Opinion
CV136039811S
05-05-2017
Tremont Public Advisors, LLC v. Connecticut Resources Recovery Authority
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS #185 AND MOTION TO STRIKE #186
A. Susan Peck, Judge
In its second substituted complaint filed April 25, 2016, the plaintiff, Tremont Public Advisors, LLC (Tremont), alleges the following facts. Tremont is a public affairs firm located in Hartford, and the defendant, Connecticut Resources Recovery Authority (CRRA), is a quasi-public agency established pursuant to General Statutes § 22a-261 et seq. General Statutes § 22a-268, along with other statutes, generally require CRRA to engage in open and competitive bidding for its contracts with outside vendors. " Through open bidding . . . CRRA is to secure the most qualified bidders for its products and services at the lowest price." CRRA is also required, pursuant to its own policies and procedures, to select the bidder who submits the most responsive qualified bid or proposal, and to not award contracts to entities in which a public official has an interest.
The lengthy procedural history of this case has been discussed by this court in earlier memoranda of decision and is omitted herein. See docket entries #142 (July 7, 2014); #170 (August 17, 2015), and #182 (March 31, 2016).
CRRA was succeeded by the Materials Innovation and Recycling Authority. See Public Acts 1994, No. 14-94, effective June 6, 2014.
Since at least 2006, CRRA has contracted for Municipal Government Liaison Services (MGLS). " The market for municipal government liaison services includes many providers such as public affairs businesses and government relations professionals, " and " Tremont Public Advisors is a participant in that market." " CRRA and its member municipalities are consumers of the municipal government liaison services, with the cost of the services borne by the member municipalities through the tipping fees they must pay."
The law firm Brown Rudnick, LLP (Brown Rudnick), has been awarded CRRA's MGLS contract since at least 2006. Brown Rudnick employs registered lobbyists and at least one elected public official, and members of Brown Rudnick have had prior professional relationships as well as familial relationships with members of CRRA's management. " CRRA engaged in conduct to subvert competition for municipal government services by maintaining a private agreement with Brown Rudnick that CRRA would award the MGLS contract to Brown Rudnick for a flat fee of $84.000 each year, regardless of the amount of services provided." On May 26, 2006, without seeking bids, CRRA awarded a one-year MGLS contract to Brown Rudnick for $84,000. " CRRA agreed to pay that fee in order to secure impermissible lobbying services from Brown Rudnick, which was not a criteria in any of the RFPs for the MGLS contract." " It was known in the market that CRRA would not consider anyone other than Brown Rudnick for the MGLS contract."
On May 21, 2007, Tom Kirk, CRRA's president, informed Brown Rudnick via email that renewal of its contract should not be an issue but that they would have to " go through the motions" of committee and board of directors approval. On May 24, 2007, Kirk sent another e-mail to Brown Rudnick, stating that CRRA would need to issue a request for proposal (RFP) for the MGLS contract in order to " help [CRRA] defend [its] choice." The e-mail further indicated that Brown Rudnick would receive a package that it was to " respond to as [it had] in the past" and that the parties' existing contract would be extended on a month-to-month basis until a new one was put into effect. On May 31, 2007, CRRA extended Brown Rudnick's contract to June 30, 2007. CRRA subsequently extended the contract to September 30, 2007, and, on September 27, 2007, CRRA again renewed Brown Rudnick's contract until September 30, 2008. After that date, CRRA continued to pay Brown Rudnick pursuant to the terms of the expired contract.
In an August 18, 2009 e-mail, a CRRA official informed another CRRA official that CRRA intended to again award the MGLS contract to Brown Rudnick, but that in order to create the impression of propriety, Brown Rudnick wanted to be interviewed so that CRRA could say it had " check[ed] the box." On November 1, 2009, CRRA awarded the MGLS contract to Brown Rudnick until October 31, 2010. Subsequently, on October 25, 2010, CRRA again without bidding, extended the contract with Brown Rudnick until October 31, 2011.
In advance of the expiration of that contract, CRRA issued an RFP for the MGLS contract. Tremont submitted a bid in response, complying with all of the requirements of the RFP. Brown Rudnick was the only other party that submitted a bid, and it failed to propose an hourly fee as it was required to pursuant to the RFP. " In a subsequent proposal to CRRA for legal services, Brown Rudnick proposed an hourly rate for [its employee] Thomas Ritter that was higher than the hourly rate proposed by Tremont Public Advisors in response to the 2011 MGLS RFP." " CRRA and Brown Rudnick were both aware that the number of hours anticipated each month that was published in the MGLS RFP was fabricated and without any basis, which allowed Brown Rudnick to adjust its bid to conceal its inflated hourly rate." " In order to secure lobbying services covertly, CRRA and Brown Rudnick conspired for Brown Rudnick to receive the MGLS contract. As part of their conspiracy, in order to cloak the nature of some of the services, CRRA and Brown Rudnick agreed that the municipal government liaison services would be provided on a flat fee basis, that the services would not be described on the invoices and that the services would be generically described on the invoices as 'General Business Advice.'" " Regardless of how qualified [a] bidder [was] or the price of their bid, CRRA had no intention of awarding the MGLS contract to any entity than Thomas Ritter of Brown Rudnick." " Qualified bidders did not respon[d], and those that respond[ed] were not considered."
CRRA evaluated the bids in a biased manner to ensure Brown Rudnick's selection. Despite a CRRA official's assurances to Tremont that CRRA was delayed in reviewing proposals, no interviews were ever held, and, on September 12, 2011, without any action by CRRA's board of directors, CRRA informed Tremont that the contract had been awarded to Brown Rudnick. " Brown Rudnick's fee for its municipal government liaison services was inflated over the market rate." " Brown Rudnick's performance of the MGLS contract was poor." " Due to the poor quality of the performance of the MGLS contract, upon information and belief, several municipalities left CRRA." On September 15, 2011, two CRRA officials, one of whom was appointed by a partner at Brown Rudnick in his capacity as an elected official, voted to recommend to the board of directors that Brown Rudnick be awarded the contract for the period of November 1, 2011 to June 30, 2014.
On September 23, 2011, in response to a Freedom of Information Act request by Matthew Hennessy, Tremont's managing director, CRRA produced an affidavit sworn by Kirk stating that because negotiations with Brown Rudnick over the MGLS contract had not ended and the contract had not been executed, it was in the public interest that documents concerning the MGLS RFP not be released. Although CRRA's board of directors was prepared to vote on whether to award the contract to Brown Rudnick at its meeting on September 29, 2011, CRRA bypassed its board and extended the contract until October 31, 2012, due to uncertainty over whether a majority of the board would have approved the award. Subsequently, in October 2012, absent a vote of its board of directors, CRRA folded the MGLS contract into its general legal services contract with Brown Rudnick.
Tremont further alleges that CRRA, which is prohibited from retaining a lobbyist pursuant to General Statutes § 1-101bb, retained the services of registered lobbyists employed by Brown Rudnick. CRRA was aware of Brown Rudnick's communication with members of the legislature and executive branch on its behalf under the auspices of the MGLS contract, and Brown Rudnick's invoices to CRRA contained no information regarding the specific services performed, in an effort to conceal the nature of its activities.
Without setting forth specific facts, Tremont also alleges that " [b]y [CRRA and Brown Rudnick] engaging in anticompetitive activity and eliminating the market of potential bidders [for the MGLS contract], the quality of services provided under the MGLS contract was compromised and Brown Rudnick's inflated price was not . . . subject to market competition." Furthermore, " [b]y [CRRA] awarding the MGLS contract to Brown Rudnick, and allowing [Brown Rudnick] to bill a flat rate to conceal its activities under the contract, CRRA paid an inflated price for the services it received, which in turn harmed the member towns who had to bear the cost through higher tipping fees." Tremont does not attribute any dates to these allegations in the second substituted complaint.
Viewing the foregoing allegations broadly, Tremont appears to be asserting that CRRA's failure to engage in legitimate competitive bidding in violation of § 22a-268, its retention of lobbyists in violation of § 1-101bb, and agreement(s) with Brown Rudnick to award the MGLS contract solely to Brown Rudnick, together constitute a " contract, combination, or conspiracy in restraint of trade or commerce, " in violation of the Connecticut Antitrust Act (Antitrust Act), General Statutes § 35-24 et seq.
On May 24, 2016, CRRA filed a motion to dismiss Tremont's second substituted complaint on the ground of subject matter jurisdiction because (1) Tremont lacked standing to bring an antitrust claim; (2) the Connecticut antitrust act " does not apply to the conduct of quasi-public agencies like CRRA, when they are acting in furtherance of their statutory obligations"; and (3) the CRRA is immune from damages under the Local Government Antitrust Act. Counsel for CRRA stated at oral argument that it was re-stating the arguments set forth in its previous motions to dismiss to preserve its appellate rights, and asked the court to consider the memoranda and arguments presented on the earlier motions.
Also, on May 24, 2016, CRRA filed a motion to strike Tremont's second substituted complaint, and memorandum in support, on the ground the complaint is vague and does not sufficiently allege an antitrust injury to a relevant market and fails to allege that Tremont is an efficient enforcer of market rights. CRRA also moves to strike Tremont's claim for monetary damages because the CRRA is immune from monetary damages if this court applies the Local Government Antitrust Act to this matter. Finally, CRRA asks this court to " use its authority under Practice Book Section 10-60 to restrain any further futile pleadings and award CRRA its fees and costs."
On July 8, 2016, Tremont filed a memorandum of law in opposition to the motion to dismiss and motion to strike. Tremont argued the court has already determined that pursuant to Cheryl Terry Enters. v. City of Hartford, 270 Conn. 619, 854 A.2d 1066 (2004), a party has standing to bring an antitrust claim against a competitor when it implicates the municipal bidding process. In the present case, Tremont argues that its " allegations are nearly identical to those asserted in Cheryl Terry "; it has sufficiently alleged an antitrust injury to a relevant market; and, it is an efficient enforcer of market rights. On July 21, 2016, CRRA filed a reply. The court heard the matter at oral argument on August 24, 2016, and subsequently ordered the parties to file simultaneous supplemental briefs on the question of whether this court has subject matter jurisdiction over the second substituted complaint. In accordance with that order, both parties filed supplemental memoranda by January 6, 2017.
I
MOTION TO DISMISS
A
Standard
" In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006). " Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings . . ." (Internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 531-32, 46 A.3d 102 (2012). " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). " [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2014).
1
Standing
CRRA moves to dismiss Tremont's complaint for lack of standing to bring its antitrust claim. CRRA argues for the fourth time in this proceeding that " Tremont is not in a position to assert any claim against CRRA" because " Tremont lacks standing under the Antitrust Act to challenge a contract to which it is not a party." Most recently, in a memorandum of decision filed March 31, 2016 (docket entry #182), this court denied the motion to dismiss concluding as follows: " Tremont is a limited liability company and therefore qualifies as a 'person' under the [Connecticut Antitrust] Act. See General Statutes § 35-25(b) (" '[p]erson' means any individual, proprietorship, corporation, limited liability company . . . or any other legal or commercial entity . . ."). Tremont alleges that it was injured in its business and seeks treble damages; see § 35-35; it also seeks injunctive relief as a result of the alleged violations. See General Statutes § 35-34. Furthermore, Tremont alleges several facts in support of its antitrust claim that supports its standing to bring the claim. For instance, Tremont alleges actions taken by Brown Rudnick which would qualify as lobbying activities on behalf of CRRA under General Statutes § 1-91. Tremont also alleges that CRRA violated its procurement policies and § 22a-268 by considering only one bidder for its MGLS contracts, and further alleges certain improprieties with the 2011 bidding process. Taken together, and in light of the General Assembly's broad conferral of standing under the Antitrust Act recognized by the court in Cheryl Terry Enterprises, Ltd. v. Hartford, as well as the court's duty to indulge every presumption in favor of jurisdiction, Tremont has pleaded a colorable antitrust claim to establish standing to invoke the court's subject matter jurisdiction."
CRRA did not file a motion for reconsideration of the March 31, 2016 decision denying the motion to dismiss on the issue of standing. Instead, counsel for CRRA indicated at oral argument that it is, essentially, re-pleading its earlier motions to dismiss to preserve its appellate rights. In Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982), the Supreme Court explained " [t]he law of the case . . . expresses the practice of judges generally to refuse to reopen what has been decided . . . New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored . . . But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance . . . A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge." (Citations omitted; internal quotation marks omitted.) Id.
In the context of the pending motion to dismiss, CRRA presents the same argument made in a previous motion to dismiss that Tremont lacks standing under Connecticut's Antitrust Act. It has not argued that the denial of the previous motion to dismiss was wrongly determined. Accordingly, the court's March 31, 2016 decision that Tremont has standing to assert a claim under Connecticut's Antitrust Statute, even though Tremont has not alleged breach of contract or contractual privity in the complaint, is the law of the case. The court declines the invitation to revisit that decision, particularly in light of CRRA's failure to timely move for reconsideration under the Practice Book. See Breen v. Phelps, supra, 186 Conn. 99.
2
CRRA's Statutory Obligations & MGLS Contract
CRRA also moves for a second time to dismiss Tremont's complaint for lack of subject matter jurisdiction on the ground the Connecticut Antitrust Act " does not apply to the conduct of quasi-public agencies like CRRA, when they are acting in furtherance of their statutory obligations." This issue has also been previously raised by CRRA and rejected by the court in an earlier memorandum of decision, dated July 7, 2014 (docket entry #142). The court noted in that decision that " [w]hile CRRA argues that its conduct in awarding the MGLS contract to Brown Rudnick was directed by statute, the plain language of the statute does not support this assertion. Section 22a-268 leaves CRRA to its discretion in determining whether and by what process to enter into contracts with third parties, as well as the nature of such contracts. CRRA was not commanded, by virtue of the statute, to engage in competitive bidding for any services. In issuing the RFP for MGLS services, and allegedly engaging in anticompetitive activity, CRRA was not acting pursuant to a statutorily prescribed course of conduct."
CRRA did not move for reconsideration of the July 7, 2014 denial of the motion to dismiss on the foregoing ground. Nor has it argued that the court wrongly decided that CRRA was not commanded to engage in competitive bidding for any services, including the MGLS contract. Accordingly, the court's July 7, 2014 (#142), decision on this issue is the law of the case. The court declines the invitation to revisit that decision in light of CRRA's failure to timely move for reconsideration under the Practice Book. See Breen v. Phelps, supra, 186 Conn. 99.
3
Local Government Antitrust Act
CRRA also moves to dismiss the second substituted complaint on the ground of lack of subject matter jurisdiction because the Local Government Antitrust Act, 15 U.S.C. § § 34-36 (2017), provides that a court may not assess antitrust damages against a municipality. In support of this argument, CRRA identifies the Superior Court decision in Cheryl Terry Enterprises, Ltd. v. Hartford, Superior Court, judicial district of New London, Docket No. CV-98-0547097-S, (February 22, 2001, Corradino, J.), which applied the Local Government Antitrust Act to Connecticut's Antitrust Act, and concluded that the court could not award monetary damages against the City of Hartford. Relying on that decision, CRRA argues that because the court cannot assess monetary damages under the Local Government Antitrust Act against the CRRA, a quasi-public agency, the case must be dismissed. The Supreme Court, however, reversed the trial court decision in Cheryl Terry Enterprises, Ltd. v. Hartford, supra, 270 Conn. 619. In issuing its opinion, the Supreme Court did not specifically address whether the Local Government Antitrust Act applies to municipalities. Id. In its opposition to the motion to dismiss, Tremont argues that the Local Government Antitrust Act does not apply and does not deprive this court of subject matter jurisdiction to consider its claim for damages against CRRA. Tremont further contends that the Supreme Court, in fact, assessed monetary damages against the City of Hartford in Cheryl Terry under Connecticut's Antitrust Act.
Our Supreme Court has acknowledged that courts may exercise discretion and look to federal statutes for guidance in resolving antitrust claims under Connecticut's antitrust statute. " Enacted in 1971 . . . the [Antitrust Act] incorporates, in modified form, and with notable exceptions, various provisions of such federal antitrust laws as, for example, the Sherman Act . . . the Clayton Act . . . the Antitrust Civil Process Act . . . and of such state antitrust laws as the provisions embodied in the proposed Uniform State Antitrust Act . . . Under these circumstances, reference to opinions of courts in other jurisdictions, federal and state, on pertinent antitrust law issues, where appropriate, are an aid to [Connecticut courts'] interpretation of certain questions arising under the present Connecticut statute." (Citations omitted; footnotes omitted.) Mazzola v. Southern New England Telephone Co ., 169 Conn. 344, 347-48, 363 A.2d 170 (1975).
Our appellate courts have not specifically addressed the question of whether it is appropriate to apply the Local Government Antitrust Act to Connecticut's Antitrust Act. The Connecticut Supreme Court, however, has identified ways in which the federal state action immunity doctrine could apply under Connecticut's Antitrust Act. In recognition of this application, the July 7, 2014 memorandum of decision of this court cited Miller's Pond Co., LLC v. New London, 273 Conn. 786, 825, 873 A.2d 965 (2005), for the proposition that " immunity from antitrust liability will attach only if the statute under which protection is sought speaks directly to the challenged conduct." This court also found " [t]he Connecticut Supreme Court, interpreting the decision of the United States Supreme Court in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), explained that '[u]nder the Parker rationale, the threshold inquiry in determining if an anticompetitive activity is state action of the type the . . . [Antitrust Act] was not meant to proscribe is whether the activity is required by the State acting as sovereign . . . The Parker doctrine draws a firm line, in short, between activities actually commanded by the state, which are immune from antitrust liability and action merely approved or tolerated . . . As the Parker court itself declared, a state does not give immunity to those who violate the [Antitrust Act] by authorizing them to violate [it], or by declaring that their action is lawful . . . It is not enough, the United States Supreme Court recently stated, that . . . anticompetitive conduct is prompted by state action; rather, anticompetitive activities must be compelled by the direction of the State acting as a sovereign . . . Such is not the case when there is little or no agency insistence upon specific acts or policies . . .' (Citations omitted; emphasis omitted; internal quotation marks omitted.) Mazzola v. Southern New England Telephone Co., supra, 169 Conn. 361-62."
Tremont argues that CRRA is an entity that " can sue and be sued" under General Statutes § 22a-260 and so may be sued for damages. The inquiry, however, does not end here. Nevertheless, neither Tremont nor CRRA challenged this court's July 7, 2014 decision that " Section 22a-268 leaves CRRA to its discretion in determining whether and by what process to enter into contracts with third parties, as well as the nature of such contracts. CRRA was not commanded, by virtue of the statute, to engage in competitive bidding for any services." CRRA was not statutorily obliged to contract for the MGLS position, and therefore, the federal state action immunity doctrine, and its limitation on monetary damages under the Local Government Antitrust Act, does not apply to this discretionary activity by CRRA.
Our Supreme Court has determined it is the state legislature that defines the contour of our state statutes. For example, in Cheryl Terry Enterprises, Ltd. v. Hartford, supra, 270 Conn. 622-23 and 633 n.11, the court suggested that if the legislature intended for municipalities not to be assessed monetary damages, the exclusion would be included in Connecticut's Antitrust Statute. For all of the foregoing reasons, the court finds that the Local Government Antitrust Act does not apply to the present complaint, and therefore, the court is not deprived of subject matter jurisdiction to hear the plaintiff's monetary damages claim against the CRRA. Accordingly, the defendant's motion to dismiss the second substituted complaint must be denied.
II
MOTION TO STRIKE
CRRA moves to strike Tremont's second substituted complaint on the ground the complaint is vague and does not sufficiently allege an antitrust injury to a relevant market and Tremont fails to allege facts to support the additional element that it is an efficient enforcer of market rights. Tremont counters that it has sufficiently alleged an antitrust injury to a relevant market and argues that it is an efficient enforcer of those market rights. CRRA also moves to strike Tremont's claim for monetary damages because monetary damages are not permitted against it if this court finds the Local Government Antitrust Act applicable. As addressed in part I(A)(3) of this memorandum of decision, the court has rejected the defendant's claim that the Local Government Antitrust Act bars Tremont's claim for monetary damages under the Connecticut Antitrust Act. Therefore, this court declines to strike Tremont's damages claim set forth in its prayer for relief on that ground.
A
Standard
A motion to strike challenges " the legal sufficiency of the allegations of [a] complaint . . . to state a claim upon which relief can be granted." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003); see Practice Book § 10-39. Consequently, a review of a motion to strike " requires no factual findings by the trial court." Simms v. Seaman, 308 Conn. 523, 529, 69 A.3d 880 (2013). " [I]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Citation omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " [P]leadings are to be construed broadly and realistically, rather than narrowly and technically . . ." (Internal quotation marks omitted.) Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012). A motion to strike is properly granted, however, " if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013)."
1
Pleading a Per Se Antitrust Injury
In its March 31, 2016 memorandum of decision (#182), the court determined that to state a legally sustainable claim under Connecticut's Antitrust Act, the plaintiff must sufficiently plead an antitrust injury. " To establish a per se claim under the Sherman Act and the Connecticut Antitrust Act, based on allegations of bid-rigging, a plaintiff must plead facts establishing that the parties to the alleged agreement have a horizontal relationship, that is that the agreement is between competitors. See, e.g., United States v. Koppers Co ., 652 F.2d 290, 297 (2d Cir. 1981) (in cases involving such behavior as bid-rigging, 'the Sherman Act will be read as simply-saying: " An agreement among competitors to rig bids is illegal'"); see also Business Electronics Corp. v. Sharp Electronics Corp ., 485 U.S. 717, 734, 108 S.Ct. 1515, 99 L.Ed.2d 808 (1988) (stating that the 'notion of equivalence between the scope of the horizontal per se illegality and that of vertical per se illegality' has been explicitly rejected 'since a horizontal agreement to divide territories is per se illegal, while . . . a vertical agreement to do so is not'). Thus, in order for alleged bid-rigging conduct to be unreasonable per se [the parties to] the alleged agreement must have a horizontal relationship. 'Restraints imposed by agreement between competitors have traditionally be denominated as horizontal restraints, and those imposed by agreement between firms at different levels of distribution as vertical restraints.' Business Electronics Corp. v. Sharp Electronics Corp., supra, 485 U.S. at 734."
Tremont did not move for reconsideration of the March 31, 2016 memorandum of decision (#182), which identified binding United States Supreme Court principles of law to state an actionable bid-rigging claim. Therefore, the March 31, 2016 memorandum of decision reflects the law of the case. See Breen v. Phelps, supra, 186 Conn. 99. Yet, Tremont improperly suggests in its opposition to the defendant's motion to strike the second substituted complaint, that this court may ignore binding United States Supreme Court authority and now conclude that Cheryl Terry Enterprises, Ltd. v. Hartford, supra, 270 Conn. 619, may be read to infer that a bid-rigging claim may be asserted under Connecticut's Antitrust Act arising out of an agreement between parties in a vertical relationship, namely, between the CRRA and Brown Rudnick. The relationship of the parties was not contested in Cheryl Terry and was not addressed by the Connecticut Supreme Court. In the present case, Tremont alleges that CRRA, the party awarding the MGLS contract, entered into a conspiratorial agreement with Brown Rudnick, a bidder on the MGLS contract, to award the MGLS contract to Brown Rudnick exclusively. Even assuming that CRRA and Brown Rudnick had such an agreement, based on the foregoing allegations, Tremont has alleged a vertical relationship between CRRA and Brown Rudnick, which according to the United States Supreme Court is not per se illegal. See Business Electronics Corp. v. Sharp Electronics Corp., supra, 485 U.S. at 734. Further, this court declines to ignore United States Supreme Court precedent and create a new per se antitrust violation under Connecticut's Antitrust Act based upon a reading of an issue that was not before the Connecticut Supreme Court in Cheryl Terry Enterprises, Ltd. v. Hartford, supra, 270 Conn. 619.
Pleading an Antitrust Injury under Rule of Reason Analysis
The March 31, 2016 memorandum of decision (#182), also identified the standard for stating an antitrust claim under the rule of reason. " Most antitrust claims . . . are analyzed under a rule of reason analysis which seeks to determine if the alleged restraint is unreasonable because its anticompetitive effects outweigh its procompetitive effects . . . 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 . . . 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 . . . 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 relative market . . . Anticompetitive effects, more commonly referred to as 'injury to competition' or 'harm to the competitive process, ' are usually measured by a reduction in output and an increase in prices in the relevant market." (Citations omitted; internal quotation marks omitted.) Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 215-16, 32 A.3d 296 (2011). Tremont did not move for reconsideration of the March 31, 2016 memorandum of decision (#182), finding that if Tremont had not stated a per se illegal claim under Connecticut's Antitrust Act, then the court must analyze whether Tremont validly stated an antitrust claim under rule of reason analysis, including whether Tremont has sufficiently pleaded an antitrust injury to a relevant market. Because there was no such challenge to the court decision, its conclusions and analysis constitutes the law of the case. See Breen v. Phelps, supra, 186 Conn. 99. Tremont argues in its memorandum of law in opposition to the motion to strike, however, that this case is factually different from Bridgeport Harbour and that it has sufficiently stated an antitrust injury to a relevant market, of which it is an efficient enforcer. On the other hand, CRRA argues that Tremont fares no better with the second substituted complaint, which still falls short of alleging a valid antitrust injury to a relevant market or that it is an efficient enforcer of rights of any market.
a
Antitrust Injury to a Relevant Market
Previously, this court has identified the standard for pleading an antitrust injury under Connecticut's Antitrust Act. The March 31, 2016 memorandum of decision (#182), held " to sufficiently state a claim, the complaint must allege anticompetitive effects, more commonly referred to as injury to competition or harm to the competitive process, usually measured by factors such as reduction in output or raised prices and decreased quality in the relevant market. See Bridgeport Harbour Place I, LLC v. Ganim, supra, 303 Conn. 205, 215-17 (claim under the Connecticut Antitrust Act must allege 'reduced output or raised prices, the sine qua non of an antitrust injury')." Tremont did not move for reconsideration of the March 31, 2016 memorandum of decision (#182) regarding the standard for pleading an antitrust claim under Connecticut's Antitrust Act. Accordingly, that decision reflects the law of the case. See Breen v. Phelps, supra, 186 Conn. 99.
The March 31, 2016 memorandum of decision (#182), identified the pleading deficiencies in the (first) substituted complaint. Tremont's allegation in the substituted complaint that as a result of the conspiracy between CRRA and Brown Rudnick to award the MGLS contract to Brown Rudnick, there was a reduction in the number of bidders for the MGLS contract was [held to be] legally insufficient in that it did not " sufficiently allege an anticompetitive injury to a relevant market other than in conclusory terms." The decision also noted that " there is no allegation [in the substituted complaint] to demonstrate that CRRA activity had an actual adverse effect on competition as a whole in the relevant market of which Tremont is a member."
The second substituted complaint is no better. Tremont pleads that " [t]he market for municipal government liaison services includes many providers such as public affairs businesses and government relations professionals [and] Tremont Public Advisors is a participant in that market." Second Substituted Complaint ¶ ¶ 88-89. Further, Tremont states in its allegations of conspiracy between CRRA and Brown Rudnick to award the 2011 MGLS contract to Brown Rudnick that " [q]ualified bidders [for the MGLS contract] did not respon[d], and those that respond[ed] were not considered." ¶ 105. " Brown Rudnick's fee for its municipal government liaison services was inflated over the market rate." ¶ 108. " Brown Rudnick's performance of the MGLS contract was poor." ¶ 106. " Due to the poor quality of the performance of the MGLS contract, upon information and belief, several municipalities left CRRA." ¶ 107. Tremont further pleads that by " [CRRA and Brown Rudnick] engaging in anticompetitive activity and eliminating the market of potential bidders [for the MGLS contract], the quality of services provided under the MGLS contract was compromised and Brown Rudnick's inflated price [has] not been subject to market competition." ¶ 110. As mentioned previously, in connection with allegations concerning the 2011 MGLS contract, Tremont states that " [q]ualified bidders [for the MGLS contract] did not respon[d], and those that respond[ed] were not considered"; ¶ 105; however, Tremont also alleges at the beginning of the second substituted complaint that " Brown Rudnick was the only other party [than Tremont] that submitted a bid in response to the 2011 MGLS RFP." ¶ 41. Tremont has not specified which qualified bidders did not respond to the 2011 MGLS RFP. Accordingly, to the extent that Tremont is alleging a market effect of a reduction in bidders for the 2011 MGLS contract, the allegations in the second substituted complaint are conclusory and legally insufficient.
Tremont also alleges that " Brown Rudnick's performance of the MGLS contract was poor." ¶ 106. " Due to the poor quality of the performance of the MGLS contract, upon information and belief, several municipalities left CRRA." ¶ 107. As stated previously, Tremont alleges that since 2006 Brown Rudnick has been awarded the MGLS contract but does not identify which municipalities left CRRA based on Brown Rudnick's " poor" performance of the MGLS contract in any year. To the extent that Tremont seeks to allege an antitrust injury based upon municipalities leaving CRRA, as was the case with the allegations relating to other bidders, the allegations concerning municipalities leaving CRRA are also conclusory and legally insufficient.
In addition, Tremont alleges in the second substituted complaint that as a result of the anticompetitive activity between CRRA and Brown Rudnick and the elimination of the market for bidders, Brown Rudnick's inflated price was not subject to market competition. See ¶ 110. As noted earlier, Tremont has not alleged which potential MGLS bidders had not submitted a bid, or which bidders other than Tremont, had not been considered for the 2011 MGLS contract. Without those specific allegations, Tremont's statements that the CRRA and Brown Rudnick " eliminated the market for bidders, " and " Brown Rudnick's inflated price was not subject to market competition" are conclusory and legally insufficient.
Tremont further alleges in the second substituted complaint that " [b]y [CRRA] awarding the MGLS contract to Brown Rudnick and allowing [Brown Rudnick] to bill a flat rate to conceal its activities under the contract, CRRA paid an inflated price for the services it received, which in turn harmed the member towns who had to bear the cost through higher tipping fees." ¶ 111. As discussed above, Tremont alleges that CRRA has awarded Brown Rudnick the MGLS contract since 2006. It is unclear when Brown Rudnick billed a flat rate and when CRRA paid an inflated price for the services it received in the relevant time period. The only statement in the second substituted complaint that suggests a different form of bidding is an allegation that " [i]n 2002, before CRRA engaged in anticompetitive activity with Brown Rudnick, CRRA received substantially similar services for a monthly fee of $4,000 a month." ¶ 109. It is entirely unclear from the second substituted complaint whether Tremont is stating that CRRA received this rate from a different bidder, or from Brown Rudnick, and how this may relate to the 2011 MGLS bid that Tremont submitted.
As stated in the March 26, 2016 memorandum of decision (#182), and earlier herein, " to sufficiently state a claim, the complaint must allege 'anticompetitive effects, more commonly referred to as injury to competition' or 'harm to the competitive process, ' usually measured by a 'reduction in output' [and increase in] prices and 'decreased quality' in the relevant market. See Bridgeport Harbour Place I, LLC v. Ganim, supra, 303 Conn. 205, 215-17 (claim under the Connecticut Antitrust Act must allege 'reduced output or raised prices, the sine qua non of an antitrust injury')." See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (recognizing that in pleading antitrust claim " a formulaic recitation of the elements of a cause of action will not do . . . Factual allegations must be enough to raise a right to relief above the speculative level . . ." [citation omitted]). For all of these reasons, Tremont has not pleaded a legally sufficient antitrust injury to a relevant market.
Accordingly, based on the noted deficiencies in the second substituted complaint, the motion to strike must be granted.
b
Efficient Enforcer of Market Rights
As recognized earlier in this memorandum of decision, our appellate courts acknowledge " that in construing [Connecticut's Antitrust Act], the courts of this state shall be guided by interpretations given by the federal courts to federal antitrust statutes." Vacco v. Microsoft, 260 Conn. 59, 73, 793 A.2d 1048 (2002). Our appellate courts, however, have not explicitly adopted or applied the " efficient enforcer" test to Connecticut's antitrust statute as outlined by the United States Supreme Court decision of Associated General Contractors of California, Inc. v. California State Council of Carpenters, supra, 459 U.S. 540-46 (adopting this test for analyzing standing under federal antitrust laws). For these reasons, the court declines, to strike or dismiss the second substituted complaint based on an " efficient enforcer" test. Nonetheless, because Tremont and CRRA each address this concept in their memoranda of law on the motion to strike, the court addresses it herein.
CRRA moves to strike the second substituted complaint on the ground Tremont has not alleged that it is an efficient enforcer of market rights of which it is a participant. CRRA argues " Tremont does not allege a market, let alone one for which it could be an enforcer." According to CRRA, " [w]hether the relevant market consists of possible bidders or municipalities, Tremont cannot show that it is an efficient enforcer of market rights. If the market consists of possible bidders, Tremont includes no allegations about how it is similarly situated to those persons or entities . . . If Tremont's market consists of municipalities, then it is certainly not an efficient enforcer of those rights. Tremont is not a municipality. Tremont does not represent the citizens of a municipality. And Tremont makes no effort to explain why it should be selected as the champion of the rights of the municipalities."
Tremont counters with an argument stated in general terms that the Supreme Court has held " an unsuccessful bidder has standing under the state's Antitrust Act to challenge the award of the contract for which it was bidding [if it] was affected by anticompetitive activity. Cheryl Terry Enterprises, Ltd. v. Hartford, supra, 270 Conn. 632; see also Electrical Contractors, 303 Conn. 402, 35 A.3d 188 (electrical contractor who was not awarded a municipal contract because it would not agree to a project labor agreement has standing to bring an antitrust claim to challenge the bidding process)." Tremont goes on to argue " that if a public bidding process is affected by anticompetitive activity, unsuccessful bidders are efficient enforcers to bring a claim challenging that activity." Tremont further argues that " [t]he concept of 'efficient enforcer' is not a statutory element of an antitrust claim but is a concept of standing." Tremont also contends that unlike Tommy Lee Handbags Manufacturing, Ltd. v. 1948 Corp., 971 F.Supp.2d 368 (S.D.N.Y. 2013), in its second substituted complaint, and as stated above, " CRRA's conduct has not only harmed Tremont directly, but it has also affected the entire relevant market by diminishing competition within the market." In addition, Tremont states that CRRA's argument " ignores the Supreme Court's rulings and is another attempt to attack Tremont's standing. Indeed, to hold that Tremont is not an efficient enforcer would in effect overrule the holding in both Cheryl Terry and Electrical Contractors, and prevent any future bidders from challenging anti-competitive acts by municipal or quasi-public agencies."
This court's March 26, 2016 memorandum of decision (#182), stated " [t]o determine whether a putative antitrust plaintiff is an 'efficient enforcer' of the antitrust laws, [the court] examine[s] primarily the following factors: (1) the directness or indirectness of the asserted injury; (2) the existence of an identifiable class of persons whose self-interest would normally motivate them to vindicate the public interest in antitrust enforcement; (3) the speculativeness of the alleged injury; and (4) the difficulty of identifying damages and apportioning them among direct and indirect victims so as to avoid duplicative recoveries. [ Tommy Lee Handbags Manufacturing, Ltd. v. 1948 Corp., supra, 971 F.Supp.2d 385]." In fact, the United States Supreme Court articulated these factors in Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 540-46A, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983), in analyzing whether the plaintiff in that case had standing to bring its federal antitrust claim.
" Directness in the antitrust context means close in the chain of causation." International Business Machines Corp. v. Platform Solutions, Inc., 658 F.Supp.2d 603 (S.D.N.Y. 2009). Our Supreme Court in Vacco v. Microsoft Corp., supra, 260 Conn. 71-72, explained that the United States Supreme Court in Illinois Brick v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977), limited standing to " direct purchasers in relation to the antitrust defendant" because it " was concerned that allowing indirect purchasers to sue and, thereby, prove their damages under the pass on theory would transform treble-damages actions into massive efforts to apportion the recovery among all potential plaintiffs that could have absorbed part of the overcharge--from direct purchasers to middlemen to ultimate consumers." (Citations omitted; internal quotation marks omitted.) Id. For example, the Supreme Court concluded in Vacco v. Microsoft Corp., supra, 260 Conn. 76-77, that " allowing only those consumers who purchase directly from the antitrust defendant to bring suit under our state antitrust law ensures that the [Connecticut] Antitrust Act remains harmonious with federal antitrust statutes."
As a threshold matter, in the second substituted complaint, Tremont has not clearly indicated, either directly, or by implication, whether it is bringing this action on behalf of itself as a bidder or unidentified or unknown bidders not awarded the MGLS contract, or the municipalities who may, upon information and belief, have left the CRRA due to CRRA's awarding of the MGLS contract to Brown Rudnick, or (3) the taxpayers who allegedly have had to pay higher tipping fees. With regard to these last two options, Tremont has not included any allegations as to its standing to assert claims on behalf of a municipality or taxpayers. Nor has it addressed this court's earlier conclusion that Tremont is not a municipality and does not " represent the citizens of member municipalities of CRRA." For these reasons, the allegations in the second substituted complaint do not demonstrate that Tremont has suffered a direct antitrust injury.
Tremont alleges that it submitted a bid and was not awarded the 2011 MGLS contract; however, the remaining allegations, taken as a whole, also lead to a reasonable inference that the alleged conspiracy between Brown Rudnick and CRRA to award the MGLS contract exclusively to Brown Rudnick may have been formed earlier than 2011. Tremont would not have been directly injured by CRRA's awarding of an MGLS contract at any time other than 2011 since there is no allegation that Tremont bid on the MGLS contract until 2011. Compare Rock-It, Inc. v. Futura Coatings, Inc., 74 F.Supp.2d 420, 423-24 (D.VT. 1999) (finding plaintiff satisfied the first factor of being an efficient enforcer of the federal antitrust laws as plaintiff alleged she was directly injured, through being fired, on account of the defendants' alleged anticompetitive activities). In addition, Tremont does not allege that it was directly injured in the relevant market by not receiving the 2011 MGLS contract. Further, Tremont does not address this court's previous conclusion that " the purported injuries are an indirect result of the primary asserted antitrust violation, the bid-rigging."
The second factor in establishing standing as an " efficient enforcer" of federal antitrust laws requires the court to consider " the existence of an identifiable class of persons whose self-interest would normally motivate them to vindicate the public interest in antitrust enforcement." Tommy Lee Handbags Manufacturing, Ltd. v. 1948 Corp., supra, 971 F.Supp.2d 385. As addressed earlier, the court must consider for purposes of determining Tremont's status as an efficient enforcer, whether Tremont is purporting to bring this action on behalf of (1) itself as a bidder or unidentified or unknown bidders not awarded the MGLS contract, or (2) the municipalities who may, upon information and belief, have left the CRRA due to CRRA's awarding of the MGLS contract to Brown Rudnick, or (3) the taxpayers who would have had to pay higher tipping fees.
The United States Supreme Court in Associated General Contractors of California, Inc. v. California State Council of Carpenters, supra, 459 U.S. 542, explained the importance of reconciling whether the plaintiff is speaking on behalf of an identifiable class of persons whose self-interest would normally motivate them to vindicate the public interest in antitrust enforcement. In that case, a union brought an antitrust claim against the defendants, alleging the " defendants applied coercion against certain landowners and other contracting parties in order to cause them to divert business from certain union contractors to nonunion contracts." Id., 540. In addition to finding the union's " injuries were only an indirect result of whatever harm might have been suffered by certain construction contractors and subcontractors, " the United States Supreme Court explained if " either of these firms, or the immediate victims of coercion by defendants, have been injured by an antitrust violation, their injuries would be direct" and " they would have a right to maintain their own treble-damages actions against the defendants." Id., 540-41. The United States Supreme Court suggested those persons who suffered a direct injury as a result of the anticompetitive injury would be an identifiable class of persons. Id. In its second substituted complaint, Tremont has not sufficiently alleged that it is " speaking on behalf of an identifiable class of persons whose self-interest would normally motivate them to vindicate the public interest in antitrust enforcement." As stated and repeated previously, it is unclear on whose behalf that Tremont has brought this action: (1) itself as a bidder or unidentified or unknown bidders not awarded the MGLS contract, (2) the municipalities who may, upon information and belief, have left the CRRA due to CRRA's awarding of the MGLS contract to Brown Rudnick, or (3) the taxpayers who would have had to pay higher tipping fees. Further, Tremont has not alleged the names of any other market participants besides itself and Brown Rudnick for the MGLS contract; nor has it alleged that it has standing to speak on behalf of the municipalities or taxpayers who have had to pay higher tipping fees. Thus, Tremont has not set forth any specific factual allegations to demonstrate there is an identifiable class of persons for purposes of federal antitrust standing.
The third factor in establishing status as an " efficient enforcer" of federal antitrust laws requires the court to consider the " speculativeness of the alleged injury." Tommy Lee Handbags Manufacturing, Ltd. v. 1948 Corp., supra, 971 F.Supp.2d 385. In Gatt Communications, Inc. v. PMC Associates, LLC, supra, 711 F.3d at 79, the Second Circuit found the plaintiff's injury was speculative because the plaintiff had not " plausibly alleged that in the absence of the alleged scheme, its bids--rather than the bids of some other party--would have prevailed." The court acknowledged that other parties could have submitted competitive bids as well, and the plaintiff " offer[ed] no reason why it would have been more certain than these entities to win the contracts." Id. In the second substituted complaint, Tremont has not alleged that in the " absence of the alleged scheme, its [bid]--rather than the bids of some other party--would have prevailed." See Gatt Communications, Inc. v. PMC Associates, LLC, supra, 711 F.3d at 79. Further, Tremont has " offer[ed] no reason why it would have been more certain than these entities to win the contracts." See Id. Accordingly, Tremont has not demonstrated that the antitrust injury it allegedly suffered is not speculative.
The final factor in an " efficient enforcer" analysis requires the court to assess " the difficulty of identifying damages and apportioning them among direct and indirect victims so as to avoid duplicative recoveries." Tommy Lee Handbags Manufacturing, Ltd. v. 1948 Corp., supra, 971 F.Supp.2d 385. In Associated General Contractors of California, Inc. v. California State Council of Carpenters, supra, 459 U.S. 542-43, the United States Supreme Court explained this factor is important for purposes of federal antitrust standing because " massive and complex damages litigation not only burdens the courts, but also undermines the effectiveness of treble-damages suits." The court stated that " consequential harm resulting from a violation of the antitrust laws, " was " insufficient as a matter of law." Id., 546. As for the union's claims against the defendants, the court found that " [i]t would be necessary to determine to what extent the coerced firms diverted business away from union subcontractors, and then to what extent those subcontractors absorbed the damage to their business or passed it on to employees by reducing the work force or cutting hours or wages. In turn, it would be necessary to ascertain the extent to which the affected employees absorbed their losses and continued to pay union dues." Id., 546.
In the present case, the court has already concluded that " higher tipping fees" passed onto municipalities constitutes consequential or indirect harm. As stated above, according to Associated General Contractors of California, Inc., consequential harm is insufficient as matter of law for purposes of federal antitrust standing. Id., 546. Applying that decision to the present case, the allegations of the second substituted complaint fall short. The complaint does not identify any underlying facts to support the allegation of higher tipping fees paid by municipalities to CRRA and how any such higher tipping fees might be apportioned among the municipalities impacted on account of the alleged conspiracy between CRRA and Brown Rudnick to award one or more MGLS contracts to Brown Rudnick exclusively. Accordingly, based on the allegations of the complaint, it would not be possible for the court to identify the damages amount or to apportion them as between direct and indirect victims so as to avoid duplicative recoveries. Id., 546 n.52.
To the extent that being an " efficient enforcer" is required to state a claim under the Connecticut Antitrust Act, for all the foregoing reasons, the plaintiff has failed to meet the pleading requirements for this element.
III
PRECLUSION OF AMENDMENTS TO COMPLAINT UNDER PRACTICE BOOK § 10-60(b)
In its motion to strike the second substituted complaint, CRRA also seeks to preclude Tremont from making additional amendments to the second substituted complaint under Practice Book 10-60(b) and requests that the court enter a judgment of dismissal and award it costs and fees.
Practice Book § 10-44 allows a plaintiff fifteen days to file a new complaint after the granting of a motion to strike. If a new pleading is not filed within fifteen days, the court may, upon motion, enter judgment on the stricken complaint. See § 10-44. Practice Book § 10-60(b) provides: " The judicial authority may restrain . . . amendments [of pleadings] so far as may be necessary to compel the parties to join issue in a reasonable time for trial. If the amendment occasions delay in the trial or inconvenience to the other party, the judicial authority may award costs in its discretion in favor of the other party. For the purposes of this rule, a substituted pleading shall be considered an amendment. (See General Statutes § 52-130 and annotations.)"
" It is well settled that whether to allow an amendment to . . . [a] pleadings rests within the discretion of the trial court . . . The trial court's discretion imports something more than leeway in decision making and should be exercised in conformity with the spirt of the law and should not impede or defeat the ends of substantial justice . . . [T]he court will allow an amendment unless it will cause an unreasonable delay, mislead the opposing party, take unfair advantage of the opposing party or confuse the issues, or if there has been negligence or laches attaching to the offering party . . . The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion [to amend] will unduly delay a trial." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Miller v. Fishman, 102 Conn.App. 286, 291-94, 925 A.2d 441 (2007).
In the present case, CRRA asks the court to preclude Tremont from the opportunity to further amend its second substituted complaint. CRRA has not briefed the issue, nor provided any argument as to why the court should exercise its discretion in favor of CRRA and not afford Tremont the opportunity to replead. Sec Miller v. Fishman, supra, 102 Conn.App. 286. Accordingly, the court declines to advance arguments on behalf of CRRA and declines to grant this relief because it has neither made a formal motion or submitted an adequate brief. See Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (court " not required to review issues that have been improperly presented to this court through an inadequate brief"); Kortner v. Martise, 312 Conn. 1, 63-64, 91 A.3d 412 (2014) (" [when] an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed waived . . . In addition, mere conclusory assertions regarding a claim, with no mention of relevant authority and minimal or no citations from the record, will not suffice [citation omitted; internal quotation marks omitted]"). Our appellate courts have acknowledged that there is a " general rule [that] requires the parties to file a motion for judgment and the court to render judgment following the granting of the motion to strike in order to appeal." Zirinsky v. Zirinsky, 87 Conn.App. 257, 265, 865 A.2d 488 (2005). To the extent that CRRA is requesting judgment on its motion to strike, this court declines to do so. For similar reasons, the court denies CRRA's request for costs and fees as well.
IV
CONCLUSION
Accordingly, for all the foregoing reasons, the defendant's motion to dismiss the second substituted complaint is hereby denied. The court further denies the defendant's request to preclude monetary damages. The defendant's motion to strike the second substituted complaint is hereby granted. The defendant's requests for a judgment of dismissal and for costs and fees is also denied.