Visa U.S.A. may not be completely satisfied with its big legal victory on Monday, when the Supreme Court blocked Dean Witter, Discover & Co. from appealing an earlier antitrust decision that went Visa's way.
Visa still has countercharges pending against its nonbank rival, including fraud and trademark infringement, and does not seem inclined to let them drop.
"This action does not put an end to the dispute between the two companies," Visa said after the Supreme Court put an end to Dean Witfter's four-year struggle to gain membership in the bank card group.
However, Visa's director of litigation, Stephen Theoharis, acknowledged that "these charges were secondary to the more important issue of antitrust claims," and he is not sure what damages, if any, Visa will be seeking from its defeated opponent.
Before the high court's denial of a writ of certiorari - had it been granted, Dean Witter could have sought to persuade the justices to overturn a September 1994 decision by the U.S. Court of Appeals for the 10th Circuit - legal opinion on the probable outcome was divided.
Dean Witter, hoping to prove that a Visa bylaw barring its membership was illegal under the antitrust laws, had impressive hired guns on its side. Former judge and onetime Supreme Court nominee Robert Bork was its lead counsel, and former U.S. Solicitor General Kenneth Starr also signed the writ request.
One observer said, "Getting Bork and Starr to sign the brief got Dean Witter to second base."
Mr. Bork now acknowledges that the court's denial was a fatal blow to Dean Witter. "Unless there is some divine intervention, the Supreme Court is the last stop," he said.
Anita Boomstein, a partner in the law firm Hughes Hubbard & Reed, said the case didn't attract the Supreme Court's interest because it "didn't present an issue that affects other industries or other parties." The court tends to "select issues that have a broader applicability."
Lloyd Constantine, a New York lawyer who once headed his state's antitrust bureau, said the lawsuit "was so tied up (in its own facts) that there is nothing that will give anyone else guidance on any other case."
Dean Witter vented its disappointment in a bitter statement: "As a result of the Supreme Court's inaction, Visa and the banks will get off scot-free. They will undoubtedly feel emboldened now" to engage in "additional restraints against competition."
Mr. Theoharis called the statement an overreaction.
Some observers pointed out that Visa and MasterCard have little cause to feel emboldened at a time when they are the subjects of inquiries by the Justice Department's antitrust division.
Visa's remaining case against Dean Witter is an angry byproduct of the highly contentious and emotional atmosphere surrounding the litigation.
Visa claims that Dean Witter tried to enter the Visa network in a deceitful manner through the purchase of a failed Utah thrift, MountainWest Savings, in 1990.
The San Francisco-based card association maintains that Dean Witter purposefully withheld information about its ownership of the thrift when MountainWest submitted an application to issue Visa cards.
"In an effort to illegally capitalize on the Visa name," the suit states, "Sears (which owned Dean Witter and the Discover Card at the time) has resorted to subterfuge. Rather than marketing its new Prime Option credit card program as a Sears card program, Sears began plans to market Prime Option as a Visa card program."
The basis of Visa's countersuit is a Visa bylaw - apparently upheld by the recent court decisions - which specifies that Dean Witter and American Express Co. affiliates may not issue Visa cards.
Visa's suit, filed March 25, 1991, in the U.S. district court in Salt Lake City, alleged federal trademark infringement, fraud, and unfair trade practices, "all arising out of the failure to disclose the ownership interest," said Mr. Theoharis.
The suit has remained dormant during the antitrust proceedings.
Visa will not say whether it will seek financial restitution for what it has cost to defend its bylaw. Legal experts agree that both parties' legal maneuverings ran into millions of dollars.
The attorney also would not comment on what Visa expects from American Express Co., if anything, as a result of Dean Witter's loss. American Express filed an amicus brief on Dean Witter's behalf, and has admitted its interest in issuing Visa and MasterCard cards.
For its part, American Express, was "disappointed in the court's decision," said a spokesman.
One industry source speculated that American Express' brief might, in fact, have hurt Dean Witter "because it looked like competitors were complaining that they had to compete."
MasterCard, meanwhile, praised the result, saying it reinforced the card groups' rulemaking powers. Visa had criticized MasterCard for allowing Dean Witter and NationsBank to market a cobranded "Prime Option MasterCard."
