am. Media, Inc., 899 F.3d 87, 97 (2d Cir. 2018) (internal quotation marks omitted). Depending on the nature of the restraint of trade and some other considerations, plaintiffs may demonstrate that the alleged restraint of trade was unreasonable either "per se" or under the "rule of reason." See id.
Antitrust law deems only a few specific restraints of trade unreasonable per se. Per se rules of illegality are appropriate only in cases in which the restraint of trade at issue is so "manifestly anticompetitive" that its "pernicious effect on competition and lack of any redeeming virtue [is] conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm [it has] caused or the business excuse for [its] use." Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 50-51, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977) (internal quotation marks omitted). Examples of per se unlawful conduct include horizontal and vertical price-fixing, horizontal market division, and certain types of group boycotts. See NYNEX Corp. v. Discon, Inc., 525 U.S. 128, 133-34, 119 S.Ct. 493, 142 L.Ed.2d 510 (1998).
Because of the rigorous standard and the presumption against applying the per se rule, most restraints of trade are subject to rule of reason analysis instead. See Business Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 726, 108 S.Ct. 1515, 99 L.Ed.2d 808 (1988). A rule of reason analysis is holistic. When applying it, courts must weigh "all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition." Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 885, 127 S.Ct. 2705, 168 L.Ed.2d 623 (2007).
In order to show an unreasonable restraint of trade under the rule of reason, a plaintiff must identify the relevant market that is subject to the restraint and then demonstrate the restraint's adverse effects on competition in that market. See, e.g., Cenedella v. Metro. Museum of Art, 348 F. Supp. 3d 346, 360 (S.D.N.Y. 2018) ; see also Virgin Atl. Airways Ltd. v. British Airways PLC, 257 F.3d 256, 264 (2d Cir. 2001) ("[A plaintiff] is first required to show [the restraint on trade] had an actual adverse effect on competition as a whole in the relevant market." (internal quotation marks omitted)). A defendant can rebut the plaintiff's showing with evidence of procompetitive effects of their alleged restraint. See Capital Imaging Assocs., P.C. v. Mohawk Valley Med. Assocs., Inc., 996 F.2d 537, 543 (2d Cir. 1993). If a defendant adequately rebuts the plaintiff's showing, then the burden shifts back to the plaintiff to show that similar procompetitive effects could have been achieved through less restrictive means. See id. Ultimately, the weighing of procompetitive and anticompetitive effects "remains for the factfinder." Id.
"For antitrust purposes, the concept of a market has two components: a product market and a geographic market." Concord Assocs. v. Entm't Props. Tr., 817 F.3d 46, 52 (2d Cir. 2016). The relevant market is not simply whatever the plaintiff defines or wherever the defendant operates. Rather, the product market must consist of all "acceptable substitutes" that may be considered "reasonably interchangeable." PepsiCo, 315 F.3d at 105 (identifying substitutes in the soft-drink delivery market). Then, the geographic market consists of "the precise geographic boundaries of effective competition." Concord Assocs., 817 F.3d at 52-53.
Determining the relevant product and geographic market is a "deeply fact-intensive inquiry." Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 482, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). Ultimately, the purpose of defining a market is to identify the participants and economic pressures that impact prices and restrain anticompetitive conduct. See Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 496 (2d Cir. 2004).
Demonstrating adverse effects on competition is similarly fact-intensive, as courts consider the restraint's effect on output, prices, and quality. See Virgin Atl. Airways, 257 F.3d at 264. Alternatively, a plaintiff may show the defendant "had sufficient market power to cause an adverse effect on competition." Id. at 265 (internal quotation marks omitted).
Turning to Count III, where Sherman Act Section One targets agreements in restraint of trade, Sherman Act Section Two outlaws "both concerted and unilateral behavior" that "threatens actual monopolization." Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752, 767 n.13, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984). Sherman Act Section Two monopolization claims have a few overlapping elements with Section One rule of reason claims. Plaintiffs claiming monopolization must allege: "1) the possession of monopoly power in the relevant market and 2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen or historic accident." PepsiCo, 315 F.3d at 105 (quoting United States v. Grinnell Corp., 384 U.S. 563, 571, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966) ). A plaintiff can show monopoly power through the defendant's 1) ability to control prices or exclude competition, or 2) possession of a dominant share of the market. See id. If the plaintiff demonstrates monopoly power, it may then demonstrate the "acquisition or maintenance" of that power through specific anticompetitive conduct, such as exclusive dealing arrangements. See Verizon Comm'ns Inc. v. Trinko, 540 U.S. 398, 407, 124 S.Ct. 872, 157 L.Ed.2d 823 (2004).
Having addressed the substantive antitrust law, the Court returns to its assessment of the applicable rules' impact on the summary judgment standard. Historically, the fact-heavy requirements of antitrust law cut against granting summary judgment motions in antitrust cases. See, e.g., Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) ("[S]ummary [judgment] procedures should be used sparingly in complex antitrust litigation ...."). However, the Supreme Court has since reversed at least partly that presumption, explaining that substantive "antitrust law limits the range of permissible inferences from ambiguous evidence in a [Section One] case." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Specifically, and as demonstrated in Matsushita, numerous Sherman Act Section One claims turn on whether the alleged concerted action resulted either from an illegal conspiracy or from independent parallel conduct by rational economic actors. See id. at 587, 106 S.Ct. 1348. ("[T]he defendant lacked any rational motive to join the alleged boycott, and ... its refusal to deal was consistent with the defendant's independent interest ...."); Anderson News, 899 F.3d at 103 ("The conduct complained of here ... is in our view equally consistent with both a conspiratorial explanation and an independent-action explanation."). In the absence of direct evidence of an antitrust conspiracy (a rare occurrence), plaintiffs may rely upon circumstantial evidence to support the existence of an agreement. Anderson News, 899 F.3d at 103-04. In such circumstances, the "range of inferences that may be draw[n] from such [circumstantial] evidence depends on the plausibility of the plaintiff's theory." In re Publ'n Paper Antitrust Litig., 690 F.3d at 63. Of course, plaintiffs need not "disprove all nonconspiratorial explanations for the defendants' conduct" but "if the evidence is in equipoise, then summary judgment must be granted against the plaintiff." Anderson News, 899 F.3d at 98 (internal quotation marks omitted).
Thus, though PepsiCo highlights the important role of summary judgment motions in antitrust cases, especially regarding Sherman Act Section One cases, the Court remains largely guided by the Rule 56 standards, except when examining the competing inferences that may be drawn from Caruso's circumstantial evidence of ICSC's alleged concerted action. When faced with genuine disputes of material fact, the Court must deny the motion. See, e.g., In re Publ'n Paper Antitrust Litig., 690 F.3d at 69 (reversing district court grant of summary judgment because of genuine dispute of material fact regarding whether alleged agreement raised prices); In re Namenda Direct Purchaser Antitrust Litig., 331 F. Supp. 3d 152, 200-01 (S.D.N.Y. 2018) (finding a genuine dispute of material fact regarding whether conduct caused prices to rise); SourceOne Dental, Inc. v. Patterson Cos., Inc., 310 F. Supp. 3d 346, 358 (E.D.N.Y. 2018) (finding multiple genuine disputes of material fact, including whether a horizontal agreement was made); Dial Corp. v. News Corp., 165 F. Supp. 3d 25, 35 (S.D.N.Y. 2016) (finding genuine dispute of material fact as to whether procompetitive benefits of exclusivity clause outweigh its harms to competition).
III. DISCUSSION
A. EVIDENCE OF AN AGREEMENT
Caruso contends that ICSC members agreed to boycott the Wynn in order to force the Wynn to refuse to do business with Caruso. (See May 21 Letter at 2.) ICSC seeks summary judgment in its favor for Count I, on the grounds that Caruso cannot demonstrate the existence of an "agreement among ICSC members." (April 22 Letter at 2; see also May 14 Letter at 2.) ICSC reasons that, because Caruso presents no evidence that there was of an agreement among ICSC's members to boycott the Wynn, Caruso's theory supporting a finding of such an agreement depends solely upon a single determination: whether common conduct by a trade association (such as ICSC) automatically qualifies as an agreement among its members to engage in that conduct. ICSC rejects that conception of finding an agreement among trade association members. Instead, ICSC contends that when the conduct of a trade association is at issue, a plaintiff must submit evidence which "tend[s] to show that ‘association members, in their individual capacities, consciously committed themselves to a common scheme designed to achieve an unlawful objective.’ " (May 14 Letter at 2 (quoting North Am. Soccer League, LLC v. United States Soccer Fed'n, Inc., 883 F.3d 32, 40 (2d Cir. 2018) ).)
The Court notes that, although ICSC limited its arguments described here to Count I, its arguments apply equally to Count II because both counts allege Sherman Act Section One violations and require Caruso to demonstrate the existence of an agreement or concerted action.
Caruso's first response largely concedes that it must show more than mere conduct by ICSC to show an agreement by its members to undertake such common conduct. In the April 24 Letter, Caruso claims that the cases ICSC cites for its argument on this point, such as North American Soccer League, do not apply. (April 24 Letter at 1.) However, rather than fully "addressing whether the cases ... even apply" Caruso proceeds to cite evidence regarding the communications between ICSC's management and Executive Board (see id. at 1-2), and requests an opportunity to take depositions and discovery of certain Executive Board members to address the issue further (see Edwards Declaration ¶¶ 17, 18).
Caruso's second response, contained in the May 21 Letter, takes a different approach. Rather than focus on the evidence of the communications of the Executive Board, Caruso asserts that ICSC can be "liable for the conduct of its management." (May 21 Letter at 2.) Caruso attempts to distinguish certain of the cases ICSC cites and provides a list of cases in which the Second Circuit has found that various forms of trade association conduct constituted concerted action. (See id. at 1-2.)
Courts have long declared that "a trade association is not by its nature a walking conspiracy." North Am. Soccer League, 883 F.3d at 40 (quoting Consol. Metal Prods., Inc. v. Am. Petroleum Inst., 846 F.2d 284, 293-94 (5th Cir. 1988) ). Otherwise, "purchasing or hiring decisions in the everyday operation of a trade association" could be construed as unlawful concerted action. Klickads, Inc. v. Real Estate Bd. of N.Y., Inc., No. 04 Civ. 8042, 2007 WL 2254721, at *4 (S.D.N.Y. Aug. 6, 2007). Put differently, "organizational decisions do not inherently constitute Section One concerted action." North Am. Soccer League, 883 F.3d at 40. Instead, a plaintiff must still show the existence of an agreement, requiring evidence that tends to "show that association members, in their individual capacities, consciously committed themselves to a common scheme designed to achieve an unlawful objective." Id. (emphasis and internal quotation marks omitted); see also United States v. Visa U.S.A., Inc., 344 F.3d 229, 242 (2d Cir. 2003) (finding an agreement among individual members when banks that were part of the Visa and MasterCard networks agreed not to issue American Express or Discover cards as part of their right to issue Visa and MasterCard cards). Of course, given that trade associations may have many thousands of members, in some circumstances it is enough for a plaintiff to show the existence of an agreement among only an association's board members, rather than each individual member. See North Am. Soccer League, 883 F.3d at 41 (finding that a board's promulgation of standards could constitute direct evidence of concerted action if the standards restrained competition).
Caruso never addresses the specific and binding language of North American Soccer League. Instead, Caruso likens the North American Soccer League test to a "ratification rule," which it contends is contrary to antitrust law. (See May 21 Letter at 2 n.3 (citing American Soc. of Mech. Engineers, Inc. v. Hydrolevel Corp., 456 U.S. 556, 573, 102 S.Ct. 1935, 72 L.Ed.2d 330 (1982) ("[The defendant] insists that it should not be held liable unless it ratified the actions of its agents. But a ratification rule would have anticompetitive effects, directly contrary to the purposes of the antitrust laws.")).) Caruso misstates the holding of Hydrolevel. The Supreme Court in Hydrolevel did not address the circumstances under which trade organization members enter into an agreement which violates Sherman Action Section One; it addressed only under what circumstances a standard-setting organization could be liable for the actions of its agents under antitrust law. See 456 U.S. at 565-66, 102 S.Ct. 1935. Further, the Second Circuit's current trade-association test results from its explicit determination that the later cases of Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984), and Matsushita altered the "membership-ratification theory" referenced in cases like Hydrolevel. See AD/SAT, Div. of Skylight, Inc. v. Associated Press, 181 F.3d 216, 234 (2d Cir. 1999).
Because of the Second Circuit's explicit language, the Court is not persuaded that Caruso can sufficiently show the existence of an agreement among ICSC's members simply by pointing to any action it takes. That is, ICSC's contracts and conversations with the Wynn do not automatically constitute an impermissible antitrust agreement by ICSC's members. Instead, Caruso must show an agreement among the Executive Board members, who make decisions on behalf of ICSC, to achieve an unlawful anticompetitive objective.
Nonetheless, requiring Caruso to demonstrate a conscious commitment by ICSC's Executive Board members to an unlawful antitrust objective does not doom Caruso's claim. ICSC argues that Caruso can point to no facts supporting the existence of such an agreement. In making that argument, ICSC downplays any role of the Executive Board in preventing Caruso from contracting with the Wynn. Specifically, ICSC discounts the email exchange between McGee and the Executive Board that discusses preventing Caruso from using the Wynn, as "after-the-fact communications simply giving the [Executive Board] a ‘heads up.’ " (May 14 Letter at 2.) Second, and more broadly, ICSC argues that its management adopted the exclusivity clause with the Wynn years before the parties' current dispute and without any input from the Executive Board. (Id. at 2.)
ICSC's showing places the burden on Caruso to respond, but Caruso rebuts ICSC's showing. The Court finds a genuine issue of material fact regarding the existence of an agreement or concerted action. Caruso provides evidence that the Executive Board communicated with McGee about preventing Caruso from exhibiting at the Wynn before RECon 2018. Contrary to ICSC's interpretation, the emails show more than a "heads up." Rather, the Executive Board members on the email appear to support fully efforts to prevent Caruso from exhibiting at the Wynn. (See Pl. Ex. 4 at 1.) McGee proceeded to update certain Executive Board members about his conversations with the Wynn CEO about the exclusivity clause. (See Pl. Ex. 5 at 1.) McGee also turned to certain Executive Board members for advice on how to approach Caruso before RECon 2018. (See McGee Tr. 139:16-144:25.) In the ensuing months, while he met with the Executive Board and occasionally discussed Caruso, McGee directed the renegotiation of ICSC's exclusivity clause with the Wynn to make it more restrictive. (See id. 24:11-20.) ICSC likely tied the renegotiation of that clause with contract renewals with the Wynn for RECon 2020 and 2021. (See Pl. Ex. 35 at 1.) Despite the importance of corralling members to the Convention Center floor, the renegotiated and stricter exclusivity clause maintains a list of companies -- including certain ones associated with recent Executive Board members -- that are exempted from its strictures. (See id. at 126:18-128:2.)
In light of the above, the Court finds that a reasonable juror could conclude that Caruso presents sufficient evidence of a commitment by ICSC and Executive Board members to a common scheme of pressuring the Wynn to prevent Caruso's exhibiting. Caruso points to direct evidence indicating that certain Executive Board members consciously agreed with McGee's efforts leading up to RECon 2018 to prevent Caruso from exhibiting at the Wynn. In the emails, McGee referenced the exclusivity clause with the Wynn to the Executive Board members, they did not object to his invocation of it, and in fact, seemed to actively encourage McGee's efforts in this regard. Then, for Recon 2019 and beyond, Caruso provides persuasive circumstantial evidence suggesting that ICSC used the upcoming 2020 and 2021 contract renewals to pressure the Wynn into preventing Caruso's exhibiting. Yet, that renegotiation contained exemptions to the exclusivity clause that benefitted certain Executive Board members.
Although Caruso's direct and circumstantial evidence suffices to create a genuine dispute of material fact, the Court further recognizes that Caruso may lack certain key discovery that may be necessary to resolve the underlying issues. For example, Caruso has not taken depositions of key Executive Board members. Of course, the parties managed to produce a large evidentiary record in a few short months for the purposes of the Preliminary Injunction Hearing. However, as Magistrate Judge Robert Lehrburger observed in ruling on a discovery dispute, the parties have not engaged in "full merits discovery." (Dkt. No. 36 at 3.) Thus, even if on the record now before the Court there were competing "inferences from ambiguous evidence" that may weigh in favor of granting summary judgment, Matsushita, 475 U.S. at 588, 106 S.Ct. 1348, balancing the other end of the scale would be the prospect of the Court ruling against Caruso prematurely and before discovery is complete. In the totality of the existing record, the Court is persuaded that this "evidence, viewed in the light most favorable to [Caruso] ... could support a reasonable inference of illegal collusive behavior." In re Publ'n Paper Antitrust Litig., 690 F.3d at 64.
Next, the Court turns to whether there exists a genuine dispute of material fact concerning the legality of ICSC preventing exhibitors such as Caruso from exhibiting at any of the Covered Hotels.
B. THE RELEVANT MARKET AND MARKET POWER
The parties maintain starkly different conceptions regarding every feature of the relevant market for the antitrust analysis necessary to assess Count II and Count III. Caruso defines three markets in its Amended Complaint and its expert assesses yet another. Caruso's arguments generally apply to some variation of the market for meeting space in Las Vegas during RECon. (See May 21 Letter at 3 ("[T]he market for meetings during RECon (which includes the meetings that the REITs conduct at Caesars) ....").) ICSC, though not formally offering a competing market definition, notes that 1) "no one buys or sells" meetings; and 2) Caruso competes in the "retail real estate market in Southern California." (May 14 Letter at 2.) Further, ICSC questions Caruso's market definitions for failing to account for the "many substitutes for meeting with retailers" at the Wynn, such as meeting with them on the Convention Center floor, at different conferences during the year, or in Caruso's own offices. (Id. at 3.) Turning to market power, ICSC maintains that because of the significant attendee turnover and existence of other retail trade association conventions which charge higher fees to exhibit, ICSC necessarily does not exercise market power. Finally, ICSC contends that Caruso cannot demonstrate that the market, however defined, was adversely affected by ICSC's conduct or that Caruso was substantially foreclosed from meeting with retailers. (See id. at 3-4.)
"There are three product markets that are relevant to this case: (a) the market for shopping center trade associations; (b) the market for meeting with customers during RECon; and (c) the market for holding offsite meetings with customers at the Wynn." (Amended Complaint ¶ 40.)
"[T]here exists a relevant product market for meeting space during the RECon conference, where the relevant geographic market is the area subjected to that price effect (the geographic area in Las Vegas covered by the RECon conference)." ("Levinson Report," Def. Ex. 37 ¶ 217.)
ICSC presents valid points on these issues; however, those arguments raise material factual disputes that should be assessed by a jury. Caruso's market definition, which drives much of the market power and adverse effects analysis in this case, passes sufficient muster for now to create a genuine dispute of material fact on these largely factual questions. ICSC's theory is hampered by the Levinson Report, which, like ICSC's expert report, presents a credible economic analysis. Ultimately, "the credibility of the competing expert witnesses, and the persuasiveness of their opinions are all questions for the jury." Allen v. Dairy Farmers of Am., Inc., No. 09 Civ. 230, 2014 WL 2610613, at *7 (D. Vt. June 11, 2014) (citing Pope v. County of Albany, 687 F.3d 565, 581 (2d Cir. 2012) ).
One of the most relevant aspects of the Levinson Report is its analysis of the market by employing the "hypothetical monopolist test," which imagines the impact of a "small but significant and non-transitory increase in price" ("SSNIP"). United States v. Am. Express Co., 838 F.3d 179, 198 (2d Cir. 2016). According to the hypothetical monopolist test, a "market is any grouping of sales whose sellers, if unified by a hypothetical cartel or merger, could profitably raise prices significantly above the competitive level" because they are unrestrained by other sellers. Id. at 198-99 (internal quotations marks omitted).
In sum, using the SSNIP analysis, Caruso's expert concludes through documentary evidence that ICSC was able to raise prices by over seven percent, and in excess of its costs, on its RECon exhibitors without concern of losing customers. (See Levinson Report ¶¶ 210-16.) Based on this hypothetical monopolist test, the Levinson Report identified the market for meeting space in Las Vegas during RECon. (See id. ) Although the results of this test are not determinative -- and the particular analysis here appears to be based more on documentary evidence than the rigorous economic modeling that is typical -- the test is a common tool in antitrust cases for defining the relevant market. See Am. Express Co., 838 F.3d at 198.
Even ICSC concedes the relevance of the SSNIP analysis by producing additional discovery with its May 14 Letter in order to rebut that analysis. Specifically, ICSC includes the declaration of its Chief Financial Officer to argue that ICSC raised RECon's prices in response to rising costs. (See May 14 Letter at 6.) As Caruso notes, it never had the opportunity to depose the Chief Financial Officer or examine the underlying documents he references. (See May 21 Letter at 4.) Given the competing documentary evidence put forward by the parties, there is a genuine dispute of material fact regarding ICSC's costs relative to its RECon price increases.
Even apart from hypothetical monopolist test, the Court cannot conclude that the Levinson Report's market definition fails as a matter of law. ICSC maintains that Caruso's proposed market is too narrow because it does not account for four alternative venues where Caruso can meet with clients: (1) the Convention Center floor during RECon (as Caruso had done for many years prior to the occurrence of the parties' instant dispute); (2) other non-premium hotels that are not subject to an exclusivity clause; (3) other retail trade association conventions throughout the year; and (4) Caruso's own offices throughout the year.
None of these possible substitutes are determinative at the summary judgment stage. The record does not support that Caruso could have met with retailers at the Convention Center, because ICSC has failed to produce actual attendance lists (rather than simply registration lists) of recent RECons for comparison. (See Edwards Declaration ¶ 24.) Next, factual issues abound on whether or not the non-premium hotels farther from the Convention Center may serve as adequate substitutes in which to host meetings, and even ICSC's own documents suggest that they are not. (See, e.g., Pl. Ex. 22.) ICSC's insistence that the Court consider other trade association events organized throughout the year reflects a more fundamental criticism of the market definition. But again, that issue requires a more thorough comparison of the various real estate market conventions to understand whether they are substitutes. Hypothetically, for instance, what if no deal making takes place at the National Retail Federation's annual convention? Finally, the Court is not persuaded that Caruso's own offices, or those of its clients, realistically present the same scale of audience, physical space, commercial facilities, and opportunities for deal making as a trade convention attended by 35,000 representatives of the relevant market.
In addition to listing these purported substitutes, ICSC contends that the substantial turnover of RECon attendees from year-to-year "belies any notion" of ICSC possessing sufficient market power. (May 14 Letter at 3.) But a high attendance turnover rate is not a talismanic rejoinder to the results of a plausible hypothetical monopolist test. At best, this evidence (which appears to focus on individual attendance rather than arguably more relevant corporate attendance) highlights the factual issues this action raises. The Court finds that a genuine dispute of material fact exists as to the relevant market determination in this case.
Finding genuine disputes of material fact regarding ICSC's market power and adverse effects follows somewhat necessarily given Caruso's market definition and the evidence suggestive of ICSC raising prices on exhibitors. The Levinson Report concludes that ICSC's ability to raise prices seven percent while still filling the Convention Center demonstrates that "ICSC did not face competitive constraints that would prevent it from instituting such a price increase" because exhibitors could not "turn[ ] to what would have been substitutes in demand for" exhibition space at the Convention Center. (Levinson Report ¶¶ 215, 216.)
Caruso's market definition also supports its argument that ICSC's enforcement of its exclusionary contracts with various Las Vegas hotels substantially forecloses competition in the relevant market -- blocking between forty and eighty percent of the meeting space, depending on which hotels are regarded as potential are substitutes. Such a foreclosure is enough to show an adverse effect on the market. See, e.g., Mazda v. Carfax, Inc., No. 13 Civ. 2680, 2016 WL 7231941, at *4 (S.D.N.Y. Dec. 9, 2016), aff'd, 726 F. App'x 66 (2d Cir. 2018) (explaining that, for Sherman Act Section Two claims alleging exclusive dealing arrangements, a plaintiff can show anticompetitive conduct if the defendant substantially forecloses competition in the market, typically in the amount of thirty to forty percent). ICSC responds to this substantial foreclosure argument by offering that Caruso could meet with retailers either at the Convention Center or another venue in Las Vegas apart from the Covered Hotels. These alternative options, however, largely encompass the considerations that go into defining the relevant market in the first instance.
In urging this Court to make factual determinations that properly should be left to a jury, ICSC directs the Court to numerous antitrust cases granting summary judgment to defendants. None of them, however, counsel granting summary judgment in this case. For example, in PepsiCo, the Second Circuit rejected the plaintiff's market definition because even its "own survey of 99 major customers" and "internal strategy documents" did not support the market segmentation it proposed. 315 F.3d at 106. Here, by contrast, when ICSC polled Executive Board members in an internal survey to identify substitutes for ICSC's deal making events, multiple ICSC members agreed that there are no substitutes. (Pl. Ex. 40 at 5 ("[There are] [n]o existing direct substitutes -- there are some regional and fragmented substitutes."); id. at 7 ("[T]here are no real competitors to deal making events.... The value of [ICSC] is completely tied to deal making events.").) These survey responses raise questions of material fact regarding the alternative convention locations and formats ICSC offers as possible substitutes for the relevant market.
Similarly, in Capital Imaging Associates, the Second Circuit found that the plaintiff "failed to demonstrate that a genuine issue of material fact exists with respect to [defendants'] strength in the marketplace." 996 F.2d at 547. Specifically, the plaintiff failed to "contravene [ ] the accuracy" of defendant's market share figures that demonstrated defendants controlled 1.15 percent of relevant market. Id. Here, by contrast, not only has ICSC not offered its own market definition or market power calculation, the Levinson Report analyzed the market for meeting space and found support for Caruso's claim that ICSC exercised market power in the meeting space domain. Ultimately, Capital Imaging Associates presented much starker numbers than Caruso can muster at this stage. That is, even if the Court considered other trade association conventions as constituting relevant substitutes, RECon represents one of only a handful of real estate industry gatherings offering much more than 1.15 percent of total meeting space.
In sum, Caruso sufficiently avoids the fatal fundamental missteps highlighted in the cases that ICSC cites. See Cinema Vill. Cinemart, Inc. v. Regal Entm't Grp., 708 F. App'x 29, 31 (2d Cir. 2017) (finding an implausible market definition when plaintiff interchanged two separate neighborhoods throughout its pleadings and arguments); Emigra Grp., LLC v. Fragomen, Del Rey, Bernsen & Loewy, LLP, 612 F. Supp. 2d 330, 355, 360 (S.D.N.Y. 2009) (finding submarket for "business-related immigration services" too broad to identify any constraints to raising prices). The Court is persuaded that Caruso presents sufficient evidence to raise a genuine dispute as to whether ICSC exercised market power in a relevant market in a way that harmed competition, thus precluding entry of summary judgment on Count II and Count II III.
C. PROCOMPETITIVE JUSTIFICATIONS
ICSC argues that the exclusivity clauses have procompetitive effects which justify their use, and that Caruso cannot show that less restrictive means of achieving the same ends exists. (See May 14 Letter at 4-5.) The Court does not doubt the likely existence of some procompetitive effects under the facts presented. Such effects, however, do not automatically compel the dismissal of Counts II and III. Specifically, Caruso can rebut ICSC's showing of procompetitive effects by demonstrating less restrictive means available to ICSC to accomplish the same ends. See Capital Imaging Assocs., 996 F.2d at 543. And Caruso does make such a showing.
As Caruso points out, ICSC's own management considered alternative methods to prevent exhibitors from leaving the Convention Center floor for offsite locations, including not charging retailers to attend RECon. (See Pl. Ex. 50 at 1.) Moreover, given ICSC's strict position -- that the exclusivity clause in its contract with the Wynn prevents Caruso from meeting with potential clients anywhere on hotel grounds, even in a private residential suite -- Caruso has ample room to suggest even small adjustments to the time and location restrictions of those clauses that would be less restrictive. As some of ICSC's own Executive Board members advocated, for instance, still another method of accomplishing ICSC's goal of retaining attendees may be simply to offer more compelling programming and content. (See, e.g., Pl. Ex. 40 at 5, 7.) Ultimately, it remains for the factfinder, not the Court ruling on a summary judgment motion, to weigh the procompetitive justifications with the anticompetitive effects and less restrictive alternatives.
D. TORTIOUS INTERFERENCE
Caruso's antitrust claims largely fuel the parties' arguments regarding the other substantive claims in dispute. Caruso's Count IV consists of two related state-law tort claims. The first asserts tortious interference with contract, relating to Caruso's contract with the Wynn covering RECon 2018. The second alleges tortious interference with prospective business, relating to Caruso's failed discussions to enter into a contract with the Wynn for RECon 2019.
The elements for these two claims are similar, and many are not in apparent dispute. To establish a claim of the tortious interference with contract, a plaintiff must show "(1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant's knowledge of the contract; (3) the defendant's intentional procurement of the third-party's breach of the contract without justification; (4) actual breach of the contract; and (5) damages resulting therefrom." Kirch v. Liberty Media Corp., 449 F.3d 388, 401 (2d Cir. 2006) (internal quotation marks omitted).
A tortious interference with prospective business claim requires a plaintiff to show "that (1) it had a business relationship with a third party; (2) the defendant knew of that relationship and intentionally interfered with it; (3) the defendant acted solely out of malice, or used dishonest, unfair, or improper means; and (4) the defendant's interference caused injury to the relationship." Carvel Corp. v. Noonan, 350 F.3d 6, 17 (2d Cir. 2003).
Because of the antitrust-centric character of this case, the parties devote little attention to these other claims. In fact, despite the burden-shifting framework of summary judgment predicated upon presenting evidence or the lack thereof, only one letter contains any relevant record references addressing these claims: ICSC's May 14 Letter. Even though Caruso bears the ultimate burden of persuasion, it addresses these claims solely in its April 24 Letter, failing to respond to any of ICSC's points in the May 14 Letter.
The Court is persuaded that Caruso cannot show a genuine dispute of material fact regarding its tortious interference claim, even if Caruso obtained further discovery. Specifically, Caruso cannot show that Wynn materially breached their contract relating to RECon 2018. A material breach constitutes a breach that goes to the "root of the agreement between the parties." Process Am., Inc. v. Cynergy Holdings, LLC, 839 F.3d 125, 136 (2d Cir. 2016) (internal quotation marks omitted). As Caruso admits, however, leading up to RECon 2018, Caruso voluntarily agreed with the Wynn to move its offsite exhibition and meeting space event from the Wynn's casino floor, as originally contracted, to a restaurant at the Wynn. (See Amended Complaint ¶ 8.) Caruso does not identify any way in which the slight change in locations at the Wynn, or its inability to use the purpose-built booth for the casino floor, went to the "root of the agreement between" the Wynn and Caruso. Id. Though Caruso seeks additional discovery regarding his tortious interference with contract claim as well, the evidence needed to show materiality of the breach and maintain this claim lies solely with Caruso. Thus Caruso's request for additional discovery to prove this claims is irrelevant, and does not salvage it.
However, the Court finds that a genuine dispute of material fact exists as to the elements of Caruso's claim alleging tortious interference with prospective business. ICSC argues that Caruso cannot show that ICSC acted improperly or that Caruso suffered damages. However, neither point is dispositive at this stage. First, whether ICSC acted improperly turns on whether it violated the antitrust laws as Caruso alleges in Counts I, II, and III, a determination still left for trial. Second, Caruso need only show damages recognized "under the more liberal rules applicable to tort actions." Carvel Corp., 350 F.3d at 24 (internal quotation marks omitted). ICSC's conclusory statement that Caruso could not show harm regarding the conduct surrounding RECon 2019 is insufficient to put the burden on Caruso to make a sufficient showing of damages at this stage of the proceedings.
IV. ORDER
For the reasons stated above it is hereby
ORDERED that the motion so deemed by the Court as filed by defendant International Council of Shopping Centers ("ICSC") to dismiss (Dkt. Nos. 55, 62) the claims of the Amended Complaint (Dkt. No. 20) of plaintiff Caruso Management Company Ltd. is GRANTED as to the fourth claim for tortious interference with prospective business and DENIED as to all other claims. It is further
ORDERED that the parties shall confer and develop a proposed case management plan for any remaining discovery needs and submit a joint status report to the Court within seven days of the entry of this Order.
SO ORDERED .