Target agreed to pay issuers an amount over and above what they may already have coming from Visa for costs related to the retailer's huge 2013 data breach. However, some close to the deal aren't calling that a win.

The offer essentially supplemented Visa's Global Compromise Account Recovery program, or GCAR, which partially reimburses issuers for fraud and incremental operating expenses associated with breaches.

However, the program didn't cover compromised accounts that had debit transactions routed over non-Visa networks such as STAR, PULSE or NYCE.

According to a recording and transcript CU Times obtained of a call between Visa and card issuers, Target offered $2.50 for each of those eligible accounts — if issuers agreed to release the retailer and its financial partners from further legal claims related to the 2013 breach.

According to last week's call, issuers that don't want to take Target's offer, dubbed the Alternative Recovery Offer, will still get the full amount they're eligible for under the GCAR program. But they only have until Sept. 4 if they want the extra money and are willing to forgo legal action.

Unlike Target's $19 million proposed settlement with MasterCard issuers, which cratered in May and may soon involve a class-action suit, issuers representing a majority of breach-affected Visa cards have already entered into direct settlement agreements with Visa and Target.

In turn, there is no minimum percentage of issuers that must respond in order for the Visa settlement to become valid, creating something of a take-it-or-leave-it situation for credit unions and other issuers.

 

"I just want to be clear: there is nothing to celebrate," Visa Group Executive of North America Oliver Jenkyn said during the call. "There is nothing to be super happy about in this situation. We understand that GCAR is not the perfect solution to this situation. We recognize in these situations that no one is a winner. We heard loud and clear from several of our clients on the issuing side that this recovery amount is not close to what the financial implications were and what they incurred during this breach. Certainly, whenever we have these situations with merchants and their acquirers, they are not pleased with the amounts that they have to pay. So, everyone is unhappy with this outcome."

"If we're pleased about anything," Jenkyn added, "it's the opportunity to provide all of you on the phone with a choice to decide how you'd like to proceed and also with the ability to sort of put this behind as we continue to evolve into safer forms of payments and security so that we can avoid these situations in the future."

The Sept. 4 deadline was especially vexing to Charles Zimmerman and Karl Cambronne, who are co-lead counsel for financial institutions suing Target over the costs of the breach. A hearing to determine whether the suit will get class-action status is scheduled for Sept. 10.

"This eleventh-hour settlement is a clear attempt by Target to prevent financial institutions from recognizing the extent of Target's negligence and the strength of joining their claims against the retailer," they said. "It is no coincidence that Target set its deadline to accept the settlement just a few days before the class certification hearing, and in doing so, seeks to force financial institutions to waive their claims in this litigation and avoid accountability for the data breach. We strongly recommend that financial institutions not accept the optional Alternative Recovery Offers or sign any document containing a release against Target. Visa has assured financial institutions that they are entitled to receive GCAR benefits automatically without signing any release."

"Visa has worked to help Target reach a resolution for the expenses incurred by financial institutions as result of the 2013 compromise," Visa said in a statement. "Nevertheless, the fact remains that data breaches are an unfortunate situation for all parties involved — especially consumers. This agreement attempts to put this event behind us, and increase the industry's focus on protecting against future compromises with new technologies."

Issuers that take the offer will receive money starting in October, according to the call.

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