Fucile v. VISA USA Inc., No. S1560-03 Cnc (Norton, J., Dec. 27, 2004) 

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the 

original. The accuracy of the text and the accompanying data included in the Vermont trial court 

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STATE OF VERMONT SUPERIOR COURT 

Chittenden County, ss.: Docket No. S1560-03 CnC 

ANTHONY J. FUCILE 

 

v. 

VISA U.S.A. INC. and MASTERCARD 

INTERNATIONAL, INC. 

ENTRY 

 The plaintiff, Anthony J. Fucile, sues Visa and Mastercard on behalf of himself 

and all similarly situated individuals for damages incurred by purchasing products sold 

by merchants who used the defendants’ debit card services. Mr. Fucile claims that 

because of the defendants’ antitrust violations, merchants were forced to pay higher costs 

for the use of debit cards. The merchants, in turn, passed these costs along to consumers 

through the price of the goods they sold. Mr. Fucile brings this action under the Vermont 

Consumer Fraud Act. The defendants move to dismiss for failure to state a claim upon 

which relief can be granted, pursuant to Rule 12(b)(6) of the Vermont Rules of Civil 

Procedure. Because Mr. Fucile lacks standing under the Consumer Fraud Act, the court 

dismisses his complaint. 

 This action stems from a class action in the U.S. District Court for the Eastern 

District of New York. In that action, a class of retailers sued Visa and Mastercard for 

antitrust violations, claiming that the two defendants illegally required retailers to accept 

debit card services along with credit card services. The parties settled before trial, 

resulting in more than $3 billion in damages and injunctive relief worth between $25 
billion to $87 billion. See generally In re Visa Check/Mastermoney Antitrust Litig., 297 

F. Supp. 2d 503 (E.D.N.Y. 2003). 

 Mr. Fucile now seeks damages as a consumer from merchants affected by the 

antitrust violations at issue in the prior class action litigation, claiming that these 

violations constituted an unfair method of competition within the meaning of 9 V.S.A. § 

2453(a). Mr. Fucile claims standing to bring this claim not as a purchaser, because he did 

not actually purchase the financial services from the defendants, but as an “indirect 

purchaser.” 

 The defendants, however, argue that Mr. Fucile is neither a direct purchaser nor an 

indirect purchaser. Rather, he is a “non-purchaser,” because he did not actually receive 

the financial services that were affected by the defendants’ antitrust violation. Mr. Fucile 

merely complains about prices of goods that may or may not have been affected by the 

price of the defendants’ financial services. Therefore, the defendants argue, he lacks 

standing. 

 A motion to dismiss for failure to state a claim upon which relief can be granted 

will issue only if it is beyond doubt that there exists no facts or circumstances that entitle 

a plaintiff to relief. Powers v. Office of Child Support, 173 Vt. 390, 395 (2002). In a 

motion to dismiss, the court assumes all facts that a plaintiff pleads are true and 

disregards all of a defendant’s contrary assertions. Id. Here, the dispositive issue is 

whether a person in Mr. Fucile’s position, having not actually acquired the product or 

service that is alleged to be tainted by unlawful trade, can seek damages under the 

Consumer Fraud Act. Because this standing issue is one of law, it is appropriate for 

disposition on a motion to dismiss for failure to state a claim upon which relief can be 

granted. See, e.g., Parker v. Town of Milton, 169 Vt. 74, 76–79 (1998). 

 The Consumer Fraud Act, literally read, provides limitless standing to any 

consumer. See 9 V.S.A. § 2451a(a) (defining consumer as “any person who purchases, 

leases, contracts for, or otherwise agrees to pay consideration for goods or services”). 

Courts will not, however, interpret statutes in a manner that leads to “absurd results 

manifestly unintended by the Legislature.” In re G.T., 170 Vt. 507, 517 (2000). Although 

courts should interpret the Consumer Fraud Act liberally in order to serve its remedial 

purpose, courts should not “so freely stretch its meaning as to evade the Legislature's 
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intent.” Wilder v. Aetna Life & Cas. Ins. Co., 140 Vt. 16, 19 (1981). Thus, the court must 

define some limits to who may have standing to sue under the Consumer Fraud Act. 

 Although federal courts have limited antitrust actions to “direct purchasers” of 

goods or services, see Illinois Brick Co. v. Illinois, 431 U.S. 720, 746 (1977), Vermont 

has expressly disagreed with this limitation and allowed indirect purchaser suits under 

state law. See 9 V.S.A. § 2465(b); Elkins v. Microsoft Corp., 174 Vt. 328, 337–38. 

(2002). But the standing issue in the instant case is a separate matter from the indirect 

purchaser issue. Indeed, the Illinois Brick Court did not address standing, stating that the 

indirect purchaser issue “is analytically distinct from the question of which persons have 

sustained injuries too remote to give them standing to sue for damages.” Illinois Brick, 

431 U.S. at 728 n.7. Despite his claim that he qualifies as an “indirect purchaser,” Mr. 

Fucile is far more remote than the plaintiff in Elkins. In Elkins, the plaintiff had actually 

acquired the product that was allegedly tainted by unfair methods of competition. See 

Elkins, 174 Vt. at 333. Here, Mr. Fucile never actually purchased the tainted financial 

services, but merely claims damages through the purchase of other products, the price of 

which may or may not have been affected by the financial services. Therefore, despite 

Vermont’s indirect purchaser rule, the court must still determine if Mr. Fucile has 

standing given his remote relationship to the alleged wrongdoing. 

 Federal courts have generally split into two camps with respect to antitrust 

standing. Some courts have opted for the “direct injury” test, which focuses on the 

relationship between the parties. Under this test, if the plaintiff is separated by 

intermediate victims, courts usually deny standing. See Annotation, “Target Area” 

Doctrine as Basis For Determining Standing to Sue Under § 4 of Clayton Act (15 

U.S.C.A. § 15) Allowing Treble Damages For Violation of Antitrust Laws, 70 A.L.R. 

Fed. 637, §2[a]. Other courts have used the “target area” test, which focuses on the 

general area of the economy injured by the antitrust violator. See id. 

 The Supreme Court has not endorsed either test, but it has provided factors that 

lower courts should consider in determining standing. Associated Gen. Contractors v. 

Calif. State Council of Carpenters, 459 U.S. 519, 537 n.33 (1983). These factors include 

(1) whether there is a causal connection between the antitrust violation and the alleged 

harm, id. at 537; (2) the directness of the injury, considering the “chain of causation,” id. 

at 540; (3) whether the violator had an improper motive, id. at 537 and n.35; (4) whether 

the plaintiff’s injury was of a type that Congress sought to redress by providing a private 
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remedy, id. at 538; (5) whether the alleged damages are speculative, id. at 542; and (6) 

whether the nature of the action will keep “the scope of complex antitrust trials within 

judicially manageable limits,” id. at 543. 

 Simply by glancing at these factors, one can see that the Court did not pull them 

from thin air. Rather, they reflect the Court’s standing factors to determine whether a case 

or controversy exists, pursuant to Article III of the Constitution.1 The three primary 

factors in this context are (1) injury, (2) causation, and (3) redressibility. See Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). The Vermont Supreme Court has 

expressly adopted these factors in other contexts. See, e.g., Agency of Natural Resources 

v. U.S. Fire Ins. Co., 173 Vt. 302, 306 (2001). Although the Vermont Consumer Fraud 

Act has broader remedial purposes than federal statutes, the court nevertheless believes 

that the Vermont Supreme Court would also draw upon the standing factors in Associated 

General Contractors for guidance, at least to the extent that these factors are consistent 

with allowing “indirect purchaser” standing. 

 Therefore, in applying the general factors of Associated General Contractors, the 

court holds that Mr. Fucile does not have standing in this case. First, the causal chain here 

is simply too long. Mr. Fucile’s damages are through an alleged inflated cost of goods 

sold by merchants who were injured by the defendants’ inflated cost of financial services. 

He would have to demonstrate that the merchants actually passed their costs along to 

consumers through the price of their goods, rather than absorbing them by other means. 

The court would need to consider all other potential causes of inflated costs, such as any 

number of supply problems that affected the price of each different product the plaintiff 

class bought in Vermont during the relevant time period. This exercise in speculation 

extends far beyond a court’s abilities. Although causation may be indirect, given the 

indirect purchaser rule in Vermont, it cannot extend beyond a reasonable length, as it 

does here. Thus, factors (1) and (2) weigh against standing. 

 Second, the defendants’ intent in this case weighs in favor of standing. Although 

the complaint is unclear as to the defendants’ intent to violate antitrust law, the extent of 

money that the defendants allegedly made because of their tying arrangement 

 

1

The Court has noted that antitrust standing is somewhat different from constitutional 

standing because it requires additional considerations, but both share the same basic 

requirements. See Associated Gen. Contractors, 459 U.S. at 535 n.31. 
5

demonstrates that their actions were intentional. Moreover, the defendants are 

associations providing financial services to thousands of banks. One cannot imagine that 

they lack familiarity with antitrust laws in conducting their business, so inferring intent 

here is appropriate. Therefore, factor (3) weighs in favor of standing for Mr. Fucile. 

 Third, the injury here does not appear to be a type that the Legislature intended to 

redress through the Consumer Fraud Act. Although, as the Vermont Supreme Court has 

stated many times, courts should construe the Act liberally to effectuate its remedial 

purpose, the court cannot imagine that the Legislature intended the Act to redress injuries 

to all consumers, even those whose contact to the goods or services tainted by unfair 

competition is remote and tangential. One could divine any number of hypothetical 

scenarios analogous to this case that highlight the absurdity of allowing standing under 

these circumstances. 

 For instance, assume the plaintiff in Elkins was not a computer purchaser, but a 

client whose attorney provided legal services using Microsoft software. The client could 

claim that her bill was slightly higher because the attorney was forced to pay a higher 

price for the software because of Microsoft’s antitrust violations. Whether or not the 

client’s alleged injury is accurate, the court cannot reasonably assume that the Legislature 

intended the Consumer Fraud Act to extend limitlessly. As Justice Brennan 

acknowledged in his Illinois Brick dissent, “[t]here is, of course, a point beyond which 

antitrust defendants should not be held responsible for the remote consequences of their 

actions.” 431 U.S. at 749 n.2. The plaintiff here extends far beyond this point. Thus, 

factor (4) weighs against standing. 

 Finally, the alleged damages are highly speculative. Assuming that the merchants 

actually passed along added expenses in the price of goods sold, the court would need to 

determine the degree to which these expenses were passed along. This degree may vary 

from one good to another. For instance, merchants may pass on greater costs in product 

markets that are relatively inelastic and fewer costs in product markets that are relatively 

elastic. See Illinois Brick, 431 U.S. at 750 n.3 (Brennan, J., dissenting). The court would 

then have to determine actual sales of goods to the plaintiff class during the relevant time 

period. Consumer fraud cases typically venture into the field of approximation, see id. at 

758–59 (Brennan, J., dissenting), but these alleged damages venture into uncharted 

territories of sheer guesswork. Factors (5) and (6) therefore weigh against standing. 
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 Tallying the above analysis, the court grants the defendants’ motion to dismiss. 

The court also notes that even should the Vermont Supreme Court ultimately adopt a 

different standard than that in Associated General Contractors, such as the “target area” 

test as it existed prior to Associated General Contractors, this court would still dismiss. In 

its most liberal manifestation, the target area test considered not only whether an antitrust 

violator’s actions were aimed at a particular sector of the market, but whether the violator 

could have foreseen that its actions would affect the sector. See, e.g., Mulvey v. Samuel 

Goldwyn Prod., 433 F.2d 1073, 1076 (9th Cir. 1970); see also Illinois Brick, 431 U.S. at 

760 and n.18 (Brennan, J., dissenting) (discussing “more liberal” target area test). Even 

under this test, Mr. Fucile lacks standing. The 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. General consumers were not the target area of 

the defendants’ actions; merchants were. Therefore, the court would grant the defendants’ 

motion using this test, as well. 

 Finally, the court briefly addresses Mr. Fucile’s request that the court permit an 

amended answer to allow a narrower class, defined as those consumers who used debit 

cards in their transactions. The court denies this request, as it would not result in a 

different ruling. Mr. Fucile lacks standing because his injury—as a general consumer of 

products that are not directly related to the defendants’ financial services—is too remote. 

Whether he used a debit card, a credit card, a check, or cash is irrelevant. His injury 

would still be that of a general consumer, and he would lack standing. 

ORDER 

 For the foregoing reasons, the defendant’s motion to dismiss is GRANTED. 

 Dated at Burlington, Vermont, Dec. 27, 2004. 

____________/s/____________ 

Judge