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*********************************************** 
CADCO, LTD. v. DOCTOR’S ASSOCIATES,

INC., ET AL.

(AC 40306)

Sheldon, Elgo and Flynn, Js.

Syllabus

The plaintiff sought to recover damages from the defendants for, inter

alia, unfair and deceptive acts and practices in their business dealings

concerning the design and development of a certain new product in

violation of the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-

110a et seq.). Beginning in February, 2012, and over the course of approximately one and one-half years, the plaintiff engaged in a business relationship with the defendants to design and produce a metal heating

plate for the defendants’ production of a certain new food product in

certain of its restaurants. In August or September, 2013, following the

dissemination of information about the heating plate to the defendants

and orders of the heating plate for testing by the defendants, the plaintiff

filed an application for a design patent for the heating plate, which was

granted following the initiation of this action. In October, 2013, the

plaintiff was informed that the defendants had decided to go with another

provider for the heating plate, and, subsequently, the plaintiff discovered

that another company, with personal ties to the defendants, had supplied

a nearly identical heating plate to the defendants. The trial court granted

the defendants’ motions for summary judgment on all counts and rendered judgment thereon, from which the plaintiff appealed to this

court. Held:

1. The trial court properly concluded that there was no genuine issue of

material fact that the defendants’ conduct did not amount to an unfair

act or practice in violation of CUTPA; the plaintiff’s claims failed to

meet any prong of the cigarette rule, which is used to determine whether

a practice violates CUTPA, as the defendants’ prolonged negotiations

with the plaintiff and the defendant’s conduct in giving the plaintiff’s

design to a competitor in the absence of a patent or confidentiality

agreement, and granting a contract to a manufacturer with ties to the

defendants, which the defendants were free to do, did not offend public

policy in such a way as to violate an established concept of unfairness,

the defendants’ behavior in not hiring the plaintiff to produce the new

heating plates it had designed or in taking the plaintiff’s design to a

competitor with ties to the defendant companies was not immoral,

unethical, oppressive, or unscrupulous in any way, and any injury that

the plaintiff suffered could reasonably have been avoided by obtaining

a confidentiality agreement or other stopgap measure to protect its

product design until the patent it had applied for was issued.

2. The trial court properly concluded that there was no genuine issue of

material fact as to whether the defendants’ conduct constituted a deceptive act or practice under CUTPA; there was no evidence of any misrepresentation, omission, or practice by the defendants likely to mislead the

plaintiff to believe that it would receive a contract from the defendants,

and to the extent the plaintiff claimed that the defendants should have

informed it explicitly that they were soliciting bids from others and that

one potential bidder had been given the plaintiff’s design upon which

to formulate its own bid, such omissions did not amount to a CUTPA

violation because the defendants were under no duty to so inform

the plaintiff.

3. The trial court did not err in concluding that there was no genuine issue

of material fact as to whether the defendants were unjustly enriched

to the plaintiff’s detriment by the defendants’ alleged conduct; although

the defendants benefited from the time and effort it took the plaintiff

to design the heating plate, there was no evidence that they did not

compensate the plaintiff fully for that benefit, as there was evidence

that the defendants paid the plaintiff each time they purchased one or

more heating plates for product and market testing.

Argued November 14, 2018—officially released March 5, 2019
Procedural History

Action to recover damages for, inter alia, unfair trade

practices, and for other relief, brought to the Superior

Court in the judicial district of Litchfield, where the

court, Pickard, J., granted the plaintiff’s motion to cite

in additional parties; thereafter, the matter was transferred to the judicial district of Hartford, Complex Litigation Docket; subsequently, the court, Moukawsher,

J., granted the defendants’ motions for summary judgment and rendered judgment thereon, from which the

plaintiff appealed to this court. Affirmed.

Patrick E. Power, for the appellant (plaintiff).

Jeffrey R. Babbin, with whom were David R. Roth

and, on the brief, John M. Doroghazi, for the appellees

(named defendant et al.).

Matthew W. Buttrick, pro hac vice, with whom was

David T. Martin, for the appellee (defendant Independent Purchasing Cooperative, Inc.).
Opinion

SHELDON, J. The plaintiff, Cadco, Ltd., commenced

this action alleging that the defendants, Doctor’s Associates, Inc. (Doctor’s Associates), Franchise World Headquarters, LLC (Franchise), and Independent Purchasing

Cooperative, Inc. (Independent), engaged in unfair acts

or practices and unfair methods of competition and

deceptive acts or practices in their business dealings

with the plaintiff concerning the design and development of a new product in violation of the Connecticut

Unfair Trade Practices Act (CUTPA), General Statutes

§ 42-110a et seq., and that in so doing they unjustly

enriched themselves to the plaintiff’s detriment. The

plaintiff appeals from the summary judgment rendered

in favor of the defendants on its complaint. We conclude

that the trial court properly determined that the defendants were entitled to summary judgment on each of the

plaintiff’s claims against them because they established

that there was no genuine issue of material fact that

the plaintiff had no right to prevail on any of those

claims. Accordingly, we affirm the judgment of the

trial court.

The following facts are undisputed. In February, 2012,

representatives from Doctor’s Associates, the franchisor of the Subway restaurant chain in the United States,

and Franchise, a corporation that provides administrative services to Doctor’s Associates, approached the

plaintiff about purchasing a standard flat metal heating

plate that the plaintiff manufactured. The plate was to

be considered for use in Subway restaurants to cook

a new flatbread pizza product called the ‘‘Flatizza.’’ As

a result of this meeting, the plaintiff provided one of

its standard heating plates to Doctor’s Associates for

testing at Subway headquarters. Doctor’s Associates

also requested that the plaintiff sign a nondisclosure

agreement to protect various details about its business

practices, which the plaintiff signed on February 27,

2012.

During the course of testing, representatives from

Franchise notified the plaintiff that problems had arisen

with using the plaintiff’s standard plate to cook the

Flatizzas. Thereafter, between April, 2012, and September, 2012, the plaintiff made numerous changes to its

standard heating plate to address those problems, creating six different versions of the plate for the defendants

to test. In its correspondence with defendants Doctor’s

Associates and Franchise concerning the changes that

had been made to the plates, the plaintiff shared

detailed technical information about its design. By the

end of the testing period, Doctor’s Associates had purchased a total of 133 heating plates from the plaintiff.

Subway’s primary oven manufacturer, TurboChef, ultimately approved the fifth version of the modified heating plate for use in its ovens in Subway restaurants.

Subway then began to test market the Flatizza in several
cities across the country to determine if it should offer

the new product nationally. To facilitate such market

testing, Doctor’s Associates purchased 1,728 of the

modified heating plates from the plaintiff, in eight separate orders from May, 2012 through February, 2013.

On June 4, 2012, a meeting was held between several

the plaintiff representatives and representatives from

Doctor’s Associates and Franchise. At that meeting, the

plaintiff was informed that if Subway’s management

decided to offer the Flatizza throughout the country, it

would aim to distribute the modified heating plates to

its franchisees in March, 2013, and thus the plaintiff

would be expected to begin production of the new

plates in October, 2012, after the plaintiff and Independent, Subway’s purchasing arm, determined the pricing

for the ‘‘full production rollout.’’ The plaintiff e-mailed

representatives of Doctor’s Associates and Franchise

on June 7, 2012, to memorialize the June 4 meeting, but

received no response. The defendants later decided to

delay the March, 2013 rollout of the Flatizza.

From March, 2013 through September, 2013, the

defendants continued to update the plaintiff regarding

the Flatizza project and to gather information from the

plaintiff regarding its production capabilities for the

new plates, the process by which it would seek national

public health and safety approval for them, and its

updates to its proposal for pricing the plates’ production. On March 25, 2013, Ed Degnan, an equipment

specialist for Franchise, requested a detailed production timeline and cost information from the plaintiff for

an order of 16,000 plates, but he cautioned in an e-mail

the following day: ‘‘To be clear, this is exploratory only

[and] not an order. DO NOT ORDER ANY MATERIALS.’’

In April, 2013, Franchise informed the plaintiff, in

another e-mail, that it was working with four different

vendors on the project. On May 31, 2013, Tricia Hetherington, the director of new product development for

Franchise, e-mailed the plaintiff, stating that she would

‘‘like to explore how we could be ready for a potential

February, 2014 launch of Flatizza.’’

On July 10, 2013, the plaintiff e-mailed a representative from Independent to confirm the details of a recent

phone call between itself and Independent concerning

the need for a production timeline and pricing for 22,000

of the new plates, Subway’s intent to roll out the Flatizza

in its restaurants in February, 2014, and, to that end,

its need to have all of the new plates delivered to a

warehouse in Massachusetts for that purpose by

December 20, 2013, and for the plaintiff to commit to

filling the order no later than September 1, 2013. In

response to that e-mail, the Independent representative

stated that, although the plaintiff’s summary of the

phone call was accurate, ‘‘[m]uch on our end is not

firm, so please await further information . . . .’’

At the same time, there was uncertainty as to whether
Merrychef, the manufacturer of a different oven used

in certain Subway restaurants as an alternative to the

TurboChef oven, would make its own heating plates

for use in its ovens to cook Flatizzas rather than using

plates manufactured by the plaintiff. Thereafter, on July

10, 2013, Independent asked the plaintiff to inform it

of ‘‘the impact of an additional 7000 Merrychef style

plates should we add these to the order.’’ On July 18,

2013, Franchise sent an e-mail to the plaintiff with the

subject line ‘‘Pizza Plate Bid Information.’’ That e-mail

read: ‘‘Do you guys have any questions on this bid? I

have notified my Merrychef rep that if you guys are

approved to manufacture both plates then Merrychef

will need to approve your plate in their oven. I would

then send one of the [two] Merrychef plates you sent

me to Merrychef for approvals.’’ This was the first and

only documented mention to the plaintiff by any defendant that the choice of manufacturer for the new heating

plates, if they were ordered, would be made through a

bidding process. Later that evening, Franchise e-mailed

the plaintiff that it ‘‘looks like you are ready to [go] if

we give you the go ahead.’’

On August 1, 2013, Independent e-mailed the plaintiff

to verify the production timeline information for a presentation by Franchise and Independent to ‘‘the leadership,’’ so that the leadership could ‘‘understand the

timing of the decision required.’’ On August 16, 2013,

the plaintiff e-mailed Independent to confirm a quote

for the heating plates of $67.27 per unit. On September

13, 2013, Degnan informed the plaintiff that there were

no new updates on the Flatizza project and that he

would not expect any decisions that year. The final

e-mail exchange between Franchise and the plaintiff

occurred on September 23, 2013, when the plaintiff

asked Franchise to ‘‘go over a few things’’ over the

telephone and Franchise responded that it was not sure

what the plaintiff wanted to discuss, but it still needed

the information about production capabilities and other

matters it had requested from the plaintiff earlier

that day.

On October 10, 2013, Sam Grano de Oro, the director

of operations for the plaintiff, received a telephone call

from Degnan. Degnan first asked whether the plaintiff

had purchased the materials needed to fulfill an order

from the defendants for the full production rollout.

Grano de Oro responded that the plaintiff had not purchased any materials, but that all of the necessary preparations to do so had been made with its materials

suppliers. Degnan then informed Grano de Oro that the

defendants had ‘‘decided to go with another provider,’’

without offering any explanation for its decision. Grano

de Oro responded by requesting an opportunity to

address any concerns that the defendants might have

had with their bid, but that request was not honored.

All he could do at that time was to inform Degnan that

the new heating plate and its design belonged to the
plaintiff. Sometime in late August or early September,

2013, the plaintiff filed an application for a design patent

for the modified heating plate. That application was

ultimately granted approximately two years later, on

September 15, 2015.

Early in 2014, the plaintiff became aware that Subway

had proceeded with the nationwide rollout of the Flatizza. In April, 2014, representatives from the plaintiff

began to investigate how that had been done and discovered that a metal heating plate similar to the one the

plaintiff had designed for the defendants was being

used in Subway restaurants in Florida and Connecticut.

The plaintiff then hired a mechanical engineer and a

material science engineer to compare the new heating

plate it had designed to the plate being used in Subway

restaurants. The engineers opined that the two plates

were nearly identical and that the defendants’ plate

appeared to be a refinement of the plaintiff’s plate.

Through its continued investigation, the plaintiff discovered that an executive at VTM Concepts, the supplier of

the nearly identical heating plate being used in Subway

restaurants, is married to the president of Doctor’s

Associates and Franchise, who had been copied on

several of the e-mails between the plaintiff and Franchise regarding the progress of the heating plate project.

The plaintiff subsequently filed this action. In its fivecount amended complaint, the plaintiff alleged that the

defendants were jointly and severally liable on the following theories of liability: (1) in the first count, for

unfair acts or practices and unfair methods of competition in violation of CUTPA; (2) in the second count, for

punitive damages under CUTPA, based upon the unfair

acts or practices and unfair methods of competition

alleged in the first count; (3) in the third count, for

deceptive acts or practices in violation of CUTPA; (4)

in the fourth count, for punitive damages under CUTPA

based upon the deceptive acts or practices alleged in the

third count; and (5) in the fifth count, unjust enrichment

based upon the conduct alleged in the first four counts.

The complaint alleged, more specifically, that over the

course of one and one half years, the defendants had

expressly or impliedly represented to the plaintiff, and

thereby caused it to believe, that it would receive an

order for over 25,000 new heating plates if Subway

decided to launch the Flatizza nationwide. In reliance

on these representations, the plaintiff had designed a

custom heating plate for the defendants, supplied samples of the new plate to Subway for test marketing

purposes, and turned over to the defendants the design

and technical information needed to manufacture the

plates. Each of the defendants answered the complaint

by denying all allegations of wrongdoing against it and

pleading several special defenses.

On January 13, 2017, the defendants filed parallel

motions for summary judgment. In its memorandum of
decision granting the motions for summary judgment

as to all defendants on all counts, the trial court concluded that the undisputed facts showed that there was

nothing unfair or deceptive about the defendants’ dealings with the plaintiff with respect to the new heating

plates, noting that ‘‘not every missed business opportunity violates CUTPA,’’ and that the plaintiff could have

avoided any injury to itself resulting from others’ use of

its product design by taking reasonable steps to protect

itself. The court further concluded that the defendants

had not been unjustly enriched by the plaintiff’s efforts

to design the new heating plate because the plaintiff

had not been deceived or misled to provide its design

to the defendants without paying for it or without protecting itself by negotiating a confidentiality agreement.

On appeal, the plaintiff claims that (1) the trial court

improperly concluded that no genuine issue of material

fact exists as to whether the defendants’ conduct constituted an unfair act or practice in violation of CUTPA,

(2) the court improperly concluded that there was no

genuine issue of material fact as to whether the defendants’ conduct constituted a deceptive act or practice

in violation of CUTPA, and (3) the court erred in concluding that no genuine issue of material fact exists as

to whether the defendants were unjustly enriched to

the plaintiff’s detriment.

‘‘Our review of the trial court’s decision to grant a

motion for summary judgment is plenary.’’ (Internal

quotation marks omitted.) Brusby v. Metropolitan District, 160 Conn. App. 638, 646, 127 A.3d 257 (2015).

Practice Book § 17-49 provides in relevant part: ‘‘[Summary] judgment . . . shall be rendered forthwith if the

pleadings, affidavits and any other proof submitted

show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment

as a matter of law.’’ ‘‘In deciding a motion for summary

judgment, the trial court must view the evidence in

the light most favorable to the nonmoving party. . . .

Although the party seeking summary judgment has the

burden of showing the nonexistence of any material

fact . . . a party opposing summary judgment must

substantiate its adverse claim by showing that there is

a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . .

It is not enough . . . for the opposing party merely to

assert the existence of such a disputed issue. . . . Mere

assertions of fact, whether contained in a complaint or

in a brief, are insufficient to establish the existence of

a material fact and, therefore, cannot refute evidence

properly presented to the court [in support of a motion

for summary judgment].’’ (Emphasis omitted; internal

quotation marks omitted.) Marsala v. Yale-New Haven

Hospital, Inc., 166 Conn. App. 432, 458–59, 142 A.3d

316 (2016). ‘‘A material fact is a fact that will make a

difference in the result of a case.’’ (Internal quotation

marks omitted.) Silberstein v. 54 Hillcrest Park Associ-
ates, LLC, 135 Conn. App. 262, 266, 41 A.3d 1147 (2012).

I

The plaintiff first claims that the trial court improperly concluded that no genuine issue of material fact

exists as to whether the defendants’ conduct constituted an unfair act or practice under CUTPA. Specifically, the plaintiff argues that the defendants induced

the plaintiff to believe that it would receive a large

order for new plates of the type it had designed and

developed for the defendants if the Flatizza was introduced in Subway restaurants nationwide, but instead

gave their design to a manufacturer run by the spouse

of a high ranking executive of Doctor’s Associates and

Franchise, from which they purchased the new plates

at a slightly lower price than that quoted to them by

the plaintiff. Although the conduct complained of by the

plaintiff might very well constitute a CUTPA violation

if the circumstances were as alleged, that claim is factually unsupported in this case. Cf. Milford Paintball,

LLC v. Wampus Milford Associates, LLC, 156 Conn.

App. 750, 765–66, 115 A.3d 1107, cert. denied, 317 Conn.

912, 116 A.3d 812 (2015) (persistent negligent misrepresentations intended to induce execution of subject lease

by plaintiff supported finding of unfairness under

CUTPA); Utzler v. Braca, 115 Conn. App. 261, 281, 972

A.2d 743 (2009) (builder’s material intentional misrepresentation that induced plaintiff to invest in project was

an unfair or deceptive practice that violated CUTPA).

There is no factual basis for the plaintiff’s claim that it

was unfairly induced to act to its own detriment in any

way. To the contrary, the evidentiary materials submitted to the trial court show that the plaintiff freely sold

the defendants a product and the design specifications

therefor that were unprotected, and thus fully available

to the defendants to use, refine or copy as they saw fit.

Therefore, we agree with the court’s determination that

there is no genuine issue of material fact that the defendants’ conduct did not amount to an unfair act or practice in violation of CUTPA, and thus that the defendants

were entitled to judgment on the plaintiff’s first two

claims as a matter of law.

General Statutes § 42-110b (a) provides: ‘‘No person

shall engage in unfair methods of competition and

unfair or deceptive acts or practices in the conduct

of any trade or commerce.’’ ‘‘It is well settled that in

determining whether a practice violates CUTPA [our

Supreme Court has] adopted the criteria set out in the

cigarette rule by the [F]ederal [T]rade [C]ommission

for determining when a practice is unfair: (1) [W]hether

the practice, without necessarily having been previously considered unlawful, offends public policy as

it has been established by statutes, the common law,

or otherwise—in other words, it is within at least the

penumbra of some common law, statutory, or other

established concept of unfairness; (2) whether it is
immoral, unethical, oppressive, or unscrupulous; (3)

whether it causes substantial injury to consumers,

[competitors or other businesspersons]. . . . All three

criteria do not need to be satisfied to support a finding

of unfairness. A practice may be unfair because of the

degree to which it meets one of the criteria or because

to a lesser extent it meets all three.’’ (Internal quotation

marks omitted.) Ulbrich v. Groth, 310 Conn. 375, 409,

78 A.3d 76 (2013).

A

The first prong of the cigarette rule requires us to

consider whether the alleged unfair practice offends

public policy to the extent that it constitutes a breach

of an established concept of unfairness. The plaintiff

argues that such a breach can be found in (1) the defendants’ inducement of the plaintiff to believe that it

would receive a contract for a large order of the new

plates, which allowed the defendants to obtain technical information for the plate’s product design, (2) giving

the plaintiff’s design for the new plate to a competitor

that had personal ties to the defendants, and (3) then

awarding the manufacturing contract for the new plates

to that competitor instead of to the plaintiff. The plaintiff does not explicitly state which public policies support its claims, arguing general unfairness instead. It

appears that the public policy basis for the plaintiff’s

first argument is equitable estoppel.

‘‘Strong public policies have long formed the basis

of the doctrine of equitable estoppel. The office of an

equitable estoppel is to show what equity and good

conscience require, under the particular circumstances

of the case, irrespective of what might otherwise be

the legal rights of the parties. . . . No one is ever

estopped from asserting what would otherwise be his

right, unless to allow its assertion would enable him to

do a wrong. . . . There are two essential elements to

an estoppel: the party [against whom it is asserted] must

do or say something which is intended or calculated to

induce another to believe in the existence of certain

facts and to act upon that belief; and the other party,

influenced thereby, must actually change his position

or do something to his injury which he otherwise would

not have done. Estoppel rests on the misleading conduct of one party to the prejudice of the other. In the

absence of prejudice, estoppel does not exist.’’ (Internal

quotation marks omitted.) Fischer v. Zollino, 303 Conn.

661, 668, 35 A.3d 270 (2012).

We agree with the trial court that the defendants’

prolonged negotiations with the plaintiff do not offend

public policy in such a way as to violate an established

concept of unfairness within the meaning of the first

prong of the cigarette rule. In rejecting the plaintiff’s

CUTPA claim, the trial court concluded that there was

no genuine issue of material fact that the defendants’

communications with the plaintiff about the design or
development of the new plate was misleading or

intended to induce the plaintiff to believe that it would

receive the contract. Although the defendants spent one

and one half years discussing the plaintiff’s potential

receipt of a contract for a large order of the new plates,

the plaintiff concedes that there never was such a contract and that throughout its dealings with the defendants it fully understood that Subway might decide to

forego a national rollout of the Flatizza, in which case

no order for the new plates it designed and developed

would ever be placed with anyone. Even if the defendants had explicitly stated that they intended to purchase plates from the plaintiff in the event of a

nationwide rollout of the Flatizza, it is undisputed that

any order was conditioned on the rollout’s occurrence.

Moreover, the defendants cautioned the plaintiff on

more than one occasion that it should not take any

actions in reliance on their exploratory conversations.

As noted by the trial court, the plaintiff hoped that it

would be chosen to manufacture a large order of plates

for the defendants and, from the e-mails discussing

production timelines, shipping details, and pricing, it

seemed for some time that that would happen; however,

the defendants never made any statements that would

lead the plaintiff reasonably to believe that a future

contract was guaranteed. Without any misleading statements or conduct on the part of the defendants, the

public policy underlying equitable estoppel was not violated by their conduct in violation of the first prong of

the cigarette rule.

The plaintiff further contends that the defendants

violated CUTPA by giving the plaintiff’s design to a

competitor. Here again, the plaintiff does not point this

court to any particular public policy which it claims to

have been violated by such conduct, thus establishing

its unfairness under the first prong of the cigarette rule.

In support of its argument, however, the plaintiff states

that during its dealings with the defendants it was seeking a patent for the modified heating plate and had

informed the defendants of these efforts. Therefore, we

consider whether the defendants’ actions violated any

established public policy related to the plaintiff’s efforts

to patent the new heating plate.

As an initial matter, it is undisputed that there was

no patent or confidentiality agreement in effect for the

plaintiff’s design at the time of its dealings with the

defendants. The most protection the product had was

the pending patent application that was not submitted

until August or September, 2013. It is disputed between

the parties as to whether the plaintiff ever informed

the defendants that it had filed a patent application for

the heating plate. The defendants deny being told by

the plaintiff that it had filed such an application. The

plaintiff claims that in September, 2012, representatives

from the plaintiff had met with representatives from

Doctor’s Associates and Franchise at Subway headquar-
ters to give them a status report on the heating plate

project and during that meeting it had noted that it was

in the process of applying for a design patent for the

new plate. The plaintiff also etched the words ‘‘Patent

Pending’’ on at least forty of the heating plates that

it sold to the defendants during the testing process.

However, these disputed facts are not material because,

even if we assume that the plaintiff informed the defendants of its pending patent application in September,

2012, and that the defendants, knowing this information, took the plaintiff’s plate design to a competitor,

these acts would not have violated any established public policy.

‘‘To willfully infringe a patent, the patent must exist

and one must have knowledge of it. . . . Filing an

application is no guarantee any patent will issue and a

very substantial percentage of applications never result

in patents.’’ (Emphasis omitted; internal quotation

marks omitted.) State Industries, Inc. v. A.O. Smith

Corp., 751 F.2d 1226, 1236 (Fed. Cir. 1985). There is a

‘‘strong federal policy favoring the full and free use of

ideas in the public domain.’’ Lear, Inc. v. Adkins, 395

U.S. 653, 674, 89 S. Ct. 1902, 23 L. Ed. 2d. 610 (1969).

‘‘[P]atent laws have embodied a careful balance

between the need to promote innovation and the recognition that imitation and refinement through imitation

are both necessary to invention itself and the very lifeblood of a competitive economy.’’ Bonito Boats, Inc.

v. Thunder Craft Boats, Inc., 489 U.S. 141, 146, 109 S.

Ct. 971, 103 L. Ed. 2d 118 (1989).

By informing the defendants that they were in the

process of applying for a patent and marking their product ‘‘Patent Pending,’’ the plaintiff merely gave notice

that the plate might be subject to future protection. The

plaintiff argues that the trial court erred in its analysis

of the defendants’ conduct under the first and second

prongs of the cigarette rule by requiring the plaintiff to

have taken reasonable measures to avoid the injury,

which is only required under prong three of the rule.

We disagree with the plaintiff’s interpretation of the

trial court’s decision and conclude that the steps taken

to protect the heating plates, as referenced by the trial

court, are relevant to determine whether the defendants’ actions were unfair under the circumstances.

Here, Doctor’s Associates made several arm’s length

purchases of these unprotected products from the plaintiff over the course of a year and a half. The defendants

were free to do as they wished with the plaintiff’s products that they purchased in that time frame, including

showing those products, which they then owned without restriction, to other companies and asking those

companies to refine the products’ design. The public

policy underlying our patent law supports such imitation and refinement. Thus, it cannot be said that the

defendants’ conduct in so doing violated any established concept of unfairness.
Finally, the plaintiff argues that the defendants’ committed an unfair act or practice by causing it to engage

in a ‘‘sham ‘bidding’ process,’’ in the course of which

it was forced to bid against only one competitor with

personal ties to the defendant companies that had been

given the plaintiff’s design with which to prepare and

submit its competing bid. Nothing about the fact that

the defendants gave the contract to a manufacturer run

by the spouse of the president of Doctor’s Associates

and Franchise offends public policy. It is well established that a trader or manufacturer carrying on an

entirely private business is free to determine with whom

it will deal. See United States v. Freight Assn., 166 U.S.

290, 320–21, 17 S. Ct. 540, 41 L. 3d. 1007 (1897). Further,

there is nothing about the fact that there were only two

companies bidding for the contract that is inherently

unfair.

In reaching our conclusion, we are mindful that in

Landmark Investment Group, LLC v. CALCO Construction & Development Co., 318 Conn. 847, 882, 124

A.3d 847 (2015), our Supreme Court concluded that the

‘‘trial court acted improperly when, rather than considering what inferences could have been drawn by the

jury from the totality of the defendants’ conduct, it

parsed [the plaintiff’s] allegations and concluded that

each of the defendants’ acts did not meet the standard

necessary to prove a violation of CUTPA.’’ An individual

examination of each of the defendants’ discrete acts is

necessary to analyze the public policy implications of

the totality of the conduct. When considering the totality of the defendants’ conduct—of negotiating with the

plaintiff over a substantial period of time without making any misrepresentations, giving another manufacturer the plaintiff’s unprotected design to reverse

engineer and refine, and granting a contract to a manufacturer with ties to the defendant companies, which

it was free to do—such conduct does not amount to a

violation under CUTPA. Therefore, we conclude that

the defendants’ actions do not violate the first prong

of the cigarette rule.

B

Under the second prong of the cigarette rule, we

must consider whether the defendants’ actions were

‘‘immoral, unethical, oppressive or unscrupulous.’’

(Internal quotation marks omitted.) Johnson Electric

Co. v. Salce Contracting Associates, Inc., 72 Conn. App.

342, 357, 805 A.2d 735, cert. denied, 262 Conn. 922, 812

A.2d 864 (2002). Whether conduct so qualifies is not

controlled by ‘‘a global standard but rather must reflect

the particular circumstances of the case.’’ Id. ‘‘A trade

practice that is undertaken to maximize the defendant’s

profit at the expense of the plaintiff’s rights comes

under the second prong of the cigarette rule.’’ Votto v.

American Car Rental Inc., 273 Conn. 478, 485, 871 A.2d

981 (2005).
In Johnson Electric Co., the defendant general contractor submitted a bid for a contract on a construction

project in which it named the plaintiff as the subcontractor it would use to complete the project if the bid were

awarded, but hired a different subcontractor after the

bid was awarded when the plaintiff refused its request

to reduce its quoted price. Johnson Electric Co. v. Salce

Contracting Associates, Inc., supra, 72 Conn. App. 346.

An attorney trial referee found that it was industry

practice that a subcontractor named in a successful bid

would receive a subcontract for the work it had quoted

when the contract was awarded on the basis of that

quote. Id. The trial court, rejecting the report of the

attorney trial referee, found that the plaintiff had not

proven its CUTPA claim. Id., 344. In reversing the trial

court, this court found that the defendant’s conduct

met the second prong of the cigarette rule because

it deliberately refused to conform its conduct to the

established industry practice for the admitted purpose

of maximizing its profit, and thereby caused substantial

injury to the plaintiff. Id., 357.

In Glazer v. Dress Barn, Inc., 274 Conn. 33, 873 A.

2d 929 (2005), by contrast, the plaintiffs argued that the

defendant had violated the second prong of the cigarette

rule by inducing them to believe that the defendant

would either provide financing for a deferred billing

program or close on the proposed acquisition of the

plaintiff’s company. See id., 48. It was undisputed that

there was no enforceable agreement between the parties for either the financing or the acquisition. See id.,

85. The plaintiff’s theory at trial was that the defendant

initially intended to provide financing to the plaintiff

but then changed its mind when the cost estimates

changed for the program. Id., 81. In concluding that

there was no CUTPA violation, our Supreme Court

stated that the defendant ‘‘expressly retained the right

not to proceed with the acquisition. Thus, [a]lthough the

plaintiffs hoped and even expected that [the defendant]

would [complete the acquisition], [the defendant] was

under no statutory or contractual obligation to do so.

Under those circumstances, [the defendant] did not violate CUTPA by declining to do that which it simply was

not required to do. The analysis does not differ because

the plaintiffs, effectively, gambled on an expectation

that [the defendant] would choose to proceed differently than it did and, subsequently, lost that gamble.’’

(Internal quotation marks omitted.) Id., 83–84.

In the present case, the defendants’ behavior in not

hiring the plaintiff to produce the new heating plates

it had designed to implement the nationwide rollout of

the Flatizza, unlike that of the defendants in Johnson

Electric Co. in declining to hire the plaintiff as a subcontractor on the project for which it had bid successfully

on the basis of the plaintiff’s quote, did not violate any

established trade or industry practice or public policy,
as discussed in the part I A of this opinion, or thus

qualify, on that basis, as ‘‘immoral, unethical, oppressive

or unscrupulous’’; (internal quotation marks omitted)

Johnson Electric Co. v. Salce Contracting Associates,

Inc., supra, 72 Conn. App. 357; under the second prong

of the cigarette rule. Rather, like the defendant in Glazer

that declined to provide financing for or to buy out the

plaintiff’s company, the defendants here, by not hiring

the plaintiff to manufacture the new heating plates for

the rollout of the Flatizza, merely declined to do something that they were not legally required to do despite

the disappointed plaintiff’s hope or expectation to

the contrary.

As for taking the plaintiff’s design to a competitor

with ties to the defendant companies, for the same

reasons articulated in part I A of this opinion, there

was nothing ‘‘immoral, unethical, oppressive or unscrupulous’’; (internal quotation marks omitted) Johnson

Electric Co. v. Salce Contracting Associates, Inc.,

supra, 72 Conn. App. 357; about the defendants’ behavior, for it did not infringe on the plaintiff’s rights in

any way and involved no more than taking a legally

unprotected product, which the defendants had duly

purchased and therefore owned without restriction, to

another manufacturer to improve upon its design and,

so improved, to manufacture and sell it. We conclude

that such fully lawful conduct was not immoral, unethical, oppressive or unscrupulous in any way, and thus

did not violate the second prong of the cigarette rule.

C

The third prong of the cigarette rule requires us to

consider whether the defendants’ actions caused substantial injury to the plaintiff. Under this prong, ‘‘[t]o

justify a finding of unfairness the injury must satisfy

three tests. It must be substantial; it must not be outweighed by any countervailing benefits to consumers

or competition that the practice produces; and it must

be an injury that consumers themselves could not reasonably have avoided.’’ (Internal quotation marks omitted.) McLaughlin Ford, Inc. v. Ford Motor Co., 192

Conn. 558, 569–70, 473 A.2d 1185 (1984).

The plaintiff alleges that the injury it suffered as a

result of the defendants’ conduct was the loss of an

expected order of approximately 25,000 plates. We

agree with the trial court that this loss was substantial

for the plaintiff, at a price of $67.27 per plate. There

are no facts to suggest that the cost savings for the

defendants in purchasing from VTM Concepts in any

way passed through to the consumer so as to establish

a countervailing benefit that outweighs the injury. We

agree with the trial court, however, that this injury was

one that the plaintiff reasonably could have avoided

by the simple expedient of obtaining a confidentiality

agreement or some other stopgap measure to protect

its product design until the patent it had applied for was
issued. This is especially true considering that Doctor’s

Associates had the plaintiff sign a nondisclosure

agreement at the outset of their business relationship,

at which point the plaintiff could have requested such

an agreement to protect their design in return. Instead,

by proceeding without such protection for its work

product, the plaintiff freely allowed the defendants to

take its design to a competitor that might in turn refine

it or simply manufacture it, with or without refinements,

more cheaply. Because this result reasonably could

have been avoided, the plaintiff fails to meet the third

requirement of the third prong of the cigarette rule.

In conclusion, because the plaintiff’s claims fail to

meet any prong of the cigarette rule, we agree with the

trial court’s conclusion that there is no genuine issue

of material fact that the defendants committed no unfair

acts or practices in violation of CUTPA.

II

The plaintiff next claims that the court improperly

concluded that there was no genuine issue of material

fact as to whether the defendants’ conduct constituted

a deceptive act or practice under CUTPA. We disagree.

An act or practice is deceptive if three requirements

are met. ‘‘First, there must be a representation, omission, or other practice likely to mislead consumers.

Second, the consumers must interpret the message reasonably under the circumstances. Third, the misleading

representation, omission, or practice must be material—that is, likely to affect consumer decisions or conduct.’’ (Internal quotation marks omitted.) Caldor, Inc.

v. Heslin, 215 Conn. 590, 597, 577 A.2d 1009 (1990),

cert. denied, 498 U.S. 1088, 111 S. Ct. 966, 112 L. Ed.

2d 1053 (1991). ‘‘[A] party need not prove an intent to

deceive to prevail under CUTPA.’’ Cheshire Mortgage

Service, Inc. v. Montes, 223 Conn. 80, 106, 612 A.2d

1130 (1992).

Here, the plaintiff alleges that the defendants misrepresented to the plaintiff that it would receive a contract

for a large order of heating plates. As discussed in part

I of this opinion, however, there is no evidence of any

misrepresentation, omission, or practice likely to mislead the plaintiff to believe that it would receive such

a contract. The parties negotiated the details of a potential order for a prolonged period of time, but there is

no evidence that the defendants made any misrepresentations during that period. To the extent that the plaintiff is arguing that the defendants should have informed

it explicitly that they were soliciting bids from others

and that one potential bidder had been given its design

upon which to formulate its own bid, such omissions

do not amount to a CUTPA violation because the defendants were under no duty to so inform it.

‘‘[Our Supreme Court has] held that [a] failure to

disclose can be deceptive only if, in light of all the
circumstances, there is a duty to disclose.’’ (Internal

quotation marks omitted.) Glazer v. Dress Barn, Inc.,

supra, 274 Conn. 84. ‘‘Regarding the duty to disclose,

the general rule is that . . . silence . . . cannot give

rise to an action . . . to set aside the transaction as

fraudulent. Certainly this is true as to all facts which are

open to discovery upon reasonable inquiry.’’ (Internal

quotation marks omitted.) Id. ‘‘A duty to disclose may

be imposed by statute or regulation . . . or such a duty

may arise under common law.’’ (Citation omitted.) Id.,

85. As correctly noted by the defendants Doctor’s Associates and Franchise, the plaintiff has not identified any

basis for imposing a duty upon them to disclose the

details of the bidding process, and we have found no

authority establishing such a duty under these circumstances. Therefore, the defendants did not commit a

deceptive act or practice by that omission. For these

reasons, we conclude that the defendants were also

entitled to summary judgment on the plaintiff’s claims

that they committed deceptive acts or practices in violation of CUTPA.

III

The plaintiff’s final claim is that the court erred in

concluding that there was no genuine issue of material

fact as to whether the defendants were unjustly

enriched to the plaintiff’s detriment by the defendants’

alleged conduct. Specifically, it argues that the defendants were unjustly enriched by retaining the benefit

of the research and development efforts that the plaintiff put into the design of the new heating plate.

‘‘A right of recovery under the doctrine of unjust

enrichment is essentially equitable, its basis being that

in a given situation it is contrary to equity and good

conscience for one to retain a benefit which has come

to him at the expense of another. . . . With no other

test than what, under a given set of circumstances, is

just or unjust, equitable or inequitable, conscionable or

unconscionable, it becomes necessary in any case

where the benefit of the doctrine is claimed, to examine

the circumstances and the conduct of the parties and

apply this standard. . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible

remedy. . . . Plaintiffs seeking recovery for unjust

enrichment must prove (1) that the defendants were

benefited, (2) that the defendants unjustly did not pay

the plaintiffs for the benefits, and (3) that the failure

of payment was to the plaintiffs’ detriment.’’ (Internal

quotation marks omitted.) New Hartford v. Connecticut

Resources Recovery Authority, 291 Conn. 433, 451–52,

970 A.2d 592 (2009).

Although the defendants benefited from the time and

effort it took the plaintiff to design the custom heating

plate prototype, there is no evidence that they did not

compensate the plaintiff fully for that benefit. To the

contrary, there is evidence that the defendants paid the
plaintiff several times, each time they purchased one

or more plates for product and market testing. The

plaintiff could have charged the defendants higher

prices when it sold the defendants those plates for the

labor and time it had spent developing the designs for

them. The fact that it elected not to do so and that the

design of the new plate was not protected does not

convert the time it spent perfecting that design into an

unpaid for benefit for which compensation is due to

it in equity from the defendants. Because there is no

evidence that the defendants failed to pay the plaintiff

for any benefit they received, we conclude that the

court did not err in rendering summary judgment for the

defendants on the plaintiff’s unjust enrichment claim.

The judgment is affirmed.

In this opinion the other judges concurred.