Posts tagged ‘Antitrust’

How Square’s Purchase of Afterpay May Impact Your CU

The announcement that Square will purchase Afterpay for a mere $29 B is more than just another business story. Look under the hood and the transaction shows: how the payment space is fundamentally changing; the way transactions are executed; raises questions about the continued utility of the existing regulatory framework; and demonstrates yet again that financial institutions, which do nothing more than hold money and keep consumer’s income safe, are becoming increasingly minor cogs in consumer financial transactions.

First, what is Afterpay and what does it do? As I explained in this blog, Afterpay is an online payment platform started in Australia less than a decade ago which specializes in facilitating buy-now, pay-later transactions. Merchants agree to pay a fee to facilitate in-store purchases; consumers agree to repay the purchase with a limited number of payments; and Afterpay agrees to purchase the sales installment contract.

What’s so clever about this arrangement? Merchants get their money free and clear even if the fee they pay seems an awful lot like an interchange fee. What’s in it for the consumer? Apparently, Millennials really do hate debt. Good for them. The installment plans give them reasonable payment flexibility without using a credit card. Afterpay avoids the federal disclosure requirements mandated by the Truth In Lending Act (TILA) by limiting payment to four installments. A fifth installment would trigger TILA. The model also gives Afterpay a huge volume of retail installment contracts to buy and sell. You can easily imagine these things packaged into securities.

Square is a more traditional peer-to-peer payment platform started way back in the teens of this century. It specializes in giving merchants easy access to payment platforms and of course, getting a piece of each transaction.

The amazing thing about all these developments is how little these entities are regulated. Afterpay did enter into a consent decree with California in which it agreed to comply with state level license requirements for retail lending. But one states licensing requirements do not level the playing field.

One more thought.  Recently the Biden Administration announced it was going to take a more aggressive view of mergers under our antitrust laws. In reviewing this proposed purchase, I’m assuming the Justice Department will be asking itself whether the real purpose of this transaction by Square is to buy up a potential competitor in a payment space it ultimately hopes to monopolize, as opposed to helping consumers by bringing resources to a company whose unique payment model expands choices for consumers.  Call me cynical, but I have my doubts.

August 3, 2021 at 10:34 am Leave a comment

Anti-Trust Settlement Thrown Out


For those of us in the financial industry, three things are certain: Death, taxes and merchant antitrust litigation.

Yesterday, the Court of Appeals for the Second Circuit threw out  the $7.5 billion 2012 settlement between merchants and Visa and MasterCard intended to put an end to a decade of antitrust litigation and brihttps://fred.stlouisfed.orgng about peace in our time.  Considering how long it dragged on and that the settlement was the largest antitrust payout in history, perhaps it is only fitting that the decision came down the day before the 100th Anniversary of the Battle of the Somme, the bloodiest battle in World War I that resulted in over a million deaths and casualties.

What happens now? The case goes back to the trial court and merchants are likely to push for even more money and a narrower ban on future litigation.  The National Association of Convenience Stores  cheered the court’s decision to scuttle the settlement because “the relief it offered was inadequate and the release [from future litigation] was overbroad.”  The National Retail Federation predicted that the Card firms could face even more pressure from retailers to change their fee structures.

Among the defects cited by the court was that there were too many competing merchant interests represented by the same attorneys. The court explained that “Unitary representation of separate classes that claim distinct, competing, and conflicting relief create unacceptable incentives for counsel to trade benefits to one class for benefits to the other in order somehow to reach a settlement.”  The court was also concerned that the settlement barred all future claims against Visa and MasterCard but only placed temporary restrictions on the card companies.

The merchants were divided into two classes: one class consisting of merchants that accepted Visa and/or MasterCard from January 1, 2004 to November 28, 2012, which was eligible to receive part of the $7.25 billion; the other consisting of merchants who joined the networks after that late, who were only entitled to injunctive relief in the form of changes to Visa’s and MasterCard’s network rules. For example, Visa and MasterCard agreed to change their network rule to allow merchants to surcharge credit card purchases.  But the court noted that in States such as New York surcharge bans are still illegal under state law.

Brexit Fallout



This chart highlights what’s happened to the yield on 10-year Treasuries in the aftermath of the decision of Great Britain to leave the Eurozone.(Tap it for a better view).  Needless to say, with yields tumbling, it’s hard to see why the Feds would want to raise interest rates any time soon.

On the bright side, this continues to be the Golden Age to buy a home, assuming you can qualify for a mortgage.

By the way, I made this chart after visiting the Fred Website, a phenomenal resource of which all you number junkies out there should be aware.  On that note, have a nice Fourth!

July 1, 2016 at 9:02 am Leave a comment

Authored By:

Henry Meier, Esq., Senior Vice President, General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association. In addition, although Henry strives to give his readers useful and accurate information on a broad range of subjects, many of which involve legal disputes, his views are not a substitute for legal advise from retained counsel.

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