Argument analysis: Clash over market definition, competitive harms and burden shifting
Posted by SCOUTS blog
Argument analysis: Clash over market definition, competitive harms and burden shifting
By Beth Farmer
The Supreme Court heard oral argument yesterday in Ohio v. American Express Company a challenge by 17 states to the network rules that prohibit merchants accepting Amex cards from steering customer-cardholders toward using other cards that charge the merchants lower transaction fees. My argument preview outlined the facts of the case and explained the relevant legal principles.
Justice Neil Gorsuch led off an active argument by questioning Ohio Solicitor General Eric Murphy about the central goal of the antitrust laws — protection of competition rather than specific competitors — and whether there was evidence in the record of any limitation of output. Assuming that the challenged provision increased prices to merchants, Gorsuch wanted to know whether or not there had been a net price increase to cardholders, taking into account any rewards benefits the cardholders received from using an Amex card. Murphy responded that, although it was not the plaintiff’s burden to prove competitive benefits from the challenged practice, there was record evidence that not all of the higher amount charged to merchants was transferred to cardholders. Gorsuch was not satisfied, reiterating that the question concerned net prices paid by cardholders.
Featured News
Walmex Awaits Antitrust Ruling as Mexican Regulator Probes Alleged Practices
Oct 8, 2024 by
CPI
Crypto.com Sues SEC, Alleging Regulatory Overreach in Crypto Industry
Oct 8, 2024 by
CPI
Elite US Universities Face New Antitrust Suit Over Financial Aid Practices
Oct 8, 2024 by
CPI
Kirkland & Ellis Strengthens Antitrust Practice with New Partner from FTC
Oct 8, 2024 by
CPI
TikTok Hit with Lawsuits from 13 US States and DC
Oct 8, 2024 by
CPI
Antitrust Mix by CPI
Antitrust Chronicle® – Refusal to Deal
Sep 27, 2024 by
CPI
Antitrust’s Refusal-to-Deal Doctrine: The Emperor Has No Clothes
Sep 27, 2024 by
Erik Hovenkamp
Why All Antitrust Claims are Refusal to Deal Claims and What that Means for Policy
Sep 27, 2024 by
Ramsi Woodcock
The Aspen Misadventure
Sep 27, 2024 by
Roger Blair & Holly P. Stidham
Refusal to Deal in Antitrust Law: Evolving Jurisprudence and Business Justifications in the Align Technology Case
Sep 27, 2024 by
Timothy Hsieh