This Document Relates to:All Individual Merchant Plaintiff Actions08-CV-2315; 08-CV-2316; 08-CV-2317; 08-CV-2380; 08-CV-2406; 11-CV-0337; 11-CV-0338.MEMORANDUM & ORDER In this set of consolidated antitrust actions (the “MP Actions”), the Merchant Plaintiffs (the “MPs”)1 challenge under Sections 1 and 2 of the Sherman Antitrust Act, 15 U.S.C. §§1-2, the contracts that they have entered into with Defendants American Express Travel Related Services Company, Inc. and American Express Company (together, “Amex”). (See Am. Compl. (Dkt. 814).) Specifically, the MPs challenge Amex’s anti-steering rules, referred to as the Non-Discrimination Provisions (“NDPs”), which are contained in merchant agreements entered into between Amex and each MP. The MPs seek an order enjoining Amex from enforcing the NDPs, as well as treble damages for the injuries the MPs allege they have sustained on account of the NDPs. (See id. 11.)Pending before the court is Amex’s motion seeking summary judgment as to the MPs’ allegations of a one-sided market and the MPs’ allegations of an Amex-only market. (See Notice of Mot. to Dismiss (Dkt. 835).) For the following reasons, Amex’s motion is GRANTED.I. BACKGROUNDThe facts of this case-the procedural history, the restraints on competition, the workings of the credit-card market in general and Amex’s platform in particular, etc. — have been discussed at great length in this court’s previous opinions in this matter and in the related case brought by the federal government. See In re Am. Exp. Anti-Steering Rules Antitrust Litig. (In re Amex), No. 11-MD-2221 (NGG), 2016 WL 748089, at *1-4 (E.D.N.Y. Jan. 7, 2016); United States v. Am. Exp. Co. (U.S. v. Amex), 88 F. Supp. 3d 143, 149-67 (E.D.N.Y. 2015), rev’d, 838 F.3d 179 (2d Cir. 2016), aff’d sub nom. Ohio v. Am. Exp. Co. (Ohio), 138 S. Ct. 2274 (2018). The court repeats certain facts and aspects of the procedural history here as necessary to introduce and to decide the instant motion.A. Factual OverviewThe MPs are retail merchants that have each entered into an American Express Card Acceptance Agreement (the “Agreement”) with Amex. (Am. Compl. 1.) In those Agreements, “and in virtually every other such Agreement that Amex has entered into with a merchant,” Amex has included the NDPs, which prevent the merchant “from differentially pricing the use of payment cards, stating a preference for any form of payment, or allowing the retail customer to use different payment cards on differing terms or conditions established by the merchant.” (Id.; see id.
2-3 (describing the NDPs).) The MPs claim that these restraints are anticompetitive “because they nullify the operation of the price mechanism, impede competition among credit card networks and suppress output.” (Id. 4; see id.
