One of the lessons supposedly learned by big business in watching Microsoft get smacked around by government antitrust lawyers is to go easy on kill-’em-all rhetoric that could resurface later in court. Supposedly, savvy tech firms like Cisco have specifically advised managers against using certain words in memos and e-mail.
So, it was interesting to note that one of the opening salvos by defense lawyers in another antitrust case that’s now getting under way–the one the government has brought against credit-card companies MasterCard and Visa–involved bellicose rhetoric. Specifically, a video was presented in which the chief executive of Visa USA commented, “We are going to pound MasterCard into a rathole.”
The difference, of course, is that in this case the government is suggesting that the Visa and MasterCard competition is something of a sham, because of the way cards are issued through banks. And, in fact, the government apparently plans to present proof in the form of documents that will undermine the two companies claims of fierce competition.
Still, it’s an amusing turn of events and would seem to require an addendum to any rules about the public and private statements of companies regarding their competitors. Don’t get caught telling anyone you’re going to pound the competition into a rat hole, unless you get caught treating the competition like something other than the competition, in which case you’ll be expected to prove that you really do want to pound them into a rat hole, honest, you mean it this time. Maybe the lesson for businesses is that trying to pre-edit your communication for the ears of antitrust lawyers is a no-win proposition.
