O'Melveny's Defense of Banks in MDL Over Certain Fees Noted by Law360

November 04, 2011 O'Melveny's representation of banking industry clients in federal multi-district litigation over intercharge fees was mentioned in an article posted November 2, 2011 on Law360. The article, "Visa, MasterCard, Banks Call Card-Fee MDL Groundless," analyzed arguments made in connection with a motion for summary judgment by the group of banks defending against allegations of antitrust violations and other charges from class and individual merchant plaintiffs. O'Melveny is among a group of firms representing defendants from the banking industry.
According to Law360, the defendants, including Visa, MasterCard and banks such as Bank of America Corp., JPMorgan Chase & Co. and Citigroup Inc., argue that the plaintiffs can't sue over fees they don't directly pay, and that the plaintiffs agreed to release these very claims in an earlier settlement. Further, the group contends that banks cannot control MasterCard and Visa, because both have been independent companies since their initial public offerings in 2006 and 2008, respectively.
The defendants also charge that the plaintiffs haven't shown any informal mechanism by which member banks could manipulate the card companies, Law360 reported. The defendants argue that in the aftermath of the IPOs, a horizontal conspiracy among the banks, Visa and MasterCard cannot be inferred "just because the banks have independently agreed to abide by Visa's and MasterCard's rules. They maintain that a unilateral decision by a bank to join the payment networks has an economic rationale — to make money by offering cards to consumers," according to Law360.