United States: Visa/Mastercard Interchange Fee Litigation – May 28, 2013 Deadline To Respond To Class Action Settlement Agreement

All entities that accept Visa- or MasterCard-branded credit and/or debit cards must decide, on or before May 28, 2013, how to respond to the settlement agreement with Visa and MasterCard on behalf of a class covering merchants who accept Visa- or MasterCard-branded payment cards in the United States. The decision by any entity covered by the settlement to accept the settlement offer, to opt-out of the settlement class, and/or to object to the terms of the settlement agreement necessarily involves a complex cost-benefit analysis of the value to be received by such entity compared to the value of the rights released by such entity under the settlement agreement. As a result, any entity that accepts Visa- or MasterCard-branded credit and/or debit cards is advised to carefully review the terms of the proposed settlement so as to be in a position to make a considered decision regarding the exercise of its opt-out and objection rights regarding the settlement.

On November 27, 2012, the United States District Court for the Eastern District of New York issued an order granting preliminary approval of the Definitive Class Settlement Agreement dated October 19, 2012 (the "Class Settlement Agreement") among class plaintiffs and defendants in the putative class actions and individual plaintiff actions consolidated as In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, No. 05-MD-1720-JG-JO ("Interchange Fee Litigation"). The Interchange Fee Litigation proceedings involved claims alleging that Visa and MasterCard, separately, and together with various financial institutions, violated antitrust laws and caused merchants to pay excessive fees for accepting Visa and MasterCard credit and debit cards, including by agreeing to set, apply and enforce default interchange fees, limiting what merchants could do to encourage customers to use other forms of payment, and continuing such conduct after Visa and MasterCard changed their corporate structures.

The Class Settlement Agreement establishes two classes: a "Cash Settlement Class," which includes all persons, business, and other entities that accepted any Visa or MasterCard cards in the United States between January 1, 2004 and November 28, 2012 and a "Rule Changes Settlement Class," which includes all persons, business, and other entities that, as of November 28, 2012 or at any point in the future, accept any Visa or MasterCard cards in the United States.

In exchange for the settlement and release of Defendants, members of the Cash Settlement Class who submit a valid claim will receive payment from a settlement fund, comprised of a maximum cash payment of $6.05 billion and a payment based on a reduction in interchange fees during an eight-month "Interchange Period," which has an estimated value of $1.2 billion.

In exchange for the settlement and release of Defendants, members of the Rule Changes Settlement Class will not receive any monetary payment. Instead, Visa and MasterCard have agreed to make changes to their rules and practices by permitting, under certain conditions, surcharges on credit (not debit) cards and discounts or other financial incentives to customers who do not use Visa or MasterCard cards, allowing merchants to accept Visa or MasterCard at fewer than all of a merchant's "trade names" or "banners," and, for merchants that form buying groups, agreeing to accept proposals about card acceptance on behalf of the group's members.

Members of the Cash Settlement Class have until May 28, 2013 to decide whether (a) to "opt out" of the class or (b) to object to the terms of the settlement. Members of the Cash Settlement Class who do not exclude themselves from the settlement will be eligible to receive payment from the settlement fund based on the covered entity's interchange fees attributable to Visa and MasterCard transactions from January 1, 2004 through November 28, 2012. In exchange, members of the Cash Settlement Class will release Visa and MasterCard and other entities from claims that are alleged or which could have been alleged in any of the complaints filed in the Interchange Fee Litigation, including, but not limited to, claims based on or relating to any interchange rules, interchange fees, or interchange rates, any Merchant Fee, or any "no surcharge" rules, "honor all cards" rules, "no minimum purchase" rules, "no discounting" rules, "non-discrimination" rules, "anti-steering" rules, "all outlets" rules, "no bypass" rules, or "no multi-issuer" rules.

Additionally, members of the Cash Settlement Class who do not exclude themselves from the settlement may also submit an objection to the Class Settlement Agreement, which the Court will consider in deciding whether or not to finally approve the settlement.

Members of the Cash Settlement Class who decide to opt-out will not be eligible to receive any payment from the settlement fund but would remain entitled to assert claims against Visa and MasterCard that are alleged or that could have been alleged in any of the complaints filed in the Interchange Fee Litigation based on any conduct, acts, transactions, events, occurrences, statements, or failures to act prior to November 28, 2012.

Members of the Rules Changes Settlement Class may not "opt out" of the settlement and, thus, will be deemed to have released those claims contained in the release and covenant not to sue in the Class Settlement Agreement, which includes claims related to the period after November 28, 2012 that are alleged or that could have been alleged in any of the complaints filed in the Interchange Fee Litigation, including, but not limited to, claims based on or relating to any interchange rules, interchange fees, or interchange rates, any Merchant Fee, or any "no surcharge" rules, "honor all cards" rules, "no minimum purchase" rules, "no discounting" rules, "non-discrimination" rules, "anti-steering" rules, "all outlets" rules, "no bypass" rules, or "no multi-issuer" rules. However, members of the Rules Changes Settlement Class may submit an objection to all or any portion of the settlement by May 28, 2013, which the Court will consider in deciding whether or not to finally approve the settlement.

The Court has scheduled a final fairness hearing for September 12, 2013, at which the Court will consider any objections submitted by Class members and during which Class members may have an opportunity to speak regarding the terms of the Class Settlement Agreement.

www.ropesgray.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions