At the end of last year, the U.S. Court of Appeals for the Second Circuit considered two appeals concerning standing of plaintiffs to seek recovery under the Clayton Act for antitrust violations: In re Am. Express Anti-Steering Rules Antitrust Litig., 19 F.4th 127 (2d Cir. 2021) (Amex) and Schwab Short-Term Bond Market Fund v. Lloyds Banking Group PLC, — F.4th —, 2021 WL 6143556 (2d Cir. Dec. 30, 2021) (Schwab).

In Amex, Circuit Judges Denny Chin, Joseph Bianco, and Steven Menashi unanimously held that merchants who did not accept payment via American Express (Amex) and therefore had no contractual agreement with Amex did not have standing to sue Amex for harm caused by Amex’s contractual anti-steering provisions.

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