Retailers Cheer After Appeals Court Overturns Swipe Fee Settlement

Trade groups representing retailers believed that a multibillion-dollar antitrust settlement concerning credit and debit card transaction fees didn't go far enough. Now an appeals court has handed them a victory by throwing the deal out.

A huge legal settlement that has been a major point of contention between the retail and financial sectors for years has been thrown out, and retailers couldn’t be happier.

A 2012 settlement between plaintiff retailers and the credit card giants Visa and MasterCard concerning credit card transaction (or swipe) fees—which card issuers charge retailers when a consumer uses a card—was thrown out last week by the U.S. Circuit Court of Appeals for the Second Circuit. Some retailers opposed the deal, arguing that the $7.25 billion settlement provided too little compensation to merchants and that it wouldn’t result in lower swipe fees or prevent credit card companies from raising fees in the future.

Retailers have been fighting the settlement since it was first announced. Roughly 8,000 merchants opted out, bringing its value down to $5.7 billion from the original $7.25 billion.

In a statement, Mallory Duncan, senior vice president and general counsel at the National Retail Federation (NRF), called the agreement “a backroom deal that failed to represent the interests of retailers.” He suggested that Congress might need to provide a legislative solution to the problem of transaction fees.

“NRF challenged this settlement because it allowed Visa and MasterCard’s anticompetitive practices to continue,” Duncan said. “The court recognized this and struck them down accordingly.”

The National Restaurant Association (NRA), meanwhile, credited the appeals court for recognizing that the plaintiffs weren’t properly represented in the agreement and that the settlement itself was “unreasonable and inadequate.”

“The Circuit Court confirmed what we knew all along: The proposed settlement would not have achieved the litigation’s most critical goal—to fundamentally change a broken marketplace in which swipe fees are set,” said Cicely Simpson, NRA’s executive vice president of policy and government affairs. “The settlement was so restrictive that it could have allowed these companies to dominate the payments ecosystem unchallenged at a time when new technological developments have the potential to change the competitive landscape.”

Deborah White, executive vice president and general counsel at the Retail Industry Leaders Association, called the settlement one that “would have undermined merchants’ legal rights forever and would have allowed Visa and MasterCard to impose higher and higher swipe fees with impunity.” RILA dropped out of the settlement in 2014.

For its part, MasterCard defended the settlement. “We believe we presented a clear case to the court that the settlement was fair and appropriate based on more than four years of negotiation and the close involvement of the district court,” the company stated, according to a Dow Jones report.

The long-running case, which started in 2005, came about in a different climate for payments. Since the suit began, Bloomberg notes, both Visa and MasterCard have spun off from banks in initial public offerings. What’s more, the nature of payments has changed significantly, with both chip cards and mobile payments becoming common in the United States.


Ernie Smith

By Ernie Smith

Ernie Smith is a former senior editor for Associations Now. MORE

Got an article tip for us? Contact us and let us know!