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IN RE CURRENCY CONVERSION FEE ANTITRUST LITIGATION

June 20, 2005.

IN RE CURRENCY CONVERSION FEE ANTITRUST LITIGATION. THIS DOCUMENT RELATES TO: GILBERT SCHRANK, individually and on behalf of all others similarly situated, Plaintiff,
v.
CITIBANK (SOUTH DAKOTA), N.A., Defendant.



The opinion of the court was delivered by: WILLIAM PAULEY, District Judge

MEMORANDUM AND ORDER

This class action concerns foreign currency conversion fees imposed by defendant Citibank (South Dakota), N.A. ("Defendant" or "Citibank") on its credit cardholders. Plaintiff Gilbert Schrank ("Plaintiff" or "Schrank") asserts claims pursuant to New York consumer protection statutes and the common law of New York and other states.

Plaintiff moves for reconsideration of this Court's Memorandum and Order, dated December 2, 2004, certifying a class of New York state residents suing under the New York Personal Property Law. For the reasons set forth below, Plaintiff's motion is granted in part and denied in part. BACKGROUND

  The relevant facts are described in detail in this Court's prior Memoranda and Orders. See Schrank v. Citibank (South Dakota), N.A., No. 03 Civ. 2843, 2004 WL 2750091 (S.D.N.Y. Dec. 2, 2004); Schrank v. Citibank (South Dakota), N.A., No. 1409, 21-95, 2003 WL 22097502 (S.D.N.Y. Sept. 10, 2003); see also In re Currency Conversion Fee Antitrust Litig., No. 1409, 21-95, 2005 WL 1405993 (S.D.N.Y. June 16, 2005) ("Currency Conversion IV"); 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").

  Schrank asserts six claims in his Complaint: (1) violation of New York Personal Property Law ("NYPPL"), Article 10, § 413(3)(a); (2) violation of New York General Business Law § 349 ("Section 349"); (3) common law fraud; (4) unconscionable fees under the common law and UCC § 2-202; (5) violation of the duty of good faith and fair dealing pursuant to common law and UCC § 1-203; and (6) unjust enrichment. Following the removal and transfer of this action to this Court, Plaintiff sought certification of two classes, a New York class for New York statutory claims and a national class for common law claims. This Court certified a New York class consisting of "[a]ll New York State residents issued Citibank, Visa or MasterCard credit cards who did not agree to arbitrate their claims and were assessed a foreign currency conversion fee in violation of the New York Personal Property Law." Schrank, 2004 WL 2750091, at *9.

  Schrank moves for reconsideration arguing that this Court should have certified a New York class with respect to all claims. (Plaintiff's Memorandum in Support of Motion for Reconsideration ("Pl. Mem.") at 4-10.) In addition, Schrank contends that a national class is appropriate for his claims of breach of good faith and fair dealing and unjust enrichment. (Pl. Mem. at 10-12.) Plaintiff also asserts that Citibank has waived its right to compel arbitration by litigating the action in this forum and benefiting from discovery not available in arbitral proceedings. (Pl. Mem. at 12-17.)

  Defendant counters that Plaintiff's motion is an improper attempt to reargue issues that this Court has already decided and raise new arguments not addressed in the initial motion papers. (Defendant's Memorandum in Opposition to Reconsideration ("Def. Mem.") at 2-3.) Citibank also contends that it has not waived its right to compel arbitration. (Def. Mem. at 7-8.)

  DISCUSSION

  I. Motion for Reconsideration Standard

  "A motion for reconsideration should be granted only where the moving party demonstrates that the Court has overlooked factual matters or controlling precedent that were presented to it on the underlying motion and that would have changed its decision." Colodney v. Continuum Health Partners, Inc., No. 03 Civ. 7276 (DLC), 2004 WL 1857568, at *1 (S.D.N.Y. Aug. 18, 2004) (internal quotation marks and citation omitted). Such a motion "should not be granted where the moving party seeks solely to relitigate an issue already decided." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Indeed, reconsideration is not an opportunity to take "a `second bite at the apple' for a party dissatisfied with a court's ruling." Pannonia Farms, Inc. v. USA Cable, No. 03 Civ. 7841 (NRB), 2004 WL 1794504, at *2 (S.D.N.Y. Aug. 10, 2004). In addition, "a motion for reconsideration cannot assert new arguments or claims which were not before the court on the original motion." Koehler v. Bank of Bermuda, Ltd., No. M18-302 (CSH), 2005 WL 1119371, at *1 (S.D.N.Y. May 10, 2005); accord Am. Hotel Int'l Group v. OneBeacon Ins. Co., No. 01 Civ. 0654 (RCC), 2005 WL 1176122, at *1 (S.D.N.Y. May 18, 2005). Under Local Rule 6.3, "[t]he standard for granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked." Shrader, 70 F.3d at 257. Whether reconsideration is appropriate is "within the sound discretion of the district court." Colodney, 2004 WL 1857568, at *1.

  II. Class Certification

  Plaintiff does not point to any "controlling decisions or data" that this Court overlooked in rendering its class certification decision. Instead, Schrank reiterates arguments previously addressed by this Court or presents entirely new arguments, both impermissible grounds for reconsideration.

  This Court considered and rejected Plaintiff's argument with respect to certification of his Section 349 claim. That section requires proof of causation, which this Court previously concluded "entails individual inquiries" not appropriate for class certification under Rule 23(b)(3). See Schrank, 2004 WL 2750091, at *6-7. In addition, this Court held that Plaintiff's claims were not typical of the claims of other class members. Schrank's claims may be subject to certain defenses not applicable to the rest of the class and as such, unique and ineligible for class certification under Rule 23(a)(3). Schrank, 2004 WL 2750091, at *4.

  Similarly, this Court previously decided that Schrank's unjust enrichment claim is not amenable to national class certification. Variations in the laws of fifty different states eviscerate any common issues that may ...


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