Interchange Settlement Given Preliminary OK

November 13, 2012

On Friday, the Judge presiding over the controversial Interchange Settlement case in Brooklyn, N.Y. gave preliminary approval to the settlement of credit card interchange litigation announced July 13. The Official Merchant Services Blog recently explained why the controversial Interchange settlement was being considered for preliminary approval, despite the backlash from merchants and large corporations. We also began talking about the possibility of ‘The Big Cash Comeback’ when the settlement was first announced, and later we discussed the opposition to the settlement.

U.S. District Judge John Gleeson indicated in late October that his cursory review showed that the settlement probably met the legal requirements for preliminary approval. He scheduled a hearing for Nov. 9 to get input from lawyers for the merchant plaintiffs and network and bank defendants. The judge said final approval requires a higher standard, and lawyers don’t expect final sign-off anytime before 2013. Opponents argued that the plan didn’t even meet the lower threshold for a preliminary approval.

The National Retail Federation, the leading retail-industry trade group and an outspoken foe of the agreement, quickly issued a statement saying it would “explore all legal options.” But the Electronic Payments Coalition, a lobbying group of card networks and banks, said it viewed Gleeson’s ruling “as further indication that this historic settlement is a fair and balanced resolution to the epic swipe-fee battle.”

The NRF’s Mallory Duncan said in a statement  that “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 injustice.” The NRF is not a plaintiff in this case, and made no mention of which legal remedies it would pursue.

MasterCard Inc. general counsel Noah Hanft said in a statement that the settlement “was reached with the assistance of the court and was supported by the merchant class representing millions of large and small retailers, and prominent trade groups across the country.” MasterCard also said it remains confident that “the court will grant final approval in the coming months.”

Visa Inc. said “this settlement is a fair and reasonable compromise for all parties. It is the result of two years of negotiation between retailers, their legal counsel, the networks, financial institutions and two highly regarded mediators under the supervision of the court.”

Merchants and some trade associations sued Visa, MasterCard, and about a dozen banks in 2005 alleging credit card interchange is unfair under federal antitrust laws. With a trial set for September 2012, the parties reached a settlement that calls for the defendants to pay more than $6 billion in damages and temporarily lower credit interchange to the tune of $1.2 billion. The networks also are to grant relief from some of their rules, including an easing of restrictions on surcharging, and let merchants negotiate in groups in the interchange-setting process. In return, the merchants are to agree not to sue the networks over interchange and rules in the future.

Opponents said the plan would protect what they view as anti-competitive interchange practices from further challenges by merchants, even from merchants that don’t yet exist. Opponents also questioned the value of the new surcharging freedoms, noting that 10 states prohibit the practice. This settlement attempts to force a one-size-fits-all solution onto a wildly diverse group of merchants, which may be extremely unsuccessful.

While we have discussed this settlement from different aspects previously, noting the advantages it would seem to give the Issuing Banks over merchants, the settlement seems to be proceeding along without any further adjustment or negotiation. Although it is not finalized yet, the dissenter’s cries seem to be going unheard, as they believe that the settlement protects the status quo more than anything, and will not change the way the networks set interchange. Host Merchant Services will keep you informed of all the latest news involving this legal battle between the merchants and the card-issuing giants.

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