American Express Department of Justice Ruling

A federal court has ruled that American Express violated the law by prohibiting merchants from influencing the payment form that their customers use. As a result of that ruling, you may now favor any credit card brand that you wish, by, for example, communicating to customers which credit card brand you would prefer that they use, telling customers which credit card brands are the most or least expensive for you, or offering discounts or incentives to customers to use the credit card brand you prefer. Consistent with the federal court’s ruling, you may not, however, disparage or mischaracterize the American Express brand or impose a surcharge (as opposed to a discount) on customers who use an American Express credit card.

 

To influence the credit card that a customer uses, you may employ any of the practices listed in Section III.A of the court’s order, including:

  • Offering a discount or rebate, including an immediate discount or rebate at the point of sale;
  • Offering a free or discounted product;
  • Offering a free or discounted or enhanced service;
  • Offering an incentive, encouragement, or benefit;
  • Expressing a preference for a particular brand or type of card;
  • Promoting a particular brand or type of card through posted information, through the size, prominence, or sequencing of payment choices, or through other communications to a customer;
  • Communicating to a customer the reasonably estimated or actual costs incurred by you when a customer uses a particular card, or the relative costs of using different brands or types of cards; or
  • Engaging in any other practices substantially equivalent to these.

 

To review all applicable terms and conditions, please refer to the court’s order, a copy of which may be found at:

http://www.justice.gov/atr/case-document/order-entering-permanent-injunction-american-express-defendants.

 

The court’s order also allows American Express to maintain merchant rules providing that you cannot make untrue statements about your cost of accepting American Express Cards or the relative cost of accepting American Express Cards as compared to other credit and charge cards. Similarly, if you choose to compare your cost of accepting American Express Cards to your cost of accepting other credit or charge cards, you must exclude the costs of accepting debit cards from your calculation.

 

If you choose to attempt to influence a customer’s choice of credit or charge card, you must reasonably indicate that you accept American Express Cards by posting signage, either at the point of sale (including online or on mobile services) or at the store entry, or by communicating orally that you accept the American Express Card prior to the request for authorization of the transaction. For example, you may satisfy this requirement by displaying a sticker at the point of sale or at the store entrance indicating all brands you accept that includes the American Express logo.

 

Accordingly, American Express has made modifications to its U.S. Merchant Regulations, the U.S. Merchant Reference Guide, and the U.S. Merchant Operating Guide to reflect the federal court’s ruling.

 

American Express is presently appealing the federal court’s ruling. If the federal court’s ruling is reversed or modified as a result of the appeal, American Express reserves all rights to cancel or revise these modifications. We will apprise you of any such updates in the future.