WASHINGTON, Oct. 17, 2016 / Rubin PLLC / -- The National ATM Council, Inc. and 13 independent ATM operators represented by Rubin PLLC urged the Supreme Court today to uphold the August, 2015 reinstatement of thier antitrust action agains Visa and MasterCard by the D.C. Circuit court. The district court had dismissed the case on the grounds that the complaints failed to allege a contract in restraint of trade or that they were legally injured, and the circuit court reversed. Visa, MasterCard, and certain of their member banks petitioned the Supreme Court to overturn the decision, and the high Court accepted the case in June of this year.
In today's brief on the merits (available for download, below), the ATM operators urge the Court to either dismiss Visa and MasterCard's petition or affirm the D.C. Circuit's decision reinstating the case. Dismissal is appropriate, the ATM operators argue, because the defendants petitioned the Court to decide whether the complaints adequately alleged an anticompetitive agreement. However, in their briefs on the merits, Visa and MasterCard ask the Court to limit the applicability of Section 1 of the Sherman Act, so that agreements reached in the context of a colloboration or trade association such as Visa or MasterCard would not be covered.
The ATM Operators, represented by Rubin PLLC, the Mogin Law Firm P.C., and Supreme Court specialist, Tom Goldstein, of Goldstein and Russell, P.C., point out that defendants' position would up-end decades of clear antitrust law governing what competitors can and cannot do in the context of a trade association. Oral arguments are expected to be held in December, 2016.
The case is Visa Inc., et al. v. Sam Osborn, et. al, Supreme Court Nos. 15-961 and 15-962.
WASHINGTON, Aug. 4, 2015 /PRNewswire/ -- The District of Columbia Circuit Court of Appeals today reinstated a proposed antitrust class action lawsuit brought against Visa and MasterCard by the National ATM Council ("NAC") for imposing unlawful and restrictive rules that limit discounting of the access fees that ATM operators charge consumers.
The lawsuit, initially filed in 2011 the U.S. District Court for the District of Columbia by the National ATM Council, several independent operators of automated teller machines, and two groups of consumers, alleged that Visa and MasterCard's network rules unlawfully prohibited ATM operators from offering lower prices for transactions over PIN-debit networks that are not affiliated with Visa or MasterCard. The suit alleged that the defendants' network rules amounted to price fixing that artificially raised the price that consumers pay for ATM services, limited the revenue that ATM-operators can earn, and violated the Sherman Act's prohibition against unreasonable restraints of trade.
In reversing the District Court's 2013 dismissal of the case, the D.C. appellate Court ruled that "the district court was demanding proof of an economic theory that was not required in a complaint." It was enough, the Court said, that the Visa and MasterCard "member banks used the bank associations to adopt and enforce a supracompetitive pricing regime for ATM access fees," rendering the networks more costly for ATM operators and consumers to use.
"We are gratified that the appellate court recognized the unlawfulness of the restrictions on ATM pricing that have for years allowed Visa and MasterCard to prevent ATM operators from charging consumers less for using lower-cost non-Visa or non-MasterCard services," said Jonathan Rubin, managing member of Washington, D.C.-based antitrust law firm Rubin PLLC, lead counsel for the NAC and the independent ATM operators. "The anticompetitive rules have protected Visa and MasterCard from competition for network services with the result that consumers have been paying inflated prices for using ATMs and fewer ATMs were deployed that otherwise would have been the case," Rubin said. There are about 425,000 ATMs are in service across the nation, of which about half are operated by independent ATM operators.
The lawsuit seeks damages against Visa and MasterCard for violating the antitrust laws and asks the court to enjoin Visa and MasterCard from continuing to restrict how operators charge ATM access fees in the future.
Also representing the NAC plaintiffs are Brooks E. Harlow and David A. LaFuria of Lukas, Nace, Gutierrez & Sachs, LLP, McLean, VA. Attorney Don A. Resnikoff is consulting counsel to Rubin PLLC.
The appellate case name is Sam Osborn, et al. v. Visa, Inc., et al. No. 14-7004 (C.A.D.C., filed August 4, 2015)
On February 20, 2015, at 9:30 am, the court will hear the appeal of the D.C. district court's dismissal of an antitrust suit against Visa, Mastercard, and others challenging a bankcard association rule that fixes ATM access fees. The panel will be Judges Tatel, Srinivasan, and Wilkins. Antitrust Attorney Jonathan Rubin serves as lead counsel for the National ATM Operators Association and several of their members, the initial plaintiffs who initiated the case, which was filed in the District of Columbia District Court in 2011.
The Federal Communications Bar Association Mobile Payments Committee held a brown bag luncheon on Tuesday, January 27 at the Harris, Wiltshire & Grannis LLP law firm, where the topic was "What’s next, Mobile Wallet Neutrality or Wallet Wars? The discussion focused on competition for retailers and gaining access to the point of sale and related public policy issues. What are the implications under competition law of recent announcements of exclusivity and the high-profile retailer rejections of competing applications? Will the class action firms or regulators jump into the fray? Would Title II regulation of the Internet make a difference? What’s a modern consumer to do?
The speakers were Michael Weinberg, Vice President, Public Knowledge; Jonathan Rubin, Antitrust Attorney/Economist; and Kevin Petrasic, of Paul Hastings. The moderator was Brooks Harlow, Lukas, Nace, Gutierrez & Sachs, LLP
September 10, 2013 - "Antitrust Issues in the Mobile Payments Ecosphere" was the title of an address by Jonathan Rubin, managing member of Rubin PLLC, to the LSI Conference on Mobile Payments held recently in Washington, D.C.
"Mobile payments presents a great commercial opportunity for enhancements to the consumer-payee relationship bundled with payment," said Rubin. "Marketing in this context means best fulfilling the simultaneous needs of both sides of the market," the consumer and the payee. The winner in the mobile payment space will be the firm that optimally exploits the relationship.
The dispute last year between Verizon and Google regarding access by the Google Wallet app to the secure element and near field communications chip in Verizon's Samsung Galaxys was "not ripe, when no one can be sure what the technology will even be, whether NFC or QR or something else." Verizon, a founding member of ISIS along with AT&T and T-Mobile, is unlikely to find technological tie-out a viable, long-term strategy, Rubin said.
Rubin said "If and when antitrust problems arise they are likely to be in the form of parallel exclusion: incumbent gatekeepers will attempt to forestall the arrival of a competitive, two-sided market for payment relationships."
The slide presentation can be download from the link below, "Rubin Mobile Payments Presentation.pdf"
WASHINGTON D.C. – The National Cable Satellite Corporation, owner of C-SPAN, the Cable-Satellite Public Affairs Network, is the target of an antitrust lawsuit filed today by Sky Angel U.S., LLC, the Naples, Florida-based operator of the multichannel internet-cable TV service, FAVE-TVsm.
The lawsuit, filed in the U.S. District Court for the District of Columbia, claims that C-SPAN violated the antitrust laws when it withdrew its programming from Sky Angel in 2009 after appearing on Sky Angel’s line up for only a few days. C-SPAN covers the proceedings of the U.S. Congress and carries other public affairs programming. The non-profit National Cable Satellite Corporation is owned and operated by the U.S. cable industry.
The suit alleges that although C-SPAN produces public interest programming, “it ceased to act as a legitimate collaboration among competitors when it withheld C-SPAN’s programming from Sky Angel for anticompetitive purposes.” The complaint alleges that C-SPAN “harmed competition in the relevant market by depriving Sky Angel of C-SPAN’s highly valued, one-of-a-kind programming, which Sky Angel needs in order effectively to compete ….” The complaint notes that all of Sky Angel’s competitors carry C-SPAN.
Jonathan Rubin, of Washington, D.C.-based Rubin PLLC, an antitrust law firm representing Sky Angel, said, “Competitors can act in concert if they have a legitimate reason. But, agreeing to withhold programming in order to stifle a new entrant into the marketplace is not a legitimate reason.”
The suit claims that C-SPAN’s Board of Directors, composed of executives from the top ten cable companies, “who authorized C-SPAN to withhold its programming from Sky Angel, hijacked the public service mission of C-SPAN’s legitimate competitor collaboration and repurposed C-SPAN as an instrument to boycott, exclude, injure and destroy Sky Angel.”
“It makes no economic sense to forego subscription fees for no legitimate business reason,” Rubin said. “That’s a classic indicator of anticompetitive intent.”
The FCC normally handles program access disputes between cable TV companies and programmers affiliated with other cable or satellite providers, but has declined to exert its authority over Sky Angel, the suit says.
The lawsuit seeks damages against C-SPAN for violating the antitrust laws and an injunction that would require C-SPAN to honor the terms of its contract with Sky Angel for ten years.
The case name is Sky Angel U.S., LLC v. National Cable Satellite Corp., No. 1:12-cv-01834 (D.D.C., filed November 13, 2012).
About Rubin PLLC
Rubin PLLC is a Washington, D.C.-based antitrust law and competition policy law firm of Jonathan L. Rubin, a trial attorney, economist, and internationally recognized expert in antitrust law. With support from a trusted network of corresponding affiliates, Rubin PLLC serves consumers and businesses in all aspects of U.S. competition law and policy. Learn more at RubinPLLC.com.
About Sky Angel U.S., LLCSky Angel provides an affordable, nationwide, subscription-based service of exclusively family-friendly real-time video and audio programming, including many of the nation’s most popular non-broadcast networks. Sky Angel offers faith-based programming and FAVE-TVsm. The Sky Angel system utilizes satellite uplinks and downlinks, fiber it controls, and subscribers’ broadband Internet connections to aggregate and distribute multiple channels of video programming to proprietary set-top boxes which decrypt the programming and deliver it directly to subscribers’ television sets. Learn more at SkyAngel.com and FAVETV.com.
Experian, the national consumer credit data repository, and CoreLogic, Inc., the nation's largest credit report reseller, were named in a suit filed today in the U.S. District Court for the Southern District of Florida for alleged violations of the antitrust laws.
The suit, filed by a Florida-based mortgage credit reporting agency, claims that Experian and CoreLogic sought to deny smaller credit agencies access to Experian's mortgage credit information for "tri-merged" mortgage credit reports. Banks and investors require tri-merged reports to extend credit for home mortgages. The complaint seeks damages and injunctive relief.
According to the suit, Experian and CoreLogic were partners in the Credco mortgage credit reporting business in early 2008 when Experian "agreed to eliminate up to 87% of CoreLogic's rivals" in exchange for CoreLogic's help to "maintain Experian's monopoly in mortgage credit information ..." The suit claims that the number of qualified mortgage credit reporting agencies has declined nationwide from over 1,500 at the beginning of the century to fewer than 100 today.
Jonathan Rubin of Washington, D.C.-based Rubin PLLC who represents the plaintiff said, "Independent credit reporting agencies like my client can no longer compete, not because they are not efficient, but because Experian and CoreLogic conspired to drive them out of the market. This is an astonishing violation of the antitrust laws."
The plaintiff, Credit Bureau Services, Inc. of Oakland Park, Florida, has also asked the court to certify the case as a class action on behalf of "all mortgage credit report resellers separated from Experian" as a result of the violation.
The case is Credit Bureau Services, Inc. v. Experian Information Solutions, Inc., et al., No. 12-cv-61360-RSR (S.D.Fla., filed July 10, 2012). The complaint is available at the link below.
About Rubin PLLC
Rubin PLLC is a Washington, D.C.-based antitrust and competition law firm founded in January 2011. With a trusted network of corresponding affiliates, Rubin PLLC serves consumers and businesses in all aspects of U.S. competition law and policy. Learn more at www.RubinPLLC.com.
May 23, 2012 - Washington, D.C. A group of leading economics professors specializing in antitrust and innovation filed a friend of the court brief today to urge the U.S. Supreme Court to accept the case of SigmaPharm, Inc. v. Mutual Pharmaceutical Co., Inc. et al.: No. 11-1275 on certiorari to the Third Circuit. The economists were represented by RUBIN PLLC managing member, Jonathan L. Rubin, and Gene Crew, of Kilpatrick Townsend & Stockton LLP of San Francisco. The economists were: David B. Audretsch of Indiana University, Wesley M. Cohen of the Fuqua School at Duke, Robert M. Feinberg of American University, Albert N. Link of the University of North Carolina at Greensboro, Stephen Martin of Purdue University, F. M. Scherer of Harvard, John T. Scott of Dartmouth, and Donald S. Seigel of the State University of New York at Albany.
The issue presented by the petition for certorari is whether an innovator that suffers injury to its business or property in the form of lost revenue as a consequence of an anticompetitive agreement between the innovator's marketing partner and a market incumbent to suppress the innovation from the market suffers "antitrust injury." The plaintiff, SigmaPharm, an R & D innovator, had a manufacturing and distribution agreement with Mutual to develop and market new pharmaceuticals. SigmaPharm developed a competing version of the widely used muscle relaxant, Skelaxin, a branded drug sold by the market incumbent, King. Mutual and King agreed to suppress the competing drug in connection with the settlement of existing patent litigation and SigmaPharm sued under Sections 1 and 2 of the Sherman Act.
The Third Circuit, reviewing the District Court's dismissal of the complaint, affirmed on the grounds that SigmaPharm lacked standing because it did not suffer antitrust injury, that is, "injury of the type the antitrust laws were intended to prevent," the test announced in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1976). Holding that such injury is customarily confined to consumers of competitors, and that SigmaPharm was neither, the court found it lacked antitrust injury and, thus, standing to bring the case.
In their brief in support of SigmaPharm's petition for certiorari the economists argued that innovation and dynamic competition stand on equal footing with static competition. Thus protection of innovation is a core antitrust value. In this case the innovation would also have brought prices down by introducing competition into the market. Moreover, the division of labor represented in development agreements between innovators and marketing and manufacturing firms are essential to the competitive process. Disallowing antitrust standing to an innovator when its innovation has been suppressed denies antitrust relief when it is most needed. In addition, the innovator has been directly harmed from the suppression of the invention and is in no danger of enjoying protection from competition if it is granted the antitrust relief it seeks. Finally, neither competitors nor consumers are likely to sue as a consequence of the suppression because of legal and practical obstacles. Denying antitrust standing to SigmaPharm undermines the proper functioning of the antitrust laws as our charter of our economic freedom.
A copy of the brief may be downloaded by following the link below.
On April 13, 2012, RUBIN PLLC managing member, Jonathan L. Rubin, served as a member of the faculty for the Seventeenth Annual Conference On Telecommunications Law presented by Law Seminars International (LSI) in Seattle, WA. The annual conference covers key developments in regulatory, policy, technology and case law in the telecommunications sector. Other faculty members included Blair Levin of the Aspen Institute and Jane Mago, General Counsel of the NAB. Rubin’s presentation, entitled “AT&T/T-Mobile Merger: Where it Leaves Other Carriers and the Implications for the Industry,” discussed the DOJ Staff Report criticizing the deal and the D.C. District Court’s decision not to dismiss the civil antitrust suit brought by AT&T’ rivals, Sprint and C-Spire. The program brochure may be downloaded by following the link below.
Visa and MasterCard are the targets of a proposed national class action lawsuit filed on behalf of independent ATM operators claiming that the card issuers’ rules fix the price of ATM access fees, a restraint of trade the suit claims violates the antitrust laws.
The lawsuit, filed in the U.S. District Court for the District of Columbia by the National ATM Council and several independent operators of automated teller machines, alleges that Visa and MasterCard’s network rules prohibit ATM operators from offering lower prices for transactions over PIN-debit networks that are not affiliated with Visa or MasterCard. The suit alleges that the price fixing artificially raises the price that consumers pay for ATM services, limits the revenue that ATM-operators can earn, and violates the Sherman Act’s prohibition against unreasonable restraints of trade.
According to the suit, ATM operators may charge an access fee to cardholders at the point of the transaction, but only if the fee is the same whether the machine is performing a Visa or MasterCard transaction or a transaction using another PIN-debit network. Visa and MasterCard networks can be more costly for operators to use, but the rules prevent an operator from offering consumers a discount for ATM transactions not completed over Visa or MasterCard’s networks.
“Visa and MasterCard are the ringleaders, organizers, and enforcers of a conspiracy among U.S. banks to fix the price of ATM access fees in order to keep the competition at bay,” said Jonathan Rubin, managing member of Washington, D.C.-based Rubin PLLC, an antitrust law firm representing the plaintiffs in the suit. “Were it not for these anticompetitive rules, Visa and MasterCard would face real competition for ATM services, consumers would pay lower prices for using ATMs, and more ATMs would be deployed,” Rubin said. About 400,000 ATMs are in service across the nation, of which about half are operated by independent ATM operators who comprise the proposed class, the suit says.
The lawsuit seeks damages against Visa and MasterCard for violating the antitrust laws. Plaintiffs’ attorneys have asked the court to certify the case as a class action on behalf of all independent ATM operators and to declare Visa and MasterCard’s restraints on ATM access fees unlawful. The attorneys also ask the court to enjoin Visa and MasterCard from restricting how operators charge ATM access fees in the future.
Also representing the plaintiffs are Brooks E. Harlow and David A. LaFuria of Lukas, Nace, Gutierrez & Sachs, LLP, McLean, VA. Attorney Don A. Resnikoff is consulting counsel to Rubin PLLC.
The National ATM Council (NAC), a trade association, is a plaintiff in the case seeking an injunction against Visa and MasterCard on behalf of its membership, which includes the operators of a majority of the independent ATMs in the country. The NAC was formed in 2011 by the consolidation of the National Association of ATM ISOs and Operators (NAAIO) and the Alliance of Specialized Communications Providers (ASCP).
Several independent ATM operators, also plaintiffs in the suit, seek damages and an injunction and to be appointed by the court as representative plaintiffs on behalf of the proposed class.
The case name is National ATM Council, Inc. et al. v. Visa, Inc., et al., No. 11-cv-1803-ABJ (D.D.C., filed October 12, 2011).