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Funding a Credit Crunch: How Litigation Finance Has Fueled Global Actions Against Visa and Mastercard

Mastercard and Visa are no strangers to legal action, having endured class actions and legal challenges all over the world. Currently, a collective action funded by Bench Walk Advisors accuses the credit giant of illegally overcharging Multilateral Interchange Fees (MIFs) in the UK.

It has been asserted that MIFs, here charged as a percentage of each purchase, are unlawful. If the courts agree, merchants will be compensated for the money lost—possibly with interest. A similar case was recently settled in Canadian courts. Merchants across Canada will share a $131CA million settlement for businesses accepting Visa and Mastercard since 2001.

Given these developments, we thought it prudent to take a look back at the Visa and Mastercard claims. What happened? How did we get here? How are litigation funders impacting the case? And what can we expect from all of this going forward?

So, without further ado…

The Story Behind the Case

Visa and Mastercard have been accused of overcharging merchants on multilateral interchange fees, or MIFs. This fee is charged to the merchant’s bank in every credit card transaction. It also makes up the largest portion of the Merchant Service Charge—which is assessed simply so that the merchant may accept Mastercard and Visa payments from customers.

Unlike other types of merchant fees, MIFs are not set with regard to market rates. In this case, the credit card companies are accused of unlawful and anti-competitive practices. Because merchants have no choice but to pay these fees, lest they forego the ability to accept credit card payments—Visa and Mastercard appear to be taking full advantage of the leverage they maintain over merchants. Merchants and banks pass these charges on to consumers, which means everyone is adversely impacted by this type of overcharging.

The Upcoming UK Class Action

The UK class action was launched in August of last year with funding from Bench Walk Advisors. Bench Walk is taking over for Therium Capital Management, the original funder slated to finance the exceptionally large claim, valued at GBP 15 billion. Interestingly, the Competition Appeals Tribunal (CAT) scrutinized the funding agreement, and observed that there was enough funding in the agreement to cover the potential costs of the claim, even with extensive disclosure motions. Bench Walk is said to be providing up to GBP 45.1 million in funding, with an additional GBP 15 million slated for adverse costs. The CAT has found estimated costs to be roughly GBP 32.5 million for the claim, leaving plenty in the budget should disclosure motions rain down, or the claimant class experience any additional unforeseen consequences.

In August of 2021, a London court approved the class action. Claimants assert that as many as 46 million Britons may receive roughly GBP 300 each if the case is successful. As is de rigueur in funded cases, Mastercard is calling the class action “spurious” and asserting that it’s a glib and cynical ploy to make money. Ironic, no?

According to financial ombudsman Walter Merricks, these consumer-focused class actions are designed to hold big businesses responsible for misdeeds. Noted class action focused firm Harcus Parker is helming the UK case, which includes merchants and customers who used credit cards between May 1992 and June 2008.

In 2015, UK law capped MIFs at .3% on consumer credit transactions, and .2% for consumer debits. While the cap was not applicable to corporate or inter-regional transactions, Harcus Parker asserts that such MIFs should be zero. Bench Walk Advisors’ funding will help more than 100,000 companies pursue claims against Visa and Mastercard.

The Case in Canada 

Settlements with Capital One, Bank of America, National Bank, and others have been reached with merchants. Lawyers for the Canadian class action include Consumer Law Group, Branch MacMaster LLC, and Camp Fiorante Matthews Mogerman LLP.

The settlement includes a provision giving merchants the ability to make surcharges (up to a cap) for the next five years minimum. This codicil seems less consumer-focused, as the end result will be customers paying surcharges with each credit card purchase. Consumers may find this especially galling, given recent inflation and a COVID-inspired increase in credit card shopping, both in-person and online.

In Canada, Mastercard and Visa have settled with class action participants to the tune of $131 CAD. Merchants will be reimbursed for MIFs paid on credit transactions from 2001 forward. Smaller businesses (those which make under $5 million in yearly sales) may claim as much as $30 per year, up to a maximum reimbursement of $600. Both settlements have been approved by the courts.

Meanwhile, none of the banks involved have not admitted any malfeasance. The Canadian class action did not rely on traditional litigation funding. Rather, lawyers were compensated from settlement funds as approved by the courts. Does this mean that third-party legal funding isn’t necessary for a successful class action in Canada? Not necessarily. The differences between funded class actions and cases taken on contingency can vary widely depending on the case at hand.

In the United States

In September of last year, Visa and Mastercard were both ordered to face antitrust class actions over MIFs by a Brooklyn judge. The class action includes claimant merchants who accepted Mastercard or Visa between 2004 and 2019.

A settlement was reached in 2012, but was not approved by several large merchants. It was then overturned on appeal—resulting in a new settlement offer of a whopping $900 million more than the original settlement.

A representative from Mastercard, which vociferously defended against the antitrust and unlawful fees allegations, stated that the company is pleased to have reached an agreement. That’s not surprising, given how frequently the company finds itself in court on the same type of accusation. Again, a Mastercard spokesperson asserted that the class actions were brought by “US-based lawyers and litigation funders primarily focused on making money…wasting the court’s time…”

It’s noteworthy that in the US case, major retailers may see an even larger windfall. Walmart, Target, Kroger, and other large merchants have opted out of the settlement in the hopes of striking a better deal.

A court has found that the credit card companies violated antitrust laws—ordering a preliminary settlement amount of between $5.5-6.25 billion. In short, US merchants may be reimbursed for interchange fees overpaid for the past 15 years. The preliminary settlement was approved by the courts. However, the Second Circuit Court of appeals has entertained objections to the settlement approval in March of this year. It’s unclear when a decision will be reached.

Mastercard Around the World

Mastercard in particular is no stranger to lawsuits, particularly those surrounding interchange fees. Jurisdictions around the world have pursued, or attempted to pursue, class action cases against the credit giant. These include:

  • European Union: 2012—resulting in Mastercard repealing earlier pricing changes and promising greater transparency in pricing.
  • France: 2009—resulting in Mastercard committing to reduce interchange fees across the board.
  • Poland: 2007—determined Mastercard’s interchange fees to be unlawful, while the Protection of Competition and Consumers disagreed. An appeal is pending
  • Hungary: 2009—Visa and Mastercard both found to have violated competition laws and fined $3 million.
  • Italy: 2010—Mastercard fined 2.7 euros, though this was annulled the following year.
  • United States: 2012—Mastercard opted out of a settlement of $7.25 billion, reducing the settlement amount to $5.7 billion. This is still a record-setting amount of an antitrust class action.

How are Litigation Funders Helping?

As the appeals are being decided and the claims period draws near, a number of funders are offering post-settlement funding to claimants with payouts en route. This provides an avenue for struggling merchants to gain access to reimbursements without waiting. For small businesses hurt by rampant overcharging, this can be tremendously helpful.

We can see from this that Litigation Finance can do more than ensure that class actions are funded and that claimants have their day in court. The industry can also monetize payouts, offering choices not previously available to members of a class.

In short, it’s not just access to justice that the Litigation Finance industry provides, but access to much needed funds that can keep business afloat, especially during turbulent economic times.

So What’s Next?

All eyes will no doubt be watching for the outcome of the UK anti-competition case against Visa and Mastercard. The European Commission has already declared that Mastercard breached its duty when setting its fees, thus the meritorious nature of the claim should never have been in question. It is now up to a court to decide the culpability of the credit card giants, as per UK law.

One interesting final note: you might have been wondering how a financial ombudsman such as Walter Merricks can possibly discern the specific payout that each of the 46 million or so claimants deserve? Well, the answer is he likely can’t, but that won’t affect the outcome of the case. The Supreme Court has found that the impossibility of Merricks’ task does not take defendants off the hook. Instead, Merricks may seek an aggregate award with data that affirms an appropriate amount of damage, even if he cannot apply a methodology that is fair to everyone in terms of a final payout.

As opponents of the action have duly noted, the court’s ruling could potentially “open the floodgates” to a bevy of future class actions, similar in scope to what we’re witnessing here. Perhaps ironically, many in the funding community are nodding their heads, as the potential for large, US-style class actions in the UK is viewed as a positive development – greater access to justice, after all.

We will continue to bring you updates on the Merricks claim as it winds its way through the UK legal system.

Case Developments

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$170 Million Settlement Approved in Allianz Class Action

By Harry Moran |

A complex Australian class action that emerged through the consolidation of two separate group proceedings has reached a successful conclusion, with the court approving a large settlement and thereby marking a significant win for the litigation funder who backed the case. 

A post on LinkedIn from Balance Legal Capital highlighted the approval of the settlement in the Allianz class action, with the Supreme Court of Victoria approving the A$170 million sum to bring the group proceedings to a close. The class action, which Balance Legal Capital funded, was brought on behalf of over 200,000 Australian customers who purchased a vehicle and were then sold Allianz or Allianz Life “add-on” insurance products by the dealership, alleging that the insurers engaged in misleading or deceptive conduct.

Johnson Winter Slattery (JWS) and Maurice Blackburn Lawyers jointly represented the plaintiffs in the class action. In 2021, the Court had ordered the consolidation of this group proceeding with a similar class action against Allianz, resulting in two representative plaintiffs: Ms Tracy-Ann Fuller and Mr Wilkinson.

The judgment approving the proposed settlement was made today, with the court approving a $30,000 payment to the two plaintiffs. The court also maintained the Group Costs Order (GCO) of 25% of the settlement, with a $42.5 million payment set to be divided between JWS and Maurice Blackburn, with a further sum of up to $4.72 million allocated to Maurice Blackburn for the administering of the settlement distribution scheme. 

On the costs incurred by the law firms, Justice Matthews wrote that they were, “satisfied that the costs are reasonable and proportionate to the issues in dispute and the overall amount in dispute.” The judge went on to highlight that the class action “was a very large and complex proceeding and it is unsurprising that the costs are substantial.”

The full judgment and settlement approval orders can be read here. More information about the case can be found on the Allianz Class Action website.

Judge Halves Funder’s Legal Costs in Mastercard Case

By Harry Moran |

The dispute between Walter Merricks and Innsworth Capital in the Mastercard claim has been one of the most visible examples of a rift between a class representative and litigation funder. 

An article in The Law Society Gazette provides an update on the ongoing fallout from the settlement in the Mastercard litigation, as the acting president of the Competition Appeal Tribunal (CAT) has described the funder’s legal costs of over £52,000 as “wholly disproportionate and unreasonable”. These comments came in a ruling on costs that Mr Justice Roth had ordered the class representative to pay, relating to the funder’s legal costs for responding to Mr Merricks’ application for a court order (‘Documents Application) that would have prevented the funder from using confidential documents in its intervention.

In his assessment of Innsworth’s submissions on costs, the judge accepted that the funder’s need to oppose the Documents Application was “critical to its ability to participate effectively in opposing the CSAO Application” and went on to say that he had “no criticism of the time spent by the solicitors.” However, Justice Roth did highlight the decision to instruct “both leading and junior counsel to advise on the response” and the fact that in this matter, “Akin Gump is charging at well over double, and in the case of the Grade B solicitor almost three times, the London 1 Guideline Rates.”

The ruling goes on to note that whilst Innsworth “may choose to agree with its solicitors to pay a much higher rate of fees”, it does not automatically follow “that costs incurred at those rates are recoverable from the other side”. Determining the final costs, Justice Roth settled on a reduction of the solicitors’ fees down from £26,355.50 to £12,000, and similarly reduced the counsel fees to £10,000, which he still described as “generous”. As a result, the final sum for Innsworth’s costs was set at £22,000.

The full ruling from Mr Justice Roth can be read here.

$3.5M Settlement Approved in Class Action Against Melissa Caddick’s Auditors 

By Harry Moran |

A class action brought in the Federal Court of Australia has reached a resolution less than two years after it began, as a settlement has been approved between investors and the former auditors of a deceased fraudster.

Reporting by The Canberra Times covers a $3.5 million settlement in the class action brought against the auditors that were engaged by Melissa Caddick, an Australian financial adviser who defrauded investors prior to her disappearance and death in November, 2020. The settlement is the latest money recouped by Caddick’s investors, having already received $7.25 million following the sale of her assets by liquidators between 2023 and 2024. The class action targeted Caddick’s auditors on allegations that they had failed in their duties to audit their client’s self-managed superannuation funds, and had breached the Corporations Act.

The class action had been launched in September 2023 with Mackay Chapman representing 32 of Caddick’s former investors, with litigation funder Therium providing the financing for the lawsuit. Following the approval of the $3.5 million settlement by Federal court Justice Brigitte Markovic, Mackay Chapman will receive around $1 million in legal costs whilst Therium will be allocated a funding commission of $492,000. After disbursement costs, the claimants will receive the remaining $1.73 million from the settlement.

Michael Chapman, director at Mackay Chapman, described the settlement as “a great outcome for the group members”, and that his firm’s legal costs were recouped at discount to ensure that 50 per cent of the overall settlement was returned to the investors. 

The settlement agreement did not contain any admission of liability by the auditors. The full settlement approval order with additional details on the disbursement of funds can be read here.