Antitrust Law Daily Wrap Up, ANTITRUST—E.D. Va.: Visa, MasterCard dodge conspiracy claims by WikiLeaks host server, (Aug 3, 2015)

By Linda O’Brien, J.D., LL.M.

The federal district court in Alexandria, Virginia has dismissed conspiracy and restraint of trade claims by the host server of the WikiLeaks website against Visa and MasterCard for halting of payment processing of credit card donations to the controversial website (DataCell EHF v. Visa, Inc., July 30, 2015, Lee, G.).

DataCell is an Icelandic corporation that provides server hosting and technical support to companies, including Sunshine Press Productions, the media operator of the WikiLeaks website. Sunshine Press subsists on public donations, made in part via credit cards issued under the Visa and MasterCard brand names. DataCell’s agreement with Sunshine Press allowed it to receive five percent of donations. In October 2010, DataCell and Sunshine Press entered into an agreement with PBS International to process their credit card transactions. In November 2010, Sunshine Press leaked diplomatic cables from the U.S. State Department, causing controversy.

In December 2010, financial services companies, Visa and MasterCard, instructed PBS to cease payment processing from their cards in support of DataCell due to its relationship with Sunshine Press. DataCell filed suit against Visa and MasterCard, alleging that the two companies conspired to restrain trade in violation of the Sherman Act. Both companies moved to dismiss the complaint.

Personal jurisdiction. The court determined that it lacked personal jurisdiction over MasterCard, since the company had no contacts and conducts no business with the forum state. None of the alleged harm occurred in Virginia, and neither defendant was at home in the state.

Standing. DataCell could not establish injury or redressability necessary for Article III standing. DataCell’s argument that the credit card companies injured the media market by suppressing the marketplace of ideas was rejected. The court noted that DataCell’s alleged loss of five percent of Sunshine Press’ donations was speculative and unsupported. Even if DataCell had received money from Sunshine Press donations in the past, there was no guarantee that DataCell would receive money in the future. Furthermore, it was unclear how the court would go about restocking the “marketplace of ideas” or calculating theoretical donations to a controversial website.

Sufficiency of claim. Finally, DataCell failed to plead sufficient facts to plausibly state a claim under the Sherman Act. According to the court, a statement of parallel conduct was insufficient to show a concerted effort. Without further circumstances pointing toward a “meeting of the minds,” an account of the defendants’ commercial efforts was not enough to show the existence of an agreement or a restraint of trade, the court concluded.

The case is No. 1:14-cv-01658.

Attorneys: Jesse R. Binnall (Harvey & Binnall PLLC), and Philip John Harvey (Law Offices of Philip J.Harvey PLLC) for DataCell EHF. Jacob Stephen Siler (Gibson Dunn & Crutcher LLP) for Visa Inc. Peter Hugh White (Schulte Roth & Zabel LLP) for Visa Europe Ltd. Stephen Edward Noona (Kaufman & Canoles, PC) for MasterCard Inc.

Companies: DataCell EHF; Visa, Inc.; Visa Europe Ltd.; MasterCard Incorporated

Cases: Antitrust VirginiaNews