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   In October, the Supreme Court chose not to review lower court decisions that MasterCard and Visa had violated antitrust laws when they barred banks that issued their cards from also issuing cards bearing competing brands, most notably American Express and Discover.
   Visa has 323 million accounts, MasterCard has 264 million, Discover has 50 million and American Express has 37.5 million, according to the companies.
   The National Retail Federation, one of the plaintiffs in the suit, hailed the Supreme Court decision to let the lower court ruling stand. That ruling made it possible for retailers to choose whether to accept signature debit transactions and opened the possibility of negotiating lower fees for those transactions.
   “This decision clears the way for increased competition in the credit card marketplace that should lead to lower costs for retailers and the consumers we serve,” said NRF senior vice president and general counsel Mallory Duncan. “NRF has been a long-time leader in the drive for reasonable transaction and interchange fees. The fees charged by credit card companies are a hidden tax on American consumers that drive up the price of products for everyone, even those who pay by cash or check. Without competition, these fees have only gotten worse.
   “As a follow-up to last year’s settlement over Visa/MasterCard debit card practices, this case is another victory in creating a level playing field between retailers and credit/debit card companies,” Duncan added. “Visa and MasterCard should not be allowed to dictate who gets into the market, and this case further enhances the right of retailers and consumers to have a choice.”
   “The decisions by the trial court and the appeals court benefit only American Express, the high priced payment option, rather than the consumers that antitrust law is supposed to protect,” said MasterCard general counsel Noah J. Hanft of the Supreme Court’s decision. “American Express may, in the short run, be able to induce a small number of financial institutions to experiment with American Express issuance in the United States. However, we believe that the vast majority of issuers, just like those outside the U.S., will realize that these arrangements stand to benefit American Express more than it benefits they or their cardholders.”
   Hanft added that issuers enticed by American Express’ higher merchant fees could find they are losing transaction volume because of the smaller number of merchants who accept American Express, particularly outside the United States.
   The Supreme Court decision was followed quickly by another lawsuit, filed by Discover Financial Services, Riverwoods, Ill. Discover filed a lawsuit in federal court in New York seeking damages from Visa and MasterCard as compensation for harm caused by anticompetitive business practices of the two associations.
   “The rejection by the Supreme Court of Visa’s and MasterCard’s appeal means that they have lost every attempt to salvage their illegal barriers that have stifled competition for more than a decade. Visa and MasterCard lost in the trial court, lost in the court of appeals, and now they have lost their appeal to the Supreme Court,” said David W. Nelms, Discover chairman and chief executive officer.
   “The courts have ruled that Visa and MasterCard abused their market power to the detriment of consumers and competition, and that their exclusionary rules limited Discover’s share of the general purpose credit card market and also barred Discover from entering the debit card market,” Nelms added. “Now that Visa and MasterCard’s anticompetitive bylaws have finally been struck down as unlawful, we are moving forward with our business plans and are seeking triple damages for the harm that those violations have caused us.”
   “We find it highly ironic that they would take this action, given the company’s past statements,” Hanft said. “In previous court testimony, Nelms maintained that the fundamental flaw in the government case was that the result would be less – not more – competition, if MasterCard’s competitive programs policy was revoked. Under cross-examination, Nelms testified that if the government prevailed, Discover would be less competitive, that consumers could be hurt, and that only American Express would benefit.”
   MasterCard believes this lawsuit is misguided, and will defend itself vigorously against any claims that Discover was injured or suffered damages as a result of MasterCard’s policy, Hanft added.
   In October, MasrterCard mandated that certain clauses be included in merchant contracts where the ISO/MSP is a party to (i.e., signs) the contract between the merchant and the member bank.
   MasterCard now requires that merchant contracts that have an ISO/MSP as a party to the agreement must state, among other things, that the:
  • Member bank is in control of MSP performance,
  • Member bank must approve in advance any merchant fee,
  • Contract may not be changed without the member bank’s express written consent,
  • MSP may not have access to merchant funds, and
  • Member bank may not waive any of the new requirements.
   iPayment, Inc. recently acquired Transaction Solutions, an ISO with a portfolio of approximately 4,000 small merchants and annual charge volume of approximately $500 million.
   iPayment expects the transaction to be accretive to its 2005 financial results, providing earnings of approximately $0.03 per diluted share.
   Commercial spending by American businesses and government entities will continue to expand by an estimated 3.6 percent next year, according to projections from the latest Visa USA Commercial Consumption Expenditure.
   Business spending is estimated to reach $14.5 trillion by the end of the year, up 4.4 percent or $577 billion from 2003. Visa economists project 3.6 percent growth in 2005 to nearly $15 trillion, with business spending steadily increasing through 2010, when it is expected to reach nearly $18 trillion.