Rubin talks about class action to eliminate an unfairness in the broader economy.
His remarks gave some of the background to the antitrust dispute in NAC, et al. v.
When network acquirer fees are equal or roughly equal, Rubin said, these "Access Fee Rules" exert little or no constraints on ATM pricing because roughly equal acquirer fees translate into approximately equal per transaction interchange revenue for ATM Operators.
In 2010, however,
Litigation History
In 2011, the NAC filed suit in
In 2015, the
On appeal,
All three arguments were rejected by the D.C. Circuit, Rubin said.
To the claim that not all ATM operators appear by name in the networks' billing records, the Court said: "[O]ne would not expect to find ATM Operator class members identified by name in Defendants' billing records.
To the claim that the Class includes "entities that do not receive or pay interchange," i.e., affiliates not ISOs, premises owners not ATM operators, the Court said: "ATM Operator class members who assign a portion of their payment obligations and revenues to other entities are no less injured by illegal practices that diminish this revenue."
To the claim that the Class includes others, e.g., premises owners, ESOs, or cash loaders that do not pay acquirer fees and therefore were not injured, the Court observed: "[E]ntities that manage ATM setup, service providers that handle ATM encryption keys, and retail stores that own on-site ATMs but do not originate transactions are excluded from the Class Definition."
Rubin shared with the industry group his view that the case involves "more than eliminating an unreasonable restraint on competition or even compensating ATM operators for past anticompetitive harm." He added, "The case also seeks to eliminate distortion and unfairness in the broader economy, so that all participants can reap the benefits of market competition in the form of transparent and fair pricing for consumers and equal competitive opportunities for smaller businesses and innovative enterprises."
Read the full text of the D.C. Circuit's holdings.
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