Some of the most powerful corporations in consumer credit may have to pull together in court to protect one of their industry's last surviving oases from the competitive fray.
The National Foundation for Consumer Credit, which enjoys the support of virtually all major consumer lenders, has been hit by an antitrust lawsuit. Lawyers for the foundation and its industry supporters downplay their legal risks, but a defeat, however improbable, would rock the credit establishment to its core.
The NFCC is the umbrella group for what appears to be a noncontroversial network of more than 1,100 offices that counsel consumers through debt problems, preserving lenders' portfolios in the process.
The biggest names in consumer lending - bank and nonbank, MasterCard and Visa, American Express and Discover - financially and vocally support the foundation. Lenders routinely refer problem accounts to NFCC-member counselors for education, debt management, and recovery programs.
But beneath the surface of credit-counseling unity are insurgents, including a group of 13 independent agencies operating in 11 states that have sued the national foundation and its members for alleged monopolistic practices.
Also named in the complaint are Discover Card Services Inc., for allegedly being worst among the lenders in keeping business away from the independents; and more than three dozen credit industry executives who sit on the national foundation's board.
The defendant list is a Who's Who of consumer credit, including representatives of Citicorp and Chase Manhattan Bank, CoreStates and NationsBank, Sears and J.C. Penney, Equifax and TRW, MasterCard and Visa, as well as a host of regional credit counseling agencies.
They are accused of "keep[lag] out any actual or potential competitors, steering consumers to the members [of the NFCC] where they fall into the hands of collection agencies for the credit grantors, all the time being misled into believing that such agencies work as counselors and advocates for the consumers."
Though the suit seeks up to $125 million, including trebledamage relief under the antitrust laws, it has gotten little attention since it was filed in March in U.S. District Court for the Eastern District of New York, which is based in Brooklyn.
Kenneth Scott, the National Foundation for Consumer Credit's public relations spokesman, said he responded quickly With a statement criticizing the charges, but it got almost no press attention.
Hoping to generate more interest, the plaintiffs' lawyers, the New York-based firm of Storch Amini & Munves, enlisted their own public relations representative to put out a press release last week. It summarized the charges against the NFCC, its leadership, and the Discover Card group, in hopes of setting the stage for a preliminary heating scheduled at the end of September.
Attorney Bijan A.mini said Judge Carol Bagley Amon will first have to rule on motions to dismiss the case, coming from defendants in other states who say New York is not an appropriate trial venue.
Mr. Amini said if the ruling goes against his clients, they will sue anywhere they have to. "We think given the nature of this business, New York or anywhere else is an appropriate place," Mr. Amini said. "The next most obvious place would be Washington," near the National Foundation for Consumer Credit's Maryland headquarters.
The 13 agencies Mr. Amiui represents are members of the Association of Independent Credit Counseling Agencies. With offices in 14 cities, they are barely a blip on the NFCC-dominated national credit counseling scene, though they may be significant in their local areas.
The issues the independents raise are not unfamiliar to the NFCC and its board, which have had mavericks in their midst.
Just this year, one of the largest agencies, Budget and Credit Counseling Services of New York City, resigned from the national foundation. The New York group's chief executive, Luther Gatling, said he had philosophical and policy differences with the national body and had problems with its dues structure.
The competing independent association, which does not include Mr. Gatling in its membership, is led by Robert Ducker, a persistent critic of the NFCC. Mr. Ducker also heads Garden State Consumer Credit Counseling Inc. of Freehold, N.J., one of the plaintiffs in the lawsuit.
Independents based in Florida, Illinois, Indiana, Iowa, Minnesota, Montana, North Dakota, Ohio, and Oregon have climbed aboard with Mr. Ducker and Garden State. Eleven of the 13 plaintiffs are not-for-profit corporations, as are the NFCC affiliates.
Mr. Amini said the independents' long-simmering complaints about the NFCC and its rulemaking power boiled over when Discover Card Services said it would make consumer referrals only to NFCC members.
Riverwoods, Ill.-based Discover, like others named in the litigation, is not commenting on its referral policy or other particulars, and is letting the NFCC speak for the entire group.
Durant S. Abernethy 3d, president of the national foundation, said Wednesday that his organization is focused on public service, not market control or profit motive.
"The plaintiffs do not understand us or our business," Mr. Abernethy stated. "Our mission is people, not money .... The plaintiffs know that [and] are simply trying to coerce more creditors into doing business with them."
According to Mr. Amini and other industry sources, Discover negotiated a lower price from the NFCC: In return for exclusively dealing with NFCC member agencies, Discover would pay them about 12% of recovered amounts. This donation for administrative and loan-recovery assistance, known in the industry as "fair share," had customarily been 15%.
The independents say their inability to work on Discover accounts is the result of an illegal business deal and threatens their livelihoods.
Their other point is that, in supposed contrast to the independents, the NFCC and the credit-granting establishment have lost sight of their mission of encouraging moderation and. preventing bankruptcies, and .are more focused on incomeproducing tasks more appropriate for debts-collection agents.
The NFCC, by Contrast, views itself as a bastion against bankruptcy. It claimed a breakthrough last year when its constituent agencies were contacted by more than a million consumers - a number that for the first time exceeded personal bankruptcy filings. Mr. Abernethy said that was a sign that NFCC-sanctioned counselors were fulfilling their mission.
The antitrust complaint said NFCC agencies had at least $100 million of revenue on more than $1 billion of collections in 1992, which amounts to more than 70% of the debt counseling market.
In his statement Wednesday, Mr. Abernethy accused the independents of having an "obsession for making money" that obscures the NFCC affiliates' "commitment and mission to provide human services."
He also denied having any concern with market shares and said local counseling services not the national group - negotiate creditors' contribution levels. The protesters claim this was not the case with Discover, which prompted the lawsuit.
"Creditors are free to choose with whom they do business and to whom they refer their own customers for help," Mr. Abernethy said.
"We could have gone after other credit grantors, but Discover has harmed our clients the most," Mr. Amini said. "Discover's actions brought the group I represent together and made it cohesive.
"It was not just the fair-Share issue;' he added. "Discover refused to deal with our members' clients, and that is a serious blow in our market."
While Discover accounts represent less than 10% of outstanding consumer credit, Mr. Amini said, Discover is the most popular brand of generalpurpose credit card, with 40 million holders.
"Half the people who come in the door [of a credit counselor] have Discover," Mr. Amini said. "If you can't service that account, and the counseling agency across the street can, that puts you at a big disadvantage."
Just as the NFCC has faced some internal dissent, as would be inevitable in such a broadbased group, the independent association was not unanimous about filing the antitrust suit, so 13 of its members filed jointly.
Alan Franklin, head of American Credit Alliance, an independent in Trenton, N.J., speaks highly of his upstate colleague Mr. Ducker and supports many of the suit's principles.
But Mr. Franklin believes it will be difficult to make antitrust charges stick against a nonprofit association like the NFCC, and he thinks it is a mistake to risk alienating Discover further. He said it would have been in Discover's interest, and the industry's, to negotiate an inclusive referral policy before having to air differences in court.
Mr. Franklin, a one-time American Express executive, started his not-for-profit counseling agency last year with. an emphasis on working with creditors to be "proactive," rather than waiting for referrals after loans have gone very sour.
His application to join the national foundation was rejected last year, and when he has a client working out Discover debts, he said he handles that account pro bono, if at all.