What's At Stake In The AmEx Merchant Rules Case

Erick Sandler was quoted in an article, "What's At Stake In The AmEx Merchant Rules Case," published in Law360. The article discusses the importance of a recent decision by the U.S. Supreme Court to take up a case over American Express Co.'s policy of prohibiting merchants from steering customers to other credit cards. In granting a petition from a group of 11 states alleging that anti-steering provisions in AmEx's merchant agreements are anti-competitive, the high court will now have an opportunity to provide clarity on the rule-of-reason. "Both sides in the case seem to recognize that the Supreme Court usually grants cert in antitrust cases to decide which mode of analysis to apply, whether it be per se, quick look, or rule-of-reason," Sandler told Law360. "Here all of the parties seem to agree that rule-of-reason analysis should be applied, and the issue is how to apply that analysis." Sandler further noted that while the states used the lack of clarity on the issue as an argument in favor of the Supreme Court taking the case, AmEx argued that this was a reason not to. "Interestingly, the states argued that the court needed to provide guidance on the contours of the rule-of-reason standard in light of that, where American Express argued that the issue should be allowed to percolate in the lower courts before the Supreme Court takes it," Sandler told Law360. In conclusion, Sandler said, "I would expect any decision is likely to be an important one and to provide guidance in an area where there is not well developed guidance at this point. But with this court, and with antitrust cases generally, it's likely that the ultimate decision turns on facts and circumstances that are unique to the credit card industry."