FROM THE DISTRICT COURT OF BERNALILLO COUNTY Clay Campbell,
New Mexico Law Group PC Robert Neil Singer Albuquerque, NM
Adams Corporate Law, Inc. Addison K. Adams Santa Ana, CA for
Thornton & Baehr, P.C. Michael P. Clemens Rodney L.
Schlagel Rheba Rutkowski Albuquerque, NM for Appellants
J. VARGAS, Judge.
In this interlocutory appeal, we consider whether the
language in NMS A 1978, Section 57-12-10(B) (2005) of New
Mexico Unfair Practices Act (UPA) allowing "[a]ny person
who suffers any loss ... as a result of any ... act or
practice declared unlawful by the [UPA to] bring an action[,
]" creates a private right of action for businesses
seeking to bring suit against competitors for unfair
competition practices. Taking into consideration both the
plain language of the statute and the UPA's remedial
purpose as a consumer protection statute, we hold that a
business may sue a competitor under the UPA only if the
conduct alleged involves consumer protection concerns or
trade practices addressed to the market generally. Because
Plaintiffs claims against its business competitor do address
such concerns, we affirm.
Plaintiff Gandydancer, LLC and Defendant Rock House CGM, LLC
are both construction companies providing railroad
contracting services to BNSF Railway Company (BNSF). In the
spring of 2015, Plaintiff submitted a complaint to the New
Mexico Construction Industries Division (CID), alleging
Defendant had performed unlicensed construction work in
violation of the Construction Industries Licensing Act
(CILA), NMS A 1978, §§60-13-1 to -59 (1967, as
amended through 2013). Following an investigation, Defendant
entered into a stipulated settlement agreement with CID
agreeing to pay administrative penalties. A week before the
stipulated settlement agreement was approved by CID's
supervisory commission, Plaintiff sued Defendant in district
court raising several claims, including a UPA claim.
Plaintiffs complaint alleged that Defendant operated its
business without satisfying the mandatory licensing
requirements, induced Plaintiffs former employees to divulge
confidential trade secrets, and used those trade secrets to
convince BNSF to hire Defendant instead of Plaintiff without
disclosing to BNSF that it was unlicensed.
Defendant filed a motion to dismiss, asserting Plaintiff had
no standing to bring the UPA claim and failed to state any
claims upon which relief could be granted. Following a
hearing, the district court denied Defendant's motion to
dismiss Plaintiffs UPA claim and certified the question of
"whether the [UPA] affords private-party standing to
business competitors who are both sellers of services, or
only to buyers of goods and services" to this Court for
interlocutory review. Defendant then filed an application for
interlocutory appeal, which this Court granted pursuant to
Rule 12-203 NMRA and NMSA 1978, Section 39-3-4(B) (1999).
Defendant raises three issues on appeal. First, Defendant
contends that our prior decisions and the legislative intent
of the UPA to protect consumers limits its grant of standing
to "a person who purchased goods or services[, ]"
notwithstanding the broad language of Section 57-12-10(B)
allowing "[a]ny person who suffers any loss of money or
property" to bring a claim. Next, Defendant claims
Plaintiff has failed to state a viable UPA claim, requiring
dismissal with prejudice of its complaint. Finally, Defendant
argues that to allow Plaintiff to bring a UPA claim against a
competitor for failing to obtain a license would result in an
improper usurpation of the government's regulatory
authority. We are not persuaded by Defendant's arguments
and affirm the district court.
Standard of Review
A business competitor's standing to bring a private right
of action under the provisions of the UPA is an issue of
first impression in New Mexico. See First Nat'l
Bancorp Inc. v. Alley, 76 F.Supp.3d 1261, 1263
(D.N.M. 2014) (acknowledging no New Mexico court had directly
decided the issue of competitor standing under the UPA);
Navajo Nation v. Urban Outfitters, Inc., 935
F.Supp.2d 1147, 1174 (D.N.M. 2013) (acknowledging undecided
nature of competitor standing). Statutory interpretation, as
well as a party's standing to litigate a particular issue
are both questions of law we review de novo. Town of
Silver City v. Scartaccini, 2006-NMCA-009, ¶ 11,
138 N.M. 813, 126 P.3d 1177.
Plaintiffs Standing to Bring a Claim
Defendant effectively makes two arguments as to why Plaintiff
cannot bring a claim under the plain language of the UPA.
First, Defendant argues that the provision in Section
57-10-12(B) allowing "[a]ny person who suffers any
loss" to bring a claim is tempered by the legislative
intent of the UPA and our prior case law limiting standing to
buyers of goods and services. Second, Defendant contends
that, while the UPA ...