Judge rejects $30 billion Visa, Mastercard swipe-fee settlement

U.S. District Judge Margo Brodie of the U.S. District Court of the Eastern District of New York said in a memo that she was “not likely” to grant approval to the final settlement and rejected a request for preliminary settlement approval. Brodie ordered the plaintiffs to confer and respond to the ruling by Friday.

Visa and Mastercard will have to either renegotiate the settlement with merchants or go to trial.

Brodie did not give a reason for her rejection but had already signaled her position on June 13.

Visa and Mastercard expressed disappointment with the judge’s decision. The settlement presented a “fair resolution” to the 19-year dispute, Mastercard spokesperson Will O’Connor said. Visa similarly called the settlement an “appropriate resolution” that resulted from “lengthy and thoughtful discussions” with merchants, company spokesperson Fletcher Cook said.

Retailers typically pay between 1.5 and 3 percent in swipe fees on every customer transaction to credit card companies. The settlement would have required the average swipe fee to fall by at least 0.04 percentage points for three years and remain at least 0.07 percentage points below the current average for five years. The settlement also would have prevented credit card companies from increasing swipe fees until 2030.

Businesses, for their part, would have been able to impose surcharges based on the Visa or Mastercard card customers used and direct them to cheaper payment methods.

The settlement arose from a 2005 antitrust class-action lawsuit against Visa, Mastercard and multiple U.S. banks that alleged that merchants paid excessive fees to accept credit and debit payments from the card companies. Merchants claimed the banks engaged in de facto price fixing when setting those fees — and some opposed the settlement on grounds that the deal would leave fees too high and provide only short-term relief for businesses.

Credit card companies counter that swipe fees cover the cost of processing and authorizing payments.

The settlement opened the door for credit-card companies to either increase other fees for merchants to make up for lost revenue or wait until the settlement’s timeline expired to hike them again, said Stephanie Martz, the chief administrative officer and general counsel for the National Retail Federation, a trade group for retailers.

“We didn’t think it accomplished anything,” Martz said. “It’s up to Visa and Mastercard now. If they want to come back and really address the problems that we have identified for the last 20 years, we are absolutely open to it. But if not, we’ll see them at trial.”

The judge’s rejection of the settlement is recognition that it “didn’t come close” to addressing the issues between card companies and merchants, said Doug Kantor, general counsel at the National Association of Convenience Stores, another retailer trade group.

“Visa and Mastercard organize all the banks that issue their cards into cartels and they set the prices for those cartels in an all-or-nothing situation, and that has effects for the economy, for Main Street businesses and for consumers,” Kantor said. “The judge recognized that this settlement doesn’t actually touch any of those problems.”