MEMORANDUM OF LAW in Opposition re: 37 MOTION to Dismiss for Failure to State a… — United States v. Visa Inc. (Dkt. 51)

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The United States opposes Visa Inc.'s motion to dismiss and asks the Court to deny it. The memorandum states that Visa has been the dominant provider of general purpose debit network services in the United States and that more than 60% of $4 trillion in U.S. debit transactions run on Visa's debit network. It argues that the Complaint alleges relevant product markets and that Visa's routing agreements are de facto exclusive arrangements. It also argues that Visa's agreements involving Apple, PayPal, and Square are part of a course of dealing to prevent potential rivals from competing. The signature block shows /s/ Aaron Teitelbaum and the date January 19, 2025.

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UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF NEW YORK 
 
UNITED STATES OF AMERICA, 
Plaintiff, 
v.  
VISA INC., 
Defendant. 
 
Case No. 1:24-cv-07214-JGK-SLC 
 
 
 
 
Oral Argument Requested 
 
THE UNITED STATES’ OPPOSITION TO VISA INC.’S MOTION TO DISMISS
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TABLE OF CONTENTS 
 
TABLE OF AUTHORITIES .......................................................................................................... ii 
I. 
INTRODUCTION ................................................................................................................... 1 
II. FACTUAL BACKGROUND.................................................................................................. 2 
A. 
Consumers, Merchants, and Banks Rely on Debit Network Services to Process Debit 
Transactions ................................................................................................................................ 2 
B. 
Visa Has a Monopoly in Debit Transaction Services ......................................................... 3 
C. 
Visa Protects its Debit Monopoly Through an Anticompetitive Course of Conduct ......... 4 
1. 
Visa’s Conduct Toward Merchants Compels Exclusivity, Which Forecloses 
Competition ............................................................................................................................. 5 
2. 
Visa Uses a Variety of Tactics with Issuers to Stifle Competition ................................. 6 
3. 
Visa “Partner[s] with Emerging Players Before They Become Disruptors” .................. 7 
III. 
LEGAL STANDARDS ...................................................................................................... 7 
IV. 
ARGUMENT ...................................................................................................................... 8 
A. 
The United States Has Alleged Relevant Product Markets ................................................ 8 
1. 
Visa’s Other Cases Are Inapposite ............................................................................... 12 
2. 
The Alleged Markets are Consistent ............................................................................. 12 
B. 
The Complaint Adequately Alleges That Visa Has Engaged in Anticompetitive  
Conduct ..................................................................................................................................... 13 
1. 
The United States Properly Pleaded that Visa’s Routing Agreements Violate  
Sections 1 and 2 of the Sherman Act ..................................................................................... 14 
2. 
Visa Stifles Innovation and Competition Through Unlawful Agreements Not to 
Compete ................................................................................................................................. 19 
V. CONCLUSION ..................................................................................................................... 24 
 
 
 
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TABLE OF AUTHORITIES 
Cases 
Am. President Lines, LLC v. Matson, Inc., 633 F. Supp. 3d 209 (D.D.C. 2022) .......................... 15 
Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993) ......................... 18 
Brown Shoe Co. v. United States, 370 U.S. 294 (1962) ............................................................. 8, 9 
Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2002) ..................................................... 22 
City of Groton v. Connecticut Light & Power Co., 662 F.2d 921 (2d Cir. 1981) ........................ 14 
Collins Inkjet Corp. v. Eastman Kodak Co., 781 F.3d 264 (6th Cir. 2015) .................................. 19 
Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690 (1962)........................... 14 
Dial Corp. v. News Corp., 165 F. Supp. 3d 25 (S.D.N.Y. 2016).................................................. 15 
Duke Energy Carolinas, LLC v. NTE Carolinas II, LLC, 111 F.4th 337 (4th Cir. 2024) ............ 20 
Eastman Kodak Co. v. Image Tech. Svcs., 504 U.S. 451 (1992) .................................................... 9 
FTC v. Actavis, Inc., 570 U.S. 136 (2013) .................................................................................... 19 
FTC v. Surescripts, LLC, 424 F. Supp. 3d 92 (D.D.C. 2020) ....................................................... 15 
FTC v. Syngenta Crop Protection AG, 711 F. Supp. 3d 545 (M.D.N.C. 2024) ......... 15, 16, 17, 19 
FTC v. Tapestry, Inc., 2024 WL 4647809 (S.D.N.Y. Nov. 1, 2024) ............................................ 11 
Geneva Pharms. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485 (2d Cir. 2004) ............................ 11 
Glob. Discount Travel Servs., LLC v. Trans World Airlines, Inc.,  
960 F. Supp. 701 (S.D.N.Y. 1997) ............................................................................................... 12 
Hicks v. PGA Tour, Inc., 897 F.3d 1109 (9th Cir. 2018) .............................................................. 12 
Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327 (11th Cir. 2010) ............................................ 12 
Mathias v. Daily News, L.P., 152 F. Supp. 2d 465 (S.D.N.Y. 2001) ........................................... 12 
Murrow Furniture Galleries, Inc. v. Thomasville Furniture Indus., Inc.,  
889 F.2d 524 (4th Cir. 1989) ........................................................................................................ 12 
N.Y. Mercantile Exch., Inc. v. Intercontinental Exch., Inc.,  
323 F. Supp. 2d 559 (S.D.N.Y. 2004) (Koeltl, J.) .......................................................................... 7 
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Nat’l Soc’y of Prof’l Engrs. v. United States, 435 U.S. 679 (1978) ............................................. 20 
NCAA v. Alston, 594 U.S. 69 (2021)............................................................................................... 8 
New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638 (2d Cir. 2015) .............................. 8 
Novell, Inc. v. Microsoft Corp., 731 F.3d 1064 (10th Cir. 2013) ................................................. 20 
Oakley v. Dolan, 980 F.3d 283 (2d Cir. 2020) ..................................................................... 7, 8, 17 
Pac. Bell. Tel. Co. v. linkLine Commc’ns, Inc., 555 U.S. 438 (2009) .......................................... 20 
Palmer v. BRG of Ga., Inc., 498 U.S. 46 (1990) .......................................................................... 19 
Payment Card Interchange Fee and Merchant Discount Antitrust Litig.,  
729 F. Supp. 3d 298 (E.D.N.Y. 2024) .......................................................................................... 19 
PharmacyChecker.com, LLC v. Natl Ass’n of Bds. of Pharm.,  
530 F. Supp. 3d 301 (S.D.N.Y. 2021)........................................................................................... 21 
Pulse Network, LLC v. Visa Inc., 30 F.4th 480 (5th Cir. 2022) .............................................. 18, 19 
Regeneron Pharms., Inc. v. Novartis Pharma AG, 96 F.4th 327 (2d Cir. 2024) ................ 9, 11, 12 
Remicade Antitrust Litig., 345 F. Supp. 3d 566 (E.D. Pa. 2018) ............................................ 15, 17 
State Oil Co. v. Khan, 522 U.S. 3 (1997)........................................................................................ 7 
Streamcast Networks, Inc. v. Skype Techs., S.A., 547 F. Supp. 2d 1086 (C.D. Cal. 2007) .......... 12 
Surescripts Antitrust Litig, 608 F. Supp. 3d 629 (N.D. Ill. 2022) .......................................... 15, 18 
Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320 (1961)...................................................... 14 
Todd v. Exxon Corp., 275 F.3d 191 (2d Cir. 2001) (Sotomayor, J.) .............................................. 9 
United States v. Google LLC, 2024 WL 3647498 (D.D.C. 2024) .................................... 19, 20, 22 
United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001) .................................................... 8 
Valassis Commc’ns, Inc. v. News Corp., 2019 WL 802093 (S.D.N.Y. 2019).............................. 18 
Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., 549 U.S. 312 (2007) .................... 18 
ZF Meritor LLC v. Eaton Corp., 696 F.3d 254 (3d Cir. 2012) ......................................... 14, 15, 16 
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Statutes 
15 U.S.C. § 1 ................................................................................................................................... 7 
15 U.S.C. § 2 ................................................................................................................................... 8 
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I. 
INTRODUCTION 
Visa has been the dominant provider of general purpose debit network services in the 
United States for decades.  Today more than 60% of $4 trillion in U.S. debit transactions run on 
Visa’s debit network.  Compl. at 4.  Visa’s power in U.S. debit markets allows it to use a web of 
restrictive agreements with customers and other industry participants to extract large profits and 
insulate itself from competition.  Id. ¶¶ 166–167.  This conduct harms consumers and merchants, 
who miss out on innovation and increased choice and price competition.  Id. ¶ 139.   
 Rather than accepting the Complaint’s allegations as true, Visa’s motion to dismiss 
addresses strawmen that bear little resemblance to the facts alleged.  Visa disputes the 
Complaint’s market definition allegations, isolates one example of anticompetitive conduct while 
ignoring all others, and applies the wrong legal standards to the Complaint’s allegations.  The 
United States has sufficiently alleged that Visa is a monopolist that has engaged in an unlawful 
course of conduct to reduce competition, stifle innovation, and harm consumers and merchants.  
The Court should reject Visa’s arguments to the contrary.   
First, Visa argues that the general purpose debit network services markets alleged in the 
Complaint are implausible because they exclude ACH, RTP, and FedNow (which Visa labels as 
“Interbank Payment Networks”) that sometimes function similarly to debit networks.  Br. at 1–2, 
12–17.  Yet, the Complaint distinguishes ACH, RTP, and FedNow as having “slower processing 
times” and “lack[ing] fraud detection, chargeback services, and dispute resolution” that 
customers demand from debit services.  Id. at 13 (quoting Compl. ¶ 159).  Even if the products 
have some functional similarity, the test is whether they are reasonably interchangeable under 
economic principles.  They are not, as shown by, inter alia, Visa’s alleged ability to charge high 
fees without losing business to ACH, RTP, and FedNow.  
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Second, Visa focuses on its routing agreements with merchants, ignoring other 
allegations about Visa’s monopoly maintenance.  Moreover, Visa’s assertions regarding the 
exclusionary nature of the routing agreements are wrong: the Complaint alleges facts showing 
they are de facto exclusive arrangements that shut out rivals by punishing merchants for using 
rival networks.  Visa’s routing agreements are anticompetitive, not because Visa offers low 
prices to win merchants’ business, but rather because Visa demands exclusivity or near-
exclusivity for merchants to avoid punitive rack rates and fees.  
Third, Visa attempts to rewrite the Complaint with respect to a narrow category of 
contracts involving Apple, PayPal, and Square to force application of a doctrine—unilateral 
refusal to deal with rivals—that does not apply.  The Complaint alleges a course of 
anticompetitive conduct far broader than the agreements Visa discusses.  And even the small 
subset of contracts Visa relies on supports the United States’ claims.  These agreements are part 
of a voluntary course of dealing to prevent potential rivals from competing, not a refusal by Visa 
to help its existing rivals.   
For these reasons and those set forth below, the United States respectfully requests that 
the Court deny the motion to dismiss. 
II. 
FACTUAL BACKGROUND 
A. Consumers, Merchants, and Banks Rely on Debit Network Services to Process 
Debit Transactions 
In a general purpose debit network services (“debit”) transaction, funds are drawn 
directly from a consumer’s bank account to pay a merchant for goods or services.  Compl. ¶ 24.  
These transactions require a payment network (or “rail”) that uses a customer’s payment 
credential to communicate between the customer, the customer’s bank, the merchant, and the 
merchant’s bank.  Id. ¶¶ 29, 31, 153.  Companies like Visa provide those network services and, 
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in so doing, not only facilitate the transfer of funds between accounts but also provide related 
services that customers demand of a debit transaction.  These services include guaranteeing 
payment to merchants when the transaction is made, allowing consumers to dispute a transaction, 
and offering fraud protections.  Id.   
Merchants, consumers, and banks consider debit a distinct form of payment that is not 
interchangeable with credit cards, cash, and other methods.  Id. ¶¶ 155–160.  Many consumers 
cannot access credit or consider debit more convenient than cash or credit.  Id. ¶¶ 157, 160.  
ACH does not process transactions immediately or offer the minimum services that debit 
network services provide, such as fraud protections and dispute resolution, that merchants and 
customers require.  Id. ¶ 159.  Other bank-transfer networks like RTP are only “available to 
banks.”  Id. ¶ 61.  Because of these differences, bank-transfer networks, credit cards, cash, and 
other payment products are not a reasonable alternative to debit network services.   
B. Visa Has a Monopoly in Debit Transaction Services 
Visa handles over 60% of all U.S. debit transactions and 65% of card-not-present debit 
transactions (e.g., online transactions), which make up half of all debit sales.  Id. ¶¶ 6, 37.  Visa 
has used this dominant position to charge supracompetitive prices for decades.  Id. ¶ 66.  Visa 
sets its prices without regard to its incremental costs, and it has raised prices without losing 
market share.  Id. ¶¶ 174–175.  Because so many consumers use Visa-branded debit cards, it is a 
commercial necessity for merchants to accept Visa.  Id. ¶ 59. 
Recognizing the need for greater debit competition, Congress passed the Durbin 
Amendment, which requires that each debit card support at least two unaffiliated debit 
networks—one on the front of the card and at least one on the back of the card.  Id. ¶ 8.  This was 
intended to give merchants and their banks at least two choices for routing a particular 
transaction.  Id.   
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C. Visa Protects its Debit Monopoly Through an Anticompetitive Course of 
Conduct  
For at least two reasons, Visa’s monopoly power gives it the ability to exclude or 
suppress alternative debit networks.  First, success in debit network services markets depends on 
“network effects,” a feedback loop in which small networks face the “herculean task” of 
simultaneously gaining widespread acceptance by merchants and widespread enablement by 
issuers (i.e., the banks that issue debit cards to consumers).  Id. ¶ 55.  
Second, despite the Durbin Amendment’s mandate for routing alternatives, Visa still 
faces no competition for a substantial number of transactions.  Id. ¶¶ 58, 79.  These debit 
transactions that Visa processes outright without facing any competition are “non-contestable” 
transactions (i.e., meaning they cannot be routed to “back-of-card” networks).  Id. ¶ 10.  Other 
debit networks can compete for a transaction only if both the merchant’s bank (the “acquirer”) 
and the consumer’s bank (the “issuer”) have enabled the network.  Transactions are “non-
contestable” for various reasons, including issuer-imposed restrictions encouraged by Visa; the 
option to enter a PIN for card-present transactions is not available; or the transaction exceeds the 
PIN network transactions dollar limits.  Id. ¶¶ 57–58. 
As the Complaint alleges, network effects, combined with Visa’s large base of non-
contestable transactions, allow Visa to engage in a broad course of anticompetitive conduct to 
prevent existing and potential competitors from challenging Visa.  This conduct falls into three 
general categories: conduct with merchants (and their banks), conduct with issuing banks, and 
conduct with fintech companies.   
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1. Visa’s Conduct Toward Merchants Compels Exclusivity, Which 
Forecloses Competition  
Visa uses a variety of agreements that penalize merchants and increase their fees if they 
shift even a small volume of transactions to an alternative network.  These agreements, along 
with other tactics, compel exclusivity from merchants. 
Routing agreements.  Contestable transactions, unlike non-contestable, are ones that 
merchants should be able to route to rival networks.  Visa’s routing agreements, however, 
require merchants and their acquirers to use Visa, not the back-of-card networks, for a high 
percentage (often 100%) of all transactions.  Id.  ¶¶ 75, 79.  Visa has this power because, in the 
absence of a routing agreement, Visa threatens to impose high fees—its “rack rates”—on 
merchants and acquirers, including for non-contestable transactions.  Id. ¶¶ 75, 77–79.  Even 
when merchants and acquirers accede to Visa’s routing agreements, Visa threatens them with 
rack rates and other fees as a penalty if they fail to route all or almost all their transactions to 
Visa.  Id.  This has the effect of forcing merchants into exclusive dealing relationships with Visa 
for the vast majority of their volume of Visa-branded debit card transactions.  Id. ¶ 81.  
Because of the threat of Visa’s punitive rack rates on contestable and non-contestable 
transactions alike, it is not economical for merchants or acquirers to route transactions away 
from Visa, even when the back-of-card networks offer a lower per-transaction price than Visa for 
contestable transactions.  Id. ¶¶ 77–79.  Under Visa’s routing agreements, many merchants also 
face significant additional fees for not meeting volume requirements, such as termination fees 
and the claw back of “discounts” below rack rates.  Id.  These high rack rates and other penalties 
are so steep that merchants who want to use a rival network typically could not offset the cost of 
doing so even if a back-of-card network offers a lower per-transaction price for contestable 
transactions.  See id. ¶¶ 80–81 (explaining mathematically how back-of-card networks are often 
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unable to compete with Visa).  This creates a Hobson’s choice for merchants—deal exclusively 
with Visa or face penalties.  Due to the “incentives” Visa imposes, its routing agreements are de 
facto exclusive for Visa-branded debit card transactions.  Id.  Roughly 45% of all debit 
transactions in the U.S. and 75% of transactions with Visa-branded cards are foreclosed from 
competition altogether because of Visa’s routing agreements.  Id. ¶ 141. 
New Fees.  Visa has a history of introducing new fees it can “waive” in exchange for 
exclusivity or near exclusivity.  Id. ¶ 87.  These fees, including the Fixed Acquirer Network Fee 
and Digital Commerce Service Fee, are additional pressure points Visa can use to compel 
agreements more favorable to Visa with merchants and their banks and make it even more 
difficult for merchants to route transactions to competing debit networks.  Id.  ¶¶ 87, 175.  
Other Conduct.  Visa also uses other tactics to protect its debit monopoly.  For example, 
Visa sometimes prices credit products based on how much debit volume merchants route to Visa, 
and Visa has used its credit business to discourage functionality called “PINless” enablement 
that would make rival debit networks more attractive.  Id. ¶ 85.   
2. Visa Uses a Variety of Tactics with Issuers to Stifle Competition  
Unaddressed by Visa’s motion is the allegation that, even though debit cards can support 
multiple back-of-card networks, Visa induces issuers to limit the enablement of rival networks.  
Visa has done this with explicit contractual language, id. ¶ 88, volume incentives, id. ¶ ¶ 89-93, 
and by offering discounts on other products, such as debit processing services, to lock up more 
volume, id. ¶ 94.  This conduct suppresses smaller networks’ ability to compete by starving them 
of transactions and the scale they need to become more robust competitors to Visa.  Id. ¶¶ 20, 
142. 
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3. Visa “Partner[s] with Emerging Players Before They Become Disruptors” 
Innovation from technology giants, including Apple, PayPal, and Square, could give 
consumers new ways to pay for goods and services using their bank accounts.  Id. ¶¶ 108–109.  
Because Visa fears that these potential competitors could displace Visa as an intermediary 
between both sides of a debit transaction, Visa uses its monopoly power to stifle them.  Id. ¶¶ 
111–118.  With some potential competitors, Visa uses a carrot-or-stick strategy like the one it 
uses with merchants, acquirers, and issuers.  It “seek[s] to partner with” them “to mitigate 
threats,” rather than compete on the merits through lower prices or better products, by dangling 
big payoffs in exchange for commitments not to compete with or disintermediate Visa.  Id. 
¶¶ 111, 119.  And it threatens them with high fees if they dare to compete with Visa.  Id. ¶¶ 16, 
119, 125.  Visa has employed this strategy for years with at least PayPal, Apple, and Square. 
III. 
LEGAL STANDARDS 
To overcome a Rule 12(b)(6) motion, a complaint must allege “enough facts to state a 
claim for relief that is plausible on its face,” and the Court is to “accept all factual allegations as 
true and draw all reasonable inferences in the plaintiff’s favor.”  Oakley v. Dolan, 980 F.3d 279, 
283 (2d Cir. 2020) (cleaned up).  The Court’s function is “not to weigh the evidence that might 
be presented at trial but merely to determine whether the complaint itself is legally sufficient.”  
N.Y. Mercantile Exch., Inc. v. Intercontinental Exch., Inc., 323 F. Supp. 2d 559, 561 (S.D.N.Y. 
2004) (citation omitted) (Koeltl, J.). 
Section 1 of the Sherman Act, 15 U.S.C. § 1, prohibits contracts and agreements that 
unreasonably restrain trade.  State Oil Co. v. Khan, 522 U.S. 3, 10 (1997).  Agreements are either 
condemned as unreasonable per se, id., or otherwise assessed under a “rule of reason” analysis, 
which “generally requires a court to conduct a fact-specific assessment of market power and 
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market structure to assess a challenged restraint’s actual effect on competition.”  NCAA v. Alston, 
594 U.S. 69, 81 (2021) (cleaned up).   
Section 2 of the Sherman Act, 15 U.S.C. § 2, prohibits monopolization, which requires: 
(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or 
maintenance of that power, sometimes termed anticompetitive conduct.  New York ex rel. 
Schneiderman v. Actavis PLC, 787 F.3d 638, 651 (2d Cir. 2015); accord United States v. 
Microsoft Corp., 253 F.3d 34, 50 (D.C. Cir. 2001). 
IV. 
ARGUMENT 
Visa’s motion fails because the Complaint alleges straightforward violations of Sherman 
Act Sections 1 and 2.  The Complaint adequately pleads (1) Visa’s market and monopoly power 
in two relevant product markets in the United States: general purpose debit network services and 
a narrower, card-not-present submarket (together, the “debit network services” markets), Compl. 
¶¶ 151–175, and (2) how Visa’s exclusionary agreements and other anticompetitive conduct have 
harmed competition and maintained its monopoly in the debit network services markets by 
stifling competitive threats and squashing innovative alternatives, id. ¶¶ 63-137.  Visa attacks the 
Complaint on both fronts: the alleged relevant product markets and the anticompetitive nature of 
two (but not all) types of alleged conduct.  The Court should reject these challenges because they 
ignore, distort, and disagree with numerous allegations in the Complaint, rather than “accept 
[them] as true.”  Oakley, 980 F.3d at 283. 
A. The United States Has Alleged Relevant Product Markets 
A “relevant product market” refers to the products that customers would likely turn to as 
substitutes if one of the firms making those products increased price or decreased quality.  See, 
e.g., Brown Shoe Co. v. United States, 370 U.S. 294, 325 (1962).  To determine the outer 
boundaries of a product market, courts analyze whether consumers treat the products as 
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reasonably interchangeable substitutes (i.e., “economic substitutes”), not whether the products 
“appear to be functionally similar.”  Regeneron Pharms., Inc. v. Novartis Pharma AG, 96 F.4th 
327, 339–41 (2d Cir. 2024); see also Eastman Kodak Co. v. Image Tech. Svcs., 504 U.S. 451, 
482 (1992) (market definition “can be determined only after a factual inquiry into the 
‘commercial realities’ faced by consumers”).  For example, in Regeneron, the court upheld a 
relevant market for a medication delivered in “prefilled syringes,” to the exclusion of the same 
medication treating the same condition delivered in vials, based on allegations “that physicians 
have a ‘strong preference’ for” syringes and other facts showing a lack of significant substitution 
between syringes and vials.  96 F.4th at 339–41.  
Courts also look to “practical indicia” to identify whether two products are economic 
substitutes.  Brown Shoe, 370 U.S. at 325.  These indicia can include “industry or public 
recognition of the [market] as a separate economic entity, the product’s peculiar characteristics 
and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price 
changes, and specialized vendors.”  Id.  Because “market definition is a deeply fact-intensive 
inquiry,” courts “hesitate to grant motions to dismiss for failure to plead a relevant product 
market.”  Regeneron, 96 F.4th at 339 (citation omitted); accord Todd v. Exxon Corp., 275 F.3d 
191, 199–200 (2d Cir. 2001) (Sotomayor, J.). 
The product markets alleged in the Complaint easily meet this “relatively permissive 
pleading standard.”  Regeneron, 96 F.4th at 339.  The Complaint describes three factors that 
establish why the alleged product markets plausibly satisfy the requirements of a Sherman Act 
claim: (1) minimum attributes that distinguish general purpose debit network services from other 
payment methods; (2) why a non-debit payment network’s mere ability to directly transfer funds 
is insufficient to make it a reasonable substitute for debit network services; and (3) Visa’s 
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persistently high debit shares and ability to price debit network services without regard to cost or 
losing sales to non-debit payment methods.  Visa’s arguments either do not account for or 
misconstrue these allegations. 
First, each of the debit networks in the relevant product markets includes the “minimum 
attributes of debit” that “distinguish debit from other methods of payment.”  Compl. ¶ 153.  
Debit network services require, at a minimum, (1) a communication “rail” that facilitates real-
time transactions paid directly from a consumer’s bank account, (2) the ability for the consumer 
or her bank to dispute and chargeback the transaction; (3) payment guarantees for merchants; and 
(4) fraud protections for all parties.  Compl. ¶¶ 29, 152–153.   
Second, Visa argues that ACH, FedNow, and RTP must be included in the relevant 
markets as a matter of law because they have one of the four minimum attributes of debit—
facilitating direct consumer-to-merchant transactions funded from the consumer’s bank account.  
Br. at 12.  In addition to raising a factual question about functionality, this argument ignores the 
Complaint’s allegations that each of these products lacks one or more key attributes of debit 
network services and is thus not reasonably interchangeable with debit.  For example, ACH 
transfers are not done in real time, and FedNow and RTP lack “fraud detection, dispute 
resolution, and chargeback services.”  Compl. ¶ 159.  Also, RTP is only “available to banks,” id. 
¶ 61, making it an unrealistic option for consumers.  For these reasons, ACH, RTP, and FedNow 
have a more limited use case than debit networks: “disbursements, paychecks, interbank 
settlements, and recurring fixed payments like mortgage and tuition payments.”  See id. ¶ 159. 
In addition, the Complaint alleges facts showing that these differing attributes mean that 
consumers, issuers, merchants, and acquirers will not substitute debit network services with 
ACH, FedNow, or RTP in the face of a debit price increase; they do not view the other payment 
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services as suitable substitutes for debit, see, e.g., Compl. ¶¶ 155, 157–160.  As a result, a 
hypothetical debit monopolist “would be able to maintain prices above the level that would 
prevail in a competitive market.”  Id. at ¶ 150.  
Third, the Complaint is replete with examples of Visa’s exercise of its monopoly power, 
see generally id. at ¶¶ 138–146, 164–175, that further support the plausibility of the United 
States’ markets.  The Complaint alleges that Visa’s exclusionary conduct allows it to maintain 
high margins—83% operating margins in North America—and durable market shares—60% or 
higher.  Id.¶¶ 164, 166.  The Complaint also provides examples of Visa imposing new, 
unfavorable debit pricing structures without losing debit volume.  Id. ¶ 175.  Visa’s ability to 
increase its prices without losing volume to ACH, RTP, and FedNow is evidence that they are 
not viable economic substitutes and that debit network services is a distinct product market.  See, 
e.g., Geneva Pharms. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 496 (2d Cir. 2004) (“[T]he 
ability of consumers to switch to a substitute restrains a firm’s ability to raise prices above the 
competitive level.”). 
ACH, FedNow, and RTP are not in the relevant markets because they are neither 
reasonable alternatives in a functional sense nor economic alternatives.  The Complaint 
adequately explains why Visa’s arguments to the contrary fail on both counts.  Compl. ¶¶ 115–
116, 159.  The Complaint’s allegations establish that ACH, FedNow, and RTP are not just 
different than debit (or a lower-quality or lower-priced facsimile of debit), but are not reasonably 
interchangeable in the marketplace with debit network services, even if they may share some 
functional similarity.  See Regeneron, 96 F.4th at 341; FTC v. Tapestry, Inc., 2024 WL 4647809, 
at *11 (S.D.N.Y. Nov. 1, 2024) (whether “‘differences are actually a spectrum of price and 
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quality differences’ within an otherwise indivisible market” is “a question of fact, not a question 
of law”) (collecting cases). 
1. Visa’s Other Cases Are Inapposite 
The cases Visa cites do not help it.  As discussed, Regeneron supports the United States, 
not Visa.  And the Complaint alleges why certain product qualities are necessary to provide a 
service, unlike the complaints in the cases Visa cites.  For example, in Jacobs v. Tempur-Pedic 
Int’l, Inc., the plaintiff included a single “conclusional statement” to support its alleged market, 
unlike the Complaint’s detailed allegations.  626 F.3d 1327, 1338 (11th Cir. 2010).  In Hicks v. 
PGA Tour, Inc., plaintiffs failed to plausibly allege that advertisements directed at golf fans 
played during golf tournaments were not reasonably interchangeable with other types of 
advertisements directed at golf fans, 897 F.3d 1109, 1116, 1121 (9th Cir. 2018), which contrasts 
with the Complaint’s allegations that ACH, FedNow, and RTP have fundamentally different 
capabilities.  The plaintiffs in Murrow Furniture Galleries, Inc. v. Thomasville Furniture Indus., 
Inc. relied on “economically meaningless” differences, 889 F.2d 524, 528 (4th Cir. 1989), unlike 
the critical differences alleged in the Complaint.  The remaining cases attempted to a define a 
relevant market in terms of a single brand name product, which the United States does not do 
here.  See Streamcast Networks, Inc. v. Skype Techs., S.A., 547 F. Supp. 2d 1086, 1094–95 (C.D. 
Cal. 2007); Mathias v. Daily News, L.P., 152 F. Supp. 2d 465, 482 (S.D.N.Y. 2001); Glob. 
Discount Travel Servs., LLC v. Trans World Airlines, Inc., 960 F. Supp. 701, 705 (S.D.N.Y. 
1997).   
2. The Alleged Markets are Consistent  
Visa incorrectly argues that the alleged markets must be rejected due to claimed 
inconsistencies.  Br. at 15–17.  Visa’s first, fourth, fifth, and sixth so-called inconsistencies are a 
repackaging of its contention that the United States improperly excluded ACH, FedNow, and 
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RTP from its market definitions, and thus, fail for the reasons discussed above.  Further, the 
market is defined by a set of minimum services.  A product that provides those services is in the 
market; one that does not provide them is not in the market.  Additionally, there is no 
inconsistency in excluding ACH, FedNow, and RTP, but including other fintech debit products 
that use ACH, FedNow, or RTP as their rails.  See Br. at 16.  The Complaint explains that these 
fintech products are reasonable substitutes for debit network services because they, unlike ACH, 
FedNow, and RTP, have minimum attributes discussed above, like “fraud detection, dispute 
resolution, and chargeback services.”  Compl. ¶ 159.  
Visa’s second and third claimed inconsistencies, see Br. at 15–16, also fail because the 
United States is not required to detail each minimum attribute for every product in its markets to 
allege that ACH, RTP, and FedNow do not offer these services.  Visa’s assertion that debit 
networks must provide these services “uniformly” to compete in the same antitrust market is 
unsupported by any authority.  Id.  Ultimately, a product must have the minimum attributes as 
defined in the Complaint to be in the relevant product markets.   
B. The Complaint Adequately Alleges That Visa Has Engaged in Anticompetitive 
Conduct  
Visa attacks two kinds of exclusionary conduct out of many alleged in the Complaint: 
Visa’s routing agreements with merchants and their banks and Visa’s agreements that dissuade 
potential competitors from competing.  Visa’s narrow arguments ignore the Complaint’s 
allegations about its exclusionary agreements with issuers, as well as several components of its 
anticompetitive conduct toward merchants and their banks, including leveraging incentives on 
credit card transactions to obtain debit routing and imposition of new fee structures.  Likewise, 
Visa addresses only some of its agreements with potential competitors, ignoring other 
agreements and Visa anticompetitive relationships with tech giants like Amazon described in the 
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Complaint.  Compl. ¶ 112, 135.  Visa’s narrow focus obscures “the mix of the various 
ingredients of [Visa’s] behavior,” which form a broader course of anticompetitive conduct.  City 
of Groton v. Connecticut Light & Power Co., 662 F.2d 921, 928–929 (2d Cir. 1981) (cleaned 
up); see also Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 699 (1962) 
(Sherman Act plaintiffs “should be given the full benefit of their proof without tightly 
compartmentalizing the various factual components and wiping the slate clean after scrutiny of 
each.”) (cleaned up).  Visa’s failure to address wide swaths of the alleged conduct or dispute that 
conduct’s plausible illegality should alone doom its motion.  Moreover, the conduct Visa does 
address actually supports plausible Sherman Act claims, as discussed below. 
1. The United States Properly Pleaded that Visa’s Routing Agreements 
Violate Sections 1 and 2 of the Sherman Act 
Visa’s agreements requiring merchants and acquirers to route all or nearly all eligible 
debit transactions over the Visa network, violate Sections 1 and 2 because their de facto 
exclusivity forecloses competition from other networks.  That exclusivity harms competition by 
depriving rival debit networks of scale that would make them stronger rivals and shielding Visa’s 
debit business from having to respond to competitive pressures like lower prices and higher 
quality. 
Courts have established clear principles for analyzing exclusive dealing arrangements 
under the antitrust laws.  See Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320, 327–29 
(1961).  And these principles apply equally to express and de facto exclusivity agreements.  See 
ZF Meritor LLC v. Eaton Corp., 696 F.3d 254, 270 (3d Cir. 2012).   
Visa ignores the Complaint’s well-pleaded exclusive-dealing claim by wrongly re-casting 
the allegations as a predatory pricing scheme, contending that the United States must show Visa 
sets per-unit prices below cost.  Br. at 18.  Not so.  Where, as here, a plaintiff alleges competition 
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is harmed because of a “loyalty scheme,” it is the exclusivity of the scheme, rather than the 
monopolist’s “prices standing alone,” that is illegal.  In re Surescripts Antitrust Litig, 608 F. 
Supp. 3d 629, 642–643 (N.D. Ill. 2022); see also ZF Meritor, 696 F. 3d at 281 (exclusivity may 
harm competition on its own “irrespective of below-cost pricing”); In re Remicade Antitrust 
Litig., 345 F. Supp. 3d 566, 579 (E.D. Pa. 2018) (plaintiffs properly pleaded that the “exclusivity 
of the arrangements” harms competition, “not price competition”).  Through its agreements that 
threaten customers with punitive rack rates and penalties if they shift transactions away from 
Visa—thereby creating de facto exclusive agreements—Visa has foreclosed competition even 
from rivals that offer lower per-transaction pricing.  See Compl. ¶¶ 80–81 (explaining 
mathematically how back-of-card networks are often unable to compete with Visa).   
Courts treat loyalty rebate arrangements like Visa’s as exclusive dealing and apply the 
rule-of-reason principles described above unless price itself is the “clearly predominant 
mechanism of exclusion.”  ZF Meritor, 696 F.3d at 277, 281; Dial Corp. v. News Corp., 165 F. 
Supp. 3d 25, 32–33 (S.D.N.Y. 2016).  Only then would a court consider applying the price-cost 
or discount-attribution tests that Visa embraces.  See, e.g., ZF Meritor, 696 F.3d at 277–281; 
FTC v. Syngenta Crop Protection AG, 711 F. Supp. 3d 545, 574–77 (M.D.N.C. 2024); Am. 
President Lines, LLC v. Matson, Inc., 633 F. Supp. 3d 209, 229 (D.D.C. 2022); In re Surescripts, 
608 F. Supp. 3d at 642–43; FTC v. Surescripts, LLC, 424 F. Supp. 3d 92, 101 (D.D.C. 2020) 
(rejecting argument that “loyalty programs are unlawful only when they constitute ‘predatory’ 
pricing”); In re Remicade, 345 F. Supp. 3d at 579; Dial, 165 F. Supp. 3d at 32–33.   
Determining whether price is the clearly predominant mechanism of exclusion must be 
made “on a case-by-case basis, focusing on the particular facts disclosed by the record.”  
Syngenta, 711 F. Supp. 3d at 578 (cleaned up).  Moreover, that “loyalty discounts cover a single 
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product . . . does not necessarily mean that price clearly predominates.”  Id. at 577.  In assessing 
whether price or exclusivity predominates (typically after full development of the record), courts 
consider a range of factors, many of which have been extensively alleged in the Complaint, 
including:  
(1) Visa’s agreements exploit its dominant share of a market protected by high entry 
barriers.  Compl. ¶¶ 5–6, 55, 100; see Syngenta, 711 F. Supp. 2d at 576–77 (one of 
the “non-price mechanisms of exclusion” was the leveraging of the “Defendants’ 
monopolist status” and high barriers to entry). 
(2) Visa’s contracts use a “cliff pricing” structure, which penalizes non-exclusivity 
because even a slight deviation from the share target can deprive the customer of all 
the discounts it has earned and revert to Visa’s high rack rate pricing.  Compl. ¶¶ 75–
79; see ZF Meritor, 696 F.3d at 265 (analyzing rebates conditioned on meeting 
market share target under the rule of reason).   
(3) Many of Visa’s contracts contain early termination or clawback terms, which allow 
Visa to terminate the contract and force the customer to repay the incentives it 
received previously.  Compl. ¶ 77; see Syngenta, 711 F. Supp. 3d at 576 (recognizing 
“threats to retract unpaid rebates or claw back discounts” are “non-price mechanisms 
of exclusion” analyzed under the rule of reason). 
(4) The high proportion of non-contestable transactions on Visa debit cards give it the 
leverage to capture all the contested volume by threatening punitive rack rates on 
non-contestable transactions and providing incentive payments on both.  Compl. ¶¶ 
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58, 79; see Remicade, 345 F. Supp. 3d at 578–79 (rule of reason applied to discount 
scheme that linked contestable and incontestable prescriptions).1  
(5) The wide coverage of Visa’s arrangements (foreclosing about half the volume in the 
debit market) raises the costs of other networks to compete because, to win business, 
they must not only offer lower prices but also compensate the merchant for the 
penalties Visa imposes for non-exclusivity.  Compl. ¶¶ 83, 102–103; see Syngenta, 
711 F. Supp. 3d at 574–75 (rule of reason applies when agreements “exclude 
competition by imposing unilateral costs on competitors”). 
(6) Visa’s incentive agreements can last for a very long time. 
 
 see Syngenta, 711 F. Supp. 3d at 576 (listing “the 
length of time of the discounting agreements” as a “non-price mechanism of 
exclusion” in the rule of reason determination). 
 
Visa asks the Court to assume at the outset of the case that price is the predominant 
method of exclusion, despite the Complaint’s well-pleaded allegations and the fact-bound nature 
of that analysis.  Br. at 18.  That is improper.  See Oakley, 980 F.3d at 283.  Relying on this 
unfounded assumption, Visa asks the Court to apply tests that measure whether a monopolist’s 
pricing is so low that it drives competitors out of the market.  See Br. at 18–20.  Those tests do 
 
1 Visa mischaracterizes the Complaint by calling the allegations about contestable and non-
contestable transactions a bundling claim.  Br. at 19.  The Complaint nowhere alleges that.  
Rather, the Complaint makes clear that non-contestable transactions are a key source of Visa’s 
leverage to capture routing of contestable transactions.  Compl. ¶¶ 10–12, 79, 102.   
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not apply here because, unlike the cases applying those tests, this case alleges that Visa’s prices 
are too high because its conduct has hampered competition, not that it is maintaining a monopoly 
by pricing too low.  See Pulse Network, LLC v. Visa Inc., 30 F.4th 480, 492, 494–95 (5th Cir. 
2022) (distinguishing predatory pricing cases on grounds that “Pulse isn’t complaining about low 
prices but about high prices—i.e., the supra-competitive overall prices Visa can charge 
merchants by exploiting its dominance”); In re Surescripts, 608 F. Supp. 3d at 642. 
Visa similarly asserts that its cost-based tests apply because its “[d]iscounts attached 
merely to the quantity of goods purchased, and not to exclusivity itself.”  Br. at 20.  But the 
factors outlined above show that the loyalty scheme alleged is, in fact, designed to reward (and 
compel) exclusivity itself. 
After making this erroneous assumption, Visa relies on cases where a monopolist’s 
pricing is so low that it drives competitors out of the market—cases involving very different 
legal theories and factual settings, such as predatory pricing (Brooke Grp. Ltd. v. Brown & 
Williamson Tobacco Corp., 509 U.S. 209 (1993); (Valassis Commc’ns, Inc. v. News Corp., 2019 
WL 802093 (S.D.N.Y. 2019)),2 predatory bidding (Weyerhaeuser Co. v. Ross-Simmons 
Hardwood Lumber Co., 549 U.S. 312 (2007)) and tying (Collins Inkjet Corp. v. Eastman Kodak 
 
2 The portion of Valassis cited by Visa considered a “standalone claim of Predatory Pricing.”  
The court went on to hold that though the plaintiff did not present evidence of below-cost 
pricing, a jury nevertheless could find harm to competition from defendant’s contracts that 
“prevented [competitors] from obtaining a critical mass of [customers].”  2019 WL 802093, at 
*5, 12.  That triable issue is similar to the allegations pleaded here. 
 
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Co., 781 F.3d 264 (6th Cir. 2015))—not the loyalty rebates alleged.  Br. at 18–20.  Although the 
Complaint alleges that Visa uses exclusivity, rather than low prices, to exclude competition, 
Visa’s motion at best raises a factual dispute about whether exclusivity or price predominates.  In 
exclusive dealing cases, courts resolve such disputes before discovery “in only rare 
circumstances.”  Syngenta, 711 F. Supp. 3d at 579.  The dispute should be resolved at trial, as 
courts have held in two prior challenges to Visa’s routing agreements.  See Pulse, 30 F. 4th at 
494–95 (holding “what to make of Visa’s agreements with merchants and issuers is a fact 
question for a jury, not a summary judgment issue for a court”); In re Payment Card Interchange 
Fee and Merchant Discount Antitrust Litig., 729 F. Supp. 3d 298, 311–12, 331–33 (E.D.N.Y. 
2024)) (denying summary judgment on Section 2 challenge to Visa’s post-Durbin Amendment 
routing agreements with merchants and acquirers).  
2. Visa Stifles Innovation and Competition Through Unlawful Agreements 
Not to Compete 
The Complaint plausibly alleges that Visa neutralizes emerging threats to its dominance 
by offering these potential competitors a “quid pro quo”: incentives in exchange for not 
competing with Visa.  Compl. ¶¶ 111–112.  And to give that proposition teeth, Visa threatens 
burdensome fees if would-be rivals develop competing payment networks.  Compl. ¶¶ 113–137.  
Agreements between an incumbent and its potential competitor, in which the potential 
competitor receives benefits from the incumbent in exchange for not competing, harm 
competition and violate Section 1 of the Sherman Act.  See Palmer v. BRG of Ga., Inc., 498 U.S. 
46, 49–50 (1990) ; see also FTC v. Actavis, Inc., 570 U.S. 136, 158 (2013).  A monopolist 
paying off its potential or actual competitors to prevent expansion into the market likewise 
violates Section 2 of the Sherman Act.  United States v. Google LLC, 2024 WL 3647498, at 
*116–117 (D.D.C. 2024). 
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The United States does not allege that Visa harms competition by refusing to deal with 
anyone, notwithstanding Visa’s assertions to the contrary, Br. at 22–23.  The refusal-to-deal 
doctrine, which is a narrow “court-made subcategor[y] of [anticompetitive] conduct,” distinct 
from ordinary rule-of-reason analysis, Duke Energy Carolinas, LLC v. NTE Carolinas II, LLC, 
111 F.4th 337, 354 (4th Cir. 2024), is intended to apply only to situations where a monopolist 
“fail[s] to come to [a rival’s aid],” not where a monopolist “fail[s] to leave its rivals alone,”  
Novell, Inc. v. Microsoft Corp., 731 F.3d 1064, 1072–73 (10th Cir. 2013); see also Pac. Bell. Tel. 
Co. v. linkLine Commc’ns, Inc., 555 U.S. 438, 450 (2009) (characterizing claims at issue as a 
monopolist rendering “insufficient assistance” to a competitor).  Unlike in linkLine and other 
refusal to deal cases, the Complaint does not allege that Visa rendered insufficient assistance to 
its competitors, but instead that Visa paid them to refrain from becoming competitors in the first 
place.  Compl. ¶ 111–112.  Visa’s alleged conduct thus changed the trajectories of its potential 
rivals and harmed competition.  Id. ¶¶ 119–137; see also Google,  2024 WL 3647498, at 
*116–117 (revenue-sharing arrangement with Google “unquestionably” discouraged Apple 
“from launching its own search engine”). 
a. Visa Has a Broad, Longstanding History of Suppressing Potential Rivals  
Visa ignores the Complaint’s allegations regarding its long contractual history with 
Apple, PayPal, Square, and other large technology companies, instead focusing only on some of 
the current agreements with a few of these companies and disregarding the allegations of Visa’s 
intent in entering these contracts.  In analyzing whether an agreement harms competition, a court 
must consider “the facts peculiar to the business, the history of the restraint, and the reasons why 
it was imposed.”  Nat’l Soc’y of Prof’l Engrs. v. United States, 435 U.S. 679, 692 (1978).  Visa 
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21 
ignores those broader allegations and instead narrowly focuses only on the current agreements 
with some of these companies.   
Through the negotiation and performance of earlier agreements with Apple, PayPal, and 
Square (and others), Visa made clear that its potential rivals would face penalties if they 
threatened Visa’s debit monopoly.  E.g., Compl. ¶¶ 119–137.  This conduct was all part of Visa’s 
strategy to maintain its monopoly and assuage Visa’s fears that “fintech debit networks would 
displace Visa as an intermediary.”  Id. ¶ 113.  Visa’s internal documents, detailed in the 
Complaint, show that Visa developed contractual incentive structures with potential rivals to 
reward them for not competing against Visa and to penalize them if they took steps toward 
developing competing debit networks.  Id. ¶¶ 119–137.  These allegations of “anticompetitive 
animus,” which Visa’s motion ignores, are integral to the Court’s evaluation of the “probability 
of anticompetitive effects.”  See PharmacyChecker.com, LLC v. Natl Ass’n of Bds. of Pharm., 
530 F. Supp. 3d 301, 346 (S.D.N.Y. 2021).   
The Complaint’s allegations about Visa’s relationships with PayPal and Square, in 
particular, demonstrate that Visa can—and does—use a variety of tools to discourage companies 
from promoting technologies that Visa considers threatening.  For example, when PayPal 
launched a staged digital wallet that allowed customers to load funds without using traditional 
debit credentials, Visa retaliated by imposing new restrictions on PayPal and threatening higher 
fees if PayPal did not meet new, more stringent volume targets.  Id. ¶¶ 119–132.  Although Visa 
modified restrictions on PayPal in its most recent contract (entered during the investigation that 
led to this Complaint), Visa’s motion nevertheless ignores the allegations about its earlier 
dealings with PayPal and how those dealings continue to impact competition and the parties’ 
understanding of current agreements.  Id.  Visa likewise ignores the allegations that in 2014, Visa 
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22 
threatened to terminate its incentive agreement with Square unless Square withdrew a newly 
launched product that Visa feared was a “disintermediation threat.”  Id. ¶¶ 127–131. 
b. The Agreements Visa Attaches to Its Motion Support Sherman Act Claims 
Because They Reward Potential Rivals for Not Competing 
Agreements violate the Sherman Act when they “appear[] capable of significantly 
contributing to keeping [a potential competitor] on the sidelines [], thus allowing [the 
monopolist] to maintain its monopoly.”  Google, 2024 WL 3647498, at *117.  As the Complaint 
alleges, based on the text of agreements with Apple, PayPal, and Square, those agreements and 
others do just that, thereby harming competition.  Compl. ¶¶ 113–137.  Visa tries to avoid that 
plausible inference by cherry-picking some of these agreement’s terms, which is improper 
because it “risks depriving the parties of a fair adjudication of the claims by examining an 
incomplete record.”  See Chambers v. Time Warner, Inc., 282 F.3d 147, 154–55 (2d Cir. 2002).  
But even the few contractual clauses Visa quotes and attaches to its motion confirm the United 
States met its burden to plead facts.  Visa entered agreements with potential competitors that 
induced those competitors to not compete either by penalizing when they do or rewarding them 
when they don’t. 
For example, Visa admits that if Apple 
 
the Visa Global 
Strategic Merchant Incentive Agreement (“Merchant Incentive Agreement”).  Br. at 23 (quoting 
Exh. 3 
).  As an initial matter, and a reason why factual matters should not be 
taken up on a motion to dismiss, Visa failed to attach a critical addendum (Program Addendum 2: 
U.S. Territory) containing additional information on financial incentives.  Nevertheless, 
 
 
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23 
 
Id.  But terminating the Merchant 
Incentive Agreement would cost Apple hundreds of millions of dollars.  Compl. ¶ 136.   
Visa’s motion also references its Payment Platform Agreement with Apple (which Visa 
calls the “Technology Agreement”), attaching an incomplete copy of that agreement to its 
motion.3  This agreement 
 
  Visa 
acknowledges its right to “walk away” from this Agreement—and deprive Apple of fees from 
issuers—if Apple decides to “develop[] a competing network.”  Br. at 22.  This provides a carrot 
to Apple not to compete with Visa, which accompanies the stick of Visa threatening to cancel the 
Merchant Incentive Agreement if Apple hazards to compete with Visa. 
Visa’s current agreements with PayPal and Square also show monopolistic intent and 
anticompetitive effects.  Among other provisions, 
 
 
 
  Visa likewise threatens to impose fees on and withhold incentives from Square if 
Square steers customers toward payment options that bypass the need for Visa or traditional 
debit networks.  Compl. ¶ 132.  Visa recognizes its threats to impose such fees influence the 
behavior of its potential competitors and deter them from competing.  Compl. ¶ 125. 
 
 
 
3 Visa’s brief discusses a different version of Amendment 9 from the version attached as Br. 
Exhibit 2. 
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V. 
CONCLUSION 
For the reasons stated above, Visa’s Motion to Dismiss should be denied.  
 
DATED: January 19, 2025 
 
  
Respectfully submitted, 
By:      /s/ Aaron Teitelbaum 
Aaron M. Teitelbaum 
Bennett J. Matelson 
Michele Trichler 
Robert Vance 
United States Department of Justice 
Antitrust Division 
450 Fifth Street, N.W., Suite 4000 
Telephone: (202) 894-4266 
Facsimile: (202) 514-7308 
Aaron.Teitelbaum@usdoj.gov 
Bennett.Matelson@usdoj.gov 
Michele.Trichler@usdoj.gov 
Robert.Vance@usdoj.gov 
Counsel for Plaintiff, the United States 
  
  
 
 
 
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CERTIFICATION OF COMPLIANCE 
I hereby certify under Section II.D of Judge Koeltl’s individual practices that this 
memorandum contains 6,963 words, exclusive of the cover page, table of contents, table of 
authorities, and this certification. I further certify that this memorandum complies with the 
formatting rules provided in Section II.D of Judge Koeltl’s individual practices. 
By: 
 /s/ Aaron Teitelbaum 
Aaron M. Teitelbaum 
Case 1:24-cv-07214-JGK     Document 51     Filed 01/19/25     Page 30 of 30

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