Second Circuit Refuses to Hear Expedited Appeal of Preliminary Settlement Approval in Credit Card Swipe-Fee Case

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

The U.S. Court of Appeals in New York City has denied a request for expedited review of the preliminary approval of a settlement that would resolve an antitrust action against Visa, MasterCard, and major U.S. financial institutions, resolving merchants' allegations that credit card issuers conspired to fix swipe fees, or charges that retailers pay to accept credit cards (In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, December 10, 2012).

The court denied the motion by Home Depot U.S.A., Inc. for expedited briefing, oral argument, and decision. An appeal will have to wait until after the federal district court in Brooklyn grants final approval to a settlement or has otherwise entered a final judgment.

On November 9, the federal district court granted preliminary approval of the proposed settlement. It also denied Home Depot's motion for certification for interlocutory appeal.

The settlement would provide an estimated $7.25 billion to the merchants who accepted Visa and MasterCard credit cards and debit cards in the United States since 2004. It would resolve the merchants’ claims that the payment card networks violated federal antitrust law by artificially inflating the interchange fees that the merchants paid on payment card transactions. The settlement is considered to be the largest ever in a private antitrust case.

The motion for preliminary approval was filed by mostly smaller merchants supporting the agreement. The National Retail Federation and a number of large retailers had asked the district court to reject the settlement. The trade group has said that the settlement is “unfair” and “does virtually nothing” to protect customers and address retailers’ concerns about credit card swipe fees charged by Visa and MasterCard.

The case is 05-MD-1720 (Docket Nos. 12-4671(L), 12-4708(Con), 12-4765(Con)).