Case 1:05-md-01720-MKB-VMS Document 8605 Filed 06/28/21 Page 1 of 32 PageID #:
`480456
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`MEMORANDUM & ORDER
`05-MD-1720 (MKB)
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`-------------------------------------------------------------
`BARRY’S CUT RATE STORES INC.; DDMB,
`INC. d/b/a EMPORIUM ARCADE BAR; DDMB
`2, LLC d/b/a EMPORIUM LOGAN SQUARE;
`BOSS DENTAL CARE; RUNCENTRAL, LLC;
`CMP CONSULTING SERV., INC.; TOWN
`KITCHEN, LLC d/b/a TOWN KITCHEN &
`BAR; GENERIC DEPOT 3, INC. d/b/a
`PRESCRIPTION DEPOT; and PUREONE, LLC
`d/b/a SALON PURE,
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` Plaintiffs,
`
` v.
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`VISA, INC.; MASTERCARD
`INCORPORATED; MASTERCARD
`INTERNATIONAL INCORPORATED; BANK
`OF AMERICA, N.A.; BA MERCHANT
`SERVICES LLC (f/k/a DEFENDANT
`NATIONAL PROCESSING, INC.); BANK OF
`AMERICA CORPORATION; BARCLAYS
`BANK PLC; BARCLAYS BANK DELAWARE;
`BARCLAYS FINANCIAL CORP.; CAPITAL
`ONE BANK, (USA), N.A.; CAPITAL ONE
`F.S.B.; CAPITAL ONE FINANCIAL
`CORPORATION; CHASE BANK USA, N.A.;
`CHASE MANHATTAN BANK USA, N.A.;
`CHASE PAYMENTECH SOLUTIONS, LLC;
`JPMORGAN CHASE BANK, N.A.; JPMORGAN
`CHASE & CO.; CITIBANK (SOUTH
`DAKOTA), N.A.; CITIBANK N.A.;
`CITIGROUP, INC.; CITICORP; and WELLS
`FARGO & COMPANY,
`
` Defendants.
`
`
`--------------------------------------------------------------
`MARGO K. BRODIE, United States District Judge:
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`

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`Case 1:05-md-01720-MKB-VMS Document 8605 Filed 06/28/21 Page 2 of 32 PageID #:
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`On May 4, 2021, the putative Rule 23(b)(2) injunctive relief class plaintiffs (“Plaintiffs”
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`or “Rule 23(b)(2) Class Plaintiffs”)1 filed their fully briefed motion for certification of a Rule
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`23(b)(2) class in this multi-district litigation (“MDL”). (Pls.’ Mot. for Class Certification,
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`Docket Entry No. 8444.) The National Retail Federation (the “NRF”) and the Retail Industry
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`Leaders Association (the “RILA”) (together, the “Merchant Trade Groups”) and Walmart, Inc.,
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`(collectively, the “Proposed Intervenors”), move to intervene pursuant to Rule 24 of the Federal
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`Rules of Civil Procedure for the limited purpose of opposing the Plaintiffs’ motion for class
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`certification. (Walmart, Inc. Mot. to Intervene (“Walmart Mot.”), Docket Entry No. 8463;
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`Walmart, Inc. Mem. in Supp. of Walmart Mot. (“Walmart Mem.”), Docket Entry No. 8464;
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`Merchant Trade Groups Mot. to Intervene (“Merchant Trade Groups Mot.”), Docket Entry No.
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`8466; Merchant Trade Groups Mem. in Supp. of Merchant Trade Groups Mot. (“Merchant Trade
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`Groups Mem.”), Docket Entry No. 8467.)
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`For the reasons set forth below, the Court grants the motions for permissive intervention.
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`I. Background
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`The Court assumes familiarity with the facts and extensive procedural history as set forth
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`in its prior decisions. See In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig.,
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`No. 05-MD-1720, 2019 WL 6875472 (E.D.N.Y. Dec. 16, 2019); In re Payment Card
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`Interchange Fee & Merch. Disc. Antitrust Litig., No. 05-MD-1720, 2019 WL 6888488,
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`(E.D.N.Y. Dec. 16, 2019); Barry’s Cut Rate Stores Inc. v. Visa, Inc., No. 05-MD-1720, 2019 WL
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`1 Documents and filings refer to the Rule 23(b)(2) action in a variety of ways. In the
`MDL, the Rule 23(b)(2) action is proceeding as Barry’s Cut Rate Stores Inc. v. Visa, Inc., No.
`05-MD-1720. In addition, the action is sometimes referred to as “Barry’s” and the class is
`sometimes referred to as the “equitable relief class.” For the purposes of consistency across
`opinions, the Court uses the terms “Rule 23(b)(2)” and “injunctive relief” to refer to the action,
`as opposed to “Barry’s” and “equitable relief.”
`2
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`7584728 (E.D.N.Y. Nov. 20, 2019). The Court therefore provides only a summary of the
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`relevant facts and procedural history.
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`a. Plaintiffs’ class certification motion
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`On May 4, 2021, Plaintiffs filed their fully briefed motion for certification of a Rule
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`23(b)(2) class in this multi-district litigation. (Pls.’ Mot. for Class Certification; Pls.’ Mem. in
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`Supp. of Pls.’ Mot. for Class Certification (“Pls.’ Mem.”), Docket Entry No. 8446.) Plaintiffs
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`seek certification of a Rule 23(b)(2) class defined as:
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`All persons, businesses, and other entities (referred to [therein] as
`“Merchants”) that accept Visa and/or Mastercard Credit and/or
`Debit cards in the United States at any time during the period
`between December 18, 2020 and [eight] years after the date of entry
`of Final Judgment in this case.
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`(Pls.’ Mem. 5.) Plaintiffs request that the Court certify the class without permitting any opt-out
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`rights. (Id. at 6.)
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`The Direct Action Plaintiffs2 oppose certification of a mandatory class, arguing that
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`certifying a mandatory class would “threaten the individualized monetary claims of class
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`members” who are pursuing damages claims should the injunctive relief class lose on liability
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`issues, and would “confiscate” claims for injunctive relief and “turn them over to parties with
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`different interests.” (Direct Action Pls.’ Opp’n to Pls.’ Mot. for Class Certification (“Direct
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`Action Pls.’ Class Certification Opp’n”) 1–2, Docket Entry No. 8450.) The Direct Action
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`Plaintiffs further argue that Plaintiffs will “seek to place the commercial agreements of large
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`2 For purposes of this Memorandum and Order, “Direct Action Plaintiffs” collectively
`refers to the Target Plaintiffs, the 7-Eleven Plaintiffs, and Home Depot. The Target Plaintiffs
`and 7-Eleven Plaintiffs in turn are comprised of many other merchants, as described in their
`respective complaints. (See Target Pls.’ Second Am. Compl., Docket Entry No. 7117; Sixth Am.
`Compl., 7-Eleven, Inc., v. Visa Inc., No. 13-CV-5746 (E.D.N.Y. Apr. 30, 2020), Docket Entry
`No. 183; see also Decl. of Jeffrey I. Shinder in Supp. of Direct Action Pls.’ Class Certification
`Opp’n ¶ 3, Docket Entry No. 8451 (listing the Direct Action Plaintiffs).)
`3
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`merchants (like the Direct Action Plaintiffs) with Defendants under ongoing scrutiny by the
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`Court” which is adverse to the interests of large merchants. (Id. at 2.) The Direct Action
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`Plaintiffs argue that the Court should provide an opt-out right should an injunctive relief class be
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`certified. (Id. at 3.) The Grubhub Plaintiffs,3 who opted out of the Rule 23(b)(3) settlement, also
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`oppose certification of a mandatory class, arguing that certification of a mandatory class would
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`hold them to the “same restrictions imposed on the entities that voluntarily accepted the Rule
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`23(b)(3) monetary settlement and its limitations on their right to seek injunctive relief.”
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`(Grubhub Pls.’ Mem. in Opp’n to Pls.’ Mot. for Class Certification (“Grubhub Pls.’ Class
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`Certification Opp’n”) 1–2, Docket Entry No. 8453.) In addition, the Grubhub Plaintiffs argue
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`that the differences between the large companies that make up the Grubhub Plaintiffs and the
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`“small, single-location businesses that pay only a fraction of the interchange fees paid by the
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`Grubhub Plaintiffs” which make up both the class representatives and the vast majority of the
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`putative class give rise to different interests and therefore different remedies and relief. (Id.)
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`Defendants do not oppose class certification as Plaintiffs define it but argue that the Court
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`“should not certify the Rule 23(b)(2) class and allow opt-outs or carve outs from the class, or
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`exclude the future merchants from the class as the opponents of class certification . . . suggest.”
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`(Defs.’ Reply Mem. to Opp’n to Pls.’ Mot. for Class Certification (“Defs.’ Class Certification
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`Opp’n Reply”) 1, Docket Entry No. 8460.)
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`b. Merchant Trade Groups’ involvement in the litigation
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`The Merchant Trade Groups state that they are nonprofit associations that have merchant
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`members that “account for over $1.5 trillion in annual retail sales, millions of American jobs, and
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`3 “Grubhub Plaintiffs” refers to the seven companies described in the Grubhub Plaintiffs’
`operative Complaint. (See Grubhub Pls.’ Am. Compl. ¶ 1, Docket Entry No. 7906.)
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`more than 100,000 store locations nationwide.” (Merchant Trade Groups Mem. 1.) The
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`Merchant Trade Groups are putative class members because they “accept Visa and Mastercard
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`branded cards as payment for a wide range of services, such as payment for membership dues,
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`conference registrations, and a wide variety of other services that they provide.” (Id.)
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`In 2013, the Merchant Trade Groups were among the objectors and opt-outs to the
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`settlement for an injunctive relief class and a monetary damages relief class (the “2013
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`Settlement Agreement”),4 which the Second Circuit vacated on June 30, 2016, and remanded to
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`this Court. See In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 986 F.
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`Supp. 2d 207, 213, 223 (E.D.N.Y. 2013) (“Interchange Fees I”), rev’d and vacated, 827 F.3d
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`223 (2d Cir. 2016) (“Interchange Fees II”). In 2014, the Merchant Trade Groups submitted one
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`of the merchant briefs opposing the 2013 Settlement Agreement to the Second Circuit. (See
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`Merchant Trade Groups Appellate Br., annexed to Greenberger Decl. as Ex. 4, Docket Entry No.
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`8468-4.)
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`After the Second Circuit’s decision in 2016, the Merchant Trade Groups requested that
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`the Court reconsider class representation and instead appoint independent counsel “who are
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`willing to reconsider, and, as appropriate, deviate from[] prior counsel’s (conflicted) decisions
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`about prospective relief — such as the decision to seek certification of a mandatory (b)(2) class
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`and the decision to focus on meaningless surcharging relief.” (Merchant Trade Groups Mem. in
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`Supp. Appointment of Kirby/Goldstein 1–2, annexed to Greenberger Decl. as Ex. 5, Docket
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`Entry No. 8468-5.)
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`4 (See RILA Obj. to 2013 Settlement Agreement, annexed to Decl. of Debra L.
`Greenberger in Supp. Merchant Trade Groups Mot. (“Greenberger Decl.”) as Ex. 2, Docket
`Entry No. 8468-2; NRF Obj. to 2013 Settlement Agreement, annexed to Greenberger Decl. as
`Ex. 3, Docket Entry No. 8468-3.)
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`In December of 2019, the Court granted the motion for final approval of the settlement
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`reached between Defendants and the Rule 23(b)(3) class (the “2019 Settlement Agreement”).
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`See In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 2019 WL 6875472, at
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`*2. The Merchant Trade Groups were among the 675 class members that opted out from the
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`2019 Settlement Agreement. (See Report of Exclusion Requests, annexed to Letter from Rule
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`23(b)(3) Class dated Nov. 26, 2019 as Ex. 1, Docket Entry No. 7796-2.) The Merchant Trade
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`Groups are not pursuing any individual claims against Defendants. (Merchant Trade Groups
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`Mem. 5.)
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`On March 26, 2021, the Merchant Trade Groups served their motion to intervene for the
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`limited purpose of opposing the Rule 23(b)(2) Plaintiffs’ motion for class certification, and the
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`motion was fully briefed on May 4, 2021. (See Merchant Trade Groups Mot.) The Merchant
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`Trade Groups state that beginning in mid-2017, “counsel and representatives from the Merchant
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`Trade Groups began discussions with appointed [Rule 23(b)(2) Class] Counsel, who Merchant
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`Trade Groups understood were appointed to represent all merchants in the class,” to “share
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`privileged information with their putative appointed counsel about their views regarding the
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`appropriate certification of any Rule 23(b)(2) class and what equitable relief would be
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`meaningful to the broad merchant community.” (Merchant Trade Groups Mem. 5.) Member
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`retail representatives from the Merchant Trade Groups held “multiple in-person meetings” with
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`Rule 23(b)(2) Class Counsel5 until April of 2019. (Id.) While the parties “contemplated another
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`meeting in the summer of 2019,” Merchant Trade Groups state that counsel for the Rule 23(b)(2)
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`Class Plaintiffs stopped responding to Merchant Trade Groups’ emails, calls, letters, and
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`5 “Rule 23(b)(2) Class Counsel” refers to interim class counsel appointed for the putative
`Rule 23(b)(2) class. (See Mem. and Order dated Nov. 30, 2016, Docket Entry No. 6754.)
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`voicemails. (Id. at 5–6.) Merchant Trade Groups state that counsel for the Rule 23(b)(2) Class
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`Plaintiffs are “uninterested in scheduling a further meeting” and that the two groups have not
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`held any further meetings or discussions since April of 2019. (Id. at 6.) While the Merchant
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`Trade Groups seek to represent their own interests, they state that “[their] interests are informed
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`by their in-depth knowledge of the broader merchant community that constitutes Merchant Trade
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`Groups’ memberships.” (Id. at 1.)
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`In support of their motion to intervene, the Merchant Trade Groups argue that the Rule
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`23(b)(2) Class Plaintiffs do not adequately represent them because the Merchant Trade Groups
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`“believe that Defendants’ core anticompetitive practices must be eliminated — not tinkered with
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`on the margins — and that every merchant . . . must be permitted to determine whether to . . .
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`exclude itself from the class.” (Id. at 12.) In addition, the Merchant Trade Groups argue that the
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`Rule 23(b)(2) Class Plaintiffs are focused on surcharging relief instead of removing the honor-
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`all-cards and default interchange rules. (Id.)
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`Plaintiffs oppose the Merchant Trade Groups’ motion. (See Pls.’ Omnibus Mem. in
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`Opp’n (“Pls.’ Opp’n”), Docket Entry No. 8470.)
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`c. Walmart’s involvement in the litigation
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`Walmart is a “major retailer and a significant participant in the U.S. credit and debit card
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`markets.” (Walmart Mem. 1.) Walmart states that it has “long been active in lobbying efforts to
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`reform the payments industry, and in particular the anticompetitive practices of Defendants.”
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`(Id. at 4.)
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`In 2013, Walmart opted out and objected to the 2013 Settlement Agreement. (Walmart
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`Obj. to 2013 Settlement Agreement, Docket Entry No. 2644; Report of Exclusion Requests 93,
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`annexed to Third Report of the Class Administrator as Ex. B, Docket Entry No. 6154-2.) In
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`2013, Visa “filed a declaratory judgment action against Walmart in this MDL” and in 2014,
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`Walmart brought its own antitrust action against Visa, arguing that Visa employed
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`anticompetitive practices such as the honor-all-cards rule to “acquire and maintain the market
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`power necessary to charge Walmart supracompetitive fees.” (Walmart Mem. 2–3; Compl., Visa
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`U.S.A. v. Wal-Mart Stores, Inc., No. 13-CV-3355 (E.D.N.Y. June 12, 2013), Docket Entry No. 1;
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`Compl. ¶¶ 11, 44, 74, Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., No. 14-CV-2318 (E.D.N.Y. Mar.
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`25, 2014), Docket Entry No. 1.) On November 3, 2017, Walmart and Visa fully settled all
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`claims against each other and dismissed both cases. (See Walmart Stipulation and Order of
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`Dismissal, Docket Entry No. 7120; Visa Stipulation and Order of Dismissal, Docket Entry No.
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`7121.) Walmart states that since dismissing its case against Visa, it has “remained engaged with
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`this litigation in order to protect its interests” and attended a meeting on April 9, 2019, with other
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`plaintiffs’ counsel, including the Rule 23(b)(2) Class Counsel to discuss case strategy. (Walmart
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`Mem. 3 n.6.) Walmart states that it “opted[] out of a subsequent proposed settlement for a Rule
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`23(b)(3) class.” (Id. at 3 n.5.)
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`On March 26, 2021, Walmart filed the instant motion to intervene for the limited purpose
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`of opposing the Rule 23(b)(2) Plaintiffs’ motion for class certification, which was fully briefed
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`on May 4, 2021. (Walmart Mot.) Walmart contends that the Rule 23(b)(2) Class Plaintiffs will
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`“undermine Walmart’s interests if a mandatory class is certified” and therefore Walmart must
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`intervene. (Walmart Mem. 2.) In support, Walmart argues that the Rule 23(b)(2) Class Plaintiffs
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`do not represent Walmart’s interests because Plaintiffs “can be expected to pursue relief that is at
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`best worthless, and more likely harmful, to Walmart, and to enter into a settlement that permits
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`Defendants to continue their anticompetitive conduct and releases claims far into the future.”
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`(Id. at 3.) Walmart argues that it should not be “saddled with an injunction that justifies
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`Defendants in refusing to negotiate different arrangements, waive network rules, or agree to
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`different interchange rates with larger and smaller merchants.” (Id. at 3–4.) Walmart requests
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`access to materials designated confidential and highly confidential by the protective order and
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`seek an opportunity to supplement its objection based on those materials.6 (Id. at 8 n.10.)
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`The Rule 23(b)(2) Plaintiffs oppose Walmart’s motion. (See Pls.’ Opp’n.)
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`II. Discussion
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`a. Standard of review
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`Rule 24(a) of the Federal Rules of Civil Procedure allows intervention as of right under
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`certain circumstances. It provides in pertinent part that “[o]n timely motion, the court must
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`permit anyone to intervene who . . . claims an interest relating to the property or transaction that
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`is the subject of the action, and is so situated that disposing of the action may as a practical
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`matter impair or impede the movant’s ability to protect its interest, unless existing parties
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`adequately represent that interest.” Fed. R. Civ. P. 24(a)(2); see also Penn-Star Ins. Co. v.
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`McElhatton, 818 F. App’x 67, 70 (2d Cir. 2020) (quoting Fed. R. Civ. P. 24(a)); Bridgeport
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`Guardians, Inc. v. Delmonte, 602 F.3d 469, 473 (2d Cir. 2010) (same). To establish intervention
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`as of right pursuant to Rule 24(a)(2), an intervenor must show that “(1) the motion is timely;
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`(2) the applicant asserts an interest relating to the property or transaction that is the subject of the
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`action; (3) the applicant is so situated that without intervention, disposition of the action may, as
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`a practical matter, impair or impede the applicant’s ability to protect its interest; and (4) the
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`6 The Merchant Trade Groups join in Walmart’s request regarding access to confidential
`materials and supplemental briefing. (See Letter dated Apr. 5, Docket Entry No. 8423.)
`Plaintiffs state in their briefing that they did not provide access to documents covered by the
`protective order because Proposed Intervenors were not parties to the litigation, but should the
`Court grant Proposed Intervenors’ motions, it will “immediately provide access to materials
`marked ‘highly confidential.’” (See Pls.’ Opp’n 10 n.6.)
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`applicant’s interest is not adequately represented by the other parties.” XL Specialties Ins. Co. v.
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`Lakian, 632 F. App’x 667, 669 (2d Cir. 2015) (quoting MasterCard Int’l Inc. v. Visa Int’l Serv.
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`Ass’n, Inc., 471 F.3d 377, 389 (2d Cir. 2006)); see also CWCapital Cobalt Vr Ltd. v. U.S. Bank
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`Nat’l Ass’n, 790 F. App’x 260, 262 (2d Cir. 2019) (quoting MasterCard Int’l Inc., 471 F.3d at
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`389). “The ‘[f]ailure to satisfy any one of these [four] requirements is a sufficient ground to
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`deny the application.’” Penn-Star Ins. Co., 818 F. App’x at 70 (alterations in original) (emphasis
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`omitted) (quoting R Best Produce, Inc. v. Shulman-Rabin Mktg. Corp., 467 F.3d 238, 241 (2d
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`Cir. 2006)); Harris-Clemons v. Charly Trademarks Ltd., 751 F. App’x 83, 85 (2d Cir. 2018) (“If
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`the party fails to satisfy any one of the factors, the application for intervention must be denied.”
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`(citing Catanzano by Catanzano v. Wing, 103 F.3d 223, 232 (2d Cir. 1996))).
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`Rule 24(b) of the Federal Rules of Civil Procedure allows a court to exercise its
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`discretion and permit intervention under certain circumstances. It provides in pertinent part that
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`“[o]n timely motion, the court may permit anyone to intervene who . . . has a claim or defense
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`that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B);
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`see also Penn-Star Ins. Co., 818 F. App’x at 70 (quoting Fed. R. Civ. P. 24(b)); Griffin v.
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`Sheeran, 767 F. App’x 129, 133 (2d Cir. 2019) (same). “‘In exercising its discretion, the court
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`must consider ‘whether the intervention will unduly delay or prejudice the adjudication of the
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`rights of the original parties,’ . . . the nature and extent of the intervenors’ interests, the degree to
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`which those interests are adequately represented by other parties, and whether parties seeking
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`intervention will significantly contribute to full development of the underlying factual issues in
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`the suit and to the just and equitable adjudication of the legal questions presented.” Citizens
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`Against Casino Gambling in Erie Cnty. v. Hogen, 417 F. App’x 49, 50 (2d Cir. 2011) (quoting
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`H.L. Hayden Co. of N.Y., Inc. v. Siemens Med. Sys., Inc., 797 F.2d 85, 89 (2d Cir. 1986)).
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`Permissive intervention is wholly within the court’s discretion. See Penn-Star Ins. Co., 818 F.
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`App’x at 70 (“Rule 24(b) . . . provides for permissive intervention, at the discretion of the court
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`. . . .”); St. John’s Univ., N.Y. v. Bolton, 450 F. App’x 81, 84 (2d Cir. 2011) (“A district court has
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`broad discretion under Rule 24(b) to determine whether to permit intervention . . . .”).
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`
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`b.
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`In weighing the relevant factors, the Court determines that Proposed
`Intervenors are not entitled to intervene as of right
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`i. Timeliness
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`Proposed Intervenors argue that their motion is timely because (1) no injunctive relief
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`class has yet been certified and they filed their motions by the Court-ordered deadline for
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`opposition to the Rule 23(b)(2) Plaintiffs’ motion for class certification, (see Merchant Trade
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`Groups Mem. 7; Walmart Mem. 7), (2) intervention will not prejudice the parties because the
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`motions will not delay the proceedings and the Court’s consideration of the propriety of an
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`injunctive relief class just begun, (Merchant Trade Groups Mem. 8; Walmart Mem. 7), and
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`(3) denying the intervention motion will prejudice Walmart by “inviting a significant threat to its
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`interests,” (Walmart Mem. 7), and the Merchant Trade Groups because certification of a
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`mandatory class would “force them to give up claims through final judgment or settlement”
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`resulting in “substantial[] harm[] by a class action judgment in which they were not adequately
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`represented . . . and had no opportunity to make sure their voice is heard,” (Merchant Trade
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`Groups Mem. 8).
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`Plaintiffs argue that Proposed Intervenors’ motions are not timely because they did not
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`seek to intervene until after the motion for class certification was served on December 18, 2020,
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`and the motion is now fully briefed. (Pls.’ Opp’n 5.) In response to the Merchant Trade Groups’
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`citation to a Third Circuit case stating that there is a “presumption of timeliness” if a motion to
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`intervene is filed before a class is certified, Plaintiffs argue that such a presumption has not been
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`adopted by the Second Circuit. (Id. at 5 n.2 (discussing Wallach v. Eaton Corp., 837 F.3d 356
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`(3d Cir. 2016)).)
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`In assessing whether a motion to intervene is timely, the Court considers “(1) how long
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`the applicant had notice of the interest before it made the motion to intervene; (2) prejudice to
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`existing parties resulting from any delay; (3) prejudice to the applicant if the motion is denied;
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`and (4) any unusual circumstances militating for or against a finding of timeliness.” Frankel v.
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`Cole, 490 F. App’x 407, 408 (2d Cir. 2013) (quoting United States v. Pitney Bowes, Inc., 25 F.3d
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`66, 70 (2d Cir. 1994)). “The timeliness requirement is flexible and the decision is one entrusted
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`to the district judge’s sound discretion.” Penn-Star Ins. Co., 818 F. App’x at 70 (quoting United
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`States v. Yonkers Bd. of Educ., 801 F.2d 593, 594–95 (2d Cir. 1986)); see also CWCapital
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`Cobalt Vr Ltd., 790 F. App’x at 263 (“We have ruled that a timeliness analysis in the
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`intervention context should take the form of a balancing exercise, and we vest substantial
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`discretion in the district court that is conducting that exercise . . . .” (quoting Floyd v. City of New
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`York, 770 F.3d 1051, 1058 (2d Cir. 2014))).
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`Proposed Intervenors’ motions are timely.7 First, Proposed Intervenors received notice
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`that they were included in the putative class when Plaintiffs moved for class certification which
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`motion was served on December 18, 2020, and filed on May 4, 2021. See Doe #1 by Parent #1
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`v. N.Y.C. Dep’t of Educ., No. 16-CV-1684, 2018 WL 3637962, at *7 (E.D.N.Y. July 31, 2018)
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`(finding that the proposed intervenors who sought to intervene for the limited purpose of
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`objecting to a proposed settlement had notice of their interest when the settlement became public
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`because the proposed intervenors sought “to intervene only to object to the terms of the proposed
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`7 Because the Court finds that the motions are timely, the Court does not address whether
`there is a presumption of timeliness.
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`settlement, not to participate in the litigation generally”). Proposed Intervenors moved to
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`intervene for the limited purpose of opposing Plaintiffs’ motion for class certification on March
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`26, 2021, (see Merchant Trade Groups Mot.; Walmart Mot.) — a little over three months after
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`Plaintiffs first moved for class certification on December 18, 2020, but before the motion was
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`fully briefed on May 4, 2021. See In re Snap Inc. Sec. Litig., 334 F.R.D. 209, 215 (C.D. Cal.
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`2019) (assessing timeliness of a motion to intervene to oppose class certification relative to when
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`the motion for class certification was filed). In addition, Proposed Intervenors filed their motions
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`by the Court-ordered deadline for opposition to class certification. (See Order dated Nov. 18,
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`2020 (setting the deadline for class certification opposition as March 26, 2021).) Accordingly,
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`the three-month period between Plaintiffs’ motion for class certification and Proposed
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`Intervenors’ motions do not render them untimely. See Neversink Gen. Store v. Mowi USA, LLC,
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`No. 20-CV-9293, 2021 WL 1930320, at *3 n.2 (S.D.N.Y. May 13, 2021) (“Intervenors’ motion,
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`filed about four months after [the plaintiff] commenced this action and within weeks of the
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`proposed class settlement, is not untimely.”); In re Snap Inc. Sec. Litig., 334 F.R.D. at 215
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`(finding that moving to intervene three weeks after a motion for class certification was filed was
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`timely).
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`The second and third factors, on balance, also support a finding of timeliness. While
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`Proposed Intervenors’ three-month delay in filing their motions may result in some prejudice to
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`Plaintiffs, that prejudice does not weigh heavily against a finding of timeliness. Intervention will
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`delay the resolution of the class certification motions to some degree because Proposed
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`Intervenors request an opportunity to supplement their briefing should their motions to intervene
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`be granted. See Molinari v. Bloomberg, No. 08-CV-4539, 2009 WL 87576, at *4 (E.D.N.Y. Jan.
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`13, 2009) (finding that allowing intervention would result in undue delay to the proceedings and
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`stating that “allowing the [a]pplicant to intervene in this matter, which might well necessitate
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`additional briefing and discovery, would undoubtedly delay my decision on the merits”); cf.
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`Dorchester Fin. Holdings Corp. v. Banco BRJ, S.A., No. 11-CV-1529, 2016 WL 845333, at *2
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`(S.D.N.Y. Mar. 2, 2016) (finding no prejudice when intervention “should necessitate minimal
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`discovery or additional briefing” and will not delay adjudication of the pending motions while
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`waiting for any briefing). However, for the reasons stated below with respect to impairment,
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`Proposed Intervenors, on the other hand, may suffer prejudice if their motion to intervene is
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`denied. See Ball v. Kasich, No. 16-CV-282, 2017 WL 3172778, at *9 (S.D. Ohio July 25, 2017)
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`(finding that proposed intervenors may intervene because Rule 23(b)(2) “provides neither notice
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`nor the ability for class members to opt-out”). The slight prejudice to the existing parties does
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`not outweigh the potential prejudice to Proposed Intervenors should their motions be denied. See
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`Ass’n of Conn. Lobbyists LLC v. Garfield, 241 F.R.D. 100, 102–03 (D. Conn. 2007) (stating that
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`while “[a]dditional parties always take additional time which may result in delay, this does not
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`mean that intervention should be denied” and finding that intervention will not prejudice the
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`parties and that “additional briefing and argument will only help to facilitate a speedy, fair and
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`accurate resolution of the case”); see also 3 Newberg on Class Actions § 9:31 (5th ed.) (“Courts
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`will generally assess only the prejudice to existing parties that derives from the timing of the
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`application for intervention as the prejudice caused by intervention itself is irrelevant to the
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`timeliness inquiry.”).
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`The fourth factor — whether there are any unusual circumstances militating for or against
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`a finding of timeliness — is neutral as neither Plaintiffs nor Proposed Intervenors identify any
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`such circumstances, (see Merchant Trade Groups Mem.; Walmart Mem.; Pls.’ Opp’n), and the
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`Court is aware of none. See CWCapital Cobalt Vr Ltd., 790 F. App’x at 264 (holding that the
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`“unusual circumstance” factor “lends no further persuasive weight to [the proposed intervenor’s]
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`position” when there were no unusual circumstances identified); Rudolph v. Hudsons Bay Co.,
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`No. 18-CV-8472, 2019 WL 1416986, at *3 (S.D.N.Y. Mar. 29, 2019) (“The proposed
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`intervenors have not identified unusual circumstances to be weighed in a timeliness
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`analysis . . . .”).
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`Accordingly, because two of the three factors weigh in Proposed Intervenors’ favor and
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`the fourth factor is neutral, the Court finds their motions to be timely.
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`ii. Proposed Intervenors’ interest and impairment
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`Merchant Trade Groups argue that they have an interest in the proceedings because they
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`would be included in the putative class and therefore certification of the class would “impede . . .
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`their own interests as well as those of the merchant community more broadly.” (Merchant Trade
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`Groups Mem. 9.) In support, the Merchant Trade Groups contend that intervention as of right is
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`“meant to be available to absent putative class members whose rights and remedies may be
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`affected by the outcome of a class action.” (Id. at 10.) Walmart argues that it has two interests:
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`(1) an interest in “eliminating anticompetitive conduct that can cause it injury, and in particular it
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`has an interest in rolling-back Defendants’ [honor-all-cards] rules,” and (2) in “negotiating with
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`Defendants and using influence it has as a large merchant to try and secure the terms that most
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`benefit Walmart and its customers.” (Walmart Mem. 7–8.)
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`Plaintiffs do not dispute that Proposed Intervenors have an interest “relating to the subject
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`of the action.” (Pls.’ Opp’n 4.) Plaintiffs argue that intervention is not necessary to protect the
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`Proposed Intervenors’ interests because they “offer nothing new or original in their motions” and
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`“seek intervention for the limited purpose of echoing the arguments made by the Direct Action
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`Plaintiffs” regarding opt-out rights. (Id. at 5–6.) In addition, Plaintiffs argue that Walmart
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`settled its case against the