Legal Business Blogs

Not a ‘secret cartel’: Linklaters and Milbank secure victory for Visa against major retailers

Linklaters and Milbank Tweed Hadley & McCloy have secured a judgment in favour of Visa after 12 major UK retailers, led by the Arcadia Group, sought damages in relation to Visa’s setting of interchange rates.

Mr Justice Simon ruled today (30 October) that the claim was too historic as they related to a period from 1977. Under Visa’s rules, the merchant pays a multilateral interchange fee (MIF) each time the cardholder makes a payment using the card. According to the claimants, the MIF totalled an illegal restriction of competition.

However, Justice Simon said in the judgment: ‘This is not a case of a ‘secret cartel’ operating over many years without the knowledge of victims and the authorities, and which has been discovered long afterwards. On the contrary, the existence and operation of the Visa four-party card payment system and the multilateral interchange fees were matters of public knowledge, which had been notified to the competition authorities.’

Alongside this, Marks & Spencer (M&S), Sainsbury’s and Tesco, also brought similar claims forward in regards to Visa’s interchange fees, which are still pending, although today’s decision may dispose of the historic claims.

Linklaters’ commercial disputes partner Michael Sanders represented Visa Europe, Visa Europe Services and Visa UK, instructing 20 Essex Street’s Stephen Morris QC, Brick Court Chambers’ Daniel Jowell QC and Monckton Chambers’ Anneli Howard.

For Visa Inc and Visa International Service Association, Milbank’s co-managing partner of London and head of litigation and arbitration Julian Stait instructed Brian Kennelly of Blackstone Chambers.

Stewarts Law’s competition litigation head Jonathan Sinclair, who instructed Brick Court’s Fergus Randolph QC and Max Schaefer, and Matrix Chambers’ Christopher Brown, acted for the claimants.

The 12 claimants were Arcadia Group Brands, Asda Stores, B&Q, Comet Group (which went into liquidation), Debenhams, House of Fraser, Iceland Foods, New Look, Next, Record 2 Shop (also in liquidation), WM Morrison Supermarkets and Argos.

For the other claims, Stewarts Law acted for M&S, Bingham McCutchen’s Frances Murphy advised Sainsbury’s and Mark Humphries senior partner at Humphries Kerstetter represented Tesco.

The outcome is subject to a proposed appeal.