Antitrust Law Daily Wrap Up, ANTITRUST—N.D. Cal.: Card issuers get class certification in suit against Apple alleging Apple Pay monopoly, (Sep 28, 2026)

By Donielle Tigay Stutland, J.D.

The court certified a class of U.S. financial institutions that issued an Apple Pay-enabled card and paid Apple a transaction fee.

The federal district court in Oakland, California certified a class of U.S. financial institutions that issued an Apple Pay-enabled card and paid Apple a transaction fee in a class action suit brought by payment card issuers alleging that Apple Inc. violated the Sherman Act by unlawfully tying together its mobile devices and its mobile wallet and by unlawfully monopolizing and attempting to monopolize the market for tap-and-pay mobile wallets on iOS. The court concluded that the plaintiffs satisfied both the Rule 23(a) and 23(b)(3) prerequisites for certification. The court also denied a motion filed by Apple to exclude the card issuers’ expert, after finding that his market-definition and yardstick damages methods were accepted methodologies, and that “Apple’s dispute with the plaintiffs’ expert goes merely to the weight of his opinion and not its admissibility under Daubert” (Affinity Credit Union v. Apple Inc., No. 4:22-cv-04174-JSW (N.D. Cal. Sep. 23, 2026)).

Background. Affinity Credit Union, GreenState Credit Union, and Consumers Co-Op Credit Union filed a complaint against Apple alleging that Apple unlawfully monopolized the market for tap-and-pay mobile wallets for its iOS systems. Their complaint alleges that Apple developed a mobile wallet, Apple Pay, which works with Near Field Communication chips in iOS devices for tap-and-pay transactions. Plaintiffs are financial institutions that contract with Apple to enable their payment cards (e.g., credit cards) for use on Apple Pay. Plaintiffs allege that Apple has stifled competition to secure an unlawful monopoly for Apple Pay, and charges Plaintiffs and other financial institutions supracompetitive transaction fees.

The plaintiffs filed a motion to certify the following class under Federal Rule of Civil Procedure 23: All U.S. entities that (a) issued any Payment Card enabled for Apple Pay and (b) paid Apple a fee for Apple Pay transactions on that Payment Card.

The plaintiffs also proffered an expert to testify regarding common proof capable of establishing that Apple maintains monopoly power in a relevant antitrust aftermarket for tap-and-pay iOS mobile wallets as well as a broader market for all mobile wallets. Their expert uses common evidence to model the impact of Apple’s challenged restraints on all class members and uses a common yardstick model to estimate the amount of damages suffered. Apple moves pursuant to Federal Rule of Evidence 702 and Daubert to exclude his testimony.

Certification. The court began its analysis by looking at whether the plaintiffs met their burden of meeting the Rule 23(a) prerequisites. First, the court looked at numerosity. The plaintiffs estimated that the proposed class will consist of thousands of members. As Apple did not contest numerosity, the court found that numerosity has been satisfied.

The court also determined that commonality was satisfied. Here, the claims of the proposed class stem from the same central issue of Apple charging fees to issuers for their use of Apple Pay. Common questions predominate, such as whether Apple has monopoly power, and in what relevant market, and whether the company has engaged in anticompetitive conduct, and whether the class has been affected. The court found that the proposed class shares sufficient commonality to satisfy the requirements of Rule 23(a)(2).

The court also found the typicality requirement under Rule 23(a)(3) was satisfied. The claims all arise from Apple’s conduct setting fees for processing using Apple Pay. Plaintiffs assert the same theory of injury regarding all members of the proposed class, arising from the same course of conduct, under the same legal theories. The court also concluded that the plaintiff has satisfied the adequacy prong, as the plaintiffs claim to have no conflicts with proposed class counsel and they have demonstrated that they will prosecute this action vigorously.

Turning to Rule 23(b)(3), the court also concluded that the plaintiffs met their burden of showing predominance and superiority. First, the court indicated that common questions predominate. In order to prevail on their Sherman Act claims, the plaintiffs must define the relevant antitrust market. The court noted that “this question is inherently a common question that will bind the entire class.” In addition to the relevant market and Apple’s monopoly power, the court found that the issue of whether Apple engaged in anticompetitive conduct is also a common question. The element of anticompetitive conduct is what makes for a “willful acquisition or maintenance of [monopoly] power” that the Sherman Act prohibits. In addition, court detailed that the issue of the impact or antitrust injury on the class is considered a common issue. Here, Apple charges the same standardized uniform prices across the class, so proof that the prices are supracompetitive will demonstrate classwide impact. Finally, the court determined that with regard to damages, at class certification, the plaintiffs need only show that “damages are capable of measurement on a classwide basis.” The court determined that the measure of damages is a classwide issue.

The court also found superiority was satisfied. The court stressed that the case can be efficiently prosecuted through class representatives; no individual class members have shown any interest in pursuing individual litigation or has initiated an individual action in any other forum. The court found case management of a class action to be the most efficient means of litigating and will avoid the potential of thousands of duplicate lawsuits.

Expert testimony. Next, the court reviewed Apple’s motion to exclude the testimony of Dr. Vellturo pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. Here, the court first explained that Dr. Vellturo’s yardstick analysis assesses whether the price of an Apple Pay transaction is higher than the competitive price of $0 for a comparable tap-and-pay transaction in a comparable market. The court found that Apple’s “criticism of Dr. Vellturo’s analysis bears on his conclusions and not his methodology.” The court stressed that the “expert applies mainstream methodologies widely accepted in antitrust economics.” The court noted, “Apple does not dispute the methodologies selected by Dr. Vellturo, but rather takes issue with his conclusions.” “When the methodology is sound, and the evidence relied upon sufficiently related to the case at hand, disputed about the degree of relevance or accuracy (above this minimum threshold) may go to the testimony’s weight, but not its admissibility.”

After finding that here Apple’s dispute with the plaintiffs’ expert goes merely to the weight of his opinion and not its admissibility under Daubert, the court denied the motion to exclude Dr. Vellturo’s testimony.

The Case is No. 4:22-cv-04174-JSW.

Judge: White, J.

Attorneys: Steve W. Berman (Hagens Berman Sobol Shapiro LLP) for Affinity Credit Union. Belinda S. Lee (Latham & Watkins LLP) for Apple Inc.

Companies: Affinity Credit Union; Apple Inc.

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