NASS-ROMERO V. VISA U.S.A. INC., 2012-NMCA-058,
279 P.3d 772
LISA NASS-ROMERO, on behalf of herself
and all others similarly situated, Plaintiff-Appellant,
v.
VISA U.S.A. INC. and MASTERCARD INTERNATIONAL
INCORPORATED, Defendants-Appellees.
COURT OF APPEALS OF NEW MEXICO
2012-NMCA-058, 279 P.3d 772
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY, Sarah
M. Singleton, District Judge.
Released for Publication June 19, 2012.
Youtz & Valdez, P.C., Shane C. Youtz,
Albuquerque, NM, Cuneo Gilbert & LaDuca, LLP, Jonathan W. Cuneo,
Washington, D.C., Cuneo Gilbert & LaDuca, LLP, Daniel Cohen, Alexandria,
VA, Law Offices of Gordon Ball, Gordon Ball, Knoxville, TN, Hagens Berman LLP,
George Samson, Seattle, WA, for Appellant.
Jones, Snead, Wertheim & Wentworth,
P.A., Jerry Todd Wertheim, Santa Fe, NM, Paul, Weiss, Rifkind, Wharton &
Garrison LLP, Kenneth A. Gallo, Washington, D.C., Gary R. Carney, New York, NY,
for Appellee MasterCard International Incorporated.
Rodey, Dickason, Sloan, Akin & Robb,
P.A., Leslie McCarthy Apodaca, Albuquerque, NM, Arnold & Porter LLP, Robert
C. Mason, New York, NY, for Appellee Visa U.S.A. Inc.
CELIA FOY CASTILLO, Chief Judge. WE
CONCUR: CYNTHIA A. FRY, Judge, RODERICK T. KENNEDY, Judge.
AUTHOR: CELIA FOY CASTILLO.
{1} Plaintiff
Nass-Romero, seeking to represent a class of New Mexico consumers, brought suit
against two credit card companies alleging common law claims, violations of the
New Mexico Antitrust Act (NMAA), NMSA 1978, Sections
57-1-1 through -15 (1891,
as amended through 1987), and violations of the New Mexico Unfair Practices Act
(UPA), NMSA 1978, Sections
57-12-1 through -26 (1967, as amended through 2009).
The district court dismissed the complaint. Plaintiff appeals the dismissal of
only those claims under the NMAA. We affirm.
{2} We begin by
providing a short history of the events leading to the filing of this
complaint. In 1996, merchants and retail trade associations sued Visa U.S.A.
Inc., and MasterCard International Incorporated (Visa, MasterCard, or,
together, Defendants) alleging that Defendants violated federal antitrust laws
by forcing merchants who accepted their credit cards in the regular course of
business to also accept the companies’ debit cards.
See In re Visa
Check/MasterMoney Antitrust Litig., 192 F.R.D. 68, 73 (E.D.N.Y. 2000),
aff’d,
280 F.3d 124 (2d Circ. 2001). The merchants claimed that such a “tying”
arrangement was an attempt to monopolize the debit card market, forcing the
merchants to pay debit card fees that were higher than those provided by other
debit networks.
See id. A class of more than four million merchants was
certified in 2000.
See id. at 73. In 2003, the parties settled, and Visa
and MasterCard agreed to pay more than $3 billion into a settlement fund.
See
In re Visa Check/MasterMoney Antitrust Litig., 297 F. Supp. 2d 503, 506-07
(E.D.N.Y. 2003). The settlement was approved by the court,
see id. at
512, and affirmed at the appellate level.
See Wal-Mart Stores, Inc. v. Visa
U.S.A., Inc., 396 F.3d 96, 124 (2d Cir. 2005).
{3} On the heels of
that massive lawsuit and settlement, consumers in eighteen other states and the
District of Columbia filed class-action suits against Defendants alleging
violations of the individual states’ antitrust laws and, in some cases,
violations of the states’ consumer protection laws. The consumers claimed that
the tying arrangements that resulted in higher debit processing fees for
merchants forced those merchants to pass the cost along to all consumers in the
form of higher prices for all retail goods subsequently sold. Courts dismissed
the consumer cases in fourteen states and in the District of Columbia.
1 In two states, Florida and Nevada,
consumers voluntarily dismissed their complaints. In West Virginia, the state
attorney general brought a
parens patriae action on behalf of the
state’s consumers, and the attorney general decided to settle the case after the
district court denied Defendants’ motion for summary judgment.
See W. Va. v.
Visa U.S.A., Inc., Civil Action No. 30-C-551 (Memorandum Order Denying
Defendants’ Motion for Summary Judgment, Oct. 14, 2005); Darrell V. McGraw,
Jr.,
2009 Annual Report: The West Virginia Attorney General’s Report on the
Activities of the Consumer Protection and Antitrust Divisions, 62-63,
http://www.wvago.gov/pdf/annualreports/2009_report.pdf.
{4} In New Mexico,
Plaintiff filed a 186-paragraph complaint with essentially the same allegations
as claimed in the suits filed by the merchants in the federal action and by
other state consumers—that the anti-competitive behavior of Visa and MasterCard
regarding their debit card fee-processing system forced merchants to pass on
costs to consumers. Specifically, Plaintiff claims she bought retail goods from
“one or more [m]erchants located in New Mexico who were forced by Visa and/or
MasterCard to accept their customers’
Visa Check and/or
MasterMoney
debit cards when those debit cards were presented by them for payment as a
condition of being able to accept Visa and/or MasterCard credit cards.” She
also alleges that Visa and MasterCard’s debit card transaction fees are
significantly higher than the fees charged by providers of debit services and
that the alleged debit card scheme imposes a hidden sales tax on every retail
transaction affecting hundreds of thousands of consumers in New Mexico,
regardless of whether a credit or debit transaction took place during a given
purchase. Plaintiff also seeks class certification on behalf of “tens of
thousands” of New Mexico consumers who have made purchases of any number of
goods from merchants who accepted Visa and MasterCard’s credit and debit cards
as a form of payment.
{5} Six years into the proceedings,
the district court granted Defendants’ motion to dismiss. It ruled that
Plaintiff did not have standing to bring a claim under either the NMAA or the
UPA and that Plaintiff failed to state a claim under the UPA. The district
court dismissed the common law claims of unjust enrichment and of money had and
received, finding that Defendants realized no benefit in the alleged scheme. In
this appeal, Plaintiff limits her challenge to the dismissal of her claims
under the NMAA. Specifically she argues that the district court erred (1) in
determining that Plaintiff’s injuries were too remote to provide standing to
bring suit under the NMAA; and (2) in failing to find that Plaintiff was within
the target area of the actions of Visa and MasterCard.
{6} A motion to dismiss
“is infrequently granted because its purpose is to test the law of the claim,
not the facts that support it.”
Envtl. Improvement Div. v. Aguayo,
99
N.M. 497, 499,
660 P.2d 587, 589 (1983). In reviewing a district court’s
decision to dismiss for failure to state a claim, “we accept as true all
well-pleaded factual allegations in the complaint and resolve all doubts in
favor of the complaint’s sufficiency.”
N.M. Pub. Schs. Ins. Auth. v. Arthur
J. Gallagher & Co.,
2008-NMSC-067, ¶ 11,
145 N.M. 316,
198 P.3d 342. “A
Rule [1-0]12([B])(6) [NMRA] motion is
only proper when it appears that
plaintiff can neither recover nor obtain relief under any state of facts
provable under the claim.”
Valdez v. State,
2002-NMSC-028, ¶ 4,
132 N.M.
667,
54 P.3d 71 (internal quotation marks and citation omitted). “A district
court’s decision to dismiss a case for failure to state a claim under Rule
1-012(B)(6) is reviewed de novo.”
Valdez,
2002-NMSC-028, ¶ 4. “Whether a
party has standing to litigate a particular issue is a question of law, which
we review de novo.”
City of Sunland Park v. Santa Teresa Servs. Co.,
2003-NMCA-106, ¶ 39,
134 N.M. 243,
75 P.3d 843.
B. Plaintiff
Lacks Standing to Bring a Claim Under the NMAA
{7} We turn first to
Plaintiff’s assertion of error in the district court’s dismissal of the action
for lack of standing. “Dismissals under Rule 1-012(B)(6) are proper when the
claim asserted is legally deficient.”
Delfino v. Griffo,
2011-NMSC-015,
¶ 9,
150 N.M. 97,
257 P.3d 917. A plaintiff’s standing is a “jurisdictional
prerequisite to an action.”
ACLU of N.M. v. City of Albuquerque,
2008-NMSC-045, ¶ 9 n.1,
144 N.M. 471,
188 P.3d 1222 (internal quotation marks
and citation omitted).
{8} To evaluate whether
Plaintiff has standing sufficient to assert a claim here, we look at the text
of the NMAA. Antitrust legislation barring monopolistic restraint of trade
began with the federal Sherman Antitrust Act (Sherman Act), enacted by Congress
in 1890.
See 15 U.S.C. §§ 1 through 7 (2004). One year later, in 1891,
the New Mexico Territorial Legislature enacted the NMAA that is based on the
Sherman Act.
See §§ 57-1-1 through -19. In 1914, Congress enacted a
follow-up statute, the Clayton Act, to bolster the original act’s enforcement
mechanisms.
See 15 U.S.C. § 15(a). The NMAA contains a similar provision
and allows recovery to “any person threatened with injury or injured in his
business or property” by a violation of the NMAA. Section 57-1-3.
{9} Our determination
regarding standing involves a question of statutory interpretation that in turn
involves an understanding of the interplay between federal and state antitrust
law. The NMAA “shall be construed in harmony with judicial interpretations of
the federal antitrust laws. This construction shall be made to achieve uniform
application of the state and federal laws prohibiting restraints of trade and
monopolistic practices.” Section 57-1-15. According to our Supreme Court,
“[t]he underlying purposes behind both the federal and state [l]aws are the
same, to establish a public policy of first magnitude; that is, promoting the
national interest in a competitive economy.”
United Nuclear Corp. v. Gen.
Atomic Co.,
93 N.M. 105, 125,
597 P.2d 290, 310 (1979) (internal quotation marks
and citation omitted). Recently, the Court reaffirmed that the state and
federal antitrust statutes should be read in harmony: “It is therefore the duty
of the courts to ensure that New Mexico antitrust law does not deviate
substantially from federal interpretations of antitrust law.”
Romero v.
Philip Morris Inc.,
2010-NMSC-035, ¶ 18,
148 N.M. 713,
242 P.3d 280. New
Mexico courts therefore look to federal antitrust law to determine the meaning
of provisions of the NMAA.
See State v. Ray Bell Oil Co.,
101 N.M. 368,
370,
683 P.2d 50, 52 (Ct. App. 1983).
{10} With this as a
background, we now turn to Plaintiff’s challenge to the district court’s
finding that she lacked standing under the NMAA. New Mexico has adopted a
three-part test to address standing in general: “To acquire standing to
litigate a particular issue, a party must demonstrate (1) an injury in fact,
(2) a causal relationship between the injury and the challenged conduct, and
(3) a likelihood that the injury will be redressed by a favorable decision.”
City
of Sunland Park,
2003-NMCA-106, ¶ 40 (internal quotation marks and
citations omitted). Plaintiff here asks us to break the standing question into
several parts—the above three-step analysis as well as a discussion of whether
consumers were in the “target area” of Defendants’ actions or whether the harm
to Plaintiff that flowed from Defendants’ actions was “foreseeable” enough to
create standing in Plaintiff. We decline Plaintiff’s invitation because her
suggested tangents are subsumed into the basic analysis of standing. “Even
where a party demonstrates these three elements, standing may be denied if the
interest the complainant seeks to protect is not within the ‘zone of interests’
protected or regulated by the statute or constitutional provision the party is
relying upon. The concepts of injury and zone of interest are thus
intertwined.”
Id. In support of her position, Plaintiff cites
Key v.
Chrysler Motors Corp.,
1996-NMSC-038,
121 N.M. 764, 768,
918 P.2d 350, 354,
for the proposition that a claimant must show “that the interest sought to be
protected by the complainant is arguably within the zone of interests to be
protected or regulated by the statute[,]” and she contends that she meets this
test.
Id. (internal quotation marks and citation omitted). We first
observe that this is not an antitrust case. And while we agree that the cited
statement is contained in
Key, there is more.
Key goes on to
state that in order to assess a plaintiff’s standing “we must look to the
Legislature’s intent as expressed in the [applicable] Act or other relevant
authority.”
Id. Here, the Legislature has clearly spoken, requiring that
the NMAA be interpreted in harmony with federal law.
{11} Plaintiff also
argues that she should have standing because the economic effect on her and
other consumers was foreseeable. This argument has been considered elsewhere
and, like those other courts, we decline to adopt such a standard for antitrust
cases.
See Reibert v. Atlantic Richfield Co., 471 F.2d 727, 731 (10th
Cir. 1973) (“Antitrust violations admittedly create foreseeable ripples of
injury to individual stockholders, consumers[,] and employees, but the law has
not allowed all of these standing to sue for treble damages.”);
Southard,
734 N.W.2d at 197 (stating in a parallel case against Visa and MasterCard that
“[t]he remoteness doctrine is not based upon a factual inquiry to determine
whether the damages claimed were foreseeable or whether they were a proximate
cause; rather, it is a legal doctrine incorporating public policy
considerations” (internal quotation marks and citation omitted));
Fucile,
2004 WL 3030037, at *4 (stating in a parallel case against Visa and MasterCard
that “[t]he defendants could not be expected to foresee an antitrust violation
affecting merchants to result in increased cost of goods throughout the entire
consumer base and to so injure that consumer base as to result in liability to
every consumer in the country”). Instead, we follow the direction of the NMAA
itself, rely on the general guidance regarding standing found in
Key,
and conduct a standing analysis for the NMAA that is in harmony with federal
court interpretations of antitrust jurisprudence.
See City of Sunland Park,
2003-NMCA-106, ¶ 41 (“Cases in New Mexico are clear that injury—whether actual
or threatened—is not enough by itself to confer standing. To be accorded
standing on a particular issue the party must show that the statute or
constitutional provision relied on reaches or provides protection against the
injury.”).
{12} Having rejected the
alternative approaches put forth by Plaintiff, we proceed to evaluate whether
Plaintiff has standing based on the provisions of the NMAA and on federal
antitrust jurisprudence. Both parties agree that the relevant precedent guiding
a standing analysis in federal antitrust litigation is
Associated Gen.
Contractors v. California State Council of Carpenters (
AGC), 459
U.S. 519 (1983). There, the United States Supreme Court suggested that the
loose concepts of “zone of interest” and “foreseeability” are not adequate to
confer standing.
An
antitrust violation may be expected to cause ripples of harm to flow through
the [n]ation’s economy; but despite the broad wording of [15 U.S.C.] § 4 there
is a point beyond which the wrongdoer should not be held liable. It is
reasonable to assume that Congress did not intend to allow every person
tangentially affected by an antitrust violation to maintain an action to
recover threefold damages for the injury to his business or property.
It
is plain, therefore, that the question whether the [plaintiff] may recover for
the injury it allegedly suffered by reason of the defendants’ coercion against
certain third parties cannot be answered simply by reference to the broad
language of [15 U.S.C.] § 4.
Id. at 534-35 (internal quotation marks and citations
omitted).
{13} In
AGC, the
Court was concerned with “keeping the scope of complex antitrust trials within
judicially manageable limits.”
Id. at 543. In this regard, the
AGC
Court set out five factors to consider in analyzing the issue of standing: (1)
whether the plaintiffs were participants in the allegedly restrained market;
(2) the directness of the plaintiff’s alleged harm; (3) whether there is a
better potential plaintiff; (4) whether the plaintiff’s theory of damages is
speculative; and (5) the complexity of apportioning damages and the risk of
duplicative liability.
Id. at 538-45. We now turn to each of the factors
and evaluate them based on Plaintiff’s allegations.
{14} The market at issue
is the debit processing service of Visa and MasterCard that involves
Defendants, their member banks, and the merchants who honor their cards.
Plaintiff is neither a consumer nor a competitor in the market allegedly being
restrained by Defendants and does not appear in that chain of distribution;
thus, she cannot be identified as a consumer of the service provided by Visa
and MasterCard. Plaintiff, instead, is a consumer of goods sold by merchants
who happen to be part of the affected market. Other jurisdictions agree.
See,
e.g.,
Kanne, 723 N.W.2d at 298 (concluding that the
consumer-plaintiffs were “not competitors in the allegedly affected market,
which is the business of providing debit network processing services to
merchants . . . [n]or . . . consumers of those services”);
Southard, 734
N.W.2d at 199 (characterizing consumer plaintiffs as “neither consumers of the
defendants’ products nor competitors of the defendants”).
{15} Here, Plaintiff
alleges that Defendants’ tying arrangements led to “exorbitant fees . . .
passed on to . . . Plaintiff and [c]lass members in the form of artificially
higher and advanced prices.” Plaintiff’s allegations do not show that she was
directly harmed by the actions of Visa and MasterCard; nor do they show that
she was indirectly harmed through the chain of distribution of the debit card
services. The alleged harm caused by Defendants’ tying scheme takes an abrupt
left turn after reaching the merchants and branches off into supposed higher prices
for all goods throughout New Mexico, mutating into a different form of harm to
consumers. Plaintiff’s injury is better characterized as remote or derivative.
See
Southard, 734 N.W.2d at 199 (“Clearly, the injuries alleged by the
plaintiffs are not even indirect, as the plaintiffs are not in the chain of
distribution. Their injuries are better described as derivative.”);
Ho,
793 N.Y.S.2d at 9 (“Those injuries are too remote and derivative to countenance
such a cause of action.”).
{16} In the case before
us, Plaintiff is a consumer who is not directly affected by the alleged tying
arrangement. The better plaintiffs to challenge Defendants’ business practices
have already come forward. They are the merchants themselves, led by Wal-mart,
who first brought suit in 1996 and who settled with Visa and MasterCard in
2003, setting up a $3.1 billion fund to make whole the merchants affected by
debit card transaction fees. Preventing Plaintiff here from bringing a claim
under the NMAA will not “leave a significant antitrust violation undetected or
unremedied.”
AGC, 459 U.S. at 542;
see Ho, 793 N.Y.S.2d at
9 (finding that Visa and MasterCard “have been subjected to judicial
remediation for their wrongs, and any recovery here would be duplicative”).
{17} We now evaluate the
nature of Plaintiff’s alleged damages. Plaintiff asserts that her damages are
based on the overcharges she paid on every retail item she bought from every
merchant in New Mexico that accepted Visa and MasterCard credit and debit cards
over the course of several years. By way of example, Plaintiff would ask a
court to find that paying, say, $1.99 for a dozen eggs rather than $1.89 during
a random shopping trip to a particular grocer was the indirect result of the
excessive debit card transaction fees paid by the grocer to the member banks of
Visa and MasterCard. Plaintiff would be alleging that for this particular
purchase, and for the millions of small purchases made by “tens of thousands”
of New Mexicans at dozens or perhaps hundreds of retail outfits throughout the
state, the merchant chose not to absorb the debit card transaction fee but
rather passed that cost on to the consumer. Such a calculation would ignore the
countless considerations that go into the set price of any given product at any
given store on any given day.
See Kanne, 723 N.W.2d at 299 (stating that
“the claimed price increases over a period of years could have resulted from
myriad independent reasons unrelated to the alleged violation” (internal
quotation marks and citation omitted)). Because the alleged damages could have
been produced by numerous independent factors, Plaintiff’s damage claim is
speculative.
5. Complexity
of Apportioning Damages; Risk of Duplicative Liability
{18} The United States
Supreme Court has emphasized “the importance of avoiding either the risk of
duplicate recoveries on the one hand, or the danger of complex apportionment of
damages on the other.”
AGC, 459 U.S. at 543-44. The Court feared that
such damage calculations “would often require additional long and complicated
proceedings involving massive evidence and complicated theories.”
Id. at
544 (internal quotation marks and citation omitted). As the Maine Superior
Court stated in a parallel case against Defendants,
[t]o determine what portion of any
overcharge was passed on by any given merchant, with respect to which products,
and to which consumers is a task of monumental uncertainty and complexity.
Depending on their other costs, their competitive position in the market, their
profit margins, and the specific products they sold, some merchants could have
absorbed a substantial portion of any overcharge instead of passing it on.
Knowles, 2004 WL 2475284, at *6. “For any given
consumer, the issue is even more complicated and speculative because the
inquiry would involve what items that particular consumer purchased, what that
consumer paid for each item, and what percentage of overcharge, if any, was
contained in that price.” Id.; see Kellen S. Dwyer, With the Illinois
Brick Wall Down, What’s Left? Determining Antitrust Standing Under State Law,
3 J. Bus. Entrepreneurship & the Law 255, 279 (2010) (hereinafter Dwyer)
(“Showing the pass-on would require an estimation of the elasticity of demand
for almost every product sold in the state. Even if that feat were possible, it
is hard to imagine how the funds could be apportioned.”). In addition, the risk
of duplicative liability is apparent. Defendants settled with merchants nine
years ago for more than $3 billion and thus were made to pay for the alleged
antitrust violations. Under Plaintiff’s theory of the case, merchants who
benefitted from the settlement could conceivably have turned around and lowered
the prices of their goods, thus providing consumers with relief from any
previously passed-along costs emanating from the debit card transaction fees.
Apportioning damages would be a complex task, and there is a risk of
duplicative damages.
{19} The
AGC
factors do not fall in Plaintiff’s favor. Taking the factors in sum, we
conclude that Plaintiff’s claim fails the test and fails to prove she has
standing to bring a claim under the NMAA.
{20} As an alternative,
Plaintiff argues that
AGC should not apply to her claim at all because
the facts of
AGC can be distinguished from the facts of her case.
Plaintiff points out that she is a consumer facing overcharges, whereas the
plaintiff labor union in
AGC was not a consumer and was not subject to
overcharges. However, the Court in
AGC made it clear that its
five-factor analysis applied to the broad spectrum of antitrust claims,
including those involving consumers.
See 459 U.S. at 538 (stating that
“the Sherman Act was enacted to assure customers the benefits of price
competition, and our prior cases have emphasized the central interest in
protecting the economic freedom of participants in the relevant market”). And
the author of
AGC, Justice Stevens, more recently reiterated the broad
application of that five-factor analysis.
See Verizon Commc’ns Inc. v. Law
Offices of Curtis V. Trinko, 540 U.S. 398, 416 (2004) (Stevens, Souter
& Thomas, JJ., concurring) (applying the
AGC factors and reasoning
that “we have eschewed a literal reading of [15 U.S.C.] § 4, particularly in
cases in which there is only an indirect relationship between the defendant’s
alleged misconduct and the plaintiff’s asserted injury”);
see also Hawaii
v. Standard Oil Co., 405 U.S. 251, 264 n.14 (1972) (“The lower courts have
been virtually unanimous in concluding that Congress did not intend the
antitrust laws to provide a remedy in damages for all injuries that might
conceivably be traced to an antitrust violation.”). We conclude that
AGC
is applicable to the case before us even though its facts are distinguishable.
{21} Plaintiff further
argues, though, that the NMAA offers a broader basis for consumers to bring an
antitrust action and that it diverges from federal law by allowing suits to be
brought by those “indirectly” harmed by monopolistic behavior. Section 57-1-3.
The NMAA was modified in 1979 to counteract the U.S. Supreme Court’s decision
in
Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), which had barred
antitrust suits by “indirect” purchasers in a distribution scheme. New Mexico,
as did other states, responded by clarifying its statute to allow suits by
those claiming to have been harmed indirectly. Plaintiff thus suggests that the
revised NMAA deserves an expansive reading that finds a broad legislative
intent to protect consumers.
{22} First, as stated
above, we reject Plaintiff’s claim that she is an indirect purchaser in the
distribution scheme at hand; rather, her claim is distinct from and derivative
of a distribution network for debit card services that involves Defendants,
their member banks, and merchants. Further, Plaintiff misreads the Supreme
Court’s opinion in
Illinois Brick and conflates its statutory analysis
with an analysis of standing. The
Illinois Brick Court was focused not
on standing but rather on a straight interpretation of the statute amid the
Court’s concerns about allowing multiple treble damages liability throughout a
given chain of distribution of goods.
Id. at 736-37. The Court was
careful to distinguish between the issue presented—the question of whether the
federal antitrust act allows an indirect purchaser to bring suit—and the
broader issue of standing: “[W]e do not address the standing issue, except to
note . . . that the question of which persons have been injured by an illegal
overcharge . . .
is analytically distinct from the question of which
persons have sustained injuries too remote to give them standing to sue for
damages under [15 U.S.C.] § 4.”
Illinois Brick, 431 U.S. at 728 n.7 (emphasis
added). Even the
Illinois Brick dissent by Justice Brennan acknowledged
that “there is a point beyond which the wrongdoer should not be held liable.”
Id.
at 760 (Brennan, Marshall, & Blackmun, JJ., dissenting). The dissent
continued: “Courts have therefore developed various tests of antitrust
‘standing’ . . . to define that point.”
Id. The full Court, in a
subsequent case, reiterated that standing requirements and questions of “which
persons have sustained injuries that are too remote” remain “[a]nalytically
distinct” from
Illinois Brick’s bar against indirect purchasers.
Blue
Shield v. McCready, 457 U.S. 465, 476 (1982) (emphasis, internal quotation
marks, and citation omitted). Thus, “[b]ecause
Illinois Brick did not
alter the Court’s antitrust standing jurisprudence,
Illinois Brick’s
repeal should imply nothing about standing.” Dwyer,
supra, at 263
(emphasis added).
{23} Plaintiff can point
to only one other jurisdiction that has ruled in favor of consumers in a
similar case against Defendants:
W. Virginia, Civil Action No. 30-C-551.
This is an unpublished decision in which the court prefaces its discussion by
stating that it was not conducting a full analysis of the issue of standing.
Id.
Further, the West Virginia district court’s discussion of
Illinois Brick
repealer statutes suffers from lack of nuance and falls short of a full
assessment of standing in such cases. Thus, it stands alone as an unreliable
outlier against every other jurisdiction that has denied standing to similarly
situated plaintiffs bringing derivative actions against Visa and MasterCard.
See,
e.g.,
Kanne, 723 N.W.2d at 299-300;
Knowles, 2004 WL 2475284
at *3;
Stark, 2004 WL 1879003 at *3-4. The Minnesota Supreme Court, in a
follow-up case to its consumer suits against Defendants, observed that “
Illinois
Brick addressed the scope of antitrust injury, not standing, under the
Clayton Act.”
Lorix v. Crompton Corp., 736 N.W.2d 619, 629 (Minn. 2007).
The court concluded: “Whatever the precise prudential limits on Minnesota
antitrust standing, we do not believe that the legislature intended to create
‘consumer standing’ by allowing every person in the state to sue for an
antitrust violation simply by virtue of his or her status as a consumer.”
Id.
at 632. We similarly conclude that Plaintiff lacks standing to bring a claim
against Visa and MasterCard under the NMAA for the alleged tying scheme that
forced merchants to accept Defendants’ debit cards at inflated transaction-fee
rates.
{24} For the foregoing
reasons, we affirm the decision of the district court.
CELIA FOY CASTILLO, Chief Judge
RODERICK T. KENNEDY, Judge
Topic Index for Nass-Romero v. Visa USA, Inc.,
Docket No. 30,540
MS MISCELLANEOUS
STATUTES
MS-UP Unfair Practices Act