U.S. District Court judge Amy Berman Jackson (Photo: Diego M. Radzinschi / NLJ)
ATM operators and consumers suing Visa Inc. and MasterCard Inc. over ATM fees are appealing a judge’s order dismissing the case.
The plaintiffs accused Visa and MasterCard of violating federal antitrust laws in how they set rules concerning access fees for use of the companies’ ATM networks. A Washington federal judge dismissed the case in February 2013. U.S. District Judge Amy Berman Jackson found the plaintiffs failed to sufficiently plead that they were harmed by Visa and MasterCard’s actions and didn’t present enough facts to support claims of an unlawful conspiracy.
In December, the judge rejected the plaintiffs’ efforts to amend their complaints, finding the revisions failed to address the standing problems she identified in her original ruling. The plaintiffs on Jan. 10 notified the court they were appealing the decision.
According to court documents, Visa and MasterCard set rules barring independent ATM operators from charging higher access fees for use of the two companies’ networks to process ATM transactions.
The plaintiffs claimed Visa and MasterCard were preventing ATM operators from steering consumers to less expensive networks and forcing consumers to pay inflated fees to cover the costs of using the more expensive Visa and MasterCard networks. They accused the two companies of being part of an anticompetitive conspiracy with various banks
The ATM operators and consumers filed separate lawsuits, which were consolidated by the court.
After Jackson granted the defendants’ motion to dismiss in February 2013, the plaintiffs amended their complaints to attempt to address the standing problems. In a Dec. 19 ruling, Jackson said the plaintiffs still lacked standing because they couldn’t show how they were harmed or how the court could solve the problem, given the involvement of other parties not named in the case.
“Although the new complaints do more clearly elucidate both the financial relationships at issue and plaintiffs’ theory of the case, the claims are still too conclusory and too dependent on a number of intervening actions by a series of third parties to state an injury in fact,” the judge wrote in her Dec. 19 opinion.
The amended complaints also failed to present enough facts alleging an agreement among Visa, MasterCard and banks, the judge said.
Arnold & Porter is representing Visa. Paul, Weiss, Rifkind, Wharton & Garrison is representing MasterCard. Although the cases were consolidated, the plaintiffs are being represented by different counsel. Jonathan Rubin of Rubin PLLC is lead counsel for the ATM operators; Hagens Berman Sobol Shapiro is lead counsel for one group of consumers; and Finkelstein Thompson is lead counsel for the other set of consumer plaintiffs.