More and more, banks and the largest credit card networks are becoming bystanders in the long-running legal wrangling over credit card swipe fees. Taking center stage is the fight between two factions of U.S. retailers for the hearts and minds of their industry.
The latest flashpoint in this battle is a website designed to make it easy for merchants to opt out of the multibillion-dollar legal settlement that certain retailers reached with Visa (NYSE:V), MasterCard (MA) and card-issuing banks.
Merchantsobject.com was launched recently by eight retail trade associations that are fighting the proposed settlement. "Say no to Visa and MasterCard fixing fees!" reads the website's tag line. It guides visitors through the process of objecting to and opting out of the settlement. A press release announcing the site touted it as a way to take action in as little as five minutes.
But the website has drawn a quick rebuke from the merchants that negotiated the proposed settlement. That group, which includes the discount footwear chain Payless and a number of smaller retailers, are asking a federal court to require that big changes be made to the site.
U.S. District Judge John Gleeson has scheduled a court hearing for Thursday afternoon to hear both sides' arguments. He has made clear that he has the authority to require corrections to any misleading or erroneous information being circulated about the settlement.
Gleeson is expected to issue a ruling quickly, in light of a May 28 deadline for retailers to register their objections to or opt of the proposed settlement. The judge will decide later whether to approve the settlement deal.
Under the proposed settlement, merchants would receive about $6 billion from Visa, MasterCard and banks that issue their credit cards. But the card networks would continue to control how swipe fees are set, which has drawn howls from large segments of the merchant community.
Retailers that object to the settlement include 7-Eleven, Home Depot, Target, Walmart and a dozen retail trade associations. In trying to get the settlement rejected, they face an uphill fight because inaction by any individual retailer is tantamount to signaling its approval of the settlement deal.
In advance of Thursday's hearing, the pro-settlement merchants and their antagonists have laid out their arguments in court documents.
The pro-settlement merchants note that merchantsobject.com offers visitors the option of opting out of and objecting to the lawsuit, but not doing only one or the other. A merchant who objects to the settlement but does not opt out will still be eligible to receive a cut of the funds, but the site's "Opt Out & Object" page does not spell that out.
The plaintiff merchants also object to the fact that the site's references to a second, court-approved website — paymentcardsettlement.com — are not on the home page.
"The content and architecture are slanted to support the solicitation to opt-out and object," lawyers for the pro-settlement merchants wrote in a court filing.
The settlement's opponents maintain that their website is not misleading.
"There's incredible dissatisfaction with the proposed settlement," says Douglas Kantor, a lawyer who represents the National Association of Convenience Stores, one of the trade associations behind merchantsobject.com.
"The plaintiffs' lawyers here are just trying to silence critics of the agreement they came up with. It's precisely the opposite of the way they should be reacting."
A lawyer for the pro-settlement plaintiffs did not immediately return a call seeking comment. But a spokeswoman for the credit card industry sided with the plaintiffs, arguing that the dissenting merchants' website is misleading.
"With the simple click of a button, these small businesses unknowingly could be giving up their right to thousands or tens of thousands of dollars," says Trish Wexler of the Electronic Payments Coalition, which represents the card networks and banks.