US: DOJ sends SCOTUS mixed message on Amex review

In a brief filed earlier this week, the US Department of Justice (DOJ) is asking the US Supreme Court to let stand its Second Circuit loss in a lawsuit against American Express over the company’s merchant anti-steering rules

The Ohio attorney general’s office and another 10 states appealed a federal court’s decision allowing American Express to bar merchants from steering customers to lower-priced credit cards. In June, the Justice Department opted not to appeal the ruling.

The acting solicitor general’s brief arguing against a Supreme Court review, is the first time the federal government has explained why it didn’t pursue an appeal of a major court loss.

The DOJ asked the justices to turn down a petition for certiorari filed in June by 11 states after the federal government decided not to pursue its own appeal of the Second Circuit’s September ruling. The brief said, neither the Supreme Court nor circuit courts have “squarely considered” the application of antitrust laws to two-sided markets. For that reason, the high court shouldn’t accept a petition for writ of certiorari.

“The court of appeals seriously departed from sound antitrust principles, and its decision leaves in place restraints that thwart price competition in an important sector of the economy and inflate the retail prices paid by all consumers,” the brief said.

Full Content: Bloomberg

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