Case 1:05-md-01720-MKB-VMS Document 8647 Filed 09/27/21 Page 1 of 122 PageID #:
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`MEMORANDUM & ORDER
`05-MD-1720 (MKB)
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`-------------------------------------------------------------
`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.; GENERIC DEPOT 3, INC. d/b/a
`PRESCRIPTION DEPOT; and PUREONE, LLC
`d/b/a SALON PURE,
`
` Plaintiffs,
`
` v.
`
`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:
`
`I.
`
`Background ......................................................................................................................... 5
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`a. Prior settlement approval and class certification ................................................................ 5
`b. The Second Circuit’s reversal ............................................................................................. 7
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`

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`c. Relevant subsequent proceedings ....................................................................................... 9
`d. Class Plaintiffs’ allegations............................................................................................... 10
`e. Rule 23(b)(2) Plaintiffs’ motion for class certification..................................................... 12
`f. Opposition to Plaintiffs’ motion for class certification..................................................... 13
`i. Direct Action Plaintiffs’ opposition .............................................................................. 13
`ii. Grubhub Plaintiffs’ opposition ..................................................................................... 14
`iii.
`Intervenors’ opposition ............................................................................................... 14
`iv. Defendants’ position ..................................................................................................... 15
`Discussion ......................................................................................................................... 16
`
`II.
`
`a. Standard of review ............................................................................................................ 16
`b. Sequence of deciding the pending motions ...................................................................... 17
`c. Rule 23(a) requirements .................................................................................................... 25
`i. Numerosity .................................................................................................................... 25
`ii. Commonality................................................................................................................. 26
`iii.
`Typicality .................................................................................................................... 35
`iv. Adequate representation................................................................................................ 38
`1.
`Adequacy of class representatives .......................................................................... 42
`The named Rule 23(b)(2) Class Plaintiffs suffer the same injury as the putative
`A.
`class members and have an interest in vigorous pursuit of the claims ......................... 44
`B.
`The type of relief sought by Plaintiffs is not antagonistic to the putative class
`members ........................................................................................................................ 46
`C.
`The risk of claim and issue preclusion does not create a fundamental conflict
`between class representatives and putative class members .......................................... 57
`D. Class representatives do not improperly confiscate Opponents’ injunctive relief
`claims or jeopardize any individual damages claims .................................................... 73
`E.
`The Court declines to reach the issue of whether future merchants are adequately
`represented by the class representatives ....................................................................... 79
`F.
`Class representatives DDMB and DDMB2 are conflicted due to their
`relationship with class counsel...................................................................................... 84
`Adequacy of counsel ............................................................................................... 88
`2.
`v. Ascertainability ............................................................................................................. 91
`d. Rule 23(b)(2) requirements ............................................................................................... 99
`i.
`The Court declines to impose a cohesiveness requirement ........................................ 103
`ii. The class meets the requirements of Rule 23(b)(2) .................................................... 107
`e. The Court declines to grant opt-out rights ...................................................................... 113
`
`2
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`

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`f. Appointment of class counsel ......................................................................................... 121
`III.
`Conclusion ...................................................................................................................... 122
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`A putative Rule 23(b)(2) class of millions of merchants commenced this antitrust action
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`under the Clayton Act, 15 U.S.C. § 16, to prevent and restrain violations of the Sherman Act, 15
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`U.S.C. §§ 1 and 2, and the California Cartwright Act, Cal. Bus. & Prof. Code § 16700 et seq.,
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`seeking equitable relief against Defendants Visa, Inc. (“Visa”) and Mastercard1 networks
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`(together, the “Network Defendants”), as well as various issuing and acquiring banks (“Bank
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`Defendants”).2 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 223
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`(2d Cir. 2016) (Interchange Fees II); (Equitable Relief Class Action Compl (“Compl.”)., Docket
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`Entry No. 6892.) Plaintiffs seek to represent a class of merchants that accept Visa- and
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`Mastercard-branded cards as forms of payment, and they allege that Defendants engage in
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`anticompetitive conduct that harms competition and imposes supracompetitive and collectively
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`fixed fees on the merchants. (Compl. ¶ 4.)
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`Currently before the Court is the putative Rule 23(b)(2) equitable relief class plaintiffs’
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`(“Plaintiffs” or “Rule 23(b)(2) Class Plaintiffs”)3 motion for class certification, seeking to certify
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`1 Defendants Mastercard Incorporated and Mastercard International Incorporated are
`collectively referred to as “Mastercard.”
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` 2
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` Defendants 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.;
`ChasePaymentech Solutions, LLC; JP Morgan Chase Bank, N.A.; JPMorgan Chase & Co.;
`Citibank (South Dakota), N.A.; Citibank N.A.; Citigroup, Inc.; Citicorp; and Wells Fargo &
`Company are collectively referred to as the “Bank Defendants.”
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` 3
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` Documents and filings refer to the Rule 23(b)(2) action in a variety of ways. In the
`multidistrict litigation (“MDL”), the Rule 23(b)(2) action has proceeded as Barry’s Cut Rate
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`3
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`a class under Rule 23(a) and Rule 23(b)(2) of the Federal Rules of Civil Procedure. (See Pls.’
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`Mot. for Class Certification (“Pls.’ Mot.”), Docket Entry No. 8444; Pls.’ Mem. in Supp. of Pls.’
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`Mot. (“Pls.’ Mem.”), Docket Entry No. 8447.) Direct Action Plaintiffs,4 Grubhub Plaintiffs,5
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`and Intervenors the Merchant Trade Groups and Walmart, Inc.6 oppose certification of a
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`mandatory class.7 Defendants do not oppose class certification but argue that the class should be
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`Stores Inc. v. Visa, Inc., No. 05-MD-1720. In addition, the action has sometimes been referred to
`as “Barry’s” and the class referred to as the “equitable relief class” or the “injunctive relief
`class.” Because the Rule 23(b)(2) Plaintiffs seek both declaratory and injunctive relief, and
`because Barry’s Cut Rate Stores Inc. is no longer a party to this action, the Court uses the terms
`“Rule 23(b)(2)” and “equitable relief” to refer to the action, as opposed to “Barry’s” and
`“injunctive relief” action.
`
` 4
`
` 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. 180; (see also Decl. of Jeffrey I. Shinder in Supp. of Direct Action Pls.’ Class
`Certification Opp’n (“Shinder Decl.”) ¶ 3, Docket Entry No. 8451 (listing the Direct Action
`Plaintiffs)).
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` 5
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` “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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` 6
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` On June 28, 2021, the Court granted Intervenors’ motion for permissive intervention
`pursuant to Rule 24 of the Federal Rules of Civil Procedure for the limited purpose of opposing
`the Rule 23(b)(2) Class Plaintiffs’ motion for class certification. (See Mem. and Order dated
`June 28, 2021, Docket Entry No. 8605.) “Merchant Trade Groups” refers to the National Retail
`Federation (the “NRF”) and the Retail Industry Leaders Association (the “RILA”). (See id. at 2.)
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` 7
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` (See Direct Action Pls.’ Mem. in Opp’n to Pls.’ Mot. (“Direct Action Pls.’ Opp’n”),
`Docket Entry No. 8450; Grubhub Pls.’ Mem. in Opp’n to Pls.’ Mot. (“Grubhub Pls.’ Opp’n”),
`Docket Entry No. 8454; Walmart’s Mem. in Opp’n to Pls.’ Mot. (“Walmart’s Opp’n”), Docket
`Entry No. 8465; Merchant Trade Groups Mem. in Opp’n to Pls.’ Mot. (“Merchant Trade Groups’
`Opp’n”), Docket Entry No. 8468-1.) The CenturyLink Plaintiffs, as described in their respective
`complaint, (see CenturyLink Pls.’ Second Am. Compl., Docket Entry No. 7874), join in the
`Direct Action Plaintiffs’ opposition to Plaintiffs’ motion, (see CenturyLink Pls.’ Notice of
`Joinder, Docket Entry No. 8475).
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`4
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`certified without opt-out rights. (See Defs.’ Reply to Class Certification Opp’n (“Defs.’ Reply”),
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`Docket Entry No. 8460.)
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`For the reasons set forth below, the Court grants Plaintiffs’ motion for class certification
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`in part and denies it in part.
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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 prior decisions. See Interchange Fees II, 827 F.3d at 223; In re Payment Card Interchange
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`Fee & Merch. Disc. Antitrust Litig. (Interchange Fees IV), No. 05-MD-1720, 2019 WL 6875472
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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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`7584728 (E.D.N.Y. Nov. 20, 2019); In re Payment Card Interchange Fee & Merch. Disc.
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`Antitrust Litig. (Interchange Fees III), 330 F.R.D. 11 (E.D.N.Y. 2019); Interchange Fees I, 986
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`F. Supp. 2d at 213; (see also Compl.). The Court therefore provides only a summary of the
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`relevant facts and procedural history.
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`a. Prior settlement approval and class certification
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`On November 27, 2012, Judge John Gleeson granted preliminary approval of a jointly
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`submitted class settlement agreement (the “2013 Settlement Agreement”). In re Payment Card
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`Interchange Fee & Merch. Disc. Antitrust Litig., No. 05-MD-1720, 2012 WL 12929536, at *1
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`(E.D.N.Y. Nov. 27, 2012). Judge Gleeson also provisionally certified two separate classes for
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`settlement purposes only: (1) a mandatory Rule 23(b)(2) settlement class seeking equitable relief,
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`from which class members could not opt out, and (2) a Rule 23(b)(3) class seeking damages,
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`from which class members could opt out.8 See id. at *1–2. After issuance of notice to the class
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`8 Under Rule 23, members of a class certified under Rule 23(b)(3) are afforded “opt-out”
`rights, or the right to exclude themselves from the class. Fed. R. Civ. P. 23(c)(2)(B)(v).
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`and an allotted period for putative class members to object to or opt out of the settlement, on
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`April 11, 2013, the parties moved for final approval of the settlement. (Notice of Mot. and Mot.
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`for Class Pls.’ Final Approval of Settlement, Docket Entry No. 2111.)
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`After holding a fairness hearing on September 12, 2013, Judge Gleeson granted final
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`approval of the 2013 Settlement Agreement on December 13, 2013.9 See Interchange Fees I,
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`986 F. Supp. 2d at 213, 240. Under the terms of the 2013 Settlement Agreement, the Defendants
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`agreed to pay a cash award of $7.25 billion, before reductions for opt-outs and other expenses, to
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`the Rule 23(b)(3) class members, and to implement reforms of the Defendants’ rules and
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`practices to settle the claims of the Rule 23(b)(2) class members.10 Id. at 213, 217.
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`9 To assist with his determination, Judge Gleeson appointed an economic and legal
`expert, Dr. Alan O. Sykes of New York University School of Law, to aid the court in weighing
`the settlement agreement and accompanying expert reports because “[t]he proponents of the
`settlement disagree[d] strongly with the objectors over the economic value of the proposed
`settlement to the class members, and specifically over the benefits of the proposed rules changes
`to the merchant class.” See Interchange Fees I, 986 F. Supp. 2d at 218. Dr. Sykes filed his
`written analysis with the court on August 28, 2013. (Report from Ct. Appointed Expert
`Professor Alan O. Sykes, Docket Entry No. 5965.)
`
`10 The reforms included, among other things, “Visa and MasterCard rule modifications
`to permit merchants to surcharge on Visa- or MasterCard-branded credit card transactions at both
`the brand and product levels”; “[a]n obligation on the part of Visa and MasterCard to negotiate
`interchange fees in good faith with merchant buying groups”; “[a]uthorization for merchants that
`operate multiple businesses under different ‘trade names’ or ‘banners’ to accept Visa and/or
`MasterCard at fewer than all of its businesses”; and “[t]he locking-in of the reforms in the
`Durbin Amendment [of the Dodd-Frank Wall Street Reform and Consumer Protection Act of
`2010] and the [United States Department of Justice (“DOJ”)] consent decree with Visa and
`MasterCard, even if those reforms are repealed or otherwise undone.” Interchange Fees I, 986
`F. Supp. 2d at 217. The Durbin Amendment “limited the interchange fee that issuing banks
`could charge for debit card purchases, and allowed merchants to discount debit card purchases
`relative to credit card purchases.” Interchange Fees II, 827 F.3d at 229. In the DOJ consent
`decree, “after an investigation assisted by the information developed by the [P]laintiffs,” and
`following lawsuits that the DOJ initiated against Visa, Mastercard, and American Express in
`2010, Interchange Fees I, 986 F. Supp. 2d at 215, “Visa and MasterCard agreed to remove their
`rules prohibiting merchants from product-level discounting of credit and debit cards,” id.; see
`also Interchange Fees II, 827 F.3d at 229 (“[P]ursuant to a consent decree with the Department
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`b. The Second Circuit’s reversal
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`On June 30, 2016, the Second Circuit vacated the settlement and remanded for further
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`proceedings. Interchange Fees II, 827 F.3d at 240. Objectors to the settlement and plaintiffs
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`that chose to opt out of the class prior to final approval argued on appeal that the “class action
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`was improperly certified and that the settlement was unreasonable and inadequate.” Id. at 227.
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`The Second Circuit agreed that the class was improperly certified and held that the class
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`certification requirement of adequate representation under Rule 23(a)(4) had not been satisfied.11
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`Id. The Court found that an inherent conflict of interest existed because a single set of counsel
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`represented both the (b)(2) and (b)(3) class interests. See id. at 233–35.
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`Because of the conflict, the Court concluded that “members of the (b)(2) class were
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`inadequately represented.” Id. at 231. Relying on Supreme Court precedent, the Second Circuit
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`held that settlement classes that consist of holders of present claims, such as the (b)(3) class
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`seeking monetary relief for past harm, and holders of future claims, such as the (b)(2) class
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`seeking injunctive relief to reform current and future rules and policies of the Defendants, must
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`be divided “into homogenous subclasses . . . with separate representation.” Id. at 234 (quoting
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`Ortiz v. Fibreboard Corp., 527 U.S. 815, 856 (1999)).
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`The Second Circuit also found that the issues stemming from unitary representation were
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`exacerbated by the inability of members of the (b)(2) class to opt out of the settlement or from
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`of Justice in 2011, Visa and Mastercard agreed to permit merchants to discount transactions to
`steer consumers away from credit cards use. None of these developments affected the honor-all-
`cards or no-surcharging rules, or the existence of a default interchange fee.”).
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`11 In particular, the Second Circuit found that unitary representation of the classes
`violated Rule 23(a)(4) — the class certification requirement that representative parties
`adequately protect the interests of the class — and the Due Process Clause, which requires that
`named plaintiffs in a class action adequately protect the interests of absent class members.
`Interchange Fees II, 827 F.3d at 228, 231.
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`their release of claims against Defendants. See id. at 231, 234; id. at 241 (Leval, J., concurring).
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`The Court expressed further concern that the injunctive relief secured for the (b)(2) class would
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`not apply uniformly to benefit all (b)(2) class members. See id. at 238. For example, the Court
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`noted that (b)(2) merchants that operated in certain states would be prohibited from surcharging
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`costs to customers at the point of sale, as permitted under the 2013 Settlement Agreement, while
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`merchants that operated in other states would not be prohibited from doing so. See id. at 230–31
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`(noting that “[t]he incremental value and utility of [surcharging] relief is limited, however,
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`because many states, including New York, California, and Texas, prohibit surcharging as a
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`matter of state law”); id. at 238–39 (“A significant proportion of merchants in the (b)(2) class are
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`either legally or commercially unable to obtain incremental benefit from the primary relief . . .
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`and class counsel knew at the time the Settlement Agreement was entered into that this relief was
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`virtually worthless to vast numbers of class members.”).12 Despite these significant concerns,
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`the Second Circuit did not abrogate Judge Gleeson’s analysis in its entirety, and the majority of
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`its concerns were circumscribed to representation and relief afforded to the (b)(2) injunctive
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`class.
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`12 The Court notes that the landscape of state no-surcharging laws is changing. For
`example, in 2017, the Supreme Court held that a New York state statute that prohibited
`merchants from imposing a surcharge on customers using credit cards regulated speech, and the
`court remanded the matter to the Second Circuit to determine whether such speech regulation
`violates the First Amendment. See Expressions Hair Design v. Schneiderman, 581 U.S. ---, 137
`S. Ct. 1144, 1146 (Mar. 29, 2017). In addressing a similar California statute, in 2018, the Ninth
`Circuit held that the statute violated First Amendment commercial free speech rights. Italian
`Colors Rest. v. Becerra, 878 F.3d 1165, 1179 (9th Cir. 2018). Also in 2018, a federal district
`court in Texas relied on Expressions Hair Design to hold that the state’s anti-surcharge statute
`was unconstitutional as applied to the merchants in the case. See Rowell v. Paxton, 336 F. Supp.
`3d 724, 732 (W.D. Tex. 2018).
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`8
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`c. Relevant subsequent proceedings
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`After remand, on August 11, 2016, the Court held a case management conference to
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`discuss, among other items, the Second Circuit’s decision.13 (See Min. Entry dated Aug. 11,
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`2016, Docket Entry No. 6654.) In order to address the Second Circuit’s concerns regarding
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`unitary representation of the classes, on November 30, 2016, pursuant to Rule 23(g)(3), the Court
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`appointed two separate groups of interim co-lead counsel to represent (1) merchants seeking
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`certification under Rule 23(b)(2) for equitable relief, and (2) merchants seeking certification
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`under Rule 23(b)(3) for monetary damages.14 Interim Class Counsel Order 1; see also In re
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`Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., No. 05-MD-1720, 2017 WL
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`4325812, at *4 (E.D.N.Y. Sept. 27, 2017) (discussing Interim Class Counsel Order). The Court
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`appointed the Nussbaum Law Group, P.C., Hilliard & Shadowen LLP, Freed Kanner London &
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`Millen LLC, and Grant & Eisenhofer P.A. (“Class Counsel”) to serve as interim Rule 23(b)(2)
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`Class Counsel for the merchants seeking equitable relief, and appointed Robins Kaplan LLP,
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`Berger & Montague P.C., and Robbins Geller Rudman & Dowd LLP (the “Robins Group”) to
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`serve as interim Rule 23(b)(3) class counsel for the merchants seeking damages relief — the
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`same three firms that represented the entire consolidated class in the proceedings before Judge
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`Gleeson.15 (See Interim Class Counsel Order 1.)
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`13 On December 14, 2014, the litigation was reassigned from Judge Gleeson to the
`undersigned. (Judicial Panel on Multidistrict Litigation Order Reassigning Case, Docket Entry
`No. 6359.)
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`14 Magistrate Judge James Orenstein, who managed discovery and other matters in this
`litigation for many years, decided the Class Counsel motions. (Mem. and Order dated Nov. 30,
`2016 (“Interim Class Counsel Order”) 1, Docket Entry No. 6754.)
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`15 In September of 2018, the (b)(3) class jointly filed for preliminary approval of a
`proposed settlement, and in January of 2019, the Court preliminarily approved the proposed
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`9
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`d. Class Plaintiffs’ allegations
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`On March 31, 2017, Rule 23(b)(2) Class Counsel filed a complaint on behalf of the Rule
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`23(b)(2) representative class plaintiffs and a putative Rule 23(b)(2) class. (Compl.) The Rule
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`23(b)(2) Plaintiffs challenge “Defendants’ collusive and anticompetitive practices . . . [that]
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`harm[] competition and impose[] upon Plaintiffs and Class Members supracompetitive,
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`exorbitant, and collectively-fixed prices” in violation of Sections 1 and 2 of the Sherman Act,
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`and the California Cartwright Act. (Id. ¶¶ 4−5.) Plaintiffs bring their claims under Section 16 of
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`the Clayton Act, seeking equitable relief “to prevent and restrain violations” of the Sherman Act
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`and California Cartwright Act. (Id. ¶ 6.)
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`The seven named Plaintiffs are merchants that accept payment by Visa- and Mastercard-
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`branded cards.16 (See id. ¶¶ 10−18.) The named Plaintiffs are comprised of two “combination
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`bar and videogame arcade[s]” with their principal places of business in Chicago, Illinois; “a
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`family dental practice that also engages in the retail selling of dental supplies” with its principal
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`place of business in Corpus Christi, Texas; a “business internet service provider” with its
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`principal place of business in Coral Gables, Florida; a “business information technology support
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`provider” with its principal place of business in Miami, Florida; a pharmacy with its principal
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`place of business in Tamarac, Florida; and a beauty salon with its principal place of business in
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`Flowery Branch, Georgia. (Id. ¶¶ 11–15, 17–18.)
`
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`settlement. See Interchange Fees III, 330 F.R.D. 11, 11 (E.D.N.Y. 2019). In June of 2019, the
`(b)(3) class plaintiffs filed a motion for final approval of the settlement, and in December of
`2019, the Court granted the motion for final approval. See Interchange Fees IV, 2019 WL
`6875472, at *36. The final approval order is currently on appeal to the Second Circuit.
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`16 Barry’s Cut Rate Stores, Inc. and Town Kitchen, LLC d/b/a Town Kitchen & Bar were
`initially part of the original nine proposed class representatives, (see Compl.), but they dismissed
`their claims in March of 2018, (see Stipulation and Order of Dismissal, Docket Entry No. 7171).
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`10
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`Plaintiffs allege that Defendants (1) impose supracompetitive interchange fees on Visa
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`and Mastercard transactions and (2) facilitate these anticompetitive practices by forcing
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`merchants to abide by anti-steering and other restraints.17 (See id.) Plaintiffs also allege that this
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`anticompetitive behavior causes antitrust injury common to Plaintiffs and putative class members
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`and will continue to cause harm unless enjoined. (See id. ¶ 19.) Plaintiffs contend that “[e]ven
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`after litigation, legislation, and regulation forced needed reforms on the Defendants and
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`technology threatened to disrupt Visa and MasterCard’s dominant position in the marketplace,
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`the Defendants used their market power to continue to restrain competition.” (Id. ¶ 1.) In
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`addition, although the rule changes resulting from the Durbin Amendment, the DOJ consent
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`decree, and the 2013 Settlement Agreement “were steps in the right direction for [m]erchants,”
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`Plaintiffs continue to suffer antitrust injury due to current anti-steering restraints, “and as a result
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`of the continuing effects of decades of enforcement of the [n]o-[s]urcharge [r]ule and the prior
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`versions of the restraints.” (Id. ¶ 165.)
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`Plaintiffs seek declaratory and injunctive relief against all Defendants. They request a
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`declaratory judgment, pursuant to Rule 57 of the Federal Rules of Civil Procedure and 28 U.S.C.
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`§ 2201(a), declaring that Defendants’ conduct is unlawful as alleged in the Complaint, (id.
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`¶ 426), and further request that the Court enjoin and restrain the wrongful conduct alleged in the
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`Complaint, pursuant to Section 16 of the Clayton Act, (id. ¶ 428).
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`17 The challenged network rules and restraints include the default interchange fees, no-
`surcharge rules, honor-all-cards rules, no-discount rules, no-bypass rule, and Visa and
`Mastercard’s discrimination rules, (see Pls.’ Mem. 2 n.5), are sometimes referred to as the
`“Restraints” or “Anti-Steering Restraints” for purposes of this Memorandum and Order. The
`Restraints have been described at length in previous decisions. See Barry’s Cut Rate Stores Inc.,
`2019 WL 7584728, at *2–12; Interchange Fees II, 827 F.3d at 228–29; Interchange Fees I, 986
`F. Supp. 2d at 213–15.
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`As to all Defendants, including Bank Defendants, Plaintiffs request, among other things,
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`that the Court: “[d]eclare, adjudge, and decree that Defendants have committed the violations of
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`the federal and state antitrust laws” alleged in the Complaint; “[o]rder that Defendants, their
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`directors, officers, employees, agents, successors, members, and all persons in active concert and
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`participation with them be enjoined and restrained from, in any manner, directly or indirectly,
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`committing the violations of the Cartwright and Sherman Acts”; and “[g]rant further relief as is
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`necessary to correct for the anticompetitive market effects caused by Defendants’ unlawful
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`conduct.” (Id. at 106−07.)
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`In April of 2019, the Bank Defendants moved to dismiss the Rule 23(b)(2) Plaintiffs’
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`Complaint. (See Bank Defs.’ Mot. to Dismiss, Docket Entry No. 7399.) In November of 2019,
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`the Court denied the motion, finding that Plaintiffs had Article III standing and that they alleged
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`an ongoing antitrust conspiracy. See Barry’s Cut Rate Stores Inc., 2019 WL 7584728, at *34.
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`e. Rule 23(b)(2) Plaintiffs’ motion for class certification
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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.18 (Pls.’ Mot.) In their motion for class certification, Plaintiffs seek to certify the
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`following equitable relief class under Rule 23(a) and Rule 23(b)(2):
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`All persons, businesses, and other entities (referred to herein 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 8 years after the date of entry of
`Final Judgment in this case.
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`18 In December of 2020, Rule 23(b)(2) Plaintiffs, Direct Action Plaintiffs, and
`Defendants filed several fully briefed motions for summary judgment, as well as several Daubert
`motions. (See Defs.’ Notice of Mot. for Summ. J., Docket Entry No. 8067; Target Pls.’ Notice
`of Mot. for Partial Summ. J., Docket Entry No. 8097; Pls.’ Notice of Mot. for Partial Summ. J.,
`Docket Entry No. 8150; Elgin Pl.’s Notice of Mot. for Partial Summ. J., Docket Entry No. 8178;
`7-Eleven Pls.’ and Home Depot Pls.’ Notice of Mot. for Partial Summ. J., Docket Entry No.
`8184.) The Court addresses the order in which the motions will be decided in Section II.b infra.
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`(Pls.’ Mem. 5.) Plaintiffs argue that they satisfy the requirements of Rule 23(a) because the
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`proposed class is sufficiently numerous, legal and factual issues are common to all class
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`members, the named Plaintiffs’ claims are typical of class members’ claims, and Plaintiffs and
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`co-counsel will fairly and adequately represent the class. (See Id. at 23–32.) Plaintiffs also
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`argue that they satisfy the requirements of Rule 23(b)(2) because Defendants’ imposition and
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`enforcement of the interchange fee, honor-all-cards rules, and no-surcharge rules apply to each
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`member of the class, market definitions and market power can be evaluated on a classwide basis
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`and would apply to all members of the class, and Plaintiffs seek classwide relief. (See id. at 32–
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`45.) Finally, Plaintiffs argue that the class should be certified as a mandatory class because non-
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`opt-out classes are the default in Rule 23(b)(2) classes. (See id. at 46–50.)
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`f. Opposition to Plaintiffs’ motion for class certification
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`i. Direct Action Plaintiffs’ opposition
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`Direct Action Plaintiffs oppose Plaintiffs’ motion for class certification and argue that the
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`class should not be certified as proposed. (See Direct Action Pls.’ Opp’n.) Direct Action
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`Plaintiffs argue that certification of a class without opt-out rights violates due process by risking
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`the preclusion of individualized damages claims and violates due process and