Restaurants Sue Heartland Payment Systems Over Flood of New Fees During Pandemic

A Fortune 100 payment processing company raked in millions of dollars in new fees charged to restaurants and bars during the pandemic, some of which weren’t even open at the time, a new class action lawsuit alleges.

Plaintiffs Black Ship, 33 Taps, and Hinoki the Bird — all restaurants or bars — filed the class action lawsuit against Heartland Payment Systems last Tuesday in a New Jersey federal court.

The businesses claim the payment card processor “dramatically increased” their monthly fees without consent or warning, and at their expense.

The trio say Heartland markets its credit and debit card processing services to small and medium-sized businesses by allegedly claiming its fees are fair and its billing practices are transparent.

“Heartland assures merchants it does not engage in a common industry practice: charging merchants hidden and confusing ‘junk’ fees,” they say.

“However, Heartland abandoned any semblance of honest or transparent billing practices by charging merchants extra fees and burying those charges within a labyrinthine of other charges in monthly statements.”

They say, by imposing new fees without required notice, Heartland “flagrantly disregarded” the promises and agreements it made to them and other merchants. They are suing for breach of contract, breach of good faith and fair dealing, violations of the New Jersey Consumer Fraud Act, and unjust enrichment.

The plaintiffs say, in July 2019, Heartland began charging a monthly $125 “PCI Non-Compliance Fee” that was not authorized by any former agreement.

Heartland assessed a PCI Fee on Black Ship for approximately $1,500, and a PCI fee on 33 Taps in December last year, even though the bar was closed at this time due to the pandemic and processed no transactions, they allege.

Heartland also allegedly started charging merchants a $69 “Reporting Fee” that was not authorized, a monthly $8.50 “Service & Regulatory Mandate” fee, a monthly $54.95 “Customer Intelligence Suite” fee, and two other transaction-based fees.

“Heartland charged these fees to its merchants, often amounting to hundreds or thousands of dollars of extra fees for each merchant each month,” the plaintiffs say.

“Each of these fees was unauthorized, violated Plaintiffs’ Agreement, and was imposed by Heartland without proper notice and without providing an Amended Schedule of Fees or an amended Merchant Processing Agreement.”

The class action lawsuit says, by charging its merchants these fees, Heartland increased its revenues by “tens or hundreds of millions of dollars,” violated its contracts with its merchants, and reneged on its representations to those merchants.

They’re looking to represent all Heartland customers who processed credit card or debit card transactions through Heartland at any time after 2018 and who were charged by Heartland a PCI Non-Compliance Fee, a Reporting Fee, a Service and Regulatory Mandate Fee, a Customer Intelligence Suite Fee, a Non-EMV Assessment Fee, and/or a Non-EMV Program Fee.

They’re seeking certification of the class, damages, an injunction, interest, fees, costs and a jury trial.

In 2010, Heartland paid a $4 million settlement to settle a class action lawsuit that alleged the payment-processing company was negligent and failed to adequately protect consumers’ personal financial information in a large criminal data breach.

Do you use Heartland Payment Systems? Let us know your experience in the comments!

The plaintiffs are represented by Olimpio Lee Squitieri of SQUITIERI & FEARON, LLP

The Heartland Payment Systems Class Action Lawsuit is Black Ship, et al., v. Heartland Payment Systems, Inc., Case No. 3:21-cv-13855, in the United States District Court District of New Jersey.

Worldpay charges, disclosed in fine print, anger small U.S. merchants

The first two times when he complained after noticing larger costs on his billing statement, the additional fees disappeared for a few months. Last August, he discovered Worldpay had added a 0.3% charge on top of an initial fee of 0.2% on many transactions, boosting his bill by hundreds of dollars.

“It has been so frustrating with them,” VenHuizen said.

In the course of several interviews and email exchanges over the past two months, Worldpay told Reuters it had notified VenHuizen in his June 2018 statement that fees for many transactions would increase by up to 0.8%. That happened for transactions such as when his customers made payments using cards that offer spending rewards like cashback and travel points. The company also referred to VenHuizen’s original agreement, where in fine print it says it may charge up to 1.95% for those types of transactions.

It said such markups are tied to risks and costs associated with individual businesses and depend on factors such as the type of merchant, how often it takes cards online, and whether the cards tend to have high credit limits.

“Worldpay’s fees are properly disclosed,” the company said.

Payment processors like Worldpay are a key part of the plumbing for everyday non-cash transactions such as credit and debit card swipes at grocery stores and restaurants. They gather transaction information and send it through the card networks such as Visa and Mastercard to the card issuers, which are typically banks. They also take on some risk as they vouch to card companies for the merchants’ ability to cover refunds on bad charges.

Processors were paid about $20 billion for their work in 2018, according to industry publication The Nilson Report.

Worldpay, the largest U.S. processor by transaction volume, was bought by Fidelity National Information Services Inc for $50 billion in a deal that closed on July 31.

In a statement sent this week to Reuters for this story, FIS said, “As part of the integration activities for our recent acquisition of Worldpay, we are currently reviewing Worldpay’s sales and billing practices to ensure they are fair and transparent.”

The company added, “We take any concern over unfair practices very seriously.”

Interviews with three merchants, several competitors and five former Worldpay salespeople, as well as a review of billing statements sent to more than a dozen merchants, show that Worldpay tells merchants upfront that it will collect two different kinds of fees on card transactions. Those are a fee for its own services, and charges levied by the card networks and issuers that it collects and passes on.

In fact, the processor adds a third fee for some small merchants that is disclosed in the fine print – a markup to the card network and issuer charges, these people said. In its billing statements, it mixes that markup with the card company charges and does not show the specific amount it has added, according to the people and the documents.

As a result, when small U.S. businesses, such as VenHuizen’s company, Jerry’s Marine Service, sign up with Worldpay, they at times end up paying hundreds of dollars more for the service than they realize, the billing statements show.

“It is very confusing to try to interpret one of these billing statements,” said Anthony Barnett, who owns two restaurants in the U.S. Northeast. “It is all in the fine print.”

Barnett said he switched processors earlier this year after Worldpay added a 0.65% markup to his statements for one restaurant and then offered to reduce his charges by roughly $2,700 a month when he complained.

Worldpay said it had not increased its rates for Barnett’s restaurant “in nearly two years.”

SALES PRACTICES
In contrast to Worldpay, JPMorgan Chase & Co’s payment processing unit, for example, said it separately discloses card company costs and its fees in statements to merchants in plans that compare with Worldpay’s. Square Inc offers flat rates that cover all charges.

Worldpay, which commented to Reuters before its sale to FIS closed, said that its statements and pricing were not “significantly different than industry practices.”

Worldpay declined to provide the number, or proportion, of its merchant customers who are assessed a markup. Nor would it quantify the additional revenue it brings.

Nearly 200,000 merchants were allegedly overcharged by the company for such markups or other extra fees, according to court documents filed in 2017 when Worldpay settled a lawsuit. The suit was brought by class action lawyers representing merchants who claimed the company had misled them.

Worldpay settled the lawsuit for $52 million. “While we believe we had meritorious defenses to the claims, we settled the matter two years ago to avoid potentially protracted and costly litigation,” the company told Reuters.

FIS said it was engaging a third party as part of its review of Worldpay’s practices. “We are committed to ensuring that any historic issues are addressed going forward,” it said.

Sales practices of the payments industry fall under the purview of the Federal Trade Commission, which is charged with preventing “unfair or deceptive acts or practices” in commerce. Two former agency lawyers said the agency expects consistent language in marketing and sales agreements.

But the FTC has brought only a handful of cases against processors over the past two decades, leaving practices largely unchallenged.

An FTC spokesman declined to comment.

DIFFERENT MARKUPS
Reuters reviewed monthly Worldpay billing statements with markups issued to more than a dozen small merchants between January 2018 and April 2019. Some were provided directly to Reuters by the merchants and others came through industry sources.

Those businesses were paying markups of at least 0.2% on many credit card transactions. A vitamin shop in Colorado was paying an extra 0.95% on many of its transactions. A dentist in Illinois was paying 1.85% more but a dentist in Alabama was being marked up 0.65%.

For each type of transaction, it took five calculations, including a reference to rates from complex card industry tables, to figure out how much the merchants were being charged extra.

“There is no way for a merchant to know what they are going to pay,” said Ben Dwyer, who writes about the industry and makes money selling processing services for selected Worldpay competitors.

In VenHuizen’s case, Worldpay removed information showing card company charges when it added its markup. In his July 2018 statement, the company had shown specific rates for what it was collecting on behalf of card companies. When Worldpay added its markups in August 2018, the rate disclosures disappeared from his statement.

Worldpay said it notified VenHuizen in advance and its charges were proper.

The five former salespeople, who worked at Worldpay until 2017, said they did not tell customers about the possibility of extra fees when they signed them up, in part because they had an incentive to close on sales quickly. Salespeople were expected to sign 60 to 80 new merchants each month, three of the sources said, and lower fees helped do that.

Worldpay told Reuters it does not offer low introductory rates to win customers.

Worldpay used pricing tables to include about 20 different levels of markups, three of the former salespeople said. The tables added markups in increments of 0.05% to 0.10% and topped out at an extra 1.85%, the three sources said.

Some customers, including ones who licensed sales software from important Worldpay business partners, were exempt from markups, two of the former salespeople said.

Wells Fargo joint venture sued over merchant credit card fees

NEW YORK, Aug 7 (Reuters) – A Wells Fargo Bank joint venture that provides credit card processing services to merchants across the country has been hit with a lawsuit accusing it of using misleading sales tactics and overbilling for its services.

Filed on Friday in Brooklyn federal court, the proposed class action said Wells Fargo Merchant Services promised merchants that it would give them transparent pricing but charged them unauthorized fees and disguised the fees with deceptive language in monthly statements.

A joint venture between Wells Fargo Bank and payment processor First Data Corp, Wells Fargo Merchant Services helps process credit and debit card purchases for businesses.

The lawsuit was filed on behalf of tour operator Queen City Tours in Charlotte, North Carolina, defunct Pennsylvania restaurant Patti’s Pitas, and other merchants across the country who say they were charged unauthorized fees by Wells Fargo Merchant Services. Hundreds of thousands of merchants were likely affected, the lawsuit said.

“Promises were made by aggressive sales tactics and then broken,” said Adam Webb, a lawyer for the merchants. The conduct goes back about six years, he said.

“We have been notified of this lawsuit and are currently in the process of evaluating it,” Wells Fargo spokeswoman Sara Hassell said.

First Data spokesman Mark Murphy declined to comment.

Wells Fargo has been grappling with a nationwide scandal over unauthorized accounts opened by employees in its consumer banking division and numerous lawsuits over its sales practices.

The third-largest U.S. bank last year agreed to pay a $185 million fine to the U.S. government to settle claims about the unauthorized accounts. On Friday, it said it would pay the government $108 million to settle allegations that it charged military veterans hidden fees to refinance mortgages.

The lawsuit regarding cards said Wells Fargo Merchant Services hit merchants with unanticipated or unauthorized fees, such as a $35 monthly minimum charge, after they signed three-year contracts that could be terminated only by paying a $500 penalty.

Wells Fargo buried some terms in a 63-page, fine-print guide that could never be read in its entirety or understood by a busy merchant, the lawsuit said.

Statements sent to merchants described some fees as “interchange charges,” indicating they were imposed by a credit card network, when in reality Wells Fargo Merchant Services kept part of those fees as profit, the lawsuit said.

The case is Patti’s Pitas et al v Wells Fargo Merchant Services, U.S. District Court, Eastern District of New York, No 17-cv-4583