Antitrust Law Daily Wrap Up, ANTITRUST—E.D.N.Y.: CEO’s compensation undiscoverable in anti-steering rules case, (Aug 7, 2025)

By Martin A. Steinberg, J.D.

The court will restrict Plaintiffs’ trial examination solely to CEO Stephen Squeri’s compensation tied to Amex’s performance-based salary and vested/unvested options.

The federal court in Brooklyn, New York, partially granted American Express Company’s (AmEx) motion to bar evidence of CEO Stephen Squeri’s personal wealth and compensation at the upcoming antitrust trial, currently set for August 11, 2025. The court recognized that evidence of a witness’s financial stake can bear on bias and credibility, and thus held that Plaintiffs may play Squeri’s deposition testimony establishing that every aspect of his compensation is affected by AmEx’s performance, and may briefly inquire at trial into his approximate annual income and $15 million option arrangement. However, the court excluded more detailed breakdowns of his compensation, such as the complete Proxy Statement discussion and personal-use perks, as irrelevant, unduly prejudicial, and potentially time-wasting (Moskowitz v. American Express Co. , No. 1:19-cv-00566-NGG-JRC (E.D.N.Y. Aug. 6, 2025)).

Background. Plaintiffs filed a class action on January 29, 2019, contending that American Express’s “Non-Discrimination Provisions” (or “Anti-Steering Rules”), which bar merchants from steering customers toward or disclosing the costs of rival payment networks, unlawfully restrained trade and inflated prices in the two-sided credit-card market under the Sherman and Clayton Acts, various state antitrust and consumer-protection statutes, and unjust-enrichment principles. AmEx, operating a closed-loop network that both issues cards and contracts with merchants, universally imposes these provisions in its merchant agreements.

On April 30, 2020, the court dismissed Plaintiffs' federal antitrust and unjust enrichment claims and their antitrust and/or consumer protection claims under the laws of five states. Subsequently, the court granted in part Amex's motion for judgment on the pleadings, dismissing the Plaintiffs' antitrust claims under the laws of 13 additional states and consumer protection claims under the laws of two states. Claims under the laws of 14 jurisdictions remain.

CEO deposition. Plaintiffs deposed American Express’s CEO, Stephen J. Squeri, on July 25, 2025, and plan to play excerpts of that deposition during their case-in-chief. Amex, however, intends to call Mr. Squeri live as the first witness in its defense. Concurrently, Amex has moved to preclude any evidence or argument concerning Mr. Squeri’s personal wealth or detailed compensation package, including the $15 million in outstanding stock options disclosed in Amex’s 2023 Proxy Statement, on the ground that such information is irrelevant to any issue in the case and would unfairly inflame the jury under Rules 401–403 of the Federal Rules of Evidence.

Parties’ positions. Amex objected both to Plaintiffs’ proposed use of deposition pages which delve into Mr. Squeri’s compensation and to any live questioning on the same subjects. Amex characterized a focus on the precise amount and components of his compensation as an impermissible “appeal to class prejudice,” serving only to distract or prejudice jurors rather than shed light on any material fact.

After Plaintiffs agreed to withdraw questions about Mr. Squeri’s trial preparation, Amex, acknowledging the court’s inclination to allow some inquiry, offered to limit permissible testimony to his base salary of $1.5 million for 2022, and to his statement that “every aspect of my compensation is affected by my company’s performance.” Amex maintained that these limited disclosures sufficed to address any potential bias without delving into the more sensational details of stock options or other incentive-based pay.

Plaintiffs, for their part, insist that details of Mr. Squeri’s compensation are directly probative of his bias, arguing that the magnitude of his financial stake in Amex’s performance could influence his willingness to testify favorably. Quoting United States v. Harris, 185 F.3d 999, 1008 (9th Cir. 1999), that some witnesses “would lie under oath for a lot of money but not for a little,” they contended that the specific amount and structure of his compensation bear on his credibility. They also reject any claim of unfair prejudice, noting that Mr. Squeri is not a party and that they intend only to explore income directly tied to his performance, not his broader personal wealth. Accordingly, Plaintiffs argued they must be allowed to cross-examine him fully on his Amex-related income.

Relevance. The court held that evidence of Mr. Squeri’s compensation, including both his substantial base salary and the $15 million in stock options that hinge on Amex’s stock performance, is admissible to impeach his credibility. Such financial information is probative of bias because it “might lead [him] … to slant, unconsciously or otherwise, his testimony” in favor of Amex, as recognized in United States v. Abel, 469 U.S. 45, 52 (1984).

More specifically, the court reasoned that knowing the precise magnitude of Mr. Squeri’s income and contingent compensation allows the jury to gauge his personal stake: if Plaintiffs prevail and Amex’s revenues (and thus stock price) decline, his options may never vest. This potential loss provides a clear motive to testify favorably to Amex, making the details of his compensation particularly relevant to assessing his impartiality.

Finally, the court noted that this principle is well established in the Second Circuit and elsewhere: inquiry into a witness’s financial interest in a case is “highly relevant” and “essential if bias is to be uncovered.” Accordingly, subject to appropriate limiting instructions and without unduly prejudicial elaboration, the jury may be shown Mr. Squeri’s compensation details to test for possible bias.

Balancing test. The court applied the Rule 403 balancing test and found that the probative value of Mr. Squeri’s compensation details, showing his direct financial stake in Amex’s performance, outweighs any risk of unfair prejudice or jury distraction. His compensation is a factual matter and, by itself, does not constitute an improper appeal to class-based bias; any attempt by Plaintiffs to argue that jurors should side with the “little guy” against a wealthy defendant can be curtailed by timely objections and limiting instructions.

To prevent misuse, the court will restrict examination solely to compensation tied to Amex’s performance-based salary and vested/unvested options, and bar broader discussions of Mr. Squeri’s general wealth. Plaintiffs expressly disclaimed any intent to portray him simply as a “rich” adversary, focusing instead on how his incentives might bias his testimony. The court further noted that limiting the scope of questioning will minimize any undue consumption of trial time or risk of juror sympathy for Plaintiffs.

In distinguishing this case from Second Circuit precedents where counsel repeatedly emphasized a party’s millionaire status to inflame class prejudice, the court observed that Plaintiffs seek only to uncover potential bias, not to denigrate wealth per se. Accordingly, a narrowly tailored inquiry into Mr. Squeri’s Amex-related income is permitted to probe for bias without opening the door to unfair prejudice.

The court carved out a narrowly tailored portion of Mr. Squeri’s deposition that Plaintiffs may present at trial. Specifically, Plaintiffs may play the testimony from page 76, line 9, through page 78, line 22. This segment includes Mr. Squeri’s acknowledgment that “every aspect of my compensation is affected by my company’s performance.” Still, it omits any direct reference to Amex’s Proxy Statement or a detailed breakdown of his pay.

Excluded evidence. The court excluded the deposition transcript from line 78:23 onward, which included discussions of the Proxy Statement and the precise components of Mr. Squeri’s annual income, because those details are both irrelevant to the issue of bias and pose a substantial risk of wasting time or unfairly prejudicing the jury. Even seemingly innocuous topics, such as his company-provided home-security budget or personal use of the corporate plane, were deemed beyond the permissible scope.

Guidance. When Mr. Squeri testifies live, Plaintiffs may briefly inquire as to his approximate annual income in broad terms, without delving into line-item specifics. The court underscored that “the precise breakdown of his annual income … is irrelevant and risks wasting time,” and thus must remain off-limits during cross-examination.

In addition, the court granted Plaintiffs a limited opportunity to question Mr. Squeri about his $15 million stock-option arrangement, acknowledging its relevance to his financial stake, while excluding the related deposition excerpts. This will ensure that the jury learns that significant incentive exists, without burdening them with ancillary or potentially inflammatory minutiae.

Finally, the court likened these restrictions to the limits placed on Amex’s deposition inquiries into the Class Representatives’ counsel relationships: both lines of questioning “should be limited and to the point,” focused solely on uncovering bias rather than inviting collateral or prejudicial side issues.

The Case is No. 1:19-cv-00566-NGG-JRC.

Judge: Garaufis, N.

Attorneys: Daniel Cohen (Cuneo Gilbert & Laduca, LLP) for David Moskowitz. Peter T. Barbur (Cravath, Swaine & Moore LLP) for American Express Co. and American Express Travel Related Services Co., Inc.

Companies: American Express Co.; American Express Travel Related Services Co., Inc.

Cases: Antitrust NewYorkNews GCNNews