Antitrust practitioners anxiously await the outcome of the U.S. Supreme Court’s review of Ohio v. American Express, its first antitrust decision in two years and one in which SCOTUS will address the application of a critical but still murky antitrust doctrine—the “rule of reason”—in a new context. The decision will have far-reaching impact on clients in many industries and on antitrust law overall.
As an information professional, you can benefit from awareness of the latest developments in this area, as well as ways to connect practitioners with timely, authoritative antitrust sources. You’ll see some recommendations below. But first, a little background on the case.
Appealed from District Court to the Second Circuit, the case concerned whether American Express’ (“AmEx’s”) non-discrimination provisions that prohibit merchants from showing preference for other credit cards, or “steering” consumers toward using them by offering discounts or through certain other means, are an unreasonable restraint of trade.
A twist in the tale is that the credit card industry is characterized as a “two-sided market”—with two user groups (merchants and cardholders), where each finds AmEx more desirable if it attracts the other. In determining whether defendants like AmEx have violated antitrust law, courts must consider the effects in both markets—but exactly how?
Not only credit cards, but diverse other industries are two-sided markets, and the specifics of the Justices’ ruling will affect many clients.
Of even more widespread impact, generally the Court has been asked to clarify multiple aspects of rule of reason analysis, a complicated standard that balances many factors, applied when the defendant’s conduct is not obviously, or per se, illegal.
Definite answers will bring welcome relief from the gray areas, but practitioners and clients alike also fear it’s possible they could add more complexity, worsening the lengthy and costly trials that already result from the standard. Only time and SCOTUS will tell for sure—and antitrust attorneys will need to know.
Below are some ways to get the back story, stay ahead of breaking developments and consider analysis of the key concepts.
Examine Lexis Advance® case law
The case began in 2010, when the Department of Justice, along with multiple state attorneys general, filed suit against Visa, MasterCard (who both settled) and American Express. In 2015 the DOJ brought its case against AmEx in District Court before Judge Nicholas Garaufis, who ruled in favor of the DOJ that AmEx violated Section 1 of the Sherman Act.
United States v. Am. Express Co., 88 F. Supp. 3d 143 (E.D.N.Y. 2015)
In 2016 the Second Circuit, in its controversial decision, reversed the District Court, holding that it erred for not considering “net effect on both merchants and credit cardholders,” and that DOJ failed to meet its burden of proof.
United States v. Am. Express Co., 838 F.3d 179 (2d Cir. 2016)
In 2017 SCOTUS granted certiorari.
Ohio v. Am. Express Co., 138 S. Ct. 355 (2017)
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