- 091 -- /- L UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x : MDL Docket No . 1409 : M21-95 DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF FINAL APPROVAL OF PROPOSED CLASS ACTION SETTLEMENT
In re CURRENCY CONVERSION FEE ANTITRUST LITIGATION This Document Relates To : ALL ACTIONS .
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TABLE OF CONTENTS
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1. 11.
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . .......................... .......... . . . . . . . . . . . . . . . . . . . . . . . . .. .. ........ I The Legal Standard For Final Approval Of The Settlement In MDL 140 9 Does Not Permit A Speculative Inquiry Into A Hypothetical Alte rnative Settlement .... .. . . . . . . .. .. ...... .. . . . . . . . . . . . . .. .. ...................... .......... . . . . . . . .. .. . . .. . . . . . . .. .. .. . . . . . . . . . . . . .2 The Gove rnment's "Objections" Provide No Basis For Disapproving Th e Settlement . . ...................... .. . . . . . . . . . . .. ........ .... .................... . . . . . . . .. ....................... ... .. .. .. .4 A. Defendants Agree That The United States Is Not A Member O f The Settlement Classes . . .. ........ .. ................. . .. . . . . . . . . . ..... .. .... .. .. . . . . . . . . .. .. .. ........4 The Court Should Reject The Government's "Objection" T o Permitting Government Employees Or Contractors To Claim Settlement Refunds Based Upon Transactions For Which The y Were Reimbursed By The Government .. . .. . . . . . . . . . ..... . . . . . . . . . . . . . . . . . .. .. .. . . . . . . . . . . . . .4
III .
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B.
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IV . V.
The Objections To The Settlement's Provisions On Future Conduct Ar e Meritless . . . . . .. ...... .. . . .. .. . . . . . . . . .. .............. . . .. .......... .. . . . . . . . . . . . ... .. . . . . . .. .. .. ..... . . .... . ...... .. . . .. .. .8 The Fa irness, Reasonableness And Adequacy Of The Settlement In MD L 1409 Does Not Tu rn On Payments Of Atto rn eys' Fees And Expenses In Certain State FX Cases .. . . . . . . . . ........ .. . . . . .. ...... .... . . . . . . . .. .. ... . . . . . . ......... .... . . .. . . . . .. ...... .....11 Objections To The Release And Its Inclusion In The Notice Should B e Rejected .. ..... . . . . . . . .. .... ........ . . . . . . .. ...... .. .. . . .. ........ . . . . . . . . . .... . . . . . . ...... . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . 15
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VI.
VII . The Settlement Damages Class Properly Includes Cardholders Whose Agreements Contain Enforceable Arbitration Clauses . . . .. .... .. . . . . . . .. .. .............. .. . . .. .1 7 VIII . Conclusion . .. ... . . . . . . . . . . . . . ...... . . . . . . . . . . .. . . . . . . .. ...... . . . . . . . . . ..... . . . . . ... . . . . . .. .. .. ........ .. .. .............1 9
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TABLE OF AUTHORITIE S
Pag e
FEDERAL CASE S 0
Bildstein v. MasterCard Intl Inc. ,
329 F . Supp . 2d 410 (S .D.N.Y. 2004) . . . . . . . . . . . . . . . . . . . . . .. .. .. . . . . . . . . . . . . . . . . . . . . . ..... ....... . . . . . . . . . . . . . .1 1
Borcea v. Carnival Corp . ,
0 238 F .R.D. 664 (S .D. Fla . 2006) .... . ... . ........... .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... .. . . . . . . . . . . . . . .1 7
Cent. States Southeast & Southwest Areas Health & Welfare Fund v . MerckMedco Managed Care, L .L. C. ,
504 F .3d 229 (2d Cir . 2007) .. .. .. .. . . . . . . . . . . .. ........... . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . ........ . . . . . . . . . .. .........5 0
CPL, Inc. v. Fragchem, Inc. ,
512 F .3d 389 (7th Cir . 2008) . .. ............ .. . . . . . . . . .. .... . . .. . . . . . . . . .. .. . . . . . . . . . . . . . ... .. .. .. . . . . . .. . . ...... .. . 1 8
D'Amato v. Deutsche Bank,
C 235 F .3d 78 (2d Cir . 2001) . . . . . . . . . . . . . .. . . ........ .. . . . . . . ...... . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . ...... . . . . . . .2
EEOC v. New York Times,
3, INTO . 92 Civ . 6548, 1995 WL 135577 (S .D.N.Y. Mar . 24, 1995) .. . . . . . . . . . . . . . . . . ........ . . . . . 3 , 8
First Options of Chicago, Inc. v . Kaplan ,
1 514 U.S . 938 (1995) . . . . . . . . . . . . . . . . . . . ..... .. . . . . . . . . . ...... .. .. .... . . . . .. . . . . . . . . . . . . . .. ..... . . . . . . . . . ...... . . . . . . ..... 1 8
Goldenberg v. Marriott PLP Corp.,
33 F . Supp . 2d 434 (D . Md. 1998) . . . . . ..... . . . . . . . ... . . . . . .... .. .. .. .. . . . . . . . . . .. .. ... . . . . . . . . . .... . . . . . . ...... .1 7 1
Gould v. Alleco, Inc. ,
883 F .2d 281 (4th Cir. 1989) ...... . . . . . . . . . .. ... . . . . . .... . . . . .... . . .. . . . . . . . . . . . ..... .. . . . .. .. ...... . . . . ...... . . . . . . . 5
In re Agent Orange Prod . Liab. Litig.,
818 F .2d 145 (2d Cir . 1987) . . . . . . . . .... .. . . . . . .. ... .. . . . ... . . . .... .. .. . . .. . . . . . ....... . . . . . ........ . . . . ...... . . . . . ....3
In re Agent Orange Prod. Liab . Litig. ,
821 F .2d 139 (2d Cir . 1987) ........ . . .. ....... . . . . ..... . . . .. . . . ......... .. . . . . . ..... .. . . . . . ........ . . ...... .. .2, 3, 5
In re Austrian and German Bank Holocaust Litig . ,
80 F . Supp . 2d 164 (S .D.N.Y. 2000) . . . ...... . . . ... . . . .. .. . . ........ . . . . . . . .... . . . . . . .. . ... . . . . . . ... . . . . . . . . ... . . .2
In re Compact Discount Minimum Advertised Price Antitrust Litig. ,
292 F . Supp . 2d 184 (D . Me. 2003) .... . . . . .... . . . ... . . . .. . . .......... . . . . . ... .. . . . . . ........ . . ...... . . . . .... . . . ..4 In re Currency Conversion Fee Antitrust Litig. , 224 F .R.D. 555 (S .D .N.Y . 2004) . . . . . . . . .... . . .... . . . .. . . .... . . .. . . .. .... . . . . .. .. . . . . . ........ . . . . .. . . . . . . .•.. . . . .. 6
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In re Currency Conversion Fee Antitrust Litig ., 361 F . Supp . 2d 237 (S .D .N.Y. 2005) ........ .. . . ......... .. ........ .. . . .. . . . . . . . . .. .... .. .. .... . . . . . . . . . . . . . . . . .6
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In re Domestic Air Transp . Antitrust Litig. , 148 F .R.D. 297 (N.D. Ga. 1993) ................... ........ .. .. .. ................ .. ...... . . . . . . . . . . . . . . . . .. .. .. .. ...3 In re Global Crossing Sec. and ERISA Litig. , 225 F .R.D. 436 (S .D.N.Y. 2004) . . .. .. .. .. .. .. .. . . ........ .. . . ...................... .. .. . . . . . . . . . . .. .. .8, 15, 1 6 In re NASDAQ Market-Makers Antitrust Litig . , 187 F .R.D. 465 (S .D .N.Y. 1998) . . . . . . .. .. .. .. .. .. . ..... .. .. . . . . .. ............ .. .. . . . . . . .. .. .... .......... .. .. . . . . .3 In re Renaissance Holdings Ltd. Sec Litig. , No . 05 Civ . 6764, 2008 WL 236684 (S .D.N.Y . Jan. 18, 2008) .. .. . . . . . ............. .. . . . . . . . . . . . . .2 In re Union Carbide Corp. Consumer Prod. Bus. Sec. Litig. , 718 . F. Supp . 1099 (S .D.N.Y. 1989) . . . . . . . . . . . . . . . ...... .. . . . . . . .. .. .. . . . . . . . . . . . . .. ............ .. . . . . . . . . . . . . . . . 5 In re Veeco Instruments Sec. Litig. , No . 05 MDL 1695, 2007 WL 4115809 (S .D.N.Y. Nov . 7, 2007) ...... .. .. .. .. . . . . . . . . . .. ........ 3 In re Visa Check/Mastermoney Antitrust Litig . , 297 F . Supp . 2d 503 (E .D.N.Y. 2003) ... .. . . . . . . . ...... . . . . . . . . . . . . . . . . .. ........ .. .. . . . . . . . . . . . . . .. ..... .. .. .1 6 1 In re Warner Communications Sec . Litig. , 798 F .2d 35 (2d Cir. 1986) . . . . . . . . . . . . . . . . . . ..... . . . . . . . . .... . . . . . . . . . .. . . . . .. ........ . . . . . . . . . . . . . . . .. ...... . .. . . . . . . .2 In re WorldCom, Inc. Sec. Litig. , No. 02 Civ. 3288, 2004 WL 2591402 (S .D .N.Y. Nov . 12, 2004) . . . . . . . . . .. .. ..... .. . . . . . . . . . . . 1 6 In re WorldCom, Inc. Sec. Litig. , No . 02 Civ. 3288, 2005 WL 2495554 (S .D.N.Y . Oct . 11, 2005) . . .... ......... .. . . . . . . . .. ......1 6
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Martens v. Smith Barney, Inc., 181 F .R.D. 243 (S .D.N.Y. 1998) ..... . . . . . . . ... . . . . . .... . . .............. . . . . . . . . . ........... . . .. . . . . . . . ........ ..1 8 Milstein v. Werner, 57 F .R.D . 515 (S .D.N.Y. 1972) . . . . . ...... . . . . .... . . . . ... . . . . ............ . . . . . . . . . .... . .. . . . . . . . . . . . .......... . . . . . . 3
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Nienaber v . Citibank (South Dakota) N.A., No . 04-4054, 2007 WL 752297 (D .S .D. Mar . 7, 2007) .. . . . . . . . ....... . . . . . . . . . . . . . .. ........ . . . . .. .. 1 8 O'Brien v. Nat'l Prop . Analysts Partners , 739 F . Supp . 896 (S .D.N.Y. 1990) . . . . . .... . . . . ... . . . . .. . . ........ .. . . . . . . . ..... . . . . . . . . . . . .. .. .. ...... . . . . .. ....1 6
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Wal-Mart Stores, Inc. v. Visa U.S.A ., Inc. , 396 F .3d 96 (2d Cir . 2005) . . . . . . . . . . .. .. .. . . . . . . . . . . . .. . . .. .. ...... .......... .... .. . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . .1 6 M Werner v. Ohio Nat'l Life Ins . Co . , No. C-1-97-950,2007 WL 2769694 (S .D . Ohio Sept . 18, 2007) . ... . . . . . . . .. .... .. .. .. .. .... ...1 7 STATE CASE S N Branick v. Downey Savings & Loan Ass'n , 39 Cal . 4th 235 (2006) ... .. . .. . . . .... .. . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . ... . . . ............ ........ .... .. .1 2 Californians for Disability Rights v. Mervyn's LLC, 39 Cal . 4th 223 (2006) . . . . . . . ............ . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . ...... .. . . . . . . . . . . . . . . . . . . .12 Schwartz v. Visa Int'l Serv. Ass'n, 132 Cal . App . 4th 1452 (2005) , review dismissed, 56 Cal . Rptr. 3d 473 (Cal . 2007) . . . . . . . . . . . . . . ... ... . . . .... . . . . . . . . . . . . .. . . . . .. .. .. .1 1 FEDERAL RULE S Federal Rule of Civil Procedure 23(e) . ..... . .. . . .. .... .. . . . . . . . . . . . . . . . . . .. .. .. ... . . . .... . . . . . . ...................1 , 5 1,
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I.
Introduction . Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure and this Court's
Order dated September 24, 2007, Defendants) submit this memorandum of law in support of the settlement contemplated by the Settlement Agreement . The Settlement Agreement in the Consolidated Action in MDL 1409 ("MDL 1409") - providing for, inter alia, Monetary Settlement Consideration of $336 million and certain agreements regarding future conduct - is fair, reasonable, and adequate . Defendants do not intend in this submission to burden the Court with a reiteration of arguments made elsewhere in support of final approval, but write separately in advance of the final approval hearing on March 31, 2008 only to address the applicable legal standards for final approval and to respond to the following assertions/objections - none of which precludes this Court from granting final approval of the settlement in MDL 1409 : • The contention by the United States of America (the "Government") that Foreign Transactions that were either paid for or reimbursed by the Government should be excluded; • The contention that the agreements regarding future conduct are not meaningful; • The contention that the payment of attorneys' fees and expenses in certain of the State FX Cases should be prohibited and included in the Gross Settlement Fund; • The contention that the release is overbroad and its description in the notice is unclear ; and • The contention that the Settlement Damages Class improperly includes cardholders whose agreements contain enforceable arbitration clauses . These objections are meritless, and do not provide this Court with any basis for altering its findings in its Order dated November 8, 2006 granting preliminary approval of th e ' Unless otherwise noted, the capitalized words and terms used in this submission shall have the meaning ascribed to them in the Settlement Agreement dated July 20, 2006 and filed in this Court on August 15, 2006 .
settlement in MDL 1409 ("Preliminary Approval Order") . Rather, these objections seek to
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engage the Court selectively in an improper, speculative inquiry into hypothetical alternative settlement terms . Tellingly, these objections do not attempt to show that the negotiation process leading to the settlement = which was conducted at arm's length by counsel knowledgeable in complex class litigation and overseen by former U .S . Magistrate Judge Edward A . Infante - was anything but arm's length . Moreover, none of these objections provides any basis for concluding
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that the settlement is not fair, reasonable, or adequate. II . The Legal Standard for Final Approval of the Settlement in MDL 1409 Does Not Permit A Speculative Inquiry Into A Hypothetical Alternative Settlement. As this Court recently stated, at the final approval stage "[a] district court must determine whether both the negotiating process leading to a settlement and the settlement itself are fair, adequate and reasonable ." In re Renaissance Holdings Ltd. Sec. Litig., No. 05 Civ. 6764, 2008 WL 236684, at *2 (S .D.N.Y. Jan . 18, 2008) (Pauley, J .) (citing D'Amato v. Deutsche Bank, 235 F.3d 78, 85 (2d Cir. 2001)) . "Where a settlement is the `product of arm's length negotiations conducted by experienced counsel knowledgeable in complex class litigation,' the negotiation
r. enjoys a `presumption of fairness ."' Id. (quoting In re Austrian and German Bank Holocaust
Litig., 80 F. Supp . 2d 164,173-74 (S .D.N.Y. 2000)) .
The Second Circuit has provided the following general guidance to district judges in making the final approval determination : "the district judge . . . should not dictate the terms of a settlement agreement in a class action" and "`he should approve or disapprove a proposed [class action settlement] agreement as it is placed before him and should not take it upon himself to modify its terms ."' In re Agent Orange Prod. Liab . Litig., 821 F .2d 139, 144 (2d Cir . 1987)
("Agent Orange IT') (quoting In re Warner Communications Sec . Litig., 798 F.2d 35, 37 (2d Cir.
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1986))
. 2 See also In re Domestic Air Transp. Antitrust Litig., 148 F .R.D . 297, 313 (N .D. Ga.
1993) ("[T]he Court may only approve or disapprove the settlements as presented ; the Court is not free to impose any modifications on the parties") ; In re Veeco Instruments Sec . Litig., No . 05 MDL 1695, 2007 WL 4115809, at *11 (S .D.N.Y. Nov. 7, 2007) ("the Court is not to compare
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the terms of the Settlement with a hypothetical or speculative measure of a recovery that might be achieved by prosecution of the litigation to a successful conclusion") (citation omi tted). Further, a district cou rt "should not make the proponents of the agreement justify each term of settlement against a hypothetical or speculative measure of what concessions might have been gained." EEOC v. New York Times, No. 92 Civ. 6548, 1995 WL 135577, at *4 (S .D.N.Y. Mar . 1 24, 1995) (citing and quoting Milstein v. Werner, 57 F .R.D . 515, 524-25 (S.D.N.Y. 1972) (Pollack, J.)). Finally, two categories of issues are to be considered by the Court independently of the Court's consideration of the fairness, reasonableness, and adequacy of the settlement . The first category involves "[t]he issue of allocation of the Net Settlement Fund among th e
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Authorized Claimants." (Settlement Agreement § 13(c)) ; see In re NASDAQ Market-Makers Antitrust Litig., 187 F .R.D. 465, 480 (S .D.N.Y. 1998) (stating that "it is appropriate, and often prudent, in massive class actions to follow a two-stage procedure, deferring the Plan of Allocation until after final settlement approval") (citing In re Agent Orange Prod. Liab . Litig., 818 F .2d 145, 170 (2d Cir . 1987) ("Agent Orange T') . The second category involves "[t]he issues of any Fee and Expense Award, and/or award to the Representative Plaintiffs ."
2 Of course, a district court has authority to determine applications for payments of attorneys' fees and expenses, as well as certain issues involving the allocation of settlement funds . Agent Orange II, 821 F .2d at 144-45 (citations omitted) .
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(Settlement Agreement § 11(b)) ; see In re Compact Disc Minimum Advertised Price Antitrus t
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Litig., 292 F . Supp . 2d 184, 185, 190 (D . Me . 2003) .
III. The Government's "Objections" Provide No Basis For Disapproving The Settlement . A. Defendants Agree That The United States Is Not A Member Of The Settlement Classe s The Government states that it "does not agree to its inclusion as a class member in this Rule 23 litigation ." (Letter from Sean C . Cenawood and Adam J . Schwartz, United States Department of Justice, to the Court ("DOJ Letter"), dated February 14, 2008, at 1 .) In addition, the Government asserts that it was not properly served and that class counsel is not authorized to represent the interests of the Government and cannot bind the Government . (Id .) Defendants agree that the Government is not a Member of the Settlement Classes . Whether the Government was properly served or whether class counsel are authorized to represent the Government are
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therefore moot points . B.
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The Court Should Reject The Government's "Objection" To Permitting Government Employees Or Contractors To Claim Settlement Refunds Based Upon Transactions For Which They Were Reimbursed By The Government Notwithstanding the Government' s position that it is not a Member of th e
Settlement Classes, it states that "[n]eve rtheless, the proposed settlement affects the ability of the Government to recover damages for injuries it may have suffered as a result of the alleged activity ." (Id. at 2.) Specifically, the Govern ment complains that "the suggested settlement would preclude [it] from recovering excess foreign exchange fees paid in instances where Government employees or contractors were reimbursed for expenses paid with their respective personal or business payment cards." (1d.) The Government then recommends "that the Cou rt reject the proposed agreement unless it is revised to exclude any claims for refunds based on
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foreign exchange fees incurred on transactions that were either paid for or reimbursed by the Government ." (Id.) As a threshold matter, and as the Government itself recognizes, since it is not a Member of the Settlement Classes, it has no standing to assert an "objection ." It is well-settled that only members of a class can object to a settlement . See Fed. R. Civ. P. 23(e)(4)(A) ("Any
class member may object to a proposed settlement . . . that requires court approval under Rule
23(e)(1)(A) ." (emphasis added)) ; Cent. States Southeast & Southwest Areas Health & Welfare
Fund v. Merck-Medco Managed Care, L.L.C., 504 F .3d 229, 244 (2d Cir . 2007) (`Because [the
Government] is not a class member, it does not have an affected interest in the class . . . so as to be able to assert its objections . . . ."); see also Gould v. Alleco, Inc ., 883 F.2d 281, 284 (4th Cir. 1989) ("The plain language of Rule 23(e) clearly contemplates allowing only class members to
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object to settlement proposals ."); In re Union Carbide Corp . Consumer Prod. Bus . Sec. Litig., 718 . F. Supp . 1099, 1108 (S .D.N.Y. 1989) . Instead, the Government seeks to comment on some aspect of the settlement . However, the Government fails to explain how "the Court's order dated September 24, 2007, the Class Action Fairness Act of 2005, 28 U .S .C . §§ 1711-1715, [or] the interests of the Government under 28 U .S.C . § 517," permit it not only to make such comments, but then to ask this Court impermissibly to modify the settlement . See Agent Orange II, 821 F.2d at 144 ("the district judge . . . should approve or disapprove a proposed [class action settlement] agreement as it is placed before him and should not take it upon himself to modify its teens") (quotation and internal citations omitted) . Having stated the interest of the United States, i .e., that it is not a part of the settlement, the Government provides no support that it has standing to seek the modifications i t
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now asks this Co urt to make to the settlement. Thus, the Gov ernment's "objection" should be
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rejected on this threshold basis . In any event, the Government's "objection" provides no basis for disapproval of the settlement and should be rejected on this ground as well . Contrary to the Government's asse rtion, the decision to structure the settlement to permit payments to the cardholder is not "arbitrary ." Class membership in this action has always been predicated on the cardholder
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relationship . Thus, the Consolidated Amended Class Action Complaint filed on January 22, 2002 defines the Damages Class as "all Visa, MasterCard and Diners Club general purpose cardholders who used cards issued by any of the issuing bank defendants and/or Diners Club
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during the Damages Period, and were assessed a currency conversion fee or currency conversion surcharge for using such cards to purchase goods and/or services in foreign countries ." (Consolidated Amended Class Action Complaint at' 139.) Both the Court 's initial and modified
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class certification orders defined the Damages Class in terms of specified "cardholders" who "vvere assessed" the "fees" in question . See In re Currency Conversion Fee Antitrust Litig ., 224 F .R.D . 555, 570-71 (S .D.N.Y. 2004) ; In re Currency Conversion Fee Antitrust Litig,., 361 F . Supp. 2d 237, 267 (S .D.N.Y. 2005) . Likewise, the Settlement Agreement defines the Settlement Damages Class as "Persons who or which were holders of United States-issued MasterCard- or Vis a-branded Credit or Debit Cards or United States-issued Diners Club-branded Credit Cards and made a Foreign Transaction from February 1, 1996 to the date of Preliminary Approval ." (Settlement Agreement § 2(pp) .) This definition re flects the practical reality that neither Defendants nor the Claims Administrator would have any way of identifying Settlement Damages Class Members for notice purposes or for ve ri fying refund eligibility if refunds did not belong to cardholders . Thus, far
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from being "arbitrary," as the Government claims, the settlement terms defining class
F]
membership and refund eligibility in terms of cardholder status are both practical and rooted in how this case has been structured from the beginning . The Government further asserts that to provide refunds to Government employees
f
or contractors who were reimbursed by the Government "creates a windfall" for such cardholders because "[c]learly any recovery for improper foreign exchange fees reimbursed by
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the Government should accrue to the benefit of the Government ."3 (DOJ Letter at 2 .) It goes on to say that the Government should be spared the burden of pursuing "subrogation claims" against such Settlement Damages Class Members . The Government provides no authority to suggest
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that it is the legal owner of such claims. Moreover, because the Government's "objection" can relate only to claims based on transactions made on the employee's personal card or the contractor's own business card, the Government, like any other entity that reimbursed
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transactions made by its employees or contractors, is free to issue a demand to such employees or contractors that the refunds be paid over to it. That is an issue between the Government and
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its employees or contractors . For these reasons, even if the Court decides to address the "objections" lodged by the Government, it should reject the Government's contention that Foreign Transactions that were either paid for or reimbursed by the Government should be excluded from the settlement.
3 Although the Government states that it is not a Member of the Settlement Classes, and we agree, in any event, the FAQs on the settlement website are clear that Government employees may not submit claims on Government agency cards without Government authorization : "You may file a claim for charges on government agency cards only if you have been authorized b y the government agency to do so ." See http ://www .ccfsettlement .com/FAQs/#id28 ; see also Revised Class and Settlement Notice Plan, Ex . 5 thereto, Refund Option 3 at ¶ 5 . Thus, the information disseminated in connection with the settlement diminishes the opportunity complained of by the Government for the creation of any "windfall" in favor of its employees .
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IV.
The Objections To The Settlement's Provisions On Future Conduct Are Meritless. Only four submissions, representing six Settlement Injunctive Class Members ,
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object to the parties' agreements as to future conduct . Given that the Settlement Injunctive Class numbers at least in the tens of millions, the low number of objections evidences the fairness of
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the Settlement Agreement's future conduct provisions . See In re Global Crossing Sec. and ERISA Litig., 225 F .R.D . 436, 457 (S .D.N.Y. 2004) (noting that the "vanishingly small" number of objections as a percentage of total class size "strongly support[s] settlement approval") . Further, these submissions inappropriately seek to compel the Defendants to justify each term reached as part of the overall compromise . See EEOC, 1995 WL 135577, at *4 . Tellingly, they do not show that the settlement is not fair, reasonable, and adequate, and they can be rejected on this basis alone . In any event, none of the objections withstands individualized scrutiny . Objectors
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Schrank and Bishop attack as "meaningless" or "illusory" the agreement in paragraph 4(a) that for five years defendants shall not violate the antitrust laws . (See Objections to Proposed Class Action Settlement Agreement of Gilbert Schrank ("Schrank Obj ."), dated Feb . 13, 2008, at 6 ; Objections to Class Action Settlement of Jessica Bishop ("Bishop Obj ."), dated Feb . 13, 2008, at 2 .) Both objectors misconstrue the purpose and effect of this paragraph, which provides only the procedural vehicle for addressing an antitrust violation relating to defendants' foreign transaction fees. Specifically, any such violation within the five-year period would be subject to this Court's exclusive jurisdiction pursuant to paragraph 18 of the [Proposed] Final Judgment and Order of Dismissal, and paragraph 4(a) is thus anything but "meaningless ." With Schrank, Objector Salazar contends that the Bank Defendants should be bound by the requirements of paragraph 4(b)(i) (regarding bank disclosures in credit and debit card agreements, monthly statements and solicitations) even in the event that a given requiremen t
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becomes "prohibited by law ." (Objection of Rene Salazar to Proposed Class Settlement and P Notice of Intention to Appear ("Salazar Obj ."), dated Feb. 13, 2008, at 6 .) However, these types of disclosures are heavily regulated under certain federal laws, and, in fact, each disclosure required by paragraph 4(b)(i) is keyed to particular provisions of those federal laws . Therefore, 0 the supposedly "exculpatory" aspect of paragraph 4(b)(i) does no more than appropriately ensure that the Bank Defendants comply with any new, changed or additional requirements of this 0 comprehensive regulatory structure . Schrank also attacks paragraph 4(d) as "a blatantly bank-friendly provision" that allows foreign transaction fees to "be created in any manner defendants choose ." (Schrank Obj . at 6 .) Schrank once again misconstrues a provision of the Settlement Agreement . Paragraph 4(d) provides, For avoidance of any doubt, nothing in this section 4, or elsewhere in this Settlement Agreement, limits Master Card, Visa, or any Bank Defendant in any way in its Foreign Transaction pricing, including, without limitation, the application, establishment, selection or calculation of any Foreign Transaction Fees, Base Exchange Amounts or component of either. This provision assures what this antitrust suit and all other antitrust suits seek to do - allow the market to set prices . Although the settlement imposes certain disclosure requirements, it does not impose substantive restrictions on price . Rather, it allows the market to set Foreig n Transaction pricing subject to required disclosures .4
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4 In their initial submission to the Court in connection with final approval, Plaintiffs erroneously stated that "the Settlement requires the Bank and Network Defendants to disclose clearly to cardholders any foreign transaction fees ." (Plaintiffs' Memorandum of Points and Authorities In Support Of Motion For Final Approval of Class Action Settlement ("Pl . Mem.' ), dated Jan. 29, 2008, at 1, 20 (emphasis added) .) The agreements regarding future conduct impose cardholder disclosure obligations only on the Bank Defendants because only they deal with cardholders . Paragraph 4(c) of the Settlement Agreement provides that "MasterCard an d (continued on next page)
9
Schrank articulates no reason why disclosure practices post-settlement would be inadequate, instead launching an uninformed attack against conversion practices such as "netting out." (Schrank Obj . at 7.) Settlement Classes Counsel spent many years conducting discovery in this case, delving into the manner in which the Network Defendants convert currency, including
i
the ubiquitous trading practice known as "netting out ." The "netting out" process simply refers to the practice of offsetting opposing currency flows so that the currency converter needs to resort to international trading banks only for the portion of the converter's currency needs that cannot be "netted out ." It is a highly efficient practice and does not render the currency exchange "illusory" as Schrank contends . (1d. )5
1
Schrank also suggests that it should be illegal to impose a charge for international transactions made in U .S. dollars. (Id.) However, so long as any such fees are disclosed and set by a free market, there is no reason why that should be true .
i
i
(continued from prior page) Visa each agrees that it will not engage in Embedding with respect to issuing Members in the United States ." And paragraph 4(d) of the Settlement Agreement provides that "[i]f MasterCard or Visa materially modifies its current practices with regard to calculating Base Exchange Amounts, and such modified practices include the systematic use for that purpose of exchange rates selected by it that are outside a range of wholesale or government-mandated/managed exchange rates, then it will require its issuing members in the United States to change their current Base Exchange Amount disclosures to conform with its modified practices with regard to calculating Base Exchange Amounts ." (Emphasis added .) 5 To the extent Schrank's attack on the processing of Foreign Transactions encompasses alleged inadequacies of the Settlement Agreement with respect to Base Exchange Amounts, these too were the subject of discovery . In their initial submission to the Court in connection with final approval, Plaintiffs ambiguously stated that this action "revolved around the foreign transaction fees charged by and collectively set by the banks and networks, not the currency conversion rates ." (Pl . Mem. at 21 (emphasis added) .) However, contentions regarding the Base Exchange Amounts were the subject of full document and deposition discovery in this case (and the Schwartz State FX Case), and were included in Plaintiffs' responses to contention interrogatories propounded by Defendants in this case . Also, the fact that practices regarding Base Exchange Amounts were fully vetted by Settlement Classes Counsel was previously discussed with the Court during the September 11, 2006 hearing on preliminary settlement approval. (See Transcript of Oral Argument, at 79 :19-21 .)
E
10
11
Finally, Schrank falsely claims that "the Schwartz decision is being totally eviscerated ." (Id. at 8 .) First, the "Schwartz decision" involved a different case from MDL 1409 . Second, the "Schwartz decision" was reversed on appeal . See Schwartz v. Visa Int'l Serv. Assn, 132 Cal . App . 4th 1452 (2005), review dismissed, 56 Cal . Rptr . 3d 473 (Cal . 2007) . And as this
0
Court held, the "Schwartz decision" had no precedential value while on appeal (see Bildstein v. MasterCard Intl Inc., 329 F . Supp . 2d 410, 415 n .I (S .D .N.Y. 2004)) - a holding that is
0
buttressed by the reversal on appeal . Third, the Settlement Agreement addresses the "embedding" issue that was discussed in the "Schwartz decision" (see Settlement Agreement § 4(b)(iii)), as well as requiring additional disclosures by the Bank Defendants to cardholders (see id. § 4(b)(i-ii)) . For all of these reasons, the objections about the agreements regarding future conduct should be rejected.
0
V.
The Fairness, Reasonableness And Adequacy Of The Settlement In MDL 1409 Does Not Turn On Payments Of Attorneys' Fees And Expenses In Certain State FX Cases . Several objectors challenge payments of atto rneys' fees and expenses (i) of
i
$3 .557 million by MasterCard to the Ten State FX Case Counsel in the Ten State FX Cases and to plaintiff's counsel in Gaffigan v. MasterCard International, Inc., No. 042-07768 (St . Louis Cty., Mo .) (the "Gaffigan State FX Case") (collectively, the "MasterCard State FX Case Payment") and (ii) of $32 million by MasterCard and Visa to the Schwartz State FX Case Counsel in the Schwa rtz State FX Case (collectively, the "MasterCard and Visa Schwartz State FX Case Payment") . As Judge Infante stated, "[a]t the time the parties were negotiating MDL 1409, there were also a number of state cou rt actions pending around the country relating to foreign credit and debit transactions" and "[d]efendants understandably wanted to resolve all of these
11
actions ." (Declaration of Hon . Edward A. Infante ("Infante Decl ."), dated Jan. 28, 2008, at ¶ 6 .) As part of a global resolution, Defendants bargained for Releases in the settlement in MDL 1409 that "[t]he Parties believe will have the effect of, inter alia, extinguishing the Claims that are the subject of the State FX Cases ." (Settlement Agreement § 15(b).) MasterCard also reache d
0
settlement agreements in the Ten State FX Cases and the Gaffigan State FX Case . In addition, MasterCard and Visa reached a settlement agreement in the Schwartz State FX Case6, as well as
0
stipulations to resolve the Other California State FX Cases . The existence of the settlement agreements in the Ten State FX Cases and the Gaffigan State FX Case (including the MasterCard State FX Case Payment), as well as the actual
1
Schwartz State FX Case Agreement (including the MasterCard and Visa Schwartz State FX Case Payment) and the Stipulations in the Other California State FX Cases, were disclosed to members of the Settlement Classes in numerous documents in connection with the approval of the settlement in MDL 1409 . These disclosures were made in, among other documents, the Settlement Agreement, the Notices, and the settlement website . (See, e.g., Settlement
I
Agreement, Recitals at 4-5, §§ 2(dd), 2(ee), 2(nn), 2(oo), 2(uu), 2(vv), 2(ww), 3(e), I I(a), 15(b), Exs. A-B & J ; Class and Settlement Notice Plan, Exs . 1-3 (Notice of Pendency and Settlement o f Class Action, Agency/Company Notice, and Publication Notice) ; Order dated September 24,
t
i
6 Objectors incorrectly suggest that the Schwartz State FX Case was already concluded at the time the settlement was reached . (See Schrank Obj . at 3 .) Although the trial court decision in the Schwartz State FX Case was reversed on September 28, 2005, the California Supreme Cou rt granted review on a "grant and hold" basis on December 14, 2005, pending the resolution of several other pending cases that addressed standing to b ring claims of the type brought in the Schwartz State FX Case . The California Supreme Court did not decide those cases - Branick v. Downey Savings & Loan Ass'n, 39 Cal. 4th 235 (2006) and Californians for Disability Rights v. Mervyn's LLC, 39 Cal . 4th 223 (2006) - until after the se tt lement in MDL 1409 was negotiated and signed on July 20, 2006 .
12
2007, Exs . B-D (Claim Forms, including Notice of Pendency and Settlement of Class Action) ;
R
Revised Class and Settlement Notice Plan, Ex. 4 (Revised Publication Notice) . ) Three objectors nevertheless assert that the MasterCard State FX Case Payment and the MasterCard and Visa Schwartz State FX Case Payment should be prohibited and
0
included in the Gross Settlement Fund as additional Monetary Settlement Consideration to the $336 million available to Authorized Claimants . See Bernd Bildstein's Memorandum in
0
Opposition to Final Approval of the Settlement, dated Feb . 13, 2008, at 6 n.5 (stating that the MasterCard State FX Case Payment should be "disallowed and the amounts added to the gross amount payable to the class at bar") ; id. at 2 (stating that the MasterCard and Visa Schwartz State FX Case Payment "should be part of the class settlement") ; see also Objection to Class Action Settlement, and Request for Attorney's Fees and Notice of Intention to Appear of Class
I
Members David Murray, Marion Murray, and Joel Shapiro ("Murray Obj ."), dated Feb. 4, 2008, at 9 ("If Defendants had not carved out $35 .5 million . . . . it is certain that those monies would have been available to compensate class members, and the settlement fund would total closer to $370 million ."); Objection and Objector James Wilson's Objection in Opposition to the Court Approving Attorneys' Fees in Excess of $30 Million, dated Feb . 11, 2008, at 6 ("This court cannot approve attorneys' fees in the state court actions .,,).7
I
7 Other objectors ask this Court to consider the MasterCard State FX Case Payment and the MasterCard and Visa Schwartz State FX Case Payment in connection with Co-Lead Counsel's Motion for Award of Attorneys' Fees and Expenses filed on January 30, 2008 . See, e .g., Murray Obj. at 9 ("The payment of attorney's fees to counsel in other cases does in fact reduce the amount of settlement funds available to class members, and should be included in the calculation of attorney's fees ."); Objection and Notice of Intent to Appear of Class Members Mark Schulte and William Zorn, dated Feb . 13, 2008, at 1 (stating that "the $35 .5 million side deal . . . should be included in the fund for purposes of determining counsel's fee, since that money, along with the gross settlement fund, constitutes the total amount that Defendants are willing to pay to buy their peace").
13
This Court has already made several preliminary findings as to the fairness,
0
reasonableness, and adequacy of the settlement in MDL 1409 . They are: • The settlement in MDL 1409 features a "sizeable monetary award" of $336 million. (Preliminary Approval Order at 9-10 .)
0
• The settlement in MDL 1409 contains several agreements related to the Defendants' conduct going forward . (See id. at 3-4, 10 .) • The settlement in MDL 1409 was the product of arm's length negotiations conducted by experienced counsel with knowledge in complex class action litigation. (See id . at 9.) • The settlement in MDL 1409 was overseen by the Hon . Edward A . Infante. (See id. ("Judge Infante's participation in the negotiations substantiates the parties' claim that the negotiations took place at arm's length .").) None of the aforementioned objections contends that the Monetary Settlement . Consideration of $336 million is unfair, unreasonable, or inadequate absent the MasterCard State FX Case Payment or the MasterCard and Visa Schwartz State FX Case Payment . Indeed,
0
I
counsel for Bernd Bildstein conceded at the preliminary approval hearing that the Monetary Settlement Consideration of $336 million is "large" and "may very well be good ." (See Transcript of Oral Argument, dated Sept . 11, 2006, at 46 :10-14 .) And neither Bernd Bildstein nor any other objector has provided this Court with any factual basis for it to reject its preliminary finding that Monetary Settlement Consideration of $336 million "falls within a reasonable range ." (Preliminary Approval Order at 10 .) In sum, the Monetary Settlement Consideration of $336 million was the product of an arm's length negotiation process, which was overseen by Judge Infante, and a compromise by the parties, which were represented by experienced counsel knowledgeable in complex class action litigation . These objections do not suggest otherwise or disturb the Court's preliminary findings that the settlement is fair, reasonable, and adequate .
14
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VI .
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Objections To The Release And Its Inclusion In The Notice Should Be Rejected . Three Settlement Damages Class Members also object to the breadth of the
release or its description in the notice - or approximately one objection for every ten million notices sent . (See Preliminary Objections to Class Action Settlement and Request for Attorney's
b
Fees of Kathleen and William McWhorter, and Michael J . Rinis, dated Feb . 14, 2008, at 4; Salazar Obj . at 7 ; Bishop Obj . at 5.) This exceedingly small number of objections to the release
0
weighs heavily in favor of its approval . See Global Crossing, 225 F .R.D. at 457 (noting that the "vanishingly small" number of objections as a percentage of the total class size "strongly support[s] settlement approval") . Moreover, none of these objectors identifies a specific problem with the language of the release or notice. The terms of the release, and the summary of the release in the notice, were each
1
carefully crafted and negotiated at length between defendants' and plaintiffs' counsel, with the assistance of the Hon . Edward A . Infante acting as mediator. (See Settlement Agreement § 15(a) (text of release) ; id. §§ 2(p), 2 (bb), 2(kk), 2(11) (definitions of certain key terms in release) ;
I
Order dated September 24, 2007, Exs . B-D (Claim Forms, including summary of release in Notice of Pendency and Settlement of Class Action) .) The release is the primary inducement for the defendants to enter into the settlement ; it is, in essence, what they are buying with the
1
substantial $336 million payment and going-forward agreements they have agreed to make . Although the release is broad, there is a very good reason for this : Defendants are not interested
i
in settling this case unless they are relieved from liability under not only the specific legal theories plaintiffs initially alleged, but also any other theories that could be raised . Otherwise, any settlement could prove illusory, with the possibility of class members filing new claims based on the same or related matters, but dressed up under new legal claims .
15
Recognizing these considerations, courts - including the Second Circuit - have
0
routinely approved class action settlements that include releases similar in breadth to those here, especially where the release is described in the notice to class members . See Wal-Mart Stores, Inc. v. Visa U.S.A ., Inc., 396 F.3d 96, 106-08, 116 (2d Cir. 2005) (allowing broad release of
0
claims that were brought or "could have been" brought in the litigation) ; In re WorldCom, Inc. Sec. Litig., No. 02 Civ . 3288, 2004 WL 2591402, at *12 (S .D.N.Y. Nov. 12, 2004) ("in order to achieve a comprehensive settlement that would prevent re-litigation of settled questions at the core of a class action, a court may permit the release of a claim based on the identical factual predicate as that underlying the claims in the settled class action even though the claim was not presented and might not have been presentable in the class action") ; Global Crossing, 225 F.R.D. at 458 (S .D.N.Y . 2004) (same) . The Second Circuit, for example, has explained that "[b]road class action settlements are common, since defendants . . . would otherwise face nearly limitless
1
liability from related lawsuits in jurisdictions throughout the country ." Wal-Mart, 396 F.3d at 106 (internal citations omitted) .
I
Moreover, the notice's description of the release is plainly sufficient ; it quotes the key terms of the release, although in abbreviated fashion, for ease of reading . Numerous courts have upheld notices as sufficiently clear where, as here, they include the relevant language from the release. In re WorldCom, Inc. Sec. Litig., No. 02 Civ. 3288, 2005 WL 2495554, at *4 (S .D.N.Y. Oct . 11, 2005) (finding that language of broad release should have put class members on notice "that they needed to opt out of the class if they wished to pursue their claims separately") ; In re Visa Check/Mastermoney Antitrust Litig., 297 F. Supp. 2d 503, 516 (E .D.N.Y . 2003) ("The notice of the scope of the releases was adequate," where it quoted the release) ; O'Brien v. Nat'l Prop . Analysts Partners, 739 F.Supp. 896, 902 (S.D.N.Y. 1990) (inclusion of release language i n
16
notice sufficient; due process does not require further explanation of the effects of the release) ;
R
see also Borcea v . Carnival Corp ., 238 F.R.D. 664, 677 (S .D. Fla. 2006) (notice sufficient where the information provided therein was "only an abbreviated summary of the proposed settlement and release") ; Goldenberg v. Marriott PLP Corp ., 33 F . Supp. 2d 434, 437-38 (D. Md. 1998) (referencing approval of proposed class action settlement and noting that the "terms of the release were summarized in the Notice and set forth in full in the Proof of Claim provided to
C
each class member") ; Wemer v. Ohio Nat'l Life Ins. Co., No . C-1-97-950, 2007 WL 2769694, at *4-*6 (S.D . Ohio Sept . 18, 2007) (enforcing terms of release in settlement agreement where the class notice "contained a description of the Class Release and made clear that the Settlement
1
covers `most known and unknown claims"') . Of course, if the three objectors had any question about the meaning of the release, they could have read the full text of the release (including its defined terms) in the
I
Settlement Agreement on the settlement website, or contacted class counsel, whom this Court appointed to represent them, as encouraged by the notice itself. See, e.g., Borcea, 238 F .R.D . at
1
677 (notice sufficient where it informed class members how to obtain additional information) . These objections to the release and its description in the notice should accordingly be rejected, and the scope of the release upheld . Failure to do so would be contrary to the
I
extensive authority above, and would undermine the carefully-negotiated scope of the consideration for defendants to enter the settlement . VII. The Settlement Damages Class Properly Includes Cardholders Whose Agreements Contain Enforceable Arbitration Clauses . Objector Ashley Shepherd argues that the Court may not certify a settlement damages class that includes "cardholders whose agreements contained arbitration clauses" because arbitration rights are assertedly "substantive ." (Objection of Ashley Shepherd to Class
17
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Settlement, dated Feb . 15, 2008, at 2, 3.) Arbitration rights are a "matter of contract ." First
P
Options of Chicago, Inc . v. Kaplan, 514 U.S. 938, 943 (1995). Moreover, arbitration clauses are not self-executing ; they require one party to the agreement to assert the right to arbitrate before they become effective. And it is well-settled that a litigant may voluntarily waive its right to
M
arbitrate a dispute . See CPL, Inc. v. Fragchem, Inc., 512 F.3d 389, 392-93 (7th Cir. 2008) . Indeed, courts often approve class action settlements in which one or more defendants waives its right to arbitrate the dispute solely for settlement purposes . See, e.g., Nienaber v. Citibank (South Dakota) N.A., No . 04-4054, 2007 WL 752297, at *3 (D .S.D . Mar. 7, 2007) ; see also Martens v. Smith Barney, Inc., 181 F .R .D. 243, 252 (S .D.N.Y. 1998) (parties through settlement agreement "contract[ed] around" arbitration provision which could have been "existing contractual bar to subject matter jurisdiction") . Here, Defendants explicitly agree in the Settlement Agreement to waive their
I
applicable arbitration rights solely for purposes of this settlement .8 (See Settlement Agreement § 6(d); see also Preliminary Approval Order 15 .) In addition, any Settlement Damages Class Member who has an arbitration clause in her cardmember agreement received notice of this settlement and had an opportunity to exercise her arbitration right by opting out and initiating an arbitration in an appropriate forum . Further, to the extent the objection asks this Court to
1
exclude from the Settlement Damages Class cardholders with enforceable arbitration provisions, the objection improperly asks this Court to modify the settlement. In sum, this objection should be rejected because it is contrary to the applicabl e case law . 8 Defendants have not waived their arbitration rights as to any member of the Settlement Damages Class who opts out, nor have they waived those rights in the unlikely event the Court were to deny final approval of the settlement . (See Settlement Agreement § 6(d) ; see also Preliminary Approval Order 1 5 .)
18
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VIII. D
Conclusion. None of the objections demonstrates that the settlement in MDL 1409 is not fair,
reasonable, and adequate . The Court should reject these objections and Defendants respectfully
r
request this Court to enter the [Proposed] Final Judgment and Order of Dismissal .
DATED : March 10, 2008 0
h~k O Witu CFAS) P>
Mark P . Ladner, Esq . William R . Wade-Gery, Esq . MORRISON & FOERSTER LLP 1290 Avenue of the Americas New York, NY 10104-006 0 Tel: 212-468-8000 Fax: 212-468-7900 mladner a;m.ofo.com wwade- gerryCa, mofo.com. Counsel for Defendants Bank of America Corporation, Bank of America N.A. (LISA), and Bank ofAmerica, N.A.
1
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DATED: March 10, 200 8
1
By:
(3~6ex_6 d6n CFAs .)
Charles E . Buffon, Esq. Robert D. Wick, Esq. COVINGTON & BURLING L .L.P. 1201 Pennsylvania Avenue NW Washington, DC 2000 4 Tel: 202-662-6000 Fax: 202-662-6291 cbuffon6 cov.com rwicko?cov.com
19
Peter E . Greene, Esq . Cyrus Amir- okri, Esq. Peter S . Julian, Esq . S DEN, ARPS, SLATE, EAGHE & FLOM LLP
Four Time Square New York, 10036 Tel : 212 -735-3000 Fax: 212 -735-2000
eter. areg2e@ sk adden.com oyrus .amir-rnokri(a?skadden .co peter .° uull i_an,@a ask adden .com
Counsel, for Defendants JP Morgan Chase & Co., Chase Bank, USA, .A., and the JP organ Chase Bank, N.A .
.
DATED: March 10, 2008
By:. Charles W . Douglas, Esq. David F . Graharn, Esq . 'T'heodore R . Scarborough, Esq . Eric H . Grush, Esq . S LEY AUSTIN LLP One Sou Dearborn Street Chicago, Illinois 60603 Tel : 312-853-7000 Fax: 312-853-7036 cdouglas0sidlev.com dgrahania,sidley.com tsc arborou gh(a-lsidley.corn eMsh sildey com
C t-.- tt S -)
Counsel for Defendants Citigroup Inc., Citibank (South Dakota), N.A., Universal Bank, N.A ., Universal Financial Corp ., and Citicorp Diners Club Inc.
20
DATED: March 10, 2008
By:
66m
yw ^
1 1.F , ,4-,S /
r
I
George A. Cumming, Esq. MORGAN, LEWIS & BOCKIUS LLP One Market, Spear Street Tower San Francisco, CA 94105 Tel: 415-442-1000 Fax : 415-442-1001 gcummingr&morganl ewis. com Harry T . Robins, Esq . MORGAN, LEWIS & BOCKIUS LLP 101 Park Avenue New York, NY 10178-0060 Tel : 212-309-6000 Fax: 212-309-6001 hrobins@morganlewis .com
1
Counsel for Defendants HSBC Finance Corporation (f7k/a Household International, Inc.) and HSBC Bank Nevada, N.A. (f/kla Household Bank (SB), N.A) DATED : March 10, 2008
i
By: r~~~l~ cFg-s)
Christopher R. Lipsett, Esq . WILMER CUTLER PICKERING HALE AND DORR LLP 399 Park Avenue New York, NY 10022 Tel: 212-230-8800 Fax: 212-230-8888 chris .lipsett ,wilmerhale.com Daniel H . Squire, Esq . WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006 Tel: 202-663-6000 Fax : 202-663-636 3 dani el. s quire(a~wi lm erh al e. cam Counsel for Defendants MBNA America Bank, N.A . and MBNA America (Delaware), N.A.
1
21
DATED : March 10, 2008
By:
6
Alan S . Kaplinsky, Esq . Edward D . Rogers, Esq. Mark S. Stewart, Esq. BALLARD SPAHR ANDREWS & INGERSOLL, LL P 1735 Market Street, 51 st Floor Philadelphia, PA 19103-7599 Tel: 215-665-850 0 Fax: 215-864-8999 kaplinskvCa ballardspahr .com rogersCa ballardspahr.com stewartm.@ballardspahr.com Counsel for Defendants Washington Mutual Inc., Washington Mutual Bank, and New American Capital Inc.
DATED : March 10, 2008
By:. Jay N. Fastow DICKSTEIN SHAPIRO LLP 1177 Avenue of the Americas New York, NY 10036 Tel : 212-277-6767 Fax: 917-591-7087 FastowJa,,dicksteinshMiro .com Bruce A. Colbath, Esq. Fiona A . Schaeffer, Esq . WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 Tel: 212-310-8000 Fax: 212-310-8007 bruce.colbathrweil .com fiona.schaeffer c),weil .com Counsel for Defendants MasterCard International Incorporated, MasterCard International, LLC, and MasterCard Incorporated
22
I
0
DATED : March 10, 2008
By:
611-1 Q,Vj
~Os n.LVY V41-1 (r, #' E 00
1
M . Laurence Popofsky, Esq. Brian P. Brosnahan, Esq . HELLER EHRMAN LLP 333 Bush Street San Francisco, CA 94104-2878 Tel: 415-772-6000 Fax : 415-772-6268 larr v.p opofsky_nh ellerehrm an.com bri an. bro sn ab a n(ahel lerehrman. com Robert J . Vizas, Esq . ARNOLD & PORTER LLP 90 New Montgomery Street Suite 600 San Francisco, CA 94105 Tel: 415-356-300 1 Fax : 415-356-3099 Bob . Vizas(a,apo rt er.com Counsel for Defendant Visa U. S.A. Inc. -- and--
0
1
I
1
DATED : March 10, 2008
By :
ka4~
Cr A, S )
Randall A . Hack, Esq. Edward C . Fitzpatrick, Esq . Timothy M. Maggio, Esq . LORD, BISSELL & BROOK. LLP 111 South Wacker Drive Chicago, IL 60606-4410 Tel: 312-443-0700 Fax: 312-443-0336 rhack(a',lordbissell .com efitzpatrick( alordbissell .com tmaggio a;lordbissell .com Counsel for Defendant Visa International Service Associatio n
23
0
0
CERTIFICATE OF SERVICE I hereby certify that I am over the age of 18 years and not a party to this action, and that on March 10, 2008,1 caused a true and correct copy of the foregoing
0
Defendants' Memorandum of Law in Support of Final Approval of Proposed Class Action Settlement to be served as follows : Plaintiffs' Counsel, by mail, at the following addresses :
0
Lead Counsel for Plaintiff's Merrill G . Davidoff Ruthanne Gordo n BERGER & MONTAGUE, P .C. 1622 Locust Street Philadelphia, PA 19103 Bonny E . Sweeney Christopher Burke COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 655 West Broadway, Ste. 190 0 San Diego, CA 9210 1 Counsel for plaintiff (Objector) Bernd Bildstei n
1
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Irving Bizar BALLON, STOLL, BADER, & NADLER P .C. 1450 Broadway, 14th Floor
New York, NY 10018-226 8
P
Counsel for plaintiff (Objector) Gilbert Schran k Sheldon V . Burman, Esq . LAW OFFICES OF SHELDON V . BURMAN 110 E . 59th Stree t
New York, NY 10022
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Counsel for "Objector" United States ofAmerica
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Michael J . Garcia, United States Attorney Sean C . Cenawood, Assistant United States Attorney U .S. Depa rtment of Justice United States Attorney Southern Distri ct of New York 86 Chambers Street, 3rd Floor New York, NY 10007 Counsel for "Objector" United States ofAmerica
0
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Adam J . Schwartz, Trial Attorney Commercial Litigation Branch Civil Division U.S . Department of Justice Washington, DC 20530 Counsel for Objector Jessica Bishop Robert W . Bishop BISHOP & ASSOCIATES, PSC 6520 Glenridge Park, Suite 6 Louisville, KY 40222 Counsel to Objector Ashley Shepherd
1
Angela M . Dorrell PLEWS SHADLEY, RACHER & BRAUN LLP 1346 N. Delaware Street Indianapolis, IN 46202-241 5 Alani Golanski LAW OFFICES OF ALANI GOLANSKI 25 Washington Street, Suite 547 Brooklyn, NY 1120 1 Counsel for Objectors Joel Shapiro, David T. Murray and Marion R. Murray John J. Pentz CLASS ACTION FAIRNESS GROUP 2 Clock Tower Place, Suite 260G Maynard, MA 01754
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2
Counsel for Objector Rene Salaza r
0
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Robert J. Patterson WATTS LAW FIRM Tower II Building, 14th Floor 555 North Carancahua, Suite 1400 Corpus Christi, TX 7847 8 Counsel for Objectors William McWhorter, Kathleen McWhorter and Michael J Rini s N. Albert Bacharach, Jr., P.A. 115 Northeast 6th Avenue Gainesville, FL 3260 1 Paul S . Rothstein 626 N.E. First Street Gainesville, FL 32601 Counsel for Objectors Mark Schulte and William Zorn J . Scott Kessinger 7304 Michigan Avenue St. Louis, MO 6311 1 Counselfor Objector James W. Wilson Douglas A . Cole STEM & COL E 571 Milford-Warren Glen Road Milford, NJ 0884 8
0
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3
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And to Defense Counsel, by electronic mail, at the following addresses : Counsel for Defendants Bank of America Corp ., and Bank of America, N.A . (USA) Mark P . Ladner MORRISON & FOERSTER, LLP 1290 Avenue of the Americas New York, NY 10104 mladner(a.mofo.com Counsel for Defendants Bank One Corporation and First USA Bank, N.A.
0
1
Charles E. Buffon COVINGTON & BURLING LLC 1201 Pennsylvania Avenue, NW Washington, D.C. 20004-2401 cbuffon( acov .com Counselfor Defendants Chase Manhattan Bank USA, N.A., The Chase Manhattan Bank, Inc., and J.P. Morgan Chase & Company, Inc.
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Peter E . Greene SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP Four Times Square New York, NY 10036 pvreeneCa s kadden .com Counsel for Defendants Citigroup, Inc ., Citibank (South Dakota) N.A., Universal Financial Corp ., Universal Bank, N.A., and Citicorp Diners Club Inc . David F. Graham SIDLEY AUSTIN, LLP One South Dearborn Street Chicago, IL 60603 d raham(a?. sidl0 com Counsel for Defendants Household International, Inc ., Household Finance Corporation, and Household Credit Services, Inc. George A . Cumming, Jr. MORGAN LEWIS, COUNSELORS AT LAW One Market, Spear Street Tower San Francisco, CA 94105 ,gcummin gCa,,m oman iewis . com
1
1
4
1
0
Counselfor Defendants MBNA Corporation and MBNA America Bank, N.A. Christopher R . Lipsett WILMER CUTLER PICKERING HALE AND DORR LLP 399 Park Avenu e New York, NY 10022 Christo_pher.Lipsett(a) wilmerhale .com Daniel H. Squir e WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, NW Washington, D .C. 20006 Daniel . Squire a,wilmerhale .com Counselfor Defendants Providian Financial Corp ., Providian National Bank, and Providian Ban k Edward D . Rogers BALLARD, SPAHR, ANDREWS & INGERSOLL, LLP 1600 Market Street, Ste . 3600 Philadelphia, PA 19103 roQers(a)ballardspahr .com Counselfor Defendant Visa International Service Associatio n Randall A. Hack LORD, BISSELL & BROOK 111 South Wacker Drive Chicago, IL 60606-4410 rhack@.Iordbi s s ell. com Counsel for Defendant Visa U.S.A., Inc. Bob J . Vizas ARNOLD & PORTER LLP 90 New Montgomery Street Suite 600 San Francisco, CA 94105 Bob. Vizas@,aporter.com
1
0
1
1
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1
5
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Counsel for Defendant Visa U.S.A ., Inc. (continued)
Brian Brosnah an HELLER, EHRMAN, WHITE & MCAULIFFE LLP 333 Bush Stree t San Francisco, CA 94104-2878 Brian .Brosnahangbellerehrman.com
0
Eric S. Hochstadt
1
1
1
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