ABA Recommends Members Opt Out of Swipe Fee Settlement

Printer-friendly versionPrinter-friendly version

In an April 19 e-mail to bookstore members regarding the class action settlement over rapidly rising Visa and MasterCard swipe fees, the American Booksellers Association recommended that members opt out and object to the settlement. In the e-mail, ABA CEO Oren Teicher said this option was the “most complete way to express your opposition to the settlement.”

ABA bookstore members should have received a settlement notice as part of the proposed class-action settlement of a federal antitrust lawsuit over rapidly rising Visa and MasterCard credit card swipe fees. The settlement notice offers merchants several options: to file a claim for monetary damages (equal to approximately two months’ worth of interchange fees); to opt out of the settlement; to object to the settlement; or to opt out and object to the settlement. The deadline to file is May 28, 2013.

In his e-mail to booksellers, which included an attached “Settlement Summary” that provides the pros and cons of each option as well as forms that allow booksellers to opt out and object, Teicher noted, “After very careful consideration — and consultation with other retail associations — ABA is recommending that booksellers opt out and object to the settlement….

“In short, it is our belief that the settlement does not offer meaningful changes to the interchange or ‘swipe fee’ rules that are the centerpiece of the case. And, importantly, the settlement denies all current and future merchants their right to bring future legal action related to interchange rules and rate setting, among other things, against Visa, MasterCard, and the banks.”

By opting out and objecting, booksellers will also get the best protection from any argument that they have accepted the settlement’s release terms, and they will be entitled to sue for past damages, Teicher said.

Judge Gleeson, the United States District Court Judge presiding over the Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, has directed that retailers be reminded that opting out of the settlement and objecting to it are entirely distinct actions, and that as far as the Court is concerned, the persuasiveness of a merchant’s objection is the same whether or not the merchant who objects has also opted out of the proposed settlement.

It is important to note that the decision whether to accept the settlement, to object to it, or to opt out and object to it is up to booksellers. However, if a bookseller takes no action the court may interpret silence as total acceptance and support of the terms of the settlement.

A fairness hearing in the swipe fee case is scheduled for September 12. Booksellers who wish to opt out and object electronically can go to merchantsobject.com.

Booksellers with questions about the settlement or those who would like a copy of the Settlement Summary should e-mail ABA Senior Public Policy Analyst David Grogan.