Visa, Wal-Mart Settle Wal-Mart’s Interchange Opt-Out Lawsuit

Visa Inc. and Wal-Mart Stores Inc. have settled a 2014 antitrust lawsuit the huge retailer filed against Visa that sought $5 billion in damages, Visa reported.

Disclosure of the settlement comes in a brief passage in Visa’s annual report for fiscal 2015 ended Sept. 30, which Visa filed with the Securities and Exchange Commission on Friday. The report does not give details of the settlement, but indicates it could be terminated if the bank card networks’ controversial settlement in a bigger merchant antitrust class-action case known as MDL 1720 is overturned.

“Visa has reached a settlement agreement with Wal-Mart Stores Inc. and its subsidiaries, which will terminate if, following all appeals, the MDL class settlement is reversed or vacated with respect to certification of the … settlement class or the consideration provided to or release provided by that class,” the filing says.

Bloomberg reported in October that Visa and Wal-Mart were discussing a possible settlement. A spokesperson for Bentonville, Ark.-based Wal-Mart confirmed Visa's disclosure is accurate but would not comment further. Visa did not respond to a Digital Transactions News request for comment.

MDL 1720 consolidated various lawsuits dating back to 2005 that merchants filed against Visa, MasterCard Inc., and some big banks that alleged the networks’ interchange-setting practices and certain card-acceptance rules violated federal antitrust laws. The parties settled in July 2012 in U.S. District Court in Brooklyn, N.Y. The deal called for the defendants to pay more more than $6 billion in damages to class merchants and temporarily reduce credit card interchange, and also relax certain rules, particularly restrictions on merchant surcharging. In return, the merchants were to agree not to sue the networks again over interchange and rules.

Many merchants, however, balked at the terms and opted out of the damages part, reducing the prospective payout to $5.7 billion. Some, including Wal-Mart, went on to file separate antitrust suits against the networks, and some also appealed to the Second U.S. Court of Appeals. Visa’s annual report says that beginning in May 2013, “more than 50 opt-out cases have been filed by hundreds of merchants in various federal district courts, generally pursuing damages claims on allegations similar to those raised in MDL 1720.”

Some lawsuits also accused Visa of monopolizing or attempting to monopolize the debit card market, and one case seeks an injunction against Visa’s Fixed Acquirer Network Fee (FANF). Visa instituted that controversial fee in 2012 in an attempt to drive more transactions to its network.

Including the Wal-Mart settlement, Visa says it has now settled with merchants representing about 48% of Visa-branded payment card sales volume of merchants that opted out. That’s up from the 27% that Visa reported after its fiscal 2015 third quarter ended June 30.

MDL 1720 is in trouble not only because of opposition by many merchants, but also because of allegedly improper conduct by two attorneys, including one for MasterCard.