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Junk fee litigation has, until recently, been largely a consumer-facing story: diners, online shoppers, and eventgoers challenging the “service,” “processing,” and “convenience” fees that appear at checkout. A new proposed class action filed in North Carolina turns that narrative around. Specifically, a proposed class of North Carolina businesses recently filed a complaint alleging that their payment processors systematically charged them “junk fees” totaling almost $100 every month.

Merchants have been suing their processors and acquirers over undisclosed or misdescribed fees for decades, typically through breach of contract and unfair trade practices claims. What is new here is the “junk fee” label itself, borrowed from the consumer pricing-transparency movement, and the question it raises: Can the wave of state “total price” and junk fee statutes built for consumer transactions give merchants an additional, and potentially more powerful, tool to challenge the fees their own processors charge them?

Continue Reading Merchants Take the “Junk Fee” Fight to Their Payment Processors

From one-click checkouts to autofilled payment fields, the modern payment experience is built on convenience. Consumers have come to expect that apps, websites, and even their mobile devices will seamlessly store and deploy their payment credentials with minimal friction. But beneath this ease lies a growing legal tension, particularly in subscriptions and automatic renewals programs, where sales and marketing laws require clear disclosures before obtaining the consumer’s billing information.

ROSCA Compliance and Subscription Disclosure Timing

The Federal Trade Commission’s (FTC) lawsuit against Uber Technologies illustrates how this tension plays out in practice. The case focuses on Uber’s “Uber One” subscription program and how subscription enrollment is embedded within an app ecosystem where users have already stored payment credentials for one-off transactions. Under the Restore Online Shoppers’ Confidence Act (ROSCA), material subscription terms must be disclosed before obtaining consumers’ billing information.

Continue Reading Stored Payment Credentials and ROSCA: Lessons from the FTC’s Uber Case

The Federal Trade Commission (FTC) recently announced a settlement with a group of related companies and two of their officers that used a merchant of record (MoR) model to facilitate sales for merchants. According to the FTC, the MoR businesses violated the law by assisting and facilitating fraudulent telemarketing sales of tech support services and laundering credit card charges through the defendants’ own merchant processing accounts.

The MoR model is one of several novel models payments companies and platforms have launched in the marketplace. While numerous compliance questions related to money transmission and unlawful payments aggregation abound, this particular FTC case warns that consumer protection agencies are taking a closer look at risks presented by the MoR model.

Continue Reading Increasing Regulatory Scrutiny for the Merchant of Record Model

By Petr Kratochvil [CC0], via Wikimedia Commons
What if your chargebacks increased by 40%, practically overnight?  This is one estimate by payments industry experts of the potential impact on card-not-present (CNP) merchants that could result from the October 2015 shift to EMV chip technology in the U.S. market.  Payments companies are worried that many CNP merchants, including Internet retailers, aren’t prepared to absorb the onslaught of new fraud that will move to the CNP environment when fraudsters are shut out of card present retail.  The payments industry expects a direct correlation between the increase in fraud resulting from the EMV shift and an increase in chargebacks.

EMV is a security standard designed to protect in-store card swipes from card replication and counterfeit by use of a chip embedded in the card and in card acceptance terminals.  EMV, which stands for its three original creators (EuroPay, MasterCard, and Visa), is now run by a joint consortium of the major card networks.  The U.S. market is the last major market to deploy EMV.  When the U.K. market adopted EMV chip technology several years ago, analysts calculated that fraud in the card present retail environment dropped by almost half while fraud in the CNP environment doubled.  It is that lesson that has many in the U.S. worried, notwithstanding advancements in card authentication and other fraud detection tools in the CNP environment developed since then. 
Continue Reading Payment Processing Alert for Internet Retailers: The October 2015 EMV Shift Will Complicate Your Chargeback Management Efforts