MEMORANDUM OPINION AND ORDER
Plаintiffs, putative representatives of a nationwide class, have sued defendants Federal National Mortgage Home Loan Association (“Fannie Mae”) and Federal National Home Loan Mortgage Corporation (“Freddie Mac”), alleging federal antitrust violations and violations of selected state antitrust and consumer protection laws. Defendants have moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss all claims asserted in plaintiffs’ consolidated class action complaint for failure to state a claim upon which relief may be granted. Plaintiffs have opposed the motion. Because plaintiffs have failed to state a claim upon which relief may be granted except as to federal treble damage claims and certain groups of plaintiffs arising under certain state laws, the motion to dismiss will be granted in part and denied in part. Specifically, the motion will be denied as to plaintiffs’ damages claims arising under (1) § 4 of the Clayton Act, 15 U.S.C. § 15, because plaintiffs have pled sufficient facts to establish antitrust standing; (2) Arizona’s Antitrust Act, Ariz. Rev.Stat. § 44-1401
et seq.,
because plaintiffs have pled sufficient facts to establish a cognizable antitrust claim; (3) Minnesota’s Antitrust Act, MinmStat. § 325D.52
et seq.,
because plaintiffs have pled sufficient facts to establish a cognizable antitrust claim; (4) Florida’s Deceptive and Unfair Trade Practices Act, Fla. Stat. Ann. § 501.201
et seq.,
because plaintiffs have sufficiently alleged that they suffered a loss as a result of a violation of the statute; (5) West Virginia’s antitrust statutes, § 47-18-1
et seq.,
because plaintiffs have sufficiently alleged that they suffered an antitrust injury under the private damages provision of the statute; (6) Wisconsin’s antitrust statute, Wis. Stat. Ann. § 122.01
et seq.,
because plaintiffs have sufficiently alleged an antitrust injury under Wisconsin law; and (7) the common law of Arizona, Colorado, Connecticut, Florida, Idaho, Minnesota, New Jersey, New York, Pennsylvania, West Virginia, Wisconsin and Texas, because plaintiffs have alleged facts sufficient to support an inference of unjust enrichment under the common law of those jurisdictions. Defendants’ motion to dismiss will be granted as to all other claims because plaintiffs have failed to allege a future injury justifying injunctive relief under federal or state laws, plaintiffs
BACKGROUND
Defendants Fannie Mae and Freddie Mac are federally chartered corporations with shares that are traded publicly on the New York Stock Exchange. Fannie Mae was established by Congress to “provide stability in” and “ongoing assistance to the secondary market for residential mortgages ... by increasing the liquidity of mortgage investments and improving the distribution of investment capital available for residential mortgage financing[J” 12 U.S.C. § 1716(8). It was authorized to “manage and liquidate federally owned mortgage portfolios,” 12 U.S.C. § 1716, and to “purchase, service, sell” certain residential mortgages. 12 U.S.C. § 1717(b). For similar reasons, Freddie Mac was “authorized to purchase ... residential mortgages” within statutorily prescribed limits. 12 U.S.C. § 1454.
According to plaintiffs, Fannie Mae and Freddie Mac operate exclusively in the secondary mortgage market and are expressly prohibited by their charters from lending directly to cоnsumers. (“Consolidated Class Action Compl. (“Compl.”) ¶ 28.) Fannie Mae and Freddie Mac purchase portfolios of residential mortgages originated by commercial lenders in the primary mortgage market and package the portfolios to create mortgage-backed securities as liquid instruments that trade in capital markets. {Id. ¶¶ 23, 29, 30.) The payment stream from the pooled mortgages underlying a mortgage-backed security flows through to the certificate holder of the security and constitutes its core value. {Id. ¶¶ 29, 30.) When Fannie Mae and Freddie Mac package mortgages as securities, they guarantee to the certificate holders the timely payment of the mortgages’ principal and interest. {Id. ¶¶ 30, 45.)
Fannie Mae and Freddie Mac insure this guarantee against the possibility of defaults in the underlying portfolio by collecting a guarantee fee (“G-fee”). {Id. ¶ 30.) Any lender hoping to sell its residential mortgages to Fannie Mae or Freddie Mac must negotiate to become an approved seller/servicer, and then must originate mortgages that conform to Fannie Mae’s or Freddie Mac’s specifications, which includе the G-fee. {Id. ¶¶ 38-42.) The amount of the G-fee is generally paid by the mortgage holder on a monthly basis from a portion of the interest payment received on the underlying mortgage loans. {Id. If 47.) Plaintiffs allege that lenders pass on to the borrowers all of the G-fee cost. {Id. ¶ 42.) In most cases, the borrower is unaware of the G-fee, which is incorporated into the pricing of the mortgage loan {id. ¶ 46) and paid by the borrower “in the form of higher monthly payments {%.&., higher interest rates).” {Id. ¶ 39; see also id. ¶ 47.)
To the extent that the borrowers in the underlying mortgage portfolios do not default, the G-fees become profit for the defendants.
{Id.
¶ 32.) Alternatively, to the extent that borrowers default, the collected G-fees must be tapped to make good on the guarantees to the certificate holders.
{Id.)
On average, G-fees amount to nearly two-tenths of one percent, or 0.0019, of the loan
{id.
¶¶ 2, 44), but may vary across originating lenders. The exact amount collected by each lender is negotiated in secret between that lender and Fannie Mae or Freddie Mac and is, at
Plaintiffs are individuals or entities, residents and prеsumed citizens of Arizona, Colorado, Connecticut, Florida, Idaho, Minnesota, New Jersey, New York, Pennsylvania, Texas, West Virginia, and Wisconsin, who have obtained, after January 1, 2001, from a commercial lender operating in the primary mortgage market in the United States a conforming mortgage loan that contains a G-fee set by one of the defendants. 1 (Id. ¶¶ 1, 10, 15, 28.) Plaintiffs allege that Fannie Mae and Freddie Mac conspired with each other to fix the price of the G-fee when instead they should have been competing with each other in G-fee pricing. As a result, plaintiffs say, they have suffered damages to the extent that the alleged conspiracy produced higher G-fees than competitive pricing would have produced. (Id. ¶¶ 47-48, 52-58, 63, 65-66, 73-75, 76.) Specifically, plaintiffs allege that defendants have violated the federal antitrust law, 15 U.S.C. § 1, by engaging in a horizontal contract, combination or conspiracy in unreasonable restraint of trade, and seek both treble damages and declaratory and injunctive relief for defendants’ alleged federal violations. Plaintiffs also seek damages and injunctive relief for alleged violations of the antitrust laws of twenty-two states and the District of Columbia, for alleged violations of Florida’s Deceptive Trade Practices Act, for Fannie Mae’s alleged violation of the District of Columbia’s consumer protection law, and for Freddie Mac’s alleged violation of Virginia’s consumer protection statute. Finally, plaintiffs seek the equitable remedies of restitution, disgorgement or a constructive trust for the alleged unjust enrichment resulting from the conspiracy in restraint of trade. Defendants argue that each of plaintiffs’ claims should be dismissed for failure to state a claim upon which relief may be granted.
DISCUSSION
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for failure to state a claim upon which relief can be granted.
See
Fed.R.Civ.P. 12(b)(6). A court considering a Rule 12(b)(6) motion to dismiss assumes all factual allegations in the complaint to be true, even if they are doubtful.
Bell Atl. Corp. v. Twombly,
I. FEDERAL ANTITRUST CLAIMS
A. Claim for damages
In Count I of the complaint, plaintiffs allege injury under § 4 of the Clayton Act, codified at 15 U.S.C. § 15, which provides in relevant part that
[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States ... and shall recover threefold the damages by him sustained ....
15 U.S.C. § 15. The Supreme Court has acknowledged that “[a] literal reading of the statute is broad enough to encompass every harm that can be attributed directly or indirectly to the consequences of аn antitrust violation[,]”
Associated Gen. Contractors v. California State Council of Carpenters,
Defendants argue that Count I should be dismissed under Rule 12(b)(6) because plaintiffs were not direct purchasers of defendants’ products, and therefore do not state an antitrust injury. Here, the complaint establishes that plaintiffs are not direct purchasers. Rather, it is the lenders, not the plaintiffs, who participate in the antecedent transaction with the alleged monopolist, and who then allegedly pass on the G-fee in the form of higher interest rates to plaintiffs. It is the lenders, not the plaintiffs, who desire and negotiate for the product that incurs the G-fee — the conforming mortgage that can be pooled and sold as a mortgage-backed security on the
Indeed, plaintiffs argue that their action falls within the “control” exception to
Illinois Brick’s
direct purchaser rule.
See
Plaintiffs assert that lenders serve as agents for defendants with respect to the G-fees (Compl. ¶ 14), act as “mere conduits” between borrowers and defendants for purposes of collecting G-fees (id. ¶ 43), and that “there is functional economic unity between the lenders and Fannie Mae or Freddie Mac.” (Compl. ¶ 41; see also id. ¶¶ 42, 43.) In support of their legal conclusion, plaintiffs allege that in 2003, the two defendants “held seventy percent (70%) of the ... business of pooling and selling mortgages as mortgage-backed securities, [and] ... are the source of liquidity for more than 75% of the conforming home mortgages originated in the United States” (id. ¶ 27); that “[a] lender must negotiate with Fannie Mae and Freddie Mac in order to become an approved seller/servicer” (id. ¶ 39); that defendants use “contractual agreements with approved [lenders] ... tо assure that lenders originate and sell” to the two defendants only those mortgages that conform to the defendants’ specifications (id. ¶ 40); that for a fee, defendants provide to approved lenders software known as the automated underwriting system (AUS) to qualify mortgages according to defendants’ specifications (id. ¶ 41); that defendants “exercise detailed and broad control over the activities of the lenders” in dictating the specific terms of a conforming mortgage (id.); and that defendants each “have secretly met with lenders (approved seller/servicers) to discuss the terms, conditions, and costs under which they will buy the lender’s loans [and] ... require [that] lenders ... keep the terms confidential and they are forbidden to reveal the negotiated G-Fee rates.” (Id. ¶ 46.)
While the defendants argue that the facts plaintiffs allege fall short of offering a reasonable basis for an inference that there is functional economic unity between either of the defendants and the numerous banks and other commercial lenders na
B. Claim for injunctive relief
In Count II, plaintiffs seek injunctive relief under § 16 of the Clayton Act, codified at 15 U.S.C. § 26, which provides that “[a]ny person ... shall be entitled to sue for and have injunctive relief ... against threatened loss or damage by a violation of the antitrust laws.... ” Defendants argue that plaintiffs may not seek injunctive relief since they fail to allege any conduct posing a risk of future harm to them. “[I]f a plaintiff feels the adverse impact of an antitrust conspiracy on a particular date, a cause of action immediately accrues to him to recover all damages incurred by that date and all provable damages that will flow in the future from the acts of the conspirators on that date.”
Zenith Radio Corp. v. Hazeltine Research Inc.,
The complaint identifies as plaintiffs only those whо have “obtained residential real estate loans from commercial lenders and make monthly mortgages that include G-Fees at artificially inflated levels set by the Defendants.” (Compl. ¶ 10.) The complaint does not allege that any of the plaintiffs are prospective mortgagees of conforming mortgages that have not already been originated. Plaintiffs allege that the cost of the G-fee each borrower pays as part of his or her monthly interest rate on the mortgage “throughout the life of the loan is ‘baked into’ the loan transaction at the outset, and continues throughout the life of the loan on an unchanged basis” and that the “G-Fees set at the time of the loans by approved seller/servi-cers and at all times thereafter throughout the life of the mortgage loans effectively constitute only one G-Fee transaction.”
Plaintiffs have conflated damages from a past injury that will be realized in the future, sometimes referred to as future damages, with the threat of a future injury. Plaintiffs seek injunctive relief to prevent defendants from “colluding with regard to G-Fees and requiring of lenders that G-Fees be kept secret and confidential.” (Compl. §§ 37, 88.) However, even if this alleged collusion were to be enjoined, plaintiffs would not feel relief because none claims to be a future mortgagee, and as current mortgagees, the G-Fees are already “baked in” to their mortgages as current mortgagees. An order enjoining defendants from specific future conduct would have no remedial effect whatsoever on the continuing future damages plaintiffs expect to experience due to thе past injury they allege was inflicted at the time when their loans were originated. Plaintiffs’ allegations do not identify any future conduct by defendants that threatens to injure plaintiffs’ business or property. Any injury that occurred to the plaintiffs occurred when they obtained their mortgages, and plaintiffs’ predicament is one of future damages, not future injury.
Because plaintiffs have pled that they are threatened with future damages, but not with future injury, their federal claim for injunctive relief (Count II) will be dismissed for failure to state a claim upon which relief may be granted.
II. STATE STATUTORY CLAIMS
Counts III through VI assert state statutory claims. In Count IV, the complaint states that
[defendants have entered into agreements in restraint of trade in violation of numerous other state laws identified below [listing 24 jurisdictions and referring to 26 sets of statutes]. To the extent these other state laws apply to Plaintiffs’ claims, Plaintiffs seek injunctive relief and, where available, compensatory and multiple damages under the following state laws as to claims of class members who obtained loans in those states.
(Compl. ¶ 97.) For the same reason that plaintiffs are not entitled to federal antitrust injunctive relief — because plaintiffs identify a past, not a future, injury — they are not entitled to any state antitrust in-junctive relief. In addition, the plaintiffs lack standing to allege antitrust violations under the laws of states where no named plaintiffs have been personally injured. Accordingly, defendants’ motion to dismiss will be granted as to all claims for injunc-tive relief under the state antitrust laws identified in Counts III and IV.
A. State claims without a proper plaintijf
In Counts III and IV of the complaint, plaintiffs allege either consumer protection or antitrust violations arising under the statutes of California, the District of Columbia, Iowa, Kansas, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Nebraska, Nevada, New Mexico, North Carolina, North Dakota, South Da
must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent. Unless these [plaintiffs] can thus demonstrate the requisite case or controversy between themselves personally and [defendants], none may seek relief on behalf of himself or any other member of the class.
Warth,
B. Antitrust injury under state antitrust claims
States may, but need not, follow the rule of
Illinois Brick
in enforcing their own state antitrust laws.
California v. ARC America Corp.,
Recognizing that “the infinite variety of claims that may arise make it virtually impossible to announce a black-letter rule that will dictate the result in every
As to the first category, the nature of the injury, the Supreme Court’s decisions “have emphasized the central interest in protecting economic freedom of participants in the relevant market.”
AGC,
1. Arizona antitrust claims
Plaintiffs assert a state antitrust claim under Arizona’s laws, codified at Ariz.Rev.Stat. § 44-1401
et seq.
Arizona’s statute permits, but does not require, a court enforcing Arizona’s antitrust statute to apply federal case law interpreting comparable federal antitrust provisions. Ariz. Rev.Stat. § 44-1412. By its decision in
Bunker’s Glass Co. v. Pilkington, PLC,
The Arizona court implicitly declined to apply the factors further defining and limiting antitrust injury under § 4 of the Clayton Act that were identified by the Supreme Court in
AGC,
a decision mentioned only by the dissent, not the majority, in
Bunker’s Glass.
2. Minnesota antitrust claims
Plaintiffs assert an antitrust claim under Minn.Stat. § 325D.52
et seq.
Minnesota does not follow the rule of
Illinois Brick. State by Humphrey v. Philip Morris Inc.,
The Minnesota Supreme Court has determined that the
AGC
factors “do not provide the benchmark for antitrust standing in Minnesota,” that an antitrust plaintiff does not have to be a consumer or competitor in the market restrained by the alleged antitrust violation, and that application of the
AGC
factors to claims arising under Minnesota antitrust law would “contravene the plain language of the [Minnesota antitrust] statute and ... thwart the intent of the legislature by barring indirect purchaser suits for the reasons articulated in
Illinois Brick.” Lorix v. Crompton Corp.,
3. New Jersey antitrust claims
Plaintiffs assert a claim under New Jersey’s antitrust statutes, codified at N.J. Stat. Ann. § 56:9-1
et seq.
After plaintiffs initiated this action, the New Jersey appellate court issued an opinion leaving no doubt that New Jersey follows the rule of
Illinois Brick,
and that indirect purchasers lack standing under the New Jersey Antitrust Act.
See Sickles v. Cabot Corp.,
379 NJ.Super. 100,
4. New York antitrust claims
Plaintiffs assert a claim under New York’s antitrust statute, the Donnelly Act, codified at N.Y. Gen. Bus. Law § 340 et seq. New York’s law limits class actions by private persons. Specifically,
[ujnless a statute creating or imposing a penalty, or a minimum measure of recovery specifically authorizes the recovery thereof in a class action, an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained as a class action.
N.Y. Civ. Prac. Law & R. § 901(b). This limitation applies to claims brought under the Donnelly Act, and New York courts have held that a class of private persons cannot maintain a Donnelly Act action. “Private persons are precluded from bringing a class action under the Donnelly Act (General Business Law § 340) because the treble damages remedy provided for in subsection 5 constitutes a ‘penalty’ within the meaning of CPLR 901(b).”
Cox v. Microsoft Corp.,
As was discussed in
Erie Railroad Co. v. Tompkins,
5. West Virginia antitrust claims
Plaintiffs assert a West Virginia antitrust claim under West Virginia Code § 47-18-1 et seq. In 1990, the West Virginia legislature approved a legislative rule, now codified at 142 Code of State Rules § 9, which had been proposed by the state’s attorney general under W. Va.Code § 47-18-20. The legislative rule, which carries the force of law, 4 expressly provides that “[a]ny person who is injured directly or indirectly by reason of a violation of the West Virginia Antitrust Act, ... may bring an action for damages under W. Va.Code § 47 — 18—9[,]” which is West Virginia’s statutory equivalent of § 4 of the Sherman Act. 142 C.S.R. § 9. Under this rule, plaintiffs’ injuries fall within the scope of § 47-18-9, and the rule of Illinois Brick is inapplicable.
In light of West Virginia’s statute expressly requiring “harmony with judicial interpretations of the comparable federal antitrust statutes,” W. Va.Code § 47-18-16, a West Virginia court is bound to consider other U.S. Supreme Court decisions in determining whether plaintiffs’ injuries are cognizable as antitrust injuries under § 47-18-9. No published decision of a West Virginia court has considered whether or to what extent the Supreme Court’s decisions, and in particular the factors identified in McCready and AGC, apply to § 47-18-9. A ruling here will be one of first impression.
Applying the various factors a court should consider in determining whether a plaintiff has alleged an antitrust injury, but leaving aside — as required by West Virginia law — the fact that the injury was passed-on by the lenders to plaintiffs, the only close question involves the nature of the injury alleged. On the one hand, plaintiffs here are not participants in the allegedly restrained market of eollusively priced G-fees. On the other hand, the injury alleged is of the type that flows from the alleged antitrust violation — price-fixing. Furthermore, although the margin of the overcharge of the G-fee that is due to the illegal collusion would necessarily be an estimate based on unverifiable assumptions, each plaintiffs damages would be based on the amount of the loan, and it cannot be said that the damages sought are speculative or that apportionment would be complex. There is only a slight chance of duplicative recoveries in this case. Although the lenders could sue, they have not yet done so. The allegations establish that lenders have few incentives to sue and have mitigated their damages in any case. Defendants’ intent to harm the victims is clearly alleged in the complaint and also weighs decidedly in favor of determining that plaintiffs have alleged an antitrust injury. On balance, the factors
6. Wisconsin antitrust claims
Plaintiffs assert a claim under Wisconsin’s antitrust statute, codified at Wis. Stat. Ann. § 122.01 et seq. After the decision in Illinois Brick was announced, the Wisconsin legislature effectively repealed the rule barring suit by indirect purchasers by amending its antitrust statute to allow a suit for treble damages by “any person injured, directly or indirectly, by anything prohibited” under the state antitrust statute. Wis. Stat. Ann. § 133.18(l)(a).
Wisconsin’s antitrust statutes do not include a provision requiring Wisconsin’s courts to harmonize their findings with federal decisional law. However, “[wjhile federal cases construing federal law are not controlling on Wisconsin courts’ interpretations of state statutes, over the years [Wisconsin] courts have looked to federal antitrust decisions for guidance when the language and policy of the federal and state antitrust statutes are substantially similar and when Wisconsin case law on an issue is ‘scarce.’ ”
Carlson & Erickson Builders v. Lampert Yards,
1. Is there a causal connection between the antitrust violation and the harm to the plaintiff?
2. Did the defendant intend to cause the particular harm?
3. The nature of the claimant’s injuries, most specifically the directness or indirectness of those injuries. Included in this consideration is whether there is another class of affected individuals who are more directly injured.
4. Is the injury claimed highly speculаtive in nature? At bottom, does the claimed injury rest on an abstract conception or speculative measure of harm.
5. The risk of duplicative recovery as well as the danger and judicial manageability of complex apportionment of damages.
Id.
at *3. The court also noted that “[t]he
AGC
court also directed attention to whether a claimant was a consumer or competitor in the restrained marketf,]” a concern logically interrelated with other “nature of the injury” concerns.
Id.
at *4. Finding that the plaintiff in
Strang
was neither a consumer nor a competitor in the restrained market, that the damages sought were speculative, that apportionment of any damages would be exceedingly complex, and — in light of the fact that the retail merchants had already brought an
Applying a similar analysis to these facts suggests that plaintiffs here have alleged facts that support the following inferences: (1) plaintiffs’ injuries are causally connected to defendants’ conduct; and (2) defendants knew that plaintiffs would be injured by their conduct; but (3) plaintiffs do not participate in the allegedly restrained market, their injury is indirect, and there are other more directly injured persons. Further, the damages plaintiffs seek are not exceptionally speculative, there is only a slight risk of duplicative recoveries, and the apportionment of damages would not present exceptionally complex issues for judicial management. On balance, then, as applied to this case, the factors a Wisconsin court would consider lead to the conclusion that plaintiffs have stated an antitrust injury under Wisconsin law. The allegations here disclose a restraint of the type outlawed by the antitrust act that is alleged to have produced increased prices that injured these plaintiffs. Although the Wisconsin court treated as important the fact that the
Strang
plaintiff was neither a consumer nor a competitor in the restrained market, it did not indicate that the factor was critical or necessary,
id.
at *4, and the Supreme Court has stated that a plaintiff need not be a consumer, purchaser, competitor or seller in order to allege an antitrust injury.
Mandeville Island Farms, Inc. v. Am. Crystal Sugar Co.,
C. State consumer protection claims 1. D.C. Consumer Protection Procedures Act
In Count V, plaintiffs assert a claim against Fannie Mae under the District of Columbia’s Consumer Protection Procedures Act (“CPPA”). D.C.Code § 28-3901
et seq.
The CPPA was enacted “to police trade practices arising only out of consumer-merchant relationships.”
Howard v. Riggs Nat'l Bank,
Plaintiffs allege that Fannie Mae violated the CPPA by failing “to state a material fact,” contrary to Section 28-3904(f) of the CPPA. (Compl. §§ 101-102.) Plaintiffs specify that the defendants prevented lenders from revealing material facts in mortgage transactions, by alleging that Fannie Mae required lenders not to disclose “the existence and amount of the G-Fees ... ‘baked into’ loans to borrowers.” (Compl. ¶ 102.) Plaintiffs do not
2. Virginia Consumer Protection Act
In Count VI, plaintiffs assert a claim against Freddie Mаc under the Virginia Consumer Protection Act (“VCPA”). Va. Code Ann. § 59.1-196
et seq.
The VCPA provides that it is unlawful to use any “deception, false pretense, false promise, or misrepresentation in connection with a consumer transaction.” Va.Code Ann. Sec. § 59.1-200. Just as Fannie Mae had not provided any plaintiff with any goods or services, neither has Freddie Mac provided any plaintiff with any goods or services, either directly or indirectly. For this reason alone, plaintiffs cannot state a claim against Freddie Mac under the VCPA.
See Siradas v. Chase Lincoln First Bank,
Civil Action No. 98-4028,
3. New York Consumer Protection Act
Plaintiffs assert in Count IV a claim under the New York Consumer Protection Act (“CPA”). N.Y. Gen. Bus. Law § 349
et seq.
The Consumеr Protection Act provides for actual damages or treble damages where the violation is knowing or
4. Florida Deceptive and Unfair Trade Practices Act
Plaintiffs assert in Count IV a claim under the Florida Deceptive and Unfair Trade Practices Act (“DUTPA”). Fla. Stat. Ann. § 501.201
et seq.
The DUTPA prohibits “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.... ” Fla. Stat. Ann. § 501.204(1). While the DUTPA at one time had been interpreted to apply only to parties to a consumer transaction, the Florida legislature amended the statute in 2001 to allow a damages action by any “person who has suffered a loss as a result of a violation оf this part,” dropping the requirement that an action for damages under the DUTPA had to be brought by a consumer. Fla. Stat. Ann. § 501.211(2);
Niles Audio Corp. v. OEM Systems Co., Inc.,
Here, plaintiffs allege they have suffered a loss due to defendants’ price-fixing, an unfair method of competition. Because the DUTPA does not require that plaintiffs be consumers of anything sold by Fannie Mae or Freddie Mac in order to have a claim for damages, the Florida plaintiffs have stated a claim under DUT-PA. Accordingly, defendants’ motion to dismiss will be denied as to the Florida plaintiffs’ claims arising under Florida’s DUTPA.
III. STATE COMMON LAW UNJUST ENRICHMENT CLAIMS
Defendants argue that plaintiffs’ unjust enrichment claims, found in Count VII, should be dismissed because plaintiffs lack antitrust standing to seek damages. In Count VII, plaintiffs assert an unjust enrichment claim against defendants, but do not identify any particular jurisdiction’s laws they mean to implicate. Plaintiffs allege facts sufficient to support an inference of unjust enrichment under the сommon law of many jurisdictions — that plaintiffs conferred, and were impoverished by, overpayments that defendants benefited from and did not deserve, and that plaintiffs have no adequate remedy at law.
5
See, e.g., Carter v. Safeway Stores,
Unjust enrichment is a common law equitable claim, available only where there is no adequate remedy at law. Rule 8, however, expressly permits pleading in the alternative of the sort employed by plaintiffs here, even where they appear to have an adequate remedy at law.
A party may set forth two or more statements of a claim ... alternatively or hypothetically.... A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal, equitable, or maritime grounds.
Fed.R.Civ.P. 8(e)(2). “It is not generally a ground for dismissal of a complaint asserting equitable claims that the plaintiff has an adequate remedy at law.” 1 Moore’s Fed. Prac. § 2.03[2] (Matthew Bender 3d ed.). Accordingly, defendants’ motion to dismiss plaintiffs’ claims for common law unjust enrichment in the four jurisdictions — Arizona, Florida, West Virginia and Wisconsin — where plaintiffs’ antitrust or consumer protection claims survive, will be denied.
Defendants argue that the unjust enrichment claims should be dismissed for lack of antitrust standing where plaintiffs are barred either under
Illinois Brick
or
AGC
from pursuing antitrust damages. They argue that plaintiffs should not be permitted to make an “end run” around the indirect purchaser bar by asserting unjust enrichment claims in the alternative. Although defendants cite decisions in support of their position, not all courts agree, and for sound reasons.
See In re Cardizem CD Antitrust Litig.,
MDL No. 1278, Order No. 79 at 28-32, May 23, 2003 (Mem. Op. and Order Granting in Part and Den. in Part Defs.’ Mot to Dismiss)
(“Cardizem
”). As an initial matter, “federal statutes should not be construed to displace a court’s traditional equitable jurisdiction absent ‘the clearest command or an inescapable inference to the contrary.’”
Id.
at 30 (quoting
Miller v. French,
CONCLUSION AND ORDER
For the reasons stated above, it is hereby
ORDERED that defendants’ motion [14] to dismiss be, and hereby is, GRANTED in part and DENIED in part. The motion
Notes
. Plaintiffs define conforming mortgages as "loans that conform to the guidelines of Fannie Mae and Freddie Mac.” (Compl. ¶ 25.) Those guidelines "establish uniform features for the loan, such as the maximum loan amount, the down payment amount, the minimum credit worthiness for the borrower, the borrower’s income requirements, and suitable properties.”
(Id.)
Plaintiffs allege that if "a loan does not conform to the GSE guidelines, the Defendants are unlikely to purchase the loan except in unusual circumstances.”
(Id.) See also Anchor Savings Bank F.S.B. v. United States,
. Whether other reasons would cause plaintiffs' claims under these state laws to be dismissed if there were an appropriate plaintiff is not reached here.
. For example, the
AGC
Court in describing the risk of complex apportionment of damages in that case said the District Court would have to identify damages and apportion "them among directly victimized contractors and subcontractors and indirectly affected employees and union entities. It would be necessary to determine to what extent the coerced firms diverted business away from union subcontractors, and then to what extent those subcontractors absorbed the damage to their businesses or passed it on to employees by reducing the work force or cutting hours or wages.”
AGC,
. In West Virginia, ''[¡legislative rules are proposed by an agency subject to the Administrative Procedures Act (APA), but must be approved by the Legislature before they go into effect.... A legislative rule is the only form of rule under the APA which: carries the force of law, or supplies a basis of civil or criminal liability, grants or denies a specific benefit.” West Virginia Secretary of State at http://www.wvsos.com/adlaw/rulemaking/ ruletypes.htm.
. Plaintiffs ask for restitution and a constructive trust (and mention disgorgement in a section heading), but the parties do not address the proper measure of relief for unjust enrichment under the laws of any of the states.