How Can I Sign Ohio Travel Agency Agreement

How can i document type sign travel agency agreement ohio

in 2018 the supreme court ruled on a complex and controversial case called ohio versus american express that case had significant impacts on the antitrust world and particularly regarding the definition of a two-sided market hello and welcome to talks on law i'm joel cohen today we're joined remotely by julie elmer of the law firm freshfields julie welcome to talks on law thank you joel i'm glad to be here we're talking about amex today it's a controversial case maybe explain to the audience why if they don't already know sure so this case involves a concept that is very important in antitrust law and that's market definition so the plaintiff and in any trust case needs to be able to define the market where the defendant is allegedly harming competition and without a properly defined market it's tough for a court to determine whether or not a defendant's behavior has actually harmed competition and the american express case began about a decade ago in 2010 one thing that we might not think of is that these cases last so long or it takes so long for them to get to the high court that it may be an entirely different doj that brought the original case than the one who is involved in the supreme court review that's exactly right so um you know in 2010 the obama administration was running the doj and of course in 2018 that was under the trump administration and it was actually the group of states that took the case all the way to the united states supreme court so the states and the federal government had won at the trial court level and american express appealed to the second circuit and then the case went up to the united states supreme court what were those specific allegations i suppose in the case that were seen as anti-competitive by the lower court if a merchant wants to be able to use american express cards its contract with american express required it to accept an anti-steering provision and what that means is when a customer comes into a store and is about to buy something the merchant is not allowed to discourage the customer from using an american express card and the reason a merchant might do that would be to avoid the fee that american express charges merchants which i'm not sure if this is still the case at one point was a little bit higher than other carts that's exactly right and one of the reasons for that is that american express provides its card holders with pretty robust benefits you can earn miles there are other benefits that consumers had that was the point of the case is that the government was focused on the merchant side of the case the harm to merchants but it wasn't looking at the other side of the transaction platform which is the consumers and the consumers who are using the card were benefiting because the loyalty program this is the two-sided market that justice thomas rested the decision on yes that's right so justice thomas explained in the majority opinion that what american express is actually selling are transactions and one feature of what american express was selling was something that's called simultaneity so it is selling to merchants some transactional services at the same time that is selling a consumer transactional services and this is happening simultaneously that all seems uh fine but i suppose it comes down to how do you define what a two-market platform is yeah so justice thomas recognized in his opinions that not all two-sided platforms should be treated the same there are certain types of two-sided platforms called two-sided transactional platforms and the credit card services is a great example of what a two-sided transactional platform is where what is being delivered via that platform is a transaction and so the element of simultaneity exists that sounds like it could be a credit card company or a tech platform like uber or amazon a two-sided transactional platform can encompass a lot of technology platforms a lot of financial services but taken to the logical extreme almost anything could be a two-sided platform for example there was a case that was filed in a federal district court in illinois that was alleging that a group of dental insurers was engaging in anti-competitive practices and the dental insurers argued that the complaint did not properly define a relevant market because the dental insurance industry is a two-sided transactional platform and the district court in that case rejected that argument and they rejected the argument because consumers pay insurance premiums for insurance say every month but that doesn't correlate with when the consumer is going and visiting the dentist they might not even visit a dentist at all in a particular year maybe we need to understand what the two sides are is it the dentist has two partners on each transaction one is the insurance company that's paying and the other is the actual uh client who's in the dental chair see that that would be an our way of taking it to the extreme right but in this particular case it was the dental insurers that were arguing that hey we are operating a two-sided transaction platform we are connecting dentists on the one hand with consumers on another and the court did not buy that argument i said look you don't have the element of simultaneity here the consumers are paying their premiums every month whether they go to the dentist or not and then you guys when you reimburse the dentist your reimbursement does not correlate with the patient's payment of a premium it correlates with the dentist provision of services i mentioned in the introduction this case has been controversial so far you've explained some some interesting antitrust issues that it raises but what is i guess what's the meat why are practitioners up in arms about it yeah i think the reason why a lot of antitrust practitioners are talking about the american express case is because a few of the lower courts that have interpreted it so far have applied it in a way that could have far reaching consequences for any trust law going forward this particular case the american express case was a case involving an agreement between firms at different points in a supply chain that's called a vertical agreement in antitrust law so the case that justice thomas you know the majority opinion addresses did not involve for example an agreement between two competitors that's called a horizontal agreement it did not involve a firm with monopoly power and it did not involve the merger of two competitors and so taking american express and applying it to fact patterns that are different from the fact pattern of that original case might be problematic for any trust law going forward let's talk about how some courts have applied uh the amex case what have you seen in lower courts since yeah well so the majority opinion in american express says that only two-sided platforms can compete with a two-sided transaction platform and i think that's the statement in the opinion that can have far-reaching implications for how interest law is interpreted going forward and i'll give you an example there was a case called u.s airways versus saber it was the case in new york federal court and there a jury found that saber which is a travel technology firm had violated any trust laws because it had forced certain contract terms on its customer u.s airways which now is american airlines in that case a court applied amex how in that court the jury found that saber had violated the antitrust laws because it had harmed the airline but saber argued hey you shouldn't just look at the airlines side of thing we run a transaction platform here and we connect airlines and travel agents and what you need to do judge and jury is look at how our contracts impact the travel agent side of our platform when we charge higher fees to airlines or we require airlines to use our platform we have better quality product that we're able to offer to the travel agencies and we're able to pay the travel agencies higher incentive fees for using our product and so when you balance the airline side of the platform the impact on the airlines with the impact on the travel agents you get a net benefit overall to the way savers contracts operate in the travel industry and so that was their argument they wanted the trial court to instruct the jury to view the market as a two-sided market but the trial court did not do that and so the jury looked at it through the lens of a one-sided market the jury found in favor of the airline and then saber appealed to the second circuit and the second circuit held that the court should have instructed the jury to apply to look at this as a two-sided market so amex as a case is already controversial what did saber add in terms of of raising questions or or maybe confusion when it comes to this type of antitrust issue in the us airways versus saber opinion that came out of the second circuit the second circuit said that the market must include both sides of a two-sided transaction platform as a matter of law and that phrase as a matter of law is really important because traditionally in antitrust law market definition has been a fact question for the judge or the jury whoever the fact finder is to decide so while american express was a a new a new uh factor in any trust law sabre may be taking it even further yeah i think it took it further it also added a word so i'll read to you what the second circuit said they said that the american express court had held that in a case brought under the sherman act that involves a two-sided transaction platform the relevant market must always include both sides of the platform but the supreme court opinion doesn't use the word always that's a word that the second circuit added so in my view the second circuit over interpreted amex how about other cases that may be interpreting american express in a new way united states versus sabre is a merger case that was tried at the beginning of 2020 and in that particular case sabre so the same company that was involved in the litigation with us air sabr wanted to buy a small technology firm called fair logix and fairlogix offered services to airlines that were similar to some of the services that sabre offered to airlines verilogics however did not offer services to travel agents so unlike sabre fairlogix wasn't serving the other side of the platform they were really only competing on one side of the platform so the government sued to block saber from acquiring fair logics and saber argued at trial that hey we're a two-sided transaction platform the second circuit has held as a matter of law that we are and that only another two-sided transaction platform can compete with us so even though all of our business documents say that fairlogix is a competitor and we have our customers our airline customers say that fairlogix is a competitor you cannot hold that fairlogix is a competitor of ours because they are not a two-sided transaction platform and the trial court bought that argument did they buy it because of that as a matter of law quote that you mentioned from the second circuit so it was a combination of the american express opinion the supreme court opinion and the u.s air versus saber second circuit opinion those two opinions are very prominently featured in the district court's opinion in u.s versus sabre and what's troubling is that u.s versus saber is a different kind of case than either amex or u.s air so amex and usair both involved what's called a vertical agreement those are agreements between companies that are not competitors of each other they're at different points in the supply chain but in the united states case against sabre what the united states was trying to do was block the merger of two companies that were at least in certain services horizontal competitors with each other under a different law it's the clayton act section seven of the clayton act the other two cases were decided under section one of the sherman act and no other court had extended the amex two-sided market reasoning to a merger case under the clayton act so what the district court did really was taking the american express opinion and expanding it maybe to a fact pattern that really wasn't intended what was i supposed new or or surprising about this uh district court case so there's a very long-standing precedent it's called the united states versus brown shoe and it's a merger case that's been around since the 60s it's an old supreme court case that's still good law that was actually cited by justice thomas in his american express opinion and that case stands for the proposition that when you're looking at a merger the proper anti-trust market for purposes of assessing whether or not the merger violates the clayton act is what do the real world facts on the ground the commercial realities show you and the market should be defined around those commercial realities it's really saying hey you look at the real world you look at the facts on the ground and so the fact that you have the second circuit saying that as a matter of law you can't look at the facts on the ground if you have a two-sided transaction platform that to me is a departure from over 40 years of tradition 40. i'm doing my math wrong 60 years of tradition in antitrust law and it also raises uh an interesting question which is can a two-sided market company buy up any one-sided market companies that it wants without any fear of antitrust exposure joel that's a really great question and that was an argument that i made in my closing argument in the united states versus saber case oh this was back when you were a prosecutor that's right another concern that i have as a practitioner is that if american express is misinterpreted to a logical extreme that there's actually a risk of backlash because there are services out there and platforms out there that really are two-sided platforms and really should be viewed on both sides of the market and if you have a lot of decisions where the decision has been over interpreted to an extreme you can have a backlash and then the cases that should get the application might not given the impact of the american express case has congress taken a look at amending the actual underlying laws well so you know there's been a lot of talk about any trust reform lately if you're reading the papers or you know listening to the news and this summer there were some congressional hearings about any trust concerns and then in october the house majority put out a report that recommended some reforms to american anti-trust laws and one of the reforms that was recommended was a reform to overrule legislatively american express but i don't think we necessarily need legislative reform in order to beat back misapplications of american express i think the doj took a good first step in securing a vacature of that district court opinion in u.s versus sabre julie elmer thanks for joining us today thanks joel it was great to be here i really enjoyed speaking with you today [Music]