Does Judge’s Move Signal Victory for MasterCard, Visa?

Observers of the Justice Department’s antitrust case against Visa and MasterCard say that the judge’s decision to cancel closing arguments may mean simply that she has heard enough — or it could mean that she has already decided in favor of the credit card associations and merely wants time to write up her opinion.

Though all theories are speculative, people who have been following the trial say the judge, Barbara Jones of U.S. District Court for the Southern District of New York, would probably be reluctant to slam the card companies without giving them a final say.

As one lawyer close to the case put it, “One might think that if she were going to restructure the industry she would create a record of having heard all argument.”

To be sure, Judge Jones still has all her options open. She could change her mind and decide to hear closing arguments — which had been scheduled for Monday — at a later date, or she could issue her decision any day.

Observers said that since the trial began in May, the judge has been speedy and efficient in issuing rulings and moving the proceedings along so that it would seem likely she would bring the case to some kind of conclusion within a few weeks.

Even one lawyer whose sympathies tilt toward the government, Lloyd Constantine, principal of the New York law firm Constantine & Partners, reads the decision as bad news for the Justice Department.

“Generally, you would expect the judge to give Visa and MasterCard the opportunity to present closing arguments if the judge were leaning in the direction of ruling against them,” said Mr. Constantine, who is lead counsel in a civil lawsuit against Visa and MasterCard brought by the nation’s largest retailers. “She is leaning in favor of ruling for Visa and MasterCard and against the government. I can’t imagine any other spin.”

On the other hand, Mr. Constantine said, the cancellation of closing arguments may simply be an attempt on the judge’s part to catch up with reading the massive amounts of evidence presented in the case.

“She has got a lot to read, and the closing arguments would be less valuable to her until she reads them,” he said. “Then she would be in a position where closing arguments would assist her.”

If the government wins, Visa and MasterCard will be certain to appeal. Lawyers interviewed Wednesday were divided over whether the cancellation of final arguments would give the card associations any extra legal help in an appeal.

Andrew Mohan, Judge Jones’ deputy clerk, said he did not know if the judge planned to reschedule the oral arguments. If she does not, the next procedural move would be to issue her decision, which she could do in a number of ways, he said: by faxing it ahead of time to all the parties involved, by calling them to come pick it up, by convening court, or simply by filing it with the clerk of the court, which would make it available to everyone — including the public — at the same time.

Anita Boomstein, a partner in the Manhattan law firm of Hughes, Hubbard & Reed who specializes in credit card law, said many judges routinely opt out of final oral arguments unless there are particular questions they want to ask.

“The consensus is, you can’t draw any conclusions from it,” Ms. Boomstein said. “She may feel she has sufficient information based on the briefs submitted, or it may be she is not ready to hear oral arguments. She did not indicate whether she has canceled it forever. You can’t say it favors either side, because we don’t know the reason for her decision to cancel the oral argument.”

Ms. Boomstein added that she has been “on record all along saying the government’s case is weak.” She did not feel “their argument supported the testimony finding in the government’s favor.”

Brian Smith, a partner at the Washington law firm of Mayer, Brown & Platt who once was MasterCard International’s general counsel, said he also thought the government had failed to prove its case, but that Judge Jones’ move probably did not reflect that.

“While I think it’s an indication that the court views that the facts are clear, I don’t think it indicates that she has made up her mind who has won,” Mr. Smith said.

“There is incredible competition among the credit card companies,” he said. “The consumer has been well-served by this competition. I think the Justice Department’s remedies are unresponsive to reality. I think it’s just an activist antitrust division not having a complete appreciation of the history and operation of these systems.”

Duncan McDonald, former general counsel of Citibank’s card business for Europe and North America, concurred with the view that enough was enough.

“She’s gone through three months of the trial,” he said. “She’s read 5,000 pages of documents that are wildly repetitious. The word among the folks is what a masterful job she has done. They all seem to agree they’ve never seen a judge that has kept her opinion so close to the vest.”

Representatives of the parties to the case — the Justice Department, Visa U.S.A., Visa International, MasterCard, American Express Co., and Discover Financial Services — were circumspect in their observations.

“This is not the time, when the judge is on the cusp of making a decision, to predict with bravado how the judge is likely to rule,” said one observer familiar with the Justice Department’s case. “We don’t want to read tea leaves.”

Part of the hesitation to offer an opinion on the judge’s likely next move is the observation, made by many, that the judge does not readily communicate her thinking on arguments, though she is an active, involved questioner.

Noah Hanft, MasterCard’s deputy general counsel, said in an interview: “Insofar as the court’s cancellation of the oral arguments, we don’t think that there’s any basis to draw any inference from that either way. We continue to be very confident in our legal position.”

Visa U.S.A. also took a neutral stance in a statement it issued Tuesday. “I simply don’t know” what the judge’s move means, said Mike Reilly, a Visa spokesman.

After this trial is over Visa and MasterCard will defend themselves against the class action brought by the retailers, who are protesting the prices charged for debit card acceptance. Mr. Constantine, the lawyer spearheading that case for the plaintiffs, said the result of the antitrust suit will have little effect on the merchant lawsuit, except perhaps for a psychological one.

Mr. Constantine said he would “prefer the government to win for the emotional factor” of sending Visa and MasterCard to their next lawsuit with a loss under their belts. “If the government wins that case, all the problems we have are the same. It doesn’t change our case.”

Jennifer A. Kingson contributed to this story.

From Our Archive:

• Information on the Hon. Barbara S. Jones, United States District Judge (Source: United States District Court for the So. District of NY)
• Cards Judge May Have Come to Decision - October 11, 2000
• Visa, MasterCard File Proposed Findings - September 26, 2000
• MC Witness: Justice's Plan Would End Dual Issuance - August 23, 2000