ADMINISTRATIVE MOTION FOR AN EXPEDITED CASE MANAGEMENT CONFERENCE… — United States v. Visa Inc. and Plaid Inc. (Dkt. 42)

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Visa Inc. and Plaid Inc. file this Administrative Motion for an Expedited Case Management Conference in United States of America v. Visa Inc. and Plaid Inc., No. 4:20-cv-7810-JSW, under Civil Local Rule 7-11. They ask the Court to convene one at the earliest possible opportunity, and they state that the clerk has set an initial case management conference for March 26, 2021. They state that they proposed a February 23, 2021 trial date, and that DOJ proposed a trial date at the end of July 2021 and then September 7, 2021. The motion states that DOJ's strategy is to delay the trial as long as possible. The signature line for Plaid Inc. reads /s/ Jonathan M. Jacobsen, with an attestation by /s/ Jack P. DiCanio.

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ADMINISTRATIVE MOTION FOR EXPEDITED CASE MANAGEMENT CONFERENCE 
CASE NO. 4:20-cv-7810-JSW 
 
Jack P. DiCanio (SBN 138782) 
SKADDEN, ARPS, SLATE,  
     MEAGHER & FLOM LLP 
525 University Avenue, Suite 1400 
Palo Alto, California 94301 
Telephone: (650) 470-4500 
Facsimile: (650) 470-4570 
Email: Jack.DiCanio@skadden.com 
 
Steven C. Sunshine (pro hac vice pending) 
SKADDEN, ARPS, SLATE,  
     MEAGHER & FLOM LLP 
1440 New York, N.W. 
Washington, D.C. 20005 
Telephone: (202) 371-7000 
Facsimile (202) 393-5760 
Email: steven.sunshine@skadden.com 
 
Attorneys for Defendant 
VISA INC. 
 
[Additional counsel listed on signature page] 
 
Jonathan M. Jacobson, SBN 1350495 
WILSON SONSINI GOODRICH & ROSATI 
Professional Corporation 
1301 Avenue of the Americas, 40th Floor 
New York, New York 10019 
Telephone: (212) 497-7758 
Facsimile: (212) 999-5899 
Email: jjacobson@wsgr.com 
 
Justina K. Sessions, SBN 270914 
WILSON SONSINI GOODRICH & ROSATI 
Professional Corporation 
One Market Plaza, Spear Tower, Suite 3300 
San Francisco, California 94105 
Telephone: (415) 947-2000 
Facsimile: (415) 947-2099 
Email: jsessions@wsgr.com 
 
Scott A. Sher, SBN 190053 
WILSON SONSINI GOODRICH & ROSATI 
Professional Corporation 
1700 K Street NW, Fifth Floor 
Washington, DC 20006 
Telephone: (202) 973-8800 
Facsimile: (202) 973-8899 
Email: ssher@wsgr.com 
 
Attorneys for Defendant 
PLAID INC. 
 
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 
OAKLAND DIVISION 
 
 
UNITED STATES OF AMERICA 
 
 
 
 
 
Plaintiff, 
 
 
 
v. 
 
VISA INC. and PLAID INC., 
 
 
 
 
 
Defendants. 
 
CASE NO.: 4:20-cv-7810-JSW 
 
DEFENDANTS’ ADMINISTRATIVE 
MOTION FOR AN EXPEDITED CASE 
MANAGEMENT CONFERENCE 
 
 
 
Case 4:20-cv-07810-JSW   Document 42   Filed 11/17/20   Page 1 of 8

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1 
ADMINISTRATIVE MOTION FOR EXPEDITED CASE MANAGEMENT CONFERENCE 
CASE NO. 4:20-cv-7810-JSW 
 
Pursuant to Civil Local Rule 7-11, Visa Inc. and Plaid Inc. (“Defendants”) respectfully 
request that the Court convene a case management conference at the earliest possible opportunity 
to address scheduling and other case management issues.  The Antitrust Division of the United 
States Department of Justice (“DOJ”) is seeking to block Visa’s time-critical acquisition of Plaid, a 
deal that was signed up in January 2020, and that DOJ has been investigating for ten months.  The 
DOJ concedes that Plaid is not a competitor of Visa (see Dkt. 1 ¶ 8), and so DOJ is challenging the 
acquisition under Section 7 of the Clayton Act under the “actual potential competition” theory.  
Knowing that the government lost the only actual potential competition case to be tried in nearly 40 
years, DOJ is trying to fashion a novel claim that the acquisition itself is an act of wrongful 
monopolization under Section 2 of the Sherman Act, a theory that to Defendants’ knowledge has 
not been litigated since the passage of Section 7 of the Clayton Act in 1950. 
Merger challenges move at a substantially faster pace to a bench trial than traditional 
federal civil litigation, see, e.g., 15 U.S.C. § 25 (providing that in an injunctive action under 
Section 7 of the Clayton Act, “the court shall proceed, as soon as may be, to the hearing and 
determination of the case”), because the intervening time pending a court decision can cause 
significant disruption and financial uncertainty for the companies.  The clerk has set an initial case 
management conference for March 26, 2021.  (Dkt. 41.)  Defendants, however, seek to have a case 
management conference as soon as possible so that the Court may set a case schedule and 
reasonable parameters for discovery consistent with past merger litigation timelines.  Defendants 
requested that DOJ join a motion for an expedited case management conference, but DOJ stated 
that it believed a case management conference is premature. 
The parties have vastly different views regarding the time needed to prepare for trial in this 
matter.  Consistent with the traditional expedited schedule followed in other merger challenges, 
Defendants have proposed a February 23, 2021 trial date.  DOJ, on the other hand, seeks to delay 
the trial.  In fact, during the parties’ meet and confer on schedule, DOJ proposed a trial date at the 
end of July 2021, and days later proffered the later date of September 7, 2021.  DOJ argues that its 
challenge requires more time than the typical merger litigation because it chose to add a novel 
monopolization claim to its Clayton Act challenge.  But the only relief sought is for the merger to 
Case 4:20-cv-07810-JSW   Document 42   Filed 11/17/20   Page 2 of 8

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ADMINISTRATIVE MOTION FOR EXPEDITED CASE MANAGEMENT CONFERENCE 
CASE NO. 4:20-cv-7810-JSW 
 
be enjoined.  Nothing justifies treating this case any differently from any other merger challenge.  
Both of DOJ’s claims challenge the very same conduct—the proposed acquisition—in the same 
putative relevant market and thus there is no basis for extending the expedited schedule typically 
adopted for merger challenges.  It is apparent that DOJ’s strategy in this action is to delay the trial 
as long as possible in the hopes that Defendants will simply abandon the transaction owing to the 
enormous pressure that time delays put on parties to substantial transactions.  Accordingly, 
Defendants request that the Court promptly set a case management conference to address these 
scheduling and case management issues.   
BACKGROUND 
On November 5, 2020, DOJ filed this action challenging Visa’s proposed acquisition of 
Plaid.  (Dkt. 1.)  The complaint admits that Visa and Plaid do not currently compete.  (Id. ¶ 8.)  
Instead, DOJ asserts that the acquisition would eliminate a potential competitive threat in a 
purported market for online debit transactions, in alleged violation of Section 7 of the Clayton Act, 
15 U.S.C. § 18, and Section 2 of the Sherman Act, 15 U.S.C. § 2.  (Id. ¶ 73.)   
Consistent with the expedited litigation schedule typically adopted for merger challenges, 
Defendants promptly contacted DOJ and provided a draft protective order for its consideration on 
November 6, 2020.  (Declaration of Steven C. Sunshine in Support of Defendants’ Administrative 
Motion for an Expedited Case Management Conference (“Sunshine Decl.”), Ex. A.)  Defendants 
requested that DOJ begin the process necessary for production of its investigative file since 
immediate access to the file is essential for Defendants to prepare their defense, especially given 
that DOJ’s investigation lasted ten months, and because to Defendants’ knowledge turnover of the 
investigative file always occurs early in government merger cases, typically as soon as a protective 
order is entered and the standard notice provisions are given to third parties.  Specifically, 
Defendants requested that DOJ immediately provide notice to and seek permission from third 
parties to make information they provided to DOJ in the course of its investigation available to 
Defendants.  Defendants agreed to treat all such third-party materials as confidential and limit 
access to outside counsel only until the Court has an opportunity to enter a protective order.  (Id.) 
On November 10, 2020, the parties participated in a meet and confer to discuss a proposed 
Case 4:20-cv-07810-JSW   Document 42   Filed 11/17/20   Page 3 of 8

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ADMINISTRATIVE MOTION FOR EXPEDITED CASE MANAGEMENT CONFERENCE 
CASE NO. 4:20-cv-7810-JSW 
 
case schedule, the protective order and the production of DOJ’s investigative file, as memorialized 
in Defendants’ November 11, 2020 letter.  (Sunshine Decl., Ex. B.).  Defendants proposed that the 
case proceed to trial in late February 2021, while DOJ indicated that it believed a trial date in late 
July 2021 was more appropriate.  Defendants asked DOJ to immediately notify third parties that 
their materials would be disclosed to ensure that the merger investigative file could be provided to 
Defendants as soon as possible, and noted that nothing prevented DOJ from doing so.  DOJ 
refused, stating that it would not notify third parties until a protective order has been entered, and 
would produce the investigative file before entry of a protective order only if Defendants agreed to 
trade that production with an agreement by Visa to produce materials withheld under a claim of 
privilege during the investigation.  (Id.)   
On November 13, 2020, DOJ responded to Defendants’ November 11 letter, abandoning its 
prior position that a trial should begin in late July 2021, and instead proposing an even later trial 
start date of September 7, 2021.  (Sunshine Decl., Ex. C.)  DOJ asserted that its extended schedule 
was justified based on its inclusion of both Section 2 and Section 7 claims in the complaint as well 
as the COVID pandemic and the possibility that an in-person trial might be feasible by late 2021.  
DOJ continued to refuse to contact third parties to seek consent to disclose their information to 
Defendants’ outside counsel until a protective order is entered, and continued to condition the 
production of its investigative file on Visa’s production of privileged documents.  (Id.)1   
On November 15, 2020, Defendants notified DOJ of their intention to move for an early 
case management conference and asked DOJ to join (Sunshine Decl., Ex. D), but DOJ stated that it 
believed a case management conference is premature (Sunshine Decl., Ex. E). 
ARGUMENT 
It is well established that merger challenges are tried on expedited litigation schedules.  15 
U.S.C. § 25; see also United States v. US Airways Grp., 979 F. Supp. 2d 33, 35 (D.D.C. 2013) 
(“Indeed, because of the need for the prompt resolution of this matter, the Court has set an 
                                                 
1  DOJ stated that its file contains a substantial volume of documents—“100G,” which we assume 
to mean 100 gigabytes or 100,000 documents—from third parties.  (Sunshine Decl., Ex. C.) 
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ADMINISTRATIVE MOTION FOR EXPEDITED CASE MANAGEMENT CONFERENCE 
CASE NO. 4:20-cv-7810-JSW 
 
expedited discovery and trial schedule.”); United States v. H & R Block, Inc., 833 F. Supp. 2d 36, 
44 (D.D.C. 2011) (“[T]he Court entered a scheduling order in this case that provided for an 
expedited schedule of fact and expert discovery and briefing on the government's anticipated 
motion to enjoin the transaction.”)  Defendants thus proposed a trial start date of February 23, 
2021, which is consistent with the time to trial of other recent DOJ merger challenges.  See, e.g., 
United States v. AT&T, Inc., No. 17-cv-02511-RJL (D.D.C. 2017) (122 days from complaint to 
trial); United States v. Anthem, Inc., No. 16-cv-01493 (ABJ) (D.D.C. 2017) (123 days from 
complaint to trial).  Indeed, a February 2021 trial date is particularly appropriate here given the 
lengthy investigation and extensive discovery that the government already has taken from 
Defendants and third parties.  Nothing about this case justifies a departure from the typical 
expedited schedule applicable to merger challenges, and DOJ’s delay is harming Defendants and 
the marketplace. 
First, nothing about DOJ’s Clayton Act theory compels an extended schedule.  Notably, the 
Supreme Court has left undecided whether “actual potential competition,” DOJ’s theory here, is 
even valid under Section 7.  United States v. Marine Bancorporation, Inc., 418 U.S. 602, 639 
(1974); United States v. Falstaff Brewing Corp., 410 U.S. 526, 537 (1973).  Even those courts that 
have assumed the validity of the doctrine have largely rejected such claims because plaintiffs are 
simply unable to prove that there is a reasonable probability that the purported potential competitor 
actually would have entered the market and that others were not equally capable of entering the 
market.  See, e.g., FTC v. Steris Corp., 133 F. Supp. 3d 962, 966, 978 (N.D. Ohio 2015) (outlining 
elements of actual potential competition claim while assuming, without deciding, validity of such a 
claim); United States v. Black & Decker Mfg. Co., 430 F. Supp. 729, 771-72 (D. Md. 1976) 
(holding government failed to show the absence of other equally-qualified potential entrants). 
Second, facing perhaps insurmountable obstacles in making a potential competition case, 
the DOJ added the entirely novel Section 2 monopoly claim.  This tactical choice to invoke Section 
2 does not justify an extended schedule because DOJ’s Section 2 claim challenges the very same 
conduct.  See Brown Shoe Co. v. United States, 370 U.S. 294, 318 & n.33 (1962) (explaining that 
Section 2 does not reach as far as Clayton Act Section 7).  Even accepting, arguendo, DOJ’s 
Case 4:20-cv-07810-JSW   Document 42   Filed 11/17/20   Page 5 of 8

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ADMINISTRATIVE MOTION FOR EXPEDITED CASE MANAGEMENT CONFERENCE 
CASE NO. 4:20-cv-7810-JSW 
 
gerrymandered relevant market for “online debit transactions,” DOJ’s overreach is shown by the 
implausibility of the assertion that Visa possesses monopoly power in the face of competition from 
Mastercard.  Visa is no more a monopolist than is Coca-Cola with competition from Pepsi.     
The DOJ’s strategy of delaying resolution of this matter on the merits is further evidenced 
by its refusal to even begin the process necessary to provide Defendants with its investigative file.  
DOJ consistently provides its investigative record to defendants early in merger litigations.  
Defendants need access to these materials to assess DOJ’s claims and prepare their defense, and 
they will remain at an unfair disadvantage until the materials are produced.  And the burden on 
DOJ to produce its investigative file is, at most, de minimis.  DOJ’s refusal to take the limited step 
of promptly providing notice to third parties has no purpose other than to delay these proceedings.  
Moreover, DOJ’s attempt to condition handover of the investigative file—to which Defendants are 
entitled, and a routine early step in merger challenges—upon Visa’s agreement to waive its 
privilege claims through the production of documents that Visa withheld during the investigation 
on the basis of attorney-client privilege and work product protections is improper. 
Critically, DOJ’s delay is causing harm to both Defendants and the marketplace.  
Defendants’ businesses are harmed by the uncertainty hanging over the transaction—which is 
threatening the loss of employees and customer contracts—and the inability to realize the merger’s 
synergies and efficiencies.  In addition, the marketplace is being deprived of the procompetitive 
benefits of this merger.  DOJ’s proposed schedule is untenable, delaying resolution of this matter 
until nearly two years after the parties announced the transaction in January 2020.2   
Accordingly, Defendants respectfully request that the Court convene a case management 
conference at the earliest possible date to address scheduling and other case management issues.   
  
 
                                                 
2  DOJ’s contention that a September 2021 trial is necessary due to COVID is misplaced.  While 
Defendants are cognizant of the unusual circumstances caused by the pandemic, DOJ’s speculation 
regarding when an in-person trial could occur does not justify delaying resolution of this matter. 
Case 4:20-cv-07810-JSW   Document 42   Filed 11/17/20   Page 6 of 8

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6 
ADMINISTRATIVE MOTION FOR EXPEDITED CASE MANAGEMENT CONFERENCE 
CASE NO. 4:20-cv-7810-JSW 
 
DATED:  November 17, 2020 
 
By:  /s/ Jack P. DiCanio 
Jack P. DiCanio 
Attorney for Defendant 
VISA INC. 
 
Jack P. DiCanio (SBN 138782) 
SKADDEN, ARPS, SLATE,  
     MEAGHER & FLOM LLP 
525 University Avenue, Suite 1400 
Palo Alto, California 94301 
Telephone: (650) 470-4500 
Facsimile: (650) 470-4570 
Email: Jack.DiCanio@skadden.com 
 
Steven C. Sunshine (pro hac vice pending) 
Tara Reinhart (pro hac vice pending) 
Julia York (pro hac vice pending) 
Joseph Ciani-Dausch (pro hac vice pending) 
SKADDEN, ARPS, SLATE,  
     MEAGHER & FLOM LLP 
1440 New York, N.W. 
Washington, D.C. 20005 
Telephone: (202) 371-7000 
Facsimile (202) 393-5760 
Email: steven.sunshine@skadden.com 
Email: tara.reinhart@skadden.com 
Email: julia.york@skadden.com 
Email: joseph.ciani-dausch@skadden.com 
 
Karen Lent (pro hac vice pending) 
SKADDEN, ARPS, SLATE,  
     MEAGHER & FLOM LLP 
One Manhattan West 
New York, New York 10001 
Telephone: (213) 735-3000 
Facsimile: (213) 735-2000 
Email: karen.lent@skadden.com 
 
 
By:  /s/ Jonathan M. Jacobsen 
JONATHAN M. JACOBSON 
Attorney for Defendant 
PLAID INC. 
 
Jonathan M. Jacobson, SBN 1350495 
WILSON SONSINI GOODRICH & ROSATI 
Professional Corporation 
1301 Avenue of the Americas, 40th Floor 
New York, New York 10019 
Telephone: (212) 497-7758 
Facsimile: (212) 999-5899 
Email: jjacobson@wsgr.com 
 
Justina K. Sessions, SBN 270914 
Benjamin S. Labow, SBN 229443 
WILSON SONSINI GOODRICH & ROSATI 
Professional Corporation 
One Market Plaza, Spear Tower, Suite 3300 
San Francisco, California 94105 
Telephone: (415) 947-2000 
Facsimile: (415) 947-2099 
Email: jsessions@wsgr.com 
Email: blabow@wsgr.com 
 
Scott A. Sher, SBN 190053 
Michelle Yost Hale (pro hac vice pending) 
Robin S. Crauthers (pro hac vice pending) 
Katie R. Glynn, SBN 300524 
WILSON SONSINI GOODRICH & ROSATI 
Professional Corporation 
1700 K Street NW, Fifth Floor 
Washington, DC 20006 
Telephone: (202) 973-8800 
Facsimile: (202) 973-8899 
Email: ssher@wsgr.com 
Email: mhale@wsgr.com 
Email: rcrauthers@wsgr.com 
Email: kglynn@wsgr.com 
 
 
 
 
 
 
 
Case 4:20-cv-07810-JSW   Document 42   Filed 11/17/20   Page 7 of 8

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7 
ADMINISTRATIVE MOTION FOR EXPEDITED CASE MANAGEMENT CONFERENCE 
CASE NO. 4:20-cv-7810-JSW 
 
ATTESTATION PURSUANT TO CIVIL LOCAL RULE 5-1(i)(3) 
I, Jack P. DiCanio, am the ECF user whose identification and password are being used to file 
Defendants’ Administrative Motion for an Expedited Case Management Conference.  In compliance 
with Local Rule 5-1(i)(3), I hereby attest that all signatories hereto concur in this filing. 
/s/ Jack P. DiCanio 
 
Case 4:20-cv-07810-JSW   Document 42   Filed 11/17/20   Page 8 of 8

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