2. If Settled Prior to Certification the 23(b)(3) Cash Settlement Will Likely Stay Roughly the Same
A future 23(b)(3) standalone settlement is easy to imagine and would not be too complex to construct. Such an agreement would wipe out Defendants’ exposure to possibly trebled damages based on the underlying causes of action from the start date of 2004 though whenever a settlement is reached. . Interestingly, once the Second Circuit vacated the settlement, Visa and MasterCard could have recovered the $5.4 billion that was placed into escrow back in 2012. . They have not done so, however, and neither the Plaintiffs nor Defendants have petitioned the Court to formally terminate the settlement agreement. . This could provide the platform for an amended settlement agreement. . In …show more content…
Damages are increased to accommodate the extended class period and additional alleged misconduct, or it will stay put (possibly with accrued interest).
3. The recovery is reduced as part of a 23(b)(3) only settlement since the Defendants will not be getting the relief they really care about related to the interchange fee and associated rules. .
The strongest argument in favor of increasing merchants’ cash compensation is that by the time of a new settlement, the damages and class period will be nearly double the length of the previous settlement class period. . Additionally, transaction volume has been growing steadily since the 2012 settlement, which combined with the added years would add up to greatly increased damages to the Plaintiffs.
But now that the Rule 23(b)(2) class have their own, independent counsel, it is unclear whether the credit card companies are likely to receive less forward-looking relief from any new deal. . Visa and MasterCard may resist calls for additional cash depending on the additional litigation risk (Amex, Class Certification, Summary Judgment) and the prospect that they must provide additional rules changes. . More money is, we think, far from given.
A future 23(b)(3) standalone settlement is easy to imagine and would not be too complex to construct. Such an agreement would wipe out Defendants’ exposure to possibly trebled damages based on the underlying causes of action from the start date of 2004 though whenever a settlement is reached. . Interestingly, once the Second Circuit vacated the settlement, Visa and MasterCard could have recovered the $5.4 billion that was placed into escrow back in 2012. . They have not done so, however, and neither the Plaintiffs nor Defendants have petitioned the Court to formally terminate the settlement agreement. . This could provide the platform for an amended settlement agreement. . In …show more content…
Damages are increased to accommodate the extended class period and additional alleged misconduct, or it will stay put (possibly with accrued interest).
3. The recovery is reduced as part of a 23(b)(3) only settlement since the Defendants will not be getting the relief they really care about related to the interchange fee and associated rules. .
The strongest argument in favor of increasing merchants’ cash compensation is that by the time of a new settlement, the damages and class period will be nearly double the length of the previous settlement class period. . Additionally, transaction volume has been growing steadily since the 2012 settlement, which combined with the added years would add up to greatly increased damages to the Plaintiffs.
But now that the Rule 23(b)(2) class have their own, independent counsel, it is unclear whether the credit card companies are likely to receive less forward-looking relief from any new deal. . Visa and MasterCard may resist calls for additional cash depending on the additional litigation risk (Amex, Class Certification, Summary Judgment) and the prospect that they must provide additional rules changes. . More money is, we think, far from given.