A federal judge in Trenton has granted preliminary approval to a $2.5 million settlement in a class action claiming that Princeton-based Heartland Payment Systems charged its customers unauthorized fees to process American Express transactions.

The suit was prompted by a $255 fee that Heartland charged in 2014 to the owners of Jacala Mexican Restaurant in San Antonio, the lead plaintiff, that was termed an “American Express Fee Adjustment.” Approximately 80,000 merchants were charged similar fee adjustments by Heartland, and total revenue from the disputed fee increase was more than $7 million, discovery in the case revealed.

The extra fee was imposed after Heartland sent Jacala and other merchants a letter promoting a reduced rate for processing American Express transactions.

According to the suit, Heartland billed Jacala and other customers for what it characterized as a miscalculation of fees, but plaintiffs claimed it was, in fact, a rate increase that violated the defendant's contract with its customers.

U.S. District Judge Anne Thompson gave the settlement preliminary approval and granted certification of the class on Wednesday. The class consists of merchants who processed credit cards with Heartland and “were subject to an American Express Fee Adjustment in their October 2014 account statements, retroactively implementing an increased American Express Discount Fee between the period of July 1, 2014 and October 31, 2014 and setting new American Express pricing going forward.”

A final approval hearing is set for Jan. 16, 2018. Heartland agreed not to oppose a fee award of $833,333 to plaintiff attorneys or a service award of $15,000 to Jacala, but those payments are still subject to approval by Thompson.

In June 2014, Heartland began a promotion in which it promised merchants that they could process American Express transactions at the same rates it charged for processing Visa and MasterCard transactions, the suit claimed. The fee that was imposed several months later meant that Heartland charged customers a higher rate for processing American Express transactions than for processing MasterCard and Visa, contrary to its prior assertions, the suit claimed.

The suit said Heartland's characterization of the fee increase as a “miscalculation” is a misrepresentation. And even if the purported miscalculation was a proper fee increase, it violated a provision of Heartland's contract with members requiring 15 days' notice before a fee change is implemented, the plaintiffs claimed.

The suit brought claims of breach of contract, breach of the covenant of good faith and fair dealing, violation of the New Jersey Consumer Fraud Act, and unjust enrichment.

After Heartland moved to dismiss, Thompson dismissed the Consumer Fraud Act claim in August 2016 but declined to dismiss the remainder of the counts. Thompson ruled after finding that Jacala signed up with Heartland to accept American Express before the defendant sent out its letter promoting lower fees.

The parties reached their agreement after two sessions of mediation with former U.S. District Judge William Bassler, now with FedArb in Red Bank.

Thompson appointed Bassler as mediator in May. After an unsuccessful mediation, plaintiffs counsel made a motion to certify the class in June, and both parties moved for summary judgment. Before the motions were decided, the parties notified Thompson on Aug. 7 that they had reached an agreement after a second round of mediation before Bassler, according to the decision.

Seth Lapidow of Backes & Hill in Lawrenceville, who represented Heartland, and Stephen Fearon of Squitieri & Fearon in New York, who represented the plaintiff and the class, did not return calls about the case.

Contact the reporter at [email protected].