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Shepard Goldfein and Karen Hoffman Lent

On Feb. 26, 2018, the U.S. Supreme Court will hear oral arguments in Ohio v. American Express. The case was originally filed in 2010 by the U.S. Department of Justice and 17 states,[1] alleging that American Express’ use of anti-steering rules—provisions that prohibit merchants from encouraging their customers to use credit cards with lower merchant fees—were anticompetitive under Section 1 of the Sherman Act. Analyzing the restraint under the rule of reason, the district court held that the provisions reduced price competition among credit card networks and led to higher merchant fees and retail prices. The Second Circuit reversed, holding that American Express operates in a “two-sided” credit card services market in which its customers—merchants and cardholders—stand in an interdependent relationship with one another in which price changes to one group (or on one side of the market) affect the demand of the other group (or on the other side of the market). Because the district court failed to consider—and plaintiffs had not presented—evidence of the competitive effects of the challenged rules on the credit cardholder side of the market, the Second Circuit directed entry of judgment for American Express.

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