Supreme Court sides with American Express in antitrust case

The Supreme Court on Monday sided with American Express, upholding a provision in its contract that prohibits merchants from persuading shoppers to use credit cards with lower swipe fees.

In a 5-4 ruling, the court held that the company’s anti-steering provisions do not violate federal antitrust laws.

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Ohio and 10 others states — Connecticut, Idaho, Illinois, Iowa, Maryland, Michigan, Montana, Rhode Island, Utah and Vermont — brought the challenge, arguing the company’s rule violates federal antitrust laws by restricting trade. 

The states claimed the rules had the actual market effect of raising the price of fees credit card companies charge merchants and that those increased costs have been passed on to the consumer.

American Express, however, argued its rules have allowed it to compete in a market where Visa and MasterCard command a combined share of 68 percent of credit card transactions.

Justice Clarence Thomas delivered the majority opinion, which Chief Justice John Roberts and Justices Anthony Kennedy, Samuel Alito and Neil Gorsuch joined.

Justice Stephen Breyer filed a dissenting opinion, which the other members of the court’s liberal wing — Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — joined.

Thomas said the court found the challengers’ argument that American Express agreements increase merchant fees unpersuasive.

“Focusing on merchant fees alone misses the mark because the product that credit-card companies sell is transactions, not services to merchants, and the competitive effects of a restraint on transactions cannot be judged by looking at merchants alone,” he said.

“Evidence of a price increase on one side of a two-sided transaction platform cannot by itself demonstrate an anticompetitive exercise of market power.”

To demonstrate anticompetitive effects on the two-sided credit-card market, Thomas said the plaintiffs have to prove that the credit-card company’s anti-steering provisions increased the cost of credit-card transactions above a competitive level, reduced the number of credit-card transactions, or otherwise stifled competition in the credit-card market.

American Express called the court’s ruling a major victory for the company and consumers.

“This was a long battle, but well worth the fight because important issues were at stake: consumer choice, fair market competition, and the ability to deliver innovative products and services to our customers, both consumers and merchants,” the company’s chairman and CEO Stephen Squeri said in a statement. “As the Supreme Court stated today, ‘…Amex’s business model has stimulated competitive innovations in the credit-card market, increasing the volume of transactions and improving the quality of the services.’”

The Retail Industry Leaders Association, a trade group for retailers, said Monday’s decision is a loss for American consumers.

“Competition in the credit card space is sorely lacking,” Deborah White, RILA’s general counsel and Retail Litigation Center president, said in a statement. “The Court’s decision to uphold the Second Circuit’s misguided approach will allow AmEx to continue to stifle competition and prevent consumers from understanding the cost of rising credit card fees.”

Updated at 2:56 p.m.