Opinion
No. 09-4846-cv.
December 16, 2010.
Appeal from a judgment of the United States District Court for the Southern District of New York (William H. Pauley III, Judge).
UPON CONSIDERATION WHERE-OF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
Joseph L. Clasen (Thomas J. Donlon, on the brief), Robinson Cole LLP, Stamford, CT, for Non-Party Appellant.
Merrill G. Davidoff (Ruthanne Gordon and David A. Langer, on the brief), Berger Montague, P.C., Philadelphia, PA; Bonny E. Sweeney and Joseph D. Daley, Robbins Geller Rudman Dowd LLP, San Diego, CA; Sanford Svetcov and Dennis J. Herman, Robbins Geller Rudman Dowd LLP, San Francisco, CA, for Plaintiffs-Appellees.
Brian P. Brosnahan, Kasowitz, Benson, Torres Friedman LLP, San Francisco, CA; Jay N. Fastow, Dickstein Shapiro LLP, New York, NY; Fiona A. Schaeffer and Eric S. Hochstadt, Weil, Gotshal Manges LLP, New York, NY, for Defendants-Appellees.
SUMMARY ORDER
This appeal arises out of a multi-district class litigation challenging the currency conversion practices of the consumer payment card industry. Plaintiffs allege violations of the Sherman Act, 15 U.S.C. § 1 et seq., the Truth in Lending Act, 15 U.S.C. § 1601 et seq., and the South Dakota Deceptive Trade Practices Act arising from an alleged price-fixing conspiracy among VISA, MasterCard, Citicorp Diners Club, Inc., and assorted banks (jointly, "defendants") concerning foreign currency conversion fees. We assume the parties' familiarity with the facts and procedural history of this action and offer further elaboration as necessary to explain our holding.
Following a series of mediation sessions held between February 2005 and March 2006 and further negotiation, the parties signed a Settlement Agreement on July 20, 2006. The Settlement Agreement provided for the payment of $336 million and for certain injunctive relief running for a five-year period beginning on July 25, 2006. The District Court appointed a Special Master to work with the parties to review and amend, as appropriate, the plan for class notice and distribution of the net settlement fund. On July 1, 2009, the Special Master recommended that so-called "Travel Agency" claims by three travel booking companies, including non-party appellant Priceline.com, Inc. ("Priceline"), be denied because traveling consumers, not the travel agencies, paid the contested foreign transaction fees. Later disclosures showed that, in fact, Priceline paid the contested foreign transaction fees. Priceline now appeals an order of the District Court, dated October 22, 2009, ruling that it is not a member of the settlement class, see In re Currency Conversion Fee Antitrust Litig., 263 F.R.D. 110 (S.D.N.Y. 2009).
"[W]e apply an abuse-of-discretion standard to both the lower court's ultimate determination on certification, as well as to its rulings that the individual [Federal] Rule [of Civil Procedure] 23 requirements have been met." In re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29, 34 (2d Cir. 2009).
According to the terms of the Settlement Agreement, we apply New York law. A-283. See Lauritzen v. Larsen, 345 U.S. 571, 588-89, 73 S.Ct. 921, 97 L.Ed. 1254 (1953) ("Except as forbidden by some public policy, the tendency of the law is to apply in contract matters the law which the parties intended to apply."). "[I]f a contract is unambiguous on its face, the parties' rights under such a contract should be determined solely by the terms expressed in the instrument itself rather than from extrinsic evidence as to terms that were not expressed or judicial views as to what terms might be preferable." Waldman v. Riedinger, 423 F.3d 145, 149 (2d Cir. 2005) (internal quotation marks omitted and alteration in original). Contract language can be considered unambiguous when it has "a definite and precise meaning, unattended by danger of misconception in the purport of the [contract] itself, and concerning which there is no reasonable basis for a difference of opinion." Care Travel Co. v. Pan Am. World Airways, Inc., 944 F.2d 983 (2d Cir. 1991) (internal quotation marks omitted and alteration in original).
In its October 22, 2009 order, the District Court explained that
Priceline's unique payment facility with Wright [the bank which provided Priceline with its MasterCard credit] is not the type of arrangement included in this case. The unique terms and structure of that payment facility — its rebates, its hundreds of thousands of credit card numbers, its flexible terms — make it clear that Priceline is not a holder of a MasterCard-branded credit card within the meaning of the Settlement Agreement. Indeed, while Priceline is correct that there is no requirement that the class members be consumers, sophisticated payment facilities like that utilized by Priceline are simply far outside of any reasonable concept of a "holder" of a credit card, and therefore dehors the Settlement Class.
SPA 29.
Both Priceline and defendants argue that the District Court's exclusion of Priceline is based on a misinterpretation of the terms of the Settlement Agreement. Specifically, they argue that the District Court erred in excluding Priceline from the settlement class by relying upon concepts of "uniqueness" and "sophistication" that do not appear in the Settlement Agreement. They argue, moreover, that the District Court erred by considering the details of Priceline's complex credit relationship with Wright bank, noting that according to the law of the Court, "[i]f a contract is unambiguous on its face, the parties' rights under such a contract should be determined solely by the terms expressed in the instrument itself rather than from extrinsic evidence," Waldman, 423 F.3d at 149 (internal quotation marks omitted).
The District Court acknowledged that the terms of the Settlement Agreement are broad, and that there is no requirement in the Settlement Agreement that class members need to be consumers. It nevertheless denied Priceline membership in the class, reasoning that Priceline could not be considered a card holder under any "reasonable" concept of the term "card holder."
We agree that Priceline's relationship with the credit card companies evinces a more complicated relationship than that of other members of the class in this matter, and are satisfied that the District Court offered an adequate explanation of why Priceline was excluded. Although corporate entities may use more complicated credit methods than individual card holders, in this case we agree that Priceline did not fit into the definition of a class member described in the Settlement Agreement.
CONCLUSION
Accordingly, the judgment of the District Court is AFFIRMED.