By Vicki Needham - 11/02/12 08:45 PM EDT
"Sophisticated retailers who have scrutinized the tentative deal realize it provides relief for no one, and don’t want this blatant endorsement of the credit card industry’s abuses pushed on them or their customers.”
U.S. District Judge John Gleeson has suggested he may approve the deal. Oral arguments are scheduled for Nov. 9. The settlement was first announced in July.
"We were and still are all committed to achieving reform of an anti-competitive interchange fee system and rules in order to provide competition, transparency and fairness in the swipe fee marketplace," said Peter Larkin, NGA's chief executive and president.
NRF argued in a brief filed on Thursday that preliminary approval should be denied, saying the settlement "cannot legally be certified as a class action because it attempts to force a one-size-fits-all solution onto an wildly diverse group of merchants."
Groups like the Electronic Payments Coalition, which support the settlement, said retailers are being spurred by political ulterior motives and are trying to influence the court.
The settlement comes in well below the $30 billion per year that NRF estimates is collected from swipe fees. NRF argues that if the case went to trial, a verdict in favor of retailers could total hundreds of billions of dollars.
NRF also argued that a provision barring all retailers — including those who opt out of the settlement and even those who do not yet exist — from filing future lawsuits over swipe fees "is impermissibly broad under federal law."
Retailers argue that the structure of the settlement gives merchants who oppose it no mechanism to truly opt out.
"For NGA and the others opposing the proposed settlement it is a matter of substance, not political rhetoric, and a fight for the principles originally established when the suit was filed," Larkin said.
"The substance of the proposed settlement agreement will not provide merchants with competitive choices, fairness or transparency in the future."