UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2022

Argued: June 28, 2023 Decided: August 30, 2023

Docket No. 22-282-cv

RSD LEASING, INC.,

Plaintiff-Appellant,

— v. —

NAVISTAR INTERNATIONAL CORP., NAVISTAR, INC.,

Defendants-Appellees.

Before:

LYNCH, LOHIER, and BIANCO, Circuit Judges.

Plaintiff-Appellant RSD Leasing Inc., a company that leases and, eventually, resells trucks to other commercial entities, appeals from a decision by the District Court for the District of Vermont (Crawford, Ch. J.) granting in relevant part summary judgment to Defendants-Appellees Navistar International Corp. and Navistar, Inc., the manufacturer of several allegedly substandard trucks in RSD’s fleet. The sole question we are asked to resolve on appeal is whether, for purposes of its purchase of those trucks, RSD qualifies as a “consumer” under the Vermont Consumer Protection Act and therefore is eligible to invoke the Act’s protections. In the absence of any on-point Vermont caselaw signaling whether the statute extends “consumer” protections to a business that purchases a good intending exclusively to lease that good to a third party and then to resell it at the end of the lease term, the district court relied in substantial part on two brief passages from the Act’s legislative history, holding that RSD was not acting as a “consumer” when it purchased the trucks at issue. We are not so sure. Faced with a statutory text amenable to multiple plausible interpretations, and with little in the way of Vermont authority to guide us, we are unable to confidently predict how the Vermont Supreme Court would decide the matter. We therefore CERTIFY the question to that court.

MICHAEL F. HANLEY (Paul J. Perkins, on the brief), Plante & Hanley, P.C., White River Junction, VT, for Plaintiff- Appellant.

JEFFREY S. PATTERSON, Hartline Barger LLP, Dallas, TX (Angela S. Gordon, Jacob L. Ramsey, Luke C. Spencer, Hartline Barger LLP, Dallas, TX; Richard J. Windish, Doreen F. Connor, Primmer Piper Eggleston & Cramer PC, Woodstock, VT; on the brief), for Defendants-Appellees.

GERARD E. LYNCH, Circuit Judge:

Plaintiff-Appellant RSD Leasing Inc. (“RSD”), a company that leases trucks to other commercial entities intending to resell them at the end of the lease term,

2 appeals from a judgment of the District Court for the District of Vermont (Geoffrey W. Crawford, Ch. J.) granting summary judgment to Defendants- Appellees Navistar International Corp. and Navistar, Inc. (together, “Navistar”), the manufacturer of 40 trucks that RSD purchased for its fleet from a non-party dealer. Although RSD initially pled several claims, the parties have narrowed their dispute on appeal to a single claim under the Vermont Consumer Protection Act (the “VCPA” or the “Act”).

In fact, only one aspect of that claim is before us: whether RSD qualifies as a “consumer” under the VCPA. The VCPA, which protects individuals and businesses alike so long as they satisfy the definition of “consumer,” defines that key term in relevant part as “a person who purchases . . . goods or services not for resale in the ordinary course of the person’s trade or business but for the use or benefit of the person’s business or in connection with the operation of the person’s business.” 9 V.S.A. § 2451a(1). As an initial matter, several ter