Retail groups continue appeal process of card swipe settlement

Credit card swipe fees can become a major thorn in the side of businesses across the corporate landscape. The small charge that companies need to pay to process every credit card can become pricy and it has caused many businesses to rethink operations as a way to better manage this cost. This area has also become a legal quagmire as a battle between credit card providers and merchants seems to be never ending.

One of the biggest parts to the legal battle is a lawsuit that is now nearly nine years old. The original problem stems from the belief that Visa and MasterCard were charging excessive and unlawful credit card swipe and processing fees. After eight years of litigation, a settlement was reached and in December 2013, U.S. District Judge John Gleeson approved a $5.7 billion settlement. However, it was almost immediately appealed by some retail organizations because they did not feel the language in it was clear and it did not stop the card providers from increasing fees.

So far, nothing has changed with the settlement, and last week two retail organizations — the National Retail Federation and the Retail Industry Leaders Association — announced that they are again calling for the settlement to be overturned by an appeals court.

According to NRF Senior Vice President and General Counsel Mallory Duncan the problem here is that it was a "backroom deal" that was reached between a handful of retailers and the credit card companies and does not signify the feelings or opinions of the rest of the retail industry. On top of that, it also allows card providers to keep increasing the fees that they charge.

"The retail community remains fully committed to fighting this flawed settlement and addressing the fundamental lack of competition in the electronic payments market," RILA Executive Vice President and General Counsel Deborah White said. "Quite simply, the proposed settlement not only undermines merchants' legal rights and fails to restrain Visa and MasterCard's ability to increase swipe fees with impunity, but it also has broad implications on the rights of others in future meritorious class action cases."

This announcement from the organizations is a follow-up to their original appeal that was filed earlier this year. At the time it was announced that a large cross section of retailers — which includes "iconic" national chains — have reviewed the settlement offer and decided that it offers no benefit to them. Despite this, it was agreed upon behind closed doors by a small group.

There are several other reasons that 19 percent of organizations and retailers formally objected to the settlement and an additional 25 percent opted out. From a monetary standpoint, a majority of businesses would see pennies on the dollar and would be prohibited from filing a similar lawsuit down the road. There are also legal errors including a failure to adequately balance monetary relief against future claims, dismissing opposition and ignoring a court-appointed expert's opinion against the proposal.

Point of sale credit card processing and swipe fees remain a major battleground for merchants. It is a smart decision for companies to keep an eye out for additional information that could affect how businesses operate.

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