76 F. Supp. 3d 1261
D.N.M.2014Background
- Defendants move to dismiss Count V of the Amended Complaint under NMUPA standing and pleading standards.
- Plaintiffs allege past and ongoing NMUPA violations by Defendants in the sale of investment services to consumers.
- Plaintiffs are competitor businesses (FSFA) alleging confusion with the Defendants’ investment services (SFA) and misrepresentations to consumers.
- NMUPA provides standing to “a person likely to be damaged” and to those suffering loss of money or property from unlawful practices.
- Court applies liberal remedial construction of NMUPA, addresses whether a competitor may sue a seller of goods or services for deceptive practices harming consumers and the competitor.
- Court denies Defendants’ Motion to Dismiss Count V, finding plausible NMUPA violations under the allegations and applicable law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does NMUPA allow competitor-standing against a competitor-defendant? | Competitor standing exists under NMUPA. | SFCS & D forecloses competitor standing. | Yes; competitor standing plausible under NMUPA. |
| Do plaintiffs plausibly allege NMUPA violations in this context (in connection with the sale of goods or services)? | Misrepresentations and confusion affect consumers and harm FSFA. | SFCS & D and related cases foreclose such standing. | Plaintiffs plausibly allege violations. |
| Is the NMUPA interpreted with plain meaning or public policy considerations? | Plain meaning supports competitor standing. | Policy should constrain expansion of NMUPA. | Plain meaning governs; no public policy departure shown. |
Key Cases Cited
- Santa Fe Custom Shutters & Doors, Inc. v. Home Depot, 137 N.M. 524 (Ct.App. 2005) (limits standing to buyers of goods (context does not address competitors))
- Page & Wirtz v. Solomon, 110 N.M. 206 (1990) (dicta suggesting NMUPA competitor standing under certain circumstances)
- Maese v. Garrett, 329 P.3d 713 (N.M. Ct. App. 2014) (financial advising is a NMUPA-covered service)
- Navajo Nation v. Urban Outfitters, Inc., 935 F. Supp. 2d 1147 (D. N.M. 2013) (considering SFCS&D and competing standing analyses; informs remedial interpretation)
- In re Grace, 335 P.3d 746 (N.M. 2014) (remedial statute to be liberally construed; plain meaning approach favored)