163 F.Supp.2d 322 (S.D.N.Y. 2001), 98 Civ. 7076, United States v. Visa U.S.A., Inc.

Docket Nº:98 CIV. 7076(BSJ).
Citation:163 F.Supp.2d 322
Party Name:UNITED STATES of America, Plaintiff, v. VISA U.S.A. INC., Visa International Corp., and MasterCard International Incorporated, Defendants.
Case Date:October 09, 2001
Court:United States District Courts, 2nd Circuit, Southern District of New York
 
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163 F.Supp.2d 322 (S.D.N.Y. 2001)

UNITED STATES of America, Plaintiff,

v.

VISA U.S.A. INC., Visa International Corp., and MasterCard International Incorporated, Defendants.

No. 98 CIV. 7076(BSJ).

United States District Court, S.D. New York.

Oct. 9, 2001

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John M. Nannes, Melvin A. Schwarz, Joel I. Klein, Rebecca P. Dick, Susan L. Edelheit, Steven Semerano, Kurt Shaffert, Scott A. Scheele, Jeffrey I. Steger, William H. Stallings, David C. Kully. Sean T. Fox, Ahmed Taha, M.J. Moltenbrey, U.S. Dept. of Justice, for U.S.

Richard A. Martin, Heller, Ehrman, White & McAuliffe, L.L.P., New York City, for VISA U.S.A., Inc.

Eugene F. Bannigan, John D. Gordan, III, Michele A. Connaughton, Morgan, Lewis & Bockius, LLP, New York City, John H. Shenefield, Morgan, Lewis & Bockius, LLP, Washington, DC, for VISA Intern. Service Ass'n.

Martin L. Seidel, Rogers & Wells, New York City, for MASTERCARD Intern. Inc.

Akin, Gump, Strauss, Hauer & Feld, LLP, Jonathan M. Jacobson, Abid Qureschi, Jason Kural, Christine Doniak, filed Amicus brief on behalf of American Express.

Decision

JONES, District Judge.

INTRODUCTION

This civil action was brought by the Antitrust Division of the Department of Justice, Washington, D.C., against the defendants, VISA U.S.A. INC., ("Visa U.S.A."), VISA INTERNATIONAL CORP., ("Visa International") (collectively "Visa") and MASTERCARD INTERNATIONAL INCORPORATED, ("MasterCard"). It involves the U.S. credit and charge card industry, which has only four significant network services competitors: American Express, a publicly owned corporation; Discover, a corporation owned by Morgan Stanley Dean Witter; and the defendants Visa and MasterCard, which are joint ventures, each owned by associations of thousands of banks.

The Government claims, in two counts, that each of the defendants is in violation of Section 1 of the Sherman Antitrust Act, which provides that "every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States ... is declared to be illegal." 15 U.S.C. § 1. Count One centers around the governance rules of Visa and MasterCard, which permit members of each association to sit on the Board of Directors of either Visa or MasterCard, although they may not sit on both. Count Two targets the associations' exclusionary rules, under which members of each association are able to issue credit or charge cards of the other association, but may not offer American Express or Discover cards. Because the Sherman Act outlaws only those agreements that unreasonably restrain trade and because the agreements alleged in this case are not the type of agreements that are unreasonable per se, for each count the plaintiff must demonstrate that the restraint has substantial adverse effects on competition. For the reasons to follow, the court finds that the Government has failed to prove that the governance structures of the Visa and MasterCard associations have resulted in a significant adverse effect on competition or consumer welfare. However, the proof clearly shows that the exclusionary rules and practices of the defendants have resulted in such adverse effect and should be abolished.

Turning to Count One, plaintiff focuses on what it calls the "governance duality" of

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the associations. Plaintiff's expert defines governance duality as a governance scheme which permits banks to have "formal decision-making authority in one system while issuing a significant percentage of its credit and charge cards on a rival system." Plaintiff's theory is that because of the overlapping financial interests of the banks they represent, the dual Directors on each of the associations' boards have a reduced incentive to invest in or implement competitive initiatives that would affect their other card product, and as a result the Visa and MasterCard associations have failed to compete with each other by constraining innovation and investments in new and improved products. To support this theory, the Government claims that the associations' failure to compete is exemplified by delayed or blunted innovation in four areas: (1) chip-based "smart" cards; (2) an encryption standard for Internet transactions; (3) advertising, and (4) premium cards. It also cites a number of statements made over the years by Visa and MasterCard executives which generally criticize "duality" as an impediment to aggressive competition between the associations. The Government claims that these statements are further proof that dual-issuing association board members engaged in anticompetitive behavior.

Based upon what it hoped to prove, the Government proposed the imposition of a court-mandated governance structure for Visa and MasterCard for a period of ten years. This structure would require that any issuer who served either on the Board of Directors or any governing committee of either association agree prospectively to issue credit, charge and debit cards exclusively on that association's network. It would also require that by 2003, 80% or more of the issuer's total dollar volume in credit and charge transactions be transacted on that association's network in the U.S. and worldwide.

After a review of the evidence, the court concludes that with the exception of the associations' failure to name each other in their advertising--a dated example that no longer reflects the aggressive advertising competition that has existed for some years between the defendants--the Government's examples fail to prove that dual governance has significantly diminished competition and innovation in the credit and charge card industry. Defendants' statements about "duality" do not persuade the court to the contrary. Most of them relate to dual issuance rather than to dual governance or board conduct; those that do refer to governance are dated and far too general to be of any probative value. In addition, the Visa and MasterCard boards have an impressive record of supporting "share-shifting" initiatives specifically designed to gain market share for their association at the expense of the other association, as well as American Express and Discover. The Government's failure to establish causation between dual governance and any significant blunting of brand promotion or network and product innovations is fatal to this claim.

Moreover, if innovation competition between Visa and MasterCard has been jeopardized in the past, it is at least as likely that dual issuance and the influence of the major dual issuers has been to blame as has dual governance. If this is so, the only remedy may well be the separation of the major banks as owner/issuers into one association or the other. This is precisely the direction the industry has taken. During the last three years, most of the top banks and monoline 1 issuers have already chosen to enter into "dedication" agreements

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with either Visa or MasterCard which provide that the issuer must solicit 100% of its new cards in the association with which it has contracted. Although entering into one of these contracts is not a prerequisite for board membership, not surprisingly, the current "dedication" levels ("portfolio skews") 2 of the members of the associations' Boards of Directors now reflect the market reality that dual governance is virtually at an end.

Of course, whether or not dual issuance has been or will be the source of anticompetitive conduct is not the issue. In this case the Government set out to prove that dual governance has been--if not the cause--a cause of an actual adverse effect on competition in the market. This it has not done. Even if market forces had not already all but ended dual governance, since the Government has failed to prove that adverse effect, no remedy altering the governance structures of Visa and MasterCard is justified.

In the second count, the Government alleges that Visa and MasterCard have thwarted competition from American Express and Discover through exclusivity rules forbidding members of the associations from issuing credit cards on competing networks. Since the penalty for issuing American Express or Discover cards is forfeiture of the association member's right to issue Visa or MasterCard cards, the Government claims that these "rules raise the cost to a member bank of issuing American Express or Discover credit cards to prohibitively high levels and make it practically impossible for American Express and Discover to convince banks ... to issue cards on their networks." (Cmplt.¶ 136.) And, indeed, since American Express' decision in 1996 to open its network and seek bank issuers, no bank has concluded a deal with American Express at the expense of losing its Visa and MasterCard portfolios. The Government also claims that American Express and Discover, as the smaller networks, need Visa and MasterCard members to issue their cards in order to increase their share of the card-issuing market to better compete with the associations in the network services market. The Government argues that as a result of the exclusionary rules, American consumers have been denied the benefits of credit and charge cards with new and varied features.

The proof demonstrates that Visa U.S.A.'s By-law 2.10(e) and MasterCard's Competitive Programs Policy ("CPP") do weaken competition and harm consumers by: (1) limiting output of American Express and Discover cards in the United States; (2) restricting the competitive strength of American Express and Discover by restraining their merchant acceptance levels and their ability to develop and distribute new features such as smart cards; (3)...

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