Plenty has been happening between court dates in the antitrust litigation between Dean Witter, Discover & Co., and Visa U.S.A.
Dean Witter added Robert H. Bork to its battery of attorneys, and it has been soliciting support from a number of federal agencies. Meanwhile, the financial services giant gained an unlikely friend in American Express Co.
Dean Witter is seeking to overturn a September 1994 decision in the U.S. Court of Appeals for the 10th Circuit that barred the company from joining Visa and issuing that brand of cards.
Since December Mr. Bork, the former Supreme Court nominee, has been representing Dean Witter as it seeks a writ of certiorari, which would allow it to make its ultimate appeal before the Supreme Court.
A spokesman for the New York-based financial services company said Mr. Bork began working with the company's Washington law firm, Kirkland & Ellis, after Dean Witter had been denied a request to reverse the court of appeals decision.
Most observers of the case, including Visa, first learned of Mr. Bork's direct involvement on Feb. 23, when the former appellate judge requested a 45-day extension to file a petition for certiorari to the Supreme Court. It was the first time his name appeared on the record, though in October 1993 Mr. Bork wrote an amicus brief supporting Dean Witter.
Mr. Bork's petition for an extension said Dean Witter required more time for several reasons.
First, the opinion presented by the appeals court in Denver in September introduced legal issues that Dean Witter is "still working on to refine for clear and effective presentation."
Dean Witter also "continues to urge" a number of governmental agencies with which it has been communicating to consider the implications of the court of appeals' opinion. In addition, Mr. Bork cited his own illness and the fact that Dean Witter has had "a number of different legal counsel and economic experts," as contributing to the request for more time.
Dean Witter's deadline is now April 20. Then Visa must submit a petition within 30 days in order to argue that Dean Witter's request be turned down.
Legal observers believe Dean Witter hopes the addition of Mr. Bork, who gained renown after his failed Supreme Court nomination in 1987, will enhance the firm's chances of being heard.
"The selection of Bork as counsel is a way to play on Bork's friendship with (Chief Justice William H.) Rehnquist," said someone who is close to the case and wanted to remain anonymous.
According to this source, Dean Witter and Visa met together with the Justice Department in January. Dean Witter was told that the department would not support the company's petition to the Supreme Court.
"Bork only took on such a prominent position once Dean Witter knew that the Justice Department would not support it," said the source.
Visa would not comment on whether such a meeting occurred, and lawyers from Kirkland & Ellis would not return phone calls. Other sources said both parties have initiated many meetings with federal agencies during the course of the litigation.
It is common, say legal experts, for parties seeking a Supreme Court hearing to try to enlist the Justice Department's support. Occasionally, the court will ask for the Justice Department's opinion before it decides to hear a case.
Donald I. Baker, a former assistant attorney general for antitrust who now runs a law firm in Washington, said a typical case has about an 8% to 10% chance of being heard by the high court. "If Justice supports you, your chances improve to 40% or 50%," he added.
One unexpected, formal antagonist of Visa is American Express Co., which filed an amicus brief on behalf of Dean Witter on Nov. 3.
At the heart of the case is a Visa bylaw that prohibits both Dean Witter and American Express from issuing Visa cards. Dean Witter, which owns the Discover Card, contends the bylaw is anticompetitive, in violation of antitrust laws. American Express agrees.
"I found (American Express') filing intriguing," said Paul A. Allen, Visa's executive vice president and general counsel. "They finally went public, which speaks volumes to the results should Discover prevail."
Mr. Allen was alluding to a widespread rumor about American Express' interest in issuing bank cards.
"An American Express lawyer sat through three and half weeks of trial testimony in Salt Lake City" in 1992, Mr. Allen said. "He observed every hearing, attended the Court of Appeals, and prior to the trial made the startling request to participate in the discovery of this case - which is the legal exchange of documents, which is also an almost unprecedented request from someone who is not a party to the action."
Few observers were surprised by American Express' siding with Dean Witter. American Express has long had a contentious relationship with Visa, from both legal and competitive standpoints.
Followers of the litigation expect other companies and prominent individuals to file briefs in the coming weeks supporting Dean Witter.
As one source put it, "The amount of money at the table must be astronomical."
