DC Circuit Revives Visa, MasterCard ATM Fees Antitrust Class Action

An appellate court has revived a class action lawsuit filed against Visa, MasterCard, Bank of America, JP Morgan Chase, and Wells Fargo, alleging that they broke federal antitrust laws by fixing ATM fees.

The decision by the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) brings back three class action lawsuits into play — two filed by consumers and one that was filed by independent ATM operators.

The ATM fee class action lawsuits were previously dismissed by the federal court in the District of Columbia in February 2013. The D.C. Circuit is sending the class action lawsuits back to the federal court.

The appellate court said that it disagreed with the federal court’s decision to not allow the plaintiffs to file amended class action lawsuits. According to the D.C. Circuit, the plaintiffs did have sufficient standing to do so, and they also claimed that there was an agreement in restraint of trade under the Sherman Antitrust Act.

As for the ATM operators, who had also brought a class action lawsuit over the alleged fixing of ATM fees, they had also made a sufficient case for how they believed that they were injured by the practice because they weren’t able to charge lower fees, which may have led a customer to use an ATM card with lower costs, the D.C. Circuit said.

By setting ATM fees, Visa and MasterCard were kept from facing competition from other networks, while at the same time making consumers pay inflated ATM fees, the appellate court explained.

The theories offered by the plaintiffs deserve their day in court and deserved to be tested in a trial because they “allege a system in which Visa and MasterCard insulate their networks from price competition from other networks [which] yields higher profits for Visa and MasterCard… at the cost of consumers and independent ATM operators,” the judges wrote.

In addition, the D.C. Circuit also said that the plaintiffs made a valid case when they alleged that the banks had created an agreement that was anti-competitive, according to the Sherman Antitrust Act, and that the banks were still supposedly following the same practice because the banks involved were benefiting from the agreement.

Attorney Steve Berman of Hagens Berman, who is one of the attorneys representing the plaintiffs and argued the appeal before the court, said that “This is a big win for consumers, who now can seek not only damages caused by the Defendants but can now also pursue an injunction that will spark competition in the ATM market. The decision today affirms that our claims should be heard on their merits.”

The ATM fee class action lawsuit wants the federal court to ban Visa and MasterCard from keeping the current fee restrictions on ATMs as well as damages because of the higher fees that ATM users had to pay.

The plaintiffs are represented by Steve W. Berman, Anthony D. Shapiro, George W. Sampson of Hagens Berman Sobol Shapiro LLP, by Bernard Persky, Hollis Salzman, Kellie Lerner and William V. Reiss of Labaton Sucharow LLP, by Craig Briskin of Mehri & Skalet, PLLC, by John W. Kern, by J. Barton Gopelrud of Hudson Mallaney, Shindler & Anderson, PC, and by Stuart M. Paynter of The Payneter Law Firm PLLC.

There is no attorney information available for the defendants at this time.

The Visa Mastercard ATM Fee Class Action Lawsuit is Andrew Mackmin et al. v. VISA Inc. et al, Case No. 11-cv-1831, filed in the U.S. District Court for the District of Columbia.