Jack Rabbit, LLC v. Visa Inc., et al.

In 2019 the district court approved a $5.6 billion Rule 23(b)(3) damages settlement in this multidistrict antitrust litigation, defining the class as every entity that “accepted” a Visa or Mastercard card during the class period. The Second Circuit affirmed in 2023, holding the class ascertainable because the definition is “objectively guided by federal antitrust standards.” In 2024, on the Visa and Mastercard respondents’ motion to enforce the settlement’s release, the district court construed “accepted” to reach millions of submerchant customers of payment facilitators, and directed that they share in the fund. The Second Circuit affirmed, treating the question as one of the settling parties’ contractual intent, and stated twice that it was not deciding whether those members are direct purchasers, or are otherwise entitled to recover, under the federal antitrust laws. The questions presented are:

1. Whether a federal court may direct that a fixed common fund created to satisfy the claims of a certified Rule 23(b)(3) damages class be distributed to persons whom no court has found entitled to recover under the statute upon which the class’s claims rest, on the basis that the settling parties intended to include them.

2. Whether a court of appeals may affirm such an order while expressly declining to decide whether the persons admitted to the class have any claim under the statute upon which the class’s claims rest.