Opinion
MDL No. 1409 M 21-95.
November 3, 2004
MEMORANDUM AND ORDER
This action consolidates several putative class actions filed in this district or transferred to this Court by the Judicial Panel on Multi-District Litigation. The Second Consolidated Amended 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, 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 a motion to withdraw by seven (7) class representatives ("Withdrawing Plaintiffs"), and defendants' application to depose each of them. For the reasons set forth below, the Withdrawing Plaintiffs' motion is granted, and defendants' motion is denied.
DISCUSSION
On February 10, 2004, seven named plaintiffs filed a Notice of Withdrawal as class representatives. Defendants oppose withdrawal, arguing that the Withdrawing Plaintiffs may not withdraw unilaterally as class representatives, without this Court's approval pursuant to Rules 21 and 41(a) (2) of the Federal Rules of Civil Procedure. (Defendant's Memorandum in Opposition of Withdrawal, dated Feb. 20, 2004 ("Def. Mem.") at 4.) Defendants further contend that if this Court allows withdrawal, they should nevertheless be allowed to depose the Withdrawing Plaintiffs to learn the "circumstances surrounding [their] putative `withdrawals.'" (Letter to the Court from Brian P. Brosnahan, dated Oct. 18, 2004 at 2.)Rule 23 of the Federal Rules of Civil Procedure requires that the class representatives' interests be congruent with those of the class. See Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 331 (1980) (stating that class representatives must "represent the collective interest of the putative class" in addition to their own private interests); see also Maywalt v. Parker Parsley Petroleum Co., 67 F.3d 1072, 1077 (2d Cir. 1995) ("Both class representatives and class counsel have responsibilities to absent members of the class."); In re Avon Sec. Litig., No. 91 CIV. 2287 (LMM), 1998 WL 834366, at *10 n. 5 (S.D.N.Y. Nov. 30, 1998) ("Even before a class has been certified, counsel for the putative class owes a fiduciary duty to the class.").
Class plaintiffs must adequately represent the interests of absent class members. See Maywalt, 67 F.3d at 1078 ("The ultimate responsibility to ensure that the interests of class members are not subordinated to the interests of either the class representatives or class counsel rests with the district court."). Plaintiffs suggest that the Withdrawing Plaintiffs' are unable to protect the interests of class members. (Plaintiff's Reply in Support of Withdrawal, dated Apr. 1, 2004 ("Reply. Mem.") at 3-4.) A court may allow plaintiffs to withdraw as class representatives. See, e.g., In re Relafen Antitrust Litig., 218 F.R.D. 337, 341 n. 4 (D. Mass. 2003); Krim v. pcOrder.com, Inc., 210 F.R.D. 581, 583 n. 2 (W.D. Tex. 2002). If the Withdrawing Plaintiffs are inadequate representatives, due process requires their withdrawal as class representatives. See, e.g., Avon Sec., 1998 WL 834366, at *10 (allowing plaintiffs' counsel to substitute class representatives where "success in asserting rights or defenses of a client in litigation in the nature of a class action is dependent upon the joinder of others"). Indeed, "[a]bsent a good reason . . . a plaintiff should not be compelled to litigate if it doesn't wish to." Org. of Minority Vendors, Inc. v. Ill. Cent. Gulf R.R., No. 79 C 1512, 1987 WL 8997, at *1 (N.D. Ill. Apr. 2, 1987); accord In re Neopharm, Inc. Sec. Litig., No. 02 C 2976, 2004 WL 742084, at *1 (N.D. Ill. Apr. 7, 2004); see also Conafay v. Wyeth Labs., 793 F.2d 350, 353 (D.C. Cir. 1986) (noting that in federal practice, voluntary dismissals sought in good faith are generally granted "unless the defendant would suffer prejudice other than the prospect of a second lawsuit or some tactical advantage."). Here, the Withdrawing Plaintiffs seek not only to withdraw as class representatives, but as plaintiffs as well. To ensure that reluctant plaintiffs do not jeopardize the interests of absent class members, this Court approves the Withdrawing Plaintiffs' application.
As noted above, defendants seek to depose the Withdrawing Plaintiffs to learn about the circumstances surrounding their withdrawals. "[T]he burden on the defendant to justify discovery of absent class members by means of deposition is particularly heavy." Redmond v. Moody's Investor Serv., No. 92 Civ. 9161 (WK), 1995 WL 276150, at *1 (S.D.N.Y. May 10, 1995). Indeed, "discovery of absent class members regarding individual issues, as opposed to common questions, is inappropriate." Redmond, 1995 WL 276150, at *1. Here, defendants seek depositions for individual issues, and therefore have not overcome their heavy burden to justify such a request. Accordingly, this Court holds that defendants may not depose the Withdrawing Plaintiffs.
To the extent defendants can show expenses incurred with respect to their attempts to depose the Withdrawing Plaintiffs, "the proper remedy for such wasted expenditures would be reimbursement of costs rather than a denial of voluntary dismissal." In re Vitamins Antitrust Litig., 198 F.R.D. 296, 304 (D.D.C. 2000).
CONCLUSION
For the foregoing reasons, the Withdrawing Plaintiffs' motion is granted, and defendants' motion to depose the Withdrawing Plaintiffs is denied.SO ORDERED: