The U.S. Supreme Court on Monday rejected an attempt by certain retailers and credit card companies to revive a $7 billion settlement over allegedly fixed swipe fees.
The justices offered no reasoning for their decision, as is customary.
Lobbying groups including the National Retail Federation and the Retail Industry Leaders Association, as well as Wal-Mart Stores Inc., Home Depot and other merchants, urged the court to reject the appeal earlier this year, arguing that the Second Circuit rightly stuck down the settlement in 2016 because the “backroom deal” only benefited Visa and Mastercard.
Mallory Duncan, senior vice president and general counsel of the NRF, said the decision “drives a stake through the heart of the old settlement,” which a number of retailers didn’t like from the beginning.
“The ideal thing would be if competent counsel would take this case to trial and break the anticompetitive activity of Visa and Mastercard,” Duncan said. “We just want an open and competitive marketplace for retail.”
He said the now-dead settlement “would have done nothing” to curtail swipe fees in the future, but would have prohibited retailers from pursuing any similar antitrust claims against Visa and Mastercard in the future.
“It was nobody’s idea of a good settlement,” Duncan added.
Wal-Mart spokesman Randy Hargrove echoed that sentiment, saying such a “sweeping release of merchant rights” was an issue for the megaretailer.
“It would have also stifled innovation around new payment technologies and left consumers facing continually increasing hidden swipe fees, which already cost them tens of billions of dollars each year,” Hargrove added.
Counsel for the merchants who petitioned the Supreme Court to take up the case could not be reached for comment.
The settlement at issue stems from a 2005 lawsuit alleging that credit and debit card swipe fees were basically the result of industry price-fixing, because Visa and Mastercard set the fees for about 6,000 banks, essentially eliminating true market competition.
Although the settlement offered a monetary payout for retailers that had been affected by the swipe fees, instead of lowering fees going forward, the NRF and RILA said the arrangement merely proposed that the cost be “passed along” to shoppers as a surcharge.
After the NRF succeeded last year in convincing the Second Circuit to block the deal, which the court found to offer little more than “permanent immunity” to the banks from scrutiny of possibly anticompetitive fee practices, merchants who favored the settlement petitioned the Supreme Court to weigh in, citing the “importance” of the deal.
The case will now remain pending in New York federal court, where it could go to trial if the parties don’t reach a new settlement.