Plaintiffs' Memorandum of Law in Opposition to the Retail Associations' Motion to Intervene

INTRODUCTION

The Retail Associations’ motion to intervene under Federal Rule of Civil Procedure 24(b) should be denied because they do not meet the substantive or procedural requirements for participating as a party in this case. The Retail Associations’ motion should also be denied because additional discretionary factors weigh decidedly against them.

First, there is no justification for the Retail Associations to participate as a defendant where the Attorney General is already defending the Interchange Fee Prohibition Act (“IFPA”). Indeed, courts routinely “recognize . . . that permissive intervention is unwarranted . . . when the proposed intervenor’s interests are adequately represented by the government.” , 2018 WL 11275902, at *1 (N.D. Ill. Nov. 8, 2018). The Retail Associations do not identify—and do not even try to identify—any lack of vigor in the Attorney General’s representation.

Second, the Retail Associations do not meet the substantive and procedural requirements demanded by Federal Rules of Civil Procedure 24(b) and (c) for permissive intervention. In particular, they identify no “claim or defense” as Rule 24(b) demands. Nor is their motion “accompanied by a pleading that sets out the claim or defense for which intervention is sought” as Rule 24(c) requires. These shortfalls should doom their request to intervene.

Third, even if the Retail Associations had met the criteria for permissive intervention, the decision whether to grant leave would remain in the Court’s discretion, and many factors counsel against exercising such discretion here. Allowing the Retail Associations to participate as a party threatens to inject delays, prejudice Plaintiffs, and add unnecessary burdens for this Court because “adding parties is not costless.” Bost v. Ill. State Bd. of Elections, 75 F.4th 682, 691 (7th Cir. 2023) (“Bost II”). The Retail Associations also do not propose to add anything to the merits of the case because their legal arguments mirror those of the Attorney General. And understandably so: At the heart of Plaintiffs’ case is a pure question of law about whether the IFPA’s interchange and data usage restrictions impermissibly interfere with federal banking powers—a question the Attorney General is fully competent to litigate. By contrast, the Retail Associations would only add distraction and complexity by using party status as a staging ground for their policy interests.

Finally, the Retail Associations have not even tried to meet any factor for intervening as of right under Rule 24(a)—and courts properly “consider ‘the elements of intervention as of right as discretionary factors’ in weighing permissive intervention.” Bost v. Ill. State Bd. of Elections, 2022 WL 6750940, at *3 (N.D. Ill. Oct. 11, 2022) (“Bost I”) (quoting Planned Parenthood of Wis., Inc. v. Kaul, 942 F.3d 793, 804 (7th Cir. 2019)), aff’d, Bost II, 75 F.4th 682 (7th Cir. 2023).

Thus, the Retail Associations can express their views on the IFPA as amici curiae, just like many other interested entities (including the relevant federal agency) have already done.

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