The negotiated settlement meant to end the longstanding dispute over credit card interchange moved closer to becoming final last week as attorneys for both sides in the dispute proposed a final settlement agreement to the U.S. District Court in New York and made a motion for its approval.
The settlement has been controversial since it was first announced and retail groups have been very vocal about their opposition to it. But the Electronic Payments Coalition has argued that the retail groups are merely voicing the same arguments they tried to advance in mediation and eventually settled.
Lawyers representing 13 individual retailers and six trade associations ranging from convenience stores to restaurants this summer announced a $7.25 billion proposed settlement of a lawsuit filed against Visa and MasterCard in 2005. Four of the individual companies and all six of the trade associations have rejected the proposal since then.
“The settlement is on track, and proceeding precisely as predicted from the beginning. It was always predicted that there would be opposition, objections and opt-outs. Legally, there is no requirement of any kind in a class action that a majority of the original plaintiffs agree to the settlement–particularly given that the volume represented by these objectors is proportionately insignificant,” wrote Robert Stolebarger, partner at Bryan Cave, LLP and antitrust counsel for the EPC.
“There is only one test for preliminary approval–does the judge find that this settlement is sufficiently fair, reasonable and adequate (based on the years of litigation, mediation and negotiation that went into its development) that it warrants being noticed and presented to the entire class and set for hearing on final approval. Given that the settlement agreement was effectively developed by two highly regarded mediators–with the direct oversight of Judge Gleeson, himself–and given that these recent 'objections' are not new in any way, nothing that hasn’t already been considered. It is difficult to imagine that the court would deny preliminary approval based on old, tired arguments that have already been given due weight or not based on merit or the lack thereof.”
Stolebarger also addressed the notion that the settlement had been negotiated “in secret” and without sufficient input from retailers.
“The notion that this settlement was developed by one side that strong-armed the other side into accepting is simply wrong,” Stolebarger maintained. “As the court has revealed, this settlement was the result of a proposal from the two highly regarded mediators in this case. For a normal case, mediation takes one day. For a complicated case, it takes a week. For a truly complicated case, mediation can take a month. This mediation took two years."
Although it was not a party to the lawsuit, the National Retail Federation said a revised antitrust settlement filed in federal court scarcely begins to address retailers’ concerns about credit card swipe fees charged by Visa and MasterCard that cost consumers close to $30 billion a year.
“The proposal put on the table this summer was beyond tweaking, and the update presented today proves that fact. It remains manifestly unfair,” NRF Senior Vice President/General Counsel Mallory Duncan said. “The settlement still does virtually nothing to protect retailers or their customers from the abuses of the card industry, and it attempts to silence any objections for years to come. Retailers would rather take their chances in court than accept this one-sided swindle written by the card industry for the card industry.” “It should prove very significant to the court that the majority of the plaintiffs in this case have repudiated the settlement, and that includes half a dozen national trade associations representing thousands of merchants,” Duncan said. “The lawyers and handful of retailers who support the settlement do not represent the retail industry.” The NRF said it opposes the settlement because it does little to address high fees charged in the past and nothing to prevent them from rising higher in the future.