HO v. VISA INC

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Supreme Court, Appellate Division, First Department, New York.

Siolen Kelly HO, et al., Plaintiffs-Appellants, v. VISA U.S.A., INC., et al., Defendants-Respondents.

Decided: March 22, 2005

TOM, J.P., ANDRIAS, SAXE, FRIEDMAN, NARDELLI, JJ. Ballon Stoll Bader & Nadler, P.C., New York (Irving Bizar of counsel), for appellants. Heller Ehrman White & McAuliffe LLP, San Francisco, CA (Stephen V. Bomse, of the California Bar, admitted pro hac vice, of counsel), and Arnold & Porter LLP, New York (Robert C. Mason of counsel), for Visa U.S.A., Inc., respondent. Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York (Gary R. Carney of counsel), for MasterCard International Incorporated, respondent.

Judgment, Supreme Court, New York County (Bernard J. Fried, J.), entered June 22, 2004, dismissing the complaint in this purported class action, unanimously affirmed, without costs.

Plaintiffs' claim under General Business Law § 349-retailers being required to accept defendants' debit cards if they want to continue accepting credit cards-fails because of the remoteness of their damages from the alleged injurious activity.   That debit cards result in higher charges to the retailers does not elevate to an actionable claim any perceived injuries to the retailers' customers.   Those injuries are too remote and derivative to countenance such a cause of action (see Blue Cross & Blue Shield of N.J. v. Philip Morris USA, 3 N.Y.3d 200, 785 N.Y.S.2d 399, 818 N.E.2d 1140 [2004] ).

Plaintiffs are without standing to pursue the Donnelly Act claim (General Business Law § 340), which also fails because of remoteness. Whatever damages they suffered are barely in the zone of injury, and would be virtually impossible to calculate.   Furthermore, these credit card issuers were the subject of an action brought by the retailers, which was settled.   Thus, they have been subjected to judicial remediation for their wrongs, and any recovery here would be duplicative.