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Thursday, August 3, 2023

ATM operators, card brands to face off in court

The National ATM Council Inc. and counsel MoginRubin LLP, a specialty antitrust law firm, disclosed that their lawsuit against Visa and Mastercard will move forward, following a July 25, 2023, decision by the U.S. Court of Appeals for the District of Columbia Circuit.

Brought by a nationwide class of independent retail ATM owners and operators, the long-standing court case, National ATM Council Inc., et al. v. Visa Inc., et al., No. 1:11-CV-01803-RJL, initially filed Oct. 12, 2011, addresses what Jonathan Rubin, a partner at MoginRubin, alleged are inequities in ATM access fee rules.

"The decision, from the D.C. Circuit Court of Appeals, was an affirmance of a decision in August 2021 by the district court in Washington, D.C. granting class certification to the independent ATM operators to pursue a case against Visa and Mastercard for anticompetitive rules relating to the setting of ATM surcharges," he said. "The rules prevent ATM operators from passing on the savings to cardholders when their ATM transactions are handled by an ATM network other than Visa or Mastercard."

Rubin additionally alleged that existing fee structures impede competition by allowing Visa and Mastercard to overcharge ATM operators for transaction fees. If the plaintiffs prevail, he added, the ATM operator class will ask the court to order defendants to eliminate the unlawful rule and award damages in the amount of the aggregate overcharge.

Twelve-year battle

Rubin went on to say that the court certified the independent ATM operator class and two other classes of cardholders claiming to have been overcharged as a result of existing rules and fee structures. The court found all three classes satisfied the requirement of class action rules that common questions must predominate over individual issues, he noted.

"In its analysis, the district court confirmed that each group of plaintiffs cleared those hurdles," Rubin said, adding that his firm has been prosecuting this case for years on behalf of independent ATM owners and operators.

Bruce Renard, executive director of the National ATM Council, stated that NAC is pleased by recent developments in the longstanding antitrust case. 

"The federal appellate panel affirmed the trial court's ruling granting class certification to the ATM operator class in an unpublished 'per curium' opinion and accompanying memorandum," he said, noting that the court's ruling remains subject to motions for rehearing and/or rehearing en banc by VISA/Mastercard before becoming truly final.

Renard also mentioned that the same appellate court has repeatedly denied appeals by Visa and Mastercard to challenge the case and thanked Rubin and the litigation team for their persistence, determination and expertise in leading a series of legal victories for more than a decade. "It is these efforts over the past dozen or so years on our industry's behalf by Jon and his team that have time and again reaffirmed the meritorious nature of our case," he said.

NAC Board Chair George Sarantopoulos, CEO of Access One ATM, concurred, stating NAC and the ATM operator class look forward to finally going to trial.

"While this is the result we expected from the beginning, we are glad the judges understood the global networks' appeal was without merit," he said. "This is a terrific result in a case that has unfortunately dragged on far too long. Finally, the door to the courthouse is being opened and we are about to have our day in court." end of article

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