Amicus Curiae Brief — MountainWest Financial Corp. v. Visa U. S. A. Inc.

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femmes Court, U8 ™

FILED

2 MAY 19 1998

No. 91-1719 ‘

IN THE .

Supreme Court of the United States

OcTOBER Trr™, 1994

MOUNTAIN WEST FINANCIAL CORPORATION,

Petitioner,

Vv.

Visa U.S.A. INC..

Resnondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF OF AMERICAN EXPRESS

TRAVEL RELATED SERVICES COMPANY, INC.

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

WAYNE A. Cross

Counsel of Record

DEWEY BALLANTINE

1301 Avenue of the Americas

New York, New York 10019

(212) 259-8000

Attorneys for American

Express Travel Related

Services Company, Inc.

WILSON - Epes Printinc Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .... siccitclichasianabeltaibibaede a ii

INTEREST OF AMICUS CURIAE..................... 1

STATEMENT OF THE CASE ....................................... 2

SUMMARY OF ARGUMENT .................................. 3

SE Seach i, At Aas 4

I. VISA HAS MONOPOLY POWER WITH RE-

SPECT TO INTERBRAND COMPETITION... 4

II. VISA’S BY-LAW 2.06 SUBSTANTIALLY RE-

STRICTS COMPETITION AND CONSUMER

CHOICE IN INTERBRAND COMPETITION .... 8

A. By-law 2.06 Erected Barriers To Entry

Which Have Prevented New Entry .............. 10

B. By-law 2.06 Was Intended To Limit Oppor-

tunities For American Express To Expand

The Scope Of Its Interbrand Competition

WUE WR epic Le ee ome 11

C. Visa’s By-law 2.06 Prevents American Ex-

press From Expanding Its Innovative Prod-

| RS Bauer sipalabbabehenedswandetcs 13

i ER EE FIRE TEN ot DOT ORE 15

TABLE OF AUTHORITIES

Cases:

Continental T.V., Inc. v. GTE Sylvania, Inc., 433

Tse MEE TOUTED oecsinexsctsnstncnkinnirectensenisiiehicieliieinnmiiinaamaanas

MCI Communications Corp. v. AT&T, 708 F.2d

1081 (7th Cir. 1983), cert. denied, 464 U.S. 891

CIID ccs uiisiccsssiveisennttncsenepnaieieldieicibaicsdbedsidebciilees Unite: Aa

Visa USA, Inc. v. MountainWest Financial Corp.,

eS, § 8s). Eh Sh, | | nee

Miscellaneous Authority:

Stewart, Behind the Credit Card Network Grand

Prix, Credit Card Mgmt. 42-43 (Sept./Oct.

U.S. Department of Justice, Antitrust Division,

and Federal Trade Commission, Statements of

Enforcement Policy and Analytical Principles

Relating to Health Care and Antitrust, 67

Antitrust & Trade Reg. Rep. (Sept. 29, 1994

IG ssnicntacscniskenincnncipanensh <bedbabebiniiuaanbiane sigan

Page

IN THE

Siyprenw Cant of the Wnited States

OCTOBER TERM, 1994

No. 94-1719

MOUNTAIN WEST FINANCIAL CORPORATION,

. Petitioner,

Visa U.S.A. INC.,

is ; Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF OF AMERICAN EXPRESS

TRAVEL RELATED SERVICES COMPANY, INC.

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

American Express Travel Related Services Company,

Inc. (“American Express”) is one of the four significant

systems competitors in the market for general purpose

charge and credit cards in the United States. The other

three are the Discover Card, which is issued by an affiliate

of Petitioner, Respondent Visa U.S.A. Inc. (“Visa”) and

MasterCard International Incorporated (“MasterCard” ).'

By reason of its overlapping membership with Visa,

MasterCard does not engage in significant interbrand

competition with Visa. Accordingly, American Express

'In addition to these four major systems competitors, affiliates

of Citibank, N.A., Visa’s largest member, issue Diners Club and

Carte Blanche cards.

is the only effective systems competitor which is not a

party to this action. If the Court does not issue a Writ

of Certiorari to the Tenth Circuit and does not reverse

the Tenth Circuit's decision, interbrand competition and

consumers will be seriously injured.

STATEMENT OF THE CASE

In 1990, Dean Witter, Discover & Co. (“Dean Witter”)

purchased the assets of the predecessor to Petitioner

MountainWest Financial Corporation (“MountainWest” )

which was already a member of Visa. Dean Witter

thereupon sought to use MountainWest to implement

a strategy to issue multiple general purpose charge and

credit cards—the Discover Card and a MountainWest

Visa card called The Prime Option Card. Visa invoked

its By-law 2.06 to prevent MountainWest from issuing

its Prime Option Card.”

MountainWest commenced this action alleging a viola-

tion of Section 1 of the Sherman Act. In the District

Court, a jury found that Visa (i) possessed market power

in the general purpose charge and credit card market,

(ii) exercised that power when it collectively excluded

MountainWest from Visa membership, and (iii) thereby

injured competition. Accordingly, the jury found Visa

had violated Section | of the Sherman Act.

On appeal, the Tenth Circuit focused exclusively on

the functions in the charge and credit card business which

* At the time of MountainWest’s attempt to issue the Prime

Option Card, Visa had already adopted By-law 2.06, which purports

to exclude from Visa membership any entity which issues Discover

Cards, American Express Cards, or any other card deemed competi-

tive with Visa, or an affiliate of any such entity. While Diners

Club and Carte Blanche cards are clearly competitive with Visa

cards, they are iionetheless exempt from By-law 2.06 solely because

they are owned by Citibank. Visa adopted By-law 2.06 in response

to an earlier effort by Dean Witter to gain membership in Visa

through another financial institution. Although it has not adopted

any similar formal, written rules, MasterCard has engaged in the

same exclusionary practices as Visa.

are associated with issuing credit cards to consumers. It

concluded that, since there were thousands of issuers of

Visa credit cards and no one issuer had a dominant share

of an “issuer market,” Visa did not have market power

in the “issuer market.” Concomitantly, it concluded that,

since elimination of MountainWest as an issuer of Visa

cards represented nothing more than the elimination of

one of thousands of competitors, there could not be any

harm to competition—e.g., consumers. This conclusion

led to its analysis of the role of market power as a

threshold screen in rule of reason cases and of the busi-

ness justification for admitted collective restraint on

competition which are addressed in MountainWest’s Peti-

tion For A Writ of Certiorari.

SUMMARY OF ARGUMENT

American Express submits that the rule of law estab-

lished by the Tenth Circuit is likely to result in significant

harm to interbrand competition in the market for general

purpose charge and credit cards.

The effect of the Tenth Circuit’s decision is that (1)

innovative competitors like American Express and Dean

Witter will be prevented from issuing Visa or MasterCard

cards and (ii) interbrand competition with Visa and

MasterCard will be undermined because a wide variety

of financial institutions will be deterred from issuing cards

bearing their own proprietary brands or the brands of

American Express or Discover for fear of denial of the

benefits of Visa membership. These restraints on the

issuance of such competitively branded cards will limit

consumer choice to the brands now available, and the

development of new, innovative products will be sub-

stantially stifled.

ARGUMENT

I. VISA HAS MONOPOLY POWER WITH RESPECT

TO INTERBRAND COMPETITION

The Tenth Circuit limited its analysis of market power

and competitive injury to the competition among issuers

of bankcards. By focusing solely on such intrabrand com-

petition, it concluded that the “issuer” market is “atom-

istic” because there are thousands of bankcard issuers

and, therefore, held that any collective restraint on new

membership was effectively immunized from antitrust

scrutiny. It casually brushed aside Dean Witter’s effort

to focus on the adverse impact on interbrand competition

by noting that “[a]lthough the District Court did not end

its rule of reason analysis upon that finding [that Visa

had market power] the conclusion set the path for its

uncharted journey upon a landscape of speculation, con-

jecture, and theoretical harm.” Visa USA, Inc. vy.

MountainWest Financial Corp., 36 F.3d 958, 969 (10th

Cir. 1994).

Furthermore, by limiting its analysis to the impact on

competition at the issuer level, the Tenth Circuit ignored

the clear realities of the market place. Issuers of credit

cards issue cards only in the context of credit card net-

works or systems, such as Visa and MasterCard. These

networks or systems develop and maintain networks of

merchants which accept the cards bearing their brands.”

They also electronically link merchants to issuers of

credit cards and provide electronic authorization and fi-

nancial settlement functions. Without these functions,

credit and charge cards are useless and irrelevant to con-

sumers and merchants alike. Visa itself has emphasized

the importance of these systems to competition.

* Each of the four general purpose credit card systems markets

its services to cardholders and merchants alike through a unique

brand associated with the system. Hence intersystem competition

is also interbrand competition. As such, the terms will be used

interchangeably herein.

“Certain important functions are (and must be) car-

ried out at the system level. Thus, Visa, itself, pro-

vides the mechanisms through which millions of Visa

transactions are approved and settled between mem-

bers every day. App. 423-32, 1408. It also defines

the quality of service at the point of sale and oper-

ates a nationwide lost card and customer complaint

service. App. 423-32, 1403 A-B. As demonstrated

at trial, many technological and product develop-

ments are attributable to competition between charge

card systems .... Similarly, competition with other

card brands has prompted Visa to develop numerous

product enhancements (e.g. Visa Gold). App.

428-33

Opening Brief of Appellant Visa U.S.A. Inc. in The

United States Court of Appeals for the Tenth Circuit

(“Visa Brief”) at 10.

Each of the four major existing systems—Visa, Master-

Card, American Express and Discover—-performs these

functions. The skill with which they do so differentiates

them from their rivals and provides a preeminent oppor-

tunity for competition and enhancement of consumer wel-

fare. By seeking to improve their systems’ functions they

are able to attract consumers to utilize cards bearing

their respective brands.

Visa itself has aggressively asserted the significance of

such interbrand competition:

“There is also competition at the system level. Thus,

for example, Visa (or MasterCard), Discover, and

American Express compete on technologies, system

functions, advertising and product innovation .. .

The competitive structure at the system level is quite

different from that at the issuer level. There are, at

most, four or five competing card systems: Visa,

MasterCard, Discover, American Express and, in

Sears’ view, Diners Club. The HHI at the system

level is a highly concentrated 3231. See Opn. 993

at n.433.” *

Visa Brief at 61-62.

Because virtually all banks that belong to Visa also

belong to MasterCard, banks that issue MasterCard cards

do not engage in any serious competitive activity against

Visa at the brand level. Moreover, since Visa and

MasterCard control in excess of 70% of the business

conducted in the general purpose charge and credit card

market, the Tenth Circuit concluded that

“these raw figures may suggest Visa USA possesses

market power in the intersystem market.”

Visa v. MountainWest, 36 F.3d at 967.

However, by limiting its analysis of market power and

competitive injury to competition at the individual issuer

level, the Tenth Circuit ignored this Court’s holding that

“interbrand competition . . . is the primary concern of

the antitrust law.” Continental T.V., Inc. v. GTE Syl-

vania, Inc., 433 U.S. 36, 52 n.19 (1977). It also ig-

nored a trial record replete with evidence of injury to

interbrand competition caused by By-law 2.06.

The jury found that By-law 2.06 had a harmful effect

on interbrand competition. Dean Witter would not have

developed its proprietary Discover card had it known that |

it would be faced with an either-or choice between com-

peting solely within Visa or from without. (Appendix

320-21)°* Dean Witter instead had a multicard strategy

*It should be noted that this admission by Visa that the credit

card industry is “highly concentrated” by itself would render By-law

2.06 suspect under the Statements of Enforcement Policy and

Analytical Principles Relating to Health Care and Antitrust issued

jointly by the Antitrust Division of the U.S. Department of Justice

and the Federal Trade Commission on September 22, 1994, which

provide that exclusivity arrangements in joint ventures with

greater than 20% share will receive heightened scrutiny.

5 Since no appendix has yet been filed in this Court, references

to the record herein are to the Appendix and Supplemental Ap-

Hiiencciemnmiiiiaantiiiiiliiiiiliaiaiiiiiidiiiiiea idl

(i.e., proprietary brand plus a Visa or MasterCard brand)

predicated on the belief that the ability to compete effec-

tively in the credit card market required access to the

nearly universal coverage that Visa’s 6,000 members had

achieved by pooling their vast resources. The effect of

By-law 2.06 will be that actual and potential issuers of

general purpose charge and credit cards will be de-

terred from pursuing such a multicard strategy. (Supple-

mental Appendix M490-514, M515-51, M688-89) The

ability to pursue multicard strategies would unquestion-

ably strengthen interbrand competition by creating cost

efficiencies and permitting competitors to utilize econo-

mies of scale and scope not otherwise available. (See

e.g., Supplemental Appendix M700-04, M708, M710-12,

M281-339, M627; Appendix 750-54, 1097, 1549-68)

However, By-law 2.06 has foreclosed these pro-

competitive activities. Accordingly, no firm has at-

tempted to introduce a new general purpose proprietary

card outside the two bankcard networks since enactment

of By-law 2.06. Indeed, expert testimony at trial estab-

lished that By-law 2.06 “provide[s] a very, very substan-

tial disincentive, a kind of penalty, if you will, for the

development of new proprietary cards in this market.”

(Appendix 690, 763)

Aithough the jury and the District Court considered

all this evidence of competitive injury to interbrand com-

petition and found that Visa’s By-law 2.06 violated the

antitrust laws, the Tenth Circuit ignored it and ruled as

a matter of law tnat Visa’s restraint of competition did

not violate the Sherman Act, even if it made Dean Wit-

ter a less effective competitor.

The Tenth Circuit’s failure to analyze the impact of

Visa’s By-law 2.06 on interbrand competition caused it

to reach two fundamentally flawed conclusions. First, it

pendix filed by the parties in the United States Court of Appeals

for the Tenth Circuit.

held that neither Visa nor any of its members possessed

market power, thereby ignoring Visa’s overwhelming

market dominance in the systems (e.g., interbrand) mar-

ket. This erroneous finding of the absence of market

power led it to conclude that, under a rule of reason

analysis, Visa’s By-law 2.06 could not, as a matter of

law, pose a significant competitive threat. Consideration

of intersystem competition would have led to a contrary

result.

Second, the Court limited its evaluation of actual in-

jury to competition to its effects on competition between

individual issuers, thereby wholly ignoring the serious

injury, at the interbrand level, to competition and con-

sumers resulting from By-law 2.06.

Il. VISA’S BY-LAW 2.06 SUBSTANTIALLY RESTRICTS

COMPETITION AND CONSUMER CHOICE IN IN-

TERBRAND COMPETITION

Visa’s By-law 2.06 is not incidental or innocent. It was

adopted and has been enforced by Visa as part of a col-

lective plan to undercut the utility of the general purpose

cards of credit card systems which compete with Visa.

The utility (usefulness) of a credit card product to a

card holder depends upon a variety of closely interrelated

features such as value, customer service and merchant

acceptance of the card. Similarly, the utility of a credit

card product to merchants who accept it is dependent

upon features such as discount rate, payment terms and

volume of traffic. The strength and vitality of a credit

card system brand is directly dependent upon the inter-

relationship of two sets of factors which determine card

utility. For example, the utility of a card to a card

holder turns in large part on whether it is accepted at

the business establishments he or she frequents. A card

which is not accepted at virtually all airlines, car rental

agencies, hotels and restaurants would have relatively low

utility for a frequent business traveler. On the other

hand, a card which is widely accepted at such travel

and entertainment locations, but not in retail establish-

ments, such as service stations, pharmacies and hardware

stores, would have relatively little utility to a nontraveler

who wished to use a credit card primarily for retail pur-

chases. Thus, the degree of merchant coverage is a crit-

ical component of utility, which determines whether a

consumer will carry a particular card.

Merchants, on the other hand, are induced to accept

a card for purchases based upon their perception that a

great many consumers carry the card and will us~ ‘t if the

establishment accepts it, thereby increasing the merchant’s

volume of business. Thus, a card which is carricd pre-

dominantly by business travelers may not be of great

interest to local retail establishments.

A credit card system grows or diminishes in strength

by the interplay of these different characteristics of utility.

If a credit card system, such as American Express, can

successfully increase the number of merchants who accept

its products in given industry segments, then its success

in increasing the number of card holders will be directly

enhanced. This enhanced number of card holders will

cause an increased demand to use the card at merchant

locations, which results in expanded merchant coverage.

The reverse is also true. Diminished merchant coverage

reduces the number of card holders which, in turn, tends

to further reduce merchant coverage. This growth (or

shrinking) of networks by the interplay of factors ex-

ternal to the network itself—mutually reinforcing mer-

chant and card holder perceptions—is common to all

network businesses such as telephone companies, auto-

mated teller machine (“ATM”) networks and airlines.

Such “network externalities” can, and do, determine com-

petitive success in all networks and particularly in the

credit card business. Put starkly, more card holders re-

sults in more merchants and more merchants results in

more card hoiders.

This undeniable economic phenomenon renders absurd

Visa’s “property rights” argument, that it has restricted

Visa membership in order to preserve the benefits of the

joint venture. Permitting new aggressive issuers access

to Visa’s network could only increase network externali-

ties and thereby render the joint venture more valuable

for all of Visa’s members. In fact, Visa is constantly ad-

mitting new members almost without regard to their

affiliations so long as they do not issue a competitive card

product. The fact that Visa has acted to diminish the im-

pact of such network externalities can only be explained

by Visa’s desire to limit interbrand competition.

A. By-law 2.06 Erected Barriers To Entry Which Have

Prevented New Entry

It is undisputed that Dean Witter decided to create its

own proprietary system, and thereby introduce a new

brand onto the credit card landscape, only as part of a

multicard strategy which also included issuing a bank-

card under at least one of the Visa or MasterCard brands.

Dean Witter would not have considered introducing a

new brand had it known it would be required to forego

the economies of scale and financial benefits of bankcard

association membership. Hence, if By-law 2.06 had

existed at the time Dean Witter launched Discover, it

would have joined Visa or MasterCard instead of intro-

ducing its proprietary card.

At the time of the launch of Discover, Visa identified

over 100 firms which it considered “potential competi-

tors” to Visa. Some of those firms were already mem-

bers of Visa while others were not. They included com-

panies such as Ford Motor Credit Co., General Electric

Capital Corp., ITT Financial Corp., General Motors Ac-

ceptance Corp., and Chrysler Financial Corp., all of

which had the financial and technical resources, together

with existing networks of dealer and consumer relation-

ships, which could potentially form the basis for the crea-

tion of a credit card system under a proprietary brand,

rather than the Visa brand. By adopting By-law 2.06,

and subsequently enforcing it against MountainWest,

Visa quite effectively served notice that the consequences

of attempting to create a competitive brand of credit card

was the loss of the huge financial benefits of Visa mem-

bership. By-law 2.06 also deprived such “potential com-

petitors” of the technological and financial economies of

scale inherent in a multicard strategy. Thus, By-law 2.06

dramatically increased the costs of establishing a new

brand. Faced with these barriers, not one of the 100

“potential competitors” has attempted to launch a new

proprictary brand. Virtually all of them have instead

opted for Visa and or MasterCard membership.

The deterrent impact of the barriers to entry sanc-

tioned by the Tenth Circuit’s opinion is not limited to the

charge and credit card market. The rule of law estab-

lished by the Tenth Circuit is that any network joint

venture may deny access to its network without regard

to the extent of the joint venture’s market power. Thus,

Whereas a single firm network with monopoly power

would be constrained in its access rules by the antitrust

laws, see, e.g., MCI Communications Corp. v. AT&T,

708 F.2d 1081 (7th Cir. 1983), cert. denied, 464 USS.

891 (1983), under the Tenth Circuit's ruling a joint

venture with monopoly power has no such restraints.

This rule of law may have very harmful effects in other

joint venture network situations, e.g., ATM’s, debit cards,

telecommunications joint venture and health care pro-

vider networks.

B. By-law 2.06 Was Intended To Limit Opportunities

For American Express To Expand The Scope Of Its

Interbrand Competition With Visa

The market for general purpose charge and credit

cards is quite dynamic. It is growing rapidly and evolv-

ing, as demand emerges for new products. Similarly, new

technological developments by credit card systems make

possible an ever widening variety of products targeted at

increasingly differentiated consumer segments. American

Express has historically been a leader in developing and

introducing such innovative products.

For example, American Express has developed and in-

troduced corporate card and purchasing card products

which are extremely attractive to business customers.

The unique combination of discount structure, customer

service, world wide capabilities, travel services and man-

agement information systems developed by American Ex-

press has given these American Express products signifi-

cant competitive advantages. Those features make issu-

ing an American Express branded corporate card or pur-

chasing card product, which would be processed over the

American Express network, highly desirable to a wide

variety of financial institutions which might be interested

in entering the credit card business.

American Express may wish to expand its interbrand

competition with Visa by entering into arrangements with

financial institutions which would issue American Express

branded corporate or purchasing card products. Visa’s

By-law 2.06, however, will cause these institutions to be

reluctant to consider entering into such arrangements

with American Express. For the same reasons that none

of Visa’s “potential competitors” have decided to issue a

“competitive” card under their own brand, no such insti-

tution will likely forego the potential benefits of Visa

membership if that is the price of issuing an American

Express branded card."

® Nor is this impact limited to American Express. The same

effect will undoubtedly be felt by the fledgling credit card network

that Dean Witter has developed. Dean Witter intends that the

network of merchants that accept Dean Witter’s Discover Card

will be capable of supporting additional cards, which could be issued

by Dean Witter or other firms. So long as By-law 2.06 remains in

effect, however, it is highly unlikely that Dean Witter’s network

(which it calls the “NOVUS Network”) will attract third party

cards or become a serious competitor against the Visa network.

pS ee

This deterrent effect of By-law 2.06 will be precisely

that planned by Visa—a reduction of the effectiveness of

innovative products offered by interbrand competitors with

a reduction of potential transaction volume on their net-

works. Visa’s intention in enacting and enforcing By-law

2.06 was to interfere with the network externalities of

competitors and thereby undercut interbrand competition.

Unless By-law 2.06 is invalidated, Visa may succeed and

its already dominant position will become even more

entrenched.

C. Visa’s By-law 2.06 Prevents American Express From

Expanding Its Innovative Product Offerings

Visa's By-law 2.06 precludes American Express from

offering innovative charge and credit card products which

bear brands owned by American Express, but which

utilize the Visa network and share the Visa brand.

Through the collective resources of its 6,000 member

banks, Visa has been able to develop a network of mer-

chants who accept Visa branded products which provides

nearly universal coverage and is extremely difficult for a

single firm such as American Express or Dean Witter to

duplicate in a timely and cost efficient manner. In order

to strengthen its system and compete more effectively, in

addition to continuing to offer card products on the

American Express network, American Express may want

the option of issuing credit card products bearing brands

and offering services introduced by American Express,

but utilizing the Visa network. American Express would

thus have the ability to create products which have not

been, and cannot be effectively, offered by current Visa

members. Such products would enhance consumer well-

being by linking credit/charge card services to other prod-

ucts and services which are unique to American Express.

They would, at the same time, enhance American Ex-

press’ market relevance and provide it with significant

cost efficiencies and technological economies of scope and

scale, with the overall effect of strengthening American

Express’ ability to compete with Visa.

The pro-competitive, and pro-consumer, effect of such

innovative product offerings has been eliminated by Visa’s

By-law 2.06. The effect is that consumers who require

nearly universal coverage are relegated to accepting those

products which the Visa membership chooses to offer and

are denied the option of selecting unique, innovative prod-

ucts designed by American Express or Dean Witter. More-

over, these anti-competitive effects will occur in a con-

text in which products which could be offered by Ameri-

can Express or Dean Witter over the Visa network would

have increased the efficiency of the Visa network to the

advantage of all existing Visa members. The only ex-

planation for these restrictions is Visa’s desire to further

entrench Visa’s dominant position.

The harmful impact of the Tenth Circuit’s upholding

By-law 2.06 transcends Visa’s dominance of the credit

card industry. The Visa joint venture, directly or through

affiliates, controls other vital networks within the U.S. pay-

ment system, including debit card, ATM and merchant

processing networks. Emboldened by the Tenth Circuit’s

decision, Visa will now feel free to use its monopoly

power to further exclude competitors in these other criti-

cal areas. If Visa’s anticompetitive practices are not re-

strained, there is a dangerous probability that Visa will

ultimately achieve its long-articulated goal—to dominate

and control the payment systems, leaving no room for

competition.’

7 See, e.g., Behind the Credit Card Network Grand Prizx, Credit

Card Mgmt. 42, 43 (Sept./Oct. 1988), quoting Roger Peirce, then

an executive vice president at Visa, “Visa expects to dominate the

transmission of transactions between sources and destinations.

I’m not sure there’s room for anyone else.”

CONCLUSION

For the reasons stated above, American Express re-

spectfully submits that A Writ of Certiorari To The

United States Court of Appeals should issue and the deci-

sion of that court should be reversed.

Respectfully submitted,