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Table of Contents

Lead Story

The (tech)tonic shift in payments

News

Industry Update

AmEx defends merchant pricing in court

Recess appointment rebuke raises CFPB debate

Trustwave, First Data team for 'inside-out' security

Features

Striving to be the best place for ISOs worldwide

SDK for ISVs

Views

Visa gets practical to further data security

Ken Musante
Eureka Payments LLC

Education

Street SmartsSM:
Are You Selling Or Telling? - Part 2: Perception is reality

Tom Waters and Ben Abel
Bank Associates Merchant Services

Preparing for EMV migration

Chandan Mukherjee
PayCube Inc.

How can the FTC freeze personal and business assets without a hearing?

Michael Thurman
Thurman Legal

Working from home

Vicki M. Daughdrill
Small Business Resources LLC

Company Profile

Leaf

Pivotal Payments

New Products

Easing into EMV

VIABLE
Vantiv Inc

Franchise POS system

Bevo Charisma
Benseron Information Technologies Inc.

Inspiration

Midyear performance check

Departments

Readers Speak

Resource Guide

Datebook

Skyscraper Ad

The Green Sheet Online Edition

July 28, 2014  •  Issue 14:07:02

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AmEx defends merchant pricing in court

The American Express Co., long criticized for the high fees it charges merchants who accept AmEx cards, is now defending those fees, along with its anti-steering rules, in U.S. District Court in New York. The case, which a judge began hearing on July 7, 2014, is all that remains of a massive anti-trust suit filed in 2010 by the U.S. Department of Justice and several state attorneys general challenging AmEx, MasterCard Worldwide and Visa Inc. rules banning merchants from "steering customers" to less costly payment options.

MasterCard and Visa almost immediately reached multibillion-dollar, out-of-court settlements with the DOJ and the states; AmEx did not. The DOJ contends that AmEx's no-steering rules are anti-competitive because AmEx cards are too important for some merchants (especially those in travel and entertainment) not to accept.

"AmEx's rules have plain anti-competitive effects: they restrain the price competition that would otherwise discipline card networks from charging merchants higher fees – fees that merchants' customers ultimately pay as higher retail prices," Justice Department lawyers stated in a pretrial memorandum.

AmEx's rationale

AmEx countered that with over 53 million cards in consumers' wallets, its market share is minor and that the fees it charges are necessary to recoup costs such as fraud control and cardholder rewards. The card company added that most AmEx cardholders typically carry other cards – notably MasterCard and Visa cards – that they can just as easily use to pay for purchases. It just doesn't want merchants encouraging customers to use those other cards in lieu of AmEx cards. AmEx does allow merchants to negotiate surcharging authority, but they must also surcharge MasterCard and Visa card payments.

AmEx also believes it should not be held to the same standards as MasterCard and Visa because, unlike those brands, it must sell both merchants and their customers on using AmEx cards.

DOJ's point of view

"While it is certainly true that card networks need both cardholders and merchants, there is no precedent to support AmEx's position that plainly anti-competitive practices harming merchants – and ultimately tens of millions of their customers (including those who pay with other credit cards, debit cards, checks or cash) – can be excused because AmEx rewards a fraction of those customers (i.e., its cardholders) with some of the bounty that AmEx reaps from avoiding price competition," the DOJ stated in its pretrial memorandum.

The DOJ further challenged AmEx's assertions by producing AmEx documents detailing pricing negotiations with several major airlines. Those documents, dating back to 2008, described AmEx's shares of various airlines' corporate charge volume as being at or near 60 percent. They also describe proprietary research indicating that 86 percent of AmEx cardholders will not fly on airlines that don't accept AmEx plastic.

The presentation of evidence and legal arguments is expected to take at least two months. The judge in the case could reach a decision by the end of 2014.

Notice to readers: These are archived articles. Contact names or information may be out of date. We regret any inconvenience.

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