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1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK X IN RE PAYMENT CARD INTERCHANGE FEE AND MERCHANT DISCOUNT ANTITRUST LITIGATION X 0-MD-0(JG) United States Courthouse Brooklyn, New York Thursday, April, 0 0 p.m. TRANSCRIPT OF CIVIL CAUSE FOR ORAL ARGUMENT BEFORE THE HONORABLE JOHN GLEESON UNITED STATES DISTRICT JUDGE A P P E A R A N C E S For the Plaintiffs ROBINS, KAPLAN, MILLER & CIRESI, LLP Attorneys for the Plaintiffs 00 LaSalle Plaza 00 LaSalle Avenue Minneapolis, Minnesota 0 BY K. CRAIG WILDFANG, ESQ. BERGER & MONTAGUE, LLP Attorneys for the Plaintiffs Locust Street Philadelphia, Pennsylvania 0 BY MERRILL G. DAVIDOFF, ESQ. FREEDMAN BOYD DANIELS HOLLANDER GOLDBERG & CLINE, P.A. Attorneys for the Plaintiffs P.O. Box 0 First Plaza, Suite 00 Albuquerque, New Mexico 0 BY JOSEPH GOLDBERG, ESQ.

2 A P P E A R A N C E S (Continued.) For the Plaintiffs HULETT HARPER STEWART LLP Attorney for the Plaintiffs 0 West C Street Suite 00 San Diego, California 0 BY DENNIS STEWART, ESQ. For the Defendants CONSTANTINE CANNON Madison Avenue th Floor New York, New York 00 BY JEFFREY I. SHINDER, ESQ. ADAM OWEN GLIST, ESQ. SIDLEY AUSTIN, LLP Third Avenue New York, New York 00 BY EAMON P. JOYCE, ESQ. ARNOLD & PORTER, LLP Park Avenue New York, New York 00 BY ROBERT C. MASON, ESQ. HOLWELL SHUSTER & GOLDBERG, LLP Broad Street th Floor New York, New York 000 BY MICHAEL S. SHUSTER, ESQ.

3 A P P E A R A N C E S (Continued.) ARNOLD & PORTER, LLP 0 New Montgomery Street Suite 00 San Francisco, California 0 BY ROBERT VIZAS, ESQ. MORRISON & FOERSTER LLP 0 Avenue of the Americas New York, New York 00 BY MICHAEL B. MILLER, ESQ. SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP Four Times Square New York, New York 00 BY PETER E. GREENE, ESQ. PULLMAN & COMLEY, LLC 0 Main Street Bridgeport, Connecticut 00 BY ADAM S. MOCCIOLO, ESQ. PATTERSON BELKNAP WEBB & TYLER LLP Avenue of the Americas New York, New York 00 BY VIVIAN RUTH MILLS STORM,ESQ.

4 A P P E A R A N C E S (Continued.) WILMER CUTLER PICKERING HALE & DORR, LLP World Trade Center New York New York 000 BY DAVID SAPIR LESSER, ESQ. Court Reporter Anthony D. Frisolone, FAPR, RDR, CRR, CRI Telephone () - Facsimile () - Anthony_Frisolone@nyed.uscourts.gov Proceedings recorded by computerized stenography. Transcript produced by Computer-aided Transcription.

5 0 0 (In open court.) COURTROOM DEPUTY All rise. The United States District Court for the Eastern District of New York is now in session. The Honorable John Gleeson is now presiding. (Honorable John Gleeson takes the bench.) COURTROOM DEPUTY Calling civil cause for oral argument in Docket No. 0-MD-0, In Re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation. THE COURT Good afternoon. Have a seat, please. We're here on class plaintiffs' motion and I have no intention, I don't know how long you plan to be here, there are so many of you. I don't have any intention to roll up my sleeves and get down in the weeds about these websites. I think they're misleading and need to be corrected. Just to give one example of my take on it. There's different degrees of "misleadingness," and my concern right now is not with the disputes among you about the relative merits of the settlement, we ll deal with that in due course. My concern is with these members o the absent members of the class and whether they're making decisions based on bad information based on misleading information. And it looks to me like they're being manipulated. And these are your own, for the most part, not always, these are your own members. I don't know why this would happen.

6 0 0 I will give one example. It s asserted here that -- this is on the Merchants Object! site -- is misleading. I'm referring to Paragraph of the declaration of Ms. Sweeney. It s misleading with regard to what the merchants' options are and the screen shot that's appears in Paragraph it says, "Your options, what that means," and there's two options there -- opt-out and object electronically, opt-out and object via standard mail. And that's it. And I'm told in the opposing papers that some merchant is supposed to extrapolate from a sentence above where the options are that there's an option to do nothing. It s not right, it s not fair, you have to be fair to these people, so I'm not going through all this stuff. I think it s completely misleading and my fear is there's merchants who, if they were better educated about their options, might object but not opt-out because they don't understand that they're not going to be able, if I overrule the objections and approve what is now a proposed settlement, they're not going to be able to share in the damages. So I ll hear you, but as I say, I'm not going to take the time and get down in the weeds here. I want to talk about relief in addition to the relief that's requested

7 0 0 by the class plaintiffs, unless you talk me out of it, I have every intention of ordering every one of these sites to include a banner prominently displayed, the first thing they see when they go on the site that Judge Gleeson, who was presiding over the case, has determined that the information previously contained on this site and others like it was misleading, specifically, he's concerned that some merchants may not have fully understood their rights with regard to the proposed settlement before acting. I don't mean that to be the -- either the precise iteration or the only thing expressed, but that's what I have in mind together with a prominent link to the Court-approved site. It s a Court-approved site so they can see that information which is much more objective. I don't want to confuse them any more and I don't know where else we go from here. I don't know if a corrective missive is going to be more confusing or less confusing. I don't know if people who have opted out on bad information should get a chance to opt back in if the settlement is approved. I have every intention, if they come back and seek real relief against these sites for misleading them I have every intention of asserting ancillary jurisdiction over any such claims. So that's where I stand. Anybody want to be

8 0 0 heard from class plaintiffs? MR. WILDFANG Your Honor, Craig Wildfang. Mr. Stewart is going to present our argument today to the extent you want to hear from us first he's the guy. THE COURT Okay. MR. STEWART I think Court expressed our views on the matter. I don't think I have anything else to add. Just in the example that you gave, I would just add that, unfortunately, that page that you made reference to in the "What that means" nowhere says that what that means if you opt-out is you've given up your claim for damages to share in the -- THE COURT I understand. MR. STEWART -- resolution of the case. THE COURT You can rebut anything that's said by the Objectors. Anybody want to be? Mr. Shinder? MR. SHINDER Yes. Okay if I come up? THE COURT Yes. MR. SHINDER I will dispense with the portion of my argument that's going to address the fact that these sites are not misleading. THE COURT I didn't hear what you just said. MR. SHINDER I'm going to dispense with the portion of my argument of he misleading nature of the sites

9 0 0 given your views. THE COURT All right. MR. SHINDER I will say this, your Honor. Certainly, there was no intention whatsoever to deceive. In fact, all of the sites including the Merchants Object! site have detailed references what it means to object, what it means to opt-out, the benefits, the costs of exercising any of those options including that if someone opts out they will be relinquishing their right to participate in any money damages that are awarded in the settlement. That's in all of the sites including the Merchants Object! site. THE COURT I read your papers. I'm not persuaded that they're not misleading. MR. SHINDER Okay. If the Court is inclined as it seems to be to order prominent banners to the Court-approved website we would respectfully request that the Court-approved website include, consistent with the Court's order, on preliminary approval. This court ordered the Notice Plan that was set forth in Appendix E to the settlement agreement which authorized the creation of the website, neutral website, that would include all filings that were made in conjunction with the preliminary approval motion. If one goes to the Court-approved website, one

10 0 0 0 finds only the filing made by class counsel in the motion for preliminary approval. One does not find any of the objections. One cannot find the brief filed by the objecting plaintiffs, the NRF brief, Home Depot's pre. THE COURT I'm not going to direct that these other sites that you're defending should be shut down. They'll be there. By definition, someone will have gone on to that site. And after this banner that says the site was previously misleading and the link to the Court-approved site you'll say what you say. They'll see the contrary views. You can't just mislead them. MR. SHINDER We are not misleading them. THE COURT Yes, you are. MR. SHINDER That -- THE COURT You have to be a lawyer. You have to be a lawyer to actually believe that, for example, this bolded "If you do nothing, the Court will assume you approve of the settlement." You'll have to be lost in our world of lawyering to believe that undoes the damage that's done by this "Take Action Now" and by burying the link to the site in frequently asked questions. I'm not going to belabor this with you. I'm just talking basic fairness. MR. SHINDER I'm not contesting that. I'm requesting that the Court-approved website that is now going

11 0 0 to be prominently displayed include all the papers that were filed on the motion for preliminary approval. That's what was in the notice plan. THE COURT Denied. MR. SHINDER Okay. THE COURT I want you to sit down with your adversaries the -- What else do you have to say, by the way? MR. SHINDER The other issue, if we're going to get into corrections and -- THE COURT We're going to get into corrections. In the first instance, I'm going to direct that you sit down with class counsel guided by my comments here today and the ones I ll make by the time we're done and try to comply. I got 00 other cases, I don't feel like sitting down and figuring out myself what the remedy is. I'm going to direct you to take a crack at it with class counsel. MR. SHINDER Okay. THE COURT What else do you have. MR. SHINDER If we're going go get into the realm of corrections, we've highlighted in our papers blatant misstatements that are on unauthorized websites that class counsel has put up that claim as a benefit of the settlement that the system gives merchants the ability to discount, that's just not true.

12 0 0 Merchants can have the ability to discount from the DOJ consent decree that preceded this settlement. This settlement will reject it today. The merchants would still have the ability -- THE COURT Do you want to address the motion that's before me by the plaintiffs for corrective action on your part? Is there a motion before me now on your part for corrections to the proposed settlement papers? MR. SHINDER No. THE COURT Then let s address the motion that's before me, please. MR. SHINDER Okay. I have nothing further, your Honor. THE COURT All right. Anything further from the class plaintiffs? MR. STEWART No, Your Honor. THE COURT I want you to sit with the objectors and try to work this out. I'm granting the relief that's requested. In principle, I'm granting the relief stated on the proposed order granting relief that was submitted in connection with the initial motion papers and for the actual implementation of that. I'm going to give the parties a week to try to propose to me jointly a fix.

13 What you can agree on, I want submitted to me to the extent that you re still in disagreement and I need to rule on it. You can submit along with the joint submission your separate suggestions to me. Anything else? Have a good day. (WHEREUPON, this matter was adjourned.) * * * 0 CERTIFICATE OF REPORTER I certify that the foregoing is a correct transcript of the record of proceedings in the above-entitled matter. Anthony D. Frisolone, FAPR, RDR, CRR, CRI 0

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