The district court's and defendants' reliance on Miracle Mile Associates v. City of Rochester, 617 F.2d 18 (2d Cir. 1980), and Wilmorite, Inc. v. Eagan Real Estate, Inc., 454 F.Supp. 1124 (N.D.N.Y.1977), aff'd. without opinion, 578 F.2d 1372 (2d Cir.), cert. denied, 439 U.S. 983, 99 S.Ct. 573, 58 L.Ed.2d 655 (1978), is misplaced. These cases are plainly distinguishable.
In Miracle Mile, the City of Rochester opposed plaintiffs' plans to build a shopping center through proceedings instituted before various state and federal environmental agencies. Miracle Mile subsequently brought an action under the Sherman Act, charging that the City opposed the shopping center in bad faith and with the intent to suppress competition with commercial property owned by the City. In affirming the grant of summary judgment for the municipal defendant, the court found that the City had a "legitimate municipal interest in preserving the City from the adverse economic impact created by the suburban project," as distinguished from the "sham exception" cases "where the only motivation for resort to adjudicatory processes was the restraint or elimination of competition." 617 F.2d at 21. The State Environmental Quality Review Act, which the City invoked in the state proceedings, was intended to protect the interest of municipalities such as Rochester in preventing overdevelopment. That the City had a reasonable basis for invoking the Act was both conceded by the plaintiffs and evidenced by the City's success in the State Wetlands Proceedings. Having reasonably invoked administrative and judicial proceedings for the purpose for which they were intended, the City incurred no liability. Here, by contrast, the defendants had no reasonable basis for their appeals from the decision of the HPZC, which appeals were taken solely for anti-competitive purposes.
In Wilmorite, the defendants were competing shopping center owners who instituted and sponsored litigation to prevent plaintiffs from developing a new shopping center. The resemblance to this case ends there, as the Wilmorite defendants "prevailed in the trial court, and were partially successful in the Appellate Division." 454 F.Supp. at 1135. This led Judge Port to state: "these are hardly the threads from which a 'pattern of baseless repetitive claims,' can be woven," Id. (citation omitted). Unlike the Wilmorite defendants, the Plaza defendants lost every appeal they took and all but one of the appeals that they sponsored. Furthermore, they engaged in misrepresentations to the court in the conduct of their appeals, as evidenced by the "purely bull" inscription on the letter to the Chief Judge of the Connecticut Supreme Court, and they failed to communicate a settlement offer to the Neals. No such improper activities occurred in Wilmorite.
Nor can the Plaza defendants derive any comfort from the Supreme Court's opinions in N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), or In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978). Their lawyers' in person solicitation of the landowners to join in litigation against the shopping mall and their secret financing and control of that litigation were not "modes of expression and association protected by the First and Fourteenth Amendments ...," Button, supra, 371 U.S. at 428-29, 83 S.Ct. at 335, for two reasons. First, Primus and Button are concerned only with the solicitation and financing of good faith claims. Here, the Plaza defendants are alleged to have solicited numerous baseless suits by the landowners. Second, the First Amendment does not shield such improper practices in the solicitation and representation of clients as occurred here. [FN10] See Primus, supra, 436 U.S. at 426 and 439, 98 S.Ct. at 1901 and 1908; cf. Ohralik v. Ohio State Bar Association, 436 U.S. 447, 449, 98 S.Ct. 1912, 1915, 56 L.Ed.2d 444 (1978) (holding a state "constitutionally may discipline a lawyer for soliciting clients in person ... under circumstances likely to pose dangers that the state has a right to prevent").
VAN GRAAFEILAND, dissenting:
Because, like Judge Eginton, I am unable to distinguish the instant case from this court's prior holdings in Wilmorite, Inc. v. Eagan Real Estate, Inc., 454 F.Supp. 1124 (N.D.N.Y.1977), aff'd mem., 578 F.2d 1372 (2d Cir.), cert. denied, 439 U.S. 983, 99 S.Ct. 573, 58 L.Ed.2d 655 (1978), and Miracle Mile Associates v. City of Rochester, 617 F.2d 18 (2d Cir. 1980), I respectfully dissent.
The First Amendment guarantees access to our nation's courts regardless of the plaintiff's anti-competitive motivation. Unless the plaintiff's conduct corrupts the judicial processes, California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 513, 92 S.Ct. 609, 613, 30 L.Ed.2d 642 (1972), or deprives a competitor of meaningful access to adjudicatory tribunals, id. at 512, 92 S.Ct. at 612, he is not in violation of the Sherman Act. Wilmorite, Inc. v. Eagan Real Estate, Inc., supra, 454 F.Supp. at 1131.
Sham litigation may perhaps corrupt the judicial process. However, a case in which the Connecticut Supreme Court has seen fit to grant certification can hardly be described as "sham". See State v. Cullum, 149 Conn. 728, 176 A.2d 587 (1961); Conn.Practice Book s 761C. This would surely seem to be true where, as in the instant case, a twelve page opinion, Schwartz v. Town of Hamden, 168 Conn. 8, 357 A.2d 488 (1975), and a seven page opinion, Schwartz v. Town of Hamden, 168 Conn. 20, 357 A.2d 496 (1975), follow the granting of review.
I do not believe that the alleged improper conduct of defendants' attorneys rose, or perhaps "fell" is a better word, to the level of such "illegal and reprehensible" practices as perjury, fraud, and bribery, so as to corrupt and make illegal the entire judicial process in which defendants were engaged. See California Motor Transport Co. v. Trucking Unlimited, supra, 404 U.S. at 512-13, 92 S.Ct. at 612-13. So far as appears, the administrative and judicial proceedings in Connecticut were fairly conducted. Plaintiffs had their day in court and prevailed. Plaintiffs' real complaint, one that is voiced all too often today, is that they had too many days in court. Relief from inordinate delay should have been sought in the Connecticut tribunals to which plaintiffs had ready access. While their plight merits sympathy, it does not merit invocation of the Sherman Act.
I would affirm.