Today, the National Retail Federation (NRF) and the Retail Industry Leaders Association (RILA) filed a joint brief opposing the attempt of the large banks and credit card companies to convince the U.S. Supreme Court to reinstate the unfair settlement terms of MDL1720 – the lawsuit challenging the anticompetitive behavior of the major financial services industry players in setting credit card fees. The case is captioned “Photos, Etc. Corp, et al. v. Home Depot U.S.A., Inc., et al.”
The Second Circuit vacated the MDL1720 settlement because after finding that the settlement was developed by conflicted counsel and granted the banks and card networks “permanent immunity” from scrutiny of their anticompetitive practices. In their request for an appeal of the lower court’s decision, the proponents of the settlement claimed to speak for the merchant community. In the brief filed today, RILA and NRF, which are the trade associations that actually represent the retail community on a day-to-day basis, explained that the merchant community broadly opposes the settlement and are, in fact, “united in the view that this deal is a bad one, unworthy of resuscitation.”
“Merchants and consumers continue to suffer from the anti-competitive practices of banks and card networks. The plaintiffs’ suggestion that they represent the interests of the broader merchant community defies common sense given the unprecedented level of merchant objection expressed at the Second Circuit and in today’s brief,” said Deborah White, RILA senior executive vice president and general counsel. “The Supreme Court should not grant certiorari in this case but, instead, should allow the Second Circuit’s decision to stand, thereby providing the potential for a more reasonable outcome for all parties.”
According to the brief:
“Vacating this settlement and correcting the structural flaws that led to it in the first place may allow the parties to go back to the drawing board to reach a settlement with terms that are more fair.”
“Faced with the choice between a “confiscat[ory]” release that “permanently immunizes” defendants’ anti-competitive conduct and no settlement at all—thereby preserving merchants’ future right to pursue these claims— merchants prefer the latter, further demonstrating why certiorari should not be granted.”
The brief concludes:
“For the reasons stated above and in Merchant Respondents’ Brief in Opposition, the petition for a writ of certiorari should be denied.”
The brief, drafted by Debra L. Greenberger and Andrew G. Celli, Jr. of Emery Celli Brinckerhoff & Abady, LLP, can be read here.
RILA is the trade association of the world’s largest and most innovative retail companies. RILA members include more than 200 retailers, product manufacturers, and service suppliers, which together account for more than $1.5 trillion in annual sales, millions of American jobs and more than 100,000 stores, manufacturing facilities and distribution centers domestically and abroad.