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University of Miami Law School

Business Organizations Law

Sherman Act

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Applying The Rule Of Reason To Two–Sided Platform Businesses, David S. Evans, Richard Schmalensee Apr 2018

Applying The Rule Of Reason To Two–Sided Platform Businesses, David S. Evans, Richard Schmalensee

University of Miami Business Law Review

In recent years, the federal courts’ analysis of the competitive effects of conduct challenged under the Sherman Act’s rule of reason, which generally includes market definition as a critical step, has been properly guided by sensitivity to business reality and sound economic analysis of the conduct at issue. When it comes to two–sided platforms, the courts should adhere to that same flexible but principled approach and avoid rigid alternatives that would apply regardless of the platform, conduct, or fact–pattern.

In Ohio v. American Express Co., (Case No. 16–1454), now before the U.S. Supreme Court, the ...


Market Power And American Express, John B. Kirkwood Apr 2018

Market Power And American Express, John B. Kirkwood

University of Miami Business Law Review

The Second Circuit ruled that American Express did not have market power because it operated in a two-sided market and any leverage it exercised over merchants derived from its successful competition for cardholders. As a result, the relevant market had to include both sides of a credit card transaction, the company’s market share was modest, and it could not exploit both merchants and cardholders. In Market Power and Antitrust Enforcement (forthcoming in B.U. L. REV.), I propose a new approach that infers market power from the likely effects of the challenged conduct. This approach shows that American Express ...


Assessing The Competitive Effects Of Surcharging The Use Of Payment Mechanisms, Steven Semeraro Apr 2018

Assessing The Competitive Effects Of Surcharging The Use Of Payment Mechanisms, Steven Semeraro

University of Miami Business Law Review

The Department of Justice’s theory of liability in its case attacking the non–discrimination provisions in American Express’s merchant contracts contends that point–of–sale competition on the price of making a purchase with a credit card is an instrument creating economic efficiency. That is, the economy would run more efficiently, and consumers would be better off, if merchants were free to charge variable prices for different types of credit cards. After all, charging different prices for using different types of payment mechanisms appears to be just another form of presumptively positive price competition.

The Second Circuit rejected ...