383 F. Supp. 3d 307
D. Vt.2019Background
- Plaintiff (Vermont-based) alleges defendant sent false copyright-infringement notices and invoices to plaintiff's customers, seeking $8,000 per alleged use.
- Defendant sent notices/invoices to out-of-state grocery stores rather than directly to plaintiff and claims no direct knowledge of plaintiff's role.
- Plaintiff asserts it was harmed in Vermont by those notices and invoices and brings a claim under the Vermont Consumer Protection Act (VCPA).
- Defendant moved for partial judgment on the pleadings seeking dismissal on grounds including lack of privity, lack of a Vermont nexus, absence of deceptive acts, and that the conduct was not "in commerce."
- The court evaluated whether the VCPA requires privity, whether alleged out-of-state communications can give rise to a Vermont nexus, whether factual disputes preclude dismissal on deceptive-acts grounds, and whether the alleged scheme falls "in commerce."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Privity (consumer status) | VCPA protects "any consumer" harmed by deceptive practices; privity not required | Privity of contract with defendant is necessary for consumer status | Court: Privity not required; recipient of false invoices may sue the sender under the VCPA (following Elkins) |
| Vermont nexus | Plaintiff located in Vermont; harm in Vermont from out-of-state conduct suffices | Notices sent out-of-state to stores; defendant lacked knowledge of plaintiff's role | Court: Allegations that out-of-state acts damaged a Vermont plaintiff plausibly establish a Vermont nexus; dismissal denied |
| Deceptive acts (falsity/materiality) | Falsity and materiality are factual questions; pleadings allege a deceptive scheme | Defendant points to disclaimer and sophistication of recipients; contends no deception | Court: Factual disputes (e.g., invoices' basis, recipients' sophistication) preclude dismissal; not resolved on pleadings |
| "In commerce" requirement | Defendant's pattern (tracking images, sending invoices to many companies) targets consumers and is in commerce | Characterizes contacts as private "one-off" disputes outside the consumer marketplace | Court: Pleadings plausibly allege a scheme affecting the consumer marketplace; conduct alleged is "in commerce" under VCPA |
Key Cases Cited
- Elkins v. Microsoft Corp., 174 Vt. 328, 817 A.2d 9 (Vt. 2002) (VCPA does not require privity; permits suits by any consumer against violators)
- Poulin v. 513 A.2d 1168 (Vt.) (manufacturer liable under VCPA despite lack of privity)
- Carter v. 716 A.2d 17 (Vt.) (agent treated as seller under VCPA though not the actual seller)
- Foti Fuels, Inc. v. Kurrle Corp., 195 Vt. 524, 90 A.3d 885 (Vt. 2013) ("in commerce" limits VCPA to practices in the consumer marketplace)
Conclusion: The court denied defendant's motion for partial judgment on the pleadings, finding the VCPA claims plausible given the alleged facts and unresolved factual disputes.