Zoe Tillman reports for American Lawyer affiliates The National Law Journal and Legal Times.
A Washington federal judge handed a win Wednesday to Visa Inc. and MasterCard Inc., dismissing a set of lawsuits that accused the two credit card companies of violating federal antitrust laws in how they set ATM fees.
U.S. District Judge Amy Berman Jackson found that the plaintiffs–ATM operators and consumers who used ATMs–failed to make sufficient claims that they were harmed by how Visa and MasterCard managed ATM fees, and also didn’t present enough facts to support a claim that the companies were part of an anticompetitive conspiracy with banks.
A lead attorney for the ATM operators, Washington solo practitioner Jonathan Rubin, said today that his clients are planning to file an amended complaint that would address Jackson’s problems with the original case. "This is basically an economic issue that we intend to lay out in greater detail for the court," he said. A lead attorney for ATM users, George Sampson of Hagens Berman Sobol Shapiro, said in an e-mail that his team also believed they could amend the complaint to address the court’s concerns.
A spokesman for MasterCard, which was represented by Paul, Weiss, Rifkind, Wharton & Garrison, said the company was pleased with the decision. (The Paul Weiss team defending MasterCard includes partner Kenneth Gallo and counsel Gary Carney.) A Visa spokesperson and the company’s attorneys at Arnold & Porter, led by partner Mark Merley, could not immediately be reached for comment.
The ATM operators and users lodged separate complaints, but their core claim was the same: that Visa and MasterCard agreed to restrict how operators could charge ATM fees in a way that prevented competition. According to the complaints, ATM operators who used Visa and MasterCard ATM networks couldn’t charge access fees that were higher than the lowest access fees charged for transactions on other networks.
Visa and MasterCard argued that their fee policies kept access fees low across the board. But as Jackson noted in her opinion, the plaintiffs claimed that the policy meant they couldn’t discount fees for transactions on other networks and, as a result, stopped any competition with Visa or MasterCard.
Jackson found that the plaintiffs didn’t present enough detailed information to prove they were injured. "The complaints do not specify what market is being restrained, how it is supposed to work, how it was adversely affected, and how that circumstance injured the plaintiffs," he wrote.
Finally, Jackson found that the plaintiffs failed to present facts to back up their claim that agreements between banks and Visa and MasterCard related to ATM fees represented a horizontal conspiracy.
"At most, plaintiffs allege that ATM operators–both banks and independent operators–make independent business decisions whether to participate in the Visa and MasterCard networks," she wrote. "A statement of parallel conduct alone, without factual allegations to plausibly suggest an illegal agreement, is not enough."