# Oliver v. American Express Company

> District Court, E.D. New York · January 25, 2021

URL: https://www.frixlaw.com/law-library/cases/10305603

## Case

- **Court:** District Court, E.D. New York
- **Decided:** January 25, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10305603

## How later opinions describe it (automated extraction)

- describing section 4 of the Sherman Act as “comparable” to Maryland’s antitrust law

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ANTHONY OLIVER, TERRY GAYLE QUINTON,
MEMORANDUM & ORDER
SHAWN O’KEEFE, ANDREW AMEND, SUSAN
19-CV-00566 (NGG) (SJB))
BURDETTE, GIANNA VALDES, DAVID

MOSKOWITZ, ZACHARY DRAPER, NATE
THAYER and MICHAEL THOMAS REID on
behalf of themselves and all other 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 non-Amex electronic forms of pay-
ment, challenge the non-discrimination provisions contained in
Amex’s contracts with merchants who accept its credit cards (the
“Anti-Steering Rules”). (Compl. (Dkt. 1) ¶ 1.) On April 30, 2020,
the court granted Amex’s motion to dismiss Plaintiffs’ federal an-
titrust claims, and granted in part and denied in part Amex’s
motion to dismiss Plaintiffs’ state antitrust and consumer protec-
tion claims. See Oliver v. Am. Exp. Co., No. 19-cv-566 (NGG),
2020 WL 2079510, at *19-20 (E.D.N.Y. Apr. 30, 2020). Now be-
fore the court is Amex’s motion for partial judgment on the
pleadings as to certain of Plaintiffs’ remaining state law claims
pursuant to Federal Rule of Civil Procedure 12(c). (See Mot. for
Part. J. on Pleadings (“Mot.”) (Dkt. 58).) For the following rea-
sons, Amex’s motion is GRANTED IN PART AND DENIED IN
PART.
BACKGROUND
The court assumes familiarity with the facts and history of this
case, which are described in detail in its April 30, 2020 memo-
randum and order (the “April M&O”). See Oliver, 2020 WL
2079510, at *1-4. Plaintiffs in this case challenge Amex’s Anti-
Steering Rules, which prevent merchants who accept Amex cards
from encouraging customers to use non-Amex cards, even where
another card is less expensive for the merchant to accept. Plain-
tiffs argue that the Anti-Steering Rules decrease competition in
the fees charged to merchants by Amex, Visa, Mastercard, and
Discover, and result in higher fees charged to merchants by the
non-Amex companies. Those higher fees, in turn, encourage mer-
chants to pass on the costs by charging higher prices to
consumers.
In its April M&O, the court first dismissed Plaintiffs’ claims under
Section 16 of the Clayton Act, 15 U.S.C. § 26. Oliver, 2020 WL
2079510, at *8. Applying the factors articulated in Associated
Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters
(“AGC”), 459 U.S. 519, 535 (1983) (the “AGC factors”), the court
held that Plaintiffs were not “efficient enforcers of the antitrust
law” and therefore lacked standing to pursue their federal anti-
trust claims. Id. at *8-12. Second, turning to Plaintiffs’ state law
antitrust claims, the court held that California, Nevada, New
Mexico, and New York all apply the AGC factors to determine
standing under their state antitrust laws; accordingly, the court
granted Amex’s motion to dismiss Plaintiffs’ claims under the an-
titrust laws of those states. Id. at *13-16. Third, the court granted
Amex’s motion to dismiss Plaintiffs’ consumer protection claims
under the laws of California, Florida, and New Mexico. Id. at *17-
19. Finally, the court granted Amex’s motion to dismiss Plaintiffs’
unjust enrichment claim under New York law. Id. at *19.
Following the April M&O, Plaintiffs’ remaining claims arise under
the antitrust laws of twenty-four states and the consumer protec-
tion laws of eight states. Amex now moves for judgment on the
pleadings with respect to Plaintiffs’ claims under the state anti-
trust laws of sixteen jurisdictions: Arizona, Illinois, Iowa, Maine,
Maryland, Michigan, Minnesota, Nebraska, New Hampshire,
North Dakota, Rhode Island, South Dakota, Tennessee, Utah,
Wisconsin, and the District of Columbia. (Amex Mem. in Supp.
of Mot. for Part. J. on Pleadings (“Mem.”) (Dkt. 59) at 1-2.) Plain-
tiffs concede the motion as to their claims under the antitrust
laws of Iowa and Nebraska, but oppose Amex’s motion as to their
antitrust claims under the laws of the other fourteen jurisdic-
tions. (Pls.’ Mem. in Opp. to Mot. (“Opp.”) (Dkt. 60) at 1.) Amex
also moves for judgment on the pleadings with respect to Plain-
tiffs’ claims under the consumer protection laws of five
jurisdictions: Illinois, Massachusetts, Montana, Ohio, and the
District of Columbia. (Mem. at 3.) Plaintiffs concede the motion
as to their claims under the consumer protection laws of Ohio
and the District of Columbia, but they oppose Amex’s motion as
to their consumer protection laws of the other three states. (Opp.
at 1.)
LEGAL STANDARD
In deciding a Rule 12(c) motion for judgment on the pleadings,
the court employs “the same standard as that applicable to a mo-
tion under Rule 12(b)(6), accepting the allegations contained in
the [nonmovant's pleading] as true and drawing all reasonable
inferences in favor of the nonmoving party.” Burnette v. Caroth-
ers, 192 F.3d 52, 56 (2d Cir. 1999). Thus, to withstand a motion
to dismiss or for judgment on the pleadings, a complaint “must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). As with a Rule 12(b)(6) motion, the court
assumes facts alleged in the complaint are true and draws all rea-
sonable inferences in the nonmovant's favor. See Harris v. Mills,
572 F.3d 66, 71 (2d Cir. 2009).
DISCUSSION
A. State Antitrust Claims
Under the court’s prior M&O, Plaintiffs lack standing to assert
claims under the antitrust laws of any states that apply the AGC
factors. The parties dispute whether the laws of the following ten
jurisdictions apply the AGC factors: Illinois, Maine, Maryland,
Michigan, New Hampshire, Rhode Island, South Dakota, Utah,
Wisconsin, and the District of Columbia. Amex argues that Plain-
tiffs’ claims under the antitrust laws of Illinois, Michigan, and the
District of Columbia also fail, even if the court finds that those
jurisdictions do not apply the AGC factors. Finally, Amex argues
that Plaintiffs’ claims under the antitrust laws of Arizona, Minne-
sota, North Dakota, and Tennessee likewise fail for independent
reasons. The court addresses each of these jurisdictions below.
1. Illinois
In support of its argument that Illinois courts would apply the
AGC factors to claims under Illinois’ antitrust law, Amex relies on
an Illinois Appellate Court decision that cites approvingly to AGC
and various federal court decisions. See Cnty. of Cook v. Phillip
Morris, Inc., 817 N.E.2d 1039, 1045-46 (Ill. App. Ct. 2004); see
also, e.g., O’Regan v. Arb. Fs., Inc., 121 F.3d 1060, 1066 (7th Cir.
1997) (“Federal antitrust standing rules apply under the Illinois
Antitrust Act”); United States ex rel. Blaum v. Triad Isotopes, Inc.,
104 F. Supp. 3d 901, 930 (N.D. Ill. 2015) (“[T]he [c]ourt sees
no reason why the Illinois Supreme Court would not follow
AGC”). Plaintiffs do not provide contrary state authority, but in-
stead argue that Cnty. of Cook “speaks only to general notions of
remoteness or proximate cause, which, although consistent with
AGC, are more expansive concepts than AGC’s five carefully de-
lineated factors.” (Opp. at 6 (quoting In re Lithium Ion Batteries
Antitrust Litig., No. 13-md-2420 (YGR), 2014 WL 4955377, at *9
(N.D. Cal. Oct. 2, 2014)). While Plaintiffs are correct that Cnty.
of Cook discussed issues beyond the AGC factors, it nonetheless
cited to AGC approvingly and specifically emphasized the direct-
ness factor, which is particularly relevant in this case. In light of
that reliance on AGC by an Illinois appellate court, as well as
Plaintiffs’ failure to present contrary authority from Illinois
courts, the court joins the Seventh Circuit and courts in the
Northern District of Illinois in holding that Illinois would apply
the AGC factors to claims brought under its antitrust statute. Ac-
cordingly, Amex’s motion for judgment on the pleadings is
granted with respect to Plaintiffs’ claims under Illinois’ antitrust
law.
2. Maine
Amex cites a state trial court opinion for the proposition that the
AGC factors apply under Maine law. See Knowles v. Visa U.S.A.,
Inc., No. Civ.A.CV-03-707, 2004 WL 2475284, at *5 (Me. Super.
Oct. 20, 2004). In Knowles, the court explained that “[it] is prob-
able that the Maine Law Court . . . would look to the [AGC]
factors in determining standing under Maine’s antitrust laws and
would apply those factors except to the extent those factors can-
not be reconciled with the legislature’s adoption of the Illinois
Brick repealer.” Id. However, in In re Keurig Green Mountain Sin-
gle-Serve Coffee Antitrust Litig., 383 F. Supp. 3d 187 (S.D.N.Y.
2019) (“Keurig”), Judge Broderick reasoned that “a complete
reading of Knowles makes apparent that its application of AGC is
not in lockstep with federal precedents,” noting that Knowles
held, in light of Maine’s Illinois Brick repealer statute, that the
directness or remoteness of the asserted injury factor under AGC
“should be disregarded entirely in any inquiry as to standing un-
der Maine’s antitrust laws.” Keurig, 383 F. Supp. 3d at 259
(quoting Knowles, 2004 WL 2475284, at *6). While Amex cor-
rectly notes that the Maine Supreme Court has held that Maine
generally looks to federal antitrust law to construe its antitrust
statute, see McKinnon v. Honeywell Int’l, Inc., 977 A.D.2d 420, 426
(2009), the court agrees with Keurig that it is “unable to conclude
that the highest court in Maine would apply AGC” to Plaintiffs’
claims because of the distinction between the two standards ar-
ticulated in Knowles. Keurig, 383 F. Supp. 3d at 260. Accordingly,
Amex’s motion for judgment on the pleadings as to Plaintiffs’
claims under Maine’s antitrust law is denied.
3. Maryland
Amex primarily relies on a Maryland appellate court decision and
a Maryland federal district court decision to argue that Maryland
state courts would apply the AGC factors under Maryland’s anti-
trust laws. See Waldorf Shopping Mall, Inc. v. Great Atl. & Pac. Tea
Co., No. 82-46, 1984 WL 15690 (Md. Cir. Ct. Feb. 16, 1984);
havePOWER, LLC v. Gen. Elec. Co., 183 F. Supp. 2d 779 (D. Md.
2002). Plaintiffs argue that neither case is indicative of whether
Maryland state courts would apply the AGC factors because both
were decided before Maryland enacted its Illinois Brick repealer
statute in 2017 and because “Maryland’s harmonization provi-
sion merely directs that courts ‘be guided by’ federal courts’
interpretation of federal antitrust laws, so does not support the
contention that Maryland’s highest court would adopt AGC even
as the Maryland legislature has now expressly granted indirect
purchasers standing to sue.” (Opp. at 7.)
To be sure, as the court has previously explained, “[a] harmoni-
zation provision in a state’s antitrust state does not require a
state’s Supreme Court to find that state antitrust law must be an-
alyzed under the federal standard.” Oliver, 2020 WL 2079510, at
*16. However, Maryland courts have gone further to describe
section 4 of the Sherman Act as “[a]n analogous civil enforce-
ment provision under the federal antitrust laws” to Maryland’s
antitrust statute. State v. Jonathan Logan, Inc., 301 Md. 63, 67-
68 (1984); see also In re Mid-Atlantic Toyota Antitrust Litig., 541
F. Supp. 62, 64 (1981) (describing section 4 of the Sherman Act
as “comparable” to Maryland’s antitrust law). The view of Mary-
land’s antitrust statute as comparable to its federal analogue,
coupled with the state’s harmonization provision and the Mary-
land decision in Waldorf Shopping Mall, suggests that Maryland
courts would apply the AGC factors to claims brought under Mar-
yland’s antitrust law. See havePOWER, LLC, 183 F. at 785-86 (D.
Md. 2002). Plaintiffs’ argument that the legislature’s adoption of
an Illionis Brick repealer, without more, demonstrates that Mar-
yland courts would not apply the AGC factors is unconvincing.
Accordingly, Amex’s motion for judgment on the pleadings is
granted as to Plaintiffs’ claims under Maryland’s antitrust law.
4. Michigan
Amex cites a Michigan appellate court case, see Stark v. Visa
U.S.A. Inc., 2004 WL 1879003, at *4-5 (Mich. Cir. Ct. 2004), as
well as numerous federal court decisions, to argue that Michigan
state courts would apply the AGC factors to claims brought under
Michigan’s antitrust law. (Mem. at 9 (citing Keurig, 383 F. Supp.
at 260; Energy Conversion Devices Liquidation Tr. ex rel. Madden
v. Trina Solar Ltd., No. 13-cv-14241, 2014 WL 5511517, at *7
(E.D. Mich. Oct. 31, 2014), aff’d sub nom. Energy Conversion De-
vices Liquidation Tr. v. Trina Solar Ltd., 833 F.3d 680 (6th Cir.
2016)).) While Plaintiffs point to multiple federal court decisions
that decline to apply the AGC factors to Michigan antitrust law,
they fail to provide any Michigan state law contrary to Stark,
which explicitly rejected the argument that Michigan’s Illinois
Brick repealer “also eliminated the [AGC] standing require-
ments.” Stark, 2004 WL 1879003, at *4; see also Keurig, 383 F.
Supp. 3d at 260 (“The Stark . . . cour[t] analyzed the relevant
statutory language and case law and concluded that the AGC fac-
tors should apply to the antirust standing determination.”).
Because Stark provides the clearest indication of how Michigan
courts would apply Michigan law, the court finds that Michigan
would apply the AGC factors. Accordingly, Amex’s motion for
judgment on the pleadings is granted as to Plaintiffs’ claims un-
der Michigan’s antitrust law.
5. New Hampshire
Amex relies on two federal court decisions that held that New
Hampshire courts would apply the AGC factors to claims brought
under New Hampshire’s antitrust statute. See In re Refrigerant
Compressors Antitrust Litig., No. 2:09-md-2042, 2013 WL
1431756, at *10 (E.D. Mich. Apr. 9, 2013); Donovan v. Digit.
Equip. Corp., 883 F. Supp. 775, 785 (D.N.H. 1994). Plaintiffs
counter that the most recent federal court decision to consider
whether New Hampshire would apply the AGC factors deter-
mined that it would not. See Jones v. Micron Tech. Inc., 400 F.
Supp. 3d 897, 914 (N.D. Cal. 2019). In re Refrigerant’s analysis is
quite limited; there, the court applied the AGC factors to claims
under New Hampshire law because it had a harmonization pro-
vision. 2013 WL 1431756, at *10. However, as the court has
previously explained, “[a] harmonization provision in a state’s
antitrust state does not require a state’s Supreme Court to find
that state antitrust law must be analyzed under the federal stand-
ard” especially when “the harmonization provision finds that
federal law is merely persuasive.” Oliver, 2020 WL 2079510, at
*16. New Hampshire has one such “permissive” harmonization
provision1, and therefore In re Refrigerant’s analysis is not per-
suasive on this point.

1 See N.H. Rev. Stat. Ann. § 356:14 (“In any action or prosecution under
this chapter, the courts may be guided by interpretations of the United
States’ antitrust laws.”).
However, in Minuteman, LLC v. Microsoft Corp., 147 N.H. 634,
639 (2002), the New Hampshire Supreme Court expressly
adopted the Illinois Brick rule against indirect purchaser suits,
holding that “it is sound to limit antitrust lawsuits to direct pur-
chasers.” See also LaChance v. U.S. Smokeless Tobacco Co., 156
N.H. 88, 93 (2007) (“We have held . . . that indirect purchasers
may not bring claims under the state antitrust statute.”). Plain-
tiffs, who are non-Amex cardholders, are not direct purchasers.
Accordingly, they lack standing under Minuteman, and Amex’s
motion for judgment on the pleadings is granted as to Plaintiffs’
claims under New Hampshire’s antitrust law. See Keurig, 383 F.
Supp. at 263-64.
6. Rhode Island
The court agrees with Amex that Rhode Island courts would ap-
ply the AGC factors to claims brought under Rhode Island’s
antitrust laws. Unlike other states that have permissive harmoni-
zation statutes, Rhode Island’s Supreme Court has held that “the
Rhode Island Antitrust Act must be construed in harmony with
judicial interpretations of comparable federal antitrust statutes
insofar as practical, except where provisions of this chapter are
expressly contrary to applicable federal provisions as construed.”
See ERI Max Enterm’t, Inc. v. Streisand, 690 A.3d 1351, 1335 n.1
(1997). Plaintiffs have not offered a compelling reason why this
court is not bound by that instruction, and the court joins other
federal courts to apply federal antitrust standing analysis to a
state antitrust claim under Rhode Island law. See, e.g., Steward
Care Sy., LLC v. Blue Cross & Blue Shield of R.I., 997 F. Supp. 2d
142, 157 (D.R.I. 2014). Accordingly, Amex’s motion for judg-
ment on the pleadings is granted as to Plaintiffs’ claims under
Rhode Island’s antitrust law.
7. South Dakota
The parties cite competing federal district court decisions both
applying and declining to apply the AGC factors to claims brought
under South Dakota’s antitrust laws. Compare Keurig, 383 F.
Supp. 3d at 261 (applying AGC) and In re Dynamic Random Ac-
cess Memory (Dram) Antitrust Litig., 516 F. Supp. 2d 1072, 1095
(N.D. Cal. 2007) (same) with In re Flash Memory Antitrust Litig.,
643 F. Supp. 2d 1133, 1151-53 (N.D. Cal. 2009) (declining to
apply AGC) and In re TFT-LCD (Flat Panel) Antitrust Litig., 586 F.
Supp. 2d 1109, 1123 (same). The court finds Amex’s argument
more persuasive. First, as Amex notes, the South Dakota Su-
preme Court has held that “great weight should be given to the
federal cases interpreting the federal [antitrust] statute.” Byre v.
City of Chamberlain, 362 N.W.2d 69, 74 (S.D. 1985). Second, as
the court in Keurig explained, there is precedent from a South
Dakota trial court applying the AGC factors to dismiss antitrust
claims under South Dakota law. See Keurig, 383 F. Supp. 3d at
261 (citing Cornelison v. Visa U.S.A., Inc., No. 13-cv-1350 (S.D.
Cir. Ct. Sept. 28, 2004)). Taken together, Byre and Cornelison
suggest that South Dakota would apply the AGC factors. Accord-
ingly, Amex’s motion for judgment on the pleadings is granted as
to Plaintiffs’ claims under South Dakota’s antirust law.
8. Utah
Amex relies on Utah’s harmonization provision and a single fed-
eral district court case to argue that Utah courts would apply the
AGC factors to claims brought under Utah’s antitrust statute. See
Utah Code Ann. § 76-10-3118 (“The Legislature intends that the
courts, in construing this act, will be guided by interpretations
given by the federal courts to comparable federal antitrust stat-
utes and by other state courts to comparable state antitrust
statutes”); TravelPass Grp., LCC v. Caesars Ent. Corp., No. 5:18-
cv-153 (RWS) (CMC), 2019 WL 5691996, at *8 n.10 (E.D. Tex.
Aug. 29, 2019), report and recommendation adopted, 2019 WL
4727425 (E.D. Tex. Sept. 27, 2019). Utah’s harmonization pro-
vision, however, is permissive and the TravelPass court’s analysis
does not engage with whether Utah courts would apply the AGC
factors; instead, it simply notes that the Utah statute is identical
to the Sherman Antitrust Act. Without more, the court cannot say
that Utah courts would apply the AGC factors to claims brought
under Utah’s antitrust statute. Accordingly, Amex’s motion for
judgment on the pleadings is denied as to Plaintiffs’ claims under
Utah’s antitrust law.
9. District of Columbia
The parties cite competing D.C. Superior Court decisions to sup-
port their respective positions about whether the AGC factors
apply to Plaintiffs’ District of Columbia antitrust claim. Compare
Peterson v. Visa U.S.A.. Inc., No. Civ A. 03-8080, 2005 WL
1403761 (D.C. Super. Ct. Apr. 22, 2005) (applying AGC factors
to claim under D.C. antitrust statute) with Holder v. Archer Dan-
iels Midland Co., No. 96-2975, 1998 WL 1469620, at *5 (D.C.
Super. Ct. Nov. 4, 1998) (holding that indirect purchasers had
antitrust standing under the D.C. antitrust statute without apply-
ing the AGC factors). Amex’s argument that Holder “concerned
only whether the Illinois Brick rule applied to claims under the
D.C. antitrust law,” (Reply (Dkt. 61) at 7), fails to address
Holder’s explicit holding that the D.C. antitrust statue “was
passed to distinguish D.C. antitrust law from federal law with re-
spect to standing for indirect purchasers.” Holder, 1998 WL
1469620, at *3 n.4. Moreover, Amex also fails to provide further
authority as to why Peterson, and not Holder, is controlling. See
Keurig, 383 F. Supp. 3d at 258 (“Absent a pronouncement from
the D.C. Court of Appeals or more trial court decisions defini-
tively pointing in one decisional direction or another, there is no
apparent reason to consider Peterson as more authoritative than
Holder.”); see also Los Gatos Mercantile, Inc. v. E.I. DuPont De
Nemours and Co., No. 13-cv-1180 (BLF), 2015 WL 4755335, at
*19 (N.D. Cal. Aug. 11, 2015). Accordingly, Amex’s motion for
judgment on the pleadings with respect to Plaintiffs’ claims under
D.C.’s antitrust law is denied.
10. Wisconsin
Amex cites to a Wisconsin trial court decision, Strang v. Visa
U.S.A., Inc., No. 03-cv-11323, 2005 WL 1403769, at *2-5 (Wis.
Cir. Ct. Feb. 8, 2005), to support its claim that Wisconsin courts
would apply the AGC factors to claims brought under Wisconsin’s
antitrust law. See also In re G-Fees Antitrust Litig., 584 F. Supp.
2d 26, 41-42 (D.D.C. 2008) (relying on Strang to find that Wis-
consin courts would apply the AGC factors to claims under
Wisconsin’s antitrust statute). Plaintiffs argue that Strang is not
persuasive because it failed to properly consider the Wisconsin
Court of Appeals’ decision in Obstetrical & Gynecological Assocs.
of Neenah, S.C. v. Landig, 384 N.W.2d 719 (Wis. Ct. App. 1986).
Landig, however, concerned a separate provision of Wisconsin’s
antitrust law and did not discuss AGC, instead analyzing whether
a separate “target area” test applied to the claims at bar. See Lan-
dig, 384 N.W.2d at 721-24. Strang, decided two decades after
Landig, gives a reasoned analysis for why the AGC factors apply,
and the court sees no reason to doubt that other Wisconsin courts
would follow suit. Accordingly, Amex’s motion for judgment on
the pleadings with respect to Plaintiffs’ claims under Wisconsin’s
antitrust law is granted.
11. Minnesota
Amex concedes that the AGC factors do not apply to claims under
Minnesota’s antitrust statute. (Mem. at 13.) However, Amex ar-
gues that Plaintiffs’ claims are nonetheless too attenuated to
survive under the Minnesota Supreme Court’s decision in Lorix v.
Crompton Corp., 736 N.W.2d 619, 627 (Minn. 2007). (Id.) In Lo-
rix, the court declined to apply the AGC factors to claims under
Minnesota’s antitrust law and noted that “the Minnesota antitrust
law contains an expansive grant of standing designed to protect
Minnesota citizens from sharp commercial practices.” Lorix, 736
N.W.2d at 627. Nonetheless, the court explained that “[s]tanding
under Minnesota antitrust law must be defined by some pruden-
tial limits informed by foreseeability, proximate cause,
remoteness, and relation of the injury to the purposes of the an-
titrust law.” Id. at 631. As an example of a claim that would not
meet this prudential limitation, the court cited to Gutzwiller v.
Visa U.SA., Inc., No. C4-04-58, 2014 WL 2114991, at *5-9 (Minn.
Dist. Ct. Sept. 15, 2004). That case involved claims on behalf of
plaintiff consumers against Visa and Mastercard who argued that
“the overcharges forced upon merchants by Visa and Mastercard
were passed on to consumers in the form of higher prices on es-
sentially every good sold in the state of Minnesota.” Lorix, 736
N.W.2d at 632. Noting that the Gutzwiller plaintiffs “did not pur-
chase, directly or indirectly, any product or service provided by
or manufactured with components from Visa or Mastercard,” the
court in Lorix went on to explain that “[w]hatever the precise
prudential limits on Minnesota antitrust standing, we do not be-
lieve that the legislature intended to create ‘consumer standing’
by allowing every person in the state to sue for an antitrust vio-
lation simply by virtue of his or her status as a consumer.” Id.
Plaintiffs urge that, pursuant to the Supreme Court’s decision in
Lexmark Int’l v. Static Control Components, Inc., 572 U.S. 118
(2014), the prudential standing concerns articulated by the court
in Lorix “can play no role with respect to any state antitrust stat-
ute once it is determined that AGC does not apply.” (Opp at. 14-
15.) Yet, Lexmark’s discussion of prudential standing did not pur-
port to address the way state courts interpret their own state’s
antitrust laws, which is at issue here. Furthermore, Amex is cor-
rect that Lorix’s finding that the Gutzwiller’s plaintiffs’ allegations
“that the overcharges forced upon merchants by Visa and Mas-
tercard were passed on to consumers in the form of higher prices”
were not sufficient to establish standing under Minnesota’s anti-
trust statute suggests that Plaintiffs’ claims in this case would
likewise fail. Lorix, 736 N.W.2d at 632; see also Oliver, 2020 WL
2079510, at *9 (explaining that “[t]he crux of Plaintiffs’ argu-
ment is that Amex’s Anti-Steering Rules have led Visa,
Mastercard, and Discover to raise merchant fees,” which “mer-
chants have passed on . . . to consumers.”). Accordingly, the court
grants Amex’s motion for judgment on the pleadings as to Plain-
tiffs’ claims under Minnesota’s antitrust law.
12. Tennessee
Amex argues that Plaintiffs’ claims under Tennessee’s antitrust
statute must be dismissed because the antitrust statute “applies
only to tangible goods, not intangible services.” (Mem. at 16 (cit-
ing Bennett v. Visa U.S.A. Inc., 198 S.W.3d 747, 751 (Tenn. Ct.
App. 2006)).) Amex argues that the court should therefore dis-
miss Plaintiffs’ claim under Tennessee law because it “involves
intangible payment processing services that are not covered by
the Tennessee antitrust statute.” Id. Plaintiffs object, arguing that
their standing should be determined under the “substantial ef-
fects” standard articulated by the Tennessee Supreme Court in
Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 512, 523
(Tenn. 2005), which requires them to “show that the anticom-
petitive conduct affects Tennessee trade or commerce to a
substantial degree.” (Opp. at 15.) In addition, Plaintiffs contend
that Amex’s argument regarding the intangible nature of the ser-
vices at issue “ignores the Supreme Court’s finding . . ., which
made clear that the product that credit-card companies sell is
transactions, not services to merchants.” (Id. (quoting Ohio v.
Am. Exp. Co., 138 S. Ct. 2274, 2287 (2018)).)
The plain language of the Tennessee appellate court’s decision in
Bennett, to which this court must defer, establishes that Amex has
the more persuasive position. The court in Bennett explained that
“[t]he law is well settled that the [Tennessee antitrust statute]
applies only to tangible goods, not intangible services,” and ex-
plicitly characterized “conduct involv[ing] payment card
processing” as “services, not products.” Bennett, 198 S.W.3d at
751-52. Based on this precedent, the court concludes that Ten-
nessee courts would likewise consider Amex’s alleged
anticompetitive activity to constitute intangible services, and
therefore as beyond the scope of the state’s antitrust statute.2 Ac-
cordingly, the court grants Amex’s motion for judgment on the
pleadings as to Plaintiffs’ claim under Tennessee’s antitrust law.
13. Arizona and North Dakota
Amex argues that Plaintiffs lack standing under Arizona antitrust
law, independent of the applicability of the AGC factors, based
on the Arizona trial court decision in Consiglio-Tseffos v. Visa
U.S.A., Inc., No. CV 2003-020170, 2004 WL 3030043, at *1 (Ariz.
Super. Ct. Dec. 8, 2004). (Mem. at 13-14.) That case involved a
suit to recover damages for alleged price increases on goods sold
by merchants who accepted the defendant credit-card compa-
nies’ credit and debit services. Consiglio-Tseffos, 2004 WL
3030043, at *1. Noting that plaintiffs were “certainly indirect vic-
tims of the [d]efendants’ conduct,” the court held that plaintiffs
were nonetheless not “indirect purchasers of the services,” as re-
quired under Arizona antitrust law. Id. (“The services sold by
[d]efendants are the right to use Mastercard’s and Visa’s debit
and credit services. The [p]laintiffs do not purchase those ser-
vices.”). Amex makes the same argument regarding Plaintiffs’
claim under North Dakota’s antitrust law. (Mem. at 14 (citing
Beckler v. Visa U.S.A. Inc., No. Civ. 09-04-C-0030, 2004 WL
2475100, at *4 (N.D. Dist. Ct. Sept. 21, 2004).) Amex argues that
Plaintiffs here are likewise not indirect purchasers under Arizona
or North Dakota law and therefore lack standing.
Plaintiffs object with the same argument as addressed and re-
jected above, grounded in the Supreme Court’s decision in

2 Plaintiffs’ argument that Bennett overlooks Freeman is not convincing in
light of the fact that Bennett cites to Freeman’s “substantial effects” test in
full. See id. at 756.
Lexmark. Further, Plaintiffs’ contention that “the lone question to
consider here is whether Plaintiffs have pleaded that their injury
is proximately caused by Amex’s Anti-Steering Rules,” (Opp. at
2), fails to engage with Consiglio-Tseffos, Beckler, or any other Ar-
izona or North Dakota case law. Accordingly, the court grants
Amex’s motion for judgment on the pleadings as to Plaintiffs’
claim under Arizona’s antitrust law and North Dakota’s antitrust
law.
B. State Consumer Protection Claims
Amex also initially moved for judgment as a matter of law as to
Plaintiffs’ consumer protection claims under the laws of Mon-
tana, Ohio, Illinois, Massachusetts, and the District of Columbia.
(Mem. at 16-24.) Plaintiffs concede the motion as to their con-
sumer protection claims under Ohio and District of Columbia.
(Opp. at 1 n.1.) Amex concedes Plaintiffs may proceed at this
stage with their consumer protection claims under the laws of
Montana and Ohio. (Reply at 1 n.1.) Accordingly, the parties’
only disputes as to whether Plaintiffs may proceed with their con-
sumer protection claims concern the laws of Illinois and
Massachusetts.
1. Illinois
Relying on Laughlin v. Evanston Hosp., 550 N.E.2d 986, 993 (Ill.
1990) and Gaebler v. N.M. Potash Corp., 675 N.E.2d 228, 230 (Ill.
App. Ct. 1996), Amex argues that Plaintiffs’ consumer protection
claim under Illinois law must be dismissed because the claim im-
properly “regurgitates their alleged antitrust injury.” (Mem. at
19.) In Laughlin, the Illinois Supreme Court held that Illinois’
consumer protection statute “was not intended to be an addi-
tional antitrust enforcement mechanism, but instead, the
language of the Act shows that its reach was to be limited to con-
duct that defrauds or deceives consumers or others.” In re
Loestrin 24 FE Antitrust Litig., 410 F. Supp. 3d 352, 372 (D. R. I.
2019)(quoting Laughlin, 550 N.E.2d at 993). Amex argues that
Laughlin therefore bars Plaintiffs’ claim. Plaintiffs contend that
Amex stretches Laughlin too far. See Sergeants Benevolent Ass’n
Health & Welfare Fund v. Actavis, plc, No. 15-cv-6549 (CM), 2018
WL 7197233, at *41-42 (S.D.N.Y. Dec. 26, 2018) (“Laughlin
stands for the proposition that the [Illinois consumer protection
statute] is not a safety net that serves to catch residual anticom-
petitive behavior, although it does not speak to whether [the
statute] countenances claims are also actionable under [Illinois’
antitrust statute]”); see also Batson v. Live Nation Entm’t, Inc., 746
F.3d 827, 831 (7th Cir. 2014) (“It remains possible . . . that an
unfair practice might be covered by both the antitrust law and
the [consumer protection statute].”).
While there are compelling arguments on both sides, the court
finds that Amex has not demonstrated that Laughlin prohibits
Plaintiffs’ consumer protection claim under Illinois law. As the
Seventh Circuit explained in Batson, while the court in Laughlin
“was concerned about the possibility that the Consumer Fraud
Act might morph into an enforcement mechanism for all antitrust
violations, on the theory that all such violations reflect unfair
practices,” it nonetheless “remains possible . . . that an unfair
practice might be covered by both the antitrust law and the Con-
sumer Fraud Act.” 746 F.3d at 831; see also Siegel v. Shell Oil Co.,
480 F. Supp. 2d 1034, 1048 (N.D. Ill. 2007) (“Laughlin is silent
as to . . . whether consumers can elect to pursue a remedy under
the Consumer Fraud Act where the Illinois Antitrust Act may also
provide relief”); Hill v. PS Illinois Tr., 856 N.E.2d 560, 568 (Ill.
Ct. App. 2006) (“a plaintiff may allege that conduct is unfair un-
der the [consumer protection statute] without alleging that the
conduct is deceptive”). The court disagrees with Amex that the
Seventh Circuit, and courts in the Northern District of Illinois and
Southern District of New York, have “misread” Laughlin; to the
contrary, their decisions highlight the limits of Laughlin’s hold-
ing. Accordingly, Amex’s motion for judgment on the pleadings
as to Plaintiffs’ claim under Illinois’ consumer protection law is
denied.
2. Massachusetts
Amex argues that Plaintiffs’ consumer protection claim under
Massachusetts law fails because Plaintiffs fail to adequately al-
lege that the relevant transactions and actions “occur[red]
primarily and substantially” within Massachusetts, as required by
statute. See Bushkin Assocs., Inc. v. Raytheon Co., 473 N.E.2d 662,
671 (Mass. 1985); see also Mass. Gen. Laws. Ann. Ch. 93A, § 11.
In particular, Amex argues that Plaintiffs’ allegation that “De-
fendants entered into contracts or combinations between two or
more persons in restraining of trade or commerce in the relevant
market/s, a substantial part of which occurred in Massachusetts,”
is too conclusory to establish that Amex’s conduct primarily oc-
curred in Massachusetts. (Mem. at 22 (citing Compl. ¶ 195).)
Plaintiffs respond that they have sufficiently alleged the “intra-
state” pleading requirement under Massachusetts’s consumer
protection law and that it is premature to dismiss their claim at
this stage without first giving Plaintiffs an opportunity to develop
the factual record.
The court finds the First Circuit’s opinion in Fishman Transducers,
Inc. v. Paul, 684 F.3d 187 (1st Cir. 2012) particularly relevant. In
that case, the court examined the “primarily and substantially”
test as articulated by the Massachusetts Supreme Judicial Court
in Kuwaiti Danish Computer Co. v. Digital Equip. Co., 781 N.E.2d
787, 799 (2003). The test requires a defendant arguing for dis-
missal of a claim under the state’s consumer protection law to
show that “the center of gravity of the circumstances that [gave]
rise to the claim were not primarily and substantially within the
Commonwealth.” See Paul, 684 F.3d at 197. The First Circuit, in
considering that test, concluded that “[w]here wrongdoing is not
focused on Massachusetts but has relevant and substantial im-
pact across the country, the ‘primarily’ requirement . . . cannot be
satisfied.” Id.; see also Uncle Henry’s Inc. v. Plaut Consulting Co.,
Inc., 399 F.3d 33, 45 (1st Cir. 2005) (“If the significant contacts
of the competing jurisdictions are approximately in the balance,
the conduct in question cannot be said to have occurred primarily
and substantially in Massachusetts.”). Here, there is no doubt
that Plaintiffs have alleged conduct that has a “relevant and sub-
stantial impact across the country”; therefore, they cannot
maintain a claim under Massachusetts’ consumer protection
law.3 Accordingly, Amex’s motion for judgment on the pleadings
is granted as to Plaintiffs’ claim under Massachusetts’ consumer
protection law.
CONCLUSION
For the foregoing reasons, Defendants’ (Dkt. 58) motion for judg-
ment on the pleadings is GRANTED in part and DENIED in part.
Specifically,
• The motion is granted as to Plaintiffs’ claims under the
antitrust statutes of Arizona, Illinois, Maryland, Michigan,
Minnesota, Iowa, Nebraska, New Hampshire, North Da-
kota, Rhode Island, South Dakota, Tenneesee, and
Wisconsin. The motion is denied as to Plaintiffs’ claims
under the antitrust statutes of Maine, Utah, and the Dis-
trict of Columbia.
• The motion is granted as to Plaintiffs’ claims under the
consumer protection statutes of the District of Columbia,
Massachusetts, and Ohio. The motion is denied as to

3 Plaintiffs rely on In re Solodyn (Minocycline Hydrochloride) Antitrust Litig.,
No. 14-md-2503 (DJC), 2015 WL 5458570, at *16 (D. Mass. Sept. 16,
2015), for the proposition that they have satisfied the “intrastate” pleading
standard. That argument is unavailing, because In re Solodyn concerned
the state’s antitrust law, not its consumer protection law and the attendant
requirement that the alleged harm be primarily intrastate.
Plaintiffs’ claims under the consumer protection statutes
of Illinois, Montana, and Ohio.
The Parties are DIRECTED to contact the chambers of Magistrate
Judge Bulsara regarding next steps in this case.
SO ORDERED.

Dated: Brooklyn, New York
January 25, 2021

_/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/10305603. Public record. Not legal advice.