Here’s a few examples of sensational headlines from July 6: “MasterCard faces £19bn claim over excessive fees; UK card users could claim hundreds in compensation”; “MasterCard facing £19bn rip-off payout: Millions could each get £450 back following case over charges imposed for processing payments”; “MasterCard could be forced to pay back £450 each to millions of customers – are you one of them?”
Here’s one example of sober reckoning from a UK payments consultant: “It is a little early for consumers to be spending their £400 ‘windfalls’ just yet,” said Tim Buckingham, a lawyer and director of Payment Services Consulting Ltd., a company providing risk and legal advice to the payments community. “This is certainly not the obvious ‘win’ that is being portrayed in the British press who have, in recent years, found it increasingly easy to attack the UK’s beleaguered banking system.”
And here’s the background: The claim is to be filed within the next month, under the UK’s 2015 Consumer Rights Act, which allows for collective damages claims for breaches of competition law. An American firm, Quinn Emanuel Urquhart & Sullivan, is handling the claim which is given weight by the 2014 European Court of Justice’s binding ruling that MasterCard charged excessive interchange fees. Lead lawyer Boris Bronfentrinker told The American Lawyer site he expects a trial sometime in 2018.
The damage amount (equal to $24 billion) is the result of a formula involving number of consumers harmed from 1992 to 2008 by the transaction fees due to the price hikes applied to goods to cover the cost of the higher fees to merchants. Follow?
Former UK financial services ombudsman Walter Merricks, advisor to Quinn Emanuel Urquhart & Sullivan, said, “There is no question that MasterCard acted illegally in the way it conducted its business, a business that affects all of us. All of us overpaid to the tune of up to £19 billion during a period lasting 16 years.”
MasterCard said it “firmly disagrees” with the basis of the claim. In a blog post, Tim Murphy, general counsel and chief franchise officer of MasterCard, and Mark Barnett, president, United Kingdom and Ireland for MasterCard, wrote in part:
“First, the European Commission decision they highlight in their press release applied to interchange fees related to transactions that cross borders within the EU. That decision did not touch on domestic UK interchange fees; those were set on very specific market conditions. Attempting to equate those two is like comparing apples to oranges.”
Buckingham said over the last 15 years, the UK courts have seen an increasing number of claims brought in respect of consumer banking issues, some of which have been overseen by the UK regulators and some by representative court actions which established ground rules for the way in which a court would deal with claims going forwards. Class actions, so familiar in the United States, have not been possible in the UK until the Consumer Rights Act.
The American Lawyer reported the claimants have more than $55 million in third-party funding for the battle, which Buckingham estimates may be much needed.
“The court process will take at least a couple of years to go to a trial, should the case not be settled– and given the sums involved you would imagine that settlement may well be unlikely, at least at the early stages,” Buckingham said. “Even after the matter goes to trial, there is a significant appeal process available to both sides and it may be some years before any final court judgement could be given that would see a final resolution of the matter.”
Buckingham raises an interesting facet to the story not being discussed in the first reports. There are ongoing interchange related cases against Visa and MasterCard, and he wondered how judgments will make sense for different claimants.
“What is interesting is how the courts will deal with both the consumer class action and the retailer claims,” Buckingham said. “It seems inequitable to have a situation where both cases could be successful, on one level it is the same ‘loss’ that retailers were, it is suggested, passing on to consumers. Why should MasterCard have to pay out ‘twice’ for the same ‘loss’?”
Finally, Buckingham is eager to see if turnabout is fair play.
“Now that interchange rates have been addressed, it will be interesting to see whether there will be a great deal of evidence to suggest that any savings enjoyed by retailers have in fact been passed on to consumers as a result,” he said. “In other jurisdictions such as Australia where interchange issues were addressed some years ago, there has never been any evidence to suggest that this was the case. The arguments also conveniently ignore the value and protection afforded to a consumer by utilizing a credit card to make a payment.”