# Oliver v. American Express Company

> District Court, E.D. New York · April 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10304131

## Case

- **Court:** District Court, E.D. New York
- **Decided:** April 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304131. Public record. Not legal advice.