Class Action Merchant EMV Lawsuit Could Make The EMV Transition A Lot Messier

EMV has always delivered more than its fair share of headaches and surprises—and this week even has the MasterCard CEO doing some EMV griping of his own—but a class action lawsuit filed last week is raising yet another troubling EMV question. Is the liability shift appropriate if merchants have done everything in their power to embrace EMV? If backlogs from the card brands are why a merchant doesn’t have an EMV greenlight, is it fair to punish them with the liability shift?

Like every payments issue, there are details to be dealt with. Did the merchant submit all paperwork in a reasonable timeframe? One can’t file 10 minutes before the deadline and then blame the backlog for a lack of approval.

Still, it’s an interesting question. And the lawsuit from B&R Supermarkets and Grove Liquors goes further than saying that the backlog was unexpected or larger than expected. The filing accuses the card brands—and other payments players—of deliberately being slow, in an attempt to push off liability costs on as many merchants as possible, regardless of their EMV efforts.

The two merchants have sued almost every major U.S. payments player (Visa, MasterCard, Amex, Discover, Bank Of America, Barclays, CapitalOne, Chase, Citibank, PNC, USAA Savings Bank, U.S. Bancorp, Wells Fargo, EMVCo.,) and threw in Japan’s JCB and China’s UnionPay because, well, why not?

“What defendants knew, but Milam’s Market, Grove Liquors and the rest of the Class did not and could not know, was that purchasing new POS equipment and training their staff was not going to be enough,” the lawsuit said. “In addition, the equipment would have to be ‘certified’ after the fact in a murky, nebulous process that was utterly outside of their control.” Welcome, merchants, to the world of payments.

The lawsuit continued: “Instead, the ‘certification’ process is controlled by the very entities that benefit from the Liability Shift and it is the primary means through which defendants’ illegal conduct has been able to flourish. Class members such as the plaintiffs here, could not timely comply with the standard, no matter what they did, because the Defendants refused to, or were unable to, ‘certify’ the new equipment by the deadline – or, indeed, ever.”

This is an interesting legal argument. Because one party stands to benefit from an action, they must have taken that action deliberately to receive that benefit. But that’s not necessarily the case.

The lawsuit takes it yet a step further. Not only does it argue that these companies delayed approvals deliberately, but it contends that they never intended to do anything else.

“Worse, the Networks, the Issuing Banks and EMVCo knew from the outset – and the Class members are now learning – that the ‘certification’ process would take years after the October 1, 2015 Liability Shift was imposed. The result has been massively increased costs for chargebacks being laid at the feet of the Class members, while the Issuing Banks have been spared those same costs and the Networks have continued profit – just as defendants knew would happen. Nothing Milam’s Market could have done – short of making the business-crippling decision to stop accepting Visa cards – could have prevented this outcome. Indeed, the expenditures it made in an effort to comply with defendants’ new EMV chip regime have all been for naught, as defendants have failed to conduct the very certification required.”

The lawsuit said that the merchants involved work with their acquirer, Worldpay, and their POS company, NCR, to support EMV “well prior to the liability shift” with EMV-friendly Equinox L5300 card readers.

Although “very large retailers such as Target, Walmart and others quickly had their EMV-processing systems ‘certified’ – thus sparing them the Liability Shift – the members of the Class are at the mercy of defendants. Merchants like Milam’s Market and Grove Liquors have no control over the ‘certification’ process. All they can do is request certification and wait for it to occur. And no one can say when that will be,” the filing said.

The lawsuit is seeking class-action certification, which would allow it to assemble a huge number of merchants with similar complaints. And you thought the EMV transition couldn’t get any messier.