MEMORANDUM & ORDER Plaintiffs B & R Supermarket, Inc., doing business as Milam’s Market (“B & R Supermarket”), Grove Liquors LLC, Strouk Group LLC, doing business as Monsieur Marcel (“Monsieur Marcel”), and Palero Food Corp. and Cagueyes Food Corp., doing business as Fine Fare Supermarket (“Fine Fare Supermarket”), commenced this action against Defendants Visa Inc. and Visa U.S.A., Inc. (collectively “Visa”), Mastercard International Inc. (“Mastercard”), Discover Financial Services (“Discover”), and American Express Co. (“Amex”), alleging violations of the Sherman Act, 15 U.S.C. §§1, 3, and state antitrust and consumer protection laws of California, Florida, and New York, and asserting unjust enrichment claims on behalf of a class of merchants who paid chargebacks as a result of Defendants’ alleged conspiracy (the “Class”). (Compl., Docket Entry No. 1; Am. Compl., Docket Entry No. 291.) Plaintiffs’ claims arise out of Defendants’ processes for adopting the “Europay, Mastercard & Visa” (EMV) standard for card transactions in the United States.1 Plaintiffs allege that Defendants violated antitrust laws by entering into a conspiracy to: (1) adopt the same policy via nearly identical rules for shifting billions of dollars in liability from banks to merchants (“Fraud Liability Shift,” “Liability Shift,” or “FLS”) for fraudulent charges (“chargebacks”); and (2) make the Fraud Liability Shift effective on the same day and in the same manner for all four networks, to prevent merchants from steering customers to use cards with more lenient terms or concessions such as reduced interchange or merchant discount fees.2 (Am. Compl.
2, 4, 7, 9). Currently before the Court are two motions: (1) Discover’s motion to compel arbitration and stay the claims of merchants within the Class with whom Discover has direct contractual relationships (“Retained Merchants”) pending the arbitration proceedings pursuant to Rules 12(b)(1) and 12(b)(3) of the Federal Rules of Civil Procedure;3 and (2) Amex’s motion to (i) compel arbitration and (ii) decertify the class as to claims against Amex.4 For the reasons set forth below, the Court denies Discover’s motion to compel arbitration and grants in part and denies in part Amex’s motion. The Court grants Amex’s motion to the extent that Amex seeks to compel arbitration against CAA-bound merchants, but declines to decertify the class. I. Background The Court assumes familiarity with the facts and extensive procedural history as set forth in prior decisions. See B & R Supermarket, Inc. v. Visa, Inc. (B&R I), No. 16-CV-1150, 2016 WL 5725010 (N.D. Cal. Sept. 30, 2016); B & R Supermarket, Inc. v. MasterCard Int’l Inc. (B&R II), No. 17-CV-2738, 2018 WL 1335355 (E.D.N.Y. Mar. 11, 2018); B & R Supermarket, Inc. v. Mastercard Int’l Inc. (B&R III), No. 17-CV-2738, 2021 WL 234550 (E.D.N.Y. Aug. 20, 2020). The Court therefore provides only a summary of the relevant facts and procedural history. a. Factual background i. Plaintiffs’ claims Plaintiffs allege that Defendants conspired to violate the antitrust laws by entering into an agreement to (1) adopt the same policy via nearly identical rules for shifting billions of dollars in liability from banks to merchants for fraudulent charges; and (2) make the Liability Shift effective on the same day and in the same manner for all four networks. (Am. Compl.
