On June 25, 2018, the Supreme Court held that a contractual provision between American Express ("Amex") and merchants that accept Amex credit cards, which forbids such merchants from suggesting that customers use competing credit cards that charge lower merchant fees — a process known as "anti-steering" — is not an anticompetitive vertical restraint on competition.
In Ohio v. American Express, the Department of Justice and several States sued Amex, alleging that, absent this provision imposed by Amex, merchants may have an economic incentive to "steer" or otherwise incentivize customers to use other credit cards with lower merchant fees. In reaching its conclusion, the Court determined that merchants and consumers constitute a single relevant credit card market in which the effects of Amex's actions must be examined. The scope of the applicable market examined by the Court represents a departure from traditional antitrust analysis, where consumer and merchant markets are distinct.
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This article was written with contributions from Tim Moore.