It may be wishful thinking, but credit card industry executives and lawyers say the rulings and requests handed down recently by federal judge Barbara S. Jones in the Visa/MasterCard antitrust case are a good sign that her verdict is imminent.
Though it is not clear what has taken so long people involved with the trial are quick to dismiss the suggestion that Judge Jones was waiting to gauge the philosophy of the Bush-era Justice Department the first sign since February of fresh activity from Judge Jones on the case took place on July 28 (notably, a Saturday), nine months after the trial ended.
On that day Judge Jones, who is seated in the Southern District of New York, issued a handful of orders, including a notice that she plans to promptly unseal all previously sealed trial testimony. Visa and MasterCard were given until the end of business on Monday, Aug. 13, to raise specific objections to the unsealing, which they filed confidentially on Monday.
Legal sources said the unsealing of the testimony would be standard procedure, since the general inclination of the court is to make public as much of the record as possible. However, in the Visa/MasterCard case, the very event of a procedural order speaks volumes.
Its unequivocal she is about to issue a decision, said Lloyd Constantine, the lead attorney in a different antitrust suit against Visa and MasterCard, the class action commonly referred to by the name of its main plaintiff, Wal-Mart Stores Inc.
Judge Jones order seems to indicate that she plans to mention certain sealed testimony in her opinion, Mr. Constantine said. Even if she does not cite any of it directly, the sealed testimony may still have informed her opinion, in which case she would want it to be made available for public scrutiny, the attorney said.
At last summers trial, various witnesses including executives from American Express Co. and Discover Financial Services Inc. were granted protective orders for their testimony.
At one point, Morgan Stanley Dean Witter & Co., the parent company of Discover, submitted a memo to the court seeking confidentiality protections for the deposition testimony of Discovers president and chief operating officer, David Nelms. The release of the trade secrets included in his testimony would result in extensive and irreparable harm to Discovers business, the memo stated.
Sharon Gamsin, a spokeswoman for MasterCard, said the company asked the judge that details about agreements with members and ongoing business initiatives be kept under seal. Visa spokesman Kelly Presta gave a similar synopsis in a written press statement, but also said that the association would have no objection to the release of any other documents.
On Tuesday afternoon, Dow Jones reported that the Justice Department submitted a letter to Judge Jones backing the confidentiality of certain testimony, including that of American Express executives about Amexs negotiations with bank issuers, and depositions by Citigroups former CEO, John Reed, and two Bank of America executives.
While Judge Jones unsealing notice does seem to indicate that she is clearing the decks (as one insider put it), several observers said the document does not point to which way she is leaning.
I dont know whether you can read those tea leaves, said Brian Smith, a partner in the Washington office of the law firm of Mayer, Brown & Platt and a former general counsel for MasterCard.
Last year, when Judge Jones cancelled the associations closing arguments, some onlookers read the move as a grim one for the government. They speculated that if the judge were leaning against Visa and MasterCard, she would have been disposed to hear them out.
However, Mr. Smith said that the closing arguments may have seemed to the judge like a simple waste of time, and that she may not have wanted to listen to biased summaries of testimony she had already heard. The judge seems pretty strong about saying, Dont bother throwing information at me.
Another order released the same day as the unsealing notice seems to make the same statement: Judge Jones denied a government motion to introduce new evidence to the record.
That evidence, which was submitted to the court July 9, consisted of a MasterCard press release about its acquisition of the European network Europay. Judge Jones said that the release did not prove anything relevant to the case, and that the government had had the opportunity to develop the record on this topic during the trial.
While some sources predict that Judge Jones will issue a verdict in a matter of weeks, August is not typically an active time for the judicial system. Some say Judge Jones may want to wrap this case up before the next changeover of clerks takes place (presumably next month).
But Judge Jones schedule for the next two weeks, which includes only criminal status conferences, indicates that she does not plan to engage in any trial activity. A recent issue of New York magazine reported that Judge Jones would accompany U.S. Attorney Mary Jo White on a whitewater-rafting trip in the Grand Canyon sometime this summer.
Sources dismissed the notion that Judge Jones might be waiting for cues from the new administrations antitrust officials before deciding the case. Judge Jones, a 1996 Clinton appointee, is considered an independent-minded judge.
In any case, it is not clear that the Bush administrations antitrust policies will diverge as much from the Clinton administrations as was once speculated. In June the Justice Department surprised the legal community when it announced that it would continue a Clinton-era case by appealing a judges dismissal of antitrust charges against American Airlines.
Notably, both Charles James, the head of the Justice Departments antitrust division, and U.S. Solicitor General Theodore Olson had to recuse themselves from the case because their previous law firms had represented American.
If Judge Jones decides against the government in the Visa/MasterCard case, and the Justice Department appeals her decision, Mr. James would have to recuse himself from this case as well.
As a Washington partner in the Cleveland-based firm of Jones Day Reavis & Pogue, Mr. Jones represented National Processing Co., a third party in the card case, which submitted an amicus brief in favor of the card associations.
Other officials who would have to recuse themselves from future cases involving Visa and MasterCard include Joseph J. Simons, the director the Federal Trade Commissions competition bureau, and Michael L. Katz, the newly appointed head of Mr. James economic analysis group.
Mr. Simons represented MasterCard in other legal matters at his former firm, Clifford Chance Rogers & Wells. Mr. Katz, a professor at the University of California at Berkeley, was the governments expert witness in Judge Jones case.