October 19, 2017
Authored by: Bryan Cave, Vanessa Fulton, Philip Bartz and Jacob Kramer
The retail industry should have great interest in a case set to be decided the Supreme Court this term, the outcome of which will affect the terms and conditions of credit card acceptance for all merchants.
The Supreme Court has granted certiorari to review the Second Circuit’s decision in Ohio v. American Express, an antitrust case in which a group of states have challenged American Express Co.’s rules preventing merchants from steering customers to other credit cards as being anti-competitive.
The case is based on the American Express (“AmEx”) “anti-steering” rules, also known as “non-discriminatory provisions” or “NDPs.” AmEx’s NDPs are provisions in the contracts between AmEx and merchants that prohibit merchants from showing a preference for credit cards other than Amex (like Visa or MasterCard) or otherwise offering customers discounts for using non-Amex credit cards.
In 2010, the federal government and several states filed suit against AmEx, arguing that its anti-steering