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Supreme Court to Decide If Swipe Fee Challenge Can Proceed

U.S. Supreme Court

The U.S. Supreme Court has reportedly agreed to hear an appeal from a convenience store regarding the timeliness of its lawsuit challenging a Federal Reserve regulation on debit card swipe fees.

The lawsuit filed by Corner Post, a convenience store located in North Dakota, challenges the Federal Reserve’s Regulation II, which was implemented in 2011 and set a cap on interchange fees charged by banks to merchants for processing debit card transactions, Law360 reported Friday (Sept. 29).

Corner Post and other plaintiffs claim that Regulation II is in violation of the Durbin Amendment, a provision of the Dodd-Frank Act, which aimed to regulate debit card swipe fees, according to the report.

The central issue in Corner Post’s petition is whether its lawsuit was timely filed under the Administrative Procedure Act (APA), the report said. The APA has a six-year statute of limitations for rules challenges. Corner Post argues that it met the deadline because it sued within three years of opening and first being injured by Regulation II. However, the Eighth Circuit ruled that the clock for APA claims begins running from the date of rule publication, not from the date of alleged injury. Corner Post’s suit was filed 10 years after the publication of Regulation II, leading the court to conclude that it was brought too late.

Corner Post and its supporters argue that the Eighth Circuit’s interpretation turns the statute of limitations for APA claims into a permanent obstacle to judicial review, per the report. They believe that the limitations period should start when a plaintiff is allegedly injured by an agency action, which is the view held by the Sixth Circuit.

The Supreme Court’s decision to grant Corner Post’s petition aims to resolve the dispute over the correct interpretation of when APA claims accrue, according to the report.

In other recent news around swipe fees, the Credit Card Competition Act legislation was reintroduced on Capitol Hill in June, aiming to mandate banks to enable card payments to be routed over at least one network that competes with Mastercard and with Visa.

Proponents say the legislation would give merchants a greater range of choice — because they would have the option to embrace networks with fees, including swipe fees, cheaper than those seen with Mastercard and Visa.