# Oliver v. American Express Company

> District Court, E.D. New York · May 13, 2025

URL: https://www.frixlaw.com/law-library/cases/11050267

## Case

- **Court:** District Court, E.D. New York
- **Decided:** May 13, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11050267

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11050267. Public record. Not legal advice.