Wednesday, April 3, 2013
The retail trade associations are members of the plaintiff class but object to the terms of the proposed settlement. In an April 1 order, Federal Eastern District of New York Judge John Gleeson claimed the authority to require the websites to correct content if he finds it to be misleading or erroneous. He set oral arguments for April 11.
Merchants Object! is not backing down. On April 2, 2013, the website issued a press release urging nonprofit organizations to join the effort to stop the settlement. The negotiating attorneys are objecting to content similar to what was contained in the release.
In a request for an order modifying content on the websites, the negotiating attorneys – led by K. Craig Wildfang of Robins, Kaplan, Miller & Ciresi; H. Laddie Montague, Jr. of Berger & Montague, P.C.; and Bonny Sweeney of Robbins Geller Rudman & Dowd LLP – told the court, "these sites omit a neutral discussion of the settlement's terms and benefits, in places misstate them, and fail to fully and fairly apprise class members of their alternatives and the consequences of those alternatives."
The attorneys claim the content of the websites is slanted to support the argument that merchants should opt out of the proposed settlement. They believe the site offers merchants the opportunity to download "ambiguous boilerplate objections and opt-out requests" but fails to state that the information is not part of the court-approved notice program.
The plaintiff negotiators said their clients are encouraged by the websites to both object to the settlement and opt-out. They claim their clients do not fully understand following those directions could lead to needlessly forfeiting the right of recovery if the settlement is approved.
"Class members have a right to receive accurate and impartial information about the case and proposed settlement, their options and the consequences of their options to inform their decisions," the negotiators stated. "These unauthorized and misleading communications from the trade association plaintiffs pose a real threat of confusing class members and undermining the court-approved notice processes."
The trade associations specifically attached to the Merchants Object! website and named by the plaintiff negotiators in the order request are the National Association of Convenience Stores, National Association of Truck Store Operators, National Cooperative Grocers Association, National Community Pharmacists Association, National Grocers Association and National Restaurant Association.
On trade association websites, plaintiff class members are directed to contact lawyers at Constantine Cannon LLP, the firm that negotiated a settlement in a previous antitrust complaint brought against the card companies alleging anti-competitive interchange rate setting practices. The current settlement attorneys object to this. They stated that Constantine Cannon "appears to be advising the content of the sites as well as the use of this program to solicit opt-outs as it represents each of the trade association plaintiffs."
In its April 2 press release, Merchants Object! urged nonprofits to notify the court of the "problems" with the proposed settlement by objecting and opting out of the settlement through a link on the website. The website states that the settlement is "one-sided" because it allows Visa Inc. and MasterCard Worldwide to "price-fix swipe fees" for their banks.
"Organizers also feel the settlement is minuscule considering the defendants are accused of price-fixing in order to secure fees that now are more than $50 billion a year," Merchants Object! stated, adding that published reports estimate banks and card networks make about $250 million a year from charitable donations placed on credit or debit cards.
In addition, Merchants Object! repudiates the proposed settlement's releasing card companies from future liability for anti-competitive rules currently in place. 
Editor's Note:
The Green Sheet Inc. is now a proud affiliate of Bankcard Life, a premier community that provides industry-leading training and resources for payment professionals. Click here for more information.
Notice to readers: These are archived articles. Contact names or information may be out of date. We regret any inconvenience.
