In Re: Payment Card Interchange Fee and Merchant Discount Antitrust Litigation *The Clerk of Court is respectfully directed to amend the caption accordingly.

24-2678
In Re: Payment Card Interchange Fee and Merchant Discount Antitrust Litigation
*The Clerk of Court is respectfully directed to amend the caption
accordingly.
United States Court of Appeals
For the Second Circuit
August Term 2025
Argued: November 20, 2025
Decided: May 4, 2026
No. 24-2678
O LD JERICHO E NTERPRISE, INC., 32T, LLC, B UCKS , INC.,
C HANDLER O IL -1 CORPORATION, C OFFEE C UP F UEL
S TOP , INC., H&H E NTERPRISES , INC., H EINZ
E NTERPRISES , INC., K OEHNENS S TANDARD S ERVICE ,
INC., MINERAL S PRING A VENUE G ETTY , INC., MOX
LLC, OKY LLC, PIT R OW, INC., POINTE S ERVICE
C ENTER LLC, RED EAGLE , INC., V ICTORY E NERGY ,
LLC, V ILLAGE C ENTER A UTO CARE , INC., W.L.F.
A UTOMOTIVE , INC., WESCO , INC., Z ARCO USA, INC.,
O N B EHALF OF A LL OTHERS S IMILARLY S ITUATED,
Plaintiffs-Appellants,
v.
V ISA, INC., MASTERCARD, INC.,
Defendants-Appellees.*

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Appeal from the United States District Court
for the Eastern District of New York
Nos. 05-md-1720; 20-cv-02394
Margo K. Brodie, Chief Judge.
Before: JACOBS , L EVAL , and PARK, Circuit Judges.
In 2019, Visa and Mastercard agreed to pay $5.6 billion to settle
a federal antitrust class action with a class of merchants that accepted
payment cards during the class period. Appellants here (the “Old
Jericho Plaintiffs”) did not opt out of the Settlement Agreement. But
a year later they filed their own putative class action complaint
asserting state-law antitrust claims and seeking damages for the same
allegedly supra-competitive interchange fees based on the same
alleged antitrust violations. They contend that their gasoline
suppliers are the direct payors of the challenged fees and the
appropriate class members. The district court (Brodie, C.J.) concluded
that the Old Jericho Plaintiffs are members of the settlement class and
the Settlement Agreement bars the claims they now assert.
We AFFIRM. First, we reject the Old Jericho Plaintiffs’
contention that our prior decision in Fikes Wholesale, Inc. v. HSBC Bank
USA, N.A., 62 F.4th 704 (2d Cir. 2023), requires the district court to
determine class membership solely by identifying the “direct payor”
of the challenged fees. The district court did not clearly err in
determining that the settling parties intended to include the Old
Jericho Plaintiffs in the settlement class. Second, we conclude that the
Old Jericho Plaintiffs’ claims were validly released because they were
adequately represented in the Settlement Agreement and rest on the
same factual predicate as the other released claims.

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C HRISTOPHER B ATEMAN (Daniel Gifford on the brief),
Cohen Milstein Sellers & Toll PLLC, New York, NY;
Manuel J. Dominguez, Cohen Milstein Sellers & Toll
PLLC, Palm Beach Gardens, FL, for Plaintiffs-Appellants.
K ANNON K. SHANMUGAM (Kenneth A. Gallo on the brief),
Paul, Weiss, Rifkind, Wharton & Garrison LLP,
Washington, DC; Brette Tannenbaum, Nina Kovalenko,
Gary R. Carney, Paul, Weiss, Rifkind, Wharton &
Garrison LLP, New York, NY, for Defendant-Appellee
Mastercard Incorporated.
Michael S. Shuster, Demian A. Ordway, Jayme Jonat,
Gregory J. Dubinsky, Holwell Shuster & Goldberg LLP,
New York, NY; Matthew A. Eisenstein, Rosemary
Szanyi, R. Stanton Jones, Arnold & Porter Kaye Scholer
LLP, Washington, DC, for Defendant-Appellee Visa Inc.
PARK, Circuit Judge:
In 2019, Visa and Mastercard agreed to pay $5.6 billion to settle
a federal antitrust class action with a class of merchants that accepted
payment cards during the class period. Appellants here (the “Old
Jericho Plaintiffs”) did not opt out of the Settlement Agreement. But
a year later they filed their own putative class action complaint
asserting state-law antitrust claims and seeking damages for the same
allegedly supra-competitive interchange fees based on the same
alleged antitrust violations. They contend that their gasoline
suppliers are the direct payors of the challenged fees and the
appropriate class members. The district court concluded that the Old

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Jericho Plaintiffs are members of the settlement class and the
Settlement Agreement bars the claims they now assert.
We affirm. First, we reject the Old Jericho Plaintiffs’ contention
that our prior decision in Fikes Wholesale, Inc. v. HSBC Bank USA, N.A.,
62 F.4th 704 (2d Cir. 2023), requires the district court to determine
class membership solely by identifying the “direct payor” of the
challenged fees. The district court did not clearly err in determining
that the settling parties intended to include the Old Jericho Plaintiffs
in the settlement class. Second, we conclude that the Old Jericho
Plaintiffs’ claims were validly released because they were adequately
represented in the Settlement Agreement and rest on the same factual
predicate as the other released claims.
I. BACKGROUND
After nearly 15 years of litigation, Defendants agreed to settle a
federal antitrust class action by paying over $5.6 billion for allegedly
supra-competitive interchange fees. In exchange, class members
agreed to release all claims arising out of or relating to the alleged
conduct to the fullest extent permitted by federal law. The Settlement
Agreement defines the class as “all persons, businesses, and other
entities that have accepted any Visa-Branded Cards and/or
Mastercard-Branded Cards in the United States at any time from
January 1, 2004 to the Settlement Preliminary Approval Date [January
24, 2019],” with certain exceptions not relevant here. App’x at 207.
The district court approved this settlement in 2019 and we affirmed
in 2023. We assume familiarity with the facts and procedural history,
which are set forth in our opinions in Fikes Wholesale, Inc. v. HSBC Bank
USA, N.A., 62 F.4th 704, 713-14 (2d Cir. 2023), and In re Payment Card

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Interchange Fee & Merchant Discount Antitrust Litigation, 827 F.3d 223,
227-30 (2d Cir. 2016). We summarize here only the facts necessary to
explain our decision in this appeal.
In a typical credit card transaction, when a customer gives a
payment card to a merchant, the merchant transmits data to its bank
(the acquiring bank), which forwards that information to the
appropriate network (Visa or Mastercard), which relays the
information to the bank that issued the customer’s card (the issuing
bank). Fikes, 62 F.4th at 713. The issuing bank then provides funds
through the appropriate network to the acquiring bank, minus the
interchange fee that Defendants charge. The acquiring bank in turn
pays the merchant the purchase price minus a “merchant discount
fee” that covers the interchange fee and an additional amount to
compensate the acquiring bank. Id.
The class action complaint principally asserted antitrust claims
under federal law on behalf of merchants who claimed to be injured
by Defendants’ interchange fees. In Illinois Brick Co. v. Illinois, 431 U.S.
720 (1977), the Supreme Court “established a bright-line rule that
authorizes suits by direct purchasers but bars suits by indirect
purchasers.” Apple Inc. v. Pepper, 587 U.S. 273, 279 (2019). Before
settling, Defendants argued that the class plaintiffs did not directly
purchase card acceptance services or directly pay the challenged
interchange fees because there are intermediaries in the payment
chain between the merchant and Defendants. So Defendants argued
that the acquiring banks are the direct purchasers and that class
plaintiffs are indirect purchasers without federal antitrust standing.
In approving the settlement, the district court recognized that the

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indirect-purchaser defense posed a litigation risk and awarded class
counsel substantial attorneys’ fees in part in consideration of this risk.
In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., No.
05-md-1720, 2019 WL 6888488, at *13-14 (E.D.N.Y. Dec. 16, 2019).
Illinois Brick bars indirect purchasers from asserting federal
antitrust claims, but state antitrust laws may permit indirect-
purchaser recovery. California v. ARC Am. Corp., 490 U.S. 93, 105-06
(1989). The Old Jericho Plaintiffs are branded gasoline retailers
operating in states that allow indirect purchasers to bring antitrust
claims. They contract with large gas brands such as BP, Cenex,
Chevron, and Shell (“Suppliers”) for both gasoline and card
acceptance services. When a customer uses a credit card to purchase
gas, the Supplier acts as an intermediary between the Old Jericho
Plaintiffs and the acquiring bank. On the front end, the Old Jericho
Plaintiffs transmit data to the Suppliers, which then relay that
information to the acquiring banks. And on the back end, the
acquiring banks transfer funds to the Suppliers, which then remit the
funds to the Old Jericho Plaintiffs after deducting fees that may
include credit card processing fees and the wholesale price of fuel.
The Old Jericho Plaintiffs did not opt out of the Settlement
Agreement. But in May 2020, after the opt-out period expired, they
filed their own putative class action complaint asserting state-law
indirect-purchaser antitrust claims seeking damages for the same
allegedly supra-competitive interchange fees based on the same
alleged antitrust violations by Defendants. Defendants raised an
affirmative defense that the Settlement Agreement bars the Old
Jericho Plaintiffs’ claims.

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The Old Jericho Plaintiffs moved for summary judgment on
whether they are bound by the release in the Settlement Agreement.
In a memorandum and order signed September 5, 2024, the district
court concluded that the Old Jericho Plaintiffs are members of the
settlement class and bound by the release. In re Payment Card
Interchange Fee & Merch. Disc. Antitrust Litig., No. 05-md-1720, 2024
WL 4224160 (E.D.N.Y. Sept. 18, 2024) (“Old Jericho Order”). So the
court entered judgment for Defendants on the Old Jericho Plaintiffs’
claims. This appeal followed.
II. DISCUSSION
We consider the Old Jericho Plaintiffs’ arguments in two parts.
First, the Old Jericho Plaintiffs contend that they are not part of the
settlement class. They argue that under Fikes, the district court was
required to identify the “direct payor” of the challenged fee for each
transaction, which was the Supplier. Second, the Old Jericho
Plaintiffs claim that even if they are part of the settlement class, the
district court erred in concluding that the Settlement Agreement
released the state-law claims they now seek to assert.
We reject both arguments. First, the district court’s finding that
the settling parties intended to include the Old Jericho Plaintiffs,
rather than their Suppliers, in the settlement class is not clearly
erroneous under Fikes. Second, the Old Jericho Plaintiffs’ claims were
validly released because they arise out of the same factual predicate
as the other class members’ claims and were adequately represented
in the Settlement Agreement.

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A. Class Membership
“In reviewing a district court’s interpretation of the terms of a
settlement agreement, we review conclusions of law de novo and
findings of fact for clear error.” In re Am. Exp. Fin. Advisors Sec. Litig.,
672 F.3d 113, 135 (2d Cir. 2011). When a term in a settlement
agreement is ambiguous, “principles governing the interpretation of
contracts and judgments authorize reference to extrinsic evidence” to
resolve the ambiguity and ascertain the settling parties’ intent. W.
Alton Jones Found. v. Chevron U.S.A., Inc., 97 F.3d 29, 37 (2d Cir. 1996).
“A trial court’s findings regarding the parties’ intentions will be
respected on appeal unless they are clearly erroneous.” Id. at 33.
The Old Jericho Plaintiffs urge a different standard. They argue
that the district court was not free to conduct its own inquiry into the
settling parties’ intentions and that our opinion in Fikes required the
district court “to use ‘federal antitrust standards’ to ‘identify the
direct payor or payors in any given transaction’ and deem that party
the Settlement class member.” Reply Br. at 4 (quoting Fikes, 62 F.4th
at 718). So they ask us to review de novo whether the district court
complied with our mandate in Fikes. Id. at 4-5 n.1; see Brown v. City of
New York, 862 F.3d 182, 184 (2d Cir. 2017) (“We determine de novo the
meaning of a previous mandate of this Court.”).
1. Fikes does not require the district court to use a “direct payor”
test to determine class membership
The Old Jericho Plaintiffs contend that our opinion in Fikes
required the district court to “identify the direct payor or payors in
any given transaction.” Appellants’ Br. at 29 (quoting Fikes, 62 F.4th
at 718). In support, they point to language in Fikes stating that “the

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only entities that could fall within the class definition were those
deemed to be direct payors of the challenged fees.” Id. (quoting Fikes,
62 F.4th at 716).
This argument overreads our prior decision. We recognized in
Fikes that “the word ‘accepted’ lends itself to ambiguity,” and
concluded that the class was ascertainable because this ambiguity
could be resolved by “identifying the direct payor for each
transaction.” 62 F.4th at 716-17. But opinions are “read with a careful
eye to context,” and this language must be understood with reference
to the “particular context” in which it appears and the “particular
work” it does. Nat’l Pork Producers Council v. Ross, 598 U.S. 356, 374
(2023).
Fikes addressed an ascertainability challenge to the class action
settlement the Old Jericho Plaintiffs contest here. In deciding that
issue, “[t]he only relevant inquiry is whether determinations as to
class membership are ‘objectively possible.’” Fikes, 62 F.4th at 717
(quoting In re Petrobras Sec., 862 F.3d 250, 270 (2d Cir. 2017)). In this
context, we explained that the class definition is “objectively guided
by federal antitrust standards,” so considering class counsel’s claim
that they represent “the direct purchaser, and not every entity in the
payment chain,” we concluded that the ascertainability challenge
failed because “Appellants do not contend that identifying the direct
payor for each transaction is impossible.” Id. at 716-17.
Our conclusion in Fikes about ascertainability does not supplant
the general rule that the district court should resolve disputes over
class membership by construing the Settlement Agreement “in accord

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with the parties’ intent” as required by New York contract law.1
Revitalizing Auto Cmtys. Env’t Response Tr. v. Nat’l Grid USA, 92 F.4th
415, 441 (2d Cir. 2024) (quotation marks omitted). Fikes stated that the
class definition is “objectively guided by federal antitrust standards,”
not that federal antitrust law replaces the parties’ intent. 62 F.4th at
716. Moreover, recognizing that the inquiry into class membership
might turn on facts not in the appellate record, we made “no ruling
as to how damages should be allocated as between branded oil
companies and their branded service station franchisees,” leaving the
district court to consider the issue on a “developed factual record.”
Id. at 727.
We thus reject the argument that Fikes reduced all disputes over
class membership to a “direct payor” test. This argument conflates
the different legal standards governing an ascertainability challenge
and a district court’s interpretation of a settlement agreement, and it
ignores our instruction that the district court decide class membership
based on a “developed factual record.” Id.; see, e.g., Collins v. Harrison-
Bode, 303 F.3d 429, 434 (2d Cir. 2002) (concluding that a settlement
agreement is ambiguous and remanding for “the district court to
provide the parties an opportunity to present extrinsic evidence”).2
1 The Settlement Agreement provides that it “shall be governed,
construed, enforced, and administered in accordance with the laws of the
State of New York.” App’x at 249.
2 Nor did the district court abuse its discretion by declining to invoke
judicial estoppel to bar Defendants from renouncing “the Direct Payor
Test.” Judicial estoppel typically requires that the party against whom it is
being asserted “has succeeded in persuading a court to accept that party’s

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2. The district court did not clearly err in finding that the parties
intended the Old Jericho Plaintiffs, not their Suppliers, to be
members of the settlement class
The district court concluded that “the term ‘accepted’ is
ambiguous . . . because suppliers and gas stations can both credibly
claim to have ‘accepted’ payment cards.” Old Jericho Order at *10.
After recognizing that the class definition is objectively guided by
federal antitrust standards, it turned to extrinsic evidence to decide
whether the Old Jericho Plaintiffs or their Suppliers “accepted”
payment cards within the meaning of the Settlement Agreement. See
Revitalizing Auto Cmtys., 92 F.4th at 442 (“If a contract is ambiguous,
extrinsic evidence of the parties’ intent may be considered.”). The
district court first considered contracts between the Old Jericho
Plaintiffs and their Suppliers, many of which say that the Supplier
authorizes the gas station to “accept” cards. And it reasoned that “the
way real-world transactions are conducted supports the conclusion
that Old Jericho Plaintiffs . . . ‘accept’ payment cards” because in a
prototypical transaction “the cardholder swipes her card at a gas
station, or hands it to the gas station operator, and the gas station
‘accepts’ the card for payment at the point of sale.” Old Jericho Order
at *12. Further, many of the Old Jericho Plaintiffs contract directly
with acquirers for ancillary businesses, such as convenience stores
and restaurants, so they accept payment cards for many transactions
earlier position” because “absent success in a prior proceeding, a party’s
later inconsistent position introduces no risk of inconsistent court
determinations, and thus poses little threat to judicial integrity.” New
Hampshire v. Maine, 532 U.S. 742, 750-51 (2001) (cleaned up). As explained,
this Court did not accept a “direct payor test.”

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where the Suppliers are not intermediaries. Considering this
evidence, the court found that the Old Jericho Plaintiffs, not their
Suppliers, “accepted” cards within the meaning of the Settlement
Agreement.
Although the Old Jericho Plaintiffs argue that the district court
should have considered contrary evidence about the parties’ intent,
we discern no clear error in the district court’s determination that the
settling parties intended the Old Jericho Plaintiffs to be class
members. See W. Alton Jones Found., 97 F.3d at 33.
B. Release of Claims
“Plaintiffs’ authority to release claims is limited by the
‘identical factual predicate’ and ‘adequacy of representation’
doctrines.” Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 106
(2d Cir. 2005). “Together, these legal constructs allow plaintiffs to
release claims that share the same integral facts as settled claims,
provided that the released claims are adequately represented prior to
settlement.” Id. If these two requirements are satisfied, a class action
settlement may “bar claims that were not and could not have been
asserted in the class action.” TBK Partners, Ltd. v. W. Union Corp., 675
F.2d 456, 460 (2d Cir. 1982). We agree with the district court that the
Settlement Agreement satisfies both requirements.
The Old Jericho Plaintiffs allege that they suffered the same
antitrust injury and are harmed by the same interchange fees as the
rest of the settlement class. The different factual predicate they
identify is “the presence or absence of an intermediary [i.e., the
Supplier] between the violator and the purchaser.” Appellants’ Br. at
65. But this argument ignores the fact that every merchant in the
settlement class has an intermediary between it and Defendants. The

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class plaintiffs allege that when a customer makes a payment, “the
Merchant sends an electronic transmission to its Acquiring Bank or
Third-Party Processor,” which “then sends an electronic transmission
to [Defendants’] Networks.” Old Jericho Order at *14; see supra at 5.
The Old Jericho Plaintiffs fail to explain why the presence of a second
intermediary should be determinative. The class plaintiffs argue that
they are direct purchasers with federal antitrust standing despite the
presence of intermediaries, while the Old Jericho Plaintiffs assert that
they are indirect purchasers and have only indirect-purchaser claims
due to the presence of intermediaries.3 We conclude, as the district
court did, that the Old Jericho Plaintiffs are asserting claims based on
a different legal theory but the same factual predicate as those in the
Settlement Agreement.4
Nor are we persuaded by the Old Jericho Plaintiffs’ argument
that their claims were inadequately represented in the Settlement
3 The parties settled partly to avoid deciding whether merchants or
the acquiring banks are direct purchasers under federal antitrust law. This
remains an open question: in opt-out litigation, the district court held that
there is a “dispute of material fact as to whether merchants are direct
purchasers of card-acceptance services” despite the presence of
intermediaries. In re Payment Card Interchange Fee & Merch. Disc. Antitrust
Litig., No. 05-md-1720, 2024 WL 1014159, at *13 (E.D.N.Y. Mar. 8, 2024).
This appeal is about membership in a class action settlement, not the
underlying issues of federal antitrust law, and we express no opinion on
this issue.
4 The submissions of other gas retailers wishing to remain in the
settlement class highlight that this is a legal, rather than factual, distinction.
For example, Jack Rabbit LLC is a gas retailer similarly situated to the Old
Jericho Plaintiffs but draws the opposite legal conclusion and seeks to
remain in the settlement class.

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Agreement. “[A]dequate representation of a particular claim is
determined by the alignment of interests of class members, not proof
of vigorous pursuit of that claim.” Wal-Mart, 396 F.3d at 113. As we
explained in Fikes, representation was adequate because both gas
franchisees and franchisors “shared an interest in maximizing the
recovery for all class members.” 62 F.4th at 718. And under the
Settlement Agreement, the Old Jericho Plaintiffs were compensated
for the release of their claims by entitlement to “a pro rata share of the
monetary fund ‘in accordance with [their] relative economic
interests,’” just like every other class member. Id. at 714.5
If the Old Jericho Plaintiffs wanted “to avoid the risk of being
bound by the Settlement Agreement and the Release, the appropriate
course of action was to timely opt out of the Class.” Old Jericho Order
at *15. They failed to do so, and we agree with the district court that
the Settlement Agreement bars the claims they now try to assert.
III. CONCLUSION
The judgment of the district court is affirmed.6
5 A trust account has been established to ensure that the Old Jericho
Plaintiffs receive their pro rata portion of the Settlement Amount at the
conclusion of this appeal.
6 Although this panel previously retained jurisdiction in this case,
Fikes, 62 F.4th at 727 n.18, any subsequent appeal will be assigned to a new
panel in the ordinary course.

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