Oliver v. American Express Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

ANTHONY OLIVER, TERRY GAYLE QUINTON,

SHAWN O’KEEFE, ANDREW AMEND, SUSAN MEMORANDUM & ORDER

BURDETTE, GIANNA VALDES, DAVID 19-CV-566 (NGG) (SMG)

MOSKOWITZ, ZACHARY DRAPER, NATE

THAYER and MICHAEL THOMAS REID on

behalf of themselves and all others similarly

situated,

Plaintiffs,

-against-

AMERICAN EXPRESS COMPANY and

AMERICAN EXPRESS TRAVEL RELATED

SERVICES COMPANY, INC.,

Defendants.

NICHOLAS G. GARAUFIS, United States District Judge.

This is a putative class action brought against Defendants Amer-

ican Express Company and American Express Travel Related

Services Company, Inc. (together, “Amex”). Plaintiffs, consumers

who made purchases using a non-Amex electronic form of pay-

ment, challenge the non-discrimination provisions contained in

Amex’s contracts with merchants who accept its cards (the “Anti-

Steering Rules”). (Compl. (Dkt. 1) ¶ 1.) Currently before the

court is Amex’s motion to dismiss the complaint under Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Mot. to Dismiss

(“Mot.”) (Dkt. 37).) For the following reasons, Amex’s motion is

GRANTED IN PART and DENIED IN PART.

BACKGROUND

This action challenges Amex’s Anti-Steering Rules. (Compl. ¶ 1.)

Plaintiffs allege that Amex’s Anti-Steering Rules unreasonably re-

strain trade in the two-sided market for credit- and charge-card

transactions (“credit card transactions”) because they: “(i) in-

crease two-sided credit card transaction prices to supra-

competitive levels; (ii) result in fewer credit card transactions

than would occur but-for the restraints; and (iii) raise consumer

retail prices on goods and services purchased throughout the

country by Plaintiffs and the Class.” (Id. ¶ 3.)

The Anti-Steering Rules have been the subject of much litigation.

That background—including the procedural history of relevant

cases, the workings of the credit-card market in general, and

Amex’s platform in particular, etc.—has been discussed at great

length in this court’s previous opinions. See In re Am. Exp. Anti-

Steering Rules Antitrust Litig., --- F. Supp. 3d ---, 2020 WL 227425,

at *2-4 (E.D.N.Y. Jan 15. 2020) (“Non-Amex Merchants”);1 In re

Am. Exp. Anti-Steering Rules Antitrust Litig., 361 F. Supp. 3d 324,

331-33 (E.D.N.Y. 2019); In re Am. Exp. Anti-Steering Rules Anti-

trust Litig., No. 11-MD-2221 (NGG), 2016 WL 748089, at *1-4

(E.D.N.Y. Jan. 7, 2016); United States v. Am. Exp. Co. (“U.S. v.

Amex”), 88 F. Supp. 3d 143, 149-67 (E.D.N.Y. 2015), rev’d 838

F.3d 179 (2d Cir. 2016), aff’d sub nom. Ohio v. Am. Exp. Co.

(“Ohio”), 138 S. Ct. 2274 (2017). The background necessary to

introduce and decide the instant motion is laid out below.

A. The Parties

This action is brought by ten named Plaintiffs: (1) Anthony Oli-

ver, a resident of California; (2) Terry Gayle Quinton, a resident

of Tennessee; (3) Shawn O’Keefe, a resident of North Carolina;

(4) Andrew Amend, a resident of Kansas; (5) Susan Burdette, a

resident of New Mexico; (6) Gianna Valdes, a resident of New

York; (7) David Moskowitz, a resident of Oregon; (8) Zachary

Draper, a resident of Nevada; (9) Nate Thayer, a resident of Mas-

sachusetts; and (10) Michael Thomas Reid, a resident of Florida

1 When quoting cases, unless otherwise noted, all citations and quotation

marks are omitted and all alterations are adopted.

(collectively, “Plaintiffs”). Plaintiffs bring this action on their own

behalf and, pursuant to Federal Rule of Civil Procedure 23(b)(2),

on behalf of a proposed “Nationwide Class” defined as:

All persons or entities residing in the United States that do

not have an Amex card and who use an electronic form of

payment to purchase goods or services from merchants

which accept Amex, Visa, Mastercard and/or Discover credit

or charge cards.

Excluded from the Class are Defendants, their parent com-

panies, subsidiaries, agents and affiliates, all governmental

entities, and any judges or justices assigned to hear any as-

pect of this action.

(Compl. ¶ 137.) Plaintiffs also bring this action pursuant to Rule

23(a) and 23(b)(3) on behalf of thirty-two separate statewide

damage classes asserting claims for damages under the antitrust

statutes or consumer protection statutes and the law of unjust

enrichment of thirty-two jurisdictions: Alabama, Arizona, Cali-

fornia, District of Columbia, Florida, Hawaii, Illinois, Iowa,

Kansas, Maine, Massachusetts, Maryland, Michigan, Minnesota,

Mississippi, Montana, Nebraska, Nevada, New Hampshire, New

Mexico, New York, North Carolina, North Dakota, Ohio, Oregon,

Rhode Island, South Dakota, Tennessee, Utah, Vermont, West

Virginia, and Wisconsin (collectively, the “State Damages Clas-

ses”). (Id. ¶ 138.) Like the Nationwide Class, the State Damages

Classes are made up of individual consumers who do not have

an Amex card and who used any electronic form of payment to

purchase a product from a merchant that accepted Amex, Visa,

Mastercard, or Discover credit or charge cards. (Id. ¶ 139.)

Defendant American Express Company is a New York Corpora-

tion. (Id. ¶ 22.) Defendant American Express Travel Related

Services Company, Inc. is a New York Corporation, with its prin-

cipal place of business in New York, New York. (Id. ¶ 23.) It is a

wholly owned subsidiary of American Express Company. (Id.)

B. The Relevant Market

Plaintiffs assert that the relevant geographic market is “the

United States, including each of the States.” (Id. ¶ 71.) The rele-

vant product market is “the market for two-sided general purpose

credit and charge card transactions.” (Id. ¶ 72.)

C. Factual Allegations

1. The Credit Card Industry

Amex is one of four significant competitors in the nationwide

credit card market. (Id. ¶ 36.) The others are Visa, Mastercard,

and Discover. (Id.) According to Plaintiffs, the market shares of

these four companies as of 2013 were Visa 45%, Amex 26.4%,

MasterCard 23.3%, and Discover 5.3%. (Id.; see Ohio, 138 S. Ct.

at 2282.) The market is also constrained by high barriers to en-

try; in fact, there has not been a successful entry into the market

since Discover in 1985. (Id. ¶ 38.)

Credit card companies provide services both to cardholders, who

use the cards to purchase goods and services, and to merchants,

who accept those cards as payment in exchange for goods and

services. These credit card companies thus operate a two-sided

platform, offering services to two, distinct groups (merchants

and consumers) and facilitating transactions between them. See

Ohio, 138 S. Ct. at 2280. Credit card companies need to make a

sale to both sides of the market to succeed; after all, “no credit-

card transaction can occur unless both the merchant and the

cardholder agree to use the same credit-card network.” Id.; (see

also Compl. ¶¶ 45-47). Amex offers services directly to both mer-

chants and consumers. (Compl. ¶ 40.)

As Plaintiffs allege, “when a consumer uses a credit or charge

card, the merchant’s point of sale terminal relays a record of the

transaction to the card’s network.” (Id. ¶ 48.) The network then

pays, or facilitates the payment of, money for that transaction to

the merchant, consisting of the purchase price charged to the cus-

tomer minus the fee that network or bank charges merchants

(the “merchant fee”). (Id.) Consumers may also pay fees to use

their credit cards and get rewards for making purchases with a

particular card. (Id. ¶ 49.) Unlike its competitors, who charge

variable merchant fees depending on the particular card the in-

dividual consumer is using, Amex “charg[es] a single merchant

fee for all of [its] various credit and charge cards.” (Id. ¶ 52.)

Amex sets its merchant fee pricing by industry segments, and, in

general, its merchant fees are higher than those of its competi-

tors. (Id. ¶¶ 53, 69.) Plaintiffs further allege that, in contrast to

its competitors, “the vast majority of Amex’s revenue comes from

merchant fees.” (Id.¶ 55.)

2. The Anti-Steering Rules

The target of this litigation is a provision in the Card Acceptance

Agreement (“CAA”), known as the Anti-Steering Rules, to which

all merchants who accept Amex cards must agree. Pursuant to

the Anti-Steering Rules, Merchants may not:

• indicate or imply that they prefer, directly or indirectly,

any Other Payment Products over [Amex] Card[s];

• try to dissuade cardholders from using [their Amex]

Card;

• criticize or mischaracterize [the Amex] Card or any of

[Amex’s] services or programs;

• try to persuade or prompt cardholders to use any Other

Payment Products or any other method of payment (e.g.,

payment by check);

• impose any restriction, conditions, or disadvantages

when the Card is accepted that are not imposed equally

on all Other Payment Products, except for ACH funds

transfer, cash, and checks;

• engage in activities that harm [Amex’s] business or the

American Express Brand (or both);

• or promote any Other Payment Products (except the

Merchant’s own private label card that they issue for use

solely at their establishments) more actively than the

Merchant promotes [Amex’s] Card.

(Id. ¶ 78.)

3. Harm to Plaintiffs

Plaintiffs allege that the “intended and actual result of Amex’s

Anti-Steering Rules is near-total insulation from price competi-

tion amongst Amex, Visa, Mastercard, and Discover in the fees

charged to merchants.” (Id. ¶ 83.) This is because the Anti-Steer-

ing Rules prevent merchants from encouraging customers to use

non-Amex cards, even where another card is less expensive for

the merchant to accept. (Id.) In turn, any incentive for Visa, Mas-

tercard, and Discover “to compete with Amex or with one another

on the level of merchant fees” is removed. (Id.) Absent the Anti-

Steering Rules, merchants could—and would—use “a number of

different procompetitive steering devices to encourage cardhold-

ers to use a lower- cost credit card.” (Id. ¶ 84.) This steering,

Plaintiffs allege, would have many procompetitive virtues, in-

cluding: “fostering horizontal competition between the four

[credit card] networks; driving supra-competitive prices to mer-

chants and two-sided [credit card] transaction prices down to a

competitive level by letting market forces, not Amex’s restraints,

determine the price; and increasing the number of credit and

charge card transactions in the relevant markets.” (Id. ¶ 85.)

Plaintiffs allege that the Anti-Steering Rules have stifled this com-

petition and have caused and continue to cause higher credit

card transaction prices, a lower volume of overall credit card

transactions, and higher consumer retail prices on goods and ser-

vices purchased throughout the country. (Id. ¶ 94.)

Plaintiffs allege that the Anti-Steering Rules do not just insulate

Amex from competition, but also result in higher merchant fees

charged by Visa, Mastercard, and Discover as well. (Id. ¶ 107.)

This is because “[a]bsent merchant steering, a credit card pro-

vider cannot expect to receive any competitive benefit for

offering a price below that of its competitors.” (Id. ¶ 110.) As a

result, Visa, Mastercard, and Discover have all raised their mer-

chant fees. (Id. ¶¶ 70, 116, 117.) And, with steering in place, the

total number of credit card transactions, and the volume of those

transactions, would also increase. (Id. ¶¶ 121-124.)

Plaintiffs allege that without the Anti-Steering Rules, merchants,

seeking cost savings, would steer customers to other credit card

networks because Amex’s merchant fees are generally the high-

est. That steering would motivate competition between all credit

card networks to lower merchant fees in an attempt to convince

merchants to steer customers to their network. That market com-

petition would drive down the costs merchants paid to credit

card networks. As a result, instead of passing along higher mer-

chant fees as higher retail costs, merchants would pass on these

merchant fee cost-savings in the form of lower retail prices “on

everything, to every consumer.” (Compl. ¶ 127.) Instead, with

the Anti-Steering Rules in place, “[h]arm to Plaintiffs and class

members occurs at the time of each retail purchase from all

[credit card]-accepting merchants in every State.” (See generally

id. ¶¶ 125-129.)

D. Procedural History

Plaintiffs Oliver, O’Keefe, Valdes, Amend, Burdette, Reid, and

Draper previously brought claims for relief in this court against

Amex based on the same facts and circumstances as alleged

herein. These actions were consolidated under Jaynes et al. v. Am.

Ex. et al., 15-CV-1598 (E.D.N.Y. July 7, 2015). After the Second

Circuit’s decision in U.S. v. Amex, the parties executed a tolling

agreement, in which Plaintiffs agreed to dismiss their claims

against Amex without prejudice with the right to re-file those

claims within sixty days after all rights of appeal in U.S. v. Amex

were exhausted. Plaintiffs subsequently filed their complaint in

this action on January 29, 2019. (Compl.) On July 24, 2019,

Amex filed a fully briefed motion to dismiss the complaint. (See

Amex Mem. in Supp. of Mot. (“Mem.”) (Dkt. 38); Pls. Mem. in

Opp. to Mot. (“Opp.”) (Dkt. 40); Amex Reply in Supp. of Mot

(“Reply.”) (Dkt. 32).)

LEGAL STANDARD

A. Rule12(b)(1)

Under Rule 12(b)(1), a district court should dismiss a case when

it “lacks statutory or constitutional power to adjudicate it.”

Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In

reviewing a motion to dismiss under Rule 12(b)(1), the court

must accept all material factual allegations in the complaint as

true, but should not draw “argumentative inferences favorable to

the party asserting jurisdiction.” Atl. Mut. Ins. Co. v. Balfour

Maclaine Int’l Ltd., 968 F.2d 196, 198 (2d Cir. 1992) (citing Nor-

ton v. Larney, 266 U.S. 511, 515 (1925)). The court may refer to

evidence outside the pleadings. See Makarova, 201 F. 3d at 113

(citing Kamen v. American Tel. & Tel. Co., 791 F. 2d 1006, 1011

(2d Cir. 1986) (stating that “evidentiary matter may be pre-

sented by affidavit or otherwise” under a Rule 12(b)(1)

motion)). The plaintiff bears the burden of showing, by a pre-

ponderance of the evidence, that the court has subject matter

jurisdiction over its claims. See id.

B. Rule 12(b)(6)

To survive a Rule 12(b)(6) motion, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to re-

lief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

570 (2007)). A complaint must contain facts that do more than

present a “sheer possibility that a defendant has acted unlaw-

fully.” Iqbal, 556 U.S. at 678. To decide Defendants’ motion to

dismiss, the court “will accept all factual allegations in the [c]om-

plaint as true and draw all reasonable inferences in [Plaintiffs’]

favor.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d

Cir. 2011). However, the court will “identify[] pleadings that, be-

cause they are no more than conclusions, are not entitled to the

assumption of truth.” Iqbal, 556 U.S. at 679. The court must then

evaluate the “well-pleaded factual allegations” and “determine

whether they plausibly give rise to an entitlement to relief.” Iq-

bal, 556 U.S. at 679. This plausibility analysis “does not impose

a probability requirement at the pleading stage,” but requires the

complaint to provide “enough fact to raise a reasonable expecta-

tion that discovery will reveal evidence of illegality.” Arista

Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (quoting

Twombly, 550 U.S. at 556).

DISCUSSION

A. Federal Claims

Section 16 of the Clayton Act entitles “[a]ny person, firm, corpo-

ration, or association” to sue for injunctive relief “against

threatened loss or damage by a violation of the antitrust laws.”

15 U.S.C. § 26. At the pleading stage, “[a]n antitrust plaintiff

must show both constitutional standing and antitrust standing.”

Gelboim v. Bank of Am. Corp., 823 F.3d 759, 770 (2d Cir. 2016);

see also Eastman Kodak Co. v. Henry Bath LLC, 936 F.3d 86, 94

(2d Cir. 2019). Amex claims that Plaintiffs have not met either

burden.

1. Article III Standing

To satisfy the “irreducible constitutional minimum” of Article III

standing, a plaintiff must demonstrate (1) an “injury in fact,” (2)

a “causal connection” between the injury and complained-of con-

duct, and (3) a likelihood “that the injury will be redressed by a

favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-

61 (1992). The second and third requirements of standing, “cau-

sation” and “redressability,” require a plaintiff to demonstrate

that the “injury-in-fact” she suffers is “fairly traceable to the chal-

lenged action of the defendant and likely to be redressed by a

favorable decision.” Lexmark Int’l, Inc. v. Static Control Compo-

nents, Inc., 572 U.S. 118, 125 (2014).

a. Injury in Fact

Plaintiffs’ adequately allege an injury-in-fact: that they “pa[y]

more for goods and/or services purchased from merchants . . .

than they otherwise would and will pay in the absence of Amex’s

restraints.” (Compl. ¶ 152.) Amex does not dispute that this type

of economic harm is sufficient for the purposes of standing.

b. Traceability

A more difficult question concerns whether Plaintiffs’ respective

injuries are “fairly traceable” to Amex’s Anti-Steering Rules. “The

traceability requirement for Article III standing means that the

plaintiff must demonstrate a causal nexus between the defend-

ant’s conduct and the injury.” Rothstein v. UBS AG, 708 F.3d 82,

91 (2d Cir. 2013). Rothestein explained that “[t]he requirement

that a complaint allege an injury that is fairly traceable to defend-

ants’ conduct for the purposes of constitutional standing is a

lesser burden than the requirement that it show proximate

cause.” Id. at 92. Thus, a plaintiff “does not lack standing simply

by virtue of the indirectness of his or her injury.” Heldman v.

Sobol, 962 F.2d 148, 156 (2d Cir. 1992); see also id. (“[P]laintiffs’

injury would satisfy the fairly traceable requirement if they had

alleged all the links in the chain of causation.”). This “lesser bur-

den” as between traceability and proximate cause is “particularly

[true] at the pleading stage.” Connecticut v. Am. Elec. Power Co.,

Inc., 582 F.3d 309, 346 (2d Cir. 2009), rev’d on other grounds,

564 U.S. 410 (2011). Accordingly, “the fact that there is an in-

tervening cause of the plaintiff’s injury may foreclose a finding of

proximate cause but is not necessarily a basis for finding that the

injury is not ‘fairly traceable’ to the acts of the defendant.” Roth-

stein, 708 F.3d at 92.

Here, Plaintiffs meet this low burden. Plaintiffs allege that, absent

the Anti-Steering Rules, merchants would steer customers to the

credit card networks that charged merchants the lowest mer-

chant fee. This would precipitate price competition between

credit card companies on the merchant side of the transaction,

i.e. incentivize credit card networks to lower their merchant fees

to attract merchant business. Those lower fees would lead to in-

creased savings for merchants, a portion of which they would

pass on in the form of lower retail prices to Plaintiffs.

Accepting these allegations as true, Plaintiffs have met their “rel-

atively modest” burden to demonstrate traceability. Plaintiffs’

allegations rely on certain basic economic assumptions about

supply and demand: that, for instance, credit card networks

would respond to merchant demand for lower fees and that mer-

chants would respond to consumer demand for lower prices and

pass on a certain amount of savings. While raising potential prox-

imate cause problems, such assumptions are acceptable at the

pleading stage to meet the traceability requirement, especially in

the antitrust context. See Adams v. Watson, 10 F.3d 915, 923 (1st

Cir. 1993) (allegations of economic harm “based on standard

principles of supply and demand” are “routinely credited by

courts in a variety of contexts”); Ill. Brick Co. v. Illinois, 431 U.S.

720, 758 (1977) (Brennan, J., dissenting) (noting that antitrust

cases often involve “tracing a cost increase through several levels

of a chain of distribution”).

The court finds the reasoning in Osborn v. Visa persuasive. 797

F.3d 1057 (D.C. Cir. 2015). In Osborn, users and operators of

independent automatized teller machines (“ATMs”) brought suit

against Visa, Mastercard, and certain affiliated banks alleging an-

ticompetitive schemes for pricing ATM access fees. Osborn, 797

F.3d at 1060. When a cardholder uses an independent ATM, two

fees are paid: (1) the cardholder’s bank pays an “interchange” fee

to the ATM; and (2) the ATM pays a network fee to the ATM

network (operated by, among other companies, Visa and Master-

card) that connects the ATM to the cardholder’s bank. Id. at

1060-61. The difference between those two fees (the “net inter-

change fee”) represents a portion of the ATM operator’s profit. In

addition to the net interchange fee collected each time a con-

sumer uses an ATM, ATM operators also collect revenue from

ATM access fees which are paid directly by the cardholder. Id. In

Osborn, plaintiffs alleged that Visa and Mastercard generally

charged relatively higher network fees (meaning the net inter-

change fee for the ATM operator would be lower) while

competing networks charged comparatively lower network fees

(meaning that the net interchange fee for the ATM operator

would be greater). Id.

Visa and Mastercard imposed non-discrimination provisions as

conditions for ATM operators to access their network. Id. These

provisions provided that “no ATM operator may charge custom-

ers whose transactions are processed on Visa or Mastercard

networks a greater access fee than that charged to any customer

whose transaction is processed on an alternative ATM network.”

Id. at 1061. As the court explained, these “anti-steering” provi-

sions meant that “operators cannot say to cardholders: ‘We will

charge you $2.00 for a MasterCard or Visa transaction, but if you

[use a lower-cost card], we will charge you only $1.75.’” Id. Plain-

tiffs alleged that these non-discrimination provisions prevented

independent ATM operators from incentivizing cardholders to

choose and use cards “that are most efficient and less costly than

either Visa or Mastercard’s.” Id.

Particularly relevant to the present motion, the court in Osborn

described the theory of harm of the plaintiff-consumers (who,

unlike the ATM operators, were themselves not subject to the

non-discrimination provisions) as follows:

The consumers’ theory of harm complements that of the op-

erators. The consumers allege that they pay inflated access

fees when they visit ATMs. They believe that the Access Fee

Rules inhibit competition in both the network services mar-

ket and the market for ATM access fees. But for the [non-

discrimination provisions], some ATM operators would offer

discounted access fees for cards linked to lower-cost ATM

networks, and this discounting would create downward

pressure on access fees generally.

Id. at 1064. Rejecting the district court’s determination that plain-

tiffs’ allegations constituted an “attenuated, speculative chain of

events that relies on numerous independent actors . . . that fails

both because of uncertainty of several individual links and be-

cause of the number of speculative links that must hold for the

chain to connect the challenged acts to the asserted particular-

ized injury,” the court held plaintiffs had standing, emphasizing

that “[a] Rule 12(b)(1) motion . . . is not the occasion for evalu-

ating the empirical accuracy of an economic theory.” Id. at 1064-

65. To the contrary, because “the economic facts alleged by the

Plaintiffs are specific [and] plausible . . . they pass muster for

standing purposes at the pleadings stage.” Id. at 1066.

Osborn’s logic applies here. Relying on the same basic economic

assumptions regarding competition and supply and demand as

the consumer-plaintiffs in Osborn, Plaintiffs here allege specific

facts supporting the causal link between Amex’s Anti-Steering

Rules and their economic harm. According to Plaintiffs, Amex’s

Anti-Steering rules insulate both Amex and its competitors from

competition on fees charged to merchants. (Compl. ¶¶ 82-84.)

Plaintiffs allege that between 2012 and 2015, because of a lack

of incentive to compete on the merchant side of the market, Visa

and Mastercard merchant fees have grown an average of 8.5%

per year and that Visa announced a further fee increase in Octo-

ber 2018. (Id. ¶ 117.) At the same time, Plaintiffs allege that

Amex raised its merchant fees on twenty separate occasions be-

tween 2005 and 2010 without losing any appreciable market

share. (Id. ¶ 104.) Plaintiffs also highlight Discover’s experience

with its “low-cost pricing strategy” in the late 1990s, in which

Discover sought to “capture market share from disgruntled mer-

chants” by “provid[ing] a low-priced network for credit card

services.” (Id. ¶ 108.) However, the Anti-Steering Rules pre-

vented significant market share from shifting to Discover,2 and

Discover “began raising discount rates in order to align itself with

its competitors”; today, Discover’s merchant fees are “similar to

those offered by Visa and Mastercard.” (Id. ¶¶ 108-109.) Finally,

Plaintiffs allege that increased competition would lead to lower

merchant fees and savings for merchants, and that “merchants

will pass-on cost saving from reduced merchant fees in the form

of lower retail prices.” (Id. ¶ 127.) Taken together, these allega-

tions plausibly state the necessary causal connection between

Amex’s Anti-Steering Rules and Plaintiffs’ injury required for

traceability under Article III at the pleading stage.

c. Redressability

The third and final requirement for Article III standing is redress-

ability. Amex focuses its argument on this prong, arguing that

“because Plaintiffs’ alleged multiple-step theory of causation de-

pends on the actions of multiple third-party payment networks

as well as merchants, it is entirely speculative that any relief that

could be awarded in this case against Amex would redress the

injury alleged.” (Mem. at 5-6.) The court disagrees.

The redressability inquiry “focuses . . . on whether the injury that

a plaintiff alleges is likely to be redressed through the litigation.”

Sprint Comms. Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 286-87

2 Not to mention that, as perhaps one of the clearest signs of the anti-com-

petitive nature of the credit card market, there “has been no successful

entry into the [credit card] market since Discover in 1985”—more than

three decades ago. (Compl. ¶ 38.)

(2008). To satisfy the redressability requirement, a plaintiff must

establish that “it is likely and not merely speculative that the

plaintiff’s injury will be remedied by the relief plaintiff seeks in

bringing suit.” Id. at 273-74 (citing Lujan, 504 U.S. at 560-61).

Importantly, the redressability prong does not require that court-

ordered relief completely redress all injury, see Knight First

Amendment Inst. at Columba Univ. v. Trump, 302 F. Supp. 3d 541,

561 (S.D.N.Y. 2018), and it “is not a demand for mathematical

certainty,” Mhany Mgmt., Inc. v. County of Nassau, 819 F. 3d 581,

602 (2d Cir. 2016). As the Second Circuit recently explained, re-

dressability is “an issue that is closely related to the question of

causation.” Citizens for Responsibility and Ethics in Washington v.

Trump, 953 F.3d 178, 194 (2d Cir. 2019) (“CREW”). “When the

injury alleged is caused by the illegal conduct, in many instances

(at least where continuation of the illegal conduct will continue

to cause harm), the cessation of the illegal conduct will be likely

to at least diminish further instance of the injury.” Id.

The principle announced in CREW applies with full force here.

Because Plaintiffs’ have adequately plead causation (for the pur-

poses of standing at the pleadings stage), it follows that the

“cessation of the illegal conduct”—Amex’s Anti-Steering Rules—

will “at least diminish further instance of the injury”—higher re-

tail prices paid by Plaintiffs. That cessation could be achieved by

the injunction Plaintiffs seek. Amex argues that Plaintiffs’ injury

would not be diminished by such an injunction “because the re-

lationship between the [Anti-Steering Rules] and the price

Plaintiffs pay for goods and services is so tenuous.” (Mem. at 6.)

While Amex frames this argument in terms of redressability, it

really is one of traceability—i.e. the causal relationship between

the injury and the conduct is too speculative and attenuated. Yet,

as explained above, Plaintiffs have adequately pleaded traceabil-

ity for the purposes of Article III standing, and Amex’s argument

therefore fails.

Accordingly, the court holds that Plaintiffs have Article III stand-

ing.

2. Antitrust Standing

Amex next argues that Individual Plaintiffs and the putative Na-

tionwide Class lack antitrust standing to pursue their claims. At

the motion to dismiss stage, “a private antitrust plaintiff must

plausibly allege (a) that it suffered a special kind of antitrust in-

jury, and (b) that it is a suitable plaintiff to pursue the alleged

antitrust violation and thus is an efficient enforcer of the antitrust

laws.” In re London Silver Fixing, Ltd., Antitrust Litig., 213 F. Supp.

3d 530, 549 (S.D.N.Y. 2016). Because the court finds that Plain-

tiffs are not efficient enforcers of the antitrust law, it will not

address whether they have plausibly alleged antitrust injury.

As the Second Circuit has explained:

The efficient enforcer inquiry turns on: (1) whether the vio-

lation was a direct or remote cause of the injury; (2) whether

there is an identifiable class of other persons whose self-in-

terest would normally lead them to sue for the violation; (3)

whether the injury was speculative; and (4) whether there is

a risk that other plaintiffs would be entitled to recover dupli-

cative damages or that damages would be difficult to

apportion among possible victims of the antitrust injury.

Gelboim, 823 F. 3d at 772; see also Associated Gen. Contractors of

Cal., Inc. v. Cal. State Council of Carpenters (“AGC”), 459 U.S. 519,

535 (1983) (the “AGC factors”). “[These] factors reflect a con-

cern about whether the putative plaintiff is a proper party to

perform the office of a private attorney general and thereby vin-

dicate the public interest in antitrust enforcement.” Gelboim, 823

F. 3d at 780. “These four factors need not be given equal weight,”

and “the relevant significance of each factor will depend on the

circumstances of the particular case.” IQ Dental Supply Inc. v.

Henry Schein, Inc., 924 F. 3d 57, 65 (2d. Cir. 2019).

This court recently applied the AGC factors to determine that a

class of merchants who did not accept Amex (the “Non-Amex

Class”) were not efficient enforcers to challenge Amex’s Anti-

Steering Rules. See Non-Amex Merchants, 2020 WL 227425, at

*6-11. There, this court held that (1) the Non-Amex Class’s al-

leged harm was not sufficiently direct to Amex; (2) there was an

identifiable other class of more direct victims—namely, the class

of merchants who accept Amex—which has “litigated the same

issue, and remains free to do so pursuant to the arbitration pro-

cess laid out in their agreement with Amex”; (3) that “Plaintiffs’

damages calculation would necessarily rest on multiple layers of

speculation”; and (4) that the availability of other enforcement

mechanisms “reinforce[d] the conclusion that the remaining

Plaintiffs are not efficient enforcers of the antitrust laws.” Id.

a. Directness

“Directness in the antitrust context means close in the chain of

causation.” Gatt Comms., Inc. v. PMC Assocs., L.L.C., 711 F.3d 68,

78 (2d Cir. 2013) “The overall inquiry is akin to proximate cause

in tort law—plaintiffs may not be too remote so as to avoid du-

plicative recovery and limitlessly increase the universe of

potential plaintiffs.” Harry v. Total Gas & Power N. Am., Inc., 889

F.3d 104, 116 (2d Cir. 2018). As a general matter, those entities

most directly injured by anticompetitive conduct are customers

or competitors of the defendant. See In re Aluminum Warehousing

Antitrust Litig., 833 F.3d 151, 159 (2d Cir. 2016).

Nonetheless, a plaintiff who is not a customer or competitor may

suffer a direct injury if it is “a participant in the very market di-

rectly distorted by the antitrust violation” and its injury is

“inextricably intertwined with the injury the [defendants] sought

to inflict.” Id. at 159, 160; see also SAS of PR, Inc. v. PR Telephone

Co., 48 F.3d 39, 46 (1st Cir. 1995). “[T]o assess the plausibility

of a putative plaintiff’s claim to antitrust injury as being inextri-

cably intertwined with the injury the defendants ultimately

sought to inflict,” this court must “ask whether the plaintiff was

manipulated or utilized by defendant as a fulcrum, conduit[,] or

market force to injure competitors or participants in the relevant

product and geographical markets.” In re Aluminum Warehous-

ing, 833 F.3d at 161.

Plaintiffs are indisputably participants in the two-sided credit

card market—the very market allegedly distorted by Amex’s ac-

tions. The question is thus whether their supposed injury is

inextricably intertwined with the injury Amex sought to inflict. It

is not, for many of the same reasons that the alleged injury of the

Non-Amex Class was not.3 The crux of Plaintiffs’ argument is that

Amex’s Anti-Steering Rules have led Visa, Mastercard, and Dis-

cover to raise merchant fees more than they would have absent

the Anti-Steering Rules (and that, absent the Anti-Steering Rules,

those competitors would all lower their merchant fees). (See, e.g.

Compl. ¶¶ 125-129.) In turn, merchants have passed on in-

creased costs to consumers. This is exactly the argument this

court rejected in Non-Amex Merchants. There, the court explained

that “Amex was not, according to the allegations in the com-

plaint, using its market power to force its competitors to charge

higher merchant fees across the board.” Non-Amex Merchants,

2020 WL 227425 at *8. Instead, it “forc[ed] those merchants

3 Amex argues that Plaintiffs have not alleged a direct injury and instead

present only a so-called umbrella theory of liability. (Mem. at 11-13.) The

Second Circuit has not yet explicitly addressed the viability of antitrust

claims that rely on an umbrella theory of liability, but it has expressed con-

cerns about allowing such claims to proceed. See Gelboim, 823 F.3d at 779

(noting that allowing claims under an umbrella theory of liability could

“vastly extend the potential scope of antitrust liability” and could allow

recovery for “damages disproportionate to wrongdoing.”). Because the

court holds that Plaintiffs are not efficient enforcers under the AGC factors,

it need not rule on whether an umbrella theory of liability may ever create

antitrust standing (or if umbrella standing concerns alone should deter-

mine that Plaintiffs are not efficient enforcers).

who did accept its cards to refrain from steering customers to-

wards other cards and, in so doing, insulated its ability to charge

those merchants ultracompetitive fees.” Id. Even if “[p]laintiffs

[were] right that this had an effect on the fees other credit card

networks charged to the Non-Amex Class, . . . any such effect was

incidental to Amex’s alleged anticompetitive behavior.” Id; see

also id. at * 9 (“Plaintiffs allegations involve Amex’s competitors

reacting—perhaps in predictable ways—to a contractual provi-

sion entered into between Amex and the Amex Class.”).

Here, Plaintiffs rely on the same unpersuasive argument to try

and bridge the causal gap. The complaint alleges that “no longer

insulated from price competition on the merchant side of the

[credit card] platform [absent the Anti-Steering Rules], the four

[credit card] networks would compete on price to merchants,

and therefore merchant fees and the two-sided transaction price

would be lower.” (Compl. ¶ 126.) That logic—Amex’s Anti-Steer-

ing Rules have caused Visa, Mastercard, and Discover to make

decisions that have led to increased cost for Plaintiffs—under-

girds Plaintiffs’ entire theory. Yet, Plaintiffs do not allege that

Amex’s Anti-Steering Rules are a “direct agreement with any

other party to manipulate or limit entry into the credit card mar-

ket,” Non-Amex Merchants, 2020 WL 227425 at *8, and, like the

Non-Amex Class, fail to demonstrate how the fees charged by

Amex’s competitors (that, absent the Anti-Steering Rules, would

have been lower and therefore led to reduced costs to consumer)

are not “incidental to Amex’s alleged anti-competitive behavior,”

id.

In arguing that Plaintiffs’ alleged injury is sufficiently close to

Amex’s anticompetitive behavior for Plaintiffs to be efficient en-

forcers, Plaintiffs rely solely on Ohio and its articulation of the

“two-sided market.” (Opp. at 8-9.) Plaintiffs argue that “in the

context of the two-sided market for [credit card] transactions . .

. Amex, Visa, Mastercard, and Discover provide transactions that

are ‘jointly consumed by a cardholder, who uses the payment

card to make a transaction, and a merchant, who accepts the pay-

ment card as a method of payment.’” (Id. (quoting Ohio, 138 S.

Ct. at 2286).) Therefore, Plaintiffs contend, Plaintiffs and mer-

chants are “cohabitants” on the credit-card platforms, and

“Plaintiffs’ injury flows from having a direct relationship with the

other three [credit card] networks.” (Opp. at 9.)

Plaintiffs are of course correct that Ohio held that the credit card

market is a “two-sided market” that “facilitate[s] a single, simul-

taneous transaction between participants,” each one of which is

“jointly consumed” by a cardholder and a merchant. Ohio, 138 S.

Ct. at 2286-87. Yet, this observation does not change the fact that

the theory of Plaintiffs’ injury relies on the actions taken by “the

three other [credit card] networks,” actions this court has held to

be “incidental” to Amex’s alleged anticompetitive behavior. See

Non-Amex Merchants, 2020 WL 227425, at *8. Further, as Amex

points out, the two-sided credit card market in which both Amex

and Plaintiffs are participants “involve multiple suppliers and

consumers,” not all of whom have a direct relationship. (Reply at

4.) To endorse Plaintiffs’ argument would be to find that all con-

sumers have a direct relationship with all suppliers without an

inquiry into the actual relationship between the parties in ques-

tion. This would not “reflect a concern about whether the

putative plaintiff is a proper party to . . . vindicate the public in-

terest in antitrust enforcement,” Gelboim, 823 F. 3d at 772, and

the court declines to adopt such a rule here.

b. Identifiable Class of Other More Direct Victims

The second efficient-enforcer factor recognizes “that not every

victim of an antitrust violation needs to be compensated under

the antitrust laws in order for the antitrust laws to be efficiently

enforced.” Gelboim, 823 F.3d at 779. This is particularly relevant,

where, as here, multiple sets of plaintiffs have sued the defendant

over the same alleged antitrust violations. See IQ Dental, 924 F.3d

at 66. In this case, there is an obvious class of “better positioned”

victims who have been “more directly injured by the alleged an-

titrust [violation]” than Plaintiffs—the class of Amex merchants

who are bound by Amex’s Anti-Steering Rules. Id. Plaintiffs’ as-

sertion that Plaintiffs “bear the brunt of the alleged antitrust

violation” (Opp. at 9), is unconvincing in light of the existence of

that class of Amex-accepting merchants. See IQ Dental, 924 F. 3d

at 66 (“Given that [the plaintiff] is further removed from the

harm caused by Defendants than the parties directly affected by

the boycott that have already sued the Defendants, the second

efficient-enforcer factor weighs against [the plaintiff’s] antitrust

standing.”).

Daniel v. American Bd. of Emergency Medicine does not compel a

different result. 428 F.3d 408 (2d Cir. 2005). Plaintiffs note that,

in Daniel, the Second Circuit affirmed denial of antitrust standing

for a plaintiff “which was without ‘natural economic self-interest’

to reduce costs and favoring antitrust standing for ultimate

payors which bore [the] brunt of alleged overcharges.” (Opp. at

10 (quoting Daniel, 428 F.3d at 444).) In contrast, Plaintiffs here

argue they are “significantly motivated [to pursue their claims]

due to their natural economic self-interest in paying the lowest

price possible.” In re DDAVP Direct Purchaser Antitrust Litig., 585

F.3d 677, 689 (“DDAVP”) (2d Cir. 2009). That fact alone, how-

ever, is not enough to sway this factor in Plaintiffs’ favor because

“denying [them] a remedy on the basis of [their] allegations in

this case is not likely to leave a significant antitrust violation un-

detected or unremedied.” IQ Dental, 924 F.3d at 66. Here, as in

Daniel, there are other parties better suited to “vindicate the pub-

lic interest in antitrust enforcement” than Plaintiffs. Daniel, 428

F. 3d at 443.

c. Speculative Nature of the Injury

The existence of only “highly speculative damages is a sign that

a given plaintiff is an inefficient engine of enforcement.” Gel-

boim, 823 F.3d at 779. “At the same time, some degree of

uncertainty stems from the nature of antitrust law.” Id. “Imped-

iments to reaching a reliable damages estimate often flow from

the nature and complexity of the alleged antitrust violation.” Id.

at 780. Here, like in Non-Amex Merchants, Plaintiffs’ claim

“would involve assessing the pricing decision on Amex’s non-

party competitors, all of whom are competing against one an-

other as well as against Amex on both sides of the two-sided

market.” 2020 WL 227425 at *10. As this court explained:

[T]he calculation involves several stages of speculation: how

much steering would occur if merchants accepting Amex

cards were permitted to engage in it? What effect would this

have on Amex’s merchant fees? What effect would any

change in Amex’s merchant fees have on the decisions of its

competitors regarding their own merchant fees? And, per-

haps most important in terms of the speculative nature of

this clam, how would those decisions trickle over into the

parallel situation of the Non-Amex Class members?

Id. Here, too, those questions remain unanswered—the most im-

portant of which, for these Plaintiffs, is how these decisions

would trickle over into the retail costs charged to non-Amex con-

sumers.

DDAVP does not tilt this factor toward Plaintiffs’ favor. In that

case, direct purchasers of a drug called DDAVP brought suit

against the drug’s brand name manufacturer alleging that the

brand name manufacturer inflated DDAVP’s price by suppressing

generic competition in violation of the antitrust laws. DDAVP,

585 F.3d at 682. The Second Circuit held that, under the third

efficient-enforcer factor, plaintiffs’ harm was not overly specula-

tive because there was clear evidence that “generic

manufacturers would have decided to compete for DDAVP sales,”

because those “manufacturers [had] sought approval for generic

DDAVP when [the defendants’ patent] was still enforceable.” Id.

at 689. Thus, the panel held that while “it may be difficult to ac-

count precisely for the likely effects of generic competition . . .

we have little doubt that those effects can be sufficiently esti-

mated and measured.” Id. Here, though, there is not a similarly

tight nexus between the anticompetitive behavior and the harm,

and simply asserting that there will be “competition on the mer-

chant side of the market” absent Amex’s Anti-Steering Rules does

not address the numerous open questions regarding the pricing

decisions of Amex’s competitors. While “such exogenous factors

are, to be sure, insufficient by themselves to defeat antirust stand-

ing; nonetheless, their presence is relevant to the efficient

enforcer analysis.” Non-Amex Merchants, 2020 WL 227425 at

*10.

d. Duplicative Recovery and Complex Apportionment

As a preliminary matter, Plaintiffs argue that this factor is “not

relevant to Plaintiffs’ federal claim for injunctive relief,” and

Amex agrees. (See Opp. at 7 n.11 (citing Cargill, Inc. v. Monfort

of Colo., Inc., 479 U.S. 104, 111 n.6 (1986); Mem at 16.) In Car-

gill, the Supreme Court explained that “because standing under

§ 16 [of the Clayton Act] raises no threat of multiple lawsuits or

duplicative recoveries, some of the factors other than antitrust

injury that are appropriate to a determination of standing under

§ 4 are not relevant under § 16.” Cargill, 479 U.S. at 11 n. 6.

Whether or not Cargill is applicable to this case, the court finds

the other AGC efficient-enforcer factors all cut strongly against

the Plaintiffs, and, accordingly, finds that Plaintiffs have not es-

tablished federal antitrust standing. Therefore, Count I is

dismissed with prejudice.

B. Count II—State Antitrust Claims

Under Count Two, Plaintiffs bring claims alleging antitrust viola-

tions under the laws of 28 jurisdictions. (Compl. ¶¶ 154-187.)

Amex moves for dismissal of those claims on two grounds. First,

Amex argues that Plaintiffs lack Article III standing to assert

claims on behalf of consumers in 22 states for which Plaintiffs

have not named any resident Plaintiffs. (See Mem. at 13-18.) Sec-

ond, Amex contends that Plaintiffs have failed to plead antitrust

standing under the laws of the remaining 10 states in which the

named Plaintiffs reside. (Id.) For the following reasons, Amex’s

motion is granted in part and denied in part.

1. Non-Resident Plaintiff Standing

Plaintiffs seek to certify 32 separate state damages classes.

(Compl. ¶ 138.) While the Complaint alleges named Plaintiffs for

10 of those jurisdictions, it does not identify individual resident

Plaintiffs for the remaining 22.4 Amex argues that “this is fatal”

because “the law is clear that Plaintiffs lack Article III standing to

assert claims on behalf of consumers in the 22 states for which

Plaintiffs have no named any resident plaintiff.” (Mem. at 14.)

Amex is wrong. In Langan v. Johnson & Johnson Consumer Cos.,

Inc., the Second Circuit held that “as long as the named plaintiffs

have standing to sue the named defendants, any concern about

whether it is proper for a class to include out-of-state, nonparty

class members with claims subject to different state laws is a

question of predominance under Rule 23(b)(3) . . . not a ques-

tion of adjudicatory competence under Article III.” 897 F.3d 88,

93 (2d Cir. 2018). In its reply, Amex responds that Langan does

4 These jurisdictions are: Alabama, Arizona, District of Columbia, Hawaii,

Illinois, Iowa, Maine, Maryland, Michigan, Minnesota, Mississippi, Mon-

tana, Nebraska, New Hampshire, North Dakota, Ohio, Rhode Island, South

Dakota, Utah, Vermont, West Virginia, and Wisconsin. (Mem. at 15.)

not apply because the parties there agreed that the named plain-

tiff had standing to sue, whereas, in this case, “no Plaintiff named

in the Complaint has standing to bring a claim under the law of

the state where he or she purports to sue as an individual.” (Re-

ply at 10.) However, as discussed below, the individual named

plaintiffs residing in Kansas, North Carolina, Oregon, and Ten-

nessee have standing to bring claims under the antitrust laws of

the states in which they reside. Therefore, under the plain lan-

guage of Langan, Plaintiffs have standing to bring claims under

the antitrust laws of the 22 states in which no named Plaintiff

resides.

2. Resident Named Plaintiff Standing.

The named Plaintiffs reside in 10 states: California, Florida, Kan-

sas, Massachusetts, Nevada, New Mexico, New York, North

Carolina, Oregon, and Tennessee. (Compl. ¶¶ 12-21.) In Count

Two, Plaintiffs allege claims under the antitrust laws of Califor-

nia, Kansas, Nevada, New Mexico, New York, North Carolina,

Oregon, and Tennessee. (Id. ¶¶ 154-187.) Amex argues that

Plaintiffs lack antitrust standing to bring claims under the anti-

trust laws of these states because each has adopted the AGC

factors for antitrust standing, and Plaintiffs fail that test. (Mem.

at 15-18.) Amex also argues that Plaintiffs lack standing to sue

under Tennessee law because Plaintiffs are neither direct nor in-

direct purchasers. (Id. at 17-18.) Plaintiffs argue that they have

standing because New York, California, Kansas, Oregon, North

Carolina, do not apply the AGC test. (Opp. at 14-15.) Plaintiffs

also argue they have standing under Tennessee law. (Id.)

A federal court adjudicating state law “look[s] to the state’s deci-

sional law, as well as to its constitution and statutes.” Santalucia

v. Sebright Transp., Inc., 232 F.3d 293, 297 (2d Cir. 2000). When

the state law is unsettled, the court “is obligated to carefully pre-

dict how the state’s highest court would resolve the uncertainty

or ambiguity.” Id. The court must give the “fullest weight” to the

pronouncements of the state’s highest court while giving “proper

regard” to the rulings of the state’s lower courts. Id.

a. California

In Non-Amex Merchants, this court had occasion to examine

whether antitrust standing under California state law is properly

analyzed under the same framework used to determine federal

antitrust standing. Non-Amex Merchants, 2020 WL 227425, at

*12. While noting that “courts have disagreed on the issue,” this

court found the California state court decision Vinci v. Waste

Mgmt., Inc., 43 Cal. Rptr. 2d 337, 338-39 (Cal. Ct. App. 1995)

persuasive and held that it would “apply the federal factors to

analyze antitrust standing under California law.” Non-Amex Mer-

chants, 2020 WL 227425, at *12. Plaintiffs have not advanced

any new arguments to convince the court to reconsider its deci-

sion in Non-Amex Merchants. Therefore, the court applies the

AGC factors to Plaintiffs’ claim under California antitrust law, and

dismisses Plaintiffs’ claim for the reasons stated above.

b. Kansas

Amex cites no state court cases applying the AGC factors to de-

termine antitrust standing under Kansas law. Instead, Amex cites

one federal district court opinion as support for its position. (See

Mem. at 16 (citing In re Dairy Farmers of Am., Inc. Cheese Anti-

trust Litig., No. 09-cv-3690, 2015 WL 3988488, at *9 (N.D. Ill.

June 29, 2015) (“Dairy Farmers”)).) Plaintiffs, for their part, also

cite a single federal district court opinion to argue that the court

should not apply the AGC factors to claims brought under Kansas’

antitrust law. (Opp. at 17 (citing In re Keurig Green Mountain Sin-

gle-Serve Coffee Antitrust Litig., 383 F. Supp. 3d 187, 259

(S.D.N.Y. 2019) (“Keurig”)).)

While the lack of Kansas authority makes it a close decision, the

court finds that Plaintiffs and the Keurig court have the better

argument. In Keurig, Judge Broderick conducted a review of the

limited authority from Kansas courts—including an unpublished

trial court opinion and federal district court cases—and con-

cluded that “[t]hese cases do not clearly lead to the conclusion

that the Kansas Supreme Court would apply the AGC factors in

accordance with federal precedents.” Id. Furthermore, Keurig ex-

plained that:

The harmonization provision in the Kansas Restraint of

Trade Act does not alter this conclusion. Subsection (b)

states, “Except as otherwise provided in subsections (d) and

(e), the Kansas restraint of trade act shall be construed in

harmony with ruling judicial interpretations of federal anti-

trust law by the United States supreme court.” Kan. Stat.

Ann. § 50-163. Subsection (d) states, “The Kansas restraint

of trade act shall not be construed to prohibit . . . actions or

proceedings by indirect purchasers pursuant to [Kan. Stat.

Ann. §] 50-161, and amendments thereto . . . .” Id. Although

it is plausible that the Kansas courts could interpret the har-

monization provision to repeal Illinois Brick but still require

application of the AGC factors in accordance with federal

precedent, [Defendant] has provided no persuasive author-

ity or argument supporting that reading.

Id. The court agrees, and Plaintiffs’ claim under Kansas antitrust

law survives.

c. Nevada and New Mexico

Amex cites persuasive state law authority for the proposition that

Nevada and New Mexico apply the AGC factors under their re-

spective state antitrust laws. (Mem. at 15-16 (citing Nev.

Recycling and Salvage, Ltd. V. Reno Disposal Co., 423 P.3d 605

(Nev. 2018); Nass-Romero v. Visa U.S.A. Inc., 279 P.3d 772 (N.M.

Ct. App. 2012)).) Both cases analyzed the relevant statutory lan-

guage and case law and concluded that the AGC factors should

apply to the antitrust standing determination. Nev. Recycling, 423

P.3d at 607-08; Nass-Romero, 279 P.3d at 779-81. Plaintiffs have

not identified any contrary authority. As such, the court con-

cludes that both Nevada and New Mexico would apply the AGC

factors, and Plaintiffs therefore lack standing to bring claims un-

der Nevada and New Mexico antitrust law. Because Plaintiff

Zachary Draper does not have a cause of action under either the

Sherman Act or Nevada antitrust law, he is dismissed from this

case.

d. New York

New York’s Donnelly Act prohibits “[e]very contract, agreement,

arrangement or combination whereby . . . competition . . . may

be restrained.” N.Y. Gen. Bus. Law § 340(1). The parties dispute

whether AGC’s efficient-enforcer factors apply to claims brought

under the Donnelly Act. (See, e.g., Mem. at 15-16; Opp. at 16-

17.) The New York Court of Appeals has not squarely addressed

this question, but it has noted that the Donnelly Act, “should gen-

erally be construed in light of Federal precedent and given a

different interpretation only where State policy, differences in

the statutory language or the legislative history justify such a re-

sult.” X.L.O. Concrete Corp. v. Rivergate Corp., 83 N.Y.2d 513, 518

(1994). Plaintiffs urge that the Donnelly Act’s lack of prohibition

from recovery of antitrust plaintiffs who have “not dealt directly

with the defendant” is itself indicative of New York’s different

policy with respect to antitrust such that “it is not conceivable

that the state’s highest court would apply [the] AGC factors to

bar Plaintiffs here.” (Opp. at 16.) However, in Gatt, the Second

Circuit explained “[w]e see no reason . . . to interpret the Don-

nelly Act differently than the Sherman Act with regard to

antitrust standing.” Gatt, 711 F.3d at 81.

Plaintiffs have not pointed to any post-Gatt authority from either

the Second Circuit or the New York Court of Appeals that com-

pels a different outcome here. Accordingly, the court holds that

the AGC factors apply to Plaintiffs’ claim under New York’s Don-

nelly Act, and dismisses Plaintiffs’ claim for lack of antitrust

standing for the reasons discussed above.

e. North Carolina

Amex cites a single federal district court case from Illinois for the

proposition that North Carolina would apply the AGC factors to

determine standing under its state antitrust law. (Mem. at 16

(citing Dairy Farmers, 2015 WL 3988488, at *15).) Plaintiffs re-

spond that the North Carolina Court of Appeals has held that

indirect purchasers have a cause of action under the state’s anti-

trust law, see Hyde v. Abbott Labs, Inc., 473 S.E.2d 680, 688 (N.C.

Ct. App. 1996), and “that the AGC factors do not apply in deter-

mining which indirect purchasers have standing to sue under the

North Carolina antitrust statutes,” Teague v. Bayer AG, 671 S.E.2d

550, 557 (N.C. Ct. App. 2009).

The court finds the Superior Court decision in Dicesare v. Char-

lotte-Mecklenburg Hosp. Auth., No. 16-CVS-16404, 2017 WL

1359599 (N.C. Super. Apr. 11, 2017), to be a cogent analysis of

the current state of the law on this issue in North Carolina. Dic-

esare involved a suit brought by consumers of various third-party

health insurance companies against the market-leading hospital

in the Charlotte-Mecklenburg area (the “Hospital”). Id. at *1-5.

Plaintiffs alleged that the Hospital required the third-party insur-

ers like Cigna and Blue Cross/Blue Shield (“BCBS”) to enter into

Anti-Steering provisions which restricted the insurers’ ability to

steer consumers to insurance plans that included the Hospital’s

lower-cost competitors. Id. The court explained plaintiffs’ allega-

tions as follows:

Plaintiffs allege that they pay for and receive health insur-

ance from Cigna and BCBS. The [Fist Amended Complaint]

alleges that the Hospital imposes Anti–Steering Provisions in

its contracts with the Four Insurers, which includes Cigna

and BCBS. Plaintiffs contend that the Anti–Steering Provi-

sions reduce competition between the Hospital and other

providers of acute inpatient hospital services in the Charlotte

Area and, as a result, Plaintiffs pay more for health insur-

ance, incur higher out-of-pocket costs, have fewer insurance

plans to choose from, and are denied access to truthful infor-

mation that would enable Plaintiffs to comparison-shop

based on cost and quality.

Id. at *7.

In finding that the plaintiffs had standing to assert a claim under

the North Carolina antitrust law, the Dicesare court made several

salient observations. First, the court held that “until the Supreme

Court of North Carolina rules otherwise, Teague is controlling.”5

Id. at 9. Second, Dicesare held that, under Teague, plaintiffs were

“not required at the pleading stage to prove a causal chain be-

tween the Hospital’s challenged conduct and the [p]laintiffs’

alleged injury.” Dicesare, 2017 WL 1359599, at *8 (citing Teague,

671 S.E.2d at 557-58). Third, unlike the AGC analysis, Dicesare

held that the inherent complexity of antitrust cases—and, specif-

ically, the “complicated questions of causation and damages”—

are not “sufficient reason[s] to dismiss for lack of standing.” Id.

Fourth, the court rejected the defendant Hospital’s argument that

plaintiff consumers lacked standing because the price premium

consumers paid to third-party insurance companies was “the re-

sult of the independent action of the insurance companies,”

5 Dairy Farmers, upon which Amex relies, rejected Teague for what it called

its “sometimes-dubious and often-difficult-to-follow analysis,” and chose to

rely on an earlier trial court decision in finding that North Carolina courts

would apply the AGC factors. Dairy Farmers, 2015 WL 3988488, at *15.

Yet, a federal court’s view that a state appellate court decision is wrongly

decided (or would lead to results with which the federal court would dis-

agree) is not grounds for the federal court to ignore the state court’s ruling.

finding instead that it would be premature to dismiss for lack of

standing on those grounds. Id. at *9.

The North Carolina Supreme Court declined to review the trial

court’s ruling in Dicesare. See Dicesare v. Charlotte-Mecklenburg

Hospital Authority, 370 N.C. 215 (2017) (order denying writ of

certiorari to review order of trial court). While this does not

equate to a wholesale adoption of Dicesare’s analysis by the high

court, it does add persuasive weight to Teague’s holding (empha-

sized by Dicesare) that the AGC factors “do not apply . . . under

the North Carolina antitrust statutes.” Teague, 671 S.E.1d at 557.

Therefore, the court finds that the AGC factors do not apply in

evaluating Plaintiffs’ claim under North Carolina law. Because

Plaintiffs’ “allegations . . . are sufficient to demonstrate standing,”

under North Carolina law, see Dicesare, 2017 WL 1359599, at *7,

the court finds that Plaintiffs’ North Carolina antitrust claim sur-

vives.6

6 Amex cites Dicesare for the proposition that, because the North Carolina

Supreme Court “has not spoken on the means . . . by which state courts are

to distinguish those indirect purchasers who have sustained actual injuries

from those who have sustained injuries that are too remote or attenuated

to warrant relief,” state courts in North Carolina “may still consider the

AGC factors.” (Reply at 7 n.7 (quoting Dicesare, 2017 WL 1359599, at

*12).) This is not an accurate representation of Dicesare. Dicesare notes that

the state’s “Court of Appeals expressly held that the AGC factors do not

apply in determining which indirect purchasers have standing to sue under

the North Carolina antitrust statues.” Dicesare, 2017 WL 1359599, at *11.

The court goes on to note that “antitrust cases—especially those involving

indirect purchasers—will often involve complicated causation and dam-

ages issues,” and that the state’s Supreme Court “has not spoken on this

precise complex issue.” Id. Recognizing the potential burdens and costs

faced by the parties should the case continue to discovery and the im-

portance of this issue to the state as a whole, Dicesare welcomed state

Supreme Court review of its decision, noting that it would exercise its dis-

cretion to stay further proceedings should the state Supreme Court take up

the issue. Id. Contrary to Amex’s representation, however, nowhere in this

f. Oregon

The court is not aware of binding authority from Oregon state

courts regarding the application of the AGC factors to determine

antitrust standing under Oregon law. Amex cites to a federal dis-

trict court decision predicting that the Oregon Supreme Court

would apply the AGC factors (Mem. at 15 (citing In re Dealer

Mgmt. Sys. Antitrust Litig., 362 F. Supp. 3d 510, 545 (N.D. Ill.

2019) (“Dealer Mgmt.”)), while Plaintiffs cite to a federal district

court decision that came to the opposite conclusion. (Opp. at 17

(citing Keurig, 383 F. Supp. 3d at 261).) The analysis in Dealer

Mgmt. is quite limited. There, the court reasoned that “the pres-

ence of a statutory harmonization provision (either statutory or

common law), absent any countervailing statutory law or case

law from a state appellate court, is sufficient to permit a district

court to apply federal antitrust standing law—including AGC—

to claims brought under that state’s antitrust laws.” Dealer Mgmt.,

362 F. Supp. 3d at 545. Because Oregon has a statutory harmo-

nization provision, the Dealer Mgmt. court held that the AGC

factors apply under Oregon law. In Keurig, by contrast, the court

disagreed, explaining that “the Oregon antitrust statute states

that federal precedents are persuasive, but not binding,” and

holding that “[a]bsent any authority from the Oregon state courts

regarding the application of the AGC factors to determine anti-

trust standing under Oregon law, [the court] cannot conclude

part of its analysis does the court mention the AGC factors, let alone hold

(or even suggest) that the state Supreme Court’s silence on this issue meant

that “state courts may still consider the AGC factors.” (Reply at 7 n.7.) To

the contrary, Dicesare discusses the AGC factors twice: first in the context

of Teague’s “controlling” holding that the AGC factors do not apply to de-

terminations of standing under the North Carolina antitrust statutes, and

second in the context of an earlier Superior Court case that applied a “mod-

ified” version of AGC, which Teague rejected. See Dicesare, 2017 WL

1359599, at *11-12.

that the Oregon Supreme Court would apply AGC.” Keurig, 383

F. Supp. 3d at 261.

The court finds Keurig to be the more persuasive opinion. A har-

monization provision in a state’s antitrust statute does not require

a state’s Supreme Court to find that state antitrust law must be

analyzed under the federal standard. That is particularly true

where, like here, the harmonization provision finds that federal

law is “merely persuasive”. Cf. In re Packaged Seafood Products

Antitrust Litig., 242 F. Supp. 3d 1033, 1108 (S.D. Cal. 2017). Ac-

cordingly, the court agrees with Judge Broderick that it “cannot

conclude that the Oregon Supreme Court would apply AGC,”

Keurig, 383 F. Supp. 3d at 261, and finds that Plaintiffs have

standing under Oregon antitrust law.

g. Tennessee

The Tennessee Trade Practices Act (“TTPA”) prohibits anti-com-

petitive conduct which tends to lessen “full and free competition

in the importation or sale of articles imported into this state . . .

or which tend to advance, reduce, or control the price or the cost

to the producer or the consumer of any such product . . . .” Tenn.

Code Ann. § 47-25-101. The TTPA provides a civil remedy to

“any person who is injured or damaged by such arrangement.”

Id. § 47-25-106. The Tennessee Supreme Court has held that this

includes claims brought by indirect purchasers. See Freeman In-

dust., LLC v. Eastman Chem. Co., 172 S.W.3d 512, 519-20 (Tenn.

2005).

The court is convinced the Supreme Court of Tennessee would

not apply the AGC factors. In holding that the TTPA included a

right of action for indirect purchasers, the Freeman court noted

that, unlike other state antitrust statutes, the TTPA lacks a man-

datory harmonization clause requiring consistency between

interpretation of the TTPA and interpretations of federal antitrust

laws. Id. at 519. The Freeman court also rejected some of the fac-

tors—such as the risk of multiple liability and recovery and the

speculative risk of complex damages assessments—that moti-

vated the Supreme Court in AGC to craft prudential standing

limitations on who may sue under federal antitrust law. Id. at

520. Finally, the parties have not provided the court with any

decision in which the Tennessee state courts apply the AGC fac-

tors to claims brought under the TTPA.7

Amex argues that Plaintiffs nonetheless lack standing because

they are neither direct nor indirect purchasers of any product the

sale of which is “controlled” by Amex. (Mem. at 17 (quoting

Tenn. Code Ann. § 47-25-106.) However, the Freeman court ex-

plained that the TTPA’s use of “control” includes “the ability to

exercise a restraining or directing influence over something.”

Freeman Indus., 172 S.W.3d at 517-18. Plaintiffs’ allegations that

Amex’s Anti-Steering Rules restrained the credit card transaction

market and caused Plaintiffs to pay more for consumer goods is

sufficient, at this stage, to establish standing to sue under the

TTPA.8

7 In lieu of the AGC factors, traditional constitutional standing principles

apply. A party has standing to sue under Tennessee law when it meets the

minimum constitutional requirements of standing under federal law. See,

e.g., In re Petition of Youngblood, 895 S.W.2d 322, 326 (Tenn. 1995)

(adopting federal constitutional standard); Cox v. Shell Oil Co., 196 S.W.3d

747, 757-58 (Tenn. Ct. App. 2005) (state law standing “parallels the con-

stitutional restriction on federal court jurisdiction to ‘cases and

controversies’”). As discussed above, Plaintiffs meet that baseline constitu-

tional standard.

8 Amex argues that Plaintiffs’ claim “is not an indirect purchaser claim,”

but “[r]ather, Plaintiffs allege that merchants passed some portion of al-

leged overcharges from credit card fees to consumers through increased

prices on some unknown portion of goods sold and services rendered. This

[c]ourt would need to track overcharges on countless items—paid by con-

sumers with no relationship to Amex whatsoever, to merchants who may

or may not accept Amex.” (Mem. at 18.) Yet, the Tennessee Supreme Court

C. Count III—State Consumer Protection Claims

Under Count III, Plaintiffs allege violations of the state consumer

protection laws of California, the District of Columbia, Florida,

Hawaii, Illinois, Massachusetts, Montana, New Hampshire, New

Mexico, Ohio, and Rhode Island. (Compl. ¶¶ 188-200.) Amex ar-

gues that Plaintiffs’ claims under California, Florida,

Massachusetts, and New Mexico law should be dismissed for lack

of standing under the laws of each respective state. (Mem. at 18-

23.)9 The court evaluates Plaintiffs’ standing to assert claims un-

der the laws of each state in turn.

1. California

Plaintiffs assert claims under the California’s Unfair Competition

Law (“UCL), Cal. Bus. & Prof. Code §§ 17200, et seq., based on

the same underlying conduct as their federal and state antitrust

claims. (Compl. ¶¶ 188-190.) However, under California law,

“[w]here a plaintiff fails to state an antitrust claim, and where an

unfair competition claim is based upon the same allegations,

such state claims are properly dismissed.” Formula One Licensing,

B.V. v. Purple Interactive Ltd., 2001 WL 34792530, at *4 (N.D. Cal.

Feb. 6, 2001); see also In re Wellpoint, Inc., Out-of-Network UCR

Rates Litig., 903 F. Supp. 2d 880, 927-28 (C.D. Cal. 2012) (dis-

missing UCL claims base on lack of antitrust standing for

plaintiffs’ Sherman Act claims). Here, the court has dismissed

has explicitly rejected the concerns Amex raises of complex damage assess-

ment and fear of multiple liability as relevant to a standing analysis under

TTPA (even though they are central to the AGC analysis).

9 Amex describes the claims brought under the laws of these four states as

Plaintiffs’ “remaining state consumer protection law claims” (Mem. at 18),

likely assuming that the claims brought under the consumer protection

laws of the states in which no named Plaintiff is a resident must be dis-

missed. However, as discussed supra, Langan compels the opposite result.

Therefore, Plaintiffs’ claims under the consumer protection laws of District

of Columbia, Hawaii, Illinois, Montana, New Hampshire, Ohio, and Rhode

Island survive Amex’s motion.

Plaintiffs’ underlying antitrust claims under both federal and Cal-

ifornia law. Therefore, because Plaintiffs have “made no attempts

to distinguish their antitrust claims from their consumer-protec-

tion claims,” Dairy Farmers, 2015 WL 3988488, at *18, the court

dismisses Plaintiffs’ claim under the UCL. Because Plaintiff An-

thony Oliver does not have a cause of action under the Sherman

Act, California antitrust law, or the UCL, he is dismissed from this

case.

2. Florida

The same reasoning applies to Plaintiffs’ claims under the Florida

Deceptive and Unfair Trade Practices Act (“FDUTPA”). See QSGI,

Inc. v. IBM Glob. Fin., No. 11-80880-CIV, 2012 WL 1150402, at

*4 (S.D. Fla. Mar. 14, 2012 )(“When, as here, plaintiff’s FDUTPA

claim is based on the same allegations as its antitrust claim, fail-

ure to establish a violation of antitrust law is sufficient to

conclude that the plaintiff has also failed to state a FDUPTA

claim.”); see also JES Props., Inc. v. USA Equestrian, Inc., No. 8:02-

cv-1585-T-24MAP, 2005 WL 1126665, at *19 (M.D. Fla. May 9,

2005). Because Plaintiffs’ claim under the FDUTPA is identical to

their antitrust claim, it must be dismissed. Plaintiff Michael

Thomas Reid, who lacks a cause of action under either the Sher-

man Act or the FDUPTA, is dismissed from this case.

3. Massachusetts

The Massachusetts Consumer and Business Protection Act, Mass.

Gen. Laws Ch. 93A (“CBPA”) provides a cause of action for “any

person . . . who has been injured by another person’s use or em-

ployment of any . . . unfair method of competition and unfair or

deceptive acts or practices in the conduct of any trade or com-

merce.” CBPA, § 2, § 9(1). Amex argues that Plaintiffs’ claim must

be dismissed because “Plaintiffs are consumers who have no busi-

ness dealings with Amex and are neither direct nor indirect

purchasers.” (Mem. at 20.)

Both Plaintiffs and Amex direct the court towards Ciardi v. F. Hoff-

mann-La Roche, Ltd., 436 Mass. 53 (2002), in which the Supreme

Judicial Court of Massachusetts analyzed the CBPA in detail. In

Ciardi, the court held that indirect purchasers can assert claims

for anticompetitive conduct under the CBPA, even where they

have no standing to bring such claims under Massachusetts state

antitrust law. Id. at 55. In so holding, the court emphasized that

the CBPA is “a statute of broad impact which creates new sub-

stantive rights and provides new procedural devices for the

enforcement of those rights.” Id. at 59. In affirming the trial

court’s denial of the defendants’ motion to dismiss, Ciardi explic-

itly rejected defendants’ argument that plaintiff had “failed to

allege a sufficiently close nexus between herself and the defend-

ants to state a claim under [the CBPA].” Id. at 65; see also id.

(“The defendants contend that plaintiff would be hard pressed to

show how a portion of an overcharge was passed on at each stage

of the distribution chain and by which defendants.”). The court

reasoned that “defendants’ contentions essentially relate to

whether the plaintiff can prove her claim under [the CBPA], not

whether she is entitled, as an indirect purchaser, to assert such a

claim.” Id. Finally, the Ciardi defendants argued that public pol-

icy considerations should compel the court to bar indirect

purchaser claims under the CBPA. In response, the court noted

that “it is the province of the Massachusetts Legislature to make

its own policy decisions about whether to permit claims by indi-

rect purchasers for antitrust violations under Massachusetts law.

We read the language of [the CBPA] as a clear statement of leg-

islative policy to protect Massachusetts consumers through the

authorization of such indirect purchaser actions.” Id. at 66-67.

The court finds that Ciardi supports the conclusion that Plaintiffs

have standing to sue under the CBPA.10 Ciardi makes clear that

the CBPA is to be construed broadly in light of its goals of pro-

tecting Massachusetts consumers, regardless of whether

Plaintiffs have standing under either federal or state antitrust

laws. Amex’s contention that Plaintiffs are not indirect purchas-

ers is unavailing. Ciardi explains that a CBPA plaintiff must

“allege[] a connection” between plaintiff and defendant, even if

it is an “indirect one.” Ciardi, 436 Mass. at 65. Here, Plaintiffs

have met this “relatively light burden,” id., by alleging such a con-

nection—namely, that Amex’s Anti-Steering Rules restrain

competition in such a way that Plaintiffs pay more for consumer

goods than they would absent Amex’s anticompetitive behavior.

4. New Mexico

Finally, New Mexico’s Unfair Practices Act (“NMUPA”) provides

that “[u]nfair or deceptive trade practices and unconscionable

trade practices in the conduct of any trade or commerce are un-

lawful.” N.M. Stat. Ann. § 57-12-3. The NMUPA defines

“unconscionable trade practice” as:

10 Amex cites to the federal district court opinion Cash Energy Inc. v.

Weiner, but that case is distinguishable. (Mem. at 20 (citing Cash Energy,

Inc. v. Weiner, 768 F. Supp. 892, 894 (D. Mass. 1991)).) Cash involved

landowners bringing suit against defendants who had stored chemical sol-

vents on an adjacent property that had allegedly contaminated plaintiffs’

property. Cash, 768 F. Supp. at 893. The court dismissed plaintiffs’ claim

under the CBPA, holding that plaintiffs and defendants did not have “some

transactional business relationship” as required by the CBPA. Id. at 894.

Here, by contrast, Plaintiffs are not neighboring landowners with a dispute

sounding in common law, but, accordingly to Plaintiffs, are participants in

the same “two-sided market” as Defendants. At this stage, those allegations

are sufficient—especially in light of the CBPA’s “broad impact” and “clear

statement of legislative policy to protect consumers,” Ciardi, 436 Mass. at

59, 65, factors that were not implicated in Cash.

an act or practice in connection with the sale, lease, rental or

loan, or in connection with the offering for sale, lease, rental

or loan, of any goods or services, including services provided

by licensed professionals, or in the extension of credit or in

the collection of debts that to a person's detriment:

(1) takes advantage of the lack of knowledge, ability, ex-

perience or capacity of a person to a grossly unfair degree;

or

(2) results in a gross disparity between the value received

by a person and the price paid.

Id. at § 57-12-2(E). Plaintiffs allege that Amex’s Anti-Steering

Rules constitute an “unconscionable trade practice” because it

“resulted in a gross disparity between the value received by mem-

bers of the Class and the price paid by them for goods and

services using an electronic form of payment.” (Compl. ¶

198(d).) Amex argues that Plaintiffs cannot sue for an NMUPA

violation because “Plaintiffs are neither direct nor indirect pur-

chasers of any product from Amex” (Mem. at 20), and “New

Mexico law makes clear that only those who purchase a good or

service from a defendant may sue under the NMUPA.” (Id. (citing

Hicks v. Eller, 280 P.3d 304 (N.M. Ct. App. 2012)).)

The court agrees with Amex and finds that Plaintiffs have not

stated a claim under the NMUPA. Hicks is instructive. That case

involved a claim under the NMUPA brought by a seller of certain

paintings to a defendant who subsequently sold the paintings to

other buyers for a much higher price than originally paid to the

plaintiff. Hicks, 280 P.3d at 307. The court held that the plaintiff

did not state a claim under the NMUPA because “the [NM]UPA

gives standing only to buyers of goods ands services,” and the

plaintiff who sold the paintings was not such a buyer. Id. at 309.

While the court acknowledged that the NMUPA “does not require

a transaction between a claimant and a defendant,” it explained

that the statute did require that “the claimant did purchase an

item that was at some point sold by the defendants.” Id. Plaintiffs

fail to meet this standard and therefore lack standing under the

NMUPA. Because Plaintiff Susan Burdette does not have a cause

of action under the Sherman Act, New Mexico antitrust law, or

the NMUPA, she is dismissed from this case.

COUNT IV—UNJUST ENRICHMENT

Under Count IV, Plaintiffs argue that New York law entitles them

to damages for unjust enrichment. (See Opp. at 23-24.)11 Plain-

tiffs allege that “[a]s a result of Defendants’ conduct, Plaintiffs

and other Class members in the State Damages Classes conferred

a benefit upon Defendants, Defendants received and retained

this benefit under such circumstances that it would be inequita-

ble and unconscionable to permit them to retain it without

paying the benefit’s reasonable value to Plaintiffs and other Class

members.” (Compl. ¶ 202.) The court agrees with Amex that this

claim should be dismissed.

The New York Court of Appeals has held that while a plaintiff

“need not be in privity with the defendant to state a claim for

unjust enrichment,” the connection between the defendant and

the plaintiff must not be “too attenuated.” Sperry v. Crompton

Corp., 8 N.Y.3d 204, 215-16 (2007); see also Carmona v. Spanish

Broad. Sys., Inc., No. 08-cv-4475 (LAK), 2009 WL 890054, at *6

(S.D.N.Y. Mar. 30, 2009) (plaintiffs must allege “direct dealings

or an actual, substantive relationship” with defendants.”). In

Sperry, for example, the Court of Appeals held that “the connec-

tion between the purchaser of tires and producers of chemicals

11 The complaint alleges claims for damages under the “law of unjust en-

richment of thirty-two jurisdictions.” (Compl. ¶ 138.) However, Plaintiffs

argue in their brief that the court should apply New York law to their unjust

enrichment claim, and Amex did not contest application of New York law

in its reply. (Opp. at 23-25; Reply at 10.) Because “implied consent is suf-

ficient to establish choice of law,” Krumme v. WestPoint Stevens, Inc., 238

F.3d 133, 138 (2d Cir. 2000), the court applies New York law.

used in the rubber-making process is simply too attenuated to

support” an unjust enrichment claim. Sperry, 8 N.Y.3d at 216; see

also Keurig, 383 F. Supp. 3d at 272 (dismissing unjust enrichment

claim brought under New York law because alleged relationship

between parties was “too attenuated.”). The court finds that, as

in Sperry and Keruig, the alleged relationship between the parties

is “too attenuated” to support a claim of unjust enrichment under

New York law. Accordingly, Count IV is dismissed with prejudice.

Because Plaintiff Gianna Valdes does not have a cause of action

under the Sherman Act, the Donnelly Act, or the law of unjust

enrichment, she is dismissed from this case.

CONCLUSION

For the foregoing reasons, Defendants’ (Dkt. 37) motion to dis-

miss is GRANTED in part and DENIED in part. Specifically:

• Count I is DISMISSED in its entirety with prejudice;

• Count II is DISMISSED in part. The claims that are dis-

missed are those asserted under the antitrust laws of:

California, Nevada, New Mexico, and New York. The

claims asserted under the antitrust laws of the remaining

24 jurisdictions remain;

• Count III is DISMISSED in part. The claims that are dis-

missed are those asserted under the consumer protection

laws of California, Florida, and New Mexico. The claims

asserted under the consumer protection laws of the re-

maining eight jurisdictions remain;

• Count IV is DISMISSED in its entirety with prejudice; and

• The following named Plaintiffs are dismissed from this

case: Anthony Oliver, Susan Burdette, Gianna Valdes,

Zachary Draper, and Michael Thomas Reid.

The Parties are DIRECTED to contact the chambers of Magistrate

Judge Gold regarding next steps in this case.

SO ORDERED.

Dated: Brooklyn, New York

April 30, 2020

_/s/ Nicholas G. Garaufis_

NICHOLAS G. GARAUFIS

United States District Judge