Credit card networks, simply put, move money throughout the world. When an individual makes a purchase via credit card, these networks quickly check and authorize or deny the transaction. These nearly-instantaneous purchases shape the way the modern economy works, made all the more important as approximately 30% of people do not carry cash, according to a 2019 Pew study.
In the United States, there are four major credit card networks that operate worldwide: Mastercard, Visa, American Express and Discover. While Visa and Mastercard partner with banks to issue cards, American Express and Discover issue their own cards in addition to processing transactions.
Given their central role in the global financial system, the four American credit card companies face litigation, from antitrust to patent to consumer credit-related cases. Because AmEx and Discover also issue cards, rather than partner with banks, they see even more courtroom challenges.
The following is an analysis of credit card network litigation in U.S. district courts from January 1, 2020 to March 1, 2022.
Mastercard
Credit card network company Mastercard Inc. has been involved in 28 lawsuits during the past two years. It is the defendant in 96% of these lawsuits. The majority of the lawsuits occurred in New York; 14 in the Eastern District, and eight in the Southern District (the two judicial districts that bisect New York City). The Northern District of California and the District of Columbia each have three lawsuits.
Over half of these cases are antitrust matters. The other top Nature of Suit case types are property damage, civil rights – jobs, statutory actions – other and contract-related filings.
In addition to antitrust litigation, other lawsuits against Mastercard claim that it sold and monetized consumers’ personal identifying transactional data without consumers’ consent.
Mastercard is represented by a variety of law firms. Paul, Weiss, Rifkind, Wharton & Garrison and Wilson Sonsini Goodrich & Rosati represented the company the most, while Dorsey & Whitney, Sidley Austin and Jackson Lewis appeared for them as well in recent years.
Specifically, Paul Weiss is predominantly representing the company on antitrust matters, Dorsey & Whitney is representing Mastercard for contract case types, Jackson Lewis is representing for civil rights jobs and other labor-related litigation, Wilson Sonsini and Sidley Austin are representing for property damage lawsuits.
Visa
Credit card network company Visa has been involved in 34 lawsuits over the past two years, for which it is the defendant 86% of the time. The majority of Visa’s lawsuits (73%) have been for antitrust, followed by patent, contract, statutory actions and civil rights – jobs. Furthermore, the majority of lawsuits were either in the Eastern District of New York or the Northern District of California.
Visa has faced antitrust claims, as well as patent infringement lawsuits filed by Auth Token and AuthWallet. Visa was also sued for its foreign transaction fees.
Visa is represented by Arnold & Porter in 2020 and 2021, who primarily represented Visa for antitrust matters. Skadden, Arps, Slate, Meagher & Flom; Burke Williams & Sorenson; Irwin IP and Holwell Shuster & Goldberg also appeared for the company. Fish & Richardson; Littler Mendelson; and Weil, Gotshal & Manges have also represented the company.
American Express
American Express has been involved in the greatest number of lawsuits of the four credit card networks. It has been involved in 137 lawsuits in recent years and is the defendant in 98% of the cases.
Almost three-quarters of the lawsuits relate to consumer credit. Because the company issues its cards itself, it is subject to these suits while Mastercard and Visa are not. Other case types include patent, statutory actions, contract and civil rights, among others. In comparison to Mastercard and Visa, it faced a small number of antitrust lawsuits – just two, or 1.5% of its federal litigation.
American Express faces an ongoing antitrust multidistrict litigation relating to its anti-steering rules. In November 2021, American Express won against the litigating merchants, those who do not accept AmEx. The merchants alleged AmEx’s payment “anti-steering” rules caused other credit cards to increase their rates, which led to inflated fees the merchants had to pay the other credit card networks.
American Express’s lawsuits were most frequently filed in the Southern District of New York and the Southern District of Florida.
American Express has predominantly been represented by Stroock & Stroock & Lavan, which is the only law firm thus far to represent the company consistently in recent years. Shook, Hardy & Baco also represents American Express in a variety of matters, while a variety of other firms have represented the company in the last two years for a smaller number of cases. Cravath, Swaine & Moore represented the company in an antitrust claim filed in 2020.
Discover
Discover is both a credit card network and a card issuer. It has been involved in 96 lawsuits in the last two years and is the defendant in 96% of them. Like American Express, the majority of the lawsuits (~78%) were related to consumer credit, often under the Fair Credit Reporting Act or the Fair Debt Collection Act.
Other case types were statutory actions, foreclosure, contract, civil rights, fraud, patent and truth in lending, among others. The top courts for Discover are the Northern District of Illinois and the Southern District of New York.
Holland & Knight and Stroock & Stroock & Lavan have the lion’s share of Discover litigation in recent years. Pilgrim Christakis and Burr & Forman increased representation from 2020 to 2021, while Ballard Spahr and Greenberg Traurig’s representation decreased from 2020 to 2021. Reed Smith and Fish & Richardson only represented Discover in 2020 and 2021, respectively.
Antitrust Litigation
A major antitrust case against Mastercard and Visa was filed in 2005. Plaintiffs include Intuit, Dell, Exxon Mobil, Avon, and many others. These lawsuits concern payment card interchange fees and merchant discounts. For example, in Exxon Mobil’s 2020 complaint, the company claimed that Visa and Mastercard “have conspired, combined, and made agreements to restrain trade.” Exxon Mobil asserted that Visa, Mastercard “manage, coordinate and govern a combination” with their partnering banks “in restraint of trade” in violation of the Sherman Act. Specifically, the partnering banks issue Visa or Mastercard-branded credit and debit cards and despite the banks being independently owned and operated, and they “have agreed to abide by the rules of Visa and MasterCard” that forbid the Banks’ competing for merchant acceptance of the credit and debit cards they issue.”
Other claims explain that Visa and Mastercard impose interchange fees on merchants for accepting the credit or debit card as a form of payment, which are paid directly to banks. The banks purportedly compete with one another to issue cards to consumers, however, banks do not compete “for preferential acceptance by merchants at the point of sale,” which would have allegedly lowered prices. Furthermore, the rules imposed by Visa and Mastercard purportedly restrain competition because they “eliminate competition among the member issuing banks for merchant acceptance of credit and debit cards,” which has allegedly caused merchants to pay higher interchange and network fees.
Credit card networks have faced a relatively small number of lawsuits in the last two years, especially in comparison to their massive importance to the global financial system. American Express and Discover faced more litigation than Mastercard and Visa, which could be attributed to AmEx and Discover also being credit card providers in addition to credit card networks; the number of consumer credit lawsuits they faced is also reflective of this. Meanwhile, the majority of Mastercard and Visa’s lawsuits are antitrust, particularly one large multidistrict litigation, emphasizing the market hold these networks have.