LLC v. LLC (2011)

MEMORANDUM OF DECISION

I

On December 29, 2009, the plaintiff, BThrifty, LLC, a Delaware limited liability company authorized to do business in the state of Connecticut, filed the instant suit against the defendants, Comcast Spotlight, LLC (Comcast Spotlight), Comcast Spotlight, Inc.,¹ Comcast Corporation (Comcast);  Cox Communications, Inc. (Cox);  and Melanie Torres, also known as Melonie Torres.²  In its amended complaint filed May 6, 2010, the plaintiff alleges that it provided marketing and advertising services, including cable television advertising, to small businesses.   Comcast and Cox allegedly conducted business under the trade name of Hartford New Haven Interconnect or Comcast Spotlight which solicited and sold advertising to be run on the different cable systems throughout the state.

Sometime in 2007, the plaintiff's representatives allegedly met with representatives from Comcast who committed, among other things, to sell advertising time to the plaintiff.   By the summer of 2008, the plaintiff alleges that it was providing so much advertising to its clients that the defendants began treating the plaintiff as a competitor and eventually drove it out of business.   In its amended complaint, the plaintiff alleges thirteen counts:  defamation (counts one through three);  intentional misrepresentation (count four);  negligent misrepresentation (count five);  tortious interference with contractual relationships (count six);  tortious interference with business expectations (count seven);  breach of fiduciary duty (count eight);  breach of covenant good faith and fair dealing (count nine);  violation of General Statutes § 35–27 of the Connecticut Antitrust Act, General Statutes § 35–24 et seq. (count ten);  violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a et seq. (count eleven);  a class action (count twelve);  and use of a fictitious business name in violation of General Statutes § 35–1 (count thirteen).

On June 10, 2010, Comcast, Comcast Spotlight and Torres moved to strike counts six, seven, eight, ten, twelve and thirteen of the amended complaint.   Cox joined the motion to strike on June 11, 2010.   The case was transferred to this docket on July 9, 2010.   On July 13, 2010, the plaintiff filed its memorandum in opposition to the motion to strike.   The defendants withdrew their motions to strike as to counts six, seven, eight and thirteen in a reply memoranda that they filed on November 1, 2010.   Thus, the only counts left to be addressed were the antitrust count (count ten) and the class action count (count twelve) and the court heard oral argument on these on December 20, 2010.   On February 24, 2011, the parties agreed during a conference call with the court that a decision on the motion to strike the antitrust count (count ten) should be stayed pending the Supreme Court's decision in the matter of Bridgeport Harbour Place I, LLC v. Ganim, SC No. 18290.   Hence, this memorandum of decision only addresses the defendants' motion to strike the class action count.³

II

“A motion to strike challenges the legal sufficiency of a pleading ․ and, consequently, requires no factual findings by the trial court ․ We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder.   In doing so, moreover, we read the allegations broadly ․ rather than narrowly.”  (Internal quotation marks omitted.)  Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).

III

The defendants move to strike count twelve seeking a class action on the grounds that the plaintiff has failed to allege what cause(s) of action it seeks to assert against the putative class.   The plaintiff responds that it has identified the putative class as:  (1) those advertisers who purchased “insertable” advertising ⁴ and did not receive it;  (2) those who purchased a certain amount of advertising and did not receive it;  and (3) those purchasers who were billed in excess of the quoted price.   The plaintiff further argues that the causes of action are self-evident and that there are common questions of law and fact including:  whether the defendants misrepresented that advertisements were “insertable”;  whether the defendants accepted purchases of advertisements that they knew they could not air;  and whether they engaged in unfair trade practices in procuring advertisements.

The court agrees that the plaintiff has failed to put the defendants on notice as to what the putative class' cause(s) of action might be.  “[T[he pleading should be such as fairly to apprise the adverse party of the state of facts which it is intended to prove ․” Practice Book § 10–2.  “One or more counts of the complaint should state the underlying facts showing the elements of any causes of action that the class, if certified, intends to prove.”   Majette v. New London Housing Authority, Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 04 5000090 (November 3, 2005, Beach, J.) (40 Conn. L. Rptr. 195, 197).

Additionally, “[a] trial court must undertake a rigorous analysis to determine whether the plaintiffs have borne the burden of demonstrating that the class certification requirements of Practice Book §§ 9–7 and 9–8 have been met.”  (Internal quotation marks omitted.)  Collins v. Anthem Health Plans, Inc., 275 Conn. 309, 320–21, 880 A.2d 106 (2005).   It will be impossible for the court to undertake such an analysis without knowing what cause(s) of action the plaintiff seeks to assert on behalf of the putative class.   See id., 331–32 (“[A] court should engage in a three part inquiry to determine whether common questions of law or fact predominate in any given case.   First, the court should review the elements of the causes of action that the plaintiffs seek to assert on behalf of the putative class ․”).⁵

Therefore, the defendants' motions to strike this count are granted.

Berger, J.

FOOTNOTES

FN1. Comcast Spotlight, LLC, was allegedly formerly known as Comcast Spotlight, Inc..  FN1. Comcast Spotlight, LLC, was allegedly formerly known as Comcast Spotlight, Inc.

FN2. Torres was allegedly an employee of Comcast or Comcast Spotlight..  FN2. Torres was allegedly an employee of Comcast or Comcast Spotlight.

FN3. This count is asserted against all of the defendants except for Torres..  FN3. This count is asserted against all of the defendants except for Torres.

FN4. The plaintiff alleges that “insertable” advertising is defined as “advertising that would appear on a particular network throughout the ‘Hartford New Haven Interconnect.’   By way of example, the defendants would solicit and accept advertising from the plaintiff and others to be run on the CNN network in each and every cable system in the ‘Hartford New Haven Interconnect.’ “.  FN4. The plaintiff alleges that “insertable” advertising is defined as “advertising that would appear on a particular network throughout the ‘Hartford New Haven Interconnect.’   By way of example, the defendants would solicit and accept advertising from the plaintiff and others to be run on the CNN network in each and every cable system in the ‘Hartford New Haven Interconnect.’ “

FN5. It should be noted, however, that even a cursory review of the plaintiff's current allegations suggests that they are wholly inadequate to meet the class certification requirements..  FN5. It should be noted, however, that even a cursory review of the plaintiff's current allegations suggests that they are wholly inadequate to meet the class certification requirements.

Berger, Marshall K., J.