U.S. District Judge John Gleeson has an opportunity this week to put an end to an antitrust complaint against Visa Inc. and MasterCard Inc. that dates back to 2005. But the courtroom battle may continue past the Sept. 12 fairness hearing.
In the Eastern District of New York courtroom in Brooklyn, Gleeson will either give his final approval to the proposed $7.25 billion settlement, or agree with retailers that the deal agreed upon by their own attorneys was not done so in their best interest.
Last month, Visa and MasterCard decided to stay the course with the antitrust settlement, even though the card brands had the option to walk away because retailers accounting for more than 25% of the total volume of credit card purchases had decided to opt out of the settlement agreement.
Merchants that oppose the settlement have complained that the caveat of not being able to sue the card brands in the future leaves the door open for the companies to again engage in what retailers sued over in the first place. Merchants in the lawsuit say the card brands collaborate with the largest banks to "price fix" swipe fees, which include multiple network fees in addition to interchange rates paid to issuing banks.
"The defendants as a group had the right to terminate the settlement agreement because the volume threshold of 25 percent was exceeded, but elected not to do so," MasterCard president and CEO Ajay Banga told investors during a July 31 earnings conference.
Banga's message suggests that the card brands expect Gleeson to give his final approval to the settlement.
Doug Kantor, a lawyer representing the National Association of Convenience Stores in the case, doesn't think it will be that cut-and-dried.
"The judge will hear from everyone and decide," Kantor says. "But my sense is that the merchants actively objecting are ready for an appeal.
"If we have to do it, we will do it," he adds. "But for now, we will make the best case we can to the judge and see what he decides."
Lawyers representing the card brands did not respond to inquiries regarding the upcoming hearing.
Banks and the card brands sang the praises of Gleeson's decision in early November of 2012 to allow the fee settlement to move forward. Merchants informed the court shortly thereafter of their intent to appeal the settlement, effectively prolonging a legal fight that has been going on for eight years.
After the preliminary approval, merchants had the option to accept the settlement, object and opt-out, or only object to it.
Some merchants support the settlement, but those opting out represent more than 25% of the marketplace, which is "almost unprecedented for a class-action of this size, with some 7,800 companies," Kantor says.
Retailers objecting and opting out essentially declare they don't agree with the settlement and don't want the money or the new rules provided by the settlement. Those only objecting want the court to reject it, but if the court approves it, they would accept the money, Kantor explains.
Merchants can only opt-out of the money settlement, not the rule changes associated with it.
"If the court approves the settlement, everyone will have to abide by the rules," Kantor says.
But those rules, especially the one releasing card brands from any future claims, pose a major hurdle for many merchants, Kantor adds.
In addition, most merchants feel the card brands' concession of permitting surcharges on card transactions carries no weight, Kantor says.
"Most merchants are not likely to surcharge, and it's illegal in 40% of the market anyway," Kantor says. "And customers don't like it."
The years-long dispute has come down to a case in which "power players" have all of the say, and "non-power players" are left with the crumbs and status quo, says merchant acquirer consultant and industry researcher Paul Martaus, of Mountain Home, Ark.-based Martaus & Associates.
"For smaller merchants, the objecting or opting out can simply be window dressing, because the whole deck is stacked against them," Martaus says. "They maybe get a windfall if the case is settled, but nothing is going to change otherwise and that irks smaller merchants."
The card brands "essentially know that regardless of what price they charge for card acceptance, the merchant will take those card transactions," he says. "We are a card-based society, we just are."
Since April, legal teams on both sides have jockeyed for position, with those representing the card brands asking the judge to approve the $7.25 billion settlement, plus coverage of $720 million in legal fees and $27 million in expenses.
Gleeson also ordered some websites to correct their portrayal of the settlement and how they describe retailers' options for objecting or opting out.
Some retailers aren't waiting to find out how the judge rules this week. These merchants filed a separate antitrust suit in Texas, leveling similar allegations on the setting of interchange rates and rules that force acceptance of all cards, limit surcharging, and prohibit discounts.
"This hearing is where merchants who objected will have a chance to speak and then the lawyers on both sides will have a chance to speak," Kantor says. "And the judge will decide from there."
Martaus says he hopes the legal wrangling can come to a close, but he suspects it may not be the final word that all of the merchants are seeking.
"The cold, hard reality of daylight on this is that the game is probably over," Martaus says.
"Most likely, it has all been worked out among the major players," he adds.