IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
UNITED STATES OF AMERICA,
Plaintiff,
v.
ELECTRONIC PAYMENT SERVICES, INC.
Defendant.
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Civ. No.
FINAL
JUDGMENT
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WHEREAS Plaintiff, United States of America, having filed its Complaint in this action
on April 21, 1994, and plaintiff and defendant, by their respective attorneys, having consented to
the entry of this Final Judgment without trial or adjudication of any issue of fact or law; and
without this Final Judgment constituting any evidence or admission by any party with respect to
any issue of fact or law;
AND WHEREAS defendant has agreed to be bound by the provisions of this Final
Judgment pending its approval by the Court;
NOW, THEREFORE, before any testimony is taken, and without trial or adjudication of
any issue of fact or law, and upon consent of the parties, it is hereby
ORDERED, ADJUDGED AND DECREED as follows:
1.
JURISDICTION
This Court has jurisdiction of the subject matter of this action and of the person of the
defendant. The Complaint states a claim upon which relief may be granted against the defendant
under Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2.
2.
DEFINITIONS
As used in this Final Judgment:
- "Defendant" and "EPS" means defendant Electronic Payment Services, Inc., its
divisions, subsidiaries, affiliates, agents, officers, employees, successors and
assigns, and without restriction means the business currently known as "Money
Access Service" or "MAC," its employees, agents, officers, and any successor or
assign of that business or any significant portion of the assets of that business.
"Defendant" also includes all persons made subject to this Final Judgment
pursuant to Section III hereof.
- "ATM" means automatic teller machine, a machine typically owned and
deployed by a depository institution, and used by depositors of that institution and
others to withdraw cash and, in certain configurations, to perform one or more of
the following additional functions: account inquiry, payment authorization,
transfer or deposit.
- "ATM network" means an arrangement whereby more than one ATM and more
than one depository institution (or the deposit records of such depository
institutions) are interconnected by electronic or telecommunications means, to one
or more computers, processors or switches for the purpose of providing ATM
services to the retail customers of depository institutions.
- "ATM processing" means providing the data processing services and
telecommunications facilities and services used:
1. to operate, monitor and support the operation of ATMs deployed by a
depository institution;
2. to connect the ATMs deployed by a depository institution to that institution's
deposit authorization records, for authorization and confirmation of "on-us transactions,"
and the record-keeping and other functions related to such transactions; and
3. to connect the ATMs deployed by a depository institution to one or more
branded ATM networks for authorization and confirmation of "on-others transactions,"
and the record-keeping and other functions related to such transactions.
ATM processing can be provided as a service distinct from branded ATM network access, and
can be performed in the facilities of the ATM switch, a depository institution's own facilities, or
in the facilities of a data processing service organization.
- "ATM switch" means a telecommunications and data processing facility used to
receive and route transactions from ATMs or ATM processors to data processing
facilities used by depository institutions to authorize ATM transactions. A "MAC
switch" is an ATM switch operated by or on behalf of, or providing such
functionality for branded ATM network access to, the MAC or any successor
branded ATM network controlled by defendant.
- "Authorization processing" means providing the data processing services and
telecommunications facilities and services used to connect a branded ATM
network to a depository institution's deposit authorization records, for
authorization and confirmation of ATM transactions, and the record-keeping and
other functions related to such transactions.
G. "Branded ATM network access" means access to an ATM network identified by a
common trademark or logo displayed on ATMs and ATM cards, and includes the offering for
sale of the ability for an ATM card holder with an account at one member depository institution
to request withdrawal, deposit, payment authorization, transfer or account inquiry transactions at
an ATM identified by a network's trademark or logo owned by another member depository
institution; transaction switching by an ATM switch; and the right to brand ATMs or ATM cards
with the trademark or logo of an ATM network.
H. "Depository institution" means a bank, savings bank, savings and loan association,
credit union or other institution authorized by federal or state law to take deposits. For the
purpose of this Final Judgment, "depository institution" also includes any other member of a
branded ATM network operated by defendant that also deploys ATMs within that network.
I. "Intercept processor" means a depository institution that provides ATM processing for
itself.
J. "MAC" means Money Access Service, the branded ATM network owned, controlled
and operated by EPS, or any successor brand to "MAC."
K. "MAC Midwest Platform" means MAC's data facility (or facilities) that on October 1,
1994, provides branded ATM network access to depository institutions located in the States of
Illinois, Indiana, Kentucky, Michigan, Ohio and Tennessee, and at least the greater number of the
depository institutions in the State of West Virginia that are branded ATM network customers of
defendant.
L. "Person" means any natural person, corporation, firm, company, sole proprietorship,
partnership, association, institute, governmental unit, or other legal entity.
M. "Third party processor" means any person that currently or in the future offers ATM
processing services to depository institutions. Third party processors may include both
depository institutions providing ATM processing for other depository institutions and firms
unaffiliated with depository institutions that provide such services. A third party processor is
"qualified" within the meaning of this Final Judgment if it is qualified within the meaning of
Section IV.E below.
3.
APPLICABILITY
This Final Judgment shall apply to defendant and each of its affiliates, subsidiaries,
officers, directors, employees, agents, successors, and assigns; to any successor to any substantial
part of the MAC business; to any entity that controls defendant as control currently is defined
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and its implementing
regulations (see 16 C.F.R. § 801.1(b)); and to all persons acting in concert with defendant and
having actual notice of this Final Judgment.
4.
PROHIBITED CONDUCT
Defendant is permanently enjoined and restrained as follows:
- Defendant shall not require any depository institution that obtains branded ATM
network access from defendant to obtain any ATM processing or authorization
processing from defendant. Defendant shall not maintain or enforce any rule,
policy, contract, agreement or arrangement pursuant to which defendant requires
any depository institution to obtain ATM processing or authorization processing
from defendant; that prohibits or purports to prohibit a depository institution from
obtaining ATM processing or authorization processing from any third party
processor; or that conditions MAC membership or availability of MAC or any
successor branded ATM network access on any depository institution's obtaining
ATM processing or authorization processing from defendant or not obtaining
ATM processing or authorization processing from a qualified third party
processor.
- Defendant shall not sell or contract to sell access to, membership in, or switching
of transactions by the MAC or any successor branded ATM network controlled by
defendant, on the condition, agreement, or understanding that the purchaser
thereof shall not use or purchase ATM processing or authorization processing
services from any other person.
- Defendant shall not establish as any condition, agreement, or understanding with
respect to access to, membership in, or switching of transactions by the MAC or
any successor branded ATM network controlled by defendant, or the price or
terms of such access, membership, or switching, that the purchaser thereof shall
not use or purchase ATM processing or authorization processing services from
any other person. Defendant shall not impose any additional fees on any
depository institution based on its obtaining ATM processing or authorization
processing from any person other than defendant, except that defendant may
impose additional fees for set-up and establishment of the network. Defendant
will not require an unreasonable amount of set-up and establishment testing and
certification. The aggregate of set-up and/or establishment fees charged to a
depository institution, as allowed by this paragraph, and /or its third party
processor, as allowed by paragraph IV.E.2 of this Final Judgment, shall not
exceed $100 per person hour expended by Defendant up to a maximum of $1,000
unless significant difficulties that require additional work are caused by the third
party processor or the depository institution. In such case, Defendant will charge
$100 per hour for the next 40 person hours and $250 per hour for each additional
hour that it expends. The hourly rates and maximum fees set forth in this
paragraph may be adjusted over the term of this Final Judgment in accordance
with the Consumer Price Index.
- Defendant shall not restrict in any manner, directly or indirectly, the ability of a
depository institution to obtain ATM processing or authorization processing for
access to the MAC or any successor branded ATM network controlled by
defendant from any qualified third party processor. Defendant shall not require
any depository institution that obtains ATM processing or authorization
processing from a third party processor to obtain any other service that is not
required to provide such ATM or authorization processing from that processor or
from any other person.
- Defendant shall provide qualified third party processors with nondiscriminatory
branded ATM network access to the MAC or any successor branded ATM
network controlled by defendant that is at least equal in type and quality to the
access defendant (a) provides to intercept processors, and (b) provided to intercept
processors as of the date of the commencement of this action. Defendant shall not
deny any qualified third party processor access to telecommunications ports or
links necessary for the third party processor to provide ATM processing or
authorization processing for depository institutions obtaining ATM network
access from defendant. Defendant shall permit qualified third party processors to
aggregate transactions of multiple banks over one or several telecommunications
links and ports as technically reasonable, and defendant shall not require third
party processors to obtain a separate link or port for each of its depository
institution customers. A third party processor is qualified, within the meaning of
this Final Judgment, if it completes defendant's certification process and meets:
1. the technical, financial and operating criteria for intercept processors and third
party processors that provide services to only one depository institution established by
defendant and in effect as of the date of commencement of this action, or such other
reasonable and nondiscriminatory technical, financial and operating criteria for intercept
processors and third party processors hereafter established by defendant; and
2. such additional technical criteria regarding transaction information transmitted
and the format for transmission of such information as is reasonably appropriate for third
party ATM processing for unaffiliated multiple banks. No such criteria shall distinguish
or discriminate between intercept processors and third party processors, except that
volume discounts may be offered in a nondiscriminatory manner as provided in paragraph
IV.G of this Final Judgment. Defendant shall not require any third party processor to
satisfy additional certification requirements, or pay additional certification fees (other
than reasonable set-up fees), by reason of its seeking or obtaining the business of
additional customers as long as the processor elects to employ for these additional
customers a message format/communications protocol combination for which defendant
already has certified the processor.
Notwithstanding the foregoing, Defendant is not required to certify as a qualified processor any
branded ATM network that is dominant on a state-wide basis or a subsidiary of such network that
seeks to become a qualified processor in the MAC or any successor branded ATM network
controlled by Defendant unless reciprocal access to become a processor in that network is
available on a substantially similar basis as to pricing and terms to all qualified third party
processors including other branded ATM networks that offer third party ATM or authorization
processing to depository institutions.
- Defendant shall not terminate any third party processor's access to the MAC or
any successor branded ATM network controlled by defendant except on written
notice to the processor thirty (30) days before such termination, except that
Defendant can terminate any processor immediately if that processor: (1) fails to
pay at any time specified fees, charges or other amounts due and owed to
defendant or any participant in defendant's branded ATM network; (2) violates
any law or government regulation applicable to it that has adverse effect upon the
MAC or any successor branded ATM network controlled by defendant; (3) has a
bankruptcy or insolvency proceeding filed against it; or (4) appoints or has
appointed by court order a trustee or receiver for any substantial part of its
property. Defendant shall provide a copy of any notice of termination to the
Antitrust Division of the Department of Justice, to the attention of counsel of
record or their named successors. Any termination in violation of this Final
Judgment shall constitute a contempt of this Court and be punishable thereby.
- Defendant shall not discriminate in the pricing of branded ATM network access
to the MAC or any successor branded ATM network controlled by defendant on
the basis of a customer's choice of ATM processor, but shall offer branded ATM
network access on a nondiscriminatory basis, except that:
1. Defendant may offer volume discounts on branded ATM network access fees
on a nondiscriminatory basis, provided that defendant shall permit any depository
institution or third party processor for a depository institution to aggregate that
institution's transaction volume delivered to a MAC switch, and any such depository
institution shall be entitled to any such nondiscriminatory volume discount. Defendant
shall not offer volume discounts to a depository institution operating as an intercept
processor that are more favorable than those offered to a depository institution that
obtains ATM or authorization processing from a qualified third party processor.
2. Defendant shall be permitted to offer depository institutions the option of
obtaining transaction switching between member depository institutions by third party
processors at nondiscriminatory royalties that shall not be greater than the price for
switched transactions.
3. Defendant shall provide branded ATM network access pursuant to a
nondiscriminatory price schedule applicable at least to depository institutions located in
the States of Pennsylvania, New Jersey, and Delaware. Defendant's provision of branded
ATM network access in States other than Pennsylvania, New Jersey, and Delaware,
pursuant to a nondiscriminatory price schedule in one State, shall not be deemed to be
discriminatory by reason of the use of a different price schedule in another State.
- Defendant shall not restrict in any manner the ability of a depository institution
to obtain branded ATM network access through qualified third party processors or
through their own intercept processor facilities to multiple providers of branded
ATM network access. Defendant shall not condition its provision of branded
ATM network access on a depository institution's not obtaining branded ATM
network access from any other person. Defendant shall not sell or contract to sell
access to, membership in, or switching of transactions by any branded ATM
network controlled by defendant, on the condition, agreement, or understanding
that the purchaser thereof shall not use or purchase branded ATM network access
from any other person, or establish a price for, discount from, or rebate upon
access to, membership in, or switching of transactions by the MAC or any
successor branded ATM network controlled by defendant, on the condition,
agreement, or understanding that the purchaser thereof shall not use or purchase
branded ATM network access from any other person. Defendant shall in no
manner restrict any depository institution ATM deployer that chooses to be
affiliated with multiple ATM networks from displaying multiple ATM network
logos on its ATMs. Defendant shall not prohibit any depository institution ATM
card issuer located in the States of Pennsylvania, New Jersey, Delaware, Indiana
or Ohio that chooses to be affiliated with multiple ATM networks from issuing
cards that display multiple ATM network logos. Notwithstanding the preceding,
Defendant may require that its ATM network logo be displayed on ATMs and
ATM cards in equal frequency and prominence as the logos of any other ATM
networks and may restrict the branding of access cards that contain an integrated
circuit computer chip with a stored value function. Defendant shall in no manner
restrict any depository institution ATM deployer from enabling ATMs to function
in multiple ATM networks.
- Notwithstanding the preceding, defendant is not enjoined from entering into an
agreement, not inconsistent with the terms of this Final Judgment, for the
provision of ATM processing or authorization processing to any depository
institution to which defendant has provided actual notice of, and a true copy of,
this Final Judgment. Any such agreement shall be severable from any agreement
to provide branded ATM network access to the MAC or any successor branded
ATM network controlled by defendant.
- The injunctions specified in Sections IV.A through IV.E of this Final Judgment
shall become effective as provided by the terms of this paragraph:
- Defendant shall commence certification of third party processors not later
than January 1, 1995, except that defendant shall commence certification
of processors in the MAC Midwest Platform not later than October 1,
1994.
2. Each third party processor who seeks certification shall be allowed to complete
certification in a reasonably prompt manner and within the range of time common in the
industry, and shall not be denied such resources under the control of defendant (e.g., test
time) as are necessary for certification. Upon a third party processor's completion of
certification, such processor shall be permitted to act as a qualified third party processor
in the MAC network, except that defendant is not required by this paragraph IV.J.2, prior
to January 1, 1995, to permit a third party processor that completes certification in the
MAC Midwest Platform to act as a qualified third party processor for depository
institutions not located in the States of Illinois, Indiana, Kentucky, Michigan, West
Virginia or Ohio, or depository institutions located in the State of West Virginia but not
served by defendant through the MAC Midwest Platform as of the date of
commencement of this action.
3. Sections IV.A through IV.E of this Final Judgment shall be effective and in
force, as to any third party processor and the depository institution customers of such
processor, as of the date upon which such third party processor becomes a qualified third
party processor.
4. Sections IV.A through IV.E of this Final Judgment shall be effective and in
force as of the date of entry of this Final Judgment in any portion of the MAC or any
successor ATM network controlled by defendant in which depository institutions had the
option of using third party multi-bank ATM processors as of January 1, 1993. Defendant
shall not renounce or deny any right that it previously granted to depository institutions to
obtain ATM processing or authorization processing from third party processors.
5. Defendant shall not take steps to prevent or discontinue any existing
arrangements whereby third party processors provide ATM processing or authorization
processing in connection with branded ATM network access as of January 1, 1993.
5.
SANCTIONS
Nothing in this Final Judgment shall bar the United States from seeking, or the Court
from imposing, against any defendant or person any relief available under any applicable
provision of law.
6.
PLAINTIFF ACCESS
- To determine or secure compliance with this Final Judgment and for no other
purpose, duly authorized representatives of the plaintiff shall, upon written request
of the Assistant Attorney General in charge of the Antitrust Division, and on
reasonable notice to the defendant, be permitted:
- access during the defendant's office hours to inspect and copy all records
and documents in its possession or control relating to any matters
contained in this Final Judgment; and
- to interview the defendant's officers, employees, trustees, or agents, who
may have counsel present, regarding such matters. The interviews shall
be subject to the defendant's reasonable convenience and without restraint
or interference from defendant.
- Upon the written request of the Assistant Attorney General in charge of the
Antitrust Division, a defendant shall submit such written reports, under oath if
requested, relating to any of the matters contained in this Final Judgment as may
be reasonably requested.
- No information or documents obtained by the means provided in this Section VI
shall be divulged by the plaintiff to any person other than a duly
authorized representative of the executive branch of the United States, except in the course of
legal proceedings to which the United States is a party, or for the purpose of securing compliance
with this Final Judgment, or as otherwise required by law.
7.
FURTHER ELEMENTS OF DECREE
- Defendant shall provide actual notice and a true copy of this Final Judgment to
each depository institution to which it provides branded ATM network access as
of the date of this Final Judgment.
- Jurisdiction is retained by this Court for the purpose of enabling any of the
parties to this Final Judgment to apply to this Court at any time for further orders
and directions as may be necessary or appropriate to carry out or construe this
Final Judgment, to modify or terminate any of its provisions, to enforce
compliance, and to punish violations of its provisions.
- This Final Judgment shall terminate ten years from the date of entry.
- Entry of this Final Judgment is in the public interest.
DATED:
Wilmington, Delaware
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U.S.D.J.
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