February 2018
On February 26, 2018, the United States Supreme Court heard oral argument in Ohio, et. al. v. American Express Company, et. al., No. 16-1454. This case involves allegations that American Express unlawfully restrained trade in violation of Section 1 of the Sherman Act through the use of an “anti-steering” provision in its merchant agreements. This provision prohibits merchants from directly or indirectly steering customers towards using a particular card, which the Plaintiffs allege results in decreased price competition between the various credit card companies. The issue before the Court is how to apply the antitrust law’s “rule of reason” analysis in cases implicating a two-sided market, i.e. a market in which the defendant’s business serves two different, but interrelated, groups of customers.

The Supreme Court’s decision to take up the case has garnered significant attention, not only because it stands to shed light on some of the vagaries involved in applying the rule of reason, but also because of the far reaching implications for businesses, which increasingly operate in multi-sided markets. For example, healthcare markets often have multi-sided aspects, focusing on the separate but related interests of both insurers and patients.

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