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iv

PAGE

National Bank Act (McFadden Act), 12 U.S.C.

§ 36(c) (as amended 1933)

Passim

National Bank Act (McFadden Act), 12 U.S.C.

§ 36(d) (as amended 1933)

9

National Bank Act (McFadden Act), 12 U.S.C.

§ 36(e) (as amended 1933)

9

National Bank Act (McFadden Act), 12 U.S.C.

§ 36(f) (as amended 1933).

9, 10

National Bank Act, 12 U.S.C. § 51 (as amended

1933).

9

Savings & Loan Associations Act, 12 U.S.C.

8 1464(b) (1), as amended by 12 U.S.C. $ 3509 (1980)

20

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13

69 Fed. Res. Bull. 639 (1983).
Letter from Richard V. Fitzgerald, Letter No. 160,

(1981-1982 Transfer Binder) Fed. Banking L.
Rep. (CCH) 185,241

12

V

PAGE

- Letter of July 7, 1980 from John E. Shockey

11981–82 Transfer Binder) Fed. Banking L. Rep.
(CCH) 185,234 (1980)

13

15

Letter of October 18, 1979 from Richard V.

Fitzgerald (1981–82 Transfer Binder) Fed. Bank

ing L. Rep. (CCH) 185,208 (1979)
Letter of October 19, 1977 from John E. Shockey

(1977–78 Transfer Binder) Fed. Banking L. Rep.
(CCH) 85,050 (1977)

15

Letter of October 3, 1977 from Richard V.

Fitzgerald (1977–78 Transfer Binder) Fed. Bank

ing L. Rep. (CCH) 185,060 (1977) Letter of April 25, 1977 from Richard V. Fitzgerald

(reprinted in Addendum)

15

12

Other Authorities

D. I. Baker & N. Penney, The Law of Electronic

Fund Transfer Systems, 16.02[5] (Supp. 1983,
D. I. Baker & R. E. Brandel). .

17

19

D. I. Baker & N. Penney, The Law of Electronic

Fund Transfer Systems, 122.01(2) (Supp. 1983,

D. I. Baker & R. E. Brandel).
Geographic Restrictions on Commercial Banking

The Report of the President, Dep't of the Treas

ury (1981).
V. M. Bennett and D. Sabbarese, “Shared ATM

Networks: The Nation and the Southeast," Ec.
Rev. (Dec. 1982)

18

18 vi

PAGE

B. A. Burchfield, "Shared Networks: the Foun

dation for the Future of Electronic Banking,' The Magazine of Banking

Banking Administration (Feb. 1984).. J. C. Dean, “Franchising: A Strategic Alternative

for Financial Institutions,The Magazine of Banking Administration (Nov. 1983)

16

16

16

16

S. D. Felgran, "Shared ATM Networks: Market

Structure and Public Policy,New England Ec.

Rev. (Jan./Feb. 1984). ...
R. Trigaux, “Technology Seen as Key Strategy Is-

sue; Concern Over Control, Profits Expressed at
Retail Meeting," American Banker (Mar. 16,

1983).. "EFT in the United States,The Final Report of the

National Commission on Electronic Fund Trans

fers (Oct. 28, 1977).. “Shared ATM Networks are Proliferating," Bank

ing Expansion Reporter (Oct. 19, 1983) Bank Network News, 1984 Network Directory

(Sept. Oct. 1983) Bank Network News, 1984 Network Directory

(Sept. 1983)

18

17

16-17

17

Bank Network News, vol. 2, no. 3 (June 1983)

17

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Nos. 84-7424,48

INDEPENDENT BANKERS ASSOCIATION OF

NEW YORK STATE, INC.
THE CANANDAIGUA NATIONAL BANK AND
TRUST COMPANY,

Plaintiffs-Appellees,

Cross-Appellants,

I'S.

MARINE MIDLAND BANK, N.A.,
WEGMAN'S FOOD MARKETS, INC..

Defendunts,
MARINE MIDLAND BANK, N.A.,

Defendant-Appellant,

Cross-Appellee, WEGMAN'S FOOD MARKETS, INC.,

Defendant-Cross-Appellee.

ON APPEAL FROM A JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK

BRIEF OF AMICUS CURIAE
MASTERCARD INTERNATIONAL INC.

This brief amicus curiae is filed on behalf of MasterCard International Inc. ("MasterCard'') in order to assist the Court in its consideration of the issues raised in the above appeal. MasterCard submits that the United States District Court's judgment and order should be reversed.

2

Statement of Issues and Statement of the Case

MasterCard refers the Court to the brief of Marine Midland Bank, N.A. for the Statement of Issues and Statement of the Case.

Preliminary Statement This is an appeal from the District Court's judgment and order enjoining Marine Midland Bank, N.A. (“Marine") from allowing its customers to use an automated teller machine (ATM'), owned by Wegman's Food Markets, Inc. (Wegman's”), to make deposits, withdrawals or cash advances from their Marine accounts. The District Court ruled that the ATM was a branch of Marine under Section 36 of the National Banking Act, 12 U.S.C. § 36 (the “McFadden Act”). The ATM had been established as part of a chain of ATMs at shopping center locations selected and owned by Wegman's.' The ATM was available for use by the customers of banks other than Marine. In fact, other banks (including a New York state-chartered bank) had made arrangements to use it through their participation in one of two ATM networks.

In its opinion, the District Court committed reversible error by failing to follow the established legal test for determining the McFadden Act's application to ATMs. See, e.g., Independent Bankers Ass'n of America v. Smith (IBAA"), 534 F.2d 921 (D.C. Cir.), cert. denied, 429 U.S. 862 (1976). In IBAA, the District of Columbia Circuit interpreted the McFadden Act to contain a three-part test for determining when an ATM is a branch”. Under that test, an ATM is deemed a branch of a national bank if (i) the ATM provides

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1 See Affidavit of Mark Kindig in Support of Defendant Wegman's Food Markets, Inc. at 112, 4, Joint Appendix at 122.

2 See Affidavit of Mark A. Zalewski in Support of Cross-Motion for Summary Judgment at I 11, Joint Appendix at 117; Affidavit of Mark Kindig in Support of Defendant Wegman's Food Markets, Inc. at 18 2, 4, Joint Appendix at 122. Indeed, the appellee Canandaigua National Bank and Trust Company could have used the Wegman's ATM if it wished. Id.

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