Pamela Brennan v. Concord Efs, Inc. , 686 F.3d 741 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: ATM FEE ANTITRUST 
LITIGATION,
PAMELA BRENNAN; TERRY CRAYTON;
DARLA MARTINEZ,
Plaintiffs-Appellants,
v. No. 10-17354

CONCORD EFS, INC.; BANK ONE D.C. No.
CORPORATION; BANK ONE, N.A.; 3:04-cv-02676-CRB
J.P. MORGAN CHASE & CO.;
CITIBANK (WEST), F.S.B.DE; OPINION
SUNTRUST BANKS, INC.; WACHOVIA
CORPORATION; WELLS FARGO BANK,
N.A.; SERVUS FINANCIAL CORP.;
CITIBANK, N.A.; FIRST DATA
CORPORATION; BANK OF AMERICA,
N.A.,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
December 6, 2011—San Francisco, California
Filed July 12, 2012
7993
7994 IN RE ATM FEE ANTITRUST LITIGATION
Before: Carlos F. Lucero,* Consuelo M. Callahan, and
N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith
*The Honorable Carlos F. Lucero, Circuit Judge for the Tenth Circuit,
sitting by designation.
7996 IN RE ATM FEE ANTITRUST LITIGATION
COUNSEL
Joseph R. Saveri, Brendan P. Glackin, and Andew S. Kings-
dale, Leiff Cabraser Heimann & Bernstein, LLP, San Fran-
cisco, California; Merrill G. Davidoff (argued), Bart D.
Cohen, and Michael J. Kane, Berger & Montague, P.C., Phila-
delphia, Pennsylvania, for the plaintiffs-appellants.
W. Stephen Smith and Deanne E. Maynard (argued), Morri-
son & Foerster LLP, Washington, D.C.; Robert S. Stern and
Sylvia Rivera, Morrison & Foerster LLP, Los Angeles, Cali-
IN RE ATM FEE ANTITRUST LITIGATION 7997
fornia, for defendant-appellee J.P. Morgan Chase Bank, N.A.,
successor-in-interest to Bank One, N.A.
Sonya D. Winner (argued) and Anita F. Stork, Covington &
Burling LLP, San Francisco, California, for defendant-
appellee Bank of America, N.A.
Stephen V. Bomse, Orrick, Herrington & Sutcliffe, LLP, San
Francisco, California, for defendant-appellee Suntrust Bank,
Inc.
David F. Graham and Eric H. Grush, Sidley Austin LLP, Chi-
cago, Illinois, for defendants-appellees Citibank, N.A. and
Citibank (West), FSB.
Jack R. Nelson, Reed Smith LLP, San Francisco, California,
for defendant-appellee Wachovia Corp.
Daniel M. Wall and Joshua N. Holian, Latham & Watkins,
San Francisco, California, and Donald I. Baker, Baker & Mil-
ler, Washington, D.C., for defendants-appellees Wells Fargo
Bank, N.A. and Servus Financial Corp.
Peter E. Moll and Brian D. Wallach, Cadwalader, Wickcer-
sham & Taft LLP, Washington, D.C., for defendants-
appellees Concord EFS, Inc. and First Data Corp.
OPINION
N.R. SMITH, Circuit Judge:
Plaintiffs-Appellants (Plaintiffs) are automated teller
machine (ATM) cardholders, who allege horizontal price fix-
ing of fees paid to the ATM owners by the banks (issuing the
ATM cards to the cardholders) when cardholders retrieve cash
from an ATM not owned by their bank. Plaintiffs do not
7998 IN RE ATM FEE ANTITRUST LITIGATION
directly pay the allegedly fixed fee; therefore, as indirect pur-
chasers, Supreme Court precedent prohibits Plaintiffs from
bringing this suit. See Illinois Brick Co. v. Illinois, 431 U.S.
720 (1977). Further, Plaintiffs do not qualify for the narrow
exceptions to the Illinois Brick rule, because (1) they do not
allege a conspiracy to fix the price paid by the Plaintiffs and
(2) the banks are not controlled by each other or by the ATM
network. Therefore, Plaintiffs do not have standing under § 4
of the Clayton Act to proceed with their § 1 Sherman Act suit.
We thus affirm the district court’s summary judgment dis-
missal of this suit for lack of antitrust standing.
We limit our discussion in this opinion to the issues rele-
vant to standing. Because Plaintiffs lack antitrust standing, we
do not address Plaintiffs’ appeal regarding the district court’s
(1) determination that the rule of reason, and not the per se
rule, applies here; (2) rejection of the single-brand, derivative
aftermarket alleged in the complaint; and (3) determination
that Plaintiffs’ claim against Bank of America, N.A., did not
relate back to the filing of the original complaint under Rule
15(c) of the Federal Rules of Civil Procedure.
I. BACKGROUND
A. Facts
A “foreign ATM transaction” occurs when ATM card-
holders withdraw money from their bank account using an
ATM not owned by their bank (which issued them the card).
Such foreign ATM transactions involve four parties: (1) the
cardholder, i.e., the person using the ATM to retrieve money
from his or her bank account; (2) the card-issuing bank, i.e.,
the bank at which the cardholder holds an account and who
issues the cardholder an ATM card; (3) the ATM owner, i.e.,
the entity that owns the machine used by the cardholder; and
(4) the ATM network, i.e., the entity that connects the ATM
owners with card-issuing banks. Of all these parties, the ATM
network plays a particularly important role in this fact situa-
IN RE ATM FEE ANTITRUST LITIGATION 7999
tion. The network administers agreements between card-
issuing banks and ATM owners to ensure that customers can
withdraw money from network member ATMs.
Foreign ATM transactions generate four fees. The card-
holder must pay two of these fees—one to the ATM owner
for use of the ATM (known as a “surcharge”) and one to the
card-issuing bank (known as a “foreign ATM fee”). The card-
issuing bank also pays two of these fees—one to the ATM
network that routed the transaction (known as a “switch fee”)
and one to the ATM owner (known as an “interchange fee”).
At issue in this case are the interchange fee and the foreign
ATM fee. The ATM network (not the card-issuing bank nor
the ATM owners) establishes the interchange fee. Individual
card-issuing banks set their own foreign ATM fees.
The STAR Network (STAR) is the ATM network at issue
in this case. STAR has thousands of members who collec-
tively own hundreds of thousands of ATMs nationwide.
These members can be roughly divided into three groups. The
first group includes so-called Independent Service Organiza-
tions (“ISOs”). ISOs own ATMs, but they are not banks and
do not issue ATM cards (e.g., grocery stores or gas stations).
The second group consists of financial institutions that accept
deposits and issue ATM cards, but do not own any ATMs
(e.g., credit unions or internet banks). The third and largest
STAR member group includes financial institutions that both
issue ATM cards and own ATMs. The defendant banks (or
Bank Defendants) named in this case, which include all
defendants except for Concord EFS, Inc. (Concord) and First
Data Corporation, fit into this category. Until February 1,
2001, STAR was a member-owned network. As a member-
owned network, member banks (including Bank Defendants),
controlled STAR and set the interchange fees paid by the
members. On February 1, 2001, Defendant-Appellee Con-
cord, a publicly traded Delaware corporation, acquired STAR.
After the acquisition by Concord, Bank Defendants lacked
control of STAR based on ownership and board member
8000 IN RE ATM FEE ANTITRUST LITIGATION
appointment, because Concord was not owned by the member
banks of STAR.
Some Bank Defendants were concerned about the acquisi-
tion by Concord, because Concord was not owned by the
member banks and thus Bank Defendants would likely lose
influence over policies and pricing decisions (such as inter-
change fees). To moderate this concern, before the acquisition
STAR revised its agreement with its members to include lan-
guage that indicated that it would not change fees arbitrarily
and that it would consider the interests of its members before
implementing any changes. Additionally, to allegedly quell
the reluctance by the Bank Defendants, Concord agreed to
retain the pre-acquisition Chief Executive Officer of STAR
(who has no formal affiliation with the Bank Defendants) to
run the new network and agreed to elect him to Concord’s
board of directors to give a voice to the Bank Defendants.
Concord also agreed to establish a Network Advisory Board
(comprised of the larger member banks including Bank
Defendants) to advise Concord concerning the interests of the
large financial institutions. The Network Advisory Board
would provide input to Concord’s board as to policy and pric-
ing decisions, but had no authority to determine or veto inter-
change fee changes.
In February 2004, First Data Corporation (another Dela-
ware corporation) acquired Concord. As such, after February
2004, First Data owned and operated STAR.1
B. Procedural History
On July 2, 2004, Plaintiffs filed suit. On behalf of them-
selves and all those similarly situated, Plaintiffs alleged that
Defendants engaged in horizontal price fixing, a per se viola-
1
For simplicity, throughout the rest of the opinion we refer to Concord
as the owner and operator of STAR even though First Data took over that
role in 2004.
IN RE ATM FEE ANTITRUST LITIGATION 8001
tion of § 1 of the Sherman Act. They alleged that Defendants
colluded to fix the STAR interchange fee, which is then
passed on to Plaintiffs as part of the foreign ATM fee. Plain-
tiffs sought damages dating back to July 2, 2000.
Defendants filed a motion to dismiss arguing that Plaintiffs,
as indirect purchasers, lacked standing to allege an antitrust
violation pursuant to Illinois Brick. In re ATM Fee Antitrust
Litig., 768 F. Supp. 2d 984, 990 (N.D. Cal. 2009). On Sep-
tember 4, 2009, the district court denied the motion to dis-
miss. Id. at 994. Accepting all of Plaintiffs’ allegations as true
and construing the pleadings in the light most favorable to
Plaintiffs, the district court found that Plaintiffs’ suit could not
be dismissed for lack of standing. Id. at 992-94. The court
found that there was no realistic possibility that the Bank
Defendants would sue STAR and that Plaintiffs alleged that
they were “purchasing directly from the price-fixing conspira-
tors . . . .” Id. at 992. On October 19, 2009, Plaintiffs filed
their third amended complaint.
Subsequently, “Defendants . . . moved for summary judg-
ment, [again] arguing that the Illinois Brick rule barring indi-
rect purchasers from recovering monetary damages in an
antitrust suit applies here and precludes Plaintiffs from seek-
ing such damages.” In re ATM Fee Antitrust Litigation, No.
C 04-02676 CRB, 2010 WL 3701912, at *4 (N.D. Cal. Sep.
16, 2010). On September 16, 2010, the district court granted
Defendants’ motion for summary judgment and dismissed
Plaintiffs’ claim on the ground that Plaintiffs lack standing
under Illinois Brick’s direct purchaser rule. Id. at *11. Finding
no genuine issue of material fact, the district court found
Plaintiffs to be indirect purchasers. Id. at *12. Plaintiffs did
not directly pay the alleged fixed interchange fees—labeled
by the district court as the alleged “unlawful fee.” Id. at *5.
Critically, Plaintiffs do not allege that Defendants
have conspired to illegally fix the foreign ATM fee
that Plaintiffs pay to their bank when they use a for-
8002 IN RE ATM FEE ANTITRUST LITIGATION
eign ATM. . . . Importantly, Plaintiffs do not allege
that the Defendants or any other banks have con-
spired to fix the foreign ATM fee that Plaintiffs must
pay. . . . Instead, Plaintiffs assert that their banks pay
an unlawfully inflated interchange fee and then pass
the cost of the artificially high interchange fee along
to them through foreign ATM fees. . . . Plaintiffs . . .
do not pay this allegedly unlawful fee directly (their
banks do) and therefore are not directly harmed by
it. . . . Plaintiffs do not dispute that they pay the pur-
portedly unlawful interchange fee only indirectly.
. . . Plaintiffs therefore acknowledge that they are
only indirect payers of the interchange fee and that
the banks are the direct payers. . . . Given that Plain-
tiffs are not “direct purchasers” of the unlawful fee,
their damages claims are barred by the Illinois Brick
rule, unless an exception to the rule applies.
Id. at *2, *3, *5. The district court found no exception applica-
ble.2 Id. at *5-10. The district court filed a final judgment
against Plaintiffs on September 17, 2010. A timely appeal fol-
lowed.
2
Notably, “Plaintiffs argue[d] that there is ‘no realistic possibility’ that
the direct purchasers of interchange fees—i.e., the card-issuing banks—
would file a lawsuit challenging the unlawful fixing of those fees, for sev-
eral reasons.” Id. at *7. The district court rejected the argument, “because
it ignores the critical fact that the overwhelming majority of ATM card-
issuing banks pay more in interchange fees than they receive.” Id. In other
words, they are net payers. Id. “Because they pay more in interchange fees
than they receive, the higher the interchange fee, the higher their costs.
Thus, there is a very realistic possibility that these entities (or some subset
of them) would file suit to challenge the fixing of interchange fees at arti-
ficially high rates.” Id. at *8. In the end, the district court concluded that
“card-issuing banks are better-off if interchange fees are eliminated,” and
so they have incentive to sue. Id.
IN RE ATM FEE ANTITRUST LITIGATION 8003
II. JURISDICTION AND STANDARD OF REVIEW
Federal district courts have jurisdiction over “questions
alleging the violation of federal laws pursuant to 28 U.S.C.
§ 1331.” Del. Valley Surgical Supply Inc. v. Johnson & John-
son, 523 F.3d 1116, 1119 (9th Cir. 2008). We have jurisdic-
tion over appeals from final decisions of district courts. 28
U.S.C. § 1291.
Standing is a question of law for the district court to decide.
See Warth v. Seldin, 422 U.S. 490, 498-99 (1975); Del. Val-
ley, 523 F.3d at 1119; see also Haase v. Sessions, 835 F.2d
902, 904 (D.C. Cir. 1987) (“[T]he ultimate responsibility to
ensure subject matter jurisdiction always lies with the court,
not the parties.”). Because the court (and not a jury) decides
standing, the district court must decide issues of fact neces-
sary to make the standing determination. See Duke Power Co.
v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 72 (1978)
(district court held four days of hearings to decide motion to
dismiss for want of standing). “The fact-finding of the [dis-
trict] court to support or deny standing is subject to review
under the clearly erroneous standard.” Haase, 835 F.2d at 907
(citing Duke Power, 438 U.S. at 77 (“[W]e cannot say we are
left with ‘the definite and firm conviction that’ the finding by
the trial court . . . is clearly erroneous; and, hence, we are
bound to accept it.” (citation omitted))). However, when
standing is challenged on summary judgment, “[t]he court
shall [not] grant summary judgment if the movant shows that
there is [a] genuine dispute as to any material fact . . . .” Fed.
R. Civ. P. 56(a); see also Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (1992) (“[E]ach element [of standing] must be
supported in the same way as any other matter on which the
plaintiff bears the burden of proof, i.e., with the manner and
degree of evidence required at the successive stages of the liti-
gation.”). Therefore, if there is a genuine issue of material
fact, then summary judgment is inappropriate without the dis-
trict court resolving the factual dispute. See Bischoff v. Osce-
ola Cnty., Fla., 222 F.3d 874, 878-80 (11th Cir. 2000); see
8004 IN RE ATM FEE ANTITRUST LITIGATION
also Haase, 835 F.2d at 907, 910. “Several [other] circuits
explicitly prohibit district courts from resolving disputed fac-
tual questions or making credibility determinations essential
to the question of standing on the basis of affidavits alone.”
Harry T. Edwards & Linda A. Elliott, Federal Standards of
Review Ch. III.A (2007) (citing Bischoff, 222 F.3d at 880-81
(following First and Fifth Circuit cases)). We need not decide
whether the district court must conduct additional evidentiary
inquiries or the necessary extent of those inquires when
resolving issues of material fact at the summary judgment
stage, because our holding confronts no genuine issue of
material fact and does not rely on factual findings of the dis-
trict court.
When a district court determines standing on summary
judgment (as is the case here), “[w]e must determine [de
novo], viewing the evidence in the light most favorable to the
nonmoving party, whether there are any genuine issues of
material fact and whether the district court correctly applied
the relevant substantive law.” Del. Valley, 523 F.3d at 1119.
In the absence of genuine issues of material fact, we may
affirm the district court’s summary judgment “on any ground
supported by the record, regardless of whether the district
court relied upon, rejected, or even considered that ground,”
Kling v. Hallmark Cards Inc., 225 F.3d 1030, 1039 (9th Cir.
2000), if “the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a).
III. DISCUSSION
Under § 4 of the Clayton Act, “any person who shall be
injured in his business or property by reason of anything for-
bidden in the antitrust laws may sue . . . and shall recover
threefold the damages by him sustained, and the cost of suit,
including a reasonable attorney’s fee.” 15 U.S.C. § 15(a).
However, “[t]he Supreme Court has interpreted that section
narrowly, thereby constraining the class of parties that have
statutory standing to recover damages through antitrust suits.”
IN RE ATM FEE ANTITRUST LITIGATION 8005
Del. Valley, 523 F.3d at 1119 (citing Illinois Brick, 431 U.S.
720).
[1] The Supreme Court has held that a direct purchaser has
“been injured in its business as required by [§ ] 4” even
though it passes on “claimed illegal overcharge[s] to” its cus-
tomers. Illinois Brick, 431 U.S. at 724 (discussing Hanover
Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481 (1968)).
Thus, defendants may not use a pass-on theory to challenge
the standing of direct purchasers. However, the Supreme
Court has also held that § 4 of the Clayton Act does not “per-
mit offensive use of a pass-on theory against an alleged viola-
tor that could not use the same theory as a defense in an
action by direct purchasers.” Id. at 735. In other words, indi-
rect purchasers may not use a pass-on theory to recover dam-
ages and thus have no standing to sue. Id. at 745-46. This rule
(the Illinois Brick rule), that indirect purchasers suffer no
injury under § 4, was reaffirmed in Kansas v. UtiliCorp
United, Inc., 497 U.S. 199, 207 (1990). “In sum, a bright line
rule emerged from Illinois Brick: only direct purchasers have
standing under § 4 of the Clayton Act to seek damages for
antitrust violations.” Del. Valley, 523 F.3d at 1120-21.
The underlying purposes for the rule are (1) “to eliminate
the complications of apportioning overcharges between direct
and indirect purchasers,” UtiliCorp, 497 U.S. at 208; (2) “to
eliminate multiple recoveries,” id. at 212; and (3) to “promote
the vigorous enforcement of the antitrust laws,” id. at 214.
However, the Supreme Court has stated that, while “[t]he
rationales underlying . . . Illinois Brick will not apply with
equal force in all cases[, w]e nonetheless believe that ample
justification exists for our stated decision not to ‘carve out
exceptions to the [direct purchaser] rule for particular types of
markets.’ ” Id. at 216 (second alteration in original) (quoting
Illinois Brick, 431 U.S. at 744). “[E]ven assuming that any
economic assumptions underlying the Illinois Brick rule
might be disproved in a specific case, we think it an unwar-
ranted and counterproductive exercise to litigate a series of
8006 IN RE ATM FEE ANTITRUST LITIGATION
exceptions.” Id. at 217; see also Del. Valley, 523 F.3d at 1124(“The Court’s firm rule does not provide us the leeway to
make a policy determination on a case-by-case basis as to
whether standing should be recognized when there are special
business arrangements.”).
[2] While the Supreme Court has expressed reluctance in
carving out exceptions to the Illinois Brick rule, limited
exceptions do exist. First, the Supreme Court recognized
standing for indirect purchasers when a preexisting cost-plus
contract with the direct purchaser exists. Illinois Brick, 431
U.S. at 736; Utilicorp, 497 U.S. at 217-18. Second, indirect
purchasers may have standing under a “co-conspirator”
exception. 2A Phillip E. Areeda et al., Antitrust Law ¶ 346h
(3d ed. 2007). The court explained this exception, stating that
“an indirect purchaser may bring suit where he establishes a
price-fixing conspiracy between the manufacturer and the
middleman.” Del. Valley, 523 F.3d at 1123 n.1 (citing Arizona
v. Shamrock Foods, Co., 729 F.2d 1208, 1211 (9th Cir.
1984)). However, for the indirect purchaser to merit standing
under this exception, the conspiracy must fix the price paid by
the plaintiffs. Shamrock Foods, 729 F.2d at 1211. Third, indi-
rect purchasers may sue when customers of the direct pur-
chaser own or control the direct purchaser, Illinois Brick, 431
U.S. at 736 n.16, or when a conspiring seller owns or controls
the direct purchaser, Royal Printing Co. v. Kimberly Clark
Corp., 621 F.2d 323, 326 (9th Cir. 1990). For example, an
indirect purchaser may sue if the direct purchaser is a division
or subsidiary of the price-fixing seller. Id. In Freeman, our
court may have outlined a fourth exception, that “indirect pur-
chasers can sue for damages if there is no realistic possibility
that the direct purchaser will sue,” relying on the seller’s con-
trol of the direct purchaser. Freeman, 322 F.3d at 1145-46
(citing Royal Printing Co., 621 F.2d at 326). However,
whether there is such an exception is unclear, because we held
IN RE ATM FEE ANTITRUST LITIGATION 8007
that standing existed in Freeman based on the control or co-
conspirator exceptions.3 See id.
In this case, the parties argue over the contours of these
exceptions. But after review, none of the exceptions allow
Plaintiffs to avoid “run[ning] squarely into the Illinois Brick
wall.” Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1049 (9th
Cir. 2008).
A. Indirect Purchasers
[3] Plaintiffs argue that they should be considered as direct
purchasers or fit within the co-conspirator exception, because
the foreign ATM fee they have paid is an illegally fixed fee
as defined by antitrust law.4 However, Plaintiffs concede that
they have never directly paid interchange fees. Instead, card-
issuing banks (including Bank Defendants) pay interchange
fees and then include them when they charge foreign ATM
fees (alleged by Plaintiffs to be artificially inflated). In other
words, the Bank Defendants pass on the cost of the inter-
change fees through the foreign ATM fees. The district court
found Plaintiffs to be indirect purchasers, because they do not
directly pay the fixed interchange fee, labeled by the district
court as the alleged “unlawful fee.” In re ATM Fee Antitrust
Litig., 2010 WL 3701912, at *5. The district court found it
important that “Plaintiffs do not allege that the Defendants or
any other banks have conspired to fix the foreign ATM fee
that the Plaintiffs must pay.” Id. at *2. We agree with the dis-
trict court that Plaintiffs are indirect purchasers.
3
“[T]he exception that [Freeman] purported to recognize is not yet one
acknowledged by the Supreme Court, which has thus far been indifferent
to the question whether the direct purchaser is likely to sue. What the
[Ninth Circuit] was really describing was a ‘control’ or perhaps a ‘co-
conspirator’ exception.” 2A Phillip E. Areeda et al., Antitrust Law ¶ 346f
(3d ed. 2007).
4
Although the argument touches upon the initial inquiry whether Plain-
tiffs are indirect purchasers, we address the argument within our discus-
sion of the co-conspirator exception.
8008 IN RE ATM FEE ANTITRUST LITIGATION
B. Exceptions to Illinois Brick
1. No Preexisting Cost-Plus Contract
[4] Plaintiffs do not contend that they had a preexisting
cost-plus contract with Defendants. Therefore, this exception,
allowing indirect purchasers to sue when they have a preexist-
ing cost-plus contract with the direct purchaser, Illinois Brick,
431 U.S. at 736; Utilicorp, 497 U.S. at 217-18, does not apply
here.
2. Co-Conspirator Exception and the Price “Fixed”
This co-conspirator exception allows an indirect purchaser
to sue when co-conspirators set the price paid by the plaintiff.
2A Phillip E. Areeda et al., Antitrust Law ¶ 346h (“Illinois
Brick does not limit suits by consumers against a manufac-
turer who illegally contracted with its dealers to set the latter’s
resale price. The consumer plaintiff is a direct purchaser from
the dealer who . . . has conspired illegally with the manufac-
turer with respect to the very price paid by the consumer.”
(footnote omitted)).
Specifically, our circuit has outlined this exception in
Shamrock Foods as applying when the direct purchaser con-
spires horizontally or vertically to fix the price paid by the
plaintiffs. 729 F.2d at 1211. In Shamrock Foods, consumers
alleged that retail grocery stores conspired with dairy produc-
ers, who also sold directly to consumers, to fix the retail
prices of dairy products. Id. Illinois Brick did not apply,
because “the retail price was the one fixed,” and thus, the
“theory of recovery d[id] not depend on pass-on damages.”
Id.; see also id. at 1214 (“The consumers confine their claim
for damages . . . solely to that overcharge resulting from a
retail level price-fixing conspiracy. There is no need to appor-
tion that overcharge because it was not passed on to the con-
sumers through any other level in the distribution chain.”). As
the district court aptly noted, this co-conspirator exception is
IN RE ATM FEE ANTITRUST LITIGATION 8009
not really an exception at all. In re ATM Fee Antitrust Litig.,
2010 WL 3701912, at *6; see also 2A Phillip E. Areeda et al.,
Antitrust Law ¶ 346h (“Whether one adopts a co-conspirator
exception or regards this situation as outside Illinois Brick’s
domain, there is no tracing or apportionment to be done.”
(footnote omitted)). If the direct purchaser conspires to fix the
price paid by the plaintiffs, then the plaintiffs pay the fixed
price directly and are not indirect purchasers (i.e., there is no
pass-on theory involved). See Shamrock Foods, 729 F.2d at
1211-12.
Here, the district court found Shamrock Foods inapplicable,
because
Plaintiffs in this case, unlike the plaintiffs in Sham-
rock Foods, do not allege that Defendants conspired
to fix the price Plaintiffs paid (i.e., the foreign ATM
fee). Instead, Plaintiffs allege that Defendants fixed
the interchange fee that Star Network pay one
another and then passed along the artificially inflated
fee to Plaintiffs. Thus, unlike Shamrock Foods,
Plaintiffs’ theory of recovery expressly depends on
pass-on damages. . . . In short, the Shamrock Foods
exception applies where the Defendants have con-
spired to fix the price that Plaintiffs paid directly.
That is not the case here.
In re ATM Fee Antitrust Litig., 2010 WL 3701912, at *6
(internal quotation marks and alterations omitted). We agree
with the district court.
As we emphasized in Kendall v. Visa U.S.A., Inc., 518 F.3d
1042, the price paid by plaintiffs must be fixed. Kendall
applies particularly well to this case, because it involved simi-
lar allegations and fee structures. In Kendall, merchants sued
credit card companies (or Consortiums) and banks, alleging
that they conspired to set the transaction fee charged to mer-
chants for each retail transaction—i.e., the merchant discount
8010 IN RE ATM FEE ANTITRUST LITIGATION
fee—by setting the interchange fees charged by the Consor-
tiums to the issuing banks. Id. at 1049. The merchant plain-
tiffs alleged that setting the interchange fees “establish[ed] a
minimum amount for the merchant discount fees.” Id. How-
ever, the merchant plaintiffs “[ran] squarely into the Illinois
Brick wall,” with respect to interchange fees, because they
were not charged the interchange fee directly. Id. Also,
“[a]ppellants allege[d] the Consortiums indirectly estab-
lish[ed] the minimum merchant discount fee the Banks char-
ge[ed] Merchants.” Id. “[T]his allegation [was] barred by
Illinois Brick to the extent that the Consortiums d[id] not
directly set the merchant discount fee; the acquiring bank sets
that fee.” Id. More importantly, the Kendall plaintiffs alleged
that the credit card companies directly conspired with the
banks to set the merchant discount fee, so they should have
standing under the co-conspirator exception. Id. at 1050. Crit-
ically, the plaintiffs alleged a conspiracy to fix the price paid
by the plaintiffs. Id. Although the court rejected the argument
because plaintiffs provided no facts to support such a conspir-
acy, the court found significant the fact that the plaintiffs did
“not allege any facts showing the Consortiums have any
direct control over the merchant discount fee the acquiring
bank chooses to charge . . . .” Id.[5] The Kendall plaintiffs failed to show a conspiracy “to
set merchant discount fees,” and “appellants [did] not allege
any facts showing the Consortiums ha[d] any direct control
over the merchant discount fee.” Id. As such, Kendall reaf-
firmed that the co-conspirator exception applies when the
conspirators set the price paid by the consumer. The same
analysis applies in our case. Here, while Plaintiffs allege a
conspiracy to set interchange fees, they fail to show a conspir-
acy to set foreign ATM fees. Plaintiffs do not allege that
STAR has control to set foreign ATM fees. Further, Bank
Defendants have no control over the foreign ATM fees of
other Bank Defendants or STAR members.
[6] The Fourth Circuit also requires that plaintiffs allege a
conspiracy to fix the price paid by the plaintiffs. Dickson v.
IN RE ATM FEE ANTITRUST LITIGATION 8011
Microsoft Corp., 309 F.3d 193 (4th Cir. 2002). In Dickson,
computer purchasers alleged that license agreements between
computer sellers and Microsoft
resulted in supracompetitive prices for Microsoft’s
operating system and application software. [Com-
puter purchasers do] not allege any conspiracy
between Microsoft and the OEM Defendants to set
the resale price of the software. Instead, [they]
claim[ ] that overcharges were passed on to the con-
sumers by the OEM Defendants when the consumers
purchased personal computers (PCs) from the OEM
Defendants.
309 F.3d at 200. As such, Dickson held the claim it faced to
be “materially indistinguishable from the claim under consid-
eration in Illinois Brick, and [the plaintiffs’] inclusion of a
conspiracy allegation [was] insufficient to circumvent the Illi-
nois Brick rule.” Id. at 215. Dickson acknowledged the trend
of recognizing a co-conspirator exception. Id. at 214-15.
However, the court “interpret[ed] these cases as standing for
the more narrow proposition that Illinois Brick is inapplicable
to a particular type of conspiracy—price-fixing conspiracies.”
Id. at 215. In other words, the court concluded that only a
conspiracy to fix the price paid by the consumer is an excep-
tion to Illinois Brick, because it is “grounded on the damages
theory underlying the alleged conspiracy”—i.e., “no over-
charge has been passed on to the consumer.” Id. Dickson
refused to recognize an exception when plaintiffs allege a
conspiracy but the conspirators did not fix the price paid by
the plaintiffs, because such an action would be contrary to the
Supreme Court’s direction not to carve out exceptions to the
Illinois Brick rule. Id. at 214 (citing Utilicorp, 497 U.S. at 216(“We . . . believe that ample justification exists for our stated
decision not to ‘carve out exceptions to the [direct purchaser]
rule for particular types of markets.’ ” (quoting Illinois Brick,
431 U.S. at 744))).
8012 IN RE ATM FEE ANTITRUST LITIGATION
[7] Although Dickson cites Shamrock Foods as an example
of the co-conspirator exception, id. at 214-15, Shamrock
Foods parallels Dickson’s understanding that the exception
only applies when the co-conspirators fix the price paid by the
plaintiff. Shamrock Foods held that Illinois Brick does not
apply when co-conspirators fix the retail price paid by con-
sumers because the “theory of recovery does not depend on
pass-on of damages . . . .”5 See 729 F.2d at 1211. Shamrock
Foods then indicates that a conspiracy to fix upstream prices
relies on the pass-on damages Illinois Brick prohibits. See id.Therefore, we agree with the Fourth Circuit and decline to
extend the co-conspirator exception past the situation when
alleged co-conspirators set the price paid by the plaintiffs.
Plaintiffs argue that they have standing here, because
Defendants conspired to fix interchange fees for the purpose
and effect of fixing foreign ATM fees. In sum, Plaintiffs
argue that the foreign ATM fee was “fixed,” because
[w]hen the term ‘fix prices’ is used, that term is used
in its larger sense. A combination or conspiracy
formed for the purpose and with the effect of raising,
depressing, fixing, pegging or stabilizing the price of
a commodity in interstate commerce is unreasonable
per se under the Sherman Act.
Plymouth Dealers’ Ass’n of N. Cal. v. United States, 279 F.2d
128, 132 (9th Cir. 1960); see also Palmer v. BRG of Ga., Inc.,
498 U.S. 46, 48 (1990) (per curiam). Plaintiffs argue that
Defendants conspired to fix interchange fees for the purpose
of raising foreign ATM fees. Therefore, Defendants fixed the
5
Plaintiffs argue that Delaware Valley construed Shamrock Foods to
mean that plaintiffs have standing by “establish[ing] a price-fixing con-
spiracy between manufacturer and middleman—without regard to the
price at issue.” But Delaware Valley only discussed Shamrock Foods in
a passing footnote and did not describe the scope of the price-fixing con-
spiracy. Delaware Valley, 523 F.3d at 1123 n.1.
IN RE ATM FEE ANTITRUST LITIGATION 8013
foreign ATM fees (which Plaintiffs directly paid), and Plain-
tiffs have standing.
[8] However, Plaintiffs’ argument hinges on what it means
to “fix” a price. The district court and Defendants suggest
that, in the Illinois Brick context, fixing a price sets the price
directly paid, not a price latter passed-on as part of the price
at issue. However, Plaintiffs argue that conspiring to set a
price for the purpose and effect of raising the price at issue
equates to fixing that price and makes the payers of the raised
price direct purchasers.
Plaintiffs’ argument misses the mark. Illinois Brick rejected
this argument when it rejected “mark up” claims. See 431
U.S. at 744. Plaintiffs’ argument re-characterizes the “mark
up” claim by alleging that the Defendants imposed fixed
interchange fees for the purpose of marking up foreign ATM
fees. Plaintiffs’ argument differs little from the argument that
a fixed percentage mark up or a price-fixed good used in the
ultimate product should allow indirect purchasers to sue,
because the price ultimately paid by Plaintiffs includes the
fixed costs. However, the Supreme Court expressly rejected
such arguments, based largely on the reasoning that “[f]irms
in many sectors of the economy rely to an extent on cost-
based rules of thumb in setting prices . . . [and t]he intricacies
of tracing the effect of an overcharge on the purchaser’s
prices, costs, sales, and profits . . . are not spared the liti-
gants.” Id. Further, Plaintiffs do not allege here that the banks
agreed to fix the level of the “mark up” in the foreign ATM
fees or even whether such fees would be charged at all. The
third amended complaint states that “Defendants have contin-
ued to impose fixed Interchange Fees because the Bank
Defendants mark them up to set Foreign ATM Fees, which
generate substantial revenues for Bank Defendants.” Plaintiffs
allege a mark up of foreign ATM fees to pass on the inter-
change fees. The allegation contradicts Illinois Brick, because
Illinois Brick rejected exceptions for markups by middlemen
8014 IN RE ATM FEE ANTITRUST LITIGATION
or when the price-fixed good is a vital input to a larger prod-
uct. 431 U.S. at 743-45.
Moreover, Plaintiffs’ cited precedent does not support the
argument that foreign ATM fees were fixed. See Plymouth
Dealers’ Ass’n, 279 F.2d at 132; Palmer, 498 U.S. at 48. Nei-
ther case involved the question of who is injured under § 4 of
the Clayton Act or pass-on theories. In Plymouth Dealers’
Ass’n, car dealers agreed to a fixed price list that would be the
starting point for bargaining. 279 F.2d at 132. In Palmer,
competitors agreed to give one of them the exclusive rights to
Georgia. 498 U.S. at 47-48. Neither involved passing on the
price fixed through the price paid by the plaintiffs. Both cases
determined what constituted fixing prices under § 1 of the
Sherman Act. See, e.g., Plymouth Dealers’ Ass’n, 279 F.2d at
132 (holding that conspiring to raise, depress, fix, peg, or sta-
bilize a price “is unreasonable per se under the Sherman Act”
(emphasis added)).
However, as in Illinois Brick, our task involves determining
whether Plaintiffs are injured within the meaning of § 4 of the
Clayton Act. See Illinois Brick, 431 U.S. at 723-26. Section
4 of the Clayton Act provides: “Any person who shall be
injured in his business or property by reason of anything for-
bidden in the antitrust laws may sue . . . .” 15 U.S.C. § 15(a).
Therefore, Plymouth Dealers’ Association and Palmer
decided what constitutes “anything forbidden in the antitrust
laws,” while Illinois Brick decided whether injury results
based on a pass-on theory. See Illinois Brick, 431 U.S. at 729(“[T]he overcharged direct purchaser, and not others in the
chain of manufacture or distribution, is the party ‘injured in
his business or property’ within the meaning of [§ 4 of the
Clayton Act] . . . .”). In sum, the price paid by plaintiffs must
be the price set (not merely “fixed” in some broad sense) for
plaintiffs to be a direct purchaser under the narrowly defined
injury requirement of § 4 of the Clayton Act. Further, under
the co-conspirator exception recognized in this circuit, the
price paid by a plaintiff must be set by the conspiracy and not
IN RE ATM FEE ANTITRUST LITIGATION 8015
merely affected by the setting of another price. See Shamrock
Foods, 729 F.2d at 1211.
Plaintiffs cite Knevelbaard Dairies v. Kraft Foods, Inc.,
232 F.3d 979 (9th Cir. 2000), for the proposition that Defen-
dants effectively fixed foreign ATM fees by fixing inter-
change fees, which thus gives Plaintiffs standing. However,
Plaintiffs inappropriately rely on Knevelbaard, because Kne-
velbaard found antitrust injury under California’s Cartwright
Act, which “is enlarged, by statute, in comparison to federal
law.” Id. at 991. “As a result, the more restrictive definition
of antitrust injury under [Illinois Brick] does not apply to the
Cartwright Act.” Id. (internal quotation marks omitted).
Because “California law affords standing more liberally than
does federal law,” Knevelbaard did not decide whether anti-
trust injury, or standing, existed under Illinois Brick. See id.
at 987.
Lastly, Freeman fails to support Plaintiffs’ argument that
the foreign ATM fees were “fixed.” In Freeman, realtor asso-
ciations formed a single MLS6 database ran by Sandicor, a
corporation they created, owned, and controlled. 322 F.3d at
1141, 1146. The plaintiffs alleged that the associations con-
spired to fix support fees charged to Sandicor, and that these
fees inflated the MLS fees charged by Sandicor and paid by
plaintiffs. Id. at 1142. The associations fixed the support fees
charged to Sandicor, and Sandicor set the MLS fees charged
to subscribers. Id. at 1141, 1145. Freeman held that fixing the
support fees artificially inflated that MLS fees paid by the
plaintiffs. See Freeman, 322 F.3d at 1145.
[9] Contrary to Plaintiffs’ argument, Freeman demon-
strates that fixing one fee for the purpose and effect of inflat-
6
“[T]he Multiple Listing Service, or ‘MLS,’ [ ] lets agents share infor-
mation about properties on the market with the help of a computerized
database. Agents who subscribe to the MLS can peruse the listings of
other subscribers and post their own.” Freeman, 322 F.3d at 1140.
8016 IN RE ATM FEE ANTITRUST LITIGATION
ing another fee does not make the purchaser a direct purchaser
under Illinois Brick. In Freeman, the court was forced to find
an exception to Illinois Brick even though the court found
price fixing by setting the support fees and passing them on
through MLS fees. Id. at 1145-46. Therefore, in the context
of Illinois Brick, fixing an upstream cost did not equate to fix-
ing the price paid by the plaintiffs. Standing existed in Free-
man, not because the associations fixed the support fees for
the purpose and effect of raising MLS fees, but because of the
associations’ ownership and control of Sandicor (the direct
purchaser). Id. at 1145-46 (citing Royal Printing, 621 F.2d at
326).
[10] Plaintiffs argue Freeman relies on the co-conspirator
exception, because the court noted that the associations, in
essence, had agreed to have the MLS charge be $44. See 322
F.3d at 1146 (comparing the case to resale price maintenance
and noting that “Defendants can’t turn a horizontal agreement
to fix prices into something innocuous just by changing the
way they keep their books”). However, even if Freeman
applied the co-conspirator exception, it does not help Plain-
tiffs. The defendants in that case conspired to effectively set
the price paid by the customers of the MLS. See id. (associa-
tions effectively “agree[d] among themselves to resell [MLS
database access] with support services for exactly $22.50”).
Here, unlike Freeman, the Bank Defendants independently set
the fee paid by Plaintiffs (i.e., foreign ATM fee) and the
amount of such fee varies between Bank Defendants. As such,
Defendants have not conspired to set the foreign ATM fees
unlike the associations in Freeman effectively setting the
price for Sandicor’s MLS service.
Plaintiffs next argue that they have standing, because they
“purchased directly from price-fixing Defendants,” an argu-
ment closely related to the argument that the foreign ATM
fees were “fixed.” In other words, Plaintiffs argue that the
direct purchaser Bank Defendants conspired to fix the inter-
change fees (an upstream cost), so Plaintiffs purchased from
IN RE ATM FEE ANTITRUST LITIGATION 8017
a horizontal price fixing conspirator. They argue Illinois Brick
does not apply even though Defendants did not fix the price
Plaintiffs directly paid, because they are purchasing from a
violator. However, because Shamrock Foods only involved
the setting of the price actually paid (and not an upstream
price that was then passed on), we would have to extend our
current co-conspirator exception. Though other courts have,7
we decline to do so.
7
In In re TFT LCD (Flat Panel) Antitrust Litigation, the Northern Dis-
trict of California held that a purchaser of a finished TFT-LCD product
was a direct purchaser, even though “the alleged price-fixing conspiracy
existed only with regard to TFT-LCD panels, and not finished products.”
267 F.R.D. 291, 306-07 (N.D. Cal. 2010). The district court classified con-
sumers of the final products as direct purchasers because they “pur-
chase[d] directly from the alleged violator.” Id. at 307 (quoting In re
Sugar Indus. Antitrust Litig., 579 F.2d 13, 17 (3d Cir. 1978)). In support
of the conclusion, the Northern District of California cited two Third Cir-
cuit cases.
In In re Sugar Industries Antitrust Litigation, the Third Circuit classi-
fied candy wholesalers as direct purchasers because the candy manufactur-
ers also refined sugar (sugar refiners being the alleged violators). 579 F.2d
at 17-18. In In re Sugar Industries, the plaintiff “limited the issue to the
summary judgment only insofar as it affects the direct purchases of candy
from defendants,” because “in the face of Illinois Brick . . . plaintiff has
no hope of success on the purchases from nondefendants.” Id. at 16. Thus,
In re Sugar Industries actually exemplifies the exception allowed when an
upstream violator controls or owns the direct purchaser, which is dis-
cussed in more detail below. See id. at 18-19; 2A Phillip E. Areeda et al.,
Antitrust Law ¶ 346f & n. 41.
Later, in In re Linerboard Antitrust Litigation, the Third Circuit classi-
fied purchasers of corrugated sheets and boxes as direct purchasers of
linerboard (which was included in the purchased corrugated sheets and
boxes), because the linerboard was subject to a price-fixing agreement.
305 F.3d 145, 158-60 (3d Cir. 2002) (“Illinois Brick . . . bans Clayton Act
lawsuits by persons who are not direct purchasers from the defendant anti-
trust violator.”). Similarly, the Seventh Circuit has held that “the first pur-
chaser[ ] from outside the conspiracy” may sue. Paper Sys. Inc. v. Nippon
Paper Indus. Co., 281 F.3d 629, 631-32 (7th Cir. 2002). Thus, these cases
restrict Illinois Brick’s influence by allowing an exception when the direct
purchaser conspires with the seller, even though the price illegally set is
an upstream cost that is passed-on to the plaintiffs. This contradicts the
Supreme Court’s admonition “not to ‘carve out exceptions to the [direct
purchaser] rule for particular types of markets.’ ” Utilicorp, 497 U.S. at
216 (quoting Illinois Brick, 431 U.S. at 744).
8018 IN RE ATM FEE ANTITRUST LITIGATION
[11] Based on our precedent in Kendall and Shamrock
Foods, we recognize the co-conspirator exception only when
the conspiracy involves setting the price paid by the plaintiffs.
Therefore, as the district court concluded, the exception does
not apply, because the theory of recovery depends on pass-on
damages. We decline to extend the co-conspirator exception
further. As in Kendall, Plaintiffs “run into the Illinois Brick
wall,” because Plaintiffs do not pay interchange fees directly
and the Bank Defendants independently set foreign ATM
fees.
3. Ownership and Control and Freeman’s “No Realistic
Possibility that Direct Purchasers Will Sue”
Royal Printing allowed indirect purchasers to sue “where a
direct purchaser is a division or subsidiary of a co-
conspirator.” 621 F.2d at 326. Royal Printing created an
exception when parental control existed, because applying
Illinois Brick “would eliminate the threat of private enforce-
ment,” id. at 326 n.7, and “close off every avenue for private
enforcement,” id. at 327. “The co-conspirator parent will for-
bid its subsidiary or division to bring a lawsuit that would
only reveal the parents own participation in the conspiracy.”
Id. at 326. In our case, neither Bank Defendants nor STAR are
divisions or subsidiaries of the other. However, Plaintiffs
argue that the exception in Royal Printing should, as con-
strued in Freeman, 621 F.2d at 1145-46, apply in any event.
We disagree.
[12] Freeman, citing Royal Printing, enunciated the excep-
tion as follows: “[I]ndirect purchasers can sue for damages if
there is no realistic possibility that the direct purchaser will
sue its supplier over the antitrust violation.” Freeman, 322
F.3d at 1145-46. However, Freeman did not create a new
variation of the Royal Printing exception, because Freeman
relied on ownership and control to find standing. Id. at 1146
(“The associations own Sandicor . . . , [t]hey appoint its board
of directors, and they are accused of conspiring with it.”); id.
IN RE ATM FEE ANTITRUST LITIGATION 8019
at 1146 n.12 (“Royal Printing applies because the associations
own Sandicor.”). In Freeman, the co-conspiring realtor asso-
ciations owned and controlled Sandicor (the direct purchaser)
and had the power to appoint Sandicor’s board of directors.
Id. Thus, in Freeman, we found no realistic possibility of suit,
because the associations owned and controlled the direct pur-
chaser.8 Id. at 1146. Therefore, Freeman outlines that,
whether a realistic possibility of suit exists, depends on the
existence of ownership or control between the direct pur-
chaser and the seller. See, e.g., Royal Printing, 621 F.2d at
326 n.7 (“[I]f Royal Printing is . . . barred [from suing], and
the controlled wholesalers will not sue, the appellees’ transac-
tions would be immune from private antitrust enforcement.”
(emphasis added)).
We do not overlook that Plaintiffs argue that there is no
realistic possibility that the Bank Defendants will sue STAR
or their co-defendants, because the district court preliminarily
denied the Defendants’ motion to dismiss (on September 4,
2009) on such grounds. In re ATM Fee Antitrust Litig., 768
F. Supp. 2d at 991-92. However on summary judgment (with
more information in the record than at the time of the motion
to dismiss), the district court subsequently found a lack of
standing, because there was a realistic possibility of suit by
pure-payer (and net-payer) direct purchasers of the inter-
change fee.9 In re ATM Fee Antitrust Litig., 2010 WL
3701912.
8
Freeman concludes the paragraph discussing the exception by stating
that “[t]here’s no realistic possibility Sandicor will sue them,” but in the
corresponding footnote the court finds Royal Printing applicable because
of the associations ownership of Sandicor. 322 F.3d at 1146 n.12.
9
We do not rely on the same reasoning as the district court, because
Royal Printing may cast some doubt on the district court’s conclusion. In
Royal Printing, we found that the plaintiffs had standing to sue for the pur-
chases they had made from wholesalers controlled by the paper manufac-
tures even though the plaintiffs also made purchases from independent
wholesalers. Royal Printing, 621 F.2d at 324, 327-28.
8020 IN RE ATM FEE ANTITRUST LITIGATION
[13] In Royal Printing and Freeman, the ownership or con-
trol of the direct purchasers by the conspiring sellers created
no realistic possibility of suit. Here, Plaintiffs do not allege
that STAR owns or controls Bank Defendants or that Bank
Defendants own or control other Bank Defendants. Thus, this
case does not involve a lack of a realistic possibility of suit
because of the seller (STAR) prohibiting the direct purchasers
(Bank Defendants) from suing through its ownership or con-
trol, as found in Royal Printing and Freeman. Instead, this
case deals with whether a realistic possibility of suit exists
when a direct purchaser conspires with the seller to set a cost
passed-on to Plaintiffs. We decline to extend the exception
noted in Royal Printing and Freeman to situations where the
seller does not own or control the direct purchasers, because,
after Royal Printing, the Supreme Court stated that “[t]he pos-
sibility of allowing an exception, even in rather meritorious
circumstances, would undermine the rule.” Utilicorp, 497
U.S. at 216; see 2A Phillip E. Areeda et al., Antitrust Law ¶
346h (“[T]he Supreme Court . . . has thus far been indifferent
to the question whether the direct purchaser is likely to sue
. . . .”).
Plaintiffs argue that Bank Defendants owned or controlled
STAR. The applicable statute does not define control. There-
fore, we construe it in its ordinary, contemporary, and com-
mon meaning. United States v. Bennett, 621 F.3d 1131, 1139
n.2 (9th Cir. 2010). Control means “ ‘to exercise restraint or
direction over; dominate, regulate, or command,’ ” id. (quot-
ing Webster’s College Dictionary 297 (Random House
1991)), or to have “the ‘power or authority to guide or man-
age,’ ” id. (quoting Webster’s New Collegiate Dictionary 285
(9th ed.1983)).
[14] Plaintiffs’ outline sources purported to show that
Bank Defendants’ ownership and control of STAR foreclosed
a realistic possibility of suit. However, Bank Defendants did
not control STAR after Concord, a publicly owned Delaware
IN RE ATM FEE ANTITRUST LITIGATION 8021
corporation, purchased STAR on February 1, 2001.10 Former
stockholders of STAR owned, in aggregate, approximately
ten percent of Concord’s outstanding common stock after the
merger. Because of Concord’s widely disbursed ownership
and Bank Defendants’ small ownership percentage, Bank
Defendants had insufficient ownership interests to control
Concord and thus STAR. Cf. Weinstein Enters., Inc. v. Orloff,
870 A.2d 499, 506-08 (Del. 2005) (in finding that a fiduciary
duty exists, a shareholder must have control of the affairs of
the corporation, which does not exist unless the shareholder
owns a majority of the stock or has actual control over the
corporation’s conduct); Kaplan v. Centex Corp., 284 A.2d
119, 122-23 (Del. Ch. 1971) (“A plaintiff who alleges domi-
nation of a board of directors and/or control of its affairs must
prove it. Stock ownership alone, at least when it amounts to
less than a majority, is not sufficient proof of domination or
control.” (citation omitted)). Moreover, the language added to
STAR’s agreement with its members does not create control,
because (1) it is a negotiated agreement between STAR and
its members, and (2) STAR still has the ultimate power to
change interchange fees based on market conditions. The lan-
guage essentially protects Bank Defendants from arbitrary
changes, but Concord has the power to change interchange
fees if changes are reasonably related to prevailing market
conditions. Likewise, the Network Advisory Board (com-
posed of large member banks like Bank Defendants) does not
create control, because it had no power to set interchange fees
or to control Concord’s board. The Network Advisory Board
has influence, because it represents the views of large member
banks. However, input on policies and pricing issues by inter-
ested members does not constitute the type of control neces-
sary to meet the exception to Illinois Brick. See Freeman, 322
10
As for the time period from July 2, 2000, to February 1, 2001, there
are no allegations that Bank Defendants controlled one another or con-
spired to fix foreign ATM fees. As such, the concern in Royal Printing of
a controlling party prohibiting the direct purchaser from suing is not pres-
ent here.
8022 IN RE ATM FEE ANTITRUST LITIGATION
F.3d at 1145-46 (control existed from ownership); cf. Werner
v. Miller Tech. Mgmt., L.P., 831 A.2d 318, 328 (Del. Ch.
2003) (“The ability to offer ideas [by the Advisory Board]
cannot be construed as an ability to manage the affairs of
Interprise.”). As a Delaware corporation, Concord’s board of
directors has the power, authority, and responsibility to man-
age the corporation. Del. Code Ann. tit. 8, § 141. Therefore,
to control STAR, the Bank Defendants must have had control
of Concord’s board of directors, which is not demonstrated
here.
CONCLUSION
[15] For these reasons, we AFFIRM the district court’s
summary judgment. Plaintiffs lack standing to seek damages
for the alleged antitrust violations.