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Wolfson-Verrichia Group, Inc., et al v. Metro Commercial Real Estate

March 28, 2013


The opinion of the court was delivered by: Goldberg, J.

Memorandum Opinion

This case involves claims against a real estate broker who is alleged to have improperly used its position to convince several retailers to reject a real estate developer's proposed commercial locations.

Plaintiffs, Wolfson-Verrichia Group, Inc. and its affiliates (collectively "Wolfson-Verrichia"), develop, own and operate shopping centers in Pennsylvania and New Jersey. Plaintiffs filed this action on October 21, 2008, asserting claims for breach of the duty to act in good faith, misrepresentation, business disparagement, intentional interference with prospective contractual relations, federal and New Jersey RICO violations, and false advertising. (Am. Compl., Doc. No. 74.) They assert that Defendants, Metro Commercial Real Estate, Inc., and its principals and affiliates (collectively "Metro") misused Metro's position as a real estate broker for national retail chains to interfere with Plaintiffs' prospective contracts with those retailers, and convince the retailers to instead open stores in shopping centers in which Metro had a financial interest. As part of this scheme, Plaintiffs allege that Metro conspired with Defendants Hughes Development Group, LLC ("Hughes")*fn1 and Newman Development Group, LLC ("Newman Development"), two commercial real estate companies that, like Wolfson-Verrichia, develop and market shopping centers in Pennsylvania and New Jersey.

Defendants have moved for summary judgment, arguing that Plaintiffs' evidence is insufficient to support a finding that their conduct was the proximate cause of any retailer's decision to decline to open a store in Wolfson-Verrichia's shopping centers.*fn2 Plaintiffs disagree, and base their opposition in substantial part on the opinions offered by their expert, Kenneth Leonard, who has opined that Defendants' improper conduct caused retailers to reject the business projects promoted by Plaintiffs. Defendants have moved to exclude Leonard's opinions, and consequently, we will consider that motion together with their motion for summary judgment. As set forth below, we find that Leonard's causation opinions are inadmissible, and that Plaintiffs have failed to produce sufficient evidence to survive summary judgment.

I.Factual Background*fn3

Wolfson-Verrichia is in the business of developing retail shopping centers. Generally, this involves identifying market areas in need of development, finding an appropriate property within the market area, and working with various parties to develop the property into a retail shopping center. Wolfson-Verrichia finds potential tenants, seeks zoning, development, traffic and environmental approvals from the appropriate governmental agencies, and finances and acquires the property. (Verrichia Dep., 7/1/10, pp. 59-60.) According to Wolfson-Verrichia, finding potential tenants is particularly crucial to the development process, and construction or zoning plans will not proceed until enough retailers have signed non-binding commitments. (Id.; V. Compl. ¶ 19.)

While developers like Wolfson-Verrichia are trying to attract retailers to their sites, national retail chains with long-term plans for expansion are also seeking out opportunities for new stores in underserved market areas. (See, e.g., Case Dep., pp. 11-13.) The retailers involved here that were represented by Metro-Target, Giant Foods ("Giant") and Lowe's- testified to using substantially identical methods to locate sites for their stores. These retailers all had internal real estate departments tasked with evaluating potential opportunities for expansion. (See id.; Robinson Dep., pp. 13-16; Perez-Daple Dep., pp. 20-22.) When a particular site was first brought to the attention of the real estate department, an initial analysis was normally performed to determine whether it fit the retailers' criteria for expansion, including consideration of square footage, price, demographics, traffic and proximity to existing locations and competitors. (Robinson Dep., p. 16; Perez-Daple Dep., pp. 22, 83-86.) If a site met the initial criteria, a more thorough investigation was undertaken. (Mahowald Dep., pp. 13-14; Perez-Daple Dep., p. 38.) For many stores, like Giant, approval from the real estate committee was required before the process moved past the initial investigation stage. (Id., p. 21.)

After the initial investigation, the retailers normally performed in-person visits to the potential site, and conducted further analyses of the area's demographics, potential sales, geography and other retail in the area. (See, e.g., Robinson Dep., p. 177; Perez-Daple Dep., p. 38.) Based upon this assessment, the real estate department decided whether it was interested in the site and presented its recommendation to the company's real estate committee. (Perez-Daple Dep., pp. 22, 37-39.) If the committee gave final approval, preliminary lease negotiations with the site's developer normally began, ideally culminating in an agreement to lease the space and open a store in the development. (Robinson Dep., 5/11/10, p. 22; Perez-Daple Dep., pp. 38-39.) Some retailers, like Target and Giant, would sometimes send the developer a non-binding "Letter of Intent," advising the developer that it intended to sign as a tenant in the development. (See Case Dep., pp. 104-105; Robinson Dep., pp. 231-33; but see Perez-Daple Dep., p. 37 (Lowe's does not send Letters of Intent).)

In addition to relying upon their internal real estate departments, many retailers use real estate brokers like Metro to help them "keep up with market conditions and potential site availability." (Case Dep., p. 13.)*fn4 Brokers like Metro also serve as "a point of contact for land owners and potential developers" and help "screen all the opportunities" available in a particular market. (Id.; see also Chadwick Dep., pp. 23-24, 30.)

Plaintiffs' claims relate to their attempts to develop two retail shopping centers-the Maiden Creek project near Reading, Pennsylvania, and the Woolwich project near Deptford, New Jersey-between 2002 and 2007. The retailers Wolfson-Verrichia pursued for these developments included Target, Giant and Lowe's, which employed Metro as their real estate broker in both Pennsylvania and New Jersey. Each of these retailers considered opening a store at one of Plaintiffs' developments, as well as other competing developments in the area. Ultimately, none of the retailers decided to become tenants, and the Maiden Creek and Woolwich projects remain undeveloped.

A.Plaintiffs' Discussions With Target

Wolfson-Verrichia's talks with Target began in early 2003. (Pls. SOF ¶¶ 22, 69.) In May of that year, Metro sent Target a letter outlining the development opportunities in the Reading area, including Wolfson-Verrichia's Maiden Creek site. (Wolson Decl., Ex. 14.) Shortly thereafter, Thomas Verrichia from Wolfson-Verrichia pitched the Maiden Creek site to representatives from Target and Metro at the International Council of Shopping Centers ("ICSC") in Las Vegas. (Pls. SOF ¶ 24; Verrichia Dep., 7/1/10, pp. 94-98.) Verrichia presented information to Target and Metro about both Maiden Creek and Woolwich, but Steve Niggeman from Metro told him after the meeting that Target was focused on expansion in other market areas. Niggeman relayed that Target believed it was "premature" to consider a store near Maiden Creek, and that the market around the Woolwich project was "too light." (Verrichia Dep., 7/1/10, pp. 66, 96-98, 233.)

Nonetheless, over the next eighteen months Wolfson-Verrichia continued to pursue Target as a tenant by providing periodic verbal and written updates on its developments to Metro and directly to Target. (Verrichia Dep. 7/1/10, pp. 143-146, 148.) Target gave serious consideration to opening a store at Maiden Creek. (See Mahowald Dep., pp. 18-19.) Its Director of Real Estate, Laurie Berkwitz, visited the site twice in 2004 while on a tour of developments in that area. (Id.) During her second trip, which occurred in October 2004, Berkwitz also visited a location in nearby Muhlenberg (the "Berks" site), which was not being actively developed at the time. (Wolson Decl., Ex. 17.) Berkwitz felt that Berks was in a good location for a retail shopping center, and, following the trip, she reported to Metro that she thought the Berks location "would be a great corner for a big development," but was "one the fence" about the Maiden Creek property, which was "a little too remote," although it had "new housing growth and exiting housing stock" nearby. (Wolson Decl., Ex. 19.)

Although Target was considering the Maiden Creek and Berks projects, Verrichia testified that Metro consistently told him the opposite-that Target was not ready to consider opening a store in the area. (Verrichia Dep., 7/1/10, pp. 130-32, 236-37.) Despite Metro's representations, Verrichia continued to provide Target and Metro with updates about Maiden Creek throughout 2005 and 2006. (See, e.g., Wolson Decl., Exs. 20, 47-49.) Eventually, Defendant Newman Development began efforts to develop a shopping center at the Berks site, and Target decided to open a store there rather than at Maiden Creek.

According to Laurie Berkwitz, she and members of Target's senior management felt that Berks "was busier, there [were] more people around it, [and] there was more retail around it." (Mahowald Dep., p. 22.) On the other hand, they felt that Maiden Creek was "too remote" and "while it may have promise in the future and had some nice housing, it wasn't a move for Target at that particular moment." (Id.) Importantly, Berkwitz testified that Target reached this conclusion based upon the analyses performed by its market research and analysis team, who also toured the area. (Id., pp. 22-23.) She emphasized that none of the Defendants-neither Metro, Hughes, nor Newman Development-influenced her recommendation, or Target's decision to reject the Maiden Creek project. (Id.)

Wolfson-Verrichia also pursued Target as a tenant for its Woolwich project in New Jersey. Thomas Verrichia presented that project along with the Maiden Creek project to Target at the May 2003 ICSC Conference. As with the Maiden Creek project, Metro told Wolfson- Verrichia that Target was uninterested in opening a store in the area near Woolwich. (Verrichia Dep., 7/1/10, pp. 66, 233.) Metro continued to deliver this message to Plaintiffs over the next eighteen months. (Id., pp. 236-37.) However, Verrichia was told otherwise by a representative from Lowe's at a February 2005 lunch meeting. At that meeting, which also included a representative from Metro, Verrichia was told that Lowe's understood Target was considering two projects near Woolwich-the Mantua and Logan projects. (Id.) Afterwards, WolfsonVerrichia began sending information about the Woolwich project directly to Target's real estate department rather than relying on Metro. (See, e.g., Wolson Decl., Ex. 22.)

Wolfson-Verrichia continued discussions with Target and Metro regarding the Woolwich project through 2005, and in February 2006, Wolfson-Verrichia and Metro discussed entering a commission agreement that would entitle Metro to a commission if Target agreed to sign a lease at Woolwich. (Wolson Decl., Ex. 23.) Although this agreement was never consummated, Metro arranged for representatives from Target to tour the Woolwich site and meet with Verrichia in March 2006. (Verrichia Dep., 7/1/10, pp. 326-28.) In anticipation of the meeting, Verrichia sent Target's representative Chris Case information about Woolwich. (Wolson Decl., Ex. 23.) Case responded that the $24.4 million price proposal included in Verrichia's submission was "about $19 [million] away" from what Target would pay. (Id., Ex. 25.)

Case testified that he never seriously considered Verrichia's offer, both because of the price and "because of the location, size and proximity of Wal-Mart on the site." (Case. Dep., p. 113.) Further, Case had heard from several retailers, including Lowe's, that Woolwich could potentially have issues obtaining permits for sewer and water to the development. (Id., p. 109.) Based upon its real estate department's analysis, in June 2007 Target decided to open a retail store at Logan and sent Defendant Newman Development a Letter of Intent. (See id., p. 105.)

Even after Target had sent the Letter of Intent to Newman Development, WolfsonVerrichia continued to send Target information about Woolwich. On December 3, 2007, Case told Steve Wolfson that Target was "moving forward on Logan" and did not "have an interest in pursuing [the] project in Woolwich." (Wolson Decl., Ex. 27.) After Wolfson asked for another opportunity to market the idea, Case became even more emphatic and told Wolfson that Target "wouldn't commit to Woolwich if we had a free deal." (Id.)

Ultimately, Target withdrew its Letter of Intent in 2008, and decided not to open a store at either Logan or Woolwich because of concerns about the declining economy. (Case Dep., pp. 104-105; Friedman Dep., p. 70.) Case testified that Target's decisions were based upon its internal analyses and not on any advice from Metro, Hughes or Newman Development. (Id.)

B.Plaintiffs' Discussions With Giant

Wolfson-Verrichia also had contact with Metro in its pursuit of Giant as a potential tenant at the Maiden Creek project. Giant's plans for expansion included opening a store in the Reading market area in 2008, and it had discussions with Metro about both the Maiden Creek and Berks projects. (Robinson Dep., pp. 47-49.) Giant initially preferred Maiden Creek, and by February 2006 had signed a Letter of Intent to open a store there. (Id., p. 230-33.) However, Giant continued to monitor developments in the Reading area, and, by the end of 2006, began to explore other options, including Newman Development's Berks project. (Id.) On February 14, 2007, Giant withdrew its Letter of Intent, and informed Wolfson-Verrichia that it did not intend to open a store at Maiden Creek. (Kotch Decl., Ex. 29.) Giant explained that it was concerned that Maiden Creek would not open in 2008, particularly in light of Wolfson-Verrichia's inability to attract certain co-tenants to the project. (Id.) Giant asked Wolfson-Verrichia to keep them informed of any progress, specifically in finding co-tenants. (Id.) One day later, on ...

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