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Visa Fee Settlement Approval Can’t Be Appealed Yet, Court Rules

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Home Depot Inc. and other retailers lost their bid to appeal a judge’s preliminary approval of Visa Inc. and MasterCard Inc.’s proposed $7.25 billion settlement of a merchant fee price-fixing case.

A federal appeals court in Manhattan refused to give expedited treatment to the retailers’ appeal and deferred the matter until after the judge has given final approval and entered a final judgment in the case, according to a filing yesterday.

Lawyers for the retailers had sought a hearing and decision on the appeal as soon as possible because they said the trial judge in the case granted an injunction that makes them part of the settlement group without rights to opt out of the accord or bring future lawsuits, according to a Nov. 29 court filing.

Stephen Neuwirth, an attorney for Home Depot, and Wesley Powell, a lawyer for the credit card companies, didn’t immediately respond to e-mails sent after regular business hours seeking comment on the ruling.

U.S. District Judge John Gleeson gave preliminary approval of the $7.25 billion settlement on Nov. 9 over objections by retailers opposing the deal. The decision allowed plaintiffs to begin signing up more than 7 million retailers that might be eligible to participate. A final approval hearing is scheduled for Sept. 12.

The accord, estimated to be the largest-ever antitrust settlement, would end a seven-yearlong case alleging that the card companies conspired with major banks to fix interchange, or swipe, fees charged to merchants when customers pay with plastic. Retailers opposed to the deal claim it forces them to give up too many rights to sue over card company practices in the future.

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 (Brooklyn).

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