Visa, Mastercard ATM Fee Class Action is ‘Questionable,’ Court Says

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Visa, Mastercard ATM Fee Class Action Lawsuit Overview: 

• Who: In three consolidated antitrust matters, plaintiffs filed a class action lawsuit against Visa and Mastercard.
• Why: Consumers and ATM operators allege that Visa and Mastercard set fees that broke antitrust laws.
• Where: The class action lawsuit was filed in California federal court. 

The D.C. District Court permitted Visa and Mastercard to file an appeal of the district court’s class certification orders in three consolidated antitrust cases because the companies have shown that the district court’s class certification decision was, at least, “questionable” and is accompanied by a potential “death-knell.” 

The ruling is in response to Visa and Mastercard’s Sept. 17 petition for interlocutory review.

The credit card companies said U.S. District Judge Richard J. Leon issued a flawed decision as he failed to examine the unidentified class members before certifying them. The judge certified one class of ATM operators that includes thousands of businesses and two consumer classes that include millions of people. The classes all alleged they were unlawfully overcharged for access fees at ATM terminals.

In rejecting the credit card giants’ arguments against certification, including that the plaintiffs cannot prove they have been injured, Judge Leon said the challengers only need to show how they intend to show classwide impact at the class certification stage and have met their burden by demonstrating how they will prove the anti-competitive impact of the defendants’ alleged misconduct reasonably. 

However, the credit card companies claim Judge Leon must determine the presence of uninjured class members when ruling on Federal Rule of Civil Procedure 23‘s predominance requirement. The rule’s requirement “cannot be met (and a class cannot be certified) if the proposed class includes a significant number of uninjured members,” the companies said. 

To meet the predominance requirement, the plaintiffs must demonstrate at the class certification stage they can prove, through common evidence, that all or nearly all members of each putative class were injured by the alleged illegal conduct, the companies continued.

“Certifying a class notwithstanding evidence of uninjured class members was manifestly erroneous,particularly where the evidence was not scrutinized prior to certification. The issue of uninjured class members cannot be deferred until the merits stage of the case,” the companies said.

Class Action Claims Visa and Mastercard Unlawfully Overcharged ATM Access Fees 

The consumers and operators have alleged since the start that the ATM surcharges they were forced to pay by Visa and Mastercard were set above market rate due to the companies interference.

However, the banks have argued that they do set the surcharge rates, the ATM operators do. The companies said that neither the consumers or operators can prove any damage came from the banks’ rates, adding “none of the plaintiff groups can prove class-wide injury with common evidence.”

Do you use your Visa or Mastercard card in ATMs? Tell us what you think of the surcharge costs in the comments section!

The ATM operators are represented by Jonathan Rubin, Daniel Mogin and Jennifer Oliver of MoginRubin LLP and Don A. Resnikoff of the Law Offices of Don Resnikoff. The consumers are represented by Douglas G. Thompson of Finkelstein Thompson LLP; Christopher Lovell, Gary S. Jacobson and Merrick Scott Rayle of Lovell Stewart Halebian Jacobson LLP; Steve W. Berman, Ben Harrington and Ben Siegel of Hagens Berman Sobol Shapiro LLP; and Stephen Neuwirth, Adam Wolfson, Viola Trebicka and Michael Bonanno of Quinn Emanuel Urquhart & Sullivan LLP.

The Visa, Mastercard ATM Fee Class Action Lawsuit is Visa Inc. et al., Case No. 21-8009, in the U.S. Court of Appeals for the Districtof Columbia Circuit.

Read About More Class Action Lawsuits & Class Action Settlements:

• Class Certification Given For MDL over Visa, Mastercard Transaction Fee Allegations
• Consumers, ATM Operators Have Class Action Against Visa, MasterCard Certified by Federal Judge
• Bank of America Fees Assessed Illegally, Claims Class Action Lawsuit
• Wells Fargo Agrees to $28M Settlement Over Call Recordings