B&R Supermarket v. Visa

This website has been set up because the Court in charge of this lawsuit has certified this case as a class action and requires that this website inform members of the Class about the case. You were identified as a possible member of the Class. The Court in charge of this case is the United States District Court for the Eastern District of New York, and the case is called B&R Supermarket, Inc., et al. v. Visa, Inc., et al., Case No. 17-cv-02738.

The purpose of this website is to inform you about this lawsuit, the certification of the case as a class action, and your options of staying in the Class or asking to be excluded from the Class and the case.

The lawsuit is a class action, alleging that Defendants Visa, Mastercard, American Express, and Discover violated antitrust laws by illegally acting in concert in shifting the liability for certain fraudulent charges on their networks to merchants when the card is enabled with EMV/chip technology and the merchant's terminal is not enabled for EMV/chip technology.

Plaintiffs allege that the Defendants violated antitrust laws by entering into a conspiracy to (1) adopt the same policy via nearly identical rules for shifting billions of dollars in liability from banks to merchants (“Liability Shift” or “Fraud Liability Shift” or “FLS”) for fraudulent charges (“chargebacks”) and (2) make the Liability Shift effective in the same month and in the same manner for all four networks. The Defendants have denied the claims in this lawsuit and maintain that, even if the Defendants are found liable, the Plaintiffs and other members of the Class are not entitled to damages.

The Court has not decided whether the Defendants violated any laws. By allowing this case to proceed as a class action and Notice to be issued, the Court is not suggesting that Plaintiffs will win or lose.

Additional information about the claims and a copy of the Amended Complaint are available here.

In a class action, one or more people called class representatives (in this case, B&R Supermarket, Grove Liquors LLC, Strouk Group LLC, Palero Food Corp., and Cagueyes Food Corp.) sue on behalf of people who have similar claims. If the Court “certifies” the class (i.e., approves the case for class treatment), the Court resolves the issues for all class members except for those who “exclude” themselves from the class (otherwise known as “opting out” of the class and the class action).

Plaintiffs filed this action in March of 2016 in the Northern District of California. On July 15, 2016, Plaintiffs filed an Amended Complaint, which the Defendants moved to dismiss. On September 30, 2016, the Court in the Northern District of California granted in part and denied in part the motions to dismiss the Amended Complaint. The Court dismissed the claims against all Defendants other than Visa, Mastercard, Discover, and American Express. On May 4, 2017, the Court transferred the case to the federal District Court in the Eastern District of New York, where it is now pending. On August 28, 2020, the Court certified this lawsuit as a class action on behalf of eligible merchants.

The parties have engaged in Class-wide fact and expert discovery and recently concluded all discovery. The Court will soon set a schedule for further proceedings in the case, including for summary judgment and other motions, pretrial conference, and trial.

The Class Representatives are asking for money to compensate Class Members for damages they allege were caused by the Defendants’ conduct, as well as pre-judgment and post-judgment interest and their reasonable attorneys’ fees and costs.

You are a member of the Class if you are a merchant in the United States who incurred a chargeback on a credit or debit card transaction under the so-called EMV/chip technology Fraud Liability Shifts of Visa, Mastercard, Discover, and/or American Express; if the original transaction occurred between October 1, 2015, and September 30, 2017; and that chargeback was not reimbursed or absorbed by another entity. Excluded from the Class are members of the judiciary and government entities or agencies.

If you are unsure about whether you are a Class Member, you can get free help by calling or writing to the Plaintiffs’ lawyers in this case at the phone number and address listed below in FAQ 13.

You must decide whether to stay in the Class or opt out of the Class.

If you stay in the Class, you will be permitted to share in a recovery, if any, that may occur in this lawsuit. However, you will give up any rights to sue the Defendants separately for any claims based on the facts and conduct raised in this lawsuit. You also will be legally bound by all of the orders the Court issues and judgments the Court makes in this class action, even if there is no recovery.

You do not have to do anything to stay in the Class.

If you opt out of the Class (by stating in writing that you do not want to be in the Class in this lawsuit), you will give up the right to participate in any recovery that may occur. However, you will keep any rights you may currently have to sue the Defendants regarding the legal claims at issue in this lawsuit. You also will not be bound by the orders the Court issues and judgments the Court makes in this case.

If you are a merchant that does not want to be a member of the Class, you must send a written “Request to Opt Out” to the Litigation Administrator so it is received no later than August 31, 2022. Your written request must include the following:

• Your merchant name; address; taxpayer identification number; and telephone number or email address;
• That you are writing about this specific case with the case number, that is, B&R Supermarket, Inc., et al. v. Visa, Inc., et al., Case No. 17-cv-02738;
• A simple statement that you want to opt out, or not be a member of the Class;
• The business names, brand names, “doing business as” names, taxpayer identification number(s), and address of any store or sales location associated with the merchant that is opting out; and
• Your personal signature along with your printed name and title or position at the merchant that gives you authority to opt out the merchant.

Your request to opt out must be sent to the following address and received no later than August 31, 2022:

FLS Litigation Administrator
P.O. Box 6430
Portland, OR 97228-6430

If you have any questions, you may call 1-855-662-0073 toll-free. However, opt-outs or exclusions via telephone or email will not be effective. Opt-outs or exclusions executed by someone besides you or on your behalf will not be effective. You must personally sign the exclusion request.

By doing nothing, you are choosing to stay in the Class. If you stay in the Class and the Class obtains money or benefits, you will be notified about how to apply for a share. Regardless of whether the Plaintiffs win or lose at trial or whether they settle, you will not be able to sue or continue to sue the Defendants as part of any other lawsuit for any claims based on the facts and conduct raised by this lawsuit. You will also be legally bound by all of the orders the Court issues and judgments the Court makes in this lawsuit.

Yes. The Court has appointed lawyers to represent you and other Class Members. These lawyers are called Class Counsel. The Court has approved and appointed George C. Aguilar, Michael J. Nicoud, and Jacob Ogbozo and the law firm of Robbins LLP as Class Counsel. These lawyers are also assisted by John Devine of Devine Goodman & Rasco LLP and by Thomas G. Amon of the Law Offices of Thomas G. Amon.

If you have questions about the lawsuit, you may contact Class Counsel using the following information:

George C. Aguilar
Michael J. Nicoud
Jacob Ogbozo
Robbins LLP
5040 Shoreham Place
San Diego, CA 92122
1-619-525-3990 (Office)

If recovery is obtained for the Class, Class Counsel will request and apply to the Court for an award of attorneys’ fees and for the reimbursement of expenses for litigating the case. Class Counsel may also apply to the Court to approve a reasonable amount for the Class Representatives for their services in fulfilling their duties. These applications will be filed with the Court and will be available for review once filed on the Court’s docket for public electronic access. If approved, these fees and expenses and representative awards will be paid from the recovery obtained for the Class.

You do not need to hire your own lawyer because Class Counsel is working for you. You are welcome to hire your own lawyer at your expense. If you hire a lawyer to speak for you or to appear in Court, your lawyer must file a Notice of Appearance.

This website and the Notice are only a summary of this litigation. For additional information, you may review case-specific court documents on the Documents page or you may call the Litigation Administrator toll-free at 1-855-662-0073.

Please do not contact the Court. The Court cannot answer any questions or discuss the case.