Declaration of Steven C. Sunshine — United States v. Visa Inc. and Plaid Inc. (Document 42-1)
Summary
The declaration of Steven C. Sunshine, counsel for Visa Inc., filed November 17, 2020 as Document 42-1 in United States v. Visa Inc. and Plaid Inc., No. 4:20-cv-07810-JSW, in the U.S. District Court for the Northern District of California, supports the defendants' administrative motion for an expedited case management conference. It attaches as Exhibits A to E the November 2020 letters and emails between defense counsel and John Read of the Justice Department's Antitrust Division. The defendants propose a trial start date of February 23, 2021 and press the Division to produce its investigative file now. Read's November 13, 2020 letter proposes September 7, 2021, says the Division's investigative file holds approximately 100G of documents from thirteen third-party CID recipients, and offers it once Visa produces withheld Project Altamira documents.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
- Date
- 2020-11-17
Cite this document
“Declaration of Steven C. Sunshine — United States v. Visa Inc. and Plaid Inc. (Document 42-1).”
Original at archive.org, dated 2020-11-17. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2020-11-17-plaintiff-v-visa-inc-and-plaid-inc-b12ee362-1/
, SHA-256 b12ee36245418143931d29cc3fb13e8f9db307795977e2d5b6da5c95f7ee8f8e.Full text
Case 4:20-cv-07810-JSW Document 42-1 Filed 11/17/20 Page 1 of 24
1 Jack P. DiCanio (SBN 138782) Jonathan M. Jacobson, SBN 1350495
SKADDEN, ARPS, SLATE, WILSON SONSINI GOODRICH &
2 MEAGHER & FLOM LLP ROSATI
525 University Avenue, Suite 1400 Professional Corporation
3 Palo Alto, California 94301 1301 Avenue of the Americas, 40th Floor
Telephone: (650) 470-4500 New York, New York 10019
4 Facsimile: (650) 470-4570 Telephone: (212) 497-7758
Email: Jack.DiCanio@skadden.com Facsimile: (212) 999-5899
5 Email: jjacobson@wsgr.com
Steven C. Sunshine (pro hac vice pending)
6 SKADDEN, ARPS, SLATE, Justina K. Sessions, SBN 270914
MEAGHER & FLOM LLP WILSON SONSINI GOODRICH &
7 1440 New York, N.W. ROSATI
Washington, D.C. 20005 Professional Corporation
8 Telephone: (202) 371-7000 One Market Plaza, Spear Tower, Suite 3300
Facsimile (202) 393-5760 San Francisco, California 94105
9 Email: steven.sunshine@skadden.com Telephone: (415) 947-2000
Facsimile: (415) 947-2099
10 Attorneys for Defendant Email: jsessions@wsgr.com
VISA INC.
11 Scott A. Sher, SBN 190053
WILSON SONSINI GOODRICH &
12 ROSATI
13 Professional Corporation
1700 K Street NW, Fifth Floor
14 Washington, DC 20006
Telephone: (202) 973-8800
15 Facsimile: (202) 973-8899
Email: ssher@wsgr.com
16
17 Attorneys for Defendant
PLAID INC.
18
UNITED STATES DISTRICT COURT
19 NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
20
21 UNITED STATES OF AMERICA CASE NO.: 4:20-cv-7810-JSW
22 Plaintiff, DECLARATION OF STEVEN C.
SUNSHINE IN SUPPORT OF
23 v. DEFENDANTS’ ADMINISTRATIVE
MOTION FOR AN EXPEDITED CASE
24 VISA INC. and PLAID INC., MANAGEMENT CONFERENCE
25 Defendants.
26
27
28
SUNSHINE DECL. ISO DEFENDANTS’ ADMINISTRATIVE MOTION CASE NO. 4:20-cv-7810-JSW
Case 4:20-cv-07810-JSW Document 42-1 Filed 11/17/20 Page 2 of 24
1 I, Steven C. Sunshine, hereby declare and state as follows:
2 1. I am counsel at the law firm of Skadden, Arps, Slate, Meagher & Flom LLP, attorneys
3 for Defendant Visa Inc. (“Visa”). I am an attorney licensed to practice law in Washington, DC, and
4 before this Court. Unless otherwise stated, I have personal knowledge of the facts stated below and,
5 if called upon as a witness, I could and would competently testify to the following facts.
6 2. Pursuant to Civil Local Rule 7-11, I submit this declaration in support of Defendants’
7 Administrative Motion for an Expedited Case Management Conference.
8 3. On November 15, 2020, counsel for Defendants contacted counsel for Plaintiff asking
9 Plaintiff to join a motion for an expedited case management conference. Counsel for Plaintiff stated
10 that it believed a case management conference is premature.
11 4. Attached as Exhibit A is a true and correct copy of a November 6, 2020 letter from
12 Tara Reinhart, on behalf of Defendants, to John Read.
13 5. Attached as Exhibit B is a true and correct copy of a November 11, 2020 letter from
14 Steven Sunshine, on behalf of Defendants, to John Read.
15 6. Attached as Exhibit C is a true and correct copy of a November 13, 2020 letter from
16 John Read to Steven Sunshine.
17 7. Attached as Exhibit D is a true and correct copy of a November 15, 2020 letter from
18 Tara Reinhart, on behalf of Defendants, to John Read.
19 8. Attached as Exhibit E is a true and correct copy of an email exchange from November
20 11-16, 2020, between counsel for Plaintiff and Defendants.
21
22 I declare under penalty of perjury under the laws of the United States of America that the
23 foregoing is true and correct.
24 Executed this 17th day of November, 2020 at Washington, DC.
25 By: /s/ Steven C. Sunshine
Steven C. Sunshine (pro hac vice pending)
26 1440 New York, N.W.
Washington, D.C. 20005
27 Telephone: (202) 371-7000
Facsimile (202) 393-5760
28 steven.sunshine@skadden.com
1
SUNSHINE DECLARATION ISO DEFENDANTS’ ADMINISTRATIVE MOTION CASE NO. 4:20-CV-7810-JSW
Case 4:20-cv-07810-JSW Document 42-1 Filed 11/17/20 Page 3 of 24
EXHIBIT A
Case 4:20-cv-07810-JSW Document 42-1 Filed 11/17/20 Page 4 of 24
S KADDEN , A RPS , S LATE , M EAGHER & F LOM LLP
1440 NEW YORK AVENUE , N.W.
FIRM/AFFILIATE OFFICES
WASHINGTON, D.C. 20 005- 2111 -----------
________ BOSTON
CHICAGO
TEL: (202) 371-7000 HOUSTON
FAX: (202) 393-5760 LOS ANGELES
NEW YORK
www.skadden.com PALO ALTO
DIRECT DIAL WILMINGTON
-----------
202-371-7630 BEIJING
DIRECT FAX
BRUSSELS
202-661-9030 FRANKFURT
EMAIL ADDRESS HONG KONG
TARA.REINHART@SKADDEN.COM LONDON
MOSCOW
MUNICH
PARIS
SÃO PAULO
November 6, 2020 SEOUL
SHANGHAI
SINGAPORE
TOKYO
TORONTO
John R. Read, Esq.
United States Department of Justice
Antitrust Division
450 Fifth Street NW, Suite 4000
Washington, DC 20530
RE: United States v. Visa et al., No. 3:20-cv-07810 (N.D.
Cal.).
Dear John:
On behalf of Visa, Inc. and Plaid Inc. (together, “Defendants”), enclosed
please find the draft protective order proposed by the Defendants in the above-
captioned matter.
We believe it prudent to proactively address the issues of a protective order
and the DOJ’s prompt disclosure of third-party materials. As you know, merger
challenges are tried on expedited litigation schedules, and any delay in DOJ’s
production of third-party investigation materials may materially impact the ability of
Defendants to prepare their defense. DOJ staff investigated for more than nine
months, and have more than 1.5 million documents the Defendants produced in the
investigation. Staff presumably have significant volumes of third-party information
in the investigative file. The Defendants need access to the third-party materials to
assess DOJ’s claims and prepare their defense, and they will remain at an unfair
disadvantage until the materials are produced. Upon the parties’ execution of the
protective order, we respectfully request that, as a promptly as possible, DOJ provide
outside counsel for the Defendants with complete copies of its investigative records
relating to the proposed acquisition of Plaid by Visa.
Case 4:20-cv-07810-JSW Document 42-1 Filed 11/17/20 Page 5 of 24
John R. Read, Esq.
November 6, 2020
Page 2
The enclosed protective order is similar to those that DOJ lawyers have
agreed to in past merger litigations, including the United States v. Energy Solutions
Inc., et al., and United States v. Sabre et al. To move this process along, until the
court enters a protective order on the docket, Visa and Plaid would agree to treat all
third-party documents as confidential, and would limit access to outside counsel.
As you know, nothing in the statutes, the rules, or practicalities of the
litigation process prevents you from immediately giving notice to and seeking
permission from third parties to make their information available to us on an outside-
counsel-only basis. To the extent third parties consent or do not object, you may
provide their materials to us without a protective order having been entered by a
court. We ask that you start with this process now.
Please provide any comments on the draft protective order. Our goal is to
present a stipulated order to the court at the earliest opportunity. We look forward to
your response.
Sincerely,
/s/ Tara Reinhart
Tara Reinhart
cc: Steven Sunshine, Esq.
Karen Hoffman Lent, Esq.
Jonathan Jacobson, Esq.
Scott Sher, Esq.
Case 4:20-cv-07810-JSW Document 42-1 Filed 11/17/20 Page 6 of 24
EXHIBIT B
Case 4:20-cv-07810-JSW Document 42-1 Filed 11/17/20 Page 7 of 24
S KADDEN , A RPS , S LATE , M EAGHER & F LOM LLP
1440 NEW YORK AVENUE, N.W.
FIRM/AFFILIATE OFFICES
WASHINGTON, D.C. 20005- 2111
BOSTON
CHICAGO
TEL: (202) 371-7000 HOUSTON
FAX: (202) 393-5760 LOS ANGELES
NEW YORK
www.skadden.com PALO ALTO
WILMINGTON
202-371-7860
BEIJING
BRUSSELS
202-661-0560 FRANKFURT
HONG KONG
Steven.Sunshine@SKADDEN.COM LONDON
MOSCOW
MUNICH
PARIS
SÃO PAULO
November 11, 2020 SEOUL
SHANGHAI
SINGAPORE
TOKYO
TORONTO
John R. Read, Esq.
United States Department of Justice
Antitrust Division
450 Fifth Street NW, Suite 4000
Washington, DC 20530
RE: United States v. Visa et al., No. 3:20-cv-07810 (N.D.
Cal.).
Dear John:
On behalf of Visa, Inc. and Plaid Inc. (together, “Defendants”), I write to
follow up on our meet and confer yesterday afternoon regarding the protective order,
case management order, and your inclusion of Visa's non-public information in the
DOJ's publicly filed complaint.
Case Schedule
During our meet and confer, Defendants proposed a trial start date of
February 23, 2021. The time to trial is consistent with other recent DOJ merger
trials. We explained that an expedited resolution is important to both Defendants,
whose businesses are harmed by the uncertainty hanging over the transaction and the
inability to realize the merger’s efficiencies, and important to the marketplace more
generally, which is deprived of the procompetitive benefits of this merger. We also
believe this is a reasonable timeframe given the lengthy investigation and extensive
discovery that the government already has taken from both the Defendants and third
parties.
Case 4:20-cv-07810-JSW Document 42-1 Filed 11/17/20 Page 8 of 24
John R. Read, Esq.
November 11, 2020
Page 2
You stated that DOJ would seek a trial start date at the end of July and that
DOJ needs more time to litigate this merger challenge because it has brought claims
under Section 2 of the Sherman Act as well as Section 7 of the Clayton Act.
To continue to progress the process of arriving at a case schedule, Defendants
drafted the attached Exhibit A, which sets our proposed trial date as February 23,
2021. The discovery milestones in this proposed schedule are consistent with prior
merger trials litigated by DOJ, including most recently United States v. Sabre.
Please complete this schedule with DOJ's proposed dates as soon as possible, and
Defendants will do the same.
Investigative File
During our meet and confer, Defendants repeatedly emphasized the need for
DOJ to provide its merger investigative file at the earliest opportunity. Those
materials are critical to determining the timing of trial and the scope of discovery.
DOJ has had over nine months to investigate this transaction, putting it at a
considerable information advantage compared to the Defendants, which impairs the
companies' ability to prepare their defense. We reiterated our request that DOJ
immediately notify third parties that their materials would be disclosed, and then
provide Defendants with the investigative file on an outside-counsel-only basis
pending entry of a protective order. This has been done in merger challenges and
provides ample protections for third parties. You declined to do so, because you view
that as inefficient and only will notify third parties once a protective order is entered.
We are at an impasse regarding when and under what conditions the DOJ will
produce its investigative file to Defendants. We will seek relief from the Court once
a judge has been assigned to this matter.
You also declined to answer our inquiries regarding the size of the
investigative file or the number of third parties involved in DOJ’s investigation,
stating that you do not know the size of the file and do not believe you can disclose
the number of third parties. Defendants explained that this information is critical to
understanding the scope of discovery that will be required in this case.
You also said DOJ only would consider "pre-discovery" production of the
DOJ's investigative file if Defendants agreed to pre-discovery production of
materials related to Project Altamira that were withheld by Visa as privileged during
the investigation. This proposed quid pro quo is improper. Your conditioning a
production that DOJ is required to make on Visa providing documents that you know
are subject to a claim of privilege is improper.
Case 4:20-cv-07810-JSW Document 42-1 Filed 11/17/20 Page 9 of 24
John R. Read, Esq.
November 11, 2020
Page 3
Protective Order
We also discussed the draft protective order that the Defendants provided on
November 6, 2021, which is based on protective orders used in prior merger
litigations brought by DOJ, including the Sabre and United States v. Energy
Solutions matters. You stated that DOJ will not agree to the provisions providing in-
house counsel access to certain materials, because third parties would not be willing
to provide their produced materials to the parties if in-house counsel were given
access. You also suggested that we consider working from the Northern District of
California’s model protective order, which I have attached as Exhibit B to this letter.
As you can see, our draft provides more protection for third parties than the model
order—as we noted on the call, the draft subjects access by in-house counsel to order
of the Court and resolution of objections by third parties. During our discussion, you
indicated that DOJ would provide a redline of the draft protective order by
November 12, 2021. We look forward to seeing your proposed edits and will of
course consider them.
Confidentiality
On November 6, 2020, I sent you a letter asking the basis for your inclusion
of non-public information in the complaint filed publicly on ECF. You responded on
November 9, relying on both 15 U.S.C. § 18a(h) and two 9th Circuit opinions
discussing the standard for sealing documents. On our call, you declined to answer
whether it is DOJ's position that § 18a(h) allows DOJ to make a public disclosure of
information that qualifies for sealing. You also declined to answer whether DOJ
staff had analyzed or made a judgment whether the Visa information would qualify
for sealing in litigation. We stressed that DOJ does not have discretion unilaterally
to determine whether information produced during its HSR investigation would
qualify for protection from public disclosure in litigation. And we reiterated that
DOJ should not publicly disclose Defendants' investigative materials prior to an
opportunity for the producing party to object based on confidentiality.
Case 4:20-cv-07810-JSW Document 42-1 Filed 11/17/20 Page 10 of 24
John R. Read, Esq.
November 11, 2020
Page 4
***
Our goal following yesterday’s meet and confer is to present a protective
order and case management order, preferably stipulated, to the court at the earliest
opportunity. We look forward to your response.
Sincerely,
/s/ Steven Sunshine
Steven Sunshine
cc: Tara Reinhart, Esq.
Karen Hoffman Lent, Esq.
Jonathan Jacobson, Esq.
Scott Sher, Esq.
Justina Sessions, Esq.
Case 4:20-cv-07810-JSW Document 42-1 Filed 11/17/20 Page 11 of 24
EXHIBIT C
Case 4:20-cv-07810-JSW Document 42-1 Filed 11/17/20 Page 12 of 24
Liberty Square Building
450 5th Street, N.W.
Washington, DC 20530
November 13, 2020
Steve Sunshine
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, NW
Washington, D.C. 20005
Steve.Sunshine@skadden.com
Re: United States v. Visa et al., No. 3:20-cv-07810 (N.D. Cal.)
Dear Steve:
I write in response to your letter dated November 11, 2020, and our telephonic meet and confer on
November 10, 2020. We share your stated goal of expeditiously presenting the Court with a
stipulated Protective Order and proposed Case Management Order, but believe these documents
must be appropriately tailored to the circumstances of this case.
Case Schedule
Enclosed with this letter is a draft case management statement proposing a trial start date of
September 7, 2021. We created this draft with Judge Freeman’s (who was assigned yesterday)
Standing Order Re: Civil Cases and her Standing Order Re: Civil Bench Trials in mind. In getting
this to you so quickly after her assignment, we may not have conformed the draft perfectly to her
standing orders. We are open to your suggestions to better do so.
As I explained on our call, the Division requires – and has proposed – a reasonable period of
discovery to fully prosecute both its Section 2 and Section 7 claims. The Division’s proposal also
accounts for the ongoing COVID pandemic, which has made it more burdensome for third parties
in particular to timely produce responsive information. Visa itself struggled to timely produce
data and documents during the Division’s investigation. A September start date also increases the
likelihood that any trial will be held in person, rather than conducted virtually.
You proposed a trial start date of February 23, 2021, a mere 110 days after the complaint was filed
in this action. This date is neither reasonable nor consistent with schedules in recent merger trials.
1
Case 4:20-cv-07810-JSW Document 42-1 Filed 11/17/20 Page 13 of 24
For example, the schedule in the Division’s most recent merger trial, United States v. Sabre, 452
F. Supp. 3d 97 (D. Del. 2020), vacated, 2020 WL 4915824 (3d Cir. July 20, 2020), was almost
two months longer (160 days) than Defendants’ proposal. Similarly, the last merger trial litigated
in the Northern District of California, United States v. Bazaarvoice, 13-CV-00133, 2014 WL
203966 (Jan. 8, 2014), started 245 days after the complaint was filed. Neither of these trials
occurred in the midst of a global pandemic and both involved only a single claim under Section 7.
As you are no doubt aware, a principal driver of expedited trial schedules in merger litigation is
defendants’ (dubious) claim that the expiration date of their deal necessitates a fast resolution.
Your letter omits any mention of the parties’ walkaway date, and indeed on our call yesterday you
refused to provide details as to whether the parties have made any effort to extend the expiration
date of their merger agreement, referring to it as a “private contract” matter. We therefore presume
this is not an issue driving your proposed schedule, further differentiating this matter from prior
merger litigation where Courts adopted shorter schedules to accommodate walkaway dates in the
defendants’ merger agreement.
In your letter, you point to the Division’s pre-complaint investigation to support a shorter time to
trial. While you are correct that the Division conducted some pre-complaint investigation, that
investigation was more limited than your letter suggests. For example, neither Defendant produced
any documents until May, and Visa did not complete its production of documents until July.
Moreover, the Division agreed to substantial limitations on its pre-complaint investigation by, inter
alia, narrowing its requests to a limited set of custodians and search terms, in exchange for the
right to conduct reasonable post-complaint discovery. Indeed, Defendants have already waived
the argument presented in your letter that the Division’s pre-complaint investigation should limit
post-complaint discovery, and acknowledged that Defendants’ compliance with the Second
Requests “is not sufficient to prepare the Division for a trial on the merits….” Timing Agreement
at 8.
In light of the ongoing global pandemic, the importance of this matter to American merchants and
consumers, and the discovery necessary for the Division to fully prosecute its Section 2 claim, the
Division’s proposed schedule culminating in a trial start date of September 7, is both reasonable
and necessary. We are open, however, to any proposal aimed at streamlining discovery or limiting
issues at trial. For example, stipulations regarding product market, geographic market, or the
existence of high entry barriers, or an agreement to limit arguments that will necessitate
international discovery, could facilitate agreement for a shorter schedule.
Investigative File
In your letter and our call, you repeatedly demanded that the Division produce its investigative file
– which primarily consists of information provided by Defendants, but also contains confidential
information from third parties, including competitors to both Visa and Plaid – without waiting for
the opening of formal discovery or entry of a protective order. As I reiterated multiple times on
the call, the Division considers the production of any third-party materials to be contingent on the
entry of a protective order that protects those parties’ rights and, if necessary, allows them to seek
further protection from the Court. Absent a protective order, third parties have no written
2
Case 4:20-cv-07810-JSW Document 42-1 Filed 11/17/20 Page 14 of 24
assurances regarding the treatment of their confidential materials and no recourse should
Defendants fail to appropriately maintain confidentiality of their documents. Moreover, your
suggestion that we begin the process now of notifying third parties that their materials will be
disclosed someday is inefficient. The Division cannot currently answer the key question third
parties will have, namely what is the scope of protection for their confidential materials. Your
proposal would necessitate the Division sending out two separate notifications: first, to alert third
parties that Defendants have requested their materials, and again once a protective order has been
entered.
Further, your demand that the Division produce pre-discovery materials without any reciprocity is
not well taken. The early production of our investigative file is a courtesy, done to meet ambitious
deadlines such as your proposed February 23 trial date, that is not appropriate here. If you would
like to discuss the reciprocal exchange of useful, targeted documents and information in advance
of formal discovery, we remain open to those discussions.
To start, once a protective order is in place, the Division is willing to offer pre-discovery
production of its investigative file once Visa produces all Project Altamira documents improperly
withheld during the Division’s pre-complaint investigation. Visa and Bain (at Visa’s behest) have
inappropriately delayed production of documents relevant to the Division’s investigation and this
litigation through spurious invocation of the attorney-client privilege and work product doctrine.
Visa’s suggestion that these documents are appropriately sought through formal discovery is
inefficient, and would require the Division to undertake for a second time the lengthy process of
issuing a document request, waiting for objections, and meeting and conferring before beginning
to resolve this issue. If Visa will not agree to immediate production of the Altamira documents,
we propose that the parties agree the issue is ripe for adjudication by the Court pursuant to an
expedited briefing schedule and have drafted language to that effect in our enclosed case
management order. After the Court adopts a protective order, rules on Visa’s privilege claims,
and Visa produces all non-privileged Project Altamira documents consistent with the Court’s
order, the Division will produce its investigative file.
In response to your inquiry as to the size of the Division’s investigative file, I have confirmed that
the file contains approximately 100G of documents from thirteen third-party CID recipients.
Protective Order
Also enclosed with this letter is a copy of the Division’s proposed protective order. Despite the
statements in your letter, the draft protective order you proposed deviates in significant respects
from the protective orders adopted by the courts in Sabre and Energy Solutions. The Division’s
draft is based on our model protective order, and incorporates additional provisions included in
the model for the Northern District of California. We believe this draft is more efficient and less
burdensome for third parties. For example, your proposal offered no explanation why an
unidentified number of in-house litigation and regulatory counsel should be entitled to see a
competitor’s highly confidential documents unless the third party undertakes the effort and
expense of seeking a court order to the contrary.
3
Case 4:20-cv-07810-JSW Document 42-1 Filed 11/17/20 Page 15 of 24
Confidentiality
The Division reiterates that is has and will continue at all times to meet its statutory and ethical
obligations regarding the publication of any party’s confidential information.
Best regards,
/s/
John Read
cc: Tara Reinhart, Esq.
Karen Hoffman Lent, Esq.
Jonathan Jacobson, Esq.
Scott Sher, Esq.
Justina Sessions, Esq.
4
Case 4:20-cv-07810-JSW Document 42-1 Filed 11/17/20 Page 16 of 24
EXHIBIT D
Case 4:20-cv-07810-JSW Document 42-1 Filed 11/17/20 Page 17 of 24
S KADDEN , A RPS , S LATE , M EAGHER & F LOM LLP
1440 NEW YORK AVENUE , N.W.
FIRM/AFFILIATE OFFICES
WASHINGTON, D.C. 20 005- 2111 -----------
________ BOSTON
CHICAGO
TEL: (202) 371-7000 HOUSTON
FAX: (202) 393-5760 LOS ANGELES
NEW YORK
www.skadden.com PALO ALTO
DIRECT DIAL WILMINGTON
-----------
202-371-7630
BEIJING
DIRECT FAX
BRUSSELS
202-661-9030 FRANKFURT
EMAIL ADDRESS HONG KONG
TARA.REINHART@SKADDEN.COM LONDON
MOSCOW
MUNICH
PARIS
SÃO PAULO
November 15, 2020 SEOUL
SHANGHAI
SINGAPORE
TOKYO
TORONTO
John R. Read, Esq.
United States Department of Justice
Antitrust Division
450 Fifth Street NW, Suite 4000
Washington, DC 20530
RE: United States v. Visa et al., No. 3:20-cv-07810 (N.D.
Cal.).
Dear John:
On behalf of Visa, Inc. and Plaid Inc. (together, “Defendants”), I write in
response to your November 13, 2020 letter, and specifically with respect to your
proposed trial date and your continued refusal to provide the DOJ’s investigative file.
We also enclose a mark-up of your draft protective order.
First, DOJ’s proposal for a trial start date of September 7, 2021, is
unacceptable. Indeed, in response to Defendants’ proposed February 2021 trial date,
DOJ previously informed Defendants that it would seek a July 2021 trial date, and
you have provided no basis for extending your prior proposal by an additional two
months. In any event, as explained in our prior correspondence and during our meet
and confer, it is critical to Defendants and the marketplace that this litigation proceed
with all due speed so that the closing of this transaction is not be unnecessarily
delayed. For Plaid in particular, the delay you propose would be devastating. The
uncertainty of the last several months has been bad enough, but the company is quite
concerned that a continued delay of the magnitude you suggest would cause a
massive loss of critical employees. Defendants reiterate our position that a February
2021 trial date is appropriate for this matter.
Case 4:20-cv-07810-JSW Document 42-1 Filed 11/17/20 Page 18 of 24
John R. Read, Esq.
November 15, 2020
Page 2
Second, as we have repeatedly explained, DOJ’s continued insistence that it
will only provide Defendants with its investigative file if Defendants agree to pre-
discovery production of documents that you know are subject to a claim of privilege,
is entirely improper. Defendants reiterate our position that DOJ should immediately
notify third parties and promptly provide its investigative file to Defendants.
Third, we have reviewed your draft protective order and have enclosed a
mark-up. Our revisions are modest and we expect they will be acceptable to you.
We believe the parties should be able to reach an agreement on this matter and would
like to resolve any remaining issues as soon as possible.
In our November 11 letter, we said we are at an impasse on the timing and
under what conditions the DOJ would provide its investigative file and that we
would petition the judge once one was assigned. We also have reached an impasse
regarding an appropriate trial date for this matter. We would like to get these case
management issues in front of Judge Freeman as quickly as possible, and plan to file
on Monday, November 16, an administrative motion to set a status conference at her
earliest convenience. Please let us know by Monday at noon whether you are willing
to join in such an administrative motion. In addition, please let us know whether you
are willing to proceed with a February 2021 trial, whether the DOJ is willing to agree
to immediately begin notifying third parties and provide its investigative file without
the quid pro quo you outlined in your letter, and whether you will accept our
revisions to the protective order.
Sincerely,
/s/ Tara Reinhart
Tara Reinhart
cc: Steven Sunshine, Esq.
Karen Hoffman Lent, Esq.
Jonathan Jacobson, Esq.
Scott Sher, Esq.
Justina Sessions, Esq.
Case 4:20-cv-07810-JSW Document 42-1 Filed 11/17/20 Page 19 of 24
EXHIBIT E
Case 4:20-cv-07810-JSW Document 42-1 Filed 11/17/20 Page 20 of 24
From: Reinhart, Tara L (WAS)
To: 'Bellshaw, Meagan (ATR)'; Read, John (ATR); Travers, Ryan J (WAS); 'SSher@wsgr.com';
'jjacobson@wsgr.com'; 'Sessions, Justina'; Sunshine, Steven C (WAS); Lent, Karen
Hoffman (NYC)
Subject: RE: U.S. v. Visa Inc. and Plaid Inc.
Date: 11/16/2020 1:31:00 PM
CC: Brader Leuchten, Cory (ATR)
BCC:
Message:
Meagan,
We have worked through your proposed case management order and have attached a redline reflecting
our edits. As you will see, there are few areas of significant disagreement, with the exception of the trial
date. The trial date, however, drives all of the interim dates in the litigation schedule, and it is clear that
the parties have fundamentally different views on when trial should start. We proposed a trial at the
end of February 2021, which is consistent with many prior merger litigations and allows ample time for
the parties to complete discovery and prepare their cases for presentation to the Court. You originally
proposed a July 2021 start date and then inexplicably pushed that out even further to September,
seeking a timeline longer than any other merger litigation we are aware of in the past 10
years. Defendants are willing to work with you in good faith to come to an agreement on the case
management order, but that is something the parties can continue to do as we await the judge's
scheduling of the case management conference. On trial date, we are at an impasse and it is time to
present the issue to the Court. We are comfortable that an administrative motion for an expedited case
management conference is the proper vehicle for the relief we seek, given that it is clear DOJ is seeking
to elongate the litigation timeline for tactical reasons. We intend to move forward with our motion
tomorrow.
Sincerely,
Tara
From: Bellshaw, Meagan (ATR) <Meagan.Bellshaw@usdoj.gov>
Sent: Monday, November 16, 2020 4:04 PM
To: Reinhart, Tara L (WAS) <Tara.Reinhart@skadden.com>; Read, John (ATR) <John.Read@usdoj.gov>;
Travers, Ryan J (WAS) <Ryan.Travers@skadden.com>; 'SSher@wsgr.com' <SSher@wsgr.com>;
'jjacobson@wsgr.com' <jjacobson@wsgr.com>; 'Sessions, Justina' <jsessions@wsgr.com>; Sunshine,
Steven C (WAS) <Steve.Sunshine@skadden.com>; Lent, Karen Hoffman (NYC)
<Karen.Lent@skadden.com>
Cc: Brader Leuchten, Cory (ATR) <Cory.Leuchten@usdoj.gov>
Subject: [Ext] RE: U.S. v. Visa Inc. and Plaid Inc.
Tara:
1
Case 4:20-cv-07810-JSW Document 42-1 Filed 11/17/20 Page 21 of 24
Following up on my email yesterday, the Division continues to believe that an administrative motion to
request an expedited status conference is premature. You still have not provided a response to our
draft CMO, nor have you provided a detailed schedule setting forth how a three-and-a-half month trial
schedule would work. Please provide a status update on your response. Even if we can’t reach
agreement on the exact schedule, there are many other provisions in our proposed CMO that we
believe the parties should be able to agree on and/or that would benefit from a meet and confer to
discuss any disagreements.
It is also unclear to us what Defendants intend to achieve with this status conference or whether an
administrative motion is the appropriate vehicle for the relief you are seeking (e.g. if you plan to use this
conference to compel production of our investigative file, that should proceed via a duly noticed motion
under Local Rule 7-2). We propose a meet and confer to discuss your request.
Finally, in your letter and on our call, you claim that the uncertainty caused by a longer time to trial
would be devastating to Plaid and cause a massive loss of critical employees. Please provide evidence
for this assertion and an explanation as to what steps the parties are taking to mitigate any expected
loss. For example, have the parties discussed additional employee retention bonuses for those
employees not currently expecting to receive one?
Meagan
Meagan K. Bellshaw
202.705.5854
From: Bellshaw, Meagan (ATR)
Sent: Sunday, November 15, 2020 8:24 PM
To: Reinhart, Tara L <Tara.Reinhart@skadden.com>; Read, John (ATR) <John.Read@ATR.USDOJ.gov>;
Travers, Ryan J <Ryan.Travers@skadden.com>; 'SSher@wsgr.com' <SSher@wsgr.com>;
'jjacobson@wsgr.com' <jjacobson@wsgr.com>; 'Sessions, Justina' <jsessions@wsgr.com>; Sunshine,
Steven C <Steve.Sunshine@skadden.com>; Lent, Karen Hoffman <Karen.Lent@skadden.com>
Cc: Brader Leuchten, Cory (ATR) <Cory.Leuchten@ATR.USDOJ.GOV>
Subject: RE: U.S. v. Visa Inc. and Plaid Inc.
Tara:
We are in receipt of your letter. We are considering your request regarding an administrative motion
for an expedited case management conference, but your Sunday afternoon missive requiring a response
within 24 hours is arbitrary and unreasonable. We will revert with our response once we have had a
chance to confer internally and consider your proposal. We will also review and respond to your
proposed changes to the draft protective order.
Our initial view is that a case management conference is premature. The draft scheduling order we sent
on Friday involved far more substance than the trial start date. When can we expect your response to
the remaining case management issues and a detailed proposal as to how you envision the various pre-
trial deadlines to work in your expedited schedule? You state in your letter that the parties are at an
impasse regarding timing, yet Defendants have made no meaningful effort to engage with us on the
2
Case 4:20-cv-07810-JSW Document 42-1 Filed 11/17/20 Page 22 of 24
numerous issues that come into play when determining whether a particular trial start date is
appropriate.
Meagan
Meagan K. Bellshaw
Attorney | U.S. Department of Justice | Antitrust Division
450 Fifth Street, NW | Suite 4000 | Washington, DC 20001
Tel: 202.598.2307 | Mobile: 202.705.5854
Email: meagan.bellshaw@usdoj.gov
From: Reinhart, Tara L <Tara.Reinhart@skadden.com>
Sent: Sunday, November 15, 2020 12:01 PM
To: Read, John (ATR) <John.Read@ATR.USDOJ.gov>; Travers, Ryan J <Ryan.Travers@skadden.com>;
'SSher@wsgr.com' <SSher@wsgr.com>; 'jjacobson@wsgr.com' <jjacobson@wsgr.com>; 'Sessions,
Justina' <jsessions@wsgr.com>; Sunshine, Steven C <Steve.Sunshine@skadden.com>; Lent, Karen
Hoffman <Karen.Lent@skadden.com>
Cc: Brader Leuchten, Cory (ATR) <Cory.Leuchten@ATR.USDOJ.GOV>; Bellshaw, Meagan (ATR)
<Meagan.Bellshaw@ATR.USDOJ.GOV>
Subject: RE: U.S. v. Visa Inc. and Plaid Inc.
Counsel, please see attached correspondence and revised protective order.
From: Read, John (ATR) <John.Read@usdoj.gov>
Sent: Friday, November 13, 2020 4:27 PM
To: Travers, Ryan J (WAS) <Ryan.Travers@skadden.com>; 'SSher@wsgr.com' <SSher@wsgr.com>;
'jjacobson@wsgr.com' <jjacobson@wsgr.com>; 'Sessions, Justina' <jsessions@wsgr.com>; Sunshine,
Steven C (WAS) <Steve.Sunshine@skadden.com>; Reinhart, Tara L (WAS)
<Tara.Reinhart@skadden.com>; Lent, Karen Hoffman (NYC) <Karen.Lent@skadden.com>
Cc: Brader Leuchten, Cory (ATR) <Cory.Leuchten@usdoj.gov>; Bellshaw, Meagan (ATR)
<Meagan.Bellshaw@usdoj.gov>
Subject: [Ext] RE: U.S. v. Visa Inc. and Plaid Inc.
Counsel,
Please see the attached correspondence and proposals for a protective order and a case management
order. We look forward to further discussion about these.
All the best,
John Read
From: Travers, Ryan J <Ryan.Travers@skadden.com>
Sent: Wednesday, November 11, 2020 10:51 AM
To: Brader Leuchten, Cory (ATR) <Cory.Leuchten@ATR.USDOJ.GOV>; Read, John (ATR)
<John.Read@ATR.USDOJ.gov>; Bellshaw, Meagan (ATR) <Meagan.Bellshaw@ATR.USDOJ.GOV>
Cc: 'SSher@wsgr.com' <SSher@wsgr.com>; 'jjacobson@wsgr.com' <jjacobson@wsgr.com>; 'Sessions,
3
Case 4:20-cv-07810-JSW Document 42-1 Filed 11/17/20 Page 23 of 24
Justina' <jsessions@wsgr.com>; Sunshine, Steven C <Steve.Sunshine@skadden.com>; Reinhart, Tara L
<Tara.Reinhart@skadden.com>; Lent, Karen Hoffman <Karen.Lent@skadden.com>
Subject: U.S. v. Visa Inc. and Plaid Inc.
Counsel,
Please see the attached correspondence.
Best,
Ryan
Ryan J. Travers
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, N.W. | Washington | D.C. | 20005-2111
T: 202.371.7347 | F: 202.661.8347
Ryan.Travers@skadden.com
Skadden
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4
Case 4:20-cv-07810-JSW Document 42-1 Filed 11/17/20 Page 24 of 24
Attachments:
Visa-Plaid_Redline_of_DOJ_Draft_CMO.DOCX
5
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