Credit Card Pact No Deal for Consumers

By Jennifer Waters

The $7 billion settlement between Visa, MasterCard, some large banks and retailers, if approved, sends a strong message to consumers: Buck up and plan on paying for the privilege of using a credit card for any other payment method.

“If you’re using an additional service when you shop you’ll be paying for that service,” said Anisha Sekar, vice president of credit and debit products for online financial-products reviewer NerdWallet. “Everyone who uses cash has been subsidizing credit-card holders for years.”

The antitrust settlement announced late Friday, which still needs to approved by a judge, calls for the card giants and large card-issuing banks to pay more than $7.25 billion in penalties and payment fees to retailers who claimed Visa and MasterCard had price-fixed interchange fees. Commonly referred to as “swipe charges,” interchange fees are charged on each credit-card transaction.

The agreement will allow retailers, for the first time since credit-card use has been in place, to slap a surcharge on consumers who pull out plastic rather than cash for their purchases. Visa and MasterCard have never allowed that for fear that it would thwart credit-card use. But retailers have increasingly complained about the rising fees on credit-card purchases, which surpassed items bought with cash and checks in 2003. The agreement does not lower or level those fees.

“The reforms achieved by this case and in this settlement will help shift the competitive balance from one formerly dominated by the banks (that) controlled the card networks to the side of merchants and consumers,” Craig Wildfang, the retailers’ top attorney from Robins, Kaplan, Miller & Ciresi law firm, said in a statement.

More than $6 billion will be for “alleged past damages,” according to a news release announcing the pact. Another $1.2 billion is a reprieve of sorts in which Visa and MasterCard will cut the costs it charges merchants to accept plastic for eight months. The agreement does not include debit-card purchases.

Though the settlement was widely reported as a victory to retailers, the National Retail Federation and the National Association of Convenience Stores said it falls short of solving the biggest culprit in the credit-card world: those swipe fees Visa and MasterCard charge on each transaction. The fees vary broadly, based on the merchant and which card is used, and are widely criticized by merchants for their opaqueness. They can range anywhere from less than 1% of the transaction to approaching 5% and tend to be higher for smaller merchants than larger, national retailers.

“The initial responses to the settlement are decidedly negative because it doesn’t even begin to solve the problem that swipe fees are set in a noncompetitive market,” said Mallory Duncan, the NRF’s general counsel. Merchants pay out some $30 billion annually in swipe fees, which Duncan considers hidden fees because many merchants don’t even know how they’re determined.

“Nothing in this proposed settlement requires that merchants be told how much the hidden fees are,” he said.

Whether retailers actually charge consumers more at the cash register when they pull out credit cards, or do as many gas stations do today—offer a discount for cash—will take months, even years, to play out.

“It’s coming to consumers’ attention that these costs exist and there’s increasing pressure on merchants to make a profit in a very tough economic environment,” Sekar said. “Consumers are no longer shielded to that reality.”

There’s still a possibility that the settlement will either be rejected by retailers or even the courts when a judge reviews it within the next year.

On Tuesday, the Retail Industry Leaders Association sent a please-make-a-law letter to Congress. “The U.S. electronic payments market is broken and it is in desperate need of reform,” said the letter, signed by Katherine Lugar, executive vice president of public affairs for the industry trade group.

“It’s a mess,” NACS attorney Doug Kantor said about the settlement. “There are lots of conditions on this.”

Some of those conditions can be anticompetitive and rather than enhance consumers choices, take some away, Kantor said.

Among them is one in which merchants will be forced to add charges to consumers using payment options like PayPal if they put surcharges on Visa or MasterCard transactions. PayPal’s rules don’t allow surcharges now.

“Merchants will either have to surcharge PayPal or drop PayPal,” Kantor said. “Those are very potent tools that Visa and MasterCard have against upstarts like PayPal if this deal goes through.

“This is not going to change any of the fundamental problems in the marketplace,” Kantor said.

“Consumers are the losers today and consumers will be the losers if this agreement goes through,” he said.

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