Surcharging arguments in Supreme Court.

Tuesday, January 10, marks when the U.S. Supreme Court will hear arguments pertaining to a case by a group of New York merchants who claim New York’s “no surcharge” law violates their First Amendment free speech rights. Ronald Mann, a professor of law at Columbia, provided an argument preview last week, digging into the merchants’ claim and New York’s defense. Below is an excerpt from his post and the link to the complete content, which I encourage you to read.


Visit the Surcharge News webpage to see the March 29, 2017, Supreme Court outcome.

In Review

When I reported last year that the U.S. Supreme Court (“Court”) agreed to hear this case, I observed what could happen if the merchants are successful. Specifically, it sets the stage for the removal of “no surcharge” laws in the handful of states, including New York, that have such laws. This would not necessarily lead to a pike in merchants surcharging for credit card use, but it is certainly something to watch. It could be days or weeks before the Court renders a decision. Stay tuned to Recharged Education! 

The surcharge battle has been a long one. We now await the outcome of the case presented to the U.S. Supreme Court.

The surcharge battle has been a long one. We now await the outcome of the case presented to the U.S. Supreme Court.

Excerpt from Ronald Mann's Post

Argument preview: Merchants bring payment-card interchange wars to the Supreme Court

The remarkable volume of amicus briefs underscores the high stakes in play: twelve in support of the merchants, ten in support of New York, and one (from the United States) in support of neither party. In part, the variegated interests reflect the cross-cutting concerns that the litigation raises. Because the case turns on the doctrinal framework for assessing commercial speech under the First Amendment, First Amendment scholars are concerned, weighing in with dueling amicus briefs on each side of the case. Because a central debate in the case involves the idea that consumers react differently to “discounts” and “surcharges,” behavioral economists have a lot to say; competing groups of economics scholars also chime in on both sides of the matter. Consumer advocates concerned about the market power of credit-card networks appear in support of the merchants. Other consumer advocates join state governments in supporting New York, attempting to ensure that states are free to adopt consumer-protective pricing regulations. And that doesn’t even get to the briefs from businesses with a relatively direct interest in the question as a matter of profit and loss.

Access the complete content, including his conclusion on the main thing to watch.

About the Author

Blog post author Lynn Larson, CPCP, is the founder of Recharged Education. With more than 15 years of Commercial Card experience, her mission is to make industry education readily accessible to all. Learn more

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