Opinion
MDL No. 1409, M 21-95.
July 27, 2004
Merrill G. Davidoff, Esq., Berger Montague, P.C., Philadelphia, Pennsylvania, Attorneys for Plaintiffs.
Daniel D. Edelman, Esq., Heller Ehrman White McAuliffe LLP, New York, New York, Attorneys for Defendant Visa U.S.A. Inc.
Fiona Schaeffer, Esq., Weil, Gotshal Manges LLP, New York, New York, Attorneys for Defendant MasterCard International Corp.
Julia Strickland, Esq., Stroock Stroock Lavan LLP, Los Angeles, California, Attorneys for Non-Party American Express Co.
MEMORANDUM AND ORDER
This action consolidates for centralized pretrial proceedings a number of putative class actions filed in this Court or transferred here by the Judicial Panel on Multi-district Litigation. The underlying complaints challenge alleged foreign currency conversion policies by VISA and MasterCard, the two largest credit card networks, and their member banks. The consolidated complaint alleges violations of the Sherman Act, 15 U.S.C. § 1 et seq., and the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq., arising out of an alleged price-fixing conspiracy by and among VISA and MasterCard and their member banks with respect to currency conversion fees.
Familiarity with this Court's prior Memorandum and Order is presumed. See In re Currency Conversion Fee Antitrust Litig., 265 F. Supp.2d 385 (S.D.N.Y. 2003).
Presently before this Court is non-party American Express Company's ("American Express") motion to reconsider this Court's April 21, 2004 Order, granting defendants' motion to compel American Express' compliance with their subpoena. See In re Currency Conversion Fee Antitrust Litig., No. MDL 1409, 2004 WL 848171 (S.D.N.Y. April 21, 2004). For the reasons set forth below, American Express' motion for reconsideration is denied.
DISCUSSION
A motion for reconsideration is an "extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources." In re Health Mgmt. Sys., Inc. Sec. Litig., 113 F. Supp.2d 613, 614 (S.D.N.Y. 2000) (internal quotation marks and citation omitted). Motions for reconsideration are governed by Local Civil Rule 6.3, which provides in relevant part: "There shall be served with the notice of motion a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked." Thus, to be entitled to reconsideration, the movant must demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion, which, had they been considered "might reasonably have altered the result reached by the court." Consolidated Gold Fields v. Anglo Am. Corp., 713 F. Supp. 1457, 1476 (S.D.N.Y. 1989); accord In re Initial Public Offering Antitrust Litig., Nos. 01 Civ. 2014 (WHP), 01 Civ. 11420 (WHP), 2004 WL 789770, at *1 (S.D.N.Y. April 13, 2004); Dietrich v. Bauer, 76 F. Supp.2d 312, 327 (S.D.N.Y. 1999); Ameritrust Co. Nat'l Ass'n v. Dew, 151 F.R.D. 237, 238 (S.D.N.Y. 1993). Rule 6.3 "is to be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the court." Dietrich, 76 F. Supp.2d at 327. A court may not allow a party to use a motion for reconsideration as a substitute for appealing from a final judgment. See Dietrich, 76 F. Supp.2d at 327; Morser v. AT T Info. Sys., 715 F. Supp. 516, 517 (S.D.N.Y. 1989); Korwek v. Hunt, 649 F. Supp. 1547, 1548 (S.D.N.Y. 1986). The purpose of Rule 6.3 is to "ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters." Carolco Pictures, Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y. 1988). "The decision to grant or deny a motion for reconsideration is within the sound discretion of the district court," Keiser v. CDC Inv. Mgmt. Corp., No. 99 Civ. 12101 (WHP), 2004 WL 516212, at *1 (S.D.N.Y. March 17, 2004); accord Dietrich, 76 F. Supp.2d at 327.
American Express argues that this Court's April 21, 2004 Order "overlooked one of the twenty-one requests contained in Visa's defendants' [sic] subpoena." (American Express' Memorandum in Support of Partial Reconsideration, dated May 14, 2004 ("Am. Ex. Mem.") at 2.) In particular, American Express posits that this Court could not have intended to allow Request No. 19, which seeks "[d]ocuments that reflect or relate to the criteria for the extension of credit or card-issuance for [American Express'] different card programs." (Declaration of Robert Mahnke, dated March 3, 2004 ("Mahnke Decl.") Ex. 1.) American Express floats two notions to support its position: (1) VISA failed to disclose that it was seeking documents relating to Request No. 19, and (2) documents relating to Request No. 19 are irrelevant. (Am. Ex. Mem. at 3, 5.) Both contentions are without merit.
When VISA sought to compel American Express' compliance with the subpoena, it included Request No. 19 in its motion and advanced its rationale for discovery:
Requests . . . 16 through 20 seek information about the definition of the relevant market, the identity of competitors and competitive products in that market, the market power each competitor possesses, and the market forces that drove foreign currency conversion pricing during the alleged conspiracy period. . . . To determine whether plaintiffs' allegations make economic sense and specifically whether defendants acted against their own economic self interest, absent collusion, in connection with currency conversion pricing, it is important to assess how the market as a whole behaved — especially a strong market competitor such as American Express.
(VISA's Memorandum in Support of Motion to Compel, dated March 3, 2004 ("VISA Mem.") at 8.) This Court considered Request No. 19 and VISA's argument in making its ruling. Thus, this Court rejects American Express' contention that it overlooked Request No. 19, or that VISA failed to move for compliance with that request. And, American Express does not contend that this Court overlooked any controlling decisions which might have altered the result.
American Express' contention that documents responsive to Request No. 19 are irrelevant is undermined by its reluctant acknowledgment that American Express' credit cards compete with cards issued by VISA and MasterCard. (American Express' Memorandum in Opposition of Motion to Compel, dated March 22, 2004, at 14; Transcript of Oral Argument, dated April 20, 2004 at 17-18.) Further, the criteria for American Express' extension of credit is relevant to an inquiry regarding market forces affecting foreign currency conversion pricing. See In re Currency Conversion, 2004 WL 848171, at *1. Thus, this Court finds that documents regarding American Express' extension of credit are relevant to competitive products in the credit card market as well as to a "determination of market forces that drove foreign currency conversion pricing during the alleged conspiracy period." (VISA Mem. at 8.)
Because American Express has failed to show that this Court overlooked controlling decisions or factual matters that were put before it on the underlying motion, its motion for reconsideration is denied.
SO ORDERED.