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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-XX-XXXXXXX
                                                              20-NOV-2018
                                                              10:04 AM



           IN THE SUPREME COURT OF THE STATE OF HAWAII

                                ---o0o---


 DANE S. FIELD, TRUSTEE OF THE BANKRUPTCY ESTATE OF ALOHA SPORTS
              INC., Petitioner/Plaintiff-Appellant,

                                    vs.

 THE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, AN UNINCORPORATED
           ASSOCIATION, Respondent/Defendant-Appellee.


                            SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-XX-XXXXXXX; CIV NO. 06-1-1832)

                           NOVEMBER 20, 2018

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                OPINION OF THE COURT BY POLLACK, J.

          This case arises out of the uncompleted sale of one

business to another.     The plaintiff alleges that the defendant

engaged in an unfair method of competition to terminate the

transaction in violation of Hawaii antitrust law.          At issue in

this case is what a plaintiff must demonstrate to withstand

summary judgment on a claim for an unfair method of competition
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under Hawaii Revised Statutes (HRS) Chapter 480.           In particular,

we address the plaintiff’s requirement of showing that the

defendant’s conduct would negatively affect competition or harm

fair competition.    Consistent with our case law, we conclude

that to raise an issue of material fact as to the nature of

competition requirement of an unfair method of competition claim

following the close of discovery, a plaintiff must demonstrate

that the defendant’s alleged anticompetitive conduct could

negatively affect competition but need not prove that the

defendant in fact harmed competition.        Further, we reaffirm that

in order to withstand summary judgment, a plaintiff may

generally describe the relevant market without resort to expert

testimony and the plaintiff need not be a competitor of or in

competition with the defendant.

            I.       BACKGROUND AND PROCEDURAL HISTORY

                        A.    Factual Background

          The National Collegiate Athletic Association (NCAA) is

a non-profit, unincorporated voluntary association of

approximately 1,200 colleges and universities, athletic

conferences, and sports organizations.         The NCAA regulates and

controls Division I-A postseason college football bowl games in

which qualifying NCAA Division I-A members may participate.

Independent businesses (bowl sponsoring agencies) organize and

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promote the bowls subject to annual recertification1 by the NCAA

Football Certification Subcommittee (the Subcommittee).             The

Subcommittee is composed of representatives from NCAA member

schools, as well as NCAA staff that serve as non-voting

liaisons.

            Aloha Sports, Inc.2 (Aloha Sports) is a former bowl

sponsoring agency that produced Division I-A NCAA postseason

college football bowl games.        Aloha Sports organized, produced,

and promoted the NCAA-certified Aloha Bowl in Honolulu from 1982

to 2000.    In 1998, Aloha Sports established and received NCAA

certification of the Oahu Bowl and began to promote the two bowl

games together.     For various reasons unrelated to this appeal,

Aloha Sports relocated both bowls to the continental United

States following the 2000 season.         In the 2001 season, Aloha

Sports sought and received NCAA recertification of the Aloha

Bowl as the San Francisco Bowl and of the Oahu Bowl as the



      1
            The requirements for certification listed in the 2002-03 NCAA
Bowl Handbook include, inter alia, exceeding a minimum amount of ticket
sales, the implementation of a gross receipt sharing policy under which the
institutions participating in the bowl each receive a minimum payout of
$750,000, the performance of financial audits, the submission of a letter of
credit, and compliance with certification application dates, fees, and
procedures.
     2
            On December 27, 2017, the ICA issued an order granting Aloha
Sports, Inc.’s motion to substitute Dane S. Field, Trustee of the Bankruptcy
Estate of Aloha Sports, Inc., for Aloha Sports, Inc. as plaintiff-appellant.



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Seattle Bowl.   The Seattle Bowl was also recertified by the NCAA

and presented by Aloha Sports during the 2002 season.

          Several concerns arose with the management of the 2002

Seattle Bowl, including failures to timely submit a letter of

credit to the NCAA and to make outstanding payments to

participating teams and vendors.         Subsequently, Aloha Sports

decided to sell its business.       In February 2003, Aloha Sports

signed a letter of intent to transfer ownership and control of

its business to Pro Sports & Entertainment, Inc. (Pro Sports)

for the sum of $2,031,000.      The sale was contingent upon NCAA

recertification of the Seattle Bowl for the 2003 season.            On

April 1, 2003, Aloha Sports submitted an application for

recertification of the Seattle Bowl for the 2003 season to the

NCAA.

          In April 2003, the Subcommittee met over four days to

make certification decisions for the 2003 season.           At an unknown

date, an NCAA internal memorandum titled “Seattle Bowl Issues”

was created that provided information regarding the pending

Seattle Bowl recertification.       The memorandum stated that

ongoing issues existed with the management of the Seattle Bowl,

including a submission of an inaccurate audit report, a failure

to pay the required certification fee, and a late letter of

credit.   The memorandum also noted the intended sale of Aloha

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Sports to Pro Sports, including that the sale was contingent

upon recertification of the 2003 Seattle Bowl, and listed

outstanding debts from the 2002 Seattle Bowl as “Feller Debts”

in apparent reference to the president of Pro Sports, Paul

Feller.   Finally, under a section titled “Penalties” it stated

“1) Withhold certification one year.        2) Impose financial

penalty - fine up to 50% of gross receipts.”

          Paul Feller attended the Subcommittee certification

meeting as a potential purchaser of Aloha Sports, along with

James Haugh, president of Aloha Sports and executive director of

the Seattle Bowl.    Terry Daw, owner of Aloha Sports, also

participated by phone during the portions of the meeting related

to the Seattle Bowl.     In a discussion regarding the Seattle

Bowl’s recertification, Pro Sports presented the Subcommittee

with information regarding Pro Sports’ plan for addressing

outstanding issues from the 2002 Seattle Bowl, as well as the

company’s financial capacity and relevant experience with event

management and promotion.      During that meeting, Dennis Poppe, an

NCAA staff liaison to the Subcommittee, expressed concerns about

Daw’s prior management of the Seattle Bowl and sought assurance

that Daw would not be involved after a transfer of Aloha Sports

to Pro Sports.



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           In a second meeting, Poppe and members of the

Subcommittee informed Feller, Haugh, and Daw3 that the

Subcommittee had decided to decertify the Seattle Bowl.             Haugh

was then asked to leave the room, and Feller was privately

informed by Poppe and the Subcommittee members that Pro Sports

could independently submit an application to certify the Seattle

Bowl for the 2004 season.

           The Subcommittee’s decision to decertify the Seattle

Bowl was formally announced the following day.4           Following the

announcement, Aloha Sports requested that the NCAA instead place

the Seattle Bowl on one-year probation as it had done with two

other bowl games that had failed to submit timely letters of

credit.   The NCAA rejected Aloha Sports’ request, and the

Seattle Bowl was decertified as announced.

           At the time, the NCAA’s Postseason Handbook contained

conflicting provisions concerning the consequences of a

sponsoring agency’s nonfulfillment of certification

requirements.     A new provision added in the 2002-03 Handbook

stated, “If a sponsoring agency fails to meet the certification

     3
           Daw again participated in the meeting by phone.
      4
            An NCAA press release regarding the Subcommittee’s decisions for
the 2003 season bowls provided: “The committee did not recertify the Seattle
Bowl, due to financial issues and failure to adhere to administrative
requirements.”



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requirements, it shall be placed on probation for one year.                 If

the sponsoring agency has not complied with the requirements by

the end of the probationary period, the bowl shall lose its

certification.”5     (Emphasis added.)      The provision was also

included nearly verbatim in two locations on the 2003 bowl

recertification application form and in a November 18, 2002

memorandum sent to all executive directors of bowl games.              The

Handbook also retained a provision from previous years, however,

which stated as follows:

           If the management of a certified game fails to comply with
           Bylaw 30.9, the requirement for an audited financial report
           for the immediate past game, or the NCAA’s approved
           policies and procedures, the subcommittee has the option to
           withhold certification for the postseason bowl game for one
           year or fine it a percentage of its gross receipts, not to
           exceed 50 percent, from the contest involved in the
           noncompliance, with the amount to be determined by it and
           approved by the Division I Championships/Competition
           Cabinet.

           As a result of the NCAA’s decertification of the

Seattle Bowl, the sale of Aloha Sports to Pro Sports was not

completed and the 2003 Seattle Bowl was not held.            On October

20, 2005, Aloha Sports filed a complaint and demand for jury

trial against the NCAA in the Circuit Court of the First Circuit

(circuit court).


      5
            In the version of the Handbook released the following year, the
provision was revised to state, “If a sponsoring agency fails to meet the
certification requirements, it may either be put on probation for one year or
be decertified for the next bowl season.” (Emphasis added)



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                   B.    2005-2013 Court Proceedings

           In its second amended complaint, Aloha Sports alleged

four causes of action, including multiple unfair method of

competition violations under HRS § 480-2 (1993 & Supp. 2002),6

tortious interference with prospective economic advantage, and

two breach of contract claims.7        Aloha Sports contended that the

NCAA violated HRS § 480-2’s prohibition on unfair methods of

competition by, inter alia, “refusing to permit a transfer of

ownership of Plaintiff’s NCAA Certified Postseason Football Bowl

Games without good cause” (UMOC claim).8

     6
           HRS § 480-2 (2008) provides in relevant part as follows:

           (a) Unfair methods of competition and unfair or deceptive
           acts or practices in the conduct of any trade or commerce
           are unlawful.

           . . .

           (e) Any person may bring an action based on unfair methods
           of competition declared unlawful by this section.
     7
           The Honorable Karen S.S. Ahn presided.
      8
            The other grounds alleged in the second amended complaint to be
unfair methods of competition in violation of HRS § 480-2 were as follows:
(1) requiring Aloha Sports to pay $75,000 or 75% of gross bowl revenues in
equal proportion to participating teams; (2) arbitrarily penalizing
sponsoring agencies for not meeting the payout requirements; (3)
discriminatorily withdrawing certification of the San Francisco Bowl,
refusing to recertify the Aloha Bowl, and decertifying the Seattle Bowl
despite substantial compliance with the requirements for maintaining
certification and receiving recertification; (4) imposing upon Aloha Sports
unreasonable and arbitrary standards of conduct, and (5) terminating and
refusing to renew Aloha Sports’ San Francisco and Seattle Bowls without good
cause and in violation of the NCAA’s terms and standards applicable to all
bowls. These grounds are largely not relevant to this appeal, and all
references to Aloha Sports’ UMOC claim refer to only the alleged HRS § 480-2
violation in Subsection 23(f) of the second amended complaint based on the

                                                             (continued . . .)
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             The NCAA filed a motion to dismiss the second amended

complaint with prejudice, contending, among other things, that

Aloha Sports did not plead sufficient facts to support its UMOC

claim.     On February 26, 2008, the court entered an order

granting in part and denying in part the NCAA’s motion,

dismissing with prejudice the UMOC claim for the reason cited by

the NCAA and dismissing several of Aloha Sports’ other claims

for relief.     (Order Dismissing UMOC Claim).

             The remaining claims proceeded to jury trial in

September 2011.9      On September 8, 2011, at a hearing on a motion

in limine prior to trial, Aloha Sports indicated that the

intentional interference with prospective economic advantage

claim was the sole grounds upon which it wished to proceed, as

the company did not believe it was likely to prevail on its

remaining claims (including the alleged violations of HRS § 480-

2 that had not been previously dismissed).10


(. . . continued)

NCAA’s purported blocking of Aloha Sports’ transfer of ownership to Pro
Sports.
      9
            The Honorable Karl K. Sakamoto presided over the jury trial, as
well as a preceding motion granting Aloha Sports leave to file a third
amended complaint excluding any claims related to the Aloha/San Francisco
Bowl. The third amended complaint otherwise was identical to the second
amended complaint.
      10
             The transcript of the September 8, 2011 hearing reflects the
following:


                                                              (continued . . .)
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            On September 19, 2011, the jury returned a verdict in

favor of the NCAA on Aloha Sports’ claim for tortious

interference with prospective business advantage.            On January

12, 2012, the court entered final judgment in favor of the NCAA

as to all claims.     The final judgment stated that the UMOC claim

(. . . continued)

            [ALOHA SPORTS]: Correct. Just for the record, your Honor,
            the sole claim on which we’re proceeding we can abandon all
            other claims which may have been pled. The sole claim in
            which we’re proceeding is intentional interference with
            prospective business advantage. That's it. So all the
            antitrust claims, the franchise claims, the claim under
            480-2 all -- all are abandoned.

            . . .

            [ALOHA SPORTS]: Excuse me. We don’t think on the record we
            can satisfy the test that the Hawaii Supreme Court
            established with the Davis case, which converted 480-2
            which was a redundant antitrust statute, but I don't think
            we can do that, so that’s-

            THE COURT: Right. It makes it very, very difficult to
            satisfy proof especially without an expert.

            . . .

            [NCAA]: So it’s clear that the theory of contract based on
            the handbook is also out?

            [ALOHA SPORTS]: Correct. The singular claims prospective
            advantage.

            THE COURT: Right. That’s --

            [NCAA]: So we’re down to one cause of action interference
            with respective [sic] economic advantage.

            THE COURT: That’s correct.

            [NCAA]: And everything else is dismissed.

            THE COURT: That’s correct.



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was dismissed with prejudice pursuant to the February 26, 2008

order.     It further stated that claims in the second amended

complaint that had been dismissed by the “2/28/08 Dismissal

Order”11 but repeated in the third amended complaint were equally

dismissed, and that Aloha Sports’ “remaining” HRS ' 480-2 claims

in the third amended complaint were dismissed with prejudice

pursuant to Aloha Sports’ September 8, 2011 oral motion.

             After unsuccessfully moving the court to vacate the

final judgment and grant a new trial, Aloha Sports filed a

notice of appeal from the final judgment and other orders in the

case, including specifically from the Order Dismissing UMOC

Claim.12

             On October 30, 2013, the ICA issued a memorandum

opinion.13    As to the dismissal of the UMOC claim, the ICA found

that a factual basis for the claim could be discerned from the

facts alleged in the second amended complaint.           Specifically,

the ICA pointed to the complaint’s allegations that the “NCAA


     11
            It appears that section 3 of the Final Judgment mistakenly refers
to the “2/26/08 Dismissal Order” as the “2/28/08 Dismissal Order.”
     12
            Aloha Sports also appealed from the Order Granting in Part and
Denying in Part Defendant The National Collegiate Athletic Association’s
Motion for Attorneys’ Fees and Costs, Filed January 31, 2012 (Attorney’s Fee
Order).
     13
            The ICA’s memorandum opinion can be found at Aloha Sports Inc. v.
NCAA, No. CAAP-XX-XXXXXXX, 2013 WL 5823893 (Haw. App. Oct. 30, 2013).



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knew about the pending sale to Pro Sports and the significance

of certification to the pending transaction,” and that “the NCAA

disrupted the transaction by encouraging Pro Sports to abandon

the deal with Aloha and apply for a bowl game independent of

Aloha.”   The ICA held that, if true, these alleged facts would

be sufficient to establish that the NCAA employed an unfair

method of competition.      Accordingly, the ICA vacated the Order

Dismissing UMOC Claim and the circuit court’s January 12, 2012

final judgment and remanded the case to the circuit court for

further proceedings.14

               C.    Circuit Court Proceedings on Remand

            On remand, the NCAA filed a motion for judgment on the

pleadings, or in the alternative, a motion for summary judgment

on the UMOC claim (Motion for Summary Judgment).15           The NCAA

argued that the UMOC claim was barred by collateral estoppel

because Aloha Sports relied on the same allegations underlying

the UMOC claim to support its claim for tortious interference

with prospective business advantage at the jury trial and the

jury had decided these factual issues in the NCAA’s favor.              The


      14
            The ICA also vacated the Attorney’s Fee Order and affirmed all
other circuit court rulings at issue.
     15
            The Honorable Karl K. Sakamoto also presided over the circuit
court proceedings on remand.



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NCAA contended that, because the facts were actually litigated,

finally decided, and essential to the final judgment, Aloha

Sports should be estopped from relitigating them on remand.

          The NCAA also maintained that Aloha Sports was

judicially estopped from pursuing the UMOC claim because at the

motion in limine hearing on September 8, 2011, Aloha Sports

abandoned all claims other than the claim for tortious

interference with prospective business advantage and conceded it

could not meet the burden of establishing a violation of HRS §

480-2.   The NCAA asserted that (1) Aloha Sports’ present

position was factually incompatible with its prior position; (2)

the prior inconsistent position had been accepted by the court;

and (3) permitting Aloha Sports to continue to pursue the UMOC

claim granted Aloha Sports an unfair advantage.

          As to the merits of the UMOC claim, the NCAA argued

that there was no dispute that the NCAA had legitimate business

reasons not to certify the 2003 Seattle Bowl, including the 2002

Seattle Bowl’s untimely letter of credit and lack of payment to

teams and local vendors.      The NCAA maintained that discovery had

closed and Aloha Sports could not present any evidence that

decertification was intended to induce Pro Sports to forgo the

contemplated purchase of Aloha Sports.         Thus, the NCAA argued,

Aloha Sports could not prove that it was harmed as a result of

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actions by the NCAA that negatively affected competition.             The

NCAA also contended that it was entitled to summary judgment

because Aloha Sports had not presented any facts demonstrating

an anti-competitive impact on the bowl game market as a result

of the NCAA’s alleged actions.

          In its memorandum in opposition, Aloha Sports

responded that the UMOC claim was not barred by collateral

estoppel because the jury made no specific findings of fact when

it decided in the NCAA’s favor on the claim for interference

with prospective economic advantage.        Additionally, Aloha Sports

asserted, the elements of an unfair method of competition claim

are distinct from those of a claim for interference with

prospective economic advantage.       Further, Aloha Sports argued,

no final judgment existed for purposes of collateral estoppel

because it had been vacated by the ICA decision.           The UMOC claim

was also not barred by judicial estoppel, Aloha Sports

contended, because the claim had already been dismissed in

February 26, 2008.    Therefore, Aloha Sports maintained, the

claim could not have been abandoned or conceded at the September

8, 2011 hearing.

          Aloha Sports also argued that it presented sufficient

evidence demonstrating that the NCAA denied recertification of

the 2003 Seattle Bowl in order to induce Pro Sports to abandon

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its intent to purchase Aloha Sports.         Aloha Sports contended

that, contrary to the NCAA’s assertion, it did not need to prove

that its injury resulted from actions by the NCAA that were

harmful to competition to withstand summary judgment.

           On June 9, 2015, the circuit court issued an order

granting summary judgment to the NCAA on the UMOC claim (Order

Granting Summary Judgment).16       The court held that Aloha Sports

was barred by waiver and judicial estoppel because Aloha Sports

had implicitly surrendered the UMOC claim by its statements at

the September 8, 2011 hearing.        The circuit court reasoned that

the UMOC claim required proof of an additional element under

this court’s precedents and thus would have been more difficult

to prevail upon than the alleged HRS § 480-2 violations that

Aloha Sports expressly abandoned.         Aloha Sports therefore

impliedly conceded that it was unable to prove the UMOC claim

when it voluntarily dismissed its other HRS § 480-2 claims, the

court concluded.

           The circuit court also held that Aloha Sports was

collaterally estopped from proceeding on its UMOC claim.             The


     16
            The full title of the court’s order is “Order Granting Defendant
The National Collegiate Athletic Association’s Motion For Judgment On The
Pleadings, Or In The Alternative, For Summary Judgment On The Sole Remaining
Claim For Unfair Competition Alleged In Plaintiff’s Third Amended Complaint,
Filed May 27, 2011, Filed September 25, 2014 [Civ. No. 06-1-1832-10 (June 9,
2015)].”


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court stated that, because Aloha Sports had not alleged one of

the specific violations of HRS § 480-2(a) identified by statute,

it fell to the court to identify the elements that must be

satisfied to establish an unfair method of competition in this

case.    The court determined that the alleged unfair method of

competition--the NCAA’s interference with Aloha Sports’ transfer

to Pro Sports--was essentially a claim for tortious interference

with prospective business advantage, and HRS § 480-2(a)

therefore incorporated the elements of a tortious interference

claim.   Accordingly, the circuit court found that proving facts

establishing tortious interference was a prerequisite to proving

that the NCAA derivatively violated HRS § 480-2.           Because the

jury had entered a verdict in favor of the NCAA on the tortious

interference claim and a final judgment had been issued, the

court concluded that Aloha Sports could not now proceed on an

unfair method of competition claim based on the same alleged

conduct.

           The court further held that the NCAA had successfully

demonstrated that it acted with a legitimate business purpose in

denying the recertification of the 2003 Seattle Bowl, that Aloha

Sports did not submit any evidence showing that the NCAA acted

in an anticompetitive manner, and that Aloha Sports did not

demonstrate that its injury resulted from the NCAA’s alleged

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anticompetitive conduct.       Final judgment was entered in favor of

the NCAA on August 11, 2015,17 from which Aloha Sports appealed

to the ICA.

                         D.    Second ICA Appeal

            On October 30, 2017, the ICA issued a Summary

Disposition Order affirming the circuit court’s grant of summary

judgment in favor of the NCAA.18        The ICA held that Aloha Sports

failed to present any evidence that the NCAA’s alleged conduct

affected competition, which was needed to satisfy the nature of

competition requirement of a claim for an unfair method of

competition in violation of HRS § 480-2(a).           Specifically, the

ICA held that Aloha Sports failed to (1) specify the relevant

market; (2) provide evidence of the anticompetitive effect of

the NCAA’s conduct on that market; and (3) demonstrate how Aloha

Sports, a bowl-sponsoring agency, was in competition with the

NCAA.     Further, the ICA stated that, in order to prove an

anticompetitive effect, it was not sufficient for Aloha Sports

to prove harm to its individual business.          Rather, Aloha Sports


     17
            The final judgment also included an order granting in part and
denying in part a motion for reinstatement of the Attorney’s Fee Order, filed
August 4, 2015 (Order to Reinstate Attorney’s Fee Order).
     18
            The ICA’s SDO can be found at Aloha Sports Inc. v. The NCAA, NO.
CAAP-XX-XXXXXXX, 2017 WL 4890131 (Haw. App. Oct. 30, 2017), as corrected
(Jan. 11, 2018).



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was required to demonstrate an adverse impact to competitive

conditions generally within the commercial field in which it was

engaged.

            Additionally, the ICA held that the NCAA’s conduct was

not an unfair competitive act because the 2001-02 Handbook

allowed for decertification of a non-compliant bowl, and the

NCAA demonstrated that Aloha Sports had not complied with

certification requirements pertaining to the 2002 Seattle Bowl.19

            Based on its holdings regarding the UMOC claim, the

ICA did not reach the other reasons cited by the circuit court

for granting summary judgment--waiver, judicial estoppel, and

collateral estoppel.      The ICA thus affirmed the circuit court’s

ruling granting NCAA summary judgment on the UMOC claim.20

            Aloha Sports timely filed an application for writ of

certiorari from the ICA’s January 24, 2018 Judgment on Appeal,

which this court granted.




     19
            The ICA specifically cited the 2001-02 Handbook in its SDO, which
did not contain the conflicting provision added in the 2002-03 Handbook that
stated nonfulfillment of certification requirements would be punished by
probation. See supra text accompanying note 5.
     20
            The ICA also affirmed the “Judgment” entered on August 11, 2015;
the Order to Reinstate Attorney’s Fees Order; and the Attorney’s Fee Order.



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                     II.          STANDARD OF REVIEW

            This court reviews a trial court’s grant or denial of

summary judgment de novo.          Anastasi v. Fid. Nat’l Title Ins.

Co., 137 Hawaii 104, 112, 366 P.3d 160, 168 (2016) (citing

Bremer v. Weeks, 104 Hawaii 43, 51, 85 P.3d 150, 158 (2004)).

                           III.       DISCUSSION

            On certiorari, Aloha Sports contends that the ICA

erred in the evidence it required Aloha Sports to present to

withstand summary judgment on its UMOC claim.           In light of our

resolution of this issue, we also address the circuit court’s

alternative grounds for granting summary judgment, including

that Aloha Sports’ claim was waived and that Aloha Sports was

judicially and collaterally estopped from proceeding upon this

claim.21   We evaluate each issue in light of the legal standard

for summary judgment:22

            [S]ummary judgment is appropriate if . . . there is no
            genuine issue as to any material fact and that the moving

     21
            Aloha Sports also challenges on certiorari the ICA’s affirmation
of the circuit court’s Order to Reinstate Attorney’s Fees Order and the
Attorney’s Fee Order.
     22
            In this case, the record indicates that the NCAA’s motion was
filed after the close of discovery. It is noted that the movant’s burden is
generally greater when a party seeks summary judgment before discovery has
concluded. See Ralston v. Yim, 129 Hawai‘i 46, 48, 61, 292 P.3d 1276, 1278,
1291 (2013) (“[I]n general, a summary judgment movant cannot merely point to
the non-moving party's lack of evidence to support its initial burden of
production if discovery has not concluded.” (citing French v. Hawaii Pizza
Hut, Inc., 105 Hawai‘i 462, 472, 99 P.3d 1046, 1056 (2004))).



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              party is entitled to judgment as a matter of law. A fact
              is material if proof of that fact would have the effect of
              establishing or refuting one of the essential elements of a
              cause of action or defense asserted by the parties. The
              evidence must be viewed in the light most favorable to the
              non-moving party.

Anastasi v. Fid. Nat’l Title Ins. Co., 137 Hawaii 104, 112, 366

P.3d 160, 168 (2016) (quoting Omerod v. Heirs of Kaheananui, 116

Hawai‘i 239, 254–55, 172 P.3d 983, 998–99 (2007)).

A.         Evidence Necessary to Withstand Summary Judgment on an HRS
                § 480-2 Unfair Method of Competition Claim

              Hawaii's antitrust law, codified in HRS Chapter 480,

includes a general prohibition at HRS § 480-2(a) stating that

unfair methods of competition in the conduct of any trade or

commerce are unlawful.23          HRS § 480-13 (1993 & Supp. 2002)24 in

      23
              HRS § 480-2 (2008) in relevant part provides as follows:

              (a)   Unfair methods of competition and unfair or deceptive
              acts or practices in the conduct of any trade or commerce
              are unlawful.

              . . .

              (e)   Any person may bring an action based on unfair
              methods of competition declared unlawful by this section.
      24
              HRS § 480–13 provides in relevant part as follows:

              (a) Except as provided in subsections (b) and (c), any person who
              is injured in the person's business or property by reason of
              anything forbidden or declared unlawful by this chapter:

                      (1) May sue for damages sustained by the person and, if the
                      judgment is for the plaintiff, the plaintiff shall be
                      awarded a sum not less than $1,000 or threefold damages by
                      the plaintiff sustained, whichever sum is the greater . . .
                      .

(Emphasis added.)


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turn establishes a private right of action to seek recovery for

damages flowing from a party’s HRS Chapter 480 violation.

            To recover under HRS § 480-13(a) for an unfair method

of competition violation, a plaintiff must prove: (1) a

violation of HRS Chapter 480; (2) an injury to the plaintiff’s

business or property that flows from the defendant’s conduct

that negatively affects competition or harms fair competition;

and (3) proof of damages.        Gurrobat v. HTH Corp., 133 Hawaii 1,

21, 323 P.3d 792, 812 (2014).         The second element has two parts.

Id.   First, a plaintiff is required to demonstrate “an injury in

fact to his or her ‘business or property.’”            Id.   Second, a

plaintiff is required to show the “nature of the competition.”

Id.   This latter requirement is met by demonstrating how the

defendant’s conduct negatively affects competition or harms fair

competition.     Id. at 22-23, 323 P.3d at 813-14.

            We thus consider if Aloha Sports demonstrated a

question of material fact as to the elements of its UMOC claim

and whether the ICA imposed evidentiary requirements beyond what

was required under our law.25

      25
            In evaluating a motion for summary judgment, we apply a burden-
shifting framework under which the moving party bears the initial burden of
demonstrating that no genuine issue of material fact exists with respect to
the essential elements of the claim and that the undisputed facts entitle the
party to judgment as a matter of law. See Gurrobat v. HTH Corp., 133 Hawai‘i
1, 14, 323 P.3d 792, 805 (2014). Where, as here, the non-movant bears the

                                                              (continued . . .)
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          1.    First Element: Violation of HRS Chapter 480

            The first element for recovery under HRS § 480-13(a)

is proof of an HRS Chapter 480 violation.          HRS § 480-2(a) does

not define unfair methods of competition, although a number of

other statutes cross-reference the provision and specify that

particular practices are per se violations of the prohibition.

See, e.g., HRS § 480D-4(a) (2008); HRS § 481B-4 (2008).             This

court has recognized that the statutorily enumerated violations

are not an exhaustive catalogue of conduct that violates HRS §

480-2, as “[t]here is no limit to human inventiveness in this

field.”   Cieri v. Leticia Query Realty, Inc., 80 Hawai‘i 54, 61,

905 P.2d 29, 36 (1995) (quoting H. Stand. Comm. Rep. No. 55, in

1965 House Journal, at 538).




(. . . continued)

burden of proof at trial, the movant may meet its initial burden by either
“(1) presenting evidence negating an element of the non-movant's claim, or
(2) demonstrating that the non-movant will be unable to carry his or her
burden of proof at trial.” Ralston, 129 Hawai‘i at 60-61, 292 P.3d at 1290-91
(citing French, 105 Hawai‘i at 470-72, 99 P.3d at 1054-56)). “Only once the
moving party has satisfied its initial burden of production does the burden
shift to the non-moving party to show specific facts that present a genuine
issue for trial.” Gurrobat, 133 Hawai‘i at 14, 323 P.3d at 805.

            In this case, the circuit court found that the NCAA had met its
initial burden and that Aloha Sports then failed to present sufficient
evidence to raise a genuine issue of material fact. Because Aloha Sports’
arguments before this court focus on the sufficiency of the evidence it
presented, the circuit court’s finding that the NCAA met its initial burden
appears to be uncontested.



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           The circuit court in this case stated that, because

the unfair method of competition alleged here is not

specifically defined by statute, it fell to the court to

determine the appropriate elements of a HRS § 480-2(a) violation

in this context.     The court reasoned that the alleged offending

conduct was essentially a claim for tortious interference with

prospective business advantage, and thus it was necessary to

prove the elements of the tort in order to prove a HRS § 480-

2(a) violation.

           Under our precedents, however, the evaluation of

whether particular, non-statutorily-enumerated conduct is unfair

is simply a question of fact that does not require incorporating

the elements of an analogous claim.         See Robert’s Hawaii School

Bus, Inc. v. Laupahoehoe Transp. Co., 91 Hawaii 224, 239, 982

P.2d 853, 868 (1999), superseded by statute on other grounds.

“[C]ompetitive conduct ‘is unfair when it offends established

public policy and when the practice is immoral, unethical,

oppressive, unscrupulous or substantially injurious to

consumers.’”26    Id. at 255 n.34, 982 P.2d at 884 n.34 (quoting


     26
            Although the standard to prove a HRS § 480-2 violation and the
elements to establish a tortious interference with economic advantage may
seem similar in that the latter requires that a plaintiff intended to either
pursue “an improper objective of harming the plaintiff or use[] wrongful
means,” Hawaii Med. Ass'n v. Hawaii Med. Serv. Ass'n, Inc., 113 Hawai‘i 77,
116, 148 P.3d 1179, 1218 (2006) (quoting Omega Envtl., Inc. v. Gilbarco,

                                                             (continued . . .)
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State ex rel. Bronster v. U.S. Steel Corp., 82 Hawaii 32, 51,

919 P.2d 294, 313 (1996)).       The circuit court thus erred in

finding that it was necessary for Aloha Sports to prove a claim

for tortious interference with prospective business advantage in

order to demonstrate a HRS § 480-2(a) violation.

            In its memorandum opinion addressing Aloha Sports’

first appeal, the ICA ruled that Aloha Sports sufficiently

alleged facts to discern a claim for which relief could be

granted by alleging that the NCAA knew about Aloha Sports’

pending sale to Pro Sports and that the NCAA disrupted the

transaction by encouraging Pro Sports to abandon the deal with

Aloha Sports and apply for a bowl game independently of Aloha

Sports.

            On remand, Aloha Sports substantiated its allegations

of the NCAA’s knowledge of the pending sale by providing

evidence that the Subcommittee received information on Pro

Sports’ qualifications to organize and promote the 2003 Seattle

Bowl and to pay the 2002 Seattle Bowl debts.           Additionally,

Aloha Sports submitted to the court the NCAA’s internal “Seattle

Bowl Issues” memorandum that stated that the sale of Aloha

(. . . continued)

Inc., 127 F.3d 1157, 1166 (9th Cir. 1997)), the elements of the two claims
are not identical. See infra, § III.C.



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Sports to Pro Sports was contingent upon recertification of the

Seattle Bowl.   Aloha Sports also submitted evidence that the

NCAA expressed concern that Aloha Sports’ Terry Daw would remain

involved after the sale of Aloha Sports to Pro Sports, and that

immediately after announcing the decertification of the Seattle

Bowl, the NCAA’s Dennis Poppe and the Subcommittee privately

informed Feller, CEO of Pro Sports, that it could reapply

independently for certification of the Seattle Bowl the

following year.    Aloha Sports also provided evidence raising a

question of fact as to whether the NCAA arbitrarily failed to

apply its requirement for a one-year probation period prior to

decertification of a bowl that was established for the 2002-03

season.

          This evidence, at a minimum, gives rise to a question

of material fact as to whether the NCAA unfairly decertified the

2003 Seattle Bowl in order to disrupt the transaction between

Aloha Sports and Pro Sports, which a jury could consider

immoral, unethical, oppressive, unscrupulous or substantially

injurious to consumers.     Thus, Aloha Sports demonstrated a

factual dispute as to a violation of HRS § 480-2(a) by virtue of

an unfair method of competition.         The circuit court therefore

erred in concluding that summary judgment was warranted on this

basis.

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          2.    Second Element: Injury & Nature of Competition

 a. Actual Harm to Competition Not Required to Withstand Summary
                             Judgment

               To fulfill the second element of an unfair method of

competition violation, a plaintiff must (a) demonstrate an

injury in fact to one’s business and (b) demonstrate how a

defendant’s conduct negatively affects competition or harms fair

competition.      Gurrobat, 133 Hawaii at 21, 323 P.3d at 812.

               As to the injury requirement, the injury in fact must

flow from the anticompetitive conduct.            Id. at 23, 323 P.3d at

814.    Aloha Sports meets the injury requirement because it

presented evidence that as a result of the NCAA’s allegedly

unfair decertification of the 2003 Seattle Bowl--the NCAA’s

allegedly anticompetitive conduct--Aloha Sports was unable to

complete its sale to Pro Sports.

               Turning to the nature of the competition requirement,

Aloha Sports contends that the ICA erred by holding that Aloha

Sports was required to provide evidence of anticompetitive

effects within that market to withstand summary judgment.                In

response, the NCAA maintains that the ICA correctly applied

Hawaii and federal precedent to find that Aloha Sports did not

meet its burden as to the nature of competition requirement.




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            We recently addressed a plaintiff’s burden when

opposing summary judgment on an unfair method of competition

claim in Gurrobat v. HTH Corporation, 133 Hawaii 1, 323 P.3d 792

(2014).    In that case, service employees brought suit against

the operators of hotels (hotels) for distributing to non-service

employees a portion of the service charges it collected from

customers without informing customers of the practice, in

contravention of HRS § 481B-14.         Id. at 16-17, 323 P.3d at 807-

08.   We found that a genuine issue of material fact existed as

to the nature of competition requirement based upon evidence

that the hotels’ non-compliance with the service-charge law

allowed the hotels to lower their overall prices and thereby

obtain an “unfair and illegal business advantage” over compliant

competitors.     Id. at 22, 323 P.3d at 813.        Showing that the

conduct of the hotels enabled them to create incentives for

customers to choose their services over compliant competitorsʻ

services was sufficient to demonstrate that their conduct could

have negatively affected competition and thus defend against

summary judgment.      Id.; see Hawaii Med. Ass'n v. Hawaii Med.

Serv. Ass'n, Inc., 113 Hawaii 77, 113, 148 P.3d 1179, 1215

(2006).    It was not necessary for the plaintiffs to prove at a

summary judgment proceeding that the hotels’ conduct had in fact

harmed competition.       See Gurrobat, 133 Hawaii at 22, 323 P.3d at
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813.    Further, although the plaintiffs in Gurrobat offered the

evidence through expert testimony, we noted that expert

testimony was not necessary to create a genuine issue of

material fact regarding harm to competition sufficient to

withstand summary judgment.         See id.

             In this case, Aloha Sports set forth how the NCAA’s

alleged anti-competitive conduct would negatively affect

competition.      Aloha Sports contends that the NCAA’s

decertification of the 2003 Seattle Bowl incentivized Pro Sports

to abandon its agreement with Aloha Sports and to independently

seek certification of a future Seattle Bowl through the NCAA.

Cf. Gurrobat, 133 Hawaii at 22, 323 P.3d at 813 (“plaintiffs may

prove how a defendant’s conduct negatively affects competition

by showing that defendant’s conduct enables the defendant to

create incentives for customers to purchase banquet services

from the defendant instead of competitors . . . .”); Hawaii Med.

Ass'n, 113 Hawaii at 113, 148 P.3d at 1215 (holding that

plaintiffs may demonstrate harm to competition by showing the

defendant engaged in “acts or practices that . . . create

incentives for patients to look elsewhere”).             Aloha Sports

provided evidence that the NCAA no longer wished to deal with

Aloha Sports’ management and that immediately after its

decertification of the 2003 Seattle Bowl, the NCAA privately
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informed Pro Sports that it could apply independently for

certification of the Seattle Bowl in 2004.         If true, the NCAA’s

conduct could be construed as wielding its power to ensure that

it only deals with its staff’s preferred applicants rather than

evaluating certification decisions in compliance with its

established rules and procedures.

          It is reasonable to infer from this evidence that, as

argued by Aloha Sports, the NCAA’s allegedly arbitrary

certification decision could negatively affect competition by

(1) restricting the transfer of ownership of bowl games

contingent upon recertification; (2) leading to lower prices for

the sale of bowl sponsoring agencies because of uncertainty as

to whether a bowl will gain recertification; and (3) acting as a

restriction on output that would result in a loss of financial

benefits to schools and consumers who would have otherwise

participated in a given bowl.       [W]e must view all of the

evidence and the inferences drawn therefrom[] in the light most

favorable to the party opposing the motion.”          Anastasi, 137

Hawai‘i at 112, 366 P.3d at 168 (emphasis added) (quoting Omerod,

116 Hawai‘i at 254–55, 172 P.3d at 998–99).

          Taken together in the light most favorable to Aloha

Sports, Aloha Sports has presented evidence raising a genuine

issue of material fact as to whether the NCAA’s conduct could

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negatively affect competition.        Thus, the ICA erred in holding

that “Aloha [Sports] has failed to provide any evidence that the

NCAA’s conduct negatively affected competition,” and that Aloha

Sports did not raise an issue of material fact as to the “nature

of competition” to substantiate its UMOC claim.

           Based on the foregoing, we conclude that Aloha Sports

raised a genuine issue of material fact as to the second element

of a HRS § 480-13(a) claim: an injury to the plaintiff’s

business or property that flows from the defendant’s conduct

that negatively affects competition or harms fair competition.27

  b.   Proof of Relevant Market, Harm to Market as a Whole, and
   Competition with Defendant Not Required to Withstand Summary
                             Judgment

           In its analysis regarding the nature of competition

requirement, the ICA held that to withstand summary judgment,

Aloha Sports needed to specify the relevant market and

demonstrate that the alleged conduct affected that market beyond

an adverse effect on Aloha Sports’ business.           The ICA also

concluded that Aloha Sports was required to but failed to



     27
            The third element is proof of damages. Gurrobat, 133 Hawaii at
23, 323 P.3d at 814. Neither the circuit court in granting summary judgment
nor the ICA in affirming the circuit court based its decision on the absence
of a showing of proof of damages. Accordingly, since this issue is
undisputed and was not relied upon by the circuit court, we conclude that
Aloha Sports raised a disputed fact as to this element also.



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demonstrate that it was a competitor of or in competition with

the NCAA.

            First, to defend against summary judgment, it is

sufficient for a plaintiff to offer proof of the general market

at issue without resort to expert testimony.          In Gurrobat, the

plaintiffs contended that the defendants’ asserted unfair method

of competition would reduce fair competition “in the market for

hotels, restaurants, and banquet service providers”--those

generally in the field of competition with the defendant.             133

Hawaii at 22, 323 P.3d at 813.      We did not require the

plaintiffs to define the market with great specificity in order

to raise a genuine issue of material fact.         Here, Aloha Sports

presented sufficient evidence to discern the affected market by

describing the NCAA’s certification process and the underlying

competition among bowl sponsoring agencies vying for NCAA

certification of bowl games, the member institutions that

participate in the bowls, and the consumers that attend the

bowls.

            Second, the ICA overstated the nature of competition

requirement on summary judgment as necessitating proof that the

defendant’s conduct in fact negatively affected the market

beyond Aloha Sports’ own injury.         As stated in Gurrobat,

demonstrating actual negative effects on or harm to fair

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competition in the relevant market is not required.28            133 Hawaii

at 22, 323 P.3d at 813.

           Finally, the ICA noted that Aloha Sports failed to

demonstrate that it was in competition with the NCAA.             It is

well settled, however, that plaintiffs need not be competitors

or in competition with defendants to establish or recover from

an unfair method of competition in violation of HRS § 480-2(a).

Davis v. Four Seasons Hotel Ltd., 122 Hawaii 423, 435, 228 P.3d

303, 315 (2010); Hawaii Med. Ass'n, 113 Hawaii at 110, 148 P.3d

at 1212; see also HRS § 480-2(e) (“Any person may bring an

action based on unfair methods of competition declared unlawful

by this section.” (emphasis added)).

           Thus, the ICA erred in affirming summary judgment on

the bases that (1) Aloha Sports “failed to specify the relevant

market,” (2) Aloha Sports did not demonstrate harm to the

market, and (3) Aloha Sports did not demonstrate that it was a

competitor of or in competition with the NCAA.




     28
            Additionally, the U.S. Supreme Court has held that under federal
anti-trust law, harm to a single business may suffice to establish an anti-
trust violation. Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207,
213 (1959) (“As such [a boycott by a combination of manufactures and dealers]
is not to be tolerated merely because the victim is just one merchant whose
business is so small that his destruction makes little difference to the
economy.”).



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                   B.    Waiver and Judicial Estoppel

            On remand, the circuit court held that Aloha Sports

was barred by waiver and judicial estoppel from asserting its

UMOC claim based on Aloha Sports’ statement at a pre-trial

hearing that it was solely preceding on its claim for

interference with prospective business advantage and was

abandoning all other claims.29

            A waiver does not occur when there is no right in

existence to be waived.       See Coon v. City & Cty. of Honolulu, 98

Hawaii 233, 261, 47 P.3d 348, 376 (2002) (“To constitute a

waiver, there must have existed a right claimed to have been

waived and the waiving party must have had knowledge, actual or

constructive, of the existence of such a right at the time of

the purported waiver.” (citations omitted)).           Here, the circuit

court had dismissed Aloha Sports’ UMOC claim with prejudice

three years prior to the 2011 pre-trial hearing when the

purported waiver occurred.       Indeed, the circuit court’s final

judgment, filed January 12, 2012, distinguished between the


     29
            As noted, the ICA did not address the circuit court’s holdings on
waiver, judicial estoppel, or collateral estoppel. However, the NCAA
requested at oral argument that this court address these holdings if we were
to conclude that there were disputed facts regarding the elements of a UMOC
claim and that summary judgment had thus been improperly granted on this
ground. Oral Argument at 00:36:50, Field v. The NCAA (No. SCWC-15-663),
http://oaoa.hawaii.gov/jud/oa/18/SCOA_071918_SCWC_15_663.mp3.



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claims dismissed in the Order Dismissing UMOC Claim and the

“remaining claims,” which were dismissed by Aloha Sports’

voluntary waiver at the pre-trial hearing.          Thus, unlike the

claims that were voluntarily dismissed, Aloha Sports did not

have a then-existing right to proceed on the UMOC claim when the

2011 pre-trial hearing occurred.

           In other words, prior to prevailing on its appeal of

the Order Dismissing UMOC Claim, Aloha Sports could not have

proceeded on the dismissed claim before the circuit court and

therefore could not waive that nonexistent right at the hearing.

Therefore, the circuit court erred in finding that Aloha Sports

had waived its UMOC claim.30

           The doctrine of judicial estoppel precludes a party

from assuming a position that is inconsistent with a position

already accepted by the court to gain an unfair advantage in the

proceedings.    See Gurrobat v. HTH Corp., 133 Hawaii 1, 20, 323

P.3d 792, 811 (2014); Roxas v. Marcos, 89 Hawaii 91, 124-25, 969

P.2d 1209, 1242-43 (1998).       The doctrine is intended to protect


     30
             The circuit court held that Aloha Sports impliedly waived the
UMOC claim at the pre-trial hearing because it was more difficult to prove
than the other HRS § 480-2 claims that it expressly waived. Our precedent
does not make a distinction between an implied and express waiver in this
regard; without a then-existing right to proceed on the UMOC claim, Aloha
Sports was not capable of waiving the claim by implication. See Coon, 98
Hawaii at 261, 47 P.3d at 376.



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the integrity of the judicial system and prevents parties from

“playing ‘fast and loose’ with the court or blowing ‘hot and

cold’ during the course of litigation,” thereby promoting

“orderliness, regularity, and expedition of litigation.”

Gurrobat, 133 Hawaii at 20, 323 P.3d at 811 (quoting Rosa v. CWJ

Contractors, Ltd., 4 Haw. App. 210, 218–19, 664 P.2d 745, 751

(1983)).   Because we hold that Aloha Sports did not waive its

UMOC claim at the pre-trial hearing, Aloha Sports did not assume

an inconsistent position by asserting its right to proceed on

that claim.   Thus, Aloha Sports was not judicially estopped from

raising the UMOC claim.

           Accordingly, we hold that the circuit court erred in

finding that waiver and judicial estoppel applied to preclude

Aloha Sport’s assertion of its UMOC claim.

                       C.    Collateral Estoppel

           The circuit court also held on remand that based on

the jury trial verdict finding that Aloha Sports failed to prove

by a preponderance of the evidence that the NCAA tortiously

interfered with Aloha Sport’s sale of itself to Pro Sports,

Aloha Sports was collaterally estopped from pursuing its UMOC

claim.   Collateral estoppel, or issue preclusion, is a bar to

the relitigation of a fact or issue litigated in a prior suit

when four requirements are met:

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          (1) the issue decided in the prior adjudication is
          identical to the one presented in the action in question;
          (2) there is a final judgment on the merits; (3) the issue
          decided in the prior adjudication was essential to the
          final judgment; and (4) the party against whom collateral
          estoppel is asserted was a party or in privity with a party
          to the prior adjudication.

Dorrance v. Lee, 90 Hawaii 143, 149, 976 P.2d 904, 910 (1999).

As an initial matter, Aloha Sports is correct in its contention

that, because the ICA vacated the circuit court’s January 12,

2012 final judgment, no final judgment in a prior case currently

exists and the elements of collateral estoppel are not met.

Nevertheless, we must consider whether the jury’s determination

as to Aloha Sports’ claim for tortious interference with

prospective business advantage resolved facts in this case that

would necessarily preclude recovery on Aloha Sports’ UMOC claim.

          The elements of a HRS § 480-13(a) claim based on an

unfair method of competition and a claim for intentional or

tortious interference with prospective business advantage are

not identical.    To establish an unfair method of competition

claim, a plaintiff must prove: “(1) a violation of HRS Chapter

480; (2) which causes an injury to the plaintiff's business or

property; and (3) proof of the amount of damages.”           Gurrobat v.

HTH Corp., 133 Hawaii 1, 21, 323 P.3d 792, 812 (2014).            Under

the second element, a plaintiff must demonstrate that the

defendant’s conduct negatively affects competition and that the


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plaintiff’s injury stems from the defendant’s anti-competitive

or unfair conduct.     Id. at 22-23, 323 P.3d at 813-14.         There is

no intent element required to establish an unfair method of

competition claim.     See Hungate v. Law Office of David B. Rosen,

139 Hawaii 394, 413, 391 P.3d 1, 20 (2017) (citing Short v.

Demopolis, 103 Wash.2d 52, 691 P.2d 163, 172 (Wash. 1984)

(Pearson, J., concurring)).

           In contrast, the elements of intentional or tortious

interference with prospective business advantage require the

plaintiff to prove all of the following:

           (1) the existence of a valid business relationship or a
           prospective advantage or expectancy sufficiently definite,
           specific, and capable of acceptance in the sense that there
           is a reasonable probability of it maturing into a future
           economic benefit to the plaintiff; (2) knowledge of the
           relationship, advantage, or expectancy by the defendant;
           (3) a purposeful intent to interfere with the relationship,
           advantage, or expectancy; (4) legal causation between the
           act of interference and the impairment of the relationship,
           advantage, or expectancy; and (5) actual damages.

Robert's Hawaii Sch. Bus, Inc. v. Laupahoehoe Transp. Co., Inc.,

91 Hawaii 224, 258, 982 P.2d 853, 887 (1999) (citations and

footnote omitted) (emphasis added).        Notably, unlike an unfair

method of competition claim, tortious interference with

prospective business advantage includes a purposeful intent

element.

           Although Aloha Sports relies on many of the same

underlying facts to support the UMOC claim as the tortious

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interference with prospective business advantage claim, the

jury’s verdict on the interference with prospective business

advantage claim did not provide any specific determinations

regarding the individual elements of that claim.31           Thus, it is

unclear which issues and facts the jury determined to render its

verdict.   For example, the jury could have determined that the

NCAA was not liable for tortious interference with prospective

business advantage based solely on a failure to meet the

purposeful intent element--an element not required in an UMOC

claim.   Simply stated, the jury’s determination that the NCAA

was not liable for tortious interference with prospective

business advantage did not definitively resolve factual issues

that would prevent Aloha Sports from satisfying the elements of

its UMOC claim.     Accordingly, the circuit court erred in holding

that issue preclusion barred Aloha Sports from asserting its

UMOC claim.




      31
            The Special Verdict Form stated, “Did Plaintiff ASI prove by a
preponderance of the evidence that Defendant NCAA tortiously interfered with
ASI’s prospective business advantage with Pro Sports & Entertainment?” In
the space marked “No” the jury indicated that all “12” jurors found that
Aloha Sports had not proven tortious interference beyond a preponderance of
the evidence. Because the jury marked “No” on the first question, the jury
was not required to and did not respond to the remaining questions, i.e.,
whether Aloha Sports had proven beyond a preponderance of the evidence that
the NCAA’s actions were the cause of Aloha Sports harm, or the reasonable
dollar amount of that harm.


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                          IV.      CONCLUSION

           Based on the foregoing, Aloha Sports raised genuine

issues of material fact as to the first and second elements of

an UMOC claim.     The third element, damages, has not been

contested.    Therefore, the ICA erred in affirming the circuit

court’s order and judgment granting the NCAA summary judgment.

Further, the circuit court erred in holding that Aloha Sports

was estopped from asserting the UMOC claim based on waiver,

judicial estoppel, and collateral estoppel.           We therefore vacate

the ICA’s judgment on appeal, the circuit court’s final

judgment, and the Order Granting Summary Judgment, and the case

is remanded to the circuit court for proceedings consistent with

this opinion.32

Amy T. Brantly                            /s/ Mark E. Recktenwald
Frederick W. Rohlfing, III
for petitioner                            /s/ Paula A. Nakayama

Gregory L. Curtner                        /s/ Sabrina S. McKenna
William C. McCorriston
Jordon J. Kimura                          /s/ Richard W. Pollack
for respondent
                                          /s/ Michael D. Wilson




     32
            Based on our disposition, the ICA’s holding affirming the
Attorney’s Fee Order is also vacated because it flows from the ICA and
circuit court’s holdings that the NCAA was the prevailing party on summary
judgment. See HRS § 607-14 (2016); Blair v. Ing, 96 Hawaii 327, 331, 31 P.3d
184, 188 (2001).



                                     39
