UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
VISA U.S.A. INC.,
VISA INTERNATIONAL CORP.,AND
| Civil Action No. 98-7076 (BSJ)
DECLARATION OF JOEL I. KLEIN
I, Joel I. Klein, hereby declare the following to be true and correct, based on my personal
knowledge, unless otherwise indicated:
- I am the Assistant Attorney General for the Antitrust Division
of the United States Department of Justice. I was nominated for that
position by President Clinton and have held that appointment since
July 17, 1997, when my nomination was confirmed by the United States
Senate. Prior to that time, I was Principal Deputy Assistant Attorney
General under Anne K. Bingaman and became Acting Assistant Attorney
General in October 1996.
- As Assistant Attorney General for the Antitrust Division, I oversee
and direct the Antitrust Division, which is the division within the
Department of Justice responsible for enforcing the federal antitrust
laws. The Antitrust Division enforces these laws through both civil
and criminal proceedings.
- As Assistant Attorney General, I have been delegated the responsibility
by the Attorney General to determine whether to bring antitrust actions
on behalf of the United States of America, see 28 C.F.R.
§ 0.40. Moreover, I have been specifically delegated authority
to assert applicable privileges in antitrust litigation by the Deputy
Attorney General, who is authorized pursuant to Department of Justice
regulations, see 28 C.F.R. §§ 16.21 et seq.,
to determine whether Department of Justice information will be withheld
in response to subpoenas and other demands. The delegation provides
that any assertion of privilege be in accordance with the guidelines
established in 28 C.F.R. § 16.26.
- Through the exercise of my official duties, I have become familiar
with the Motion to Compel filed by Visa U.S.A., Inc. ("Visa"), whereby
Visa seeks to compel the Division to produce documents relating to,
inter alia, pre-complaint economic analyses prepared for
the Antitrust Division concerning defendants' practices. The Antitrust
Division has conducted a search of its files and has located documents
that fall within that category (hereinafter "Economic Memoranda").
The Economic Memoranda are described in the Schedule attached to this
- The purpose of this declaration is to invoke the deliberative process
privilege with respect to these Economic Memoranda on behalf of the
Antitrust Division of the Department of Justice, for the reasons explained
below and in the Memorandum in Opposition which will be filed and
served with this declaration.
- I have personally reviewed the Economic Memoranda, the attached
Schedule, and the Declarations of M.J. Moltenbrey and George Rozanski,
which will be filed and served with my declaration. In my position
as Assistant Attorney General, as well in other government positions,
I have had occasion to become quite familiar with the legal standards
for claims of deliberative process privilege and have successfully
asserted such claims on behalf of the Antitrust Division. Based on
that knowledge and experience and my review of the Economic Memoranda,
I have determined that these documents should be withheld under a
claim of deliberative process privilege.
- The Economic Memoranda were prepared by staff economists and officials
of the Economic Analysis Group ("EAG"). One of the primary functions
of EAG, a section of the Antitrust Division, is to analyze economic
issues relating to conduct that the Antitrust Division has under investigation.
I, and other attorneys within the Antitrust Division, rely extensively
in virtually every civil investigation and prosecution on the professional
expertise and capabilities of EAG economists. As standard practice,
Antitrust Division economists work closely with staff attorneys throughout
the entire investigation process and provide their opinions, thoughts,
analyses, recommendations and conclusions. I personally rely on their
input and counsel in my deliberations leading to my decisions as to
whether or not to bring an action against particular parties.
- The Economic Memoranda at issue relate to the deliberative process
that resulted in my decision to file the Complaint in this case. The
Economic Memoranda contain analyses of and recommendations by the
Antitrust Division economists to their superiors (including myself)
of the conduct under investigation. These documents reflect not only
the analyses and opinions of EAG economists but also the thoughts
and analyses of Antitrust Division attorneys working on this investigation.
- To the extent there is factual material contained in these documents,
the facts were deliberately selected for review by Antitrust Division
attorneys and economists in the formulation of their recommendations
to me. Moreover, in some instances, the documents were sent to and
reviewed directly by me. The facts contained in these documents were
selected by staff from a great volume of potentially relevant facts;
that selection process itself reflects the thought processes of Antitrust
Division staff and officials as to the types of facts relevant to
possible prosecutorial decisions and antitrust enforcement policy.
Moreover, the facts are inextricably intertwined with the authors'
analyses and recommendations.
- One of the primary responsibilities of the Antitrust Division is
to detect and prosecute violations of the federal antitrust laws.
Effective discharge of that responsibility depends upon formulation
and implementation of sound decisions. In order to ensure effective
and sound decision-making, the staff and officials of the Antitrust
Division must remain free to engage in a candid exchange of views
concerning proposed enforcement actions. Such exchanges would be severely
curtailed if their contents were subject to public scrutiny during
the deliberative process or thereafter. I have no doubt that candid
exchanges regarding the pros and cons of any investigation would be
severely chilled by the threat of disclosure of such thoughts to the
very entities being investigated.
- The Economic Memoranda unquestionably reflect the deliberative
process of the Antitrust Division which formed part of the analysis
leading to my decision to file this action. I have determined that
disclosure of the advice, opinion, facts, and recommendations contained
in those documents would inhibit the frank exchange of information
and ideas among Antitrust Division officials and staff in the course
of their predecisional deliberations concerning enforcement and policy
decisions, which is absolutely essential to the performance of my
responsibilities and those of the Antitrust Division as a whole. For
these reasons, I claim the deliberative process privilege for the
Economic Memoranda on behalf of the Antitrust Division of the Department
of Justice and I urge the Court to deny Visa's motion and reject the
very serious threat it poses to the work of the Division -- and the
Government as a whole.
I declare under the penalty of perjury that the foregoing is true and correct.
Executed on January 13, 1999, in the District of Columbia.
Joel I. Klein
Assistant Attorney General
United States Department of Justice