UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
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Plaintiffs
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v.
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ROBERT BAHRE, NEW HAMPSHIRE
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SPEEDWAY, INC., WILLIAM C. FRANCE,
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BRIAN FRANCE, the NATIONAL
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ASSOCIATION FOR STOCK CAR AUTO
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RACING, INC., and INTERNATIONAL
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SPEEDWAY CORPORATION,
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Defendants
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MICHAEL A. LIBERTY, SPEEDWAY
HOLDINGS ASSOCIATES, LP, OXFORD
SPEEDWAY, INC., OXFORD PLAINS
SPEEDWAY ASSOCIATES, LP and OXFORD
SPEEDWAY MANAGEMENT CORP.,
CIVIL CASE NO. __________
COMPLAINT AND
DEMAND FOR JURY TRIAL
NOW COME the plaintiffs, Michael A. Liberty, Speedway Holdings Associates,
LP, Oxford Speedway, Inc., Oxford Plains Speedway Associates, LP, and Oxford
Speedway Management Corp. and for their Complaint allege as follows:
INTRODUCTION
1.
This action arises out of the anti-competitive, fraudulent and otherwise
improper conduct of defendants Robert Bahre, New Hampshire Speedway, Inc.
(“NHSI”), William France, Jr., Brian France and the National Association for Stock Car
Auto Racing, Inc. (“NASCAR”) and the International Speedway Corporation of America.
In their efforts to defraud the plaintiffs and restrain competition in the markets for motor
speedway and stock car racing sanctioning services in Northern New England, the
Northeast and throughout the United States, defendants conspired to commit and did
commit – a number of anti-competitive, tortious and otherwise improper acts over the
course of the past several years that have caused plaintiffs to suffer severe financial harm
and damage to their business reputation and interests. In addition to Mr. Liberty, the
plaintiffs in this case consist of the partnership and corporate entities that have owned and
operated the Oxford Plains Speedway (“Oxford Plains”) from January 1st, 1987 through
the present day.
2.
The defendants’ illicit conduct has its roots in plaintiffs’ decisions to host
stock car racing events sanctioned by NASCAR’s only competitor in the Northeast – the
now defunct American-Canadian Tour (“ACT”) – during the first half of the 1990’s. In
the years during and immediately following plaintiffs’ hosting of such events, defendants
engaged and conspired to engage in conduct that had the ultimate effect of ending
decades of competitive stock car racing at Oxford Plains; drastically reducing the value
of the speedway as a going concern; inflicting severe financial harm upon plaintiffs and
damage to their business reputation and interests; reducing competition in the markets for
motor speedway services and stock car sanctioning services; and generally driving
plaintiffs out of the competitive stock car racing business.
3.
In order to accomplish their illicit objectives, defendants actively
employed NASCAR’s exclusive stock car racing sanction as a weapon to retaliate against
plaintiffs and otherwise harm competition. Defendants also furthered their scheme to
defraud the plaintiffs by making a series of false and misleading representations about
future opportunities for Oxford Plains that were crafted, coordinated and carried out in
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such a way as to string plaintiffs along for several years. Among other means and media,
defendants made use of interstate telephone wires and other interstate telephone systems
on multiple occasions to effectuate their illicit objectives.
PARTIES
4.
Plaintiff Michael A. Liberty is a resident of Gray, Maine. At all times
relevant to this action, plaintiff Liberty held a substantial ownership and management
interest in the Oxford Plains Speedway either directly or through affiliated entities.
5.
Plaintiff Speedway Holdings Associates, LP (“Speedway Holdings”) is a
limited partnership organized under the laws of the State of Maine. Speedway Holdings
is the current owner of the Oxford Plains Speedway.
6.
Plaintiff Oxford Speedway, Inc. is a corporation organized under the laws
of the State of Maine. Oxford Speedway, Inc. is the general partner of Speedway
Holdings.
7.
Plaintiff Oxford Plains Speedway Associates (“OPSA”) is a Maine limited
partnership. OPSA owned the Oxford Plains Speedway from 1987 - 1997.
8.
Plaintiff Oxford Speedway Management Corp. is a Maine corporation
whose president and sole shareholder is Michael Liberty. Oxford Speedway
Management Corp. was the general partner of OPSA from 1987 – 1997.
9.
Defendant Robert Bahre is an individual residing in South Paris, Maine.
Upon information and belief, Bahre is a director and the controlling shareholder of
defendant NHSI as well as its president and treasurer. Among other business activities,
defendant Bahre owns and operates a motor speedway, owns substantial interests in at
least one other motor speedway, and brokers the sanctioning of NASCAR events on
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behalf of other speedway owners. Bahre has long-standing business and personal
relationships with defendants NASCAR, William France and Brian France.
10.
Defendant NHSI is a corporation organized under the laws of the State of
New Hampshire. NHSI owns the New Hampshire International Speedway and is
generally in the business of hosting and promoting stock car racing events.
11.
Defendant William C. France is an individual residing in the State of
Florida. William France is president and chairman of the board of directors of defendant
NASCAR. Defendant William France is also chairman of the board of directors of
defendant International Speedway Corporation.
12.
Defendant Brian France is an individual residing in Florida and is the son
of defendant William France. At all times relevant to this complaint, Brian France
worked in various high-level capacities for NASCAR.
13.
Defendant NASCAR is a privately held Florida corporation with its
principal place of business in Daytona Beach, Florida. NASCAR is generally in the
business of sanctioning stock car racing events and touring series throughout the United
States. As used in this complaint, the term “sanction” is meant to encompass the panoply
of functions and services performed and provided by NASCAR in connection with
putting its name behind a stock car racing event or competitive touring series, including
but not limited to the following: scheduling, booking and promoting stock car racing
events; organizing, managing and promoting competitive touring series; negotiating and
entering into contracts with motor speedway owners, television stations, sponsors and
advertisers; attracting and licensing race car drivers; promulgating and enforcing rules
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and regulations for stock car racing events; and hiring and furnishing officials to preside
over racing events and enforce NASCAR rules and regulations.
14.
Defendant International Speedway Corporation (“International
Speedway”) is a Florida corporation with its principal place of business in Daytona
Beach, Florida. International Speedway is in the business of owning and operating motor
speedways throughout the United States. Upon information and belief, International
Speedway is substantially, if not wholly, owned and controlled by defendant William
France and other members of the France family.
JURISDICTION AND VENUE
15.
This Court has subject matter jurisdiction over this action pursuant to
28 U.S.C. § 1331 because this action arises in part under Sections 1 and 2 of the Sherman
Antitrust Act (15 U.S.C. §§ 1 and 2) and the Racketeering Influenced and Corrupt
Organizations Act (18 U.S.C. §§ 1961-1968). Pursuant to 28 U.S.C § 1367, this Court
has supplemental jurisdiction over the state law claims asserted in this action because
such claims arise out of the same set of operative facts upon which the federal claims are
based.
16.
Venue is proper in this Court because one or more of the defendants
and/or their associated enterprises conducted business in the State of Maine and/or made
use of telephone wires within the State of Maine in the course of their illicit conduct.
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FACTS
I.
Historical and Factual Background
A.
The Sale of Oxford Plains to the Plaintiffs and its Ownership History
17.
In December of 1986, Michael Liberty entered into negotiations with
defendant Robert Bahre concerning a proposed sale of Oxford Plains Speedway
(hereinafter “Oxford Plains”) to Liberty and a group of other investors. During the
course of negotiations leading up to the sale, Bahre and various representatives of
NASCAR informed Liberty that NASCAR intended to launch a new competitive touring
series for the Northeast and suggested to Liberty that he could play a pivotal role in
getting it off the ground by purchasing the speedway and hosting events there.
18.
Having secured Bahre’s agreement to use his personal and business
contacts at NASCAR to provide Liberty with a steady flow of NASCAR-sanctioned race
dates for Oxford Plains, along with Bahre’s agreement not to take any action for 10 years
within the State of Maine to compete in the auto-racing business, Liberty agreed to
purchase the facility from Bahre and his wife for approximately $4.3 million. The
written agreement signed by all parties on or about December 30, 1986 (“the 1986
Agreement”) specifically included these promises on Bahre’s part.
19.
Liberty formed Oxford Plains Speedway Associates (“OPSA”) on or about
January 1, 1987 for the purpose of assuming ownership of Oxford Plains from its
predecessor in interest, Speedway Associates, LP. The first general partner of OPSA was
Oxford Properties, Inc., of which Liberty was president and sole shareholder. On or
about March 17, 1987, Oxford Properties, Inc. became known as Oxford Speedway
Management Corp., but otherwise remained the same in terms of ownership and control.
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20.
In February of 1997, OPSA sold the speedway together with all its assets
to plaintiff Speedway Holdings Associates, LP (“Speedway Holdings”), another Maine
limited partnership whose general partner is plaintiff Oxford Speedway, Inc.
21.
Pursuant to his interests in limited partners of both OPSA and Speedway
Holdings, Liberty held a substantial ownership interest in the Oxford Plains Speedway
from 1987 - 1998.
B.
Bahre’s Relationship to William France and the Other Defendants
22.
In the course of his negotiations with Liberty in 1986 leading up to the
sale of Oxford Plains, Bahre frequently referred to his long-standing personal and
business relationships with high-level officials at NASCAR, such as defendants William
and Brian France, and trumpeted these relationships as the key to his ability to secure
NASCAR-sanctioned race dates for Oxford Plains for the indefinite future. Upon
information and belief, these relationships have their origins in Bahre’s hosting of
NASCAR-sanctioned auto-racing events at Oxford Plains during his period of ownership
in the 1970’s and early 1980’s.
23.
Over the years, Bahre has also performed a number of assignments for
defendants William France and NASCAR, particularly with respect to NASCAR’s
business dealings with the owners of auto-racing facilities in various parts of the United
States that host NASCAR-sanctioned events. By way of example, Liberty learned from
Bahre himself about the role Bahre played in disrupting the impending sale of a motor
speedway to one of NASCAR’s competitors. Bahre traveled to North Wilkesboro, North
Carolina in 1996 at the urging of William France to prevent a woman from selling her
50% share in a super speedway to Speedway Motor Sports, an enterprise substantially
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owned and controlled by Bruton Smith. Bahre conveyed to Liberty that the growing
prominence of Smith and Speedway Motor Sports in the stock car racing industry was of
great concern to NASCAR. By bringing to bear NASCAR’s grip on the North
Wilkesboro track’s two Winston Cup dates and NASCAR’s consequent ability to reduce
the track’s value to Smith or any other potential buyer, Bahre successfully spoiled the
deal with Smith and convinced the woman to sell her entire 50% interest to Bahre. In
exchange for his efforts, Bahre was awarded one of the track’s two Winston Cup dates.
NASCAR Winston Cup events are the premier stock car racing events in the United
States both in terms of the level of competition and the shear size of the television
audience.
24.
Bahre’s relationship with the other defendants further stems from his
ongoing role as a broker between NASCAR and the owners of motor speedways
interested in hosting NASCAR-sanctioned events. Bahre brokers or has brokered
NASCAR-sanctioned events for Oxford Plains, the Beech Ridge Motor Speedway, the
Wiscasset Motor Speedway and a number of motor speedways outside the State of
Maine, including the Las Vegas Motor Speedway and the North Wilkesboro Motor
Speedway.
25.
Defendants Bahre, William France and International Speedway are also
competitors by virtue to the fact that they are all in the business of owning and operating
motor speedways, particularly super speedways. Super speedways – such as the track in
North Wilkesboro and Bahre’s New Hampshire International Speedway – generally have
a track of a mile or more in length and are specifically designed to host premier autoracing events. Of the approximately 18 super speedways throughout the United States,
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defendant International Speedway – which is substantially if not wholly owned and
controlled by defendant William France and other members of his family – owns nine
and Bahre owns one and holds a half ownership interest in a second (the North
Wilkesboro track).
26.
Upon information and belief, defendants William France and/or other
officers, employees or agents of International Speedway have in the past had negotiations
and/or discussions with Bahre concerning the eventual purchase of Bahre’s New
Hampshire International Speedway and/or his half interest in the super speedway in
North Wilkesboro.
C.
The Inauguration of the Busch North Tour and the Hosting of
NASCAR Events at Oxford Plains from 1987-1989
27.
In February of 1987, Liberty signed a three-year sanction agreement with
NASCAR pursuant to which the plaintiffs were to obtain a regular schedule of NASCAR
racing events and help NASCAR inaugurate the Busch Grand National North Tour stock
car racing series (hereinafter referred to as the “Busch North series” or the “Busch North
Tour”). Oxford Plains – which was to serve as the hub speedway of the Busch North
Tour – hosted the inaugural Busch North series event in the spring of 1987.
28.
From 1987 - 1989, Oxford Plains hosted a total of twenty NASCAR-
sanctioned stock car racing events, including over ten Busch North series auto races and
one or more Busch Grand National Tour events. Busch Grand National events attract the
nation’s top stock car drivers and are generally televised throughout the United States.
29.
The hosting of NASCAR-sanctioned events at Oxford Plains carried with
it a myriad of profitable business opportunities for the plaintiffs. Nearly all the events
were televised pursuant to agreements between the plaintiffs and various television
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stations, such as the New England Sports Network (“NESN”) and ESPN. In addition, the
plaintiffs entered into contractual relationships with numerous vendors who paid money
in exchange for licenses to sell food, beverages, apparel and other goods and services
during NASCAR-sanctioned events. Plaintiffs also entered into agreements with a
variety of corporate sponsors and other advertisers who paid large sums of money in
exchange for the right to have their names associated with those events.
D.
Plaintiffs’ Unsuccessful Attempt to Build a Super Speedway and the
Opening of Bahre’s New Hampshire International Speedway
30.
In 1987, Liberty developed a proposal -- at the suggestion of defendant
Brian France and other high-level NASCAR officials -- to build a super speedway on the
site of Oxford Plains that would be capable of hosting Winston Cup and other premier
auto-racing events in addition to the Busch North races. Following some negotiation
between Liberty and Bahre, Bahre agreed to broker a multi-year Winston Cup sanction in
exchange for an annual $1 million fee for his services as a sanctioning broker and track
manager.
31.
In the fall of 1987, Liberty proposed this idea to William France in a
meeting at the Indigo Lakes Country Club in Florida and showed him plans that an
architect had drawn up at great expense to Liberty and OPSA. At the meeting, France
told Liberty that NASCAR did not grant multi-year sanctions and became visibly angry
with Bahre, who was also present at the meeting, for promising to broker such a sanction.
Bahre immediately denied that he had ever agreed to broker such a sanction. In the wake
of that meeting, Liberty and OPSA abandoned their plans for building a super speedway.
32.
Within months after the plaintiffs abandoned their plans, Bahre began
planning for the construction of a speedway based on the exact same design developed by
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the plaintiffs’ architect. In July of 1990, Bahre opened the New Hampshire International
Speedway in Louden, New Hampshire and began hosting a regular schedule of
NASCAR-sanctioned stock car racing events every season. The New Hampshire
International Speedway is the only super speedway in the whole Northeastern United
States.
33.
Prior to the opening of Bahre’s Speedway, NASCAR had assured Liberty
-- through individuals such Brian France, Jim Hunter and Les Richter -- that it would take
steps to minimize any adverse impact Bahre’s speedway might have on Oxford Plains,
specifically with regards to the scheduling of NASCAR events at both speedways.
Richter and Hunter --who both worked in high-level capacities for NASCAR and along
with Brian France controlled the scheduling of NASCAR-sanctioned events -- also
promised Liberty in a meeting in the Fall of 1990 that they would bring Winston Cup
drivers to Oxford Plains for the 1992 season, a promise they failed to honor.
34.
In the three seasons following the opening of Bahre’s speedway, Oxford
Plains hosted fourteen NASCAR-sanctioned events, including over ten Busch North
series auto races and one or more Busch Grand National events.
35.
Within the first couple years of its opening, however, Bahre’s New
Hampshire speedway – combined with NASCAR’s impeccable scheduling of events
there – began to adversely effect Oxford Plains’ business. In 1991, NASCAR gave Bahre
a key race date traditionally held by Oxford Plains for the annual running of the Oxford
250 -- Oxford Plains’ premier auto-racing event -- despite specific assurances by
NASCAR and Brian France that it would not issue conflicting race dates to Bahre’s New
Hampshire speedway.
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E.
Liberty’s First Attempt to Host a Stock Car Racing Event Sanctioned by
a Competitor of NASCAR
36.
Following the running of the Oxford 250 in July of 1992 – which for a
second year in a row produced losses as a result of the scheduling of a competing
NASCAR event at Bahre’s New Hampshire speedway – Liberty began to consider the
possibility of hosting a race in the fall of 1992 sanctioned by NASCAR’s only competitor
in the Northeast, the American-Canadian Tour (“ACT”).
37.
ACT was owned and operated by Thomas Curley, who had once managed
NASCAR’s first touring series in the Northeast (the NASCAR North Tour). Curley left
NASCAR in 1985 to start his own stock car racing sanctioning body. ACT sanctioned
races throughout eastern Canada and the Northeastern United States from 1986 until
going out of business after the 1995 racing season.
38.
Liberty telephoned Brian France in July of 1992 and asked him if he could
host an ACT event at Oxford Plains in the fall without jeopardizing his relationship with
NASCAR. Liberty explained to France that Bahre’s New Hampshire Speedway was
adversely affecting his business. France assured Liberty that NASCAR understood the
financial position that the Maine speedway was in and that the running of such an event
would not affect his ability to get NASCAR-sanctioned events in the future. France
specifically represented to Liberty that the ACT event would not jeopardize the four
Busch North series events Oxford Plains stood to receive for the 1993 racing season.
39.
Liberty made arrangements with Curley to host an ACT event at Oxford
Plains in September of 1992. Just prior to the running of the event, Bahre filed for an
injunction against Liberty and ACT to prevent the race from taking place on the ground
that it would violate an agreement between Bahre and Liberty concerning Bahre’s
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exclusive right to sell tires at Oxford Plains, a lucrative right he had retained upon his
sale of Oxford Plains to the plaintiffs in 1986. Curley and ACT subsequently backed out
of the race at the last minute.
40.
Shortly after the plaintiffs’ aborted attempt to hold an ACT race at Oxford
Plains, Brian France informed Liberty by telephone that the business relationship
between Oxford Plains and NASCAR was over and that NASCAR would no longer
sanction any auto-racing events at the Maine speedway. Bahre specifically told Liberty
in the course of that conversation that it was not in NASCAR’s best interest to do
business with racetracks that host or attempt to host races sanctioned by its competitors.
II.
The Hosting of ACT Stock Car Racing Events at Oxford Plains from
1993 through 1995
.
41.
In the wake of NASCAR’s decision to refuse to sanction any more
races at Oxford Plains, Liberty spoke with Thomas Curley in the fall of 1992 about his
interest in hosting of a regular schedule of ACT-sanctioned races at Oxford Plains.
Shortly thereafter, Liberty and Curley agreed to pay Bahre $100,000 in return for the
exclusive tire concession in order to head off further attempts by Bahre to prevent the
running of ACT races at Oxford Plains.
42.
From 1992-1995, Oxford Plains hosted a regular schedule of ACT auto-
racing events every season. The ticket prices for such events were substantially lower
than ticket prices for NASCAR-sanctioned events held at the Maine speedway from
1987-1992.
43.
Upon information and belief, defendants NASCAR and Bahre convinced
the owner of the Beech Ridge Motor Speedway – which had long hosted ACT-sanctioned
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auto races at its track – to stop hosting ACT events altogether and replace them with
NASCAR-sanctioned events.
44.
Further upon information and belief, the defendants also actively
encouraged and pressured a number of race car drivers and their affiliated entities not to
participate in any stock car racing event hosted at Oxford Plains, and readily made use of
their tight grip on the sport of competitive stock car racing to convince such drivers that
such a boycott was in their best interests.
45.
From 1994 – 1996, Bahre actively advertised and promoted auto-racing
events at his New Hampshire speedway within the State of Maine in violation of a tenyear non-competition agreement Bahre entered into with the plaintiffs upon their
purchase of Oxford Plains in 1986. Under that agreement, Bahre was prohibited from
engaging, either directly or indirectly, in the auto-racing business within the State of
Maine. Specifically and by way of example, Bahre advertised auto-racing events at his
speedway in Maine newspapers and purchased television time within the State of Maine
promoting those events.
46.
In the 1993 or 1994, in direct violation of the non-competition agreement,
Bahre paid the owner of a motor speedway in Wiscasset, Maine a substantial sum of
money to repave its racetrack and renovate the grandstands in order to get the speedway
in shape to host one or more NASCAR-sanctioned events.
47.
Upon information and belief, Bahre further violated the non-competition
agreement in the mid 1990’s by communicating with plaintiffs’ advertisers and sponsors
located within the State of Maine – such as CN Brown, True Value Hardware, VIP
Discount Auto Centers, Dunlap Insurance, Peoples Bank and Fleet Bank – and attempting
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to lure those sponsors to Bahre’s New Hampshire speedway. By way of example and
upon information and belief, Bahre invited several executives of True Value Hardware to
an event at Oxford Plains in 1994 and urged True Value to shift its advertising business
to Bahre’s speedway by making numerous false and disparaging comments about Oxford
Plains and Michael Liberty.
48.
By 1994, ACT had begun to experience severe financial difficulties. Over
the course of the next two years, Liberty poured substantial sums of money into Oxford
Plains in order to help it stay afloat and keep competitive stock car racing alive at the
Maine speedway.
49.
Despite the best efforts of Liberty and Curley, ACT went out of business
in late 1995. The 1995 season was the final season of competitive stock car racing at
Oxford Plains.
III.
The Anticipated Return of NASCAR to Oxford Plains: Three Years of
Fraudulent Representations and Unfulfilled Promises
.
A.
Initial Representations About Bringing NASCAR Back to Oxford Plains
50.
Facing the probability that Oxford Plains would be unable to provide
racing fans with competitive stock car racing for the first time in many years, Liberty
contacted NASCAR in November 1995 about the prospect of hosting some NASCARsanctioned auto-racing events for the 1996 season. In a November 20th telephone
conversation with Liberty, Dennis Huth, then Director of Touring Series for NASCAR,
expressed an interest in bringing NASCAR-sanctioned stock car racing back to Oxford
Plains. In two subsequent conversations during he month of December, Huth told
Liberty to contact him after the first and stated that “it would be great to be back” at
Oxford Plains in 1996.
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51.
In December 1995 or January of 1996, attorney Christopher Coggeshall of
the law firm of Verrill & Dana telephoned Liberty on behalf of Bahre. Coggeshall
represented to Liberty that Bahre would help bring NASCAR back to Oxford Plains if
Liberty would first “square things” with Bahre and with NASCAR. Coggeshall
specifically told Liberty that Bahre would be willing to act as a broker to secure the
sanctioning of multiple NASCAR-sanctioned stock car racing events for Oxford Plains’
upcoming 1996 season if Liberty agreed to grant back to Bahre – at no cost – the
exclusive tire concession for which Liberty had paid $100,000 three years before.
Coggeshall further informed Liberty that he needed to pay NASCAR approximately
$11.5 thousand before NASCAR would agree to sanction any events for Oxford Plains.
52.
In subsequent telephone conversations during the month of January, Bahre
specifically represented to Liberty that if he granted the lucrative tire concession back to
Bahre and paid NASCAR, Bahre would broker at least three NASCAR-sanctioned events
for Oxford Plains for the upcoming 1996 season, including two Busch North series events
and a Busch Grand National event to be run at the Oxford 250. As mentioned above,
Busch Grand National events attract the nation’s top drivers and are televised throughout
the United States.
53.
In a January 25th telephone conversation, NASCAR’s Director of
Competition, Christopher Boles, represented to Liberty that NASCAR would agree to
sanction races for Oxford Plains only after Liberty remitted “unpaid sanction fees” to
NASCAR.
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54.
In reliance upon the representations of Coggeshall, Bahre, Huth and Boles,
Liberty agreed in January of 1996 to grant the tire concession back to Bahre for nothing
and sent NASCAR a check for $11,574.45.
55.
In a series of telephone conversations in February of 1996, Dennis Huth of
NASCAR assured Liberty that he was actively working on scheduling some events for
Oxford Plains and that the prospects for such events looked “real good.” He specifically
told Liberty in a February 6th telephone conversation that he would be meeting with
Bahre during Speedweek to review the schedule for the 1996 racing season.
56.
In that same month, Bahre informed Liberty by telephone that he intended
to travel to Daytona Beach, Florida during “Speedweeks” (an annual stock car racing
extravaganza that features the running of the Daytona 500) and speak directly with
NASCAR officials about securing its sanction for stock car racing events at the Maine
speedway. Although he returned from Florida without any specific dates in hand, Bahre
assured Liberty that everything was taken care of and that the plaintiffs would soon get
their NASCAR dates.
57.
In reliance upon defendants’ representations and assurances about
NASCAR’s return to Oxford Plains, plaintiffs spent substantial sums of money in
preparation for the speedway’s hosting of the promised events. In addition to making
physical improvements and modifications of the speedway, plaintiffs spent money
promoting the events and began making arrangements with corporate sponsors and
vendors. During this time, plaintiffs also shifted substantial attention away from the
active development, pursuit and promotion of other business opportunities for Oxford
Plains and the property on which it was located.
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58.
Despite promises and assurances by both Bahre and NASCAR, no race
dates were forthcoming for Oxford Plains for the 1996 season. In a March 11th
telephone conversation, Huth refused to make any guarantees about the 1996 racing
season but assured Liberty that Oxford Plains would certainly get a NASCAR sanction
for 1997 if Liberty “squared things” with Bahre. On or about April 23, 1996, Bahre
finally informed Liberty that Oxford Plains would not be getting any NASCAR dates for
the 1996 season, but that things “looked good” for a fall announcement of race dates for
the following season.
B.
Liberty’s Assumption of the Katahdin Debt & More Promises By Bahre
59.
By the spring of 1996, Bahre’s tune about the NASCAR events he had
promised to secure for Oxford Plains began to change. Christopher Coggeshall
represented to Liberty in May and June that Bahre would now agree to obtain NASCARsanctioned events for Oxford Plains only upon Liberty’s signing of an agreement to
guarantee payment of an unsecured $1 million non-recourse debt obligation owed to
Bahre by the Katahdin Corporation (hereinafter the “Katahdin debt”). This debt was
unrelated to Oxford Plains or the business of auto racing.
60.
Although Liberty had a controlling ownership interest in the Katahdin
Corporation, he had no legal obligation whatsoever to personally assume the debt.
Moreover, because the Katahdin Corporation was insolvent and had few assets, and
further because the debt was unsecured and subordinated, it was highly unlikely that
Bahre would have been able to recover any money in satisfaction of the debt without
such a guarantee by Liberty. All other similarly situated creditors have to this date
received nothing in satisfaction of debts owed to them by the Katahdin Corporation.
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61.
In exchange for and in reliance upon Bahre’s representation that he would
bring NASCAR-sanctioned auto-racing back to Oxford Plains – including the promise of
at least two Busch North series events and one Busch Grand National event each season –
Liberty entered into an agreement with Bahre on or about July 31, 1986 (the “July 1996
Agreement”) in which he agreed to personally guarantee payment of the Katahdin debt.
Upon Bahre’s insistence – and in further reliance upon Bahre’s promises about bringing
NASCAR racing back to Oxford Plains – Liberty also agreed to a provision purporting to
release Bahre from liability for any and all past conduct.
62.
In the course of negotiations concerning that agreement, Liberty urged
Bahre to reduce to writing his promise to broker NASCAR-sanctioned events for Oxford
Plains. Bahre refused, explaining that to do so would risk jeopardizing his relationships
with defendant William France and others at NASCAR upon whom he depended to
obtain those events. Nonetheless, Bahre repeatedly assured Liberty that he would secure
NASCAR’s sanction for the promised events if Liberty agreed to guarantee payment of
the debt and release him from liability.
63.
In October 1996, Liberty made a $400,000 payment to Bahre toward
satisfaction of the Katahdin debt.
64.
Upon information and belief, while Bahre was receiving money from Liberty and
making promises to him about NASCAR dates, he was also attempting to interfere with
plaintiffs’ relationship with potential sponsors. Upon information and belief, in 1996 Bahre
telephoned executives at VIP Discount Auto Centers – a long-standing sponsor of auto-racing
events at Oxford Plains – and informed them that Oxford Plains was never going to get any
NASCAR dates. Further upon information and belief, Bahre also made a number of false and
defamatory statements about Liberty as a further part of his attempt to convince VIP to withdraw
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from its commitment to sponsor events at Oxford Plains and instead sponsor events at his New
Hampshire speedway.
C.
The Winston Cup Banquet and Initial Representations Concerning the
1997 Racing Season
65.
On October 4th, 1996, Liberty spoke by telephone with Christopher Boles
at NASCAR about hosting NASCAR-sanctioned events at Oxford Plains during the 1997
season. Boles represented to Liberty that things “looked good” as far as the prospect of a
NASCAR sanction for the Maine speedway, provided that Liberty worked everything out
with Bahre.
66.
On November 1st, 1996, Bahre represented to Liberty in a telephone
conversation that Bahre would be meeting with William France and other high-level
NASCAR officials at an upcoming Winston Cup banquet in New York in December and
would obtain from them a commitment about bringing NASCAR back to Oxford Plains
for the 1997 season and beyond. In subsequent conversations during the month of
November, Bahre told Liberty not to worry – that he had given Liberty his word and
would get dates for Oxford Plains.
67.
While Bahre was staying in New York for the banquet and other
NASCAR events, Liberty telephoned him on two separate occasions to inquire of his
progress, and both times was told not to worry. On December 18, 1996 – the day of the
Winston Cup banquet – Liberty telephoned Bahre at the Waldorf Astoria in New York.
In the course of that conversation, Bahre represented to Liberty that he would inform
Dennis Huth and William France that everything was “square” between Bahre and
Liberty and obtain a commitment from them about the sanctioning of NASCAR events at
the Maine speedway for the 1997 season.
20
68.
Although Bahre returned from New York without any formal commitment
from NASCAR, Bahre continued to assure Liberty in subsequent telephone conversations
during the month of December that such a commitment would be forthcoming. Bahre
informed Liberty that these things often take time, but not to worry.
69.
In a series of telephone conversations during the month of January, 1997,
both Huth and Boles of NASCAR assured Liberty that they were working on scheduling
some dates for Oxford Plains and that things looked “real good.” On January 14th, Huth
told Liberty that he would finalize the dates with William France and Bahre during
annual Speedweeks in Daytona Beach.
70.
On January 28th, Brian France told Liberty by telephone that he was glad
that he had worked everything out with Bahre and that things now looked good as far as
bringing NASCAR back to Oxford Plains for the 1997 season and beyond.
71.
In anticipation of the promised NASCAR dates for the 1997 season,
plaintiffs again expended substantial sums of money promoting and otherwise preparing
for Oxford Plains’ hosting of such events.
72.
Liberty telephoned Bahre on February 5th to see where things stood on his
end. Bahre told Liberty that he was having a hard time following through on his promise
to Liberty because NASCAR was backing away from its commitment to schedule dates
for Oxford Plains for the upcoming 1997 season.
73.
When Liberty confronted Huth and Boles at NASCAR about the matter in
telephone conversations on February 10th and 13th, they assured Liberty that they were
still working on scheduling some dates.
21
74.
Liberty spoke with Bahre a few more times that month to inquire of his
efforts. On February 25th, Bahre promised to talk to William France and work everything
out with him.
75.
Having been injured financially by Oxford Plains’ continuing inability to
obtain and NASCAR events, all but one of plaintiff OPSA’s limited partners sold their
equity interest in the Maine speedway in February of 1997. That prompted the formation
of a new limited partnership – Speedway Holdings Associates, LP (“SHA”) – for
purposes of purchasing the speedway. In the wake of that transaction, Liberty was the
only original investor to maintain an equity interest in Oxford Plains, having committed
himself to continue to work with Bahre and the other defendants to bring NASCAR
racing back to Oxford Plains.
76.
During the first part of the month of April 1997, Liberty had a number of
telephone conversations with Huth and Boles at NASCAR about a proposed Busch North
series race at Oxford Plains to be run in the spring. Those conversations included
specific discussions and negotiation concerning the amount of the purse that plaintiffs
would post for the proposed event.
D.
Demands for More Money and Ever-Changing Representations About
the Prerequisites to NASCAR’s Promised Return to Oxford Plains
77.
By mid-April, 1997, however, Bahre had once again changed his tune.
Upon information and belief, despite Bahre’s representations to Liberty to the contrary,
Bahre was unwilling to secure any NASCAR dates for Oxford Plains until Liberty made
additional payments to Bahre in connection with the Katahdin debt. Bahre’s promises in
the spring and summer of 1996 concerning the brokering of NASCAR-sanctioned events
22
had been specifically linked to Liberty’s act of guaranteeing satisfaction of the debt, not
to the full and final satisfaction of that debt.
78.
Bahre’s attorney, Christopher Coggeshall, represented to Liberty in the
spring of 1997 that no NASCAR-sanctioned events would be forthcoming for Oxford
Plains until Liberty made additional payments to Bahre.
79.
Relying upon Coggeshall’s representations, Liberty paid an additional
$200,000 to Bahre in May of 1997 toward satisfaction of the Katahdin debt.
80.
Despite this payment by Liberty, and despite promises, assurances and
other representations by Bahre, Coggeshall and NASCAR to the contrary, no NASCAR
race dates were forthcoming for Oxford Plains for the 1997 season.
81.
In June of 1997, Bahre told Liberty that although things did not look good
for the summer season, he was working on securing NASCAR’s sanction for a fall race at
Oxford Plains.
82.
When Liberty spoke by telephone with Dennis Huth at NASCAR on July
22nd and July 26th about the trouble he was having dealing with Bahre and getting race
dates, Huth represented to Liberty that he would get his NASCAR sanction if he would
simply pay Bahre the remaining $400,000 due on the Katahdin debt.
83.
By September 1997, it was clear that Bahre, Coggeshall and NASCAR
were telling the plaintiffs entirely different stories. Bahre continued to assure Liberty that
he would secure the promised NASCAR dates for Oxford Plains – if not for the fall then
at least for the upcoming 1998 racing season – and that his efforts were not contingent on
any more payments. On September 30, Bahre specifically told Liberty that he would
work everything out at the upcoming Busch Banquet in New Hampshire.
23
84.
NASCAR’s story echoed that of Bahre’s attorney but contradicted the
assurances Bahre was making to Liberty. In two telephone conversations on September
22, both Dennis Huth and Brian France told Liberty that he needed to get “square” with
Bahre before NASCAR would sanction any events at Oxford Plains.
85.
On December 1, 1997, Huth again told Liberty that NASCAR would not
sanction any races at NASCAR until Bahre got paid. When Liberty confronted Bahre
later that month about what he was hearing from NASCAR, Bahre denied that his efforts
were contingent on the receipt of additional Katahdin payments and insisted that he
would take care of everything with William France. Bahre represented to Liberty that he
spoke with “Junior” (as William France is sometimes referred to) on a frequent basis and
that he was likely having breakfast with him soon.
86.
Still with no dates in hand, Liberty confronted Bahre once again about the
matter on February 5th, 1998. Bahre again denied that he was waiting for more money,
assured Liberty that “a deal is a deal,” and maintained that his word was good. Bahre
represented to Liberty that he would take care of everything and get the plaintiffs some
NASCAR dates during the upcoming Speedweeks in Daytona Beach.
87.
In the early part of 1998, just as in 1996 and 1997, plaintiffs expended
money in preparation for Oxford Plains’ hosting of the anticipated events.
88.
Although Bahre returned from Florida without any commitment from
NASCAR concerning the sanctioning of stock car racing events at Oxford Plains for the
1998 season, he represented to Liberty that he was still “working on it.” On March 17,
however, Bahre finally told Liberty by telephone that things were not looking good for
Oxford Plains for the upcoming season.
24
89.
When Liberty confronted attorney Christopher Coggeshall for the last time
about the matter in late spring of 1998, Coggeshall informed Liberty that Bahre would
not broker the sanctioning of any NASCAR events for Oxford Plains until Liberty paid
Bahre the remaining $400,000 due on the Katadhin note.
90.
Liberty broke off communications with Bahre and NASCAR in June of
E.
Liberty is Forced to Relinquish Most of his Interest in Oxford Plains
91.
By the fall of 1998, plaintiff Michael Liberty had been forced into a
1998.
financially untenable position by virtue of defendants’ cleverly crafted and coordinated
representations and their continued albeit veiled refusal to sanction or broker the
sanctioning of any NASCAR auto-racing events at Oxford Plains. Having decided that
he could no longer pour any more of his own money into the speedway – and fearing that
NASCAR would not return to Oxford Plains until he personally removed himself from its
day-to-day operations – Liberty sold half of his equity interest in the speedway to a third
party and relinquished his entire ownership interest in the general partner and
management entity, plaintiff Oxford Speedway, Inc.
COUNT I
Violation of Sherman Act, Section 1 (15 U.S.C. § 1)
Agreements in Restraint of Trade
Against All Defendants
92.
Plaintiffs repeat and reallege paragraphs 1 through 91 as if fully set forth
93.
Upon information and belief, defendants agreed and/or conspired to
herein.
engage in conduct that had the effect of restraining trade or commerce in the markets for
motor speedway services and stock car racing sanctioning services in Northern New
25
England. Among the principal objects of their illegal conduct, defendants upon
information and belief agreed and/or conspired to: (a) inflict financial harm upon
plaintiffs in retaliation for their decision to do business with a competitor of NASCAR;
(b) drive plaintiffs out of the auto-racing business; (c) enhance the value of Bahre’s New
Hampshire speedway and pave the way for an eventual purchase by International
Speedway, William France and/or Brian France; (d) reduce the market value of the Maine
speedway and pave the way for a possible purchase by one or more of the defendants;
(e) drive NASCAR’s only sanctioning competitor in the Northeast (the AmericanCanadian Tour) out of business; (f) control and/or limit the number of nationally and
regionally-sanctioned stock car racing events in Northern New England and hence the
number and price of tickets to such events; (g) gain ownership and control of most if not
all of the “super speedways” throughout the United States; and (h) generally conceal
from the plaintiffs their illicit agreements and/or conspiracies, the objects of their illicit
agreements and/or conspiracies, and conduct engaged in by the defendants in furtherance
of their illicit agreements and/or conspiracies.
94.
Among other acts in furtherance of defendants’ unlawful agreement and/or
conspiracy, defendants: (a) withheld and/or conspired to withhold NASCAR’s exclusive
sanction from the plaintiffs and their Maine speedway; (b) prevented and/or conspired to
prevent race car drivers and their affiliated entities from participating in auto-racing
events hosted by the plaintiffs; (c) interfered and/or conspired to interfere with plaintiffs’
relationships with existing and prospective corporate sponsors; (d) made and/or conspired
to make a series of false and misleading representations to the plaintiffs concerning their
intention and/or efforts to sanction and/or broker the sanctioning of stock car racing
26
events at Oxford Plains; (e) interfered with and otherwise engaged in conduct to thwart
attempts by the owners and/or part owners of super speedways to sell their ownership
interests to defendants’ competitors; and (f) generally employed NASCAR’s exclusive
sanction as a weapon to retaliate against the plaintiffs, enrich Bahre and his New
Hampshire speedway, and enhance the value of defendant International Speedway and its
control over the market for super speedway services.
95.
Defendants conduct in furtherance of their unlawful conspiracy has had
the effect of restraining trade and producing anti-competitive injury. Among other anticompetitive effects of defendants’ conduct, stock car racing fans in Northern New
England who wish to attend competitive stock car racing events have no choice but to
attend NASCAR-sanctioned events and pay the high ticket prices associated with such
events; stock car racing fans in Northern New England no longer have the option of
attending competitive stock car racing events at Oxford Plains; and fans of premier stock
car racing such as the Winston Cup Tour face the dangerous probability of a market that
is substantially if not entirely vertically integrated and the effect that such vertical
integration is having and/or would have on the quality and/or price of premier stock car
racing events.
96.
As a result of defendants’ violation of 15 U.S.C § 1, plaintiffs have
suffered direct and consequential harm and are entitled to damages therefor.
COUNT II
Violation of Sherman Act, Section 2 (15 U.S.C. § 2)
Monopolization – Sanctioning Services
Against Bahre, NHSI, William France, Brian France & NASCAR
97.
Plaintiffs repeat and reallege paragraphs 1 through 96 as if fully set forth
herein.
27
98.
Defendants Robert Bahre, NHSI, William France, Brian France and
NASCAR (the “Count II defendants”) have monopolized, attempted to monopolize
and/or conspired to monopolize the market for stock car racing sanctioning services in
Northern New England and throughout the Northeast.
99.
As a result of the conduct of the Count II defendants, NASCAR has
achieved monopoly power over the market for stock car racing sanctioning services in
Northern New England and/or throughout the Northeast or has a dangerous probability of
succeeding in monopolizing that market in either or both of those geographic areas.
100.
In order to achieve, maintain and extend NASCAR’s monopoly over the
market for stock car racing sanctioning services, the Count II defendants engaged and/or
conspired to engage in exclusionary conduct, including but not limited to the following:
(a) withholding and/or conspiring to withhold NASCAR’s exclusive sanction from the
plaintiffs and their Maine speedway; (b) engaging and/or conspiring to engage in conduct
to drive plaintiffs and the American-Canadian Tour out of business; (c) preventing and/or
conspiring to prevent race car drivers and/or their affiliated entities from participating in
auto-racing events hosted by the plaintiffs; (d) interfering and/or conspiring to interfere
with plaintiffs’ relationships with existing and prospective corporate sponsors;
(e) making and/or conspiring to make a series of false and misleading representations to
the plaintiffs concerning defendants’ intention and/or efforts to sanction and/or broker the
sanctioning of stock car racing events at Oxford Plains; (f) entering into a number of
unlawful agreements in restraint of trade such as those described in Count I; and
(g) generally employed NASCAR’s exclusive sanction as a weapon to retaliate against
the plaintiffs, enrich Bahre and his New Hampshire speedway, and enhance the value of
28
defendant International Speedway and its control over the market for super speedway
services.
101.
As the result of the Count II defendants’ conduct in violation of 15 U.S.C.
§ 2, plaintiffs have suffered direct and consequential injury and are entitled to damages
therefor.
COUNT III
Violation of Sherman Act, Section 2 (15 U.S.C. § 2)
Monopolization – Super-Speedway Services
Against All Defendants
102.
Plaintiffs repeat and reallege paragraphs 1 through 101 as if fully set forth
103.
Defendants William Robert Bahre, NHSI, William France, Brian France,
herein.
NASCAR, and International Speedway have also monopolized, attempted to monopolize,
and/or conspired to monopolize the market for super-speedway services in the Northeast
and/or throughout the United States.
104.
As a result of defendants’ conduct, International Speedway has achieved
monopoly power over the market for super-speedway services in the Northeast and/or
throughout the United States or has a dangerous probability of succeeding in
monopolizing that market in either or both of those geographic areas.
105.
In order to achieve, maintain and extend International Speedway’s
monopoly over the market for super speedway services, the defendants engaged and/or
conspired to engage in exclusionary conduct, including but not limited to the following:
(a) taking steps, described above and in the other Counts herein, to financially cripple the
plaintiffs and/or drive them out of the stock car racing business for the specific purpose,
among others, of enhancing the value of the New Hampshire International Speedway and
29
defendants’ control over the market for super speedway services; (b) interfering with and
otherwise engaging in conduct to thwart attempts by the owners and/or part owners of
motor speedways to sell their ownership interests to competitors of NASCAR;
(c) entering into a number of unlawful agreements in restraint of trade such as those
described in Count I; and (d) generally employing NASCAR’s exclusive sanction as a
weapon to retaliate against the plaintiffs, enrich Bahre and his New Hampshire speedway,
and enhance the value of defendant International Speedway and its control over the
market for super speedway services;
106.
As the result of defendants’ conduct in violation of 15 U.S.C. § 2,
plaintiffs have suffered direct and consequential injury and are entitled to damages
therefor.
COUNT IV
Violation of RICO [18 U.S.C. § 1962(c)]
Against Bahre, William France & Brian France
107.
Plaintiffs repeat and reallege paragraphs 1 through 106 as if fully set forth
108.
Defendant NASCAR is an enterprise within the meaning of 18 U.S.C. §
herein.
1961(4) engaged in or whose activities affect interstate commerce.
109.
Defendant NHSI is an enterprise within the meaning of 18 U.S.C. §
1961(4) engaged in or whose activities affect interstate commerce.
110.
Defendants Bahre, NHSI, William France, Brian France and/or NASCAR
(the “Count IV defendants”) are associated in fact within the meaning of 18 U.S.C. §
1961(4) so as to constitute an enterprise within the meaning of that statute (“the Bahre-
30
France-NASCAR enterprise”). The Bahre-France-NASCAR enterprise is an enterprise
engaged in or whose activities affect interstate commerce.
111.
Upon information and belief, the Count IV defendants have, directly
and/or indirectly, conducted and/or participated in the conduct of the affairs of the
NASCAR, NHSI and/or Bahre-France-NASCAR enterprises through a pattern of
racketeering activity.
112.
As part of their pattern of racketeering activity, the Count IV defendants
committed multiple acts of wire fraud in violation of 18 U.S.C. § 1343. As more fully
described in Counts VI and VII below, the Count IV defendants made a series of false
and/or misleading representations to the plaintiffs over the interstate telephone wires and
other interstate telephone systems concerning their intention and/or efforts to sanction or
broker the sanctioning of stock car racing events at Oxford Plains. The Count IV
defendants also used the interstate telephone wires to communicate with one another for
the purpose of furthering their scheme to defraud the plaintiffs.
113.
The Count IV defendants made these misrepresentations for the purpose of
deceiving the plaintiffs and defrauding them of their property interests.
114.
As the result of the Count IV defendants’ fraudulent use of the interstate
telephone wires and other interstate telephone systems, plaintiffs were deprived of their
property interests.
115.
The Count IV defendants’ multiple acts of wire fraud constitute a “pattern
of racketeering activity” within the meaning of 18 U.S.C. § 1961(5).
116.
The Count IV defendants also aided and abetted one another in their
racketeering activities.
31
117.
As a result of the Count IV defendants’ racketeering activities in violation
of 18 U.S.C. § 1962(c), and/or their aiding and abetting of one another’s racketeering
activities, plaintiffs have suffered direct and consequential injury and are entitled to
damages therefor.
COUNT V
Violation of RICO [18 U.S.C § 1962(d)]
Against Bahre, William France and Brian France
118.
Plaintiffs repeat and reallege paragraphs 1 through 117 as if fully set forth
119.
Upon information and belief, defendants Bahre, William France and Brian
herein.
France agreed and/or conspired to conduct and/or participate in the conduct of the affairs
of their various enterprises through the pattern of racketeering activity described above in
Count IV.
120.
As a result of defendants’ conspiracy to commit acts in violation of 18
U.S.C. § 1962(c), plaintiffs have suffered direct and consequential injury and are entitled
to damages therefor.
COUNT VI
Fraud
Against Bahre
121.
Plaintiffs repeat and reallege paragraphs 1 through 120 as if fully set forth
122.
Defendant Bahre made a series of false and/or misleading representations
herein.
to the plaintiffs from January 1996 through June of 1998 concerning, among other things,
his intention and/or ability to broker NASCAR-sanctioned stock car racing events for
32
Oxford Plains for the 1996, 1997 and 1998 racing seasons and the nature of his efforts to
obtain such events.
123.
Specifically and by way of example, Bahre represented to Liberty on
multiple occasions, either directly or through his attorney, that he would broker and/or
attempt to broker the sanctioning of NASCAR stock car racing events at Oxford Plains,
when in fact, upon information and belief, Bahre had no intention of brokering and/or
attempting to broker such events for the plaintiffs at the time he made those
representations. Upon information and belief, Bahre also falsely and misleadingly
represented to Liberty that he was communicating with defendant William France and
other high-level officials at NASCAR in a genuine effort to secure NASCAR’s sanction
for the Maine speedway. Further upon information and belief, Bahre represented to
Liberty that he had the ability to broker NASCAR-sanctioned events for the Maine
speedway, when in fact, upon information and belief, Bahre knew at the time he made
such representations that NASCAR would not agree to sanction any races for Oxford
Plains.
124.
Bahre made these representations to the plaintiffs with the knowledge that
they were false and/or misleading, or in reckless disregard of whether they were false
and/or misleading, for the purpose, among others, of: (1) inducing the plaintiffs to take
the following actions: pay substantial sums of money to Bahre and grant him a lucrative
tire concession for nothing; (2) pay money to NASCAR; sign an agreement (the “July
1996 Agreement”) in which Liberty purported to guarantee payment of an unsecured $1
million debt obligation owed to Bahre by a third party and release Bahre from liability for
33
past conduct; (3) expend substantial sums of money preparing to host the promised
NASCAR events; (4) forego other business opportunities for Oxford Plains; and
(5) refrain from taking steps to investigate and/or initiate legal proceedings concerning
the possibility that the defendants were conspiring and/or had previously conspired to
defraud the plaintiffs, harm competition and/or engage in a pattern of racketeering
activity.
125.
Plaintiffs reasonably relied upon Bahre’s misrepresentations to their
detriment by, among other acts, paying Bahre substantial sums of money and granting
him the lucrative tire concession for nothing; entering into the July 1996 Agreement;
expending substantial sums of money in preparation for the hosting of the promised autoracing events; and foregoing other business opportunities for the speedway; and
refraining from taking steps to investigate and/or initiate legal proceedings concerning
the possibility that the defendants were conspiring or had previously conspired to defraud
the plaintiffs, harm competition and/or engage in a pattern of racketeering activity.
126.
Plaintiffs have suffered direct and consequential harm as the result of
Bahre’s intentional misrepresentations and are entitled to damages therefor.
COUNT VII
Fraud
Against NASCAR and Brian France
127.
Plaintiffs repeat and reallege paragraphs 1 through 126 as if fully set forth
128.
Through its officers, employees and/or agents, NASCAR made a series of
herein.
false and/or misleading representations to the plaintiffs concerning, among other subjects:
(a) its intention and/or efforts to sanction and/or schedule stock car racing events at
34
Oxford Plains for the 1996, 1997 and 1998 seasons and the nature of its efforts to do so;
and (b) its intention and/or efforts to take steps to minimize the adverse effects of Bahre’s
speedway upon Oxford Plains’ business. Defendant Brian France also made similar false
and misleading representations to the plaintiffs.
129.
Specifically and by way of example, NASCAR and Brian France
represented to Liberty that: (a) NASCAR would sanction events at Oxford Plains, or that
the prospects for such sanctioning looked good, when in fact, upon information and
belief, NASCAR had no intention at the time the representations were made to sanction
or even consider the sanctioning of any such events; (b) officials and/or employees of
NASCAR were making sincere efforts to sanction and/or schedule stock car racing events
at Oxford Plains, when in fact, upon information and belief, no such efforts were being
made; (c) NASCAR would refrain from sanctioning and scheduling conflicting race dates
at Bahre’s track when, in fact, NASCAR had no intention of refraining from doing so at
the time the statements were made; and (d) that NASCAR would bring a number of
Winston Cup drivers to Oxford Plains for the 1991 season and beyond when in fact, upon
information and belief, NASCAR had no intention of doing so at the time it made the
statements.
130.
NASCAR and France made these representations to the plaintiffs with the
knowledge that such representations were false and/or misleading, or in reckless
disregard of whether such representations were false or misleading, for the purpose,
among others, of inducing plaintiffs to take the following actions: (a) transfer money and
property to Bahre and NASCAR; (b) sign an agreement (the “July 1996 Agreement”) in
35
which Liberty purported to guarantee payment of an unsecured $1 million debt obligation
owed to Bahre by a third party and release Bahre from liability for past conduct;
(c) expend substantial sums of money preparing for the promised NASCAR-sanctioned
racing events; and forego other business opportunities for Oxford Plains; and (d) refrain
from taking steps to investigate and/or initiate legal proceedings concerning the
possibility that the defendants were conspiring and/or had previously conspired to
defraud the plaintiffs, harm competition and/or engage in a pattern of racketeering
activity.
131.
Plaintiffs reasonably relied upon the misrepresentations of defendants
NASCAR and Brian France to their detriment by, among other acts, transferring money
and property to Bahre and NASCAR; entering into the July 1996 Agreement; spending
substantial sums of money in preparation for the hosting of the promised auto-racing
events; and foregoing other business opportunities; and refraining from taking steps to
investigate and/or initiate legal proceedings concerning the possibility that the defendants
were conspiring or had previously conspired to defraud the plaintiffs, harm competition
and/or engage in a pattern of racketeering activity.
132.
Plaintiffs have suffered direct and consequential harm as the result of the
intentional misrepresentations made by NASCAR and Brian France and are entitled to
damages therefor.
COUNT VIII
Interference with Advantageous Relationships
Against All Defendants
133.
Plaintiffs repeat and reallege paragraphs 1 through 132 as if fully set forth
herein.
36
134.
By making and/or conspiring to make false and misleading representations
to plaintiffs concerning: (a) their intention, ability and/or efforts to broker NASCARsanctioned stock car racing events for Oxford Plains, defendants intentionally interfered
with numerous of plaintiffs’ advantageous relationships in connection with the hosting of
such events; and (b) NASCAR’s intention and/or efforts to take steps to minimize the
impact of Bahre’s New Hampshire speedway on Oxford Plains, including specifically
NASCAR’s intention and/or efforts to refrain from scheduling conflicting race dates at
Bahre’s speedway.
135.
Upon information and belief, defendants further interfered with plaintiffs’
advantageous relationships by making and/or conspiring to make false and/or misleading
representations to race car drivers, their affiliated entities and to Oxford Plains’ existing
and potential sponsors in order to induce those persons and entities not to do business
with the plaintiffs.
136.
The advantageous relationships with which the defendants interfered by
means of such fraudulent conduct included plaintiffs’ prospective economic advantages
stemming from relationships and potential relationships between plaintiffs and numerous
other persons and entities, including but not limited to the following: NASCAR; race car
drivers and their affiliated entities; the myriad of vendors who sell goods and services at
NASCAR-sanctioned auto-racing events; corporate sponsors and advertisers; television
stations and broadcasting companies that produce and televise such events; and the
thousands of fans who purchase tickets and spend money on goods and services at such
events.
37
137.
By means of their fraudulent conduct, defendants also interfered with
existing contractual relationships between plaintiffs and a number of other persons and
entities, including but not limited to the following: season ticket holders, vendors,
sponsors and advertisers.
138.
Plaintiffs have suffered direct and consequential harm as a result of
defendants’ interference with plaintiffs’ numerous advantageous relationships and
prospective economic advantages and are entitled to damages therefor.
COUNT IX
Civil Conspiracy
Against All Defendants
139.
Plaintiffs repeat and reallege paragraphs 1 through 138 as if fully set forth
140.
This count is asserted against defendants Bahre, William France and Brian
herein.
France (the “individual defendants”), and NHSI, NASCAR and International Speedway
(the “corporate defendants”).
141.
Upon information and belief, the individual defendants, acting on behalf
of themselves and/or their respective corporate entities, in conjunction with various
officials, employees and/or agents of the corporate defendants, acted in concert and
combination with a common design to defraud the plaintiffs and interfere with their
advantageous relationships.
142.
Among other acts in furtherance of their conspiracy to harm the plaintiffs,
defendants conspired to make – and did make – a series of false and/or misleading
representations concerning their intention, ability and/or efforts to sanction and/or broker
38
the sanctioning of stock car racing events at Oxford Plains, as is more fully set forth in
Counts VI and VII.
143.
As is more fully described in Count VIII, defendants also conspired to
interfere – and did interfere – with plaintiffs’ numerous advantageous relationships with,
among others, season ticket holders, television stations, vendors, corporate sponsors and
even NASCAR itself.
144.
Plaintiffs have suffered direct and consequential harm as the result of
defendants’ conspiratorial conduct and are entitled to damages therefor.
COUNT X
Breach of Contract – Race Dates
Against Bahre
145.
Plaintiffs repeat and reallege paragraphs 1 through 144 as if fully set forth
146.
In January of 1996, defendant Bahre agreed to broker the sanctioning of at
herein.
least three NASCAR-sanctioned stock car racing events for Oxford Plains’ 1996 season
(including specifically two Busch North series events and a Busch Grand National event
to be run at the annual Oxford 250) in exchange for plaintiff Liberty’s promise to grant
back to Bahre the exclusive tire concession for Oxford Plains (hereinafter the “January
1996 Agreement”).
147.
Liberty granted back to Bahre the exclusive tire concession in January of
148.
Bahre breached the January 1996 Agreement with Liberty by, among
1996.
other acts, failing to secure any NASCAR-sanctioned auto racing events for Oxford
39
Plains’ 1996 racing season and/or failing to exert his best efforts to broker the sanctioning
of such events.
149.
The owners of the Maine speedway at the time of the January 1996
Agreement – plaintiff OPSA and its general partner, plaintiff Oxford Speedway
Management Corp. – were third party beneficiaries of that agreement.
150.
Plaintiffs have suffered direct and consequential harm as the result of
Bahre’s breach of his January 1986 Agreement with Liberty and are entitled to damages
therefor.
COUNT XI
Breach of Contract – Non-Competition Agreement
Against Bahre
151.
Plaintiffs repeat and reallege paragraphs 1 through 150 as if fully set forth
152.
On or about December 30, 1986, defendant Bahre entered into a non-
herein.
competition agreement with plaintiffs whereby, in consideration for plaintiffs agreement
to purchase the Oxford Plains Speedway, defendant Bahre agreed not to engage in the
motor racetrack or speedway business within the State of Maine, either directly or
indirectly, on behalf of himself or any other person, corporation or any other entity, for a
period of ten (10) years from the date of the agreement (hereinafter the “NonCompetition Agreement”).
153.
From 1994 - 1996, defendant Bahre breached the Non-Competition
Agreement on multiple separate and independent occasions by, among other acts,
actively promoting auto-racing events at his New Hampshire International Speedway
within the State of Maine through advertisements in Maine newspapers, through
television and radio spots broadcast within the State of Maine, and through other media;
40
by intentionally interfering with plaintiffs’ relationships with its Maine sponsors and
advertisers, such as CN Brown, True Value Hardware, VIP Discount Auto Centers,
Dunlap Insurance and Peoples Bank; and by engaging and/or conspiring to engage in
conduct to persuade the owner of the Beech Ridge Motor Speedway to stop hosting ACT
events and replace them with NASCAR events.
154.
Plaintiffs have suffered direct and consequential harm as the result of
Bahre’s multiple breaches of the Non-Competition Agreement and are entitled to
damages therefor.
COUNT XII
Promissory Estoppel
Against Bahre, Brian France & NASCAR
155.
Plaintiffs repeat and reallege paragraphs 1 through 154 as if fully set forth
156.
Defendants Bahre, Brian France and NASCAR (the “Count XII
herein.
defendants”) made a series of promises, assurances and other representations to the
plaintiffs on multiple occasions that they would sanction and/or broker the sanctioning of
NASCAR auto-racing events for Oxford Plains for the 1996, 1997 and 1998 seasons.
157.
The Count XII defendants should have reasonably expected that such
promises would induce plaintiffs to transfer money and property to Bahre and NASCAR;
forego other business opportunities; enter into an agreement in which Liberty purported
to guarantee payment of an unsecured $1 million debt obligation owed to Bahre by a
third party; expend substantial sums of money in preparation for Oxford Plains’ hosting
of the promised NASCAR-sanctioned events; and/or take or forbear from taking other
actions in reliance thereon.
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158.
The Count XII defendants’ promises did in fact induce plaintiffs to take,
or forebear from taking, such actions.
159.
The Count XII defendants failed to honor or fulfill their promises to the
plaintiffs.
160.
Plaintiffs have suffered direct and consequential harm as a result of the
Count XII defendants’ unfulfilled promises and injustice can only be avoided by
enforcement of those promises.
COUNT XIII
Negligent Misrepresentation
Against Bahre, NASCAR & Brian France
161.
Plaintiffs repeat and reallege paragraphs 1 through 160 as if fully set forth
162.
As more fully described in Counts VI and VII above, defendants Bahre,
herein.
NASCAR and Brian France, either directly or through their officers, employees and/or
agents, made numerous false and/or misleading representations to the plaintiffs
concerning their intention, ability and/or efforts to sanction and/or broker the sanctioning
of stock car racing events at Oxford Plains for the 1996, 1997 and 1998 seasons.
163.
At best, defendants were negligent in making such misrepresentations.
164.
Plaintiffs have suffered direct and consequential harm as the result of the
the negligent misrepresentations of defendants Bahre, NASCAR and Brian France and
are entitled to damages therefor.
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COUNT XIV
Breach of Fiduciary Duty
Against Bahre
165.
Plaintiffs repeat and reallege paragraphs 1 through 164 as if fully set forth
166.
Defendant Bahre agreed to act as a broker for the plaintiffs in order to
herein.
secure NASCAR’s sanctioning of stock car racing events at Oxford Plains. Throughout
the period from January 1996 through March of 1998, Bahre represented to Liberty on
numerous occasions that he was contacting officials at NASCAR on Liberty’s behalf and
otherwise making efforts to secure the sanctioning of NASCAR events at Oxford Plains.
167.
Specifically and by way of example, Bahre traveled to Florida on behalf of
Liberty and the other plaintiffs for three consecutive years (1996-1998) during annual
“Speedweek” for the stated purpose of brokering the sanctioning of NASCAR events at
the Maine speedway. Bahre also undertook to act on plaintiffs’ behalf in pursuit of such
events at the December 1996 Winston Cup Banquet and the 1997 Busch Banquet.
168.
Plaintiffs’ trust in Bahre as their sanctioning broker was manifest in
plaintiffs’ actions and inactions in reliance thereon, such as transferring money and
property to Bahre and foregoing the development or pursuit of other opportunities for
Oxford Plains.
169.
Plaintiffs placed trust and confidence in Bahre, his strong personal and
business relationships with high-level NASCAR officials, and his extensive knowledge
and experience in stock car sanctioning. Bahre accepted this trust and confidence each
time he undertook to broker the sanctioning of NASCAR events at plaintiffs’ speedway.
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170.
By virtue of the trust and confidence plaintiffs placed in Bahre in
authorizing him to act as their broker, and Bahre’s superior knowledge and position in the
context of efforts to obtain NASCAR’s sanction, Bahre owed fiduciary duties to the
plaintiffs. Those duties included, but are not limited to, his duty to act in good faith and
exert his best efforts to secure the sanctioning of NASCAR-events at Oxford Plains.
171.
Bahre breached his fiduciary duties to the plaintiffs by, among other acts,
lying to them and/or misleading them about his intention and/or ability to secure the
sanctioning of events for Oxford Plains and the nature of his efforts to obtain those
events; failing to exert his best efforts to broker the promised events; conspiring with
NASCAR to defraud plaintiffs of their property and harm their business interests;
interfering with plaintiffs’ relationships with existing and prospective corporate sponsors
and advertisers; and otherwise acting in bad faith vis-à-vis Liberty and the other
plaintiffs.
172.
Plaintiffs have suffered direct and consequential harm as a result of
Bahre’s multiple breaches of his fiduciary duties to them and are entitled to damages
therefor.
WHEREFORE, plaintiffs respectfully request that this Court:
1.
Award such compensatory and consequential damages to plaintiffs as are
appropriate, plus interest and costs;
2.
Award punitive damages to plaintiffs where appropriate;
3.
Award plaintiffs triple damages and attorneys’ fees for the harm plaintiffs
suffered as a result of defendants’ violations of 15 U.S.C. §§ 1 and 15 U.S.C. § 2;
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4.
Award plaintiffs triple damages and attorneys’ fees for the injuries to
plaintiffs’ business and property suffered as a result of the individual defendants’
violations of 18 U.S.C. § 1962(c) and 18 U.S.C. § 1962(d);
5.
Declare the July 1996 Agreement between Bahre and Liberty, together
with all of its provisions, void and unenforceable; and
6.
Award such other relief as is just and proper.
JURY DEMAND
Plaintiffs hereby demand a trial by jury on all claims so triable.
Dated this 21st day of April, 2000.
MICHAEL A. LIBERTY, SPEEDWAY
HOLDINGS ASSOCIATES, LP, OXFORD
SPEEDWAY, INC., OXFORD PLAINS
SPEEDWAY ASSOCIATES, LP, and
OXFORD SPEEDWAY MANAGEMENT
CORP.
By their attorneys,
____________________________________
Daniel G. Lilley, Esq.
Mark L. Randall, Esq.
David Kreisler, Esq.
DANIEL G. LILLEY LAW OFFICES, P.A.
39 Portland Pier
P.O. Box 4803
Portland, Maine 04112-4803
(207) 774-6206
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