M id A tlantic R eal E state J ournal C ommercial R eal E state L aw
Real Estate Journal — August 26 - September 15, 2016 — 5A
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M id A tlantic
nsell Grimm & Aaron, PC attorneys have filed a federal antitrust com- Monopolization of the gas station convenience store market in the Borough of Eatontown, NJ Ansell Grimm & Aaron, PC attorneys file a federal antitrust complaint A antitrust action in accord with the Hanover decision.
of choice and options in the marketplace. Robust compe- tition benefits businesses and consumers alike. The market for gas station convenience stores is not different from any other and it is essential that competitors be allowed to enter the marketplace free from the predatory practices of would- be monopolists. The action is predicated on a recent decision from the United States Court of Appeals for the Third Circuit, Hanover 3201 Realty, LLC. v. Village Supermarkets, Inc., 806 F.3d 162 (3d Cir. 2015), which up- held a developer’s antitrust claims arising out of the sham litigations and other anticom- petitive acts undertaken by an objector -- akin to those actions allegedly taken by Defendants here -- to unlawfully block de- velopment. In fact, Plaintiffs expressly provided Defendants with notice that their anticom- petitive conduct would result in the now pending federal
cifically, Plaintiffs allege that Defendants engaged in sham litigations and frivolous and pre-textual appeals of plan- ning board, governing body, and State agency actions to prevent the development of competing gas station conve- nience stores thereby preserv- ing their monopoly position. By intentionally delaying and seeking to prevent the de- velopment and construction of the Projects, including Plain- tiffs’ gas station convenience stores, Defendants would ef- fectively eliminate new com- petitors in the geographic area providing the goods and services associated with gas station convenience stores. The elimination of fair, robust competition is alleged to be the sole animating factor behind Defendants’ abusive illegal actions. Further, it is alleged that as a result of the series of sham petitions and legal actions filed by Defendants, Plaintiffs have been forced
to pay thousands of dollars toward application fees, ex- pert fees, and attorney fees to pursue land use approvals and have suffered lost profits and other costs associated with the delay in construction resulting from the Defendants’ willful and abusive tactics. Numerous developers face similar, frivolous opposition when seeking land use approv- als for their projects -- compel- ling them to incur significant expense and suffer intermi- nable delay. While it usually is best to amicably resolve ob- jector concerns, the Hanover decision opens a new path to challenge sham objectors in de- fense of our developers’ rights. Joshua S. Bauchner, Esq. is a partner with the law firm of Ansell Grimm & Aaron, PC, where he is Co-Chair of the Litigation Department and a member of the Bankruptcy Depart- ment. He may be reached at (973) 247-9000. n
The Complaint alleges De- fendants engaged in an ongo- ing illegal scheme designed to injure competition in the market for gas station conve- nience stores in the greater Eatontown geographic area and to interfere with Fidelity’s site development agreement with aWawa convenience store with a gasoline dispensing ca- pacity, a Chick-Fil-A fast food restaurant, and an office/retail building with a bank, and QuickChek’s development of a fresh marketer convenience store with a gasoline dispens- ing capacity (the “Projects”). The Complaint further alleges that Defendants sought to preserve their monopoly posi- tion in the greater Eatontown marketplace through a series of calculated and intentional acts designed to impede Plain- tiffs’ lawful plans to develop a directly competitive gas sta- tion convenience store. Spe-
plaint assert- i ng c l a ims arising from the attempt- ed monopoli- zation of the gas station convenience store market in the Bor-
Joshua Bauchner
ough of Eatontown, New Jer- sey. The action was filed in the United States District Court for the District of New Jersey captioned Fidelity Eatontown, LLC and QuickChek Corpora- tion v. Excellency Enterprise, LLC, Kennedy Auto Service, Inc., and Gas Of Eatontown, Inc., Docket No. 3:16-cv-03899- FLW-LHG. The essence of any produc- tive market economy is full and fair competition in the marketplace. Competition drives innovation, techno- logical progress and growth
Also Inside:
Jessica Zolotorofe, Esq., Ansell Grimm&Aaron, PC
Joseph Falcon, III Barley Snyder
Jeffrey L. Silberman, Esq. Kaplin Stewart Meloff Reiter & Stein, P.C.
Douglas M. Hershman, Esq. Cooch and Taylor, P.A.
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