Open Markets Statement on Ohio v. American Express Decision
June 25, 2018
In response to the Supreme Court’s decision in Ohio v. American Express, the Open Markets Institute released the following statement:
In Ohio v. American Express Co., a 5 to 4 majority of the Supreme Court has erected a huge and intellectually unjustifiable obstacle to effective antitrust enforcement. Departing from principles of antimonopoly enforcement that trace back more than a century, the Court introduced a special rule for so-called “two-sided” markets, greatly raising the burden that plaintiffs must carry at the very earliest stages of litigation. Today’s decision empowers monopolies to concentrate yet more political and economic power and control, even as the American people suffer from the increasingly harmful effects of a historic monopoly problem.
As the Open Markets Institute explained in its amicus brief, U.S. law has traditionally viewed credit card corporations (such as American Express) and communications corporations (like AT&T) as intermediaries and facilitators of other people’s business. This decision however, establishes these platforms as de facto regulators of these markets. Worse, the specious reasoning of the majority means that even such corporations as airlines and chicken processors can now reasonably claim their markets are “two-sided,” and thereby win themselves more favorable review in many antitrust cases.
“The Supreme Court’s decision risks shielding from effective antitrust scrutiny every dominant tech platform in America, including Amazon, Google, and Facebook,” said Lina Khan, director of legal policy at the Open Markets Institute. “Not only is the new rule unjustified, it is pegged to a concept that is amorphous and potentially unbounded, and may conceivably exempt all sorts of dangerous behavior from effective antitrust enforcement.”
Sandeep Vaheesan, policy counsel at the Open Markets Institute, added: “For antitrust plaintiffs, the new legal burdens further reduce the already slim chances of success in court. The costs and complexity plaguing antitrust litigation will only become significantly worse following today’s decision.”
The Open Markets Institute calls on the Department of Justice and Federal Trade Commission to use their full legal authorities—including amicus advocacy, rule-making, and the writing of new guidelines—to limit the damage from this poorly reasoned decision, which poses huge dangers to American business and to American democracy. Open Markets also calls on Congress to take immediate action to fix the Court’s egregious error.