Seeking to influence the Justice Department in its probe of the bank card associations, American Express Co. has been employing Robert H. Bork, an expert in antitrust law and former appellate judge.
Mr. Bork, a subject of national controversy in 1987 when the Senate rejected his nomination to the Supreme Court, registered with Congress last April as a lobbyist for American Express. The Justice Department had not then filed its antitrust charges against Visa U.S.A. or MasterCard International.
On the registration form, Mr. Bork described his purpose as "petitioning the Department of Justice to litigate"-naming Visa as his concern.
His involvement in the matter was brought to American Banker's attention by a card association source. How he influenced the probe is uncertain, but his role underscores American Express' behind-the-scenes aggressiveness on the matter.
In a telephone interview last week, Mr. Bork said he met twice with Joel I. Klein, assistant attorney general of the Justice Department's antitrust division, and had other meetings with U.S. senators.
Mr. Bork-who described his business on the lobbying document as "author/lecturer/legal consultant"-said he worked with American Express intermittently during the two-and-a-half-year government investigation. Amex paid him less than $10,000, according to the form obtained by American Banker.
"He clearly has tremendous expertise on antitrust, and his opinion is one that counts in antitrust circles," said American Express spokeswoman Gail Wasserman.
It was not Mr. Bork's first employment in a card controversy. In 1994, Dean Witter, Discover & Co.-now part of Morgan Stanley Dean Witter-sought his counsel after losing an appeal in a case against Visa.
Dean Witter had sued for the right to issue Visa cards through a thrift it had acquired in Utah. Mr. Bork was retained to help convince the Supreme Court to hear the case, which it eventually declined to do.
In the lawsuit filed Oct. 7, the Justice Department is targeting card association rules that prohibit banks from issuing competitors' products, most obviously Discover and American Express. The department also wants to change aspects of MasterCard and Visa governance that it views as anticompetitive.
Mr. Bork, a conservative with a free-market bent who in past antitrust writings showed an avid interest in price-fixing, said there is a distinction between the two card cases he worked on but "basically it is the same idea."
Donald I. Baker, a former assistant attorney general for antitrust who has done some work for Visa, said American Express, though not a party to the government lawsuit, "is surely an important moving force. It might be the government's principal complainant."
Mr. Baker, now running the Washington law firm Baker & Miller, said Mr. Bork is "an eminent antitrust expert. Maybe he gave the Department of Justice and Joel Klein some comfort in their decision." u