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Justice Sotomayor's Pivotal Antitrust Decision

Posted  September 23, 2009

Though Supreme Court Justice Sonia Sotomayor’s nomination hearings made lots of news, the media didn’t spend much time focusing on her antitrust decisions.  But the nation’s newest justice is no stranger to the Sherman Act.

Constantine Cannon – as Lead Counsel in its groundbreaking debit card litigation – has first-hand experience with Justice Sotomayor’s antitrust jurisprudence.  She authored a pivotal decision that kept the debit card litigation alive and led to the largest federal antitrust settlement in U.S. history.

In 2001, then-Judge Sotomayor wrote the majority opinion for the Second Circuit in the case of In re Visa Check/MasterMoney Antitrust Litigation, 280 F.3d 124 (2d Cir. 2001).  Constantine Cannon was Lead Counsel representing the plaintiffs, who were many of the country’s largest retailers – including Wal-Mart, Sears Roebuck, Circuit City, and Safeway.  The plaintiffs brought a class action against Visa and MasterCard challenging the payment card companies’ policies that forced retailers to accept the payment card companies’ debit cards along with their credit cards.  The retailers’ suit alleged that this “honor all cards” policy constituted an anticompetitive tying arrangement that violated Section 1 of the Sherman Act, and evidenced a conspiracy to monopolize the debit card industry that violated Section 2 of the Sherman Act.

Judge Sotomayor authored the Second Circuit opinion affirming the district court’s holding that certified the class of plaintiffs.  In part as a result of that opinion, the parties reached a final settlement effective June 2005.  The unprecedented settlement required the payment card companies to “untie” their credit cards and debit cards, and to pay billions of dollars to retailers across the country.  Constantine Cannon looks forward to hearing Justice Sotomayor’s voice on antitrust cases in the years to come.

By the way, Lloyd Constantine has just finished writing a book detailing our law firm’s experiences litigating the Visa Check litigation.  (Learn more here.)  A shorter (but less interesting) case summary is available here.

Tagged in: Antitrust Litigation, Antitrust Policy,