A recent New York Law Journal story, “AmEx Agrees to Pay States’ Legal Fees if Appeal Fails,” reports that American Express has agreed to pay 17 states $3.65 million in legal fees if the company fails in its appeal of a judge’s decision that the company’s anti-steering rules breached antitrust laws.  If American Express exhausts its challenge to the findings and orders of the Eastern District Judge Nicholas Garaufis and does not obtain a reversal, a stipulation filed said the company will pay the sum, plus $180,000 in costs.

In United States v. American Express Company, 10-cv-4496, the federal government and 17 states sued American Express, Visa and MasterCard over anti-steering practices.  Visa and MasterCard settled in 2011.

The stipulation will be void it there is an appellate-level reversal of Garaufis’ judgment.  If there is a modification, but no reversal and the American Express agrees the plaintiffs states are “substantially prevailing parties,” it will pay the sum and the states will decide how to share the money.

If there is a modification, but no agreement as to whether the states substantially prevail, a court will decide the matter, the stipulation states.  Meanwhile, American Express has asked Garaufis to issue a stay on the injunction during the appeal.  The states, federal government and certain businesses and trade associations oppose the stay request, which is pending.