Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Retail Lobby Still Opposed to Revised Credit Card Swipe Fee Settlement, (Oct 22, 2012)

By Sarah Borchersen-Keto,Washington Correspondent

The National Retail Federation said a revised antitrust settlement filed in federal court October 19, 2012, “still does virtually nothing” to protect customers and address retailers’ concerns about credit card swipe fees charged by Visa and MasterCard.

Merchant plaintiffs in the case (Payment Card Interchange Fee and Merchant Discount Antitrust Litigation) have asked the U.S. District Court in Brooklyn to preliminarily approve the class action settlement. The initial proposed settlement was announced on July 13, 2012, following seven years of litigation.

National Retail Federation senior vice president and general counsel Mallory Duncan said the revised settlement “remains manifestly unfair,” noting that it “attempts to silence any objections for years to come.” Duncan predicted that retailers “would rather take their chances in court than accept this one-sided swindle written by the card industry for the card industry.”

Duncan added that the majority of plaintiffs in the case have repudiated the settlement, including a number of national trade associations representing thousands of merchants. “The lawyers and handful of retailers who support the settlement do not represent the retail industry,” Duncan said.

However, K. Craig Wildfang, co-lead counsel for the merchants and a partner at Robins, Kaplan, Miller & Ciresi LLP, said the revised settlement represents “meaningful structural reforms that could have been obtained by merchants through further litigation.” The reforms will shift the balance of power from the two dominant payment networks to card-accepting merchants, he said.

Bonny Sweeney, co-lead counsel and partner with Robbins Geller Rudman & Dowd LLP, stated that while the settlement marks a step toward greater competition in the payment card markets, it does not prevent the Department of Justice or state attorneys general from pursuing additional reforms. Furthermore, it does not prevent Congress from passing legislation to further reform payment card systems “in a manner that is not available in private litigation,” he said.

Meanwhile, the Electronic Payments Coalition accused the retail lobby of “politically motivated greed.” Spokeswoman Trish Wexler said retail groups “are simply hoping to create enough noise to attract Congress’ attention and extract even more money from the Hill.” Wexler said the coalition remains confident that the revised settlement marks the end of the swipe fee debate.

News: Antitrust