While you are likely familiar with NACS’ legislative efforts in Washington, you may be less aware that NACS often takes on a role in litigation to advance the interests of its members. Here is a recap of litigation NACS is involved with on the industry’s behalf as of February 2020:
In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, U.S. District Court for the Eastern District of New York
Background: NACS helped initiate class action litigation against Visa, MasterCard and the 25 largest card-issuing banks to challenge the ways that interchange fees and card network rules are set.
Current status: A monetary settlement for the class has received approval from the U.S. District Court, and appeals challenging it have been filed. The class case against the defendants for injunctive relief (rules changes) is still being litigated. NACS opted out of a settlement reached in 2012 and joined a group filing its own opt-out suit. That opt-out suit, along with the class case for injunctive relief, is undergoing the expert discovery process.
NACS role: Plaintiff suing Visa, MasterCard and other defendants
U.S. v. Philip Morris, U.S. District Court for the District of Columbia
Background: The U.S. Department of Justice sued cigarette manufacturers in 1998 for a series of claims related to the negative health effects of smoking, including that the manufacturers misled the public about the health effects of smoking. In 2007, the Court ruled against the manufacturers and ordered them to make restitution in a variety of ways, including by requiring manufacturers to tell the public they misled them. One part of that order provided for manufacturers to require signage at retail points of sale carrying those corrective messages. NACS filed an amicus brief on appeal to the D.C. Circuit Court of Appeals objecting to the point of sale sign requirement and won. (An amicus brief is a legal document filed in appellate court cases by non-litigants with a strong interest in the subject matter.) NACS has participated in two additional rounds of briefing on that issue in the U.S. District Court.
Current status: The Department of Justice has modified its request to be in-store signage (rather than point of sale), and the District Court has requested an evidentiary hearing on that question. NACS is participating as an amicus. The Court has asked the parties for a timeline for holding the hearing in 2020.
NACS role: Amicus opposing the Department of Justice’s request for an order for in-store signage
Pulse v. Visa, U.S. Circuit Court of Appeals for the 5th Circuit
Background: Pulse sued Visa for violating the antitrust laws in connection with blocking smaller debit networks like Pulse from competing for debit transaction volume. The District Court ruled in favor of Visa, and Pulse appealed the case to the 5th Circuit. NACS, along with other merchant trade associations, filed an amicus brief on appeal supporting Pulse.
Current status: The case was argued in October 2019 and is awaiting a decision.
NACS role: Amicus supporting Pulse
New Hampshire Lottery Commission v. Barr, U.S. Circuit Court of Appeals for the 1st Circuit
Background: The New Hampshire Lottery and NeoPollard Interactive sued the U.S. Department of Justice for reversing its 2011 decision that opened the door to internet lotteries and returning to the traditional rule that internet lotteries violate the Wire Act.
Current status: New Hampshire and NeoPollard were successful in the District Court, which concluded the Wire Act does not cover online lotteries. The Department of Justice appealed. NACS and the Coalition to Stop Internet Gambling filed an amicus brief in support of the Department. Briefs were filed in December 2019.
NACS role: Amicus supporting the Department of Justice
Other recent cases NACS has been involved with but have concluded:
- Valero v. EPA (2019): NACS filed an amicus brief opposing Valero’s attempt to change the point of obligation for ensuring a certain volume of renewable fuel is put into the motor fuels mix each year. NACS was successful. NACS may need to participate in an appeal of this decision.
- FMI v. Argus Leader Media (2019): NACS filed an amicus brief in the U.S. Supreme Court opposing the effort of the Argus Leader newspaper to get store-level SNAP redemption data throughout the United States. NACS was successful.
- NACS v. New York City Dept. of Health and Mental Hygiene (2017): NACS filed suit to stop New York from implementing menu labeling regulations before the FDA regulations went into effect. NACS was successful in delaying New York’s implementation of the law.
Please continue to watch this space as well as the various other NACS outlets. You can receive updates by signing up for the NACS Daily e-newsletter at www.convenience.org/nacsdaily, and be sure to check www.convenience.org for timely updates on any developments in these cases or future cases.