B & R Supermarket, Inc. v. Visa, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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B & R SUPERMARKET, INC., d/b/a Milam’s

Market, GROVE LIQUORS LLC, STROUK

GROUP LLC, d/b/a Monsieur Marcel, and

PALERO FOOD CORP. and CAGUEYES FOOD

MEMORANDUM & ORDER

CORP., d/b/a Fine Fare Supermarket, Individually

17-CV-02738 (MKB)

and on Behalf of All Others Similarly Situated,

Plaintiffs,

v.

VISA INC., VISA U.S.A., INC., MASTERCARD

INTERNATIONAL INC., AMERICAN EXPRESS

COMPANY, and DISCOVER FINANCIAL

SERVICES,

Defendants.1

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MARGO K. BRODIE, United States District Judge:

Plaintiffs B & R Supermarket, Inc., doing business as Milam’s Market (“B & R

Supermarket”), Grove Liquors LLC, Strouk Group LLC, doing business as Monsieur Marcel

(“Monsieur Marcel”), and Palero Food Corp. and Cagueyes Food Corp., doing business as Fine

Fare Supermarket (“Fine Fare Supermarket”), commenced this class action against Defendants

MasterCard International Inc. (“Mastercard”), Visa Inc. and Visa U.S.A., Inc. (collectively

“Visa”), Discover Financial Services (“Discover”), and American Express Company (“American

Express”), alleging violations of the Sherman Act, 15 U.S.C. §§ 1, 3, and state antitrust and

consumer protection laws of California, Florida, and New York, and asserting unjust enrichment

1 On May 6, 2021, the Court granted a consent motion to amend the caption of the case.

(See Order dated May 6, 2021, Docket Entry No. 761.) The Court directs the Clerk of Court to

amend the case caption to the caption used in this Memorandum and Order.

claims. (Compl., Docket Entry No. 1; Am. Compl., Docket Entry No. 291.) Plaintiffs’ claims

arise out of Defendants’ processes for adopting EMV technology for card transactions in the

United States.2 Plaintiffs allege that Defendants violated antitrust laws by entering into a

conspiracy to (1) adopt the same policy via nearly identical rules for shifting billions of dollars in

liability from banks to merchants (“Liability Shift” or “Fraud Liability Shift” or “FLS”) for

fraudulent charges (“chargebacks”); and (2) make the Liability Shift effective on the same day

and in the same manner for all four networks, to prevent merchants from steering customers to

use cards with more lenient terms or concessions such as reduced interchange or merchant

discount fees.3 (See Mem. and Order dated Sept. 30, 2016 (“Sept. 2016 Order”) 4, Docket Entry

No. 346); B & R Supermarket, Inc. v. Visa, Inc. (B & R I), No. 16-CV-1150, 2016 WL 5725010,

at *2 (N.D. Cal. Sept. 30, 2016); (Am. Compl. ¶¶ 2, 4, 7, 9.)

Currently before the Court is Discover’s motion to compel arbitration and stay the claims

of merchants within the Class with whom Discover has direct contractual relationships

(“Retained Merchants”) pending the arbitration proceedings pursuant to Rules 12(b)(1) and

12(b)(3) of the Federal Rules of Civil Procedure. (See Discover’s Mot. to Compel Arbitration

(“Discover’s Mot.”), Docket Entry No. 755; Discover’s Mem. in Supp. of Discover’s Mot.

2 EMV technology is a global standard for credit cards that uses computer chips and chip

readers to authenticate (and secure) chip-card transactions. (See Am. Compl. ¶¶ 65, 67.) It

allows for secure transmittance of “dynamic” card information by creating a unique electronic

signature for each transaction. (Id. ¶ 65.) Prior to the adoption of EMV technology, payment

cards relied entirely on magnetic stripes, which can only communicate “static” information such

as the card number and expiration date. (Id. ¶¶ 63, 65.)

3 Plaintiffs allege that had Defendants not conspired to impose the Liability Shift at the

same time, at least one Defendant would have offered more lenient terms such as no “Liability

Shift component, an exten[sion of the] Liability Shift date, a break on fees, equipment or other

more favorable terms.” (Am. Compl. ¶ 9.) They allege that “[i]n a truly competitive

environment, at least one of these entities would or should have broken ranks and offered

merchants a break on any number of terms.” (Id.)

(“Discover’s Mem.”), Docket Entry No. 755-1; Pls.’ Mem. in Opp’n to Discover’s Mot. (“Pls.’

Opp’n”), Docket Entry No. 755-7.)

For the reasons set forth below, the Court denies Discover’s motion to compel as

premature.

I. Background

Plaintiffs commenced this action in March of 2016 in the Northern District of California,

before District Judge William Alsup. (Compl.) On July 15, 2016, Plaintiffs filed an Amended

Complaint,4 (Am. Compl.), which Defendants later moved to dismiss,5 (Defs.’ Mot. to Dismiss,

Docket Entry No. 303).

On September 30, 2016, Judge Alsup granted in part and denied in part the motions to

dismiss the Amended Complaint. B & R I, 2016 WL 5725010, at *13. Judge Alsup dismissed

the claims against all Defendants other than Mastercard, Visa, Discover, and American Express.

Id at *9–12. Judge Alsup also granted Fine Fare Supermarket’s motion to intervene against the

above-named Defendants, including American Express.6 Id. at *13. In a separate order, Judge

4 The Amended Complaint named the following additional Defendants: Bank of

America, N.A., Capital One Financial Corporation, Chase Bank USA, National Association,

Citibank (South Dakota), N.A., Citibank, N.A., PNC Bank, National Association, U.S. Bank

National Association, and Wells Fargo Bank, N.A. (collectively, the “Issuing Banks”), and

EMVCo. (Am. Compl.)

5 Discover and the Issuing Banks, together with EMVCo, separately moved to dismiss

the Amended Complaint. (Bank Defs.’ Mot. to Dismiss, Docket Entry No. 301; Discover Mot.

to Dismiss, Docket Entry No. 305.)

6 Fine Fare Supermarket is not a party to a CAA with American Express and does not

accept its cards. (Pls.’ Letter dated Oct. 20, 2017, Docket Entry No. 604.) Because Judge Alsup

transferred B & R Supermarket’s and Monsieur Marcel’s direct claims against American Express

to the Southern District of New York pursuant to the CAA, Fine Fare Supermarket is the only

named Plaintiff with claims against American Express. However, because Fine Fare

Supermarket does not accept American Express and has no agreement with American Express, it

Alsup severed and transferred the claims by B & R Supermarket and Monsieur Marcel against

American Express to the United States District Court for the Southern District of New York

based on the forum selection provisions in American Express’ Card Acceptance Agreements

(“CAA”) with merchants. (Order granting Mot. to Transfer, Docket Entry No. 282.)

On March 10, 2017, Plaintiffs moved for class certification. (Pls.’ Mot. for Class

Certification, Docket Entry No. 425.) By Order dated May 4, 2017, Judge Alsup transferred the

case to this Court pursuant to 28 U.S.C. § 1404(a), citing judicial efficiency and Discover’s

concerns with regard to potential inconsistent liability theories alleged by putative class members

in this case and the cases consolidated in the multi-district litigation, In re Payment Card

Interchange Fee & Merchant Discount Antitrust Litigation, No. 05-MD-01720 (E.D.N.Y. filed

Oct. 20, 2005), pending before this Court. (Order dated May 4, 2017, Docket Entry No. 518.)

By Memorandum and Order dated March 11, 2018 (the “March 2018 Order”), the Court

found that Plaintiffs had satisfied the explicit requirements of Rule 23(a) — numerosity,

commonality, typicality, and adequacy of both class representatives and counsel. (Mar. 2018

Order 12–19, Docket Entry No. 643); B & R Supermarket, Inc. v. MasterCard Int’l (B & R II),

No. 17-CV-2738, 2018 WL 1335355, at *7–10 (E.D.N.Y. Mar. 14, 2018). However, because

Plaintiffs had failed to satisfy Rule 23(a)’s implied requirement of ascertainability, the Court

denied Plaintiffs’ motion for class certification without prejudice. (Mar. 2018 Order 20–27); B

& R II, 2018 WL 1335355, at *13–14.

On July 9, 2019, Plaintiffs renewed their motion for class certification, (see Pls.’

Renewed Mot. for Class Certification, Docket Entry No. 706), and by Memorandum and Order

seeks only joint and several liability against American Express based on chargebacks by

Mastercard, Visa, and Discover. (Id.)

dated August 28, 2020 (the “August 2020 Decision”), the Court certified a class consisting of

merchants who incurred one or more unreimbursed chargeback(s) between October 1, 2015

through and including September 30, 2017, pursuant to the Fraud Liability Shift for the

assessment of Mastercard, Visa, Discover and/or Amex payment card chargebacks (the “Class”),

and excluding from the Class members of the judiciary and government entities or agencies.

(Aug. 2020 Decision, Docket Entry No. 725). In September of 2020, Defendants Visa,

Mastercard, and Discover petitioned the Second Circuit for permission to appeal the August

2020 Decision pursuant to Rule 23(f) of the Federal Rules of Civil Procedure. (See Copy of

23(f) Pet. for Leave to Appeal, Docket Entry No. 727.)

On October 30, 2020, while the Rule 23(f) petition was still pending before the Second

Circuit, Discover served its motion to compel arbitration. (See Letter dated Oct. 30, 2020,

Docket Entry No. 737.) In December of 2020, on consent, the parties agreed to stay the balance

of their briefing on the motion to compel pending the Second Circuit’s decision on the Rule 23(f)

petition. (See Letter dated Dec. 2, 2020, Docket Entry No. 738; Order dated Dec. 9, 2020.)

In January of 2021, the Second Circuit denied Defendants’ Rule 23(f) petition, finding

that an immediate appeal was not warranted. (See USCA Mandate, Docket Entry No. 745.)

Following the Second Circuit’s decision, the parties resumed briefing Discover’s motion to

compel, (see Order dated Feb. 22, 2021; Order dated Mar. 26, 2021), and on March 29, 2021, the

parties filed the fully briefed motion, (see Discover’s Mot.). Plaintiffs have not yet distributed

notice to the Class or submitted a notice plan to the Court for approval. (See Decl. of George C.

Aguilar in Supp. of Pls.’ Opp’n (“Aguilar Decl.”) ¶ 2, Docket Entry No. 755-8.)

II. Discussion

a. Standard of review

The Federal Arbitration Act (the “FAA”) requires courts to compel arbitration of claims

that the parties have agreed to arbitrate. See AT&T Mobility, LLC v. Concepcion, 563 U.S. 333,

339 (2011). Courts consider four factors in order to determine whether an action should be

dismissed in favor of arbitration: “(1) whether the parties agreed to arbitrate; (2) the scope [of]

the arbitration agreement; (3) whether, if federal statutory claims are asserted, Congress intended

those claims to be nonarbitrable; and (4) whether, if some but not all of the claims in the case are

arbitrable, the case should be stayed pending arbitration.” McAllister v. Conn. Renaissance Inc.,

496 F. App’x 104, 106 (2d Cir. 2012) (citing JLM Indus., Inc. v. Stolt–Nielsen SA, 387 F.3d 163,

169 (2d Cir. 2004)); see also Daly v. Citigroup Inc., 939 F.3d 415, 421 (2d Cir. 2019) (same);

Garcia v. Golden Abacus Inc., No. 16-CV-6252, 2017 WL 2560007, at *2 (S.D.N.Y. June 13,

2017) (same).

Generally, “as a matter of federal law, any doubts concerning the scope of arbitrable

issues should be resolved in favor of arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury

Constr. Corp., 460 U.S. 1, 24–25 (1983); see also Nat’l Union Fire Ins. Co. of Pittsburgh, PA v.

BMC Stock Holdings, Inc., 796 F. App’x 45, 48 (2d Cir. 2019) (quoting same). When an

agreement is clear, “it is the language of the contract that defines the scope of disputes subject to

arbitration.” E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 289 (2002); see also Abdullayeva v.

Attending Homecare Servs. LLC, 928 F.3d 218, 222 (2d Cir. 2019) (“In answering the first

question — whether the parties agreed to arbitrate — we look to ‘state contract law principles.’”

(quoting Nicosia v. Amazon.com, Inc., 834 F.3d 220, 229 (2d Cir. 2016))). An employee’s right

to pursue statutory claims may only be waived by a Collective Bargaining Agreement (CBA) if

that waiver is “clear[] and unmistakable[].” 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 274

(2009); see also Lawrence v. Sol G. Atlas Realty Co., Inc., 841 F.3d 81, 83–84 (2d Cir. 2016)

(refusing to compel arbitration where the CBA did not clearly encompass the plaintiffs’ statutory

claims).

In deciding a motion to compel arbitration, courts apply a similar standard to that applied

to a motion for summary judgment and “draw all reasonable inferences in favor of the non-

moving party.” Nicosia, 834 F.3d at 229; see also Soliman v. Subway Franchisee Advert. Fund

Tr., Ltd., 999 F.3d 828, 833–34 (2d Cir. 2021) (first quoting Nicosia, 834 F.3d at 229; and then

quoting Meyer v. Uber Techs., Inc., 868 F.3d 66, 74 (2d Cir. 2017)). The party “seeking to avoid

arbitration generally bears the burden of showing the agreement to be inapplicable or

invalid.” Harrington v. Atl. Sounding Co., Inc., 602 F.3d 113, 124 (2d Cir. 2010) (citing Green

Tree Fin. Corp.–Ala. v. Randolph, 531 U.S. 79, 91–92 (2000)). In addition, “[a] district court

must stay proceedings once it is ‘satisfied that the parties have agreed in writing to arbitrate an

issue or issues underlying the district court proceeding.’” Nicosia, 834 F.3d at 229

(quoting WorldCrisa Corp. v. Armstrong, 129 F.3d 71, 74 (2d Cir. 1997)); see also Katz v.

Cellco P’ship, 794 F.3d 341, 345 (2d Cir. 2015) (“[A] stay of proceedings [is] necessary after all

claims have been referred to arbitration and a stay requested.”).

b. The Court denies Discover’s motion to compel arbitration as premature

Discover argues that its motion to compel arbitration is ripe because the Court has

certified a class, which “bring[s] the Retained Merchants before the Court and subject to the

Court’s jurisdiction.” (Discover’s Mem. 8; Discover’s Reply in Supp. of Discover’s Mot.

(“Discover’s Reply”) 4–6, Docket Entry No. 755-9.) In support, Discover argues that there is no

reason to postpone an inevitable decision on its motion to compel because “the relevant facts are

static and do not require an individualized inquiry” as only Retained Merchants already

identified by Discover would be compelled to arbitration. (Discover’s Reply 5–6.) Discover

contends that ripeness asks “how soon a party can enforce its right” whereas waiver asks “how

long a party can wait before it abandons a right.” (Id. at 4.) It argues that the cases cited in

Plaintiffs’ opposition to their motion are inapposite because those cases discuss waiver and not

whether parties “must wait until after an opt-out period expires before seeking relief and, in fact,

indicate that [class] certification makes arbitration ripe for review.” (Id. at 5 (first alteration in

original).)

Plaintiffs argue that the expiration of the opt-out period after notice to the class, not just

certification of a class, “establishes which parties are before the Court and which are not.” (Pls.’

Opp’n 5–6.) In support, Plaintiffs cite Chen-Oster v. Goldman, Sachs & Co., 449 F. Supp. 3d

216, 234 (S.D.N.Y. 2020), which they contend holds that the proper timing for a motion to

compel is after the opt-out period for a class has ended. (See id. at 6–7.)

While the Second Circuit has not addressed when a motion to compel is appropriately

filed in the context of class action litigation, courts routinely hold that “the earliest time to move

to compel arbitration is after class certification.” Chen-Oster, 449 F. Supp. 3d at 234–35

(collecting cases), objections overruled, No. 10-CV-6950, 2021 WL 4199912 (S.D.N.Y. Sept.

15, 2021); Jensen v. Cablevision Sys. Corp., 372 F. Supp. 3d 95, 123 (E.D.N.Y. 2019) (“This

[c]ourt will not compel absent putative class members who are not before this [c]ourt to binding

arbitration or issue a ruling regarding the enforceability of the provision. Any such ruling is

procedurally improper and analogous to an advisory opinion.” (citing Whittington v. Taco Bell of

Am., Inc., No. 10-CV-1884, 2011 WL 1772401, at *7 (D. Colo. May 10, 2011))), appeal

dismissed, leave to appeal denied, No. 19-628, 2019 WL 4296129 (2d Cir. Aug. 28, 2019); see

also Gutierrez v. Wells Fargo Bank, NA, 889 F.3d 1230, 1238 (11th Cir. 2018) (“[I]t cannot be

said that [the defendant’s] failure to seek arbitration with the unnamed class members prior to

class certification manifested inconsistency with its arbitration rights, considering that it would

have been impossible in practice to compel arbitration against speculative plaintiffs and

jurisdictionally impossible for the [d]istrict [c]ourt to rule on those motions before the class was

certified.”); Rushing v. Williams-Sonoma, Inc., No. 16-CV-1421, 2020 WL 6787135, at *2–3

(N.D. Cal. Oct. 8, 2020) (“[The defendant] could not move to arbitrate claims against [the

plaintiff] or against unnamed class members before class certification. Accordingly, it did not

have an existing right to compel arbitration and could not have acted inconsistently with that

right.”); Jackson v. Aliera Companies, No. 19-CV-1281, 2020 WL 4787990, at *4 (W.D. Wash.

Aug. 18, 2020) (“[D]istrict courts within this [c]ircuit have determined that a party cannot move

to compel putative class members to arbitration prior to class certification because putative class

members are not parties to the action.” (collecting cases)), reconsideration denied, 2020 WL

5984075 (W.D. Wash. Oct. 8, 2020); Forby v. One Techs., LP, No. 16-CV-856, 2020 WL

4201604, at *8 (N.D. Tex. July 22, 2020) (stating that the defendants “have not waived their

rights to compel arbitration against the absent class members, nor can the court make such

determination prior to class certification, as the class members are not yet parties to the

litigation” (citing Cruson v. Jackson Nat’l life Ins. Co., 954 F.3d 240, 251 (5th Cir. 2020))); In re

Ductile Iron Pipe Fittings (“DIPF”) Direct Purchaser Antitrust Litig., No. 12-CV-711, 2016

WL 5508843, at *2 (D.N.J. Sept. 28, 2016) (“The issue should be addressed when all parties to

the lawsuit are known and the specific arbitration agreements that [the] [d]efendant wishes to

enforce can be identified. It is not appropriate for the [c]ourt to exclude potential class members

from this class action and deprive those individuals of their day in court prior to their being made

a party in this case.”); In re TFT-LCD (Flat Panel) Antitrust Litig., No. 07-1827, 2011 WL

1753784, at *4 (N.D. Cal. May 9, 2011) (“It does not appear to the [c]ourt that defendants could

have moved to compel arbitration against such entities prior to the certification of a class in this

case because, as defendants point out, ‘putative class members are not parties to an action prior

to class certification.’” (quoting Saleh v. Titan Corp., 353 F. Supp. 2d 1087, 1091 (S.D. Cal.

2004))).

At least one court in this district has suggested that a defendant may only move to compel

arbitration after the notice and opt-out period for the class has ended. See Chen-Oster, 449 F.

Supp. 3d at 234–35. In Chen-Oster, the district court considered whether the defendant waived

its right to compel arbitration when the defendant moved to compel arbitration ten years after the

lawsuit commenced but three weeks after the opt-out period ended. See id. at 235. The district

court held that the defendant did not waive its right to compel arbitration because it “moved to

compel arbitration at the earliest practical time.” Id. The district court found that the defendant

had “moved expeditiously” when that class was certified in March of 2018, the deadline to opt of

out of the class was in mid-January of 2019, and the defendant served individual arbitration

demands “[a]bout three weeks later” in February of 2019. Id.

Courts in other districts that have considered the related issue of whether a defendant

waived its right to compel arbitration have similarly suggested that the end of the opt-out period

is the relevant consideration in deciding the timeliness of a motion to compel arbitration.7 See

7 Discover’s argument that cases concerning waiver are inapplicable is unpersuasive.

The cases on waiver discuss the related issue of when a motion to compel arbitration is properly

brought, including the issue of the earliest time when such a motion can be filed. See, e.g.,

Chen-Oster v. Goldman, Sachs & Co., 449 F. Supp. 3d 216, 234–35 (S.D.N.Y. 2020) (discussing

the “earliest practical time” that a motion to compel arbitration can be filed after a class was

certified). Accordingly, the Court finds the cases on waiver instructive in deciding whether the

instant motion is premature.

Mora v. Harley-Davidson Credit Corp., No. 08-CV-1453, 2012 WL 1189769, at *15 (E.D. Cal.

Apr. 9, 2012) (finding that the defendant did not waive its right to compel arbitration as to

unnamed class members and stating that “until a class is certified and the opt-out period has

expired, unnamed [c]lass members are not parties to this action, and their claims are not at issue”

(emphasis added)), report and recommendation adopted, 2012 WL 3245518 (E.D. Cal. Aug. 7,

2012); see also Monplaisir v. Integrated Tech Grp., LLC, No. 19-CV-1484, 2020 WL 999825, at

*1 (N.D. Cal. Mar. 2, 2020) (stating that the court deferred ruling on the defendants’ motion to

compel arbitration “until the close of the opt-in period” following the grant of conditional class

certification). For example, in In re DIPF Direct Purchaser Antitrust Litigation, the court

denied a motion seeking to exclude unnamed class members that were subject to an arbitration

agreement when the motion was filed before a class was certified. See In re DIPF Direct

Purchaser Antitrust Litig., 2016 WL 5508843, at *2. In denying the motion, the court stated that

the motion “should be addressed when all parties to the lawsuit are known,” and that “[n]ot until

the expiration of the opt-out period, if a class is ever certified in th[e] case, would all the parties

be aware of the composition of the class.” Id. Similarly, in In re TFT-LCD (Flat Panel)

Antitrust Litigation, the court denied the plaintiffs’ arguments that the defendants “waived any

right to arbitration that might exist between defendants and certain members of the . . . class.”

2011 WL 1753784, at *2, *4. The court held that the defendants did not waive their right to

compel arbitration because the “composition of the . . . class was not set until the expiration of

the opt-out period.” Id. at *4.

While the Court certified a class in August of 2020, the notice and opt-out period for the

Class has not yet expired as Class Counsel has not yet submitted a proposed notice plan to the

Court. (See Aguilar Decl. ¶ 2 (stating that “Plaintiffs have been actively engaged in working

towards establishing an effective class notice regimen” and that “Plaintiffs are still determining

the scope and methods of such notice, . . . and will submit their proposed notice plan to the Court

as soon as practicable”).) Because it is not yet known which Retained Merchants will opt out of

the Class and therefore which Retained Merchants will be included in the Class before the Court,

the Court denies Discover’s motion to compel as premature.8 See Chen-Oster, 449 F. Supp. 3d

at 234–35.

III. Conclusion

Accordingly, the Court denies Discover’s motion to compel as premature. Discover may

renew its motion to compel arbitration against the Retained Merchants once the notice and opt-

out period for the Class has ended.

Dated: September 27, 2021

Brooklyn, New York

SO ORDERED:

s/ MKB

MARGO K. BRODIE

United States District Judge

8 The Court notes that Retained Merchants have two methods of contracting with

Discover: a standard merchant services agreement (“MSA”), or a custom, individually

negotiated, MSA. (Decl. of Amy L. Parsons in Supp. of Discover’s Mot. (“Parsons Decl.”) ¶ 8,

Docket Entry No. 755-2.) Merchants who have standard MSAs “accept the terms of the MSA

when they accept a Discover card as payment.” (Id. ¶ 10.) Custom MSAs “typically reflect

minor revisions to the standard MSA.” (Id. ¶ 11.) While Discover contends that the majority of

Retained Merchants have standard MSAs with Discover, (id. ¶ 9), there are several Retained

Merchants with custom MSAs, (see Custom Merchants Chart, annexed to Parsons Decl. as Ex. 3,

Docket Entry No. 756-2). The existence of these custom MSAs potentially requiring

individualized determinations on whether arbitration is warranted, coupled with the lack of

notice provided to class members regarding their inclusion in the Class, further supports the

Court’s decision that it cannot impose a blanket order to compel arbitration on all Retained

Merchants at this point in the litigation.