Faegre Baker Daniels counsel Dick Wegener was quoted in Bloomberg’s coverage of the Supreme Court’s June 28 decision to review the VISA/MasterCard ATM fees case. The lawsuit accuses Visa and MasterCard of adopting rules in a bankcard association which protected themselves from competition with a lower-cost ATM network and benefited major banks, which were members of the same association. The Court will likely address a split between the U.S. Court of Appeals between the D.C. Circuit and the Third, Fourth and Ninth Circuits over whether membership in a business association alone can be enough to show the requisite “contract, combination or conspiracy in restraint of trade” for a violation of the federal antitrust law.
“Currently, compliance focuses on participants avoiding discussions in a trade association setting about prices, capacity, production levels, and customers which can present antitrust risk. However, if members can be characterized as participants in a conspiracy and be subject to expensive discovery just by virtue of being a member – trade association antitrust compliance programs, and the risk analysis of membership itself, may undergo substantial change,” said Wegener.