US: Time almost up for DOJ to request SCOTUS for Amex review

The Justice Department must soon decide whether it wants to ask the US Supreme Court to review a lower court ruling rejecting the government’s antitrust claims against American Express.

The stakes are high because the DOJ rarely loses in an appeals court on antitrust claims, and a new legal theory on multiple customer bases is on the line.

At issue is a practice that impacts most of the retail economy—the government’s claims that AmEx illegally stopped merchants from asking customers to use cheaper credit cards like Mastercard or Visa. Mastercard and Visa both settled with the DOJ over similar allegations in 2011.

Adding to the pressure, the nominee to head the antitrust division, who will weigh in on whether the DOJ should seek review, hasn’t had a date announced for a Senate confirmation hearing.

The antitrust assistant attorney general nominee, Makan Delrahim, might not assume his role before the Justice Department’s May 5 deadline to appeal for Supreme Court review. Patricia Brink, the antitrust division’s director of civil enforcement, said agency officials requested the extension “to allow the new leadership to consider” its position. The justices granted an extension of the DOJ’s deadline to file on March 24.

Full Content: Bloomberg

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