Judge Approves Swipe Fee Settlement, Now Valued at $5.7 Billion

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A federal judge approved the multi-billion dollar settlement of a lawsuit over credit card swipe fees, resolving an eight-year long battle between banks and retailers.

In a 55-page ruling, U.S. District Judge John Gleeson says the settlement will have a positive effect on competition. He was also sharply critical of the tactics and arguments made by many of the nation’s largest retailers, which tried to torpedo the deal.

“The vitriol and poor behavior and feigned hysteria mask complex and difficult issues on which reasonable merchants can and do disagree,” Gleeson writes.

The antitrust case was brought in 2005 by a small group of retailers who objected to the pricing set by Visa, MasterCard and the banks that issue their cards.

Much has changed in the eight years since the suit was filed, as the judge noted – in particular, Visa and MasterCard, which used to be owned by a consortium of banks, have become publicly traded companies.

The settlement deal, struck last year, calls for the defendants to pay an estimated $7.25 billion, though that number fell because many merchants opted out of the agreement. The settlement is now valued at $5.7 billion.

Under the deal, Visa and MasterCard also agreed to allow retailers to impose surcharges on credit-card purchases.

Merchants that opposed the deal included many of the nation’s largest retailers. One of the leading retail trade groups noted today that the settlement’s terms do not affect how swipe fee pricing will be set in the future.

“We are very disappointed that this deeply flawed settlement has been approved. It is not supported by the retail industry and would do nothing to reduce swipe fees or keep them from rising in the future,” Mallory Duncan, general counsel for the National Retail Federation, says in a news release.

Judge Gleeson wrote that the dissenting retailers were asking for too much, given the limits of what lawsuits can accomplish.

“Even if the objectors are right in contending that additional dominoes must fall before the alleged anticompetitive behavior of Visa and MasterCard is eradicated, those dominoes will have to fall in other forums,” Gleeson wrote.

Gleeson also touted the benefits of the new rules allowing merchants to impose surcharges. Retailers have been dismissive of the impact of those rule changes.

“For the first time, merchants will be empowered to expose hidden bank fees to their customers, educate them about those fees, and use that information to influence their customers’ choices of payment methods,” Gleeson wrote.

The judge seemed to signal exasperation with the length of the legal saga, noting that more than 400 depositions were taken and more than 80 million pages of documents were exchanged as part of the discovery process.

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