REI, Foot Locker and Nike Opting Out of Swipe Fee Settlement

REI (Recreational Equipment Inc.), Foot Locker and Nike are among the 19 national retailers who  announced Tuesday that they have each individually decided to object and opt out of a proposed class action settlement of an antitrust lawsuit challenging fees-called interchange or swipe fees-that Visa and MasterCard fix for banks to charge merchants for the use of Visa and MasterCard credit and debit cards.

Other merchants participating in the announcement include Walmart, Costco, Lowes, Gap Inc., Starbucks Corporation, J.Crew Group Inc., Dillards, Crate & Barrel, 7-Eleven, Inc., Panera Bread, IKEA, GNC, DAgostino Supermarkets, Michaels Stores, Alon Brands Inc. and Roundys Supermarkets, Inc

These merchants will now consider the possibility of additional legal action to recover damages from Visa and MasterCard under U.S. antitrust laws. It is estimated that, even if the proposed settlement is finally approved by the court, such new litigation could result in billions of dollars in additional damages, covering all Visa and MasterCard transactions processed by those merchants from January 1, 2004 through to November 27, 2012.

What is clearly striking about the opposition to this settlement is the diversity of merchants that have come out against the deal,” said Kyle McKeen, President and CEO of Alon Brands, Inc, which is the largest 7-Eleven licensee in the United States. “They are from every corner of the country, from different merchant verticals, and are different sizes. But they share a common view: that this deal is not a good one for the industry.

Mr. McKeen added: In our market segment of convenience stores and petroleum sales, 76 percent of the stores are owned and operated by single store operators that dont stand a chance arguing against restrictive rules and regulations that the big credit card companies impose on them. Allowing this settlement to move forward would validate and continue the oppressive environment that small businesses have to face with the big card companies.
 
Mike Cook, Senior Vice President of Finance and Assistant Treasurer for Walmart, said: “If this settlement is approved, it would allow credit card companies and big banks to perpetuate an unfair and broken system that costs all consumers, including those who dont even have a credit or debit card.

“Credit card networks could continually increase hidden swipe fees which already cost consumers tens of billions of dollars each year, Mr. Cook added. Additionally, we object that the proposed settlement would require merchants to release future claims against the credit card networks covering rules weve never seen and conduct that has yet to occur that would affect people who arent even born.”

The interchange litigation filed in federal district court in Brooklyn in 2005 alleges, among other things, that Visa, MasterCard and their member banks have unlawfully fixed the interchange rates merchants pay for Visa and MasterCard credit and debit transactions, which has forced merchants to pay exorbitant fees well above competitive levels and the levels of similar fees around the world. These fees raise prices for consumers on goods and services in every part of the American economy.

The merchants that are objecting and opting out of the proposed settlement contend the settlement maintains and strengthens an anticompetitive system that allows Visa and MasterCard to fix interchange fees for banks. In their view, the settlement completely fails to provide any meaningful structural reform, while providing the defendants with an overbroad release that will cover every merchant that accepts Visa and MasterCard credit and debit cards, forever. 

These merchants also believe that the settlement violates their rights to due process under the U.S. Constitution by depriving them of the right to sue for ongoing and future damages. While merchants can opt out of the damages portion of the Brooklyn settlement and sue for damages for past anticompetitive practices, if the court approves the settlement, the merchants would be bound by the settlements unprecedented release of Visa, MasterCard, and the banks from liability for virtually any similar anticompetitive acts they take in the future relating to Visas and MasterCards current rules.

Merchants opting out believe that there has never been so broad a release from liability in any class action in U.S. history. They claim the release is a blatant violation of their due process rights and an unconstitutional taking of their legal rights to sue for current and future antitrust violations.

The case is In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, 05-md-01720, U.S. District Court, Eastern District of New York.

Following is a complete list of the merchants participating todays announcement: