BANXCORP v. BANKRATE,INC.
Filing
491
OPINION. Signed by Judge Claire C. Cecchi on 5/29/2020. (ld, )
Case 2:07-cv-03398-CCC-JBC Document 491 Filed 05/29/20 Page 1 of 8 PageID: 29843
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BANXCORP,
Civil Action No.: 07-3398 (CCC)
Plaintiff,
OPINION
v.
BANKRATE, INC.,
Defendant.
CECCHI, District Judge.
This matter comes before the Court by way of Plaintiff Banxcorp’s (“Plaintiff”) motion for
reconsideration. ECF No. 483. Defendant Bankrate, Inc. (“Defendant”) opposed Plaintiff’s
motion. ECF No. 489. Plaintiff filed a reply brief in support of its motion. ECF No. 490. The
Court decides this matter without oral argument pursuant to Rule 78(b) of the Federal Rules of
Civil Procedure.
For the reasons set forth below, the Court denies Plaintiff’s motion for
reconsideration. 1
I.
BACKGROUND
This case has a lengthy history. The parties both operated websites that allowed visitors to
obtain interest rate information for various financial products. ECF No. 481 at 3. During the time
period at issue, both BanxQuote.com (operated by Plaintiff) and Bankrate.com (operated by
Defendant) offered information concerning bank rates. A visitor to either of those websites could
“interact” with the websites by typing in parameters for a particular financial product which would
1
The Court notes Defendant’s contention that Plaintiff’s motion for reconsideration was
untimely under Local Civil Rule 7.1(i) as it was filed twenty-one days after the Court’s Opinion
and Order were entered. See Stokes v. Internal Affairs Section, No. 19-20414, 2020 WL
2537575, at *2 (D.N.J. May 19, 2020) (denying motion for reconsideration as it was not filed
within fourteen days of the challenged opinion as required by Local Rule 7.1(i)). Nonetheless,
the Court will consider Plaintiff’s motion for reconsideration on its merits here.
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cause the website to generate a table listing interest rates for that financial product. See October
14, 2015 Oral Argument Transcript at 21:4-23:5, 90:9-20. Plaintiff lost its value as a going concern
and exited the market by December 31, 2010, allegedly due to Defendant’s anti-competitive
behavior. ECF No. 481 at 2. Plaintiff filed the instant suit in July 2007 claiming that Defendant’s
“antitrust misconduct has nearly destroyed Plaintiff as a company” and asserting violations of state
and federal antitrust statutes. ECF No. 1 at 1–2. Plaintiff’s primary assertion appears to be that
Defendant used predatory pricing, illegal partnership agreements, and anticompetitive mergers to
obtain a monopoly on the relevant market. Id. The case has been assigned to numerous District
Judges over its thirteen year existence, was referred to mediation unsuccessfully, and is currently
proceeding on the seventh amended complaint. ECF No. 378. The parties cross-moved for
summary judgment on the seventh amended complaint and oral argument was heard on the crossmotions. ECF Nos. 389, 405, 406, and 473.
On March 21, 2019, this Court issued an opinion (the “Opinion”) and order granting
Defendant’s motion for summary judgment and denying Plaintiff’s motion for summary judgment.
ECF No. 481. The Court found in favor of Defendant on whether Defendant: (1) monopolized or
attempted to monopolize interstate commerce in violation of the Sherman Act (id. at 8–22),
(2) violated the Clayton Act through its acquisitions of other firms (id. at 22–23), or (3) violated
the New Jersey Antitrust Act (id. at 23–24). Plaintiff subsequently filed both a motion for
reconsideration and a notice of appeal. ECF Nos. 483 and 484. The Court of Appeals for the Third
Circuit issued an order staying the appeal pending the outcome of Plaintiff’s motion for
reconsideration on April 15, 2019. Subsequently, Defendant filed a brief in opposition (ECF No.
489) and Plaintiff filed a reply (ECF No. 490).
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II.
LEGAL STANDARD
“[R]econsideration is an extraordinary remedy, that is granted ‘very sparingly.’” Brackett
v. Ashcroft, No. 03-3988, 2003 WL 22303078, at *2 (D.N.J. Oct. 7, 2003) (emphasis added)
(citations omitted); see also Fellenz v. Lombard Inv. Corp., 400 F. Supp. 2d 681, 683 (D.N.J.
2005). A motion for reconsideration “may not be used to relitigate old matters, nor to raise
arguments or present evidence that could have been raised prior to the entry of judgment.” P.
Schoenfeld Asset Mgmt., LLC v. Cendant Corp., 161 F. Supp. 2d 349, 352 (D.N.J. 2001). To
prevail on a motion for reconsideration, the moving party must “set[] forth concisely the matter or
controlling decisions which the party believes the Judge or Magistrate Judge has overlooked.” L.
Civ. R. 7.1(i).
The Court will reconsider a prior order only where a different outcome is justified by:
“(1) an intervening change in controlling law; (2) the availability of new evidence not available
previously; or (3) the need to correct a clear error of law or prevent manifest injustice.” N. River
Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995) (citations omitted). A
court commits a clear error of law “only if the record cannot support the findings that led to that
ruling.” ABS Brokerage Servs. v. Penson Fin. Servs., Inc., No. 09-4590, 2010 WL 3257992, at *6
(D.N.J. Aug. 16, 2010) (citing United States v. Grape, 549 F.3d 591, 603–04 (3d Cir. 2008)).
“Thus, a party must . . . demonstrate that (1) the holdings on which it bases its request were without
support in the record, or (2) would result in ‘manifest injustice’ if not addressed.” Id. “Mere
‘disagreement with the Court’s decision’ does not suffice.” Id. (quoting P. Schoenfeld, 161 F.
Supp. 2d at 353).
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III.
ANALYSIS
The Court finds that reconsideration of its March 21, 2019 Opinion is not warranted.
Plaintiff raises numerous contentions in the motion for reconsideration. First, Plaintiff contends
that there is new evidence of Defendant’s fraudulent scheme because the former chief financial
officer of Defendant recently received a 10-year prison sentence for accounting and securities
fraud. ECF No. 483-1 at 7. Second, Plaintiff contends that the Court erred by relying on
Defendant’s allegedly falsified figures and economic analysis, and construing all evidence in the
light most favorable to the Defendant. Id. at 9–14. Third, Plaintiff contends that the Court erred
by considering each aspect of Defendant’s conduct in isolation rather than looking at Defendant’s
conduct as a whole. Id. at 16. Fourth, Plaintiff contends that the Court erred in reversing the
findings of district judges who previously presided over the case. Id. Fifth, Plaintiff contends that
the Court’s ruling erred by characterizing statements made by Defendant’s former chief executive
officer during quarterly earning calls as anecdotal. Id. at 19. Finally, Plaintiff contends that the
Court erred by finding that Plaintiff failed to provide sufficient evidence to support its Sherman
Act and Clayton Act claims. Id. at 22.
The Court finds Plaintiff’s contentions unavailing and notes that several of the arguments
are improper attempts to relitigate issues already considered by this Court. See Oritani Sav. &
Loan Ass’n v. Fid. & Deposit Co. of Maryland, 744 F. Supp. 1311, 1314 (D.N.J. 1990) (citations
and quotation marks omitted) (“A motion for reconsideration is improper when it is used to ask
the Court to rethink what i[t] had already thought through—rightly or wrongly.”). Nonetheless,
the Court will consider each of Plaintiff’s arguments below.
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First, Plaintiff’s purportedly new evidence is not new. The Department of Justice press
release cited by Plaintiff that discusses the sentencing of Defendant’s former chief financial
officer, Edward DiMaria, for accounting fraud, was published over five months before the March
21, 2019 Opinion was issued and the relevant conduct has been public knowledge since at least
September 2015. See ECF No. 489 at 5. This evidence was available to Plaintiff prior to the release
of the Opinion on March 21, 2019 and could have been brought to the Court’s attention prior to
that date. See Cranmer v. Philadelphia Indem. Ins. Co., No. 14-3206, 2016 WL 3566728, at *4
(D.N.J. June 30, 2016) (“[A]ll of the evidence submitted in support of the present motion appears
to have been available during the pendency of summary judgment, and Plaintiffs provide no
explanation why this evidence was not submitted in opposition to the motion. This alone
constitutes a sufficient basis for the court to disregard the new evidence.”) The Court also agrees
with Defendant that this “new” evidence of Mr. DiMaria’s accounting and securities fraud
conviction does not appear material to the claim at issue here that Defendant monopolized the
financial product interest rate market. See ECF No. 489 at 6. For both of these independent
reasons, Plaintiff’s first argument for reconsideration fails.
Second, Plaintiff’s contention that the Court relied upon the withdrawn report of
Defendant’s expert Mark J. Glueck is incorrect. ECF No. 483-1 at 9. Glueck’s credentials and
expertise came under question during the course of this litigation and Defendant sought summary
judgment without the support of any of Glueck’s work. See ECF No. 443 at 4 n.2 (“[Defendant]
has already informed the Court that it is not relying upon Mr. Glueck’s opinions in any way in
connection with the pending summary judgment motions, and [Defendant] has asked the Court to
disregard the few citations to Mr. Glueck’s reports contained in the summary judgment briefs.”).
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As a result, the Court explicitly noted it was not relying on the expert report of Glueck and arrived
at its decision without referring to the disputed materials or any portions of Defendant’s
submissions that cited to Glueck’s materials. See ECF No. 481 at 5–6 n.4 (“Accordingly, the Court
has disregarded any citation to Mr. Glueck’s report in the summary judgment briefing.”).
Plaintiff’s second argument for reconsideration is thus inaccurate and fails.
Third, Plaintiff is incorrect that the Court improperly considered Defendant’s conduct in
isolation, rather than as a whole, in its monopoly analysis. Plaintiff argues that “[i]t was clear error
for the Court to consider each aspect of Defendant’s conduct in isolation rather than looking to the
monopolist’s conduct taken as a whole.” ECF No. 483-1 at 16. Plaintiff fails to acknowledge the
detailed analysis set forth in the Opinion wherein the Court considered all of the evidence Plaintiff
offered as both direct and circumstantial evidence of Defendant’s monopolization. The Court
found that Plaintiff “adduce[d] neither direct nor circumstantial evidence that Bankrate possessed
monopoly power” as required to support its various antitrust claims. Id. at 9. Plaintiff’s mere
disagreement with the Court’s holding does not equate to an error of law and Plaintiff’s third
argument for reconsideration fails.
Fourth, Plaintiff’s argument that the Opinion reverses a prior decision of Judge Esther Salas
is incorrect. Plaintiff argues that Judge Salas previously held that Plaintiff plausibly alleged
monopoly power in connection with its antitrust claim and that statements made by Defendant’s
officers during earnings calls were sufficient to support Plaintiff’s claims. ECF No. 483-1 at 18–
20. Plaintiff, however, ignores the fact that Judge Salas’ holdings came in a decision on
Defendant’s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), where Judge
Salas was required to accept the facts in the fourth amended complaint as true and was determining
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solely whether the fourth amended complaint contained plausible claims. See ECF No. 298 at 35
(emphasis added) (“[A]llegations in the 4AC, taken together, when accepted as true, plausibly
support a showing of the first element, monopoly power.”); id. at 39. In contrast, here the Court
considered the evidence submitted by the parties as is required at the summary judgment stage of
litigation in accordance with Federal Rule of Civil Procedure 56. See ECF No. 481 at 8. Judge
Salas’ prior ruling does not contradict or prohibit the Court’s rulings at the summary judgment
stage and Plaintiff’s fourth argument for reconsideration fails.
To the extent Plaintiff makes a similar argument with respect to a ruling from Judge Susan
Wigenton on a motion to dismiss in her 2009 opinion, the Court is unpersuaded that
reconsideration is warranted on this basis. In fact, the cited ruling from Judge Wigenton found
that Plaintiff had inadequately defined the relevant market and required Plaintiff to amend the
complaint to address this issue. See ECF No. 75 at 5–6 (“[I]nconsistencies and confusion still cloud
BanxCorp’s definition of the relevant market. These must be corrected.”).
Finally, Plaintiff’s argument that the Court erred in finding that Plaintiff failed to provide
sufficient economic evidence to support its claims is a prohibited attempt to relitigate arguments
previously considered in the Opinion. This argument is clearly improper at this stage of the
litigation and will not be reconsidered by the Court. Gutierrez v. Johnson & Johnson, No. 01-5302
WHW, 2007 WL 1101437, at *4 (D.N.J. Apr. 10, 2007) (“This is not the purpose of a motion for
reconsideration. A party is not entitled to a second bite at the apple.”); P. Schoenfeld Asset Mgmt.,
LLC, 161 F. Supp. 2d at 352 (A motion for reconsideration “may not be used to relitigate old
matters.”).
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Accordingly, Plaintiff has failed to point to any change in controlling law, new evidence
not available previously that alters the Court’s prior decision, or a clear error of fact or law that
must be addressed to avoid manifest injustice. N. River Ins. Co., 52 F.3d at 1218.
IV.
CONCLUSION
For the aforementioned reasons, Plaintiff’s motion for reconsideration (ECF No. 483) is
DENIED. An appropriate Order accompanies this Opinion.
DATE: May 29, 2020
CLAIRE C. CECCHI, U.S.D.J.
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