PEP Episode 014 — Visa’s Perspective on Surcharge Cap, Dual Pricing | James Huber Takes On Visa!
- November 8, 2023
James Huber, Partner of Global Legal Law Firm, asks the tough questions, and Visa has to answer!
Did you ever wonder what is the rationale behind Visa’s surcharge cap? You’re about to find out as James Huber is joined on stage by Rob Johnson, Visa’s chief rule creator, to take us behind the scenes of card payment industry. As we navigate the realms of cost acceptance, non-cash adjustment models and cash discounting, Rob illuminates the impact of the surcharge cap across various industries, and also clarifies the cost of PCI compliance. This conversation is not just about understanding the mechanics, it’s about gaining insights into Visa and MasterCard’s perception of the surcharge – a crucial aspect for anyone involved in the industry.
Now, let’s shift our focus to the nuances of dual pricing, and the inherent risks of non-compliance. With Rob’s expertise, we delve into the importance of transparent pricing for consumers and the penalties tied to non-compliance. He shares valuable insights on card payment rules, underscoring the need for merchants to foster excellent consumer experiences. As we progress, we’ll explore the legalities and requirements around surcharging and cash discounting – an aspect that often poses challenges to merchants.
Lastly, we tackle the complexities of dual pricing, consumer perception, and how this influences business practices. Rob reveals the liabilities associated with EMV readers and how menu pricing can become a potent marketing tool. Our conversation also unveils what drives compliance regulation, consumer complaints made to Visa, and the fear of losing card transactions. To top it off, Rob demystifies the realm of debit and credit card transactions, alternative routing rights, and the requirement to display card pricing – crucial knowledge for anyone in the trade. So, tune in for a comprehensive understanding of the card payment industry, straight from the expert’s mouth.
Since 2008, and based in San Diego, CA, Global Legal has represented clients across the nation, and internationally, in the world of electronic payments.
ISOs, Fintech, payfacs, agents, merchants, processors, acquiring banks, and card brands, if these terms mean something to you, this podcast is for you! If these terms aren’t so familiar, this podcast is even more for you!
We hope you enjoy this episode of the Payments Experts Podcast!
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Speaker 1 (00:00):
We have Rob, who’s here from Visa, and then apparently Rob wrote the memo on why there should be a surcharge cap. And I have assured Rob, and I’ve been assured that everyone’s weapons have been confiscated, so you’re going to have to holster those at the door. I actually want to turn it over to Rob because we’ve all been suffering for this, and Rob says that he has an explanation and a rationale for the surcharge cap, but collectively from the audience and on behalf of a ton of our clients, I want to ask Rob, what the fuck is my mic? Okay. Yeah. Tough crowd. Tough crowd.
Speaker 2 (00:59):
Welcome to the Payments Experts podcast, a podcast of global legal law firm ISOs, FinTech, pay fax agents, merchants, processors, acquiring banks and card brands. If these terms mean something to you, this podcast is for you. If these terms aren’t so familiar, this podcast is even more for you. We hope you enjoy this episode of pep, the Payments Experts podcast.
Speaker 1 (01:27):
Welcome. Thanks for everybody attending. We’ve got with us today, Adam Freeman from Bank Card transactions. Got Travis from NMA, got cabin from Coastal Pay, and then we have Rob who’s here from Visa. And then apparently Rob wrote the memo on why there should be a surcharge cap, and I have assured Rob, and I’ve been assured that everyone’s weapons have been confiscated, so you’re going to have to holster those at the door. There’s a lot of confusion about this. I actually want to turn it over to Rob because we’ve all been suffering for this, and Rob says that he has an explanation and a rationale for the surcharge cap, but collectively, as from the audience and on behalf of a ton of our clients, I want to ask Rob, what the fuck is my mic? Okay. Yeah, tough crowd. As you can tell from my accent, I’m from California, but yes, I actually can’t see these slides. There’s something different here. But what was the question? What is the explanation? Why put the surcharge cap in? Great.
Speaker 3 (03:00):
Well, the surcharge cap, so Visa allowed surcharging back in about 2010. At that point, we set a cap of 4%, which wasn’t published in the Visa rules. However, it is something that we have been holding our clients to. And what we became aware of, and it’s hard to talk about surcharge without also talking about cash discounting, and we saw a lot of these non-cash adjustment models, and there was no coincidence that many of these models that we saw were pitched at 3.99% or 4%, even though technically they weren’t following trying to follow the surcharge rule, they were trying to follow the cash discount rule. It was clear that they were being set at the surcharge cap, and essentially Visa did an analysis. We looked at the cost of acceptance, the acceptance piece that we control on, it’s change, and then General MDR, and we found that generally the cost acceptance was well below the 4% cap, and that 4% was being pitched as the price. And moreover, one of the things we saw is and observed that there’s a lot more price elasticity for a merchant in terms of the MDR that they’re paying, if they’re passing it onto the consumer. A merchant is not really worried about what the MDR if they’re not paying it. And so we saw many models pushing right up to that cap, and decision was made at Visa that not only should we reduce the cap to something that more accurately represents the cost of acceptance,
Speaker 3 (04:39):
But also that we would actually publish that percentage within the Visa rules, which now if you look at our Visa rules, it does clearly state for the US that the cap is now 3% in Canada, which allows surcharging from 4th of October last year. The cap is actually 2.4%. It’s even lower there, but the decision was made to try and regulate a little bit more formally. The pricing models that we’re seeing, and again, cash discount, I have to be honest, played a huge part in that. We saw many cash discount models that essentially claimed to the price had already been reduced, and therefore I as a merchant, I will remove that cap or remove that discount and essentially add a fee. And as you said, James, anytime one adds a fee to a transaction that is purely for card acceptance, it is a surcharge period. There’s no exception on that. It is a surcharge. And so the clarification around those rules was essential and a lowering of cap was deemed necessary by Visa. But
Speaker 1 (05:49):
Why cap it? I mean, if I am a merchant and I want to charge 20%, why not? Let me, my
Speaker 3 (05:56):
Understanding is that Visa doesn’t want everybody to know what you’re charging because we know in Europe charging what 400% less on interchange about.
Speaker 4 (06:09):
Yeah, if you look at the average cost of interchange throughout the world, it’s what half a 50 basis points in the United States, it’s 200 basis points. I mean, that’s kind of the thing that Visa, MasterCard, the card brands are trying to put the genie back in the bottle is what I think a lot of people’s viewpoint is. And I mean, what about interchange costs that are above 3%? There’s certain industries that the average ticket’s under $10, or if it’s B two B cards, interchange is going to be higher, but there’s also the cost of PCI compliance and those indirect costs,
Speaker 3 (06:49):
And there’s the margin for the ISOs because,
Speaker 4 (06:57):
And merchants will keep the rate in check. It does become a negotiation. Well, how much of the charges going to be passed on? That does happen, and I think that even hold the mic a little closer. Sure. I think that there hasn’t been a huge adoption by big retailers of surcharge, I imagine visa, MasterCard, thank goodness that big retailers haven’t began to surcharge. So I think it’s making a bit of guff over not too much. It’s going to eventually backfire and you guys are teeing yourselves up for litigation.
Speaker 3 (07:41):
Well, I mean, if I can respond, we had a presentation this morning, ETH, and I’m actually going to be at the ETA compliance conference in DC next week talking about this. Again, hopefully a smaller crowd, but there is a lot of concern right now in the public and in the government about pricing and what do they characterize it as? Nickel and dimming and adding fees, junk fees. Fees, thank you. And I think my personal observation was some of these rates being pitched at 4%, 4%. MDR to a merchant was not necessarily representative of the cost of acceptance. I think it was more representative of an opportunity in some instances to expand the margin of profitability on that transaction. And again, going back to the merchant, the merchant is less interested, less focused on the level of MDR if they’re passing it on. And I should add, there is a piece here where we’re all in the business of card payments.
Speaker 3 (08:49):
We’re all vested in seeing a customer use their card. And I understand how some of these cash discount models became a merchant acquisition tool because if that merchant is taking 80% card and 20% cash, but they’re not your merchant, and you can bring them on with a cash discount model, albeit say at 4% and their card cash mix drops to 60%. If they’re a new merchant, you’ve still got 60%, you had nothing before. But the higher these fees get, the more likely, and we’ve observed this in the market, the more likely it’s that the customer will either switch to cash or not go back to that store. And guess what? When they switch to cash, no one in this room makes any money. None of us are profitable. That’s a decent point. I don’t really buy it though because I
Speaker 5 (09:40):
Mean I never use
Speaker 3 (09:41):
Speaker 5 (09:46):
I’m going to jump in and I’m going to come to Rob’s defense a little bit. So how many, we’ve got a big crowd, so I’m assuming everyone, right? So how many people are selling on a cash discount model right now? Rich show of hands, not a lot, which is kind of surprising. The more rad one to me. What about surcharge? So
Speaker 3 (10:07):
Wow, so everybody’s just batted. Oh wow. You
Speaker 5 (10:12):
Guys are all just casual observers. You’re not even selling it. Okay, cool. So listen, happy consumers, make happy merchants, happy merchants, make a happy industry. All of those things. Keep this guy and his buddies off of our back, right? So let’s start at the very beginning when we’re talking about the sales, as Robert mentioned, using these as particular sales models for your sales efforts. If you’re going into, let’s say a bakery 50 year bakery, you’re going in, you’re selling it. If you’re not asking the right questions, if you’re not understanding the merchant’s business, if you’re not understanding their consumer, how do they pay? Are they paying with debit? Are they paying with credit? Are they paying with cash? Are they used to surcharging? Are you going to be the only surcharging? Is this going to be the only surcharge merchant in the entire neighborhood? I can tell you if that’s the case, the next day after you roll out and you deploy, you’re going to have a whole lot of pissed off customers, which is going to be a pissed off merchant wondering why all their customer scores are down because you didn’t do proper research.
Speaker 5 (11:15):
But at the same time, if you’re entering into this as a sales model and you’re saying this is no cost processing, which that’s a popular one out there, no cost processing, but you didn’t do your research and this bakery is primarily accepting debit or credit or credit as debit, guess what? Now the bakery owner’s pissed off at you too, because I thought I had no cost processing. So it’s very, very important for us out there on the streets that are selling it to understand what we’re selling and to position it correctly because as I said, happy customers make happy merchants make happy industry. And if we’re not starting off on the right foot, you better believe that Robert and everyone else is going to be breathing down our neck when the goal should be for us to find the ways that we can sell this in a compliant fashion and a way that makes a consumer happy and makes a merchant happy so that we can, instead of being focusing on what visa’s doing, we can focus on why surcharges in 50 state legal. We need to get it 50 state legal first, get it compliant, and then figure out what we can do to make Visa happy and everyone else so that we don’t have to worry about another rate reduction.
Speaker 1 (12:21):
So I know a bunch of merchants are getting fined on this, and so let’s say I
Speaker 5 (12:30):
Speaker 1 (12:31):
My retail shop selling different kinds of candy bars and Skittles and cabin’s. ISO is gouging me at 6% and I want to charge more that make that 6% back. My only way to do that is cash discount and I have to label each one side by side and a bag of Skittles changes every six months.
Speaker 5 (12:55):
Speaker 1 (12:56):
That I buy Skittles all the time, but I do. So I’m going to have a hundred different labels that I’m having to do all the time. What’s the rationale of that?
Speaker 3 (13:07):
So the reality is you don’t. We’ve now moved into this model of dual pricing, and I was walking around the auditorium yesterday and I was really thrilled to see so many ISOs and other folks are advertising dual pricing models. But the reality is you don’t have to do dual pricing. You just have to ensure that the price the cardholder sees is the price they pay with the card. If you’re going to increase it, it’s a surcharge. And I did want to just, I was going to say at the start when we first spoke, I mentioned the title of this saying, this segment saying surcharging and cash discounting is in jeopardy. I want to be absolutely clear it is not in jeopardy. We are not going to take away your ability to surcharge or do cash discounting. That is not on the table. However, what is in jeopardy is the ability to do it incorrectly.
Speaker 3 (13:55):
And we mentioned my audit. The audit is ongoing. I’ve just funded it for next year. We are seeing merchants. If we audit your merchant and they fail, we send a notification to your acquirer. We also tell the acquirer We’re coming back. We will validate that this merchant is doing this correctly. We are now on, we call it R three, which is round three of the redi of the audits. And we’re still seeing 40% failure rates. And I’ll give you an example. During the week last week, one of my team came to me and it was a surcharge on debit. We raised the compliance case. The explanation that was passed to us by the acquirer from the ISO and even the acquirer was, I could tell from the tone of their email, they were a little bit suspicious. They said, this is a fraud and risk fee of 4% that’s charged to every purchase at this merchant, every purchase.
Speaker 3 (14:54):
The merchant was a pizza restaurant. So I called the pizza restaurant and I spoke to the owner. His name was on the business, he answered the phone, I confirmed that, and he said to me, oh, I’m sorry, the language, the response said, and we know it’s okay to apply a fee if it applies to every payment method, which it is, absolutely. I spoke to the owner and I said, do you apply this to cash? And he said, no, absolutely not. It’s only for card. So the response we had to that case, we use my words carefully, was disingenuous at best. We have had, we talked about pricing, we’ve had compliance cases. The response, it was a donut shop, and we were sent back the pricing board, a photo of the pricing board with all the card prices on that. There were curious prices like an eclair was $1 57, a classic donut was $1 4 cents strange prices, but they had put it on a table in the restaurant, changed the prices, taken a photo, scrubbed them out.
Speaker 3 (16:01):
It was a chalkboard, scrubbed them out, changed them back to the cash prices, hung them back on the wall. Our audit went back, same price as on the wall, not the car prices anymore. So there’s a lot of games going on in the industry right now. We’re evolving our audit, so doing it incorrectly is not an option, but I want to be absolutely clear, your ability to offer a cash discount, your ability to surcharge will remain. We have no intention of changing that. We are just going to make sure it’s done properly. And if he wants to do cash discounting properly, and you don’t want to do dual pricing, because I understand the risk or the effort of having dual pricing on every item, then have the merchant post the cash price. And why I find it, I get it’s difficult for a convenience store.
Speaker 3 (16:41):
Where I find it really frustrating is restaurants who print their menus every day, and I’m sure we’ve all been in restaurants where they’ve added on a covid recovery fee or a health ordinance fee. And I just think just increase your prices. You print this menu every week or every day, increase your prices, don’t nickel and dime me. You’re going to ask for, we know now they want minimum 20% tip 20%, 22 and a half, 25%. Every time I get one of those covid recovery fees or something like that, one of these nickel and dime things, I just reduce my tip by that amount, whatever it is. I know that sounds mean, but that’s change the prices to what the customer sees.
Speaker 1 (17:19):
How much did that pizza place get fined?
Speaker 3 (17:22):
Well, so I want to be clear. We find the acquirer, we don’t find the restaurant, but recommended to push it
Speaker 1 (17:27):
Speaker 3 (17:28):
Her. It was the first offense, it was a consumer complaint. So there was an initial thousand dollars fine because it was a valid surcharge or valid violation of our surcharge rules. And because the response was to say not exactly accurate, we moved immediately to the next fine of 5,000 bucks. And again, so here’s the other thing, and I’ve made this point several times. Your pizza restaurant, that guy needs to be focusing on making pizzas. He doesn’t need to be a card payment expert. His job is to make really good pizzas. And I tell, I looked at the LP reviews, he had great pizzas, but we are all card payment professionals. It is our job. We have a juicy of care to not create compliance traps for our merchants. They should not have to be an expert in card payment rules, but we all should be. And I published a memo, a Visa business news article October 18th, 2018 about cash discounting, and it went into detail about how not to do cash discounting. And I would tell you the reason we are where we are is because that memo was largely ignored. These non-cash adjustment models came out, got rolled out. My team gets thousands of complaints a year, and we decided we needed to take a stronger approach writing another VBN reminding people not to do it was not enough.
Speaker 1 (18:52):
Is it you’re enforcing it to make sure people are doing it.
Speaker 3 (18:55):
Speaker 1 (18:56):
Speaker 3 (18:56):
We are dedicated to transparent consumer pricing.
Speaker 1 (19:00):
Well, I mean my issue with it that I hear a lot of complaints is it’s just too difficult to do this and people are going, I’m just not going to do it. Was that the goal just to get people to stop because it’s nice that you say,
Speaker 3 (19:15):
Speaker 1 (19:16):
We’re going to allow you do it. Well, you actually agreed that you would do this in the interchange settlement, so thank you for the gift, but this was negotiated, but is the goal to basically back out of that and get rid of this?
Speaker 3 (19:32):
No, I mean I can only talk about now and the stuff I’m involved in. We need to reiterate what I said earlier. We have no at this point, and I’m just going to say at this point, but I do not know any reason or conversation for us to want to change this tack. Any intention to remove one’s ability to surcharge or do a cash discount as say they’re not in jeopardy, but doing them incorrectly is in jeopardy?
Speaker 6 (19:59):
Well, even with the dual pricing model here, it’s real totally impossible to say, get a merchant to get compliant or to get ’em to agree to be compliant. I mean, the best we can do is program the equipment. The best we can do is program the equipment, the terminals to make sure it is compliant in that fashion. But can we really force a merchant to really go in and change the labels of every single skew that they have within their store or anything along those lines? Really getting the merchant to actually do that is not feasible. We’re card favor professionals. We’re not going in there to change their entire store. And as you said, you don’t find the merchants, so they don’t really care. You’re finding us the acquirers or you’re finding us the product processors and anything else. So we’re the ones who take the hit, which means dual pricing just becomes a risky program for anyone to sell because of the fact that we’re the ones who get punished when the merchants don’t change their SKUs. And it’s really hard if someone has say 2000 SKUs and we’re saying, I need you to go out there and change every single label.
Speaker 3 (20:58):
Yeah, I totally understand that. It’s difficult. It’s difficult. But I understand this is a merchant acquisition strategy, and I would say we’ve always had merchant surcharging on debit in states that don’t allow it. And by the way, just getting this out there, it is still not legal In Oklahoma. I get that email, that question probably three times a month. The law was never changed without surcharging Oklahoma. So it’s still Connecticut. Oklahoma, Maine and Massachusetts have statutes on their books, no surcharge.
Speaker 4 (21:32):
But what about the Durban Amendment? Isn’t that where it all is derived from? Is that a cash discount, which is now mandated that businesses are allowed to offer a cash discount? So it’s not like the brands are letting people do a cash discount. There’s a law that allows for it. A
Speaker 3 (21:52):
Urban amendment were legally obliged,
Speaker 4 (21:53):
And then that wasn’t that interpreted, that the freedom of speech, the First Amendment would allow you to offer dual pricing or tack on a percentage. And I believe in all of the five court cases and including the expression one in New York, it was interpreted that they’re one and the same. You’re just regulating how that merchant describes that there’s a cost associated with it. Taking cards.
Speaker 3 (22:24):
That’s true. I’m not a lawyer like James, but my legal group who I work with a lot, and this year more than ever, I have been quite unequivocal to me that surcharging is still not permitted in those states, but cash discounting is permitted anywhere. And I would tell you the advantage of cash discounting is obviously there’s no restriction on debit and there’s no restriction on the percentage. So go ahead, cash discount, be my guest. It’s totally acceptable, but you have to do it properly, you to see the consumer has to see the card price. I want to put this slide up because this is the one that you wrote, if we can get that one up there. This one says that a cash discount must display the card price on the shelf and then reduce it at the register. So are you saying that I don’t necessarily have to do a price?
Speaker 3 (23:16):
Correct, yeah. If I walk into a store and I pick up this jug and it’s $20 and my wife was buying it, me 2000, but I pick that up, I take it to the register and it’s still $20 when I pull out my card, but they offer me an incentive 18 to pay cash, absolutely fine. No issue with that. You do not have to have dual pricing. Dual pricing has been around for a long time. Go to any petrol station in the us, they will have a card and a cash price. No issue with that. But you don’t have to do dual pricing, you just need to display card pricing.
Speaker 4 (23:50):
And then all you
Speaker 3 (23:52):
Speaker 4 (23:54):
Speaker 3 (23:55):
Speaker 4 (23:55):
Signage is that I just have that at the register and I’m good.
Speaker 3 (23:59):
So that’s for surcharging, it’s register point of entry. So point of acceptance, point of entry. There are several other requirements for surcharging. Surcharging is definitely more complicated. Obviously no credit, sorry, no debit. You have state restrictions. You have to have signage. It has to be displayed on the transaction receipt. You have to populate field 28 in the visa transaction record with the surcharge amount. So if you’re going to do surcharging, it is more complicated. You need to use bin tables. You cannot ask a merchant to ask a cardholder if they’re using a debit or a credit card. As many of us know in the industry, credit card is a euphemism for anything that says Visa, MasterCard, amex, or Discover. We know there’s a difference in product, but Joe Public generally doesn’t. So asking them whether using a debit card or a credit card is never a good idea.
Speaker 3 (24:57):
You may not get an inaccurate answer. And then your complaint creating a compliance trap. Also, you can’t rely on the merchant to look at the card. I know I just got back from England. I made every single transaction using this, every single transaction. So the merchant never at any point saw my card. So bin tables were essential. Bin blocks are essential. Sorry, state blocks are highly advised, if not essential. And then obviously a systematic cap at 3%. So the merchant doesn’t go above that. And again, if you don’t have those technologies in place in your surcharge solution, you are creating a compliance trap for your merchant. And I would tell you just based on the observation, my team fields about 6,000 complaints from US consumers a year, which is more than the rest of the other compliance teams around. I only manage North America, but it is half of Visa’s volume, but that’s more than the rest of the world combined. So that tells me two things. We have some issues either Americans consumers are really good at complaining or which they are, but secondly, we have a significant number of issues in the us, these models being
Speaker 6 (26:13):
Or to Adam’s point, we have the highest interchange table in the country, right?
Speaker 4 (26:17):
Speaker 6 (26:17):
We’re just responding accordingly just based on our actual costs on interchange.
Speaker 4 (26:23):
Well, and then why not debit cards? I mean, where did that come from?
Speaker 3 (26:28):
Yeah, so part D, yeah,
Speaker 4 (26:30):
Just said, well, okay, well we’ll give you this, but we’ll take away debit cards. How do you like that?
Speaker 3 (26:34):
So part of the settlement that we made in, I think it’s largely known as the Walmart settlement, Walmart where leading the charge on that
Speaker 4 (26:41):
Speaker 3 (26:42):
Part of that was that we would reduce significantly interchange on debit transactions. So debit transactions are generally for fixed amount
Speaker 4 (26:52):
Regulated banks? Correct? Small
Speaker 3 (26:54):
Fixed amount, and then a tiny avalor.
Speaker 4 (26:56):
It is lower. It is lower than credit card interchange, but it still can be one to one point a half percent depending on the average ticket. I mean, but
Speaker 3 (27:05):
Let’s be clear, if you talk to a large merchant, you will see that many of them, and I appreciate larger merchants have a lot more negotiating power, but a large merchant will generally benefit from lower interchange on debit. They will see that past. Sure.
Speaker 4 (27:20):
Speaker 3 (27:20):
I look at, when I see a lot of merchants and I see what they’re paying, they’re paying a blended rate, they’re not seeing that interchange benefit that we agreed to in that assessment. They’re paying two and a half, 3%, sometimes 4%, whatever it is on every transaction irrespective of product.
Speaker 4 (27:41):
There’s plenty that
Speaker 3 (27:42):
Speaker 4 (27:43):
Plenty of competition out there that they’ll come in and price it interchange plus. So I mean it’ll eventually trickle through. But yeah, I just think that or there’s the viewpoint out there that debit. It seems a little bit unfair that you can’t charge for that or I don’t know, can you charge a flat fee or is it just interlink? You cannot. But the rest of the debit networks, you can’t charge a fee.
Speaker 3 (28:10):
Any additional fee for card based purely on card acceptance and is applied to a debit card is technically a violation of ours. And again, just for visa? Pardon?
Speaker 4 (28:23):
Just visa and interlink.
Speaker 3 (28:26):
I can’t speak to the other networks, but I would imagine that MasterCard is the same. They were part of the same settlement with us. I don’t think Amex was,
Speaker 4 (28:36):
MasterCard is still at 4%. And so that’s a little bit strange too. And then I believe all the other debit networks, you can still charge a transaction fee if you go to the Arco station still. They were charging a,
Speaker 3 (28:50):
Speaker 4 (28:51):
Speaker 3 (28:52):
They were grandfathered in from the eighties apparently. So they are definitely an outlier, but I will say feel free to surcharge MasterCard way more than Visa. I’m fine with that.
Speaker 1 (29:04):
Somebody asked me a really good question and then there’s a mic here if people want to come ask questions, but somebody asked me A good one is when I have recurring billing or I’m doing installment payments, I can’t surcharge that at all.
Speaker 3 (29:18):
So what you can’t do on recurring is a convenience fee. That’s where our rules, so there are two other fees in the Visa rules you have. So we allow surcharging and the very specific circumstances, but we allow service fees, which are for government and education.
Speaker 3 (29:35):
I don’t know if anyone who’s, I live in California because I can only speak the California experience every time I register a car in California and pay my annual registration, if I want to pay a card, they charge me a service fee. Only about I registered one yesterday. Service fee on any product, convenience fees are permissible, but it has to be a merchant that doesn’t operate entirely in the card. Absent environment, it can be, it’s an ad valorem fee. So it’s a percentage where a service fee is fixed and, oh, sorry, it’s the opposite way. It has to be a fixed fee, not an avalor fee as a convenience fee, but we also do not allow ’em on recurring transactions. The idea behind the convenience fee was to essentially offset the cost of the channel. And the way I think about it, the best example I can think of, if I want to go and see a cricket match, I can buy the ticket online and pay a convenience fee.
Speaker 3 (30:35):
It’s really convenient. But if I want to avoid that fee, I could travel to the stadium and buy the ticket in person and not pay the fee less convenient. So that’s the purpose of the convenience fee. We do see it broadly get, not broadly, but we do see several instances of being misused. But certainly at this point in time, convenience fee is not permitted on occurring. No reason why the consumer should be playing for the platform for a recurring transaction where they’re not even engaging at that point. They’re not going to the website to pay a recurring transaction. It’s recurring. It’s coming out automatically. What’s the question
Speaker 7 (31:07):
We’ve got? So the question that I have for you is about the marketability of this dual pricing cash discount. You see in multiple retailers per se, or let’s say even in a restaurant setting where there are variants of a specific item and they market their lowest available price to the consumer regardless of whatever variant they’re buying, you can buy this product as low as whatever the price is, 3 99. When you’re saying, I have to market my highest price, even as a tender type, it’s kind of limiting the business’s ability to market their lowest available price and to stay competitive with everybody else. It’s because it’s also what you’re doing when you’re chiming into the margins for ISOs and the savings opportunity for businesses. It’s not just a merchant acquiring program, it’s a resource reallocation for businesses. It’s investment into the products that a lot of the vendors on the floor, they came from ISOs, they’re reinvesting the money into products that are bettering your products. I’m wondering why visa’s taking rules or making rules for the marketability of a price?
Speaker 3 (32:24):
Well, I think it’s a great question. The intent of assessing the fee is clearly to recover the cost of acceptance. When I go to a business, again, I can speak to California, our utility bills have gone up massively this year over the last couple of years, and I’m sure it’s the same across many of the states. I don’t go to a restaurant or a merchant and find the madding on a fee because they’re paying their electricity bill for the businesses doubled this year. We see the cost of acceptance as another factor of being in business. And again, we are dedicated to transparent consumer pricing. So I understand the merchant may not want to increase their costs to cover the cost of acceptance, but realistically, if they are going to add a single fee on top of that transaction, then it is a surcharge. And I appreciate that.
Speaker 3 (33:28):
It’s not an easy solution. We talked about having the merchant needing to increase their prices. Absolutely. That’s not easy. Again, it aggravates me when a restaurant does it, when they give me a paper menu, they print it that day. There’s no reason for them not to increase their prices. But it’s harder of a small business. But I’m afraid to be compliant with the rules and to deliver transparent pricing to the consumer. That is what needs to be done. But I know it’s not easy for you, but we’re all in the business of trying to facilitate car payments and trying to make money, make our businesses do well. We want to be a partner to you guys. And I know that might sound challenging and contrary to the activities that my team has undertaken over the last couple of years, but I want to be clear, the market got itself to this position and why that, I mean, our rules stated what was required. I published an article stating how to do it, and it was ignored, and that’s why we ended up where we are on the freight.
Speaker 5 (34:35):
So as a marketer in a previous life, and to piggyback off of what was a great question, let me just clarify this then. So the marketed price, the advertised price, is there any leeway for asterisks or fine print and a marketing stamp? If I had a billboard that said burgers as low as 99 cents, but when you get to the restaurant, the menu board is displayed correctly. They’re using the right POS system that has dual pricing listed. If they choose, that’s permissible. Correct?
Speaker 3 (35:06):
Speaker 5 (35:07):
Speaker 3 (35:08):
What we’re focused on is the price the consumer sees when they’re making a purchase, when they’re ordering the food, when they’re picking the item off the shelf. That’s the price we’re focusing on. Not anything outside of that space,
Speaker 5 (35:19):
Which I think is more in line with what your question was. How do the merchants market, how do they advertise with a good flashy rate? If what it seemed like was that the language was so rigid that they couldn’t do that, but it sounds like from what Rob is
Speaker 4 (35:37):
That in a marketing position
Speaker 6 (35:39):
Speaker 4 (35:40):
An advertising position, you can do that, but once they darken the doorstep and they see the listed price on the menu board or they see it on the price tag, it would need to be the card price.
Speaker 6 (35:51):
And if I could chime in there, I mean, what about say since you have signs up to state whether there’s going to be a surcharge, why can’t there be a sign saying all prices listed are cash price. Please see card price at the register.
Speaker 3 (36:05):
So that’s a great point, and I had a conversation with a couple of companies yesterday in the hall. I know there’s a shift to these dual pricing models where the POS will show both the card and the cash price. You have to be really clear, and I made this clear yesterday, but I do want to be really, since we’ve got the audience here, the consumer needs to see that price throughout. If they see a different price, if they pick an item off the shelf and it says a dollar, and when they get to the cash register, it says a dollar cash, a dollar 5 cents card, that’s still a surcharge. And you’re not following the cash discounting rules because the customer is still seeing a price that is not the card price go. That additional fee is a surcharge and will be treated as such.
Speaker 4 (36:50):
Well, there’s been an argument that the only expression of price can really be in dollars because that’s legal tender
Speaker 3 (37:00):
In the us
Speaker 4 (37:01):
And that credit cards and debit cards are really a derivative of legal tender. It’s even been made, I think in arguments before where there was surcharges that wanted to be passed along, and that was the argument used is that legal tender still is our dollars. So for instance, if someone wanted to pay in Bitcoin and someone came to you and the price was a hundred dollars and dollars but wanted to pay in Bitcoin, there would be a conversion cost. I think that’s a fair analogy. And credit cards are the same thing. There’s strings attached to that transaction. There’s six months of recourse that
Speaker 3 (37:52):
Speaker 4 (37:52):
Could have. There’s other things,
Speaker 3 (37:54):
And I think that’s a really valid point. I think one of the things that as a market we tended, I don’t think we’ve forgotten it, I just don’t think we shared this message enough, which is there is a huge, and I’m not really talking about convenience stores, but try and go to Costco or Walmart and do a big shop and just carry cash. We see average higher ticket values with card transactions. We’re not seeing the merchant. No one’s going to burst into that convenience store of a gun and say, hand over all your Visa transaction receipts. They’re not going to do that. They want the cash. There’s less risk. The person working behind the register is not going to be pocketing the visa receipts. They’re going to be taking the cash. There’s a huge amount of benefits to card acceptance that I think we’ve failed to promote.
Speaker 3 (38:49):
And so yes, there’s a cost to card acceptance, but there’s also a significant number of benefits. There is a dispute risk. But I wrote another rule, EMV liability shift. I first designed that in 2001 when I joined visa. Labor laws are very different in Europe. I was seven at the time, but I wrote that liability shift. I brought it across the us. And now, because most transactions atv, you’re the one who came up with the liability. Yep. Wow. We can talk about that next, but my point being is there are virtually no dispute rights for card present transaction stake if you have an MV reader and it’s an EMV card. Well, in fact, if you have an EMV reader, you are protected from pretty much any dispute. So card absent, it’s different, but card present, there are virtually no risks for the merchant in terms of later recourse. Let’s see what other questions we have.
Speaker 8 (39:47):
Yeah, we’re going, I’m going to ask that everybody just do one question real quick so we can wrap fire. We got a lot of people waiting in line. I don’t have a question
Speaker 7 (39:57):
So much as just to finish the conversation on marketability of prices, oftentimes the menu is the marketing. I mean, if you look at Fiserv’s acquisition of Bento box that’s rolled out now, the menu is a huge part of the website, and I think they said 90% of users that are using that go into restaurants and purchase or go into a restaurant. They first do research online. And so the menu is the marketing. So if I can’t put some verbiage at the bottom that says all prices reflect our cash price or something like that, that is injuring the marketability because I can’t put 1299, I’m going to put 1337 or whatever it comes out to. Why
Speaker 3 (40:48):
Not? Why not put the card price, it’s smoke and mirrors to claim this is the price and then hoodwink the card holder at the point of sale or at the table to say, oh, actually, oh, you’re paying the card. Sorry, now we’re going to charge more. Again, we allow that with surcharging, but the cash discounting models claiming that, oh wait, it was already discounted. It’s an unfair consumer model. It’s not transparent pricing. And I think it damages all of our businesses by promoting prices in that way. Consumers don’t like it. They’re pushing back. Feds are starting to look at junk fees. These are in their sites. The more we do this, the more we, we increase our likelihood of further regulation, which is going to business harder for
Speaker 9 (41:34):
Speaker 10 (41:34):
Speaker 9 (41:35):
Hello, my name is Anil Deza. I’m getting guests from the Arco who supplied by the Speedway and they’re charging that credit card and the debit card. The price is the same without any increase in the debit fees or decrease in the credit card. And the price is the same unfortunately across the street. The other gas station, they have to match the credit card and they have to reduce their debit per fee. Why it is difference between the two?
Speaker 5 (42:01):
Well, I mean, it sounds like exactly what Rob said earlier. A lot of this regulation comes from the misdeeds of people that are deploying these devices. So we can all sit in this room and we can be upset about what Visa does or what maybe MasterCard does one day or what Amex does one day. But at the end of the day, it’s somebody in this room or one of our peers that’s deploying these devices with pricing that’s incorrect or letting the merchants believe that it’s okay to do it and then not checking them. So again, if we want to stay out of this happy consumers, make happy merchants, make happy industry, it’s got to start there. And if a consumer doesn’t even understand how they’re being billed and they’re going here and here and here, and it’s always one different thing or the other, it might not have been the same person that deployed all those merchants, but we need to be looking at each other and going like, Hey, thanks a lot, guy.
Speaker 5 (42:50):
You really muddied it up by the way that you deployed that and I don’t appreciate it. So there’s a lot of focus that we can put on us as an industry on knowing our customer, on knowing our customer’s consumer and educating them and deploying these things properly as to why you’re being billed the way that you’re being billed. I wish I could tell you, I mean Rob may or may or may not know, but it sounds like people are just doing things that are a little bit outside the lines and you just got two kind of wild examples. Yeah, I agree.
Speaker 11 (43:21):
Next question. Hi, my name is Oscar. At the beginning when all of this came about cash discounting surcharging, our office specifically, we were selling our merchants against it. We were telling them they were going to lose business, people were going to go somewhere else, and some of our merchants basically threatened us to put ’em on this program or they were going to switch their competitors. What we found in the majority of our customers is that their processing models didn’t change with cash discounting, surcharging or whatever, their ratio of cash to credit debit plastic didn’t change. So my question to you is, is it just the fear of losing car transactions or is it the consumer complaints that’s driving your compliance regulation? And if it’s consumer complaints, you said you had 6,000 complaints out of how many card holders.
Speaker 9 (44:27):
So I would argue
Speaker 10 (44:28):
Speaker 9 (44:29):
Speaker 3 (44:29):
Country as large as the US is what, 350 million people now? I think that 6,000 people choosing to go to Visa to complain about something is a lot. And I would argue is the tip of the iceberg. How many of you guys have been surcharged or had a bad cash desk discounting experience? I was talking to some friends who live nearby earlier, and they said, it happens to us all the time, but they know I work for Visa. They’ve never once written to me and said, are they allowed to do this? So 6,000 complaints is a tip of the iceberg. And again, I have to go back to the point that if that’s what these models are creating, this angst in the market, and in fact the angst is way bigger than what we’re seeing
Speaker 3 (45:21):
The regulatory risks on our business increase. And I don’t think anyone wants to see that happen. I tend to disagree. I mean, we’re law firms, we love regulation, but it’s nice to have the rails of where to do this. I mean, even with the discounting and the surcharge, there’s still so much confusion. I mean, I was confused. You had to rewrite my slides. So it’s nice there with 19% accurate. Yeah. All right. So it’d be nice to have actually some set rails. My guess is that Visa’s scared of regulation going, why are you guys charging so much money? I mean,
Speaker 4 (46:07):
But aren’t there already set rails with all of the court cases and the law that No,
Speaker 3 (46:11):
That’s doing it through I am the Keystone cop making the regulation by suing everybody. No, we should have set rules so that it’s not a moving target all the time. Well, I mean, we do have rules today. They’ve been in the Visa rule book, which my team publishes as well. They’ve been in the rule book for over a decade. We haven’t touched them in any significant way beyond the the reduction of the cap. And by the way, at the same point, I do want to point out in that same paper, I removed the requirement for the merchant to tell Visa 30 days before starting surcharging. So that requirement went away. Thank you. So we no longer require merchants to register with us in advance, and we didn’t do anything with that data apart from just analyzing deterrent,
Speaker 4 (47:04):
It was more of a deterrent it seemed like.
Speaker 3 (47:06):
Well, I dunno if it’s a deterrent, but it was certainly a step in being able to do it. The merchant still has to tell the acquirer and they really must tell the acquirer because only the acquirer can activate Field 28, populate that data. But the rails are there. And I think if I were to characterize it, I’d say that they’ve either been not read, it’s certainly not been properly adhered to in many senses. And the possibility of us rewriting those rules to add further clarity is definitely realistic. And in fact, I, I’m in discussions about that now. And again, I want to be clear, my intent, Visa’s intent is not to take away those abilities. It is to make the rules even more unequivocal about what is permissible and what is not permissible.
Speaker 6 (48:03):
So I think to his point is these merchants, they’re not necessarily looking to, I just want to be able to give my customers a discount. I think them for
Speaker 3 (48:10):
Speaker 6 (48:11):
Think for them, they’re more focused on how do I get the zero fee processing? And obviously on our end that our bandaid was to try and do some form of cash discount. I’m sure that’s what most of people are doing just because of the fact that we can’t unilaterally have one set charge a surcharge for both credit and debit. So I think what we need to look at is in reality, how can we make it to where we can actually do credit and debit surcharges the same fashion, so we can buy that zero fee processing per purchase?
Speaker 3 (48:38):
Well, I mean there’s a great point, but I will, I’m going to go out and limb and say surcharge on debit is never going to happen. I truly believe that. And that is because we reduce the pricing on debit. The challenge is that debit reduction, that reduction in pricing on debit is in many instances not being passed on to the merchant. Hence the reason they want to surcharge on debit because they’re paying the same fees on debit that they are on credit, but Visa’s not charging the same fees on debit that they are on credit, but the merchant’s still paying it. So that means someone in that chain between Visa and the merchant is absorbing that benefit. You
Speaker 6 (49:15):
Do have an interchange rate for signature debit, correct?
Speaker 3 (49:18):
Speaker 6 (49:19):
Speaker 3 (49:19):
In this case, it’s a lot smaller though. There’s virtually no signature debit in the US now because of the dual network piece that pretty much eliminate signature debit
Speaker 12 (49:31):
And there’ll be no
Speaker 3 (49:32):
Speaker 12 (49:33):
Speaker 3 (49:33):
Speaker 12 (49:35):
Somebody sues Visa and it’s ruled that that’s an unreasonable
Speaker 12 (49:40):
Restraint on free speech. What’s the question? I guess my question is, say I go to a customer that’s paying 2.5 and I say you don’t have to pay for processing, just change your menu and add 3% one at 2.5 original and then add the dual pricing model rate. Why would that merchant not just raise the rate and stay at 2.5? I lose half a basis points there personally. And then is there even data that says dual pricing is a better look for the consumer than just a line item? For me, I’ll more likely use credit card if I’m checking out and I just see 3% card for credit card, not this is the price, this is the price, all of this. So I guess data-driven should be the purpose.
Speaker 3 (50:31):
Speaker 12 (50:32):
Makes people spend use more card? I’ll use less card if I have to look at all these different algorithms on the menu. So that’s the whole purpose is to increase card usage for Visa. So I think it makes more sense to not have so much and just have a little line item. It means the same regardless. You’re charging them a fee. It’s just less confusion, I guess. To
Speaker 3 (50:53):
Buy a line item, you mean?
Speaker 12 (50:54):
No, just like at the bottom of the menu saying 3% for credit cards. Right. So
Speaker 3 (50:58):
Speaker 12 (50:59):
Cs, but it does mean the same thing regardless. So is there data saying this has less of a kickback, right? From the consumer? Why do the dual pricing even to begin with?
Speaker 3 (51:10):
But when you say 3% for credit card, do you mean including debit?
Speaker 12 (51:14):
Yeah. Yeah. For
Speaker 3 (51:15):
Well, that’s the surcharge then.
Speaker 12 (51:16):
Yeah, I know, but what I’m saying is it all means the same whether you put it in a two menu prices, cash discounting. The average consumer doesn’t care about any of that regardless. They just know I’m paying, I want to check out, I’ll be on my way. I don’t think data actually, if you take the data, it doesn’t matter any of it. They know they’re paying, they just want to see a simple thing. So that’s what I’m trying to figure out. How do they get to that conclusion?
Speaker 3 (51:39):
I completely agree with you. The solution, if you want simple, transparent consumer pricing, but you want to do a cash discount as well, is that footnote says a 3% production if you pay in cash, not a 3% fee if you pay over the card.
Speaker 12 (51:52):
Yeah, I just don’t get it. I guess
Speaker 3 (51:55):
That’s how you do it. The reluctance is for merchants to increase their pricing.
Speaker 12 (52:00):
Speaker 3 (52:00):
That’s again, in restaurant. I don’t buy in
Speaker 12 (52:02):
Restaurant. I think it’s more confusing really. But also as a selling point, it’s difficult to sell a client that’s at 2.6, say, I’ll bring it to three, you pay nothing. Well, they’re like, I’m at 2.6, I’ll just make my menu 3% and I’ll net 40 basis points. Why do I need you? So it makes it harder to sell it when I could just say, I’ll make it 3% flat rate put at the bottom of your menu. And I think it means the same actually for me when I go out, I don’t need to see all this menu stuff, just put that little sign there 3%, I’m just going to pay it. And I think that’s how most consumers are, honestly, 99%, all of it. They don’t care. It all means the same money’s money. Doesn’t matter how you rephrase it, it’s all the same lingo. That’s what I’m trying to figure out. Is it data-driven? Why they’re making it like that?
Speaker 3 (52:46):
So again, I maybe sounding a little bit so I apologize. The bottom line is that if you’re going to use the Visa network to conduct transactions, then those transactions have to be in accordance with our rules the same way as if you’re giving a merchant an MCC. If they’re a supermarket, don’t give them the MCC of a restaurant. So compliance with those rules is essential. And again, if you’re looking for transparent, simple pricing strategies for cash discount, then that footnote says whatever the discount is for cash, one price, which is the card price, the footnote is the discount for cash. That’s simple. I just think that from what you proposing,
Speaker 13 (53:36):
I think that
Speaker 8 (53:36):
Method will lower card usage, just having a flat line. It’s confusing for the consumer and they don’t even want to deal with it. Just check out. They’ll spend more cash card that way.
Speaker 3 (53:45):
Our experience has been, and we are researching this and there is a white paper coming out on this, but our experience has been based on the complaints I’m seeing, consumers are not happy about surcharging. And a lot of those surcharges that we see are cash discounts because they’re cash discounts achieved by adding a fee, which as I again mentioned, is a surcharge. There’s no other way to describe it.
Speaker 8 (54:13):
We’ve got time for one more quick question. Oh, come on. For those of you, we’ll have this last question and then I want to let you know that
Speaker 13 (54:23):
Speaker 8 (54:23):
Panelists will be available out in the hallway for about 15, 20 minutes after the session.
Speaker 3 (54:31):
These three guys will be,
Speaker 8 (54:33):
I think there’ll be four of us available. I
Speaker 13 (54:35):
Hope you have some body guards.
Speaker 3 (54:39):
I have a car waiting outside
Speaker 13 (54:41):
A black car, high rock
Speaker 3 (54:43):
Speaker 13 (54:44):
So Rob, question for you.
Speaker 3 (54:46):
Speaker 13 (54:47):
Okay. Were you impacted by the cost of inflation?
Speaker 3 (54:51):
Was I impacted? Yes,
Speaker 13 (54:52):
Speaker 3 (54:52):
I mean, I live in the US and on planet earth. So
Speaker 13 (54:56):
Yes, we all Do you pay more at the grocery store in the gas stations?
Speaker 3 (54:58):
Speaker 13 (55:00):
Speaker 3 (55:00):
There’s not a single item Safeway that isn’t 4 99. Now
Speaker 13 (55:02):
I’m not trying to be a smart ass, I promise I’m getting to a point. So the point is, every business owner out there, our merchants, your merchants processing with Visa with us have all been impacted by the cost of inflation, meaning cost of goods have gone up, their meat, their breads, their butter, everything has gone up. So you’re not going to have a merchant that’s going to say, Hey, I’m going to do cash discount with you or surcharging and I’m going to change my entire 2000 menu item to reflect a cash price and a credit price. They’re just not going to do it. We’re being real here. Fact is a fact. Who can agree with me? So my question to you is, if they posted a little sign at their cash register that says we impose a surcharge of 4% on the transaction amount of Visa credit card products, which is not greater than our cost of acceptance. We do not surcharge visa debit cards. Why can the POS not be enough? That shows a cash price and a credit
Speaker 8 (56:18):
Speaker 13 (56:18):
And the card holder has to continue with that? Should they choose to run it as a credit with the 4% tagged on there? Where are we not compliant here? I’m really having a difficult time to understand this.
Speaker 3 (56:32):
Yeah, I want to clarify the question. Oh, go ahead Adam. Oh, okay. I think we might be conflating a couple of models here. So when you say run it as a credit, do you mean this thing that confused the hell out of me when I moved to the US and tried to use my debit card and they would say debit or credit, and I’m like, it’s a debit card, but debit actually means pin credit meant signature. We don’t really do signature anymore, thank goodness, because it’s pointless. But is that what you mean by run it as credit?
Speaker 13 (57:01):
Speaker 3 (57:02):
Can you repeat that? There’s 700 people who could, but no, when they say, when you say run it as credit, do you mean a debit card put through credit rails, which is this signature versus pin thing.
Speaker 13 (57:17):
So my merchants that I’ve turned them onto this program, we turn off debit.
Speaker 3 (57:24):
So you surcharge annual credit,
Speaker 13 (57:26):
Correct? There’s no pin, there’s nothing. They’re running it as a credit card,
Speaker 3 (57:31):
But that’s still, wait, are you running a debit card as credit or literally only credit cards. Ones where there’s
Speaker 13 (57:37):
Only credit cards.
Speaker 3 (57:37):
Okay, so surcharging accurately on credit products only?
Speaker 13 (57:41):
No, they have the Visa or the MasterCard logo on them.
Speaker 3 (57:44):
Speaker 13 (57:46):
But okay, understood. But I have a debit card and if I don’t put my pen, it runs as a credit
Speaker 3 (57:52):
Debit. So I wish it was that simple. Yeah. So again, when I moved to the us, I started use my debit card and I
Speaker 13 (58:01):
Let’s back up real quick. Debit will credit me. You’re saying can’t ask the customer merchant can’t ask the customer debit or credit. Correct?
Speaker 3 (58:09):
They they have network choice on a debit card,
Speaker 13 (58:14):
But this is a really gray area.
Speaker 3 (58:17):
I would argue it’s not.
Speaker 13 (58:20):
But if the merchant is not allowed to ask their cardholder, would you like to run a debit or credit,
Speaker 3 (58:27):
Where are we? I will say, in fact, they are acquired. If a merchant is going to exercise his alternative routing rights, he has to give the consumer choice. I have to cut us off here. I’m getting the signal that everyone’s been giving to Rob all day. Thank you to Rob in particular. Let’s give him a hand here. That was great. Thank you Rob. I think you did really well.
Speaker 2 (59:02):
Yeah. And we’ll be in the hallway and in exhibit hall and Rob will probably be at the bar. The thank you for listening to this episode of the Payments Experts podcast, new episodes first and third Thursdays. If you’re interested in learning more about PEP and how Global legal law firm may be able to assist you. Please visit us at global legal law firm.com to schedule a free consultation. Give us a call at (888) 846-8901 or email email@example.com. And once again, thank you for listening. 1, 2, 3. Come on.
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