Priceless: The Case That Brought Down the Visa/MasterCard Bank Cartel (23 page)

I slept for five out of the next sixty hours and prepared a new opening. Our trial team reworked the entire trial script in those sixty hours. At C&P, it was the age of miracles.

F
OR A PERIOD of time in the year 2000, we prepared for a trial scheduled to begin on November 27, 2000. We began to assemble witness lists, documents, and portions of the videotaped depositions we would show to the jury. We actually began to prepare certain trial witnesses. We even conducted one trial simulation and scheduled a full mock trial for October 2000. However, when the Second Circuit mechanically acceded to Judge Gleeson’s request that it review his class-certification decision and sloppily allowed the appeals procedures to drag on for twenty-one months, the possibility of a trial in the year 2000, or any time soon after, disappeared. Judge Gleeson told us he would not reschedule the trial until Visa/MasterCard had exhausted the appellate process, including the defendants’ promised trip to the Supreme Court. That meant we would not have a trial until at least 2002 and, as it turned out, well into 2003.

This delay could have crushed us. But similar to our approach to the magistrate judge’s refusal of our request to limit the scope of discovery and our response to the court’s reopening of summary judgment, expert reports, and expert depositions years after they concluded, we turned this additional problem into an advantage. We used the time
to painstakingly put together a trial plan. We refined this plan and the trial script in numerous prep sessions and simulations performed for our clients, for eight additional mock juries, and for the trial team audience at C&P, on many Saturday nights.

After the November 27, 2000, trial date was adjourned indefinitely, my personal trial preparation resumed on September 4, 2001. I know, as I write this date, that it conjures in my mind, and likely in the readers’, the words “just one week before.” Of course, I didn’t know the world would change a week later or that preparing for trial would help me get through what happened on September 11, 2001.

On 9/11, I was on my way into C&P’s Manhattan office, on Madison and 51st, diagonally across from the back of Saint Patrick’s Cathedral, when I first heard the reports. At that point, only one tower had been hit. As the morning went on, C&P experienced the events as millions of other families did. Each few minutes brought another indelible image. I was on the phone with Eliot Spitzer five minutes after he witnessed the second plane hit the South Tower, as he was looking through his window in the attorney general’s office at 120 Broadway, a few hundred yards away from Ground Zero. Eliot and I had worked together in the South Tower back in 1982.

As a group, C&P watched the Twin Towers collapse and the streets of Nablus and East Jerusalem erupt in wild jubilation. Eliot called again to find out what was going on uptown, and I told him to gather his staff and “get the hell out of there.” Eliot then led a contingent from the AG’s office, who walked from Lower Manhattan to the Governor’s New York City headquarters at 633 Third Avenue near 40th Street, where I would serve as his Senior Advisor years later.

Everybody at C&P was able to quickly and mercifully get in touch with their immediate families, except one lawyer, Stacey Mahoney. Carl, her husband, who worked near Ground Zero at Pine Street and Maiden Lane, appeared to be lost. Later he was found
dazed, alive, and physically unhurt. Still later, we were told that Neil Levin, a friend whom I had vacationed with weeks before, had perished after making sure that most of his staff at the Port Authority were safely evacuated from the North Tower. Right after that, we got word that Stacey Sanders, the daughter of John Sanders, one of C&P’s clients, had perished while working for Marsh &McLennan in the North Tower. Within months, Alison Ross, a dazed young angel, would come to work with us at C&P on the
Merchants
’ case. Her beloved father, Richard, had been on one of the planes flown into the towers. Alison’s sister Abigail, Richard Ross’s older daughter, also lost her best friend, Stacey Sanders, that day. The “more fortunate” New York families experienced and continued to experience September 11, 2001, in the horrendous but slightly removed manner that C&P did.

By 4:00 PM on 9/11, I turned back to the trial preparation project I had begun the week before and forced myself to go through the motions of working for awhile. The impulse that motivated me to do some work, or at least make believe, was the same as described by many friends and acquaintances. Our work, customs, and rituals would see us through, and we wouldn’t let “them” take that away. After that, I walked home with a close friend from Kaye Scholer who was afraid to walk home alone.

The next day, I had trouble concentrating on work. But with each succeeding day, it got easier. The nights were filled with CNN and NPR, but the days were my escape. Each person lucky enough to be spared the death or maiming of a loved one still needed an escape. This was mine, and while I was doing it, the escape was complete. Business ground to a standstill. The phone rang very little while I read, reread, and analyzed the discovery record in the
Merchants’
case. I wrote and compiled three documents, which we called “The Log,” “Lloyd’s Book,” and “The Dialogue.”

The Log was a compilation of what I considered to be the most important documents in the case. First, I culled documents from the exhibits to the 39 depositions I had taken or defended. Since these depositions involved many of the most important witnesses, this was a good start. Later, I invited all C&P attorneys and paralegals working on the case to bring me what they considered the most important documents, good and bad. I eventually put more than 1,200 documents into The Log. I reread each document several times, highlighted the key portions and wrote a short narrative explanation of why each document was important. I formulated and named 57 issue codes, such as “defendants’ market power” and “credit is a market.” Each document was assigned one or more of these codes. The Log kept growing, and each C&P attorney and paralegal periodically received updated and refined electronic and hard copy versions of the document.

The Dialogue was made up of important extracts from the 400 depositions, with descriptions of each deposition extract in the form of a dialogue and debate between me and the other attorneys and paralegals at C&P. The Dialogue, which eventually amounted to several thousand pages, began when I asked C&P attorneys to nominate the ten best and ten worst deposition extracts involving the key themes and issues in the case. Through several rounds of “nominations,” arguments, and renominations, we compiled the 1,066 best and worst pieces of deposition testimony. I wrote a commentary on each, stating why I agreed or disagreed with a nomination. The lawyers replied to my commentary with their own comments. This led to additional nominations, commentaries, and responses. The last version of The Dialogue had more than 1,300 deposition extracts with dueling commentary.

The third document, Lloyd’s Book, was my narrative version of the
Merchants’
case, organized around the elements of the merchants’ two main claims against Visa/MasterCard: for illegal tying of debit to credit and attempted monopolization of the debit card market. In the
last of many iterations, Lloyd’s Book was a 650-page story script. The story contained the very best documents, deposition extracts and other evidence in the order we would attempt to present them at trial. I kept this work to myself and one other C&P attorney, Michelle Peters, for more than a year. Michelle moved into my office to help me write it. While sitting in front of our adjacent computers, I told Michelle that we were like Ferrante and Teicher, but she was too young to understand my reference to the wildly popular twin piano team that banged out famous movie themes and other standards on TV shows like Ed Sullivan’s or Perry Como’s. Every lawyer and paralegal at C&P had the later versions of Lloyd’s Book. Several months were spent analyzing the authenticity and admissibility of each piece of evidence referenced in it.

More important than my personal trial preparation and self-therapy was the preparation of the C&P trial team, who were joined by several lawyers whom we had selected from among the law firms assisting us. The trial team reconfigured the massive discovery record into a workable format. They reviewed roughly 500 deposition transcripts from our case and the United States’ case against Visa/MasterCard, as well as the trial transcript from the U.S. case. They reviewed, again, the roughly one million pages of documents deemed “interesting” from more than five million pages originally produced.

Under the supervision of Bob Begleiter, the team wrote trial memos on each class representative, each defendant, and each important third party. Trial memos were also written on topics such as “electronic commerce,” “hardware vendors,” and industry consultants such as Andersen Consulting and MasterCard’s analogous alter ego, Edgar Dunn Associates. Each trial memo identified the witnesses, documents, and deposition extracts that would tell this particular part of our story. Attorneys analyzed the authenticity and admissibility of the evidence and constructed a plan for introducing each piece of evidence at trial.

“Movie Night” became a regular event at C&P after the Supreme Court denied Visa/MasterCard’s petition for certiorari in June 2002. Each attorney who took an important deposition made a movie from segments of the videotaped deposition, which we might show to the jury at trial. The first cuts were as long as three-hour epics and as brief as five-minute short subjects. The attorneys, often with the help of C&P’s technical gurus, Jon Shaman, Jason Lipton and Kevin Potere, made these movies on their computer screens with movie clip creation software that C&P had purchased and modified ourselves during the case. Every lawyer and paralegal at C&P had hundreds of thousands of documents and hundreds of deposition transcripts and videos accessible on their computers. These could be sorted, sifted, and searched by name, word, subject, or the fifty-seven issue codes we created. The video images could be synchronized with documents and scrolling transcripts.

Each Movie Night, the attorney/director played his or her film for the trial team. We ripped the movie apart and conducted a group edit as we watched. In this process, watching and group-editing a five-minute movie could last thirty minutes, and a three-hour epic could take until midnight or beyond.

Movie nights, which began in June 2002, were eventually held four nights a week at our midtown office. After the group edit, the team watched the edited movie, and reedited it as many times as was necessary to make it concise, comprehensible and compelling for a jury. We also knew that the defendants would counter-designate other portions of the same video depositions that they wanted to show the jury. Knowing this, we tried to include, in our movies, the parts of the depositions we thought the defendants would want to show. This would minimize disputes.

A year before trial, our attorneys resumed the drafting of trial testimony that had begun in 2000. We drafted testimony for 270 witnesses whom we might call to testify at trial. In reality, only a small percentage
of our 270 and the defendants’ 460 designated witnesses would have actually testified at the three-month trial.

We met with our key witnesses many times. They were scattered all around the country. I traveled to Phoenix three times to meet with one witness, Ralph Spurgin. Other trial witness preparation trips took me to Bentonville, Arkansas; Pleasanton, California; Richmond, Virginia; Hoffman Estates, Illinois; and Columbus, Ohio. I traveled to Washington, D.C, and Boston so many times that I left clothing and squash racquets in “lockers” I established in those cities. There also were shorter trips to local merchants who would testify for us. One of these was a manager at Fairway, the famous Upper West Side food market, where weekend shopping resembles the roller derby. Another trial witness I prepped several times was Barry Rosenberg, the owner of a tiny and beloved Lincoln Center area bakery called Soutine.

The preparation of our expert witnesses was primarily done by my partner, Jeff Shinder, who is an economics wiz. This preparation began in 1997 and entailed many trips for Jeff to Toronto and Milwaukee and for both of us to Cambridge, Massachusetts. Trips to the Bay Area were my personal favorites. No matter how late I arrived, and how hectic the schedule was, I always got a thrill when the taxi passed Candlestick Park and approached downtown San Francisco. My ritual was to check into the old Clift Hotel, Room 1703, and take a shower in the uniquely strong water pressure that I discovered that room offered. I would put on a suit jacket, go down to the Redwood Room and have a drink while gazing at the massive Gustav Klimt reproductions on the walls, especially
The Kiss.
Most of the time, this was a single drink, imbibed in solitude. But at times, I was joined by a colleague, a client, a stranger, and twice by Larry Popofsky, Visa’s lead counsel.

My least favorite trips, but only at the end, were to Bentonville, Arkansas, the home of Wal-Mart. It’s a tough place to get to. The trip was made easier during the course of the case by the construction of
what is euphemistically called “Northwest Arkansas Regional Airport,” two miles away from the Wal-Mart Home Office. When these trips began, they were much harder to make but exciting and enjoyable. During one of those early trips to Bentonville, before the Wal-Mart airport was built, we traveled to Fayetteville through Memphis in an ice-storm. We got to hear someone from the maintenance crew shout, “Does anyone around here know how to de-ice the wings?” Later that night, Mitch Shapiro and I checked into a budget motel recommended by Wal-Mart, which prominently advertised the availability of massages but warned that you couldn’t get a “sexual massage.” As the years dragged on, the trips became easier and the accommodations and food better, but the relationship with Wal-Mart became tense.