PLA today posts a decision from the Second Circuit enforcing American Express’s contractual prohibition against steering (see United States v. American Express Company). Reversing a district court opinion that barred these contractual terms for allegedly violating antitrust laws, the Second Circuit decision appears to allow Amex to prohibit merchants from:
- “offering cardholders any discounts or nonmonetary incentives to use cards that are less costly for merchants to accept;
- “expressing preferences for any card; or
- “disclosing information about the costs to merchants of different cards.”
This case could be appealed by the US Department of Justice.