Two of the largest retailing companies have filed a lawsuit against Visa U.S.A., claiming the bank card association illegally forces merchants to accept debit cards.
Wal-Mart Stores Inc. and The Limited Inc., in what they characterized as a class action on behalf of all retailers, accused Visa of coercing equal treatment of Visa Check cards and credit cards.
The suit, filed last Friday in U.S. District Court for the Eastern District of New York, alleged that the tying of debit and credit card acceptance violates antitrust laws. The retailers are seeking an unspecified amount in damages.
The action, a flareup of longstanding tensions between the bank card and retailing industries, did not extend to MasterCard International, even though its policies are similar to Visa's. Industry sources speculated that MasterCard may have shielded itself through its recent cobranding agreement with Wal-Mart, the nation's biggest retailer.
But because Visa and MasterCard are owned by virtually the same banks, the lawsuit has the same potential effect on the U.S. banking community as if MasterCard were named.
The suit describes the approximately 2,800 banks that issue both Visa credit and Visa Check cards, and some 1,000 banks that are "acquiring members" of both Visa and MasterCard, as co-conspirators.
Retailers have long argued that credit cards and debit cards should be priced differently, and that they should have the freedom to decide what kinds of payments they accept. Under MasterCard and Visa rules, all their cards must be acceptable at any retail location that displays those logos, regardless of card type.
Wal-Mart and The Limited, among others, have contended that debit cards are more akin to cash and check transactions, which cost them less than credit cards. Recent growth in the Visa Check program - Visa said check cards increased 49% in the second quarter - led to Visa U.S.A.'s being singled out in the lawsuit, said Wal-Mart spokeswoman Betsy Reithemeyer.
The suit said Visa Check cards were used last year in approximately 556 million retail transactions, generating $22 billion in sales.
The complaint estimated that merchants paid at least $250 million in fees on that activity. That total supposedly would have been less than $33 million if processed through on-line systems such as regional automated teller machine networks. (Visa Check and MasterMoney payments are cleared "off-line," with some delay, like credit cards).
If those purchases had been made with cash, checks, or travelers checks, those same sales would have cost "well below" the $33 million estimated, the legal filing said.
"Retailers are willing to pay fees," said Paul Martaus, an electronic payments consultant in Clearwater, Fla. "The issue since day one with debit is that the fee they pay varies with the transaction amount."
The lawsuit claimed a Visa credit card transaction costs merchants 1.25% of the sale, or $1.25 on $100. The Visa Check fee on the same sale would be 1.04% plus six cents, or $1.10. On-line debit networks' fees go as low as five cents.
Visa officials, who saw the lawsuit for the first time Wednesday, said it is still cheaper for merchants to clear a Visa Check transaction than a credit card purchase.
"The plaintiffs are wrong on the facts and the law," said Paul A. Allen, Visa's executive vice president and general counsel. "The rule that is being attacked has been a cornerstone of the Visa product and market for the past 25 years."
"Visa will pursue this with all due vigor," said Mr. Martaus. "It challenges their livelihood."
Visa has a long and successful record of turning back such legal attacks. It beat a 1984 price-fixing suit by Nabanco, a merchant processing company now owned by First Data Corp. In the 1990s, Dean Witter, Discover & Co. was unable to crack Visa's exclusive bank-membership policy.
In 1983 Nordstrom Inc. of Seattle stopped accepting Visa's debit card to protest the credit-debit tying requirement, which jeopardized its status as a Visa merchant. Nordstrom brought, but quickly dropped, a lawsuit against the card association - and later offered a cobranded Visa card.
One legal observer, who did not want to be named, said the Wal-Mart and Limited claims against Visa will be difficult to prove "because the case does not fit into the traditional antitrust box. Most antitrust cases fail."
The lead attorney for the retailers is Lloyd Constantine of Constantine & Partners, New York, a former antitrust chief in the New York State attorney general's office.