Oliver v. American Express Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

TERRY GAYLE QUINTON, SHAWN O’KEEFE, RAN

ANDREW AMEND, DAVID MOSKOWITZ, 56 INGen cnc)

NATE THAYER, RICKY AMARO, NANCI- “CV-566 (NGG) URC)

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 four in total, and Plaintiffs’ motion for recon-

sideration of the court’s decision on the parties’ earlier motions

in limine. (Pls.’ Mot. for Recons. (“Mot. for Recons.”) (Dkt. 292-

1); Pls.’ Fifth Mot. (Dkt. 298); Pls.’ Sixth Mot. (Dkt. 308); Amex’s

Fourth Mot. (Dkt. 299-1); Amex’s Fifth Mot. (Dkt. 300-1).) The

parties oppose each other’s motions. (Amex’s Opp. to Mot. for

Recons. (Dkt. 297); Amex’s Fifth Opp. (Dkt. 304); Amex’s Sixth

Opp. (Dkt. 314); Pls.’ Fourth Opp. (Dkt. 306); Pls.’ Fifth Opp.

(Dkt. 305).) For the reasons that follow, Plaintiffs’ motions are

GRANTED in part and DENIED in part, and Amex’s motions 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, 149-67 (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, on May 13, 2025, the court granted in part and

denied in part the parties’ respective motions in limine, number-

ing seven in total. (Mem. & Order (“M&O”) (Dkt. 291) at 1.)

Specifically, the court denied without prejudice Plaintiffs’ first

motion to preclude evidence or argument concerning the ab-

sence of Plaintiffs during trial; denied without prejudice

Plaintiffs’ second motion to preclude certain expert testimony;

granted in part and denied in part Plaintiffs’ motion to preclude

certain third-party publications; and granted in part and denied

in part Plaintiffs’ motion to preclude evidence or testimony con-

cerning the Class Representatives’ adequacy. (Id. at 55-56.)

Additionally, the court granted Amex’s motion to preclude cer-

tain testimony and exhibits from United States v. Am. Express Co.,

No. 10-CV-4496 (NGG) (RER) (E.D.N.Y.) (the “DOJ Action”); de-

nied as procedurally improper Amex’s motion to preclude

evidence of alleged damages suffered by the certified class of

plaintiffs from Alabama (the “Alabama Class”) prior to January

29, 2017; and denied Amex’s motion to preclude Plaintiffs from

calling Amex in-house counsel, Katherine Currie, as a fact witness

at trial. (Id. at 56.)

Following the court’s decision on the first round of motions in

limine, Plaintiffs moved for reconsideration of the court’s decision

precluding testimony and exhibits from the DOJ Action to “carve

out” four exhibits. (Mot. for Recons. at 1.) Thereafter, the court

held a pretrial conference at which the parties discussed a brief-

ing schedule for Plaintiffs’ motion for reconsideration and

additional motions in limine. (Min. Entry Dated 5/27/2025.) On

June 9, 2025, the court endorsed a joint stipulation in which the

parties agreed that the damages period for the Alabama Class

shall begin no earlier than January 29, 2017. (Stip. & Order (Dkt.

296).) On June 11, 2025, Amex filed its opposition to Plaintiffs’

motion for reconsideration, Plaintiffs filed their fifth motion in

limine, and Amex filed its fourth and fifth motions in limine.

(Amex’s Opp. to Mot. for Recons.; Pls.’ Fifth Mot.; Amex’s Fourth

Mot.; Amex’s Fifth Mot.) The parties submitted their oppositions

to the motions in limine on June 18, 2025. (Amex’s Fifth Opp.;

Pls.’ Fourth Opp.; Pls.’ Fifth Opp.) Finally, Plaintiffs filed their

sixth motion in limine on June 27, 2025, and Amex filed its op-

position to the same on July 8, 2025. (Pls.’ Sixth Mot.; Amex’s

Sixth Opp.)

The court considers Plaintiffs’ motions 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 govern the admissibility of evi-

dence 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.

Ill. PLAINTIFFS’ MOTIONS

Plaintiffs move (1) for partial reconsideration of the court’s deci-

sion excluding evidence and testimony from the DOJ Action; (2)

to exclude evidence or argument concerning Class Representa-

tive Andrew Amend’s involvement in “prior unrelated lawsuits”;

and (3) to preclude Amex witness Sarah Wood from testifying

about events regarding Amex’s Australia experience that oc-

curred prior to her employment with Amex. (Mot. for Recons.;

Pls.’ Fifth Mot.; Pls.’ Sixth Mot.) The court considers each motion

in turn.

A. Motion for Reconsideration

Plaintiffs request that the court reconsider or modify its decision

excluding evidence and testimony from the DOJ Action to “carve

out” four exhibits, which Plaintiffs refer to as the “Durbin Work-

ing Group Documents”: PX 74 (formerly DOJ PX 89); PX 75

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

quotation marks are omitted, and all alterations are adopted.

(formerly DOJ PX 90); PX 76 (formerly DOJ PX 91); and PX 79

(formerly DOJ PX 1176). (Mot. for Recons. at 1; Pls.’ Trial Exs.

with Objs. (Dkt. 258-6) at 2; PX 74 (Dkt. 292-2); PX 75 (Dkt.

292-3); PX 76 (Dkt. 292-4); PX 79 (Dkt. 292-5).) In 2010, Amex

established an internal “Durbin Working Group” to analyze the

potential effects of a then-current draft of the Durbin Bill, which

would have permitted merchants in the United States to steer

and differentially discount forms of payment, including credit

cards. (Mot. for Recons. at 1; PX 75 at ECF p. 4 (summarizing

“Key Provisions” of the Durbin Bill).) The Durbin Working Group

Documents are emails and presentations prepared by the Durbin

Working Group which analyze the potential effects of the Durbin

Bill on Amex and the market as a whole.

Plaintiffs contend that the Durbin Working Group Documents are

relevant to a “central” issue in this case: “what the but-for world

would look like in the absence of Amex’s Anti-Steering Rules.”

(Mot for Recons. at 3.) Plaintiffs point out that the but-for world

is “a hypothetical, unobservable, counterfactual construct,” and,

as such, evidence relating to such a hypothetical world is “in short

supply.” (Id.) Plaintiffs argue that the Durbin Working Group

Documents “are some of the most probative, nonprivileged evi-

dence” of the but-for world because they reflect Amex’s “internal

planning” when it believed Congress might act to permit mer-

chant steering and_ differential surcharging—effectively

invalidating essential components of its Non-Discrimination Pro-

visions (““NDPs”). (Id.) While “more recent documents exist that

likely show how Amex would have operated its business if it

could no longer enforce its [NDPs],” Plaintiffs represent, Amex

“successfully asserted attorney-client privilege and work-product

protection over’ such documents. (Id. at 4.) Additionally, alt-

hough the Durbin Working Group Documents are 15 years old,

Plaintiffs point out that the parties plan to introduce even older

documents into evidence, including evidence of the Australia ex-

perience dating back to 2003. Ud.) Furthermore, Plaintiffs note

Amex intends to introduce certain documents falling under the

“ancient documents” exception to the rule against hearsay,

meaning the documents were prepared before January 1, 1998.

(Id. at 4.n.5 (referencing Amex’s intention to rely on the ancient

documents exception).) Thus, Plaintiffs argue that the Durbin

Working Group Documents are relevant.

Plaintiffs further assert that the Durbin Working Group Docu-

ments do not pose the same Rule 403 concerns as the remaining

DOJ Action evidence. (Id. at 4.) In particular, unlike prior testi-

mony from the DOJ Action, Plaintiffs argue that “there would be

no reasonable motivation or utility for Amex to ‘contextualize’ its

own business records by divulging ‘the existence of the DOJ ac-

tion and its ultimate outcome.” (Id. at 5 (citing M&O at 40).)

Plaintiffs contend that the “sole, vestigial trace of the prior DOJ

trial on the Durbin Working Group documents are . . . trial exhibit

stamps” which “can be readily removed or masked [at trial].”

(Id.) As such, Plaintiffs argue that admission of the Durbin Work-

ing Group Documents would not risk a “minitrial” into the merits

of the DOJ Action.? (Id.)

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

tends that Plaintiffs have not met their burden to obtain

reconsideration of the court’s prior decision. (Amex’s Opp. to

Mot. for Recons. at 1 (citing E.D.N.Y. Loc. Civ. R. 6.3 (explaining

that motions for reconsideration must “set[] forth concisely the

matters or controlling decisions which the moving party believes

the court has overlooked”)).) Second, Amex argues that the Dur-

bin Working Group Documents, like the remainder of the DOJ

2 Plaintiffs additionally contend that the rule against hearsay does not bar

admission of the Durbin Working Group Documents because the docu-

ments are party admissions. (Mot. for Recons. at 5 (citing Fed. R. Evid.

801(d)(2).) Amex does not raise a hearsay-related basis for preclusion.

(See generally Amex’s Opp. to Mot. for Recons.) The court agrees with

Plaintiffs that the Durbin Working Group Documents are non-hearsay

party admissions. Fed. R. Evid. 801(d)(2).

Action evidence, are of minimal relevance because they are over

15 years old and do not reflect Amex’s current views or strategies.

(Id. at 3-4.) Additionally, Amex points out that the Durbin Work-

ing Group Documents “were created by lower-level employees

and are filled with statements saying [the documents] are not the

views of senior management.” (Id. at 4.) Third and finally, Amex

asserts that the Durbin Working Group Documents should be

precluded under Rule 403. (Id. at 4-5.)

As a preliminary matter, Plaintiffs need not meet the motion for

reconsideration standard to obtain a modification of the court’s

in limine ruling. As the court explained in its prior decision, “[a]

district court’s ruling on a motion in limine is preliminary and

‘subject to change,[’]” and the court “may exercise its discretion

‘to alter a previous in limine ruling.” (M&O at 3 (quoting Luce,

469 U.S. at 41-42).) Thus, Plaintiffs need not point to “over-

looked controlling decisions or factual matters” for the court to

reconsider its prior ruling. (Amex. Opp. to Mot. for Recons. at 1.)

Turning to the substance, the court concludes that the Durbin

Working Group Documents are relevant, and that their relevance

is not substantially outweighed by a danger of unfair prejudice,

confusing the issues, misleading the jury, or undue delay. See

Fed. R. Evid. 401, 402, 403.

The Durbin Working Group Documents meet the “very low” bar

for relevance. Belvin v. Electchester Mgmt., LLC, 635 F. Supp. 3d

190, 197 (E.D.N.Y. 2022). Amex does not dispute that the but-

for world—i.e., the world if Amex’s NDPs did not exist—is of crit-

ical importance to Plaintiffs’ case. (See Amex’s Opp. to Mot. for

Recons. at 3-4.) Indeed, an essential element of Plaintiffs’ anti-

trust claims is proof that Amex’s NDPs unreasonably restrain

trade, which requires analysis of, among other things, competi-

tive harm and procompetitive rationales for the restraint. See

Ohio v. Am. Express, 585 U.S. at 541-42. The Durbin Working

Group Documents go to the heart of these issues. The documents

reflect internal Amex analyses regarding how merchants and

consumers might react to the elimination of Amex’s NDPs, and

strategies Amex might adopt if it could no longer prohibit mer-

chant steering or differential discounting. Put simply, the Durbin

Working Group Documents are relevant to the but-for world.

(See PX 74 at ECF p. 4 (slide explaining how merchants might

react “[i]f the Durbin Bill becomes law” and discussing the eco-

nomics of each possibility); PX 75 at ECF p. 5 (slide analyzing

“Cw]here ... Debit rates [might] end up” in response to the Dur-

bin Bill); id. at ECF pp. 6-7 (slides analyzing “[h]ow.. .

merchants & financial industry players [will] react” to the Durbin

Bill); id. at ECF pp. 8-9 (slides discussing options for merchants

if the Durbin Bill becomes law); id. at ECF p. 10 (slides discussing

“[p]otential strategic options for [Amex]” and the “[p]otential

[r]eactions” of industry players, including merchants, to each of

those options); PX 76 at ECF pp. 2-3 (internal Amex emails re-

flecting executive-level involvement in the Durbin Working

Group); id. at ECF pp. 5-14 (slides discussing potential merchant

reactions to the Durbin legislation and potential Amex re-

sponses); PX 79 at ECF pp. 2-15 (same).)

The fact that the Durbin Working Group Documents are over 15

years old does not preclude their admission. The court’s previous

decision focused, as the parties did, on the prior testimony of five

third-party witnesses and two exhibits previously introduced via

the testimony of one such witness. (M&O at 27-30.) Although the

court ultimately excluded the evidence on Rule 403 grounds, the

court remarked that the prior testimony was “of questionable

probative value” given its outdatedness. (See id. at 33 (“[E]ven

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 mer-

chants and card companies like Discover have remained

unchanged throughout the class periods in this case.”).) The out-

dated nature of the evidence was of particular concern because

Plaintiffs sought to use the prior testimony as a replacement for

live, up-to-date testimony from third-party witnesses. Here,

while the Durbin Working Group Documents are over 15 years

old, Plaintiffs correctly point out that they are the most recent

examples of how Amex might operate its business in the absence

of its NDPs. (Mot. for Recons. at 4.) And unlike old testimony,

where there is no opportunity for the witness to explain any

changes or updates to their position, here, if these documents no

longer reflect the attitudes of Amex, then Amex’s witnesses may

so testify. Additionally, the fact that the Durbin Working Group

Documents “were created by lower-level employees and are filled

with statements saying they are not the views of senior manage-

ment” goes to the weight of the evidence, not its admissibility.

(Amex Opp. to Mot. for Recons. at 4.) If the documents do not

reflect the views of senior management, then testifying Amex ex-

ecutives may inform the jury of that fact. Thus, the court

concludes that the Durbin Working Group Documents are rele-

vant.

Furthermore, unlike the evidence discussed in the court’s prior

decision, the Durbin Working Group Documents do not pose a

substantial danger of unfair prejudice, confusing the issues, mis-

leading the jury, or undue delay. The court excluded the prior

testimony and related exhibits because their admission would re-

sult in diversions and minitrials into the DOJ Action, the

existence of which the parties agreed not to discuss. (M&O at

40.) And, as Plaintiffs recognize, there was no way to cure this

prejudice because the prior testimony “was generated in a prior

trial and would not have existed if not for that trial.” (Mot. for

Recons. at 4.) By contrast, Amex created the Durbin Working

Group Documents independent of the DOJ Action. Indeed, their

only connection to the DOJ Action are old exhibit stamps which

can be easily removed. Therefore, the court concludes that the

relevance of the Durbin Working Group Documents is not sub-

stantially outweighed by a danger of unfair prejudice, confusing

the issues, misleading the jury, or undue delay.

Amex’s arguments do not convince the court otherwise. Amex

contends that admission of the Durbin Working Group Docu-

ments, like the remaining DOJ Action evidence, would force

Amex to decide between providing the proper context for the ex-

hibits, thereby revealing the existence of the DOJ Action, or

avoiding disclosure of the DOJ Action, thereby forfeiting its op-

portunity to contextualize the exhibits. (Amex’s Opp. to Mot. for

Recons. at 5.) Specifically, Amex opines that if Plaintiffs “call

[Jack] Funda for live testimony and ask him about these docu-

ments, Amex again would be ‘between a rock and a hard place’

in its own examination of Mr. Funda, considering his now-ex-

cluded prior testimony about those same exhibits.” (Id. (citing

M&O at 40).) However, Amex does not explain how answering

questions about the Durbin Working Group Documents—which,

as explained above, were created independent of the DOJ Ac-

tion—would require Mr. Funda to discuss his prior testimony in

the DOJ Action. And Amex does not argue that the Durbin Work-

ing Group Documents themselves would necessarily reveal the

existence of the DOJ Action. Thus, the court rejects Amex’s argu-

ment that admission of the Durbin Working Group Documents

would prompt the parties to divulge the existence of the DOJ Ac-

tion.

Amex also argues that admission of the Durbin Working Group

Documents would result in “diversions and minitrials” into the

history and context of the Durbin Bill and Amex’s reaction

thereto. (Id.) It is true that the jury will need to learn about the

context of the Durbin Bill and the Durbin Working Group in order

to understand the documents. But these “diversions” will be no

greater than those required to explain the history and context of

Amex’s Australia experience, for example. And Amex does not

object to the admission of that evidence. Additionally, the 35-

hour time limit placed on each side will further limit any diver-

sions on this topic. (Joint Pretrial Order (Dkt. 258) at 5.) Finally,

10

any expenditure of time on this issue does not substantially out-

weigh the relevance of the exhibits. Therefore, the court rejects

Amex’s request to preclude the Durbin Working Group Docu-

ments under Rule 403.

In sum, Plaintiffs’ motion for reconsideration as to PX 74, 75, 76,

and 79 is granted. The parties are directed to remove any DOJ

trial exhibit stamps from PX 74, 75, 76, and 79.

B. Fifth Motion in Limine

Next, Plaintiffs request that the court “exclude evidence or argu-

ment regarding any prior unrelated lawsuits in which Plaintiff

and Class Representative Andrew Amend .. . has been either a

party plaintiff or party defendant.” (Pls.’ Fifth Mot. at 1.)

Plaintiff Andrew Amend has been involved in prior litigation as

both a plaintiff and a defendant. (Id.) In particular, Amend has

participated in at least four lawsuits as a plaintiff, including a suit

against his business partner, a suit against a contractor who per-

formed work on his driveway, an action against a vendor in small

claims court, and an eviction action against a tenant for non-pay-

ment. (Id.) Additionally, in 2004, AOL sued Amend and others in

the Eastern District of Virginia for their respective roles in send-

ing unsolicited commercial emails. Am. Online, Inc. v. Ambro

Enters., Inc., No. 4-CV-1498 (E.D. Va.) (hereinafter “America

Online”). (America Online Am. Compl. (Dkt. 304-2).) Amend

and one of the corporate defendants, Ambro Enterprises, Inc.

(“Ambro”), reached a settlement agreement and entered into a

Stipulated Final Judgment and Order for Permanent Injunction,

which held Amend and Ambro “jointly and severally liable to

AOL for damages in the total amount of $100,000” and perma-

nently enjoined them from sending spam emails. (America

Online Stipulated Judgment (Dkt. 304-3) at ECF pp. 2-3.)

Plaintiffs request that the court exclude evidence or argument re-

garding the above-mentioned litigation. (Pls.’ Fifth Mot. at 1.)

11

Plaintiffs contend that Amend’s involvement in unrelated litiga-

tion is irrelevant to this case. (Id. at 3-4.) Additionally, to the

extent Amex seeks to introduce Amend’s prior lawsuits “to char-

acterize Mr. Amend as a chronic litigant” or “suggest [his]

purported propensity to act in a certain manner,” Plaintiffs assert

that such evidence would be inadmissible under Rule 404(b) (1).

(Id. at 3, 5.) Plaintiffs also argue that discussion of Amend’s liti-

gation history would result in undue prejudice and “distract from

the merits of the case.” (Id. at 4 (citing Fed. R. Evid. 403).) In

particular, Plaintiffs contend that evidence or testimony concern-

ing the America Online suit “carr[ies] a high risk of unfair

prejudice” because the jury may view Amend as “a perpetrator of

spam.” (Id.) Thus, Plaintiffs request that the court preclude evi-

dence or argument regarding Amend’s prior litigation history.

(Id. at 5.)

For its part, Amex represents that it “do[es] not plan to inquire”

into Amend’s litigation as a plaintiff, but reserves the “right to

introduce evidence or inquire into [said] litigation . . . if it be-

comes relevant for impeachment purposes or Plaintiffs otherwise

open the door.” (Amex’s Fifth Opp. at 2, 2 n.2.) However, Amex

argues that it may inquire into the America Online suit under

Rule 608(b) because it is probative of Amend’s character for

truthfulness. (Id. at 2-4.) In support of its argument, Amex points

to several allegations from the operative America Online com-

plaint, in which AOL claimed that the defendants engaged in

misleading, false, and fraudulent behavior.? (Id. at 3.) Amex also

3 Amex cites the following allegations from the operative complaint: “De-

fendants initiated or procured the transmission of AOL’s protected

computers, of commercial e-mail messages that contained, or were accom-

panied by, header information that was materially false or materially

misleading,” (America Online Am. Compl. 4 37); “Without authority, De-

fendants have obtained access to and used AOL’s computers and computer

network with the intent to obtain the use of AOL’s property and services

by false pretenses,” (id. { 52); “Defendants used a computer or a computer

12

cites the Stipulated Final Judgment and Order for Permanent In-

junction, which enjoined Amend and Ambro from, among other

things, “[c]reating .. . any email account . . . by providing false

or misleading information” and “[s]ending ... any e-mail...

bearing false, fraudulent, anonymous, inactive, deceptive, in-

complete, or invalid header information.” (America Online

Stipulated Judgment at ECF pp. 1-2; see also Amex’s Fifth Opp.

at 3.) On these bases, Amex contends that the America Online

suit is probative of Amend’s character for truthfulness.

The court concludes that evidence or testimony concerning

Amend’s prior litigation as a plaintiff is inadmissible under Rules

403, 404(b)(1), and 608(b). First, there is no evidence that those

lawsuits bear on Amend’s character for truthfulness. (Pls.’ Fifth

Mot. at 1 (explaining that Amend “su[ed] a business partner in

2008, su[ed] a contractor who worked on his driveway, t[ook] a

vendor to small claims court, and [sought to] evict[] a tenant for

non-payment”).) Therefore, evidence or testimony concerning

those suits is not admissible under Rule 608(b). See Fed. R. Evid.

608(b) (explaining that the court may allow specific instances of

a witness’s conduct to be inquired into on cross-examination if

“they are probative of the [witness’s] character for truthfulness

or untruthfulness”). Additionally, to the extent Amex may at-

tempt to use this evidence to show that Amend is a repeat

litigant, such propensity evidence is inadmissible under Rule

404(b) (1). See Fed. R. Evid. 404(b)(1) (‘Evidence of any other .

. . act is not admissible to prove a person’s character in order to

network with the intent to falsify or forge electronic mail transmission in-

formation or other routing information in connection with the

transmission of unsolicited bulk electronic mail through or into AOL’s com-

puter network or its Members,” (id. 159); and “Defendants’ acts of trespass

have been undertaken intentionally with malice, oppression and fraud, jus-

tifying the imposition of punitive damages,” (id. { 78). (Amex’s Fifth Opp.

at 3.)

13

show that on a particular occasion the person acted in accord-

ance with the character.”); Scoma v. City of New York, No. 16-CV-

6693 (KAM) (SJB), 2021 WL 1784385, at *7 (E.D.N.Y. May 4,

2021) (“[C]ourts have generally precluded evidence of prior law-

suits to show the plaintiffs litigiousness unless there was

evidence that the prior lawsuits were fraudulently filed.”) (col-

lecting cases). The risk of prejudice substantially outweighs any

probative value, given the danger that the evidence will be used

to draw an impermissible inference that Amend is a repeat liti-

gant and that he acted in accordance with that character trait in

this case. Fed. R. Evid. 403. The court therefore concludes that

evidence or testimony concerning Amend’s prior litigation as a

plaintiff is irrelevant and inadmissible, including for impeach-

ment purposes.

The court likewise concludes that evidence or testimony concern-

ing the America Online suit is inadmissible under Rules 403, 404,

and 608(b). As to Rule 608(b), courts in this circuit have repeat-

edly held that the existence of a complaint containing unproven

allegations, or a settlement agreement lacking any adverse find-

ings, is not probative of a witness’s character for truthfulness. See,

e.g., United States v. Clanton, 769 F. Supp. 3d 147, 155 (E.D.N.Y.

2024) (“Settled civil lawsuits that lack adverse findings or admis-

sions of wrongdoing are not probative of truthfulness.”); United

States v. Ahmed, No. 14-CR-277 (DLI), 2016 WL 3647686, at *3

(E.D.N.Y. July 1, 2016) (“The Court does not consider the exist-

ence of a complaint containing unproven allegations or a

settlement agreement lacking any adverse findings probative of

the witness’ truthfulness.”); United States v. Motovich, No. 21-CR-

497 (WFK), 2024 WL 3303723, at *18 (E.D.N.Y. July 2, 2024)

(“[T]he Amended Complaint does not make specific allegations

regarding [the witness’s] truthfulness nor have there been any

findings in that case as to [the witness’s] truthfulness, as required

to bring it within the ambit of Rule 608(b).”); Manbro Energy

Corp. v. Chatterjee Advisors, LLC, No. 20-CV-3773 (LGS), 2023

14

WL 2563054, at *3 (S.D.N.Y. Mar. 17, 2023) (“[E]vidence that

[the witness] was accused by the SEC of insider trading decades

ago is of limited probative value in evaluating [the witness’s]

character for truthfulness under Rule 608(b), given the time

elapsed and that the matter settled with no admission of wrong-

doing.”); Senior v. Eihab Human Servs., Inc., No. 15-CV-1009

(ENV) (PK), 2023 WL 7134076, at *1 (E.D.N.Y. Apr. 19, 2023)

(“Evidence of prior . . . litigation that is remote in time, lacks any

adverse findings probative of truthfulness, or contains unproven

allegations is not probative of truthfulness.”).

Claims in a complaint are merely unsubstantiated allegations of

wrongdoing, and settlement agreements are not admissions of

liability. Amend resolved the America Online suit via a “binding

Settlement Agreement,” pursuant to which he and Ambro agreed

to the entry of a Stipulated Final Judgment and Order for Perma-

nent Injunction. (America Online Stipulated Judgment at 1.)

That stipulation contained no findings of fact or admissions of

wrongdoing; it simply effectuated a monetary judgment and a

forward-looking injunctive relief. (See generally id.) Thus, the op-

erative America Online complaint and Stipulated Judgment,

neither of which contains any adverse findings or admission of

wrongdoing, are not probative of Amend’s character for truthful-

ness. Furthermore, the America Online suit is “too remote in time

to have any significance,” given that it was filed and settled

nearly 20 years ago. See Ahmed, 2016 WL 3647686, at *3 (law-

suit settled 20 years ago too remote to bear on witness’s character

for truthfulness); see also United States v. Schwab, 886 F.2d 509,

514 n.3 (2d Cir. 1989) (explaining that Congress intended the

matter of timeliness of prior misconduct to be left to “the discre-

tion of the court”). As such, evidence or testimony concerning the

America Online suit is not admissible under Rule 608(b).

Additionally, to the extent Amex may attempt to use the America

Online suit to portray Amend as “a perpetrator of spam,” (Pls.’

15

Fifth Mot. at 4), such propensity evidence is inadmissible under

Rule 404(b)(1), Fed. R. Evid. 404(b)(1). And the potential for

prejudice substantially outweighs any probative value, given the

risk that the evidence will be used to draw an impermissible in-

ference that Amend is a person of poor moral character who

acted in accordance with that character trait in this case. Fed. R.

Evid. 403. The court therefore concludes that evidence or testi-

mony concerning the America Online suit is irrelevant and

inadmissible, including for impeachment purposes.

Plaintiffs’ fifth motion in limine is granted.

C. Sixth Motion in Limine

Finally, Plaintiffs request an order precluding Sarah Wood “from

testifying about events regarding ‘Amex’s Australia Experience’

that occurred prior to February 2019, when she joined Amex.”

(Pls.’ Sixth Mot. at 1.)

Ms. Wood joined Amex in February 2019 as a Director of Gov-

ernment Affairs for Australia and New Zealand. (Amex’s Excerpts

of Wood Dep. Tr. (‘Amex’s Wood Dep. Tr.”) (Dkt. 314-2) 10:9-

20.) She held that role until January 2024, when she became the

Vice President of Government Affairs for the Asia Pacific region

(“APAC”), which includes Australia. (Id. 7:21-8:1.) As Vice Pres-

ident of Government Affairs for APAC, Ms. Wood is responsible

for “tracking policy and regulatory developments for [Amex]”;

“advising [Amex] on those developments”; “managing [Amex’s]

relationships with relevant government and regulatory stake-

holders”; and “advocating for [Amex’s] interests in relation to

those matters.” (Id. 8:1-7.) However, Ms. Wood “did not work on

payments regulation until [she joined] American Express in

2019.” (Id. 23:22-24.) Rather, Ms. Wood worked as an attorney

at an Australian law firm, where she primarily engaged in com-

mercial litigation, and then held various advisory positions

within the Australian government. (Pls.’ Excerpts of Wood Dep.

Tr. (“Pls.’ Wood Dep. Tr.”) (Dkt. 308-2) 12:16-24, 15:1-9.) So, to

16

prepare herself for her duties at Amex, Ms. Wood “read up” on

the “history of regulation in Australia as it pertains to what the

RBA [the Reserve Bank of Australia] is doing today.”* (Id. 22:16-

23:5.) In particular, Ms. Wood consulted “Reserve Bank reports,”

internal Amex documents, and “other government documents

that would be relevant to the work that [she does] right now.”

(Amex’s Wood Dep. Tr. 23:12-16, 28:2-14.) It is from this review

and her experience at Amex to date that Ms. Wood claims a fa-

miliarity with “the regulatory environment .. . in Australia,” both

past and present, and “the impact of that environment on

[Amex].” (Id. 20:19-22.) Amex identified Ms. Wood as a poten-

tial fact witness in October 2024, and disclosed in January 2025

that it “Will Call” Ms. Wood to testify about “Amex’s Australia

Experience.” (Pls.’ Sixth Mot. at 1 n.1; Amex’s Sixth Opp. at 2

n.2; Amex’s Witness List (Dkt. 258-2) at 2).)

Plaintiffs contend that Ms. Wood cannot testify about any aspect

of Amex’s Australia experience before February 2019 because she

has no personal knowledge of those “historical” events. (Pls.’

Sixth Mot. at 3-6 (citing Rules 602 and 701).) Plaintiffs further

argue that Ms. Wood lacks personal knowledge of Amex’s pre-

2019 experience in Australia because her information regarding

that time period “comes from third-party documents rather than

company records or business events that she herself has firsthand

knowledge of.” (Id. at 4.) Furthermore, to the extent Ms. Wood’s

testimony “would be based on her understanding and knowledge

that she specifically attributes to RBA and other third-party re-

ports,” Plaintiffs contend that such testimony would constitute

inadmissible hearsay. (Id. at 5.) Finally, Plaintiffs claim that Ms.

Wood cannot provide expert testimony pursuant to Rule 702,

4 The Reserve Bank of Australia or RBA “is the payments regulator in Aus-

tralia.” (Amex’s Wood Dep. Tr. 21:22-23.) The RBA “look(s] at the retail

payment system and the regulatory settings for that system, over various

reviews; and [it has] been doing that since the early 2000s.” (Ud. 21:23-

22:1.)

17

both because she “is not qualified to do so” and because the dead-

line for expert disclosures has passed. Ud. at 6-8.) As such,

Plaintiffs argue that Ms. Wood should not be permitted to testify

about Amex’s Australia experience before February 2019.

Amex opposes Plaintiffs’ motion on several bases. First, Amex

contends that Plaintiffs’ motion is premature because “chal-

lenge[s] [to] the basis or credibility of Ms. Wood’s testimony . . .

go to the weight of the evidence, not its admissibility.” (Amex’s

Sixth Opp. at 4.) Second, Amex argues that Ms. Wood gained

personal knowledge of events predating 2019 by virtue of her

position at the company, and through a review of both internal

and third-party documents. (Id. at 5-6.) To that end, Amex as-

serts that Ms. Wood does not intend to testify about “historical”

matters, but rather, “her personal knowledge about how the Aus-

tralian regulatory framework that came into existence in 2002

has influenced and continues to influence Amex’s business post-

2019.” Ud. at 6.) Furthermore, Amex claims that the caselaw

does not support Plaintiffs’ contention that a witness may not rely

on a review of records to establish personal knowledge. (Id. at 7-

8.) Third and finally, Amex represents that it has no intention to

elicit expert testimony from Ms. Wood. (Id. at 10-11.) Amex does

not address Plaintiffs’ hearsay-related argument.

“The Federal Rules of Evidence allow the admission of fact testi-

mony so long as the witness has personal knowledge, . . . while

opinion testimony can be presented by either a lay or expert wit-

ness.” United States v. Cuti, 720 F.3d 453, 457-58 (2d Cir. 2013)

(citing Fed. R. Evid. 602, 701, 702). A lay witness “may testify to

a [factual] matter only if evidence is introduced sufficient to sup-

port a finding that the witness has personal knowledge of the

[factual] matter.” Fed. R. Evid. 602. “Evidence to prove personal

knowledge may consist of the witness’s own testimony.” Id. Ad-

ditionally, a lay witness may offer opinion testimony, so long as

the opinion is: “(a) rationally based on the witness’s perception;

18

(b) helpful to clearly understanding the witness’s testimony or to

determining a fact in issue; and (c) not based on scientific, tech-

nical, or other specialized knowledge within the scope of Rule

702.” Fed. R. Evid. 701.

“(T]he personal knowledge of a witness may be inferred based

on her position with a company.” Borukh v. Experian Info. Sols.,

Inc., No. 24-CV-6022 (NRM) (JRC), 2025 WL 1220042, at *5

(E.D.N.Y. Apr. 28, 2025). In a similar vein, “[i]t is axiomatic that

a corporate representative may testify .. . based on knowledge

gained from a review of corporate books and records.” Boniel v.

U.S. Bank N.A., No. 12-CV-3809 (ERK) (MDG), 2013 WL

1687709, at *1 (E.D.N.Y. Apr. 18, 2013); Pace v. Air & Liquid Sys.

Corp., 171 F. Supp. 3d 254, 272 (S.D.N.Y. 2016) (same); see also

Borukh, 2025 WL 1220042, at *6 (“[A] witness may establish

personal knowledge based on a review of business records.”). For

example, in Rigas, a witness possessed personal knowledge of a

company’s books and records by conducting a thorough review

of those records, despite the fact that the records were prepared

before he started working at the company. United States v. Rigas,

490 F.3d 208, 223 (2d Cir. 2007) (“In the course of nearly twenty

months at [the company], [the witness] developed what he char-

acterized as fairly extensive knowledge of the debt area of [the

company] by reviewing the Co-Borrowing Agreements, and

other documents within the company, .... [and] familiariz[ing]

himself with [the company’s] accounting system and the soft-

ware used to generate reports.”). Courts have repeatedly deemed

a witness to have personal knowledge based on his or her review

of business records. See, e.g., Borukh, 2025 WL 1220042, at *6-7

(collecting cases).

To the extent Plaintiffs argue that Ms. Wood may not testify

based on knowledge gained from a review of Amex records pre-

dating her employment, such argument is contrary to the law.

Boniel, 2013 WL 1687709, at *1; Borukh, 2025 WL 1220042, at

19

*5, Unlike the witnesses in the two out-of-circuit cases cited by

Plaintiffs, Ms. Wood does not plan to testify on “a matter of his-

torical fact” on which she lacks personal knowledge or an expert

understanding. Ala. State Conf. of NAACP v. Alabama, No. 16-

CV-731 (WKW), 2020 WL 579385, at *3 (M.D. Ala. Feb. 5, 2020)

(lay witness lacked personal knowledge as to whether Alabama

had certain interests “in its collective mind when it adopted its

present system [of voting for appellate judges]”); Sovereign Mil.

Hospitaller Ord. v. Fla. Priory of Knights Hospitallers of Sovereign

Ord., 702 F.3d 1279, 1295 (11th Cir. 2012) (lay witness lacked

personal knowledge of the history of the Order of Malta). Rather,

Amex intends to solicit testimony from Ms. Wood based on her

review of Amex’s internal business records. As such, the court in-

fers Ms. Wood’s personal knowledge of Amex’s Australia

experience, pre- and post-2019, based on her position within the

company and her review of Amex’s records. See Borukh, 2025 WL

1220042, at *5.

To the extent Plaintiffs argue that Ms. Wood may not testify

based on knowledge gained from a review of third-party, or, in

this case, official government documents, Plaintiffs cite no au-

thority to support that assertion. Far from relying on “an

evaluation of other investigations,” Disability Advocs., Inc. v. Pat-

erson, No. 3-CV-3209 (NGG) (MDG), 2008 WL 5378365, at *17

(E.D.N.Y. Dec. 22, 2008), Ms. Wood studied both internal Amex

documents and Australian government documents in conducting

her own review of Amex’s Australia experience. (Amex’s Wood

Dep. Tr. 23:12-16, 28:2-14.) This case is similar to Bank of China,

where the Second Circuit concluded that a lay witness’s testi-

mony was rationally “based on his perceptions” to the extent it

was grounded in an investigation he undertook in his role as an

employee of the plaintiff. Bank of China, N.Y. Branch v. NBM LLC,

359 F.3d 171, 181 (2d Cir. 2004) (lay testimony admissible “so

long as the testimony was based on [the witness’s] investigation

and reflected his investigatory findings and conclusions, and was

20

not rooted exclusively in his expertise in international banking”).

Like the witness in Bank of China, Ms. Wood’s testimony is “based

on her perceptions” because it is grounded in her review of

Amex’s Australia experience. There is simply no legal support for

Plaintiffs’ contention that a lay witness’s investigation may not

involve a review of third-party documents.* As such, the court

rejects Plaintiffs’ request to preclude Ms. Wood’s testimony pur-

suant to Rules 602 and 701.

Plaintiffs’ hearsay argument is premature. “The Federal Rules of

Evidence define hearsay as a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” Sohnen v.

Charter Comms., Inc., 761 F. Supp. 3d 556, 581 (E.D.N.Y. 2025).

“Hearsay is not admissible except as provided by [the federal]

rules or by other rules prescribed by the Supreme Court pursuant

to statutory authority or by Act of Congress.” Id. (citing Fed. R.

Evid. 802). The sole case cited by Plaintiffs in support of their

5 Ferrari Club of America and East Point Systems—the only other cases cited

by Plaintiffs in support of this point—are inapposite. (Pls.’ Sixth Mot. at 5

(citing Ferrari Club of Am., Inc. v. Bourdage, No. 12-CV-6530 (EAW), 2017

WL 1498080, at *4 (W.D.N.Y. Apr. 25, 2017); FE. Point Sys., Inc. v. Maxim,

No. 13-CV-215 (VAB), 2015 WL 8023569, at *2 (D. Conn. Dec. 4, 2015)).)

Both cases dealt with the unique issue of whether and under what circum-

stances an accountant must testify as an expert, rather than a lay witness.

Ferrari Club, 2017 WL 1498080, at *1-4; E. Point Sys., 2015 WL 8023569,

at *2-3. And in both cases, the court concluded that technical opinions or

calculations based on financial documents with which the witness was not

familiar or involved in compiling did not constitute lay testimony. Ferrari

Club, 2017 WL 1498080, at *1-4; E. Point Sys., 2015 WL 8023569, at *2-

3. Here, Ms. Wood does not offer the technical opinion of a third-party

accountant. Rather, she offers testimony concerning her current em-

ployer’s experience in the Australian market, which she learned about, in

part, by reviewing Australian government documents. Neither Ferrari Club

of America nor East Point Systems supports Plaintiffs’ contention that Ms.

Wood cannot, in any respect, base her personal knowledge on these gov-

ernment documents.

21

hearsay argument, A Slice of Pie Productions, concluded that

“where [a witness] specifically attributes his understanding or

knowledge to a statement of another... , where those statements

do not constitute an admission by a party opponent, [the wit-

ness’s] testimony constitutes inadmissible hearsay (as offered for

the truth of the matter asserted).” A Slice of Pie Prods., LLC v.

Wayans Bros. Ent., 487 F. Supp. 2d 33, 37 (D. Conn. 2007). At

this stage, it is unclear whether Ms. Wood “specifically attributes”

any of her understanding or knowledge to another’s statement,

as defined by Rule 801. See Fed. R. Evid. 801. It is also unclear

whether the RBA reports are admissible under any exception to

the rule against hearsay. See Fed. R. Evid. 803, 807; see also

United States v. Otufale, 740 F. Supp. 3d 233, 241 (E.D.N.Y.

2024) (“The court may exclude the disputed evidence only if the

evidence is clearly inadmissible on all potential grounds.”). Thus,

until Ms. Wood testifies, the court cannot conclude whether her

testimony will involve inadmissible hearsay. See Sohnen, 761 F.

Supp. 3d 581 (concluding that similar challenge to witness testi-

mony was “premature”).

Finally, the court disagrees with Plaintiffs that “[m]aking sense

of the Australia experience . . . requires the ‘specialized

knowledge’ of a Rule 702 expert.” (Pls.’ Sixth Mot. at 8.) While

Dr. Russell Lamb, Plaintiffs’ expert witness, plans to discuss

Amex’s Australia experience in the context of his analysis of the

but-for world, Ms. Wood intends to testify regarding the actual

effects of Australian regulations on Amex’s business in that coun-

try. Her testimony is “not based on scientific, technical, or other

specialized knowledge within the scope of Rule 702,” Fed. R.

Evid. 701(c); rather, it is “based on [her] investigation and re-

flect[s] [her] investigatory findings and conclusions” regarding

Amex’s Australia experience, Bank of China, 359 F.3d at 181. Ms.

Wood’s testimony is admissible “not because of experience, train-

ing or specialized knowledge within the realm of an expert, but

because of the particularized knowledge that [she] has by virtue

22

of [her] position in the business.” Id. (See Pls.’ Wood Dep. Tr.

12:1-13:21, 15:1-21 (testimony reflecting Ms. Wood’s lack of

technical expertise in the payments industry prior to joining

Amex).) Thus, Ms. Wood’s testimony, at least as currently artic-

ulated, is admissible pursuant to Rule 701.

Plaintiffs’ sixth motion in limine is denied.

IV. AMEX’S MOTIONS

Amex moves in limine to preclude (1) four exhibits from the DOJ

Action, PX 70, 73, 84, and 95; and (2) evidence or argument

concerning cross-subsidization as evidence of anticompetitive ef-

fects. (Amex’s Fourth Mot.; Amex’s Fifth Mot.) The court

considers each motion in turn.

A. Fourth Motion in Limine

Amex requests “an order precluding Plaintiffs from disclosing

previously excluded evidence to the jury, including in the course

of expert testimony.” (Amex’s Fourth Mot. at 1.) According to

Amex, Plaintiffs plan “to offer into evidence and disclose to the

jury the contents of” four exhibits: PX 70; PX 73 (formerly DOJ

PX 5); PX 84 (formerly DOJ PX 1285); and PX 95 (formerly DOJ

PX 2). (d.; Pls.’ Trial Exs. with Objs. 2-3; PX 70 (Dkt. 299-4); PX

73 (Dkt. 299-5); PX 84 (Dkt. 299-6); PX 95 (Dkt. 299-7).) The

court excluded PX 73, 84, and 95 as part of its decision preclud-

ing evidence and testimony from the DOJ Action; the court has

yet to rule on the admissibility of PX 70. (M&O at 30 (listing ob-

jected-to exhibits as PX-71-PX-110).)

Amex requests that the court remind Plaintiffs of its decision ex-

cluding PX 73, 84, and 95, and reject any attempt by Plaintiffs to

admit or otherwise disclose the contents of PX 70, 73, 84, or 95

pursuant to Rule 703. (Amex’s Fourth Mot. at 1-2.) Specifically,

Amex contends that the court’s decision excluding the DOJ Ac-

tion evidence pursuant to Rule 403 bars Plaintiffs “from doing

23

anything to ‘disclose’ the excluded exhibits to the jury.” (Id. at 1.)

According to Amex, this includes any attempt by Dr. Lamb (1) to

rely on these exhibits in formulating—and offering—his opin-

ions, or (2) to disclose or describe the contents of the exhibits in

an effort to help the jury evaluate his opinions.® (Id. at 6-8, 10-

11.)

Plaintiffs oppose Amex’s motion on several bases. First, Plaintiffs

contend that the court’s decision excluding the DOJ Action evi-

dence pursuant to Rule 403 did not reflect a judgment that the

evidence is inadmissible for Rule 703 purposes. (Pls.’ Fourth Opp.

at 8-12.) Second, Plaintiffs point out that Rule 703 allows an ex-

pert to rely on inadmissible facts or data in forming his opinion,

as long as experts in the particular field would reasonably rely on

such facts or data. (Id. at 12.) As such, Plaintiffs claim that Dr.

Lamb’s disclosed opinions, even if premised on inadmissible evi-

dence, are admissible. (Id.) Finally, Plaintiffs argue that Dr. Lamb

may disclose the contents of PX 70, 73, 84, and 95 to the jury

pursuant to Rule 703 because their probative value in helping the

jury evaluate his opinions substantially outweighs their prejudi-

cial effect. (Id. at 13-16.)

Rule 703 provides that an expert “can testify to opinions based

on inadmissible evidence . . . if experts in the field reasonably

rely on such evidence in forming their opinions.” United States v.

Mejia, 545 F.3d 179, 197 (2d Cir. 2008); Linde v. Arab Bank, PLC,

922 F. Supp. 2d 316, 323 (E.D.N.Y. 2013) (same). However, “if

the facts or data would otherwise be inadmissible, the proponent

6 Amex does not argue that Dr. Lamb’s opinions are inadmissible because

experts in Dr. Lamb’s field would not rely on PX 70, 73, 84, or 95 in form-

ing their opinions. Fed. R. Evid. 703. (See generally Amex’s Fourth Mot.)

Rather, Amex contends that the court’s previous in limine decision renders

certain of Dr. Lamb’s opinions, including the facts and data upon which he

relied in formulating those opinions, inadmissible.

24

of the opinion may disclose them to the jury only if their proba-

tive value in helping the jury evaluate the opinion substantially

outweighs their prejudicial effect.” Fed. R. Evid. 703; Gill v. Arab

Bank, PLC, 893 F. Supp. 2d 523, 530 (E.D.N.Y. 2012) (same).

To the extent Amex argues that Dr. Lamb may not present to the

jury any opinions premised on PX 70, 73, 84, or 95, it is incorrect.

Rule 703 explicitly permits an expert to base his opinions on in-

admissible evidence “if experts in the particular field would

reasonably rely on [such evidence] in forming an opinion”; and

Amex makes no argument that experts in Dr. Lamb’s field would

not rely on these exhibits in formulating their opinions. Fed. R.

Evid. 703. (See generally Amex’s Fourth Mot.; see also Mem. &

Order Denying Amex’s Motion to Exclude Dr. Lamb’s Testimony

(Dkt. 220) at 7-22.) As such, Dr. Lamb may rely on PX 70, 73,

84, and 95 in formulating his opinions, irrespective of whether

those exhibits are admissible.

The court likewise rejects Amex’s argument that the court’s deci-

sion excluding the DOJ Action evidence pursuant to Rule 403

necessarily bars Plaintiffs “from doing anything to ‘disclose’ the

excluded exhibits to the jury.” (Amex’s Fourth Mot. at 1.) Amex

is correct that the Rule 703 balancing, which asks whether the

“probative value [of the exhibits] . . . substantially outweighs

their prejudicial effect,” Fed. R. Evid 703, is distinct from the Rule

403 balancing, which asks whether the “probative value [of the

exhibits] is substantially outweighed by a danger of .. . unfair

prejudice,” Fed. R. Evid. 403. And the parties devote some pages

to discussing whether a finding of inadmissibility under Rule 403

necessitates a finding of inadmissibility under Rule 703. (Amex’s

Fourth Mot. at 5-10; Pls.’ Fourth Opp. at 8-9.) Ultimately, the

court need not resolve this legal question because the court de-

termines that PX 70 and 73 are not “otherwise . . . inadmissible”

such that their disclosure triggers Rule 703’s balancing test. See

Fed. R. Evid. 703. To the extent such a determination conflicts

25

with the court’s prior decision, that decision is modified. Addi-

tionally, insofar as a finding of prejudice under Rule 403 requires

a finding of prejudice under Rule 703, the court modifies its pre-

vious in limine ruling to permit Dr. Lamb to disclose PX 84 to the

jury pursuant to Rule 703. Finally, the court leaves undisturbed

its decision excluding PX 95. The court discusses each exhibit in

turn.

1. PX 70

PX 70 is an excerpt from an Amex presentation dated March 26,

2010, titled “Regulation Driven Surcharging/Discounting

Threats.” (PX 70 at ECF p. 2.) The presentation covered, among

other things, the impacts and takeaways from Amex’s experience

in Australia, where government regulation abolished anti-steer-

ing and no-surcharge rules. (Id. at ECF pp. 5-6, 13-14.) According

to Plaintiffs, Dr. Lamb relies on PX 70 as a basis for his opinion

that Amex “viewed its experience in Australia following the re-

forms there as instructive to how Amex should act in the U.S.

should Amex lose its ability to enforce its anti-steering rules and

should a credible threat of differential surcharging come to ex-

ist.” (Pls.’ Fourth Opp. at 6-7.) Dr. Lamb relies on PX 70 “in

forming his opinion that Amex would have reacted to the threat

of differential surcharging . . . by proactively lowering its price to

large U.S. merchants before surcharging could take hold.” Cd. at

2.)

Amex does not discuss PX 70 at length in its motion, except to

argue that the court’s prior decision bars Plaintiffs from offering

or using PX 70 at trial, and that the exhibit is an “internal Amex

Australia document[] from more than a decade ago.” (Amex’s

Fourth Mot. at 2, 4-5.) Plaintiffs, for their part, argue that PX 70

has probative value in helping the jury evaluate Dr. Lamb’s opin-

ions about the extent of surcharging in the but-for world. (Pls.’

Fourth Opp. at 2, 6-7, 15.)

26

As noted above, the court has yet to decide the admissibility of

PX 70. (M&O at 30 (listing objected-to exhibits as PX-71-PX-

110).) Nevertheless, the court concludes that PX 70 is probative

of a key issue in this case: what the but-for world would look like

in the absence of Amex’s NDPs. (See supra III.A.) PX 70 provides

insight into how Amex might react if its NDPs were abolished in

the United States. The only potential prejudice identified by

Amex is that PX 70 is over a decade old; however, that is not due

to some failure by Plaintiffs to obtain more up-to-date evidence,

but rather, the mere fact that Australia adopted the relevant reg-

ulations in 2003, and both the market and Amex reacted to those

regulations in the years thereafter. (PX 70 at ECF p. 13 (noting

that Australia adopted the relevant regulations in 2003, those

regulations began to affect the market in 2006 and 2007, and

Amex Australia adapted to the new environment between 2007

and 2009).) Additionally, to the extent Amex argues that disclo-

sure of PX 70 would lead to revelation of the DOJ Action, Amex

provides no basis for that assertion. (Amex’s Fourth Mot. at 9.)

Like the Durbin Working Group Documents, Amex created PX 70

independent of the DOJ Action. Thus, unlike prior trial testi-

mony, there is no apparent need to “contextualize” PX 70 within

the DOJ Action. (Id.) Therefore, the court concludes that PX 70

is relevant, and that its probative value is not substantially out-

weighed by a danger of unfair prejudice, confusing the issues,

misleading the jury, or wasting time. Fed. R. Evid. 401, 402, 403.

Because PX 70 is not “otherwise . . . inadmissible’ under Rule

703, Dr. Lamb may rely upon and disclose it to the jury.

2. PX73

PX 73 is a slide from an October 8, 2010 Amex presentation titled

“Global Pricing & Revenue Management 2011 SQP Review.” (PX

73 at ECF p. 2.) The slide discusses the “Canada Code of Con-

duct”—-an agreement among networks and acquirers that

allowed merchants to differentially price by payment network in

27

Canada—and the threat it posed to Amex’s business model. (Id.

at ECF p. 3.) The slide also analyzes the threat posed by the Dur-

bin Bill. Gd.) According to Plaintiffs, Dr. Lamb relies on PX 73 as

a basis for his opinion that Amex’s NDPs “successfully prevented

Amex-accepting merchants from credibly threatening to differen-

tially surcharge credit-card transactions.” (Pls.’ Fourth Opp. at 7.)

Amex does not discuss PX 73 in its motion, except to argue that

the court’s prior decision bars Plaintiffs from offering or using PX

73 at trial. (Amex’s Fourth Mot. at 2, 4.) Plaintiffs argue that PX

73 has probative value in helping the jury evaluate Dr. Lamb’s

opinions about the extent of surcharging in the but-for world.

(Pls.’ Fourth Opp. at 2, 15.)

The court modifies its previous in limine ruling as to PX 73. Luce,

469 U.S. at 41. Although the court excluded PX 73 in its prior

decision, it did not consider PX 73 individually, nor did it rule

decisively on the exhibit’s relevance. (M&O at 37 n.18 (noting

that the court “cannot assess with particularity” each exhibit).)

Considering PX 73 for the first time on an individual basis, the

court concludes that the exhibit is probative of the but-for world

because it demonstrates Amex’s belief that legislation permitting

differential surcharging posed a threat to its business model. (PX

73 at ECF p. 3.) To the extent Amex argues that PX 73 is preju-

dicial because it is 15 years old, such an argument fails for the

same reasons articulated above: the exhibit reflects Amex’s reac-

tions to then-current changes in legislation/Code; it is not

Plaintiffs’ fault that such changes occurred—or were proposed—

over 10 years ago. Additionally, there is no indication that disclo-

sure of PX 73 would lead to revelation of the DOJ Action. (See

Amex’s Fourth Mot. at 9.) Amex created PX 73 independent of

the DOJ Action; thus, unlike prior trial testimony, there is no ap-

parent need to “contextualize” PX 73 within the DOJ Action. (Id.)

As such, the court concludes that PX 73 is relevant, and that its

probative value is not substantially outweighed by a danger of

28

unfair prejudice, confusing the issues, misleading the jury, or

wasting time. Fed. R. Evid. 401, 402, 403. Because PX 73 is not

“otherwise . . . inadmissible” under Rule 703, Dr. Lamb may rely

upon and disclose it to the jury.

3. PX 84

PX 84 is a slide from a Discover presentation dated October 15,

2007, which contains a chart depicting the effects of Discover’s

pivot from a low-cost provider strategy to a strategy of raising its

rates to merchants. (PX 84 at ECF pp. 2-3.) According to Plain-

tiffs, Dr. Lamb relies on PX 84 as a “key document” for his

damages benchmark. (Pls.’ Fourth Opp. at 5.) Specifically, Dr.

Lamb opines that “the extent to which Discover raised its mer-

chant discount rates after deciding that its low-cost provider

strategy could not succeed due to rival card networks’ (including

Amex’s) anti-steering rules” represents a suitable proxy “for the

extent to which Amex’s anti-steering rules caused merchant dis-

count rates to be artificially inflated during the class period.” (Id.)

Amex argues that PX 84 is inadmissible under Rule 703 for the

same reasons articulated in the court’s prior decision. (Amex’s

Fourth Opp. at 4-5 (citing M&O at 37).) Specifically, Amex con-

tends that PX 84 is of minimal probative value because it is over

15 years old and “does not reflect any strategy Discover adopted

during the class period.” (Id. at 9 (noting that the “the graph itself

only includes data until 2008”).) Plaintiffs assert that PX 84

would help the jury evaluate the validity of Dr. Lamb’s damages

calculations. (Pls.’ Fourth Opp. at 14.) Additionally, while the

court previously concluded that PX 84 bore little probative value

“as substantive evidence tending to prove how Discover would

have behaved in the 2015-2022 class period,” Plaintiffs argue,

the court has yet to consider PX 84’s probative value “as basis

evidence to help the jury evaluate Dr. Lamb’s opinion that Dis-

cover’s pricing behavior is a reasonable benchmark for estimating

29

the level of overcharge caused by Amex’s Anti-Steering Rules.”

(Id. at 6.)

The court concludes that the probative value of PX 84 in helping

the jury evaluate Dr. Lamb’s opinion substantially outweighs its

prejudicial effect. Although the court excluded PX 84 in its prior

decision, it did so in the context of determining that third-party

testimony from the DOJ Action was minimally probative of those

third parties’ thoughts and opinions during the class periods in

this case. (M&O at 37-38.) Additionally, the court’s decision did

not assess the admissibility of PX 84 pursuant to Rule 703. (Id. at

27-42.) The court determines that disclosure of PX 84 will help

the jury evaluate Dr. Lamb’s opinion because it is a visualization

of the facts and data upon which Dr. Lamb relied in reaching his

damages benchmark calculations. (PX 84 at ECF p. 3.) To the

extent Amex argues that PX 84 is prejudicial because it is over 15

years old and does not reflect Discover’s activity or behavior dur-

ing the class period, such argument falls flat in this context,

where the exhibit is merely used as a model for Dr. Lamb’s dam-

ages calculation. Finally, there is no indication that disclosure of

PX 84 would reveal the existence of the DOJ Action. (See Amex’s

Fourth Mot. at 9.) Discover created PX 84 independent of the

DOJ Action; thus, unlike prior trial testimony, there is no appar-

ent need to “contextualize” PX 84 within the DOJ Action. (Id.) As

such, the court concludes that the probative value of PX 84 in

helping the jury evaluate Dr. Lamb’s opinion substantially out-

weighs its prejudicial effect, which is minimal in this context. Dr.

Lamb may rely upon and disclose PX 84 to the jury pursuant to

Rule 703; however, the exhibit remains excluded for the pur-

poses articulated in the court’s prior decision.

4. PX95

Lastly, PX 95 is a copy of an earlier version of Amex’s NDPs, ef-

fective April 2012. (PX 95 at ECF p. 2.) Dr. Lamb did not cite PX

95 as relied upon in his expert report. (See Lamb Report (Dkt.

30

138-4).) Nor do Plaintiffs claim that Dr. Lamb relied on PX 95 in

generating any specific opinions. (See Pls.’ Fourth Opp. at 7.)

Nevertheless, Plaintiffs assert that PX 95 has “probative value in

helping the jury evaluate Dr. Lamb’s opinions about . . . Amex’s

anti-steering rules over time.” (Ud. at 15.) Additionally, in an

email appended to Amex’s motion in limine, Plaintiffs repre-

sented that PX 95 “could be used or relied on to show the

consistency of [Amex’s NDPs],” should Amex “dispute that its

anti-steering rules materially changed from the beginning of the

class period to the end in 2022.” (Email Exchange (Dkt. 299-3)

at ECF p. 2.) Amex does not discuss PX 95 at length in its motion,

except to point out that the document “predates all class periods”

in this case. (Amex’s Fourth Mot. at 5.)

At this stage, the court cannot conclude that PX 95 has “probative

value in helping the jury evaluate” Dr. Lamb’s opinions. Fed. R.

Evid. 703. Dr. Lamb did not cite to PX 95 in his expert report; as

such, it is unclear exactly which opinions Dr. Lamb may offer

based on this exhibit. And the court cannot determine PX 95’s

probative value in helping the jury evaluate Dr. Lamb’s opinions

without knowing the precise opinions at issue. Furthermore, to

the extent Dr. Lamb may rely on PX 95 as evidence that Amex’s

NDPs remained materially unchanged “from the beginning of the

class period to the end in 2022,” as Amex points out, PX 95 pre-

dates the beginning of the class periods in this case by several

years. (Email Exchange at ECF p. 2; Amex’s Fourth Mot. at 5

(noting that PX 95 is from 2012 and the earliest class period be-

gins in January 2015).) It is therefore unclear whether PX 95

would serve Plaintiffs’ intended purpose. Thus, because the court

cannot conclude that PX 95 would help the jury evaluate Dr.

Lamb’s opinions, he may not disclose the contents of PX 95 to the

jury.

31

In sum, Amex’s fourth motion in limine is denied as to PX 70, 73,

and 84, and granted as to PX 95. The parties are directed to re-

move any DOJ trial exhibit stamps from PX 70, 73, and 84.

Additionally, the parties may propose a limiting instruction to be

read in the event that Dr. Lamb discloses the contents of PX 84

to the jury.

B. Fifth Motion in Limine

Finally, Amex requests an order precluding Plaintiffs from intro-

ducing evidence or argument regarding “cross-subsidization as a

basis for suggesting that Amex’s [NDPs] have caused anticompet-

itive effects or harm.” (Amex’ Fifth Mot. at 1.)

In his expert report, Dr. Lamb explores how Amex’s NDPs caused

merchants “to incur higher overall costs of GPCC [general pur-

pose credit card] acceptance (merchant discount fees) on GPCC

Transactions than they otherwise would have.” (Lamb Report {

331.) Dr. Lamb opines that, because Amex’s NDPs prevent mer-

chants from charging customers a fee commensurate with the

cost of accepting their particular credit card, merchants “raise

prices to all customers in order to cover their average costs of

GPCC acceptance.” (Id. 4 333.) The result, according to Dr. Lamb,

is that users of premium, higher-cost GPCCs obtain incremental

benefits—i.e., cardholder rewards—at the expense of lower-cost

GPCC users and users of other, less expensive forms of payment

like debit cards, cash, and checks. (Id.) Dr. Lamb adds that these

users “pay a relatively higher portion of the merchant’s average

cost of accepting GPCCs [because] they earn below-average rates

of cardholder rewards, or no rewards at all.” (Id.) In other words,

Dr. Lamb states that Amex’s NDPs “resulted in a regressive cross-

subsidization that caused all consumers, not just those paying

with GPCCs, to pay the artificially-inflated retail prices charged

32

by Amex-accepting merchants.”’ (Id. { 339.) Dr. Lamb discusses

cross-subsidization in the portion of his expert report titled “Com-

mon Evidence Demonstrates that All or Nearly All Members of

the Credit Card Class and Debit Card Class were Injured by

Amex’s Continued Imposition and Enforcement of its Anti-Steer-

ing Rules.” Ud. Section VI.)

Amex requests that the court preclude evidence or argument re-

garding cross-subsidization as a basis for proving anticompetitive

effects or harm pursuant to Rules 401, 402, and 403.8 (Amex’s

Fifth Mot. at 1-3.) Amex contends that testimony and evidence

of cross-subsidization is irrelevant. (Id. at 4-7.) Amex notes that

an antitrust plaintiff must demonstrate harm to the competitive

process as a whole, and “direct evidence of anticompetitive ef-

fects” requires “proof of actual detrimental effects on

competition, such as reduced output, increased prices, or de-

creased quality in the relevant market.” (Id. at 6 (quoting Ohio

v. Am. Express, 585 U.S. at 542).) According to Amex, cross-sub-

sidization is irrelevant to competitive harm because it is a

“distributional concern” that “says nothing about whether com-

petition as a whole has been harmed.” (Id. at 4.) In other words,

? Dr. Lamb explains that the cross-subsidy is “regressive” because it reflects

“a transfer [of a subsidy] from lower-income consumers (who were typi-

cally unable to enjoy the benefits of premium rewards GPCCs) to higher-

income consumers (who were most likely to use the premium rewards

GPCCs that were among the most expensive for merchants to accept).”

(Lamb Report § 338.)

8 Although Amex frames its request as limited to evidence or argument

regarding “cross-subsidization as a basis for suggesting that Amex’s [NDPs]

have caused anticompetitive effects or harm,” the relief it requests is broader.

(Amex’s Fifth Mot. at 1, 9 (emphasis added).) For example, in addition to

arguing that cross-subsidization is irrelevant to the issue of competitive

harm, Amex also suggests that cross-subsidization is “wholly irrelevant to

Dr. Lamb’s damages model.” (Id. at 6.) Furthermore, Amex’s contention

that cross-subsidization evidence “would be an impermissible appeal to

class-based prejudices” seems to suggest that such evidence would be in-

appropriate regardless of its purpose. (Id. at 9.)

33

Amex argues that cross-subsidization “has nothing to do with re-

duced output, increased prices[,] or decreased quality in the

relevant market.” (Id. at 7.) In support of its assertion, Amex cites

two law review articles authored by the same professor. (Id. at 5

(citing Herbert Hovenkamp, Whatever Did Happen to the Anti-

trust Movement?, 94 NOTRE DAME L. REV. 583, 624 (2018);

Herbert Hovenkamp, Progressive Antitrust, 2018 U. ILL. L. REv. 71,

110 (2018)).) Amex also points out that Dr. Lamb himself does

not opine that cross-subsidization represents harm to competi-

tion; rather, he lists it as an “additional adverse effect” of Amex’s

NDPs. (Id. at 6 (quoting Lamb Report { 338).) Thus, Amex argues

that testimony or evidence regarding cross-subsidization is irrel-

evant.

Amex further contends that any probative value of cross-subsidi-

zation evidence is substantially outweighed by a danger of unfair

prejudice and confusion. (Id. at 7-9.) In particular, Amex claims

that cross-subsidization evidence would confuse or mislead the

jury “because cross-subsidization is not evidence of anticompeti-

tive effects under the law.” (Id. at 7.) Additionally, Amex asserts

that Plaintiffs “disclaimed reliance on this [cross-subsidization]

theory by repeatedly asserting that they are only pursuing a di-

rect evidence case based on the idea that the NDPs harm

competition because they result in higher two-sided prices.” (Id.

at 8.) Allowing Plaintiffs to “change course” this close to trial

would prejudice Amex “in at least two ways,”: first, Plaintiffs “de-

nied Amex the opportunity to secure summary judgment” on this

issue by “saying that they intended to prove anticompetitive ef-

fects only through direct evidence”; and second, Amex “has been

preparing for trial by focusing [only] on Plaintiffs’ direct evidence

theory.” Ud.) Finally, Amex argues that Plaintiffs’ cross-subsidi-

zation theory would be an “impermissible appeal to class-based

biases.” (Id. at 9.) For these reasons, Amex requests that the court

preclude evidence or argument regarding cross-subsidization

pursuant to Rule 403.

34

Plaintiffs oppose Amex’s motion. As a general matter, Plaintiffs

characterize Amex’s request as “seek[ing] to deny the jury a full

picture of the actual market reality.” (Pls.’ Fifth Opp. at 2.) Ac-

cording to Plaintiffs, “[t]o hear only that Amex charges higher

merchant fees and that it provides its cardholders with higher

rewards, but not that the increased retail prices . . . result in cross-

subsidization, would leave the jury in the dark.” (Id.) “Without

showing cross-subsidization,” Plaintiffs contend, “the jury would

hear only half the story.” (d.)

With respect to Rules 401 and 402, Plaintiffs assert that cross-

subsidization is relevant to competitive harm because “increased

prices” paid by market participants “are a classic anticompetitive

effect and are direct evidence of anticompetitive harm.” (Pls.’

Fifth Opp. at 3 (citing Ohio v. Am. Express, 585 U.S. at 542).)

Plaintiffs also contend that cross-subsidization is relevant to re-

futing Amex’s position that its NDPs “are procompetitive and

enhance competition in the two-sided market for credit and

charge card transactions.” (Id.) Additionally, Plaintiffs assert that

cross-subsidization “has special relevance” to their Illinois Claim

and request for punitive damages under Illinois law. (Id.) Specif-

ically, Plaintiffs argue that cross-subsidization “confirms” that

Amex’s NDPs violate public policy, and that Amex’s conduct war-

rants punitive damages. (Id. at 3-4.)

As to Rule 403, Plaintiffs assert that cross-subsidization “has been

a prominent element of [their] case since the initial complaint.”

(Id. at 4-5 (citing references to cross-subsidization in the Com-

plaint, Amended Complaint, Second Amended Complaint,

Amex’s Answer to the Second Amended Complaint, Amex’s Op-

position to Plaintiffs’ Motion for Class Certification, Plaintiffs’

Reply in Support of their Motion for Class Certification, Dr.

Lamb’s report, the Deposition of Dr. Lamb, and Dr. Gaier’s re-

port).) Plaintiffs state that they “have never represented, in the

summary-judgment proceedings or otherwise, that they did not

35

intend to present evidence of cross-subsidization.” (Id. at 5.) As

such, Plaintiffs contend, Amex cannot be surprised by their reli-

ance on cross-subsidization evidence. (Id.) Additionally, Plaintiffs

assert that there is no “legal support” for Amex’s contention that

it would be prejudicial for Plaintiffs to present cross-subsidization

evidence that they did not rely upon at summary judgment. (Id.

at 6.) Regardless, Plaintiffs argue, they “are not raising a different

theory of liability by presenting cross-subsidization evidence.”

(Id.) Finally, Plaintiffs reject Amex’s argument that cross-subsidi-

zation is an appeal to class prejudice, reasoning that cross-

subsidization “is simply a fact, and a part of explaining the con-

sequences of Amex’s [NDPs].” (Id.)

The court concludes that evidence of cross-subsidization is rele-

vant, and that its relevance is not substantially outweighed by a

danger of unfair prejudice or confusing the issues. Fed. R. Evid.

401, 402, 403.

Evidence of cross-subsidization meets the low bar for relevance.

Belvin, 635 F. Supp. 3d at 197. The parties do not dispute that

the alleged anticompetitive effects of Amex’s NDPs is a “fact .. .

of consequence in determining the action.” Fed. R. Evid. 401(b)

(Amex’s Fifth Mot. at 2, 4-5; Pls.’ Fifth Opp. at 3.) Instead, the

parties dispute whether cross-subsidization “has any tendency to

make [anticompetitive effects] more or less probable than it

would be without the evidence.” Fed. R. Evid. 401(a). As the par-

ties point out, a plaintiff can prove anticompetitive effects

“directly or indirectly,” and “[d]irect evidence of anticompetitive

effects would be proof of actual detrimental effects on competi-

tion, .. . such as reduced output, increased prices, or decreased

quality in the relevant market.” Ohio v. Am. Express, 585 U.S. at

542.

Here, the jury has yet to determine the relevant product market.

Nevertheless, whether the relevant market is the two-sided mar-

ket for credit card transactions in the United States, or the two-

36

sided market for credit card and debit card transactions in the

United States, cross-subsidization has a tendency to prove “in-

creased prices” in these markets. Specifically, cross-subsidization

tends to show that, while merchants raise prices to all consumers

in order to cover the costs of GPCC acceptance, those increased

prices weigh more heavily on lower-cost GPCC users and users of

other forms of payment like debit cards, cash, and checks, be-

cause those individuals earn below-average rates of cardholder

rewards or no rewards at all, and thus reap fewer—or none—of

the cardholders benefits that led to the higher prices in the first

place. (Lamb Report § 331-39.) The court agrees with Plaintiffs

that cross-subsidization is part of the “full picture” of increased

prices in the relevant market. (Pls.’ Fifth Opp. at 2.) Therefore,

the court concludes that cross-subsidization evidence is relevant.

Ultimately, it will be for the jury to decide the weight, if any, to

give the evidence.

Amex’s arguments do not convince the court otherwise. While

Amex points out that Plaintiffs “do not have any cases to support

the position that cross-subsidization is relevant [to proving com-

petitive harm],” neither does Amex. (Amex’s Fifth Mot. at 5.)

Amex cites caselaw discussing the concept of competitive harm

in general, but those cases do not mention, let alone decide the

relevance of, cross-subsidization as evidence of competitive

harm.? (Id. (citing NYNEX Corp. v. Discon, Inc., 525 U.S. 128, 135

(1998) (no mention of cross-subsidization); Epic Games, Inc. v.

Apple Inc., 493 F. Supp. 3d 817, 839 (N.D. Cal. 2020) (no men-

tion of cross-subsidization); SCM Corp. v. Xerox Corp., 645 F.2d

1195, 1203 (2d Cir. 1981) (no mention of cross-subsidization)).)

° The fact that the Supreme Court did not discuss cross-subsidization in its

analysis of competitive harm in Ohio v. Am. Express is not “[nJotabl[e],” as

Amex suggests. (Amex’s Fifth Mot. at 6 n.2.) The fact that the Supreme

Court did not address the issue means just that—it did not address the

Issue.

37

Nor is the court aware of any case addressing the issue. Addition-

ally, while some scholars opine that cross-subsidization does not

necessarily reflect anticompetitive harm, others adopt the oppo-

site view. Compare Herbert Hovenkamp, Whatever Did Happen to

the Antitrust Movement?, 94 NOTRE DAME L. REV. 583, 624 (2018)

(“[A]ntitrust has no place in addressing distribution of wealth

aside from concerns for competition.”), and Herbert Hovenkamp,

Progressive Antitrust, 2018 U. ILL. L. REV. 71, 110 (2018) (“Anti-

trust is neither a tax-and-transfer system, nor one that is

structured in a way that permits managed cross-subsidization.”),

with Trent Earl, Merchant Restraints in Ohio v. American Ex-

press—Why the Supreme Court Got It Wrong, 34 BYU J. Pus. L.

277, 293-99 (2020) (“The poor subsidizing the rich due to com-

petitive restraints is exactly what the Sherman Act was

implemented to prevent. .. . This Robin-Hood-in-reverse system

causes significant harm to competition in the form of su-

pracompetitive prices.”), and Br. for Amici Curiae John M.

Connor, et al. in Supp. of Pet’rs, Ohio v. Am. Express, 585 U.S.

529, 2017 WL 6492474, at *25 (“[C]ustomers, who tend to have

incomes or credit scores too low to qualify for high rewards credit

cards, will... end up subsidizing the rewards of more affluent

cardholders. ... This is further evidence of inefficient pricing and

adverse impacts on consumers that are not Amex card users.”).

Thus, given the lack of caselaw and divergence of scholarly opin-

ions, the court rejects Amex’s argument that Plaintiffs’ cross-

subsidization theory “is wrong as a matter of law.” (Amex’s Fifth

Mot. at 1.)

The court further concludes that the relevance of cross-subsidi-

zation evidence is not substantially outweighed by a danger of

unfair prejudice or confusing the issues. Amex’s argument that

cross-subsidization evidence would confuse or mislead the jury

assumes that cross-subsidization is irrelevant to anticompetitive

effects. (Amex’s Fifth Mot. at 7.) Likewise, Amex’s assertion that

it would be prejudiced by Plaintiffs’ “late” attempt to “change

38

course” also presumes that cross-subsidization cannot constitute

direct evidence of anticompetitive effects. (Id. at 3, 8.) While

Amex contends that Plaintiffs “disclaimed reliance on [cross-sub-

sidization] by repeatedly asserting that they are only pursuing a

direct evidence case based on the idea that the NDPs harm com-

petition because they result in higher two-sided prices,” (id. at

8), Plaintiffs assert that they “are not raising a different theory of

liability by presenting cross-subsidization evidence” because, in

their view, cross-subsidization is direct evidence of anticompeti-

tive effects, (Pls.’ Fifth Opp. at 3, 6.) Thus, Amex’s claim of

surprise or prejudice is premised on its own assumption that

cross-subsidization does not constitute direct evidence of anti-

competitive effects.

In any event, Amex cannot be surprised by the inclusion of cross-

subsidization evidence. As Plaintiffs point out, cross-subsidiza-

tion “has been a part of [their] case since the beginning.” (Id. at

1.) It is mentioned in each of their complaints, in Dr. Lamb’s re-

port, and in Amex’s own expert’s report, among other places.

(Compl. (Dkt. 1) 497, 120; Am. Compl. (Dkt. 68) {4 7, 135; Sec-

ond Am. Compl. (Dkt. 187) 7, 132; Lamb Report {4 302, 331-

39; Gaier Report (Dkt. 139-17) {{ 75-80, 104.) While Amex

claims that Plaintiffs “never disclosed [in connection with sum-

mary judgment briefing] that they intended to pursue a case

based on alleged cross-subsidization,” Amex cites no authority

that would require Plaintiffs to make such a disclosure.!° (Amex’s

10 Amex cites USA Petrol. Co. v. Atl. Richfield Co., 13 F.3d 1276 (9th Cir.

1994) in support of its assertion that Plaintiffs “should not be permitted to

resurrect” a theory on which they “denied Amex the opportunity to secure

summary judgment.” (Amex’s Fifth Mot. at 8.) In addition to being out-of-

circuit, USA Petrol. is inapposite. In that case, the Ninth Circuit concluded

that the plaintiff had waived an alternative theory of liability by failing to

raise it in its opposition to summary judgment. USA Petrol. Co., 13 F.3d at

1280-82. USA Petrol. did not grapple with the issue presented here:

whether Plaintiffs’ alleged representation at summary judgment that they

39

Fifth Mot. at 1, 7-9.) And the fact that Amex failed to prepare for

cross-subsidization evidence in the lead-up to trial is again a

product of its own assumption that cross-subsidization is not part

of Plaintiffs’ “direct evidence theory.” (Id. at 8.) Without evidence

of an explicit representation by Plaintiffs that they would not in-

troduce evidence of cross-subsidization at trial, the court cannot

accept Amex’s claim of surprise or unfair prejudice.

Finally, the court rejects Amex’s claim that cross-subsidization ev-

idence would “be an impermissible appeal to class-based

prejudices.” (Id. at 9.) While “appeals to class prejudice are highly

improper,” the cases cited by Amex in support of its argument

are factually distinguishable. United States v. Socony-Vacuum Oil

Co., 310 U.S. 150, 239 (1940). In Socony-Vacuum Oil Co., an an-

titrust case brought by the federal government, the Supreme

Court criticized the statements made to the jury by government

counsel that improperly appealed to class-based prejudices, in-

cluding that the case involved the “biggest men” in the country

who “controll[ed] vast volumes of financial influence,” that

“these more powerful people are above the law and can’t be

reached and can’t be brought to book,” and other similar state-

ments. Id. at 237-39. Likewise, in McMennamin, the district court

set aside a damages verdict after defense counsel’s summation

focused at length on the plaintiffs wealth and privilege, which

the court characterized as a “blatant appeal to class prejudice.”

McMennamin v. Plaza Hotel, No. 82-CV-6274 (RO), 1984 WL

572, at *1-2 (S.D.N.Y. July 9, 1984). Lastly, in Retamosa, the dis-

trict court granted the defendant’s motion to preclude evidence

or argument that jurors should base their damages verdict on “an

amount the jurors[] would charge if they endured similar injuries

would pursue only a direct liability theory at trial, which Amex assumed to

exclude evidence of cross-subsidization, requires preclusion of cross-subsi-

dization evidence at trial pursuant to Rule 403.

40

or that a verdict for the Plaintiff will somehow make the commu-

nity a safer and better place to live and work.” Retamosa v. Target

Corp., No. 19-CV-5797 (DSF), 2021 WL 4499236, at *1 (C.D.

Cal. May 4, 2021). The court agreed with the defendant that such

arguments had “a substantial likelihood of unfairly prejudicing

the jury because [they] may encourage the jury to render a ver-

dict based on personal interest and bias rather than on the

evidence.” Id.

Here, the court is not faced with inappropriate, blatant appeals

to class-based prejudices made directly to the jury. Nor do Plain-

tiffs intend to ask jurors to assess damages based on an amount

they would prefer if they had suffered the same injuries, or based

on their own view of how the market should operate. Rather,

cross-subsidization is simply another aspect of Plaintiffs’ theory

of anticompetitive harm. It is no more an appeal to class-based

prejudices than other evidence of harm to competition in the

market. Therefore, the court concludes that evidence of cross-

subsidization, at least as currently articulated, would not imper-

missibly appeal to class-based prejudices.

In sum, the court concludes that evidence of cross-subsidization

is relevant, and that its relevance is not substantially outweighed

by a danger of unfair prejudice or confusing the issues. Amex’s

fifth motion in limine is denied.

V. CONCLUSION

For the reasons stated above, Plaintiffs’ motion for reconsidera-

tion is GRANTED, Plaintiffs’ fifth motion in limine is GRANTED,

Plaintiffs’ sixth motion in limine is DENIED, Amex’s fourth mo-

tion in limine is GRANTED in part and DENIED in part, and

Ameyx’s fifth motion in limine is DENIED.

41

The court rules as follows:

e Plaintiffs’ motion for reconsideration as to PX 74, 7a, 76,

and 79 is GRANTED. These exhibits are no longer pre-

cluded pursuant to the court’s prior decision. The parties

are DIRECTED to remove any DOJ trial exhibit stamps

from PX 74, 75, 76, and 79.

e Plaintiffs’ request to exclude evidence or argument con-

cerning Plaintiff Andrew Amend’s involvement in prior

litigation is GRANTED.

e Plaintiffs’ request to preclude Sarah Wood from testifying

about events regarding Amex’s Australia experience that

occurred prior to February 2019 is DENIED.

e Amex’s request to preclude Plaintiffs from disclosing PX

70, 73, 84, or 95 to the jury is DENIED as to PX Fa

and 84, and GRANTED as to PX 95. The parties are DI-

RECTED to remove any DOJ trial exhibit stamps from PX

70, 73, and 84, The parties may propose a limiting in-

struction to be read in the event that Dr. Lamb discloses

the contents of PX 84 to the jury.

e Amex’s request to preclude Plaintiffs from introducing

evidence or argument about cross-subsidization as a ba-

sis for suggesting that Amex’s NDPs_ caused

anticompetitive effects or harm is DENIED.

SO ORDERED.

Dated: Brooklyn, New York

July!F, 2025

S[Nicholas G. Govaufis

NICHOLAS G. GARAUFI

United States District Judge

42