National Atm Council, Inc. v. Visa Inc.
Civil Action No. 2011-1803
| D.D.C. | May 22, 2017Background
- Plaintiffs are the National ATM Council and thirteen independent ATM operators challenging Visa and MasterCard network "ATM Access Fee Rules," adopted in 1996, which bar ATM operators from charging higher access fees for transactions routed over Visa/MasterCard than for alternative networks.
- Independent ATM operators earn revenue from (1) customer access fees and (2) net interchange payments that flow through card networks; plaintiffs allege Visa/MasterCard pay lower net interchange and the Rules foreclose incentives to route to cheaper networks.
- Plaintiffs sued under Section 1 of the Sherman Act alleging the Rules unreasonably restrain trade and sought a preliminary injunction to enjoin enforcement of the Rules during litigation.
- After procedural history including dismissal and a D.C. Circuit reversal (remand), plaintiffs renewed a motion for preliminary injunction; a hearing was held and the Court considered irreparable harm as dispositive.
- The Court denied the renewed preliminary injunction because plaintiffs failed to show likely irreparable harm: their harms were principally monetary, lacked causal proof tying the Rules to an existential threat, and were undermined by significant delay in seeking injunctive relief.
- The Court also granted defendants’ motion to strike a supplemental declaration filed with plaintiffs’ reply for violating local rules; the stricken declaration would not have changed the outcome.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs demonstrated likely irreparable harm to warrant a preliminary injunction | Rules cause continuing financial and reputational harm to the entire ATM market, threatening industry survival | Harms are economic, compensable by money damages, not imminent existential threat; plaintiffs delayed seeking relief | Denied — plaintiffs failed to show irreparable harm |
| Whether the claimed market decline is caused by the ATM Access Fee Rules | Decline in independent ATMs and operators is attributable in large part to the Rules | Plaintiffs offered only conclusory/ speculative statements; no causal proof tying Rules to decline | Denied — causal nexus not established |
| Whether plaintiffs’ delay affects entitlement to injunctive relief | Delay is explained by litigation history; urgency remains | Fifteen-year existence of Rules and multi-year delay in seeking preliminary relief undercuts claim of irreparable harm | Denied — delay undermines urgency |
| Whether to consider supplemental declaration filed with reply | Declaration supports imminent business failures caused by Rules | Filing violated local rules; defendants could not respond | Struck — Court granted motion to strike and did not consider it |
Key Cases Cited
- Cobell v. Norton, 391 F.3d 251 (D.C. Cir.) (preliminary injunction factors described)
- Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir.) (movant must show at least some irreparable injury)
- Wisconsin Gas Co. v. F.E.R.C., 758 F.2d 669 (D.C. Cir.) (economic harm generally does not constitute irreparable harm; business extinction exception explained)
- Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288 (D.C. Cir.) (sliding-scale approach to injunction factors)
- Osborn v. Visa Inc., 797 F.3d 1057 (D.C. Cir.) (appellate decision reversing dismissal and remanding the case)