Court filing

Exhibit 1 — United States v. Visa Inc. (Dkt. 40.1)

Record facts

Court	U.S. District Court for the Southern District of New York
Filed	2024-12-16

U.S. District Court for the Southern District of New York · No. 1:24-cv-07214-JGK · Doc. 40-1 · 2024-12-16 · Docket on CourtListener

Full text

EXHIBIT 1
Case 1:24-cv-07214-JGK Document 40-1 Filed 12/16/24 Page 1 of 22

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

Plaintiff,

VISA INC.,

Defendant.

Case No. 1:24-cv-07214-JGK-SLC

STIPULATED PROTECTIVE ORDER
To ensure the efficient and prompt resolution of this Action, facilitate discovery by the
Parties litigating this Action, and protect Confidential Information and Highly Confidential
Information from improper disclosure or use, the Parties stipulate to the provisions set forth
below. The Court, upon good cause shown and according to Federal Rule of Civil Procedure
26(c)(1) and all applicable Local Rules, ORDERS as follows:
I.
GENERAL PROVISIONS
A.
Definitions
1.
“Action” means the above-captioned action pending in this Court, including any
related discovery, pretrial, trial, post-trial, or appellate proceedings.
2.
“Confidential Information” means the portion of any Investigation Materials or
Litigation Materials that contains (a) Personally Identifiable Information (PII) or (b) trade secrets
or other confidential research, development, or commercial information as such terms are used in
Federal Rule of Civil Procedure 26(c)(1)(G). Provided, however, that any portion of any
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Investigation Materials or Litigation Materials, except for PII, that has been published or
otherwise made publicly available is not Confidential Information.
3.
“Defendant” means Visa Inc., and its employees, agents, representatives, parents,
subsidiaries, affiliates, successors, and assigns.
4.
“Disclosed” means shown, divulged, revealed, produced, described, transmitted,
or otherwise communicated, in whole or in part.
5.
“Document” means any document, data, or electronically stored information as
such term is used in Federal Rule of Civil Procedure 34(a).
6.
“Highly Confidential Information” means any Confidential Information which the
Protected Person producing it reasonably believes is likely to result in economic harm or
competitive disadvantage if it is disclosed.
7.
“Investigation” means any pre-complaint review, assessment, or investigation by
any Party of the Defendant’s conduct alleged in the Complaint.
8.
“Investigation Materials” means non-privileged documents, data,
communications, transcripts of testimony, or other materials relating to the Investigation,
including but not limited to those provided pursuant to the Antitrust Civil Process Act, 15 U.S.C.
§§ 1311-1314, or the Hart-Scott-Rodino Antitrust Improvements Act, 15 U.S.C. § 18a, that
(a) any non-Party provided to any Party; (b) any Party provided to any non-Party; or (c) any
Party provided to any opposing Party.
9.
“Litigation Materials” means non-privileged documents, data, communications,
transcripts of testimony, or other materials relating to this Action that (a) any non-Party provides
to any Party; (b) any Party provides to any non-Party; (c) any Party provides to any opposing
Party. Provided, however, that any written comment relating to a proposed consent judgment in
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this Action that is submitted pursuant to the Antitrust Procedures and Penalties Act (Tunney
Act), 15 U.S.C. § 16(b)–(h), is not Litigation Materials.
10.
“Outside Counsel of Record” means the law firm(s) representing Defendant in
this Action, including any attorneys, paralegals, and other professional personnel (including IT
professionals and support staff) employed by such law firm(s) and assigned to this Action.
11.
“Party” means the United States, any state or commonwealth that joins this
Action, or Defendant. “Parties” means collectively the United States, any state or commonwealth
that joins this Action, and Defendant in this Action.
12.
“Person” means any natural person, corporate entity, partnership, association,
joint venture, governmental entity, or trust.
13.
“Personally Identifiable Information” or “PII” means a natural person’s (a) Social
Security number; (b) driver’s license number, or state or federal government identification
number, or foreign country equivalent identification number; (c) passport number; (d) financial
account number; (e) credit or debit card number; (f) name, address, or phone number in
combination with their date of birth; or (e) personal health information.
14.
“Plaintiff” means the United States and its employees, agents, and representatives.
In the event that a U.S. state or commonwealth joins this Action, the term “Plaintiff” will include
the United States and all states or commonwealths that join this Action.
15.
“Pretrial Period” means the time between the filing of this Action and the first day
of any Trial of this Action.
16.
“Protected Person” means any Person, including any Party or non-Party, that
provided Investigation Materials or provides Litigation Materials.
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B.
Computing Time
17.
Unless otherwise specified, time will be computed according to Federal Rule of
Civil Procedure 6(a).
C.
Persons Bound by This Order
18.
This Order is binding on the Parties, their attorneys, successors, representatives,
administrators, assigns, parents, subsidiaries, divisions, affiliates, employees, agents, contractors,
experts, and consultants, all non-Parties providing discovery in this Action, and all other
interested persons with actual or constructive notice of this Order, upon pain of contempt.
D.
Notice of This Order to Non-Party Protected Persons
19.
Within fifteen (15) business days of the Court’s entry of this Order, each Party
must send by email, overnight mail, or hand delivery a copy of this Order to each non-Party
Protected Person (or, if represented by counsel, the non-Party Protected Person’s counsel) that
provided Investigation Materials to that Party.
20.
Any Party that seeks discovery related to this Action from any non-Party must
include a copy of this Order when serving a discovery request or subpoena on the non-Party. If
any Party sent a discovery request or subpoena to any non-Party prior to entry of this Order, that
Party must send a copy of this Order to the non-Party within two (2) business days of entry of
this Order.
E.
Modifications of This Order
21.
If a non-Party Protected Person determines that this Order does not adequately
protect its Confidential Information or Highly Confidential Information, it may, within ten (10)
business days after receiving notice of this Order pursuant to Paragraph 19 or Paragraph 20, file
a motion seeking additional protection from the Court for its Confidential Information or Highly
Confidential Information. If a non-Party Protected Person timely files such a motion, the
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information for which additional protection has been sought may not be disclosed until the Court
has rendered a decision on the motion, unless the movant and the Parties reach an agreement that
permits disclosure of the Confidential Information or Highly Confidential Information while the
motion is pending.
22.
Nothing in this Order limits any Person, including members of the public, a Party,
or an interested non-party, from seeking additional protection or modification of this Order upon
a motion duly made according to the Local Rules of this Court, including, without limitation, an
order that certain information need not be produced at all or is not admissible evidence in this
Action or any other proceeding.
F.
Privacy Act
23.
This Order, and any subsequent order of this Court governing the United States’
production of any documents, data, communications, transcripts of testimony, or other materials
in this Action, constitutes a court order within the meaning of the Privacy Act, 5 U.S.C. § 552a
(b)(11).
II.
PROCEDURES FOR DESIGNATING CONFIDENTIAL INFORMATION AND
HIGHLY CONFIDENTIAL INFORMATION
A.
Designating Highly Confidential Information in Investigation Materials
24.
All Investigation Materials or any other materials that are entitled to
confidentiality protections pursuant to the Antitrust Civil Process Act, 15 U.S.C. § 1313(c) (3),
or the Hart-Scott-Rodino Antitrust Improvements Act, 15 U.S.C. § 18a(h), must be treated as
Highly Confidential Information during the Pretrial Period unless that designation is successfully
challenged under the procedures set forth in Paragraphs 43-44 below.
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B.
Designating Confidential Information or Highly Confidential Information in
Litigation Materials
25.
The following procedures govern the process for Protected Persons (including
Parties) to designate Confidential Information or Highly Confidential Information contained in
any Litigation Materials. By so designating, the Protected Person (and counsel, if any) represents
to the Court that it in good faith believes that the information constitutes Confidential
Information or Highly Confidential Information as defined in Paragraphs 2 and 6 of this Order.
Any Litigation Materials not designated in the manner required by this Order will not be treated
as Confidential Information or Highly Confidential Information, even if such information was
subject to a prior designation of confidentiality.
26.
Documents Produced in Native Format. When a Protected Person produces
electronically stored documents in native file format, the Protected Person must designate any
Confidential Information by (a) appending the suffix “CONFIDENTIAL – SUBJECT TO
PROTECTIVE ORDER” or “HIGHLY CONFIDENTIAL – SUBJECT TO PROTECTIVE
ORDER” to the file name or document production number, or (b) including the confidentiality
designation in reasonably accessible metadata associated with the file. When documents that
were produced in native file format are printed for use during a deposition, for a court
proceeding, or for disclosure to any Person described in Paragraphs 34 or 35, the Party printing
the file must affix to the printed version a label containing the production number and the
confidentiality designation associated with the document.
27.
Documents and Data Produced in Hard Copy or Non-Native Format. When a
Protected Person produces documents in hard copy, image files, or other non-native file formats,
the Protected Person must designate Confidential Information or Highly Confidential
Information by stamping or otherwise marking each page or image that contains Confidential
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Information with the designation “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER”
or “HIGHLY CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” in a manner that will
not interfere with legibility.
28.
Testimony. All transcripts of depositions taken in this Action will be treated as
Highly Confidential Information in their entirety for sixty (60) days after the date when a
complete and final copy of the transcript has been made available to the deponent (or the
deponent’s counsel). Within twenty-one (21) days of receiving a final transcript, a Protected
Person may designate any portion of a deposition transcript or any portion of a deposition exhibit
as containing Confidential Information or Highly Confidential Information by highlighting,
stamping, or otherwise clearly marking the information as Confidential or Highly Confidential
and by providing for future public use a copy of the deposition transcript and exhibits with the
Confidential Information and/or Highly Confidential Information redacted. Any portion of a
transcript or portion of a deposition exhibit not designated in the manner required by this
Paragraph 28 will not be treated as Confidential Information or Highly Confidential Information,
even if the document(s) that became the deposition exhibit(s) or information that is the subject of
the deposition testimony was subject to a prior designation of confidentiality.
C.
Notice of Confidentiality Designations to the Parties
29.
Any designation of Confidential Information or Highly Confidential Information
or other written notice to the Parties required by this Order must be provided by email, overnight
mail, or hand delivery to the following counsel for the Parties:
For Plaintiff the United States:

Edward Duffy
Bennett Matelson
Michele Trichler
U.S. Department of Justice, Antitrust Division
450 Fifth Street NW, Suite 4000
Washington, DC 20530
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Edward.Duffy@usdoj.gov
Bennett.Matelson@usdoj.gov
Michele.Trichler@usdoj.gov

For Defendant Visa Inc.:

Kieran Gostin
Wilkinson Stekloff LLP
2001 M Street NW, 10th Floor
Washington, D.C. 20036
kgostin@wilkinsonstekloff.com

D.
Inadvertent Failure to Designate Confidential Information or Highly
Confidential Information
30.
A Protected Person that produced Litigation Materials prior to receiving a copy of
this Order and did not designate such information as Confidential Information or Highly
Confidential Information at the time it was produced may subsequently designate such materials
as Confidential Information or Highly Confidential Information according to the terms of this
Order following receipt of this Order.
31.
If at any time prior to the trial of this Action a Protected Person realizes that it
inadvertently failed to designate Confidential Information or Highly Confidential Information
that it previously produced in Litigation Materials, it may so designate such information by
following the procedures of this Order. The Parties must thereafter treat the information
according to the Protected Person’s new designation; provided, however, that no prior disclosure
of newly designated Confidential Information or Highly Confidential Information violates this
Order. The disclosure of any information for which disclosure was proper when made will not be
deemed improper regardless of any subsequent confidentiality designation.
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III.
USE AND DISCLOSURE OF CONFIDENTIAL INFORMATION
A.
Limited Use and Disclosure of Confidential Information and Highly
Confidential Information
32.
Except as provided by Paragraph 37 of this Order, all Confidential Information
and Highly Confidential Information produced by a Party or a non-Party Protected Person as part
of this Action may be used solely for the conduct of this Action and must not be used for any
business, commercial, competitive, personal, or other purpose. Provided, however, this Order
does not preclude another court from finding that Confidential Information or Highly
Confidential Information produced in this Action is relevant and subject to disclosure in another
case.
33.
Any Person that becomes subject to a motion to disclose Confidential Information
or Highly Confidential Information protected by this Order in another case must promptly notify
the Party or non-Party Protected Person that designated the Confidential Information or Highly
Confidential Information of the motion so the Protected Person has an opportunity to appear in
the other case and be heard on whether that information should be disclosed.
34.
Except as provided by Paragraph 37 or pursuant to a court order, Confidential
Information may be disclosed only to the following Persons:
(a)
the Court and all Persons assisting the Court in this Action, including
magistrates, law clerks, court reporters, and stenographic or clerical personnel;
(b)
any special master, mediator, arbitrator, trustee, or monitor that the Parties
engage in this Action or that this Court appoints;
(c)
counsel for Plaintiff, including any attorneys, paralegals, and other
professional personnel employed by Plaintiff (including support and IT staff), and any agents or
independent contractors retained by Plaintiff whose functions require access to the information;
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(d)
Outside Counsel of Record for Defendant, including any attorneys,
paralegals, and other professional personnel (including support and IT staff) that such outside
counsel assigns to this Action, and agents or independent contractors retained by Defendant to
assist in this Action whose functions require access to the information;
(e)
persons who are the authors, addressees, recipients, or custodians of the
Confidential Information and persons who counsel for a Party believes in good faith previously
received or had access to the Confidential Information, unless the person indicates they did not
have access to the information;
(f)
any Person retained by a Party to serve as a testifying or consulting expert
in this Action, including employees of the firm with which the expert or consultant is associated,
employees of any firm retained by a Party to assist a testifying or consulting expert in this
Action, and independent contractors who assist the expert’s work in this Action, provided they
first execute an Agreement Concerning Confidentiality in the form attached as Appendix A;
(g)
outside vendors or service providers (such as e-discovery vendors,
contract attorneys, and printing service providers) retained by a Party to assist that Party in this
Action, provided they first execute an Agreement Concerning Confidentiality in the form
attached as Appendix A;
(h)
outside trial consultants (including, but not limited to, graphics consultants
and jury consultants) retained by a Party to assist that Party in this Action, provided they first
execute an Agreement Concerning Confidentiality in the form attached as Appendix A;
(i)
stenographers engaged to transcribe, and videographers engaged to
record, depositions conducted in this Action; and
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(j)
five in-house attorneys for Defendant, not involved in business decisions,
to whom disclosure is reasonably necessary for this litigation and whose names must be
disclosed to Plaintiff at least five business days before being given access to Confidential
Information, provided that the in-house attorneys must first execute an Agreement Concerning
Confidentiality in the form of Appendix A attached hereto. For purposes of this paragraph, the
phrase “involved in business decisions” does not include the rendering of legal advice solely as
to litigation, compliance, regulatory, or liability issues related to business decisions. To the
extent Defendant seeks to change the five in-house attorneys that may receive access to
Confidential Information, Defendant must provide notice to Plaintiff at least 10 business days
prior to the effective date of such change.
35.
Except as provided by Paragraph 36 or pursuant to a court order, Highly
Confidential Information may be disclosed only to the persons set forth in Paragraph 34(a)-(i)
above and under the same requirements to execute an Agreement Concerning Confidentiality in
the form attached as Appendix A.
36.
Each Person identified in Paragraphs 34 and 35 of this Order to whom
Confidential Information or Highly Confidential Information is disclosed may not disclose that
Confidential Information or Highly Confidential Information to any other Person, except as
otherwise provided by this Order.
37.
Nothing in this Order:
(a)
limits a Protected Person’s use or disclosure of its own Confidential
Information or Highly Confidential Information;
(b)
prevents disclosure of Confidential Information or Highly Confidential
Information with the consent of the Protected Person that designated the material;
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(c)
prevents disclosure by a Party of Confidential Information or Highly
Confidential Information (i) that is or has become publicly known through no fault of that Party;
(ii) that was lawfully acquired by or known to that Party independent of receipt during the
Investigation or this Action; (iii) that was previously produced, disclosed, or provided to that
Party without an obligation of confidentiality and not by inadvertence or mistake; or (iv)
pursuant to a court order;
(d)
requires Plaintiff to withdraw or redact the Complaint; or
(e)
prevents the United States’ retention, use, or disclosure of Confidential
Information or Highly Confidential Information outside the context of this Action (i) to the
extent permitted or required by law, court order, or regulation; or (ii) for law enforcement
purposes, including for the purpose of securing compliance with a Final Judgment in this Action
and in other legal proceeding in which the United States is a party.
B.
Inadvertent Disclosure of Confidential Information
38.
In the event Confidential Information or Highly Confidential Information is
disclosed to a Person not authorized to receive it under this Order, the Party responsible for the
disclosure must promptly notify the Protected Person whose Confidential Information or Highly
Confidential Information has been disclosed and provide all known relevant information
concerning the nature and circumstances of the disclosure. The Party responsible for the
disclosure must also promptly take all reasonable measures to retrieve the improperly disclosed
material and ensure there is no additional unauthorized disclosure or use of the information.
39.
Unauthorized or inadvertent disclosure of Confidential Information or Highly
Confidential Information does not change the confidential status of any disclosed material or
waive the Protected Person’s right to maintain the disclosed material as Confidential Information
or Highly Confidential Information.
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C.
Motions to Seal Pretrial Court Filings
40.
After the entry of this Order, during the Pretrial Period if any Confidential
Information or Highly Confidential Information is included in a pleading, motion, exhibit, or
other paper filed with the Court, the filing Party must file such Confidential Information or
Highly Confidential Information under seal. The Protected Person that designated the material as
Confidential Information or Highly Confidential Information may not oppose the filing of such
Confidential Information or Highly Confidential Information under seal. The Parties and any
Protected Person must comply with Section VI of the Court’s Individual Practices, the Court’s
standing order, 19-mc-00583, and ECF Rules & Instructions, section 6, with respect to seeking
Court approval for sealing and/or redacting filings.
41.
Filing another Person’s Confidential Information or Highly Confidential
Information under seal does not constitute agreement by the filing Party that the information is
properly designated, and nothing in this Order should be construed to prevent a Party from later
challenging the confidentiality designation of information that was previously filed under seal.
D.
Challenging Confidentiality Designations During the Pretrial Period
42.
This Order does not preclude or prejudice a Protected Person or Party from
arguing for or against any confidentiality designation, establish any presumption that a particular
confidentiality designation is valid, or alter the burden of persuasion that would otherwise apply
in a dispute over whether something constitutes Confidential Information or Highly Confidential
Information.
43.
During the Pretrial Period, any Party that objects to the treatment or designation
of Investigation Materials or Litigation Materials as Confidential Information or Highly
Confidential Information—including a new confidentiality designation made pursuant to
Paragraph 31—may provide written notice to the Protected Person who made the designation
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and to all Parties identifying the challenged designation and stating with particularity the grounds
for its objection. All materials objected to must continue to be treated as Confidential
Information or Highly Confidential Information pending resolution of the dispute by agreement
between the objecting Party and the Protected Person or by the Court.
44.
If the objecting Party and the Protected Person cannot reach agreement within
fourteen (14) days of the Party’s written notice, the Protected Person may file a motion for a
protective order with the Court to maintain the confidentiality of the challenged material. The
Protected Person bears the burden of persuading the Court that the material is Confidential
Information or Highly Confidential Information as defined in Paragraphs 2 and 6 of this Order. If
the Protected Person fails to timely address the dispute to the Court in accordance with this
Paragraph 44, or if the Court finds the designation inapplicable, the information will no longer be
treated as Confidential Information or Highly Confidential Information in this Action.
IV.
USE OF CONFIDENTIAL INFORMATION AND HIGHLY CONFIDENTIAL
INFORMATION AT TRIAL AND IN POST-TRIAL FILINGS
A.
Notice to Non-Party Protected Persons of Confidential Information and
Highly Confidential Information to be Used at Trial
45.
Within seven (7) days of the Parties’ exchange of their preliminary trial exhibit
lists, the Parties must notify any non-Parties (or the non-Party’s counsel if represented by
counsel) that produced any of the exhibits on their preliminary trial exhibit lists. The notification
must identify the exhibit(s) produced by the non-Party and include a copy of this Order.
46.
Within seven (7) days of the Parties’ exchange of their preliminary deposition
designations, the Parties must notify any non-Party deponents (or the deponent’s counsel, if
represented by counsel) whose testimony appears in their preliminary deposition designations.
The notification must identify the designated deposition testimony and include a copy of this
Order.
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B.
Sealing Confidential Information and Highly Confidential Information at
Trial
47.
The Parties must meet and confer in good faith with each other and with any
affected non-Party Protected Person regarding the disclosure and use of Confidential Information
or Highly Confidential at Trial before filing any motions with the Court to seal Confidential
Information or Highly Confidential Information at Trial.
48.
No later than twenty-one (21) days before the Final Pretrial Conference in this
Action, any Party or non-Party Protected Person that seeks to prevent its Confidential
Information or Highly Confidential Information contained in a trial exhibit or designated
deposition testimony from being disclosed on the public record at Trial must file a motion with
the Court seeking to seal such information at Trial by following the procedures set forth in the
Court’s Individual Practices, Section VI, Standing Order 19-mc-00583, and ECF Rules &
Instructions, section 6. The movant bears the burden of persuading the Court that the material
should be sealed at Trial. Any opposition to a motion to seal must be filed within fourteen (14)
days after the motion is filed. Replies to a motion to seal may only be filed with leave of the
Court upon a showing of good cause.
49.
If the Court grants a motion to seal brought pursuant to Paragraph 48, the
Confidential Information or Highly Confidential Information that is the subject of the motion
must be sealed and not made available on the public record for purposes of all arguments,
presentations, and witness examinations at Trial, unless the Court orders otherwise.
50.
Absent a ruling by the Court granting a motion to seal brought pursuant to
Paragraph 48, any information previously designated by a Protected Person as Confidential
Information or Highly Confidential Information that appears on any Party’s final trial exhibit list
or final deposition designations, and that is admitted into evidence at trial, will no longer be
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treated as Confidential Information or Highly Confidential Information under the terms of this
Order, will be disclosed on the public record, and any arguments, presentations, and witness
examinations about such information likewise will be disclosed on the public record.
C.
Sealing Post-trial Court Filings
51.
If a Party includes in any post-trial motion, brief, findings of fact, conclusions of
law, or other paper filed with the Court any documents, data, testimony, or other materials or
information that were sealed during Trial under the terms of this Order or any other Order of the
Court, the Party must file such information under seal. The Protected Person that requested
sealing of such information during Trial may not oppose the motion to file under seal and the
filing Party need not meet and confer with the Protected Person before filing the Confidential
Information or Highly Confidential Information under seal.
52.
Any information that appears on any Party’s final trial exhibit list or final
deposition designations and was admitted into evidence at trial that was not sealed during Trial
under the terms of this Order or any other order of the Court need not be sealed in any post-trial
motion, brief, findings of fact, conclusions of law, or other paper filed with the Court and may be
disclosed on the public record.
V.
INADVERTENT PRODUCTION OF PRIVILEGED INFORMATION
53.
The disclosure of any Investigation Materials or Litigation Materials subject to
attorney-client privilege, deliberative process privilege, work-product protection, or other
applicable legal or evidentiary privilege (“Privileged Material”) is not a waiver in this Action or
in any other federal or state proceeding, provided that (a) the disclosure was inadvertent; (b) the
Person that disclosed the Privileged Material used reasonable efforts to prevent such disclosure;
and (c) the Person that disclosed the Privileged Material promptly took reasonable steps to
rectify the error, including following Federal Rule of Civil Procedure 26(b)(5)(B).
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54.
The Person asserting the privilege bears the burden of proof with respect to a
claim or assertion of privilege. A Person claiming inadvertent production of Privileged Material
must first make a good-faith determination that such materials are privileged or otherwise
protected from disclosure under applicable law and rules. The Person must then promptly notify
all Parties that received the Privileged Material and provide sufficient information for such
Parties to assess the claim of privilege, in the form of a privilege log as outlined in Federal Rule
of Civil Procedure 26(b)(5). If a receiving Person discovers a document that it believes to be
Privileged Material, the receiving Person must promptly notify the designating Person; provided,
however, that no Person will be found to have violated this Order for failing to recognize
inadvertently produced Privileged Material.
55.
After discovering or being notified of a claim of inadvertent production of
Privileged Material, any receiving Person (a) may not use or disclose the Privileged Material
until the claim is resolved, except as permitted by Federal Rule of Civil Procedure 26(b)(5),
(b) must return, sequester, or destroy all copies of the Privileged Material in its possession, and
(c) must take reasonable steps to retrieve the Privileged Material from any Person(s) to whom the
receiving Person disclosed it before being notified of or discovering the inadvertent production.
The designating Person must retain a copy of the Privileged Material until the resolution or
termination of this Action.
VI.
PROCEDURES UPON TERMINATION OF THIS ACTION
56.
The obligations imposed by this Order survive the termination of this Action
unless the Court orders otherwise.
57.
Within ninety (90) days after the expiration of the time for appeal of an order,
judgment, or decree terminating this Action, all Persons having received Confidential
Information or Highly Confidential Information must make a good faith effort to return all copies
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of such Confidential Information or Highly Confidential Information that has not otherwise been
made public during this Action to the Protected Person that produced it (or the Protected
Person’s counsel, if represented by counsel), or to destroy or delete all copies of such
Confidential Information or Highly Confidential Information, unless the Confidential
Information or Highly Confidential Information may be retained pursuant to Paragraph 37,
Paragraph 59, or Paragraph 60. All Confidential Information or Highly Confidential Information
returned to the Parties or their counsel by the Court likewise must be disposed of in accordance
with this Order.
58.
Within ninety (90) days after the expiration of the time for appeal of an order,
judgment, or decree terminating this Action, all Persons having received Confidential
Information or Highly Confidential Information must certify compliance with Paragraph 57 of
this Order in writing to the Party or Protected Person that produced the Confidential Information
or Highly Confidential Information.
59.
Counsel for the Parties will be entitled to retain court papers, deposition, hearing,
and trial transcripts and exhibits, and work product containing Confidential Information or
Highly Confidential Information, provided that the Parties and their counsel do not disclose the
portions of those materials containing Confidential Information or Highly Confidential
Information except pursuant to a court order or with the consent of the Protected Person that
produced the Confidential Information or Highly Confidential Information, or as otherwise
permitted by this Order.
60.
Expert witnesses for the Parties, and any firm retained by a Party to assist an
expert witness in this Action will be entitled to retain their own expert reports, their own
deposition and trial transcripts and exhibits, and their own work product, even if such materials
Case 1:24-cv-07214-JGK Document 40-1 Filed 12/16/24 Page 19 of 22

contain Confidential Information or Highly Confidential Information, provided such Persons
have executed Appendix A to this Order and do not disclose the portions of those materials
containing Confidential Information or Highly Confidential Information except pursuant to a
court order or with the consent of the Protected Person that produced the Confidential
Information or Highly Confidential Information.
61.
Counsel for a Party that disclosed Confidential Information or Highly
Confidential Information to a Person identified in Paragraph 34 subparagraphs (f), (g), or (h) and
Paragraph 35 of this Order must obtain and retain the signed version of the Agreement
Concerning Confidentiality in the form attached as Appendix A for a period of at least one year
following the termination of this Action.
62.
This Court retains jurisdiction to resolve any disputes arising out of this Order
after termination of this Action.
63.
This Order is not binding on the Court or Court personnel. The Court reserves the
right to amend it at any time.

Case 1:24-cv-07214-JGK Document 40-1 Filed 12/16/24 Page 20 of 22

Dated: December 16, 2024
Agreed By:

/s/ Edward Duffy

Edward Duffy
Bennett J. Matelson
Michele Trichler
United States Department of Justice
Antitrust Division
450 Fifth Street, N.W., Suite 4000
Telephone: (202) 812-4723
Facsimile: (202) 514-7308
Edward.duffy@usdoj.gov
Bennett.Matelson@usdoj.gov
Michele.Trichler@usdoj.gov
Counsel for Plaintiff, the United States

/s/ Beth A. Wilkinson

Beth Wilkinson (SBN NY 2181592)
Brian Stekloff (admitted pro hac vice)
Kieran Gostin (SBN NY 4847653)
Roxana Guidero (admitted pro hac vice)
WILKINSON STEKLOFF LLP
2001 M Street NW, 10th Floor
Washington, DC 20036
Telephone: (202) 847-4000
Facsimile: (202) 847-4005
bwilkinson@wilkinsonstekloff.com
bstekloff@wilkinsonstekloff.com
kgostin@wilkinsonstekloff.com
rguidero@wilkinsonstekloff.com

Anne P. Davis (admitted pro hac vice)
Jonathan Ian Gleklen (admitted pro hac
vice)
ARNOLD & PORTER KAYE
SCHOLER LLP
601 Massachusetts Avenue NW
Washington, D.C. 20001
Telephone: (202) 942-6197
Facsimile: (202) 942-5999
anne.davis@arnoldporter.com
jonathan.gleklen@arnoldporter.com
Counsel for Defendant Visa Inc.

SO ORDERED this __ of __________, 20__.

____________________________________

U.S. District Judge

Case 1:24-cv-07214-JGK Document 40-1 Filed 12/16/24 Page 21 of 22

APPENDIX A
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

Plaintiff,

VISA INC.

Defendant.

Case No. 1:24-cv-07214-JGK-SLC

AGREEMENT CONCERNING CONFIDENTIALITY
I, _______________, am employed by __________________ in the position of
______________. I certify as follows.
1.
I have read the Protective Order entered in the above-captioned action and
understand its terms.
2.
I agree to be bound by the terms of the Protective Order. I agree to use the
information provided to me only as explicitly permitted by the Protective Order.
3.
I understand that my failure to abide by the terms of the Protective Order will
subject me, without limitation, to civil and criminal penalties for contempt of Court.
4.
I submit to the jurisdiction of this Court solely for the purpose of enforcing the
terms of the Protective Order and freely and knowingly waive any right I may otherwise have to
object to the jurisdiction of this Court.

Dated: _________________, 20__
Signed: _________________________
Case 1:24-cv-07214-JGK Document 40-1 Filed 12/16/24 Page 22 of 22

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