NY’s Credit Card Surcharge Ban To Get Supreme Court Review
The Supreme Court has decided to hear an appeal of a case challenging NY’s ban on credit card surcharges on the grounds that it violates the First Amendment. The Association submitted an amicus in the case in support of the surcharge ban when it was before the Second Circuit, pointing out that in Australia a decision to authorize credit card surcharges simply resulted in higher consumer costs.
New York General Business Law §518 bans merchants from surcharging credit card purchases but allows merchants to offer cash discounts. The law hasn’t gotten that much attention over the years because surcharging was also banned under credit card network rules. When the network ban was eliminated as part of a deal settling antitrust claims, attention turned to the ten states, including NY, that impose surcharge bans.
In Expressions Hair Design v. Schneiderman, 808 F.3d 118 (2d Cir. 2015), five retailers argued that the law prevented them from accurately explaining their pricing policies to their members. The Second Circuit upheld the ban, reversing a lower court ruling that it violated the First Amendment rights of the merchants.
In their appeal the merchants asked the Court to decide “whether these state no-surcharge laws unconstitutionally restrict speech conveying price information (as the Eleventh Circuit has held), or do they regulate economic conduct (as the Second and Fifth Circuits have held)?”
We will know the answer to this question by the end of this term. If the Court were to split 4-4, the Second Circuit’s ruling is upheld.
Red Sox Awakening
Congratulations to the Red Sox and their fans for backing into the American League playoffs despite losing to the Yankees on a walk off grand slam Wednesday night. Wait till next year.
Life was a lot more fun when you knew the Red sox were going to fall just short. It was a real life version of the football being pulled away from Charlie Brown with the added benefit of always being able to win any argument against Boston fans just by motioning the Red Sox.
By the way, as much as I don’t like the Red Sox how great would a Cubs Red Sox series be? It would be like watching Theo Epstein, the former GM of the Sox and current GM of the Cubs playing himself in Fantasy baseball but with live players.