March 14, 2003 -- MasterCard Files Severance Motion In Wal-Mart Antitrust Lawsuit Asks Judge to Order a Separate Trial

Purchase, NY - MasterCard International today asked U.S. District Court Judge John Gleeson to sever the plaintiffs’ claims against MasterCard in the Wal-Mart antitrust suit against MasterCard and Visa scheduled to go to trial on April 28 in Brooklyn, NY, and order separate trials. In papers filed today, MasterCard told Judge Gleeson that a joint trial would be prejudicial to MasterCard and could cause substantial jury confusion.

MasterCard also has a motion pending before Judge Gleeson to dismiss the case on summary judgment. If the case is not dismissed on summary judgment, and it goes before a jury, jurors would hear evidence plaintiffs contend demonstrates anticompetitive conduct on the part of Visa. Despite MasterCard’s long history of support for on-line debit, its position would be undermined by testimony relating to alleged conduct of Visa directed against the regional on-line debit networks.

Although it believes the underlying case is wholly without merit, MasterCard seeks a separate trial to avoid the substantial prejudice that would result from the introduction of evidence relative to Visa’s alleged conduct and statements before the same jury deciding the separate claims against MasterCard.

In its motion to sever, MasterCard explained that the law clearly states that evidence concerning one party cannot be offered against the other unless it is first established by a preponderance of the evidence that there was a conspiracy between the two organizations. This is a standard that is higher than that required in the summary judgment motion currently before the court.

“After more than six years of litigation, 350 fact and expert depositions, and the exchange of millions of documents, plaintiffs have not - and cannot - prove by any evidence, much less a preponderance of evidence, any conspiracy between MasterCard and Visa,” Noah J. Hanft, MasterCard’s general counsel, said.

“MasterCard believes that if given the opportunity to have a full and fair trial based purely on its own acts, the case against it will fail, and its Honor All Cards rule, which requires that merchants who agree to accept MasterCard accept all MasterCard-branded cards, will be recognized as being pro-competitive and providing American consumers with the broadest choice of payment options in the world,” Hanft said.