March 29, 2017 Top Story

Supreme Court Dismisses Bait-and-Switch Between Petition and Brief

Appeals dismissed when merits brief argued different issue than petition of certiorari

By Joseph Laizure

The U.S. Supreme Court dismissed two appeals set for oral argument because petitioners "persuaded [the court] to grant certiorari" on one issue but "chose to rely on a different argument" in their brief. The court sent a strong signal to attorneys to focus on the question the court agreed to hear, say ABA Section of Litigation leaders.

In Visa, Inc. v. Osborn and Visa, Inc. v. Stoumbos consumers and independent ATM operators sued a larger ATM network over access fee rules set by the network. The U.S. Court of Appeals for the D.C. Circuit reversed the district court's dismissal of the complaints. The courtF held the consumers and ATM operators had sufficiently alleged an illegal agreement between the ATM network's member banks under Section 1 of the Sherman Act. Seeking certiorari, the ATM network petitioned the Supreme Court for review.

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