As with the statute of limitations periods for private actions, the bona fide errors doctrines do not apply in this FTC enforcement action. TILA section 1640(c) applies the bona fide errors doctrine to TILA actions “under this section” (referring to section 1640) “or section 1635 of this title.” The FTC, however, has brought its TILA claims under a different section of the Act – 15 U.S.C. § 1607(c) – which confers upon the FTC the authority to enforce those laws under the FTC Act. Thus, the bona fide errors provision in Section 1640(c) does not apply.

Cf. Marcus, 687 F.3d at 592-94 (holding that class cannot be certified unless it is “currently and readily ascertainable,” and discussing problems with determining membership in proposed class when potentially injured parties could not be determined from defendant’s records). The only conceivable way to establish who paid balance bills for each of the millions of 15 The elements of a RICO cause of action – contained in 18 U.S.C. §1964(c) – that a plaintiff have suffered an injury to “business or property” and that this injury be “by reason of” a RICO violation were drawn (verbatim) from 15 U.S.C. §15(a), which creates the private right of action to enforce the Sherman Act. See Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 463 (2006).

The right to maintain a private cause of action for damages arising under Section 2 flows from Section 4 of the Clayton Act, 15 U.S.C. § 15(a), which provides that “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws” may initiate litigation. 15 U.S.C. § 15(a). Accordingly, plaintiffs bringing a private cause of action under Section 2 must prove more than injury causally linked to an illegal presence in the market.

against Witness Systems; Case 1:06-cv-00311-JJF Document 85-3 Filed 03/21/2007 Page 21 of 24 - 22 - (d) That the Court find and declare that Witness Systems has not infringed and does not currently infringe any valid claim of the ‘738, ‘371, ‘005, ‘570, ‘345, ‘372, ‘370, ’ 920, ‘079 and ‘109 patents, directly or indirectly, literally or by the doctrine of equivalents; (e) That the Court find and declare that the claims of the ‘738, ‘371, ‘005, ‘570, ‘345, ‘372, ‘370, ’ 920, ‘079 and ‘109 patents are invalid; (f) That the Court find that the ‘371 patent is unenforceable; (g) That the Court find that this case is an exceptional case under 35 U.S.C. § 285, and that NICE be required to pay costs of suit that Witness Systems has incurred, including attorneys’ fees and costs; (h) That the Court award treble damages to Witness, the costs of this action, a reasonable attorneys’ fee, and prejudgment interest pursuant to the Sherman and Clayton Act, including 15 U.S.C. § 15; [(h)] (i) That Witness Systems be granted such other and further relief as this Court deems just and equitable. DEMAND FOR A JURY TRIAL Witness Systems demands a trial by jury on all claims, defenses, and counterclaims.

against Witness Systems; Case 1:06-cv-00311-JJF Document 68-4 Filed 02/07/2007 Page 21 of 23 - 22 - (d) That the Court find and declare that Witness Systems has not infringed and does not currently infringe any valid claim of the ‘738, ‘371, ‘005, ‘570, ‘345, ‘372, ‘370, ’ 920, ‘079 and ‘109 patents, directly or indirectly, literally or by the doctrine of equivalents; (e) That the Court find and declare that the claims of the ‘738, ‘371, ‘005, ‘570, ‘345, ‘372, ‘370, ’ 920, ‘079 and ‘109 patents are invalid; (f) That the Court find that the ‘371 patent is unenforceable; (g) That the Court find that this case is an exceptional case under 35 U.S.C. § 285, and that NICE be required to pay costs of suit that Witness Systems has incurred, including attorneys’ fees and costs; (h) That the Court award treble damages to Witness, the costs of this action, a reasonable attorneys’ fee, and prejudgment interest pursuant to the Sherman and Clayton Act, including 15 U.S.C. § 15; [(h)] (i) That Witness Systems be granted such other and further relief as this Court deems just and equitable. DEMAND FOR A JURY TRIAL Witness Systems demands a trial by jury on all claims, defenses, and counterclaims.

17.15. Venue is proper pursuant to 15 U.S.C. § 4, 15 U.S.C. § 5 and 15 U.S.C. § 22 because

Congress certainly could have provided a civil remedy for all injurious violations of the material support statutes. Cf. 15 U.S.C. § 15(a) (authorizing suit based on “anything forbidden in the antitrust laws”). Instead, Congress elected to make a “violation of the criminal laws of the United States” just one element of the relevant test.

The antitrust injury requirement is an element of a claim whether a private plaintiff seeks monetary or injunctive relief. Brunswick, 429 U.S. at 489 (antitrust injury required in treble damages actions under section 4 of the Clayton Act, 15 U.S.C. § 15); Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104 (1986) (private plaintiff seeking injunctive relief under Section 16 of the Clayton Act, 15 U.S.C. § 26, must show that it is threatened with antitrust injury). As Dr. Singer conceded, for any class to be certified, Plaintiffs must show that t e “conduct that elevated the prices ended up touching all of the buyers in the class.”

Id. (citing 15 U.S.C. § 15 and Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977)). Thus, Cargill stands for the proposition that predatory pricing itself that eliminates competitors can constitute an antitrust injury.

Consequently, these individuals are bound by the terms of the settlement agreements and Final Judgment entered in connection with the States’ Action and have no remaining claims against HarperCollins, Hachette, or Simon & Schuster. 37 Class Complaint, ¶¶ 22-47. Case 1:11-md-02293-DLC Document 362 Filed 06/21/13 Page 20 of 28 - 15 - 010260-11 609668 V1 defendants directed against all class members; and each asserts the same theory of antitrust liability.38 Nothing more is required by Rule 23(a)(3).