     16-586
     Dole v. Adams

 1                       UNITED STATES COURT OF APPEALS
 2                           FOR THE SECOND CIRCUIT
 3
 4                                SUMMARY ORDER
 5
 6   RULINGS  BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
 7   FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
 8   APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
 9   ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
10   OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY
11   ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
12
13        At a stated term of the United States Court of Appeals for
14   the Second Circuit, held at the Thurgood Marshall United States
15   Courthouse, 40 Foley Square, in the City of New York, on the
16   19th day of January, two thousand seventeen.
17
18   PRESENT: DENNIS JACOBS,
19            ROSEMARY S. POOLER,
20            PETER W. HALL,
21                          Circuit Judges.
22
23   - - - - - - - - - - - - - - - - - - - -X
24   C. MINOT DOLE,
25            Plaintiff-Appellant,
26
27                -v.-                                           16-586
28
29   WILLIAM ADAMS,
30            Defendant-Appellee.
31
32   - - - - - - - - - - - - - - - - - - - -X
33
34   FOR APPELLANT:                                 THOMAS C. NUOVO, Bauer Gravel
35                                                  Farnham, Colchester, VT.
36
37   FOR APPELLEE:                                  ADAM H. MILLER, Adam H.
38                                                  Miller, PLLC, Huntington, VT.
39


                                                1
 1                                      Tomas A. Shpall, Rosenberg,
 2                                      Shpall & Zeigen, APLC, San
 3                                      Diego, CA, on the brief.
 4
 5
 6       Appeal from an order of the United States District Court

 7   for the District of Vermont (Murtha, J.).


 8       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND

 9   DECREED that the judgment of the district court be AFFIRMED.


10       C. Minot Dole (“Dole”) appeals from an order of the United

11   States District Court for the District of Vermont (Murtha, J.)

12   dismissing his claim alleging fraud in connection with a real

13   estate investment transaction in violation of the Vermont

14   Consumer Fraud Act (“VCFA”), Vt. Stat. Ann. tit. 9, §§ 2451 et

15   seq.1   We review de novo the grant of judgment on the pleadings

16   pursuant to Federal Rule of Civil Procedure 12(c).    Morris v.

17   Schroder Capital Mgmt. Int’l, 445 F.3d 525, 529 (2d Cir. 2006).

18   We assume the parties’ familiarity with the underlying facts,

19   the procedural history, and the issues presented for review.


20       The VCFA prohibits “[u]nfair methods of competition in

21   commerce and unfair or deceptive acts or practices in commerce.”

     1
       The statute was renamed after Dole initiated the instant
     action and is now known as the Vermont Consumer Protection Act.
                                    2
 1   Vt. Stat. Ann. tit. 9, § 2453.     The district court held that

 2   Dole’s claim failed because the transaction at issue -- Dole’s

 3   purchase and leaseback of seventeen properties in Texas from

 4   a company called DIS Partners -- was not “in commerce.”     We

 5   agree for substantially the same reasons stated in the district

 6   court’s opinion.    See Dole v. Adams, 2015 WL 2184130, at *3,

 7   2015 U.S. Dist. LEXIS 62820, at *6-9 (D. Vt. May 11, 2015).


 8       At least two features of the transaction combine to take

 9   it outside the scope of “in commerce” as that term is used in

10   the VCFA.    First, DIS Partners did not extend its real estate

11   investment offer to the public at large.   See Foti Fuels, Inc.

12   v. Kurrle Corp., 195 Vt. 524, 536 (2013) (“To be considered ‘in

13   commerce,’ the transaction must take place in the context of

14   an ongoing business in which the defendant holds himself out

15   to the public.” (internal quotation marks and alterations

16   omitted)).    Rather, the offer was made available to a limited

17   group of “Accredited Investors” (defined by their high net worth

18   or income) through a “Confidential Private Placement

19   Memorandum.”    Second, the transaction was tailored to meet

20   Dole’s particular tax need to find a suitable like-kind exchange

21   for a building he owned, and it featured special lease terms

                                    3
 1   and separately negotiated promissory notes.    See id. at 537-38

 2   (finding the “in commerce” element unmet in part because of the

 3   transaction’s “high level of customization”).     Given the

 4   relatively private and individualized nature of the

 5   transaction, the alleged fraudulent conduct did not “have a

 6   potential harmful effect on the consuming public, and thus [did

 7   not] constitute a breach of a duty owed to consumers in general.”

 8   Id. at 536.


 9       Accordingly, we hereby AFFIRM the judgment of the district

10   court.


11                                FOR THE COURT:
12                                CATHERINE O’HAGAN WOLFE, CLERK




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