Merchant Associations Urge SCOTUS to Dismiss Visa, MasterCar

This week, the Retail Litigation Center (RLC) jointly filed an amicus brief with the National Retail Federation (NRF), the National Association of Convenience Stores (NACS), and the National Grocers Association (NGA) in the case Visa, Inc. v. Sam Osborn, currently before the U.S. Supreme Court.  

While the underlying case centers on the rules imposed by card networks when cardholders use non-bank ATMs, the question before the court is technical in nature. In their petition to the court, Visa and MasterCard seek to appeal the D.C. Circuit Court’s decision that set a framework for distinguishing concerted conduct from unilateral conduct. The card networks have argued, instead, for a rule that would allow entities to invoke their status as trade associations to escape liability when engaging in anticompetitive activity. The Merchant Associations’ brief, however, argues that Visa and MasterCard do not qualify as a true trade association, and that legitimate business associations do not partake in anticompetitive practices, nor are they jeopardized by the Court’s decision.  

“In their initial ruling, the DC Circuit Court got it right. Furthermore, Visa and MasterCard fail to meet the standards of a bona fide trade association and therefore their petition to the Court organizations is unjustified and inappropriate,” said Deborah White, president of the RLC. “Adopting a rule to allow antitrust violations under the cloak of trade association status undermines the value of bona fide organizations and the good will they have generated for their members and the business community by practicing within legal boundaries. We urge the Supreme Court to affirm the lower court’s ruling in this case.”  

According to the brief: 

“Visa and MasterCard are like bona fide trade associations only in the same sense that a man-eating tiger is like a kitten.” 

… 

“True trade associations and other business associations that do not engage in anticompetitive behavior do not need, and should not want, the new rule that Visa and MasterCard urge this Court to adopt because such a rule would prevent members of legitimate trade associations, as well as other consumers and businesses, from challenging anticompetitive depredations under the antitrust laws.” 

… 

The brief concludes: 

“Reversal of the decision below may allow Visa and MasterCard to adopt any of a variety of anticompetitive restraints. Such a result cannot be in the interest of any ‘business association’ that does not engage in anticompetitive conduct or in the interests of consumers. For the foregoing reasons, the judgement below should be affirmed or the petition should be dismissed as improvidently granted.” 

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The Retail Litigation Center is a public policy organization that identifies and engages in legal proceedings that affect the retail industry.  The RLC, whose members include some of the country's largest retailers, was formed to provide courts with retail industry perspectives on significant legal issues, and highlight the potential industry-wide consequences of legal principles that may be determined in pending cases.