A recent Law 360 story by Andrew Strickler, “Swipe Fee Counsel Seek $604M in Fees, Final Settlement OK,” reports that a class of merchants that sued Visa, Mastercard and a group of banks over card swipe fees has asked a Brooklyn federal judge to put her stamp of approval on a "historic" multibillion-dollar settlement and to approve a $604 million fee award.  In a motion seeking a final OK of a deal tentatively approved early this year, class counsel said the antitrust class action agreement in the swipe fee dispute is likely the largest in history.  The $6.3 billion settlement was also reached despite intervening changes in the law and market that threatened to upend the case at various points in its long history, class counsel said.

And absent settlement, merchants would still faced "a series of significant hurdles" to obtaining any compensation.  Ongoing litigation "entailed a certainty of additional delay for millions of merchants that have already waited 14 years to be compensated for the conduct challenged in this litigation," according to the motion.  "This settlement obviates the risk of no recovery by merchants or recovery in the distant future."

The multidistrict litigation sprang from allegations that Visa, Mastercard and banks including Barclays and JPMorgan Chase maintained a series of card network rules that allowed companies to overcharge merchants on transaction fees.  Co-lead plaintiffs' counsels also petitioned the Brooklyn federal court for fees totaling 9.56% of the fund, or just north of $604 million.  They also ask for an additional $38.2 million in expense reimbursements.

In their motion, Robins Kaplan LLP, Berger Montague PC and Robbins Geller Rudman & Dowd LLP put their "conservative calculations" on time expended on the case at 630,000 hours of attorney and paralegal output through the end of January.  The request, representing a lodestar multiplier of 2.96, is "reasonable and well within the range of multipliers approved by courts in megafund cases," according to the motion.  "A simple investment of hours would not have sufficed to achieve what this litigation has accomplished, as the task at hand — addressing myriad novel substantive, procedural and expert issues — required the highest quality work," the fee petition says.  "The settlement reflects the quality of that work."

The sides first settled the case in 2012 for $7.25 billion.  But the Second Circuit overturned the deal in 2016, finding that merchants that would accept the cards after the settlement date were not adequately represented.  The defendant companies agreed to a new deal in September on behalf of a "unitary class," with the right for all class members to opt out.  The agreement also allowed for lower payouts if certain numbers of class claimants do not participate.

With about $5.4 billion already in escrow, that deal also included defendants putting in up to $900 million more.  Visa was on the hook for $600 million of the additional funds, with Mastercard shouldering $108 million and the banks responsible for the balance.  U.S. District Judge Margo Brodie granted preliminary approval of the settlement in January.  The settlement fund currently stands at $6.32 billion.

Separately, Gary Friedman of Friedman Law Group LLP asked the court to compel class counsel to stick to the terms of a 2005 agreement he signed with other plaintiffs' counsel to handle some legal issues in the case before they "disavowed their obligations" and refused to include him in the fee petition.  That decision and direction from the com-class leaders in May for him to file a separate fee petition "clearly relates" to his communications with former MasterCard outside counsel Keila Ravelo, Friedman said.