PARRO, J.
Defendants, Argosy Gaming Company, Argosy of Louisiana, Inc., Catfish Queen Partnership in Commendam, and Jazz Enterprises, Inc., appeal the final judgment entered in conformity with a jury verdict awarding damages to Capitol House Preservation Company, L.L.C. (Capitol House) arising from the defendants' alleged misrepresentations and omissions made in pursuit of a riverboat gaming license. Capitol House has answered the appeal, asserting that the trial court erred in denying recovery to it for lost profits and in striking the damages the jury awarded to it for the cost of money it had borrowed in furtherance of its proposed riverboat gaming project. For the following reasons, we reverse.
In 1993, the Riverboat Gaming Enforcement Division of the Gaming Enforcement
The Division hired Perryman Consultants, Inc. to rank the applicants according to the economic impact that each would have on the local and state economies if awarded a license. It ranked the Jazz/Argosy project first by a considerable margin, the LCC project second, and the Lady Luck project third. On July 18, 1994, after conducting hearings on July 7, 8, and 11, 1994, in which each applicant was afforded an opportunity to make a separate presentation, the Division awarded the licenses to Jazz/Argosy and LCC and denied Lady Luck's application for a license.
On July 10, 1995, Capitol House, as the successor-in-interest to Lady Luck, filed the instant suit in the 19th Judicial District Court against Perryman Consultants, Inc., and its president, Dr. Ray Perryman (sometimes collectively referred to as "Perryman"), alleging that Perryman committed numerous errors and omissions in ranking the applicants. On November 26, 1997, Capitol House amended its petition to name Jazz, Catfish Queen, Argosy Gaming Company, Argosy of Louisiana, Inc., and shareholders and principals of Jazz, including Steve Urie, Lodging Systems, Inc., Ronald Johnson, Mark Bradley, and Paula Bradley, as defendants. Capitol House asserted claims of negligence and violations of the Louisiana Unfair Trade Practices and Consumer Protection Law (UTPL), LSA-R.S. 51:1401, et seq. See LSA-R.S. 51:1409(A). Specifically, Capitol House alleged that Jazz and its principals made false and misleading statements to persons involved in the selection process regarding, among other things, the true ownership of Jazz and Jazz's ability to finance and complete various landside improvements it promised.
Capitol House averred that Jazz's material misrepresentations to the Division violated the Riverboat Gaming Act and disqualified Jazz from consideration for a license. Moreover, Capitol House asserted that the City of Baton Rouge's support for the Jazz project, the issuance of a certificate by the Louisiana Riverboat Gaming Commission (the Commission), the Perryman rankings, and the Division's decision to issue a license were all based on
This case has an extensive procedural history and this court has written four prior opinions on appeal in this matter. In Capitol House Preservation Co., L.L.C. v. Perryman Consultants, Inc., 98-1514 (La.App. 1st Cir.12/10/98), 725 So.2d 523, writ denied, 99-0548 (La.4/9/99), 740 So.2d 637 (Capitol House I), this court upheld the trial court's denial of a prescription exception as to the individual defendants, finding that the Riverboat Gaming Act imposed a continuing duty to report violations of the Act, and that each day the defendants, as licensees or applicants, failed to disclose the alleged misrepresentations, a new violation of the statutory duty arose and could constitute an unfair trade practice should the court so find. In Capitol House Preservation Co., L.L.C. v. Perryman Consultants, Inc., 98-2216 (La. App. 1st Cir.11/5/99), 745 So.2d 1194, writ denied, 99-3446 (La.2/11/00), 754 So.2d 937 (Capitol House II), this court reversed the granting of prescription exceptions, applying the continuing tort principle to find that the claims were not time barred against the remaining defendants.
In Capitol House Preservation Co., L.L.C. v. Perryman Consultants, Inc., 01-2524 (La.App. 1st Cir.12/31/02), 836 So.2d 680, writs denied, 03-0323 and 0324 (La.4/21/03), 841 So.2d 794 and 795 (Capitol House III), this court upheld the trial court's denial of defendants' exceptions raising the objections of lack of subject matter jurisdiction and no cause of action. With regard to the exception raising the objection of lack of subject matter jurisdiction, the defendants had asserted that the trial court could not award damages to Capitol House, because it lacked original jurisdiction and authority to review the alleged misconduct and to determine whether applicants should have been awarded a riverboat license. This court disagreed, reasoning that the allegations in Capitol House's petition asserted a civil claim for monetary damages arising from the alleged misconduct of defendants. Id. at 684. As no gaming agency had been granted the authority to award money damages, this court found that the case fell within the adjudicative sphere of the trial court. Id. at 685. With regard to the exception raising the objection of no cause of action, the defendants had argued that Capitol House was precluded from contesting the Division's decision, because Capitol House had failed to exhaust administrative remedies provided for in the gaming law with respect to the denial of its license application. This court noted that the exhaustion doctrine applies only when exclusive jurisdiction exists in an administrative agency, and concluded that the doctrine did not apply to Capitol House's claims for monetary damages. Id.
Following this court's ruling in Capitol House III, the defendants filed exceptions raising the objection of res judicata, contending that Capitol House's claims were barred because all issues raised by Capitol House had been previously litigated and determined by the Division during the licensing process. Because Capitol House's predecessor, Lady Luck, had failed to appeal the Division's rulings, the defendants submitted that those rulings were final and definitive and could not be collaterally attacked in court. In support of their assertion that all of Capitol House's claims of misconduct were raised and addressed by
On writs, the Louisiana Supreme Court reversed this court's ruling, adopting the "reasons assigned by the dissenting judge." Capitol House Preservation Co., L.L.C. v. Perryman Consultants, Inc., 05-0090, 05-0091 (La.3/24/05), 897 So.2d 584. The dissent reasoned:
Capitol House IV, 889 So.2d at 311-12.
This matter then proceeded toward trial. During the pre-trial process, the trial court granted the defendants' motion for partial summary judgment, finding that the Riverboat Gaming Act precluded Capitol House from recovering any damages based upon the value of the license or the lost profits that would have been earned had the license been awarded. The trial court limited Capitol House's damages to lost investments and expenses incurred in pursuit of the license. Before trial, Dr. Ray Perryman was dismissed through an exception raising the objection of res judicata. Later, defendants Steve Urie, Lodging Systems, Inc., Ronald Johnson, Mark Bradley, and Paula Bradley were voluntarily dismissed.
Capitol House proceeded to trial against the remaining defendants, Argosy Gaming Company, Argosy of Louisiana, Inc., Catfish Queen, and Jazz. The case was tried for eleven days to a jury, which rendered a verdict for Capitol House against all defendants in the amount of $3,823,786, consisting of $1,356,953 in costs incurred by Capitol House during the time period leading up to the denial of the license, as well as $2,671,000 of interest accrued from 1993 to the present on loans to Capitol House made by its member, Charles Lambert, Sr., and his brother, Laurence Lambert.
Thereafter, the defendants filed a motion for judgment notwithstanding the verdict, asserting that the $2,671,000 interest award was not supported by the evidence as it was not documented by any note or loan agreement to Capitol House by either Charles Lambert, Sr. or Laurence Lambert. The trial court granted post-trial relief to the defendants by striking the conventional interest award. The final judgment signed on September 27, 2007, awarded Capitol House $1,356,953, together with judicial interest from the date of judicial demand, plus costs and attorney fees. Defendants timely sought and were granted a suspensive appeal. Capitol House has timely filed an answer to the defendants' appeal.
On May 27, 2008, Capitol House notified this court that Argosy of Louisiana, Inc., Catfish Queen, and Jazz had commenced voluntary Chapter 11 bankruptcy proceedings in the United States Bankruptcy Court for the District of Delaware on May 5, 2008. Capitol House then filed a motion to sever and stay the appeal as to the bankrupt defendants. We note that 11 U.S.C.A. § 362(a)(1) extends the automatic stay provision only to the debtors filing bankruptcy proceedings and not to non-bankrupt co-debtors. See Martin v. David, 95-1411 (La.App. 3rd Cir.12/7/95), 666 So.2d 1136, 1137. Therefore, we recognize the automatic stay pursuant to 11 U.S.C.A. § 362(a)(1) as it applies to Argosy of Louisiana, Inc., Catfish Queen, and Jazz, and we are prohibited from deciding the issues presented on appeal as it relates to those parties until such time as the automatic stay has been lifted; however, no stay is in effect as to Argosy Gaming Company.
In this appeal, Argosy has presented the following assignments of error:
Capitol House has answered the appeal and has presented the following assignments of error:
In its first assignment of error, Argosy asserts that the defendants' conduct is immune from attack under the UTPL pursuant to the Parker and Noerr-Pennington immunity doctrines applicable in federal antitrust cases. The UTPL is a form of state antitrust statute patterned after the Federal Trade Commission Act, 15 U.S.C.A. § 41, et seq. See First Financial Bank, FSB v. Butler, 492 So.2d 503, 505 (La.App. 5th Cir.1986). The UTPL prohibits the same types of deceptive and anticompetitive conduct prohibited by the Federal Trade Commission Act. See LSA-R.S. 51:1405(A) and 15 U.S.C.A. § 45(a)(1). However, the UTPL permits "[a]ny conduct which complies with section 5(a)(1) of the Federal Trade Commission Act [15 U.S.C.A. § 45(a)(1)]," as well as "any rule or regulation promulgated thereunder and any finally adjudicated court decision interpreting the provisions of said Act, rules and regulations." LSA-R.S. 51:1406(4). Therefore, in interpreting Louisiana's statute, a court must consider how the Federal Trade Commission and the federal courts have applied the Federal Trade Commission Act to various types of conduct.
Parker, 317 U.S. at 350-51, 63 S.Ct. at 313. Argosy is clearly afforded no protection under the Parker doctrine, insofar as it protects state action in promulgating and enforcing anti-competitive legislation or rules.
Whereas the Parker doctrine applies to protect state action in governing anticompetitive regulation, the Noerr-Pennington doctrine applies to protect private persons' efforts to procure governmental action. The Noerr-Pennington doctrine sweeps broadly and is implicated by both state and federal antitrust claims that allege anticompetitive activity in the form of lobbying or advocacy before any branch of either federal or state government. Kottle v. Northwest Kidney Centers, 146 F.3d 1056, 1059 (9th Cir.1998), cert. denied, 525 U.S. 1140, 119 S.Ct. 1031, 143 L.Ed.2d 40 (1999). The Noerr-Pennington doctrine applies to antitrust actions premised on state law. Video Intern. Production, Inc. v. Warner-Amex Cable Communications, Inc., 858 F.2d 1075, 1084 (5th Cir. 1988), cert. denied sub nom., City of Dallas v. Video Intern. Production, Inc., 490 U.S. 1047, 109 S.Ct. 1955, 104 L.Ed.2d 424, and cert. denied, 491 U.S. 906, 109 S.Ct. 3189, 105 L.Ed.2d 697 (1989). Recently, the Louisiana Supreme Court has recognized that the doctrine can apply to actions brought under the UTPL. Astoria Entertainment, Inc. v. DeBartolo, 08-1690 (La.5/22/09), 12 So.3d 956.
In Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 136, 81 S.Ct. 523, 529, 5 L.Ed.2d 464 (1961), the United States Supreme Court held that the Sherman Act does not prohibit efforts to influence the passage and enforcement of laws, even where railroads disparaged trucking companies to customers and the general public, because such disparagement was "incidental" to petitioning the government to adopt laws allegedly destructive to the trucking business. Thereafter, the Supreme Court indicated that "Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent [or] purpose." United Mine Workers of America v. Pennington, 381 U.S. 657, 670, 85 S.Ct. 1585, 1593, 14 L.Ed.2d 626 (1965). Accordingly, efforts to influence public officials will not subject individuals to liability, even when the sole purpose of the activity is to drive competitors out of business. Id.
In Noerr, the court also recognized what has become known as the
The United States Supreme Court has also indicated that there is the possibility of a misrepresentation exception to the Noerr-Pennington immunity doctrine when the misrepresentations are made in less political arenas. See California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 513, 92 S.Ct. 609, 613, 30 L.Ed.2d 642 (1972) ("[misrepresentations, condoned in the political arena, are not immunized when used in the adjudicatory process"), and Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 500, 108 S.Ct. 1931, 1937, 100 L.Ed.2d 497 (1988) ("[b]ut in less political arenas, unethical and deceptive practices can constitute abuses of administrative or judicial processes that may result in antitrust violations"). Moreover, in Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 174, 86 S.Ct. 347, 349, 15 L.Ed.2d 247 (1965), the court concluded, without addressing or applying the Noerr-Pennington doctrine, that "the enforcement of a patent procured by fraud on the Patent Office may be violative of § 2 of the Sherman Act provided the other elements necessary to a § 2 case are present."
The federal Fifth Circuit has also recognized that material misrepresentations made to government decision makers outside of the political arena are not protected by the Noerr-Pennington doctrine. In Woods Exploration & Producing Co. v. Aluminum Co. of America, 438 F.2d 1286 (5th Cir.1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972), the court held that the Noerr-Pennington doctrine did not protect the defendant producers' filing of false production forecasts with a state regulatory commission. The forecasts were submitted by the producers themselves and the commission relied on the forecasts to set production limits. The Fifth Circuit noted that there was no opportunity for meaningful supervision or verification of the forecasts and they were adopted by the commission at "face value." Id. at 1295. The Fifth Circuit stated that the Noerr-Pennington doctrine seeks to protect attempts to influence policies and held that "the abuse of the administrative process here alleged does not justify antitrust immunity." Id. at 1298. The court drew a distinction between seeking to influence government policy versus seeking to undermine the policy altogether, noting as follows:
Id. at 1297.
Argosy contends that more recent jurisprudence from the United States Supreme Court has significantly narrowed, if not closed altogether, any exception to Noerr-Pennington for fraudulent or unlawful conduct, including the exception recognized by the Fifth Circuit in Woods Exploration. In Omni, the Supreme Court indicated that it recognized the sham exception to Noerr-Pennington, but it would not recognize a conspiracy exception to the doctrine. The Supreme Court concluded that "with the possible market participant exception, any action that qualifies as state action is `ipso facto ... exempt from the operation of the antitrust laws.'" Omni, 499 U.S. at 379, 111 S.Ct. at 1353. Argosy contends that Omni stands for the proposition that the Supreme Court disfavored any across-the-board fraud exception. Argosy argues that so long as the sham exception is not applicable, it is immune from liability under the Noerr-Pennington doctrine.
Although Omni reflects the United States Supreme Court's reluctance to carve out any additional exceptions to Noerr-Pennington immunity, we disagree that Omni necessarily limited the Fifth Circuit's holding in Woods Exploration insofar as Omni involved a party's efforts to influence the passage of zoning ordinances and did not involve any misrepresentations made to influence the administration of an existing rule or ordinance. Additionally, in Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993) (PREI), which was decided after Omni, the Supreme Court, after providing a two-part test designed for "sham" litigation, explicitly declined to decide whether immunity from liability would include situations where the litigant had perpetrated "fraud" or had made "other misrepresentations." PREI, 508 U.S. at 61 n. 6, 113 S.Ct. at 1929 n. 6. Although given the opportunity to do so, the Supreme Court in PREI did not foreclose a misrepresentation or fraud exception to the Noerr-Pennington immunity doctrine when the misrepresentation or fraud occurred outside of the political arena.
Recently, in Astoria, 08-1690 at p. 963, the Louisiana Supreme Court, noting that the United States Supreme Court "has chosen to cast a wide net of protection afforded by Noerr-Pennington" declined to extend the immunity to "protect illegal activity, especially in claims that arise outside of the scope of antitrust laws." Therein, Astoria Entertainment, Inc. (Astoria), an applicant for a riverboat casino license, filed an action against two other applicants, Edward J. DeBartolo, Jr. and
Capitol House contends that Astoria is directly on point and should preclude the defendants from claiming Noerr-Pennington immunity arising from their alleged criminal acts. Capitol House notes that the trial court, in its jury instructions, identified the elements of the "crime of false statements relating to gaming" as set forth in former LSA-R.S. 4:558.
In Astoria, the Louisiana Supreme Court indicated that it would not expand the Noerr-Pennington doctrine to protect illegal activity,
The federal Tenth Circuit in Cardtoons, L.C. v. Major League Baseball Players Ass'n, 208 F.3d 885, 890 (10th Cir.2000), cert. denied, 531 U.S. 873, 121 S.Ct. 175, 148 L.Ed.2d 120 (2000), discussed the difference between immunity afforded under the Noerr-Pennington doctrine arising in the antitrust realm as
Misrepresentations, condoned in the political arena, are not necessarily immunized when used in the adjudicatory process. California Motor Transport Co., 404 U.S. at 513, 92 S.Ct. at 613. The alleged material misrepresentations in the underlying case were not designed to influence policy but rather to purportedly undermine the means of effectuating that policy. Such alleged abuse of the administrative process does not justify antitrust immunity if defendants' alleged misrepresentations subverted the entire decision-making process to the extent that the Division was effectively no longer the real decision maker. See Woods Exploration, 438 F.2d at 1295; see also Kottle, 146 F.3d at 1063 (if misrepresentations made by defendant were of such a magnitude that the "entire [administrative] proceeding was deprived of its legitimacy," then the sham exception to Noerr-Pennington would apply), and Cheminor Drugs, Ltd. v. Ethyl Corp., 168 F.3d 119, 123 (3rd Cir. 1999), cert. denied, 528 U.S. 871, 120 S.Ct. 173, 145 L.Ed.2d 146 (1999) (material misrepresentations that "infect the core" of the defendant's claim and the government's resulting actions are not entitled to Noerr-Pennington immunity). On the other hand, in a case involving the "conceded presence . . . of disinterested decision makers, an independent investigation, an open process, and extensive opportunities for error correction," the federal Third Circuit has affirmed, after consideration of the Noerr-Pennington doctrine, the dismissal of a lawsuit even though misrepresentations were made when an agency was acting judicially. Armstrong Surgical Ctr., Inc. v. Armstrong County Memorial Hosp., 185 F.3d 154, 164 (3rd Cir.1999), cert. denied, 530 U.S. 1261, 120 S.Ct. 2716, 147 L.Ed.2d 982 (2000).
Capitol House submits that the evidence it presented at trial shows that Argosy would have been denied the license had the defendants not abused the administrative process and had the misrepresentations been known to the Division prior to the award of the license. In particular, Capitol House avers that it showed that the defendants: 1) concealed that Urie had a substantial ownership interest in Jazz, 2) failed to disclose contingent liabilities or agreements worth $3,2000,000, and 3) misrepresented Jazz's ability to finance and build landside developments and, when Argosy acquired all of the shares of Jazz, performed a "bait and switch" scheme to defraud.
The Riverboat Gaming Act provided that the Division "shall not award a license or permit to any person" who is disqualified on the basis of a failure "to provide information and documentation to reveal any fact material to qualification, or the supplying of information which is untrue or misleading as to a material fact pertaining to the qualification criteria."
Also, Colonel Keith Norris, Deputy Superintendent for the Louisiana State Police and an adviser to the Division, testified that if anyone did anything to conceal from us, "we would have hit them on the head with a hammer." Colonel Norris testified that if a party lied on its application in an attempt to deceive the Division or that it purposefully concealed ownership, then "it was over with for you." Similarly, Commander Terry Landry, who was involved with the licensing process during the presentation stage, testified that "[i]f the intent of the applicant was not to disclose all the partners, it very well could have been a one strike and you're out, or if it was an omission that wasn't intentional, it could have been an administrative fine." Based upon the foregoing testimony, Capitol House concludes that the defendants' failure to list Urie as an owner abused the administrative process to the extent that the defendants would not have been awarded a license had the Division known of Urie's ownership interest in Jazz prior to the licensing hearing.
However, we note that Capitol House raised the specific issue regarding Urie's ownership interest in Jazz during the course of the licensing proceedings. The Division investigated this specific allegation and was apparently satisfied with its findings insofar as it nonetheless decided to issue a gaming license to Jazz/Argosy. Moreover, although Urie was not listed as an "Owner" in the Application, the evidence presented at trial indicated that the Division knew that Urie effectively controlled the ownership of Jazz insofar as ten months prior to the licensing hearing, the Division was informed that Urie held the option to buy 75 percent of Jazz for a nominal price. The Division was also aware that Urie was a principal in Jazz during the entirety of the licensing process insofar as he was listed as a "Director" in the Application. One of the main purposes for listing all principal officers, directors, partners, and stockholders was to allow the Division to perform background checks to make suitability determinations. The Division conducted the requisite background check on Urie as well as all other Jazz shareholders and determined that they were all suitable. The Division, after the license was granted, approved Urie's exercise of the option. Because the Division knew that Urie was a
Capitol House also contends that while the defendants indicated that they had no contingent liabilities worth at least $50,000, the evidence adduced at trial showed that the defendants failed to disclose contingent liabilities or agreements worth more than $3,200,000. First, Capitol House contends that Jazz concealed that it owed $2,200,000 to Peter Wilday, the architect for the Jazz project.
At trial, Capitol House also showed that Jazz, Urie, Johnson, and Bradley executed a settlement agreement with Randy Hayden, Jazz's founder, in March 1993, which obliged Jazz to pay $50,000 to Hayden upon execution and to pay Hayden an additional $350,000 contingent upon a gaming license being issued to Jazz. Capitol House also showed that Jazz and Baton Rouge Gaming, Inc. (BRG) entered into an agreement on July 1, 1993, that provided if Jazz obtained a license and did not utilize BRG as its gaming operator, then Jazz would repay a $400,000 loan as well as an additional $250,000 to BRG. While the agreement between Jazz and Hayden should have been disclosed in the Application, we note that the settlement between Jazz and BRG was funded in the summer of 1993, or prior to the completion of the defendants' financial statement, so the settlement was arguably not required to be reported. Nevertheless, even assuming that both settlements should have been disclosed, Capitol House failed to show that their exclusion was intentional. Additionally, the amount of the financial non-disclosures paled in comparison to the size of the entire project. Lieutenant Marcal Poullard, a member of the Division who was responsible for conducting suitability investigations of applicants and made the final decision as to who received the licenses, testified that the failure to list all contracts of $50,000 or more could affect the suitability of the applicant, but that he would not determine a proper course of action on his own. Accordingly, given that the Division was vested with discretion to decide what level of undisclosed debt the Division considered material for its licensing decision and because the debt paled in comparison to the totality of the proposed project, we cannot conclude that the defendants' failure to list these contracts effectively removed the decision-making authority from the Division.
Capitol House also contends that the defendants misrepresented their ability to fund the proposed landside developments to Catfish Town. During the licensing process, the Division instructed the three competing license applicants to provide
Defendants, in a letter dated May 20, 1994, submitted financial information and projections of their proposed projects to Perryman and the Division. Defendants indicated that they would spend a total of $144.4 million, with Jazz spending approximately $97.2 million on the following landside developments: $44.2 million to acquire and renovate Catfish Town by July 1995; $35 million to build a convention hotel with 400+ rooms by October 1995; and $18 million to build a special event/sports center by July 1995. While Jazz committed to build these landside improvements in Phase I, Jazz could only borrow $18 million and could not obtain the financing necessary for completion of Phase I of the project without Argosy's agreement to modify a letter of intent between it and Jazz. Urie testified that Argosy refused to modify the letter of intent "a couple of months" before the licensing hearing. At that time, Jazz was running out of money and the parties unsuccessfully attempted to mediate the dispute at the end of June. At the time of the licensing hearing, Jazz could not obtain financing to complete the renovation of Catfish Town, to build the $35 million hotel, or to build the special event/sports center. Defendants did not disclose prior to or at the hearing that Argosy had refused to modify the letter of intent and that Jazz could not borrow any more funds to complete the project.
Four months after the defendants received the license, construction ceased on Catfish Town due to Jazz's inability to pay the contractor. On December 2, 1994, the stockholders of Jazz entered into an agreement to sell 100 percent of their stock to Argosy for $27,000,000. Urie testified that Argosy misrepresented to Jazz that it would help Jazz to obtain the financing necessary to build the developments promised to the Division, thereby preventing Jazz from completing the project as promised. After Argosy took over the project, it significantly scaled back the renovation of Catfish Town and other landside developments that the defendants had promised to build, including the hotel and special event/sports center. Urie testified that Argosy built just "a fraction of what was initially promised." Capitol House concludes that had the Division known that the defendants could not secure the funding necessary to build the promised facilities, the defendants would not have been awarded a license.
We note that issues concerning Jazz's ability to secure financing to build the proposed landside facilities were also raised during the course of the licensing process. Although the Division was unaware that Jazz and Argosy had disagreed over financing and the letter of intent months before the licensing hearing, the Division was aware of the allegations made against Jazz with regard to its ability to obtain financing. Cognizant of those allegations and as part of the application process, the Division reviewed the financial conditions of each of the applicants, including both Jazz and Argosy, as well as the economic impact of each proposal. While the internal strife between the two principals eventually led Argosy to purchase Jazz's interest following the award of the license, the Division approved the sale of Jazz to Argosy, and Argosy eventually completed a scaled down Catfish Town project.
We conclude that the defendants' misrepresentations and/or omissions, when considered independently or collectively, did not subvert the Division's decision-making process to the extent that the Division could not effectively evaluate the three proposed projects and make an informed decision as to which of the applicants should receive the two licenses. Moreover, our conclusion is further supported by the fact that the Division, an independent body of disinterested decision-makers, did not take all representations at face value and it had the opportunity to review and investigate the information submitted by the applicants.
Capitol House also asserts that in addition to its state law antitrust claims asserted under the UTPL, it has also raised state tort law claims, which would not be subject to the Noerr-Pennington immunity doctrine. We note, however, that Capitol House's tort law claims based on allegations of intentionally false or misleading statements by the defendants to the Division are subsumed in the alleged violations of the UTPL.
To the extent that the tort claims could be considered outside of the antitrust context, we find that Capitol House has not met its burden of showing that the defendants' acts rose to the level of criminality to satisfy the standard set forth by the court in Astoria. In the instant case, many of the alleged fraudulent and misleading statements were specifically addressed to the Division during the course of the licensing process, and the Division considered these allegations prior to making its licensing decision, as discussed above. The Division also had the authority to pursue and seek prosecution of the defendants if it believed criminal violations occurred during the course of the licensing process, but there is no evidence of record
Accordingly, because the defendants' misrepresentations did not subvert the entire decision-making process, we conclude that the Noerr-Pennington immunity doctrine affords Argosy immunity from liability under the UTPL. Moreover, we do not find that an independent cause of action exists under any other theory of recovery. Because we find the Noerr-Pennington immunity doctrine applicable in this case, we pretermit discussion of the remaining assignments of error. Therefore, the judgment is reversed. Each party is to bear its own costs associated with this appeal.
PETTIGREW, J., concurs and assigns reasons.
PETTIGREW, J., concurring.
I have concerns about reversing a judgment reflecting a verdict of the jury. I am further of the opinion that the Noerr-Pennington doctrine should not be interpreted broadly and should only apply in the context of Sherman antitrust litigation. However, I do note the recent case cited by the majority of Astoria Entm't, Inc. v. Debartolo, 08-1690 (La.5/22/09), 12 So.3d 956, decided by the Louisiana Supreme Court; and I am constrained to follow same.
For these reasons and, considering the unique facts of this case, I will concur with the majority.