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Ohio, et al. v. American Express Company, et al.

Paid petition · United States Court of Appeals for the Second Circuit, No. 15-1672 · judgment September 26, 2016

Decided · June 25, 2018
At-filing estimate: 2% cert probability

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

Question presented

This case asks how Section 1 of the Sherman Act, which bans unreasonable restraints of trade, applies to "two-sided" platforms that unite distinct customer groups. Such platforms are ubiquitous, ranging from eBay (serving buyers and sellers), to newspapers (serving readers and advertisers). Here, credit-card networks bring cardholder customers together with merchant customers for ordinary transactions. When doing so, Respondents American Express Company and American Express Travel Related Services Company ("Amex'') contractually bar merchant customers from steering cardholder customers to credit cards that charge merchants lower prices. Applying the "rule of reason," the district court held that: (1) the Government proved that Amex's anti-steering provisions were anticompetitive because they stifled competition among credit-card companies for the prices charged to merchants, and (2) Amex failed to establish any procompetitive benefits. The Second Circuit reversed. It held that, to prove that the anti-steering provisions were anticompetitive (and so to transfer the burden of establishing procompetitive benefits to Amex), the Government bore the burden to show not just that the provisions had anticompetitive pricing effects on the merchant side, but also that those anticompetitive effects outweighed any benefits on the cardholder side. The question presented is: Under the "rule of reason," did the Government's showing that Amex's anti-steering provisions stifled price competition on the merchant side of the credit- card platform suffice to prove anticompetitive effects and thereby shift to Amex the burden of establishing any procompetitive benefits from the provisions?

Counsel of record

For petitioner
Eric E. Murphy
Ohio State Solicitor

For respondent
Nancy Bonnell
Antitrust Unit Chief

Case

Subject area
Economic Activity (estimated from the questions presented, in the Supreme Court Database’s categories)

Conference history
Distributed for 3 conferences

Amicus briefs
8 cert-stage · 22 merits
(15 supporting pet./neither, 7 respondent)

Linked docket
16A923

Orders
Order list, October 16, 2017 · Certiorari granted
Miscellaneous order, February 16, 2018

Argument & decision

Argued February 26, 2018 — Eric E. Murphy · Malcolm L. Stewart · Evan R. Chesler. Listen and read along · the Court’s audio

Decided June 25, 2018. Opinion by Thomas.

Proceedings

  1. Aug 21 2018
    Record from the U.S.C.A. 2nd Circuit has been returned.
  2. Jul 27 2018
    JUDGMENT ISSUED.
  3. Jun 25 2018
    Adjudged to be AFFIRMED. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Alito, and Gorsuch, JJ., joined. Breyer, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined.
  4. Feb 26 2018
    Argued. For petitioners and state respondents in support: Eric E. Murphy, State Solicitor, Columbus, Ohio. For respondent United States in support of petitioners: Malcolm L. Stewart, Deputy Solicitor General, Department of Justice, Washington, D. C. For respondents: Evan R. Chesler, New York, N. Y.
  5. Feb 16 2018
    Motion for divided argument filed by the Solicitor General GRANTED.
  6. Feb 15 2018
    Reply of respondent United States filed. (Distributed)
  7. Feb 14 2018
    Record received from the U.S. Dist. Court Eastern Dist. of New York. The record has some Sealed Documents and is electronic.
  8. Feb 12 2018
    Reply of petitioners Ohio, et al. filed. (Distributed)
  9. Jan 23 2018
    Brief amicus curiae of Computer & Communications Industry Association filed. (Distributed)
  10. Jan 23 2018
    Brief amicus curiae of The Australian Taxpayers' Alliance filed. (Distributed)
  11. Jan 23 2018
    Brief amicus curiae of Pharmaceutical Research and Manufacturers of America filed. (Distributed)
  12. Jan 23 2018
    Brief amici curiae of Prof. David S. Evans and Prof. Richard Schmalensee filed. (Distributed)
  13. Jan 23 2018
    Brief amicus curiae of The Clearing House Association L.L.C. filed. (Distributed)
  14. Jan 23 2018
    Brief amici curiae of Antitrust Law & Economics Scholars filed. (Distributed)
  15. Jan 23 2018
    Brief amici curiae of J. Gregory Sidak and Robert D. Willig filed. (Distributed)
  16. Jan 18 2018
    Record received from the U.S.C.A. 2nd Circuit 1 box, this record is Sealed.
  17. Jan 17 2018
    Motion for divided argument filed by the Solicitor General.
  18. Jan 16 2018
    Record received from the U.S.C.A. 2nd Circuit is electronic.
  19. Jan 16 2018
    Brief of respondents American Express Co., et al. filed. (Distributed)
  20. Jan 10 2018
    Record requested from the U.S.C.A. 2nd Circuit.
  21. Jan 05 2018
    CIRCULATED
  22. Dec 20 2017
    SET FOR ARGUMENT ON Monday, February 26, 2018.
  23. Dec 14 2017
    Brief amici curiae of 20 Merchants as Amici Curiae in Support of Petitioners filed.
  24. Dec 14 2017
    Brief amicus curiae of The Australian Retailers Association filed.
  25. Dec 14 2017
    Brief amici curiae of Ahold U.S.A., Inc.; Albertsons LLC; The Great Atlantic and Pacific Tea Company, Inc.; H.E. Butt Grocery Co.; Meijer, Inc.; Publix Super Markets, Inc.; Raley's; Rite Aid Corporation; Safeway, Inc.; Supervalu, Inc.; and Walgreen Co. filed.
  26. Dec 14 2017
    Brief amici curiae of International Air Transport Association and Airlines for America filed.
  27. Dec 14 2017
    Brief amicus curiae of Discover Financial Services filed.
  28. Dec 14 2017
    Brief amici curiae of United States Public Interest Research Group Education Fund, Inc.; Center for Responsible Lending; Consumer Federation of America; Consumers Union; National Association of Consumer Advocates; National Consumer Law Center; Public Citizen, Inc. filed.
  29. Dec 14 2017
    Brief amicus curiae of Verizon Communications Inc. in support of neither party filed.
  30. Dec 14 2017
    Brief amici curiae of New York, Alaska, California, Delaware, Hawai‘i, Indiana, Kentucky, Maine, Massachusetts, Minnesota, Mississippi, New Mexico, North Carolina, Oregon, Pennsylvania, South Carolina, Washington, Wisconsin, and the District of Columbia filed.
  31. Dec 14 2017
    Brief amicus curiae of American Antitrust Institute filed.
  32. Dec 14 2017
    Brief amici curiae of John M. Connor, et al. filed.
  33. Dec 14 2017
    Brief amici curiae of Wal-Mart Stores, Inc., The Home Depot, Inc., Target Corporation, Sears Holding Management Corporation, Jo-Ann Stores, LLC, and Merchant Trade Associations filed.
  34. Dec 14 2017
    Brief amicus curiae of Open Markets Institute filed.
  35. Dec 14 2017
    Brief amicus curiae of The Merchant Advisory Group filed.
  36. Dec 14 2017
    Brief amici curiae of American Medical Association and Ohio State Medical Association filed.
  37. Dec 14 2017
    Brief amici curiae of 28 Professors of Antitrust Law filed.
  38. Dec 14 2017
    Amicus brief of 27 Professors of Antitrust Law not accepted for filing. (December 15, 2017)
  39. Dec 13 2017
    Blanket Consent filed by Respondent, State of Nebraska
  40. Dec 12 2017
    Blanket Consent filed by Respondent, State of Tennessee
  41. Dec 07 2017
    Brief of respondent United States in support of petitioners filed.
  42. Dec 07 2017
    Joint appendix filed. (Statement of costs filed.)
  43. Dec 07 2017
    Brief of petitioners Ohio, et al. filed.
  44. Nov 21 2017
    Blanket Consent filed by Respondents, American Express Co., et al.
  45. Nov 21 2017
    Blanket Consent filed by Respondent, State of Missouri
  46. Nov 13 2017
    Blanket Consent filed by Respondent, United States
  47. Nov 01 2017
    The time to file the joint appendix and petitioners' brief on the merits is extended to and including December 7, 2017.
  48. Nov 01 2017
    The time to file respondents' briefs on the merits is extended to and including January 16, 2018.
  49. Oct 24 2017
    Blanket Consent filed by petitioners Ohio, et al.
  50. Oct 16 2017
    Petition GRANTED.
  51. Oct 10 2017
    DISTRIBUTED for Conference of 10/13/2017.
  52. Oct 02 2017
    DISTRIBUTED for Conference of 10/6/2017.
  53. Sep 06 2017
    DISTRIBUTED for Conference of 9/25/2017.
  54. Sep 05 2017
    Reply of petitioner Ohio, et al. filed. (Distributed)
  55. Aug 21 2017
    Brief of respondent American Express Company in opposition filed.
  56. Aug 07 2017
    Brief of respondent United States in opposition filed.
  57. Jul 06 2017
    Order further extending time to file the response of American Express Company, et al. to petition to and including August 21, 2017.
  58. Jul 06 2017
    Brief amici curiae of Ahold U.S.A., Inc., et al. filed.
  59. Jul 06 2017
    Brief amici curiae of John M. Connor, et al. filed.
  60. Jul 06 2017
    Brief amicus curiae of Discover Financial Services filed.
  61. Jul 06 2017
    Brief amicus curiae of Retail Litigation Center, Inc. filed.
  62. Jul 06 2017
    Brief amici curiae of Former Federal Antitrust Officials filed.
  63. Jul 06 2017
    Brief amicus curiae of Southwest Airlines Co. filed.
  64. Jul 06 2017
    Brief amicus curiae of United States Public Interest Research Group Education Fund, Inc. filed.
  65. Jul 06 2017
    Brief amici curiae of 25 Professors of Antitrust law filed.
  66. Jun 28 2017
    Order extending time to file response to petition to and including August 7, 2017, for all respondents.
  67. Jun 26 2017
    Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for respondent State of Missouri.
  68. Jun 23 2017
    Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for respondent State of Nebraska.
  69. Jun 22 2017
    Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for respondent United States.
  70. Jun 22 2017
    Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for respondents American Express Company, et al.
  71. Jun 22 2017
    Consent to the filing of amicus curiae briefs, in support of either party or neither party, received from counsel for respondent State of Arizona.
  72. Jun 19 2017
    Waiver of right of respondent State of Tennessee to respond filed.
  73. Jun 16 2017
    Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the respondent Texas.
  74. Jun 13 2017
    Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for State petitioners Ohio, Connecticut, Idaho, Illinois, Iowa, Maryland, Michigan, Montana, Rhode Island, Utah and Vermont.
  75. Jun 02 2017
    Petition for a writ of certiorari filed. (Response due July 6, 2017)
  76. Apr 24 2017
    Application (16A923) granted by Justice Ginsburg extending the time to file until June 2, 2017.
  77. Apr 20 2017
    Application (16A923) to extend further the time from May 5, 2017 to June 2, 2017, submitted to Justice Ginsburg.
  78. Mar 24 2017
    Application (16A923) granted by Justice Ginsburg extending the time to file until May 5, 2017.
  79. Mar 22 2017
    Application (16A923) to extend the time to file a petition for a writ of certiorari from April 5, 2017 to May 5, 2017, submitted to Justice Ginsburg.