Independent operators of automated teller machines want to make sure they don't get lumped together with the nation's retailers in the ongoing wars over interchange fees.
The National ATM Council filed a court motion Monday seeking to be excluded from the proposed $7.25 billion settlement of a lawsuit brought by merchants over credit card swipe fees. If the ATM operators get included in the lawsuit's settlement, it could preclude them from pursuing their own grievances against Visa (NYSE:V) and MasterCard (MC).
The cash-machine operators argue that because the fee structure for debit-card purchases is different from that for ATM withdrawals, the issues should be handled separately. For debit card purchases, the retailers pay fees to the card networks, while money flows in the opposite direction with respect to cash-machine transactions.
In the suit, retailers argued that the card networks thwarted competition, resulting in higher interchange fees.
Under the proposed settlement announced in July, the card networks and banks that are defendants in the case would pay billions, to be split between millions of merchants nationwide. (The payment networks and banks would retain control over the pricing of credit card interchange fees — a provision that has dismayed many of the nation's largest retailers, which are pushing to get the settlement deal rejected.)
At issue with ATM operators is whether the proposed settlement is so broadly written that it would sweep in interchange fees on ATM withdrawals.
"Under the network rules, 'interchange' for ATM operators is not the same thing as 'interchange' fees paid by merchants," said Bruce Renard, executive director of the National ATM Council.
According to Monday's court filing, the cash-machine operators have sought assurances from the suing retailers and the card networks that their proposed settlement does not impact ATMs. Lawyers for the suing merchants have given their verbal agreement, but nothing in writing, and the lawyers who are representing the card networks and banks have not responded, according to the court motion.
A spokeswoman for the Electronic Payments Coalition, a group that speaks for the card networks and banks in the swipe fee litigation, declined to comment on Monday's filing.
In October 2011, the ATM operators filed their own lawsuit against Visa and MasterCard, challenging the fees charged when consumers withdraw cash from an ATM that is not owned by a financial institution.
In the lawsuit, the plaintiffs accuse Visa and MasterCard of anticompetitive practices. The suit claims that the two card giants unlawfully control the fees that ATM operators are allowed to charge for transactions processed over third-party networks, preventing them from charging lower prices when customers withdraw money using transaction networks that are not affiliated with Visa and MasterCard.
Visa and MasterCard filed a motion to dismiss the suit, and that motion is currently pending before U.S. District Judge Amy Berman Jackson.
The two leading card networks are thought to have much less potential monetary exposure in the ATM suit than they do in the case brought by retailers.
Still, Visa and MasterCard potentially stand to benefit if the ATM operators are swept into the larger case, because the suing merchants have tentatively agreed to a broad release from future litigation under the terms of the proposed settlement.