Visa Inc., Et Al. v. Osborn, Sam, Et Al And Visa Inc., Et Al. v. Stoumbos, Mary, Et Al.

Whether allegations that a member of a business association adhered to the association’s rules and possessed governance rights in the association are sufficient to plead the element of conspiracy under Section 1 of the Sherman Act?

Independent non-bank ATMs allow cardholders to withdraw cash from their banks by connecting to the cardholder’s bank through an ATM network. Petitioners, Visa and MasterCard, operate the most popular ATM networks. Petitioners impose Access Fee Rules on operators of independent non-bank ATMs. The rules provide that independent operators cannot charge a greater ATM access fee for transactions processed on Visa or MasterCard networks than that charged for transactions processed on an alternative ATM network. Petitioners assert that the Access Fee Rules are anticompetitive because they prevent independent operators from incentivizing cardholders to use cards that are less costly than Visa or MasterCard’s. Respondents sued Petitioners alleging violations of Section 1 of the Sherman Act and other state laws. The District Court held that Respondents failed to establish standing and lacked sufficient facts to establish the conspiracy element under the Sherman Act. The D.C. Circuit reversed, holding first that Respondents established standing because their economic theory of harm, even though based on assumptions about supply and demand, was supplemented with facts and is provable at trial. The D.C. Circuit also held that Respondents’ allegations that a group of banks fixed prices by adopting and enforcing the bankcard associations’ Access Fee Rules were sufficient to suggest an agreement of conspiracy under the Sherman Act. Petitioner seeks review of the D.C. Circuit’s holding that Respondents alleged sufficient facts to give rise to a plausible inference of conspiracy under the Sherman Act.