Heartland Payment Systems Sued By Banks

Heartland Payment Systems has been sued in multiple lawsuits by various banks or credit unions that have had to reissue payment cards in the wake of the Heartland breach. Significantly, it appears that at least some of the allegations include a breach of contract claim based on a 3rd party beneficiary theory.  Note, however, that in this case, since Heartland was likely not a party to a card brand's membership agreement, the banks are alleging that they are the third party beneficiaries of contracts between Heartland and various merchants and/or acquring banks.  Thus the viability of the 3rd party beneficiary theory will come down to the intent reflected in these contracts.  If fairly standard boilerplate disclaiming 3rd party beneficiairies is present it may be more difficult for the banks to proceed on this theory. Three bank complaints can be found here, here and here. More analysis to come... stay tuned.