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).
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