Another antitrust lawsuit has been filed against Visa and MasterCard, one that experts say draws on allegations already brought against the card companies by the U.S. Department of Justice and national retail stores.
The latest attack is on the 1% fee that both associations charge for currency conversion. Consumers incur the fee when they make purchases abroad. The lawsuit - which names Visa International, Visa U.S.A., and MasterCard International - says the fee is unfair because "there is no rational relationship between the additional cost to the defendants of a foreign card charge and the currency conversion fee defendants levy."
Visa and MasterCard must respond by Tuesday to the lawsuit, which was filed Feb. 15 in California State Superior Court in Alameda County. Neither company would comment directly on the litigation. However, a Visa spokesman said Visa is not alone in charging a fee for currency conversion; hotels and independent currency exchanges also do so.
Under Visa policies, member banks are charged a fee equivalent to 1% of the purchase price of each item bought in another country. Some banks absorb the fee, and some pass it along to the customer, the Visa spokesman said.
The lawsuit, filed by Adam A. Schwartz, says that over the past four years, Visa has taken in about $500 million in currency conversion fees, and MasterCard has reaped about $200 million.
The suit states: "The currency conversion fee is not an attempt to recoup the trivial costs, if any, incurred by defendants in connection with foreign card charges, but rather an attempt to create an unconscionable profit center from a fee defendants implement in a deceptive manner." Among the allegations in the lawsuit are that Visa and MasterCard do not disclose the fee to consumers, thus violating the Truth in Lending Act.
The fees do not appear on cardholders' monthly statements, but are spelled out in customers' cardholder agreements. The complaint says, "many of these disclosures are vague, misleading, and incomplete." Often the disclosures do not give the amount of the fee - only the existence of a fee, the complaint says.
MasterCard spokeswoman Sharon Gamsin said, "Cardholders use their MasterCard cards around the world millions of times a year to make purchases and to get cash even though they have many other options."
But the complaint said that in practical terms, customers cannot avoid the currency conversion fee because "a credit card has become a necessity for persons traveling abroad, and there is no close substitute payment method." Some hotels and car rentals will not do business with people without a major credit card, the lawsuit states.
These fees are not new, but they are "an issue now," said Thomas F. Schrag, a lawyer at Schrag & Baum PC of Berkeley, Calif., a firm involved in the case. Also involved is the prominent class action firm of Milberg Weiss Bershad Hynes & Lerach LLP of San Francisco.
"No one knew about the fees," Mr. Schrag said. "Our client just noticed them. It took some digging."
Curiously, the client, Mr. Schwartz, says in his complaint that he doesn't have a credit card. But his lawsuit says he filed "on behalf of the general public" and seeks to eliminate the currency conversion fees as "a private attorney general." Mr. Schrag said the complaint might be broadened to include American Express Co., which also levies currency conversion fees.
Legal experts say Visa and MasterCard have been under a microscope since major retailers sued the card associations in 1996 and the Department of Justice filed an antitrust lawsuit in 1998. The retailers' complaint, which also alleges antitrust violations, is about debit card acceptance and interchange rules. The government is focusing on the membership rules of the associations.
The two cases are closely aligned, so much so that the government is a party to the retailers' case, which is also known as the Wal-Mart case, after one of the original plaintiffs. The government case goes to trial in June, and the retailers' case is to begin in November.
The currency fee lawsuit "is a clear attempt to ride on the coattails of the DOJ," said Anita Boomstein, a card payment specialist at the New York law firm of Hughes Hubbard & Reed. "They are trying to use that [case] as a basis for alleging that other aspects of their business are not competitive."
Many of the antitrust allegations in the currency fee complaint mirror the allegations in the other two lawsuits. The new lawsuit refers to the "co-ownership and overlapping financial interest" between Visa and MasterCard, alleging that the card companies "essentially operate as a single business enterprise with a shared community of interest." These are central points of the Wal-Mart and government cases.
There are other overlapping issues. The law firm Milberg Weiss also represents Payless Shoe Stores, which is a party in the Wal-Mart case. Payless sued Visa and MasterCard separately after the Wal-Mart case had been filed, said Lloyd Constantine of Constantine & Partners, the lead law firm representing the retailers. The Payless case was consolidated into the Wal-Mart case, Mr. Constantine said, and there are 12 other companies seeking separate legal representation against Visa's and MasterCard's debit card rules. All the cases have been folded into the larger one.
Mr. Constantine said the Wal-Mart and government cases have "opened up Visa and MasterCard to scrutiny." These lawsuits have "created the impression that the card associations are more vulnerable," he said.