WHSmith has joined the raft of high street giants suing Visa and MasterCard in the High Court over allegations both companies charged retailers anti-competitive credit card fees.
WHSmith has instructed Humphries Kerstetter on its dual claims against Visa and MasterCard, which will seek to claim £17.5m and £5.5m in repayments respectively, The Lawyer understands.
The claims were filed at the High Court last Wednesday (2 December). The instruction follows Humphries Kerstetter securing a settlement of £39m from MasterCard for its client Tesco in July.
The firm is also acting for Tesco on its claim against Visa, scheduled to be heard before Mr Justice Popplewell in the commercial court next October.
The consortium of retailers bringing claims against the payment businesses that combined exceed £1bn in value will dominate the High Court in 2016 and 2017, with Asda, Marks & Spencer, Next, Arcadia, B&Q, Debenhams, Sainsbury’s, Morrisons, Dixons and Ocado all seeking to recoup interchange fees dating back a decade.
It signals major mandates for a large group of firms instructed on the claims including Mishcon de Reya (for Ocado and Sainsbury’s against MasterCard), Morgan Lewis (for Sainsbury’s against Visa), Stewarts (for Arcadia Group and Marks & Spencer and 10 other claimants) and Wragge Lawrence Graham & Co (for Dixons).
Sainsbury’s originally instructed Bingham McCutchen on its claim against Visa but transferred the mandate to Morgan Lewis following the move of around 230 partners late last year.
A number of European corporates including Hertz, Deutsche Bahn and Metro will also pursue parallel claims against both Visa and MasterCard in the High Court, instructing Hausfeld.
The claims follow a US settlement in 2012 in which Visa and MasterCard agreed to pay US retailers $7.25bn – the largest antitrust settlement in US history.
The UK litigation was also sparked by a 2007 EU regulatory ruling accusing MasterCard of artificially inflating fees and over-charging retailers on cross-border card transactions. The UK Government subsequently launched a consultation on interchange fee caps, which will come into force in the New Year.
The first of the credit card competition litigation to be heard in London next year is listed to be Sainsbury’s v MasterCard, with the retailer turning to Mishcon on what will become a test case in the run of antitrust disputes and establish the liability of MasterCard in the UK.
MasterCard has turned to Jones Day partner Nicholas Cotter to defend the numerous claims, with the first scheduled for seven weeks from 25 January.
Visa will be represented by Linklaters partner Michael Sanders on the Visa UK and Visa Europe claims, and Milbank Tweed Hadley & McCloy partner Julian Stait on the Visa US claims.
Stewarts Law’s claim for Arcadia and others against MasterCard on liability – the most substantial of the claims and likely to be valued in excess of half a billion pounds – is scheduled for June 2016.
The claims against Visa brought by the Stewarts Law group, Sainsbury’s and Tesco have a combined listing for a trial on liability from October 2017, with the trial on quantum scheduled for 2018.
The legal line-up
25 January 2016, seven weeks – Sainsbury’s Supermarkets Ltd v MasterCard Inc and ors
For the claimant, Sainsbury’s
Brick Court’s Mark Brealey QC and Sarah Love and One Essex Court’s Derek Spitz, instructed by Mishcon de Reya partner Rob Murray
For the defendant, MasterCard
Brick Court’s Mark Hoskins QC and One Essex Court’s Matthew Cook, instructed by Jones Day partner Nicholas Cotter
June 2016 – Arcadia and ors v MasterCard Inc and ors
For the claimant, Arcadia and ors
3 Verulam Buildings’ Paul Lowenstein QC, Brick Court’s Fergus Randolph QC and Max Schaefer and Matrix Chambers’ Christopher Brown, instructed by Stewarts Law partners Jonathan Sinclair and Kate Pollock
For the defendant, MasterCard
Brick Court’s Mark Hoskins QC and Hugo Leith and One Essex Court’s Matthew Cook, instructed by Jones Day partner Nicholas Cotter
October 2016 – Arcadia and ors, Marks & Spencer, Sainsbury’s and Tesco v Visa
For the first claimant, Arcadia and others
3 Verulam Buildings’ Paul Lowenstein QC, Brick Court’s Fergus Randolph QC and Max Schaefer, Matrix Chambers’ Christopher Brown, instructed by Stewarts Law partners Jonathan Sinclair, Scott Campbell and Inge Forster
For the second claimant, M&S
Monckton Chambers’ Daniel Beard QC and Ligia Osepciu, instructed by Stewarts Law partner Mo Bhaskaran
For the third claimant, Tesco
Fountain Court Chambers’ David Railton QC, Monckton Chambers’ Tim Ward QC and Rob Williams, instructed by Humphries Kerstetter partner Mark Humphries
For the fourth claimant, Sainsbury’s
Brick Court’s Mark Brealey QC and One Essex Court’s Derek Spitz, instructed by Morgan Lewis & Bockius partner Frances Murphy
For the first and second defendants, Visa UK and Europe
20 Essex Street’s Stephen Morris QC, Brick Court’s Daniel Jowell QC and Daniel Piccinin, Monckton Chambers’ Anneli Howard and Blackstone’s Jason Pobjoy, instructed by Linklaters partner Michael Sanders
For the third to fifth defendants, Visa US
Blackstone Chambers’ Dinah Rose QC and Brian Kennelly, instructed by Milbank partner Julian Stait