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MasterCard & Visa to Merchants: Let’s Settle This the Old Fashioned Way!

Whether you are a payment instrument (think credit, debit, gift, stored value, prepaid cards and more) expert or a retail merchant, a corporate purchasing manager or, like the rest of us, a consumer, you cannot have escaped the news, announced this past Friday (Friday the 13th), that Visa and MasterCard have agreed to settle a lawsuit brought by some merchants in connection with the fees merchants pay to be permitted to "accept" credit cards. I certainly couldn’t escape it. In fact, Joe Rosenbaum (that’s me) is quoted in yesterday’s American Banker article "‘We Won’ vs. ‘You Lost’: Reactions to Credit Card Settlement" written by Maria Aspan and Victoria Finkle.

While the settlement must still be approved by the court and provides billions of dollars in payments to merchants, the most contentious piece of this settlement relates to the so-called "interchange fees" (sometimes referred to as a "discount rate" – no pun intended) that refers to the charge imposed on merchants by the credit card associations and owners for their right to accept their branded credit cards from consumers.

When a merchant accepts a credit card, that merchant must have a relationship with the "brand" on the card (e.g., American Express®, Discover®, JCB®, MasterCard®, Visa®, Diners Club®, etc.), either directly or through a member institution. Because the brand owners operate vast settlement and transaction processing networks that allow you to use your card to buy a suit in Hong Kong or King Kong at a toy store, they charge merchants an interchange fee for the privilege of riding their networks – card acceptance translates into more business, say the brand owners.

If the settlement is approved, it will see MasterCard and Visa modify their operating rules to permit merchants to charge the consumer more to pay with a card. Merchants will have the right to "surcharge" the use of a card, rather than if you use cash or another payment method.

Where will this lead – it’s complicated. Stay tuned. The National Association of Convenience Stores has announced it has already retained counsel to challenge approval of the proposed settlement. The association says the settlement doesn’t go far enough and, for example, doesn’t put a limit on how high the brand associations can raise the interchange fees charged to merchants. Whether approved or whether the law suit goes forward, or some other settlement is reached – it’s complicated.

So, if you need lawyers to help you navigate the charted and uncharted waters of the financial seas ahead, talk to us. It’s what we do. Contact me, Joseph I. ("Joe") Rosenbaum, or any of the lawyers at Rimon you routinely work with. Our FIG (Financial Industry Group) lawyers are experienced in virtually every aspect of the law or finance, financial institutions and payment systems – from privacy and GLB, to chargebacks and B2B. Call us, you’ll like us.

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Let’s be Frank! Actually, Let’s Be Dodd-Frank. Can You Hear Me Now?

Financial institutions need to worry about Dodd-Frank (the Dodd-Frank Wall Street Reform and Consumer Protection Act). After all, “Wall Street,” “Reform” and “Consumer Protection” don’t exactly conjure up images of phone, gas and electric lines being inspected and regulated by auditors wearing suits and carrying briefcases.

If you have been a loyal Legal Bytes reader, you probably know the next line:

Well guess what?

A section of the Dodd-Frank Act amended a section of the Fair Credit Reporting Act (the “FCRA”). The amendment, which becomes effective today, July 21, 2011, requires that anyone who issues a risk-based pricing notice to a consumer (a notice required when a credit report and credit score are used in connection with the extension of credit to a consumer) must now include the applicant’s credit score directly in or with the notice. So when a company sends you a notice under the FCRA in order to comply with the requirements of the Equal Credit Opportunity Act (“ECOA”), it needs to tell consumers it has used a credit report, “a record of your credit history” and “information about whether you pay your bills on time and how much you owe creditors.”

Public utilities, telecommunications companies and many others use credit scoring models, and even though these may not be based on your general credit history, the FTC is now taking the position that these companies are subject to the provisions of Dodd-Frank, and credit scores must be disclosed to the consumer.

Hey, don’t take my word for it. Read the entire Rimon Client Alert [PDF] authored by our experts: Roberta G. Torian in Philadelphia, Robert M. Jaworski in Princeton and Mark F. Oesterle in Washington, D.C. Then you will see how really complicated it is and can call them for help.

Of course, you can always contact me or the Rimon attorney with whom you regularly work, if you have any questions or require legal counsel or assistance.

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H.R. 4173 = CFPA = Amend FTC Act. Why Should You Care?

Today, the U.S. House of Representatives is scheduled to vote (and likely pass) H.R. 4173. H.R. 4173, entitled the Wall Street Reform and Consumer Protection Act of 2009, but commonly referred to as the CFPA (Consumer Financial Protection Act), has been blogged about on Legal Bytes before (see Congressional Hammer Poised to Strike at Financial Advertising). The provisions to which advertisers might wish to pay particular attention are those that would amend the Federal Trade Commission Act.

Rather than summarizing industry concerns over this legislation, I’ve posted a copy of the Industry Letter, signed and sent to members of Congress on behalf of at least these twenty two (22) U.S. associations and coalitions: American Advertising Federation, American Association of Advertising Agencies, American Escrow Association, American Financial Services Association, American Herbal Products Association, Association of National Advertisers, Consumer Data Industry Association, Consumer Electronics Association, Direct Marketing Association, Direct Selling Association, Electronic Retailing Association, Financial Services Institute, Inc., Financial Services Roundtable, Interactive Advertising Bureau, International Franchise Association, Internet Commerce Coalition, National Association of Manufacturers, National Association of Professional Background Screeners, National Business Coalition on E-Commerce and Privacy, National Retail Federation, Natural Products Association, U.S. Chamber of Commerce.

If you need more information, or if you believe you should have a voice in this process and don’t already have one, Rimon is here to help. You can contact me (Joseph I. Rosenbaum) or, of course, any Rimon attorney with whom you regularly work.

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Joe Rosenbaum – A Busy Week (Lexblog & American Banker)

Joseph I. ("Joe") Rosenbaum had a busy week. In an interview with the editors of Lexblog, Joe tells Lexblog why blogging on Legal Bytes is both fun and informative. You can read the entire interview on the Lexblog page "Real Lawyers Have Blogs".

Joe was also quoted in an article by Maria Aspan in the American Banker, about the announcement by American Express that it was acquiring Revolution Money – part of Amex’ efforts to continue to evolve and provide a broader (and increasingly relevant online and digital) range of payment options for consumers and merchants. If you are interested, feel free to read Maria’s entire story, "Amex Tries to Buy a ‘Revolution’".

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Rosenbaum Quoted in American Banker

Joseph I. (“Joe”) Rosenbaum was recently interviewed by American Banker reporter Maria Aspan in connection with advertising and marketing consumer credit cards, and certain legal implications in brand marketing and advertising, including some of the more subtle viral and social media campaigns. Joe’s quotes appear in an article by Ms. Aspan entitled, "Barclaycard U.S. Taking Baby Steps in the Public Eye".

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Congressional Hammer Poised to Strike at Financial Advertising

The late Will Rogers, that wonderful American humorist from Oklahoma, once said: "This country has come to feel the same when Congress is in session as when the baby gets hold of a hammer." Presumably, the image conjured up by that remark relates to just how much damage can be done before someone takes the hammer away! Well, in those days, Mr. Rogers lauded then-President Franklin D. Roosevelt for taking the hammer away from Congress before they did too much damage. If the strong response the newest Administration/Congressional initiative has evoked from the banking, advertising and media industries is any indication, one might conclude that President Obama has been providing too many hammers these days. This may be a little longer than my usual blog post, but read on . . . you won’t be disappointed.  

To provide a little context for the consternation, a few months ago, gift cards were inserted (for the first time) into federal legislation, ostensibly targeted at the practices of financial institutions applicable to credit cards. Where previously state legislation reigned supreme, the promotion of gift cards, disclosures regarding dormancy or inactivity fees, expiration dates, among other things, became part of U.S. federal law under the new Credit Card Act of 2009.. The legislation was intended to prevent abuses in the credit card industry and protect consumers, and in that spirit, a section covering gift cards seemed like a nice idea. But when it came to gift cards, it was unclear what problems had arisen that were not already (or couldn’t be) dealt with by state law – what was broken that needed to be fixed by federal regulators. Is concentrating regulatory power and discretionary rulemaking in the hands of federal agencies, simply for the sake of control, always a good thing?

So in case you haven’t heard, let’s talk about the newly proposed Consumer Finance Protection Agency (the “CFPA”). The CFPA is part of the Administration’s regulatory reform proposal submitted to Congress a few months ago, intended to provide a new regulatory framework for the financial services industry and, among other things, prevent practices and problems that led to the current crisis in the financial industry. Well, if you are a banker, broker-dealer, insurer or a financial officer, you probably already know the government is considering such major reforms and a restructuring of the current regulatory scheme.

BUT, have the finance folks told the marketing and advertising professionals to start worrying too? Perhaps now would be a good time to do so! In referring to the CFPA, Edward L. Yingling, President of the American Bankers Association, has said, “This agency would have broad powers that go beyond every consumer law that has ever been enacted.” You see, the newly proposed Consumer Financial Protection Agency Act of 2009, now fast-tracking its way through the U.S. House of Representatives, would restructure the Federal Trade Commission and give much of its current responsibility for regulating financial services-related advertising and marketing to a brand new regulatory agency – the newly proposed CFPA. I direct your attention to Subtitle C – Specific Authorities (Sections 131 – 139) of the Act, which would give the new CFPA the authority to review not only consumer lending practices, but also fraud and deceptive advertising, to determine and establish rules governing whether or not marketing practices and advertising are misleading, or if consumer financial products and services are being advertised and marketed fairly to consumers. By the way, the CFPA would also be empowered to interpret and enforce the new Credit Card Act of 2009 noted above. Would it surprise you that the Association of National Advertisers and the U.S. Chamber of Commerce would worry about what a new and potentially confusing and overlapping regulatory scheme, and a completely new regulatory agency, will mean for the advertising, agency and media industries?

If you thought all you had to worry about were things like privacy, behavioral advertising, free speech, blogger liability for claims, ‘Net neutrality, cloud computing, celebrity endorsements and social media – tweet, tweet – think again. Just yesterday, Advertising Age reported that some media industry professionals fear certain aspects of the new legislation will hold media liable for simply running advertisements related to financial services and products that the newly created CFPA believes are misleading. That would effectively push media into the role of de facto censors of advertising content. In other words, it would be a "safer" path (read less legal liability) to simply refuse to accept or run advertising that it determines might be too risky. One section of the proposed bill would empower the CFPA to create standards regarding what is or is not lawful in financial services advertising. Another section could be construed to extend liability to anyone in the chain of development, insertion, creation, displaying or broadcasting an unlawful advertisement. Could that be you?

Continue reading “Congressional Hammer Poised to Strike at Financial Advertising”

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Credit Card Act of 2009: Act I, Scene 1

A few months ago, Legal Bytes noted the progress of the Credit Card Act of 2009 (the “Act”), and when it was signed into law, we updated that blog post with a note about the inclusion, for the first time in federal law, of coverage of gift cards.

Today, some of the credit card protections the Act affords consumers go into effect. First, credit card bills must be mailed to the consumer at least 21 days before payment is due. Second, significant changes to the rates or fees that apply to credit cards can’t be implemented unless consumers are given at least 45 days’ notice. In both cases, this represents an elongation of the prior regulations (14 days and 15 days, respectively). 

Provisions of the Act also in effect now prohibit credit card issuers from raising their fees and interest rates without any notice if a credit card account holder fails to make a payment on time or goes over their credit limit. In most cases, such a charge would have required approval from the issuing institution anyway.

Most of the other significant provisions of the Act come into effect next February (e.g., restrictions on increases in interest rates for existing credit card balances), and by July 2010, the Federal Reserve Board is to have crafted and approved new rules covering consumer disclosures (i.e., advertising, application forms, etc.).

If you need to know more about compliance and credit cards—offline or online—contact me (Joseph I. Rosenbaum) or the Rimon attorney with whom you regularly work. We are happy to help.

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Gift Cards Tag Along with Credit Card Legislation

We previously reported its progress in Legal Bytes and last week, President Obama signed into law the Credit Card Act of 2009. Although the bulk of the Act (and the bulk of the publicity surrounding its enactment and passage) deals with credit cards, it also amends the Electronic Funds Transfer Act and implements federal regulation of general use pre-paid cards, gift certificates and store (retail) gift cards. The new law is scheduled to take effect Aug. 21, 2010, and substantively deals with dormancy fees (so-called “inactivity” or service fees) and expiration dates. 

In the area of dormancy or inactivity fees, the new law prohibits them unless there has been no activity for 12 months. In addition, in order to impose any such fees, certain disclosures must be made to the consumer prior to purchase. The new law also prohibits expiration dates of less than five years, and requires clear and conspicuous disclosure of the expiration date, if any. In addition, gift certificates issued as part of an award, loyalty or promotional program (i.e., no money or other consideration is given) are, as is the case with many state laws, excluded. And speaking of state laws, the Act specifically does not pre-empt state laws that provide greater consumer protection. 

What else should you know. First, plastic cards and payment code devices used solely for telephone services or that are reloadable, are not marketed or labeled as gift cards or certificates, not marketed to the general public, and issued in paper form only (including those that apply to tickets and events), are not covered by the requirements of the new Act.  Second, the law authorizes the Board of Governors of the Federal Reserve, in consultation with the FTC, to develop requirements concerning the amount of dormancy fees that can be charged (only once each month), and to more carefully seek to define which provisions of the Electronic Fund Transfer Act and Regulation E apply in this context. 

So, for states that have had no, or lesser, consumer protections, the Act clearly establishes a minimum federal threshold for the imposition of dormancy fees and the prohibition of expiration dates earlier than five years. For states that already have or may yet impose more stringent requirements, those requirements are specifically permitted under the Act, so you will still have to keep track of state requirements in this area. 

If you need to know, you need to contact Keri Bruce or Joseph Rosenbaum – or your favorite Rimon attorney – who will be more than happy to help you.

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Give Credit (Card), No Give a Gift (Card)! Why Not Give Both?

Although consumer credit regulation is hardly new – Regulation E, the Fair Credit Reporting Act, Regulation Z and laws regulating disclosures, debt collection practices, billing statements and the like have been around for decades – for the first time in U.S. history, Federal legislation is tackling pricing, rate modifications, advertising disclosures and fees, and adding a gift card angle as well. 

While the House has not yet passed this or any other version of the legislation, those in the know believe a similar, if not identical, bill will be approved by the House of Representatives and that the President is likely to sign it. 

Are you a bank, payment card association, credit union or financial institution that issues credit cards or gift cards? Here are highlights of the bill that passed the Senate:

  • When marketing, a card issuer would not be permitted to increase any advertised ‘teaser’ rates for at least a year after a new account was opened for the consumer, and promotional rates advertised to consumers must remain in effect for at least six month;
  • Unless the credit-issuing institution can get proof that anyone under 21 can actually repay their credit card debt, credit cards can only be issued to individuals under the age of 21 if a parent, legal guardian or guarantor agrees in writing to be responsible for the debts;
  • If a consumer pays more than the minimum balance due, the excess must be applied to the balance with the highest interest rate;
  • Card issuers will not be allowed to change rates retroactively on existing balances (there is an exception where the consumer is past due by 60 days – which, I guess, presumes that when a consumer can’t afford to pay their balance within 60 days, it’s ok to raise their rates since they probably won’t be able to afford to pay a higher rate either);
  • Bills for balances due must be sent at least three weeks (21 days) before their due date;
  • Card issuers will no longer be able to charge additional fees to consumers for alternate payment mechanisms (e.g., by mail, telephone, online, electronic, wire transfers), unless the consumer requests and the issuer offers some type of ‘expedited’ service;
  • Consumers must be asked if they want to allow ‘over-limit’ credit transactions and if they do not affirmatively consent, the card issuer will not be permitted to charge a fee if the issuer still authorizes the transaction (e.g., your credit limit is $1,000 and you charge something for $1,001 and the authorization system approves the transaction anyway);
  • Changes in the terms and conditions that apply to consumer cardholders will require at least 45 days’ notice; and
  • The minimum amount of time a gift card must remain valid for use will be 5 years. First, it is likely this will apply to gift cards that are consumer-oriented and where full value is paid, and not to discounted, bulk sales, non-consumer, incentive, employer or promotional gift cards – but then the legislation isn’t final yet, is it? Furthermore, the Federal legislation is not likely to preempt more consumer-friendly State law (e.g., California prohibits any expiration date on such gift cards), but it will place a minimum level of consumer protection against earlier expiration, even in States that have no applicable regulation.

There is also consideration being given to removing any current legal and contractual restrictions on merchants that would allow them to differentially price their products and services based on the incremental costs (or savings) of accepting different forms of payment. When credit and debit cards were scarce and cash was king (cash, as in ‘currency’), regulation and industry groups frowned upon differential pricing, arguing that allowing a merchant to charge more for the use of a credit card was discriminatory to the consumer – even though the cost of accepting such payment instruments was higher (the merchant pays a fee (discount rate) to the card-issuing enterprise for the privilege of accepting the particular brand of card). Furthermore, the growth of corporate and purchasing cards and the use of payment instruments in B2B transactions has resulted in situations where a manufacturer accepts a purchasing card (procurement-based credit card) in payment of sales to distributors, wholesalers and retailers – a fee is charged to the manufacturer for the card transaction. This chain continues until a consumer makes a retail purchase, and if any or all of these transactions involve branded payment instruments and not cash, travelers’ checks, bearer bonds or two goats and a chicken, today, a fee would most likely accrue on each payment-card transaction at each step of the way . . . significantly raising the cost to everyone and ultimately the consumer. Stay tuned.

So: Consumer Credit? Co-branded promotions? Loyalty Rewards Programs? Gift Cards? Premiums and Incentives? Retail Promotions? Payment Card Industry (PCI) Data Security Standards? Privacy & Data Protection? Identity Theft? Data Breach? Pre-Screening? Online Digital Payment Systems? Corporate Cards? Purchasing Cards? E-Commerce? Regulation E? Regulation Z? Statement Insert Advertising; Credit/Demographic Market Segmentation? Free? APR? Limited Time Offer?

Any of these sound familiar? It’s what we do? Our Advertising Technology & Media Law Group; our Financial Institutions Group; our Data Security and Identity Theft Group . . . need we say more . . . If you need help (or you are just over stimulated by the flurry of legislation, regulation and excitement), call us or email me at joseph.rosenbaum@rimonlaw.com. We can help.

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Who Pays For the Data Security Breach?

Have you received one of those “data security breach” letters? Quick, call the credit bureau and bank. Change the checking, credit card and license numbers. Most financial institutions have absorbed the cost of reissuing payment cards or providing new checks, even when these financial institutions had nothing to do with the security breach. When B.J.’s Wholesale Club disclosed that a theft of credit card information had occurred, two financial institutions sued to recover the costs that resulted from that breach. The institutions claimed B.J.’s breached its legal obligation to maintain the security of the financial institution and should be liable for the damages. Those claims were initially rejected, but have now been revived by the U.S. Court of Appeals for the Third Circuit, which has issued a decision holding these financial institutions were intended third-party beneficiaries of the contract among the retailer, its merchant bank, and the payment card industry, to keep customer data safe. If the retailer breached data protection rules imposed by the payment card industry and the financial institutions were third-party beneficiaries of that  agreement, then any damage and loss could be recovered based on contract law claims. Stay tuned.