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The Year in Review: Economics at the Antitrust Division, 2020–2021

Abstract

Challenging anticompetitive acquisitions of nascent competitors is a top priority of the Antitrust Division of the U.S. Department of Justice. It is especially important that competition agencies remain vigilant of such acquisitions in platform markets, where indirect network effects and other market forces tend to preserve the status quo at the expense of smaller, more innovative rivals and potentially final consumers. This article discusses two such attempted acquisitions: (1) Visa’s acquisition of technology firm Plaid that threatened to disrupt Visa’s monopoly power in online debit; and (2) Sabre’s acquisition of Farelogix, which is a firm that allows airlines to connect directly to travel agencies and thereby disintermediates Sabre and other global distribution systems.

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Fig. 1

Notes

  1. 1.

    Structural presumptions rely on both the change in concentration and post-merger concentration as measured by the Herfindahl-Hirschman Index (HHI). See the 2010 Horizontal Merger Guidelines, available at: https://www.justice.gov/atr/horizontal-merger-guidelines-08192010.

  2. 2.

    Peters and Wilder (2020).

  3. 3.

    2010 Horizontal Merger Guidelines at 17.

  4. 4.

    Under U.S. antitrust law, courts typically define monopoly power as a firm’s ability “to control prices or exclude competition.” United States v. E. I. du Pont de Nemours & Co., 351 U.S. 377 (1956). Accordingly, firms can possess monopoly power with well less than 100% share of a relevant market.

  5. 5.

    There are other providers of online debit transactions that are not debit card networks: PayPal, including its subsidiary Venmo, is the largest by a wide margin. However, Visa and PayPal signed an agreement in 2016 that promotes Visa’s transactions over PayPal’s alternative online debit transactions. Other services are significantly smaller or—in the case of Zelle—have rules that prevent consumers from using the service to make payments to merchants.

  6. 6.

    Instant authorization involves the provider of the online debit transaction provider verifying that the consumer is allowed to make a transaction and that they have sufficient funds to pay for the transaction. Services such as Automated Clearinghouse (ACH) payments—which require only a consumer’s bank account and routing number—do not provide this instant authorization. Instead, merchants have to wait two or three days to find out whether the ACH payment clears, so as to learn whether the payment was successful.

  7. 7.

    Board of Governors (2021, p. 9).

  8. 8.

    Foster et al. (2020, p. 11).

  9. 9.

    Id. Interchange payments (from merchants’ banks to cardholders’ banks) were $24.31B, and cardholders’ banks paid 64.4% of $8.26B in network fees. The total cost of debit transactions also includes markups from the merchant’s bank, which are not included in these figures.

  10. 10.

    Felt et al. (2020).

  11. 11.

    See Complaint at ¶ 32, United States v. Visa Inc., No.20-cv-07810 (D.D.C. Nov. 5, 2020), available at https://www.justice.gov/atr/case-document/file/1334736/download.

  12. 12.

    Id. at ¶ 7. “Banks” include other depository institutions, such as savings institutions and credit unions.

  13. 13.

    Id. at ¶ 7.

  14. 14.

    Id. at ¶ 62.

  15. 15.

    Id. at ¶ 9.

  16. 16.

    Id. at ¶ 10.

  17. 17.

    See Complaint in U.S. v. Sabre Corporation, Sabre GLBL Inc., Farelogix, Inc., and Sandler Capital Partners V, L.P., available at https://www.justice.gov/opa/press-release/file/1196816/download.

  18. 18.

    GDSs also offer other travel content, such as hotel reservations. The Sabre–Farelogix case was focused only on technology that is specifically related to airlines.

  19. 19.

    See U.S. v. Sabre et al.. Memorandum Opinion at 27, available at https://www.justice.gov/atr/case-document/file/1277201/download.

  20. 20.

    Farelogix’s initial distribution offering included an aggregation platform that travel agencies could use to manage content from both GDSs and direct connects. Farelogix shut down its agency-facing business in or around 2009. Sabre Opinion at 27.

  21. 21.

    Id. at 24.

  22. 22.

    NDC technology relies on an open source XML-based messaging schema that standardizes how ancillary airline content is communicated via application programming interfaces (APIs). Farelogix developed the initial schema and donated it to the International Air Transport Association (IATA). Farelogix continues to play a leading role in the evolution of the shared schema. While the IATA schema is open source and standardized, there is significant customization that is required to conform each airline’s idiosyncratic offerings to the standard. Farelogix augments its NDC APIs with proprietary schemas that “fill the gaps.” Farelogix offers dedicated development teams to its airline customers, and operates a technology group that assists airlines in their establishment of connections to agencies or aggregators. Id. at 35.

  23. 23.

    Id. at 23.

  24. 24.

    Comments of Farelogix Inc., Apr. 30, 2013, In the Matter of Application for Approval of an Agreement (Resolution 787) Adopted by the International Air Transport Association, Docket OST-2013-0048, at 12–13, available at https://www.regulations.gov/document?D=DOT-OST-2013-0048-0342.

  25. 25.

    Sabre Opinion at 41–43.

  26. 26.

    Id. at 24.

  27. 27.

    Id. at 20.

  28. 28.

    Id. at 27.

  29. 29.

    Id. at 55.

  30. 30.

    Prior to abandonment, the Antitrust Division had filed a protective notice to preserve the option to appeal. Following abandonment, the Third Circuit Court of Appeals vacated the district court judgment as moot.

  31. 31.

    Ohio et al. v. Amex et al. Opinion of the Court. (available at https://www.supremecourt.gov/opinions/17pdf/16-1454_5h26.pdf and hereafter Amex Opinion).

  32. 32.

    Id. The precise four-point formulation is described in the dissenting opinion’s interpretation of the majority opinion at 15. It has been adopted by other courts; see, for example, US Airways, Inc., v. Sabre Corp., No. 17-960, 2d Cir. 2019.

  33. 33.

    Id. at 2.

  34. 34.

    Id. at 14.

  35. 35.

    Sabre Opinion at 70. The court also cited the substitutability of airline’s websites and competition from alternative NDC vendors as reasons for finding for the defense.

  36. 36.

    Technically, the Antitrust Division was not asking the court to find that Farelogix competes (horizontally) with Sabre’s two-sided platform. The “booking services” relevant market was described as a one-sided IT service that is sold only to airlines. Sabre booking services can be viewed as vertically related to Sabre’s two-sided platform, but are not an immutable part of the platform itself. Regardless of the precise horizontal versus vertical framing, the court’s finding that only a two-sided platform can compete would appear to bar any consideration of the competitiveness of an airline’s use of a Farelogix-enabled direct connect.

  37. 37.

    The Sabre court appears to have recognized the competitiveness of non-platform options when it accepted the parties’ contention that airlines’ own websites should be considered in the relevant market. The court concluded that, because airlines can steer some of their leisure ticket sales from OTAs (e.g. Expedia) to their own websites, the websites posed a competitive constraint on booking fees that GDSs charge for distribution via OTAs. The court accepted the parties’ contention that bookings market shares for the OTA segment of the market must also include bookings made via airline websites. Neither the parties nor the court explained how the inclusion of airline websites in the relevant market is consistent with the idea that non-platform alternatives cannot compete against two-sided platforms. Sabre Opinion at 77–80, 84.

  38. 38.

    Id. at 35, describing Farelogix’s “unique and deeply rooted position” in the market.

References

  1. Board of Governors of the Federal Reserve System. (2021). 2019 Interchange fee revenue, covered issuer costs, and covered issuer and merchant fraud losses related to debit card transactions. Retrieved September 16, 2021, from https://www.federalreserve.gov/paymentsystems/files/debitfees_costs_2019.pdf

  2. Felt, M., Hayashi, F., Stavins, J., & Welte, A. (2020). Distributional effects of payment card pricing and merchant cost pass-through in the United States and Canada. Federal Reserve Bank of Boston Research Department Working Papers 20-13. Retrieved September 16, 2021, from https://www.bostonfed.org/publications/research-department-working-paper/2020/distributional-effects-payment-card-pricing-merchant-cost-pass-through-united-states-canada.aspx

  3. Foster, K., Greene, C., & Stavins, J. (2020). The 2019 survey of consumer payment choice: Summary results. Federal Reserve Bank of Atlanta Research Data Reports 20-3. Retrieved September 16, 2021, from https://www.atlantafed.org/-/media/documents/banking/consumer-payments/survey-of-consumer-payment-choice/2019/2019-survey-of-consumer-payment-choice.pdf

  4. Peters, C., & Wilder, J. (2021). Ten years of the 2010 HMG: A perspective from the Department of Justice. Review of Industrial Organization, 58(1), 13–31.

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Correspondence to Jeffrey M. Wilder.

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Clark, B., Lien, J.S. & Wilder, J.M. The Year in Review: Economics at the Antitrust Division, 2020–2021. Rev Ind Organ (2021). https://doi.org/10.1007/s11151-021-09842-x

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Keywords

  • Antitrust
  • Debit cards
  • Payment cards
  • Airlines
  • Nascent competition