Bates White client American Express wins jury verdict in antitrust consumer class action case concerning its non-discrimination provisions
On August 28, 2025, a jury in the Federal District Court for the Eastern District of New York returned a verdict in favor of Bates White client American Express in the consumer class action case Moskowitz v. American Express Company, finding no antitrust liability or damages. Two Bates White experts testified at trial on behalf of American Express.
Plaintiffs representing non-rewards credit card holders and debit card holders in eight states and the District of Columbia, alleged that American Express’s non-discrimination provisions (NDPs) in contracts with merchants violate federal and state antitrust laws. The NDPs prevent merchants from discriminating against American Express at the point of sale. For example, merchants cannot surcharge American Express cards unless they impose the same surcharge for all credit card and debit transactions. Merchants are also prohibited from steering customers to use other credit cards by expressing preference or offering discounts or other incentives at the point of sale. Plaintiffs alleged that the NDPs restricted competition between credit card networks and resulted in higher credit card acceptance costs for merchants, which were allegedly passed through to consumers in the form of higher retail prices. American Express argued that competition in the two-sided market for credit card transactions is intense, the NDPs protect consumers from merchant surcharging and other point of sale steering tactics, and the NDPs protect American Express’s unique business model and competitive position relative to Visa and Mastercard.
Dr. Eric Emch analyzed Amex’s purported market power in a two-sided platform market, the alleged anticompetitive effects from its NDPs, and the impact on competition of removing them. He testified that Amex lacked substantial market power, and that its prices had been forced down over time by competition, despite the NDPs.
Dr. Eric Gaier testified on issues of class-wide antitrust injury and damages. He testified that, in the absence of American Express’s NDPs, merchants were likely to engage in surcharging and that even limited surcharging would overwhelm any asserted benefits to class members from the removal of the NDPs. He also criticized Plaintiffs’ expert’s assumptions about purported pass through of cost savings from merchants to class members, as well as Plaintiff’s damages calculations.
Bates White supported a third expert, Stanford University Professor B. Douglas Bernheim, who testified on the role of American Express’s NDPs in enhancing competition between credit card networks and the risk of consumer abuse absent the NDPs.
The verdict is the latest in a series of legal victories for American Express defending its right to use NDPs to protect consumers and its own competitive position in the payment card industry.