Visa, Mastercard Lose High Court Bid to Review ATM Pricing Case

The US Supreme Court on Monday denied a request to review class certification in a case accusing Visa Inc. and Mastercard Inc. of fixing the price of fees charged at automated teller machines.

Visa and Mastercard asked the Supreme Court in January to review a decision by the US Court of Appeals for the District of Columbia Circuit that sided with a district court in granting certification to three classes of ATM owners and customers seeking billions of dollars in damages.

The Supreme Court in its orders that Justice Brett Kavanaugh took no part in the consideration or decision of this petition.

At issue is whether the district court appropriately certified the classes of plaintiffs. Judges must use the Rule 23 predominance method, in which facts common to class members must supersede any questions affecting only individual members. Some courts take a more strict approach to the Rule 23 method, while others are more relaxed.

“This Court’s intervention is necessary to resolve the rampant confusion in the lower courts and to provide guidance on the appropriate level of scrutiny mandated by Rule 23(b)(3),” Visa and Mastercard’s petition stated.

The case is among several antitrust suits against the card companies, including cases brought by merchants over swipe fees.

ATM operators and two groups of consumers sued Visa and Mastercard in 2021, with claims the credit card companies enforced an illegal agreement to fix prices for ATMs and suppressed competition between ATM networks. Visa and Mastercard own and operate networks that allow consumers to withdraw cash from their bank accounts using ATMs.

The card companies argued against the appellate court’s decision to affirm class certification, saying there was no common evidence to establish injury for all members, and that the certified classes swept in tens of thousands of uninjured plaintiffs.

“The court’s certification order does not rest on an incorrect legal standard,” the D.C. Circuit countered. “And we discern no substantive inadequacy or other legal error in the district court’s evidentiary assessment.”

The DRI Center for Law and Public Policy, which advocates for defense lawyers and their clients, supported the card companies’ petition in a February amicus brief, saying that letting the decision stand would “embolden district courts to certify plaintiff classes and then let the chips fall where they may.”

The card companies are represented by Arnold & Porter Kaye Scholer LLP and Paul Weiss Rifkind Wharton & Garrison LLP.

The case is Visa Inc. v. National ATM Council Inc., U.S., No. 23-814, 4/15/24.