A Wal-Mart employee-training videotape may prove a key piece of evidence for Visa and MasterCard in the upcoming trial over debit card rules, which had a dress rehearsal of sorts on Friday.
The tape shows the difference between Visa and MasterCard debit cards and other types and instructs cashiers to encourage customers to use the other types.
Visa U.S.A. and MasterCard International have been sued by Wal-Mart and other retailers over the rates they charge for debit card acceptance. The card associations argued at a court hearing Friday that the videotape was proof that merchants have ample leeway in payment card acceptance, and that Wal-Marts tardy delivery of the tape to the defense, in addition to other discovery abuses, constituted suppression of evidence.
Judge John Gleeson of U.S. District Court for the Eastern District of New York did not rule on the first claim, but denied a motion by Visa and MasterCard to dismiss Wal-Mart from the lawsuit because of evidence problems.
The card companies are defending themselves in the class action while awaiting a verdict in the Justice Departments antitrust case against them. They had argued that Wal-Mart the original plaintiff in the debit card lawsuit should be tossed from the case because it failed to produce the training video during the discovery period, and instead submitted it only after Visa and MasterCard filed their motion about evidence suppression.
A lawyer for Wal-Mart said the tape had not been produced sooner because it had been mislabeled at corporate headquarters.
Judge Gleeson said Friday that even if he believed Wal-Mart had suppressed or destroyed evidence, he would not decide the case as a matter of law until the evidence could be presented to a jury.
No date for the trial has been set, pending a decision by an appeals court on Visa and MasterCards challenge to the class action status of the trial, which Judge Gleeson had approved.
Despite the judges ruling Friday, lawyers for the card associations said Visa and MasterCard still have recourse to some form of relief, such as the legal costs of the motion. The lawyers also said that the evidence presented at the hearing will reappear perhaps more effectively in trial.
In the training video, which both sides agreed had been found at several stores (and also at corporate headquarters, Wal-Mart said), Wal-Mart cashiers are told how to identify and process different payment types. They are instructed to encourage debit card transactions which the tape said cost the company 10 to 15 cents each, versus 75 cents for a credit card transaction and shown the difference between signature-based debit cards, which bear the Visa and MasterCard logos, and PIN-based debit cards, which do not.
The tape does not quantify the price difference between the two types of debit, but it explains the companys preference for PIN-based debit cards and says that fostering debit card use means millions of dollars of savings for our company.
A lawyer for the card associations, Brian P. Brosnahan of the San Francisco firm of Heller, Ehrman, White & McAuliffe LLP, said there was great incentive for Wal-Mart to suppress the tape, because it contradicts Wal-Marts assertion that association rules forbid the retailer to steer its customers to use PIN-based debit.
Mr. Brosnahan said the tape also undercuts Wal-Marts claim that Visa deliberately designed its debit cards to look identical to its credit cards. He stopped the tape at a point when cards displaying different electronic funds transfer network logos are shown, and highlighted a shot of the Visa check card.
Visa and MasterCard also presented a videotape of testimony by Stephen Hunter, Wal-Marts director of finance, who, when asked if the company had ever trained its cashiers to identify debit cards, responded, Not to my recollection. When asked to describe ways that Wal-Mart trained cashiers to recognize payment types, Mr. Hunter said only that oral communication had been used.
Mr. Brosnahan used that tape to accuse Mr. Hunter of suppressing the training video during discovery. Judge Gleeson asked lawyers for Wal-Mart, What did Hunter do? Did he forget about this video?
Robert Begleiter of the New York firm Constantine & Associates replied that Mr. Hunter may have forgotten about the training tape. There were some mistakes made, Mr. Begleiter said. Were not perfect. But he said Wal-Marts discovery lapses did not meet the definition of spoliation, or destruction of documents.
Judge Gleeson told Visa and MasterCard that to dismiss the lead plaintiff from the case would be too onerous even if everything you tell me is correct. The judge said, Maybe youre right. Maybe this Hunter guy is a liar. But why should I decide now as a matter of law before the evidence is presented?
After the hearing, MasterCards deputy general counsel, Noah Hanft, said that even though his side lost the ruling, the motion has been successful in forcing Wal-Mart to produce documents.
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