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What's Going on With All These Chip and PIN Lawsuits?

Posted by Kaleigh Simmons on Jun 28, 2016 8:30:03 PM
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Yesterday, news broke that supermarket chain Kroger had filed a lawsuit against Visa due to disagreements over chip and PIN transactions. If this is starting to feel like an echo chamber, it’s because Kroger is far from being the first merchant to sue a card network over the EMV conversion. In March, a small grocery chain and liquor store in Florida filed an antitrust lawsuit against all four card networks and a dozen banks. This was followed by Wal-Mart filing a lawsuit against Visa in May, and Home Depot filing one of their own against Visa and MasterCard in mid-June. What’s the issue behind all of this litigation? Follow along as we break each one down.

The One That Started it All

While everyone knows how difficult it’s been for smaller retailers to support the EMV transition, their cry was definitely heard loud and clear when a small grocery chain in Florida paired up with a liquor store to file an antitrust lawsuit in March. The lawsuit alleges that the transition has been littered with technical difficulties and has largely been used as a cover to illegally shift fraud-related costs.

Specifically, the lawsuit cited the backup in getting the chip-enabled POS terminals and other systems certified, which left merchants helpless against a wave of chargebacks that they found themselves suddenly responsible for “overnight.”

The small grocery chain saw chargebacks increase from $89 in the year preceding the October deadline to over $10,000 in the months since the switchover.

One of the lawyers on the case, Patrick Coughlin, said that small business owners weren’t unique in their struggles and predicted exactly what would happen next..

Larger merchants entering the fold.

The First Major Retailer to Take Action

On May 10th, news broke that Wal-Mart filed its own lawsuit against Visa, alleging that Visa wouldn’t allow Wal-Mart to force customers to use PIN for chip-based debit transactions, and instead required them to allow customers to pay using signatures.

In a statement about the lawsuit, the retailer said that, “PIN is the only truly secure form of cardholder verification in the marketplace today, and it offers superior security to our customers.”

Wal-Mart claimed that even though Visa has supported PIN transactions (and their higher levels of security) in other countries, they required Wal-Mart to support signature transactions because they make more money off of signature transactions than they do off of PIN.

Home Depot’s Claims

A few weeks ago, Home Depot joined in on the litigation wave and filed a lawsuit against both Visa and MasterCard citing the same issues as Wal-Mart has with signature authentication for purchases. Home Depot specifically requested the card networks to support two-factor authentication, which is another way of saying they are seeking support for PIN implementation.

Calling the fraud that merchants and customers incur “unrivaled,” Home Depot, like Wal-Mart, accused the card networks of being more concerned with their profits and market position than with the true security of payment cards.

A MasterCard executive commented to Fortune that regardless of how the identity is confirmed, just having a chip in the card already makes it world’s more secure than predecessors, rendering stolen data basically useless to fraudsters. This is right in line with a past post of ours where we explored chip and PIN vs chip and signature.

The Situation at Kroger

This week, Kroger also announced a lawsuit against Visa, but the story leading up to this point was much more tumultuous. Like Wal-Mart and Home Depot, Kroger was upset over the lack of PIN requirement for chip-based debit transactions at the network level, so they enforced this requirement on their own at their own stores, routing transactions through networks other than Visa.

This led to a $7 million fine from Visa, who responded by saying that the configuration of Kroger’s payment terminals does not meet its rules, requiring that payments are routed through its network. Visa is threatening to raise fees on Kroger and cut off the grocer’s ability to accept Visa debit cards altogether.

In the lawsuit, Kroger alleges that due to its size, reprogramming its tens of thousands of terminals is not feasible, but neither is losing revenue from all Visa debit cardholders. As stated in the filing, “There is no rational basis for Visa to cut off Kroger’s ability to accept any or all Visa debit cards unless Visa intended to punish Kroger.”

How are the Card Networks Responding?

In a June 17th Bloomberg article, MasterCard was expected to put new procedures in place to cut down the time required to certify merchant equipment - from days or weeks to hours. The same article cited a similar process in the works at Visa, along with new chargeback measures, blocking merchants from all chargebacks under $25, and all chargebacks after the 10th on any given account starting in October. Last week, American Express released an announcement mimicking Visa’s new chargeback policy. Whether or not this stems further lawsuits is yet to be seen, but it is certainly an early indicator that the long-term fraud liability shift we’ve all seen coming with EMV is far from being something either party - but especially financial institutions - can count on.

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Topics: Lawsuits, EMV, Fraud