Taming Credit Card Fees by Requiring the Biggest Banks to Compete for Merchant Acceptance: An Inter-Bank Competitive Model

In the multi-district class action In re: Payment Card Interchange Fee and Merchant Discount Antitrust Litigation merchants claim that the fees they pay to accept Visa and MasterCard cards are too high because the banks issuing those cards do not compete for card acceptance. Because so many of their customers rely on Visa and MasterCard cards, the merchants contend that they cannot stop accepting either brand in toto. They would risk losing too many customers. But if the banks had to compete with each other, the merchants believe, they might credibly threaten to refuse one bank’s cards, forcing it to lower its acceptance fees. The merchants also contend that they could apply competitive pressure on the card-issuing banks by steering their customers to payment mechanisms that are less expensive than credit cards. Visa and MasterCard, however, prohibit merchants from pursuing these strategies. Without the ability to spur competition, the merchants contend, the card networks’ default interchange fee is the proverbial offer they can’t refuse.In 2005, the merchants filed a class action alleging that the card networks’ rules restrained competition on card acceptance fees and thus violated the antitrust laws. After seven years of litigation and negotiation, the case has entered a settlement phase. Visa and MasterCard have offered to (1) pay the merchants approximately $7.25 billion and (2) relax their rules restraining merchants from steering their customers toward less expensive payment mechanisms. The proposed settlement, however, would not alter the rules requiring merchants to accept all Visa or MasterCard credit cards regardless of the issuing bank.This article shows that simply empowering merchants to steer customers to less expensive payment mechanisms through discounting or surcharging cannot sufficiently address the competitive problem with card acceptance fees. Restrictions in the settlement would likely prevent most merchants from using these competitive devices, and if merchants were given unfettered discretion to steer their customers, consumers could be worse off than they are now. Merchants should instead be empowered to accept credit cards on an issuer-by-issuer basis. This intuitively obvious solution has traditionally been criticized on the ground that it would undermine the efficiency of the credit card system. The dramatic growth and popularity of credit card networks demonstrates, the critics argue, that they have been doing something right. Compelling millions of card-accepting merchants to enter individual fee agreements with thousands of card-issuing banks would impose transaction costs swamping any possible savings from more competitive interchange fee setting. And the patchwork of card acceptance could frustrate and anger cardholders.This article proposes an inter-bank competitive model that would produce virtually all of the benefits of issuer-based-acceptance-fee competition with virtually none of the feared inefficiencies. Visa and MasterCard would be permitted to continue to operate exactly as they do now with one exception – any merchant could insist that one or more of the four largest card-issuing banks offer it a bilateral card acceptance fee below the networks’ default rates. Replacing the customer steering provisions in the proposed settlement with this inter-bank competitive model and revising the release provisions to exclude anticompetitive conduct relating to unforeseeable market conditions would likely satisfy the objecting merchants and thus enable relatively quick court approval, ending years of continuous litigation in credit-card markets. It would also stand a significantly better chance than the proposed settlement of actually bringing meaningful competition to the credit card acceptance-fee market.