CHICAGO (TheStreet) -- If the holiday season is make-it-or-break-it time for many retailers, it's also a major windfall for Visa (V) - Get Visa Inc. Class A Report and MasterCard (MA) - Get Mastercard Inc. (MA) Report. Every time a shopper pulls out his or her credit card, a percentage of that transaction goes straight to the large credit cards companies and the banks that issue their cards. Think of it as a gift that keeps on giving to large financial institutions.
Those steadily rising fees have left many small businesses feeling like the Grinch. According to the National Retail Federation, credit- and debit-card fees have tripled over the past 10 years, to about $50 billion a year. That money comes straight out of retailers' profits, and small businesses eventually banded together to protest in increase in these so-called "swipe fees."
On average, the credit-card companies and banks charge a 2% fee on any payment made by credit card, a fee customers don't see but that makes a sizable dent in retailers' razor-thin profits. Although Visa and MasterCard could theoretically compete for business by lowering their fees, that hasn't happened.
The growing popularity of "premium" credit cards has only made things worse. A card that earns airline miles or other rewards often comes with 3% to 4% fee. The money to pay for those "rewards" is coming right out of merchants' registers, something many credit-card users are unaware of.
So the retail industry fought back, lobbying Congress to make changes as part of 2010's Wall Street reform bill. Debit cards, because they act as a cash withdrawal mechanism, are regulated by the Federal Reserve, and a measure was passed that capped debit card fees at a maximum of 24 cents per transaction.
But credit cards were a more uphill battle, requiring a trip to court. A large consortium of merchants, including retail giants such as
, the National Association of Convenience Stores, the Independent Booksellers' Association and the National Restaurant Association, joined together for a class-action lawsuit against Visa, MasterCard and the largest credit-card-issuing banks.
Last month, a $7.3 billion dollar settlement was offered to retailers, along with other concessions, such as allowing merchants to charge their own fees to recoup the amount stores paid in swipe fees. The proposed settlement put no limits on swipe fee rates, though, as had been done with debit card rates -- one of the retail industry's major concerns.
In other words, the settlement didn't settle anything.
While some retailers have said they will accept the offer, many others did not, including heavyweights such as
and the largest retail associations. Though theoretically it would be great to charge customers directly for the fees imposed by credit cards, what retailer wants to add an extra fee onto a customer's receipt in the current economic climate? Doesn't that risk turning off shoppers and driving them away?
The amount of the settlement also becomes less impressive once you look at the other numbers involved. The lawyers' fees alone add up to $750 million, according to the National Retail Federation, nearly 10% of the total. Divide the remaining $6.5 billion by the millions of retailers that accept credit cards and it's hardly a windfall.
One other sticking point is a provision that would bar all retailers -- even those who do not yet exist -- from filing future lawsuits over swipe fees. That has raised fears that the credit card companies and banks would be free to do what they wanted in the future, free of the threat of legal action.
Merchants who objected to the settlement asked for an immediate appeal on legal grounds, which was recently denied, and the settlement got preliminary approval from a New York court. Over the next few months, all retailers that accept major credit cards will have the opportunity to accept the settlement or opt out. It is only after that months-long process is complete that arguments on final approval can be held.
It's encouraging to know that small businesses can take collective action against well-funded, well-entrenched financial corporations. But it's still not clear whether all their demands will be met. We are a nation that runs on payments via plastic, and that's unlikely to change, no matter what the final settlement may be.
This commentary comes from an independent investor or market observer as part of TheStreet guest contributor program. The views expressed are those of the author and do not necessarily represent the views of TheStreet or its management.