Imagine that there's an illegal conspiracy to inflate the fees paid when a consumer uses an ATM machine owned by a different bank than the one in which the consumer holds an account. Imagine also that one of these fees is technically paid by the card-issuing bank, but then is passed on to the consumer. Finally, let's assume that these illegal fees amount to millions -- maybe hundreds of millions -- of dollars.
These are not, by the way, implausible assumptions. At all.
Can you or I sue for the illegal antitrust conspiracy?
The Ninth Circuit holds we can't. Nor can any of the other tens of millions of consumers injured by this illegal conspiracy to violate the Sherman Act.
We can't because we're "indirect purchasers" and it's plausible that the banks themselves -- the only ones with standing -- will sue.
Mind you, the conspiracy has been ongoing since the dawn of the twenty-first century, and many millions of dollars later, the banks still have not actually sued. They're apparently just fine to pass on the costs to all of use, and we're happy to pay them.
But don't worry. It's plausible that they'll sue. And get the money back (and keep it for themselves). And in the meantime, we get to keep paying the passed-on illegal fees.
