Abrahams v. Young and Rubicam, Inc.

• Citation: 240 Conn. 300,692 A.2d 709
• Decision Date: 08 April 1997
• Docket Number: No. 15404,15404
• Court: Supreme Court of Connecticut
• Parties: Eric Anthony ABRAHAMS v. YOUNG AND RUBICAM, INC., et al.

Page 709

692 A.2d 709

240 Conn. 300

Eric Anthony ABRAHAMS v. YOUNG AND RUBICAM, INC., et al.

No. 15404.

Supreme Court of Connecticut.

Argued Dec. 10, 1996.

Decided April 8, 1997.

Ridgely W. Brown, with whom, on the brief, was Heather M. Brown, Darien, for appellant (plaintiff).

Stephen S. Madsen, pro hac vice, with whom were Steven D. Ecker and, on the brief, Matthew White, pro hac vice, for appellees (named defendant et al.).

Before CALLAHAN, C.J., and BORDEN, NORCOTT, KATZ and PETERS, JJ.

Opinion

BORDEN, Associate Justice.

The sole issue in this appeal, on certification from the United States Court of Appeals for the Second Circuit, is whether, under the circumstances presented herein, the plaintiff can maintain a claim under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes §§ 42-110a through 42-110q. The plaintiff, Eric Anthony Abrahams a Jamaican citizen, filed a ten count complaint in the United States District Court for the District of Connecticut, alleging, inter alia, that the named defendant Young & Rubicam, Inc. (Young & Rubicam), ¹ a New York advertising agency, had violated CUTPA by engaging in a scheme wherein it paid approximately one million dollars to a third party in the mistaken belief that the money would be used to bribe the plaintiff, a former Jamaican public official. ² The plaintiff sought compensation under CUTPA for the damage to his reputation that resulted when Young & Rubicam erroneously reported to Connecticut and federal authorities that the plaintiff had accepted the bribe.

The District Court dismissed the CUTPA claim, concluding that the acts constituting the alleged violation were not the proximate cause of the plaintiff's injuries. Abrahams v. Young & Rubicam, Inc., 793 F.Supp. 404, 407 (D.Conn.1992). The plaintiff appealed to the United States Court of Appeals for the Second Circuit, which asked this court to decide whether the plaintiff's allegations, if proven, would entitle him to relief under CUTPA. ³ Abrahams v. Young & Rubicam, Inc., 79 F.3d 234, 239 (2d Cir.1996). Pursuant to the applicable certification procedures; General Statutes § 51-199a; ⁴ we agreed to decide the issue. We agree with the District Court that, even if we were to assume without deciding that Young & Rubicam's scheme, as alleged by the plaintiff, constituted "unfair trade practices" within the meaning of CUTPA, that scheme was not the proximate cause of the plaintiff's injuries. Accordingly, we conclude that the facts in the plaintiff's complaint, even if true, cannot provide the basis for a CUTPA claim against Young & Rubicam and, therefore, we answer the certified questions in the negative.

The Court of Appeals' certification order included the following relevant facts from the plaintiff's complaint. "[The p]laintiff ... is a citizen and subject of Jamaica. From October 1980 to February 1989, [he] was an elected member of the Jamaican Parliament. In October 1980, [he] was also appointed Jamaican Minister of Tourism and Information and served in that post until about August 1984. In addition, [the plaintiff] has served as the Jamaican Director of Tourism and as a consultant on international tourism and marketing with the Organization of American States. Following his service as Minister of Tourism, [the plaintiff] acted as a consultant to various international businesses in Jamaica.

"Unbeknownst to [the plaintiff], a scheme was concocted by Robin Moore, a writer, and Arnold Foote, Jr., a Jamaican advertising executive. ⁵ Many activities in furtherance of this scheme took place within the state of Connecticut.

"[Moore and Foote] persuaded [Young & Rubicam] that bribes and kickbacks would have to be paid to Foote and to [the plaintiff] to influence the decisions of the Jamaican Tourist Board ... to ensure that [Young & Rubicam] would receive the lucrative [Jamaican Tourist Board] advertising account. During the course of the scheme, [Young & Rubicam] paid close to one million dollars ... in bribes to Moore and Foote. However, no money was ever paid to [the plaintiff], who neither demanded money nor was in a position to influence the award of the ... contract.

"In October 1989, the scheme was publicly exposed by a federal indictment ... returned by a grand jury in Hartford, Connecticut. On February 9, 1990, [Young & Rubicam] pled guilty to knowingly and intentionally conspiring to pay bribes to influence the decision of the [Jamaican Tourist Board] in awarding its advertising account. Because [Young & Rubicam] and other defendants falsely implicated [the plaintiff] in their scheme, [the plaintiff] was also indicted. ⁶ However, this indictment was later dismissed.

"News regarding the criminal indictment of [Young & Rubicam], including false statements by a number of defendants that depicted [the plaintiff] as a criminal, was widely published. As a result, [the plaintiff's] professional reputation was damaged, and his consulting business destroyed. His personal reputation was also severely impaired, and he suffered severe emotional distress, humiliation, and depression."

In order to address whether these facts, if proven, would form the basis for a CUTPA claim, we first set forth the basic elements of such an action. CUTPA provides that "[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." General Statutes § 42-110b (a). In order to enforce this prohibition, CUTPA provides a private cause of action to "[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice...." General Statutes § 42-110g (a); see generally Fink v. Golenbock, 238 Conn. 183, 212-13, 680 A.2d 1243 (1996).

Thus, in order to prevail in a CUTPA action, a plaintiff must establish both that the defendant has engaged in a prohibited act and that, "as a result of" this act, the plaintiff suffered an injury. The language "as a result of" requires a showing that the prohibited act was the proximate cause of a harm to the plaintiff. See generally Haesche v. Kissner, 229 Conn. 213, 223-24, 640 A.2d 89 (1994). With regard to the requisite causal element, it is axiomatic that proximate cause is "[a]n actual cause that is a substantial factor in the resulting harm...." Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 606, 662 A.2d 753 (1995). The question to be asked in ascertaining whether proximate cause exists is "whether the harm which occurred was of the same general nature as the foreseeable risk" created by the defendant's act. (Internal quotation marks omitted.) Doe v. Manheimer, 212 Conn. 748, 758, 563 A.2d 699 (1989). Proximate cause does not exist merely because there is cause in fact. "Philosophically, cause in fact is limitless; but for the creation of this world, no crime or injury would ever have occurred.... Lines must be drawn determining how far down the causal continuum individuals will be held liable for the consequences of their actions." (Citations omitted; internal quotation marks omitted.) Stewart v. Federated Dept. Stores, Inc., supra, at 605-606, 662 A.2d 753, citing W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 41, p. 264, and § 42, p. 273. "This line is labeled 'proximate cause.' " Suarez v. Sordo, 43 Conn.App. 756, 769, 685 A.2d 1144 (1996).

We assume, without deciding, that the bribery scheme in which Young & Rubicam engaged is an act of the type proscribed by CUTPA. ⁷ We conclude, however, that this assumed violation was not the proximate cause of the injuries to the plaintiff's reputation and business. "Although the issue of causation generally is a question reserved for the trier of fact ... the issue becomes one of law when the mind of a fair and reasonable person could reach only one conclusion, and summary judgment may be granted based on a failure to establish causation." 1 R. Langer, J. Morgan & D. Belt, Connecticut Unfair Trade Practices Act (1994) § 6.10, p. 231; see also Mather v. Griffin Hospital, 207 Conn. 125, 130, 540 A.2d 666 (1988).

In this case, Young & Rubicam's bribery scheme did not, in and of itself, directly harm the plaintiff. The plaintiff has not alleged, nor can it be reasonably inferred from the plaintiff's allegations, that Young & Rubicam either intended or could have foreseen that, as a result of its attempt to bribe the plaintiff, he would be injured by an erroneous indictment for bribery or by publication of the incorrect accusations therein. ⁸ In other words, Young & Rubicam's conduct in attempting to bribe the plaintiff was not "a substantial factor reasonably foreseeable as likely to bring about [the] plaintiff's indictment [on false charges] and his resulting damages. [The p]laintiff was neither the intended target nor victim of [Young & Rubicam's] illegal activities." Abrahams v. Young & Rubicam, Inc., supra, 793 F. [240 Conn. 308] Supp. at 406. It is true that the plaintiff would not have been harmed but for the existence of the bribery scheme. As explained previously, however, mere "but for" causation is not sufficient to support a CUTPA claim.

Rather, the proximate cause of the plaintiff's injuries was the confession that Young & Rubicam gave to state and federal authorities after its scheme was discovered, in which it implicated the plaintiff as having accepted bribes. ⁹ It was the confession, not the underlying bribery scheme, that directly and predictably led to the indictment against the plaintiff that damaged his reputation. As the Court of Appeals observed, the plaintiff was injured not by the bribery scheme itself, but "by the fallout from the scheme's exposure." Abrahams v. Young & Rubicam, Inc., supra, 79 F.3d at 239.

The plaintiff has never asserted that Young & Rubicam's act of confessing was itself an unfair act or practice that violated CUTPA. ¹⁰ Thus, on the one hand, the practice that assumedly did violate...