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In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation

United States District Court, E.D. New York

October 3, 2014

IN RE PAYMENT CARD INTERCHANGE FEE AND MERCHANT DISCOUNT ANTITRUST LITIGATION

H. Laddie Montague, Jr., BERGER & MONTAGUE, P.C., Philadelphia, PA.

K. Craig Wildfang, ROBINS, KAPLAN, MILLER & CIRESI L.L.P., Minneapolis, MN.

Bonny E. Sweeney, ROBBINS GELLER RUDMAN & DOWD LLP, San Diego, CA. Co-Lead Counsel for the Plaintiff Class

Neil S. Binder, BINDER & SCHWARTZ LLP, New York, NY, Attorneys for Settlement Recovery Group, LLC

Daniel L. Brown, Esq., SHEPPARD, MULLIN, RICHTER & HAMPTON, New York, NY, Attorneys for Premier Enterprises Group, Inc.

MEMORANDUM AND ORDER CONTAINING PERMANENT INJUNCTION

JOHN GLEESON, District Judge.

A. Preliminary Statement

In a letter dated November 14, 2013, Berger & Montague, P.C., Robins, Kaplan, Miller & Ciresi L.L.P., and Robbins Geller Rudman & Dowd LLP, as co-lead counsel for the plaintiff class ("Class Counsel") in this antitrust action, notified the Court that misleading solicitations were being made to class members to induce them to sign up with a third-party claims filing company. See No. 05-MD-1720, ECF No. 6088. Class Counsel sought injunctive relief that would protect class members' interest in the settlement funds. See id.

The application concerned Settlement Recovery Group, LLC ("SRG"), a third-party claims filing company, and Premier Enterprises Group, Inc. ("Premier"). Pursuant to a referral agreement with SRG, Premier made misleading solicitations to class members on SRG's behalf. The conduct of SRG and Premier is but one facet of a larger phenomenon that occurred in an earlier related class action, In re Visa Check/Master Money Antitrust Litigation (" Visa Check ") and has replicated itself in this one: the need to protect the class members who will share in the settlement fund in this case, especially the small and relatively unsophisticated merchants who constitute the overwhelming majority of the class, from overreaching by third-party claims filing companies.[1] It raises important questions regarding the breadth of a court's authority to police the behavior of third parties - nonparties to the case - in their dealings with the class. More precisely, it requires the Court to reconcile the legitimate interests that claims filing companies have in soliciting business with the need to protect merchants not only from confusion but from needlessly ceding a significant portion of their future claims - in the case of SRG, over one-third of their individual recovery - to overreaching claims filing companies.

The Court's authority is clear, and its obligation to protect class members is strong. The only effective way to avoid confusion and intolerable inefficiencies in the claims filing process is to be firm: any third-party claims filing company that knowingly makes - directly or through an agent acting on its behalf - material false or misleading statements to merchants in an effort to solicit their business risks being permanently enjoined from filing claims in this case.

For the reasons discussed below, Premier is permanently enjoined from engaging, directly or indirectly, in claims filing services in relation to any settlement in this case. As for SRG, the conduct alleged by Class Counsel is sufficiently egregious to trigger such a permanent injunction. However, evidentiary issues that arose at the hearing, taken together with remedial steps SRG took in the immediate aftermath of its improper conduct, counsel against the issuance of a permanent injunction against SRG. Finally, the other claims filing companies whose conduct has been the subject of evidentiary hearings - Managed Care Advisory Group, Spectrum Settlement Recovery, Financial Recovery Services, Inc., and Refund Recovery Services LLC - have shown cause why injunctive relief against them should not be ordered.

B. Background

1. Overview of the Case

In this antitrust action, the class plaintiffs allege that Visa U.S.A. Inc. ("Visa"), MasterCard International, Inc. ("MasterCard") and a number of banks conspired to fix interchange fees, which are part of the price merchants pay on each transaction involving Visa- or Master-Card-branded credit cards, in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. The plaintiffs' arguments are more fully set forth in In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, 05-MD-1720, 2013 WL 6510737, at *1 (E.D.N.Y. Dec. 13, 2013) (" Interchange I ") (approving settlement and plan of allocation), and I assume familiarity with that decision here. See also In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 05-MD-1720, 2014 WL 92465, at *1 (E.D.N.Y. Jan. 10, 2014) (" Interchange II ") (awarding attorneys' fees).

This case was litigated for more than eight years before I approved the parties' negotiated Settlement Agreement in an Order dated December 13, 2013. Interchange I, 2013 WL 6510737, at *2-3. "The settlement has two principal components: a fund of about $7.25 billion (before reductions for opt-outs, which reduced the fund to about $5.7 billion), against which merchants who did not opt out of a Rule 23(b)(3) class may make damages claims; and injunctive relief in the form of various credit card network rules changes, which apply to all members of a Rule 23(b)(2) class." Interchange II, 2014 WL 92465, at *1. Arguments for and against the settlement were presented at length in writing and at a fairness hearing I held on September 12, 2013. Interchange I, 2013 WL 6510737, at *1.

In addressing the damages-fund component of the settlement, I rejected various objections and certified the Rule 23(b)(3) damages class and approved the proposed plan of allocation. See Interchange I, 2013 WL 6510737, at *21-26 (addressing objectors' arguments against certification of class), 26 n. 20 (addressing Rule 23 certification requirements). The Settlement Agreement defined the Rule 23(b)(3) class as follows:

A "Rule 23(b)(3) Settlement Class" under Federal Rules of Civil Procedure 23(a) and (b)(3), from which exclusions shall be permitted, consisting of all persons, businesses, and other entities that have accepted Visa-Branded Cards and/or MasterCard-Branded Cards in the United States at any time from January 1, 2004 to the [November 27, 2012] Settlement Preliminary Approval Date, except that this Class does not include the named Defendants, their directors, officers, or members of their families, financial institutions that have issued Visa- or MasterCard-Branded Cards or acquired Visa- or MasterCard-Branded Card transactions at any time from January 1, 2004 to the Settlement Preliminary Approval Date, or the United States government.

Id. at *1 n.3, *4. Class Counsel estimate that the class contains at least 12 million merchants that may file claims against the $5.7 billion settlement fund. Interchange II, 2014 WL 92465, at *1, *8 n.12.

The December 13, 2013 Order is currently on appeal to the United States Court of Appeals for the Second Circuit. See, e.g., No. 05-MD-1720, ECF Nos. 6125, 6128, 6135, 6164, 6174, 6176.

2. The Visa Check Case

Visa Check was a separate but related multi-district litigation. The Visa Check class plaintiffs alleged that the networks' practice of requiring merchants that accepted Visa- and MasterCard-branded credit cards to also accept the networks' debit products constituted an illegal tying arrangement, in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. Visa Check III, 297 F.Supp.2d at 507. They further alleged that the networks attempted to monopolize the debit card market, in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2. Id.

In 2003, just as a trial was about to commence, the class plaintiffs entered into separate settlement agreements with Visa and MasterCard, providing for, inter alia, the creation of a combined settlement fund of $3.05 billion. Id. at 508. By Order dated December 19, 2003, I approved the Visa Check settlement agreements and the plan of allocation for distributing the settlement funds. The Visa Check plaintiff class contained approximately five million members. Id. at 506. The actual number of claims filed was lower - in excess of 815, 000 claims. Interchange II, 2014 WL 92465, at *8 n.12; No. 96-CV-5238, ECF No. 1486 ("Zola Aff.") ¶ 4.

The Visa Check plan of allocation provided for annual payouts by Visa and MasterCard over a period of ten years. It also "set[] forth a method for estimating the damages of each class member and allocating settlement funds accordingly. Class members... receive[d] monetary awards... directly proportional to their debit and credit purchase volume (as well as online debit transactions) during the class period, i.e., from October 25, 1992 to June 21, 2003...."[2] Visa Check IV, 2006 WL 1025588, at *1.

This approach made the claims submission process simple for class members. Merchants already in the Visa Transactional Database - the overwhelming majority of the class - did not need to provide any information to recover a monetary award from the net settlement funds based on their purchase volumes from October 1, 1996 to June 21, 2003 (the relevant time period for which there was Visa transaction data). See Visa Check III, 297 F.Supp.2d at 519, 519 n.21. Each individual class member's recovery was estimated by applying statistical models to the Visa data for that period; different methods of calculation were used for debit and credit charges and for online debit charges. See No. 96-CV-5238, ECF No. 1284 ("Nov. 2, 2005 R & R") at 5-6. The Visa data was useful in estimating the damages owed by both Visa and MasterCard to the vast majority of the class because virtually all merchants who accepted Visa also accepted MasterCard.[3] Visa Check III, 297 F.Supp.2d at 519 n.21.

For the class period prior to October 1996, class members submitting claims needed to produce information, such as merchant contracts or processor statements, indicating the periods when they accepted Visa and/or MasterCard debit cards. Id. at 519. Claimants could provide "processor statements showing the number and/or dollar volume of online debit transactions accepted during the Class period" - a minimal requirement that relieved class members of what might otherwise have been the "insurmountable" burden of "produc[ing] the necessary records of transactions." Id (citations omitted).

Visa Check class members received notice of their estimated cash payments as calculated by the Claims Administrator as well as of their right to challenge those estimates. Nov. 2, 2005 R & R at 6-9. A class member wishing to challenge its estimate was required to state what it believed its claim should be and provide supporting documentation. Amended Plan of Allocation ¶ 7.1. Upon reviewing a challenge, the Claims Administrator could choose to "consult with Visa, MasterCard, or the Class Member's acquiring bank or processor, as appropriate, " or request additional information or documentation from the merchant before making a determination. Id. ¶¶ 7.2-7.3. The merchant would ultimately receive a determination letter stating that their estimated payment had been increased, decreased or would remain unchanged. See id. Determination letters included notice of the merchant's right to appeal by petitioning counsel for the Visa Check class and subsequently the Court for review of the Claims Administrator's calculations. Id. ¶¶ 7.2, 7.4.

Though there are important differences between the Visa Check action and the present Interchange Fee case, the two cases are similar in several respects. "[B]oth are antitrust cases involving the two largest networks and banks, with merchants as plaintiffs; both involve novel and complex legal questions; in their history, both encompassed many years of litigation involving many thousands of hours of lawyering; and in their results, both ended in huge settlement funds accompanied by programmatic reforms of (possibly) even greater monetary value." Interchange II, 2014 WL 92465, at *4. And both presented the difficult issue that is now before the Court: What measures, if any, may properly be taken by the Court to protect class members from the false or misleading solicitations of third-party claims filing companies?

3. Overreaching by a Third-Party Claims Filing Company in Visa Check

On September 9, 2005, lead counsel for the Visa Check plaintiff class notified the Court that Spectrum Settlement Recovery ("Spectrum"), a third-party claims filing company, was "intentionally spreading misinformation to confuse Class members and complicate the allocation process in an attempt to create a need for its services.'" Visa Check IV, 2006 WL 1025588, at *2 (quoting No. 96-CV-5238, ECF No. 1240 ("Dec. 13, 2005 Order")). In its response, Spectrum described its business - the business of third-party claims filing companies - and its value proposition in relation to the Visa Check action:

Spectrum is one of the nation's largest claim filing and fund recovery services for commercial and securities class-action settlements.... Most businesses have neither the technical expertise, nor the time to devote corporate personnel to obtain and sift through corporate records needed to properly support a claim for such settlements. Spectrum increases participation rates by generating corporate interest in submitting claims. It does this by managing the claims filing process for the customer, which has in effect outsourced to Spectrum the package of work required to submit... in this case, a solid challenge, if appropriate, to the estimate from the Claims Administrator. This includes compiling and analyzing transaction data for the applicable claim period, testing the data to determine the maximum claim amount, preparing the claim, filing the claim and monitoring the claim and the claims administrator through to the final payout.

No. 96-CV-5238, ECF No. 1194 (Spectrum Opp.) at 2-3.

I referred the application to Special Master Robin M. Wilcox, who reported on November 2, 2005 that Spectrum had indeed made the following "incorrect or misleading" statements in communications to class members:

(1)... the Visa Transactional Database failed to distinguish between credit card and off-line debit transactions; (2)... class members "may be eligible to collect significant top line revenue from $100, 000 to $6, 000, 000;" (3)... the claims administrator would become "adversarial" with respect to the merchants and "is obligated to rely only on the questionable information provided by MasterCard and Visa;" and (4)... the estimated cash payment sent to class members was an "offer" or "partial offer."

Visa Check IV, 2006 WL 1025588, at *2 (quoting Nov. 2, 2005 R & R at 24-29). Counsel for the class requested both a declaration that contracts between Spectrum and class members were void and an injunction prohibiting Spectrum from soliciting class members in the future and requiring it to correct the misstatements already made to class members. Id. I adopted Special Master Wilcox's findings as well as her recommendation that I refrain from granting the injunctive relief sought. Id. Instead, I directed counsel for the class "to (1) publish a notice on the case website correcting Spectrum's statements; and (2) send the same corrective notice to all class members with whom Spectrum had communicated." Id. (citing Dec. 13, 2005 Order).

On February 15, 2006, counsel for the Visa Check class again requested injunctive relief against Spectrum. The request was based on a new set of allegedly misleading statements made to class members. "Spectrum is once again using misrepresentations - this time that the U.S. government's potential claim [to participate in the settlement] will delay payments to class members - to gin up business.'" Id. at *3 (quoting No. 96-CV-5238, ECF No. 1254 (Lead Counsel Memo of Law) at 2). In addition to stating or suggesting in numerous solicitations that the government's claim would "push back the payment date" for claims, id. at *3, *5, Spectrum also stated that "the government's claim, if validated, will reduce the amount of your recovery, " id. at *3. By that stage of the litigation, Spectrum had expanded its services and was not merely contracting with merchants to file their claims but also purchasing their claims outright. Id. at *2.

Counsel for the class argued that Spectrum's false and misleading statements warranted an order requiring it to send corrective notices to class members and allowing any merchants who were misled by those statements to void their contracts with Spectrum. Id at *3. I agreed and granted counsel's motion. Id. at *4. In doing so, I observed as follows:

It is hardly unreasonable to expect - and indeed require - Spectrum to get the facts right when it solicits business from class members. If it fails to do... Spectrum will bear the cost of its errors.... In short, as Spectrum concedes, it was "not as careful with the wording" of its communications to class members as "[the Court] would have liked." Spectrum must now be held accountabl[e] for its carelessness.

Id. at *6 (citation omitted). Pursuant to my authority under the All Writs Act, 28 U.S.C. § 1651(a), I ordered counsel for the class to (1) send a corrective notice (already agreed upon with Spectrum) to every class member that was solicited to sell its claim to Spectrum, and (2) mail a notice to all class members under contract with Spectrum "that the contract may be voided by the merchant without legal ramification" upon the provision of a notarized statement that the class merchant "relied on misleading marketing materials in entering the contract." Id. at *4-5, *6-7, *8. I followed the March 31, 2006 decision ("March 31 Order") with a second order dated April 18, 2006 ("April 18 Order") setting forth the specific forms of notice to be sent to class members.

Spectrum filed a notice of appeal on April 4, 2006 and an emergency motion for a stay pending appeal on April 12, 2006 with the United States Court of Appeals for the Second Circuit. No. 96-CV-5238, ECF Nos. 1289, 1316. On April 21, 2006, the Second Circuit granted a temporary stay of this Court's mandatory injunction.

On May 12, 2006, the parties filed a joint application with this Court requesting approval of certain modifications to the March 31 and April 18 Orders. Id., ECF No. 1309. In that application, the parties apprised the Court that Spectrum had agreed to dismiss its appeal provided the following changes were accepted by the Court: (1) class members rescinding contracts with Spectrum would be required to specify which misleading statements they had relied upon or without which they would not have entered into the contract; and (2) Spectrum would be enabled to contest individual claims for rescission before the Court. Id. I denied the joint application on June 5, 2006, id., ECF No. 1310, reiterating my earlier finding that "equity requires that class members be authorized to rescind their contracts without having to litigate reliance, provided they state under oath that they entered into their contracts with Spectrum in reliance on its false or misleading statements." Id. I also noted the striking reversal in position on the part of counsel for the class, who had previously argued that the specter of having to litigate reliance would have a chilling effect on class members who felt they had been misled and were being "held hostage" by their contracts with Spectrum. Id. (quoting id., ECF No. 1267 (March 1, 2006 Letter) at 2).

On June 27, 2006, Spectrum withdrew its motion for a stay pending appeal and requested that Second Circuit dissolve the temporary stay it had granted, citing as its motivation the burden the temporary stay had placed on Spectrum's ongoing business related to the Visa Check action. Id., ECF No. 1325. The Second Circuit dismissed the appeal on June 28, 2006. Id.

4. The Procedure for Filing Claims in This Case

The claims filing process in this case is governed by the Plan of Administration and Distribution (the "Plan"), which I approved alongside the Settlement Agreement in the December 13, 2013 Order. Interchange I, 2013 WL 6510737, at *27; No. 05-MD-1720, ECF No. provides for the creation of two funds totaling $7.25 billion. Plan at I-1, I-10; Additional Info. at 1, 10-11. As mentioned above, opt-outs from the class reduced the total settlement fund to $5.7 billion.

The bulk of the funds will be distributed by the Class Administrator to members of the Rule 23(b)(3) damages class on a pro rata basis according to the actual or estimated amount individual merchants paid in interchange fees on Visa- and MasterCard-branded card transactions during the class period, from January 1, 2004 to November 28, 2012. Additional Info. at 2. As in the Visa Check action, actual or estimated recovery amounts will be based on transaction data available in Visa's databases and not data maintained by MasterCard or other sources, which "either lack sufficient coverage and consistency and/or do not include sufficient transactional information on Interchange Fees Paid to provide meaningful and systematic assistance in valuing claims."[4] Additional Info. at 3. Two Visa databases, the SQL-AIM Database and the MISD Database, provide data from the class period and "together... include all U.S. Visa-Branded Card transactions processed through Visa's systems, " including sales transaction amounts and the "vast majority" of interchange fees paid on transactions.[5] Id. A third database, the Visa Merchant Profile Database, houses merchants' identifying information and provides the link between individual class members and the Visa transaction data. Id. at 4.

To arrive at class members' recovery amounts, the Claims Administrator will take a two-step approach. First, it will determine whether a class member's transactions can be found in the Visa data. If so, "the face value of [the merchant's] claim will be equal to the amount of actual Interchange Fees Paid." Id. If not, the Claims Administrator will make a reasonable estimate of the class member's claim value. Typically, this will require the class member to provide information such as identifying information, Visa-specific sales transaction volume, total payment card sales transaction value, average default Visa interchange rates, the period during which Visa- or MasterCard-branded cards were accepted, and/or total annual retail sales. See id. at 4-5, 6-7. Depending on the information provided by the claimant to the Claims Administrator, a corresponding calculation methodology will be used to estimate the value of its claim. Id. at 5.[6]

The majority of claims will be valued at the first stage of the calculation process - that is, Visa transaction data exists for most class merchants during the damages period. Thus, the claims process will be simple for most damages class members. The merchants will receive a preprinted claim form containing their estimated recovery amount and may perfect their claim simply by signing and mailing back the claim form by the specified deadline. Id. at 9, 13-14. This one step is all that is required of class merchants looking to secure their recovery under the settlement. Before claims forms are made available, the Claims Administrator may ask class members for identifying information to input into the Visa databases or transaction information to be used to estimate claims, or class members may themselves choose to provide such information in advance by preregistering.[7] Id. at 6-7. Ultimately, however, the responsibility for generating actual or estimated claims values lies with the Claims Administrator; class merchants need only sign and return their preprinted claim forms.

Any merchant may of course challenge the amount of the claim as calculated by the Claims Administrator. Upon receiving a first-time challenge, the Claims Administrator may require the merchant to provide additional identifying information to run a fresh search on the Visa databases for the merchant's relevant transaction data. Id. The Claims Administrator may also request transaction information if it determines that the claims values must be estimated. Id. at 7, 14. If the merchant continues to dispute the Claims Administrator's calculation, it "must state what it believes is a more accurate estimate and/or explain how it can be more accurately calculated, including supporting documentation." Id. After reviewing the challenge and documentation provided by the merchant, the Claims Administrator will determine if the claims values should be adjusted and then notify the merchant of its final decision. Id. at 8, 14-15. This notice will also inform the merchant of the right to appeal, first to Class Counsel and then to the Court. Id.

5. The Allegations of Overreaching By Third Party Claims Filing Companies in This Case

According to Class Counsel, overreaching by third-party claims filing companies in relation to the Interchange Fee case before me now began not only before I approved the settlement on December 13, 2013, but even before the September 12, 2013 fairness hearing. In fact, the first hearing in this case regarding the allegedly misleading and false statements of a claims filing company took place on the same day as the fairness hearing. The stream of complaints and confused inquiries from class members related to claims filing companies has been steady ever since. The problem is already a many-headed hydra: the allegations of misleading activity involve far-ranging claims and representations about the litigation, numerous points of contact and delivery systems, and a long list of actors. Several actors have been singled out by Class Counsel as requiring further scrutiny; I outline Class Counsel's complaints about these third-party claims filing companies in the following sections.

a. Managed Care Advisory Group, Inc.

In a letter dated August 27, 2013, Class Counsel alerted the Court to a solicitation campaign embarked upon by third-party claims filing company Managed Care Advisory Group, Inc. ("MCAG") through partnerships with credit card processing companies, including Heartland Payment Systems, Inc. ("Heartland") and Global Payments Inc. ("Global"), which Class Counsel argued would cause widespread confusion within the damages class and disrupt the administration of the settlement. No. 05-MD-1720, ECF No. 5964 ("Aug. 27 Letter") at 1; id., ECF No. 6002 ("MCAG OTSC Response") at 1. MCAG's partners had begun informing their class-member clients ( i.e., merchants for whom they provided credit card processing services) that they intended to have MCAG file their claims against any settlement funds in this case. Id., ECF No. 5969 (MCAG Response) at 2.

More precisely, in a barrage of direct mail communications from MCAG's various partner processing companies, class members were told that unless they "opted out, " in some cases by a certain deadline, MCAG would file claims on their behalf against the Interchange Fee settlement funds, Aug. 27 Letter at 1; No. 05-MD-1720, ECF No. 5964-1 ("Aug. 27 Bernay Decl.") ¶¶ 3, 8, 9; id., ECF No. 6016-1 ("Sept. 11 Bernay Decl.) ¶¶ 3-7, despite the fact that neither MCAG nor the processors had been authorized by the merchants to file such claims. The imposed claims filing service would cost the merchants up to 20% of their recovery as well as an additional upfront "settlement administration fee." See id.; Aug. 27 Bernay Decl. ¶¶ 3, 7-9, Exs. 1-4; Sept. 11 Bernay Decl. ¶¶ 3-7.

Class Counsel, Class Administrator Epiq Systems, Inc. ("Epiq") and entities such as the Texas Attorney General's Office received numerous inquiries and complaints from class members that received communications as part of MCAG's opt-out campaign. See id. Class members' concerns and frustrations were many: they lacked information about the settlement and claims filing process generally; they did not want to be automatically bound to a service they had not themselves chosen or with which they were unfamiliar; they were confused about the deadlines set forth in the "opt-out" communications; they questioned whether the communications were legitimate and whether the opt-out policy was legal; they wished to opt out but were either unwilling or unable to do so, that is, they were unwilling to disclose sensitive information (namely tax identification numbers) or did not know their merchant identification number with their credit card processing company - both of which were required entries on the MCAG opt-out forms. See id.

In addition to their concern about the confusion within the damages class, Class Counsel expressed their concern that MCAG's opt-out program would interfere with the administration of the settlement: "There is an enormous risk, under MCAG's plan, that there will be many thousands, potentially hundreds of thousands, of duplicate claims because many of the merchants for whom MCAG plans to file will not be aware that the company is filing on their behalf and will file claims." Aug. 27 Letter. As a result, Class Counsel sought injunctive relief against MCAG and its partners in the form of a cease and desist order that would also cancel any contracts created under the opt-out program and provide for corrective notice to the damages class. Id.

On September 4, 2013, I issued an order directing MCAG and its partners Heartland and Global to show cause at the September 12, 2013 fairness hearing why the injunctive relief sought should not be granted. No. 05-MD-1720, ECF No. 5975. At the hearing, I determined that Heartland had sent opt-out communications to its approximately 170, 000 class-member customers and that Global had sent communications to its approximately 250, 000 direct customers and possibly "hundreds and hundreds of thousands" more communications to its customers through resellers. Id., ECF No. 6094 ...


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