Antitrust Law Daily Wrap Up, ANTITRUST—S.D.N.Y.: Casino-resort developers lose monopolization claims, (Nov 5, 2014)

By Greg Hammond, J.D.

Seven casino-resort development companies were unable to proceed with monopolization and conspiracy to monopolize claims concerning the racing and casino gaming industry located in the Catskills region of New York. Rather, the federal district court in New York City denied the developers’ motion for reconsideration of a September 2013 order granting the defendants’ motions to dismiss and denying the developers’ motion for leave to file a second amended complaint (SAC) (Concord Associates, L.P. v. Entertainment Properties Trust, November 3, 2014, Ramos, E.).

The plaintiffs, including Concord Associates, L.P., are attempting to build a casino-resort complex in the Catskills region of New York, containing a luxury hotel, name entertainment, championship golf, harness racing, and casino gaming. However, they filed suit against Entertainment Properties Trust and other companies, alleging a conspiracy to monopolize regarding the racing and casino gaming industry in that area. The court subsequently granted two motions to dismiss, and denied the plaintiffs’ request for leave to file an SAC. The plaintiffs appealed the dismissal to the Second Circuit Court of Appeals, and moved for reconsideration of the district court’s ruling.

In support of their motion for reconsideration, the developers argued that the court precluded them from moving to file a proposed SAC, by failing to hold a pre-motion conference as required by the court’s rules. However, “[t]his notion is remarkable for being so demonstrably wrong,” the court stated. Specifically, it determined that the record clearly demonstrates the court scheduled a conference at which the request for leave to amend was discussed; the developers cited to the conference in their motion; the conference was held; and the plaintiffs unequivocally withdrew their request for leave to amend, noting their preference to wait for the Court’s opinion before considering whether to make the motion.

The court also noted that it partially dismissed the developers’ claims because the identified geographic market—comprised of a 100-mile radius from the Town of Thompson—was too narrow and inherently implausible, because it excluded casino resorts in Connecticut and Atlantic City. Noting that the SAC would not correct that deficiency, the court determined that the motion for reconsideration could be denied on the alternative basis that the proposed amended pleading is futile.

The case number is 12 Civ. 1667 (ER).

Attorneys: James I. Serota, Scott A. Martin, Roy Taub (Greenberg Traurig LLP) for Plaintiffs. Y. David Scharf, Kristin T. Roy, and Gayle E. Pollack (Morrison Cohen LLP) for Entertainment Properties Trust.

Companies: Concord Associates, L.P.; Entertainment Properties Trust

Cases: Antitrust NewYorkNews