December 29, 2013

An Easing of Rules on Charges by Amex

After a decade of legal battles, the three major credit card companies are backing away from longstanding policies that prevented merchants from charging customers extra for paying with plastic.

Agreements with the three major card companies clear the way for vendors to institute what is essentially two-tier pricing.

Developments in two cases in the last week have the potential to change pricing practices everywhere from big box retailers to corner coffee shops — but whether they actually do remains to be seen.

On Thursday, a group of small and midsize businesses reached a settlement agreement with American Express in a class-action lawsuit. Under the agreement, which a judge must approve, Amex will allow surcharges to its cardholders as long as the same amount is levied on other credit and charge card users. It agreed to drop a measure that required debit card surcharges at the same level, according to a lawyer representing the company.

The deal comes less than a week after a judge approved a settlement that included a similar change of rules in a huge class-action lawsuit against Visa and MasterCard, billed as the largest private antitrust settlement in American history.

The changes clear the way for vendors of all types to institute essentially a two-tier pricing system — charging more at the register to shoppers who pay by credit than to those who use debit cards or cash.

Marc Morrison, owner of Animal Land Inc., one of the plaintiff companies in the American Express case, said that if the settlement was approved, he planned to do just that.

“What I really am pleased about is the transparency that this creates,” said Mr. Morrison, whose company provides moving services for pets to people who are relocating abroad or within the United States. “Merchants can now effectively incentivize their customers to pay with debit cards,” which carry minimal fees or none at all.

The concept is similar to a system used at gas stations in certain states, which offer discounts to customers who use cash.

But it is unclear whether large numbers of retailers would change their pricing, and some have already indicated they would appeal the terms of the Visa-MasterCard settlement, a move that could delay any impact. “Our members have no interest in surcharging generally,” said Mallory Duncan, general counsel of the National Retail Federation. “It’s too complex and it’s consumer unfriendly.”

What retailers really want, Mr. Duncan said, is lower transaction fees in the first place and more competition in the payments market.

It is already a time of upheaval in the payments industry, as PayPal, numerous start-ups and new entrants with mobile payment apps vie for a piece of a market long dominated by traditional card companies. Mr. Duncan said retailers were hoping that the new climate would intensify market forces and push down fees.

Currently, many businesses do pass on to consumers so-called “swipe fees” — which are said to generally range from 1 to 3 percent of the transaction — by building them into the price of the goods and services they sell. That means all customers pay, a system that some contend amounts to poorer consumers subsidizing affluent holders of premium rewards cards.

“To maintain the fiction that Amex and other issuers offer free rewards, retailers had no choice but to inflate the prices they charge to all customers,” said Gary B. Friedman, the lead lawyer for the plaintiff companies in the American Express case.

In approving the Visa and MasterCard settlement, Judge John Gleeson of the United States District Court in Brooklyn wrote, “For the first time, merchants will be empowered to expose hidden bank fees to their customers, educate them about those fees and use that information to influence their customers’ choices of payment methods.”

But consumer advocates were doubtful that consumers would benefit even under a more transparent pricing system. “The jury is out as to whether consumers will benefit,” said Sally Greenberg, the executive director of the National Consumers League. “We’re skeptical as to whether this money will be returned to the consumer.”

Some businesses might be tempted to keep their current prices and add a surcharge for credit-paying customers, but Mr. Morrison of Animal Land said he would not do that. The average bill for Animal Land’s services is $3,000, he said. If the settlement is approved, he will reduce that cost for cash and debit card customers, he said, though he had not determined how much the discount would be. (A 3 percent discount would amount to $2,910; 2 percent would be $2,940.)

Other businesses might not want differential pricing at all, fearing the distinction could drive customers to rivals.

That is what American Express executives predicted. “While the modification of our contract provisions gives merchants some additional flexibility, many merchants continue to believe, as we do, that surcharging is fundamentally anti-consumer,” Tim Heine, the company’s managing counsel, said in a statement.

In addition, retail representatives said at least eight states, including Connecticut, Florida and Texas, have laws prohibiting surcharges on customers for credit card use. New York had a similar law but a federal judge struck it down in October.

A number of big retailers and restaurant chains have expressed unhappiness with the MasterCard and Visa settlement, which included a payout of more than $7 billion to merchants from the credit-card giants, because it effectively bars merchants from bringing further legal action against the card companies. Many, including Amazon and Target, as well as the retail federation, plan to appeal.

The American Express settlement did not include a monetary payment


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