11
Jan/17

$102, which includes $2 for Credit Cards vs. $102, with a $2 Discount for Cash – SCOTUS Oral Argument Transcript


cash credit

From blog post by Jane Yakowitz frames the issue in Expressions Hair Design v. Schneiderman (heard yesterday by SCOTUS) as follows:

Imagine an electronics store in New York needs to recoup $100 on the sale of a television. If the store owner labels the television with a sticker price of “$100 plus $2 for credit card sales” or “$102, which includes $2 for credit card sales,” the owner risks jail time. But if the label reads “$102, with a $2 discount for cash sales,” the store owner is in the clear.

Ultimately, that is what this case is about: the criminalization of truthful commercial speech. New York has enacted a law that prohibits sellers from announcing a surcharge for credit-card sales. This surcharge ban does not mean, however, that sellers must charge identical prices for credit-card sales and cash sales. Instead, New York enforces its surcharge ban by instructing sellers to inflate their normal sticker prices and then announce “discounts” from these prices for cash sales. Sellers must then tread carefully in explaining this situation to inquiring customers in order to avoid referring to a surcharge and thus committing a crime. See id. The most sellers can disclose is a half-truth: that their sticker prices do not apply to those who pay with cash.

The oral argument transcript is below.

Prof Tushnet on the 2d Circuit decision here.

Bonus resource: “Priceless? The Competitive Costs of Credit Card Merchant Restraints” by Adam J. Levitin

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