Nass-Romero v. Visa USA, Inc.

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 10:29:47 2012.06.14

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-058

Filing Date: April 18, 2012

Docket No. 30,540

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.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Sarah M. Singleton, District Judge

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

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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.

OPINION

CASTILLO, Chief Judge.

{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.

I. BACKGROUND

{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.

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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

1
See Consiglio-Tseffos v. Visa U.S.A., Inc., 2004 WL 3030043 (Ariz. Super. Ct., Dec. 8,
2004; In re Credit/Debit Card Tying Cases, 2004 WL 2475287 (Cal. Super. Ct., Oct. 14,
2004); Goldberg v. Visa U.S.A., Inc., 2007 WL 2011732 (D.C. Super. Ct., March 2, 2007);
Peterson v. Visa U.S.A., Inc., 2005 WL 1403761 (D.C. Super. Ct., April 22, 2005); Southard
v. Visa U.S.A. Inc., 734 N.W.2d 192 (Iowa 2007); Moore v. Visa U.S.A., Inc., 2004 WL
3030032 (Kan. Dist. Ct., Nov. 15, 2004); Knowles v. Visa U.S.A. Inc., 2004 WL 2475284
(Me. Super. Ct., Oct. 20, 2004); Stark v. Visa U.S.A., Inc., 2004 WL 1879003 (Mich. Cir.
Ct., July 23, 2004); Smith v. Visa U.S.A., Inc., 2005 WL 1936336 (Minn. Dist. Ct., July 12,
2005); Gutzwiller v. Visa U.S.A., Inc., 2004 WL 2114991 (Minn. Dist. Ct., Sept. 15, 2004);
Tackitt v. Visa U.S.A., Inc., 2004 WL 2475281 (Neb. Dist. Ct., Oct. 19, 2004); Kanne v. Visa
U.S.A. Inc., 723 N.W.2d 293 (Neb. 2006); Ho v. Visa U.S.A., Inc., 793 N.Y.S.2d 8 (N.Y.
App. Div. 2005); Crouch v. Crompton Corp., 2004 WL 2414027 (N.C. Super. Ct., Oct. 28,
2004); Beckler v. Visa U.S.A., Inc., 2004 WL 2475100 (N.D. Dist. Ct., Sept. 21, 2004);
Cornelison v. Visa U.S.A., Inc., No. 03-1350 (S.D. Cir. Ct., Sept. 29, 2004); Bennett v. Visa
U.S.A. Inc., 198 S.W.3d 747 (Tenn. Ct. App. 2006); Fucile v. Visa U.S.A., Inc., 2004 WL
3030037 (Vt. Super. Ct., Dec. 27, 2004); Strang v. Visa U.S.A., Inc., 2005 WL 1403769
(Wis. Cir. Ct., Feb. 8, 2005).

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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.

II. DISCUSSION

A. Standard of Review

{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.

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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).

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{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

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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.

1. Market Participation

{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

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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”).

2. Directness of Harm

{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.”).

3. A Better Plaintiff

{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”).

4. Speculative Damages

{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

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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

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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

10
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.

III. CONCLUSION

{24} For the foregoing reasons, we affirm the decision of the district court.

{25} IT IS SO ORDERED.

____________________________________
CELIA FOY CASTILLO, Chief Judge

WE CONCUR:

____________________________________
CYNTHIA A. FRY, Judge

____________________________________
RODERICK T. KENNEDY, Judge

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Topic Index for Nass-Romero v. Visa USA, Inc., Docket No. 30,540

AE APPEAL AND ERROR
AE-SR Standard of Review

CP CIVIL PROCEDURE
CP-CA Class Actions
CP-SD Standing

CT CONSTITUTIONAL LAW
CT-SD Standing

FL FEDERAL LAW
FL-AN Antitrust

MS MISCELLANEOUS STATUTES
MS-AN Antitrust Act
MS-UP Unfair Practices Act

RE REMEDIES
RE-DG Damages, General
RE-MD Measure of Damages
RE-ND Nominal Damages

ST STATUTES
ST-IP Interpretation
ST-LI Legislative Intent

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