United States District Court, S.D. New York
July 27, 2004.
IN RE CURRENCY CONVERSION FEE ANTITRUST LITIGATION.
The opinion of the court was delivered by: WILLIAM PAULEY, District Judge
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.*fn1
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.
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
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
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.