To Surcharge or Not to Surcharge? That is the Question for SCOTUS

By Annie Dike, Esq.

To surcharge or not to surcharge? That is the question. However, to call your credit card prices surcharges or your cash prices discounts became the true inquiry before the Eleventh Circuit, particularly when business owners who decided to give customers notice of a credit card surcharge found themselves facing second degree misdemeanor charges, a fine, and even imprisonment. When businesses can legally charge different prices for customers who pay in cash as opposed to credit but cannot commit the mortal sin of calling these pricing practices “surcharges,” we have to wonder: Does conscience really make cowards of us all?

In Florida, prior to a November 2015 Eleventh Circuit decision on this matter, business owners could offer a discount to customers who paid in cash. They could not, however, charge an additional surcharge to customers who paid with a credit card. Aren’t those the same thing, i.e., two ways to get to the same end-point: a higher price paid by customers who choose to buy on credit? The Eleventh Circuit found this to be a distinction “in search of a difference” and, as a result, struck down Florida’s statute §501.0117 which prohibited surcharges.

The Eleventh Circuit revealed an interesting constitutional basis, though, for this decision in finding the statute violated Florida citizens’ right to free speech, specifically to choose to communicate their pricing practices as a surcharge added to credit transactions rather than a discount on cash transactions. Typically, freedom of speech prohibitions deal with religion, politics, and the like, not economics. If you’re nodding your head to this, you might fall on Florida Attorney General, Pam Bondi’s, side of this debate, as her office is now making that argument to SCOTUS in asking the high court to overturn the Eleventh Circuit’s decision claiming it is a “well-established axiom of First Amendment law” that “regulations of economic conduct do not implicate the First Amendment.”

The four businesses involved in the Eleventh Circuit case have backed Bondi’s request that SCOTUS weigh in on this free speech/surcharge issue, but they want the court to take it up on a New York case out of the Second Circuit filed prior to the Eleventh Circuit case. Their reasoning? The New York case arises out of a much more rigorous and robust prosecution of the New York statute that prohibits credit card surcharges, including a criminal prosecution. In other words, merchants want to show SCOTUS the most egregious “slings and arrows” they have had to endure as a result of these surcharge prohibition statutes. Bondi is holding firm in her push of the Eleventh Circuit case to the high court, claiming pricing practices are not free speech and that the Eleventh Circuit’s wayward decision will improperly “cast a First Amendment cloud” over a multitude of economic statutes and regulations.

While credit card surcharges are definitely a new spin on free speech, we have to wonder why there’s such a strong push to prevent merchants from calling their pricing decisions “surcharges” for credit-card users. Do the credit card lobbyists truly believe if customers are made aware of the savings they could incur by paying with cash that they will end the heartache by slaying their credit card with a bare bodkin? On the other hand, while the card-issuers are obviously looking out for themselves with this policy, pricing practice experts may say they are simultaneously looking out for us as well. It is hard to imagine a thriving economy where there is no credit, everyone pays in cash, buys only what they can afford, and buries the rest in a shoebox in the back yard.

How do you see this playing out?

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Annie Dike, Esq.

As a former trial and litigation attorney, Annie Dike has a keen eye for expert evidentiary issues and a clear voice for practical solutions.  Annie is a published author of both fiction, non-fiction, and a comprehensive legal practitioner's guide to hourly billing published by LexisNexis. Annie graduated from the University of Alabama School of Law cum laude.  While in law school, she served as Vice President of both the Bench and Bar Legal Honor Society and the Farrah Law Society and was a member of the Alabama Trial Advocacy Competition Team as well as Lead Articles Editor of The Journal of the Legal Profession.  Ms. Dike has published articles in The Alabama Lawyer and DRI MedLaw Update and has spoken on numerous legal issues at various conferences nationwide.

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