EMA Legal Reminder: VISA/MasterCard Settlement Administrator Accepting Claims Forms Now through August 30, 2024

After the VISA/MasterCard case was filed over 18 years ago, and over 5 years since the court approved the September 18, 2018, Class Settlement Agreement, the Class Administrator of the $5.5 billion payment card interchange fee settlement fund has mailed out claim forms to retailers/marketers who may be eligible for a share of the Settlement Fund. The deadline to submit claims is August 30, 2024.

1. CLAIMANTS must have accepted VISA and/or MasterCard as payment for their sales of goods or services between January 1, 2004 and January 25, 2019. Claim Forms must be submitted by August 30, 2024. If you received a Claim Form in the mail and want to file a claim online using the Claimant ID provided, please click the “Submit a Claim” button” at this link: https://www.paymentcardsettlement.com/en.

2. Branded marketers should submit a claim, for branded sales, even though there is currently a dispute about whether they or their branded supplier is entitled to recover the settlement share for credit card sales through their branded supplier’s respective systems. As previously reported by the Energy Marketers of America (EMA), a Special Master has been appointed by the court to hear appeals from denials of eligibility, such as claim denials based on the alleged status of branded retailers as indirect payers.

3. THE CLAIMS The actual claim amount, per $ of sales approved, will be calculated after the Claims Administrator calculates the total amount of the claims submitted. If you receive a claim form in the mail, fill it out and return it to the Settlement Administrator in accordance with the instructions on the form using the assigned Claim ID number. If your claim is denied, you will be able to bring it before the Special Master for review. If you did not receive a form, you can access the settlement website below and enter your Tax ID number (TIN) to find out whether the Settlement Administrator considers you eligible at http://www.paymentcardsettlement.com/en/Login.

While EMA has not secured the procedures to be utilized by the Special Master, a determination of ineligibility obtained by accessing the above-referenced login information should be sufficient as a denial of your claim to warrant an appeal to the Special Master.

Please note that the “Court Approved Claim Form" is only 1 page long. Other than claimant identification, it only contains one substantive question. It requires a claimant to fill in the blank for "Class Period (January 1, 2004-January 25, 2019) Interchange Fees Paid.” Marketers should not need any assistance in completing or filing their claims. A fund this large attracts firms who think of inventive ways to obtain some of the settlement. We have heard from several marketers who have received solicitations to assist with their claims due to the anticipated long delay until payout. Given that this case was filed in 2005, the time until payout is unknown, but it will likely be lengthy. Marketers may of course choose their own path but should understand that filing their claim form is simple.

If your claim is denied on the ground that you are an “indirect payer,” and you wish to lodge an appeal, you may want to first seek guidance from your attorney, although you are free to file your appeal without attorney assistance. The primary basis for any such appeal would be that you are, in fact, a direct payer of the interchange fees paid on each card transaction.

Comments and/or Questions? Please Contact EMA General Counsel: Bob Bassman, bbass@bmalaw.net or Al Alfano aalfano@bmalaw.net.

House Legislation Introduced to Extend the Biodiesel Blender’s Tax Credit through 2025

Representatives Mike Carey (R-OH), Claudia Tenney (R-NY), Annie Kuster (D-NH) and Mariannette Miller-Meeks (R-IA) introduced the “Biodiesel Tax Credit Extension Act of 2024,” (H.R. 9060), which aims to extend the $1 per gallon biodiesel blender’s tax credit through 2025. Extending the biodiesel blender’s tax credit is important to energy marketers in order to sell a growing portfolio of affordable, efficient, and environmentally friendly liquid fuels that are helping to reduce emissions while propelling Americans forward and lowering heating fuel costs.

“The Energy Marketers of America would like to thank Representatives Mike Carey, Claudia Tenney, Annie Kuster and Mariannette Miller-Meeks for introducing this important legislation to help small business energy marketers across the country. It’s a win-win for the environment and consumers’ pocketbook,” said EMA President Rob Underwood.

Since 2004, the $1 per gallon biodiesel blender's credit has worked successfully to build a strong incentive for downstream energy marketers to blend renewable fuel into the fuel supply which has lowered prices for motorists and heating fuels for consumers. As a result, the U.S. biodiesel and renewable diesel market has grown from roughly 100 million gallons in 2005 to 4 billion gallons today.

Unfortunately, the Inflation Reduction Act (IRA), which was signed into law in 2022, replaced the biodiesel blender’s tax credit with a new 45Z Clean Fuel Production Credit (CFPC) based on carbon intensity scores. Lawmakers are urging the Treasury Department to finalize rules for the CFPC by November 1. Ethanol, biodiesel, renewable diesel and sustainable aviation fuel (SAF) will all be eligible for the new production tax credit, however, the Department of the Treasury has yet to publish CFPC guidance. Therefore, it is important that Congress acts soon to extend the biodiesel blender’s tax credit to give impacted industries market certainty for at least another year. Depending on the outcome of the November elections, a GOP controlled Congress could reelevate much of the IRA’s tax credits so stay tuned.

EMA Urges Senators to Delay CTA Filing Deadlines

This week, EMA joined 130 organizations urging Senators to delay the filing deadlines of the Corporate Transparency Act (CTA) by passing amendments sponsored by Senators Tim Scott (#2169) and James Lankford (#2831) to the National Defense Authorization Act (NDAA). The companion to this legislation (H.R. 5119), introduced by Representatives Zach Nunn (R-IA) and Joyce Beatty (D-OH), was adopted by the House on a bipartisan vote of 420-1 on December 12, 2023. As a reminder, under the CTA, companies must disclose the identities and other information about anyone who owns a stake of at least 25 percent or exercises significant control over the company. Existing companies have until the start of 2025 to file their disclosures.

Earlier this year, a U.S. District Court judge in Alabama has ruled that the Corporate Transparency Act (“CTA”) Beneficial Ownership final rule is unconstitutional because it “exceeds the Constitution’s limits on the legislative branch” and fails the “necessary and proper” test. The plaintiffs in this case, the National Small Business Association and one of its members, sued in November 2022, seeking a permanent injunction against the implementation of the CTA reporting rules. For now, however, the injunction only applies to the plaintiffs in the lawsuit. All other reporting companies (who are not plaintiffs in this case) are still bound by the CTA and should continue to comply for now.

The one-year delay of the CTA’s filing deadline would 1) allow the court process begun with the decision in National Small Business Association v. Yellen to work its way through the Appellate and Supreme Courts, 2) be consistent with congressional intent to give covered entities two years to comply with the CTA’s reporting requirements, and 3) provide the business community and the Financial Crimes Enforcement Network (FinCEN) additional time to educate millions of small business owners regarding the new reporting requirements and the onerous penalties resulting if they fail to comply. To read the letter, click here.

Inside the Beltway Update

While many across the globe focused attention on President Biden’s withdrawal from the Presidential race and Vice President Harris’ presumed nomination, Congress looked to address major legislation as the summer session comes to a close. On Capitol Hill, the spotlight was squarely on appropriations, highlighting a stark contrast between the actions of the House and Senate. Faced with partisan deadlock over several funding bills, House Republicans chose an unconventional route: canceling votes and starting their August recess a week early to sidestep contentious issues. In contrast, the Senate, although lagging behind the House initially, has been more proactive. Senate appropriators have been diligently working on bipartisan bills and are expected to continue their efforts into the coming week, while House members shift their focus to the campaign trail.

Looking ahead, the timeline for actually enacting Fiscal Year 2025 spending measures will stretch well beyond the election, with the precise timing contingent on the election's outcome. Before Congress can address the more complex appropriations issues, we expect they will reconvene briefly in September to pass a short-term Continuing Resolution (CR) to extend government funding past September 30. Should either party achieve a sweep in the upcoming elections, they might opt to delay finalizing these measures until the new year, giving the new Congress an opportunity to influence next year’s funding decisions, but there is much uncertainty between now and then as well as there are differences in opinions as to whether the next President would be better served by having these issues settled or whether they should enter office and immediately dive into an FY 2025 appropriations fight.

Separately, a bipartisan coalition in Congress is making strides on permitting reform. The Senate, spearheaded by Sens. Joe Manchin (I-WV) and John Barrasso (R-WY), has introduced a bill aimed at streamlining some of the permitting processes for major projects. Somewhat surprisingly, the permitting package has bipartisan support and is set for a markup in the Senate Energy and Natural Resources Committee next week. Meanwhile, in the House, Reps. Bruce Westerman (R-AR) and Scott Peters (D-CA) are working on a similar but more aggressive bill to expedite the NEPA process. While the Senate bill is seen as a valuable first step, Rep. Westerman’s forthcoming House bill is expected to complement the Senate version.

As you know from our previous coverage, last month, the Supreme Court overturned Chevron Deference, a long-standing practice that allowed regulatory agencies to interpret laws flexibly. In response, two contrasting legislative proposals were introduced this week. One from Sen. Bill Cassidy (R-LA) that would require agency heads to testify before Congress before issuing new regulations, aiming to slow regulatory development, and another from Sen. Elizabeth Warren (D-MA) to reinstate Chevron Deference, arguing that it is fundamental to the federal regulatory framework. Despite their potential significance, it is unlikely neither proposal will become law.

As you all are aware, this week marked a historic turning point in the presidential race, following the Republican National Convention and the official end of President Biden’s candidacy. The Democratic Party has largely coalesced around Vice President Kamala Harris as the presumptive nominee. This shift underscores the fluidity of the political landscape; just a week ago, it seemed former President Trump was cruising towards a second term and Republicans were projected to win the House and Senate majorities. While Trump continues to lead in most polls, a lot of time remains before November. The political environment is changing daily and the next 6-8 weeks will be crucial in shaping the electoral narrative.

EMA’s Fall Meeting at the NACS Show 2024: October 6-7: Website and Registration Open!

EMA will hold its Fall Meeting in conjunction with the NACS Show on October 6-7 at the Encore at Wynn Las Vegas. The EMA meeting will begin with a New Attendee Orientation/Federal Legislative Update mid-afternoon on October 6. NACS/EMA Reception Salute to State Association Executives (all EMA members are welcome) will follow at the Las Vegas Convention Center in the Hunter Club Lounge. On the morning of October 7, there will be a Buffet Breakfast followed by Region and Committee Meetings. The EMA Board of Directors meeting is scheduled after the Distinguished Service Award Luncheon honoring Spirit® Petroleum President and former Washington State Marketer Gerry Ramm exclusively sponsored by EMA Board of Director Council Partner Federated Insurance.

An invitation was sent to your inbox on July 1. A reminder invitation will be going out early next week. Registration deadline is September 3, 2024 and our room block is 78 percent sold out so please do not delay in making plans! Responding to the links on the invitation email is the recommended way to register.

Remember, the NACS Show registration is separate from EMA’s Fall Meeting registration.

Special EMA Members Code for NACS Show 2024 Registration

The NACS Show is returning to Las Vegas this October, and it’s time to start planning.

Using this code provides EMA with $100 for every retailer or jobber paid registration at any rate. EMA encourages EMA state execs to promote and share with your state association’s member companies. Please see attached flyer.

***Please note that EMA State Execs are comped for NACS Show registration, and this link will be sent directly to them in the near future from NACS. Additionally, the NACS Show registration is separate from EMA’s Fall Meeting registration.

Again, the EMA NACS Show Registration Code is: EMANS2024 and CLICK HERE for Full Instructions to register.

Questions registering for NACS Show? Contact NACS Show registration customer service at nacs@maritz.com or 469-513-9489, Monday-Friday, 9:00 a.m. – 5:00 p.m. EST, for assistance.

Weekend Reads

Polling shows likely voters nationally and in battleground states solidly oppose Biden-Harris gas-car ban and consider the issue ‘important’ for 2024 | AFPM

EV output is 45% below what carmakers expected, supplier says | BNN Bloomberg (Video)

Tesla Stages $386 Billion Comeback as Musk Elevates AI Over EVs | Bloomberg

Federated Insurance: Risk Management Corner
Beat the Heat: Protecting Your Employees from Hot Weather

As the temperatures rise outside during summer months, so do the risks that your employees may be harmed by the dangerous effects of heat. As a business owner, it’s your responsibility to help monitor and minimize the risk of heat stress for your workers. To read about considerations about the heat index and temperature and keeping your employees safe during this weather, please click here.

Please always feel free to contact your Federated regional representative or EMA’s new National Account Executive Patrick Cunningham at 507.455.8935 for any additional information or risk management questions. Federated is a Partner in EMA’s Board of Directors Council.

At Federated Insurance, It’s Our Business to Protect Yours®

This article is for general information and risk prevention only and should not be considered legal or other expert advice. The recommendations herein may help reduce, but are not guaranteed to eliminate, any or all risk of loss. The information herein may be subject to, and is not a substitute for, any laws or regulations that may apply. Qualified counsel should be sought with questions specific to your circumstances. © 2024 Federated Mutual Insurance Company.