Court: United States Supreme Court (certiorari stage)
The Retail Litigation Center filed an amicus brief supporting eleven states seeking US Supreme Court review of a Second Circuit decision that reinstated American Express' anti-steering rules. These rules prohibit merchants from giving benefits to shoppers who use credit cards with lower rates and from communicating truthful information about credit card fees to those shoppers. The Second Circuit's ruling upheld the anti-steering rules despite the district court's extensive fact-finding and lengthy opinion concluding that the rules violated the Sherman Act. In addition to the harms that the Second Circuit decision visits on traditional retailers, the brief noted the difficulties that the lower court's construct will pose for new economy ventures, such as Facebook and Google.
The RLC's amicus brief joined other amicus briefs filed by (1) professors of antitrust law, (2) former federal antitrust officials, (3) a consumer advocacy group, (4) noted economists, (5) Discover, (6) Southwest Airlines, and (7) fourteen retail amici that wrote specifically to point out the untested nature of the information upon which the Second Circuit relied to reach its conclusion.
Procedural History and Case Documents:
- U.S. v. American Express (lower court consideration)
- States of Ohio, Connecticut, Idaho, Illinois, Iowa, Maryland, Michigan, Montana, Rhode Island, Utah, and Vermont Petition for Writ of Certiorari filed June 2017
- RLC Brief in Support of Certiorari filed July 2017