Free Complaint - District Court of California - California

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 1 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Matthew S. Hale, Esq. Calf. State Bar No. 136690 45 Rivermont Drive, Newport News, VA 23601 Mailing Address: P.O. Box 1951 Newport News, VA 23601 Telephone No. (757) 596-0309 Facsimile No. (757) 596-3141 Attorney for Plaintiff, SAMUEL A. BERRY

ELECTRONICALLY FILED
SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE CIVIL COMPLEX CENTER

Nov 14 2005
ALAN SLATER, Clerk of the Court by S. LILIO

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR ORANGE COUNTY SAMUEL A. BERRY, as an individual and, ) ) on behalf of others similarly situated, ) ) ) Plaintiff, ) ) vs. ) ) ) AMERICAN EXPRESS PUBLISHING, CORPORATION, a New York corporation, ) ) AMERICAN EXPRESS TRAVEL ) RELATED SERVICES COMPANY, INC., ) a New York corporation, AMERICAN ) EXPRESS CENTURION BANK (dba, ) AMERICAN EXPRESS BANK FSB, a ) Utah corporation, and DOES 1, through ) ) 100, inclusive, ) ) Defendants. ) ) ) ) ) ) ) ) ) Case No.: 05CC00049 Assigned for all purposes to: Judge: Kim G. Dunning Dept: CX-104

NOTICE OF RULING Date: November 2, 2005 Time: 2:00 a.m. Dept: CX-104

1 Samuel A. Berry v. American Express Publishing Co., Inc., et al. Notice of Ruling Re: November 2, 2005 Hearing

Exhibit 24, Page 159

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 2 of 35

On November 2, 2005, Defendants' Motion to Stay Proceedings, and Compel Arbitration, and Plaintiffs Motion for Preliminary Injunction came on for hearing before the Honorable Kim G. Dunning. At this hearing, the Defendants were represented by attorney Andrew W. Mortiz. The Plaintiff was represented by attorney Matthew Hale. After considering the argument of counsel to the Court by the Parties, through their attorneys, and good cause appearing therefore, the Court Ordered as followed: 1. 2. 3. The Defendants' Motion to Stay Proceedings, and Compel Arbitration is denied. Plaintiffs Motion for Preliminary Injunction is denied without prejudice. A Status Conference is scheduled for Thursday, January 18,2006, at 10:30 a.m. Respectfully submitted,

Dated: November 14,2005

I
I

By:
Counsel for Plaintiff Samuel A. Berry

I

Samuel A. Berrv v. American Express publish in^ Co.. Inc., et al. Notice of Ruling Re: November 2,2005 Hearing

Exhibit 24, Page 160

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 3 of 35

1

2

PROOF OF SERVICE

3
4

I am employed in the City of Newport News, Virginia. I am over the age of eighteen (18)
and not a party to the within action; my business address is P.O. Box 1951, Newport News, VA 23601.

5

6

On Monday, November 14, 2005, I served by Federal Express overnight courier the
7

following documents: (1) Notice of Rule Re: November 2,2005 Hearing
8
9

The foregoing documents were served on:

Mr. Andrew W. Moritz, Esq. Stroock, Stroock & Laven 2029 Century Part East Los Angeles, CA 90067-3086 (310) 556-5907

1

I declare under penalty of perjury, penalty of perjury pursuant to the laws of the State of
California, that the foregoing is true and correct. Executed on the 14'~ of November 2005 in day Newport News, Virginia.

1

% *
Matthew S. Hale, Esq.

3 Samuel A. Berrv v. American E x ~ r e s Publishing Co.. Inc., et al. s Notice of Ruling Re: November 2,2005 Hearing

Exhibit 24, Page 161

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 4 of 35

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE DEPARTMENT #CX-104

SAMUEL A. BERRY, PLAINTIFF, VS .

) ) )

1
) ) ) )

NO. 05CC00049

AMERICAN EXPRESS PUBLISHING, INC., ET AL., DEFENDANTS. 1
...................................
)

HONORABLE KIM DUNNING, JUDGE PRESIDING REPORTER'S TRANSCRIPT NOVEMBER 2, 2005, 2005

APPEARANCES OF ATTORNEYS: FOR THE PLAINTIFF: MATTHEW S. HALE, ATTORNEY AT LAW

FOR THE DEFENDANTS: STROOCK & STROOCK & LAVAN LLP BY: ANDREW W. MORITZ, ATTORNEY AT LAW

REPORTED BY:

JACKIE SIENSKI, CSR #12390, RPR COURT REPORTER PRO TEMPORE

Exhibit 25, Page 162

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 5 of 35

SANTA ANA, CALIFORNIA; NOVEMBER 2, 2005

AFTERNOON SESSION

* * * * *

(WHEREUPON, THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT)

THE COURT:

GOOD AFTERNOON.

COUNSEL, YOUR TIME IS VERY IMPORTANT, AND I SINCERELY APOLOGIZE FOR THE DELAY IN STARTING TODAY'S CALENDAR. AND I APPRECIATE YOUR PATIENCE. NO. 1, BERRY VS. AMERICAN EXPRESS. MR. HALE: GOOD AFTERNOON, YOUR HONOR. MATTHEW HALE

FOR THE PLAINTIFF. MR. MORITZ: GOOD AFTERNOON, YOUR HONOR.

ANDREW MORITZ ON BEHALF OF THE DEFENDANTS, AMERICAN EXPRESS. THE COURT: DO YOU WANT TO START WITH THE MOTION TO

COMPEL ARBITRATION? MR. MORITZ: YES, YOUR HONOR. AS WE'RE THE MOVING

PARTY, WE'VE READ THE COURT'S TENTATIVE RULING. ALTHOUGH WE RESPECTFULLY DISAGREE WITH THE COURT'S RULING, INCLUDING PARTICULARLY WITH RESPECT TO THE CHOICE OF LAW ANALYSIS, THAT WE BELIEVE THAT UTAH LAW

Exhibit 25, Page 163

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 6 of 35

GOVERNS, PURSUANT TO CHOICE OF LAW PROVISION AND ANALYSIS REQUIRED BY THE BOEHR DECISION FOLLOWING NEDLLOYD AND WASHINGTON MUTUAL. THAT ANALYSIS REQUIRES THAT IF THAT AND

PROVISION IS ENFORCEABLE, UTAH LAW SHALL BE APPLIED. THEREFORE THE COURT - THE COURT: I'M SORRY.

WE ALL AGREE THERE'S NO UTAH

CASE DIRECTLY ON POINT.

YOUR ARGUMENT AS TO THE

APPLICABILITY OF UTAH LAW IS BASED ON YOUR ANALYSIS WHICH DEPENDS IN PART ON CITATION TO A GREAT NUMBER OF CASES FROM OTHER STATES, BUT NOT IN CALIFORNIA. MR. MORITZ: WELL, THERE IS UTAH LAW GOVERNING THE IN

GENERALLY APPLICABLE DEFENSE OF UNCONSCIONABILITY. FACT, THERE ARE SEVERAL. THE COURT:

DO WE ALL AGREE THERE'S NO UTAH CASE THAT

DISCUSSES CLASS ACTION WAIVERS AND ARBITRATIONS, SPECIFICALLY? MR. MORITZ: UNCONSCIONABILITY OF A CLASS ACTION

WAIVER IN AN ARBITRATION AGREEMENT; IS THAT CORRECT? I WOULD AGREE THAT THERE'S ANOTHER UTAH COURT DECISION ADDRESSING THAT PARTICULAR ISSUE. THE COURT: NOW, UTAH HAS BOTH A SUBSTANTIVE AND A I THINK YOU CAN SEE THAT.

PROCEDURAL KIND OF PRONG. MR. MORITZ: THE COURT:

THAT'S CORRECT. DO YOU THINK IT'S FAIR TO SAY THAT THE

STATES THAT EITHER HAVE CONSIDERED IT, OR IT'S PRETTY CLEAR FROM THE CASES THEY HAVE CONSIDERED, THAT THEY DON'T

Exhibit 25, Page 164

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 7 of 35

HAVE A PROBLEM WITH THE CLASS ACTION WAIVER AND ARBITRATION PROVISION. SUBSTANTIVE STATES. THEY ARE NOT SO MUCH THE

THEY ARE THE ONES THAT TALK ABOUT

ARBITRATION AS THE PROCEDURAL - - FROM THE PROCEDURAL PRONG. MR. MORITZ: YOUR HONOR. NO, I WOULDN'T AGREE WITH THAT,

FOR EXAMPLE, IN NEW YORK LAW, THE CASES HOLD

THAT THEY ENFORCE - THE COURT: PARTICULARLY? MR. MORITZ: WELL, YOU ASKED ABOUT - - WELL, IN THIS LET ME ASK YOU, WHY IS IT NEW YORK LAW,

PARTICULAR CASE, IT RELATES TO THE - - WHEN WE GO DOWN THE ROAD, TO THE MOTION FOR PRELIMINARY INJUNCTION. THE COURT: MR. MORITZ: LET'S STAY ON YOUR OWN MOTION. OKAY. NEW YORK LAW IS ONE OF THE STATES

THAT - - YOU ASKED ME - - MOST OF THE STATES DEAL WITH IT. IF THEY ARE GOING TO ENFORCE THE CLASS ACTION WAIVER, THE CLASS ARBITRATION WAIVER, IT IS BECAUSE THEY FIND THAT IT'S NOT -- THAT IT'S SUBSTANTIVE, OR THAT IT'S PROCEDURALLY OKAY. THE COURT: MR. MORITZ: THAT'S WHAT YOU'RE SAYING?

RIGHT. BUT I'M SAYING THAT THERE ARE COURTS THAT

HOLD THAT THE SUBSTANCE OF SUCH A PROVISION IS NOT UNCONSCIONABLE. THE COURT: IT DOESN'T SHOCK THE CONSCIENCE. BUT WE'VE GOT TWO KINDS OF - - WELL, OKAY. WE'VE GOT CALIFORNIA.

WE'VE GOT THREE KINDS OF RESULTS.

Exhibit 25, Page 165

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 8 of 35

THIS PROVISION WOULD BE UNCONSCIONABLE. MR. MORITZ: THE COURT: IN CERTAIN CIRCUMSTANCES. ACTUALLY -- BUT WE'RE TALKING ABOUT - - I

THINK THIS IS WHAT DISCOVER BANK AND THE - MR. MORITZ: DECISION. THE BOEHR - - I CALL IT THE BOEHR AND IN IT - -

BUT THAT'S THE REAL PARTY.

THE COURT:

BUT I'LL CALL IT THE NAME OF THE CASE, IT'S THE SUPREME COURT CASE. IT'S CALLED THE

WHICH IS DISCOVER BANK.

THAT WAS PRECEDED BY A COUPLE YEARS.

SZETELA CASE, WHICH IS ALSO A DISCOVER BANK CASE, THE ONE FROM A COURT OF APPEAL DOWN THE STREET. WE'VE HAD A COUPLE OF OTHER APPELLATE DECISIONS. AND CALIFORNIA LAW IS PRETTY CLEAR. I THINK THE

DISCOVER BANK CASE DEALT WITH THE CLAUSE VERY SIMILAR TO THE ONE THAT IN THE PARTY'S AGREEMENT HERE. OKAY. SO WE'VE GOT STATES THAT SAY - - THAT LOOK

AT ARBITRATION AS KIND OF A SUBSTANTIVE OR SUBSTANTIVE AND PROCEDURAL ISSUE. WE'VE GOT SOME STATES THAT DEAL AND THEN - -

PRIMARILY WITH ARBITRATION AS PROCEDURAL. RIGHT. THERE ARE SOME.

MR. MORITZ:

I'M NOT SURE I UNDERSTAND WHAT YOU'RE

SAYING, YOUR HONOR, BUT - THE COURT: RUN THROUGH. OTHER STATES. MAYBE I SHOULD JUST GO AHEAD AND LET YOU BUT YOU SPENT A LOT OF TIME ON A LOT OF NOT VERY MUCH TIME ON UTAH, WHICH ISN'T THAT'S CERTAINLY NO CRITICISM.

REALLY VERY SURPRISING.

Exhibit 25, Page 166

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 9 of 35

BUT THERE ISN'T A LOT OF UTAH LAW.

WHAT THE COURT GLEANED

IN A REVIEW OF UTAH CASES, IS THAT A UTAH ARBITRATION ACT IS BASED PRETTY CLOSELY ON THE FEDERAL ARBITRATION ACT. AND SO UTAH, THEY TEND TO LOOK TOWARDS CASES DEALING WITH THE FEDERAL ARBITRATION ACT. IN FACT, FEDERAL CASES.

BUT I THINK THE UTAH SUPREME COURT HAS BEEN PRETTY CLEAR. HOWEVER, WE'RE OUR OWN COURT, AND WE'LL WE PRETTY MUCH CAN DECIDE THE ISSUES WE'RE NOT DEFERRING ANY KIND OF

DECIDE THE ISSUES. THE WAY WE THINK.

ANALYSIS OR CONCLUSION TO ANY OTHER STATE OR FEDERAL BODY. SO THAT SEEMS A PRETTY FAIR READING OF UTAH CASES. MR. MORITZ: I BELIEVE THAT THEY SET FORTH WHAT THEIR

STANDARD FOR UNCONSCIONABILITY ARE, WHAT THEY BELIEVE THAT IS. THE COURT: YES, I AGREE. BUT - - OKAY. THE UTAH

COURTS HAVE NOT CONSIDERED THE CLASS ACTION WAIVER, SPECIFICALLY. MR. MORITZ: THE COURT: THAT IS CORRECT. SO GO AHEAD. NOW YOU'RE GOING TO TELL ME

ABOUT - - WHY YOU THINK THE WAY - - BECAUSE UTAH COURTS HAVE CONSIDERED THE UNCONSCIONABILITY ASPECT JUST OF ARBITRATION PROVISIONS IN GENERAL. ONE WAY THAT THIS COURT SHOULD NECESSARILY KIND OF EXTRAPOLATE THAT AND COME TO THE CONCLUSION UNDER UTAH LAW. THIS WOULD BE CONSCIONABLE. MR. MORITZ: WELL, IT'S NOT UNCONSCIONABLE. UNDER

Exhibit 25, Page 167

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 10 of 35

UTAH LAW, UNCONSCIONABILITY IS A HEAVY BURDEN. WHAT THE SUPREME COURT SAYS.

THAT'S

THE SUPREME COURT OF UTAH.

IT REQUIRES ESTABLISHING CLEAR AND CONVINCING EVIDENCE THAT AN AGREEMENT IS UNCONSCIONABLE. MIND, AND LOOKING - THE COURT: HOW IS THAT BURDEN DIFFERENT FROM THE THAT CALIFORNIA AND SO WITH THAT IN

BURDEN THAT CALIFORNIA COURTS PUT ON?

COURTS, LIKE UTAH COURTS, LIKE THE IDEA OF ARBITRATION IN GENERAL. MR. MORITZ: THE COURT: THAT'S CORRECT. IT'S A GOOD THING. COURTS SHOULD

ENCOURAGE IT AND FIND THAT THESE PROVISIONS WORK, IF WE CAN. I MEAN, THAT'S PRETTY MUCH WHAT THE CALIFORNIA APPELLANT AND SUPREME COURT LINE OF AUTHORITIES SAY, DON'T YOU THINK? MR. MORITZ: THE COURT: MR. MORITZ: THAT ARBITRATION IS FAVORED? ABSOLUTELY. YES, I WOULD AGREE WITH YOUR HONOR. AND

I WOULD AGREE WITH THE FACT THAT IN UTAH, COURTS LOOK TO AND GIVE HEEDANCE TO THE FACT THAT WHEN AN ARBITRATION AGREEMENT IS INVOLVED, THAT YOU INTERPRET THE AGREEMENT TO FAVOR ARBITRATION. YOU RESOLVE ANY DOUBTS IN FAVOR OF

ARBITRATION, BECAUSE OF THE STRONG POLICY FAVORING ARBITRATION. THEREFORE, IF THERE'S A DOUBT IN THIS PARTICULAR

Exhibit 25, Page 168

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 11 of 35

CASE, WHETHER THIS PROVISION IS UNCONSCIONABLE UNDER UTAH LAW BECAUSE WE'RE DEALING WITH AN ARBITRATION AGREEMENT, AND BECAUSE OF THAT STRONG POLICY FAVORING ARBITRATION, THEN THE COURT SHOULD FIND THAT AGREEMENT INTERPRETED TO BE ENFORCEABLE AND NOT UNCONSCIONABLE. THIS IS PARTICULARLY TRUE WITH RESPECT TO THE FACT THAT UNDER UTAH LAW, SINCE WE'RE TALKING ABOUT IT, THE PROCEDURAL UNCONSCIONABILITY ASPECT IS COMPLETELY MISSING FROM THIS CASE. PLAINTIFF HASN'T ESTABLISHED

EVIDENCE THAT THIS ARBITRATION AGREEMENT IS PROCEDURALLY UNCONSCIONABLE. NOW, IF YOU'RE - THE COURT: COUNSEL, I DON'T THINK THAT UTAH REQUIRES

THAT BOTH PRONGS BE SATISFIED. MR. HALE: IN MOST COURTS THERE IS ONE QUOTE FROM A

COURT THAT STATES THAT THEY HAVE RECOGNIZED SITUATIONS WHERE IT COULD OCCUR. BUT IN THIS PARTICULAR CASE THE

SITUATION DOESN'T SEEM TO BE SO EGREGIOUS THAT IT WOULD BE ESTABLISHING A RIGHT TO UNCONSCIONABILITY. THE COURT: I THOUGHT THAT UTAH SUPREME COURT'S

POSITION IS, THERE ARE TWO PRONGS, BUT YOU DON'T NEED TO SATISFY BOTH TO FIND SOMETHING UNCONSCIONABLE. WORDS, IF THERE IS A SUBSTANTIVE AREA THIS UNCONSCIONABILITY STANDARD IS MET THERE. TALKING KIND OF IN A VACUUM. MR. MORITZ: RIGHT. NOW, WE'RE IN OTHER

Exhibit 25, Page 169

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 12 of 35

THE COURT:

JUST A MOMENT, PLEASE - - I'M SORRY - - THAT

YOU DON'T HAVE TO FIND ALSO A PROCEDURAL UNCONSCIONABILITY; IS THAT TRUE? MR. MORITZ: THERE IS A QUOTE FROM A CASE THAT SAYS,

IF THEY RECOGNIZE THAT THERE MAY BE SITUATIONS WHERE AN AGREEMENT WOULD BE SO SUBSTANTIVELY UNCONSCIONABLE, THAT THE PROCEDURAL ELEMENT MAY NOT NEED BE SATISFIED. THE OTHER WAY DOESN'T GO. PROCEDURAL UNCONSCIONABILITY. YOU CAN HAVE JUST

BUT THE COURT'S GENERALLY LOOKING FOR PROCEDURAL;

LOOKS AT IT FROM BOTH STANDARDS. LOOKING FOR SUBSTANTIVE.

THERE'S NOTHING THAT'S ABOUT THIS TYPE OF AGREEMENT THAT'S SO SHOCKING TO THE CONSCIOUS, PARTICULARLY GIVEN THE FACT THAT THE VAST MAJORITY OF STATES, ACCORDING TO THE CALIFORNIA SUPREME COURT, ACTUALLY UPHOLD THESE TYPE OF CLASS ACTION LABOR. REFERRING TO THE DECENT OPINION. AND I'M

CONCURRING THE DECENT

OPINION, THEY RECOGNIZE THAT AND CITE THE NUMEROUS CASES. SO I'M NOT SURE YOU COULDN'T SAY THAT THIS IS A CASE THAT INVOLVING SUBSTANTIVE UNCONSCIONABILITY THAT'S SHOCKING THE CONSCIENCE. BUT THAT BEING SAID, THE THERE'S NO EVIDENCE OF PROCEDURAL UNCONSCIONABILITY HERE. AGREEMENT. THE COURT: THEN DON'T SPEND A LOT OF TIME ON IT.
WE HAVE A FORMAL

TELL ME ABOUT THE SUBSTANTIVE UNCONSCIONABILITY.

Exhibit 25, Page 170

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 13 of 35

MR. MORITZ:

WITH RESPECT TO THE SUBSTANTIVE

UNCONSCIONABILITY ISSUE, IT REALLY COMES DOWN TO THE CLASS ACTION WAIVER, AND WHETHER THAT IS SHOCKING THE CONSCIENCE TO REQUIRE A PERSON, A CUSTOMER IN A DISPUTE, TO ARBITRATE THEIR CLAIMS ON AN INDIVIDUAL BASIS. GIVEN THE FACT THAT THE LAW FAVORS ARBITRATION, THEY WANT SPEEDY RESOLUTION TO CUSTOMER DISPUTES. ARBITRATION IS FAVORABLE. THE COURT: MR. MORITZ: SLOW DOWN. IT - -

- - ALLOWS THEM FOR THE OPPORTUNITY TO

HAVE A EFFICIENT, SPEEDY MECHANISM TO RESOLVE DISPUTES. THE COURT: THOSE ARE ALL PLATITUDES THAT WE ALL KNOW,

AND WE ALL ACCEPT ABOUT ARBITRATION. LET'S TALK ABOUT THIS AGREEMENT. YOU HAVE

CONCEDED AND ADMITTED YOU HAVE NO PROBLEM WITH THE FOLLOWING STATEMENT, BECAUSE I BELIEVE YOU MADE IT IN YOUR PAPERWORK, THAT IF YOUR MOTION TO COMPEL ARBITRATION IS GRANTED, THIS COURT NEEDS TO DIRECT WHOEVER WILL CONDUCT THE ARBITRATION IN UTAH TO DO THIS AS AN INDIVIDUAL CLAIM. OKAY, NOW JUST BEAR WITH ME A MINUTE HERE. TWO FILED - - THIS IS A PUNATIVE CLASS ACTION CASE. IS NOT AN INDIVIDUAL CLAIM LAWSUIT. BOTH SIDES IN A THIS THIS

PUNATIVE CLASS ACTION CASE, HAVE THE RIGHT TO DETERMINATION AS TO CLASS CERTIFICATION. NOW IN CALIFORNIA, WE SORT OF HANDLED THAT WITH THE ARBITRATION, AND THE - - WHAT THE ARBITRATOR CAN DO.

Exhibit 25, Page 171

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 14 of 35

BUT IN ORDER TO BEGIN YOUR MOTION, THIS COURT NEEDS TO CHANGE THE VERY NATURE OF THIS LAWSUIT AND BASICALLY, IN FACT, TAKE AWAY PLAINTIFF'S RIGHT. AND SOME PEOPLE MAY

SAY THEY HAVE GOT A DUE PROCESS RIGHT, BECAUSE THEY HAVE A RIGHT TO A HEARING ON CLASS CERTIFICATION ISSUES. AND

JUST BASICALLY WITHOUT ANY KIND OF HEARING, WITHOUT ANY KIND OF EVIDENCE, WITHOUT ANY KIND OF WHAT WE'RE USED TO, I'M USING DUE PROCESS. NOT THAT THERE'S A FUNDAMENTAL

CONSTITUTIONAL RIGHT TO THIS, BUT JUST THAT THIS IS THE WAY CLASS ACTION CASES DEVELOPE, TO DETERMINATION AS TO WHETHER CLASS CERTIFICATION IS APPROPRIATE OR NOT. NOW I

MENTION IT NOW, BECAUSE THIS IS GOING TO COME UP WHEN WE TALK ABOUT YOUR MOTION, TOO. BUT SO, IN ORDER - - IT'S NOT JUST FOLLOWING THE ARBITRATION. I HAVE TO CHANGE THE NATURE OF THIS LAWSUIT

IN ORDER TO MAKE IT FIT THE ARBITRATION CLAUSE THAT YOU'RE SEEKING TO ENFORCE. PROBLEM. MR. MORITZ: TENTATIVE RULING. I UNDERSTAND THAT WAS IN YOUR COURT'S AND I UNDERSTAND YOUR COURT'S POSITION. I SEE THAT AS A LITTLE BIT OF A

IT'S OUR POSITION THAT HAVING AGREED TO ARBITRATE THEIR CLAIMS, SET UPON ELECTION BY EITHER PARTY, THEY ARE BOUND TO ARBITRATION, PURSUANT TO THE TERMS OF THE ARBITRATION. AND THAT'S WHAT OUR POSITION IS. THE COURT: ACCORDING TO THE ARBITRATION AGREEMENT, I

THINK IT'S FAIR TO READ IT, THEN IF YOU'RE AGREEING WITH

Exhibit 25, Page 172

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 15 of 35

INDIVIDUAL CLAIMS. MR. MORITZ: THE COURT: HERE. THAT'S CORRECT. WE'RE NOT DEALING WITH INDIVIDUAL CLAIMS WHAT

WE'RE DEALING WITH A PUNITIVE CLASS ACTION.

WOULD HAPPEN - - AND I'M NOT SUGGESTING ANYTHING TO ANYBODY. BUT THAT WOULD HAPPEN IF YOU WAITED UNTIL AFTER

THE CLASS CERTIFICATION MOTION, AND THE COURT FINDS THERE IS NO CLASS. THERE'S NOT AN INDIVIDUAL CLAIM, AND YOU

MAKE A MOTION TO COMPEL ARBITRATION. AT THAT POINT DO YOU RUN THE RISK? WELL, YOU

KNOW IT FUNNELS ALONG IN THE COURT SYSTEM FOR SO LONG, IT'S TOO LATE TO MAKE A MOTION TO COMPEL ARBITRATION. BUT IT'S THE ONE THING TO TAKE - - PREDISPUTE, TO TAKE FUTURE POTENTIAL DISPUTE OUT OF THE COURT SYSTEM, AND PUT IT INTO ARBITRATION. TELL ONE PARTY. AND IT SEEMS QUITE ANOTHER TO

ALTHOUGH IN ALL FAIRNESS, I THINK IT'S

BILATERAL, ALTHOUGH I'M NOT AWARE OF - MR. MORITZ: THE COURT: IT IS.
- - OF TOO MANY CASES WHERE A DEFENDANT

WANTS TO BE PART OF A CLASS AND BRING A WHOLE BUNCH OF OTHER PEOPLE IN. BUT IT'S WORDED SO THAT IT'S RECIPROCAL BUT

THAT YOU CAN ONLY SUE FOR CERTAIN KINDS OF THINGS.

THE WAY IT'S REPORTED IS, IF YOU SUE FOR THESE KINDS OF THINGS, THEN THIS ARBITRATION PROVISION CLICKS IN HERE. BY DESIGN, BY LUCK, BY WHATEVER, IT'S NOT A STATUTE FOR DAMAGES. IT'S NOT AN INDIVIDUAL CLAIM. IT'S A PUNITIVE

Exhibit 25, Page 173

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 16 of 35

CLASS ACTION. SO IT SEEMS THAT UNDER - - THERE'S ONE LINE OF REASONING, IT'S NOT PARTICULARLY UNREASONABLE THAT THEIR LAWSUIT DOESN'T EVEN FALL WITHIN THE ARBITRATION PROVISIONS. BECAUSE IT'S NOT AN INDIVIDUAL CLAIM. YOU

WANTED TO TRANSFORM IT TO AN INDIVIDUAL CLAIM, BUT IN ORDER TO DO THAT, YOU NEED AN ORDER FROM THIS COURT, THAT IT'S NOT ONLY, DO YOU ARBITRATE, BUT YOU HAVE TO CHANGE THE NATURE OF THIS LAWSUIT AND MAKE AN INDIVIDUAL CLAIM. I THINK IT IS A BIG PROBLEM. BIG PROBLEM. I THINK THAT'S A

PLUS, I'M PRETTY SURE I DON'T AGREE WITH

YOUR ANALYSIS, WHICH WAS SET OUT IN YOUR PAPERWORK WHERE UTAH LAW IS INVOLVED. MR. MORITZ: WELL, YOUR HONOR, TO CONCLUDE THAT WHAT

IS SET FORTH IN OUR PAPERS, WE RESPECTFULLY DISAGREE WITH THE COURT'S RULING, AND WITH THE COURT'S REASONING TO THE CHOICE OF LAW ANALYSIS. WE ARE PREPARED TO SUBMIT ON THE TENTATIVE RULING WHICH WAS WHAT I WOULD HAVE DONE. BUT WE WOULD BE

PREPARED TO SUBMIT ON THE TENTATIVE RULING WITH THE UNDERSTANDING THAT THE COURT'S RULING AND THIS MOTION IS WITH RESPECT TO THE ISSUE OF WHETHER OR NOT PLAINTIFF'S CLAIM IS SUBJECT TO ARBITRATION. AND THE COURT'S RULING

IS NOT WITH RESPECT TO WHETHER OR NOT PLAINTIFF HAS ESTABLISHED AN ELEMENT OF HIS AFFIRMATIVE CLAIM IN THIS CASE, THAT THE ARBITRATION PROVISION IS SOMEHOW

Exhibit 25, Page 174

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 17 of 35

UNCONSCIONABLE. BY - THE COURT: IN JUNCTION. MR. MORITZ: THE COURT: THAT TOO. MR. MORITZ:

WHICH IS AN UNDERSTANDING THAT IS DRIVEN

BY PLAINTIFF'S MOTION TO FOR PRELIMINARY

WELL, ALSO BY THE FACT THAT -YOU'RE GOING TO HAVE A CHANCE TO ADDRESS

RIGHT.

ALSO WITH RESPECT TO THE FACT

THAT A RULING DENYING A MOTION TO COMPEL ARBITRATION IS SUBJECT TO APPEAL, SUBJECT TO AUTOMATIC APPEAL. THE COURT: I DON'T THINK IT'S AN AUTOMATIC APPEAL. YOU'RE TALKING I

THINK YOU ACTUALLY HAVE TO DO SOMETHING. ABOUT A STAY. MR. MORITZ: OF APPEAL. THE COURT: MR. MORITZ: YES.

WELL, YOU HAVE TO ACTUALLY FILE A NOTICE

1294 OF CODE OF CIVIL PROCEDURE.

BUT OUR

POSITION WOULD NOT BE TO WAIVE ANY RIGHT - - TO WAIVE ANY CHALLENGE TO THE FACT THAT ANY DETERMINATION MADE BY THIS COURT IN THE CONTEXT OF THIS MOTION, THAT THE ARBITRATION PROVISION IN ANY WAY IS SOMEHOW UNCONSCIONABLE. THE COURT: I'M SORRY. YOU'RE TELLING ME THAT YOU

DISAGREE WITH THE COURT'S RULING, AND YOU THINK SOMEHOW BY DISAGREEING, YOU'VE GIVEN UP YOUR RIGHT TO APPEAL? MR. MORITZ: NO, NO. I'M JUST SAYING THAT IT'S OUR

UNDERSTANDING THAT THE COURT'S RULING IN THIS REGARD

Exhibit 25, Page 175

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 18 of 35

RELATES TO THIS PARTICULAR MOTION, NOT WITH RESPECT TO PLAINTIFF'S AFFIRMATIVE CLAIM BROUGHT UNDER THE C.L.R.A. THE COURT: LAWSUIT. I'M NOT RULING ON THE MERITS OF THE

I'M RULING ON YOUR MOTION TO COMPEL ARBITRATION. THANK YOU. IT'S REALLY SIMPLE.

MR. MORITZ: THE COURT:

YES, COUNSEL. MR. HALE: THE COURT: MR. MORITZ: MAY I GO TO THE PODIUM, YOUR HONOR? YES. I WANT TO INTERJECT AND CLARIFY IT, SO WE WE DO HAVE AN

DON'T GO DOWN THE WRONG TRACK HERE. INDIVIDUAL CLAIM HERE.

IF YOU LOOK AT THE PRAYER OF MY

CLIENT, IT SAYS THAT THIS LAWSUIT WAS BROUGHT ON BEHALF, INDIVIDUALLY OF SAM BERRY, AND UPON THE BASIS OF - - ON BEHALF OF A PUNATIVE CLASS. THE COURT: MR. HALE: IT'S THE STANDARDS OF THE CLASS ACTION. WE WOULD NOT HAVE BEEN ABLE TO FILE THIS, SO THAT WAS IN

HAD HE NOT BROUGHT AN INDIVIDUAL CLAIM. PLAY. THE COURT:

COURT'S DISCUSSION WAS TO GRANT THE COURT HAS TO COMPLETELY KNOCK OUT THE

DEFENDANT'S MOTION.

CLASS ACTION ALLEGATIONS, ESSENTIALLY. MR. HALE: THE COURT: MR. MORITZ: RIGHT. DO YOU AGREE? I AGREE WITH THAT THAT WAS THE PROPER AND THE COURT'S RULING ON

APPLICATION LAW UNDER KAGAN.

Exhibit 25, Page 176

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 19 of 35

DISCOVER BANK. THE COURT: SO YOU'RE WILLING TO HAVE THE COURT DO

THAT AND SEND THIS TO ARBITRATION? MR. HALE: NO, I'M NOT WILLING TO SEND IT. IT DOESN'T

NEED ARBITRATION. THE COURT: MR. HALE:

IF I COULD GO THROUGH MY LITANY HERE.

SURE. I THINK THE ONE IMPORTANT ELEMENT THE COURT

HAS MISSED HERE, WHICH IS VERY IMPORTANT, IS THAT THIS CASE IS OUTSIDE THE FAA, THE FEDERAL ARBITRATION ACT,
9 U.S.C., SECTION 1 THROUGH 16.

THE REASON FOR THAT IS,

THE UNITED STATES SUPREME COURT IN THE GILMER CASE SAID THAT CASES ARE ONLY ELIGIBLE FOR ARBITRATION UNDER THE FAA IF ONE COULD GET THE SAME AVAIL - - THEMSELVES TO THE SAME RIGHTS AND REMEDIES THEY COULD IN COURT. NOW, PURSUANT TO THE ARBITRATION CLAUSE THERE, AMERICAN EXPRESS' CARD MEMBER CONTRACT, IT TALKS IN TERMS OF ONLY "YOU AND US" MAY GO TO COURT AND FIGHT THIS OUT. ALL RIGHT? BY THAT VERY NATURE "YOU AND US," YOU'RE EXCLUDING THE TYPE - - THEY ARE EXCLUDING THE TYPE OF BROAD-BASED PUBLIC POLICY, PUBLIC INTEREST, INJUNCTIVE LAWSUITS, AND CLASS ACTION. REMEDY IN THAT SITUATION. AS A CONSEQUENCE, THIS ENTIRE CASE BASED ON THE FAA, DOESN'T FALL WITHIN THE FAA. TO GO TO ARBITRATION. AND THIS DOESN'T HAVE CLASS ACTIONS IS A REMEDIAL

AND WE MAY PROCEED PURSUANT TO

Exhibit 25, Page 177

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 20 of 35

STATE LAW. THE COURT: MR. HALE: THE COURT: MR. HALE: THE COURT: MR. HALE: WHICH STATE LAW? WELL, IN THIS CASE. MAYBE WE DON'T NEED TO GET YET. WE DON'T NEED TO GET THERE. OKAY. STAY THIS CASE SOLELY ON THE FAA, I WOULD

SUBMIT THAT YOUR DECISION IN THIS CASE WOULD BE COMPLETELY UNASSAILABLE IN THE COURT OF APPEAL AND EVEN IN THE UNITED STATES SUPREME COURT, YOUR HONOR. THE COURT: WE DO HERE. STILL RIGHT. WRONG. MR. HALE: I'M JUST ASKING YOU TO MODIFY YOUR ORDER TO THAT'S THE BEAUTY AND THE FOILLE OF WHAT

I CAN BE RIGHT FOR THE WRONG REASON, AND I'M I CAN BE WRONG FOR ANY REASON, AND I'M STILL

INCLUDE THE FINDING OF THE FAA. THE COURT: LET'S BE REAL CLEAR.

THE TENTATIVE RULING IS SUPPOSED TO HELP AND ASSIST YOU IN ARGUMENT. THE RULING, IF THE COURT - - IF

YOU HAVEN'T PERSUADED THE COURT, WILL BE - - THE MOTION TO COMPEL ARBITRATION IS DENIED. SO I'M NOT AWARE THAT I ACTUALLY HAVE TO DENY IT WITH REASON, LIKE WE DO WITH SOME OTHER. I DON'T THINK

YOU'RE FORECLOSED FROM TAKING ANY POSITION YOU WANT. MR. HALE: I MEAN, IT'S OBVIOUS THIS CASE IS GOING TO

GO UP ON APPEAL.

Exhibit 25, Page 178

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 21 of 35

THE COURT: MR. HALE:

APPARENTLY. AND I THOUGHT, IF THE COURT WOULD ELUCIDATE

ITS DECISION, IT WOULD MAKE IT EASIER FOR EVERYBODY. I'LL JUST THROW THAT OUT THERE. OFFEND YOU. THE COURT: NEED NO OFFENSE TAKEN. IT'S JUST - - YOU JUST I HOPE I DIDN'T

--

WE ALL JUST NEED TO BE ON THE SAME PAGE RIGHT NOW, AND NOTHING YOUR COLLEAGUE HAS SAID HAS

CANDIDLY.

CONVINCED THE COURT YET THAT I SHOULD DO ANYTHING OTHER THAN TO DENY THE MOTION TO COMPEL ARBITRATION. APPARENTLY A PROMISE FROM BOTH OF YOU, THAT YOU'RE GOING TO GET A REVIEW FROM HIGHER COURT. GOT REALLY COMPREHENSIVE PAPERWORK HERE. YOU'VE

SO IF THE COURT

OF APPEALS CAN CONSIDER WHATEVER YOU PRESENT TO IT. MR. HALE: THE COURT: MR. HALE: THAT'S TRUE. IT'S ALL IN HERE. OKAY. WELL, SO THE FIRST ANALYSIS OR LEVEL

WOULD BE THE FAA. WHOSE LAW APPLIES.

AND THEN WE MOVE ON TO THE STATE LAW AND I THINK CLEARLY IN LIGHT OF THE

SUPREME COURT, CALIFORNIA SUPREME COURT'S DECISION IN THE DISCOVER BANK CASE AND THE BROUGHTON CASE AND THE CRUZ CASE IN WHICH BOTH OF THOSE DEAL WITH INJUNCTIONS. IS OUTSIDE ARBITRATION, BECAUSE IT ALL IMPLICATES BROAD-BASED PUBLIC POLICY AND REMEDIAL-TYPE ISSUES, AND INJUNCTION OF CLASS ACTION. AND BECAUSE OF THAT, THE THIS

ANTI-WAIVER PROVISIONS OF CALIFORNIA LAW MUST BE APPLIED.

Exhibit 25, Page 179

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 22 of 35

THERE IS NO LAW, AS MR. MORITZ HAS TOLD THE COURT, ON POINT IN UTAH DEALING WITH THESE ISSUES. I

WOULD SUBMIT THE 130 CASES THAT HAVE BEEN CITED BY THE DEFENSE IN THIS CASE HAVE ABSOLUTELY NO RELEVANCE, BECAUSE AS I POINTED OUT IN MY PAPERS, THE KAGAN DECISION SAYS THAT WHEN CALIFORNIA LOOKS OUTSIDE TO A SISTER STATE TO SEE IF THEY HAVE LAW, WITH A CHOICE OF LAW SITUATION, AND THEY HAVE A LAW, WE WOULD SEEM IT'S IN HARMONY WITH OURS AND APPLY OUR LAW. THE COURT: TENNESSEE TRIAL COURT DECISION THAT YOU

CITED IS REALLY IMPORTANT. MR. HALE: DISPOSITIVE. THE COURT: MR. HALE: IT IS NOT. THE SAME THING I WOULD SAY WITH JUDGE IT IS IMPORTANT. IT'S PERSUASIVE; BUT NOT

POLLOCK'S DECISION IN THE VOSS CASE IN THE SOUTHERN DISTRICT OF NEW YORK WHERE HE FINDS ARBITRATION CLAUSES INOPERATIVE. SO I JUST WANTED TO SAY THAT, YOUR HONOR. AND I

THINK THE THIRD ANALYSIS - - THIRD LEVEL OF ANALYSIS HERE WOULD BE THAT THE ARBITRATION CLAUSE, THEN, ON CLASS ACTIONS AND INJUNCTIONS, IS JUST UNDER BASIC CALIFORNIA AND CONTRACT LAW IS UNCONSCIONABLE. SUBSTANTIVELY UNCONSCIONABLE. SAY ABOUT THOSE ISSUES. DO YOU HAVE ANY QUESTIONS, OR WOULD YOU LIKE ME IT'S PROCEDURALLY AND

SO THAT'S WHAT I HAVE TO

Exhibit 25, Page 180

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 23 of 35

TO MOVE ON TO THE OTHER ONE? THE COURT: NO. ACTUALLY, MR. MORITZ GETS AN

OPPORTUNITY TO CLOSE OUT, AND THEN WE'LL START WITH YOU, THE ARGUMENT ON THE SECOND MOTION. MR. MORITZ: MY ONLY ISSUE, YOUR HONOR, IS WHETHER OR

NOT THE PLAINTIFF IS ACTUALLY SEEKING - - ONLY SOLELY SEEKING CLAIMS FOR INJUNCTIVE RELIEF. HE'S TAKEN IN HIS PAPERS. THE COURT: I THINK THAT WAS ALSO THE POSITION THAT THAT'S THE POSITION

WAS TAKEN WHEN YOU WERE REMANDED TO FEDERAL COURT, AS WELL. JUDGE STOTLER WROTE A VERY LENGTHY DECISION. AND

THAT WAS, I THINK, ONE OF THE PIVOTAL POINTS IN MAKING A FINDING THAT THE CASE DOESN'T HAVE A VALUE OF FIVE MILLION, BECAUSE INJUNCTIVE RELIEF. THE PRAYER SAYS. MR. MORITZ: THE PLAINTIFF DOES PRAY FOR STATUTORY AND THAT'S NOT INJUNCTIVE THAT'S CERTAINLY WHAT

DAMAGES IN THE COMPLAINT. RELIEF.

SO THAT'S MY ONLY ISSUE WITH WHAT THE PLAINTIFF

SAYS, IT'S THE WHOLE - THE COURT: MR. MORITZ: AND THAT WOULD CHANGE THE ANALYSIS NOW? WELL, CLAIMS FOR MONETARY RELIEF DON'T BECAUSE

FALL WITH ANY TYPE OF CRUZ OR BROUGHTON ANALYSIS.

ACTUALLY THOSE CASES HAVE HELD THE CLAIMS FOR MONETARY RELIEF ARE SUBJECT TO ARBITRATION. THE COURT: SO WHAT PARAGRAPH WAS THE PRAYER? BECAUSE

WE'RE GETTING ATTORNEYS' FEES.

Exhibit 25, Page 181

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 24 of 35

MR. MORITZ: YOUR HONOR.

PAGE 32, I BELIEVE, OF THE COMPLAINT,

THE LAST PRAYER IS TO ALL CAUSES OF ACTION. OH, OKAY. I SEE, THANK YOU.

THE COURT: MR. HALE: OWN TYPING.

JUST FOR THE COURT'S INFORMATION, I DO MY A LOT OF TIMES I CUT AND SPLICE THINGS. NOT

THAT'S JUST SOMETHING I DIDN'T CATCH IN THE PROCESS. UNLIKE WHERE I DIDN'T FIT UNDER "PURSUANT TO LAWS OF CALIFORNIA."

WHERE I COME FROM IN DELIVERANCE, VIRGINIA,

WE DON'T HAVE TO DO THAT. WE ARE NOT SEEKING MONETARY DAMAGES IN THIS CASE. AND THIS CASE WILL NOT BE AMENDED LATER TO SEEK MONETARY DAMAGES. THE COURT: ARB ITRAT ION. MR. HALE: MR. MORITZ: YOUR HONOR. MR. HALE: THE COURT: HERE. NOTICE. I THINK PREVAILING PARTIES GIVES NOTICE. IT ACTUALLY DOESN'T MATTER A WHOLE LOT MAY I GIVE NOTICE, YOUR HONOR? WELL, WE'RE THE MOVING PARTIES, COURT'S GOING TO DENY THE MOTION TO COMPEL

AND, IN FACT, TRUTH BE TOLD, NOBODY NEEDS TO GIVE BUT WE'VE GOT TWO MOTIONS, AND ONE OF THEN IS

DEFENDANT'S; ONE OF THEM IS PLAINTIFF'S. WE'LL JUST - - IF YOU'RE WILLING TO GIVE NOTICE ON BOTH, THAT'S FINE. MR. HALE: MR. MORITZ: I WILL DO THAT. MY CONCERN WITH THAT IS THAT - - I DON'T

Exhibit 25, Page 182

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 25 of 35

STATE OF CALIFORNIA COUNTY OF ORANGE

)

)
)

ss.

REPORTER'S CERTIFICATE

I, JACKIE SIENSKI, CSR NO. 12390, RPR, COURT REPORTER IN AND FOR THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF ORANGE, DO HEREBY CERTIFY THAT THE FOREGOING TRANSCRIPT IS A TRUE AND CORRECT TRANSCRIPT OF MY SHORTHAND NOTES AND A FULL, TRUE AND CORRECT STATEMENT OF THE PROCEEDINGS HAD IN SAID CAUSE.

DATED THIS jbrtDAY O ---

F--- h---, 2005.

-----------

CKIE SIENSKI, CSR NO. 12390, RPR COURT REPORTER PRO TEMPORE

Exhibit 25, Page 183

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 26 of 35

Travelers Cheques & Prepaid Services
July 02, 2007 T Ref: 03160634

-

000001

DAVID LEE 65 LANCASTER AVE KENTFIELD, CA 94904
.

- . .

Dear valued customer, Thank you for your recent purchase of American Express Travelers Cheques, Gift Cheques, Foreign Currency and/or Prepaid Cards provided to you by GIFT CARDS ON LINE. If your purchase contains Travelers Cheques please sign them immediately and review the Purchase Agreement enclosed with the cheques. If your purchase contains Gift Cheques, an American Express Travelers Cheque product, please advice the recipient to sign them immediately and to review the terms and conditions enclosed with the cheques. If your purchase contains an American Express Cift Card(s), please use or gift the Gift Card(s) as soon as possible. Subject to applicable law, a monthly service fee of $2.00 applies, but is waived for the first 12 months (365 days) after your purchase. Please ensure that the terms and conditions accompanying the Gift Card(s) are provided to the recipient(s). This letter serves as your confirmation receipt. Please carry it separately from your Cheques or Prepaid Cards.

-

-

-

- St has-BeKn-our pliasure'to- serve -you and we hope we carr be-uf Se-mice t o you again.

-

'

-

-

I -

. . Product D e s c w t 1 o n GIFT CARD

Ouantltv
1

b.um
25

Elrst SeriaUt GX 110672099

Exhibit 26, Page 184

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 27 of 35

AMERICAN EXPRESS@TRAVELERS CHEQUES, GlFT CHEQUES, AND PREPAID PRODUCTS TRAVELERSCHEQUES IMPORTANT REMINDERS Sign each Cheque IMMEDIATELY in the upper left corner. You are not protected in case of loss or theft until you do so. Never countersign a Cheque until you are ready to use it. When using a Cheque, countersign (in the lower left corner) only when the person accepting is WATCHING. While countersignature is all that American Express requires, the procedures of some acceptors may call for additional information. Carry this Record of Purchase SEPARATELY from your Cheques. Having this record will help expedite a refund if your Cheques are lost or stolen. MORE HELPFUL HINTS Handle and safegua~d your Cheques as you would your cash. Keep your Cheques with you or in a safe place AT ALL TIMES. An inside breast pocket of your coat or jacket or a zippered compartment of your handbag is most secure. Never leave your Cheques in your hotel room, luggage, or car. PURCHASE AGREEMENT IMPORTANT: AFTER LOSS Read this Agreement carefully. By either buying, signing, You promptly notify Amexco of the loss or theft of the accepting, or using these American Express Travelers Cheque. Cheques ("Cheques"), you agree to everything written here. You promptly report all facts of the loss or theft to You agree: (a) to sign your Cheques immediately in the Amexco and also to the police if Amexco asks you to. upper left corner, (b) Not to resell, consign, or take any similar action to transfer your Cheques to any other You promptly inform Amexco of the serial number of the individual, company, or entity for resale or reuse. lost or stolen Cheque and the place and date of its purchase. REFUND:

.
.

American Express Travel Related Services Company, Inc. ("Amexco") will replace or refund the amount shown on any lost or stolen Cheque in accordance with applicable laws and only if you meet all of the requirements below: BEFORE LOSS YOUhave signed the Travelers Cheque in permandt ink in the upper left corner. You have not signed the Cheque in the lower left corner. You have not given the Cheque to another person or company to hold or to keep, or as part of a fraudulent scheme. You have not used the Cheque in violation of any law, including as part of an illegal bet, game of chance, or other prohibited action. Your Cheque has not been taken by court order or by government action. You have safeguarded the Cheque as a prudent person would safeguard a like amount of cash.
GlFT CHEQUES

. . . .

You promptly complete Amexco's refund,forms and provide Amexco with acceptable proof of your identity You give Amexco all reasonable information and help requested to make a complete investigation of the loss or theft. Amexco reserves the right to investigate the toss or theft and to verify compliance with this Purchase Agreement and shall not be responsible for any delays resulting from such an investigation. Please note that for quality assurance purposes your telephone call to Amexco may be monitored or recorded and that you consent to such monitoring and recording.

NO STOP PAYMENT

Amexco cannot stop payment on any Cheque.
CASH AGREEMENT: American Express Travel Related Services Company, Inc. ("Amexco") will not replace or refund any CASH, including foreign currencies, that are lost or stolen, once it has been received, by or on behalf of the consumer.

PurchaserIRecipient agrees to abide by the Terms & Conditions that are included in the Gift Cheque package.
AMERICAN EXPRESS PREPAID PRODUCTS (TRAVELERS CHEQUE CARD AND GlFT CARD)

PurchaserIRecipient agrees to abide by the Terms & Conditions that are included in the Card package. IMPORTANT PRIVACY AND OPT OUT NOTICE FOR UNITED STATES PURCHASERS: We may develop marketing programs that provide offers for products and services that you may find of value. When we do this we may work with other companies, such as direct marketing firms, mailing shops, and companies that sell Prepaid Products to deliver these offers to you, and we may provide certain items of nonpublic personal information about you that we collect (as described in our full Privacy Statement) to these companies to distribute these offers to you. IF YOU PREFER THAT WE NOT SHARE PERSONAL INFORMATION ABOUT YOU TO DELIVER THESE MARKETING OFFERS TO YOU, YOU MAY OPT OUT FROM THESE DISCLOSURES AND FROM RECEIVING THESE OFFERS BY CALLING US AT 1-800-722-8614. Your opt out choice will apply only to the information we collect in connection with your purchase of Prepaid Products. For more information, call 1-800-722-8614for a copy of our Privacy Statement for American Express Prepaid Products Purchasers ("Privacy Statement"). TCPS-DDU-1 Rev. Nov. 04

Exhibit 26, Page 185

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 28 of 35

'I'ravelers Cheques & Prepaid Servtces
July 02, 2007 T Ref: 03160632

-

000001

DAVID LEE 65 LANCASTER AVE KENTFIELD, CA 94904 Dear valued customer, Thank you for your recent purchase of American Express Travelers Cheques, Gift Cheques, Foreign Currency and/or Prepaid Cards provided to you by GIFT CARDS ON LINE. If your purchase contains Travelers Cheques please sign them immediately and review the Purchase Agreement enclosed with the cheques.
s .

If your purchase contains Gift Cheques, an American Express Travelers Cheque product, please advice the recipient to sign them immediately and to review the terms and conditions enclosed with the cheque If your purchase contains an American Express Gift Card( lease use or gift the Gift Card(s) as soon as possible. Subject to applicable law, a monthly service fee of $2.00 applies, but is waived for the first 12 months (365 days) after your purchase. Please ensure that the terns and'conditions accompanying the Gift Card(s) are provided to the recipient(s). This letter serves as your confirmation receipt. please carry it separately from your Cheques or Prepaid Cards.
-

-

--

1t%i-s" been you again. Froduct Descrwtlon DINING CARD

--- -

-- - - . - - - - -- -- .-- - -- --o serve you ana we hope we can be of service to
- A

A

--

-- - . - --- -.-

-.

.

.

Ouantitv
1

Denom
75

First Serial # CX 001066800

Exhibit 27, Page 186

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 29 of 35
I

AMERICAN EXPRESS"TRAVELERSCHEQUES, GlFT CHEQUES, AND PREPAID PRODUCTS TRAVELERS CHEQUES IMPORTANT REMINDERS Sign each Cheque IMMEDIATELY in the upper left corner. You are not protected in case of loss or theft until you do so. Never countersign a Cheque until you are ready to use it. When udng a Cheque, countersign (in the lower left corner) only when the person accepting is WAT Wle countersignature is all that American Express requires, the procedures of some acceptors may call for additional information. Carry this Record of Purchase SEPARATELY from your Cheques. Having this record will help expedite a refund if your Cheques are lost or stolen.

.

MORE HELPFUL HINTS Handle and safeguard your Cheques as you would your cash. Keep your Cheques with you or in a safe place AT ALL TIMES. An inside breast pocket of your coat or jacket or a zippered compartment of your handbag is most secure. Never leave your Cheques in your hotel room, luggage, or car. PURCHASE AGREEMENT IMPORTANT: AFTER LOSS Read this Agreement carefully. By either buying, signing, You promptly notify Amexco of the loss or theft of the accepting, or using these American Express Travelers Cheque. Cheques ("Cheques"), you agree to everything written here. YOUpromptly report all facts of the loss or theft to You agree: (a) to sign your Cheques immediately in the Amexco and also to the police if Amexco asks you to. upper left corner, (b) Not to resell, consign, or take any similar action to transfer your Cheques to any other You promptly inform Amexco of the serial number of the individual, company, or entity for resale or reuse. lost or stolen Cheque and the place and date of its REFUND: American Express Travel Related Services Company, Inc. ("Amexco") will replace or refund the amount shown on any lost or stolen Cheque in accordance with applicable laws and only if you meet all of the requirements bebw: BEFORE LOSS You have signed the Travelers Cheque in permanent ink in the upper left corner. You have not signed the Cheque in the lower left corner. You have nbt given the &eque to another person or company to hold or to keep, or as part of a fraudulent scheme. You have not used the Cheque in violation of any law, including as part of an illegal bet, game of chance, or other prohibited action. Your Cheque has not been taken by court order or by government action. You have safeguarded the Cheque as a prudent person would safeguard a like amount of cash.
purchase. You promptly complete Amexco'q refund forms and provide Amexco with acceptable proof of your identity. You give Amexco all reasonable information and help requested to make a complete investigation of the loss or theft. Amexco re9erves the right ta investigate the toss or theft and to verify compliance with this Purchase Agreement and shall not be responsible for any delays resulting from such an investigation. Please note that for quality assurance purposes your telephone call to Amexco may be monitored or recorded and that you consent to such monitoring and recording.

NO STOP PAYMENT Amexco cannot stop payment on any Cheque. CASH AGREEMENT: American ExpressTravel Related Services Company, Inc. ("Amexco") will not replace or refund any CASH, including foreign currencies, that are lost or stolen, once it has been received, by or on behalf of the consumer.

GlFT CHEQUES PurchaserIRecipient agrees to abide by the Terms & Conditions that are included in the Gift Cheque package. AMERICAN EXPRESS PREPAID PRODUCTS (TRAVELERS CHEQUE CARD AND GlFT CARD) PurchaserIRecipient agrees to abide by the Terms & Conditions that are included in the Card package.
IMPORTANT PRIVACY AND OPT OUT NOTICE FOR UNITED STATES PUWHASEFB We m8ytfeveRIJ marketing programs that provide offers for products And services that you may find of value. When we & this wk May work With other companies, such as direct marketing firms, mailing shops, and companies that sell Prepaid Pmdycfs to deliver these offers to you, and we may provide certain items of nonpublic personal information about you that we collect (as described in our full Privacy Statement) to these companies to distribute these offers to you. IF YOU PREFER THAT WE NOT SHARE PERSONAL INFORMATION ABOUT YOU TO DELIVER THESE MARKETING OFFERS TO YOU, YOU MAY OPT OUT FROM THESE DISCLOSURES AND FROM RECEIVING THESE OFFERS BY CALLING US AT 1-800-722-8614. Your opt out choice will apply only to the information we collect in connection with your purchase of Prepaid Products. For more information, call 1-800-722-8614 for a copy of our Privacy Statement for American Express Prepaid Products Purchasers ("Privacy Statement"). TCPS-DDU-1 Rev. Nov. 04

Exhibit 27, Page 187

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 30 of 35

PIN 06-~886-009

The American Ex~ress"Gift Card Cardholder ~ ~ r e e m e n t
The followin terms and conditions govern your use of the American Express Gift lard ("Terms and Conditions"). By purchasing, signing or using the American Express Gift Card, you are agreeing to the Terms and Conditions. The terms "you" and " our" refer to the person who purchased the American Express Qift Zard and/or the person who is using the American Express Gift Card. The terms "we," "our" and "us" refer to American Express Travel Related Services Company, Inc. The term "Gift Card" refers to the American Express Gift Card. The Gift Card is a prepaid payment device that comes with a set dollar value printed on the front of the card. It is not a credit card, charge card or debit caid. The Gift Card can be used at retailers. restaurants, amusement parks, sporting events, movie and other theaters, spas, salons and certain other merchants that are located in the United States and that accept the American Express Card, including mail order, online and brick and mortar establishments. A location where the Grft Card can be used is referred to in these Terms and Conditions as a "Merchant." The Gift Card cannot be used at car rentals, cruise lines, for recurring billing purchases, or at casinos or ATMs. Usage restrictions apply for international airlines. We encourage you to use your Gift Card soon! While you may leave Available Funds, as defined herein, on the Gift Card as long as you wish, starting 366 days after the date your Gift Card was purchased, and subject to applicable law, we will deduct a monthly servlce fee of $2.00 from your Ava~lableFunds. If we send you a replacement card for a lost or stolen Gift Card, the initial 12 month (365 day) waiver period is still tracked from the date your original G ~ fCard was purchased. t Subiect to applicable law, we will deduct a $5.95 replacement card fee from'your Available Funds to replace a lost or stolen Gift Card. Subject to applicable law, if you ask us to issue you a check for the amount of any Available Funds remaining on the Gift Card l after the "valid thru" date expires, we w ~ ldeduct a $10.00 checkIssuance fee from the check we send you."

The Gift Card

Before using your Gift Card, you must sign your signature on the back. where indicated. Write down the ~ i fcard number and the t Customer Service number on a separate piece of paper in case the Gift Card is lost or stolen. If you are required to actlvate the Gift Card, msrnrct~onsvlill be-mttle of the p r d . We reserve the r~ght delay activation and use of the Gift Card for up to to 4 hours after purchase. h n n g activation or any Customer Service call, we may request that you provide the card security code printed on the front of your Gift Card, as well as additional identification information such as your home phone number, date of birth, and zip code. We may use this data for a range of p~lrposes,including but not limited to faci itatinq refunds if the Gift Card is lost or stolen, enhancing lusage at Merchantsthat may require zip code authorization, and aidinq in collection efforts in the event of a "shortage." We will hold your ~nforma'tion confidence in accordance with the section in below entitled "Data Protection and Privacy." The value of the funds available on the Gift Card at any given time is referred to in these Terms and Conditions and on the back of your Gift Card as the "Available Funds." The Available Funds on the Qift Card at the time of purchase is printed on the front of the. Gift Card and, if activation is required, these funds will only be available for spending after activation. If activation is required, the Gift Card has no value until it is activated. As you use the Gift Card, the Available Funds will be reduced by the full amount of each purchase including taxes, and any other fees. Once the and Available Funds are depleted, the Gift Car! IS no longer val~d t you agree (i) not to use the G ~ fCard and (11)after you are sure that you do not intend to return any merchandise purchased with the Gift Card, to cut it in half and discard it. - on mut of Available Funds. To obtain your Available Funds balance or to request information about previous transactions, visit www.americanexpress.com/giftcardor call toll free within the United States - 1-877-AXP-GIFT ("Customer Service l Number"). Please W Y o u r Available Funds balance w ~ lreflect all authorization requests that have been submitted by Merchants. If you have a question about a transaction that has been posted to your Gift Card (e.g., the same transaction has been pasted twice or for the incorrect amount], olease notifv us immediately, but no later than 60 days from the dateof the trankction, by calling the Customer Service Number

Before Usina the Gift Card

Information about Available Funds on the Gift Card

Service Fees

Other Fees

Exhibit 28, Page 188

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 31 of 35

"Yalid Thru" Date The "valid thru" date indicated on the Gift Card is reauired to ensure that the Gift Card can be used at Merchants that request and/or require customers to provide a plastic ex iration date during the transaction process. You may not use the gift card after the "valid thru" date. The Available Funds on the Gift Card do not expire, but may be reduced by service fees or other fees as described in these Terms and Conditions. If Available Funds remain on the Gift Card after the "valid thru" date, call the Customer Service Number to obtain a free replacement Gift Card or for instructions on how to redeem the Available Funds. Subject to applicable law, if you ask us to issue you a check for the amount of any Available Funds remaining on the Gift Card after the "valid thru" date. we will deduct a checkissuance fee of $10.00 from the check we send you. Before redeeming any Available Funds, we may hold the Available Funds for 10 business days after you request a check to ensure that all transactions have posted to our system. We reserve the right to decline to issue a replacement Gift Card. YOU AGREE TO SAFEGUARD YOUR GlFT CARD AND 'TREAT IT LIKE CASH. If your Gift Card is lost, stolen or used improperly, contact us immediately at the Customer Service Number - 1-877-AXP-GIFT. You must provide the Gift Card n ~ ~ m b and other identifying details. er We cannot provide a replacement card if you do not have your Gift Card number available. If our records show that there are still Available Funds remaining on the Gift Card, we will cancel the Gift Card and send you a replacement card. Subject to applicable law, when replacing a lost or stolen Gift Card, we will deduct a $5.95 replacement card fee from your Available Ftlnds. The replacement card will be in the amount of Available Funds on your lost/stolen Gift Card at the time you notified us that it was lost/stolen. NO REFUNDS WILL BE PROVIDED FOR AMOUNTS DEBITED FROM YOUR LOSTISTOLEN GlFT CARD BEFORE YOU NOTIFY US. To use the Gift Card at a Merchant. oresent the Gift Card at the time of oavment and sion the receio't with the same sianature vou used whet; you signed The back of ihe Gift Card. eta^: the rec'eipt as a record of the transaction. You agree to use the Gift Card only at Merchants and only for lawful purposes. You authorize us to deduct the full amount of each purchase includin taxes and any other fees from the Available Funds whenever your l i f t Card is used to make a purchase. You agree to keep track of the Available Funds on your Gift Card by using our website or the Customer Service N1.1mberand

not to use the Gift Card for any purchase that exceeds the Available Funds. The Gift Card is not transferable and you agree not to permit any other person to use your Gift Card after it is activated. If you believe your Gift Card has been lost or stolen, you agree to notify us immediately. You acknowledge that purchases made with prepaid r cards, such as the Gift Card, are similar to those made with cash O travelers cheques. You cannot "stop payment" or lodge a "billing dispute" on such transactions. Any problems or disputes you may have regarding a purchase should be addressed directly with the Merchant. Combinina Forms of P m t Tende r" T m s a c t ions If you wish to use your Gift Card to purchase an item for more than the Available Funds, depending on the Merchant's policy, you may be able to use your Gift Card toward a portion of the final purchase price, and then use another form of payment to pay the balance of the final purchase price. This is called a "split tender" transaction because you would be splitting the final transaction amount between your Gift Card and another form of payment. Before you request a "split tender" transaction, please call the C~~stomer Service Number to check your Gift Card's Available Funds balance. Then, you must ask the Merchant if two forms of payment will be accepted for the purchase. If the Merchant agrees, first request that a specific dollar amount be placed on the other form of payment (e.g., the final transaction amount less your Available Funds balance), and then use your Gift Card to pay the remaining balance. Some retailers, particularly department stores, will only allow a "split tender" transaction if the second form of payment is cash or check. Internet and most mail order merchants do not permit "split tender" transactions. We do not gl~arantee the Merchant w ~ laccept two forms of payment, that l such as two gift cards. Us~na Your Gift Card at Restaurants and other "TD" When a restaurant or other "tip" oriented Merchant (e.g., spas, hair salons, etc.) requests approval from us to complete your transaction, the Merchant will often add a fixed percentage (approximately 20%) to the amount reflected on the bill presented to you prior to payment. This additional amount is meant to cover the tip that ,they expect you will add to the bill. As a result of this increased authorization request, your Gift Card may be declined if you have insufficient Available Funds to cover the amount that the Merchant requested us to a rove. If you have more than sufficient Available Funds on your ~ i f t % r d to cover the amount that the Merchant requested us to approve, it will result in a "hold" on your Available Funds for the
# ,

.

Lost or Stolen Cards

Usina the Card

Exhibit 28, Page 189

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 32 of 35

additional amount if you do not add the amount they expect. Once the Merchant sends us the final transaction amount you designate, we will remove the "hold" on your Available Funds for any additional amount exceeding the final transaction amount. This may take 3 to 7 days and during this period you will not be able to use any Available Funds in a "hold" position. As an illustration, if your meal, not including a tip, totaled $50 but the restaurant seeks approval from us for $60 (e.g., includes a $10 tip in the authorization request)and you choose to pay only the $50 for the meal with your Gift Card, leaving the tio in cash:then the additional $10 would be olaced on "hold until we receive a submiss~on the restaurant r e f k i n g a final transaction from amount of $50 on your Gift Card. TO AVOID A DECLINE OF, OR A HOLD ON, YOUR GlFT CARD, YOU CAN ASK THE MERCHANT TO AUTHORIZE A SPECIFIC DOLLAR AMOUNT. WE DO NOT GUARANTEE THAT THE MERCHANTWILL FULFILL THIS REQUEST.

sufflc~ent Ava~lableFunds on your G ~ fCard to cover the estimated' t amount that the Merchant requested us to approve, ~t result will In a "hold" on your Available Funds for the add~t~onal amount untll the Merchant sends us the flnal amount of your lodging stay Once the Merchant sends us the flnal amount, w e w ~ lremove the l amount we had "hold" on your Ava~lableFunds for any add~t~onal authorized that exceeded thls flnal amount Whlle sofie lodging s s companies may requlre use of a cred~t card to make a reservation, you can use your G ~ fCard to make flnal payment at the end of t vour stav TO AVOID A DECLINE OF OR A HOLD ON YOUR GlFT

Transactions i n Excess of Available Fun& ysina Your Gift C a r d c h a n t s If you attempt to use the Gift Card when there are insufficient If you use your Gift Card to purchase gasoline, we recommend that Available Funds for the oarticular transaction 1e.o.. $100 ourchase not , you pay ins~de, at the pump If you pay at the pump, the term~nal when the Gift Card only'has $75 in Available ~ u i d s )and'the may be pre-programmedto seek a pre-authorizationfor $75 and this Merchant does not fulfill a request to process a "split tender" amount could increase from time to time ("Pre-Authorization transaction as described above, the transaction will usually be Request"). The Pre-Authorization Request seeks to confirm that you declined. However, if due to a systems malfunction or for any have sufficient Available Funds on your GiftCard topa for an average reason whatsoever, a transact'on occurs despite insufficient' purchase of gas-lfyou have insufficient Ava~lable u n on VOLT ~ d Gft Available Funds on the Gift Card lcreatina a neaative amount on Card to cover the Pie-Authorization Request, your attempt m use your the Gift Card, referred to herein as a "Shirtagd'), you agree to l Gift Card at the pump w ~ lbe declined. If you have sufficient Available reimburse us, upon request, for the amount of the Shortage. Funds on your Gift Card to cover the Pre-AuthorizationRequest, you will be permitted to continl~e transaction at the pump. However, your E MERCHANT'S RETURN POLICIES if the dollar amount of your actual gasoline purchase is less than the PRIOR TO COMPLETING THE TRANSACTION. If you wish to return amount of the Pre-AuthorizationRequest that we approved, a "hold" will a on your Available Fl~nds result e q ~ ~to lthe difference between any merchandise purchased wlth the Gift Card, you will be subject the two amounts. Once the Merchant sends us the final amount of to the Merchant's return ~olicies.If the Merchant asrees to issue may a credit to the Gift Card, such fl~nds not be avslable for 3 to your actual gasoline purchase, we will remove the "hold" on your . OayS Available Funds for any add~tionalamount exceedlnq this flnal amount. 'This may take 3 to 7 days and during this per6d ou will not N o W a r r a n t v d Sendicas Funds in a "hold" position. AVOID A be able to use any Ava~labe We are not responsible or liable to you for the quality, safety, legality, DECLINE OF, O A HOLD ON, YOUR GlFT CARD, WE RECOMMEND R or any other aspect of any goods or servlces purchased from any THATYOU PREPAY FOR YOUR GASOLINE INSIDE THE STATION. Merchant with vour Gift Card. If VOIJ have a disoute with a Merchant. you agree to setlle the disputedirectly with ihe Merchant rd a t lodaingl!&dmb If a lodging-Merchant accepts gift cards for reservations or at l check-in, the Merchant w ~ loften seek authorization for the We are not r sponsible or liable to you if any Merchant refuses to estimated amount of your lodging stay, Your Gift Card may be the Gift Card or any problems you may have with declined If you have ins&icient Available Funds to cover the any Merchant. If a Merchant fails to honor the Gift Card, pleasecall estimated amount of your lodging stay, If you have more than the Customer Serv~ce Number to report the ~nc~dent.
? J. .

1

I

'

I

~6

Exhibit 28, Page 190

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 33 of 35

-

-

- -

-

--

-

-

-

- -

--

--

9

Warr of ili nint d ktlme?%me?he vailG%mayrbeorsck~ce:a$: toruse yourse Cardand Z d in:perative, when this happens, you unable Gift or obtain information about your Available Funds Please notify us if you have any problems using your Gift Card. You agree that we are not responsible for any interruption of service Soecial Offers for Gift Card Usacle When you iuse your Gift Card there may be spec~al offers available to from time to time at partlcipating merchants We reserve the r~ght add to, change and/or cancel the offers at any tlme, change and/or terminate the merchants that extend the offers, and condition redemptions on certaln requirements (e g , mlnmum purchase amount, presentation of coupons or redemptions code at the point-ofsale) Terms, conditions and restrictions of each offer, lncludlng but di~ring not limited to ava~lab~lity defined time periods, are descr~bed in our communlcat~onsWe are not responsible or liable to you ~f a merchant refuses to honor an offer Please call the partlcipating merchant cllstomer service number to report any such inc~dent

are automatically deemed to assign and transfer to us any rights and claims, excludmng tort claims, that you have, had or m y have agalnst a any third party for an amount equal to the amount we have paid to you or credited to your G~ft Card You agree that you will not pursue any claim agalnst, or reimbursement from, such third party for the amount that we paid or credited to your Gift Card, and that you will cooperate with us ~fwe decide to pursue the thud party for the amount paid or credited Neither our failure to exercise any of our rights under these Terms and Cond~tions,nor our delay in enforcing or exercising any of our r~ghts, shall constitute a waiver of such rights Furthermore, ~fwe waive any right under these Terms and Conditions on one occasion, such walver shall not operate as a walver as to any other occasion Information W e Collect 1 Information Secuftv; We may obtain personal lnformatlon 1"Cardholder Information") about you, inclilding Information (1) provided to us by the Glft Card purchaser, such as your name and/or your address. (illprovided by you at the time of activation or dur~ngcustomer servlce calls, and (iii) about pi~rchases compliance, we may also obtain information from providers of identity verification data and demographic information Only those persons who need It to perform their lob responsibrlltles are authorized to have access to Cardholder Information. We also maintain physical, electronic, and procedural security measures that comply with federal regulations to safeguard Cardholder Information

1

1

1
1

We may change the terms of, or add new terms to, these Terms and Condltlons at any time, with or without cause, and without givlng you notice, in accordance with appl~cable In addition, law we may suspend, cancel, add, modify or delete any feature offered in connectton with yoilr Gift Card at our sole discretion at any tlme, with or wlthout cause, and without givlng you notice, subject to applicable law Any notice given by us shall be deemed given when deposited In the United States

:3 ~ ~ ~ , " n ' ~ ~ ~ ~ ~ , " , " I ~ ~ ~ ~ ~ $ , "
return of the Gift Card The Glft Card IS our property

We will use Cardllolder InformatLon to process Card transactions, to provide customer service, to process claims for ~ ~ $ ~ ~ ~ n e ~ ~lost"or stolen Gift Cards and to help protect against fraud. We may , ~hl

Fi:s%,S has \noteexpired,~we, "may ~conditioni ~relmlbursement~upon~ . f ~ ~ ~~e!a{ ~d un "a?~~hsInformation~~ e" , " nthed ~same~ purposes Companiesthat p "~e~ ~ e~ ~~~t ";h",'t~a~ $; " ~ ~~~I c~" p~ ' ~~b!~h~~/~!~~P!o"I"u"s"~d~s"C~oSe ~~ ~~O; Card
As i nmen and W iver
arngJthese b and Conditlws to a third party at any r : s notice to you However, ~fwe assign these Terms and time withoi~t Conditions, the terms will remaln substantially and materially the same unless you are not~fledIn the event we reimburse you for a Offers I Choice;We may develop marketing programs and send refund claim you have made for a lost or stolen G ~ fCard, or ~fwe t for products and services We share customer you otherwise provide you with a credit or payment with respect to any them market Own problem arising out of any transaction made wlth the Gift Card, y o i ~ addresses with Other work with us For example, we may provide certain Cardholder our Information to companies, incli~ding affiliated companies, that perform business operations or services, including marketing services, on our behalf We may prov~de certain Cardholder lnformatlon to others outside of American Express as permitted by law, such as to government entitles or other third Parties In response to subpoenas

.

Exhibit 28, Page 191

Case 3:07-cv-04765-CRB

Document 1-6

Filed 09/17/2007

Page 34 of 35

products and servlces If you prefer not to recelve offers, you may opt out by calling IJS In the Un~ted States toll free at 1-800-722-8614 If you opt out from recelvlng these offers, we may st111send Important lnformatlon about the G ~ fCard or other Amer~can t Express products and servlces to you

Tele~hone Monitorina 1 Recordin

the Glft Card, (d) any beneflts and servlces related to the Gift Card, and (e)your appl~cat~on or actlvatlon of the Gift Card We ;hall not elect for l~nder Provlslon for any Clam that to use arb~trat~on the Arb~trat~on and you properly f ~ l e pursue In a small clalms court of your state or munlc~pallty long as the Clam 1s lnd~v~dual pendlng only In so and that court

Initiation of Arbitration Proceeding/Selection of Administrator: Any Claim shall be resolved, upon the election by you or us, by. arbitration plrrslJant to this Arbitration Provision and the code of procedures of the national arbitration organization to which the Claim Arbitration is referred in effect at the time the Claim is filed (the "Code"), except Purpose: Thls Arbltrat~on Provlslon sets forth the circumstances to the extent the Code conflicts with these Terms and Conditions. and procedures under whlch Clalms (as deflned below) may be Claims shall be referred t o either the National Arbitration Forum art~~trated Instead of I~l~gated court In ("NAF") or the American Arbitration Association ("AAA"), as selected Defin~t~ons: used In thls Arbltrat~onProv~s~on, term "Cla~m" by the party electing to luse arbitration. If a selection by us of one of As the means any clalm, d~spute controversy between you and us arlslng these organizations is unacceptable to you, you shall have the right or within 30 days after you receive notice of our election to select the from or relatlng to the Gift Card or these Terms and Condltlons as well as any related or prior agreement that you may have had wlth us other organization listed to serve as arbitrator administrator. For a copy of the procedures, to file a Claim or for other information about CI~ the relat~onsh~ps resulting from any of the above agreements these organizations, contact them as follows: NAF at PO. Box 50191, enforce