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‘Fundamentally different’: MasterCard and Visa to face new £300m UK retailers’ interchange fee claims

Humphries Kerstetter has launched a series of new £300m competition damages claims against MasterCard and Visa, on behalf of a group of 27 UK high street companies including betting firms, online retailers and a major supermarket.

The litigation relates to alleged losses arising from MasterCard’s multilateral interchanges fees (MIFs), which form part of ‘merchant service charges’ retailers pay banks on card transactions made in store or online.

Humphries Kerstetter senior partner Mark Humphries, who is leading the new actions, said the claims are currently worth £300m, although this is expected to rise as new claimants join the action, told Legal Business.

Individual claim forms have been issued already for a majority of the new UK claimants, but there are still further forms to be lodged. The aim is to consolidate the 27 claims into one in the near future, he said.

Therium Capital Management is funding the litigation and has secured ATE insurance to allow businesses to join the claim without significant risks of liability costs, but this will be applied ‘in layers’, Humphries told Legal Business.

The new claims follow a number of similar competition damages cases brought against MasterCard.

Last year, Sainsbury’s won an antitrust damages action against MasterCard after the Competition Appeal Tribunal ruled its UK and Irish MIFs were unlawful. It ordered the global finance company to pay the UK retailer £68.5m in damages plus substantial interest. Jones Day represented MasterCard in the action, while Mishcon de Reya acted for Sainsbury’s. MasterCard sought leave to appeal.

Earlier this year, however, in a separate  claim by a group of UK high street retailers against the company, the High Court ruled that MasterCard’s cross-border interchange fees were lawful, dismissing the £450m damages case. Asda, Morrisons, Arcadia, and Homebase/Argos are currently seeking permission to appeal the judgment.

The judge, Mr Justice Popplewell, rejected the retailers’ claims on the basis that the historical charges were necessary to MasterCard’s business operation and were below any objectionable level. He distinguished between the dates of the claim period and those in the European Commission decision against MasterCard on which the claims were based.

Humphries, however, told Legal Business that these claims will be ‘fundamentally different’ from the latter high street retailers claim. He referred to evidence to be relied on in the claims.

Quinn Emanuel Urquhart & Sullivan’s Boris Bronfentrinker led the team which issued the first consumer opt-out £19bn class action against MasterCard in 2016, brought by representative Walter Merricks.

A MasterCard spokesperson told Legal Business in regard to the new claims: ‘We remain committed to our retail partners and will continue to focus on helping grow their businesses and encouraging the adoption of ever more convenient, safe and secure payments.’

Visa declined to comment.