impermissible appeal to class-based biases where counsel ar- gued “that the case was one which pitted a little and virtuous man of modest resources against a powerful and unscrupulous man with untold wealth”
How later courts described this case
- impermissible appeal to class-based biases where counsel ar- gued “that the case was one which pitted a little and virtuous man of modest resources against a powerful and unscrupulous man with untold wealth”
- “[I]t is settled that a witness’s possi- ble financial stake in the outcome of a case is highly relevant.”
- “Inquiry into a witness’ financial interest in the outcome of a case, and the extent of that interest, is essential if bias is to be uncovered.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DAVID MOSKOWITZ, SHAWN O’KEEFE, RAN
ANDREW AMEND, ALLIE STEWART, ANGELA Nocy 56 5 (NGG) ORG)
CLARK, RICKY AMARO, ABIGAIL BAKER, ( )
JAMES ROBBINS IV, EMILY COUNTS, DEBBIE
TINGLE, WYATT COOPER, 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.
The court assumes familiarity with the factual background and
procedural history of this antitrust class action, in which trial is
set to begin on August 11, 2025. This Memorandum and Order
pertains to Defendants American Express Company and Ameri-
can Express ‘Travel Related Services Company, Inc.’s
(collectively, “Amex”) motion to preclude evidence or argument
concerning the personal wealth or compensation of Amex CEO
Stephen Squeri. (Amex Letter Dated 7/28/2025 (Dkt. 338) at 1.)
For the reasons that follow, Amex’s motion is GRANTED in part
and DENIED in part.
Plaintiffs deposed Mr. Squeri on July 25, 2025. (Plaintiffs’ Letter
Dated 7/29/2025 (Dkt. 339) at 1.) Plaintiffs intend to play por-
tions of Mr. Squeri’s deposition during their case-in-chief at trial.
(Amex Letter Dated 7/28/2025 at 1; Plaintiffs’ Letter Dated
8/3/2025 (Dkt. 345) at 1.) Amex intends to call Mr. Squeri for
live testimony in its own case. (Trial Tr. Dated 7/29/2025 65:3-
6 (“I can promise you, [Y]our Honor, in court right now, barring
tragedies that are outside of our control . . . we are calling Mr.
Squeri. He’s going to be the first witness in our case.”).)
Amex moves to preclude evidence or argument concerning the
personal wealth or compensation of Mr. Squeri.! (Amex Letter
Dated 7/28/2025 at 1; see also Amex Letter Dated 8/3/2025
(Dkt. 344) at 1; Squeri Depo. Excerpt 76:7-91:2 (containing ob-
jected-to portions of Mr. Squeri’s testimony).) Specifically, Amex
objects to Plaintiffs playing a portion of Mr. Squeri’s deposition
testimony in which he reviews Amex’s Proxy Statement for 2023
(the “Proxy Statement”). (Amex Letter Dated 7/28/2025 at 1-3;
Amex Letter Dated 8/3/2025 at 1.) The Proxy Statement, in turn,
outlines the various components of Mr. Squeri’s compensation,
including $15 million in outstanding options that could vest in
the next two years if Amex’s stock reaches a particular target.
(Squeri Depo. Excerpt 78:10-86:6.) Amex also objects to live
questioning of Mr. Squeri regarding his wealth or compensation.
(Amex Letter Dated 7/28/2025 at 1-3; Amex Letter Dated
8/3/2025 at 1.) Amex argues that discussion of the precise
amount and components of Mr. Squeri’s compensation is irrele-
vant and unfairly prejudicial in violation of Rules 401, 402, and
403 of the Federal Rules of Evidence. (Amex Letter Dated
7/28/2025 at 1-3; Amex Letter Dated 8/3/2025 at 1.) Amex con-
tends that such evidence would be an impermissible “appeal to
class prejudice” and would “only serve to inflame the jury.”
(Amex Letter Dated 7/28/2025 at 2; Amex Letter Dated
8/3/2025 at 1.)
1In its July 28, 2025 letter, Amex also objected to the portion of Mr.
Squeri’s deposition testimony relating to when he learned that he would
be testifying at trial and the measures he has taken to prepare for his testi-
mony. (Amex Letter Dated 7/28/2025 at 1, 3-4; Squeri Depo. Excerpt
(Dkt. 338-1) at 7:12-9:2.) In their July 29, 2025 responsive letter, Plaintiffs
“with[drew] the challenged pages of questioning about Mr. Squeri’s prep-
aration.” (Plaintiffs’ Letter Dated 7/29/2025 at 2 n.3.)
However, “in the interest of narrowing the dispute, and while
preserving all of [its] objections to evidence of compensation,”
Amex “understand[s] the [cJourt’s view” that Plaintiffs should be
permitted to inquire as to Mr. Squeri’s base salary: for 2022, $1.5
million. (Amex Letter Dated 8/3/2025 at 1.) Additionally, Amex
does not object to the portion of Mr. Squeri’s deposition in which
he states, “Every aspect of my compensation is affected by my
company’s performance.” (Squeri Depo. Excerpt 77:24-25; Amex
Letter Dated 8/3/2025 at 1 (quoting Squeri Depo. Excerpt 77:24-
25).) Amex contends that this information “is more than enough
to address the supposed bias issue.” (Amex Letter Dated
8/3/2025 at 1.)
Plaintiffs oppose Amex’s request. (Plaintiffs’ Letter Dated
7/29/2025; Plaintiffs’ Letter Dated 8/3/2025.) First, Plaintiffs
contend that Mr. Squeri’s compensation is probative of his bias,
ie., his financial interest in the outcome of the litigation. (Plain-
tiffs’ Letter Dated 8/3/2025 at 1-3.) And Plaintiffs assert that the
amount of Mr. Squeri’s compensation, not simply the fact of his
compensation, is relevant because “[s]ome people would lie un-
der oath for a lot of money but not for a little.” (Id. at 2 (quoting
United States v. Harris, 185 F.3d 999, 1008 (9th Cir. 1999)).)
Plaintiffs point out that their case is focused on whether Amex
receives supracompetitive revenues because of its Non-Discrimi-
nation Provisions; as such, “anything that threatens to reduce
those revenues . . . threatens [Mr. Squeri’s] compensation” and
might cause him to slant his testimony in favor of Amex. (Id. at
3.) Thus, Plaintiffs contend that Mr. Squeri’s compensation is rel-
evant to bias. (Id. at 1-3.)
Second, Plaintiffs assert that evidence or argument concerning
Mr. Squeri’s compensation is not unfairly prejudicial. (Plaintiffs’
Letter Dated 7/29/2025 at 1; Plaintiffs’ Letter Dated 8/3/2025
at 3-4.) Plaintiffs argue that Amex “conflates a witness’s income
derived from a party with the witness’s general wealth.” (Plain-
tiffs’ Letter Dated 8/3/2025 at 3.) However, Plaintiffs do not
intend to argue that Mr. Squeri is wealthy in general, “but that
he receives income from Amex that is dependent on his perfor-
mance.” (Id. at 2-3.) Furthermore, to the extent it is prejudicial
to emphasize a party’s wealth, Plaintiffs point out that Mr. Squeri
is not a party to this action. (id. at 3-4.) Accordingly, Plaintiffs
contend that they “should be permitted to cross-examine Mr.
Squeri regarding his Amex-related income.” (Id. at 4.)
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
revealing 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
2 When quoting cases, unless otherwise noted, all citations and internal
quotation marks are omitted, and all alterations are adopted.
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
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 concerning Mr. Squeri’s com-
pensation is admissible for impeachment purposes. Mr. Squeri’s
compensation is probative of his bias because it “might lead
[him] to slant, unconsciously or otherwise, his testimony in favor
of or against a party.” Abel, 469 U.S. at 52. And the precise
amount of his gross annual income, coupled with the fact that he
stands to gain $15 million in options if Amex’s stock reaches a
certain target, is relevant because the jury might reasonably infer
that such compensation provides an even greater incentive for
Mr. Squeri to slant his testimony in favor of Amex. For example,
the jury might reasonably infer that Mr. Squeri has a motive to
testify favorably to Amex because, if Plaintiffs prevail, Amex’s
revenues may decrease and its stock value may fall, such that Mr.
Squeri’s options would not vest and he would not obtain the $15
million in outstanding options. (See Plaintiffs’ Letter Dated
8/3/2025 at 3; Squeri Depo. Excerpt 81:16-83:11.) As Amex it-
self has recognized, this sort of evidence “is almost always
relevant because the jury, as finder of fact and weigher of credi-
bility, has historically been entitled to assess all evidence which
might bear on the accuracy and truth of a witness’ testimony.”
(Amex’s Opp. to Plaintiffs’ Fourth Motion in limine (Dkt. 273) at
11 (quoting Abel, 469 U.S. at 52).) Thus, with the limitations de-
scribed in detail below, the court concludes that evidence of Mr.
Squeri’s compensation is relevant. See United States v. Reed, 437
F.2d 57, 59 (2d Cir. 1971) (“[I]t is settled that a witness’s possi-
ble financial stake in the outcome of a case is highly relevant.”);
United States v. Int'l Bus. Machs. Corp., 84 F.R.D. 651, 652
(S.D.N.Y. 1979) (“Inquiry into a witness’ financial interest in the
outcome of a case, and the extent of that interest, is essential if
bias is to be uncovered.”); United States v. Donziger, Nos. 19-CR-
561 (LAP), 11-CV-691 (LAK), 2021 WL 1865376, at *5 (S.D.N.Y.
May 10, 2021) (“[I]ssues of financial bias and thus credibility are
... relevant to a witness’s testimony.”).
The court further concludes that the probative value of Mr.
Squeri’s compensation is not substantially outweighed by a dan-
ger of unfair prejudice or distracting the jury. Fed. R. Evid. 403.
Mr. Squeri’s compensation is a fact; it is not an appeal to class-
based prejudices until Plaintiffs make such an appeal. And the
court is prepared, upon an objection from Amex, to limit at-
tempts by Plaintiffs to argue that the jury should render a verdict
for Plaintiffs because Amex and its CEO are wealthy and Plaintiffs
are not. See Koufakis v. Carvel, 425 F.2d 892, 902 (2d Cir. 1970)
(impermissible appeal to class-based biases where counsel ar-
gued “that the case was one which pitted a little and virtuous
man of modest resources against a powerful and unscrupulous
man with untold wealth”). Plaintiffs intend to offer Mr. Squeri’s
compensation not as general proof of his wealth nor to argue that
the jury should render a verdict for the “little guy,” but rather, as
proof that Mr. Squeri’s significant compensation is entirely tied
up with Amex’s performance, thus providing him with a motive
to slant his testimony in favor of Amex and against Plaintiffs. And
any expenditure of time on this issue will be minimized by the
limitations described below. As such, the court concludes that the
probative value of Mr. Squeri’s compensation is not substantially
outweighed by a danger of unfair prejudice or distracting the
jury.
The in-circuit cases cited by Amex do not convince the court oth-
erwise. In Kaufman, the court found the wealth of the decedent-
defendant irrelevant to several issues concerning the underlying
issue of the existence of an oral contract, including the parties’
professional relationship and past dealings, and the plaintiffs
state of mind and concerns about the decedent-defendant’s prior
financial dealings. Kaufmann LLC v. Est. of Feinberg, No. 13-CV-
1259 (VAB), 2022 WL 13845083, at *1, 9 (D. Conn. Oct. 24,
2022). However, the court did not address whether evidence of
the decedent’s income was admissible to prove his bias in testify-
ing at trial—logically so, given that he was deceased. Id. at *9.
Additionally, Koufakis and Stahl involved references to a party’s
wealth beyond that which was necessary to prove potential bias.
Koufakis, 425 F.2d at 902; United States v. Stahl, 616 F.2d 30, 32-
33 (2d Cir. 1980). For example, in Koufakis, plaintiffs counsel
asked one defense witness whether he “had been to all five of
[defendant’s] townhouses” and repeatedly referred to the de-
fendant as “a millionaire” and “a multi-millionaire.” Koufakis,
425 F.2d at 902. The Second Circuit determined these and simi-
lar remarks, “which can be taken as suggesting that the
defendant should respond in damages because he is rich and the
plaintiff is poor,” were improper and grounds for a new trial. Id.
And in Stahl, the prosecutor asked the defendant about his net
worth and “how he had managed to build up such a fortune,”
while repeatedly referring to the defendant as “a multi-million-
aire businessman in real estate,” whose “whole life is geared to
buy property” and “to make money in real estate, money, money,
money.” Stahl, 616 F.2d at 32. The Second Circuit concluded that
these and other statements amounted to an improper, “persistent
appeal to class prejudice” and were grounds for a new trial. Id. at
33.
Here, there is no indication that Plaintiffs intend to raise similar
appeals to class-based biases at trial, and should they attempt to
do so, Amex will be free to object. But Plaintiffs may conduct a
limited inquiry into Mr. Squeri’s compensation to demonstrate
his potential bias.
For the reasons articulated above, Plaintiffs may play the portion
of Mr. Squeri’s deposition beginning at 76:9 and ending at 78:22,
which excludes discussion of the Proxy Statement but includes
Mr. Squeri’s statement that “[e]very aspect of my compensation
is affected by my company’s performance.” (Squeri Depo. Excerpt
77:24-25.) The court excludes Mr. Squeri’s discussion of the
Proxy Statement at lines 78:23-91:2 because the precise break-
down of his annual income is irrelevant and risks wasting time,
and discussion of particular aspects of his compensation, such as
his budget for home security and personal use of the company
plane, would be unfairly prejudicial. Wd. 83:20-24.) As such,
when Amex calls Mr. Squeri as a witness, Plaintiffs may inquire
briefly into Mr. Squeri’s approximate annual income.’ The pre-
cise breakdown of his annual income, however, is irrelevant and
risks wasting time. The court will also permit limited inquiry into
Mr. Squeri’s $15 million option arrangement; however, the dis-
cussion of the option arrangement in Mr. Squeri’s deposition at
lines 81:16-83:11 remains excluded. Like Amex’s inquiries into
the Class Representatives’ relationships with counsel, these in-
quiries should be limited and to the point.
3 The court understands, based on Plaintiffs’ counsel’s representations at
the pre-trial conference held on August 1, 2025, that Mr. Squeri’s gross
income for 2021, as reported in 2022, was approximately $33 million.
(Transcript of Pre-trial Conference Dated 8/1/2025 26:3-7.)
Amex’s motion to preclude evidence or argument concerning the
personal wealth or compensation of Mr. Squeri is GRANTED in
part and DENIED in part.
SO ORDERED.
Dated: — Brooklyn, New York
August ), 2025
s/ Nicholas G. Garaufis
NICHOLAS G. GARAUEFIS 4
United States District Judge