Case 20-339, Document 512, 03/27/2023, 3490094, Page1 of 84
`
`20-339(L)
`
`20-304(CON), 20-340(CON), 20-341(CON), 20-342(CON), 20-343(CON), 20-344(CON)
`______________________________________________________
`
`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`____________________________
`
`IN RE PAYMENT CARD INTERCHANGE FEE AND MERCHANT
`DISCOUNT ANTITRUST LITIGATION
`__________________________________
`
`On Appeal from the United States District Court
`for the Eastern District of New York, No. 05-1720
`___________________________________________________________________
`
`PETITION FOR PANEL REHEARING OR EN BANC REHEARING BY
`APPELLANTS GNARLYWOOD LLC AND QUINCY WOODRIGHTS,
`LLC (20-341 CON), AND UNLIMITED VACATIONS AND CRUISES, INC.
`AND USA PETS LLC (20-343 CON)
`___________________________________________________________
`
`Kendrick Jan
`Kendrick Jan, APC
`225 Broadway, Suite 2220
`San Diego, CA 92101
`Tel: (619) 231-7702
`kj@jan-law.com
`
`John J. Pentz
`18 Damon Street
`Wayland, MA 01778
`Tel: (978) 985-4668
`jjpentz3@gmail.com
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 20-339, Document 512, 03/27/2023, 3490094, Page2 of 84
`
`Pursuant to FRAP 35 and 40, Appellants Gnarlywood LLC, Quincy
`
`Woodrights, LLC, Unlimited Vacations and Cruises, Inc., and USA Pets LLC,
`
`hereby move for Panel and/or en banc rehearing. The Panel Opinion1 in this appeal
`
`conflicts with two prior opinions of this Court, see Melito v. Experian Mktg. Sols.,
`
`Inc., 923 F.3d 85 (2d Cir. 2019) and Hyland v. Navient Co., 48 F.4th 110 (2d Cir.
`
`2022), and a decision of the United States Supreme Court. See Trustees v
`
`Greenough, 105 U.S. 527 (1881). Consideration of this appeal by the full Court is
`
`necessary to establish uniformity in this Circuit.
`
`ARGUMENT
`
`
`
`I.
`
`
`
`THE PANEL’S DECISION CONFLICTS WITH SUPREME COURT
`PRECEDENT AND PRIOR PANEL DECISIONS OF THIS
`CIRCUIT
`
`The Panel in this case was unanimous in its opinion that Trustees v.
`
`Greenough, 105 U.S. 527 (1881) prohibits incentive or service awards in any
`
`amount. See Panel Opinion (attached hereto) at p. 34. Nonetheless, the Panel felt
`
`compelled by this Court’s prior decisions in Melito v. Experian Mktg. Sols., Inc.,
`
`923 F.3d 85 (2d Cir. 2019) and Hyland v. Navient Co., 48 F.4th 110 (2d Cir. 2022),
`
`to allow these prohibited awards on the grounds of stare decisis. See Panel Opinion
`
`at p. 35 (“But practice and usage seem to have superseded Greenough (if that is
`
`
`1 Panel Opinion refers to the March 15, 2023, opinion in this case.
`
`1
`
`

`

`Case 20-339, Document 512, 03/27/2023, 3490094, Page3 of 84
`
`possible)… And even if (as we think) practice and usage cannot undo a Supreme
`
`Court holding, Melito and Navient are precedents that we must follow.”)
`
`In his concurring opinion, Judge Jacobs made clear that the reasoning of this
`
`Court’s prior decisions in Melito and Hyland is thin gruel and hardly an adequate
`
`basis for distinguishing Greenough in the Rule 23 context. Melito, in a scant
`
`paragraph, called Greenough “inapposite,” citing only to an Eleventh Circuit
`
`decision that has since been reversed by Johnson v. NPAS Solutions LLC, 975 F.3d
`
`1244 (11th Cir. 2020). Hyland merely mimicked Melito without further analysis.
`
`See Jacobs, concurring, at p. 6.
`
`The Panel Opinion throws Second Circuit jurisprudence into chaos in light
`
`of its concomitant holding – springing from the fact there was never any
`
`authorization for incentive awards and that they are created out of whole cloth –
`
`that there are no standards that bound the discretion of district courts when making
`
`such awards. Panel Opinion at p. 39 (“basis for any service award in a class action
`
`is at best dubious under Greenough [and] calculation of such an award is
`
`standardless”). District courts are now free to reflexively follow the holdings of
`
`Melito and Hyland, or to adhere to the Panel’s opinion that such awards are legally
`
`infirm. Without further guidance from the en banc Court, the Panel’s holding
`
`leaves district courts without standards and unconstrained in choosing to grant or
`
`2
`
`
`

`

`Case 20-339, Document 512, 03/27/2023, 3490094, Page4 of 84
`
`not grant incentive awards – whether awarding nothing or, as here, hundreds of
`
`thousands of dollars.
`
`The Panel Opinion makes necessary the guidance of the full Court of
`
`Appeals. While the conflict between panels would be starker had the Panel
`
`distinguished the superficial reasoning of Melito and Hyland and reversed, the
`
`Panel’s comments regarding Greenough have left Second Circuit incentive award
`
`jurisprudence in disarray. Three judges of this Court have now opined that two
`
`prior Second Circuit panels erred by following the holding of a since-overturned
`
`Eleventh Circuit decision, but that they are compelled by stare decisis to repeat
`
`that error. The next district court asked to approve an incentive award will be
`
`forced to guess what the next appellate panel might do. If left to stand, the Panel
`
`Opinion effectively provides that there is no identifiable law in this Circuit on the
`
`permissibility of or limits on incentive awards. At a minimum, the full Court
`
`should accept this matter to establish some uniform standards by which district
`
`courts may calculate these awards.
`
`
`
`
`
`3
`
`
`

`

`Case 20-339, Document 512, 03/27/2023, 3490094, Page5 of 84
`
`II. THE PANEL DECISION IS INTERNALLY INCONSISTENT IN ITS
`TREATMENT OF LOBBYING TIME
`
`
`
`
`The Panel Opinion is also inconsistent in its treatment of time spent lobbying
`
`for changes to the laws governing credit card transaction fees. Both Class Counsel
`
`and the lead plaintiffs spent enormous amounts of time seeking changes to the laws
`
`governing transaction fees and credit card competition. As recognized by the
`
`Panel, this work had nothing to do with the damages class action now on appeal.
`
`With regard to the lead plaintiffs, the Panel held that “[t]he class should not pay
`
`for time spent lobbying for changes in law that do not benefit the class. We direct
`
`the court to reduce the award to the extent its size was increased because of time
`
`spent lobbying.” Panel Opinion at p. 39. With respect to Class Counsel, however,
`
`who spent at least $24 million in lodestar time, and likely far more than that,
`
`lobbying for passage of the Durbin amendment and otherwise performing work
`
`unrelated to the recovery of damages on behalf of the (b)(3) class, the Panel held
`
`that “if the work done on behalf of the injunction class could all be teased apart
`
`from the work done for the damages class, the district court should have done so.
`
`But that was not an option. The injunctive and monetary claims were
`
`interwoven…” Panel Opinion at p. 48.
`
`This is not entirely correct. While it may be that some aspects of the
`
`injunctive and monetary causes were interwoven, Class Counsel admit their
`
`4
`
`
`

`

`Case 20-339, Document 512, 03/27/2023, 3490094, Page6 of 84
`
`legislative lobbying did nothing to advance the interests of the (b)(3) class.2 If the
`
`legislative lobbying makes more difficult the recovery of damages, there is no
`
`reason the (b)(3) class should be ordered to pay for that lobbying.
`
`
`
`As a factual matter, enormous blocks of Class Counsel’s time, supporting
`
`several millions of dollars of lodestar, were spent exclusively on lobbying, and
`
`were clearly identified as such in their time records and declarations filed in
`
`support of their fee motions. See JA A-2515-2516 and A-2554-2559. Further,
`
`Appellants identified at least $17.8 million of lodestar spent exclusively on the
`
`easily identified non-(b)(3) pursuits of the ASR Group of no benefit to the (b)(3)
`
`class. JA A-5956 and JA A-2495-2496.
`
`Class Counsel bears the burden of establishing what portion of their claimed
`
`lodestar was actually spent in pursuit of redress for the damages suffered by the
`
`(b)(3) class. Cruz v. Local Union No. 3 of the Int’l Bhd. Of Elec. Workers, 34 F.3d
`
`1148, 1160 (2d Cir. 1994), citing Hensley v. Eckkerhart, 461 U.S. 424, 437 (1983).
`
`Class Counsel did not make, and the district court did not require, any effort to
`
`
`2 Class Counsel argued at the fairness hearing that the passage of the Durbin
`Amendment, for example, increased the risk that they would not recover damages
`or would recover lower damages. Fairness Hearing Tr., JA A-7147. In other words,
`Class Counsel were actually working against the interest of their Rule 23(b)(3)
`clients when they were pursuing legislative and regulatory reforms.
`
`
`5
`
`
`

`

`Case 20-339, Document 512, 03/27/2023, 3490094, Page7 of 84
`
`apportion lodestar among efforts spent advocating separately for the distinct
`
`conflicted parties.
`
`The Panel remanded with instructions to distinguish the lead plaintiffs’ time
`
`spent lobbying from time spent pursuing a damages award – which will
`
`presumably require lead plaintiffs to file further details regarding their claimed
`
`hours sufficient to assist the court in distinguishing lobbying efforts from damages
`
`work. The Panel should have given the district court the same instruction regarding
`
`Class Counsel’s time spent on legislative lobbying and other extraneous non-(b)(3)
`
`pursuits. At the very least, Class Counsel should be required to file sufficient
`
`additional lodestar detail to permit an accurate calculation of Class Counsel’s
`
`lodestar, shorn of legislative lobbying work.
`
`
`
`
`
`6
`
`
`

`

`Case 20-339, Document 512, 03/27/2023, 3490094, Page8 of 84
`
`III. THE PANEL FAILED TO CORRECTLY APPLY SILBIGER TO THE
`FACTS OF THIS CASE
`
`
`
`
`The Panel erred in its application of Silbiger v. Prudence Bonds Corp., 180
`
`F.2d 917 (2d Cir. 1950). The Panel purported to apply an exception to the
`
`forfeiture rule for conflicted representation where the fee is paid exclusively by a
`
`group that was not prejudiced by the attorney’s divided allegiance. The Panel’s
`
`assumption that the damages class was not “prejudiced” by the conflicted
`
`representation is clearly erroneous and ignores Appellants’ arguments. To the
`
`contrary, Class Counsel themselves concede the (b)(3) litigation landscape post-
`
`2016 was less favorable specifically because of the Durbin Amendment, the
`
`passage of which was actively and extensively advocated by Class Counsel. The
`
`conflicted representation further prejudiced the damages class by forcing it to pay
`
`for tens of millions of dollars of legal work performed exclusively for the benefit
`
`of the injunctive class.3
`
`Class Counsel should have obtained the current $5.6 billion settlement for
`
`fees of far less than $500 million, which would have resulted in substantially more
`
`money remaining in the net settlement fund. The conflicted representation
`
`permitted Class Counsel to run the meter on the (b)(3) damages class and overbill
`
`
`3 Paying excessive fees is indistinguishable from recovering less money in damages.
`The (b)(3) class members care only about their net recovery.
`
`7
`
`
`

`

`Case 20-339, Document 512, 03/27/2023, 3490094, Page9 of 84
`
`that class tens of millions of dollars due to the lack of separate representation and
`
`segregated billing.
`
`There is ample evidence in Class Counsel’s briefing of tens of thousands of
`
`hours spent on non-compensable tasks,4 none of which was excluded from their
`
`claimed lodestar. Because Class Counsel was intentionally derelict in its duty to
`
`segregate pre-2016 (b)(2) time from pre-2016 (b)(3) time, they should, per Silbiger,
`
`receive credit for neither.
`
`Refusing to consider any pre-2016 hours is a reasonable remedy for Class
`
`Counsel’s failure to make any effort to eliminate from its lodestar those hours spent
`
`on activities that did not directly contribute to the (b)(3) class’s monetary recovery,
`
`which directly prejudiced the (b)(3) class. If the Court is inclined to allow that some
`
`of Class Counsel’s work served the interest of both the (b)(2) and (b)(3) classes, at
`
`the very least, Appellants seek to have excluded all pre-2016 time because of both
`
`Class Counsel’s self-created conflict, and Class Counsel’s failure to segregate hours
`
`spent exclusively on extra-judicial and injunctive relief.
`
`
`
`
`
`
`4 Class Counsel’s fee memorandum describes pre-remand services that included
`“petition[ing] all three branches of the Federal Government and Monitor[ing]
`Foreign Governments,” “draft[ing] an amicus brief” in third party litigation, filing
`“an additional amicus brief in that same third party matter, and providing
`“substantial assistance” to the DOJ. JA A-5917 – 5924. None of this activity
`contributed anything to the recovery of monetary damages.
`
`8
`
`
`

`

`Case 20-339, Document 512, 03/27/2023, 3490094, Page10 of 84
`
`IV. THE PANEL’S DECISION TO PUNT THE FUTURE RELEASE
`ISSUE TO A FUTURE COURT DENIES NEWER CLASS
`MEMBERS THE PROTECTIONS OF RULE 23
`
`
`
`The Panel elected to leave to another time and court the matter of the
`
`inequitable impact of the settlement’s future release, thus denying a substantial
`
`portion of the class a remedy for violations of rule 23(a)(4) and 23(e)(2)(D). If the
`
`interests of recently-formed businesses5 are to be afforded the protections of Rule
`
`23, it must happen in this proceeding or not at all.
`
`Appellants do not simply challenge the legality of a future release in the
`
`abstract. Rather, they argue the interests of newer class members were not
`
`adequately advocated and – though the scope of the release applies uniformly to
`
`class members – the plan of allocation fails to correspond with the burdens of the
`
`release and to provide an equitable distribution among class members. For
`
`example, a business started in January 2019 will receive compensation for one
`
`month of credit card transaction fees while releasing nine years of claims.6 The
`
`lead plaintiffs will all receive compensation for at least fifteen years of transaction
`
`
`5 This issue impacts not just recently-formed businesses but also those whose credit
`card sales are increasing year over year.
`
` The future release now runs through at least March 2028.
`
` 6
`
`
`
`9
`
`
`

`

`Case 20-339, Document 512, 03/27/2023, 3490094, Page11 of 84
`
`fees, while releasing twenty-four years of claims.7 The future release results in
`
`inequitable differential treatment of Class members holding released claims of the
`
`same legal merit.8 Appellants argued this constitutes a lack of adequate
`
`representation within the meaning of Rule 23(a)(4) and a violation of the
`
`23(e)(2)(D) requirement that a settlement treat “class members equitably relative
`
`to each other.”9
`
`The Panel’s determination that it “has no occasion to decide” questions
`
`regarding the protections of Rules 23(a)(4) and 23(e)(2)(D) in this case because
`
`the settlement’s release “extend[s] to, but only to, the fullest extent permitted by
`
`federal law” overstates a future court’s jurisdiction. Left to stand, the district
`
`court’s approval of the settlement – and its finding that Class Counsel and lead
`
`plaintiffs adequately represented the interests of all class members and that a pro
`
`
`7 Consider also that those class members who ceased doing business during the
`claims period will receive 100% of their claims’ settlement value, while class
`members in business for only the last month of the claims period will receive just
`around 1%.
`
` 8
`
` The scope of the release applies uniformly to class members. The plan of allocation,
`however, does not correspond with the scope of the release and is neither pro rata
`nor equitable.
`
` 9
`
` The drafting committee regarded as a matter of particular concern “whether the
`apportionment of relief among class members takes appropriate account of
`differences among their claims, and whether the scope of the release may affect class
`members in different ways that bear on the apportionment of relief.” (Emphasis
`added) Fed. R. Civ. P. 23 Committee Notes on Rules – 2018 Amendment,
`Subdivision (e)(2), paragraphs (C) and (D).
`
`10
`
`
`

`

`Case 20-339, Document 512, 03/27/2023, 3490094, Page12 of 84
`
`rata distribution for a period shorter than the release period is fair and reasonable
`
`– will be res judicata. Another court simply will not have occasion to rule on
`
`whether the class members were denied the protections of Rules 23(a)(4) and
`
`23(e)(2)(D). The only question left would be whether a future claim stems from
`
`the same factual predicate as those compensated by this action. At best, a future
`
`court’s consideration of lawfulness of the future release would be an incomplete
`
`analysis of the issues now presented to this Court.
`
`Only this Panel or the full Court has the opportunity to address the issue of
`
`whether the future release, assuming its legality in the abstract, impacts certain class
`
`members in different ways that bear on the apportionment of relief. This Court must
`
`rule on this issue now, or else the newer businesses will be forever saddled with a
`
`settlement that shortchanges them. Leaving the matter to another court on another
`
`day will forever prejudice the interests of newer class members.
`
`
`
`
`
`11
`
`
`

`

`Case 20-339, Document 512, 03/27/2023, 3490094, Page13 of 84
`
`
`
`CONCLUSION
`
`
`
`For the foregoing reasons, this Court should: (1) grant this petition for en banc
`
`rehearing to clarify the current conflict in Second Circuit law; or (2) grant a Panel
`
`rehearing.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`/s/ John J. Pentz
`John J. Pentz, Esq.
`18 Damon Street
`Wayland, MA 01778
`Phone: (978) 985-4668
`jjpentz3@gmail.com
`Attorney for Appellants
`Unlimited Vacations and
`Cruises Inc., and USA Pets LLC
`
`
`
`
`
`/s/ Kendrick Jan
`Kendrick Jan
`Kendrick Jan, APC
`225 Broadway, Suite 2220
`San Diego, CA 92101
`Tel: (619) 231-7702
`kj@jan-law.com
`Attorney for Appellants
`Gnarlywood LLC and
`Quincy Woodrights, LLC
`
`
`
`12
`
`
`

`

`Case 20-339, Document 512, 03/27/2023, 3490094, Page14 of 84
`
`CERTIFICATE OF COMPLIANCE WITH FRAP 32
`AND LOCAL RULE 28.1.1
`
`
`
`
`
`1. This document complies with the type-volume limitation of FRAP
`
`35(b)(2) because this document contains fewer than 3,900 words.
`
`2. This document complies with the typeface requirements of Fed. R. App.
`
`P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
`
`document has been prepared in a proportionally spaced typeface using Microsoft
`
`/s/ John J. Pentz
`Attorney for Appellants
`Unlimited Vacations and
`Cruises Inc., and USA Pets LLC
`
`/s/ Kendrick Jan
`Attorney for Appellants
`Gnarlywood LLC and
`Quincy Woodrights, LLC
`
`Word 2013 in 14-point Times New Roman.
`
`
`
`Dated: March 27, 2023
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`13
`
`
`

`

`Case 20-339, Document 512, 03/27/2023, 3490094, Page15 of 84
`
`CERTIFICATE OF SERVICE
`
`
`
`I hereby certify that on March 27, 2023, I filed the PETITION FOR PANEL
`
`REHEARING OR EN BANC REHEARING via the ECF filing system for the
`
`United States Court of Appeals for the Second Circuit, and that as a result each
`
`counsel of record received an electronic copy of this Brief on March 27, 2023.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ John J. Pentz
`
`
`
`14
`
`
`

`

`
`
`Case 20-339, Document 503-1, 03/15/2023, 3483698, Page1 of 53Case 20-339, Document 512, 03/27/2023, 3490094, Page16 of 84
`
`20-339-cv(L)
`In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`____________________
`
`
`
`
`(Argued: March 16, 2022
`
`
`August Term, 2021
`
`
`
`
`
`
`
`Decided: March 15, 2023)
`
`
`
`Docket Nos. 20-339(L), 20-340(CON),
`20-341(CON), 20-342(CON), 20-343(CON), 20-344(CON)
`
`____________________
`
`
`
`Fikes Wholesale, Inc.,
`
` Plaintiff - Appellant,
`
`
`Plaintiffs in civil action Photos Etc. Corp. v. Visa U.S.A., Inc. 05-cv-5071JG-JO,
`CHS Inc., Leons Transmission Service, Inc., Traditions, Ltd., Plaintiffs in civil
`action Parkway Corp. v. Visa U.S.A., Inc. 05-cv-5077 JG-JO, Plaintiffs in civil
`action Discount Optics, Inc., et al. v. Visa U.S.A., Inc., et al. 05-cv-5870 JG-JO,
`Payless Shoe Source, Inc., Capital Audio Electronics, Inc.,
`
` Plaintiffs - Appellees,
`
`Plaintiffs in civil action Jetro Holding, Inc. et al v. Visa U.S.A., Inc. et al 05-cv-
`4520 JG-JO, Plaintiffs in civil action National Association of Convenience Stores
`et al v. Visa U.S.A., Inc. et al 05-cv-4521 JG-JO, Plaintiffs in civil action Supervalu
`Inc. v. Visa U.S.A. Inc. et al 05-cv-4650 JG-JO, Plaintiffs in civil action Seaway Gas
`& Petroleum, Inc. v. Visa U.S.A., Inc. et al 05-cv-4728-JG-JO, Plaintiffs in civil
`action Raley's v. Visa U.S.A. Inc. et al 05-cv- 4799 JG-JO, Plaintiffs in civil action
`East Goshen Pharmacy, Inc. v. Visa U.S.A., Inc. 05-cv-5073 JG-JO, Plaintiffs in
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`29
`30
`31
`32
`33
`34
`
`

`

`
`
`Case 20-339, Document 503-1, 03/15/2023, 3483698, Page2 of 53Case 20-339, Document 512, 03/27/2023, 3490094, Page17 of 84
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`29
`30
`31
`32
`33
`34
`35
`
`civil action National Grocers Association et al v. Visa U.S.A., Inc. et al 05-cv- 5207
`JG-JO, Plaintiffs in civil action American Booksellers Association v. Visa U.S.A.,
`Inc. et al 05-cv-5319 JG-JO, Plaintiffs in civil action Rookies, Inc. v. Visa U.S.A.,
`Inc. 05-CV-5069 JG-JO, Plaintiffs in civil action Jasperson v. Visa U.S.A., Inc. 05-
`cv-5070 JG-JO, Plaintiffs in Civil action Animal Land, Inc. v. Visa U.S.A., Inc 05-
`cv-5074 JG-JO, Plaintiffs in civil action Bonte Wafflerie, LLC v. Visa U.S.A., Inc.
`05-cv-5083 JG-JO, Plaintiffs in civil action Broken Ground, Inc. v. Visa U.S.A., Inc.
`05-cv-5082 JG-JO, Plaintiffs in civil action Baltimore Avenue Foods, LLC v. Visa
`U.S.A., Inc. 05-cv-5080 JG-JO, Plaintiffs in civil action Fairmont Orthopedics &
`Sports Medicine, PA v. Visa U.S.A., Inc. 05-cv-5076 JG JO, Plaintiffs in civil action
`Tabu Salon & Spa, Inc. v. Visa U.S.A., Inc. 05-cv-5072 JG-JO, Plaintiffs in civil
`action Lakeshore Interiors v. Visa U.S.A., Inc. 05-cv-5081JG JO, Plaintiffs in civil
`action NuCity Publications, Inc. v. Visa U.S.A., Inc. 05-cv-5075 JG-JO, Plaintiffs in
`civil action Hyman v. VISA International Service Association, Inc. 05-cv-5866 JG-
`JO, Plaintiffs in civil action Lee et al v. Visa U.S.A. Inc. et al 05-cv-3800 JG-JO,
`Plaintiffs in civil action Resnick Amsterdam & Leshner P.C. v. Visa U.S.A., Inc. et
`al 05-cv-3924 JG-JO, Plaintiffs in civil action Hy-Vee, Inc. v. Visa U.S.A., Inc. et al
`05-cv-3925-JG-JO, Plaintiffs in civil action Meijer, Inc. et al v. Visa U.S.A. Inc. et al
`05-cv-4131-JG-JO, Plaintiffs in civil action Lepkowski v. Mastercard International
`Incorporated et al 05-cv-4974 JG-JO, Plaintiffs in civil action Kroger Co. v. Visa
`U.S.A., Inc. 05-cv-5078 JG-JO, Plaintiffs in civil action Fitlife Health Systems of
`Arcadia, Inc. v. Mastercard International Incorporated et al 05-cv-5153 JG-JO,
`Plaintiffs in civil action Harris Stationers, Inc., et al. v. Visa International Service
`Association, et al. 05-cv-5868 JG-JO, Plaintiffs in civil action Dr. Roy Hyman, et al
`v. Visa International Service Association, Inc., et al . 05-cv-5866 JG-JO, Plaintiffs
`in civil action Performance Labs, Inc. v. American Express Travel Related
`Services Co., Inc., et al. 05-cv-5869 JG-JO, Plaintiffs in civil action Leeber Cohen,
`M.D. v. Visa U.S.A., Inc., et al. 05-cv-5878 JG-JO, Plaintiffs in civil action G.E.S.
`Bakery, Inc. v. Visa U.S.A., Inc., et al. 05-cv-5879 JG-JO, Plaintiffs in civil action
`Connecticut Food Association, Inc., et al. v. Visa U.S.A., Inc., et al. 05-cv-5880 JG-
`JO, Plaintiffs in Twisted Spoke v. Visa U.S.A., Inc., et al. 05-cv-5881 JG-JO,
`Plaintiffs in civil action Lombardo Bros., Inc. v. Visa U.S.A., Inc. 05-5882 JG-JO,
`Plaintiffs in civil action Abdallah Bishara, etc. v. Visa U.S.A., Inc. 05-cv-5883 JG-
`JO, Plaintiffs in civil action 518 Restaurant Corp. v. American Express Travel
`Related Services Co., Inc., et al. 05-cv-5884 JG-JO, Plaintiffs in civil action JGSA,
`2
`
`
`
`

`

`
`
`Case 20-339, Document 503-1, 03/15/2023, 3483698, Page3 of 53Case 20-339, Document 512, 03/27/2023, 3490094, Page18 of 84
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`29
`30
`31
`32
`33
`34
`35
`
`Inc. v. Visa U.S.A., Inc., et al. 05-cv-5885 JG-JO, Plaintiffs in civil action The
`Kroger Co., et al. v. MasterCard Inc., et al., 06-cv-0039 JG-JO, Plaintiffs in civil
`action Rite Aid Corporation et al. v. Visa U.S.A., Inc. et al. 05-cv-5352 JG-JO,
`Plaintiffs in civil action Fringe, Inc. v. Visa, U.S.A., Inc et al 05-cv-4194 JG-JO,
`Plaintiffs in civil action Bi-Lo, LLC. et al v. Visa U.S.A., Inc. et al 06-cv-2532 JG-
`JO, Plaintiffs in civil action Bi-Lo, LLC. et al v. Mastercard Incorporated et al 06-
`cv-2534 JG-JO, Plaintiffs in civil action 06-cv-5583, Esdacy, INC. v. Visa USA,
`INC. et al, QVC, Inc., GMRI, Inc., NATSO, Incorporated, Plaintiffs in civil action
`BKS. v. Visa U.S.A., Inc. et al 09-cv-2264-JG-JO, Plaintiffs in civil action Gulfside
`Casino Partnership. v. Visa U.S.A., Inc. et al 09-cv-03225 JG-JO, Keith
`Superstores, BKS, INC., BKS of LA, Inc. d/b/a KEITH SUPERSTORES, and
`KEITHCO PETROLEUM, INC., Keithco Petroleum, Inc., BKS, INC., BKS of LA,
`Inc. d/b/a KEITH SUPERSTORES, and KEITHCO PETROLEUM, INC., National
`Community Pharmacists Association, National Cooperative Grocers Association,
`Coborn's Incorporated, D'Agostino Supermarkets, Inc., National Restaurant
`Association, Affiliated Foods Midwest, Gielen Enterprises, Inc., Rice Palace, Inc.,
`Tobacco Plus, Inc., CVS Pharmacy, Inc., Plaintiffs in Delta Airlines Inc et all v.
`Visa Inc et al, 1:13-cv-04766-JG-JO, Cox Communications, Inc., Cox Enterprises,
`Inc., Cox Media Group, Inc., G6 Hospitality LLC, Live Nation Entertainment,
`Inc., Manheim Inc., Motel 6 Operating LP, E-Z Mart Stores, Inc., Jacksons Food
`Stores, Inc./PacWest Energy LLC, Kum & Go, L.C., Sheetz, Inc., Susser Holdings
`Corporation, The Pantry, Inc., Plaintiffs in Target Corporation, et al. v. Visa Inc.,
`et al., 13-cv-03477, DSW Inc., Jetblue Airways Corporation, Plaintiffs in Civil
`Action 7-Eleven Inc., et al. v. Visa Inc. et al, 1:13-cv-05746-JG-JO, Minnesota
`Twins LLC, Crystal Rock LLC, Plaintiffs in Civil Action Target Corporation, et al.
`v. Visa Inc. et al., 13-cv-4442, Plaintiffs in civil action Publix Supermarkets, Inc. v.
`Visa U.S.A. Inc. et al 05-cv-4677 - JG-JO, Plaintiffs in civil action LDC, Inc. v. Visa
`U.S.A., Inc., et al 05-cv-5871 JG-JO, Robersons Fine Jewlery, Inc., Sunoco, Inc.
`(RM), Einstein Noah Restaurant Group, Inc., Furniture Row BC, Inc., Google,
`Inc., Google Payment Corporation, Bass Pro Group, LLC, American Sportsman
`Holdings Co., Bass Pro Outdoor World, LLC, BPIP, LLC, BPS Direct, LLC, Big
`Cedar, LLC, Fryingpan River Ranch, LLC,
`
` Plaintiffs,
`
`3
`
`
`
`

`

`
`
`Case 20-339, Document 503-1, 03/15/2023, 3483698, Page4 of 53Case 20-339, Document 512, 03/27/2023, 3490094, Page19 of 84
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`29
`30
`31
`32
`33
`34
`35
`
`v.
`
`HSBC Bank USA, N.A., Capital One Bank, Capital One, F.S.B., Capital One
`Financial Corporation, Wells Fargo & Company, Juniper Financial Corporation,
`National City Bank of Kentucky, National City Corporation, Mastercard
`Incorporated, HSBC Finance Corporation, HSBC North America Holdings Inc.,
`Citibank, N.A., Citigroup Inc., Chase Bank USA, N.A., JPMorgan Chase & Co.,
`Fifth Third Bancorp, Bank of America, N.A., First National Bank of Omaha,
`Barclays Financial Corp., Chase Paymentech Solutions, LLC, Visa International
`Service Association, Visa U.S.A. Inc., Bank of America Corporation, Texas
`Independent Bancshares, Inc., Wells Fargo Merchant Services, LLC, Visa Inc.,
`Capital One Bank, (USA), N.A., JP Morgan Chase Bank, N.A., Barclays Bank
`PLC, Barclays Bank Delaware, MBNA America Bank, N.A., HSBC Finance
`Corporation, HSBC Holdings PLC, HSBC North America Holdings, Inc, PNC
`Financial Services Group, Inc., SunTrust Bank, Suntrust Banks Inc, Wells Fargo
`Bank, N.A., Wachovia Corporation, Wachovia Bank, National Association, BA
`Merchant Services LLC, FKA National Processing, Inc., FIA Card Services, N.A.,
`Mastercard International Incorporated,
`
` Defendants - Appellees,
`
`Defendants in civil action Jetro Holding, Inc. et al v. Visa U.S.A., Inc. et al 05-cv-
`4520 JG-JO, Defendants in civil action National Association of Convenience
`Stores et al v. Visa U.S.A., Inc. et al 05-cv-4521 JG-JO, Defendants in civil action
`Supervalu Inc. v. Visa U.S.A. Inc. et al 05-cv-4650 JG-JO, Defendants in civil
`action Publix Supermarkets, Inc. v. Visa U.S.A. Inc. et al 05-cv-4677-JG-JO,
`Defendants in civil action Seaway Gas & Petroleum, Inc. v. Visa U.S.A., Inc. et al
`05--cv-4728 JG-JO, Defendants in civil action Raley's v. Visa U.S.A. Inc. et al 05-
`cv-4799- JG-JO, Defendants in civil action East Goshen Pharmacy, Inc. v. Visa
`U.S.A., Inc 05-cv-5073-JG-JO, Defendants iin civil action National Grocers
`Association et al v. Visa U.S.A., Inc. et al 05-cv- 5207 JG -JO, Defendants in civil
`action American Booksellers Association v. Visa U.S.A., Inc. et al 05-cv-5319 JG -
`JO, Defendants in civil action Rookies, Inc. v. Visa U.S.A., Inc. 05-cv-5069-JG-JO,
`Defendants in civil action Jasperson v. Visa U.S.A., Inc. 05-cv-5070-JG-JO,
`Defendants in civil action Animal Land, Inc. v. Visa U.S.A., Inc. 05-cv-5074-JG-
`4
`
`
`
`

`

`
`
`Case 20-339, Document 503-1, 03/15/2023, 3483698, Page5 of 53Case 20-339, Document 512, 03/27/2023, 3490094, Page20 of 84
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`29
`30
`31
`32
`33
`34
`35
`
`JO, Defendants in civil action Bonte Wafflerie, LLC v. Visa U.S.A., Inc. 05-cv-5083
`JG-JO, Defendants in civil action Broken Ground, Inc. v. Visa U.S.A., Inc. 05-cv-
`5082 JG-JO, Defendants in civil action Baltimore Avenue Foods, LLC v. Visa
`U.S.A., Inc. 05-cv-5080 JG-JO, Defendants in civil action Fairmont Orthopedics &
`Sports Medicine, PA v. Visa U.S.A., Inc. 05-cv-5076-JG-JO, Defendants in civil
`action Tabu Salon & Spa, Inc. v. Visa U.S.A., Inc. 05-cv-5072 -JG-JO, Defendants
`in civil action Lakeshore Interiors v. Visa U.S.A., Inc. 05-cv-5081 JG-JO,
`Defendants in civil action Parkway Corp. v. Visa U.S.A., Inc. 05-cv-5077-JG-JO,
`Defendants in civil action Hyman v. VISA International Service Association, Inc.
`05-cv-5866 JG -JO, Defendants in civil action Lee et al v. Visa U.S.A. Inc. et al 05-
`cv-03800, Defendants in civil action Resnick Amsterdam & Leshner P.C. v. Visa
`U.S. A, Inc. et al, 05-cv-3924 JG-JO, Defendants in civil action Hy-Vee, Inc. v. Visa
`U.S.A., Inc. et al 05-cv-03925 JG-JO, Defendants in civil action Meijer, Inc. et al v.
`Visa U.S.A. Inc. et al 05-cv-4131 JG-JO, Defendants in civil action Lepkowski v.
`Mastercard International Incorporated et al 05-cv-4974-JG-JO, Defendants in civil
`action Photos Etc. Corp. v. Visa U.S.A., Inc. 05-cv-5071-JG-JO, Defendants in civil
`action Kroger Co. v. Visa U.S.A., Inc. 05-cv-5078 JG-JO, Defendants in civil case
`Fitlife Health Systems of Arcadia, Inc. v. Mastercard International Incorporated
`et a 05-cv-5153 JG -JO, Defendants in civil action Rite Aid Corporation et al. v.
`Visa U.S.A., Inc. et al. 05-cv-5352 JG-JO, Defendants in civil action The Kroger
`Co., et al. v. MasterCard Inc., et al., 06-cv-0039 JG-JO, Defendants in civil action
`Harris Stationers, Inc., et al. v. Visa International Service Association, et al. 05-cv-
`5868 JG-JO, Defendants in civil action Dr. Roy Hyman, et al. v. Visa International
`Service Association, Inc., et al. 05-cv-5866, Defendants in civil action Performace
`Labs, Inc. v. American Express Travel Related Services Co., Inc., et al 05-cv-5869
`JG-JO, Defendants in civil action Discount Optics, Inc., et al. v. Visa U.S.A., Inc.,
`et al. 05-cv-5870 JG-JO, Defendants in civil action LDC, Inc. v. Visa U.S.A., Inc. et
`al. 05