They’ve met in court before, and it looks like they’re going to meet again: Wal-Mart Stores Inc., the No. 1 retailer, against Visa Inc., the No. 1 payment card network. As usual, the subject is interchange and payment card acceptance rules.
Bentonville, Ark.-based Wal-Mart is suing Visa for alleged violations of federal and state antitrust and unfair competition laws between Jan. 1, 2004 and Nov. 27, 2012. The company is seeking $5 billion in damages, which could be trebled should it win.
Wal-Mart alleges that Visa imposed unfairly high credit and debit card interchange rates during that period, even though the retailer negotiated rates somewhat lower than those listed on Visa’s default interchange schedule. Wal-Mart also is challenging various network rules that require it to accept all Visa-branded products and Visa cards from all Visa issuers. Although Visa is the only named defendant, the suit says Visa worked closely with banks, which owned it until the network’s 2008 IPO, to impose high interchange and strict acceptance rules on merchants.
“Wal-Mart and all other merchants were subjected to rules and practices that harmed competition, suppressed fraud-preventing technology in the U.S., and inflated interchange fees charged to merchants when customers used their credit and debit cards,” a Wal-Mart spokesperson says by email. “As a result, many merchants were forced to pass on some of these artificially high fees to consumers.”
Visa declined to comment.
Wal-Mart’s lawsuit is no surprise because the retailer was one of nearly 8,000 merchants that opted out of December’s settlement of a massive class-action against Visa, MasterCard, and some banks brought by merchants and merchant trade groups beginning in 2005. That settlement, approved by Judge John Gleeson of U.S. District Court in Brooklyn, N.Y., is now under appeal. The accord calls for paying $5.7 billion in damages to the class merchants and will ease some network rules, especially the no-surcharge rules. On the other side, it will shield the networks from further merchant legal challenges.
“We continue to oppose the proposed credit card interchange fee settlement, which would give the defendants a sweeping release that poses considerable risk of abuse and does nothing to change the broken market,” the Wal-Mart spokesperson says.
A number of other opt-out retailers, including Target Corp. and Macy’s Inc., also are pursuing their own lawsuits against the networks. In an unusual pre-emptive strike last June, Visa sued Wal-Mart in the Brooklyn federal court in an attempt to undercut the main arguments the retailer might make if it sued Visa. “We’ve asked [the court] to dismiss the unwarranted suit Visa filed against Wal-Mart in retaliation for opting out and objecting to an unfair interchange settlement agreement,” the Wal-Mart spokesperson says.
Payments consultant Eric Grover of Minden, Nev.-based Intrepid Ventures thinks Wal-Mart’s argument that Visa colluded with banks is stronger for the time before the IPO, but he still doesn’t believe the company will win. “They’re beating the same dead horse they’ve been beating for the last decade,” Grover says. “The interchange wars are never going to end.”
Wal-Mart’s new suit references a major interchange lawsuit that began back in 1996 and became known as the Wal-Mart case. The litigation, which was also heard in Gleeson’s court, involved merchant plaintiffs who challenged what they said were high acceptance costs for Visa and MasterCard debit cards. Its settlement included a $3 billion payment from the networks, temporary interchange relief, and the end of rules forcing merchants to accept the networks’ debit cards if they accepted their credit cards.