SUSSEX COMMONS OUTLETS L.L.C v. CHELSEA PROPERTY GROUP INC.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3714-07T1

SUSSEX COMMONS OUTLETS, L.L.C.,

Plaintiff-Appellant,

v.

CHELSEA PROPERTY GROUP, INC.

and CPG PARTNERS, L.P.,

Defendants-Respondents.

_____________________________________

September 23, 2010

 

Argued April 13, 2010 - Decided

 

Before Judges Fuentes, Gilroy and Simonelli.

 

On appeal from Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-554-03.

 

Arthur S. Goldstein argued the cause for appellant (Wolff & Samson, PC, attorneys; Mr. Goldstein and Adam K. Derman, on the brief).

 

Murray J. Laulicht argued the cause for respondent (Day Pitney, LLP and Morgan, Lewis & Bockius, LLP, attorneys; Mr. Laulicht, on the brief).

PER CURIAM

The dispute in this case involves an outlet shopping center, which plaintiff Sussex Commons Outlets, LLC seeks to develop in the Ross Corner section of Frankford Township in Sussex County to be known as Sussex Commons Lifestyle Outlets (Sussex Commons). Plaintiff filed a complaint against defendants Chelsea Property Group, Inc. and CPG Partners, L.P. (collectively "defendant") claiming tortious interference with prospective business advantage, unfair competition, and prima facie tort stemming from defendant's alleged attempts to impede the development of Sussex Commons. Plaintiff appeals from the February 25, 2004 Law Division order granting defendant's Rule 4:6-2(e) motion to dismiss the unfair competition claim, and from the February 25, 2008 order granting defendant's summary judgment motion, dismissing plaintiff's tortious interference claim.1 We affirm.

I.

A.

Defendant is engaged in the outlet shopping center industry. It owns and operates outlet malls, including two at issue here: Woodbury Common Premium Outlets, located in Central Valley, New York (Woodbury Common), and The Crossings Premium Outlets, located in Tannersville, Pennsylvania (The Crossings). The terms "Premium Outlets Center" and "Premium Outlets" are defendant's trademarks.

Outlet shopping malls consist of retail shopping space and supporting facilities specifically planned and designed to accommodate manufacturer-operated outlet retail stores that sell primarily first-quality, brand-name and designer goods at significant discounts from regular department and specialty store prices. Although a typical regional shopping mall has a five- to fifteen-mile trade area, an outlet mall's trade area extends much further.

Woodbury Common is one of the largest, most successful and productive outlet malls in the United States. It is the "crown jewel" of the outlet industry and a highly desirable location for retailers. It has over two hundred tenants representing nearly every significant outlet retailer in the country. It serves much of the New York market, and its market trade area is greater than sixty miles from its location. The Crossings is one of the "top ten" outlet malls in the United States and contains approximately one hundred outlet stores. It is accessible by Interstate 80, and its market trade area includes New York.

Defendant considered the Ross Corner location as posing a threat of competition to Woodbury Common and The Crossings. When a developer expressed an interest in developing an outlet center at that location in 1998, defendant responded by entering into a lease with a tenant at Woodbury Common that would require the tenant to compensate defendant if the tenant leased an outlet store at Ross Corner; however, the development never occurred.

In early 2003, plaintiff announced its plan to develop Sussex Commons at Ross Corner. Plaintiff's marketing materials announced that Sussex Commons "will combine the welcoming feel of a colonially-inspired village with an upscale shopping experience. It will include 328,000 square feet of outlets, over 90 premium brand retailers, restaurants and eateries, and five out parcels." (Emphasis added.)

Plaintiff's marketing material also announced its intent to draw shoppers to Sussex Commons from the New York and Pennsylvania market trade areas encompassed by Woodbury Common and The Crossings. For example, one marketing document stated, "Within 50 miles of [Ross Corner] is a population of almost 13 million potential shoppers. According to the most recent Gallup Study of the Outlet Industry approximately 63% of Outlet Shoppers travel up to one hour, well within the commute of this population of 13 million people." Google maps in the record reveal that Ross Corner is 44.2 driving miles from Woodbury Common and 45.2 driving miles from The Crossings. Another marketing document identified Sussex Commons' market trade area as including Orange County, New York, where Woodbury Common is located, and Warren County, New Jersey, and Pike County, Pennsylvania, which are immediately adjacent to The Crossings. Plaintiff's leasing material stated that Ross Corner is a "quick trip for the New York City shopper (55 minutes)." Plaintiff's expert conceded that Woodbury Common's market trade area extended "40-something miles."

Plaintiff's marketing material also announced its intent to market Sussex Commons as an alternative to Woodbury Common and The Crossings. For example, a map in plaintiff's marketing material shows Ross Corner as being located midway between Woodbury Common to the east and The Crossings to the west and depicts Woodbury Common and The Crossings as within the fifty- mile radius from which Sussex Commons would draw shoppers. Another document states that "Outlet customers must travel either East to Woodbury Common and pay New York Sales Tax or West to The Crossings."

Defendant viewed Sussex Commons as a competitive threat to its percentage market share and did not want the outlet center built. Thus, in order to protect its business interests, defendant negotiated a radius clause or a site-specific clause in leases with certain tenants at Woodbury Common and/or The Crossings. For example, plaintiff's lease with Phillips-Van Heusen Corporation (Van Heusen) contains a radius clause providing that Van Heusen will not own or operate an outlet store within a thirty-five mile radius of The Crossings. Plaintiff's lease with Jones New York contains a site-specific clause providing that, in lieu of a specific radius, Jones New York would not own or operate an outlet store in Sussex Commons.2 Some leases contained forty-five- or sixty-mile radius clauses.

A radius clause, which is commonly used in leases in the outlet center industry, protects the landlord's market trade area from competition, the landlord's interest in percentage rent, and the exclusivity of the landlord's tenant mix. The inclusion of a radius restriction in a lease, and its scope, are generally the result of negotiations between the landlord and tenant.

Because rent amounts in shopping center leases typically include a percentage of the retailer's sales at that location, shopping center owners often seek to maximize rent payments by negotiating a radius clause. Plaintiff was well-aware of the use of radius clauses in outlet center leases. In fact, its lease proposals to prospective tenants at Sussex Commons contained a twenty-five-mile radius clause, and its principals had involvement with radius clauses extending as far as sixty miles.

The radius clauses defendant negotiated with tenants at Woodbury Common and The Crossings do not prevent those tenants from owning or operating an outlet store within the stated radius or at Sussex Commons. Rather, the clauses provide for an "added sales remedy," which increases the tenant's rent in accordance with a formula based on sales at the new outlet store. The purpose of the clause is to compensate defendant for anticipated lost sales if the tenant opens an outlet store within the radius or at the specific site. In conjunction with the radius clause, defendant gave tenants reduced rent as a trade-off. Defendant was also willing to waive the radius clause depending on the tenant and the situation.

Plaintiff solicited one hundred and eighty-eight prospective tenants. One hundred and nine of those prospective tenants are tenants at Woodbury Common and/or The Crossings, and fifty-seven had a radius clause that encompassed Sussex Commons.

Plaintiff claims that defendant threatened and intimidated its tenants to accept a radius clause in order to prevent them from executing leases with plaintiff, making it impossible for plaintiff to successfully develop Sussex Commons. However, this claim is not supported by any competent evidence.3 To the contrary, the deposition testimony of representatives of six of defendant's tenants who declined to lease at Sussex Commons did not attribute the decision to defendant's conduct but rather to reasons having nothing to do with defendant. Moreover, none of defendant's tenants have joined in this litigation or challenged their radius or site-specific clause.

B.

In connection with developing Sussex Commons, plaintiff had to obtain a number of governmental permits, licenses, and approvals relating to zoning, sewerage, roads, environmental concerns, and fire protection. Also, Frankford Township had to obtain "town center" designation from the New Jersey Office of Smart Growth (OSG) in order for plaintiff to obtain many of the approvals required by other State agencies, including the New Jersey Department of Environmental Protection.

As of May 2007, plaintiff had received approval from the New Jersey Department of Transportation to make road alterations at Ross Corner and had entered into an agreement with the Sussex County Municipal Utilities Authority. Plaintiff also had received preliminary major site plan and subdivision approval. However, a wastewater management plan and issues regarding Frankford Township's housing element remained unresolved.

Plaintiff claims that in addition to the radius clauses, defendant's wrongful actions include "thwarting" its application for government approvals by the hiring a prominent lobbyist to "squelch" Frankford Township's application for "town center" designation. However, defendant did not retain the lobbyist to perform lobbying services. Rather, defendant retained the lobbyist to perform non-lobbying services, including obtaining information about the OSG's process and information from relevant government agencies. Although the lobbyist had several conversations with the OSG's director to gather information about the progress of Frankford Township's application for "town center" designation, there is no evidence that the lobbyist tried to influence the OSG's decision.

Sussex Commons has also drawn substantial public opposition. A group known as the Citizens for Responsible Development at Ross Corners (CRDRC) opposed the development of Sussex Commons and filed objections to several of plaintiff's applications. Defendant made contributions to the CRDRC, including monies to fund a traffic study. Plaintiff claims that defendant secretly funded the CRDRC and concealed this conduct.

 

C.

Plaintiff filed a complaint on October 7, 2003, and an amended complaint on October 31, 2003. On December 2, 2003, defendant filed a motion to dismiss the amended complaint pursuant to Rule 4:6-2(e) for failure to state a claim upon which relief can be granted. In a February 25, 2004 written decision, the trial judge granted the motion in part, dismissing plaintiff's unfair competition and prima facie tort claims without prejudice. The judge found that plaintiff had not alleged that defendant misappropriated any commercial property belonging to plaintiff, and thus, plaintiff failed to plead a prima facie case for unfair competition.

On January 6, 2006, plaintiff filed a second amended complaint also including additional facts relating to defendant's alleged attempt to prevent the development of Sussex Commons. On June 29, 2007, defendant filed a summary judgment motion. In a February 25, 2008 oral decision, the trial judge granted the motion and dismissed the second amended complaint with prejudice. The judge found that Sussex Commons would compete with Woodbury Common and The Crossings, stating,

In the [marketing materials] it said 'Outlet customers must travel either east to Woodbury Common[] and pay New York sales tax or west to Tannersville, Pennsylvania.' . . . I think a fair understanding of the geography of the marketing literature and of the economic reality is that . . . these are very, very large outlet centers. They draw their customers . . . from a fairly broad area. And Sussex Commons was marketing itself as someone who was going to go into an area between the Woodbury Common and The Crossings, and provide an alternate location for people to bring their dollars. . . . Sussex Commons was projecting to take a portion of . . . market share from [Woodbury Common and The Crossings]. That is a fair understanding of the various documents that have been presented. . . . [P]articularly I think it's crystalized in some of these marketing documents.

 

. . . .

 

Reduced to fairly simple terms, . . . Sussex Commons . . . proposes to tuck itself in between [Woodbury Common and The Crossings]. [Plaintiff] want[s] a part of that market share . . . and [defendant] does not want to give it up.

 

. . . .

 

. . . [E]conomically, when all is said and done, the question is where are the customers going to take their dollars to buy their goods. And . . . getting back . . . [to] the plaintiff's marketing documents, [plaintiff] want[s] to get outlet customers, who now have to travel east or west, to stop doing that and come to [Sussex Commons] with their dollars.

 

Addressing whether the means defendant used to prevent competition were within the CRDRC was not fraudulent or illegal, but rather speech protected by the Noerr-Pennington doctrine.4 The judge also found that defendant's reduced rent incentives and radius clauses were not illegal or fraudulent. Rather, defendant had "the right under the banner of competition to try to prevent the Sussex Commons project from being built and luring customers away from Woodbury Common[] and [The Crossings]." In sum, the judge found that:

The defendant wanted very much not to allow [Sussex Commons] to be built. [Defendant] did a whole variety of things to prevent [Sussex Commons] or at least impair [it] from being built at . . . Ross Corner[] including using radius restrictions and/or penalty provisions or a specific disqualification[] in leases and things of that nature. But as the point is made, I think very clearly in Ideal Dairy [Farms, Inc. v. Farmland Dairy Farms, Inc., 282 N.J. Super. 140 (App. Div.), certif. denied, 141 N.J. 99 (1995)], that if you have a legitimate business reason for those actions, you can do them as long as they are not illegal or fraudulent.

 

I note that looking at radius restrictions, . . . plaintiff, itself, [used] radius restrictions in [leases] that they propose. They include radius restrictions. So in that very basic sense [radius restrictions are] not outside the rules of the game.

. . . .

 

[I] find that the defendant is not obligated to allow someone else to come in and take a market share. The restriction that [defendant has] is that [it] can't do it through illegal or fraudulent or dishonest means. I don't find that any of the means that have been laid out here are . . . fraudulent, dishonest or illegal. . . . Everybody knows what the leases say. And I think everybody understands what their effect and intent is. But I don't think they are illegal documents Parenthetically, if any of the tenants had challenged the radius restriction clauses --and it's interesting to note they're not part of this action, and to my knowledge they haven't, themselves, attacked the restriction clauses, . . . . The prospective tenants have to make choices in terms of what leases they enter into and what's in their economic interest to acquiesce in or not acquiesce in. I do think there's a very real sense in which this conduct . . . does prevent entry of the Sussex Commons project into the market. That was [defendant's] stated intention, to stop the project, to prevent entry. This is not an antitrust case. And as my understanding of the law is now, that that kind of competition is countenanced.

 

Relying on Ideal Dairy Farms, Inc., the judge concluded that plaintiff failed to establish malicious interference. This appeal followed.

II.

Plaintiff contends that in granting summary judgment on its tortious interference claim, the trial judge improperly found that Sussex Commons will compete with Woodbury Common and The Crossings, which is a disputed issue of fact. Plaintiff argues that there will be no competition because Sussex Commons is not a "Premium Outlet Center," and therefore will offer different products than those offered at Woodbury Common and The Crossings; Sussex Commons' market trade area was only twenty miles from Ross Corner, and thus will serve a different market trade area; and Sussex Commons would only affect one percent of Woodbury Common sales and would not materially impact it. We disagree.

Our view of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009). Thus, we consider, as the trial judge did, "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445 46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1986)). Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008) (citing Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998)).

Applying these standards, we are satisfied that the overwhelming evidence in this case leaves no doubt that Sussex Commons would compete with Woodbury Common and The Crossings. Sussex Commons' market trade area extends well beyond twenty miles from Ross Corner and overlaps Woodbury Common's and The Crossings' market trade areas. Sussex Commons unequivocally sought to draw shoppers from Woodbury Common's and The Crossings' market trade areas, and to offer them an "upscale shopping experience" with "over 90 premium brand retailers[.]" Plaintiff's solicitation of Woodbury Common's and The Crossings' premium brand retail tenants underscores this fact.

Further, plaintiff's unfair competition claim belies its insistence that there will be no competition. Inherent in that claim is that there was, in fact, competition between the parties. Accordingly, the trial judge correctly concluded that Sussex Commons would compete with Woodbury Common and The Crossings.

 

III.

Plaintiff contends that in dismissing its tortious interference claim, the trial judge misread Ideal Dairy Farms, Inc. to require that defendant's conduct must be fraudulent, dishonest, or illegal in order to be actionable. Plaintiff also contends that the judge failed to incorporate a "reasonableness" element into the "rules of the game" standard (i.e., that defendant's conduct should be nothing more than reasonably necessary to protect a legitimate business interest). Plaintiff argues that the use of forty- and sixty-mile radius restrictions was unreasonable under the circumstances and inconsistent with industry practices; the use of such restrictions effectively prevented plaintiff from attracting sufficient tenants to develop Sussex Commons; and defendant had no legitimate interest in preventing Sussex Commons from being developed. Plaintiff also contends that the means defendant used were unlawful in that defendant created a monopoly and engaged in extortion, money laundering, and perjury/false swearing. Again, we disagree.

"An action for tortious interference with a prospective business relation protects the right to pursue one's business . . . free from undue influence or molestation." Lamorte Burns & Co. v. Walters, 167 N.J. 285, 305 (2001) (citing Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 750 (1989)); see also Ideal Dairy Farms, Inc., supra, 282 N.J. Super. at 198. In order to succeed on such a claim, the "plaintiff must show that it had a reasonable expectation of economic advantage that was lost as a direct result of the defendants' malicious interference, and that it suffered losses thereby." Lamorte Burns, supra, 167 N.J. at 305-06 (citation omitted); see also Printing-Mart Morristown, supra, 116 N.J. at 751 52; Ideal Dairy Farms, Inc., supra, 282 N.J. Super. at 198 99.

The term "malicious" for purposes of tortious interference does not mean ill will, "rather, it means that harm was inflicted intentionally and without justification or excuse." Lamorte Burns, supra, 167 N.J. at 306 (citation omitted). Determination of malice is made on an individualized basis, based on a flexible standard, "viewing the defendant's actions in the context of the facts presented." Ibid. "[T]he relevant inquiry is whether the conduct was sanctioned by the 'rules of the game,' for where a plaintiff's loss of business is merely the incident of healthy competition, there is no compensable tort injury." Ibid. "The line is clearly drawn at conduct that is fraudulent, dishonest, or illegal. . ." Id. at 307. "[T]he gravaman of a claim for tortious interference with prospective advantage . . . is that the defendant's conduct was somehow legally wrongful. . . ." Ideal Dairy Farms, Inc., supra, 282 N.J. Super. at 204 (citation omitted).

Plaintiff cites no authority supporting its contention, nor does Ideal Dairy Farms, Inc. suggest, that the "rules of the game" standard in a tortious interference case should include a "reasonableness" element. We conclude that in the context of tortious interference the proper standard is whether the defendant's conduct was fraudulent, dishonest, or illegal or violated the "rules of the game."

"Although competition may constitute a justification [to a tortious interference claim], a defendant[-competitor] claiming a business-related excuse must justify not only its motive and purpose, but also the means used." Lamorte Burns, supra, 167 N.J. at 307 (citation omitted); see also Ideal Dairy Farms, Inc., supra, 282 N.J. Super. at 199. Unless a competitor employed "wrongful" means, it "is insulated from [a] tortious interference claim under the cloak of competitor's privilege." E Z Sockets, Inc. v. Brighton-Best Socket Screw Mfg. Inc., 307 N.J. Super. 546, 560 (Ch. Div. 1996), aff'd o.b., 307 N.J. Super. 438 (App. Div. 1997).

In this case, there is no dispute that defendant was motivated by its concern that competition from Sussex Commons would result in the loss of a percentage market share at Woodbury Common and The Crossings. Accordingly, the trial judge properly concluded that defendant had a legitimate business justification for its actions. The question, therefore, is whether the means defendant used radius clauses, lower rent incentives, lobbying the OSG, and providing financial support to the CRDRC were fraudulent, dishonest, or illegal or violated the "rules of the game."

Plaintiff cites no authority addressing tortious interference in the context of radius clauses. It also does not contend that radius clauses generally do not serve a legitimate business interest or are fraudulent, dishonest, illegal, or violate the "rules of the game." To the contrary, the evidence shows that radius clauses are common in the outlet mall industry, plaintiff used them in leases with prospective tenants for Sussex Commons, and plaintiff's principals have experience with fifty- or sixty mile radius clauses. Plaintiff merely argues that the radius clauses defendant used in this case are not reasonable; however, as we previously stated, reasonableness is not the standard in a tortious interference case.

With respect to the lower rent incentives defendant gave to tenants, we have noted in an analogous situation that a competitor may legally target a rival company by "aggressively cut[ting] costs below what may be necessary . . . in order to increase [its] market share, and there is no demonstrated restraint of trade, and no possibility of a later monopoly situation. . . ." Ideal Dairy Farms, Inc., supra, 282 N.J. Super. at 204 (internal quotation marks and citation omitted). Thus, "it is both reasonable and sound, as a matter of policy, to recognize that low-cost pricing which is neither predatory nor restrictive of competition is justified by the forces of competition and does not provide a basis for a claim of tortious interference." Id. at 204 05.

In Ideal Dairy Farms, Inc., supra, 282 N.J. Super. at 151 52, a dispute arose between the plaintiff-milk distributor and the defendant-milk processor after the plaintiff ended its business relationship with the defendant and the plaintiff became a dealer and distributor of another milk processor. In response, the defendant offered to sell milk to the plaintiff's customers at substantially lower prices, resulting in plaintiff's temporary loss of many of its customers to defendant. Id. at 152. Eventually, plaintiff was forced to sell to most of those customers at substantially lower prices. Ibid. We concluded that the plaintiff failed to establish the requisite malice for tortious interference. Id. at 200. Despite the existence of "rank animosity" and ill-will between the parties, we found that the defendant's conduct did not violate the "rules of the game," and defendant had a valid business justification for its conduct, namely the loss of sales when the plaintiff terminated the parties' business relationship. Id. at 200 01. The existence of apparent near-predatory pricing by the defendant did not alter our conclusion. see id. at 202 04. We emphasized that "[t]o hold otherwise would countenance an unnecessarily broad rule which could potentially interfere with legitimate competition." Id. at 205. Here, defendant sought to protect its market share at Woodbury Common and The Crossings. As in Ideal Dairy Farms, Inc., defendant, therefore, had a valid business justification for its actions.

As for hiring a lobbyist, there is no evidence that the lobbyist did anything to interfere with plaintiff's application before the OSG. Moreover, any lobbying effort, as well as defendant's involvement with the CRDRC, is permitted by the Noerr-Pennington doctrine, which states that pursuant to the right of petition protected by the Bill of Rights, commercial entities that lobby to influence government decision-making do not violate antitrust laws even if premised on the intent to eliminate competition. United Mine Workers, supra, 381 U.S. at 670, 85 S. Ct. at 1593, 14 L. Ed. 2d at 636; E.R.R. Presidents Conference, supra, 365 U.S. at 138, 81 S. Ct. at 530, 5 L. Ed. 2d at 471. Although the United States Supreme Court has declined to extend the Noerr-Pennington doctrine beyond antitrust law, lower federal courts have extended the doctrine to tortious interference cases. Snyder v. Am. Ass'n of Blood Banks, 144 N.J. 269, 295 (1996).

We decline to address plaintiff's monopoly contention, as there is no antitrust claim in this case. We also decline to address plaintiff's extortion and perjury/false-swearing contentions, as plaintiff did not raise these contentions below, and no exception applies. Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997) Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Besides, these contentions lack merit. There is no evidence that defendant obtained property by materially harming another, an element required to prove extortion, N.J.S.A. 2C:20-5, or made a false statement under oath or affirmation, an element required to prove perjury, N.J.S.A. 2C:28-1(a). Plaintiff's money laundering contention also lacks merit, as there is no evidence that defendant engaged in a transaction involving property which defendant knew or reasonably believed was derived from criminal activity, an element required to prove money laundering. N.J.S.A. 2C:21-25.

 

IV.

Plaintiff contends that the trial judge erred in dismissing its unfair competition claim by viewing the claim as limited to misappropriation of another's property. Although we agree, we nonetheless affirm the dismissal of this claim.

Our review of the dismissal of an action under Rule 4:6-2(e)for failure to state a claim "is limited to examining the legal sufficiency of the facts alleged on the face of the complaint." Printing Mart-Morristown, supra, 116 N.J. at 746 (citation omitted). We must "search[] the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned," and use "a generous and hospitable approach" to the plaintiff's allegations of fact. Ibid.

New Jersey courts have noted that, in essence, unfair competition is a business tort, generally consisting of the misappropriation of a business's property by another business. See, e.g., N.J. Optometric Ass'n v. Hillman-Kohan Eyeglasses, Inc., 144 N.J. Super. 411, 427 (Ch. Div. 1976), aff'd, 160 N.J. Super. 81 (App. Div. 1978). "The misappropriation usually takes the form of the 'palming off' or 'passing off' of another's goods as [one's] own. . . ." Id. at 428. However, the tort has also been described in broader terms: "There is no distinct cause of action for unfair competition. It is a general rubric which subsumes various other causes of action." C.R. Bard, Inc. v. Wordtronics Corp., 235 N.J. Super. 168, 172 (1989). A federal district court has referred to the "amorphous nature" of unfair competition that "makes for an unevenly developed and difficult area of jurisprudence." Coast Cities Truck Sales, Inc. v. Navistar Int'l Transp. Co., 912 F. Supp. 747, 786 (D.N.J. 1995). The common law tort of unfair competition historically has been considered a subspecies of the class of torts known as tortious interference with business or contractual relations. See Restatement (Third) of Unfair Competition 1 comment g (1995).

Competition "necessarily contemplates the probability of harm to the commercial relations of other participants in the market. . . . Liability is imposed only . . . in connection with harm resulting from particular methods of competition determined to be unfair." Id. 1 comment a. "The freedom to compete implies a right to induce prospective customers to do business with the actor rather than with the actor's competitor's." Ibid. While "[c]ertain recurring patterns of objectionable practices form the basis of . . . traditional categories of liability [for unfair competition,] . . . these [practices] do not fully exhaust the scope of . . . liability for unfair methods of competition. . . . "Id. 1 comment g. Nonetheless, "courts have generally been reluctant to interfere in the competitive process." Ibid.

The Restatement refers to "harm," not misappropriation, and it does not restrict that harm to misappropriation of business property. See id. 1. Thus, the trial judge in this case took too restrictive a view of what plaintiff had to allege in order to establish the tort of unfair competition. However, plaintiff concedes that its unfair competition claim is only a subspecies of its tortious interference claim and that both claims are grounded on the same facts. Because we have found that plaintiff's tortious interference claim was properly dismissed, we discern no reason to reverse the unfair competition claim. Accordingly, we affirm the dismissal of plaintiff's unfair competition claim but for reasons other than those relied upon by the trial judge. See Isko v. Planning Bd. of Livingston Twp., 51 N.J. 162, 175 (1968).

Affirmed.

1 Plaintiff does not appeal from that part of the February 25, 2004 order that dismissed the prima facie tort claim.

2 We shall hereinafter refer to the radius clause and site specific clause as "radius clause."

 

3 Plaintiff relied on hearsay evidence to support its threats and intimidation claim; however, such evidence cannot defeat summary judgment. R. 1:6-6; R. 4:46-5(a).

4 See United Mine Workers of Am. v. Pennington, 381 U.S. 657, 669-70, 85 S. Ct. 1585, 1593, 14 L. Ed. 2d 626, 636 (1965); E.R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 139-40, 81 S. Ct. 523, 530-31, 5 L. Ed. 2d 464, 472 (1961).