Swipe-Fee Settlement Objections Get One Last Day In Court

What was billed as the final showdown over the mammoth interchange settlement on Thursday (Sept. 12) turned out to be as contentious as the year leading up to it. It took more than five hours for U.S. District Judge John Gleeson to listen to the parade of critics and objectors in his Brooklyn courtroom. By the end, he was clearly frustrated. "Is this ever going to come to an end without comprehensive legislation?" he asked at one point?

Well, it might if someone would actually get all the way to trial with a lawsuit over whether Visa (NYSE:V) and MasterCard's (NYSE:MA) rules for card acceptance and interchange fees violate antitrust laws. And that might happen even if Judge Gleeson approves the settlement, since both merchants, including Target (NYSE:TGT) and Macy's (NYSE:M), and card brands have already filed new lawsuits over the antitrust question. In the meantime, the judge has a pile of arguments to deal with in the weeks or months before he issues his ruling.

There was the lawyer for Home Depot (NYSE:HD), arguing that the settlement would take away the right of current and future merchants who accept Visa or MasterCard ever to sue the card brands over the rules, even if they opted out of the settlement. That violates the Fifth Amendment's Due Process Clause, he said, and objecting merchants should be able to "decide for themselves whether to tie their fate with the class representatives or go it alone."

There was the lawyer for Amazon (NASDAQ:AMZN), arguing that what was supposed to be the big win for merchants—letting them surcharge to recover interchange fees—was useless because 10 states outlaw swipe fees, and mandatory relief with no benefit for some of the "beneficiaries" had been barred by the U.S. Supreme Court.

There was the lawyer for Crate & Barrel, who pointed out that because of the way the settlement is written, any merchant taking American Express wouldn't be able to surcharge in any case. Could you stop accepting American Express? the judge asked. "It is not something we can walk away from," said Crate & Barrel's lawyer, because American Express cards are used by a quarter of that chain's customers.

There were roughly a dozen more, ranging from Walmart (NYSE:WMT) and Target to the state governments of Ohio and California, consumer groups and the owners of a gas station in Minneapolis. Some 8,000 entities that take Visa and MasterCard, representing more than a quarter of transaction volume, have objected to the settlement.

Did any of it make an impact on Judge Gleeson, who has shepherded the settlement through the past year in what was clearly the hope he would never have to sit through another hearing about interchange?

At one point the judge said he was concerned that releasing Visa and MasterCard from future interchange-rule litigation might cover territory that could not be foreseen. That echoes what court-appointed economist Alan O. Sykes, who is also a law professor at New York University, said in his report to the judge in August.

But while listening to the lawyer from 7-Eleven, Judge Gleeson said some objectors appeared to be seeking more than they could expect to obtain if they won at trial. "This is a lawsuit and to get relief, you've got to win," the judge said. "A settlement reflects the uncertainty about the ability to win." Then he added that his comment wasn't intended to send a signal about what he would decide.

The problem, of course, is that Visa, MasterCard and the banks (including Chase and Bank of America) know that's exactly what they want—to get more than they could possibly get through a trial. A get-out-of-antitrust-lawsuits-free-forever card? That's not something the judge could hand out. The only way to get that would be through a settlement.

One lawyer who helped craft the settlement complained that objectors are motivated by a "political agenda"—to get Congress to cap credit-card interchange fees, the way the Durbin amendment caps debit-card fees. Maybe they are. But even without new legislated limits, there's still the question of whether the way Visa, MasterCard and the banks set interchange rates violates existing antitrust law.

The card brands and issuers have shelled out billions in settlement money over the years to keep a series of judges from delivering a final answer to that question. Now they want to spend another $5.75 billion, possibly the largest federal antitrust settlement in history, to get it off Judge Gleeson's court calendar forever.

Maybe that's the best reason to shelve the settlement and settle the question.