Full opinion text
OPINION & ORDER WILLIAM H. PAULEY III, District Judge: The Plaintiffs’ class actions allege that credit card issuers collusively adopted class-action-barring arbitration clauses in violation of the Sherman Act to prevent cardholders from redressing their injuries collectively through the courts. They seek injunctive relief prohibiting such clauses in cardholder agreements. Following the denial of summary judgment, these class actions were consolidated for trial. That trial is the latest milestone in this long-running multidistrict litigation in which all of the Defendants settled foreign currency conversion fee claims for hundreds of millions of dollars in damages and attorneys’ fees. Thereafter, many of the Defendant banks also agreed to eliminate class-action-barring arbitration clauses from their cardholder agreements. But Defendants American Express, Citibank, and Discover refused to yield that issue. Counsel for the parties navigated an ocean of documents and electronic discovery, conducted hundreds of depositions, and litigated numerous motions and appeals. This complex dispute' was distilled first in motions to dismiss, then in motions for summary judgment, and finally, because the issues were so nuanced, at trial. Through the diligence and consummate professionalism of counsel, the facts and legal arguments were marshalled to a point of equipoise, but the law does not permit a Solomon-like resolution. While all counsel are commended for their efforts, this Court concludes that the Plaintiffs have not sustained their burden. BACKGROUND The first class action, Ross v. American Express, is brought on behalf of “[a]ll VISA and MasterCard general purpose cardholders of cards issued by [Bank of America, MBNA, Citibank, or Chase].” See Ross v. American Express, No. 04 Civ. 5723(WHP), 2005 WL 2364969, at *13 (S.D.N.Y. Sept. 27, 2005). The second class action, Ross v. Bank of America, is brought on behalf of all persons holding a credit or charge card under a United States cardholder agreement containing an arbitration provision during the class period with the Banks that were defendants in the multidistrict litigation In re Currency Conversion Litigation, No. 01-MD-1409 (WHP) (the “Currency Conversion multidistrict litigation”) (including cards originally issued under the MBNA, Bank One, First USA, and Providian brands). See Ross v. Bank of America, No. 05 Civ. 7116(WHP), Order dated Oct. 6, 2009 (Dock. No. 158) at 11; see also In re Currency Conversion Fee Antitrust Litig., MDL No. 1409, 2009 WL 3444920, at *3 (S.D.N.Y. Oct. 6, 2009). These class actions were consolidated for a bench trial. This Court makes the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52. FINDINGS OF FACT I. The Parties Robert Ross and Randal Wachsmuth are the Class Representatives in Ross v. American Express. Robert Ross, Richard Mandell, Matthew Grabell, S. Byron Bal-bach, Jr., Woodrow Wilson Clark, Jr., Andrea Kune, and Paul Impellezzeri are the Class Representatives in Ross v. Bank of America. These eight representatives are holders of Discover, Diners Club, MasterCard, and/or Visa branded general purpose credit cards. Richard Mandell also represents a certified subclass of “all persons holding during the class period a credit card under a United States cardholder agreement with Discover Bank, which cardholders have not previously successfully exercised their right to opt-out of the Arbitration of Disputes provision.” Ross v. Bank of America, No. 05 Civ. 7116CWHP), Order dated Oct. 6, 2009 (Dock. No. 158) at 11. The Defendant American Express entities are American Express Company and its subsidiaries American Express Travel Related Services, Inc., American Express Centurion Bank, and American Express Bank, FSB (collectively, “American Express” or “Amex”). The Defendant Citigroup entities are Citigroup and its subsidiaries Citibank (South Dakota), N.A. and Citicorp Diners Club, Inc. (collectively “Citi”). The Defendant Discover entities are DFS Services LLC, Discover Financial Services, and Discover Bank (collectively, “Discover”). Bank of America (which merged with Defendant MBNA in 2006), Capital One, Chase (which merged with Defendant First USA/Bank One in 2004 and acquired Providian in 2008), and Household/HSBC (together with the Defendants, “the Issuing Banks”) entered into court-approved settlement agreements with Plaintiffs in July 2010. Ross v. Bank of America, No. 05 Civ. 7116, Final Judgment and Order of Dismissal, dated July 22, 2010 (Dock. No. 251). The National Arbitration Forum (“NAF”) was also a settling defendant. Ross v. Bank of America, No. 05 Civ. 7116, Final Judgment and Order of Dismissal, dated Apr. 30, 2012 (Dock. No. 383). II. Consumer Arbitration Agreements and Class Action Arbitration Agreements In the late nineties, a wide array of firms and industries explored the prospect of using arbitration for consumer dispute resolution. (Trial Transcript (“TT”) at 4122:23-4123:1 (Elzinga).) At that time, such clauses proliferated in the automobile, financial services, brokerage services, cell phone, HMO, and online retailing industries. (TT at 4124:1-16 (Elzinga).) Consumer arbitration and class action waivers were also hot topics of discussion in the legal community. (See, e.g., TT at 2869:7-15 (Lipsett); TT at 3277:24-3278:5 (Heine); TT at 3607:7-10 (Nelson); PX-8661.) III. American Express Adopts a Consumer Arbitration Clause Against this backdrop, in the spring of 1998, Timothy Heine (Managing Counsel in Arnex’s General Counsel’s office) proposed that Amex include a mandatory class-action-barring arbitration provision in its card member agreements. (TT at 3270:9-14, 3276:9-12, 3277:13-16 (Heine).) By mid-1998, Heine assembled a team of Amex in-house counsel to study the arbitration issue. (TT at 3279:25-3281:9, 3286:4-8 (Heine); AX-9054.) In November 1998, Heine and Julia MacDermott (Group Counsel for Amex) pitched the adoption of an arbitration clause to Alfred Kelly (Amex’s U.S. Consumer Card Services Group President). (TT at 2621:20-2622:2 (Kelly).) Kelly concurred with their proposal and considered the arbitration provision an “easy call” that would benefit Amex by “lowering litigation costs in the short term and [avoiding] very expensive class action suits in the medium to longer term.” (TT at 2604:6-17 (Kelly).) In late 1998, Kelly approved adoption of the arbitration clause. (TT at 3286:9-21, 3288:18-19, 3306:8-12 (Heine); TT at 2604:6-8, 2611:8-2612:5 (Kelly).) Amex notified cardholders of its arbitration provision in April 1999 and the provision became effective upon the card member’s next use of the card, or no later than June 1999. (PX-5028.) Amex continues to maintain a class-action-barring arbitration clause. (See, e.g., PX-8439.) IV. The May 25, 1999 WilmerHale Meeting of Senior Im-House Credit Card Counsel Some time before May 1999, Chris Lip-sett and Ron Greene (two WilmerHale partners) spoke with Heine about Amex co-sponsoring an “informal meeting of senior in-house credit card counsel representing the various segments of the U.S. credit card business” on “issues of common concern,” including arbitration. (TT at 508:1-9 (Heine); PX-0042.). Lipsett and Greene, feeling “pressure from the firm to enlarge [their] practice” had conceived of the meeting as a marketing strategy at which they “could in substance show [their] stuff” to potential new clients. (TT at 2824:25-2827:24 (Lipsett).) WilmerHale hoped to enhance the meeting’s credibility by having some of its sophisticated and diverse credit card firm clients serve as cosponsors. (TT at 2827:13-24 (Lipsett).) A May 3,1999 invitation sent to various credit card in-house counsel identified Amex, Citi, First USA, and Sears Roebuck & Co. as meeting co-sponsors, but neither Heine nor Joan Warrington (General Counsel to Citi Cards’ North American cards business until June 1999, at which point she became Legislative and Regulatory Counsel to the Consumer Bank for Citigroup) recalled Amex or Citi playing any substantive role in meeting preparations. (PX-0042; TT at 3320:2-3321:19 (Heine); TT at 969:10-25 (Warrington).) The invitation noted, “[w]e recognize, of course, that the companies sending counsel to such a meeting are competitors, and that for legal reasons certain issues will need to remain off-limits” but that in talking to the sponsors, “a consensus quickly emerged that there was a need for a broader exchange of views and experiences.” (PX-0042.) A May 14, 1999 invitation included a proposed agenda listing “the use of arbitration clauses in card agreements” as a topic. (PX-0672.) Lipsett testified that he included arbitration as an agenda item because it was “going to be important to retail financial services firms” and that he wanted “to show these folks that this was something on which we were at the leading edge.” (TT at 2833:4-22 (Lipsett).) The invitation also indicated that Chase, Discover, Household, MBNA, and Providian were likely attendees. (PX-0672.) Lipsett and Green convened the May 25, 1999 meeting at WilmerHale’s Washington, D.C. office. (PX-0032.) Heine (Amex), Warrington (Citi), and Hugh Hayden (Vice President and Associate General Counsel of Discover) attended, along with five of the Issuing Banks. (PX-0032.) While Robert Birnbaum (Vice President and Associate General Counsel for Chase) believed that arbitration was discussed, the only surviving handwritten notes, from Joanne Sundheim (Senior Vice President and General Counsel for First USA) and Janet Burak (Vice President and General Counsel for Household), make no reference to arbitration. (PX-0044; PX-0045; TT at 139:10-15 (Birnbaum).) V. The Creation of the Arbitration Coalition As of the May 25, 1999 meeting, only First USA (in January and March 1998) and Amex (in April 1999) had implemented arbitration provisions. (PX-0063; PX-5028; PX-8052.) After the May 25 meeting, together with the WilmerHale and Ballard Spahr law firms, Amex and First USA organized a second meeting of in-house counsel. (PX-5068; PX-5219.) This group gave themselves the moniker, “the Arbitration Coalition.” (PX-5219; PX-5068.) In 1998, First USA retained Duncan MacDonald as a consultant on arbitration issues. (TT at 1098:3-8 (MacDonald).) MacDonald, a former general counsel for Citi, was an outspoken advocate against class action lawsuits. (TT at 1087:25-1090:8 (MacDonald).) Though MacDonald had not attended the May 25, 1999 meeting, he “certainly knew about it” and was “good friends” with Lipsett. (TT at 2855:5-6, 12 (Lipsett).) Lipsett recalled that MacDonald “was interested in developing some sort of forum to talk about arbitration issues which is something that was kind of an assignment he had from [First USA].” (TT at 2855:9-12 (Lipsett).) Heine (Amex) also helped organize the inaugural meeting of the Arbitration Coalition. (PX-5219.) MacDonald and Heine enlisted Alan Kaplinsky, (a Ballard partner) “to help us round up other businesses that might want to join a coalition to defend and foster arbitration.” (PX-5219.) Kaplinsky, a well-known lawyer in consumer financial services, had already staked out a position as a “thought leader” on arbitration issues. (TT at 2858:1-6 (Lipsett).) Lipsett hoped that involving Kaplinsky would lend further credibility to the endeavor and “minimize the extent to which [Kaplinsky] ... would get more of the attention.” (TT at 2858:13-24 (Lipsett).) MacDonald also planned to reach out to other Issuing Banks including Discover, Household, Bank of America, and MBNA, which were rumored to be considering arbitration. (PX-5219.) Together, MacDonald, Lip-sett, and Kaplinsky recruited in-house counsel from various industries to participate in the inaugural meeting of the Arbitration Coalition. (See, e.g., PX-1208 (MacDonald obtaining contacts from the National Arbitration Forum).) The purpose of the meeting was to explore “efforts to protect arbitration” with a “diverse group” of companies from various industries “that have adopted or are considering adopting arbitration to resolve disputes with their consumer customers’.” (PX-5033; TT at 2860:17-25 (Lipsett).) Amex and First USA (through MacDonald) were listed as co-chairs of the meeting on various invitations. (PX-5220; PX-5221; PX-6125.) On July 13, 1999, Kaplinsky invited Discover’s in-house counsel. (PX-6125.) He warned that “the plaintiffs’ bar is engaged in a ‘take no prisoners’ assault on consumer arbitration programs” and that consumer lenders must “be equally well networked if we are to ultimately prevail in establishing arbitration as the acceptable forum for resolving consumer disputes.” (PX-6125.) Kap-linsky’s invitation also expressed a need to do a better job in communicating with other lenders that have adopted arbitration programs.” (PX-6125.) On July 28, 1999, the Arbitration Coalition convened its first meeting at Wilmer-Hale’s New York office. (PX-6125.) Representatives from seven Issuing Banks attended, including Heine (Amex), War-rington (Citi), and Steve Daily (Discover in-house counsel). (PX-0355; PX-5069.) Lawyers from WilmerHale, Ballard, and other firms, along with representatives from Sears, Toyota, GE Capital, Dollar Financial, JAMS, and Burson-Marsteller, a public relations firm, also attended. (PX-5069.) The July 28, 1999 “Arbitration Agenda” contained the heading “why we are here,” followed by the subheadings “consumer service providers with common issue.” (PX-6125.) Another heading titled “working together to turn the tide” contained the subheadings “sharing best practices” and “drafting fair, enforceable arbitration provisions.” (PX-6125.) Other headings included “PR and Regulatory Efforts” and “Public Relations Problem.” (PX-6125.) With the exception of Daily (Discover), no one kept handwritten notes of the meeting. (PX-6127.) Daily’s notes indicate that “legislation ... working with trade associations, [and] obtaining research regarding arbitration” were discussed. (TT at 766:3-4 (Daily);; PX-6127.) He also noted, “concern” about “bad press” and “bad law” regarding arbitration. (PX-6127.) There were eighteen more meetings or conference calls of the self-styled “Arbitration Coalition.” On July 30, 1999, Wendy Hufford (GE Capital in-house counsel) sent an email to Warrington (Citi), noting that she had enjoyed speaking with her at the “recent meeting in New York” and that she would be interested in sharing “best practices regarding litigation management” with Citi’s litigation director. (PX-7517.) Warrington forwarded the email to Julie Nelson (then responsible for Citi Card’s credit card litigation), suggesting the two “compare notes.” (PX-7517.) VI. Discover Adopts an Arbitration Clause James Swift (Discover’s head of litigation) considered arbitration clauses as early as the mid-1990s. (TT at 3936:23-24; 3945:19-25 (Swift).) Daily researched the use of arbitration clauses and made a concrete proposal to his superiors, Swift and Hayden. (TT at 748:21-24; 750:2-6 (Daily).) Buoyed by his review of proliferating literature, as well as discussions with Daily on the subject, Swift recommended that Discover add a class-action-barring arbitration clause to its card member agreement in 1998. (TT at 3948:11-15 (Swift).) Swift believed that an arbitration provision would save Discover the significant expenses associated with litigating often “meritless” class actions. (TT at 3947:17-3948:3 (Swift).) In early 1999, Swift pitched the arbitration provision to Joseph Yob (Discovers Executive Vice President for Cardholder Operations). (TT at 3954:18-3956:21 (Swift).) Yob approved Discover’s adoption of an arbitration clause and Discover began its four to six month internal process for approving changes to card member agreements before officially providing notice to its cardholders in July 1999. (TT at 3905:9-13; 3906:5-7(Yob).) Also in July 1999, Discover noticed cardholders that it would be implementing a class-action-barring arbitration clause. (TT at 4040:7-23 (Matysik); PX 6124; PX-6138; PX-6139; DX-11004; DX-11005;DX 11013.) The clause took effect in September 1999. (PX 6124; PX-6138; PX-6139; DX-11004; DX-11005; DX 11013.) VII. The September 29, 1999 Arbitration Coalition Meeting Only a few days after the July 1999 coalition meeting, MacDonald emailed his supervisor at First USA and Eric Mogil-nicki (a WilmerHale partner) to organize a second Arbitration Coalition meeting. (PX-1215.) Additional topics MacDonald suggested included “sharing best practices,” “how to set up arbitration program,” “arbitration price statistics,” and “plain language vs. fine print & overkill.” (PX-1215.) In early September 1999, MacDonald invited Arbitration Coalition members to a meeting at WilmerHale’s office in Washington, D.C. at the end of the month. (PX-6134.) The email reminded Arbitration Coalition participants that “[w]e agreed to take a number of steps going forward, including sharing our thoughts and materials (including FAQ responses, customer identification materials, and legal briefs) on the issues regarding arbitration that come up most frequently and pose the greatest difficulty.” (PX-6134.) MacDonald’s email also asked Issuing Banks “if you have not already done so, please send me the arbitration clause used by your company, any change-in-terms notices that were involved in the adoption of the clause, and any answers to FAQs or other explanations of the clause.” (PX-6134.)' The September 29, 1999 meeting agenda identified impediments to using consumer arbitration clauses in consumer contracts, such as “challenges to adoption of arbitration clauses” and “challenges to the absence of class actions.” (PX-0358.) Representatives of seven Issuing Banks attended, including Heine (Amex), Warrington (Citi), and Daily (Discover). (PX-5076.) Lipsett and Mogilnicki of Wil-merHale and Kaplinsky of Ballard attended along with individuals from Sears, GE Capital, Dollar Financial, American Bankers Association, Consumer Bankers Association, and The Wexler Group, a public relations firm. (PX-5076.) Heine (Amex), Gail Siegel (Chase in-house counsel), and Daily (Discover) memorialized the September 29 meeting in internal memos. (PX-0110; PX-5034; PX-8125.) Heine’s memo, dated October 4, 1999 warned of “the possibility of a rogue or unsophisticated player (not necessarily in our industry) who attempts to be heavy handed or unfair in the adoption or exercise of a clause such that it causes all businesses using consumer arbitration to be judged in an unfavorable light.” (PX-5034.) Heine noted that the coalition planned to “[e]stablish[ ] a better information exchange” through a secure internet site and that he agreed to be part of a small sub-group to “discuss and develop initial ‘response points’ to counter the various arguments being made to challenge arbitration clauses” that could ultimately be used as an industry “white paper” if needed. (PX-5034.) Heine testified the sub-group would focus on developing “a series of questions and answers that would help inform the public discourse and ultimately assist in the enforceability of arbitration clauses.” (TT at 3355:19-24 (Heine).) Heine also alluded to the possibility that Arbitration Coalition members would fund amicus briefs to be submitted through trade associations “without attribution.” (PX-5034.) Heine recorded the fact that there were “no plans whatsoever for the group to take any public posture or even consider itself as a formal or official group in any way.” (PX-5034.) Siegel’s memo contained non-public information relating to three Issuing Banks’ future plans for arbitration. (PX-0110.) Specifically, Siegel reported that Citi had “adopted a wait and see attitude” because it “want[ed] to see the results of all the litigation involving First USA,” that Wells Fargo had adopted a “take it or leave it” attitude, and that Household was “watching what is happening.” (PX-0110.) Siegel also spoke with David Carpenter (First USA in-house counsel) “regarding how First USA might be using arbitration as a collective litigation strategy.” (TT at 863:3-5 (Siegel).) Siegel’s memo described the formation of two “subcommittees”: one to “identify issues to study to obtain research (the hat may later be passed around)” and one to “identify talking points to incorporate into a flip book ... to support the use of arbitration.” (PX-0110.) According to Siegel, the Arbitration Coalition discussed “the fact that using arbitration for credit cards could be perceived as anti-consumer which could spawn more bills in Congress in the future.” (PX-0110.) In summarizing her observations and thoughts, Siegel opined that in contrast to the July 1999 meeting, “[t]here is no longer universal fervor for using arbitration clauses in view of the litigation it has spawned.” (PX-0110.) Daily’s memo, dated October 6, 1999 reported on the Coalition’s desire to prepare talking points in defense of arbitration. (PX-8125.) Daily informed his Discover colleagues Swift and Hayden that he was “asked by the group to take a lead in preparing a short briefing paper, in the form of FAQs, on the subject of arbitration” that could be used for government relations and media relations purposes. (PX-8125; TT at 811:9-14 (Daily).) On October 8,1999, Mullen (MBNA) and other MBNA attorneys spoke with Curtis Brown (NAF General Counsel) regarding arbitration. (PX-7696; TT at 1994:3-14 (Brown).) In addition, Mullen spoke with Larry Drexler (Vice President and Associate General Counsel for First USA) about First USA’s experiences with its arbitration clause. (PX-6005.) On January 17, 2000, Brown told Mullen that he had asked David Carpenter (First USA) about his willingness to share information about First USA’s experience with arbitration “regarding the collection/recovery side of their arbitration process.” (PX-7697.) Carpenter had agreed to “share what he could,” but “at a certain point, such information becomes proprietary and competitive.” (PX-7697.) The Arbitration Coalition’s November 17, 1999 meeting at Ballard’s Philadelphia office featured a discussion of Daily’s “FAQ’s Project.” (PX-5078; PX-8140.) Representatives from eight Issuing Banks, including Heine (Amex), Warrington (Citi), and Daily (Discover) were invited. (PX-8140.) Additional participants included MacDonald, Lipsett and Mogilnicki from WilmerHale, Kaplinsky from Ballard, and representatives from Ugly Duckling, Sears, GE Capital, Toyota, Dollar Financial, Delta Funding, TCF Financial, and Balch & Bingham. (PX-8140.) After working on draft FAQs and Talking Points for three weeks, Daily circulated them the day before the meeting. (PX-6140; TT at 811:24-25 (Daily).) Following the meeting, Daily circulated revisions to the FAQs and Talking Points to Arbitration Coalition members. (PX-6143.) The revisions reflected “comments received from the group at our last meeting, as well as comments [Daily] received internally [at Discover].” (PX-6143.) Daily encouraged Arbitration Coalition members to “tailor these documents as you see fit” and elaborated on how Discover customized its own version. (PX-6143.) Daily also offered to work on a “self regulation” project for the Coalition in November 1999. (PX-6010.) To fulfill that promise, he circulated draft fairness guidelines and convened at least two conference calls regarding self-regulation in December 1999 with Heine (Amex), Regina Mullen (MBNA in-house counsel), MacDonald (First USA), Mogilnicki (WilmerHale), and Kaplinsky (Ballard). (PX-6010; PX-6142; PX-6144.) In arranging one of the conference calls Daily opined that “all of the banks using arbitration feel it is important to convince customers, courts, the media, legislators, regulators, and the general public that arbitration is being used by banks in a way that is fundamentally fair, and that will not deprive customers of their rights.” (PX-6144.) In December 1999, MacDonald solicited $5,000 contributions for the preparation of amicus briefs in the Eleventh Circuit by the WilmerHale and Ballard firms in Baron v. Best Buy Co., 260 F.3d 625 (11th Cir.2001). (PX-1222.) Baron involved the enforcement of mandatory arbitration clauses in a retailer’s private-label credit card agreement, where the district judge concluded that NAF was not a neutral arbitrator. WilmerHale’s amicus brief was filed on behalf of Fed Net, a group of former judges acting as arbitrators. (PX-1222.) Ballard’s brief was on behalf of three trade associations, the American Bankers Association, the Consumer Bankers Association, and the American Financial Services Association. (PX-1222.) In soliciting financial support from the Issuing Banks, MacDonald noted that “Baron must be reversed. If not, class action lawyers across the U.S. will create absolute hell for the business community.” (PX-1222.) At the same time MacDonald was soliciting contributions, settling Defendant MBNA notified cardholders it was adopting an arbitration clause effective February 1, 2000. (PX-6000; PX-8347.) Mullen (MBNA) attended the November 1999 meeting of the Arbitration Coalition, but there is no record of any MBNA representative attending prior meetings. (PX-6009; TT at 2802:1-15 (Mullen).) VIII. Subsequent Meetings of the Arbitration Coalition in 2000 The Arbitration Coalition met throughout 2000. WilmerHale hosted the first meeting on January 12, 2000 at its Washington, D.C. office. (PX-5081.) An email reminder encouraged invitees to “bring a copy of your arbitration agreement.” (PX-5081.) Topics on the agenda included “best practices protocol” and “public relations/consumer education.” (PX-5084.) Daily (Discover) and Julie Lepri (Bank One in-house counsel) took notes at the meeting. (PX-6146; PX-6147; PX-7591.) Their notes indicate that arbitration-related litigation was a major topic of discussion but do not discuss any specific arbitration. clauses. (PX-6146; PX-6147; PX-7591.) Daily did not recall whether he brought a copy of Discover’s clause and didn’t “believe [he] saw anyone handing over arbitration agreements” at the meeting. (TT at 832:10-11 (Daily).) Five Issuing Banks attended the January 12 meeting, including Heine (Amex), Harry Silverwood (Citi in-house counsel), and Daily (Discover). (PX-5082; PX-5083; PX-7591.) Additional participants inelud-ed MacDonald, Kaplinsky from Ballard, and representatives from GE Capital, Dollar Financial, American Bankers Association, American General Finance, National Retail Federation, American Financial Services Association, TransAmerica, Consumer Bankers Association, Lynn Stodg-hill, Burr & Forman, Balch & Bingham, and Bradley Arant Rose & White. (PX-5082; PX-5083; PX-7591.) After the January 12, 2000 meeting, MacDonald solicited contributions for another amicus brief to be filed in support of a petition for a writ of certiorari in Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000), a case regarding the arbitrability of class claims. (PX-1226.) MacDonald importuned the Issuing Banks to contribute because the consensus of attendees at the January 12 meeting was that “getting the Supreme Court to hear the case and decide it in our favor is of utmost importance.” (PX-1226.) While MacDonald sought $2,500 contributions from ten institutions, he noted that “[t]he signatories on the masthead would be trade associations, not individual companies.” (PX-1226.) In February 2000, Bank of America and Household noticed their cardholders that they were adopting a class-action-barring arbitration clause. (PX-8024; PX-8150; PX-8344; PX-8369). Both banks implemented their clauses in April 2000. (PX-8150; PX-8344; PX-8369.) Household and Bank of America representatives attended the July and September 1999 Arbitration Coalition meetings. (PX-5069; PX-5076.) Household also had a representative at the January 2000 meeting. (PX-5082.) On March 2, 2000, Amex hosted an Arbitration Coalition meeting at its New York headquarters. (PX-8149.) Again, the “Arbitration Group Meeting” agenda listed “public relations” and “formalization of [the] group” as topics. (PX-5088.) A public relations expert from Burson-Mar-steller made a presentation on “some of the ways in which a public relations effort could alter perceptions about consumer arbitration.” (PX-5228.) Heine (Amex) and MacDonald were designated as contact persons for a small group to formulate “a concrete proposal on how a more organized public relations effort might benefit us all.” (PX-5228.) Seven Issuing Banks attended the meeting, including Amex (Heine) and Citi (Karla Bergeson (Citi Cards in-house counsel)). (PX-5087; PX-7594; TT at 335 (Bergeson).) Additional attendees included MacDonald, Lip-sett and Mogilnicki from WilmerHale, Kaplinsky from Ballard, lawyers from Pepper Hamilton, Bradley Arant Rose & White, and Lynn Stodghill, and representatives from GE Capital, Dollar Financial, Delta Funding Company, and Burson-Marsteller. (PX-5087.) On April 18, 2000, the Arbitration Coalition met again at Ballard’s Philadelphia office. (PX-0089.) “Public relations” was on the agenda. (PX-0089.) Eight Issuing Banks attended, including Amex (Heine), Citi (Nelson), and Discover (Daily). (PX-0117; PX-8030.) Additional attendees included MacDonald, Lipsett and Mogilnicki from WilmerHale, Kaplinsky from Ballard, and representatives from Sears, GE Capital, Dollar Financial, Transamerica, American Bankers Association, GMAC, Burr & Forman, Bradley Ar-ant Rose & White, and Lynn Stodghill. (PX-0117.) On April 30, 2000, after the Supreme Court granted certiorari, MacDonald again solicited donations for amicus briefs in Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 121 S.Ct. 513. (PX-5229.) MacDonald informed the Arbitration Coalition that the cost of another wave of amicus briefs from the Wilmer-Hale and Ballard firms would be significant, noting that such an investment “was modest next to the possibilities.” (PX-5229.) MacDonald warned: “it is important in the extreme for us to try to influence the outcome of this very important case” and that if “Greentree loses, arbitration could suffer a grave, perhaps fatal setback.” (PX-5229.) A victory, on the other hand, “could send many class action lawyers to where they belong — to the employment lines.” (PX-5229.) Also in April 2000, Mogilnicki invited nine Issuing Banks, including Amex (Heine), Citi (Silverwood), and Discover (Daily) to an Arbitration Coalition meeting scheduled for June 14 at WilmerHale’s Washington, D.C. office. (PX-0090; PX-0093.) Other past attendees of Arbitration Coalition meetings were also invited. (PX-0093.) The agenda included litigation and regulatory updates. (PX-0094.) On October 3, WilmerHale hosted the last Arbitration Coalition meeting of 2000. (PX-8054.) Amex (Heine), MacDonald, Lipsett and Mogilnicki from WilmerHale, Kaplinsky from Ballard, and representatives from Pepper Hamilton, Sears. American Bankers Association, Burr & Forman, Bradley Arant, and Hangley Aronchick attended that meeting at Wilmer-Hale’s Washington, D.C. office. (PX-8054; PX-8234.) Issuing Banks First USA/ Bank One, MBNA, and Household sent representatives. (PX-8234.) IX. MacDonald Conceptualizes and Forms the Class Action Working Group In September 2000, MacDonald conceived an idea for a group separate from the Arbitration Coalition to counter “class action mania.” (PX-1235.) Specifically, MacDonald proposed to Kaplinsky, Lip-sett, Mogilnicki, and First USA that they convene a “one day, roundtable brainstorming session that will focus exclusively on the growing epidemic of class actions and new, out-of-the-box ways that industry might adopt in responding to them.” (PX-1235.) MacDonald contemplated inviting “companies and their lawyers that are not in our [arbitration] coalition” from industries such as “big auto, manufacturing, pharmaceutical, brokerage, healthcare [and] retail.” (PX-1235.) MacDonald presented his idea to the Arbitration Coalition at its October 3, 2000 meeting. (AX-9065.) In an email later that month, MacDonald explained that “[t]his special meeting does not reflect a decision to abandon our arbitration efforts, but instead to use them as a base ... to help industry deal with the larger issue of the proliferation of class action law suits.” (AX-9065.) In addition to their direct communications at Arbitration Coalition meetings, the Issuing Banks also exchanged information indirectly. Before the September 29, 1999 meeting, Siegel (Chase) sought information during a telephone conversation with Curtis Brown (NAF) regarding how other Issuing Banks had dealt with issues related to arbitration. (PX-5300.) On September 18, 1999, Siegel told her colleagues Birnbaum and James Condren (Chase in-house counsel) about her conversation with Brown. (PX-5300.) Specifically, Siegel reported that Brown informed her that First USA, Discover, American Express, Sears, Household, GE Capital, and MBNA had implemented arbitration provisions through change-in-terms notices sent to cardholders. (PX-5300.) The fact that MBNA was implementing an arbitration clause was not publicly known at that time. (PX-8347.) Additionally, on January 9, 2001, John Culhane (a Ballard lawyer) emailed Nelson (Citi) on behalf of “a client considering using arbitration clauses in credit card agreements.” (PX-7533.) The client had asked Culhane to “confirm that Universal and Citibank (South Dakota) [were] not currently using arbitration.” (PX-7533.) Culhane explained that if “this information is available, the client would like to know if the use of arbitration clauses is still under consideration and what the major concerns are.” (PX-7533.) On January 16, 2001, the Arbitration Coalition met again in Philadelphia, this time at Pepper Hamilton’s offices. (PX-8251.) The agenda identified “Education/Public Information” and “need for white papers” as discussion points. (PX-8214.) Nine Issuing Banks were invited, including Amex (Heine), Citi (Silverwood and Wendy Kleinbaum (General Counsel for the North American credit card business)), and Discover (Daily). (PX-8251.) No attendance list exists, though Lepri (Bank One) took notes indicating that the Arbitration Coalition discussed arbitration-related case law, legislative developments, and potential market research. (PX-7607; TT at 1797:7-13 (Lepri).) Days later, MacDonald, Kaplinsky, Mog-ilnicki, Lipsett, and others announced the inaugural meeting of the “Consumer Companies’ Class Action Working Group” and attached a “manifesto” championing the “fight” against “abusive class actions.” (PX-5102.) Employing flamboyant language, the “manifesto” declared: “In the class actions wars, it’s not class members versus the companies, it’s the plaintiffs’ lawyers versus the companies. Suing companies is their business.” (PX-5102.) The Consumer Companies’ Class Action Working Group met for the first time on February 14, 2001 at the National Retail Federation in Washington, D.C. (PX-5102.) Seven Issuing Banks attended, including Amex (Heine and MacDermott) and Citi (Nelson and Petra “Tedde” Tash-eff (Citigroup in-house counsel)). (PX-7555.) A number of large corporations, and trade associations sent representatives, including Fleet, GE Capital, Federal Express, Ford, Monsanto, Dollar Financial Group, Primerica, Chrysler Financial, Dow Chemical, Daimler Chrysler, TCF Financial, Master Card, American Bankers Association, National Retail Federation, and the United States Chamber of Commerce. (PX-7555.) Nearly twenty law firms sent attorneys, including WilmerHale, Ballard, Pepper. Hamilton, Hangley Aronchick, Morrison & Foerster, O’Melveny & Myers, Bradley Arant, McGuire Woods, Heller Ehrman, Sidley Austin, Piper Marbury, Skadden Arps, Forman Perry, Nixon Peabody, Alston & Bird, Burr & Forman, Crowell & Moring, and Stroock & Stroock & Lavan. (PX-7555.) MacDonald exhorted the group that “class actions are getting out of hand” and have become “a gaming business” and a “shakedown racket,” but that the group could “beat” the problem “by working together.” (PX-1244.) His prepared remarks suggested that the trial bar was more organized than large consumer companies because “[a]s competitors we are conditioned to go it alone” due to a “Century + of [the] Sherman [Act].” (PX-1244.) MacDonald also cited “embarrassment about charges; fear of competitor exploitation or that elevation will risk media exposure [and] more damages” as reasons for industry’s failure to parry the class action bar’s thrust. (PX-1244.) MacDonald urged the group to “[d]evelop an efficient action plan.” (PX-1244.) Agenda items included “Hallmarks of Abusive Class Actions” and “What Industry Might Do To Manage Class Actions Better.” (PX-7556.) In March 2001, settling Defendant Pro-vidian noticed cardholders that it would implement a class-action-barring arbitration clause the following month. (PX-8044; PX-8349.) A Providian representative had attended the initial May 25, 1999 meeting and the inaugural Consumer Companies’ Class Action Working Group meeting. (PX-0032; PX-7555.) On April 5, 2001, the Arbitration Coalition met at WilmerHale’s New York office. (PX-1252.) MacDonald made “a special pitch for a large turnout” at the April meeting and characterized the Arbitration Coalition as “the only organization uniquely devoted to protecting industry use of arbitration of consumer disputes.” (PX-1252.) MacDonald implored invitees to “help us keep the defense going,” reminding them that “our adversaries are determined to bring industry to its knees” and “find weak links in our Defenses.” (PX-1252.) The agenda noted “legislative developments” and “recent cases” as topics of discussion. (PX-8213.) No attendance list exists, but nine Issuing Banks were invited, including Amex (Heine), Citi (Kleinbaum and Silverwood), and Discover (Daily). (PX-1252.) On May 30, 2001, the Class Action Working Group met for the second and final time at Chase’s headquarters in New York. (PX-0351.) Nine Issuing Banks attended, including Amex (MacDermott) and Citi (Tasheff). (PX-0351; PX-7555.) MacDonald was there, along with Lipsett and Mogilnicki (WilmerHale), Kaplinsky (Ballard), and a host of attorneys from major law firms, including Pepper Hamilton, Morrison & Foerster, Sutherland, Weil, Hogan, Stroock, and Skadden. Other attendees included GE Capital, Ford, Toyota, Consumer Bankers Association, and Professor George Priest from Yale Law School. (PX-0351; PX-7555; PX-8607.) Priest made a presentation to the group about “class action abuse.” (PX-8607.) In the invitation to the May meeting, Harvey (Pepper Hamilton) noted that the “consensus” from the prior meeting was that the group should not try to reinvent the wheel but “work as much as we can through existing organizations and an informal collaboration of inside and outside counsel.” (PX-7557.) The invitation was signed by an “organizing committee” comprised of Michael Barry (Capital One in-house counsel), MacDonald, and a number of law firms including Lipsett and Mogil-nicki (WilmerHale), Kaplinsky (Ballard), and Harvey (Pepper Hamilton). (PX-7557.) According to a summary that was circulated after the meeting, the Class Action Working Group focused on how to advance “class action reform” and even considered “the possibility of formalizing the Group’s existence by incorporating a 501(e)(3) corporation.” (PX-8607.) Barry (Capital One), James Condren (Chase), and Leonard Gail (Bank One in-house counsel) “shared the experiences of their companies with the group.” (PX-8607.) The meeting ended with updates on class action litigation from outside law firms and an agreement “to focus on a set of discrete issues over the summer and meet again in the Fall.” (PX-8607.) However, .the Class Action Working Group never convened another meeting. An Arbitration Coalition meeting may also have occurred on May 30, 2001 in New York. (PX-6022). While it would have been odd to hold an Arbitration Coalition meeting on the same day as the Class Action Working Group meeting, a handwritten attendance list establishes that on some date around May 30 a meeting occurred among seven of the Issuing Banks including Discover (David Oppenheim), as well as Kaplinsky (Ballard), Harvey (Pepper Hamilton), MacDonald, and others. (PX-6022.) X. The In-House Working Group In preparation for the May 2001 Class Action Working Group meeting, Barry (Capital One) reached out to his in-house peers Tasheff (Citi), Condren (Chase), and Gail (Bank One) to lead a panel discussion. (PX-7561.) Barry noted the special concerns of in-house counsel and the importance of sharing “practical ideas that in-house counsel could use.” (PX-7561.) After the May 30th meeting, Barry and Con-dren discussed with MacDermott (Amex) the need to organize another, smaller group of in — house counsel. (PX-7565.) They compiled names of in-house counsel to invite into “our little group,” which they styled the “In-House Working Group.” (PX-7565.) Thinking it best to limit such a group to financial services companies, Barry selected in-house counsel to participate in an inaugural conference call to take place on July 9, 2001. (PX-7565.) The “little group” consisted of Amex (MacDermott), Citi (Tasheff), Capital One (Barry), Bank One (Gail), MBNA (Mullen), Providian (Jamie Williams (in-house counsel)), Household (Susan Jewell and Mark Leopold (in-house counsel)), and Chase (Condren). (PX-8616.) Discover and Wells Fargo were not invited. While the larger Class Action Working Group “has value,” Barry noted a “few major shortcomings” including some obvious ones: “for in-house counsel in financial services companies, issues relating to non-financial issues are not as relevant;” “outside counsel, for all their worth, do not see the same internal issues that in-house counsel face;” and “the [class action working] group’s focus can be more academic and theoretical, and less practical.” (PX-8616.) In contrast, the In-House Working Group could serve as “a sounding board to share issues that impact [the financial services] industry.” (PX-8616.) Topics proposed for the July 9, 2001 inaugural conference call included “[c]reating an informal ‘information please’ email,, network” and “[identifying other means to protect our employers from the plaintiffs’ network.” (PX-5313.) Guilelessly, the designated passcode for the conference call was “ARBITRATION.” (PX-5314.) And the call began with “the obligatory antitrust admonition.” (PX-5313.) Peculiarly, the call participants deny that arbitration was discussed. No attendance lists, notes, or memos of this call exist. On July 31, 2001, Barry (Capital One) reached out to Gail (Bank One) to ascertain whether Bank One permitted cardholders to opt-out of its arbitration provision, and “[i]f yes, was there a penalty (i.e. they had to close their accounts)? And, what percentage of people opted out?” (PX-7609.) Gail forwarded Barry’s email to Lepri (Bank One), noting that “Mike is one of these guys with whom I have a monthly call to chat about benchmarking and other issues.” (PX-7609.) XI. Citi Adopts an Arbitration Clause In November 1998, Nelson recommended to Warrington (then General Counsel of Citi’s U.S. Cards group) that Citi consider an arbitration provision. (TT at 3854:11-3855:11). That same day, Nelson requested information on arbitration from Kaplinsky. (PX-7516.) Warrington informed Bergeson of Nelson’s recommendation. When Kleinbaum replaced War-rington in June 1999, Citi had not decided to adopt an arbitration clause. (TT at 2460:7-20 (Kleinbaum).) In February 2000, Kleinbaum, who received arbitration materials from Lipsett, formed an internal team led by Nelson and Bergeson to consider arbitration pros and cons. (TT at 1704, 1707-08, 3505-08 (Nelson); PX-6078; TT at 2466-67, 3509, 3703-06 (Kleinb-aum).) Bergeson attended the March 2, 2000 Arbitration Coalition meeting. While Nelson and Bergeson’s team was studying arbitration during the summer of 2000, lawyers at Citigroup, Citi Card’s corporate parent, independently began considering arbitration. (PX-6082.) On June 22, 2000, Michael Heyrich, a secunded Skadden associate in Citigroup’s General Counsel’s office, enthusiastically recommended arbitration for all Citigroup’s consumer business lines to Charles Prince (Citigroup’s Chief Legal Officer and General Counsel). (TT at 3822:20-3823:8 (Prince); TT at 3771:4-6 (Heyrich); PX-6082.) At the time Heyrich wrote his memo, neither Heyrich nor Kleinbaum were aware that each of them was considering arbitration. (TT at 3778:23-25 (Hey-rich); TT at 3713:17-3714:2 (Kleinbaum).) On July 6, 2000, Prince forwarded the Heyrich memo to a number of in-house attorneys, including Mike Ross (Deputy General Counsel to Citigroup’s Global Consumer Group), who in turn alerted Kleinbaum and Nelson to Citigroup’s determination that “arbitration should be used in our business unless there are strong countervailing considerations against our implementing it now.” (PX-6081; PX-6082; PX-6085; TT at 3713:3-6 (Kleinbaum); TT at 2523:3-5 (Mike Ross).) After learning of the Heyrich memo, Kleinbaum recommended to Steve Frei-berg (CEO of Citi Cards) that Citi Cards adopt a elass-action-barring arbitration clause in September or October of 2000. (TT at 2430:18-25, 2436:12-2437:2 (Frei-berg); TT at 3729:6-14 (Kleinbaum).) Freiberg accepted Kleinbaum’s recommendation and Citi Cards implemented adoption of such a clause. (TT at 2437:2 (Frei-berg); PX-7540). While Citi intended to notice cardholders by February 2001, operational issues delayed notification until May, June, October and November of 2001. (PX-6086; PX-8179; PX-8180; PX-8181; PX 8350; TT at 3565:25-3567:3 (Nelson).) The clauses became effective in July, November, and December of 2001. (PX-8179; PX-8180; PX-8350.) XII. Additional Meetings of the Ivr-House Working Group The In-House Working Group convened conference calls on August 7 and September 4, 2001. (PX-7567; PX-7635.) The August call agenda noted the “importance of benchmarking, sharing information on current cases and plaintiffs’ claims” and called for each participant to be prepared to introduce two or three cases or issues that “may have implications for the rest of us” or “on which the member seeks input from the group.” (PX-7567.) Any remaining time would be opened for questions “so that we may be able to get some answers to the burning issues our business people keep raising.” (PX-7567.) The August call opened with an antitrust admonition. (PX-7567.) During the September call, participants planned to build on previously discussed topics, including “follow up on counsel issues” and “more on information sharing and benchmarking.” (PX-7635.) While Bank of America had missed the inaugural In-House Working Group call in July, Jan Aniel (Bank of America in-house counsel) joined the August and September calls. (TT at 2323:1-9 (Aniel); PX-7567; PX-7635.) Discover was not invited to participate. On October 2, 2001, Mogilnicki (Wilmer-Hale) invited Arbitration Coalition members to a meeting on October 24, 2001. (PX-8144.) Concurrently, Barry (Capital One) emailed the In-House Working Group seeking to schedule a conference call “this week or early next,” and noting that Capital One “had a few developments on our end that might be worth discussing.” (PX-6074.) One such development was that Capital One had begun noticing cardholders that it had added an arbitration clause. (PX-8072.) Despite Barry’s request, there is no evidence that any In-House Counsel Working Group call was held until November 6, 2001. Mogilnicki invited nine Issuing Banks to the October 24, 2001 meeting of the Arbitration Coalition, including Amex (Heine), Citi (Kleinbaum, Silverwood, Tasheff, and K. Jordan), and Discover (Daily). (PX-8144.) But no attendance list or agenda exists. On November 6, 2001, the In-House Working Group conference call occurred and included Amex (MacDermott), Citi (Tasheff), Bank of America (Aniel), Bank One (Gail), Chase (Condren), Household (Jewell and Leopold), and MBNA (Mullen). (PX-7570.) The group discussed “new cases and developments,” some of which Barry gleaned from Lipsett’s client-update email on class actions. (PX-7570.) After participating- in the conference call, Mullen (MBNA) emailed her colleagues that Chase has an arbitration clause under “active consideration.” (PX-6007),, The information about Chase’s arbitration clause was not publicly available. On November 28, 2001, the Arbitration Coalition met at WilmerHale’s Washington, D.C. office. (PX-6061.) Six Issuing Banks participated, including Amex (Heine) and Citi (Nelson and Tasheff). (PX-6062.) Additional attendees included Chrysler, American Bankers Association, Ugly Duckling Corporation, May Department Stores, Ford, American Financial Services Association, Dollar Financial, GE Capital, Consumer Bankers Association, and the U.S. Chamber of Commerce. (PX-6062.) A phalanx of lawyers, including Lipsett and Mogilnicki (WilmerHale), Kaplinsky (Ballard), and others from Pepper Hamilton, Burr & Forman, and Trout-man Sanders also attended. (PX-6062.) The following week, the In-House Working Group convened another conference call. (PX-7571.) The same Issuing Banks were invited, including Amex (Mac-Dermott) and Citi (Tasheff). (PX-7571.) No attendance lists, agendas or notes exist. XIII. Arbitration Coalition Meetings in 2002 The Arbitration Coalition met in Janu-ary and June 2002 at WilmerHale’s New York offices. (PX-0019; PX-5122.) On January 31, 2002, four Issuing Banks attended, including Citi (Nelson). (PX-0120.) Other attendees included GE Capital, May Department Stores, MONY Life Insurance, and American Financial Services Association. (PX-0120.) Lipsett and Mogilnicki (WilmerHale) and Kaplin-sky (Ballard) also attended, as well as lawyers from Pepper Hamilton and other law firms. (PX-0120.) Arbitration Coalition members were asked to bring status reports on legislative developments relating to arbitration. (PX-0119.) AT & T’s counsel made a presentation concerning Ting v. AT & T, 182 F.Supp.2d 902 (N.D.Cal.2002), aff'd, in part, 819 F.3d 1126 (9th Cir.2003), in which a federal district court struck down AT & T’s arbitration provision. (PX-0119.) In March 2002, settling Defendant Chase noticed cardholders it was implementing a class-action-barring arbitration clause. (PX-8067; PX-8265.) The clause became effective in May 2002. (PX-8067; PX-8265.) On March 19, 2002, the In-House Working Group held its last conference call. Invitees included Amex (MacDermott) and Citi (Tasheff). The agenda included “[m]ethods for disclosing arbitration in solicitations.” (PX-7573.) Barry suggested recent developments in arbitration-related case law as a topic, which could encompass “[a]ny recent useful decisions/orders involving any of your clients that are not published or widely reported.” (PX-7573.) Several days later, Mullen (MBNA) emailed the In-House Working Group inquiring about interactions with cardholders attempting to amend their agreements unilaterally to add alternate arbitration fora. (PX-0049.) Aniel (Bank of America) and Williams (Providian) responded to Mullen’s query. Williams commented that “[t]o date, our arbitration provision has been used sparingly.” (PX-0049.) On June 13, 2002 the Arbitration Coalition convened again. (PX-5122.) In the meeting notice, Mogilnicki highlighted “two issues on which it would be helpful if [the coalition] gathered information from our respective businesses,” namely notices that consumers have elected to use the “Consumer Arbitration Forum” and reports on “the anti-arbitration press, legislation and judicial council developments” in California. (PX-5122.) Six Issuing Banks sent representatives, including Citi (Nelson and Tasheff). (PX-6027; PX-8030.) Other institutions also participated, including GE Capital, Ford, Chrysler, Dollar Financial, American Bankers Association, and Ugly Duckling. (PX-6027.) MacDonald, Lipsett and Mogilnicki (Wilmer-Hale), and Kaplinsky (Ballard) also attended. (PX-6027.) Before the June meeting, Mogilnicki (WilmerHale) opined to a “core group of arbitration group members” including Amex (Heine and MacDermott), that “relatively few members of the arbitration group were committed to attending our last meeting and I think there’s been a trend in that direction over the past year.” (PX-5230.) XIV. • Arbitration Coalition Meetings in 2003 The Arbitration Coalition did not meet again until April 22, 2003 at WilmerHale’s Washington, D.C. office. (PX-5127; PX-8030.) Eight Issuing Banks attended, including Amex (Heine and Stuart Alderoty, Chief Litigation Counsel); Citi (Nelson and Tasheff), and Discover. (Swift and Op-penheim). (PX-5127.) In addition to Lipsett and Mogilnicki (WilmerHale) and Kaplinsky (Ballard), GE Capital, American Financial Services Association, Spotswood LLC, American Bankers Association, National Retail Federation, TCF Financial, and Consumer Bankers Association representatives also attended. (PX-5127; PX-8030.) Amex representatives and several others participated in a “field trip” to the Supreme Court to hear oral argument in Green Tree Financial Corp. v. Bazzle, 539 U.S. 444, 123 S.Ct. 2402, 156 L.Ed.2d 414 (2003). (TT at 2904:17-22 (Lipsett); PX-5127; PX-5128). This was the last in-person meeting of the Arbitration Coalition. Two additional teleconferences were held in 2003, one on June 25 and another on October 16. (PX-6067; PX-8147.) All of the Issuing Banks except Bank of America were invited to participate in both conference calls, including Amex (Heine and MacDermott), Citi (Kleinbaum, Nelson, Silverwood, Tasheff, and Jordan), and Discover (Daily). (PX-6067; PX-8147.) No attendance sheets for these conference calls exist. XV. Discover’s Opt-Out Provision In January 2003, Discover noticed cardholders regarding a new “opt out” provision that allowed them to reject its arbitration clause by sending a rejection notice by March 25, 2003. (PX-8085.) If Discover did not recéive.a rejection notice by that date, the provision became final as to that cardholder. XVI. WilmerHale’s and Kaplinsky’s Representation of the Issuing Banks Before 2003, WilmerHale represented Amex, Citi, Bank of America, Bank One/ First USA, Capital One, Household, MBNA, and Providian. (TT at 2944:15-2946:17 (Lipsett).) And at some point before 2005, Lipsett represented Chase. (TT at 2946:6-7, 2948:15-18 (Lipsett).) He also represented MBNA in the Currency Conversion multidistrict litigation regarding foreign currency exchange fees. (TT at 2925:6-8 (Lipsett).) Kaplinsky assisted Amex, Capital One, Citi, and Discover with their arbitration clauses. (TT at 1936:17-1937:14 (Swift); TT at 2177:7-99 (Barry); TT at 3443:3-13 (Heine); TT at 3565:12-21 (Nelson).) XVII.The Credit Card Industry Is Oli-gopolistic The Issuing Banks’ collective market share of the general purpose credit card market is very high. In 1999, Amex, Citi, Discover, First USA, MBNA, Chase, Bank of America, Household, Capital One, and Providian had a collective market share of 82.91% as measured by transaction volume and 79.82% as measured by outstanding balances. (PX-8539A; TT at 1411:8-1412:11, 1413:2-1414:13 (Tollison).) By 2005, this percentage had risen to 86.53% measured by transaction volume and 87.64% measured by outstanding balances, accounting for the acquisition of First USA by Chase and MBNA by Bank of America. (PX-8539C; TT at 1415:19-1417:2 (Tolli-son).) In 2009, these percentages dropped slightly, but the Issuing Banks still held a collective market share of 81.9% as measured by transaction volume and 81.21% as measured by outstanding balances, accounting, for Providian’s acquisition by Chase. (PX-8539D; TT at 1417:4-23 (Tollison).) There are high barriers to entry into the general purpose credit card market because it is difficult for a new bank to gain sufficient market share to compete with the Issuing Banks. (TT at 1421:6-1422:9 (Tollison).) Because such a small number of firms hold nearly 80% of the market share, the credit card market is highly concentrated and oligopolistic. (TT at 1420:7-13 (Tollison).) Oligopolistic markets are characterized by mutually independent behavior among firms, meaning that what is optimal for a firm depends on the conduct of the firm’s competitors. (TT at 1419:14-24 (Tollison).) XVIII. Arbitration and Consumers The parties presented expert testimony on issues relating to consumer attitudes about arbitration and the impact those attitudes could have on the claims at issue in this lawsuit. This Court credits the testimony of these expert witnesses as described below. During the period of the alleged conspiracy (May 1999-October 2003), arbitration clauses were not salient to consumers. (TT at 2727:21-25 (Bar-Gill); TT at 4132:15-4133:6 (Elzinga).) Salience describes the prominence to consumers of various aspects of a multidimensional product. (TT at 2657:15-2658:3 (Bar-Gill).) Those product aspects which are visible or meaningful to consumers are “salient.” (TT at 2722:1-6 (Bar-Gill).) For example, the price of a can of soda is likely salient to consumers, but the source of aluminum used to make the can may not be. Generally, firms are expected to compete as to salient terms, but not as to non-salient terms. (TT at 2722:24-2723:4 (Bar-Gill).) The salience of any given term may change over time. (TT at 2723:24-2724:1 (Bar-Gill).) There are many examples of terms in the credit card and banking industry rising to salience. For instance, Annual Percentage Rates (“APRs”) were not salient until the late 1980s or 1990s, late and over-the-limit fees were not salient until Citi and Discover introduced cards without these fees, and foreign currency exchange fees were not salient until issuers such as Capital One, Chase, and Amex advertised cards without them in the wake of the Currency Conversion multidistrict litigation. (TT at 2724:6-2726:4 (Bar-Gill).) Examples of emerging salience abound in other consumer contracts and include ATM usage fees and early termination penalties in cellular telephone contracts. (TT at 2726:5-2727:6 (Bar-Gill).) There are generally two ways in which a non-salient term can become salient. (TT at 2730:20-22 (Bar-Gill).) One is education by sellers, including advertising campaigns that draw attention to particular product features. (TT at 2730:23-2731:1 (Bar-Gill).) Competitors often force obscure terms to salience in order to distinguish and market their products. (TT at 2744:10-12 (Bar-Gill).) For example, Capital One’s “No Hassle Rewards” campaign drew attention to the fact that some of its competitors imposed conditions such as blackout dates that made redeeming rewards like frequent flyer miles difficult. (TT at 2744:13-21 (Bar-Gill).) Learning by consumers is the other means by which a term can rise to salience. (TT at 2731:2-3 (Bar-Gill).) Consumer learning occurs in a number of contexts. First, a consumer may have a personal experience that makes a previously obscure term salient. (TT at 2733:18-19 (Bar-Gill).) For example, a consumer may try to return merchandise and find the merchant offers only store credit, not cash. As a result, return policies become salient to the consumer, who starts to consider them before making purchases. Consumers can also learn from the experiences of others, including through the media. (TT at 2733:19-25 (Bar-Gill).) Consumer groups and consumer advocates may facilitate a term’s rise to salience, such as by alerting consumers to check their credit card statements for “hidden” charges. (TT at 2734:19-21 (Bar-Gill).) It is often difficult to predict whether a term will become salient. (TT at 2735:8-10 (Bar-Gill).) Seller education remains under the control of sellers, and it is hard to know what will capture the attention of consumers, advocates, or regulators. (TT at 2735:8-18 (Bar-Gill).) Collusion can delay the rise to salience of product features that would normally become salient under competitive conditions. (TT at 2745:3-12 (Bar-Gill