Business owners may lose money due to American Express surcharges

We look forward to working with you to pursue your claims against American Express Company and American Express Travel Related Services Co., Inc. (collectively, “AMEX”) regarding AMEX’s anti-steering rules that prevent merchants from giving customers incentives to use payment products less expensive than AMEX branded cards. We are going to pursue claims against AMEX for any anti-competitive behavior that is a violation of Section One of the Sherman Anti-Trust Act and any applicable state law claims that are similar. This is an agreement (the “Agreement”) between you and Milberg Coleman Bryson Phillips Grossman LLC (“MCBPG”). MCBPG attorneys as well as attorneys from White Street Partners LLP (“WSP”) (collectively, WSP And MCBPG are referred to as “the Attorneys”) will be primarily responsible for your case.

You understand and authorize the Attorneys to proceed with filing claims on behalf of your business as an individual arbitration, rather than in a court. You also are authorizing us to contact your business’ payment processor to confirm the amount that may have been charged by AMEX and any other payment network, such as Visa, Mastercard, and Discover. You also represent that you are authorized on behalf of your business entity to sign this agreement.

You also authorize the Attorneys to negotiate potential settlement on behalf of your business, but the final decision on accepting or rejecting a settlement offer rests with you. In the event that the Attorneys reach a proposed settlement of your case along with the cases of other merchants, the Attorneys will convey the proposed settlement to you at the email address you have provided. You will then have 30 days from that email to reject any proposal; otherwise, it will be deemed accepted. In addition, the Attorneys will be available to communicate with you concerning the terms of any settlement offers and to provide their professional advice regarding the terms and potential outcomes.

The Attorneys will handle the above-referenced matter based upon a contingent fee arrangement wherein our collective fee will be forty percent (40%) of any recovery obtained in this matter, whether it be through settlement or judgment. The Attorneys reserve the right to associate any co-counsel that we deem advisable or necessary for the proper handling of your claim. Our fee will be split among the Attorneys as well as any firm(s) we associate. This arrangement would not include any appeal that may be subsequently taken by any party. Further, if the arbitrator rules in your favor, we may be able to recover attorneys’ fees from AMEX on your behalf. Should we be successful in doing so, our fee shall be the greater of: (1) total attorneys’ fees awarded by the arbitrator or court; or (2) forty percent (40%) of the total recovery (including any award of attorneys’ fees).

During this litigation, the Attorneys will incur expenses for copies, legal research, travel, etc. Typically, these costs are paid by the client. However, we will advance all costs incurred by the Attorneys, such as copies, postage, express delivery charges, legal research (e.g., Westlaw, LexisNexis, PACER), travel expenses, etc. The Attorneys will also incur costs that they do not generate, such as the filing fees with the arbitral organization or court, costs of the experts, legal process outsourcing companies (i.e., service of process, document production, trial exhibits), and deposition costs (including transcripts). The Attorneys will be reimbursed for these costs if, and only if, they ultimately obtain a recovery. Advanced costs are deducted from the recovery after the calculation of the contingent fee.

Please understand that the Attorneys may at any time recommend that the case not be continued for good and sufficient reasons including, but not limited to, little or no likelihood for success on the claims’ merits, or the lack of available sums, whether they be the assets of AMEX or applicable insurance coverage. If the Attorneys should make such a recommendation to discontinue, we may withdraw our representation upon due notice.

Also understand that your file and any materials compiled by the Attorneys during representation will remain the property of the Attorneys upon conclusion of the representation. The Attorneys will cooperate fully in furnishing a copy of relevant materials from the file to any successor attorney who you may retain. Additionally, the Attorneys will maintain the file on this matter for at least six (6) years. Should you wish to obtain any information or materials from the file, including personal items furnished to the Attorneys in the handling of your case (i.e., documents, photographs), these will be returned to you by request if the request is made within six (6) years after the conclusion of the representation.

Finally, the Attorneys do not make any promises or guarantees regarding the outcome or conclusion of your claims.

If you have any questions about the foregoing, please advise. The Attorneys would appreciate your returning a signed copy of this engagement letter to us for our files.

We look forward to working with you on this matter.

Sincerely,

Scott C. Harris

VIA FEDERAL EXPRESS

American Express Company
Attn: Laureen E. Seeger
World Financial Center
200 Vesey St.
New York, NY 10285-3106

RE: NOTICE OF COMMERCIAL DISPUTE REGARDING AMERICAN EXPRESS COMPANY’S VIOLATIONS OF ANTITRUST LAWS

To Whom It May Concern:

Pursuant to American Express Company and American Express Travel Related Services Co., Inc.’s (collectively, “AMEX”) U.S. Merchant Operating Guide in effect on the date of this letter, I am writing to provide notice of my individual commercial dispute against AMEX resulting from its violations of the Clayton Antitrust Act of 1914, 15 U.S.C. §§ 12-27 (“Clayton Act”), the Sherman Antitrust Act, 15 U.S.C. §§ 1-38 (“Sherman Act”) and the New York Donnelly Antitrust Act, N.Y. Gen. Bus. Law §§ 340, et seq. (“Donnelly Act”), in connection with its Anti-Steering Rules.
Specifically, I am pursuing claims against AMEX regarding its rules that prevent Amex-accepting merchants from giving customers incentives to use payment products that are less expensive than AMEX-branded cards. This action arises out of In re American Express Anti-Steering Rules Antitrust Litig., 11-MD-2221 (E.D.N.Y.), which involved AMEX’s Anti-Steering Rules representing a vertical restraint that has had – and continues to have – the clear effect of restraining inter-brand competition among credit-card networks in the market for credit-card acceptance services. To this end, I am providing my business’ information in a good faith effort to resolve my claims against AMEX.
I allege that AMEX’s rules are anti-competitive and violate Section 1 of the Sherman Act as well as the Donnelly Act. To compromise my claim, I demand a full refund of the fees paid by my business in processing AMEX transactions, plus reasonable attorneys’ fees and costs to be paid on my behalf to my attorneys, who are copied on this letter, in order to fully resolve the dispute detailed in this letter. In the event that AMEX fails to resolve my claim within 30 days of your receipt of this letter, I am prepared to initiate individual commercial arbitration with AAA or JAMS. If you consider this letter to be deficient in any manner, please let me and my attorneys know so we can remedy the deficiency.
Finally, I want to inform you that my attorneys at Milberg currently represent thousands of additional clients who are also victims of AMEX’s illegal conduct, as described above, and have claims similar to mine. It is my understanding that additional clients are retaining Milberg on a daily basis. Please contact my attorneys, who are copied on this letter, regarding this matter. Otherwise, they will proceed with initiating an individual commercial arbitration on my behalf.
I look forward to hearing from you regarding this matter.