Burdens and Balancing in Multisided Markets: The First Principles Approach of Ohio v. American Express

While there is no canonical definition for multisided platforms, Hagiu and Wright (2015, p. 163) offer a good starting point: Platforms “enable direct interactions between” two or more groups where each group is “affiliated with the platform” in some manner—typically through platform-specific investments. Regardless of the precise definition, platforms are generally characterized by cross-group effects, or indirect network effects. These are effects that occur when the size of one group creates an externality—positive or negative—on one or more of the other groups on the platform. For convenience, we will assume without loss of generality that a platform has two sides: i.e., is a two-sided platform. The term “two-sided market” is often used interchangeably with “two-sided platform.” We will avoid the former term due to the potential confusion with relevant market classifications in antitrust.

See McChesney (1996, p. 121) observes that antitrust “inquiry focuses, of course, on market power, specifically on the ability of the challenged conduct either to create or to exploit it. Creation or exercise of market power translates directly into welfare losses, the primary cost against which an antitrust policy is supposed to guard”.

See, e.g., Ward (2017, p. 2077): “Judicial treatment of multisidedness during market definition is nascent, and courts have predictably differed in how to navigate the topic.” Hatzopoulos (2018, p. 108) finds a similar lack of agreement for competition matters in the European Union: “Two-sided markets have been treated inconsistently by the Commission”.

Ohio v. Am. Express Co., 138 S. Ct. 2274, 201 L. Ed. 2d 678 (2018), hereafter “American Express”.

See, e.g., Katz and Sallet (2018), Conner et al. (2017), and Brief of 28 Professors (2017).

See Brief of 28 Professors (2017), p. 17.

See, e.g., Ratliff and Rubinfeld (2014), Ward (2017), Evans and Schmalensee (2018), and Sidak and Willig (2018).

See Sidak and Willig (2018).

See Klein (1996, p. 155): “[M]arket power is not necessary for a firm to successfully engage in discriminatory pricing. All that is necessary is that the firm face a negatively sloped demand for its products, as all firms selling unique products do. Although such a negatively sloped demand and ability to price discriminate would not exist under the assumptions of perfect competition, it must be distinguished from the negatively sloped demand and ability to price discriminate that is present because a firm possesses a large share of the market”.

See Heyer (2012, p. 155): “Even in the case of price-lowering mergers, however, it will not necessarily be true that all consumers everywhere will be better off. An efficient merger may drive one or more rivals out of business, and consumers who preferred the version offered by exiting rivals may now find themselves worse off. Related to this point, efficiencies sometimes arise from combining complementary assets and standardizing on a single platform or a single standard. Where the two merging firms had previously been offering competing and incompatible methods of satisfying consumers, efficient standardization will typically strand the investments of consumers who had invested in the to-be-jettisoned standard. They will be left worse off, even though consumers in the market as a whole are better off from having a better, cheaper, more ubiquitous standard as a result of the merger”.

See, e.g., Ohio v. Am. Express Co. at *9 (2018) (“the plaintiff has the initial burden to prove that the challenged restraint has a substantial anticompetitive effect that harms consumers in the relevant market”); Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 488 (1992) (Scalia, J. dissenting) (“’[t]he [very] definition of exclusionary conduct’ as practiced by a monopolist, is ‘predicated on the existence of substantial market power.’”(citing to P. Areeda & D. Turner, Antitrust Law, 1978, pp. 300-302)). See also Deutscher Tennis Bund v. ATP Tour, Inc., 610 F.3d 820, 830 (3rd Cir. 2010); Nat’l Hockey League Players’ Ass’n v. Plymouth Whalers Hockey Club, 325 F.3d 712, 718 (6th Cir. 2003); Tanaka v. Univ. of S. Cal., 252 F.3d 1059, 1063 (9th Cir. 2001).

See, e.g., Brooke Group. Ltd. V. Brown & Williamson Tobacco Corp., 509 U.S. 209, 251 (1993) (“Sect. 2 of the Sherman Act… may be violated when there is a ‘dangerous probability’ that an attempt to achieve monopoly power will succeed” (citing to Swift & Co. v. United States, 196 U.S. 375, 396, 1905). See also Bd. of Trade of City of Chicago v. United States, 246 U.S. 231 (1918).

We can consider the burden-shifting framework for assessing competitive effects in a rule of reason case as follows. Step One is a determination of whether there is harm to competition. If harm to competition is identified, the burden is shifted to the defendant in Step Two to offer evidence of procompetitive efficiencies that offset the harm. If such efficiencies are identified, Step Three contemplates a balancing of the two countervailing effects. The platform debate is over whether the effects to groups on the “other” side of the market are appropriately accounted for in Step One or Step Two.

See Second Circuit, U.S. v. American Exp. Co., 838 F. 3d 179 (2nd Circ. 2016) (“The District Court erred in excluding the market for cardholders from its relevant market definition,” p. 197; “Separating the two markets allows legitimate competitive activities in the market for general purposes to be penalized no matter how output-enhancing such activities may be,” p. 198).

Ohio v. Am. Express Co. (2018, p. 14) (citing Filistrucchi et al. 2014, p. 302).

See Klein (1996, p. 156): “Instead of defining the degree of antitrust market power possessed by a firm in terms of the firm’s own elasticity of demand, it is more useful to define a firm’s antitrust market power in terms of whether changes in the firm’s prices have any significant effect on market quantities and prices”.

See Evans and Schmalensee (2018, p. 21): “And therein lies the fundamental error in the arguments about impermissible balancing…The first stage of the rule of reason analysis involves determining whether the conduct is anticompetitive. The economic literature on two-sided platforms shows that there is no basis for presuming one could, as a general matter, know the answer to that question without considering both sides of the platform”.

In American Express, the Court makes a potentially important distinction between transaction and non-transaction platforms. This categorization leaves open the possibility that non-transaction platforms will be analyzed as comprising multiple separate product markets. We discuss this issue in Sect. 4.

Ohio v. Am. Express Co. (“The key feature of transaction platforms is that they cannot make a sale to one side of the platform without simultaneously making a sale to the other,” p. 2 citing Klein et al. 2006).

Katz and Sallet (2018, p. 2142): “We advocate the use of a separate-effects analysis, which rejects the view that anticompetitive conduct harming users on one side of a platform can be justified so long as that harm funds benefits for users on another side.”.

See Katz and Sallet (2018, p. 2142): “Antitrust plaintiffs should not be required to prove as part of their prima facie case more than occurrence of competitive harm in a properly-defined [one-sided] market; thereafter, the burden to produce procompetitive justifications should shift to defendants”.

Conner et al. (2017, p. 10): “The correct approach is to determine whether a restraint on one side of a two-sided market interferes with competition among platforms in the market”.

Carlton and Winter (2018, p. 3): “Despite its two-sided property, one can analyze a credit card market using the vertical structure of a one-sided market”.

See Brief of 28 Professors (2017, p. 3).

See Brief of 28 Professors (2017, pp. 17–18).

See Brief of 28 Professors (2017, pp. 19–20): “We care about market definition in restraint cases because it sets the appropriate scope of the rule-of-reason inquiry—establishing the sphere in which the coupling of market power and anticompetitive practice can cause the kind of distortion and welfare loss that matters to antitrust law”.

See Ohio v. Am. Express Co. (2018, p. 11) (Breyer, J. dissenting). We distinguish two-sided platforms and complements in Sect. 3.1.

Emch and Thompson’s SSNIP test works both in the merger and non-merger context (“The same framework can be extended to non-merger cases to the extent that they present the same kinds of economic issues as horizontal mergers,” p. 52). In both contexts, it is important that the test is not applied to prices where the firm is already exercising market power, which can result in the “cellophane fallacy.” See White (2008).

Rosch (2010, p. 1).

Hoppner (2015, p. 353): “The competitive effects of a particular business practice on one side of the platform cannot be adequately evaluated without considering its effects on the other side…all user groups for which the platform acts as an intermediary must be taken into account, not just for the purpose of assessing the platform’s market dominance but also for the purpose of assessing the platform’s practices”.

See Second Circuit, U.S. v. American Exp. Co., 838 F. 3d 179 (2nd Circ. 2016) at 206–207 (“Plaintiffs bore the burden in this case to prove net harm to Amex consumers as a whole—that is, both cardholders and merchants—by showing that Amex’s nondiscriminatory provisions have reduced the quality or quantity of credit‐card purchases”).

See Ratliff and Rubinfeld (2014, p. 534): “The provision of [Google’s] organic search results is not a business in itself and cannot be the scope of a properly defined relevant antitrust market”.

See, e.g., Katz and Sallet (2018, p. 2148): “Given the lack of definitional consensus regarding multisided platforms, coupled with the prospective applicability of the existing definitions to a vast range of firms, it would be a mistake for antitrust enforcement to dramatically differ based on the threshold, and easily manipulable, question of whether a defendant is classified as a multisided platform;” Amicus Brief 28 Law Professors (2017, p. 28): “Creating a special rule that permits cross-market balancing of benefits and harms for ‘two-sided markets’ will also lead to vexing questions about how even to define which markets are ‘two-sided’”.

In Sect. 3, we further detail the practical shortcomings of attempting to measure a single, net price for multisided platforms.

This is not to suggest we are equating market shares with market power.

Wismer and Rasek (2017, p. 5) also reach this conclusion in the OECD Competition Committee paper on multisided markets: “Both approaches seem to be in line with the concept of demand-side substitutability; in particular, defining one single market does not conflict with this concept as a platform can be understood as a provider of an intermediation service, serving linked user groups with essentially the same service. All in all, and given the role of market definition as a tool that supports competitive analysis, neither of the two approaches seems right or wrong in absolute terms as long as the analysis appropriately accounts for interdependencies—such as indirect network effects—and for all competitive forces on each ‘side’ of the market”.

See Rochet and Tirole (2006, p. 646).

These are quasi-elasticities because, in a two-sided platform, the actual demand depends on the decisions from both groups on the platform. Note also that Rochet and Tirole’s elasticity rule appears to suggest that the more elastic side of the market has a higher price. This is not necessarily the case if we consider elasticity as a function of price rather than as an exogenous parameter. Thus, platforms will charge relatively higher prices to groups conventionally understood to be inelastic and charge relatively lower prices to groups conventionally understood to be elastic, which is the standard economic result. See Kruger (2009).

See also Weyl (2010).

See Evans and Schmalensee (2018, fn. 13): “The Petitioner Amici Economists note that the fact that raising the price on one side of a platform decreases demand on the other side is similar at the level of abstract theory to the relation between prices and demands for complements, like tennis racquets and tennis balls…This neglects a fundamental difference in business reality between the two situations: a platform must serve both its sides, because it is in the business of connecting them, while many businesses sell one complement (tennis balls) but not the other complement (tennis racquets)”.

See Kaplow and Shapiro (2007, p. 1080): “Higher prices can serve as a loose proxy for other forms of harm to consumers”.

See, e.g., Ohio v. Am. Express Co. (2018, p. 18): “To the contrary, while the agreements have been in place, the credit-card market experienced expanding output and improved quality”.

See Rysman (2009, p. 130): “Such seeming anomalies as price below marginal cost or even negative prices can easily arise in a two-sided market. For example, a platform might charge a price below cost on one side if those agents have a large price elasticity and their participation attracts a large number of participants on the other side who are relatively price inelastic (and hence have a high mark-up)”.

This is recognized in an OECD (2013, p. 5) policy roundtable document: “[W]hile most competition experts would agree upon the importance of quality as a competition consideration in theory, in practice it has proven rather difficult to account for quality attributes within conventional competition analysis”.

For a discussion and critique of this line of argument, see Cooper (2013).

See Klein et al. (2006, p. 580): “The two sides of a payment card system are not only interdependent, as are the two sides of the newspaper market, but their consumption of payment card transactions must be directly proportional. The two sides of the market can be thought of as providing inputs into the supply by the payment system of this single product”.

See, e.g., Ohio v. Am. Express Co. (2018, p. 16): “On the other side of the market, Amex uses its higher merchant fees to offer its cardholders a more robust rewards program, which is necessary to maintain cardholder loyalty and encourage the level of spending that makes Amex valuable to merchants”.

See Wright (2012).

See Rybnicek and Wright (2014).

See, e.g., FTC v. Staples & Office Depot, 970 F. Supp. 1066 (1997) and FTC v. Whole Foods Market, 502 F. Supp. 2d 1 (DDC 2007). This type of cluster market is also especially common in hospital mergers. See, e.g., FTC v. OSF Healthcare Sys., 852 F. Supp. 2d 1069, 1076 (N.D. Ill. 2012); FTC v. ProMedica Health Sys., 2011 U.S. Dist. LEXIS 33434, No. 3:11 CV 47, at *24 (N.D. Ohio 2011); In re Evanston Nw. Healthcare Corp., 2007 FTC LEXIS 210, No. 9315, at *148–51 (F.T.C. Aug. 6, 2007).

FTC, Staples and Office Depot, Complaint for Temporary Restraining Order and Preliminary Injunction, April 10, 1997.

FTC, Staples and Office Depot, Plaintiff Memorandum on Points and Authorities in Support of Motions for Temporary Restraining Order and Preliminary Injunction, April 10, 1997, p. 18.

SeeOhio v. Am. Express Co. (2018, pp. 6–7) (Breyer, J. dissenting).