Affinity Credit Union v. Apple Inc.

Background

Affinity Credit Union, GreenState Credit Union, and Consumers Credit Union brought a proposed class action against Apple Inc. alleging violations of antitrust laws related to Apple Pay and contactless-payment technology available on iOS devices. They seek to represent U.S. entities that issued payment cards enabled for Apple Pay and paid Apple a fee for transactions using those cards.

Apple served subpoenas on seven absent proposed class members: American Express, Bank of America, Capital One, Citigroup, Discover Financial Services, JP Morgan Chase, and Wells Fargo. The subpoenas sought fourteen broad categories of documents and data concerning the institutions’ decisions to use Apple Pay, efforts to develop contactless-payment methods, user transaction data, and other information. The plaintiffs objected, arguing that the subpoenas constituted improper discovery directed at absent proposed class members.

Legal standards

The court explained that subpoena discovery is subject to the same general scope as discovery from a party under Federal Rule of Civil Procedure 26. That rule permits discovery of nonprivileged information relevant to a claim or defense and proportional to the needs of the case. Rule 45 allows a subpoena recipient to object or seek to have an unreasonable subpoena quashed.

The court also explained that parties generally lack standing—the legal ability to assert a particular objection—to challenge subpoenas issued to third parties. The Federal Rules do not clearly define the scope of discovery from absent class members, so district courts have discretion to impose appropriate limits. Courts commonly allow such discovery when the information is relevant, cannot readily be obtained from the representative plaintiffs or other sources, is not unduly burdensome, and is sought in good faith.

Analysis

The court held that, before class certification, the plaintiffs did not represent the absent proposed class members, including the seven subpoenaed institutions. The plaintiffs nevertheless had a duty to protect proposed class members’ interests in appropriate circumstances. But this case did not involve subpoenas directed at unnamed individuals who were unable to protect themselves or faced obstacles to doing so.

Instead, the court found that each of the seven subpoenaed institutions was a sophisticated entity with the means and ability to object to the subpoenas independently. The plaintiffs therefore lacked standing to challenge the subpoenas on those institutions’ behalf before class certification.

Disposition

The court denied the plaintiffs’ request for a protective order. It stated that the order did not prevent the subpoenaed institutions from seeking protective orders on their own behalf.