Declaration of Patricia Brink — United States v. Visa Inc. and Plaid Inc. (Dkt. 57.4)

Summary

In this declaration in United States of America v. Visa Inc. and Plaid Inc., Patricia Brink, Director of Professional Development and Counsel to the Assistant Attorney General at the Antitrust Division, states that on October 7, 2020 the Division designated the declarant as a "filter attorney" to review claims of inadvertent production of privileged documents in the investigation of the proposed merger. The declaration states that most, if not all, of Visa's disputed privilege claims relate to documents about the retention of Bain & Company by Visa's counsel. It states that on October 22, 2020 counsel for Visa was told that, in the filter attorney's judgment, the documents at issue were not privileged. The signature block names Patricia Brink, with execution on December 11, 2020, in Washington, D.C.

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JOHN R. READ (DC Bar #419373) 
john.read@usdoj.gov 
MEAGAN BELLSHAW (CA Bar #257875) 
meagan.bellshaw@usdoj.gov 
CORY BRADER LEUCHTEN (NY Bar # 5118732) 
cory.leuchten@usdoj.gov 
SARAH H. LICHT (DC Bar #1021541) 
sarah.licht@usdoj.gov 
United States Department of Justice, Antitrust Division 
450 Fifth Street, NW, Suite 4000 
Washington, DC 20530 
Telephone: (202) 598-2307 
Facsimile: (202) 514-7308 
 
Attorneys for Plaintiff United States of America 
 
 
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-07810-JSW 
 
DECLARATION OF PATRICIA 
BRINK 
 
Judge: Hon. Jeffrey S. White 
 
 
 
 
 
 
Case 4:20-cv-07810-JSW   Document 57-4   Filed 12/11/20   Page 1 of 4

 
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BRINK DECLARATION 
Case No. 4:20-cv-07810-JSW 
 
 
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I, Patricia Brink, hereby declare as follows: 
A. 
I am the Director of Professional Development and Counsel to the Assistant 
Attorney General at the Antitrust Division of the U.S. Department of Justice.  In my 30 years at 
the Antitrust Division, I have served in various positions, including as the Director of Civil 
Enforcement from 2010 to 2019. 
B. 
I have personal knowledge of the facts set forth in this declaration, and, if called 
to testify, could and would do so under oath. 
C. 
On October 7, 2020, I was designated to act as a “filter attorney” to review claims 
of inadvertent production of privileged documents in the Antitrust Division’s investigation of the 
proposed merger of Visa Inc. and Plaid Inc. (the “Transaction”).  Under the Hart-Scott-Rodino 
Act of 1976 (the “HSR Act”), the Antitrust Division may issue a Request for Additional 
Information and Documentary Materials to the parties of a merger notified to the agency under 
the HSR Act (“Second Request”).  That document request calls for internal party documents and 
data necessary for the Antitrust Division to investigate the likely competitive effects of a 
proposed merger.  The Division issued a Second Request to Visa on March 27, 2020 in 
connection with its investigation into the Transaction. Visa certified compliance with the Second 
Request on August 5, 2020. 
D. 
Upon a claim of inadvertent production, the Division’s practice is to return, 
sequester, or destroy the potentially privileged documents and may choose to appoint a filter 
attorney to review sequestered documents and engage with the submitting party on the privilege 
claims.  The filter attorney’s work is entirely separate from the investigation and investigative 
staff. 
E. 
Most, if not all, of Visa’s disputed privilege claims relate to documents 
concerning the retention by Visa’s counsel Arnold and Porter of Bain & Company (“Bain”).  As 
described in the September 10, 2020 letter from Visa’s counsel to Cory Brader Leuchten of the 
Antitrust Division’s investigative staff, the scope of Bain’s consultation was “in connection with 
ongoing litigation at which issues of business strategy would be relevant to Visa’s potential 
Case 4:20-cv-07810-JSW   Document 57-4   Filed 12/11/20   Page 2 of 4

 
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BRINK DECLARATION 
Case No. 4:20-cv-07810-JSW 
 
 
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defenses.” 
F. 
In a deposition of Visa’s CEO on October 2, 2020, investigative staff marked as 
an exhibit a document that discussed the project on which Bain was retained and changes to 
Visa’s business decisions that came out of that project.  The CEO testified to the business 
rationale for the project, explained that the reason Visa ran the Bain project through outside 
counsel was to keep such decisions confidential, and admitted that the project was not related to any 
litigation. 
G. 
On October 2, 2020, Visa sought to “claw back” that exhibit and other documents 
Visa had produced related to the project.  Visa submitted further “claw back” notices on October9 
and October 28 for additional documents related to the project. After I was designated the 
filter attorney on October 7, 2020, I reviewed the sequestered documents and researched 
applicable law in order to reach a determination as to whether the documents Visa sought to claw 
back, all of which relate to the project for which Bain was retained, were privileged. Visa had 
argued in their September 10 letter to Ms. Leuchten that Bain project documents were privileged 
because Bain was allegedly acting as an agent of counsel in order to facilitate the provision of 
legal advice.  Visa’s counsel cited United States v. Kovel, 296 F.2d 918 (2d Cir. 1961) and 
subsequent case law interpreting Kovel. 
H. 
On a telephone call on October 22, 2020, I informed counsel for Visa that it was 
my judgment that the documents at issue were not privileged.  In a follow-up letter on October 
27, 2020, I wrote that, based upon my review of the documents and the applicable case law, a 
court would be unlikely to find that Bain’s role was that of an agent to counsel such that 
documents relating to that project would be privileged, under Kovel or otherwise.  My review of 
the documents “clawed back” failed to find Bain’s consultation related to any legal advice 
provided to Visa.  Rather, the documents involved strategic business issues and did not appear to 
be communications made to facilitate legal advice. 
 
 
 
Case 4:20-cv-07810-JSW   Document 57-4   Filed 12/11/20   Page 3 of 4

 
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BRINK DECLARATION 
Case No. 4:20-cv-07810-JSW 
 
 
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I declare under penalty of perjury under the laws of the United States of America that the 
foregoing is true and correct. Executed on December 11, 2020, in Washington, D.C. 
 
 
 
 
___________________ 
PATRICIA BRINK 
CA Bar #144499 
Director of Professional Development 
and Counsel to the Assistant Attorney 
General at the Antitrust Division,  
U.S. Department of Justice 
 
Case 4:20-cv-07810-JSW   Document 57-4   Filed 12/11/20   Page 4 of 4

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