Interchange Settlement Update: Challengers Awaiting Final Approval

December 21, 2012

Today the Official Merchant Services Blog brings you another update on the ongoing Interchange lawsuit settlement. We began talking about the possibility of ‘The Big Cash Comeback’ back when the settlement was first announced in July, and later we discussed the opposition to the settlement. Last week a federal appellate court denied a retailer’s appeal to review part of the controversial settlement in the massive credit card interchange case, clearing the way for the trial court to move toward final approval. At the same, the process of notifying the millions of merchants affected is getting under way.

Judge John Gleeson of the U.S. District Court in Brooklyn, N.Y., gave preliminary approval of the settlement on Nov. 9 and has set a hearing for next Sept. 13 to consider final approval.

Lawyers representing seven merchant trade groups as well as some individual merchants asked the Second Circuit Court to consider a narrow part of Gleeson’s preliminary approval, the provision of the settlement that releases defendants Visa Inc., MasterCard Inc., and some major banks from liability for interchange pricing policies. The provision is shaping up to be the key objection of the 1,200 retailers and trade associations since it would affect current and even future card-accepting merchants. This case, now seven years in the making, began when merchant plaintiffs accused the networks and banks of using anti-competitive practices in setting interchange rates.

Under the settlement announced in July by lawyers for both sides, the defendants will pay class merchants about $6 billion in damages, and Visa and MasterCard will provide another $1.2 billion in temporarily reduced interchange rates and ease up on certain rules, especially ones restricting merchants’ ability to add a surcharge for card transactions. In return, the networks want to be released from future court challenges by merchants regarding Interchange and network rules. The defendants also are paying about $550 million to a handful of large merchant plaintiffs that have now dropped their claims.

Judge Gleeson indicated that the standard for final approval is much higher than the one for preliminary approval, which means that the objecting plaintiffs still have some hope even though parts of the settlement already are going into effect or will be soon. For example, the networks have 60 days from Nov. 27, when the court entered Gleeson’s order implementing preliminary approval, to conform their rules to terms of the proposed settlement.

The district court meanwhile, is setting up the machinery to administer the settlement process. Gleeson appointed Kansas City, Kan.-based Epiq Systems Inc., a specialist in legal-systems administration and technology, to oversee notifications and related matters. That is no small task: the class settlement covers any merchant that has accepted Visa and MasterCard cards between Jan. 1, 2004, and late 2012. Experts estimate 6 million to 8 million affected merchants that must be notified. The settlement agreement also calls for merchant acquirers to assist in the notification process.

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 much 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 landmark litigation.

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