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Court Revives Antitrust Suit Against MasterCard, Visa, Three Banks

Financial Services Blog

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August 10, 2015

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A federal appeals court has revived a lawsuit accusing MasterCard, Visa and three major banks of illegally fixing ATM prices to the detriment of consumers. A federal district judge had thrown out the lawsuit in 2013 after finding the plaintiffs failed to show any conspiracy to overcharge consumers.

On Tuesday, the federal appeals court in Washington ruled that a group of consumers and independent ATM operators could pursue antitrust claims against the defendants. Specifically, the plaintiffs will be permitted to argue that the payment processors coordinated with Bank of America Corp., JPMorgan Chase & Co. and Wells Fargo & Co. to adopt anticompetitive fees.

The lawsuit claims the companies collusively impose contract terms preventing independent ATM operators from charging less when consumers use debit cards that can tap cheaper processing networks. The now revived lawsuit would likely still be hindered by an absence of direct evidence of coordination, but it is worth noting that general “anti-steering” prohibitions in American Express’ contracts with merchants—another instance of an antitrust case based on alleged restrictions on consumers’ ability to reap the benefits of less expensive payment networks—led to a courtroom victory for a governmental plaintiff, the Department of Justice, against AmEx earlier this year.

In short, the tension between financial service providers’ right to negotiate with other businesses for beneficial contract terms and consumers’ desires for pathways to lower expenses continues to give rise to high-profile litigation in 2015.

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Philip R. Stein

Philip R. Stein

Partner, Litigation Practice Group Leader
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