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42 JREG Bulletin 1 (2024)

handle is hein.journals/jregb42 and id is 1 raw text is: How Epic v. Apple Operationalizes Ohio v. Amex John M. Yun? 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 uni- fied, integrated approach has been controversial, however. The primary de- bate 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 legal- ity ofvarious 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 operation- alized Amex in a practical, sensible way. The courts did not engage in exten- sive balancing across developers and users as some critics of Amex con- tended 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 prece- dent. Relatedly, the Epic decisions illustrate that the burden of production on plaintiffs in multisided platform cases is not higher than in cases involv- ing regular, single-sided markets. Additionally, both parties, whether litigat- ing single-sided or multi-sided markets, are fully incentivized to bring evi- dence to bear on all aspects of the case. Finally, this Article details how the integrated Amex approach deftly avoids potential issues involving the out- t Associate Professor of Law, Antonin Scalia Law School, George Mason University. Previously served as an Acting Deputy Assistant Director in the Bureau of Economics, Antitrust Division, at the U.S. Federal Trade Commission. I thank Thyme Hawkins, Kimberly Brooking, and Jaehee (Amy) Jung for excellent research assistance. I am also grateful to the editors of the Yale Journal on Regulation Bulletin for their careful and considered work on this Article's manuscript. 1

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