Merchants Appeal Key Part Of Interchange Settlement

December 3, 2012

Today the Official Merchant Services Blog brings you the most recent developments in the ongoing credit card interchange settlement lawsuit.

Merchants opposing the pending credit card interchange case filed an appeal last week challenging the court’s preliminary approval of a key part of the settlement. The appeal, filed by four merchants and seven merchant trade groups, asks the Second U.S. Circuit Court of Appeals to nullify the lower court’s preliminary approval. The merchants are collectively challenging a provision of the settlement that releases defendants Visa Inc., MasterCard Inc., and a handful of major banks from liability for interchange pricing policies. Meaning that merchants could no longer sue Visa or MasterCard for interchange policies they deem unfair.

“This settlement has fatal legal defects and should not get preliminary approval.  We look forward to presenting the problems we see in this proposal to the Second Circuit Court of Appeals,” said Jeffrey Shinder, the merchant group’s attorney and managing partner at Constantine Cannon LLC, New York, N.Y.

About 1,200 merchants and trade groups have raised objections to the agreement since it was reached in July. In the deal, the card networks and banks agreed to temporary credit card interchange relief valued at $1.2 billion and $6 billion in damage payments for merchants along with relaxation of certain network rules, including ones that restricted surcharging. The pact received preliminary approval from the Brooklyn, N.Y.-based district court’s Judge John Gleeson on Nov. 9.

Besides the liability release, merchants have objected that the settlement does nothing to reform the networks’ interchange processes and cements in place a number of anti-competitive practices. “The merchant community is deeply committed to reforms that bring transparency and competition to the broken electronic payments market. The volume and diversity of those objecting to this flawed proposal is remarkable and continues to grow,” Shinder said in his statement.

The 11 merchants and merchant groups filing the appeal are: Coborn’s Inc., D’Agostino Supermarkets Inc., Jetro Holdings Inc., Jetro Cash & Carry Enterprises LLC, Affiliated Foods Midwest Cooperative Inc., National Association of Convenience Stores, National Association of Truck Stop Operators, National Community Pharmacists Association, National Cooperative Grocers Association, National Grocers Association, and the National Restaurant Association.

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.

We have discussed this settlement from different aspects previously, noting the advantages it would seem to give the Issuing Banks over merchants. Although it is not finalized yet, the dissenter’s cries seem to be going relatively 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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