Field v. The National Collegiate Athletic Association. ( 2018 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
20-NOV-2018
10:04 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---o0o---
DANE S. FIELD, TRUSTEE OF THE BANKRUPTCY ESTATE OF ALOHA SPORTS
INC., Petitioner/Plaintiff-Appellant,
vs.
THE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, AN UNINCORPORATED
ASSOCIATION, Respondent/Defendant-Appellee.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CIV NO. 06-1-1832)
NOVEMBER 20, 2018
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
This case arises out of the uncompleted sale of one
business to another. The plaintiff alleges that the defendant
engaged in an unfair method of competition to terminate the
transaction in violation of Hawaii antitrust law. At issue in
this case is what a plaintiff must demonstrate to withstand
summary judgment on a claim for an unfair method of competition
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under Hawaii Revised Statutes (HRS) Chapter 480. In particular,
we address the plaintiff’s requirement of showing that the
defendant’s conduct would negatively affect competition or harm
fair competition. Consistent with our case law, we conclude
that to raise an issue of material fact as to the nature of
competition requirement of an unfair method of competition claim
following the close of discovery, a plaintiff must demonstrate
that the defendant’s alleged anticompetitive conduct could
negatively affect competition but need not prove that the
defendant in fact harmed competition. Further, we reaffirm that
in order to withstand summary judgment, a plaintiff may
generally describe the relevant market without resort to expert
testimony and the plaintiff need not be a competitor of or in
competition with the defendant.
I. BACKGROUND AND PROCEDURAL HISTORY
A. Factual Background
The National Collegiate Athletic Association (NCAA) is
a non-profit, unincorporated voluntary association of
approximately 1,200 colleges and universities, athletic
conferences, and sports organizations. The NCAA regulates and
controls Division I-A postseason college football bowl games in
which qualifying NCAA Division I-A members may participate.
Independent businesses (bowl sponsoring agencies) organize and
2
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promote the bowls subject to annual recertification1 by the NCAA
Football Certification Subcommittee (the Subcommittee). The
Subcommittee is composed of representatives from NCAA member
schools, as well as NCAA staff that serve as non-voting
liaisons.
Aloha Sports, Inc.2 (Aloha Sports) is a former bowl
sponsoring agency that produced Division I-A NCAA postseason
college football bowl games. Aloha Sports organized, produced,
and promoted the NCAA-certified Aloha Bowl in Honolulu from 1982
to 2000. In 1998, Aloha Sports established and received NCAA
certification of the Oahu Bowl and began to promote the two bowl
games together. For various reasons unrelated to this appeal,
Aloha Sports relocated both bowls to the continental United
States following the 2000 season. In the 2001 season, Aloha
Sports sought and received NCAA recertification of the Aloha
Bowl as the San Francisco Bowl and of the Oahu Bowl as the
1
The requirements for certification listed in the 2002-03 NCAA
Bowl Handbook include, inter alia, exceeding a minimum amount of ticket
sales, the implementation of a gross receipt sharing policy under which the
institutions participating in the bowl each receive a minimum payout of
$750,000, the performance of financial audits, the submission of a letter of
credit, and compliance with certification application dates, fees, and
procedures.
2
On December 27, 2017, the ICA issued an order granting Aloha
Sports, Inc.’s motion to substitute Dane S. Field, Trustee of the Bankruptcy
Estate of Aloha Sports, Inc., for Aloha Sports, Inc. as plaintiff-appellant.
3
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Seattle Bowl. The Seattle Bowl was also recertified by the NCAA
and presented by Aloha Sports during the 2002 season.
Several concerns arose with the management of the 2002
Seattle Bowl, including failures to timely submit a letter of
credit to the NCAA and to make outstanding payments to
participating teams and vendors. Subsequently, Aloha Sports
decided to sell its business. In February 2003, Aloha Sports
signed a letter of intent to transfer ownership and control of
its business to Pro Sports & Entertainment, Inc. (Pro Sports)
for the sum of $2,031,000. The sale was contingent upon NCAA
recertification of the Seattle Bowl for the 2003 season. On
April 1, 2003, Aloha Sports submitted an application for
recertification of the Seattle Bowl for the 2003 season to the
NCAA.
In April 2003, the Subcommittee met over four days to
make certification decisions for the 2003 season. At an unknown
date, an NCAA internal memorandum titled “Seattle Bowl Issues”
was created that provided information regarding the pending
Seattle Bowl recertification. The memorandum stated that
ongoing issues existed with the management of the Seattle Bowl,
including a submission of an inaccurate audit report, a failure
to pay the required certification fee, and a late letter of
credit. The memorandum also noted the intended sale of Aloha
4
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Sports to Pro Sports, including that the sale was contingent
upon recertification of the 2003 Seattle Bowl, and listed
outstanding debts from the 2002 Seattle Bowl as “Feller Debts”
in apparent reference to the president of Pro Sports, Paul
Feller. Finally, under a section titled “Penalties” it stated
“1) Withhold certification one year. 2) Impose financial
penalty - fine up to 50% of gross receipts.”
Paul Feller attended the Subcommittee certification
meeting as a potential purchaser of Aloha Sports, along with
James Haugh, president of Aloha Sports and executive director of
the Seattle Bowl. Terry Daw, owner of Aloha Sports, also
participated by phone during the portions of the meeting related
to the Seattle Bowl. In a discussion regarding the Seattle
Bowl’s recertification, Pro Sports presented the Subcommittee
with information regarding Pro Sports’ plan for addressing
outstanding issues from the 2002 Seattle Bowl, as well as the
company’s financial capacity and relevant experience with event
management and promotion. During that meeting, Dennis Poppe, an
NCAA staff liaison to the Subcommittee, expressed concerns about
Daw’s prior management of the Seattle Bowl and sought assurance
that Daw would not be involved after a transfer of Aloha Sports
to Pro Sports.
5
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In a second meeting, Poppe and members of the
Subcommittee informed Feller, Haugh, and Daw3 that the
Subcommittee had decided to decertify the Seattle Bowl. Haugh
was then asked to leave the room, and Feller was privately
informed by Poppe and the Subcommittee members that Pro Sports
could independently submit an application to certify the Seattle
Bowl for the 2004 season.
The Subcommittee’s decision to decertify the Seattle
Bowl was formally announced the following day.4 Following the
announcement, Aloha Sports requested that the NCAA instead place
the Seattle Bowl on one-year probation as it had done with two
other bowl games that had failed to submit timely letters of
credit. The NCAA rejected Aloha Sports’ request, and the
Seattle Bowl was decertified as announced.
At the time, the NCAA’s Postseason Handbook contained
conflicting provisions concerning the consequences of a
sponsoring agency’s nonfulfillment of certification
requirements. A new provision added in the 2002-03 Handbook
stated, “If a sponsoring agency fails to meet the certification
3
Daw again participated in the meeting by phone.
4
An NCAA press release regarding the Subcommittee’s decisions for
the 2003 season bowls provided: “The committee did not recertify the Seattle
Bowl, due to financial issues and failure to adhere to administrative
requirements.”
6
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requirements, it shall be placed on probation for one year. If
the sponsoring agency has not complied with the requirements by
the end of the probationary period, the bowl shall lose its
certification.”5 (Emphasis added.) The provision was also
included nearly verbatim in two locations on the 2003 bowl
recertification application form and in a November 18, 2002
memorandum sent to all executive directors of bowl games. The
Handbook also retained a provision from previous years, however,
which stated as follows:
If the management of a certified game fails to comply with
Bylaw 30.9, the requirement for an audited financial report
for the immediate past game, or the NCAA’s approved
policies and procedures, the subcommittee has the option to
withhold certification for the postseason bowl game for one
year or fine it a percentage of its gross receipts, not to
exceed 50 percent, from the contest involved in the
noncompliance, with the amount to be determined by it and
approved by the Division I Championships/Competition
Cabinet.
As a result of the NCAA’s decertification of the
Seattle Bowl, the sale of Aloha Sports to Pro Sports was not
completed and the 2003 Seattle Bowl was not held. On October
20, 2005, Aloha Sports filed a complaint and demand for jury
trial against the NCAA in the Circuit Court of the First Circuit
(circuit court).
5
In the version of the Handbook released the following year, the
provision was revised to state, “If a sponsoring agency fails to meet the
certification requirements, it may either be put on probation for one year or
be decertified for the next bowl season.” (Emphasis added)
7
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B. 2005-2013 Court Proceedings
In its second amended complaint, Aloha Sports alleged
four causes of action, including multiple unfair method of
competition violations under HRS § 480-2 (1993 & Supp. 2002),6
tortious interference with prospective economic advantage, and
two breach of contract claims.7 Aloha Sports contended that the
NCAA violated HRS § 480-2’s prohibition on unfair methods of
competition by, inter alia, “refusing to permit a transfer of
ownership of Plaintiff’s NCAA Certified Postseason Football Bowl
Games without good cause” (UMOC claim).8
6
HRS § 480-2 (2008) provides in relevant part as follows:
(a) Unfair methods of competition and unfair or deceptive
acts or practices in the conduct of any trade or commerce
are unlawful.
. . .
(e) Any person may bring an action based on unfair methods
of competition declared unlawful by this section.
7
The Honorable Karen S.S. Ahn presided.
8
The other grounds alleged in the second amended complaint to be
unfair methods of competition in violation of HRS § 480-2 were as follows:
(1) requiring Aloha Sports to pay $75,000 or 75% of gross bowl revenues in
equal proportion to participating teams; (2) arbitrarily penalizing
sponsoring agencies for not meeting the payout requirements; (3)
discriminatorily withdrawing certification of the San Francisco Bowl,
refusing to recertify the Aloha Bowl, and decertifying the Seattle Bowl
despite substantial compliance with the requirements for maintaining
certification and receiving recertification; (4) imposing upon Aloha Sports
unreasonable and arbitrary standards of conduct, and (5) terminating and
refusing to renew Aloha Sports’ San Francisco and Seattle Bowls without good
cause and in violation of the NCAA’s terms and standards applicable to all
bowls. These grounds are largely not relevant to this appeal, and all
references to Aloha Sports’ UMOC claim refer to only the alleged HRS § 480-2
violation in Subsection 23(f) of the second amended complaint based on the
(continued . . .)
8
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The NCAA filed a motion to dismiss the second amended
complaint with prejudice, contending, among other things, that
Aloha Sports did not plead sufficient facts to support its UMOC
claim. On February 26, 2008, the court entered an order
granting in part and denying in part the NCAA’s motion,
dismissing with prejudice the UMOC claim for the reason cited by
the NCAA and dismissing several of Aloha Sports’ other claims
for relief. (Order Dismissing UMOC Claim).
The remaining claims proceeded to jury trial in
September 2011.9 On September 8, 2011, at a hearing on a motion
in limine prior to trial, Aloha Sports indicated that the
intentional interference with prospective economic advantage
claim was the sole grounds upon which it wished to proceed, as
the company did not believe it was likely to prevail on its
remaining claims (including the alleged violations of HRS § 480-
2 that had not been previously dismissed).10
(. . . continued)
NCAA’s purported blocking of Aloha Sports’ transfer of ownership to Pro
Sports.
9
The Honorable Karl K. Sakamoto presided over the jury trial, as
well as a preceding motion granting Aloha Sports leave to file a third
amended complaint excluding any claims related to the Aloha/San Francisco
Bowl. The third amended complaint otherwise was identical to the second
amended complaint.
10
The transcript of the September 8, 2011 hearing reflects the
following:
(continued . . .)
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On September 19, 2011, the jury returned a verdict in
favor of the NCAA on Aloha Sports’ claim for tortious
interference with prospective business advantage. On January
12, 2012, the court entered final judgment in favor of the NCAA
as to all claims. The final judgment stated that the UMOC claim
(. . . continued)
[ALOHA SPORTS]: Correct. Just for the record, your Honor,
the sole claim on which we’re proceeding we can abandon all
other claims which may have been pled. The sole claim in
which we’re proceeding is intentional interference with
prospective business advantage. That's it. So all the
antitrust claims, the franchise claims, the claim under
480-2 all -- all are abandoned.
. . .
[ALOHA SPORTS]: Excuse me. We don’t think on the record we
can satisfy the test that the Hawaii Supreme Court
established with the Davis case, which converted 480-2
which was a redundant antitrust statute, but I don't think
we can do that, so that’s-
THE COURT: Right. It makes it very, very difficult to
satisfy proof especially without an expert.
. . .
[NCAA]: So it’s clear that the theory of contract based on
the handbook is also out?
[ALOHA SPORTS]: Correct. The singular claims prospective
advantage.
THE COURT: Right. That’s --
[NCAA]: So we’re down to one cause of action interference
with respective [sic] economic advantage.
THE COURT: That’s correct.
[NCAA]: And everything else is dismissed.
THE COURT: That’s correct.
10
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was dismissed with prejudice pursuant to the February 26, 2008
order. It further stated that claims in the second amended
complaint that had been dismissed by the “2/28/08 Dismissal
Order”11 but repeated in the third amended complaint were equally
dismissed, and that Aloha Sports’ “remaining” HRS ' 480-2 claims
in the third amended complaint were dismissed with prejudice
pursuant to Aloha Sports’ September 8, 2011 oral motion.
After unsuccessfully moving the court to vacate the
final judgment and grant a new trial, Aloha Sports filed a
notice of appeal from the final judgment and other orders in the
case, including specifically from the Order Dismissing UMOC
Claim.12
On October 30, 2013, the ICA issued a memorandum
opinion.13 As to the dismissal of the UMOC claim, the ICA found
that a factual basis for the claim could be discerned from the
facts alleged in the second amended complaint. Specifically,
the ICA pointed to the complaint’s allegations that the “NCAA
11
It appears that section 3 of the Final Judgment mistakenly refers
to the “2/26/08 Dismissal Order” as the “2/28/08 Dismissal Order.”
12
Aloha Sports also appealed from the Order Granting in Part and
Denying in Part Defendant The National Collegiate Athletic Association’s
Motion for Attorneys’ Fees and Costs, Filed January 31, 2012 (Attorney’s Fee
Order).
13
The ICA’s memorandum opinion can be found at Aloha Sports Inc. v.
NCAA, No. CAAP-XX-XXXXXXX, 2013 WL 5823893 (Haw. App. Oct. 30, 2013).
11
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knew about the pending sale to Pro Sports and the significance
of certification to the pending transaction,” and that “the NCAA
disrupted the transaction by encouraging Pro Sports to abandon
the deal with Aloha and apply for a bowl game independent of
Aloha.” The ICA held that, if true, these alleged facts would
be sufficient to establish that the NCAA employed an unfair
method of competition. Accordingly, the ICA vacated the Order
Dismissing UMOC Claim and the circuit court’s January 12, 2012
final judgment and remanded the case to the circuit court for
further proceedings.14
C. Circuit Court Proceedings on Remand
On remand, the NCAA filed a motion for judgment on the
pleadings, or in the alternative, a motion for summary judgment
on the UMOC claim (Motion for Summary Judgment).15 The NCAA
argued that the UMOC claim was barred by collateral estoppel
because Aloha Sports relied on the same allegations underlying
the UMOC claim to support its claim for tortious interference
with prospective business advantage at the jury trial and the
jury had decided these factual issues in the NCAA’s favor. The
14
The ICA also vacated the Attorney’s Fee Order and affirmed all
other circuit court rulings at issue.
15
The Honorable Karl K. Sakamoto also presided over the circuit
court proceedings on remand.
12
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NCAA contended that, because the facts were actually litigated,
finally decided, and essential to the final judgment, Aloha
Sports should be estopped from relitigating them on remand.
The NCAA also maintained that Aloha Sports was
judicially estopped from pursuing the UMOC claim because at the
motion in limine hearing on September 8, 2011, Aloha Sports
abandoned all claims other than the claim for tortious
interference with prospective business advantage and conceded it
could not meet the burden of establishing a violation of HRS §
480-2. The NCAA asserted that (1) Aloha Sports’ present
position was factually incompatible with its prior position; (2)
the prior inconsistent position had been accepted by the court;
and (3) permitting Aloha Sports to continue to pursue the UMOC
claim granted Aloha Sports an unfair advantage.
As to the merits of the UMOC claim, the NCAA argued
that there was no dispute that the NCAA had legitimate business
reasons not to certify the 2003 Seattle Bowl, including the 2002
Seattle Bowl’s untimely letter of credit and lack of payment to
teams and local vendors. The NCAA maintained that discovery had
closed and Aloha Sports could not present any evidence that
decertification was intended to induce Pro Sports to forgo the
contemplated purchase of Aloha Sports. Thus, the NCAA argued,
Aloha Sports could not prove that it was harmed as a result of
13
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actions by the NCAA that negatively affected competition. The
NCAA also contended that it was entitled to summary judgment
because Aloha Sports had not presented any facts demonstrating
an anti-competitive impact on the bowl game market as a result
of the NCAA’s alleged actions.
In its memorandum in opposition, Aloha Sports
responded that the UMOC claim was not barred by collateral
estoppel because the jury made no specific findings of fact when
it decided in the NCAA’s favor on the claim for interference
with prospective economic advantage. Additionally, Aloha Sports
asserted, the elements of an unfair method of competition claim
are distinct from those of a claim for interference with
prospective economic advantage. Further, Aloha Sports argued,
no final judgment existed for purposes of collateral estoppel
because it had been vacated by the ICA decision. The UMOC claim
was also not barred by judicial estoppel, Aloha Sports
contended, because the claim had already been dismissed in
February 26, 2008. Therefore, Aloha Sports maintained, the
claim could not have been abandoned or conceded at the September
8, 2011 hearing.
Aloha Sports also argued that it presented sufficient
evidence demonstrating that the NCAA denied recertification of
the 2003 Seattle Bowl in order to induce Pro Sports to abandon
14
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its intent to purchase Aloha Sports. Aloha Sports contended
that, contrary to the NCAA’s assertion, it did not need to prove
that its injury resulted from actions by the NCAA that were
harmful to competition to withstand summary judgment.
On June 9, 2015, the circuit court issued an order
granting summary judgment to the NCAA on the UMOC claim (Order
Granting Summary Judgment).16 The court held that Aloha Sports
was barred by waiver and judicial estoppel because Aloha Sports
had implicitly surrendered the UMOC claim by its statements at
the September 8, 2011 hearing. The circuit court reasoned that
the UMOC claim required proof of an additional element under
this court’s precedents and thus would have been more difficult
to prevail upon than the alleged HRS § 480-2 violations that
Aloha Sports expressly abandoned. Aloha Sports therefore
impliedly conceded that it was unable to prove the UMOC claim
when it voluntarily dismissed its other HRS § 480-2 claims, the
court concluded.
The circuit court also held that Aloha Sports was
collaterally estopped from proceeding on its UMOC claim. The
16
The full title of the court’s order is “Order Granting Defendant
The National Collegiate Athletic Association’s Motion For Judgment On The
Pleadings, Or In The Alternative, For Summary Judgment On The Sole Remaining
Claim For Unfair Competition Alleged In Plaintiff’s Third Amended Complaint,
Filed May 27, 2011, Filed September 25, 2014 [Civ. No. 06-1-1832-10 (June 9,
2015)].”
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court stated that, because Aloha Sports had not alleged one of
the specific violations of HRS § 480-2(a) identified by statute,
it fell to the court to identify the elements that must be
satisfied to establish an unfair method of competition in this
case. The court determined that the alleged unfair method of
competition--the NCAA’s interference with Aloha Sports’ transfer
to Pro Sports--was essentially a claim for tortious interference
with prospective business advantage, and HRS § 480-2(a)
therefore incorporated the elements of a tortious interference
claim. Accordingly, the circuit court found that proving facts
establishing tortious interference was a prerequisite to proving
that the NCAA derivatively violated HRS § 480-2. Because the
jury had entered a verdict in favor of the NCAA on the tortious
interference claim and a final judgment had been issued, the
court concluded that Aloha Sports could not now proceed on an
unfair method of competition claim based on the same alleged
conduct.
The court further held that the NCAA had successfully
demonstrated that it acted with a legitimate business purpose in
denying the recertification of the 2003 Seattle Bowl, that Aloha
Sports did not submit any evidence showing that the NCAA acted
in an anticompetitive manner, and that Aloha Sports did not
demonstrate that its injury resulted from the NCAA’s alleged
16
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anticompetitive conduct. Final judgment was entered in favor of
the NCAA on August 11, 2015,17 from which Aloha Sports appealed
to the ICA.
D. Second ICA Appeal
On October 30, 2017, the ICA issued a Summary
Disposition Order affirming the circuit court’s grant of summary
judgment in favor of the NCAA.18 The ICA held that Aloha Sports
failed to present any evidence that the NCAA’s alleged conduct
affected competition, which was needed to satisfy the nature of
competition requirement of a claim for an unfair method of
competition in violation of HRS § 480-2(a). Specifically, the
ICA held that Aloha Sports failed to (1) specify the relevant
market; (2) provide evidence of the anticompetitive effect of
the NCAA’s conduct on that market; and (3) demonstrate how Aloha
Sports, a bowl-sponsoring agency, was in competition with the
NCAA. Further, the ICA stated that, in order to prove an
anticompetitive effect, it was not sufficient for Aloha Sports
to prove harm to its individual business. Rather, Aloha Sports
17
The final judgment also included an order granting in part and
denying in part a motion for reinstatement of the Attorney’s Fee Order, filed
August 4, 2015 (Order to Reinstate Attorney’s Fee Order).
18
The ICA’s SDO can be found at Aloha Sports Inc. v. The NCAA, NO.
CAAP-XX-XXXXXXX, 2017 WL 4890131 (Haw. App. Oct. 30, 2017), as corrected
(Jan. 11, 2018).
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was required to demonstrate an adverse impact to competitive
conditions generally within the commercial field in which it was
engaged.
Additionally, the ICA held that the NCAA’s conduct was
not an unfair competitive act because the 2001-02 Handbook
allowed for decertification of a non-compliant bowl, and the
NCAA demonstrated that Aloha Sports had not complied with
certification requirements pertaining to the 2002 Seattle Bowl.19
Based on its holdings regarding the UMOC claim, the
ICA did not reach the other reasons cited by the circuit court
for granting summary judgment--waiver, judicial estoppel, and
collateral estoppel. The ICA thus affirmed the circuit court’s
ruling granting NCAA summary judgment on the UMOC claim.20
Aloha Sports timely filed an application for writ of
certiorari from the ICA’s January 24, 2018 Judgment on Appeal,
which this court granted.
19
The ICA specifically cited the 2001-02 Handbook in its SDO, which
did not contain the conflicting provision added in the 2002-03 Handbook that
stated nonfulfillment of certification requirements would be punished by
probation. See supra text accompanying note 5.
20
The ICA also affirmed the “Judgment” entered on August 11, 2015;
the Order to Reinstate Attorney’s Fees Order; and the Attorney’s Fee Order.
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II. STANDARD OF REVIEW
This court reviews a trial court’s grant or denial of
summary judgment de novo. Anastasi v. Fid. Nat’l Title Ins.
Co., 137 Hawaii 104, 112, 366 P.3d 160, 168 (2016) (citing
Bremer v. Weeks, 104 Hawaii 43, 51, 85 P.3d 150, 158 (2004)).
III. DISCUSSION
On certiorari, Aloha Sports contends that the ICA
erred in the evidence it required Aloha Sports to present to
withstand summary judgment on its UMOC claim. In light of our
resolution of this issue, we also address the circuit court’s
alternative grounds for granting summary judgment, including
that Aloha Sports’ claim was waived and that Aloha Sports was
judicially and collaterally estopped from proceeding upon this
claim.21 We evaluate each issue in light of the legal standard
for summary judgment:22
[S]ummary judgment is appropriate if . . . there is no
genuine issue as to any material fact and that the moving
21
Aloha Sports also challenges on certiorari the ICA’s affirmation
of the circuit court’s Order to Reinstate Attorney’s Fees Order and the
Attorney’s Fee Order.
22
In this case, the record indicates that the NCAA’s motion was
filed after the close of discovery. It is noted that the movant’s burden is
generally greater when a party seeks summary judgment before discovery has
concluded. See Ralston v. Yim, 129 Hawai‘i 46, 48, 61, 292 P.3d 1276, 1278,
1291 (2013) (“[I]n general, a summary judgment movant cannot merely point to
the non-moving party's lack of evidence to support its initial burden of
production if discovery has not concluded.” (citing French v. Hawaii Pizza
Hut, Inc., 105 Hawai‘i 462, 472, 99 P.3d 1046, 1056 (2004))).
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party is entitled to judgment as a matter of law. A fact
is material if proof of that fact would have the effect of
establishing or refuting one of the essential elements of a
cause of action or defense asserted by the parties. The
evidence must be viewed in the light most favorable to the
non-moving party.
Anastasi v. Fid. Nat’l Title Ins. Co., 137 Hawaii 104, 112, 366
P.3d 160, 168 (2016) (quoting Omerod v. Heirs of Kaheananui, 116
Hawai‘i 239, 254–55, 172 P.3d 983, 998–99 (2007)).
A. Evidence Necessary to Withstand Summary Judgment on an HRS
§ 480-2 Unfair Method of Competition Claim
Hawaii's antitrust law, codified in HRS Chapter 480,
includes a general prohibition at HRS § 480-2(a) stating that
unfair methods of competition in the conduct of any trade or
commerce are unlawful.23 HRS § 480-13 (1993 & Supp. 2002)24 in
23
HRS § 480-2 (2008) in relevant part provides as follows:
(a) Unfair methods of competition and unfair or deceptive
acts or practices in the conduct of any trade or commerce
are unlawful.
. . .
(e) Any person may bring an action based on unfair
methods of competition declared unlawful by this section.
24
HRS § 480–13 provides in relevant part as follows:
(a) Except as provided in subsections (b) and (c), any person who
is injured in the person's business or property by reason of
anything forbidden or declared unlawful by this chapter:
(1) May sue for damages sustained by the person and, if the
judgment is for the plaintiff, the plaintiff shall be
awarded a sum not less than $1,000 or threefold damages by
the plaintiff sustained, whichever sum is the greater . . .
.
(Emphasis added.)
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turn establishes a private right of action to seek recovery for
damages flowing from a party’s HRS Chapter 480 violation.
To recover under HRS § 480-13(a) for an unfair method
of competition violation, a plaintiff must prove: (1) a
violation of HRS Chapter 480; (2) an injury to the plaintiff’s
business or property that flows from the defendant’s conduct
that negatively affects competition or harms fair competition;
and (3) proof of damages. Gurrobat v. HTH Corp., 133 Hawaii 1,
21, 323 P.3d 792, 812 (2014). The second element has two parts.
Id. First, a plaintiff is required to demonstrate “an injury in
fact to his or her ‘business or property.’” Id. Second, a
plaintiff is required to show the “nature of the competition.”
Id. This latter requirement is met by demonstrating how the
defendant’s conduct negatively affects competition or harms fair
competition. Id. at 22-23, 323 P.3d at 813-14.
We thus consider if Aloha Sports demonstrated a
question of material fact as to the elements of its UMOC claim
and whether the ICA imposed evidentiary requirements beyond what
was required under our law.25
25
In evaluating a motion for summary judgment, we apply a burden-
shifting framework under which the moving party bears the initial burden of
demonstrating that no genuine issue of material fact exists with respect to
the essential elements of the claim and that the undisputed facts entitle the
party to judgment as a matter of law. See Gurrobat v. HTH Corp., 133 Hawai‘i
1, 14, 323 P.3d 792, 805 (2014). Where, as here, the non-movant bears the
(continued . . .)
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1. First Element: Violation of HRS Chapter 480
The first element for recovery under HRS § 480-13(a)
is proof of an HRS Chapter 480 violation. HRS § 480-2(a) does
not define unfair methods of competition, although a number of
other statutes cross-reference the provision and specify that
particular practices are per se violations of the prohibition.
See, e.g., HRS § 480D-4(a) (2008); HRS § 481B-4 (2008). This
court has recognized that the statutorily enumerated violations
are not an exhaustive catalogue of conduct that violates HRS §
480-2, as “[t]here is no limit to human inventiveness in this
field.” Cieri v. Leticia Query Realty, Inc., 80 Hawai‘i 54, 61,
905 P.2d 29, 36 (1995) (quoting H. Stand. Comm. Rep. No. 55, in
1965 House Journal, at 538).
(. . . continued)
burden of proof at trial, the movant may meet its initial burden by either
“(1) presenting evidence negating an element of the non-movant's claim, or
(2) demonstrating that the non-movant will be unable to carry his or her
burden of proof at trial.” Ralston, 129 Hawai‘i at 60-61, 292 P.3d at 1290-91
(citing French, 105 Hawai‘i at 470-72, 99 P.3d at 1054-56)). “Only once the
moving party has satisfied its initial burden of production does the burden
shift to the non-moving party to show specific facts that present a genuine
issue for trial.” Gurrobat, 133 Hawai‘i at 14, 323 P.3d at 805.
In this case, the circuit court found that the NCAA had met its
initial burden and that Aloha Sports then failed to present sufficient
evidence to raise a genuine issue of material fact. Because Aloha Sports’
arguments before this court focus on the sufficiency of the evidence it
presented, the circuit court’s finding that the NCAA met its initial burden
appears to be uncontested.
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The circuit court in this case stated that, because
the unfair method of competition alleged here is not
specifically defined by statute, it fell to the court to
determine the appropriate elements of a HRS § 480-2(a) violation
in this context. The court reasoned that the alleged offending
conduct was essentially a claim for tortious interference with
prospective business advantage, and thus it was necessary to
prove the elements of the tort in order to prove a HRS § 480-
2(a) violation.
Under our precedents, however, the evaluation of
whether particular, non-statutorily-enumerated conduct is unfair
is simply a question of fact that does not require incorporating
the elements of an analogous claim. See Robert’s Hawaii School
Bus, Inc. v. Laupahoehoe Transp. Co., 91 Hawaii 224, 239, 982
P.2d 853, 868 (1999), superseded by statute on other grounds.
“[C]ompetitive conduct ‘is unfair when it offends established
public policy and when the practice is immoral, unethical,
oppressive, unscrupulous or substantially injurious to
consumers.’”26 Id. at 255 n.34, 982 P.2d at 884 n.34 (quoting
26
Although the standard to prove a HRS § 480-2 violation and the
elements to establish a tortious interference with economic advantage may
seem similar in that the latter requires that a plaintiff intended to either
pursue “an improper objective of harming the plaintiff or use[] wrongful
means,” Hawaii Med. Ass'n v. Hawaii Med. Serv. Ass'n, Inc., 113 Hawai‘i 77,
116, 148 P.3d 1179, 1218 (2006) (quoting Omega Envtl., Inc. v. Gilbarco,
(continued . . .)
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State ex rel. Bronster v. U.S. Steel Corp., 82 Hawaii 32, 51,
919 P.2d 294, 313 (1996)). The circuit court thus erred in
finding that it was necessary for Aloha Sports to prove a claim
for tortious interference with prospective business advantage in
order to demonstrate a HRS § 480-2(a) violation.
In its memorandum opinion addressing Aloha Sports’
first appeal, the ICA ruled that Aloha Sports sufficiently
alleged facts to discern a claim for which relief could be
granted by alleging that the NCAA knew about Aloha Sports’
pending sale to Pro Sports and that the NCAA disrupted the
transaction by encouraging Pro Sports to abandon the deal with
Aloha Sports and apply for a bowl game independently of Aloha
Sports.
On remand, Aloha Sports substantiated its allegations
of the NCAA’s knowledge of the pending sale by providing
evidence that the Subcommittee received information on Pro
Sports’ qualifications to organize and promote the 2003 Seattle
Bowl and to pay the 2002 Seattle Bowl debts. Additionally,
Aloha Sports submitted to the court the NCAA’s internal “Seattle
Bowl Issues” memorandum that stated that the sale of Aloha
(. . . continued)
Inc., 127 F.3d 1157, 1166 (9th Cir. 1997)), the elements of the two claims
are not identical. See infra, § III.C.
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Sports to Pro Sports was contingent upon recertification of the
Seattle Bowl. Aloha Sports also submitted evidence that the
NCAA expressed concern that Aloha Sports’ Terry Daw would remain
involved after the sale of Aloha Sports to Pro Sports, and that
immediately after announcing the decertification of the Seattle
Bowl, the NCAA’s Dennis Poppe and the Subcommittee privately
informed Feller, CEO of Pro Sports, that it could reapply
independently for certification of the Seattle Bowl the
following year. Aloha Sports also provided evidence raising a
question of fact as to whether the NCAA arbitrarily failed to
apply its requirement for a one-year probation period prior to
decertification of a bowl that was established for the 2002-03
season.
This evidence, at a minimum, gives rise to a question
of material fact as to whether the NCAA unfairly decertified the
2003 Seattle Bowl in order to disrupt the transaction between
Aloha Sports and Pro Sports, which a jury could consider
immoral, unethical, oppressive, unscrupulous or substantially
injurious to consumers. Thus, Aloha Sports demonstrated a
factual dispute as to a violation of HRS § 480-2(a) by virtue of
an unfair method of competition. The circuit court therefore
erred in concluding that summary judgment was warranted on this
basis.
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2. Second Element: Injury & Nature of Competition
a. Actual Harm to Competition Not Required to Withstand Summary
Judgment
To fulfill the second element of an unfair method of
competition violation, a plaintiff must (a) demonstrate an
injury in fact to one’s business and (b) demonstrate how a
defendant’s conduct negatively affects competition or harms fair
competition. Gurrobat, 133 Hawaii at 21, 323 P.3d at 812.
As to the injury requirement, the injury in fact must
flow from the anticompetitive conduct. Id. at 23, 323 P.3d at
814. Aloha Sports meets the injury requirement because it
presented evidence that as a result of the NCAA’s allegedly
unfair decertification of the 2003 Seattle Bowl--the NCAA’s
allegedly anticompetitive conduct--Aloha Sports was unable to
complete its sale to Pro Sports.
Turning to the nature of the competition requirement,
Aloha Sports contends that the ICA erred by holding that Aloha
Sports was required to provide evidence of anticompetitive
effects within that market to withstand summary judgment. In
response, the NCAA maintains that the ICA correctly applied
Hawaii and federal precedent to find that Aloha Sports did not
meet its burden as to the nature of competition requirement.
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We recently addressed a plaintiff’s burden when
opposing summary judgment on an unfair method of competition
claim in Gurrobat v. HTH Corporation, 133 Hawaii 1, 323 P.3d 792
(2014). In that case, service employees brought suit against
the operators of hotels (hotels) for distributing to non-service
employees a portion of the service charges it collected from
customers without informing customers of the practice, in
contravention of HRS § 481B-14. Id. at 16-17, 323 P.3d at 807-
08. We found that a genuine issue of material fact existed as
to the nature of competition requirement based upon evidence
that the hotels’ non-compliance with the service-charge law
allowed the hotels to lower their overall prices and thereby
obtain an “unfair and illegal business advantage” over compliant
competitors. Id. at 22, 323 P.3d at 813. Showing that the
conduct of the hotels enabled them to create incentives for
customers to choose their services over compliant competitorsʻ
services was sufficient to demonstrate that their conduct could
have negatively affected competition and thus defend against
summary judgment. Id.; see Hawaii Med. Ass'n v. Hawaii Med.
Serv. Ass'n, Inc., 113 Hawaii 77, 113, 148 P.3d 1179, 1215
(2006). It was not necessary for the plaintiffs to prove at a
summary judgment proceeding that the hotels’ conduct had in fact
harmed competition. See Gurrobat, 133 Hawaii at 22, 323 P.3d at
27
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813. Further, although the plaintiffs in Gurrobat offered the
evidence through expert testimony, we noted that expert
testimony was not necessary to create a genuine issue of
material fact regarding harm to competition sufficient to
withstand summary judgment. See id.
In this case, Aloha Sports set forth how the NCAA’s
alleged anti-competitive conduct would negatively affect
competition. Aloha Sports contends that the NCAA’s
decertification of the 2003 Seattle Bowl incentivized Pro Sports
to abandon its agreement with Aloha Sports and to independently
seek certification of a future Seattle Bowl through the NCAA.
Cf. Gurrobat, 133 Hawaii at 22, 323 P.3d at 813 (“plaintiffs may
prove how a defendant’s conduct negatively affects competition
by showing that defendant’s conduct enables the defendant to
create incentives for customers to purchase banquet services
from the defendant instead of competitors . . . .”); Hawaii Med.
Ass'n, 113 Hawaii at 113, 148 P.3d at 1215 (holding that
plaintiffs may demonstrate harm to competition by showing the
defendant engaged in “acts or practices that . . . create
incentives for patients to look elsewhere”). Aloha Sports
provided evidence that the NCAA no longer wished to deal with
Aloha Sports’ management and that immediately after its
decertification of the 2003 Seattle Bowl, the NCAA privately
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informed Pro Sports that it could apply independently for
certification of the Seattle Bowl in 2004. If true, the NCAA’s
conduct could be construed as wielding its power to ensure that
it only deals with its staff’s preferred applicants rather than
evaluating certification decisions in compliance with its
established rules and procedures.
It is reasonable to infer from this evidence that, as
argued by Aloha Sports, the NCAA’s allegedly arbitrary
certification decision could negatively affect competition by
(1) restricting the transfer of ownership of bowl games
contingent upon recertification; (2) leading to lower prices for
the sale of bowl sponsoring agencies because of uncertainty as
to whether a bowl will gain recertification; and (3) acting as a
restriction on output that would result in a loss of financial
benefits to schools and consumers who would have otherwise
participated in a given bowl. [W]e must view all of the
evidence and the inferences drawn therefrom[] in the light most
favorable to the party opposing the motion.” Anastasi, 137
Hawai‘i at 112, 366 P.3d at 168 (emphasis added) (quoting Omerod,
116 Hawai‘i at 254–55, 172 P.3d at 998–99).
Taken together in the light most favorable to Aloha
Sports, Aloha Sports has presented evidence raising a genuine
issue of material fact as to whether the NCAA’s conduct could
29
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negatively affect competition. Thus, the ICA erred in holding
that “Aloha [Sports] has failed to provide any evidence that the
NCAA’s conduct negatively affected competition,” and that Aloha
Sports did not raise an issue of material fact as to the “nature
of competition” to substantiate its UMOC claim.
Based on the foregoing, we conclude that Aloha Sports
raised a genuine issue of material fact as to the second element
of a HRS § 480-13(a) claim: an injury to the plaintiff’s
business or property that flows from the defendant’s conduct
that negatively affects competition or harms fair competition.27
b. Proof of Relevant Market, Harm to Market as a Whole, and
Competition with Defendant Not Required to Withstand Summary
Judgment
In its analysis regarding the nature of competition
requirement, the ICA held that to withstand summary judgment,
Aloha Sports needed to specify the relevant market and
demonstrate that the alleged conduct affected that market beyond
an adverse effect on Aloha Sports’ business. The ICA also
concluded that Aloha Sports was required to but failed to
27
The third element is proof of damages. Gurrobat, 133 Hawaii at
23, 323 P.3d at 814. Neither the circuit court in granting summary judgment
nor the ICA in affirming the circuit court based its decision on the absence
of a showing of proof of damages. Accordingly, since this issue is
undisputed and was not relied upon by the circuit court, we conclude that
Aloha Sports raised a disputed fact as to this element also.
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demonstrate that it was a competitor of or in competition with
the NCAA.
First, to defend against summary judgment, it is
sufficient for a plaintiff to offer proof of the general market
at issue without resort to expert testimony. In Gurrobat, the
plaintiffs contended that the defendants’ asserted unfair method
of competition would reduce fair competition “in the market for
hotels, restaurants, and banquet service providers”--those
generally in the field of competition with the defendant. 133
Hawaii at 22, 323 P.3d at 813. We did not require the
plaintiffs to define the market with great specificity in order
to raise a genuine issue of material fact. Here, Aloha Sports
presented sufficient evidence to discern the affected market by
describing the NCAA’s certification process and the underlying
competition among bowl sponsoring agencies vying for NCAA
certification of bowl games, the member institutions that
participate in the bowls, and the consumers that attend the
bowls.
Second, the ICA overstated the nature of competition
requirement on summary judgment as necessitating proof that the
defendant’s conduct in fact negatively affected the market
beyond Aloha Sports’ own injury. As stated in Gurrobat,
demonstrating actual negative effects on or harm to fair
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competition in the relevant market is not required.28 133 Hawaii
at 22, 323 P.3d at 813.
Finally, the ICA noted that Aloha Sports failed to
demonstrate that it was in competition with the NCAA. It is
well settled, however, that plaintiffs need not be competitors
or in competition with defendants to establish or recover from
an unfair method of competition in violation of HRS § 480-2(a).
Davis v. Four Seasons Hotel Ltd., 122 Hawaii 423, 435, 228 P.3d
303, 315 (2010); Hawaii Med. Ass'n, 113 Hawaii at 110, 148 P.3d
at 1212; see also HRS § 480-2(e) (“Any person may bring an
action based on unfair methods of competition declared unlawful
by this section.” (emphasis added)).
Thus, the ICA erred in affirming summary judgment on
the bases that (1) Aloha Sports “failed to specify the relevant
market,” (2) Aloha Sports did not demonstrate harm to the
market, and (3) Aloha Sports did not demonstrate that it was a
competitor of or in competition with the NCAA.
28
Additionally, the U.S. Supreme Court has held that under federal
anti-trust law, harm to a single business may suffice to establish an anti-
trust violation. Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207,
213 (1959) (“As such [a boycott by a combination of manufactures and dealers]
is not to be tolerated merely because the victim is just one merchant whose
business is so small that his destruction makes little difference to the
economy.”).
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B. Waiver and Judicial Estoppel
On remand, the circuit court held that Aloha Sports
was barred by waiver and judicial estoppel from asserting its
UMOC claim based on Aloha Sports’ statement at a pre-trial
hearing that it was solely preceding on its claim for
interference with prospective business advantage and was
abandoning all other claims.29
A waiver does not occur when there is no right in
existence to be waived. See Coon v. City & Cty. of Honolulu, 98
Hawaii 233, 261, 47 P.3d 348, 376 (2002) (“To constitute a
waiver, there must have existed a right claimed to have been
waived and the waiving party must have had knowledge, actual or
constructive, of the existence of such a right at the time of
the purported waiver.” (citations omitted)). Here, the circuit
court had dismissed Aloha Sports’ UMOC claim with prejudice
three years prior to the 2011 pre-trial hearing when the
purported waiver occurred. Indeed, the circuit court’s final
judgment, filed January 12, 2012, distinguished between the
29
As noted, the ICA did not address the circuit court’s holdings on
waiver, judicial estoppel, or collateral estoppel. However, the NCAA
requested at oral argument that this court address these holdings if we were
to conclude that there were disputed facts regarding the elements of a UMOC
claim and that summary judgment had thus been improperly granted on this
ground. Oral Argument at 00:36:50, Field v. The NCAA (No. SCWC-15-663),
http://oaoa.hawaii.gov/jud/oa/18/SCOA_071918_SCWC_15_663.mp3.
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claims dismissed in the Order Dismissing UMOC Claim and the
“remaining claims,” which were dismissed by Aloha Sports’
voluntary waiver at the pre-trial hearing. Thus, unlike the
claims that were voluntarily dismissed, Aloha Sports did not
have a then-existing right to proceed on the UMOC claim when the
2011 pre-trial hearing occurred.
In other words, prior to prevailing on its appeal of
the Order Dismissing UMOC Claim, Aloha Sports could not have
proceeded on the dismissed claim before the circuit court and
therefore could not waive that nonexistent right at the hearing.
Therefore, the circuit court erred in finding that Aloha Sports
had waived its UMOC claim.30
The doctrine of judicial estoppel precludes a party
from assuming a position that is inconsistent with a position
already accepted by the court to gain an unfair advantage in the
proceedings. See Gurrobat v. HTH Corp., 133 Hawaii 1, 20, 323
P.3d 792, 811 (2014); Roxas v. Marcos, 89 Hawaii 91, 124-25, 969
P.2d 1209, 1242-43 (1998). The doctrine is intended to protect
30
The circuit court held that Aloha Sports impliedly waived the
UMOC claim at the pre-trial hearing because it was more difficult to prove
than the other HRS § 480-2 claims that it expressly waived. Our precedent
does not make a distinction between an implied and express waiver in this
regard; without a then-existing right to proceed on the UMOC claim, Aloha
Sports was not capable of waiving the claim by implication. See Coon, 98
Hawaii at 261, 47 P.3d at 376.
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the integrity of the judicial system and prevents parties from
“playing ‘fast and loose’ with the court or blowing ‘hot and
cold’ during the course of litigation,” thereby promoting
“orderliness, regularity, and expedition of litigation.”
Gurrobat, 133 Hawaii at 20, 323 P.3d at 811 (quoting Rosa v. CWJ
Contractors, Ltd., 4 Haw. App. 210, 218–19, 664 P.2d 745, 751
(1983)). Because we hold that Aloha Sports did not waive its
UMOC claim at the pre-trial hearing, Aloha Sports did not assume
an inconsistent position by asserting its right to proceed on
that claim. Thus, Aloha Sports was not judicially estopped from
raising the UMOC claim.
Accordingly, we hold that the circuit court erred in
finding that waiver and judicial estoppel applied to preclude
Aloha Sport’s assertion of its UMOC claim.
C. Collateral Estoppel
The circuit court also held on remand that based on
the jury trial verdict finding that Aloha Sports failed to prove
by a preponderance of the evidence that the NCAA tortiously
interfered with Aloha Sport’s sale of itself to Pro Sports,
Aloha Sports was collaterally estopped from pursuing its UMOC
claim. Collateral estoppel, or issue preclusion, is a bar to
the relitigation of a fact or issue litigated in a prior suit
when four requirements are met:
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(1) the issue decided in the prior adjudication is
identical to the one presented in the action in question;
(2) there is a final judgment on the merits; (3) the issue
decided in the prior adjudication was essential to the
final judgment; and (4) the party against whom collateral
estoppel is asserted was a party or in privity with a party
to the prior adjudication.
Dorrance v. Lee, 90 Hawaii 143, 149, 976 P.2d 904, 910 (1999).
As an initial matter, Aloha Sports is correct in its contention
that, because the ICA vacated the circuit court’s January 12,
2012 final judgment, no final judgment in a prior case currently
exists and the elements of collateral estoppel are not met.
Nevertheless, we must consider whether the jury’s determination
as to Aloha Sports’ claim for tortious interference with
prospective business advantage resolved facts in this case that
would necessarily preclude recovery on Aloha Sports’ UMOC claim.
The elements of a HRS § 480-13(a) claim based on an
unfair method of competition and a claim for intentional or
tortious interference with prospective business advantage are
not identical. To establish an unfair method of competition
claim, a plaintiff must prove: “(1) a violation of HRS Chapter
480; (2) which causes an injury to the plaintiff's business or
property; and (3) proof of the amount of damages.” Gurrobat v.
HTH Corp., 133 Hawaii 1, 21, 323 P.3d 792, 812 (2014). Under
the second element, a plaintiff must demonstrate that the
defendant’s conduct negatively affects competition and that the
36
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plaintiff’s injury stems from the defendant’s anti-competitive
or unfair conduct. Id. at 22-23, 323 P.3d at 813-14. There is
no intent element required to establish an unfair method of
competition claim. See Hungate v. Law Office of David B. Rosen,
139 Hawaii 394, 413, 391 P.3d 1, 20 (2017) (citing Short v.
Demopolis, 103 Wash.2d 52, 691 P.2d 163, 172 (Wash. 1984)
(Pearson, J., concurring)).
In contrast, the elements of intentional or tortious
interference with prospective business advantage require the
plaintiff to prove all of the following:
(1) the existence of a valid business relationship or a
prospective advantage or expectancy sufficiently definite,
specific, and capable of acceptance in the sense that there
is a reasonable probability of it maturing into a future
economic benefit to the plaintiff; (2) knowledge of the
relationship, advantage, or expectancy by the defendant;
(3) a purposeful intent to interfere with the relationship,
advantage, or expectancy; (4) legal causation between the
act of interference and the impairment of the relationship,
advantage, or expectancy; and (5) actual damages.
Robert's Hawaii Sch. Bus, Inc. v. Laupahoehoe Transp. Co., Inc.,
91 Hawaii 224, 258, 982 P.2d 853, 887 (1999) (citations and
footnote omitted) (emphasis added). Notably, unlike an unfair
method of competition claim, tortious interference with
prospective business advantage includes a purposeful intent
element.
Although Aloha Sports relies on many of the same
underlying facts to support the UMOC claim as the tortious
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interference with prospective business advantage claim, the
jury’s verdict on the interference with prospective business
advantage claim did not provide any specific determinations
regarding the individual elements of that claim.31 Thus, it is
unclear which issues and facts the jury determined to render its
verdict. For example, the jury could have determined that the
NCAA was not liable for tortious interference with prospective
business advantage based solely on a failure to meet the
purposeful intent element--an element not required in an UMOC
claim. Simply stated, the jury’s determination that the NCAA
was not liable for tortious interference with prospective
business advantage did not definitively resolve factual issues
that would prevent Aloha Sports from satisfying the elements of
its UMOC claim. Accordingly, the circuit court erred in holding
that issue preclusion barred Aloha Sports from asserting its
UMOC claim.
31
The Special Verdict Form stated, “Did Plaintiff ASI prove by a
preponderance of the evidence that Defendant NCAA tortiously interfered with
ASI’s prospective business advantage with Pro Sports & Entertainment?” In
the space marked “No” the jury indicated that all “12” jurors found that
Aloha Sports had not proven tortious interference beyond a preponderance of
the evidence. Because the jury marked “No” on the first question, the jury
was not required to and did not respond to the remaining questions, i.e.,
whether Aloha Sports had proven beyond a preponderance of the evidence that
the NCAA’s actions were the cause of Aloha Sports harm, or the reasonable
dollar amount of that harm.
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IV. CONCLUSION
Based on the foregoing, Aloha Sports raised genuine
issues of material fact as to the first and second elements of
an UMOC claim. The third element, damages, has not been
contested. Therefore, the ICA erred in affirming the circuit
court’s order and judgment granting the NCAA summary judgment.
Further, the circuit court erred in holding that Aloha Sports
was estopped from asserting the UMOC claim based on waiver,
judicial estoppel, and collateral estoppel. We therefore vacate
the ICA’s judgment on appeal, the circuit court’s final
judgment, and the Order Granting Summary Judgment, and the case
is remanded to the circuit court for proceedings consistent with
this opinion.32
Amy T. Brantly /s/ Mark E. Recktenwald
Frederick W. Rohlfing, III
for petitioner /s/ Paula A. Nakayama
Gregory L. Curtner /s/ Sabrina S. McKenna
William C. McCorriston
Jordon J. Kimura /s/ Richard W. Pollack
for respondent
/s/ Michael D. Wilson
32
Based on our disposition, the ICA’s holding affirming the
Attorney’s Fee Order is also vacated because it flows from the ICA and
circuit court’s holdings that the NCAA was the prevailing party on summary
judgment. See HRS § 607-14 (2016); Blair v. Ing, 96 Hawaii 327, 331, 31 P.3d
184, 188 (2001).
39