The Clearing House (TCH), along with the ABA, CBA, FSR, NACHA, and ICBA (the Associations) filed an amicus brief with the SCOTUS in support of petitioners in Visa et al v. Osborn. The case centers on “Access Fee Rules” separately adopted by Visa and Mastercard, which prevented ATM operators from charging a Visa or Mastercard network user higher access fees for transactions routed over their respective networks than they charge for transactions routed over other networks. The plaintiffs in the original case sued and charged that the Access Fee Rules were the product of an unlawful conspiracy under Section 1 of the Sherman Act among every bank that participates in, and is thus a member of, the Visa and/or MasterCard networks. The D.C. District Court found that the plaintiffs failed to plausibly allege a Section 1 conspiracy, but the D.C Circuit Court vacated and remanded, concluding that respondents had sufficiently alleged a horizontal agreement to restrain trade at the pleadings stage. In the amicus, the Associations argue that the D.C. Circuit Court’s decision can be interpreted as lowering the bar for pleading an antitrust conspiracy under Section 1 of the Sherman Act by holding that mere membership in a collaborative activity and adherence to applicable rules is sufficient and should be reversed because the financial sector requires technology driven collaborative solutions to address current and future demands, noting that: (i) the Federal Reserve has called for technology-driven collaborative improvement of the payment system; (ii) financial sector safety and security depends on technology-driven collaboration; and (iii) financial sector collaboration supports compliance with regulatory safety and security obligations. Moreover, the Associations argue that the SCOTUS should ensure procompetitive collaboration is not deterred by the fear of overly expansive antitrust exposure, noting that: (i) antitrust laws fully support collaborative solutions as societally beneficial; (ii) over enforcement of the antitrust laws can chill procompetitive conduct that benefits society; and (iii) the D.C. Circuit decision represents an unwarranted lowering of applicable antitrust standards.
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