NEW YORK (
) -- Even the retailers are siding with the
in its request for a stay of U.S. district court Judge Richard J. Leon's orders regarding the Durbin Amendment, while the regulator prepares an appeal.
After a group of retailers sued the Federal Reserve on the grounds that its implementation of the Durbin Amendment was insufficient, Judge Leon in Washington ruled on July 31 that the Federal Reserve had "clearly disregarded Congress's statutory intent by inappropriately inflating all debit card transaction fees by billions of dollars and failing to provide merchants with multiple unaffiliated networks for each debit transaction." The judge effectively sent the regulator back to the drawing board.
But the Fed in a court hearing Wednesday said it would file an appeal against the ruling, and requested a stay of the judge's ruling, saying it lacked the authority to impose an interim set of rules on Durbin. Even the merchants who sued the Fed agreed that a stay beyond Aug. 28 would be best for them, because without a stay, the Fed's rules would be temporarily thrown out, meaning the banks could go back to charging whatever they wanted to process debit card purchase transactions for the merchants.
The Durbin Amendment -- named after Senator Richard Durbin (D., Ill.) -- is part of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which President Obama signed into law in July 2010. The Durbin Amendment placed limits on the interchange fees paid by merchants to large banks to process debit card purchase transactions, while also giving retailers more choice in which network to use to route debit card payments.
The idea of Durbin was to lower debit-purchase-transaction processing costs, so that savings to merchants could be passed to consumers through lower prices.
The Federal Reserve in December 2010 estimated the average debit card interchange fee paid during 2009 was 44 cents, and initially proposed a cap on interchange fees at 12 cents. After the usual comment period, the Fed in June 2011 issued its final ruling, for an interchange fee cap of 21 cents, plus an additional "5 basis points multiplied by the value of the transaction."
While many investors and bankers breathed a sigh of relief that the Federal Reserve raised the interchange fee cap considerably from its initial proposal, large banks reported significant declines in fee revenue after the rules were implemented during the fourth quarter of 2011.
Bank of America
said in January 2012 that "the implementation of new interchange fee rules in the fourth quarter of 2011 as a result of the Durbin Amendment... reduced revenue by $430 million."
saw its fourth-quarter 2011 noninterest revenue in its consumer and business banking segment decline by 7%, "driven by lower debit card revenue reflecting the impact of the Durbin Amendment, partially offset by increased deposit-related fees."
said in January 2012 that its fourth-quarter 2011 "Card fees declined $333 million from third quarter due to a $365 million decline in debit interchange fees partially offset by improved credit card fee revenue."
Since Judge Leon said in his ruling that merchants should have the freedom to select a payment processor for every single debit card transaction, shares of
underperformed those of
over the succeeding weeks, since Visa has a much larger market share.
But implementing the judge's order would not only be difficult for the Fed, it would create a whole new can of worms for banks, since many debit cards are only designed to work on one payment network. Millions of new debit cards would have to be issued, and many banks would also have to implement significant systems changes.
KBW analyst Sanjay Sakhrani last week advised investors to
, since they had declined 7% from July 30 through Aug. 14, while MasterCard was up 5%.
In a note following the Fed's announcement of the appeal, Sakhrani on Wednesday called the regulator's action "incrementally positive new," since it "took some wind out of the sales" for a possible refund by banks of interchange fees the judge finds excessive.
"This action should likely lengthen the process to get to some sort of finality, which not only increases the probability of a more favorable outcome (i.e., given the appellate court will take fresh look at the case) but also give the industry time to plan for any contingencies in an adverse scenario," he wrote. Sakhrani continues to rate both Visa and MasterCard "outperform."
Sterne Agee analyst Greg Smith has neutral ratings on Visa and MasterCard, and in a note on Wednesday wrote that although the Fed's appeal "provides some near-term relief of pressure on Visa and MasterCard (more so on Visa given its higher debit market share), the overhang will drag on and likely create consternation as we move closer to a decision on the appeal."
-- Written by Philip van Doorn in Jupiter, Fla.
Philip W. van Doorn is a member of TheStreet's banking and finance team, commenting on industry and regulatory trends. He previously served as the senior analyst for TheStreet.com Ratings, responsible for assigning financial strength ratings to banks and savings and loan institutions. Mr. van Doorn previously served as a loan operations officer at Riverside National Bank in Fort Pierce, Fla., and as a credit analyst at the Federal Home Loan Bank of New York, where he monitored banks in New York, New Jersey and Puerto Rico. Mr. van Doorn has additional experience in the mutual fund and computer software industries. He holds a bachelor of science in business administration from Long Island University.