Whether a consumer in a two-sided transaction platform is a direct purchaser of transactions, where the platform operator takes the transaction fee directly from the consumer

QUESTION PRESENTED Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977) holds that plaintiffs who directly purchase products from an antitrust violator may sue to recover unlawful price overcharges; whereas, indirect purchasers may not sue. In traditional vertical distribution chains, where the product is resold down the chain, the doctrine is straightforward. But, Ohio v. American Express Co., 138 S.Ct. 2274 (2018) presents a novel twist on Illinois Brick’s rule that has enormous implications for the antitrust laws and the national economy. It holds that “two-sided transaction platforms” — i.e., business models (like credit cards) that facilitate transactions between consumers and merchants on either side of the platform — sell transactions directly to both consumers and merchants at the same time. In direct conflict with American Express and well-established antitrust precedents, the Second Circuit in this credit card transaction fee price-fixing case held that the petitioner cardholders do not purchase transactions from the payment card banks. In conflict with Apple Inc. v. Pepper, 139 S.Ct. 1514 (2019), it further held that cardholders are not direct payors of the transaction fee, even though the banks take the fee directly from the cardholders’ payments to merchants. The question presented is: Whether a consumer in a two-sided transaction platform is a direct purchaser of transactions, where the platform operator takes the transaction fee directly from the consumer.