INTERNATIONAL: USA - ANTITRUST - MERGERS - MARKET DEFINITION - EFFECT ON COMPETITION

USA: We’ve seen enough – It is time to abandon Amex and start over on two-sided markets

When a U.S. district court recently applied the U.S. Supreme Court’s Ohio v. American Express (“Amex”) opinion to an antitrust merger challenge in the airfare distribution industry, the analysis led to the absurd conclusion that market definition requires courts to ignore existing competition. The opinion fails on its own terms, because Amex does not require this result. But the court’s error illustrates Amex’s fundamental flaws. Amex steers antitrust law toward an analytical dead end by converting market definition from a neutral tool for illuminating competitive effects into a tool for hiding them. It is already clear, after only two years, that Amex should be narrowly cabined by the federal courts or else legislatively overturned by Congress.

1. Judge Leonard Stark’s April 8 district court opinion rejecting a Department of Justice (DOJ) bid to block the merger of Sabre and Farelogix shows why it is time to set aside the Supreme Court’s decision in Ohio v. American Express (“Amex”). [1] This commentary highlights glaring flaws in Judge Stark’s opinion, which the DOJ will be appealing in the Third Circuit. But it argues that, while Sabre-Farelogix was wrongly decided, the decision is a symptom. Amex’s sui generis antitrust rules for an amorphous category of two-sided markets are the root pathology. 2. Amex steers antitrust law toward an analytical dead end. Contrary to the rule that antitrust law protects competition, not competitors, Amex protects competitors that have platform business models at the expense of competition on

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  • American Antitrust Institute (Washington D.C.)

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Randy Stutz, USA: We’ve seen enough – It is time to abandon Amex and start over on two-sided markets, September 2020, Concurrences N° 3-2020, Art. N° 95410, www.concurrences.com

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