Northern District of California Judge Charles Breyer denied a motion to dismiss in In re: ATM Fee Antitrust Litigation. The plaintiffs allege that the defendants have illegally conspired to set ATM interchange fees at supra-competitive levels and then passing the fees on to consumers as foreign ATM fees. The defendant banks sought to dismiss the complaint on the ground that the Star ATM network in which they all participate did not have a dominant position in the ATM market. The plaintiffs alleged two theories of liability. First, it argued that the Star network formed a relevant market unto itself because consumers were locked into their banks choice of network. The court rejected this argument on the ground that ATM networks compete for the bank’s business, not for consumers. The court denied the motion to dismiss, however, based on a second theory that the banks demonstrated ability to keep interchange fees at supra-competitive levels indicates that Star in fact has market power.