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Friday, November 18, 2016


In August, the Supreme Court had agreed to consider the question raised by MasterCard and Visa of whether members of a business association can be in violation of antitrust law by agreeing to abide by that associations rules.  However, the ATM Industry Association (ATMIA) argued that the Petitioners’ Brief improperly expanded their argument to, in effect, seek immunity from Section 1 of the Sherman Antitrust Act.

The Court agreed and yesterday dismissed the case, even before oral arguments were heard.  Quoting from the court’s decision, “After [h]aving persuaded us to grant certiorari on this issue . . .  petitioners chose to rely on a different argument in their merits briefing . . . The Court, therefore, orders that the writs in these cases be dismissed as improvidently granted.”

The ATM Access Fee Rules at issue in this case, which the banks have all agreed to abide by and enforce, prohibit independent ATM operators from discounting the fees paid by consumers for ATM access through lower-cost networks that compete with the Visa and MasterCard ATM networks. Consumers are harmed by being forced to pay artificially high fees that cannot be priced as the market would otherwise allow, i.e., as they would be priced if the Access Fee Rules did not exist.

Antitrust attorneys for ATMIA filed an amicus brief in the Visa v Osborn case on Monday, October 17, 2016, highlighting the improper claims, competitive issues at stake and well-settled law.  It also requested that the Court reject the Petitioners’ attempt to immunize themselves from scrutiny under Section 1 of the Sherman Act.  Oral arguments were set for December 7th.

“This is a huge win for the ATM industry,” states David Tente, Executive Director for ATMIA USA.  ‘Yesterday’s decision clears the way for pending antitrust cases to continue, and leaves the door open for future claims that industry stakeholders may wish to pursue.”

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