From the moment it was announced last July, critics have panned the $7.25 billion deal that MasterCard, Visa, and a group of major card-issuing banks struck to resolve claims that they fixed fees on credit and debit card transactions. Merchant trade groups complained that the class action settlement would do nothing to prevent Visa and MasterCard from continuing to raise so-called interchange fees (a.k.a swipe fees). Retail giants like Wal-Mart Stores Inc. and Target Corporation announced their opposition as well, citing terms that would bar class members from pursuing future litigation against the credit card companies.
On Thursday Target, Macy’s Inc., and more than a dozen other retailers took their opposition a step further with a lawsuit of their own against Visa and MasterCard. The complaint, filed by lawyers at Vorys, Sater, Seymour and Pease and Clarick Gueron Reisbaum in Manhattan federal court, claims the plaintiffs have collectively paid more than $1 billion in interchange fees for Visa and MasterCard transactions in the past fiscal year.
Conspicuously absent from Thursday’s complaint is Constantine Cannon, which took the lead in representing objectors to the settlement. Constantine Cannon previously represented a nationwide class of merchants in a separate antitrust case against Visa and MasterCard over the companies’ "signature" cards. That case settled for a then-record breaking $3.4 billion in 2003.
Wal-Mart, which was one of the lead plaintiffs in the earlier case, was also a no-show in Thursday’s complaint. We reached out to Constantine Cannon’s Jeffrey Shinder to ask if he’d be reprising his role as Wal-Mart’s counsel in a new opt-out suit, but we didn’t immediately hear back.
A Vorys Sater spokesman declined to comment on the retailers’ suit. In the complaint, partner Michael Canter wrote that Visa and MasterCard "exploited their market power" and violated antitrust law by milking retailers for unfair swipe fees on behalf of card-issuing banks. "Over the past decade, judicial efforts to curb the exercise of market power by the Visa and MasterCard combinations have been ineffective," the complaint asserts.
U.S. District Judge John Gleeson in Brooklyn preliminarily approved the $7.25 billion swipe fee settlement in November, but retailers large and small have been piling on with formal objections ahead of a final hearing on the deal. Visa and MasterCard can terminate the settlement if merchants responsible for 25 percent of the volume of transactions back out.
Co-lead class counsel K. Craig Wildfang of Robins Kaplan Miller & Ciresi told us Thursday that the settlement is still on track for approval. "It doesn’t appear to us that the companies listed on the complaint would come anywhere close to 25 percent of the class," Wildfang said.
The credit card companies are represented by Arnold & Porter (for Visa) and Paul, Weiss, Rifkind, Wharton & Garrison and Willkie Farr & Gallagher (for MasterCard). Listing the legal teams for all the bank defendants might crash The American Lawyer‘s servers, but we promise it’s a suitably intimidating group.
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