The named plaintiff, Kristen Greene, and coplaintiffs Sean Greene and Orsini’s Sausages and Deli, LLC, commenced this action on March 18, 2006, against the named defendant, Doreen Orsini, and codefendants Carl Orsini, Cardoro’s, Inc., and Orsini’s Sausages Wholesale and Retail. In their revised complaint filed August 22, 2006, the plaintiffs allege the following facts. On February 11, 2003, for consideration of $185,000, the defendants sold to the plaintiffs the property of the business, along with the trade name “Orsini’s Sausages,” the business logo, and the defendants’ interest in the commercial lease of the premises. The plaintiffs also agreed to purchase sausages from the defendants exclusively for two years. On June 19, 2003, the defеndants agreed not to compete with the plaintiffs’ deli, sausage and bakery business within the geographic scope of twenty-five miles for a period of ten yeаrs.
The plaintiffs further claim that the defendants violated the noncompetition agreement on numerous occasions. The plaintiffs acknowledge that they ceased
On August 31, 2006, the defendants filed a motion to strike the third count on the ground that a breach of contract does not violate CUTPA absent allegations of substantial aggravating circumstancеs. In their supporting memorandum of law, the defendants argue that a breach of a contract, even an intentional breach, does not amount to a CUTPA violatiоn, unless the claimant shows substantial aggravating circumstances. The defendants argue that because the plaintiffs do not allege fraud, bad faith or other aggravating circumstances at the time the noncompetition agreement was executed, the plaintiffs’ third count does not sufficiently allege a CUTPA violation.
On September 11,2006, thе plaintiffs filed a memorandum of law in opposition to the motion to strike in which they argue that the revised complaint sufficiently alleges a CUTPA violation under the “cigаrette rule.” The plaintiffs argue that the allegations of multiple breaches of the noncompetition agreement and misrepresentations in the course of dealing satisfies any of the three prongs of the cigarette rule.
On October 23, 2006, the court, Hon. D. Michael Hurley, judge trial referee, denied the defendants’ motion to strike. On November 3, 2006, the defendants filed a motion to reargue, which the court, Hon. D. Michael Hurley, judge trial referee, granted on December 18, 2006. The plaintiff reclaimed the motion to strike on January 18, 2007, and the court heard the mattеr at short calendar on February 5, 2007.
I
DISCUSSION
General Statutes § 42-110b (a) provides that no person shall engage in unfair methods of competition and unfair or deceptive аcts or practices in the conduct of any trade or commerce. “It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [Wjhether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons]. ... All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all
three.” (Internal quotation marks omitted.)
Ventres
v.
Goodspeed Airport, LLC,
The same facts that establish a breach of contract claim may be sufficient to establish a CUTPA violation.
Lester
v.
Resort Camplands International, Inc.,
A simple breach of contract does not offend traditional notions of fairness and, standing alone, does not offend public policy so as to invoke CUTPA. A CUTPA claim lies where the facts alleged support a claim for more than a mere breach of contract. Depending upon the nature of the assertions, however, the same facts that establish a breach of contract claim may be sufficient to establish a CUTPA violation.
Lester
v.
Resort Camplands International, Inc.,
supra,
In Cadle Co. v. Multi Unit Services, Inc., Superior Court, judicial district of Fairfield, Docket No. 03-393187 (May 12, 2003) (Levin, J.), the plaintiff alleged that the defendant continually breached the contract by repeatedly overcharging the plaintiff for the services the defendant had agreed to perform. The plaintiff brought a CUTPA claim, which the defendant moved to strike. Id. The court held that “our Supreme Court has stated that whether an act violates CUTPA depends on whether it satisfies the cigarette rule. ... It does not depend on whether the act may be characterized as a ‘simple breach of contract’. . . . Moreover . . . the plaintiff in . . . the present action alleges multiple breaches. Cumulatively, these breaches may be characterized as an aggravating circumstance.” Id.; see also Ameripride Services, Inc. v. U.S. Food Services, Inc., Superior Court, judicial district of Hartford, Docket No. CV-04-0835453 (June 7, 2006) (Tanzer, J.) (“[m]ultiple breaches of contract may also raise a breach of contract claim to the level of a CUTPA violation”).
In рaragraphs ten through fifteen of the revised complaint, the plaintiffs allege that the defendants breached the noncompetition agreement on sevеral occasions despite the plaintiffs’ repeated complaints. These multiple breaches, if proven, could satisfy the third prong of the cigarette rule, causing substantial injury to a competing business. Accordingly, the plaintiffs have sufficiently alleged a CUTPA violation through multiple breaches of the noncompetition agrеement.
The plaintiffs further contend that the defendants misrepresented their intentions as evidenced by their conduct. A misrepresentation can constitute an aggrаvating circumstance that would allow a simple breach of contract claim to be treated as a CUTPA violation; it would, in effect, be a deceptive аct. LESMSD, LLC v. R & J Properties, LLC, Superior Court, judicial dis trict of Waterbury, Docket No. CV-03-0177537 (November 22, 2005) (Gallagher, J.).
In the revised complaint, the plaintiffs allege that the defendants were selling sausagеs to a competitor in New London. The plaintiffs allege further that after they complained, the defendants agreed not to
II
CONCLUSION
The defendants’ motion to strike the third count of the plaintiffs’ revised complaint is hereby denied.