AmEx told it cannot enforce anti-steering rules

This is not surprising but yesterday, Judge Garaufis of the U.S. District Court for the Eastern District of New York issued an injunction prohibiting American Express from enforcing its Anti-Steering Rules (also called “Non-Discrimination Provisions”), which prevent merchants from steering customers to other credit or debit cards.  The order is effective in 30 days, or 30 days from the expiration of any stay, which Amex has stated it will seek pending an anticipated appeal.

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Among the other things, the court’s order:

  • Allows merchants to steer customers to any credit, charge, or debit card brand or type by expressing a preference, or giving a discount, for the use of that card or cards;
  • Allows Amex to continue to prohibit surcharging the use of its cards or the mischaracterization and disparagement of its brand;
  • Allows Amex to independently negotiate agreements with Merchants to steer customers toward its cards;
  • Allows Amex to steer cardholders toward merchants that do not steer;
  • Requires Amex to provide notice, in wording approved by the DOJ, of the changes to its rules to all merchants;
  • Requires Amex to provide notice to the DOJ of its termination of card acceptance rights to any merchant and the basis for doing so;
  • Grants the DOJ broad powers to ensure compliance.

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