NRF Exploring Legal Options After Preliminary Approval of Swipe Fee Settlement

  NRF Exploring Legal Options After Preliminary Approval of Swipe Fee

Business Wire

WASHINGTON -- November 09, 2012

The National Retail Federation today said it will explore all legal options
following a judge’s preliminary approval of a proposed class-action settlement
of an antitrust lawsuit over the $30 billion a year in credit card swipe fees
charged by Visa and MasterCard.

“We respectfully disagree with the court’s assessment of the proposed
settlement,” NRF Senior Vice President and General Counsel Mallory Duncan
said. “We do not believe the proposal meets the legal tests required to meet
even preliminary approval. Retailers, their customers and competition would
suffer irreparable harm if this one-sided deal is allowed to move forward. We
will consult with our attorneys and act as soon as possible to correct this

“This proposal benefits no one but lawyers and credit card companies, and
should not be forced on the retail industry or retailers’ customers,” Duncan
said. “It’s a morass of legal flaws, and rather than bringing about reform it
would only entrench the anticompetitive behavior of the card companies while
putting them beyond the reach of the law.”

U.S. District Court Judge John Gleeson gave preliminary approval to the
proposed settlement following oral arguments today in Brooklyn, N.Y. Among
attorneys presenting their cases were lawyers for NRF, which last week filed a
brief in opposition to the settlement on behalf of itself, 17 retail and
restaurant companies, and two other trade associations. NRF is not a party to
the lawsuit, but its members and the companies named in the brief would be
affected if the case is approved as a class action. Arguments were also heard
on briefs filed by other opponents, including retailers and associations who
were parties to the suit but who have rejected the proposal.

NRF argued in its brief that the settlement could not legally be certified as
a class action because it attempts to force a one-size-fits-all solution onto
a wildly diverse group of merchants. NRF also argued that a provision barring
all retailers – including those who opt out of the settlement and even those
who do not yet exist – from filing future lawsuits over swipe fees is
impermissibly broad under federal law. In addition, the proposal allows
retailers to reject payments offered as compensation for past price-fixing but
gives no mechanism to opt out of flawed injunctive relief that would allow
card companies to continuing price fixing and fee increases in the future.

NRF opposes the settlement because it fails to reform the cartel-like system
where Visa and MasterCard set a rigid schedule of swipe fees that all banks
follow. It does nothing to disclose the hidden fees or otherwise create
transparency that would encourage competition that would lead to lower fees.
Merchant bargaining groups could be recognized, but that is no change from
current law. And while some merchants would theoretically be given the right
to surcharge as a bargaining chip to hold down fees, the provision is subject
to a wide variety of card company restrictions, would be illegal in 10 states,
and ignores the goal of merchants to reduce prices paid by their customers.

As the world’s largest retail trade association and the voice of retail
worldwide, NRF represents retailers of all types and sizes, including chain
restaurants and industry partners, from the United States and more than 45
countries abroad. Retailers operate more than 3.6 million U.S. establishments
that support one in four U.S. jobs – 42 million working Americans.
Contributing $2.5 trillion to annual GDP, retail is a daily barometer for the
nation’s economy. NRF’s Retail Means Jobs campaign emphasizes the economic
importance of retail and encourages policymakers to support a Jobs, Innovation
and Consumer Value Agenda aimed at boosting economic growth and job creation.

Read NRF Brief


National Retail Federation
J. Craig Shearman, 202-626-8134
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