Two mammoth class actions against Mastercard and Visa will be heard together at a trial in November to resolve common issues about whether retailers passed on the credit and debit card giants' fees to consumers, a London tribunal has ruled.

Visa and Mastercard Trials Hearing  : Tribunal Ruling

The Competition Appeal Tribunal (CAT) ruled on Friday that a £10 billion ($12.7 billion) consumer group action claim against Mastercard can be considered alongside a group of retailers suing both Mastercard and Visa over their interchange fees. The aim is to collectively decide issues concerning the "passing on" of allegedly unlawful fees.

Despite the minimal overlap between the two cases, the tribunal determined that hearing them together would prevent inconsistent rulings. Evidence related to passing on will be heard at a hearing at the end of 2024, with closing submissions scheduled for 2025.

"It seems to us that the most natural case management solution is to grant the application," CAT Judge Marcus Smith said. "We are also confident that we have the ability to manage preparations for the timetable to trial (and the timetable itself) so that all parties have a fair opportunity to present their case."

Visa and Mastercard Trials Hearing : Background on Fees

The fees, known as multilateral interchange fees, are paid by businesses to their acquiring lenders to accept payment by debit or credit card. These fees are estimated to constitute up to 90% of the monthly bank charge of a typical business.

Consumers, represented by solicitor Walter Merricks, allege that they paid higher prices in shops between 1992 and 2008 due to excessively high swipe fees charged by Mastercard. Retailers are separately seeking reimbursement for "unlawful" interchange fees charged by the card companies for accepting payments throughout the European Economic Area since 2016.

Previous Findings

The consumer class action, brought under the U.K.'s collective proceedings order regime, arises from a European Commission finding in 2007 that Mastercard had infringed the bloc's competition law by imposing the fees on retailers. The commission also found in 2002 that Visa's fees in the European Economic Area restricted competition.

The tribunal noted that the Merricks proceedings cover a period partly predating the period covered by the retailers' claim. It added that "there is obviously considerable similarity in the pass-on issues arising in both sets of proceedings, such that a question of ensuring consistency arises."

Judge Smith added that it would be "most unfortunate, even as between temporally segregated claims, for questions of pass-on to be decided differently, when those questions are (in substance) quite possibly the same. That risk is best avoided if the pass-on questions in the two sets of proceedings are heard together."

Legal Representation

Judge Smith sat on the panel for the tribunal with Ben Tidswell and Professor Michael Waterson. Merricks is represented by Mark Simpson KC of Fountain Court Chambers and Jack Williams of Monckton Chambers, instructed by Willkie Farr & Gallagher LLP. Mastercard is represented by Matthew Cook KC and Owain Draper of One Essex Court, instructed by Freshfields Bruckhaus Deringer LLP. Visa is represented by Daniel Piccinin KC of Brick Court Chambers and Aislinn Kelly-Lyth of Blackstone Chambers, instructed by Linklaters LLP and Milbank LLP.

Some merchant claimants are represented by Mehdi Baiou of One Essex Court, instructed by Stephenson Harwood LLP and Scott+Scott Attorneys At Law LLP. Primark and Allianz are represented by Tristan Jones KC of Blackstone Chambers. Full counsel details were not immediately available.

Visa and Mastercard Trials Hearing  : Case Details

The cases are Merchant Interchange Fees Umbrella Proceedings, case number 1517/11/7/22, and Walter Hugh Merricks v. Mastercard Inc. and others, case number 1266/7/7/16, in the Competition Appeal Tribunal.