Savelson et al v. JP Morgan Chase & Co. et al

Filing 61

MDL TRANSFER ORDER NO. 1720: Transferring case to the U.S. District Court, Eastern District of New York. Signed by The Judicial Panel on Multidistrict Litigation, on 06/04/2014. (jlm, COURT STAFF) (Filed on 6/4/2014)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: PAYMENT CARD INTERCHANGE FEE AND
MERCHANT DISCOUNT ANTITRUST LITIGATION

MDL No. 1720

TRANSFER ORDER
Before the Panel:* Pursuant to 28 U.S.C. § 1407(c), defendants1 move to transfer the action
listed on Schedule A (Salveson) to the Eastern District of New York for inclusion in MDL No. 1720.
The Salveson plaintiffs oppose the motion.
In opposing transfer, plaintiffs principally argue that their action presents unique factual
questions because it involves a putative class of cardholders who received Visa and MasterCard
payment cards from defendants, while the plaintiffs in the MDL are merchants. They also note that
they have not sued Visa and MasterCard,2 who are the principal defendants in MDL No. 1720. We
are not persuaded that these arguments compel vacatur. The Salveson plaintiffs allege the same
anticompetitive conduct concerning the establishment of interchange fees and associated rules as the
plaintiffs in MDL No. 1720. Visa and MasterCard are not named as defendants, but the Salveson
plaintiffs allege that they are co-conspirators that acted in concert with the same bank entities who
are defendants in MDL No. 1720. As we often have held, transfer does not require a complete
identity of parties. See In re: Bank of New York Mellon Corp. Foreign Exchange Transactions
Litig., 857 F. Supp. 2d 1371, 1373 (J.P.M.L. 2012). Nor does it require a complete identity of
common factual issues, and the presence of additional facts or differing legal theories is not significant
when, as here, the actions arise from a common factual core. See, e.g., In re: Blue Cross Blue Shield
Antitrust Litig., 908 F. Supp. 2d 1373, 1376 (J.P.M.L. 2012).

*

Judge Lewis A. Kaplan took no part in the decision of this matter. Certain Panel members
who could be members of the putative class in this docket have renounced their participation in the
class and have participated in the decision.
1

JP Morgan Chase & Co.; J.P. Morgan Bank, N.A.; Bank of America Corporation; Bank
of America, N.A.; Capital One F.S.B.; Capital One Financial Corporation; Capital One Bank; HSBC
Finance Corporation; HSBC Bank USA, N.A.; HSBC North American Holdings Inc.; and HSBC
Holdings, PLC.
2

Visa Inc., Visa U.S.A. Inc., and Visa International Service Association (collectively, “Visa”)
and MasterCard Incorporated and MasterCard International Incorporated (collectively,
“MasterCard”).

-2Plaintiffs also argue that transfer will not facilitate coordination of discovery or conserve
judicial resources because discovery in the MDL is almost complete. This argument fails to recognize
recent developments in MDL No. 1720. Over 30 new actions have been transferred or directly filed
in the MDL over the past year, and the transferee court recently established a separate track for the
new actions to ensure coordinated pretrial proceedings. The Salveson action, which is at the same
stage, will benefit from those coordinated proceedings.3
After considering all argument of counsel, we find that this action involves common questions
of fact with the actions previously transferred to MDL No. 1720, and that transfer will serve the
convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.
Moreover, transfer is warranted for the reasons set out in our order directing centralization. In that
order, we held that the Eastern District of New York was an appropriate Section 1407 forum for
actions arising out of allegations “that the imposition of a no-surcharge rule and/or the establishment
of the interchange fee causes the merchant discount fee to be set at supracompetitive levels in
violation of the federal antitrust laws.” See In re: Payment Card Interchange Fee and Merchant
Discount Antitrust Litig., 398 F. Supp. 2d 1356, 1358 (J.P.M.L. 2005). This action involves
substantially similar factual allegations, and thus falls squarely within the subject matter of the MDL.

IT IS THEREFORE ORDERED that pursuant to 28 U.S.C. § 1407, this action is transferred
to the Eastern District of New York and, with the consent of that court, assigned to the Honorable
John Gleeson for inclusion in the coordinated or consolidated pretrial proceedings.

PANEL ON MULTIDISTRICT LITIGATION

John G. Heyburn II
Chairman
Marjorie O. Rendell
Sarah S. Vance
R. David Proctor

3

Charles R. Breyer
Ellen Segal Huvelle

Plaintiffs also contend that defendants waived their right to seek transfer under Section
1407. The Panel finds no evidence of waiver in the exhibits submitted by plaintiffs. In any event, the
Panel has authority to transfer potential tag-along actions upon its own initiative. See 28 U.S.C. §
1407(c).

IN RE: PAYMENT CARD INTERCHANGE FEE AND
MERCHANT DISCOUNT ANTITRUST LITIGATION

MDL No. 1720

SCHEDULE A

Northern District of California
SALVESON, ET AL. v. JP MORGAN CHASE & CO., ET AL., C.A. No. 4:13-05816
1:14-cv-03529

(JG)(JO) EDNY Number

A TRUE COPY ATTEST

06/04/2014

DATED:________________
DOUGLAS C. PALMER
CLERK OF COURT
BY: S/August Marziliano
Case Administration Supervisor