Washington -- The National Retail Federation on Friday said it will explore all legal options following a judge’s preliminary approval of a proposed class-action settlement of an antitrust lawsuit over the $30 billion a year in credit card swipe fees charged by Visa and MasterCard.
“We respectfully disagree with the court’s assessment of the proposed settlement,” NRF senior VP and general counsel Mallory Duncan said. “We do not believe the proposal meets the legal tests required to meet even preliminary approval. Retailers, their customers and competition would suffer irreparable harm if this one-sided deal is allowed to move forward. We will consult with our attorneys and act as soon as possible to correct this injustice.”
U.S. District Court Judge John Gleeson gave preliminary approval to the proposed settlement following oral arguments Friday in Brooklyn, N.Y. Among attorneys presenting their cases were lawyers for NRF, which last week filed a brief in opposition to the settlement on behalf of itself, 17 retail and restaurant companies, and two other trade associations.
NRF is not a party to the lawsuit, but its members and the companies named in the brief would be affected if the case is approved as a class action. Arguments were also heard on briefs filed by other opponents, including retailers and associations who were parties to the suit but who have rejected the proposal.
NRF argued in its brief that the settlement could not legally be certified as a class action because it attempts to force a one-size-fits-all solution onto a wildly diverse group of merchants. It also argued that a provision barring all retailers – including those who opt out of the settlement and even those who do not yet exist – from filing future lawsuits over swipe fees is impermissibly broad under federal law.
In addition, the proposal allows retailers to reject payments offered as compensation for past price-fixing but gives no mechanism to opt out of flawed injunctive relief that would allow card companies to continuing price fixing and fee increases in the future.
NRF said it opposes the settlement because it fails to reform the cartel-like system where Visa and MasterCard set a rigid schedule of swipe fees that all banks follow. It does nothing to disclose the hidden fees or otherwise create transparency that would encourage competition that would lead to lower fees. Merchant bargaining groups could be recognized, but that is no change from current law. And while some merchants would theoretically be given the right to surcharge as a bargaining chip to hold down fees, the provision is subject to a wide variety of card company restrictions, would be illegal in 10 states, and ignores the goal of merchants to reduce prices paid by their customers.