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From Antitrust Law Daily, November 17, 2016

ATM fee price fixing case removed from High Court’s docket

By Jeffrey May, J.D.

After initially granting petitions for certiorari, the U.S. Supreme Court has decided not review a decision of the U.S. Court of Appeals in Washington, D.C., which revived price fixing claims against Visa, MasterCard, and affiliated banks by automatic teller machine (ATM) operators, as well as consumers who purportedly paid excessive fees when using these machines. The Court today ordered that the writs in these cases be dismissed as improvidently granted (Visa Inc. v. Osborn, Dkt. 15-961and Visa Inc. v. Stoumbos, Dkt. 15-962).

In an order issued today, the High Court explained that the petitioners chose to rely on a different argument in their merits briefing than that which was raised as the question presented. According to the Court, it agreed to determine "[w]hether allegations that members of a business association agreed to adhere to the association’s rules and possess governance rights in the association, without more, are sufficient to plead the element of conspiracy in violation of Section 1 of the Sherman Act . . . ."

Oral argument had been set for December 7. In a brief filed last month, the government argued that the High Court should affirm the judgment by the U.S. Court of Appeals in Washington, D.C. According to the government, the plaintiffs adequately alleged that the networks’ access rules were concerted action subject to Section 1 of the Sherman Act.

The American Antitrust Institute (AAI) had also urged the Court to reject a legal theory proposed by Visa and MasterCard that theory would immunize broad areas of anticompetitive conduct by joint ventures and trade groups.

In August 2015, the appellate court vacated the district court’s dismissal of the suits, holding that the plaintiffs established Article III standing by plausibly pleading that the access rules lead to inflated ATM access fees and network services fees.

The question presented by the petitioners, in both the Osborn and Stoumbos petitions, was whether allegations that members of a business association agreed to adhere to the association’s rules and possess governance rights in the association, without more, are sufficient to plead the element of conspiracy in violation of Section 1 of the Sherman Act, as the Court of Appeals held below, or were insufficient, as the Third, Fourth, and Ninth Circuits had held.

Attorneys: Boris Bershteyn (Skadden Arps Slate Meagher & Flom LLP) and Anthony J. Franze (Arnold & Porter LLP) for Petitioners. Steve W. Berman (Hagens Berman Sobol Shapiro LLP) for Respondents.

Companies: Visa Inc.; MasterCard Inc.

MainStory: TopStory Antitrust

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