Antitrust

1 1 0 more robust rewards program, which is necessary to maintain cardholder loyalty and encourage the level of spending that makes Amex valuable to merchants." Id. at 2287–88. Thus, higher prices charged by Amex to merchants were not an anti-competitive effect of the NDPs in its merchant contracts, but rather evidence that competition for cardholders — in the form of better cardholder rewards funded by those increased merchant fees — was in fact flourishing. Id. at 2288–90. LESSONS FROM THE AMERICAN EXPRESS CASE The American Express case contains several lessons for antitrust analysis and antitrust litigation, and these are not limited to two-sided markets. While some of these lessons are not particularly novel, they bear repeating because they found an unusual application in this case and because they are sometimes forgotten, including by regulators and enforcers. First, antitrust analysis must consider the total market affected by a restraint, including two-sided platform markets where appropriate. Here, the plaintiffs and their expert acknowledged that the market was two-sided but made minimal efforts to incorporate that fact into their analysis. The District Court took the same approach, not wishing to take "the concept of two-sidedness too far." 88 F. Supp. 3d at 172–73. The Supreme Court, on the other hand, devoted substantial discussion to the proper approach to two- sided analysis. 138 S. Ct. at 2280–81. In light of this analysis, it will be difficult for future litigants to simply pay lip service to ANTITRUST LITIGATION A N T I T R U S T A N A LY S I S M U S T C O N S I D E R T H E T O T A L M A R K E T A F F E C T E D B Y A R E S T R A I N T, I N C L U D I N G T W O - S I D E D P L A T F O R M M A R K E T S W H E R E A P P R O P R I A T E United States Supreme Court Accepts the Importance of Two-Sided Markets Analysis 20

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