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How Epic v. Apple Operationalizes Ohio v. Amex
Yun, John M.
Yun, John M.
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Abstract
The Supreme Court’s landmark decision in Ohio v. American Express
(Amex) remains central to the enforcement of antitrust laws involving digital
markets. The decision established a framework to assess business conduct
involving transactional, multisided platforms from both an economic and
legal perspective. At its crux, the Court in Amex integrated both the relevant
market and competitive effects analysis across the two distinct groups who
interact on the Amex platform; that is, cardholders and merchants. This unified,
integrated approach has been controversial, however. The primary debate
is whether the Court’s ruling places an undue burden on plaintiffs under
the rule of reason paradigm to meet their burden of production to establish
harm to competition. Enter Epic v. Apple (Epic): a case involving the legality
of various Apple policies governing its iOS App Store, which, like Amex,
is a transactional, multisided platform. While both the district court and the
Ninth Circuit largely ruled in favor of Apple over Epic, these decisions are
of broader interest for their fidelity to Amex.
A careful review of the decisions reveals that the Epic courts operationalized
Amex in a practical, sensible way. The courts did not engage in extensive
balancing across developers and users as some critics of Amex contended
would be required. Ultimately, the courts in Epic (a) considered
evidence of effects across both groups on the platform and (b) gave equal
weight to evidence of both the procompetitive and anticompetitive effects,
which, this Article contends, are the essential elements of the Amex precedent.
Relatedly, the Epic decisions illustrate that the burden of production
on plaintiffs in multisided platform cases is not higher than in cases involving
regular, single-sided markets. Additionally, both parties, whether litigating
single-sided or multi-sided markets, are fully incentivized to bring evidence
to bear on all aspects of the case. Finally, this Article details how the
integrated Amex approach deftly avoids potential issues involving the out-
of-market effects doctrine in antitrust, which limits what type of effects courts
can consider in assessing conduct.