May 25, 2010

Merchants On Verge Of Big Win In Debit And Credit Card Fee War

Merchants in the United States are on the verge of a significant victory in their long struggle to limit credit and debit card fees. 

The Senate has approved an amendment to its financial reform bill that curtails the power of the card issuers in significant ways, including requiring that the “interchange fees” charged by banks on fees on debit card transactions be “reasonable and proportional to the actual” costs of processing those transactions, and permitting merchants to offer discounts for cash payments.  Whether those limits are enacted into law, however, remains to be seen since the Senate bill must still be reconciled with the House financial reform bill – which does not contain the amendment.

Interchange fees are set by the credit card networks (Visa, MasterCard, Discover and American Express) to banks that issue those networks’ branded cards.  When a merchant accepts a credit or debit card, it loses a small percentage of each purchase price to the issuer through this fee.  For Visa and MasterCard transactions, which dominate the credit and debit markets, the fees vary from 1.5 to 2 percent of the price for credit card purchases and are approximately 0.75 percent for an average debit card purchase.  These little fees add up to big money: they totaled an estimated $48 billion in 2008.

Merchants have lobbied Congress to limit or eliminate interchange fees for years.  And a federal merchants’ putative class action in New York claims that Visa’s and MasterCard’s interchange fees result from price-fixing in violation of Section One of the Sherman Act.  According to the plaintiffs, Visa and MasterCard set their interchange rates through collusion with their member banks, which compete with each other: that is, price-fixing by competitors with the networks as facilitators.

The Senate has now given the merchants a major win by adopting an amendment by Senator Richard Durbin (D – Ill.) to the financial reform bill.  That amendment passed by a solid bipartisan vote of 64-33 despite fierce lobbying by Visa and MasterCard.

Durbin’s amendment would reform the debit card interchange system in two ways.  First, it would require debit card interchange fees to be “reasonable and proportional” to the issuers’ actual costs.  This provision addresses complaints that interchange fees, while purportedly compensating card-issuing banks for their transaction costs, in fact has steadily climbed out of proportion to such actual costs.  And the networks have continued to raise those rates in the United States at the same time as they have lowered them abroad in the face of foreign regulatory pressure, further fueling complaints that they are higher here than necessary.

Second, the amendment would direct the Federal Reserve System’s Board of Governors to establish standards for assessing whether interchange rates meet the “reasonable and proportional” standard described above. click here for more »

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Categories: Antitrust and Price Fixing, Antitrust Legislation, Legislative Updates

    March 26, 2010

    Senate Judiciary Committee Votes To Overturn Supreme Court On Resale Price Maintenance

    The Senate Judiciary Committee has voted to overturn the Supreme Court decision that gave the green light to resale price maintenance.

    The Committee has passed S. 148, the “Discount Pricing Consumer Protection Act.”  This bill would reverse the Supreme Court’s decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 887 (2007).  Leegin overruled a 1911 Supreme Court decision holding that resale price maintenance was per se illegal.

    Under Leegin, resale price maintenance is judged under the rule of reason.  Under S. 148, resale price maintenance would again be treated as a per se violation.   

    A link to the archived webcast of the Senate Judiciary Committee’s markup can be found here

    On January 13, 2010, the House Judiciary Committee passed similar legislation, H.R. 3190, by voice vote.  

    A link to the archived webcast of the House Judiciary Committee’s markup can be found here.  At this time neither the House nor the Senate has scheduled floor action on the respective bills. 

    For further information on Leegin repeal legislation, see our earlier posts.

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    Categories: Antitrust Legislation, Legislative Updates

      January 20, 2010

      Hearing Date Set for Comcast-NBC Universal Deal

      The Senate Judiciary’s Antitrust Subcommittee has announced that it will hold a hearing on the Comcast-NBC Universal deal on February 4.   The notice of hearing is available here.
      For additional information on this pending hearing, please see our earlier post here


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      Categories: Legislative Updates

        January 16, 2010

        House Judiciary Committee to Consider Antitrust Status of National Football League

        The chairman of the House Judiciary Committee, Rep. John Conyers (D.-Mich.), has announced that on January 20, the Committee’s Subcommittee on Courts and Competition Policy will hold a hearing on the Supreme Court’s pending decision in American Needle, Inc. v. National Football League

        The notice of the hearing can be found here:

        In the case below, the Seventh Circuit held that the NFL was a single entity for antitrust purposes – not a group of 32 separate companies that could conspire together. 

                    That decision can be found here: 

                    The Court granted certiorari last June and heard arguments on January 13.  The Subcommittee has not as yet released a witness list for the hearing.

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        Categories: Legislative Updates

          January 5, 2010

          Congress To Consider Comcast-NBC Deal

          News reports indicate that the Senate Judiciary’s Antitrust Subcommittee will vet the Comcast-NBC Universal joint venture in late January or early February.  The reports indicate that Comcast Chairman Brian Roberts and NBC Universal President Jeff Zucker will testify at the hearing.  

          Comcast and NBC Universal announced the $30 billion deal on December 3, 2009.  Because it combines substantial assets in television programming and distribution in one company, the deal will face considerable congressional and regulatory scrutiny.

          In addition to the expected Senate hearing, other congressional committees will likely hold similar hearings.  Under the Hart-Scott-Rodino Act, the Department of Justice will review the deal for competitive concerns.  The Federal Communications Commission will consider the communications policy aspects.

          Update 01/06/10 – For more information, see today’s Wall Street Journal article on this topic here.

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          Categories: Legislative Updates

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