American Express will make it easier for U.S. retailers to charge a fee when customers pay with its credit cards, under the terms of a class-action settlement announced Thursday.
However, it is unlikely that the settlement, if approved in court, would create a rise in surcharges on credit-card purchases, observers say.
As a result of another recent legal settlement, Visa and MasterCard now allow merchants who accept their credit cards to impose surcharges at the point of sale. Visa and MasterCard still do not allow surcharges on debit card transactions.
Retailers have faced significant impediments to passing on the costs of credit card acceptance on a widespread basis. One barrier was American Express' rules, which prevent retailers from charging a fee unless they do the same for debit and credit cards issued by other companies.
Under the settlement, American Express would revise its rules. A retailer that accepts Amex still would not be allowed to charge a higher price than it does on MasterCard and Visa credit cards, and MasterCard and Visa debit cards are left out of the comparison.
The settlement will allow merchants to begin passing the cost of swipe fees on to credit card users, says Gary Friedman, the plaintiffs' lawyer.
"And what that's going to do is that's going to drive a lot of traffic to debit," Friedman says, noting that debit cards are significantly cheaper for merchants than credit cards are. "This settlement is designed to move that needle."
American Express cast doubt on the likelihood that the settlement will have a meaningful effect on the frequency of surcharging.
"While the modification of our contract provisions gives merchants some additional flexibility, many merchants continue to believe, as we do, that surcharging is fundamentally anti-consumer," American Express managing counsel Tim Heine says in a press release. "Few merchants have taken advantage of earlier opportunities to surcharge out of concern that it could risk alienating customers, and drive them to patronize competitors who do not surcharge."
Many of the nation's largest retailers, including Wal-Mart Stores and Home Depot, opposed the earlier Visa and MasterCard settlement, and there were signs Thursday that they would give the American Express settlement a similarly icy reception.
The settlement would bar retailers that accept American Express cards from challenging certain Amex rules for 10 years.
"It does nothing to help merchants lower their costs to their customers, and it perpetuates the current high-rate scheme," says Mallory Duncan, general counsel for the National Retail Federation.
Under the proposed settlement, American Express would pay up to $75 million to cover the plaintiffs' legal fees. It would not pay damages to merchants.
A recent Supreme Court decision prevents merchants from recovering damages in the class actions, says Friedman, the plaintiffs' lawyer. The settlement does make it easier for merchants to file arbitration claims against American Express, though they would have to bear the cost of doing so, he adds.