The Justice Department's antitrust division has stepped up its investigation of charges that the membership policies of Visa and MasterCard are restrictive.
The agency recently called in one of its former attorneys to assist in the inquiry. The hiring of Jeffrey Blumenfeld, who is in private practice in Washington, is an indication of the department's serious intent, legal observers said.
Also, within the past several weeks, the Justice Department delivered formal requests for information to members of the card associations' boards and the banks they represent.
Some banks that received the subpoena-like requests, known as Civil Investigative Demands, blame American Express Co. for stirring up the pot. The company has been stymied in its attempts to offer cobranded cards with banks by a Visa U.S.A. bylaw that prohibits such cooperation.
MasterCard's decision in July to adopt a policy similar to Visa's, disallowing bank issuance of cards with American Express or Dean Witter, Discover & Co., prompted the Justice Department's recent action, sources said.
Dean Witter has also had discussions with Justice, and stands to benefit if the agency concludes that Visa's and MasterCard's membership rules are anticompetitive. But Dean Witter has kept a lower profile than American Express and has not suffered the same rancor from bankers.
"MasterCard added impetus to the investigation," said Lloyd Constantine, the former assistant attorney general in charge of New York antitrust enforcement who now runs a private practice in New York. "They knew an investigation was already under way, but they had to say, 'me too.'"
The investigation was launched shortly after a decision in July by the European Union's competition regulator denying Visa's attempt to "export" its U.S. rule. American Express had filed a complaint against Visa with the EU's competition regulator.
Emboldened by its success in Europe, American Express filed similar complaints last month with government agencies in Mexico, Argentina, Brazil, Colombia, and Puerto Rico against Visa, which had said that it would consider exporting its U.S. rule to that region. After American Express filed its complaints, Visa's executive in charge of Latin America, James F. Partridge, said the association's regional board is not planning to vote on the issue when it meets later this month.
On Thursday, American Express applied more pressure in Latin America by filing a similar complaint against Visa in Chile. It also announced that the government officials in Argentina and Brazil responsible for competition issues said they are investigating American Express' claims.
Thomas O. Ryder, international president at American Express Travel Related Services Co., said: "If Visa won't clarify this issue once and for all, then we believe it is in the public's interest to have antitrust authorities do so."
The suspicions that American Express is behind the Justice Department probe has not endeared the travel and entertainment company to some of the banks it hopes to work with.
One banker who is gathering the information requested by the Justice Department, said, "American Express might be shooting itself in the foot by alienating the banks that have to go through this investigation process."
A credit card executive said American Express could be jeopardizing its relationship with many major banks that sell its travelers checks.
Another banker, while conceding that the investigation has stirred a lot of emotion, said "when it's all said and done most of us make business decisions. People look at numbers."
American Express may not care whether it angers or inconveniences MasterCard and Visa board members.
Kenneth I. Chenault, vice chairman of American Express said, "I can see why the associations might be somewhat annoyed, but with respect to the individual banks, I don't see what they lose. There may be one or two large banks who like having the business all to themselves, but they wouldn't be super inclined to do business with us anyway, so I wouldn't shed a lot of tears for their concern."
American Express may be more interested in courting small to midsize banks it views as more vulnerable to competitive pressures and more receptive to using its brand name.
When asked to comment on the Justice Department initiative, Mr. Chenault would say only: "It appears they are very serious, by what has happened. The focus is to open up freedom of choice for consumers and to enable the majority of banks to operate profitably. I'm glad they are taking a look."
It appears from the questions Justice has been asking banks that it is looking for evidence that Visa, MasterCard, and the banks on their boards conspired against American Express and Dean Witter to harm them competitively.
Mr. Chenault suspects the biggest banks represented on the card association boards want to "keep American Express out. I think you have a situation where the tyranny of a few (is) operating against the majority interest of the association."
The bankers who agreed to discuss the Justice investigation all requested anonymity. They said they are not talking about the investigation even among themselves, fearing that casual conversations could land them in court. Chase Manhattan Bank is the only institution that publicly acknowledged receiving the investigative demands.
One banker said the Justice Department is concerned with whether "it is appropriate for associations and the banks that govern them to be restrictive."
Another described the investigation as a "witch hunt."
The Justice Department has requested any documentation of conversations between the banks and the associations or among board members with regard to American Express and Dean Witter, including memos and electronic communications. It asked whether the banks are hooked up to Visa and MasterCard via E-mail, and if so, what process does the bank have in place to reproduce such correspondence.
The department also asked banks to divulge their plans and strategies for future growth, issues that have "no bearing on the bylaw," one banker complained.
Attorneys representing banks have declined to answer some of the department's requests, calling them "irrelevant." Some banks have requested extensions on the four-week deadline they were given to gather information.
"This is going to be messy," a banker said.
Nevertheless, the bankers are confident the government will come down on their side, not finding evidence of collusion.