Oliver v. American Express Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

TERRY GAYLE QUINTON, SHAWN O’KEEFE, RAN

ANDREW AMEND, DAVID MOSKOWITZ, □ Oy 56 5 (NGO) Rey

NATE THAYER, RICKY AMARO, NANCI- ( (JRC)

TAYLOR MADDUX, ABIGAIL BAKER, WYATT

COOPER, JAMES ROBBINS IV, MARILYN

BAKER, SHERIE MCCAFFREY, ALLIE

STEWART, ELLEN MAHER, DEBBIE TINGLE,

ANGELA CLARK, EMILY COUNTS, and SARAH

GRANT, on behalf of themselves and all others

similarly situated,

Plaintiffs,

-against-

AMERICAN EXPRESS COMPANY and

AMERICAN EXPRESS TRAVEL RELATED

SERVICES COMPANY, INC.,

Defendants.

NICHOLAS G. GARAUFIS, United States District Judge.

Pending before the court are Plaintiffs’ and Defendants American

Express Company and American Express Travel Related Services

Company, Inc.’s (collectively, “Amex”) respective motions in

limine, numbering seven in total. (Pls.’ First Mot. (Dkt. 260); Pls.’

Second Mot. (Dkt. 261); Pls.’ Third Mot. (Dkt. 262); Pls.’ Fourth

Mot. (Dkt. 263); Amex’s First Mot. (Dkt. 264-1); Amex’s Second

Mot. (Dkt. 265-1); Amex’s Third Mot. (Dkt. 266-1).) The parties

oppose each other’s motions. (Amex’s First Opp. (Dkt. 270);

Amex’s Second Opp. (Dkt. 271); Amex’s Third Opp. (Dkt. 272);

Amex’s Fourth Opp. (Dkt. 273); Pls.’ First Opp. (Dkt. 275); Pls.’

Second Opp. (Dkt. 276); Pls.’ Third Opp. (Dkt. 277).) For the

reasons that follow, Plaintiffs’ motions in limine are GRANTED in

part and DENIED in part, and Amex’s motions in limine are

GRANTED in part and DENIED in part.

I. BACKGROUND

The court assumes familiarity with the factual background and

procedural history of this long-running antitrust dispute and re-

fers to facts in the discussion section as necessary to evaluate the

parties’ arguments. More detailed accounts of the facts underly-

ing this Memorandum and Order are available in the court’s past

orders and in the opinions stemming from the merchants’ and

federal and state governments’ previous cases on this issue. See

Oliver v. Am. Express Co., No. 19-CV-566 (NGG) (SJB), 2024 WL

100848, at *1-2 (E.D.N.Y. Jan. 9, 2024), amended in part, 2024

WL 217711 (E.D.N.Y. Jan. 19, 2024), reconsideration denied,

2024 WL 3086266 (E.D.N.Y. June 21, 2024); United States v. Am.

Express Co., 88 F. Supp. 3d 143, 149-167 (E.D.N.Y. 2015); United

States v. Am. Express Co., 838 F.3d 179, 184-93 (2d Cir. 2016);

Ohio v. Am. Express Co., 585 U.S. 529, 529-40 (2018); In re Am.

Express Anti-Steering Rules Antitrust Litig., 361 F. Supp. 3d 324,

331-33 (E.D.N.Y. 2019).

As relevant here, the parties submitted their fully briefed motions

in limine on February 21, 2025, and their proposed jury instruc-

tions, verdict forms, voir dire, and, in the case of Plaintiffs, a

statement of damages, on February 28, 2025. (Amex’s First Opp.;

Amex’s Second Opp.; Amex’s Third Opp.; Amex’s Fourth Opp.;

Pls.’ First Opp.; Pls.’ Second Opp.; Pls.’ Third Opp; Amex’s Pro-

posed Jury Instrs. (Dkt. 278); Amex’s Proposed Verdict Form

(Dkt. 278-1); Amex’s Proposed Voir Dire (Dkt. 279); Pls.’ Pro-

posed Jury Instrs. (Dkt. 282); Pls.’ Proposed Verdict Form (Dkt.

282-1); Pls.’ Proposed Voir Dire (Dkt. 283); Pls.’ Statement of

Damages (Dkt. 284).) Trial in this case is set to begin on July 28,

2025. Both parties move in limine requesting several rulings in

advance of trial. The court considers Plaintiffs’ motions in limine

before turning to Amex’s motions.!

II. LEGAL STANDARD

The purpose of motions in limine is “to aid the trial process by

enabling the [c]ourt to rule in advance of trial on the relevance

of certain forecasted evidence, as to issues that are definitely set

for trial, without lengthy argument at, or interruption of, the

trial.” Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996).? “Ev-

idence should be excluded on a motion in limine only when the

evidence is clearly inadmissible on all potential grounds.” Jean-

Laurent v. Hennessy, 840 F. Supp. 2d 529, 536 (E.D.N.Y. 2011).

The Federal Rules of Evidence (“FRE”) govern the admissibility

of evidence at trial.

“[C]ourts considering a motion in limine may reserve decision

until trial, so that the motion is placed in the appropriate factual

context.” Id. A district court’s ruling on a motion in limine is pre-

liminary and “subject to change when the case unfolds,

particularly if the actual testimony differs from what was [ex-

pected].” Luce v. United States, 469 U.S. 38, 41 (1984). As such,

at trial, the court may exercise its discretion “to alter a previous

in limine ruling.” Id. at 41-42.

III, PLAINTIFFS’ MOTIONS

Plaintiffs move in limine to preclude (1) evidence or argument

concerning the absence of Plaintiffs during trial; (2) “cumulative

1 This Memorandum and Order deals only with the parties’ respective mo-

tions in limine; the court will finalize the jury instructions and verdict form

at a later date. The magistrate judge randomly assigned to conduct jury

selection will decide whether and how to implement the parties’ proposed

voir dire.

? When quoting cases, unless otherwise noted, all citations and internal

quotation marks are omitted, and all alterations are adopted.

expert testimony”; (3) certain third-party publications; and (4)

evidence or testimony concerning the Class Representatives’ ad-

equacy. (See Pls.’ First Mot.; Pls.’ Second Mot.; Pls.’ Third Mot.;

Pls.’ Fourth Mot.) The court addresses each motion in turn.

A. The Absence of Plaintiffs During Trial

First, Plaintiffs request that the court preclude Amex from “offer-

ing evidence or argument concerning the absence of the Class

Representative Plaintiffs or other Plaintiffs (such as dismissed

Plaintiffs or previously proposed Plaintiffs) . . . during the trial

pursuant to Rules 401, 402, and 403.” (Pls.’ First Mot. at 1.)

Plaintiffs state that, while the Class Representative Plaintiffs plan

to testify in person at trial, because they are from 9 different

states, they do not intend to remain in the courtroom during the

entirety of the 16-day trial. (Id.) However, Plaintiffs suspect that

Amex “may seek to improperly bolster an argument that the Class

Representative Plaintiffs or other Plaintiffs are uninterested in

the outcome of the trial... by referring to their absence from the

courtroom.” (id.) Plaintiffs assert that such an argument would

run afoul of FRE 401, 402, and 403, and therefore request that

the court prohibit Amex from referencing the attendance or non-

attendance of the Class Representative Plaintiffs at trial. (Id.)

Amex opposes Plaintiffs’ motion on two bases. First, Amex repre-

sents that it “has no intention of’ making comments about the

presence or absence of Plaintiffs during trial, and, as such, there

is “no live dispute” regarding this issue. (Amex’s First Opp. at 1.)

Second, Amex asserts that Plaintiffs’ motion must be denied be-

cause their requested relief uses “loose language” and “skirts a

serious concern” held by Amex: that Plaintiffs “must call their

own witnesses to testify live at trial,” rather than present their

testimony by deposition designation. (Id.)

The parties’ respective submissions demonstrate that there is no

live dispute as to this issue. Amex does not intend to comment

on the presence or absence of Plaintiffs during trial, and the Class

Representative Plaintiffs plan to testify in person at trial. As such,

Plaintiffs’ first motion in limine is denied without prejudice to re-

newal should Amex retreat from its current position at trial.

Furthermore, should Amex decide to raise this issue at trial,

Amex must provide the court and Plaintiffs with 24 hours’ notice

of its intent to do so.

B. Expert Testimony

Second, Plaintiffs request that the court bar Amex from introduc-

ing “cumulative” expert testimony at trial pursuant to FRE 403.

(Pls.’ Second Mot. at 1.) Amex’s Trial Witness List provides that

Amex “will call” three expert witnesses at trial: Dr. B. Douglas

Bernheim, who will testify to “[p]rocompetitive justifications of

Amex’s [Non-Discrimination Provisions, or] NDPs”; Dr. Eric

Emch, who will testify to “[c]ompetitive effects”; and Dr. Eric M.

Gaier, who will testify to “[i]Jnjury, causation, and damages.”

(Amex’s Trial Witness List (Dkt. 258-2) at 5; Pls.’ Second Mot. at

1.) Plaintiffs contend that Drs. Emch and Bernheim are likely to

testify on the “[o]verlapping” issue of competitive effects, which

“entails examining both anticompetitive harms and any procom-

petitive benefits of a restraint.” (Pls.’ Second Mot. at 3.)

Additionally, Plaintiffs assert that Drs. Gaier and Bernheim may

offer “overlapping testimony” on the issue of surcharging, includ-

ing whether surcharging “is beneficial, detrimental, or neutral for

competition.” Id.) Plaintiffs cite the Doctors’ respective expert

reports in support of their concerns that the experts will need-

lessly present cumulative evidence. (Id. at 3-4.) Plaintiffs assert

that duplicative testimony from these experts “would provide

Amex with an unfair advantage,” allowing the jury to hear “two

experts for Amex addressing the same core questions, while the

jury only hears from one expert for Plaintiffs.” id.) Thus, Plain-

tiffs request that the court “enter an Order barring [Amex] from

eliciting cumulative expert testimony.” (Id. at 5.)

Amex opposes Plaintiffs’ motion on three bases. First, Amex as-

serts that because Amex’s experts have yet to testify, the extent

of overlap in their testimony, if any, is unknown. (Amex’s Second

Opp. at 1.) Therefore, Amex claims that there is no live dispute

regarding this issue. (Id.) Second, Amex argues that the opinions

offered by Drs. Emch, Bernheim, and Gaier are not duplicative.

Ud.) According to Amex, Dr. Emch will opine that Dr. Lamb,

Plaintiffs’ expert, fails to demonstrate that Amex’s NDPs have a

substantial anticompetitive effect in the relevant market, while

Dr. Bernheim will opine that Amex’s NDPs actually have procom-

petitive effects, and Dr. Gaier will criticize Dr. Lamb’s theory of

injury and damages. (Id. at 2-4.) Third and finally, Amex con-

tends that, to the extent the experts may “refer to similar

foundational terms and principles” in their testimony, “some du-

plication does not render an expert’s testimony needlessly

cumulative pursuant to [FRE] 403.” (Id. at 1, 9.) Amex represents

that it “has no plans to present unnecessarily duplicative testi-

mony.” (id. at 4.)

“The court may exclude relevant evidence if its probative value

is substantially outweighed by a danger of . . . unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting

time, or needlessly presenting cumulative evidence.” Fed. R.

Evid. 403. “Evidence is cumulative when it replicates other ad-

mitted evidence, and the exclusion of relevant, but cumulative,

evidence is within the discretion of the trial court.” United States

y. Jamil, 707 F.2d 638, 643 (2d Cir. 1983). When multiple expert

witnesses express the same opinion on a subject, such testimony

“is a waste of time and needlessly cumulative.” On Track Innova-

tions Ltd. v. T-Mobile USA, Inc., 106 F. Supp. 3d 369, 414

(S.D.N.Y. 2015). It also “raises the unfair possibility that jurors

will resolve competing expert testimony by ‘counting heads’ ra-

ther than evaluating the quality and credibility of the testimony.”

Id.

The court will not preclude the anticipated testimony of Drs.

Emch, Bernheim, or Gaier at this time. The court agrees with

Amex that Plaintiffs’ motion is premature. Regardless of the in-

formation contained in their respective expert reports, Drs.

Emch, Bernheim, and Gaier have yet to testify. It is therefore un-

known whether the overlap in their reports, if any, will

materialize in their testimony at trial. As of now, Amex represents

that its experts will opine on distinct topics—Dr. Emch on the

issue of “substantial anticompetitive effect,” the first element of

the three-step, burden-shifting rule of reason framework; Dr.

Bernheim on the issue of “procompetitive rationale,” the second

element of the rule of reason framework; and Dr. Gaier on the

issue of Dr. Lamb’s theory of injury and damages. See Ohio, 585

U.S. at 541-42 (outlining the burden-shifting framework).

(Amex’s Second Opp. at 2-4; see also Amex’s Trial Witness List at

5.)

The court disagrees with Plaintiffs that Dr. Emch, in opining on

the first element of the burden shifting framework, “necessarily

addresses the procompetitive side of the ledger.” (Pls.’ Second

Mot. at 3.) And the fact that the term “surcharging” appears 120

times in Dr. Gaier’s report and 94 times in Dr. Bernheim’s report

does not necessarily mean that both experts will “delve into sur-

charging” at trial. (Id.) Until Amex’s experts actually seek to offer

needlessly cumulative opinions at trial, the court will not

preemptively limit their testimony. See Jamil, 707 F.2d at 643

(“At this stage of the litigation, when the trial has not yet com-

menced and no evidence has yet been put before a jury, it is

premature to conclude that this evidence is cumulative.”); Ali v.

Connick, No. 11-CV-5297 (NGG) (VMS), 2016 WL 3002403, at

*11 (E.D.N.Y. May 23, 2016) (“[A]t this time it is impossible to

know whether one witness’s testimony will be cumulative of an-

other witness’s because neither has testified. . . . If it turns out at

trial that the testimony of Plaintiffs [witnesses] is cumulative,

Defendants may raise their objection then.”); Aristocrat Leisure

Ltd. v. Deutsche Bank Trust Co. Ams., 262 F.R.D. 293, 299

(S.D.N.Y. 2009) (“[I]t is difficult to determine whether testimony

will be cumulative or irrelevant before it is actually proffered.”).

Furthermore, Plaintiffs’ requested relief—an order “barring

[Amex] from eliciting cumulative expert testimony’—is vague

and overly broad. (Pls.’ Second Mot. at 5.) Were the court to issue

such an order, Amex would likely struggle to determine how it

should comply. And as Amex points out, some overlap in testi-

mony does not necessarily render that testimony needlessly

cumulative under FRE 403. See, e.g., Guardino v. Alutiig Diversi-

fied Servs., LLC, 457 F. Supp. 3d 158, 164 (N.D.N.Y. 2020)

(noting that certain expert opinions, “although they may overlap,

would not be needlessly cumulative”). Plaintiffs’ requested relief

would prohibit any cumulative testimony, a remedy not war-

ranted under the Rules of Evidence.

At the same time, the court is sensitive to Plaintiffs’ concerns. The

court takes seriously the risk that jurors “will resolve competing

expert testimony by ‘counting heads’ rather than evaluating the

quality and credibility of the testimony.” On Track Innovations,

106 F. Supp. 3d at 414. Ultimately, if Amex wishes to present in

three witnesses opinions that could be presented in one, that is

its prerogative (within the time limits agreed upon by the parties

in their joint pretrial submission). But the court will not allow

needlessly cumulative testimony at trial, especially from experts.

As such, while the court is prepared to preclude needlessly cu-

mulative expert testimony at trial, because it is unclear what that

testimony will entail, Plaintiffs’ second motion in limine is denied

without prejudice to renewal.

C. Third-Party Publications

Third, Plaintiffs request that the court preclude Amex from “us-

ing” 123 documents with their experts on direct examination,

including: 13 third-party publications “that were not previously

disclosed as a source relied upon by Amex’s experts in forming

their previously disclosed opinions”; and 110 articles “that on

their face cannot qualify as learned treatises under Rule

803(18).” (Pls.’ Third Mot. at 1; see also Third-Party Publications

(Dkt. 262-1) (containing first category of documents); Article

Exs. (Dkt. 262-2) (containing second category of documents).)

Plaintiffs also “call attention” to a third group of documents: over

100 articles “that Plaintiffs will likely object to... as lacking the

foundation to qualify as learned treatises”; although Plaintiffs do

not request preclusion of those documents at this juncture. (Pls.’

Third Mot. at 1; see also Remaining Article Exs. (Dkt. 262-3)

(containing third category of documents).) The court considers

the first two groups of documents in turn.?

1. First Group of Documents

Plaintiffs ask the court to preclude Amex “from reading into evi-

dence or soliciting testimony on direct examination from” 13

third-party publications “that were not previously disclosed as a

source relied upon by Amex’s experts in forming their previously

disclosed opinions.” (Pls.’ Third Mot. at 3; see Third-Party Publi-

cations (containing first category of documents).) Plaintiffs

characterize Rule 803(18) (A) of the Federal Rules of Evidence as

permitting a learned treatise to be read into evidence if an expert

“relied on” that document during their direct examination. (Pls.’

Third Mot. at 3.) Plaintiffs argue that Amex cannot meet this

standard as to the 13 challenged documents because Amex’s ex-

perts did not disclose those documents as relied upon in their

expert reports. Ud.) Plaintiffs assert that allowing an expert to

rely upon a document on direct examination that he did not dis-

close as relied upon in his expert report would also violate the

disclosure requirement of Rule 26(a)(2)(B) of the Federal Rules

3 The court does not consider the third group of documents, as the parties

agree that the court should not “decide the issue of admissibility until and

unless Amex offers [those] documents at trial.” (Pls. Third Mot. at 5;

Amex’s Third Opp. at 1 n.1,)

of Civil Procedure (“FRCP”) and would “amount to offering un-

disclosed information at trial” in violation of FRCP 37(c)(1). Ud.)

As such, Plaintiffs contend that the court should preclude Amex

from using “any [of these 13 documents] with one of its experts

on direct examination if that document was not relied on by that

expert.” (Id. at 4.)

Amex opposes Plaintiffs’ request on three bases. (Amex’s Third

Opp. at 7-8.) First, Amex points out that 3 of the 13 objected-to

articles were previously disclosed as relied upon by Amex’s ex-

perts. Ud. at 7 n.19.) Second, Amex argues that Plaintiffs

“wrongly assume” that Amex seeks to admit these documents

into evidence at all, and that FRE 803(18) would be the sole basis

for its doing so. (Id. at 7-8.) Amex points out that this court’s

Individual Rules require parties to disclose not only “exhibits to

be offered in evidence” but also all “possible impeachment docu-

ments and/or exhibits, as well as exhibits that will be offered only

on rebuttal.” (Id. at 1 (quoting Individual Rules of Judge Nicholas

G. Garaufis VI.A.10).) Because Amex has yet to offer these docu-

ments into evidence, Amex argues that Plaintiffs’ motion is

premature. (Id.) Finally, Amex contends that FRCP 37(c)(1), by

its own terms, permits a party to rely on previously undisclosed

information so long as the lack of disclosure was “substantially

justified” or “harmless”; which standard is met here. (Id. at 8.)

FRCP 26 provides that a testifying expert must file a report con-

taining, among other things, “a complete statement of all

opinions the witness will express and the basis and reasons for

them,” and “the facts or data considered by the witness in form-

ing [the opinions].” Fed. R. Civ. P. 26(a)(2)(B) (i); see also New

Old Music Grp., Inc. v. Gottwald, 122 F. Supp. 3d 78, 92 (S.D.N.Y.

2015) (“It should be assumed that at the time an expert issues

his report, that report reflects his full knowledge and complete

opinions on the issues for which his opinion has been sought.”).

10

The disclosure requirement “applies not only to information ac-

tually relied upon by a testifying expert, but also to information

that was not relied upon, but considered by the expert.” Schwab

v. Philip Morris USA, Inc., No. 4-CV-1945 (JBW), 2006 WL

721368, at *2 (E.D.N.Y. Mar. 20, 2006); Tikkun v. City of New

York, 265 F.R.D. 152, 155 (S.D.N.Y. 2010) (same). Additionally,

“Ta] party who has made a disclosure under Rule 26(a) .. . must

supplement or correct its disclosure” if “the party learns that in

some material respect the disclosure . . . is incomplete or incor-

rect, and if the additional or corrective information has not

otherwise been made known to the other parties during the dis-

covery process or in writing.” Fed. R. Civ. P. 26(e)(1) (A); see also

Lewis v. FMC Corp., 786 F. Supp. 2d 690, 705 (W.D.N.Y. 2011)

(“The duty to supplement arises when the expert subsequently

learns of information that was previously unknown or unavaila-

ble, and the new information renders the earlier report

incomplete or inaccurate.”).

If a party fails to provide information as required by FRCP 26(a)

or (e), “the party is not allowed to use that information or witness

to supply evidence on a motion, at a hearing, or at a trial, unless

the failure was substantially justified or is harmless.” Fed. R. Civ.

P. 37(c)(1); see also Fed R. Evid. 402 Advisory Committee Note

on Proposed Rules (“The Rules of Civil and Criminal Procedure

in some instances require the exclusion of relevant evidence.”).

“The purpose of [FRCP 37(c)(1)] is to prevent the practice of

sandbagging an opposing party with new evidence.” New Old

Music Grp., 122 F. Supp. 3d at 92. The Second Circuit reviews a

district court’s decision to preclude evidence under FRCP

37(c)(1) for abuse of discretion, guided by the following consid-

erations:

(1) the party’s explanation for the failure to comply with the

disclosure requirement; (2) the importance of the testimony

of the precluded witnesses; (3) the prejudice suffered by the

11

opposing party as a result of having to prepare to meet the

new testimony; and (4) the possibility of a continuance.

Design Strategy, Inc. v. Davis, 469 F.3d 284, 296 (2d Cir. 2006).

It is undisputed that Amex’s experts did not disclose 10 of the 13

objected-to documents as relied upon or considered authority.

Thus, Amex “is not allowed to use that information . . . to supply

evidence . . . at a trial, unless the failure [to disclose] was sub-

stantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).

Amex’s failure to disclose these documents was not substantially

justified. Amex argues that its failure to disclose DX-547, DX-549,

DX-603, DX-604, and DX-605 was justified because those docu-

ments were published after the disclosure of expert reports on

January 16, 2023. (Amex’s Third Opp. at 8.) While the court

agrees that Amex’s experts cannot be faulted for failing to dis-

close in their expert reports documents that did not yet exist,

FRCP 26(e) creates a duty to supplement a report when an expert

“learns of information that was previously unknown or unavail-

able, and the new information renders the earlier report

incomplete or inaccurate.” Lewis, 786 F. Supp. 2d at 705. Amex

provides no justification for the failure to supplement its expert

reports. Nor does Amex provide any justification for its failure to

disclose the remaining five documents, all of which were pub-

lished well before the expert disclosure date. (See generally

Amex’s Third Opp. at 8-9; Third-Party Publications.) As such,

Amex’s failure to disclose these documents was not substantially

justified.

Nor was Amex’s failure to disclose these documents harmless.

Amex argues that “all of the [challenged documents] concern

topics that Amex’s experts previously disclosed as material to

their expert opinions”; as such, “Plaintiffs can hardly claim they

would somehow be prejudiced by Amex relying on [such] arti-

cles.” (Amex’s Third Opp. at 8-9.) The court disagrees. While the

12

topics covered in the objected-to documents may not be surpris-

ing to Plaintiffs, the fact remains that these documents constitute

“new information” not previously disclosed as relied upon by

Amex’s experts. And Plaintiffs would, in fact, be prejudiced by

Amex’s experts’ reliance on these documents because Plaintiffs

and their experts would have little time to familiarize themselves

with the new information ahead of trial. This practice of “sand-

bagging” is exactly what FRCP 26 and 27 are meant to prevent.

New Old Music Grp., 122 F. Supp. 3d at 92. Thus, Amex’s failure

to disclose these documents was not harmless.

Farook v. Bailey—the sole case relied upon by Amex in opposing

Plaintiffs’ request to preclude the first group of documents—does

not convince the court otherwise. No. 5-CV-3785 (LTS) (DF),

2007 WL 2076764 (S.D.N.Y. July 16, 2007). There, defendants

requested that the court “disregard” certain evidence proffered

by the plaintiff in opposition to defendants’ motion for summary

judgment on the ground that the evidence was not previously

disclosed pursuant to FRCP 26(a) (2). Farook, 2007 WL 2076764,

at *2. The evidence included a report and several affirmations

prepared by plaintiffs experts for the purpose of opposing de-

fendants’ motion. Id. The court rejected defendants’ request to

preclude, reasoning: “Because the issues [the materials] address

were clearly known to Defendants prior to their disclosure and

the materials apparently did not exist prior to the general dead-

line for disclosure of expert materials, the Court finds that

Defendants have not been harmed by the timing of their disclo-

sure.” Id.

The circumstances in Farook are distinguishable from the present

case. In Farook, the plaintiff produced new expert material in di-

rect response to specific issues raised in defendants’ motion for

summary judgment; as such, defendants could not have been

harmed or surprised by the timing of plaintiffs disclosure, and

plaintiff could not have been expected to produce materials that

13

did not yet exist. Here, by contrast, Amex has produced new ma-

terials, not in connection with any specific arguments raised by

Plaintiffs for the first time after the expert disclosure deadline,

but in connection with Plaintiffs’ claims and Amex’s defenses

more generally, all of which have been known to the parties for

years. The excuse for and lack of prejudice in the belated disclo-

sures in Farook are simply not applicable here.* As such, the court

grants Plaintiffs’ request to preclude Amex from reading into ev-

idence or soliciting testimony on direct examination from the

following 10 documents: DX-547, DX-549, DX-552, DX-553, DX-

562, DX-563, DX-567, DX-603, DX-604, and DX-605.

As noted by Amex, either Dr. Bernheim’s or Dr. Gaier’s reports

cite the remaining 3 documents—DX-323, DX-463, and DX-470.

(See Third-Party Publications at 1; Redacted Bernheim Report

(Dkt. 184-1) at ECF p. 20 n.143 (citing DX-323); Redacted Gaier

Report (Dkt. 157-6) at ECF pp. 73 n.258 (citing DX-463), 126

n.321 (citing DX-470).) Nevertheless, Plaintiffs request that the

court “preclude Amex from using any [document] on direct ex-

amination if that document was not relied on by that expert, even

if the document was relied upon by one or more of Amex’s other

experts.” (Pls.’ Third Mot. at 4.) For the reasons articulated

4 The considerations outlined by the Second Circuit in Design Strategy, Inc.

also weigh in favor of granting Plaintiffs’ request. 469 F.3d at 296. As dis-

cussed above, Amex provides virtually no explanation for its failure to

comply with the disclosure requirements, and Plaintiffs would suffer prej-

udice from the introduction of this belatedly disclosed expert evidence.

Moreover, Amex’s assertion that the documents simply “concern topics that

Amex’s experts [already] disclosed as material to their expert opinions”

leads the court to conclude that the documents are not critical to Amex’s

expert witnesses and their respective conclusions, for which they have al-

ready provided documentary support. (Amex’s Third Opp. at 8.) Finally,

while a continuance would be possible, neither party has requested it, and

it is time for this long-running dispute to reach its conclusion. For these

additional reasons, the court concludes that preclusion is warranted under

FRCP 37(c)(1).

14

above, the court grants this aspect of Plaintiffs’ request. To the

extent a particular Amex expert did not disclose any of these doc-

uments as relied upon, Amex is precluded from reading that

document into evidence via that witness or soliciting testimony

from that witness regarding that document. See In re Omeprazole

Pat. Litig., Nos. M-21-81, 1291, 98-CV-3657 (BSJ), 98-CV-8094

(BSJ), 99-CV-8928 (BSJ), 99-CV-9888 (BSJ), 99-CV-8926 (BSJ),

99-CV-9887 (BSJ), 00-CV-4467 (BSJ), 2002 WL 287785, at *8

(S.D.N.Y. Feb. 27, 2002) (explaining that an expert “who never

opined on [certain] documents at any time before trial[] may not

now opine upon them or rely on them [at trial]”).

2. Second Group of Documents

Plaintiffs request that the court exclude entirely 110 articles “that

on their face cannot qualify as learned treatises under Rule

803(18).” (Pls.’ Third Mot. at 1; see also Article Exs. (containing

second category of documents).) Specifically, Plaintiffs contend

that these documents—published by sources like Nerdwal-

let.com, Packagedfacts.com, and The Los Angeles Times—are

“non-scholarly,” unreliable, and cannot be considered “learned

treatises” within the meaning of FRE 803(18)(A). (Pls.’ Third

Mot. at 4.) As such, Plaintiffs ask the court to exclude these “fa-

cially disqualified” exhibits in their entirety as inadmissible

hearsay. (Id. at 5.)

Amex opposes Plaintiffs’ request on four bases. (Amex’s Third

Opp. at 3-7.) First, because Amex has yet to introduce any of the

challenged documents into evidence and has not given any de-

tails about how it plans to do so, Plaintiffs’ motion is premature.

(Id. at 3.) Second, to the extent Amex offers any of the docu-

ments for their truth, FRE 803(18)(A) is not the sole basis for

their admission. Ud. at 4-5.) Third, Plaintiffs’ assertion that all

110 documents fail to satisfy the requirements of FRE

803(18) (A) is incorrect. (Id. at 5-6.) Fourth and finally, even if

15

the documents are inadmissible, FRE 703 allows an expert to re-

veal the facts or data upon which they based their opinion “if

their probative value in helping the jury evaluate the expert’s

opinion substantially outweighs their prejudicial effect.” (Id. at

6.)

The court will not preclude these 110 documents at this time.

The court agrees with Amex that Plaintiffs’ motion is premature.

As noted above, a court should exclude evidence on a motion in

limine only when the evidence “is clearly inadmissible on all po-

tential grounds.” Jean-Laurent, 840 F. Supp. 2d at 536 (emphasis

added). Even accepting Plaintiffs’ argument that these docu-

ments do not fall within the learned treatise exception to the rule

against hearsay, Plaintiffs presume that FRE 803(18)(A) is the

only avenue through which Amex may seek to admit these doc-

uments, or that Amex intends to offer these documents for the

truth of the matters asserted therein. Because Plaintiffs have not

demonstrated that these documents are clearly inadmissible on

all potential grounds, the court will not exclude entirely the 110

objected-to documents.

In sum, Plaintiffs’ third motion in limine is granted in part and

denied in part without prejudice to renewal.

D. The Class Representatives’ Adequacy

Finally, Plaintiffs request an order excluding “documents, live

and/or designated testimony, and argument relating to issues go-

ing to the Class Representatives’ adequacy,” ie., FRCP 23(a)’s

requirement that the “representative parties will fairly and ade-

quately protect the interests of the class.” (Pls.’ Fourth Mot. at 1

5 As Amex points out, this court’s Individual Rules require a party’s sched-

ule of “exhibits to be offered in evidence” to include “possible

impeachment documents and/or exhibits, as well as exhibits that will be

offered only on rebuttal.” Individual Rules of Judge Nicholas G. Garaufis

VI.A.10.

16

(citing Fed. R. Civ. P. 23(a)).) Specifically, Plaintiffs seek to pre-

clude evidence concerning the Class Representatives’: (a)

knowledge of antitrust law and the claims asserted; (b) relation-

ship to counsel; (c) circumstances of retaining counsel; and (d)

agreement with counsel on attorneys’ fees and costs. (Id.) Plain-

tiffs contend that this evidence “is irrelevant and inadmissible

under Rules 401, 402, and 403 of the Federal Rules of Evidence.”

(Id. at 1, 4.)

Additionally, Plaintiffs assert that the court should reject any ar-

gument by Amex that the above evidence is probative of the Class

Representatives’ bias. (id. at 3.) According to Plaintiffs, the Class

Representatives will testify “that they are a resident of a state and

made one or more purchases from a Qualifying Merchant located

in that state during the applicable class period, using a debit card

or non-rewards credit card.”© (Id.) Plaintiffs add that such testi-

mony “will be based on, and corroborated by, evidence of their

purchases in the form of billing statements or other documents

generated by third party financial institutions.” (Id. at 3-4.) Thus,

because the Class Representatives’ testimony “will not depend on

their memory or perception,” Plaintiffs argue that Amex’s pur-

ported evidence of bias “is irrelevant and inadmissible under

Rules 401 and 402.” Cd. at 4 (“That a class representative may

not have a firm grasp of antitrust law or may have a close per-

sonal relationship with his or her counsel does not make the fact

of qualifying purchases more or less probable.”).) Moreover, per-

mitting Amex to cross-examine the Class Representatives

regarding their personal or familial relationship with counsel

would, according to Plaintiffs, “result in confusion, delay, unfair

prejudice and waste of time in contravention of Rule 403.” (Id.)

6 On this point, Amex notes that it plans to call the Class Representatives

as witnesses, as well, to “examine them on broader issues about steering,

surcharging, rewards, their own alleged harm and other issues related to

the merits of Plaintiffs’ claims.” (Amex’s Fourth Opp. at 11.)

17

As such, Plaintiffs request that the court exclude these four cate-

gories of evidence.

Amex opposes Plaintiffs’ motion. As a preliminary matter, Amex

asserts that it “will not try the issue of Rule 23(a) adequacy to

the jury,” because “[t]hat is a question for the Court, and the

Court has answered it.” (Amex’s Fourth Opp. at 1.) However,

Amex argues that Plaintiffs’ motion should be denied as “vague

and premature” because Plaintiffs seek to use Rule 23(a) “as a

strawman to sweep in four vaguely described categories of evi-

dence.” Cd.) In any event, Amex contends that it should be

permitted to examine the Class Representatives on these subjects

because they are probative of the Class Representatives’ bias. (Id.

at 10-13.)

The court agrees with Amex that Plaintiffs seek to lump several

disparate groups of evidence under the FRCP 23(a) umbrella.

While Plaintiffs are correct that “the class representative’s ade-

quacy ... is not a fact of consequence in determining liability or

damages,” they are incorrect that the above, broadly phrased cat-

egories of evidence pertain only to the issue of class adequacy.

(Pls.’ Fourth Mot. at 2.) Rather, as Amex points out, the evidence

may go to other relevant issues like the Class Representatives’

bias. (See Amex’s Fourth Opp. at 10-13.) Thus, the court consid-

ers each group of evidence in turn.

1. Class Representatives’ knowledge of antitrust law

and the claims asserted

First, Plaintiffs request that the court preclude “documents, live

and/or designated testimony, and argument relating to” the

Class Representatives’ knowledge of antitrust law and the claims

asserted. (Pls.’ Fourth Mot. at 1.) Plaintiffs contend that “any ev-

idence that a class representative does not have a deep

understanding of the case . . . has no probative value and must

be excluded under Rules 401 and 402.” (id. at 2; see also id. at 4

18

(“That a class representative may not have a firm grasp of anti-

trust law... does not make the fact of qualifying purchases more

or less probable.”).) Amex, in addition to arguing that Plaintiffs’

request must be denied as vague and premature, asserts that it is

entitled to probe the Class Representatives’ understandings of the

factual bases for their claims. (Amex’s Fourth Opp. at 7-9.) Spe-

cifically, while Amex “will not ask Class Representatives about

their knowledge of ‘antitrust law’ or the legal basis for their

claims,” Amex asserts that Plaintiffs “must have knowledge of the

factual basis for the[ir] claims.” (Id. at 2 (emphases omitted).)

This includes “their understanding of the factual bases for their

own complaint, their experiences with surcharging, their views

on rewards programs[,] and their understanding of .. . how they

have been harmed by Amex’s NDPs”; topics about which Amex

has already elicited testimony from the Class Representatives.

Ud. at 9.)

The court denies Plaintiffs’ request to exclude all evidence con-

cerning the Class Representatives’ “knowledge of antitrust law

and the claims asserted” as overly vague. A court “may deny mo-

tions in limine that are so vague that it cannot determine whether

the disputed evidence would be inadmissible at trial.” Cantelmo

v. United Airlines, Inc., No. 17-CV-1730 (NGG) (RER), 2019 WL

13147326, at *7 (E.D.N.Y. Sept. 30, 2019) (collecting cases).

Plaintiffs’ request is vague because it does not specify “the writ-

ings or potential testimony that [they] believe should be

excluded”; as a result, the court “is unable to determine, with any

degree of certainty, whether the writings and testimony sought

to be excluded from the trial would be inadmissible under any of

the provisions of the Federal Rules of Evidence.” Viada v. Osaka

Health Spa, Inc., No. 4-CV-2744 (VM) (KNF), 2005 WL 3435111,

at *1 (S.D.N.Y. Dec. 12, 2005). Moreover, the court agrees with

Amex that it should be permitted to examine the Class Repre-

sentatives regarding the factual bases for their complaint;

19

Plaintiffs’ requested relief would seemingly prohibit such testi-

mony. As such, Plaintiffs’ request to exclude all evidence

concerning the Class Representatives’ “knowledge of antitrust

law and the claims asserted” is denied without prejudice to re-

newal.

2. Class Representatives’ relationships to counsel

Second, Plaintiffs request that the court preclude “documents,

live and/or designated testimony, and argument relating to” the

Class Representatives’ relationships to counsel. (Pls.’ Fourth Mot.

at 1.) As discussed in a previous order, several Class Representa-

tives have varying degrees of personal connections with class

counsel. Oliver, 2024 WL 100848, at *17. For example, Abigail

Baker is the niece of class counsel, Sarah Grant is a family friend

of class counsel, and Emily Counts and Debbie Tingle are em-

ployed by an attorney who is an acquaintance of class counsel.

Id. (Amex’s Fourth Opp. at 2, 5-6.) Relying on this court’s previ-

ous statement that “counsel’s relationship with certain class

members does not make the named class members inadequate,”

Plaintiffs assert that “any evidence that a class representative . . .

has a close relationship with counsel has no probative value and

must be excluded under Rules 401 and 402.” (Pls.’ Fourth Mot.

at 2 (quoting Oliver, 2024 WL 100848, at *17).)

Amex argues that evidence of the relationship between the Class

Representatives and class counsel is probative of the Class Rep-

resentatives’ bias. (Amex’s Fourth Opp. at 10.) Specifically, Amex

asserts that it should be permitted to examine the Class Repre-

sentatives about their relationships with counsel “so the jury may

consider whether the prospect of a monetary recovery for class

counsel influenced their decision to pursue their claims and offer

favorable testimony.” (Id. at 11.) Because proof of bias “is almost

always relevant [to] the jury,” Amex contends that it should be

permitted to ask the Class Representatives about their relation-

ships with counsel. (Id.)

20

Evidence is relevant if “(a) it has any tendency to make a fact

more or less probable than it would be without the evidence;”

and “(b) the fact is of consequence in determining the action.”

Fed. R. Evid. 401. All relevant evidence is admissible, except as

otherwise provided by the U.S. Constitution, federal statute, or

applicable rules. Fed. R. Evid. 402. “The Supreme Court has held

that impeachment for bias is admissible under Rule 402 even

when the impeachment material is not independently admissible

under Rule 608 as concerning the witness’s character for truth-

fulness or untruthfulness.” United States v. Figueroa, 548 F.3d

222, 229 (2d Cir. 2008). In particular, a witness’s credibility may

be attacked “by means of cross-examination directed toward re-

vealing possible biases, prejudices, or ulterior motives of the

witness as they may relate directly to issues or personalities in

the case at hand.” Fuentes v. Griffin, 829 F.3d 233, 247 (2d Cir.

2016). As the Supreme Court has explained:

Bias is a term used in the “common law of evidence” to de-

scribe the relationship between a party and a witness which

might lead the witness to slant, unconsciously or otherwise,

his testimony in favor of or against a party. Bias may be in-

duced by a witness’ like, dislike, or fear of a party, or by the

witness’ self-interest. Proof of bias is almost always relevant

because the jury, as finder of fact and weigher of credibility,

has historically been entitled to assess all evidence which

might bear on the accuracy and truth of a witness’ testimony.

United States v. Abel, 469 U.S. 45, 52 (1984); see also Fuentes,

829 F.3d at 247-48 (citing Abel’s interpretation of the definition

of bias). A successful showing of bias has “a tendency to make

the facts to which [the witness] testified less probable in the eyes

of the jury than it would be without such testimony.” Fuentes,

829 F.3d at 248. However, “[e]vidence of bias may not be admis-

sible... where its probative value is substantially outweighed by

a danger of unfair prejudice or where irrelevant to Plaintiffs

21

claims.” Ross v. Guy, No. 18-CV-1340 (WFK) (PK), 2022 WL

768196, at *5 (E.D.N.Y. Mar. 14, 2022).

The court concludes that evidence of the Class Representatives’

personal relationships with counsel is admissible for impeach-

ment purposes. The Class Representatives’ relationships with

counsel are probative of their bias because they “might lead [the

Class Representatives] to slant, unconsciously or otherwise,

[their] testimony in favor of or against a party.” Abel, 469 U.S. at

52. For example, the fact that Abigail Baker is class counsel’s

niece might cause Baker to slant her testimony in favor of Plain-

tiffs and against Amex, perhaps out of “fear” that her uncle may

begrudge her for providing unhelpful testimony, or out of a de-

sire to achieve a positive result for her uncle. Id. The same is true

of the other Class Representatives with personal ties to counsel.

This sort of evidence “is almost always relevant[,] because the

jury... has historically been entitled to assess all evidence which

might bear on the accuracy and truth of a witness’ testimony.” Id.

As such, the court will permit Amex to impeach the Class Repre-

sentatives for bias using their respective personal relationships

with counsel.

Plaintiffs’ arguments do not convince the court otherwise. The

fact that Plaintiffs intend to cabin the Class Representatives’ tes-

timony to factual matters which may be confirmed via

documentary evidence does not mean that Amex cannot inquire

into the Class Representatives’ respective biases. See United States

v. Guo, No. 23-CR-118 (AT), 2024 WL 1939221, at *7 (S.D.N.Y.

May 2, 2024) (“The law is well settled in this Circuit, as in others,

that bias of a witness is not a collateral issue and extrinsic evi-

dence is admissible to prove that a witness has a motive to testify

falsely.”). Additionally, this court’s prior decision on class certifi-

cation is inapplicable to the instant motion in limine: that the

Class Representatives’ personal relationships with counsel bore

no relevance to class members’ adequacy under FRCP 23 does not

22

necessarily mean that their personal relationships bear no rele-

vance to the question of their bias in testifying at trial. Finally,

the court is satisfied that a limited inquiry into this probative is-

sue will not unfairly prejudice Plaintiffs or confuse the jurors in

contravention of FRE 403.

For the foregoing reasons, the court will permit limited inquiry

into the Class Representatives’ respective relationships with

counsel for impeachment purposes. Plaintiffs’ request that the

court exclude all evidence concerning the Class Representatives’

relationships to counsel is therefore denied.

3. Class Representatives’ circumstances of retaining

counsel

Third, Plaintiffs request that the court preclude “documents, live

and/or designated testimony, and argument relating to” the

Class Representatives’ circumstances of retaining counsel, on the

ground that such evidence is irrelevant. (Pls.’ Fourth Mot. at 1-2

(citing In re Yasmin & Yaz (Drospirenone) Mktg., Sales Pracs. &

PMF Prods. Liab. Litig., No. 9-MD-2100 (DRH), 2011 WL

6740391, at *16 (S.D. Ill. Dec. 22, 2011)).)

Amex argues that the circumstances surrounding the Class Rep-

resentatives’ retention of counsel—specifically, the fact that class

counsel “approached Class Representatives about retaining them

and pursuing these claims”—is probative of the Class Represent-

atives’ bias. (Amex’s Fourth Opp. at 12.) In support of its

argument, Amex cites two out-of-circuit district court decisions

and one decision from the Southern District of New York. (Id. at

11-12 (citing Chavez v. Arancedo, No. 17-CV-2003, 2018 WL

4627302, at *5 (S.D. Fla. Sept. 26, 2018); In re Tableware Anti-

trust Litig., No. C-04-3514, 2007 WL 781960, at *2 (N.D. Cal.

Mar. 13, 2007); Antolini v. McCloskey, No. 19-CV-9038 (GBD)

(SDA), 2021 WL 5411176, at *10 (S.D.N.Y. Nov. 19, 2021)).)

23

Unlike their personal relationships with counsel, the circum-

stances surrounding the Class Representatives’ retention of

counsel are irrelevant to the issue of bias. As noted above, the

term “bias” describes “the relationship between a party and a wit-

ness which might lead the witness to slant, unconsciously or

otherwise, his testimony in favor of or against a party.” Abel, 469

U.S. at 52; see also Fuentes, 829 F.3d at 248 (noting that bias has

“a tendency to make the facts to which [the witness] testified less

probable in the eyes of the jury than it would be without such

testimony”). Amex does not explain how the fact that class coun-

sel approached Class Representatives to participate in this

lawsuit might lead the Class Representatives to slant their testi-

mony in favor of Plaintiffs or against Amex. Unlike their personal

relationships with counsel, which might motivate the Class Rep-

resentatives to alter their testimony in favor of their friends or

family, how counsel came to represent the Class Representatives

has no tendency to make a fact of consequence in determining

the action more or less probable. See Fed. R. Evid. 401. The fact

that class counsel approached the Class Representatives to par-

ticipate in this lawsuit is no more probative of their bias than the

simple fact that the Class Representatives are Plaintiffs, and

Amex is the Defendant. And even if such evidence bore some pro-

bative value, which it does not, its probative value would be

substantially outweighed by a risk of confusing the issues and

wasting time. Fed. R. Evid. 403. As such, Plaintiffs’ request to ex-

clude all evidence concerning the circumstances surrounding the

Class Representatives’ retention of counsel is granted.’

7 Antolini v. McCloskey—the only in-circuit case cited by either party on this

issue—does not convince the court otherwise. There, plaintiff requested

that the court preclude the defendant from inquiring as to how plaintiff

and his attorney met, on the ground that such inquiries would abridge

plaintiffs attorney-client privilege. 2021 WL 5411176, at *10. Because the

attorney-client privilege did not extend to this information, the court found

24

4. Class Representatives’ agreement with counsel on

attorneys’ fees and costs

Fourth, Plaintiffs request that the court preclude “documents, live

and/or designated testimony, and argument relating to” the

Class Representatives’ agreement with counsel on attorneys’ fees

and costs. (Pls.’ Fourth Mot. at 1.) Plaintiffs argue that such evi-

dence is irrelevant and prejudicial, citing two out-of-circuit

district court decisions and one decision from the Eastern District

of New York where the court, without explanation, excluded ref-

erence to plaintiffs’ counsel’s 25% contingency fee. (Id. at 3

(citing Pucci v. Litwin, No. 88-CV-10923, 1993 WL 405448, at *1

(N.D. Ill. Oct. 4, 1993); Bailey PVS Oxide (Delta) LLC v. Plas-

Tanks, Inc., No. 2-CV-7363, 2005 WL 1377874, at *2 (N.D. Ohio

June 6, 2005); Falise v. Am. Tobacco Co., No. 99-CV-7392 (JBW),

2000 WL 1804602, at *1 (E.D.N.Y. Nov. 30, 2000)).)

Amex argues that the Class Representatives’ agreement with

counsel regarding attorneys’ fees and costs is probative of the

Class Representatives’ bias. (Amex’s Fourth Opp. at 12.) Specifi-

cally, Amex asserts that the jury “should be permitted to hear

about how a Class Representative may be biased to testify favor-

ably because his or her counsel—in some cases, an uncle or a

lifelong family friend—stands to recover potentially millions of

dollars in fees if Plaintiffs are successful at trial.” (id. at 13.) In

support of its argument, Amex cites three out-of-circuit district

court decisions and one decision from the Northern District of

New York, where the court declined to preclude evidence or ar-

gument demonstrating that plaintiffs motive for filing suit was

purely pecuniary. (Id. at 12-13 (citing In re: EpiPen (Epinephrine

“nothing inappropriate” about defense counsel’s questions regarding how

plaintiff and his attorney met. Id. Plaintiffs have not raised an attorney-

client privilege argument here. And Antolini did not address whether the

circumstances surrounding the plaintiffs retention of counsel were proba-

tive of his bias. As such, Antolini is inapposite.

25

Injection, USP) Mktg., Sales Pracs. & Antitrust Litig., No. 17-MD-

2785, 2022, WL 226130, at *6 (D. Kan. Jan. 26, 2022); Simpson

v. Brewer, No. 19-CV-410 (NJR), 2021 WL 3511324, at *4 (S.D.

Ill. Aug. 10, 2021); Primrose v. Mellott, No. 11-CV-835, 2012 WL

3890135, at *1 (M.D. Pa. Sept. 7, 2012); Ferreira v. City of Bing-

hamton, No. 13-CV-107, 2016 WL 4991600, at *15 (N.D.N.Y.

Sept. 16, 2016)).)

The Class Representatives’ fee arrangements with counsel are ir-

relevant to the issue of bias. Amex’s sole argument in support of

its position is that, because the Class Representatives have close

personal relationships with counsel, they will be motivated to

slant their testimony to ensure counsel receives their contingency

fee. This argument is ultimately duplicative of Amex’s earlier ar-

gument, that the Class Representatives’ personal relationships

with counsel expose their potential biases. As explained above,

the court will permit Amex to examine the Class Representatives

concerning their personal relationships with counsel; thus, the

jury will understand that a win for the Class Representatives is

also a win for the attorneys who are their family or friends. Un-

like their personal relationships with counsel, however, Plaintiffs’

retainer agreements and fee arrangements have no tendency to

make a fact of consequence in determining the action more or

less probable. And even if such evidence bore some probative

value, which it does not, its probative value would be substan-

tially outweighed by a danger of unfair prejudice and confusing

the issues. See Sparano v. JLO Auto., Inc., No. 19-CV-681 (VAB),

2022 WL 266159, at *13 (D. Conn. Jan. 29, 2022) (adopting

same approach); Barbarian Rugby Wear, Inc. v. PRL USA Hold-

ings, Inc., No. 6-CV-2652 (JGK), 2009 WL 884515, at *8

(S.D.N.Y. Mar. 31, 2009) (same); Falise, 2000 WL 1804602, at

26

*1 (same). As such, Plaintiffs’ request to exclude all evidence con-

cerning the Class Representatives’ agreement with counsel on

attorneys’ fees and costs is granted.®

In sum, Plaintiffs’ fourth motion in limine is granted in part and

denied in part without prejudice to renewal.

IV. AMEX’S MOTIONS

Amex moves in limine to preclude (1) testimony and exhibits

from United States v. Am. Express Co., No. 10-CV-4496 (NGG)

(RER) (E.D.N.Y.) (the “DOJ Action”); (2) “any evidence of dam-

ages purportedly suffered by a class of plaintiffs from Alabama .

.. before January 29, 2017, as barred by the applicable statute of

limitations”; and (3) testimony of Amex’s in-house counsel, Kath-

erine Currie. (Amex’s First Mot.; Amex’s Second Mot. at 1;

Amex’s Third Mot.) The court addresses each motion in turn.

A. The DOJ Action

Amex requests that the court preclude certain testimony and ex-

hibits from the bench trial in the DOJ Action, which took place in

July and August of 2014. (Amex’s First Mot. at 1; Pls.’ First Opp.

at 1.)

Plaintiffs’ Trial Witness List indicates that they “will” or “may”

seek to introduce the prior testimony of 14 witnesses, either on

“[d]irect, impeachment or rebuttal.” (Pls.’ Trial Witness List (Dkt.

258-1) at 4-5, 7-8; Amex’s First Mot. at 3-4.) However, Plaintiffs’

8 Ferreira v. City of Binghamton—the only in-circuit case cited by Amex—

does not convince the court otherwise. There, plaintiff argued that the de-

fendants “should be precluded from introducing evidence or argument

alleging that Plaintiffs motive for filing the lawsuit was a purely pecuniary

one.” 2016 WL 4991600, at *15. The court reserved decision, reasoning

that the “[e]vidence at trial may make such argument admissible.” Id. Fer-

reira did not address whether the plaintiffs retainer agreement or fee

arrangement with counsel were probative of their bias. As such, Ferreira is

inapposite.

27

memorandum in opposition clarifies that they only plan to intro-

duce the prior testimony of 5 witnesses,’ and will not introduce

the prior testimony of the remaining 9 witnesses “unless circum-

stances arise at trial to change [their] outlook.” (Pls.’ First Opp.

at 1.) The court summarizes Plaintiffs’ proposed prior witness tes-

timony in the following chart, bolding and underlining those

witnesses who Plaintiffs “will call” via their prior testimony in the

DOJ Action:

1. Kenneth New York, | May call (desig-

Chenault — For- NY nated)

mer Chief Direct, cross, im-

Executive Officer peachment, or

rebuttal

% | 2. Jack Funda — New York, | Will call (live)

& Former Senior NY Direct, cross, im-

= | Vice President peachment, or

8 rebuttal

5 3. Joseph Rockville | May call (live or

Quagliata — For- Centre, designated)

mer Senior Vice NY Direct, cross, im-

President peachment, or

rebuttal

® Plaintiffs state that their trial witness list identifies four third-party wit-

nesses as those who they “will call”; however, in a footnote, Plaintiffs note

that they plan to introduce the testimony of Frank Bruno, the Treasury

Director of Crate & Barrel, bringing the count up to five. (Pls.’ First Opp. at

1n.1.)

10 (See Pls.’ First Opp. at 1 n.1 (stating that Plaintiffs intend to compel Mr.

Funda’s attendance at trial rather than introduce his former trial testi-

mony).)

28

4. Joshua Silver- | New York, | May call (live or

man — Former NY designated)

President of Con- Direct, cross, im-

sumer Products peachment, or

and Services rebuttal

5. Nina Biornstad | Rye, NY May call (live or

— Vice President, designated)

2 Mastercard Direct, impeach-

a ment, or rebuttal

8 6. Roger River- Will call (desig-

= Hochschild — For- | woods, IL | nated)

| mer Chief . Direct, impeach-

5 | Executive Officer, ment, or rebuttal

&, | Discover

5 7. Bradford Mor- | Denton, May call (desig-

v gan — Former Vice | TX nated)

President, Visa Direct, impeach-

ment, or rebuttal

8. Frank Bruno-— | Unknown | Will call (desig-

Treasury Director, nated)1!

Crate & Barrel Direct, impeach-

3 ment, or rebuttal

& | 9. Dwaine Kim- Atlanta, Will call (desig-

£ met — Treasurer GA nated)

= and Vice Presi- Direct, impeach-

dent, Home Depot ment, or rebuttal

10. Deidre O’Mal- | St. Paul, Will call (desig-

Ss ley — Senior MN nated)

Director of Pay- Direct, impeach-

ment Acceptance, ment, or rebuttal

Best Buy

1 (See Pls,’ First Opp. at 1 n.1 (stating that Plaintiffs intend to introduce

Mr. Bruno’s former trial testimony).)

29

11. Christopher Frisco, TX | May call (desig-

Priebe — Director nated)

of Payment Strat-

egies, Southwest ment, or rebuttal

Airlines

12. Jeffrey Rein- | Tucson, Will call (desig-

Former Chief Ex- | AZ nated)

ecutive Officer, Direct, impeach-

Walgreens ment, or rebuttal

13. John Robin- Haddon May call (desig-

son — Treasurer, Heights, nated)

Ikea North Amer- | NJ Direct, impeach-

ica ment, or rebuttal

Managing Direc- | Park, WA | nated)

tor, Alaska Direct, impeach-

Airlines ment, or rebuttal

Additionally, Plaintiffs’ exhibit list includes 40 exhibits from the

DOJ Action. (Pls.’ Trial Exs. with Objs. (Dkt. 258-6) at 2-4 (listed

as PX-71-PX-110).) However, Plaintiffs represent that they ex-

pect to offer only 2 of these 40 exhibits into evidence: PX 82

(formerly DOJ PX 75) and PX 84 (formerly DOJ PX 1285). (Pls.’

First Opp. at 2 n.3.) The court admitted PX 82 and PX 84 into

evidence at the DOJ trial via the testimony of Roger Hochschild,

Discover’s former CEO. (Id.) PX 82 is an April 27, 2001 presenta-

tion from Discover and Morgan Stanley titled “Merchant Pricing

Strategy.” (See DOJ PX 75.) PX 84 is an October 15, 2007 presen-

tation from Discover titled “Pricing & Product Strategy.” (See DOJ

PX 1285.)

Amex argues that the court should preclude the above testimony

and exhibits pursuant to FRE 402, 403, and 802. (Amex’s First

Mot. at 1.) Plaintiffs oppose Amex’s motion. (Pls.’ First Mot. at

30

1.) The court considers each basis for preclusion in turn and con-

cludes that the questionable probative value of this evidence is

substantially outweighed by a danger of unfair prejudice, confus-

ing the issues, and wasting time. Thus, the court grants Amex’s

request to preclude the above-identified testimony and exhibits

pursuant to FRE 403.

1. Rule 402

Amex argues that the testimony and exhibits from the DOJ Ac-

tion are irrelevant because they are over a decade old and “the

competitive landscape for electronic payments has changed dras-

tically in the last 15-20 years.” (Amex’s First Mot. at 5.)

Additionally, Amex asserts that the DOJ Action “focused on fun-

damentally different issues than those presented by Plaintiffs’

case.” (Id. at 6-7.) In particular, while Plaintiffs’ case “focus[es]

almost exclusively on surcharging,” the DOJ Action “expressly

did not challenge Amex’s NDPs as they related to merchants’ abil-

ities to impose differential surcharges.” (Id. at 6.) Additionally,

Amex contends that while the DOJ Action focused on just one

side of the two-sided market, Plaintiffs define the relevant market

as “the market for two-sided general purpose credit and charge

card transactions,” which focuses on both the merchant and card-

holder sides of the two-sided market. (Id. at 7.) Thus, Amex

asserts that the testimony and exhibits from the DOJ Action are

irrelevant to the present case.

Plaintiffs contend that the prior testimonies of the 5 witnesses

they “will call’—representatives of third-parties like Discover,

Home Depot, and Best Buy—are relevant because each witness

testified to the effects of Amex’s anti-steering rules, an issue of

importance in this case, and those rules and the corresponding

anticompetitive landscape “have not changed in any material

way” since the DOJ Action. (id. at 5-14.) Specifically, Plaintiffs

assert that while the DOJ Action did not seek to enjoin surcharg-

ing, each witness testified that merchants’ inability to steer

31

customers resulted in higher credit-card acceptance costs on the

merchant side and prevented card companies like Discover from

pursuing certain strategies. (Id. at 5.) Therefore, Plaintiffs con-

tend that the prior testimony is relevant to prove the effects of

Amex’s anti-steering rules on third-parties. (Id. at 5-7.) Further-

more, Plaintiffs argue that the competitive landscape and Amex’s

business model remain “materially unchanged” from the 2014

DOJ Action to the class periods in this case, which run from 2015

to 2022." (Id. at 8-14.) For example, according to Plaintiffs, as

in 2014, there are only four U.S. credit card networks: Visa, Mas-

tercard, Amex, and Discover, (Jd. at 8.)

_ (Id.) Thus, because the competitive land-

scape and Amex’s business model remain materially unchanged,

Plaintiffs argue that certain witnesses’ prior testimony is relevant

to this case. (Pls.’ First Opp. at 9-14.)

January 2024, the court certified two groups of classes pursuant to

FRCP 23(b)(3): debit cardholder classes in Alabama, the District of Colum-

bia, Illinois, Kansas, Maine, Mississippi, North Carolina, Ohio, Oregon, and

Utah; and non-rewards credit cardholder classes in the District of Colum-

bia, Illinois, and Kansas. Oliver, 2024 WL 100848, at *13, *28; Oliver, 2024

WL 217711, at *1. The court certified the following class periods: for the

Illinois, Kansas and Mississippi Plaintiffs, from January 29, 2016 to June 1,

2022; and for the remaining Plaintiffs (Alabama, D,C., Maine, North Car-

olina, Oregon and Utah), from January 29, 2015 to June 1, 2022. 2024

WL 100848, at *13 n.11, *28; Oliver, 2024 WL 217711, at *1.

13 The foregoing two sentences contain material designated confidential or

highly confidential by Amex under the Protective Order entered in this

case; as such, these sentences have been redacted from the public version

of this Memorandum and Order. (See Protective Order (Dkt. 47-1).)

32

The court concludes that the testimony and exhibits from the

DOJ Action are of questionable probative value to the issues in

this litigation. It is generally true that this action and the DOJ

Action focus on a similar issue: the effects of Amex’s anti-steering

rules. But even accepting that Amex’s anti-steering rules are the

same as in 2014, it is not necessarily true that the effect of those

rules on merchants and card companies like Discover have re-

mained unchanged throughout the class periods in this case. For

example, Roger Hochschild, the former CEO of Discover, testified

at the DOJ trial as follows:

Q When Discover sets prices for its credit card network ser-

vices for merchants, does it consider the prices of the debit

card networks?

ANo.

Q When setting credit card network prices for merchants,

which competitors[’] prices does Discover look to?

A Discover looks to the pricing of Visa, MasterCard, and

American Express’ credit card volumes.

Ud. at 9-10.) Plaintiffs contend that the above testimony is pro-

bative of the lack of interchangeability of credit and debit cards

on the merchant side of the two-sided market. (Id. at 9.) How-

ever, to the extent Hochschild testified to Discover’s business

practices at the time, his testimony is not necessarily probative of

Discover’s business practices throughout the class periods in this

case. Put another way, Hochschild’s testimony is outdated; it

33

therefore bears little probative value to the issue of card compa-

nies’ reactions to Amex’s anti-steering rules throughout the class

periods in this case.'4

The testimonies of the merchant-witnesses suffer from similar is-

sues. Consider the following exchange between counsel and

Frank Bruno, the Treasury Director of Crate & Barrel:

Q So would Crate & Barrel consider steering or promoting to

other general purpose credit cards?

A Yes, if we were given the opportunity, that’s—yes.

Q You just said if you were given the opportunity. What do

you mean by that?

A Well, we’re precluded from steering to date with the mer-

chant regulations.

Q Are you talking about AMEX’s—American Express’s mer-

chant regulations?

A Yes, I am.

Q Has Crate & Barrel considered ways that it might steer to

other general purpose credit cards?

14 The remaining excerpts from Hochschild’s testimony—all of which

speak to Discover’s then-current understandings of the competitive land-

scape and how it would react to certain changes in that landscape—are

also of questionable probative value to Discover’s reaction to Amex’s anti-

steering policies throughout the class periods in this case. (See Pls.’ First Opp.

at 10 (“Q When were the Durbin related pricing changes for debit imple-

mented? A I think it would have been late 2011 or early 2012. Q Did

Discover observe any substitution between debit cards and credit cards fol-

lowing the Durbin price changes? A No.”); id. at 10-11 (“Q If merchants

are able to steer volume from competitor cards to Discover cards, could

Discover increase its sales volume among merchants? A Yes. Q And is Dis-

cover able to do that today? A No.” (emphasis added)); id. at 11 (excerpt

of colloquy where counsel asked, “how would Discover act?” if presented

with various circumstances).)

34

A Sure. I mean, I would—yes.

Q Can you tell me what Crate & Barrel has considered.

A Sure. I mean, I think what we would look to do is to culti-

vate and enrich a larger partnership with a specific card

brand. We would most likely introduce some competition.

We would put out an RFP for not only a preferred merchant

card-related status with our company, but we have a wide

array of other book of business and services that we could

utilize with card companies. So I could very well see that we

would put up RFPs, let the various general purpose card

companies know what our total array of offerings look like

that we could work together to cultivate a larger partnership

and an opportunity for hopefully some concession pricing

that we could, you know, then look to return some of those

savings to our customers.

Q Would Crate & Barrel consider partnering with any of the

credit card networks that it currently works with?

A Yes.

Q Including American Express?

A Yes.

Ud. at 11-12.) Plaintiffs contend that Bruno’s testimony is proba-

tive of “anti-steering rules’ effect on merchant-side competition

and ... of [the] likelihood of [the] fact of pass-through of

changes in credit card acceptance costs into retail prices.” (Pls.’

Sealed First Opp. at 11-12.) However, as with Hochschild, to the

extent Bruno testified regarding the effect of Amex’s rules on

Crate & Barrel in 2014, his testimony is not necessarily probative

of the effect of Amex’s rules on Crate & Barrel throughout the

class periods in this case. Likewise, that Crate & Barrel “would”

have taken a particular course of action in 2014 does not neces-

sarily mean that it would take the same course of action if

35

presented with similar circumstances in 2025, or even in January

2015. In other words, because Bruno’s testimony is outdated, it

bears little probative value to the issue of the effects of Amex’s

anti-steering rules on merchant-side competition during the class

periods in this case. The excerpts of Kimmet’s!> and O’Malley’s!®

testimonies implicate similar staleness concerns. As such, the

court concludes that the outdated prior witness testimony is of

minimal probative value.'”

15 (See, e.g., Pls.’ First Opp. at 12-13 (“Q How much did Home Depot pay

last year to accept general purpose credit cards? A We paid roughly half a

billion dollars. Q That was just for one year? A Correct. Q How does that

roughly half a billion dollars that Home Depot spent to accept general pur-

pose credit cards compare to some of Home Depot’s other operating

expenses? A It is clearly one of our most significant costs.” (emphases

added)); id. at 13 (responding to the question “If Home Depot could re-

duce its costs of accepting general purpose cards, what would it do with

the savings?”).)

16 (See, e.g., Pls.’ First Opp. at 14 (“Q Without stating any numbers, how

does Best Buy's costs of acceptance of debit compare with its cost of ac-

ceptance of credit? A It is much lower. Q So has Best Buy ever considered

accepting only debit card and not credit cards? A No, we have not.” (em-

phases added)); id. (“Q Are you permitted to have a broader preference

campaign with MasterCard today under the treatment provision of your

AmEx agreement? A No. Q Why would partnering with, for example, Mas-

terCard be an attractive proposition for Best Buy? AI am sure there would

be some financials included with that. Q It might save you some money?

A Yes. Q If you are able to save money on the cost of acceptance, for ex-

ample, what would you do with those savings? A Get passed on to the

consumer.” (emphases added)).)

17 The court cannot assess with particularity the testimony of the remain-

ing 10 witnesses, including the prior testimony of Jeffrey Rein, because

Plaintiffs have not provided excerpts of the portions of testimony they may

seek to introduce. However, the court suspects that the remaining wit-

nesses’ testimonies raise similar staleness concerns. Ultimately, the court

need not rule decisively on the relevance of each witness’s testimony be-

cause the court concludes that said testimony should be precluded under

FRE 403.

36

The exhibits are even more outdated. PX 82 and PX 84 are

presentations prepared by Discover and Morgan Stanley in 2001,

and Discover in 2007, respectively, concerning Discover’s and

Morgan Stanley’s “Merchant Pricing” and Discover’s “Pricing &

Product” strategies as of those years. (See DOJ PX 75; DOJ PX

1285.) Plaintiffs argue that these exhibits “are made admissible

by the designated prior trial testimony [of Hochschild], which

laid the proper foundation for admissibility.” (Pls.’ First Opp. at

2 n.3.) But Plaintiffs do not explain how these roughly twenty-

year-old exhibits are relevant to the issues in this trial, including

the effects of Amex’s anti-steering rules on merchants and card

companies during the relevant class periods. (See Pls.’ First Opp.)

That Discover adopted certain strategies in 2001 and 2007 in re-

sponse to Amex’s policies does not necessarily mean that

Discover adopted those same strategies at any point during the

class periods in this case. As such, the court concludes that PX 82

and PX 84 are of minimal probative value.!®

In sum, the court concludes that the testimony and exhibits from

the DOJ Action are minimally relevant to this action because they

are outdated. While the court might exclude the evidence on this

basis alone, the court finds that FRE 403 provides the stronger

basis for preclusion.

2. Rule 403

Amex argues that any probative value of the testimony and ex-

hibits from the DOJ Action is substantially outweighed by a

danger of unfair prejudice, confusing the issues, and wasting

time. (Amex’s First Mot. at 7-13.) Amex points out that the par-

ties agreed not to introduce evidence of the existence of other

18 The court cannot assess with particularity the remaining 38 exhibits, alt-

hough it suspects that they implicate similar staleness concerns. Ultimately,

the court need not rule decisively on the relevance of each exhibit, because

the court concludes that the exhibits from the DOJ Action should be pre-

cluded under FRE 403.

37

actions against Amex, including the DOJ Action. (Stipulation &

Order (Dkt. 267) at 2.) However, Amex contends that introduc-

tion of the prior testimony and exhibits “would necessarily reveal

the existence of the DOJ Action to the jury,” causing undue prej-

udice to Amex. (Amex’s First Mot. at 10.) Additionally, Amex

argues that evidence from the DOJ Action would confuse the jury

and waste time in numerous respects. (Id. at 11.) First, someone

would have to read the testimony into the record, taking up time

and introducing additional disputes regarding “the persons read-

ing the testimony and their demeanor, tone[,] or inflection.” (Id.)

Second, introduction of the prior testimony and exhibits “risks

diversions and minitrials” into the context of that evidence. (Id.)

Third, because the testimony and exhibits predate the class peri-

ods in this case, there is a substantial risk that the jury will be

presented with outdated information. (Id. at 11-12.) As such,

Amex requests that the court preclude the testimony and exhibits

from the DOJ Action pursuant to FRE 403.

Plaintiffs argue that FRE 403 does not bar testimony or exhibits

from the DOJ Action. (Pls.’ First Opp. at 15-17.) First, they assert

that admission of this evidence will not necessarily alert the ju-

rors to the existence of the DOJ Action: the court “can give a brief,

neutral explanation for the existence of prior testimony that pre-

vents the jury from learning about the prior lawsuit,” and can

“cover[] ... up or whit[e] .. . out” old trial exhibit stamps. (Id.

at 15-16.) Second, Plaintiffs contend that testimony from the

DOJ Action will not confuse the jurors any more than “other prior

testimony that may be published to the jury.” (id. at 17.) Finally,

Plaintiffs represent that the portions of testimony they anticipate

using at trial “will not require an inordinate amount of time,” and

will, in any event, remain within the 35-hour time limit agreed

upon by the parties. (Id.)

Relevant evidence may be excluded if its probative value is sub-

stantially outweighed by a danger of, among other things, unfair

38

prejudice, confusing the issues, or wasting time. Fed. R. Evid.

403. In general, “courts are reluctant to cloud the issues in the

case at trial by admitting evidence [from a] previous litigation

involving one or both of the same parties.” Arlio v. Lively, 474

F.3d 46, 53 (2d Cir. 2007). This is because admitting such evi-

dence “inevitably results in trying those cases before the jury,”

and “the merits of the other cases would become inextricably in-

tertwined with the case at bar.” Id. Thus, “[c]ourts in this circuit

generally preclude evidence of other lawsuits, both related and

unrelated to the case before the court, due to concerns of confus-

ing the jury and unfairly prejudicing defendants.” Hettiarachchi

v. Cnty. of Suffolk, No. 14-CV-6731 (DLD (SJB), 2023 WL

6283287, at *4 (E.D.N.Y. Sept. 25, 2023); see also Thompson v.

Spota, No. 14-CV-2473 (NGG) (AYS), 2022 WL 17253464, at *9

(E.D.N.Y. Nov. 28, 2022) (same) (collecting cases); MF Glob.

Holdings Ltd. v. PricewaterhouseCoopers LLP, 232 F. Supp. 3d 558,

568 (S.D.N.Y. 2017) (excluding evidence from prior litigation be-

cause the jury “could easily confuse any evidence regarding the

merits of the [prior action] with the merits of this case, causing

undue prejudice to the [party seeking to exclude such evi-

dence]”); Birch v. Town of New Milford, No. 20-CV-1790 (VAB),

2025 WL 289205, at *15 (D. Conn. Jan. 24, 2025) (excluding

“any evidence, reference, or testimony related to” a settlement

agreement with certain defendants because “the claims against

[those defendants] are so inextricably tied with the claims

headed to trial against the [remaining defendants]” that there is

a risk the jury “might feel a strong compulsion to conform their

verdict with that of the settlement”); Aghaeepour v. N. Leasing

Sys., Inc., No. 14-CV-5449 (NSR), 2024 WL 2700564, at *8

(S.D.N.Y. May 24, 2024) (excluding evidence from prior litiga-

tion where “[t]he jury could easily confuse the merits of the

instant action with litigation arising from the same alleged

scheme”).

39

The court concludes that the minimal probative value of the tes-

timony and exhibits from the DOJ Action is substantially

outweighed by a danger of unfair prejudice, confusing the issues,

and wasting time. See Fed. R. Evid. 403.

Introducing evidence from the DOJ Action runs a substantial risk

of alerting the jury to the existence of that action, which the par-

ties agreed not to do, and which would cause Amex undue

prejudice. Plaintiffs assert that the parties can avoid revealing the

existence of the DOJ Action by providing a “neutral explanation

for the existence of prior testimony” and whiting out old exhibit

stamps. (Pls.’ First Opp. at 15.) This argument, however, pre-

sumes that Amex will not seek to contextualize the prior

testimony and exhibits, which may necessitate divulsion of the

existence of the DOJ Action and its ultimate outcome. (See

Amey’s First Mot. at 11 (“[I]ntroducing this evidence risks diver-

sions and minitrials into what the prior context was about... .

Here, would the jury hear about the Second Circuit decision?

About the Supreme Court decision? About subsequent litigation

and developments in the many years since?”).) Admitting this

evidence would put Amex between a rock and a hard place: ei-

ther Amex would have to avoid disclosing the existence of the

DOJ Action, thereby forfeiting its opportunity to contextualize

the prior testimony and exhibits, or it would have to expose the

existence of the DOJ Action in order to provide the context it

deems necessary, prejudicing itself via the revelation of the prior

lawsuit. Either way, introduction of this evidence poses a sub-

stantial risk of unfair prejudice to Amex that cannot be justified

given the minimal probative value of the evidence. See Het-

tiarachchi, 2023 WL 6283287, at *4 (“Courts in this circuit

generally preclude evidence of other lawsuits, both related and

unrelated to the case before the court, due to concerns of confus-

ing the jury and unfairly prejudicing defendants.”).

40

Admission of this evidence also runs a substantial risk of confus-

ing the issues and wasting time. As noted by Amex, reading the

prior testimony into the record would take time and might intro-

duce additional disputes regarding the speaker’s demeanor and

tone. Furthermore, introduction of prior testimony and exhibits

would almost certainly lead to diversions and minitrials into the

context of that evidence and the merits of the DOJ Action more

broadly. This is exactly why courts preclude evidence from prior

lawsuits: it “inevitably results in trying [the prior] case[] before

the jury.” Arlio, 474 F.3d at 53. Not only would such diversions

waste time, but they would also risk confusing the jury as to the

issues at stake in this litigation. As Plaintiffs recognize in their

memorandum in opposition, the claims against Amex in the DOJ

Action are inextricably tied with the claims headed to trial now.

In such circumstances, there is a substantial risk that the jury

might “confuse any evidence regarding the merits of the [DOJ

Action] with the merits of this case,” MF Glob., 232 F. Supp. 3d

at 568, or “feel a strong compulsion to conform their verdict with

that of the [DOJ Action],” Birch, 2025 WL 289205, at *15. Thus,

the court concludes that allowing Plaintiffs to introduce evidence

from the DOJ Action “would improperly turn the trial into a

multi-ringed sideshow of mini-trials on collateral issues that

would cause confusion and undue delay.” United States v. O’Sul-

livan, No. 20-CR-272 (PKC), 2021 WL 1979074, at *12 (E.D.N.Y.

May 18, 2021).

In sum, because the minimal probative value of the DOJ Action

evidence is substantially outweighed by a danger of unfair prej-

udice, confusing the issues, and wasting time, the objected-to

evidence is precluded in its entirety pursuant to FRE 403. Be-

cause FRE 403 provides the basis for preclusion, the court need

not address the parties’ remaining arguments regarding FRE 802.

See United States v. Bourne, No. 8-CR-888 (NGG) (VVP), 2011

WL 4458846, at *16 (E.D.N.Y. Sept. 23, 2011) (“The court need

41

not address the admissibility of testimony about this incident un-

der 404 or otherwise, because Rule 403 precludes its

admission.”). Amex’s first motion in limine is granted.

B. The Alabama Class

Amex requests that the court preclude evidence of damages suf-

fered by the certified class of plaintiffs from Alabama (the

“Alabama Class”) before January 29, 2017, on the ground that

such evidence is barred by the applicable statute of limitations.

(Amex’s Second Mot. at 1.) Specifically, Amex points out that the

statute of limitations for antitrust claims under Alabama law is

two years. (Id. at 2.) As such, Amex contends that to the extent

Plaintiffs’ damages estimate for the Alabama Class includes trans-

actions that occurred before January 29, 2017, those claims are

time-barred, and the court should exclude any evidence concern-

ing those transactions pursuant to FRE 402 and 403.19 (Id. at 3-

4.) Amex argues that it preserved this issue by raising the statute

of limitations as an affirmative defense in its Answer and again

in the parties’ Joint Pretrial Order. (Id. at 2 (citing Answer to Sec-

ond Am. Class Action Compl. (“Answer”) (Dkt. 190) at 48

(“Plaintiffs’ claims against Amex are barred by the applicable

statutes of limitation and/or repose, or the doctrine of laches.”));

Joint Pretrial Order (“JPTO”) (Dkt. 258) at 4 (same).)

Plaintiffs oppose Amex’s motion on two bases. First, Plaintiffs ar-

gue that Amex’s motion is procedurally improper because it seeks

a dispositive ruling on an affirmative defense, rather than a deci-

sion on an evidentiary issue. (Pls.’ Second Opp. at 3-4.) Second,

Plaintiffs contend that Amex waived its statute of limitations de-

fense by failing to meaningfully raise it earlier in the proceedings.

(Id. at 5-6.) In particular, Plaintiffs assert that Amex could have

19 Plaintiffs’ damages estimate for the Alabama Class begins on January

29, 2015—four years before Plaintiffs filed this lawsuit. (Amex’s Second

Mot. at 1.)

42

raised the statute of limitations issue at the class certification,

summary judgment, and class notice stages, during which the

court repeatedly confirmed that the Alabama Class period began

on January 29, 2015. Ud. at 1-2.) Additionally, Plaintiffs argue

that Amex’s “generalized assertions” of a statute of limitations

defense in its answer and the JPTO—neither of which mentions

the Alabama statute of limitations specifically—do not suffice to

preserve the defense for trial. (Id. at 5.) Finally, Plaintiffs contend

that granting Amex’s motion would cause them undue prejudice,

altering one of the certified class periods and forcing Plaintiffs’

expert to recalculate the damages estimate for the Alabama

Class. (Id. at 5-6.) As such, Plaintiffs argue that Amex’s motion

should be denied.

The court agrees with Plaintiffs that Amex’s motion is procedur-

ally improper. It is well settled that a motion in limine “is not the

proper vehicle for seeking a dispositive ruling on a claim.” Wil-

liams v. Rushmore Loan Mgmt. Servs. LLC, No. 15-CV-673 (RNC),

2017 WL 822793, at *1 (D. Conn. Mar. 2, 2017); Funk v.

Belneftekhim, No. 14-CV-376 (BMC), 2019 WL 3035124, at *4

(E.D.N.Y. July 11, 2019) (same); Simmons v. Ferrigno, No. 17-

CV-6176 (FPG), 2024 WL 1229285, at *6 (W.D.N.Y. Mar. 22,

2024) (same). While Amex frames its request as a motion in

limine, in reality, Amex seeks a dispositive ruling on its statute of

limitations defense. Such a maneuver is procedurally improper.

See Funk, 2019 WL 3035124, at *4 (“Parties may... use motions

in limine to .. . narrow the issues, shorten the trial, and save costs

for the litigants, .. . but not—as defendants attempt to do here—

as a substitute for a dispositive motion.”). Therefore, Amex’s mo-

tion to exclude evidence of alleged damages suffered by the

Alabama Class prior to January 29, 2017 is denied.

However, “courts in this Circuit .. . occasionally convert[] mo-

tions in limine into motions to dismiss or motions for summary

judgment, or simply address[] them on the merits.” Simmons,

43

2024 WL 1229285, at *6 (collecting cases); Funk, 2019 WL

3035124, at *4 (noting the same). While Amex’s motion is pro-

cedurally improper, at some point, either the court or the jury

will have to resolve the legal dispute underlying its request.

“Strictly speaking, the Court need not do so until the charge con-

ference,” but “in light of the fact that the issue may have some

bearing on the parties’ strategies at trial and may be helpful when

it comes time to discuss the jury instructions,” the court “offers

its preliminary view” that Amex has not waived its statute of lim-

itations defense. Broadspring, Inc. v. Congoo, LLC, No. 13-CV-

1866 (JMF), 2014 WL 7392905, at *8 (S.D.N.Y. Dec. 29, 2014)

(offering the court’s “preliminary view” on the merits of defend-

ants’ procedurally improper motion in limine).

At least with respect to waiver, the Second Circuit treats statutes

of limitations differently than other affirmative defenses. Two

cases underscore this point: Kulzer and Jones. In Kulzer, a wrong-

ful death action brought pursuant to a New York revival statute,?°

one of the defendants raised a general statute of limitations de-

fense in its answer but did not raise the issue again until the close

of plaintiffs proof at trial, where it moved for a directed verdict

on the ground that plaintiffs claim was time barred due to an

exception to the revival statute. Kulzer v. Pittsburgh-Corning

Corp., 942 F.2d 122, 123-24 (2d Cir. 1991). The district court

determined that the defendant waived its statute of limitations

20 A revival statute creates a time window for claimants to bring civil claims

that are otherwise time barred. See, e.g., Poppel v. Rockefeller Univ. Hosp.,

No. 19-CV-1403 (ALC), 2019 WL 3334476, at *1 (S.D.NLY. July 25, 2019)

(explaining that the Child Victims Act, enacted in 2019, “provides for a

one-year revival window during which a survivor of any age may bring

claims that were previously time-barred under the statute of limitations”);

see also Morrison v. Scotia Cap. (USA) Inc., No. 21-CV-1859 (SHS), 2023

WL 8307930, at *2 (S.D.N.Y. Dec. 1, 2023) (noting that the Adult Survi-

vors Act “created a year-long window . . . for plaintiffs to bring certain

sexual assault claims occurring in New York, even if those claims would

otherwise be time-barred.”).

44

defense by failing to plead it more specifically or to press the issue

in pretrial motions. Id. at 124. The jury returned a verdict for

defendants, but the court ultimately granted plaintiffs motion for

a new trial. Id. During the period between the first and second

trials, the same defendant moved to dismiss the complaint, again

on the ground that an exception to the revival statute rendered

plaintiffs claims time-barred. Id. The district court found that the

defendant waived its limitations defense by failing to plead it

with sufficient specificity. Id. This time, the jury returned a ver-

dict for plaintiff, and the defendant appealed to the Second

Circuit. Id.

The Second Circuit reversed, concluding that the district court’s

rationales for finding waiver—defendant’s failure to pursue the

limitations defense through pretrial motions and the “boiler-

plate” manner in which it raised the defense—did not support a

finding of waiver. Id. at 125. First, the court emphasized its hold-

ing from a prior case that a statute of limitations defense “need

not be articulated with any rigorous degree of specificity: The

defense is sufficiently raised for purposes of Rule 8 by its bare

assertion.” Id. Additionally, assertion of a statute of limitations

defense in a defendant’s answer, “rather than in its... motions

for dismissal and summary judgment,” is sufficient to render the

defense both preserved and timely. Id. As such, the court con-

cluded that “[t]he assertion of a limitations defense in the answer

preserved [the defendant’s] right to raise the defense both during

the first trial and before the second.” Id.

The Second Circuit applied the same principles in Jones. There, a

plaintiff sued her former school district in state court “for harms

she suffered after a teacher sexually abused her when she was

fifteen and sixteen years old,” pursuant to another New York re-

vival statute. Jones v. Cattaraugus-Little Valley Cent. Sch. Dist., 96

F.4th 539, 541 (2d Cir. 2024). Although the revival statute in-

cluded a six month “waiting period” that required individuals to

45

wait six months from the effective date of the statute before filing

suit, plaintiff filed suit before the conclusion of the waiting period.

Id. at 541-42. The defendant removed the case to federal court

and filed an answer asserting numerous affirmative defenses, in-

cluding a general statute of limitations defense. Id. at 541. The

parties proceeded with discovery, which continued for over two

years, until the defendant moved for summary judgment on its

statute of limitations defense, arguing that plaintiffs suit was un-

timely because it was filed before the conclusion of the waiting

period. Id. The district court agreed and granted summary judg-

ment to defendant. Id. Plaintiff appealed. Id. at 542.

The Second Circuit certified to the New York Court of Appeals

the question whether the six-month waiting period established a

statute of limitations or some other affirmative defense. Id. at

546. The court cited Kulzer for the general proposition that “a

defendant may litigate a statute-of-limitations defense even as

late as trial so long as the defense was timely asserted under Fed-

eral Rule of Civil Procedure 8(c).” Id. at 542 (citing Kulzer, 942

F.2d at 125). Although the court did not decide the merits of the

case, it opined that if the waiting period did establish a statute of

limitations, the court would affirm the district court’s grant of

summary judgment to the defendant. Id. at 545. If, however, the

waiting period did not establish a statute of limitations but some

other affirmative defense, the Second Circuit would “be com-

pelled” to “deem the affirmative defense to have been forfeited”

because the defendant “did not raise [the] waiting-period de-

fense—other than through the bare assertion of a statute of

limitations defense in its answer—until summary judgment.” Id.

at 545-46.

While the rationale behind the rule is less than obvious, the di-

rective from the Second Circuit is clear: a statute of limitations

defense is preserved and may be raised as late as mid-trial if

pleaded—even at a high level of generality—in the defendant’s

46

answer. Kulzer, 942 F.2d at 125; Jones, 96 F.4th at 545-46; see

also Colon v. Goord, 115 F. App’x 469, 470 (2d Cir. 2004) (sum-

mary order) (“Defendants have not waived their statute of

limitations defense by failing to raise it in their motion under

Rules 12(c) and 56.”). Amex met this requirement by raising the

statute of limitations as an affirmative defense in its answer and

in the parties’ JPTO. (Answer at 48; JPTO at 4.) The waiver-re-

lated cases cited by Plaintiffs—which do not grapple with the

waiver of a statute of limitations defense—are inapposite. (Pls.’

Second Opp. at 6 n.9.) As such, it appears that Amex adequately

preserved its statute of limitations defense, which may be adju-

dicated by the jury or the court, via an appropriate motion.

The court recognizes the potential unfairness of such an outcome

in these circumstances. As Plaintiffs point out, Amex had ample

opportunity to raise this issue at class certification, where the

court defined the Alabama Class period as spanning from Janu-

ary 29, 2015 to June 1, 2022, Oliver, 2024 WL 100848, at *13

n.11, 28; at summary judgment, where the court incorporated

the Alabama Class period by reference, (Summ. J. M&O (Dkt.

236) at 2); and at the class notice stage, where the court again

incorporated the Alabama Class period by reference, (Class No-

tice M&O (Dkt. 257) at 2-3.) And Plaintiffs are correct that an

alteration of the Alabama Class period will complicate their dis-

semination of notice and will require their expert to recalculate

the damages estimate for the Alabama antitrust claims. (Pls.’ Sec-

ond Opp. at 5-6.) Nevertheless, in light of Kulzer and Jones, the

court must treat Amex’s statute of limitations defense as pre-

served.

In sum, Amex’s second motion in limine is denied as procedurally

improper.

C. Katherine Currie

Finally, Amex requests “an order precluding Plaintiffs from call-

ing an Amex in-house counsel, Katherine Currie, as a witness at

47

trial.” (Amex’s Third Mot. at 1.) Ms. Currie verified Amex’s re-

sponses to Plaintiffs’ interrogatories, declaring as follows:

1. 1am Vice President & Senior Counsel in the Global Litiga-

tion & Investigations team at American Express Company. |

am authorized to execute this Verification on behalf of

[Amex]. I have reviewed Amex’s Amended Responses and

Objections to Plaintiffs’ First Set of Interrogatories and

Amex’s Responses and Objections to Plaintiffs’ Second Set of

Interrogatories (together, the “Responses”).

2. Subject to the General Objections and the specific objec-

tions set forth therein, the Responses are true to the best of

my knowledge, information and belief.

I declare under penalty of perjury that the foregoing is true

and correct.

(Currie Verification (Dkt. 266-3) { 1-2.) Plaintiffs’ Trial Witness

List states that Plaintiffs “[m]ay call” Ms. Currie to testify regard-

ing “Verified Interrogatory Answers,” either on “[d]irect, cross,

impeachment[,] or rebuttal.” (Pls.’ Trial Witness List at 5.)

Amex argues that the court should prohibit Plaintiffs from calling

Ms. Currie as a witness at trial. According to Amex, Plaintiffs plan

to solicit Ms. Currie’s testimony regarding Amex’s response to

Plaintiffs’ first interrogatory, where Plaintiffs asked Amex to

“Tdlescribe in detail how You determine the Discount Fee You

charge, and Discount Rate You apply to, merchants in the United

States to accept Your Credit and Charge cards.” (Amex’s Am.

Resps. and Objs. to Pls.’ First Set of Interrogs. (Dkt. 266-4) at ECF

p. 4.) Amex argues that its response to that question does not

require testimony from Ms. Currie, “especially given that

Monique Ouellette, Amex’s Senior Vice President of Global Mer-

chant and Network Pricing, testified [via deposition] about this

very topic,” (Amex’s Third Mot. at 3), and that Plaintiffs list Ms.

Ouellette as a witness they “[w]ill call” to discuss “any topics

48

within the scope of her. . . deposition,” (Pls.’ Trial Witness List at

5.) While “Plaintiffs have said expressly that they would not call

Ms. Currie as a witness unless Ms. Ouellette contradicts her own

deposition testimony,” Amex nevertheless asks the court to pre-

clude Plaintiffs from calling her as a witness. (Amex’s Third Mot.

at 3.) In support of its request, Amex cites and applies the factors

set forth in In re Subpoena Issued to Dennis Friedman, 350 F.3d

65, 70 (2d Cir. 2003) for determining when it is appropriate to

permit a party to depose opposing counsel. (Amex’s Third Mot. at

3-9.) Amex contends that the Friedman factors weigh against al-

lowing Plaintiffs to call Ms. Currie as a witness. (Id.)

Plaintiffs argue that Ms. Currie made herself a fact witness when

she verified Amex’s responses to interrogatories. (Pls.’ Third Opp.

at 1.) They also contend that while Ms. Currie is an attorney for

Amex, Plaintiffs “are not seeking attorney testimony,” but rather,

“testimony, if necessary, from the person who verified a key in-

terrogatory response.” (id. at 2.) In any case, Plaintiffs argue that

the Friedman factors weigh in favor of permitting Ms. Currie to

testify because she is the “only witness” who can authenticate the

interrogatory responses and Plaintiffs have “no... intention” to

elicit privileged information from Ms. Currie. (Id. at 2 n.2.) As

such, Plaintiffs assert that they “are entitled to examine Ms. Cur-

rie to introduce the responses, authenticate the responses, and

[ask] about the basis for her verification.” (Ud. at 4.) Moreover,

Plaintiffs “have identified an inconsistency” between the inter-

rogatory response verified by Ms. Currie and “other testimony

obtained in pre-trial discovery,” and Plaintiffs may wish to call □

Ms. Currie “[i]f this inconsistency emerges through live testi-

mony.” (Id. at 4-5.) Finally, Plaintiffs argue that it is premature

to preclude Ms. Currie’s testimony before Amex’s witnesses have

testified. (id. at 5.)

“The Second Circuit has not established a standard for determin-

ing when a court should allow a party to call the opposing party’s

49

counsel as a witness at trial.” Finkel v. Zizza & Assocs. Corp., No.

12-CV-4108 (JS) (ARL), 2021 WL 1375655, at *2 (E.D.N.Y. Apr.

12, 2021). Amex asks the court to apply the factors set forth by

the Second Circuit in Friedman for determining when it is appro-

priate to permit a party to depose opposing counsel. (Amex’s

Third Mot. at 3-9.) In Friedman, the Second Circuit observed, in

dicta, that courts faced with a request to depose opposing coun-

sel should adopt a “flexible approach” that considers “all of the

relevant facts and circumstances to determine whether the pro-

posed deposition would entail an inappropriate burden or

hardship.” Friedman, 350 F.3d at 72. “Such considerations may

include”: (1) “the need to depose the lawyer,” (2) “the lawyer’s

role in connection with the matter on which discovery is sought

and in relation to the pending litigation,” (3) “the risk of encoun-

tering privilege and work-product issues,” and (4) “the extent of

discovery already conducted.” Id.; see also Finkel, 2021 WL

1375655, at *2 (same). These considerations “may, in some cir-

cumstances, be especially appropriate to consider in determining

whether interrogatories should be used at least initially and

sometimes in lieu of a deposition.” Friedman, 350 F.3d at 72. Ul-

timately, “the fact that the proposed deponent is a lawyer” is

simply one circumstance to be considered, and “does not auto-

matically insulate [the lawyer] from a deposition nor

automatically require prior resort to alternative discovery de-

vices.” Id. While Friedman dealt with depositions of opposing

counsel, several district courts in this Circuit have applied the

case in the context of trial testimony of opposing counsel. See

Finkel, 2021 WL 1375655, at *2 (collecting cases).

Plaintiffs suggest that the court may disregard the Friedman fac-

tors because they do “not seek[] attorney testimony.” (Pls.’ Third

Opp. at 2 (“Amex dutifully analyzes the Friedman factors. But

Plaintiffs are not seeking attorney testimony. Plaintiffs seek testi-

mony, if necessary, from the person who verified a key

interrogatory response—a person who is an Amex Vice President

50

and also happens to be an attorney.”).) But Plaintiffs cite no au-

thority, and the court is aware of none, to suggest that the

Friedman factors do not apply to a person who “wears multiple

hats” as both a corporate executive and in-house counsel. (See id.

at 1.) Nor is there any authority to suggest that the Friedman fac-

tors do not apply to testimony of in-house counsel. See Tailored

Lighting, Inc. v. Osram Sylvania Prods., Inc., 255 F.R.D. 340, 344

(W.D.N.Y. 2009) (“[Plaintiff] has not cited any authority, how-

ever, nor has this Court found any, to suggest that the Friedman

considerations do not apply to depositions of in-house counsel.”).

As such, in an abundance of caution, the court applies the Fried-

man factors and concludes that they weigh in favor of permitting

Plaintiffs to call Ms. Currie as a witness at trial.

The first Friedman factor—the need to call the lawyer as a wit-

ness—weighs in favor of Plaintiffs. “The keystone to determining

the need to subpoena opposing counsel is whether the infor-

mation sought may be obtained from another source.” Finkel,

2021 WL 1375655, at *3. If “the information sought from the

attorney can be provided by non-attorney witnesses, that weighs

against permitting the deposition of an attorney.” Id. Plaintiffs

seek to examine Ms. Currie “to introduce the [interrogatory] re-

sponses, authenticate the responses, and [ask] about the basis for

her verification.” (Pls.’ Third Opp. at 4.) They also wish to call

Ms. Currie as a witness in the event that expected trial testimony

conflicts with Amex’s interrogatory responses. (Id. at 4-5.)

The information sought from Ms. Currie—that is, the basis for

Amex’s interrogatory responses—cannot be obtained from an-

other source, because Ms. Currie is the sole verifier of Amex’s

interrogatory responses. Amex is correct that its interrogatory re-

sponses serve as admissions for trial and may be used at trial like

testimony. (Amex’s Third Mot. at 4-5.) But that does not mean

Plaintiffs are precluded from examining the individual who veri-

fied those interrogatory responses, especially in the event that

51

those responses conflict with any live trial testimony. Even if

Plaintiffs can obtain the same substantive information from Ms.

Ouellette, Ms. Ouellette cannot testify as to the basis for Amex’s

interrogatory responses. Thus, the first Friedman factor weighs in

favor of Plaintiffs. See Tailored Lighting, 255 F.R.D. at 345-46

(permitting deposition of attorney-verifier where the attorney

“appears to be the only witness who could testify to the myriad

bases for [defendant’s] interrogatory responses”).

The second Friedman factor—the lawyer’s role in connection

with the matter on which testimony is sought and in relation to

the pending litigation—weighs neutrally. This factor requires the

court to assess Ms. Currie’s role both in this proceeding and in

the subject as to which her testimony is sought. Finkel, 2021 WL

1375655, at *4. The second Friedman factor supports attorney

testimony where the attorney “neither works on behalf of [the

defendant] nor represents them” in the case and “there is no on-

going attorney-client relationship to disrupt between the

parties.” GLD3, LLC v. Albra, No. 21-CV-11058 (VR), 2024 WL

4471672, at *6 (S.D.N.Y. Oct. 11, 2024). On the other hand, the

second Friedman factor weighs against permitting attorney testi-

mony where the attorney serves as counsel for a party and there

are “other witnesses who can testify regarding that same topic.”

Finkel, 2021 WL 1375655, at *4.

On the one hand, Ms. Currie’s role in this proceeding appears to

weigh against permitting her testimony. According to Amex, Ms.

Currie “has served as a member of Amex’s in-house legal depart-

ment since this litigation’s inception and has actively participated

in Amex’s representation in this litigation.” (Amex’s Third Mot.

at 7.) On the other hand, Ms. Currie’s role in the subject as to

which her testimony is sought is unique: she is the only person

who can testify as to the bases for Amex’s interrogatory re-

sponses. See Tailored Lighting, 255 F.R.D. at 345 (concluding that

52

an attorney’s “role was central to the matter about which discov-

ery [was] sought—the bases for [defendant’s] answers to

interrogatories”). This case is therefore unlike Finkel, where de-

fendants sought to depose plaintiffs counsel on issues relating to

their statute of limitations defense. Finkel, 2021 WL 1375655, at

*1-2. There, the court found that the attorney’s role in the repre-

sentation, coupled with the fact that two other witnesses could

testify regarding the same topic, weighed against permitting his

deposition. Id. at *4. Finkel did not grapple with the circum-

stances presented in this case, where an attorney acted as the

sole verifier for a party’s interrogatory responses. Thus, the court

concludes that the second Friedman factor weighs neutrally.

The third Friedman factor—the risk of encountering privilege and

work-product issues—weighs in favor of Amex. While the bases

for Amex’s interrogatory responses is a proper subject of exami-

nation, “the risk of encountering privileged information in the

course of doing so .. . cannot be discounted.” Tailored Lighting,

255 F.R.D. at 345. For example, Ms. Currie’s “thought processes

concerning whom and what documents to consult” and her “de-

liberations about what information to include and what to

exclude” likely fall within the ambit of the work-product privi-

lege. Id. Moreover, there is a possibility that Ms. Currie “may have

had privileged communications about the facts and information

[s]he assembled.” Id. While Plaintiffs do not intend to elicit priv-

ileged information, the risk of encountering such information

cannot be ignored. (See Pls.’ Third Opp. at 2 n.2.) Nevertheless,

in Tailored Lighting, the court did not find that the risk of encoun-

tering privileged information required preclusion of attorney-

testimony, but rather, created “a strong need to carefully and

cautiously circumscribe any permissible areas of testimony.” 255

F.R.D. at 345. Thus, while this factor weighs in favor of Amex, it

does not necessitate preclusion of Ms. Currie’s testimony.

53

The parties agree that the fourth Friedman factor—the extent of

discovery conducted—weighs neutrally. (Amex’s Third Mot. at 4;

Pls.’ Third Opp. at 2 n.2.) Thus, the first factor favors Plaintiffs,

the second and fourth factors weigh neutrally, and the third fac-

tor favors Amex.

The court concludes that the “flexible,” non-exhaustive Friedman

factors support a “narrowly-circumscribed” examination of Ms.

Currie. Tailored Lighting, 255 F.R.D. at 346 (concluding the

same). At bottom, Amex seeks to insulate the bases for its inter-

rogatory responses from scrutiny, despite the fact that Amex chose

to have its in-house counsel sign those responses. If other non-

lawyers possess the same substantive knowledge as Ms. Currie,

perhaps one of those non-lawyers should have verified Amex’s

responses. But the court will not preclude Plaintiffs from exam-

ining Ms. Currie about the bases for interrogatory responses that

she, and she alone, verified. Thus, Ms. Currie may testify regard-

ing (1) the information provided to and relied upon by her,

whether through communications with individuals or review of

documents, in answering the interrogatories; (2) the particular

source of that information; and (3) non-privileged communica-

tions between Ms. Currie and her human sources about said

information that occurred in the course of investigating and an-

swering the interrogatories.21 Amex’s third motion in limine is

therefore denied.

21 The court finds support for its approach in Tailored Lighting and

ValveTech—the only cases cited by the parties that address prospective tes-

timony of attorneys who verified a party’s interrogatory responses. See

Tailored Lighting, 255 F.R.D. at 346 (adopting same approach regarding

the deposition of an attorney who verified the defendant’s interrogatory

responses); ValveTech, Inc. v. Aerojet Rocketdyne, Inc., No. 17-CV-6788

(FPG) (MJP), 2021 WL 630910, at *4 (W.D.N.Y, Feb. 18, 2021) (same).

To the extent other courts have excluded attorney testimony in cases not

involving attorney-verified interrogatory responses, those cases are inap-

posite. (See generally Amex’s Third Mot.)

54

V. CONCLUSION

For the reasons stated above, Plaintiffs’ motions in limine are

GRANTED in part and DENIED in part, and Amex’s motions in

limine are GRANTED in part and DENIED in part.

The court rules as follows:

e Plaintiffs’ request that the court preclude Amex from of-

fering evidence or argument concerning the absence of

the Class Representative Plaintiffs or other Plaintiffs dur-

ing the trial is DENIED without prejudice to renewal

should Amex retreat from its current position at trial. Ad-

ditionally, should Amex decide to raise this issue at trial,

Amex is DIRECTED to provide the court and Plaintiffs

with 24 hours’ notice of its intent to do so.

e Plaintiffs’ request that the court bar Amex from introduc-

ing “cumulative” expert testimony at trial pursuant is

DENIED without prejudice to renewal.

e Plaintiffs’ request that the court preclude Amex from us-

ing 123 documents with their experts on direct

examination is GRANTED in full as to DX-547, DX-549,

DX-552, DX-553, DX-562, DX-563, DX-567, DX-603, DX-

604, and DX-605; GRANTED in part as to DX-323, DX-

463, and DxX-470, to the extent that if a particular expert

did not disclose these documents as relied upon, Amex

may not read that document into evidence via that wit-

ness or solicit testimony from that witness regarding that

document; and DENIED without prejudice to renewal as

to the remaining 110 documents.

e Plaintiffs’ request that the court exclude all evidence con-

cerning the Class Representatives’ knowledge of antitrust

law and the claims asserted is DENIED without prejudice

to renewal.

55

e Plaintiffs’ request that the court exclude all evidence of

the Class Representatives’ relationships to counsel is DE-

NIED.

e Plaintiffs’ request that the court exclude all evidence con-

cerning the circumstances surrounding the Class

Representatives’ retention of counsel is GRANTED.

e Plaintiffs’ request that the court exclude all evidence con-

cerning the Class Representatives’ agreement with

counsel on attorneys’ fees and costs is GRANTED.

e Amex’s request that the court preclude certain testimony

and exhibits from the bench trial in the DOJ Action is

GRANTED.

e Amex’s request that the court preclude evidence of al-

leged damages suffered by the Alabama Class prior to

January 29, 2017 is DENIED as procedurally improper.

e Amex’s request that the court preclude Plaintiffs from

calling an Amex in-house counsel, Katherine Currie, as a

fact witness at trial, is DENIED. Ms. Currie may testify

regarding (1) the information provided to and relied

upon by her, whether through communications with in-

dividuals or review of documents, in answering the

interrogatories; (2) the particular source of that infor-

mation; and (3) non-privileged communications

between Ms. Currie and her human sources about said

information that occurred in the course of investigating

and answering the interrogatories.

SO ORDERED.

Dated: Brooklyn, New York

May !3, 2025

United States District Judge

56