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Antitrust Questions Posed By The Justices In AmEx Case

Law360 (February 28, 2018, 1:23 PM EST) -- The oral argument in Ohio v. American Express went as expected, with some U.S. Supreme Court justices expressing very strong preferences for either side. The outcome is uncertain for this important case that could decide the standard by which complex, “two-sided market” antitrust claims will be litigated.

Brief Background

Just some minimal background to start with. American Express charges merchants a higher fee than Visa, Mastercard or Discover. AmEx also imposes “nondiscrimination provisions” (NDPs) in its merchant contracts. Under these, a merchant that accepts AmEx cannot...
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