Could banks have saved billions of dollars in antitrust settlements if they had turned to independent antitrust counsel before entrusting their fate to Visa and MasterCard?
In the Visa and MasterCard antitrust litigations of the past 12 years, it appeared that many banks did not rely on independent counsel to evaluate or sanction practices that raised serious antitrust issues. Rather, the banks seemed to have wholly entrusted the case to Visa and MasterCard, which might have been a very costly mistake. Although Visa and MasterCard are represented by well-schooled and honest counsel, antitrust issues are not amenable to “black-or-white” formulations, and banks would be wise to use independent counsel to determine whether the advice provided by the card associations is consistent with the complex and constantly evolving antitrust laws.
For example, practices (such as exclusive dealing) that are benign when adopted by companies lacking market power can be anticompetitive – and illegal – when enforced by companies that have achieved dominance.