LETTER addressed to Judge John G. Koeltl from Beth A.… — United States v. Visa Inc. (Dkt. 29)

Summary

A November 11, 2024 letter, Document 29, from Wilkinson Stekloff LLP to Judge John G. Koeltl in United States of America v. Visa Inc., Case No. 1:24-cv-07214 (JGK), in the U.S. District Court for the Southern District of New York. Visa responds to the Government's November 8, 2024, letter asking the Court to let discovery proceed while Visa's anticipated motion to dismiss is pending, and says it is premature to rule and the parties should brief the issue. Visa points out that the Government has been investigating its debit business since at least March 26, 2021, when it first issued a Civil Investigative Demand, and took almost four years to sue. It also argues that Section 4 of the Sherman Act does not preclude a stay and discusses United States v. Agri Stats, Inc. Anne P. Davis and Jonathan Ian Gleklen of Arnold & Porter Kaye Scholer LLP are listed as counsel for Visa.

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2001 M Street NW, 10th Floor 
Washington, DC 20036 
 
WWW.WILKINSONSTEKLOFF.COM 
___ 
 
A LIMITED LIABILITY PARTNERSHIP 
 
 
November 11, 2024 
VIA ECF FILING 
 
Honorable John G. Koeltl 
United States District Judge 
Southern District of New York 
500 Pearl Street  
New York, New York 10007 
 
 
Re: 
United States of America v. Visa Inc.; Case No. 1:24-cv-07214 (JGK)  
Dear Judge Koeltl: 
We write to respond to the Government’s November 8, 2024 letter asking the Court to 
allow discovery to proceed while Visa’s anticipated motion to dismiss is pending. Visa respectfully 
submits that it is premature to rule on the Government’s request, and the Court should instead 
direct the parties to brief the issue. Among other things, one of the primary factors that courts 
consider in determining whether discovery should be stayed pending a motion to dismiss is the 
perceived strength of that motion, see Gross v. Madison Square Garden Ent. Corp., No. 23-cv-
3380, 2023 WL 6815052, at *1 (S.D.N.Y. Oct. 17, 2023), which the Court does not yet have the 
benefit of being able to read. 
Though the Government expresses concern in its letter that it will be prejudiced by any 
additional delay, that concern is undercut by the background of this case. The Government has 
been investigating Visa in connection with its debit business since at least March 26, 2021, when 
it first issued a Civil Investigative Demand. Throughout the course of this investigation, Visa has 
produced voluminous amounts of documents and data, and it has made its employees available for 
deposition. The Government, in other words, has already had the opportunity to take significant 
discovery, including of third parties, and its decision to take almost four years to bring this lawsuit 
is inconsistent with its stated concerns regarding the risks of allowing the Court to resolve Visa’s 
motion to dismiss before permitting additional discovery. 
To the extent that the Government suggests that a stay of discovery is precluded in 
Government antitrust civil enforcement suits by Section 4 of the Sherman Act, that is incorrect.  
The Government has only cited one case where the Court denied a motion to stay in an antitrust 
case brought by the Government. See United States v. Agri Stats, Inc., No. 23-CV-3009, 2024 WL 
3061570 (D. Minn. May 17, 2024). None of the other cases cited in the Government’s letter 
involved a motion to stay discovery. And, even in the Agri Stats case, the Magistrate Judge did not 
hold that a stay was not permitted in a government civil enforcement action; the Magistrate Judge 
just determined that there was not “good cause” for a stay in that case, largely because the “pending 
dispositive motion [was] unlikely to resolve the entire case.” Id. at *5. Indeed, there are many cases 
Case 1:24-cv-07214-JGK     Document 29     Filed 11/11/24     Page 1 of 3

 
 
 
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where courts have stayed discovery in Government civil antitrust enforcement actions. See, e.g., 
Minute Order, FTC v. Meta Platforms, Inc., No. 1:20-cv-03590 (D.D.C. May 11, 2021); Order, 
United States v. DIRECTV Grp. Holdings LLC et al., No. 2:16-cv-08150 (C.D. Cal. Jan. 13, 2017); 
ECF No. 20; Order, United States v. eBay, Inc., No. 5:12-cv-05869 (N.D. Cal. June 4, 2013), ECF 
No. 37; United States v. Daily Gazette Co., No. 2:07-0329, 2007 WL 7575700, at *2–3 (S.D.W. 
Va. Oct. 18, 2007). 
The Government’s case, if it goes forward, will place a significant burden on the parties, 
numerous third parties implicated by the Complaint, and the Court.1 Visa’s anticipated motion to 
dismiss, if granted, would either completely resolve the Government’s case, or, in the alternative, 
significantly limit its scope. Before permitting discovery, Visa respectfully requests that the Court 
allow Visa to file its motion to dismiss, and for the parties to brief whether there is “good cause” 
for a stay pending resolution of that motion. See Gross, 2023 WL 6815052, at *1. 
 
Respectfully submitted, 
/s/ Beth A. Wilkinson 
 
 
Beth A. Wilkinson 
Brian Stekloff (admitted pro hac vice) 
Kieran Gostin 
WILKINSON STEKLOFF LLP 
2001 M Street NW, 10th Floor 
Washington, DC 20036 
Telephone: (202) 847-4000 
Facsimile: (202) 847-4005 
bstekloff@wilkinsonstekloff.com 
bwilkinson@wilkinsonstekloff.com 
kgostin@wilkinsonstekloff.com 
 
 
Anne P. Davis (admitted pro hac vice) 
Jonathan Ian Gleklen (admitted pro hac vice) 
ARNOLD & PORTER KAYE SCHOLER LLP 
601 Massachusetts Avenue NW 
Washington, D.C. 20001 
 
1 As the Court is aware, there have been several follow-on actions filed by civil plaintiffs and 
marked as related to this matter. Before discovery goes forward, it may be most efficient to allow 
the parties time to discuss whether some level of coordination among the cases is appropriate.  
Case 1:24-cv-07214-JGK     Document 29     Filed 11/11/24     Page 2 of 3

 
 
 
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Telephone: (202) 942-6197 
Facsimile: (202) 942-5999 
anne.davis@arnoldporter.com 
jonathan.gleklen@arnoldporter.com 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Counsel for Defendant Visa Inc. 
 
CC: 
All Counsel of Record (via ECF) 
 
 
Case 1:24-cv-07214-JGK     Document 29     Filed 11/11/24     Page 3 of 3

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