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.

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