Court filing
Declaration of Cory Brader Leuchten — United States v. Visa Inc. and Plaid Inc. (Dkt. 57.5)
Record facts
| Court | U.S. District Court for the Northern District of California |
|---|---|
| Filed | 2020-12-11 |
U.S. District Court for the Northern District of California · No. 4:20-cv-07810-JSW · Doc. 57-5 · 2020-12-11 · Docket on CourtListener
Full text
BRADER LEUCHTEN DECL.
Case No. 4:20-cv-07810-JSW
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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 CORY
BRADER LEUCHTEN
Judge: Hon. Jeffrey S. White
Case 4:20-cv-07810-JSW Document 57-5 Filed 12/11/20 Page 1 of 3
BRADER LEUCHTEN DECL.
Case No. 4:20-cv-07810-JSW
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I, Cory Brader Leuchten, hereby declare as follows:
A.
I am an attorney employed by the Antitrust Division of the U.S. Department of
Justice, counsel to Plaintiff United States. I make this declaration of personal, firsthand
knowledge and could and would testify competently hereto.
B.
Visa Inc. (“Visa”) and Plaid Inc. (“Plaid”) notified the United States about their
proposed merger and filed paperwork under the Hart-Scott-Rodino Act (“HSR”) on January 24,
2020, triggering a thirty-day waiting period during which the United States would review their
transaction to identify potential antitrust concerns. On February 24, Visa pulled its initial HSR
filing and, on February 26, 2020, Visa refiled it, extending the waiting period for an additional
thirty days.
C.
On March 27, 2020, the United States issued Visa and Plaid a Request for
Additional Information and Documents (the “Second Request”) pursuant to its authority under
Section 7(A)(e) of the Clayton Act. Among other things, the Second Request required Visa to
produce certain non-privileged materials—including documents and data—designed to inform
the United States’ enforcement recommendation on whether the proposed acquisition would
violate the antitrust laws.
D.
On May 15, 2020, after several weeks of active negotiations through which all
parties made concessions, Visa, Plaid, and the United States entered into an omnibus agreement
governing the scope of materials that Visa and Plaid would provide pursuant to Second Request
and the timing by which Visa and Plaid would provide them (the “Timing Agreement”).1
E.
The Timing Agreement contemplated Visa concluding its obligations under the
Second Request on June 30, 2020—approximately three months (96 days) after issuance of the
Second Request—so long as Visa met specified deadlines for the production of non-privileged
documents and data. Visa failed to meet those deadlines, thus extending the investigation.
F.
The United States granted accommodations limiting the scope of Visa’s collection
and production obligations in light of the ongoing COVID-19 pandemic, including limiting
document collection to particular custodians and time periods, limiting the production of
1
Exhibit A to Bellshaw Decl. Dkt. 043-1.
Case 4:20-cv-07810-JSW Document 57-5 Filed 12/11/20 Page 2 of 3
BRADER LEUCHTEN DECL.
Case No. 4:20-cv-07810-JSW
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responsive text messages to select custodians, permitting Visa to not produce responsive hard
copy files, and other targeted modifications intended to reduce Visa’s burden.
G.
On or around July 1, 2020, Visa informed the Division of its intent to delay its
certification of compliance with the Second Request until July 17, 2020. Upon review of Visa’s
production history, however, the United States determined that Visa had missed 13 interim
deadlines agreed to in the Timing Agreement, thereby further delaying Visa’s certification date.
H.
Visa ultimately completed its obligations and complied with the Second Request
on August 5, 2020, nearly 36 days after Visa’s initial goal of June 30, 2020.
I.
The Timing Agreement also established mutual obligations relating to the
scheduling of executive depositions. Section III(A) of the Timing Agreement required the
United States to identify deponents 14 days after Visa certified compliance with the Second
Request. The United States identified its list of deponents on August 11, 2020, nine days before
the deadline, and agreed that Visa’s executives could appear by video conference from their
remote locations due to the ongoing COVID-19 pandemic. Visa did not propose dates for those
depositions until August 20, 2020. Visa did not make the final executive available for a
deposition until October 20, 2020, 71 days after the United States identified its initial list of
executives.
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct to the best of my knowledge.
Executed on the 11th day of December, 2020 in Washington, DC.
Cory Brader Leuchten
Trial Attorney
Department of Justice
Antitrust Division
Case 4:20-cv-07810-JSW Document 57-5 Filed 12/11/20 Page 3 of 3File and source
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