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Tremont Public Advisors, LLC v. Connecticut Resources Recovery Authority

Superior Court of Connecticut, Judicial District of Hartford, Hartford

August 17, 2015

Tremont Public Advisors, LLC
v.
Connecticut Resources Recovery Authority

MEMORANDUM OF DECISION RE MOTION TO DISMISS

A. Susan Peck, J.

In its complaint dated March 5, 2013, 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. 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.

Since at least 2006, CRRA has contracted for Municipal Government Liaison Services (MGLS). 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. On May 26, 2006, without seeking bids, CRRA awarded a one-year MGLS contract to Brown Rudnick for $84, 000. 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 proposals (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. 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. 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.

In count one of its complaint, Tremont alleges that CRRA's failure to engage in legitimate competitive bidding in violation of § 22a-268 and its retention of lobbyists in violation of § 1-101bb constituted 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. In count two, Tremont asserts a common-law unsuccessful bidder claim against CRRA, alleging that in 2011 it illegally awarded the MGLS contract to Brown Rudnick based on favoritism, fraud, and/or corruption. In its prayer for relief, Tremont seeks an injunction prohibiting CRRA from utilizing outside lobbyists, an injunction awarding Tremont the MGLS contract, monetary damages, punitive damages, treble damages pursuant to General Statutes § 35-35, prejudgment and postjudgment interest pursuant to General Statutes § 37-3a, attorneys fees pursuant to § 35-35, and costs.

On January 21, 2014, CRRA filed a motion to dismiss both counts of Tremont's complaint on the grounds that the court lacks subject matter jurisdiction in that the plaintiff lacks standing to assert either of its claims and that count two of the complaint is moot. The motion was accompanied by a memorandum of law in support; an affidavit of Laurie Hunt (" Hunt affidavit"), CRRA's director of legal services; and a copy of the MGLS contract between CRRA and Brown Rudnick dated November 1, 2009. On February 20, 2014, Tremont filed a memorandum of law in objection to CRRA's motion to dismiss, accompanied by a copy of the minutes of CRRA's September 27, 2012 board meeting. On March 4, 2014, CRRA filed a reply memorandum of law in support of its motion to dismiss, accompanied by a copy of its RFP for the MGLS contract, dated May 23, 2011. The parties argued the matter at short calendar on March 10, 2014.

On July 7, 2014, in its initial memorandum of decision on CRRA's motion to dismiss, this court rejected CRRA's argument that Tremont did not have standing because § § 22a-268 and 1-101bb do not provide for private causes of action, noting that Tremont brought its claims under the Antitrust Act and the common law pertaining to unsuccessful bidders, respectively. The court also rejected CRRA's claim that the Antitrust Act did not apply to its activities because they were directed or required by statute. See General Statutes § 35-31(b). Further, the court concluded that it could not finally determine the issues of standing and mootness made by CRRA on the basis of the existing record. Accordingly, the court ordered the parties to attend a status conference on July 22, 2014 to discuss scheduling an evidentiary hearing.

At the status conference, the parties agreed that in lieu of an evidentiary hearing, they preferred to conduct discovery and submit supplemental memoranda on the motion to dismiss. Thereafter, Tremont and CRRA each filed a supplemental memorandum on March 18, 2015. Attached to the memoranda were numerous exhibits including copies of contracts, policies, and procedures; CRRA board meeting minutes; and portions of deposition transcripts. In addition, on March 24, 2015, CRRA filed a motion to strike count one of the complaint.[1] On April 27, 2015, Tremont filed a memorandum of law in opposition to the motion to strike. The court heard oral argument on the motion to dismiss and on the motion to strike on May 5, 2015.

I

MOTION TO DISMISS

" [A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).

A

Standing

" Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . . . Standing requires no more than a colorable claim of injury; a [party] ...


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