Adam J. Levitin of Georgetown has written Pandora's Digital Box: Digital Wallets and the Honor All Wallets Rules. Here's the abstract:
Digital wallets are poised to transform the world of retailing. These digital wallets, such as ApplePay and Android Pay, are “smart” payment devices that can integrate payments with two-way, real-time communications of any type of data. Integration of payments with real-time communications holds out tremendous promise for retailers: the combination in a single platform of search, advertising, payment, shipping, customer service, and loyalty programs. Such an integrated retail platform offers brick-and-mortar retailers a potentially superior ability to identify, attract, and retain customers, bringing eCommerce-type platforms into the brick-and-mortar environment.
At the same time, however, digital wallets present materially different risks for merchants than traditional plastic card payments precisely because of their “smart” nature. Digital wallets can reallocate flows of consumer data from merchants to financial institutions, depriving merchants of valuable customer information used for anti-fraud, advertising, loyalty, and customer service purposes. Digital wallets can also facilitate poaching of customers by competitors, impair merchants’ customer relationship management, deprive merchants of influence over tender choice and payment routing, increase fraud risk, subject merchants to patent infringement liability, and ultimately increase the costs of accepting payments.
All of this suggests that merchants would accept digital wallets only selectively, based on the overall package of risks and rewards offered by any particular wallet. Merchants, however, are highly constrained in their ability to refuse or condition payments from digital wallets because of “Honor All Wallets” rules promulgated by American Express, MasterCard, and Visa for merchants that accept payments with their network brands. The Honor All Wallets rules require merchants to accept all network-branded payments from any device that uses a communications technology accepted by the merchant — magnetic stripe, Near Field Communications, QR codes, Internet, etc. The Honor All Wallets rules thus tie acceptance of a card network’s payments via digital wallets to the acceptance of traditional plastic cards that use the same communications technologies. The Honor All Wallets rules force merchants to accept payments from all digital wallets utilizing a card network brand, irrespective of the wallet’s risks. Honor All Wallets presents merchants with a digital Pandora’s Box.
The Honor All Wallets rules also skew the competitive landscape for digital wallets. By preventing merchants from accepting only certain brands of payments from digital wallets, the Honor All Wallets rules foreclose entry to digital wallets that offer the most attractive valuation proposition for merchants — those that make low-cost PIN-debit and ACH payments. The Honor All Wallets rules thus artificially increase the market shares of the high-cost credit and signature debt products of American Express, MasterCard, and Visa in the payment card network services market. By facilitating consumer use of high-cost wallets, the Honor All Wallets rules ironically impede the adoption of digital wallets altogether. Accordingly, this Article argues that the Honor All Wallets rules should invite serious antitrust scrutiny.
