Visa, MasterCard $5.7 Billion Swipe Fee Accord Approved
U.S. District Judge John Gleeson said that he was satisfied with the settlement, which was estimated to be the largest-ever U.S. antitrust accord.
“For the first time, merchants will be empowered to expose hidden bank fees to their customers, educate them about those fees and use that information to influence their customers’ choices of payment methods,” Gleeson wrote in his ruling yesterday in federal court in Brooklyn, New York.
Once owned by groups of major banks, Foster City, California-based Visa and Purchase, New York-based MasterCard have defended themselves for decades against legal claims that they operated price-fixing schemes. Swipe, or interchange, fees are set by Visa and MasterCard and paid by merchants when consumers use credit or debit cards.
MasterCard and Visa separated from the banks through initial public offerings in 2006 and 2008, respectively. Merchants filed a class-action lawsuit against the companies and the biggest card-issuing banks in 2005. They later alleged that the payment networks continued to fix prices with the banks even after the IPOs.
Visa climbed 1.9 percent to close at a record of $207.36 yesterday in New York and MasterCard advanced 0.7 percent to $787.97. MasterCard has surged 60 percent this year as Visa rose 37 percent, both outpacing the 20 percent gain for the 65-company Standard & Poor’s 500 Information Technology Index.
Lawyers representing merchants nationwide announced the settlement in July 2012. Once worth as much as $7.25 billion, the settlement was valued at about $5.7 billion as of August as a result of reductions for about 8,000 merchants that dropped out of the damages portion.
Dozens of large retailers, including Wal-Mart Stores Inc. (WMT), Amazon.com Inc. (AMZN) and Target Corp. (TGT), as well as major airlines, health insurers and other consumer businesses criticized the deal. Some said the amount should have been higher and that a legal release preventing future lawsuits was written too broadly.
Shortly after Gleeson issued his order, retailers and trade associations that opposed the deal including Wal-Mart, Amazon.com, 7-Eleven Inc., Barnes & Noble Inc. (BKS) filed notices that they will appeal the decision.
“We are reviewing the ruling and will take whatever steps are necessary to protect the rights of merchants and safeguard the pocketbooks of their customers,” Mallory Duncan, general counsel at the National Retail Federation, said in a statement. The group expects to appeal, he said.
An expert appointed by the court said merchants might not be able to prove their case at trial and were probably better off taking the settlement, according to a report filed in August.
The settlement “secures both a significant damage award and meaningful injunctive relief for a class of merchants that would face a substantial likelihood of securing no relief at all if this case were to proceed,” Gleeson said in his ruling.
“We are pleased that Judge John Gleeson has granted final approval to the U.S. merchant class settlement agreement,” Noah J. Hanft, MasterCard general counsel, said in a statement yesterday. “Today is an important milestone in putting this litigation behind us and we look forward to working in partnership with the merchant community.”
“Today we have realized a significant achievement in our efforts to resolve the long-standing legal differences between merchants and the payments industry,” Visa Chief Executive Officer Charlie Scharf said in an e-mailed statement. “The settlement, which was negotiated over many years, is fair for all parties involved.”
In a Sept. 12 hearing, Gleeson said he was concerned that releases in the accord might have gone too far in protecting the card firms from future lawsuits over new payment technologies.
“I have a concern, a well-grounded concern here, that this release places the line of scrimmage in the wrong spot,” he said during the hearing, regarding new technologies.
Lawyers for objectors expressed concerns that the releases could apply to new technologies such as mobile payment systems. Such systems could give merchants a way to reduce or escape interchange fees unless the card firms “trump” those opportunities, Michael Canter, a lawyer for some of the objectors, said during the hearing.
In court, lawyers for objectors also said the structure of the deal, which binds all merchants under the release even if they elect to drop out of the damages portion, is a problem.
“The settlement rewards the perpetrators and traps the victims,” Andrew Celli, a lawyer for the National Retail Federation, said during the Sept. 12 hearing.
In yesterday’s decision, Gleeson described the objectors’ arguments at the September hearing as being “afflicted by needless hyperbole.”
One objector likened approval “to the deprivation of civil liberties in the aftermath of a terrorist attack,” Gleeson wrote. Another “cast Visa and MasterCard as modern-day Nazis, and warned me not to assume the role of Neville Chamberlain,” he said.
“This settlement is in the best interest of all involved parties and that has been proven today with the court’s final approval,” Sam Fabens, a spokesman for the Electronic Payments Coalition, which represents both banks and card companies, said yesterday in an e-mailed statement.
Developed by banks half a century ago as two of the earliest interstate credit-card brands, Visa and MasterCard have been subject to government scrutiny over their business practices since at least the 1970s, according to a 2008 report by Georgetown University law professor Adam Levitin on merchant restraints.
Previously, the payment networks faced legal actions by the Justice Department and an earlier class-action led by Wal-Mart and other retailers in 1996, leading to some rule changes for card acceptance.
Merchants brought the current case against the card firms in 2005, after Gleeson approved a $4 billion settlement of the previous class action in January 2004.
Merchants are expected to receive about one-third of a year’s worth of interchange payments when final approval is granted and the order isn’t delayed by an appeal. That estimate is based on assumptions about the number of merchants that will file claims and other factors.
“The settlement gives merchants an opportunity at the point of sale to stimulate the sort of network price competition that can exert the downward pressure on interchange fees they seek,” Gleeson said in his ruling.
Gleeson included a slight change to the deal addressing concerns raised by state governments by clarifying that it does not bar potential regulatory or law enforcement actions.
The settlement doesn’t pertain to debit-card interchange fees, which are regulated by the government under the 2010 Dodd-Frank Act. In July, a federal judge found those fees had been set too high and ordered the Federal Reserve to revisit the rates.
The case is In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, 05-md-01720, U.S. District Court, Eastern District of New York (Brooklyn).
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