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Two Recent Card Payment Developments

August 18, 2017

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Our Bryan Cave-affiliated sister site, the BC Retail Law Blog, recently published two posts that may be of interest to our banking, fintech and payments clients.

In “Bans on Credit Card Surcharges Face First Amendment Challenges,” the Retail Law Blog looks at how state laws that prohibit retailers from charging customers a surcharge for using a credit card are being challenged on First Amendment grounds.

For more than four decades, California’s Song-Beverly Credit Card Act of 1971 prohibited retailers from charging credit card customers such a surcharge. In Italian Colors Restaurant, et al. v. Harris, 99 F.Supp.3d 1199 (E.D. Cal. 2015), a federal judge ruled that the law unconstitutionally limits retailers’ freedom of speech. The California attorney general appealed, and the case is set for oral argument before the Ninth Circuit Court of Appeals on August 17.

One consequence of these actions may be to make credit cards more expensive to the consumer, which, in turn, could encourage further development of alternative forms of payment.

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Mobile Wallets and Tokenization: Banks are Catching On

April 24, 2017

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On April 20, 2017, the American Banker reported that U.S. Bank’s new high-end credit card features an interesting differentiator from the high-end cards recently introduced by other large credit card issuers.  U.S. Bank’s new high-end credit card significantly incents mobile usage over conventional swipe or chip dip for purchases.  While the other card offerings typically provide triple miles for travel and entertainment purchases, the U.S. Bank “Altitude Reserve Visa Infinite” card puts its money on getting cardholders to enroll their cards in mobile wallets – Apple Pay, Android Pay, Samsung Pay and Microsoft Wallet.

For a generation of customers who want to do everything, or as much as possible, on their phones, millennials have not adopted mobile payments as quickly as expected. Personally, I constantly encourage everyone to enroll their cards in the mobile wallet on their phone ASAP and use it that way at every opportunity.

I do that for two reasons –  1) it is much more secure than swiping your stripe or dipping your chip and 2) it is much faster than inserting your chip card at the terminal to complete the transaction.

Plus, it looks really cool to wave your phone at the terminal and “boing” you’re done. I smugly watch the people in line behind me watching this transaction with interest.

The transaction is more secure because the phone wallets keep card credentials in a secure element on the phone, which is highly resistant to hacking, and more importantly, does not transmit real card credentials to the merchant. Instead, the merchant only receives a one-time use tokenized version of your card credentials. This means that if the merchant’s database is hacked, the tokenized version of your card credentials that are exposed are just useless gibberish.

This saves the card issuer from eating losses under Reg Z for unauthorized transactions and crediting your account for charges the hacker racked up on a spending spree for fenceable goods. Actually, most of those unauthorized charges flow back to the merchant who was hacked, but the issuers whose cards are exposed typically do not recover their full costs.

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U.S. Supreme Court Rules NY Surcharge Law Regulates Speech

April 3, 2017

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What the U.S. Supreme Court Did

The U.S. Supreme Court ruled last week that New York’s statutory ban on merchant’s surcharging customers who choose to pay with credit cards is a regulation of speech and is not merely a regulation of pricing conduct, as the lower court had ruled. New York’s statute, N. Y. Gen. Bus. Law Ann. §518, makes it a misdemeanor punishable by a fine or imprisonment for a merchant to “impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check or similar means.”  In Expressions Hair Design et al. v. Schneiderman, et al., the Court required the Second Circuit to consider the validity of the law under the First Amendment.  Specifically, the circuit court of appeals must now determine whether the New York law is a valid commercial speech regulation and whether the law can be upheld as a disclosure requirement.  Previously, the Second Circuit ruled that the law regulated conduct, not speech, since it required that the merchant’s prices should be the same whether a customer uses a credit card or cash.

Impact on Merchants and Payment Networks

In short, the status quo remains intact for now, in New York and in the eleven other states that regulate surcharges. The Supreme Court’s action does not immediately uphold or invalidate New York’s anti-surcharge law. Reviving the claim after it had been dismissed by the lower court, the law now must be reviewed again by the court of appeals (and potentially again after that by the Supreme Court) as to whether the law is a valid commercial regulation of speech. This review process could take a while, especially considering that one of the Supreme Court Justices recommended that the federal court of appeals ask New York’s top state court to give it an “accurate picture of how, exactly, the statute works.”

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