Litigation makes interesting bedfellows. Take the eight-year-old antitrust lawsuit against Visa and MasterCard, which unites Wal-Mart, Barnes & Noble, independent booksellers, Costco, and Zappos, who have charged that the credit card companies engaged in fee fixing. The plaintiffs are now chafing at a proposed $7.25 billion settlement. In the run-up to last week’s May 28 deadline, the American Booksellers Association urged members to opt out and object to the settlement.
One issue with the settlement is that retailers will get only a small percentage of the hefty sum, despite deep losses from the fee fixing. In addition, they face giving up future lawsuits. As Wal-Mart noted in its filing: "The way Visa and MasterCard operate, the payments industry suffers from a virtually complete lack of competition for merchants."
At the spring forums, and in an e-mail to member stores, Oren Teicher explained that the settlement doesn’t offer “meaningful changes” to swipe-fee rules. “And, importantly,” he wrote, “the settlement denies all current and future merchants their right to bring future legal action related to interchange rules and rate setting, among other things, against Visa, MasterCard, and the banks.” The board of the National Association of College Stores voted to opt out entirely.
NACS registered its opposition to the terms of the deal and opted out of the settlement in U.S. District Court in Brooklyn. The organization stated, “The proposed settlement does not address the core claims in the case: Visa’s and MasterCard’s price-fixing of interchange rates. The proposed settlement instead validates and protects that practice, enabling Visa and MasterCard to continue to illegally fix fees for the banks that merchants and their customers have no choice but to pay. Excessive swipe fees that would otherwise be returned to students through lower prices, grant aid, and improved student services are being misdirected toward credit card companies at a time when students are struggling to afford college.”
But booksellers weren’t alone in filing objections. The National Retail Federation, which said that swipe fees drive up prices for consumers by $30 billion a year, called the proposal “a surrender.” In its brief filed with Judge John Gleeson, it wrote, “The settlement fails to address the core evil that motivated this class action and that continues to plague the industry: the outsized economic power of and the manipulation of interchange rates by Visa, MasterCard, and their constituent banks.”
Many additional objections, have been made in the case, which is officially known as the Payment Card Interchange Fee and Merchant Discount Anti-Trust Litigation. Four boxes are currently being scanned and will be made available to the public on Friday. Not content merely to object, some companies have launched new litigation against Visa and MasterCard, including Target and Shop Rite. The proposal affects so many retailers that the settlement Web site is available in 8 languages.
A fairness hearing is slated for September 12. Among those intending to appear are BJ’s Wholesale Club, Barnes & Noble College Booksellers, Barnes & Nobles, IKEA North America Services, and Starbucks.
