NRF supports overturning of swipe fee settlement

The National Retail Federation (NRF) is publicly welcoming a ruling striking down the 2012 settlement of a class action lawsuit over Visa and MasterCard’s credit card swipe fees.



The ruling by the U.S. Court of Appeals for the Second Circuit in New York overturns a December 2013 approval of the settlement by U.S. District Court Judge John Gleeson.



NRF in 2014 asked the appeals court to overturn Gleeson’s approval, saying a broad cross-section of the retail industry opposed the deal. Gleeson approved the $7.25 billion antitrust settlement. NRF and others had argued for more than a year that it failed to reform an alleged price-fixing system, under which Visa and MasterCard set fees for credit cards issued by thousands of banks. Rather than lower the fees, the card companies proposed in the settlement that they be passed along to consumers as a surcharge. Major retailers rejected the surcharge proposal, saying it was the opposite of what they sought.



The settlement came in a 2005 lawsuit brought by 19 retailers and trade associations but 10 of the plaintiffs, including all of the associations, rejected the settlement when it was unveiled in 2012. NRF was not a plaintiff in the case, but argued against it because its class action status would have imposed its terms on thousands of NRF members. NRF’s 2014 appeal noted that 19% of merchants by card volume had formally objected to the settlement and that 25% had opted out.



“This ‘settlement’ was never a settlement on behalf of the retail industry but rather a backroom deal that failed to represent the interests of retailers,” said NRF senior VP and general counsel Mallory Duncan. “It would have given merchants pennies on the dollar for the price-fixing they have suffered at the hands of the big credit card companies and would have done nothing to end price-fixing or to lower swipe fees going forward. Now it’s time to seek real reform of these still-skyrocketing fees whether it be in court or in Congress.”



According to the NRF, small retailers would have seen as little as a few hundred dollars under the settlement. Retailers who rejected the monetary settlement would have still been bound by other restrictions the court would not let them opt out of, including a prohibition on future lawsuits over the fees.



Data cited by the NRF shows that credit card swipe fees average about 2% of each transaction and amounted to about $30 billion a year at the time of the settlement.