The U.S. Supreme Court.


WASHINGTON — The Supreme Court on Thursday agreed to hear a case brought by five merchants challenging a New York state law that prohibits companies from imposing a surcharge when customers use credit cards and alerting them to it.

The case could have broader implications for retailers who have waged a separate battle in the courts to lower or eliminate “swipe fees” that card companies charge them when consumers use credit cards. The fee is typically passed onto consumers in the form of higher prices.

In the case now before the Supreme Court, the justices will consider whether the law enacted in New York violates the First Amendment by restricting merchants’ speech in the way they convey price information to consumers. New York and nine other states have enacted laws that allow merchants to offer discounts to customers who pay in cash, but prohibit them from imposing surcharges and telling customers about it if credit cards are used.

The group of merchants is challenging the New York law, which makes it a crime, punishable by up to a year in prison, if merchants impose surcharges on credit card purchases.

The high court granted certiorari in the case, Expressions Hair Design, et al v. Eric T. Schneiderman, Attorney General of New York et al. It involves a group of companies, including Expressions Hair Design, Brooklyn Farmacy & Soda Fountain Inc., Bunda Starr Corp., Five Points Academy and Patio.com.

“Ten states have enacted laws that seek to control how merchants may communicate the price difference to consumers,” the petitioners argued in the petition. “New York’s law is illustrative: It allows merchants to offer ‘discounts’ to those who pay in cash, but makes it a crime…to impose equivalent ‘surcharges’ on those who pay by credit card.”

The petitioners assert that the New York law violates the First Amendment. The Second Circuit Court of Appeals ruled that the state law is constitutional and is consistent with the First Amendment, stating it regulates “merely prices,” not speech, overturning the lower court’s decision, according to court documents.

Shortly after the Second Circuit’s decision, the Eleventh Circuit Court of Appeals struck down a similar Florida law, which set up a split among the circuits, and which the high court could try to resolve with the case.

The Retail Industry Leaders Association said the split between the appeals courts is “highly problematic for national retailers.”

“We welcome the court’s review of this important issue,” said Deborah White, executive vice president and general counsel at RILA. “Retailers believe that transparency and competition are absent from the broken debit and credit card markets. Retailers should be free to communicate the cost of credit and debit card transactions to customers at the point of purchase. The inability to do so in some jurisdictions denies customers access to information that could affect purchase decisions and further emboldens Visa and MasterCard to charge higher and higher fees.”

The petitioners in the case said they “all want the same thing: to truthfully tell their customers that there is an ‘additional fee’ or ‘surcharge’ for using credit.”

“The invisibility of swipe fees is no accident. It is the product of concerted efforts by the credit-card industry over many decades,” the companies asserted in their petition to the high court. “Over the years, the industry has succeeded, both through contractual provisions and legislation, in silencing merchants’ attempts to call consumers’ attention to the true costs of credit.”

Retailers have been locked in a protracted legal battle with Visa and MasterCard for more than a decade over the fees the card companies charge merchants for credit card purchases.

A federal appellate court overturned a $7.25 billion antitrust settlement entered into by Visa and MasterCard with a broad swath of retailers over swipe fees in June. The antitrust class action was brought on behalf of 12 million merchants against the two largest credit card-issuing networks claiming that they paid excessive fees for accepting a Visa or MasterCard due to alleged conspiracy among the defendants.

The case was remanded to the federal district court for further action.

Mallory Duncan, general counsel and senior vice president for the National Retail Federation, which is not directly involved in the Supreme Court case, said: “In general, retailers don’t want to surcharge. What we want are lower, competitive swipe fees across the  board. If we can accomplish that, we can pass on savings to customers or invest in other services they want.”

He said the Supreme Court case has a tangential effect on the broader battle retailers are fighting against the card companies.

“Any time you get rid of an unnecessary rule from the card companies, you open up the possibility of transparency and competition,” Duncan said.

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