Opinion
MASTER FILE NO. CV-96-5238
June 21, 2002
Constantine Partners, New York, New York, By: Robert L. Begleiter (RB-7052), Matthew L. Cantor (MC-8183), Lloyd Constantine (LC-8464), Stacey Anne Mahoney (SM-5425), Michelle Peters (MP-7804), Amy Roth (AR-4534), Gordon Schnell (GS-2567), Mitchell C. Shapiro (MS-1019), Jeffrey I. Schinder (JS-5729), Michael Spyropoulos (MS-9873), Lead Counsel for Plaintiffs.
Hagens Berman LLP, Seattle, Washington, By: George W. Sampson (GS-8973), Steve Berman, Jim Solimano, Co-Lead Counsel for Plaintiffs.
Clifford, Chance, Rogers Wells LLP, New York, New York, By: Kenneth A. Gallo (KG-5664), Keila D. Ravelo (KR-8164), Gary R. Carney (GC-4203), Guy C. Quinlan (GQ-2613), Wesley R. Powell (WP-7857), Attorneys for Defendant MasterCard International Incorporated.
Heller, Ehrman, White McAuliffe LLP, San Francisco, CA, By: M. Laurence Popofsky (LP-8822), Stephen V. Bomse (SB-6594), Brian P. Brosnahan (BB-8908), David M. Goldstein, (DG-1841), David C. Brownstein (DB-2124), Thomas P. Brown (TB-5380), Kerry C. Klein (KK-3757), Attorneys for Defendant Visa U.S.A. Inc.
Arnold Porter, New York, NY, By: Philip H. Curtis (PC-9922), Robert C. Mason (RM-1863).
CONSENT ORDER FOR PROVIDING NOTICE TO MEMBERS OF THE CERTIFIED CLASS
By order dated February 22, 2000, this Court certified a class, pursuant to Fed.R.Civ.P. 23, "of all persons and business entities who have accepted Visa and/or MasterCard credit cards and therefore have been required to accept Visa Check and/or MasterMoney debit cards under the challenged tying arrangements during the fullest period permitted by the applicable statute of limitations. The Class does not include the named Defendants, their directors, officers or members of their families." Class Order at 44 (footnote omitted). The applicable statute of limitations period in this case is from October 25, 1992 to the present (the "class period").
The Court, having considered the parties' submission with respect to the proper means for providing notice of the pendency of this action to members of the certified class, hereby makes the following findings and orders that notice be provided to class members, as set forth below.
FINDINGS
A. In order to provide notice of this action to the members of the certified class, the Court finds that a notice plan consisting of individual notice to absent class members whose contact information is ascertained in the manner specified below ( see ¶¶ 2-13, infra), together with supplemental publication notice in the manner specified below ( see ¶¶ 14-16, infra), constitutes the best means practicable of providing notice, and is consistent with the requirements of Rule 23 and due process.
B. Defendants MasterCard International Incorporated ("MasterCard") and Visa, U.S.A. Inc. ("Visa") are each membership corporations comprised of member financial institutions. Some of those members are "Acquirers," who are licensed by each MasterCard and Visa to sign up merchants to accept MasterCard and Visa payment cards and to handle the processing of payments made with those cards. Defendants maintain contact information for their respective Acquirers.
C. MasterCard and Visa each have hundreds of Acquirers. A relatively small number of Acquirers (along with companies they retain, known in the industry as "Processors") are responsible for processing the vast majority of MasterCard and Visa transactions on behalf of merchants. According to the February 2002 Nilson Report (at pp. 6-7, attached hereto as Exhibit A) acknowledged by the parties as a leading publication covering consumer payment systems relied upon by the payments industry, the accuracy of which is accepted by the parties for this purpose — in 2001: The 81 largest Acquirers and Processors handled more than 99% of all MasterCard and Visa transaction sales volume on behalf of approximately 3.6 million merchants (operating approximately 5.8 million merchant outlets) in the United States; 20 of those Acquirers and Processors handled more than 81% of all MasterCard and Visa transaction sales volume on behalf of approximately 3 million merchants (operating approximately 5 million merchant outlets) in the United States; and 9 of those Acquirers and Processors handled more than 55% of all MasterCard and Visa transaction sales volume on behalf of approximately 2 million merchants (operating approximately 3.8 million merchant outlets) in the United States.
D. Acquirers and Processors maintain contact information concerning the merchants that they have signed up to accept defendants' cards for payment, including merchant personnel who receive the periodic reconciliation statements for the merchant's Visa and MasterCard credit card and debit card transactions.
E. Visa and MasterCard also each maintains information concerning merchant outlets at which transactions using its respective Purchasing or Corporate Cards have been processed. Visa maintains this information on a database known as the Visa Merchant Profile Database ("VMPD"). MasterCard maintains such information on a database referred to as the "MasterCard virtual data warehouse." Data on both the VMPD and the MasterCard virtual data warehouse include (where available) merchant outlet addresses, merchant names, "doing business as" names, and taxpayer identification numbers.
F. For purposes of providing notice, the best way to identify individual merchant class members is, therefore, through merchant contact information that the Acquirers and Processors maintain, supplemented by any non-duplicative merchant information maintained in the VMPD and the MasterCard virtual data warehouse. That merchant contact information should identify the substantial majority of current class members that can be reached through individual notice.
G. Thus, plaintiffs should subpoena the 81 Acquirers and Processors identified in Exhibit A, to attempt to obtain and incorporate into the Class Member List (as defined below) the merchant contact information accessible from the Acquirers' and Processors' current and existing databases. In addition, defendants should send letters to those Acquirers and Processors asking for their cooperation in promptly producing the information sought by plaintiffs' subpoenas.
H. With respect to those merchants whose contact information is obtained through reasonable efforts from the 81 Acquirers and Processors, as described herein, providing individual notice by first class mail is the best notice practicable under the circumstances.
I. Because the certified class is composed of merchants who have accepted for payment MasterCard or Visa credit card and debit card transactions since October 25, 1992, some class members likely will not be identified through the merchant contact information that currently can be obtained from the 81 largest Acquirers or Processors, supplemented by the VMPD and the MasterCard virtual data warehouse. For example, class members who are no longer in business no longer accept MasterCard or Visa credit cards and debit cards and may no longer be included in the databases maintained by the Acquirers and Processors. In addition, it may not be reasonably practicable under the circumstances to obtain merchant contact information from some Acquirers and Processors in a timely manner.
J. Accordingly, supplemental notice by publication also should be provided to the members of the certified class.
K. Plaintiffs should retain and compensate a class notice administrator (the "Administrator") to compile and maintain merchant contact information that the Acquirers and Processors produce (the "Merchant Contact Lists"), as well as to compile merchant information from the VMPD and the MasterCard virtual data warehouse, mail notices to those merchant contacts, provide for supplemental notice by publication, maintain lists of any merchants who opt-out of the Rule 23(b)(3) class, and handle other aspects of the class notice process.
NOTICE PLAN
Based on the foregoing, the Court orders that the following plan for identifying and providing notice to members of the certified class complies with Rule 23 and the requirements of due process, and shall be implemented:
1. The Court hereby approves the appointment of The Garden City Group, Inc. to serve as the Administrator. The qualifications of The Garden City Group to serve as the Administrator are described in Exhibit B.
2. Prior to the date of this Order, MasterCard and Visa have provided plaintiffs with the names, mailing addresses, and, where available, telephone numbers, facsimile numbers and e-mail addresses, for their contacts at each of the 81 largest Acquirers and Processors identified on Exhibit A.
3. Within 7 calendar days of the date of this Order, plaintiffs will serve a subpoena duces tecum on each of those 81 Acquirers and Processors, in the form attached hereto as Exhibit C, requesting that they produce the contact person names, "doing business as" names, addresses and taxpayer identification numbers for each merchant for whom the Acquirer or Processor acquires or processes Visa or MasterCard transactions, or to whom the Acquirer or Processor sends periodic statements or other information concerning the merchant's Visa or MasterCard transactions (the "Merchant Contact Lists"). Plaintiffs will provide copies of such subpoenas, with proof of service, to defendants' counsel, promptly after service.
4. Also, within 5 calendar days of the date of this Order, defendants will send a letter to their contacts at each of the 81 Acquirers and Processors, in the form attached hereto as Exhibit D, asking for their cooperation in promptly producing the information sought by the plaintiffs' subpoenas. Defendants will provide copies of such letters to plaintiffs' lead counsel. Defendants will respond to any inquiries about the requests in plaintiffs' subpoenas from any of the Acquirers or Processors by encouraging them to comply with the request/subpoena.
5. Within 10 calendar days of the date of this Order, Visa and MasterCard will turn over to the Administrator data from the VMPD (at a previously agreed-upon cost to plaintiffs) and the MasterCard virtual data warehouse (at a previously agreed-upon cost to plaintiffs), including (where available) merchant outlet names and addresses, "doing business as" names, and taxpayer identification numbers, in ASCII format, unless some other format is subsequently agreed to by the parties. The Administrator shall use this data solely for the purpose of providing notice to members of the certified class, as set forth in this Order. The Court has ordered MasterCard and Visa specifically to produce taxpayer identification numbers because that information is necessary to assist in providing notice to individual members of the class. The Administrator shall keep such taxpayer identification numbers strictly confidential and shall use the information solely for the purpose of providing notice hereunder. The Administrator shall implement and maintain reasonable administrative, technical and physical safeguards to protect the security, confidentiality and integrity of such information.
6. Plaintiffs' subpoenas and defendants' letters to the 81 Acquirers and Processors also will request that, once compiled, the Merchant Contact Lists be sent directly to the Administrator, solely for the purpose of providing notice to members of the certified class, as set forth in this Order. The Merchant Contact Lists will not be sent or disclosed to anyone other than the Administrator and its employees, and shall not be sent or disclosed to plaintiffs or their counsel, or defendants or their counsel, or to any other party. The Administrator and anyone working for the Administrator who has access to the Merchant Contact Lists will sign an agreement to adhere to this confidentiality requirement, in the form attached hereto as Exhibit E, and will provide copies of the executed agreements to counsel for both plaintiffs and defendants.
7. Plaintiffs will take the following reasonable steps to attempt to obtain and incorporate into the Class Member List (as defined below (¶ 8, p. 7)) the Merchant Contact Lists from the 81 largest Acquirers and Processors listed in Exhibit A, as reasonably practicable under the circumstances:
(a) Take reasonable steps — including, if necessary, the prosecution of motions to compel to attempt to obtain and incorporate the Merchant Contact Lists from the 20 Acquirers and Processors specified in Exhibit F;
(b) Prosecute up to twenty motions to compel, to the extent necessary to attempt to obtain compliance with the subpoenas to the 81 Acquirers and Processors listed on Exhibit A (and including the 20 listed in Exhibit F); and
(c) Diligently attempt to obtain and incorporate into the Class Member List as many Merchant Contact Lists as is reasonably practicable under the circumstances, through correspondence and follow-up telephone calls with each of the 81 Acquirers and Processors listed on Exhibit A.
(d) Nothing in this paragraph shall be construed as limiting the requirements of Rule 23 or due process.
8. The Administrator shall compile a database of the Merchant Contact Lists received, and of the non-duplicative merchant information from the VMPD and the MasterCard virtual data warehouse, which shall contain the following information for each merchant (the "Class Member List"):
(a) Any contact person for the merchant, the merchant's name, its "doing business as" name, and its address;
(b) The merchant class member's taxpayer identification number; and
(c) The Acquirer or Processor who provided the information for (a) and (b).
9. The Administrator also shall undertake reasonable efforts to eliminate any duplication in class member entries in the Class Member List.
10. On August 21, 2002 (or 53 calendar days of the date of this Order, whichever date is later), plaintiffs and the Administrator shall serve on counsel for the parties, and file with the Court, a status report detailing the steps that were taken to obtain and incorporate the Merchant Contact Lists from the 81 Acquirers and Processors, and to compile the Class Member List. The information in the report should include:
The "date of this Order" as used herein means the date on which this Order is signed by the Court and faxed to all parties by the Court or another party.
(a) The number of merchants on the Class Member List;
(b) The names of Acquirers or Processors that produced Merchant Contact Lists;
(c) The number of merchants each Acquirer or Processor identified;
(d) A description of the steps taken to eliminate duplicate entries on the Class Member List and the number of duplicate entries eliminated;
(e) An explanation of how plaintiffs have complied with paragraph 7 above, including a detailed description of what efforts plaintiffs have made to comply with paragraph 7 above;
(f) A description of the efforts undertaken to obtain Merchant Contact Lists from any Acquirers or Processors who have not, as of that date, produced Merchant Contact Lists; and
(g) A timetable for the proposed mailings of class notice.
11. Following receipt of the report described in ¶ 10 above, any party that believes that the execution of the Notice Plan to date does not meet the requirements of Rule 23 or due process shall make a motion to stay the mailing of the Notice (as defined below) and the publication of the Summary Notice (as defined below) by order to show cause, within 7 calendar days of receipt of the Administrator's Report, returnable within 7 calendar days thereafter (except as otherwise directed by the Court) and with service by overnight or hand delivery (and courtesy copies by facsimile) to counsel for the parties and to the Administrator, seeking relief that the party believes necessary to satisfy the requirements of Rule 23 and due process.
12. Beginning on September 9, 2002 (i.e. 11 calendar days after the expiration of the time to file a motion to stay the mailing of the Notice and the publication of the Summary Notice), if no motion to stay has been timely served, the Administrator shall provide notice to the class as detailed in paragraphs 13-16, below.
13. The "Notice of Pendency of Class Action," attached as Exhibit G (the "Notice"), has been approved by the Court and shall be used to provide notice to merchants on the Class Member List. The Administrator shall send a copy of the Notice by first class mail to each class member on the Class Member List. Each such mailing will bear the following legend on the envelope: VISA CHECK/MASTERMONEY ANTITRUST LITIGATION: IMPORTANT LEGAL NOTICE TO ALL CLASS MEMBERS, FORWARD TO CORPORATE HEADQUARTERS/LEGAL COUNSEL.
14. The Summary Notice of Pendency of Class Action, attached as Exhibit H (the "Summary Notice") has been approved by the Court for use in publication notice. Plaintiffs shall cause the Summary Notice to be published, commencing within 3 days after the initial mailing of the Notice of Pendency of Class Action and concluding by October 14, 2002, in the publications listed on Exhibit I. In that same timeframe, plaintiffs shall also cause the Summary Notice to be published twice over the PR Newswire (to more than 2,400 media outlets, including newspapers, magazines, national wire services, television and radio broadcast media, web sites, and Internet portals) and in the plaintiff trade associations' publications. As described in the Declaration of Wayne L. Pines, attached as Exhibit J hereto, this supplemental publication notice plan, combined with the notice mailing plan described above, is designed to reach as many members of the class as is practicable under the circumstances, including those who are no longer in business.
15. By the date of the first mailing of the Notice, the Administrator shall have established a website for the case (www.InReVisaCheckMasterMoneyAntitrustLitigation.com), which shall contain an e-mail link to the Administrator and to plaintiffs' co-lead counsel, a copy of this Order, the Notice of Pendency of Class Action, the operative complaint, defendants' answers, the 2/24/00 District Court Order certifying the class, the 10/17/01 Circuit Court Order affirming the District Court Order, and any documents that the parties stipulate to post or that the Court orders be posted on the website.
16. As provided in the Notice, class members shall have until November 14, 2002 (or 30 calendar days after the last publication notice date and approximately 60 days after the first notice mailing date, whichever is later), to opt-out of the Rule 23(b)(3) class.
17. With respect to receiving and processing requests for exclusion and handling other aspects of notice administration, the Administrator shall:
(a) Collect mail daily from a United States Post Office Box specifically designated for requests for exclusion and other case-related correspondence.
(b) Sort mail into requests for exclusion, forms returned undeliverable, and other general correspondence.
(c) If a Notice is returned undeliverable, the Administrator shall send it to the forwarding address if one is provided.
(d) With respect to returned Notices for which no forwarding address has been provided, the Administrator shall undertake reasonable efforts to obtain updated contact information concerning the merchant. If such information is available, the Administrator shall enter it in the merchant database. The Administrator shall then re-send the Notice to the updated address.
(e) Respond to all general correspondence.
(f) Maintain the Class Member List described above and modify it as necessary based on correspondence from class members.
(g) Send correspondence to class members or opt-outs as necessary.
(h) Create such reports as become necessary.
(i) The Administrator and its employees and agents shall maintain the confidentiality of all Merchant Contact Lists and databases incorporating any portion of those lists, including the Class Member List, at all times, in accordance with the terms of the executed confidentiality agreements.
18. On November 17, 2002 (i.e. 3 calendar days after the close of the opt-out period), plaintiffs and the Administrator shall serve on counsel for the parties, and file with the Court, a second report that describes the activities undertaken to provide notice to the class, including the dates on which mailings of notice took place, and the dates on which notice was published. The report also shall identify each class member that has elected to opt-out of the Rule 23(b)(3) class, and certify that notice has been provided in accordance with this Order. The Administrator shall supplement this second report promptly as necessary, including to reflect additional class members who opted out of the Rule 23(b)(3) class by the expiration of the opt-out period, but whose names were not reflected in the Administrator's November 17, 2002 report.
19. Following receipt of the report described in ¶ 18 above, any party that believes that the execution of the Notice Plan to date does not meet the requirements of Rule 23 or due process shall make a motion by order to show cause no later than November 27, 2002, returnable within 7 calendar days thereafter (except as otherwise directed by the Court), with service by overnight or hand delivery (and courtesy copies by facsimile) to counsel for all parties and to the Administrator, seeking relief that the party believes necessary to provide additional notice and/or satisfy the requirements of Rule 23 and due process.
20. Nothing herein shall be deemed to preclude the Court from modifying this Order, or any party from seeking a modification of it, for good cause at a later date.In re Visa Check/Master Money Antitrust Litigation, CV-96-5238, pending in the United States District Court for the Eastern District of New York
Notice Plan Schedule
This information is provided for illustrative purposes only.
EXHIBIT A
EXHIBIT B
EXHIBIT C Schedule A In re Visa Check/Master Money Antitrust Litigation, CV-96-5238, pending in the United States District Court for the Eastern District of New York Information Requested — Merchant Contact List1. Pursuant to the Instructions below, produce for each merchant for whom you have acquired or processed Visa or MasterCard transactions from October 25, 1992 to the present:
(a) Name of merchant;
(b) "Doing business as" name of merchant;
(c) Name and address of each contact person and location to which you send periodic merchant statements or other information concerning the merchant's Visa or MasterCard transactions; and
(d) Merchant's taxpayer identification number.
2. Written responses to the questions in Attachment A hereto.
Instructions
A. The information requested, or Merchant Contact List, should be compiled from any databases that you use in the ordinary course of your business that contain the merchant information requested above. The Merchant Contact List should include all merchants whose information is available on those databases, whether or not you currently acquire or process transactions on their behalf. You are not required to retrieve data from backup tapes or other archival systems.
B. You should compile the Merchant Contact List in electronic form onto one or more CD-ROMs or other commonly used information storage platforms. If possible, the data export should be in a delimited ASCII file format containing the following Fields (maximum length of field) for each merchant: Merchant Name (40); Merchant Name2/Optional (40); Contact at Merchant/Optional (40); Address (40); Address2/Optional (40); City (30); State (2); Zip (7); ZipZone/Optional (4); Tax id (9).
C. You should send the Merchant Contact List to The Garden City Group, Inc., re: In re Visa Check/MasterMoney Antitrust Litigation, 105 Maxess Road, Melville, New York, 11747, Attn: Andrew Sommer (the "Administrator"), upon your compilation of the list, but no later than July 12,2002. If you need additional time to compile the list, or have any other questions about this list, please contact Andrew Sommer, of The Garden City Group, at (631) 470-5123 or plaintiffs' lead counsel, as listed on the first page of the subpoena to you.
D. You will be reimbursed for reasonable expenses you incur in compiling the Merchant Contact List, including costs of computer programmers and other administrative time, costs of CD-ROMs or other storage devices, and other reasonable costs. To obtain reimbursement you will need to provide a sworn, written accounting of your expenses to the Administrator no later than 30 calendar days after you forward the Merchant Contact List to the Administrator.
E. Your Merchant Contact List will be maintained under strict confidentiality. The Merchant Contact List will be maintained at all times only by the Administrator. All employees of the Administrator who have access to the Merchant Contact Lists will be bound by the terms of a confidentiality agreement. Pursuant to the Court's Order and those agreements, no one other than employees of the Administrator shall be permitted access to the Merchant Contact List that you produce, and the Merchant Contact List will be used by the Administrator solely for the purpose of providing class notice to members of the certified class in the above-referenced action.
ATTACHMENT A Respondent Information
Name and address of acquirer or processor providing Merchant Contact List: _____________________________
Name, telephone number, and e-mail address of contact person at acquirer or processor: _____________________________
Software/data format in which Merchant Contact List is being produced, and any other information required for accessing Merchant Contact List, including type and total number of storage media submitted (e.g., number of CD-ROMs, platform type for computer used to write to storage media (PC, Mac, etc.), ASCII delimiters employed, name and order of fields in the export file and total number of records exported): ______________________________
Number of merchant records or entries on the Merchant Contact List that you are producing: ______________________________
I declare under penalty of perjury that the foregoing is true and correct.
Date: _________________________________
Location: _____________________________ _________________________________ City, State Signature
_________________________________ Print Name
EXHIBIT D
[Date][Acquirer Contact and Address:]
Re: In re Visa Check/MasterMoney Antitrust Action, No. CV-96-5238
Dear [ ]:
I write on behalf of [defendant] to request your assistance in connection with the above-captioned lawsuit filed in the U.S. District Court in Brooklyn, New York. This letter is being sent to you pursuant to an Order of the Court, a copy of which is enclosed. Accordingly, your prompt attention to this matter is requested within 14 days of the date of this letter.
The Merchant Litigation
A group of merchants, including Wal-Mart Stores, Inc., The Limited Inc., Sears Roebuck Co., Safeway Inc., Circuit City Stores Inc. and twelve small merchants have sued Visa and MasterCard, alleging that they violated the antitrust laws by forcing merchants who accept Visa and/or MasterCard-branded credit cards also to accept Visa and/or MasterCard-branded debit card transactions, and by conspiring and attempting to monopolize a market for general purpose point of sale debit card transactions. Three merchant trade associations, National Retail Federation, International Mass. Retail Association and Food Marketing Institute are also plaintiffs.
MasterCard and Visa have denied the merchants' allegations and have raised a number of defenses. The Court has not ruled on the merits of plaintiffs' allegations or MasterCard's and Visa's denials of liability and defenses.
The litigation has been certified as a class action. The class consists of "all persons and business entities who have accepted Visa and/or MasterCard credit cards and therefore have been required to accept Visa Check and/or MasterMoney debit cards" from October 25, 1992 to the present. The class excludes the named Defendants, their directors, officers or members of their families.
Notice to Class Members
Before the case proceeds further, the merchants representing the class must send notice of the pendency of this action to potential members of the certified class defined above. The Court has determined that your assistance is needed for plaintiffs to send the class notice directly to merchants.
Information Requested from Acquirers and Processors
In order to send notice directly to members of the certified class, the plaintiffs need to obtain contact information for the individual class members where available. The Court has determined that the best source for such merchant contact information is the information maintained by the largest acquirers (and processors) of MasterCard and Visa credit and debit transactions in the United States.
Accordingly, the Court has ordered us to write to you to request that you produce the merchant contact list described on the attached Schedule A in an expedited manner. As provided in Schedule A, that list should be produced directly to the class notice administrator (the "Administrator") appointed by the Court, The Garden City Group, at The Garden City Group, Inc., re: In re Visa Check/MasterMoney Antitrust Litigation, 105 Maxess Road, Melville, New York, 11747, Attn: Andrew Sommer. You also will receive a subpoena from plaintiffs requesting that this same information be produced. This information will be used by the Administrator solely for the purpose of providing notice to members of the certified class. We ask that you cooperate by producing the data as quickly as practicable. The subpoena requires you to provide your list or objections within 14 days. However, plaintiffs have informed us that they are willing to wait up to 30 days from the date of this letter to receive your merchant contact lists.
Confidentiality
Pursuant to the Court's Order, the Merchant Contact Lists that you produce will be maintained in strict confidentiality. The Merchant Contact List will be maintained at all times by the Administrator. All employees of the Administrator who have access to the Merchant Contact Lists will sign a Confidentiality Agreement (Exhibit E, a copy of which is enclosed). Pursuant to the Court's Order and those Agreements, no one other than employees of the Administrator are to be permitted access to the Merchant Contact List that you produce.
Reimbursement of Expenses
The Court also has ordered that the merchants representing the class must reimburse you for the reasonable costs you incur in connection with preparing this list. You should maintain records that reflect the expenses you incur, and then seek reimbursement as explained in Schedule A. If there is a quicker or more cost-effective manner of manipulating and/or producing the data requested, please contact the Administrator, at The Garden City Group, Inc., re: In re Visa Check/MasterMoney Antitrust Litigation, 105 Maxess Road, Melville, New York, 11747, Affn: Andrew Sommer, phone (631) 470-5123.
Instructions for Preparing Merchant Contact Information
Please follow the steps described in the attached Schedule A to prepare and submit your Merchant Contact List. If you have any questions, you may contact Andrew Sommer of The Garden City Group at (631) 470-5123. Thank you in advance for your cooperation.
{Signature}
Enclosures: Court Order Schedule A and Attachment Confidentiality Agreement
EXHIBIT E CONFIDENTIALITY AGREEMENT
I, _______________________, have read the Consent Order for Providing N otice to Members of the Certified Class, dated June __, 2002 ("Order") in the matter styled In re Visa check/MasterMoney Antitrust Litigation, CV-96-5238, pending in the United States District Court for the Eastern District of New York, and agree to be bound by its terms, specifically including its requirement that any Merchant Contact List produced by Acquirers and Processors not be disclosed to any party, their counsel, or anyone not employed by The Garden City Group, Inc. in connection with this action. I further agree that the information provided by Defendants and third parties to The Garden City Group Inc. in connection with this matter shall be used solely for the purposes of providing notice to members of the certified class.
I hereby consent to the jurisdiction of the United States District Court for the Eastern District of New York for the purposes of any proceeding to enforce the terms of this Confidentiality Agreement.
I hereby declare under penalty of perjury that the foregoing is true and correct.
Date: ________________________________
Location:_____________________________ __________________________________ City, State Signature
__________________________________ Print Name
EXHIBIT F
NPCPaymentech
Including joint venture partner Key Corp.
Including joint venture partners Chase Merchant Services, PNC, Card Service International, and Huntington National Bank.
EFS National
Fifth Third Bank
Bank of America Merchant Services
Global Payments
Wells Fargo Merchant Services
First of Omaha
Alliance Data Systems
First Tennessee (First Horizon)
Heartland Payment Systems
Humboldt Bank
Merchant Services Inc.
TransFirst (formerly ACS Merchant Services)
National Bank of the Redwoods
Innovative Merchant Solutions
Certified Merchant Services
Carrollton Bank
EXHIBIT G IN RE: VISA CHECK/MASTERMONEY ANTITRUST Litigation: IMPORTANT LEGAL NOTICE TO ALL CLASS MEMBERS FORWARD TO CORPORATE HEADQUARTERS/LEGAL COUNSEL UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORKIN RE:
VISA CHECK/MASTERMONEY ANTITRUST LITIGATION MASTER FILE NO. CV-96-5238
This Document Relates To:
ALL ACTIONS (Gleeson J.) (Mann, M. J.)
NOTICE OF PENDENCY OF CLASS ACTION
TO: ALL PERSONS AND BUSINESS ENTITIES IN THE UNITED STATES WHO, AT ANY TIME SINCE OCTOBER 25, 1992, HAVE ACCEPTED VISA AND/OR MASTERCARD CREDIT CARDS FOR PAYMENT AND HAVE THEREFORE BEEN REQUIRED TO ACCEPT VISA AND/OR MASTERCARD-BRANDED DEBIT CARDS (ALSO KNOWN AS VISA CHECK, MASTERMONEY OR MASTERDEBIT CARDS) FOR PAYMENT ("THE CLASS").
THIS NOTICE MAY AFFECT YOUR RIGHTS PLEASE READ IT CAREFULLY
1. This Notice is directed to you because your rights may be affected by the class action pending in the United States District Court for the Eastern District of New York styled In re Visa Check/MasterMoney Antitrust Litigation, No. CV-96-5238 (the "Action").HISTORY OF TILE ACTION
2. The Action began in 1996 with the filing of lawsuits by certain retailers and retail trade associations (collectively, the "Plaintiffs") against Visa U.S.A. Inc. ("Visa") and MasterCard International Incorporated ("Master") (collectively, "the Defendants"). Those lawsuits have been consolidated, and the Court has appointed the New York, New York based law firm of Constantine Partners to serve as Lead Counsel, and the Seattle, Washington based law firm of Hagens Berman LLP to serve as Co-Lead Counsel for the Plaintiffs. The Plaintiffs in the Action, who represent the Class certified by the Court, are: Wal-Mart Stores, Inc.; The Limited, Inc.; Sears Roebuck Co.; Circuit City Stores, Inc., Safeway, Inc.; Auto-Lab of Farmington Hills; Bernie's Army Navy Store; Burlington Coat Factory Warehouse Corporation, The Coffee Stop, Inc., d/b/a Torrero Coffee Tea Company; Computer Supplies Unlimited; Denture Specialists, Inc.; Payless ShoeSource, Inc.; Shoes Etc., Inc., d/b/a Arnold's Shoes; Scrub Shop, Inc.; Sportstop, Inc.; UCC Kwik Doc, Inc., f/k/a UCC Express, Inc.; and Geneva White, D.M.D., P.A. The first (or lead) case was filed by a group of merchants represented by Constantine Partners that included Wal-Mart, The Limited, Sears, Circuit City and Safeway; the lead case and the consolidated Action have sometimes been referred to as the "Wal-Mart case" or the "Wal-Mart action." Three merchant trade associations, National Retail Federation, International Mass. Retail Association, and Food Marketing Institute, are also plaintiffs in the lead case (and the consolidated Action).
3. The allegations against Visa and MasterCard are set forth in the Second Amended Consolidated Class Action Complaint filed with the Court on May 26, 1999. Plaintiffs claim that Visa and MasterCard, individually, and in conspiracy with each other and with their member banks, have violated the federal antitrust laws by forcing merchants who accept Visa and/or MasterCard-branded credit cards for payment also to accept Visa and/or MasterCard-branded debit cards for payment, and by conspiring and attempting to monopolize a market for general purpose point of sale debit cards. Plaintiffs claim that Defendants' actions have caused merchants to pay excessive fees on Visa and MasterCard credit and debit transactions, have caused merchants to pay excessive fees on on-line PIN based debit transactions (which allegedly have been inflated as part of Defendants' alleged conduct), and have injured competition, merchants and consumers. Plaintiffs seek: (1) an injunction prohibiting the Defendants from engaging in the alleged violations of the federal antitrust laws (including the elimination of the alleged forced acceptance of the Visa and/or MasterCard-branded debit cards or payment by merchants who accept Visa and/or MasterCard-branded credit cards for payment), and (2) the recovery of damages for the alleged excess portion of fees paid on Visa and MasterCard credit and debit transactions, and on on-line PIN-based debit transactions, as well as costs and attorneys' fees.
4. Defendants have denied Plaintiffs' allegations, and have denied that Defendants in any way violated the antitrust laws. Defendants have asserted defenses to Plaintiffs' claims, including that Defendants' challenged actions were lawful, justified, the result of independent business competition, and that those actions have benefited competition, merchants and consumers. Defendants also have asserted that Plaintiffs have not suffered economic harm from the challenged conduct but, in fact, have benefited. Counsel for MasterCard are located in the New York office of Clifford Chance Rogers Wells LLP. Counsel for Visa are located in the San Francisco office of Heller Ehrman White McAuliffe LLP and the New York office of Arnold Porter.
5. Defendants and Plaintiffs each have filed motions asking the Court to enter summary judgment in their respective favors without a trial, and have opposed each others' motions. The motions are pending before the Court.
6. The Court has not ruled on the merits of Plaintiffs' claims or Defendants' denials of liability or defenses.
THE CLASS CERTIFICATION RULING
7. On February 22, 2000, the Court entered an order certifying the Action as a class action on behalf of "all persons and business entities who have accepted Visa and/or MasterCard credit cards and therefore have been required to accept Visa Check and/or MasterMoney debit cards" at any time from October 25, 1992 to the present. The Court further ordered that the Class does not include the named Defendants, their directors, officers or members of their families.
8. The certification of the Class does not mean that Plaintiffs have prevailed in this Action or that money necessarily will be obtained for Class members, because there are many contested issues that have not yet been decided. The ruling does mean that any judgment in the case — whether favorable to Plaintiffs or to Defendants — will bind all Class members who do not timely elect to be excluded from the Class as described below.
9. This Notice has been sent to you in the belief that you may be a member of the Class whose rights may be affected by this lawsuit. It should not be understood as an expression of any opinion by the Court concerning the merits of the Action. This Notice is intended merely to advise you of the pendency of the Action and of your rights with respect to it, including the right to exclude yourself from the Class.
ELECTION BY CLASS MEMBERS TO PARTICIPATE IN, OR TO BE EXCLUDED FROM, THE CLASS
10. You are a member of the Class if you are not one of the Defendants or their directors, officers or members of their families, and if you or your business has accepted Visa and/or MasterCard credit cards for payment at any time since October 25, 1992. If you are a Class member, you have a choice of whether to remain a member of the Class. Your choice will have consequences that you should understand before making your decision. In determining whether you want to remain in or be excluded from the Class, you may want to consult your own attorney.
11. If you want to remain a member of the Class, you are not required to do anything at this time. By remaining a Class member, you will be bound by any judgment in the Action, whether favorable or unfavorable to Plaintiffs. You also agree that any claims against Defendants arising out of the Defendants' conduct at issue in the Action will be determined in the Action and cannot be pursued in any other action. If there is a recovery, you may be entitled to share in the proceeds, less such Plaintiffs' costs, expenses, and attorneys' fees as the Court may allow out of any such recovery. If the Defendants prevail, you may not pursue a lawsuit on your own with regard to any of the Defendants' conduct at issue in the Action.
12. If you remain a member of the Class:
(A) The Class Representatives, Lead Counsel and Co-Lead Counsel will represent your interests in presenting the claims against Defendants. You will not be personally responsible for Plaintiffs' attorneys' fees or costs, except to the extent that the Court may award such fees and costs to the attorneys which would be paid out of the recovery in this Action, if any. If you desire, you also may appear by your own attorney at your own expense. You also may seek to intervene.
(B) You will have the right to participate in any recovery that may be obtained from the Defendants in any judgment. If no recovery is obtained, you will be bound by that result, and you will not be permitted to seek any other recovery from Defendants for their conduct at issue in the Action.
(C) You may be required as a condition of participating in any recovery to present evidence concerning your acceptance of MasterCard and Visa credit and debit transactions. You should, therefore, preserve all records concerning these transactions.
(D) You should give notice of any corrections or changes in your address, in writing, in an envelope addressed to the class notice administrator (the "Administrator") appointed by the Court, at The Garden City Group, Inc., P.O. Box 9000-6014, Merrick, New York, 11566-9000, Attn: In re Visa Check/MasterMoney Antitrust Litigation, that bears the notation "Address Change; In Re: Visa Check/MasterMoney Antitrust Litigation."
13. If you do not want to remain a member of the Class, you may choose to be excluded from the Class. By electing to be excluded from the Class:
(A) You will not share in any damages recovery that Defendants might pay as a result of a judgment favorable to Plaintiffs.
(B) You will not be bound by any judgment favorable to Defendants. However, a decision favorable to Defendants in this Action may still impact your ability to bring a subsequent damages claim against Defendants. For example, you may be bound by a decision favorable to Defendants in this Action to the extent that the class includes a class as to which no opportunity to opt-out is afforded.
(C) You will have the right, at your own expense, to pursue any individual claim that you may have against Defendants by filing your own lawsuit or by seeking to intervene in the Action.
14. If you want to be excluded from the Class, you must make a written request for exclusion bearing the title "Request for Exclusion from Class: In Re Visa Check/MasterMoney Antitrust Litigation," and send it by first class mail, postage pre-paid, to The Garden City Group, Inc., P.O. Box 9000-6014, Merrick, New York, 11566-9000, Attn: In re Visa Check/MasterMoney Antitrust Litigation. Your request should provide the name, address and telephone number of the person or business entity that wishes to be excluded from the class, contain your printed name and title (if on behalf of a business entity), and be signed by you. In order for your request to be effective, it must be postmarked on or before November 14, 2002.
ADDITIONAL INFORMATION
15. All references in this Notice to pleadings, allegations, claims, defenses and Court orders are summaries. Complete copies of the pleadings, orders and other publicly filed documents in the Action may be examined and copied at any time during regular office hours at the office of the Clerk of the Court, United States District Court for the Eastern District of New York, 225 Cadman Plaza East, Brooklyn, New York 11201, under the file No. CV-96-5238. You also may access additional information by visiting the website at www.InRevisacheck-mastermoneyantitrustlitigation.com.
16. Any questions you have concerning the matters raised in this Notice, or any corrections or changes of name or address, should not be directed to the Court but should be directed in writing to The Garden City Group, Inc., P.O. Box 9000-60 14, Merrick, New York, 11566-9000, Attn: In re Visa Check/MasterMoney Antitrust Litigation, or forwarded to the Administrator through the website at www.InRevisacheck-mastermoneyantitrustlitigation.com.
17. Lead Counsel for Plaintiffs is Constantine Partners, 477 Madison Avenue, New York, New York 10022, (212 350-2799) co-lead counsel for Plaintiffs is Hagens Berman LLP, 1301 Fifth Avenue, Seattle, Washington, 98101. Any requests for additional information about the case can be submitted to lead counsel or co-lead counsel in writing at either address listed above, in an envelope that bears the legend "Inquiry by Absent Class Member: In Re Visa Check/MasterMoney Antitrust Litigation" or through the e-mail listed on the web-site at www.InRevisacheck-mastermoneyantitrustlitigation.com. You may, of course, seek the advice and guidance of your own attorney if you desire.
EXCEPT AS SET FORTH IN THIS NOTICE, PLEASE DO NOT CONTACT THE COURT
Dated: June 21, 2002 ____________________________________ Hon. John H. Gleeson UNITED STATES DISTRICT JUDGE
EXHIBIT H Legal Notice IF YOU OR YOUR COMPANY HAVE ACCEPTED MASTERCARD AND/OR VISA CARDS FOR PAYMENT AT ANY TIME SINCE OCTOBER 1992, THIS NOTICE MAY AFFECT YOUR RIGHTS Please Read This Court Ordered Class Action Notice.If you or your company have accepted MasterCard or Visa-branded credit cards or debit cards as a form of payment for goods or services at any time from October 25, 1992 to the present, you or your company may be affected by a class action lawsuit pending in the United States District Court for the Eastern District of New York styled In re Visa Check/MasterMoney Antitrust Litigation, No. CV-96-5238 (the "Action"). ibis is to inform you of the certification of the class, the nature of the claims, and your right to participate in, or exclude yourself from, the class.
What is this case about? Plaintiffs claim that Visa and MasterCard ("Defendants"), individually, and in conspiracy with their member banks, have violated the federal antitrust laws by forcing merchants who accept Visa and/or MasterCard-branded credit cards for payment also to accept Visa and/or MasterCard-branded debit cards for payment, and by conspiring and attempting to monopolize a market for general purpose point of sale debit cards. Plaintiffs claim that these actions have caused merchants to pay excessive fees for credit and debit transactions. Plaintiffs seek: (1) an injunction prohibiting Defendants from engaging in the alleged antitrust violations; and (2) the recovery of treble damages for the alleged excess portion of fees paid on credit and debit transactions, as well as costs and attorneys' fees. Defendants deny Plaintiffs' allegations and assert that their business practices are lawful, justified and the result of independent business competition, and that those practices have benefited competition, merchants, and consumers, and have not harmed the Plaintiffs. The Court has not ruled on the merits of Plaintiffs' or Defendants' claims.
Am I affected by this litigation? You are if you are a member of the following class certified by the Court: "all persons and business entities who have accepted Visa and/or MasterCard credit cards and therefore have been required to accept Visa Check and/or MasterMoney debit cards" at any time from October 25, 1992 to the present, but excluding "the named Defendants, their directors, officers or members of their families" (the "Class").
If you remain a class member you will be bound by all orders and judgments of the Court. Any claims you have against Defendants arising out of their conduct at issue in this Action will be determined in this Action and cannot be pursued in any other action. If there is a recovery, you may be entitled to share in the proceeds, less such costs and attorneys' fees as the Court may allow. You will be represented by the attorneys for the Class. You also may seek to intervene individually, or to participate through your own attorney at your own expense.
How do I remain a class member? YOU NEED NOT DO ANYTHING AT THIS TIME.
How do I exclude myself from the class? If you are an individual or an authorized representative of a company that is a member of the Class, you may exclude yourself or your company from the Class, to the extent that opt-out rights are afforded to Class members, by making a written request for exclusion bearing the title "Request for Exclusion from Class: In Re Visa Check/MasterMoney Antitrust Litigation," and sending it by first class mail, postage pre-paid, to the class notice administrator, The Garden City Group, Inc. P. O. Box 9000-6014, Merrick, New York, 11566-9000, 1800 XXX-XXXX, Attn: In re Visa Check/MasterMoney Antitrust Litigation. Your request should provide the name address and telephone number of the person or business entity that wishes to be excluded from the class, contain your printed name and title (if on behalf of a business entity), and be signed by you. In order for your request to be effective, it must be postmarked on or before November 14, 2002. If excluded, you or your company will not participate in any recovery that the Class obtains. You also will not be bound by any decisions favorable to Defendants, except insofar as you are also a member of a Class as to which no opt-out rights are afforded. You will have the right, at your own expense, to pursue a separate action against the Defendants. DO NOT submit a written request for exclusion if you or your company wish to remain a member of the Class.
What if I have questions? You may obtain a more detailed description of the Action and your rights by visiting
www.InReVisaCheck-MasterMoneyAntitrustLitigation.com.
You also may contact lead counsel for the Class, Constantine Partners, at 477 Madison Avenue, New York, New York 10022 (212) 350-2799 or co-lead counsel, Hagens Berman, at 1301 5th Avenue, Seattle, WA 98101. Pleadings, orders and other publicly filed documents in this action may be examined and copied at the Clerk's office, United States District Court for the Eastern District of New York, 225 Cadman Plaza East, Brooklyn, N.Y. 11201. PLEASE DO NOT CONTACT THE COURT.
Dated: June ___, 2002, The Honorable John H. Gleeson, United States District Court Judge.
Exhibit I In re Visa Check/Master Money Antitrust Litigation , CV-96-5238, pending in the United States District Court for the Eastern District of New York PUBLICATIONS IN WHICH SUMMARY NOTICE WILL BE PUBLISHEDGeneral Publications:
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Merchant Trade Publications:
Chain Store Age
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