Supreme Court's Decision In Amex: Summary And Potential Implications

On June 25, the Supreme Court issued its much anticipated opinion in Ohio v. American Express Co., holding that American Express's antisteering provisions do not violate federal antitrust law (5-4, Justice Breyer dissenting, with Justices Ginsburg, Sotomayor, and Kagan joining). The case presented a number of important issues, including the analysis of competitive effects in two-sided markets and the burden-shifting framework employed in the analysis of vertical restraints. Below, we summarize the decision and provide insight into potential implications of the ruling.

The Decision

At issue in the case were American Express's ("Amex") antisteering provisions in its contracts with merchants. These provisions prohibit merchants from discouraging customers from using their Amex cards at the point of sale. According to Amex, absent these provisions, which preserve its ability to offer cardholder benefits, merchants would otherwise have an incentive to divert customers