The U.S. Supreme Court announced on Oct. 16 that it would hear Ohio v. American Express, a case decided by the U.S. Court of Appeals for the 2nd Circuit in September 2016. The case concerns American Express’ nondiscrimination provisions, which the DOJ asserted were anti-competitive mechanisms that prohibited merchants from steering consumers to other credit cards. Although the DOJ won the trial in the District Court, the 2nd Circuit reversed.
In June 2017, 11 states filed a petition for writ of certiorari, asking the Supreme Court to clarify the rule of reason and contending that the burden of proof was on Amex to show the pro-competitive benefits of the nondiscrimination provisions because of the two-sided nature of the credit card market. In August, the DOJ took an unusual action in filing a brief that sides with the states while simultaneously urging the Supreme Court not to review the case. An argument date for the case has not yet been set.