relies on the same factual allegations underlying Counts III and IV.
The amorphous nature of unfair competition makes for an unevenly developed and difficult area of jurisprudence. See Columbia Broadcasting System, Inc. v. Melody Recordings, Inc., 134 N.J. Super. 368, 375, 341 A.2d 348 (App. Div. 1975) ("Because the common law of unfair competition has evolved unevenly over the years, judicial applications in this tort field have not always been uniform or fixed."). While its boundaries are, at a minimum, uncertain, courts applying New Jersey common law principles agree that it seeks to espouse some baseline level of business fairness. Id. at 375-76; New Jersey Optometric Ass'n v. Hillman-Kohan Eyeglasses, Inc., 144 N.J. Super. 411, 427, 365 A.2d 956 (Ch. Div. 1976), aff'd, 160 N.J. Super. 81, 388 A.2d 1299 (1978). By incorporating other causes of action, including tortious interference, breach of duties of good faith and fair dealing, misappropriation and defamation, it applies a flexible and elastic standard of conduct in the commercial context. However, these same characteristics, when condensed in one general rubric, defy concrete standards by which to gauge an alleged instance of unfair competition. Compare C.R. Bard, Inc., 235 N.J. Super. 168 at 172, 561 A.2d 694 (applying standards for tortious interference to claim for unfair competition), with Columbia Broadcasting System, Inc., 134 N.J. Super. at 376 (applying unfair competition analysis in context of "palming off" claim); SK&F Co. v. Premo Pharmaceutical Laboratories, Inc., 625 F.2d 1055, 1062 (3d Cir. 1980) (finding two torts of unfair competition under New Jersey law: (1) palming off; and (2) unprivileged imitation).
In this case, plaintiff predicates its unfair competition claims on the same factual allegations forming the gravamen of its tortious interference and breach of contract claims, discussed in sections II(D) and II(E) of this Memorandum Opinion. See Second Amended Complaint PP 66-70. See also supra pages 39-42. While the elements for unfair competition are not entirely clear, it seems likely that New Jersey law would find unfair competition where there has been tortious interference, which requires a demonstration of malice, or upon a finding of breach of good faith and fair dealing. This observation derives from the standards for tortious interference, see supra pages 33-34, and breach of good faith, see supra pages 41-42, measured against the objective of unfair competition, which is to reinforce fair dealing and scrupulous conduct on the commercial level. See C.R. Bard, Inc., 235 N.J. Super. at 172-73; Columbia Broadcasting System, Inc., 134 N.J. Super. at 376 (quoting Sachs Radio Co. v. Sachs Quality Stores Corp., 39 N.J. Super. 70, 85, 120 A.2d 477 (App. Div. 1956)).
In this case, however, the Court has already determined that plaintiff's claims for tortious interference and breach of good faith and fair dealing do not withstand defendants' motions for summary judgment. It follows that they also fail to support Coast Cities' claim for unfair competition. Therefore, the Court will grant defendants' motions for summary judgment as to Count VII.
I. COUNT VIII: PUNITIVE DAMAGES UNDER 15 U.S.C. § 15
Section 15 of Title 15 provides for an award of punitive damages, in an amount up to three times the damages awarded plaintiff, for a violation of Title 15. See 15 U.S.C.A. § 15(a) (West Supp. 1995). In this case, it is clear that plaintiff is not entitled to punitive damages, as this Court has concluded that plaintiff has not suffered a cognizable antitrust injury, and has dismissed Counts I and II of the Second Amended Complaint. Accordingly, Count VIII of the Second Amended Complaint is dismissed.
J. DEFENDANTS' COUNTERCLAIMS AGAINST THOMAS AND DOROTHY GALLAGHER
Finally, defendants NFC and Harco seek summary judgment on Counts I and II of their counterclaims against Thomas Gallagher and Dorothy Gallagher. As noted above, the counterclaims allege that the counterclaim defendants
owe a liquidated sum of $ 127,890.31 on the Open Account. See supra page 12. The counterclaim defendants contend that NFC actually owes them money, because NFC has failed to credit the Coast Cities Open Account properly. They maintain that NFC is obligated to repurchase NITC parts remaining in Coast Cities' inventory, as well as a Navistar sign that Coast Cities was required to take down following termination of the dealership. See Gallagher Certif. P 125. Finally, the counterclaim defendants insist that NFC relies on information dated up to September 22, 1992, and that the amount then outstanding had not been offset by the credits noted above, because those credits did not arise until after termination of the Dealer Agreement.
Defendants rely primarily on the affidavit of Robert D. Bradley, an officer of NFC, and Open Account statements attached thereto, as support for its position that NFC is owed a total of $ 127,890.31 on the Open Account. Bradley notes that as of October 31, 1993, which is the close of NFC's fiscal year, the balance on Coast Cities' Open Account was $ 112,628.25. Bradley Aff. P 23 & Exh. C. Coast Cities had not operated as a dealer since termination of the Dealer Agreement in December, 1992, and therefore all charges and credits to the Open Account had been posted. The total as of September 30, 1993 was $ 115,316.07. See id. But there were two credits between September, 1993 and October, 1993 that brought the balance from $ 115,316.07 to $ 112,628.25. See id. The October, 1993 statement reflects a credit of $ 2490.22, which was a late charge rebate reducing the balance to $ 112,825.85. See id. Also deducted is an additional credit of $ 197.60. Id. Thus, the October, 1993 Open Account balance stands at $ 112,628.25.
Previously, on March 31, 1993, the Open Account balance was $ 98,794.69. Id. P24 & Exh. C. The balance grew to $ 130,743.09 as of April 30, 1993. Id. P 25 & Exh. C. The increase was due primarily to two entries on the Open Account, one for $ 21,226.27 and the other for $ 11,537.94, which were parts notes on which Coast Cities' obligations had matured. See id. Coast Cities had initially requested NFC to finance these parts purchases over time, rather than through the Open Account. Id. P 25.
Despite a disagreement in the bankruptcy proceeding between Coast Cities and NFC as to whether NFC would, and could, apply post-petition credits against pre-petition charges, see Coast Cities v. Navistar Internat'l Transp. Corp. et al., Bankr. No. 92-33121, Adv. No. 92-3682 (1992), NFC acknowledged in February, 1993 that post-petition credits due Coast Cities exceeded post-petition charges by $ 46,873.73. Id. PP 26-27 & Exh. C. Therefore, NFC directly remitted this amount to Coast Cities. Id. PP 26-27. The amount of $ 46,873.73 reflected two separate credits: (1) $ 15,262.06 constituted the amount by which post-petition credits exceeded post-petition charges in the Open Account; and (2) $ 31,611.67 was a dealer reserve account payable to Coast Cities on a quarterly basis, minus an unpaid balance on a computer note, extended warranty contracts sold by Coast Cities, and a limited liability charge on a repossessed truck. Id. P 27. NFC claims, however, that the $ 15,262.06 payment had already been credited to Coast Cities on the Open Account balance to reduce it to $ 98,794.69 as of March 31, 1993, but was not subsequently added to the Open Account. Id. Thus, NFC insists, the October, 1993 Open Account balance of $ 112,628.25 must be increased by $ 15,262.06, for a total of $ 127,890.31. Id.
The foregoing discussion renders meritless the counterclaim defendants' charge that NFC relies on information dated no later than September 22, 1992, and therefore fails to acknowledge post-termination credits. NFC has provided Open Account balance statements through the termination of the Dealer Agreement to the close of its 1992-1993 fiscal year, which is October, 1993. As to the counterclaim defendants' contention that other credits to Coast Cities' Open Account balance are outstanding, including the Navistar sign and inventory NFC must repurchase, they rely entirely on paragraph 125 of the certification of Douglas Gallagher, which states as follows:
Coast Cities maintains that NITC and/or NFC owes it money rather than owing money to the defendants. Coast Cities is scheduled to appear before the Bankruptcy Court on January 31, 1995, to determine the amounts which are due to it as a result of NFC's failure to credit its open account properly. In addition, NFC is required to repurchase parts which remain in inventory at Coast Cities and to repurchase the Navistar sign which Coast Cities was required to take down. All of these amounts far exceed any amount claimed by NFC.
Gallagher Certif. P 125. See also Counterclaim Defendants' Opposition to Summary Judgment at 58 (quoting Gallagher Certif. P 125).
These allegations directly contradict Douglas Gallagher's deposition testimony, as follows:
Q. Just so the record is clear, my understanding, and correct me if I'm wrong, is that the issue is not whether or not Coast Cities owes the money, the issue is whether the debtor owes pre-petition or post-petition?