April 18, 2012 – Lisa Nass-Romero, on behalf of herself and all others similarly situated v. Visa U.S.A. Inc. and Mastercard International Incorporated, No. 30,540

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	April 18, 2012
NO. 30,540
LISA NASS-ROMERO,
on behalf of herself and all
others similarly situated,
Plaintiff-Appellant,
v.
VISA U.S.A. INC. and MASTERCARD
INTERNATIONAL INCORPORATED,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Sarah M. Singleton, District Judge
Youtz & Valdez, P.C.
Shane C. Youtz
Albuquerque, NM
Cuneo Gilbert & LaDuca, LLP
Jonathan W. Cuneo
Washington, D.C.
Cuneo Gilbert & LaDuca, LLP
Daniel Cohen
Alexandria, VA

Law Offices of Gordon Ball
Gordon Ball
Knoxville, TN
Hagens Berman LLP
George Samson
Seattle, WA
for Appellant
Jones, Snead, Wertheim &
Wentworth, P.A.
Jerry Todd Wertheim
Santa Fe, NM
Paul, Weiss, Rifkind, Wharton
& Garrison LLP
Kenneth A. Gallo
Washington, D.C.
Gary R. Carney
New York, NY
for Appellee MasterCard International Incorporated
Rodey, Dickason, Sloan, Akin
& Robb, P.A.
Leslie McCarthy Apodaca
Albuquerque, NM
Arnold & Porter LLP
Robert C. Mason
New York, NY
for Appellee Visa U.S.A. Inc.

OPINION
CASTILLO, Chief Judge.
{1} 	Plaintiff Nass-Romero, seeking to represent a class of New Mexico
consumers, brought suit against two credit card companies alleging common
law claims, violations of the New Mexico Antitrust Act (NMAA), NMSA 1978,
Sections 57-1-1 through -15 (1891, as amended through 1987), and violations
of the New Mexico Unfair Practices Act (UPA), NMSA 1978, Sections 57-12-1
through -26 (1967, as amended through 2009). The district court dismissed the
complaint. 	Plaintiff appeals the dismissal of only those claims under the
NMAA. We affirm.
I. 	BACKGROUND
{2} 	We begin by providing a short history of the events leading to the filing
of this complaint. In 1996, merchants and retail trade associations sued Visa
U.S.A. Inc., and MasterCard International Incorporated (Visa, MasterCard, or,
together, Defendants) alleging that Defendants violated federal antitrust laws
by forcing merchants who accepted their credit cards in the regular course of
business 	to 	also 	accept 	the 	companies’ 	debit 	cards. 	See 	In 	re 	Visa
Check/MasterMoney Antitrust Litig., 192 F.R.D. 68, 73 (E.D.N.Y. 2000), aff’d,
280 F.3d 124 (2d Circ. 2001). 	The merchants claimed that such a “tying”

2
arrangement was an attempt to monopolize the debit card market, forcing the
merchants to pay debit card fees that were higher than those provided by other
debit networks. 	See id. 	A class of more than four million merchants was
certified in 2000. 	See id. at 73. 	In 2003, the parties settled, and Visa and
MasterCard agreed to pay more than $3 billion into a settlement fund. 	See In
re Visa Check/MasterMoney Antitrust Litig., 297 F. Supp. 2d 503, 506-07
(E.D.N.Y. 2003). The settlement was approved by the court, see id. at 512, and
affirmed at the appellate level. See Wal-Mart Stores, Inc. v. Visa U.S.A., Inc.,
396 F.3d 96, 124 (2d Cir. 2005).
{3} 	On the heels of that massive lawsuit and settlement, consumers in
eighteen other states and the District of Columbia filed class-action suits
against Defendants alleging violations of the individual states’ antitrust laws
and, in some cases, violations of the states’ consumer protection laws. 	The
consumers claimed that the tying arrangements that resulted in higher debit
processing fees for merchants forced those merchants to pass the cost along to
all consumers in the form of higher prices for all retail goods subsequently
sold. Courts dismissed the consumer cases in fourteen states and in the District

1 See Consiglio-Tseffos v. Visa U.S.A., Inc., 2004 WL 3030043 (Ariz. Super. Ct., Dec.
8, 2004; In re Credit/Debit Card Tying Cases, 2004 WL 2475287 (Cal. Super. Ct.,
Oct. 14, 2004); Goldberg v. Visa U.S.A., Inc., 2007 WL 2011732 (D.C. Super. Ct.,
March 2, 2007); Peterson v. Visa U.S.A., Inc., 2005 WL 1403761 (D.C. Super. Ct.,
April 22, 2005); Southard v. Visa U.S.A. Inc., 734 N.W.2d 192 (Iowa 2007); Moore
v. Visa U.S.A., Inc., 2004 WL 3030032 (Kan. Dist. Ct., Nov. 15, 2004); Knowles v.
Visa U.S.A. Inc., 2004 WL 2475284 (Me. Super. Ct., Oct. 20, 2004); Stark v. Visa
U.S.A., Inc., 2004 WL 1879003 (Mich. Cir. Ct., July 23, 2004); Smith v. Visa U.S.A.,
Inc., 2005 WL 1936336 (Minn. Dist. Ct., July 12, 2005); Gutzwiller v. Visa U.S.A.,
Inc., 2004 WL 2114991 (Minn. Dist. Ct., Sept. 15, 2004); Tackitt v. Visa U.S.A., Inc.,
2004 WL 2475281 (Neb. Dist. Ct., Oct. 19, 2004); Kanne v. Visa U.S.A. Inc., 723
N.W.2d 293 (Neb. 2006); Ho v. Visa U.S.A., Inc., 793 N.Y.S.2d 8 (N.Y. App. Div.
2005); Crouch v. Crompton Corp., 2004 WL 2414027 (N.C. Super. Ct., Oct. 28,
2004); Beckler v. Visa U.S.A., Inc., 2004 WL 2475100 (N.D. Dist. Ct., Sept. 21,
2004); Cornelison v. Visa U.S.A., Inc., No. 03-1350 (S.D. Cir. Ct., Sept. 29, 2004);
Bennett v. Visa U.S.A. Inc., 198 S.W.3d 747 (Tenn. Ct. App. 2006); Fucile v. Visa
U.S.A., Inc., 2004 WL 3030037 (Vt. Super. Ct., Dec. 27, 2004); Strang v. Visa U.S.A.,
Inc., 2005 WL 1403769 (Wis. Cir. Ct., Feb. 8, 2005).
3
of Columbia. 1 In two states, Florida and Nevada, consumers voluntarily
dismissed their complaints. 	In West Virginia, the state attorney general brought a
parens patriae action on behalf of the state’s consumers, and the attorney general
decided to settle the case after the district court denied Defendants’ motion for
summary judgment. See W. Virginia v. Visa U.S.A., Inc., Civil Action No. 30-C-551
(Memorandum Order Denying Defendants’ Motion for Summary Judgment, Oct. 14,
2005); Darrell V. McGraw, Jr., 2009 Annual Report: 	The West Virginia Attorney
General’s Report on the Activities of the Consumer Protection and Antitrust
Divisions, 62-63, http://www.wvago.gov/pdf/annualreports/2009_report.pdf.

4
{4} 	In New Mexico, Plaintiff filed a 186-paragraph complaint with essentially the
same allegations as claimed in the suits filed by the merchants in the federal action
and by other state consumers—that the anti-competitive behavior of Visa and
MasterCard regarding their debit card fee-processing system forced merchants to pass
on costs to consumers. 	Specifically, Plaintiff claims she bought retail goods from
“one or more [m]erchants located in New Mexico who were forced by Visa and/or
MasterCard to accept their customers’ Visa Check and/or MasterMoney debit cards
when those debit cards were presented by them for payment as a condition of being
able to accept Visa and/or MasterCard credit cards.” She also alleges that Visa and
MasterCard’s debit card transaction fees are significantly higher than the fees charged
by providers of debit services and that the alleged debit card scheme imposes a hidden
sales tax on every retail transaction affecting hundreds of thousands of consumers in
New Mexico, regardless of whether a credit or debit transaction took place during a
given purchase. 	Plaintiff also seeks class certification on behalf of “tens of
thousands” of New Mexico consumers who have made purchases of any number of
goods from merchants who accepted Visa and MasterCard’s credit and debit cards as
a form of payment.
{5} 	Six years into the proceedings, the district court granted Defendants’ motion to
dismiss. It ruled that Plaintiff did not have standing to bring a claim under either the

5
NMAA or the UPA and that Plaintiff failed to state a claim under the UPA. 	The
district court dismissed the common law claims of unjust enrichment and of money
had and received, finding that Defendants realized no benefit in the alleged scheme.
In this appeal, Plaintiff limits her challenge to the dismissal of her claims under the
NMAA. Specifically she argues that the district court erred (1) in determining that
Plaintiff’s injuries were too remote to provide standing to bring suit under the NMAA;
and (2) in failing to find that Plaintiff was within the target area of the actions of Visa
and MasterCard.
II. 	DISCUSSION
A. 	Standard of Review
{6} 	A motion to dismiss “is infrequently granted because its purpose is to test the
law of the claim, not the facts that support it.” Envtl. Improvement Div. v. Aguayo, 99
N.M. 497, 499, 660 P.2d 587, 589 (1983). In reviewing a district court’s decision to
dismiss for failure to state a claim, “we accept as true all well-pleaded factual
allegations in the complaint and resolve all doubts in favor of the complaint’s
sufficiency.” 	N.M. 	Pub. 	Schs. 	Ins. 	Auth. 	v. 	Arthur 	J. 	Gallagher 	& 	Co.,
2008-NMSC-067, ¶ 11, 145 N.M. 316, 198 P.3d 342. 	“A Rule [1-0]12([B])(6)
[NMRA] motion is only proper when it appears that plaintiff can neither recover nor
obtain relief under any state of facts provable under the claim.” Valdez v. State, 2002-

6
NMSC-028, ¶ 4, 132 N.M. 667, 54 P.3d 71 (internal quotation marks and citation
omitted). 	“A district court’s decision to dismiss a case for failure to state a claim
under Rule 1-012(B)(6) is reviewed de novo.” 	Valdez, 2002-NMSC-028, ¶ 4.
“Whether a party has standing to litigate a particular issue is a question of law, which
we review de novo.” City of Sunland Park v. Santa Teresa Servs. Co., 2003-NMCA-
106, ¶ 39, 134 N.M. 243, 75 P.3d 843.
B. 	Plaintiff Lacks Standing to Bring a Claim Under the NMAA
{7} 	We turn first to Plaintiff’s assertion of error in the district court’s dismissal of
the action for lack of standing. “Dismissals under Rule 1-012(B)(6) are proper when
the claim asserted is legally deficient.” Delfino v. Griffo, 2011-NMSC-015, ¶ 9, 150
N.M. 97, 257 P.3d 917. A plaintiff’s standing is a “jurisdictional prerequisite to an
action.” ACLU of N.M. v. City of Albuquerque, 2008-NMSC-045, ¶ 9 n.1, 144 N.M.
471, 188 P.3d 1222 (internal quotation marks and citation omitted).
{8} 	To evaluate whether Plaintiff has standing sufficient to assert a claim here, we
look at the text of the NMAA. Antitrust legislation barring monopolistic restraint of
trade began with the federal Sherman Antitrust Act (Sherman Act), enacted by
Congress in 1890. See 15 U.S.C. §§ 1 through 7 (2004). One year later, in 1891, the
New Mexico Territorial Legislature enacted the NMAA that is based on the Sherman
Act. See §§ 57-1-1 through -19. In 1914, Congress enacted a follow-up statute, the

7
Clayton Act, to bolster the original act’s enforcement mechanisms. 	See 15 U.S.C.
§ 15(a). The NMAA contains a similar provision and allows recovery to “any person
threatened with injury or injured in his business or property” by a violation of the
NMAA. Section 57-1-3.
{9} 	Our 	determination 	regarding 	standing 	involves 	a 	question 	of 	statutory
interpretation that in turn involves an understanding of the interplay between federal
and state antitrust law. 	The NMAA “shall be construed in harmony with judicial
interpretations of the federal antitrust laws. 	This construction shall be made to
achieve uniform application of the state and federal laws prohibiting restraints of trade
and monopolistic practices.” 	Section 57-1-15. 	According to our Supreme Court,
“[t]he underlying purposes behind both the federal and state [l]aws are the same, to
establish a public policy of first magnitude; that is, promoting the national interest in
a competitive economy.” 	United Nuclear Corp. v. Gen. Atomic Co., 93 N.M. 105,
125, 597 P.2d 290, 310 (1979) (internal quotation marks and citation omitted).
Recently, the Court reaffirmed that the state and federal antitrust statutes should be
read in harmony: “It is therefore the duty of the courts to ensure that New Mexico
antitrust law does not deviate substantially from federal interpretations of antitrust
law.” Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 18, 148 N.M. 713, 242 P.3d
280. 	New Mexico courts therefore look to federal antitrust law to determine the

8
meaning of provisions of the NMAA. See State v. Ray Bell Oil Co., 101 N.M. 368,
370, 683 P.2d 50, 52 (Ct. App. 1983).
{10} 	With this as a background, we now turn to Plaintiff’s challenge to the district
court’s finding that she lacked standing under the NMAA. New Mexico has adopted
a three-part test to address standing in general: 	“To acquire standing to litigate a
particular issue, a party must demonstrate (1) an injury in fact, (2) a causal
relationship between the injury and the challenged conduct, and (3) a likelihood that
the injury will be redressed by a favorable decision.” 	City of Sunland Park, 2003-
NMCA-106, ¶ 40 (internal quotation marks and citations omitted). Plaintiff here asks
us to break the standing question into several parts—the above three-step analysis as
well as a discussion of whether consumers were in the “target area” of Defendants’
actions or whether the harm to Plaintiff that flowed from Defendants’ actions was
“foreseeable” enough to create standing in Plaintiff. We decline Plaintiff’s invitation
because her suggested tangents are subsumed into the basic analysis of standing.
“Even where a party demonstrates these three elements, standing may be denied if the
interest the complainant seeks to protect is not within the ‘zone of interests’ protected
or regulated by the statute or constitutional provision the party is relying upon. The
concepts of injury and zone of interest are thus intertwined.” 	Id. 	In support of her
position, Plaintiff cites Key v. Chrysler Motors Corp., 1996-NMSC-038, 121 N.M.

9
764, 768, 918 P.2d 350, 354, for the proposition that a claimant must show “that the
interest sought to be protected by the complainant is arguably within the zone of
interests to be protected or regulated by the statute[,]” and she contends that she meets
this test. Id. (internal quotation marks and citation omitted). We first observe that this
is not an antitrust case. And while we agree that the cited statement is contained in
Key, there is more. Key goes on to state that in order to assess a plaintiff’s standing
“we must look to the Legislature’s intent as expressed in the [applicable] Act or other
relevant authority.” Id. Here, the Legislature has clearly spoken, requiring that the
NMAA be interpreted in harmony with federal law.
{11} 	Plaintiff also argues that she should have standing because the economic effect
on her and other consumers was foreseeable. 	This argument has been considered
elsewhere and, like those other courts, we decline to adopt such a standard for antitrust
cases. 	See Reibert v. Atlantic Richfield Co., 471 F.2d 727, 731 (10th Cir. 1973)
(“Antitrust violations admittedly create foreseeable ripples of injury to individual
stockholders, consumers[,] and employees, but the law has not allowed all of these
standing to sue for treble damages.”); Southard, 734 N.W.2d at 197 (stating in a
parallel case against Visa and MasterCard that “[t]he remoteness doctrine is not based
upon a factual inquiry to determine whether the damages claimed were foreseeable or
whether they were a proximate cause; rather, it is a legal doctrine incorporating public

10
policy considerations” (internal quotation marks and citation omitted)); Fucile, 2004
WL 3030037, at *4 (stating in a parallel case against Visa and MasterCard that “[t]he
defendants could not be expected to foresee an antitrust violation affecting merchants
to result in increased cost of goods throughout the entire consumer base and to so
injure that consumer base as to result in liability to every consumer in the country”).
Instead, we follow the direction of the NMAA itself, rely on the general guidance
regarding standing found in Key, and conduct a standing analysis for the NMAA that
is in harmony with federal court interpretations of antitrust jurisprudence. See City
of Sunland Park, 2003-NMCA-106, ¶ 41 (“Cases in New Mexico are clear that
injury—whether actual or threatened—is not enough by itself to confer standing. To
be accorded standing on a particular issue the party must show that the statute or
constitutional provision relied on reaches or provides protection against the injury.”).
{12} 	Having rejected the alternative approaches put forth by Plaintiff, we proceed
to evaluate whether Plaintiff has standing based on the provisions of the NMAA and
on federal antitrust jurisprudence. 	Both parties agree that the relevant precedent
guiding a standing analysis in federal antitrust litigation is Associated General
Contractors v. California State Council of Carpenters (AGC), 459 U.S. 519 (1983).
There, the United States Supreme Court suggested that the loose concepts of “zone of
interest” and “foreseeability” are not adequate to confer standing.

11
An antitrust violation may be expected to cause ripples of harm to
flow through the [n]ation’s economy; but despite the broad wording of
[15 U.S.C.] § 4 there is a point beyond which the wrongdoer should not
be held liable. It is reasonable to assume that Congress did not intend to
allow every person tangentially affected by an antitrust violation to
maintain an action to recover threefold damages for the injury to his
business or property.
It is plain, therefore, that the question whether the [plaintiff] may
recover for the injury it allegedly suffered by reason of the defendants’
coercion against certain third parties cannot be answered simply by
reference to the broad language of [15 U.S.C.] § 4.
Id. at 534-35 (internal quotation marks and citations omitted).
{13} 	In AGC, the Court was concerned with “keeping the scope of complex antitrust
trials within judicially manageable limits.” Id. at 543. In this regard, the AGC Court
set out five factors to consider in analyzing the issue of standing: 	(1) whether the
plaintiffs were participants in the allegedly restrained market; (2) the directness of the
plaintiff’s alleged harm; (3) whether there is a better potential plaintiff; (4) whether
the 	plaintiff’s 	theory 	of 	damages 	is 	speculative; 	and 	(5) 	the 	complexity 	of
apportioning damages and the risk of duplicative liability. 	Id. at 538-45. We now
turn to each of the factors and evaluate them based on Plaintiff’s allegations.
1. 	Market Participation
{14} 	The market at issue is the debit processing service of Visa and MasterCard that
involves Defendants, their member banks, and the merchants who honor their cards.
Plaintiff is neither a consumer nor a competitor in the market allegedly being

12
restrained by Defendants and does not appear in that chain of distribution; thus, she
cannot be identified as a consumer of the service provided by Visa and MasterCard.
Plaintiff, instead, is a consumer of goods sold by merchants who happen to be part of
the affected market. Other jurisdictions agree. See, e.g., Kanne, 723 N.W.2d at 298
(concluding that the consumer-plaintiffs were “not competitors in the allegedly
affected market, which is the business of providing debit network processing services
to merchants . . . [n]or . . . consumers of those services”); Southard, 734 N.W.2d at
199 (characterizing consumer plaintiffs as “neither consumers of the defendants’
products nor competitors of the defendants”).
2. 	Directness of Harm
{15} 	Here, Plaintiff alleges that Defendants’ tying arrangements led to “exorbitant
fees . . . passed on to . . . Plaintiff and [c]lass members in the form of artificially
higher and advanced prices.” Plaintiff’s allegations do not show that she was directly
harmed by the actions of Visa and MasterCard; nor do they show that she was
indirectly harmed through the chain of distribution of the debit card services. The
alleged harm caused by Defendants’ tying scheme takes an abrupt left turn after
reaching the merchants and branches off into supposed higher prices for all goods
throughout New Mexico, mutating into a different form of harm to consumers.
Plaintiff’s injury is better characterized as remote or derivative. See Southard, 734

13
N.W.2d at 199 (“Clearly, the injuries alleged by the plaintiffs are not even indirect,
as the plaintiffs are not in the chain of distribution. Their injuries are better described
as derivative.”); Ho, 793 N.Y.S.2d at 9 (“Those injuries are too remote and derivative
to countenance such a cause of action.”).
3. 	A Better Plaintiff
{16} 	In the case before us, Plaintiff is a consumer who is not directly affected by the
alleged tying arrangement. The better plaintiffs to challenge Defendants’ business
practices have already come forward. 	They are the merchants themselves, led by
Walmart, who first brought suit in 1996 and who settled with Visa and MasterCard
in 2003, setting up a $3.1 billion fund to make whole the merchants affected by debit
card transaction fees. 	Preventing Plaintiff here from bringing a claim under the
NMAA will not “leave a significant antitrust violation undetected or unremedied.”
AGC, 459 U.S. at 542; see Ho, 793 N.Y.S.2d at 9 (finding that Visa and MasterCard
“have been subjected to judicial remediation for their wrongs, and any recovery here
would be duplicative”).
4. 	Speculative Damages
{17} 	We now evaluate the nature of Plaintiff’s alleged damages. Plaintiff asserts that
her damages are based on the overcharges she paid on every retail item she bought
from every merchant in New Mexico that accepted Visa and MasterCard credit and

14
debit cards over the course of several years. By way of example, Plaintiff would ask
a court to find that paying, say, $1.99 for a dozen eggs rather than $1.89 during a
random shopping trip to a particular grocer was the indirect result of the excessive
debit card transaction fees paid by the grocer to the member banks of Visa and
MasterCard. Plaintiff would be alleging that for this particular purchase, and for the
millions of small purchases made by “tens of thousands” of New Mexicans at dozens
or perhaps hundreds of retail outfits throughout the state, the merchant chose not to
absorb the debit card transaction fee but rather passed that cost on to the consumer.
Such a calculation would ignore the countless considerations that go into the set price
of any given product at any given store on any given day. See Kanne, 723 N.W.2d at
299 (stating that “the claimed price increases over a period of years could have
resulted from myriad independent reasons unrelated to the alleged violation” (internal
quotation marks and citation omitted)). Because the alleged damages could have been
produced by numerous independent factors, Plaintiff’s damage claim is speculative.
5. 	Complexity of Apportioning Damages; Risk of Duplicative Liability
{18} 	The United States Supreme Court has emphasized “the importance of avoiding
either the risk of duplicate recoveries on the one hand, or the danger of complex
apportionment of damages on the other.” AGC, 459 U.S. at 543-44. The Court feared
that such damage calculations “would often require additional long and complicated

15
proceedings involving massive evidence and complicated theories.” 	Id. at 544
(internal quotation marks and citation omitted). As the Maine Superior Court stated
in a parallel case against Defendants,
[t]o determine what portion of any overcharge was passed on by any
given merchant, with respect to which products, and to which consumers
is a task of monumental uncertainty and complexity. Depending on their
other costs, their competitive position in the market, their profit margins,
and the specific products they sold, some merchants could have absorbed
a substantial portion of any overcharge instead of passing it on.
Knowles, 2004 WL 2475284, at *6. “For any given consumer, the issue is even more
complicated and speculative because the inquiry would involve what items that
particular consumer purchased, what that consumer paid for each item, and what
percentage of overcharge, if any, was contained in that price.” 	Id.; see Kellen S.
Dwyer, With the Illinois Brick Wall Down, What’s Left? 	Determining Antitrust
Standing Under State Law, 3 J. Bus. Entrepreneurship & the Law 255, 279 (2010)
(hereinafter Dwyer) (“Showing the pass-on would require an estimation of the
elasticity of demand for almost every product sold in the state. Even if that feat were
possible, it is hard to imagine how the funds could be apportioned.”). In addition, the
risk of duplicative liability is apparent. Defendants settled with merchants nine years
ago for more than $3 billion and thus were made to pay for the alleged antitrust
violations. Under Plaintiff’s theory of the case, merchants who benefitted from the
settlement could conceivably have turned around and lowered the prices of their

16
goods, thus providing consumers with relief from any previously passed-along costs
emanating from the debit card transaction fees. Apportioning damages would be a
complex task, and there is a risk of duplicative damages.
{19} 	The AGC factors do not fall in Plaintiff’s favor. Taking the factors in sum, we
conclude that Plaintiff’s claim fails the test and fails to prove she has standing to bring
a claim under the NMAA.
{20} 	As an alternative, Plaintiff argues that AGC should not apply to her claim at all
because the facts of AGC can be distinguished from the facts of her case. Plaintiff
points out that she is a consumer facing overcharges, whereas the plaintiff labor union
in AGC was not a consumer and was not subject to overcharges. However, the Court
in AGC made it clear that its five-factor analysis applied to the broad spectrum of
antitrust claims, including those involving consumers. See 459 U.S. at 538 (stating
that “the Sherman Act was enacted to assure customers the benefits of price
competition, and our prior cases have emphasized the central interest in protecting the
economic freedom of participants in the relevant market”). And the author of AGC,
Justice Stevens, more recently reiterated the broad application of that five-factor
analysis. 	See Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, 540 U.S.
398, 416 (2004) (Stevens, Souter & Thomas, JJ., concurring) (applying the AGC
factors and reasoning that “we have eschewed a literal reading of [15 U.S.C.] § 4,

17
particularly in cases in which there is only an indirect relationship between the
defendant’s alleged misconduct and the plaintiff’s asserted injury”); see also Hawaii
v. Standard Oil Co., 405 U.S. 251, 264 n.14 (1972) (“The lower courts have been
virtually unanimous in concluding that Congress did not intend the antitrust laws to
provide a remedy in damages for all injuries that might conceivably be traced to an
antitrust violation.”). We conclude that AGC is applicable to the case before us even
though its facts are distinguishable.
{21} 	Plaintiff further argues, though, that the NMAA offers a broader basis for
consumers to bring an antitrust action and that it diverges from federal law by
allowing suits to be brought by those “indirectly” harmed by monopolistic behavior.
Section 57-1-3. The NMAA was modified in 1979 to counteract the U.S. Supreme
Court’s decision in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), which had
barred antitrust suits by “indirect” purchasers in a distribution scheme. New Mexico,
as did other states, responded by clarifying its statute to allow suits by those claiming
to have been harmed indirectly. 	Plaintiff thus suggests that the revised NMAA
deserves an expansive reading that finds a broad legislative intent to protect
consumers.
{22} 	First, as stated above, we reject Plaintiff’s claim that she is an indirect purchaser
in the distribution scheme at hand; rather, her claim is distinct from and derivative of

18
a distribution network for debit card services that involves Defendants, their member
banks, and merchants. 	Further, Plaintiff misreads the Supreme Court’s opinion in
Illinois Brick and conflates its statutory analysis with an analysis of standing. The
Illinois Brick Court was focused not on standing but rather on a straight interpretation
of the statute amid the Court’s concerns about allowing multiple treble damages
liability throughout a given chain of distribution of goods. Id. at 736-37. The Court
was careful to distinguish between the issue presented—the question of whether the
federal antitrust act allows an indirect purchaser to bring suit—and the broader issue
of standing: 	“[W]e do not address the standing issue, except to note . . . that the
question of which persons have been injured by an illegal overcharge . . . is
analytically distinct from the question of which persons have sustained injuries too
remote to give them standing to sue for damages under [15 U.S.C.] § 4.” 	Illinois
Brick, 431 U.S. at 728 n.7 (emphasis added). Even the Illinois Brick dissent by Justice
Brennan acknowledged that “there is a point beyond which the wrongdoer should not
be held liable.” 	Id. at 760 (Brennan, Marshall, & Blackmun, JJ., dissenting). The
dissent continued: 	“Courts have therefore developed various tests of antitrust
‘standing’ . . . to define that point.” 	Id. 	The full Court, in a subsequent case,
reiterated that standing requirements and questions of “which persons have sustained
injuries that are too remote” remain “[a]nalytically distinct” from Illinois Brick’s bar

19
against indirect purchasers. 	Blue Shield v. McCready, 457 U.S. 465, 476 (1982)
(emphasis, internal quotation marks, and citation omitted). Thus, “[b]ecause Illinois
Brick did not alter the Court’s antitrust standing jurisprudence, Illinois Brick’s repeal
should imply nothing about standing.” Dwyer, supra, at 263 (emphasis added).
{23} 	Plaintiff can point to only one other jurisdiction that has ruled in favor of
consumers in a similar case against Defendants: W. Virginia, Civil Action No. 30-C-
551. This is an unpublished decision in which the court prefaces its discussion by
stating that it was not conducting a full analysis of the issue of standing. Id. Further,
the West Virginia district court’s discussion of Illinois Brick repealer statutes suffers
from lack of nuance and falls short of a full assessment of standing in such cases.
Thus, it stands alone as an unreliable outlier against every other jurisdiction that has
denied standing to similarly situated plaintiffs bringing derivative actions against Visa
and MasterCard. 	See, e.g., Kanne, 723 N.W.2d at 299-300; Knowles, 2004 WL
2475284 at *3; Stark, 2004 WL 1879003 at *3-4. The Minnesota Supreme Court, in
a follow-up case to its consumer suits against Defendants, observed that “Illinois Brick
addressed the scope of antitrust injury, not standing, under the Clayton Act.” Lorix
v. Crompton Corp., 736 N.W.2d 619, 629 (Minn. 2007). 	The court concluded:
“Whatever the precise prudential limits on Minnesota antitrust standing, we do not
believe that the legislature intended to create ‘consumer standing’ by allowing every

20
person in the state to sue for an antitrust violation simply by virtue of his or her status
as a consumer.” 	Id. at 632. We similarly conclude that Plaintiff lacks standing to
bring a claim against Visa and MasterCard under the NMAA for the alleged tying
scheme that forced merchants to accept Defendants’ debit cards at inflated transaction-
fee rates.
III. 	CONCLUSION
{24} 	For the foregoing reasons, we affirm the decision of the district court.
{25} 	IT IS SO ORDERED.
__________________________________
CELIA FOY CASTILLO, Chief Judge
WE CONCUR:
__________________________________
CYNTHIA A. FRY, Judge
__________________________________
RODERICK T. KENNEDY, Judge