SAN FRANCISCO – Burlingame-based attorney Nancy L. Fineman argued her case on behalf of the Broadway Grill in state court but was told to take her fight to the federal level.
With extensive experience in defending financial fraud victims, the principal with Cotchett, Pitre & McCarthy, told the Northern California Record how her client and California restaurant was not allowed to modify the meaning of the class action suit under the Class Action Fairness Act (CAFA) in order to deny federal court jurisdiction over their anti-trust violation charge against Visa.
Basing its decision on Benko v. Quality Loan Service Corp., Judges Mary M. Schroeder, Steven Paul Logan and Johnnie B. Rawlinson concluded now that the 2nd Circuit Court decision to overturn the original settlement is intact, Fineman most move forward to a higher court. However, the decision was not unanimous with Rawlinson dissenting.
“I agree with the district court that the amendment of the complaint in this case fit within the parameters recently articulated by us in Benko v. Quality Loan Serv. Corp.,” wrote Rawlinson in the order.
Along with class definition, the former research attorney for the San Mateo County Superior Court said from her client's standpoint, the business gets charged different amounts depending on what major brand credit card is used.
“They have to accept all the cards and some have higher fees than others and it cost them a lot of money," Fineman said. "They are not allowed to suggest that a customer use a card with a lower fee."
She said since the advent of credit cards, most people use plastic to pay for everything. However, it is not turning out to benefit businesses like Broadway Grill that are bearing the brunt of all the usage.
“For the airline who is giving customers airline miles, that is an extra charge they (consumers) don’t realize the merchants are paying,” she said.
Fineman said Visa is committing unfair businesses practices and “have entered into anti-trust violations by going one step further with Mastercard."
Her reference is to the 2003 suit that ended in March this year with the U.S. Supreme Court denying to review a milestone antitrust settlement between Visa and MasterCard brought on by 19 large-scale retailers, who charged the creditors for improperly fixing interchange fees.
“They don’t have secret meetings in smoky-filled rooms but we do have a pattern and a practice where both are raising their interchange fees” Fineman said of Visa and MasterCard's fees. “Because of all the competition, the consumers are paying less on credit cards but the merchants fees have not decreased.”
Fineman was directed May 18 to take the case to federal court.
“My circuit said because we didn’t use the word citizens, we have to go to federal court and be part of an action that is pending in New York with cases from all around the country,” she said.
But large suits and major names do not intimidate Fineman. Not only did she win a $1.5 billion-dollar case that awarded her and an assisting team the 2014 Public Justice Trial Lawyer of the Year, but she was also one of the first two lawyers, along with her partner Joseph Cotchett, to interview Bernie Madoff in prison.
Fineman said she looks forward to continue the fight for Broadway Grill against faulty fees they are subject to with every Visa card swipe.