Tag Archives: department of justice

Visa Investigation Update

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On May 2 it was revealed by Visa CEO Joe Saunders that the credit card giant was being investigated by the Department of Justice for violation of antitrust laws. One of the key elements of the DoJ’s interest in Visa for antitrust violations is its new fee, the Fixed Acquirer Network Fee (FANF) which went into effect on April 1, 2012. Saunders stated that the investigation began on March 13, prior to the fees taking effect.

Saunders revealed that Visa was being investigated during Visa Inc.’s Fiscal Q2 2012 Earnings Conference Call, which prompted The Official Merchant Services Blog to take its readers through the strange roller coaster ride that was Visa’s beginning of May in THIS BLOG HERE.

The strength of Visa’s earnings in the last quarter was framed immediately by Saunders in the conference call: Credit. As Saunders says, “In the U.S., payment volumes increased 6% for all products. Our star performer for fiscal second quarter was credit. Building on that, we continue to invest in new and expanded long-term credit relationships with our largest U.S. clients to drive growth in our core business.”

The other side of that statement, however, is debit. Where MasterCard took great strides — notably adding the nation’s largest debit card institution Bank of America, which switched from Visa.

Visa claims it was hampered by the Durbin Amendment in terms of making earnings from debit in the last quarter.  As Saunders said in the conference call, “So far, the situation is playing out as we expected, and in line with our updated guidance for fiscal 2012 as well as our guidance for fiscal 2013. During the March quarter, U.S. aggregate debit payment volumes slowed to 2% growth and, as expected, has continued to decline in April. Interlink is bearing the brunt of the regulatory impact.”

Saunders then took a moment to emphasize the individual differences between Visa Debit — the well known Visa check cards that get swiped through terminals around the country — and Interlink, Visa’s PIN-debit product. Saunders noted that Visa’s swipe debit grew, but grew very slowly. And then went into detail about how Interlink was the company’s worst performer in the quarter, “We posted negative payment volume growth in each month of the March quarter. More recently, between the compliance deadline of April 1 and April 28, Interlink payment volume has experienced notable deterioration. Keep in mind, though, that in the March quarter, Interlink contributed less than 10% of U.S. debit revenue and about 2% of Visa Inc.’s overall revenue and was our lowest yielding product in the U.S. market. “

At this point in the call Saunders shifted into a very general discussion of Visa’s “strategies to compete” — essentially their new fees, including FANF, the Transaction Integrity Fee and a revised Network Acquirer Processing Fee. That led Saunders to discuss the Department of Justice investigation: “On March 13, prior to the April 1 implementation date, the U.S. Department of Justice Antitrust Division issued a civil investigative demand requesting additional information about PIN-authenticated Visa Debit and elements of our new debit strategies, including the fixed acquirer fee. In March, we met with the department twice and provided materials in response to the CID. We are confident our actions are appropriate and that our response to the DOJ supports that.”

More Commentary from Visa

During the question and answer period of the conference call, Saunders stepped up to defend Visa’s new fees. Saunders says that the fees are part of “the total structure we’ve put to deal with the Durbin regulation. We are not making money per se off of that fee. The combination of discounts and incentives that we have put together, I think, actually relate in a modest loss in the amount of $100 million a year. So we aren’t doing this with the intent of raising prices.”

Then another question comes up in the call asking about the outlook the company has for recovering from the losses in Debit due to Durbin. Saunders very vocally defends the company’s fees and strategies: “Let me just follow up on that and make perfectly clear one thing, and that is that we are never going to regain all of the market share that we had in the debit card business. Nothing that we say or none of our strategies suggest that that will happen or could happen. And nothing that we have done or thought about or said anticipates that it will happen. The environment has changed by regulation. We are operating in a different world, and we are going to live forever with less share than we once had.”

The TLDR Version from Visa

So essentially Visa’s CEO has revealed the company is being investigated by the DoJ for antitrust violations because its new fees could circumvent the point of the Durbin Amendment’s reform. But Saunders states the company is cooperating with the government probe, and stoutly defends the fees as not circumventing Durbin. Saunders says the fees don’t recoup the losses that the company will incur from the hard cap, and that the company is still taking a downturn in the debit sector even with the fees in effect. He admits that these fees are part of their strategy to deal with the legislation but feels that the company isn’t violating antitrust laws.

The transcript of the entire conference call can be read HERE at Seeking Alpha. Many thanks to them for providing it for use to bloggers and media outlets.

Florida Adds New Twist in Durbin Drama [2023 Update]

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The Official Merchant Services Blog has learned of the latest twist in the ongoing saga about the Durbin Amendment. The legislation, which was tacked onto the Dodd-Frank Wall Street Reform and Consumer Protection Act, caps the fees banks can charge for the use of debit cards. It went into effect on October 1, 2011. Host Merchant Services provided an extensive analysis of the legislation months ago, and The Official Merchant Services Blog ran a series leading up to October 1st titled Countdown to Durbin.

Since then the frenzy over the legislation has sky rocketed. The Occupy Wall Street movement embraced Bank of America as a target for its protests. Congressmen have suggested a Department of Justice investigation into big banks for antitrust violations. And lawmakers have even suggested repealing the amendment and going back to square one.

But Florida state Lawmakers have, by far, come up with the boldest response — a bill that would prohibit banks, including Bank of America, from charging customers fees to use debit cards.

A Miami Herald article had this to say: “A House Democrat disgusted by big banks and their new monthly fees for using debit cards proposed on Monday to make those charges illegal for Florida customers.

It may be a dream for angry consumers, but it begs a few questions. The biggest being, can it even happen?

Lake Worth Rep. Jeff Clemens says yes. His bill would prevent banks from imposing a dormancy fee or service fee on customers using debit cards.”

This is a fascinating suggestion on how to deal with the issue. Banks have been putting forth the idea that these fees are their way of dealing with the huge losses the debit fee cap would bring them. Going from 44 cents a transaction to 24 cents a transaction was going to bring about an overall dearth of billions of dollars for the industry. And banks were very up front about how they would deal with this restriction: They would shift it from the merchants who were having to pay these fees for each swipe, to the consumers — their customers — with new fees for debit card use.

The backlash for these consumer targeted fees has been extremely negative, with Bank of America getting much of the spotlight due to their $5 per month fee that they say will take effect in January 2012.

Key Points about the Durbin Amendment

So one Florida lawmaker has decided to head that off at the pass, and restrict banks’ ability to do that at all, at least in the state of Florida. Whether this happens or not, this move does at least demonstrate a few key things about the Durbin Amendment:

  • It’s very design left a loophole for banks to shift the fees. Which means its ability to reform what it wanted to reform was hampered at the very stage of its inception.
  • Florida Lawmakers might only be closing one of the holes in the law if they implement this, and not even very effectively, but they at least set an example as to how lawmakers should have approached the idea of reform in the first place.
  • Instead of repealing the amendment, or investigating banks with the Department of Justice, the Florida Lawmakers knee-jerk reactionary bill at least tries to work with the bill.

The ability of the law to actually work is somewhat in doubt. Clemens cited in the article: “the 2009 U.S. Supreme Court case Cuomo vs. Clearing House Association, in which the court decided federal law did not preempt states from enforcing their own laws in cases against national banks.”

But Anthony DiMarco, a spokesperson for the Florida Bankers Association responded in the article with: “the state cannot impose the law because of the country’s longstanding dual banking system. State banks comply with state law and a few national regulations, he said, and national banks answer mostly to federal regulators like the FDIC. Big banks are allowed to charge fees under federal law.”

In the end, though, all this bill would end up doing is force banks, in Florida at least, to simply shift to another tactic. As the article states: “Trish Wexler, Electronic Payments Coalition spokeswoman [said that if] Clemens’ idea is law, “consumers are either going to lose their debit cards or they’re going to pay another way.“

So essentially this story makes for an engaging mental exercise in the legislative process and a very fascinating turn in the Durbin Amendment’s aftermath. The bill still has to pass for the legality of it to become an issue. Then the legality of it has to be addressed. Then the banks’ response has to happen. But it’s nice to see a fresh take on how to deal with financial reform get offered up. Maybe it’ll get the federal government off the track of a Justice Department investigation and on the track of reforming their own reforms?