The Retail Industry Leaders Association, whose members include companies such as Target and Wal-Mart, said Thursday that it is opting out of the proposed $7.25 billion antitrust settlement over credit card swipe fees.
The blockbuster deal, which is now in the final approval process, would settle accusations that Visa, MasterCard and a group of big banks engaged for years in price-fixing on fat credit card transaction fees. Several trade organizations and retailers have publicly lambasted the settlement for not doing enough to rein in credit card swipe fees, but now they have to decide whether to formally opt out of the arrangement and walk away from the money.
The deadline for more than 7 million businesses to either join or walk is May 28. The Retail Industry Leaders Association is a member of the class because it accepts Visa and MasterCard for such things as paying dues and registering for conferences. A spokesman said its members support the association’s decision to opt out, but will make their own individual decisions.
In its statement, the retail group pilloried the legal settlement for locking in a “Visa/MasterCard duopoly” and robbing retailers of the right to bring future legal actions over interchange rules and rate setting against Visa, MasterCard and 13 big banks.
“The proposed settlement undermines merchants’ legal rights forever and fails to restrain the continued growth of swipe fee increases,” said Deborah White, the retail group’s executive vice president and general counsel.
The Retail Industry Leaders Association has been part of a noisy retailer revolt over the accord. It’s one of several trade groups including the National Association of Convenience Stores and the National Restaurant Association that have taken their anti-settlement campaign to the Internet at merchantsobject.com, where they urge businesses to opt out of the settlement.
Lawyers for pro-settlement retailers have objected in court that the website is inaccurate and misleading.
As the merchant rift indicates, the settlement is as controversial as it is big. It affects just about any U.S. business that has accepted a Visa or MasterCard credit card since 2004. And at $7.25 billion, it would be the largest antitrust class action settlement in U.S. history if it’s approved.
The agreement was more than seven years in the making, and the lawyers who fought on behalf of retailers have maintained it was the best deal possible under the circumstances. They have mailed out more than 10 million notices to class members, and planned to file their motion for final approval late Thursday.
An appeal that has already been filed in the second court of appeals has been stayed and won’t proceed until the settlement wins final approval.
Minneapolis lawyer K. Craig Wildfang, lead counsel for the class plaintiffs, said the retail group’s decision to opt out was largely symbolic and won’t likely change how U.S. District Judge John Gleeson in Brooklyn evaluates the settlement for final approval. Gleeson will make a final decision sometime after a Sept. 12 hearing.
The real test, Wildfang said, is whether influential merchants such as Wal-Mart and Target, who have publicly opposed the accord, actually opt out. Opting out means walking away from the money. More than 7 million merchants are to get some portion of the $7.25 billion, which is mostly cash for damages but also includes a temporary reduction in transaction fees.
Those opting out would still be bound by the rule changes the settlement calls for. Retailers, for instance, would get the right to impose surcharges on transactions.
Each business must make its own decision to join or not. So far fewer than 1,000 have opted out, and they are mostly smaller ones, according to Wildfang.
“I haven’t seen any of the large merchants who objected to preliminary approval say publicly that they intend to opt out,” Wildfang said.
A spokeswoman for Minneapolis-based Target Corp. said it is continuing to explore options but “remains strongly opposed to the proposed interchange fee settlement and believes it is bad for both retailers and consumers.”
A Wal-Mart Stores Inc. spokesman said the company was “evaluating its options.”
The Retail Industry Leaders Association said that the substantial majority of its members oppose the settlement. But none have made public statements that they will formally opt out, a spokesman said.
According to merchants object.com, the group of lawyers who hammered out the agreement for retailers stand to make $700 million from the settlement.
Wildfang, a partner at Robins, Kaplan, Miller & Ciresi in Minneapolis, said he didn’t know what the final bill would be, but that they will ask for “a healthy fee.” They’ve been at this for almost nine years, he said, and the lawyers have invested more than $200 million in the case and haven’t been paid yet.