371 A.2d 396 | Conn. Super. Ct. | 1976
The present matter requires a determination of whether the demurrer addressed to the ninth count of the plaintiff's complaint by the defendants, the Anesthesia Associates of New Haven and the individual physicians who are members thereof, DelPizzo, D'Elia, Kazsanjian, and Golia, must be sustained. The demurrer alleges (1) that the plaintiff failed adequately to allege that he was injured in his business or property by the violation of the Connecticut Anti-Trust Act alleged in the ninth count and therefore lacks standing to raise the claim set forth therein, and (2) that the ninth count fails to state a cause of action against the defendants in that it fails adequately to allege that the plaintiff was injured in his business or property by the alleged violation of the Connecticut Anti-Trust Act set forth therein.
The plaintiff has filed a very lengthy and involved complaint based on the provisions of the recently enacted Connecticut Anti-Trust Act. General Statutes c. 624, §§
The allegations of the complaint set out that the plaintiff had been an employee of the defendant Anesthesia Associates for a three-year period up to March of 1976, during which time he held privileges to practice his specialty at the hospital and was on the medical staff there. In March of 1976, his employment was terminated by the defendant Anesthesia Associates. He thereafter sought permission from the hospital to practice anesthesiology as a physician in private practice, but that was denied him on the ground that only members and employees of the defendant Anesthesia Associates were permitted to practice anesthesiology at the hospital pursuant to a contract effectively in force.
On May 19, 1976, the plaintiff filed an amendment to the complaint setting forth a ninth count which incorporates paragraphs one through sixteen of the first count and paragraphs seventeen through twenty-six of the fifth count of the complaint. Paragraphs twenty-seven and twenty-eight of the ninth count then allege that:
"All fees, rates, prices and/or quotations charged by the defendant Hospital, defendant AANH and/or defendant doctors for anesthesia services performed at the Hospital are agreed upon and fixed by the named defendants.
"As a result of the aforementioned facts, the named defendants did knowingly and unlawfully combine, conspire, agree and have an understanding together with each other and/or with divers other persons for the purpose or with the effect of fixing, controlling or maintaining prices, rates, quotations or fees in violation of Section
The parties have submitted comprehensive legal memoranda raising the issue of whether the plaintiff *218 has alleged a valid basis upon which to invoke the provisions of the Connecticut Anti-Trust Act relied on by him in his complaint.
The questions raised are of first impression in Connecticut. By way of informative background, it may be noted that Connecticut joined the ferment of the new antitrust jurisprudence in 1911, the year the United States Supreme Court handed down its seminal ruling in Standard Oil Co. v. United States,
It is self-evident that the Connecticut antitrust legislation in issue herein was based on the federal antitrust enactments. This posit must frame any discussion of the issues herein.
The court notes for the record what would appear to be a jurisdictional omission. There is no allegation *219
of compliance with §
A resolution of the legal issues presented herein requires some analysis of the provisions of the Connecticut act. Implicit in the sections of chapter 624 is the fact that they concern themselves with "trade" or "commerce." Section
"Trade or commerce" are clearly the dominant chords and must be basically defined. Webster's Third New International Dictionary defines "trade" as "the business of buying and selling or bartering commodities: exchange of goods for convenience or profit." The same dictionary defines "commerce" as "the exchange or buying and selling of commodities especially on a large scale and involving transportation from place to place."
Given the paucity of legal interpretation of the precise issue herein, we must accept the premise advanced by the defendants that the Connecticut *220
Anti-Trust Act must be interpreted in the context of the applicable federal decisions. Two Connecticut Superior Court decisions have dealt peripherally with the Connecticut Anti-Trust Act. ConnecticutAssociation of Clinical Laboratories v. ConnecticutBlue Cross, Inc.,
The federal decisions make abundantly clear that there are two inescapable requirements for standing to bring an antitrust action seeking treble damages: (1) a plaintiff must show that he has suffered an injury to his "business or property"; and (2) any injury claimed to have been sustained must be shown to be "by reason of" the specific antitrust violation alleged.
Section
The United States Supreme Court has interpreted the meaning of the phrase "business or property" as used in
The second sine qua non of actionability requires the plaintiff to establish that he sustained injury or damage by reason of the antitrust violation. The plaintiff, in the substantive allegations of his complaint, claims that he was prevented from exercising his right to practice anesthesiology at the defendant hospital by reason of the contract existing between the defendants Anesthesia Associates and the Hospital of St. Raphael. The result of that, he claims, was reduction of income, embarrassment, loss of a fee of one patient, and his being forced to start practice outside the New Haven area. He makes no specific allegation that his claimed damages resulted from a price-fixing conspiracy.
Reibert v. Atlantic Richfield Co., supra, 731, succinctly deals with the "by reason of" and "by" requirement set out in §§ 4 and 16 of the Clayton Act,
The defendants emphasize in their memorandum of law that the other approach to standing explained *222
in some of the federal decisions is that the plaintiff must show that he was within the "target area" of the alleged price-fixing scheme. Various decisions in the Second Circuit Court of Appeals have explained that approach. Calderone Enterprises Corporation
v. United Artists Theatre Circuit,
In a case decided in the United States District Court for Connecticut, Kemp Pontiac-Cadillac, Inc.
v. Hartford Automobile Dealers' Assn.,
This court must agree with the defendants' contentions that since the plaintiff does not allege that he is a consumer availing himself of anesthesiology services, he cannot be deemed to be in the target area of the alleged price-fixing conspiracy. Whether patients who do in fact receive the anesthesiology services of the defendant, Anesthesia Associates of New Haven, or whether the public at large can assert those price-fixing claims, it is clear that the plaintiff, as a litigant trying to redress a public wrong without establishing a private injury, has no standing to do so under antitrust law. "Private litigants are not empowered to bring suit on behalf of the public in order to secure injunctive relief against allegedly unlawful practices harming the public *224
interest as a whole. . . ." Burkhead v. PhillipsPetroleum Co.,
Reference should be made to the recent decision of the United States Supreme Court in Goldfarb
v. Virginia State Bar,
The court has made reference to only a minuscule number of the multitude of decisions in the federal courts passing upon the myriad factual situations claimed to constitute violations of the Sherman Anti-Trust Act. In view of the lack of any guideline decisions in Connecticut, reliance must be made on the federal experience, particularly on the cases decided in the Second Circuit Court of Appeals. Based on the authority of the cases cited herein, this court is constrained to hold that the plaintiff's allegation set out in the ninth count of his complaint cannot under any reasonable interpretation afford him any valid basis for invoking the treble damage remedy provided by the Connecticut Anti-Trust Act. This court concludes that he does not have any "business *225 or property" which can be proximately injured "by reason of" or "by" any actions of the named defendants. And he is not within the target area of any possible antitrust violation under the provisions of chapter 624 as discussed hereinabove.
Accordingly, the defendants' demurrer is sustained.