AmEx Must Change Anti-Steering Rules During Appeal

Case: United States v. American Express Co.

Issue: The implications of the permanent injunction imposed on American Express Co. (Amex) to remedy its anti-steering rules.

Case Summary: The Second Circuit denied Amex’s emergency request to halt a permanent injunction issued by the district court ordering Amex to change its anti-steering rules that prohibit merchants from encouraging customers to use less-expensive credit cards.

The permanent injunction issued by the New York district court blocks Amex’s anti-steering rules and allows merchants to offer discounts or incentives to steer customers to less-expensive credit cards. The district court denied Amex’s motion to halt the injunction pending its appeal to the Second Circuit.

Amex subsequently filed an emergency motion with the Second Circuit to halt the injunction during its appeal because the injunction would cause “irreparable harm” to its sales and market share. Four trade associations and 89 retailers filed an amicus brief urging the Second Circuit to enforce the injunction pending appeal.

The three-judge panel for the Second Circuit denied Amex’s emergency motion and ordered Amex to comply with the injunction, but agreed to speed up consideration of the appeal.

Bottom Line: Amex is now required to comply with the permanent injunction and alter its anti-steering rules during its appeal. Amex’s appellate brief is due August 3, 2015.

About Thomas Pinder

Thomas Pinder
Thomas Pinder is senior vice president and senior counsel for litigation in the office of ABA's general counsel.
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