The Heartland Data Breach Fight Continues

In the never-ending saga of the lawsuit aftermath of the Heartland Payment Systems data breach, Heartland and Visa last Thursday (Feb. 4) announced that "more than 97 percent" of the financial institutions that had sued them had accepted their $60 million settlement terms. That statement was obviously followed by an announcement a few days later from representatives of the three percent saying, in effect, "We're still here. See you in court."

"Visa sent customized settlement information packets to the affected financial institutions on January 14, 2010. In order to accept the settlement, a financial institution was required to affirmatively complete and return the settlement paperwork to Visa by January 29, 2010," said the statement from lawyers representing some of the impacted banks. "The offers--at least those reviewed by class counsel--appeared to be less than 10 cents on the dollar for most financial institutions and some at less than 1 cent on the dollar."

The statement said that the 97 percent acceptance was "as expected given the fact that the vast majority of the compromised cards were issued by a relative handful of mega banks. The settlement offer has now been remade to the remaining financial facilities, with Visa and Heartland giving them until Feb. 8 to decide."

"If Visa truly had the financial institutions' interests at heart, why didn't Visa give everyone 30 days at the outset to decide whether to accept the offer?" asked Joe Sauder of Chimicles & Tikellis LLP, one of the co-lead interim counselors for the financial institutions in the federal court class action case. "We have asked this question since Visa first announced the settlement. There was no reason to set an arbitrary and unreasonably short deadline."

Mike Caddell, another attorney for the group, said there's no reason for the financial companies that declined before to accept this time.

"The bottom line is that the 'renewed' deals Heartland and Visa are currently offering are precisely the same deals offered two weeks ago," Caddell said in a statement. "The calculus remains the same for the financial institutions based on their own unique damages experiences and, most important, these 'renewed' settlement offers will in no way impact the federal class action in Houston--we are committed to going forward and intend to vigorously litigate this action."