The industry may be most familiar with NACS advocacy efforts in Congress and before federal administrative agencies, but NACS has long believed that it must advocate for the industry in all of the branches of government in order to maximize its effectiveness. With that in mind, NACS has been consistently involved in litigation matters that can impact the industry. Current examples of NACS advocacy in the courts are:
Payment Card Interchange Fee and Merchant Discount Antitrust Litigation
NACS led the way to push for all merchants to get justice regarding the antitrust violations of Visa, Mastercard and the major payment card issuing banks. In 2005, NACS was a lead plaintiff in the leading class action case filed on these issues. Then, when an inadequate settlement was forced through the court in 2012, NACS led the successful efforts to have that settlement overturned by the U.S. Court of Appeals for the 2nd Circuit. Having opted out of that inadequate settlement, NACS worked with the leading group of merchants that opted out of the settlement to file a new case—7-Eleven v. Visa. NACS continues as an active plaintiff in that case. Summary judgment motions filed by both sides in that case in September 2020 await decisions by the court in the U.S. District Court for the Eastern District of New York.
NACS led the way to push for all merchants to get justice regarding the antitrust violations of Visa, Mastercard and the card issuing banks.
United States v. Philip Morris
The U.S. Department of Justice filed suit against the major tobacco manufacturers in 1999 alleging wide-ranging violations of law relating to their sales and public representations regarding cigarettes. In 2007, the U.S. District Court for the District of Columbia found in favor of the Justice Department, but one aspect of the many parts of the remedial order entered by the court would have required retailers to put signs on their counters next to their points-of-sale indicating that consumers were misled about the harms of smoking. NACS filed a brief on appeal arguing that the sign requirement violated retailers’ due process, property and free speech rights—particularly because retailers were never involved in the litigation prior to the order. The U.S. Court of Appeals for the District of Columbia Circuit agreed with NACS and sent the case back to the District Court for further consideration. NACS has submitted multiple additional briefs on these issues to the District Court and is now preparing for an evidentiary hearing on these issues, which is scheduled to be held in 2021.
Standing Rock Sioux v. U.S. Army Corps of Engineers
A number of Native American tribes filed suit against the U.S. Army Corps of Engineers and the Dakota Access Pipeline alleging that the pipeline had not performed the necessary environmental reviews prior to beginning operations. In July 2020, the U.S. District Court for the District of Columbia agreed with the plaintiffs and entered an injunction ordering the pipeline to stop operations pending the completion of the review, which typically takes more than one year. NACS joined other industry groups in filing a brief asking the U.S. Court of Appeals for the District of Columbia Circuit to allow the pipeline to continue operating while the litigation continues. The Appeals Court agreed with NACS, and the pipeline remains in operation. NACS also filed a brief arguing that the District Court’s decision requiring further environmental review should be overturned and is awaiting a decision on that question.
New Hampshire Lottery Commission v. Barr
In a major victory for NACS, the U.S. Department of Justice in 2018 reverted to its traditional view that the Wire Act makes all internet gambling illegal—not just sports gambling. The New Hampshire Lottery challenged that decision in federal court. NACS filed a brief in the U.S. District Court supporting the Justice Department’s view that the Wire Act bans internet lotteries, but the New Hampshire Lottery prevailed. On appeal, NACS again filed a brief detailing why internet lotteries are not allowed under federal law. The case was argued before the U.S. Court of Appeals for the 1st Circuit in June 2020 and is awaiting a decision.