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Originally published September 11, 2013 at 5:53 PM | Page modified September 12, 2013 at 7:37 AM

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Retailers, credit-card companies in court over swipe-fee proposal

On Thursday, supporters and opponents will sound off in a New York courtroom as part of what’s likely to be the final showdown over claims that the credit-card companies broke antitrust laws by fixing billions of dollars in swipe fees that merchants pay each year.

Minneapolis Star Tribune

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Another meaningless class action that will cost consumer millions in the end and make... MORE

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It took seven years to reach a proposed $7.25 billion antitrust settlement between retailers and Visa, MasterCard and the banks that issue their plastic cards.

It took another year to feud over the agreement.

On Thursday, supporters and opponents will sound off in a New York courtroom as part of what’s likely to be the final showdown over claims that the credit-card companies broke antitrust laws by fixing billions of dollars in swipe fees that merchants pay each year.

Major retailers have objected to the settlement as perpetuating a broken payments system, with many backing out of it altogether. Some, including Target, are taking new legal action.

U.S. District Judge John Gleeson, in charge of approving the historic settlement, will probably make a decision in 30 to 120 days.

Despite the beating the settlement has taken, class co-counsel K. Craig Wildfang as well as the defendants remain confident Gleeson will ultimately approve it.

“I think we’re likely to make some history,” Wildfang said.

Wildfang is the Minneapolis lawyer who has logged many hours in the past eight years helping represent the class of more than 7 million U.S. businesses covered by the pact. It’s estimated to be the largest private cash settlement in an antitrust class-action in U.S. history, although it has shrunk since so many retailers walked away from it.

The hearing will last just hours.

Visa and MasterCard, who have long denied any wrongdoing, are expected to repeat their position that the retailers don’t have a strong case, and that the costly litigation simply needs to end.

Lawyers for Target and Home Depot are reportedly on the speaking list. Also addressing the court will be Jeffrey Shinder from Constantine Cannon in New York, which represents the 10 named plaintiffs in the class-action lawsuit and 53 absent class members who objected, a group that includes many of the country’s biggest retailers, such as Starbucks, Best Buy, Nike and Lowe’s.

The number of retailers who opted out accounted for more than 25 percent of the total credit-card volume from 2004 through 2012, according to MasterCard and a major retail trade group, a critical threshold. The level meant the defendants — Visa, MasterCard and 13 card-issuing banks including Wells Fargo — could have pulled out of the settlement. They did not.

The exodus of retailers reduced the total cash recovery to about $5.74 billion, Wildfang said, which still qualifies it as the largest-ever private antitrust class-action settlement “by far.”

Given the shrinkage, attorneys have reduced their tab. The three law firms representing the class of retailers have reduced their request for legal fees and expenses to around $570 million.

It’s not clear how the level of objections will affect Gleeson’s view of the settlement’s fairness.

Gil Luria, managing director of Wedbush Securities in Los Angeles, said he doesn’t think it will have a big impact. The settlement was negotiated under Gleeson’s supervision and guidance, he noted.

“The judge and the settlement have been going in a certain direction for a long time,” Luria said.

Wildfang and other supporters have repeatedly defended the settlement as the best deal possible. Among other things, it abolishes the “no surcharge” rules Visa and MasterCard had, allowing retailers to pass their fees on to consumers should they choose to do so, and it allows merchants to form buying groups to negotiate better interchange rates.

It also gives retailers cash, albeit not much. Payments are expected to total about two to three months’ worth of what they paid in interchange fees.

But major retailers opted out in droves. The objectors argue the settlement perpetuates a broken system and violates their constitutional rights by limiting their ability to sue Visa and MasterCard for similar unfair practices, and other things, going forward.

The Merchants Payments Coalition, a group of retailers focused on the rising cost of swipe fees, issued a statement Tuesday suggesting the disagreements are still far from over.

“Whether or not the court accepts this proposed settlement, the problems that merchants face — which triggered the initial litigation — will remain,” it said. “The major credit-card companies that together control 80 percent of the market will continue to set credit-card swipe fees in a manner that amounts to price-fixing. There will be no competition and no transparency — key elements to a functional marketplace.”

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