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Minnesota Supreme Court To Hear Retail Pharmacy Pricing Case

Appeal Supported By MnRA, Partners

In 2009, Walgreens, CVS, Rite Aid, Wal-Mart, Target, Sears, Kroger, and others were defendants in a class action lawsuit filed in Minnesota state court. Similar lawsuits were filed at the same time in Michigan and West Virginia. In the complaint, the plaintiffs alleged that a Minnesota statute, enacted in the late 1970s but never enforced, prohibits pharmacies from making any more profit on generic drugs than they would have made on the sale of the equivalent brand name drugs.

As a group, the pharmacy defendants successfully moved to dismiss three cases. A trial court found that there was no private right of action to enforce the statute at issue, and that the plaintiffs failed to state a claim under the Minnesota Consumer Fraud Act (MCFA). But more recently, in a 2-1 decision the intermediate court of appeals reversed most of the trial court's ruling, finding that the class action plaintiffs can proceed with a claim under the MCFA. 

Last week the Minnesota Supreme Court agreed to hear an appeal of the intermediate court ruling.

MnRA's Involvement

The Minnesota Retailers Association (MnRA), at the direction of its Board, joined other interested partners in support of retail pharmacy defendants in June by petitioning to submit an amicus (or friend of the court) brief. The petition asked for a review of the appellate court's decision based on MnRA's belief that the MCFA should not be applied in this case, and that there is a potentially an impact on other areas of retail if a precedent of applying MCFA in this manner stands.

The Minnesota Supreme Court will hear the case and MnRA will join a group in submitting an amicus brief. That group includes the Retail Litigation Center, National Association of Chain Drug Stores, National Community Pharmacists Association, Independent Pharmacy Cooperative, Thrifty White Pharmacy, Minnesota Pharmacists Association, and Minnesota Chamber of Commerce.

Why Retailers Should Pay Attention

If successful, this lawsuit could result in damages equivalent to all of the "excess" profits each of the defendants made on the sale of generic drugs in the State going back to 2004, and would prevent the same defendants from making such "excess" profits going forward.

Although the current lawsuit is only against the larger chains, the plaintiffs' theory of the case applies equally to smaller chains and independent pharmacies. Also, there are similar statutes in roughly a dozen other states, and a win for plaintiffs in Minnesota likely will embolden the plaintiffs' bar to pursue similar litigation in some or all of those states.
 
In addition, MnRA is concerned that this case will establish precedent where the pricing of other non-pharmacy retail goods and services could be impacted by frivolous claims under the MCFA.

Object, Opt-Out, File a Claim, Do Nothing

Retailers have options relative to the interchange settlement. May 28 deadline approaches.

Most businesses in Minnesota received their 27 page interchange settlement legal briefing in the last 30 days and set it on that special pile in the corner of the desk.

Merchants receiving the notice and/or accepting Visa or Mastercard branded cards between January 1, 2004 and November 28, 2012, are automatically included in the interchange class action case and its related proposed settlement. This settlement is the result of antitrust litigation filed by merchants and merchant representatives against Visa and MasterCard in 2005.

As a part of the interchange settlement merchants need to make a decision about how they react before May 28.  Essentially there are five options:
   - Object to the settlement
   - Opt-out of the settlement
   - Object and opt-out of the settlement
   - File a claim
   - Do nothing

How do merchants determine the right response?

Merchants should think critically about the options. Many MnRA partners (including the National Retail Federation and Retail Industry Leaders Association) and members have already outed-out, objected, or both.

Each merchant needs to decide on its own how to respond to the settlement. You can review the settlement and information related to it at www.paymentcardsettlement.comMerchantsobject.com provides a digest of the issue from trade groups opposing the settlement.

What are the concerns with the settlement?

The proposed settlement offers class members money damages estimated to be approximately two or three months' worth of interchange and, among other things, limited modifications to Visa's and MasterCard's surcharging rules, by which, under certain limited circumstances, merchants will be allowed to surcharge customers who pay with Visa or MasterCard credit cards. The settlement offers merchants no meaningful changes to the interchange or "swipe fee" rules that are the centerpiece of the case. Nonetheless, the settlement requires class members to release Visa and MasterCard from liability, FOREVER, for any anti-competitive rules and conduct currently in place (including the interchange or swipe fee rules) and any "substantially similar rules" instituted at any time in the future.

Those that object to the proposed settlement argue that it:
1. Locks in the Visa/MasterCard duopoly;
2. Provides no relief from interchange rate setting or other rules;
3. Includes a mechanism for surcharging consumers to pay for Visa/MasterCard's anti-competitive behavior that is basically unworkable;
4. Denies all current and future merchants their right to bring future legal action related to interchange rules and rate setting, among other things against Visa, MasterCard and the banks; and
5. Could limit emerging innovations that can bring meaningful competition to the marketplace, such as mobile payments.

What can merchants do if they oppose the settlement?

If a merchant independently concludes that the settlement is bad for them and/or for merchants generally, there are three options, each of which has very different meanings and consequences: 1) Object to the entire settlement; 2) Opt-out of the settlement (although you are only permitted to opt-out of the money damages portion of the settlement); or 3) Both object and opt-out.

Any of these choices must be exercised by May 28, 2013.  Regardless of your choice, if the settlement is finally approved in September (subject to any appeals), you will be bound by the terms of the settlement and will be barred from future litigation against Visa and MasterCard (the "release").

What does it mean to object to the settlement?

Objecting to the settlement means telling Judge John Gleeson, the presiding judge in the case, and the proponents of the settlement why you oppose it. Even if you opt-out to preserve your right to seek past damages, you will still be bound by the release and the various purported rules changes (offered in lieu of swipe fee changes). If you do not object, you will have relinquished your only opportunity to make your opposition known to Judge Gleeson and have it noted in the record for appeal. Therefore, if you think the deal is bad overall, you should consider opting-out and objecting (explained below). 

The benefit of objecting is that you (along with other objectors) may persuade Judge Gleeson that the settlement is unfair, thus it should not be finally approved. Further, if you do not object, you will have relinquished your only opportunity to make your opposition known to the court and noted in the record for appeal. Therefore, if you do not accept all of the settlement's terms, you should consider objecting (as well as opting-out).  

We are not aware of significant costs or risks of objecting. It is your right to let Judge Gleeson know how you feel about the settlement.

What does it mean to opt-out of the settlement?

Opting-out means that you exclude yourself from the past damages settlement class and reject the money reward portion of the settlement, which preserves your right to sue Visa and MasterCard for past damages for conduct that occurred before November 27, 2012. Opting-out for past damages in this settlement does not exclude you from the settlement's release or the part of the settlement that purports to change certain Visa and MasterCard rules (although not Visa's or MasterCard's swipe fee-setting practices). You may not opt-out of those portions of the settlement. That is why, if you believe the settlement is bad overall and you want to be able to sue for more damages, you should consider opting-out and objecting to the settlement. 

Opting-out preserves your right to sue for more damages than you would have received if you had not opted-out of the proposed settlement for conduct that occurred before November 27, 2012. Opting-out also sends a clear message to Judge Gleeson that no part of the settlement is acceptable to you.

If you opt-out you will not collect any money damages from the settlement. You will only be able to collect money damages relating to Visa's and MasterCard's rules if you sue Visa and MasterCard on your own or with other merchants and that lawsuit is successful.

What are the benefits of opting out and objecting together?

Opting-out and objecting is the most complete way to express your opposition to the settlement. You will put the most pressure on Judge Gleeson to reject the settlement. You will also get the best protection from any argument that you have accepted the settlement's release terms. And you will be entitled to sue for past damages.

You can object and not opt-out, however, if you do not opt-out you will lose your right to sue independently or as part of a larger group for more damages.

What are the next steps for merchants?

Action is required before May 28, 2013. Once you have made your decision, follow to corresponding link below.
 
To object and opt-out: Click here to visit merchantsobject.com to object and opt-out online or via U.S. Mail.

To only object: Click here to download a template to object.

To only opt-out: Click her to download a template to opt-out.

To file a claim: Click here to visit the Payment Card Settlement website to learn about filing a claim.

To do nothing: No action is required. Click here to understand what you are agreeing to by doing nothing.

This digest of this issue and options for merchants is informational and should not be interpreted as legal advice.

Special thanks to the Retail Industry Leaders Association for providing advice and content for this issue update. 

Understanding Minnesota's Retail Job Market

Use available data to help plan for your next hire.

As the economy picks up the Minnesota Retailers Association (MnRA) has fielded calls from members looking to understand their local job market. Retailers planning for future employment needs have requested information on trends in the labor marketplace.

The State of Minnesota provides a variety of data and resources on today's jobs market.

One of our most used resources here at MnRA is the Positively Minnesota website maintained by the Minnesota Department of Employment and Economic Development. This site aggregates employment information that can be sorted by industry and provides figures on useful items including current retail job vacancies.

Having an easy or hard time finding retail employees? Positivelyminnesota.com might help you understand why based on what is occurring in the marketplace, and even more important give you information to position your operation for success in hiring.

Here are some useful links to help you access Minnesota's labor market information:

Wondering what the state and national employment and unemployment trends are?
See a snapshot of theses numbers here.

See why it might be easy or difficult to find retail employees in your area.
Click here to search vacancy rates by location and industry here.

When is employment data released?
See a 2013 calendar of when data is scheduled to be release here.

Does DEED have other resources and report are available?
Visit this webpage to see available information.

Looking for other labor market data or trends? Contact MnRA at (651) 227-6631, or e-mail This email address is being protected from spambots. You need JavaScript enabled to view it. for information.

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