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Visa Can't Stick With an Argument, So It Won't Be Making Any

By Casey C. Sullivan, Esq. on November 18, 2016 | Last updated on March 21, 2019

The Supreme Court tossed out two class action challenges brought by Visa yesterday, less than a month before the financial services company was scheduled to make oral arguments.

The reason? Visa had asked the Court to address one question in their petition for cert, but pursued a different argument in their merits briefing. The Supreme Court, unamused by Visa's shifting legal strategy, decided that Visa won't have a chance to make any of its legal arguments, dismissing the case as improvidently granted.

Visa Disputes the Charges

Visa's consolidated cases, Visa v. Osborn and Visa v. Stoumbos, involved allegations that ATM fee agreements violated antitrust laws. Consumer advocates accused major credit card companies like Visa of breaking the law when they agreed with banks on standardized ATM fees. Here, those fees were set according to an agreement among members of Visa and MasterCard's networks. Plaintiffs had alleged that membership in that network alone was enough to support a claim of conspiracy under Section 1 of the Sherman Act, and the D.C. Circuit agreed.

Visa petitioned for cert, joined by many of the country's biggest financial institutions, including Bank of America, JPMorgan Chase, Wells Fargo, and MasterCard. That petition claimed that the D.C. Circuit's decision created an "intolerable circuit conflict" with the Third, Fourth, and Ninth Circuits.

Once cert was granted, however, Visa shifted the focus of its argument. In its merits brief it argued that business networks should be treated as acting unilaterally, rather than in concert, since members do not pursue their separate economic interests but that of the network as a whole. The focus of the argument had changed to whether membership in a business association was enough to support an antitrust conspiracy claim to how the Court should treat those memberships under the Sherman Act.

No Time for Shifting Arguments

For the Court to dismiss a case as improvidently granted is uncommon, particularly so close to oral arguments. As Lyle Dennison explains on his blog:

Most often, a case washes out because the two sides agree to settle it, or there is a new development in the law that outruns the dispute. But it is very rare for the Court to choose on its own to scuttle a case because the lawyers did not follow through in arguing the point the Justices had agreed to decide.

Yet the Supreme Court made it quite clear that this was exactly what they were dismissing the case. "After having persuaded us to grant certiorari on this issue," the Court order stated, "petitioners chose to rely on a different argument in their merits briefing. The Court, therefore, orders that the writs in these cases be dismissed as improvidently granted." (Internal quotes and citations omitted.)

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