John G. Roberts, Jr.: We'll hear argument next in Case 16-1454, Ohio, et al., versus American Express Company.
Eric E. Murphy: Mr. --
John G. Roberts, Jr.: Mr. Murphy.
Eric E. Murphy: Mr. Chief Justice, and may it please the Court: The government met its initial burden to show anticompetitive harm in this case under the rule of reason by proving that American Express's anti-steering provisions have stifled interbrand price competition and raised the prices that all four credit card companies charge merchants. The restraints have these horizontal effects because they bar merchants from accurately informing their retail customers about the different costs of credit cards and from offering them incentives such as price discounts to use cheaper cards. As a result, retail customers make decisions about which card to use in the dark about the relative costs, and merchants cannot reward credit card companies with greater market share by lowering their prices. As a result, that eliminates any incentive for credit card companies to do so. As Discover's president testified about its failed price-cutting strategy in the late 1990s, price cuts simply gave away money in the form of a lower price --
Neil Gorsuch: We're not here to protect competitors, right, Mr. Murphy?
Eric E. Murphy: Correct.
Neil Gorsuch: Or -- or necessarily even merchants. The antitrust laws are aimed at protecting consumers; you'd agree with that?
Eric E. Murphy: Correct, although in this --
Neil Gorsuch: Okay. So, given that, there's no evidence of restricted output in this case, correct?
Eric E. Murphy: I -- I would agree that it's -- there's -- it's ambiguous. There's no one way or the other about whether -- whether it has restricted output.
Neil Gorsuch: And that's normally what the antitrust laws care about, is deadweight loss. That's the primary concern of antitrust activity, wouldn't you agree?
Eric E. Murphy: Correct, although I think the --
Neil Gorsuch: Okay. All right. So you're left with this price question. And you have an increase in price to merchants, but do we have any evidence that consumers, at the end of the day, including the rewards aspect of what they get back, actually pay a net price increase?
Eric E. Murphy: Absolutely, we have evidence of restricted competition --
Neil Gorsuch: What evidence do you have of that?
Eric E. Murphy: -- that the other --
Neil Gorsuch: No, no. No, no. Evidence of price -- net price increase to consumers.
Eric E. Murphy: Well, so we don't think that we legally have to meet that, but --
Neil Gorsuch: I know you don't. I'm just asking --
Eric E. Murphy: So, factually --
Neil Gorsuch: -- if you have any evidence of it.
Eric E. Murphy: -- factually, the district court held at -- district court -- Petition Appendix pages 166 to 167, that the higher net prices were not offset by higher card --
Neil Gorsuch: Well, you have proof that not all of the increased price that American Express extracts gets to the consumer. That's not my question, however. My question is, do you have any evidence that, on a net basis, consumers pay more? And I don't believe you have.
Eric E. Murphy: Well, if we're just talking -- first off, I think merchants are consumers in this context.
Neil Gorsuch: I'm asking about consumers.
Eric E. Murphy: For the cardholder consumers, I think that there is evidence that they have restricted options on that -- that side.
Neil Gorsuch: But I --
Sonia Sotomayor: Isn't that true, given American Express's tying or -- or restriction that no merchant can offer a consumer a 5 or 10 or other discount for using Visa, MasterCard, or Discover, correct?
Eric E. Murphy: Absolutely correct. It has restricted competition on that side of the market in the sense of they have less options. An Amex cardholder who would prefer to have a 1 percent discount, if the Amex cardholder uses a Discover card, merchants aren't allowed to offer that option. So all consumers, including cardholder consumers, have less options than they would if these anti-steering rules were not in place. They have -- essentially, Amex has channeled --
Neil Gorsuch: Isn't that true with every vertical restraint? Anytime I say I'm only going to service Cadillacs at a Cadillac dealership, I can't buy a Volvo at a Cadillac dealership. All vertical restraints have the impact of restricting interbrand competition in that respect, but we learned through painful experience and many, many years that they're generally pro-competitive, right?
Eric E. Murphy: So it's not all interbrand restraints. So the classic manufacturer/distributor restrictions only affect interbrand competition in order to promote interbrand competition. Your hypothetical is about exclusive dealing, which I would admit affects interbrand competition.
Neil Gorsuch: Right.
Eric E. Murphy: That's why the Court has suggested, generally speaking, they -- they are problematic if they tie up too many buyers or sellers.
Sonia Sotomayor: We have a wonderful amicus brief that explains that when you have exclusive dealing, the competition doesn't become a competition for selling that product but for selling all the competing products, correct?
Eric E. Murphy: Correct. So --
Sonia Sotomayor: So that if this car dealership raises its prices too high, other car manufacturers are going to be able to give you a lower price car, perhaps of equal quality, correct?
Eric E. Murphy: Absolutely correct. That's why this is so fundamentally different from the manufacturer/distributor restraints that the Court addressed in Leegin. Those restraints, the Court made quite clear, that resale price maintenance, for example, interbrand competition acted as a critical check to make sure that the additional services being provided by resale price maintenance were worth their costs. That's the problem with this restraint. Most vertical restraints only affect intrabrand competition.
Neil Gorsuch: So you'd just have us ignore the fact that Visa and MasterCard have 74 percent of the market?
Eric E. Murphy: No. I think --
Neil Gorsuch: Or that they exercise no restraint in this marketplace?
Eric E. Murphy: I do think that -- that this marketplace is entirely highly concentrated where all the main competitors were using these types of restraints. As the Court said in Leegin, if lease --
Neil Gorsuch: That -- that's gone, though, right? I mean, any notion of horizontal agreement in this case is out of the case.
Eric E. Murphy: So I agree that there's no -- there's no allegations of horizontal agreement, but there -- there's clear evidence of horizontal effect. And when a vertical restraint has a horizontal effect, that is when the vertical restraint becomes problematic. And here it's just conclusive that the purpose and effect of this provision is to cut off price discounts from American Express's competitors --
Anthony M. Kennedy: Can you tell me --
Eric E. Murphy: -- and to raise --
Anthony M. Kennedy: Please, don't let me interrupt, Mr. Murphy.
Eric E. Murphy: I was just going to say and to raise the prices that all four credit card companies charge, which I think makes it problematic because it's market-wide.
Anthony M. Kennedy: Could you -- could you comment on the brief of the antitrust law and economic scholars in favor of Respondents? They said for us to focus on output. I know you disagree with their conclusion. Do you agree with their starting analysis, that we should think of this in terms of output, which is a multi-sided platform exercise?
Eric E. Murphy: I generally think that output is very significant, but in this case, I think the higher prices go hand in hand with the restricted output. The Court has said in the California Dental case that higher prices, reduced output, divided markets all have the same anticompetitive effect. And I want to make something clear: It's not that we --
Anthony M. Kennedy: Although their conclusion was that the output -- that this is -- this is a market that's, frankly, phenomenal in terms of its -- of its size.
Eric E. Murphy: That's what -- that's what I want to make clear, that we have clear evidence of direct causation that the restraints cause higher merchant prices. With respect to the restraints' effect on output, there is just no evidence one way or the other. Output has been expanding, but that doesn't control for -- for factors in this huge economy, such as GDP growth, inflation, or any other thing that's going to drive transactions here.
Anthony M. Kennedy: Does output include premiums or rewards to customers?
Eric E. Murphy: Yeah. Output would include quality considerations as well. But -- so we're talking about just the government's initial case here, and as this Court said, higher prices restrict output in any -- any market with downward-sloping demand curves. That's why all the circuit courts say -- say that the government can prove its initial burden under the rule of reason by showing either higher prices or restricted output. They're flip sides of the same coin in that respect.
Ruth Bader Ginsburg: Do you --
Eric E. Murphy: And I still think that the -- this Court's vertical restraint -- vertical restraint cases --
Sonia Sotomayor: I think Justice Kennedy's question was, given the uniqueness of this market where you don't have proof of greater output, does that make the price increase irrelevant?
Eric E. Murphy: No, I don't --
Sonia Sotomayor: I think that that was the nature of his question.
Eric E. Murphy: I -- I --
Sonia Sotomayor: He can correct me if I'm wrong.
Eric E. Murphy: I don't -- I don't think it does whatsoever, because I think this Court's cases, Catalano, National Professional Society of Engineers, all suggest that a competitor cannot impose a price restraint or restraint on one product attribute in order to channel it to other product attributes. Here, it would be merchant fees and cardholder rewards. The Court -- the Court's cases clearly suggest that competition itself should determine the appropriate ratio between quality and price considerations in -- in the Court's prior cases, Indiana Dentist, or in this case, merchant fees and cardholder rewards. It's competition --
Ruth Bader Ginsburg: Could you please comment on the Second Circuit's view that what's involved is a credit card transaction and that includes both services to merchants and services to cardholders and you can't just deal with one and ignore the other.
Eric E. Murphy: So I still think that even if under the -- taking the Second Circuit's premise as a given, which is this is just one market, we disagree. We think that that market analysis should be divided separately. But even taking their argument as a premise, their argument is that they can restrict competition with respect to one product attribute in order to channel it to other product attributes. And I think that's fundamentally inconsistent with this Court's cases under Section 1, which say that competition should provide what is the appropriate ratio between these things. I'll give you an example. In the Indiana Dental case, a dentist refused to provide X-rays to insurers and the dentist's argument was that this restriction on the provision of X-rays would improve quality of patient care. The Court rejected that argument. It said you cannot restrict competition with respect to that category because competition should provide what is the appropriate balance between these competing things. That's our central point. Even if this is one market, competition should decide what is the appropriate ratio between merchant fees and cardholder rewards. Amex is perfectly -- we have no problem with Amex's approach of having a high reward/high cost card. The problem is that they're trying to insulate that product because they think under the full spectrum of competition it could not survive from a competing argument, such as low cost/low reward cards. And so that's simply inconsistent with the basic policies of the Sherman Act, which is that not just price but quality considerations and all other considerations are best satisfied through competition. And I still think that it's fundamentally inconsistent with this Court's rule of reason cases in the vertical context. In -- in the resale price maintenance context, the Court made quite clear that, even though resale price maintenance might lead to higher prices for the higher services being imposed, if consumers didn't like those higher services, they can always switch to cheaper goods, a cheaper manufacturer's good. That is the fundamental problem that we have with this restraint. Unlike resale price maintenance, it has restricted interbrand competition, and so it's affected all competitors, relieving them of the ability to provide the low cost -- low cost product that consumers might want. So, if there are no further questions, I'd like to reserve the remainder of my time.
John G. Roberts, Jr.: Thank you, counsel. Mr. Stewart.
Malcolm L. Stewart: Mr. Chief Justice, and may it please the Court: The purpose and effect of Amex's anti-steering rules is to eliminate price competition across an entire market. Yet the Second Circuit held that the plaintiffs had not even established a prima facie case of anticompetitive effect. In our view, the court of appeals made two fundamental errors. The first was that for purposes of the plaintiff's prima facie case, the court collapsed into one what should have been regarded as distinct markets. And at the first stage of the analysis, the court should have focused entirely on the effects on the market for provision of network services to merchants. The second and I think perhaps the more fundamental error, and goes to some of the questions that the Court has been asking, is that even when looking at the cardholder side of the market, the Second Circuit erred by conflating the question, have reward -- have cardholder rewards become more generous, with the appropriate question, has competition on the cardholder side been enhanced? And I'd like to echo one of the things that Mr. Murphy was saying, that from our point of view, it's entirely legitimate for Amex to pursue a strategy where it produces higher rewards for cardholders and charges a premium and it's fully free to attempt to persuade its cardholders that the extra value is worth the extra cost. And in all sorts of markets --
Neil Gorsuch: Mr. Stewart, what would you say, though, I mean, you -- you argue to us that this is a very unique situation and new -- new to antitrust law, the two-sided market issue, and assuming all that's true -- I'm not sure it is, but taking it as true -- why shouldn't we take Judge Easterbrook's admonition seriously, that judicial errors are a lot harder to correct than an occasional monopoly where you can hope and assume that the market will eventually correct it. Judicial errors are very difficult to correct. And we've had a long and painful experience with vertical restraints in this Court going back to Dr. Miles that it took decades to correct, in Leegin; Albrecht, which took decades to correct in State Oil. Why should we disregard those admonitions in this case? I assume you'd like us to.
Malcolm L. Stewart: Well, we certainly -- I mean, we filed a brief in opposition arguing that the Court shouldn't grant cert because these issues were fairly new. They hadn't --
Neil Gorsuch: For just these reasons.
Malcolm L. Stewart: But I think given that the Court has taken the case, we -- we certainly would take the point that the Court should not speak more broadly than is necessary. It shouldn't attempt to articulate a sort of unified field theorem that would cover all two-sided markets. It should approach the case cautiously. We do think that there are a couple of principles that the Court can articulate that would be very deeply rooted in precedent and in established ways of looking at the -- at the antitrust world. The first is that for purposes of market definition, for the first step of the analysis, has the defendant impeded competition in the relevant market? The market has always been defined by reference to substitutability. What alternative sources of goods or services are out there?
Elena Kagan: Mr. Stewart, you admit, as does General Murphy, that at the second stage it's appropriate for the courts to take into account how this all plays out on the cardholder side of the market.
Malcolm L. Stewart: That's correct.
Elena Kagan: If that's the case, why doesn't that enter into the question of how you define the market in the first instance?
Malcolm L. Stewart: Well, I think it's -- it would be hard to determine, for instance, or really conceptually impossible to determine whether Amex had market power in a hypothetical market consisting of both the merchant side and the cardholder side. On the merchant side, Amex competes with three other networks. On the cardholder side, at least with respect to the issuance of cards, it competes with thousands of issuing banks. And the point of using substitutability as a criterion for defining the market and ascertaining market power is to answer the question, if somebody who is dealing with the defendant was dissatisfied with the bargain it was being offered, would it have appropriate alternative sources of supply that it would go to, or --
Anthony M. Kennedy: Does -- does -- does -- does -- does that mean -- I don't want to interrupt this line of questioning -- but does -- does that mean that, at step 1, the value to the cardholders shouldn't be part of the analysis?
Malcolm L. Stewart: I think you would still say has -- yes, competition has been --
Anthony M. Kennedy: But that's -- that's -- that's a very dangerous step for this Court to take to analyze the market that way, this two-sided market, to say that we're going to at step 1 look at just one side. That -- that's -- that's where I need help.
Malcolm L. Stewart: Well, I think it's -- it's kind of inherent in the -- in the three-step approach that the Court has taken to resolving rule of reason cases where first the plaintiff attempts to establish an anticompetitive effect. Then the defendant attempts to establish a procompetitive justification. And then the third step is the plaintiff can show either that the justification could have been achieved in a different way or that it wasn't really necessary. It's inherent in that formula that practices that can ultimately be justified at the second step may still have anticompetitive effects and those can be isolated and analyzed separately from the procompetitive effects. But I guess --
Stephen G. Breyer: It's a two-sided market. I mean, I -- I -- I've never seen such jargon. In -- in my own mind, I can think of joint costs, oil and gas in a well. I can think of complementary products, nuts and bolts, can't have a nut without a bolt, and I can think of combining the two, nuts and bolts made out of a special thing called titanium uranium. Okay? Now there we are. And I can think of different uses for the notion that you have two different products. Some people might say that shows that this agreement had no effect. Ah, if that's the use, I wonder why they entered into it. Okay? Then, second, I can imagine them saying: The reason that we have this agreement is because it creates a new, wonderful titanium uranium bolt that never would have been produced otherwise. That's like the manufacturers getting together and saying we have price fixing in order to stop poisoned toys. Okay. It's never been used as an antitrust flag justification, but I guess it could be. And then maybe there's 3 and 4 and 5. It's just that I can't find any of them relevant here, at least not yet.
Malcolm L. Stewart: Well, this market is -- and we take the point that's made on -- by some of the briefs on the other side. This market is distinct in the sense that at the time that a transaction is accomplished at the -- a merchant location, services are simultaneously being provided both to the merchant and to the cardholder. And that --
Stephen G. Breyer: We do the same thing, don't we, with nuts and bolts? We give the people nuts and we give them bolts.
Malcolm L. Stewart: But --
Stephen G. Breyer: And -- and maybe it -- I mean, you know, there are loads of -- there are a lot of products like that.
Malcolm L. Stewart: I -- I guess what I would say from this standpoint is Mr. Murphy, the federal government, and the Respondents all agree that benefits to cardholders should be considered as part of the antitrust analysis.
Stephen G. Breyer: Should really? Because -- and you agree with that? For example, we have an agreement among toy manufacturers that we won't sell poisoned toys. That's always been an absolute mystery to put to the class, from Phil Areeda on, because they want to stop the poisoned toys, but you say, hey, that isn't the job of the antitrust law. That's the job of the consumer protection agency. And so we have a debate. And I didn't know that that issue had been solved in this Court.
Malcolm L. Stewart: No, I -- I take your point, that perhaps I was imprecise when I said benefits to cardholders, because the Court has made clear in different Sherman Act contexts that, in kind of balancing procompetitive and anticompetitive justifications, you're not just looking at anything that could be characterized as beneficial or harmful. You're looking at harms to or benefits to competition. And our point about the cardholder side is that the Second Circuit may have been right when it said the effect of this -- the anti-steering rules was that, on the whole, cardholder benefits may have become more generous. But the --
Sonia Sotomayor: Mr. Stewart, could I just ask you to finish your second response to Justice Gorsuch? You said the market issue was number 1, that was fundamental. What's the second principle that you think is important? And, number 3, borrowing from Justice -- or going to Justice Breyer's point, I can -- I understand the argument why in this case on step 1 the two markets should not be joined, but I -- it's possible that in some other two-sided market that it might be a step 1. Do we have to rule and say that in no market is it?
Malcolm L. Stewart: No. To take -- to take that part of the question first, I think the Court should proceed cautiously about announcing categorical rules and can say that, for purposes of this case, it is sufficient to -- the fact that there is four-way competition on the merchant side and thousands-way competition on the cardholder side is by itself a sufficient ground for treating these as distinct markets. But to take the other part of your question and Justice Gorsuch's question, the reason that we think that the court of appeals analyzed benefits to cardholders incorrectly was that it doesn't focus on benefits to competition. That is, if you imagine MasterCard executives strategizing how can we get more people to use their MasterCards more often, one thing that they might say is let's beef up our rewards program. But the other thing that they might say is let's cut our merchant fees because if the merchants come -- in a world where there was no steering, they could say let's cut our merchant fees because if the merchant comes to regard our card as its preferred card --
Neil Gorsuch: And they're free to do that, right? I mean, American Express's agreements don't affect MasterCard or Visa's opportunity to cut their fees, their own fees, or to advertise that American Express's are higher. There is room for all of that kind of competition here. It's just the difference between Cadillacs and Kias. People can choose. Do they want a high cost, high reward, a low-cost, cheaper alternative? And the two sides can compete with one another.
Malcolm L. Stewart: That's exactly right, except that as long as the -- and that -- that is the type of environment that we believe the antitrust laws are intended to encourage. And then --
Neil Gorsuch: Absent a horizontal agreement, we have that, don't we?
Malcolm L. Stewart: Usually, we would. And this is a rare vertical agreement in the sense that it was a vertical agreement that ultimately had effects that would more commonly be associated with horizontal agreements --
Neil Gorsuch: Well, that was part of the case originally, but that's gone now, right?
Malcolm L. Stewart: No --
Neil Gorsuch: Because those agreements have been dropped by -- by Visa and MasterCard. I completely understand and accept that if that were part of the case, we'd have a very different case.
Malcolm L. Stewart: No, even without the Visa and MasterCard having their own anti-steering provisions, so long as American Express imposes the anti-steering rules on the merchants that are part of its network and so long --
Neil Gorsuch: Right. I understand the merchants can't, but the competitors can advertise all of these issues and they can point out their lower merchant fees to consumers, as they do.
Malcolm L. Stewart: Visa and MasterCard could advertise in that respect. Now the ad -- the advertisements that they might be run would probably be taken with more of a grain of salt than if the -- the merchant was telling her own customer Visa actually does charge me less than American Express. But even -- even leaving that aside, Visa and -- I mean, I'm sorry, Visa and MasterCard can advertise that people in a spirit of public -- in a public-spirited way should use their cards not because they'll gain any tangible advantage but because the cost to merchants in the aggregate will be lower --
Neil Gorsuch: So, Mr. Stewart, I'm sorry, I apologize. I just want to make sure I understand the argument then. Is it that the consumer welfare here is measured by the relative effectiveness of advertising by merchants as compared to by Visa and MasterCard?
Malcolm L. Stewart: No, it's -- I mean, it's -- it's the -- in your Mercedes and Kia example, it is the difference between Kia saying -- running advertisements and saying buy our cars because they have been produced in a more responsible way and you should contribute to the public good by encouraging these practices, even though you will pay no less for a Kia than for a Mercedes. It's one way of advertising. It's one way of trying to compete, but it's obviously a lot more effective if Kia can say, yes, our cars are not as good, but you pay a lot less for them. And, similarly, MasterCard and Visa would like to be able -- would like consumers to feel that maybe they're -- if they wanted to compete on -- on the basis of price, they would want consumers to feel, yes, maybe the rewards will not be extensive, but you will get a discount at the cash register or you will get some other tangible benefit from using our card. And Discover, for instance, when it was trying to implement its low-cost strategy, didn't just propose to lower its merchant fees in the hopes that would -- it would cause this train react -- chain reaction. Discover went to individual merchants and was trying to negotiate agreements where Discover would tell the particular merchant: We will give you the following discount on your merchant fee in return for your commitment to engage in the following steering practices. And that is a form of competition on the cardholder side in which the networks could otherwise have engaged. And at least so long as the large merchants feel that dropping Amex entirely isn't an economically feasible alternative, that form of competition is -- is entirely foreclosed. Yes, Visa and MasterCard can cut their own merchant rates unilaterally, but if the merchants can't give their own customers any advantage for using a card that has that effect, then it's a shot in the dark. It's unlikely to be a competitive -- a successful competitive strategy. And so -- so I guess the --
Sonia Sotomayor: I'm sorry, what was the second general principle? I --
Malcolm L. Stewart: That is the second general principle, that not only should the court of appeals not have collapsed the two sides of the markets, but that in asking whether the -- indeed, the non-discrimination provisions, the anti-steering rules were beneficial or harmful to consumers, it should have focused specifically on the effects on competition. It shouldn't have --
Sonia Sotomayor: The court below didn't do step 2 here?
Malcolm L. Stewart: That's correct.
Sonia Sotomayor: You're saying do we have to accept that it's always -- looking at both sides of the market is always appropriate, or is it only in this case that it might be appropriate, and how would it be appropriate if we looked at it under step 2?
Malcolm L. Stewart: I -- I guess I would -- with respect to two-sided platforms generally, I would simply -- I guess the only rule we would urge the Court to adopt is the fact that two interrelated markets are distinct for purposes of the first side of the analysis, the market power inquiry, should not preclude the Court from considering benefits on the other interrelated market at the second stage of the analysis.
John G. Roberts, Jr.: Thank you, counsel. Mr. Chesler.
Evan R. Chesler: Mr. Chief Justice, and may it please the Court: The district court described competition for credit card transactions as fierce. There is no transaction without a cardholder and a merchant simultaneously executing one. To compete for that business against ubiquitous and, frankly, larger rivals, Amex offers consumers what they want, and transaction volume has, in fact, increased dramatically and accordingly. Amex requires merchants not to undermine its cardholder relationship and its investment, not to work against Amex if it's going to be Amex's representative to consumers. And millions of merchants --
Sonia Sotomayor: Isn't that the essence of competition, to have somebody working against you? I mean, I always thought that that was the essence of competition, that someone will come in and -- and offer the people involved in the transaction something better.
Evan R. Chesler: Your Honor, that is the --
Sonia Sotomayor: Better or that they may not know they want but that they may want. I -- I have to say if I go to a cash register and the merchant says to me, I'll give you a 1 percent discount today if you don't use Amex, I sit there and think to myself, do I need the airplane rewards or the train rewards, or do I want the 1 percent? And I do it -- and I choose differently each time depending on the nature of the transaction. But you -- this anti-steering removes that competition.
Evan R. Chesler: Your Honor, the product here, we need to start the analysis with the question of what is the product.
Sonia Sotomayor: You haven't told me why it doesn't remove competition.
Evan R. Chesler: Because, in fact, it enhances competition between the brands, and that's what happened here. The competition between the brands --
Sonia Sotomayor: But I don't care about the brands. I care about my price. That's what price competition is about.
Evan R. Chesler: Exactly, Your Honor.
Sonia Sotomayor: I care about whether today I want to pay the 1 percent more or not.
Evan R. Chesler: And, Your Honor --
Sonia Sotomayor: And this vertical restraint is stopping horizontal competition.
Evan R. Chesler: Your Honor, I disagree with that. In fact, the district court here said no one had proved what the price of the product is. So we can't, in fact, conclude --
Sonia Sotomayor: I don't really care. All I know is that the merchant is offering me this at $90 or $100, and I have a choice between paying $100 or $99. At this moment, I'm paying a higher price to use American Express than I want to pay.
Evan R. Chesler: But what you don't know, Your Honor, in that hypothetical and what the district court found was never proven is what the effect on the other side of the same price is. Every time your rewards are reduced, that's a price increase to you. And the district court explicitly found --
Sonia Sotomayor: No. Only if I'm going to use the rewards.
Evan R. Chesler: Whether you --
Sonia Sotomayor: No, because if I'm not going to use the rewards, the $99 is still more valuable to me.
Evan R. Chesler: But, Your Honor, you may want to use the rewards on the next transaction. And when you aggregate those rewards, if you've collected fewer rewards, you've paid a price increase. And the district court found --
Sonia Sotomayor: You're making my choice for me. You're not giving me the choice. And that's what price competition is about, my choice, not your choice about what's more valuable to me.
Evan R. Chesler: Your Honor, I think one of --
Sonia Sotomayor: Some people, it's hard to believe, but there are credit card users who will never use their reward points. Your system depends on that.
Evan R. Chesler: And there are -- Your Honor, I agree with you, they may not choose to use the rewards, but when you look at the market -- market aggregated here, the fact is there was no proof at the end of the day of what the price for the product at issue is. The product at issue here are credit card transactions. You cannot have a credit card transaction unless a consumer and a merchant come together. And the question is, what's happened to the output of those transactions, what's happened to the quality of those transactions, and what's happened to the price of those transactions?
Stephen G. Breyer: That's one question. Now I'm beginning to understand this. I do sometimes learn something, as I just did from Mr. Stewart and the others in this oral argument. And my problem is that I grew up in antitrust at a time when people didn't use phrases like platforms and two-sided markets. So I have to translate things into a language that I've been using for 40 years, but okay. So now, as I see your argument, and I -- I didn't -- I started out not seeing what it was -- tell me if I'm right, and don't just agree if I'm not -- I really analogize this to a -- a firm that makes things and sells through dealers. Now it used to be, correct, that you couldn't tell the dealer he had to fix his prices because that stopped intrabrand competition, and you couldn't tell the dealer he had to divide markets. You couldn't divide them. And that's changed because sometimes those are justified. And usually the argument they are justified is that by fixing the dealer's prices among themselves or giving him exclusive territories, we will encourage him to work harder to sell our brand. And that sometimes is a justification. And it seems to me you are simply making a variation on that theme. You are saying by engaging in this agreement among dealers, which is, after all, agreement that does not directly but indirectly has a tendency to fix -- to raise prices, therefore, in a sense, there's an anticompetitive aspect. But by doing that -- by doing that, we are better able to get a product through to the consumer that, in fact, they will prefer more. Now have I correctly stated at least in general terms the form of your argument?
Evan R. Chesler: In general terms, you have, Your Honor. And may I add, and by our providing those rewards to consumers, Visa and MasterCard, who control 70 odd percent of the market --
Stephen G. Breyer: Right.
Evan R. Chesler: -- were required to respond in kind, and the result is that output has increased.
Stephen G. Breyer: Better for everyone.
Evan R. Chesler: Output has increased.
Stephen G. Breyer: Just as a person says let me tell the dealer of the car that he has to fix prices with the others, resale price maintenance, because I'll get my new gizmo car through and that'll improve everybody's life. Okay? Now, if that's the form of the argument, then isn't the way I can be a little traditional, say step 1, is there an anticompetitive aspect? Then we go to step 2, what is the justification and does it out-balance, et cetera? Okay. So far we're at step 1, is there an anticompetitive aspect? Well, of course. It seems to me obvious, of course, there is. When you tell the dealer that he can't tell the customer that he's charging a lower price, that's anticompetitive right then and there, and I don't see any other argument. I mean, what it could -- how could that be procompetitive? I mean, maybe there's a justification for it in terms of what you're going to do eventually, but how can that not be anticompetitive?
Evan R. Chesler: Because, Your Honor, you must ask that question with respect to the product at issue. And with respect, your hypothetical only related to part of the product. The product is the transaction. Indeed, the government contended at trial that American Express had 26 percent of the market. That's 26 percent of the dollar volume of transactions. And if I changed Your Honor's hypothetical to ask, is there an anticompetitive prima facie case with respect to the product, the transaction, the answer is absolutely not. Output of the product has soared. Quality, which the government admitted in front of the Second Circuit at their argument, has improved dramatically. And as the district court found, the price of that product was never proved --
John G. Roberts, Jr.: Well, output --
Evan R. Chesler: -- so no one can say it was super competitive.
John G. Roberts, Jr.: Output of the product has increased, that has so many factors that go into that besides the nature of the particular product, right? I mean, if the economy grows, then the output of your product, credit card transactions, grows, right?
Evan R. Chesler: It could, Your Honor. But the evidence here was that what was driving it was the fierce competition that the district court found between the card providers, which was driven by the rewards that Visa and MasterCard were forced to match because of American Express's rewards. There could be exogenous reasons why output increases. But the government's speculation that it had to do with other factors is just that, it's speculation.
John G. Roberts, Jr.: When you say the product, what are you talking about? The number of credit card transactions or the dollar volume?
Evan R. Chesler: Dollar volume. And that's what the government and the district court both said was the best metric for the trial.
Stephen G. Breyer: Then what worries me about that, I have just the same -- look, you -- you both have put your finger, it seems to me, on one of the most, as you know, I think, unless it's changed, one of the most difficult problems in antitrust law: How to define a market. And, by and large, the answer to that differs depending on a lot of different circumstances and what you're up to. And so, with an agreement that has an anticompetitive impact of some kind, it's easier and, you know, you get away from this, if you can identify an anticompetitive impact. Think of the new gizmo car which has 18 dealers. We give each an exclusive area. And for analysis purposes, I don't think you have to worry about a market. You say, look, that fact of exclusive areas stops these dealers from competing with each other. End of the matter. Right then and there you have an anticompetitive impact. And then we go on to question 2, is it nonetheless worthwhile? Now maybe you -- I've read the Second Circuit. I know some of those judges know antitrust law pretty well and so forth and -- but I just don't see something that improves on that basic thing. Unless you want to come in and say, oh, this had no impact, you know, because he only had 2 percent of the relevant market, in which case why did he enter into it? You know, I mean, I can imagine variations. But -- but do you see how I'm thinking?
Evan R. Chesler: I do, Your Honor. And -- and if I may, the point in your hypothetical, which I want to embrace because it really does make the point I'm trying to make, is the product was the new car with these gizmos on it.
Stephen G. Breyer: Yeah.
Evan R. Chesler: And you found in your hypothetical, I believe, that there was an anticompetitive effect at the first stage with respect to that product.
Stephen G. Breyer: Uh-huh.
Evan R. Chesler: And what I'm here to tell you is, with respect to the product at issue here, which is credit card transactions, the government did not prove that there was an anticompetitive effect because output was up, quality was up, and they didn't prove what the price of that product was. So you couldn't possibly conclude that the price was super-competitive.
Elena Kagan: Mr. Chesler --
Stephen G. Breyer: It may have been anticompetitive in one way. In one way.
Elena Kagan: Mr. Chelser --
Stephen G. Breyer: You cannot get through to the dealer -- to the customer, the fact that these different companies, some charge lower, some charge higher prices. The product you're buying, some will be lower, some will be higher. That is a fairly key element --
Evan R. Chesler: Which the credit --
Stephen G. Breyer: -- which this prevents you from getting through in terms of information to the person who's going to be buying.
Evan R. Chesler: Respectfully, Your Honor --
Stephen G. Breyer: No?
Evan R. Chesler: -- it does not. The credit card companies are perfectly free, as Justice Gorsuch's questions asked before, to tell the consumers what their charges are.
Stephen G. Breyer: But the merchant is not. And, indeed, were we to start down that road and say don't worry when you get a promise among merchants not to tell people what prices are, because, after all, the person who sells through you could always advertise, that, I think, would have a pretty strong anticompetitive impact across the country.
Evan R. Chesler: If there --
Sonia Sotomayor: I'm sorry, the -- the advertising mechanism failed completely. Discover tried it and said I'm just leaving money on the table because the restrictions are not just don't tell them the price difference, but don't steer them away from American Express by giving them a better deal in some other way. So you're not talking about a restriction just on what you tell them, but it's a restriction on what you do. And so that anticompetitive effect is broader than just don't talk.
Evan R. Chesler: No, Your Honor. In fact --
Sonia Sotomayor: I mean, Discover couldn't tell them to -- or as they tried, very hard, to have the merchant agree to try to pass off the price saving to the customer. They couldn't do it under American Express's conditions.
Evan R. Chesler: Your Honor, Discover had 5 percent, give or take, of the market before these provisions were enforced. They had 5 percent after these provisions were enforced. And when I asked the president of Discover what about the millions and millions of merchants in America which do not accept American Express cards and therefore have none of these provisions; have you, in fact, adopted that strategy at those merchants? He said no. So what we're talking about with respect to Discover is the issue of protecting a particular competitor, not protecting competition.
Elena Kagan: I don't think that that's right, Mr. Chesler. I mean, I think that the Discover issue is about protecting low-cost products because the reason that we've -- that we've said vertical restraints are often perfectly fine -- indeed, better for competition -- is because it allows us to have some high-cost products and some low-cost products. High cost/high service, low cost/low service. The problem here is that the effect of these anti-steering provisions means a market where we will only have high cost/high service products. And any competitor that wants to come in and says, you know what, we want to compete in a different way, we want to compete in terms of cost, is going to find itself unable to do so. And that's the thing that makes this vertical restraint, it seems to me, different -- different from others.
Evan R. Chesler: Your Honor, in fact, there are many low cost/low reward options on the market today. They're advertised all the time. I saw an ad for one on TV this morning as I was putting my tie on. There is no inability to offer a wide range of low-cost --
Elena Kagan: Mr. Chesler, if I'm a consumer -- I mean, it might be that I'm very altruistic and I just care about my local coffee shop and the kind of deal that the proprietors are getting, but more to the point, what I really care about is if that local coffee shop can past on -- pass on its decrease in price to me. And that's exactly what the anti-steering provisions prevent. It prevents the vendor from passing on the lower merchant fees to the consumer. And as long as that's the case, you're just not going to be able to construct a business strategy based on a low-cost card.
Evan R. Chesler: Well, Your Honor, again --
Elena Kagan: And this is exactly -- I mean, this is not me making this up. I mean, there was a seven-week trial. And that's exactly what the district court found. And these are findings of fact about Discover, about the effect of -- of -- of -- of this anti-steering provision on the actual state of competition in the market, meaning on the ability of low-cost cards to compete.
Evan R. Chesler: If I may respond, Your Honor. The district court also found that this two-sided market was, as he said, different from virtually all others because here the two sides were inextricably linked and intertwined. And here, Your Honor, I would submit, the product, which is the transaction, is a product that has a cost and a price associated with both of the parties to it, the consumer and the merchant. And under Your Honor's hypothetical, if, in fact, that price is lowered, the merchant cost is lowered, the rewards are lowered, and that's a price increase to the consumer --
Sonia Sotomayor: Ah, but we don't know --
Evan R. Chesler: -- which was never proved on this record.
Sonia Sotomayor: But we don't know that because we don't know -- and American Express is the only one who does know. We do know that the entire price increase is not passed on to consumers. So there is a profit margin in there that can be distributed or one profit margin lowered to the benefit of the customers or -- or not, but that's what competition is about. Every competitor will decide what mix of profit, what mix will go to the consumer, won't go to the consumer, and the consumer -- finding of fact by the seven-week trial judge -- will benefit with lower prices.
Evan R. Chesler: Your Honor, in fact, as the -- as the court of appeals pointed out, the fact that not every penny of the merchant fee is passed on in rewards to the consumer tells you nothing about the other costs that the card company is incurring. And the government did not prove what those costs are. It could well be that, in fact, the --
Sonia Sotomayor: Well, isn't that what the rule of reason does by putting this at step 2? The government's never going to know that. It doesn't know your business model.
Evan R. Chesler: Well --
Sonia Sotomayor: If you want to argue procompetitive effects, you show it. It's not up to the government to show on a -- in a different market that there's a benefit that outweighs the price stifling in the main market. I mean, I've never heard of such a thing. If you think there's procompetitive effects, you prove it.
Evan R. Chesler: Your Honor, it is the -- it is the defendant's obligation or burden to prove procompetitive effects when the plaintiff proves a prima facie case of anticompetitive effect --
Neil Gorsuch: Mr. Chesler --
Evan R. Chesler: -- with respect to the product at issue.
Neil Gorsuch: -- with respect to that, and in response to Justice Breyer, we talked about the fact that the agreement does limit the merchant's ability to do certain things and -- and whether that might meet step 1, but I would have thought under -- under Section 1, you might have responded, yes, if there's market power. But market power, absent market power -- an agreement with a merchant to do anything that restricts anything is not in the cognizance of the antitrust laws. And a 26 percent player, absent some proof, other proof, is not -- does not have market power.
Evan R. Chesler: Your Honor, I -- I -- I could and should have added that to my answer and it's more than that here. It is --
Sonia Sotomayor: I thought we had two ways of proving market power, direct and indirect. You need to show a certain control of the market in indirect, but I think case after case have said if you can control prices, you have market power.
Evan R. Chesler: If I may respond. Let me talk about the indirect first. Twenty-six percent of the market, never been a decision in this Court that I'm aware of that's found market power in that case. One out of every 10 cards in America, only one out of 10 is an American Express card; 3 million merchants do not accept American Express cards. They chose not to do business with us. They all do business with Visa and MasterCard. This company has no power, and the district -- the court of appeals found it had no power, and the states did not raise those issues here.
Sonia Sotomayor: But every competitor raised their price to match American Express's merchant price.
Evan R. Chesler: To fuel --
Sonia Sotomayor: So this vertical restraint had a complete horizontal effect, so it has market power to control the merchant market.
Evan R. Chesler: Respectfully, Your Honor, I don't think that's what happened here. The increases by the card companies were, as the district court found, to fuel the intense competition for cardholders, without whom there will be no transactions. That's what the findings are. And if prices go up because the costs of providing a competitive option to consumers go up, that's not anticompetitive. That's procompetitive.
Stephen G. Breyer: On that point, you know, it looks to me like market power is a gremlin that you are going to throw, if we accept that, throw into the -- into the gears of antitrust law as it has been under Section 1 across the country everywhere. I mean, I thought -- and perhaps there have been changes, but I haven't seen them in this Court -- I thought that if, in fact, three people agree upon their prices, or forget price fixing, three people who are competitors agree that they will have a convention where they will hire Mr. Smith, who will lecture to them about the benefits of all charging the same price, I would have thought you just said that's anticompetitive. That's anticompetitive. There's no need to look at this gizmo called market power, which is a nightmare. Now, if the defendant wants to come along and says, I'll tell you something, Judge, because nobody had any market power, this couldn't do anything, then you would wonder why they did it. But I would leave you that option, you know, if you're the defendant. So where is this thing you have to prove in every Section 1 case, market power? I have not seen it. Is it in a case I haven't read, which is quite possible?
Evan R. Chesler: Your Honor, if we were talking about a horizontal restraint, which was what your comment was directed at, I would be in complete agreement with you, because the error costs of a horizontal restraint are very low. It's almost always to get people to charge more for less.
Stephen G. Breyer: What's the vertical case? Even Leegin didn't say that. I mean, you know, I say even because I dissented, but nonetheless --
Evan R. Chesler: I recall that, Your Honor. (Laughter.)
Stephen G. Breyer: None the -- nonetheless --
Evan R. Chesler: I recall that.
Stephen G. Breyer: Nonetheless, I've not seen a Section 1 case. Now I'm not saying there couldn't be one, but I -- but I am saying I don't think it's a universal requirement. And I think if you have an anticompetitive agreement which looks anticompetitive, seems anticompetitive, et cetera, why go into market power?
Evan R. Chesler: Because, Your Honor, in a vertical restraint, as this Court has said repeatedly over the last 40 years, the error costs are very low, because when a -- when a company, particularly a company without power, imposes a vertical restraint, it is to enhance its ability to compete against other brands. And as Justice Kennedy said in the Brooke case, a price increase in the face of increasing demand tells the trier of fact nothing about whether it's anticompetitive. One needs to determine if excess profits are being extracted, monopoly rents are being extracted. And the plaintiff here didn't even prove what our costs were, let alone our margins. If this -- if the standard that this Court articulates, Your Honor, is a standard in which a price increase without proof of a restriction of output, without proof of a harm to quality, without proof that excess profits have been extracted, if that's enough to satisfy a prima facie case, then what will happen in the lower courts -- and I speak from 42 years of experience of trying antitrust cases -- there will be a wave, a tsunami of false positives in the lower courts.
Stephen G. Breyer: I only have 42 years of teaching antitrust. (Laughter.)
Stephen G. Breyer: And I would say in that -- in that experience, which is not as good as yours, actually, because you actually have practical experience, but it seems to me there have been a lot of cases where you wouldn't -- you would not see price increases, the main one being Alcoa. I mean, Alcoa, which used to be thought to be the best case ever written in antitrust, Learned Hand. It has no price increase. It was --
Evan R. Chesler: But --
Stephen G. Breyer: There it was only market power. I know. You're going to say that, but that's a different point.
Evan R. Chesler: I was about to say that's a different point. I think I heard that from someplace at the time. (Laughter.)
Evan R. Chesler: But, Your -- Your Honor, in a vertical restraint case, if output is going up, if costs are going up because they're investing in rewards that are benefitting the consumer, that's the way a competitive market is supposed to act. And all I'm saying to Your Honor is, if the test that this Court articulates is the test that's suggested by the folks to my right, then we are going to have a wave of positives that are false where real competition is taking place because price increases occur for all sorts of reasons, many of which are perfectly benign, which is exactly what happened here with respect to the merchant fees because they were fueling price decreases to the consumers. Every reward, every seat on a plane to Aruba, every ticket to a Billy Joel concert, every cash back reward that's given, is a price discount to the consumer. And what the district court found here is nobody proved to me what that price is for the product at issue. So the result that we're trying to avoid here is a situation in which a plaintiff can fail to prove what the price of the product is, merely that there's been an increase to part of that price, and that that's enough to satisfy the first leg of the rule of reason. And the burden then falls to the defendant to disprove what the plaintiff has failed to prove. That will create mischief. Professor Katz, the government's only expert here, from Berkeley, testified that in a two-sided platform, if you don't completely and accurately assess the impact on both sides of the platform, you will get misleading conclusions. And with respect, Your Honor, that's what will happen if this Court only looks at the activity vis-a-vis the merchant, when there is a consumer standing opposite her without whom the product doesn't exist. And that's what --
Sonia Sotomayor: Counsel, that's step 2.
Evan R. Chesler: No, Your Honor. That's step 1. There is no case that I am aware of in which a plaintiff has satisfied its burden on step 1 by proving an impact on competition on something other than the product that is at issue here. And they didn't prove step 1.
Sonia Sotomayor: But we've had two-sided markets --
Elena Kagan: Well, Mr. Chesler, what the --
Sonia Sotomayor: -- we've had two-sided markets that we've looked at in antitrust law. Justice Breyer just mentioned one. How about the newspaper advertisers and the newspaper readers?
Evan R. Chesler: Can we take that one? I'd like to take that one. That's the Picayune case.
Sonia Sotomayor: Picayune.
Evan R. Chesler: The transaction in that case, again, my -- my request to this Court is always start with the same question: What's the product at issue? The product at issue in Times-Picayune was advertising sales between the advertisers and the newspapers. While there were subscribers to those newspapers, they had nothing to do with that transaction.
Sonia Sotomayor: Oh, yes, they did, because the number of subscribers affected the price that the advertisers were going to use, and their inducement to use the -- to subsidize both morning and afternoon advertisements.
Evan R. Chesler: And that distinction is exactly why this Court need not decide in this case a rule for all time for every two-sided platform. This case is a situation in which there is no transaction unless those two parties, the consumer and the merchant, come together at the same moment in time and complete the transaction. That was not true in Times-Picayune. Ultimately, over the course of time, if the -- if the advertisers didn't put their ads in the paper, maybe it would have an impact on consumers, and vice versa, but you could have a completed transaction in Times-Picayune without the consumer, the subscriber, being involved in that transaction.
Elena Kagan: Mr. Chesler, I don't -- I don't have 42 years of antitrust experience, teaching or practicing, but --
Evan R. Chesler: It just requires a little time, Your Honor.
Elena Kagan: So I just think of this in sort of simple-minded ways. Here's what the district court found. The district court found that merchants cannot steer customers to cheaper forms of payment. The district court found that all of the credit card firms have consistently raised their prices. Even when you look at these two-sided prices, the district court found that these price increases were not being passed on to consumers. And the district court found that it was impossible for a credit card company that wanted to offer a low cost/low price product to enter the market. So you put all of those things together, that sounds like a market that is not working in the way it's supposed to, at least sufficiently to get on to the second step where you can make all your arguments about why it is that a market where the prices only go up and where no low-price competition can emerge is, nonetheless, a good market.
Evan R. Chesler: Your Honor, my answer to that is that every one of those findings dealt only with the merchant relationship. They had nothing to do with the consumers. And, again, here, without that consumer presenting her card to the merchant, the transactions that were being debated in this case wouldn't even exist. The district court itself found that there was no proof of the actual price to the two sides of that transaction. The government had failed to prove that. The government had failed to prove what the costs were for the -- for the services provided to the merchant, and it failed to prove what the -- what the consumer's side of the price was. So every -- we didn't challenge any of those findings in the court of appeals, nor do we challenge them here, because they are all clapping with one hand. They're only talking about what happens on one side of the counter when you present your card for that -- to buy that sweater.
Elena Kagan: Well, it's the one hand where the government has the burden. And now, if you want to come in and you can say, look, there are all these great benefits that go beyond -- I mean, some of your benefits sort of seem to me to be benefits for American Express only. But if you want to say, no, that there are great benefits for the market generally, that's what step 2 is about.
Evan R. Chesler: May I?
John G. Roberts, Jr.: Please.
Evan R. Chesler: You only get to step 2, respectfully, Your Honor, if the government proves that competition for the product has been impaired at step 1. And what I've said over and over again here is the product is the transaction, and none of those findings related to the transaction.
John G. Roberts, Jr.: Thank you, counsel.
Evan R. Chesler: Thank you.
John G. Roberts, Jr.: Mr. Murphy, you have three minutes remaining.
Eric E. Murphy: Mr. Chief Justice, just a few points in rebuttal. The first of those is I think the most important point for this Court to take from this case is that certainly the Court has lessened the scrutiny with respect to vertical restraints in recent -- recent years, but this particular vertical restraint, the one at issue here, has the same effects that we would anticipate happening with a horizontal cartel. If all of the credit card companies got together and said we're going to not allow steering, that would cut off price competition on the merchant side, it would still allow for quality reward competition on the other side, but that rule would be per se illegal. That rule would be per se illegal, despite the alleged benefits on the cardholder side, just as this Court said in the engineers' case, the engineers can't get together, fix prices, and then justify that on the basis of the allegedly improved quality. It's per se illegal. We're not in the per se illegal world here because this is a rule of reason case, but what the evidence shows under the rule of reason, the full market analysis, is that it has the same exact effects that one would anticipate with a horizontal cartel --
Ruth Bader Ginsburg: Mr. Murphy --
Eric E. Murphy: -- and that's why the government has --
Ruth Bader Ginsburg: -- what is -- what is the relief that you're seeking? Are you seeking to say the Second Circuit was wrong in saying you didn't -- the government didn't prove step 1, and now he goes back for a step 2 examination? Is that what you're --
Eric E. Murphy: Absolutely. Just to answer the question presented, which was whether the government met its prima facie case based on the effects that we showed at the trial. And then, on -- on remand, they can preserve -- any -- any arguments that they have preserved, they can present to the Second Circuit. And then, with respect to price, we -- we would readily agree that higher price can oftentimes arise from different reasons. That's why the Court in Brooke Group said that the government should prove that the higher prices arise from non-market forces. Here, the -- the district court found as a fact that higher prices weren't rising because of the cardholder rewards. They were rising because of these restraints. And the Discover example of that phenomenon is quite powerful. Discover saw the higher prices, saw the discontent in the merchants, and responded with its low-cutting -- price-cutting option. And -- and all of the merchants came to Discover and said, sorry, we'd love to shift shares to you, but there's nothing we can do about it because of these restraints. That quite powerfully shows the horizontal effects. With respect to market power, I think that we would be fine with a rule that market power needed to be shown; we just think that the evidence overwhelmingly shows --
Neil Gorsuch: I -- I just want to pause right there. You -- you accept that to show an anticompetitive effect, you have to show not just an agreement --
Eric E. Murphy: We would --
Neil Gorsuch: -- but also that it -- market power in some way, shape, or form?
Eric E. Murphy: So we would readily -- we just disagree on the manner in which it need be shown.
Neil Gorsuch: Right, but you agree it need be shown?
Eric E. Murphy: Yes. So we showed market power, but we showed it quite powerfully in this case with this restraint affecting merchants making up some 90 percent of the market. And nobody without market power could actually affect industry-wide prices, and that's what --
Neil Gorsuch: Right --
Eric E. Murphy: -- we have going on here.
Neil Gorsuch: -- if there were no market power, an agreement would have no anticompetitive effect?
Eric E. Murphy: Absolutely. As Judge Bork said in the -- in the D.C. Circuit case, it would be suicidal for an -- a producer to adopt a restraint without market power. But here, obviously, it wasn't suicidal.
Sonia Sotomayor: This is the Leegin situation. This is a vertical restraint that controls -- that has a horizontal effect?
Eric E. Murphy: It's not like Leegin. Leegin was only a restriction on --
Sonia Sotomayor: No, not like it, but it was the exception Leegin talked about.
Eric E. Murphy: Absolutely. Leegin allowed for room for this analysis. Thank you, Your Honor.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.


Earl Warren: Number 51, the First National Bank of Logan, Utah versus Walker Bank and Trust Company, Number 70, First Security Bank of Utah versus Commercial Security and Number 88, James J. Saxon, Comptroller of the Currency, petitioner, versus Commercial Security Bank. Mr. Posner.
Richard A. Posner: Mr. Chief Justice and may it please the Court. The National Bank Act in 12 U.S.C. 36 (c) (1) empowers the Comptroller of the Currency to authorize a National Bank to establish branches within its home municipality if such establishment is permitted to the state banks of the state under state law. Utah's Banking Code permits its state charter banks to establish branches within the bank's home municipality and indeed anywhere in the state. But it provides with exceptions that are not relevant here that a branch maybe established only by taking over by purchase or merger at existing bank. And the sole issue in this three consolidated cases is whether this take over restriction of Utah law is binding upon the National Banks located in Utah. Number 51 involves the banking system of Logan, Utah, a city of 20,000 people where only one bank, the First National Bank of Logan has its main office although there are branches of two other banks there. First National apply to the Comptroller of the Currency for permission to establish a branch of its own in Logan not by taking over an existing bank but by opening a brand new facility. The Comptroller granted the application and the Walker Bank, a large state bank which has a branch in Logan then brought this proceeding to enjoin the operation of First National's branch. Contending that the First National Bank of Logan was subject to this state law take over limitation and Walker eventually prevailed in the Tenth Circuit. Number 73 and 88 here on petition of the National Bank involved and the Comptroller respectively involved Ogden, Utah, a city 70,000 where at the time to this controversy arose, four banks had their main offices. One of these was a National Bank, the First Security Bank of Utah and if, like First National of Logan apply to the Comptroller and obtained authorization to establish a branch in its home city, Ogden not by taking -- no -- not -- without complying with the take over restriction of Utah law but by opening a brand new facility and one of the other banks in Ogden, Commercial Security Bank, a state bank then brought an injunctive proceeding against the Comptroller in the District of Columbia again contending that the take over restriction of Utah law finds the National Banks in that state. And the Court of Appeals sustained this challenge to the Comptroller on the authority of the Tenth Circuit's opinion in the Logan case. We believe that the courts below were an error in holding Utah's take over restriction applicable to the National Banks and I propose to demonstrate this first by reviewing the history of Section 36 (c) of the banking title and then considering the language and design of the federal statute of Section 36 (c) in the light of this critical history. Now, in the beginning, the National Banks had no authority to establish branches. And each National Bank was limited to a single office. This created no problems in an era when branch banking was virtually unheard of but in the early part of the century the states begin increasingly to experiment with permitting their state charter banks to establish branches. And this development lead to proposals in Congress beginning in the early 1920's to give the National Banks authority to establish branches. And in the deliberations on these proposals, it soon became evident that were two quite antagonistic schools of thought on the subject of branch banking. One school believes that it was a salutary development that it would strengthen the banking system and would inject greater competition into it. And the Congressmen who held this view proposed that the National Banks be permitted irrespective of state law to establish branches throughout the state in which they were located and even to a limited extent in other states. The other school of thought held that branch banking was an evil. And the reasons they gave for these are relevant and can be summarized very briefly. They were concerned with the absentee ownership of a community's banking facilities with the problem that a farmer or a merchant in a small town might have to deal with a bank not rooted in the community. A manager from a financial corporation located elsewhere. They feared also urban domination by affluent city banks of the world banking markets of a state. And finally they appeared that branch banking was conducive to the monopolization of a state's banking industry by a few large banks. Banks which would spread out throughout the state in a kind of tentacular fashion would drive out the smaller independent banks throughout the state and lead to a high concentration and centralization of a state banking industry. And this Congressional group thought that the National Banks should remain without any authority to branch. Now in the states, opinion was divided on this controversy between the two schools of thought on branch banking. Some states forebad branch banking altogether. Others permitted it but within very narrow circumscribe bounds. And others permitted it with very few restrictions and this division in the states was reflected in the bitter and protracted debates in Congress stretching over a decade in the 1920's and 1930's and culminating in the branch banking provisions of the National Bank Act which are now codified in Section 36 (c). In the end of course, the proponents of allowing the National Banks to have branches prevail, but not without a compromise with the opponents. The Congressional group for which -- for whom branch banking was an anathema was simply too vocal and too strong to be completely overwritten. And in the end it had to be accommodated. And I should now like to trace the terms of this accommodation between the proponents and opponents of branch banking in the actual language of Section 36 (c) which we have set forth on pages 44 to 45 of our brief. Subsection 1, which is the provision directly relevant here provides that within it's home municipality, a National Bank with a Comptrollers permission may establish branches if such establishment is permitted to stay chartered banks by the law of the state where the National Bank is located. And the Congressional purpose here is plain, if a state so completely distrusts the institution and practice of branch banking as to forbid it all together even within a bank's home town, the National Banks located in the state are likewise forbidden to have any branches. Consider now Subsection 2, it provides that the Comptroller may authorize a National Bank to establish branches outside of the bank's home municipality although not outside of the state upon two conditions. First, that state banks enjoy a like authority to establish branches outside of their hometowns and secondly subject to such restrictions as to location which the state may impose on its state chartered banks. Now, a state might look with relative equanimity upon branching with inter-bank's hometown feeling that the dangers of absentee ownership -- supposed dangerous of absentee ownership and monopolization where very much mitigated where branching authority is limited to the hometown and yet decide that a broader authority would be dangerous. And if that is the state's decision then the National Banks are likewise limited to their hometowns. And Congress refined the matter still further by providing an intermediate position between hometown branching and state wide branching. There are some states like Pennsylvania which apparently are distrustful of statewide branching and yet feel that banks should be able to follow its customers to the suburbs for example. And so provides that a bank may establish a branch within its home county and also within contiguous counties. And there are other states which permit branching outside of the hometown within a given mile radius within 25 or 100 miles. And so the state should decide to circumscribe its branch banking system in that fashion, the National Banks are likewise are bound. And what is adds up to is that if the state –- if a state wants to create a limited branch banking system, if it wants to avert or at least contain these dangers that opponents of branch banking foresee that may do so in confidence that the National Banks located in the state cannot subvert its policy by virtue of enjoying a broader branching authority. And so if the State of Utah had provided that its banks may not establish branches outside of their home municipality or outside of their home municipality plus adjacent counties or beyond a certain radius of the bank's home office and such a policy of containing branch banking would bind the National Banks in the state no less than if Utah had forbade branch banking altogether.
Speaker: (Inaudible)
Richard A. Posner: A limitation on the number of branches would not be within the expressed language of the –- of Section of 36 (c) and probably is not a necessary implication from that language simply because a state can place limits upon its branching system to avert these dangers of centralization. Perhaps most effectively by setting geographical bounds rather than by saying that a bank may have 15 branches or ten branches or something like that. We do recognize that that would present a more difficult question in the restriction in issue here because as I shall try to suggest now, the type of restriction that Utah has imposed, it reflects no policy of limiting a state branch bank system. For example we have in Number 51, as the respondent, a state bank which has 14 branches for all that appears well distributed throughout the state. For under Utah law, a bank may establish new branches both within its home municipality and anywhere throughout the state. We have for example as petitioner, Number 73, the First Security Bank of Utah, a bank having 43 branches in 34 cities and while it's true that this is a National Bank, had Utah chosen to circumscribe or forbid branch banking in its state, National Banks would enjoy no greater authority. The fact is that all Utah has required in this take over restriction which is the issue here is that all branching be channeled into mergers. And this is a restriction wholly unrelated to the kind of concerns which cause Congress in Section 36 (c) to permit the states to limit the branch banking systems of their states. There is nothing in Utah law to prevent a large city bank like Walker Bank which is a Salt Lake City Bank from establishing branches all over the state, in any number anywhere, simply by purchasing existing banks. And in fact we think that a system which -- without limiting branching directs it exclusively into the merger route, promotes the very centralization and monopolization tendencies with which Congress was concerned in incorporating some portions of state law because every time a State Bank of Utah decides to open a branch, it must take over an existing bank and eliminate that bank as an independent competitive factor.
Earl Warren: Well, wasn't the real purpose of this Act of Congress to put the National Banks on exactly the same footing as the state banks in branch banking so that neither would have a preference over the other?
Richard A. Posner: We think not Mr. Chief Justice. We --
Earl Warren: Is there anything in the legislative history to detract from that view?
Richard A. Posner: Yes, we think there is. We think that the entire legislative history shows that when Congress incorporated certain provisions in certain -- incorporated some portions of state law in Section 36 (c) all it was concerned with was safeguarding the policies of those states which wanted to limit branch banking because they were concerned with certain evils that were felt to flow from that system. Had Congress meant to go further and place the National Banks in the state banks on a par. Well, we do not think it would have chosen the roundabout fashion of a statute like Section 36 (c), very complex in its provisions which sets forth certain limitations of state law as binding on the National Banks. But nowhere states that all limitations of state law are binding upon the National Banks and this connection --
Earl Warren: Is there anything -- is there any language in the Committee Reports of either House or in the debates on the floor that you reflect that statement? Can you point to anything that will enlighten us on that subject?
Richard A. Posner: We have -– we have in our brief set forth at length references to the debates which we believe show that this incorporation of state law had a rather limited purpose in protecting those states unlike Utah which do not want to have an unlimited branch banking system and I might just add that throughout the National Bank Act, in a number of provisions which respondent's brief in Number 73 and 88 sets out at length, Congress has expressly provided that state law shall be the measure of a National Bank's power. For example, a National Bank may not acquire a state bank “in contravention of state law” that is Section 214 (c) of Title 12. Section 36 (c) is not written along those lines. Congress could easily have said that National Banks shall not branch in contravention of the state law and it didn't do that instead it set forth some portions of state law that it was incorporated.
Earl Warren: I suppose that -- you could easily have said that if the –- if a state laws authorized branch banking of any kind that the Federal Government –- the National Banks were entitled to go in on any terms of control of that property.
Richard A. Posner: That's correct and that extreme --
Earl Warren: (Voice Overlap), they didn't say that, did they?
Richard A. Posner: That extreme which would have permitted the National Banks to branch irrespective of state law was also rejected and we certainly agree that there are some restrictions of state law which bind the National Banks but we don't think that all restrictions do and we don't think that Utah's restriction does.
Earl Warren: We'll recess, counsel; your time is up.