Antitrust Issues in Two-Sided Network Markets: Lessons from in Re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation

Abstract

In 2013, I served as a court-appointed expert in consolidated class and individual plaintiff antitrust litigation against Visa and Mastercard in the Eastern District of New York. The litigation involved a challenge to default interchange fees established by Visa and Mastercard, and to certain network rules imposed on affiliated merchants. My task was to assist the court in evaluating the merits of a proposed settlement. An evaluation of the reasonableness of the eventual settlement from an economic perspective entails a comparison between what the plaintiffs received in the proposed settlement and the expected returns to the plaintiffs of litigating the case to conclusion. The returns to litigation in turn depend on the prospects of establishing liability, the likely magnitude of damages and the nature of any injunctive relief conditional on liability, and of course the costs of litigation. In this commentary, I focus on the liability, damages, and injunctive relief issues because of their economic novelty and broader implications for other antitrust cases. The paper will appear in a symposium issue of Competition Policy International.