Free Priceless: The Case That Brought Down the Visa/MasterCard Bank Cartel by Lloyd Constantine

they agreed.
    Seven years later, an attorney representing one of the class members objecting to our attorneys’ fee application told the judge:
    What Class Counsel did here seems to be to be a little bit crazy. They risked the firm. It was a bet the firm case on a case that really seemed to be a negative lawsuit. It really looked like a huge longshot.
    When it became clear in 1996 that no government antitrust agency would file its own case, I was authorized by Wal-Mart and The Limited to finalize a complaint. We went through fourteen drafts, including one several hundred pages long with an extensive set of annotations detailing the proof supporting each allegation. Many lawyers consider a complaint something like a lob serve in volleyball. They don’t use it as a weapon but merely as a device to get the game going. The conventional view is that the complaint should be a short and simple document setting forth just enough facts to meet the requirement of putting the defendants on notice about the nature of the legal claims being made against them. I use a different type of complaint, a “singing complaint,” whichexhaustively details the facts and tells a story. A complaint like this gives the judge an immediate education. It gives reporters something to write their stories with and contrasts favorably with the typically opaque and formulaic “deny, deny, deny” mantra in defen-dants’ answers.
    In the Merchants’ case, there would be extensive press coverage. The names of the parties alone would be newsworthy. The fact that corporate giants were suing, instead of being sued, in a class action, was offbeat in a “man bites dog” way. The issues were important but hard to explain. We needed to explain them to a class of millions of U.S. stores that we purported to represent. We would never be able to directly communicate with even a small fraction of these stores. The best we could do was to allow the story to be told simply and clearly in the press and to create court documents that reporters could easily use to write their own stories.
    The complaint was going to be the first of these court documents. In the thirteenth and penultimate draft complaint, like in the first twelve, Wal-Mart and The Limited sued Visa and MasterCard in a purported class action on behalf of every merchant in the U.S. that accepted Visa and MasterCard credit cards. The complaint called the plaintiffs “merchants,” a term more expansive than “stores” or “retailers.” Merchants included entities such as colleges, charities, and government agencies that also accept plastic cards for payment.
    The fourteenth version of the complaint, which was filed in the U.S. District Court for the Eastern District of New York in Brooklyn on October 25, 1996, named Visa as the only defendant. The complaint plainly said that MasterCard was equally culpable for the antitrust violations alleged, but treated MasterCard as an unsued, but named, coconspirator.
    At the last minute, Wal-Mart asked that MasterCard be given a chance “to do the right thing.” To its credit, Wal-Mart, the most frequently sued business in the world, really didn’t like litigation.Its conservative and Southern worldview considered litigation a breakdown in polite business dealings. The people at Wal-Mart are genuinely polite, from Rob Walton, Wal-Mart’s Chairman, to the cashiers whom Wal-Mart gracefully calls “sales associates.” These associates make up almost 1 percent of the U.S. workforce. In 1996, Wal-Mart had just allowed the Chase Bank to issue a MasterCard credit card cobranded with the Wal-Mart name. Wal-Mart had received a lot of money for allowing its name to be used by Chase and MasterCard in this way. It didn’t seem right to Wal-Mart to take that money and then quickly turn around and sue MasterCard on an unrelated antitrust claim, not without giving them the chance to do the right thing. Wal-Mart was sure that when MasterCard was asked politely by its