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Tuesday, April 23, 2013

Visa / Mastercard Settlement Screws Merchants / Businesses. Opt-Out!!!!

How Visa and MasterCard are Ripping-Off
America's Businesses and Consumers

Updated March 27, 2014 

Wal-Mart Stores Inc.  has sued Visa Inc.  for more than $5 billion, claiming the card network charged unreasonably high fees when the retailer's customers paid with plastic.

Retailers are charged fees set by Visa and other card networks every time a customer pays with a credit or debit card. In its suit, Wal-Mart alleges that the way Visa set those "swipe fees" violated antitrust regulations and generated more than $350 billion for card issuers over nine years, in part at the expense of the retailer and its customers.

Visa declined to comment. The company has repeatedly denied that its fees are anticompetitive.

The lawsuit, filed this week in the U.S. District Court for the Western District of Arkansas, extends a long-running battle between the retailer and the payments network. Wal-Mart helped win a $3 billion class-action settlement with Visa and MasterCard Inc. in 2003 over the card networks' requirement that merchants who accepted their credit cards must also accept their debit cards.

Interchange fees, the industry term for card-swipe fees, have been another major point of contention between the two camps. The fees are set by Visa and other card networks and collected by card-issuing banks like J.P. Morgan Chase And Co. Retailers have argued that the fees had been set too high due to a lack of competition with the two payment industry giants.

Smaller retailers settled over the issue in July 2012, but dozens of large merchants including Wal-Mart, Target Corp. and Macy's Inc. opted out so they could pursue suits of their own—hence the suit filed this week.

Companies that opted out of the settlement have argued that the deal wouldn't prohibit card networks from raising card-processing fees later on and would require merchants to waive their rights to sue payment networks on all current or future payment methods, ranging from credit cards to mobile phones.

The settlement received final approval by a federal judge in December, though several retailers have appealed. It is aimed at ending more than 50 lawsuits filed against the card networks and large banks that issue cards since 2005. Under the settlement, merchants stand to receive about $5.7 billion.

Wal-Mart used the lawsuit filed this week to throw in a laundry list of complaints against Visa, including claims that the high fees imposed by the payment network caused the retailer to lose sales.

"The anticompetitive conduct of Visa and the banks forced Wal-Mart to raise retail prices paid by its customers and/or reduce retail services provided to its customers as a means of offsetting some of the artificially inflated Interchange Fees," the company said. "As a result, Wal-Mart's retail sales were below what they would have been otherwise."

Wal-Mart also took a shot against Visa over payment card security. Data breaches last year at Target Corp., Neiman Marcus and others have drawn attention to the country's slow adoption of card technology that uses computer chips and PIN numbers and is seen as less susceptible to fraud than the current system of magnetic stripes.

"Wal-Mart was further harmed by anti-innovation conduct on the part of Visa and the banks, such as perpetuating the use of fraud-prone magnetic stripe system in the U.S. and the continued use of signature authentication despite knowledge that PIN authentication is more secure, a fact Visa has acknowledged repeatedly," it said in the suit.

Visa and MasterCard have been pushing merchants and banks to adopt the technology, arguing it could significantly reduce the impact of data breaches. Both companies have set an October 2015 deadline for merchants to upgrade to the technology or face increased liability for future data breaches.

Some banking groups have previously accused merchants of dragging their feet on adopting the technology.

These fees are set by the credit card networks, and are the largest component of the various fees that most merchants pay for the privilege of accepting credit cards, representing 70% to 90% of these fees by some estimates, although larger merchants typically pay less as a percentage. Interchange fees have a complex pricing structure, which is based on the card brand, regions or jurisdictions, the type of credit or debit card, the type and size of the accepting merchant, and the type of transaction (e.g. online, in-store, phone order, whether the card is present for the transaction, etc.).

Further complicating the rate schedules, interchange fees are typically a flat fee plus a percentage of the total purchase price (including taxes). In the United States, the fee averages approximately 2% of transaction value.

In recent years, interchange fees have become a controversial issue, the subject of regulatory and antitrust investigations. Many large merchants such as Wal-Mart have the ability to negotiate fee prices, and while some merchants prefer cash or PIN-based debit cards, most believe they cannot realistically refuse to accept the major card network-branded cards. This holds true even when their interchange-driven fees exceed their profit margins. Some countries, such as Australia, have established significantly lower interchange fees. The fees are the subject of several ongoing lawsuits in the United States.


Interchange fees are set by the payment networks such as Visa and MasterCard.

In the US Card issuers now make over $30 billion annually from interchange fees. Interchange fees collected by Visa and MasterCard totaled $26 billion in 2004. In 2005 the number was $30.7 billion, and the increase totals 85 percent compared to 2001.

The origins of the interchange fee are a matter of some controversy. Often they are assumed to have been developed to maintain and attract a proper mix of issuers and acquirers to bank networks. Research by Professor Adam Levitin of Georgetown University Law Center, however, indicates that interchange fees were originally designed as a method for banks to avoid usury and Truth-in-Lending laws. Typically, the bulk of the fee goes to the issuing bank. Issuing banks’ interchange fees are extracted from the amount collected by the merchants when they submit credit or debit transactions for payment through their acquiring banks. Banks do not expect to make a significant amount of money from late fees and interest charges from creditworthy customers (who pay in full every month), and instead make their profits on the interchange fee charged to merchants.

Interchange rates are established at differing levels for a variety of reasons. For example, a premium credit card that offers rewards generally will have a higher interchange rate than do standard cards. Transactions made with credit cards generally have higher rates than those with signature debit cards, whose rates are in turn typically higher than PIN debit card transactions. Sales that are not conducted in person, such as by phone or on the Internet, generally are subject to higher interchange rates, than are transactions on cards presented in person. It is important to note that interchange is also set to encourage issuance and to attract issuing banks to issue a particular brand. Higher interchange is often a tool for schemes to encourage issuance of their particular brand.

For one example of how interchange functions, imagine a consumer making a $100 purchase with a credit card. For that $100 item, the retailer would get approximately $98. The remaining $2, known as the merchant discount and fees, gets divided up. About $1.75 would go to the card issuing bank (defined as interchange), $0.18 would go to Visa or MasterCard association (defined as assessments), and the remaining $0.07 would go to the retailer's merchant account provider. If a credit card displays a Visa logo, Visa will get the $0.18, likewise with MasterCard. Visa's assessment is fixed at 0.1100% of the transaction value and MasterCard's assessment is fixed at 0.0950% of the transaction value. On average the interchange rates in the US are 179 basis points (1.79%) and vary widely across countries. In April 2007 Visa announced it would raise its rate .6% to 1.77%.

According to a January 2007 poll by Harris Interactive, 32% of the public had heard of the interchange fee; once explained to them, 91% said Congress "should compel credit card companies to better inform consumers" about the fee.

Controversy: Price-fixing

Regulators in several countries have questioned the collective determination of interchange rates and fees as potential examples of price-fixing. Merchant groups in particular, including the U.S.-based Merchants Payments Coalition and Merchant Bill of Rights, also claim that interchange fees are much higher than necessary, pointing to the fact that even though technology and efficiency has improved, interchange fees have more than doubled in the last 10 years. Issuing banks argue that reduced interchange fees would result in increased costs for cardholders, and reduce their ability to satisfy rewards on cards already issued. The Merchants Payments Coalition argues that consumers pay more than they should because of "hidden" interchange fees and that reducing these fees would result in lower retail prices.

By Region: United States 

Merchant lawsuits claim that interchange fees in the U.S. are out of line with falling technology costs and similar fees charged outside the United States, resulting in higher prices, lower profits and harm to the consumer. The lawsuits allege that these high fees represent collusion and price fixing among the bank card networks and their card issuing banks, in violation of antitrust laws. Bank card networks disagree, claiming interchange fees represent an effort to balance incentives to issuing banks to issue more cards with better rewards against the need to bring an optimum number of card-accepting merchants into their credit card systems. They also claim that the interchange fees bring consumer benefits such as more rewards, reduced fraud, lower interest rates and system innovations.

Legislation And Congressional Investigations

Senate hearings in the United States have focused on the secrecy surrounding interchange fee schedules and card operating rules. In 2006 Visa and MasterCard both released some fee schedules and summary reports of their card rules, though pressure continues for them to release the full documents. In January 2007, Senate Banking committee chairman Chris Dodd cited interchange fees at a hearing on credit card industry practices and again in March the fees were criticized by Sen. Norm Coleman. In January 2007, Microsoft chairmanBill Gates cited high interchange fees as a significant reason Microsoft believes it can be competitive in online micropayments.

In March 2007, MasterCard announced it was changing its rate structure, splitting the lower, "basic" tier for credit cards into two new tiers. The Wall Street Journal reported that the document outlining the shift "makes it difficult to determine if the new rates, on average, are rising." MasterCard spokesman Joshua Peirez said the new structure "allows us to have a more sophisticated way to break up our credit card portfolio," while National Retail Federation general counsel Mallory Duncan said, "They are pricing each tier at the absolute most they can so they can maximize their income."

On July 19, 2007 the House Judiciary Committee antitrust task force held the first hearing to study the specific issue of interchange fees. NRF's Duncan testified, as did representatives from the credit card industry. Subcommittee chairman John Conyers, leading the panel, said, "While I come into the hearing with an open mind, I do believe the burden of the proof lies with the credit card companies to reassure Congress that increasing interchange fees are not harming merchants and ultimately consumers."

Reps. John Conyers (D-MI) and Chris Cannon (R-UT) introduced the "Credit Card Fair Fee Act" on March 6, 2008, which would create a panel of judges, appointed by the Department of Justice Antitrust Division and Federal Trade Commission to oversee interchange fees.

On October 1, 2010, the Durbin Amendment came into effect as a last minute addition to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. As a result, banks have begun to limit the incentives offered with their checking account products, and some have announced that they would begin to charge their customers a fee for the use of the cards.

Anti-Trust Litigation

In October 2010, Visa and MasterCard reached a settlement with the U.S. Justice Department in an antitrust case focused on the issue of competitiveness in the interchange market. The companies agreed to allow merchants displaying their logos to decline certain types of cards, or to offer consumers discounts for using cheaper cards.

European Union

In 2002 the European Commission exempted Visa’s multilateral interchange fees from Article 81 of the EC Treaty that prohibits anti-competitive arrangements. However, this exemption has expired on December 31, 2007. In the United Kingdom, MasterCard has reduced its interchange fees while it is under investigation by the Office of Fair Trading.

In January 2007, the European Commission issued the results of a two-year inquiry into the retail banking sector. The report focuses on payment cards and interchange fees. Upon publishing the report, Commissioner Neelie Kroes said the "present level of interchange fees in many of the schemes we have examined does not seem justified." The report called for further study of the issue.

On December 19, 2007, the European Commission issued a decision prohibiting MasterCard's multilateral interchange fee for cross-border payment card transactions with MasterCard and Maestro branded debit and consumer credit cards. The Commission concluded that this fee violated Article 81 of the EC Treaty that prohibits anti-competitive agreements. MasterCard has appealed the Commission's decision before the EU Court of First Instance; while the appeal is pending MasterCard has temporarily repealed its multilateral interchange fees.

On March 26, 2008, the European Commission opened an investigation into Visa's multilateral interchange fees for cross-border transactions within the EEA as well as into the "Honor All Cards" rule (under which merchants are required to accept all valid Visa-branded cards).

The antitrust authorities of EU Member States other than the United Kingdom are also investigating MasterCard's and Visa's interchange fees. For example, on January 4, 2007, the Polish Office of Competition and Consumer Protection fined twenty banks a total of PLN 164 million (about $56 million) for jointly setting MasterCard's and Visa's interchange fees.

Australia and New Zealand

In 2003, the Reserve Bank of Australia required that interchange fees be dramatically reduced, from about 0.95% of the transaction to approximately 0.5%. One notable result has been the reduced use of reward cards and increased use of debit cards. Australia also removed the "no surcharge" rule, a policy established by credit card networks like Visa and MasterCard to prevent merchants from charging a credit card usage fee to the cardholder. A surcharge would mitigate or even exceed the merchant discount paid by a merchant, but would also make the cardholder more reluctant to use the card as the method of payment. Australia has also made changes to the interchange rates on debit cards, and has considered abolishing interchange fees altogether.

As of November 2006, New Zealand is considering similar actions, following a Commerce Commission lawsuit alleging price-fixing by Visa and MasterCard. In New Zealand, merchants pay a 1.8% fee on every credit card transaction.

Visa / Mastercard Settlement Screws Merchants / Businesses
You Are Encouraged To Opt-Out!

Any idiot that thinks it's a good idea to allow Visa and Mastercard, etc. to allow us merchants/businesses to pass along extra costs to our customers as a remedy for Visa and Mastercard, etc. restricting competition, stifling innovation and fixing the way interexchange fees are calculated and charged to us has to be smoking crack!

This is exactly why we need alternative forms of payment like Dwolla, Bitcoin, etc.

Mitch Goldstone

People need to wake-the-fuck up!

Navigating the increasing number of changes in the payments industry can be difficult for companies of any size. At DPL-Surveillance Equipment, we realize the importance of providing proactive information related to industry changes that may have an impact on your business. In support of this, DPL-Surveillance Equipment is providing the following guide to help you understand the important details related to the Payment Card Interchange Fee and Merchant Discount Antitrust Litigation and the recent settlement proposed by Visa® and MasterCard®.

First, it is important to understand the background of the case. In 2005, various groups of merchants filed a number of class action lawsuits against Visa, MasterCard and various financial institutions which issue payment cards carrying the Visa or MasterCard marks. The class groups of plaintiffs claimed that Visa, MasterCard and the named financial institutions unlawfully set the fees charged to merchants for U.S. credit card transactions over the Visa and MasterCard networks. They also claimed that the rules enacted by the card networks prevented them from adequately protecting themselves against those fees. All of these lawsuits were consolidated in federal court in New York for more efficient management and resolution.

In an effort to bring closure to these disputes and avoid the costs and expenses of further litigation, the parties involved in these cases have formulated a proposed settlement, which addresses this lawsuit and other outstanding litigation. This proposed settlement has been granted preliminary approval as of November 9, 2012. All U.S. merchants (including the District of Columbia, Puerto Rico, and all U.S. Territories) who have accepted a Visa or MasterCard payment card at any time since 2004 are members of the class. The terms of the settlement include the creation of a settlement fund with an estimated $7.25 billion dollars, of which $6.05 billion will be in cash. It also includes changes to acceptance practices that were alleged by merchants to restrict competition, as well as temporary interchange reductions that have an estimated value of $1.2 billion.

As a result of this litigation, Visa and MasterCard recently announced that they have formally made changes to their acceptance practices related to surcharging. Effective January 27, 2013, merchants are able to surcharge a customer's credit card transaction (not debit or pre-paid) where permitted by local and state laws. Merchants must register with Visa, MasterCard and their acquirer 30 days prior to implementation of surcharging. Merchants who intend to surcharge may continue to notify/register as required by the changes in the acceptance practices. Future updates will be provided as significant changes related to the settlement details occurs.

Important Settlement Details And Estimated Timeframes

* Surcharge rules are changing effective January 27, 2013

* February - May 2013 is the window for deadlines for notice to class members, to file objections, and file an opt-out notice

* Final settlement approval hearing is set for September 2013

* If the decision is appealed, the appeal decision will take place by mid to late 2014

*  Disbursements of the class settlement fund to merchants may not occur until 2015 (if final approval is granted and not modified on appeal.)

Cash Settlement And Fee Reductions:

*  Cash settlement of $6.05 billion due to the class plaintiffs; may be reduced depending on merchants opting out of the proposed settlement.

*  Credit interchange fees on U.S. Visa and MasterCard consumer and commercial credit cards will be reduced by 10 bps for a period of 8 months. The 8 month period for the calculation will start July 29th, 2013, at which point Visa and MasterCard will withhold interchange revenue from issuers and place into an escrow account for later disbursement to claimants. 

Surcharging Details Effective January 27, 2013

*  All merchants who elect to charge a surcharge to a customer's payment card transaction must register with Visa and MasterCard. Note: Registration must occur 30 days prior to implementation of surcharging. Surcharges can only be applied on credit (not debit or pre-paid cards) card transactions.

*  Any surcharge must be charged at the brand level (i.e., same surcharge to all Visa and/or MasterCard credit card transactions), or at the product level (i.e. same surcharge to credit card transactions of similar product type, e.g., Visa Signature card, MasterCard World card, etc.). All merchants will need to identify what type of surcharging they will do at the time of their registration.

*  Merchant surcharges must not be higher than the cost of card acceptance. Brand level surcharges should not exceed the Merchant Discount Rate. Product level surcharges should not exceed MDR minus the regulated interchange rate adjustment. The maximum allowable surcharge amount should not exceed 4% (this is the current cap, will be periodically reviewed and may change) A clear disclosure notice of any surcharge must be posted for customers at the store entry and at the merchant's Point-of-Sale (POS). Surcharge notices cannot disparage any card brand, card network, card issuing bank or payment card product being used.

*  The dollar amount of the surcharge must be clearly disclosed as a separate line item on the transaction receipt provided by the merchant to the customer.

* It's important to note that currently New York, California, Texas, Florida, Connecticut, Massachusetts, Colorado, Oklahoma, Kansas and Maine currently have state laws that prohibit merchants from surcharging consumers. These state laws will take precedence over card brand rules.

*  Additional dispute rule modifications are expected but have not been published to date.

*  Because the provisions of the proposed settlement require a “level playing field” related to a merchant's decision to surcharge Visa and MasterCard transactions, the ability to collect a surcharge may be impacted by the surcharge rules of other payment types accepted. To create this level playing field among the competitive card brands, the merchant may only surcharge an accepted credit card in the same way in which the merchant would be allowed to surcharge another payment card product which it could accept.

It is important to remember that Merchants should not discriminate or surcharge based on the involved payment card issuer (i.e. national bank, state bank, credit union, etc.).

This is bullshit!!!!

A retail lobbying group that represents Best Buy Co., Wal-Mart Stores Inc. and Target Corp. is objecting to the proposed $7.25 billion class-action settlement with Visa Inc., MasterCard Inc. and several large banks over merchant-transaction fees.

The Retail Industry Leaders Association, whose members include more than 200 retailers, product manufacturers and other firms, also will opt out of the deal as it tries to drum up opposition to a settlement that would end long-standing litigation against the payment networks.

"RILA and the overwhelming majority of our members agree that the proposed class action settlement is a bad deal for retailers," Deborah White, executive vice president and general counsel for the Arlington, Va., group, said in a statement sent by an organization spokesman Thursday.

The trade group is opting out and objecting to the settlement on behalf of itself. Retailers that are members of the group must individually take such steps on their own.

The settlement, announced in July, addresses lawsuits filed in 2005 by several merchant trade groups arguing Visa, MasterCard and several large banks that issue the payment networks' credit cards conspire to set transaction fees that retailers pay at arbitrarily high levels. The fees, known as interchange, are set by Visa and MasterCard but collected by the banks each time their customers swipe their credit cards.

The merchants also alleged the defendants have limited their ability to drive down costs by forcing them to abide by rules that have prevented them from surcharging customers who pay with credit cards.

Under the deal, the defendants have proposed paying $6.05 billion to a class of eight million merchants and temporarily reducing interchange fees by amount equal to $1.2 billion. In addition, Visa and MasterCard agreed to drop their bans on surcharging, a change that took effect in January and allows merchants to add an extra fee to customers who pay with a credit card.

But the deal has sparked opposition from large merchants like Wal-Mart, Target and Home Depot Inc., as well as several trade groups that are named plaintiffs in the litigation, including the National Association of Convenience Stores, National Grocers Association and National Restaurant Association.

They argue the settlement will do little to keep the cost of interchange fees from rising and worry the deal grants overly broad releases from future litigation to the defendants. Under the deal, merchants can opt out of the monetary portion of the settlement but are unable to opt out of the rule changes Visa and MasterCard have made.

"The proposed settlement undermines merchants' legal rights forever and fails to restrain the continued growth of swipe fees increases," Ms. White said.

Proponents of the deal have accused critics of embarking on a smear campaign against the settlement in hopes of drumming up political support on Capitol Hill for potential legislation that would limit credit-card transaction fees more drastically.

Trish Wexler, a spokeswoman for the Electronic Payments Coalition, which represents Visa, MasterCard and large banks on payments issues, called RILA's decision a "public relations stunt designed to distract attention from Thursday's hearing where Washington retail lobbyists are having to defend themselves for putting out misleading information on the settlement."

Ms. Wexler was referring to a hearing in U.S. District Court in Brooklyn, N.Y., scheduled for Thursday afternoon, where several retail trade groups are expected to defend information they have posted on websites urging merchants to opt out and object to the settlement. Last week, Judge John Gleeson ordered the parties to show why they shouldn't be forced to alter information on their websites and send out corrected information to merchants who already may have opted out or objected to the deal based on their information.

Attorneys representing the proposed class of merchants in the case had alleged in court filings that the trade groups were posting inaccurate information on the sites intended to bias retailers against the deal.

Update: 8-9-2013

Court Rules in Favor of Retailers on Debit Card Fee Cap

In a ruling viewed as a major victory for retailers, U.S. District Judge Richard Leon on Wednesday overturned a Federal Reserve rule placing a cap on debit card fees banks collect from merchants, according to The Washington Post.

Retailers had complained that the Federal Reserve had set the cap too high following intense lobbying by banks, and the judge agreed. Under the Fed rule, banks could charge as much as 21 cents per debit card transaction. Retailers pointed out that the Fed had originally proposed a 12 cent per transaction cap.

By the time the final rule was enacted, it covered additional items including the cost of equipment and technology designed to prevent fraud. The court ruled that this action by the Fed was improper.

Retailers argued that consumers would benefit from a lower fee since costs like these are often passed on by merchants in the form of higher prices.

Ironically, as Reuters pointed out, the cap on debit card fees, also known as the Durbin amendment to Dodd-Frank and named for its sponsor, Senator Richard Durbin of Illinois, was intended to help consumers in the first place.

What happened, as so often is the case in Washington, was lobbying – in this instance by the banking industry.

Following Wednesday’s ruling the banking industry expressed disappointment, urged the Federal Reserve to appeal the decision, and added that merchants are unlikely to reward consumers with lower prices and will simply opt to increase their profits.

The Merchants Payments Coalition, a retailing group, on the other hand said that Wednesday’s ruling “will give relief to merchants across the country and their customers, putting a stop to unconscionable price gouging that is completely at odds with the law,” according to The Washington Post.

While retailers are the big winners, banks and credit card issuers stand to have swiping fees cut more than 50 percent down to as low as 7 cents per transaction, according to a note to investors from Guggenheim Partners.

Because of the ruling, shares of the two largest operators, Visa Inc. (NYSE: V) and MasterCard Inc. (NYSE: MA), plunged Wednesday. Visa stock fell 11 percent and MasterCard dropped six percent but recovered to end slightly higher at the close of trading.

American Express Co(NYSE: AXP) dropped 1.9 percent Wednesday and Discover Financial Services (NYSE: DFS) fell 1.3 percent in late trading.

The 21-cent cap, Reuters reported, will probably remain in place until the Fed either rewrites the rule or decides to appeal. Barbara Hagenbaugh, a Federal Reserve representative, indicated that the agency was in the process of reviewing the judge’s ruling.


1. Merchants Payments Coalition, Inc.

   325 7th Street N.W.  Suite 1100
   Washington, D.C.  20004


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