Three New York merchants want a federal judge to remove legal immunity for Visa and Mastercard from a 2019 damages settlement over card interchange fees that covers millions of merchants.
The request for summary judgment was put to U.S. District Judge Brian Cogan in Brooklyn, New York, on Tuesday. That action came from a lawsuit the merchants filed the same day against Visa and Mastercard in the Southern District of New York in Manhattan. They’re requesting the judgment from Cogan to allow for their complaint against the networks to proceed in the other court.
The Brooklyn court retains jurisdiction over the 2019 settlement, which allowed for about $6 billion in monetary damages for an estimated 15 million U.S. merchants, according to the new lawsuit. The class period for that prior lawsuit was 15 years, through early 2019; the new lawsuit would cover a class seeking damages from card fees they paid since January 2019.
“In effect, Visa and Mastercard sought to purchase through settlement a license to continue violating the antitrust laws—immunizing themselves from damages claims while they continued their same course of harmful conduct,” according to the complaint.
Removing the legal immunity component will not affect the rest of the settlement, leaving the networks to defend themselves in court, the plaintiffs wrote Tuesday in their summary judgment filing. They want Cogan to affirm that the legal release terms of the settlement don’t preclude the claims in their fresh lawsuit, which says the networks have collected more than $700 billion in card fees since January 2019.
“If defendants wanted to stop being sued for violations of the antitrust laws, they should have stopped violating the antitrust laws,” New York attorney Jason Bressler wrote in the latest lawsuit. He also filed the judgment request in Cogan’s court.
A Visa spokesperson declined to comment on the lawsuit and judgment request. A Mastercard spokesperson did not respond to an email seeking comment.
The 2019 settlement provides the networks with legal leeway to avoid “claims arising from the same ongoing conduct through August 8, 2028,” according to the summary judgment motion Bressler filed.
Bressler represents the plaintiffs in the new antitrust lawsuit in Manhattan: Falafel Taco, Quaker Hill Tavern and Carmine Minardi NYC. The former two are restaurants in Westchester County, north of New York City, and the latter is a hair salon in Manhattan, according to their complaint.
The future release provision resulted in some class members “receiving inadequate representation and inequitable treatment” because the damages were not distributed based on the class period harm, the merchants contended, offering the example of a merchant that accepted Visa or Mastercard payments for a single day during the class period.
“That merchant was compensated for a single day of harm and, in exchange, released many years of future claims. The relief for this merchant was so marginal as to be almost non-existent; yet the sacrifice was immense,” the plaintiffs wrote.
The Second Circuit U.S. Court of Appeals upheld the 2019 settlement but “declined to decide whether the future release was lawful,” according to the motion.
Some major merchants opted out of the 2019 settlement to pursue their own damage claims, including Target, Nike and Panera Bread. A trial by a merchants group led by GrubHub Holdings is scheduled for a September trial in Chicago.
Separately, Cogan has scheduled a hearing Monday to hear arguments over a proposed settlement covering injunctive relief for millions of merchants. A prior proposed settlement for that injunctive relief was rejected by a different federal judge in 2024.
