Most Extensive Class Action Settlement Approval Contest in Canadian Class Action History

Mastercard retained McMillan for representation before the Canadian Competition Tribunal in connection with its “Honour All Cards” and “No Surcharge” rules. Mastercard and Visa were also sued in numerous class action lawsuits in Québec, Ontario, Saskatchewan, Alberta and British Columbia relating to the Mastercard and Visa interchange fees and rules.   

At issue were the interchange fees paid by merchants in connection with the acceptance of Visa and MasterCard credit cards as payment for goods or services. The claims were framed as breach of the Competition Act, R.S.C. 1985, c. C-34 civil conspiracy to injure, unjust enrichment, and waiver of tort. 

After extensive and successful interlocutory litigation, Mastercard entered into an advantageous settlement with an agreement to pay the sum of $19.5 million, in total, on a claim of US$5 billion. The settlements also involved a modification of the No Surcharge rule to permit some limited surcharging on their respective credit card transactions. 

Judges in each of the five provinces where class actions were commenced approved the settlements in 2018, despite vigorous objections by Wal-Mart and Home Depot. Wal-Mart and Home Depot then appealed the settlement approval Orders in British Columbia, Alberta, Saskatchewan, Ontario and Québec, which appeals were denied by the Courts of Appeal of all these provinces. Home Depot and Wal-Mart then brought applications for leave to appeal to the Supreme Court of Canada, which refused leave to appeal. The Courts of Appeal determined that while objections to the class action settlements have a right to be heard before courts determine whether to approve a settlement, as non-parties they do not have the right to appeal a decision approving settlement. 

McMillan’s national and multi-disciplinary team successfully represented Mastercard in connection with this novel case – the most extensive settlement approval contest in Canadian class action history. James Musgrove led the team with support from Jeffrey Simpson, David Kent, Eric Vallières, Sidney Elbaz, and Charlotte Conlin, among others.    

McMillan boasts Canada’s only integrated national Competition, Antitrust and Foreign Investment practice with partners in all five major economic centres: Toronto, Ottawa, Calgary and Vancouver. Competition lawyers in all the firm’s offices routinely work together on matters that draw on their technical, industry and practice expertise to meet client needs. Our lawyers deliver a complete range of services to clients seeking approval for their deals, defending conduct and the entire antirust area. We are active in mergers, cartels, class actions, competition policy advocacy, unilateral conduct, foreign investment review as well as defending companies facing allegations of anti‐competitive behaviour, obtain clearances under the Competition Act and the Investment Canada Act, support competitive strategies under advertising and marketing regulations, challenge or negotiate Competition Bureau investigations, develop risk management programs, conduct internal compliance audits, and advocate for reforms to the Competition Act and other public policies. McMillan is recognized internationally as having one of Canada’s leading competition law practices and one of the top 100 competition law practices in the world.