Bryan Cave Leighton Paisner Retail Blog

Retail Law

Other Posts

Main Content

Supreme Court Holds American Express’s Antisteering Rules Don’t Violate Antitrust Laws

On June 25, 2018 the Supreme Court ruled, in a 5-4 decision, that American Express’s antisteering rules do not violate federal antitrust laws. In reaching this conclusion the Court determined that, for two-sided markets like credit cards, both sides of the platform must be analyzed when determining whether a practice has an anticompetitive effect. Because Ohio and the other states challenging American Express’s antisteering rules had focused only on the price increase on the merchant side of the two-sided market, and ignored the impact on cardholders, they did not carry their burden of showing that the antisteering rules resulted in anticompetitive pricing, i.e., that the antisteering rules had an adverse effect on the market as a whole. Specifically, the plaintiffs had not accounted for the consumer side of the market, which the Court found must be considered in determining the competitive impact of American Express’s antisteering rules.

At issue in

Supreme Court to Review Antitrust Suit Over AmEx Merchant Rules

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

The attorneys of Bryan Cave LLP make this site available to you only for the educational purposes of imparting general information and a general understanding of the law. This site does not offer specific legal advice. Your use of this site does not create an attorney-client relationship between you and Bryan Cave LLP or any of its attorneys. Do not use this site as a substitute for specific legal advice from a licensed attorney. Much of the information on this site is based upon preliminary discussions in the absence of definitive advice or policy statements and therefore may change as soon as more definitive advice is available. Please review our full disclaimer.