The opinion of the court was delivered by: WILLIAM PAULEY, District Judge
These class actions are consolidated for pretrial proceedings.
Plaintiffs allege violations of the Sherman Act, 15 U.S.C. § 1
et seq., the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601
et seq., and the South Dakota Deceptive Trade Practices Act
("DTPA"), arising from an alleged price-fixing conspiracy among
VISA, MasterCard and their member banks (collectively
"defendants") concerning foreign currency conversion fees.
Plaintiffs move for reconsideration of this Court's March 9, 2005
Memorandum and Order with respect to those portions that resulted
from defendants' motions to stay litigation pending arbitration.
For the reasons set forth below, plaintiffs' motion is denied.
The factual background underlying these actions is set forth in
this Court's prior opinions. See In re Currency Conversion Fee
Antitrust Litig., 361 F. Supp. 2d 237 (S.D.N.Y. 2005)
("Currency Conversion III"); In re Currency Conversion Fee
Antitrust Litig., 224 F.R.D. 555 (S.D.N.Y. 2004) ("Currency
Conversion II"); In re Currency Conversion Fee Antitrust
Litig., 265 F. Supp. 2d 385 (S.D.N.Y. 2003) ("Currency
Conversion I"). PROCEDURAL HISTORY
On November 12, 2003, plaintiffs moved for class certification.
Defendants opposed plaintiffs' motion, arguing inter alia that
"most putative class members voluntarily signed a binding
arbitration agreement with their credit card issuers" that
precludes their participation in the defined classes. Currency
Conversion II, 224 F.R.D. at 569. Defendants also requested that
cardholders with binding arbitration agreements be estopped from
litigating their claims against other card issuing banks and the
network defendants. Currency Conversion II, 224 F.R.D. at 570.
This Court rejected that request with respect to the non-issuing
banks "because the non-issuing defendant banks were not parties
to those agreements, and the contract provisions did not extend
to them." Currency Conversion II, 224 F.R.D. at 570.
Subsequently, on November 3, 2004, defendants filed a joint
motion for reconsideration, arguing that the Second Circuit's
intervening decision in JLM Industries, Inc. v. Stolt-Nielsen
SA, 387 F.3d 163 (2d Cir. 2004), requires this Court to apply
the estoppel doctrine to claims against non-issuing banks and the
network defendants. In addition, defendants jointly moved to stay
litigation pending arbitration. This Court agreed, holding that
the "arbitration agreements entered into before this litigation
are enforceable against the cardholders by the signatories,
network defendants and the non-signatory banks," based on the
estoppel doctrine enunciated in JLM. Currency Conversion III,
361 F. Supp. 2d at 245. Plaintiffs now move for reconsideration
of only those portions that resulted from defendants' stay
motions. (Plaintiffs' Reply in Support of Motion for
Reconsideration, dated Apr. 27, 2005 ("Pl. Reply") at 5.) DISCUSSION
I. Motion for Reconsideration Standard
Motions for reconsideration are governed by Local Civil Rule
6.3, which is "narrowly construed and strictly applied so as to
avoid repetitive arguments on issues that have been considered
fully by the court." Dietrich v. Bauer, 76 F. Supp. 2d 312, 327
(S.D.N.Y. 1999). A motion for reconsideration must include "a
memorandum setting forth concisely the matters or controlling
decisions which counsel believes the court has overlooked." Local
Rule 6.3; see also Consol. Gold Fields v. Anglo Am. Corp.,
713 F. Supp. 1457, 1476 (S.D.N.Y. 1989); Dietrich,
76 F. Supp. 2d at 327. Thus, a motion for reconsideration cannot assert new
arguments or claims which were not before the court on the
original motion. See, e.g., Kunica v. St. Jean Fin., Inc.,
63 F. Supp. 2d 342, 346 (S.D.N.Y. 1999) ("[A] party in its motion
for reargument may not advance new facts, issues or arguments not
previously presented to the court." (citation and internal
quotation marks omitted)).
The decision to grant or deny a motion for reconsideration is
within the sound discretion of the district court. 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) (citation and internal
quotation marks omitted).
II. Waiver of Arbitration Rights
"[T]here is a strong presumption in favor of arbitration[, and]
waiver of the right to arbitration is not to be lightly
inferred." Coca-Cola Bottling Co. v. Soft Drink & Brewery
Workers Union Local 812, 242 F.3d 52, 57 (2d Cir. 2001)
(internal quotation marks omitted); see Oldroyd v. Elmira Sav. Bank, FSB, 134 F.3d 72, 76 (2d
Cir. 1998). Any doubts regarding the issue of waiver should be
resolved in favor of arbitration. See PPG Indus., Inc. v.
Webster Auto Parts Inc., 128 F.3d 103, 107 (2d Cir. 1997); see
also Leadertex, Inc. v. Morganton Dyeing & Finishing Corp.,
67 F.3d 20, 25 (2d Cir. 1995) (citing Moses H. Cone Mem'l. Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983)). "The waiver
determination necessarily depends upon the facts of the
particular case and is not susceptible to bright line rules."
Cotton v. Slone, 4 F.3d 176, 179 (2d Cir. 1993).
"A party seeking to prove waiver of a right to arbitrate must
demonstrate (1) knowledge of an existing right to compel
arbitration; (2) acts inconsistent with that existing right; and
(3) prejudice to the party opposing arbitration resulting from
such inconsistent acts." Britton v. Co-op Banking Group,
916 F.2d 1405, 1412 (9th Cir. 1990); see also Ivax Corp. v. B.
Braun of Am., Inc., 286 F.3d 1309, 1315-16 (11th Cir. 2002);
Stifel, Nicolaus & Co. v. Freeman, 924 F.2d 157, 158 (8th Cir.
Plaintiffs argue that this Court should find that defendants
VISA and MasterCard (collectively, the "network defendants")
waived their right to stay litigation pending arbitration under
the equitable estoppel doctrine. (Plaintiffs' Memorandum in
Support of Motion for Reconsideration, dated Mar. 23, 2005 ("Pl.
Mem.") at 1.) Plaintiffs contend that while this Court found that
Chase and Citibank waived their right to stay litigation, it did
not address the issue with respect to VISA and MasterCard. (Pl.
Mem. at 1.) They further argue that the network defendants should
have moved to compel arbitration based on the estoppel doctrine
after this Court's July 7, 2003 opinion. By way of background, on July 7, 2003, this Court ruled on the
motion by defendants Bank One Delaware (f.k.a. First USA), Bank
of America, MBNA and their respective parent corporations to
refer the claims against them by their own cardholders to
arbitration.*fn1 Currency Conversion I,
265 F. Supp. 2d 385. As there were no MBNA cardholder plaintiffs at that time,
this Court did not consider whether their claims belonged in
arbitration. Currency Conversion I, 265 F. Supp. 2d at 398.
However, this Court held that Bank One Delaware (f.k.a. First
USA) and Bank of America cardholders were required to proceed to
arbitration. Currency Conversion I, 265 F. Supp. 2d at 416.
Specifically, this Court held ...