Judge Rebukes ATM Trade Group on Injunction Bid

WASHINGTON (CN) — ATM operators trying to duck Visa and MasterCard’s pricey access fees failed to secure a federal injunction that would let them offer customers discounts for using other cards.

Joined by 13 independent owners and operators, a trade group called the National ATM Council brought its suit against the banking giants in Washington, D.C.

As a contractual condition for accessing Visa and MasterCard’s ATM networks, operators like the plaintiffs must agree to nondiscrimination provisions that have remained unchanged since 1996.

The rules prohibit ATM operators from using different access-fee pricing scales for customers depending on which cards they use, but the operators cast these restrictions as an illegal restraint on trade. They say the rules have hurt the industry, causing an observable decline in the number of independent operators that deploy ATMs.

Though the 2011 case was initially dismissed, a D.C. Circuit reversal put the case on U.S. District Judge Richard Leon’s docket in 2015.

The case nearly went to the Supreme Court, but the justices wound up dismissing the petition last year as improvidently granted.

Leon refused on May 22 to give the plaintiffs an injunction, seeing little evidence of irreparable harm.

“As an initial matter, I am skeptical, to say the least, that a general decline in the number of independent ATMs and operators constitutes an imminent and ‘existential threat to the movant[s’] business[es],’” the 11-page opinion states. “However, plaintiffs’ argument fails for an even more fundamental reason. Plaintiffs do not marshal any evidence showing that the ATM Access Fee Rules, which were adopted in 1996 and have remained substantially the same ever since, are the cause of the recent decline they describe.” (Emphasis in original.)

Leon also blasted the “extraordinary delay” he said the plaintiffs demonstrated in requesting the injunction.

By waiting four months after the D.C. Circuit remanded their district court, after an already considerable number of years since the rules’ adoption had pasted, Leon said the plaintiffs have undermined their claims of irreparable harm.

None of the parties have returned a request for comment.

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