American Express: Key Insights As Trial Ends

The long trial in United States v. American Express has come to an end: on September 18, 2014, the parties exchanged post-trial briefing and on October 9, 2014, the court held oral argument. News reports suggest that the Court (Judge Garaufis in the Eastern District of New York) was looking for ways to avoid court intervention (including urging the parties to settle) and suggest that, if it did find an antitrust violation, the Court would consider holding additional proceedings to determine the appropriate remedies.

As many of you know, the core allegation underlying this case, brought by the United States Department of Justice and a number of additional states (together, the "Government"), is that American Express barred its merchants from offering incentives for customers to use credit cards with lower retail charges or other forms of payment. The Government claimed that American Express's "anti-steering" rules prevented merchants from directing consumers to more