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Responding to media inquiries about the opposition, K. Craig Wildfang, the Minneapolis lawyer who helped broker the deal as co-lead counsel for the class of retailers, has challenged the objecting retailers to present some sort of viable Plan B.
Doug Kantor, a lawyer for the National Association of Convenience Stores, a group at the forefront of the revolt, said there is no procedure for producing a Plan B.
“Settlements get negotiated between parties,” Kantor said. “We have looked at many different permutations, but there is no benefit whatsoever to publicly having a discussion only with ourselves. The defendants have made clear they are not discussing or negotiating anything. They are in take-it-or-leave-it mode.”
Among other things, objecting retailers argue that the deal doesn’t reform the broken interchange system and leaves Visa and MasterCard and the banks far too much power to set high rates, costing retailers.
The retailers also say it contains a provision preventing retailers from suing Visa and MasterCard over price-fixing in the future, which some argue violates their constitutional right to due process.
Target and a group of more than three dozen major retailers escalated the fight on May 23, filing their own lawsuit against Visa and MasterCard for damages from illegal price-fixing since 2004.
Last week, in a move to head off that and similar lawsuits, Visa and MasterCard asked Gleeson to declare once and for all that, as it relates to the named defendants in the settlement that opted out, Visa, MasterCard and the card-issuing banks did not violate federal antitrust laws between 2004 and November 2012.
A fairness hearing is slated for Sept. 12. Most observers say any conclusive action is likely months away.
Jennifer Bjorhus • 612-673-4683