Vertical Restraints After Amex: Quietly Imposing New Burdens on Section 1 Plaintiffs

Partner David Kully, who previously worked in the U.S. Department of Justice's Antitrust Division and was part of the American Express litigation team, weighed in on the Ohio v. American Express decision in a co-written article for the American Bar Association (ABA) Antitrust Magazine.

The June 25, 2018, ruling in favor of American Express was one of the last opinions the Supreme Court released in its 2017-18 term, finding that the state government had not met its burden at trial to prove that nondiscrimination provisions in Amex's contracts with merchants harmed competition among credit card networks and violated Section 1 of the Sherman Antitrust Act.

The authors unpack the original district court decision from 2014, explain the reasoning for and significance of the Supreme Court's ruling, and outline new obstacles for plaintiffs and explain the need for direct proof of harm in similar vertical restraints cases.

READ: Vertical Restraints After Amex: Quietly Imposing New Burdens on Section 1 Plaintiffs